A. The Reduction of Public Assistance Benefits
Hart asserts a property interest in his state public assistance
benefits. (See Pl.'s Mem. of Law in Opp. to Def.'s Mot. for
Summ. J. ("Hart's Mem. in Opp.") at 8-9.) A recipient's property
interest in continuing welfare benefits is well-established. See
Goldberg v. Kelly, 397 U.S. 254, 261-62, 90 S.Ct. 1011, 25
L.Ed.2d 287 (1970); Reynolds v. Giuliani, 35 F. Supp.2d 331, 341
(S.D.N.Y. 1999); Richardson v. Kelaher, No. 97 Civ. 0428(LAP),
1998 WL 812042 at *4-5 (S.D.N.Y. Nov. 19, 1998). WCDSS argues
that Hart's due process claim fails because he neglected to
participate in a pre-deprivation fair hearing or a
post-deprivation proceeding in state court pursuant to N.Y. Civ.
Prac. L. & R. 7803(3) ("Article 78").
In general, "the Constitution requires some kind of a hearing
before the State deprives a person of liberty or property."
Zinermon v. Burch, 494 U.S. 113, 127, 110 S.Ct. 975, 984, 108
L.Ed.2d 100 (1990). This principle applies with heightened
scrutiny in the context of welfare benefits. Welfare recipients
rely on their benefits for their survival, and thus are
constitutionally guaranteed an evidentiary hearing before their
benefits are discontinued. Goldberg, 397 U.S. at 264, 90 S.Ct.
at 1018 (1970) (requiring a pretermination hearing because
"termination of aid pending resolution of a controversy may
deprive an eligible recipient of the very means by which to live
while he waits"); see also Richardson, 1998 WL 812042 at *5.
Although Hart's public assistance benefits were not terminated,
the reduction of benefits rendered him homeless. See
Richardson, 1998 WL 812042 at *5 (applying Goldberg standards
to an New York City Department of Social Service's decision to
restrict public assistance due to plaintiff's eligibility for
Social Security income).
Due process in this circumstance requires that Hart be given
timely and adequate notice detailing the reasons for the
termination of benefits, and an effective opportunity to be heard
at an evidentiary hearing. Richardson, 1998 WL 812042 at *5
(citing Goldberg, 397 U.S. at 267-68, 90 S.Ct. at 1020); see
also Atkins v. Parker, 472 U.S. 115, 148, 105 S.Ct. 2520, 2539,
86 L.Ed.2d 81 (1985) (requiring "timely and adequate notice
detailing the reasons" for proposed adverse administrative
action). The hearing "need not take the form of a judicial or
quasi-judicial proceeding" but must be held "at a meaningful time
and in a meaningful manner." Goldberg, 397 U.S. at 267, 90
S.Ct. at 1020; Richardson, 1998 WL 812042 at *5.
Apart from the question of whether WCDSS sent timely notice,
which presents a triable issue of fact, WCDSS's notice must have
also been adequate. Under the Goldberg requirements for
adequate notice, a public welfare recipient must be given
information sufficient to avail him of the opportunity to defend
the impending termination of his benefits. See Richardson, 1998
WL 812042 at *5 (citing Henry v. Gross, 803 F.2d 757, 766 (2d
Cir. 1986)). Written notice must include a statement of what
action the agency intends to take, the reasons for the intended
agency action, the specific regulations supporting such action,
explanation of the individual's right to request an evidentiary
hearing, and the circumstances under which assistance is
continued if a hearing is requested. See Richardson, 1998 WL
812042 at *5 (comparing federal notice standards under
45 C.F.R. § 205.10(a)(4)(i)(B), enacted pursuant to Goldberg, and
"similar although not identical" regulatory provisions adopted by
New York law in 18 N.Y. Comp.Codes R. &
Regs. § 358); see also Catone v. Spielmann, 966 F. Supp. 1288,
1298 (N.D.N.Y. 1997) (adversely affected party was entitled to
"oral or written notice of the charges against him, an
explanation of the employer's evidence, and the opportunity to
present his side of the story").
The last line of WCDSS's Reduction Notice advises: "You have
the right to appeal this decision. Be sure to read the back of
this notice on how to appeal." However, because WCDSS did not
provide the back of the notice, this Court has no way of
determining whether Hart received adequate information about his
right to appeal.
WCDSS claims that the notice is irrelevant because Hart could
have sought a post-deprivation hearing proceeding in state court
pursuant to N.Y. Civ. Prac. L. & R. 7803(3) ("Article 78").
