Perez v. Carrion

Background

Eric Andrew Perez, who appeared without a lawyer, sued Andrew Carrión Jr., Commissioner of the New York City Department of Housing Preservation and Development (HPD); Kim Truluck, an HPD Section 8 Representative; and Racquel Urena, an HPD Family Self-Sufficiency Program Specialist/Case Manager. Perez asserted criminal violations and attempted to bring claims under, among other statutes, the Fair Housing Act, the Americans with Disabilities Act, and the Racketeer Influenced and Corrupt Organizations Act. He sought damages and injunctive relief related to his Section 8 benefits, Family Self-Sufficiency escrow account, and HPD Home Buyers Program application.

The court had previously allowed Perez to proceed without prepaying filing fees. Because the complaint was filed without prepayment of fees, the court reviewed it under the federal screening statute, which requires dismissal of claims that are frivolous, fail to state a legally sufficient claim, seek relief from an immune defendant, or fall outside the court’s subject-matter jurisdiction. The court also applied the rule requiring a complaint to contain enough factual allegations to make a claim plausible.

Criminal-prosecution and mandamus claims

The court dismissed Perez’s claims seeking investigation or criminal prosecution of the defendants for lack of subject-matter jurisdiction. It explained that a private person cannot direct prosecutors to bring criminal charges because the decision to prosecute belongs to prosecutors, and Perez therefore lacked standing to seek prosecution of others.

The court also dismissed Perez’s mandamus claims for failure to state a claim. Mandamus is a court order compelling an official to perform a required act, but the federal mandamus statute applies only to federal officers, employees, or agencies. Perez named officers of the New York City HPD, not federal officials.

Claims construed under Section 1983

The court construed Perez’s remaining federal claims as claims under 42 U.S.C. § 1983, rather than claims under the Fair Housing Act, the Americans with Disabilities Act, or the Racketeer Influenced and Corrupt Organizations Act. The court said the allegations concerned the actual or expected reduction or termination of Section 8 or Family Self-Sufficiency benefits, but did not allege discrimination or racketeering. Section 1983 permits claims for violations of constitutional rights by state or local officials acting under state law.

The court dismissed Perez’s substantive due process claims based on an alleged failure to investigate harm or potential harm. It explained that government officials generally do not have a constitutional duty to investigate or protect an individual from harm. The court identified exceptions involving a person held in government custody or officials who affirmatively create or increase danger, but found that Perez alleged no facts bringing his claims within either exception.

The court dismissed the Section 1983 claims against Commissioner Carrión because Perez alleged no facts showing Carrión’s direct and personal involvement in the alleged constitutional violations. The court stated that a supervisor cannot be held liable merely because someone the supervisor employs or oversees allegedly violated a person’s rights. The court granted Perez leave to replead these claims.

The court construed the claims against Truluck and Urena as alleging denial of procedural due process concerning Section 8 and Family Self-Sufficiency benefits. Procedural due process generally requires notice and a meaningful opportunity to be heard before the government takes away a protected property interest. The court noted that housing subsidies, including Section 8 benefits, can qualify as protected property interests.

The court dismissed these claims because Perez did not allege facts showing that he was denied notice, a hearing, or another required procedure before an established government process reduced or terminated his benefits. To the extent he alleged that officials had randomly and without authorization reduced or terminated the benefits, he did not allege that he had pursued a state-court proceeding under Article 78 or explain why that remedy was inadequate. The court granted leave to replead these claims by alleging how he was denied required procedures concerning an actual or proposed adverse action.

Other requests

The court denied Perez’s application for a temporary restraining order. A temporary restraining order is immediate injunctive relief, and the court found that Perez’s submissions did not show a likelihood of success, sufficiently serious questions for litigation, or a favorable balance of hardships. The denial was without prejudice to renewal after Perez filed an amended complaint.

The court denied Perez’s application asking the court to request volunteer counsel without prejudice to filing another application after submitting an amended complaint. The court also denied his request that defendants be served without prejudice to seeking service again after amendment. It denied his motion for an electronic filing username and password without prejudice to filing a later motion after completing the relevant requirements.

Disposition

The court dismissed the action and dismissed Perez’s federal claims for lack of subject-matter jurisdiction and failure to state a claim. It granted Perez 30 days to file an amended complaint and granted his motion for leave to amend. If he failed to amend within the permitted period without showing good cause, the court stated that it would enter judgment dismissing the action and decline to consider the state-law claims under supplemental jurisdiction. The court also certified that an appeal would not be taken in good faith and denied fee-free status for an appeal.