Avila v. ACACIA Network, Inc.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

JIMMY AVILA,

Plaintiff,

-against-

ACACIA NETWORK, INC.; TREVOR

1:24-CV-0884 (LTS)

GRIFFITHS, Program Director, PMP; AJA

DOUGLAS, Quality Assurance Director; NEW

ORDER OF DISMISSAL

YORK CITY FIELD OFFICE OF MENTAL

WITH LEAVE TO REPLEAD

HEALTH; KIM F. BEN-ATAR, Deputy Director

of Housing; NYC ADULT PROTECTIVE

SERVICES; THOMAS GLENOY, APS Senior

Supervisor; 1412 COLLEGE AVENUE LLC,

Defendants.

LAURA TAYLOR SWAIN, Chief United States District Judge:

Plaintiff Jimmy Avila, of the Bronx, New York, who is proceeding pro se, filed this

action asserting claims of disability-based discrimination, as well as claims of retaliation, under

the Fair Housing Act (“FHA”) and the Americans with Disabilities Act (“ADA”); claims of

constitutional violations under 42 U.S.C. § 1983; and claims under state law, seeking damages

and injunctive relief. Plaintiff sues: (1) Acacia Network, Inc. (“Acacia”), which may be

Plaintiff’s apartment sublessor; (2) Trevor Griffiths, whom Plaintiff describes as “Program

Director, PMP”; (3) Aja Douglas, who appears to be Acacia’s Director of Quality Assurance of

Supportive Housing; (4) the “New York City Field Office of Mental Health,” which the Court

understands to be the New York State Office of Mental Health (“NYSOMH”); (5) “Kim F. Ben-

Atar,” who appears to be Kim Benatar, Deputy Director of Housing at the NYSOMH; (6)”NYC

Adult Protective Service,” which the Court understands to be the Adult Protective Services

Program (“APS”), a program of the New York City Department of Social Services’ Human

Resources Administration (“HRA”); (7) Thomas Glenoy, whom Plaintiff describes as an “APS

Senior Supervisor,” and (8) 1412 College Avenue, LLC, which may be the owner of the

apartment building where Plaintiff resides.

By order dated February 8, 2024, the Court granted Plaintiff’s request to proceed in

forma pauperis (“IFP”), that is, without prepayment of fees. For the following reasons, the Court

dismisses this action, but grants Plaintiff 30 days’ leave to replead his claims in an amended

complaint.

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. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In

reviewing the complaint, the Court must accept all well-pleaded factual allegations as true. Id.

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. Id. (citing 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. at 679.

BACKGROUND

While Plaintiff does not specify whether he suffers from a disability, he has attached to

his complaint a copy of a letter, dated June 2, 2023, issued by Hasnian Afza, M.D., a psychiatrist

employed by NYC Health + Hospitals, which states that Plaintiff “has been diagnosed with

Schizoaffective disorder, bipolar type,” and that he “is at risk of relapse, psychiatric

decompensation and potential rehospitalization without stable housing and financial resources.”

(ECF 1, at 30.) In that letter, Dr. Afza “strongly recommend[s] that [Plaintiff] receive supporting

housing and eligible financial disability benefits.” (Id.)

Plaintiff alleges the following: On January 3, 2024, “Plaintiff entered into a lease and

relocation agreement with [Basics, Inc.]”1 (ECF 1, at 3.) “Upon thorough review and

1 Basics, Inc., also known as Bronx Addiction Services Integrated Concept System, Inc.,

appears to be a subdivision of, or is affiliated with, Acacia. In his complaint’s statement of claim,

Plaintiff does not specify the name of the defendant with whom he entered into a lease and a

relocation agreement. He has attached to his complaint, however, a copy of an excerpt from a

relocation agreement and one-year sublease agreement in which he appears to agree to end his

lease or sublease with Basics, Inc., as to his previous apartment, and enter into another sublease

with Basics, Inc., as to his current apartment. (ECF 1, at 17-23.) He has also attached a sublease

agreement for his current apartment that is written on Acacia letterhead and that, while

acknowledging that his apartment building is owned by “1412 College Avenue COL, LLC,”

treats Basics, Inc., as his landlord. (Id. at 25-26.) According to that sublease agreement,

Plaintiff’s apartment building “contains certain units to be used as residential dwellings for

participants of the Basics Supportive Housing Program, a rental assistance program that is

consultation with legal counsel, it was brought to . . . Plaintiff’s attention that several clauses

within the aforementioned agreement violate . . . Plaintiff’s tenant rights and the [ADA].” (Id.)

“[T]here is a provision within the lease which states that . . . Plaintiff ‘refuses social services’2[;]

[it] is inaccurate and constitutes a misrepresentation of . . . Plaintiff’s intentions as a person

protected by the [ADA.]” (Id.) This is because “Plaintiff is entitled to reasonable

accommodations[,] including the provision of social services when deemed necessary by . . .

