Opinion
5:22-CV-432 (DNH/ATB)
11-04-2022
DARO C. WEILBURG and MARIA T. WEILBURG, Plaintiffs, v. RICHARD CASTELLANE, et al., Defendants.
REPORT-RECOMMENDATION
ANDREW T. BAXTER, UNITED STATES MAGISTRATE JUDGE
The Clerk has sent me what has been filed as the “Third Amended Complaint” in this action. (Dkt. No. 24). The court assumes familiarity with the substance of my initial review of plaintiff's previous filings in this proceeding, but will provide relevant procedural background and details below.
I. Background
The original complaint was filed on May 4, 2022, naming Daro C. Weilburg and Maria T. Weilburg as plaintiffs. (Dkt. No. 1). The original defendants were Nicholas Jacobson, Jane Doe Jacobson, Richard Castellane, Robert Altman, The Law Firm of Bond, Schoeneck & King, and various other John/Jane Doe defendants. (Id.). On May 18, 2022, I completed the initial review of plaintiffs' original complaint and issued an Order and Report-Recommendation. (“ORR”) (Dkt. No. 13). The court construed plaintiffs' complaint against the defendants to allege, inter alia, housing discrimination under the Fair Housing Act of 1968 (the “FHA”) based on plaintiffs' religion. In my ORR, I recommended service of the complaint on defendant Castellane based on plaintiffs' allegations under the FHA. (Id. at 5-7). I also recommended dismissal of the complaint as against defendants Nicholas Jacobson and The Law Firm of Bond, Schoeneck & King, without prejudice to plaintiffs amending their complaint to show that these defendants were responsible for any discriminatory conduct relative to the FHA claims. (Id. at 7-8, 10-11). Finally, I recommended that the district court dismiss the complaint as to plaintiffs' remaining claims and defendants without prejudice, but without leave to amend. (Id. at 8-11).
Plaintiffs objected to the ORR, but on June 7, 2022, the Honorable David N. Hurd adopted my recommendations. (Dkt. Nos. 14, 15). On July 8, 2022, plaintiffs filed an amended complaint in this action. (Dkt. No. 16). On July 13, 2022, while plaintiffs' amended complaint was still pending my review, plaintiffs filed a motion for a temporary restraining order (“TRO”) against a myriad of individuals and entities, some of which were the defendants named in plaintiffs' original complaint. (Dkt. No. 17). Judge Hurd denied plaintiffs' motion for a TRO on July 13, 2022, and again upon reconsideration on August 5, 2022. (Dkt. No. 20).
Plaintiff Daro Weilburg then filed what the court labeled a Second Amended Complaint (“SAC”) on August 5, 2022. (Dkt. No. 21). The court deemed the SAC to supersede all prior filed complaints, and reviewed the sufficiency of the allegations set forth therein in accordance with 28 U.S.C. § 1915. There were multiple defects in the SAC, as it (1) failed to conform with the specific pleading instructions set out in my May 18, 2022 ORR, (2) did not address any of plaintiffs' FHA claims, and (3) raised a number of issues already being addressed in a separate action filed by Daro Weilburg in this district related to his March 12, 2022 arrest for criminal trespass and subsequent prosecution in town court. Weilburg v. Rodgers, et al., No. 5:22-CV-435 (BKS/TWD). The SAC also omitted Maria T. Weilburg as a named plaintiff.
Based upon these defects, this court recommended dismissal of the SAC pursuant to the prior pending action doctrine, with a final opportunity for plaintiffs to file an amended complaint limited to their original claims under the FHA. (Dkt. No. 22 at 6). Plaintiffs were reminded to include in their amended complaint all of those facts and allegations which this court already determined to plausibly state a claim for housing discrimination against defendant Castellane, as well as any additional facts and allegations by which plaintiff could plausibly show that defendants Jacobson and The Law Firm of Bond, Schoeneck, and King were liable under the FHA for discriminatory conduct relative to plaintiff's housing. (Id.) Judge Hurd adopted these recommendations in their entirety in an order dated September 12, 2022, and gave plaintiffs thirty days to file an amended complaint. (Dkt. No. 23).
Plaintiffs complied with Judge Hurd's order by submitting a Third Amended Complaint dated and postmarked October 11, 2022, with a filing date of October 13, 2012. (Dkt. No. 24).
II. Sufficiency of Third Amended Complaint
The FHA “broadly prohibits discrimination in housing[.]” Melton v. Malcolm Shabazz, L.P., No. 1:18-CV-08111 (SDA), 2021 WL 535661, at *3 (S.D.N.Y. Feb. 12, 2021) (quoting Gladstone Realtors v. Vill. of Bellwood, 441 U.S. 91, 93 (1979)) (alteration in original). Section 3604(b) of the FHA makes it unlawful to “discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin.” Id. (quoting 42 U.S.C. § 3604 (b)). Section 3604(b) prohibits not just discrimination in connection with the initial rental or sale of a dwelling, but also conduct that “‘would constitute discrimination in the enjoyment of residence in a dwelling or in the provision of services associated with that dwelling after acquisition.'” Id. (citing Ash v. Jacobson, No. 16-CV-09548 (GHW), 2020 WL 2848178, at *4 (S.D.N.Y. June 1, 2020) (quoting Francis v. Kings Park Manor, Inc., 944 F.3d 370, 377 (2d Cir. 2019)).
The FHA also permits suits based on discrimination in the provision of property repairs or maintenance. See Rhodes v. Advanced Prop. Mgt., Inc., No. 3:10-CV-826 (JCH), 2011 WL 2076497 (D. Conn. May 26, 2011). Federal regulations interpreting section 3604 provide that prohibited actions include, among other things, “[f]ailing or delaying maintenance or repairs of sale or rental dwellings because of race, color, religion, sex, handicap, familial status, or national origin.” 24 C.F.R. § 100.65(b)(2).
