Belynda Raminger v. Southern Tier Independence Center, Inc.

• Court: District Court, N.D. New York
• Decided: July 8, 2026
• Docket: 3:26-cv-01134
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK _____________________________________________

BELYNDA RAMINGER,

Plaintiff,

v. 3:26-CV-1134 (AJB/ML) SOUTHERN TIER INDEPENDENCE CENTER, INC.,

Defendant. _____________________________________________

APPEARANCES: OF COUNSEL:

BELYNDA RAMINGER Plaintiff, Pro Se 72 North Harrison Street Johnson City, New York 13790

MIROSLAV LOVRIC, United States Magistrate Judge

DECISION and ORDER Plaintiff Belynda Raminger (“Plaintiff”) commenced this pro se action against Defendant Southern Tier Independence Center, Inc (“Defendant”) alleging violations of her rights pursuant to—among other statutes—the Americans with Disabilities Act. (Dkt. No. 1.) Plaintiff did not pay the filing fee and seeks leave to proceed in forma pauperis (“IFP”). For the reasons set forth below, I (1) grant Plaintiff’s IFP application, and (2) direct that the Complaint be accepted for filing and requires a response. (Dkt. Nos. 1, 2.) I. PLAINTIFF’S APPLICATION TO PROCEED IN FORMA PAUPERIS When a civil action is commenced in a federal district court, the statutory filing fee, currently set at $405, must ordinarily be paid. 28 U.S.C. § 1914(a). A court is authorized, however, to permit a litigant to proceed IFP status if a party “is unable to pay” the standard fee for commencing an action. 28 U.S.C. § 1915(a)(1).1 After reviewing Plaintiff’s IFP application (Dkt. No. 2), the Court finds that Plaintiff meets this standard. Therefore, Plaintiff’s application to proceed IFP is granted.2

II. SUFFICIENCY OF THE COMPLAINT A. Legal Standard Governing Review of the Complaint “Notwithstanding any filing fee, or any portion thereof, that may have been paid, 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 on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2). In order to state a claim upon which relief can be granted, a complaint must contain, inter alia, “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The requirement that a plaintiff “show” that he or she is entitled to relief means that a complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim

to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (emphasis added) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 [2007]). “Determining whether a complaint states a plausible claim for relief . . . requires the . . . court to draw on its judicial

1 The language of that section is ambiguous because it suggests an intent to limit availability of IFP status to prison inmates. See 28 U.S.C. § 1915(a)(1) (authorizing the commencement of an action without prepayment of fees “by a person who submits an affidavit that includes a statement of all assets such prisoner possesses”). The courts have construed that section, however, as making IFP status available to any litigant who can meet the governing financial criteria. Hayes v. United States, 71 Fed. Cl. 366, 367 (Fed. Cl. 2006); Fridman v. City of N.Y., 195 F. Supp. 2d 534, 536 n.1 (S.D.N.Y. 2002). 2 Plaintiff is reminded that, although her IFP application has been granted, she is still required to pay fees that she may incur in this action, including copying and/or witness fees. experience and common sense. . . . [W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged–but it has not shown–that the pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (internal citation and punctuation omitted).

“In reviewing a complaint . . . the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff’s favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. Courts are “obligated to construe a pro se complaint liberally.” Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009); see also Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam) (reading the plaintiff’s pro se complaint “broadly, as we must” and holding that the complaint sufficiently raised a cognizable claim). “[E]xtreme caution should be exercised in ordering sua

sponte dismissal of a pro se complaint before the adverse party has been served and [the] parties . . . have had an opportunity to respond.” Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983). B. Summary of the Complaint The Complaint alleges wrongdoing that occurred while Plaintiff was employed by Defendant and shortly after Plaintiff’s employment with Defendant ended. (See generally Dkt. No. 1.) More specifically, Plaintiff’s Complaint details her years of employment with Defendant, which appeared to begin to sour in July 2022, when Plaintiff was reassigned to a modified office space with restricted airflow and elevated room temperatures. (Dkt. No. 1 at 10-20.) The Complaint alleges that the modified office space exacerbated Plaintiff’s physical disabilities and on numerous occasions, she requested accommodations. (Id.) The Complaint alleges that in late 2023/early 2024, Plaintiff joined “the new sexual health advocacy committee” at Defendant and shared a video with another employee of Defendant’s. (Id. at 21.) Plaintiff alleges that she was

“aggressively accused” of sexual harassment regarding the educational video that she privately texted to the co-worker in off-work hours. (Id.) Plaintiff alleges that her employment was terminated immediately and she was not provided any written notice of the charges, an opportunity to review the allegations, or any semblance of due process. (Id. at 22-23.) The Complaint alleges that Defendant’s stated reason for terminating Plaintiff was pretextual to mask discrimination and retaliation for Plaintiff’s protected accommodation requests. (Dkt. No. 1 at 23.) Plaintiff alleges that Defendant presented fabricated documents to the New York State Department of Labor to block Plaintiff’s ability to collect unemployment benefits. (Id. at 24-25.) Based on these factual allegations, the Complaint asserts the following seven claims: (1)

a claim of disability discrimination based on the failure to accommodate pursuant to the ADA, 42 U.S.C. § 12112(b)(5)(A); (2) a claim of disability discrimination based on disparate treatment and wrongful termination pursuant to the ADA, 42 U.S.C. § 12112(a); (3) a claim of disability discrimination and hostile work environment pursuant to the ADA, 42 U.S.C. § 12112(a); (4) a claim of retaliation pursuant to the ADA, 42 U.S.C. § 12203(a); (5) a claim of disability discrimination based on the failure to accommodate pursuant to the New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law § 296(3); (6) a claim of wrongful discharge and hostile work environment pursuant to the NYSHRL, N.Y. Exec. Law § 296(1)(a); and (7) a claim of retaliation pursuant to N.Y. Exec. Law § 296(7). (Dkt. No. 1 at 25-29.) As relief, Plaintiff seeks back pay, front pay, compensatory damages, punitive damages, and declaratory relief. (Id. at 29-30.) C. Analysis The ADA has a number of prerequisites to filing suit. See Terry v. YMCA of

Northeastern New York, 24-CV-1492, 2025 WL 2933526, at *4 (N.D.N.Y. Aug. 26, 2025) (Evangelista, M.J.), report and recommendation adopted, 2025 WL 2778360 (N.D.N.Y. Sept. 30, 2025) (Nardacci, J.). Plaintiff specifically alleges that she satisfied these requirements and timely commenced the action. (Dkt. No. 1 at ¶¶ 7-11.) Mindful of the requirement to liberally construe pro se pleadings, Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008), the Court finds that the Complaint alleges enough to warrant a responsive pleading. In so ruling, the Court expresses no opinion as to whether Plaintiff’s claims can withstand a properly-filed motion to dismiss or for summary judgment. Upon reviewing Plaintiff's Complaint pursuant to section 1915(e), the Court finds that Plaintiff may properly proceed with this action.