Plaintiff’s healthcare providers.” (Id.) Plaintiff states that, “[b]y including this false statement in

the lease, Acacia . . . is effectively prohibiting . . . [him] from accessing the support and services

that are essential to . . . [his] well-being.” (Id.) In addition, “Plaintiff believes . . . that the

circumstances under which the lease was presented and signed amount to duress as . . . [he] was

compelled to agree to the terms and conditions that restrict . . . [his] tenant rights and ignore the

recommendations of . . .[his] healthcare professionals.”3 (Id. at 3-4.) Because of that, Plaintiff

believes “that the lease agreement is invalid and unenforceable due to the conditions under which

it was executed.” (Id. at 4.) Accordingly, “Plaintiff demands that the lease and relocation

agreement be revised to accurately reflect . . . [his] rights and entitlement to reasonable

administered by the [NYSOMH] and Promesa Inc.,” and that Basics, Inc. “has control of, and is

legally entitled to make available . . . certain units in the building.” (Id. at 25.)

2 Attached to Plaintiff’s complaint is an email, dated January 3, 2024, from Aja Douglas,

alleged to be Acacia’s Director of Quality Assurance of Supportive Housing, to Plaintiff, in

which Douglas attaches a copy of the excerpt of the abovementioned relocation agreement and

one-year sublease agreement. (ECF 1, at 17-23.) Douglas’s email advises Plaintiff “that the

agency will not be providing any social service[s] and that [it] will just be providing a tenant-

based subsidy.” (Id. at 17.) The relocation agreement excerpt itself also states that Plaintiff “is

refusing social services and will solely be part of the program on a rent basis.” (Id. at 21.)

3 The relocation agreement excerpt states, however, that “[e]ach of the parties

acknowledge that this Agreement is a fair and reasonable Agreement, and is not the result of the

any fraud, duress, coercion, pressure, harassment, or undue influence exercised by either party.”

(ECF 1, at 23.)

accommodations under the [ADA] as well as any and all other relief deemed necessary and

applicable.” (Id.)

Plaintiff alleges that, in addition to discriminating against him, Defendants retaliated

against him “for succeeding in a previous legal action for violations of these laws and

obligations[,] which prompted [them] to specifically include these discriminatory terms and

conditions in the subsequent agreement . . . [and] to wrongfully call[] [APS] and report[] . . .

Plaintiff to [APS].”4 (Id. at 5-6.) He also alleges that “[t]he APS Defendants[,] while acting

under the color of law[,] came to [his] home . . . and were asked to leave numerous times by . . .

[him]; . . . [he] protested the misconduct of the APS Defendants by exposing their misconduct on

various platforms[,] including You[T]ube.”5 (Id. at 10.) Plaintiff further alleges that his actions

“prompted the APS Defendants to take retaliatory action against . . . [him] by attempting to

wrongfully hospitalize . . . [him].” (Id.)

In addition to the injunctive relief mentioned above, Plaintiff seeks damages and a trial

by jury.6

4 Plaintiff has also attached to his complaint a copy of a July 21, 2021 stipulation of

settlement of an action brought by him against Basics, Inc., in the Civil Court of the City of New

Yor, Bronx County, Housing Part, regarding his previous apartment and visits by Basics, Inc.,

personnel to that apartment. (ECF 1, at 13-15.)

5 Plaintiff has further attached to his complaint a copy of a February 2, 2024 email that he

sent to members of the New York City Police Department (“NYPD”) and others, including other

New York City and New York State-agency officials, in which he asserts that, one day previous,

on February 1, 2024, “[a] false police report was made . . . by [an] [u]nknown individual

accompanied by APS-Ms. Ajayi and unknown 2 males came without [n]otice in which [they

were] required to do by law.” (ECF 1, at 33.)

6 In the relocation agreement excerpt, however, the parties (Plaintiff and Basics, Inc.)

agreed to waive damages and a trial by jury:

in any action, proceeding or counterclaim brought by either of such parties against

the other with respect to any matter whatsoever arising out of or in any way

connected with [that] agreement, the relationship of Owner and Occupant,

Occupant’s use or occupancy of the apartment, or the enforcement of any remedy

DISCUSSION

The Court understands that Plaintiff is asserting: (1) claims of disability-based

discrimination, as well as claims of retaliation, against Acacia and 1412 College Avenue, LLC,

and against any individual defendants employed by Acacia and 1412 College Avenue, LLC,

including Douglas and, possibly, Griffiths, under the FHA; (2) claims of disability-based

discrimination, as well as claims of retaliation, against Acacia, 1412 College Avenue, LLC, the

NYSOMH, and APS, under the Rehabilitation Act; (3) claims of disability-based discrimination,

as well as claims of retaliation, against the NYSOMH and APS, under Title II of the ADA;

(5) claims of federal constitutional violations against Benatar, APS, and Glenoy under 42 U.S.C.

§ 1983; and (6) claims against all of the defendants under state law.

