Opinion
21-CV-4839 (AT)(SN)
07-28-2022
ANTHONY ALEXANDER MALLOY, Plaintiff, v. THE CITY OF NEW YORK DEPARTMENT OF HOMELESS SERVICES, MS. EVANS, SUPERVISOR, MR. BUTTON, SUPERVISOR MS. COOPER, DIRECTOR, Defendants.
TO THE HONORABLE ANALISA TORRES:
REPORT AND RECOMMENDATION
SARAH NETBURN, United States Magistrate Judge.
Anthony A. Malloy, proceeding pro se, brings suit against Salvation Army employees Tamika Everson, Paul Budden, and Selena Cooper (the “Salvation Army Defendants”) and unnamed directors of the City of New York's Department of Homeless Services (“DHS”) and Department of Finance (“DoF”) (collectively the “New York City Defendants”). He alleges violations of his Eighth and Fourteenth Amendment rights as well as other civil rights. The alleged violations stem from an altercation with Ms. Evans where he was allegedly treated disrespectfully and temporarily denied access to a Salvation Army homeless shelter. The Salvation Army Defendants and New York City Defendants move to dismiss his complaint for failure to state a claim under Rule 12(b)(6). The Court recommends that these motions be granted.
BACKGROUND
Mr. Malloy initiated suit on June 1, 2021, by filing a complaint against the Salvation Army Defendants. ECF No. 1. He later amended this complaint to include the New York City Defendants. ECF No. 5.
Mr. Malloy attempted to amend his complaint a second time on March 2, 2022. ECF No. 68. That complaint addressed a separate and unrelated set of incidents. Accordingly, it was stricken. ECF No. 70. Similarly, his oppositions to the motions to dismiss allude to a separate incident involving other parties who engaged in retaliatory violence against him for bringing this suit. ECF Nos. 58-1 at 3, 59-3 at 4-5. This incident is not alleged or inferable from Mr. Malloy's complaint. Accordingly, “[w]hile it is appropriate for the Court to consider new factual allegations made in a pro se plaintiff's opposition papers - and the Court does so here” Harris v. Oscar De La Renta, LLC, No. 20-cv-9235 (JGK), 2022 WL 540659, at *4 (S.D.N.Y. Feb. 22, 2022), “the Court will not consider them to the extent they purport to raise new claims.” Tolliver v. Jordan, No. 19-cv-11823 (PMH), 2021 WL 2741728, at *2 n.5 (S.D.N.Y. July 1, 2021).
The incident at issue took place on March 1, 2021. Mr. Malloy alleges that he came to the Blake Hotel building, ECF No. 5 at 5, where the Salvation Army was operating the Kingsboro MICA homeless shelter (the “Blake Hotel”). ECF No. 44-1 at ¶ 8. He asked to enter the shelter while waiting for a bus but Ms. Everson denied him access. ECF No. 5 at 5. She threatened to call the police, and swore at him, purportedly because other clients in the shelter did not respect her and she wished to vent her frustrations on Mr. Malloy. ECF No. 59-1 at 2-3. He also asked for medication but that request was denied. Id. Ms. Everson later allowed him inside the Blake Hotel but was verbally abusive. ECF No. 5 at 5. Two days later, Mr. Malloy contacted Ms. Cooper and Mr. Button using a grievance form to inform them about Ms. Everson's conduct. He reports that he did not receive a response from them. His efforts to inform DHS were similarly unheeded. Id. at 6. He reports that he was in pain from the cold for the period that he was not permitted inside the shelter and did not have medication for the pain. Id. In all, he reports that he was “assaulted and discriminated, harassed, and threatened].” Id. at 5.
In his complaint, Mr. Mallory refers to Ms. Everson and Mr. Budden as “Ms. Evans” and “Mr. Button.”
Mr. Malloy asserts violations of his civil rights and the Eighth Amendment. Id. at 2. He seeks monetary damages. Id. at 6. Both the Salvation Army Defendants and New York City Defendants move for dismissal for failure to state a claim under Rule 12(b)(6).
