Ballentine

USDC SDNY

DOCUMENT

ELECTRONICALLY FILED

UNITED STATES DISTRICT COURT DOC #:

SOUTHERN DISTRICT OF NEW YORK | DATE TE

QUINTIN J. BALLENTINE,

Plaintiff, 25-CV-515 (AT) (BCM)

-against- REPORT AND RECOMMENDATION

JACOB BARAK and POST GRADUATE TO THE HON. ANALISA TORRES

CENTER FOR MENTAL HEALTH,

Defendants.

BARBARA MOSES, United States Magistrate Judge.

Plaintiff Quintin J. Ballentine, proceeding pro se and in forma pauperis, brings this action

against the Postgraduate Center for Mental Health (PCMH), which operates a supportive mental

health housing facility where plaintiff resided from July 2019 to March 2025, and Jacob Barak,

PCMH's Chief Executive Officer (CEO). Plaintiff seeks damages and injunctive relief pursuant to

42 US.C. § 1983, alleging that defendants violated his rights under the First and Fourteenth

Amendments to the United States Constitution. He also asserts claims for violation of the Fair

Housing Act (FHA), 42 U.S.C. § 3601 ef seg., and for constructive eviction and breach of contract

under state law. Now before me for report and recommendation is defendants’ motion (Dkt. 34) to

dismiss plaintiff's claims pursuant to Fed. R. Civ. P. 12(b)(6). After careful review of the file, I

conclude that the motion should be granted, because plaintiff has not plausibly stated any federal

claim. However, plaintiff should be given leave to replead his FHA claims.

I. BACKGROUND

A. Factual Allegations

The facts summarized here are drawn from plaintiff's Second Amended Complaint

(Complaint or SAC) (Dkt. 21), as supplemented by his memorandum in opposition to defendants’

motion to dismiss (Pl. Mem.) (Dkt. 41). Defendant PCMH 1s a private nonprofit organization that

operates "supportive housing programs" in New York City, including a facility on Marion Avenue

in the Bronx (Marion Avenue residence). SAC ¶¶ 5, 6, 17. Defendant Barak is the CEO of PCMH.

Id. ¶ 7. Plaintiff Ballentin was a tenant residing at the Marion Avenue residence from

approximately July 2019 to March 2025. Id. ¶ 5.

Plaintiff's tenancy at the Marion Avenue residence began after a difficult chapter in his life

involving the death of his grandmother and a period of homelessness. SAC ¶ 8. During plaintiff's

tenancy, he "struggle[ed] with mental health challenges," but was "high-functioning and actively

engaged in treatment." Id. "Early interactions with staff" of PCMH were "cordial." Id. ¶ 9.

While residing at PCMH's facility, plaintiff advocated for himself and "other residents,

including children who were neglected and abused," Pl. Mem. at 13; supported "tenant rights," id.

at 14; and raised "objections to mistreatment." SAC ¶ 10. Plaintiff does not provide dates or details

for any of these advocacy activities. He alleges, however, that after his advocacy began, "the

supportive housing environment quickly deteriorated into a coercive and hostile setting," id. ¶ 9,

and he experienced "retaliation," including "[f]alse accusations of violence and psychosis,"

"[f]alsified psychiatric records alleging schizophrenia and aggression," "[t]argeted police wellness

checks and forced hospitalizations," and "[d]enial of reasonable requests and degradation by staff"

of PCMH. Id. ¶ 10.

Plaintiff does not provide any further details concerning the retaliation he experienced,

except for a single incident: on one occasion, then-director Jacqueline Peretz falsely claimed that

plaintiff had "lunged" at her and called "911," notwithstanding that plaintiff "was not in the

building or even in the borough at the time," as later confirmed by surveillance footage. SAC ¶ 11.

No "disciplinary action was taken against the staff for the false report." Id. Plaintiff does not

provide a date for this incident, nor for any other retaliatory incident; does not identify who

falsified the psychiatric records, instigated the wellness checks and hospitalizations, or denied his

"reasonable requests"; and does not describe those requests. He does allege, in general terms, that

he was subject to "at least three hospitalizations based solely on staff reports," id. ¶ 12, but does

not provide any dates or other details of these incidents.

During plaintiff's tenancy at the Marion Avenue residence, "four individuals he advocated

for passed away from drug overdoses." Pl. Mem. at 13; see also SAC ¶ 13 (plaintiff "witnessed

multiple overdoses and deaths of residents"). Plaintiff does not identify these residents or disclose

when they died. However, he attributes their deaths to "to lack of care and systemic indifference

by staff, who discouraged or punished complaints." SAC ¶ 13. While there were PCMH "[s]taff

members who supported residents," they were "terminated or disciplined for whistleblowing." Id.

¶ 14. Plaintiff does not identify any of the terminated staff members.

Due to "this ongoing abuse and fear for his psychological safety, Plaintiff vacated the

facility in March 2025." SAC ¶ 15. Plaintiff acknowledges that PCMH "labels this a 'voluntary

discharge,'" but asserts that in reality he was "constructively evicted under duress." Id.

B. Procedural History

Plaintiff Ballentine, who is a frequent litigant in this Court,1 filed his initial complaint on

0F

January 16, 2025. (Dkt. 1.) On March 10, 2025, he filed an amended complaint. (Dkt. 11.) On

April 7, 2025, defendants waived service (Dkt. 16), and on May 30, 2025, they appeared through

counsel. (Dkt. 18.)

1 A number of plaintiff's complaints allege that he was mistreated by the staff of shelters or

supportive housing facilities. See, e.g., Complaint (Dkt. 1), Ballentine v. State of New York, No.

24-CV-4615 (LTS) (S.D.N.Y. June 17, 2024); Complaint (Dkt. 1), Ballentine v. Bowery Residents

Committee, No. 25-CV- 2980 (LTS) (S.D.N.Y. April 9, 2025); Complaint (Dkt. 1), Ballentine v.

