The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
DANIELLE HENDRICKS,
Plaintiff, 6:23-cv-487 (AMN/ATB)
v.
KRYSTAL CURLEY, et al.,
Defendants.
APPEARANCES:
DANIELLE HENDRICKS
1402 West Street
Room 5
Utica, NY 13502
Plaintiff, Pro Se
Hon. Anne M. Nardacci, United States District Judge:
ORDER
I. INTRODUCTION
On April 20, 2023, Plaintiff pro se Danielle Hendricks commenced this action against
Krystal Curley (“Curley”), Francis Grant (“Grant”), and Urban & Economic Development. See
Dkt. No. 1. Plaintiff filed a form civil rights complaint pursuant to 42 U.S.C. § 1983
(“Complaint”). See id. Specifically, Plaintiff alleges that her Section 81 housing voucher was
improperly terminated because, among other things, she was not afforded a pre-termination
1 The Court understands Plaintiff’s references to Section 8 in the Complaint to mean Section 8
Housing Assistance Payments Program of the United States Housing Act of 1937, as amended by
the Housing and Community Development Act of 1974, 42 U.S.C. § 1437f.
hearing.2 Id. at 2-3.
Plaintiff sought leave to proceed in forma pauperis (“IFP”). Dkt. No. 2. Plaintiff also
filed a motion for the appointment of counsel. Dkt. No. 3. This matter was referred to United
States Magistrate Judge Andrew T. Baxter, who, on May 2, 2023, issued a Report-
Recommendation and Order (“Report-Recommendation”) granting Plaintiff’s application to
proceed IFP for purposes of initial review, denying Plaintiff’s motion for the appointment of
counsel, and recommending that (i) Plaintiff’s Fourteenth Amendment due process claim against
defendants Curley and Grant survives initial review; (ii) Plaintiff’s Fourteenth Amendment due
process claim against the Urban & Economic Development defendant be dismissed with prejudice
without leave to amend; (iii) Plaintiff’s Fair Housing Act (“FHA”) and Americans with Disabilities
Act (“ADA”) claims be dismissed without prejudice with leave to amend; and (iv) Plaintiff be
given 45 days to file an amended complaint. See Dkt. No. 5 at 13-14. Magistrate Judge Baxter
advised Plaintiff that under 28 U.S.C. § 636(b)(1), she had fourteen days within which to file
written objections and that failure to object to the Report-Recommendation within fourteen days
would preclude appellate review. Id. at 14. Plaintiff has not filed any objections to the Report-
Recommendation and the time for filing objections has expired.
For the reasons set forth below, the Court adopts the Report-Recommendation in its
entirety.
II. STANDARD OF REVIEW
A district court reviews de novo those portions of a magistrate judge’s report-
recommendation that have been properly preserved with a specific objection. Petersen v. Astrue,
2 For a complete recitation of Plaintiff’s allegations of wrongful conduct, the parties are referred
to the Report-Recommendation. See Dkt. No. 5 at 3.
2 F. Supp. 3d 223, 228-29 (N.D.N.Y. 2012); 28 U.S.C. § 636(b)(1)(C). If no specific objections
have been filed, the court reviews a magistrate judge’s report-recommendation for clear error. See
Petersen, 2 F. Supp. 3d at 229 (citing Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983
Addition). After appropriate review, “the court may accept, reject or modify, in whole or in part,
the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C).
III. DISCUSSION
Because Plaintiff has not filed any objections to the Report-Recommendation, the Court
reviews the Report-Recommendation for clear error.
The Report-Recommendation appropriately applied the legal standard for review of a pro
se complaint under 28 U.S.C. § 1915(e)(2)(B).3 See Dkt. No. 5 at 1-2. Plaintiff alleges that her
civil rights were violated by two individual defendants, Curley and Grant, who are Section 8
employees, and one municipal defendant, Urban & Economic Development, when her Section 8
housing voucher was terminated. See Dkt. No. 1. Magistrate Judge Baxter correctly concluded
that Urban & Economic Development is not a proper defendant in this action, and should be
dismissed with prejudice because it does not administer the Section 8 housing program in Utica,
New York.4 See Dkt. No. 5 at 8-9.5 Moreover, Magistrate Judge Baxter correctly found that even
3 Pursuant to 28 U.S.C. § 1915(e)(2)(B), 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. See Livingston v.
Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998).
