Valerie Flores v. Ada James Place, also known as Passages

Opinion

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK _____________________________________________

VALERIE FLORES,

Plaintiff,

v. 1:26-CV-0123 (AMN/ML) ADA JAMES PLACE, also known as Passages,

Defendant. _____________________________________________

APPEARANCES: OF COUNSEL:

Valerie Flores Plaintiff, Pro Se Post Office Box 1110 ACP 5749 Albany, New York 12201

MIROSLAV LOVRIC, United States Magistrate Judge

ORDER and REPORT-RECOMMENDATION Plaintiff Valerie Flores (“Plaintiff”) filed this pro se complaint against Defendant Ada James Place (“Defendant”) alleging violations of her rights. (Dkt. No. 1.) Plaintiff did not pay the filing fee and seeks leave to proceed in forma pauperis (“IFP”). (Dkt. No. 15.) For the reasons set forth below, I (1) grant Plaintiff’s second amended IFP application, and (2) recommend that the Complaint be dismissed in its entirety without leave to amend. I. BACKGROUND Construed as liberally1 as possible, the Complaint alleges violations of Plaintiff’s rights by Defendant. (See generally Dkt. No. 1.) More specifically, the Complaint alleges that at an unspecified time she spoke on the

phone with an individual named “Kayla” who “denied” Plaintiff without a reason. (Dkt. No. 1 at 5.) Plaintiff alleges that the next day she spoke with a female who was “rude” and denied Plaintiff access to speak to the “director.” (Id.) Plaintiff alleges that she was denied services despite being on an address confidentiality program and thus, she was discriminated against “due to being a member of several protective classes.” (Dkt. No. 1 at 5.) Based on these factual allegations, Plaintiff appears to assert (1) a claim pursuant to 15 U.S.C. § 1692(d), and (2) a claim of harassment. (Dkt. No. 1 at 3; Dkt. No. 1, Attach. 1.) As relief, Plaintiff seeks $40,000 in damages. (Dkt. No. 1 at 4; Dkt. No. 1, Attach. 1.) II. PLAINTIFF’S SECOND AMENDED 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).2 After reviewing Plaintiff’s second

1 The court must interpret pro se complaints to raise the strongest arguments they suggest. Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). 2 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 amended IFP application (Dkt. No. 15), the Court finds that Plaintiff meets this standard.3 Therefore, Plaintiff’s second amended application to proceed IFP is granted.4 III. LEGAL STANDARD FOR 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

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).

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). 3 Plaintiff is a prolific filer; she is cautioned that proceeding IFP is a privilege, not an unqualified right. The continued filing of frivolous lawsuits may result in the denial of a request to proceed IFP in an action. 4 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. “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). IV. ANALYSIS In addressing the sufficiency of a plaintiff’s complaint, the court must construe her

pleadings liberally. Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008). Having reviewed Plaintiff’s Complaint with this principle in mind, I recommend that all causes of action be dismissed for two reasons. First, even construed with the “special solicitude” afforded to pro se pleadings, Triestman v. Federal Bureau of Prisons, 470 F.3d 471, 475 (2d Cir. 2006), the Complaint is woefully lacking factual allegations sufficient to plausibly suggest any cause of action. Plaintiff appears to assert that at some unspecified time, two individuals were rude to her over the phone and thus, she has been discriminated against. (See generally Dkt. No. 1.) Moreover, the Complaint alleges that one of the individuals who was rude to her on the phone is named Kayla and there is a Kayla who works at a post office “who might be involved in delayed mail issues.” (Dkt. No. 1 at 5.) These attenuated and fanciful allegations are wholly incredible “whether or not there are judicially noticeable facts available to contradict them.” Denton v. Hernandez, 504 U.S. 25, 32- 33 (1992); see Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998).

“Plaintiff's beliefs – however strongly [s]he may hold them – are not facts.” Morren v. New York Univ., 20-CV-10802, 2022 WL 1666918, at *18 (S.D.N.Y. Apr. 29, 2022) (citation omitted), report and recommendation adopted, 2022 WL 1665013 (S.D.N.Y. May 25, 2022). The undersigned finds that “because Plaintiff does not provide any plausible factual support for her claims, they rise to the level of irrational and must be dismissed as frivolous.” Moore v. Georgia, 24-CV-5545, 2024 WL 4149959, at *3 (S.D.N.Y. Sept. 11, 2024) (citing Kraft v. City of New York, 823 F. App’x 62, 64 (2d Cir. 2002) (summary order) (internal citations omitted) (holding that “the district court did not err in sua sponte dismissing the complaint as frivolous,” based on the plaintiff’s allegations that he had “been the subject of 24-hour, multi- jurisdictional surveillance by federal fusion centers and the New York State Intelligence Center,

which put a digital marker on him in order to collect his personal data and harass him”)); accord Moore v. Fox News, 24-CV-5470, 2024 WL 4635337, at *3 (S.D.N.Y. Oct. 30, 2024). As a result, I recommend that Plaintiff’s Complaint be dismissed as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). Second, in the alternative, I recommend that the Complaint be dismissed for failure to state a claim upon which relief may be granted. To state a claim under the Fair Debt Collection Practices Act (“FDCPA”) pursuant to 15 U.S.C. § 1692, “a plaintiff must demonstrate that: (1) the plaintiff is a person who was the object of efforts to collect a consumer debt; (2) the defendant is a debt collector as defined in the statute; and (3) the defendant has engaged in an act or omission in violation of the FDCPA.” Felberbaum v. Sequium Asset Solutions, 21-CV-9513, 2023 WL 167559, at *3 (S.D.N.Y. Jan. 11, 2023) (citing Cohen v. Ditech Fin. LLC, 15-CV-6828, 2017 WL 1134723, at *3 (E.D.N.Y. Mar. 24, 2017)). The Complaint fails to allege facts plausibly suggesting that (1) Plaintiff is a

person who was the object of efforts to collect a consumer debt, (2) Defendant is a debt collector, or (3) that Defendant engaged in an act or omission in violation of the FDCPA. (See generally Dkt. No. 1); Komatsu v. Urban Pathways, Inc., 22-CV-9080, 2023 WL 419699, at *9 (S.D.N.Y. Jan. 26, 2023) (citing 15 U.S.C. 1692e) (“In cases where the FDCPA applies, it prohibits deceptive and misleading practices by ‘debt collectors.’”). As a result, I recommend that Plaintiff’s FDCPA claim be dismissed for failure to state a claim upon which relief may be granted. To the extent that the Complaint is construed as alleging a discrimination claim, it fails to state a claim upon which relief may be granted. “Simply being a member of a protected class, without something more to link that status to the action in question, is not enough to raise a

reasonable inference of discriminatory animus.” Cole v. Board of Trustees of Northern Ill. Univ., 838 F.3d 888, 900 (7th Cir. 2016); see Karunakaran v. Borough of Manhattan Cmty. Coll., 18-CV-10723, 2022 WL 902370, at *3 (S.D.N.Y. Mar. 28, 2022) (quoting Littlejohn v. City of New York, 795 F.3d 297, 311 (2d Cir. 2015)) (“Although a plaintiff is not required to plead facts proving each element of a prima facie case of discrimination at the pleading stage, her allegations must provide ‘plausible support’ for a ‘minimal inference’ that the [defendant] was motivated by discriminatory intent.”); Canady v. Union 1199/SEIU, 527 F. Supp. 3d 515, 516 (W.D.N.Y. 2021) (“simply falling into a protected category is not enough”); Perry v. County of Westchester, 06-CV-3000, 2008 WL 11438085, at *17 (S.D.N.Y. Mar. 31, 2008) (“Plaintiff's membership in a protected class in and of itself does not establish discriminatory animus”). Having found that Plaintiff’s federal claims are subject to dismissal, I recommend that the Court decline to exercise jurisdiction over any state law claims. See 28 U.S.C. § 1367(c)(3)

(providing that a district court “may decline to exercise supplemental jurisdiction over [pendent state law claims] if . . . the district court has dismissed all claims over which it has original jurisdiction”); Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988) (“[I]n the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine—judicial economy, convenience, fairness, and comity—will point toward declining to exercise jurisdiction over the remaining state-law claims.”); Walker v. Time Life Films, Inc., 784 F.2d 44, 53 (2d Cir. 1986) (citing Kavit v. A.L. Stamm & Co., 491 F.2d 1176, 1180 (1974)) (holding that “federal courts, absent exceptional circumstances, should abstain from exercising pendent jurisdiction when federal claims in a case can be disposed of by summary judgment”).5

As a result, I recommend, in the alternative, that the Complaint be dismissed for failure to state a claim upon which relief may be granted. V. OPPORTUNITY TO AMEND Generally, a court should not dismiss claims contained in a complaint filed by a pro se litigant without granting leave to amend at least once “when a liberal reading of the complaint

5 In the alternative, New York does not recognize private causes of action for harassment and abuse, hence, I recommend that those claims be dismissed. Graham v. UMG Recordings, Inc., 806 F. Supp. 3d 454, 476 (S.D.N.Y. 2025) (“New York does not recognize a civil cause of action for harassment.”); Jones v. L3 Harris, 730 F. Supp. 3d 26, 29 (W.D.N.Y. 2024) (citing Robinson v. Williams, 22-CV-0982, 2023 WL 3352758, at *9 (N.D.N.Y. Jan. 12, 2023) (Lovric, M.J.), adopted 2023 WL 2986825 (N.D.N.Y. Apr. 18, 2023)) (“It is well-settled that ‘there is no private cause of action for stalking or general harm.’”). gives any indication that a valid claim might be stated.” Branum v. Clark, 927 F.2d 698, 704-05 (2d Cir. 1991); see also Fed. R. Civ. P. 15(a)(2) (“The court should freely give leave when justice so requires.”). An opportunity to amend is not required, however, where “the problem with [the plaintiff’s] causes of action is substantive” such that “better pleading will not cure it.”

Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); see also Cortec Indus. Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991) (“Of course, where a plaintiff is unable to allege any fact sufficient to support its claim, a complaint should be dismissed with prejudice.”). Stated differently, “[w]here it appears that granting leave to amend is unlikely to be productive, . . . it is not an abuse of discretion to deny leave to amend.” Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993); accord, Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *1 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.).6 Here, a better pleading could not cure the deficiencies identified with Plaintiff’s claims because there is “no indication in the Complaint that Plaintiff’s allegations against Defendant[] involve any debt, debt collectors, or debt collection practices. Together with the finding that

Plaintiff’s Complaint is frivolous and nonsensical, . . . weighs heavily in favor of concluding that any opportunity to amend would be futile.” Flores v. Smith, 25-CV-1838, 2026 WL 2606630, at *3 (N.D.N.Y. Sept. 3, 2026) (Nardacci, J.) (internal citation omitted). As a result, I recommend that the Court decline to grant Plaintiff leave to amend.

6 See also Carris v. First Student, Inc., 132 F. Supp. 3d 321, 340-41 n.1 (N.D.N.Y. 2015) (Suddaby, C.J.) (explaining that the standard set forth in Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 796 (2d Cir. 1999)—that the Court should grant leave to amend “unless the court can rule out any possibility, however unlikely it might be, that an amended complaint would be successful in stating a claim”—is likely not an accurate recitation of the governing law after Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)), rev’d on other grounds, 682 F. App’x 30. PLAINTIFF IS ADVISED THAT SHE SHOULD NOT SEEK TO FILE A MOTION TO AMEND HER COMPLAINT UNTIL UNITED STATES DISTRICT JUDGE NARDACCI RULES ON THIS COURT’S RECOMMENDATIONS WITH RESPECT TO PLAINTIFF’S COMPLAINT. ANY AMENDED COMPLAINT OR MOTION TO AMEND BEFORE JUDGE

NARDACCI’S DECISION WITH RESPECT TO THIS COURT’S RECOMMENDATIONS WILL BE STRICKEN AS PREMATURE AND WILL NOT BE CONSIDERED BY THE COURT. As noted below, however, Plaintiff may file objections to this Court’s recommendations. ACCORDINGLY, it is ORDERED that Plaintiff’s second amended application to proceed in forma pauperis (Dkt. No. 15) is GRANTED; and it is further respectfully RECOMMENDED that Plaintiff’s Complaint (Dkt. No. 1) be DISMISSED in its entirety without leave to amend pursuant to 28 U.S.C. § 1915(e)(2)(B); and it is further respectfully

ORDERED that the Clerk of the Court shall file a copy of this Order and Report- Recommendation on the docket of this case and serve a copy upon the parties in accordance with the local rules.7

7 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). NOTICE: 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. 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)).

Dated: September 9, 2026 Binghamton, New York

Miroslav Lovric U.S. Magistrate Judge

8 If you are proceeding pro se and served with this report, recommendation, and order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date that the report, recommendation, and order was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). Ifthe 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).

1997 WL 599355 amended complaint alleging the specific acts committed by Only the Westlaw citation is currently available. the individuals named as defendants which Brown claimed United States District Court, N.D. New York. violated his constitutional rights. Brown filed an amended complaint on March 21, 1996. In his amended complaint, Kenneth BROWN, Plaintiff, Brown alleged that defendants violated his rights under the v. Eighth and Fourteenth Amendments by failing to process Andrew PETERS, Warden, Watertown Correctional properly his interstate compact paperwork, resulting in Brown Facility; Joseph Williams, Warden, Lincoln Work– being imprisoned pursuant to a parole hold when in fact he had never violated the conditions of his parole. For a Release Center; Francis J. Herman, Senior Parole more complete statement of Brown's claims, see his amended Officer Interstate Bureau; T. Stanford, Senior Parole complaint. Dkt. No. 5. Officer; Deborah Stewart, Parole Officer; John Doe # 1, Parole Agent, Watertown Correctional Facility; John On August 5, 1996, defendants Peters and Williams made Doe # 2, Parole Agent, Lincoln Work Release Center; a motion to dismiss for failure to state a claim pursuant to Susan Bishop, Director of Interstate Compact, South Fed.R.Civ.P. 12(b)(6). Dkt. No. 13; Dkt. No. 14, at 2. On Carolina; Cecil Magee, Parole Officer, South Carolina; August 19, 1996, defendants Bishop, Magee, Barton, and Frank Barton, Parole Officer, South Carolina; John McMahan made a motion to dismiss the complaint against McMahan, Parole Officer, South Carolina, Defendants. them or, in the alternative, for summary judgment. Dkt. No. 20. On October 17, 1996, defendants Herman, Stewart, and No. Civ.A. 95CV1641RSPDS. Stanford made a motion to dismiss for failure to state a claim. Dkt. No 34. On April 17, 1996, Magistrate Judge Sept. 22, 1997. Scanlon recommended that all defendants' motions to dismiss be granted and that the complaint be dismissed. Dkt. No. 50. Attorneys and Law Firms On June 9, 1997, Brown filed objections to the Kenneth Brown, State Court Institute–Greene, Waynesburg, magistrate judge's report-recommendation, having been PA, plaintiff, pro se. granted additional time in which to do so. Dkt. No. 52. In Dennis C. Vacco, New York State Attorney General, The addition, Brown filed on June 9, 1997, a motion for leave to Capitol Albany, NY, for defendants Peters, Herman Stewart, file a second amended complaint and a copy of his proposed Doe # 1, Doe # 2, and Williams, Jeffrey M. Dvorin, Assistant amended complaint. Dkt. No. 53. I turn first to the last motion Attorney General, Carl N. Lundberg, Chief Legal Counsel, filed, Brown's motion for leave to amend his complaint a South Carolina Department of Probation, Columbia, SC, for second time. defendants Bishop, Magee, Barton, McMahan, and Stanford, Carl N. Lundberg, of Counsel. Brown seeks to file a second amended complaint “setting forth in detail the personal involvement of each defendant and how their acts of commission and omission served to DECISION AND ORDER deprive plaintiff of Constitutionally secured rights.” Dkt. No. 53. The district court has discretion whether to grant leave POOLER, J. to amend. Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir.1993). In exercising that discretion, the court *1 The above matter comes to me following a Report– should freely grant leave to amend when justice so requires. Recommendation by Magistrate Judge Daniel Scanlon, Jr., Fed.R.Civ.P. 15(a). However, the court need not grant leave duly filed on April 17, 1997. Following ten days from the to amend where it appears that amendment would prove to be service thereof, the Clerk has sent me the entire file, including unproductive or futile. Ruffolo, 987 F.2d at 131. any and all objections filed by the parties herein. Here, Brown moved to amend his complaint to add additional Plaintiff Kenneth Brown commenced this Section 1983 civil allegations against the named defendants. However, the rights action on November 17, 1995. On February 12, additional allegations fail to cure the deficiency which the absence of defendants' personal involvement in a to which specific, written objection has been made.” Brown's constitutional deprivation. Section 1983 imposes liability objections fail to address directly any of the analysis. upon an individual only when personal involvement of that Brown's objections state (1) that he has been deprived of individual subjects a person to deprivation of a federal right. his constitutional rights; (2) that he has stated a cause of See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 98 S.Ct. action; (3) that the court wrongly refused to appoint an 2018, 56 L.Ed.2d 611 (1978). A complaint is fatally defective attorney for him and wrongly stayed discovery pending the if it fails to allege personal involvement sufficient to establish outcome of these motions; (4) that he seeks to file an amended that a supervisor was “directly and personally responsible for complaint; (5) the standard of review for a Fed.R.Civ.P. 12(b) the purported unlawful conduct.” Alfaro Motors, Inc. v. Ward, (6) motion; (6) that he disagrees with the magistrate judge's 814 F.2d 883, 886 (2d Cir.1987). recommendation to grant defendants' motions because the allegations in his complaint, which he repeats, show that his *2 Brown's proposed amended complaint alleges in rights were violated; and (7) the text of the Fourteenth and conclusory fashion that defendants acted “in a grossly Eighth Amendments. negligent and concerted manner which breached their duties owed to Plaintiff and is the proximate cause of [the violation Even affording the objections the liberal reading required of plaintiff's constitutional rights].” Proposed Am. Compl., for pro se pleadings, I find that these objections fail to at 3. Brown continues in the same vein, stating that state any basis whatsoever, much less a specific one, for defendants owed duties to plaintiff to carry out their jobs in a the court not to adopt the magistrate judge's rulings. They professional manner and they failed to carry out those duties simply re-state the relief sought and the facts on which Brown appropriately. The complaint states that defendants held grounds his complaint and conclude that the magistrate specific responsibilities, such as checking for outstanding judge's conclusions are wrong. When the parties make only warrants, which if performed properly should have alerted frivolous, conclusive, or general objections, the court reviews them to a problem. However, nowhere does the complaint the report-recommendation for clear error. See Camardo v. set forth allegations that these defendants either participated General Motors Hourly–Rate Employees Pension Plan, 806 directly in any constitutional infraction or that they were even F.Supp. 380, 382 (W.D.N.Y.1992) (court need not consider aware of such an infraction. The proposed amended complaint objections which are frivolous, conclusive, or general and merely alleges that these defendants failed in performing their constitute a rehashing of the same arguments and positions supervisory and ministerial functions. “These bare assertions taken in original pleadings); Chambrier v. Leonardo, 1991 do not state a claim under 42 U.S.C. § 1983.” Smiley v. Davis, WL 44838, *1 (S.D.N.Y.) (restatement of allegations already 1988 WL 78306, *2 (S.D.N.Y.). before the court and assertion that valid constitutional claim exists insufficient to form specific objections); Schoolfield This plaintiff previously has had the opportunity to amend his v. Dep't of Correction, 1994 WL 119740, *2 (S.D.N.Y.) complaint for the same reason asserted here, to allege personal (objections stating that magistrate judge's decisions are involvement on the part of defendants. Brown's first amended wrong and unjust, and restating relief sought and facts complaint failed to accomplish that task, and it appears that upon which complaint grounded, are conclusory and do not even if allowed to amend again Brown would be unable to form specific basis for not adopting report-recommendation); make the requisite allegations with sufficient specificity to Vargas v. Keane, 1994 WL 693885, *1 (S.D.N.Y.) (general sustain his complaint. Consequently, I find that amendment objection that report does not address violation of petitioner's would be futile, and I deny Brown's motion for leave to amend constitutional rights is a general plea that report not be his complaint. adopted and cannot be treated as objection within the meaning of 28 U.S.C. § 636), aff'd, 86 F.3d 1273 (2d Cir.), cert. I turn now to the magistrate judge's report-recommendation denied, 519 U.S. 895, 117 S.Ct. 240, 136 L.Ed.2d 169 and defendants' motions. The magistrate judge recommends (U.S.1996). See also Scipio v. Keane, 1997 WL 375601, *1 that I grant defendants' motions and dismiss the complaint (1997) (when objections fail to address analysis directly, court as to all defendants. The report-recommendation clearly reviews report-recommendation for clear error); Fed.R.Civ.P. describes the grounds on which the magistrate judge 72(b), Advisory Comm. Note (when no specific, written recommends dismissal as to each defendant. Fed.R.Civ.P. objections filed, “court need only satisfy itself that there is 72(b) requires the district judge to make a de novo recommendation”). Correctional Facility in Watertown, New York. He applied for an interstate compact because he wanted to return to *3 Because Brown fails to make specific objections or South Carolina to live with his common law wife, Pamela provide any basis for his general objections, I review the Reid. During the application process, he was interviewed by report-recommendation for clear error. After careful review, the facility's parole officer, identified only as defendant John I conclude that the magistrate judge's report-recommendation Doe # 1. After signing the necessary papers, his application is well-reasoned and is not clearly erroneous.1 The was forwarded to defendant Andrew Peters, the facility's magistrate judge employed the proper standard, accurately superintendent, who reviewed, signed and forwarded the recited the facts, and reasonably applied the law to those facts. papers to the Interstate Bureau. Amend. Compl. at ¶¶ 1–2; Consequently, I adopt the report-recommendation. Exs. A, B. On or about January 15, 1992, while his compact was waiting for review at the Interstate Bureau, plaintiff was approved for CONCLUSION work release and sent to the Lincoln Work Release Center in New York City. While at the center, plaintiff spoke to a Because plaintiff's proposed amendment demonstrates that parole officer, defendant John Doe # 2, and told him that amendment would be futile, I deny plaintiff's motion for leave he was seeking a compact that would return him to South to amend his complaint. I approve the magistrate judge's Carolina upon his conditional release. Plaintiff claims the recommendation and grant defendants' motions to dismiss. parole officer told him that he would handle the necessary Plaintiff's complaint is dismissed in its entirety. paperwork, although the officer had had no experience with an interstate compact. Amend. Compl. at ¶¶ 3, 4. IT IS SO ORDERED. *4 Plaintiff, meanwhile, asked Reid whether any officials had contacted her in South Carolina regarding his prospective ORDER and REPORT–RECOMMENDATION residence in that state. Upon discovering no one had contacted her, plaintiff asked a lawyer he knew, Navron Ponds, to This matter was referred to the undersigned for report and inquire as to his compact status. In March, 1992, the recommendation by the Hon. Rosemary S. Pooler, United lawyer spoke with defendant Susan Bishop, who is the States District Judge, by Standing Order dated November director of the interstate compact program in South Carolina. 12, 1986. Currently before this Court are a number of Bishop allegedly told Ponds that plaintiff “was disapproved motions. Defendants Peters and Williams have filed a motion because there was a discrepancy about approving plaintiff['s] to dismiss (dkt.13); defendants Bishop, Magee, Barton and compact.” The “discrepancy” was the fact that plaintiff owed McMahan have filed a motion for summary judgment, or in the state of South Carolina eighty-six days of confinement the alternative to dismiss (dkt.20); and defendants Herman, from a previous sentence. Plaintiff claims Bishop told Ponds Stewart and Stanford also have filed a motion to dismiss to contact defendants Cecil Magee and Frank Barton, who (dkt.34). Plaintiff opposes these three motions (dkts.27, 29, worked for the South Carolina Parole Department. Sometime 33, 38). Defendants Bishop, Magee and McMahan have filed in March, 1992, Ponds made some calls to Barton and Magee. a motion to stay discovery (dkt.41) and plaintiff has filed a A verbal agreement was reached, and plaintiff, upon speaking motion to extend time (dkt.44) in which to file opposition to with Barton and Magee was told that his compact had been the latter motion for a stay of discovery. approved. He also was told that he should report to the South Carolina Department of Parole upon being released. Amend. The Court addresses these issues seriatim. Compl. at ¶¶ 5–7. Prior to leaving the Lincoln Work Release Center, plaintiff BACKGROUND processed paperwork related to his interstate compact. His paperwork was sent by Doe # 2 to defendant Joseph Williams, Plaintiff's amended complaint, which he has brought pursuant the superintendent of the center. Williams reviewed, signed to 42 U.S.C. § 1983, alleges the following facts. In and returned the paperwork to plaintiff. On May 1, 1992, Carolina. Three days later, he entered a South Carolina parole DISCUSSION office and promptly was arrested because of the eighty- six days of confinement that he owed the state. Plaintiff's A. Motion to Dismiss by Williams and Peters. paperwork was given to defendant John McMahan, a parole Williams and Peters have filed a motion to dismiss plaintiff's officer. Plaintiff claims that McMahan never returned this complaint pursuant to FED.R.CIV.P. 12(b)(6) on the grounds paperwork to him. On May 20, 1992, the state of South that it fails to state a claim upon which relief may be Carolina revoked plaintiff's parole and plaintiff was returned granted. In a Rule 12(b)(6) motion, all factual allegations to prison to serve the eighty-six days that he owed. When he in the complaint must be taken and construed in plaintiff's asked McMahan what would happen to his one year of parole favor. See LaBounty v. Adler, 933 F.2d 121, 122 (2d from New York, the officer allegedly told him that his New Cir.1991) (citing Ortiz v. Cornette, 867 F.2d 146, 149 (1989)). York parole would run concurrently with his South Carolina The Court's role is not to assess whether plaintiffs have parole, and that when he finished his South Carolina parole, raised questions of fact or demonstrated an entitlement he would not owe any parole whatsoever. Plaintiff served the to a judgment as a matter of law, as in a motion made eighty-six days he owed and was released on July 31, 1992. pursuant to FED.R.CIV.P. 56 for summary judgment, but Amend. Compl. at ¶¶ 8–10. rather to determine whether plaintiff's complaint sufficiently alleges all of the necessary legal elements to state a claim In February, 1993, plaintiff was arrested on robbery charges under the law. See Christopher v. Laidlaw Transit, Inc. in South Carolina. The charges ultimately were dropped, 899 F.Supp. 1224, 1226 (S.D.N.Y.1995), (citing Ricciuti v. but he apparently encountered some difficulties regarding New York City Transit Authority, 941 F.2d 119, 124 (2d this arrest as a result of a parole hold that New York state Cir.1991)). Factual allegations in brief or memoranda may not had placed upon him. Bishop's office told him that it had be considered. Fonte v. Board of Managers of Continental nothing to do with his parole hold and that any problem that Towers Condominium, 848 F.2d 24, 25 (2d Cir.1988). The he had was between him and the state of New York. He Court now turns to the issues presented. talked to authorities in Albany, New York regarding the parole hold, but was not successful in his efforts to have the hold Personal involvement of defendants in alleged constitutional removed. On September 30, 1993, after had been extradited deprivations is a prerequisite to an award of damages under to New York as a fugitive from justice, plaintiff was given a § 1983. Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994). preliminary hearing at Riker's Island, New York. The hearing As superintendents at New York State Correctional facilities, officer found no probable cause that plaintiff had violated any Williams and Peter may be found personally involved in the condition of parole. He was released. Amend. Compl. at ¶¶ alleged deprivation of plaintiff's constitutionally protected 11–14; Exs. C–J. rights by a showing that they: (1) directly participated in the infraction; (2) knew of the infraction, but failed to remedy *5 Plaintiff claims that he would not have suffered hardships the wrong; (3) created or continued a policy or custom under if his interstate compact had been handled correctly. He which unconstitutional practices occurred; or (4) were grossly alleges that defendant Deborah Stewart failed to follow up negligent in managing subordinates who caused unlawful and see whether plaintiff had arrived in South Carolina. If she conditions or events. Id., (quoting Williams v. Smith, 781 had, he argues, she would have discovered that he had been F.2d 319, 323–24 (2d Cir.1986)). Supervisory liability also arrested upon his arrival. He alleges that defendant Francis may be imposed against Williams or Peters with a showing Herman, a parole officer at the Interstate Bureau failed to of gross negligence or deliberate indifference to plaintiff's do his job by not investigating plaintiff's violation reports. constitutional rights. Id. Absent some personal involvement Amend. Compl. at ¶¶ 15–17; Exs. F–I. by Williams or Peters in the allegedly constitutionally infirm conduct of their subordinates, neither can be held liable under Plaintiff asserts that the foregoing amounts violations of his § 1983. Gill v. Mooney, 824 F.2d 192, 196 (2d Cir.1987). Eighth and Fourteenth Amendment rights, wherefore he both compensatory and declaratory relief. *6 Plaintiff has not provided any evidence linking either Williams or Peters to his alleged constitutional deprivations. All that plaintiff has alleged is that Williams and Peters, as superintendents, have reviewed and signed paperwork that pro se complaints are held to “less stringent standards alleging that he was the appointed Senior Parole Officer at than formal pleadings drafted by lawyers” for the purpose of a plaintiff's September 30, 1993 revocation hearing at Riker's motion to dismiss under Rule 12(b)(6), Haines v. Kerner, 404 Island, plaintiff does not detail how Stanford violated his U.S. 519, 520, 92 S.Ct. 594, 595–96, 30 L.Ed.2d 652 (1972), constitutional rights. Absent some personal involvement by plaintiff has not explained how the ministerial conduct of Stanford in the allegedly constitutionally infirm conduct of these two defendants was violative of the Constitution. Their his subordinates, he cannot be held liable under § 1983. Gill, motion to dimiss should be granted. 824 F.2d at 196. *7 Accordingly, the Court finds that Stanford, Stewart and B. Motion for Summary Judgment or to Dismiss by Bishop, Herman's motion to dismiss should be granted. Magee, Barton and McMahan. Bishop, Magee, Barton and McMahan have filed a motion for summary judgment, or in the alternative a motion to D. Plaintiff's “John Doe” Claims. dismiss. The Court will treat their motion as a motion to In so far as neither John Doe # 1 nor John Doe # 2 have been dismiss. “[C]omplaints relying on the civil rights statutes are identified and served in this matter, the Court does not have insufficient unless they contain some specific allegations of jurisdiction over these parties and does not reach the merits fact indicating a deprivation of rights, instead of a litany of plaintiff's claims against them. of general conclusions that shock but have no meaning.” Barr v. Adams, 810 F.2d 358, 363 (2d Cir.1987). Plaintiff has not alleged specifically how the conduct of these four E. Discovery Motions. defendants infringed upon his constitutional rights. In his Defendants Bishop, Magee and McMahan have filed a motion amended complaint, he contends that defendants violated the to stay discovery until the Court has made a ruling on their Constitution by “continuously breaching [[[their] duty” to motion to dismiss. Plaintiff has filed a motion to extend him. This language underscores the defect with the complaint: the time in which he may file opposition to defendants' if it alleges anything at all, it alleges that defendants were motion. Plaintiff, however, has filed his opposing response negligent in handling plaintiff's interstate compact and parole. (dkt.47), therefore his instant discovery motion is denied as To state a cognizable § 1983 claim, the prisoner must allege moot. In that the Court recommends granting defendants' actions or omissions sufficient to demonstrate deliberate motion to dismiss, discovery in this matter would be fruitless. indifference; mere negligence will not suffice. Hayes v. Accordingly, defendants' motion for a stay of discovery New York City Dept. of Corrections, 84 F.3d 614, 620 (2d pending the resolution of their motion to dismiss is granted. Cir.1996); Morales v. New York State Dep't of Corrections, 842 F.2d 27, 30 (2d Cir.1988) (section 1983 does not encompass a cause of action sounding in negligence). CONCLUSION The Court finds that the claims against Bishop, Magee, Barton WHEREFORE, based upon the foregoing analysis, it is and McMahan should be dismissed. hereby ORDERED, that plaintiff's motion to extend the time to file C. Motion to Dismiss by Herman, Stewart and Stanford. an opposing reply (dkt.44) is denied as moot; and it is further Plaintiff's claim against Stewart is that she failed to follow up and see whether plaintiff had arrived in South Carolina. ORDERED, that defendants Bishop, Magee and McMahan's Herman, he likewise asserts, failed to do his job because he motion to stay discovery until their motion to dismiss is did not investigate plaintiff's violation reports. Plaintiff has decided (dkt.41) is granted; and it is further not alleged how these actions run afoul of the Constitution; and again, these claims seem to be grounded in negligence, RECOMMENDED, that defendants Peters and Williams' which is not actionable under § 1983. Hayes, 84 F.3d at 620. motion to dismiss (dkt.13) be granted; and it is further Plaintiff's claim against Stanford must fail because his and McMahan's motion to dismiss (dkt.20) be granted; and it TO THIS REPORT WITHIN TEN (10) DAYS WILL is further PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993) (citing Small v. Secretary of RECOMMENDED, that defendants Herman, Stewart and Health and Human Services, 892 F.2d 15 (2d Cir.1989)); 28 Stanford's motion to dismiss (dkt.34) be granted. U.S.C. § 636(b)(1); FED.R.CIV.P. 6(a), 6(e) and 72. Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), All Citations the parties have ten (10) days within which to file written objections to the foregoing report. Such objections shall be Not Reported in F.Supp., 1997 WL 599355 Footnotes 1 I note, however, that the report-recommendation would survive even de novo review. End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2017 WL 1134723 A. Factual Allegations and State Foreclosure Action1 Only the Westlaw citation is currently available. On or about August 11, 2005, Cohen incurred a debt in United States District Court, E.D. New York. the form of a mortgage loan. Complaint, DE [1], ¶ 15. The mortgage was assigned on more than one occasion, the Aaron COHEN, on behalf of himself and last assignment occurring on June 10, 2013 to Green Tree all others similarly situated, Plaintiff, Servicing LLC (“Green Tree”). See Foreclosure Complaint v. ¶ 4, Declaration of Carol A. Lastorino (“Lastorino Decl.”), DITECH FINANCIAL LLC, and Rosicki, Ex. B, DE [25]. On March 11, 2015, Green Tree commenced a foreclosure proceeding in state court (the “Foreclosure Rosicki & Associates, P.C., Defendants. Action”) upon Plaintiff's default on his mortgage payments 15-CV-6828 in 2009. See Foreclosure Compl. ¶ 7. After the foreclosure action was filed, Green Tree changed its name to Ditech.2 Signed 03/24/2017 After the foreclosure complaint was filed, Plaintiff received Attorneys and Law Firms two additional documents in furtherance of the Foreclosure Action: a Certificate of Merit Pursuant to CPLR 3012-b LAW OFFICES OF SHIMSHON WEXLER, PC, BY: (“Certificate”) and a request for judicial intervention (“RJI”). Shimshon Wexler, Esq., 315 W. Ponce de Leon Ave., Suite Compl. ¶ 23. The Certificate is dated March 11, 2015, 250, Decatur, Georgia 30030, Attorney for Plaintiff. bears the same caption as the Foreclosure Complaint, and BALLARD SPAHR LLP, BY: Justin Angelo, Esq., 919 Third certifies that plaintiff Green Tree “is the creditor entitled to Avenue, Floor 37, New York, New York 10022, Attorneys for enforce rights” under the pertinent documents. Certificate ¶2, Defendant Ditech Financial LLC. Lastorino Decl. Ex. C. The RJI uses the same caption as the Foreclosure Complaint, indicates that the nature of the action RIVKIN RADLER, LLP, BY: Carol A. Lastorino, Esq., 926 is a Real Property—Mortgage Foreclosure, and purports RXR Plaza, Uniondale, New York 11556, Attorneys for to seek a “Residential Mortgage Foreclosure Settlement Defendant Rosicki, Rosicki & Associates, P.C. Conference.” Lastorino Decl. Ex. D. Green Tree is designated as the Plaintiff, but there is no language identifying it as the “creditor.” MEMORANDUM AND ORDER *2 In the Foreclosure Action, Green Tree seeks inter alia LEONARD D. WEXLER, UNITED STATES DISTRICT that the mortgaged premises be sold, that plaintiff be paid JUDGE monies owed from the proceeds of the sale, and that Aaron Cohen “be adjudged to pay any deficiency which may *1 Plaintiff Aaron Cohen (“Cohen” or “Plaintiff”) remain.” Foreclosure Compl., Wherefore Cl. commenced this action, on behalf of himself and as a putative class action, alleging violations of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., by B. Complaint in This Action defendants Ditech Financial LLC (“Ditech”) and Rosicki, The complaint in the case before this Court alleges a Rosicki & Associates, P.C. (“Rosicki”). Specifically, he seeks single cause of action for violations of two sections of the statutory damages, attorneys' fees, and costs for violations to § FDCPA. Under § 1692e, “[a] debt collector may not use 1692e and § 1692g(a)(2) of the FDCPA. Currently before the any false, deceptive, or misleading representation or means Court are each defendant's motion to dismiss pursuant Rule in connection with the collection of any debt.” 15 U.S.C. § 12 (b)(6) of the Federal Rules of Civil Procedure. See Rosicki 1692e. Section 1692g provides in pertinent part as follows: Motion, Docket Entry (“DE”) [24]; Ditech Motion, DE [29]. For the reasons set forth herein, both motions are granted and (a) Within five days after the initial communication with the complaint is dismissed. a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has ... (citing Twombly, 550 U.S. at 555). (2) the name of the creditor to whom the debt is owed III. DISCUSSION 15 U.S.C. § 1692g(a)(2). *3 The FDCPA was enacted “with the aim of eliminating abusive practices in the debt collection industry.” Jacobson The basis of Plaintiff's complaint is that the creditor to whom v. Healthcare Fin. Servs., Inc., 516 F.3d 85, 89 (2d Cir. the debt was owed at the time of the filing of the foreclosure 2008) (quoting 15 U.S.C. § 1692e). This legislation and its complaint was Fannie Mae, not Green Tree. Compl. ¶¶ 21-22. history “emphasize the intent of Congress to address the Plaintiff claims that defendants violated § 1692e in that they previously common and severe problem of abusive debt “falsely stated that Green Tree Loan Servicing LLC was the collection practices and to protect unsophisticated consumers creditor to whom the Plaintiff's debt ... was owed when, in from unscrupulous debt collection tactics.” Ehrich v. Credit fact, Green Tree Servicing, LLC was not the creditor to whom Prot. Ass'n, L.P., 891 F. Supp. 2d 414, 415 (E.D.N.Y. the Plaintiff's debt ... was owed.” Compl. ¶ 31. In addition, 2012) (citations omitted). The FDCPA “focuses on regulating after making an “initial communication,” neither Rosicki nor interactions between ‘debt collectors’ and ‘consumers.’ ” Green Tree advised Plaintiff of the “correct name of the Ellis v. Solomon and Solomon, P.C., 591 F.3d 130, 134 (2d creditor to whom the debt is owed.” Compl. ¶ 33. Cir. 2010). To establish a claim under the FDCPA, a plaintiff must establish that: (1) he is a person who was the object II. LEGAL STANDARDS of efforts to collect a consumer debt; (2) the defendant is a Defendants seek dismissal of the action pursuant to Rule “debt collector”; and (3) the defendant has engaged in some 12(b)(6) for failure to state a claim upon which relief can be act or omission in violation of the FDCPA's requirements. granted. The standards for analyzing a motion to dismiss are See Scaturro v. Northland Grp., Inc., 16-cv-1314, 2017 WL well-established. The court must accept the factual allegations 415900, at * (E.D.N.Y. Jan. 9, 2017). in the complaints as true and draw all reasonable inferences in favor of the plaintiff. Lundy v. Catholic Health Sys. of The threshold question here is whether the communications Long Island Inc., 711 F.3d 106, 113 (2d Cir. 2013) (citations at issue, filings during a foreclosure action, constitute an omitted). The court determines “whether the ‘well-pleaded attempt to collect a debt within the meaning of the FDCPA. factual allegations,’ assumed to be true, ‘plausibly give rise The FDCPA defines “debt” as “any obligation or alleged to an entitlement to relief.’ ” Hayden v. Paterson, 594 F.3d obligation of a consumer to pay money arising out of a 150, 161 (2d Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. transaction in which the money, property, insurance, or 662, 679 (2009)). “The plausibility standard is not akin to services which are the subject of the transaction are primarily a probability requirement, but it asks for more than a sheer for personal, family, or household purposes, whether or not possibility that a defendant has acted unlawfully.” Iqbal, 556 such obligation has been reduced to judgment.” 15 U.S.C. U.S at 678 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. § 1692a(5). While the note is a debt, the mortgage “ ‘is a 544, 556 (2007)). type of security interest with real property as the collateral,’ that a lender can take if a debtor does not fulfill a payment The determination of “whether a complaint states a plausible obligation; it ‘is not a promise to pay a debt.’ ” Hill v. DLJ claim for relief” is a “context-specific task that requires Mortg. Capital, Inc., 15-CV-3083, 2016 WL 5818540, at *7 the reviewing court to draw on its judicial experience and (E.D.N.Y. Sept. 30, 2016) (quoting Reese v. Ellis, Painter, common sense.” Iqbal, 556 U.S at 679. A pleading that does Ratterree & Adams, LLP, 678 F.3d 1211, 1216 (11th Cir. nothing more than recite bare legal conclusions, however, is 2012)). In other words, “[t]he note represents the primary insufficient to “unlock the doors of discovery.” Iqbal, 556 personal obligation of the mortgagor, and the mortgage is U.S. at 678-679; see also Twombly, 550 U.S. at 555 (holding merely the security for such obligation.” Copp v. Sands Point that a “formulaic recitation “formulaic recitation of cause Marina, Inc., 17 N.Y.2d 291, 293, 217 N.E.2d 654, 270 of action's elements will not do. Factual allegations must N.Y.S.2d 599 (1966). be enough to raise a right to relief above the speculative level.”). While Rule 8 does not require “detailed factual In recognition of this distinction, a holder of a note secured allegations,” it does require more than an “unadorned, by a mortgage has two remedies under New York law: “one see also Westnau Land Corp. v. U.S. Small Bus. Admin., 1 law. Indeed, such a result would violate New York's election F.3d 112, 115 (2d Cir. 1993) (“under New York law, a creditor of remedies framework. See Boyd v. Jarvis, 74 A.D.2d 937, is required to elect between the remedies of an action for 937, 426 N.Y.S.2d 142 (3rd Dep't 1980) (rejecting plaintiffs' money damages on a debt or an equitable action to foreclose attempt to commence a second action at law and noting a mortgage that secures the debt.”); Wells Fargo Bank, N.A. v. that as they had elected to proceed in equity by seeking Goans, 136 A.D.3d 709, 24 N.Y.S.3d 386 (2d Dep't N.Y. App. foreclosure, they should have sought a deficiency judgment in Div. 2016) (“Where a creditor holds both a debt instrument the foreclosure action); see also Wyoming Cty. Bank & Trust and a mortgage which is given to secure the debt, the creditor Co. v. Kiley, 75 A.D.2d 477, 481, 430 N.Y.S.2d 900, 903 (4th may elect either to sue at law to recover on the debt, or to sue Dep't 1980) (“when a mortgage-secured creditor commences in equity to foreclose on the mortgage.”). It is also clear that an equitable action to foreclose its mortgage, the action does under New York law, a mortgage foreclosure is an equitable not result in a ‘money judgment’ ”). remedy and an action seeking that relief is equitable in nature. See 4 B's Realty 1530 CR39, LLC v. Toscano, 818 F. Supp. 2d In any event, under the facts presented in this case, the Court 654, 659 (E.D.N.Y. 2011); see also Notey v. Darien Constr. finds that the purposes of the FDCPA are not furthered by Corp., 41 N.Y.2d 1055, 364 N.E.2d 833, 396 N.Y.S.2d 169 continuation of this action. Acknowledging the procedures (1977) (“An action to foreclose a mortgage is, of course, in and protections available in bankruptcy court, the Second equity”). Circuit has noted that given that “the FDCPA's purpose is to protect unsophisticated consumers from unscrupulous debt Courts in this Circuit that have considered whether actions collectors, that purpose is not implicated when a debtor taken within a foreclosure action constitute debt collection is instead protected by the court system and its officers.” “have held that ‘the enforcement of a security interest through Simmons v. Roundup Funding, LLC, 622 F.3d 93, (2d Cir. foreclosure proceedings that do not seek monetary judgments 2010) (internal quotation and citation omitted). Applying the against debtors is not debt collection for purposes of the same reasoning, a District Court in Connecticut analyzed FDCPA.’ ” Hill, 2016 WL 5818540, at *7 (quoting Boyd v. Connecticut law and determined that “mortgagors in a J.E. Robert Co., No. 05-CV-2455, 2013 WL 5436969, at *9 foreclosure proceeding likewise do not need protection from (E.D.N.Y. Sept. 27, 2013), aff'd on other grounds, 765 F.3d abusive collection methods that are covered under the FDCPA 123 (2d Cir. 2014)). This Court agrees with this reasoning. because the state foreclosure process is highly regulated and Here, Green Tree elected to commence an action to foreclose court controlled.” Derisme v. Hunt Leibert Jacobson P.C., 880 on the mortgage and the “communications” at issue were F. Supp. 2d 311, 327 (D. Conn. 2012). The same rationale is made in the context of enforcing its security interest. As such, applicable to foreclosure proceedings in New York courts. there was no attempt to enforce a debt actionable under the FDCPA. In the aftermath of the mortgage foreclosure crisis, New York passed the Foreclosure Prevention and Responsible Lending *4 Plaintiff argues that the Foreclosure Action does seek a Act which strengthened and added protections for borrowers money judgment on the “debt” because it seeks a deficiency in jeopardy of losing their homes. Stronger notice provisions judgment against Cohen in the event that the proceeds of were implemented, covering a variety of circumstances the sale of the mortgaged property are insufficient to satisfy and intending to protect borrowers. See RPAPL § 1303 the amount owed. Article 13 of the Real Property Actions (requiring “Help for Homeowners in Foreclosure” notice); and Proceedings Law (“RPAPL”) governs actions to foreclose RPAPL § 1304 (requiring additional notices in connection a mortgage in New York. It expressly provides that a final with subprime or non-traditional home loans); RPAPL § judgment in a foreclosure action may include a deficiency 1320 (requiring a special summons in actions to foreclose judgment against the person liable for the debt secured by a mortgage on private residences). Certain filings with the the mortgage “of the whole residue, or so much thereof as Superintendent of Financial Services are also required. See the court may determine to be just and equitable, of the debt RPAPL § 1306. The parties are now required to participate remaining unsatisfied, after a sale of the mortgaged property in mandatory, court-supervised settlement proceedings at and the application of the proceeds.” RPAPL § 1371(1). which they Eire required to “negotiate in good faith to Plaintiff cites no case law to support the inference that this reach a mutually agreeable resolution, including but not provision somehow affects the nature of the Foreclosure limited to a loan modification, short sale, deed in lieu of § 3408. The New York court system can amply protect is closed. borrowers from any allegedly unscrupulous actions taken in the foreclosure proceeding. Accordingly, the purposes of the SO ORDERED. FDCPA are not implicated, especially where all the allegedly impermissible conduct occurred within the context of the All Citations foreclosure proceeding. Not Reported in Fed. Supp., 2017 WL 1134723 IV. CONCLUSION Footnotes 1 The facts are taken from the Complaint and from documents related to the state court foreclosure action. See Curtis & Assocs., P.C. v. Law Offices of David M. Bushman, Esq., 758 F. Supp. 2d 153, 158 n.4 (E.D.N.Y. 2010) (In deciding a motion to dismiss, the Court may, in addition to the complaint, consider documents incorporated by reference into the complaint as well as “documents submitted by the parties which are matters of public record or which are deemed included in the Complaint.”), aff'd, 443 Fed.Appx. 582 (2d Cir. 2011). 2 Ditech notes that Green Tree changed its name to Ditech effective August 31, 2015, see Ditech Memorandum of Law in Support at n.1, DE [30], a change acknowledged by Plaintiff in the complaint. See Compl. ¶ 18 (“Green Tree (which is now Ditech) ...”). End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2023 WL 167559 debt and contracted with Defendant Sequium to collect the Only the Westlaw citation is currently available. debt originally owed to Citibank and now owed to Defendant United States District Court, S.D. New York. LVNV. (Id. at ¶¶ 19, 23.) Lazar FELBERBAUM, Plaintiff, On or around December 4, 2020, Defendants sent Plaintiff v. a collection letter (the “Letter”) regarding the alleged debt, SEQUIUM ASSET SOLUTIONS and which read as follows: LVNV Funding LLC, Defendants. This notice is being sent to you by a collection 21-cv-9513 (NSR) agency. Please be advised that LVNV Funding LLC, the Current Creditor-Debt Purchaser, has purchased the Signed January 11, 2023 account referenced above. Our records further indicate that the judgment that was awarded on 12/13/2013 remains Attorneys and Law Firms unresolved. This is the date on which the balance became due. Eliyahu R. Babad, Stein Saks, PLLC, Hackensack, NJ, for Plaintiff. (Id. at ¶ 24, Ex. A.) Brendan Hoffman Little, Lippes Mathias LLP, Buffalo, NY, The judgment referenced in the Letter totaled $27,212.94. (Id. for Defendants. at ¶ 25, Ex. A.) The Letter stated a “Total Due” in the amount of $27,212.94 (id. at ¶ 26.), but the Letter did not state whether interest was accruing on this amount (id. at ¶¶ 27–29.). In the OPINION & ORDER Letter, Defendants offered to settle the existing debt for 65% of the “Total Due.” (Id. at ¶ 45.) Defendants, however, did NELSON S. ROMÁN, United States District Judge: not (1) include a deadline by which Plaintiff had to accept the offer or (2) otherwise state that the offer would expire at a *1 Plaintiff Lazar Felberbaum (“Plaintiff”) commenced the later unspecified date. (Id. at ¶¶ 46–47.) instant action against Defendants Sequium Asset Solutions, LLC (“Defendant Sequium”) and LVNV Funding LLC Plaintiff alleges the “amount stated as due is ... false, (“Defendant LVNV”) (collectively, “Defendants”) alleging deceptive, misleading, and unfair.” (Id. at ¶ 39.) In particular, claims arising under the Fair Debt Collection Practices Plaintiff asserts that Defendants did not disclose that interest Act, 15 U.S.C. § 1692, et seq. (“FDCPA”). (Complaint was accruing on the balance at the New York post-judgment (“Compl.”) (ECF No. 1).) Before the Court is Defendants’ rate of “nine per centum per annum.” (Id. at ¶ 31.) As a motion pursuant to Federal Rule of Civil Procedure 12(c) result, the actual amount due was $49,051.33.1 (Id. at ¶ for judgment on the pleadings. For the following reasons, 33.) Plaintiff further avers that Defendants would “not have Defendants’ motion is GRANTED, and Plaintiff's Complaint allowed Plaintiff to accept the settlement offer at any time” is dismissed. and would “refuse to honor the offer” should Plaintiff accept. (Id. at ¶¶ 49, 57.) The offer, alleges Plaintiff, was “illusory” and “merely a collection tactic” “to coerce” Plaintiff into BACKGROUND paying the debt or to “sow ... confusion.” (Id. at ¶ 62–63.) The following facts are derived from the Complaint and are *2 Defendants answered the Complaint (ECF Nos. 9 & 11) accepted as true for the purposes of this motion except as and now move for judgment on the pleadings pursuant to Rule otherwise noted. 12(c) of the Federal Rules of Civil Procedure. (ECF No. 19.) Plaintiff is a New York resident who “allegedly” incurred a Defendants also move to strike Plaintiff's sur-reply (ECF debt to non-party Citibank, N.A. (“Citibank”), which arose No. 24), which Plaintiff styled as a “Notice of Supplemental primarily out of personal credit transactions. (Compl. at ¶¶ 7, Authority” and filed in opposition to Defendants’ Rule 12(c) 16.) The debt became “deliquen[t]” on January 15, 2009. (Id. Practices in Civil Cases, this Court nonetheless DENIES pleaded allows a court “to draw the reasonable inference that Defendant's Motion to Strike Plaintiff's Sur-Reply and deems the defendant is liable for the misconduct alleged.” Id. at 678. Plaintiff's sur-reply papers accepted for the purposes of adjudicating the present Rule 12(c) motion. DISCUSSION LEGAL STANDARDS *3 The purpose of the FDCPA is to “eliminate abusive debt collection practices by debt collectors, to insure that those Under Federal Rule of Civil Procedure 12(c), “[a]fter the debt collectors who refrain from using abusive debt collection pleadings are closed—but early enough not to delay trial—a practices are not competitively disadvantaged, and to promote party may move for judgment on the pleadings.” Fed. R. Civ. consistent State action to protect consumers against debt P. 12(c).2 “To survive a Rule 12(c) motion, the complaint collection abuses.” 15 U.S.C. § 1692e. To achieve this, the must contain sufficient factual matter to ‘state a claim to relief FDCPA imposes, “among other things, certain notice and that is plausible on its face.’ ” Graziano v. Pataki, 689 F.3d timing requirements on efforts by ‘debt collectors’ to recover 110, 114 (2d Cir. 2012) (quoting Bell Atl. Corp. v. Twombly, outstanding obligations.” Goldstein v. Hutton, Ingram, Yuzek, 550 U.S. 544, 570 (2007)). The standard for analyzing a Gainen, Carroll & Bertolotti, 374 F.3d 56, 58 (2d Cir. 2004). motion for judgment on the pleadings under Rule 12(c) is Section 1692k of the FDCPA provides that “any debt collector identical to the standard for a motion to dismiss for failure who fails to comply with any provision of [the FDCPA] with to state a claim under Rule 12(b)(6). Cleveland v. Caplaw respect to any person is liable to such person....” 15 U.S.C. Enters., 448 F.3d 518, 521 (2d Cir. 2006); see also Fed. R. § 1692k. Civ. P. 12(b)(6). Moreover, a single violation is sufficient to establish liability Under Rule 12(b)(6), the inquiry is whether the complaint under the FDCPA. Wiener v. Bloomfield, 901 F. Supp. “contain[s] sufficient factual matter, accepted as true, to ‘state 771, 778 (S.D.N.Y. 1995) (citing Clomon v. Jackson, 988 a claim to relief that is plausible on its face.’ ” Ashcroft F.2d 1314, 1318 (2d Cir. 1993)). “The court considers v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 the frequency or number of violations only in calculating U.S. at 570); accord Hayden v. Paterson, 594 F.3d 150, damages.” Id. (citing 15 U.S.C. § 1692k(b)(1)). “The court 160 (2d Cir. 2010). “While legal conclusions can provide may not, however, regardless of the number of violations, the framework of a complaint, they must be supported impose more than the $1,000 statutory penalty provided for by factual allegations.” Id. at 679. To survive a motion actions such as these in the absence of actual damages.” Id. to dismiss, a complaint must supply “factual allegations (citing 15 U.S.C. § 1692k(a)(2)(A)). sufficient ‘to raise a right to relief above the speculative level.’ ” ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d To state a claim under the FDCPA, a plaintiff must 87, 98 (2d Cir. 2007) (quoting Twombly, 550 U.S. at 555). demonstrate that: (1) the plaintiff is a person who was the The Court must take all material factual allegations as true object of efforts to collect a consumer debt; (2) the defendant and draw reasonable inferences in the non-moving party's is a debt collector as defined in the statute; and (3) the favor, but the Court is “ ‘not bound to accept as true a legal defendant has engaged in an act or omission in violation of conclusion couched as a factual allegation,’ ” or to credit the FDCPA.3 See Cohen v. Ditech Fin. LLC, 15-CV-6828, “mere conclusory statements” or “[t]hreadbare recitals of the 2017 WL 1134723, at *3 (E.D.N.Y. Mar. 24, 2017). Plaintiff elements of a cause of action.” Iqbal, 556 U.S. at 678 (quoting alleges that Defendants violated Sections 1692e, 1692e(2), Twombly, 550 U.S. at 555). Likewise, “where a conclusory e(10), 1692f, and 1692g of the FDCPA. See Compl. ¶¶ 79– allegation in the complaint is contradicted by a document 93. For the reasons articulated below, the Court dismisses all attached to the complaint, the document controls and the of Plaintiff's claims. allegation is not accepted as true.” Amidax Trading Grp. v. S.W.I.F.T. SCRL, 671 F.3d 140, 146–47 (2d Cir. 2011). In Section 1692e of the FDCPA prohibits a debt collector from determining whether a complaint states a plausible claim for making a “false, deceptive, or misleading representation.” 15 relief, a district court must consider the context and “draw on U.S.C. § 1692e. In particular, Section 1692e(2) prohibits “the false representation or deceptive means to collect or attempt settlement offer are not misled by the failure to disclose to collect any debt or to obtain information concerning a that interest is accruing because ... payment of the amount consumer.” “It is well established that the FDCPA imposes indicated in a collection notice would extinguish the debt.” strict liability on debt collectors,” meaning that Plaintiff “need Cortez v. Forster & Garbus, LLP, 999 F.3d 151, 155 (2d not prove that the prohibited conduct was intentional.” Lee Cir. 2021). In so doing, the Second Circuit concluded “a v. Kucker & Bruh, LLP, 958 F. Supp. 2d 524, 528 (S.D.N.Y. settlement offer need not enumerate the consequences of 2013); Ellis v. Solomon & Solomon, P.C., 591 F.3d 130, 135 failing to meet its deadline or rejecting it outright so long (2d Cir. 2010) (“To recover damages under the FDCPA, a as it clearly and accurately informs a debtor that payment consumer does not need to show intentional conduct on the of a specified sum by a specified date will satisfy the debt.” part of the debt collector.”); Russell v. Equifax A.R.S., 74 Id. at 156. At first glance, the Second Circuit's reasoning F.3d 30, 33 (2d Cir. 1996) (“Because the Act imposes strict in Cortez appears to control the result in the instant case; liability, a consumer need not show intentional conduct by the here, as in Cortez, Defendants offered to settle the debt for debt collector to be entitled to damages.”). a percentage of the amount shown as due and owing. If Plaintiff availed himself of Defendants’ settlement offer, his In the Second Circuit, two principles of statutory construction “payment ... would extinguish the debt.” Id. at 155. guide courts’ assessments of alleged violations of Section 1692e: (1) the FDCPA is liberally construed to effectuate its In his sur-reply, Plaintiff argues Cortez is inapplicable purpose of consumer protection, and (2) collection notices because the offer letter at issue in Cortez included a specific are analyzed from the perspective of the “least sophisticated date by which the debtor needed to avail himself of the offer. consumer.” Taylor v. Fin. Recovery Servs., 886 F.3d 212, (ECF No. 23-1 at 1–2.) In effect, including a specific date 214 (2d Cir. 2018) (internal citation omitted). The least in the offer notified the debtor as to how long the offer sophisticated consumer test is an objective one that “pays would remain open. By not including a specific date in the no attention to the circumstances of the particular debtor in Letter, Plaintiff contends the Defendants were employing question.” Easterling v. Collecto, Inc., 692 F.3d 229, 234 a “coercive collection tactic” in which Defendants would (2d Cir. 2012). Despite the name, the least sophisticated “not honor” Plaintiff's acceptance of their offer. (Id. at 2.) consumer is not wholly unsophisticated; they are “presumed Plaintiff alleges as much in the Complaint, asserting that to possess a rudimentary amount of information about the Defendants would not have honored Plaintiff's acceptance of world and a willingness to read a collection notice with some their settlement offer in 1, 5, 10, 20, or 50 years. (Compl. at ¶¶ care.” Kolbasyuk v. Capital Mgmt. Servs. LP, 918 F.3d 236, 49–54.) In other words, Plaintiff is concerned he will pay the 239 (2d Cir. 2019) (internal quotations and citation omitted). settlement amount and then later find out Defendants (or their Applying the standard of the least sophisticated consumer, successors) have pocketed the payment without discharging a debt collector's representation is misleading or deceptive Plaintiff's debt. (See id. at ¶¶ 57–63.) Plaintiff concludes “if it is ‘open to more than one reasonable interpretation, Defendants’ offer is “illusory” (id. at ¶ 62), and thus the Letter at least one of which is inaccurate.’ ” Avila v. Riexinger “violates the FDCPA.” (ECF No. 23-1 at 2; see generally & Assocs., LLC, 817 F.3d 72, 75 (2d Cir. 2016) (quoting Compl.) Clomon v. Jackson, 988 F.2d 1314, 1319 (2d Cir. 1993)). There is also a materiality requirement, where courts focus Plaintiff is incorrect. The Second Circuit in Cortez did not on “whether the false statement would frustrate a consumer's establish a bright line rule that every settlement offer must ability to intelligently choose his or her response.” Cohen v. include a specific deadline for acceptance. The Cortez Court Rosicki, Rosicki & Assocs., P.C., 897 F.3d 75, 86 (2d Cir. was not concerned with whether the offer included a specific 2018) (“[M]ere technical falsehoods that mislead no one are acceptance date; instead, it was concerned with whether the immaterial and consequently not actionable under § 1692e.”) settlement offer would mislead a debtor because “the offer (internal quotations and citations omitted). set forth a payment deadline but failed to disclose whether interest or fees would accrue if payment were tendered after *4 Before this Court is a narrow question: whether a debt the deadline.” Cortez, 999 F.3d at 156 (emphasis added). collector violates the FDCPA when it fails to state that the Ultimately, the Court reasoned that a settlement offer “need interest clock is (or is not) running when offering to settle a not enumerate” post-deadline interest and fees so long as the debt for a sum certain. The Second Circuit recently addressed offer “clearly and accurately informs a debtor that payment Id. Put differently, so long as the offer has not lapsed and Contracts § 42 (1981)). Because Defendants cannot revoke a debtor is entitled to pay a specified sum to satisfy a debt, the offer without first giving Plaintiff notice of their intent a debt collector is not bound to “anticipate every potential to do so, the Letter is not misleading. In fact, the Letter collateral consequence that could arise in connection with the “clearly states that the holder of the debt will accept payment payment or nonpayment of a debt.” See id.; Avila v. Riexinger of the amount set forth in full satisfaction of the debt if & Assocs., LLC, 817 F.3d 72, 77 (2d Cir. 2016) (“We hold that payment is made by a specified date,”—here any date prior a debt collector will not be subject to liability under Section to Defendants giving notice of their intent to revoke the offer. 1692e for failing to disclose that the consumer's balance may See Avila, 817 F.3d at 77; see also Weiss v. Sequium Asset increase due to interest and fees if the collection notice ... Sols., LLC, No. 21-CV-218(EK)(TAM), 2022 WL 1046260, clearly states that the holder of the debt will accept payment of at *3 (E.D.N.Y. Apr. 7, 2022) (“Indeed, the open-ended offer the amount set forth in full satisfaction of the debt if payment from the Defendants was more generous to [Plaintiff] than the is made by a specified date.”); Altman v. J.C. Christensen & defined expiration in Cortez, in that it gave [Plaintiff] longer Assocs., Inc., 786 F.3d 191, 194 (2d Cir. 2015) (“The Letter than Mr. Cortez was afforded to accept the settlement offer.”). at issue here plainly states that the percentage saved is ‘on In sum, Defendants’ offer remains open, and Plaintiff is still your outstanding account balance.’ The fact that a debtor entitled to pay $27,212.94—a sum certain—to extinguish all may then have to pay tax on the amount saved is simply not debts associated with his account. deceptive in the context of what the savings are on a debtor's outstanding account balance.”) (internal quotations omitted); Plaintiff's claim under Section 1692e fails. So too do see also Taylor v. Fin. Recovery Servs., Inc., 886 F.3d 212, Plaintiff's claims under Sections 1692f and 1692g. Section 215 (2d Cir. 2018) (“Construing the FDCPA in light of its 1692f prohibits a debt collector from using “unfair consumer protection purpose, we hold that a collection notice or unconscionable means to collect or attempt any that fails to disclose that interest and fees are not currently debt.” “Unconscionable” here means “shockingly unjust accruing on a debt is not misleading within the meaning of or unfair” or “affronting the sense of justice, decency, or Section 1692e.”). reasonableness.” Gallego v. Northland Group, Inc., 814 F.3d 123, 127–28 (2d Cir. 2016). Meanwhile, Section 1692g *5 Here, Defendants’ offer remains open, and as a result, requires Defendants to state “the amount of the debt.” For Defendants have no present duty to inform Plaintiff of the the reasons stated above, Plaintiff's allegations fail to show amount of interest due on the account.4 Plaintiff does not Defendants’ collection notice containing an open offer— allege the settlement offer is closed at present. Instead, which has remained open for over two years and settles Plaintiff speculates that Defendants, who “retain[ ] the right Plaintiff's debt interest-free at a sum certain—is “[s]hockingly to rescind the settlement offer at any time,” “would not have unjust or unfair,” or “affronting the sense of justice, decency, allowed Plaintiff to accept the settlement offer.” (Compl. at or reasonableness.” Id. Accordingly, Defendants’ Letter does ¶¶ 48–61.) Plaintiff's allegations, however, are speculative not violate Section 1692f. and incorrect as a matter of law. Should Plaintiff accept Defendants’ offer by paying the specified sum, Defendants Insofar as Defendants’ offer remains open and represents cannot then revoke their offer.5 See Altman v. Zwicker & the sum certain owed by Plaintiff to extinguish the debt, Defendants also abide by the requirements of Section 1692g. Assocs., P.C., No. 20 CV 6622 (VB), 2021 WL 3774120, See Weiss, 2022 WL 1046260, at *4 (E.D.N.Y. Apr. 7, at *4 (S.D.N.Y. Aug. 25, 2021) (“In other words, defendant 2022) (finding Defendants “comport[ed]” with requirements could not have withdrawn the offer of sending an application of Section 1692g where Defendants extended an open offer if the consumer paid the allegedly outstanding debt without for Plaintiff to pay a specified amount to extinguish Plaintiff's communicating such withdrawal to the consumer.”). Until debt). such time as Plaintiff accepts Defendants’ offer by paying the specified sum, Defendants may revoke the offer, but only if they first give unambiguous notice of revocation to Plaintiff. See, e.g., Cumis Ins. Soc., Inc. v. Citibank, N.A., CONCLUSION 921 F. Supp. 1100, 1106 (S.D.N.Y. 1996) (“A revocation is a clear manifestation of an intent not to perform, and judgment on the pleadings is GRANTED. Defendants’ All Citations motion to strike Plaintiff's sur-reply is DENIED. Not Reported in Fed. Supp., 2023 WL 167559

