Faccio v. U.S. Department of Housing and Urban Development , 442 F. App'x 599 ( 2011 )

11-378-cv
Faccio v. U.S. Department of Housing and Urban Development
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 “SUMMARY 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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 28th day of September, two thousand eleven.
PRESENT:
PIERRE N. LEVAL,
PETER W. HALL,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_____________________________________
Daniel Faccio, Faccio Family,
Plaintiffs-Appellants,
v. 11-378-cv
U.S. Department of Housing and Urban
Development, Buffalo Office, Miss Mary,
Defendants-Appellees.
_____________________________________
Daniel Faccio, pro se, Kingston, NY, for Plaintiff-
Appellant Daniel Faccio.
Paula Ryan Conan, Assistant United States
Attorney; Richard S. Hartunian, United States
Attorney for the Northern District of New York;
Syracuse, NY, for Defendant-Appellee U.S.
Department of Housing and Urban Development.
Appeal from a judgment of the United States District Court for the Northern District of
New York (Kahn, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Plaintiff-Appellant Daniel Faccio, pro se, appeals the district court’s judgment granting
Defendant-Appellee U.S. Department of Housing and Urban Development’s (“HUD’s”) motion
to dismiss his complaint for lack of subject-matter jurisdiction and for failure to state a claim
upon which relief may be granted. We assume the parties’ familiarity with the underlying facts,
procedural history of the case, and issues on appeal.
This Court reviews de novo the district court’s dismissal of a complaint under Federal
Rule of Civil Procedure 12(b)(6), “construing the complaint liberally, accepting all factual
allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff’s
favor.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). Although all
allegations contained in the complaint are assumed to be true, this tenet is “inapplicable to legal
conclusions.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). 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.” Id.Faccio failed to oppose the dismissal motion below. He now argues for the first time on
appeal that HUD was not entitled to sovereign immunity and that his complaint stated a claim
under the Fair Housing Act. The well-established general rule is that a court of appeals will not
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consider an issue raised for the first time on appeal. See Singleton v. Wulff, 428 U.S. 106,
120-21 (1976). Although we may, in our discretion, disregard the general rule when necessary
to remedy manifest or obvious injustice, see Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d
522, 527 (2d Cir. 1990), Faccio has not demonstrated that review of these issues is necessary to
remedy manifest injustice and, in any event, his arguments are meritless.
The district court properly determined that Faccio’s complaint failed to state a claim.
Contrary to Faccio’s argument on appeal, his complaint did not suggest that he had a plausible
claim against HUD under the Fair Housing Act. No right of action lies against HUD for its
failure to investigate a charge of discrimination under the Fair Housing Act. See Marinoff v.
U.S. Dep’t of Hous. & Urban Dev., 78 F.3d 64, 65 (2d Cir. 1996) (per curiam). Nor did Faccio’s
allegations suggest that he had any plausible claim against “Miss Mary,” the individual HUD
employee whom he alleged had failed to investigate his complaint of discrimination. To the
extent that Faccio’s invocation of 42 U.S.C. § 1983 could be construed as an attempt to assert a
Bivens claim against “Miss Mary,” his allegation that she failed to investigate his discrimination
complaint did not suggest a violation of any of his constitutional rights cognizable as a Bivens
claim.
Although Faccio purported to assert claims on behalf of unidentified members of his
family, he is without power to do so because, as a non-attorney pro se litigant, he may not
represent anyone but himself, see Berrios v. New York City Housing Authority, 564 F.3d 130,
132-33 (2d Cir. 2009), and there is no indication in the record, other than by Faccio’s assertion,
that his family members in any way authorized the bringing of suit in their names. Thus, the
dismissal here will not have any res judicata effect on Faccio’s individual family members
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because they were never made parties to the action. See EDP Med. Computer Sys., Inc. v. United
States, 480 F.3d 621, 624 (2d Cir. 2007).
We have considered all of Faccio’s arguments and find them to be without merit.
Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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