ACCORDINGLY, it is ORDERED that Plaintiff’s application to proceed in forma pauperis (Dkt. No. 2) is GRANTED; and it is further ORDERED that Plaintiff’s Complaint (Dkt. No. 1) is ACCEPTED for filing; and it is further ORDERED that the Clerk of the Court provide Plaintiff with a blank summons; and it is further ORDERED that Plaintiff complete the proposed summons and send it to the Clerk of the United States District Court, Northern District of New York, James Hanley U.S. Courthouse & Federal Building, 7th Floor, 100 South Clinton Street, Syracuse, New York 13261-7367 within thirty days from the date of this Order; and it is further ORDERED that once the Clerk has received from Plaintiff the completed, proposed summons, that the Clerk shall issue it and forward it, along with a copy of the Complaint and a

packet containing General Order 25, which sets forth the Civil Case Management Plan used by the Northern District of New York, to the United States Marshal for service upon Defendant; and it is further ORDERED that a formal response to the Complaint be filed by Defendant or its counsel as provided for in the Federal Rules of Civil Procedure subsequent to service of process on Defendant; and it is further ORDERED that the Clerk shall schedule a Rule 16 conference before the undersigned; and it is further ORDERED that all pleadings, motions and other documents relating to this action must bear the case number assigned to this action and be filed with the Clerk of the United States

District Court, Northern District of New York, 7th Floor, Federal Building, 100 S. Clinton St., Syracuse, New York 13261-7367. Plaintiff must comply with all requests by the Clerk’s Office for any documents that are necessary to maintain this action. All parties must comply with Local Rule 7.1 of the Northern District of New York in filing motions; motions will be decided on submitted papers, without oral argument, unless otherwise ordered by this Court. Plaintiff is also required to promptly notify the Clerk’s Office and all parties or their counsel, in writing, of any change in her address; her failure to do so may result in the dismissal of this action; and it is further ORDERED, that all motions shall comply with the Local Rules of Practice of the Northern District; and it is further ORDERED that the Clerk of the Court shall file a copy of this Decision and Order on the docket of this case and serve a copy upon the parties in accordance with the local rules.

