MEMORANDUM AND ORDER

NAOMI REICE BUCHWALD, UNITED STATES DISTRICT JUDGE.

Plaintiff Jennifer Louise Lopez ("plaintiff") moves for a preliminary injunction in this action brought pursuant to, inter alia, 42 U.S.C. § 1983 ("§ 1983"), New York State Civil Rights Law § 79-n ("§ 79-n"), and the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code § 8-101 et seq. Plaintiff principally seeks an order directing defendant City of New York (the "City") to record and investigate in a non-discriminatory manner her criminal complaints against fellow tenants in her supportive housing project for formerly homeless adults whom she alleges have harassed and threatened her, and enjoining defendants Cecil Housing Development Fund Corporation ("CHDFC") and Housing and Services, Inc. ("HSI," and together with defendant Ralph Garcia, the "Cecil Defendants"), from discriminating on the basis of her expression of her gender identity. While the alleged behavior of certain of plaintiff's neighbors is reprehensible and in some circumstances possibly unlawful, she has not adequately shown that the City or Cecil Defendants are the appropriate parties against whom to impose liability. We deny the motion.

BACKGROUND

I. Facts

Except where noted, the following facts, drawn from the complaint filed September 12, 2015 (the "Complaint" or "Compl."), the Declaration of Jennifer Louise Lopez ("Lopez Decl.") and the exhibits attached thereto, the Declaration of HSI Director of Programs Kristi Kimmerle ("Kimmerle Decl.") and the exhibits attached thereto, and the briefs submitted in connection with the instant motion, are not in dispute for purposes of this motion. Plaintiff, a woman of trans experience, is a community activist who advocates for acceptance and integration of persons of trans experience. In March 2013, she was offered a subsidized room in the Cecil Hotel (the "Cecil"), a single-room occupancy building operated by not-for-profit corporations HSI and CHDFC comprising 89 units and serving a population of the chronically homeless, in addition to the formerly incarcerated and individuals living with severe and persistent mental illness, HIV/AIDS, addiction, and developmental or physical disabilities. Kimmerle Decl. ¶¶ 4-5. According to its website, HSI provides access to "wide-ranging on-site services that are elective and customized" to target "root causes of homelessness." Compl. ¶ 58. Before committing to her lease, plaintiff was reassured by HSI's managerial agent that the Cecil would be a supportive environment where she could freely express her gender identity.

Plaintiff moved into the Cecil in April 2013, and within a few months, five of her neighbors began to subject her to harassment, intimidation, and other vulgar behavior. Specifically, in addition to referring to her as "he," "man," and "bastard," they yell and play loud music to wake her up before turning it down when Cecil security arrives; loudly accuse her of fouling the shared bathrooms, with explicit references to her genitalia and appearance; shout vulgar epithets at her; and threaten her with violence. Id. ¶¶ 48-51.

Plaintiff's submissions detail instances of her calling the police in response to these neighbors' conduct:

More generally, plaintiff states that despite her calling for police help "dozens of times," the NYPD has repeatedly refused to record her complaint, with the exception of the May 2015 complaint. Id. ¶ 66.2 She asserts that the neighbors' conduct and the NYPD's response generally follow a similar pattern, in which the neighbors' harassment continues unabated until it escalates to threats of physical or sexual violence, compelling her to call 911; Cecil security guards tell the arriving police officers that the "program director" will take care of the issue the next day, or that the complaints are "all part of the program"; and the officers tell her that she must address her complaints to Cecil management and cannot file a complaint with the NYPD. Id. ¶¶ 57, 59. In addition, she alleges that security guard Garcia frequently referred to her "dismissively as `Jennifer Lopez' or `J Lo' to the NYPD's various responding officers, almost always eliciting a smile or chuckle." Id. ¶ 46. Plaintiff has adopted a nocturnal schedule to avoid those neighbors who harass her, begun to drink to sleep, and has been worn down physically and mentally to the point where she contemplates suicide.

