The opinion of the court was delivered by: Kimba M. Wood, U.S.D.J.
Plaintiff Gerard O'Neill ("Plaintiff") brings this pro se action against New York City Housing Authority ("NYCHA"); Tino Hernandez ("Hernandez"), NYCHA's Chairman; Ricardo Morales ("Morales"), NYCHA's General Counsel; and several other NYCHA employees, some of whom are named in Plaintiff's Complaint and some of whom are unnamed (collectively, "NYCHA Defendants"). Plaintiff also brings this action against the New York City Legal Department ("NYCLD"); Richard Carazo, lead attorney for NYCLD; unnamed employees in New York State housing court; unnamed clerk employed at 9 Centre Street in New York; Thomas Bia, sheriff in the New York Sheriff's Office; Natalie Sobchak, supervising attorney in the Southern District of New York's Pro Se Office; and three additional staff attorneys in the Pro Se Office (collectively, in conjunction with NYCHA Defendants, "Defendants").
Plaintiff resides in an apartment in a building owned and managed by NYCHA. (Compl. ¶ 1.) Plaintiff alleges that Defendants committed a host of statutory and constitutional violations, acted fraudulently, and engaged in tortious conduct, all largely in connection with State court non-payment proceedings brought by NYCHA against Plaintiff in 2005 and 2006 (see Compl. ¶¶ 24, 26).
Defendants seek to dismiss these claims. Defendants' motion to dismiss is GRANTED in part and DENIED in part and Plaintiff is GRANTED leave to amend his Complaint for the reasons set forth in Part II.
In this order, the Court also DENIES two of Plaintiff's pending motions: (1) Plaintiff's motion for reconsideration of the Court's previous decision to deny Plaintiff leave to file a motion for the undersigned to recuse herself, or in the alternative for the Court to certify to the Second Circuit Court of Appeals the question of whether the undersigned should recuse herself from this case; and (2) Plaintiff's motion to proceed anonymously.
On or about January 28, 2008, Plaintiff commenced this action in New York State Supreme Court, New York County. On February 20, 2008, Defendants removed this action to federal court. The Court accepted the removed case as related to an earlier action before the Court.*fn1
On May 15, 2008, Defendants moved to dismiss Plaintiff's original complaint. In response, Plaintiff moved to amend the complaint to add new Defendants and to allege new violations by Defendants of federal and state law. On June 24, 2008, the Court granted Plaintiff's motion to amend the complaint and deemed Defendants' motion to dismiss withdrawn.
On July 7, 2008, Plaintiff filed his First Amended Complaint, the operative complaint ("Complaint"). On July 21, 2008, Defendants moved, pursuant to Federal Rules of Civil Procedure 12(b)(6) and 9(b), to dismiss Plaintiff's Complaint on the grounds that it fails to state a claim upon which relief can be granted and that it fails to plead the fraud claims with particularity.*fn2
The Court has granted Plaintiff three extensions of time to file an opposition to Defendants' motion to dismiss. In the first order granting an extension of time, the Court stated that the opposition to the motion to dismiss was due no later than September 19, 2008. In the second order granting an extension of time, the Court stated that Plaintiff's opposition to the motion to dismiss was due no later than November 12, 2008. In the third order granting an extension of time, the Court stated that Plaintiff's opposition to the motion to dismiss was due no later than March 6, 2009. In the third order, the Court also explained that if Plaintiff filed an opposition to the motion to dismiss after March 6, 2009, the filing would be deemed untimely and would not be considered by the Court.
The Court has not received an opposition memorandum from Plaintiff.*fn3 The Court therefore decides the motion without the benefit of briefing from Plaintiff.
B. Standard for Motion to Dismiss
In order to survive a motion to dismiss, a plaintiff must provide factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (finding Twombly's motion to dismiss standard generally applicable). In assessing whether a plaintiff has met this standard, the Court must "constru[e] the complaint liberally, accepting all factual allegations . . . as true, and drawing all reasonable inferences in the plaintiff's favor."*fn4 Goldstein v. Pataki, 516 F.3d 50, 56 (2d Cir. 2008).