4 “Section 8 of the United States Housing Act of 1937, as amended, authorizes the Secretary of the
U.S. Department of Housing and Urban Development . . . to enter into contracts with state and
local public housing agencies . . . to provide financial assistance to low-income individuals or
families renting housing on the private rental market.” Augusta v. Cmty. Dev. Corp. of Long
Island, No. 07-CV-0361 (JG)(ARL), 2008 WL 5378386, at *1 (E.D.N.Y. Dec. 23, 2008), aff’d
sub nom. Augusta v. Cmty. Dev. Corp. of Long Island, 363 F. App’x 79 (2d Cir. 2010) (citations
omitted).
5 In Utica, the City of Utica Section 8 Program is the public housing authority that administers the
Section 8 program. CITY OF UTICA, https://cityofutica.com/departments/section-8/index (last
if Plaintiff had named the correct municipal defendant, Plaintiff has not alleged facts sufficient to
establish a claim under Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978).6 See id. at 7-9.
Accordingly, the Court adopts Magistrate Judge Baxter’s recommendation that Plaintiff’s claims
against Urban & Economic Development be dismissed with prejudice.
A. Fourteenth Amendment Due Process Claim
Magistrate Judge Baxter recommended that Plaintiff’s Fourteenth Amendment due process
claim against defendants Curley and Grant survives initial review and requires a response. Dkt.
No. 5 at 13.
The Fourteenth Amendment forbids states from depriving any person of property without
due process of law. See U.S. Const. amend. XIV, § 1 (“[N]or shall any State deprive any person
of life, liberty, or property, without due process of law . . ..”). “The two threshold questions in any
§ 1983 claim for denial of procedural due process are whether the plaintiff possessed a liberty or
property interest protected by the United States Constitution or federal statutes, and, if so, what
process was due before plaintiff could be deprived of that interest.” Green v. Bauvi, 46 F.3d 189,
194 (2d Cir. 1995) (citing Logan v. Zimmerman Brush Co., 455 U.S. 422, 428 (1982)).
First, Magistrate Judge Baxter found that Plaintiff has a protected property interest in
continuing to receive Section 8 housing assistance. See Dkt. No. 5 at 4-5 (citing Lawrence v. Town
of Brookhaven Dep’t of Hous., Cmty. Dev. & Intergovernmental Affairs, No. 07–CV–2243, 2007
WL 4591845, at *14 (E.D.N.Y. Dec. 26, 2007)). Second, Magistrate Judge Baxter found that
visited May 26, 2023).
6 Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978), outlines the limited circumstances in which
a municipality can be held liable for violations of 42 U.S.C. § 1983. Monell established that a
municipality can be held liable only when the “execution of a [municipality’s] policy or custom .
. . inflicts the injury,” and not for “an injury inflicted solely by its employees or agents.” 436 U.S.
at 694.
certain procedural safeguards are required before Plaintiff’s protected property interest in
continuing to receive Section 8 rental assistance may be terminated. See Dkt. No. 5 at 5. In order
to terminate Plaintiff’s Section 8 rental assistance, due process requires: (1) timely and adequate
notice, including the reasons for the proposed termination; (2) an opportunity to be heard at a pre-
termination hearing, including the right to present evidence and confront and cross-examine
witnesses; (3) a right to be represented by counsel at the hearing; (4) a written decision, including
the reasons for the determination and the evidence on which the decision maker relied; and (5) an
impartial decision maker. See Goldberg v. Kelly, 397 U.S. 254, 266-71 (1970); see also A.S. v.
Been, 228 F. Supp. 3d 315, 317 (S.D.N.Y. Jan. 23, 2017); Junior v. N.Y.C. Hous. Pres. & Dev.
Corp., No. 12-CV-3846 (PAC), 2013 WL 646464, at *6 (S.D.N.Y. Jan. 18, 2013); Rios v. Town
of Huntington Hous. Auth., 853 F. Supp. 2d 330, 338 (E.D.N.Y. 2012).
Magistrate Judge Baxter correctly concluded that the allegations in the Complaint raise a
Fourteenth Amendment procedural due process violation, as Plaintiff alleges that her Section 8
voucher was terminated without the opportunity for a hearing, despite Plaintiff’s multiple requests
for such. See Dkt. No. 5 at 5. Accordingly, the Court adopts Magistrate Judge Baxter’s
recommendation that Plaintiff’s Fourteenth Amendment due process claim against Curley and
Grant survives initial review and requires a response.
B. FHA and ADA Claims
Magistrate Judge Baxter recommended that Plaintiff’s FHA and ADA claims against
Curley and Grant be dismissed without prejudice and with leave to amend. Id. at 13.