In August 2015, while suffering a "hateful diatribe, Plaintiff struck one of her Tormentors in the face as he came close enough to physically intimidate her," and "[a]nother Tormentor grabbed Plaintiff and dragged her roughly down the hall before she escaped his grasp and left the building to get away." Id. ¶ 80. Cecil management coordinated with the NYPD to effect plaintiff's arrest later that day at her apartment; the NYPD arrested only her and did not file a complaint from her. Management informed her that house rules required tenants to refrain from disturbing their neighbors and that she no longer qualified for services previously provided to her and otherwise available to residents. However, following this action's commencement, HSI offered plaintiff both in-house psychiatric services and referrals to outside psychiatric services, and plaintiff confirms that any issue of "cancelled" psychiatric services has been resolved, see Pl. Reply at 4.3

II. Procedural Background

On September 4, 2015, plaintiff commenced this action, bringing § 1983 claims against all defendants for violations of her equal protection and due process rights and claims under state and local law against the Cecil Defendants.4 Proceeding initially through an order to show cause, she has moved for a preliminary injunction, requesting that we enjoin the City from engaging in any further discriminatory conduct against her based on her expression of her gender identity; direct the City to take and file her "complete criminal complaints against those of her neighbors who have victimized [her] with criminal acts" and to investigate her complaints in a non-discriminatory manner; enjoin HSI/CHDFC from engaging in discriminatory conduct against her and excluding her from social services offered at the Cecil; and enjoin HSI/CHDFC from terminating or otherwise interfering with her tenancy.5 Order to Show Cause, ECF No. 8 at 1-2. The case was assigned to this Court on September 21, and after a conference on September 24, the parties conferred and agreed on a non-expedited briefing schedule. The motion was fully briefed on December 9.

DISCUSSION

I. Preliminary Injunction Standard

In order to obtain the extraordinary remedy of a preliminary injunction, the moving party must generally establish: "(1) irreparable harm absent injunctive relief; (2) either a likelihood of success on the merits, or a serious question going to the merits to make them a fair ground for trial, with a balance of hardships tipping decidedly in the [movant's] favor; and (3) that the public's interest weighs in favor of granting an injunction," Red Earth LLC v. United States, 657 F.3d 138, 143 (2d Cir. 2011) (internal quotation marks omitted). "The burden is even higher on a party ... seek[ing] a mandatory preliminary injunction that alters the status quo by commanding some positive act, as opposed to a prohibitory injunction seeking only to maintain the status quo." Cacchillo v. Insmed, Inc., 638 F.3d 401, 406 (2d Cir. 2011) (internal quotation marks omitted). The former should issue "only upon a clear showing that the moving party is entitled to the relief requested, or where extreme or very serious damage will result from a denial of preliminary relief." Id. (internal quotation marks omitted). While plaintiff incorporates this more demanding standard, she arguably seeks a combination of mandatory and prohibitory injunctive relief: an order directing the NYPD to record her criminal complaint and to conduct an unbiased investigation into her alleged harassers, but also prohibiting future discriminatory conduct and preventing the Cecil Defendants from interfering with her attempts to obtain police assistance. Because she does not meet either standard, we need not distinguish our analysis based on the relief sought.

II. Irreparable Harm

The single most important consideration for the issuance of a preliminary injunction is a showing of probable irreparable harm: the movant must show that her alleged injury is likely and imminent, not remote or speculative, and that the injury cannot be fully remedied by monetary damages. Reuters Ltd. v. United Press Int'l, Inc., 903 F.2d 904, 907 (2d Cir.1990). As a general matter, irreparable harm is presumed when there is an alleged deprivation of constitutional rights. Donohue v. Mangano, 886 F.Supp.2d 126, 150 (E.D.N.Y.2012). However, the "assertion of a constitutional injury is insufficient to automatically trigger a finding of irreparable harm," and thus we "cannot determine whether the constitutional deprivation is convincingly shown without assessing the likelihood of success on the merits." Id.

III. Claims Against the City

Recognizing that a "State's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause," DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 197, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989), plaintiff instead challenges the NYPD's failure to adequately investigate her claims as (i) an equal protection violation based on her gender identity, and (ii) a due process violation under the state-created danger exception to DeShaney's general rule.

A. Equal Protection

"While the Constitution provides individuals with no affirmative right to an investigation of their claims by the government, it does prohibit the government from treating individuals unequally when determining which claims to investigate." Troy v. City of New York, No. 13-CV-5082 (AJN), 2014 WL 4804479, at *10 n. 3 (S.D.N.Y. Sept. 25, 2014), aff'd, 614 Fed. Appx. 32 (2d Cir.2015); see DeShaney, 489 U.S. at 197 n. 3, 109 S.Ct. 998 (State may not "selectively deny its protective services to certain disfavored minorities without violating the Equal Protection Clause"). Plaintiff and the City agree that to establish an equal protection violation, she must show that (1) "compared with others similarly situated, [she was] selectively treated," and (2) "the selective treatment was motivated by an intention to discriminate on the basis of impermissible considerations," Mosdos Chofetz Chaim, Inc. v. Vill. of Wesley Hills, 815 F.Supp.2d 679, 692 (S.D.N.Y.2011) (quoting Zahra v. Town of Southold, 48 F.3d 674, 683 (2d Cir. 1995)).6 While plaintiff and the City disagree on the level of scrutiny to apply to any disparity in treatment, we need not resolve that dispute because plaintiff has failed to sufficiently show purposeful discrimination.