Cares for the Homeless, No. 25-CV-3819 (GHW) (S.D.N.Y. May 4, 2025); Complaint (Dkt. 1),

Ballentine v. State of New York, No. 25-CV-4700 (LTS) (S.D.N.Y. June 2, 2025); Complaint (Dkt.

1), Ballentine v. 245 West 131st Development LLC, No. 25-CV-9990 (UA) (S.D.N.Y. Nov. 29,

2025).

On June 2, 2025, plaintiff amended his pleading again, without first obtaining defendants'

consent or leave of the Court. On June 16, 2025, defendants advised the Court by letter that they

intended to file "a motion to dismiss Plaintiff's Second Amended Complaint, which is now the

operative pleading in this action." (Dkt. 26 at 1.) On June 18, 2025, "[t]he Court construe[d]

defendants' letter, in relevant part, as their consent to the filing of the pleading at Dkt. 21 as

plaintiff's Second Amended Complaint (SAC)." (Dkt. 28 at 2.)

Plaintiff invokes this Court's federal question jurisdiction pursuant to 28 U.S.C. §§ 1331

and 1343, see SAC ¶ 3, and asserts five causes of action. In Count I, brought pursuant to 42 U.S.C.

§ 1983, plaintiff alleges that defendants retaliated against him, in violation of the First Amendment,

for "exercising protected speech and advocacy." SAC ¶¶ 16-18. In Count II, also brought pursuant

to § 1983, he alleges that defendants violated his due process rights under the Fourteenth

Amendment by falsifying his psychiatric records, thereby "undermining [his] credibility and

dignity, resulting in reputational harm and tangible deprivation of housing and services." SAC

¶¶ 19-20. In Count III, plaintiff alleges that defendants violated the FHA, 42 U.S.C. §§ 3604 and

3617, by discriminating against him on the basis of disability, retaliating against his "protected

activities," and subjecting him to a "hostile housing environment." SAC ¶¶ 21-22. In Count IV,

plaintiff alleges that he was constructively evicted. Id. ¶ 23. Finally, in Count V, he alleges that

PCMH violated plaintiff's Occupancy Agreement, Sublease and Permanent Housing Service

Agreement, as well as the New York Mental Hygiene Law, by "denying services or misusing them

punitively," "[f]alsifying records," "[r]etaliating against plaintiff for attempting to advocate,"

"coercive use of wellness checks and psychiatric admissions," and "failing to maintain a safe and

supportive environment." Id. ¶¶ 24-25.

Plaintiff seeks compensatory and punitive damages, as well as injunctive relief, including

the correction of false records, "[i]ndependent oversight of PCMH facilities," and "[s]taff training

and accountability reforms." SAC at ECF pp. 7-8.

On July 21, 2025, defendants filed their motion to dismiss the SAC, supported by a

memorandum of law (Dkt. 36) and the declaration of attorney Tamika N. Hardy (Dkt. 35), with

exhibits. On August 14, 2025, in opposition to the motion, plaintiff filed his memorandum of law,

together with a document entitled Notice of Motion and Motion in Opposition (Pl. Cross-Mot.)

(Dkt. 40), which contains additional legal argument in opposition to the motion to dismiss and

requests, in the alternative, that plaintiff be granted leave to amend, "should the Court find any

claim insufficiently stated." Pl. Cross-Mot. at 5. On September 15, 2025, defendants filed a reply

memorandum (Def. Reply) (Dkt. 45).2

1F

II. LEGAL STANDARDS

A. Rule 12(b)(6)

If a plaintiff's complaint fails to present "sufficient factual matter, accepted as true, to state

a claim to relief that is plausible on its face," the deficient claims may be dismissed pursuant to

Fed. R. Civ. P. 12(b)(6). Absolute Activist Value Master Fund Ltd. v. Ficeto, 677 F.3d 60, 65 (2d

Cir. 2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). A claim is facially plausible

"when the plaintiff pleads factual content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. If the plaintiff has

2 After the motion to dismiss was fully briefed, plaintiff filed two unauthorized sur-replies (see

Dkts. 46, 47), to which defendants responded. (Dkt. 48.) By order dated September 25, 2025, I

advised the parties that all three filings would be disregarded. (Dkt. 49.) Plaintiff then filed a letter

raising his "concern about the appearance of partiality and any potential conflicts of interest,"

including under 28 U.S.C. § 455(a). (Dkt. 51, at 2.) I construed this letter "as a motion to recuse

me pursuant to 28 U.S.C. § 455(a)," which I denied. (Dkt. 52.)

not "nudged [his] claims across the line from conceivable to plausible, [his] complaint must be

dismissed." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

When evaluating a Rule 12(b)(6) motion, the court must "accept as true all factual

statements alleged in the complaint and draw all reasonable inferences in favor of the non-moving

party." McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). I have done so

here. In light of plaintiff's pro se status, I have also accepted – under the same standard – the factual

allegations made in his opposition papers, to the extent not inconsistent with his pleading. See

Ford v. Miller, 2019 WL 6831640, at *6 (S.D.N.Y. Aug. 23, 2019) ("[F]actual allegations made

in a pro se plaintiff's opposition papers, or the attachments thereto, may be considered 'as

supplementing the Complaint, at least to the extent they are consistent with the allegations in the

Complaint.'") (quoting George v. Pathways to Hous., Inc., 2012 WL 2512964, at *6 n.7 (S.D.N.Y.

June 29, 2012)), adopted, 2019 WL 4673445 (S.D.N.Y. Sept. 25, 2019); accord Dawkins v. Biondi

Educ. Ctr., 164 F. Supp. 3d 518, 521 n.1 (S.D.N.Y. 2016) (collecting cases).

