Opinion
00 Civ. 9064 (JGK)
August 9, 2001
OPINION AND ORDER
This action is brought by plaintiff Steven F. Cincotta ("Cincotta") on behalf of himself and his daughter, Camilia J. Cincotta ("Camilia Cincotta"), against the New York City Human Resources Adminstration ("HRA"), Corporation Counsel of the City of New York ("Corporation Counsel"), New York State Office of Temporary and Disability Assistance ("OTDA"), the Attorney General of the State of New York ("Attorney General"), New York State Department of Health ("DOH"), and the Lovett Company, LLC ("Lovett") pursuant to 42 U.S.C. § 1983. The plaintiff challenges the calculation by HRA of the plaintiff's food stamp benefits, alleging that his food stamp allotment was reduced in violation of his rights under the Food Stamp Act and the Fourteenth Amendment.
For the reasons further explained below, Cincotta's claims brought on behalf of his daughter, Camilia Cincotta, are dismissed without prejudice because the plaintiff cannot proceed pro se on her behalf. Thus, throughout this opinion, "plaintiff" ref ers to plaintiff Cincotta.
HRA and Corporation Counsel are collectively referred to as the "City Defendants." OTDA, the Attorney General, and DOH are collectively ref fered to as the "State Defendants."
In the Complaint, the plaintiff has asserted class action allegations. (Compl. ¶¶ 45-47.) The class action allegations are not currently before the Court.
The plaintiff seeks a preliminary injunction against the State Defendants and City Defendants to: (1) increase his current allotment of food stamp benefits to a minimum of 238 coupons per month and restoring all lost benefits after August 31, 2000; (2) prevent the State Defendants and City Defendants from executing a food stamp recoupment against the plaintiff; (3) submit to the Court a copy of plaintiff's entire Food Stamp file; and (4) comply with OTDA'S Administrative Fair Hearing Order rendered on September 26, 2000. The plaintiff seeks a preliminary injunction against Lovett requiring Lovett to submit a letter stating that it or Mawash Realty Corporation does or does not pay the costs of cooling the plaintiff's residence. The plaintiff seeks a preliminary injunction against all of the defendants to compensate the plaintiff for all injuries resulting from the failure to issue his alleged proper food stamp allotment for August 31, 2000 and to compensate the plaintiff for all reasonable attorney's fees and costs. As the motion has been pending, the piuntiff has also filed a motion seeking various forms of ancillary relief. Both the State Defendants and City Defendants have filed cross-motions to dismiss the Complaint pursuant to Fed.R.Civ.P. 12(b)(6).
I.
The parties in this case have submitted evidentiary material outside the pleadings. Ordinarily, pursuant to Federal Rule of Civil Procedure 12(b), a court may consider such materials "in its discretion and upon notice to all parties. . . ." See Sellers v. M.C. Floor Crafters. Inc., 842 F.2d 639, 642 (2d Cir. 1988). If it does so, however, it must treat the motion to dismiss as a motion for summary judgment. See Sellers, 842 F.2d at 642. Where a pro se litigant is concerned, the Court of Appeals for the Second Circuit has held that summary judgment is not appropriate unless the pro se party has been given express notice by the court or by the opposing party of the consequences of failing to respond to a motion for summary judgment, or unless the pro se litigant's papers establish that the pro se litigant understood the nature and consequences of summary judgment. See Vital v. Interfaith Med. Ctr., 168 F.3d 615, 620-21 (2d Cir. 1999); Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988);Sellers, 842 F.2d at 642.
In this case, the Court notified the parties that, because all of the parties submitted affidavits and evidentiary materials outside the pleadings, it intended to treat the present motions as motions for summary judgment and the Court provided all parties the opportunity to submit any further evidentiary materials in connection with the motions. See Order dated June 20, 2001. The Court also notified the plaintiff of the nature of Fed.R.Civ.P. 56 and the consequences of failing to respond to any factual assertions and provided the plaintiff with copies of the full text of Fed.R.Civ.P. 12 and 56. See Order dated June 20, 2001. In response, the plaintiff submitted his affidavit dated June 25, 2001. Therefore, the Court treats the defendants' motions as motions for summary judgment pursuant to Fed.R.Civ.P. 56 rather than as motions to dismiss under Fed.R.Civ.P. 12(b)(6).
The, standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.p. 56(c); see Celotex Core. v. Catrett, 477 U.S. 317(1986); Gallo v. Prudential Residential Servs. Ltd. Partnership, 22 F.3d 1219, 1223 (2d Cir. 1994). "The trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issuefinding; it does not extend to issue-resolution." Gallo, 22 F.3d at 1224. The moving party bears the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. The substantive law governing the case will identify those facts that are material and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248(1986).
In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587(1986) (citing United States v. Diebold. Inc., 369 U.S. 654, 655(1962)); see also Gallo, 22 F.3d at 1223. If the moving party meets its burden, the burden shifts to the nonmoving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). With respect to the issues on which summary judgment is sought, if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994).
