Jolly v. Excelsior College

• Court: District Court, N.D. New York
• Decided: October 12, 2021
• Docket: 1:21-cv-00621
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK _____________________________________________

MAKETA S. JOLLY,

Plaintiff, 1:21-CV-621 v. (DNH/TWD)

EXCELSIOR COLLEGE, MARY LEE POLLARD, LAURA BALDWIN JUFFA, JOANNE LEONE, PHILLIS MITCHELL, JOHN HERMINA,

Defendants. _____________________________________________

APPEARANCES:

MAKETA S. JOLLY Plaintiff, pro se 42 Kingston Terrace Aston, Pennsylvania 19014

THÉRÈSE WILEY DANCKS, United States Magistrate Judge

ORDER AND REPORT RECOMMENDATION

On May 31, 2021, Maketa S. Jolly (“Plaintiff”) filed a complaint against Excelsior College in the United States District Court for the Eastern District of New York. (Dkt. No. 1.) The Honorable Pamela K. Chen, United States District Judge, transferred the entire action to this District. (Dkt. No. 2.) Thereafter, Plaintiff filed an amended complaint and an application to proceed in forma pauperis. (Dkt. No. 5 (the amended complaint); Dkt. No. 7 (the “IFP Application”).) The amended complaint asserts claims against Excelsior College and added claims against Mary Lee Pollard (“Pollard”), Laura Baldwin Juffa (“Juffa”), Joanne Leone (“Leone”), Phillis Mitchell (“Mitchell”), and John Hermina (“Hermina”) (collectively “Defendants”) in their individual capacities. (Dkt. No. 5.) With respect to her IFP Application, a court may grant in forma pauperis status if a party “is unable to pay” the standard fee for commencing an action. 28 U.S.C. § 1915(a)(1). After reviewing Plaintiff’s IFP Application (Dkt. No. 7), the Court finds Plaintiff meets this standard. Therefore, her IFP Application is granted. Where, as here, a Plaintiff’s IFP Application is granted, 28 U.S.C. § 1915(e) directs that

“the court shall dismiss the case at any time if [it] 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)(B). To determine whether an action is frivolous, a court must look to see whether the complaint “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). To survive dismissal for failure to state a claim, a complaint must plead enough facts to state a claim that is “plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In determining whether a complaint states a claim upon which relief may be granted, “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).1

1 A pro se litigant’s pleadings are held to a less strict standard than attorney drafted pleadings. See Fed. Express Corp. v. Holowecki, 552 U.S. 389, 402 (2008) (“Even in the formal litigation context, pro se litigants are held to a lesser pleading standard than other parties.”). Where, as in this case, a plaintiff is proceeding pro se, the court construes his pleadings “to raise the strongest arguments that they suggest.” See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 475 (2d Cir. 2006) (per curiam) (internal quotation marks omitted). However, this “does not exempt a [pro se litigant] from compliance with relevant rules of procedural and substantive law.” Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983). Turning to Plaintiff’s amended complaint, she generally asserts that Pollard, who was the “Dean of Nursing” at Excelsior College, transmitted false information about her academic record to state boards of nursing in 2018. (Dkt. No. 5 at 3.) Specifically, Plaintiff claims Excelsior College—through Pollard—violated its stated privacy policies and disseminated a “Cease and Desist” letter regarding Plaintiff’s academic achievements. Id. at 18. The impact of Excelsior’s

actions, according to Plaintiff, denied her access to become a nurse in Vermont and resulted in disciplinary action against her in New Jersey. She asserts that Leone, who is allegedly the Executive Director of the New Jersey Nursing Board, worked in concert with Excelsior College and illegally disseminated information regarding Plaintiff’s nursing credentials. Id. at 4-5. Plaintiff alleges Leone assisted Excelsior College in defending against Plaintiff’s claims in various court proceedings. Id. Moreover, she contends Leone was the architect of the New Jersey Board of Nursing’s decision to initiate discipline against her. Id. To that end, Plaintiff claims Leone determined that her New Jersey Registered Nurse (“RN”) license was awarded in error and that she was only eligible for an

“LPN” license. Id. at 4. Thereafter, on May 14, 2020, New Jersey initiated disciplinary procedures against Plaintiff to remove her RN license. Id. at 9. Plaintiff claims that, because she was not a New Jersey resident, New Jersey did not have jurisdiction to revoke her RN license. Id. at 5, 10. With respect to Mitchell, Plaintiff claims she works for the Vermont Board of Nursing and improperly denied Plaintiff an opportunity to take the RN licensure examination. Id. at 14- 15. Plaintiff asserts that Mitchell acted outside her authority and contrary to Vermont regulatory guidance and—like Leone—assisted Excelsior College in its litigation efforts against Plaintiff. Id. at 17. In addition to the individuals who work for Excelsior College and the various state boards of nursing, Plaintiff sued two attorneys: Juffa and Hermina. Regarding Juffa, Plaintiff asserts she represented Excelsior College in litigation in 2014 and 2018, “against allegations made by former minority students who alleged misrepresentation, fraud, and violations of New York General Business Laws 349 and 350.” Id. at 11. Although it is not entirely clear, Plaintiff

asserts that Juffa denied her rights associated with the First Amendment “through misleading documents and misrepresentations of facts” during the course of representing Excelsior College in litigation. Id. at 13. With respect to Hermina, from what the Court can glean, he was class- counsel for several actions against Excelsior College regarding its treatment of minority students. Id. at 18-19. According to Plaintiff, he never represented her, and she is now suffering from the legal impact of “general releases” allegedly “procured through fraudulent conduct that cited Plaintiff in an incorrect legal proceeding Shawanda et. al. v. Excelsior College 1:2017 cv 06263.” Id. at 19 (italics added). In several places in her amended complaint, Plaintiff acknowledges this is not her first