Dated: July 8 , 2026 Binghamton, New York

Miroslav Lovric U.S. Magistrate Judge

3 The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).

2025 WL 2933526 may properly maintain his complaint before permitting him Only the Westlaw citation is currently available. to proceed further with his action.” Praileau v. Fischer, 930 United States District Court, N.D. New York. F. Supp. 2d 383, 394 (N.D.N.Y. 2013). Elizabeth Marie TERRY, Plaintiff, Where, as here, the plaintiff proceeds pro se, “the court v. must construe his submissions liberally and interpret them YWCA OF NORTHEASTERN to raise the strongest arguments that they suggest.” Kirkland NEW YORK, Defendant. v. Cablevision Sys., 760 F.3d 223, 224 (2d Cir. 2014) (per curiam) (internal quotation marks and citation omitted). As No. 1:24-CV-1492 (AMN/PJE) the Second Circuit stated, | Signed August 26, 2025 [t]here are many cases in which we Attorneys and Law Firms have said that a pro se litigant is entitled to special solicitude, that a Elizabeth Marie Terry, 44 Washington Avenue, Schenectady, pro se litigant's submissions must New York 12305, Plaintiff pro se. be construed liberally, and that such submissions must be read to raise the strongest arguments that they REPORT-RECOMMENDATION AND ORDER1 suggest. At the same time, our cases have also indicated that we PAUL J. EVANGELISTA, UNITED STATES cannot read into pro se submissions MAGISTRATE JUDGE claims that are not consistent with the pro se litigant's allegations, I. In Forma Pauperis or arguments that the submissions themselves do not suggest, that *1 Plaintiff pro se Elizabeth Marie Terry (“plaintiff”) we should not excuse frivolous or commenced this action on December 9, 2024, by filing a vexatious filings by pro se litigants, complaint. See Dkt. No. 1. In lieu of paying this Court's filing and that pro se status does not fee, plaintiff submitted an application for leave to proceed in exempt a party from compliance forma pauperis (“IFP”). See Dkt. Nos. 2, 4. The undersigned with relevant rules of procedural has reviewed plaintiff's IFP application and determines that and substantive law.... she financially qualifies to proceed IFP.2 Pursuant to this review, this Court must now assess the merits of plaintiff's complaint pursuant to 28 U.S.C. §§ 1915, 1915A.3 Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006) (internal quotation marks, citations, and footnote omitted); see also Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008) (“On occasions too II. Initial Review numerous to count, we have reminded district courts that when [a] plaintiff proceeds pro se, ... a court is obligated to A. Legal Standards construe his pleadings liberally.”) (internal quotation marks and citations omitted). Thus, the Court is not required to 28 U.S.C. § 1915 directs that, when a plaintiff seeks to accept unsupported allegations that are devoid of sufficient proceed IFP, “the court shall dismiss the case at any time if facts or claims. Although detailed allegations are not required the court determines that ... the action or appeal (i) is frivolous at the pleading stage, the complaint must still include enough or malicious; (ii) fails to state a claim on which relief may facts to provide the defendants with notice of the claims be granted; or (iii) seeks monetary relief against a defendant against them and the grounds upon which these claims are who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). Ultimately, the plaintiff must plead “enough facts to state FED. R. CIV. P. 10(b). This serves the purpose of “provid[ing] a claim to relief that is plausible on its face.” Twombly, an easy mode of identification for referring to a particular 550 U.S. at 570; see Iqbal, 556 U.S. at 678 (“A claim has paragraph in a prior pleading[.]” Flores, 189 F.R.D. at 55 facial plausibility when the plaintiff pleads factual content (internal quotation marks and citations omitted). A complaint that allows the court to draw the reasonable inference that the that fails to comply with the pleading requirements “presents defendant is liable for the misconduct alleged.”). far too a heavy burden in terms of defendants’ duty to shape a comprehensive defense and provides no meaningful *2 “The [Second Circuit]’s ‘special solicitude’ for pro se basis for the Court to assess the sufficiency of their claims.” pleadings has its limits, because pro se pleadings still must Gonzales v. Wing, 167 F.R.D. 352, 355 (N.D.N.Y. 1996). As comply with ... the Federal Rules of Civil Procedure.”4 the Second Circuit has held, “[w]hen a complaint does not comply with the requirement that it be short and plain, the Kastner v. Tri State Eye, No. 19-CV-10668 (CM), 2019 WL court has the power, on its own initiative ... to dismiss the 6841952, at *2 (S.D.N.Y. Dec. 13, 2019) (quoting Ruotolo complaint.” Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. v. IRS, 28 F.3d 6, 8 (2d Cir. 1994)).5 Specifically, Rule 8 1988) (citations omitted). However, “[d]ismissal ... is usually provides that a pleading which sets forth a claim for relief reserved for those cases in which the complaint is so confused, shall contain, among other things, “a short and plain statement ambiguous, vague, or otherwise unintelligible that its true of the claim showing that the pleader is entitled to relief.” substance, if any, is well disguised.” Id. (citations omitted). FED. R. CIV. P. 8(a)(2). “The purpose ... is to give fair notice of the claim being asserted so as to permit the adverse party the opportunity to file a responsive answer, prepare an adequate defense and determine whether the doctrine of res III. Discussion judicata is applicable.” Flores v. Graphtex, 189 F.R.D. 54, 55 (N.D.N.Y. 1999) (internal quotation marks and citations A. Plaintiff's Complaint6 omitted). Rule 8 also requires the pleading to include “a short and plain statement of the grounds for the court's On a civil complaint form, plaintiff checks the box that jurisdiction ... and ... a demand for the relief sought ....” FED. indicates that this Court has subject matter jurisdiction R. CIV. P. 8(a). Although “[n]o technical form is required,” pursuant to federal question jurisdiction. See Dkt. No. 1 at the Federal Rules make clear that each allegation contained 3.7 Plaintiff states that she had been a YWCA resident in the pleading “must be simple, concise, and direct.” FED. “at the Northeastern New York location since mid-2022.” R. CIV. P. 8(d). Dkt. No. 1-1. She alleges that her Fourteenth Amendment rights have been violated because she has owned a business Further, Rule 10 provides in pertinent part that: since 2011, and “the YWCA previously explained in its 2019 [and] 2023 Resident Handbook, that YWCA residents are not allowed to operate/own a business” and “the Fourteenth [a] party must state its claims or Amendment protects businesses.” Dkt. No. 1 at 3. Plaintiff defenses in numbered paragraphs, further states that “the YWCA previously communicated each limited as far as practicable that [she is] a person with a disability by explaining that to a single set of circumstances. their residents are not allowed to operate a private business, A later pleading may refer by and are not eligible for employment [with] the YWCA on number to a paragraph in an earlier a full time basis.” Id. at 4. Plaintiff's complaint also states pleading. If doing so would promote that she submitted a complaint with the Equal Employment clarity, each claim founded on a Opportunity Commission (“EEOC”) and cites “EEOC law on separate transaction or occurrence disabilities 29 C.F.R. § 1630.2.” Id. at 3; see Dkt. No 1-1. —and each defense other than a denial—must be stated in a separate *3 In exhibits to her complaint, plaintiff alleges that her count or defense. prior roommate was “raped,” and that plaintiff was sexually harassed by YWCA staff. Dkt. No. 1-1. Attached to plaintiff's complaint are copies of the 2019, 2023, and 2024 YWCA the EEOC confirming that plaintiff filed an employment undersigned recommends that plaintiff's complaint, raising discrimination claim against the YWCA; and multiple emails claims for disability discrimination under the ADA, violations between plaintiff and Tamara Flanders, YWCA's Housing of her Fourteenth Amendment rights under Section 1983, Director. See Dkt. Nos. 1-3, 1-4, 1-5; Dkt. No. 1-2 at 1-4; Dkt. and sexual harassment, be dismissed without prejudice and No. 6. with leave to amend for failure to satisfy Rule 8’s pleading requirements. See Salahuddin, 861 F.2d at 42; FED. R. CIV. P. 8(a)(2). B. Analysis8 Liberally construing plaintiff's complaint, plaintiff seeks to 2. Timeliness and Prelitigation Requirements