ADRIAN JOHNSON v. CONNECTICUT COALITION AGAINST DOMESTIC VIOLENCE ET AL (2024)

RULING RECOMMENDING THAT THE PLAINTIFF'S SECOND AMENDED COMPLAINT BE PERMITTED TO PROCEED AS TO CERTAIN CLAIMS AND BE DISMISSED AS TO OTHER CLAIMS

On January 31, 2024, pro se plaintiff Adrian Johnson filed a Second Amended Complaint (“SAC”) against defendants Connecticut Coalition Against Domestic Violence (“the Coalition”), Interval House, Network to End Domestic Violence (“the NEDV”), Homewood Suites Manchester (“Homewood”), Brendan McDermott, Megan Scanlon, Tanya Davis, and Jose Miranda.”¹ (Doc. No. 34). The SAC alleges that the defendants discriminated against the plaintiff—a “black transgender woman” and domestic violence victim—by refusing to provide the plaintiff with housing and other critical services, on the basis of, inter alia, her sex, gender identity, and gender dysphoria. (See generally id.).

On February 8, 2024, the Court (Nagala, J.) referred to the undersigned an initial review of the SAC pursuant to 28 U.S.C. § 1915. (Doc. No. 37).

For the reasons set forth below, the Court respectfully recommends that the SAC be permitted to proceed as to certain viable federal and state law claims, and otherwise DISMISSED as to its remaining, insufficient claims.

I. LEGAL STANDARD

Section 1915 provides, in relevant part, that the Court “shall dismiss the case at any time if the court determines that ․ the action ․ (i) is frivolous or malicious; (ii) fails to state a claim upon which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.”² 28 U.S.C. § 1915(e)(2)(B). A claim is “frivolous” if it lacks an arguable basis either in law or fact, or when a dispositive defense, such as lack of subject matter jurisdiction, clearly exists on the face of the complaint. See Neitzke v. Williams, 490 U.S. 319, 325 (1989); see also Patterson v. Rodgers, 708 F. Supp. 2d 225, 232 (D. Conn. 2010) (“In analyzing whether Plaintiff's claims are ‘frivolous,’ ‘fail to state a claim upon which relief may be granted,’ or barred by immunity, the Court necessarily determines whether it has subject matter jurisdiction over the action.”). Indeed, “[w]here there is a lack of subject matter jurisdiction, dismissal is mandatory.” See Manway Constr. Co. v. Housing Authority of Hartford, 711 F.2d 501, 503 (2d Cir. 1983).

A valid complaint “raise[s] a right to relief above the speculative level” by stating “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); see generally Fed. R. Civ. P. 8(a)(2). A claim is “facially plausible” where the factual content of the claim “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). This does not mean that a valid complaint requires “detailed factual allegations.” Twombly, 550 U.S. at 570. Still, the plaintiff must “disclose sufficient information to permit the defendant ‘to have a fair understanding of what the plaintiff is complaining about and to know whether there is a legal basis for recovery.’ ” Kittay v. Kornstein, 230 F.3d 531, 541 (2d Cir. 2000) (quoting Ricciuti v. New York City Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991)). This is known as “fair notice,” and is defined as notice “which will enable the adverse party to answer and prepare for trial, allow the application of res judicata, and identify the nature of the case so that it may be assigned the proper form of trial.” Wynder v. McMahon, 360 F.3d 73, 79 (2d Cir. 2004) (quoting Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995) (additional citations and internal quotations omitted)).

Courts are required to read pro se complaints “liberally,” such that they are “interpreted to raise the strongest arguments that they suggest.” Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013) (quoting Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks omitted)); see also Thaxton v. Simmons, No. 10-CV-1318 (MAD) (RFT), 2012 WL 360104, at *7 (N.D.N.Y. Jan. 5, 2012) (“It is the Court's view that Plaintiff has barely nudged across the line from conceivable to plausible. Nevertheless, because we are bound to give the Plaintiff the benefit of every reasonable inference to be drawn from the allegations in the Complaint, we recommend allowing this claim to proceed.”) (citations omitted), report and recommendation adopted, No. 10-CV-1318 (MAD) (RFT), 2012 WL 360141 (N.D.N.Y. Feb. 2, 2012).

II. PROCEDURAL BACKGROUND

On August 25, 2023, the plaintiff commenced this action as a self-represented (i.e., pro se) party. (See Doc. No. 1). On August 30, 2023, the Court (Nagala, J.) referred to the undersigned an initial review of the Complaint pursuant to 28 U.S.C. § 1915. (Doc. No. 19). Thereafter, the plaintiff filed two separate versions of her Amended Complaint. (Doc. Nos. 20, 21). Nevertheless, on January 9, 2024, the plaintiff filed a Notice advising the Court that she intended to pursue her initial, first-filed Complaint (Doc. No. 1), as opposed to either of her Amended Complaints. (Doc. No. 26). On January 23, 2024, after conducting its initial review, the Court recommended that the plaintiff's initial Complaint be dismissed, but that the plaintiff be permitted to file another Amended Complaint that, consistent with the Court's Recommended Ruling, asserted at least one viable claim over which the Court had subject matter jurisdiction. (See Doc. No. 29).

On January 24, 2024, the plaintiff filed a Notice requesting that the Court “conduct an initial review of her 1st amended complaint [Doc. No. 21], in light of the magistrate's dismissal of her first complaint against defendants.” (Doc. No. 31). Thereafter, the Court (Nagala, J.) ordered the plaintiff to file a Notice by February 1, 2024, confirming that she wished for the Court to proceed with an initial review of the Amended Complaint (Doc. No. 21), in lieu of filing either an objection to the Recommended Ruling or, alternatively, a further amended complaint. (Doc. No. 33). On January 31, 2024, the plaintiff filed the Second Amended Complaint (“SAC”). (Doc. No. 34). On February 1, 2024, having interpreted the plaintiff's filing of the SAC as an indication that she wanted the Court to conduct an initial review of the SAC, the Court instructed the plaintiff to file a Notice confirming that its interpretation was correct. (Doc. No. 35).

On February 6, 2024, the plaintiff filed a Notice informing that she wished “to proceed with [the SAC] for initial review, ․ and let her allegations proceed.” (Doc. No. 36). Consequently, the Court (Nagala, J.) referred an initial review of the SAC to the undersigned. (Doc. No. 37).

III. FACTUAL BACKGROUND 3

The plaintiff, a transgender domestic violence victim suffering from gender dysphoria, purports to bring this action under, inter alia, the Fair Housing Act (“FHA”), the Fourteenth Amendment, the Americans with Disabilities Act (“ADA”), and Section 504 of the Rehabilitation Act of 1973 (“Section 504”), arising out of an alleged denial of critical services, including emergency housing away from her abuser, on the basis of both her transgender identity and her disability. (Doc. No. 34). The plaintiff also alleges that the defendants violated Conn. Gen. Stat. § 46a-58, and otherwise discriminated against her on the basis of her transgender identity and disability, and further asserts common law actions for intentional infliction of emotional distress (“IIED”), defamation, “disclosure of confidential information,” sexual harassment, assault and battery, false and deceptive advertising, and illegal lockout/unlawful entry and detainer. (Id.).

Turning to the SAC, the plaintiff first sets forth allegations against Interval House. The plaintiff alleges that, in April 2023, after seeking assistance from “Safe Connect” as a survivor of domestic abuse, she was initially referred to Interval House. (See id. at ¶ 9). There, unidentified staff at Interval House conducted a “lethality assessment” to determine whether the plaintiff was under a high risk of violence. (Id. at ¶¶ 10–11). Following the plaintiff's “lethality assessment,” Interval House determined that a high risk of violence to the plaintiff was likely, and informed the plaintiff that “she would be placed in a shelter, or if no shelter space was available she'd be placed in a hotel until such space became available.” (Id. at ¶ 12). Thereafter, unidentified staff at Interval House followed up with the plaintiff and subjected her to an “invasive line of questioning” whereby the plaintiff “inadvertently disclosed her status as transgender,” and otherwise advised that she “had gender dysphoria and was in transition to become female.” (Id. at ¶¶ 13–15). Consequently, the plaintiff was accused of lying about her gender (which she had reported as female), told that she would be “treated as a man,” and informed that she would no longer be provided services by Interval House, “because [the plaintiff] ‘was a man and would scare the women who are currently fleeing domestic violence, mostly from men.’ ” (Id. at ¶¶ 16–17). The plaintiff then inquired about a “hotel placement” “and was told she would receive a call back but never did.” (Id. at ¶ 18).

