Brown v. NYCHA Development

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

CYNTHIA BROWN,

Plaintiff,

23-CV-5595 (LTS)

-against-

ORDER OF DISMISSAL

NYCHA DEVELOPMENT, WITH LEAVE TO REPLEAD

Defendant.

LAURA TAYLOR SWAIN, Chief United States District Judge:

Plaintiff, who is appearing pro se, brings this action invoking the Court’s federal question

jurisdiction, 28 U.S.C. § 1331. By order dated July 10, 2023, the Court granted Plaintiff’s request

to proceed in forma pauperis (“IFP”). For the reasons set forth in this order, the Court dismisses

the action for lack of subject matter jurisdiction, but grants Plaintiff 60 days’ leave to replead.

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

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.

Rule 8 requires a complaint to 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 Cynthia Brown, who resides in a Bronx County apartment building managed by

the New York City Housing Authority (“NYCHA”), brings this complaint alleging that, on May

3, 2023, she was sexually assaulted by a male NYCHA employee.

The following allegations are taken from Plaintiff’s complaint. Plaintiff, who is a single

mother with a child who has special needs, moved into a NYCHA building in December 2022. A

male NYCHA employee helped Plaintiff assemble her furniture. The employee then began

stopping by Plaintiff’s apartment at late hours, after his shift, making comments about having sex

with Plaintiff. On May 3, 2023, the employee knocked on Plaintiff’s apartment door, expressing

concern for her wellbeing because the employee had not seen Plaintiff for approximately three

weeks. Plaintiff told the employee that she was okay, and he then entered her apartment. Upon

noticing hickeys on Plaintiff’s neck, the employee commented, “you not going just be near me

and keep telling me no to pussy.” Plaintiff then yelled at him.1

Plaintiff asserts that she was diagnosed with PTSD and depression, and that the

employee’s actions brought back memories of past abuse. She asserts further that she feels

unsafe and is unable to sleep. She brings this complaint seeking monetary damages in the amount

of $8,000 for her injuries and to pay for her therapy.

DISCUSSION

A. Subject Matter Jurisdiction

The subject matter jurisdiction of the federal district courts is limited and is set forth

generally in 28 U.S.C. §§ 1331 and 1332. Under these statutes, federal jurisdiction is available

only when a “federal question” is presented or when plaintiff and defendant are citizens of

different states and the amount in controversy exceeds the sum or value of $75,000. “‘[I]t is

common ground that in our federal system of limited jurisdiction any party or the court sua

sponte, at any stage of the proceedings, may raise the question of whether the court has subject

matter jurisdiction.’” United Food & Com. Workers Union, Loc. 919, AFL-CIO v. CenterMark

Prop. Meriden Square, Inc., 30 F.3d 298, 301 (2d Cir. 1994) (quoting Manway Constr. Co., Inc.

v. Hous. Auth. of the City of Hartford, 711 F.2d 501, 503 (2d Cir. 1983)); see Fed. R. Civ. P.

12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court

must dismiss the action.”); Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999)

(“[S]ubject-matter delineations must be policed by the courts on their own initiative . . . .”).

1 It is unclear what happened after Plaintiff yelled at the employee because Plaintiff’s

handwriting is illegible.

Federal Question Jurisdiction

To invoke federal question jurisdiction, a plaintiff’s claims must arise “under the

Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. A case arises under

federal law if the complaint “establishes either that federal law creates the cause of action or that

the plaintiff’s right to relief necessarily depends on resolution of a substantial question of federal

law.” Bay Shore Union Free Sch. Dist. v. Kain, 485 F.3d 730, 734-35 (2d Cir. 2007) (quoting

Empire Healthchoice Assur., Inc. v. McVeigh, 547 U.S. 677, 690 (2006)). Mere invocation of

federal jurisdiction, without any facts demonstrating a federal law claim, does not create federal

subject matter jurisdiction. See Nowak v. Ironworkers Loc. 6 Pension Fund, 81 F.3d 1182, 1188-

89 (2d Cir. 1996).

