JAMES L. COTT, Magistrate Judge.
Pro se plaintiff Fulgencio Rodriguez brings this action pursuant to 42 U.S.C. § 1983 and several federal and New York state regulations alleging violations of his rights while released from a correctional facility to parole supervision. The remaining defendants, Parole Officer Elvis Ramos and Senior Parole Officer D. Estwick, have moved to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted. For the reasons that follow, I recommend that defendants' motion be granted.
The following facts are drawn primarily from Rodriguez's complaint filed on August 30, 2018, and his opposition to defendants' motion to dismiss filed on October 18, 2019. See, e.g., Vlad-Berindan v. MTA N.Y.C. Transit, No. 14-CV-675 (RJS), 2014 WL 6982929, at *6 (S.D.N.Y. Dec. 10, 2014) ("In evaluating the legal sufficiency of a pro se plaintiff's claims, a court may rely on the plaintiff's opposition papers."). Additionally considered are matters of which the Court may take judicial notice and are accepted as true for purposes of this motion.
Since 2010, Rodriguez was the tenant and leaseholder of an apartment in a Bronx residential building on West 262nd Street. Complaint ("Compl."), Dkt. No. 2, at 10.
On June 16, 2015, during a weekly phone call between Rodriguez and Ramos mandated by the conditions of his parole, Ramos directed Rodriguez to vacate his apartment. Id. at 9-10. Ramos informed Rodriguez that Mota had called him to say that she was afraid to live with Rodriguez. Id. at 10. The same day, Rodriguez met with Ramos and Senior Parole Officer D. Estwick—Ramos's supervisor— presumably because Rodriguez objected to Ramos's instruction. See id. at 11 (Rodriguez told Ramos: "If [Mota] is afraid to live with me, the door is open and they should leave my house."). After the meeting, Ramos instructed Rodriguez to relocate to the residence of his mother for one week. Id. at 9, 11. Following his departure from the apartment, Rodriguez alleges that Mota called him on or about June 21, 2015 to demand money, claiming that Ramos told her the apartment was hers. Id. at 11. After Rodriguez gave Mota two days to vacate the apartment, she threatened to "put [a] fake domestic violence charge against [him]." Id. at 11.
Later, during a June 23, 2015 phone call, Rodriguez informed Ramos that Mota had threatened him with the charges. Id. Ramos replied that if Mota did bring such charges against Rodriguez, Ramos would "send [him] to Rikers Island for six months." Id. Further, Ramos "conveyed that he would not be moving [Rodriguez] back into [his] apartment," thereby "taking the law into his own hands by violating [Rodriguez's] home." Id. at 12. Two days later, Rodriguez received a phone call from a police officer at the 50th Precinct regarding a dispute arising from his apartment. Id. Believing that Mota had acted on her threats to bring fake charges against him, Rodriguez "went on the run" and lived as a homeless fugitive. Id.
Eventually, Mota reached out to Rodriguez to say that she missed him, and the couple married on August 10, 2015 at City Hall in Manhattan. Id. When Rodriguez's landlord called in May 2016 to inform him that his rent was three months in arrears, Rodriguez issued the landlord a check for $3,500. Id. at 13, 28-30. Given that he was the leaseholder, Rodriguez stated that it was "still [his] obligation[] to pay the monthly expenses including rental payments." Id. at 13.
On June 25, 2015, Rodriguez was declared delinquent on parole and a parole warrant was issued. Id. at 13; Rodriguez v. Stanford, No. 2017-0614, 59 Misc.3d 1234(A), 2017 WL 9534735 at *1 (Sup. Ct. Jefferson Cnty. July 10, 2017), aff'd, 162 A.D.3d 1557 (4th Dep't 2018), leave to appeal denied, 2018 WL 4355126 (Sept. 13, 2018)). A Violation of Release Report signed by Ramos and Estwick on July 1, 2015, laid out 11 charges against Rodriguez, including that he had violated conditions of his release by failing to report to his parole officer and that he assaulted and threatened Mota. Declaration of Deanna L. Collins dated July 30, 2019 ("Collins Aff."), Dkt. No. 22, Exh. D (Violation of Release Report ("VORR") dated July 1, 2015). The VORR also stated that Rodriguez "failed to comply" with a special condition issued by Ramos that Rodriguez not have any contact with Mota. Id.
On July 1, 2016, Rodriquez had his preliminary parole revocation hearing, during which Ramos allegedly falsely testified that the apartment "belonged to Francine Mota," in an attempt, according to Rodriguez, to "cover up his mistakes." Compl. at 13.
Rodriguez claims that, because of Ramos's actions, his parole was revoked, he lost personal property, and he was left with an $11,500 judgment to his landlord. Compl. at 14. Several days before his parole revocation hearing, on August 23, 2016, Rodriguez filed a complaint with the New York State Department of Corrections and Community Supervision accusing Ramos of "having an affair with his wife" and attributing his expulsion from his apartment to Ramos's alleged affair. Id. at 6. Rodriguez received a phone call from Rodney Young, the Regional Director for Parole, stating that the allegations were being "handled and taken seriously," but, at the time he filed the instant action, he had not heard any follow-up to the complaint. Id.
After his parole revocation hearing and sentencing, Rodriguez filed an Article 78 petition in New York state court seeking to withdraw his guilty plea on the basis that he did not make it knowingly and voluntarily, and objecting to the ALJ's time assessment as excessive and improper. Rodriguez, 2017 WL 9534735 at *1. His petition was denied and dismissed. Id. at 2. Subsequently, the judgment was affirmed by the Fourth Department, and leave to appeal was denied by the Court of Appeals. Rodriguez v. Stanford, 162 A.D.3d 1557, 74 N.Y.S.3d 902 (4th Dep't. 2018), leave to appeal denied, 32 N.Y.3d 904, 109 N.E.3d 1158 (2018).
Rodriguez alleges that the Department of Social Services "unreasonabl[y]" denied him access to medications that he needs to treat a serious condition. Compl. at 5.
Rodriguez initially filed a complaint in the Southern District of New York on August 30, 2018, while he was a prisoner at Cayuga Correctional Facility. See id. at 46.
On April 30, 2019, Judge Caproni issued an Order of Service dismissing Rodriguez's § 1983 claims against the Department of Parole and the Department of Social Services as barred by the Eleventh Amendment and directing service upon the remaining defendants, Ramos and Estwick. Order of Service dated April 30, 2019, Dkt. No. 15 at 2. The same day, Judge Caproni referred the case to me for general pretrial supervision and any dispositive motions requiring a report and recommendation. Order of Reference dated April 30, 2019, Dkt. No. 16.
On July 30, 2019, defendants moved to dismiss the complaint, accompanied by a memorandum of law, declaration of Deanna L. Collins, and attached exhibits. Motion to Dismiss, Dkt. No. 20; Memorandum of Law ("Def. Mem."), Dkt. No. 21; Collins Aff. One month later, on August 30, I directed Rodriguez to file papers opposing the motion by September 27, 2019, or the Court would consider the motion to be unopposed. Order dated August 30, 2019, Dkt. No. 24. On September 20, Rodriguez requested an extension of time to file a response to defendants' motion, which the Court granted. See Dkt. Nos. 26-27. Rodriguez filed his opposition to defendants' motion on October 18, 2019, and defendants replied on November 4, 2019. Plaintiff's Opposition to Defendants' Motion to Dismiss ("Pl. Mem."), Dkt. No. 28; Defendants' Reply Memorandum of Law in Support of Motion to Dismiss ("Def. Reply"), Dkt. No. 29.
