# Moore v. Capital Realty Group, Inc.

> District Court, W.D. New York · July 24, 2023

URL: https://www.frixlaw.com/law-library/cases/10366303

## Case

- **Court:** District Court, W.D. New York
- **Decided:** July 24, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
______________________________________

JERRY W. MOORE,
DECISION
Plaintiff, and
v. ORDER

CAPITAL REALTY GROUP, INC., 21-CV-1099LGF
NAME-UNKNOWN OWNER(S) OF ST. JOHN
TOWERS APTS, (consent)
FELICIA PRYOR,
U.S. Department of Housing and Urban
Development, and
MARCIA FUDGE, Secretary of U.S. Department
of Housing and Urban Development,

Defendants.
______________________________________

APPEARANCES: JERRY W. MOORE, Pro se
865 Michigan Avenue
Apt. 313
Buffalo, New York 14203-1248

THE LAW OFFICE OF COLLEEN KILLIAN
Attorneys for Defendants Capital Realty Group, Owners of
St. John Towers Apts., and Felicia Pryor
COLLEEN MARY KILLIAN, of Counsel
43 Court Street
Suite 930
Buffalo, New York 14202

TRINI E. ROSS
UNITED STATES ATTORNEY
Attorney for Defendants U.S. Dept. of Hous. & Urban
Development and Fudge
DANIEL BARRIE MOAR
Assistant United States Attorney, of Counsel
Federal Centre
138 Delaware Avenue
Buffalo, New York 14202
JURISDICTION

On June 7, 2023, the parties to this action consented, pursuant to 28 U.S.C.
§ 636(c), to proceed before the undersigned. The matter is presently before the court
on Plaintiff’s motion for a preliminary injunction (Dkt. 51), filed June 20, 2023.

BACKGROUND and FACTS1

Plaintiff Jerry W. Moore (“Plaintiff”), proceeding pro se, commenced this civil
rights class action on October 7, 2021, asserting claims under the Americans with
Disabilities Act of 1990 (“ADA”), Section 504 of the Rehabilitation Act of 1973 (“Section
504” or “the Rehabilitation Act”), and the Fair Housing Act of 1968 (“FHA”) against
Defendants Capital Realty Group, Inc. (“Capital Realty”), the entity that manages St.
John Tower Apartments (“St. John Apartments”), the unknown owner of St. John
Apartments, Felicia Pryor, St. John Apartments’ property manager (“Pryor”) (together,
“St. John Defendants”), and the United States Department of Housing and Urban
Development (“HUD”) (together, “Defendants”). Plaintiff, who is a “‘qualified individual
with a 100% Total and Permanent Disability’ and confined to a wheel chair,” Complaint
¶¶ 3, 8, lives in a HUD-subsidized housing unit (“apartment”) at St. John Apartments
pursuant to a written rental agreement made February 5, 2018 (“the lease agreement”),
between Plaintiff and non-party Virginia Michigan Housing Development Fund
Company, Inc. (“Virginia Michigan Housing”), for 865 Michigan Avenue, Apartment 313,
in Buffalo, New York (“the apartment”). Plaintiff essentially claims Defendants failed to
reasonably modify and maintain the St. John Apartments in a manner that

1 The Facts are taken from the Amended Complaint (Dkt. 36).
accommodates tenants with vision impairments2 and provides for wheelchair
accessibility in both the individual apartments as well as in the common areas.
In a letter dated February 22, 2022,3 Plaintiff was originally notified by Virginia
Michigan Housing that his lease was being terminated on June 30, 2022 for three

