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MARINOFF v. U.S. HUD

September 19, 1994

ROSLYN C. MARINOFF, Plaintiff, against U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, Defendants.


The opinion of the court was delivered by: KATHLEEN A. ROBERTS

REPORT AND RECOMMENDATION

 TO THE HONORABLE KIMBA M. WOOD:

 Plaintiff commenced this action pro se pursuant to the Fair Housing Amendments Act of 1988 ("FHA"), 42 U.S.C. §§ 3601-3619, 3631 (1988), *fn1" alleging that the Department of Housing and Urban Development ("HUD") failed to properly investigate plaintiff's allegations of discrimination and retaliation by the housing project in which she lives, and requesting that the court direct HUD to conduct a proper investigation. Defendant moves to dismiss the complaint for failure to state a claim, pursuant to Fed. R. Civ. P. 12(b)(6).

 For the reasons set forth below, I recommend that defendant's motion to dismiss be granted.

 PROCEDURAL BACKGROUND

 Plaintiff lives in the Lincoln Guild apartment building ("Lincoln Guild") in Manhattan, which, according to the complaint, is a federally assisted urban renewal project under Title I of the Housing Act of 1949. Complaint P 4. She contends that Lincoln Guild has discriminated against blacks and hispanics with respect to the allocation of apartments. Complaint PP 8, 10. Plaintiff filed a complaint with HUD in December 1991. Complaint P 2. HUD closed plaintiff's complaint on March 11, 1992, stating that because plaintiff had "failed to identify a discriminatory act which has occurred within one year of the filing date," her complaint was not timely filed. Letter from HUD to Plaintiff of March 11, 1992 (attached to Plaintiff's Memorandum of Law to Restrict Defendant[']s Request to Dismiss This Case ("Pl. Mem.")).

 On December 7, 1993, plaintiff filed the instant complaint, stating that she:

 
filed a discrimination claim with the U.S. Department of Housing and Urban Development (HUD) to remedy the violations of the Fair Housing Act going on at the Housing Project where she lives. (HUD) had a duty to give this case a proper investigation but they did not and that is why it is before your Court today.
 
The Plaintiff[']s request to the Court is to have a proper investigation carried out regarding her discrimination allegations * * * and for affirmative steps to be taken to correct them.
 
And for the Court to take affirmative steps to stop the serious forms of retaliation targeted at the complainant for her involvement in bringing forth this serious discrimination case * * * which under the Fair Housing Act both these charges should have been protected and investigated by HUD * * * But were not.

 Complaint PP 16-18.

 On June 30, 1994, defendant moved to dismiss the complaint and submitted a Memorandum of Law in Support of Defendant's Motion to Dismiss the Complaint for Failure to State a Claim ("Def. Mem."). Defendant based its motion to dismiss on the following grounds: 1) plaintiff has no implied or express right of action against HUD; and 2) HUD's determination is not reviewable under the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-706 (1988). Def. Mem. at 5-10.

 On August 26, 1994, plaintiff submitted a memorandum of law in opposition to defendant's motion to dismiss, restating her allegations of an inadequate investigation by HUD and improper treatment by HUD employees. Pl. Mem. at 1-3. Plaintiff also submitted copies of letters written to HUD officials to document her allegations of mistreatment by HUD employees. See Letter from Plaintiff to Burton Bloomberg, Acting Regional HUD Administrator, of July 15, 1994 (attached to Pl. Mem.). Defendant responded by letter on September 8, 1994, stating that because plaintiff's memorandum failed to address any of the issues raised in defendant's motion to dismiss, defendant would rely on the arguments set forth ...


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