time asserting these claims in federal court. Indeed, on the first page of the amended complaint, Plaintiff acknowledges this action was “[p]reviously filed in the Eastern District of Pennsylvania and New York[.]” Id. at 1. Moreover, in reference to her previous case, Plaintiff asserts that United States District Judge David N. Hurd “scribed misleading and inappropriate remarks” and his previous judicial rendering was “biased” in adjudicating these very claims in a previous action. Id. at 19. That action was filed against Excelsior College, the State of Vermont Board of Nursing, and the State of New Jersey Board of Nursing, on May 21, 2019, in the Eastern District of Pennsylvania and subsequently transferred to this District Court thereafter. Jolly v. Excelsior Coll., No. 1:19-CV-1317, 2020 WL 3128535, at *3 (N.D.N.Y. June 12, 2020) (“Jolly I”), reconsideration denied, No. 1:19-CV-1317, 2020 WL 3606374 (N.D.N.Y. July 2, 2020) (“Jolly (reconsideration)”) appeal dismissed as frivolous, Order, No. 20-2162 (2d Cir. Mar. 11, 2021), ECF No. 163. In Jolly I, the Court granted Excelsior College’s motion to dismiss on June 12, 2020.2 In that case, the Court carefully considered Plaintiff’s allegations that “Excelsior conspired with the Vermont and Jersey boards to smear her reputation and prevent her from

becoming an RN because she is an African American woman.” Jolly I, 2020 WL 3128535, at *4. Nevertheless, the Court found that none of her allegations supported a plausible legal claim and dismissed the complaint with prejudice. It is apparent from the face of the amended complaint in this action that Plaintiff is attempting to re-litigate a putatively new set of claims from the exact same set of facts that formed the basis for her previous action. Given this conclusion, the Court must recommend finding that the amended complaint is barred by the doctrine of res judicata. “Under the doctrine of res judicata, once a final judgment has been entered on the merits of a case, that judgment will bar any subsequent litigation by the same parties or those in privity

with them concerning the transaction, or series of connected transactions, out of which the [first] action arose.” See Cieszkowska v. Gray Line New York, 295 F.3d 204, 205 (2d Cir. 2002) (quoting Maharaj v. Bankamerica Corp., 128 F.3d 94, 97 (2d Cir. 1997)) (internal quotation marks omitted) (alterations in original); accord Waldman v. Village of Kiryas Joel, 207 F.3d 105, 108 (2d Cir. 2000). In other words, later actions will be res judicata and subject to dismissal if

2 The Court read Plaintiff’s complaint to assert seven claims: (1) disclosure of personal information; (2) violation of 18 U.S.C. § 242 (“§ 242”); (3) conspiracy under 42 U.S.C. § 1985 (“§ 1985”); (4) discrimination under 42 U.S.C. § 2000e (“Title VII”); (5) Excelsior’s violation of attorney-client privilege; (6) another Title VII claim; and (7) a defamation claim. Jolly I, 2020 WL 3128535, at *3. In its decision on Plaintiff’s motion for reconsideration, the Court even considered whether she could have plausibly alleged a 42 U.S.C. § 1983 claim against Pollard in her individual capacity. See Jolly (reconsideration), 2020 WL 3606374, at *2. “(1) the previous action involved an adjudication on the merits; (2) the previous action involved the [parties] or those in privity with them; [and] (3) the claims asserted in the subsequent action were, or could have been, raised in the prior action.” Pike v. Freeman, 266 F.3d 78, 91 (2d Cir. 2001) (quoting Monahan v. N.Y.C. Dep’t of Corr., 214 F.3d 275, 284–85 (2d Cir. 2000)) (internal quotation marks omitted) (alterations in original).

Given that Jolly I ended with dismissal on the merits, the same actors were involved,3 and the claims that form the basis for this complaint were or could have been brought in the previous case, the doctrine of res judicata squarely bars this action. See Lopez v. Jet Blue Airways, No. 12-CV-0057, 2012 WL 213831, at *2 (E.D.N.Y. Jan. 24, 2012). To be sure, there are some differences in the two actions—most notably that she is suing Pollard, Leone, and Mitchell in their individual capacity—however, that difference does not alter the Court’s conclusion. Critically, Plaintiff could have raised all the relevant facts and claims against those individuals in her action in 2019. Thus, the Court concludes that the amended complaint is nothing more than a re-dressing of the same facts in a new complaint—originally in a different court—to

circumvent the previous dismissal. Accordingly, the Court recommends dismissing the amended complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Ordinarily, a pro se complaint should not be dismissed without leave to amend. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (quoting Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999) (other citation omitted). However, where, as here, better

3 The Court notes that Hermina and Juffa were not named in the previous complaint or implicated in the merits of Plaintiff’s claims. Indeed, Juffa was counsel of record for Excelsior College in Jolly I. However, the Court is at a loss for what—if any—claims Plaintiff asserts against these putative Defendants. The Court finds that Plaintiff’s allegations against those Defendants are frivolous and recommends dismissing those individuals pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). pleading could not cure the substantive defects in the complaint, repleading would be futile and should not be permitted. Therefore, the Court recommends dismissing the amended complaint without leave to amend. WHEREFORE, it is hereby ORDERED that Plaintiff's IFP Application (Dkt. No. 7) is GRANTED, and it is further RECOMMENDED that Plaintiff's amended complaint (Dkt. No. 5) be DISMISSED WITHOUT LEAVE TO AMEND; and it is further ORDERED that the Clerk serve a copy of this Order and Report-Recommendation on Plaintiff, along with a copy of the unpublished decisions cited herein in accordance with the Second Circuit’s decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam). Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report.* Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small vy. Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed. R. Civ. P. 72, 6(a).

Dated: October 12, 2021 Syracuse, New York =

United States Magistrate Judge

* If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Order and Report-Recommendation was mailed to you to serve and file objections. 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. Fed. R. Civ. P. 6(a)(1)(C).

