Mercer v. N.Y.C. Hous. Auth.

Decision Date16 May 2022
Docket Number22-CV-3202 (LTS)
PartiesROBERT MERCER, Plaintiff, v. NEW YORK CITY HOUSING AUTHORITY, Defendant.
CourtU.S. District Court — Southern District of New York

ROBERT MERCER, Plaintiff,
v.

NEW YORK CITY HOUSING AUTHORITY, Defendant.

No. 22-CV-3202 (LTS)

United States District Court, S.D. New York

May 16, 2022


ORDER OF DISMISSAL

LAURA TAYLOR SWAIN, Chief United States District Judge:

Plaintiff, who is appearing pro se, invokes the Court's federal question and diversity of citizenship jurisdiction, alleging that Defendant violated his rights when a lead paint test detected lead in his apartment. Plaintiff asserts constitutional claims under 42 U.S.C. § 1983 as well as claims under 24 C.F.R. § 5.703. By order dated April 26, 2022, the Court granted Plaintiff's request to proceed in forma pauperis (IFP), that is, without prepayment of fees. For the reasons set forth below, the Court dismisses the complaint but grants Plaintiff 30 days' leave to replead a claim under the Fair Housing Act (FHA).

STANDARD OF REVIEW

The Court must dismiss an IFP complaint, or any portion of the complaint, that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); see Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must also dismiss a complaint when the Court lacks subject matter jurisdiction of the claims raised. See Fed. R. Civ. P. 12(h)(3).

While the law mandates dismissal on any of these grounds, the Court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret

1

them to raise the “strongest [claims] that they suggest, ” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original). But the “special solicitude” in pro se cases, id. at 475 (citation omitted), has its limits -to state a claim, pro se pleadings still must comply with Rule 8 of the Federal Rules of Civil Procedure, which requires a complaint to make a short and plain statement showing that the pleader is entitled to relief.

The Supreme Court has held that, under Rule 8, a complaint must include enough facts to state a claim for relief “that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible if the plaintiff pleads enough factual detail to allow the Court to draw the inference that the defendant is liable for the alleged misconduct. In reviewing the complaint, the Court must accept all well-pleaded factual allegations as true. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). But it does not have to accept as true “[t]hreadbare recitals of the elements of a cause of action, ” which are essentially just legal conclusions. Twombly, 550 U.S. at 555. After separating legal conclusions from well-pleaded factual allegations, the Court must determine whether those facts make it plausible - not merely possible - that the pleader is entitled to relief. Id.

BACKGROUND

Plaintiff Robert Mercer invokes the Court's federal question and diversity of citizenship jurisdiction.[1] He names as Defendant the New York City Housing Authority (NYCHA). The following allegations are taken from the complaint. On March 17, 2022, a lead paint test was conducted at 255 West 127th Street, a NYCHA housing complex in which Plaintiff resides. The

2

test detected a lead measurement of 0.8, which Plaintiff maintains exceeds the 0.5 threshold for non-hazardous conditions.

Plaintiff asks the Court to “allow [him] . . . the power and authority . . . to use the Constitution and the laws statutes, policies, treaty's, rules and regulations imposed by Acts, Congress and agency of the government of the United States of America . . . to protect my persons, my intellectual properties, my entities and my rights to life and Liberty, to ensure my own safety, protection and self-interest.” (ECF 2, at 2.)

Plaintiff asserts that NYCHA violated his rights under the First, Fifth, and Fourteenth Amendments and under 24 C.F.R. § 5.703, a regulation governing the Housing and Urban Development program.

Plaintiff seeks $10 million in damages, plus a “civil penalty” of $5 million. (Id.) DISCUSSION

A. Constitutional Claims

Plaintiff's claims that Defendant violated his federal constitutional rights arise under 42 U.S.C. § 1983. To state a claim under Section 1983, a plaintiff must allege both that: (1) a right secured by the Constitution or laws of the United States was violated, and (2) the right was violated by a person acting under the color of state law, or a “state actor.” West v. Atkins, 487 U.S. 42, 48-49 (1988).

When a plaintiff sues a municipality or a municipal entity such as NYCHA under Section 1983, it is not enough for the plaintiff to allege that one of the municipality's employees or agents engaged in some wrongdoing. The plaintiff must show that the municipality itself caused the violation of the plaintiff's rights. See Connick v. Thompson, 563 U.S. 51, 60 (2011) (“A municipality or other local government may be liable under this section [1983] if the governmental body itself ‘subjects' a person to a deprivation of rights or ‘causes' a person ‘to be

3

subjected' to such deprivation.”) (quoting Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 692 (1978)); Cash v. Cnty. of Erie, 654 F.3d 324, 333 (2d Cir. 2011). In other words, to state a Section 1983 claim against NYCHA, the plaintiff must allege facts showing (1) the existence of a NYCHA policy, custom, or practice, and (2) that the policy, custom, or practice caused the violation of the plaintiff's constitutional rights. See Jones v. Town of East Haven, 691 F.3d 72, 80 (2d Cir. 2012); Bd. of Cnty. Comm'rs of Bryan Cnty. v. Brown, 520 U.S. 397, 403 (1997) (internal citations omitted); Carrero v. N.Y.C. Hous. Auth., 890 F.2d 569, 576-77 (2d Cir. 1989) (holding that Section 1983 claims against NYCHA can only be brought if the alleged deprivation of rights occurred pursuant to NYCHA practice or policy).

Here, Plaintiff fails to state a claim that NYCHA violated his constitutional rights. Plaintiff alleges that elevated levels of lead were detected in his apartment and asserts that NYCHA has therefore violated his rights under the First, Fifth, and Fourteenth Amendments. Courts have long held, however, that there is no constitutional right to adequate or safe housing. See Lindsay v. Normet, 405 U.S. 56, 74 (1972) (“We do not denigrate the importance of decent, safe, and sanitary housing. But the Constitution does not provide judicial remedies for every social and economic ill. We are unable to perceive in [the constitution] any guarantee of access to dwellings of particular quality .... Absent constitutional mandate, the assurance of adequate housing . . . [is a] legislative, not judicial, function[]”); Paige v. New York City Hous. Auth., No. 17-CV-7481, 2018 WL 3863451, at *11 (S.D.N.Y. Aug. 4, 2018) (“Defendants' failure to prevent lead paint poisoning is not tantamount to a violation of substantive due process. So too, it is not enough to allege that Defendants' ‘stood by and did nothing.'” (quoting Pena v. DePrisco, 432 F.3d 98, 110)); Richardson v. City of New York, No. 12-CV-2545, 2013 WL 2124176, at *2 (S.D.N.Y. Apr. 17, 2013) (holding there is no “government obligation to provide adequate

4

housing”) (quoting Reaves v. Dep't of Veterans Affairs, No. 08-CV-1624, 2009 WL 35074, at *3 (E.D.N.Y. Jan. 6, 2009)); see also Allen v. New York City Hous. Auth., No. 10-CV-0168, 2012 WL 4794590, at *8 (S.D.N.Y. Sept. 11, 2012) (rejecting due process claims arising from NYCHA's failure to address mold), report & recommendation adopted.

It follows that there can be no claim under Section 1983 against NYCHA for its failure to provide Plaintiff with safe and sanitary housing. See Segal v. City of New York, 459 F.3d 207, 219 (2d Cir. 2006) (“Because the district court properly found no underlying constitutional violation, its decision not to address the municipal defendants' liability under [Section 1983] was entirely correct.”). The Court therefore...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT