    16-3609-cv
    Tull v. New York City Housing Authority




                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                         SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY
ORDER MUST 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
    on the 14th day of February, two thousand eighteen.

    PRESENT:
                ROBERT D. SACK,
                DEBRA ANN LIVINGSTON,
                SUSAN L. CARNEY,
                      Circuit Judges.
    _____________________________________

    ROSALINDA TULL,

                               Plaintiff-Appellant,

                      v.                                                       16-3609-cv

    NEW YORK CITY HOUSING AUTHORITY,

                               Defendant-Appellee,

    NEW YORK CITY HOUSING AUTHORITY-PENN-WORTMAN
    HOUSES MANAGEMENT OFFICE, EDITH ATKINS-JOHN,
    MANAGER, FRANCIA ASTUDILLO, HOUSING ASSISTANT,
    YVONNE JONES, PREVIOUS MANAGER FOR PENN-WORTMAN
    HOUSES, EUGENE MELFA, PREVIOUS MANAGER FOR PENN-
    WORTMAN HOUSES, NEW YORK CITY HOUSING AUTHORITY-
    BROOKLYN BOROUGH MANAGEMENT OFFICE, PHILLIP
    CALANDRILLO,    BROOKLYN    BOROUGH     DIRECTOR,
    MARGUERITE MANN, PREVIOUS BROOKLYN BOROUGH
    DIRECTOR, DARRELL LAVAL, BROOKLYN BOROUGH

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ADMINISTRATOR, DENISE BROCKINGTON, BROOKLYN
BOROUGH ADMINISTRATOR, NEW YORK CITY HOUSING
AUTHORITY ENVIRONMENTAL HEALTH & SAFETY
UNIT/ASBESTOS, MIKHAIL GINZBURG, TECHNICAL SERVICES,
SHOLA OLATOYE, CEO AND CHAIR, JOHN RHEA, PREVIOUS
CHAIRMAN, BRUNO CALCEDINO, DEPARTMENT OF GENERAL
MANAGEMENT OPERATIONS, EXECUTIVE DEPARTMENT,
CARLOS G. LABOY-DIAZ, DEPARTMENT OF GENERAL
MANAGEMENT OPERATIONS, EXECUTIVE DEPARTMENT,
GLORIA FINKELMAN, DEPARTMENT OF GENERAL
MANAGEMENT OPERATIONS, EXECUTIVE DEPARTMENT,
CECIL HOUSE, BOARD MEMBER, MARGARITA LOPEZ, BOARD
MEMBER, NEW YORK CITY HOUSING AUTHORITY
COMMUNITY OPERATIONS, JEANETTE MITCHELL, DIRECTOR,
ANDRE CIRILO, DEPUTY DIRECTOR, NEW YORK CITY
HOUSING AUTHORITY-LAW DEPARTMENT, HOWARD
BROOKMAN, ATTORNEY, JOSEPHINE RUSSO, SUPERVISING
ATTORNEY, JOAN PANNELL, HEARING OFFICER, NEW YORK
STATE-DIVISION ON HUMAN RIGHTS, WILLIAM LAMOT,
DIRECTOR, JONATHAN STEAD, SPECIALIST, HOUSING AND
URBAN DEVELOPMENT-REGIONAL OFFICE, JAY GOLDEN,
REGION II DIRECTOR, CHRISTOPHER INGRAM, DOUGLAS
FEELEY, INVESTIGATOR, ROBERT NORRINGTON, SUPERVISOR,
HUD-US DEPARTMENT OF HOUSING AND URBAN
DEVELOPMENT, SUSAN CRAWFORD, DIRECTOR OF
COMPLIANCE OF JUSTICE FOR THE DISABILITY-FAIR HOUSING
AND EQUAL OPPORTUNITY,

                  Defendants.
____________________________________

For Plaintiff-Appellant:                           RACHEL WAINER APTER, American Civil
                                                   Liberties Union Foundation, New York, NY.

