Arrington v. MZ 2640 Owner LLP

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

KELVIN ARRINGTON; SHANTA GREEN,

Plaintiffs,

24-CV-2528 (LTS)

-against-

MZ 2640 OWNER LLP; DESIREE PARKEY; ORDER OF DISMISSAL

MZ HOUSING DEVELOPMENT OF FUND WITH LEAVE TO REPLEAD

CO.,

Defendants.

LAURA TAYLOR SWAIN, Chief United States District Judge:

Plaintiff Kelvin Arrington, who is appearing pro se, brings this action invoking the

Americans with Disabilities Act (ADA) and the False Claims Act.1 He also brings state law

claims for defamation and harassment. Plaintiff alleges that Defendants brought a state court

eviction proceeding against him, in which they falsely asserted that his subsidized apartment was

not his primary residence and that Shanta Green was operating a day care business in the unit.

By order dated April 5, 2024, the Court granted Plaintiff’s request to proceed in forma

pauperis, that is, without prepayment of fees. For the reasons set forth below, the Court

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

complaint.

STANDARD OF REVIEW

The Court must dismiss an in forma pauperis 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);

1 Because the Court below dismisses Shanta Green, who has not signed the complaint, the

Court refers to Kelvin Arrington as Plaintiff in this action.

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 Kelvin Arrington rents a subsidized apartment at 2640 Frederick Douglas

Boulevard #6B in Manhattan.2 Defendants MZ 2640 Owner L.P. and MZ Housing Development

Fund Co. own the property, which is described as a “project-based Section 8 apartment.” (ECF 1

at 12, 26.) The property manager, Desiree Pankey, “constantly badgered” Plaintiff (id. at 5, 27),

and Plaintiff “was accused” of allowing Shanta Green to operate a daycare business illegally in

the apartment. (Id.) Plaintiff states that Defendants are aware that he “is disabled and receive[s]

Social Security.” (Id. at 6.)

In March 2023, Defendants filed suit in Housing Court, in which they alleged, among

other things, that Plaintiff’s primary residence was in New Jersey. (Id. at 17.) A neighboring

tenant in the building “testified to lies.”3 Plaintiff attaches what appears to be a February 22,

2024 decision from the Housing Court, which states that the property owners had not adduced

sufficient evidence to prove either (1) that Green resided in Plaintiff’s apartment and failed to

report her earned income, or (2) that Plaintiff “did not live in the subject premises.” (Id. at 31.)

Plaintiff contends that his “unpaid rent [was] satisfied during the judicial process.” (Id. at

6.) He seeks “compensatory & punitive damages for defamation & harassment.” (Id.) He also

seeks to reinstate his “subsdidies for [the] disabled” and to be relocated to an apartment with a

walk-in shower. (Id. at 6.) He invokes the ADA and the False Claims Act, as well as state law.

2 According to Plaintiff, his monthly rent is $291.00.

3 Plaintiff attaches to the complaint a decision of the Housing Court stating that a

neighbor testified that “she sees parents dropping kids off at 8:30 or 9 and picking them up at

3:30 or 4.” (Id. at 29.)

DISCUSSION

A. Shanta Green

Shanta Green is listed as a co-plaintiff in the caption of the complaint but only Plaintiff

Kelvin Arrington has signed the complaint. As a nonlawyer, Plaintiff can only represent his own

interests. See 28 U.S.C. § 1654; U.S. ex rel. Mergent Servs. v. Flaherty, 540 F.3d 89, 92 (2d Cir.

2008) (“[A]n individual who is not licensed as an attorney may not appear on another person’s

behalf in the other’s cause.”) (internal quotation marks and citation omitted); Eagle Assocs. v.

Bank of Montreal, 926 F.2d 1305, 1308 (2d Cir. 1991)) (noting that § 1654 “allow[s] two types

of representation: ‘that by an attorney admitted to the practice of law by a governmental

regulatory body, and that by a person representing himself’”). The Court therefore dismisses

without prejudice any claims Plaintiff is asserting on behalf of Green. If Plaintiff chooses to file

an amended complaint, he should list himself as the sole Plaintiff unless Green also chooses to

pursue any claims that she may have arising from the same facts and signs the amended

complaint.

B. Americans with Disabilities Act

Plaintiff invokes the ADA as the basis for his claims. The ADA consists of three parts:

Title I, 42 U.S.C. § 12111 et seq., which prohibits discrimination in employment; Title II, 42

U.S.C. § 12131 et seq., which prohibits discrimination by public entities, such as state and local

governments; and Title III, 42 U.S.C. § 12181 et seq., which prohibits discrimination in access to

public accommodations operated by private entities. PGA Tour, Inc. v. Martin, 532 U.S. 661,

675 (2001).

For purposes of Title III of the ADA, public accommodations are defined to include,

among other things, “any inn, hotel, motel, or other establishment which provides lodging to

transient guests.” 42 U.S.C. § 2000a. Residential housing does not qualify as a public

accommodation. 42 U.S.C. § 2000a(b); Reid v. Zackenbaum, No. 05-CV-1569 (FB), 2005 WL

1993394, at *4 (E.D.N.Y. Aug. 17, 2005) (“A residential facility, such as an apartment, is not a

public accommodation under the ADA.”). Plaintiff’s ADA claims against two private entities,

MZ Housing Development Fund Company, Inc., and MZ 2640 Owner LLP, relate to his

residential apartment. Because an apartment is not a public accommodation, Plaintiff’s

allegations fail to state a claim against these Defendants under Title III of the ADA.