separate violations of the lease agreement, including on January 25, 2022, January 27,
2022, and February 10, 2022. Lease Termination Notice.4 Each asserted incident
involved confrontations between Plaintiff and St. John Apartments’ management, and
inappropriate questions and racial slurs directed by Plaintiff to on-site contractors. Id.
By Order filed April 7, 2022 (Dkt. 4) (“April 7, 2022 Order”), Plaintiff was allowed
to proceed in forma pauperis, April 7, 2022 Order at 1, and for purposes of screening
the pro se complaint pursuant to 28 U.S.C. §1915(e)(2), Plaintiff’s claims were found
viable except as alleged against Defendant HUD, with the claims dismissed with regard
to HUD against whom no ADA claim could be asserted and the claims pertaining to
HUD’s failure to investigate the alleged FHA violations at St. John Apartments were not

viable, and Plaintiff was granted leave to file an amended complaint. On April 11, 2022,
Plaintiff filed his first motion for preliminary injunction (Dkt. 5) (“First PI Motion”), seeking
to stop Defendants from evicting, pending the outcome of Plaintiff’s claims, him at that
time. On April 19, 2022, Plaintiff filed an Amended Complaint (Dkt. 7) (“First Amended
Complaint”), asserting essentially the same claims as alleged in the original Complaint
against the same Defendants, but adding in the Prayer for Relief a request that the

2 Plaintiff does not allege that he is blind or has impaired vision.
3 The letter’s actual date of February 22, 2021, appears to be a typographical error given that the letter
purports to be providing Plaintiff with 90-days notice that his lease was being terminated effective June
30, 2022.
4 Dkt. 5 at 8-9.
court enjoin any eviction proceedings “as retaliatory and discriminatory.” First Amended
Complaint, Prayer for Relief ¶ 2.e.
On June 8, 2022, Plaintiff filed his second motion for preliminary injunction (Dkt.
12) (“Second PI Motion”), seeking to enjoin Defendants from installing new sliding patio

doors to the apartment’s balcony which Plaintiff maintained were not compatible with
the use of a wheelchair and thus would prevent Plaintiff from using the balcony to his
apartment. On June 27, 2022, Plaintiff moved for leave to file a second amended
complaint (Dkt. 17).
In a Decision and Order filed June 30, 2022 (Dkt. 18) (“June 30, 2022 D&O”),
District Judge Lawrence J. Vilardo denied Plaintiff’s First and Second PI Motions
because Plaintiff failed to make the necessary showing of irreparable harm including
that he would be homeless, June 30, 2022 D&O at 6, and also failed to demonstrate
that the new patio doors were any different that the current patio doors in the apartment
that were to be replaced. Id. at 7-8. On August 10, 2022, at Plaintiff’s request (Dkt. 21),

the Clerk of Court entered default on the First Amended Complaint against St. John
Defendants (Dkt. 21) (“Entry of Default”). St. John Defendants’ answer to the Second
Amended Complaint was filed August 11, 2022 (Dkt. 24).5 On August 17, 2022, Plaintiff
moved for default judgment (Dkt. 25), and on August 18, 2022, St. John Defendants
moved to vacate Entry of Default (Dkt. 26). On September 6, 2022, Plaintiff moved for
appointment of counsel (Dkt. 31). Plaintiff moved for class certification on September 6,
2022 (Dkt. 32), and on September 26, 2022 (Dkt. 34). On January 11, 2023, District
Judge Vilardo, inter alia, denied Plaintiff’s motions for class action certification and to

5 The court notes that as of August 11, 2022, the Second Amended Complaint had yet to be filed, nor had
the court granted Plaintiff leave to file the Second Amended Complaint.
appoint counsel, and granted St. John Defendants’ motion to vacate Entry of Default
and Plaintiff’s motion to file a second amended complaint, and the Second Amended
Complaint was filed, backdated to June 27, 2022 (Dkt. 36).6 As with the original and
First Amended Complaints, the Second Amended Complaint is styled as a class action7

and asserts the same claims as the original and First Amended Complaint, but adds
HUD Secretary Marcia Fudge (“Fudge”) as a Defendant, and clarifies that Capital Realty
and the unknown owners of St. John Apartments have been the same entity since
August 2019.8 Second Amended Complaint ¶ 5. In particular, Plaintiff alleges
violations of federal housing laws including, inter alia, there are several features
rendering the residential units (“apartments”) inaccessible to persons with disabilities
including excessively high thresholds at the front and rear door entrances, numerous
features of the apartments do not accommodate wheelchairs including, for example,
insufficient room in the bathrooms and kitchens, and mailboxes not properly located for
access by a wheelchair confined tenant, Defendants replaced the “Emergency Pull-