"On a motion to dismiss, courts 'are not bound to accept as true a legal conclusion couched as a factual allegation.'" Sharkey v. Quarantillo, 541 F.3d 75, 83 (2d Cir. 2008) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). More than "labels and conclusions" are required, and "a formulaic recitation of the elements of a cause of action will not do." Twombly, 127 S.Ct. at 1965. Accordingly, "bald assertions and conclusions of law will not suffice" to survive a motion to dismiss. Reddington v. Staten Island Univ. Hosp., 511 F.3d 126, 132 (2d Cir. 2007).
Plaintiff alleges that NYCHA Defendants violated his rights under the Brooke Amendment to the United States Housing Act. Plaintiff also alleges that NYCHA Defendants discriminated against him based on his disability in violation of (1) the Americans with Disabilities Act, Title II ("Title II of the ADA"); (2) the Rehabilitation Act of 1973, Section 504 ("Section 504 of the Rehabilitation Act"); and (3) the Fair Housing Act ("FHA").
Plaintiff's primary contention is that Defendants improperly calculated his rent. He alleges that Defendants "recast" non-rent housing charges as rent. (Compl. ¶ 31.) Consequently, according to Plaintiff, he was charged rent in excess of the Brooke Amendment's prescribed rent ceiling for low-income persons living in public housing projects. (Compl. ¶¶ 31-32.)
Plaintiff further asserts that his concerns about the rent calculations were not adequately addressed because he is disabled; he asserts that rather than substantively addressing his concerns about rent calculations, NYCHA Defendants arranged for social workers to harass and coerce Plaintiff into paying illegal charges. Plaintiff contends that the social workers would not have tried to coerce him into paying his rent had he not been disabled, and instead they would have addressed his complaint on the merits.
Plaintiff alleges that NYCHA Defendants failed to comply with the Brooke Amendment because they "recast" non-rent charges as rent. The Court finds that Plaintiff has adequately pled this claim, and therefore DENIES Defendants' motion to dismiss this claim.
The Brooke Amendment, an amendment to the United States Housing Act of 1937, provides a ceiling on the rent that can be charged to residents living in certain public housing projects.
42 U.S.C. § 1437(a). Under this Amendment, rent in the public housing projects is limited to the higher of (1) 30% of the family's monthly adjusted income or (2) 10% of the family's monthly income.*fn5
In addition to rent, a municipality may be allowed "to add certain fees to cover excess utility use, late payments and maintenance charges." Binghamton Hous. Auth. v. Douglas, 217 A.D.2d 897, 898 (N.Y. App. Div. 1995); see also Beckham v. N.Y. city Hous. Auth., 755 F.2d 1074, 1078 n.2, 1080 (2d. Cir. 1985); Watertown Hous. Auth. v. Kirkland, 2 Misc. 3d 280, 281 (N.Y. City Ct. 2003). These fees are not rent within the meaning of the Brooke Amendment. 24 C.F.R. 966.4. To collect these fees, the municipality must institute proceedings that are separate and distinct from proceedings in which it seeks unpaid rent. Binghamton Hous. Auth., 217 A.D.2d at 898-99.
The Court has jurisdiction, pursuant to 42 U.S.C. § 1983 ("Section 1983"), to hear Plaintiff's claim that NYCHA Defendants calculated his rent in a manner that was in violation of the Brooke Amendment. Wright v. Roanoke Redevelopment & Housing Authority, 479 U.S. 418 (1987)(expressly finding Brooke Amendment violations actionable under Section 1983). As with any other Section 1983 claim, a party seeking to establish a violation of the Brooke Amendment must show (1) defendants acted under color of state law, and (2) defendants' actions deprived plaintiff of her constitutional rights or privileges. Williams v. New York City Hous. Auth. & Local 237, I.B.T., 2007 U.S. Dist. LEXIS 91134, at *13 (S.D.N.Y. 2007).
