Avila v. Sun River Health, Inc.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK JIMMY AVILA, Plaintiff, 22-CV-9221 (LTS) -against- ORDER TO AMEND SUN RIVER HEALTH, INC.; MELISSA SHOUPE; LESTER, Defendants.

LAURA TAYLOR SWAIN, Chief United States District Judge: Plaintiff, who is appearing pro se, brings this action under “28 U.S.C. §§ 1346 and 2671, as well as The Rehabilitation Act of 1973, The Americans with Disabilities Act of 1990 (ADA), The New York City Human Rights Law, and The New York State Human Rights Law,” alleging that Defendants refused “to provide required Medical Accommodations in retaliation for Plaintiff’s federally protected activity. Which included reporting MELISSA SHOUPE, and LESTER’S illegal acts to their colleagues, respective agencies, and local authorities.”1 (ECF No. at 1.) By order dated February 8, 2023, the Court granted Plaintiff’s request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees. For the reasons set forth below, the Court grants Plaintiff leave to file an amended complaint within sixty days of the date of this order.

STANDARD OF REVIEW The Court must dismiss an IFP complaint, or any portion of the complaint, that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary The Court quotes the complaint verbatim. All spelling, punctuation, and grammar are as in the original. relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); see Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must also dismiss a complaint when the Court lacks subject matter jurisdiction of the claims raised. See Fed. R. Civ. P. 12(h)(3).

While the law mandates dismissal on any of these grounds, the Court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the “strongest [claims] that they suggest,” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original). But the “special solicitude” in pro se cases, id. at 475 (citation omitted), has its limits – to state a claim, pro se pleadings still must comply with Rule 8 of the Federal Rules of Civil Procedure, which requires a complaint to make a short and plain statement showing that the pleader is entitled to relief.

Rule 8 requires a complaint to include enough facts to state a claim for relief “that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible if the plaintiff pleads enough factual detail to allow the Court to draw the inference that the defendant is liable for the alleged misconduct. In reviewing the complaint, the Court must accept all well-pleaded factual allegations as true. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). But it does not have to accept as true “[t]hreadbare recitals of the elements of a cause of action,” which are essentially just legal conclusions. Twombly, 550 U.S. at 555. After separating legal conclusions from well-pleaded factual allegations, the Court must determine whether those facts make it plausible – not merely possible – that the pleader is entitled to relief. Id. BACKGROUND Plaintiff Jimmy Avila, who resides at 1212 Grant Avenue, Apt. 1C, Bronx, New York, brings this action alleging that he has “established protected class status through the medical accommodation requests made to Defendants” based on a letter from Ted Martynowicz, DO, Defendant “Sun River Health’s OWN Doctor,” dated March 22, 2020. (ECF No. 2 at 2.) Dr. Martynowicz’s letter indicates that Plaintiff will “require a safety transfer from BASIC to a ONE BEDROOM apartment at an alternate scatter sight.” (ECF No. 2 at 2, 24.) Plaintiff alleges that Defendants failed to ensure that he received the recommended safety transfer, and he brings this action seeking declaratory relief, injunctive relief, and unspecified monetary damages.

On September 8, 2022, approximately one month prior to filing this action, Plaintiff filed an action in this court against different defendants, for their failure to accommodate Plaintiff’s housing request, based on the same March 22, 2020, letter from Dr. Martynowicz referenced in this action, in violation of the ADA and the Fair Housing Act.2 See Avila v. Acacia Network, Inc., ECF 1:22-CV-7657, 2 (S.D.N.Y. filed Sept. 8, 2022).

2 A review of the Public Access to Court Electronic Records (PACER) system shows that Plaintiff has previously filed three other lawsuits against some of the same defendants named in this action about discrimination in housing. On April 22, 2015, Plaintiff, who, at the time, was residing at 880 Tinton Ave., Apt. 1N, Bronx, New York, filed the first action against Janice Glenn Slaughter and OH 161st Street L.P., alleging that defendants discriminated against him on the basis of his disability, in violation of the FHA. See Avila v. Slaughter, ECF 1:15-CV-3188, 20 (S.D.N.Y. July 28, 2015). That action was voluntarily dismissed without prejudice. Id. On November 15, 2017, Plaintiff, who, at that time, was residing at his current address, filed the second action against BASICS, Inc., Lorraine Coleman, Aja Douglas, 1212 Grant Realty LLC, and Jacob Finkelstein, alleging that they violated his rights under the FHA, in retaliation for Plaintiff winning judgments, in the Civil Court of the City of New York, against 1212 Grant Realty LLC and Jacob Finkelstein. See Avila v. Basics, Inc., ECF 1:17-CV-8916, 6 (S.D.N.Y. Nov. 20, 2017). By Memorandum Opinion and Order dated November 20, 2017, the Honorable Jesse M. Furman, of this court, denied Plaintiff’s request for injunctive relief and dismissed that complaint for failure to state a plausible claim for relief under the FHA. Id. Judge Furman granted Plaintiff leave to file an amended complaint within 30 days, but Plaintiff did not amend his complaint in that case.