A. Overlap with previously-filed cases: Avila v. Acacia Network, Inc., 1:23-CV-7834

(LTS), and Avila v. Acacia Network, 1:23-CV-10260 (LTS)

Before Plaintiff filed the present pro se action on February 2, 2024, he filed other pro se

actions in this court. On September 1, 2023, he filed a pro se action against Acacia and Griffiths;

that action, known as Avila v. Acacia Network, Inc., 1:23-CV-7834 (LTS) (“Avila I”), is pending

before the Court. On November 21, 2023, Plaintiff filed another pro se action against:

(1) Acacia; (2) Douglas; (3) the entity that apparently owns Plaintiff’s previous apartment

building, 1212 Grant Realty LLC; (4) Manny Stein; and (5) the Director of the NYSOMH’s New

whether pursuant to statute, in contract or tort, and irrespective of the nature or

basis of the claim. . . . No damages shall be awarded and Occupant hereby waives

any claim for damages . . . in any action or proceeding (whether judicial or an

arbitration) relating to Owner’s withholding, delaying or conditioning any consent

or approval or the reasonableness of any such withholding, delay or condition.

(ECF 1, at 22-23.)

York City Field Office, Caren Abate; that action, known as Avila v. v. Acacia Network, 1:23-CV-

10260 (LTS) (“Avila II”), is also pending before the Court.

Even granting Plaintiff’s present complaint the liberal construction that is due, Plaintiff

seems to be reasserting claims in the present action against Acacia, Douglas, and Griffiths that he

has asserted in Avila I and Avila II. For this reason, the Court dismisses, without prejudice, any

claims against Acacia, Douglas, and Griffiths that Plaintiff is asserting in this action that he is

also asserting in Avila I and Avila II. See Curtis v. Citibank, N.A., 226 F.3d 133, 138 (2d Cir.

2000) (“As part of its general power to administer its docket, a district court may stay or dismiss

a suit that is duplicative of another federal court suit. . . . Because of the obvious difficulties of

anticipating the claim or issue-preclusion effects of a case that is still pending, a court faced with

a duplicative suit will commonly[,] [among other things,] . . . dismiss it without prejudice. . . .”);

see also Mackey v. Bd. of Educ. for the Arlington Cent. Sch. Dist., 112 F. App’x 89, 91 (2d Cir.

2004) (summary order) (citing Curtis, 226 F.3d at 138, and affirming the district court’s

dismissal without prejudice of those claims within an action that were duplicative of claims in

another pending action, while the district court adjudicated other claims).

B. Claims under the FHA

Claims of discrimination under the FHA against Acacia, 1412 College Avenue

LLC, Douglas, and Griffiths

The FHA “broadly prohibits discrimination in housing.” Gladstone, Realtors v. Vill. of

Bellwood, 441 U.S. 91, 93 (1979). Among other things, it prohibits the “refus[al] to sell or rent

after the making of a bona fide offer, . . . [and the] refus[al] to negotiate for the sale or rental of,

or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion,

sex, familial status, . . . national origin,” or disability.7 42 U.S.C. § 3604(a), (f)(1). It also

prohibits discrimination “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, color, religion, sex, familial status, . . . national origin,” or disability. § 3604(b), (f)(2).

Generally, to state a claim of intentional discrimination under the FHA, a plaintiff must

allege facts showing that he is “‘a member of a protected class,’ suffered relevant ‘adverse’

treatment, and ‘. . . [he must sustain] a minimal burden of showing facts suggesting an inference

of discriminatory motivation.’” Palmer v. Fannie Mae, 755 F. App’x 43, 45 (2d Cir. 2018)

(summary order) (quoting Littlejohn v. City of New York, 795 F.3d 297, 311 (2d Cir. 2015)

(emphasis in original, footnote omitted)). “‘[A] plaintiff need only give plausible support to a

minimal inference of discriminatory motivation’ at the pleading stage.” Id. at 45-46 (quoting

Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 84 (2d Cir. 2015)). Thus, “a plaintiff

may not need to prove that [his] protected status was a but-for cause of the adverse action [he]

suffered, but only a motivating factor.” Id. at 46 (citing, inter alia, Vega, 801 F.3d at 86); see,

e.g., Sykes v. NYC Hous. Auth., No. 1:22-CV-2127 (MKV), 2022 WL 875902, at *2 (S.D.N.Y.

Mar. 24, 2022). “Aggrieved persons have long been permitted to assert [FHA] claims against

individual defendants who engaged in affirmative acts of discrimination or enforced a

corporation’s discriminatory rules or policies.” Andujar v. Hewitt, No. 02-CV-2223 (SAS), 2002

WL 1792065, at *10 (S.D.N.Y. Aug. 2, 2002) (collecting cases).

7 “To demonstrate a disability under the FHA, a plaintiff must show: (1) ‘a physical or

mental impairment which substantially limits one or more . . . major life activities’; (2) ‘a record

of having such an impairment’; or (3) that he or she is ‘regarded as having such an impairment.’”

See Rodriguez v. Vill. Green Realty, Inc., 788 F.3d 31, 40 (2d Cir. 2015) (quoting 42 U.S.C.

§ 3602(h)).