2020 WL 3128535 she graduated from a program that would make her qualified to work as an RN. Id. at 25-26. Plaintiff alleges that she was Only the Westlaw citation is currently available. attempting to apply for the examination through an alternate United States District Court, N.D. New York. qualification process, and never intended to state that she had Maketa S. JOLLY, Plaintiff graduated from defendant's program, but Vermont's system v. still required her to list her graduation date. Id. EXCELSIOR COLLEGE, Defendant. On March 7, 2018, Jolly received an email from Vermont's 1:19-CV-1317 Licensing Administrator, Michelle Lavoie (“Lavoie”) | informing plaintiff that she had received plaintiff's college Signed 06/12/2020 transcripts, but that her application remained incomplete. Comp. 26. After several volleys of communication back and Attorneys and Law Firms forth, Lavoie ultimately told plaintiff that her paperwork could not be accepted and that she would need a verification MAKETA S. JOLLY, Plaintiff pro se, 42 Kingston Terrace, of education form from Excelsior. See Comp. 95-99. Aston, Pennsylvania 19014. OF COUNSEL: LAURA B. JUFFA, ESQ., KAUFMAN On July 31, 2018, an unnamed party allegedly informed BORGEEST & RYAN, LLP, Attorneys for defendant, 120 New Jersey's Board of Nursing (“the Jersey board”) that Broadway 14th Floor, New York, New York 10271. Jolly had attempted to receive an RN license in Vermont by misrepresenting that she had an associate degree from Excelsior's RN program. Comp. at 102. On August 15, 2018, defendant allegedly confirmed to the Jersey Board that MEMORANDUM–DECISION and ORDER plaintiff had attended Excelsior's nursing program but had DAVID N. HURD, United States District Judge received no degree. Id. at 102-03. The Jersey Board brought a disciplinary action against plaintiff, and she ultimately I. INTRODUCTION AND BACKGROUND waived her right to a hearing and accepted a five-year - *1 Plaintiff Maketa S. Jolly (“Jolly” or “plaintiff”) is an suspension of her LPN license in New Jersey on December African American woman and a Licensed Practical Nurse 6, 2018.2 Id. at 104. (“LPN”). At some point during the mid-to-late 2000s, she began to consider progressing her career and looked into *2 In February of 2019, Jolly alleges that New Jersey's becoming a Registered Nurse (“RN”). Dkt. 2 (“Comp.”), Lieutenant Governor's office sent her an email containing the pp. 25, 115.1 In 2009, plaintiff stumbled across Excelsior Jersey board's formal decision and punishment. Comp. 28. College (“Excelsior” or “defendant”), an online college that Plaintiff does not know whether it was Vermont's Board of offered a program that, upon graduation, would qualify its Nursing (“the Vermont board”) or Excelsior who informed students to sit for an examination to become RNs. See id. the Jersey board that she did not have the requisite degree to become an RN. Id. at 28-29. In any event, plaintiff alleges that Jolly enrolled in Excelsior's nursing program in 2009, but defendant had reached out to several states’ nursing boards was ultimately dismissed without graduating on March 1, to proactively inform them that plaintiff was misrepresenting 2014 after failing a required course for the third time. Comp. herself as a graduate. Id. at 113. 115. For her part, however, plaintiff asserts that there was a technical error in her third test and she should have been On May 21, 2019, Jolly filed the present complaint in the permitted to take the test a fourth time. Id. Eastern District of Pennsylvania against Excelsior, the Jersey board, and the Vermont board. Dkt. 2. On May 24, 2019, Nevertheless, on March 5, 2018, absent both a degree from United States Magistrate Judge Joel H. Slomsky transferred Excelsior and any directive as to whether she would be the case to the Northern District of New York but dismissed permitted to take the failed course again, Jolly applied to plaintiff's claims against the state boards with prejudice for sit for the NCLEX-RN examination—apparently the required lack of subject matter jurisdiction. Dkt. 5. On May 11, test to become an RN—in Vermont. Comp. 25, 115. As part 2020, defendant moved to dismiss plaintiff's complaint under Federal Rule of Civil Procedure (“Rule”) 12(b)(6) for failure the Court to a docket entry in the Eastern District of New to state a claim. That motion, having been fully briefed, will | York. Though this means of citation is not a problem in a now be decided on the parties’ submissions without oral | vacuum, in this particular case the docket entry containing argument. the settlement agreement is sealed, and cannot be accessed through any available means other than requesting the District Court of the Eastern District of New York to unseal it. Il. LEGAL STANDARD “To survive a Rule 12(b)(6) motion to dismiss, the ‘[flactual *3 As it stands, there are two different interpretations of the allegations must be enough to ralse a right to relief above settlement release, and neither can be verified. By extension, the speculative level.’ ” Ginsburg v. City of Ithaca, 839 F. jt would be improper to take judicial notice of the effects Supp. 2d 537, 540 (N.D.N.Y. 2012) (citing = Bell Atl. Corp. of a release based purely on Excelsior's word when Jolly's Twombly, 550 U.S. 544, 555 (2007)). Instead, the complaint — iterpretation—as a pro se plaintiff—stands opposite to it, must contain sufficient factual matter that it presents a claim —_- especially in the context ofa Rule 12 motion. Accordingly, the Lu release cannot dispose of plaintiff's claims at this juncture, and to relief that is plausible on its face. Ashcroft v. Iqbal, 556 . □ . review of defendant's motion must pass on to the adequacy of USS. 662, 678 (2009). the complaint. In assessing the plausibility of the plaintiff's complaint, “the complaint is to be construed liberally, and all reasonable Jolly's complaint can be read to assert seven claims: (1) inferences must be drawn in the plaintiff's favor.” Ginsburg, disclosure of personal information; (II) violation of = 18 839 F. Supp. 2d at 540. Especiall laintiff must h upp ° . spon » apne om . me ave USC. § 242 «ls 242”); (II) conspiracy under 42 her submissions scrutinized with “special solicitude,” and ‘ □ they “must be ... interpreted to raise the strongest arguments —-U.S.C. § 1985 (“ © § 1985”); (IV) discrimination under 42 U.S.C. § 2000e (“Title VII”); Excelsior's violati f that they suggest.” |” Triestman v. BOP, F.3d 471, 47475 § 2000e (“Title VIN"), (V) Excelsior's violation 0 . attorney-client privilege; (VI) another Title VII claim; and (2d Cir. 2006) (cleaned up). : . . . (VID a defamation claim, which defendant correctly notes lies . a . . hidden in the “Analysis” section of the complaint, but which The complaint may be supported by “any written instrument . oa: . 4: _ must nevertheless be considered in light of plaintiff's pro se attached to it as an exhibit, materials incorporated in it by . status. reference, and documents that, although not incorporated by reference, are ‘integral’ to the complaint.” '" 17 Designs, Ine. Jolly's Count I claim for disclosure of personal information v. Old Navy, LLC, 647 F.3d 419, 422 (2d Cir. 2011) (citing _ lists several potential statutory and regulatory bases, spanning Au v. Morton, 380 F.3d 57, 67 (2d Cir. 2004)). federal and state law. First, plaintiff references 32 C.F.R. § 505.7 (“§ 505.7”). This regulation forms part of the Army Privacy Act Program, which regulates the disclosure of II. DISCUSSION personal information stored in the Army's system of records As an initial matter, Excelsior argues that Jolly’s claims are _ to other agencies and third parties. 7hundathil v. Lynch, 2016 barred by a settlement agreement she entered with defendant WL 5485123, at *7 (W.D. Okla. Sept. 29, 2016). Because in 2019. Defendant argues that in that agreement, plaintiff plaintiff does not allege at any point in her complaint that ceded all claims against it accruing before the date of the the records defendant apparently disclosed were stored in an release on March 26, 2019. For her part, plaintiff argues that © Army database, plaintiff cannot rely on § 505.7 to support her the release should not be extended to these unrelated claims. claim. It may be that Excelsior is correct, and the release broadly Second, Jolly refers to Vermont's Public Records, Privacy, ceded all of Jolly's rights to sue. But that question cannot and Electronic Access Handbook (“the Handbook”). Much as be answered on a motion to dismiss, not when the release the name suggests, the Handbook plaintiff refers to is simply itself is not available for review. To be sure, defendant has a reference guide to Vermont's policies regarding the listed cited to pages and paragraphs from the document, but those topics, among them the privacy of public records. There is are of little use when the Court cannot access the actual therefore similarly no authority stemming from the Handbook document. After all, in citing to the release, defendant referred to support a viable action against Excelsior. Moreover, the

