Tasfay v. Ramos

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK ELECTRONICALLY FILED

DOC #: □□

DATE FILED:_2/14/22

Jama M. Tasfay,

Plaintiffs,

20-cv-5472 (AJN)

~ MEMORANDUM

Melissa Ramos, et al., OPINION & ORDER

Defendants.

ALISON J. NATHAN, District Judge:

Plaintiffs Jama M. Tasfay and Desmond Rolle, who are proceeding pro se, brought this

action against Defendants Acacia Network, Inc., Johani Vialet-Rodriguez (collectively “Acacia

Defendants”), Nadia DiSalvo, and Melissa Ramos (collectively “Municipal Defendants”).

Plaintiffs allege violations under the Fair Housing Act, 24 U.S.C. § 3601 ef seq. and violations of

their Fourth and First Amendment rights pursuant to 42 U.S.C. § 1983. On September 28, 2021,

this Court granted in part and denied in part Acacia Defendants’ motion to dismiss. Tasfay v.

Ramos, 20-CV-5472 (AJN), 2021 WL 4443303, at *2-3 (S.D.N.Y. Sept. 28, 2021). The Court

now addresses Municipal Defendants’ motion to dismiss the amended complaint. For the

reasons that follow, the Court GRANTS the motion to dismiss.

I. BACKGROUND

Plaintiffs “resided in a DHS shelter operated by Acacia until they were removed on or

about May 31, 2019.” Dkt. No. 24 at 6. Plaintiffs allege that they received a paper notification

from Defendant Ramos on May 30, 2019, that they would be removed the next day. Dkt. No. 9,

Am. Compl. at 5. The complaint states that “[t]he only reason [Ramos] would take such a

foolish action would be to discriminate,” and she would have known Plaintiffs’ race from the

personal info in the Department of Homeless Services’ system. Id. Plaintiffs allege that they

were forcibly removed by DHS police on May 31 in the presence of Defendant Vialet-Rodriguez

(the Acacia Director) and another Acacia employee. Id. at 5, 8. During this encounter, the

officers “seiz[ed] many of [Plaintiffs’] belongings and h[e]ld them outside the apartment.” Id. at

5–6. Plaintiffs attempted to record the encounter on their cellphones but Defendant DiSalvo “hit

[Plaintiff’s] hand and caused [the] phone to hit the ground.” Id. at 6.

Plaintiffs filed their original complaint on July 15, 2020, alleging violations under the Fair

Housing Act, 24 U.S.C. § 3601 et seq., and violations of their Fourth and First Amendment

rights pursuant to 42 U.S.C. § 1983. Dkt. No. 3. They then filed an amended complaint on

October 6, 2020, Dkt. No. 9, pursuant to this Court’s September 2, 2020 order, Dkt. No. 8.

Plaintiffs seek damages in the amount of $4 million. Am. Compl. at 6. Municipal Defendants

moved to dismiss the amended complaint pursuant to Rule 12(b)(6) on April 20, 2021. Dkt. No.

40. Plaintiffs filed their opposition on May 18, 2021, Dkt. No. 45, and Defendants filed a reply

in support on June 14, 2021. Dkt. No. 50.

II. LEGAL STANDARD

“To survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (quoting Bell Atl 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. A plaintiff is

not required to provide “detailed factual allegations” in the complaint. Twombly, 550 U.S. at

555. To survive a 12(b)(6) motion, however, a plaintiff must nonetheless assert “more than

labels and conclusions.” Id. Ultimately, the “[f]actual allegations must be enough to raise a

right to relief above the speculative level.” Id. When applying this standard, a Court must

accept the allegations in the complaint as true and draw all reasonable inferences in the non-

movant’s favor. See ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007);

In re NYSE Specialists Sec. Litig., 503 F.3d 89, 95 (2d Cir. 2007) (Sotomayor, J.). The Court

need not “accept as true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S.

at 555.

When a plaintiff is proceeding pro se, the Court holds the pleadings “to less stringent

standards than formal pleadings drafted by lawyers.” Boddie v. Schneider, 105 F.3d 857, 860

(2d Cir. 1997) (quoting Haines v. Kerner, 404 U.S. 519, 521 (1972)). That is, the Court will

liberally construe the complaint. See McLeod v. Jewish Guild for the Blind, 864 F.3d 154, 156

(2d Cir. 2017). Notwithstanding this, “the duty to liberally construe a plaintiff's complaint is not

the equivalent of a duty to re-write it.” Kirk v. Heppt, 532 F. Supp. 2d 586, 590 (S.D.N.Y. 2008)

(cleaned up). If a pro se plaintiff has not pled sufficient facts to state a claim that is plausible on

its face, the Court must dismiss his complaint. See Hill v. Curcione, 657 F.3d 116, 122 (2d Cir.

