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Azkour v. Bowery Residents' Committee, Inc.

United States District Court, S.D. New York

March 23, 2015



THOMAS P. GRIESA, District Judge.

Plaintiff Hicham Azkour brings this action, pro se, against defendant Bowery Residents' Committee, Inc. ("BRC"), as well as BRC staff members Lawrence a/k/a Muzzy Rosenblatt, Janet Forte, Tereen Llewelyn-Miller, Kevin Martin, Angela Kedzior, and John and Jane Does 1-5 (collectively, "defendants").

In substance, plaintiff alleges that defendants improperly denied him proper housing, public assistance benefits, and the right to his medical records. Plaintiff further alleges that defendants failed to protect his person and property-namely, a laptop and software-from theft by other BRC residents, or even actively participated in such theft. Plaintiff alleges that this treatment was directed at plaintiff because he is an Arab. He asserts claims for deprivation of his constitutional rights under a number of federal statutes: 42 U.S.C. §§ 1981, 1983, 1985(3), 1986, and 2000d. Plaintiff brings further claims under 42 U.S.C. §§ 3604 and 3617, alleging both intentional discrimination and disparate treatment or impact discrimination. Finally, plaintiff makes claims for gross negligence and negligent infliction of emotional distress under New York state law.

Defendants move for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c), or, in the alternative, for summary judgment and dismissal under Federal Rule of Civil Procedure 56. (Dkt. No. 27.)

For the reasons discussed below, the court declines to construe defendants' motion as a motion for summary judgment. However, the court grants the motion for judgment on the pleadings on all counts.


The allegations in the complaint center on plaintiff's treatment while housed in a number of BRC facilities. BRC is a private non-profit organization that provides housing and nonresidential programming to thousands of New Yorkers. BRC employs over 650 staff, and operates with a budget of over $60 million annually. (Compl. ¶ 25.) Among other facilities, BRC operates the Jack Ryan Residence, a 200-bed homeless shelter funded in part by the New York City Department of Homeless Services ("DHS"). (¶ 27.) The Jack Ryan Residence "serve[s] homeless men and women of all ages who have a history of mental illness and who are seeking to attain or maintain stability in their mental health." (¶ 28 (internal quotation marks omitted).) The Jack Ryan Residence operates pursuant to a BRC contract with DHS, and is licensed by the New York State Office of Temporary and Disability Assistance. ( Id. )

The named and unnamed individual defendants are all BRC employees working at the Jack Ryan Residence. (¶¶ 31-32.) While the complaint is not entirely clear as to each individual defendant's role, it appears that defendant Rosenblatt supervised the Jack Ryan Residence, and defendant Kedzior worked as a psychiatrist serving BRC residents throughout New York. (¶ 24.)

On June 9, 2011, plaintiff was referred to a BRC shelter called the Boulevard Residence. (¶ 44.) While at the Boulevard Residence, plaintiff was diagnosed "with Post Traumatic Stress Disorder and other mental illnesses." (¶ 45.)

On September 9, 2011, plaintiff was transferred to the Jack Ryan Residence. (¶ 48.) He resided there until July 3, 2013, when he was transferred to another BRC facility called the Los Vecinos Residence. Plaintiff currently lives in the Los Vecinos Residence, which he describes as "a supportive, permanent housing program for the mentally ill and disabled people, which is owned, operated, and managed by BRC." (¶¶ 5, 83.) Plaintiff has thus "spent more than two years in BRC's transitional housing residences because he signed a contract with BRC promising him to be referred to suitable permanent housing." (¶¶ 213, 214.)

Plaintiff's "race" is "Arab, " his "color" is "white, " and his "national origin" is "Moroccan." (¶¶ 174-76.) Plaintiff alleges that defendants-as well as unnamed co-residents in BRC housing-intentionally discriminated against him because he is an Arab. Among other things, plaintiff claims defendants discriminated against him by (1) denying him the benefits of his "contract" with BRC, "on account of his race as Arab" (¶ 112); (2) failing to refer him to appropriate housing facilities (¶¶ 113, 121); (3) denying him access to medical and other records (¶¶ 114-15); (4) preventing him from complaining about his housing conditions-including the repeated sale of narcotics on site by violent co-residents-to various state or federal agencies (¶ 118, 230); (5) denying the security of plaintiff's person and property by allowing other residents to access his private locker, and preventing him from reporting the alleged theft of his laptop to the NYPD (¶¶ 52, 66-74, 116-17, 120, 131); and (6) falsely diagnosing him with mental illness for the purpose of securing financial gain. (¶ 122).