The FHA, including the amendments thereto, and the ADA “prohibit governmental entities
from implementing or enforcing housing policies in a discriminatory manner against persons with
disabilities.” Tsombanidis v. W. Haven Fire Dep’t, 352 F.3d 565, 573 (2d Cir. 2003), superseded
by regulation on other grounds as stated in Perricone-Bernovich v. Tohill, 843 F. App’x 419, 420
(2d Cir. 2021) (summary order). The FHA makes it unlawful “‘[t]o discriminate in the sale or
rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a
handicap.’” Perricone-Bernovich, 843 F. App’x at 420 (quoting 42 U.S.C. § 3604(f)(1)). Title II
of the ADA states that “no qualified individual with a disability shall, by reason of such disability,
be excluded from participation in or be denied the benefits of the services, programs, or activities
of a public entity, or be subject to discrimination by any such entity.” Tsombanidis, 352 F.3d at
573 (quoting 42 U.S.C. § 12132). “To establish discrimination under either the [FHA] or the ADA,
plaintiffs have three available theories: (1) intentional discrimination (disparate treatment); (2)
disparate impact; and (3) failure to make a reasonable accommodation.” Martinez by Martinez v.
Lexington Gardens Assocs., 336 F. Supp. 3d 270, 277 (S.D.N.Y. 2018) (citation and internal
quotation marks omitted).
Magistrate Judge Baxter correctly concluded that Plaintiff failed to state a claim under the
FHA or the ADA because she has not alleged facts sufficient to demonstrate that Curley’s and
Grant’s actions were taken because of Plaintiff’s disability. Dkt. No. 5 at 6 (citing Barone v.
Lawyers’ Fund for Client Prot., No. 22-58, 2023 WL 1975783, at *2 (2d Cir. Feb. 14, 2023)); see
Rosa v. Pathstone Corp., No. 23-CV-1071 (LTS), 2023 WL 3123032, at *1 (S.D.N.Y. Apr. 27,
2023). Here, Plaintiff alleges that she has a schizophrenia diagnosis and was placed on a 90-day
mental health hold/assessment. Dkt. No. 1 at 3. However, Plaintiff has alleged no facts
establishing that her Section 8 voucher was terminated because of her mental health status.7 See
Dkt. No. 5 at 6. Because Plaintiff has failed to state a claim under the FHA and the ADA, the
7 The Complaint suggests that Curley and Grant only became aware of Plaintiff’s mental health
status after Plaintiff’s Section 8 housing voucher was already terminated. See Dkt. No. 5 at 7
(citing Dkt. No. 1).
Court adopts Magistrate Judge Baxter’s recommendation that Plaintiff’s claims be dismissed
without prejudice with leave to amend.8
Having reviewed the Report-Recommendation for clear error and found none, the Court
adopts the Report-Recommendation in its entirety.
IV. CONCLUSION
Accordingly, the Court hereby
ORDERS that the Report-Recommendation, Dkt. No. 5, is ADOPTED in its entirety; and
the Court further
ORDERS that Plaintiff’s Fourteenth Amendment due process claim against defendants
Curley and Grant SURVIVES initial review and requires a response; and the Court further
ORDERS that Plaintiff’s FHA and ADA claims are DISMISSED without prejudice and
with leave to amend; and the Court further
ORDERS that Plaintiff’s claims against defendant Urban & Economic Development be
DISMISSED with prejudice and without leave to amend, with respect of the appropriate
municipal entity; and the Court further
ORDERS that Plaintiff shall file an amended complaint within FORTY-FIVE (45) DAYS
of the filing date of this Order; and the Court further
ORDERS that, if Plaintiff does not file an amended complaint, the case is returned to
8 District courts generally should grant a pro se plaintiff an opportunity to amend a complaint to
cure its defects unless amendment would be futile. See Hill v. Curcione, 657 F.3d 116, 123-24 (2d
Cir. 2011). The Second Circuit has cautioned that district courts “‘should not dismiss [a pro se
complaint] without granting leave to amend at least once when a liberal reading of the complaint
gives any indication that a valid claim might be stated.’” Cuoco v. Moritsugu, 222 F.3d 99, 112
(2d Cir. 2000) (quoting Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999)). Here,
an amendment would not be futile because a liberal reading of Plaintiff’s Complaint suggests that
she may be able to allege facts sufficient to establish a claim under the FHA and the ADA.
Magistrate Judge Baxter for any orders relating to service of the complaint on defendants Curley
and Grant; and the Court further
ORDERS that, if Plaintiff files an amended complaint, the amended complaint is to be
returned to Magistrate Judge Baxter for review and further orders relating to service on the
defendants; and the Court further
ORDERS that the Clerk serve a copy of this Order on Plaintiff in accordance with the
Local Rules.
IT IS SO ORDERED.
Dated: May 26, 2023 Ouwel | . ! Jaraaeer
Albany, New York Anne M. Nardacci
U.S. District Judge