Where, as here, a pro se litigant is involved, while the same standards for summary judgment apply, the pro se litigant "should be given special latitude in responding to a summary judgment motion." Smith v. Keane, No. 96 Civ. 1629, 1998 WL 146225, at *2 (S.D.N.Y. Mar. 25, 1998) (quotingGonzalez v. Long, 889 F. Supp. 639, 642 (E.D.N.Y. 1995) (internal quotation marks omitted)); see also Graham, 848 F.2d at 344 (noting that "special solicitude should be afforded pro se litigants generally, when confronted with motions for summary judgment"); Durven D. v. Giuliani, No. 98 Civ. 523, 2000 WL 1145425, at *2 (S.D.N.Y. Aug. 11, 2000).
II. A.
The Food Stamp Act ("FSA"), 7 U.S.C. § 2011 et seq., establishes a federally funded, state-administered program to alleviate hunger and malnutrition among low-income households. See 7 U.S.C. § 2011. The Program is administered nationally by the United States Secretary of Agriculture ("Secretary"), who is responsible for issuing regulations consistent with the FSA. See 7 U.S.C. § 2013(a). States that participate in the Food Stamp program designate a "state agency" that is responsible for administering the program on the state level. See 7 U.S.C. § 2012(n). A "stite agency," is defined by the FSA to include the agency of state government "which has the responsibility for the administration of the federally aided public assistance programs within" that state, and, in those states where public assistance programs are operated on a decentralized basis, the local administrative agencies administering those programs. 7 U.S.C. § 2012(n)(1). While the federal government bears responsibility for the cost of food stamp benefits, see 7 U.S.C. § 2013(a), the states share with the federal government the costs of administering the program. See 7 U.S.C. § 2025(a).
Participating states must submit a "state plan" to the Secretary of Agriculture for approval before that state may receive FSA funds. See 7 U.S.C. § 2020(d). The administrative requirements that participating states must comply with are set forth in 7 U.S.C. § 2020. The statute requires states to grant "a fair hearing and a prompt determination thereafter to any household aggrieved by the action of the State agency." 7 U.S.C. § 2020(e)(10). The Secretary of Agriculture has promulgated regulations establishing procedures for determining a household's eligibility for food stamp benefits, calculating a household's allotment of food stamp benefits, and for the provision of fair hearings. See 7 C.F.R. § 273.9, 273.10, 273.15.
New York participates in the federal Food Stamp program and has adopted a Food Stamp plan. See N.Y. Soc. Sec. Law § 95; see generally Rothstein v. Wyman, 467 F.2d 226, 232 (2d Cir. 1972). OTDA is the state agency responsible for the Food Stamp program. See N.Y. Soc. Sec. Law S 95; see also Moore v. Perales, No. CV-85-1638, 1990 WL 65058, at *1 (E.D.N.Y. May 2, 1990). New York has chosen to administer the Food Stamp program through local agencies, including HRA. See Reynolds v. Giuliani, 118 F. Supp.2d 352, 385 (S.D.N.Y. 2000).
Prior to April 1, 1997, OTDA was known as the Department of Social Services. See 1997 N.Y. Laws ch. 436, Pt. B, §§ 122, 130; see also Kemp v. Erie County Dept. of Social Services, 697 N.Y.S.2d 797, 798 (App.Div. 1999).
State regulations govern the local agencies' administration of the Food Stamp program, see N.Y. Comp. Codes R. Regs. tit. 18, part 387, and include a regulatory scheme by which a food stamp recipient can challenge the allotment of food stamp benefits. See N.Y. Comp. Codes R. Regs. tit. 18, § 358-1, et seq., If an applicant for food stamp benefits is dissatisfied with his allotment of food stamp benefits, the individual may challenge HRA's determination in a fair hearing before OTDA. See N.Y. Comp. Codes R. Regs. tit. 18, § 358-3.1; see also N.Y. Soc. Serv. Law 5 22. If a decision after a fair hearing is adverse to HRA, HRA is required to comply with the decision. See N.Y. Comp. Codes R. Regs. tit. 18, § 358-6.4(b)(2). The State, however, is ultimately responsible for compliance with the requirements of the FSA. See N.Y. Comp. Codes R. Regs. tit. 18, § 358-6.4(c); see also Reynolds, 118 F. Supp.2d at 385-86; Moore, 1990 WL 65058, at *2.
B.
The following facts are not in dispute, except where noted. The plaintiff completed a food stamp recertification application with HRA in July 2000. (Compl. ¶ 9 Ex. A.) On August 31, 2000, HRA issued a Notice of Intent to Change Food Stamp Benefits reducing the plaintiff's food stamp benefits from $216 per month to $96 per month effective on September 12, 2000. (Compl. ¶ 13 Ex. E; Declaration of Erica Michals dated December 14, 2000 ("Michals Dec. 2000 Decl."), ¶ 12 Ex. 1.). Also on August 31, 2000, OTDA issued a Notice of Fair Hearing in response to the plaintiff's August 21, 2000 request for a fair hearing informing the plaintiff that his fair hearing was scheduled for September 21, 2000. (Compl. Ex. F.) The Notice of Fair Hearing indicated that the HRA was directed to continue the plaintiff's food stamp benefits unchanged until the issuance of a fair hearing decision. (Compl. Ex. F.) The plaintiff alleges that the HRA failed to provide him with continuing benefits pending the fair hearing determination. (Compl. ¶ 15 Ex. G.)
