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O'Neill v. Hernandez

March 31, 2010

GERARD O'NEILL, PLAINTIFF,
v.
TITO HERNANDEZ, RICARDO MORALES, NEW YORK CITY HOUSING AUTHORITY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Kimba M. Wood, U.S.D.J.

OPINION AND ORDER ON MOTION FOR SUMMARY JUDGMENT

I. Introduction

Plaintiff brings this action against the New York City Housing Authority (NYCHA), Tino Hernandez (former Chairman of NYCHA), Ricardo Morales (former NYCHA General Counsel), and a number of named and unnamed employees of the following agencies: NYCHA, the New York City Law Department (NYCLD), the New York City Comptroller Office, the New York City Human Resources Administration, and the pro se office of the United States District Court for the Southern District of New York. Plaintiff sets forth a number of allegations related to (1) several non-payment proceedings that NYCHA initiated against Plaintiff in New York State court in 2005 and 2006; (2) actions taken by NYCHA social workers; and (3) conduct by various state actors.

Plaintiff's Second Amended Complaint seeks damages under the following federal statutes and Constitutional provisions: (1) the Brooke Amendment of the United States Housing Act, 42 U.S.C. § 1437(a)(1)(A); (2) Title VI of the Civil Rights Act of 1964; (3) the Americans with Disabilities Act; (4) Section 504 of the Rehabilitation Act of 1973; (5) the Fair Housing Act; (6) 42 U.S.C. §§ 1985 and 1986; (7) the Racketeering Influenced and Corrupt Organizations Act (RICO); and (8) Fourth, Fifth, Eighth, and Fourteenth Amendment rights under the United States Constitution;.*fn1

Plaintiff also asserts a number of state common law causes of action, including: (1) fraud and misrepresentation; (2) malicious prosecution; (3) abuse of process; (4) intentional and negligent infliction of emotional distress; (5) invasion of privacy; and (6) intentional prima facie tort.

Defendants now move to dismiss Plaintiffs' Second Amended Complaint or, in the alternative, for summary judgment on all claims. The Court treats Defendants' motion as one for summary judgment. Plaintiff has cross-moved for summary judgment on his fraud claim. As set forth below, the Court finds that Plaintiff's claims are without merit. Accordingly, the Court GRANTS Defendants' motion for summary judgment with respect to all claims. The Court DENIES Plaintiff's cross-motion for summary judgment.

II. Procedural History

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 the action to this Court. The Court accepted the removed case as related to a previous action before the Court, O'Neill v. New York City Hous. Auth., et al., No. 06 Civ. 14377. In 2007, the Court dismissed the previous related action (1) for lack of subject matter jurisdiction, and (2) because Plaintiff failed to state a claim upon which relief could be granted. (Order, Aug. 20, 2007, DE 7.)

On May 15, 2008, Defendants moved to dismiss Plaintiff's complaint in the instant action. In response, Plaintiff moved to amend the complaint, to add new Defendants, and to assert new federal and state law claims against Defendants. 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. On July 21, 2008, Defendants moved, pursuant to Federal Rules of Civil Procedure 12(b)(6) and 9(b), to dismiss the First Amended Complaint on the grounds that it (1) failed to state a claim upon which relief can be granted, and (2) failed to plead the fraud claims with sufficient particularity.

The Court granted Plaintiff three extensions of time, amounting to more than six months, to file an opposition to Defendants' motion to dismiss the First Amended Complaint. The Court did not receive an opposition memorandum from Plaintiff. The Court decided Defendants' motion without the benefit of briefing from Plaintiff.*fn2

On March 31, 2009, the Court issued an Opinion and Order, granting in part and denying in part Defendants' motion to dismiss the First Amended Complaint. All claims were dismissed with the exception of claims asserting that the NYCHA Defendants (1) violated the Brooke Amendment of the United States Housing Act, and (2) denied Plaintiff his Fourteenth Amendment right to equal protection. The Court granted Plaintiff leave to amend the First Amended Complaint, with some limitations, and ordered that an amended pleading be filed by May 15, 2009. On May 18, 2009, Plaintiff filed his "Reply to the Opinion and Order of Judge Kimba Wood Dated March 31, 2009." This submission pled all claims included in the First Amended Complaint, and added new defendants, some named and some unnamed, and new causes of action. Defendants properly construed Plaintiff's submission as a Second Amended Complaint.

On August 10, 2009, Defendants moved to dismiss Plaintiff's Second Amended Complaint or, in the alternative, for summary judgment as to all claims. Defendants provided proper notice to Plaintiff that the Court could treat the motion to dismiss as a motion for summary judgment because it is supported in part by materials outside of the pleadings.