However, "[o]nce a cause of action for a constitutional violation
accrues, nothing the state does can subsequently cut-off the §
1983 action." Patterson v. Coughlin, 761 F.2d 886, 893 (2d Cir.
1985); see also Richardson, 1998 WL 812042 at *6 quoting Carey
v. Piphus, 435 U.S. 247, 266, 98 S.Ct. 1042, 1053, 55 L.Ed.2d
252 (1978) (Procedural due process does not depend upon the
merits of a claimant's substantive assertions.). Accordingly,
WCDSS motion for summary judgment with respect to its reduction
of Hart's public assistance grant is denied.
B. Denial of Emergency Assistance
Hart claims that WCDSS violated his right to due process by
wrongly denying him emergency benefits. (Pl.'s Mem. in Opp. at
8.) WCDSS argues that Hart was not entitled to emergency
benefits, and that Hart failed to participate in a
pre-deprivation fair hearing or a post-deprivation Article 78
To hold a property interest in emergency benefits, Hart must
have "more than a unilateral expectation" but a "legitimate claim
of entitlement" to that benefit. See Bd. of Regents v. Roth,
408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972);
McMenemy v. City of Rochester, No. 00-7199, 2001 WL 208999 at
*6 (2d Cir. Mar. 2, 2001). The amount of discretion in awarding a
benefit determines whether a claim to entitlement exists. See
Colson ex rel. Colson v. Sillman, 35 F.3d 106, 108 (2d Cir.
1994); Luck v. Mazzone, 52 F.3d 475, 477 (2d Cir. 1995)
(internal citation omitted) (entitlement derives from "existing
rules or understandings that stem from an independent source such
as state law."). New York State regulations provide in part:
Each social services district shall, when provision
cannot otherwise be made, grant EAA to meet emergency
needs of eligible persons residing in the district
[for] . . . rent incurred during the four-month
period prior to the month in which such person
applies for emergency assistance for adults when
payment of such expenses is necessary to prevent
eviction and in the judgment of the social services
official, other housing accommodations appropriate
for the person's best interest are not available in
N Y Comp.Codes R. & Regs., tit. 18 § 397.5(3) (emphasis added).
So long as an applicant meets all other EAA eligibility
requirements, he is entitled to either an EAA grant or a
determination that more appropriate housing is available.
The reason for WCDSS's denial of EAA is unclear. WCDSS's notice
of denial explained that because Hart's state public assistance
grant was reduced to $58 per month, WCDSS could not "capture"
Hart's future rent for payment directly to the landlord. (Water
Decl. Ex. L: Notice Denying
Emergency Assistance.) In its supporting declaration, WCDSS
argues that its EAA denial was based on Hart's failure to pay his
rent in the past and the lack of any "indication that he was
capable of maintaining his residence in the future." (Reply Decl.
¶ 4.) WCDSS also argues that it denied Hart's application because
"he had the means to pay [h]is own rent, if he so chose." (Reply
Decl. ¶ 5.) WCDSS's contradictory statements regarding the bases
for its EAA denial do not adequately rebut Hart's assertion that
he had a property interest in EAA assistance.
Moreover, New York law provides that an individual is
ineligible for EAA assistance or any other state program, New
York's Emergency Home Relief ("EHR") offers a one-time emergency
assistance payment to people facing eviction*fn1 for nonpayment
of rent. See 18 N.Y. Comp. Codes R. & Regs., tit. 18 § 370;
see also Kelly v. Kaladjian, 155 Misc.2d 652, 653-54,
589 N.Y.S.2d 730, 732 (N.Y. County 1992). The EHR program provides in
Social services districts must authorize safety net
assistance to provide for . . . (1) an identified
emergency need . . . [i.e.] a serious occurrence or
situation needing prompt action . . . (2) [to an]
individual . . . without income or resources
immediately available to meet the emergency need . .
. (3) [when] the emergency need cannot be met under .
. . safety net assistance programs. . . . (5) . . .
To receive assistance to pay shelter arrears, the
applicant must sign an agreement to repay the
assistance in a period not to exceed 12 months from
receipt of such assistance. The repayment agreement
must set forth a schedule of payments that will
assure repayment within the 12-month period.*fn2
N Y Comp.Codes R. & Regs., tit. 18 § 370.3 (emphasis added).
WCDSS does not address Hart's assertion of a property interest in
Instead, WCDSS responds that Hart could have sought redress
through a fair hearing and, if necessary, an Article 78
proceeding for judicial review. See, e.g., N.Y. Soc. Serv. Law
¶ 22(1) (fair hearing); N.Y. Civ. Prac. L. & R. § 7803(2), (3).