2011).

III. DISCUSSION

Plaintiffs allege violations under the Fair Housing Act, 24 U.S.C. § 3601 et seq., and

violations of their Fourth and First Amendment rights pursuant to 42 U.S.C. § 1983. The Court

addresses each claim in turn.

A. The FHA Claim is Dismissed

Defendants assert that Plaintiffs have failed to state a claim for racial discrimination and

therefore the FHA claims must be dismissed. Dkt. No. 42 at 5–6. The Court agrees for the same

reasons articulated in the order dismissing in part the amended complaint against the Acacia

Defendants. Tasfay v. Ramos, 20-CV-5472 (AJN), 2021 WL 4443303, at *2-3 (S.D.N.Y. Sept.

28, 2021). The FHA makes it unlawful “[to] discriminate against any person in the terms,

conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities

in connection therewith, because of race.” Francis v. Kings Park Manor, Inc., 992 F.3d 67, 72–

73 (2d Cir. 2021); see also 42 U.S.C. § 3604(b). Because Plaintiffs do not allege direct evidence

of discrimination, the McDonnell Douglas burden-shifting framework applies. Francis, 992

F.3d at 73. Accordingly, Plaintiffs must plausibly allege that they: “(1) [are] member[s] of a

protected class, (2) suffered an adverse . . . action, and [3] ha[ve] at least minimal support for the

proposition that the [housing provider] was motivated by discriminatory intent.”

Even liberally construing the allegations in the amended complaint, Plaintiffs have failed

to plead sufficient facts to support the proposition that Defendants were motivated by

discriminatory intent. The amended complaint merely alleges that “the only reason [Defendant

Ramos] would take such a foolish action would be to discriminate.” Am. Compl. at 5. It further

asserts such an inference is reasonable because Defendant Ramos knew Plaintiffs’ race from

their DHS files. Id. Such conclusory allegations are insufficient to state a claim of

discrimination under the FHA. See Francis, 992 F.3d at 72–73 (dismissing complaint alleging

violations of FHA that lacked even “minimal support for the proposition that the [defendants]

were motivated by discriminatory intent”); Tasfay, 2021 WL 4443303, at *2-3. Thus, even

under the “less stringent standard” accorded to pro se pleadings, the complaint fails to

sufficiently allege discrimination in violation of FHA. The Court accordingly grants

Defendants’ motion to dismiss as to the FHA claims.1

1 Because the Court dismisses the FHA claim on this basis, it need not address Defendants’ further arguments that

the claim is barred by res judicata. See Dkt. No. 42 at 4.

B. Section 1983 Claims

Plaintiffs also assert claims pursuant to 42 U.S.C. § 1983. “To establish a claim under 42

U.S.C. § 1983, Plaintiff must show that he was denied a constitutional or federal statutory right

and that the deprivation of that right occurred under color of state law.” Favourite v. 55 Halsey

Street, Inc., 381 F. Supp. 3d 266, 282 (S.D.N.Y. 2019).

1. The Fourth Amendment Claim is Dismissed

Plaintiffs’ Fourth Amendment claim must be dismissed because the complaint fails to

adequately allege that they were denied a constitutional right. Plaintiffs’ Fourth Amendment

claim rests on their allegation that “[t]he DHS police officers . . . seiz[ed] many of [their]

belongings and [held] them outside the apartment” for an unspecified amount of time. Dkt. No.