On September 21, 2000, a fair hearing was held before an OTDA Administrative Law Judge ("ALJ"). (Michals Dec. 2000 Decl. ¶ 15.) On September 26, 2000, the ALJ rendered a decision ("September 2000 fair hearing decision") determining that HRA failed to present sufficient evidence to support its determination as to the plaintiff's entitlement to food stamp benefits and directing HRA to recompute the plaintiff's food stamp benefits, taking into account the plaintiff's utility expenses and his unreimbursed medical bills. The ALJ also directed HRA to restore any lost food stamp benefits retroactive to September 1999. (Compl. Ex. H; Michals Dec. 2000 Decl. ¶ 15 Ex. 3.)
HRA sent the plaintiff a notice dated October 2, 2000, requesting that he provide information with respect to his household income and other specified expenses and requiring him to report to HRA's local food stamp office with the requested information on October 6, 2000. (Michals Dec. 2000 Decl. Ex. 5.) The City Defendants allege that this information was necessary to enable HRA to compute the plaintiff's food stamp budget in accordance with the September 2000 fair hearing decision. (Michals Dec. 2000 Decl. ¶ 16.) The City Defendants allege that the plaintiff did not report to HRA's local food stamp office on October 6, 2000, and did not provide HRA with the requested information. (Michals Dec. 2000 Decl. ¶ 17.)
The plaintiff argues that he never received the October 2, 2000 letter from HRA and that, even if he had received the letter, it was procedurally defective because it did not give the plaintiff an adequate time to respond. (Pl.'s Reply ¶¶ 20-22.) The plaintiff also alleges that the items specified in the letter had already been submitted to HRA. (Pl.'s Reply ¶ 23.)
As a result of the plaintiff's alleged failure to cooperate, HRA allegedly independently assessed the plaintiff's household budget. (Michals Dec. 2000 Decl. ¶ 18.) In doing so, HRA allegedly contacted the New York City Housing Authority and learned that the plaintiff's rent payments were $119.91 per month. (Michals Dec. 2000 Decl. ¶ 18.) The plaintiff, in his food stamp recertification application submitted in July, indicated that his legal rent was $874.91 per month. (Compl. Ex. A at 16.) The City Defendants allege that, using the plaintiff's actual rent payment of $119.91 per month in its computation, the HRA recalculated the plaintiff's food stamp benefits and concluded that the plaintiff's food stamp benefits should be reduced from $96 to $10 per month. (Michals Dec. 2000 Decl. ¶ 19.) On October 10, 2000, HRA sent the plaintiff a Notice of Intent to Change Food Stamp Benefits indicating that the reduction to $10 per month would go into effect in November. (Compl. Ex. I.) The notice indicated that the reduction in food stamp benefits was based on verification of the plaintiff's rent and the plaintiff's failure to provide the information that was requested. (Compl. Ex. I.)
On November 15, 2000, the plaintiff requested a fair hearing challenging HRA's determination to reduce his food stamp benefits and a fair hearing was scheduled for December 19, 2000. (Michals Dec. 2-000 Decl. ¶ 21 Ex. 7; Affidavit of Michael B. Siller dated December 12, 2000 ("Siller Aff."), Ex. C.) The plaintiff filed this action on November 28, 2000, together with an order to show cause seeking a temporary restraining order ("TRO") and a preliminary injunction against the defendants for various forms of relief as set forth above. Following argument held on December 1, 2000, the Court denied the plaintiff's request for a TRO, but set a hearing date of December 22, 2000 for the application for a preliminary injunction.
On or about December 5, 2000, defendant Lovett provided a letter indicating that neither Lovett nor Mawash Rodman II-266 Corporation had ever paid for air conditioning for the plaintiff's apartment and that the plaintiff had three air conditioners in working condition. (Letter from Mitchell N. Ungar dated December 5, 2000, attached to Letter from Stephen F. Cincotta, dated December 25, 2000 ("Cincotta Dec. 25, 2000 Ltr.".)
Although the parties dispute what occurred at the fair hearing held on December 19, 2000 ("December 2000 fair hearing"), the OTDA reviewed the record and took the position that that the plaintiff voluntarily withdrew his request for a fair hearing and that the ALJ inappropriately took the plaintiff's withdrawal. (Declaration of Laura Corvo dated December 21, 2000 ("Corvo Dec. 2000 Decl.), Ex. 8.) OTDA reopened the plaintiff's fair hearing to address the merits of HRA's October 10, 2000 determination reducing the plAintiff's food stamp benefits and scheduled a new fair hearing for January 5, 2001. (Corvo Dec. 2000 Decl. Ex. 8.) On January 4, 2001, at the plaintiff's request and with the consent of the defendants, the Court stayed this action for 90 days. (See Order dated January 4, 2001; Cincotta Dec. 25, 2000 Ltr.) The Court, however, denied the plaintiff's request to stay the fair hearing scheduled for January 5, 2001. See Order dated January 4, 2001.