For Defendant-Appellee:                            David Farber, Judith Agatha Joseph, Donna M.
                                                   Murphy, New York City Housing Authority,
                                                   New York, NY.

       Appeal from a judgment of the United States District Court for the Eastern District of New

York (Cogan, J.).

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

DECREED that the judgment of the district court is AFFIRMED in part, VACATED in part,

and the case is REMANDED for further proceedings consistent with this order.
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       Appellant Rosalinda Tull appeals from the district court’s September 29, 2016 order

granting a motion to dismiss filed by defendant New York City Housing Authority (“NYCHA”).

Tull filed a pro se complaint against NYCHA alleging, inter alia, failure to accommodate her

disability in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq.,

the Fair Housing Act (“FHA”), 42 U.S.C. §§ 3601 et seq., and Section 504 of the Rehabilitation

Act, 29 U.S.C. § 794. After Tull appeared pro se in the district court, we appointed pro bono

counsel for Tull to prosecute the appeal. We affirm the district court’s decision insofar as it is in

accordance with our February 6, 2017 dismissal of Tull’s claims against all parties except for her

reasonable accommodations claim against NYCHA. We thus focus our discussion here on Tull’s

reasonable accommodations claim, and we assume the parties’ familiarity with the underlying facts

and the procedural history of the case.

       We review de novo the district court’s dismissal of Tull’s pro se complaint pursuant to Rule

12(b)(6), “accepting all factual claims in the complaint as true, and drawing all reasonable

inferences in the plaintiff's favor.” Famous Horse Inc. v. 5th Ave. Photo Inc., 624 F.3d 106, 108

(2d Cir. 2010). Tull’s complaint may survive a Rule 12(b)(6) motion to dismiss if it pleads

“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). Pro se complaints, “however inartfully pleaded, must be held to less

stringent standards.” Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008)

(quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)). Thus, such complaints should

be read with “special solicitude” and interpreted “to raise the strongest [claims] that they suggest.”

Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006) (internal quotation marks

omitted). Pleadings should be liberally construed “particularly [] when the pro se plaintiff alleges

that her civil rights have been violated.” Sealed Plaintiff, 537 F.3d at 191. Tull’s failure to


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accommodate claims pursuant to the ADA, the FHA, and the Rehabilitation Act can be considered

together. See Reg’l Econ. Cmty. Action Program, Inc. v. City of Middletown, 294 F.3d 35, 46, 53

(2d Cir. 2002) (applying same definition of “individual with a disability” and same prima facie

standard for reasonable accommodation claims to all three statutes), superseded by statute on other

grounds.

         The district court erred in dismissing Tull’s failure to accommodate claim. Tull must

plausibly allege a prima facie case for her failure to accommodate claim by showing that “(1) [s]he

is a qualified individual with a disability; (2) the defendant is subject to one of the Acts; and (3)

[s]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 [her]

disability.” McElwee v. Cty. of Orange, 700 F.3d 635, 640 (2d Cir. 2012). NYCHA does not

contest that Tull has satisfied the first two elements. Thus, we may assume, without deciding,

that Tull’s medical conditions qualify as a disability under the applicable statutes, and that

NYCHA is subject to the relevant statutory requirements. NYCHA disputes only the last element

of Tull’s prima facie case, contending that “Tull . . . cannot plausibly allege she was denied the

benefit of her apartment based upon her disabilities.” Def.-Appellee Br. 16. We disagree. Tull

plausibly alleged, first, that living in her current apartment seriously exacerbates her medical

conditions.1 She further alleged that NYCHA failed to accommodate her medical disability by

denying her multiple requests to be transferred to a different apartment, either permanently, or on

a temporary basis while necessary repairs were made to her current apartment. Tull repeatedly

informed NYCHA that she cannot be present during “asbestos abatement[,] . . . the breaking down



