Azkour v. Bowery Residents' Committee, Inc.

15-887
Azkour v. Bowery Residents’ Committee, Inc.
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 18th day of April, two thousand sixteen.
PRESENT:
ROBERT A. KATZMANN
Chief Judge,
JOSÉ A. CABRANES,
Circuit Judge,
LEWIS A. KAPLAN,
District Judge.*
Hicham Azkour,
Plaintiff-Appellant,
v. 15-887
Bowery Residents’ Committee, Inc., Lawrence
Rosenblatt, aka Muzzy Rosenblatt, Janet Forte,
Kevin Martin, Tereen Llewelyn-Miller, Angela
Kedzior, John Does, 1-5, Jane Does, 1-5,
Defendants-Appellees.**
For Plaintiff-Appellant: Hicham Azkour, pro se, New York, NY.
* The Honorable Lewis A. Kaplan, of the United States District Court for the Southern District of
New York, sitting by designation.
** The Clerk of the Court is respectfully directed to amend the caption to conform to the above.
For Defendants-Appellees: Paul Kovner, Esq., Rubin Fiorella &
Friedman LLP, New York, NY.
Appeal from a judgment of the United States District Court for the Southern District of
New York (Griesa, 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
REMANDED for further proceedings consistent with this order.
Appellant Hicham Azkour, proceeding pro se, appeals the district court’s judgment
dismissing his civil rights complaint. We assume the parties’ familiarity with the underlying
facts, the procedural history of the case, and the issues on appeal.
We review de novo a district court’s dismissal of a complaint pursuant to Federal Rule of
Civil Procedure 12(c), “employ[ing] the same standard applicable to dismissals pursuant to Fed. R.
Civ. P. 12(b)(6).” Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010) (internal quotation
marks omitted). We thus construe the complaint liberally, accepting its factual allegations as true
and drawing all reasonable inferences in the plaintiff’s favor. See, e.g., Chambers v. Time
Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002).
In this Circuit, pro se complaints should not be dismissed by the district court “without
granting leave to amend at least once when a liberal reading of the complaint gives any indication
that a valid claim might be stated.” Shomo v. City of New York, 579 F.3d 176, 183 (2d Cir. 2009)
(quoting Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999)). However, a district
court need not grant leave to amend when doing so would be “futile.” See, e.g., Cuoco v.
Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). We review a district court’s denial of leave to amend
for abuse of discretion, unless “the denial of leave to amend is based on a legal interpretation, such
as a determination that amendment would be futile,” in which case we review the denial de novo.
Smith v. Hogan, 794 F.3d 249, 253 (2d Cir. 2015) (citation omitted).
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I. Claims Under 42 U.S.C. §§ 1983, 1985, 1986, and 2000d
Azkour has abandoned his claims under §§ 1985, 1986, and 2000d by failing to address
them in his brief. See LoSacco v. City of Middletown, 71 F.3d 88, 92–93 (2d Cir. 1995). And the
district court properly dismissed and denied leave to amend Azkour’s claims under § 1983 because
Azkour failed to adequately plead state action. See Sybalski v. Indep. Grp. Home Living
Program, Inc., 546 F.3d 255, 257–58 (2d Cir. 2008) (explaining the three tests for determining
whether the actions of a private entity are attributable to the state). Azkour argues on appeal that
the Bowery Residents’ Committee is a state actor under the Supreme Court’s test in Lebron v.
National Railroad Passenger Corp., 513 U.S. 374 (1995). This argument fails because, inter
alia, New York did not “create[] [the Bowery Residents’ Committee] by special law.” Id. at 400.
Nor is there “any indication” that Azkour could remedy this deficiency by repleading. Shomo,
579 F.3d at 183. Accordingly, we affirm the district court’s judgment as to these claims.
II. Claims Under 42 U.S. C. § 1981 and the Fair Housing Act (“FHA”)
Although the district court characterized the problems with Azkour’s case as “substantive,”
it dismissed his § 1981 and FHA claims because of pleading failures. Azkour v. Bowery
Residents’ Comm., Inc., No. 13 Civ. 5878 (TPG), 2015 WL 1344770, at *8 (S.D.N.Y. Mar. 23,
2015). The district court also failed to apply the appropriate pleading standard in accordance with
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and its progeny, to those claims. See
Ruiz v. Cnty. of Rockland, 609 F.3d 486, 491 (2d Cir. 2010) (applying McDonnell Douglas to
§ 1981 claims); Boykin v. KeyCorp, 521 F.3d 202, 213 (2d Cir. 2008) (applying McDonnell
Douglas to FHA claims). As we have recently held, “a plaintiff is not required to plead a prima
facie case under McDonnell Douglas, at least as the test was originally formulated, to defeat a
motion to dismiss.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 84 (2d Cir. 2015);
see also Littlejohn v. City of New York, 795 F.3d 297, 311 (2d Cir. 2015). Azkour was only
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required to “give plausible support to a minimal inference of discriminatory motivation.”1 Vega,
801 F.3d at 84 (internal quotation marks omitted). Although many of the factual allegations in
Azkour’s complaint were conclusory and may not have even been attributable to the defendants,
given the relaxed pleading requirements under McDonnell Douglas, it is not clear that granting
leave to amend his complaint would have been futile. Accordingly, we vacate and remand with
instructions to allow Azkour to amend his complaint as to these claims. See Khulumani v.
Barclay Nat’l Bank Ltd., 504 F.3d 254, 260–61 (2d Cir. 2007) (declining to address whether
plaintiffs’ complaint was sufficiently pleaded where district court had erroneously denied leave to
amend as futile because the Court “[could not] be sure that the pleadings in the record before [it]
represent[ed] the final version of the plaintiffs’ allegations”).
We have considered Azkour’s remaining arguments and find them to be without merit.
Accordingly, we AFFIRM in part, VACATE in part, and REMAND for further proceedings
consistent with this order.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
1 Although Littlejohn and Vega discussed pleading standards in the context of employment
discrimination cases, they both relied on the Supreme Court’s decision in Swierkiewicz v. Sorema
N.A., 534 U.S. 506 (2002). We have held that “[t]he Swierkiewicz holding applies with equal
force to any claim . . . that the McDonnell Douglas framework covers.” Williams v. N.Y. City
Hous. Auth., 458 F.3d 67, 72 (2d Cir. 2006).
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