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United States District Court, E.D. New York

August 17, 2005.

ENRIQUE REID, Plaintiff,

The opinion of the court was delivered by: FREDERIC BLOCK, District Judge


Plaintiff Enrique Reid ("Reid") brings this pro se action against his former landlord, defendant Jeffrey Zackenbaum ("Zackenbaum"), alleging that Zackenbaum violated his rights by locking Reid out of his apartment and discarding Reid's medicines and other personal property. The Court grants Reid's request to proceed in forma pauperis and reviews the sufficiency of his complaint sua sponte, pursuant to 28 U.S.C. § 1915(e)(2)(B). Although Reid's complaint does not allege any cognizable federal claim, he is granted leave to amend his complaint within 30 days of the filing of this Memorandum and Order to afford him the opportunity to do so.


  The Court gleans the following facts and circumstances from a liberal reading of Reid's complaint. See McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004) ("when [a] plaintiff proceeds pro se, . . . a court is obliged to construe his pleadings liberally"). For some time until February 20, 2005, Reid lived in an apartment building owned by Zackenbaum at 200 Irving Avenue, Brooklyn. On February 20, 2005, thinking he would be admitted to a hospital later that day, Reid signed a document which Zackenbaum or his employees said was "just a move-out form." Complaint at ¶ 4. Reid, who alleges that he is legally blind and dying of AIDS, apparently could not or did not read the document. While the exact nature and legal significance of the document is therefore not alleged in the complaint, the injunctive relief requested by Reid suggests that this document was an agreement terminating Reid's lease.

  Shortly after signing this document, Reid learned that he would not be admitted to the hospital after all. He made prompt efforts to rescind the February 20 agreement. On February 21, 2005, Reid verbally informed Zackenbaum that he would not be moving. The next day, Reid sent Zackenbaum a notarized letter to that effect by certified mail. Despite being so notified, Zackenbaum locked Reid out of the apartment. Zackenbaum also discarded medicines and other personal property that Reid had left in the apartment.

  On February 25, 2005, Reid went to "court" to attempt to regain access to the apartment. Reid's complaint does not identify the "court," although the fact that Reid seeks to recover "court cost[s]" incurred in "Landlord Tenant Civil Court Applet [sic] Court and Federal Court," id. at ¶ 5, suggests that Reid pursued this action in the Landlord-Tenant Division of the Housing Part of the Civil Court of the City of New York and, perhaps, appealed to the Supreme Court, Appellate Term. The complaint also does not indicate the outcome of these legal proceedings. The complaint implies that the court, referring to papers filed by Zackenbaum in an earlier action, errantly believed that Reid owed $2,000 in rent and denied him relief. Id. at ¶ 4. However, the ad damnum clause of the complaint, which requests that this Court "enforce a judgment," id. at ¶ 5, suggests that Reid obtained a judgment in his favor.

  On March 17, 2005, Reid commenced this action. Although the caption of the complaint names only Zackenbaum as a defendant, allegations in the body of the complaint provide addresses for both Zackenbaum and his attorney, Benjamin Epstein. Id. at ¶ 2. The complaint alleges that "Defendant and Attorney for Defendant Violated the Federal American Disability Act . . . and may also have violated the civil law of Enrique Reid 42 USC 1331." Id. at ¶ 3. Reid seeks monetary damages to compensate for the "mental anguish" caused by the lockout and the "pain [and] suffering" resulting from exacerbation of Reid's physical ailments. Id. at ¶¶ 4-5. Reid also seeks "to enforce a judgment . . . that [he] retain . . . apartment 1B or other vacant apartment at 200 Irving Avenue . . . or that [he] be grant[ed] financial restitution . . . sufficient for a new apartment and medicines as well as personal property." Id. at ¶ 5. Finally, Reid seeks injunctive relief: an order requiring Zackenbaum (1) to read aloud to a tenant the provisions of any document he asks the tenant to sign, and (2) to grant a tenant five days to move his or her property from his or her apartment after signing "an agreement." Id. II.