Footnotes

1 This estimated balance represents the accrued interest as of November 17, 2021, when Plaintiff filed the Complaint. (Compl. at ¶ 33.) 2 Defendant Sequium attaches two exhibits to its answer. (See ECF Nos. 9-1 (Declaration of Shaun Ertischek) & 9-2 (Declaration of Patricia Sexton).) Because Plaintiff had no notice of the exhibits prior to their filing, this Court declines to consider them in adjudicating the present 12(c) motion. See L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 422 (2d Cir. 2011) (citing Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 44 (2d Cir. 1991) (“Plaintiffs’ failure to include matters of which as pleaders they had notice and which were integral to their claim—and that they apparently most wanted to avoid—may not serve as a means of forestalling the district court's decision on [a 12(b)(6)] motion.”) (emphasis added)). 3 Plaintiff adequately alleges the first two requirements. (See Compl. at ¶¶ 8–13, 23.) 4 Defendants’ duty to report interest attaches when (1) Defendants revoke the open offer to accept payment of a sum certain to extinguish the debt, and (2) Defendants indeed charge interest on the principal balance. See Avila, 817 F.3d at 76 (“Because the statement of an amount due, without notice that the amount is already increasing due to accruing interest or other charges, can mislead the least sophisticated consumer into believing that payment of the amount stated will clear her account, we hold that the FDCPA requires debt collectors, when they notify consumers of their account balance, to disclose that the balance may increase due to interest and fees.”). In any event, it appears Defendants are estopped from charging interest on the balance-to-date. (See ECF No. 9-1 (Declaration of Shaun Ertischek) & 9-2 (Declaration of Patricia Sexton).) 5 Plaintiff alleges Defendant Sequium acts “on behalf of Defendant LVNV.” (See Compl. at ¶ 23.) As such, Defendant LVNV is bound to honor the contract proposed to Plaintiff by Defendant Sequium on Defendant LVNV's behalf. See, e.g., Minskoff v. Am. Exp. Travel Related Servs. Co., 98 F.3d 703, 708 (2d Cir. 1996) (“Under general principles of agency, the authority of an agent is the power of the agent to do an act or to conduct a transaction on account of the principal which, with respect to the principal, he is privileged to do because of the principal's manifestations to him.”) (internal quotations omitted). End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2022 WL 902370 See Doc. 45. On February 12, 2021, the Court granted Only the Westlaw citation is currently available. Defendants’ motion, dismissing Karunakaran's federal claims United States District Court, S.D. New York. without prejudice to replead, and declining to exercise supplemental jurisdiction over Karunakaran's NYSHRL and Chitra KARUNAKARAN, Plaintiff, NYCHRL claims. See Doc. 55. On March 26 and 27, v. 2021, Karunakaran's counsel filed letter motions seeking to BOROUGH OF MANHATTAN COMMUNITY withdraw. See Docs. 57-58. The Court granted counsel's COLLEGE, City University of New York, Antonio requests to withdraw. See Doc. 59. Perez, Karin Wilks, Sangeeta Bishop, Rifat Salam, On April 30, 2021, Karunakaran, again proceeding pro se, Antionette McKain, Robert Diaz, Ian Wentworth, filed a second amended complaint (“SAC”). See Doc. 62. Michael Hutmaker, and Marva Craig, Defendants. Defendants now move to dismiss the SAC pursuant to Federal 18 Civ. 10723 (ER) Rule of Civil Procedure 12(b)(6). For the reasons discussed below, the motion is GRANTED. Signed 03/28/2022 I. BACKGROUND Attorneys and Law Firms Karunakaran, a 75-year-old Indian woman, was employed by Chitra Karunakaran, New York, NY, Pro Se. CUNY at BMCC for approximately 20 years as a professor of psychology and sociology. Doc. 62 ¶¶ 13, 37. Karunakaran Jack Kevin Shaffer, IRS Office of Chief Counsel, New York, alleges that on February 27, 2018, a student (the “Student”) in NY, for Defendants Antonio Perez, Sangeeta Bishop, Rifat her class became verbally and physically aggressive towards Salam, Antionette McKain, Robert Diaz, Ian Wentworth, her and disrupted class. Id. ¶ 41. Specifically, Karunakaran Borough of Manhattan Community College, City University alleges that the Student told her, “You suck. You don't of New York, Karin Wilks, Michael Hutmaker, Marva Craig. know anything.” Id. ¶ 42. According to Karunakaran, the Student repeated these comments on two other occasions. Id. Karunakaran argues that the Student's behavior was OPINION AND ORDER racially motivated because, when she had previously taught the Student in online classes, the Student had not been Ramos, D.J.: disruptive. Id. Karunakaran also argues that the Student relied on “prevailing racialized stereotypes ... about Asians” and *1 Chitra Karunakaran, who was a Professor at the Borough assumed Karunakaran would remain silent “in the face of her of Manhattan Community College (“BMCC”), which is part mocking verbal abuse” and would not confront her or call of the City University of New York (“CUNY”), brings this security. Id. at 23. action against CUNY, BMCC, and several current and former employees of BMCC1 (collectively, the “Defendants”), Karunakaran alleges she complained to Defendants about for violation of Title VII of the Civil Rights Act of the Student's behavior, and, in particular, that in emails to 1964 (“Title VII”), the Age Discrimination in Employment Defendants, she offered to speak with the Student, suggested Act (“ADEA”), the New York State Human Rights Law that the Student take her class online, and requested that (“NYSHRL”), and the New York City Human Rights Law BMCC's Office of Student Affairs remove the Student (“NYCHRL”). See Doc. 62. In particular, Karunakaran from her class. Id. ¶¶ 42, 43. According to Karunakaran, alleges that Defendants discriminated against her on the basis Defendants did not respond to her emails and did not of her race, national origin, and age, and retaliated against her. otherwise intervene to address the Student's behavior. Id. See id. Specifically, Karunakaran alleges Defendant Ian Wentworth, who at the time worked in the Office of Student Affairs, took Karunakaran, proceeding pro se, first filed her complaint no action in response to the Student's behavior and in so doing on November 15, 2018. See Doc. 2. On September 6, allowed the behavior to re-occur. Id. ¶ 43. 2019, after retaining counsel, Karunakaran filed an amended “A Hostile Work Environment,” with Defendant Antonio As stated above, Karunakaran filed a pro se complaint in this Perez, who was at the time President of BMCC. Id. ¶¶ Court on November 15, 2018. Doc. 2. With the assistance 18, 49; Doc. 2 at 19. In her complaint, Karunakaran of counsel, she filed an FAC on September 6, 2019. Doc. alleged that BMCC maintained a “covert, ad hoc/post hoc 7. Defendants moved to dismiss the FAC on May 7, 2020, mode of organizational dysfunction resulting in a generally and the Court granted Defendants’ motion on February unchallenged racialized, ageist hostile work environment for 12, 2021, dismissing Karunakaran's federal claims without contingent academic labor.” Doc. 2 at 19. prejudice to replead, and declining to exercise supplemental jurisdiction over Karunakaran's NYSHRL and NYCHRL Karunakaran alleges that on March 27, 2018, the Student, claims. See Docs. 45, 55. On April 30, 2021, Karunakaran after learning she had failed the midterm, tried to grab papers —again proceeding pro se—filed the instant complaint., and other materials from her and ran from her office. Doc. alleging substantially the same facts she alleged in her FAC. 62 ¶ 45. Karunakaran alleges she continued to complain to Defendants about the Student's conduct but, as before, they took no action. Id. ¶ 46. Karunakaran argues that Defendants, II. LEGAL STANDARD in “completely disregarding their job responsibilities ... and When ruling on a motion to dismiss pursuant to Rule 12(b) at no point attempting to remedy the ongoing and dangerous (6), district courts are required to accept as true all factual situation caused by [the] Student,” discriminated against her allegations in the complaint and to draw all reasonable on the basis of her race, national origin, and age. Id. ¶ 47. inferences in the plaintiff's favor. Walker v. Schult, 717 F.3d 119, 124 (2d Cir. 2013). However, this requirement does Karunakaran also alleges that she participated in various not apply to legal conclusions, bare assertions, or conclusory whistleblowing and union activities throughout her tenure, id. allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678, 681 (2009) ¶¶ 40, 52, and lists a number of examples of these activities. (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Id. at 50. Specifically, Karunakaran alleges that she emailed In order to satisfy the pleading standard set forth in Rule 8, Perez to encourage him to program every department printer a complaint must contain sufficient factual matter to state to print double-sided; she asked Perez why online classes a claim for relief that is plausible on its face. Iqbal, 556 could not be taught through “Peer faculty mentoring;” she U.S. at 678 (citing Twombly, 550 U.S. at 570). Accordingly, asked Defendant Sangeeta Bishop whether she could serve on a plaintiff is required to support her claims with sufficient an equity and inclusion task force but was told that adjunct factual allegations to show “more than a sheer possibility that professors were not included; she asked whether faculty a defendant has acted unlawfully.” Id. “Where a complaint needed to include attendance information in their syllabi; she pleads facts that are merely consistent with a defendant's complained about Defendants’ failure to manage the Student's liability, it stops short of the line between possibility and conduct; and she asked why hard copies of mail had not been plausibility of entitlement to relief.” Id. (quoting Twombly, delivered to BMCC's uptown campus. Id. at 50-51. 550 U.S. at 557) (internal quotation marks omitted). On May 11, 2018, Karunakaran was denied reappointment *3 “Because [Karunakaran] is a pro se litigant, we read h[er] for the Fall 2018 semester. Id. ¶¶ 39, 51. Karunakaran argues supporting papers liberally, and will interpret them to raise the this denial resulted from discrimination and retaliation on strongest arguments that they suggest.” Burgos v. Hopkins, the basis of her race, national origin, and age. Id. ¶ 40. 14 F.3d 787, 790 (2d Cir. 1994). When a plaintiff's claims Karunakaran alleges that she was replaced by a younger involve civil rights violations, the Court applies this standard professor with “less age-defined seniority ... [and] possibly “with particular force.” Jackson v. NYS Dep't of Lab., 709 without a doctorate....” Id. at 39-40. F. Supp. 2d 218, 224 (S.D.N.Y. 2010) (citing McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004)). “However, On August 13, 2018, Karunakaran filed a charge of even pro se plaintiffs asserting civil right claims cannot discrimination with the New York State Division of Human withstand a motion to dismiss unless their pleadings contain Rights. Id. ¶ 3. The charge was subsequently sent to the factual allegations sufficient to raise a ‘right to relief above Equal Employment Opportunity Commission (“EEOC”), and the speculative level.’ ” Id. (quoting Twombly, 550 U.S. at on August 21, 2018, the EEOC issued a Right to Sue letter. 555). Lastly, “[a] district court deciding a motion to dismiss Id. ¶ 4. may consider factual allegations made by a pro se party in his (S.D.N.Y. 2011). Conclusory or naked allegations will not do. III. DISCUSSION See id. a. Title VII and ADEA Claims Here, as was the case in her first amended complaint, Karunakaran fails to plead allegations that support a minimal inference of discriminatory motivation. As Defendants point i. Discrimination out, Karunakaran's SAC “suffers from the same flaws” as Karunakaran alleges that Defendants discriminated against her FAC. See Doc. 69 at 10. Again, beyond conclusory her when they failed to address the Student's behavior statements that she was denied reappointment as a result and when they denied her reappointment. Doc. 62 ¶¶ 47, of discrimination, Karunakaran does not allege any specific 55. Karunakaran also alleges Defendants treated her less facts showing that the denial was related to discrimination favorably than similarly situated co-workers. Id. ¶ 55. on the basis of her race, national origin, or age. See, e.g., Marcus v. Leviton Mfg. Co., 661 F. App'x 29, 32-33 (2d Cir. Discrimination claims under Title VII or the ADEA are 2016) (“plaintiff must supply sufficient factual material, and analyzed under the three-step burden-shifting framework set not just legal conclusions, to push the misconduct alleged forth by the Supreme Court in McDonnell Douglas Corp. in the pleading beyond he realm of the ‘conceivable’ to the v. Green, 411 U.S. 792 (1973). See Kovaco v. Rockbestos- ‘plausible’ ”). Surprenant Cable Corp., 834 F.3d 128, 136 (2d Cir. 2016). Under the McDonnell framework, a plaintiff first must *4 Beyond this, Karunakaran again does not provide any information about similarly situated employees. When a establish a prima facie case of discrimination. McDonnell, plaintiff seeks to meet her prima facie case by reference 411 U.S. at 802. Once the plaintiff establishes a prima facie to the disparate treatment of an allegedly similarly situated case, the burden shifts to the defendant to offer a legitimate, employee, “the plaintiff must show that she shared sufficient nondiscriminatory reason for its actions. Id. at 802-03. If the employment characteristics with that comparator so that defendant satisfies its burden, the burden shifts back to the they could be considered similarly situated.” McGuinness v. plaintiff to demonstrate that the proffered reason is pretextual. Lincoln Hall, 263 F.3d 49, 53 (2d Cir. 2001). A plaintiff Id. at 804. Ultimately, the plaintiff will be required to prove need not show that a comparator was an “identically situated that the defendant acted with discriminatory motivation. See employee,” just that she was “similarly situated in all material Littlejohn v. City of New York, 795 F.3d 297, 307 (2d Cir. 2015). At the pleading stage, however, the facts alleged must respects.” Id. at 53-4 (quoting Shumway v. United Parcel merely “give plausible support to the reduced requirements Service, 118 F.3d 60, 64 (2d Cir. 1997)) (emphasis in that arise under McDonnell Douglas in the initial phase of ... original). Further, such employee “must have a situation sufficiently similar to plaintiff's to support at least a minimal litigation.” Id. at 311. Thus, the question on a motion to inference that the difference of treatment may be attributable dismiss is whether the plaintiff has adequately pleaded a to discrimination.” Kearney v. ABN AMRO, Inc., 738 F. prima facie case. Supp. 2d. 419, 426 (S.D.N.Y. Sept. 15, 2010) (quoting McGuinness, 263 F. 3d at 54) (internal quotation marks To establish a prima facie case of discrimination under omitted). Employment characteristics which can support either Title VII or the ADEA, a plaintiff must show that a finding that two employees are “similarly situated” (1) she belonged to a protected class, (2) she was qualified include “similarities in education, seniority, performance, for the position, (3) she suffered an adverse employment action, and (4) the adverse employment action occurred under and specific work duties,” DeJesus v. Starr Technical Risks circumstances giving rise to an inference of discriminatory Agency, Inc., 03 Civ. 1298 (RJH), 2004 WL 2181403, at *9 intent. See Terry v. Ashcroft, 336 F.3d 128, 137-38 (2d. Cir. (S.D.N.Y. Sept. 27, 2004), and similar requirements for skill, 2003). Although a plaintiff is not required to plead facts effort, and responsibility for jobs performed “under similar proving each element of a prima facie case of discrimination working conditions.” DeJohn v. Wal-Mart Stores E., LP, 09 at the pleading stage, her allegations must provide “plausible Civ. 01315 (GTS), 2013 WL 1180863, at *6 (N.D.N.Y. Mar. support” for a “minimal inference” that the employer was 20, 2013). motivated by discriminatory intent.” Littlejohn, 795 F.3d at to dismiss, the Court noted that Karunakaran's general *5 Because, as Defendants argue, Karunakaran does allegations that she was treated less favorably than certain not submit any allegations to support an inference that similarly situated employees were insufficient “without ... Defendants’ failure to address the Student's behavior and additional details about specific events and without ... denial of her reappointment were at all motivated by her race, additional facts that [she] was similarly situated in all material national origin, or age, her federal discrimination claims are respects to those comparator employees.” Doc. 55 at 9-10. dismissed. While given another opportunity to do so, Karunakaran again does not provide these specifics. Karunakaran merely re- alleges, upon information and belief, that she was replaced ii. Retaliation Claims by a younger professor. She does not identify or otherwise describe this professor, nor does she provide any facts alleging Karunakaran alleges Defendants retaliated against her that she and this professor were similarly situated in any for her participation in a protected activity. Doc. 62 material respect or that she was treated less well than this at 14. Specifically, she alleges Defendants denied her professor. reappointment because of her “persistent participation in lawful union activity” and because of her “whistleblower In addition, in a purported attempt to remedy the deficiencies queries.” Id. ¶ 40. in her FAC, Karunakaran explains that all her former co- workers are her comparators: “All faculty regardless of Like her discrimination claims, Karunakaran's retaliation appointment, are comparators.” Doc. 62 at 17. But, again, claims also are analyzed under the McDonnell framework.2 she does not explain how she was similarly situated to all Under that framework, a plaintiff first must establish a prima faculty members. That they teach the same students, as facie case of retaliation. McDonnell, 411 U.S. at 802. Once Karunakaran alleges, is not enough. See id. Nor does she the plaintiff establishes a prima facie case, the burden shifts offer specific examples of disparate treatment with respect to to the defendant to offer a legitimate, nonretaliatory reason these co-workers. While Karunakaran generally alleges that for its actions. Id. at 802–03; Kirkland v. Cablevision Sys., her similarly-situated co-workers were not terminated, id. ¶ 760 F.3d 223, 225 (2d Cir. 2014). If the defendant satisfies its 55, she does not provide any further details. burden, the burden shifts back to the plaintiff to demonstrate that the proffered reason is pretextual. McDonnell, 411 U.S. Karunakaran also alleges that another professor in the at 804; Kirkland, 760 F.3d at 225. psychology department at times let her students leave after only one hour of class, even though the class was meant to To state a prima facie case of retaliation under § 1981, run for two and a half hours. Doc. 62 at 59-60. Karunakaran a plaintiff must establish (1) participation in a protected does not identify or describe this alleged comparator, nor activity; (2) defendant's knowledge of the protected activity; does she explain how this professor's choice to let her (3) an adverse employment action; and (4) a causal students leave class early in any way supports an inference connection between the protected activity and the adverse of discrimination against her; notably, Karunakaran does not employment action. Dickens v. Hudson Sheraton Corp., LLC, allege that she would not have been allowed to make the 167 F. Supp. 3d 499, 522 (S.D.N.Y. 2016), aff'd, 689 F. App'x same choice. At bottom, none of these allegations can support 670 (2d Cir. 2017). even a minimal inference that Karunakaran experienced a difference in treatment attributable to discrimination. See Here, Karunakaran cannot plausibly allege a protected Henry v. NYC Health & Hosp. Corp., 18 F. Supp. 3d 396, activity. “A protected activity is one that ‘protest[s] or 409 (S.D.N.Y. 2014) (dismissing discrimination claims where oppose[s] statutorily prohibited discrimination.’ ” Kouakou v. complaint fails to identify, let alone describe, any purported Fideliscare New York, 920 F. Supp. 2d 391, 400 (quoting Cruz comparator). v. Coach Stores, Inc., 202 F.3d 560, 566); Brands-Kousaros v. Banco Di Napoli S.P.A., No. 97 Civ. 1673 (DLC), 1997 As to her claim that Defendants discriminated against her by WL 790748, at *5 (S.D.N.Y. Dec. 23, 1997) (“the protected failing to address the Student's behavior, Karunakaran does activity alleged must involve some sort of complaint about not show how this failure is in any way connected to her race, a type of discrimination that [a statute] forbids.”). While a national origin, or age. see Kotcher v. Rosa & Sullivan Appliance Ctr., 957 F.2d 59, retaliation claim is dismissed. 65 (2d Cir. 1992), “both formal and informal complaints [are] protected activity....” Schaper v. Bronx Lebanon Hosp. Ctr., 408 F. Supp. 3d 379, 391 (S.D.N.Y. 2019) (citing Hubbard b. NYSHRL and NYCHRL Claims v. Total Commc'ns, Inc., 347 F. App'x 679, 680–81 (2d Cir. 2009)). A district court may decline to exercise supplemental jurisdiction over state and city law claims when “the district Protected complaints generally include “making complaints court has dismissed all claims over which it has original to management ..., protesting against discrimination by jurisdiction.” 28 U.S.C. § 1367(c)(3); see also In re Merrill industry or by society in general, and expressing support Lynch Ltd. P'ships Litig., 154 F.3d 56, 61 (2d Cir. 1998) of co-workers who have filed formal charges.” Soliman v. (“[W]hen the federal claims are dismissed the ‘state claims Deutsche Bank AG, No. 03 Civ. 104 (CBM), 2004 WL should be dismissed as well.’ ” (quoting United Mine 1124689, at *12 (S.D.N.Y. May 20, 2004) (citing Cruz, 202 Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966))). Once F.3d at 566); see also Sumner v. U.S. Postal Serv., 899 a district court's discretion is triggered under § 1367(c) F.2d 203, 209 (2d Cir. 1990). An informal complaint may (3), it balances the traditional “values of judicial economy, be “nothing more than a simple ‘objection voiced to the convenience, fairness, and comity” in deciding whether employer,’ ... but at the very least, ‘there must be some form of to exercise jurisdiction. Kolari v. New York-Presbyterian professional indicia of a complaint made against an unlawful Hospital, 455 F.3d 118, 122 (2d Cir. 2006) (quoting Carnegie- activity.’ ” Soliman, 2004 WL 1124689, at *12 (internal Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988)). The citations omitted). Supreme Court has noted that in a case where all federal claims are eliminated before trial, “the balance of factors ... *6 Though Karunakaran repeatedly refers to “union will point toward declining to exercise jurisdiction over the activities” and “whistleblowing” she does not, as Defendants remaining state-law claims.” Id. (quoting Cohill, 484 18 U.S. point out, provide any allegations that her union activities or at 350 n.7). Having dismissed all of Karunakaran's federal whistleblowing concerned or were related to some statutorily- claims under Rule 12(b)(6), the Court declines to exercise prohibited discrimination. In particular, Karunakaran alleges supplemental jurisdiction over, and dismisses, her state and that she emailed Perez to encourage him to program every city law claims. department printer to print double-sided; she asked Perez why online classes could not be taught through “Peer faculty IV. CONCLUSION mentoring;” she asked Defendant Sangeeta Bishop whether For the reasons set forth above, the Defendants’ motion to she could serve on an equity and inclusion task force but dismiss the SAC is GRANTED with prejudice. was told that adjunct professors were not included; she asked whether faculty needed to include attendance information in It is SO ORDERED. their syllabi; and she asked why hard copies of mail had not been delivered to BMCC's uptown campus.3 Doc. 62 at 50-51. None of these suggestions or questions is a complaint, All Citations protest, or objection and, in any event, Karunakaran does not show how any of these activities relates to an unlawful Not Reported in Fed. Supp., 2022 WL 902370 activity, let alone statutorily-prohibited discrimination. As Footnotes 1 Antonio Perez, Karin Wilks, Sangeeta Bishop, Rifat Salam, Antoinette McKain, Robert Diaz, Ian Wentworth, Michael Hutmaker, and Marva Craig. Dep't of Soc. Servs., 461 F.3d 199, 205 (2d Cir. 2006). Retaliation claims under Title VII and the ADEA therefore are analyzed under the same framework. Dickens v. Hudson Sheraton Corp., LLC, 167 F. Supp. 3d 499, 522 (S.D.N.Y. 2016), aff'd, 689 F. App'x 670 (2d Cir. 2017); see also Terry, 336 F.3d at 141 (applying the same standards and burdens to claims of retaliation brought under both Title VII and the ADEA). 3 Karunakaran also repeats her allegation—in her FAC—that she engaged in protected activity when she complained to Defendants about the Student's behavior, but the Court in its order granting Defendants’ first motion to dismiss found none of those complaints—her informal complaints to Defendants as well as her formal March 18 complaint—amounted to protected activities because they did not concern unlawful activity. See Doc. 55 at 11. End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2023 WL 419699 defendants except the FDCPA claims, which are brought Only the Westlaw citation is currently available. against Defendants Daniels Norelli Cecere & Tavel PC United States District Court, S.D. New York. (“DNCT”), Harold Rosenthal, Allison Heilbraun, and Eric Tavel. Towaki KOMATSU, Plaintiff, v. URBAN PATHWAYS, INC.; Daniels Norelli Cecere STANDARD OF REVIEW & Tavel PC; Neighborhood Association for Inter- Cultural Affairs, Inc.; The City of New York; Ronald The Court must dismiss an in forma pauperis complaint, or Abad; Steven Banks; Barbara Beirne; Kristen Benjamin- any portion of the complaint, that is frivolous or malicious, fails to state a claim on which relief may be granted, or Solis; Martha Calhoun; Sharon Coates; Gary Cohen; seeks monetary relief from a defendant who is immune from Marin Gerber; Allison Gill-Lambert; Anthony M. such relief. 28 U.S.C. § 1915(e)(2)(B); see Livingston v. Gonzalez; Allison Heilbraun; Joni Kletter; Lisa Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). Lombardi; Julio Manjarrez; Nigel Marks; Jeffrey The Court must also dismiss a complaint when the Court lacks Mosczyc; Andrew Nastachowski; Molly Park; Kishea subject-matter jurisdiction. See Fed. R. Civ. P. 12(h)(3). Paulemont; Pinny Ringel; Harold Rosenthal; Ariana Saunders; Ann Marie Scalia; Frederick Shack; Nancy While the law mandates dismissal on any of these grounds, the Southwell; Samuel Spitzberg; Eric Tavel, all sued in Court is obliged to construe pro se pleadings liberally, Harris their individual and official capacities. Nancy Bannon; v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them Anthony Cannataro; Lyle Frank; Shorab Ibrahim; to raise the “strongest [claims] that they suggest,” Triestman Gary Jenkins; Lawrence Marks; Maura Noll; Daniel v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted, emphasis in Tietz, all sued in their official capacities, Defendants. original). But the “special solicitude” in pro se cases, id. at 22-CV-9080 (LTS) 475 (citation omitted), has its limits – to state a claim, pro se pleadings still must comply with Rule 8 of the Federal Rules Signed January 26, 2023 of Civil Procedure, which requires a complaint to make a short and plain statement showing that the pleader is entitled to Attorneys and Law Firms relief. Towaki Komatsu, Bronx, NY, Pro Se. Moreover, in circumstances where “a court considers whether to withdraw a pro se litigant's special status, it should consider not only that litigant's lifetime participation in all ORDER TO AMEND forms of civil litigation, but also his experience with the particular procedural setting presented.” Sledge v. Kooi, 564 LAURA TAYLOR SWAIN, Chief United States District F.3d 105, 109 (2d Cir. 2009). Thus, courts may “limit the Judge: withdrawal of special status to specific contexts in which the *1 Plaintiff, appearing pro se, brings this 338-page litigant's experience indicates that he may be fairly deemed complaint asserting violations of federal and state law. knowledgeable and experienced.” Id. Specifically, he seeks relief under 42 U.S.C. § 1983; the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692; the civil provision of the Racketeer Influenced and Corrupt BACKGROUND Organizations Act (“RICO”), 18 U.S.C. § 1964; and New York State and City law. A. Plaintiff's Procedural History in This Court Plaintiff Towaki Komatsu has brought numerous actions in By order dated November 22, 2022, the Court granted this court, including an action recently dismissed by the Plaintiff's request to proceed without prepayment of fees, undersigned. See Komatsu v. The City of New York, ECF Plaintiff's alleged unlawful exclusion from participating in public meetings held by the City of New York. See, e.g., C. Komatsu I Komatsu v. The City of New York, ECF 1:20-CV-7046 (ER) 1. Defendants (S.D.N.Y.), lv denied, 22-1996 (2d Cir. Dec. 22, 2022) On August 14, 2020, Plaintiff filed Komatsu I, where he (denying leave to appeal, based on leave-to file sanction, asserted many of the claims that are re-asserted in Komatsu “because the appeals do not depart from Petitioner's ‘prior II and named many of the same defendants. The first group pattern of vexatious filings.’ ”); Komatsu v. The City of New of defendants includes Urban, described by Plaintiff as “a York, ECF 1:18-CV-03698 (LGS) (GWG) (S.D.N.Y. Sept. private entity, business partner of HRA” (ECF 2, at 13), and 27, 2021) (ECF 627) (order involuntarily dismissing suit the following six Urban employees: Frederick Shack, Chief due to Plaintiff's vexatious conduct, including his repetitive Executive Officer; Lisa Lombardi and Nancy Southwell, voluminous and irrelevant filings), aff'd, 21-2479 (2d Cir. Deputy Executive Directors; Ronald Abad, Chief Operating Mar. 1, 2022) (“[T]he appeal is DISMISSED because it Officer; Kishea Paulemont, Program Director; and Sharon ‘lacks an arguable basis either in law or in fact.’ Neitzke v. Coates, an employee. Plaintiff also sued DNCT, the law firm Williams, 490 U.S. 319, 325 (1989).”). In the 20-CV-7046 representing Urban in its litigation brought against Plaintiff in action, Plaintiff was ordered to show cause why the action the Bronx County Housing Court, as well as two of the firm's “should not be dismissed pursuant to the Court's inherent lawyers, Allison Heilbraun and Eric Tavel. power to sanction vexatious litigants and/or failure to comply with court orders.” Id. (ECF 208, at 4.) That matter has been Plaintiff also sued individuals employed with the City's HRA, briefed but to date is unresolved. including Steven Banks, the former Commissioner; three HRA lawyers, Marin Gerber, Jeffrey Mosczyc, and Ann *2 Since December 20, 2020, Plaintiff has been subject to Marie Scalia; and Kristin Benjamin-Solis, an HRA employee. a prefiling injunction requiring him to seek permission to file “any new action in this Court against the City of New The final defendant whom Plaintiff also names in Komatsu II York, city officials, and members of the NYPD regarding their alleged involvement in preventing him from attending public is Nancy Bannon, a New York State Supreme Court Justice.1 meetings with the Mayor.” Komatsu, ECF 1:20-CV-07046 (ER) (ECF 45). 2. Allegations The following facts are taken from the complaint filed in B. Plaintiff's Prior Litigation Involving Claims Raised in Komatsu I.2 This New Action In addition to the litigation Plaintiff has pursued against In 2016, Plaintiff signed a lease with Urban to rent an the City of New York concerning his alleged exclusion apartment in the Bronx. Subsequent to Plaintiff's signing from public meetings, Plaintiff also has pursued litigation the lease, Urban initiated two Housing Court proceedings in against individuals employed by the City of New York, the the Bronx County Housing Court (“Housing Court”). DNTC State of New York, and private individuals regarding his represented Urban in these two proceedings. lease agreement with Urban Pathways (“Urban”), subsequent state court litigation brought by Urban against Plaintiff, *3 In January 2017, HRA agreed to pay Plaintiff's storage interactions with employees of New York City's Human expenses, incurred at CubeSmart, while Plaintiff resided in Resources Administration (“HRA”), and interactions with his Urban apartment. HRA later contested its agreement to employees of the New York State Office of Temporary pay for those expenses or to reimburse Plaintiff for the storage and Disability Assistance (“OTDA”). Before filing this expenses he had already paid. Plaintiff litigated that issue in lawsuit, Plaintiff filed a similar action asserting claims against fair hearings before the OTDA, and then in the state courts Urban and, as discussed below, naming many of the same in proceedings that he initiated under Article 78 of the New defendants named here. See Komatsu v. City of New York, York Civil Practice Law and Rules (“Article 78”). On or ECF 1:20-CV-6510, 2 (S.D.N.Y. Oct. 22, 2020) (“Komatsu about January 31, 2018, Defendant Judge Bannon dismissed I”). Accordingly, the Court will first describe the facts alleged Plaintiff's initial Article 78 proceeding. Plaintiff brought in Komatsu I, and then turn to the facts alleged in this new another proceeding that was pending before Defendant Judge In addition to seeking damages, Plaintiff sought various forms and Samuel Spitzberg, OTDA lawyers; and Maura Noll, of injunctive relief, including orders (1) directing the City of OTDA Administrative Law Judge; (6) an employee of the New York and Defendant Mosczyc to provide discovery in Community Affairs Unit of the Mayor's Office, Pinny Ringel; Plaintiff's state-court litigation, (2) staying his Housing Court and (7) another DNCT lawyer, Harold Rosenthal. proceedings, or in the alterative, transferring the state court action to this court; (3) directing Judge Bannon to provide an Finally, Plaintiff names as defendants the following explanation regarding one of her decisions; and (4) directing individuals, but only in their official capacities: (1) Anthony the City of New York to cease all of its business with Urban. Cannotora, Acting Chief Judge of the State of New York; (2) Judge Lyle Frank, New York State Supreme Court; (3) Judge Shorab Ibrahim, Bronx County Housing Court; (4) Gary 3. Litigation History Jenkins, Commissioner of the New York City Department On October 22, 2020, the Honorable Louis L. Stanton of Social Services (“DSS”); (5) Lawrence Marks, Chief dismissed the complaint as frivolous, for failure to state a Administrative Judge of the UCS; and (6) Joni Kletter, claim on which relief may be granted, for seeking monetary Administrative Law Judge and New York City attorney, and relief from defendants who are immune from such relief, and employee of former Mayor Bill de Blasio. under the Anti-Injunction Act. See 28 U.S.C. § 1915(e)(2) (B)(i)-(iii); 28 U.S.C. § 2283. Plaintiff appealed the decision, and the United States Court of Appeals for the Second Circuit 2. Allegations affirmed. See Komatsu v. CubeSmart, No. 20-3676-cv (2d Cir. Dec. 20, 2021) (mandate issued Jan. 31, 2022). a. Urban and DNCT Defendants *4 Plaintiff's allegations against the Urban and DNCT D. Komatsu II Defendants concern his litigation in Housing Court. He 1. Defendants alleges that on August 16, 2019, Urban employee Coates In this new action, Plaintiff brings the same claims, as well “lied by fraudulently claiming that I owed Urban more than as new claims against the following defendants, whom he $30,000 in rent for my Urban apartment.” (ECF 2, at 76.) named in Komatsu I: (1) Urban and Urban employees Shack, “Urban used attorneys for DNCT to illegally commence Lombardi, Abad, Coates, Paulemont, and Southwell; (2) [two lawsuits] as nonpayment proceedings against me. DNCT and DNCT lawyers Heilbraun and Tavel; (3) former Due to mootness, [these lawsuits] must be dismissed with Commissioner Banks, HRA employee Benjamin-Solis, and prejudice.” (Id.) HRA lawyers Gerber, Mosczyc, and Scalia; and (4) Judge Bannon. Plaintiff alleges that more recently, on March 3, 2022, Plaintiff informed a representative at the Housing Court that Plaintiff also brings new claims against additional defendants, Urban failed to provide him with legal papers; he seeks who fall into the following seven categories: (1) additional dismissal of a third action brought by Urban for failure to HRA defendants – Gary Jenkins, HRA's Commissioner; serve him such papers. He also seeks “a subpoena that would Martha Calhoun, HRA's General Counsel; Allison Gil- order Urban to provide me the video recordings that were Lambert, an HRA lawyer; Barbara Beirne, Deputy Chief recorded on 3/8/22 both in the lobby and stairwells in my Agency Contacting Officer for HRA, who is a lawyer; building” to show that Defendant Gonzalez, a process server, and Molly Park, an HRA employee; (2) additional Urban did not in fact serve Plaintiff legal papers. (Id.) defendants - Ariana Saunders, Urban's Chief Compliance Officer, and Andrew Nastachowski and Gary Cohen, Urban Plaintiff contends that DNCT lawyers “committed continuing employees; (3) the Neighborhood Association for Inter- violations against me as they committed wire fraud ... and Cultural Affairs, Inc. (“NAICA”) and Julio Manjarrez, otherwise violated RICO ... the FDCPA,” and New York State a NAICA lawyer, who represented Plaintiff during his statutes. (Id. at 77.) He also contends that “Urban, DNCT, Urban litigation in Housing Court; (4) a licensed process and their personnel committed multiple acts of wire fraud server, Anthony Gonzalez, who allegedly did not serve against me through legal filings that were filed by attorneys Plaintiff with legal papers; (5) individuals employed with the for Urban[.]” (Id.) Finally, Plaintiff claims that the HRA and Urban Defendants incidents include: OTDA Commissioner Tietz, sued in his are so intertwined as to suggest that Urban is “an alter-ego, official capacity; OTDA lawyers Marks and Spitzberg; and proxy, and agent of HRA while being a private entity whose Administrative Law Judge Noll. acts are attributable to HRA.” (Id. at 181.) d. Defendants former Commissioner b. HRA Defendants Banks, Pinny Ringel, and Lori Kletter Plaintiff's claims against the HRA Defendants concern *5 Plaintiff's claims against former Commissioner Banks HRA's alleged involvement in Plaintiff's litigation against also concern New York City public meetings involving Urban, that is: (1) Urban's alleged objection of justice; (2) public officials. For example, Plaintiff asserts that “I twice interference with Plaintiff's ability to obtain counsel; (3) testified ... during City Council public hearings on 9/20/18 violation of his rights related to receiving discovery material; and 2/4/19 .... Mr. Banks was present on 2/4/19 while I and (4) alleged fraud on the court by HRA lawyers. The testified about Mr. Vargas and deliberately turned the screen majority of these claims arose on or before August 14, of my laptop to face Mr. Banks as I played a relevant video in 2020, including nearly all of the claims against Banks and conjunction with and support of my testimony.” (Id. at 187.) the claims against Benjamin-Solis. These claims include Plaintiff's CubeSmart litigation, which was the subject of Those claims brought against Ringel and Kletter also arise Plaintiff's claims against HRA in Komatsu I. rise out of interactions with City officials at public meetings, including on such meeting on November 16, 2021, when With respect to the pro bono counsel allegation, Plaintiff Ringel and Kletter “illegally prevented me from having a asserts that, before former Commissioner Banks “resigned conversation with Mr. Banks during that meeting right after I from HRA near the state of 2022 ... he repeatedly told me talked with Mr. de Blasio during it while he stood next to Mr. that he and HRA would” assist Plaintiff in securing pro [Eric] Adams.” (Id. at 89.) bono counsel. (Id.) These efforts, Plaintiff contends, were unsuccessful in part because the HRA Defendants “engag[ed] in illegal acts against me pertaining to public meetings that e. NAICA Defendants have been public forums that include town hall meetings, resource fair meetings, and public hearings by illegally Plaintiff brings legal malpractice claims against NAICA preventing [me] from lawfully attending them in the rooms in and NAICA lawyer Manjarrez, who represented Plaintiff which members of the public conducted them with Mr. Banks during one of the proceedings brought by Urban. (Id. at 79) and other personnel[.]” (Id.) (“Mr. Manjarrez confirmed that he was defying a directive that I had issued to him to obtain the video recordings The allegations against the HRA lawyers concern their that were recorded on 3/8/22 by video security cameras representation of the City during Plaintiff's litigation against that are installed in public areas in my building” to prove the City. These government lawyers include Beirne, Gil- that Defendant Gonzalez did not serve Plaintiff with legal Lambert, Gerber, Mosczyc, and Scalia. The claims against papers.). Park concern Park's informing Plaintiff, on September 13, 2022, that Plaintiff would not receive discovery in his OTDA proceeding. (See id. at 118.) f. Process Server Gonzalez Plaintiff brings claims against a process server who allegedly c. OTDA Defendants failed to serve legal papers relating to the Urban litigation. (Id. at 76) (“I wasn't served legal papers for Urban3 then by Plaintiff's claims against the OTDA Defendants concern Defendant Anthony Gonzalez who claimed that he serve me Plaintiff's litigation with the OTDA, over which Judge legal papers[.]”). Bannon presided and in which HRA lawyers represented 3. Claims capacity claims against Judges Bannon, Cannataro, Frank, Plaintiff asserts Section 1983 Claims against: (1) The Ibrahim, Chief Administrative Judge Marks, Administrative City of New York; (2) Urban and Urban employees Law Judge Noll, and Commissioner Tietz, notwithstanding Ronald Abad, Lisa Lombardi, Andrew Nastachowski, Ariana his prior experience with this specific context. Sledge, 564 Saunders, Frederick Shack, Nancy Southwell, and Kishea F.3d at 109. Because these claims are barred under the Paulemont; (3) HRA Commissioner Gary Cohen, former Eleventh Amendment, the Court dismisses all federal claims HRA Commissioner Steven Banks, HRA lawyers Marin brought against these Defendants. 28 U.S.C. § 1915(e)(2)(B) Gerber, Ann Marie Scalia, Jeffrey Mosczyc, and Allison (iii). Gill-Lambert, HRA employee Kristen Benjamin-Solis, HRA General Counsel Martha Calhoun, (4) Judges Nancy Bannon, Lyle Frank, Shorab Ibrahim, Joni Kletter, and Maura Noll; B. Plaintiff's Claims Against Government Attorneys Are (5) OTDA lawyers Nigel Marks and Samuel Spitzberg; (6) Dismissed HRA employee Molly Park; and (7) Mayor's Office employee *6 Plaintiff's federal claims brought against Defendants Pinny Ringel. Calhoun, Beirne, Gil-Lambert, Mosczyc, Gerber, Scalia, Marks, and Sptizberg arise from those defendants' legal Plaintiff's FDCPA claims are brought against the Urban advocacy representing the HRA and OTDA. In Komatsu I, and DNCT Defendants, that is, (1) Urban and Urban Plaintiff brought similar claims against Mosczyc and Gerber, employees Ronald Abad, Sharon Coates, Lisa Lombardi, and Judge Stanton dismissed the claims because these two Kishea Paulemont, Ariana Saunders, Frederick Shack, Nancy Defendants, as government lawyers, were absolutely immune Southwell; and (2) DNCT and DNCT lawyers Harold from the relief Plaintiff sought from them. Undeterred by the Rosenthal, Eric Tavel, and Allison Heilbraun. dismissal of those claims in Komatsu I, Plaintiff continues to seek relief against government attorneys who are his Plaintiff's RICO claims are brought against City adversaries in his state court litigation. As explained in officials, NAIC Defendants, Urban Defendants, and DNCT Komatsu I, however, government attorneys are immune Defendants. from suit under Section 1983 “when functioning as an advocate of the state [or local government] in a way that is Plaintiff also asserts various state law claims. intimately associated with the judicial process.” Mangiafico v. Blumenthal, 471 F.3d 391, 396 (2d Cir. 2006); see Barrett v. United States, 798 F.2d 565, 572–73 (2d Cir.1986) (absolute immunity for government attorney defending state in a civil DISCUSSION lawsuit). Accordingly, the Court dismisses Plaintiff's federal A. Claims Brought Against State Defendants in Their claims against the government attorneys because they are Official Capacity Are Dismissed Under the Eleventh immune from such relief. See 28 U.S.C. § 1915(e)(2)(B)(iii). Amendment Plaintiff brings claims against Judges Nancy Bannon, C. Claims Brought Against HRA Employee Park Anthony Cannatoro, Lyle Frank, Shorab Ibrahim; Chief The Court also dismissed the claims brought against Park, Administrative Judge Lawrence Marks; Administrative Law an HRA employee who allegedly informed Plaintiff that he Judge Maura Noll; and Commissioner Daniel Tietz, in their was not entitled to discovery, because this Defendant is also official capacities. In Komatsu I, Plaintiff also brought several immune from the relief Plaintiff seeks. Like the HRA lawyers, claims against New York State officials, in their official who are absolutely immune as government advocates, Parks capacity. In dismissing those claims under the Eleventh is absolutely immune for damages where her conduct as an Amendment, Judge Stanton explained that the claims brought HRA employee was “intimately associated with the judicial against these State officials were not permitted under the process.” Mangiafico, 471 F.3d at 396. Accordingly, the Court Eleventh Amendment. See Komatsu I, 1:20-CV-6510, 10 dismisses all claims against this Defendant. 28 U.S.C. § (“Accordingly, the Court dismisses Plaintiff's claims under 1915(e)(2)(B)(iii). federal law against ... Justice Bannon, Judge Spears, and Defendant Vaughan, in their official capacities, under the doctrine of Eleventh Amendment immunity. 28 U.S.C. § D. Claims Brought Against Administrative Law Judge Banks and Benjamin-Solis that were considered on the merits Noll by Judge Stanton and dismissed for failure to state a claim. Plaintiff's claims under federal law against Judge Noll are See § 1915(e)(2)(B)(ii). In Komatsu II, Plaintiff brings the barred under the doctrine of judicial immunity. Under this same claims against these Defendants, as well as new claims doctrine, judges are absolutely immune from suit for claims arising from the same conduct, that is, Plaintiff's litigation against them in their individual capacities for damages with HRA. These claims are barred under the doctrine of for any actions taken within the scope of their judicial claim preclusion.3 responsibilities. See Mireles v. Waco, 502 U.S. 9, 11-12 (1991) (applying judicial immunity to claims under § 1983); Under the doctrine of claim preclusion, also known as “res Deem v. DiMella-Deem, 941 F.3d 618, 620-21 (2d Cir. 2019) judicata,” a litigant may not bring a new case that includes (same as to claims under § 1983 and § 1985), cert denied, claims or defenses that were or could have been raised in an 140 S. Ct. 2763 (2020). Generally, “acts arising out of, or earlier case in which the same parties were involved if that related to, individual cases before [a] judge are considered case resulted in a judgment on the merits. Brown v. Felsen, judicial in nature.” Bliven v. Hunt, 579 F.3d 204, 210 (2d 442 U.S. 127, 131 (1979). Claim preclusion “prevents parties Cir. 2009). “[E]ven allegations of bad faith or malice cannot from raising issues that could have been raised and decided overcome judicial immunity.” Id. at 209. This is because, in a prior action – even if they were not actually litigated.” “[w]ithout insulation from liability, judges would be subject Lucky Brand Dungarees, Inc. v. Marcel Fashions Grp., Inc., to harassment and intimidation ....” Young v. Selsky, 41 F.3d 140 S. Ct. 1589, 1594, 206 L. Ed. 2d 893 (2020). 47, 51 (2d Cir. 1994). Claim preclusion generally applies if: “(1) the prior decision Judicial immunity does not apply when a judge acts outside was a final judgment on the merits, (2) the litigants were the of his or her judicial capacity, or when a judge takes action same parties, (3) the prior court was of competent jurisdiction, that, although judicial in nature, is taken “in the complete and (4) the causes of action were the same.” In re Motors absence of all jurisdiction.” Mireles, 502 U.S. at 11-12; see Liquidation Co., 943 F.3d 125, 130 (2d Cir. 2019) (citation also Bliven, 579 F.3d at 209-10 (describing actions that are and internal quotation marks omitted). judicial in nature). But “the scope of [a] judge's jurisdiction must be construed broadly where the issue is the immunity of To determine if a claim could have been raised in an earlier the judge.” Stump v. Sparkman, 435 U.S. 349, 356 (1978). action, courts look to whether the present claim arises out of the same transaction or series of transactions asserted in the Plaintiff's claims against Judge Noll arise from her actions earlier action, see Pike v. Freeman, 266 F.3d 78, 91 (2d Cir. and decisions in OTDA proceedings, conduct that is well 2001), or, in other words, whether facts essential to the second within the scope of judicial duties. Judge Noll is therefore suit were present in the first suit, NLRB v. United Techs. Corp., immune from suit as to Plaintiff's claims against her under the 706 F.2d 1254, 1260 (2d Cir. 1983). “A party cannot avoid the doctrine of judicial immunity. The Court dismisses Plaintiff's preclusive effect of res judicata by asserting a new theory or claims against Judge Noll because Plaintiff seeks monetary a different remedy.” Brown Media Corp. v. K&L Gates, LLP, relief against a defendant who is immune from such relief, 28 854 F.3d 150, 157 (2d Cir. 2017) (internal quotation marks U.S.C. § 1915(e)(2)(B)(iii), and, consequently, as frivolous, and citation omitted). 28 U.S.C. § 1915(e)(2)(B)(i). See Mills v. Fischer, 645 F.3d 176, 177 (2d Cir. 2011) (“Any claim dismissed on the ground All of Plaintiff's claims brought against Benjamin-Solis, and of absolute judicial immunity is ‘frivolous’ for purposes of some of the claims brought against Banks, accrued before [the in forma pauperis statute].”). Plaintiff filed Komatsu I. Further, all of the claims brought against Benjamin-Solis and some of the claims brought E. Claims Brought Against Former HRA Commissioner against Banks in Komatsu II arise from the same series of Banks and HRA employee Benjamin-Solis transactions as the claims asserted against them in Komatsu I. Because Plaintiff did bring those claims, or could have 1. Claims that arose before August 10, 2020 against brought those claims in Komatsu I, those claims are barred Banks and Benjamin-Solis under the doctrine of claim preclusion. 2. Claims against Banks that accrued after August 14, omitted). 2020 Plaintiff brings new claims against Banks regarding his Plaintiff alleges no facts showing that the City of New York interactions with Banks at public meetings. Plaintiff is barred violated any of his federal constitutional or statutory rights from bringing new claims against City officials regarding because of one of the City's policies, customs, or practices. incidents occurring at public meetings, unless he receives The Court therefore dismisses Plaintiff's claims under federal permission to do so. Because Plaintiff did not seek permission law against the City of New York and Commissioner Jenkins, to file new claims against these individuals, as discussed sued in his official capacity, for failure to state a claim on below in Section J, those claims are dismissed without which relief may be granted. prejudice. *8 With respect to Bank's alleged interference with G. Section 1983 Claims Brought Against Private Plaintiff's retaining pro bono counsel, Plaintiff does not Defendants suggest a violation of a constitutional right. The Sixth Plaintiff brings Section 1983 claims against private Amendment, which provides a right to counsel in criminal individuals and entities, also named in Komatsu I, that is: cases, “does not govern civil cases.” Turner v. Rogers, Urban, Abad, Coates, Lombardi, Paulemont, Shack, and 564 U.S. 431, 441 (2011). Thus, to the extent Banks Southwell. Judge Stanton dismissed these claims for failure interfered with Plaintiff's retaining counsel, such interference to state a claim because Plaintiff failed to show that any does not implicate Plaintiff's rights under the United conduct by these private individuals could be considered States Constitution. Accordingly, the claims against Banks state action. Now, Plaintiff reasserts similar claims against concerning pro bono counsel are dismissed for failure to state these same private individuals and also names additional a claim. private individuals, not named in Komatsu I, that is: Saunders, Nastachowski, and Cohen. Plaintiff still does not show, however, that these defendants' conduct can be considered F. The City of New York and HRA Commissioner state action. Thus, for the reasons set forth in Judge Stanton's Jenkins order, dismissing the Section 1983 claims against the private The Court dismisses Plaintiff's claims under federal law individuals, the Court dismisses Plaintiff's claims against the against the City of New York and Commissioner Jenkins, individual defendants named in this action for failure to state who is sued in his official capacity. When a plaintiff sues a claim. a municipality under Section 1983, it is not enough for the plaintiff to allege that one of the municipality's employees or agents engaged in some wrongdoing. The plaintiff must H. Claims Under Civil RICO show that the municipality itself caused the violation of the Plaintiff asserts that Defendants have conspired against him, plaintiff's rights. See Connick v. Thompson, 563 U.S. 51, 60 in violation of the civil provision of RICO. Plaintiff brought (2011) (“A municipality or other local government may be similar claims in Komatsu I, and Judge Stanton dismissed liable under this section [1983] if the governmental body those claims because Plaintiff failed to show that Defendants itself ‘subjects’ a person to a deprivation of rights or ‘causes’ engaged in any activity that would support any claim under a person ‘to be subjected’ to such deprivation.”) (quoting civil RICO. In this action, Plaintiff also fails to state any facts Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. suggesting a RICO violation. The Court therefore dismisses 658, 692 (1978)); Cash v. Cnty. of Erie, 654 F.3d 324, 333 (2d Plaintiff's claims under civil RICO for failure to state a claim Cir. 2011). on which relief may be granted. See § 1915(e)(2)(B)(ii). To state a Section 1983 claim against a municipality, the plaintiff must allege facts showing (1) the existence of a I. Claims Under the Fair Debt Collection Practices Act municipal policy, custom, or practice, and (2) that the policy, (“FDCPA”) custom, or practice caused the violation of the plaintiff's *9 Plaintiff brings claims against the Urban and DNCT constitutional rights. Jones v. Town of East Haven, 691 F.3d Defendants, asserting that they violated the FDCPA. He 72, 80 (2d Cir. 2012); see Bd. of Cnty. Comm'rs of Bryan alleges that they falsely claimed in court that Plaintiff owed rent. He relies on a district court decision, in which a Kucker & Bruh, LLP, 958 F. Supp. 2d 524, 526 (S.D.N.Y. Lombardi, Kishea Paulemont, Ariana Saunders, Frederick 2013) (“Defendant K & B is a law firm that primarily Shack, and Nancy Southwell are dismissed for failure to state represents landlords in New York City. K & B is a debt a claim upon which relief may be granted. collector as defined by the FDCPA.”). The FDCPA applies to consumer debt “arising out of ... J. Claims Against former Commissioner Banks, Pinny transaction[s] ... primarily for personal, family, or household Ringel, and Lori Kletter purposes.” 15 U.S.C. § 1692a(5); Polanco v. NCO Portfolio Plaintiff's claims against former Commissioner Banks, Ringel Mgmt., Inc., 930 F. Supp. 2d 547, 551 (S.D.N.Y. 2013) and Kletter, that arise out of alleged conduct by New York (“[T]he FDCPA is triggered when the obligation is a debt City officials at public meetings, fall within the scope of arising out of a consumer transaction”). In cases where Judge Ramos's order requiring Plaintiff to seek permission to the FDCPA applies, it prohibits deceptive and misleading file “any new action in this Court against the City of New practices by “debt collectors.” 15 U.S.C. § 1692e. A debt York, city officials, and members of the NYPD regarding their collector is defined in Section 1692a(6) as: (1) a person alleged involvement in preventing him from attending public whose principal purpose is to collect debts; (2) a person who meetings with the Mayor.” Komatsu, ECF 1:20-CV-07046 regularly collects debts owed to another; or (3) a person who (ER) (ECF 45). These claims are therefore dismissed without collects its own debts, using a name other than its own as prejudice because Plaintiff has not obtained permission to if it were a debt collector. See also Henson v. Santander bring these claims against these defendants. Consumer USA, Inc., 137 S. Ct. 1718 (2017) (holding that entities that regularly purchase debts originated by someone K. Claims Under State Law else and then seek to collect those debts for their own account *10 A district court may decline to exercise supplemental are not necessarily debt collectors subject to the FDCPA). jurisdiction over claims under state law when it “has dismissed all claims over which it has original jurisdiction.” Section 1692d provides that “[a] debt collector may not 28 U.S.C. § 1367(c)(3). Generally, “when the federal-law engage in any conduct the natural consequence of which is claims have dropped out of the lawsuit in its early stages to harass, oppress, or abuse any person in connection with and only state-law claims remain, the federal court should the collection of a debt.” Conduct in violation of the statute decline the exercise of jurisdiction ....” Carnegie-Mellon includes, among other examples and without limitation, using Univ. v. Cohill, 484 U.S. 343, 350 (1988) (footnote omitted). violence or the threat of violence or other criminal means; At this stage, it is premature to determine whether the using obscene or profane language “the natural consequence Court will decline to exercise its supplemental jurisdiction of which is to abuse the hearer or reader”; publishing a list of over any claims under state law that Plaintiff is asserting. consumers who refuse to pay debts; or “[c]ausing a telephone See Kolari v. New York-Presbyterian Hosp., 455 F.3d 118, to ring or engaging any person in telephone conversation 122 (2d Cir. 2006) (“Subsection (c) of § 1367 ‘confirms repeatedly or continuously with the intent to annoy, abuse, or the discretionary nature of supplemental jurisdiction by harass” the person called. 15 U.S.C. § 1692d. enumerating the circumstances in which district courts can refuse its exercise.’ ” (quoting City of Chicago v. Int'l Coll. of Plaintiff's claims against the Urban Defendants fails to state Surgeons, 522 U.S. 156, 173 (1997))). claims upon which relief may be granted because Plaintiff does not state facts suggesting that they are debt collectors. His claims against the DNCT Defendants, however, may state claims, if he can show that these defendants engaged in LEAVE TO AMEND harassing conduct with respect to the alleged debt owed to Urban. District courts generally grant a pro se plaintiff an opportunity to amend a complaint to cure its defects, but leave to amend As discussed below, the Court grants Plaintiff leave to file an is not required where it would be futile. See Hill v. Curcione, amended complaint as to his FDCPA claims against DNCT 657 F.3d 116, 123-24 (2d Cir. 2011); Salahuddin v. Cuomo, and the DNCT lawyers Harold Rosenthal, Eric Tavel, and 861 F.2d 40, 42 (2d Cir. 1988). The Court, having dismissed Allison Heilbraun. His FDCPA claims brought against Urban all of the claims brought against the DNCT Defendants except Court grants Plaintiff leave to file an amended complaint to that complies with the standards set forth above. assert his FDCPA claims against the DNCT Defendants. The amended complaint must only name the DNCT Defendants *11 Plaintiff must submit the amended complaint, which and only assert the FDCPA claims, and it may not exceed may not exceed 20 pages, to this Court's Pro Se Intake 20 pages. These limitations are imposed based on Plaintiff's Unit within sixty days of the date of this order, caption litigation history in this court, where he reasserts the same the document as an “Amended Complaint,” and label the claims against the same defendants following dismissal of document with docket number 22-CV-9080 (LTS). such claims on the merits. The page-limitation is imposed because Plaintiff's pleadings, both in this action and prior An Amended Complaint form is attached to this order. No actions, do not comply with Rule 8’s requirement that his summons will issue at this time. If Plaintiff fails to comply complaint consist of short and plain statements. See Fed. R. within the time allowed, and he cannot show good cause Civ. P. 8(a). to excuse such failure, the complaint will be dismissed for failure to state a claim upon which relief may be granted. Should Plaintiff submit an amended complaint that fails to comply with these requirements, the Court will direct the The Court certifies under 28 U.S.C. § 1915(a)(3) that any Clerk of Court to return Plaintiff's pleading and will provide appeal from this order would not be taken in good faith, and him one more opportunity to submit an amended complaint therefore in forma pauperis status is denied for the purpose that does not exceed 20 pages, names DNCT Defendants, of an appeal. See Coppedge v. United States, 369 U.S. 438, and asserts FDCPA claims. If he fails to comply with the 444–45 (1962). requirements a second time, the Court will dismiss the action for failure to comply with the Court's order. SO ORDERED. CONCLUSION Attachment The Court dismisses Plaintiff's federal claims brought against Urban Pathways, Inc., Neighborhood Association For Inter- Cultural Affairs, Inc., The City Of New York, Ronald Abad, Steven Banks, Barbara Beirne, Kristen Benjamin- Solis, Martha Calhoun, Sharon Coates, Gary Cohen, Marin Gerber, Allison Gill-Lambert, Anthony M. Gonzalez, Joni Kletter, Lisa Lombardi, Julio Manjarrez, Nigel Marks, Jeffrey Mosczyc, Andrew Nastachowski, Molly Park, Kishea Paulemont, Ariana Saundersm, Ann Marie Scalia, Frederick Shack, Nancy Southwell, Samuel Spitzberg, Nancy Bannon, Anthony Cannataro, Lyle Frank, Shorab Ibrahim, Gary Jenkins, Lawrence Marks, Maura Noll, and Daniel Tietz, as frivolous, for failure to state a claim on which relief may be granted, and for seeking monetary relief from defendants that are immune from such relief. See 28 U.S.C. § 1915(e)(B)(i)- (iii). Those claims brought against Steve Banks, Penny Ringel, and Lorri Kletter that arise out of public meetings are dismissed without prejudice, pursuant to the prefiling injunction issued in Komatsu, ECF 1:20-CV-07046 (ER) (ECF 45). Federal courts are courts of limited jurisdictian (limited power), Generally, only two types of UNITED STATES DISTRICT COURT tases can be beard in federal court; cases involving a federal question and cases invalving SouTIERN DISTRICT OF NEW YORK diversity of citizenship of the parties. Under 28 US.C. § 1531, a case arising under the United States Constitution or federal laws or treaties is a federal question case, Under 28 U.S.C. 4 1332, a case in which a citizen of one State sues a citizen of another State or nation, and the amount in controversy is more than $75,000, is a diversity case, In a diversity case, no defendant may I cv be a citizen of the same State as ary plaintiff. incite case pumber if ore has been What is the basis for federal-court jurisdiction in your case? Write the full name of each plaintiff. assigned Co Federal Question -against- AMENDED 1 Diversity of Citizenship A. Lf you checked Federal Question COMPLAINT ou Which of your federal constitutional or federal statutory rights have been violated? De you want a jury trial? Ove: ONo Write the full name of each defendant, If yau need more Space, write “see attached” in the space anove and attach an additional sheet of paper with the full list of TO names. Tha listed above must be identical to those B. If you checked Diversity of Citizenship contained in Sectian Il, 1. Citizenship of the parties ‘Of what State is each party a citizen? The plaintit® , is a citizen of the State of (Plaintiff's name} NOTICE The public can access alectranic court Files. For privacy and security reasons, papers Filed with the court should therefore nat contain: an individwal’s full social sacurity number ar full (State In which the person resides and |ntends to remain.) birth date; the fullname af a persen knewn te be a minar; or a complete financial account number. A filing may include anly: the last four digits of a social security number; the year of or, if not lawfully admitted for permanent residence in the United States, a citizen or an individual's birth; a minor's initials; and the last four digits of a financial account number. subject of the foreign state of See Federal Rule of Civil Procedure 5.2, if more than one plaintiff is named in the complaint, attach additional pages providing nformation for each additional plaintitt. Page 2 ifthe defendant is an individual: Raw, The defendant, , is □ citizen of the State of (Defendant's name) or, if not lawfully admitted for permanent residence in the United States, a cilizen or subject of the foreign state of lf the defendant is a corporation: The defendant, _ is incorporated under the laws of the State of and has its principal place of business in the State of or is incorporated under the laws of [foreign state) and has its principal place of business in □ IF more than one defendant is named in the complaint, attach additional pages providing information for each additonal defendant. TL. PARTIES A. Plaintiff Information Prowde the follawing information for each plaintiff narned in the complaint, Attach additianal pages if needed. First Name Middle Initial Last Name Street Address County, City State Zip Code Telephone Number Email Address [if available) □□□□

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, Attach additional pages if needed, 1: First Name Last Name TS Current Job Title [or ather identifying information) Current Work Address (or other address where defendant may be served) □□ County, Ci State Zip Code Sect ° INJURIES: Defendant 2: Ifyou were injured as a result of these actions, describe your injuries and what medical First Mame Last Name treatment, if any, you required and received, Current Jab Title (ar ather identifying information) Fe Current Work Address (or other address where defendant may be served) County, Cty State Zip Code Defendant 3: —_—_—_—_—_—_— First Name Last Name Iv. RELIEF es State brietly what money damages or other relief you want the court to order. Current Job Tithe (ar ather identifying information) Current Work Address (or other address where defendant may be served) County, City State Zip Code

Page 4 Page 6 V. PLAINTIFF'S CERTIFICATION AND WARNINGS First Name Last Narme By aigning below, | certify to the best of my knowledge, information, and belief that; (1) the ——————————————————— eee complaint is not being presented for an improper purpose (such as to harass, cause Current Job Title (or other identifying information) 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 Current Wark Address (ae other address where defendant may be served) contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity tor further investigation or discovery; County, City State Zip Code and (4) the complaint otherwise complies with the requirements of Federal Rule of Civil Procedure 11. ILL STATEMENT OF CLAIM [agree te notify the Clerk's Office in writing of any changes to my mailing address. | □□□□□□□□□□□□□□□□□□□□□ understand that my failure to keep a current address on file with the Clerk's Office may resultin the dismissal of my case. of occurrence: Each Plaintiff must sign and date the complaint. Attach additional pages if necessary. If seeking to FACTS: proceed without prepayment of fees, each plaintiff must alsa submit an IFP application. Stale here briefly the FACTS that suppert your case. Describe what happened, how you were harmed, and what each defendant personally did or failed to do that harmed you. Attach additional pages if needed. Dated Plaintiff's Signature ———— First Narne Middle: Initial Last Name Street Address OO County, City State Zip Code Telephone Number Email Address (if available]

Thave read the Pro Se (Nonprisoner) Consent to Receive Documents Electronically: Ove O No If you de consent te receive documents electronically, submit the completed farm with your TTT complaint, IF you de net consent, please do mot attach the form,

Page 5 Page?