DISCUSSION
I. Standard of Review
To survive a Rule 12(b)(6) motion to dismiss, the complaint “must allege sufficient facts . . . to state a plausible claim for relief.” Johnson v. Priceline.com, Inc., 711 F.3d 271, 275 (2d Cir. 2013) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). The Court must “accept as true all factual statements alleged in the complaint and draw all reasonable inferences in favor of the non-moving party.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). But the Court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). On a Rule 12(b)(6) motion, the movant bears the burden of proof. Pearl River Union Free Sch. Dist. v. Duncan, 56 F.Supp.3d 339, 351 (S.D.N.Y. 2014). Because a motion to dismiss “challenges the complaint as presented by the plaintiff,” the Court “may review only a narrow universe” of materials in assessing whether the motion should be granted. Goel v. Bunge, Ltd., 820 F.3d 554, 559 (2d Cir. 2016). This includes documents and exhibits attached to the complaint or incorporated by reference. Id.
“[T]he submissions of a pro se litigant must be construed liberally and interpreted ‘to raise the strongest arguments that they suggest.'” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (quoting Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006)). But a pro se plaintiff is not excused from pleading enough facts to state a plausible claim for relief. Merely reciting the elements of a cause of action supported only by conclusory statements will not suffice, and the Court will not assume the truth of mere legal conclusions. See Iqbal, 556 U.S. at 678-79. After distinguishing allegations from legal conclusions, courts determine “whether the ‘well-pleaded factual allegations,' assumed to be true, ‘plausibly give rise to an entitlement to relief.'” Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010) (quoting Iqbal, 556 U.S. at 679). Courts “are obligated to draw the most favorable inferences that [a pro se] complaint supports,” but “cannot invent factual allegations that [the plaintiff] has not pled.” Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010).
Applying this liberal construction to Mr. Malloy's complaint, the Court interprets him to be alleging (1) violations of his civil rights, and specifically his Eighth Amendment and Fourteenth Amendment rights through a claim under 42 U.S.C. § 1983, (2) discrimination in public accommodation under Title II of the Civil Rights Act of 1964 (codified at 42 U.S.C. § 2000(a)), or (3) violations of Titles II (codified at 42 U.S.C. § 12182) and III (codified at 42 U.S.C. § 12132) of the Americans with Disabilities Act (ADA).
II. The Salvation Army Defendants
A. Section 1983 Claims May Not Lie Against the Salvation Army Defendants
Section 1983 claims may not lie against the Salvation Army Defendants because they are private parties. “A claim for relief under § 1983 must allege facts showing that each defendant acted under the color of a state statute, ordinance, regulation, custom or usage.” Toliver v. City of New York, No. 19-cv-11834 (CM), 2020 WL 883271, at *3 (S.D.N.Y. Feb. 21, 2020) (quoting 42 U.S.C. § 1983). Thus, “[a] private actor may be liable under § 1983 only if there is a sufficiently ‘close nexus between the State and the challenged action that seemingly private behavior may be fairly treated as that of the State itself.'” Sykes v. Bank of Am., 723 F.3d 399, 406 (2d Cir. 2013) (quoting Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295 (2001)). This close connection may be found in three circumstances:
(1) the entity acts using the coercive power of the state or is controlled by the state (the “compulsion test”); (2) the entity willfully participates in joint activity with state or its functions are entwined with state policies (the “joint action” or “close nexus” test); or (3) the state has delegated a public function to the entity (the “public function” test).Jones v. Banks, No. 20-cv-6788 (LLS), 2020 WL 5038696, at *4 (S.D.N.Y. Aug. 26, 2020) (citing Fabrikant v. French, 691 F.3d 193, 207 (2d Cir. 2012)).
The Salvation Army Defendants are employees of a private non-profit organization and Mr. Malloy does not allege any facts suggesting that they acted under color of law. He alleges that they temporarily denied him access to a shelter and did not provide him with certain medications. Courts in this District, however, have consistently held that providing housing and supportive services is not a government function that can support a § 1983 claim. See, e.g., Jones, 2020 WL 5038696, at *5 (“Providing housing is not a public function because it is not the exclusive province of the state.”); Toliver v. City of New York, No. 19-cv-11834 (CM), 2020 WL 883271, at *4 (S.D.N.Y. Feb. 21, 2020) (“Courts have consistently held that providing housing does not qualify as state action because it has not traditionally been the exclusive prerogative of the state.”); George v. Pathways to Hous., Inc., No. 10-cv- 9505 (ER), 2012 WL 2512964, at *4 (S.D.N.Y. June 29, 2012) (“It is well established that the provision of low-cost supportive housing is not a ‘public function' within the meaning of [S]ection 1983 ....”).