bring claims under the Americans with Disabilities Act (“ADA”) and under 42 U.S.C. § 1983, alleging that she was *4 A plaintiff alleging disability discrimination in violation discriminated against on the basis her disability and that of the ADA must file an EEOC claim within 180 days of her Fourteenth Amendment rights were violated because she the alleged discriminatory action if no claim was filed with believes she is not permitted to operate a business out of a state or local agency, or within 300 days of the alleged the room she rents from YWCA. See generally Dkt. No. discriminatory action if the plaintiff filed a claim with a 1, Dkt. No. 6; see also Triestman, 470 F.3d at 475. (“This state or local agency. See Constantine v. U-Haul Int'l Inc., policy of liberally construing pro se submissions is driven No. 1:15-CV-1204 (MAD/CFH), 2015 WL 13744409, at by the understanding that ‘[i]mplicit in the right of self- *1 (N.D.N.Y. Oct. 9, 2015), report and recommendation representation is an obligation on the part of the court to adopted, No. 1:15-CV-1204 (MAD/CFH), 2015 WL 7272211 make reasonable allowances to protect pro se litigants from (N.D.N.Y. Nov. 16, 2015) (quoting McNight v. Dormitory inadvertent forfeiture of important rights because of their lack Auth. of State of N.Y., 995 F. Supp. 70, 76 (N.D.N.Y. of legal training.’ ”) (quoting Traguth v. Zuck, 710 F.2d 90, 1998) (quoting 42 U.S.C. § 2000e-5(e))). “Thus, only after 95 (2d Cir. 1983)). Plaintiff also alleges that she has been charges are brought before the EEOC and a right-to-sue sexually harassed by YWCA staff. See Dkt. No. 1-1. letter is obtained may an aggrieved party bring an action for relief in federal court.” Id. (quoting Mazzeo-Unum v. Dep't of Transp., No. 1:12-CV-1856, 2013 WL 2636159, at *2 (N.D.N.Y. June 12, 2013) (quoting 42 U.S.C. § 2000e-5(e))) 1. Fed. R. Civ. P. 8 (internal quotation marks omitted). “A right to sue letter is also a statutory prerequisite to suit under the ADA.” As a threshold matter, plaintiff's complaint fails to satisfy Id. (citing Duttweiller v. Upstate Bldg. Maint. Companies, the pleading requirements of Rule 8. See FED. R. CIV. P. Inc., No. 5:05-CV-886 (NAM), 2006 WL 3371754, at *1 8(a). Plaintiff's complaint does not provide “a short and plain (N.D.N.Y. Nov. 20, 2006) (citing 42 U.S.C. §§ 2000e-5(e) statement of the claim showing” why she is entitled to relief. (1); 12117(a))) (“[D]efendants point out that plaintiff has not Id. Plaintiff's complaint alleges that the YWCA discriminated exhausted her administrative remedies because she has not against her because she is disabled and that a YWCA staff obtained a right-to-sue letter from the Equal Employment member sexually harassed her. See Dkt. No. 1 at 3-4, Dkt. Opportunities Commission (‘EEOC’). Such a letter is a No. 1-1. Yet, plaintiff has failed to provide any details or statutory prerequisite to suit under the Americans with information explaining (1) how she is disabled, or (2) how Disabilities Act (‘ADA,’ 42 U.S.C. § 12101 et seq.) ....”); she was discriminated against based on her disability. See see also Mount Sinai Medical Ctr., 882 F. Supp. 353, 355 generally Dkt. No. 1. She also fails to demonstrate that the (S.D.N.Y. 1995) (dismissing the plaintiff's ADA complaint YWCA is subject to § 1983 liability. See id. Further, plaintiff for lack of subject matter jurisdiction because the plaintiff does not include any information surrounding her allegation did not demonstrate the filing of an EEOC claim and receipt that she was sexually harassed. See generally Dkt. No. 1; Dkt. of a right-to-sue letter before commencing suit); see also No. 1-1.9 Without this information, plaintiff's complaint does Redlich v. Albany Law Sch. of Union Univ., 899 F. Supp. not provide “fair notice of the claim[s] being asserted” against 100, 104 (N.D.N.Y. Oct. 3, 1995) (citing Bent v. Mount Sinai the YWCA such that it would have an adequate opportunity Med. Ctr., 882 F. Supp. 353, 355 (S.D.N.Y. 1995)) (“Thus, to file an answer and “prepare an adequate defense.” Flores, absent [the] plaintiff's filing of a complaint with the EEOC matter jurisdiction to entertain [the] plaintiff's ADA claim.”) Plaintiff's complaint, as written, fails to provide a date (internal quotation marks and additional citations omitted). on which an adverse action took place. See generally Dkt. No. 1. As such, the undersigned cannot determine “A plaintiff must bring the federal court action within ninety whether plaintiff satisfied the prelitigation requirement of days of receiving a right-to-sue letter.” Johnson v. Frida's commencing an EEOC claim within 180 days of the Bakery Inc., No. 5:19-CV-1613 (DNH/CFH), 2020 WL alleged discriminatory action. See Constantine, 2015 WL 1904061, at *4 (N.D.N.Y. Apr. 17, 2020) (citing Cornwell v. 13744409, at *2. Accordingly, plaintiff's complaint must also Robinson, 23 F.3d 694, 706 (2d Cir. 1994) (“[A] suit must be dismissed because plaintiff has failed to demonstrate she be commenced not more than 90 days after receipt of the satisfied the prelitigation requirements necessary to proceed right-to-sue letter”)). “It is well settled that if a plaintiff does on her apparent ADA disability discrimination claim before not file suit within 90 days of receiving the EEOC's right-to- this Court. See id. (first citing Cornwell, 23 F.3d at 706, then sue letter, the action must be dismissed, unless extraordinary quoting Ernestine Banks, 2018 WL 922147, at *2). However, circumstances have been established.” Id. (quoting Ernestine Banks v. Avis Budget Grp., 1:16-CV-1320 (MAD/DJS), 2018 WL 922147, at *2 (N.D.N.Y. Feb. 15, 2018) (citing it is possible that, if plaintiff did Skibinski v. Zevnik, Horton, Guibord, McGovern, Palmer & receive a right to sue letter, she Fognani, LLP, 57 F. App'x 900, 901 (2d Cir. 2003) (summary commenced this action within ninety order))). “The filing deadline for the formal complaint is days after receipt of that letter ... not jurisdictional and, like a statute of limitations, is subject [A]s the complaint is completely to equitable tolling[, which] is only appropriate in rare and silent as to whether plaintiff timely exceptional circumstances.” Id. (quoting Ernestine Banks, filed a complaint before the EEOC, 2018 WL 922147, at *2 (quoting Zerilli-Edelglass v. N.Y. received a right to sue letter, and City Transit Auth., 333 F.3d 74, 80 (2d Cir. 2003))) (internal timely commenced this action, due quotation marks and citations omitted). to plaintiff's pro se status, it is recommended that plaintiff's [ADA Here, plaintiff's complaint attaches an email from the EEOC, claims] be dismissed without prejudice dated December 23, 2023, confirming that she filed an and with opportunity to amend employment discrimination claim against the YWCA and to allow plaintiff to provide such advising her that she has “not yet scheduled an interview to information. discuss [her] claim,” and her failure to do so will mean that the EEOC “will not take any action on your inquiry.” Dkt. No. 6. Plaintiff filed this lawsuit on December 9, 2024. See Dkt. No. Cao-Bossa, 2018 WL 5839692, at *3; see Constantine, 2015 1. However, plaintiff does not (1) allege she received a right- WL 13744409, at *1. to-sue letter prior to filing her complaint with the Court, (2) provide the Court a copy of the right-to-sue letter, or (3) state that she commenced this action within ninety days of receipt of a right-to-sue letter. See generally Dkt. No. 1; Constantine, 3. Disability Discrimination: Americans with 2015 WL 13744409, at *1-2. Further, plaintiff has not alleged Disabilities Act and New York State Human Rights Law an extraordinary circumstance tolling the ninety-day filing Even if plaintiff can demonstrate that she met all the requirement. See generally Dkt. No. 1; Constantine, 2015 WL prelitigation requirements, her complaint, as currently 13744409, at *2. pleaded, fails to state a claim for disability discrimination under the ADA or New York State Human Rights Law *5 Moreover, “even if the Court assumes she had met (“NYSHRL”). The ADA states that “[n]o covered entity all of these requirements (or that equitable tolling applies), shall discriminate against a qualified individual on the basis it is unclear whether this federal action would be timely.” of disability in regard to job application procedures, the Cao-Bossa v. Pulcher, No. 1:18-CV-1009 (LEK/CFH), 2018 hiring, advancement, or discharge of employees, employee WL 5839692, at *3 (N.D.N.Y. Nov. 8, 2018), report and compensation, job training, and other terms, conditions, and recommendation adopted as modified, No. 1:18-CV-1009 disability’ includes” “limiting, segregating, or classifying a F.3d 376, 381 (2d Cir. 2001) (citations omitted)). job applicant or employee in a way that adversely affects the opportunities or status of such applicant or employee *6 The ADA defines a “disability” as “a physical because of the disability of such applicant or employee.” Id. or mental impairment that substantially limits one or § 12112(b)(1). Similarly, the New York State Human Rights more of the major life activities of [an] individual.” 