Next, the SAC sets forth the plaintiff's allegations as to the Coalition. (See id. at ¶¶ 20–45). The plaintiff alleges that, after again becoming “a victim of intimate partner violence,” the plaintiff's therapist, “Ms. Eva,” instructed her to contact “Safe Connect,” where she would get the “help and assistance she needed.” (Id. at ¶¶ 20–23). Thereafter, the plaintiff was informed by the Coalition (“who run Safe Connect”) that she would be placed “in a hotel until shelter space opened.” (Id. at ¶ 24). Approximately one week into her hotel stay, the plaintiff met with her Coalition “advocate,” who “let it be known that right away she knew [the plaintiff] was transgender,” later stated to the plaintiff that “ ‘she was still a man,’ ” and falsely presumed that the plaintiff had HIV after “misconstru[ing]” the plaintiff's private and confidential information. (Id. at ¶ 25). The plaintiff was told by her Coalition advocate that she would never be placed in a shelter “because the shelters don't accept men,” and that she would soon be “kicked out” of the Coalition program. (Id. at ¶¶ 28, 30).

Evidently, during “intense and pervasive questioning,” the plaintiff disclosed to the Coalition that she had been diagnosed with gender dysphoria, was taking estrogen and progesterone, and had been referred for “gender reassignment surgery, breast augmentation, and facial feminization surgery.” (Id. at ¶ 31).

The plaintiff further alleges that, “on many occasions,” she was treated poorly by Coalition staff, including being misgendered, told she was not “welcome to their services,” denied food orders, laughed at, ignored, and even “sexually propositioned by a male staff at [the Coalition].” (Id. at ¶¶ 33–34). The plaintiff tried—and failed—to report the sexual propositioning to Coalition staff, and was “later informed by [Coalition] advocates that [Coalition] Vice President Tanya Davis had told them to decline any services to the plaintiff,” including food orders and transportation services to her medical appointments. (Id. at ¶¶ 35, 38). Evidently, the aforementioned restrictions were characterized as a “miscommunication” and were lifted. (Id. at ¶ 38). Nevertheless, the plaintiff was eventually “removed from the program” entirely. (Id. at ¶ 36).

In August 2023, the plaintiff contacted Coalition CEO and President Megan Scanlon to report the “abuse” she suffered at the hands of a male Coalition advocate named Jose (presumed to be defendant Jose Miranda).⁴ (Id. at ¶ 37). In response, Scanlon ignored the plaintiff's sexual harassment allegations (which were never addressed), and instead reported to the plaintiff that a shelter bed had opened at the NEDV in Enfield, CT. (Id. at ¶ 40). The plaintiff was given a few days to “do her intake and move to the shelter,” and told—without explanation—that her Coalition services were being terminated, even if she was not accepted at the NEDV. (Id.). The plaintiff alleges that the Coalition unlawfully disclosed her confidential personal information, including her transgender status and gender dysphoria diagnosis, to various other entities, including the Manchester Police Department, Homewood, her landlord, “and other umbrella organizations.” (Id. at ¶¶ 41–43).

Upon initial contact with the NEDV, the plaintiff was informed that there was a shelter bed available for her. (Id. at ¶ 48). During her intake at the NEDV, “it was disclosed that [the plaintiff] was transgender, had gender dysphoria, and was taking HIV prevention medication and hormones.” (Id. at ¶ 49). Consequently, the plaintiff was initially told to await further instructions, and later informed that “a bed was no longer available.” (Id. at ¶ 51). Once again, after having disclosed her gender dysphoria to the NEDV, the plaintiff was denied shelter. (Id. at ¶ 53). Out of options, the plaintiff was “forced to return to her abuser where she was subjected to further abuse.” (Id. at ¶ 52).

The SAC also sets forth claims against Homewood, which appears to be where the plaintiff resided while receiving services from the Coalition. (Id. at ¶¶ 46–62). The SAC alleges that, after the plaintiff complained to Homewood manager Brendan McDermott about a threatening verbal altercation between her and another Homewood staff member, McDermott called the Coalition—without first speaking to the plaintiff—and falsely “told them [the plaintiff] needed to leave the hotel.” (Id. at ¶ 56). Thereafter, the plaintiff showed McDermott a video of the incident with Homewood staff, “which totally absolved [the plaintiff] of any wrongdoing.” (Id. at ¶ 57). Nevertheless, because McDermott “had already cancelled [the plaintiff's] 2 week reservation and made a false report to [the Coalition], he countered [the plaintiff] with an offer of 1 week reservation instead of two ‘just to make sure there wasn't a problem.’ ” (Id.). Evidently, at the plaintiff's request, McDermott belatedly contacted the Coalition “to clear [the plaintiff's] name of any wrongdoing.” (Id. at ¶ 61). The plaintiff alleges that Homewood was aware that she was transgender, and that the cancellation of her two week reservation “clearly shows she was discriminated against in a public accommodation.” (Id. at ¶¶ 58–59). Moreover, the plaintiff alleges that the foregoing demonstrates Homewood's failure to “train staff to deal with gender diverse individuals.” (Id. at ¶ 60). Additionally, the SAC alleges that Homewood disclosed the plaintiff's confidential personal information, including the aforementioned “falsified misconduct,” to the Coalition without the plaintiff's consent. (Id. at ¶ 55).

IV. DISCUSSION

In accordance with the foregoing factual allegations, the SAC asserts the following claims: (1) an FHA claim against the Coalition, Interval House, and the NEDV; (2) a Fourteenth Amendment claim against the Coalition, Interval House, and the NEDV; (3) an ADA claim against all of the defendants ⁵ ; (4) a Section 504 claim against the Coalition, Interval House, and the NEDV; (5) a claim pursuant to Conn. Gen. Stat. § 46a-58 (“Section 46a-58”) against all of the defendants; (6) an IIED claim against all of the defendants; (7) a claim pursuant to 42 U.S.C. § 1981 (“Section 1981”) against the Coalition, Interval House, and the NEDV; (8) a conspiracy claim pursuant to 42 U.S.C. § 1985(3) (“Section 1985(3)”) and § 1986 (“Section 1986”) against all of the defendants; (9) a “defamation, libel, [and] disclosure of confidential information” claim against all of the defendants; (10) a “threats, sexual harassment, assault and battery” claim against the Coalition and Homewood; and (11) a false advertising and “criminal/illegal lockout forcible entry and detainer” claim against Homewood.

For the reasons set forth below, the Court respectfully recommends that the plaintiff's Fourteenth Amendment, ADA (Title II), IIED, Section 1981, Section 1985(3), Section 1986, “disclosure of confidential information,” “threats, sexual harassment, and assault and battery,” and false advertising claims be DISMISSED with prejudice. The Court additionally recommends that the plaintiff's defamation claim against Brendan McDermott be DISMISSED without prejudice.

Notwithstanding the foregoing, the Court further respectfully recommends that the SAC be permitted to proceed as to: (1) the FHA, Section 504, and Section 46a-58 and 46a-64c claims against the Coalition, Interval House, and the NEDV; (2) the Title III ADA claim against Homewood; and (3) the Section 47a-43 illegal lockout claim against Homewood.

A. FHA Claims

The SAC alleges that the Coalition, Interval House, and the NEDV denied the plaintiff shelter away from her domestic abuser on the basis of her race and gender, as well as her disability (described as “gender dysphoria and assumed HIV status”). (See Doc. No. 34 at ¶¶ 63–70). As such, the plaintiff first claims, inter alia, “Fair Housing Act Violations.” (Id.). However, the SAC does not specify which of the FHA's numerous, varied subsections have been violated by the defendants. (See id.); 42 U.S.C. § 3601, et seq. Nevertheless, assessing the plaintiff's allegations liberally and interpreting them to raise the strongest arguments they suggest, see Hunter v. McMahon, 75 F.4th 62, 67 (2d Cir. 2023), the Court construes the SAC as alleging violations of both 42 U.S.C. § 3604(b) (“Section 3604(b)”) and § 3604(f)(1) (“Section 3604(f)(1)”).

Section 3604(b) of the FHA makes it unlawful: “[t]o discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin.” 42 U.S.C. § 3604(b).

Separately, Section 3604(f)(1) makes it unlawful to:

discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of: (A) that buyer or renter, (B) a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available; or (C) any person associated with that buyer or renter.

Id. at § 3604(f)(1).