Cord and Emergency Annunciator and Alarm System” in all St. John Apartments,
including Plaintiff’s apartment, Second Amended Complaint ¶¶ 5, with “mini-transmitter
necklace[s]” that are “unreliable” and not water resistant, and fail to properly function in
inclement weather, there are no “sound devices” to assist blind tenants with moving
about the apartments, and that despite complaints by Plaintiff and other tenants,
Defendants have not corrected the violations.

6 It is not clear from the record why the Second Amended Complaint’s filing was backdated.
7 The court notes that in the January 11, 2023 Order, Plaintiff’s class certification request was denied
because a pro se plaintiff may not act as a representative of a class. Dkt. 35 at 10-11 (citing Ramos v.
Wolf, 2021 WL 2355106, at * 1 (W.D.N.Y. June 9, 2021)).
8 St. John Defendants admit this allegation. See Answer to the Second Amended Complaint ¶ 1.
In a Petition dated May 6, 2023 and filed in Buffalo City Court (“Buffalo City
Court”) on June 23, 2023 (Dkt. 54-1) (“Petition”), Virginia Michigan Housing sought to
have Plaintiff evicted from his apartment as a holdover tenant based on the termination
of Plaintiff’s lease on June 30, 2022 for violations of the lease agreement with regard to

the same confrontations between Plaintiff and the St. John Apartments management,
and inappropriate questions and racial slurs directed by Plaintiff to on-site contractors
as stated in the February 22, 2022 Lease Termination Notice (“eviction proceedings”).9
On May 23, 2023, Defendant Fudge moved to dismiss the Second Amended Complaint
as against HUD (Dkt. 43).
On June 20, 2023, while Fudge’s motion was pending, Plaintiff filed the instant
motion (Dkt. 51) (“Plaintiffs’ Motion”) seeking a preliminary injunction to stop Capital
Realty, Pryor, and non-party Virginia Michigan Housing from evicting Plaintiff from his
apartment. On June 29, 2023, St. John Defendants filed the Response in Opposition to
Plaintiff(s)’ Motion for Preliminary Injunction (Dkt. 54) (“St. John Defendants’

Response”), attaching as an exhibit (Dkt. 54-1) a copy of the Petition filed in Buffalo City
Court. Plaintiff has not filed any papers in further support of the motion.
Based on the following, Plaintiff’s Motion is DENIED.

DISCUSSION

“‘A preliminary injunction is an extraordinary remedy never awarded as of right.’”
JTH Tax, LLC v. Agnant, 62 F.4th 658, 666–67 (2d Cir. 2023) (quoting Winter v. Nat.
Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). “‘A plaintiff seeking a preliminary

9 There is no explanation in the record as to why the eviction proceedings, which rely on the February 20,
2022 Lease Termination Notice, were not commenced earlier.
injunction must establish that he is likely to succeed on the merits, that he is likely to
suffer irreparable harm in the absence of preliminary relief, [and] that the balance of
equities tips in his favor . . ..’” Id. at 667 (quoting Winter, 555 U.S. at 20).10 Whether to
grant a preliminary injunction is committed to the discretion of the district court. Christian