Under Rule 12(b)(6), a complaint may be dismissed for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). To survive a Rule 12(b)(6) motion, a plaintiff must plead facts in his complaint that "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when there exists "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). This standard requires a plaintiff's pleadings to sufficiently "nudge[ ] [his] claims across the line from conceivable to plausible." Twombly, 550 U.S. at 570.
When considering a motion to dismiss, a court must accept all factual allegations in the complaint as true and draw all reasonable inferences in favor of a plaintiff. Littlejohn v. City of N.Y., 795 F.3d 297, 306 (2d Cir. 2015) (citing Ofori-Tenkorang v. Am. Int'l Grp., Inc., 460 F.3d 296, 300 (2d Cir. 2006)). "A complaint need not include `detailed factual allegations,' but it must contain more than mere `labels and conclusions' or `a formulaic recitation of the elements of a cause of action.'" JCG v. Ercole, No. 11-CV-6844 (CM) (JLC), 2014 WL 1630815, at *5 (S.D.N.Y. Apr. 24, 2014) (quoting Iqbal, 556 U.S. at 678) (internal quotations omitted), adopted by 2014 WL 2769120 (June 18, 2014). A complaint containing only "conclusory allegations or legal conclusions masquerading as factual conclusions" will not defeat a motion to dismiss. Womack v. Capital Stack, LLC, No. 18-CV-4192 (ALC), 2019 WL 4142740, at *3 (S.D.N.Y. Aug. 30, 2019) (quoting Faber v. Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011)).
In the context of a Rule 12(b)(6) motion, courts "may permissibly consider documents other than the complaint. . . [including d]ocuments that are attached to the complaint or incorporated in it by reference. . . ." Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007). Courts may also consider judicially noticeable materials, such as public records and official state records. See, e.g., Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 75 (2d Cir. 1998) ("[A] district court may rely on matters of public record in deciding a motion to dismiss under Rule 12(b)(6), including case law and statutes."); Jackson v. Ramirez, No. 15-CV-617 (GHW), 2016 WL 796854, at *5 n.2 (S.D.N.Y. Feb. 22, 2016) (taking "judicial notice [in a Rule 12(b)(6) motion] of an official state record related to plaintiff's parole revocation hearing as a fact not reasonably subject to dispute because it `can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned'") (citing Fed. R. Evid. 201(b)(2)), aff'd, 691 F. App'x 45 (2d Cir. 2017)).
"A document filed pro se is to be liberally construed." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976) (internal quotations omitted)). Courts within this Circuit grant pro se litigants a "`special solicitude' by interpreting a complaint filed pro se `to raise the strongest claims that it suggests.'" Hardaway v. Hartford Pub. Works Dep't, 708 F. App'x 45, 46 (2d Cir. 2018) (quoting Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011)). This standard is particularly significant when a pro se plaintiff alleges civil rights violations. Linares v. Annucci, 710 F. App'x 467, 469 (2d Cir. 2017).
Nonetheless, "even pro se plaintiffs asserting civil right[s] claims cannot withstand a motion to dismiss unless their pleadings contain factual allegations sufficient to raise a `right to relief above the speculative level.'" MacAlister v. Millennium Hotels & Resorts, No. 17-CV-6189 (ER), 2019 WL 3765825, at *3 (S.D.N.Y. Aug. 9, 2019) (quoting Twombly, 550 U.S. at 555) (internal quotation omitted). "Dismissal of a pro se complaint is. . . appropriate where a plaintiff has clearly failed to meet minimum pleading requirements." Kinsey v. Bloomberg, No. 12-CV-8936 (PAE) (JCF), 2014 WL 630670, at *3 (S.D.N.Y. Feb. 18, 2014).
Section 1983 guards against the deprivation of an individual's constitutional rights by someone acting under the color of state law. See, e.g., AK Tournament Play, Inc. v. Town of Wallkill, No. 09-CV-10579 (LAP), 2011 WL 197216, at *2 (S.D.N.Y. Jan. 19, 2011). The statute "offers a means of vindicating" rights conferred by federal law or the United States Constitution. Id. A plaintiff seeking relief under § 1983 must allege that "(1) the challenged conduct was attributable at least in part to a person who was acting under color of state law and (2) the conduct deprived the plaintiff of a right guaranteed under the Constitution of the United States." Floyd v. City of New York, No. 16-CV-8655 (LAP), 2018 WL 4360773, at *5 (S.D.N.Y. Aug. 2, 2018) (quoting Snider v. Dylag, 188 F.3d 51, 53 (2d Cir. 1999) (citation omitted)).
Defendants move to dismiss Rodriguez's complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Specifically, they argue that (1) Rodriguez's § 1983 claim regarding his allegedly unlawful displacement from the apartment is barred by the statute of limitations and is in any event not cognizable (Def. Mem. at 8-10, 12-14; Def. Reply at 2-9); (2) all other claims should be dismissed because Rodriguez failed to address them in his opposition to defendants' motion to dismiss (Def. Reply at 9-10); (3) the complaint does not allege the personal involvement of Estwick with respect to the medical coverage claim (Def. Mem. at 10-12); (4) the complaint fails to state a cognizable § 1983 claim as to his medical coverage (Def. Mem. at 16-20); (5) the complaint fails to state a claim under the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, or the Housing and Community Development Act (Def. Mem. at 20-23); (6) all claims alleging violations under New York state law must be dismissed (Def. Mem. at 23); (7) the Eleventh Amendment prohibits any claims alleged in the complaint against defendants in their official capacities (Def. Mem. at 24); (8) Rodriguez is collaterally estopped from bringing any claims regarding the outcome of his parole revocation proceedings (Def. Mem. at 24-25); and (9) defendants are entitled to qualified immunity (Def. Mem. at 12, 14-20). I will address each of these arguments in turn.
Rodriguez contends that Ramos unlawfully displaced him from the residence for which he was the principal lease holder. Compl. at 6, 8-14. According to Rodriguez, Ramos's orders that he leave his apartment following Mota's claims that she was afraid to live with Rodriguez were an "abuse of discretion" motivated, at least in part, by the fact that Ramos was "having an affair" with Mota. Compl. at 6, 8-14.
In New York, the statute of limitations applicable to claims brought under § 1983 is three years. Patterson v. Cnty. of Oneida, N.Y., 375 F.3d 206, 225 (2d Cir. 2004) (citations omitted). A "§ 1983 claim accrues when the plaintiff knows or has reason to know of the injury that constitutes the basis of his action." Syfert v. City of Rome, 768 F. App'x 66, 68 (2d Cir. 2019) (citing Pearl v. City of Long Beach, 296 F.3d 76, 80 (2d Cir. 2002)). The burden of proof in establishing a statute of limitations defense is born by defendants, so "a pre-answer motion to dismiss on this ground may be granted only if it is clear on the face of the complaint that the statute of limitations has run." Fargas v. Cincinnati Mach., LLC, 986 F.Supp.2d 420, 427 (S.D.N.Y. Dec. 12, 2013) (citing Staehr v. Hartford Fin. Servs. Grp., Inc., 547 F.3d 406, 425 (2d Cir. 2008)).
The relevant question here is when Rodriguez "knew or should have known" of his purported injury, i.e., his displacement from the apartment. Rodriguez initiated this action on August 30, 2018.
Accepted as true, the factual allegations in the complaint demonstrate on their face that, despite his allegation that "[he] did not [find] out that Ramos had made [the] decision [to keep him from entering his home] until [he] received the Violation of Release Report on the date of June 27, 2016," Compl. at 12, Rodriguez knew of the injury giving rise to the claim, that is, Ramos's order to leave his residence, in June 2015. See, e.g., id. at 22 ("[H]e intended to injure me, and has from the date of June 16, 2015").