The “otherwise make unavailable” language in 42 U.S.C. § 3604(f) is a “catchall phrase[ ]” that “look[s] to consequences, not intent.” Texas Dep't of Hous. & Cmty. Affairs v. Inclusive Communities Project, Inc., 576 U.S. 519, 535 (2015). Indeed, the phrase reaches “a wide variety of discriminatory housing practices.” Mhany Mgmt., Inc. v. Cty. of Nassau, 819 F.3d 581, 600 (2d Cir. 2016). More precisely, “[c]ourts have found that a defendant ‘otherwise makes housing unavailable’ under the [FHA] when the defendant engages in a series of actions that imposes burdens on or constitutes harassment of a protected class of residents or intended residents, making it more difficult for the members of the protected class to obtain housing or conveying a sense that the members of the protected class are unwanted.” Gilead Cmty. Servs., Inc. v. Town of Cromwell, 432 F. Supp. 3d 46, 72 (D. Conn. 2019).

While the applicability of Sections 3604(b) and 3604(f) to transgender individuals appears unsettled in this Circuit, various district courts have “concluded that sex discrimination includes discrimination against individuals based on their nonconforming genders.” Barker v. Women in Need, Inc., No. 20-CV-2006 (LLS), 2020 WL 1922633, at *5 (S.D.N.Y. Apr. 20, 2020); see, e.g., Fabian v. Hosp. of Cent. Connecticut, 172 F. Supp. 3d 509, 524 (D. Conn. 2016) (emphasizing that in the Title VII context, “discrimination on the basis of transgender identity is now recognized as discrimination ‘because of sex’ ”). When a plaintiff brings a claim under the FHA that does not rest on direct evidence of landlord discrimination, her claims are analyzed under the McDonnell Douglas burden-shifting framework first developed in Title VII cases. See Francis v. Kings Park Manor, Inc., 992 F.3d 67, 73 (2d Cir. 2021) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). “For a plaintiff's claim to survive a motion to dismiss in a McDonnell Douglas case, he must plausibly allege that he ‘[1] is a member of a protected class, ․ [2] suffered an adverse ․ action, and [3] has at least minimal support for the proposition that the [housing provider] was motivated by discriminatory intent.’ ” Id.

Here, the plaintiff fundamentally alleges that, after disclosing to the Coalition that, inter alia, she was transgender and suffered from gender dysphoria, she was subjected to various forms of mistreatment and ultimately denied housing away from her abuser.⁶ (Doc. No. 34 at ¶¶ 25–44). Likewise, as to Interval House and the NEDV, the plaintiff alleges that, after disclosing her transgender status and her gender dysphoria, she was denied shelter, rescinded services, “treated as a man,” and “forced to return to her abuser where she was subjected to further abuse.” (Id. at ¶¶ 17, 19, 49–52). The plaintiff further alleges that she was placed in a hotel, as opposed to a women's shelter, “only because of her status as transgender.” (Id. at ¶ 70).

As to Section 3604(b), the SAC—albeit narrowly—has plausibly alleged that, in seeking housing assistance from the Coalition, Interval House, and the NEDV, the plaintiff was subjected to discrimination on the basis of her transgender status. The plaintiff alleges that, despite initially being promised the “help and assistance she needed,” she was told that she would never be placed in a shelter and “constantly reminded of the fact that she wasn't welcome to [the Coalition's] services” after informing a Coalition advocate of her transgender status. (Id. at ¶¶ 23, 33). Moreover, the SAC alleges that both Interval House and the NEDV rescinded possible housing opportunities after being informed of the plaintiff's transgender status. (See id. at ¶¶ 14, 19, 49–51). Notably, according to the plaintiff, the shelters partnering with the Coalition (e.g., Interval House and the NEDV) “don't accept men.” (Id. at ¶ 28). In that regard, the SAC suggests that the plaintiff's denial of housing was due to a misunderstanding as to her gender, and may not have been the product of any discriminatory intent on the part of the Coalition, Interval House, or the NEDV. See Francis, 992 F.3d at 73. Nevertheless, the Court finds that, when taken together, the facts alleged by the plaintiff still plausibly give rise to the inference that she was discriminated against on the basis of her gender by each of the Coalition, Interval House, and the NEDV, in connection with her efforts to procure housing away from her abuser.⁷

Regarding Section 3604(f)(1), the SAC alleges that the Coalition removed the plaintiff from the program after learning of her gender dysphoria. (Id. at ¶¶ 32–36). Likewise, the plaintiff alleges that, after disclosing to Interval House that she suffered from gender dysphoria and was taking medication for HIV prevention, her offer for services—including placement in a hotel until shelter space freed up—was rescinded. (Id. at ¶¶ 12–19). As to the NEDV, the SAC similarly alleges that, after advising that a bed at the NEDV was available, the NEDV rescinded the housing opportunity when “it was disclosed that [the plaintiff] ․ had gender dysphoria, and was taking HIV prevention medication ․” (Id. at ¶¶ 47–53). These facts, taken together, plausibly allege that the plaintiff's potential housing options at Interval House and the NEDV (as orchestrated by the Coalition) were “made unavailable” due to her disability, i.e., gender dysphoria and “assumed HIV status.”

In light of the foregoing, the Court respectfully recommends that the plaintiff's FHA claims against the Coalition, Interval House, and the NEDV be permitted to proceed as pleaded in the SAC.

B. Fourteenth Amendment Claims

Next, the plaintiff claims that the Coalition, Interval House, and the NEDV violated her equal protection rights under the Fourteenth Amendment.

The Fourteenth Amendment provides that “[n]o state shall ․ deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. “The Equal Protection Clause of the Fourteenth Amendment ‘is essentially a direction that all persons similarly situated should be treated alike.’ ” White v. City of New York, 206 F. Supp. 3d 920, 930 (S.D.N.Y. 2016) (quoting City of Cleburne v. Cleburn Living Ctr., 473 U.S. 432, 439 (1985)). To state a violation of the Equal Protection Clause, “a plaintiff must demonstrate that [s]he was treated differently than others similarly situated as a result of intentional or purposeful discrimination,” and show that “the disparity in treatment cannot survive the appropriate level of scrutiny.” See Johnson v. Padin, No. 3:20-CV-637 (CSH), 2020 WL 4818363, at *3 (D. Conn. Aug. 16, 2020) (quoting Phillips v. Girdich, 408 F.3d 124, 129 (2d Cir. 2005)). “Proof that discriminatory intent was a motivating factor is required to show a violation of the Equal Protection Clause.” Okin v. Village of Cornwall–on–Hudson Police Dept., 577 F.3d 415, 438 (2d Cir. 2009).

The SAC alleges that the Coalition discriminated against the plaintiff on the basis of her transgender identity by terminating her services, “placing her in a hotel instead of a shelter due to her gender identity,” harass[ing] and laugh[ing] at her,” “ignor[ing] her,” “den[ying] her food,” sexually harass[ing] her,” and “misgender[ing] her.” (See Doc. No. 34 at ¶¶ 73–76). The SAC further alleges that Interval House and the NEDV discriminated against the plaintiff by denying her housing. (Id.). The plaintiff's claim fails for two threshold reasons.⁸

First, the SAC does not sufficiently allege that the defendants’ discriminatory conduct constituted state action. “[R]ights under the Equal Protection Clause itself arise only where there has been involvement of the State or of one acting under the color of its authority.” United States v. DeFilippo, No. 3:21-CR-128 (VAB), 2023 WL 5000385, at *8 (D. Conn. Aug. 4, 2023) (citing United States v. Guest, 383 U.S. 745, 753 (1966)). “To show state action, the Government must establish both that 1) the defendant's ‘alleged constitutional deprivation was caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible,’ and 2) ‘that the party charged with the deprivation is a person who may fairly be said to be a state actor.’ ” DeFilippo, 2023 WL 5000385 at *8.

Here, the SAC emphasizes that the Coalition, Interval House, and the NEDV are recipients of federal funding.⁹ (See Doc. No. 34 at ¶ 65). In that regard, the SAC appears to attempt to demonstrate state action by satisfying what is known as the “public function test.” See Sybalski v. Indep. Grp. Home Living Program, Inc., 546 F.3d 255, 259 (2d Cir. 2008). But “to satisfy the public function test, [p]rivate actors must be delegated functions that were traditionally under the exclusive authority of the state.” Howell v. Yale Univ., No. 3:22-CV-1160 (JCH), 2023 WL 6295648, at *4 (D. Conn. Sept. 26, 2023) (concluding that snow and ice removal is not a function exclusively within the authority of the state, and declining to find that Yale University's refusal to honor an ice and snow removal contract constituted state action). While providing housing services to survivors of domestic abuse is arguably within the government's purview, the Court finds that “it is not a function that has exclusively been within the State's authority.” See Horvath v. Westport Library Ass'n, 362 F.3d 147, 152 (2d Cir. 2004) (holding that Westport Library was not a state actor under the public function analysis). Accordingly, as the SAC has not adequately alleged any state action, the plaintiff's Fourteenth Amendment equal protection claim must be dismissed.

