09-1143-cv
Kitchen v. Phipps Houses Group of Cos.


                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                         SUMMARY ORDER

RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W HEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.


      At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 9 th day of June, two thousand ten.

PRESENT:         JOSEPH M. McLAUGHLIN,
                 CHESTER J. STRAUB,
                 REENA RAGGI,
                                          Circuit Judges.
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WILLIAM KITCHEN,
                                          Plaintiff-Appellant,

                               v.                                        No. 09-1143-cv

PHIPPS HOUSES GROUP OF COMPANIES, PHIPPS
HOUSES SERVICES INC., 1691 FULTON AVENUE
ASSOCIATE LP, CROTONA PARK WEST HOUSING
DEVELOPMENT FUND CORPORATION, LYNDA
SIMMONS HOMES, CITY OF NEW YORK
DEPARTMENT OF BUILDINGS, CITY OF NEW
YORK DEPARTMENT OF ENVIRONMENTAL
PROTECTION, C.E.O. ADAM WEINSTEIN, GEORGE
MORRIS-Worker, HOUSING PRESERVATION
DEVELOPMENT,
                           Defendants-Appellees,

CROTONA ESTATES ASSOCIATES, CRESCENT
EASTERN CONSTRUCTIONS CORP, HON.
J. KLEIN, CIVIL COURT OF THE CITY OF
NEW YORK, FJC SECURITY, PRC MANAGEMENT,
                                          Defendants.
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APPEARING FOR APPELLANT:                          WILLIAM KITCHEN, pro se, New York, New
                                                  York.

APPEARING FOR APPELLEES:                          JAMES W. WELLER (Joseph J. Ortego, on the
                                                  brief), Nixon Peabody LLP, Jericho, New York,
                                                  for Defendants-Appellees Phipps Houses Group
                                                  of Companies, Phipps Houses Services, Inc., 1691
                                                  Fulton Avenue Associates L.P., Crotona Park
                                                  West Housing Development Fund Corporation,
                                                  Lynda Simmons Homes, Adam Weinstein and
                                                  George Morris.

                                                  MORDECAI NEWMAN, Assistant Corporation
                                                  Counsel (Larry A. Sonnenshein, Assistant
                                                  Corporation Counsel, on the brief), for Michael
                                                  A. Cardozo, Corporation Counsel of the City of
                                                  New York, New York, New York, on behalf of
                                                  Defendants-Appellees New York City Department
                                                  of Buildings, New York City Department of
                                                  Environmental Protection, and New York City
                                                  Department of Housing Preservation and
                                                  Development.

        Appeal from the United States District Court for the Southern District of New York

(Denny Chin, Judge).

        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court entered on February 4, 2009, is

AFFIRMED.

        Pro se plaintiff William Kitchen appeals the dismissal of his complaint alleging that

the condition of his former apartment and his treatment in a state landlord-tenant proceeding

violated his rights under federal and state law. We review the challenged dismissal de novo,

                                                     2
see Morrison v. City of New York, 591 F.3d 109, 112 (2d Cir. 2010); Curto v. Edmundson,

392 F.3d 502, 503 (2d Cir. 2004), assuming the parties’ familiarity with the facts and the

record of prior proceedings, which we reference only as necessary to explain our decision.

       Upon independent review of the record, we conclude, for substantially the reasons

stated by the district court, see Kitchen v. Phipps Houses Group of Cos., No. 08 Civ. 4296,

2009 WL 290470 (S.D.N.Y. Feb. 5, 2009), that Kitchen’s complaint was properly dismissed

under Fed. R. Civ. P. 12(b)(6) for failure to state a claim.

       To avoid dismissal under Rule 12(b)(6), Kitchen was required to plead “enough facts

to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007). A claim will have “facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is liable for

the misconduct alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Construing

Kitchen’s complaint liberally, as we must, accepting all factual allegations as true, and

drawing all reasonable inferences in his favor, see Harris v. Mills, 572 F.3d 66, 71-72 (2d

Cir. 2009) (applying Twombly and Iqbal to pro se complaint), we conclude that Kitchen has

failed to satisfy this pleading burden.1

       Although Kitchen alleges various health and maintenance problems at his former

apartment and dissatisfaction with landlord-tenant proceedings, he fails to assert any facts



       1
       Because Kitchen’s federal claims cannot survive a Rule 12(b)(6) motion to dismiss,
we need not consider whether the claims are also barred by the Rooker-Feldman doctrine.

                                              3
that plausibly link these circumstances to his race or disability. Indeed, Kitchen does not

even identify his disability. Kitchen’s conclusory discrimination claims – which appear to

be brought under 42 U.S.C. § 1983 – were therefore properly dismissed.2

       Because the district court properly dismissed Kitchen’s federal claims,3 we identify

no abuse of discretion in its dismissal of his state law claims. See New York Mercantile

Exch., Inc. v. IntercontinentalExch., Inc., 497 F.3d 109, 113 (2d Cir. 2007) (reviewing

decision declining to exercise supplemental jurisdiction for abuse of discretion); Purgess v.

Sharrock, 33 F.3d 134, 138 (2d Cir. 1994) (noting that where federal claims in action

premised on federal question jurisdiction “are dismissed before trial, even though not

insubstantial in a jurisdictional sense, the state claims should be dismissed as well” (internal

quotation marks omitted)).




       2
         To the extent Kitchen now invokes the Civil Rights Act of 1964, 42 U.S.C. § 2000e
et seq., as the basis for his complaint, that claim is being raised for the first time on appeal
and, therefore, is not properly before the court. See In re Nortel Networks Corp. Sec. Litig.,
539 F.3d 129, 132 (2d Cir. 2008). In any event, to the extent that statute focuses on
discrimination in employment, it is not applicable to Kitchen’s case. It is possible that
Kitchen intended to reference the Civil Rights Act of 1968, also known as the Fair Housing
Act, 42 U.S.C. § 3601 et seq. Kitchen’s claim fares no better under that statute than under
§ 1983. In either case, he must plead some facts that plausibly link his housing maintenance
concerns or dissatisfaction with landlord-tenant proceedings to race or disability bias. He has
not done so.
       3
         Insofar as Kitchen invoked the Comprehensive Environmental Response,
Compensation, and Liability Act, 42 U.S.C. § 9601 et seq., at oral argument, no such claim
was raised in the district court. The claim is therefore waived. See In re Nortel Networks
Corp. Sec. Litig., 539 F.3d at 132.

                                               4
       We have considered Kitchen’s remaining arguments on appeal and conclude that they

are without merit. For the foregoing reasons, the February 4, 2009 judgment of the district

court is AFFIRMED.

                                   FOR THE COURT:
                                   CATHERINE O’HAGAN WOLFE, Clerk of Court




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