Because Plaintiff sues NYCHA, a municipal entity, the Court construes Plaintiff’s federal

claims as claims brought under 42 U.S.C. § 1983. When a plaintiff sues a municipality under

Section 1983, however, 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

subjected’ to such deprivation.” (quoting Monell v. Dep’t of Soc. Servs., 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 a municipality, the plaintiff must allege facts showing (1) the

existence of a municipal 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 v. Brown, 520 U.S. 397, 403 (1997) (internal

citations omitted).

Here, Plaintiff brings an action against NYCHA, a city agency, but she does not identify

any policy, custom, or practice followed by NYCHA that caused a violation of her rights. See

Cash, 654 F.3d at 333 (holding that a Section 1983 plaintiff “must demonstrate that, through its

deliberate conduct, the municipality was the moving force behind the alleged injury”). Plaintiff’s

allegations thus fail to state a claim on which relief can be granted against NYCHA under

Section 1983.

To the extent that Plaintiff is attempting to hold NYCHA liable for the acts of its

employee, this claim would likely fail also. Courts in this Circuit have generally held that

employers are not liable to plaintiffs for sexual assaults under a theory of respondeat superior

since sexual misconduct is necessarily outside the scope of employment. See Doe v. New York

City Dep’t of Educ., No. 21-CV-4332, 2023 WL 2574741, at *5 (E.D.N.Y. Mar. 20, 2023) (“No

decision in New York has been cited to date in which the doctrine of respondeat superior was

held to apply to sexual assault.”) (quoting Doe v. Alsaud, 12 F. Supp. 3d 674, 677 (S.D.N.Y.

2014)). This is because “New York courts consistently have held that sexual misconduct and

related tortious behavior arise from personal motives and do not further an employer’s business,

even when committed within the employment context.” C.Q. v. Estate of Rockefeller, No. 20-

CV-2205 (VSB), 2021 WL 4942802, at *3 (S.D.N.Y. Oct. 21, 2021) (quoting Swarna v. Al-

Awadi, 622 F.3d 123, 144-45 (2d Cir. 2010).

Because Plaintiff fails to state a claim against NYCHA for the actions of its employee,

the Court dismisses Plaintiff’s federal claims, but grants Plaintiff leave to replead to allege facts

about what NYCHA did or failed to do that caused the violation of her rights.

Diversity of Citizenship Jurisdiction

Plaintiff’s claim that a NYCHA employee sexually assaulted her arises under state law,

but the court does not have jurisdiction over such a claim unless Plaintiff can show diversity of

citizenship. To establish diversity of citizenship jurisdiction under 28 U.S.C. § 1332, a plaintiff

must first allege that the plaintiff and the defendant are citizens of different states. Wis. Dep’t of

Corr. V. Schacht, 524 U.S. 381, 388 (1998). In addition, the plaintiff must allege to a “reasonable

probability” that the claim is in excess of the sum or value of $75,000.00, the statutory

jurisdictional amount. See 28 U.S.C. § 1332(a); Colavito v. N.Y. Organ Donor Network, Inc.,

438 F.3d 214, 221 (2d Cir. 2006) (citation and internal quotation marks omitted). Plaintiff

indicates in the complaint that she resides in New York, NYCHA is located in New York, and

presumably the NYCHA employee is also resides in New York, precluding complete diversity of

citizenship.

Because, as explained above, the court does not have subject matter jurisdiction of

Plaintiff’s federal claims, this court can exercise jurisdiction of Plaintiff’s sexual assault claim

against the NYCA employee only if it possesses diversity of citizenship jurisdiction. Because the

parties are not diverse, however, the Court does not have such jurisdiction of the claims.2

B. Leave to Replead

Plaintiff proceeds in this matter without the benefit of an attorney. District courts

generally should grant a self-represented 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); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). Indeed, 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.

2 The Court offers no opinion as to the viability of any state law claim Plaintiff may wish

to pursue in state court against the individual.

USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999)). In an abundance of caution, therefore,

the Court grants Plaintiff 60 days’ leave to replead her claims. The amended complaint must

allege facts giving rise to a federal municipal liability claim against NYCHA and, if Plaintiff

wishes to pursue state law claims only, facts indicating that the Court has diversity jurisdiction of

the state claims.

Plaintiff must provide a short and plain statement of the relevant facts supporting each

claim against NYCHA and the NYCHA employee. If Plaintiff intends to reassert her claims

against the NYCHA employee, she must name the individual as a Defendant and provide

addresses for both NYCHA and its employee. Plaintiff should include all of the information in

the amended complaint that Plaintiff wants the Court to consider in deciding whether the

amended complaint states a claim for relief. That information should include:

a) the names and titles of all relevant people;

b) a description of all relevant events, including what each defendant did or failed to do,

the approximate date and time of each event, and the general location where each

event occurred;

c) a description of the injuries Plaintiff suffered; and

d) the relief Plaintiff seeks, such as money damages, injunctive relief, or declaratory

relief.

Essentially, Plaintiff’s amended complaint should tell the Court: who violated her

federally protected rights and how; when and where such violations occurred; and why Plaintiff

is entitled to relief.

Because Plaintiff’s amended complaint will completely replace, not supplement, the

original complaint, any facts or claims that Plaintiff wants to include from the original complaint

must be repeated in the amended complaint.

CONCLUSION

Plaintiff’s amended complaint, filed IFP under 28 U.S.C. § 1915(a)(1), is dismissed for

lack of subject matter jurisdiction, Fed. R. Civ. P. 12(h)(3).

Plaintiff is granted leave to file an amended complaint that complies with the standards

set forth above. Plaintiff must submit the amended complaint to this Court’s Pro Se Intake Unit

within 60 days of the date of this order, caption the document as an “Amended Complaint,” and

label the document with docket number 23-CV-5595 (LTS). An Amended Complaint form is

attached to this order. No summons will issue at this time. If Plaintiff fails to comply within the

time allowed, and she cannot show good cause to excuse such failure, the Court will direct the

Clerk of Court to enter judgment in this case.

The Clerk of Court is instructed to hold this matter open on the docket until a civil

judgment is entered.

The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would

not be taken in good faith, and therefore IFP status is denied for the purpose of an appeal. Cf.

Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates

good faith when he seeks review of a nonfrivolous issue).

SO ORDERED.

Dated: April 15, 2024

New York, New York

/s/ Laura Taylor Swain

LAURA TAYLOR SWAIN

Chief United States District Judge

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

CV

TT (clu ber if has b

Write the full name of each plaintiff. ened) nummer troneines seen

-against- AMENDED

COMPLAINT

□□ Do you want a jury trial?

[(1Yes (CINo

Write the full name of each defendant. If you need more

space, please write “see attached” in the space above and

attach an additional sheet of paper with the full list of

names. The names listed above must be identical to those

contained in Section Il.

NOTICE

The public can access electronic court files. For privacy and security reasons, papers filed

with the court should therefore not contain: an individual’s full social security number or full

birth date; the full name of a person known to be a minor; or a complete financial account

number. A filing may include only: the last four digits of a social security number; the year of

an individual’s birth; a minor’s initials; and the last four digits of a financial account number.

See Federal Rule of Civil Procedure 5.2.

Rev. 2/10/17

I. BASIS FOR JURISDICTION

Federal courts are courts of limited jurisdiction (limited power). Generally, only two types of

cases can be heard in federal court: cases involving a federal question and cases involving

diversity of citizenship of the parties. Under 28 U.S.C. § 1331, a case arising under the United

States Constitution or federal laws or treaties is a federal question case. Under 28 U.S.C. § 1332,

a case in which a citizen of one State sues a citizen of another State or nation, and the amount

in controversy is more than $75,000, is a diversity case. In a diversity case, no defendant may

be a citizen of the same State as any plaintiff.