Secondly, even if the SAC had adequately alleged some state action, the plaintiff fails to identify any similarly situated individuals from whom she was intentionally treated differently based on her transgender identity. Indeed, the SAC wholly fails to “distinguish classes and makes no mention of differential treatment from those similarly situated.” Hamer v. Darien Plan. & Zoning Comm'n, No. 3:11-CV-1845 (WWE), 2012 WL 4371943, at *4 (D. Conn. Sept. 24, 2012). It does not, for example, allege that other survivors of domestic abuse received more comprehensive assistance from the Coalition, or were otherwise offered housing services at Internal House and/or the NEDV.

Accordingly, the Court respectfully recommends that the plaintiff's Fourteenth Amendment claim be DISMISSED with prejudice.

C. ADA and Rehabilitation Act (Section 504) Claims

The SAC alleges that the Coalition, Interval House, and the NEDV each violated both Title II of the ADA, as well as Section 504, insofar as they denied the plaintiff shelter and otherwise terminated her services on the basis of her disabilities, i.e., her gender dysphoria and “perceived HIV status.” (See Doc. No. 34 at ¶¶ 87, 113). Additionally, the SAC appears to allege that each of the individual defendants, i.e., Brendan McDermott, Megan Scanlon, Tanya Davis, and/or Jose Miranda, violated the ADA by “target[ing] [the plaintiff] because of her gender dysphoria,” and otherwise using their knowledge of the plaintiff's gender dysphoria to “screen out [the plaintiff] from services.”¹⁰ (Id. at ¶¶ 90, 92, 114). The SAC further alleges that Homewood committed an ADA violation when it refused to fully honor the plaintiff's reservation after being informed of the plaintiff's medical conditions. (Id. at ¶ 88).

As “the standards adopted by Titles II and III of the ADA are, in most cases, the same as those required under the Rehabilitation Act,” the Court will consider the merits of these claims together. See Powell v. Nat'l Bd. of Med. Examiners, 364 F.3d 79, 85 (2d Cir. 2004), opinion corrected, 511 F.3d 238 (2d Cir. 2004). For the reasons that follow, the Court finds that: (1) the SAC fails to state a claim pursuant to Title II of the ADA against any defendant; (2) the SAC adequately states a Section 504 claim against the Coalition, Interval House, and the NEDV; and (3) the SAC states a viable claim pursuant to Title III of the ADA against Homewood.

Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. A “qualified individual with a disability” is defined as “an individual with a disability who, with or without reasonable modifications ․ meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.” Id. at § 12132(2). A “public entity” is defined in the ADA as “a state or local government,” or “department, agency, special purpose district, or other instrumentality of a State or States or local government.” Id. at § 12132(1)(A), (B).

Similarly, Section 504 provides that “[n]o otherwise qualified individual with a disability ․ shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” Davis v. Shah, 821 F.3d 231, 259 (2d Cir. 2016) (citing 29 U.S.C.A. § 794(a)).

“To establish a violation under [the ADA and/or Section 504], [a] plaintiff must demonstrate: 1) that she is a ‘qualified individual’ with a disability; 2) that defendant is subject to [the ADA and/or Section 504]; and 3) that she was ‘denied the opportunity to participate in or benefit from [d]efendant's services, programs or activities, or was otherwise discriminated against by [d]efendant by reason of her disability.’ ” Lopez v. City of Albany, No. 19-CV-1072 (CFH), 2019 WL 7944411, at *3 (N.D.N.Y. Oct. 9, 2019), report and recommendation adopted, No. 19-CV1072 (TJM), 2020 WL 401585 (N.D.N.Y. Jan. 23, 2020).

1. “Qualified Individual”

The Court first finds that the SAC plausibly alleges that the plaintiff is a “qualified individual with a disability.” Here, the plaintiff argues that her gender dysphoria diagnosis qualifies her as an individual with a disability within the meaning of the ADA. (Doc. No. 34 at ¶ 84). The plaintiff further contends, based on a recent “Statement of Interest” set forth by the Department of Justice, that “gender dysphoria is covered by the ADA,” insofar as it “plainly” amounts to a “physical or mental impairment that substantially limits one or more major life activities.” (See id. at ¶¶ 93–94). At this early juncture, and upon review pursuant to Section 1915, the Court finds that the plaintiff has plausibly alleged that, for the purposes of her ADA and Section 504 claims, her gender dysphoria is covered and that she is a “qualified individual with a disability.”

2. Subject to the ADA/Section 504

Next, the Court finds that the SAC sufficiently alleges that the Coalition, Interval House, and the NEDV receive federal funding and, therefore, are subject to Section 504, but that the SAC does not plausibly allege that these same defendants are “public entities” subject to Title II of the ADA.

In attempting to demonstrate that the Coalition, Interval House, and the NEDV are subject to both the ADA and Section 504, the SAC merely alleges that those entities receive federal funding and “are all business that serve the public.” (See Doc. No. 34 at ¶¶ 82–83, 111). Based on those allegations alone, the Court finds that the SAC sufficiently alleges that the Coalition, Interval House, and the NEDV are subject to Section 504, which broadly covers “discrimination under any program or activity receiving Federal financial assistance.”¹¹ See 29 U.S.C.A. § 794(a).

The same cannot be said as to the Title II of the ADA. As neither governments, nor agencies thereof, the Court finds that the Coalition, Interval House, and the NEDV can only qualify as “public entities” subject to the ADA under a theory that they are somehow instrumentalities of the State of Connecticut. See 42 U.S.C. §§ 12132(1)(A), (B). Liberally construed, the SAC fails to adequately set forth such a theory. “The Second Circuit has held that the phrase “ ‘instrumentality of a State’ ‘suggests that to be an instrumentality, an entity must somehow belong to the government or have been created by it,’ and ‘is thus a creature of the municipality or state whose ends it serves.’ ” Lopez v. City of New York, No. 17-CV-3014 (AJP), 2017 WL 4342203, at *14 (S.D.N.Y. Sept. 28, 2017), report and recommendation adopted, No. 17-CV-3014 (VEC), 2018 WL 1371164 (S.D.N.Y. Mar. 15, 2018) (citing Green v. City of New York, 465 F.3d 65, 79 (2d Cir. 2006)).

Here, the plaintiff alleges that the Coalition, Interval House, and the NEDV are “public entities” solely because they are “publicly funded programs funded by government funds.” (See Doc. No. 34 at ¶ 82). However, these allegations are insufficient to plausibly bring those defendants within the purview of Title II of the ADA. Indeed, in Lopez, the court found that “Project Renewal,” a non-profit organization assisting homeless individuals and those with substance abuse and/or mental health issues, was not a “public entity” under Title II of the ADA. 2017 WL 4342203 at *14. And in Green, the Second Circuit held that “[a] private hospital performing services pursuant to a contract with a municipality even if it does so according to the municipality's rules and under its direction, is not a creature of any governmental entity. Instead it is a parallel private entity.” 465 F.3d at 79 (emphasis added). The SAC fails to sufficiently allege that the Coalition, Interval House, and NEDV were created by the government or are otherwise instrumentalities of the state. Consequently, any ADA claim asserted against an individual employee of those entities (i.e., defendants Megan Scanlon, Tanya Davis, and Jose Miranda of the Coalition) is also necessarily foreclosed. Accordingly, the Court concludes that the SAC fails to plausibly allege a claim under Title II of the ADA against any of the defendants.

3. Discrimination

Lastly, the Court further finds that the SAC plausibly alleges that the Coalition, Interval House, and the NEDV denied the plaintiff an opportunity to benefit from their services on the basis of her gender dysphoria. Indeed, in connection with the plaintiff's Section 504 claim, the SAC alleges that the defendants denied her entry into a shelter and otherwise terminated her services after learning of her gender dysphoria. (See Doc. No. 34 at ¶ 13). Additionally, the plaintiff alleges that she was subjected to “ridicule and harassment” by advocates at the Coalition, “who targeted [the plaintiff] because of her gender dysphoria.” (Id. at ¶ 14). Taken as true, these facts sufficiently demonstrate that the plaintiff was discriminated against on the basis of her disability.