On August 28, 2018, Plaintiff, who, at that time, was residing at his current address, filed a complaint against 1212 Grant Realty, LLC, Basics, Inc., Lorraine Coleman, and Jacob Finkelstein, alleging that defendants retaliated against him by attempting to evict him, in violation of the FHA. See Avila v. 1212 Grant Realty, LLC, ECF 1:18-CV-7851, 130 (S.D.N.Y. DISCUSSION A. The Americans with Disabilities Act and the Rehabilitation Act The ADA prohibits discrimination against the disabled in major areas of life. The statute consists of three parts: Title I, 42 U.S.C. § 12111 et seq., which prohibits discrimination in employment; Title II, 42 U.S.C. § 12131 et seq., which prohibits discrimination by public entities; and Title III, 42 U.S.C. § 12181 et seq., which prohibits discrimination in access to public accommodations. PGA Tour, Inc. v. Martin, 532 U.S. 661, 675 (2001).

Title II of the ADA 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. The Rehabilitation Act of 1973 includes a similar provision governing programs that receive federal funding.3 29 U.S.C. § 794(a). To assert a claim under these provisions, a plaintiff must demonstrate that (1) he is a qualified individual with a disability; (2) the defendant is subject to one of the Acts; and (3) he was denied the opportunity to participate in or benefit from the defendant’s services, programs, or activities, or was otherwise discriminated against by the defendant because of his disability.”

McElwee v. Cnty. of Orange, 700 F.3d 635, 640 (2d Cir. 2012) (quoting Powell v. Nat’l Bd. of Med. Exam’rs, 364 F.3d 79, 85 (2d Cir. 2004)). Generally, “a defendant discriminates when it fails to make a reasonable accommodation that would permit a qualified disabled individual ‘to have access to and take a meaningful part in public services.’” Id. at 640.

Apr. 26, 2021). In that action, Plaintiff and defendants reached a settlement and stipulated to dismiss the action with prejudice, with regard to all defendants. Id. Plaintiff alleges that Defendant Sun River Health, Inc. is a “Federally Qualified Health Center.” (ECF No. 2 at 2.)

Title III of the ADA 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.” 42 U.S.C. § 12182(a).

The provision further states that [i]t shall be discriminatory to afford an individual or class of individuals, on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements with the opportunity to participate in or benefit from a good, service, facility, privilege, advantage, or accommodation that is not equal to that afforded to other individuals. 42 U.S.C. § 12182(b)(1)(A)(ii) (emphasis added); see also Camarillo v. Carrols Corp., 518 F.3d 153, 156 (2d Cir. 2008).

Because the standards under the ADA and the Rehabilitation Act “are generally the same and the subtle distinctions between the statutes are not implicated in this case, ‘[the Court will] treat claims under the two statutes identically’” for the purposes of this order, except where otherwise noted. Wright v. N.Y. State Dep’t of Corrs., 831 F.3d 64, 72 (2d Cir. 2016) (quoting Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003)).

As a threshold issue, the Court must determine whether the complaint, liberally construed, shows that Plaintiff is disabled within the meaning of the ADA and Rehabilitation Act.

A person is disabled under the statutes if the person has “a physical or mental impairment that substantially limits one or more major life activities.” 42 U.S.C. § 12102(1)(A).

Even assuming that Plaintiff has a disability, which he has not fully explained, for the purpose of the ADA and the Rehabilitation Act and that he is subject to the protections of these statutes, Plaintiff has alleged no facts showing that he was denied the opportunity to participate in or benefit from Defendants’ services, programs, or activities, or was otherwise discriminated against by Defendants by reason of his disability. See Smith v. NYCHA, 410 F. App’x 404, 406 (2d Cir. 2011) (summary order) (discussion in the context of claims under the Fair Housing Act and Title II of the ADA arising from NYCHA’s failure to carry out repairs in its apartments).