Accordingly, the Salvation Army Defendants are not state actors and, therefore, cannot be sued for constitutional violations under § 1983.
B. Mr. Malloy Lacks Viable Eighth or Fourteenth Amendments Claims Against the Salvation Army Defendants
Even if Mr. Malloy could maintain a § 1983 action, he cannot show a violation of his Eighth or Fourteenth Amendment rights. “Section 1983 . . .'is only a grant of a right of action; the substantive right giving rise to the action must come from another source.'” Ramapo Homeowners' Ass'n v. New York State Off, of Mental Retardation & Developmental Disabilities, 180 F, Supp, 2d 519, 525 (S.D.N.Y, 2002) (“RHA”) (quoting Singer v, Fulton County Sheriff, 63 F,3d 110, 119 (2d Cir,1995)), “Therefore, to state a section 1983 claim upon which relief can be granted, a plaintiff must allege not only that the defendant was acting under color of state law, but also that the defendant ‘has deprived him of a federal right,'” RHA, 180 F, Supp, 2d at 525 (quoting Gomez v, Toledo, 446 U,S, 635, 640 (1980)), The Eighth and Fourteenth Amendments are inapplicable to Mr, Malloy's claims, The Eighth Amendment protects against cruel and unusual punishments imposed upon convicted persons, See Smith v, Brown, 296 F, Supp, 3d 648, 661 (S,D,N,Y, 2017), While Mr, Malloy was under the supervision of a parole officer on March 1, ECF No, 5 at 5, he does not and could not assert that this incident was connected to his punishment or related in any way to his involvement with the justice system, Alternatively, Mr, Malloy may be attempting to assert a Fourteenth Amendment due process claim, The Fourteenth Amendment imposes an affirmative duty on the government to render aid to protect someone's safety and security from non-governmental threats when the state has imposed some restriction on that person that prevents them from acting themselves, “In the substantive due process analysis, it is the State's affirmative act of restraining the individual's freedom to act on his own behalf-through incarceration, institutionalization, or other similar restraint of personal liberty-which is the ‘deprivation of liberty' triggering the protections of the Due Process Clause . . . .” DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189, 200 (1989). Thus, for example, the government must provide certain basic services for those involuntarily committed for mental health treatment, Youngberg v. Romeo, 457 U.S. 307, 317 (1982), or detained before trial. Maldonado v. Town of Greenburgh, 460 F.Supp.3d 382, 395 (S.D.N.Y. 2020) (citing Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017)).
Mr, Malloy's opposition brief frames the conduct against him as a violation of his Fourteenth Amendment Due Process rights, ECF No, 59-1 at 3, while the New York City Defendants' motion to dismiss suggests that it his claim might be construed as an Equal Protection claim, ECF No, 52 at 13.
Mr. Malloy has not alleged any government-imposed restriction on his liberty that would prevent him from acting on his own behalf. While he was on parole he does not state that any condition of that parole restricted his ability to access the shelter nor does the Court find any basis to infer this. Absent such restrictions, the Fourteenth Amendment does not provide a substantive affirmative due process right to assistance in the form of access to the Blake Hotel or other medical aid.
A Fourteenth Amendment due process deprivation of property claim based on the right to on-demand access the Blake Hotel is also unavailing. Mr. Malloy “has no claim for deprivation of property without due process because he does not have a property right to placement in a particular type of shelter under New York law.” Jenkins v. New York City Dep't of Homeless Servs., 643 F.Supp.2d 507, 512 (S.D.N.Y. 2009); Barker v. Women in Need, Inc., No. 20-cv-2006 (LLS), 2020 WL 1922633, at *3 (S.D.N.Y. Apr. 20, 2020) (“[U]nder both federal and New York State law, shelter residents do not have a constitutionally protected property right to placement in a particular type of shelter.”) (citing Lindsey v. Normet, 405 U.S. 56, 74 (1972)); Fashaw v. New York, No. 21-cv-02336 (LTS), 2021 WL 1999732, at *4 (S.D.N.Y. May 17, 2021) (“To the extent that Plaintiff brings this action because he . . . had negative experiences in shelters, he fails to state a claim under the Due Process Clause or any other constitutional provision because neither federal nor New York State law creates a right to placement in a particular type of shelter.”)