Whether set forth in a complaint or in a supplemental filing, however, the plaintiff's factual

allegations "must be enough to raise a right to relief above the speculative level." Twombly, 550

U.S. at 555. "A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the

elements of a cause of action will not do.' Nor does a complaint suffice if it tenders 'naked

assertion[s]' devoid of 'further factual enhancement.'" Iqbal, 556 U.S. at 678 (internal citations

omitted) (quoting Twombly, 550 U.S. at 555, 557). Thus, the court may not credit "[t]hreadbare

recitals of the elements of a cause of action, supported by mere conclusory statements." Iqbal, 556

U.S. at 678. "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." Ballentine v. Bronx Care Med. Ctr., 2024 WL 4635253, at *1 (S.D.N.Y. Oct.

28, 2024) (dismissing an earlier case filed by plaintiff Ballentine pursuant to Rule 12(b)(6)).

"It is well established that the submissions of a pro se litigant must be construed liberally

and interpreted to raise the strongest arguments that they suggest." Meadows v. United Servs., Inc.,

963 F.3d 240, 243 (2d Cir. 2020) (citation and quotation marks omitted). However, pro se status

"does not exempt a party from compliance with relevant rules of procedural and substantive law."

Maisonet v. Metro. Hosp. & Health Hosp. Corp., 640 F. Supp. 2d 345, 348 (S.D.N.Y. 2009)

(quoting Boddie v. New York State Div. of Parole, 285 F. Supp. 2d 421, 426 (S.D.N.Y. 2003)).

Thus, a pro se plaintiff, like other plaintiffs, "must state a plausible claim for relief." Walker v.

Schult, 717 F.3d 119, 124 (2d Cir. 2013).

Because the purpose of a Rule 12(b)(6) motion is "to test, in a streamlined fashion, the

formal sufficiency of the plaintiff's statement of a claim for relief without resolving a contest

regarding its substantive merits," Glob. Network Commc'ns, Inc. v. City of New York, 458 F.3d

150, 155 (2d Cir. 2006), the court ordinarily may not accept "matters outside the pleadings"

without converting the motion into one for summary judgment. Fed. R. Civ. P. 12(d). There are

some exceptions to this rule. For example, district courts may consider documents attached to the

complaint or incorporated in it by reference, Chambers v. Time Warner, Inc., 282 F.3d 147, 152

(2d Cir. 2002), and "documents that, although not incorporated by reference, are 'integral' to the

complaint." L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 422 (2d Cir. 2011) (quoting Sira v.

Morton, 380 F.3d 57, 67 (2d Cir. 2004)). In this case, however, I have disregarded the exhibits to

the Hardy declaration – either because they do not fall into any of the categories sketched above,

or because I do not reach the issues to which they are relevant – and I base my analysis solely on

the allegations presented by plaintiff.

B. Section 1983

Plaintiff's constitutional claims are brought pursuant to 42 U.S.C. § 1983, which permits

civil suits against those who, acting "under color" of state law, have deprived a plaintiff of "any

rights, privileges, or immunities secured by the Constitution" or laws of the United States. 42

U.S.C. § 1983. "Section 1983 does not create any federal rights; rather, it provides a mechanism

to enforce rights established elsewhere." Soberanis v. City of New York, 244 F. Supp. 3d 395, 400

(S.D.N.Y. 2017) (citing Gonzaga Univ. v. Doe, 536 U.S. 273, 285 (2002)). To state a claim under

§ 1983, "a plaintiff must allege that (1) the defendant was a state actor, i.e., acting under color of

state law, when he committed the violation and (2) the defendant deprived the plaintiff of 'rights,

privileges or immunities secured by the Constitution or laws of the United States.'" Milan v.

Wertheimer, 808 F.3d 961, 964 (2d Cir. 2015) (citation omitted).

III. ANALYSIS

A. Constitutional Claims

1. State Action

Plaintiff seeks redress under § 1983 for defendants' alleged violations of his First and

Fourteenth Amendment rights. SAC ¶¶ 16-20. Only "state actors" may be held liable for

constitutional torts under § 1983. Milan, 808 F.3d at 964. Thus, once jurisdiction is established,

the court's "first inquiry" in a § 1983 case is "whether the actions alleged by the plaintiffs come

within the definition of 'under color of' [state] law." Kia P. v. McIntyre, 235 F.3d 749, 755 (2d Cir.

2000) (alteration in original) (quoting Carlos v. Santos, 123 F.3d 61, 65 (2d Cir. 1997)); see also

Tancredi v. Metro. Life Ins. Co., 316 F.3d 308, 312 (2d Cir. 2003) (§ 1983 plaintiffs must "show

state action"); United States v. Int'l Brotherhood of Teamsters, 941 F.2d 1292, 1295 (2d Cir. 1991)

("Because the United States Constitution regulates only the Government, not private parties, a

litigant claiming that his constitutional rights have been violated must first establish that the

challenged conduct constitutes 'state action.'"); Ballentine v. Bronx Care Med. Ctr., 2024 WL

4635253, at *2 (dismissing plaintiff's § 1983 claims against Bronx Care Medical Center because

it is "a private hospital, and therefore cannot be held liable under Section 1983").

"The activity of a private entity can be attributed to the state in three situations: (1) where

the entity acts using the coercive power of the state or is controlled by the state (the 'compulsion

test'); (2) where the entity willfully participates in joint activity with the state or its functions are

entwined with state policies (the 'joint action' or 'close nexus' test); or (3) where the state has

delegated a public function to the entity (the 'public function' test)." Megginson v. Bridge, Inc.,

2021 WL 6064409, at *2 (S.D.N.Y. Dec. 22, 2021) (citing Fabrikant v. French, 691 F.3d 193, 207

(2d Cir. 2012)). Here, plaintiff expressly relies on the nexus test, see Pl. Mem. at 25, arguing that

because PCMH "operat[es] under state contracts and regulations," it "effectively acts as an arm of

the state in providing mental health services." Id. at 25-26; see also SAC ¶ 17 ("Although PCMH

is a private entity, its actions were taken under color of state law via its public contracts, funding,

and regulatory obligations.").