Plaintiff fails to show that Defendants discriminated against him because of his disability in violation of the ADA or the Rehabilitation Act.

The Court grants Plaintiff leave to amend his complaint to allege facts to state a claim under Title II of the ADA and the Rehabilitation Act. If Plaintiff chooses to amend his complaint, he must allege facts to support his disability discrimination claims. Plaintiff must demonstrate that he is a qualified individual with a disability, that Defendants are subject to the ADA and the Rehabilitation Act, and that he was denied the opportunity to participate in Defendants’ programs, activities, or services because of his disability or that Defendants otherwise discriminated against him because of his disability.

B. Request for Injunctive Relief Plaintiff has filed an application for preliminary injunction. To obtain such relief, Plaintiff must show: (1) that he is likely to suffer irreparable harm, and (2) either (a) a likelihood of success on the merits of his case or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in his favor. See UBS Fin. Servs., Inc. v. W.V. Univ. Hosps., Inc., 660 F. 3d 643, 648 (2d Cir. 2011) (citation and internal quotation marks omitted); Wright v. Giuliani, 230 F.3d 543, 547 (2000). Preliminary injunctive relief “is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Moore v. Consol. Edison Co. of N.Y., Inc., 409 F.3d 506, 510 (2d Cir. 2005) (internal quotation marks and citation omitted).

As set forth above, Plaintiff fails to state a claim for relief under the ADA or the Rehabilitation Act. The Court therefore finds that Plaintiff has not, at this time, shown (1) a likelihood of success on the merits, or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in his favor.

Accordingly, Plaintiff’s request for injunctive relief is denied without prejudice to renewal at a later date.

LEAVE TO AMEND Plaintiff proceeds in this matter without the benefit of an attorney. District courts generally should grant a self-represented plaintiff an opportunity to amend a complaint to cure its defects, unless amendment would be futile. See Hill v. Curcione, 657 F.3d 116, 123-24 (2d Cir. 2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). Indeed, the Second Circuit has cautioned that district courts “should not dismiss [a pro se complaint] without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (quoting Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999)). Because Plaintiff may be able to allege facts to state valid ADA and Rehabilitation Act claims, the Court grants Plaintiff sixty days’ leave to amend his complaint to detail his claims.

Plaintiff is granted leave to amend his complaint to provide more facts to support his claims. In the “Statement of Claim” section of the amended complaint form, Plaintiff must provide a short and plain statement of the relevant facts supporting each claim against each Defendant. If Plaintiff has an address for any named Defendant, Plaintiff must provide it.

Plaintiff should include all of the information in the amended complaint that Plaintiff wants the Court to consider in deciding whether the amended complaint states a claim for relief. That information should include: a) the names and titles of all relevant people; b) a description of all relevant events, including what each defendant did or failed to do, the approximate date and time of each event, and the general location where each event occurred; c) a description of the injuries Plaintiff suffered; and d) the relief Plaintiff seeks, such as money damages, injunctive relief, or declaratory relief.

Essentially, Plaintiff’s amended complaint should tell the Court: who violated his federally protected rights and how; when and where such violations occurred; and why Plaintiff is entitled to relief.

Because Plaintiff’s amended complaint will completely replace, not supplement, the original complaint, any facts or claims that Plaintiff wants to include from the original complaint must be repeated in the amended complaint.

Plaintiff may consider contacting the New York Legal Assistance Group’s (NYLAG) Legal Clinic for Pro Se Litigants in the Southern District of New York, which is a free legal clinic staffed by attorneys and paralegals to assist those who are representing themselves in civil lawsuits in this court. A copy of the flyer with details of the clinic is attached to this order. The clinic is currently available only by telephone.

CONCLUSION Plaintiff is granted leave to file an amended complaint that complies with the standards set forth above. Plaintiff must submit the amended complaint to this Court’s Pro Se Intake Unit within sixty days of the date of this order, caption the document as an “Amended Complaint,” and label the document with docket number 22-CV-9221 (LTS). An Amended Complaint form is attached to this order. No summons will issue at this time. If Plaintiff fails to comply within the time allowed, and he cannot show good cause to excuse such failure, the complaint will be dismissed for failure to state a claim upon which relief may be granted.

Plaintiff’s application for preliminary injunction (ECF No. 3) is denied without prejudice to renewal at a later date.