42 Law (“NYSHRL”) provides that U.S.C. § 12102(1). “[M]ajor life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, [i]t shall be an unlawful discriminatory lifting, bending, speaking, breathing, learning, reading, practice ... [f]or an employer ... concentrating, thinking, communicating, and working.” Id. because of an individual's ... § 12102(2)(A). However, “[t]he mere presence of a medical disability, ... to refuse to hire or condition does not establish that a plaintiff is disabled.” employ or to bar or to discharge Milner-Koonce, 2022 WL 1500995, at *6 (quoting O'Donnell from employment such individual or to v. King B 100, LLC, No. 1:14-CV-1345 (TJM), 2016 WL discriminate against such individual in 7742779, *9 (N.D.N.Y. May 3, 2016) (additional citations compensation or in terms, conditions omitted). “In addition, it is well settled that temporary or privileges of employment. impairments with little or no long-term permanent impact are not disabilities under the ADA.” Id. (quoting O'Donnell, 2016 WL 7742779, *9) (additional citations omitted)). N.Y. Exec. Law § 296(1)(a). “Temporary, or transitory, impairments are impairment[s] with an actual or expected duration of 6 months or less.” Pitter v. Target Corp., No. 1:20-CV-183 (MAD/CFH), 2020 WL 8474858, at *10 (N.D.N.Y. Sept. 1, 2020), report and To establish a prima facie claim of recommendation adopted, No. 1:20-CV-183 (MAD/CFH), disability discrimination for failure 2020 WL 7767629 (N.D.N.Y. Dec. 30, 2020) (quoting 42 to hire under the ADA, a plaintiff U.S.C. § 12102(3)(B)); see Hernandez v. Int'l Shoppes, LLC, must demonstrate: (1) the employer is 100 F. Supp. 3d 232, 250 (E.D.N.Y. 2015) (citing 42 U.S.C. § subject to the ADA; (2) the plaintiff 12102(3)(B)) (“An individual cannot be regarded as disabled is disabled within the meaning of under the ADA where the impairment is transitory and the ADA or perceived to be so by minor.”). her employer; (3) she was otherwise qualified to perform the essential The NYSHRL defines “disability” as: functions of the job with or without reasonable accommodation; (4) she suffered an adverse employment action; and (5) the adverse action was (a) a physical, mental or medical imposed because of her disability. impairment resulting from anatomical, physiological, genetic or neurological conditions which prevents the exercise of a normal bodily function or is Scalercio-Isenberg v. Morgan Stanley Servs. Grp. Inc., No. demonstrable by medically accepted 19-CV-6034 (JPO), 2020 WL 4547317, at *3 (S.D.N.Y. clinical or laboratory diagnostic Aug. 6, 2020) (citing Davis v. N.Y.C. Dep't of Educ., 804 techniques or (b) a record of such F.3d 231, 235 (2d Cir. 2015) (per curiam)). “[T]he evidence an impairment or (c) a condition necessary for the plaintiff to satisfy this initial burden is regarded by others as such an ‘minimal’ and ‘de minimis[.]’ ” Milner-Koonce v. Albany impairment, provided, however, that City Sch. Dist., No. 1:21-CV-1271 (LEK/CFH), 2022 WL in all provisions of this article 1500995, at *6 (N.D.N.Y. May 12, 2022), report and dealing with employment, the term recommendation adopted as modified, No. 1:21-CV-1271 shall be limited to disabilities which, accommodations, do not prevent and with leave to amend because the above-discussed defects the complainant from performing in could potentially be cured with a better pleading. a reasonable manner the activities involved in the job or occupation sought or held. 4. Housing Discrimination Pitter, 2020 WL 8474858, at *10-11 (quoting N.Y. Exec. Law a. FHA and NYSHRL §§ 292(21)(a)-(c)). An attachment to plaintiff's complaint briefly references that her “previous roommate was raped by YWCA staff” and that Here, even affording plaintiff due solicitude, she has not she was sexually harassed by the YWCA staff. Dkt. No. 1-1. demonstrated a prima facie disability discrimination claim Reading plaintiff's complaint liberally, and affording her due based on failure to hire. See Scalercio-Isenberg, 2020 WL solicitude, plaintiff's complaint could be interpreted as raising 4547317, at *3. Even assuming plaintiff could demonstrate a claim under the Fair Housing Act (“FHA”) or the NYSHRL. that the YWCA is a “covered entity”10 under the ADA, something she has not addressed in her complaint, plaintiff “Sexual harassment claims are cognizable under the FHA has not adequately alleged an adverse employment action and the NYSHRL.” Glover v. Jones, 522 F. Supp. 2d 496, in claiming, conclusorily, that the YWCA has a policy of 503 (W.D.N.Y. 2007) (citing Rich v. Lubin, No. 02 Civ. refusing to hire disabled people or disabled YWCA residents 6786 (TPG), 2004 WL 1124662 at *4 (S.D.N.Y. May 20, for full-time employment. See Dkt. No. 1 at 4. Although 2004)). “The legal standard for sexual harassment claims plaintiff claims that “[t]he YWCA communicated that I am under the FHA has been analogized in the Second Circuit to a person with a disability ... and are (sic) not eligible for the standard pertaining to hostile work environment claims employment [with] the YWCA on a full[-]time basis[,]” under Title VII.” Id. (quoting Rich, 2004 WL 1124662 at plaintiff does not provide any additional explanation, context, *4); see also Spavone v. Transitional Servs. of New York or evidence supporting her allegation. Id. Plaintiff does not Supportive Hous. Program (TSI), No. 16-CV-1219 (MKB), state that she applied for a position with the YWCA nor 2016 WL 2758269, at *6 (E.D.N.Y. May 12, 2016) (same). A allege that “she was otherwise qualified to perform the plaintiff claiming sexual harassment leading to a hostile living essential functions of the job with or without reasonable environment must demonstrate (1) “that she was subjected accommodation.” Scalercio-Isenberg, 2020 WL 4547317, at to harassment that was sufficiently pervasive and severe *3. “Plaintiff does not explain what her disability is, whether so as to create a hostile environment,” and (2) “that a she has a diagnosis for an impairment, or how such disability basis exists for imputing the allegedly harassing conduct substantially limits a major life activity.” Milner-Koonce, to the defendants.” Id. (quoting Rich, 2004 WL 1124662 2022 WL 1500995, at *7. Further, she does not provide a at *4). “Isolated or sporadic sexually inappropriate acts are “record of such impairment” or “a condition regarded by not sufficiently pervasive and severe to constitute sexual others as such an impairment.” Pitter, 2020 WL 8474858, at harassment under the FHA.” Mohamed v. McLaurin, 390 F. *10-11. As such, plaintiff's apparent assertion that the YWCA Supp. 3d 520, 549 (D. Vt. 2019) (quoting Rich, 2004 WL refused to hire her for full-time employment because she is 1124662 at *4, and citing Shellhammer v. Lewallen, 770 F.2d disabled does not suffice to state a claim for failure to hire due 167 (6th Cir. 1985)). “Quid pro quo [sexual] harassment ... to a disability in violation of the ADA or NYSHRL.11 occurs when housing benefits are explicitly or implicitly conditioned on sexual favors.” Glover, 522 F. Supp. 2d at 503 *7 Accordingly, the undersigned concludes that plaintiff's (quoting Honce v. Vigil, 1 F.3d 1085, 1089 (10th Cir.1993)) compliant, as written, fails to establish “a prima facie claim (internal quotation marks and additional citation omitted). of disability discrimination for failure to hire.” Scalercio- Isenberg, 2020 WL 4547317, at *3. However, in light of plaintiff's pro se status, and because it is possible that plaintiff A plaintiff asserting a hostile housing could provide the information necessary to establish a prima environment claim pursuant to Section facie claim of disability discrimination under the ADA 3604(b) must establish that (1) she was sufficiently pervasive and severe by a better pleading. so as to create a hostile housing environment, (2) the harassment was because of the plaintiff's membership 4. 