Plaintiff does not provide any specific facts to support his broad assertion that PCMH

"operat[es] under state contracts and regulations." Even if these conclusions were factually

supported, however, they would be insufficient to show that PCMH was a state actor or that, by

providing plaintiff with voluntary supportive housing, it engaged in "state action." Pl. Mem. at 24-

25. To the contrary: "District courts have consistently declined to find that such conduct qualifies

as state action." Megginson v. Bridge, Inc., 2021 WL 6064409, at *2 (S.D.N.Y. Dec. 22, 2021)

(dismissing § 1983 claims brought by tenant of supportive housing program alleging abusive

conduct by program staff because "Plaintiff does not plead facts showing that The Bridge, Inc.

acted as a state actor in providing him with voluntary supportive housing"); see also Murray v.

New York City Dep't of Corr., 2016 WL 11395007, at *10 (E.D.N.Y. Aug. 18, 2016) ("[T]ransitional

housing facilities, and the employees who work for them are not considered state actors under

section 1983."), adopted, 2016 WL 5928672 (E.D.N.Y. Sept. 30, 2016); Azkour v. Bowery

Residents' Comm., Inc., 2015 WL 1344770, at *5 (S.D.N.Y. Mar. 23, 2015) ("[I]t is 'well

established that the provision of low-cost supportive housing is not a "public function" within the

meaning of section 1983, because "the provision of housing, for the poor or for anyone else, has

never been the exclusive preserve [of] the state."'") (quoting George, 2012 WL 2512964, at *4),

aff'd in relevant part, vacated in part, and remanded, 646 F. App'x 40, *41 (2d Cir. Apr. 18, 2016)

(summary order) ("[T]he district court properly dismissed and denied leave to amend [plaintiff's]

claims under § 1983 because [plaintiff] failed to adequately plead state action."), rev'd on other

grounds, 2016 WL 2646658 (S.D.N.Y. May 9, 2016).

Moreover, as the Murray court explained, "[e]ven if New York City and state agencies

regulate such facilities or have contracted with the organizations to provide services . . . , these

contracts do not transform the private organizations or their employees into state actors[.]" 2016

WL 11395007, at *10; see also Lurch v. Any & All Drs. That Gave Ord. to Forcibly Injure Plaintiff

& any Staff That Assisted, 2025 WL 2922806, at *3 (S.D.N.Y. Oct. 14, 2025) ("Receiving public

funds does not turn a private actor into state actor, and the actions of private contractors do not

become government action simply because of a contractors' engagement in government

contracts."); Megginson, 2021 WL 6064409, at *2 ("The fact that an entity receives public funds,

is subject to extensive regulation, or performs public contracts does not convert private action into

state action."); Young v. Halle Hous. Assocs., L.P., 152 F. Supp. 2d 355, 362 (S.D.N.Y. 2001)

("Government funding of a private entity, . . . no matter how extensive, is insufficient to transform

otherwise private conduct into state action.").3

2F

Likewise, plaintiff's allegations are insufficient to show that defendant Barak engaged in

any "state action." Indeed, other than identifying Barak as the CEO of PCMH, SAC ¶ 7, plaintiff

says nothing about Barak, and makes no effort to connect him to any of the pled conduct at the

Marion Avenue residence. Thus, even if plaintiff had adequately alleged that PCMH was a state

actor for purposes of his § 1983 claims, those claims would fail as against Barak. See Gaston v.

Coughlin, 249 F.3d 156, 164 (2d Cir. 2001) ("Proof of an individual defendant's personal

involvement in the alleged wrong is, of course, a prerequisite to his liability on a claim for damages

under § 1983."); Ballentine v. Bowery Residents' Comm., 2025 WL 2145980, at *3 (E.D.N.Y. July

29, 2025) (dismissing an earlier case filed by plaintiff Ballentine against city and state leaders

because he failed to offer "any facts suggesting that they individually harmed him"). Consequently,

plaintiff's constitutional claims should be dismissed as against both defendants.

2. Amendment

Plaintiff has requested leave to amend in the event the Court finds his claims "insufficiently

stated." Pl. Cross-Mot. at 5. "Generally, leave to amend should be 'freely given,' . . . and a pro se

litigant in particular 'should be afforded every reasonable opportunity to demonstrate that he has a

valid claim.'" Matima v. Celli, 228 F.3d 68, 81 (2d Cir. 2000) (quoting Satchell v. Dilworth, 745

3 Nor does a private organization become a state actor by requesting "police wellness checks,"

SAC ¶ 10, or by making "staff reports" leading to "forced psychiatric hospitalizations." Pl. Mem.

at 9. See Lurch, 2025 WL 2922806, at *4 (dismissing § 1983 claim against staff member at

homeless shelter who allegedly contacted emergency services "for a mental health evaluation for

Plaintiff," leading to his involuntary hospitalization and medication, because "[s]he was a private

party not acting under the color of state law"); Rice v. City of New York, 275 F. Supp. 3d 395, 404

(E.D.N.Y. 2017) ("[C]alling the police, even for an improper purpose, does not create private

liability under § 1983.").

F.2d 781, 785 (2d Cir. 1984)). However, leave to amend can and should be denied where it would

be "futile," such as where the "plaintiff cannot cure the deficiencies in his pleadings to allege facts

sufficient to support his claim." Onibokun v. Chandler, 749 F. App'x 65, 67 (2d Cir. 2019); see also

Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (where the "problem with [a complaint] is

substantive [and] better pleading will not cure it," leave to amend should be denied as futile).