1
  There is a problem with the heat in Tull’s apartment, which would allegedly reach above ninety degrees in the winter,
even with the windows open. Tull’s medical conditions are affected by the intense heat, which NYCHA concedes
can only be fixed by tearing down the wall between her bedroom and living room and insulating the heating pipes.
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of walls and the removal of mold,” J.A. 264 (as referenced in J.A. 36 ¶ 46), and that she must be

“medically accommodated to make such repairs,” otherwise the repairs “will make [her] more ill,”

J.A. 306 (as referenced in J.A. 38 ¶ 53d). Tull also attached letters from her doctors which

confirm that “[i]t is very crucial for this high risk stroke patient to be transferred to new housing

location with proper accommodations for her medical conditions.” J.A. 250 (as referenced in J.A.

36 ¶ 43f); see also J.A. 217 (as referenced in J.A. 33 ¶ 39d); DiFolco v. MSNBC Cable L.L.C., 622

F.3d 104, 111 (2d Cir. 2010) (“In considering a motion to dismiss for failure to state a claim

pursuant to Rule 12(b)(6), a district court may consider the facts alleged in the complaint,

documents attached to the complaint as exhibits, and documents incorporated by reference in the

complaint.”).

       In fact, NYCHA appears to have recognized at one point that Tull’s medical disability

requires that she be transferred before repairs can be made to her apartment. NYCHA highlights

one instance in December 2013, when NYCHA offered to transfer Tull to a temporary studio

apartment. NYCHA contends that Tull was the one who refused this December 2013 offer to

accommodate her disability. But NYCHA’s one-time offer is insufficient to show that Tull’s

allegations are implausible: NYCHA neglects to mention that, according to Tull’s allegations,

Tull was recovering from a stroke in December 2013 and was unable to pack and move at that

particular time. Also, Tull attached documents to her complaint which indicate that her medical

conditions continued to qualify her for a transfer, and that she continued making medical

accommodation requests for a transfer well after December 2013, which were either refused or

ignored. See, e.g., J.A, 217 (doctor’s note dated April 24, 2014); J.A. 250 (doctor’s note dated

September 4, 2015); J.A. 263–64 (transfer request dated October 2015); J.A. 306–07 (transfer

request dated February 2016).


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       Moreover, NYCHA’s argument that Tull’s requested accommodation is unreasonable has

no merit. Notably, NYCHA’s own Standard Procedure Manual explicitly recognizes a “Transfer

as a Reasonable Accommodation.” J.A. 428. And in any case, the reasonableness of Tull’s

request cannot be determined on her pleadings alone. See Austin v. Town of Farmington, 826

F.3d 622, 630 (2d Cir. 2016) (“Reasonableness analysis is ‘highly fact-specific’ . . . [and] cannot

be determined on the pleadings because the relevant factors are numerous and balancing them

requires a full evidentiary record.” (citations omitted)). We conclude that Tull adequately pleaded

a failure to accommodate claim and that the district court erred in concluding that this claim did

not survive NYCHA’s motion to dismiss.

                                         *      *       *

       We have considered NYCHA’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the district court’s decision insofar as it is in accordance with the

motions panel’s decision on February 6, 2017, we VACATE the judgment below to the extent that

it dismissed Tull’s failure to accommodate claim against NYCHA, and we REMAND to the

district court for further proceedings consistent with this order.     In light of Tull’s medical

conditions, we also recommend that the district court consider appointing counsel for Tull to help

her prosecute this action. Willey v. Kirkpatrick, 801 F.3d 51, 71 (2d Cir. 2015); see also Hodge

v. Police Officers, 802 F.2d 58, 61–62 (2d Cir. 1986) (listing factors to be considered by district

courts in deciding whether to exercise their discretion to appoint counsel pursuant to 28 U.S.C.

§ 1915).

                                             FOR THE COURT:
                                             Catherine O’Hagan Wolfe, Clerk




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