  A. Standard of Review

  Under 28 U.S.C. § 1915(e)(2)(B), a district court must dismiss a case if the court determines that the action "(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." An action is frivolous as a matter of law when, inter alia, it is based on an "indisputably meritless legal theory" — that is, when it "lacks an arguable basis in law . . ., or [when] a dispositive defense clearly exists on the face of the complaint." Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). "[A] court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Swierkiewicz v. Sorema, 534 U.S. 506, 514 (2002) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)). However, if a liberal reading of the complaint "gives any indication that a valid claim might be stated," the Court must grant leave to amend the complaint. Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999). See also Frazier v. Coughlin, 850 F.2d 129, 130 (2d Cir. 1988) ("A pro se plaintiff who brings a civil rights action should be `fairly freely' afforded an opportunity to amend his complaint") (citing Satchell v. Dilworth, 745 F.2d 781, 785 (2d Cir. 1984)).

  B. Claims Arguably Indicated

  Reid's complaint implies that Reid is seeking to establish federal question jurisdiction under 28 U.S.C. § 1331, which grants district courts jurisdiction over "all civil actions arising under the Constitution, laws, or treaties of the United States." Reid attempts to identify specific federal statutes, alleging that Zackenbaum and his attorney violated "the Federal American Disability Act" and may have violated "the civil law of Enrique Reid 42 USC 1331." Complaint at ¶ 3. The Court will construe Reid's complaint as suggesting violations of the Fair Housing Amendments Act, 42 U.S.C. § 3601 et seq. (the "FHAA"), the public accommodations and public services provisions of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. (the "ADA"), section 504 of the Rehabilitation Services Administration Act, 29 U.S.C. § 794 (the "Rehabilitation Act"), and the Civil Rights Act of 1871, 42 U.S.C. § 1983 ("§ 1983").

  1. FHAA Claims

  The FHAA provides, in relevant part, that it is unlawful to "discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of . . . that buyer or renter." 42 U.S.C. § 3604(f)(1). The FHAA applies to the sale and rental of any property "designed or intended for occupancy as a residence by one or more families." 42 U.S.C. § 3602(b). A plaintiff seeking recovery under the FHAA can establish discrimination under three theories: (1) disparate treatment; (2) disparate impact; (3) failure to make a reasonable accommodation. See Tsombanidis v. West Haven Fire Dept., 352 F.3d 565, 573 (2d Cir. 2003). Reid fails to state a claim under the disparate impact or reasonable accommodation theories; however, a liberal reading of his complaint suggests that he may be able to state a claim of disparate treatment.

  To establish disparate impact, the plaintiff must show "(1) the occurrence of certain outwardly neutral practices, and (2) a significantly adverse or disproportionate impact on persons of a particular type produced by the defendant's facially neutral acts or practices." Tsombanidis, 352 F.3d at 575. The basis for a successful disparate impact claim involves a comparison between those groups who are adversely affected by a practice because of their disability, and those unaffected by it. See id. Construing Reid's complaint liberally, the Court will assume that the facially neutral act alleged by Reid is Zackenbaum's practice of not reading documents to tenants. Reid's complaint does not allege, nor is there any indication in the complaint, that there are other blind or disabled tenants and that this practice produces a significantly adverse or disproportionate impact on such tenants; rather, at most he alleges that it produced an adverse impact on him.

  Reid also does not state a claim under the FHAA by alleging a failure to make reasonable accommodations. "To prevail on a reasonable accommodation claim, plaintiffs must first provide the [defendant] an opportunity to accommodate them through the entity's established procedures used to adjust the neutral policy in question." Tsombanidis, 352 F.3d at 578. The complaint does not suggest that Reid asked for any accommodations, such as requesting that Zackenbaum read the document to him, provide him with a braille version, or give him time to find someone else to read the document, and that Zackenbaum then refused to accommodate him.

  To show disparate treatment, a plaintiff must demonstrate that "discriminatory purpose was a motivating factor" in defendant's action. See Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 270 (1977). A complaint alleging discrimination must contain only "a short and plain statement of the claim showing that the pleader is entitled to relief." Sweirkiewicz, 534 U.S. at 512 (citing Fed. Rule Civ. Proc. 8(a)(2)) (internal quotations omitted). To withstand dismissal, however, a complaint alleging discrimination cannot rest on conclusory allegations of discrimination, but must contain "facts supporting the grounds upon which [the] claim of . . . discrimination rests." Straker v. Metropolitan Transit Authority, 333 F. Supp. 2d 91, 102 (E.D.N.Y. 2004).