42 U.S.C. § 1983 in a protected class, and (3) the defendant(s) is responsible for the allegedly harassing conduct towards a. State Action the plaintiff. Plaintiff's complaint alleges that the YWCA violated her Fourteenth Amendment due process rights by preventing her from operating a business out of the room she rents from Favourite v. 55 Halley St., Inc., 381 F. Supp. 3d 266, 277 the YWCA. See Dkt. No. 1 at 3-4. However, “[t]o state (S.D.N.Y. 2019) (citing Cain v. Rambert, No. 13-CV-5807 a claim under § 1983, a plaintiff must allege the violation (MKB), 2014 WL 2440596, at *5 (E.D.N.Y. May 30, 2014)). of a right secured by the Constitution and laws of the “As with any claim asserted pursuant to the FHA, a plaintiff United States, and must show that the alleged deprivation must also show a relationship between the discriminatory was committed by a person acting under color of state conduct and housing.” Cain, 2014 WL 2440596, at *5 law.” Gerken v. Gordon, No. 1:24-CV-435 (MAD/CFH), (E.D.N.Y. May 30, 2014) (citing People of State of N.Y. by 2024 WL 4608307, at *11 (N.D.N.Y. Oct. 29, 2024), report Abrams v. Merlino, 694 F. Supp. 1101, 1104 (S.D.N.Y. 1988) and recommendation adopted, No. 1:24-CV-435 (MAD/ (“[P]laintiffs, to succeed, must demonstrate ... a relationship CFH), 2024 WL 5001402 (N.D.N.Y. Dec. 6, 2024) (quoting between the harassment and housing.”)). West v. Atkins, 487 U.S. 42, 48 (1988)). “The traditional definition of acting under color of state law requires that Although plaintiff's complaint alleges that she was sexually the defendant ... exercise[ ] power possessed by virtue of harassed by YWCA staff, plaintiff has failed to provide any state law and made possible only because the wrongdoer details about this incident. See generally Dkt. No. 1; Dkt. No. is clothed with the authority of state law.” Id. (quoting 1-1. Plaintiff does not state when or where this incident or West, 487 U.S. at 49) (internal quotation marks and citation incidents occurred, by whom she was sexually harassed, or omitted). “Because the United States Constitution regulates any details concerning the severity or frequency of the sexual only the Government, not private parties, [with respect to harassment. See id. Plaintiff's complaint, as written, does not a claim brought under § 1983,] a litigant claiming that his establish either sexual harassment creating a hostile living constitutional rights have been violated must first establish environment or quid-pro-quo sexual harassment. See Glover, that the challenged conduct constitutes state action.” Id. 522 F. Supp. 2d at 503 (citing Rich, 2004 WL 1124662 at *4). (quoting Flagg v. Yonkers Sav. & Loan Ass'n, 396 F.3d 178, Plaintiff does not identify membership in a covered protected 186 (2d Cir. 2005)) (internal quotations omitted) (quoting class nor allege that she was sexually harassed due to this United States v. Int'l Brotherhood of Teamsters, 941 F.2d membership. See Favourite, 381 F. Supp. 3d at 277. Further, 1292, 1295 (2d Cir. 1991)); see Baum v. N. Dutchess Hosp., to the extent that plaintiff may be seeking this Court to 764 F. Supp. 2d 410, 419 (N.D.N.Y. 2011) (“State action initiate criminal charges against the unidentified YWCA staff is an essential element of any § 1983 claim.”) (first citing member, there is no private cause of action to enforce state or Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 934 (1982) federal criminal statutes. See, e.g., McFadden v. Ortiz, 5:12- (explaining that the “under color of any statute” language CV-1244 (MAD/ATB), 2013 WL 1789593, at *3 (N.D.N.Y. is to enforce the provisions of the Fourteenth Amendment Apr. 26, 2013). and that if a defendant's conduct satisfies the state-action requirement then that conduct is also action under color of *8 The undersigned concludes that, in its current form, state law under § 1983), then citing Rounseville v. Zahl, plaintiff's complaint does not demonstrate a FHA or 13 F.3d 625, 627-28 (2d Cir. 1994) (noting the state action NYSHRL sexual harassment claim. However, because it is requirement for § 1983)); Pearson v. Chipotle Mexican possible that plaintiff could plead such facts, the undersigned Grill of Colorado, No. 1:15-CV-545 (BKS/CFH), 2015 WL recommends dismissing plaintiff's sexual harassment claim 3604089, at *3 (N.D.N.Y. June 4, 2015) (quoting Agustus v. without prejudice and with leave to amend because the AHRC Nassau, 13-CV-6227 (PKC), 2013 WL 6173782, at *2 omitted))) (“As the Supreme Court has held, the under-color- Here, the YWCA is a § 501(c)(3) charity.12 Therefore, the of-state-law element of § 1983 excludes from its reach merely YWCA is a private party and not state actor. See Gerken, private conduct, no matter how discriminatory or wrongful.”) 2024 WL 4608307, at *11; see generally Lopez v. WYCA (internal quotation marks omitted). of Northeast New York, 1:24-CV-1516 (BKS/PJE), 2025 WL 641569, at *7 (N.D.N.Y. Feb. 25, 2025) (holding that “Private parties generally are not state actors and therefore statements that the YWCA receives federal funding did not are not usually liable under [§] 1983.” Gerken, 2024 WL demonstrate that the YWCA is a state actor). Plaintiff has 4608307, at *11 (quoting Yi Sun v. Saslovsky, No. 1:19- not alleged that the YWCA has taken any action that can CV-10858 (LTS), 2020 WL 6828666, at *7 (S.D.N.Y. Aug. be “fairly attributable” to the state. Id. The only allegation 6, 2020)) (citing Sykes v. Bank of America, 723 F.3d 399, 406 raised in plaintiff's complaint is that she disagrees with the (2d Cir. 2013)); see Basile v. Connolly, 538 F. App'x 5, 7 (2d YWCA's rules forbidding her from operating a business Cir. 2013) (summary order) (“[P]rivate individuals ... cannot out of the room that she rents from the YWCA. See Dkt. be sued under 42 U.S.C. § 1983 absent a plausible allegation No. 1 at 3-4. However, “[p]laintiff fails to allege any facts that they acted under color of state law.”). plausibly suggesting a nexus between defendant[ ] and any state action.” Pearson, 2015 WL 3604089, at *3. *9 A private party's actions can be considered state action in three situations: Moreover, even if plaintiff could amend to demonstrate that the YWCA was acting under the color of state law, she fails to demonstrate how a policy prohibiting her to (1) the private party acts using operate a business out of her residence at the YWCA the coercive power of the state violates her Fourteenth Amendment rights.13 Even if she or is controlled by the state (the had made such a claim and could demonstrate that such “compulsion test”); (2) the private a policy would be violative of her constitutional rights, party willfully participates in joint plaintiff has also not established that the YWCA prevented activity with the state or its functions residents from operating a business out of their rooms; rather, are entwined with state policies (the from the exhibits she submits, it appears that the YWCA “joint action” or “close nexus” test); required preapproval from the YWCA housing director or (3) the state has delegated a public before “working from home.” Dkt. No. 1-5 at 5; Dkt. No. function to the private party (the 1-4 at 6. It also seems as though the former rule relating to “public function” test). operating businesses out of the YWCA residences was only that residents were not permitted to use the YWCA address as their business address as the YWCA is “already a business Gerken, 2024 WL 4608307, at *11. (quoting Rogers v. City of address.” Dkt. No. 1-2 at 1.14 Plaintiff further fails to allege New Rochelle, No. 1:19-CV-0479 (CM), 2019 WL 5538031, that she sought to operate a business out of her residence and at *2 (S.D.N.Y. Oct. 25, 2019)) (citing Fabrikant v. French, the YWCA prohibited her from doing so. 691 F.3d 193, 207 (2d Cir. 2012)). “The fundamental question under each test is whether the private party's challenged *10 Plaintiff's argument appears to be a disagreement actions are ‘fairly attributable’ to the State.” Id. (quoting with, or misunderstanding of, the YWCA's residency rules. Rogers, 2019 WL 5538031, at *2) (quoting Rendell-Baker However, even if plaintiff alleged that the policy still existed v. Kohn, 457 U.S. 830, 838 (1982)). “[A] State normally during the time that she resided at the YWCA and was applied can be held responsible for a private decision ... when it to her in a way that prohibited her from operating her business has ... provided such significant encouragement, either overt out of her YWCA room, she has failed to demonstrate how or covert, that the choice must in law be deemed to be that of this would amount to a violation of her due process or equal the State.” Id. (quoting Blum v. Yaretsky, 457 U.S. 991, 1004 protection rights.15 As such, the undersigned concludes that (1982)) (citations omitted). “The State's ‘[m]ere approval of plaintiff's complaint fails to state a claim under Section 1983. or acquiescence in the initiatives