The Court assumes, for the purposes of this order, that Plaintiff has a disability, as

defined by the FHA. He alleges no facts, however, showing that his disability was at least a

motivating factor with regard to his allegations of discrimination by Acacia, 1412 College

Avenue LLC, Douglas, or Griffiths, including any regarding his entrance into a renewal

agreement and/or sublease that appears to have specifically stated, and to which he seems to have

agreed, that neither Acacia nor its employees would provide him with any social services. Thus,

Plaintiff has failed to state a claim of intentional discrimination under the FHA against Acacia,

1412 College Avenue LLC, Douglas, and Griffiths, and the Court dismisses those claims for that

reason. See 28 U.S.C. § 1915(e)(2)(B)(ii).

In light of Plaintiff’s pro se status, however, the Court grants Plaintiff leave to replead his

claims of discrimination under the FHA in an amended complaint in which he alleges facts

sufficient to state such a claim.

Claims of retaliation under the FHA against Acacia, 1412 College Avenue

LLC, Douglas, and Griffiths

The FHA also prohibits “coerc[ion], intimidat[ion], threat[s], or interfere[nce] with any

person in the exercise or enjoyment of, or on account of his having exercised or enjoyed, or on

account of his having aided or encouraged any other person in the exercise or enjoyment of, any

right granted or protected by” the antidiscrimination provisions of the FHA. 42 U.S.C. § 3617.

To state a claim of retaliation under the FHA, a plaintiff must allege that a defendant:

(1) . . . engaged in protected activity by opposing conduct prohibited under the

FHA; (2) . . . [was] aware of that activity; (3) . . . subsequently took adverse

action against [the] plaintiff[]; and (4) that a causal connection exists between the

protected activity and the adverse action, i.e., that a retaliatory motive played a

part in the adverse action.

Lynn v. Vill. of Pomona, 373 F. Supp. 2d 418, 432 (S.D.N.Y. 2005), aff’d, 212 F. App’x 38 (2d

Cir. 2007) (summary order). “Protected activity under the FHA refers to action taken to protest

or oppose statutorily prohibited discrimination, i.e., retaliating because a person made a

complaint, testified, assisted, or participated in any manner in a proceeding under the FHA.”

Paladino v. Beaumont, No. 20-CV-0065, 2023 WL 9469277, at *4 (W.D.N.Y. Sept. 1, 2023),

report & recommendation adopted, 2024 WL 343308 (W.D.N.Y. Jan. 29, 2024). “[F]or purposes

of retaliation, an adverse action is any action that would be sufficiently severe to deter a

reasonable person in the plaintiff’s position from participating in a protected activity.” Burris v.

Hous. & Servs. Inc., No. 17-CV-9289 (JGK), 2023 WL 1966120, at *10 (S.D.N.Y. Feb. 13,

2023). A plaintiff can show a causal connection: “‘(1) indirectly, by showing that the protected

activity was followed closely by discriminatory treatment, or through other circumstantial

evidence such as disparate treatment of fellow [individuals] who engaged in similar conduct; or

(2) directly, through evidence of retaliatory animus directed against the plaintiff by the

defendant.’” Id. at *9 (S.D.N.Y. Feb. 13, 2023) (quoting Natofsky v. City of New York, 921 F.3d

337, 353 (2d Cir. 2019) (alteration in original)). As with claims of discrimination under the FHA,

claims of retaliation under the FHA allow for individual liability. See Burris v. Hous. & Servs.

Inc., No. 17-CV-9289 (JGK), 2019 WL 1244494, at *5 (S.D.N.Y. Mar. 18, 2019); Ponce v. 480

E. 21st Street, LLC, No. 12-CV-4828, 2013 WL 4543622, at *4 (E.D.N.Y. Aug. 28, 2013).

Plaintiff seems to allege that Acacia, 1412 College Avenue LLC, Douglas, and/or

Griffiths retaliated against him for bringing a previous lawsuit against Acacia and/or, perhaps,

those other defendants. While it is unclear whether Plaintiff is referring to Avila I, Avila II,

and/or his abovementioned state-court litigation, the Court assumes, for the purposes of this

order, that Plaintiff engaged in protected activity, and that Acacia, 1412 College Avenue LLC,

Douglas, and Griffiths were aware of that activity. It is unclear from Plaintiff’s allegations,

however, that Acacia, 1412 College Avenue LLC, Douglas, and/or Griffiths took adverse action

against Plaintiff, by either refusing to provide social services to Plaintiff after he expressly

agreed not to receive them, or by reporting Plaintiff to APS. Even if such acts are considered to

be adverse actions under the FHA, Plaintiff has not alleged facts sufficient to show that there was

a causal connection between his protected activity and those adverse action(s). Thus, the Court

dismisses, for failure to state a claim on which relief may be granted, Plaintiff’s claims of

retaliation under the FHA. See § 1915(e)(2)(B)(ii).

The Court, however, grants Plaintiff leave to replead such claims in an amended

complaint in which he alleges facts sufficient to state such a claim.