Liberally construed, the Third Amended Complaint alleges that defendant Richard Castellane owns the basement apartment where plaintiffs reside and discriminated against plaintiffs based on their religion in violation of the FHA. The alleged discriminatory acts by defendant Castellane include the flooding of plaintiffs' apartment, allegedly by individuals acting at the direction of defendant Castellane; the failure to timely repair related plumbing issues and the associated water damage; the failure to remediate black mold; the interruption of plaintiffs' access to shared internet service; impeded ingress and egress; and the attempted eviction of plaintiffs. (Dkt. No. 24, ¶¶ 9-10, 14, 24). Plaintiffs allege that all these actions were primarily motivated by defendant Castellane's animosity toward plaintiffs' religious practices, including plaintiff Daro Weilburg's use of the internet to create and publish “Jehovah's Witness faith based videos.” (Id. at ¶¶ 12, 17, 26).
Having reviewed the Third Amended Complaint, and consistent with my May 18, 2022 ORR, this court finds that plaintiffs' allegations are sufficient to order service of the Third Amended Complaint on defendant Castellane, and recommends the same. Having made such a determination, this court expresses no opinion as to whether plaintiffs' claims against defendant Castellane can survive a properly filed dispositive motion.
Even applying the same liberal construction, plaintiffs still have not stated a cause of action under the FHA against named defendants Nicholas Jacobson and The Law Firm of Bond, Schoeneck, & King. As the court instructed plaintiffs in my May 18, 2022 ORR, an FHA claim must show that Nicholas Jacobson and The Law Firm of Bond, Schoeneck, & King “by their own conduct, were responsible for any discrimination, harassment, or other interference with plaintiffs' purported rental of the Property, because of plaintiffs' religion.” (Dkt. No. 13 at 10-11). Plaintiff merely alleges that defendant Jacobson was notified of the black mold problem, at a time when plaintiffs were prohibited from directly contacting defendant Castellane. (Dkt. No. 24, ¶¶ 13, 23). Although plaintiffs characterize defendants Jacobson and The Law Firm of Bond, Schoeneck, & King as “proxy landlords,” the allegations in the Third Amended Complaint do not suggest that either defendant had assumed any role other than legal counsel for defendant Castellane. Therefore, this court recommends dismissal of the Third Amended Complaint with prejudice as against defendants Nicholas Jacobson and The Law Firm of Bond, Schoeneck, & King.
III. No Further Opportunity to Amend is Currently Warranted.
Judge Hurd's September 12, 2022 Order granted plaintiffs a final opportunity to amend their original complaint, limited to claims of housing discrimination under the FHA. (Dkt. No. 23). The Third Amended Complaint includes a number of allegations against Robert Altman, Norman and Diane Button, NYS Police Officer Ethan T. Koss, Assistant District Attorney John S. Rodgers and Judge Daniel Vineall, although these individuals are not named as defendants. As before, these allegations appear duplicative of claims raised by plaintiff Daro Weilburg in Weilburg v. Rodgers, et al., No. 5:22-CV-435 (BKS/TWD). The allegations also appear unrelated to FHA claims. Therefore, to the extent that plaintiffs have attempted to add additional defendants or causes of action unrelated to the FHA in the Third Amended Complaint, I recommend dismissal of these claims without prejudice, but without further leave to amend.
Robert Altman was named as a defendant in plaintiffs' original complaint, but no allegations were made against him in the body of the complaint. (Dkt. No. 1). The original complaint was dismissed without prejudice as against Mr. Altman, but without leave to amend. (Dkt. No. 13 at 11; Dkt. No. 15 at 3).
This court also notes that plaintiffs' previous pleadings included a number of exhibits. (Dkt Nos. 8, 16, 21). No exhibits were filed as part of the Third Amended Complaint, but the relevant content of some of these previously filed exhibits are summarized therein. (Dkt. No. 24, ¶¶ 12, 17, 26). The court has reminded plaintiffs on multiple occasions that any amended complaint must be a complete pleading that will supersede the prior filed complaints, and no facts or allegations could be incorporated by reference. (Dkt. No. 13 at 11-12; Dkt. No. 22 at 3; Dkt. No. 24 at 4). Therefore, if the district court adopts my recommendation to order service on defendant Castellane, such service will be limited to the Third Amended Complaint as filed, and will not include any exhibits previously filed as part of superseded pleadings.
Plaintiffs' Third Amended Complaint includes a request for the court to “take the complete record on file and exhibits to make copies of the record and to forward those copies to the appropriate branch of the Department of Homeland Security to be investigated for further violations of the law . . .” The court has no authority to provide such relief. See, e.g. Brooks v. Doe Fund, Inc. No. 17-CV-3626 (PKC) (LB), 2020 WL 5706451 (E.D.N.Y. September 24, 2020) (“Generally, the Court's authority to request a criminal investigation-which does not, in any event, extend to ordering one-is limited to conduct that directly affects the judicial process or court proceedings, such as contempt of court.”).
WHEREFORE, based on the findings above, it is
RECOMMENDED, that the Third Amended Complaint be DISMISSED WITH PREJUDICE as to DEFENDANTS NICHOLAS JACOBSON and THE LAW FIRM OF BOND, SCHOENECK, & KING, and it is
RECOMMENDED, that plaintiff's claims against other individuals identified in the Third Amended Complaint but not listed as defendants be DISMISSED WITHOUT PREJUDICE, but without the opportunity to amend, and it is
RECOMMENDED, that if the court adopts this recommendation, the complaint be returned to me for any orders relating to service of the Third Amended Complaint on DEFENDANT RICHARD CASTELLANE.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have fourteen (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec. of Health & Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72.