On April 1, 1996, Hart requested a fair hearing which WCDSS
finally scheduled for July 3, 1996. The reasons behind the three
month delay*fn3 have not been explicated in the record on this
motion. Indeed, WCDSS does not contest Hart's assertion that the
delay in scheduling the expedited hearing constitutes the due
process violation. WCDSS offers no facts or law suggesting that a
90-day delay for a fair hearing on the denial of EAA or EHR
benefits affords Hart the process that is due. Accordingly,
WCDSS's motion for summary judgment is denied with respect to
Hart's procedural due process claim regarding WCDSS's denial of
emergency welfare benefits.
III. Hart's Equal Protection Claim
Hart alleges that WCDSS allows whites unfettered access to
assistance grants while restricting African-Americans from those
benefits. (Pl.'s 56.1 Stmt. ¶ 6.) The Equal Protection Clause of
the Fourteenth Amendment commands that no state shall "deny to
any person within its jurisdiction the equal protection of the
laws." U.S. Const. amend. XIV., § 1. At its core, the Equal
Protection Clause prohibits the disparate treatment of similarly
situated individuals. City of Cleburne v. Cleburne Living
Center, 473 U.S. 432, 439, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313
(1985); Plyler v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382, 2394,
72 L.Ed.2d 786 (1982). Thus, the threshold inquiry in any equal
protection analysis is whether the defendants treated the
complainant differently than others who were similarly situated.
See Cleburne, 473 U.S. at 439, 105 S.Ct. at 3254; see also
Cuoco v. U.S. Bureau of Prisons, No. 98 Civ. 9009(WHP), 2001 WL
167694, at *4 (S.D.N.Y. Feb. 16, 2001). To prove an equal
protection violation, the plaintiff must prove purposeful
discrimination directed at an identifiable or suspect class. See
Kadrmas v. Dickinson Pub. Schs., 487 U.S. 450, 457-58, 108 S.Ct.
2481, 2487, 101 L.Ed.2d 399 (1988).
Hart offers no evidence of disparate treatment and relies
solely on his conclusory statement that "[u]pon information and
belief, the defendant provides similarly situated white persons
emergency assistance grants without such restrictions to prevent
their homelessness as well as other . . . service mandated under
[New York law.]" (Hart Aff. ¶ 31.) Hart's unsupported allegation
is not sufficient to defeat summary judgment. See Shumway v.
United Parcel Serv., Inc., 118 F.3d 60, 65 (2d Cir. 1997);
Cuoco, 2001 WL 167694, at *4 (bald faced allegations of an
equal protection violation insufficient as a matter of law);
Wilke v. Wing, No. 96 Civ. 1360, 1998 WL 690864 at *5 (N.D.N Y
Sept. 30, 1998) (summary judgment granted where equal protection
claim was supported only by sweeping allegations).
D. Racial Discrimination Under 42 U.S.C. § 1981
To state a claim under 42 U.S.C. § 1981, Hart must set forth
facts establishing: (1) membership in a racial minority, (2)
intent to discriminate on the basis of race by defendant, and (3)
discrimination concerning one or more of the activities
enumerated in the statute. Mian v. Donaldson, Lufkin & Jenrette
Secs. Corp., 7 F.3d 1085, 1087 (2d Cir. 1993). Mere conclusory
allegations do not suffice to support a section 1981 claim.
Yusuf v. Vassar College, 35 F.3d 709, 713-14 (2d Cir. 1994).
Hart's affidavit states only that WCDSS "provides similarly
situated white persons emergency assistance grants without
restrictions to prevent their homelessness." (Hart Aff. ¶ 31.)
Hart's mere suspicion or surmise is inadequate to support a
section 1981 claim. See Ghaznavi v. Days Inns of Am., 91 Civ.
4520(MBM), 1993 WL 330477 at *3 (S.D.N.Y. Aug 20, 1993).
Accordingly, WCDSS's motion for summary judgment with respect to
Hart's section 1981 claim is granted.
V. Intentional Infliction of Emotional Distress
To state a claim for intentional infliction of emotional
distress under New York law, Hart must show: (1) extreme and
outrageous conduct; (2) intent to cause, or reckless disregard of
a substantial probability of causing, severe emotional distress;
(3) a causal connection between the conduct and the injury, and
(4) severe emotional distress. See Arena v. Agip, No. 95 Civ.
