UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK . PETER C, BENEDITH, Plaintiff, 21-CV-8077 (CS) -against- ORDER TO AMEND WHITE PLAINS HOSPITAL, Defendant. CATHY SEIBEL, United States District Judge:
Plaintiff, appearing pro se, paid the filing fee to bring this action under Title VII of the Civil Rights Act of 1964 (Title VII). He also brings state-law discrimination claims under the New York State Human Rights Law (NYSHRL). Plaintiff, who identifies himself as “African,” alleges that Defendant White Plains Hospital declined to hire him as a physician because of his. race, color, and national origin. For the reasons set forth below, the Court grants Plaintiffleave to file an amended complaint within sixty days of the date of this order. STANDARD OF REVIEW The Court has the authority to dismiss a complaint, even when the plaintiff has paid the filing fee, if it determines that the action is frivolous, Fitzgerald v. First E. Seventh Tenants Corp., 221 F.3d 362, 363-64 (2d Cir. 2000) (per curiam) (citing Pillay v. INS, 45 F.3d 14, 16-17 (2d Cir. 1995) (per curiam) (holding that Court of Appeals has inherent authority to dismiss frivolous appeal)), that it fails to state a claim, Wachtler v. County of Herkimer, 35 F.3d 77, 82 . (2d Cir, 1994), or that the Court lacks subject matter jurisdiction, Rukrgas AG vy. Marathon Oil Co., 526 U.S. 574, 583 (1999). The Court is obliged, however, to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the “strongest
{claims] that they suggest,” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original). The exact degree of solicitude that should be afforded to a pro se litigant in any given case depends upon a variety of factors, however, including the procedural context.and relevant characteristics of the particular litigant. Tracy v. Freshwater, 623 F.3d 90 (2d Cir. 2010). frequent pro se litigant may be charged with knowledge of particular legal requirements. See Sledge v. Kooi, 564 F.3d 105, 109-110 (2d Cir. 2009) (discussing circumstances where frequent pro se litigant may be charged with knowledge of particular legal requirements), BACKGROUND
Plaintiff alleges that White Plains Hospital declined to hire him, and that “the decision not to hire was based on discrimination based on [his] race and national origin.” (ECF 1 { IV.) Plaintiff asserts that the failure to hire him “contradicts a stated policy noted on [Defendant’s] website,” but Plaintiff does not provide any other facts in support of his discrimination claim. Plaintiff acknowledges that he has not exhausted his administrative remedies with the Equal Employment Opportunity Commission.’ Plaintiff seeks money damages. DISCUSSION A. Plaintiff fails to state a claim Title VII provides that “[i]t shall be an unlawful employment practice for an . employer . . . to fail or refuse to hire or to discharge any individual, or otherwise to discrimimate against any individual with respect to his compensation, terms, conditions, or privileges of
1 Rven where a right-to-sue letter is required, such as for a Title VII claim, administrative exhaustion is a claim-processing rule that must be raised as an affirmative defense, rather than a. jurisdictional requirement. See Fort Bend Cnty, Texas v. Davis, 139 8. Ct. 1843, 1846 (2019) (“Title VII’s charge-filing instruction is not jurisdictional.”); Hardaway v. Hartford Pub. Works Dep t, 879 F.3d 486, 491 (2d Cir. 2018).