Plaintiff responded to Defendant's motion with an extensive submission, including several exhibits, on December 18, 2009. Plaintiff has cross-moved for summary judgment with respect to his claim of fraud under New York State common law.

Both parties have received multiple extensions on briefing deadlines. (DE 46, 47, 52, 53, 54, 56, 57.) The parties' motions were fully briefed on January 29, 2010. Plaintiff sought to make additional submission, including a lengthy brief entitled "Supplemental Information FRCP 15." The Court accepted Plaintiff's supplemental submissions.

III. Factual Background

Since November 1996, Plaintiff has been a resident at Douglass Houses, a NYCHA housing development in Manhattan. (Def. Ex. A.) In August 2004, Plaintiff's monthly rent was set at $191.00. The rent was one-twelfth of 30% of his adjusted net income, amounting to $7652.00, which he received through Social Security and Supplemental Security Income benefits.

In August 2005, Plaintiff failed to submit his income review documentation. NYCHA residents are required to submit income review documentation on an annual basis so that rental fees may be recalculated and updated as appropriate. NYCHA thus increased Plaintiff's monthly rent to $668.00, as permitted by law and NYCHA policy. When Plaintiff submitted the required documentation in October 2005, Plaintiff's rent was promptly adjusted to $196.00 per month, or one-twelfth of 30% of his adjusted net income of $7832.00. (Def. Ex. B.) His account was duly credited to reflect the appropriate monthly rent. Plaintiff did not submit income review documentation for 2006 or 2007. (Def. Ex. D.) Nevertheless, his rent remained at $196.00 per month.

For several months since 2005, Plaintiff failed to timely pay his rent. In response, NYCHA commenced rent non-payment proceedings against Plaintiff in the Housing Part of the Civil Court of the City of New York in October 2005 and again in November 2006. These proceedings ended with Plaintiff's payment of the rent amounts owed. (Def. Exs. E & F.)

On September 20, 2007, a NYCHA Social Services Department staff member visited Plaintiff's apartment based upon a "Referral for NYCHA Social Services" submitted by the Douglass Houses Management Office. The referral provided that Plaintiff was four months behind on rent payments. NYCHA social workers and an Adult Protective Services case worker made a number of attempted home visits and phone calls to Plaintiff, with limited success. On December 6, 2007, NYCHA Social Services closed the case and ceased contact with Plaintiff. The Case Closing Summary stated:

On September 20, 2007, a Social Services Worker [SSW] attempted a home visit, [but] there was no answer. SSW left a contact letter. On 9-20-07 SSW received a telephone call from Mr. O'Neill and he stated that he wanted no further contact with anyone from New York City Housing Authority. He felt he was being harassed; SSW continued to monitor [Plaintiff] with Management. SSW last contact with Management, at the end of November 2007, revealed that [Plaintiff] had paid $980.00 in rent arrears which makes him current at this time. Due to the arrears rent being paid and [Plaintiff's] refusal of Social Services, no further outreach is needed at this time; therefore, the case is being closed. (Def. Ex. H.)

During this same period of time, starting in March 2006, NYCHA initiated and pursued administrative proceedings against Plaintiff for chronic rent delinquency. Following several adjournments and a hearing at which Plaintiff did not appear, a hearing officer issued a decision supporting termination of Plaintiff's tenancy. The NYCHA Board approved the hearing officer's decision on June 18, 2008. (Def. Ex. L.) NYCHA then commenced a holdover proceeding in the Housing Part of the Civil Court of the City of New York, seeking to evict Plaintiff from his NYCHA apartment. The Civil Court granted a warrant of eviction but stayed the warrant until July 31, 2009. Plaintiff has subsequently been evicted from his NYCHA apartment. (Pl. Letter, Jan. 26, 2010.)

In his Second Amended Complaint, Plaintiff brings numerous claims against Defendants related to the above events, alleging violations of: (1) the Brooke Amendment of the United States Housing Act; (2) Title VI of the Civil Rights Act of 1964; (3) Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973; (4) the Fair Housing Act; (5) the Fourteenth Amendment of the United States Constitution; (6) Sections 1985 and 1986 of Title 42 of the United States Code; (7) the Racketeering Influenced and Corrupt Organizations Act; and (8) the Fourth, Fifth, and Eighth Amendments of the United States Constitution. Plaintiff also brings state law claims that include: (1) malicious prosecution; (2) abuse of process, (3) intentional and negligent infliction of emotional distress; (4) invasion of privacy; (5) fraud and misrepresentation; and (6) intentional prima facie tort.

For the reasons stated below, the Court grants Defendants' motion for summary judgment as to all Plaintiff's claims.

IV. Standard of Review on Motions before the Court

A. Parties' Motions Treated as Motions for Summary Judgment

If "matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56." Fed. R. Civ. P. 12(d).

Federal courts have discretion to determine whether or not to accept the submission of any material beyond the pleadings offered in conjunction with a motion to dismiss. A court has "complete discretion in determining whether to convert the motion to one for summary judgment." Carione v. United States, 368 F. Supp. 2d 186, 191 (E.D.N.Y. 2005) (internal quotation marks and citations omitted); see also Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir. 2006) ("A court may indeed convert a motion for judgment on the pleadings into a motion for summary judgment"). The parties must have notice that a motion will be treated as a motion for summary judgment. See Kopec v. Coughlin, 922 F.2d 152, 154 (citing Fonte v. Bd. of Mgrs. of Cont. Towers Condominium, 848 F.2d 24, 25 (2d Cir. 1988)).

The Court treats the pending motions as motions for summary judgment. Defendants have submitted a motion to dismiss, or in the alternative, for summary judgment. Defendants timely provided a "Notice to Pro Se Litigant Who Opposes a Rule 12 Motion Supported by Matters Outside the Pleadings" that notifies Plaintiff that the motion may be treated as one for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff has demonstrated that he understands this fact. He has submitted to the Court a cross-motion for summary judgment, as well as supporting exhibits totaling some fifty pages. See Gurary v. Winehouse, 190 F.3d 37, 43 (2d Cir. 1999) (noting that where a non-moving party submits exhibits and affidavits in its response papers, it cannot claim to be surprised by a court's treating the motion as one for summary judgment). The Court has considered both parties' materials outside of the pleadings and thus rules on the pending motions as ones for summary judgment.

B. Standard of Review on Motion for Summary Judgment

Summary judgment is appropriate only if the record before the court establishes that there is no "genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A motion for summary judgment should be denied "if the evidence is such that a reasonable jury could return a verdict" in favor of the non-moving party. NetJets Aviation, Inc. v. LHC Commc'ns, LLC, 537 F.3d 168, 178-79 (2d Cir. 2008); see also Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001); Fed. R. Civ. P. 56(e). The Court must construe the evidence in the light most favorable to the non-moving party and must draw all reasonable inferences in the non-moving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); In re "Agent Orange" Prod. Liab. Litig., 517 F.3d 76, 87 (2d Cir. 2008).

"It is well established that the submissions of a pro se litigant must be construed liberally and interpreted to raise the strongest arguments that they suggest." Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks omitted); see also Hughes v. Rowe, 449 U.S. 5, 10 (1980) (noting that a pro se party's pleadings must be liberally construed in its favor and are held to a less stringent standard than the pleadings drafted by lawyers). At the same time, "conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to defeat a motion to dismiss." Achtman v. Kirby, McInerney & Squire, LLP, 464 F.3d 328, 337 (2d Cir. 2006) (citation omitted). A plaintiff who proceeds pro se must comply with the procedural and substantive rules and, to survive a motion to dismiss or for summary judgment, a pro se complaint, like any other complaint, "must plead 'enough facts to state a claim to relief that is plausible on its face.'" Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-50 (2009).

IV. Analysis of Federal Law Claims

A. Brooke Amendment of the United States Housing Act

1. Legal Standard

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. See 42 U.S.C. § 1437(a). Monthly rent payments in the public housing projects are limited by federal law to (1) 30% of monthly adjusted income, or (2) 10% of monthly income, whichever is higher.*fn3 See 42 U.S.C. § 1437a(a)(1).

In addition to rent, a municipality is permitted "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 (3rd Dep't 1995); see also Beckham v. New York 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. See 24 C.F.R. § 966.4(b). To collect these fees from a tenant, the municipality must institute proceedings that are distinct from proceedings in which it seeks unpaid rent. Binghamton Hous. Auth., 217 A.D. 2d at 898-99.

Allegations of Brooke Amendment violations may be brought pursuant to 42 U.S.C. § 1983 ("Section 1983"). See Wright v. Roanoke Redevelopment & Hous. Auth., 479 U.S. 418, 423-24 (1987). A plaintiff seeking relief under Section 1983 must demonstrate that (1) defendants acted under color of state law, and (2) defendants' actions deprived plaintiff of a constitutional right or privilege. See Williams v. New York City Hous. Auth. & Local 237, I.B.T., No. 05-2750, 2007 WL 4215876, at *4-5 (S.D.N.Y. Nov. 30, 2007).

To establish municipal liability under Section 1983, a plaintiff must show that the alleged unlawful action was implemented or executed pursuant to a governmental policy or custom. See Monell v. Dep't of Soc. Servs. of the City of New York, 436 U.S. 658, 690-91 (1978). 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 a plaintiff's Constitutional rights. See City of Canton v. Harris, 489 U.S. 378, 392 (1989). A plaintiff may bring a Section 1983 claim against ...


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