A claim based on the Fourteenth Amendment's Equal Protection Clause is also without merit. “The Equal Protection Clause requires that the government treat all similarly situated people alike.” Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 499 (2d Cir. 2001). It “prohibits both ‘prototypical' discrimination based on membership in a protected class and ‘class of one' discrimination where the plaintiff alleges that he has been ‘intentionally treated differently from other[] similarly situated [people]' without a ‘rational basis for the difference in treatment.'” Garanin v. New York City Hous. Pres. & Dev., 673 Fed.Appx. 122, 124 (2d Cir. 2016) (quoting Harlen Assocs., 273 F.3d at 499). Mr. Malloy, however, does not allege discrimination on the basis of a protected class, state what protected class he might be a part of, or suggest that he was treated differently from other similarly situated people.
Finally, a violation of procedural Fourteenth Amendment Due Process rights cannot stand without some substantive interest that has been violated. “Process is not an end in itself. Its constitutional purpose is to protect a substantive interest to which the individual has a legitimate claim of entitlement.” Olim v. Wakinekona, 461 U.S. 238, 250 (1983). Mr. Malloy had not identified a substantive Eighth Amendment or Fourteenth Amendment right that he has been deprived of that could provide a basis for a procedural due process claim. As discussed below, he also lacks a statutory claim that could otherwise supply this interest.
C. Mr. Malloy Fails to Allege a Discrimination Claim Under Title II of the Civil Rights Act of 1964 Against the Salvation Army Defendants
Mr. Malloy fails to state a claim for violations of his civil rights under Title II of the Civil Rights Act of 1964. This provides that “[a]ll persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin.” 42 U.S.C. § 2000a(a).
While Mr. Malloy asserts that he was discriminated against, ECF No. 5 at 5, ECF No. 591 at 2, he does not assert discrimination on the basis of race, color, religion, or national origin. Nothing in his complaint or opposition provides any basis to infer that any of the Salvation Army Defendants discriminated against him on that basis. Rather, he asserts that Ms. Everson swore at him and was otherwise disrespectful and that her supervisors did nothing about this. ECF No. 5 at 5-6. Mr. Malloy suggests that this was for purely personal reasons: “[s]he was making an example out of me [and] mistreated me for what she suffer[ed] with other clients ....” ECF No. 59-1 at 3. This cannot form the basis for a discrimination claim. See, e.g., Calvino v. Chance, No. 20-cv-346 (CM), 2020 WL 419814, at *2 (S.D.N.Y. Jan. 27, 2020) (allegations that homeless shelter staff disrespected a person for non-protected reasons could not support a claim under 42 U.S.C. § 2000a(a)).
D. Mr. Malloy Fails to Allege a Claim Under Title III of the Americans With Disabilities Act Against the Salvation Army Defendants
Mr. Malloy does not state a plausible claim under Title III of the ADA. This provides that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” 42 U.S.C. § 12182(a).
The New York City Defendants' motion to dismiss suggests that Mr. Malloy's claim may be construed as an ADA claim. ECF No. 52 at 16.
“To state a claim under Title III, a plaintiff must allege facts suggesting ‘that (1) he or she is disabled within the meaning of the ADA; (2) that the defendants own, lease, or operate a place of public accommodation; and (3) that the defendants discriminated against the plaintiff within the meaning of the ADA.'” Milhouse v. Hilton Garden Inn Emps., No. 22-cv-2934 (LTS), 2022 WL 1749844, at *7 (S.D.N.Y. May 31, 2022) (quoting Roberts v. Royal Atl. Corp., 542 F.3d 363, 368 (2d Cir. 2008)). Discrimination, as relevant here, is defined as imposing criteria designed to exclude people with disabilities, failing to make reasonable accommodations for them, or failing to make steps to ensure that they are not treated differently because of the absence of accommodations for their disability. 42 U.S.C. § 12182(b)(2)(A)(i)-(iii).
