Smith v. Davis

• Docket Number: 5:22-CV-1202 (MAD/ML)
• Decision Date: 28 March 2023
• Parties: BISHME SMITH; and PARIS SMITH, Plaintiffs, v. HOLLEY DAVIS; TERESA JOHNSON; JULIE RICHARDSON; STEPHANIE ALBERT; PRESERVATION MGMT., INC.; COLD BLACK RIVER L.P.; and KELLEY CANNON, Defendants.
• Court: U.S. District Court — Northern District of New York

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BISHME SMITH; and PARIS SMITH, Plaintiffs, v. HOLLEY DAVIS; TERESA JOHNSON; JULIE RICHARDSON; STEPHANIE ALBERT; PRESERVATION MGMT., INC.; COLD BLACK RIVER L.P.; and KELLEY CANNON, Defendants.

No. 5:22-CV-1202 (MAD/ML)

United States District Court, N.D. New York

March 28, 2023

BISHME SMITH Plaintiff, Pro Se

PARIS SMITH Plaintiff, Pro Se

ORDER AND REPORT-RECOMMENDATION

MIROSLAV LOVRIC, UNITED STATES MAGISTRATE JUDGE

The Clerk has sent a pro se complaint in the above captioned action together with applications to proceed in forma pauperis, filed by Bishme Smith and Paris Smith (collectively “Plaintiffs”) to the Court for review. (Dkt. Nos. 1, 2, 3.) For the reasons discussed below I grant Plaintiffs' in forma pauperis applications, and recommend that Plaintiffs' Complaint be (1) accepted in part for filing, and (2) dismissed (a) in part with leave to replead, and (b) in part without leave to replead. (Dkt. Nos. 1, 2, 3.)

I. BACKGROUND

Construed as liberally^[1] as possible, Plaintiffs' Complaint alleges that their rights were violated by Holley Davis, Teresa Johnson, Julie Richardson, Stephanie Albert, Preservation Management, Inc., Cold Black River L.P., and Kelley Cannon (collectively “Defendants”). (See generally Dkt. No. 1.) More specifically, Plaintiffs allege that since November 30, 2021, they have rented an apartment in a complex called “Black River Apartments,” which is owned by Defendant Cold Black River L.P. (“Defendant Cold Black River”), and managed by Defendant Preservation Management, Inc. (“Defendant Preservation”). (Dkt. No. 1 at 3-5.) Plaintiffs allege that Defendants Davis, Johnson, Richardson, and Albert are employed by Defendant Preservation Management, Inc.^[2] (Id. at 2.) Plaintiffs allege that as of February 28, 2022, Defendant Cannon rented another apartment in Black River Apartments. (Id. at 3-4.)

Plaintiffs allege that Plaintiff Bishme is a Black man with a mental health diagnosis. (Dkt. No. 1 at 1.) Plaintiffs allege that Plaintiff Paris is a white woman with a mental health diagnosis. (Id. at 2.) Plaintiffs allege that Defendants Davis, Johnson, and Cannon are white females. (Id. at 2-3.)

Plaintiffs allege that on or about December 7, 2021, they realized that their rent calculation was high in proportion to their earnings because it included child support that Plaintiff Paris was not receiving. (Dkt. No. 1 at 5.) Plaintiffs allege that they communicated this error to Defendants PMI several times, over the course of several months, and Defendants PMI failed to timely recalculate Plaintiffs' accurate rent amount. (See generally Dkt. No. 1.)

Plaintiffs allege that they encountered several other issues with their rented apartment from Defendants PMI including, inter alia: (1) access to the proper mailbox, (2) heating temperatures, (3) items being left in the fire escape, (4) items being placed on the back porch, and (5) bed bug inspections. (Id.)

Plaintiffs allege that they attempted to communicate with Defendants PMI regarding issues they were having with Defendant Cannon who-after moving in-rescued a dog that peed in front of their door, roamed unleashed in common areas, and was loud. (Dkt. No. 1 at 7.) Plaintiffs allege that Defendants PMI failed to take any action to address the issues they were having with Defendant Cannon, which resulted in a “major incident” between Plaintiff Bishme and Defendant Cannon on May 30, 2022. (Id. at 8.)

Plaintiffs allege that on May 30, 2022, Defendant Cannon's son stood in front of Plaintiffs' door with Defendant Cannon's dog, preventing Plaintiff Bishme from entering Plaintiffs' apartment. (Id.) Plaintiffs allege that Plaintiff Bishme politely asked that Defendant Cannon's son and the dog move, but that when he refused, Plaintiff Bishme “grabbed the leash and politely moved the dog aside.” (Id.) Plaintiffs allege that Plaintiff Bishme entered the apartment and a few moments later Defendant Cannon “pound[ed] on the door,” Plaintiff Bishme opened the door, and Defendant Cannon “aggressively scream[ed] and yell[ed] in a threatening manner with her hand in [P]laintiff Bishme's face.” (Id.) Plaintiffs allege that Plaintiff Bishme then called the police but that, due to a personal relationship between the responding officer and Defendant Cannon, and racism, the police took a statement from Defendant Cannon and left. (Id. at 8-9.) Plaintiffs allege that approximately one week later, police charged Plaintiff Bishme with harassment for the incident with Defendant Cannnon on May 30, 2022. (Id. at 9.)