The fair hearing scheduled for January 5, 2001 and a fair hearing rescheduled for February 15, 2001, were both adjourned at the plaintiff's request. (Letter dated February 15, 2001 from Russell J. Hanks, attached to Letter from Michael B. Siller dated February 20, 2001 (hereinafter "Hanks February 15, 2001 Ltr.").) Another fair hearing was scheduled for March 12, 2001. (Hanks February 15, 2001 Ltr.) By Letter dated February 22, 2001, the plaintiff requested that the Court lift the stay and grant the plaintiff his request for a preliminary injunction. (Cincotta Feb. 22, 2001 Ltr.) The Court denied the request. (See Order dated February 26, 2001.)
On March 19, 2001, the plaintiff submitted a motion ("March 19, 2001 motion") requesting various forms of ancillary relief, including striking the State Defendants' December 19, 2000 fair hearing transcript and replacing it with a transcript submitted by the plaintiff as Exhibit A to his Sur-Reply. The plaintiff also asked the Court to restore lost food stamp benefits in theamount of $1,802.00 and establish the plaintiff's food stamp benefit allotment to be $238.00 for the remainder of the certification period, plus any increases as set forth in the Federal Register.
Also on March 19, 2001, the State defendants informed the Court that the plaintiff failed to appear for his fair hearing scheduled for March 12, 2001 and that OTDA had determined that, pursuant to N.Y. Comp. Codes R. Regs. tit. 18, § 358-5.5, the plaintiff was in default. (Letter from Michael B. Siller dated March 19, 2001.) On March 22, 2001, the Court set a schedule for the briefing of the March 19, 2001 motion and reminded the plaintiff that his obligation to attend a fair hearing "had not been stayed in any way." See Order dated March 22, 2001.
On March 26, 2001, the plaintiff called OTDA to explain his failure 40 appear at the March 12, 2001 scheduled fair hearing. (Affidavit of David B. Amiraian sworn to April 4, 2001 ("Amiraian Aff."), ¶ 23.) OTDA concluded that the plaintiff's explanation for defaulting the March 12, 2001 fair hearing did not constitute good cause under N.Y. Comp. Codes R. Regs. tit. 18, § 358— 5.5. (Amiraian Aff. ¶ 23 Lx. D.) OTDA, however, processed a new fair hearing request based on the plaintiff's March 26, 2001 telephone call and scheduled a fair hearing for April 19, 2001. (Amiraian Aff. Ex. D.) The plaintiff responded by arguing that requiring the plaintiff to attend any further fair hearings wis fruitless. (Pl.'s Reply submitted for March 19, 2001 motion ¶ 3.) The plaintiff failed to appear for the fair hearing scheduled for April 19, 2001 and OTDA determined that the plaintiff had defaulted. (Letter from Michael B. Siller dated April 20, 2001; Declaration of Erica Michals dated May 7, 2001 ("Michals May 2001 Decl."), ¶ 26.)
III.
To state a claim under Section 1983, a plaintiff "must allege (1) that the conduct complained of was committed by a person acting under color of state law, and (2) that such conduct deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States." Dwyer v. Regan, 777 F.2d 825, 828 (2d Cir. 1985), modified on other grounds, 793 F.2d 457 (2d Cir. 1986); see also Finley v. Giacobbe, 79 F.3d 1285, 1296 (2d Cir. 1996); Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir. 1996).
The plaintiff alleges that HRA's calculation of his food stamp benefits in October 2000 is incorrect and violated various provisions of the FSA and its implementing regulations. specifically, the plaintiff alleges that, irrespective of the ALJ's September 2000 fair hearing decision, HRA failed to apply properly a Food Stamp Utility Allowance Level One ("FSUA Level One"), which corresponds to a shelter deduction for heating and cooling utilities, utilities not used to heat and cool, and basic service for onetelephone. (Compl. ¶ 21; Pl.'s Sur-Reply 39-40.) The plaintiff also contends that HRA failed to deduct properly allowable medical deductions. (Compl. ¶ 21; Pl.'s Sur-Reply ¶¶ 39-40.)
The plaintiff also asserts that OTDA improperly changed the issues to be reviewed and the relief to be sought at the fair hearing that was reopened after the December 19, 2000 fair hearing. (Pl.'s Sur-Reply ¶¶ 30-31.) The plaintiff contends that this change violates due process because it alters his rights. (Pl.'s Sur-Reply ¶¶ 32, 34, 52.) The plaintiff also alleges that OTDA violated his due process rights by not issuing a decision after the December 19, 2000 fair hearing, and by failing to exercise its regulatory duties to secure HRA's compliance with the September 26, 2000 fair hearing decision. (Pl.'s Sur-Reply ¶¶ 53-; 54; Pl.'s Reply submitted for March 19, 2001 motion ¶¶ 17-18.)