Even assuming that Mr. Malloy is disabled within the meaning of the ADA and the Salvation Army Defendants operate a “place of public accommodation,” Mr. Malloy has not alleged discrimination. His facts suggest a brief argument between himself and Ms. Everson that was not satisfactorily addressed by her supervisors that delayed his access to a shelter. There is no allegation that he was treated differently or not accommodated on the basis of any disability. Indeed, he was eventually permitted to access the shelter after the initial argument.
In sum, even reading Mr. Malloy's complaint under a liberal standard and accounting for alternative legal theories, Mr. Malloy has failed to state a claim against the Salvation Army Defendants for violations of his civil and constitutional rights. The Court therefore recommends that his claims against the Salvation Army Defendants be dismissed.
III. The New York City Defendants
The Court now turns to Mr. Malloy's claims against the New York City Defendants. Mindful of the need to construe pro se complaints liberally, the Court addresses Mr. Malloy's allegations as they might lie against DHS, DoF, the unnamed directors of those agencies, and the City of New York.
A. DHS and DoF Are Not Amenable to Suit
DHS and DoF are city agencies that cannot be sued in their own name. Under N.Y. City Charter ch. 17, § 396 “[a]ll actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the city of New York and not in that of any agency, except where otherwise provided by law.” These agencies are thus not amenable to suit. See, e.g., Toliver, 2020 WL 883271, at *2 (“As an agency of the City of New York, the DHS is not an entity that can be sued in its own name.”); Yun v. City of New York, No. 19-cv-9267 (CM), 2019 WL 6918515, at *5 (S.D.N.Y. Dec. 19, 2019) (“Plaintiff's claims against the New York City Department of Finance must be dismissed because an agency of the City of New York is not an entity that can be sued.”) To the degree that Mr. Malloy's claims are against DHS and DoF, the Court therefore recommends that they be dismissed.
B. Mr. Malloy Has Alleged No Unconstitutional Policy or Practice That Supports Liability Against the City of New York
Mr. Malloy has not shown that New York City was engaged in an unconstitutional policy or practice that could provide the basis for a Section 1983 claim. “When a plaintiff sues a municipality such as the City of New York under section 1983, it is not enough for the plaintiff to allege that one of the municipality's employees or agents engaged in some wrongdoing. The plaintiff must show that the municipality itself caused the violation of the plaintiff's rights.” IbnTalal v. PATH DHS Dep't of Homeless Servs., No. 22-cv-1500 (LTS), 2022 WL 1004181, at *3 (S.D.N.Y. Apr. 4, 2022) (citing Connick v. Thompson, 563 U.S. 51, 60 (2011) and Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 692 (1978)).
Thus, “to state a § 1983 claim against a municipality such as the City of New York, the plaintiff must allege facts showing (1) the existence of a municipal policy, custom, or practice, and (2) that the policy, custom, or practice caused the violation of the plaintiff's constitutional rights.” Andrews v. City of New York, No. 19-cv-6069 (CM), 2019 WL 5864993, at *2 (S.D.N.Y. Nov. 4, 2019).
Mr. Malloy does not make either of these showings. His complaint does not plausibly allege the existence of any municipal policies, customs, or practices by the City of New York related to his treatment by the Salvation Army Defendants. Absent allegations about a specific policy, Mr. Malloy fails to state a claim against the City of New York. See, e.g., IbnTalal, 2022 WL 1004181, at *3 (“Plaintiff makes a conclusory allegation that DHS engaged in religious discrimination, but she does not plead any facts about what policy, custom, or practice of DHS caused a violation of her rights.”); Toliver, 2020 WL 883271, at *2. (“Plaintiff contends that he encountered various difficulties in homeless shelters operated by a private nonprofit agency . . . [but] does not identify . . . any policy, custom, or practice on the part of the City of New York that caused these alleged violations of his rights.”) Even if he had alleged a municipal policy, as discussed above, he has not plausibly alleged a violation of his constitutional rights.