The problem with plaintiff's § 1983 claims is substantive: PCMH and its CEO, Barak, are

not state actors. While plaintiff could – potentially – add more factual detail concerning PCMH's

public funding sources, the state regulations to which it is subject, and/or Barak's role (if any) in

the events of which plaintiff complains, it would be futile to permit him to amend for those

purposes, because the courts have "consistently declined" to find that the provision of supportive

housing by a private entity "qualifies as state action," Megginson, 2021 WL 6064409, at *2,

regardless of state funding or state regulation. See Murray, 2016 WL 11395007, at *12 (leave to

amend § 1983 claims would be futile where those claims were asserted "mostly against private

individuals and agencies that are not state actors"); Azkour, 2015 WL 1344770, at *8 (leave to

amend § 1983 claims against provider of transitional housing would be futile because "there is no

state action at issue"). Plaintiff's § 1983 claims should therefore be dismissed with prejudice as

against both defendants.

B. Fair Housing Act Claims

1. Discrimination

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

Bellwood, 441 U.S. 91, 93 (1979). To state a claim of intentional discrimination under the FHA, a

plaintiff must allege "facts that support a plausible claim that [he] was 'a member of a protected

class,' suffered relevant 'adverse' treatment, and 'can 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) (quoting Littlejohn v. City of New York, 795 F.3d 297, 311 (2d Cir. 2015)); accord

Ballentine, 2025 WL 2145980, at *2; Avila v. Acacia Network, Inc., 2024 WL 1659456, at *4

(S.D.N.Y. Apr. 15, 2024).

Disability ("handicap") is recognized as a protected class under the FHA, 42 U.S.C.

§§ 3604(c)-(f). To demonstrate that he is a member of that class, 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." Rodriguez v. Vill. Green Realty, Inc., 788 F.3d 31, 40 (2d Cir. 2015) (quoting 42

U.S.C. § 3602(h)). Here, plaintiff alleges that he was discriminated against "on the basis of

disability," SAC ¶ 21, and defendants "do not dispute that Plaintiff is a member of a protected

class." Def. Reply at 5. I therefore assume, for purposes of the pending motion to dismiss, that

Plaintiff has a disability as defined by the FHA.

However, plaintiff "alleges no facts . . . showing that his disability was at least a motivating

factor with regard to his allegations of discrimination" by defendants. Avila, 2024 WL 1659456, at

*4. For example, he does not allege that non-disabled tenants at the Marion Avenue residence were

treated more favorably than he was. See Evans v. Bronxworks, Inc., 2025 WL 3469952, at *8

(S.D.N.Y. Dec. 3, 2025) (dismissing FHA discrimination claim because "at most, [plaintiff] has

alleged that Bronxworks was aware of her [protected] status; she has not alleged that Bronxworks

treated her differently than others on that basis"), judgment entered, 2025 WL 3483580 (S.D.N.Y.

Dec. 4, 2025). Nor does he allege that the adverse actions of which he complains were motivated

by animus against disabled persons, or offer any other factual support for his conclusory allegation

that "Defendants discriminated against Plaintiff on the basis of disability." SAC ¶ 21 (emphasis

added).4 Plaintiff has therefore failed to sustain even his "minimal burden," Littlejohn, 795 F.3d at

3F

311, of showing facts suggesting an inference of discriminatory motivation. See Perricone-

Bernovich v. Tohill, 843 F. App'x 419, 421 (2d Cir. Apr. 16, 2021) (summary order) (affirming

dismissal of FHA discrimination claim where plaintiff alleged only that defendants were aware of

her disabilities when they denied her request for a zoning variance).5

4F

Moreover, plaintiff offers no facts connecting defendant Barak to the allegedly

discriminatory conduct, which is independently fatal insofar as plaintiff seeks to impose liability

on the individual defendant. See Higgins v. 120 Riverside Boulevard at Trump Place Condo., 2022

WL 3920044, at *23 (S.D.N.Y. Aug. 31, 2022) (Individual board members, or "agents such as

property managers," can be held liable for discrimination under the FHA, but only if "they have

4 In his brief, plaintiff argues that he has demonstrated that "the motivating factor behind the

adverse actions was [his] disability" because the adverse actions – specifically, the "fabricated

allegations" – "were directly linked to his status as a mental health patient." Pl. Mem. at 28.

Plaintiff misapprehends the standard. The question is not whether defendants' challenged conduct

touched on his mental health; it is whether defendants were motivated to engaged in that conduct

because of his mental health disability. Were it otherwise, a resident of supportive housing for

individuals with mental illness would be able to plead a prima facie FHA discrimination claim

merely by alleging that building staff requested a wellness check (justified or not) or reported a

mental health crisis to first responders (accurately or not).

5 An FHA discrimination claim may also be based on allegations that the defendants failed to

reasonably accommodate plaintiff's disability. See Perricone-Bernovich, 843 F. App'x at 421. To

plead such a claim, however, the plaintiff must show that he requested accommodations that were

"necessary to afford the handicapped person an equal opportunity to use and enjoy the dwelling,"

and that defendants denied those accommodations. Id. (quoting Olsen v. Stark Homes, Inc., 759

F.3d 140, 156 (2d Cir. 2014)). Here, plaintiff asserts in conclusory terms that his "reasonable

requests" were denied by "staff." SAC ¶ 10; see also Pl. Mem. at 28 (arguing that PCMH "refus[ed]

to accommodate Mr. Ballentine's needs"). But he never discloses what his "reasonable requests"

were, and consequently cannot show that they were "related to [his] disabilities," Perricone-

Bernovich, 843 F. App'x at 421, or, for that matter, that they were denied. Plaintiff therefore cannot

proceed on a failure-to-accommodate theory. For the same reasons, he cannot pursue a failure-to-

accommodate claim under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq.,

which in any event does not apply to the private landlords or their agents. See Blitz v. BLDG Mgmt.