employment, because of such individual’s race, color, religion, sex or national origin.” 42 U.S.C. § 2000e-2(a), The complaint could also be construed as asserting a claim under 42 U.S.C. § 1981, which prohibits discrimination in the making and enforcing of contracts, including employment contracts, “on account of [a person’s] race, ancestry, or ethnic characteristics.” Zemsky v. City of New York, 821 F.2d 148, 150 (2d Cir. 1987). These antidiscrimination provisions prohibit employers from mistreating an individual because of the individual’s protected characteristics, Patane v. Clark, 508 F.3d 106, 112 (2d Cir. 2007), or retaliating against an employee who has opposed any practice made unlawful by those statutes, see Crawford v. Metro. Govt, 555 U.S. 271, 276 (2009) (holding that conduct is protected when it “confront[s],” “resist[s],” or “withstand[s]” unlawful actions). Mistreatment at work that occurs for a reason other than an employee’s protected characteristic or opposition to unlawful conduct is not actionable under these federal antidiscrimination statutes. See Chukwuka
v, City of New York, 513 F. App’x 34, 36 (2d Cir. 2013) (quoting Brown v. Henderson, 257 ¥.3d 246, 252 (2d Cir. 2001)). At the pleading stage in an employment discrimination action, “a plaintiff must plausibly allege that (1) the employer took adverse employment action against him, and (2) his race, color, religion, sex, or national origin was a motivating factor in the employment decision.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 86 (2d Cir. 2015). The plaintiff “may do so by alleging facts that directly show discrimination or facts that indirectly show discrimination by giving rise to a plausible inference of discrimination.” /d. at 87. Plaintiff’s allegations are insufficient to state a claim under Title VII or § 1981. Plaintiff alleges that Defendant discriminated against him by not hiring him, but he does not allege facts suggesting that his race, color, or national origin played any role in Defendant’s decision not to
hire him, Rather, his only allegation is that the failure to hire him “contradicts” a policy statement on Defendant’s website.” Plaintiff makes a legal conclusion that Defendant discriminated against him but does not show a causal connection between Plaintiffs race, color, or national origin and any adverse employment action taken by Defendant. In short, nothing in the complaint suggests that one of Plaintiff’s protected characteristics motivated Defendant not to hire him. Plaintiff seems to rely on the fallacy that because he is a member of a protected class, it is plausible that any adverse employment action directed at him was because of his membership in that class, but it is well settled that such reasoning does not suffice to state a claim. See Watkins v. First Student, Inc., No. 17-CV-1519, 2018 WL 1135480, at *15 G.D.N.Y.
Feb, 28, 2018) (collecting cases). B.
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK . PETER C, BENEDITH, Plaintiff, 21-CV-8077 (CS) -against- ORDER TO AMEND WHITE PLAINS HOSPITAL, Defendant. CATHY SEIBEL, United States District Judge:
Plaintiff, appearing pro se, paid the filing fee to bring this action under Title VII of the Civil Rights Act of 1964 (Title VII). He also brings state-law discrimination claims under the New York State Human Rights Law (NYSHRL). Plaintiff, who identifies himself as “African,” alleges that Defendant White Plains Hospital declined to hire him as a physician because of his. race, color, and national origin. For the reasons set forth below, the Court grants Plaintiffleave to file an amended complaint within sixty days of the date of this order. STANDARD OF REVIEW The Court has the authority to dismiss a complaint, even when the plaintiff has paid the filing fee, if it determines that the action is frivolous, Fitzgerald v. First E. Seventh Tenants Corp., 221 F.3d 362, 363-64 (2d Cir. 2000) (per curiam) (citing Pillay v. INS, 45 F.3d 14, 16-17 (2d Cir. 1995) (per curiam) (holding that Court of Appeals has inherent authority to dismiss frivolous appeal)), that it fails to state a claim, Wachtler v. County of Herkimer, 35 F.3d 77, 82 . (2d Cir, 1994), or that the Court lacks subject matter jurisdiction, Rukrgas AG vy. Marathon Oil Co., 526 U.S. 574, 583 (1999). The Court is obliged, however, to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the “strongest