C. Claims under the Rehabilitation Act

Claims of discrimination under the Rehabilitation Act against Acacia, the

NYSOMH, APS, and 1412 College Avenue LLC

Plaintiff may also be asserting claims of discrimination under the Rehabilitation Act

against Acacia, the NYSOMH, APS, and 1412 College Avenue LLC. Under this statute:

[n]o otherwise qualified individual with a disability in the United States . . . shall,

solely by reason of her or his disability, be excluded from the participation in, be

denied the benefits of, or be subjected to discrimination under any program or

activity receiving Federal financial assistance or under any program or activity

conducted by any Executive agency or by the United States Postal Service.

29 U.S.C. § 794(a).8

To state a claim under the Rehabilitation Act, the plaintiff must allege that: (1) the

plaintiff is a qualified individual with a disability; (2) the defendant is subject to the

Rehabilitation Act; and (3) the plaintiff was denied the opportunity to participate in or benefit

8 For the purposes of the Rehabilitation Act, the term “individual with a disability”

incorporates by reference the definition of “disability” in the ADA. 29 U.S.C. § 705(20)(B).

Under the ADA, and like under the FHA, a “disability” is defined as: “(A) a physical or mental

impairment that substantially limits one or more major life activities of [an] individual; (B) a

record of such an impairment; or (C) being regarded as having such an impairment.” 42 U.S.C.

§ 12102(1)(A)-(C).

from the defendant’s services, programs, or activities, or was otherwise discriminated against by

the defendant, by reason of the plaintiff’s disability.9 Shomo v. City of New York, 579 F.3d 176,

185 (2d Cir. 2009) (quoting Henrietta D v. Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003)). To

show that the defendant is subject to the Rehabilitation Act, “a plaintiff must show that the

defendant[ ] [is either a federal executive agency, the United States Postal Service (“USPS”), or]

receive[s] federal funding.” Henrietta D., 331 F.3d at 272; see § 794(a).

Plaintiff alleges no facts showing that Acacia or 1412 College Avenue LLC, which both

appear to be private entities; the NYSOMH, a New York State agency10; or APS, a New York

City agency;11 receives federal funding. Even if any of those defendants has received federal

9 Following the ruling of the Supreme Court of the United States in Gross v. FBL Fin.

Servs., Inc., 557 U.S. 167, 176-77 (2009), in which the court held that “age discrimination must

be the ‘but-for’ cause of an adverse employment action for . . . liability to attach” under the Age

Discrimination in Employment Act of 1967 (ADEA), the United States Court of Appeals for the

Second Circuit has not decided whether “but-for” causation or “mixed motive” causation is

required to state a non-employment discrimination claim under the Rehabilitation Act or Title II

of the ADA. Bolmer v. Oliveira, 594 F.3d 134, 148-49 (2d Cir. 2010) (discussion in the context

of Title II of the ADA); see Wright v. N.Y. State Dep’t of Corrs., 831 F.3d 64, 72 (2d Cir. 2016)

(standards under Title II of the ADA and the Rehabilitation Act “are generally the same”). But cf.

Natofsky, 921 F.3d at 345 (2d Cir. 2019) (holding that “but-for” causation applies to employment

discrimination claims brought under the Rehabilitation Act).

10 The requirement that the NYSOMH receive federal funding is not only necessary in

order to state a claim of discrimination against it under the Rehabilitation Act; it is also a

requirement to show the State of New York’s waiver of Eleventh Amendment immunity as to

such claims. Cf. Matagrano v. N.Y. State Dep’t of Corrs. & Cmty. Supervision, 9:19-CV-0763,

2020 WL 7338586, at *11 n.18 (N.D.N.Y. Dec. 14, 2020) (“New York’s acceptance of federal

funds on behalf of [the NYS]OMH . . . waives its Eleventh Amendment defense to Plaintiff’s

Rehabilitation Act claims against” that entity).

11 The Court must dismiss Plaintiff’s claims against APS because, as an agency of the

City of New York, it is not an entity that can be sued. N.Y. City Charter ch. 17, § 396 (“[A]ll

actions and proceedings for the recovery of penalties for the violation of any law shall be brought

in the name of the city of New York and not in that of any agency, except where otherwise

provided by law.”); Jenkins v. City of New York, 478 F.3d 76, 93 n.19 (2d Cir. 2007); Morris v.

NYC HRA, No. 13-CV-1845, 2013 WL 3148664, at *3 (E.D.N.Y. June 19, 2013) (HRA and

APS); see also Emerson v. City of New York, 740 F. Supp. 2d 385, 395 (S.D.N.Y. 2010) (“[A]

plaintiff is generally prohibited from suing a municipal agency.”) The Court therefore dismisses

Plaintiff’s claims against APS for failure to state a claim on which relief may be granted, see

funding, however, Plaintiff’s allegations are insufficient to show that any of those defendants

denied him the opportunity to participate in or benefit from its services, programs, or activities,

or has otherwise discriminated against him, by reason of his disability, especially when, at least

as to Acacia, he appears to have specifically agreed not to receive such services. Thus, Plaintiff

has failed to state a claim of discrimination under the Rehabilitation Act against Acacia, the

NYSOMH, the City of New York, and 1412 College Avenue LLC, and the Court dismisses those

claims against those defendants for that reason. See § 1915(e)(2)(B)(ii).