As a pro se pleading, the plaintiff's Complaint is construed liberally. See Haines v. Kerner, 404 U.S. 519, 520 (1972); LaBounty v. Adler, 933 F.2d 121, 122 (2d Cir. 1991) Construing the plaintiff's complaint liberally, the plaintiff alleges causes of action against the State and City defendants under Section 1983 for violations of various provisions of the FSA and its implementing regulations and for violations of due process. The plaintiff seeks injunctive relief and money damages for lost food stamp benefits.
IV.
Initially, the State and City defendants argue that Cincotta is not permitted to represent his daughter, Camilia Cincotta. The Court of Appeals for the Second Circuit has explicitly held that a nonattorney parent may not represent his child pro se in federal court. Wegner v. Canastota Cent. Sch. Dist., 146 F.3d 123, 124 (2d Cir. 1998) (per curiam), cert. denied, 526 U.S. 1025(1999); Cheuna v. Youth Orch. Found. of Buffalo, 906 F.2d 59, 61 (2d Cir. 1990). But cf. Maldonado v. Apfel, 55 F. Supp.2d 296, 302-08 (S.D.N.Y. 1999) (finding that parents may represent their children pro se in Social Security appeals). In this case, the parties do not dispute that the plaintiff's daughter is a minor. Thus, because the plaintiff is not represented by counsel, the claims brought on behalf of his daughter are dismissed without prejudice.
In accordance with Wegner and Cheung the Court has considered whether counsel should be appointed for Camilia Cincotta. However, there is an insufficient indication in the papers of a likelihood of merit to claims of Camilia Cincotta to justify appointment of counsel in this case. Therefore, the Court declines to appoint counsel. See Wenger, 146 F.3d at 125; Hodge v. Police Officers, 802 F.2d 58, 61-62 (2d Cir. 1986) Moreover, in accordance with Wenger and Cheung the claims of Camilia Cincotta are dismissed without prejudice.
V.
The State Defendants argue that the Eleventh Amendment bars the plaintiff's claims. The plaintiff asserts claims for both money damages to compensate the plaintiff for all injuries resulting from the failure to issue his alleged proper food stamp allotment, including payment for lost benefits, and for prospective injunctive relief.
The Eleventh Amendment provides that "[t]he Judicial Power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const. amend. XI. "The Supreme Court has consistently held that the federal courts lack jurisdiction not only over suits against a state brought by citizens of other states, as the literal language of the Amendment provides, but also over suits against such states brought by their own citizens." Dwyer, 777 F.2d at 835 (citing Edelman v. Jordan, 415 U.S. 651(1974)). A state itself cannot be sued in federal court unless it consents to such a suit or when Congress pursuant to a valid exercise of its power, unequivocally states its intent to abrogate the state's immunity. See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 58-59 (1996); New York City Health and Hosp. Corp. v. Perales, 50 F.3d 129, 134 (2d Cir. 1995); Dube v. State Univ. of New York, 900 F.2d 587, 594 (2d Cir. 1990).
State immunity extends to claims brought against state agencies. See Pennhurst State Sch. Hosp. v. Halderman, 465 U.S. 89, 100(1984);Burnette v. Carothers, 192 F.3d 52, 57 (2d Cir. 1999), cert denied, 121 S.Ct. 657(2000); Komlosi v. New York State Office of Mental Retardation Developmental Disabilities, 64 F.3d 810, 815 (2d Cir. 1995). The Eleventh Amendment also bars suits against state officials when "the state is the real, substantial party in interest" regardless of whether a party seeks damages or injunctive relief. Pennhurst, 465 U.S. at 101 (quotation omitted); see also Jordan, 192 F.3d at 57.
New York State has neither waived immunity nor is there any clear congressional legislation that overrides Eleventh Amendment immunity in this case. It is well settled that Congress did not abrogate Eleventh Amendment immunity in adopting section 1983. See Ouern v. Jordan, 440 U.S. 332, 340-42(1979); Dube, 900 F.2d at 594. Moreover, a state, state officials sued in their official capacity, and those state agencies considered to be "`arms of the state' for Eleventh Amendment purposes" cannot be sued under Section 1983 because they are not "persons" under the statute. Will v. Michigan Dept. of Police, 491 U.S. 58, 70-71(1989) (citation omitted); Komlosi, 64 F.3d at 815; Dube, 900 F.2d at 595.
The Supreme Court's decision in Will is premised upon a statutory interpretation of Section 1983, rather than a determination of Eleventh Amendment immunity, although the Eleventh Amendment was a relevant consideration in the Court's decision. See Hilton v. South Carolina Pub. Rys. Comm'n, 502 U.S. 197, 205(1991); Komlosi, 64 F.3d at 815 n. 3.
