Jenkins v. New York City Dept. of Homeless Svcs.

• Decision Date: 07 July 2009
• Docket Number: No. 09 Civ. 499(CM).,09 Civ. 499(CM).
• Citation: 643 F.Supp.2d 507
• Parties: Theodore JENKINS, Plaintiff, v. NEW YORK CITY DEPARTMENT OF HOMELESS SERVICES, Defendant.
• Court: U.S. District Court — Southern District of New York

643 F.Supp.2d 507

Theodore JENKINS, Plaintiff, v.NEW YORK CITY DEPARTMENT OF HOMELESS SERVICES, Defendant.

No. 09 Civ. 499(CM).

United States District Court, S.D. New York.

July 7, 2009.

COPYRIGHT MATERIAL OMITTED

Theodore Jenkins, New York, NY, pro se.

Jeffrey Scott Dantowitz, Office of Corporation Counsel NYC, New York, NY, for Defendant.

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

McMAHON, District Judge.

FACTS

In August 2007, Theodore Jenkins sought permanent housing from the New York City Department of Homeless Services("DHS").Jenkins underwent a psychiatric evaluation at the Bellevue Shelter on August 20, 2007.(Compl. Ex. A ("Greene Letter") 1).Jenkins was diagnosed with schizophrenia and placed in the Mental Health/Chemical Abuse ("MICA") program at the Fort Washington shelter.(Greene Letter 1).Jenkins is no longer in the shelter system and is now homeless.(Greene Letter 1).

Jenkins brings this lawsuit seeking placement in the general shelter population.(Greene Letter 4).He claims that he is not schizophrenic.(Greene Letter 4).Although the record is not clear, it appears that Jenkins voluntarily left the shelter system because he did not want to be assigned to the MICA facility.(Compl. 3)("Claimant declined the offer of transfer to another MICA facility"), (Greene Letter 1)("Due to his dissatisfaction with this placement, he is no longer in the shelter system at all").

On June 9, 2008Ashley Greene, an attorney with the Mental Hygiene Legal Services, wrote DHS on behalf of Jenkins, Greene indicated DHS would reconsider Jenkins' placement if he underwent a second psychiatric evaluation with the doctor of his choice.(Greene Letter 1).Jenkins objects to undergoing any new psychiatric evaluation, he demands to be admitted to the general shelter population, with the goal of obtaining permanent housing.(Greene Letter 1, 4).There is no evidence that Jenkins has submitted to a second psychiatric evaluation, or that DHS has reconsidered its diagnosis and assigned him to the general shelter population, Mr. Jenkins has been homeless since January 2008.(Compl. 2).

On October 3, 2008, Mr. Jenkins filed a pro se complaint against DHS in this Court.(Compl. 1).The Defendant moved to dismiss the complaint on March 17, 2009, and the parties held an initial conference on March 20, 2009.Mr. Jenkins filed a response on March 23, 2009, and DHS replied on April 6, 2009.

STANDARD OF REVIEW

The Defendant moves to dismiss the complaint for failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6), as well as a lack of subject matter jurisdiction on the Article 78 claim under Federal Rule of Civil Procedure 12(b)(1).Because Jenkins is a pro separty, his pleadings must be construed liberally and interpreted to make the strongest arguments they suggest.Abbas v. Dixon,480 F.3d 636, 639(2d Cir.2007).In liberally construing the plaintiffs pleadings the Court should make "reasonable allowances to protect pro se litigants from inadvertent forfeiture of important rights because of their lack of legal training".Id. at 639(quotingTraguth v. Zuck,710 F.2d 90, 95(2d Cir.1983)).

In evaluating a 12(b)(6) motion, a complaint that only raises "the mere possibility of misconduct" does not establish that the plaintiff is entitled to relief.Ashcroft v. Iqbal,___ U.S. ____, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868(2009).The plaintiff must establish that the allegations are pushed "across the line from conceivable to plausible".Id.(quotingBell Atlantic Corp. v. Twombly,550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929(2007))."Specific facts are not necessary" but the complaint must give the defendant fair notice of the plaintiff's claim.Erickson v. Pardus,551 U.S. 89, 89, 127 S.Ct. 2197, 167 L.Ed.2d 1081(2007).

A pro se complaint should be treated more liberally than a complaint drafted by lawyers.Erickson,551 U.S. at 89, 127 S.Ct. 2197.If a liberal reading of the pro se pleadings indicate a valid claim might be stated, and could be cured by better pleading, leave to amend the complaint should be granted.Cuoco v. Moritsugu,222 F.3d 99, 112(2d Cir.2000).However, this liberal interpretation "cannot be used to cure a complaint that consists merely of broad generalizations, sweeping castigations, and unfounded conclusions, but not specific facts from which an actual deprivation of constitutional rights may be inferred".Locicero,419 F.Supp.2d at 525(internal citations and quotations omitted).Therefore, if a liberal reading of a pro se complaint reveals a substantive lack of a cause of action, dismissal is appropriate.Cuoco,222 F.3d at 112.