The Court, however, grants Plaintiff leave to file an amended complaint in which he

alleges facts sufficient to state a claim of discrimination against Acacia, the NYSOMH, the City

of New York, or 1412 College Avenue LLC under the Rehabilitation Act.

Claims of retaliation under the Rehabilitation Act against Acacia, the

NYSOMH, the City of New York, and 1412 College Avenue LLC

To the extent that Plaintiff asserts claims of retaliation under the Rehabilitation Act

against Acacia, the NYSOMH, the City of New York, and 1412 College Avenue LLC, the Court

must dismiss those claims. To state such a claim, a plaintiff must allege, similar to a claim of

retaliation under the FHA, that: “(i) [the] plaintiff was engaged in protected activity; (ii) the

alleged retaliator knew that [the] plaintiff was involved in protected activity; (iii) an adverse

decision or course of action was taken against [the] plaintiff; and (iv) a causal connection exists

between the protected activity and the adverse action.” Natofsky, 921 F.3d at 353 (internal

quotation marks and citation omitted). In this context, “[w]ith respect to causation, a plaintiff

must prove ‘that “but for” the disability, the adverse action would not have been taken.’” Tafolla

v. Heilig, 80 F.4th 111, 125 (2d Cir. 2023) (quoting Natofsky, 921 F.3d at 347). In addition, as

§ 1915(e)(2)(B)(ii), but construes Plaintiff’s claims against APS as brought against the City of

New York.

with a discrimination claim brought under this statute, the plaintiff must show that the defendant

is either a federal executive agency or the USPS, or receives federal funding. Daly v. Westchester

Cnty. Bd. Of Legislators, No. 19-CV-4642 (PMH), 2023 WL 4896801, at *4, 7-8 (S.D.N.Y. Aug.

1, 2023), appeal pending, No. 23-1220 (2d Cir.); see § 794(a).

Even assuming that Acacia, the NYSOMH, the City of New York, and 1412 College

Avenue LLC receive federal funding; that Plaintiff engaged activity protected by the

Rehabilitation Act; and that these defendants were aware of this activity; for the reasons

discussed above as to Plaintiff’s claims of retaliation under the FHA, the Court concludes that

Plaintiff does not allege facts sufficient to show that he suffered an adverse action by any of

these defendants and that there was a causal connection between the adverse action and the

protected activity. The Court therefore dismisses Plaintiff’s these claims of retaliation under the

Rehabilitation Act for failure to state a claim on which relief may be granted, see

§ 1915(e)(2)(B)(ii), but grants Plaintiff leave to replead these claims against these defendants in

an amended complaint in which he alleges facts sufficient to state such a claim.

D. Claims under Title II of the ADA

Claims of discrimination under Title II of the ADA against the NYSOMH

and the City of New York

Title II of the ADA forbids discrimination against persons with disabilities in, among

other areas of public life, public services, programs, and activities. Tennessee v. Lane, 541 U.S.

509, 516-17 (2004). It provides 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 subjected to discrimination by any such entity.”12

12 Under the ADA, a “public entity” includes “(A) any State or local government; [and]

(B) any department, agency, special purpose district, or other instrumentality of a State or States

or local government.” 42 U.S.C. § 12131(1)(A)-(B). The NYSOMH, APS, and the City of New

42 U.S.C. § 12132. The standard to state a claim of discrimination under Title II of the ADA is

the same as the standard to state a claim of discrimination under the Rehabilitation Act, though

without the additional requirement that the defendant must be a federal executive agency or the

USPS, or receive federal funding. See Shomo, 579 F.3d at 185; Henrietta D., 331 F.3d at 272.

For the reasons discussed above as to Plaintiff’s claims of discrimination under the

Rehabilitation Act against the NYSOMH and the City of New York, the Court dismisses

Plaintiff’s claims of discrimination under Title II of the ADA against these defendants for failure

to state a claim on which relief may be granted. See § 1915(e)(2)(B)(ii). As above, the Court

grants Plaintiff leave to replead these claims in an amended complaint in which he alleges facts

sufficient to state such a claim against these defendants.13

Claims of retaliation under the ADA against the NYSOMH and the City of

New York

The Court must dismiss Plaintiff’s claims of retaliation under the ADA against the

NYSOMH and the City of New York. The ADA’s antiretaliation provision provides that “[n]o

person shall discriminate against any individual because such individual has opposed any act or

practice made unlawful [under the ADA] or because such individual made a charge, testified,

assisted, or participated in any manner in an investigation, proceeding, or hearing under [the

ADA].” 42 U.S.C. § 12203(a). The pleading requirements for a claim of retaliation under the

York are public entities for the purposes of the ADA. See id.; Anthony v. City of New York, 339

F.3d 129, 141 n.8 (2d Cir. 2003) (City of New York); Matagrano, 2020 WL 7338586, at *12

(OMH).