An important exception to the general Eleventh Amendment rule barring claims against state officials acting in their official capacities, first set forth in Ex Parte Young, 209 U.S. 123(1908), provides that that the Eleventh Amendment does not bars suits seeking prospective injunctive or declaratory relief against state officials acting in violation of federal law because such action is not considered an action of the state. See Young, 209 U.S. at 159-60; see also Pennhurst, 465 U.S. at 102-103;Edelman, 415 U.S. at 677; Burnette, 192 F.3d at 57 n. 3; Kostok v. Thomas, 105 F.3d 65, 68 (2d Cir. 1997). In addition, under Will, a state official sued "in his or her official capacity, would be a person under § 1983 because `official capacity actions for prospective relief are not treated as actions against the State.'" Will, 491 U.S. at 71 n. 10 (quoting Kentucky v. Graham, 473 U.S. 159, 167 n. 14 (1985)). The Eleventh Amendment, however, bars claims for retroactive monetary relief under any name. Kostok, 105 F.3d at 69.
In this case the plaintiff's claims against all of the State Defendants are barred by the Eleventh Amendment and by the Supreme Court's decision in Will. OTDA and DOH are agencies of New York State and thus cannot be sued under Section 1983 and are otherwise immune from suit in federal court under the Eleventh Amendment for the alleged claims in this case. In addition, the plaintiff has not made any allegations against DOH in his Complaint nor has he submitted any evidence indicating that DOH had any involvement in any alleged violations of his federal rights. In fact, during the argument on the plaintiff's application for a TRO, the plaintiff indicated that he would not contest "severing" DOH from this action. (Transcript dated December 1, 2000 ("December 1, 2000 Tr."), at 16.)
With respect to the Attorney General, it is not clear from the Complaint whether the plaintiff intended to bring claims against the Attorney General's Office or has attempted to name the Attorney General in his official capacity because there are no allegations made against the Attorney General or the Attorney General's Office in the Complaint. The plaintiff, however, appears to be suing the Attorney General's Office as a state entity rather than the Attorney General in his official capacity. The plaintiff indicated at oral argument on his request for a TRO that he joined the Attorney General because he was concerned about joining all necessary parties and he wanted someone from the Attorney General's office at the hearing. (December 1, 2000 Tr. at 14-16.) In addition, the plaintiff fails to refer to the Attorney General by name in his Complaint nor does he allege any conduct by the Attorney General himself.
Even if the Complaint was construed to allege an action against the Attorney General in his official capacity, New York State is clearly the real, substantial party in interest because a decree against the Attorney General in this case would operate against New York State, thus barring any claims for monetary damages for accrued liability. See Pennhurst, 465 U.S. at 101. In addition, state officers in their official capacities, like States themselves, are not amenable to suit for damages under Section 1983. Will, 491 U.S. at 71.
Moreover, to the extent the plaintiff seeks prospective injunctive relief, the plaintiff has not made any allegations of any wrongdoing on the part of the Attorney General, nor has he alleged or submitted any evidence indicating that the Attorney General has in any way acted in violation of federal law such that the exception to Eleventh Amendment immunity set forth in Young applies. Thus, the plaintiff has not shown that the Attorney General, acting in his official capacity, had "a direct connection to, or responsibility for, the alleged illegal action."Marshall v. Switzer, 900 F. Supp. 604, 615 (N.D.N Y 1995) (collecting cases). Accordingly, any claims against the Attorney General in his official capacity must be dismissed.
In sum, to the extent the plaintiff seeks money damages from the State defendants for past injury or to deter future wrongdoing, the plaintiff's claims are not cognizable under Section 1983 and are also precluded by the Eleventh Amendment. Insofar as the plaintiff seeks prospective injunctive relief against the State Defendants, the Court cannot consider such relief because the plaintiff has not sought such relief against any named official with any connection to any alleged wrongdoing against the plaintiff. See Santiago v. New York State Dept. of Corr. Servs., 945 F.2d 25, 32 (2d Cir. 1991); Bryant v. New York State Dept. of Corr. Servs., 00 Civ. 3728, 2001 WL 669257, at *3 (S.D.N.Y. Jun. 14, 2001);Gyadu v. Workers' Compensation Comm'n, 47 F. Supp.2d 272, 274 (D. Conn. 1999). Accordingly, the State Defendants are entitled to summary judgment dismissing the plaintiff's claims against the State Defendants. However, given the plaintiff's pro se status, this dismissal is without prejudice to the plaintiff's assertion of any appropriate claim, consistent with Ex parte Young, against a state official in that official's official capacity. Any such amended complaint must be filed within thirty (30) days.
VI.
The City defendants move for summary judgment on the grounds that the City Defendants lacked the capacity to be sued and the plaintiff has failed to establish a policy or custom pursuant to which the plaintiff's constitutional rights were violated.