In his opposition to the motion to dismiss, Rodriguez does not argue that his claim was timely filed by virtue of his receipt of the VORR in July 2016, but instead contends that his claim should be subject to equitable tolling. Pl. Opp. at 1-3. This argument is without merit.
The Second Circuit has found that the doctrine of equitable tolling applies under "rare and exceptional circumstances" to § 1983 claims filed outside of the three-year statute of limitations. Moses v. Westchester Cty. Dep't of Corr., 739 F. App'x 66, 67 (2d Cir. 2018) (quoting Walker v. Jastremski, 430 F.3d 560, 564 (2d Cir. 2005) (quotations omitted)). "Federal courts deciding § 1983 actions generally apply the tolling provisions of the state in which the action is brought." Moses, 951 F. Supp. 2d at 453-54 (citing Wallace v. Kato, 549 U.S. 384, 394 (2007)). However, courts may also apply the doctrine of equitable tolling under federal common law when application of the more limited New York standard would be "contrary to the federal policy goals of compensation of persons injured by a deprivation of federal rights and the prevention of abuses of power by those acting under color of state law." Id. at 454 (citing Singleton v. City of New York, 632 F.2d 185, 189-91 (2d Cir. 1980) (internal citations omitted)).
Equitable tolling may be warranted under New York law where a plaintiff can demonstrate that he was "induced by fraud, misrepresentations or deception to refrain from filing a timely action." Abbas v. Dixon, 480 F.3d 636, 642 (2d Cir. 2007) (quoting Doe v. Holy See (State of Vatican City), 17 A.D.3d 793, 794 (3d Dep't 2005); Kotlyarsky v. New York Post, 757 N.Y.S.2d 703, 706 (N.Y. Sup. Ct. 2003) (internal quotations omitted)). Alternatively, a plaintiff must demonstrate that he was "prevented in some extraordinary way from exercising his rights." Pearl, 296 F.3d at 85 (quoting Miller v. International Telephone & Telegraph Corp., 755 F.2d 20, 24 (2d Cir. 1985) (internal quotations omitted)). In either instance, equitable tolling is permitted so long as it would have been "impossible for a reasonably prudent person to learn about his or her cause of action." Id. (citing International Telephone & Telegraph Corp., 755 F.2d at 24).
Under federal common law, a party seeking equitable tolling must prove "(1) that he has been pursuing his rights diligently and (2) that some extraordinary circumstance stood in his way and prevented timely filing." Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGulielmo, 544 U.S. 408, 418 (2005) (internal quotations omitted)). "The term `extraordinary' refers not to the uniqueness of a party's circumstances, but rather to the severity of the obstacle impeding compliance with a limitations period." Harper v. Ercole, 648 F.3d 132, 137 (2d Cir. 2011) (citing Bolarinwa v. Williams, 593 F.3d 226, 231-32 (2d Cir. 2010) and Diaz v. Kelly, 515 F.3d 149, 154 (2d Cir. 2008)). This prong "is met only where the circumstances causing [p]laintiff's delay are both extraordinary and beyond [his] control." Maack v. Wyckoff Heights Med. Ctr., No. 15-CV-3951 (ER), 2017 WL 4011395, at *3 (S.D.N.Y. Sept. 11, 2017) (citing Menominee Indian Tribe of Wisconsin v. United States, 136 S.Ct. 750, 756 (2016) (internal quotations omitted)), aff'd, 740 F. App'x 1 (2d Cir. 2018).
Here, Rodriguez argues that he took reasonable steps to diligently pursue his claim in federal court. In particular, he alleges that he filed a "notice of claim" on March 13, 2017, believing that filing such a notice was a "condition precedent" to bringing his claims in federal court because law clerks, law librarians, and legal research he conducted through the prison's law library instructed him that such a step was necessary. Pl. Opp. at 2. Moreover, he contends that a decision on his notice of claim was made on August 29, 2017, but was not mailed to him until August 6, 2018. Id. Finally, before receiving the decision, in or around June 2018, Rodriguez maintains that he was placed into the special housing unit of the prison in which he was incarcerated due to his attempts to contact the Court of Claims, which severely limited his access to legal resources. Id.
The circumstances alleged by Rodriguez do not warrant equitable tolling under New York law or federal common law. First, Rodriguez does not assert that he was induced by fraud, misrepresentation, or deception to believe that he must first have filed a notice of claim in New York before proceeding to federal court. Further, he has not demonstrated that his circumstances were such that a reasonably prudent person could not have discovered that he was able to file his claim directly in federal court. Thus, his circumstances fail to meet the strict New York standard for applying equitable tolling.
Rodriguez's delay in filing the present action based on his mistaken belief about the law also does not meet the standard of "extraordinary circumstance" to warrant equitable tolling under federal common law. Even when appearing pro se, a party's "mistaken understanding of how to proceed with his claim does not constitute an extraordinary circumstance that supports equitable tolling." Wright v. Rensselaer Cty. Jail, 771 F. App'x 58, 61 (2d Cir. 2019) (citing Jenkins v. Greene, 630 F.3d 298, 305 (2d Cir. 2010) ("[A] mistaken belief [about the law] is not a basis for equitable tolling.")). "Equitable tolling is generally not available where the circumstances that a plaintiff claims prevented him from timely filing were within the plaintiff's control." Myers v. New York, No. 14-CV-1492, 2016 WL 2636295, at *5 (N.D.N.Y. May 9, 2016) (citing Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001)).
Further, "[c]ourts have found that solitary confinement, lock-downs, and restricted access to the law library do not qualify as extraordinary circumstances warranting equitable tolling." Brown v. Bullis, No. 9:11-CV-647, 2013 WL 1294488, at *4 (N.D.N.Y. Mar. 26, 2013). See also Belot v. Burge, No. 03-CV-1478 (WHP) (MHD), 2005 WL 6777981, at *8 (S.D.N.Y. July 14, 2005) (collecting cases). Even if his placement in the special housing unit was found to have been a significant obstacle, Rodriguez alleges that he was transferred into this unit in June 2018, almost three years after the incidents that gave rise to the injury, and so he cannot establish that there was a "causal relationship between the extraordinary circumstances claimed and the lateness of the filing." Bullis, 2013 WL 1294488, at *4 (quoting Hizbullahankhamon v. Walker, 255 F.3d 65, 75 (2d Cir. 2001) (quotation marks omitted)). Therefore, Rodriguez's tolling argument is without merit.
Rodriguez requests that his opposition to defendants' motion be treated as an amended complaint, because the filing sets forth facts in support of his argument for equitable tolling. Pl. Opp. at 3. As Rodriguez is proceeding pro se, the Court would ordinarily recommend that he be given leave to amend to replead this claim. See Grullon v. City of New Haven, 720 F.3d 133, 139 (2d Cir. 2013) (district court generally should not dismiss pro se complaint without granting at least one opportunity to replead factually insufficient claims); Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (same). Here, however, the Court is of the view that any amendment would be futile for the reasons set forth in this section of the Report (and in any event his opposition papers do not provide additional facts to warrant further amendment). See, e.g., Curcione, 657 F.3d at 123 ("Where a proposed amendment would be futile, leave to amend need not be given."); Lucente v. Int'l Bus. Machines Corp., 310 F.3d 243, 258 (2d Cir. 2002) ("One appropriate basis for denying leave to amend is that the proposed amendment is futile. . . [that is,] if the proposed claim could not withstand a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6).") (internal citations omitted). Accordingly, I recommend that the Court decline to grant Rodriguez leave to amend his claim related to the allegedly unlawful displacement from his apartment.