Having plausibly alleged that the plaintiff is a “qualified individual,” that the Coalition, Interval House, and the NEDV are subject to Section 504, and that those defendants discriminated against the plaintiff on the basis of her disability, the Court finds that the SAC adequately states a Section 504 claim.

4. Homewood

The SAC alleges that all of the defendants violated Title II of the ADA, and as discussed supra Point IV(C)(3), the Court has determined that the SAC fails to state any such claim. However, insofar as the SAC further specifically alleges that Homewood denied her equal access to a public accommodation, the Court liberally construes the SAC as further alleging an ADA claim against Homewood under Title III. (See Doc. No. 34 at ¶ 88).

Title III of the ADA provides that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” 42 U.S.C. § 12182(a). “To state a claim under Title III of the ADA, [a] [p]laintiff must allege (1) that she is disabled within the meaning of the ADA; (2) that [d]efendant owns, leases, or operates a place of public accommodation; and (3) that [d]efendant discriminated against her by denying her a full and equal opportunity to enjoy the services [d]efendant provides.” Chalas v. Barlean's Organic Oils, LLC, No. 22-CV-4178 (CM), 2022 WL 17156838, at *4 (S.D.N.Y. Nov. 22, 2022) (citing Camarillo v. Carrols Corp., 518 F.3d 153, 156 (2d Cir. 2008)).

Here, as set forth above, the plaintiff has plausibly alleged that she suffers from a disability covered by the ADA, i.e., gender dysphoria. Further, the SAC alleges that Homewood, as a “business that serve[s] the public,” discriminated against the plaintiff by denying her an equal opportunity to stay at the hotel, i.e., “refus[ing] to honor [the plaintiff's full] reservation after she informed the hotel manager of her medical condition.” (See Doc. No. 34 at ¶¶ 83, 88). Therefore, the Court finds that the SAC adequately states a claim against Homewood pursuant to Title III of the ADA.

For the foregoing reasons, the Court respectfully recommends that: (1) the ADA claims pursuant to Title II be DISMISSED with prejudice as to all defendants; (2) the ADA claim pursuant to Title III be permitted to proceed against Homewood; and (3) the Section 504 claim against the Coalition, Interval House, and the NEDV be permitted to proceed as stated in the SAC.

D. Conn. Gen. Stat. §§ 46a-58 and 46a-64c 12

Next, the SAC alleges that the defendants violated Conn. Gen. Stat. § 46a-58, which generally prohibits depriving any person of their federal or state rights, privileges, or immunities on the basis of protected factors such as race, disability, gender identity, and even status as a victim of domestic violence. Moreover, the SAC specifically indicates that this claim pertains to “discrimination in public accommodations and housing,” which is more precisely governed by Section 46a-64c. (See Doc. No. 34 at p. 22). Thus, the Court construes the SAC as alleging a claim pursuant to Section 46a-64c, as applied via Section 46a-58. Section 46a-64c has been consistently recognized as Connecticut's state equivalent of the FHA. See Commission on Human Rights & Opportunities v. Savin Rock Condominium Assn., Inc., 273 Conn. 373, 385 (2005) (Section 46a-64c was adopted with “the intent of creating a state antidiscrimination housing statute [that is] consistent with its federal counterpart”). As such, for the reasons set forth supra Point IV(A), the Court respectfully recommends that the plaintiff's Section 46a-58 and 46a-64c claims against the Coalition, Interval House, and the NEDV be permitted to proceed as pleaded in the SAC.

E. IIED

The plaintiff further sets forth an IIED claim against “all defendants.” (See Doc. No. 34 at ¶¶ 124–28). “To prevail on a claim for [IIED], a plaintiff must show: ‘(1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe.’ ” Graves v. Neighborhood Hous. Servs. of New Britain, Inc., No. 3:18-CV-1746 (AVC), 2020 WL 12894135, at *12 (D. Conn. Sept. 29, 2020) (quoting Appleton v. Bd. of Educ. of Town of Stonington, 254 Conn. 205, 210 (2000)). “In Connecticut, there is a high threshold required to sustain a claim based on intentional infliction of emotional distress.” Spisak v. Trader Joes's E., Inc., No. NNH-CV-22-6120122-S, 2023 WL 6120645, at *12 (Conn. Super. Ct. Sept. 13, 2023). “Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community ․” Id. (citation omitted).

Here, the Court finds that the SAC fails to plausibly allege an IIED claim against any of the defendants. As an initial matter, the Court emphasizes that, under Connecticut law, an employer cannot be vicariously liable for the intentional torts committed by an employee. See Abate v. Cir.-Wise, Inc., 130 F. Supp. 2d 341, 348–49 (D. Conn. 2001). Thus, any IIED claim against the Coalition, Interval House, the NEDV, and/or Homewood must be dismissed. Turning to the individual defendants, the Court finds that the SAC fails to plausibly allege that Megan Scanlon, Tanya Davis, and Brendan McDermott's conduct was “extreme and outrageous” enough to support an IIED claim. See Graves, 2020 WL 12894135 at *12. Likewise, the Court finds that the conduct of Jose Miranda as set forth in the SAC does not rise to the level of extreme and outrageous behavior required for an IIED claim. The SAC alleges that Jose Miranda: (a) told the plaintiff that “if she wanted a gift card she could only get it if [Miranda] was able to see her in person, and alone”; and (b) “disclosed the fact that he was ‘bisexual’ and wasn't against dat[ing] transwomen.” (See Doc. No. 34 at ¶ 34). The plaintiff has characterized the aforementioned conduct as “sexual propositioning.” (Id.). Even accepting that characterization, the Court cannot find that the precise conduct alleged on the part of Jose Miranda is sufficient to form the basis of an IIED claim. See Gillians v. Vivanco-Small, 128 Conn. App. 207, 212 (2011) (“[c]onduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress.”).

Accordingly, the Court respectfully recommends that the plaintiff's IIED claim be DISMISSED with prejudice as to all of the defendants.

F. 42 U.S.C. § 1981

The SAC alleges that the Coalition, Interval House, and the NEDV violated Section 1981. (See Doc. No. 34 at ¶¶ 129–35). “To establish a claim under [Section] 1981, a plaintiff must allege facts supporting the following elements: (1) plaintiff is a member of a racial minority; (2) defendants’ intent to discriminate on the basis of race; and (3) discrimination concerning one of the statute's enumerated activities.” Naughton v. Gutcheon, No. 3:21-CV-402 (KAD), 2022 WL 3646177, at *7 (D. Conn. Aug. 24, 2022) (citing Brown v. City of Oneonta, New York, 221 F.3d 329, 336–37 (2d Cir. 2000)). Section 1981 only prohibits “intentional racial discrimination,” and “[p]laintiffs must meet the same pleading standard for their Section 1981 claims as for their Section 1983 claims under the Equal Protection Clause.” Id.

Here, insofar as the SAC fails to plausibly allege a Fourteenth Amendment claim, see supra Point IV(B), the Court finds that it similarly fails to allege a Section 1981 claim. See Brown, 221 F.3d at 339. Moreover, the Court further emphasizes that, although the SAC includes vague assertions of race-based discrimination (see Doc. No. 34 at ¶ 66), the plaintiff predominately raises allegations of discrimination on the basis of her transgender status, gender identity, and gender dysphoria; indeed, her Section 1981 is explicitly premised on “sex discrimination.” (See id. at ¶¶ 130–33). For these reasons, the Court respectfully recommends that the plaintiff's Section 1981 claim be DISMISSED with prejudice.

G. Conspiracy – Sections 1985(3) and 1986

Next, the SAC alleges that the defendants all conspired to violate the plaintiff's rights, in violation of Section 1985(3) and Section 1986. (Id. at ¶¶ 136–146).

Section 1985(3) provides “a cause of action to those injured by conspiracies formed ‘for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws.’ ” Carpenters v. Scott, 463 U.S. 825, 825 (1983). “To state a civil rights conspiracy under § 1985(3), a plaintiff must allege: 1) a conspiracy; 2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and 3) an act in furtherance of the conspiracy; 4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States.” Britt v. Garcia, 457 F.3d 264, 270 n.4 (2d Cir. 2006) (internal quotations omitted). Importantly, Section 1985 is “a purely remedial statute, providing a civil cause of action when some otherwise defined federal right ․ is breached by a conspiracy.” Great Am. Fed. Sav. & Loan Ass'n v. Novotny, 442 U.S. 366, 376 (1979); see also Cox v. Mills, 465 F. App'x 885, 887 (11th Cir. 2012) (“Section 1985 does not itself create any substantive rights, but instead serves only as a vehicle for vindicating specific federal rights and privileges which have been defined elsewhere.”).