The plaintiff has named HRA and the Corporation Counsel as defendants in this action. This lawsuit must be dismissed against HRA and the Corporation Counsel because neither entities are suable entities; rather, any claims that the plaintiff seeks to bring for the actions of those entities must be brought against the City of New York. See e.g., Hoffman v. City of New York, No. 97 Civ. 4284, 1998 WL 212894, at *1 n. 1 (E.D.N.Y. Apr. 28, 1998), aff'd 172 F.3d 37 (2d Cir. 1999); Rivera v. City of New York, No. 95 Civ. 3308, 1997 WL 539776, at *5-6 (S.D.N Y Aug. 28, 1997); Am. Tel. Tel. Co. v. New York City Dept. of Human Resources, 736 F. Supp. 496, 498 (S.D.N.Y. 1990). In addition, the plaintiff has not even made any allegations against the Corporation Counsel nor has he proffered any evidence that suggests that the Corporation Counsel violated his federal rights.
Even-construing the Complaint as an action against the City of New York, there is no evidence to create a triable issue of material fact as to whether the City of New York has a policy or custom pursuant to which the plaintiffs' rights under the FSA and Fourteenth Amendment were violated. A municipality may not be held liable under Section 1983 on a respondeat superior basis. See Monell v. Department of Social Servs. of the City of New York, 436 U.S. 658, 691(1978); see also Board of the County Comm'rs of Bryan County, Oklahoma v. Brown, 520 U.S. 397, 403 (1997). In order to impose Section 1983 liability upon a municipality, a plaintiff must identify a municipal "policy" or "custom" that caused the plaintiff's injury. See Monell, 436 U.S. at 694; see also Brown, 520 U.S. at 403. The plaintiff must demonstrate that the municipality was the "moving force" behind the injury alleged. See Brown, 520 U.S. at 404;Monell, 436 U.S, at 692. "That is, the plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between a municipal action and the deprivation of federal rights." Brown, 520 U.S. at 404.
Here, the plaintiff has failed to meet the requirements to hold the municipality liable under Section 1983. The plaintiff has not indicated or even alleged a municipal policy or custom that caused his injury, nor has he proffered any evidence of any violation of his federal rights resulting from a municipal policy or custom. Thus, even had the plaintiff sued the City of New York, the City of New York would be entitled to summary judgment on the plaintiff's Section 1983 claims. See Durven D, 2000 WL 1145425, at *9; King v. Department of Corrections, 95 Civ. 3057, 1998 WL 67669, at *3 (S.D.N.Y. Feb. 18, 1998). Accordingly, the City Defendants' motion for summary judgment is granted.
It is unnecessary to reach the State and City Defendants' alternative argument that the Court should dismiss this action under the doctrine of abstention set forth in Younger v. Harris, 401 U.S. 37(1971). It is also unnecessary to consider the City Defendants' argument that the plaintiff's claims are not yet ripe for review.
VII.
The plaintiff has named Lovett as a defendant in this action. The plaintiff seeks a preliminary injunction against Lovett requiring Lovett to submit a letter stating that it or Mawash Realty Corporation does or does not pay the costs of cooling the plaintiff's residence. The plaintiff also seeks a preliminary injunction against Lovett, along with the remaining defendants, to compensate the plaintiff for his alleged injuries resulting from the failure to issue his alleged proper food stamp allotment from August 31, 2000 onward and to compensate the plaintiff for all reasonable attorney's fees and costs.On or about December 5, 2000, Lovett provided the plaintiff the letter he sought and thus his request for a preliminary injunction requiring Lovett to submit a letter is now moot. (Letter from Mitchell N. Ungar dated December 5, 2000, attached to Cincotta Dec. 25, 2000 Ltr.) At the argument on the plaintiff's motion for a preliminary injunction on December 22, 2000, the Court raised with the plaintiff whether the plaintiff wished to dismiss Lovett at that time and inquired as to the basis for keeping Lovett in this action. (Transcript dated December 22, 2000 ("December 22, 2000 Tr.") at 33-34; see also December 1, 2000 Tr. at 23.) The plaintiff indicated that he still wished to seek the assessment of costs against Lovett. (December 22, 2000 Tr. at 33.)
The plaintiff's claim against Lovett is dismissed for lack of jurisdiction. Although the plaintiff seeks injunctive relief against Lovett, the plaintiff has not made any allegations against Lovett in his Complaint nor has he stated any cognizable cause of action against Lovett. Moreover, the plaintiff has not sought to amend his Complaint to state a cause of action against Lovett despite having been warned by the Court that there was no claim against Lovett stated in the Complaint. (December 22, 2000 Tr. at 33-34.) In addition, Lovett has now provided the plaintiff with the letter he requested and the plaintiff has not submitted any evidence to support his assertion that he is entitled to costs from Lovett. Moreover, the plaintiff has failed to provide any basis in law for his allegation that Lovett had any legal requirement to provide the letter that the plaintiff received. Thus, because the plaintiff has failed to state any cognizable federal cause of action against Lovett in his Complaint, this Court lacks jurisdiction over Lovett and Lovett is dismissed from this action.
The plaintiff points to various regulations that provide for the requirements of leases for Section 8 housing, but there is no regulation to which he points that requires the type of letter that he describes in his papers. See 24 C.F.R. § 982.308(b)(1) (d)(5) (describing lease requirements).