Independent of the statute of limitations defense, defendants argue, and the Court agrees, that Rodriguez's § 1983 claim as to his displacement from the apartment should also be dismissed because he has failed to state a cognizable claim. Construed liberally, Rodriguez's § 1983 claim as to the apartment could be interpreted as raising a claim related to the Takings Clause of the Fifth Amendment to the United States Constitution or the Due Process Clause of the Fourteenth Amendment. The Takings Clause, as applied to the states through the Fourteenth Amendment, proscribes against government "takings" of "private property. . . for public use, without just compensation." U.S. Const. Amend. V; Palazzo v. Rhode Island, 533 U.S. 606, 611 (2011).
In property actions, "whether a landowner has been deprived of all economically viable use of his property [to trigger a Fifth Amendment analysis] is a predominately factual question." City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 720 (1999). However, it is well established that "a government's seizure of private property under a power other than that of eminent domain does not require compensation, nor does it implicate the Fifth Amendment." Maxineau v. City of New York, No. 11-CV-2657 (ENV) (LB), 2013 WL 3093912, at *3 (E.D.N.Y. June 18, 2013) (citing Bennis v. Michigan, 516 U.S. 442, 452 (1996) ("The government may not be required to compensate an owner for property which it has already lawfully acquired under the exercise of governmental authority other than the power of eminent domain.")). When an interest in property is "imperfect or qualified in nature," courts have upheld "police regulations by the state." Nicchia v. People of the State of New York, 254 U.S. 228, 230 (1920). See generally Medtronic, Inc. v. Lohr, 518 U.S. 470, 475 (1996) ("Throughout our history the several States have exercised their police powers to protect the health and safety of their citizens.").
The Due Process Clause of the Fourteenth Amendment requires that the government provide "notice and opportunity for a hearing appropriate to the nature of the case" before depriving an individual of liberty. Newman v. Annucci, No. 3:17-CV-918, 2018 WL 4554494, at *5 (N.D.N.Y. Sept. 21, 2018) (citing Boddie v. Connecticut, 401 U.S. 371, 378 (1971)). Individuals released on parole are only entitled to "conditional liberty properly dependent on observance of special parole restrictions" that are "not applicable to other citizens." Morrissey v. Brewer, 408 U.S. 471, 482 (1972). See also Trisvan v. Annucci, 284 F.Supp.3d 288, 296 (E.D.N.Y. 2018). Indeed, "even fundamental constitutional rights may be abridged to serve reasonable and necessary penological interests." Id. (collecting cases upholding limitations on right to freedom of association, familial associations, and travel for parolees). Any restrictions on a parolee's rights must be "reasonably and necessarily related to the interests that the Government retains after his conditional release." Birzon v. King, 469 F.2d 1241, 1243 (2d Cir. 1972). "In the parole context. . . the Government retains a substantial interest in insuring that its rehabilitative goal is not frustrated and that the public is protected from further criminal acts by the parolee." Muhammad v. Evans, No. 11-CV-2113 (CM), 2014 WL 4232496, at *9 (S.D.N.Y. Aug. 15, 2014) (citing id.) (internal citations omitted). "[C]onditions of parole are discretionary and not subject to judicial review in the absence of a showing that the board or its agents acted in an arbitrary or capricious manner." Robinson v. Pagan, No. 05-CV-1840 (DAB), 2006 WL 3626930, at *6 (S.D.N.Y. Dec. 12, 2006) (citing Pena v. Travis, No. 01-CV-8534 (SAS), 2002 WL 31886175, at *2 (S.D.N.Y. Dec. 27, 2002)).
Here, Rodriguez arguably had a property interest in his apartment, as his name was included on the lease, along with that of Mota and her child. Compl. at 10, Exh. A at 25-26. He does not allege, however, that the procedures by which his parole conditions were imposed were inadequate. Beyond stating that he was ordered to vacate his apartment by Ramos and received the VORR in 2016, one year after he absconded, "[h]e provides no facts regarding how the conditions were imposed, what notice he received, or whether he had an opportunity to be heard concerning them." Newman, 2018 WL 4554494, at *6. Thus, he has not stated a procedural due process claim upon which relief may be granted.
Moreover, the actions Ramos allegedly undertook to prevent Rodriguez from entering his apartment were made pursuant to the conditions of parole issued on June 16, 2015 after Ramos was told by Mota that she feared being around Rodriguez. See Collins Dec., Exh. A at 2-3. Two "special conditions" of Rodriguez's release to parole supervision state that he was prohibited from contacting Mota. Id. ("I WILL NOT have contact with the following individual:
In addition, Rodriguez's parole conditions are not reviewable by this Court in the absence of an allegation that they are arbitrary or capricious, Robinson, 2006 WL 3626930, at *6, and similar conditions have been upheld by courts in comparable contexts for parolees who have been charged with or suspected of domestic violence. See, e.g., Muhammad, 2014 WL 4232496, at *8 (upholding restrictions on association and communication with woman for whom plaintiff was previously convicted of domestic violence offense); Drogheo v. Fieno, 785 F.Supp.2d 16, 18 (W.D.N.Y. 2011) (upholding condition that plaintiff have no contact with wife based on domestic violence charge plaintiff alleged was previously dismissed and sealed by prosecuting district attorney). Courts have also found more extreme curtailment of liberty to be "objectively reasonable" in the context of domestic violation charges, such as in cases finding probable cause for arrest, due to the "extraordinarily difficult judgment decisions that law enforcement officers must make in domestic violence situations." Lee v. Sandberg, 136 F.3d 94, 104 (2d Cir. 1997).
Rodriguez makes one bare allegation that Ramos imposed the condition because he was having an affair with Mota. Compl. at 6. He does not allege any more facts relevant to this theory that would "nudge [the] claims across the line from conceivable to plausible," however, and nowhere else in the complaint does he claim that Ramos's actions in keeping him from returning to his apartment were arbitrary or capricious. Twombly, 550 U.S. at 570. Rodriguez had a qualified right to liberty as a parolee and Ramos had a legitimate interest in setting conditions that would protect the public and rehabilitate Rodriguez. As such, Rodriguez has failed to state a cognizable §1983 claim as to the displacement from his apartment.
Defendants allege that all of Rodriguez's claims apart from his § 1983 apartment claim must be dismissed because his opposition to defendants' motion to dismiss addressed only that issue. Def. Reply at 9 (citing Simon v. City of New York, No. 14-CV-8391 (JMF), 2015 WL 4092389, at *2 (S.D.N.Y. July 6, 2015) (collecting cases); Jordan v. Fed. Bureau of Prisons, No. 09-CV-8561 (ALC), 2013 WL 1143617, at *7 (S.D.N.Y. Mar. 19, 2013); Rodriguez ex rel. J.J.T. v. Astrue, No. 10-CV-9644 (PAC) (JLC), 2011 WL 7121291, at *4 (S.D.N.Y. July 25, 2011), adopted by 2012 WL 292382 (Jan. 31, 2012); Guzman v. Macy's Retail Holdings, Inc., No. 09-CV-4472 (PGG), 2010 WL 1222044, at *8 (S.D.N.Y. Mar. 29, 2010) ("[F]ailure to adequately brief an argument constitutes waiver of that argument" at motion to dismiss stage)).