Not Reported in Fed. Supp., 2023 WL 419699

Footnotes 1 Plaintiff named the following defendants in Komatsu I but not in Komatsu II: Marilyn Andzeski, Urban management agent; Molly McCracken, an employee with Services for the Underserved, Inc.; Avraham Schmeidler, an HRA employee; Wendell Vaughan, a law clerk; the New York State Office off Court Administration; the New York State Unified Court System; and Judge Brenda Spears, from the Bronx County Housing Court. 2 The allegations from Komatsu I, described in this order, relate to the allegations set forth in Komatsu II, and do not include each allegation set forth in Komatsu I. 3 Although claim preclusion is an affirmative defense to be pleaded in a defendant's answer, see Fed. R. Civ. P. 8(c), the Court may, on its own initiative, raise the issue. See, e.g., Grieve v. Tamerin, 269 F.3d 149, 154 (2d Cir. 2001) (affirming district court's dismissal on grounds of issue preclusion even though defendant failed to plead that defense, and noting that “principles of preclusion involve” not only “the rights and interests of the parties,” but also “important interests of the public and the courts in avoiding repetitive litigation and potentially inconsistent decisions”). End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2024 WL 4635337 The core of Moore's complaint concerns the deterioration Only the Westlaw citation is currently available. of her friendship of “10+ years” with Ms. Saucier and United States District Court, S.D. New York. her family (id. at 30), apparently beginning when Saucier pressured Moore to visit her home for Thanksgiving in 2020 Charisse S. MOORE, Plaintiff, (see, e.g., id. at 22). Following that request, Moore claims v. that Saucier behaved toward her in a manner she found FOX NEWS, et al., Defendants. unsettling. For example, sometime in 2021, Saucier allegedly “asked [Moore] if she could look at [Moore's] financials”— 24-CV-5470 (JPO) a request that left Moore “stunned and intrigued.” (Id. at 23.) Moore alleges that Saucier made uncomfortable comments Signed October 30, 2024 “on Judaism” including “stating ‘get her, she is Jewish!’ out of nowhere.” (Id. at 24 (emphasis omitted).) Later, she claims Attorneys and Law Firms that Saucier “sent [her] text messages when [she] moved to Smyrna, Georgia, that if [she] ever needed anything to Charisse S. Moore, New York NY, Pro Se. please feel free to reach out.” (Id. at 54.) In August 2021, Moore spoke with Saucier about Saucier's “joining the Fox News team and how Fox News has changed.” (Id. at 55.) OPINION AND ORDER In November 2021, Moore “[s]pent the night at ... [the] Saucier[s'] house at Ryanne's insistence.” (Id. at 55.) J. PAUL OETKEN, United States District Judge: *1 Plaintiff Charisse S. Moore, proceeding pro se, brings Over time, Ms. Moore alleges, the relationship deteriorated this action against Defendants Fox News and Ryanne Duffie further. Moore “strongly believe[s] that,” on February 9, Saucier, invoking the Court's federal question jurisdiction. By 2022, “[Saucier] recorded [her] therapy session.” (Id. at 30.) order dated August 12, 2024, Chief Judge Laura Taylor Swain On February 17, 2022, Saucier allegedly “contacted the Cobb granted Moore's request to proceed in forma pauperis, that County Police Department to perform a ‘wellness check’ on is, without prepayment of fees. On September 20, 2024, the [her], due to the fact that [she] did not return [her] phone calls, Court accepted assignment of this action as related to Moore voicemails and/or emails.” (Id. at 31.) Moore then “blocked ... v. Stripe, No. 24-CV-2799 (JPO). For the reasons that follow, Saucier's phone number[ ] and email address[ ], as of January/ the complaint is dismissed. February 2022,” and left town to “visit [her] cousin ... in Charlotte, North Carolina.” (Id.) I. Background *2 After moving to North Carolina, Ms. Moore alleges The following facts are drawn from Plaintiff's Complaint that “there were HIDDEN CAMERAS installed in [her] (ECF No. 1 (“Compl.”)), and documents integral to it, see Sira apartment” (id. at 38 (capitalization in original)), that Saucier v. Morton, 380 F.3d 57, 67 (2d Cir.2004), and are presumed hired a “Mickey Mouse impersonator” (id. at 56), that true for purposes of this opinion. All reasonable inferences unidentified men “watched [her] take a shower” (id. at 57), are drawn in Plaintiff's favor. Fink v. Time Warner Cable, 714 that a “white woman with blonde hair and a little Poodle F.3d 739, 740-41 (2d Cir. 2013). stared at me in the elevator and did not say a word” (id.), and that she was “[d]oxxed while paying for Dolce & Gabanna Moore alleges that Defendants are responsible for, inter [sic]” because “[t]he cashier asked for [her] phone number alia, “federal hate crimes,” “interstate stalking,” and “human and screamed [it] across the entire store” (id. at 58). trafficking.” (Compl. at 2 (capitalization omitted).) In the fact section of the complaint, Moore writes, “[p]lease see Based on these and other events, Moore alleges that she attached” (id. at 5), referring to 69 pages of documents, some is “the victim of a multi-year stalking scheme.” (Id. at of which she appears to have prepared herself. In the interest 10.) She alleges that this stalking scheme is, in part, being of judicial economy, the Court will not endeavor to faithfully perpetrated by the “British Monarchy” and lists among her reproduce every allegation contained in those documents in “[p]otential [s]talkers” the Saucier family, various members this opinion, but rather offers a representative sample. of Moore's own family, and the Canadian pop musician Claire 2023, she alleges, while at the Disney Yacht Club Resort based on an indisputably meritless legal theory.”) (quotation in Orlando, “[t]he British Monarchy and British Monarchy marks and citation omitted). alliance stalkers had [her] curtsy in the shower for six (6) hours with the brain hijacking Unauthorized Non-Consented experiment ... and said that [there] would be whippings for III. Discussion not curtsying correctly.” (Id. at 72.) *3 Even construing Moore's pleadings with the “special solicitude” due to pro se parties, Triestman, 470 F.3d at 475, Moore's complaint also contains several profanity-laced the Court concludes that the allegations do not plausibly comments about Defendants. For example, she states: “Sitting allege an actionable violation of her rights. The Court must with my legs crossed deploys Dan Saucier1 to spit in my not dismiss a complaint simply because the facts alleged appear to be “unlikely,” Denton, 504 U.S. at 33, but a finding vagina, because it does not align with British Monarchy of factual frivolousness is warranted when the facts alleged unknown rules and regulations—that I am not a part of!” (id. are “clearly baseless,” “fanciful,” “fantastic,” “delusional” at 68), and accuses the members of the Saucier family of being or “wholly incredible,” “whether or not there are judicially “obsessed with Charisse S. Moore's vagina” (id.). noticeable facts available to contradict them.” Id. at 32-33; see also Livingston, 141 F.3d at 437. “Plaintiff's beliefs II. Legal Standard —however strongly [s]he may hold them—are not facts.” The Court must dismiss an in forma pauperis complaint, or Morren v. N.Y. Univ., No. 20-CV-10802, 2022 WL 1666918, any portion of the complaint, that is frivolous or malicious, at *18 (S.D.N.Y. Apr. 29, 2022) (citation omitted), report and fails to state a claim on which relief may be granted, or recommendation adopted, 2022 WL 1665013 (S.D.N.Y. May seeks monetary relief from a defendant who is immune from 25, 2022). such relief. 28 U.S.C. § 1915(e)(2)(B); see also Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court finds that, because Plaintiff does not provide any The Court must also dismiss a complaint when the Court lacks plausible factual support for her claims of stalking, they rise to subject matter jurisdiction of the claims raised. See Fed. R. the level of the irrational and must be dismissed as frivolous. Civ. P. 12(h)(3). See Kraft v. City of New York, 823 F. App'x 62, 64 (2d Cir. 2020) (summary order) (holding that “the district court did not While the law mandates dismissal on any of these grounds, the err in sua sponte dismissing the complaint as frivolous,” based Court is obliged to construe pro se pleadings liberally, Harris on the plaintiff's allegations that he had “been the subject of v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them 24-hour, multi-jurisdictional surveillance by federal ‘fusion to raise the “strongest [claims] that they suggest,” Triestman centers’ and the New York State Intelligence Center, which v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) put a ‘digital marker’ on him in order to collect his personal (internal quotation marks and citations omitted) (emphasis in data and harass him”). original). But the “special solicitude” in pro se cases, id. at 475 (citation omitted), has its limits: to state a claim, pro se District courts generally grant a pro se plaintiff an opportunity pleadings still must comply with Rule 8 of the Federal Rules to amend a complaint to cure its defects, but leave to amend is of Civil Procedure, which requires a complaint to make a short not required where it would be futile. See Hill v. Curcione, 657 and plain statement showing that the pleader is entitled to F.3d 116, 123 (2d Cir. 2011); Salahuddin v. Cuomo, 861 F.2d relief. Fed. R. Civ. P. 8(a)(2). 40, 42 (2d Cir. 1988). Here, Moore's allegations are “vague” and “incomprehensible,” and the Court cannot discern any A claim is frivolous when it “lacks an arguable basis either claims that are not “frivolous on their face.” Cf. Salahuddin, in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 861 F.2d at 43. Because the defects in Moore's complaint (1989), abrogated on other grounds by Bell Atl. Corp. v. cannot be cured, the Court declines to grant her leave to Twombly, 550 U.S. 544 (2007); see also Denton v. Hernandez, amend. See 28 U.S.C. § 1915(e)(2)(B)(i). 504 U.S. 25, 32-33 (1992) (holding that a “finding of factual frivolousness is appropriate when the facts alleged rise to the IV. Warning level of the irrational or the wholly incredible”); Livingston, Plaintiff has filed multiple suits with claims similar to 141 F.3d at 437 (“An action is ‘frivolous’ when either: (1) the CV-2799 (S.D.N.Y. Apr. 11, 2024) (suing Stripe, Inc. based The Court warns Plaintiff that, should she file future actions in this court that are frivolous or duplicative, the Court may in part on the same underlying stalking allegations); Moore v. enter an order barring her from filing new actions in forma KPMG, No. 24-CV-5471 (S.D.N.Y. July 15, 2024) (claims of pauperis unless she receives permission from the Court. See interstate stalking); Moore v. Scenic Prods., No. 24-CV-5413 28 U.S.C. § 1651. (S.D.N.Y. July 11, 2024) (same); Moore v. Georgia, No. 24-CV-5545 (S.D.N.Y. July 18, 2024) (same); Moore v. The Court certifies under 28 U.S.C. § 1915(a)(3) that any Vanderbilt Univ., No. 24-CV-5533 (S.D.N.Y. July 17, 2024) appeal from this order would not be taken in good faith, and (same). therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, Plaintiff is warned that, should she file future actions in this 444-45 (1962). court that are duplicative or frivolous, the Court may enter an order barring her from filing new actions in forma pauperis unless she receives permission from the Court to do so. See *4 SO ORDERED. 28 U.S.C. § 1651. All Citations V. Conclusion Not Reported in Fed. Supp., 2024 WL 4635337 Plaintiff's complaint is hereby dismissed with prejudice as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i). Footnotes 1 Presumably Dan Saucier is Ryanne Saucier's husband. (See, e.g., Compl. at 23 (referring to Ryanne and Dan Saucier's child); id. at 55 (stating that the couple lives together).) End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2024 WL 4149959 (internal quotation marks and citations omitted) (emphasis in Only the Westlaw citation is currently available. original). But the “special solicitude” in pro se cases, id. at United States District Court, S.D. New York. 475 (citation omitted), has its limits – to state a claim, pro se pleadings still must comply with Rule 8 of the Federal Rules Charisse Samantha MOORE, Plaintiff, of Civil Procedure, which requires a complaint to make a short v. and plain statement showing that the pleader is entitled to State of GEORGIA, et al., Defendants. relief. 24-CV-5545 (LTS) A claim is frivolous when it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 324-25 Signed September 5, 2024 (1989), abrogated on other grounds by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007); see also Denton v. Hernandez, Filed September 11, 2024 504 U.S. 25, 32-33 (1992) (holding that “finding of factual frivolousness is appropriate when the facts alleged rise to the Attorneys and Law Firms level of the irrational or the wholly incredible”); Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. Charisse Samantha Moore, New York, NY, Pro Se. 1998) (“[A]n action is ‘frivolous’ when either: (1) the factual contentions are clearly baseless ...; or (2) the claim is based on an indisputably meritless legal theory.”) (internal quotation ORDER OF DISMISSAL marks and citation omitted). LAURA TAYLOR SWAIN, Chief United States District Judge: BACKGROUND *1 Plaintiff, acting pro se, brought this complaint invoking the Court's federal question jurisdiction. By order dated July In her initial complaint, Plaintiff states that she is seeking 23, 2024, the Court granted Plaintiff's request to proceed “a broader conversation on stalking and how mental health in forma pauperis, that is, without prepayment of fees. On practitioners can help their clients through the process.” (ECF August 26, 2024, Plaintiff filed an amended complaint. For 1 at 8.) She also seeks damages from the States of Georgia and the reasons set forth below, the Court dismisses the amended North Carolina. Plaintiff sues Georgia Secretary of State Brad complaint. Raffensperger and North Carolina Secretary of State Elaine Marshall; Tara Duffie, a psychiatric mental health nurse at Vanderbilt University; Ingrid Jones, a psychiatric mental health counselor from Broward College in Florida; and STANDARD OF REVIEW Ryanne Saucier of Scenic Productions and Cable Network.1 The Court must dismiss an in forma pauperis complaint, or any portion of the complaint, that is frivolous or malicious, *2 Plaintiff invokes the Court's federal question doctrine fails to state a claim on which relief may be granted, or and states that her claims involve “interstate stalking,” and seeks monetary relief from a defendant who is immune from “human trafficking.” (Id. at 2.) She also cites 18 U.S.C. § 249, such relief. 28 U.S.C. § 1915(e)(2)(B); see Livingston v. and the Hate Crime Prevention Act. She states that her claims Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). arose in Georgia, North Carolina, California, New York, and The Court must also dismiss a complaint when the Court lacks Ireland, beginning in 2021. subject matter jurisdiction of the claims raised. See Fed. R. Civ. P. 12(h)(3). The complaint is 144 pages long. Plaintiff describes reports that she has filed with the Federal Bureau of Investigation While the law mandates dismissal on any of these grounds, the (FBI) regarding “multi-year Interstate Stalking.” (Id. at 10.) Court is obliged to construe pro se pleadings liberally, Harris Plaintiff alleges, for example: v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them OF SIGNIFICANT IMPORTANCE: In 2022, my Apple MacBook Air was hacked with 2022 during the wellness check and he strongly encouraged documents of concern related to stalkers, to include but not and watched me send an email to Dan (Daniel) Saucier limited to: Growth_2022.04 Document - Where I identified regarding the lack of response to his and Ryanne's calls. [ ] as a and her husband as a [ ], . These were my personal thoughts and briefly listed within a Microsoft February 19, 2022: Due to the issues with Dan Saucier Word document on my Apple MacBook Air. and Ryanne Duffie Saucier, I went to visit my cousin Andre Gilgeous in Charlotte, North Carolina. “Covert Narcissist disguised as altruism” - Taylor Swift, Anti-Hero (Id. at 61.) Ryanne Duffie Saucier's favorite artist is Taylor Swift On August 26, 2024, Plaintiff filed an amended complaint. In the caption of the amended complaint, Plaintiff names NOTE: Ryanne Duffie Saucier and Dan Saucier were the States of Georgia and North Carolina, Scenic Cable adamant about building a relationship with Laura Norton Network & Productions, and Vanderbilt University. In the and Mayor Derek Norton, for unknown reasons. body of the amended complaint, Plaintiff lists numerous (Id. at 53.) additional defendants, including North Carolina Governor Roy Cooper, Fulton County District Attorney Fani Willis, Plaintiff further alleges: Georgia Governor Brian Kemp, Elon Musk, and many others. Plaintiff indicates that her claims arose from 2018 Jax, My Maltipoo was attacked due to stalking to the present, throughout the United States, and in the United Kingdom and Guatemala. Plaintiff brings claims for Banfield Pet Hospital in Charlotte, North Carolina “interstate stalking as part of the Violence Against Women Bond Vet Act (VAWA),” “Conspiracy Against Rights, 18 U.S.C. § 241, as part of Hate Crimes,” “criminal interference with right to Urgent Vet fair housing,” and more. Unauthorized Non-Consented Dossier creation of Charisse S. Moore based on Psychology, Business, Technology, DISCUSSION Medical information to leverage Economic Espionage for stalkers *3 Even when the Court construes Plaintiff's pleadings with the “special solicitude” due to pro se pleadings, Triestman, (Id.) 470 F.3d at 475, the Court finds that the allegations do not plausibly allege a violation of Plaintiff's rights. The Court Plaintiff describes various incidents: must not dismiss a complaint simply because the facts alleged appear to be “unlikely,” Denton, 504 U.S. at 33, but a finding Thursday, February 17, 2022: Ryanne Duffie Saucier and of factual frivolousness is warranted when the facts alleged Dan Saucier contacted the Cobb County Police Department are “clearly baseless,” “fanciful,” “fantastic,” “delusional” to perform a “wellness check” on me, due to the fact that I or wholly incredible, “whether or not there are judicially did not return their phone calls, voicemails and/or emails [.] noticeable facts available to contradict them.” Id. at 32-33; The Responding Officer to the wellness check was Officer see Livingston, 141 F.3d at 437. “Plaintiff's beliefs – however Glen C. Meyer - Cobb County, GA. strongly [s]he may hold them – are not facts.” Morren v. New York Univ., No. 20-CV-10802 (JPO) (OTW), 2022 WL Note: I blocked both Ryanne Duffie Saucier and Dan 1666918, at *18 (S.D.N.Y. Apr. 29, 2022) (citation omitted), Saucier's phone numbers and email addresses, as of report and recommendation adopted, 2022 WL 1665013 January/ February 2022. (S.D.N.Y. May 25, 2022). Note: Officer Glen C. Meyer, Cobb County Police Department, was very nice and provided his personal cell The Court finds that, because Plaintiff does not provide any phone number, as he is familiar with Domestic Violence plausible factual support for her claims of stalking, they rise to 2020) (summary order) (holding that “the district court did not court that are duplicative or frivolous, the Court may enter an order barring her from filing new actions in forma pauperis err in sua sponte dismissing the complaint as frivolous,” based unless she receives permission from the court to file a new on the plaintiff's allegations that he had “been the subject of 24-hour, multi-jurisdictional surveillance by federal ‘fusion civil action. See 28 U.S.C. § 1651. centers’ and the New York State Intelligence Center, which put a ‘digital marker’ on him in order to collect his personal data and harass him”). CONCLUSION District courts generally grant a pro se plaintiff an opportunity Plaintiff's amended complaint is dismissed as frivolous under to amend a complaint to cure its defects but leave to amend is 28 U.S.C. § 1915(e)(2)(B)(i). not required where it would be futile. See Hill v. Curcione, 657 F.3d 116, 123-24 (2d Cir. 2011); Salahuddin v. Cuomo, 861 The Court warns Plaintiff that, should she file future actions F.2d 40, 42 (2d Cir. 1988). Because the defects in Plaintiff's in this court that are frivolous or duplicative, the Court may amended complaint cannot be cured with further amendment, enter an order barring her from filing new actions in forma the Court declines to grant Plaintiff leave to amend and pauperis, unless she receives permission from the court to file dismisses the action as frivolous. See 28 U.S.C. § 1915(e)(2) the new civil action. See 28 U.S.C. § 1651. (B)(i). The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose WARNING of an appeal. See Coppedge v. United States, 369 U.S. 438, Plaintiff has filed multiple suits with claims similar to those 444-45 (1962). brought in this action, some of which also name the same defendants. See, e.g., Moore v. Vanderbilt Univ., No. 1:24- The Court directs the Clerk of Court to enter judgment in this CV-5533, 1 (S.D.N.Y. filed June 17, 2024) (suing Ryanne action. Duffie Saucier); Moore v. Scenic Productions, No. 1:24- CV-05413, 1 (S.D.N.Y. July 11, 2024) (suing Ryanne Duffie SO ORDERED. Saucier); Moore v. KPMG, No. 1:24-CV-05471, 1 (S.D.N.Y. filed July 15, 2024) (claims of interstate stalking); Moore v. All Citations Fox News, No. 1:24-CV-05470, 1 (S.D.N.Y. July 15, 2024) (suing Ryanne Duffie Saucier). Not Reported in Fed. Supp., 2024 WL 4149959 Footnotes 1 Plaintiff references her recent cases against some of the same defendants. See Moore v. Vanderbilt Univ., No. 1:24-CV-5533, 1 (S.D.N.Y. filed June 17, 2024) (suing Ryanne Saucier, Elon Musk, and others); Moore v. Scenic Prods., No. 1:24-CV-05413, 1 (S.D.N.Y. July 11, 2024) (suing Ryanne Saucier and others). End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2022 WL 1666918 under Civil Rights Law § 79-n (ECF 25); and (9) negligent Only the Westlaw citation is currently available. infliction of emotional distress against both Defendants. (ECF United States District Court, S.D. New York. 25). Plaintiff seeks “compensatory damages in the sum of $100,000,000 [f]or emotional and psychological distress. Darwyn M. MORREN, Plaintiff, [P]lus any punitive damages which is exclusive of the v. $100,000,000 demand.” (Am. Compl. 6). NEW YORK UNIVERSITY, UCATS Local 3882, Defendants. II. PROCEDURAL HISTORY No. 20-CV-10802 (JPO) (OTW) Plaintiff filed a Charge with the U.S. Equal Employment Opportunity Commission (“EEOC”) on August 25, 2020. Signed 04/29/2022 (ECF 2). Plaintiff alleges that he received his Rights of Notice to Sue from the EEOC, dated September 21, 2020, on Attorneys and Law Firms September 28, 2020. (ECF 2). Darwyn M. Morren, Westbury, NY, Pro Se. On December 18, 2020, Plaintiff filed his pro se Complaint against Defendants NYU and UCATS. (ECF 2). The Jessica Rose Schild, Robert Mossman Tucker, Ogletree Honorable John P. Cronan referred this case to me for General Deakins, New York, NY, for Defendant New York University. Pretrial Management and Dispositive Motion on April 14, Gregory Ainsley, Robert T. Reilly, Serge Ambroise, 2021.1 (ECF 15). Plaintiff filed his First Amended Complaint Ambroise Law, Rachel Sonia Paster, Cohen, Weiss and Simon on June 4, 2021, which adds additional details, but no LLP, New York, NY, for Defendant Ucats Local 3882. additional claims. (ECF 25 (hereinafter “Am. Compl.”)). On June 9, 2021, the parties agreed to a briefing schedule for Defendants’ motions to dismiss the Amended Complaint. REPORT AND RECOMMENDATION (ECF 29, 33). Plaintiff requested a 31-day extension of the briefing schedule because of health concerns, which I ONA T. WANG, United States Magistrate Judge: granted on July 7, 2021. (ECF 37, 38). The day Defendants’ submissions were due (August 9, 2021), Plaintiff attempted *1 To the Honorable J. PAUL OETKEN, United States to amend his First Amended Complaint, without the Court's District Judge: leave and without Defendants’ consent. (ECF 40, 43). I denied I. INTRODUCTION this request as untimely.2 (ECF 43). Plaintiff Darwyn M. Morren brings this action against the defendants, New York University (“NYU”), and UCATS Defendants filed their respective Motions to Dismiss on Local 3882 (“UCATS”). (ECF 2). Plaintiff alleges that: (1) August 9, 2021, in accordance with the amended briefing Defendants discriminated against Plaintiff on the basis of schedule. (ECF 46, 48). Ten days later, Plaintiff sought race and national origin under Title VII of the Civil Rights another extension to file his opposition, which I granted.3 Act of 1964, 42 U.S.C. § 1981, the New York City Human (ECF 55, 60). Plaintiff filed his opposition on October 7, Rights Law (“NYCHRL”), and the New York State Human 2021, and Defendants filed their replies on October 28, 2021. Rights Law (“NYSHRL”); (2) Defendants discriminated (ECF 65, 68, 70). against Plaintiff under the Americans with Disabilities Act (“ADA”), the NYCHRL, and the NYSHRL; (3) Defendants violated the Family and Medical Leave Act of 1993; (4) III. FACTUAL BACKGROUND4 NYU breached a contract by terminating him; (5) UCATS *2 Plaintiff identifies as an “Afro-Caribbean male (black/ breached the Collective Bargaining Agreement (“CBA”) [A]frican descent), of Trinidadian [n]ational [o]rigin” with with NYU by failing to submit grievances on his behalf; ADHD. (Am. Compl. 22).5 He began working at NYU's (6) UCATS breached their duty of fair representation to Bobst Library in November 2016 as an “ADRSS” (Access Plaintiff (ECF 2, ECF 25); (7) Defendants conspired to Delivery Resource Sharing Services) assistant. (Am. shelving, unshelving, and stacking books; creating and employment” in November 2016 that he had plans to attend managing patrons’ accounts; working in the course reserves an annual “Cultural and Religious Festival/carnival [sic]” in section amongst other responsibilities.” (Am. Compl. 23 at ¶ Trinidad. (Am. Compl. 24 at ¶ 6). Before he began working, 1). Upon starting work, Plaintiff joined UCATS, where Linda Plaintiff alleges that he was told that he could attend this Wambaugh was his union representative. (Am. Compl. 23 event, and that he would be paid during his absence.11 (Am. at ¶ 2). NYU terminated Plaintiff's employment effective on Compl. 24 at ¶ 6). Then, in February 2017, days before December 13, 2019. (Am. Compl. 33 at ¶ 49). attending the “Cultural and Religious Festival/carnival in Trinidad,” “they” told Plaintiff that he would not be paid for the time off he was taking.12 (Am. Compl. 24 at ¶ 6). Plaintiff 1. Plaintiff is Assigned a Less Convenient Work Schedule. went to the festival, but “was accused of misusing sick time” and upon his return, was told that he would be terminated. Plaintiff reported to several individuals when he worked at (Am. Compl. 24 at ¶ 8). “[Plaintiff] explained that [he] was NYU. (Am. Compl. at 23 ¶ 1). His immediate supervisor was only doing what Rodriguez told [him] to do, and that in any Patricia Warrington. (Am. Compl. 23 at ¶ 1). Plaintiff and event, [he] had a doctor's note.” (Am. Compl. 24 at ¶ 8). Warrington both reported to the circulation manager, Deborah Ultimately, Plaintiff was not “disciplined.” (Am. Compl. 24 Caesar, who was later replaced by Frances Rodriguez. (Am. at ¶ 8). Compl. 23 at ¶ 1). Plaintiff also alleges that in July 2019, he requested time In December 2016, Plaintiff met with “management”6 and off for his vacation to Trinidad in February 2020, which was told that he “exceeded expectations” in performance and Rodriguez denied. (Am. Compl. 15). Plaintiff alleges that attendance. (Am. Compl. 23 at ¶ 3). At this meeting, Plaintiff Caesar had approved Plaintiff's request the past three years complained that two coworkers were “affecting teamwork/ (which is inconsistent with his earlier allegations). (Am. morale,” and were “ma[king] [the workplace] a hostile work Compl. 15). Plaintiff halved the vacation days he initially environment.”7 (Am. Compl. 23 at ¶ 3). “Management” requested and later cancelled his flight because with fewer responded by telling Plaintiff, “don't worry about it, and just days, the cost was higher. (Am. Compl. 15). worry about yourself.”8 (Am. Compl. 23 at ¶ 3). Around December 2016 or January 2017, Gary Speizale, 3. Plaintiff's Probation is Extended. Plaintiff's coworker, complained about the shift schedule. (Am. Compl. 23 at ¶ 4). Plaintiff alleges that, as a result, In February 2017, Plaintiff complained to NYU and UCATS Plaintiff's schedule was changed so that he no longer “that [his] probation period had been extended.” (Am. Compl. had consecutive days off, while his coworkers, including 24 at ¶ 7). Caeser and Rodriguez told Plaintiff that the Speziale, did. (Am. Compl. 23 at ¶ 4). Plaintiff complained extension was because of his “performance issues.” (Am. to Warrington, Caesar, and Rodriguez that the new schedule Compl. 24 at ¶ 7). Plaintiff was unaware of any performance was unfair, but “they” told Plaintiff that the schedule was issues because he had allegedly been told “numerous of times based on seniority, and Plaintiff had the “least amount of [sic] that [he] performed [his] job duties beyond expectations seniority” among his coworkers because he was “the most and [his] attendance was perfect, unlike others on probation recent hire.” (Am. Compl. 23 at ¶ 4). Plaintiff complained to and ... their probation wasn't extended.” (Am. Compl. 24 at ¶ Wambaugh about the schedule, explaining that he was not the 7). Plaintiff also complained about his “coworkers not getting most recent hire, but she also said that Speizale was senior to along with one another” at this time. (Am. Compl. 24 at ¶ 7). Plaintiff.9 (Am. Compl. 23–24 at ¶ 4). The Union did not file In response, Rodriguez told Plaintiff, “You don't fit the culture here, You have to fit the culture, you got another chance, a grievance on Plaintiff's behalf.10 (Am. Compl. 24 at ¶ 4). you better not mess it up this time around.” (Am. Compl. 24 at ¶ 7). Plaintiff alleges that at the time, Warrington added, “Why don't you just go back to Trinidad to live since you[‘re] 2. Plaintiff is Reprimanded for Taking a Previously- always complaining about what we do here?” (Am. Compl. Scheduled Trip to a “Religious Festival.” 15). When Plaintiff told Wambaugh about this interaction, she want any complaints.”13 (Am. Compl. 24 at ¶ 7). Plaintiff response, Wambaugh allegedly said, “they just don't like ultimately completed his probationary period in April 2017. you” and “they don't have to be nice to you.” (Am. Compl. (Am. Compl. 24 at ¶ 7). 9). Wambaugh did not file a grievance about Plaintiff's complaint. (Am. Compl. 9). Plaintiff filed formal written complaints about the above 4. Plaintiff Grows Increasingly actions in June and July 2019 to Rodriguez and Caesar, Suspicious of His Coworkers and Others. which complaints were then forwarded to Human Resources (“HR”). (Am. Compl. 25–26 at ¶ 15). Plaintiff did not *4 Plaintiff alleges that one to two months into his feel comfortable discussing the matter with HR, however, employment (in December 2016 or January 2017), Plaintiff because he “believed[d] that management was involved in the “complained numerous times about coworkers making false mistreatment.” (Am. Compl. 26 at ¶ 15). Around this time, statements and claims in order to get [him] fired and sabotage Plaintiff also complained to Wambaugh that: (1) a new student [his probation].” (Am. Compl. 24 at ¶ 5). Between 2017 coworker was stalking Plaintiff; and (2) Caesar was dating and 2018, Plaintiff “repeatedly complained to Caesar that Rodriguez” was trying to get him “disciplined or fired.” (Am. a coworker who was harassing Plaintiff.14 (Am. Compl. 26 Compl. 24 at ¶ 8). Caesar's response was that Plaintiff should at ¶¶ 16, 17). Wambaugh said that the Union could not file “not worry about it.” (Am. Compl. 24 at ¶ 8). Plaintiff does a grievance about the stalking, and that the Union and NYU not state who else, if anyone, tried to get him fired or what knew about Caesar's relationship, but “there was nothing statements Rodriguez or others made. that could be done.” (Am. Compl. 26 at ¶¶ 16, 17). A few weeks later, Rodriguez took over Caesar's role as circulation On three occasions between late 2018 and April 1, 2019, manager and Caesar began working in HR. (Am. Compl. 26 Plaintiff complained to Rodriguez and Caesar that “some at ¶ 18). full-time coworkers seemed to be manipulating students and student-workers to do illegal things, who worked in the “At around the same time,” Plaintiff alleges “that [his] library, to look at [him] and treat [him] in a different or electronic devices and personal, NYU email accounts and suspicious way.” (Am. Compl. 25 at ¶¶ 10–12). Plaintiff also other accounts had been hacked by the Employer.”15 (Am. complained about Chris Crowe, a Union Representative (who Compl. 26 at ¶ 19). Plaintiff believes he was hacked because also allegedly lived with Speizale), engaging in this behavior. on one occasion Plaintiff could not log into his NYU email, (Am. Compl. 25 at ¶ 11). Plaintiff further complained that and on another occasion, he “learned that an NYU VPN had on multiple occasions he was being “stalked” by coworkers been created with [his] work ID and password” when he was and students, and mistreated by students, staff, and professors. not at work. (Am. Compl. 26 at ¶ 19). (Am. Compl. 25 at ¶ 13). This included allegations that: (1) “students came into the library and pointed and laughed at *5 After moving apartments in July 2019, Plaintiff alleges [Plaintiff]”; (2) students “were recording [Plaintiff]”; and (3) that NYU was sending people to stalk his whereabouts.16 a student bumped into him and another student recorded the (Am. Compl. 26–27 at ¶ 20). In response to Plaintiff's incident, “almost as if to catch [Plaintiff] doing something to complaints about this behavior, Warrington told Plaintiff “that the student who bumped [him].” (Am. Compl. 25 at ¶ 13). [he] was paranoid,” and Wambaugh “asked [Plaintiff] what Plaintiff verbally reiterated these complaints to Rodriguez this had to do with the Union.” (Am. Compl. 27 at ¶ 20). and Caesar for the next two months. (Am. Compl. 25 at ¶ Wambaugh did not file a grievance. (Am. Compl. 27 at ¶ 20). 14). Rodriguez and Caesar did not escalate the complaints; Plaintiff alleges, however, that after he complained about the rather, Caesar called Plaintiff “paranoid.” (Am. Compl. 25 stalking, “the Employer changed [his] address in its system at ¶ 14). Plaintiff also complained to Wambaugh, who told back to [his] old address in the Bronx” even though he “never Plaintiff that there was “no grievance[s] that could be filed gave them [his] Queens address, but [he] ha[s] mailings from about [his] coworkers, students, and professors doing this to the Union [a]nd NYU with [his] Queens [a]ddress.” (Am. [him].” (Am. Compl. 25 at ¶ 14). Compl. 27 at ¶ 21). At some unspecified time, Plaintiff alleges that he complained At some unspecified time, Plaintiff told Rodriguez that he was that Plaintiff receive treatment from his psychiatrist regarding In the days following this interaction, Plaintiff alleges that his sleeping issues.17 (Am. Compl. 38 at ¶ 72). “faculty members came up to [him] on several occasions and nervously told [him] why they weren't using their Course Reserve items.” (Am. Compl. 28 at ¶ 28). Plaintiff also alleges that items were showing up “on [his] account when [he] 5. Plaintiff Arrives at Work Late and Takes Time Off. wasn't doing Course Reserve work.”22 (Am. Compl. 28 at ¶ On September 30, 2019, Rodriguez told Plaintiff that he 28). noticed Plaintiff had been “late a couple times” and warned Plaintiff that if it continued he would be “disciplined.” (Am. Compl. 27 at ¶ 23). Plaintiff responded that he “always got 6. Plaintiff is Suspended for Fighting at Work. to the desk on time, as per [his] schedule, to deal with library patrons,” but Rodriguez said that “didn't matter.” (Am. On November 1, 2019, Plaintiff alleges that Olivia Compl. 27 at ¶ 23). Plaintiff told Rodriguez “that other was “staring over [his] shoulder and following [his] employees had more late arrivals than [he] did, [and] were movements.” (Am. Compl. 28–29 at ¶ 29). Plaintiff not disciplined,” but Rodriguez “told [Plaintiff] not to worry confronted Olivia about this behavior and Olivia responded about other workers.” (Am. Compl. 27 at ¶ 23). Plaintiff by “aggressively trying to [i]ncite a fight [with Plaintiff] expressed to Rodriguez that he was “going through a lot,” and [saying], ‘So [w]hat's up?!’ ” (Am. Compl. 29 at ¶ 29). including that he was being stalked to and from work, his Plaintiff began to walk away when another coworker, Robert devices were being hacked, and he was “traumatized by the Jameson, ran toward Plaintiff and “grabbed and/or pushed harassment at work.”18 (Am. Compl. 27 at ¶ 23). Rodriguez [Plaintiff].” (Am. Compl. at 29 ¶ 29). Plaintiff claims to have suggested that Plaintiff apply for FMLA leave.19 (Am. self-recorded audio of this interaction. (Am. Compl. 29 at ¶ 31). Compl. 27 at ¶ 23). Plaintiff alleges that he applied for FMLA leave in early October 2019. (Am. Compl. 28 at ¶ 25). That same day, Plaintiff was working alongside Adjoa Walker, a student-worker. (Am. Compl. 29 at ¶ 30). Plaintiff At another unspecified time, Plaintiff received “troubling repeatedly asked Walker to help him check out customers texts” from a number he believes was “pretending to be until Walker began crying. (Am. Compl. 29 at ¶ 30). Plaintiff someone else in [his] contacts.” (Am. Compl. 28 at ¶ 26). asked whether Walker was okay, and “suspect[ed] that she The texts made “derogatory statement[s],20 “question[ed]” was crying because she was torn between harassing and whether Plaintiff was actually sick, and “stat[ed] that [his] agitating [him], at the request of the Employer, and doing her meds are the reason [he] can't get any sleep.” (Am. Compl. 28 job.” (Am. Compl. 29 at ¶ 30). Later that day, Plaintiff was at ¶ 26). Plaintiff intimates that Rodriguez is the unidentified called to HR where he met with Katie O'Brien, the Assistant sender because he told Rodriguez he was not getting any Director of HR, and Enrique Yanez, the Director of HR.23 sleep “because of the ongoing harassment from NYU.” (Am. (Am. Compl. 29 at ¶ 31). The exact order of the following Compl. 28 at ¶ 26). events is unclear: *6 In early October 2019, Plaintiff took some sick days. • O'Brien and Yanez left the room during the meeting (Am. Compl. 28 at ¶ 27). On October 12, 2019, Plaintiff's because a security guard asked to speak with Plaintiff coworker, Freddie Olivia, approached Plaintiff, “put [him] alone. (Am. Compl. 29 at ¶ 31). in a chokehold from behind,” and asked him where he had been the past few days.21 (Am. Compl. 28 at ¶ 27). • Plaintiff told the security guard that “[he] had a legal right Plaintiff told Olivia that he was “concerned” that he was to union representation if they were going to discipline being harassed at work, and also complained that his “work [him], and that [he] didn't want to start the meeting” in the Course Reserve Department ... was not being used without representation. (Am. Compl. 29 at ¶ 31). effectively” because no one would “ever take the books outor • When Plaintiff requested his Union Representative join [sic] barely.” (Am. Compl. 28 at ¶ 27). Plaintiff does not the meeting, the meeting “was called to an end.” (Am. describe what his “work in the Course Reserve Department” Compl. 29 at ¶ 31). • The security guard escorted Plaintiff out of the room. clearly allege whether his suspension was because of the fight (Am. Compl. 29 at ¶ 31). with Jameson or his interaction with Walker. (Am. Compl. No grievance was filed by Wambaugh following this 30 at ¶ 36). Wambaugh also informed O'Brien “that the incident.24 (Am. Compl. 29 at ¶ 32). Union was filing a grievance over [his] suspension.” (Am. Compl. 30 at ¶ 38). The grievance concerned the November 19, 2019 suspension and the final written warning. HR *7 Plaintiff then alleges a series of HR meetings involving notified Plaintiff on December 9, 2019 that “the November Yanez, O'Brien, Rodriguez and possibly others, but does not 19 grievance had been closed, and that the Employer was coherently state the topic of each meeting or the events at denying the grievance.” (Am. Compl. 31 at ¶ 41). (ECF 49-2, each meeting. (Am. Compl. 30). On November 6, 2019, a Exhibit 2 (November 21, 2019 Step 2 Grievance) at 59). meeting was scheduled between Plaintiff, Yanez, O'Brien, and a shop steward to discuss the November 1, 2019 incident with Jameson. (Am. Compl. 29–30 at ¶ 33). Plaintiff sent an audio file of the incident to those present. (Am. Compl. 30 at ¶ 33). 7. Plaintiff Suspects Additional Foul Play from Coworkers. From November 6 to November 19, Plaintiff does not state whether he was working, suspended, or on unpaid leave. On November 30, 2019, Plaintiff recognized an application On November 14, 2019, Yanez and O'Brien asked to meet (“app”) on his phone that was also on his NYU work with Plaintiff because they “had new information on the computer, although he claims that he never installed the app. case.” (Am. Compl. 30 at ¶ 34). Plaintiff responded that he (Am. Compl. 31 at ¶ 39).27 was not comfortable coming to the building because of the “[r]egular harassment [he] had been suffering from NYU”, *8 On December 10, 2019, Plaintiff asked Warrington if and that he “was under the weather[ ].” (Am. Compl. 30 he could leave early that day “because [he] wasn't feeling at ¶ 34). On November 18, 2019, Plaintiff was called into good as [he was] being harassed by [his] coworkers, who a scheduled meeting via conference call with Wambaugh were stalking [him].” (Am. Compl. 31 at ¶ 43). Warrington and O'Brien to discuss a complaint Rodriguez made about said no. (Am. Compl. 31 at ¶ 43). Rodriguez then asked Plaintiff “ma[king]” Walker cry. (Am. Compl. 30 at ¶ 35). Plaintiff to attend a meeting with HR. (Am. Compl. 31 at ¶ At the meeting, Plaintiff explained to O'Brien “that [he] just 43). Plaintiff said he needed Wambaugh to represent him, and asked the student to help with the long line which is her the meeting was rescheduled for the next day. (Am. Compl. job.” (Am. Compl. 30 at ¶ 35). O'Brien reminded Plaintiff of 31 at ¶ 44). Plaintiff asked to reschedule to either a different the policy regarding how many patrons must be present for time the next day, or to December 16. (Am. Compl. 31–32 at ¶ him to ask for help (which Plaintiff argued was incorrect). 44). Neither O'Brien, Yanez, nor Rodriguez responded to this (Am. Comp. 30 at ¶ 35). Plaintiff additionally notes that request. (Am. Compl. 32 at ¶ 44). “O'Brien stated that [Rodriguez] said she thinks [Plaintiff] felt guilty about what [he] did to the student, and labeled [his] concerns about the student as ‘small talk.’ ” (Am. Compl. 8. Plaintiff's Employment is Suspended at 30 at ¶ 35). At some point, O'Brien sent Plaintiff an email Least a Second Time, and then Terminated. allowing him to return to work the next day. (Am. Compl. 30 at ¶ 36). In this email, Plaintiff was given a “final” warning.25 Plaintiff does not clearly allege the order of the following (Am. Compl. 30 at ¶ 36). Plaintiff claims that aside from the events: warning about his attendance, “this is the only warning [he] had ever received.” (Am. Compl. 30 at ¶ 36). • On December 11, 2019, Plaintiff “saw some of the same suspicious Amazon IP addresses.”28 (Am. Compl. 32 On November 19, 2019, Plaintiff returned to work. (Am. at ¶ 47). Plaintiff alleges, however, that one of the “IP Compl. 30 at ¶ 37). Plaintiff “immediately” attended a addresses” was “traceable to the Massachusetts Institute meeting with O'Brien, Yanez, and Wambaugh at which of Technology, which is an NYU partner [and that] O'Brien told Plaintiff that he was suspended for three (this IP hacked [Plaintiff's] personal email again on days because [Plaintiff] exhibited threatening and violent 5/21/20).” (Am. Compl. 32 at ¶ 47). • At some point between December 10 and 12, 2019, also asked Wambaugh to “file a grievance alleging ADHD Plaintiff was emailing “multiple parties” about “the discrimination,” which Wambaugh said she would do. (Am. harassment and retaliation that was ongoing” when Compl. at 33 ¶ 51); (ECF 49-2, Exhibit 3 (January 16, 2020 Rodriguez approached Plaintiff and told him he could Step 1 Grievance)). Plaintiff alleges that he “turned down” leave and would be paid for the rest of the time severance and unemployment benefits. (Am. Compl. 33 at ¶ that he was scheduled to work. (Am. Compl. 32 at ¶ 51). 45). Plaintiff again asked Rodriguez the time of the December 11 meeting.29 (Am. Compl. 32 at ¶ 45). *9 On December 20, 2019, Plaintiff reached out to Rodriguez walked away and “about two minutes later Wambaugh about the status of his suspension and termination [Plaintiff] heard her speaking by the entrance of the grievances. (Am. Compl. 33 at ¶ 52). Plaintiff requested a circulation Dept and use the words ‘black man being grievance be filed about the grievance process along with an aggressive.’ ” (Am. Compl. 32 at ¶ 45). Fifteen minutes ADHD discrimination grievance.31 (Am. Compl. 34 at ¶¶ later, two security guards and two NYPD officers arrived 51, 53, 57) On the same day, Peter Lanzo, a New York State at the scene and stated that there was a complaint United Teachers representative, was assigned to Plaintiff's about Plaintiff “being aggressive, and trespassing.” (Am. case. (Am. Compl. 34 at ¶ 54). Plaintiff asked Lanzo to give Compl. 32 at ¶ 45). Plaintiff responded that he worked there and that he was being harassed. (Am. Compl. 32 him access to his NYU email records,32 which Plaintiff was at ¶ 45). O'Brien cancelled the tentatively set December initially denied because he was “rightfully terminated.” (Am. 11, 2019 HR meeting. (Am. Compl. 32 at ¶ 47). Compl. 34 at ¶ 53); (Am. Compl. 36 at ¶ 62). Lanzo responded that he would speak with NYU regarding the email account • Plaintiff states that he was suspended because “the access. (Am. Compl. 36 at ¶ 62). Employer knew, through its control of [his] devices, [he] discovered the Amazon web IP addresses logged into On January 6, 2020, Plaintiff informed Lanzo that the [his] personal and NYU email accounts.” (Am. Compl. grievances UCATS filed were missing important information; 32 at ¶ 47). on January 22, 2020, Plaintiff asked that they be corrected.33 (Am. Compl. 34 at ¶ 56); (Am. Compl. 35 at ¶ 58). • Plaintiff asked Wambaugh “how [he] could be suspended The grievances were amended to reflect this missing without a meeting.” (Am. Compl. 32 at ¶ 47). information34 on January 23, 2020. (Am. Compl. 35 at ¶ 58). On December 14, 2019, Plaintiff saw an email regarding his termination effective on December 13, 2019. (Am. Compl. 33 In May 2020, Plaintiff spoke with Lanzo and Marc Laffer, at ¶ 49). The email stated that “[Plaintiff] denied [a] meeting Lanzo's supervisor, who assured Plaintiff that the grievances with management and HR ... and that [he] was aggressive were filed on time. (Am. Compl. 36 at ¶ 64). Lanzo and Laffer and insubordinate ... which required the Employer to call the suggested that Plaintiff start the grievance process without police to escort [him] out of the building.” (Am. Compl. 33 the emails. (Am. Compl. 36 at ¶ 64). Plaintiff does not plead at ¶ 49). Plaintiff alleges that “[his] suspension was converted any facts about the grievance process, its timing, or any other to a termination because the Employer, having hacked [his] details. Plaintiff alleges that he had wanted to set up a meeting phone, knew that [he] had gone to the doctor to start FMLA with “management,” which Lanzo suggested was not a good leave, which would have given [him] job protection, and also idea. (Am. Compl. 36 at ¶ 64). went [to] a lawyer on December 12.” (Am. Compl. 33 at ¶ 49). A few days later, Plaintiff received an email from O'Brien asking Plaintiff to confirm a grievance meeting that Lanzo had attempted to schedule. (Am. Compl. 36–37 at ¶ 65). Plaintiff 9. Plaintiff Engaged in a Post- declined the meeting because he did not want to move forward Termination Grievance Process. with the meeting without his emails. (Am. Compl. 37 at ¶ 65). On December 19, 2019, Plaintiff asked Wambaugh “how Around the end of May or beginning of June 2020, Plaintiff [he] could be terminated without even having the suspension alleges that he emailed Lanzo alerting him that the grievances meeting.” (Am. Compl. 33 at ¶ 51). Wambaugh told Plaintiff were filed late. (Am. Compl. 37 at ¶ 66). Plaintiff alleges that 37 at ¶ 66). Lanzo “took responsibility for the grievances Lincoln Financial apologized; NYU never responded.36 being filed late.” (Am. Compl. 37 at ¶ 66). (Am. Compl. 36 at ¶ 61). Plaintiff alleges that his suspension and termination grievances are still open and that the grievances he asked Wambaugh to file were never filed. (Am. Compl. 37 at ¶ 67). 11. Plaintiff's Other Allegations of Stalking, Harassment, and Spying. Plaintiff alleges that from April 2019 to February 4, 2020, 10. Plaintiff's Other Factual Allegations several unidentified individuals had acted on Defendants’ behalf to stalk and harass Plaintiff, but does not tie these On or about September 30, 2019, Rodriguez suggested allegations to any Defendants: that Plaintiff take FMLA leave. (Am. Compl. 27 at ¶ 23). Plaintiff asked Rodriguez for instructions, and Rodriguez told • On February 4, 2020, Plaintiff went to T-Mobile, where Plaintiff that he needed “to get certification” from his medical the representative helping him engaged in “unusual provider. (Am. Compl. 27 at ¶ 23). Wambaugh told Plaintiff conversation” and had spent an hour setting up Plaintiff's the same thing. (Am. Compl. 27 at ¶ 24). Plaintiff also phone when it should have only taken 10 minutes. (Am. alleges that both Rodriguez and Wambaugh incorrectly gave Compl. 35 at ¶ 59). him FMLA instructions that applied to non-union employees. (Am. Compl. 28 at 17). Plaintiff alleges that he applied for • During this interaction, a man with sunglasses standing FMLA leave through “Lincoln Financial” in early October, across the street kept looking at Plaintiff, and got into but did not hear anything back for several months. (Am. his car when Plaintiff walked past him. (Am. Compl. Compl. 29 at ¶ 25). 35 at ¶ 59). • On February 5, 2020, Plaintiff's phone had “the same *10 On December 12, 2019, Plaintiff was “in the process” amazon.com [IP] addresses that were being used by of pursuing FMLA leave and visited a health care provider. [NYU] in [his] phone[.]” (Am. Compl. 35 at ¶ 59). (Am. Compl. 