What is the basis for federal-court jurisdiction in your case?

[] Federal Question

L] Diversity of Citizenship

A. If you checked Federal Question

Which of your federal constitutional or federal statutory rights have been violated?

B. If you checked Diversity of Citizenship

1. Citizenship of the parties

Of what State is each party a citizen?

The plaintiff , ,is a citizen of the State of

(Plaintiffs name)

(State in which the person resides and intends to remain.)

or, if not lawfully admitted for permanent residence in the United States, a citizen or

subject of the foreign state of

If more than one plaintiff is named in the complaint, attach additional pages providing

information for each additional plaintiff.

Page 2

If the defendant is an individual:

The defendant, , is a citizen of the State of

(Defendant’s name)

or, if not lawfully admitted for permanent residence in the United States, a citizen or

subject of the foreign state of

.

If the defendant is a corporation:

The defendant, , is incorporated under the laws of

the State of

and has its principal place of business in the State of

or is incorporated under the laws of (foreign state)

and has its principal place of business in .

If more than one defendant is named in the complaint, attach additional pages providing

information for each additional defendant.

II. PARTIES

A. Plaintiff Information

Provide the following information for each plaintiff named in the complaint. Attach additional

pages if needed.

First Name Middle Initial Last Name

Street Address

County, City State Zip Code

Telephone Number Email Address (if available)

B. Defendant Information

To the best of your ability, provide addresses where each defendant may be served. If the

correct information is not provided, it could delay or prevent service of the complaint on the

defendant. Make sure that the defendants listed below are the same as those listed in the

caption. Attach additional pages if needed.

Defendant 1:

First Name Last Name

Current Job Title (or other identifying information)

Current Work Address (or other address where defendant may be served)

County, City State Zip Code

Defendant 2:

First Name Last Name

Current Job Title (or other identifying information)

Current Work Address (or other address where defendant may be served)

County, City State Zip Code

Defendant 3:

First Name Last Name

Current Job Title (or other identifying information)

Current Work Address (or other address where defendant may be served)

County, City State Zip Code

Defendant 4:

First Name Last Name

Current Job Title (or other identifying information)

Current Work Address (or other address where defendant may be served)

County, City State Zip Code

III. STATEMENT OF CLAIM

Place(s) of occurrence:

Date(s) of occurrence:

FACTS:

State here briefly the FACTS that support your case. Describe what happened, how you were

harmed, and what each defendant personally did or failed to do that harmed you. Attach

additional pages if needed.

INJURIES:

If you were injured as a result of these actions, describe your injuries and what medical

treatment, if any, you required and received.

IV. RELIEF

State briefly what money damages or other relief you want the court to order.

V. PLAINTIFF’S CERTIFICATION AND WARNINGS

By signing below, I certify to the best of my knowledge, information, and belief that: (1) the

complaint is not being presented for an improper purpose (such as to harass, cause

unnecessary delay, or needlessly increase the cost of litigation); (2) the claims are supported

by existing law or by a nonfrivolous argument to change existing law; (3) the factual

contentions have evidentiary support or, if specifically so identified, will likely have

evidentiary support after a reasonable opportunity for further investigation or discovery;

and (4) the complaint otherwise complies with the requirements of Federal Rule of Civil

Procedure 11.

I agree to notify the Clerk's Office in writing of any changes to my mailing address. I

understand that my failure to keep a current address on file with the Clerk's Office may

result in the dismissal of my case.

Each Plaintiff must sign and date the complaint. Attach additional pages if necessary. If seeking to

proceed without prepayment of fees, each plaintiff must also submit an IFP application.

Dated Plaintiff's Signature

First Name Middle Initial Last Name

Street Address

County, City State Zip Code

Telephone Number Email Address (if available)

I have read the Pro Se (Nonprisoner) Consent to Receive Documents Electronically:

OlYes

If you do consent to receive documents electronically, submit the completed form with your

complaint. If you do not consent, please do not attach the form.

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