In evaluating the 12(b)(1) motion, the Plaintiff must establish federal question jurisdiction pursuant to 28 U.S.C. § 1331 because the parties are not diverse.Federal question jurisdiction is most commonly exercised in cases in which federal legislation creates a cause of action.Merrell Dow Pharmaceuticals Inc. v. Thompson,478 U.S. 804, 808, 106 S.Ct. 3229, 92 L.Ed.2d 650(1986).In addition, federal-question jurisdiction extends to cases"where the vindication of a right under state law necessarily turned on some construction of federal law."Dow,478 U.S. at 808, 106 S.Ct. 3229(quotingFranchise Tax Board v. Construction Laborers Vacation Trust,463 U.S. 1, 8, 103 S.Ct. 2841, 77 L.Ed.2d 420(1983)).

ISSUES

Is the fact that DHS is not a suable entity grounds for dismissal of the complaint?

The Defendant argues that the DHS, as a City agency, has not been authorized as a suable entity under the New York City Charter.Mot. to Dismiss 13.The Defendant is "clearly correct" and "the overwhelming body of authority holds that [a city agency] is not a suable entity".Renelique v. Doe,No. 99 Civ. 10425, 2003 WL 23023771, at *6(S.D.N.Y.Dec. 29, 2003);New York City Charter Ch. 17 § 396.

However, the issue is whether this failure to plead the correct party is an example of an "inadvertent forfeiture of important rights because of [his] lack of legal training" that should be avoided by granting a pro se plaintiff leave to amend his complaint.Abbas,480 F.3d at 639.Granting leave to amend the complaint to name the proper party should only be granted if the amended complaint would survive a motion to dismiss and the amendment would not be futile.Walker v. New York City Dep't of Corrections,No. 01 Civ. 1116, 2008 WL 4974425, at *7(S.D.N.Y.Nov. 19, 2008).

In arguing that a city agency is not suable, the Defendant cites to Renelique, in which the court dismissed a pro se case after finding that the Department of Corrections("DOC")—the named defendant— was not a suable entity.2003 WL 23023771, at *7.However, Renelique does not stand for the proposition that a case should be dismissed with prejudice if the wrong municipal entity is sued.Although the court determined the DOC was not a suable entity, it evaluated the motion for summary judgment and the potential liability of the City as if it were named as the defendant.Id. at *6-7.Summary judgment dismissing the complaint was granted, not because the wrong entity was sued, but because there was no evidence of a City policy that caused the plaintiffs injury.Id. at *12-3.The court did not address the possibility of granting leave to amend the complaint to name the proper defendant, although in light of the court's ruling on the merit s, such an amendment would have been futile.

In Walker v. New York City Department of Corrections, by contrast the court specifically addressed the failure of a pro se plaintiff to properly plead the City of New York and concluded that the plaintiff should be granted leave to amend the complaint to name the correct defendant unless granting leave to amend would be futile.No. 01 Civ. 1116, 2008 WL 4974425, at *7(S.D.N.Y., Nov. 19, 2008).In Walkerthe plaintiff was acting pro se when she initially filed the complaint and named DOC as the defendant.2008 WL 4974425, at *7.After filing the complaint Walker retained counsel and in response to DOC's motion to dismiss requested leave to amend the complaint and substitute the City of New York as the defendant.2008 WL 4974425, at *7.In evaluating the motion the court noted that if the amended pleading would not survive a motion to dismiss it would be futile to grant leave to amend the complaint.Id. at *7(citingLucente v. IBM,310 F.3d 243, 258(2d Cir.2002)).

In this case, although DHS is not a suable entity, it would be inappropriate to dismiss the complaint based solely on the technical defect of a pro se complaint¹.Allowing Jenkins to amend his complaint to name the City of New York as the proper defendant would constitute a reasonable accommodation for a pro se plaintiff.However, as the court did in both Renelique and Walkerthis Court should evaluate whether or not granting leave to amend the complaint would be futile.In doing so the Court should evaluate the sufficiency of the Plaintiff's claims, assuming the City was properly named as the defendant.

Has the Plaintiff stated a claim upon which relief can be granted?

Jenkins' pleadings do not assert formal claims and are filled with disconnected facts and quotations from various federal statutes.The complaint, amplified by Jenkins' response to the motion, could be read to include the following claims: an Eighth Amendment claim of cruel and unusual punishment, a procedural due process claim for deprivation of a property interest, a procedural due process claim for deprivation of a liberty interest (also known as a "stigma-plus" claim), a claim under the Americans with Disabilities Act, a claim under the Fair Housing Act, and a challenge to DHS's diagnosis under Article 78 of the New York Civil Practice Law and Rules.

Eighth Amendment

Jenkins' complaint alleges, "Housing people permanently under these conditions amounts to `cruel and unusual treatment'".(Compl. 1).A liberal reading of this passage...