13 “[I]f a plaintiff cannot state a Title II [ADA] claim [against a state agency], the court’s

[Eleventh Amendment] sovereign immunity inquiry is at an end.” Mary Jo C. v. N.Y. State &

Local Ret. Sys., 707 F.3d 144, 152 (2d Cir. 2013). Thus, if Plaintiff fails to state a claim of

discrimination against the NYSOMH, it appears that such a claim is also precluded by Eleventh

Amendment sovereign immunity. See id. (quoting United States v. Georgia, 546 U.S. 151, 159

(2006)).

ADA are the same as those for claims of retaliation under the FHA and the Rehabilitation Act

(without the requirement that the defendant be a federal executive agency or the USPS, or

receive federal funding). See Tafolla, 80 F.4th at 125-26; Natofsky, 921 F.3d at 353; Currytto v.

Doe, No. 3:18-CV-1392, 2019 WL 2062432, at *8 (D. Conn. May 9, 2019) (“The same standards

apply to a claim of retaliation under . . . the Rehabilitation Act as under the ADA.” (citing

Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002))). For the same reasons that the

Court dismissed Plaintiff’s claims of retaliation under the FHA and the Rehabilitation Act, the

Court dismisses Plaintiff’s ADA claims of retaliation against the NYSOMH14 and the City of

New York, for failure to state a claim on relief may be granted. See § 1915(e)(2)(B)(ii). The

Court, however, grants Plaintiff leave to replead these claims against these defendants in an

amended complaint in which he alleges facts sufficient to state a such a claim against these

defendants.

E. Claims of federal constitutional violations under 42 U.S.C. § 1983 against the City of

New York, Benatar, and Glenoy

The City of New York

As discussed above, the Court construes Plaintiff’s claims of federal constitutional

violations brought under 42 U.S.C. § 1983 against APS as brought against the City of New York.

See supra note 11. When a plaintiff sues a municipality, like the City of New York, under

Section 1983, it is not enough for the plaintiff to allege that one of the municipality’s employees

14 “The law is not presently settled on the issue of whether Congress validly abrogated

[Eleventh Amendment] sovereign immunity for retaliation claims under [the ADA] when such

claims are predicated on . . . claims [under Title II of the ADA].” Puccinelli v. S. Conn. State

Univ., No. 3:21-CV-0763, 2023 WL 4838291, at *6 n.8 (D. Conn. July 28, 2023); Constantine v.

Merola, No. 1:20-CV-1012, 2020 WL 8450544, at *5 n.8 (N.D.N.Y. Nov. 6, 2020), report &

recommendation adopted sub nom., Constantine v. NYS Deaf Cmty., 2021 WL 392487

(N.D.N.Y. Feb. 4, 2021).

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. Dept 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 claim

under Section 1983 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. Jones v. Town of East Haven, 691

F.3d 72, 80 (2d Cir. 2012); see Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397,

403 (1997) (internal citations omitted).

Plaintiff alleges no facts showing that a policy, custom, or practice of the City of New

York contributed to the violation of his federal constitutional rights. The Court therefore

dismisses Plaintiff’s claims under Section 1983 against the City of New York for failure to state

a claim on which relief may be granted, see § 1915(e)(2)(B)(ii), but grants Plaintiff leave to

replead these claims against the City of New York in an amended complaint.

Benatar and Glenoy

To the extent that Plaintiff asserts claims under Section 1983 against Benatar, who

appears to be the Deputy Director of Housing at the NYSOMH, and Glenoy, whom Plaintiff

describes as an “APS Senior Supervisor,” the Court must dismiss those claims. To state a claim

under Section 1983 against individual state actors, such as Benatar and Glenoy, a plaintiff must

allege facts showing that those individuals were directly and personally involved in an alleged

constitutional deprivation. See Spavone v. N.Y. State Dep’t of Corr. Serv., 719 F.3d 127, 135 (2d

Cir. 2013) (“It is well settled in this Circuit that personal involvement of defendants in the

alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.”

(internal quotation marks omitted)). An individual state actor defendant may not be held liable

under Section 1983 solely because that individual employs or supervises a person who violated

the plaintiff’s rights. See Iqbal, 556 U.S. at 676 (“Government officials may not be held liable

for the unconstitutional conduct of their subordinates under a theory of respondeat superior.”).

Rather, “[t]o hold a state official liable under § 1983, a plaintiff must plead and prove the

elements of the underlying constitutional violation directly against the official[.]” Tangreti v.

Bachmann, 983 F.3d 609, 620 (2d Cir. 2020).