In arguing that she was "treated differently from similarly situated persons in several material respects," plaintiff relies solely on provisions in the NYPD Patrol Guide which she claims create a "non-discretionary duty" on the part of NYPD officers "to accept all criminal complaints." Pl. Mem. at 16. However, "[i]n police failure-to-serve cases, the courts consistently have required more evidence of discriminatory intent than a simple failure of diligence, perception, or persistence in a single case involving minority victims." Carmichael v. City of New York, 34 F.Supp.3d 252, 262 (E.D.N.Y.2014) (internal quotation marks omitted); see id. (collecting cases).

Accordingly, the Patrol Guide, an internal manual containing rules, procedures and policies adopted for the "governance, discipline, administration and guidance of the Police Department," Galapo v. City of New York, 95 N.Y.2d 568, 574-75, 744 N.E.2d 685, 688, 721 N.Y.S.2d 857 (2000), does not, standing alone, support the conclusion plaintiff asks us to draw.7 To begin, the sections excerpted by plaintiff lack clear language indicating that a responding officer retains no discretion to determine whether a particular situation merits recording a formal complaint.8 As the City points out, "the duty to investigate criminal acts (or possible criminal acts) almost always involves a significant level of law enforcement discretion," Harrington v. County of Suffolk, 607 F.3d 31, 35 (2d Cir.2010).

More importantly, besides for her unsupported assertion that the Patrol Guide would not only require but would in fact result in officers recording a complaint in similar circumstances, plaintiff neither alleges nor provides evidence that the NYPD's treatment of her was different from that of similarly situated individuals. Plaintiff does not attempt to prove that the NYPD would respond to comparable calls from non-trans experience persons concerning noise, harassment, or verbal threats by recording complaints or conducting more thorough investigations, and therefore she has not shown selective treatment. See Carmichael, 34 F.Supp.3d at 263-68 (granting City summary judgment where plaintiff did not produce evidence sufficient to show that NYPD had a practice of failing to conduct immediate searches for African-Americans reported as missing, in contrast to its treatment of white persons reported as missing, or that plaintiff's race motivated her treatment); Okin v. Vill. of Cornwall-On-Hudson Police Dep't, 577 F.3d 415, 438-39 (2d Cir. 2009) (rejecting argument that "repeated deviations from the mandatory arrest statute and from corresponding police department policy" with respect to one female domestic violence victim could be grounds for an inference of gender bias).

Nor does plaintiff show that any treatment was motivated by discriminatory intent. Her only specific allegation on this front is that NYPD officers "almost always" reacted to Garcia calling her "Jennifer Lopez" or "J Lo" by "smil[ing] or chuckl[ing]," Compl. ¶ 46. Even if the officers' reactions plausibly reflect poor taste or perhaps prejudice, we do not think the reactions alone are sufficient to infer that the officers' conduct in these circumstances was motivated by discriminatory animus. Indeed, relying on such reactions is particularly difficult where plaintiff's Complaint and contemporaneous writings to Cecil management evidence her belief that the officers' decisions not to pursue an investigation further were animated by Cecil employees' representations that any problems would be addressed internally as part of a program. See Compl. ¶¶ 57-59; Lopez Decl., Ex. 8 at 3 (letter asserting that Garcia's representation of herself as "authoritative figure in the building" led to police discrediting plaintiff's statements); id. Ex. 12 (letter claiming Garcia used misleading references to "program" as "tactic" to get "NYPD not to do anything"). In sum, the absence of evidence of similarly-situated persons treated differently or of plaintiff's gender expression motivating the officers' conduct precludes injunctive relief.