Co., 2023 WL 6162295, at *6 (S.D.N.Y. Sept. 21, 2023) (dismissing ADA claims against the

management company responsible for plaintiff's apartment building and several individual

employees of the management company, because they "do not fall within the reach of the ADA").

personally committed or contributed to a Fair Housing Act violation.") (quoting Conn. Fair

Housing Center v. Corelogic Rental Prop. Solutions, LLC, 369 F. Supp. 3d 362, 375 (D. Conn.

2019)). Plaintiff's FHA discrimination claim must therefore be dismissed as against both

defendants. See Francis v. Kings Park Manor, Inc., 992 F.3d 67, 73 (2d Cir. 2021) (affirming

dismissal of FHA discrimination claim where plaintiff adequately pleaded membership in a

protected class but the complaint "lack[ed] even minimal support for the proposition that the . . .

Defendants were motivated by discriminatory intent") (record citation and quotation marks

omitted).

2. Retaliation

The FHA also prohibits retaliation against individuals for exercising their rights under the

statute. 42 U.S.C. § 3617. "To prevail on a claim of retaliation under the FHA, plaintiffs must

establish: (1) that they engaged in protected activity by opposing conduct prohibited under the

FHA; (2) that defendants were aware of that activity; (3) that defendants subsequently took adverse

action against plaintiffs; 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); accord

Noe v. Realty, 2024 WL 5508198, at *16 (S.D.N.Y. July 22, 2024), adopted sub nom. Noe v. Ray

Realty, 2025 WL 958407 (S.D.N.Y. Mar. 31, 2025), appeal dismissed (2d Cir. June 5, 2025).

Here, plaintiff has failed to plausibly plead the first, second, and fourth elements of the

claim. As to the first element, plaintiff alleges in broad and vague terms that he engaged in

"advocacy for himself and others, including objections to mistreatment." SAC ¶ 10. In his motion

papers, he adds that his advocacy addressed "tenant rights and safety in supportive housing," Pl.

Mem. at 14, and asserts that he advocated "for other residents, including children who were

neglected and abused." Id. at 13, 16. This may be sufficient to show that his advocacy extended to

"matters of public concern," for First Amendment purposes, id., but does not demonstrate that he

engaged in "[p]rotected activity under the FHA," which is narrowly defined to mean "action taken

to protest or oppose statutorily prohibited discrimination." Stable v. Kelly Towers Assocs., 2007

WL 80866, at *2 (S.D.N.Y. Jan. 10, 2007) (quoting Miller v. Bd. of Managers of Whispering Pines

at Colonial Wood Condo. II, 457 F. Supp. 2d 126, 131 (E.D.N.Y. 2006), and holding that "[l]odging

a complaint with HUD objecting to rent increases does not constitute a 'protected activity' as it [is]

unrelated to a FHA discriminatory housing proceeding"); see also Kendrick v. Greenburgh Hous.

Auth., 2011 WL 1118664, at *10 (S.D.N.Y. Mar. 22, 2011) (dismissing FHA retaliation claim

because "the conduct Plaintiff opposed was not conduct prohibited under the FHA"); 24 C.F.R.

§ 100.400(c)(5) (prohibiting “[r]etaliating against any person because that person has made a

complaint, testified, assisted, or participated in any manner in a proceeding under the Fair Housing

Act").

Nor does plaintiff explain whether the retaliatory actions he experienced were carried out

by individuals who were aware of his "protected activity under the FHA," as required to satisfy

both the second and the fourth elements of the claim. See Johnson v. YWCA Residence, LLC, 2014

WL 12782728, at *5 (S.D.N.Y. July 9, 2014) (dismissing FHA retaliation claim on summary

judgment where, among other things, "[t]he record does not suggest that Defendants were aware

of Plaintiff's HUD complaint when they took the actions of which Plaintiff complains," such that

"no rational finder of fact would conclude that there was any causal relationship between the two");

Cain v. Rambert, 2014 WL 2440596, at *7 (E.D.N.Y. May 30, 2014) (dismissing FHA retaliation

claim where, among other things, "[t]he Amended Complaint provides insufficient factual

assertions to permit the inference that Rambert was aware of [plaintiff's arguably protected

activity] when he initiated the holdover proceedings"); Mazzocchi v. Windsor Owners Corp., 2013

WL 5295089, at *12 (S.D.N.Y. Sept. 17, 2013) (holding plaintiff's retaliation claim to be

insufficiently pled where plaintiff informed defendants about another resident's membership in a

protected class, but did not plead additional facts to show that "Defendants were aware that [what

plaintiff] was complaining about [was] discrimination" against that resident). Indeed, as noted

above, plaintiff alleges that he experienced "[r]epeated incidents" where false reports were made

about him by staff, leading to "at least three hospitalizations," SAC ¶ 12, but – with the exception

of a single incident involving former director Peretz (see id. ¶ 11) – he does not identify any of the

staff members involved, much less explain how or what they knew about his advocacy work. Nor

does he link the individual defendant, Barak, to any of the allegedly retaliatory conduct.

Even where it is clear that the alleged retaliator was aware of the plaintiff's protected

activities, the plaintiff is required to show a causal connection between those activities and the

adverse action in order to sustain a retaliation claim. "A causal connection in retaliation claims can

be shown either '(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 employees who engaged in similar conduct; or (2) directly, through evidence of retaliatory

animus directed against the plaintiff by the defendant.'" Littlejohn, 795 F.3d at 319 (quoting

Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000)); accord Smith v. Davis, 2023

WL 5019432, at *7 (N.D.N.Y. Mar. 28, 2023) (applying framework to FHA retaliation claim),

adopted, 2023 WL 4346961 (N.D.N.Y. July 5, 2023). Here, plaintiff provides no timeline for any

of the events alleged in his pleading, and consequently cannot show that "the protected activity

was followed closely by discriminatory treatment." Littlejohn, 795 F.3d at 319. Nor does he allege

any fact that – taken as true for purposes of the pending motion – would demonstrate disparate

treatment of "fellow [tenants]" or provide direct "evidence of retaliatory animus." Id.