allegations rooted in the Handbook are aimed exclusively at claim under Pm 1985 requires a plaintiff to allege four former defendant the Vermont board, without reference to . . . □□□ elements: (1) a conspiracy; (2) aimed at directly or indirectly the only remaining defendant. Thus, the Handbook cannot ee . plaintiff's clai depriving a person or class of persons of “the equal protection plains claim. of the laws, or of equal privileges and immunities under the □ laws”; (3) an act in furtherance of that conspiracy; and (4) a Third, Jolly relies on Vermont's Public Records Law, | □□ resulting injury to person or property, or else the deprivation V.S.A. §§ 315-20. Her reliance is, once again, misplaced. . . The i f that statute which bl of a right or privilege of a United States citizen. Dolan y. ¢ only portion of that statute which even arguably creates agily, 794 F.3d 290, 296 (2d Cir, 2015). The plaintiff an individual right of the sort plaintiff alleges is 1 V.S.A. § . . Sas □ . must also plausibly allege that the conspiracy is “motivated 317a(b), which states that “[a] custodian of public records . . □□□ : by some racial or perhaps otherwise class-based, invidious shall not destroy, give away, sell, discard, or damage any record or records in his or her charge[.]” Even assuming, but — discriminatory animus...” | Cine SK8, Inc. v. Town of of course not deciding, that this language afforded plaintiff Yenrietta, 507 F.3d 778, 791 (2d Cir. 2007). an actionable right, she could not assert that right against Excelsior, who can hardly be said to be a custodian of public Jolly alleges that Excelsior conspired with the Vermont records under the authority of Vermont's state legislature. and Jersey boards to smear her reputation and prevent her from becoming an RN because she is an African American *4 Fourth and finally, Jolly refers in her complaint to the © Woman. However, plaintiff's attempts to plausibly allege Pri Act of 1974 (“the Pri Act” pa, USC a racial or otherwise invidious component to defendant's Wwacy “Cr 0 ( ° rivacy ct"), SCS conduct fall well short of sufficiency. Plaintiff makes three 552a. Even that argument is unavailing, however, because the . . . . . allegations touching on race: (1) she is an African American Second Circuit has firmly held that the Privacy Act affords : □ woman; (2) the Vermont board's Program Manager for no such private right of action against anyone other than . . Nursing Assistants, rather than a program manager for a full a federal agency. Pennyfeather v. Tessler, 431 F.3d 54, 56 . □ . Cir. 2005). Accordinely. plaintiff h ded nursing program, called plaintiff on the phone to discuss bl ‘. ain std y; , am as not Pre ° hon her concerns with the NCLEX-RN examination; and (3) oo rae tbe tice, od Moncoves m orm ton, defendant's describing plaintiff as ineligible to sit for the and aim mus e ismisse - Moreover, even giving 147 EX_RN examination. Comp. at 25, 50, 55. due consideration to plaintiff's pro se status, no amount of fix soe ae, eee “ae ‘ □□ Jolly essentially argues that the Vermont board had the wrong me": Permannng P ani SO-amen woul ° uth , department call her because it assumed that an African and plaintiff's Count I disclosure of personal information . . American woman would not be a nurse, but would instead claim must be dismissed with prejudice. See = Cuoco vy. be a nurse's assistant. Similarly, plaintiff's being labelled Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). ineligible to sit for the NCLEX-RN examination is, she argues, a prejudicial denial of the opportunity for education Count II alleges that Excelsior violated Au § 242. The problem and advancement for African Americans. The road block that ws plaintiff runs into, however, is that there is an utter absence of with that allegation, however, 1s that § 242 1s a federal any factual basis to tie race to either action. criminal statute, which also does not provide plaintiff a private cause of action. robinson v. Overseas Military Jolly may genuinely believe that her receiving a call from the Sales Corp., 21 F.3d 502, 511 (2d Cir. 1994). Accordingly, TORS department and being labelled ineligible were racially su motivated slights, but her own beliefs do not provide a factual Jolly’s Count IT claim for violation of § 242 must also be basis sufficient to render those allegations plausible. □□□□□□□□□ dismissed, and because the lack of any private cause of action only assumes that she received the errant phone call because would render amending that claim futile, that dismissal must she is an African American; she does not allege that the caller be with prejudice. made reference to her race in any way. Nor does she refer to any portion of the call itself that led her to that conclusion. Count HI of Jolly's complaint alleges that Excelsior — The same is only more true for her being labelled ineligible; participated in a conspiracy to deprive her of her pare is nothing at all to suggest that her race played any part constitutional rights in violation of § 1985. A conspiracy 1m the label.