B. State-Created Danger

State actors can be liable for substantive due process violations under the state-created danger doctrine for "affirmative act[s] that create[] an opportunity for a third party to harm a victim (or increase[] the risk of such harm)." Lombardi v. Whitman, 485 F.3d 73, 80 (2d Cir.2007). Thus, as relevant here, police officers may infringe a victim's rights where the officers "communicate to a private person that he or she will not be arrested, punished, or otherwise interfered with while engaging in misconduct that is likely to endanger the life, liberty or property of others." Pena v. DePrisco, 432 F.3d 98, 111 (2d Cir.2005); see Dwares v. City of New York, 985 F.2d 94, 99 (2d Cir.1993) (distinguishing between officers "fail[ing] to act upon reports of past violence" and "officers in some way ... assist[ing] in creating or increasing the danger to the victim"). The doctrine reaches not only express sanction of private violence, see id. (reinstating due process claims where police assured skinheads that unless they got totally out of control, they would not be prevented from beating up protestors), but also implicit condoning of such violence. For example, officers could be found to have "affirmatively encouraged ... domestic violence" where they discussed football with a suspect who allegedly beat and choked his girlfriend, were dismissive of the victim in front of the suspect, declined to arrest him despite his admission that "he could not `help it sometimes when he smacks [her] around,'" and responded to several similar complaints without filing an incident report or interviewing the suspect. Okin, 577 F.3d at 429-30. In each case in this line of the state-created danger doctrine, however, officers explicitly or implicitly communicated to the perpetrators that their "actions were acceptable, or, at least, would go unpunished." Bunn v. City of Poughkeepsie, No. 10 CIV. 2297 (PAE), 2012 WL 1621563, at *5 (S.D.N.Y. May 9, 2012).

Here, while plaintiff asserts generally that her neighbors escalated their abuse when they saw her requests for police help go unanswered or result in officers dismissing or ridiculing her, there is a paucity of evidence to support that contention. There is limited evidence of officers actually interacting with the neighbors: plaintiff does contend that officers treated her with "disdain or even contempt," laughed or smiled at Garcia's "J Lo" references, and refused to record her complaints, Compl. ¶¶ 5, 46, and indicates that this occurred in front of neighbors, see id. ¶ 92 (alleging "continued and public inaction" and "public encouragement" of neighbors "by laughing and smiling" at jokes).

Viewed in context, however, these allegations do not suggest that police communicated to the neighbors that the officers were unlikely to intervene if the misconduct intensified. Officers responded to each of plaintiff's calls for assistance, see id. ¶ 5, and the only detailed contemporaneous evidence of interaction between NYPD and any neighbor is of an officer attempting to dissuade an alleged harasser from engaging in some of the complained-of misconduct: plaintiff's January 2014 letter to Cecil management indicates that officers sent at her request to talk to two Cecil tenants instructed one of them not to yell into the hall and not to play very loud music, see Lopez Decl., Ex. 8 at 2-3. The limited information available here does not reveal police conduct likely to embolden the neighbors in harassing or threatening plaintiff.

Further, plaintiff devotes no space in her brief to addressing a necessary requirement for establishing a substantive due process violation: whether the state action in question is "so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience." County of Sacramento v. Lewis, 523 U.S. 833, 847 n. 8, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). Intentionally inflicted injuries are most likely to rise to that level, whereas "negligently inflicted harm is categorically beneath the threshold of constitutional due process"; in between is the context-specific "closer call[]" of recklessness. Id. at 848-49, 118 S.Ct. 1708. Liability based on such "deliberate indifference" requires "proof that the defendant focused upon the risk of unconstitutional conduct and deliberately assumed or acquiesced in such risk." Pena, 432 F.3d at 114 (internal quotation marks omitted); see id. (alleged behavior conscience shocking where it took place "over an extended period of time and in the face of action that presented an obvious risk of severe consequences and extreme danger"); Okin, 577 F.3d at 431-32 (officers' actions demonstrated "willful disregard" of serious and obvious risks of domestic violence situation).

Here, there is no evidence of intentional injury, and the allegations regarding interactions between NYPD officers and plaintiff or her neighbors do little to suggest that the officers were presented with an obvious risk of danger or were aware of any likelihood that their failure to investigate further would enhance such risk. While plaintiff apparently communicated her neighbors' threats of violence to police, she also called them to resolve noise disputes, see Lopez Decl., Exs. 8, 13, from which the officers would not infer a risk of serious impending harm. Moreover, whether or not it was appropriate to allegedly stop investigating when told that complaints about fellow Cecil tenants were to be addressed through a special program, those representations made it less likely that the officers would draw the inference that she was in danger. In light of all of the above, plaintiff's motion on her due process claim is denied.9

IV. Claims against the Cecil Defendants

Plaintiff moves for a preliminary injunction against the Cecil Defendants on her claims pursuant to § 1983, the NYCHRL, and § 79-n. She has not demonstrated a likelihood of success or substantial questions with respect to the merits of these claims.