{claims] that they suggest,” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original). The exact degree of solicitude that should be afforded to a pro se litigant in any given case depends upon a variety of factors, however, including the procedural context.and relevant characteristics of the particular litigant. Tracy v. Freshwater, 623 F.3d 90 (2d Cir. 2010). frequent pro se litigant may be charged with knowledge of particular legal requirements. See Sledge v. Kooi, 564 F.3d 105, 109-110 (2d Cir. 2009) (discussing circumstances where frequent pro se litigant may be charged with knowledge of particular legal requirements), BACKGROUND
Plaintiff alleges that White Plains Hospital declined to hire him, and that “the decision not to hire was based on discrimination based on [his] race and national origin.” (ECF 1 { IV.) Plaintiff asserts that the failure to hire him “contradicts a stated policy noted on [Defendant’s] website,” but Plaintiff does not provide any other facts in support of his discrimination claim. Plaintiff acknowledges that he has not exhausted his administrative remedies with the Equal Employment Opportunity Commission.’ Plaintiff seeks money damages. DISCUSSION A. Plaintiff fails to state a claim Title VII provides that “[i]t shall be an unlawful employment practice for an . employer . . . to fail or refuse to hire or to discharge any individual, or otherwise to discrimimate against any individual with respect to his compensation, terms, conditions, or privileges of
1 Rven where a right-to-sue letter is required, such as for a Title VII claim, administrative exhaustion is a claim-processing rule that must be raised as an affirmative defense, rather than a. jurisdictional requirement. See Fort Bend Cnty, Texas v. Davis, 139 8. Ct. 1843, 1846 (2019) (“Title VII’s charge-filing instruction is not jurisdictional.”); Hardaway v. Hartford Pub. Works Dep t, 879 F.3d 486, 491 (2d Cir. 2018).
employment, because of such individual’s race, color, religion, sex or national origin.” 42 U.S.C. § 2000e-2(a), The complaint could also be construed as asserting a claim under 42 U.S.C. § 1981, which prohibits discrimination in the making and enforcing of contracts, including employment contracts, “on account of [a person’s] race, ancestry, or ethnic characteristics.” Zemsky v. City of New York, 821 F.2d 148, 150 (2d Cir. 1987). These antidiscrimination provisions prohibit employers from mistreating an individual because of the individual’s protected characteristics, Patane v. Clark, 508 F.3d 106, 112 (2d Cir. 2007), or retaliating against an employee who has opposed any practice made unlawful by those statutes, see Crawford v. Metro. Govt, 555 U.S. 271, 276 (2009) (holding that conduct is protected when it “confront[s],” “resist[s],” or “withstand[s]” unlawful actions). Mistreatment at work that occurs for a reason other than an employee’s protected characteristic or opposition to unlawful conduct is not actionable under these federal antidiscrimination statutes. See Chukwuka
v, City of New York, 513 F. App’x 34, 36 (2d Cir. 2013) (quoting Brown v. Henderson, 257 ¥.3d 246, 252 (2d Cir. 2001)). At the pleading stage in an employment discrimination action, “a plaintiff must plausibly allege that (1) the employer took adverse employment action against him, and (2) his race, color, religion, sex, or national origin was a motivating factor in the employment decision.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 86 (2d Cir. 2015). The plaintiff “may do so by alleging facts that directly show discrimination or facts that indirectly show discrimination by giving rise to a plausible inference of discrimination.” /d. at 87. Plaintiff’s allegations are insufficient to state a claim under Title VII or § 1981. Plaintiff alleges that Defendant discriminated against him by not hiring him, but he does not allege facts suggesting that his race, color, or national origin played any role in Defendant’s decision not to
hire him, Rather, his only allegation is that the failure to hire him “contradicts” a policy statement on Defendant’s website.” Plaintiff makes a legal conclusion that Defendant discriminated against him but does not show a causal connection between Plaintiffs race, color, or national origin and any adverse employment action taken by Defendant. In short, nothing in the complaint suggests that one of Plaintiff’s protected characteristics motivated Defendant not to hire him. Plaintiff seems to rely on the fallacy that because he is a member of a protected class, it is plausible that any adverse employment action directed at him was because of his membership in that class, but it is well settled that such reasoning does not suffice to state a claim. See Watkins v. First Student, Inc., No. 17-CV-1519, 2018 WL 1135480, at *15 G.D.N.Y.