The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore IFP status is denied for the purpose of an appeal. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue).

SO ORDERED.

Dated: March 6, 2023 New York, New York /s/ Laura Taylor Swain LAURA TAYLOR SWAIN Chief United States District Judge UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK CV TT (clu ber if has b Write the full name of each plaintiff. ened) nummer troneines seen -against- AMENDED COMPLAINT □□ Do you want a jury trial? [(1Yes (CINo Write the full name of each defendant. If you need more space, please write “see attached” in the space above and attach an additional sheet of paper with the full list of names. The names listed above must be identical to those contained in Section Il.

NOTICE The public can access electronic court files. For privacy and security reasons, papers filed with the court should therefore not contain: an individual’s full social security number or full birth date; the full name of a person known to be a minor; or a complete financial account number. A filing may include only: the last four digits of a social security number; the year of an individual’s birth; a minor’s initials; and the last four digits of a financial account number.

See Federal Rule of Civil Procedure 5.2.

Rev. 2/10/17 I. BASIS FOR JURISDICTION Federal courts are courts of limited jurisdiction (limited power). Generally, only two types of cases can be heard in federal court: cases involving a federal question and cases involving diversity of citizenship of the parties. Under 28 U.S.C. § 1331, a case arising under the United States Constitution or federal laws or treaties is a federal question case. Under 28 U.S.C. § 1332, a case in which a citizen of one State sues a citizen of another State or nation, and the amount in controversy is more than $75,000, is a diversity case. In a diversity case, no defendant may be a citizen of the same State as any plaintiff.

What is the basis for federal-court jurisdiction in your case? [] Federal Question L] Diversity of Citizenship A. If you checked Federal Question Which of your federal constitutional or federal statutory rights have been violated?

B. If you checked Diversity of Citizenship 1. Citizenship of the parties Of what State is each party a citizen?

The plaintiff , ,is a citizen of the State of (Plaintiffs name) (State in which the person resides and intends to remain.) or, if not lawfully admitted for permanent residence in the United States, a citizen or subject of the foreign state of If more than one plaintiff is named in the complaint, attach additional pages providing information for each additional plaintiff.

Page 2 If the defendant is an individual: The defendant, , is a citizen of the State of (Defendant’s name) or, if not lawfully admitted for permanent residence in the United States, a citizen or subject of the foreign state of .

If the defendant is a corporation: The defendant, , is incorporated under the laws of the State of and has its principal place of business in the State of or is incorporated under the laws of (foreign state) and has its principal place of business in .

If more than one defendant is named in the complaint, attach additional pages providing information for each additional defendant.

II. PARTIES A. Plaintiff Information Provide the following information for each plaintiff named in the complaint. Attach additional pages if needed.

First Name Middle Initial Last Name Street Address County, City State Zip Code Telephone Number Email Address (if available) B. Defendant Information To the best of your ability, provide addresses where each defendant may be served. If the correct information is not provided, it could delay or prevent service of the complaint on the defendant. Make sure that the defendants listed below are the same as those listed in the caption. Attach additional pages if needed.

Defendant 1: First Name Last Name Current Job Title (or other identifying information) Current Work Address (or other address where defendant may be served) County, City State Zip Code Defendant 2: First Name Last Name Current Job Title (or other identifying information) Current Work Address (or other address where defendant may be served) County, City State Zip Code Defendant 3: First Name Last Name Current Job Title (or other identifying information) Current Work Address (or other address where defendant may be served) County, City State Zip Code Defendant 4: First Name Last Name Current Job Title (or other identifying information) Current Work Address (or other address where defendant may be served) County, City State Zip Code III. STATEMENT OF CLAIM Place(s) of occurrence: Date(s) of occurrence: FACTS: State here briefly the FACTS that support your case. Describe what happened, how you were harmed, and what each defendant personally did or failed to do that harmed you. Attach additional pages if needed.

INJURIES: If you were injured as a result of these actions, describe your injuries and what medical treatment, if any, you required and received.

IV. RELIEF State briefly what money damages or other relief you want the court to order.

V. PLAINTIFF’S CERTIFICATION AND WARNINGS By signing below, I certify to the best of my knowledge, information, and belief that: (1) the complaint is not being presented for an improper purpose (such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation); (2) the claims are supported by existing law or by a nonfrivolous argument to change existing law; (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the complaint otherwise complies with the requirements of Federal Rule of Civil Procedure 11.