Id. Moreover, because her allegations rely on the school- bald assumptions are conclusory by definition, student dynamic, and not any employment relationship, no and cannot sufficiently support her allegation to overcome |= amendment to these claims would save them, and thus Excelsior's motion to dismiss. See Kirch vy. Liberty Media amendment would be futile. Accordingly, plaintiff's Title VII 449 F3d 388, 398 (2d Cir. 2006) (noting that — “!#™S must be dismissed with prejudice. assertions that lack any factual foundation are conclusory □ and insufficient to defeat motion to dismiss). Furthermore, As near as the Court can guess, Jolly's Count V attorney-client even if the Vermont board's conduct in having the allegedly privilege claim appeats to argue that Excelsior improperly wrong department head call plaintiff was racially motivated, disclosed information protected by that privilege. It must of the complaint provides no factual allegations to show any course be noted at the outset that the privilege is not called concerted effort on defendant's part to join in that allegedly school-student, and by extension it can be safely assumed that discriminatory conduct. defendant did not owe a duty to protect plaintiff's information as her attorney. As a result, the question becomes whether Without any concrete factual allegations that point to race as a plaintiff may state a claim against defendant for, she alleges, motivating factor in Excelsior's actions in informing various publishing materials which were protected by an attorney- nursing boards that Jolly did not complete its RN program, client privilege to her detriment. her Count II □□ 1985 claim must be dismissed. Pulizotto There can be no doubt that, even assuming that Excelsior v. McMahon, 406 F. Supp. 3d 277, 299-300 (S.D.N.Y. 2019) did precisely that, New York does not recognize a tort (dismissing a 1985 claim for inadequate factual matter 28ainst a third party to the attorney-client privilege who, tying race to acts taken in furtherance of alleged conspiracy). having intruded on privileged information, then broadcasts that information. Madden v. Creative Servs., Inc., 51 F.3d 11, Most fatal of all, however, is that Jolly cannot show that 12-13 (2d Cir. 1995). Excelsior's conduct at any point deprived her of a right or privilege. Plaintiff argues that she was denied the privilege of “© It 1s possible that Pennsylvania law, the state of Jolly’s becoming an RN, and that is certainly true. But she cannot residence, applies to this claim instead. The vast reaches of contend that she was entitled to that privilege when her °@S¢ law remain silent as to whether that state's law would complaint appends the Jersey board's disciplinary finding recognize a tort for a third-party breach of attorney-client that she was never qualified to become an RN and that her privilege. As a result, it would make little sense to create such licensure in that state was erroneous. atort out of whole cloth without any supporting Pennsylvania authority in the face of New York's compelling reasons not Moreover, at the risk of overplaying a theme, Jolly did not to create such a tort resting on judicial restraint. Madden y. contest that finding and waived her right toa hearing on Creative Servs., Inc., 646 N.E.2d 780, 783-85 (N.Y. 1995) that score. Accordingly, plaintiff cannot allege any set of (answering Second Circuit's certified question as to whether facts under which Excelsior denied her a privilege that she New York would recognize tort for intruder's breach of was never entitled to in the first place. Accordingly, her attorney-client privilege in the negative because possibility of unforeseen negative consequences loomed too large). § 1985 claim must be dismissed, and given the futility of allowing amendment when plaintiff cannot hope to allege Accordingly, there is no available cause of action on any deprivation of a privilege under these facts, that dismissal these facts under either potentially applicable body of state must be with prejudice. common law, and Jolly's claim for breach of attorney-client privilege must be dismissed. Once again, the absence of a Counts IV and VI of Jolly's complaint both allege source of law sufficient to support plaintiff's claim would discrimination in violation of Title VI. As Excelsior correctly render futile any attempt to amend her complaint to salvage notes, “the existence of an employer-employee relationship this claim. This claim must therefore also be dismissed with is a primary clement of Title VII claims.” = Gulino v. N_Y. prejudice. State Educ. Dep't, 460 F.3d 361, 370 (2d Cir. 2006). Because there are no allegations that plaintiff was ever defendant's _ Finally, as to Count VI, Jolly has used some language in her employee, her Title VII claims must both be dismissed. complaint to suggest that she raises a claim of defamation

against Excelsior. In deference to her pro se status, plaintiff's year suspension of her LPN license for misrepresenting that complaint will be read to assert that claim. she had graduated from Excelsior emphatically establishes that she did not, in fact, graduate. Comp. 102-04. Under New York law, defamation is “the making of a Accordingly, plaintiff cannot hope to plausibly establish false statement which tends to expose the plaintiff to public a claim of defamation when her complaint on several contempt, ridicule, aversion or disgrace, or induce an evil occasions establishes that the only harmful statement she opinion of hfer] in the minds of right-thinking persons, and alleges defendant made is uncontrovertibly true. Once again, to deprive hfer] of their friendly imtercourse in society.” she could not amend her complaint to cure this claim without flatly controverting several allegations in her initial Foster v. Churchill, 665 N.E.2d 153, 157 (N.Y. 1996). complaint, and thus amending the complaint would be futile. As a result, plaintiff's defamation claim, to whatever extent Under Pennsylvania law, by contrast, a plaintiff must she makes one, must be dismissed with prejudice. 4 prove seven elements: (1) a defamatory communication; (2) published by the defendant; (3) the communication applies to the plaintiff; (4) the communication's recipient [y¥. CONCLUSION understands it to have defamatory meaning; (5) the recipient *7 In sum and substance, Jolly claims that she also understands it to be about the plaintiff; (6) special harm — was improperly denied a chance to become an RN to the plaintiff; and (7) the abuse of a conditionally privileged — because Vermont's application system for the NCLEX-RN occasion. su Weaver v. Lancaster Newspapers, Inc.,926 A.2d examination insufficiently accommodated applicants secking 899, 903 (Pa. 2007). However, a defendant may rebut aclaim '© pursue alternative paths to become one other than of defamation by proving: (1) the defamatory communication 8taduating from a particular program. That may very well was true; (2) the publication was privileged: or (3) the be true. But that does not change that her allegations against allegedly defamatory comment dealt with a matter of public Excelsior amount to little more than its telling the truth that concern. Id. she never graduated from its version of that program. In the absence of any allegations more egregious than defendant's Suffice to say, under either state's defamation scheme, a honestly defending its reputation, plaintiff's complaint must defamation claim must be dismissed if it is clear from the dismissed. face of the complaint that the allegedly defamatory statement was true. See, e.g., Budbri LP y. Wilmington Tr. FSB, 2012 Therefore, it is WL 13015114, at *1 n.1 (E.D. Pa. Oct. 5, 2012) (dismissing defamation claim under Pennsylvania law because allegedly ORDERED THAT defamatory comment was true based on face of complaint). 1. Defendant's motion to dismiss under Rule 12(b)(6) is . . . GRANTED; and Jolly's allegations are essentially that Excelsior defamed her by falsely informing nursing boards across the nation that 2. Plaintiffs complaint is DISMISSED WITH she had not completed its RN program, despite her telling PREJUDICE. varied nursing boards that the converse was true. However, at no point in the complaint does she allege that she actually The Clerk of Court is directed to enter judgment accordingly graduated from defendant's RN program. To be sure,inplaces —_and close the case. she argues that she is eligible to become an RN, and that she has completed an “RN Theory” program, but she also ——-_[T Is SOORDERED. openly admits in her complaint that she never graduated from defendant's program. Comp. 31; see Comp. 60-61 (plaintiff noting that she “did not graduate” from defendant, but “did All Citations graduate from the [other] collegiate institutions”). Slip Copy, 2020 WL 3128535 In fact, then excerpt of Jolly's disciplinary hearing before the Jersey board, at which she, once again, accepted a five-

