United States District Court, E.D. New York
August 17, 2005.
ENRIQUE REID, Plaintiff,
JEFFREY ZACKENBAUM, Defendant.
The opinion of the court was delivered by: FREDERIC BLOCK, District Judge
MEMORANDUM AND ORDER
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
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
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.
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