Consequently, plaintiff has failed to plead a viable claim for retaliation under the FHA. See Iqbal,

556 U.S. at 678 (the court may not credit "[t]hreadbare recitals of the elements of a cause of action,

supported by mere conclusory statements").

3. Hostile Housing Environment

The FHA makes it unlawful for property owners and their agents to unlawfully

"discriminate against any person in the terms, conditions, or privileges of sale or rental of a

dwelling," 42 U.S.C. § 3604(b), or to "coerce, intimidate, threaten, or interfere with any person in

the exercise or enjoyment of . . . any right granted or protected by [§ 3604]." 42 U.S.C. § 3617.

The Second Circuit has held that the these provisions protect residents against "post-acquisition"

conduct (that is, conduct after the resident purchased or rented the home) that "would constitute

discrimination in the enjoyment of residence in a dwelling or in the provision of services associated

with that dwelling." Francis v. Kings Parks Manor, Inc., 944 F.3d 370, 377 (2d Cir. 2019) (citation

and quotation marks omitted), vacated in part on other grounds, 992 F.3d 67 (2d Cir. 2021). To

prevail on such a claim, however, the plaintiff must plausibly allege "(1) that [he] was subjected

to harassment that was sufficiently pervasive and severe so as to create a hostile housing

environment; (2) that the harassment was because of the plaintiff's membership in a protected

class; and (3) that a basis exists for imputing the allegedly harassing conduct to the landlord."

A.L.M. ex rel. Moore v. Bd. of Managers of Vireum Schoolhouse Condo., 2021 WL 5121137, at

*1 (2d Cir. Nov. 4, 2021) (summary order) (quoting Pierre v. Lantern Grp. Found., Inc., 2016 WL

3461309, at *2 (S.D.N.Y. June 20, 2016)).

I construe plaintiff's Complaint, liberally, as asserting a hostile housing environment claim

under the FHA. See SAC ¶ 22 (noting that such claims are "actionable" under the FHA); Pl. Mem.

at 28 ("PCMH's actions also created a hostile and unsafe living environment."). Once again,

however, plaintiff's bare-bones pleading – which is long on conclusions but short on concrete facts

that might support those conclusions – fails to plausibly state such a claim.

First, plaintiff has not shown that he was "subjected to harassment that was sufficiently

pervasive and severe so as to create a hostile housing environment." Pierre, 2016 WL 3461309, at

*2. This is a demanding standard. To sustain a hostile housing environment claim, the harassment

"must have been 'severe or pervasive enough to interfere with the terms, conditions or privileges'

of his or her residency. In other words, the offensive conduct must 'unreasonably interfere[ ] with

[plaintiff's] use and enjoyment of the premises.'" Dickerson v. BPP PCV Owners LLC, 2024 WL

1348497, at *2 (S.D.N.Y. Mar. 28, 2024) (citations omitted and remaining alterations in original).

In order to determine whether the harassment was sufficiently "pervasive and severe," the court

considers "the totality of the circumstance, including the frequency of the discriminatory conduct,

its severity, and whether it is physically threatening or humiliating rather than merely offensive."

Wetzel v. Glen St. Andrew Living Cmty., LLC, 901 F.3d 856, 862 (7th Cir. 2018); see also A.L.M.

ex rel. Moore, 2021 WL 5121137, at *1 ("The '[f]actors to be considered . . . include . . . the nature

of the conduct, the context in which the incident(s) occurred, the severity, scope, frequency,

duration, and location of the conduct, and the relationships of the persons involved.'") (quoting 24

C.F.R. § 100.600(a)(2)(i)(A)). A plaintiff must demonstrate "either that a single incident was

extraordinarily severe, or that a series of incidents were sufficiently continuous and concerted to

have altered the conditions" of his living environment. Alfano v. Costello, 294 F.3d 365, 374 (2d

Cir. 2002) (internal quotation omitted); accord Dickerson, 2024 WL 1348497, at *2 (S.D.N.Y.

Mar. 28, 2024). "'Isolated or sporadic' acts generally are not pervasive or severe enough to

constitute a hostile environment under the FHA." Dickerson 2024 WL 1348497, at *2.

Here, because plaintiff provides no dates or details concerning any of the alleged

harassment he suffered (except for one incident involving former director Peretz), he has not met

his pleading burden. See Dickerson 2024 WL 1348497, at *3 (dismissing hostile housing

environment claim because the one "distressing" incident detailed in plaintiff's complaint – in

which she was falsely accused of theft by a building employee, who then called the police – "cannot

be considered 'extraordinarily severe' enough to constitute an 'intolerable alteration' of the

conditions of Plaintiff's housing environment") (citation omitted).

Second, plaintiff has failed to show "that the harassment was because of the plaintiff's

membership in a protected class." Pierre, 2016 WL 3461309, at *2 (emphasis added). In Pierre,

the plaintiff alleged that Lantern (a provider of supportive and transitional housing) and various

individual defendants "filed false police complaints against her" and "harassed her and her guests"

in her home. Id. at *1. However, she failed to "connect[] the alleged harassment by Defendants to

any discriminatory motive," id. at *2, requiring the dismissal of her case under Rule 12(b)(6).

