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Daniel Marcel v. Shaun Donovan

March 14, 2012


The opinion of the court was delivered by: Roslynn R. Mauskopf, United States District Judge.


Plaintiff pro se Daniel Marcel brings this action against defendants Shaun Donovan, Secretary of the United States Department of Housing and Urban Development ("Donovan") and John Rhea, Chairman of the New York City Housing Authority ("Rhea") under Section 3 of the Housing and Urban Development ("HUD") Act of 1968, 12 U.S.C. § 1701u, for, inter alia, damages related to his inability to obtain employment on a public housing construction project. On March 30, 2011, the Court denied plaintiff's request for a temporary restraining order.

Presently before the Court are plaintiff's application requesting appointment of counsel, plaintiff's motion for a preliminary injunction and defendants' cross-motions to dismiss pursuant to Rule 12(b).

For the reasons set forth below, the Court DENIES plaintiff's motion for injunctive relief and request for appointment of counsel (Doc. Nos. 3, 8) and GRANTS defendants' cross-motions to dismiss the complaint under Rule 12(b) (Doc. Nos. 12 - 15.) *fn1


Plaintiff claims that in August 2009, he became interested in obtaining work through the New York City Housing Authority ("NYCHA") resident employment service.*fn3 (Compl. (Doc. No. 1) at 10.) Plaintiff alleges that he successfully enrolled in the program and was assigned a caseworker, Michael Ducket, who was a NYCHA employee. (Id.) Plaintiff subsequently attended a job interview with AAH Construction Corp. ("AAH"), which had a NYCHA contract to perform construction on the Whitman and Ingersoll Houses.*fn4 (Id.) Plaintiff alleges that during the interview, at which Ducket was present, plaintiff was offered a job working for AAH Construction. (Id.)

Plaintiff alleges that he began working for AAH, but was terminated after about 3 months because he was not a resident of public housing. (Id.) Plaintiff claims that he then sought to obtain residence at a NYCHA property, but was unable to do so. (Id.) Nevertheless, AAH re-hired plaintiff after another NYCHA employee, Sonya Tarelli, intervened and assured AAH that plaintiff fell within Section 3 despite not residing at a NYCHA property. (Id.) Plaintiff worked for AAH until the end of its contract in July 2010. (Id.)

In March 2011, AAH began work on another NYCHA project. (Id.) On March 17, 2011, plaintiff approached the CEO/owner of AAH and asked to be hired again. (Id.) The CEO/owner told plaintiff that "he would love to have [plaintiff] back" to work on the project, provided plaintiff could furnish AAH with a letter from NYCHA confirming that plaintiff fell within one of the Section 3 categories. (Id. at 10-11.) However, a NYCHA employee, "Ms. Hewitt," allegedly refused to provide plaintiff with such a letter. (Id. at 11.) Ms. Hewitt allegedly informed plaintiff that she would not provide him with the letter because it was NYCHA's policy to give preference to individuals who fell within the first two categories of Section 3, i.e. residents of NYCHA properties. (Id.)

On March 30, 2011, plaintiff filed the instant action, alleging a cause of action under Section 3 of the HUD Act of 1968. Plaintiff seeks: (1) reinstatement of his employment with AAH; (2) injunctive relief against Rhea and Donovan; and (3) damages for lost wages. Also on March 30, 2011, plaintiff sought temporary and preliminary injunctive relief, enjoining defendants from, inter alia, interfering with plaintiff's employment with AAH. (Doc. No. 5.) The Court denied plaintiff's request for a temporary restraining order, (Doc. No. 6), and directed defendants by Order to Show Cause to respond to plaintiff's request for preliminary relief (Doc. No. 5). On April 15, 2011, Rhea responded, (Doc. No. 12), and filed a cross-motion to dismiss plaintiff's complaint under Rule 12(b). (Doc. Nos. 12, 14-15.) As previously noted, defendant Donovan sought leave to move on the same grounds (Doc. No. 13). On May 3, 2011, plaintiff filed an opposition to Rhea's cross-motion to dismiss. (Doc. No. 16.) Finally, on May 12, 2011, Rhea filed a reply in support of his cross-motion to dismiss. (Doc. No. 17.)


A motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) requires the court to examine the legal, rather than factual, sufficiency of a complaint. As required by Rule 8(a)(2), a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." To withstand 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, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007).

A court considering a 12(b)(6) motion must "take[ ] factual allegations [in the complaint] to be true and draw[ ] all reasonable inferences in the plaintiff's favor." Harris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009) (citation omitted). A complaint need not contain "detailed factual allegations, but it must contain more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 555) (internal quotation marks omitted). In other words, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Twombly, 550 U.S. at 555). Rather, the plaintiff's complaint must include "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 570). The determination of whether "a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950 (citing Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007)).

While pro se plaintiffs must satisfy these pleading requirements, federal courts are "obligated to construe a pro se complaint liberally." See Harris, 572 F.3d at 71-72 (citations omitted). In other words, trial courts hold pro se complaints to a less exacting standard than they apply to complaints drafted by attorneys. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Boykin v. KeyCorp, 521 F.3d 202, 213-14 (2d Cir. 2008). Since pro se litigants "are entitled to a liberal construction of their pleadings, [their complaints] should be read to raise the strongest arguments that they suggest." Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001) (citation and internal quotation marks omitted). When a pro se plaintiff has altogether failed to satisfy a pleading requirement, however, the court should not hesitate to dismiss his claim. See Rodriguez v. Weprin, 116 F.3d 62, 65 (2d Cir. 1997) (citation omitted); see also Johnson v. City of ...

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