MEMORANDUM-DECISION AND ORDER
On February 25, 2005, Plaintiff Robert Davis ("Plaintiff") filed the instant Complaint pursuant to 42 U.S.C. § 1983 ("§ 1983"), wherein he alleges that Defendants Andrew M. Cuomo, Attorney General for the State of New York ("Cuomo"), Albany Rescue Mission ("ARM"), and Albany Housing Authority ("Housing Authority") violated his First and Fourteenth Amendment rights by denying him housing and excluding him from ARM's homeless shelter because of his religion. Dkt. No. 1. On May 6, 2010, Defendant Housing Authority filed an Answer generally denying Plaintiff's allegations against it, announcing thirty-one affirmative defenses, and asserting a Cross-claim against Defendants Coumo and ARM. Dkt. No. 6. Presently before the Court are separate Motions to dismiss the Complaint and Cross-claim filed by Albany Rescue Mission (Dkt. No. 8), and Defendant Cuomo (Dkt. No. 11). For the reasons that follow, both Motions are granted.
Plaintiff initiated this civil action pursuant to 42 U.S.C. § 1983, premised on this Court's jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343(3) and (4), and 2201. Compl. ¶ 1. He provides the following facts in support of his action. On July 1, 2009, Plaintiff applied to the Housing Authority for emergency housing as a disabled homeless person; he was told by Housing Authority personnel that because he practiced the Islamic faith, he would not receive assistance. Id. ¶ 4. Subsequently, on February 21, 2010, Plaintiff was "thrown out of the Albany Rescue Mission . . . by staff members . . . because [he] would not attend the facilities Church Services. When [he] explained that [he is] a Muslim, who practices the Islamic Faith, [he] was still thrown out." Id. Plaintiff's Complaint does not state any factual allegations with regard to Defendant Cuomo or the Office of the Attorney General of the State of New York.
Plaintiff's Complaint announces two causes of action against Defendants. First, he asserts that in applying for housing at the Housing Authority he was discriminated against because of his religion, causing him to remain homeless. Id. ¶ 5. His second cause of action asserts that the Defendant ARM expelled him from its shelter because he would not attend church services. Plaintiff thus alleges violations of his First and Fourteenth Amendment rights. He seeks compensatory and punitive damages. Id. ¶ 7.
In its Answer, Defendant Housing Authority denies any wrongdoing, but asserts that "if plaintiff recovers a judgment in this action against [it,] then liability will have been brought about, or caused by, in whole or part, by reason of the actions, carelessness, negligence, intentional torts and/or other culpable conduct of defendants, Andrew Cuomo and/or Albany Rescue Mission without any such actions, carelessness or negligence on the part of the Albany Housing Authority." Answer (Dkt. No. 6) ¶ 38. The Housing Authority thus asserts that it is entitled to full or partial indemnification and/or contribution by the other Defendants. Id. ¶ 39.
Pursuant to Federal Rule of Civil Procedure 12(b)(1), a party may assert as a defense a court's lack of subject matter jurisdiction over the action. FED. R. CIV. P. 12(b)(1). In the face of such a jurisdictional challenge, a plaintiff "bears the burden of showing by a preponderance of the evidence that subject matter jurisdiction exists." APWU v. Potter, 343 F.3d 619, 623 (2d Cir. 2003) (internal quotation marks omitted). "Accordingly, jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it." Arar v. Ashcroft, 532 F.3d 157, 168 (2d Cir. 2008) (citations, quotations, and alterations omitted)."In resolving a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b) (1), a district court [ ] may refer to evidence outside the pleadings." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000) (citing Kamen v. American Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986)). Thus, a district court may refer to evidence such as sworn affidavits in assessing a 12(b)(1) motion. Id.
In reviewing a motion seeking dismissal pursuant to Rule 12(b)(6), the Court must "accept all [factual] allegations in the complaint as true and draw all inferences in the light most favorable to" the non-moving party. In re NYSE Specialists Sec. Litig., 503 F.3d 89, 95 (2d Cir. 2007). The "tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Ashcroft v. Iqbal, __ U.S.__, 129 S.Ct. 1937, 1949 (2009). Allegations which merely announce "legal conclusions" or "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements" "are not entitled to the assumption of truth" and are insufficient to defeat a motion to dismiss. Id. at 1949-50. Accordingly, the Court must "begin by identifying pleadings that . . . are no more than conclusions" and exclude these from consideration. Id. at 1950. As to any remaining well-pleaded factual allegations, the Court will "assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id.
To survive a motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, __ U.S.__, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
This plausibility standard "is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. Facial plausibility exists "when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. The determination of whether a complaint states a plausible claim is "context specific" and "requires the reviewing court to draw on its judicial experience and common sense." Id.
A court is to afford pro se litigants special solicitude and is duty-bound to read the such litigants' pleadings broadly. See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006); Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990). Pro se pleadings "must be read liberally and should be interpreted to raise the strongest arguments that they suggest." Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)); Hemphill v. New York, 380 F.3d 680, 687 (2d Cir. 2004) (stating that "[i]t is well-established that when a plaintiff proceeds pro se . . . a court is obliged to construe his pleadings liberally, particularly when they allege civil rights violations") (citations and quotations omitted). A pro se litigant's complaint is subject to "less stringent standards than formal pleadings drafted by lawyers." Hughes v. Rowe, 449 U.S. 5, 9 (1980) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)). Nevertheless, a litigant's "pro se status does not exempt a party from compliance with relevant rules of procedural and substantive law." Id. (citation omitted).
Plaintiff brings his action pursuant to 42 U.S.C. § 1983, which provides in part: Every person who, under color of any statute . . . of any State . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities ...