Theodore JENKINS, Plaintiff-Appellant, v. NEW YORK CITY DEPARTMENT OF HOMELESS SERVICES, Defendant-Appellee, 391 F. App'x 81

SUMMARY ORDER Plaintiff-Appellant Theodore Jenkins, proceeding pro se, appeals from a July 8, 2009, 643 F.Supp.2d 507, judgment of the District Court granting defendant’s motion to dismiss the complaint for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). Jenkins alleged that the decision of the New York City Department of Homeless Services (“DHS”) to place him in a mental health shelter as opposed to a general population shelter violated his rights under the Eighth and Fourteenth Amendments to the United States Constitution, the Americans With Disabilities Act of 1990, as amended (“ADA”), 42 U.S.C. § 12132, the Fair Housing Act (“FHA”), 42 U.S.C. § 3604, and

Article 78 of the New York Civil Practice Law and Rules. On appeal, Jenkins explicitly abandons his constitutional and

Article 78 claims. We assume the parties’ familiarity with the underlying facts and the procedural history of the case. We review de novo a District Court’s dismissal for failure to state a claim, see Fed.R.Civ.P. 12(b)(6), assuming all well-pleaded, nonconclusory factual allegations in the complaint to be true, see Ashcroft v. Iqbal, - U.S. -, 129 S.Ct. 1937, 1949-50, 173 L.Ed.2d 868 (2009); Selevan v. N.Y. Thruway Auth., 584 F.3d 82, 88 (2d Cir.2009). We read pro se complaints with “special solicitude” and interpret them to raise the “strongest arguments that they suggest.” Triestman v. Fed.

Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir.2006) (internal quotation marks and citations omitted). A. With respect to each of Jenkins’s claims except for that under the FHA, we conclude, substantially for the reasons stated by the District Court in its July 7, 2009 order, Jenkins v. N.Y. City Dep’t of Homeless Servs., 643 F.Supp.2d 507 (S.D.N.Y.2009), that amendment would be futile and that Jenkins’s complaint fails to state a claim upon which relief can be granted. B.

With respect to Jenkins’s claim under the FHA, we affirm for reasons other than those stated by the District Court, Jenkins, 643 F.Supp.2d at 516-20, because we conclude that the District Court erred in reaching the question of whether (1) the shelter is a “dwelling” and

(2) Jenkins is a “renter” under § 3604(f). There is no doubt that DHS did not “make unavailable or deny, a dwelling,” 42 U.S.C. § 3604(f)(1), to Jenkins. DHS concluded that, as a result of Jenkins’s mental illness — a diagnosis with which Jenkins disagrees but has not challenged — it was safer and more appropriate for Jenkins and other homeless shelter residents for Jenkins to be offered placement in a mental health shelter than in a general population shelter.

In light of Congress’ unequivocal instruction that “[n]othing in [42 U.S.C. § 3604(f)(9) ] requires that a dwelling be made available to an individual whose tenancy would constitute a direct threat to the health or safety of other individuals!,]” Jenkins has failed to state a claim under the FHA, and to permit him leave to amend the complaint would be futile. 42 U.S.C. § 3604(f)(9). CONCLUSION We have considered each of Jenkins’ arguments on appeal and find them to be without merit.

Accordingly, we AFFIRM the judgment of the District Court with respect to each of Jenkins’s claims, except for that under the FHA, on the basis of the Order of the District Court dated July 7, 2009. Jenkins v. N.Y. City Dep’t of Homeless Servs., 643 F.Supp.2d 507 (S.D.N.Y.2009). We AFFIRM the judgment of the District Court with respect to Jenkins’s claim under the FHA on a basis other than that stated by the District Court.