The SAC alleges that the Coalition “has ties to every domestic violence shelter in the State of Connecticut,” and therefore “would have been able to dictate, control, influence, or stop actions, [ ] of the other DV agencies to refuse plaintiff admission to the shelters based on her sex and disability.” (Doc. No. 34 at ¶ 139). The SAC further alleges that the defendants conspired to discriminate against her by, inter alia, denying her entry into shelters “owned or controlled by [the Coalition],” keeping her “in a hotel rather than a shelter,” and ultimately terminating the plaintiff's services on the basis of her gender identity, sex, and disability. (Id. at ¶ 143).

On their face, these allegations appear to describe a conspiracy. The SAC plausibly alleges that the Coalition and its member organizations, e.g., Interval House and the NEDV, conspired to deny the plaintiff housing away from her abuser on the basis of her transgender status and gender dysphoria. However, the SAC crucially fails to specify which federal right it seeks to vindicate in connection with the plaintiff's Section 1985(3) claim. Instead, the SAC merely alleges that “the defendants conspired to violate the plaintiff's rights.” (Doc. No. 34 at ¶ 144). Because Section 1985(3) does not itself create any substantive rights, this omission results in significant confusion, and is alone fatal to the plaintiff's claim.

Moreover, the federal rights that the plaintiff could conceivably seek to vindicate here are not sufficient predicates for a Section 1985(3) claim. Indeed, even accepting that a Section 1985(3) claim can reach a private conspiracy, such a claim must be premised on a violation of only a very narrow subset of federally protected rights, none of which are at issue here. See Griffin v. Breckenridge, 403 U.S. 88, 102 (1971) (warning that although Section 1985(3) extends to some private conspiracies, it is not a “general federal tort law”); Brokaw v. Mercer County, 235 F.3d 1000, 1024 n. 20 (7th Cir. 2000) (“While Section 1985(3) extends to private conspiracies, for a private conspiracy to be actionable it must affect the Thirteenth Amendment right to be free from involuntary servitude, and, in the same Thirteenth Amendment context, the right of interstate travel.”) (internal quotation marks omitted); Sheikh v. Rabin, No. 11-CV-425, 2012 WL 5471085, at *8 (N.D. Ill. Nov. 9, 2012) (finding that “the FHA does not give rise to a cause of action under § 1985(3)”); cf. Mazzocchi v. Windsor Owners Corp., 204 F. Supp. 3d 583, 617 (S.D.N.Y. 2016) (acknowledging the theoretical possibility that a Section 1985(3) claim could be premised on an FHA violation, but dismissing the claim on other grounds).

In light of the foregoing, even construing the plaintiff's Section 1985(3) conspiracy claim as seeking to vindicate her rights as defined in the FHA, ADA, and/or Section 504, the Court cannot find that any of those claims is a sufficient predicate for a Section 1985(3) conspiracy claim.¹³ Accordingly, the Court respectfully recommends that the plaintiff's Section 1985(3) claim be DISMISSED with prejudice.

For avoidance of doubt, insofar as the Court is recommending that the plaintiff's Section 1985(3) conspiracy claim be dismissed with prejudice, the Court further respectfully recommends that the plaintiff's ancillary claim pursuant Section 1986 be similarly DISMISSED with prejudice. See Franco v. McDonald, No. 3:18-CV-1480 (VAB), 2020 WL 264731, at *3 (D. Conn. Jan. 17, 2020) (“Relief under [Section] 1986 flows from a viable claim under [Section] 1985.”).

H. Defamation, Libel, and “Disclosure of Confidential Information”

The SAC alleges defamation, libel, and “disclosure of confidential information” claims against “all defendants.” (Doc. No. 34 at ¶¶ 147–149). Nevertheless, based on the plaintiff's factual allegations in the SAC, the Court has construed the SAC as only alleging a defamation claim against Homewood hotel manager Brendan McDermott, and a “disclosure of confidential information” claim against the Coalition. Indeed, the SAC alleges that Homewood, through McDermott, “committed libel by telling lies on [the plaintiff] to [the Coalition],” and in doing so, defamed her. (Id. at ¶¶ 147–48). The plaintiff further alleges that the Coalition breached her confidentiality by disclosing the plaintiff's whereabouts and status as a victim of domestic violence to Homewood “and others.” (Id. at ¶ 149). In general, the plaintiff alleges that the defendants’ conduct “was done intentionally with malice and deliberate indifference,” and caused harm to the plaintiff's reputation. (Id. at ¶ 149(a)). The Court will address the plaintiff's defamation/libel and “disclosure of confidential information” claims in turn.

1. Defamation/Libel

“Defamation is comprised of the torts of libel and slander: slander is oral defamation and libel is written defamation.” Skakel v. Grace, 5 F. Supp. 3d 199, 206 (D. Conn. 2014); see also Albert v. Loksen, 239 F.3d 256, 265 (2d Cir. 2001) (“[g]enerally, spoken defamatory words are slander; written defamatory words are libel.”). “To establish a prima facie case of defamation, the plaintiff must demonstrate that: (1) the defendant published a defamatory statement; (2) the defamatory statement identified the plaintiff to a third person; (3) the defamatory statement was published to a third person; and (4) the plaintiff's reputation suffered injury as a result of the statement.” Id. “A defamatory statement is a communication that tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.” Egbujo v. Jackson Lewis, P.C., No. 3:21-CV-1450 (KAD), 2022 WL 4585688, at *2 (D. Conn. Sept. 29, 2022), aff'd, No. 22-2854-CV, 2023 WL 8295317 (2d Cir. Dec. 1, 2023) (internal quotations omitted). “To constitute a publication, it is necessary that the defamatory matter be communicated to someone other than the person defamed.” Id. (citing Restatement, Torts § 577 (1938)).

Here, the SAC alleges that the defamatory statements regarding the plaintiff were made by Brendan McDermott. More specifically, the plaintiff alleges that, following her altercation with hotel staff at Homewood, McDermott falsely reported the plaintiff's “misconduct” to the Coalition, and informed the Coalition that the plaintiff needed to leave the hotel. (Doc. No. 34 at ¶¶ 55–56). It is unclear whether the alleged defamatory statements made by McDermott were spoken or written, and to what extent McDermott described the plaintiff's supposed “misconduct,” and what it may have entailed. As such, the Court cannot find that the SAC has adequately set forth a defamation claim against McDermott. Indeed, without more information as to content of McDermott's allegedly defamatory statements, the SAC does not plausibly allege that the statements made by McDermott were defamatory in nature, and how they may have deterred the Coalition from associating or dealing with the plaintiff, or otherwise caused harm to the plaintiff's reputation. See Egbujo, 2022 WL 4585688 at *2.

For the foregoing reasons, the Court respectfully recommends that the plaintiff's defamation claim against Brendan McDermott be DISMISSED without prejudice.

2. “Disclosure of Confidential Information”

As to the plaintiff's “disclosure of confidential information” claim against the Coalition, the SAC alleges that the Coalition wrongfully disclosed to Homewood “and others” that the plaintiff was a victim of domestic violence, as well as other “personal details about [the plaintiff's] characteristics.” (Doc. No. 34 at ¶ 149). The plaintiff further alleges that the Coalition disclosed the plaintiff's whereabouts to Homewood and “other agencies,” which in turn “endanger[ed] her life.” (Id.).

In Connecticut, “the nature of the physician-patient relationship warrants recognition of a common-law cause of action for breach of the duty of confidentiality in the context of that relationship.” Byrne v. Avery Center for Obstetrics & Gynecology, P.C., 327 Conn. 540, 567 (2018). Indeed, “unauthorized disclosure of confidential information obtained in the course of that relationship for the purpose of treatment gives rise to a cause of action sounding in tort against the health care provider, unless the disclosure is otherwise allowed by law.” Id. at 567–68. Here, the SAC does not allege a physician-patient relationship between the plaintiff and the Coalition, nor does it allege that the Coalition is a healthcare provider. As such, the SAC fails to state any such tort claim against the Coalition for an unauthorized disclosure of confidential information. Additionally, the Court is not aware of any cognizable cause of action more precisely addressing the plaintiff's allegations, under either federal, state, or common law.¹⁴ Accordingly, the Court respectfully recommends that the plaintiff's “disclosure of confidential information” claim against the Coalition be DISMISSED with prejudice.