Louboutin S.A. v. Yves Saint Laurent America Holdings, Inc., 696 F.3d 206, 215 (2d Cir.
2012). The requested injunctive relief also must be directed to a named party over
whom the court has personal jurisdiction. See Alibaba Grp. Holding Ltd. v. Alibabacoin
Found., 2018 WL 2022626, at *2 (S.D.NY. Apr. 30, 2018) (citing Khatib v. Alliance
Bankshares Corp., 846 F.Supp.2d 18, 25 (D.D.C. 2012) (“The cardinal principal that the
district court is ‘powerless to proceed’ in the absence of personal jurisdiction, applies
with no less force when the court is presented with motion for a preliminary injunction.”
(quoting Employers Reinsurance Corp. v. Bryant, 299 U.S. 374, 382 (1937)))). See also
In re Rationis Enterprises, Inc. of Panama, 261 F.3d 264, 270 (2d Cir. 2001) (“A court
may not grant a final, or even an interlocutory, injunction over a party over whom it does

not have personal jurisdiction.” (vacating injunction granted by district court prior to
resolving question of whether the district court had personal jurisdiction over the party
sought to be enjoined, and citing Weitzman v. Stein, 897 F.2d 653, 659 (2d Cir.1990))).
Here, it is undisputed that Virginia Michigan Housing is not a party and has not been
served in this action. Accordingly, the court lacks personal jurisdiction over Virginia
Michigan Housing against whom the court thus is unable to issue a preliminary
injunction.

10 Although not relevant in the instant case, the court notes in the interest of completeness that where the
challenged action or the proposed relief implicates the public interest, that aspect may also be
considered. Winter, 555 U.S. at 20; WPIX, Inc. v. ivi, Inc., 691 F.3d 275, 287 (2d Cir. 2012).
Further, it is critical that the requested injunctive relief relate to the allegations
contained in the underlying complaint. See Abdul-Jabbar v. West, 2009 WL 2762270,
at *9 (W.D.N.Y. Aug. 26, 2009) (citing Allen v. Brown, 1998 WL 214418, *4 (N.D.N.Y.
Apr. 28, 1998) (denying request for injunctive relief where allegations in application for

such relief were unrelated to claims asserted in the complaint and, thus, plaintiff “failed
to establish either a likelihood of succeeding on the merits of his underlying claim, or
sufficiently serious questions going to the merits of such claim and a balance of
hardships tipping decidedly toward” the plaintiff)). In the instant case, Plaintiff’s
requested injunctive relief, i.e., an order stopping Capital Realty, Pryor and Virginia
Michigan Housing, a non-party, from evicting Plaintiff, in no way relates to the merits of
the claims asserted in Plaintiff’s Second Amended Complaint alleging Defendants failed
to ensure the St. John Apartments were handicapped-accessible as required by the
ADA, Section 504, and the FHA, especially with regard to the replacement of the
emergency pull-cords with transmitter necklaces, wheelchair accessibility, and

accommodations for vision-impaired tenants. Because the requested injunctive relief,
an order enjoining the eviction proceedings against Plaintiff, is completely unrelated to
the merits of the claims and seeks to enjoin a non-party, Virginia Michigan Housing as
asserted in the Second Amended Complaint, Plaintiff’s Motion is DENIED.
Alternatively, the Anti–Injunction Act, 28 U.S.C. § 2283 (the “AIA”), bars federal
courts from granting “‘an injunction to stay proceedings in a State court except as
expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or
to protect or effectuate its judgments.’” Allen v. New York City Hous. Auth., 2010 WL
1644956, at *3 (S.D.N.Y. Apr. 20, 2010) (quoting 28 U.S.C. § 2283). The AIA “‘is an
absolute prohibition against any injunction of any state-court proceedings, unless the
injunction falls within one of the three specifically defined exceptions in the Act,’ which
are to be narrowly construed.” Id. (quoting Vendo Co. v. Lektro–Vend Corp., 433 U.S.
623, 630 (1977); and citing Chick Kam Choo v. Exxon Corp., 486 U.S. 140, 146(1988)).