32–33 at ¶ 48). Plaintiff mentions that he has a diagnosis of ADHD, but that the doctor also “wanted to • On February 9, 2020, Plaintiff was at a store across from a include a diagnosis of insomnia and major depression,” which different T-Mobile store where someone “follow[ed] ... Plaintiff avers he had “never been tested for or diagnosed and harass[ed]” him in the store, which other patrons with.” (Am. Compl. 32–33 at ¶ 48). Plaintiff's medical allegedly noticed. (Am. Compl. 35 at ¶ 60). provider said that he would send Plaintiff's diagnosis to the insurance company so that Plaintiff could pursue FMLA • Plaintiff's landlord, Tevia Clarke, who is an NYU alumna, leave. (Am. Compl. 32–33 at ¶ 48). On or about December 24, has “harass[ed] ... and agitat[ed]” Plaintiff from July 2019, Plaintiff called Lincoln Financial to see if they received 2019 to April 2020, by “hacking [Plaintiff's] electronic his FMLA leave request, which they said they did not. (Am. devices and taking and/or tampering with ... packages Compl. 34 at ¶ 54). sent to [his] house ... calling [him] ‘weird’ or stating [he is] crazy ... [and] constantly trying to start arguments On December 26, 2019, however, Lincoln Financial notified in the apartment to get a violent reaction out of Plaintiff that his claim had been denied “because [he] was [him].” (Am. Compl. 37 at ¶ 68). no longer employed.”35 (Am. Compl. 34 at ¶ 54). Then in *11 • Plaintiff alleges that one time he had not been February 2020, Plaintiff “learned that Lincoln Financial ... receiving messages from Clarke and when he made without [his] permission, opened up another claim for [him], her aware of this, “she pressed something on her and approved a leave claim, which [he] wasn't qualified phone and all of the text messages from her and other for or asked for ([i]nsurance fraud).” (Am. Compl. 35 at people, voicemails came thr[ough] at the exact same ¶ 61). Through his own research, Plaintiff “learned the time.” (Am. Compl. 37 at ¶ 68). FMLA instructions given to [him] by [NYU] and [UCATS] was [sic] in fact incorrect information, which was later • On April 27, 2020, Plaintiff alleges “[he] saw Tevia address and is password protected.” (Am. Compl. 37 plead enough facts “to state a claim to relief that is plausible at ¶ 68). on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). More specifically, the plaintiff must allege enough • Plaintiff alleges that Clarke is being bribed by facts to show “more than a sheer possibility that a defendant Defendants to retaliate against him. (Am. Compl. 37 has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 at ¶ 68). To support this allegation, Plaintiff notes (2009). For a claim to sufficiently “raise a right to relief that “[he] received mailings from the Union in May above the speculative level,” it must be grounded on factual 2019 or June 2019, which had the Queens address allegations. Twombly, 550 U.S. at 555. A claim grounded on it, even though [he] did not move or change [his] on mere suspicion is not enough to meet this standard. Id. address until mid July 2019.” (Am. Compl. 37 at ¶ “ ‘[L]abels and conclusions’ or ‘a formulaic recitation of 68). Further, Plaintiff alleges Clarke gave Plaintiff's the elements of a cause of action will not do.’ Nor does address to NYU UCATS. (Am. Compl. 37 at ¶ 68). a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ ” Iqbal, 556 U.S. at 678 • Plaintiff alleges that “NYU has been contacting lawyers (quoting Twombly, 550 U.S. at 555, 557) (internal citation to either not take or diminish [his] case at[ ]least omitted, alteration in original). since December 2019 ... since filing [his] case on 12/18/20.” (Am. Compl. 38 at ¶ 74). *12 As relevant here, a court is “obligated to afford a special • On January 31, 2021, Plaintiff discovered text messages solicitude to pro se litigants.” Tracy v. Freshwater, 623 F.3d from Cindy Morren (his sister and an NYU student) and 90, 101 (2d Cir. 2010). Therefore, this Court must interpret his mother, in which Cindy was texting from Plaintiff's Plaintiff's submissions “to raise the strongest arguments that phone number through iMessage and “pretending to be they suggest.” Triestman v. Fed. Bureau of Prisons, 470 [Plaintiff] and pretending to have a good relationship F.3d 471, 474 (2d Cir. 2006) (per curiam) (internal citations with [his] mother.” (Am. Compl. at 38). Plaintiff alleges omitted). “However, the liberal treatment afforded to pro se that his sister got his Apple ID through his ex-girlfriend, litigants does not excuse a pro se party ‘from compliance who also worked at NYU. (Am. Compl. 38 at ¶ 74). with relevant rules of procedural and substantive law.’ ” Wang v. Palmisano, 157 F. Supp. 3d 306, 317 (S.D.N.Y. 2016) • Plaintiff alleges that on June 3, 2021, his mother “called (quoting Maisonet v. Metro Hosp. & Health Hosp. Corp., mental help officials.” (Am. Compl. 39 at ¶ 74). Plaintiff 640 F. Supp. 2d 345, 347 (S.D.N.Y. 2009)). Accordingly, the alleges that “[he] was not mentally ill and that she was Court may not “invent factual allegations that a plaintiff has just trying to harass [him] and deter [him] from making not pled.” Daly v. Westchester Cty. Bd. of Legislators, No. 19- further complaints ....” (Am. Compl. 39 at ¶ 74). CV-4642 (PMH), 2021 WL 229672, at *4 (S.D.N.Y. Jan. 22, 2021) (alterations and quotations omitted) (quoting Chavis • Plaintiff alleges in 2019-2020, Defendant NYU contacted v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010)). Generally, his psychiatrist Dr. Rudoy “to diminish [his] complaints, “[i]n adjudicating a Rule 12(b)(6) motion, a district court and prescribe [him] wrong medication for illness he or must confine its consideration to facts stated on the face of his other doctors never diagnosed [Plaintiff] with.” (Am. the complaint, in documents appended to the complaint or Compl. 39 at ¶ 74). Plaintiff was prescribed the incorporated in the complaint by reference, and to matters medication in August 2019 following his complaints to of which judicial notice may be taken.” Leonard F. v. Isr. Defendant NYU. (Am. Compl. 39 at ¶ 74). According to Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999) (quotation Plaintiff, Dr. Rudoy did not document any of Plaintiff's marks omitted). As mentioned, however, the Court may complaints and did not tell Plaintiff why. (Am. Compl. consider facts raised in opposition papers, depending on the 39 at ¶ 74). circumstances. Davila v. Lang, 343 F. Supp. 3d 254, 267 (S.D.N.Y. 2018). IV. DISCUSSION In reviewing a motion to dismiss pursuant to Rule 12(b)(6), In reaching its conclusions, the Court is aware that issues a court must accept the factual allegations set forth in the of fact, credibility, and the weight of the evidence are not complaint as true and draw all reasonable inferences in favor properly considered on a motion to dismiss, and the Court has not considered them here. Hughes v. Ester Co., 930 F.Supp. weight that should be given to this study cannot be resolved Food a Div. of DiGiorgio Corp., 128 F.3d 110, 114 (2d Cir. on a motion to dismiss....”). 1997). *13 Breach of duty of fair representation is difficult to plead because “[a] wide range of reasonableness must be allowed 1. Breach of Duty of Fair Representation a statutory bargaining representative in serving the unit it Plaintiff brings a “hybrid” claim against UCATS and NYU represents,” subject to good faith and honesty in exercising under § 301 of the Labor Management Relations Act its discretion. Ford Motor Co. v. Huffman, 345 U.S. 330, 338 (“LMRA”), 29 U.S.C. § 185, and based on a union's duty of (1953). A breach of this duty only occurs if a union's conduct fair representation, arising from the National Labor Relations toward a member of the collective bargaining unit are “shown Act (“NLRA”). Liberally construed, Plaintiff alleges that to have arbitrarily, discriminatorily, or in bad faith foreclosed NYU violated the CBA when it discriminated against him, the employee's opportunities to vindicate such wrong through and that UCATS breached its duty of fair representation when the grievance process.” Castro v. New York City Bd. of Educ., it: (1) failed to file grievances on Plaintiff's behalf, and (2) 777 F. Supp. 1113, 1118 (S.D.N.Y.), No. 89-CV-4114 (KTD), misled Plaintiff about the deadline for filing grievances. (Am. aff'd, 923 F.2d 844 (2d Cir. 1990). “[M]ere negligence, even in Compl. 12–14). the enforcement of a collective-bargaining agreement, would not state a claim for breach of the duty of fair representation.” United Steelworkers of America, AFL-CIO-CLC v. Rawson, 495 U.S. 362, 372–73 (1990). i. Applicable Law The duty of fair representation arises out of a union's status as To support allegations of discrimination in a breach of duty the exclusive bargaining agent with the employer. See Greco of fair representation claim, a plaintiff must plead facts that v. Commc'ns Workers of Am., Loc., 1104, 824 F.Supp. 2d show a defendant's conduct was motivated by discriminatory 351, 356 (E.D.N.Y. 2011). Accordingly, the duty requires animus. Rivera v. Communications Workers of America, No. a labor organization “to serve the interests of all members 16-CV-1673, 2017 WL 4338754, at *5 (E.D.N.Y. Sept. 29, without hostility or discrimination toward any, to exercise its 2017). A plaintiff must then allege “a causal connection discretion with complete good faith and honesty, and to avoid between the union's wrongful conduct and their injuries.” arbitrary conduct.” Marquez v. Screen Actors Guild, Inc., 525 White v. White Rose Food, a Div. of DiGiorgio Corp., 237 F.3d U.S. 33, 44 (1998) (quotation marks omitted). 174, 179 (quoting Spellacy, 156 F.3d at 126). It is well established that an employee can sue their employer for breach of a CBA. Smith v. Evening News ii. Plaintiff's Fair Representation Claims are Time-Barred. Ass'n., 371 U.S. 195 (1962). Usually, an employee must exhaust any grievance or arbitration process set forth in the As an initial matter, all of Plaintiff's claims for breach of CBA before bringing suit. Republic Steel Corp. v. Maddox, duty of fair representation are time-barred. This Circuit has 379 U.S. 650, 652 (1965). In DelCostello v. International established that a plaintiff's duty of fair representation claim Brotherhood of Teamsters, however, the Supreme Court accrues “at the latest” by the date of his National Labor recognized that such an exhaustion requirement may result Relations Board (“NLRB”) charge. Kavowras v. N.Y. Times in an “unacceptable injustice” when the union representing Co., 328 F.3d 50, 55 (2d Cir. 2003) (“His bringing of the the employee in these processes acts in “a discriminatory, NLRB charge establishes that he had actual knowledge of the dishonest, arbitrary, or perfunctory fashion as to breach its breach by [the date of his NLRB filing]. It is beyond dispute duty of fair representation.” DelCostello, 462 U.S. at 164. In that his claim had accrued by that date.”). such a case, an employee can sue both the employer and the union, regardless of the grievance or arbitration proceeding. Plaintiff filed an unfair labor practice (“ULP”) charge with Id. In doing so, the plaintiff must allege that the union has the NLRB on June 15, 2020, alleging that UCATS failed breached its duty of fair representation and that the employer to fairly represent him. (See ECF 65, Ex. 5 (Plaintiff's has breached its CBA. Id. A plaintiff has six months from the filed EEOC Charge)). As a matter of law, Plaintiff knew or should have known of UCATS's alleged breach of the duty his Complaint on December 18, 2020. Thus, any alleged 3. Employment Discrimination breaches that Plaintiff knew or should have known about before June 18, 2020 (6 months prior to the date of this To state a claim for employment discrimination, a plaintiff action), are time-barred. Plaintiff does not argue that this must allege that: (i) he is a member of a protected class, statute of limitations should be tolled. Accordingly, his claim (ii) he was qualified for his position, (iii) he suffered an of a breach of duty of fair representation stemming from adverse employment action (“AEA”), and (iv) there are his June 15, 2020 NLRB charge should be dismissed. See facts suggesting an inference of discriminatory motivation.38 Kavowras v. N.Y. Times Co., 328 F.3d 50, 55 (2d Cir. 2003).37 Littlejohn v. City of N.Y., 795 F.3d 297, 311 (2d Cir. 2015). Accordingly, I recommend that Plaintiff's claims against Specifically, Plaintiff must show either that he “suffered UCATS for breach of their duty of fair representation be an adverse job action under circumstances giving rise to dismissed. Additionally, because Plaintiff's claims against an inference of discrimination on the basis of race, color, UCATS are “inextricably interdependent” with his claim religion, sex, or national origin, or ... demonstrat[e] that against NYU, I recommend that Plaintiff's claim for breach harassment on one or more of these bases amounted to of the CBA against NYU also be dismissed. See DelCostello, a hostile work environment.” Feingold v. New York, 366 462 U.S. at 164; Tomney v. Int'l Ctr. For Disabled, 357 F.Supp. F.3d 138, 149 (2d Cir. 2004) (citing Raniola v. Bratton, 2d 721, 738 (“The Union did not violate its DFR, and so 243 F.3d 610, 617 (2d Cir. 2001)). Similarly, to state a Tomney's claims against [the employer] for violating the CBA claim for disability discrimination, Plaintiff would need to are dismissed.”). plausibly allege that (1) Defendants are subject to the relevant statutes; (2) he suffers from a disability within the meaning of the statute; (3) he was otherwise qualified to perform the 2. Breach of Contract essential functions of his job, with or without reasonable accommodation; and (4) he suffered an adverse employment *14 Reading the Complaint most liberally, Plaintiff may action because of his disability.39 be seeking to bring additional breach of contract claim(s) against NYU and UCATS. Plaintiff makes references to the *15 To survive a motion to dismiss, a plaintiff must allege “Union” or “Ucats” contract, but does not include any other facts that plausibly suggest that the employer discriminated facts about, or even references to, any other contracts. (Am. against him because of his race, national origin, or disability. Compl. 20) (“WRONGFUL TERMINATION PURUSANT Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, TO ... BREACH OF CONTRACT”); (Am. Compl. 24 at 85 (2d Cir. 2015). “An inference of discrimination can ¶ 5) (“I complained about potential contract violations to arise from circumstances including, but not limited to, the Employer and to the Union ....”); (Am. Compl. 23 at ¶ the employer's criticism of the plaintiff's performance in 4) (“which it states in the Ucats Contract”); (Am. Compl. ethnically degrading terms; or its invidious comments about at 14) (“The Union Contract does not contain a clear and others in the employee's protected group; or the more unmistakable waiver of my right to sue.”). favorable treatment of employees not in the protected group; or the sequence of events leading to the plaintiff's discharge.” NYU is correct that any state-law breach of contract claim Littlejohn, 795 F.3d at 312 (internal quotation marks omitted). Plaintiff brings against NYU is preempted by Section 301 of the LMRA. (ECF 46 at 20). Although the LMRA does Under the McDonnell Douglas framework, the plaintiff bears not preempt claims for a violation of the CBA, if Plaintiff the initial burden of establishing a prima facie case of is claiming that Defendants violated the CBA, those claims discrimination or retaliation. Kirkland v. Cablevision Sys., are time barred. See Section V. Cunningham v. Local 30, Int'l 760 F.3d 223, 225 (2d Cir. 2014). The evidence necessary Union of Operating Eng'rs, 234 F.Supp.2d 383, 395 (S.D.N.Y. to satisfy this initial burden is “minimal and de minimis.” 2002). Similarly, to the extent Plaintiff complains about Zimmermann v. Assocs. First Cap. Corp., 251 F.3d 376, UCATS's failure to pursue grievances on his behalf, these 381 (2d Cir. 2001) (internal quotations omitted). The burden would be claims for breach of fair duty of representation, then shifts to the defendant to provide a legitimate, non- addressed in Section 1, supra. discriminatory reason for its actions. Id. If defendant does so, the burden shifts back to the plaintiff to demonstrate “pretext” if Plaintiff adequately alleges a prima facie case. 10 & 24 at ¶ 8). Plaintiff alleges that he complained that his coworker, Speziale was treated differently because he “gets Evaluating his claims under those laws, Plaintiff fails to allege religious requests approved” while he did not. Upon return, that he experienced any adverse employment action under Caesar told Plaintiff NYU “will have to let [him] go if [he circumstances that give rise to an inference of discrimination. doesn't] have a doctor's note” for the time he was out. (Am. (Am. Compl. 13). Plaintiff complains that: (1) he was unable Compl. 10). Ultimately, Plaintiff reported that he was sick, to take vacations or sick leave for “religious/cultural event[s]” produced a doctor's note, and therefore was not terminated for in Trinidad; (2) his seniority was miscalculated resulting in a taking his trip[s] to Trinidad. (Am. Compl. 10). less convenient schedule; (3) he experienced a “hostile work environment” because he had been subjected to derogatory *16 Although it is unclear whether Plaintiff actually lost or comments, was “mocked daily,” “ostracized,” harassed, was denied vacation time, a loss or denial of vacation time cyberstalked, and stalked; (4) NYU “retaliated” against “does not generally rise to the level of an adverse employment Plaintiff for complaining about these events by “wrongfully action.” Chukwuka v. City of New York, 795 F.Supp. 2d suspend[ing] [him] twice” and eventually terminating his 256, 261 (S.D.N.Y. 2011); see Drouillard v. Sprint/United employment; and (5) NYU failed to provide him reasonable Mgmt. Co., 375 F. Supp. 3d 245, 272 (E.D.N.Y. 2019). Courts accommodations for his ADHD (Am. Compl. 14). I evaluate in this District have declined to recognize an employer's all of Plaintiff's claims for discrimination on the basis of race denial of a vacation request as an adverse employment action or national origin first, and then turn to Plaintiff's disability where this denial did not constitute a “complete bar” on a discrimination claim. plaintiff's taking vacation. Boyd v. Presbyterian Hosp. in City of New York, 160 F. Supp. 2d 522, 537 (S.D.N.Y. 2001) (“The particular timing of a vacation is not so disruptive that it crosses the line from ‘mere inconvenience’ to ‘materially i. Plaintiff Does not Allege Discrimination adverse’ employment action.”); see also Roff v. Low Surgical on the Basis of Race or National Origin & Med. Supply, Inc., No. CV-033655 (SJF) (JMA), 2004 WL I evaluate Plaintiff's first two discrimination claims under 5544995, at *4 (E.D.N.Y. May 11, 2004). Plaintiff here did a disparate treatment analysis, and in the alternative, a not allege that NYU completely forbade him from taking disparate impact analysis. See Gonzalez v. Police Com'r vacation; indeed, Plaintiff states at one point that NYU Bratton, 2000 WL 1191558, at *20 (S.D.N.Y. Aug. 22, 2000) approved Plaintiff's request to go to Trinidad for this event (acknowledging hostile work environment and disparate three years in a row. (Am. Compl. 15). treatment claims are “distinct” from one another and “require[ ] different pleading and proof”); Pacheco v. New York Presbyterian Hosp., 593 F. Supp. 2d 599, 617 n.10 b. Plaintiff's Seniority Miscalculation (S.D.N.Y. 2009) (“[I]t bears emphasis that the analysis of Does Not Result in an AEA. adverse employment actions involving disparate treatment claims is different [from] that involving retaliation claims.”). Plaintiff alleges that he was given a worse work schedule Notwithstanding the differences between disparate treatment than his coworkers, who were less senior to him. (Am. and retaliation, “[t]he burden of proof in retaliation claims Compl. 23 at ¶ 4). Plaintiff states that both NYU supervisors follows the general disparate treatment analysis in McDonnell and UCATS's representative Wambaugh believed Speizale Douglas Corp. ...” Shah v. New York State Dep't of Civ. Serv., to be senior to Plaintiff, which Plaintiff disputed. Loss of 341 F. App'x 670, 673 (2d Cir. 2009). “seniority” in this context is not an adverse employment action because unfavorable work schedules are not an adverse employment action, and Plaintiff alleges no other ramifications or less favorable treatment because of the a. Plaintiff does not Allege Defendants Had a Full seniority miscalculation. See Antonmarchi v. Consol. Edison Prohibition on Vacation or Restricted his Sick Leave. Co. of New York, No. 03-CV-7735, 2008 WL 4444609, at Plaintiff alleges that in 2017 or 2018, Plaintiff went *14 (S.D.N.Y. Sept. 29, 2008) (finding denial of transfer to to a “Religious/Cultural” festival in Trinidad. Rodriguez position with better hours was not an adverse employment action) aff'd, 514 F. App'x 33 (2d Cir. 2013); Daniels v. Conn. Aug. 17, 2015) (“[Plaintiff] also suggests that the ... Inst., Inc., No. 15-CV-3815 (KPF), 2016 WL 827780, at position is a ‘preferred working schedule for officers,’ but an *10 (S.D.N.Y. Mar. 2, 2016) (finding plaintiff was not unfavorable schedule is not an adverse employment action.”) similarly situated to comparators where she did not plead facts (citing Albuja v. Nat'l Broad. Co. Universal, 851 F.Supp. 2d about their positions, responsibilities, tenure, or experiences). 599, 608 (S.D.N.Y. 2012)). Accordingly, the Complaint's conclusory allegations of differential treatment are insufficient to plausibly suggest an inference of discrimination with regard to work schedule or denial of travel to Trinidad. See id.; see also Burgis v. N.Y. c. None of the Alleged Adverse Employment Actions City Dep't of Sanitation, 798 F.3d 63, 68–69 (2d Cir. 2015); Give Rise to an Inference of Discrimination. Henry v. NYC Health & Hosp. Corp., 18 F.Supp. 3d 396, 408 Even if changes to Plaintiff's vacation time and work (S.D.N.Y. 2014). schedule were considered adverse employment actions, Plaintiff still does not state a claim for employment Similarly, Plaintiff does not allege discrimination under a discrimination because none of Plaintiff's alleged AEAs disparate impact theory. To do so, Plaintiff must allege that —including suspension, termination, and hostile work his employer “uses a particular employment practice that environment—occurred under circumstances that give rise to causes a disparate impact on the basis of race, color, religion, an inference in discrimination.40 “A plaintiff may support sex, or national origin.” 42 U.S.C. § 2000e-2(k)(1)(A)(i). This requires: (i) identifying a specific employment practice an inference of race discrimination by demonstrating that or policy; (ii) demonstrate that a disparity exists; and (iii) similarly situated employees of a different race were treated alleging a causal relationship between the two. Chin v. Port more favorably.” Norville v. Staten Island Univ. Hosp., 196 Auth. of N.Y. & N.J., 685 F.3d 135, 151 (2d Cir. 2012). To F.3d 89, 95 (2d Cir. 1999). “In order to make such a demonstrate a disparity sufficient to withstand a motion to showing, the plaintiff must compare herself to employees dismiss, plaintiffs must allege statistical evidence or allege who are ‘similarly situated in all material respects.’ ” Id. that a “neutral employment practice denied equal employment “Employment characteristics which can support a finding that opportunities to a small number of members of a protected two employees are ‘similarly situated’ include ‘similarities in class compared to similarly-situated colleagues.” Gordon education, seniority, performance, and specific work duties.’ v. City of N.Y., No. 14-CV-6115 (JPO) (JCF), 2016 WL ” Sollazzo v. Just Salad Rest., No. 15-CV-252 (ER), 2018 4618969, at *23 (S.D.N.Y. Sept. 2, 2016). WL 1273661, at *6 (S.D.N.Y. Mar. 5, 2018) (quoting DeJesus v. Starr Tech. Risks Agency, Inc., No. 03-CV-1298 (RJH), Plaintiff has not identified any employment practice or policy 2004 WL 2181403, at *9 (S.D.N.Y. Sept. 27, 2004)). A plaintiff also “must show that [his] co-employees were related to vacation time or his work schedule.41 See African subject to the same performance evaluation and discipline Am. Legal Defense Fund v. N.Y. State Dep't of Educ., 8 F.Supp. standards.” Graham v. Long Island R.R., 230 F.3d 34, 40 (2d. 2d 330 (S.D.N.Y. 1998) (dismissing Title VII disparate impact Cir. 2000). While “all material respects” varies, a plaintiff claim where plaintiff failed to allege any statistics to support must typically “plead comparators’ relevant experience and allegations that facially neutral hold-harmless provisions had length of employment in order to raise an inference of a disparate impact on minorities). Accordingly, I recommend discrimination.” LeeHim v. New York City Dep't of Educ., No. Plaintiff's race and national origin discrimination claims be 17-CV-3838 (PAE), 2017 WL 5634128, at *6 (S.D.N.Y. Nov. dismissed. 21, 2017). *17 The Amended Complaint lacks factual allegations ii. Plaintiff Fails to Allege a Hostile Work Environment. to support an infererence that similarly situated non-Black or non-disabled employees were treated differently from To state a claim for a hostile work environment under § Plaintiff. The only comparator Plaintiff alleges is Gary 1983, § 1981, Title VII, or the NYSHRL, a plaintiff must Speizale, who he alleges is white, less senior to him, allege facts plausibly demonstrating that “the workplace is and gets his holiday vacation time approved. (Am. Compl. permeated with discriminatory intimidation, ridicule, and 10). Plaintiff conclusorily alleges that Speizale is “similarly insult that is sufficiently severe or pervasive to alter the (internal quotation marks omitted). To plead an abusive roommate/landlord, psychiatrist, sister, or mother; and/or working environment, a plaintiff must satisfy “both objective strangers on the subway were hired by Defendants to stalk and subjective components: the conduct complained of must and harass him—are wholly unsupported by facts and do be severe or pervasive enough that a reasonable person would not state a claim for a hostile work environment.43 The find it hostile or abusive, and the victim must subjectively Court understands that Plaintiff describes these instances in perceive the work environment to be abusive.” Id. at 321 support of his belief that there is an ongoing conspiracy (internal quotation marks omitted). This requires that the against Plaintiff to create a hostile work environment for him. incidents be “more than episodic.” Id. A court “must consider Plaintiff's beliefs—however strongly he may hold them—are the totality of the circumstances, including the frequency not facts. Gallop v. Cheney, 642 F.3d 364, 368 (2d Cir. 2011) of the discriminatory conduct; its severity; whether it is (“A court may dismiss a claim as ‘factually frivolous’ if the physically threatening or humiliating, or a mere offensive sufficiently well-pleaded facts are ‘clearly baseless’—that is, utterance; and whether it unreasonably interferes with an if they are ‘fanciful,’ ‘fantastic’ or ‘delusional.’ ”) (quoting employee's work performance.” Id. (internal quotation marks Denton v. Hernandez, 504 U.S. 25, 32-33 (1992)); Tessema omitted). “Hostile work environment claims are meant to v. Env't Prot. Agency, No. 1:20-CV-9700 (MKV), 2021 WL protect individuals from abuse and trauma that is severe. They 2666855, at *4 (S.D.N.Y. June 29, 2021), appeal dismissed are not intended to promote or enforce civility, gentility or sub nom. Tessema v. United States Env't Prot. Agency, No. even decency.” Bermudez v. City of New York, 783 F.Supp. 2d 21-1729, 2021 WL 6427942 (2d Cir. Dec. 16, 2021) (finding 560, 579 (S.D.N.Y. 2011) (citation omitted). that Plaintiff's claims that the EPA has tortured him and subjected him to human experiments involving exposure to *18 The standards for a union's liability for hostile work hazardous pollutants were “fanciful” in nature and “clearly environment are different from those governing the liability warrants dismissal”); Mercier v. Mercier, No. 07-CV-0523, of an employer. Under Title VII, a union may not “cause 2007 WL 1582267, at *1–2 (N.D.N.Y. May 25, 2007) (Kahn, or attempt to cause an employer to discriminate against an J.); Achtman v. Kirby, McInerney & Squire, LLP, 464 F.3d individual in violation of this section.” 42 U.S.C. § 2000e– 328, 337 (2d Cir. 2006) (“[C]onclusory allegations or legal 2(c)(3). To plead union liability, Plaintiff must plead (1) conclusions masquerading as factual conclusions will not the existence of a hostile work environment, (2) that a suffice to [defeat] a motion to dismiss.”); see also Banks union representative caused or attempted to cause the hostile v. Mental Health Clinicians, No. 11–CV–7848, 2012 WL work environment, and (3) that the representative's conduct 6201259, at *5 (S.D.N.Y. Dec. 11, 2012) (granting motion to may properly be imputed to the union.42 See Agosto v. dismiss where the plaintiff alleged that the defendants were Correctional Officers Benevolent Ass'n, 107 F.Supp. 2d 294, deliberately indifferent when they exacerbated the plaintiff's 307 (S.D.N.Y. 2000); Grandy v. Manhattan & Bronx Surface suicide risk by transferring him to a special unit for mentally Transit Operating Auth., No. 16-CV-6278 (VEC), 2018 WL ill inmates, finding, inter alia, that Plaintiff did not state facts 4625768, at *21–22 (S.D.N.Y. Sept. 26, 2018). that supported his bald allegation that Plaintiffs acted with “punitive intentions”) (internal quotation marks omitted). *19 Additionally, Plaintiff has failed to allege sufficient a. Plaintiff Does Not Adequately Allege that facts from which one could reasonably conclude that the NYU or UCATS Stalked or Harassed Plaintiff, alleged hostile conduct was because of Plaintiff's membership or Hacked Plaintiff's Electronic Devices. in protected classes. See Wilson v. JPMorgan Chase Bank, Plaintiff's allegations that he was stalked, harassed, and N.A., No. 20-CV-4558 (JMF), 2021 WL 918770, at *5 hacked are conclusory. Gench v. HostGator.com LLC, No. 14- (S.D.N.Y. Mar. 10, 2021). CV-3592 (RA) (GWG), 2015 WL 3757120, at *10 (S.D.N.Y. June 17, 2015), R&R adopted, No. 14-CV-3592 RA, 2015 WL 4579147 (S.D.N.Y. July 29, 2015) (finding plaintiff's b. Plaintiff Does Not Adequately Allege Discriminatory allegations that certain conduct “allow[ed] ‘criminal host(s) Comments That Rise to a Hostile Work Environment. to steal the site content’ ... ‘manipulate users’ web activity,” “lose control of her email account, and [ ] be subject to Plaintiff also does not plead sufficient facts to support a because the conduct about which Plaintiff complains is other than discrimination do not constitute protected activity not severe or pervasive.44 See Benzinger v. Lukoil Pan for purposes of Title VII.” Chidume v. Greenburgh-N. Castle Americas, LLC, 447 F. Supp. 3d at 99. Plaintiff alleges Union Free Sch. Dist., No. 18-CV-01790 (PMH), 2020 WL he was subject to several derogatory statements and was 2131771, at *4 (S.D.N.Y. May 4, 2020) (quoting Mack v. “ostracized,” stalked, harassed, and hacked at work. (Am. Paris Maint. Co. Inc., No. 14-CV-6955, 2016 WL 8650461, at Compl. 20). See also Am. Compl. 22 (“was labeled a criminal, *9 (S.D.N.Y. Feb. 22, 2016), R&R adopted, No. 14-CV-6955, threatening, violent, aggressive, unprofessional all which 2016 WL 1071030 (S.D.N.Y. Mar. 17, 2016)). are racial sterotypes[sic]/profiles for person(s) of [A]frican descent”); Am. Compl. 20 (“Management and my coworkers Plaintiff does not adequately allege that he engaged in would say things like ‘why don't you go back to your country protected activity. Although Plaintiff alleges that coworkers since you keep complaining’, or ‘you don't fit the culture made racially charged comments to him, Plaintiff does not here.’ ”); Am. Compl. 24 at ¶ 7 (“ ‘You don't fit the culture provide facts about when he sought to file a grievance for here, You have to fit the culture, you got another chance, this conduct, or for any other discriminatory conduct that you better not mess it up this time around’ ”); Am. Compl. he endured based on his race or national origin. Although 15 (“Why don't you just go back to Trinidad to live since Plaintiff sought to file many grievances with UCATS, in [you're] always complaining about what we do here.”); Am. the majority of the alleged instances, Plaintiff only states Compl. 32 at ¶ 45 (Rodriguez used the words ‘black man that UCATS did not or could not file a grievance—not that being aggressive’ ”); Am. Compl. 11 (“subjected to numerous he sought to file a grievance because of discrimination on disparaging comments from 4/2/19 to 12/10/19”). the basis of race or national origin. (Am. Compl. 24 at ¶ 4); (Am. Compl. 25 at ¶ 14); (Am. Compl. 9); (Am. Because Plaintiff's Complaint is at times vague and repetitive, Compl. 26 at ¶ 17); (Am. Compl. 27 at ¶ 20); (Am. I cannot discern for many of the claims the speaker, context, Compl. at 30 ¶ 32). Only on three occasions does Plaintiff or frequency of these comments. Accordingly, Plaintiff fails plead slightly more. Specifically, Plaintiff alleges that: (1) to state a claim for hostile work environment based on the Defendants “maliciously misled [him] into thinking the comments identified here. grievances were filed when they weren't” so that both parties could avoid a breach of a duty of fair representation claim (Am. Compl. 9); (2) Wambaugh “did not file a grievance for racial discrimination, which she should have known to [do iii. Plaintiff Does not Adequately Allege Retaliation. because] she had the audio evidence” of the fight between Plaintiff, Olivia, and Jameson (Am. Compl. 29 at ¶ 32) To establish a claim of retaliation under § 1981, Title VII (emphasis added); and (3) UCATS violated their duty of and the NYSHRL, Plaintiff must allege facts that plausibly fair representation in May 2020 because some grievances suggest that: (i) he participated in protected activity, (ii) he UCATS allegedly filed were “not actual grievances and lack suffered an adverse employment action, and (iii) there was sig[ ]natures by all parties.” (ECF 68). Plaintiff does not allege a causal connection between his engaging in the protected any facts that suggest UCATS's decision not to file a grievance activity and the adverse employment action.45 Gorzynski v. for Plaintiff was motivated by discriminatory animus.47 JetBlue Airways Corp., 596 F.3d 93, 110 (2d Cir. 2010); see Accordingly, I recommend that Plaintiff's Retaliation claim also Wilson, 2021 U.S. Dist. LEXIS 45132, at *13. be dismissed. *20 Liberally construing the Complaint, Plaintiff claims that he was suspended and fired for seeking to file grievances (or otherwise complaining) about mistreatment in the workplace. iv. Plaintiff's Disability Discrimination Claim Fails. See Am. Compl. 12 (“[Plaintiff has] complained about a hostile workplace, Harassment, Retaliation, Discrimination Plaintiff does not adequately plead disability discrimination and my complaints were either wrongfully labeled as under the ADA, the NYCHRL or the NYSHRL. Plaintiff does meritless or I was deceitfully told they were filed when not allege that the Defendants are subject to the ADA, that he they were not.”).46 It is well settled that filing “[a] union was in fact disabled under the ADA, or that he suffered an adverse employment action under circumstances giving rise grievance can constitute protected activity if it concerns *21 A person has a “disability” within the meaning of the notice to the defendant of his intention to take leave; and (v) ADA if he has “(A) a physical or mental impairment that that he was denied benefits to which he was entitled under the substantially limits one or more major life activities of such FMLA. See Graziadio v. Culinary Institute of America, 817 individual; (B) a record of such an impairment;” or if he is F.3d 415, 424 (2d Cir. 2016). (C) “regarded as having such an impairment.” 42 U.S.C. § 12102(1). “Major life activities” are defined in the regulations Plaintiff's claim against UCATS fails because Plaintiff has as “functions such as caring for oneself, performing manual not (and cannot) allege that UCATS is an “employer” tasks, walking, seeing, hearing, speaking, breathing, learning, within the meaning of the FMLA. Eckert v. United Auto. and working,” 29 C.F.R. § 1630.2(i). Plaintiff has not alleged Workers Loc. Union 897, No. 04-CV-538S, 2005 WL that his ADHD has impacted him in any way.49 2126295, at *9 (W.D.N.Y. Sept. 1, 2005) (concluding that a union that represented plaintiff's interests and acted on his Moreover, Plaintiff does not plead any facts that support behalf “relative to [Plaintiff's] employment” is “precisely the his allegation that Defendants denied him any reasonable opposite” of an employer under the FMLA); see also Latella accommodation. To state a claim for failure to accommodate, v. Nat'l Passenger R.R. Corp. (Amtrak), 94 F. Supp. 2d 186, “a plaintiff must establish that (1) he is a person with a 190 (D. Conn. 1999) (rejecting an argument for breach of disability; (2) defendant had notice of his disability; (3) duty of fair representation against a union for “not advising plaintiff could perform the essential functions of the job him of his rights under the FMLA” because “no private at issue with reasonable accommodation; and (4) defendant right of action exists for a violation of the FMLA's notice refused to make such accommodations.” Howard v. United requirements against an employer or a union.”). Accordingly, Parcel Serv., Inc., 101 F. Supp. 3d 343, 352 (S.D.N.Y. Plaintiff's FMLA claim is not applicable against UCATS, and 2015), aff'd sub nom. Howard v. United Parcel Serv., 648 I recommend that it be dismissed. F. App'x 38 (2d Cir. 2016). Here, Plaintiff merely restates the legal standard that employer generally have a duty *22 Plaintiff's claim against NYU also fails. Plaintiff does to accommodate employees with disabilities and checks a not allege any facts that identify how NYU interfered with box that the Defendants denied him accommodations. (Am. his FMLA rights or resulted in a denial of Plaintiff's benefits. Compl. 5, 14). This is conclusory and insufficient. Plaintiff alleges that he applied for FMLA leave in early October 2019, after a September 30, 2019 conversation Although Plaintiff's November 21, 2019 Step 2 Grievance between Plaintiff and Rodriguez. (Am. Compl. 28 at ¶¶ 23, states that he “was discriminated against based on having 25). Plaintiff also alleges that on December 12, 2019 he a disability,” his supporting reasons include that he was visited a doctor in “pursu[it] [of] FMLA leave.” (Am. Compl. “stalked, bullied, harassed[ ], character defamed, privacy 32–33 at ¶ 48). Plaintiff does not allege whether the FMLA breached,” among other things. (ECF 49-3 at 3). As addressed leave he was pursuing in December 2019 was a part of the above, these allegations are fanciful and should be dismissed. same request or not. Plaintiff's operative complaint is devoid Gallop, 642 F.3d at 368 (2d Cir. 2011). Accordingly, of any allegations regarding his FMLA process for the two I recommend that the Court dismiss Plaintiff's disability months immediately preceding Plaintiff's termination. NYU discrimination claims. terminated Plaintiff's employment on December 13, 2019. (Am. Compl. 33 at ¶ 49). At most, Plaintiff alleges that Rodriguez “deliberately” gave him “the wrong Fmla [sic] request instructions ... which interfered with [his] FMLA 4. FMLA Interference rights entitlement.” (Am. Compl. 17). Plaintiff believes that UCATS and NYU violated the FMLA NYU is correct, however, that failure to provide notice of because they denied his initial claim, but then approved the terms of the FMLA, “where the lack of notice had no an FMLA application for Plaintiff that Plaintiff claims he effect on the employee's exercise of or attempt to exercise never made. These allegations do not support a claim for any substantive right conferred by the Act,” is insufficient to FMLA violations against either defendant. To state an FMLA state a cause of action. Sarno v. Douglas Elliman-Gibbons & interference claim, Plaintiff must establish: (i) that he is an Ives, Inc., 183 F.3d 155, 162 (2d Cir. 1999). Plaintiff makes eligible employee under the FMLA; (ii) that the defendant is the conclusory statement that Rodriguez's and Wambaugh's does not allege how being provided non-union employee making this claim, a plaintiff must adequately allege “the instructions affected Plaintiff's pursuit of FMLA leave when most fundamental aspect of a conspiracy: an agreement.” he knew that he was a union employee. (Am. Compl. 17). Gropper, 12 F. Supp. 3d at 671. The Court will not simply Because of conflicting and incoherent allegations, I cannot infer an agreement from violations of the laws because that discern from Plaintiff's pleadings: (1) what Rodriguez's would essentially “permit every civil rights case to become FMLA instructions were; (2) when he requested FMLA leave; a civil rights conspiracy case, which the Second Circuit has or (3) any October 2019 request was approved or denied. rejected in analogous contexts.” Id. at 671. Accordingly, I recommend that Plaintiff's FMLA interference claim be dismissed. *23 Plaintiff alleges that he complained to UCATS about the hostile work environment he experienced, but UCATS told him his concerns were meritless, or told Plaintiff they filed grievances when they had not. (Am. Compl. 9, 12). 5. Conspiracy under Section 1985(3). Defendants’ “dishonesty,” Plaintiff alleges, is a “clear sign of Plaintiff fails to assert a § 1985 claim against both defendants a conspiracy to deprive [him] of [his] rights.” (Am. Compl. for the same reason: he fails to allege any facts that suggest 12). While Plaintiff was upset by UCATS's responses that either defendant acted in agreement with anyone, or acted they either would not or could not file a grievance for some with an intent to deprive Plaintiff of any of his rights under of the events about which Plaintiff complained, Plaintiff the law. As stated in Section VII, Plaintiff also does not allege does not allege sufficient facts to withstand a motion to that any party acted with discriminatory animus. dismiss. Plaintiff fails to state any facts with particularity that suggest UCATS and NYU employees worked in concert To state a claim under § 1985(3), a plaintiff must allege: (either totally within UCATS, totally within NYU, or some “(1) a conspiracy; (2) for the purpose of depriving, either combination of UCATS and NYU) to deprive Plaintiff of his directly or indirectly, any person or class of persons to the constitutional rights. equal protection of the laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his Plaintiff's allegations are limited to conclusory statements. person or property or deprived of any right or privileges of a Complaints that state “conclusory, vague, or general citizen of the United States.” Trautz v. Weisman, 819 F. Supp. allegations of conspiracy to deprive a person of constitutional 282, 290 (S.D.N.Y. 1993). The conspiracy must further be rights cannot withstand a motion to dismiss.” Maack v. “motivated by ‘some racial or perhaps otherwise class-based, Wyckoff Heights Med. Ctr., No. 15-CV-3951 (ER), 2017 invidious discriminatory animus behind the conspirators’ WL 4011395, at *8, (S.D.N.Y. Sept. 11, 2017); see also action.’ ” Cuoco v. U.S. Bureau of Prisons, No. 98-CV-9009 Gallop v. Cheney, 642 F.3d 364, 368 (2d Cir. 2011) (“A (WHP), 2001 WL 167694, at *3 (S.D.N.Y. Feb. 16, 2001) court may dismiss a claim as ‘factually frivolous’ if the (quoting Thomas v. Roach, 165 F.3d 137, 146 (2d Cir. sufficiently well-pleaded facts are ‘clearly baseless’—that is, 1999). The claim must be pleaded with “at least some if they are ‘fanciful,’ ‘fantastic.’ or ‘delusional.’ ”) (quoting degree of particularity ... [to] establish the existence of an Denton v. Hernandez, 504 U.S. 25, 32-33 (1992). Evidence agreement among the defendants to deprive [the plaintiff] to support a conspiracy may be “when, where or with whom of his constitutional rights.” Gropper v. Fine Arts Housing, an unlawful agreement was made” or “any specific acts Inc., 12 F. Supp. 3d 664, 671 (S.D.N.Y. 2014). This requires performed in furtherance of the alleged unlawful agreement. “establish[ing] the existence of an agreement among the Almonte v. Florio, No. 02-CV-6722 (SAS), 2004 WL 60306, defendants to deprive [the plaintiff] of his constitutional at *5 (S.D.N.Y. Jan. 13, 2004). None of that is present. rights.” Id. (quoting Roach, at 147 (2d Cir. 1999). An explicit Plaintiff does not adequately allege that UCATS or NYU agreement is not necessary but may be shown through a acted in furtherance of a conspiracy to deprive him of his “general conspiratorial objective” among the participants constitutional rights because his allegations are conclusory. in the conspiracy. LeBlanc-Sternberg v. Fletcher, 67 F.3d As discussed, the Complaint does not adequately allege that 412, 427 (2d Cir. 1999) (quoting Snell v. Tunnell, 920 F.2d NYU or UCATS's actions were motivated by a racial animus. 673, 702 (10th Cir. 1990)). A plaintiff must further allege Blue v. City of New York, No. 14-CV-7836 (VSB), 2018 WL that the defendant's “overt acts ... were reasonably related 1136613, at *16 (S.D.N.Y. Mar. 1, 2018). Accordingly, I to the promotion of the claimed conspiracy.” Id. (quoting dismissed. 7. Negligent Infliction of Emotional Distress. *24 Plaintiff brings claims against both NYU and UCATS 6. Civil Rights Violation Under for negligent infliction of emotional distress (“NIED”). Civil Rights Law Section 79-n. Plaintiff alleges that he experienced emotional distress because of the “employment discrimination” he experienced Civil Rights Law § 79-n creates a cause of action against at NYU. (Am. Compl. 13). anyone who “summons a police officer ... without reason to suspect a violation of the penal law, any other criminal As an initial matter, Plaintiff's NIED claim against NYU conduct, or an imminent threat to a person or property,” is barred by the exclusivity provisions of the New York “because of a belief or perception regarding,” inter alia, Workers’ Compensation Law (“WCL”). See N.Y. Work. race or disability. Civil Rights Law § 79-n. To state a claim Comp. Law § 11. The WCL provides the exclusive remedy under CRL § 79-n, a plaintiff must allege that a defendant for an employee who is injured “by the negligence or (1) intentionally committed, (2) damage to a person or wrong of another in the same employ.” Rivera v. Baccarat, property, (3) ‘because of a belief or perception regarding [that Inc., No. 95-CIV-9478 (MBM), 1996 WL 251850, at *4, person's] ... [protected characteristic].’ ” Le v. Triza Elec. (S.D.N.Y. May 10, 1996). WCL precludes Plaintiff from Corp., No. 19-CV-5134 (ARR) (PK), 2020 WL 1274977, at recovering from claims of NIED that arise out of workplace *3 (E.D.N.Y. Mar. 16, 2020). Section 79-n does not provide a conduct. D'Annunzio v. Ayken, Inc., 25 F. Supp. 3d 281, remedy “where existing discrimination laws already provide 294 (E.D.N.Y. 2014); Stevens v. New York, 691 F. Supp. protection, such as in employment ... decisions. Unless a 2d 392, 397 (S.D.N.Y. 2009); see Torres v. Pisano, 116 plaintiff could show bias-related violence or intimidation in F.3d 625, 640 (2d Cir. 1997) (finding negligence claim for the hiring ... decision ... [they] could not bring an action under hostile work environment barred by exclusivity of workers this new section.” Governor's Approval Memorandum, No. 7, compensation). While the Court is sympathetic to Plaintiff's ch. 227, filed with Assembly Bill Number 529. distress, Plaintiff's allegations arise out of alleged workplace conduct. Accordingly, the claim is barred by the WCL and Plaintiff's Section 79-n claim fails because of the availability must be dismissed. of other statutory remedies in the employment context. Even if it did not, Plaintiff would still fail to state a Plaintiff's NIED claim against UCATS also fails. First, while claim. Plaintiff alleges that Rodriguez “falsely summoned” Plaintiff makes this claim against “NYU and UCATS” (Am. an NYPD officer “to arrest [him] and or escort [him] out Compl. 25 at 13), he does not provide facts that support any for criminal trespassing” as he was writing an email about allegation that UCATS as an entity or a UCATS employee did the hostile work environment he was experiencing. (Am. anything that would support a claim for negligent infliction of Compl. 12 at ¶ 6). Rodriguez is not a defendant in this emotional distress. (Am. Compl. 25 at 13–14). While Plaintiff action.50 Even if this behavior extended to NYU, Plaintiff alleges that he was being stalked and is experienced a hostile does not assert that NYU intentionally threatened Plaintiff work environment (allegations that appear to be targeted because of his protected characteristics.51 As best as I can at NYU, not UCATS), these allegations are conclusory. See Goodrich v. Long Island R.R. Co., No. 10 Civ. 2195 discern, Plaintiff alleges that he was suspended on or before (SAS), 2010 WL 2473593, at *1, (S.D.N.Y. June 17, 2010) December 11, 2019 because NYU knew, “through its control (following Plaintiff's coworker posting on a public bulletin of [Plaintiff's] devices,” that Plaintiff knew NYU hacked his board his positive HIV status, Plaintiff withdrew his NIED devices. (Am. Compl. 