of a private party[, however,] Although it appears unlikely that plaintiff will be able to is not sufficient to justify holding the State responsible for demonstrate that the YWCA was acting under the color of the Second Circuit's directives as to special solicitude – the pauperis (Dkt. Nos. 2, 4) is GRANTED; and it is undersigned recommends that plaintiff's Section 1983 claim be dismissed without prejudice and with leave to amend such RECOMMENDED, that plaintiff's complaint (Dkt. No. 1) be that plaintiff may attempt to demonstrate that Section 1983 DISMISSED without prejudice and with leave to amend; applies to the YWCA, explain how the YWCA policy was it is further applied to her, and demonstrate how such policy violated her Fourteenth Amendment rights. See Lopez, 2025 WL 641569, RECOMMENDED, that in the event the District Judge, following review of this Report-Recommendation and Order, at *7. permits plaintiff an opportunity to amend, plaintiff be given thirty (30) days from the District Judge's Decision and Order adopting this Report-Recommendation and Order to IV. Leave to Amend file an amended complaint, and if plaintiff does not timely file an amended complaint pursuant to the District Judge's Generally, “[a] pro se complaint should not be dismissed Decision and Order, the Clerk may close this case without the without the Court granting leave to amend at least once when requirement of further order of the Court; and it is a liberal reading of the complaint gives any indication that a valid claim might be stated.” Gerken, 2024 WL 4608307, at ORDERED, that the Clerk serve a copy of this Report- *15 (quoting Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) Recommendation and Order on plaintiff in accordance with (citation and internal quotation marks omitted)). “However, Local Rules. if the problems with a complaint are ‘substantive’ rather than the result of an ‘inadequately or inartfully pleaded’ complaint, IT IS SO ORDERED. an opportunity to re-plead would be ‘futile’ and ‘should be denied.’ ” Id. (citing Edwards v. Penix, 388 F. Supp. 3d 135, Pursuant to 28 U.S.C. § 636(b)(1), plaintiff has FOURTEEN 144-45 (N.D.N.Y. 2019)) (quoting Cuoco v. Moritsugu, 222 (14) days within which to file written objections to the F.3d 99, 112 (2d Cir. 2000)). Here, as noted, the undersigned foregoing report. Such objections shall be filed with the Clerk concludes that plaintiff's claims may potentially be cured by of the Court. FAILURE TO OBJECT TO THIS REPORT a better pleading; thus, it is recommended that the entirety of WITHIN FOURTEEN (14) DAYS WILL PRECLUDE plaintiff's complaint be dismissed without prejudice and with APPELLATE REVIEW. See Roldan v. Racette, 984 F.2d opportunity to amend.16 85, 89 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); see also 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 6(a), 72.17 IV. Conclusion *11 WHEREFORE, for the reasons set forth herein, it is All Citations hereby Slip Copy, 2025 WL 2933526 Footnotes 1 This matter was referred to the undersigned for Report-Recommendation and Order pursuant to 28 U.S.C. § 636(b) and N.D.N.Y. L.R. 72.3(d). 2 Plaintiff is advised that although she has been granted IFP status, she is still required to pay any fees and costs she may incur in this action, including, but not limited to, copying fees, transcript fees, and witness fees. Court orders otherwise, any civil action that a non-prisoner pro se litigant commences shall be referred to a Magistrate Judge for the purpose of review under 28 U.S.C. § 1915(e)(2) and 28 U.S.C. § 1915A when an application to proceed in forma pauperis is filed.”) (emphasis added). 4 Hereinafter, “Fed. R. Civ. P.” 5 All unpublished opinions cited in this Report-Recommendation and Order, unless otherwise noted, have been provided to plaintiff. 6 Plaintiff included multiple attachments with her complaint. See Dkt. Nos. 1-1, 1-2, 1-3, 1-4, 1-5; Dkt. No. 6. These attachments have also been reviewed in connection with the initial review of plaintiff's complaint. See Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004) (“A complaint is deemed to include any written instrument attached to it as an exhibit, materials incorporated in it by reference, and documents that, although not incorporated by reference, are integral to the complaint.”) (internal quotation marks and citations omitted). 7 The undersigned's citations to filings connected with this motion refer to the pagination located at the header of each page, which the Court's electronic filing and case management program generated, rather than the individual pagination of each document. 8 Plaintiff's civil cover sheet checks the box indicating “U.S. Government” as the basis of jurisdiction. See Dkt. No. 1-6. However, the United States Government is not a defendant in this action. See generally Dkt. No. 1. Reading plaintiff's complaint liberally and affording her due solicitude, it appears plaintiff likely intended to mean that her claims involve federal question jurisdiction. See generally Cinotti v. Adelman, 709 F. App'x 39, 40 (2d Cir. 2017) (summary order) (“[A]lthough [the plaintiff's] pro se complaint does not refer to 42 U.S.C. § 1983, the district court should have construed it liberally as asserting § 1983 claims, which provide a basis for federal question jurisdiction.”). 9 To the extent possible, the undersigned discusses the merits of these issues and additional deficiencies infra. 10 The ADA prohibits a “covered entity” from discriminating against “a qualified individual on the basis of disability[.]” 42 U.S.C. § 12112(a). “[C]overed entit[ies]” include, among other kinds of institutions, “employer[s].” Id. § 12111(2). And an “employer” is defined as “a person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year[.]” Id. § 12111(5)(A). Mirabal v. Alumaline, Inc., No. 21-CV-5356-ENV-SJB, 2023 WL 8183324, at *1 (E.D.N.Y. Nov. 27, 2023). 11 Factually, the undersigned observes that the policy upon which plaintiff appears to base her disability discrimination claim – that the YWCA does not hire residents for full time employment – does not appear to be a current YWCA policy. See Dkt. No. 1-2 at 1-3 (email chain between plaintiff and the YWCA housing director); see also Dkt. Nos. 1-3, 1-4, 1-5 (YWCA Resident Handbooks from 2019, 2023, and 2024). In emails between plaintiff and the YWCA housing director, the YWCA housing director indicated that the policy against residents operating a business out of their YWCA residence “has been updated” and the policy plaintiff is referring to is “from many years ago that is not a current policy.” Dkt. No. 1-2 at 1, 3. 12 See YWCA NORTHEASTERN NY, https://www.ywca-neny.org/ (last visited Aug. 18, 2025). 13 In citing the Fourteenth Amendment without any context, the undersigned has no way of knowing whether plaintiff is attempting to plead a due process or equal protection claim. 14 It appears that the 2019 and 2023 resident handbooks had a policy that “[n]o resident may operate a business does not contain this policy. See generally Dkt. No. 1-3. Further The YWCA housing director explained that the policy forbidding YWCA residents from working out of their homes had to do with residents not being permitted to use the YWCA address as a business address. See Dkt. No. 1-2 at 1. 15 The Fourteenth Amendment prohibits states from depriving “any person of life, liberty, or property, without due process of law ....” U.S. CONST. amend. XIV, § 1. “Those seeking to invoke its protection must establish that one of these interests is at stake.” Cullen v. Mello, No. 23-413, 2024 WL 1904571, at *1 (2d Cir. May 1, 2024) (internal quotation marks and citations omitted). “The two threshold questions in any § 1983 claim for denial of procedural due process are whether the plaintiff possessed a liberty or property interest protected by the United States Constitution or federal statutes, and, if so, what process was due before plaintiff could be deprived of that interest.” Nicholas v. Seggos, No. 8:23-CV-463 (GTS/CFH), 2023 WL 6121164, at *5 (N.D.N.Y. Sept. 19, 2023), report and recommendation adopted, No. 8:23-CV-0463 (GTS/CFH), 2023 WL 7004103 (N.D.N.Y. Oct. 24, 2023) (quoting Green v. Bauvi, 46 F.3d 189, 194 (2d Cir. 1995) (citation omitted)). “The Equal Protection Clause requires state actors to treat similarly situated persons alike.” Barzee v. Tyler, No. 8:21-CV-902 (GTS/CFH), 2022 WL 1406606, at *9 (N.D.N.Y. May 3, 2022), report and recommendation adopted, No. 8:21-CV0 0902 (GTS/CFH), 2022 WL 2079084 (N.D.N.Y. June 9, 2022) (citing City of Cleburn, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)). “Typically an equal protection claim is brought by a member of a vulnerable class, who alleges discrimination based upon that membership.” Id. (quoting AYDM Assocs., LLC v. Town of Pamelia, 205 F. Supp. 3d 252, 265 (N.D.N.Y. 2016)) (citing Harlen Assocs. v. Incorporated Village of Mineola, 273 F.3d 494, 499 (2d Cir. 2001)). 