The opinion of the court was delivered by: Garaufis, United States District Judge.
Plaintiff Donald Williams ("Plaintiff" or "Williams") has brought suit against the United States Department of Housing and Urban Development ("HUD"), New York City Housing Authority ("NYCHA") and Selectric Electric Contracting Co., Inc. ("Selectric"), alleging that Selectric fraudulently and illegally rescinded an offer of employment, and HUD erred in dismissing Plaintiff's administrative complaint, in violation of Section 3 of the HUD Act of 1968, 12 U.S.C. § 1701u.
Defendants NYCHA and Selectric move to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim. For the reasons set forth below, Defendants' motions are GRANTED, and Plaintiff's complaint is dismissed.
Plaintiff has been a resident of the Arverne Public Housing Project in New York City since August 15, 2001. (Compl. ¶¶ 2, 8.) In 2001, Selectric received a contract from NYCHA to perform work in the Edgemere/Arverne Public Housing Project. (Id. ¶ 7.) In August, September, and October 2001, Williams applied for employment as a laborer with Selectric. (Id. ¶ 8.) However, Selectric never hired plaintiff, despite "promising Plaintiff that he would be hired under Section 3 and put into an apprenticeship." (Id. ¶ 9.) Further, Selectric hired two laborers who were not residents of the Arverne/Edgemere houses on October 24, 2001. (Id. ¶ 10.) On September 28, 2001, and again on November 7, 2001, Williams filed an administrative complaint against NYCHA with the U.S. Department of HUD, maintaining that Selectric denied him employment and hired non-residents in violation of the Section 3 program. On September 9, 2003, HUD found that Selectric had already reached the required number of Section 3 hires at the time that Williams became eligible for employment, which HUD determined was October 4, 2001. (Id. ¶ 12.) Williams appealed this decision, informing HUD that he became eligible for employment in August 2001, but HUD rejected Williams' complaint, finding that there "were no new hires of Section 3 residents after October 2001 when . . . Mr. Williams was eligible for Section 3 certification." (Id. ¶ 14.) Williams maintains that HUD erred in denying his administrative complaint, and seeks $500,000 in damages, interest, and costs for violating 12 U.S.C. § 1701u. (Compl. ¶ 15.)
By stipulation, HUD was dismissed as a defendant in this action. (Stipulation and Order, dated Apr. 19, 2005.) Accordingly, this action proceeds only against NYCHA and Selectric (collectively, "Defendants").
Defendants now move to dismiss the complaint for failure to state a claim. Defendant NYCHA argues that Plaintiff's suit fails because the HUD Act provides no private right of action for project residents to enforce Section 3 requirements. (Def. NYCHA Mem. Supp. Mot. Dismiss 3-11; Def. NYCHA Reply Mem. Supp. Mot. Dismiss 5-9.) Defendant Selectric urges dismissal on the basis that Plaintiff has no private right of action, and on the ground that Selectric was not a state actor in its performance of its contract with NYCHA, which is required to maintain a suit under Section 1983. (Def. Selectric Mem. Supp. Mot. Dismiss 4-7; Def. Selectric Reply Mem. Supp. Mot. Dismiss 3-6.) Plaintiff opposes Defendants' motions, arguing that Section 3 does provide him with a right of action, and Selectric is a state actor. (Pl's Mem. Opp. Mot. Dismiss 2-6.) Defendant Selectric further seeks attorneys fees from Plaintiff pursuant to 42 U.S.C. § 1988(b) for bringing suit against Selectric. (Def. Mem. Supp. Mot. Dismiss 8; Def. Reply Mem. Supp. Mot. Dismiss 7.)
In reviewing a motion to dismiss for failure to state a claim brought pursuant to Fed R. Civ. P. 12(b)(6), the court must accept all factual allegations in the complaint as true and draw all reasonable inferences from those allegations in the light most favorable to the plaintiff. See Albright v. Oliver, 510 U.S. 266, 268 (1994); Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir. 1999). The complaint may be dismissed only if "it appears beyond doubt, even when the complaint is liberally construed, that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Hoover v. Ronwin, 466 U.S. 558, 587 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). In deciding such a motion, the "issue is not whether a plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims." Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir. 1996) (internal quotations omitted).
B. Motion to Amend Complaint to Assert a Cause of Action Under Section 1983
Plaintiff requests that this complaint be deemed as asserting a cause of action under 42 U.S.C. § 1983. (Pl. Mem. Opp. Mot. Dismiss at 6.) As Defendants' motions imply consent to Plaintiff's application, this court deems Plaintiff's suit to allege that Defendants violated the HUD Act, 12 U.S.C. § 1701u, which is enforceable pursuant to Section 1983.
C. Related Cases Brought by Plaintiff Donald Williams
This court has previously ruled in two related cases involving this plaintiff and defendant NYCHA, Williams v. NYCHA and Fervent ("Fervent"), No. 05-CV-539, slip op. (E.D.N.Y. Mar. 3, 2006), and Williams v. NYCHA and Zaffuto ("Zaffuto"), No. 05-CV-428, slip op. (E.D.N.Y. Aug. 28, 2006), granting motions to dismiss by NYCHA in each case that are identical to the instant motion by Defendants. In Fervent and Zaffuto, I found that, even assuming that residents of public housing projects have a private right of action under Section 3 of the HUD Act, the actions had to be dismissed because Plaintiff was "barred by the applicable statute of limitations from maintaining th[ese] lawsuit[s]." Fervent, No. 05-CV-539, slip op., at 5 (E.D.N.Y. Mar. 3, 2006); Zaffuto, No. 05-CV-428, slip op., at 4 (E.D.N.Y. Aug. 28, 2006). In the instant motion, however, it is undisputed that the instant suit is not time-barred. I shall thus proceed to the Defendants' primary ground for dismissal, that 12 U.S.C. § 1701u does not provide Plaintiff with a private right enforceable under § 1983.
D. Private Right of Action
I first address Defendants' contention that the Supreme Court's decision in Gonzaga University v. Doe, 536 U.S. 273 (2002) controls the issue facing this court, i.e. whether 12 U.S.C. § 1701u confers an individual right enforceable through 42 U.S.C. § 1983. Section 1983 states that:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party ...