Feb, 28, 2018) (collecting cases). B. Leave to amend and litigation history Generally, a court should not dismiss a pro se complaint “without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Dolan v. Connolly, 794 F.3d 290, 295 (2d Cir. 2015) (quoting Chavis □□□ Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (internal quotation marks omitted)). But a court has inherent power to dismiss without leave to amend or replead in “where ... the substance of the claim pleaded is frivolous on its face,” Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir.1988) (citation omitted), or where amendment would otherwise be futile, Hill v. Curcione, 657 F. 3d 116, 123-24 (2d Cir. 2011); see also Shapiro v. McManus, 136 S, Ct. 450, 455-56 (2015) (holding that federal-question jurisdiction is lacking where the claims are “wholly insubstantial
? Plaintiff does not describe the statement on Defendant’s website, but it may be that Defendant is an equal opportunity employer.
and frivolous,” “essentially fictitious,” or “obviously without merit” (internal quotation marks and citations omitted)). Nothing in Plaintiff's complaint suggests that one of his protected characteristics motivated Defendant not to hire him. The Court is therefore inclined to dismiss this action, but in light of Plaintiff’s pro se status, the Court grants him leave to file an amended complaint. See Hill y. Curcione, 657 F.3d 116, 123-24 (2d Cir. 2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir, 1988). The Court notes, however, that Plaintiff is no stranger to federal litigation. See Benedith v. Dept of Medicine Metro Health Ctr. ,21-CV-250 (W.D.N.C. Sept. 28, 2021) (indicating that Plaintiff has filed “over a dozen frivolous lawsuits against hospitals across the country” and moving for a filing injunction). Plaintiff is warned that if he continues to file nonmeritorious lawsuits in this District, he may be ordered to show cause why a filing injunction should not be imposed.
CONCLUSION Plaintiff is granted leave to file an amended complaint that complies with the standards set forth above. Plaintiff must submit the amended complaint to this Court’s Pro Se Intake Unit within sixty days of the date of this order, caption the document as an “Amended Complaint,” and label the document with docket number 21-CV-8077 (CS). An Amended Complaint for Employment Discrimination form is attached to this order. No summons will issue at this time. If Plaintiff fails to comply within the time allowed, and he cannot show good cause to excuse such failure, the complaint will be dismissed for failure to state a claim upon which relief may be granted. Plaintiff has consented to electronic service. SO ORDERED. Dated: □□ [1 [24 White Plains, New York i; , 0 ily dete United States District Judge
eee EET
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
Write the full name of each plaintiff. CVO {Include case number if one has been assigned) ~against- Do you want a jury trial? OlYes [J] No
Write the full name of each defendant, The names listed above must be identical to those contained in Section |.
EMPLOYMENT DISCRIMINATION COMPLAINT
NOTICE . The public can access electronic court files. For privacy and security reasons, papers filed with the court should therefore not contain: an individual's full social security number or full birth date: the full name of a person known to be a minor; or a complete financial account number. A filing may include only: the last four digits of a social security number; the year of an individual's birth; a minor’s initials; and the last four digits of a financial account number. See Federal Rule of Civil Procedure 5.2.
Rev, 3/24/17
I PARTIES A, Plaintiff Information Provide the following information for each plaintiff named in the complaint. Attach additional pages if needed.
First Name Middle Initial Last Name
NN Street Address
County, City State Zip Code
Telephone Number Email Address {if available) B. Defendant Information To the best of your ability, provide addresses where each defendant may be served. If the correct information is not provided, it could delay or prevent service of the complaint on the defendant, Make sure that the defendants listed below are the same as those listed in the caption. (Proper defendants under employment discrimination statutes are usually employers, labor organizations, or employment agencies.) Attach additional pages if needed.