9 at 5–6. Most eviction-type seizures do not violate the Fourth Amendment. Thomas v. Cohen,

304 F.3d 563, 574 (6th Cir. 2002) (citing Soldal v. Cook County, 506 U.S. 56, 71 (1992)).

Seizing an individual’s belongings during an eviction can rise to a Fourth Amendment violation

only when that seizure is unreasonable. For example, “in Soldal, the Supreme Court found facts

sufficient to make out a § 1983 claim where the sheriffs knew there was no court order and yet

stood by as the owners of a trailer park used excessive force to remove Soldal’s trailer, badly

damaging it in the process.” Ray v. New York City Off. of the Sheriff, 17-CV-1586 (AJN), 2018

WL 1583300, at *3 (S.D.N.Y. Mar. 27, 2018), aff'd sub nom. Pollok v. Chen, 806 F. App’x 40

(2d Cir. 2020); see also Thomas, 304 F.3d at 575 (finding an unreasonable seizure when

“Defendants’ involvement [in the eviction] was neither brief nor passive”). Here, Plaintiffs do

not allege sufficient facts to allow “the court to draw the reasonable inference” that the seizure

was unreasonable. Iqbal, 556 U.S. at 678. And while the Court construes Plaintiffs’ complaint

liberally, it cannot “re-write” the complaint to meet the bar necessary to establish a Fourth

Amendment violation. Kirk, 532 F. Supp. 2d at 590. Accordingly, the Court grants Defendants’

motion to dismiss the Fourth Amendment claim.

2. The First Amendment Claim is Dismissed

Plaintiffs’ First Amendment claim must be dismissed because Defendant DiSalvo is

protected by the doctrine of qualified immunity. “Qualified immunity protects public officials

from liability for civil damages when one of two conditions is satisfied: (a) the defendant’s

action did not violate clearly established law, or (b) it was objectively reasonable for the

defendant to believe that his action did not violate such law.” Garcia v. Does, 779 F.3d 84, 92

(2d Cir. 2015). For a law to be “clearly established” its contours must be “sufficiently clear

[such] that every reasonable official would have understood that what he is doing violates that

right.” Charles v. City of New York, 12-CV-6180 (SLT)(SMG), 2017 WL 530460, at *19

(E.D.N.Y. Feb. 8, 2017) (cleaned up). In this Circuit, courts rely upon “Supreme Court and

Second Circuit precedent existing at the time of the alleged violation” to determine whether or

not the law was clearly established. Id.

Assuming, without deciding, that the general right to film a police officer during her

official duties was clearly established in the Second Circuit at the time of the alleged violation,

such a right cannot encompass Plaintiffs’ behavior here. Courts that have found a clearly

established right to record police recognize that this right has limitations. See, e.g.,

Higginbotham v. City of New York, 105 F. Supp. 3d 369, 381 (S.D.N.Y. 2015) (“Certainly, the

right to record police activity in a public space is not without limits . . . .); Rivera v. Foley, No.

3:14-CV-00196 (VLB), 2015 WL 1296258, at *10 (D. Conn. Mar. 23, 2015) (“Even if recording

police activity were a clearly established right in the Second Circuit, Plaintiff's conduct is beyond

the scope of that right as it has been articulated by other circuits.”); Charles, 2017 WL 530460,

at *24 (explaining that “the right to film police activity is not absolute, but subject to reasonable

time, place and manner limitations”). Chief among these limitations is when the recording “is

done by the subject of the police activity.” Higginbotham, 105 F. Supp. 3d at 381; see Picard v.

Torneo, No. 3:16-CV-1564 (WWE), 2019 WL 4931353, at *5 (D. Conn. Sept. 16, 2019) (finding

no clearly established right when the recorder was “not a journalist or even a bystander; he was a

subject of [the policer officers’] investigation and performance of their official duties”). Since

Plaintiffs were the subject of Defendant DiSalvo’s activity during the alleged incident, their

clearly established right to record a police officer (should it exist) is inapplicable here.

Accordingly, Plaintiffs’ First Amendment claim must be dismissed.

IV. CONCLUSION

For the reasons stated above, the Court GRANTS Defendants’ motion to dismiss.

Defendants’ request for an extension of time to respond to the amended complaint is

administratively DENIED as moot. Dkt. No. 39. This resolves Dkt. Nos. 39 and 40. The Court

will resolve Acacia Defendants’ pending motion for judgment on the pleadings in due course.

Dkt. No. 64.

The Court finds pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order

would not be taken in good faith and, therefore, in forma pauperis status is denied for the

purpose of any appeal. See Coppedge v. United States, 369 U.S. 438, 444–45 (1962).

The Clerk of Court is respectfully directed to mail a copy of this memorandum opinion

and order to Plaintiffs and note its mailing on the docket.

SO ORDERED.

Dated: February 14, 2022 AM \) ilge

New York, New York

ALISON J. NATHAN

United States District Judge