Footnotes

1 Pagination corresponds with CM/ECF. The facts are taken entirely from plaintiff's complaint and any and all documents attached to it, because for the purposes of a Rule 12(b)(6) motion, this Court must “accept as true the factual allegations of the complaint, and construe all reasonable inferences that can be drawn from the complaint in the light most favorable to the plaintiff[.]” = Anderson News, L.L.C. v. Am. Media, Inc., 680 F.3d 162, 185 (2d Cir. 2012). 2 According to the Jersey board's administrative decision, attached as an exhibit to the complaint, plaintiff had erroneously received an RN license in that state and had worked for several months in that role despite being errantly licensed. Comp. at 102--04. 3 Plaintiff argues that because her claims against defendant were not dismissed when the case was transferred, defendant's motion is improper. Although she is correct that dismissal is one potential remedy for a complaint brought in an improper venue, and also that Magistrate Judge Slomsky dismissed only her claims against the boards and declined to dismiss her claims against defendant upon his sua sponte review, neither fact amounts to an endorsement of her remaining claims. Similarly, neither fact precludes defendant's Rule 12(b) (6) motion. 4 To whatever extent the complaint could be read to assert a general claim of civil conspiracy, that claim must also be dismissed. Neither New York nor Pennsylvania recognize an independent tort for civil conspiracy. McCall v. Chesapeake Energy Corp., 509 F. App'x 62, 65 (2d Cir. 2013) (summary order) (noting that New York does not recognize a common law tort for civil conspiracy in the absence of an underlying tort for defendant to conspire to achieve); Accurso v. Infra-Red Servs., Inc., 23 F. Supp. 3d 494, 512 (E.D. Pa. 2014) (holding same for Pennsylvania). Therefore, because none of plaintiff's other claims survive, there is nothing remaining for plaintiff to allege that defendant conspired to do, and any civil conspiracy claim must also be dismissed.

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Procedure (“Rule”) 12. On May 11, 2020, defendant's last 2020 WL 3606374 day to respond to the complaint or make a Rule 12 motion, Only the Westlaw citation is currently available. defendant moved to dismiss plaintiff's complaint in its entirety United States District Court, N.D. New York. under Rule 12(b)(6). Maketa S. JOLLY, Plaintiff That motion was fully briefed by both parties, and granted v. on June 12, 2020 (“the June 12 decision”), dismissing the EXCELSIOR COLLEGE, Defendant. entirety of Jolly's complaint with prejudice. Jolly v. Excelsior College, 2020 WL 3128535 (N.D.N.Y. June 12, 2020). On 1:19-CV-1317 June 15, 2020, Jolly promptly moved the Court to reconsider | that decision under Local Rule of the Northern District of Signed 07/02/2020 New York (“Local Rule”) 7.1(g), to alter or amend the judgment under Rule 59(e), and to relieve her from the June Attorneys and Law Firms 12 decision's final judgment under Rule 60(b) on June 15, MAKETA S&S. JOLLY, Plaintiff pro se, 42 Kingston Terrace, 2020. That motion having been fully briefed, " will now be considered on the basis of the parties’ submissions without Aston, Pennsylvania 19014. oral argument. OF COUNSEL: LAURA B. JUFFA, ESQ., KAUFMAN BORGEEST & RYAN, LLP, Attorneys for defendant, 120 A movant faces a “strict” standard in attempting to prevail Broadway 14th Floor, New York, New York 10271. on a motion for reconsideration. Shrader v. CSX Ti ransp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). After all, these motions are not intended to allow a party a rehearing on the merits MEMORANDUM-DECISION and ORDER where they can levy facts and arguments that were available to them from the outset but that they did not advance. See id. DAVID N. HURD, United States District Judge As such, motions for reconsideration are an “extraordinary #1 On May 21, 2019, plaintiff Maketa Jolly (“Jolly” or remedy to be employed sparingly in the interests of finality and conservation of scarce judicial resources.” Montblanc- plaintiff’) filed a 115-page complaint in the Eastern District a. . . Simplo GmbH y. Colibri Corp., 739 F. Supp. 2d 143, 147 of Pennsylvania alleging that three defendants, among them (ED.N.Y. 2010) Excelsior College (“Excelsior” or “defendant”) interfered a with her ability ‘0 become a Registered Nurse (“RN”) by Thus, a prior ruling will only be reconsidered and vacated if: disclosing to nursing boards across the country that she did (1) there is an intervening change in the controlling law: (2) not graduate from defendant's RN program. On May 24, 2019, . □ ° United States Magistrate Judge Joel H. Slomsky streamlined new evidence not previously available comes to light; or (3) the complaint such that only defendant remained, and only reconsideration is necessary to remedy a clear error of law six claims remained against it: (I) disclosure of personal or to prevent manifest injustice. Delaney v. Selsky, 899 information: (II) violation of | 18 U.S.C. § 242; (II) § 1985. SUPP: 923, 925 (N.D.N.Y. 1995) (McAvoy, C-J.) (citing conspiracy; (IV and VI) Title VII claims; and (V) breach = Doe v. New York City Dep't of Soc. Servs., 709 F.2d 782, of attorney-client privilege. In the same opinion, Magistrate 789 (2d Cir. 1983), cert. denied, 464 U.S. 864 (1983)). Judge Slomsky found venue improper in the Eastern District of Pennsylvania and transferred the complaint to the Northern *2 Jolly's motion for reconsideration marshals several District of New York. attacks on the June 12 decision. First, plaintiff argues that Excelsior's motion to dismiss was untimely and therefore Upon the complaint's arrival here, Jolly encountered some — improperly granted. As noted above, defendant's deadline to difficulties in properly serving Excelsior. Nevertheless, on respond to the complaint or move to dismiss it was extended March 4, 2020, defendant executed a waiver of service. until May 11, 2020, the date upon which defendant moved. On April 14, 2020, defendant requested and received an = The motion was therefore timely. extension of the deadline to either respond to plaintiff's claim or else to move to dismiss under Federal Rule of Civil