I. Threats, Sexual Harassment, and Assault and Battery

“Count X” of the SAC asserts a “threats, sexual harassment, assault and battery claim” against the Coalition and Homewood. (See Doc. No. 34 at ¶¶ 150–56). The Court has liberally construed the plaintiff's allegations as attempting to set forth a sexual harassment claim against Jose Miranda, and an assault and battery claim against Homewood.

As to the plaintiff's sexual harassment claim, the SAC alleges that “[Coalition] staff sexually harassed [the plaintiff] by attempting to coerce her to oblige with sexually suggestive behavior ․ and attempting to engage [the plaintiff] into sexual innuendo.” (Doc. No. 34 at ¶ 150). Ostensibly, this claim pertains to the plaintiff's earlier allegations that she was sexually propositioned by Coalition advocate Jose Miranda. (See id. at ¶¶ 33–34, 37). The SAC does not identify which statute or cause of action is being invoked in connection with these allegations. While Rule 8 does not permit dismissal on those grounds alone, see Hunnicutt v. Armstrong, 152 F. App'x 34, 35 (2d Cir. 2005), here, the Court is not aware of any cognizable cause of action precisely addressing the plaintiff's sexual harassment allegations. Indeed, sexual harassment claims are generally asserted in the employment context, under either Title VII of the Civil Rights Act of 1964, or in Connecticut, the “Connecticut Fair Employment Practices Act (“CFEPA”) (Conn. Gen. Stat. § 46a-60). See Miro v. City of Bridgeport, No. 3:20-CV-346 (SALM), 2022 WL 3284400, at *6 (D. Conn. Aug. 11, 2022). Moreover, even if the plaintiff's sexual harassment claim could be asserted against the Coalition generally, it is well-settled under Connecticut law that an employer is not vicariously liable for the intentional torts committed by an employee, including for alleged sexual assault and battery. Abate, 130 F. Supp. 2d at 348–49. Accordingly, the Court finds that the SAC has failed to state a viable sexual harassment claim against any defendant.

As to the plaintiff's assault and battery claim, the SAC alleges that Homewood “engaged in attempted assault and battery when an employee attempted to physically assault [the plaintiff] and had to be held back by other employees while the irate employee threatened [the plaintiff] and shouted obscenities referring to her as a ‘faggot’ ” (Doc. No. 34 at ¶ 151). “To establish a claim for assault and battery, plaintiff must prove that defendants applied force or violence to him and that the application of force or violence was unlawful.” Bryant v. Hartford, No. 3:17-CV-01374 (VAB), 2021 WL 4477311, at *14 (D. Conn. Sept. 30, 2021) (citing Ochoa v. City of W. Haven, No. 3:08-CV-24 (DJS), 2011 WL 3267705, at *10 (D. Conn. July 29, 2011)). Even accepting the plaintiff's allegations as true, the SAC does not allege that any “force or violence” was applied to her. Additionally, the SAC does not name the appropriate individual Homewood staff member as a defendant, and the plaintiff's assault and battery claims cannot broadly proceed against Homewood generally. Abate, 130 F. Supp. at 348–49.

For the foregoing reasons, the Court respectfully recommends that the plaintiff's “threats, sexual harassment, and assault and battery” claims (“Count X”) be DISMISSED with prejudice.

J. False Advertising, Criminal Lockout, and Forcible Entry and Detainer

Lastly, “Count XI” of the SAC alleges “false advertising,” and “criminal/illegal lockout forcible entry and detainer” claims against Homewood. (See Doc. No. 34 at ¶¶ 157–163). Specifically, the plaintiff alleges that: (1) Homewood falsely advertised that the hotel utilized a “mobile key” function; and (2) Homewood committed illegal lockout, forcible entry, and detainer pursuant to Conn. Gen. Stat. § 47a-43 (“Section 47a-43”), when it contacted the Manchester Police Department to have the plaintiff removed from the hotel, and then deprived the plaintiff of her personal property, “which to the date of [the SAC] has never been recovered.” (See id.).

1. False Advertising

The plaintiff alleges that she chose to stay at Homewood based on the false advertisement that the hotel utilized mobile keys to access its rooms, and was “aggrieved by the fact that, in fact, the hotel's mobile key system was not active at the time during her stay.” (Doc. No. 34 at ¶¶ 158–59). Once again, the SAC does not indicate which statute or cause of action is being invoked in connection with these allegations. Nevertheless, the Court liberally construes the SAC as alleging that Homewood committed a violation of the Connecticut Unfair Trade Practices Act (“CUTPA”).

CUTPA provides that “[n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” Conn. Gen. Stat. § 41-110b(a). To establish a CUTPA violation, “a plaintiff must first prove that she has suffered an ascertainable loss [as a consequence of the] violation before she may seek relief.” Geiger v. C&G of Groton, Inc., 424 F. Supp. 3d 276, 295 (D. Conn. 2019) (citing Di Teresi v. Stamford Health System, Inc., 149 Conn. App. 502, 509 (Conn. App. 2014)). “An ascertainable loss is capable of being discovered, observed or established, but only requires the loss to be measurable; it does not need to be a precise dollar amount.” Id. Here, while the SAC alleges that the defendants’ conduct caused her “harm, loss of property, pain and suffering, emotional distress, mental injury, and other pecuniary and property loss not yet ascertained,” (see Doc. No. 34 at ¶ 163), the plaintiff has not plausibly alleged any ascertainable loss stemming from a non-functioning mobile key application at Homewood. Indeed, the plaintiff does not even allege that she was, for example, locked out of her hotel room or otherwise inconvenienced by the alleged “false advertisement.” In the absence of any such particularity, the Court finds the plaintiff's allegations to be insufficient. Cf. Geiger, 424 F. Supp. 3d at 296 (“[p]laintiffs allege with specificity factual allegations that put the [d]efendants on notice as to the nature of their [CUTPA] claims.”). Accordingly, the Court respectfully recommends that the plaintiff's false advertising claim be DISMISSED with prejudice.¹⁵

2. Illegal Lockout/Unlawful Entry and Detainer

Liberally construed, the SAC alleges that Homewood committed an illegal lockout and/or entry and detainer when it contacted the Manchester Police Department to have the plaintiff removed from the hotel, and then deprived the plaintiff of her personal property, “which to the date of [the SAC] has never been recovered.” (Doc. No. 34 at ¶¶ 160, 162). The plaintiff further alleges that she was “considered a tenant” at Homewood, having resided there for “30 or more days[,] and therefore was subject to summary process in order to have her removed from the hotel.” (Id. at ¶ 161). The SAC expressly invokes Section 47a-43 in connection with these allegations.

“General Statutes § 47a-43 provides that in order to establish an illegal entry and detainer, the plaintiff must establish that the defendant made forcible entry into premises and detained, or the defendant made peaceable entry, without consent of possessor, and detained, or the defendant entered into premises and caused damage to or removal of plaintiff's personal property, or the plaintiff who is put out of possession would have to cause damage to the premises or commit breach of peace to regain possession.” Cheshire Woodcraft, LLC v. JSMBT Properties, LLC, No. NHH-CV-215004903S, 2023 WL 142309, at *3 (Conn. Super. Ct. Jan. 3, 2023).

Here, the Court finds that the SAC sufficiently pleads an illegal lockout claim against Homewood under Section 47a-43, insofar as the plaintiff has plausibly alleged that she “was put out of possession and would have to risk committing breach of peace to regain possession.” See id. at *4. Indeed, taken as true, the plaintiff's allegations suggest that she was residing at Homewood when she was unlawfully forcibly removed from her hotel room by the police. The plaintiff further alleges that she was deprived of certain unspecified personal property as a consequence of her lockout and ostensibly, asserts this claim seeking to recover her unlawfully detained personal property. (See id.).

In light of the foregoing, the Court respectfully recommends that the SAC be permitted to proceed on the Section 47a-43 illegal lockout claim against Homewood.

K. Leave to Amend

Rule 15(a)(2) of the Federal Rules of Civil Procedure provides that a party shall be given leave to amend “when justice so requires.” However, “[l]eave to amend, though liberally granted, may properly be denied for: undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.” Ruotolo v. City of New York, 514 F.3d 184, 191 (2d Cir. 2008) (internal quotation marks omitted).