However, failure to respond to a Rule 12(b)(6) motion does not, in itself, warrant dismissal of the complaint. See McCall v. Pataki, 232 F.3d 321, 322-23 (2d Cir. 2000). "[T]he sufficiency of a complaint is a matter of law that the court is capable of determining based on its own reading of the pleading and knowledge of the law." Goldberg v. Danaher, 599 F.3d 181, 184 (2d Cir. 2010) (citing McCall, 232 F.3d at 323 ("If a complaint is sufficient to state a claim on which relief can be granted, the plaintiff's failure to respond to a Rule 12(b)(6) motion does not warrant dismissal."). See also, e.g., Carrington v. Mota, No. 16-CV-8061 (GBD) (JLC), 2017 WL 3835883, at *7 (S.D.N.Y. Aug. 31, 2017), adopted by 2017 WL 6335903 (Dec. 8, 2017); Thompson v. City of New York, No. 16-CV-824 (PKC), 2017 WL 1929552, at *1 (S.D.N.Y. May 9, 2017); Rivera v. Children's & Women's Physicians of Westchester, LLP, No. 16-CV-714 (PGG), 2017 WL 1065490, at *6 (S.D.N.Y. Mar. 18, 2017). Accordingly, with respect to the claims Rodriguez at least arguably raised in his complaint but did not address in his opposition, the Court will "assume the truth of [the] pleading's factual allegations and test only [their] legal sufficiency." McCall, 232 F.3d at 322.
Rodriguez alleges that he was unlawfully denied critical medications when the Department of Social Services, following a "direct order" by Ramos, canceled his medical benefits. Compl. at 5. Ramos's order, issued in an "attempt to get [Rodriguez] into custody," was "cruel and unusual" according to Rodriguez, because the cancellation of his benefits caused his "ailment to be critical." Id.
Defendants argue that Rodriguez's medical coverage cancellation claims as to Estwick should be dismissed because he does not sufficiently plead her personal involvement in the alleged constitutional violations. Def. Mem. at 10. "It is well settled that, in order to establish a defendant's individual liability in a suit brought under § 1983, a plaintiff must show. . . the defendant's personal involvement in the alleged constitutional deprivation." Grullon, 720 F.3d at 138. See also Iqbal, 556 U.S. at 676 ("[V]icarious liability is inapplicable to. . . § 1983 suits."). To establish personal involvement, the plaintiff must demonstrate that:
Grullon, 720 F.3d at 139 (citing Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)). "`Personal involvement is a question of fact and must be satisfied as to each individual defendant,' including defendants who are alleged to have acted in a supervisory capacity." McNair v. Ponte, No. 16-CV-4646 (PGG) (BCM), 2018 WL 3300675, at *6 (S.D.N.Y. Feb. 22, 2018) (quoting Powell v. City of New York, No. 14-CV-9937 (PAC) (BCM), 2016 WL 4159897, at *9 (S.D.N.Y. July 14, 2016), adopted by 2016 WL 4147203 (Aug. 3, 2016)), adopted by 2018 WL 1384522 (Mar. 19, 2018). In the context of supervisory personnel, personal involvement "is established when the [supervisor] has actual or constructive notice of unconstitutional practices and demonstrates gross negligence or deliberate indifference by failing to act." Blandon v. Aitchison, No. 17-CV-65 (KMK), 2019 WL 1206370, at *3 (S.D.N.Y. Mar. 14, 2019) (quoting Rahman v. Fisher, 607 F.Supp.2d 580, 585 (S.D.N.Y. 2009) (internal quotations omitted)).
Rodriguez's allegations concerning Estwick's involvement in the § 1983 violation with respect to the cancellation of Rodriguez's medical coverage are sparse. Rodriguez alleges only that Estwick is "a supervisor that did so authorize said actions complained of in this action," Compl. at 2, and that he had a meeting with Estwick on June 16, the day Ramos informed Rodriguez that he would have to leave his apartment. Id. at 11; Pl. Reply at 3. Rodriguez also alleges that "defendant had an affirmative duty to intervene on behalf of the plaintiff, whose constitutional rights were being abrogated and violated in their presence by a co-worker[]. Defendants failed to intervene or prevent the unlawful acts of conduct herein. . . ." Compl. at 15.
Under a liberal interpretation of these allegations, Rodriguez could be arguing that Estwick "authorize[d], order[ed], or help[ed Ramos] to do unlawful acts," Terebesi v. Torresso, 764 F.3d 217, 234 (2d Cir. 2014), that she failed to remedy the wrong after being informed of it, or that she was grossly negligent in supervising Ramos, who committed the unlawful act. However, any of these interpretations would be conclusory at best. See, e.g. Holland v. City of N.Y., No. 14-CV-5517 (AT), 2016 WL 3636249, at *13 (S.D.N.Y. June 24, 2016) ("Conclusory accusations regarding a defendant's personal involvement in the alleged violation, standing alone, are not sufficient, and supervisors cannot be held liable based solely on the alleged misconduct of their subordinates.") (internal citations omitted). Rodriguez offers no facts as to the first theory beyond the bare assertion that Estwick authorized Ramos's actions. See, e.g., Wilson v. Celestin, No. 17-CV-5592 (MKB), 2018 WL 2304762, at *3 (E.D.N.Y. May 18, 2018) (failure to state claim against defendant where only allegation was that conduct was "approved" by supervisor). Moreover, as discussed in the next section of this Report, Rodriguez has failed to allege facts sufficient to state a constitutional violation on the part of Ramos with respect to the medical coverage claims. Therefore, he has not demonstrated that there was any underlying "unlawful act" for which Estwick could be liable through failure to remedy or gross negligence. Consequently, Rodriguez has failed to plausibly allege that Estwick was personally involved in the alleged constitutional violations concerning his medical coverage.
Defendants argue that Rodriguez has failed to state a claim under either the Eighth or Fourteenth Amendment with respect to his medical coverage as "there are no Supreme Court or Second Circuit cases that hold that parole officers may not inform a social services agency that a parolee has absconded from parole; [and] there is no clearly established right of parolees to receive medical care or services when they are no longer under state supervision." Def. Mem. at 16.
Rodriguez's claims as to his medical coverage relate to events occurring while he was released on parole, so they are "appropriately analyzed under the Fourteenth Amendment's Due Process Clause, not the Eighth Amendment." Stovall v. Wilkins, No. 15-CV-2163 (KMK), 2016 WL 5478509, at *3 (S.D.N.Y. Sept. 29, 2016) (citing Ciccone v. Ryan, No. 14-CV-1325 (NSR), 2015 WL 4739981, at *3 (S.D.N.Y. Aug. 7, 2015)). As discussed below, Rodriguez has failed to state a claim under either the substantive or procedural due process clauses of the Fourteenth Amendment.
Within the Second Circuit, there are two recognized "exceptions to the general rule that the government does not have a general duty under the Constitution to protect an individual from harm: (1) when a government entity has an obligation to provide such protection `because of a special relationship,' or (2) if `the governmental entity itself has created or increased the danger to the individual.'" McNair v. Harlem Hosp. Med. Dir., No. 19-CV-203 (CM), 2019 WL 2176299, at *1-2 (S.D.N.Y. May 17, 2019) (citing Ying Jing Gan v. City of New York, 996 F.2d 522, 533 (2d Cir. 1993) (citations omitted)). While the latter involves "the state and [a] private assailant," the former "arises from the relationship between the state and a particular victim." Id. (citing Pena v. DePrisco, 432 F.3d 98, 109 (2d Cir. 2005)). The State assumes a "special relationship" when holding an individual in custody, "such as a prison and inmate or a mental institution and involuntarily committed patient." Ying Jing Gan, 996 F.2d at 533.