Second, Jolly argues that the June 12 decision improperly Dean of Nursing, in her individual capacity. See □□ Hafer v. rvonsidere argument already found wanting by aaa Melo, 502 U.S. 21,31 (1991) (holding that state officials may u Be | omsky, as evidenced by his dec ining to ismiss sued in their individual capacity). Excelsior from the case. But the June 12 decision already addressed that concern, and noted that Magistrate Judge However, even going so far as to assume that Jolly could . hon. eiaees wee ait. plead that Pollard was a state official acting in her individual on thes sega += thus also mores no. Blaintiit's capacity in denying her from becoming an RN, she still could not salvage a Pe. 1983 claim. The closest her Third, Jolly contends that the Court failed to consider her civil | complaint comes to alleging a constitutional violation would rights claims, including an argued claim under USC be a procedural due process claim under the Fourteenth SC, ws § 1983, in disposing of her complaint. At the outset, neither © Amendment. See’ Kapps v. Wing, 404 F.3d 105, 112 2d Cir, Magistrate Judge Slomsky nor Excelsior were able to divine 2905). To stake out a viable due process claim, plaintiff would 1983 claim f h lai d plaintiff failed have to establish either a liberty or property interest protected a § claim from the compfamt, an antl ane by the Due Process Clause of the Fourteenth Amendment, to correct either of them. Of course, plaintiff is due some and that existing state procedures designed to protect her latitude as a pro se litigant, but if she can object to the Court's liberty and property interest from unwarranted interruption inability to read a viable Ms 1983 claim now, she just as are constitutionally inadequate. See id. easily could have, and by extension should have, objected to defendant's and Magistrate Judge Slomsky's similar readings *3 > Jolly might have been able to argue that her right to of the complaint. become an RN was a property interest worthy of due process protection, were it not required that a plaintiff asserting a In any case, even bending over backwards to read a pm due process claim demonstrate a legitimate entitlement to 1983 claim into the complaint, that claim would have been the property interest she seeks to protect. See = Quinn y. dismissed with prejudice as plainly meritless in any event. Syracuse Model Neighborhood Corp., 613 F.2d 438, 447-48 iu Section 1983 requires Jolly to prove that “a person acting (2d Cir. 1980) (evaluating plaintiff's legitimate entitlement under color of any state statute, regulation, custom or usage to cones employment as dispositive of plaintiff's due deprived” her of a constitutional right, but nowhere in the process claim). complaint does she allege that Excelsior acted with any state ws As discussed in the June 12 decision, Jolly included in her authority. Barrett v. Harwood, 189 F.3d 297, 301 (2d Cir. complaint a disciplinary hearing before the New Jersey Board 1999) (noting that Ps. 1983 claims require state action by of Nursing at which she did not contest that she was not defendant). entitled to become an RN, because she did not graduate from Excelsior's RN program. Jolly, 2020 WL 3128535, at *1-2. In Of course, Jolly could perhaps have amended the complaint ther words, either her graduation from defendant's program to allege that Excelsior is a state school and thus invested WS necessary to her becoming an RN, in which case plaintiff with state authority | But even then plaintiff would have cannot demonstrate legitimate entitlement based on the face ° f thi laint Ise h duation is not i to bring claims not against defendant, but some individual ° . © complaint, OF ese ° Bracuaton 38 no necessity, □ oo . which case defendant's telling boards of nursing that she did employee of defendant acting in her individual capacity, or . . . . . . not graduate did not impact her interest in becoming an RN at else her clatm would similarly need to be dismissed because . . defendant is an arm of the state, and therefore protected from all. In neither case can plaintiff hope to assemble a plausible , pu . iu § 1983 claim, and thus to whatever extent her complaint t by the El th Amendment. See, e.g.,' Dube v. Stat . y Soo FO sey ( sa cn 1990) (notin that could be read to state one, the complaint was nevertheless a : 8 properly dismissed. state universities are “an integral part of the government of hi itl El h A i ity). . the State” and = ed to Eleventh Amendment immunity) Fourth and finally, Jolly argues that she was not given a Perhaps plaintiff's § 1983 claims against defendant could fair opportunity to be heard, because some discovery matters thus be substituted as against Mary Lee Pollard, defendant's —_ were addressed before she could respond, and because she