Plaintiffs allege that on June 29, 2022, during a meeting with Defendant Johnson, they stated that they felt they were “being treated differently” because of Plaintiff Bishme's race and that “management did not respond or deny that accusation.” (Dkt. No. 1 at 11.)

Plaintiffs allege that on July 27, 2022, they filed a complaint with FHEO HUD regarding the racial and disability discrimination they experienced in their interactions with Defendants PMI. (Dkt. No. 1 at 14.) More specifically, the Complaint alleges that Plaintiffs' FHEO HUD complaint alleged that (1) Defendants PMI were not responding to Plaintiffs' requests to move to another apartment because of (a) their mental health, and (b) issues with Defendant Cannon, and (2) Defendants PMI were not properly adjusting their rent amount. (Id.)

Plaintiffs allege that on September 10, 2022, they received a response to their FHEO HUD complaint, which indicated that it had been sent to the “other parties” against whom the discrimination was alleged. (Id. at 17.)

Plaintiffs allege that on September 14, 2022, they received a notice to vacate directing them to vacate their apartment by November 30, 2022, because their lease was up. (Dkt. No. 1 at 17.) Plaintiffs allege that Defendant Johnson informed them that the lease was not being renewed “based on a police report and court records” providing “reasonable grounds to believe that [P]laintiff Bishme violated a provision of the lease during the incident on May 30[], 2022.” (Id. at 17-18.)

Plaintiffs allege that they exchanged several e-mails with Defendants PMI and provided documentation reflecting that the criminal charge against Plaintiff Bishme (related to the incident with Defendant Cannon on May 30, 2022) was dismissed. (Dkt. No. 1 at 18-19.) Plaintiffs allege that, notwithstanding, Defendants PMI informed them that their lease would not be renewed. (Id. at 19.)

Plaintiffs allege that on October 26, 2022, they were served with another notice to vacate and non-renewal that was dated October 18, 2022, which stated-falsely-that the non-renewal was because Plaintiff Bishme admitted to criminal activity. (Id. at 21.)

Plaintiffs allege that Defendants Johnson and Davis “have used their community connections to have people at the bar across the street watch and stalk [P]laintiffs' family.” (Dkt. No. 1 at 22.)

Based on these factual allegations, Plaintiffs appear to assert the following eleven causes of action: (1) a claim pursuant to 42 U.S.C. § 1981 against Defendants; (2) a claim pursuant to 42 U.S.C. § 1982 against Defendants; (3) a claim pursuant to 29 U.S.C. § 794 against Defendants PMI; (4) a claim pursuant to 42 U.S.C. § 2000d against Defendants PMI; (5) a claim pursuant to 42 U.S.C. § 3604 against Defendants PMI; (6) a claim pursuant to 42 U.S.C. § 3617 against Defendants PMI; (7) a claim pursuant to New York Executive Law § 296(5-7) against Defendants PMI; (8) a claim pursuant to New York Real Property Law § 223-b against Defendants PMI; (9) a claim pursuant to New York Real Property Law § 235-b against Defendants PMI; (10) a claim of intentional infliction of emotional distress pursuant to New York common law against Defendants; and (11) a claim of breach of contract pursuant to New York common law against Defendants PMI. (Dkt. No. 1 at 24-32.) As relief, Plaintiffs seek declaratory judgment, a permanent injunction prohibiting Defendants from discriminating against them, compensatory damages in the amount of $350,000, punitive damages “in an amount that would punish Defendants . . . and . . . deter [them] from future discriminatory behavior,” and attorney's fees and costs. (Id. at 32-33.)

II. PLAINTIFFS' APPLICATIONS TO PROCEED IN FORMA PAUPERIS

“When a civil action is commenced in a federal district court, the statutory filing fee, currently set at $402, must ordinarily be paid. 28 U.S.C. § 1914(a). A court is authorized, however, to permit a litigant to proceed in forma pauperis status if a party “is unable to pay” the standard fee for commencing an action. 28 U.S.C. § 1915(a)(1).^[3] After reviewing Plaintiffs' in forma pauperis applications (Dkt. Nos. 2, 3), the Court finds that Plaintiffs meet this standard.

Therefore, Plaintiffs' applications to proceed in forma pauperis are granted.^[4]

III. LEGAL STANDARD FOR INITIAL REVIEW OF THE COMPLAINT

“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2).

“In reviewing a complaint . . . the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.

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