Similarly, in Dickerson, plaintiff alleged that she was falsely accused because of her race, but

failed to plead any facts showing that the building employee who accused her "was motivated by

racial animus during the confrontation." 2024 WL 1348497, at *3-4. So too here. As discussed in

Part III(B)(1), supra, plaintiff does not offer any direct evidence that defendants' alleged

harassment was motivated by prejudice against disabled tenants; does not show that he was treated

less favorably that non-disabled tenants; and does not offer any other facts tending to show that he

was harassed because of his disability. Consequently, he has not plead a viable hostile housing

environment claim under the FHA.

4. Amendment

It is possible that "better pleading," Cuoco, 222 F.3d at 112, could cure the problems with

plaintiff's FHA claims. He should therefore be given leave to replead those claims within 30 days

of the Court's decision on the motion to dismiss. Plaintiff should be cautioned, however, that claims

arising under the FHA are subject to a two-year statute of limitations, running from "the occurrence

or the termination of an alleged discriminatory housing practice." 42 U.S.C. § 3613(a)(1)(A); see

also Grimes v. Fremont Gen. Corp., 785 F. Supp. 2d 269, 291-92 (S.D.N.Y. 2011) (declining to

applying "continuing violation doctrine" and dismissing FHA claims as time-barred). Thus, in

addition to pleading concrete facts that satisfy the elements of an FHA discrimination, retaliation,

and/or hostile housing environment claim, plaintiff must provide dates for all of the allegedly

unlawful conduct he describes, to allow the Court to determine whether and to what extent that

conduct is within the two-year statute of limitations.

Plaintiff should also be reminded that any Third Amended Complaint will replace (rather

than supplement) his prior pleadings, and therefore must be submitted as a single document (with

exhibits, if appropriate) that includes all of the legal claims that he is permitted to replead and all

of the "factual content," Iqbal, 556 U.S. at 678, on which those claims are based. If plaintiff is

granted leave to amend, and submits a Third Amended Complaint, the Court is unlikely to tolerate

any additional attempts by plaintiff to further expand or alter his legal claims or factual allegations

through supplemental filings.

C. State Law Claims

Plaintiff's state law claims are within this Court's supplemental jurisdiction only to the

extent that they form "part of the same case or controversy" as his § 1983 and FHA claims. 28

U.S.C. § 1367(a). Supplemental jurisdiction may be declined where "the district court has

dismissed all claims over which it has original jurisdiction." Id. § 1367(c)(3). Although the statute

is phrased in discretionary terms, and there is no "mandatory rule to be applied inflexibly in all

cases," Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988), in the "usual case in which

all federal-law claims are eliminated before trial, the balance of factors to be considered under the

pendent jurisdiction doctrine – judicial economy, convenience, fairness, and comity – will point

toward declining to exercise jurisdiction over the remaining state-law claims." Id.; see also Kolari

v. N.Y.-Presbyterian Hosp., 455 F.3d 118, 123 (2d Cir. 2006) (reversing district court decision to

retain supplemental jurisdiction over state law claims after dismissing federal claim, citing "the

absence of a clearly articulated federal interest"); Motorola Credit Corp. v. Uzan, 388 F.3d 39, 56

(2d Cir. 2004) (upholding a district court's jurisdictional determination after the district court

dismissed all federal claims); Espinoza v. New York City Dep't of Transportation, 304 F. Supp. 3d

374, 391 (S.D.N.Y. 2018) (noting that courts in this district routinely decline to exercise

supplemental jurisdiction and collecting cases); Marcus v. AT&T Corp., 138 F.3d 46, 57 (2d Cir.

1998) ("In general, where the federal claims are dismissed before trial, the state claims should be

dismissed as well.").

There is no discernable federal interest embedded in plaintiff's state-law claims for

constructive eviction and breach of contract. Nor do any of the other Cohill factors militate in favor

of this Court retaining jurisdiction over those claims. Consequently, there is no reason to vary from

the usual rule in this case. As the Young court explained (after dismissing plaintiff's § 1983 claims

against a privately owned supportive-housing facility for lack of state action), "the remaining

dispute is essentially a landlord-tenant matter that is more appropriately resolved in state court."

152 F. Supp. 2d at 366; see also Dickerson, 2024 WL 1348497, at *4 (declining to retain

jurisdiction over state law claims after dismissing FHA claims against supportive housing

provider). Here too, given the absence of any valid federal claim, the Court should decline to

exercise supplemental jurisdiction over plaintiff's remaining state-law claims.

IV. CONCLUSION

For the reasons stated above, I recommend, respectfully, that defendants’ motion (Dkt. 34)

be GRANTED and that plaintiff's cross-motion to amend (Dkt. 40) be GRANTED IN PART.

Specifically, I recommend that plaintiffs § 1983 claims be dismissed with prejudice; that his FHA

claims be dismissed with leave to amend, within 30 days of the Court's decision; and that his state

law claims be dismissed without prejudice, for lack of subject-matter jurisdiction.

Dated: New York, New York

February 13, 2026

awoke

BARBARA MOSES

United States Magistrate Judge

NOTICE OF PROCEDURE FOR FILING OF OBJECTIONS

TO THIS REPORT AND RECOMMENDATION

The parties have 14 days from this date to file written objections to this Report and

Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b), unless they receive

this Report and Recommendation solely by mail, in which case they have 17 days from the date

on which it was mailed. See Fed. R. Civ. P. 6(a), 6(d). Any objections must be filed with the Clerk

of the Court, addressed to the Hon. Analisa Torres, and delivered to Judge Torres in accordance

with her individual practices. Any request for an extension of the deadline to file objections must

also be directed to Judge Torres. Failure to file timely objections will result in a waiver of such

objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140, 155 (1985);

Frydman vy. Experian Info. Sols., Inc., 743 F. App'x 486, 487 (2d Cir. 2018) (summary order);

Wagner & Wagner, LLP y. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596

F.3d 84, 92 (2d Cir. 2010).

92