  Reid's complaint is barren of any allegation of discrimination because of his disability; rather, Reid asserts only that he has a disability, and that he was wronged in a housing matter when Zackenbaum took advantage of his disability. The actions recited in the complaint, reprehensible as they may be, do not allege discrimination prohibited by the FHAA. See Garcia v. S.U.N.Y. Health Sciences Center, 280 F.3d 98, 112-13 (2d Cir. 2001) (affirming dismissal of complaint under the ADA where plaintiff's allegations were "devoid of any contention that [defendants] were motivated by irrational discriminatory animus or ill will based on his alleged learning disability" and plaintiff alleged "simply that [defendant] denied him the accommodations he sought"); Wiexel v. Board of Education, 287 F.3d 138, 146-47 (2d Cir. 2002) (stating that a pro se plaintiff's complaint is sufficient to withstand dismissal under the ADA and Rehabilitation Act "if it alleges that . . . [plaintiff] has been denied [a] benefit by reason of her disability") (emphasis added). Although there may be cases where discrimination can be inferred from the facts of a complaint where the pleading does not explicitly allege discrimination on the basis of a disability, none of the facts in Reid's complaint, nor the relief sought, suggest that Zackenbaum's termination of the lease was motivated by discriminatory ill will. Nonetheless, the nature of the allegations are such that the Court will grant Reid leave to amend his complaint to allege, if he can do so in good faith, the necessary element of discriminatory motivation to support a claim of disparate treatment, which would require him to set forth facts sufficient to give notice of the grounds upon which the claim of discrimination is based. See Straker, 333 F. Supp. 2d at 102.

  2. ADA Claims

  Reid fails to state a claim under the public accommodation provision of the ADA; however, because his complaint suggests that he may be able to state a claim under the public services provision of the ADA, the Court grants Reid leave to amend in regard to that claim.

  To state a claim for discrimination under the ADA, a plaintiff must allege (1) that he is a "qualified individual" with a disability; (2) that the defendant is subject to the ADA; and (3) that the plaintiff was "denied the opportunity to participate in or benefit from defendants' services, programs, or activities, or was otherwise discriminated against by defendants, by reason of [his] disability." See Henrietta D. v. Bloomberg, 331 F.3d 261, 288 (2d Cir. 2003) (emphasis added). The public accommodation provision of the ADA prohibits discrimination against any individual on the basis of disability "by any person who owns, leases (or leases to), or operates a place of public accommodation." 42 U.S.C. § 12182. "Public accommodation" includes "an inn, hotel, motel or other place of lodging, except for an establishment located within a building that contains not more than five rooms for rent or hire and that is actually occupied by the proprietor of the establishment as the residence of such proprietor." 42 U.S.C. § 12181. A residential facility, such as an apartment, is not a public accommodation under the ADA. See Independent Housing Services of San Francisco v. Fillmore Center Assocs. 840 F. Supp. 1328 (N.D. Cal. 1993); see also Daniel Finkelstein and Lucas A. Ferrara, N.Y. Practice, Landlord and Tenant Practice in New York, § 5:61. Because Reid is alleging discrimination in connection with a place of residence, he fails to state a claim that is subject to the ADA under the public accommodation provision of that act.

  However, the public services provision of the ADA separately "provides disabled individuals redress for discrimination by a `public entity.'" Gentile v. Town of Huntington, 288 F.Supp.2d 316, 322 (E.D.N.Y. 2003) (quoting Hallett v. N.Y.S. Dep't of Correctional Services, 109 F.Supp.2d 190, 199 (S.D.N.Y. 2000)); see also 42 U.S.C. § 12132 ("no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity."). A "public entity" under the ADA includes, inter alia, "any department, agency, special purpose district, or other instrumentality of a State or States or local government," 42 U.S.C. § 12131, and a suit brought against an individual acting in his or her official capacity will be considered a suit against a "public entity." Henrietta D., 331 F.3d at 272.