32 at ¶ 47). By Plaintiff's own account, claim, conceding he “ ‘was never placed in fear of imminent his employment was suspended, and his supervisor suggested bodily harm, nor did he ever suffer any physical impact’ ”). he leave. When he did not leave, he overheard Rodriguez say, To the extent Plaintiff is alleging UCATS acted negligently by “black man being aggressive” and NYPD officers appeared failing to file grievances for Plaintiff, as discussed, UCATS to “arrest [him] for criminally trespassing.”52 has wide discretion in those decisions, and Plaintiff does not adequately allege that they abused their discretion. See supra Section 1. For the reasons stated above, I recommend that the Motion VI. Objections be GRANTED. Although pro se complaints should generally In accordance with 28 U.S.C. § 636(b)(1) and Fed. R. Civ. be given leave to amend when there is “any indication that a P. 72(b), the parties shall have fourteen (14) days (including valid claim might be stated,” Thompson v. Carter, 284 F.3d weekends and holidays) from receipt of this Report to file 411, 416 (2d Cir. 2002), amendment may be denied upon a written objections. See also Fed. R. Civ. P. 6 (allowing three finding of futility. See Chill v. Gen. Elec. Co., 101 F.3d 263, (3) additional days for service by mail). A party may respond 271–72 (2d Cir. 1996). I do not recommend that Plaintiff to any objections within fourteen (14) days after being served. be given leave to amend his conspiracy claim because his Such objections, and any responses to objections, shall be allegations, even liberally construed, are still fanciful and addressed to the Honorable J. Paul Oetken, United States factually frivolous. See Kraemer v. City of New York, No. District Judge. Any requests for an extension of time for filing 19-CV-6671 (VEC), 2020 WL 1974204, at *4 (S.D.N.Y. objections must be directed to Judge Oetken. Apr. 24, 2020) (“While the Court has no basis to doubt the sincerity of Plaintiff's beliefs, the allegations exhibit a FAILURE TO FILE OBJECTIONS WITHIN level of delusional paranoia that makes the continuation FOURTEEN (14) DAYS WILL RESULT IN A of this vexatious litigation an unjustified expenditure of WAIVER OF OBJECTIONS AND WILL PRECLUDE public and private resources.”) (finding Plaintiff's allegations APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, of coordinated efforts by police, AMC movie theaters, T- 155 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d Mobile, Starbucks, NYU and others to “surveil, mock, and 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, harass Plaintiff” frivolous). Similarly, because Plaintiff's fair 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 representation claims are time-barred, leave to amend would (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 also be futile. (2d Cir. 1983). If Plaintiff wishes to review, but does not have access to, cases cited herein that are reported on Westlaw, *25 Because Plaintiff is proceeding pro se, however, I she should request copies from the Defendants. See Lebron v. recommend that he be given one final opportunity to Sanders, 557 F.3d 76, 79 (2d Cir. 2009). replead only his Discrimination Claims for Hostile Work Environment and Retaliation, and his FMLA Claims, Defendants are directed to serve a copy of this Report and and that he be directed to file a proposed second amended Recommendation on Plaintiff by mail and file proof of complaint within 30 days of Your Honor's final disposition service on the docket within seven days. Alternatively, if of this motion. To the greatest extent possible, Plaintiff's circumstances related to the ongoing COVID-19 pandemic amended complaint must allege facts to support that his prevents their service, they must file a letter on the docket claims, including: instead. (1) Identifying the NYU or UCATS employees, if any, who engaged in the specific discriminatory conduct; and All Citations (2) Identifying and describing the specific acts by the NYU Not Reported in Fed. Supp., 2022 WL 1666918 or UCATS employees that constitute discriminatory acts. Footnotes 1 The case was reassigned earlier this year to Judge Oetken. 2 I reviewed ECF 40, Plaintiff's Proposed Second Amended Complaint, and do not find that Plaintiff's Proposed Second Amended Complaint alleges additional facts that would have been material to this Report & Recommendation. to [his] complaint to his old address.” (ECF 65 at 1). NYU filed an Affirmation and a “true and correct copy of the confirmation that Defendant's Motion to Dismiss papers were delivered” to Plaintiff's address listed on the docket. (ECF 71). 4 For purposes of deciding the Motion, the Court accepts as true all facts alleged by Plaintiff, see Krassner v. 2nd Ave Delicatessen Inc., 496 F.3d 229, 237 (2d Cir. 2007), and draws all inferences in the Plaintiff's favor. See Larkin v. Savage, 318 F.3d 138, 139 (2d Cir. 2003). 5 To reduce the likelihood of confusion, all citations to the Amended Complaint reference PDF page numbers, ranging from one (1) to thirty-nine (39) (the entirety of ECF 25 in one PDF). Plaintiff did not include paragraph numbers until page 22. Accordingly, citations to the Amended Complaint on or after page 22 will also include paragraph citations. 6 Plaintiff does not identify or define “management,” nor does he identify subsequent work reviews at which he was informed he was performing adequately. 7 Plaintiff does not identify these individuals nor does he detail any incidents in connection with this complaint. 8 Management also asked that Plaintiff not wear his coat/jacket while working, even though he was cold, because the security guard had complained about the way “it looked” on Plaintiff. (Am. Compl. 23 at ¶ 3). 9 Plaintiff does not allege whether Speizale was in fact senior to him, nor does he allege why his supervisors and union representative thought Speizale was senior to Plaintiff. Plaintiff also does not allege facts about other similarly situated coworkers and their work schedules. 10 Article 34 of the CBA governs the Grievance and Arbitration Procedure with UCATS. (ECF 49-1, CBA at 27). 11 Plaintiff alleges extremely similar facts occurred in 2018. (Am. Compl. 10). It is unclear whether these facts are for the same event in 2017 and Plaintiff misstates the date, or whether this is a different event entirely. Plaintiff alleges that in 2018, he asked Rodriguez for unpaid time off to attend a “religious holiday,” and his request was denied. (Am. Compl. 10). Plaintiff “brought up the fact that Gary Speizale gets his religious requests approved” but Plaintiff was told “to worry about [himself].” (Am. Compl. 10). Plaintiff alleges that Rodriguez told Plaintiff to “call out sick for those days,” and told Plaintiff that he would not need a doctor's note. (Am. Compl. 10). Plaintiff followed Rodriguez's suggestion and upon returning, Caesar told Plaintiff that he had abused sick days and NYU “will have to let [him] go if [he doesn't] have a doctor's note.” (Am. Compl. 10). Plaintiff alleges that he reported he was sick, produced a doctor's note, and therefore was not terminated. (Am. Compl. 10). Plaintiff does not allege any additional facts about what Rodriguez advised him to do regarding his sick time and the festival, what doctor he saw, or what sickness, if any, he experienced. 12 Plaintiff does not identify “they,” or whether “they” were supervisors. 13 Plaintiff does not provide any facts about when or to whom he disclosed his ADHD disability. He also does not plead the original length of his probationary period. 14 Plaintiff does not identify any of these individuals. 15 Plaintiff alleges that he “heard people in the library discussing videos [he] had watched, or things on [his] social media [ac]counts and email accounts and electronic devices, that no one but [Plaintiff] should have on [his] phone and laptop that weren't there before.” (Am. Compl. 26 at ¶ 19). 16 Plaintiff said that “[he] noticed people on the train looking at [him], standing next to [him], raising their phones at [him] as if they were recording [him], stomping in front of [him], and engaging in other activity that [he] viewed as an effort to agitate [him]. [He] suspected that the Employer was involved in this because it was the same behavior [he] was experiencing at the library [a]nd only started after [his] initial complaints.” (Am. Compl. 27 at ¶ 20). 17 Plaintiff alleges “[t]he meds the psychiatrist prescribed [Plaintiff], shouldn't have been prescribed, as [he] wasn't diagnosed with any of the ailments [that mandated] the medication.” (Am. Compl. 38 at ¶ 72). Plaintiff further alleges that the psychiatrist had omitted all of his “confessions of the stalking from NYU” and other misconduct by Defendants but Plaintiff does not say why the psychiatrist did this. (Am. Compl. 38 at ¶ 72). 18 Plaintiff does not identify or describe specific acts that he believes constitute harassment other than the stalking and hacking events, and specific arguments and altercations, described in this section and Section III.11. 19 At this meeting, Rodriguez asked Plaintiff to sign “the verbal warning,” but Plaintiff said he wanted to speak with a Union representative first. (Am. Compl. 27 at ¶ 23). Rodriguez then “shredded the verbal warning she asked [Plaintiff] to sign.” (Am. Compl. 27 at ¶ 23). 20 The text messages stated “[N _ _ _ S] are not even human no more” and accused Plaintiff of being “involved in ‘a whole lot of gang shit.’ ” (Am. Compl. 28 at ¶ 26). 21 Plaintiff thinks NYU “was using Olivia to spy on [him] to see why [he] wasn't at work.” (Am. Compl. 28 at ¶ 27). 22 Plaintiff further “suspect[ed] that this was all part of the Employer's campaign to retaliate against [him].” (Am. Compl. 28 at ¶ 28). Plaintiff does not explain the nature of his “Course Reserve” work, the relevance or significance of his conversations with these faculty members, or how these alleged facts constitute retaliation. 23 Plaintiff does not “recall if they told [him] that it was because of the incident with Freddy [O]livia, but in the event they didn't, [he] understood that was what the meeting was about, because it was the only incident that happened that day.” (Am. Compl. 29 at ¶ 31). 24 Plaintiff alleges that Wambaugh “should have known to file a grievance” for “racial discrimination,” for him, since she “had the audio evidence” of the fight with Jameson. (Am. Compl. at 29 ¶ 32). 25 Plaintiff does not explain what the “final warning” threatened. Plaintiff states that he told O'Brian that “[he] didn't understand how [he] was getting a final warning and suspension, when [he] had audio of the incident which proves that [he] didn't threaten or touch anyone.” (Am. Compl. 30 at ¶¶ 36–38). 26 It is unclear whether this was a new suspension, or a continuation of another suspension. 27 Plaintiff additionally notes that on December 9, 2019, his “phone(s) had been installed as a modems [sic],” (Am. Compl. 31 at ¶ 41), but Plaintiff does not explain what this means. 28 Plaintiff does not explain, and the Court cannot discern, the significance of the “suspicious Amazon IP addresses.” meeting was previously scheduled for December 10, 2021, where Plaintiff requested Human Resources be present, and Human Resources rescheduled it. (Am. Compl. 31 at ¶ 43). 30 Plaintiff also asked Wambaugh about “the final warning grievance, and the Employer's failure to respond to the information request in time.” (Am. Compl. 33 at ¶ 51). Plaintiff does not clarify what information he sought and whether any information was conveyed by Wambaugh. 31 Plaintiff alleges that Wambaugh told Plaintiff that she was not going to file the ADHD discrimination grievance and that she had not known that Plaintiff had ADHD. (Am. Compl. 33–34 at ¶ 52). 32 Plaintiff wanted his NYU emails because he sought proof that Defendants were being dishonest about the grievances they filed. (Am. Compl. 13). Plaintiff suggests that Defendants withheld his emails so that he “wouldn't have proof during arbitration.” (Am. Compl. 13). 33 Plaintiff also had intended to file a grievance about the grievance process, which Lanzo allowed, but Wambaugh said was not done. (Am. Compl. 33 at ¶ 51); (Am. Compl. 34 at ¶ 57). 34 The amended document shows the provision violated changed from “Article 5 – No Discrimination and all other Articles that apply” to “Article 37 – Health and Safety.” The nature of grievance was further amended from “Mr. Morren was discriminated against based on having a disability” to “The university failed in its obligation and policy's [sic] to maintain a healthy and safe working conditions [sic].” (ECF 49-2, Exhibit 3 (January 16, 2020 Step 1 Grievance) (Amended 1/22/2020 Step 1 Grievance)). 35 Plaintiff further alleges: “[T]hey said I requested FMLA while I was employed, they said that was false. Lincoln Financial also informed me that their point of contact at the Employer was Enrique Yanez. NYU, between the 24th and the 26th, how did they get in contact with Enrique Yanez, At home on his personal time? [A]nd, I note that Yanez is not the person who handles leave claims at NYU. As such, I believe that my claim was denied because the Employer is retaliating against me.” (Am. Compl. 34 at ¶ 54). 36 Plaintiff then alleges: “I believe that the approval of the short-term claim was part of the Employer's retaliation against me. I also believe that the Employer was engaged in a conspiracy with my doctor to retaliate against me, which led to medical malpractice, doctoring of my medical records, and prescribing me with medication for ailments I was not diagnosed with, which causes suicide and other life threatening diseases. Maliciously [i]nciting a suicide attempt is attempted murder.” (Am. Compl. 36 at ¶ 61). 37 Allegations about Wambaugh allegedly giving Plaintiff the “incorrect FMLA leave Request Instructions (Am. Compl. at 6), and UCATS’ failure to file a grievance—all of which occurred before June 18, 2020 (Am. Compl. at ¶¶ 7, 9, 14–16, 17, 20, 37–38, 40, 41) (Am. Compl. at 6)—are time barred. Even if these claims were not time-barred, however, Plaintiff has not alleged any facts that support his claim that UCATS declined to file grievances on Plaintiff's request with an improper intent, purpose, or motive. Without any supporting facts, this assertion is conclusory, and insufficient to state a claim for breach of the duty of fair representation. See Stoner v. Walsh, 772 F. Supp. 790, 806–07 (S.D.N.Y. 1991) (Mukasey, J.). Where Plaintiff alleges slightly more, the allegations are still conclusory and circular, and should be dismissed. 38 Employment discrimination claims under Section 1981 and the NYSHRL are analyzed under the same framework as Title VII. McGill v. University of Rochester, 600 F. App'x 789, 790 (2d Cir. 2015). “[C]ourts must is reasonably possible.” Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 109 (2d Cir. 2013) (internal quotation marks omitted). “[T]o state a claim for discrimination under the NYCHRL, a plaintiff must only show differential treatment of any degree based on a discriminatory motive; ‘the NYCHRL does not require either materially adverse employment actions or severe and pervasive conduct.’ ” Carter v. Verizon, No. 13-CV-7579 (KPF), 2015 WL 247344, at *5 (S.D.N.Y. Jan. 20, 2015) (quoting Gorokhovsky v. N.Y.C. Hous. Auth., 552 F. App'x 100, 102 (2d Cir. 2014)). 39 Aside from the NYSHRL and NYCHRL having a broader definition of “disability,” “[t]he standard for pleading a claim for disability discrimination under the NYSHRL and the NYCHRL is virtually identical to the ADA.” Marquez v. Starrett City Assocs., 406 F. Supp. 3d 197, 207 (E.D.N.Y. 2017). 40 Indeed, “[b]eing forced to endure a hostile work environment is one type of adverse employment action.” Dietrich v. City of New York, No. 18 CIV. 7544 (CM), 2020 WL 4226591, at *16 (S.D.N.Y. July 23, 2020). 41 While Plaintiff alleges that he sought to file a grievance about the grievance process, he does not allege any facts about the process and procedure for filing grievances, or how the process was allegedly different for him due to his membership in a protected class. (Am. Compl. 34–35 at ¶ 53, 57). 42 The case law governing a union's liability for hostile work environment under the NYSHRL and NYCHRL is less clear. Most cases, however, hold that NYSHRL and NYCHRL claims against a union “are subsumed by the duty of fair representation when the gist of the claim is the failure to represent the plaintiff in a fair and non-discriminatory manner.” Gallagher v. AEG Mgmt. Brooklyn, LLC, No. 16-CV-4779, 2017 WL 2345658, at *7 (E.D.N.Y. May 30, 2017) (collecting cases). 43 Generally, an employer is not liable as a matter of law for harassment resulting “from nonwork-related, off- duty interactions between co-employees, because those actions are not part of the work environment.” See Devlin v. Teachers’ Ins. & Annuity Ass'n of Am., No. 02-CV-3228 (JSR), 2003 WL 1738969, at *2 (S.D.N.Y. Apr. 2, 2003) (granting the defendant's motion for summary judgment on the plaintiff's sexual harassment claim because, inter alia, the plaintiff's co-worker's acts occurred at a bar outside of work hours) (quotation & citation omitted). 44 To the extent any part of Plaintiff's claims under the NYSHRL fall under the less demanding NYCHRL standard, his claims also fail for the reasons discussed herein. The burden to state a claim under the NYCHRL is somewhat less demanding, requiring the plaintiff to allege: (i) that the plaintiff was “treated less well than other employees;” and (ii) that such treatment was because of the plaintiff's protected class. Wilson v. JPMorgan Chase Bank, N.A., No. 20-CV-4558, 2021 U.S. Dist. LEXIS 45132, at *13 (S.D.N.Y. Mar. 10, 2021). 45 Plaintiff must also establish these elements under the NYCHRL, except that instead of an adverse employment action, he need only prove that “something happened that would be reasonably likely to deter a person from engaging in protected activity.” Wilson, 2021 U.S. Dist. LEXIS 45132, at *20. 46 Even though Plaintiff has not pleaded a prima facie case for discrimination that would, under McDonnell Douglas, shift the burden to Defendants to provide a legitimate non-discriminatory reason for Plaintiff's suspension and termination, Plaintiff nonetheless acknowledges that NYU's proffered reasons for his suspensions and termination were because of Plaintiff's interpersonal conflicts with coworkers. (Am. Compl. 30 at ¶ 37, 38). 47 In fact, only Plaintiff's January 16, 2020 Grievance Form states that Plaintiff “was discriminated against based on having a disability.” (ECF 49-2, Exhibit 3 (January 16, 2020 Step 1 Grievance). The Grievance does not reference Plaintiff's race or national origin, at all. ADHD is related to any alleged adverse employment action. 49 Even if Plaintiff has a disability under the broader NYSHRL definition in light of his ADHD diagnosis (ECF 65-7 at 1), it is unnecessary for me to evaluate this since Plaintiff fails to allege any adverse employment action giving rise to an inference of disability discrimination. See Nugent v. St. Luke's/Roosevelt Hosp. Ctr., No. 05-CV-5109 (JCF), 2007 WL 1149979, at *19 (S.D.N.Y. Apr. 18, 2007), aff'd sub nom. Nugent v. St. Lukes-Roosevelt Hosp. Ctr., 303 F. App'x 943 (2d Cir. 2008). 50 Plaintiff does not allege any facts involving UCATS and the Court cannot discern any Civil Rights § 79-n claim against them. 51 As Defendants point out, at least one court has dismissed a Section 79-n claim because it was brought against an organization and not an individual. Morrison v. Shalach, 67 Misc. 3d 451, 457, 124 N.Y.S.3d 512 (N.Y. Sup. Ct. Westchester Cty. 2020). 52 Plaintiff compares his experience to that of his coworkers Speizale and Wambold, who he alleges could come into the building “on their days off,” use the workstations, and were “never asked to leave” or have NYPD “called to arrest them for criminally trespassing. (Am. Compl. 32 at ¶ 46). But Plaintiff's comparison falls short in this instance because Plaintiff was not given a day off when he was told to leave—he had already been suspended from working at NYU. End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2022 WL 1665013 dismiss; and (iii) UCATS Local 3882 did not process his Only the Westlaw citation is currently available. grievances. (See Dkt. No. 79 (“Pl.'s Objections”) at 1-2.) United States District Court, S.D. New York. In reviewing a report and recommendation, a district judge “must determine de novo any part of the magistrate judge's Darwyn M. MORREN, Plaintiff, disposition that has been properly objected to.” Fed. R. Civ. P. v. 72(b). In reviewing a pro se party's submissions, the court is NEW YORK UNIVERSITY, et al., Defendant. “obligated to afford a special solicitude,” Tracy v. Freshwater, 623 F.3d 90, 101 (2d Cir. 2010), so such submissions are 20-CV-10802 (JPO) read “to raise the strongest arguments that they suggest,” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Signed 05/25/2022 Cir. 2006) (per curiam). Attorneys and Law Firms Plaintiff's objections here are without merit. Magistrate Judge Wang's report and recommendation concerns Defendants' Darwyn M. Morren, Westbury, NY, Pro Se. motions to dismiss the amended complaint, not any motion to Jessica Rose Schild, Robert Mossman Tucker, Ogletree, further amend the complaint. (See R. & R. at 49.) Defendants Deakins, Nash, Smoak & Stewart, P.C., New York, NY, for filed these motions on ECF, and Plaintiff had consented to the Defendant. electronic service of court documents through ECF. (See Dkt. No. 3.) Finally, Plaintiff does not meaningfully contest that his claims against UCATS Local 3882 relating to the failure to process his grievances are time-barred. Plaintiff brings a ORDER ADOPTING REPORT claim that UCATS breached its duty of representation, but AND RECOMMENDATION a plaintiff has only six months to bring suit from the time J. PAUL OETKEN, District Judge: he “knew or should have known of the breach of the duty of fair representation.” White v. White Rose Food a Div. of *1 Pro se Plaintiff Darwyn M. Morren sues New York DiGiorgio Corp., 128 F.3d 110, 114 (2d Cir. 1997). Such a University and UCATS Local 3382 under Title VII of the claim accrues “at the latest” by the date of a National Labor Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; 42 Relations Board (“NLRB”) charge. Kovowras v. N.Y. Times U.S.C. § 1981; the Americans with Disabilities Act of 1990, Co., 328 F.3d 50, 55 (2d Cir. 2003). Plaintiff filed an unfair 42 U.S.C. § 12101 et seq.; the Family and Medical Leave Act labor practice charge with the NLRB on June 15, 2020. (See of 1993, 29 U.S.C. § 2601 et seq.; the Labor Management Dkt. No. 49-5 (“NLRB Charge”).) In that charge, he alleged Relations Act, 29 U.S.C. § 185; 42 U.S.C. § 1985; the that UCATS failed to fairly represent him. (See id. at 2.) Immigration Reform and Control Act of 1986, 8 U.S.C. Plaintiff had until December 15, 2020, to bring suit, but he § 1101 et seq; the New York State Human Rights Law, did not do so. (See Dkt. No. 1 (“Compl”).) Accordingly, even N.Y. Exec. Law § 290 et seq., the New York City Human if Plaintiff's allegations are true, his claim must be dismissed. Rights Law, N.Y. City Admin. Code § 8-101 et seq; and New York Civil Rights Law § 79-n. Plaintiff also brings *2 The remainder of the report and recommendation is claims for breach of contract and negligent infliction of adopted in full. Where there is no objection, a district court emotional distress. (See Dkt. No. 25 (“Am. Compl”); Dkt. No. reviews for clear error. See Fed. R. Civ. P. 72(b), Advisory 25-1 (“Pl.'s Memo”) 4-14.) Defendants have each moved to Committee's Notes (1983) (“When no timely objection is dismiss the amended complaint for failure to state a claim. filed, the court need only satisfy itself that there is no (See Dkt. No. 47 (“UCATS Mot.”); Dkt. No. 53 (“NYU clear error on the face of the record in order to accept the Mot.”).) In a report and recommendation, Magistrate Judge recommendation.”); see also Borcsok v. Early, 299 F. App'x Ona T. Wang has recommended that Defendants' motions to 76, 77 (2d Cir. 2008). Magistrate Judge Wang's thorough and dismiss be granted. (See Dkt. No. 76 (“R. & R.”) at 49.) well-reasoned report presents no errors, clear or otherwise. Plaintiff objects to the report and recommendation only on For the foregoing reasons, Plaintiff's objections are overruled the grounds that (i) he did not file a motion to amend his and Judge Wang's Report and Recommendation (Dkt. No. are GRANTED. Further, for the reasons explained by Judge Numbers 47 and 53. Wang, Plaintiff is granted leave to amend his discrimination claims for hostile work environment and retaliation and his SO ORDERED. FMLA claims, provided that he must file a proposed second amended complaint repleading those claims within thirty days All Citations after the date of this order. Not Reported in Fed. Supp., 2022 WL 1665013 End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2008 WL 11438085 Pl.'s 56.1 Stmt ¶ 4.) Only the Westlaw citation is currently available. United States District Court, S.D. New York. Later, in 1993, Plaintiff's title was reclassified to the position of Housekeeper, Grade VII. (Def.'s 56.1 Stmt ¶ 5; Pl.'s 56.1 Ted PERRY, Plaintiff, Stmt ¶ 5.) The titles of two other employees – Roger Emery v. (“Emery”) and John Ponce (“Ponce”), both of whom are COUNTY OF WESTCHESTER, Defendant. Caucasian – were also reclassified to Housekeeper, but, unlike Plaintiff, these employees filed a union grievance regarding Case No. 06-CV-3000 (KMK) this reclassification. (Def.'s 56.1 Stmt ¶¶ 6-7; Pl.'s 56.1 Stmt ¶¶ 6-7.) Emery and Ponce were successful in their grievance Signed 03/31/2008 and had their positions reclassified to Maintenance Mechanic. (Def.'s 56.1 Stmt ¶ 8; Pl.'s 56.1 Stmt ¶ 8; Aff. of Stuart E. Attorneys and Law Firms Kahan, Ex. H (“Kahan Aff.”).) Pamela D. Hayes, Esq., Law Office of Pamela D. Hayes, Esq., In the fall of 1995, Plaintiff was suspended for approximately New York, New York, Counsel for Plaintiff. sixty days without pay in connection with an altercation Stuart E. Kahan, Esq., Oxman Tulis Kirkpatrick Whyatt & between Plaintiff and a co-worker. (Def.'s 56.1 Stmt ¶¶ 9-12; Geiger, LLP, White Plains, New York, Counsel for Defendant. Pl.'s 56.1 Stmt ¶¶ 9-12; Kahan Aff., Ex. J.) Plaintiff was soon thereafter reassigned to the Division of General Maintenance in November 1995. (Def.'s 56.1 Stmt ¶ 13; Pl.'s 56.1 Stmt ¶ 13.) Years later, in 2000, Plaintiff was reassigned to Croton OPINION AND ORDER Point Park, and in 2001, Plaintiff was again reassigned to KENNETH M. KARAS, UNITED STATES DISTRICT the Bronx River Parkway Reservation, where he reported to JUDGE superintendent Robert Bates (“Bates”). (Def.'s 56.1 Stmt ¶¶ 21-22; Pl.'s 56.1 Stmt ¶¶ 21-22.) *1 On April 19, 2006, Plaintiff Ted Perry (“Plaintiff”) filed this employment discrimination suit against Defendant Plaintiff was issued a warning notice by Bates on May 14, County of Westchester (“Defendant”). Before the Court 2002 for “refus[ing] to do the work assigned to him and is Defendant's Motion for Summary Judgment, seeking [for leaving the] work site without permission.” (Def.'s 56.1 dismissal of Plaintiff's Complaint. For the reasons stated Stmt ¶ 23; Pl.'s 56.1 Stmt ¶ 23.) On October 24, 2002, Bates herein, Defendant's Motion is GRANTED. issued to Plaintiff another warning notice, citing Plaintiff for “time abuse.” (Def.'s 56.1 Stmt ¶ 25; Pl.'s 56.1 Stmt ¶ 25.) According to Plaintiff, on November 8, 2002, he missed I. Background several hours of work to answer a jury summons in the Bronx County Courthouse. (Def.'s 56.1 Stmt ¶ 26; Pl.'s 56.1 A. Employment and Disciplinary History Stmt ¶ 26.) Plaintiff alleges that on the following work day, The following facts are undisputed, except where indicated. November 12, 2002, Bates reprimanded Plaintiff for attending Plaintiff, an African-American man, began his employment jury duty and told him that his pay would be docked for the with Defendant in June 1988 as a seasonal laborer in the time missed. (Def.'s 56.1 Stmt ¶ 27; Pl.'s 56.1 Stmt ¶ 27.)1 Department of Parks Recreation and Conservation. (Def.'s Defendant claims that Plaintiff's time was never docked for Revised Statement of Material Facts Pursuant to Local Civil jury duty (Def.'s 56.1 Stmt ¶ 28), but Plaintiff insists that it Rule 56.1(a) ¶¶ 1-2 (“Def.'s 56.1 Stmt”); Pl.'s Revised was (Decl. of Pl. Ted Perry in Opp'n to Def.'s Mot. for Summ. Counter-Statement of Material Facts Pursuant to Local Rule J. ¶ 14 (“Pl.'s Decl.”) ). On November 25, 2002, Plaintiff was 56.1(b) ¶¶ 1-2 (“Pl.'s 56.1 Stmt”).) Shortly thereafter, in issued another warning notice, this time for taking time off July 1988, Plaintiff was promoted to a full-time Maintenance on November 18, 2002, though he had already used up all Laborer, Grade IV. (Def.'s 56.1 Stmt ¶ 3; Pl.'s 56.1 Stmt of his available time. (Kahan Aff., Ex. Y.) Plaintiff, however, ¶ 3.) In 1992, Plaintiff was promoted to the position of denies missing work on November 18, 2002, and insists that this warning notice was actually for the time he missed notices were issued to Plaintiff on December 30, 2002, for tasks which had no relationship failing to produce a driver's license, and on January 24, 2003 to his duties. He was docked for and January 27, 2003, for calling in sick with no sick leave performing legitimate duties, such balance. (Kahan Aff, Ex. AA, BB.) as jury duty, all the while white employees were given time off to *2 On May 2, 2003, Plaintiff injured his back while working, go to court. He was disciplined, which he did not report until May 5, 2003. (Def.'s 56.1 Stmt while other white employees were ¶¶ 34-35; Pl.'s 56.1 Stmt ¶¶ 34-35.) Also on May 5, Plaintiff not disciplined for the same or worse was issued a warning notice for inappropriate conduct and behavior. Said discrimination occurred insubordination. (Kahan Aff., Ex. DD.) That was the last day solely because of Plaintiff's race, and Plaintiff went to work. Plaintiff was issued two more warning amounted to a hostile environment. notices, on May 8, 2003 and May 9, 2003, both for failing to report to work and failing to call in. (Def.'s 56.1 Stmt ¶ 37; Pl.'s 56.1 Stmt ¶ 37.) Thereafter, Plaintiff began collecting (Id. 1-2.) worker's compensation and social security disability benefits. (Def.'s 56.1 Stmt ¶ 39; Pl.'s 56.1 Stmt ¶ 39.) Defendant officially terminated Plaintiff's employment on October 28, C. Procedural History 2004. (Def.'s 56.1 Stmt ¶¶ 44-45; Pl.'s 56.1 Stmt ¶¶ 44-45.) On October 5, 1999, Plaintiff filed a complaint alleging harassment on account of his race with the Westchester County Equal Employment Opportunity/Affirmative Action B. Plaintiff's Allegations of Discrimination Office (“EEO/AAO”). (Def.'s 56.1 Stmt ¶ 14; Pl.'s 56.1 Stmt Plaintiff alleges that Defendant discriminated against him on ¶ 14.) In February 2000, the EEO/AAO determined that there the basis of race in violation of Title VII of the Civil Rights existed no evidence of racial discrimination or harassment, Act of 1964 and of the Civil Rights Act of 1866, 42 U.S.C. and in May 2000, the EEO/AAO closed its file on Plaintiff's § 1981. Plaintiff claims that he was subjected to disparate complaint. (Def.'s 56.1 Stmt ¶¶ 15-16; Pl.'s 56.1 Stmt ¶¶ treatment and a hostile work environment when he was forced 15-16.) Plaintiff filed a complaint dated June 2, 2000 with to work out-of-title – while his Caucasian co-workers were the Equal Employment Opportunity Commission (“EEOC”), not – from 1995 through May 5, 2003, performing dangerous alleging racial discrimination and retaliation premised on a and undesirable tasks that had no relationship to his job duties continuing violation spanning from August 2, 1999 to April and that ultimately resulted in his back injury. (Compl. 3-4, 14, 2000. (Def.'s 56.1 Stmt ¶ 17; Pl.'s 56.1 Stmt ¶ 17.) In June 7-8.)2 Further, Plaintiff asserts that, from 1999 to 2003, he 2001, the EEOC issued to Plaintiff a Dismissal and Notice of was subjected to a hostile work environment when he was Rights Letter, in which it “adopted the findings of the State disciplined for minor infractions, while Caucasian employees or Local Fair Employment Practices Agency that investigated were not disciplined for the same or worse behavior. (Id. 3.) this charge.” (Def.'s 56.1 Stmt ¶ 19; Pl.'s 56.1 Stmt ¶ 19.) One incident highlighted by Plaintiff is alleged to have taken Plaintiff never filed a lawsuit in connection with these claims. place in November 2002, when Plaintiff claims to have had (Def.'s 56.1 Stmt ¶ 20; Pl.'s 56.1 Stmt ¶ 20.) his pay docked for attending jury duty. Plaintiff asserts that Caucasian employees – in particular, Jason Aubry (“Aubry”) *3 On August 11, 2003, Plaintiff filed another complaint – were never docked pay for attending court appearances. (Id. alleging discrimination with the New York State Department 4-5, 7.) of Human Rights (“NYSDHR”). (Def.'s 56.1 Stmt ¶ 40; Pl.'s 56.1 Stmt ¶ 40.) In this complaint, Plaintiff claimed that he In sum, Plaintiff alleges that: had been treated disparately by Defendant due to his race from 1999 until May 5, 2003, and that he had been assigned undesirable tasks at work since 1999. (Kahan Aff., Ex. GG.) Plaintiff has continually been The NYSDHR determined on September 28, 2005, that there disciplined and treated in a disparage existed no probable cause to support Plaintiff's allegations of [sic] fashion, due to his race. He discrimination. (Def.'s 56.1 Stmt ¶ 42; Pl.'s 56.1 Stmt ¶ 42.) was forced to work out of title since On January 17, 2006, the EEOC issued to Plaintiff a Dismissal Stmt ¶ 43.) deadline set by Judge Colleen McMahon, to whom this case was originally assigned. On June 28, 2007, Judge McMahon Plaintiff initiated the present lawsuit on April 19, 2006, issued an order, stating: “Plaintiff's opposition was due March alleging: (i) employment discrimination in violation of Title 12, 2007. The court has not received any response. Plaintiff VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. has 30 days to file a response to the motion. If no response has § 2000e-5(f) (Compl. 8); and (ii) racial discrimination in been filed, the motion will be deemed submitted and the court violation of the Civil Rights Act of 1866, 42 U.S.C. § 1981 will decide it without benefit of any response.” (Docket No. (id. 6). Discovery closed on January 3, 2007. On February 27.) Plaintiff failed to file opposition papers within the thirty- 26, 2007, Defendant filed a Motion for Summary Judgment day deadline set by Judge McMahon on June 28, 2007. On pursuant to Federal Rule of Civil Procedure 56(b), seeking August 6, 2007, the case was reassigned to this Court. Plaintiff summary judgment in its favor on the following grounds: finally filed opposition papers on August 22, 2007 – without explanation as to the delay or permission from the Court to do so. The Court held oral argument on March 11, 2008. (a) portions of plaintiff's complaint For reasons stated herein, Defendant's Motion for Summary are time barred pursuant to the Judgment is GRANTED. 300 day limitations period set forth [in] 42 U.S.C. § 2000e-5(e); (b) plaintiff may not seek damages due II. Discussion to his termination from employment since plaintiff failed to exhaust A. Standard of Review administrative remedies; (c) the Summary judgment may be granted when it is shown that plaintiff has failed to make out a prima there is “no genuine issue as to any material fact and that facie case of racial discrimination via the movant is entitled to judgment as a matter of law.” Fed. disparate treatment since the plaintiff R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. cannot prove that he was subjected 317, 322-23 (1986). The Court must view all evidence in to an adverse employment action or the light most favorable to the non-moving party and must that a reasonable inference of racial draw all reasonable inferences in the non-movant's favor. discrimination can be reached based See Tufariello v. Long Island R.R. Co., 458 F.3d 80, 85 (2d upon defendant's actions; (d) assuming Cir. 2006). A party seeking summary judgment bears the that plaintiff has met the minimal burden of establishing that no genuine issue of material fact requirements for a prima facie case exists. See Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 of racial discrimination, the County (1970); Segal v. City of New York, 459 F.3d 207, 211 (2d Cir. presented a race neutral reason for 2006). “Once the moving party has made a properly supported its employment decisions regarding showing sufficient to suggest the absence of any genuine issue [Plaintiff] and the plaintiff cannot as to a material fact, the nonmoving party, in order to defeat prove that the County's actions were summary judgment, must come forward with evidence that mere pretext; (e) the plaintiff's claim would be sufficient to support a jury verdict in his favor.” based upon the existence of a hostile Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, work environment must be dismissed 18 (2d Cir. 1995). “The motion ‘will not be defeated merely ... because there is no evidence that on the basis of conjecture or surmise.’ ” Id. (quoting Bryant such an environment existed; and (f) v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991) ); see also plaintiff's Section 1981 claim must be McPherson v. N.Y. City Dep't of Educ., 457 F.3d 211, 215 n.4 dismissed. (2d Cir. 2006) (“[S]peculation alone is insufficient to defeat a motion for summary judgment.”); Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (“[The non-movant] must do (Def.'s Mem. of Law in Supp. of Def. County of Westchester's more than simply show that there is some metaphysical doubt Mot. for Summ. J. 1-2 (“Def.'s Mem.”).) as to the material facts.” (internal quotation marks omitted) ). will be governed by substantive law. See Anderson v. Liberty 5-6.) Lobby, Inc., 477 U.S. 242, 248 (1986). At summary judgment, the Court is not charged with weighing the evidence and To these arguments, Plaintiff responds that his present claims determining its truth, but with determining whether there is are not dependent on any discrete acts occurring before those a genuine issue for trial. See Westinghouse Elec. Corp. v. time periods but insists that consideration of past acts is N.Y. City Transit Auth., 735 F. Supp. 1205, 1212 (S.D.N.Y. appropriate in demonstrating the existence of a hostile work 1990); see also Castro v. Metro. Transp. Auth., No. 04- environment and validating a theory of a continuing violation CV-1445, 2006 WL 1418585, at *2 (S.D.N.Y. May 23, 2006). based on disparate treatment and out-of-title work. (Pl.'s A court's goal should be to “isolate and dispose of factually Mem. of Law in Opp'n to Def. County of Westchester's Mot. unsupported claims.” Celotex, 477 U.S. at 323-24. for Summ. J. Pursuant to Fed. R. of Civ. P. 56(b) 4 (“Pl.'s Mem.”) (“These instances provide the Court with a history While courts are to be “particularly cautious” about granting of how the underlying cause of action came to pass and does summary judgment to employers in cases where the not specifically ask for action on events which started years discriminatory intent of the employer is contested, Schwapp earlier. It merely demonstrates the theory of a continuing v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997), “[i]t is violation.”).) now beyond cavil that summary judgment may be appropriate even in the fact-intensive context of discrimination cases,” *5 The Supreme Court has made clear that discrete acts Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d occurring more than 300 days before Plaintiff filed his Cir. 2001). Though district courts must pay careful attention complaint with the NYSDHR are not actionable. See Nat'l to affidavits and depositions that may reveal circumstantial R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002) proof of discrimination, see Gallo v. Prudential Residential (“[D]iscrete discriminatory acts are not actionable if time Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994), courts barred, even when they are related to acts alleged in are not to “treat discrimination differently from other ultimate timely filed charges. Each discrete discriminatory act starts questions of fact.” Abdu-Brisson, 239 F.3d at 466 (quoting a new clock for filing charges alleging that act. The charge, Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, therefore, must be filed within the ... 300-day time period 148 (2000) ); see also Schiano v. Quality Payroll Sys., Inc., after the discrete discriminatory act occurred.”). Recently, in 445 F.3d 597, 604 (2d Cir. 2006) (noting the caution with Ledbetter v. Goodyear Tire & Rubber Co., the Supreme Court which the Second Circuit reviews the grant of summary elaborated: judgment in discrimination cases “because direct evidence of discriminatory intent is rare and such intent often must be inferred from circumstantial evidence found in affidavits and A new violation does not occur, depositions[,]” but stating that “summary judgment remains and a new charging period does available for the dismissal of discrimination claims in cases not commence upon the occurrence lacking genuine issues of material fact” (internal quotation of subsequent nondiscriminatory acts marks omitted) ). that entail adverse effects resulting from past discrimination. But of course, if an employer engages in B. Applicable Time Limitations a series of acts each of which is In its Motion for Summary Judgment, Defendant argues that intentionally discriminatory, then a Plaintiff is not entitled to base his claim on any discrete acts fresh violation takes place when each of alleged discrimination occurring before October 14, 2002 act is committed.... [C]urrent effects because such acts are more than 300 days before Plaintiff's alone cannot breathe life into prior, NYSDHR complaint was filed.3 (Def.'s Mem. 3.) Further, uncharged discrimination.... Defendant argues that acts of alleged discrimination that served as the basis of Plaintiff's 1999 complaint with the NYSDHR may not form the basis of Plaintiff's present claim 127 S. Ct. 2162, 2169 (2007) because Plaintiff failed to file suit on those acts within ninety EEOC complaints are also not actionable because Plaintiff improper purpose and no discriminatory intent is rendered failed to bring suit on those acts within ninety days from unlawful nonetheless because it gives some effect to an receipt of the EEOC Notice of Rights letter. To the extent that intentional discriminatory act that occurred outside the the second right-to-sue letter, dated January 2006, is based charging period.” Ledbetter, 127 S. Ct. at 2172. on the same facts as the first, Plaintiff cannot complain about those claims in this lawsuit. See Lo v. Pan Am. World Airways, *6 To the extent Plaintiff is able to establish that there 787 F.2d 827, 828 (2d Cir. 1986) (per curiam) (denying claims existed a hostile work environment during his employment where second EEOC complaint was based on same facts as with Defendant, recovery may be premised even on untimely earlier lapsed right-to-sue letter). However, the June 2001 acts as long as they – in conjunction with timely acts – created right-to-sue letter will not preclude the current suit “to the a hostile work environment. The Court notes, however, that extent that plaintiff's Complaint is based on allegations in the even if the past acts contributed to a hostile work environment second [EEOC complaint] which did not appear in the first under a continuing violation theory, those acts would not [EEOC complaint].” Dahbany-Miraglia v. Queensboro Cmty. be actionable to the extent that they formed the basis of Coll., No. 03-CV-8052, 2004 WL 1192078, at *7 (S.D.N.Y. Plaintiff's 1999 complaint. Plaintiff's opportunity to file suit May 27, 2004). Time-barred acts will only be considered on those alleged violations has long since passed and no to the extent that they constitute “background evidence in tolling doctrine will revive them at this point. With respect support of a timely claim.” Morgan, 536 U.S. at 113 (“The to Plaintiff's disparate treatment claim based on adverse existence of past acts and the employer's prior knowledge employment actions, Plaintiff can only rely on discrete acts of their occurrence, however, does not bar employees from of alleged discrimination occurring within the 300-day period filing charges about related discrete acts so long as the acts are preceding Plaintiff's August 11, 2003 EEOC complaint. See independently discriminatory and charges addressing those Morgan, 536 U.S. at 113. acts are themselves timely filed.”); see also Williams v. British Airways, PLC, 06-CV-5085, 2007 WL 2907426, at *11 n.20 (E.D.N.Y. Sept. 27, 2007) (“[C]ertain incidents, even if time- C. Plaintiff's Request to Supplement the Record barred, ‘may constitute relevant background evidence in a On March 13, 2008, after March 11 oral argument, Plaintiff's proceeding in which the status of a current practice is at issue.’ counsel submitted to the Court an application to supplement ” (quoting Morgan, 536 U.S. at 112) ). the record with a new affidavit from Plaintiff and with what appears to be the minutes of a meeting held on November The continuing violation theory is a tolling mechanism that 9, 1999.4 According to Plaintiff's counsel, these additional rarely permits recovery for otherwise untimely violations. submissions “clearly show Plaintiff was treated differently, See Santiago v. Newburgh Enlarged City Sch. Dist., 485 F. that everyone knew about it ... and [that] Plaintiff was held to Supp. 2d 327, 331 (S.D.N.Y. 2007) (“Very few acts qualify as a different standard which was discriminatory and caused him continuing violations, so as to trigger a continuous tolling of to suffer damages.” (Letter from Pamela D. Hayes, Esq., to the the statute of limitations.”). A hostile work environment claim Court, dated March 17, 2008.) Notably absent from Plaintiff's is a type of continuing violation based on the “cumulative counsel's recent submissions is an explanation as to why it has affect of individual acts,” which together constitute “one taken until now to submit these items to the Court – over a unlawful employment practice.” See Morgan, 536 U.S at year after Plaintiff's full response to Defendant's Motion was 115. “It does not matter, for purposes of the [time limitation due. in the] statute, that some of the component acts of the hostile work environment fall outside the statutory time “Under Fed. R. Civ. P. 6(b)(2), the Court has discretion to period. Provided that an act contributing to the claim occurs allow plaintiff to submit new evidence if the Court determines within the filing period, the entire time period of the hostile that plaintiff's failure to submit such evidence in a timely environment may be considered by a court for the purposes fashion ‘was the result of excusable neglect.’ ” Davidson v. of determining liability.” Id. at 117; accord Santiago, 485 Scully, 148 F. Supp. 2d 249, 251 (S.D.N.Y. 2001) (quoting F. Supp. 2d at 331 (“[I]n a hostile work environment case, Davidson v. Keenan, 740 F.2d 129, 132 (2d Cir. 1984) acts outside the 300 day limit that contribute to an ongoing ). “The determination whether neglect is ‘excusable’ in a hostile work environment are actionable under a continuing particular case rests with the sound discretion of the district violation theory.”). The Supreme Court, however, has rejected court.” Keenan, 740 F.2d at 132. In making the equitable submission of new evidence constitutes excusable neglect, the Green, 411 U.S. 792 (1973), “established an allocation of factors that the Court may consider include: “ ‘the danger of the burden of production and an order for the presentation of prejudice’ to the non-moving party, ‘the length of the delay proof in Title VII discriminatory-treatment cases.” St. Mary's and its potential impact on judicial proceedings, the reason Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993). First, the for the delay, including whether it was within the reasonable plaintiff must establish, by a preponderance of the evidence, control of the movant, and whether the movant acted in good a prima facie case of racial discrimination. Id. Plaintiff's faith.’ ” Scully, 148 F. Supp. 2d at 251-52 (quoting Pioneer burden in establishing a prima facie case is “de minimis.” Inv. Servs. Co. v. Brunswick Assoc. Ltd. P'ship, 507 U.S. 380, See Douglas v. Dist. Council 37 Mun. Employees' Educ. Fund 395 (1993) ). Trust, 207 F. Supp. 2d 282, 289 (S.D.N.Y. 2002). However, a party's bald assertions, without more, are insufficient to Here, the Court has little trouble finding that Plaintiff (or, overcome a motion for summary judgment. See Carey v. really his counsel) has failed to meet the excusable neglect Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991); Meiri v. Dacon, burden. The information Plaintiff seeks to add was available 759 F.2d 989, 998 (2d Cir. 1985) (“To allow a party to to him long ago (over a year) and obviously any first- defeat a motion for summary judgment by offering purely hand testimony he offers has always been available to him. conclusory allegation of discrimination, absent any concrete Moreover, Defendant is plainly prejudiced by the late use particulars, would necessitate a trial in all Title VII cases.”); of this information as it likely would have been the subject Fair v. Weiburg, No. 02-CV-9218, 2006 WL 2801999, at *3 of rigorous inquiry during Plaintiff's deposition and other (S.D.N.Y. Sept. 28, 2006) (“To avoid summary judgment ... discovery. Nor is there good faith. Plaintiff's counsel only the non-moving party must offer ‘some hard evidence’ of its tendered these new offerings when it was clear that her initial version of the facts, not merely rely on conclusory allegations representations were exposed as wholly unsupported by the or speculation.”); During v. City Univ. of N.Y., No. 01- record as it existed at the time the Motion was fully briefed. CV-9584, 2005 WL 2276875, at *4, *8-9 (S.D.N.Y. Sept. 19, Thus, the Court finds the extraordinary delay here to be 2005) (granting summary judgment on discrimination claim inexcusable. Therefore, Plaintiff's request to supplement the where only evidence was conclusory allegations of plaintiff). record with the March 13 submissions is denied. The establishment of a prima facie case gives rise to a presumption of discrimination. Tex. Dep't of Cmty. Affairs D. Plaintiff's Claims of Employment Discrimination v. Burdine, 450 U.S. 248, 254 (1981). At that point, the *7 Plaintiff claims he was the victim of employment burden of production (not persuasion) shifts to the defendant discrimination. To establish a claim of racial discrimination, “to provide a legitimate, nondiscriminatory reason for [its] Plaintiff must show that either: “(1) an adverse employment decision.” Reg'l Econ. Cmty. Action Program, Inc. v. City action under circumstances giving rise to an inference of of Middletown, 294 F.3d 35, 49 (2d Cir. 2002) (hereinafter discrimination based on race; or (2) harassment on the basis of RECAP) (citing Reeves, 530 U.S. at 142 and Heyman v. race that amounts to a hostile work environment.” Williams, Queens Vill. Comm. for Mental Health for Jamaica Cmty. 2007 WL 2907426, at *11 (citing Feingold v. New York, 366 Adolescent Program, Inc., 198 F.3d 68, 72 (2d. Cir. 1999) F.3d 138, 149 (2d Cir. 2004) ). Plaintiff asserts claims of racial ). A defendant's burden in this regard is not high; indeed, discrimination based on each of these theories, so the Court a defendant need not prove that it was actually motivated will consider them in turn. by these legitimate reasons. See Deravin v. Kerik, No. 00- CV-7487, 2007 WL 1029895, at *6 (S.D.N.Y. Apr. 2, 2007) (citing Burdine, 450 U.S. at 254). 