Plaintiff does not show how either Benatar or Glenoy was directly and personally

involved with the alleged violations of his federal constitutional rights.15 The Court therefore

dismisses Plaintiff’s claims under Section 1983 against Benatar and Glenoy, for failure to state a

claim on which relief may be granted. See § 1915(e)(2)(B)(ii). The Court, however, grants

Plaintiff leave to amend his complaint to name as defendants those individual state actors who

were directly and personally involved in the alleged violations of federal constitutional rights and

to allege facts showing how those individuals were each personally and directly involved in

those alleged violations.16

15 Plaintiff alleges that “[t]he APS Defendants[,] while acting under the color of law[,]

came to [his] home . . . and were asked to leave numerous times by . . . [him]; . . . [he] protested

the misconduct of the APS Defendants by exposing their misconduct on various platforms[,]

including You[T]ube.” (ECF 1, at 10.) He also alleges that his actions “prompted the APS

Defendants to take retaliatory action against . . . [him] by attempting to wrongfully hospitalize

. . . [him].” (Id.) Plaintiff has attached to his complaint a copy of a February 2, 2024 email that he

sent to members of the NYPD and others, including other New York City and New York State-

agency officials, in which he asserts that, one day previous, on February 1, 2024, “[a] false

police report was made . . . by [an] [u]nknown individual accompanied by APS-Ms. Ajayi and

unknown 2 males came without [n]otice in which [they were] required to do by law.” (Id. at 33.)

As to the alleged actions of APS officials, however, Plaintiff alleges nothing about Glenoy.

16 If Plaintiff does not know the name of an individual defendant, he may refer to that

individual as “John Doe” or “Jane Doe,” with descriptive information, in both the caption and

First Amendment retaliation

Plaintiff seems to allege that individual APS officials retaliated against him for posting

his previous interactions with them on the internet, including on YouTube, by attempting to

involuntarily hospitalize him. The Court understands such allegations as asserting First

Amendment retaliation claims under Section 1983. To state such a claim, a private citizen must

allege that: “(1) he has an interest protected by the First Amendment; (2) [the] defendants’

actions were motivated or substantially caused by his exercise of that right; and (3) [the]

defendants’ actions effectively chilled the exercise of his First Amendment right.” Curley v.

Village of Suffern, 268 F.3d 65, 73 (2d Cir. 2001); see Williams v. Town of Greenburgh, 535

F.3d 71, 76 (2d Cir. 2008) (“Regardless of the factual context, [courts] have required a plaintiff

alleging retaliation to establish speech protected by the First Amendment.”).

The Court assumes, for the purposes of this order, that Plaintiff’s alleged posting of his

previous interactions with APS officials on YouTube and/or on other internet platforms is

protected by the First Amendment. Plaintiff, who does not allege that he was actually

hospitalized as result of the actions of APS officials, does not allege facts sufficient to show that

any APS official’s actions was motivated or was substantially caused by the abovementioned

exercise of his First Amendment rights. In addition, Plaintiff does not allege facts showing that

the APS officials’ actions chilled the exercise of his abovementioned First Amendment rights.

Accordingly, the Court dismisses these claims for failure to state a claim on which relief may be

the body of the amended complaint. The naming of “John Doe” or “Jane Doe” defendants,

however, does not toll the three-year limitations period governing Plaintiff’s claims under

Section 1983, and Plaintiff shall be responsible for ascertaining the true identity of any “John

Doe” or “Jane Doe” defendants and amending his complaint to include the identity of any “John

Doe” or “Jane Doe” defendants before the applicable limitations period expires.

granted, see § 1915(e)(2)(B)(ii), but grants Plaintiff leave to file an amended complaint in which

he alleges sufficient facts to state such a claim.

F. Claims under state law

A federal district court may decline to exercise supplemental jurisdiction of claims under

state law when it “has dismissed all claims over which it has original jurisdiction.” 28 U.S.C.

§ 1367(c)(3). Generally, “when the federal-law claims have dropped out of the lawsuit in its

early stages and only state-law claims remain, the federal court should decline the exercise of

jurisdiction.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988) (footnote omitted).

Having dismissed those of Plaintiff’s claims of which the Court has original subject matter

jurisdiction, the Court declines to exercise its supplemental jurisdiction of any of his claims

under state law. See Kolari v. New York-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006)

(“Subsection (c) of § 1367 ‘confirms the discretionary nature of supplemental jurisdiction by

enumerating the circumstances in which district courts can refuse its exercise.’” (quoting City of

Chicago v. Int’l Coll. of Surgeons, 522 U.S. 156, 173 (1997))).

LEAVE TO AMEND GRANTED

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 United States Court of

Appeals for 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)).

Because Plaintiff may be able to allege additional facts to state a valid claim under the FHA, the

Rehabilitation Act, the ADA, or 42 U.S.C. § 1983, the Court grants Plaintiff 30 days’ leave to

file an amended complaint to detail those claims, as specified above.

If Plaintiff does not file an amended complaint within the time allowed, the Court will

direct the Clerk of Court to enter a judgment dismissing this action for the reasons set forth in

this order.

CONCLUSION

The Court dismisses this action for the reasons set forth in this order. The Court,

however, grants Plaintiff 30 days’ leave to file an amended complaint, as specified in this order.

If Plaintiff files an amended complaint within the time allowed, or fails to show cause as to such

failure, the Court will direct the Clerk of Court to enter a judgment dismissing this action for the

reasons set forth in this order.

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. See

Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

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

judgment is entered.

SO ORDERED.

Dated: April 15, 2024

New York, New York

/s/ Laura Taylor Swain

LAURA TAYLOR SWAIN

Chief United States District Judge