The Court's initial Recommended Ruling plainly set forth the various deficiencies in the plaintiff's initial Complaint, and explicitly gave the plaintiff the option to file an Amended Complaint that asserts at least one viable claim over which this Court has subject matter jurisdiction. (See generally Doc. No. 29). The plaintiff thereafter filed the SAC, and in so doing, in part remedied the deficiencies identified in the Court's initial Recommended Ruling. Indeed, as set forth herein, the SAC adequately alleges multiple viable claims over which this Court has federal question jurisdiction, which has, in turn, permitted the Court to exercise supplemental jurisdiction over the plaintiff's various viable state law claims. See 28 U.S.C. § 1367. Accordingly, at this juncture the Court is not convinced that the plaintiff is entitled to further amendment of the SAC, nor is it convinced that any such amendment would be fruitful. In fact, the plaintiff herself has indicated a desire to avoid further delay and move forward with the viable claims set forth in the SAC, and for the Court to “order service as to the defendants.” (See Doc. No. 34 at p. 3). Consequently, the Court respectfully recommends that the plaintiff be denied further leave to amend as to all of her federal and state claims, with the exception of her state law defamation claim against Brendan McDermott (see supra Point IV(H)(1)), and that the SAC be permitted to proceed as described herein.

V. CONCLUSION

For the reasons stated above, the Court respectfully recommends that the Fourteenth Amendment, ADA (Title II), IIED, Section 1981, Section 1985(3), Section 1986, “disclosure of confidential information,” “threats, sexual harassment, and assault and battery,” and false advertising claims be DISMISSED with prejudice. The Court additionally recommends that the defamation claim against Brendan McDermott be DISMISSED without prejudice.

Notwithstanding the foregoing, the Court further respectfully recommends that the SAC be permitted to proceed as to: (1) the FHA, Section 504, and Section 46a-58 and 46a-64c claims against the Coalition, Interval House, and the NEDV; (2) the Title III ADA claim against Homewood; and (3) the Section 47a-43 illegal lockout claim against Homewood.

This is a recommended ruling. See Fed. R. Civ. P. 72(b)(1). Any objections to this recommended ruling must be filed with the Clerk of the Court within fourteen (14) days after filing of such order. See D. Conn. L. Civ. R. 72.2(a). Any party receiving notice of an order or recommended ruling from the Clerk by mail shall have five (5) additional days to file any objection. See D. Conn. L. Civ. R. 72.2(a). Failure to file a timely objection will preclude appellate review. See 28 U.S.C. § 636(b)(1); Rules 6(a) & 72 of the Federal Rules of Civil Procedure; D. Conn. L. Civ. R. 72.2; Impala v. United States Dept. of Justice, 670 F. App'x 32 (2d Cir. 2016) (summary order) (failure to file timely objection to Magistrate Judge's recommended ruling will preclude further appeal to Second Circuit); Small v. Secretary of H.H.S., 892 F.2d 15 (2d Cir. 1989) (per curiam).

Dated at New Haven, this 8th day of March, 2024.

FOOTNOTES

1.   While the Court is cognizant of the plaintiff's pro se status, it must reject the plaintiff's efforts to “reincorporate[ ] and reallege[ ] all defendants into this complaint as alleged in [the plaintiff's] 1st complaint.” (See Doc. No. 34 at 1). Indeed, the plaintiff has been previously informed that her amended pleadings would completely supersede her initial Complaint, and that the Court will only consider the allegations set forth in the SAC when conducting its initial review. (See Doc. No. 29 at 16; Doc. No. 35). As such, in an effort to “eliminate[ ] the confusing nature of ‘piecemeal’ amended complaints,” the Court declines to incorporate into the SAC any of the named defendants or factual allegations set forth in the plaintiff's initial Complaint. See Bennett v. Fletcher, No. 17-CV-849 (GTS) (CFH), 2018 WL 557885, at *1 (N.D.N.Y. Jan. 18, 2018). Nevertheless, the Court has liberally construed the SAC as asserting claims against the following defendants: the Coalition, Interval House, the NEDV, Homewood, Brendan McDermott, Megan Scanlon, Tanya Davis, and Jose Miranda. (See generally Doc. No. 34).

2.   On August 30, 2023, the Court (Nagala, J.) granted the plaintiff's motion for leave to proceed in forma pauperis. (See Doc. No. 16).

4.   The SAC does not specifically allege defendant Jose's last name. However, insofar as the plaintiff's initial Complaint names an individual named Jose Miranda as a defendant in connection these same factual allegations (see Doc. No. 1 at 10), the Court has construed the SAC as asserting claims against Jose Miranda.

5.   For avoidance of doubt, those defendants are: the Coalition, Interval House, the NEDV, Homewood, Brendan McDermott, Megan Scanlon, Tanya Davis, and Jose Miranda.

6.   The Coalition does not appear to provide direct housing to survivors of domestic abuse. Rather, the Coalition has partnered with numerous “member organizations,” including Interval House and the NEDV, to assist in procuring housing to survivors of domestic abuse. See Connecticut Coalition Against Domestic Abuse – “Our Coalition Members” (https://www.ctcadv.org/about/members). Nevertheless, “other entities are frequently held liable under the FHA, ․ and the Second Circuit has extended liability beyond direct housing providers.” Connecticut Fair Hous. Ctr. v. Corelogic Rental Prop. Sols., LLC, 369 F. Supp. 3d 362, 374–75 (D. Conn. 2019). As such, at this juncture, the Court declines to foreclose FHA liability as to the Coalition solely because it is not a direct housing provider.

7.   The plaintiff also claims that she was discriminated against on the basis of her race. (See Doc. No. 34 at ¶ 66). To that end, the SAC only alleges that the Coalition advocate “expressed her disdain for [the plaintiff] being black and using a Latino based services agency for her ongoing substance abuse and mental health care.” (Id. at ¶ 27) (emphasis added). Even accepting those allegations as true, they do not appear related to the denial of housing assistance. As such, they do not implicate the FHA.

8.   The plaintiff contends that the alleged discriminatory conduct “is subject to intermediate scrutiny,” insofar as transgender individuals are “treated as a quasi-suspect class under the Fourteenth Amendment.” (Doc. No. 34 at ¶¶ 72–73). Having determined that the plaintiff has failed to satisfy the threshold state action and “similarly situated” requirements, the Court declines to evaluate the appropriate level of scrutiny to apply to the plaintiff's Fourteenth Amendment claim.

9.   Notably, this allegation is set forth in connection with the plaintiff's FHA, ADA, and Section 504 claims, and not in connection with the plaintiff's Fourteenth Amendment claim. (See Doc. No. 34 at ¶¶ 65, 82, 105).

10.   While the SAC sets forth an ADA claim against “all defendants,” the plaintiff's Section 504 claim is asserted as against the Coalition, Interval House, and the NEDV only.

11.   Section 504 defines “program or activity” as, inter alia, “all of the operations of ․ an entire corporation, partnership, or other private organization, or an entire sole proprietorship ․ which is principally engaged in the business of providing education, health care, housing, social services, or parks and recreation.” 29 U.S.C.A. § 794(b)(3). Upon initial review pursuant to Section 1915, the Court finds that the Coalition, Interval House, and the NEDV plausibly fall under this definition.

13.   Insofar as the plaintiff's conspiracy claim might be grounded in her Fourteenth Amendment and/or Section 1981 claims, state action is required, which the SAC has failed to plausibly allege, for the reasons set forth supra Point IV(B). See Stefanoni v. Darien Little League, Inc., 101 F. Supp. 3d 160, 176 (D. Conn. 2015) (while the “two or more persons” language in the statute indicates that Section 1985 may reach purely private conduct, “the Second Circuit has held that ‘a conspiracy to deny equal protection in violation of the Fourteenth Amendment [under Section 1985(3)] is not actionable in the absence of state action’ ”) (quoting Edmond v. Hartford Ins. Co., 27 Fed. App'x. 51, 53 (2d Cir. 2001)).

14.   Insofar as the SAC could be construed as alleging a violation of the Health Insurance Portability and Accountability Act (“HIPAA”), the Court notes that it is well-established that there is no private cause of action under HIPAA. See Meadows v. United Servs., Inc., 963 F.3d 240, 244 (2d Cir. 2020) (HIPAA “does not expressly [or impliedly] create a private cause of action for individuals ․ Instead, HIPAA provides for penalties to be imposed by the Secretary of the Department of Health and Human Services”); see also 42 U.S.C. § 1320d-6 (proscribing civil and criminal penalties for wrongful disclosure of individual identifiable health information).

15.   Though the claim should be dismissed on other grounds, it bears note that the Court likely does not have supplemental jurisdiction over the plaintiff's purported false advertising claim because it does not appear to arise from the same case or controversy as the claims upon which the Court has original jurisdiction. See 28 U.S.C. § 1367.

Robert M. Spector United States Magistrate Judge