  Reid's complaint does not allege whether he resided in public housing, and whether his landlord's actions were taken in his official capacity on behalf of the New York City Housing Authority ("NYCHA"), which is a public entity under the ADA. Reid's ADA claim is also deficient because, as with his potential FHAA claim, it does not contain allegations which suggest that Reid's landlord discriminated against him "by reason of" of his disability. Because there is nothing in Reid's complaint to suggest that he was not residing in housing administered by NYCHA, such that an ADA claim would be foreclosed, and because Reid may be able to allege in good faith that Zackenbaum was acting on behalf of NYCHA and terminated Reid's lease because he was disabled, the Court grants Reid leave to amend.

  3. Rehabilitation Act Claims

  Reid should also be allowed the opportunity to amend his complaint to properly allege a claim under the Rehabilitation Act. The Rehabilitation Act prohibits discrimination on the basis of handicap in programs receiving federal financial assistance, see 42 U.S.C. § 794, which includes discrimination in Section 8 housing programs. See 24 C.F.R. § 8.1 et seq. In order to state a claim for discrimination under the Rehabilitation Act, a plaintiff must further allege that a defendant's action was taken "solely by reason of [plaintiff's] handicap." Doe v. New York University, 666 F.2d 761, 777 (2d Cir. 1981).

  Reid's complaint does not explain whether he lived in housing subsidized by Section 8 vouchers prior to the termination of his lease; if this were the case, the Rehabilitation Act could provide the basis for a federal claim if, once again, Reid alleges that his landlord discriminated against him because of his handicap. Accordingly, the Court grants Reid leave to amend this claim to allege, if it is the case, that his housing was subject to the Rehabilitation Act, and to include good faith allegations of the requisite discriminatory motivation on the part of Zackenbaum.

  4. Section 1983 Claim

  Finally, Reid may be able to state a claim under § 1983 of the Civil Rights Act. To state such a claim, a plaintiff must establish that he was "deprived of a right secured by the Constitution or laws of the United States, and that the alleged deprivation was committed under color of state law." American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999). The requirement that the alleged act be committed "under color of state law," see American Mfrs. Mut. Ins. Co., 526 U.S. at 49-50, excludes from the reach of § 1983 "merely private conduct, no matter how discriminatory or wrongful." Blum v. Yaretsky, 457 U.S. 991, 1002 (1982); Shelley v. Kraemer, 334 U.S. 1, 13 (1948). "If a defendant's conduct satisfies the state action requirement under the Fourteenth Amendment, then that conduct also constitutes action `under color of' state law for purposes of § 1983." Tancredi v. Metropolitan Life Ins. Co., 378 F.3d 220, 229 (2d Cir. 2004). In order for Zackenbaum to be considered a state actor, Reid would have to allege in good faith that Zackenbaum was acting on behalf of a state housing agency or engaged in joint activity with a state agency at the time he terminated Reid's lease. See, e.g., West v. Atkins, 487 U.S. 42, 49-50 (1988) (noting that state employment is generally sufficient to render a defendant a state actor); Ginsberg v. Healy Car & Truck Leasing, Inc., 189 F.3d 268, 271 (2d Cir. 1999) (stating that private parties who are engaged in joint activity with the state or its agents will also be found to be acting "under color" of state law for purposes of § 1983) (quoting United States v. Price, 383 U.S. 787, 794 (1966)). Nothing in the complaint suggests that Zackenbaum is a state actor; conversely, because the complaint contains almost no information about Zackenbaum, there is nothing to suggest that he is not a state actor. Given his pro se status, Reid is granted leave to amend his complaint to allege in good faith whether Zackenbaum was a state actor, and to include sufficient facts to give notice of the basis for such allegation.


  The Court grants Reid leave to file an amended complaint in accordance with this decision within 30 days of the filing of this Memorandum and Order. If he fails to do so, or if the amended complaint does not cure the defects in the original complaint, this action will be subject to dismissal.


SO ORDERED. [Page 74, ]

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