As for her § 1983 claims, the actions of private parties may be deemed state action only if "there is a sufficiently close nexus between the State and the challenged action of the ... entity so that the action of the latter may be fairly treated as that of the State itself," Am. Mfrs. Mut. Ins. v. Sullivan, 526 U.S. 40, 52, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999) (internal quotation marks omitted). Accordingly, state action may be established where:

Tancredi v. Metro. Life Ins., 316 F.3d 308, 313 (2d Cir.2003) (alteration in Tancredi) (quoting Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 296, 121 S.Ct. 924, 148 L.Ed.2d 807 (2001)). Plaintiff asserts that the Cecil Defendants acted under color of state law because they colluded with NYPD officers and acted "pursuant to the police-power authority apparently and openly granted" to them. Pl. Mem. at 15.

While the Cecil Defendants ignore these assertions, responding only that the receipt of public funding does not convert them into state actors, we nonetheless find plaintiff's theories of state action unavailing at this stage. With respect to her collusion theory, "[a] private actor can only be a willful participant in joint activity with the State or its agents if the two share some common goal to violate the plaintiff's rights," Betts v. Shearman, 751 F.3d 78, 85 (2d Cir.2014) (internal quotation marks omitted), and, given the above discussion of her equal protection and due process claims against the City, plaintiff has not shown that NYPD officers responding to her calls shared such a goal. Further, any supposition of joint action is belied by her contentions that Cecil employees "falsely represented" to the officers that her "dispute is part of a special `program' [and] would be addressed ... by the `program coordinator,'" Pl. Reply at 2; see Lopez Decl., Ex. 12 (plaintiff's letter to management contending that "actions of Cecil staff have caused some of the police to think that this building is a `program' and that matters are dealt with by staff at the Cecil").10 With respect to her delegation-of-police-power theory, plaintiff appears to be implicating the "public function" test, but provides no analysis or support for her argument that private security personnel performed an exclusively public function delegated to them by the state because they assured responding officers that complaints would be resolved internally and the officers left. Cf. Romanski v. Detroit Entm't, L.L.C., 428 F.3d 629, 637 (6th Cir.2005) ("Where private security guards are endowed by law with plenary police powers such that they are de facto police officers, they may qualify as state actors under the public function test." (some emphases added)). Cecil guards were not authorized to carry out all of the NYPD's investigative functions simply because NYPD officers, who came to the Cecil and conducted at least some inquiries in response to her calls, decided not to take further action once made aware that the Cecil apparently intended to resolve certain complaints of nonviolent behavior internally. Absent colorable arguments that the Cecil Defendants acted under color of state law, plaintiff is not entitled to injunctive relief on her § 1983 claims against them.

As for her § 79-n claim, plaintiff is correct that this relatively new civil cause of action for "[b]ias-related violence or intimidation" applies to those intentionally selected or harmed because of a "belief or perception" regarding their, inter alia, gender identity or expression. N.Y. Civ. Rights Law § 79-n(1)(d), (2). However, she cites no authority indicating that the remedy is applicable absent allegations that the Cecil Defendants themselves engaged in acts of violence or intimidation directed at her. Indeed, the legislative history suggests otherwise. See N.Y. State Assembly Mem. in Support, Bill Jacket, 2010 A.B. 529, ch. 227, at 4 (bill would "provide the vehicle necessary for someone to initiate a civil action against a perpetrator of bias-related violence or intimidation"); Governor's Approval Mem., Bill Jacket, 2010 A.B. 529, ch. 227, at 3 ("new remedy applies only to `bias-related violence or intimidation'" (emphases in original)).

Finally, the Complaint does not identify a particular NYCHRL provision that the Cecil Defendants violated, but in her brief plaintiff cites New York City Administrative Code § 8-107(19), which makes it unlawful "for any person to coerce, intimidate, threaten or interfere with ... any person in the exercise or enjoyment of ... any right granted or protected pursuant to [§ 8-107]," or to attempt to do so. However, she neither specifies the relevant right protected by § 8-107 that the Cecil Defendants allegedly invaded nor provides any justification for the provision's application here. Plaintiff does make a passing reference to the NYCHRI's prohibition on discrimination in connection with housing accommodations, see Pl. Mem. at 22, but prior to any development on this issue, we have no reason to conclude that plaintiff's interest in initiating criminal investigations against her neighbors is one of "the terms, conditions or privileges" of the "lease" or the "facilities or services" furnished in connection therewith so as to be actionable under § 8-107(5)(a)(2). Accordingly, we deny plaintiff's motion on her NYCHRL claims as well.11

CONCLUSION

For the foregoing reasons, plaintiff's motion for a preliminary injunction is denied. The Court will contact the parties shortly to schedule a conference in this action.

SO ORDERED.