C. Mr. Malloy Has Alleged No Unconstitutional Acts By Unnamed Agency Directors
Mr. Malloy has not alleged plausible constitutional claims against the unnamed DHS or DoF directors. “A claim against [a New York City official] in his official capacity is, in essence, a claim against the City of New York.” Toliver, 2020 WL 883271, at *3. To maintain this claim at this stage, a plaintiff must plead facts stating what a defendant personally did or did not do to violate his rights. Spavone v. New York State Dep't of Corr. Servs., 719 F.3d 127, 135 (2d Cir. 2013) (“It is well settled in this Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.”) (quoting Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995)). This involvement may be shown if:
(1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring.Colon, 58 F.3d at 873.
Mr. Malloy's allegations do not satisfy any of these tests. He has not plausibly alleged any constitutional violations by the New York City Defendants. A constitutional violation by some actor is a necessary element of each of the tests above. Accordingly, Mr. Malloy has not made the showing to demonstrate either director's personal involvement in a violation of his rights.
D. Mr. Malloy Fails to Allege Facts Supporting a Claim Under Title II of the Americans With Disabilities Act Against the New York City Defendants
Mr. Malloy does not state a claim against the New York City Defendants for violations of the ADA. Title II of the ADA, the section applicable to public entities, provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132.
“To state a claim under Title II, a plaintiff must allege ‘(1) that she is a qualified individual with a disability; (2) that she was excluded from participation in a public entity's services, programs or activities or was otherwise discriminated against by a public entity; and (3) that such exclusion or discrimination was due to her disability.'” Lawtone-Bowles v. City of New York, No. 21-cv-5620 (LTS), 2021 WL 3773641, at *5 (S.D.N.Y. Aug. 23, 2021) (quoting Tardif v. City of New York, 991 F.3d 394, 404 (2d Cir. 2021)).
As with his Title III claim, Mr. Malloy does not allege that he was excluded from the Blake Hotel because of his disabilities. A plaintiff may meet this showing through allegations that their “disabilities were a substantial cause of their inability to obtain services, or that that inability was not so remotely or insignificantly related to their disabilities as not to be ‘by reason' of them.” Henrietta D. v. Bloomberg, 331 F.3d 261, 279 (2d Cir. 2003). Mr. Malloy does not allege that his disability played any role in his temporary exclusion from the Blake Hotel.
The Court therefore recommends that Mr. Malloy's claims against the New York City Defendants be dismissed. He has not alleged facts necessary to state a claim under the Constitution, the Civil Rights Act, or the ADA. This is true regardless of whether his complaint is interpreted as being brought against DHS and DoF, the unnamed DHS and DoF directors, or the City of New York.
IV. Mr. Malloy Should Not Be Granted Leave to Amend
“District courts generally grant a pro se plaintiff an opportunity to amend a complaint to cure its defects, but leave to amend is not required where it would be futile.” Calvino, 2020 WL 419814, at *3. In particular, a court need not grant leave to amend where the “problem with [a plaintiff's] causes of action is substantive” and “better pleading will not cure it.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). This is the case here. In essence, Mr. Malloy alleges that he was disrespectfully treated by employees of a private non-profit who disliked him on a personal basis. This cannot support liability under the Civil Rights Act, ADA, or the Constitution, and courts have denied leave to amend in comparable circumstances. See, e.g., Calvino, 2020 WL 419814, at *3 (dismissing complaint without leave to amend where the allegations against a non-profit was based on disrespectful treatment that was not based on discrimination due to race, color, religion, or national origin).
Mr. Malloy's complaints against the New York City Defendants are derivative of the claims against the Salvation Army Defendants. Accordingly, the issues with them cannot be cured through amendment either.
CONCLUSION
The Court recommends that Mr. Malloy's complaint be dismissed for failure to state a claim under Rule 12(b)(6) and that no leave to amend be granted. Upon the resolution of these motions, the Clerk of the Court should terminate the motions at ECF Nos. 43 and 51.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen days from the service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Analisa Torres at the United States Courthouse, 500 Pearl Street, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Torres. The failure to file these timely objections will result in a waiver of those objections for purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).