1529(WHP), 2000 WL 264312 at *4 (S.D.N.Y. Mar. 8, 2000); Howell
v. New York Post Co., 81 N.Y.2d 115, 121, 596 N.Y.S.2d 350, 353,
612 N.E.2d 699 (1993). "`Liability has been
found only where the conduct has been so outrageous in character,
and so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intolerable
in a civilized society.'" Arena, 2000 WL 264312 at *4 (internal
citations omitted). At most, Hart alleges that WCDSS personnel
made the wrong decision within the scope of their employment.
Hart's allegations do not rise to the level of "extreme and
outrageous" conduct contemplated by New York law. See, e.g.,
Stuto v. Fleishman, 164 F.3d 820 (2d Cir. 1999) (alleged acts of
coercion and misrepresentation causing denial of disability
benefits were not extreme and outrageous conduct); Martin v.
Citibank, N.A., 762 F.2d 212, 220 (2d Cir. 1985) (even if bank
employee established that she was polygraphed by her employer
because of her race, such conduct would not have provided legally
adequate grounds for intentional infliction of emotional distress
claim under New York law); Nevin v. Citibank, N.A.,
107 F. Supp.2d 333, 345 (S.D.N.Y. 2000) (allegations that racial
profiling caused department store to single out shopper for
surveillance, inquiry, and police investigation did not meet the
extraordinarily high bar set for tort of intentional infliction
of emotional distress). Accordingly, WCDSS is granted summary
judgment on Hart's intentional infliction of emotional distress
VI. Punitive Damages against a Municipality
Punitive damages are not available in a section 1983 action
against a municipality except in an "extreme situation where the
taxpayers are directly responsible for perpetrating an outrageous
abuse of constitutional rights." City of Newport v. Fact
Concerts, Inc., 453 U.S. 247, 267 n. 29, 101 S.Ct. 2748, 2760 n.
29, 69 L.Ed.2d 616; see also Ciraolo v. City of New York,
216 F.3d 236, 240 (2d Cir. 2000); Ivani Contracting Corp. v. City of
New York, 103 F.3d 257, 262 (2nd Cir. 1997). Hart makes no
allegation that the taxpayers are responsible for the denial of
his benefits. Accordingly, summary judgment is granted to WCDSS
with respect to Hart's claim for punitive damages.
VI. Rule 37(b) Sanctions Motion
On March 24, 2000, Hart submitted a motion pursuant to Rule
37(b)(2)(B) of the Federal Rules of Civil Procedure to preclude
WCDSS from "offering any evidence [at] trial on the issue of
whether denial of the public assistance benefits was proper."
(See Affidavit of Herbert Hart, dated Apr. 18, 2000.) Hart
asserts that he served discovery requests for records documenting
the food stamps and housing payments made on Hart's behalf from
1989 through 1996, but that WCDSS responded only with records for
1995 and 1996. WCDSS responds that it provided all records
relating to this request still in its possession, and that
records prior to 1995 have been purged pursuant to WCDSS policy.
(See Decl. of Joan C. Waters, dated April 18, 2000 ¶ 6.)
A party's failure to comply with discovery orders may be
sanctioned consistent with Rule 37(b)(2)(B), which authorizes
courts to impose various sanctions, including the preclusion of
evidence. Rule 37(d) extends these sanctioning powers to parties
who do not respond to discovery requests. However, preclusion of
evidence is a harsh remedy, "justified . . . when the failure to
comply with a court order is due to willfulness or bad faith, or
is otherwise culpable." Daval Steel Prods. v. M/V Fakredine,
951 F.2d 1357, 1365 (2d Cir. 1991); see also John B. Hull, Inc.
v. Waterbury Petroleum Prods., Inc., 845 F.2d 1172, 1176 (2d
Cir. 1988) (dismissal under Rule 37 is justified where party
"fails to comply
with the court's discovery orders willfully, in bad faith, or
through fault"). Hart filed his complaint on January 28, 1998,
more than three years after the creation of the records. WCDSS
had no notice that it should preserve these records, and Hart has
not demonstrated that WCDSS acted in the culpable manner that
would warrant the sanction of preclusion. Accordingly, Hart's
Rule 37(b)(2)(B) motion is denied.
WCDSS's motion for summary judgment with respect to plaintiff's
due process claim regarding the reduction of his state public
assistance grant benefits and denial of emergency benefits is
denied. WCDSS's motion for summary judgment with respect to
Hart's claims under the Equal Protection Clause,
42 U.S.C. § 1981, and for intentional infliction of emotional distress, and
punitive damages is granted. Hart's Rule 37(b)(2)(B) motion for
discovery sanctions is denied. A pretrial conference in this
matter is scheduled for May 4, 2001 at 11:15 a.m.