Ash v. Jacobson
| Decision Date | 01 June 2020 |
| Docket Number | 1:16-cv-9548-GHW |
| Parties | DAMON ASH, Plaintiff, v. BETTY JACOBSON and LAURA PORSCHAR, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Plaintiff Damon Shalel Ash is Jewish. In his submissions to the Court, Mr. Ash has made clear that this identity is very important to him. Because Mr. Ash is African-American, he alleges that many people—including Defendants Betty Jacobson and Laura Porschar (the "remaining Defendants")—have questioned the authenticity of his ethnic and religious identity. For that reason, the Court wants to be clear that it respects Mr. Ash's claim of Jewish ancestry. Mr. Ash says he is Jewish, and the Court has no reason to believe that is untrue.
But this case is not about whether Mr. Ash is Jewish. It is about whether Mr. Ash has stated a plausible claim for relief against the defendants he chose to name in this lawsuit. In a prior opinion, the Court dismissed Mr. Ash's claims but granted Mr. Ash leave to replead claims for religious discrimination and defamation against the remaining Defendants. He did so—and now the remaining Defendants again move to dismiss his claims. The remaining Defendants are not state actors and Mr. Ash's Fair Housing Act claim is barred by the statute of limitations, so the remaining Defendants motion for judgment on the pleadings is GRANTED.
The Court described the background and procedural history of this lawsuit in its prior opinion. See Ash v. City of New York (Ash II), No. 1:16-cv-9548-GHW, 2020 WL 58240, at *1-3 (S.D.N.Y. Jan. 6, 2020).2 In Ash II, the Court dismissed as untimely Mr. Ash's claims against former Defendants Lieutenant Leahy, Officer McKenzie, and Sergeant Lee. Id. at *5-6.3 Mr. Ash did not argue that he was entitled to equitable tolling of the statute of limitations. But the Court granted leave to Mr. Ash to submit an affidavit to provide factual support for an argument that he was entitled to equitable tolling anyway. Id. at *7. That was because Mr. Ash's submissions suggested that he might have suffered from a "medical condition or mental impairment" that was an "extraordinary circumstance that prevented him from timely filing a complaint in this case." Id. The Court likewise granted Mr. Ash leave to leave to replead his religious discrimination and defamation claims against the remaining Defendants. Id. at *10.
Mr. Ash submitted two letters in response to the Court's order. Mr. Ash styled the first as a motion for equitable tolling. Dkt No. 140. Mr. Ash styled the second as an amended complaint. Dkt Nos. 140-41. This was Mr. Ash's fifth amended complaint. The Court rejected Mr. Ash's request for equitable tolling because Mr. Ash's submissions were "insufficient to meet his burden to show" that his diagnosis as a manic-depressive "was an extraordinary circumstance justifying the application of equitable tolling in this case." Ash v. City of New York (Ash III), No. 1:16-CV-9548-GHW, 2020 WL 703952, at *2 (S.D.N.Y. Feb. 12, 2020). The Court thus dismissed Mr. Ash's claims against Officer McKenize, Lieutenant Leahy, Sergeant Lee, and the City of New York with prejudice. Id.
The Court construes the fifth amended complaint as Mr. Ash's attempt to replead his defamation and religious discrimination claims against the remaining Defendants. The fifth amended complaint contains a lively, though difficult to follow, narrative including several Biblical quotations and cameos from Queen Elizabeth, Cesare Borgia (spelled as "Ceasar Borje" by Mr. Ash), and Leonardo Da Vinci, among others. See, e.g., FAC at 3, 6. It is unfortunately difficult to tell what Mr. Ash's historical narrative has to do with his claims against the remaining Defendants.
In the portions of his fifth amended complaint that contain allegations relevant here, Mr. Ash alleges that he rented an apartment from an organization called the United Jewish Council ("UJC"). See FAC at 2. The UJC allegedly employed the remaining Defendants. Id. at 2-6. Mr. Ash alleges that the remaining Defendants and another UJC employee named Craig Pride mistreated him from 2011 through 2016. Id. Mr. Ash alleges that UJC employees, including the remaining Defendants, directed racial epithets at him. Id. at 8-10. Mr. Ash also attached twenty-five exhibits, captioned "A" through "Y" to his amended complaint. The Court construes Mr. Ash's fifth amended complaint as raising claims for religious discrimination and defamation under 42 U.S.C. § 1983 and a claim for housing discrimination under the Fair Housing Act ("FHA").