McNair, 2019 WL 2176299, at *2 (quoting Ciccone 2015 WL 4739981 at *3 (internal quotations and citations omitted)). See also Jacobs v. Ramirez, 400 F.3d 105, 106 (2d Cir. 2005) ("A parolee, although not in the state's physical custody, is nonetheless in its legal custody, and his or her freedom of movement, while not as restricted as that of an incarcerated prisoner, is nonetheless somewhat curtailed."). But see George v. Rockland State Psychiatric Ctr., No. 10-CV-8091 (NSR), 2014 WL 5410059, at *8 (S.D.N.Y. Oct. 23, 2014) (special relationship did not exist between parolee and state where parolee "free to find his own medical treatment [at] specific[] [hospital."). In the parole context, "because the limitations imposed by the state are minimal, so too are the duties it assumes." Jacobs, 400 F.3d at 107 (citing Deshaney v. Winnebago County Dept. of Social Services, 489 U.S. 189, 200 (1989)).
To qualify as a substantive due process violation, an action must "be so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience." Matican v. City of New York, 524 F.3d 151, 155 (2d Cir. 2008) (quoting Cty. Of Sacramento v. Lewis, 523 U.S. 833, 848 n.8 (1998)). This requirement "screens out all but the most significant constitutional violations." Matican, 524 at 155. While "negligently inflicted harm is categorically beneath the threshold of constitutional due process. . . conduct intended to injure in some way[,] unjustifiable by any government interest[,] is the sort of social action most likely to rise to the conscience-shocking level." Lewis, 523 U.S. at 849.
There may be a minimal duty of care for transitional medical coverage when individuals are released from state custody. See, e.g., Charles v. Orange County, 925 F.3d 73, 81-85 (2d Cir. 2019) ("[D]espite the forward-looking nature of discharge planning, a claim for damages caused by the lack of it can be considered a claim for deprivation of in-custody care for purposes of the `special relationship' exception."); Lugo v. Senkowski, 114 F.Supp.2d 111, 115 (N.D.N.Y. 2000) ("The State has a duty to provide medical services for an outgoing [paroled] prisoner who is receiving continuing treatment at the time of his release for the period of time reasonable necessary for him to obtain treatment on his own behalf."). In Charles, the Second Circuit focused on discharge planning as "in-custody care," stating that, in theory, the facts of the matter did "not require [them] to reach the question of whether a State's duty of care extends beyond a detainee's release from custody." Charles, 925 F.3d at 83 n.8. In Lugo, which concerned a plaintiff who required follow-up surgery to a medical procedure he underwent while incarcerated, the court described that "[t]he State has a duty to provide medical services for an outgoing prisoner who is receiving continuing treatment at the time of his release for the period of time reasonably necessary for him to obtain treatment `on his own behalf.'" Lugo 114 F. Supp. 2d at 115 (citing Wakefield v. Thompson, 177 F.3d 1160, 1164 (9th Cir. 1999)). When a person is "in-custody," "deliberate indifference" to medical needs on part of a government actor is enough to reach the conscience-shocking standard. Charles, 925 F.3d at 86 (quoting Lewis, 523 U.S. at 849-50).
Here, the conduct at issue did not concern "transitional" or "in-custody" care. Although Rodriguez was in the legal custody of the state as a parolee whose liberty of movement was curtailed by the conditions of parole, Jacobs, 400 F.3d at 106, he was not "in custody" for purposes of the due process analysis. Importantly, Rodriguez does not allege that the state failed to provide him with discharge planning, and the Court infers that he was able to access his benefits for more than a year after his May 2015 release, as the complaint alleges that Rodriguez discovered his benefit coverage was canceled "on or about" June 7, 2016. Compl. at 5. Therefore, the present case can be distinguished from Lugo and Charles, and the "conscience shocking" standard cannot be met here by a mere showing of deliberate indifference.
Defendants correctly point out that Rodriguez failed to allege "the name of the medication, the condition it treated and any injury he sustained as a result of the alleged deprivation." Def. Mem. at 19. Construing the complaint liberally, however, the Court infers that Rodriguez was attempting to pick up his HIV medication. Compl. at 21; Exh. C at 37; Pl. Mem. at 3. It is indisputable that HIV is a "serious medical condition that requires medical treatment." Smith v. Carpenter, 316 F.3d 178, 185 (2d Cir. 2003). However, Rodriguez does not allege that he was unable to access the medication using his own funds or that he suffered any long-term negative side effects or consequences due to the cancellation of his medical coverage beyond the conclusory statement that it "did cause his ailment to be critical as it was and is always life threat[e]ning." Compl. at 5. Even if Ramos is considered to have a special relationship warranting a certain level of care as to Rodriguez's well-being, there is no evidence that Ramos took any other action that would have prevented Rodriguez from obtaining medications on his own. As opposed to an incarcerated individual, Rodriguez, as a parolee, was at liberty to obtain such medications by visiting a doctor or pharmacy of his choosing. While the Court is sympathetic to the vital role that medical benefits play for many individuals who need medication, under New York law Rodriguez became ineligible for the benefits following his parole violation in 2015. As such, the allegations do not "shock the contemporary conscience," and the complaint does not state a substantive due process claim.
For the purposes of determining procedural due process liability, the Court considers "whether the plaintiff possessed a liberty or property interest protected by the United States Constitution or federal statutes," and, if so, "what process was due before the plaintiff could be deprived of that interest." Green v. Bauvi, 46 F.3d 189, 194 (2d Cir. 1995). In determining whether a procedural due process violation has occurred, courts within the Second Circuit first consider the "threshold issue" of "whether the plaintiff has a property interest protected by the Constitution." Narumanchi v. Bd. of Trustees of Connecticut State Univ., 850 F.2d 70, 72 (2d Cir. 1988) (citing Board of Regents v. Roth, 408 U.S. 564 (1972)). If there is a protected interest, courts "ask[] what process was due to the plaintiff, and inquire[] whether that constitutional minimum was provided in the case under review." Id.
Generally, individuals have a property interest in welfare and medical benefits. "A recipient's property interest in continuing welfare benefits is well-established." Hart v. Westchester Cty. Dep't of Soc. Servs., 160 F.Supp.2d 570, 575 (S.D.N.Y. 2001) (citing Goldberg, 397 U.S. at 261-62 (1970)). As defendants note, however, under New York law, parole absconders are ineligible for benefits. Id. See N.Y. Comp. Codes R. & Regs. tit. 18, § 351.2 ("Any individual who is violating a condition of probation or parole imposed under Federal or State law" ineligible for public assistance). Additionally, New York law provides that an individual seeking to appeal a decision of the Department of Social Services is entitled to departmental review and the opportunity to a fair hearing. N.Y. Soc. Serv. Law § 22. This post-deprivation hearing, combined with "the availability of further review in the state courts in an Article 78 proceeding[,] have been found to be constitutionally adequate procedures to challenge adverse determinations in connection with government entitlement programs." Harris v. Yonkers Dep't of Soc. Servs., No. 19-CV-4626 (LLS), 2019 WL 2287715, at *3 (S.D.N.Y. May 28, 2019) (citing Banks v. HRA, No. 11-CV-2380 (JG), 2013 WL 142374, at *3 (E.D.N.Y. Jan. 11, 2013)).