1. Disparate Treatment Claim & the McDonnell Douglas Framework If the defendant makes a satisfactory showing, the presumption of discrimination disappears and the burden Title VII of the Civil Rights Act of 1964 makes it an “unlawful shifts back to the plaintiff. See id. The plaintiff must then employment practice for an employer ... to discriminate “prove that the defendant[ ] intentionally discriminated against any individual with respect to his compensation, against [him] on a prohibited ground.” RECAP, 294 F.3d at terms, conditions, or privileges of employment, because of 49. In other words, the plaintiff must show that defendant's such individual's race....” 42 U.S.C. § 2000e-2(a)(1). The “articulated, legitimate, non-discriminatory reasons were Feingold, 366 F.3d at 152 (“If the defendant has stated a change’ in the terms and conditions of employment. To be neutral reason for the adverse action, ‘to defeat summary ‘materially adverse’ a change in working conditions must be judgment ... the plaintiff's admissible evidence must show more disruptive than a mere inconvenience or an alteration of circumstances that would be sufficient to permit a rational job responsibilities.” Galabya v. N.Y. City Bd. of Educ., 202 finder of fact to infer that the defendant's employment F.3d 636, 640 (2d Cir. 2000) (internal citations and quotation decision was more likely than not based in whole or in part marks omitted). The Second Circuit has “defined adverse on discrimination.’ ” (quoting Stern v. Trs. of Columbia Univ., employment action broadly to include ‘discharge, refusal to 131 F.3d 305, 312 (2d Cir. 1997) ) ); Deravin, 2007 WL hire, refusal to promote, demotion, reduction in pay, and 1029895, at *6 (“The plaintiff ‘may succeed in this either reprimand.’ ” Lovejoy-Wilson v. Noco Motor Fuel, Inc., 263 directly by persuading the court that a discriminatory reason F.3d 208, 223 (2d Cir. 2001) (quoting Morris v. Lindau, 196 more likely motivated the employer or indirectly by showing F.3d 102, 110 (2d Cir. 1999) ); accord Feingold, 366 F.3d that the employer's proffered explanation is unworthy of at 152 (“Examples of materially adverse employment actions credence.’ ” (quoting Burdine, 450 U.S. at 254) ). include termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, *8 Under McDonnell Douglas and its progeny, the plaintiff a material loss of benefits, significantly diminished material has the ultimate burden of proving discrimination, regardless responsibilities, or other indices ... unique to a particular of whether the defendant offers evidence of a legitimate situation.” (internal quotation marks omitted) ). reason for the adverse employment action at issue. See St. Mary's Honor Ctr., 509 U.S. at 507; Burdine, 450 U.S. at Plaintiff argues that the following constitute adverse 253; Calabro v. Westchester BMW, Inc., 398 F. Supp. 2d 281, employment actions: (1) the alleged docking of Plaintiff's pay 292 (S.D.N.Y. 2005) (holding that plaintiff ultimately has for attending jury duty on November 8, 2002 (Pl.'s Mem. 11); the burden of proving employer's discriminatory animus to and (2) the out-of-title work Plaintiff was allegedly forced to survive summary judgment). perform, particularly on May 2, 2003, which led to his back and neck injury and significant loss of earning potential (id. 9-11).5 Defendant argues that neither of these constitutes an a. Prima Facie Case adverse employment action. (Def.'s Mem. 10, 12-15.) A plaintiff may establish a prima facie case of disparate *9 Plaintiff alleges that he was docked pay for the several treatment by demonstrating: “1) that he belonged to a hours of work he missed on November 8, 2002, when he protected class; 2) that he was qualified for the position answered a jury summons in Bronx County. (Pl.'s Mem. 11; he held; 3) that he suffered an adverse employment action; Compl. 4.) On November 25, 2002, Bates issued to Plaintiff and 4) that the adverse employment action occurred under a warning notice, in which Bates wrote: “Mr. Perry has used circumstances giving rise to an inference of discriminatory up all his time and continues to take off. On November 18, intent.” Feingold, 366 F.3d at 152. 2002 [he] used 3 ½ hrs. [leave without pay]. This is warning no. 2.” (Kahan Aff., Ex. Y.) Because Plaintiff is an African-American man, he belongs to a protected class and thereby satisfies the first prong of Defendant argues that Plaintiff was never docked pay for his prima facie case. Defendant is willing to assume, as is attending jury duty on November 8, 2002, but that he was the Court, that Plaintiff was qualified for the position he docked 3.30 hours of pay for being absent on November held while working for Defendant, satisfying the second 18, 2002. In support of this position, Defendant submitted prong. (Def.'s Mem. 9.) Defendant argues that it is entitled Plaintiff's leave history, which shows that Plaintiff was not to summary judgment on Plaintiff's discrimination claim docked any time on November 8, 2002, and that he was because Plaintiff failed to satisfy the third and fourth prongs docked 3.30 hours on November 18, 2002. (Kahan Aff., of his prima facie case. Ex. W.) Defendant also offered affidavits from Joan Vassari, Defendant's director of personnel, and Bates, Plaintiff's then- supervisor, both of whom swear that Plaintiff was never docked pay for attending jury duty. (Aff. of Joan Vassari ¶ 13 i. Adverse Employment Action (“Vassari Aff.”); Aff. of Robert Bates ¶ 8 (“Bates Aff.”); Dep. never be docked for jury duty.”).) situation, no person shall be assigned to perform the duties of any position unless he has been duly appointed, promoted, The only evidence in the record that supports Plaintiff's transferred or reinstated to such position....” New York courts claim that he was docked pay for attending jury duty on have further defined out-of-title work to encompass situations November 8, 2002, is his own deposition testimony and his “when an employee has been assigned ... to perform the duties own declaration, in which Plaintiff claims that Bates told him of a higher grade, without a concomitant increase in pay, that he would be docked for attending jury duty. (Dep. of Ted frequently, recurrently and for long periods of time.” Sprague Perry 81-82 (“Pl.'s Dep.”); Pl.'s Decl. ¶ 14.) Plaintiff swears v. Governor's Office of Employee Relations, 786 N.Y.S.2d that he was not absent from work on November 18, 2002, 634, 635 (App. Div. 2004) (internal quotation marks omitted) arguing instead that the time he took off for jury service was (ellipses in original).7 However, “not all additional duties not docked from his paycheck until the following pay period constitute out-of-title work, and the mere fact that there may on November 18, 2002. Plaintiff claims that the November be some overlap between two particular positions does not 25, 2002, warning notice was actually for the time Plaintiff mandate a finding that a petitioner is being compelled to missed on November 8, 2002. (Pl.'s Decl. ¶ 14.) perform out-of-title work.” Woodward v. Governor's Office of Employee Relations, 718 N.Y.S.2d 465, 467 (App. Div. 2001). Thus, with regard to whether Plaintiff was docked pay for jury duty, the Court has before it conflicting evidence, giving rise *10 Plaintiff claims that his working out-of-title eventually to a factual question suited for a jury. Therefore, construing led to a back injury when, on May 2, 2003, he was ordered the evidence in the non-movant's favor, the Court assumes to move several concrete bumpers. (Compl. 3-4; Pl.'s Decl. for purposes of this Motion that Plaintiff was docked pay for ¶ 17.) This injury resulted in a partial permanent disability attending jury duty. and loss of Plaintiff's earning potential, which, according to Plaintiff, constituted an adverse employment action. (Pl.'s Assuming therefore that Plaintiff's pay was docked for his Mem. 9-11; Compl. 7.) jury duty service, the next question is whether such a docking of pay qualifies as an adverse employment action; in other Defendant disputes Plaintiff's claim that he was working out- words, whether it constitutes a “materially adverse change in of-title or that he was performing the work of a higher salary the terms and conditions of employment.” See Galabya, 202 grade employee. (Def.'s Mem. 13.) Defendant cites Healy v. F.3d at 640 (internal quotation marks omitted). For purposes County of Nassau, 796 N.Y.S.2d 377, 379 (App. Div. 2005), of this Motion, the Court is willing to assume that it does. See for the proposition that “work is not considered ‘out-of-title’ Cunningham v. Consol. Edison Inc., No. 03-CV-3522, 2006 where it is related to, similar in nature to, or a reasonable WL 842914, at *17 (E.D.N.Y. Mar. 28, 2006) (“[D]ocking outgrowth of, the ‘in-title’ work.” According to Defendant, of an employee's pay is an adverse employment action.”); the job assignments that Plaintiff was asked to complete either see also Hicks v. Baines, 99-CV-315, 2006 WL 1994808, at fell under his title of Housekeeper or were “reasonably related * (W.D.N.Y. July 14, 2006) (“The only specific allegations to” the Housekeeper job description (Def.'s Mem. 14.), and, that arguably evince an adverse employment action are the in either case, were based on the needs of the Department (id. docking of two hours of [one plaintiff's] pay ... and the 19). docking of 15 minutes of [the other plaintiff's] pay....”). Therefore, Plaintiff satisfies the third prong of his prima facie The Court finds a genuine issue of material fact as to case with respect to the jury duty issue. whether the assignments given to Plaintiff – particularly the May 2, 2003 assignment – were out-of-title, in-title, or Plaintiff argues that he also suffered an adverse employment reasonably related to in-title work. In order for Plaintiff to action when he was forced to work outside of his Housekeeper establish that allegedly out-of-title assignments, particularly title – often performing the duties meant for employees with the assignment to move concrete bumpers, constituted an higher pay grades – beginning in 1995.6 (Pl.'s Mem. 12.) adverse employment action, Plaintiff must demonstrate that New York State Civil Service Law § 61(2) prohibits out-of- such assignments resulted in a “ ‘materially adverse change’ title work by declaring that “[n]o person shall be appointed, in the terms and conditions of [his] employment.” Galabya, promoted or employed under any title not appropriate to the 202 F.3d at 640. If what Plaintiff claims is true – that he was duties to be performed and, except upon assignment by proper assigned duties outside of his Housekeeper title that somehow – then Plaintiff will have satisfied his minimal burden of adverse employment actions, Plaintiff failed to establish that demonstrating that he suffered an adverse employment action, such actions took place under circumstances giving rise to at least with regard to out-of-title work performed within the an inference of discriminatory intent. (Def.'s Mem. 16-18.) 300-day-period preceding the filing of Plaintiff's NYSDHR Plaintiff relies on the alleged disparate treatment between complaint. See Santiago, 485 F. Supp. 2d at 335-36 (referring him and his Caucasian co-workers (in particular, Aubry, to employer's refusal to compensate employee's performance Emery and Ponce) to support his claim that he suffered of out-of-title duties as discrete act). Defendant has failed adverse employment actions under circumstances giving rise to adequately demonstrate that there exists no genuine issue to an inference of discriminatory intent. (Pl.'s Mem. 12-13.) of material fact with regard to whether Plaintiff's pay was More specifically, Plaintiff claims that he was constantly concomitant with the duties he was assigned. Therefore, for disciplined and forced to do undesirable out-of-title work, purposes of this Motion, the Court assumes that Plaintiff while his Caucasian co-workers were not. According to suffered an adverse employment action by being assigned out- Plaintiff, this disparate treatment demonstrates that the of-title work usually performed by employees with a higher adverse employment actions he suffered were motivated by pay grade. racial discrimination. In 1993, Emery, Ponce and Plaintiff had their positions reclassified to that of Housekeeper – the position Plaintiff ii. Inference of Discriminatory Intent still held when his employment with Defendant ended. After To establish his prima facie case, and thereby shift the filing a grievance, Emery and Ponce had their positions burden of production to Defendant, Plaintiff must establish reclassified to Maintenance Mechanic, which, according to an inference of discrimination. Though not required, this is Plaintiff, left them “open to higher salaries and promotion most commonly done by demonstrating that other similarly opportunities.” (Pl.'s Decl. ¶¶ 7-8.) Plaintiff claims that he situated persons, not of Plaintiff's protected class, were treated was not allowed to grieve his reassignment. (Id. ¶ 8.) Plaintiff more favorably than he was in the workplace. See Abdu- makes this argument with no proof whatsoever. Brisson, 239 F.3d at 467-68. Indeed, Plaintiff has chosen this approach to make his case. To be similarly situated, As previously noted, after oral argument, Plaintiff submitted these persons must have been subject to the same standards to the Court an application to supplement the record with governing performance evaluation and discipline and must what appears to be the minutes from a meeting that took place have engaged in conduct similar to Plaintiff's. See Norville in November 1999. According to Plaintiff, this document v. Staten Island Univ. Hosp., 196 F.3d 89, 96 (2d Cir. demonstrates that “Defendant treated Plaintiff differently 1999); see also McGuinness v. Lincoln Hall, 263 F.3d 49, from the white County employees (Mr. Em[e]ry and Mr. 54 (2d Cir. 2001) (“[W]here a plaintiff seeks to establish Ponce), thereby showing that Defendant ... was fully aware the minimal prima facie case by making reference to the that Plaintiff's title was supposed to have been changed disparate treatment of other employees, those employees and was not.” (Letter from Pamela D. Hayes, Esq., to the must have a situation sufficiently similar to plaintiff's to Court, dated Mar. 17, 2008.) Despite Plaintiff's urging, this support at least a minimal inference that the difference of document cannot be used to create an issue of fact because treatment may be attributable to discrimination.”). Evidence the meeting minutes are inadmissible hearsay. See Patterson of disparate treatment, however, cannot be based on v. County of Oneida, 375 F.3d 206, 219 (2d Cir. 2004); conclusory allegations. See Finney v. Planned Parenthood Witkowich v. Gonzales, 05-CV-7756, 2008 WL 701280, at of N.Y. City, Inc., No. 02-CV-7942, 2003 WL 22928730, at *10 n.11 (S.D.N.Y. Feb. 25, 2008) (“[I]nadmissible hearsay ... *4 (S.D.N.Y. Dec. 10, 2003) (granting summary judgment [cannot] be used to defeat summary judgment.”). Further, as where only evidence of disparate treatment was plaintiff's discussed above, Plaintiff has failed to demonstrate to the own conclusory allegations); Griffin v. Ambika Corp., 103 Court that excusable neglect was to blame for this document F. Supp. 2d 297, 308 (S.D.N.Y. 2000) (“Statements that not being added to the record earlier. Cf. Scully, 148 F. are devoid of any specifics, but replete with conclusions, Supp. 2d at 251-52 (plaintiff was permitted to supplement the are insufficient to defeat a properly supported motion for summary judgment record because the new evidence was not summary judgment.” (internal quotation marks omitted) ). previously available, plaintiff exercised good faith, and only minimal delays would result). Moreover, even if admissible, Defendant's argument that Plaintiff was always free to grieve Stmt ¶¶ 9-12, 23, 25, 29-33, 36-37.) Moreover, Defendant his assignment, but never did. Plaintiff claims he was unaware submitted unrefuted evidence demonstrating that Aubry was of this option, a claim contradicted by the minutes themselves, in fact disciplined for time abuse, at least during 2003 and but Plaintiff still fails to tender any evidence that Defendant 2004. (Kahan Aff., Exs. LL-NN.) In fact, the evidence shows engaged in any conduct blocking Plaintiff's efforts to grieve that, because of his excessive absenteeism, Aubry was denied his assigned title. salary increments on August 13, 2003, November 10, 2003, and February 19, 2004, and that he was denied an unpaid Without this inadmissible and tardy information, Plaintiff has leave of absence on February 2, 2004. (Id., Ex. MM.) Further, no admissible evidence showing that Defendant prohibited an Amended Notice of Charges dated April 15, 2004, was him from grieving his reassignment, that Defendant had an issued to Aubry, detailing 169 charges and specifications affirmative obligation to notify Plaintiff of his right to grieve brought against him by Defendant for time abuse spanning his reassignment or to help him do it, or that Defendant helped from January 16, 2003, through April 5, 2004. (Id., Ex. LL.) Emery and Ponce to grieve their status. Moreover, this alleged Aubry resigned before the charges could be resolved. (Id.) act of discrimination was a discrete act occurring several years According to Plaintiff, this evidence does nothing to disprove before Plaintiff initiated legal action. Therefore, the Court will his claim of disparate treatment since “nothing was done to not entertain Plaintiff's argument that discriminatory intent Mr. Aubry while Plaintiff was on the job.” (Pl.'s Mem. 13.) can be inferred from Emery and Ponce being reclassified to the Maintenance Mechanic position after filing grievances. Although the Court agrees with Plaintiff that the record contains evidence of discipline of Aubry (who was employed Plaintiff also focuses on what he sees as the disparate by Defendant for far less time than Plaintiff) that largely treatment between him and Aubry. Plaintiff claims that he post-dates Plaintiff's employment and, therefore, it does little was docked for attending jury duty, but that when Aubry to disprove Plaintiff's claim of disparate treatment, it is not had to appear in court on several occasions, he was given Defendant's burden to disprove an unsupported claim of time off and never had his pay docked. (Compl. 4-5; Pl.'s disparate treatment. Plaintiff has the ultimate burden under Dep. 117 (“Jason used to go to jail for long periods of the McDonnell Douglas framework, St. Mary's Honor Ctr., time and come back and have his job and nothing said or 509 U.S. at 507, and he cannot satisfy his burden by making nothing done.”).)8 Also, Plaintiff alleges that Aubry was bare and conclusory assertions that he and Aubry were permitted to drive County vehicles without a license – even similarly situated but that they were treated differently.9 A though one was required for his position – but that Plaintiff conclusory allegation without support in the record will not was disciplined for failing to produce a driver's license – give rise to an inference of discriminatory intent nor will it even though his position did not require that he have such defeat a motion for summary judgment. a license. (Compl. 5; Pl.'s Mem. 13; Kahan Aff., Ex. AA.) Indeed, according to Plaintiff, he was disciplined for not Aubry, who was a Maintenance Laborer, was required to having a license, while Defendant actually helped Aubry have a driver's license. Based on the Housekeeper job obtain his license. (Pl.'s Mem. 13.) Further, Plaintiff claims specifications, it appears that Plaintiff was not.10 (Kahan that he was constantly disciplined for minor infractions, while Aff., Ex. I.) On December 30, 2002, however, Plaintiff was Aubry committed much more serious infractions and was not issued a warning notice by Bates for failure to produce a similarly disciplined or docked pay. (Id. 13; Compl. 4-5; Pl.'s license. (Id., Ex. AA (“Mr. Perry could be asked to drive Decl. ¶ 19; Kahan Aff., Ex. GG (“In contrast to Mr. Aubry, I at any time and should have his license with him.”).) The have been written up for numerous incidents, none of which record shows that on June 17, 2002, Aubry was notified are as grave as the incidents involving Mr. Aubry.”).) by Commissioner Stanley G. Motley that his probationary appointment would be terminated if he failed to produce a *12 Plaintiff offers no evidence to support his argument driver's license by July 22, 2002. (Pl.'s Exs. in Opp'n Pursuant that Aubry went undisciplined while committing infractions to Local Rule 56.1(a) 21 (“Pl.'s Ex.”).) In response to this similar to or worse than those committed by Plaintiff. notification, Aubry wrote a letter to Motley on July 8, 2002, Plaintiff was disciplined many times during the course of indicating that he was in the process of getting his license his employment with Defendant, mostly for infractions such back, but that he may not have it back from the Department of as time abuse and insubordination, and he offers no proof County] will try to expedite the return of your driver's license Defendant has submitted an affidavit from Bates, in which through the Department of Motor Vehicles. I[n] the event we he stated that “[t]he decisions regarding jobs to be performed can not please be assured that you will still be an employee depended upon the needs of the department and who is in good standing since you have met the legal requirements available.... Perry's job assignments were no more difficult, and are just awaiting the return of your paperwork from the demanding or dangerous than assignments given to other ... State of New York.” (Id.) employees. That Perry did not like some of [ ]his job assignments is true, but Perry was not singled out for *13 Again, Plaintiff has not pointed to any evidence in the particular jobs.” (Bates Aff. ¶¶ 3-4.) Plaintiff testified that record from which the Court could conclude that Plaintiff during a meeting while Plaintiff was at Bronx River Parkway, and Aubry were similarly situated with regard to the driver's Bates said that “any shit detail that was going to be done, license issue. The record demonstrates that Aubry was [Plaintiff] would be doing it.” (Pl.'s Dep. 45.) Plaintiff also threatened with termination (by someone other than Bates) if testified that, while at Bronx River Parkway, he worked as he did not produce a driver's license by a certain date. The part of a crew – albeit “not the popular crew.” (Id. 44.) record also suggests that Defendant did not offer to “help” Aubry until it was satisfied that Aubry had done all that he Plaintiff cannot defeat Defendant's Summary Judgment could to obtain his driver's license and that he was waiting Motion with these statements. By themselves, these alleged on paperwork from the DMV. Plaintiff offers no evidence comments show only that Bates might have disliked Plaintiff suggesting that, at the time he was issued a warning notice, (and others in the group), not that he discriminated against he, like Aubry, had done all that could to obtain his license him. Thus, it is even more apparent that Plaintiff has failed but was waiting on documentation from the DMV. Further, to demonstrate that any of the work he was assigned – Plaintiff and Aubry did not hold the same positions. Though it including the assignment that allegedly led to his back is not entirely clear from the record why Plaintiff was issued a injury on May 2, 2003 – was assigned to him because of warning notice for failure to produce a driver's license, there his race. In a conclusory fashion, Plaintiff claims that he is nothing in the record suggesting that the reason was racial was made to perform dangerous and demanding out-of-title discrimination. And, Plaintiff's bare belief that Defendant was work, while Caucasian co-workers were not. (Pl.'s Mem. “messing” with him is not evidence of anything. See Powell 9.) Plaintiff has not made any specific allegations asserting, v. Consol. Edison Co., 97-CV-2439, 2001 WL 262583, at *12 nor has he provided any admissible evidence suggesting, (S.D.N.Y. Mar. 13, 2001) (“[P]laintiff's subjective belief that a that Plaintiff was given assignments more dangerous or supervisor had an improper motive is not evidence at all....”). demanding than similarly-situated Caucasian co-workers.12 From this feeble evidence, no reasonable jury could find that See Meiri, 759 F.2d at 998 (“To allow a party to defeat a Plaintiff and Aubry were similarly situated but were treated motion for summary judgment by offering purely conclusory disparately under circumstances giving rise to an inference of allegations of discrimination, absent any concrete particulars, discriminatory intent. would necessitate a trial in all Title VII cases.”); Jones, 2008 WL 495498, at *11 (finding plaintiff failed to establish Plaintiff argues that he was forced to work out-of-title, while prima facie case of discrimination because plaintiff offered his similarly-situated Caucasian co-workers were not. Some no specific information or evidence to substantiate his of his complained of out-of-title duties included digging conclusory allegation that “white [co-workers] with less ditches, performing firefighter duties, and moving concrete seniority and experience were provided summer employment parking lot bumpers, none of which expressly appear on the while he was not”); Marro v. Nicholson, No. 06-CV-6644, illustrative list of possible Housekeeper duties. (Compl. 3-4; 2008 WL 699506, at *10 (E.D.N.Y. Mar. 12, 2008) (holding Kahan Aff., Ex. I.)11 Even if the Court accepts Plaintiff's vague and conclusory statements that similarly situated argument that he was given assignments outside of his employees were treated differently failed to give rise to issue Housekeeper title, Plaintiff has offered no evidence from of material fact regarding disparate treatment); Randolph v. which the Court could infer that such assignments were CIBC World Markets, No. 01-CV-11589, 2005 WL 704804, given on account of Plaintiff's race as opposed to any other at *13 (S.D.N.Y. Mar. 29, 2005) (“Although [plaintiff] has reason (such as department need or even personal dislike of made the general allegation that he was treated more harshly Plaintiff). It is noteworthy that in regard to this claim, Plaintiff than white ... employees who committed similar violations ..., has submitted no evidence of disparate treatment. there is no other evidence in the record to support this to survive a motion for summary judgment.”). or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.” Harris *14 As set forth above, Plaintiff has failed to establish a v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993), abrogated prima facie case of racial discrimination based on disparate on other grounds by, Burlington Indust., Inc. v. Ellerth, treatment because he has not offered admissible evidence 524 U.S. 742 (1998). Thus, to satisfy the first prong, a suggesting that he suffered adverse employment actions plaintiff “ ‘must demonstrate either that a single incident under circumstances giving rise to an inference of racial was extraordinarily severe, or that a series of incidents discrimination. were ‘sufficiently continuous and concerted’ to have altered the conditions of [his] working environment.’ ” Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002) (quoting Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000) ). Though 2. Hostile Work Environment Claim a single incident may be severe enough to materially alter Plaintiff also brings a hostile work environment claim. “The employment conditions, see Patterson, 375 F.3d at 227, in question of whether a work environment is sufficiently hostile general the actions taken by the defendant “must be more than to violate Title VII is one of fact. On a motion for summary ‘episodic; they must be sufficiently continuous and concerted judgment, the question for the court is whether a reasonable in order to be deemed pervasive.’ ” Alfano, 294 F.3d at 375 factfinder could conclude, considering all the circumstances, (quoting Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d that the harassment is of such quality or quantity that a Cir. 1997) ); see also Carrero v. N.Y. City Hous. Auth., 890 reasonable employee would find the conditions of [his] F.2d 569, 577 (2d Cir. 1989) (holding “incidents must be more employment altered for the worse.” Schiano, 445 F.3d at 600 than episodic”). “Where reasonable jurors could disagree as to (internal quotation marks and citations omitted). whether alleged incidents of racial insensitivity or harassment would have adversely altered the working conditions of a reasonable employee, the issue of whether a hostile work In order to prevail on a hostile work environment existed may not properly be decided as a matter environment claim, a plaintiff must of law.” Patterson, 375 F.3d at 227. first show that the harassment was sufficiently severe or pervasive to *15 The existence of a hostile environment alone is alter the conditions of the victim's insufficient to make out a Title VII claim, however. employment and create an abusive Plaintiff must also show there is some reason to impute working environment. Second, the the discriminatory conduct of the employees that created plaintiff must demonstrate a specific the hostile work environment to the employer. See Perry, basis for imputing the conduct creating 115 F.3d at 149. Employers are not generally liable for the the hostile work environment to the harassing behavior of a plaintiff's co-workers; to make an employer. employer liable for a hostile work environment claim, the harassment must generally come from a supervisor with authority over a plaintiff. See Mack v. Otis Elevator Co., 326 F.3d 116, 123 (2d Cir. 2003) (“[I]t is only when a Feingold, 366 F.3d at 149-50 (internal citations and quotation supervisor with immediate (or successively higher) authority marks omitted). over the employee has engaged in the complained of conduct, that the employer may be subject to vicarious liability. The first prong involves an objective and a subjective Employers are not, by contrast, vicariously liable for hostile component: “the misconduct shown must be severe or work environment created by a mere co-worker of the pervasive enough to create an objectively hostile or abusive victim.” (internal citations and quotation marks omitted) ). work environment, and the victim must also subjectively perceive that environment to be abusive.” Id. (internal Finally, Plaintiff must prove that the hostile conduct occurred quotation marks omitted). In determining whether a work because of his membership in a protected class. To make environment is “hostile” or “abusive,” courts are to look at such a showing, a plaintiff must introduce evidence of hostile the totality of the circumstances, as guided by the following conduct that a reasonable juror could find was a result of the Metro. Opera Ass'n, 192 F.3d 310, 318 (2d Cir. 1999). a long period of time tends to weigh against a finding that Plaintiff's work environment was altered for the worse. See Plaintiff argues that the accumulation of the following Williams, 2007 WL 2907426, at *11 (“The incidents that incidents – which occurred from 1995 through May 2003 – plaintiff points to were isolated in nature and took place over a demonstrate that he was treated differently than his Caucasian number of years.... Taken together, the incidents described are co-workers and constitute a hostile work environment:13 (1) separated in time and space and do not demonstrate a change After filing a grievance, Emery and Ponce were reclassified in work environment.”). from the Housekeeper title to the Maintenance Mechanic title, and Plaintiff was not (Pl.'s Mem. 15); (2) Plaintiff was told he Nonetheless, keeping in mind that it is not for the Court would be fired if he did not do what he was told, regardless to act as a “ ‘hierophant of social graces,’ ” see Schiano, of whether the assignment was in- or out-of-title (id.; Compl. 445 F.3d at 605 (quoting Holtz v. Rockefeller Co., 258 F.3d 5; Pl.’s Dep. 112); (3) Plaintiff was the only person docked 62, 75 (2d Cir. 2001) ), the Court is unwilling to say that pay for going to jury duty (Pl.'s Mem. 15); (4) Plaintiff was no reasonable jury could find that the incidents listed above written up for excessive absenteeism on May 8 and 9, 2003, were severe enough in the aggregate to alter the conditions of even though his supervisor knew that he was out because Plaintiff's employment, though the Court has serious doubts. of the May 2, 2003 injury (id.); (5) Plaintiff had to drive Indeed, the Second Circuit has cautioned that “hostile work Aubry around, even though Aubry was required to have a environment claims present ‘mixed question[s] of law and license (id.; Pl.'s Dep. 113); (6) Plaintiff was not allowed to fact’ that are ‘especially well-suited for jury determination.’ wear safety equipment like his Caucasian co-workers (Pl.'s ” Id. (quoting Richardson v. N.Y. State Dep't of Corr. Serv., Mem. 15); (7) Plaintiff was subjected to “Kunta Kinte” jokes 180 F.3d 426, 437 (2d Cir. 1999) ) (alteration in original). (id. 15-16);14 and (8) Plaintiff was disciplined for minor Only when “application of the law to th[e] undisputed facts will reasonably support only one ultimate conclusion” is infractions while his Caucasian co-workers were not (Compl. summary judgment appropriate. Richardson, 180 F.3d at 438. 3). Plaintiff acknowledges that he was not generally subjected Because reasonable minds may differ on the issue of whether to racial epithets or insults, but insists that, because he was the conduct complained of altered Plaintiff's employment for the only African-American person in his group, no outright the worse, the Court will not grant summary judgment to insults were necessary. (Pl.'s Mem. 16.) Defendant on the objective element of Plaintiff's hostile work environment case. *16 Plaintiff does not suggest, and the Court does not find, that any one of these alleged incidents was severe enough With regard to whether Plaintiff subjectively believed that by itself to alter the conditions of Plaintiff's employment and his work environment with Defendant was hostile, Plaintiff thereby constitute hostile work environment.15 Therefore, has pled that he was caused to “undergo an intimidat[ing], the Court considers these incidents in the aggregate to hostile and offensive work environment causing [him] determine whether, under the totality of the circumstances, monetary damages and emotional injuries and numerous Plaintiff was subjected to a hostile work environment during other injuries.” (Compl. 8.) At this stage, Defendant does not his employment with Defendant. For present purposes, with challenge Plaintiff's claim that he found the work environment regard to timeliness, the Court will assume – without deciding subjectively hostile, so the Court will assume, for purposes of – that these acts are all properly before the Court as part of this Motion, that this element is satisfied. Plaintiff's hostile work environment claim, unless otherwise noted. Plaintiff must show a basis upon which to impute the discriminatory conduct of the employees that created the The first issue for the Court is whether Plaintiff was subjected hostile work environment to the employer. See Perry, 115 to an objectively hostile environment during his employment F.3d at 149. Because most of the complained-of conduct was with Defendant. Feingold, 366 F.3d at 150. In making this alleged to have been committed by Bates, Plaintiff's direct determination, the Harris factors guide the Court's “totality of supervisor, Defendant can be held vicariously liable for any the circumstances” analysis. See Harris, 510 U.S. at 23. The resulting hostile work environment. See Mack, 326 F.3d at conduct complained of spans a period of approximately eight 123. years, which is a considerable amount of time considering conduct occurred because of his membership in a protected quotation marks omitted) ). On the record before the Court, class. See Brennan, 192 F.3d at 318. “Although the incidents no reasonable jury could find that Plaintiff was subjected to a comprising a hostile work environment claim need not make hostile work environment on account of his membership in a reference to any trait or condition on the basis of which protected class. Therefore, Defendant's Motion for Summary the discrimination has occurred ... they must occur under Judgment dismissing Plaintiff's hostile work environment circumstances in which ... the incidents can reasonably be claim is granted. interpreted as having taken place on the basis of that trait or condition.” Williams, 2007 WL 2907426, at *10 (internal quotation marks omitted) (ellipses in original). Plaintiff points 3. Section 1981 Claim to no admissible evidence in the record suggesting that his race played a role in the way he was treated during his The McDonnell Douglas burden-shifting framework also employment with Defendant. Instead, Plaintiff relies on his applies to 42 U.S.C. § 1981 claims. See Evans-Gadsden v. own conclusory statements that: (1) race must have been Bernstein Litowitz Berger & Grossman, LLP, 491 F. Supp. 2d a motivating factor because Plaintiff was the only African 386, 402 (S.D.N.Y. 2007). “To establish the requisite prima American employee in the group (Pl.'s Mem. 16); and (2) facie case for a violation of [Section 1981], a plaintiff must he was treated differently from his Caucasian co-workers establish: (1) that [he] is a member of a racial minority; (2) that (Compl. 1-2, 3-5, 7; Pl.'s Mem. 15). The problem, however, the Defendant intended to discriminate against Plaintiff on the is that Plaintiff's membership in a protected class in and of basis of [his] race; and (3) that the Defendant discriminated itself does not establish discriminatory intent. See Ghent v. in connection with one of the statute's enumerated activities.” Moore, 519 F. Supp. 2d 328, 338 (W.D.N.Y. 2007) (“Without Id. (citing Brown v. City of Oneonta, 221 F.3d 329, 339 (2d other evidence of discrimination, [the fact that plaintiff was Cir. 1999) ). the only African-American employee] alone is not probative of unlawful discrimination.”); Bennett v. Watson Wyatt & An individual may be held liable under Section 1981 where Co., 136 F. Supp. 2d 236, 252 (S.D.N.Y. 2006) (“It is the plaintiff demonstrates “some affirmative link to causally not enough simply to be a member of a protected class. connect the [defendant] with the discriminatory action.” To invoke the protections of Title VII, an employee must Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 75 have actually suffered discrimination.”). Further, as discussed (2d Cir. 2000) (internal quotation marks omitted). Although above, Plaintiff has offered no evidence demonstrating the elements of a Section 1981 claim and a Title VII claim that these Caucasian co-workers were similarly-situated to are distinct, discriminatory intent is a necessary element and actually treated differently than Plaintiff. See Hill v. of a Section 1981 claim. See Patterson, 375 F.3d at 226 Rayboy-Brauestein, 467 F. Supp. 2d 336, 360 (S.D.N.Y. (“[A] plaintiff pursuing a claimed violation of § 1981 ... 2006) (“When a person only makes general allegations that must show that the discrimination was intentional.”). Thus, African-Americans are treated differently in the workplace, a failure to establish sufficient evidence of discriminatory those allegations are insufficient to support a hostile work intent to survive summary judgment on a Title VII claim environment claim.”); see also Marro, 2008 WL 699506, at is fatal to a similar claim of racial discrimination under *10; Randolph, 2005 WL 704804, at *13. Section 1981. See Gonzalez v. City of New York, 354 F. Supp. 2d 327, 330 n.2 (S.D.N.Y. 2005) (“Although claims The Second Circuit has said that “[i]n a hostile work under 42 U.S.C. § 1981 ... involve different elements than environment case, it may well be a proper exercise of the those involved in Title VII claims, they share in common district court's broad discretion to allow the plaintiff to build with Title VII claims the essential element of intentional [his] case partly by adducing incidents for which the link to unlawful discrimination. Therefore, the Court's determination any discriminatory motive may, in the first instance, appear that certain of Plaintiffs' Title VII claims do not survive tenuous or nonexistent.” Schiano, 445 F.3d at 605. However, summary judgment due to the inadequacy of evidence the Second Circuit has stood firm on its position that district regarding discriminatory intent also results in dismissal of courts are not to “treat discrimination differently from other Plaintiffs' § 1981 ... claims.” (internal quotation marks and ultimate questions of fact.” Abdu-Brisson, 239 F.3d at 466; citations omitted) ); Patterson, 375 F.3d at 225 (holding accord Schiano, 445, F.3d at 603 (“[S]ummary judgment that reasons supporting summary judgment for defendants on remains available for the dismissal of discrimination claims Title VII claims also merited dismissal of plaintiff's Section has failed to show intentionally discriminatory conduct on respectfully directed to terminate all pending motions (Dkt. the part of Defendant, and therefore, summary judgment on Nos. 23, 45), to enter judgment for Defendant, and to close Plaintiff's Section 1981 claim is granted. this case. SO ORDERED. III. Conclusion All Citations *18 For the reasons stated herein, Plaintiff's application to supplement the record is DENIED, and Defendant's Motion Not Reported in Fed. Supp., 2008 WL 11438085 Footnotes 1 Defendant's Employee Handbook provides the following: If you are required to serve as a juror or to appear in court pursuant to a subpoena or court order, you will be granted a leave with pay for such required attendance. Any fees received for such attendance, other than travel and meals, must be paid to the County. This leave with pay does not apply when your own personal interests are the subject of the court activity. (Kahan Aff., Ex. Z.) 2 The Court will cite to Plaintiff's Complaint by page number rather than paragraph number in an attempt to alleviate the confusion resulting from Plaintiff's reuse of paragraph numbers within the document. 3 “[I]n a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice ..., such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred....” 42 U.S.C. § 2000e-5(e)(1). 4 Plaintiff offered these tardy additions to the record, after he failed to provide the record evidence he claimed would prove that a supervisor had referred to Plaintiff as “Kunta Kinte.” Obviously, the Court found Plaintiff's assertion of this claim in response to Defendant's Summary Judgment Motion, which was not backed up by any evidence in the record (despite representations to the contrary), to be potentially material, if not dispositive, in resolving the Motion. Accordingly, the Court asked counsel for Plaintiff to show where in the record there was support for this assertion. Plaintiff never did provide any evidence in the record as it existed when he responded (several months late) to Defendant's Motion. Instead, Plaintiff sought to augment the record with the March 13 submissions. 5 Defendant reads Plaintiff's submissions to assert that the various warning notices Plaintiff was issued for time abuse and failure to produce a driver's license were adverse employment actions in support of this claim. The Court disagrees with this reading. Instead, it is evident to the Court, based on its reading of Plaintiff's various submissions, that Plaintiff relies on these warning notices not as adverse employment actions, but as evidence of discriminatory intent and in support of his hostile work environment claim. 6 Plaintiff offers no specific allegations – let alone evidence – to support this claim. First of all, Plaintiff never identifies which title would be the appropriate recipient of such duties, nor does he identify the salary grade appropriate to these duties. Despite these significant infirmities in Plaintiff's claim and because the outcome assignments would normally be given to an employee with a higher salary-grade title. 7 Interestingly, Plaintiff does not here claim a failure to compensate for higher grade work he allegedly was assigned, but claims that the out-of-grade work he was assigned both was highly undesirable (which one would imagine would be lower-grade work) and led to his injuries in May 2003. 8 In his Complaint, Plaintiff also states “the other white employees were given time off without being docked when they had to perform citizenship duties.” (Compl. 7.) Without any specific allegations or evidence to support this statement, it cannot be relied upon to establish the fourth prong of Plaintiff's prima facie case. See Jones v. W. Suffolk Boces, No. 03-CV-3252, 2008 WL 495498, at *11 (E.D.N.Y. Feb. 20, 2008) (finding as insufficient to satisfy fourth prong of prima facie case plaintiff's conclusory allegation that “white [employees] with less seniority and experience were provided summer employment while [plaintiff] was not”). 9 On December 14, 2006, Magistrate Judge George A. Yanthis ordered that Defendant turn over to Plaintiff in discovery Aubry's leave history from 2001 through 2004. (Dkt. No. 15.) Exhibit 34 to Plaintiff's Local Civ. R. 56.1 Statement indicates that these records were in fact provided to Plaintiff. Interestingly, however, Plaintiff decided not to include Aubry's leave history in the present record. Based solely on the record before it, the Court has no way of knowing whether Aubry was excessively absent while Plaintiff was employed by Defendant or, more importantly, whether his pay was ever docked as a result. The Court cannot assume either of these things to be the case based solely on Plaintiff's bare assertions. 10 The Court notes, however, that there is evidence in the record to suggest that, in May 2002, Plaintiff was told that some work assignments would require him to drive. (Kahan Aff., Ex. V.) During his deposition, Plaintiff testified to his belief that his supervisors would make him drive because “they w[ere] just messing with [him].” (Pl.'s Dep. 60.) 11 Plaintiff elaborated more fully on this issue in his complaint before the NYSDHR: Since Mr. Bates became my supervisor, I have been assigned tasks that no one else wants to do. These tasks are the most physically demanding and dangerous assignments. For example, I have been assigned to dig holes without a back hoe or assistance, and I have been required to move concrete parking lot bumpers despite the fact that I have a documented back injury. I have been sent to do weed-whacking jobs without chaps, safety glasses and ear protection. The aforementioned examples are not an exhaustive list of undesirable duties I have been assigned since 1999. It should be noted that when co-workers are assigned to work with me, they view the assignments as a form of punishment. I am being punished everyday especially since almost all the work I perform is out of my job title. (Kahan Aff., Ex. GG.) Again, it is entirely unclear from Plaintiff's allegations and submissions the title for which Plaintiff believes these duties are appropriate. 12 One of the alleged out-of-title assignments that Plaintiff complains of was when he was allegedly asked to perform “firefighter duties.” (Compl. ¶ 1.) However, in an undated letter written by Donald Kranker, a Maintenance Laborer and Shop Steward, he complains of an August 23, 2002 firefighting assignment that was given to him, Plaintiff, Jason Aubry and one other employee. (See Pl.'s Ex. 29.) Thus, at least with respect to the firefighting assignment, the record not only fails to show that Plaintiff was singled out for the assignment, but actually demonstrates that Caucasian co-workers were given the same assignment; in fact, Jason Aubry – who happens to be the employee Plaintiff focuses on to demonstrate disparate treatment – was one of the employees sent to perform firefighting duties with Plaintiff. Therefore, there is no basis whatsoever for Plaintiff to claim that he was assigned firefighter duties based on his race. 14 In his opposition brief, Plaintiff asserted – as evidence that he was subjected to a hostile work environment – that he endured comments about “Kunta Kinte.” (Pl.'s Mem. 15-16.) In support of this allegation, Plaintiff offered the Court an unhelpful and erroneous citation – without page number – to Plaintiff's Exhibit 3, which is an approximately 50-page excerpt from Plaintiff's deposition testimony. Yet, there was no reference to this comment in Plaintiff's deposition. In fact, nothing Plaintiff provided in opposition to the Summary Judgment Motion contained any evidence that Plaintiff was subjected to such comments. During oral argument, the Court asked Plaintiff's counsel what in the record supported the allegation that Plaintiff was subjected to “Kunta Kinte” comments. Plaintiff's counsel represented to the Court that Plaintiff testified during his deposition that he was referred to as “Kunta Kinte” by his supervisor. Defendant's counsel indicated that he had a recollection of such testimony. Plaintiff's counsel further represented that she would send the relevant pages from Plaintiff's deposition transcript to the Court the following day, which she failed to do. Instead, on March 12, 2008, Defendant's counsel sent to the Court Plaintiff's entire deposition transcript and a letter, in which he represented: “I have found no reference to the ‘Kunta Kinte’ comment referenced by plaintiff's counsel. I was in error when I stated that such a comment was made by Mr. Perry at his deposition.” (Letter from Stuart E. Kahan, Esq., to the Court, dated Mar. 11, 2008.) On March 14, 2008, the Court received from Plaintiff's counsel via overnight mail: (1) a letter dated March 13, 2008, in which she admitted, “[t]here is no reference to [the “Kunta Kinte” comment] in the deposition transcript,” and (2) an application to supplement the record with a new affidavit from Plaintiff and what appears to be the minutes of a meeting held on November 9, 1999. (Letter from Pamela D. Hayes, Esq., to the Court, dated Mar. 13, 2008.) In his putative supplemental affidavit, Plaintiff states that he was referred to as “Kunta Kinte” by a supervisor identified only as “Mike,” without any details regarding when or where this allegedly occurred. This affidavit is suspicious. First, Plaintiff never made this allegation in either claim he made to the EEOC, nor included it in his Complaint. Second, it is plainly lacking in details – including the full identity of the speaker and the date. In any event, the Court will not accept this affidavit, as it is way out of time from a party that has already demonstrated, through his counsel, a profound disregard for deadlines and process in this case. Cf. Scully, 148 F. Supp. 2d at 251-52 (allowing plaintiff to oppose defendant's summary judgment with new evidence for limited purposes because plaintiff could not have submitted new evidence earlier and plaintiff demonstrated good faith). 