Municipalities are liable under Section 1983 "when the alleged unlawful action implemented or was executed pursuant to a governmental policy or custom." Reynolds v. Giuliani, 506 F.3d 183, 190 (2d Cir. 2007). A municipality's alleged failure to train or supervise municipal employees can violate Section 1983 when the failure is a result of deliberate indifference to resident rights. City of Canton v. Harris, 489 U.S. 378, 392 (1989). Because "[a]n official capacity suit against a public servant is treated as one against the governmental entity itself[,] . . . a state official may be sued in his or her official capacity for injunctive or other prospective relief  when the state itself is the moving force behind the deprivation." Id. at 191.
Plaintiff alleges that Ricardo Morales and Richard Carazo, in their official capacities as NYCHA's General Counsel and NYCLD's lead counsel, respectively, are liable under Section 1983 for their failure to train and supervise NYCHA employees to recognize and prevent violations of the Brooke Amendment. (Compl. ¶ 51.) Plaintiff also alleges that NYCHA Defendants violated the Brooke Amendment when they "recast" non-rent charges as rent and therefore, charged him in excess of 30% of his adjusted income.*fn6 (Compl. ¶ 32.)
Defendants move, pursuant to Federal Rule 12(b)(6), to dismiss Plaintiff's Section 1983 claim. Defendants do not contest that Morales and Carazo were acting under color of state law. Defendants' only basis for arguing the claim should be dismissed is that it is "devoid of any allegation that he is being charged rent in excess of the amount permitted by [the Brooke Amendment]."
The Court, construing Plaintiff's claims liberally, finds that Plaintiff does allege that he was charged rent in excess of what is permitted under the Brooke Amendment. Specifically, Plaintiff states that NYCHA Defendants' deemed Plaintiff's rent payments to be insufficient to cover Plaintiff's rent because NYCHA Defendants deducted non-rent charges from the rent payment.*fn7 As a result, Plaintiff claims he was effectively required to pay more than 30% of his income if he wanted to avoid the threat of eviction proceedings. Plaintiff argues that this threat of eviction for failure to pay this additional rent, constituted a deprivation of rights, privileges, and immunities secured by the Constitution and thus is actionable under Section 1983. (Compl. ¶¶ 31 -33.)
Plaintiff has also pled that the municipality's failure to train and supervise its employees to adequately address Brooke Amendment violations constitutes a deprivation of his rights that is actionable under Section 1983. He alleges that because of this improper training or supervision, NYCHA did not respond to his requests for audits. Therefore, his attempts to correct NYCHA Defendants' mistaken charges were unsuccessful. (Compl. ¶ 39.) Moreover, according to Plaintiff, the NYCHA had no fraud protection safeguards of its own. (Compl. ¶ 40.)
For the reasons set forth above, the Court concludes that Plaintiff adequately plead a violation of the Brooke Amendment, which is actionable under Section 1983. Accordingly, Defendants' motion to dismiss the Brooke Amendment claim is DENIED.
2. Title II of the ADA and Section 504 of the Rehabilitation Act
Under the ADA, a disability is defined as either: (1) a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual; (2) a record of such an impairment;*fn8 or (3) being regarded as having such an impairment. Colwell v. Suffolk County Police Dep't, 158 F.3d 635, 641 (2d Cir. 1998).
To state a claim under Title II of the ADA, a plaintiff must allege that: (1) he is a "qualified individual" with a disability;*fn9 (2) the defendants are subject to the ADA; and (3) the plaintiff was denied the opportunity to participate in or benefit from defendants' services, programs, or activities, or were otherwise discriminated against by defendants, by reason of plaintiff's disability. Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003). The same elements must be alleged to establish a violation under Section 504 of the Rehabilitation Act, and, in addition, the plaintiff must allege that the defendants receive federal funding. Id.
A plaintiff has to adequately allege all the elements of these claims in order to survive a motion to dismiss; a finding that a plaintiff has failed to plead with sufficient specificity any one of the ...