VIII.
The plaintiff moves for a preliminary injunction against the State Defendants and City Defendants to: (1) increase his current allotment of food stamp benefits to a minimum of 238 coupons per month and restoring all lost benefits after August 31, 2000; (2) prevent the State Defendants and City Defendants from executing a food stamp recoupment against the plaintiff; (3) submit to the Court a copy of plaintiff's entire Food Stamp file; and (4) comply with OTDA's Administrative Fair Hearing Order rendered on September 26, 2000. The plaintiff also sought additional relief, described at the outset of this Opinion, including compensation for all injuries for failing to issue his alleged proper food stamp allotment.
The standards governing the issuance of a preliminary injunction are well established. "[A] party seeking a preliminary injunction must demonstrate (1) the likelihood of irreparable injury in the absence of such an injunction, and (2) either (a) likelihood of success on the merits or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation plus a balance of hardships tipping decidedly toward the party requesting the preliminary relief." Federal Express Corp. v. Federal Espresso. Inc., 201 F.3d 168, 173 (2d Cir. 2000). "Where, as here, a preliminary injunction `seeks to stay governmental action taken in the public interest pursuant to a statutory or regulatory scheme,' the less rigorous fair-ground-for-litigation standard should not be applied." Sweeney v. Bane, 996 F.2d 1384, 1388 (2d Cir. 1993) (quoting Plaza Health Labs., Inc. v. Perales, 878 F.2d 577, 580 (2d Cir. 1989)); see also Latino Officers Assoc., New York. Inc. v. The City of New York, 196 F.3d 458, 462 (2d Cir. 1999), cert. denied, 528 U.S. 1159 (2000); Jolly v. Coughlin, 76 F.3d 468, 473 (2d Cir. 1996);Morel v. Giuliani, 927 F. Supp. 622, 634 (S.D.N.Y. 1995), amended, 1996 WL 627730 (S.D.N.Y. Mar. 15, 1996).
The State Defendants argue that an even higher standard applies to the plaintiff's motion for preliminary injunction. A moving party must make a "clear" or "substantial" showing of a likelihood of success where "(1) the injunction sought `will alter, rather than maintain, the status quo'- i.e., is properly characterized as a `mandatory' rather than `prohibitory' injunction; or (2) the injunction sought `will provide the movant with substantially all the relief sought, and that relief cannot be undone even if the defendant prevails at a trial on the merits.'"Jolly, 76 F.3d at 473 (quoting Tom Doherty Assocs., Inc. v. Saban Entertainment. Inc., 60 F.3d 27, 33-34 (2d Cir. 1995). Because the Court finds that the plaintiff has not established a likelihood of success on the merits, it is unnecessary to decide whether this higher standard applies in this case.
The loss or potential loss of welfare benefits, including food stamp benefits, can constitute irreparable injury warranting the issuance of a preliminary injunction. See Reynolds v. Giuliani, 35 F. Supp.2d 331, 339-40 (S.D.N.Y.), modified in part, 43 F. Supp.2d 492 (S.D.N.Y. 1999);Morel, 927 F. Supp. at 635; Brown v. Giuliani, 158 F.R.D. 251, 264-65 (E.D.N.Y. 1994); Hurley v. Toia, 432 F. Supp. 1170, 1176-78 (S.D.N.Y.),aff'd, 573 F.2d 1291 (2d Cir. 1977). In this case, as in other comparable cases involving recipients of welfare benefits, the plaintiff has adequately shown immediate and irreparable harm based on his need for benefits.
However, for the reasons explained above, the plaintiff has not demonstrated a likelihood of success on the merits of his claims. Indeed, the Court has concluded that summary judgment should be granted in favor of the defendants and that the plaintiff's claims should be dismissed at this time. Thus, the plaintiff's motion for a preliminary injunction is denied.
Even if the less rigorous "fair ground for litigation" standard could be applied in this case, the plaintiff has not met that standard as evidenced by the Court's conclusion that summary judgment should be granted in favor of the defendants.
IX.
The plaintiff has requested various forms of ancillary relief in his March 19, 2001 motion. To the extent that the plaintiff moves to have the Court consider various supplemental papers, including the plaintiff's Sur-Reply, the motion is granted because the Court has considered all of the papers submitted by the parties. To the extent that the plaintiff seeks any other ancillary relief, the motion is denied as moot.CONCLUSION
For the foregoing reasons, any claims by Camilia Cincotta are dismissed without prejudice. The State Defendants' cross-motion for summary judgment is granted without prejudice to the filing of an amended complaint within thirty (30) days consistent with this Opinion. The City Defendants' cross-motion for summary judgment pursuant to Fed.R.Civ.P. 56 is granted. The plaintiff's motion for a preliminary injunction is denied. The plaintiff's March 19, 2001 motion is denied except to the extent that the plaintiff moved to have the Court consider various supplemental papers.
SO ORDERED.