Defendant 1: Name Address where defendant may be served
Defendant 2: Name □□ Address where defendant may be served
Page 2
Defendant 3: Name
Address where defendant may be served
County, City State Zip Code IE, PLACE OF EMPLOYMENT The address at which I was employed or sought employment by the defendant(s) is:
Name
Address a County, City State Zip Code III, CAUSE OF ACTION A. Federal Claims This employment discrimination lawsuit is brought under (check only the options below that apply in your case): O Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17, for employment discrimination on the basis of race, color, religion, sex, or national origin The defendant discriminated against me because of my (check only those that apply and explain): O race: O1 color:
(1 religion: L] sex: national origin:
Page 3
Cl 42 U.S.C. § 1981, for intentional employment discrimination on the basis of race My race is: Cl Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 to 634, for employment discrimination on the basis of age (40 or older) I was born in the year: C1 Rehabilitation Act of 1973, 29 U.S.C. §§ 701 to 796, for employment discrimination on the basis of a disability by an employer that constitutes a program or activity receiving federal financial assistance My disability or perceived disability is: Ol Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 to 12213, for employment discrimination on the basis of a disability My disability or perceived disability is: □ Family and Medical Leave Act of 1993, 29 U.S.C. §§ 2601 to 2654, for employment discrimination on the basis of leave for qualified medical or family reasons B. Other Claims In addition to my federal claims listed above, I assert claims under: [] New York State Human Rights Law, N.Y. Exec. Law §§ 290 to 297, for employment discrimination on the basis of age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, marital status [1 New York City Human Rights Law, N.Y. City Admin. Code §§ 8-101 to 131, for employment discrimination on the basis of actual or perceived age, race, creed, color, national origin, gender, disability, marital status, partnership status, sexual orientation, alienage, citizenship status QO Other (may include other relevant federal, state, city, or county law):
Page 4
IV. STATEMENT OF CLAIM A, Adverse Employment Action The defendant or defendants in this case took the following adverse employment actions against me (check only those that apply): L] did not hire me Ol terminated my employment C1 did not promote me Ol did not accommodate my disability 1 provided me with terms and conditions of employment different from those of similar employees (] retaliated against me [] harassed me or created a hostile work environment C] other (specify):
B. Facts State here the facts that support your claim. Attach additional pages if needed. You should explain what actions defendants took {or failed to take) because of your protected characteristic, such as your race, disability, age, or religion, Include times and locations, if possible. State whether defendants are continuing to commit these acts against you.
As additional support for your claim, you may attach any charge of discrimination that you filed with the U.S. Equal Employment Opportunity Commission, the New York State Division of Human Rights, the New York City Commission on Human Rights, or any other government agency.
Page 5
Vv. ADMINISTRATIVE PROCEDURES For most claims under the federal employment discrimination statutes, before filing a lawsuit, you must first file a charge with the U.S, Equal Employment Opportunity Commission (EEOC) and receive a Notice of Right to Sue. Did you file a charge of discrimination against the defendant(s) with the EEOC or any other government agency? (J Yes (Please attach a copy of the charge to this complaint.) When did you file your charge? [] No. Have you received a Notice of Right to Sue from the EEOC? O Yes (Please attach a copy of the Notice of Right to Sue.) What is the date on the Notice? When did you receive the Notice? C1 No VI RELIEF The relief I want the court to order is (check only those that apply): i) direct the defendant to hire me {] direct the defendant to re-employ me [J direct the defendant to promote me [] direct the defendant to reasonably accommodate my religion direct the defendant to reasonably accommodate my disability O direct the defendant to (specify) (if you believe you are entitled to money damages, explain that here)
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VH. PLAINTIFF’S CERTIFICATION By signing below, I certify to the best of my knowledge, information, and belief that: (1) the complaint is not being presented for an improper purpose (such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation); (2) the claims are supported by existing law or by a nonfrivolous argument to change existing law; (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the complaint otherwise complies with the requirements of Federal Rule of Civil Procedure 11. { agree to notify the Clerk's Office in writing of any changes to my mailing address. I understand that my failure to keep a current address on file with the Clerk's Office may result in the dismissal of my case.
Each Plaintiff must sign and date the complaint. Attach additional pages if necessary. If seeking to proceed without prepayment of fees, each plaintiff must also submit an IFP application.