Title II of the ADA, which prohibits discrimination by public entities, covers some public

housing, such as housing provided by the New York City Housing Authority. See Reid, 2005 WL

1993394, at *4. Plaintiff, however, does not allege that a public entity provides his housing, and

his ADA claims are asserted against private entities. Plaintiff’s allegations are therefore

insufficient to state a claim that a public entity discriminated against him in violation of Title II

of the ADA. The Court therefore dismisses Plaintiff’s ADA claims for failure to state a claim on

which relief can be granted. 28 U.S.C. § 1915(e)(2)(B)(ii)

C. False Claims Act

Plaintiff alleges that Defendants made false allegations against him in state court

proceedings related to his housing. On this basis, he invokes the False Claims Act (FCA). The

FCA imposes civil liability on a person who, among other things, knowingly presents, or causes

to be presented, to an officer or employee of the federal government, a false or fraudulent claim

for payment or approval. 31 U.S.C. § 3729(a). Where there has been such fraud on the federal

government, the United States or a private party may bring a civil action. 31 U.S.C. § 3730(a),

(b)(1). “A private enforcement action under the FCA is called a qui tam action, with the private

party referred to as the ‘relator.’” U.S. ex rel. Eisenstein v. City of New York, New York, 556 U.S.

928, 93 (2009) (citing Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529

U.S. 765, 769 (2000)).4

A qui tam action under the FCA is brought for and in the name of the United States,

which remains the real party in interest. See, e.g., United States ex rel. Eisenstein v. City of New

York, 540 F.3d 94, 101 (2d Cir. 2008) (holding that in qui tam actions, “relators have standing to

sue not as agents of the United States, but as partial-assignees of the United States’ claim to

recovery”). A litigant can proceed pro se, however, only when bringing his own case. See

Flaherty, 540 F.3d at 92 (“[A]n individual who is not licensed as an attorney may not appear on

another person’s behalf in the other’s cause.”) (internal quotation marks and citation omitted).

“Because relators lack a personal interest in False Claims Act qui tam actions, . . . they are not

entitled to proceed pro se.” Id. at 93; see also Klein v. City of New York, No. 10-CV-9568, 2012

WL 546786, at *5 (S.D.N.Y. Feb. 21, 2012) (“[A] pro se plaintiff[] lacks standing as a relator in

a qui tam action pursuant to the FCA.”). The Court therefore dismisses Plaintiff’s claims under

the FCA because he cannot pursue such an action pro se.5

D. Supplemental State Law Claims

A district court may decline to exercise supplemental jurisdiction over state-law claims

when it “has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3).

4 When a relator initiates such an action, the United States is given 60 days to review the

claim and decide whether it will “elect to intervene and proceed with the action,” 31 U.S.C.

§§ 3730(b)(2), (b)(4); see also 31 U.S.C. § 3730(c)(3) (permitting the United States to intervene

even after the expiration of the 60–day period “upon a showing of good cause”). If the United

States intervenes, the relator has “the right to continue as a party to the action,” but the United

States acquires the “primary responsibility for prosecuting the action.” § 3730(c)(1). If the

United States declines to intervene, the relator retains “the right to conduct the action.”

§ 3730(c)(3). The United States is thereafter limited to exercising only specific rights during the

proceeding.

5 Plaintiff’s FCA claim is also subject to dismissal because he has not alleged any facts

suggesting that a false or fraudulent claim was submitted to the federal government for approval.

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 n.7 (1988)).

Having dismissed the federal ADA and FCA claims of which the Court has original

jurisdiction, the Court declines to exercise its supplemental jurisdiction of any state-law claims

Plaintiff may be asserting. 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). Claims for disability discrimination

in housing can arise under both the Rehabilitation Act and the Fair Housing Act.6 The Court

therefore grants Plaintiff 30 days’ leave to amend his complaint to detail his claims.

6 The Rehabilitation Act provides that “[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 . . . .” 29 U.S.C. § 794(a). The Fair Housing Act

provides that it is unlawful to “discriminate in the sale or rental, or to otherwise make unavailable or

deny, a dwelling to any buyer or renter because of a handicap of ... that buyer or renter.” 42 U.S.C.

§ 3604(f)(1). Plaintiff does not allege any facts about his disability or facts suggesting that

Defendants brought the holdover action because of his disability, and the Court therefore declines to

construe Plaintiff’s allegations as giving rise to claims under these statutes.

Plaintiff mentions in passing that he seeks an accommodation for his disability (namely, a

walk-in shower), but he does not plead any facts showing that he requested such an

accommodation. The Court thus grants Plaintiff leave to amend to replead claims of disability

discrimination in violation of federal law in connection with his housing.

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

direct the Clerk of Court to enter judgment in this action.

CONCLUSION

The Court dismisses Plaintiff’s federal claims, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii),

with 30 days’ leave to replead. The Court declines, under 28 U.S.C. § 1367(c)(3), to exercise

supplemental jurisdiction of any state law claims.

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: July 8, 2024

New York, New York

/s/ Laura Taylor Swain

LAURA TAYLOR SWAIN

Chief United States District Judge