Courts within the Second Circuit have repeatedly held the AIA bars a federal court from
enjoining eviction proceedings in state court. Id. (citing Bosch v. Lamattina, 2008 WL
4820247, at * 1, 8 (E.D.N.Y. Nov. 4, 2008) (ruling that AIA barred federal district court
from staying state-court eviction proceedings against the plaintiff), O'Neill v. Hernandez,
2008 WL 2963634, at *1 (S.D.N.Y. Aug. 1, 2008) (finding the AIA “bars this Court from
enjoining Plaintiff's eviction proceedings.”), and Baumgarten v. County of Suffolk, 2007
WL 1490482, at *3–5 (E.D.N.Y. May 15, 2007) (denying the plaintiff's request for a
preliminary injunction because the AIA barred the court from disturbing the eviction
proceedings against the plaintiff)). Nor is the injunctive relief sought by Plaintiff within
one of the three exceptions to the AIA.

Specifically, the first exception, “as expressly authorized by Act of Congress,” 28
U.S.C. § 2283, “only applies when Congress has enacted a statute that ‘create[s] a
specific and uniquely federal right or remedy, enforceable in a federal court of equity,
that could be frustrated if the federal court were not empowered to enjoin a state court
proceeding.’” Allen v. New York City Housing Auth., 2010 WL 1644956, at *3 (quoting
Mitchum v. Foster, 407 U.S. 225, 237 (1972)). Here, each of the statutes on which
Plaintiff here relies, i.e., the ADA, the Rehabilitation Act, and the FHA, may be
enforceable in both state and federal courts. See Duran v. County of Monroe, 2019 WL
6464279, at * 3 (W.D.N.Y. Dec. 2, 2019) (observing the plaintiff could have brought
ADA and Rehabilitation Act claims in either federal or state court), Sierra v. City of New
York, 528 F.Supp.2d 465, 468 (S.D.N.Y. 2008) (FHA “is expressly enforceable in both
state and federal courts,” (citing 42 U.S.C. § 3613(a)(1)(A)), and Barnes v. Royal Health
Care LLC, 2008 WL 11474967, at * 4 (S.D.N.Y. Sep. 25, 2008) (finding state courts

have concurrent jurisdiction over ADA claims). Accordingly, the first exception is
inapplicable.
The second exception providing for injunctive relief “where necessary in aid of
[the federal court's] jurisdiction,” 28 U.S.C. § 2283, is only triggered “if ‘some federal
injunctive relief may be necessary to prevent a state court from so interfering with a
federal court's consideration or disposition of a case as to seriously impair the federal
court's flexibility and authority to decide that case,’” Allen, 2010 WL 1644956, at *4
(citing Atl. Coast Line R.R. Co. v. Brotherhood of Locomotive Eng'rs, 398 U.S. 281, 295
(1970)). Here, Plaintiff may raise his claims that Defendants violated the ADA, the
Rehabilitation Act, and the FHA as affirmative defenses to the eviction proceedings.

See Kristopher v. Stone Street Properties, LLC, 2013 WL 499752, at * 4 (S.D.N.Y. Jan.
29, 2013) (citing N.Y. Real. Prop. Acts. § 743 (providing an answer to a petition in an
eviction proceeding “may contain any legal or equitable defense, or counterclaim”)).
Further, even if the Buffalo City Court severs such affirmative defenses, because the
defenses, as severed claims, would still be litigated in the state court, “‘the possibility of
severance therefore has no effect on the Anti-Injunction Act analysis.’” Id. (quoting
Sierra, 528 F.Supp.2d at 469 n. 1)). Therefore, AIA’s second exception does not apply
here.
The third exception to the Act, i.e., “to protect or effectuate [the federal court's]
judgments,” 28 U.S.C. § 2283, “only applies where an issue has been previously
presented to and decided by the federal court. Allen, 2010 WL 1644956, at * 4 (citing
MLE Realty Assocs. v. Handler, 192 F.3d 259, 261-62 (2d Cir.1999)). Because none of

Plaintiff’s claims have previously been presented to and decided by this court, the third
exception for the AIA is inapplicable here.
Accordingly, as none of the three exceptions to the AIA applies in the instant
case, the AIA bars this court from granting the injunctive relief Plaintiff seeks,
specifically, an order enjoining the eviction proceedings in Buffalo City Court.
In the interest of completeness, the court further addressed that the Second
Amended Complaint, although filed on June 27, 2022, i.e., after the February 22, 2022
Notice, is devoid of any mention of the eviction proceedings by Capital Realty, Pryor,
and Virginia Michigan Housing, in the Second Amended Complaint’s Prayer for Relief,
Plaintiff requests an order “[e]njoin[ing] Defendants from Termination of Tenancy of

Plaintiff and Eviction proceedings as retaliatory and discriminatory,” Second Amended
Complaint, Prayer for Relief, ¶2.e, which, if pleaded as a claim for relief, could, under
specific circumstances, be liberally construed to allege a First Amendment retaliation
claim pursuant to 42 U.S.C. § 1983 (“§ 1983),11 see Greer v. Mehiel, 2016 WL 828128,
at *4 (S.D.N.Y. Feb. 24, 2016), which would not be barred by the AIA. Id. (a retaliatory
eviction proceeding raises a First Amendment issue not barred by the AIA if the plaintiff

11 The Supreme Court has instructed that the pleadings and papers of pro se litigants are to be liberally
construed. See Boykin v. KeyCorp., 521 F.3d 202, 213-14 (2d Cir. 2008) (“A document filed pro se is to
be liberally construed and a pro se complaint, however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by lawyers.” (quoting Erickson v. Pardus, 551 U.S. 89, 94
(2007))).
has asserted a viable § 1983 claim). Nevertheless, a § 1983 claim for deprivation of a
constitutional right is “required to show state action.” Tancredi v. Metro Life Ins. Co.,
316 F.3d 308, 312 (2d Cir. 2003).
In the instant case, Plaintiff has not alleged any facts establishing the eviction

proceedings qualify as state action, none of the St. John Defendants is alleged to be a
state actor, and Plaintiff has utterly failed to allege any facts to establish any St. John
Defendant qualifies as a state actor in one of a few limited circumstances recognized as
satisfying the state action requirement, including “(i) when the private entity performs a
traditional, exclusive public function; (ii) when the government compels the private entity
to take a particular action; or (iii) when the government acts jointly with the private
entity.” Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1928 (2019)
(citations omitted). Nor may a First Amendment retaliation claim be asserted against
HUD Defendants pursuant to Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S.
388 (1971). See Egbert v. Boule, __ U.S. __; 142 S.Ct. 1793, 1803 (2022) (refusing to

recognize Bivens remedy for First Amendment retaliation claim). Accordingly, the court
does not liberally construe the Second Amended Complaint as alleging a § 1983 First
Amendment retaliation claim which is not barred by the AIA so as to preclude a
preliminary injunction.
Plaintiff’s Motion seeking a preliminary injunction is, therefore, DENIED.
CONCLUSION

Based on the foregoing, Plaintiff’s Motion seeking an order enjoining eviction
proceedings in Buffalo City Court (Dkt. 51), is DENIED.

SO ORDERED.

/s/ Leslie G. Foschio
______________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE

DATED: July 24, 2023
Buffalo, New York

ANY APPEAL TO THE SECOND CIRCUIT COURT OF APPEALS REQUIRED BY
FEDERAL RULE OF APPELLATE PROCEDURE 3 MUST BE FILED WITH THE
CLERK OF THE DISTRICT COURT WITHIN 30 DAYS OF THE DATE OF THIS
DECISION AND ORDER, PURSUANT TO FEDERAL RULE OF APPELLATE
PROCEDURE 4(a)(1).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10366303. Public record. Not legal advice.