It is well established that "a plaintiff in a section 1983 case is [generally] not required to exhaust his or her administrative remedies before bringing suit." Alba v. Ansonia Bd. of Educ., 999 F.Supp. 687, 690 (D. Conn. 1998) (citing Patsy v. Board of Regents of Florida, 457 U.S. 496, 501-02 (1982)). Importantly, however, this general rule does not apply "in a procedural due process suit if the plaintiff failed to avail himself or herself of the right to be heard, which is the very right being asserted." Id. Here, even if Rodriguez had a continued interest in his medical coverage following his parole violation, he does not allege that the procedures associated with the cancellation of his medical benefits were inadequate, as he does not allege to have sought a review or hearing in connection with his medical coverage benefits. "Having chosen not to pursue available administrative review, [Rodriguez] is hardly in a position to claim that such review denied him due process." Aronson v. Hall, 707 F.2d 693, 694 (2d Cir. 1983). Accordingly, Rodriguez has failed to state a claim upon which relief can be granted as to a procedural due process violation.
As to any claims made under Title II of the Americans with Disabilities Act ("ADA"), § 504 of the Rehabilitation Act, or the Housing and Community Development Act of 1974 ("HCDA"), defendants argue that Rodriguez has failed to plead sufficient facts to establish a claim upon which relief can be granted. Specifically, they argue that "neither [the ADA nor Section 504] provides for such individual capacity claims and, in any event, the Complaint fails to allege that Plaintiff was discriminated against on the basis of a qualifying disability." Def. Mem. at 20. With respect to the HCDA claim, defendants contend that the "federal housing grant provision simply does not apply to this matter." Id. For the reasons that follow, to the extent that the complaint is construed to include claims under the ADA, Rehabilitation Act, and the HCDA, they should be dismissed.
It is well established that "neither Title II of the ADA nor § 504 of the Rehabilitation Act provides for individual capacity suits against state officials." Scalercio-Isenberg v. Port Auth. of New York, No. 16-CV-8494 (VSB), 2018 WL 1633767, at *5 (S.D.N.Y. Mar. 31, 2018) (citing Garcia v. S.U.N.Y. Health Scis. Ctr. of Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001)). There is some disagreement among courts in the Second Circuit as to whether an individual may properly bring a claim under either statute against a state actor in his or her official capacity. See Monroe v. Gerbing, No. 16-CV-2818 (KMK), 2017 WL 6614625, at *15 (S.D.N.Y. Dec. 27, 2017) (collecting cases illustrating that "[w]hether individuals can be sued for damages under the ADA or Rehabilitation Act in their official capacities. . . is unsettled in the Second Circuit" (citation omitted)).
The Court need not reach a decision as to whether Rodriguez is entitled to bring an ADA or § 504 claim against defendants in their official capacities, however, because he has failed to allege sufficient facts to state a claim under either statute. "To state a claim under Title II of the ADA, [an individual] must show: (1) he or she is a qualified individual with a disability; (2) he or she is being excluded from participation in, or being denied the benefits of some service, program, or activity by reason of his or her disability; and (3) the entity [that] provides the service, program, or activity is a public entity." Hallett v. New York State Dep't of Corr. Servs., 109 F.Supp.2d 190, 198 (S.D.N.Y. 2000) (citation and quotation marks omitted). Similarly, § 504 "protects a `qualified individual with a disability' from exclusion of participation, denial of benefits, or subjection to discrimination based on the individual's disability `under any program or activity receiving Federal financial assistance.'" Monroe, 2017 WL 6614625, at *14 (citing 29 U.S.C. § 794(a)).
Although Rodriguez does not specifically allege that he is disabled by virtue of the fact that he has HIV/AIDS, it is well established that HIV infection qualifies as a disability. See Rivera v. Heyman, 157 F.3d 101, 103 (2d Cir. 1998) ("HIV infection is a disability under the [ADA]" (citing Bragdon v. Abbott, 524 U.S. 624, 639-45 (1998)). Even if the Court were to liberally construe his complaint to identify his HIV/AIDS infection as the alleged disability, however, Rodriguez fails to state a claim on which relief can be granted. Rodriguez does not allege that he was prohibited from accessing his apartment or that his medical coverage was terminated because of his disability. Rather, he alleges only that the Department of Social Services "turn[ed] off [his] medical card. . . [in an] attempt to get [him] into custody," and that Ramos forced him from his home because Ramos was "having an affair with his wife" and "intended to injure [him]." Compl. at 5-6, 22, 45. Neither allegation suggests that Rodriguez received disparate treatment because of a disability, a necessary requirement in any ADA or § 504 claim. Because he failed to assert that any of the alleged misconduct was motivated by reason of his disability, his claims under the ADA and Rehabilitation Act should be dismissed.
In his complaint, Rodriguez cites to 24 C.F.R. § 6.1, the regulations implementing provisions of the HCDA. Compl. at 18. However, the HCDA "does not confer a private right of action upon individuals." Jones v. Dep't of Hous. Pres. & Dev., No. 06-CV-2085 (LAP), 2008 WL 5155725, at *3 (S.D.N.Y. Dec. 8, 2008) (citing Mair v. City of Albany, New York, 303 F.Supp.2d 237, 243-44 (N.D.N.Y. 2004) (but noting one exception); People's Hous. Dev. Corp. v. City of Poughkeepsie, New York, 425 F.Supp. 482, 493 (S.D.N.Y. 1976)). Accordingly, this claim should be dismissed.
The complaint makes several references to state law. See, e.g., Compl. at 1 ("This action arises under. . . New York states own constitution and amendments"), 5 ("The right to medical treatment is protected by the state and federal constitution"), 91 ("New York Jurisprudence (74 N.Y. Jur. 2d Landlord and Tenant § 4")). Any claim arising under state law should be dismissed as well.
As a threshold matter, defendants correctly assert that, "to the extent that the Complaint alleges a § 1983 claim on the basis that [d]efendants allegedly violated any state law, . . . such a claim must be dismissed." Def. Mem. at 23. The violation of a rule that is "derived from state law, and is not required as a matter of constitutional due process," is not, on its own, actionable as a § 1983 claim. Richardson v. Williams, No. 15-CV-4117 (VB), 2017 WL 4286650, at *7 (S.D.N.Y. Sept. 26, 2017) (citing Patterson v. Coughlin, 761 F.2d 886, 891 (2d Cir. 1985) ("[A] state employee's failure to conform to state law does not in itself violate the Constitution and is not alone actionable under § 1983."). In light of the fact that Rodriguez has failed to state a claim as to any constitutional violation under § 1983, any § 1983 claims advanced on the basis of a violation of state law should be dismissed.
Second, defendants argue that the Court should decline to exercise supplemental jurisdiction over any state law claims because Rodriguez has failed to state a claim under federal law. If the Court dismisses all claims in the complaint arising under the Constitution or federal law, "it has discretion under 28 U.S.C. § 1367(c)(3) to dismiss [Rodriguez's] remaining state law claims." Awad v. Omar, No. 18-CV-10810 (NRB), 2019 WL 5727327, at *5 (S.D.N.Y. Nov. 5, 2019). When exercising this discretion, a federal court "should consider and weigh in each case, and at every stage of the litigation, the values of judicial economy, convenience, fairness, and comity." Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988). The present case is the "usual case" as articulated in Cohill insofar as all claims arising under federal law will have been "eliminated before trial" if this Report is adopted. Id. at 350 n.7. Therefore, the balance of factors weighs in favor of declining the exercise of supplemental jurisdiction.
Finally, the Court lacks jurisdiction over any claim for damages against state parole officers based on state law. See, e.g., Hassell v. Fischer, 96 F.Supp.3d 370, 385 (S.D.N.Y. 2015) ("[Plaintiff] brings state law claims for money damages against. . . [p]arole officials in their personal capacity for actions taken within the scope of their employment. . . . Because such claims would be barred in New York state courts, this Court equally lacks jurisdiction over the claims."), aff'd, 879 F.3d 41 (2d Cir. 2018). Thus, any state law claims alleged in Rodriguez's complaint should be dismissed.