16 In the event the District Judge adopts the undersigned's Report-Recommendation & Order and plaintiff is permitted to amend her complaint, plaintiff is advised that any amended pleading cannot incorporate a prior pleading by reference. Any amended pleading supersedes and replaces a prior pleading in its entirety. An amended pleading must establish this Court's jurisdiction and state a claim for relief against each named defendant for which leave to replead was granted according to Rules 8 and 10 of the Federal Rules of Civil Procedure. 17 If you are proceeding pro se and are served with this Report-Recommendation and Order by mail, three (3) additional days will be added to the fourteen-day (14) period, meaning that you have seventeen (17) days from the date the Report-Recommendation and Order was mailed to you to serve and file objections. See FED. R. CIV. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. See id. § 6(a)(1)(c). End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2025 WL 2778360 (C). “To be ‘specific,’ the objection must, with particularity, Only the Westlaw citation is currently available. ‘identify [1] the portions of the proposed findings, United States District Court, N.D. New York. recommendations, or report to which it has an objection and [2] the basis for the objection.’ ” Petersen v. Astrue, Elizabeth Marie TERRY, Plaintiff, 2 F. Supp. 3d 223, 228-29 (N.D.N.Y. 2012) (alteration in v. original) (quoting N.D.N.Y. Local Rule 72.1(c)). If no specific YWCA OF NORTHEASTERN objections have been filed, this Court reviews a magistrate NEW YORK, Defendant. judge's report-recommendation for clear error. See Petersen, 2 F. Supp. 3d at 229 (citing Fed. R. Civ. P. 72(b) advisory 1:24-cv-01492 (AMN/PJE) committee's notes to 1983 addition). Similarly, when a party | files “[g]eneral or conclusory objections, or objections which Signed September 30, 2025 merely recite the same arguments [previously] presented to the magistrate judge,” the district court reviews a magistrate Attorneys and Law Firms judge's report-recommendations for clear error. O'Diah v. Mawhir, No. 08-cv-322, 2011 WL 933846, at *1 (N.D.N.Y. ELIZABETH MARIE TERRY, 730 Plymouth Avenue – Apt. Mar. 16, 2011) (citations omitted); accord Mario v. P & 3, Buffalo, New York 14213, Plaintiff pro se. C Food Mkts., Inc., 313 F.3d 758, 766 (2d Cir. 2002) (a “statement, devoid of any reference to specific findings or recommendations to which [the plaintiff] objected and why, ORDER and unsupported by legal authority, was not sufficient to preserve” a claim); Petersen, 2 F. Supp. 3d at 228-29 & n.6 Anne M. Nardacci, United States District Judge: (collecting cases). “When performing such a ‘clear error’ I. INTRODUCTION review, ‘the court need only satisfy itself that there is no *1 On December 9, 2024, plaintiff pro se Elizabeth Marie clear error on the face of the record in order to accept the Terry (“Plaintiff”) commenced this action against defendant recommendation.’ ” Dezarea W. v. Comm'r of Soc. Sec., No. YWCA of Northeastern New York (“Defendant”). Dkt. No. 1 21-cv-01138, 2023 WL 2552452, at *1 (N.D.N.Y. Mar. 17, (“Complaint”). Plaintiff sought and ultimately received leave 2023) (quoting Canady v. Comm'r of Soc. Sec., No. 17- to proceed in forma pauperis. Dkt. Nos. 2, 4, 7 at 1-2.1 cv-0367, 2017 WL 5484663, at *1 n.1 (N.D.N.Y. Nov. 14, 2017)). This matter was referred to United States Magistrate Paul *2 “[I]n a pro se case, the court must view the submissions J. Evangelista, who reviewed the Complaint pursuant to 28 by a more lenient standard than that accorded to ‘formal U.S.C. § 1915(e) and, on August 26, 2025, issued a report- pleadings drafted by lawyers.’ ” Govan v. Campbell, 289 recommendation and order recommending that the Complaint F. Supp. 2d 289, 295 (N.D.N.Y. 2007) (quoting Haines be dismissed with leave to amend. Dkt. No. 7 (“Report- v. Kerner, 404 U.S. 519, 520 (1972)) (additional citations Recommendation”). Magistrate Judge Evangelista advised omitted). The Second Circuit has held that courts are that pursuant to 28 U.S.C. § 636(b)(1), Plaintiff had fourteen obligated to “make reasonable allowances to protect pro se days within which to file written objections and that failure to litigants” from inadvertently forfeiting legal rights merely object to the Report-Recommendation within fourteen days because they lack a legal education. Id. (quoting Traguth v. would preclude appellate review. Id. at 23. Plaintiff filed Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). That said, “even a objections on September 10, 2025. Dkt. No. 10. pro se party's objections to a Report and Recommendation must be specific and clearly aimed at particular findings in For the reasons set forth below, the Court adopts the Report- the magistrate's proposal ....” Machicote v. Ercole, No. 06- Recommendation in its entirety. cv-13320, 2011 WL 3809920, at *2, (S.D.N.Y. Aug. 25, 2011) (citation omitted); accord Caldwell v. Petros, No. 22-cv-567, II. STANDARD OF REVIEW 2022 WL 16918287, at *1 (N.D.N.Y. Nov. 14, 2022). After This Court reviews de novo those portions of a magistrate appropriate review, “the court may accept, reject or modify, judge's report-recommendation that have been properly the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). objection to the Report-Recommendation, the Court reviews the Report-Recommendation for clear error. Petersen, 2 F. Supp. 3d at 228-29; Caldwell, 2022 WL 16918287, III. DISCUSSION at *1. Upon review, the Court discerns no clear The Court adopts those aspects of the Report- error in Magistrate Judge Evangelista's findings and Recommendation to which no party has raised a specific recommendations. See generally Dkt. No. 7. As a result, the objection, finding no clear error therein, including the Report-Recommendation is adopted in its entirety. background and the legal framework set forth in the Report- Recommendation, familiarity with which is presumed for purposes of this decision. IV. CONCLUSION Accordingly, the Court hereby As detailed at length in the Report-Recommendation, Magistrate Judge Evangelista liberally construed Plaintiff's ORDERS that the Report-Recommendation, Dkt. No. 7, is allegations as seeking to bring discrimination claims and a ADOPTED in its entirety; and the Court further claim for violation of her Fourteenth Amendment rights. Dkt. No. 7 at 5-21. After examining the various deficiencies in ORDERS that Plaintiff's Complaint, Dkt. No. 1, is Plaintiff's allegations, including finding that she had failed DISMISSED with leave to amend; and the Court further to satisfy Rule 8 of the Federal Rules of Civil Procedure, he ultimately concluded that she had failed to state a claim. Id. ORDERS that any amended complaint must be filed within Given the nature of these deficiencies, however, Magistrate thirty (30) days of the filing date of this Order; and the Court Judge Evangelista recommended dismissal with leave to further amend. Id. at 22-23. ORDERS that, if Plaintiff timely files an amended complaint, Plaintiff's objections largely summarize the Report- it shall be referred to Magistrate Judge Evangelista for review; Recommendation and identify no error in Magistrate Judge and if Plaintiff fails to file a timely amended complaint, the Evangelista's findings or recommendations. Dkt. No. 10 at Clerk is directed to close this case without further order of this 1-4. To the extent that Plaintiff takes issue with the Report- Court; and the Court further Recommendation, the nature of her challenge is difficult to discern. Id. at 4 (objecting to consideration of whether *3 ORDERS that the Clerk serve a copy of this Order on all Plaintiff had stated a disability discrimination claim because parties in accordance with the Local Rules.2 “[t]he Plaintiff does not have a disability and is not alleging that she was discriminated against on the basis of her literally IT IS SO ORDERED. having a disability”); id. at 5 (objecting to recommendation that Plaintiff receive leave to amend the Complaint). All Citations Slip Copy, 2025 WL 2778360 Footnotes 1 Citations to docket entries utilize the pagination generated by CM/ECF, the Court's electronic filing system, and not the documents’ internal pagination. 2 The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein. End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.