Dated Plaintiff’s Signature ot First Name Middle Initial Last Name i Street Address
Telephone Number Email Address (if available)
I have read the attached Pro Se (Nonprisoner) Consent to Receive Documents Electronically: (C] No If you do consent to receive documents electronically, submit the completed form with your complaint. If you do not consent, please do not attach the form.
Page 7
ANE DIST gy
of age United States District Court Yel”. #/ Southern District of New York cae Ss Soa Pro Se (Nonprisoner) Consent to Receive Documents Electronically Parties who are not represented by an attorney and are not currently incarcerated may choose to receive documents in their cases electronically (by e-mail} instead of by regular mail. Receiving documents by regular mail is still an option, but if you would rather receive them only electronically, you must do the following: 1. Sign up for a PACER login and password by contacting PACER? at www.pacer.uscourts.gov or 1-800-676-6856; 2, Complete and sign this form. If you consent to receive documents electronically, you will receive a Notice of Electronic Filing by e-mail each time a document is filed in your case. After receiving the notice, you are permitted one “free look” at the document by clicking on the hyperlinked document number in the e-mail.? Once you click the hyperlink and access the document, you may not be able to access the document for free again. After 15 days, the hyperlink will no longer provide free access. Any time that the hyperlink is accessed after the first “free look” or the 15 days, you will be asked for a PACER login and may be charged to view the document. For this reason, you should print or save the document during the “free look” to avoid future charges. IMPORTANT NOTICE Under Rule 5 of the Federal Rules of Civil Procedure, Local Civil Rule 5.2, and the Court’s Electronic Case Filing Rules & Instructions, documents may be served by electronic means, If you register for electronic service: 1. You will no longer receive documents in the mail; 2. If you do not view and download your documents during your “free look” and within 15 days of when the court sends the e-mail notice, you will be charged for looking at the documents; 3. This service does not allow you to electronically file your documents; 4, It will be your duty to regularly review the docket sheet of the case.3
1 Public Access to Caurt Electronic Records (PACER) (www.pacer.uscourts.goy) is an electronic public access service that allows users to obtain case and docket information from federal appellate, district, and bankruptcy courts, and the PACER Case Locator over the internet. 2 You must review the Court's actual order, decree, or judgment and not rely on the description in the email notice alone. See ECF Rule 4.3 3 The docket sheet is the official record of all filings in a case. You can view the docket sheet, including images of electronically filed documents, using PACER or you can use one of the public access computers available in the Clerk's Office at the Court. 500 PEARL STREET | NEW York, NY 10007 300 QUARROPAS STREET | WHITE PLAINS, NY 10601 PRO SE INTAKE UNIT: 212-805-0175 rev, 2/9/15
CONSENT TO ELECTRONIC SERVICE I hereby consent to receive electronic service of notices and documents in my case(s) listed below. I affirm that: 1. Ihave regular access to my e-mail account and to the internet and will check regularly for Notices of Electronic Filing; 2. [have established a PACER account; 3. [understand that electronic service is service under Rule 5 of the Federal Rules of Civil Procedure and Rule 5.2 of the Local Civil Rules, and that I will no longer receive paper copies of case filings, including motions, decisions, orders, and other documents; 4. I will promptly notify the Court if there is any change in my personal data, such as name, address, or e-mail address, or if wish to cancel this consent to electronic service; 5. lTunderstand that I must regularly review the docket sheet of my case so that] do not miss a filing; and 6. lunderstand that this consent applies only to the cases listed below and that if] file additional cases in which I would like to receive electronic service of notices of documents, | must file consent forms for those cases. Civil case(s) filed in the Southern District of New York: Note: This consent will apply to all cases that you have filed in this court, so please list all of your pending and terminated cases, For each case, include the case name and docket number (for example, John Doe v. New City, 10-CV-01234). ed
a Name (Last, First, MI)
Address City State Zip Code
Telephone Number E-mail Address
Date Signature Return completed form to: Pro Se Intake Unit (Room 200) 500 Pearl Street New York, NY 10007