Plaintiff further claims that, due to his Arab race, defendants conspired with "Tonie Baez, DHS Senior Counsel, and Michael Yorio, Esq., OASAS Patient Advocacy Unit Manager... to deprive... [plaintiff] of equal protection of the laws" by "getting rid of Plaintiff without addressing his complaints." (¶¶ 78, 161-65.) Defendants allegedly conspired to prematurely move plaintiff from one residence (the Jack Ryan Residence) to another (the Los Vecinos Residence). As a result, plaintiff was "not able to secure prior to his move-out date, as all residents would, his DSS furniture allowance, " thus forcing him to sleep "on a bare mattress without any sheets, pillow or blanket." (¶¶ 134-35.) This "premature" removal of plaintiff from the Jack Ryan Residence also denied plaintiff "full participation in any investigation as to the theft of his property, " including the stolen laptop referenced above. (¶¶ 199-201.) Plaintiff claims that defendants transferred him from the Jack Ryan Residence in "retaliation" for his insistence on an investigation into the laptop theft, which was encouraged by defendants with their "knowledge and connivance." (¶¶ 131-32; 198-99.)

Although defendants "own, operate, and manage more suitable buildings than the one to which Plaintiff was removed, " and "suitable assisted housing apartments remained available to other renters of a different protected class, " plaintiff claims that he was "denied every opportunity to interview for suitable housing." (¶¶ 213, 214, 218, 221.) Defendants allegedly "intentionally" excluded plaintiff "in participation from [and] denied him the benefits of... their programs or activities receiving federal assistance" on account of his race (Arab), color (white) and national origin (Moroccan). (¶¶ 174-77.)

On account of the treatment outlined above, plaintiff seeks "injunctive relief, declaratory relief compensatory damages, punitive damages, treble damages where applicable, liquidated damages where applicable, and any other, further, just, and equitable relief by this Court." (¶ 17.)


I. Legal Standard for Judgment on the Pleadings

Under Rule 12(c) of the Federal Rules of Civil Procedure, a defendant who has already filed an answer to a complaint may move for judgment on the pleadings. Fed.R.Civ.P. 12(c). In deciding a Fed.R.Civ.P. 12(c) motion the court applies the same standard as it would in deciding a Rule 12(b) motion. Patel v. Contemporary Classics of Beverly Hills, 259 F.3d 123, 126 (2d Cir. 2001). In both postures, the court must accept all allegations in the complaint as true, drawing all reasonable inferences in the non-moving party's favor, and must decide whether the plaintiff has pled sufficient facts to state a claim for relief that is plausible on its face. Id. ; Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The court will not dismiss the case unless it is satisfied that the complaint cannot state any set of facts that would entitle plaintiff to relief. Patel, 259 F.3d at 126. In deciding such a motion, the court may consider "any written instrument attached to the complaint, statements or documents incorporated into the complaint by reference... and documents possessed by or known to the plaintiff and upon which it relied in bringing the suit." ATSI Commc'ns Inc. v. Shaar Fund. Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (internal citation omitted).

Where, as here, a plaintiff is proceeding pro se, that plaintiff "is entitled to a particularly liberal reading" of the complaint. Lopez v. Jet Blue Airways, 662 F.3d 593, 596 (2d Cir. 2011). Thus, when considering pro se submissions, a court must interpret them "to raise the strongest arguments that they suggest." Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (per curiam) (internal quotation marks omitted). Nevertheless, "to survive a motion to dismiss, a pro se plaintiff must still plead sufficient facts to state a claim that is plausible on its bee." Bodley v. Clark, No. 11 Civ. 8955, 2012 WL 3042175, at *2 (S.D.N.Y. July 23, 2012). ...

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