Defendants argue that any claims made by Rodriguez against Ramos or Estwick in their official capacities must be dismissed under the Eleventh Amendment. Def. Mem. at 24. "[T]he Eleventh Amendment deprives federal courts of the authority to entertain damages actions asserted against a State absent [a] waiver or valid abrogation of state sovereign immunity." Sanchez v. City of New York, 736 F. App'x 288, 290 (2d Cir. 2018). It is well settled that the Eleventh Amendment bars any "claims for money damages against state officials, including . . . parole officers, sued in their official capacities. . . ." Ennis v. New York Dep't of Parole, No. 5:18-CV-501, 2018 WL 3869151, at *4 (N.D.N.Y. June 12, 2018) (citing Kentucky v. Graham, 473 U.S. 159, 167-68 (1985)), adopted by 2018 WL 3862683 (Aug. 14, 2018). Thus, any claims made against Ramos or Estwick in their official capacities should be dismissed.
To the extent that Rodriguez's complaint includes claims regarding his parole revocation proceeding or sentence, defendants argue that such claims must be dismissed because he has already litigated these issues in his Article 78 proceedings, and is thus collaterally estopped from raising them before the Court. Rodriguez filed a petition in state court asserting that the guilty plea he entered in his parole revocation hearing "was not made knowingly and voluntarily," and that the time assessment given by the Administrative Law Judge was "excessive and improper." Rodriguez, 2017 WL 9534735 at *1.
"The state law of collateral estoppel is controlling when a federal court determines the preclusive effect of a state court decision." Best v. Johnson, No. 03-CV-10210 (HB), 2004 WL 2754851, at *4 (S.D.N.Y. Dec. 1, 2004) (citing Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75, 79 (1984)). In New York, "collateral estoppel. . . precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same." Ryan v. New York Tel. Co., 62 N.Y.2d 494, 500, 467 N.E.2d 487, 490 (1984). The doctrine of collateral estoppel has been applied by courts in this Circuit to cases in which a plaintiff sought review in federal court of findings made during a parole revocation hearing and upheld in an Article 78 proceeding. See, e.g., Banks v. Person, 49 F.Supp.2d 119, 127 (E.D.N.Y. 1999).
Here, any effort to raise the claims addressed by the New York state courts would be an attempt to relitigate issues previously decided by those courts. Accordingly, insofar as the complaint may be construed to include claims as to his parole revocation proceeding or sentence, those claims should be dismissed.
Finally, Ramos and Estwick are entitled to qualified immunity. "In general, qualified immunity shields government officials from civil suits for damages `insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Sullivan v. City of New York, No. 14-CV-1334 (JMF), 2015 WL 5025296, at *8 (S.D.N.Y. Aug. 25, 2015) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)), aff'd, 690 F. App'x 63 (2d Cir. 2017). A "clearly established" right is one in which it is "sufficiently clear that every reasonable official would [have understood] that what he is doing violates that right." Reichle v. Howards, 566 U.S. 658, 664, (2012) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)). "This inquiry must be undertaken in light of the specific context of the case, not as a broad general proposition." Jones v. Muniz, 349 F.Supp.3d 377, 384 (S.D.N.Y. 2018) (quoting Mullenix v. Luna, 136 S.Ct. 305, 308 (2015)).
As discussed, the complaint does not allege facts sufficient to demonstrate that Rodriguez's constitutional rights were violated by either defendant as to either his apartment or medical coverage claims. In addition, even if a reviewing court were to find the potential for liability with respect to a federal or constitutional violation, the foregoing analyses demonstrate that defendants could not have violated a "clearly established" constitutional right by their alleged conduct. In the case of Rodriguez's claims regarding the cancellation of his medical coverage, for example, action taken to alert the agency as to his status in violation of his parole conditions could not have violated a "clearly established" constitutional right, particularly as New York law makes parole absconders ineligible for benefits. See N.Y. Comp. Codes R. & Regs. tit. 18, § 351.2. Hence, defendants are entitled to qualified immunity. See, e.g., Saucier v. Katz, 533 U.S. 194, 202 (2001) ("The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.").
A court must "freely" grant leave to amend a complaint when "justice so requires." Fed. R. Civ. P. 15(a)(2). The Second Circuit has emphasized that "[a] pro se complaint should not be dismissed without the Court granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated." Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (quoting Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010)). However, "a district court has discretion to deny leave for good reason, including futility, bad faith, undue delay, or undue prejudice to the opposing party." McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007). While the Court would generally recommend that a pro se plaintiff such as Rodriguez be granted leave to amend, for the various reasons listed below the "problem[s] with [his] causes of action [are] substantive" such that "better pleading will not cure [them]." Cuoco, 222 F.3d at 112.
As previously discussed, granting Rodriguez leave to amend to add the facts alleged in his opposition regarding his apartment displacement claim would be futile because that claim is barred by the statute of limitations. Similarly, repleading his claims regarding the cancellation of his medical coverage would be futile because such claims against Ramos and Estwick are barred by qualified immunity. See Yizar v. City of New Rochelle, No. 17-CV-9771 (VB), 2018 WL 6181364, at *5 (S.D.N.Y. Nov. 26, 2018) (citing Johnson v. Dobry, 660 F. App'x 69, 71 (2d Cir. 2016) (amendment futile because officer entitled to qualified immunity as demonstrated on face of complaint)). In addition, repleading any of the claims barred by collateral estoppel—including those regarding Rodriguez's parole revocation or sentence—would also be futile, as he already had a "full and fair opportunity to litigate" those claims in prior proceedings. United States v. Hussein, 178 F.3d 125, 129 (2d Cir. 1999).
The only federal claims not barred by the statute of limitations, qualified immunity, or collateral estoppel are claims made under Title II of the ADA, § 504 of the Rehabilitation Act, and the HCDA, to the extent Rodriguez has made those claims at all. Rodriguez is not entitled to a private right of action under the HCDA, and so he could not plausibly state a claim under that law if granted the opportunity to amend. As the Court has recommended dismissal of Rodriguez's ADA and § 504 claims due to "deficient pleadings, leave to amend should generally be granted." Watkins v. City of New York Kings Cty., No. 14-CV-1512 (RRM), 2014 WL 4075769, at *4 (E.D.N.Y. Aug. 15, 2014). However, Rodriguez does not allege or even suggest that he was displaced from his apartment or prevented from continued medical benefits coverage because he is disabled. Indeed, the only mention of a discriminatory animus is in an entirely conclusory sentence in the context of his apartment displacement claim that is devoid of any mention of a disability. Compl. at 8 ("This unlawful and unauthorize[d] action against the Claimant resulted in discriminatory practices against the tenants."). Moreover, Rodriguez has, as a practical matter, already presented his amended complaint, as he requested the Court to treat his opposition papers as an amended complaint. See Pl. Mem. at 3. Because Rodriguez's complaint and his opposition papers lack even the suggestion of a claim under the ADA or Rehabilitation Act, they should also be dismissed without leave to further amend.
For the foregoing reasons, the Court recommends that defendants' motion to dismiss the complaint be granted.
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report and Recommendation to file any written objections. See Fed. R. Civ. P. 6. A party may respond to any objections within fourteen (14) days after being served. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Valerie E. Caproni and to the chambers of the undersigned, United States Courthouse, 500 Pearl Street, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Caproni.