The remaining Defendants moved for judgment on the pleadings under Federal Rule of Civil Procedure 12(c). Dkt Nos. 157-59. Mr. Ash opposed that motion, Dkt No. 156, and the remaining Defendants replied to Mr. Ash's opposition. Dkt No. 160. In his opposition, Mr. Ash alleges additional facts to support his religious discrimination and defamation claims. Mr. Ash alleges that Porschar "would cons[is]tently go into [his] place and desecrate [his] relig[i]ous items[.]" Opp. at 2. He also alleges that the remaining defendants "called [him] racial names and refer[red] to [him] as adevil." Id. at 3. Mr. Ash alleges that the remaining Defendants' unkind words about him "sp[read] through[]out the lower east side and my building like a virus." Id. In substance, Mr. Ash alleges in his fifth amended complaint and his opposition that the remaining Defendants derided—and sometimes, actively interfered with—his religious practices and said nasty things about him.
"After the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings." Fed. R. Civ. P. 12(c). The legal standard for a Rule 12(c) motion is the same as for a motion under Rule 12(b)(6). See City of New York v. Beretta U.S.A. Corp., 524 F.3d 384, 392 (2d Cir. 2008) ().
A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). If a complaint fails to meet this pleading standard, a defendant may move to dismiss it for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss pursuant to Rule 12(b)(6), a complaint "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "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." Id. (citing Twombly, 550 U.S. at 556). "To survive dismissal, the plaintiff must provide the grounds upon which his claim rests through factual allegations sufficient 'to raise a right to relief above the speculative level.'" ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (quoting Twombly, 550 U.S. at 544).
Determining whether a complaint states a plausible claim is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S.at 679 (citation omitted). A court must accept all facts alleged in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Burch v. Pioneer Credit Recovery, Inc., 551 F.3d 122, 124 (2d Cir. 2008) (per curiam). But a complaint that offers "labels and conclusions" or "naked assertion[s]" without "further factual enhancement" will not survive a motion to dismiss. Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555, 557).
Because Mr. Ash is proceeding pro se, the Court must liberally construe his allegations and "interpret[] [them] to raise the strongest arguments that they suggest." Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (quotation omitted); see also Erickson v. Pardus, 551 U.S. 89, 94 (2007) (); Nielsen v. Rabin, 746 F.3d 58, 63 (2d Cir. 2014) . Courts must afford pro se plaintiffs "special solicitude" before granting motions to dismiss. Ruotolo v. I.R.S., 28 F.3d 6, 8 (2d Cir. 1994). Even so, "dismissal of a pro se complaint is . . . appropriate where a plaintiff has clearly failed to meet the minimum pleading requirements." Rahman v. Schriro, 22 F. Supp. 3d 305, 310 (S.D.N.Y. 2014) (citing Rodriguez v. Weprin, 116 F.3d 62, 65 (2d Cir. 1997)).
On a motion to dismiss or a motion for judgment on the pleadings, a court may ordinarily "consider only the complaint, any written instrument attached to the complaint as an exhibit, any statements or documents incorporated in it by reference, and any document upon which the complaint heavily relies." In re Thelen LLP, 736 F.3d 213, 219 (2d Cir. 2013). But "allegations made in a pro se plaintiff's memorandum of law, where they are consistent with those in the complaint, may also be considered on a motion to dismiss." Braxton v. Nichols, No. 08 Civ. 8568 (PGG), 2010 WL 1010001, at *1 (S.D.N.Y. Mar. 18, 2010); see also Rosado v. Herard, No. 12 Civ. 8943 (PGG)(FM), 2013 WL 6170631, at *3 (S.D.N.Y. Nov. 25, 2013) (citation omitted). The Court has thus considered the allegations in Mr. Ash's opposition to this motion for judgment on the pleadings. Yet "[w]here aplaintiff's motion papers assert entirely new claims that do not arise out of the facts alleged in the complaint, the court need not consider them." Vlad-Berindan v. MTA N.Y.C. Transit, 14-CV-675 (RJS), 2014 WL 6982929, at *6 (S.D.N.Y. Dec. 10, 2014) (Sullivan, J.) Bernstein v. City of New York, No. 06...
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