I agree to notify the Clerk's Office in writing of any changes to my mailing address. I understand that my failure to keep a current address on file with the Clerk's Office may result in the dismissal of my case.

Each Plaintiff must sign and date the complaint. Attach additional pages if necessary. If seeking to proceed without prepayment of fees, each plaintiff must also submit an IFP application.

Dated Plaintiff's Signature First Name Middle Initial Last Name Street Address County, City State Zip Code Telephone Number Email Address (if available) I have read the Pro Se (Nonprisoner) Consent to Receive Documents Electronically: OlYes If you do consent to receive documents electronically, submit the completed form with your complaint. If you do not consent, please do not attach the form.

Page 7 SS oes OO es Since 1990, NYLAG has provided free civil legal services New York ME Legal Assistance Group to New Yorkers who cannot afford private attorneys.

Free Legal Assistance for Self-Represented Civil Litigants in District Court for the Southern District Of New Yor| NYLAG Legal Clinic for Pro Se Litigants in the Southern District of New York is a fre clinic staffed by attorneys, law students and paralegals to assist those who are themselves or planning to represent themselves in civil lawsuits in the outhern District of New York. The clinic does not provide full representation. The clinic, is not part of or run by the court, assists litigants with federal civil cases including involving civil rights, employment discrimination, labor law, social security benefit: and tax.

Contact the Clinic: (212) 659-6190 or complete our online intake form (found here: A staff member will contact you within a few days.

looking for assistance can also contact the clinic at the kiosk located across the hall the pro se clinic office in the courthouse. this time, the clinic offers remote consultations only. Requests for in- appointments will be reviewed on a case-to-case basis. and Hours: Marshall United States Courthouse Room LL22 Centre Street New York, NY 10007 (212) 659 6190 Open weekdays a.m. — 4 p.m.

Closed on federal and court holidays ii □□□□ □ = = eee 14 ESE ° .

New York ME Legal Assistance Group District of New York The NYLAG Legal Clinic for Pro Se Litigants in the Southern District of New York provides free limited legal assistance to individuals who are representing themselves or planning to represent themselves in civil lawsuits in federal court in Manhattan and White Plains. The clinic is staffed by attorneys, law students, and paralegals.

Information given to clinic staff is confidential.

Clinic Staff Can: Clinic Staff Cannot: Advise on filing cases in federal court e Assist with federal civil cases that belong in a including on the issue of whether a = 3 different federal court, such as the Eastern District of should be filed in the Southern District of New York, which covers of New York, which covers New York or somewiierocisd Brooklyn, Queens, Staten Island, and Nassau and Provide legal advice in response to questions Suffolk Counties; that come up at any stage of litigation; e Assist with an appeal of your federal case; Assist in getting additional information or e Assist with state court cases, bankruptcy court cases, research into the legal issue in your case; or criminal cases; oo Review and explain court orders and filings ¢ Pay any of the costs associated with filing or by your opponent, and provide an overview of defending a lawsuit in federal court; the federal legal process in civil cases e File documents with the court on your behalf; generally; e Appear on your behalf other than representation at a Assist with motions, discovery, and strategy; mediation through the Southern District’s Alternative Assist with getting ready for depositions, Dispute Resolution Program, a court-ordered pretrial conferences, mediations, and court settlement conference, or, in appropriate cases, a appearances; deposition; Provide forms and instructions manuals; ° Write court documents for you, or In appropriate cases, help you retain bono ° Conduct an investigation into the facts of your case. counsel; Inappropriate cases, represent you in a Clinic Staff May Decline Assistance If: mediation through the Southern District’s Alternative Dispute Resolution Program, ora NYLAG has already given advice to your opponent; court-ordered settlement conference; e Your legal problem is beyond the scope of matters Inappropriate cases, represent you at a handled by the clinic; deposition; and e Providing assistance would conflict with the New York Inappropriate cases, provide referrals to Rules of Professional Conduct; other agencies and organizations that provide e Your income and/or assets are high enough to allow you civil legal services and/or social services. to retain private counsel; or e NYLAG determines, in its professional legal judgement, that (i) you have refused to cooperate with the Clinic’s counsel or follow the Clinic’s advice; (ii) any assistance would be unreasonably difficult for NYLAG to carry out; or (iii) your case is or will become frivolous, unreasonable, groundless, or without merit.

¢ a bene https://nylagoi.legalserver.org/modules/matter/extern_intake.php?pid=142&h=cea984& UJA ) □□□