was not permitted oral argument before the issuance of the Similarly, Jolly's motions under Rules 59(e) and 60 must also June 12 decision. As to the first point, as Excelsior notes, be denied. As discussed above in resolving plaintiff's Local United States Magistrate Judge Thérése Wiley Dancks ruled Rule 7.1(g) motion, she does not point to any “clear error on the discovery matters in plaintiff's favor. As to the second, of law” or “manifest injustice” that requires amendment to oral argument on motions is a rare practice, and plaintiff was the judgment in this case under Rule 59(e). = Munafo v. informed on June 9, 2020 that her motion would be taken on — Metro. Transp. Auth., 381 F.3d 99, 105 (2d Cir. 2004). Nor do submitted papers only. Moreover, plaintiff filed aresponse in —_ any of her arguments demonstrate a (1) mistake; (2) piece of opposition to defendant's motion, which was duly considered. newly discovered evidence; (3) fraud; (4) void portion of the Accordingly, plaintiff was not denied a fair opportunity to be — judgment; or (5) satisfaction of the judgment to merit relief heard, and that argument cannot support reconsideration of — under Rule 60(b). Plaintiff's motion for reconsideration is thus the June 12 decision. entirely meritless and must be denied. Her only recourse now is on appeal. In summary, upon close review of Jolly's complaint and the June 12 decision, the decision must stand. None of plaintiff's *4 Therefore, it is claims rested upon a viable legal framework, except for her § 1985 and Title VI claims, the latter of which was ORDERED THAT clearly improper because of a lack of any employer-employee relationship between plaintiff and Excelsior to sustain it. As Jolly's Motion for Reconsideration is DENIED. for plaintiffs § 1985 claim, the complaint only advanced a conclusory allegation of a racially-motivated conspiracy, with ITIS SO ORDERED. no plausible allegations of either racial animus or Excelsior's joining any conspiracy if one existed. Accordingly, plaintiff's motion for reconsideration under Local Rule 7.1(g) must be All Citations dented as meritless. Slip Copy, 2020 WL 3606374

1 Although the Court will not take judicial notice of the fact to belabor the point against a pro se litigant, defendant is a private school, and thus plaintiff could not possibly have hoped to amend her complaint to allege state action. EXCELSIOR COLLEGE, ABOUT EXCELSIOR COLLEGE https://www.excelsior.edu/ about/ (last visited July 1, 2020) (noting that defendant has been a private institution since April 1998).

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pauperis and must dismiss the complaint sua sponte if the 2012 WL 213831 court determines that the action “(i) is frivolous or malicious; Only the Westlaw citation is currently available. (ii) fails to state a claim on which relief may be granted; or NOT FOR PUBLICATION (iii) seeks monetary relief against a defendant who is immune United States District Court, from such relief.” When an in forma pauperis action is res ED. New York. judicata, it fails to state a claim upon which relief may be granted and thus Pa 1915(¢)(2)(B) compels its dismissal. Mary LOPEZ, Plaintiff, See Cieszkowska v. Gray Line New York, 295 F.3d 204 (2d Vv. Cir.2002). Because I find that the instant action is barred by JET BLUE AIRWAYS, Defendant. the doctrine of res judicata, I dismiss the complaint. No. 12—CV—0057. “Under the doctrine of res judicata, once a final judgment | has been entered on the merits of a case, that judgment will Jan. 24, 2012. bar any subsequent litigation by the same parties or those Attorneys and Law Firms in privity with them concerning the transaction, or series of connected transactions, out of which the [first] action Mary Lopez, Brooklyn, NY, pro se. arose.” Cieszkowska, 295 F.3d at 205 (quoting = Maharaj v. Bankamerica Corp., 128 F.3d 94, 97 (2d Cir.1997)) (internal quotation marks omitted) (alterations in original); accord ORDER in Waldman vy. Village of Kiryas Joel, 207 F.3d 105, 108 (2d JOHN GLEESON, District Judge. Cir.2000). In other words, later actions will be res judicata and subject to dismissal if “(1) the previous action involved *1 Plaintiff Mary Lopez, appearing pro se, files this informa _ an adjudication on the merits; (2) the previous action involved pauperis action asserting that Jet Blue Airways (“JetBlue”) _ the [parties] or those in privity with them; [and] (3) the claims violated her rights by failing to provide adequate wheelchair _ asserted in the subsequent action were, or could have been, assistance when she flew from New York to Puerto Rico on 4. . July 3, 2009. For the reasons discussed below, the complaint raised in the prior action. Pike v. Freeman, 266 F.3d 78, is dismissed with prejudice. 91 (2d Cir.2001) (quoting = Monahan v. N.Y.C. Dep't of Corr, 214 F.3d 275, 284-85 (2d Cir.2000)) (internal quotation marks omitted) (alterations in original). BACKGROUND The same facts Lopez alleges in the complaint before me According to Lopez's complaint and attached exhibits, Lopez form the basis for a prior complaint she filed against the same was scheduled to travel from New York, New York, to defendant, JetBlue, on April 6, 2010 in this Court. See Lopez Aguadilla, Puerto Rico, on July 3, 2009 on a JetBlue flight. % Jet Blue Airways, 10 Civ. 1552, Dkt. Entry 1. She thus Compl. Ex. 1. While she was at the airport, JetBlue failed to could have, and did, raise her Air Carrier Access Act claims timely provide her with a wheelchair, which caused Lopez in that complaint, and I dismissed that action on the merits physical and psychological injury. Compl. at 2. Reading for failure to state a claim upon which relief may be granted. her complaint broadly, Lopez asserts that JetBlue's actions S¢¢ Lopez v. Jet Blue Airways, No. 10 Civ. 1552, 2010 WL violated her rights under the Air Carrier Access Act of 1986, 3311428 (E.D.N.Y.2010), aff'd, 662 F.3d 593 (2d Cir.2011). The doctrine of res judicata thus squarely bars this action, and U.S.C. § 41705, and its regulations, 14 C.F.R. § 382 .95. □ I dismiss the complaint pursuant to § 1915(e)(2)(B).

DISCUSSION CONCLUSION Under 28 U.S.C. § 1915(e)(2)(B), a district court has an independent obligation to review a complaint filed in forma

*2 For the reasons provided herein, the complaint is purpose of an appeal. Coppedge v. United States, 369 U.S. dismissed with prejudice. Lopez is cautioned not to file 438, 444-45, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962). additional duplicative actions. So ordered. The Court certifies pursuant to Pog US.C. § 1915(a)(3) that any appeal from this Order would not be taken in good All Citations faith and therefore in forma pauperis status is denied for the Not Reported in F.Supp.2d, 2012 WL 213831 End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works.