The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge:
Pro se plaintiff John R. Ernst ("Ernst") is a U.S. Marine Corps Veteran amputee who is confined to a wheelchair; he claims that various areas of his apartment and the apartment complex are inaccessible to him because of his disability. Ernst seeks relief against defendants Gateway Plaza Management Corp. and Marina Towers Associated, L.P. ("Defendants"), the owners and managers of his apartment complex, for violations of: Section 504 of the Rehabilitation Act, 42 U.S.C. §§ 1983 and 1985; the Fifth and Fourteenth Amendments of the United States Constitution; Title VI of the Civil Rights Act of 1964; Title VIII of the Civil Rights Act of 1968; and "state and/or local statutes and ordinances, public policy and other claims under the United States or New York Constitutions." (Am. Compl. 9.)
Defendants move, under Fed. R. Civ. P. 12(b)(1) and 12(b)(6), to dismiss Ernst's amended complaint for lack of subject matter jurisdiction and failure to state a claim. Defendants argue that all statutory requirements of handicap accessibility are (1) contingent upon receiving federal funds-of which they receive none-or (2) contingent on being constructed after 1991, but their buildings were constructed and occupied in 1983. Ernst claims that these arguments are more than "ultra technical," but they do set forth accurately the legal requirements which preclude Defendant's duty to comply.
On March 14, 2012, Magistrate Judge Ronald L. Ellis issued a Report and Recommendation ("R&R"), recommending that the Court grant Defendants' motion. On March 27, 2012, this Court terminated the motions to dismiss, subject to reinstatement upon the filing of any objections to the R&R. No objections have since been filed.
For the reasons that follow, the Court adopts Magistrate Judge Ellis's recommendations. Defendants' motion to dismiss is, therefore, GRANTED.
On February 14 and July 16, 2011, Ernst filed his initial and amended complaints, respectively.
Ernst has also filed: a motion for Preliminary Injunction or Temporary
Restraining Order ("TRO") on June 16, 2011; a motion for Declaratory
Judgment on November 3, 2011; and a motion to file a second amended
complaint on September 29 and again on November 3, 2011.*fn1
On August 12, 2011, Defendants moved to dismiss the amended
complaint; Defendants later opposed Ernst's request to file a second
amended complaint. On March 14, 2012, Magistrate Judge Ellis issued a
R&R recommending that the Court grant Defendants' motion.
II. Magistrate Judge Ellis's R&R
Magistrate Judge Ellis recommended that the Court dismiss Ernst's federal claims-including the proposed claims in the second amended complaint-for lack of subject matter jurisdiction, and decline to exercise supplemental jurisdiction over Ernst's state law claims.
A.Lack of Subject Matter Jurisdiction
While Section 504 of the Rehabilitation Act and Title VI of the Civil Rights Act of 1965 both suggest that Ernst may have a remedy, they are limited to "program[s] or activit[ies] receiving federal financial assistance." 29 U.S.C. § 794(a); 42 U.S.C. § 2000d. Defendants did not receive any federal financial assistance. Accordingly, Magistrate Judge Ellis determined that this Court does not have subject matter jurisdiction over Ernst's Title ...