15 Again, this excludes the alleged “Kunta Kinte” reference. End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2023 WL 3352758 Park in Utica, New York. (Dkt. No. 1 at 5.) Plaintiff alleges Only the Westlaw citation is currently available. that when she would go to Miller Park, Utica police officers United States District Court, N.D. New York. would also be present in the park and that the police officers’ presence in the park at the same time as Plaintiff put her in Sheila ROBINSON, Plaintiff, “fear of [her] safety and well being” such that she “stopped v. going to [the] park in fear of being shot by the [U]tica Mark WILLIAMS, et al., Defendants. police.” (Id.) 6:22-CV-0982 (GTS/ML) Plaintiff alleges that, at some point in time, she called the police regarding issues she was having with third-party, Biory Signed January 12, 2023 Chavez Tinco. (Id.) Plaintiff alleges that she sought to pursue charges against Mr. Tinco and to obtain a restraining order Attorneys and Law Firms that would protect her from Mr. Tinco, but that the Utica police officers refused to arrest Mr. Tinco or assist Plaintiff in SHEILA ROBINSON, Plaintiff, Pro Se, 939 Ontario Avenue, obtaining an order of protection. (Id. at 5-6.) Niagara Falls, New York 14301. Plaintiff alleges that, at some point in time, she went to get her mail and an unnamed maintenance person “came ORDER and REPORT-RECOMMENDATION out and provoked [P]laintiff into accidentally macing,”2 MIROSLAV LOVRIC, United States Magistrate Judge the maintenance person then called the police, Plaintiff was arrested, and paid a $300 fine. (Id. at 6.) *1 The Clerk has sent a pro se complaint in the above captioned action together with (1) an application to proceed Plaintiff alleges that a building located next to her residence in forma pauperis, and (2) an application to appoint counsel, is a nuisance because it is a gathering place for drug users filed by Sheila Robinson (“Plaintiff”) to the Court for review. and dealers. (Id. at 6.) Plaintiff alleges that she sought (Dkt. Nos. 1, 2, 5.) For the reasons discussed below, I (1) grant police assistance “multiple times” to address individuals from Plaintiff's in forma pauperis application, (2) deny Plaintiff's the property next door who trespassed on to her property. motion for appointment of counsel, and (3) recommend that (Id.) However, Plaintiff alleges that the Utica police refused Plaintiff's Complaint be dismissed in its entirety (a) in part to arrest individuals that criminally trespassed and did not with leave to amend, and (b) in part without leave to amend. conduct warrant checks on the trespassers. (Id. at 6-7.) (Dkt. Nos. 1, 2, 5.) *2 Plaintiff alleges that Defendant Derek Schultz filed a false statement that Plaintiff was suffering from mental I. BACKGROUND illness. (Id. at 7.) Plaintiff alleges that Defendant Marissa Construed as liberally1 as possible, Plaintiff's Complaint Vomer filed a false statement stating that Plaintiff was alleges that she formed clothing brands and has since been rambling. (Id.) Plaintiff alleges that Defendant Reginald targeted and harassed by defendants Mark Williams, Kyle Sanders retaliated against Plaintiff by refusing to arrest third- Piersall, John De Traglia, Joseph Aiello, Brian Baye, Marissa party T. Jones and stating to Plaintiff “you wanted Utica police Vomer, K. Phillips, Benny Grullon, Derek Schultz, Reginald fired[.] [W]hy should we help you[?]” (Id.) Sanders, Brian French, Hiram Rios, Louis L. Stanton, John Does, Letitia James, Chuck Schumer, Amazon.com, Plaintiff alleges that Defendant Louis Stanton was the Jeff Bezos, Facebook.com, Mark Zuckerberg, Google.com, assigned judge to another one of her civil cases and that Sergin Brin, Larry Page, Sundar Pichai, Zazzle.com, he conspired to violate Plaintiff's right to a jury trial. (Id. Robert Beaver, Cafepress.com, Bob Marino, Fred Durham, at 8.) More specifically, Plaintiff alleges that Defendant Redbubble.com, Barry Newstead, Martin Hopskin, Utica Stanton dismissed Plaintiff's civil case against “tech-giants” New York Police Department, and City of Utica in New York via electronic notice so that Plaintiff would not receive the State (collectively “Defendants”). (See generally Dkt. No. 1.) notice in time to appeal the decision. (Id.) Attorney General's office multiple times regarding the State Attorney General's Office for failure to investigate and harassment she experienced by “one or more of the tech- enforce the laws in violation of the Fourteenth Amendment giants” and the stalking that she experienced at Miller Park by and 42 U.S.C § 1983; (7) a claim against unnamed New York the Utica police officers but that the New York State Attorney State officials for interfering with Plaintiff's right to equal General's office informed her that it does not investigate those housing in violation of the Fourteenth Amendment and 42 matters and directed Plaintiff to obtain her own attorney. (Id. U.S.C. § 1983; (8) a claim against Defendant Schumer for at 9-10.) violating Plaintiff's right to equal protection under the law pursuant to the Fourteenth Amendment and 42 U.S.C. § 1983; Plaintiff alleges that unnamed “New York State Officials” (9) a claim against Yahoo.com and Defendants Amazon.com, deprived her of “Erap arrears” by incorrectly and Facebook.com, Google.com, Zazzle.com, Cafepress.com, “intentionally posting online that [P]laintiff had not uploaded Redbubble.com, Jeff Bezos, and Mark Zuckerberg for [the] required documents.” (Id. at 10-11.) conspiracy to deprive Plaintiff equal protection under the law pursuant to the Fourteenth Amendment and 42 U.S.C. § 1983; Plaintiff alleges that she contacted Defendant Chuck Schumer and (10) a claim against “the Tech-Giant gang” for stalking, to help her “stop and collect the unauthorized apparel cyberstalking, and harming Plaintiff. (See generally Dkt. No. from [A]mazon warehouses” after Plaintiff saw that her 1.) clothing line brand was being improperly sold by Defendant Amazon.com. (Id. at 11.) Plaintiff alleges that Defendant *3 As relief, Plaintiff seeks, inter alia, $100,000,000,000 in Schumer failed to assist her because his family members are compensatory damages, punitive damages in the amount of employed by Defendant Amazon.com. (Id.) $300,000,000,000, and costs and attorney's fees. (Id.) Plaintiff alleges that third-party Yahoo.com and Defendants Amazon.com, Facebook.com, Google.com, Zazzle.com, II. PLAINTIFF'S APPLICATION TO PROCEED IN Cafepress.com, Redbubble.com, Jeff Bezos, and Mark FORMA PAUPERIS Zuckerberg, conspired to target, cyberstalk, and stalk Plaintiff “When a civil action is commenced in a federal district court, to interfere with her civil right to make online profits. (Id. the statutory filing fee, currently set at $402, must ordinarily at 11.) Plaintiff also alleges that Defendants Amazon.com, be paid. 28 U.S.C. § 1914(a). A court is authorized, however, Facebook.com, Google.com, Zazzle.com, Cafepress.com, to permit a litigant to proceed in forma pauperis status if a Redbubble.com, Jeff Bezos, and Mark Zuckerberg racially party “is unable to pay” the standard fee for commencing an targeted her because she is a Black American and they are action. 28 U.S.C. § 1915(a)(1).3 After reviewing Plaintiff's in white or of Asian descent. (Id. at 12.) forma pauperis application (Dkt. No. 2), the Court finds that Plaintiff meets this standard. Therefore, Plaintiff's application Based on these factual allegations, Plaintiff appears to assert to proceed in forma pauperis is granted.4 the following ten claims: (1) a claim against Defendant Utica Police Department for its conduct at Miller Park in violation of the Fourth Amendment and 42 U.S.C. § 1983; III. LEGAL STANDARD FOR INITIAL REVIEW OF (2) a claim against Defendant Utica Police Department THE COMPLAINT for its refusal to arrest Mr. Tinco and obtain an order of Having found that Plaintiff meets the financial criteria for protection in favor of Plaintiff against Mr. Tinco in violation commencing this action in forma pauperis, the Court must of the Fourteenth Amendment and 42 U.S.C. § 1983; (3) consider the sufficiency of the allegations set forth in the a claim against Defendant Utica Police Department for its Complaint in light of 28 U.S.C. §§ 1915(e). Section 1915(e) refusal to arrest individuals who trespassed on Plaintiff's of Title 28 of the United States Code directs that, when a residence in violation of the Fourteenth Amendment and 42 plaintiff seeks to proceed in forma pauperis, “the court shall U.S.C. § 1983; (4) a claim against Defendant Stanton for dismiss the case at any time if the court determines that—... violating Plaintiff's due process right to a jury trial pursuant (B) the action ... (i) is frivolous or malicious; (ii) fails to state a to the Fourteenth Amendment and 42 U.S.C. § 1983; (5) claim on which relief may be granted; or (iii) seeks monetary a claim against Defendant Stanton for sending a dismissal relief against a defendant who is immune from such relief.” notice electronically in violation of the First Amendment 28 U.S.C. § 1915(e)(2)(B).5 Additionally, when reviewing a complaint, a court may also 18-CV-1471, 2019 WL 981850, at *3 (N.D.N.Y. Jan. 7, look to the Federal Rules of Civil Procedure. Rule 8 of the 2019) (Peebles, M.J.) (citing Krug v. Cnty. of Rennselaer, Federal Rules of Civil Procedure provides that a pleading 559 F. Supp. 2d 223, 247 (N.D.N.Y. 2008) (McAvoy, J.); which sets forth a claim for relief shall contain, inter alia, “a Turczyn ex rel. McGregor v. City of Utica, 13-CV-1357, 2014 short and plain statement of the claim showing that the pleader WL 6685476, at *2 (N.D.N.Y. Nov. 26, 2014) (Sharpe, J.); is entitled to relief.” See Fed. R. Civ. P. 8(a)(2). The purpose of Hoisington v. Cnty. of Sullivan, 55 F. Supp. 2d 212, 214 Rule 8 “is to give fair notice of the claim being asserted so as (S.D.N.Y. 1999) (“Under New York law, a department of a to permit the adverse party the opportunity to file a responsive municipal entity is merely a subdivision of the municipality answer, prepare an adequate defense and determine whether and has no separate legal existence. Therefore, municipal the doctrine of res judicata is applicable.” Powell v. Marine departments like the Department of Social Services are not Midland Bank, 162 F.R.D. 15, 16 (N.D.N.Y. 1995) (McAvoy, amenable to suit and no claims lie directly against the C.J.) (quoting Brown v. Califano, 75 F.R.D. 497, 498 (D.D.C. Department.”)), report and recommendation adopted by 2019 1977)). WL 974824 (N.D.N.Y. Feb. 28, 2019) (Suddaby, C.J.). *4 A court should not dismiss a complaint if the plaintiff As a result, I recommend that all claims against Defendant has stated “enough facts to state a claim to relief that is Utica Police Department be dismissed for failure to state a plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. claim upon which relief may be granted. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw Moreover, to the extent that the Court is inclined—for the sake the reasonable inference that the defendant is liable for the of judicial efficiency—to review Plaintiff's claims against misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 Defendant Utica Police Department, as against Defendant (2009). While the court should construe the factual allegations City of Utica, I still recommend dismissal of Plaintiff's claims in the light most favorable to the plaintiff, “the tenet that a for failure to state a claim upon which relief may be granted. court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Ashcroft, A municipality may only be named as a defendant in certain 556 U.S. at 678. “Threadbare recitals of the elements of a circumstances. Pursuant to the standard for establishing cause of action, supported by mere conclusory statements, do municipal liability laid out in Monell v. Dep't of Soc. Servs. not suffice.” Id. (citing Twombly, 550 U.S. at 555). Rule 8 of the City of New York, 436 U.S. 658 (1978), in order to set “demands more than an unadorned the-defendant-unlawfully- forth a cognizable claim for municipal liability under Section harmed-me accusation.” Id. Thus, a pleading that contains 1983, a plaintiff must plead and prove that a deprivation only allegations which “are so vague as to fail to give the of his constitutional rights “was caused by a governmental defendants adequate notice of the claims against them” is custom, policy, or usage of the municipality.” Jones v. Town subject to dismissal. Sheehy v. Brown, 335 F. App'x 102, 104 of E. Haven, 691 F.3d 72, 80 (2d Cir. 2012) (citing Monell, (2d Cir. 2009). 436 U.S. 658); see also Vippolis v. Vill. of Haverstraw, 768 F.2d 40, 44 (2d Cir. 1985) (“The plaintiff must first prove the existence of a municipal policy or custom in order to IV. ANALYSIS show that the municipality took some action that caused his In addressing the sufficiency of a plaintiff's complaint, the injuries beyond merely employing the misbehaving officer.”). court must construe his pleadings liberally. Sealed Plaintiff v. A municipality may be liable for deprivation of constitutional Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008). Having rights under Section 1983 for policies or customs resulting reviewed Plaintiff's Complaint with this principle in mind, I in inadequate training, supervision, or hiring when the failure recommend that all causes of action be dismissed. to train, supervise, or hire amounts to deliberate indifference to the rights of those with whom municipal employees will come into contact. See City of Canton, Ohio v. Harris, 489 A. Claims Against the Utica Police Department U.S. 378, 388-89 (1989). A plaintiff must also establish a “Although a municipality is subject to suit pursuant to section causal connection—an affirmative link—between the policy 1983, see Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 and the deprivation of his constitutional rights. Oklahoma v. (1978), a municipal police department does not have the Tuttle, 471 U.S. 808, 823 (1985) (plurality opinion). Indeed, itself deprives an individual of a constitutional right; it “may surveilling him). “[A finding of] factual frivolousness is not be held liable on a theory of respondeat superior.” Jeffes appropriate when the facts alleged rise to the level of v. Barnes, 208 F.3d 49, 56 (2d Cir. 2000). the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict *5 Critically, “a prerequisite to municipal liability under them.” Denton v. Hernandez, 504 U.S. 25, 33 (1992). The Monell is an underlying constitutional violation by a state term “frivolous” embraces “not only the inarguable legal actor.” Henry-Lee v. City of New York, 746 F. Supp. 2d conclusion, but also the fanciful factual allegation.” Neitzke 546, 567 (S.D.N.Y. 2010). As the Second Circuit has noted, v. Williams, 490 U.S. 319, 325 (1989). Plaintiff's allegations, “Monell does not provide a separate cause of action for even under a liberal reading that the courts give pro se the failure by the government to train its employees; it pleadings, easily qualify as frivolous under the standard extends liability to a municipal organization where that asserted above. See Denton, 504 U.S. at 33. organization's failure to train, or the policies or customs that it has sanctioned, led to an independent constitutional As a result, I recommend that Plaintiff's claims regarding violation.” Segal v. City of New York, 459 F.3d 207, 219 (2d Miller Park be dismissed for failure to state a claim upon Cir. 2006); see also id. (noting that once a “district court which relief may be granted and, in the alternative, for properly [finds] no underlying constitutional violation, its frivolity. decision not to address the municipal defendants’ liability under Monell [is] entirely correct”). 2. Failure to Arrest Mr. Tinco 1. Miller Park To the extent that Plaintiff's Complaint asserts a claim based on an alleged failure to file charges against Mr. Tinco or I recommend that Plaintiff's claims with respect to Miller help Plaintiff obtain an order of protection against Mr. Tinco, Park be dismissed for failure to state a claim upon which I recommend that it be dismissed. Plaintiff does not have relief may be granted. The allegation that police officers standing to compel any law enforcement agency to prosecute are merely present in a public space, such as a park, at the suspected criminal acts because there is no private right of same time as Plaintiff fails to allege that Plaintiff's rights action to enforce state or federal criminal statutes. See Linda were violated in any way. See Hickombottom v. City of R.S. v. Richard D., 410 U.S. 614, 619 (1973) (“[A] private Chicago, 739 F. Supp. 1173, 1179 (N.D. Ill. 1990) (police citizen lacks a judicially cognizable interest in the prosecution surveillance of plaintiff's apartment did not violate the Fourth or nonprosecution of another.”); see also Walker v. CIBC Ltd., Amendment in that plaintiff had no reasonable expectation 20-CV-1337, 2021 WL 3518439, at *5 (N.D.N.Y. Apr. 13, of privacy as to his comings and goings); Phillips v. City of 2021) (Hummel, M.J.) (“It appears plaintiff is either seeking San Jose, C-94-20468, 1994 WL 706213, at *4 (N.D. Cal. the criminal prosecution of an individual or individuals or a Dec. 13, 1994) (allegations that the police officers followed law enforcement investigation, which is beyond this Court's and observed plaintiff in public areas were not sufficiently jurisdiction.”), report-recommendation adopted by 2021 WL egregious to constitute a due process violation under the 3204860 (N.D.N.Y. July 29, 2021) (McAvoy, J.); McFadden Fourteenth Amendment). v. Ortiz, 12-CV-1244, 2013 WL 1789593, at *3 (N.D.N.Y. Apr. 26, 2013) (D'Agostino, J.) (holding that “there is no Moreover, courts in this Circuit have routinely dismissed private right of action to enforce either state or federal similar claims as factually frivolous. See McNaughton criminal statutes.”). v. de Blasio, 20-CV-6991, 2020 WL 5983100, at *4-5 (S.D.N.Y. Oct. 8, 2020) (dismissing as frivolous the plaintiff's *6 As a result, I recommend that Plaintiff's claims regarding allegations including, inter alia, that the N.Y.P.D. was the failure to arrest Mr. Tinco be dismissed. enlisting parents and their children in an elaborate scheme to lure the plaintiff into committing pedophilic acts); Gamez v. U.S. Dist. Court Eastern and Southern Dist. of-Tyranny, 3. Failure to Arrest Trespassers New York, 11-CV-4068, 2011 WL 3949807, at *2 (E.D.N.Y. Sept. 6, 2011) (dismissing as factually frivolous, the plaintiff's and Report-Recommendation, I recommend that Plaintiff's claims regarding the failure to arrest alleged trespassers be C. Claims Against New York State Attorney General's dismissed for lack of standing. Office As set forth above in Part IV.A.2. of this Order and Report-Recommendation, this Court does not have authority B. Claims Against Defendant Stanton to commence its own investigation, commence criminal Plaintiff's Complaint appears to assert claims against prosecution, compel a law enforcement agency to investigate Defendant Stanton in his individual and official capacity, for suspected criminal activity, or compel a prosecutor to actions he allegedly took in his position as Senior United prosecute. Prosecutors possess discretionary authority to States District Judge of the Southern District of New York. bring criminal actions, and they are “immune from control or (Dkt. No. 1 at 8-9.) interference by citizen or court.” Conn. Action Now, Inc. v. Roberts Plating Co., 457 F.2d 81, 87 (2d Cir. 1972). It is well settled that “officials acting in a judicial capacity are entitled to absolute immunity against § 1983 actions, *7 As a result, I recommend that Plaintiff's claims against and this immunity acts as a complete shield to claims the New York State Attorney General's Office be dismissed. for money damages.” Montero v. Travis, 171 F.3d 757, 760 (2d Cir. 1999); see also Mireles v. Waco, 502 U.S. 9, 9-10 (1991) (citations omitted) (“A long line of this D. Claims Against Unnamed New York State Officials Court's precedents acknowledges that, generally, a judge is I recommend that Plaintiff's claims against unnamed New immune from a suit for money damages. Although unfairness York State officials regarding the denial of her Emergency and injustice to a litigant may result on occasion, ‘it is a Rental Assistance Program (“ERAP”) housing application, be general principle of the highest importance to the proper dismissed. administration of justice that a judicial officer, in exercising authority vested in him, shall be free to act upon his own First, to the extent that those claims are asserted against convictions, without apprehension of personal consequences employees of New York State in their official capacity, they to himself.”); Mahapatra v. Comstock, 97-CV-7129, 1998 are barred by the Eleventh Amendment. “[A]s a general rule, WL 88054, at *1 (2d Cir. Feb. 26, 1998) (“[T]he district state governments may not be sued in federal court unless they court properly dismissed the claims for damages based on have waived their Eleventh Amendment immunity, or unless absolute immunity. Judges are shielded from liability for Congress has abrogated the states’ Eleventh Amendment civil damages for judicial acts performed in their judicial immunity....” Gollomp v. Spitzer, 568 F.3d 355, 366 (2d Cir. capacities.”); McKnight v. Middleton, 699 F. Supp. 2d 507, 2009). 523 (E.D.N.Y. 2010) (“It is well settled that judges generally have absolute immunity from suits for money damages for New York6 has not waived its Eleventh Amendment their judicial actions.”). “A judge will not be deprived of immunity to suit in federal court, and Congress did not immunity because the action he took was in error, was done abrogate the states’ immunity in enacting 42 U.S.C. § 1983. maliciously, or was in excess of his authority; rather, he will See Trotman v. Palisades Interstate Park Comm'n, 557 F.2d be subject to liability only when he has acted in the clear 35, 40 (2d Cir. 1977). The Eleventh Amendment therefore absence of all jurisdiction.” Stump v. Sparkman, 435 U.S. 349, bars Plaintiff's § 1983 claims against New York State officials 357 (1978). in their official capacity as employees of New York State from proceeding in federal court. Plaintiff's allegations regarding Defendant Stanton appear to relate to actions he took as judge, while presiding over another Second, Courts have held that there is no private cause of civil proceeding initiated by Plaintiff. (See generally Dkt. No. action for the denial of an application for federally funded 1.) The Complaint is devoid of facts plausibly suggesting emergency rental assistance program funds.7 See Wexler that Defendant Stanton took any action as an individual, and v. Dep't of Children and Families, 22-CV-1111, 2022 WL therefore also fails to allege that he acted in the clear absence 5250140, at *2 (M.D. Fla. Sept. 19, 2022) (recommending of all jurisdiction. As a result, I recommend that the claims dismissal of the plaintiffs’ claims alleging that their federal against Defendant Stanton be dismissed in their entirety based Emergency Rental Assistance Program applications were no express or implied cause of action under the CAA and Plaintiff was similarly situated to anyone or that she was the undersigned is aware of no Court ... that has found treated differently. Accordingly, I recommend that Plaintiff's otherwise”); Turner v. Hamilton Cnty. Trustee Assn., 22- Fourteenth Amendment Equal Protection claims against CV-0275, 2022 WL 1606289, at *4 (S.D. Ind. May 20, Defendant Schumer be dismissed for failure to state a claim 2022) (dismissing the plaintiff's claim that his application for upon which relief may be granted.8 federally funded Emergency Rental Assistance Program was improperly denied as fraudulent and holding that “there is Further, to the extent that Plaintiff attempts to state conspiracy no private right of action created, expressly or impliedly, by claims pursuant to 42 U.S.C. §§ 1985, 1986, I recommend Congress in the CAA or the CARES Act.”). that they be dismissed for failure to state a claim upon which relief may be granted. As a result, I recommend that Plaintiff's claims against unnamed New York State officials for denial of her ERAP “[T]o make out a violation of § 1985(3) ..., the plaintiff must application, be dismissed based on the doctrine of immunity allege and prove four elements: (1) a conspiracy; (2) for the pursuant to the Eleventh Amendment and because it fails to purpose of depriving, either directly or indirectly, any person state a claim upon which relief may be granted. or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person is E. Claims Against Defendant Schumer either injured in his person or property or deprived of any The Fourteenth Amendment's Equal Protection Clause right or privilege of a citizen of the United States.” United mandates equal treatment under the law. Essential to that Brotherhood of Carpenters & Joiners of Am., Loc. 610, AFL- protection is the guarantee that similarly situated persons be CIO v. Scott, 103 S. Ct. 3352, 3356 (1983). A “conspiracy” treated equally. City of Cleburne, Tex. v. Cleburne Living Ctr., requires, for purposes of Section 1985, “a plurality of actors 473 U.S. 432, 439 (1985). “In order to establish an equal committed to a common goal.” Frooks v. Town of Cortlandt, protection violation, the plaintiffs must show that they were 997 F. Supp. 438, 456 (S.D.N.Y. 1998), aff'd, 182 F.3d 899 treated differently than other people in similar circumstances (2d Cir. 1999). and must establish that such unequal treatment was the result of intentional and purposeful discrimination.” Chaney v. In addition, a claim pursuant to Section 1985 requires that Koupash, 04-CV-0126, 2008 WL 5423419, at *20 (N.D.N.Y. a plaintiff allege “some racial or [ ] otherwise class-based Dec. 30, 2008) (Homer, M.J.) (citing Myers v. Barrett, 95- animus behind the conspirators’ action.” Palmieri v. Lynch, CV-1534, 1997 WL 151770, at *3 (N.D.N.Y. Mar. 28, 1997) 392 F.3d 73, 86 (2d Cir. 2004). The Complaint fails to allege (Pooler, J.)). In addition, a valid equal protection claim may any racial or class-based animus other than one conclusory be brought by a “class of one” “where the plaintiff alleges assertion that the “Tech-giants” racially targeted Plaintiff that she [or he] has been intentionally treated differently from because she is a Black American “and all the tech-giant others similarly situated and that there is no rational basis for defendants are of white or Asian” descent. (See generally Dkt. the difference in treatment.” Vill. of Willowbrook v. Olech, 528 No. 1.) “[C]onclusory allegations are inadequate to make out U.S. 562, 564 (2000); Neilson v. D'Angelis, 409 F.3d 100, 105 a claim under Section 1985.” Jones v. Nat'l Commc'n and (2d Cir. 2005). Surveillance Networks, 409 F. Supp. 2d 456, 472 (S.D.N.Y. 2006) (citing Salgado v. City of N.Y., 00-CV-3667, 2001 WL *8 Plaintiff fails to allege any facts plausibly suggesting 290051, at *8 (S.D.N.Y. Mar. 26, 2001); Sadler v. Brown, 793 that she was treated differently from similarly situated F. Supp. 87, 90 (S.D.N.Y. 1992)). Thus, Plaintiff does not individuals or any other individuals. Vague and conclusory sufficiently allege a conspiracy between Defendant Schumer allegations, are insufficient to plausibly suggest an equal and/or others to deprive Plaintiff of any federally protected protection violation. See De Jesus v. Sears Roebuck & Co., rights. Inc., 87 F.3d 65, 70 (2d Cir. 1996); see Byng v. Delta Recovery Servs., LLC., 13-CV-0733, 2013 WL 3897485, Likewise, Plaintiff does not allege a claim under Section at *15, n. 5 (N.D.N.Y. July 29, 2013) (D'Agostino, J.) 1986, which proscribes knowingly failing to prevent a Section (finding that Attica inmate alleged no facts in the complaint 1985 conspiracy “which such person by reasonable diligence to indicate he was similarly situated to anyone or that could have prevented,” and explicitly requires an underlying New York, 221 F.3d 329, 341 (2d Cir. 2000) (“[A] § 1986 involvement by Defendants Amazon.com, Facebook.com, claim must be predicated on a valid § 1985 claim.”). Google.com, Zazzle.com, Cafepress.com, Redbubble.com, Bezos, and Zuckerberg. (See generally Dkt. No. 1.) *9 As a result, I recommend that Plaintiff's claims against Defendant Schumer be dismissed. Moreover, to the extent that Plaintiff sought to allege a claim against Defendants Amazon.com, Facebook.com, Google.com, Zazzle.com, Cafepress.com, Redbubble.com, F. Claims Against Defendants Amazon.com, Bezos, and Zuckerberg for stalking, cyberstalking, and Facebook.com, Google.com, Zazzle.com, harming Plaintiff, there is no private cause of action for Cafepress.com, Redbubble.com, Bezos, and stalking or general “harm.” Sonnick v. Budlong, 20-CV-0410, Zuckerberg 2020 WL 2999109, at *5, 9 n.8, 11 (N.D.N.Y. June 4, A claim for relief under 42 U.S.C. § 1983 must allege 2020) (Lovic, M.J.) (citations omitted) (“[F]ederal stalking facts showing that the defendant acted under color of state is a crime pursuant to 18 U.S.C. § 2261A, and does not “statute, ordinance, regulation, custom or usage.” 42 U.S.C. provide for a private cause of action.... New York does not § 1983. Thus, to state a claim under § 1983, a plaintiff must recognize private causes of action for stalking, harassment, or allege both that: (1) a right secured by the Constitution or trespass.”), report and recommendation adopted by 2020 WL laws of the United States was violated, and (2) the right 4345004 (N.D.N.Y. July 29, 2020) (McAvoy, J.). was violated by a person acting under the color of state law, or a “state actor.” West v. Atkins, 487 U.S. 42, 48-49 *10 As a result, I recommend that Plaintiff's claims against (1988). Generally, private parties are not state actors, and Defendants Amazon.com, Facebook.com, Google.com, are not liable under § 1983. Sykes v. Bank of Am., 723 F.3d Zazzle.com, Cafepress.com, Redbubble.com, Bezos, and 399, 406 (2d Cir. 2013) (quoting Brentwood Acad. v. Tenn. Zuckerberg be dismissed for failure to state a claim upon Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295 (2001)); see which relief may be granted. also Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 323 (2d Cir. 2002) (“[T]he United States Constitution regulates only the Government, not private parties....”) (internal quotation G. Conspiracy marks and citations omitted). “Because the United States As set forth above in Part IV. E. of this Order and Constitution regulates only the Government, not private Report-Recommendation, the Complaint fails to allege facts parties, a litigant claiming that his constitutional rights have plausibly suggesting racial or class-based animus—other been violated must first establish that the challenged conduct than Plaintiff's legally insufficient, conclusory assertion that constitutes ‘state action.’ ” United States v. Int'l Bhd. of unnamed “Tech-giants” racially targeted Plaintiff because she Teamsters, Chauffeurs, Warehousemen & Helpers of Am., 941 is a Black American “and all the tech-giant defendants are of F.2d 1292, 1295-96 (2d Cir. 1991) (citing Blum v. Yartsky, white or Asian” descent. (Dkt. No. 1 at 12.) Thus, Plaintiff 457 U.S. 991, 1002 (1982)). A private defendant may be held does not sufficiently allege a conspiracy between Defendants liable only as “a willing participant in joint activity with the and/or others to deprive her of any federally protected rights State or its agents.” Adickes v. S.H. Kress & Co., 398 U.S. pursuant to 42 U.S.C. § 1985. Moreover, because Plaintiff 144 (1970) (quoting United States v. Price, 383 U.S. 787, 794 fails to allege an underlying conspiracy pursuant to 42 U.S.C. (1966)). Claims under § 1983 can be brought against private § 1985, she likewise fails to allege a claim pursuant to 42 entities by “showing that a person acting under color of state U.S.C. § 1986, which proscribes knowingly failing to prevent law ... collaborated with a private person ... to deprive the a Section 1985 conspiracy. plaintiff of a constitutional right.” Fries v. Barns, 618 F.2d 988, 990 (2d Cir. 1980) (citing Adickes, 398 U.S. at 144). As a result, to the extent that Plaintiff alleges conspiracy claims pursuant to 42 U.S.C. §§ 1985, 1986 against any Here, the Complaint fails to allege facts plausibly suggesting Defendant, I recommend that they be dismissed. that Defendants Amazon.com, Facebook.com, Google.com, Zazzle.com, Cafepress.com, Redbubble.com, Bezos, and Zuckerberg were “state actors” or were “collaborating” with H. Claims Against Defendants Williams, Piersall, De state actors. Plaintiff's inclusion of citations to the statute—42 Traglia, Aiello, Baye, Phillips, Grullon, French, Rios, Durham, Newstead, and Hopskin the Court decline to exercise jurisdiction over those claims. “It is well settled in this Circuit that ‘personal involvement See 28 U.S.C. § 1367(c)(3) (providing that a district court of defendants in alleged constitutional deprivations is a “may decline to exercise supplemental jurisdiction over prerequisite to an award of damages under § 1983.’ ” [pendent state law claims] if ... the district court has Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (quoting dismissed all claims over which it has original jurisdiction”); Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 1991)). In order to prevail on a section 1983 cause of action (1988) (“[I]n the usual case in which all federal-law claims against an individual, a plaintiff must show “a tangible are eliminated before trial, the balance of factors to be connection between the acts of a defendant and the injuries considered under the pendent jurisdiction doctrine—judicial suffered.” Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). economy, convenience, fairness, and comity—will point “[D]irect participation as a basis of liability in this context toward declining to exercise jurisdiction over the remaining requires intentional participation in the conduct constituting state-law claims.”); Walker v. Time Life Films, Inc., 784 F.2d a violation of the victim's rights by one who knew of the facts 44, 53 (2d Cir. 1986) (citing Kavit v. A.L. Stamm & Co., 491 rendering it illegal.” Provost v. City of Newburgh, 262 F.3d F.2d 1176, 1180 (1974)) (holding that “federal courts, absent 146, 155 (2d Cir. 2001) (internal quotation marks omitted). exceptional circumstances, should abstain from exercising pendent jurisdiction when federal claims in a case can be The caption of the Complaint lists Defendants Williams, disposed of by summary judgment”). Piersall, De Traglia, Aiello, Baye, Phillips, Grullon, French, Rios, John Does, James, Brin, Page, Pichai, Beaver, Marino, Durham, Newstead, and Hopskin but the body of the V. OPPORTUNITY TO AMEND Complaint does not contain any factual allegations regarding Generally, a court should not dismiss claims contained in a them. Thus, I recommend that Plaintiff's claims against complaint filed by a pro se litigant without granting leave to Defendants Williams, Piersall, De Traglia, Aiello, Baye, amend at least once “when a liberal reading of the complaint Phillips, Grullon, French, Rios, John Does, James, Brin, Page, gives any indication that a valid claim might be stated.” Pichai, Beaver, Marino, Durham, Newstead, and Hopskin Branum v. Clark, 927 F.2d 698, 704-05 (2d Cir. 1991); be dismissed. See Johnson v. Gonzalez, 14-CV-0745, 2015 see also Fed. R. Civ. P. 15(a)(2) (“The court should freely WL 1179384, at *6 (N.D.N.Y. Mar. 13, 2015) (Kahn, give leave when justice so requires.”). An opportunity to J.) (dismissing the claims against a defendant where the amend is not required, however, where “the problem with [the complaint lists the defendant's “name in the caption, but plaintiff's] causes of action is substantive” such that “better fails to again name or assert allegations against him.”); pleading will not cure it.” Cuoco v. Moritsugu, 222 F.3d 99, Serrano v. New York State Dep't of Envtl. Conservation, 112 (2d Cir. 2000); see also Cortec Indus. Inc. v. Sum Holding 12-CV-1592, 2013 WL 6816787, at *15 (N.D.N.Y. Dec. L.P., 949 F.2d 42, 48 (2d Cir. 1991) (“Of course, where a 20, 2013) (D'Agostino, J.) (citing Jaffer v. Chemical Bank, plaintiff is unable to allege any fact sufficient to support its 93-CV-8459, 1994 WL 392260, at *3 (S.D.N.Y. July 26, claim, a complaint should be dismissed with prejudice.”). 1994) (holding that “[w]hen a complaint's caption names a Stated differently, “[w]here it appears that granting leave to defendant but the complaint does not indicate that the named amend is unlikely to be productive, ... it is not an abuse of party injured the plaintiff or violated the law, the motion discretion to deny leave to amend.” Ruffolo v. Oppenheimer to dismiss must be granted”)) (dismissing the plaintiff's & Co., 987 F.2d 129, 131 (2d Cir. 1993); accord, Brown v. claims against two defendants who were listed as parties in Peters, 95-CV-1641, 1997 WL 599355, at *1 (N.D.N.Y. Sept. the complaint and in the caption, but not elsewhere in the 22, 1997) (Pooler, J.).10 complaint). *12 I recommend that Plaintiff's claims against Defendant Utica Police Department be dismissed without leave to amend I. Statements of Defendants Schultz, Vomer, and because it is not an entity that is amenable to suit. Moreover, Sanders to the extent that Plaintiff's claims against Defendant Utica *11 Having found that all of Plaintiff's federal claims are Police Department are construed as against Defendant City subject to dismissal, I recommend that, to the extent Plaintiff of Utica, I recommend that they be dismissed without leave has asserted any state law claims—such as defamation to amend because (1) Plaintiff's claims regarding Miller Park cure the issue with Plaintiff's claims alleging that the Utica should note that the law in this circuit clearly provides Police Department failed to arrest Mr. Tinco and the criminal that “ ‘complaints relying on the civil rights statutes are trespassers. insufficient unless they contain some specific allegations of fact indicating a deprivation of rights, instead of a litany I recommend that Plaintiff's claims against Defendant Stanton of general conclusions that shock but have no meaning.’ be dismissed without leave to amend because he is entitled to ” Hunt v. Budd, 895 F. Supp. 35, 38 (N.D.N.Y. 1995) absolute judicial immunity. (McAvoy, J.) (quoting Barr v. Abrams, 810 F.2d 358, 363 (2d Cir. 1987)); accord Pourzancvakil v. Humphry, 94- In addition, a better pleading will not cure the issue with CV-1594, 1995 WL 316935, at *7 (N.D.N.Y. May 22, Plaintiff's claim against the New York Attorney General's 1995) (Pooler, J.). Therefore, in any amended complaint, Office alleging that it failed to investigate and prosecute Plaintiff must clearly set forth facts that give rise to the alleged criminal and improper conduct. As a result, to the claims, including the dates, times, and places of the alleged extent that the Complaint is construed as asserting any underlying acts, and each individual who committed each claim against the New York Attorney General's Office, I alleged wrongful act. In addition, the revised pleading should recommend that it be dismissed without leave to amend. allege facts demonstrating the specific involvement of any of the named defendants in the constitutional deprivations To the extent that Plaintiff's Complaint is construed as alleged in sufficient detail to establish that they were tangibly asserting any claims against unnamed New York State connected to those deprivations. Bass v. Jackson, 790 F.2d officials for denying her ERAP application, I recommend 260, 263 (2d Cir. 1986). Finally, Plaintiff is informed that any that they be dismissed without leave to amend because (1) such amended complaint will replace the existing Complaint, the officials in their official capacity are immune from suit and must be a wholly integrated and complete pleading that pursuant to the Eleventh Amendment, and (2) there is no does not rely upon or incorporate by reference any pleading private cause of action to pursue Plaintiff's allegations. or document previously filed with the Court. See Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994) Further, to the extent that Plaintiff asserted claims against (“It is well established that an amended complaint ordinarily Defendants Amazon.com, Facebook.com, Google.com, supersedes the original and renders it of no legal effect.”). Zazzle.com, Cafepress.com, Redbubble.com, Bezos, and Zuckerberg for stalking, cyber stalking, and harassment, I recommend that they be dismissed without leave to amend VI. PLAINTIFF'S MOTION TO APPOINT COUNSEL because there is no private cause of action for stalking, cyber *13 Plaintiff has also submitted a request for appointment stalking, and harassment. of counsel. (Dkt. No. 5.) This Court has serious doubts about whether Plaintiff can As an initial matter, “[a] party has no constitutionally amend to assert actionable claims pursuant to 42 U.S.C. guaranteed right to the assistance of counsel in a civil case.” §§ 1983, 1985, and 1986 against Defendants Schumer, Leftridge v. Connecticut State Trooper Officer No. 1283, 640 Amazon.com, Facebook.com, Google.com, Zazzle.com, F.3d 62, 68 (2d Cir. 2011) (citations omitted). Courts cannot Cafepress.com, Redbubble.com, Bezos, Zuckerberg, utilize a bright-line test in determining whether counsel Williams, Piersall, De Traglia, Aiello, Baye, Phillips, Grullon, should be appointed on behalf of an indigent party. Hendricks French, Rios, John Does, James, Brin, Page, Pichai, Beaver, v. Coughlin, 114 F.3d 390, 392-93 (2d Cir. 1997). Instead, a Marino, Durham, Newstead, and Hopskin, Schultz, Vomer, number of factors must be carefully considered by the court and Sanders. However, out of an abundance of caution, in ruling upon such a motion. As a threshold matter, the court I recommend that Plaintiff be permitted to amend those should ascertain whether the indigent's claims seem likely to claims against those Defendants. In addition, to the extent be of substance. A motion for appointment of counsel may that Plaintiff sought to allege any defamation claim against be properly denied if the court concludes that the plaintiff's Defendants Schultz, Vomer, and Sanders, I recommend that “chances of success are highly dubious.” Leftridge, 640 F.3d she be permitted to amend that claim too. at 69. If the court finds that the claims have substance, the court should then consider: against Defendants Schumer, Amazon.com, Facebook.com, [T]he indigent's ability to investigate Google.com, Zazzle.com, Cafepress.com, Redbubble.com, the crucial facts, whether conflicting Bezos, Zuckerberg, Williams, Piersall, De Traglia, Aiello, evidence implicating the need for Baye, Phillips, Grullon, French, Rios, John Does, James, cross-examination will be the major Brin, Page, Pichai, Beaver, Marino, Durham, Newstead, and proof presented to the fact finder, the Hopskin, Schultz, Vomer, and Sanders, and (2) a defamation indigent's ability to present the case, claim against Defendants Schultz, Vomer, and Sanders, the complexity of the legal issues and because it fails to state a claim upon which relief may be any special reason in th[e] case why granted, pursuant to 28 U.S.C. § 1915(e)(2)(B); and it is appointment of counsel would be more further respectfully likely to lead to a just determination. RECOMMENDED that the Court DISMISS WITHOUT LEAVE TO REPLEAD Plaintiff's Complaint (Dkt. No. 1) to Terminate Control Corp., 28 F.3d at 1341 (quoting Hodge v. the extent that it asserts (1) claims against Defendants Utica Police Officers, 802 F.2d 58, 61-62 (2d Cir. 1986)). This is not Police Department, City of Utica, and Stanton; (2) claims to say that all, or indeed any, of these factors are controlling in against the New York Attorney General's Office and unnamed a particular case. Rather, each case must be decided on its own New York State officials; and (3) claims of stalking, cyber facts. Velasquez v. O'Keefe, 899 F. Supp. 972, 974 (N.D.N.Y. stalking, and harassment against Defendants Amazon.com, 1995) (McAvoy, C.J.) (citing Hodge, 802 F.2d at 61). Facebook.com, Google.com, Zazzle.com, Cafepress.com, Redbubble.com, Bezos, Zuckerberg, pursuant to 28 U.S.C. § In the present matter, the Court has recommended dismissal 1915(e)(2)(B); and it is further of the action. As such, the Court cannot find that Plaintiff's claims are likely to be of substance. Plaintiff's motion (Dkt. *14 ORDERED that the Clerk of the Court shall file a copy No. 5) is therefore denied. of this order, report, and recommendation on the docket of this case and serve a copy upon the parties in accordance with ACCORDINGLY, it is the local rules.11 ORDERED that Plaintiff's application to proceed in forma NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties pauperis (Dkt. No. 2) is GRANTED only for purposes of have fourteen days within which to file written objections filing and any appeal unless the trial court certifies in to the foregoing report.12 Such objections shall be filed writing that the appeal is not taken in good faith; and it with the Clerk of the Court. FAILURE TO OBJECT is further TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b) ORDERED that Plaintiff's motion for appointment of (1) (Supp. 2013); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. counsel (Dkt. No. 5) is DENIED without prejudice to Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of refiling; and it is further respectfully Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)). RECOMMENDED that the Court DISMISS WITH LEAVE TO REPLEAD Plaintiff's Complaint (Dkt. All Citations No. 1) to the extent that it asserts (1) claims Not Reported in Fed. Supp., 2023 WL 3352758 Footnotes 44 F.3d 169, 173 (2d Cir. 1995) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). 2 It is unclear if Plaintiff intended to state that she “accidentally menaced” the maintenance person or that she “accidentally” used mace or some form of pepper spray. 3 The language of that section is ambiguous because it suggests an intent to limit availability of in forma pauperis 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 in forma pauperis 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). 4 Plaintiff is reminded that, although her application to proceed in forma pauperis has been granted, she is still required to pay fees that she may incur in this action, including copying and/or witness fees. 5 To determine whether an action is frivolous, a court must look to see whether the complaint “lacks an arguable basis in either law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). 6 “An official capacity suit against a municipal employee is a suit against the municipality itself.” Pittman v. Billings, 20-CV-0422, 2020 WL 2079440, at *9 (N.D.N.Y. Apr. 30, 2020) (Baxter, M.J.), report and recommendation adopted by 2020 WL 2574631 (N.D.N.Y. May 21, 2020) (Sharpe, J.). 7 The “Coronavirus Aid Relief and Economic Security Act (“CARES Act”), which was continued by the [Consolidated Appropriations Act of 2021] CAA and the America Rescue Plan Act, allocated funds for rental assistance.” Turner, 2022 WL 1606289, at *2. 8 The Court notes that, should this action proceed against Defendant Schumer and the United States Attorney make the requisite certification such that the United States be substituted as defendant, Plaintiff has failed to allege compliance with the administrative exhaustion requirements set forth in the Federal Tort Claims Act (FTCA). See De Masi v. Schumer, 608 F. Supp. 2d 516, 518-526 (S.D.N.Y. 2009) (replacing the United States as the allegedly liable party and proceeding as a FTCA suit where the plaintiff alleged that Senator Charles Schumer failed to respond to the plaintiff's repeated requests for assistance as one of Senator Schumer's constituents). 9 To the extent that Plaintiff attempts to allege a retaliation claim against Defendant Sanders pursuant to 42 U.S.C. § 1983 and the First Amendment, I recommend that it also be dismissed because Plaintiff fails to allege that she engaged in any protected speech. (See generally Dkt. No. 1.) Instead, Plaintiff alleges only that Defendant Sanders accused Plaintiff of “want[ing] [U]tica police fired” and asked “why should we help you[?]” after refusing to make an arrest. (Dkt. No. 1 at 7.) However, with additional factual allegations, Plaintiff may have a viable claim against Defendant Sanders. See generally Rudd v. City of Norton Shores, Michigan, 977 F.3d 503, 513-516 (6th Cir. 2020) (citing Briner v. City of Ontario, 370 F. App'x 682, 700 (6th Cir. 2010); Apple v. Glenn, 183 F.3d 477, 479 (6th Cir. 1999)) (holding that (1) “[t]he freedom of speech ... protects the right of an ordinary citizen to criticize public officials ... without fear of criminal or civil repercussions,” and thus, formal petitions including citizen complaints and informal requests for police assistance qualify as protected petitioning of the government, and (2) although “ ‘the right to petition the government does not guarantee a response to the petition or the right to compel government officials to act on or adopt a citizen's views[,]’ [a]nd individuals have no constitutional entitlement to police protection[,].... the ‘unconstitutional conditions’ places limits on the government's ability to deny an otherwise discretionary benefit in retaliation for a person's protected speech.... [thus the Sixth Circuit has previously held that a plaintiff] stated a plausible claim by regarding the [police's] alleged failure to properly investigate [an earlier] burglary[.]’ ”). 10 See also Carris v. First Student, Inc., 132 F. Supp. 3d 321, 340-41 n.1 (N.D.N.Y. 2015) (Suddaby, C.J.) (explaining that the standard set forth in Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 796 (2d Cir. 1999)— that the Court should grant leave to amend “unless the court can rule out any possibility, however unlikely it might be, that an amended complaint would be successful in stating a claim”—is likely not an accurate recitation of the governing law after Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)), rev'd on other grounds, 682 F. App'x 30. 11 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). 12 If you are proceeding pro se and served with this report, recommendation, and order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date that the report, recommendation, and order 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). End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2023 WL 2986825 Recommendation recommending that some of the claims in Only the Westlaw citation is currently available. Plaintiff's Complaint be sua sponte dismissed without leave United States District Court, N.D. New York. to amend, and that the remaining claims in that Complaint be sua sponte dismissed with leave to amend, and (2) Plaintiff's Sheila ROBINSON, Plaintiff, Objections to the Report-Recommendation. (Dkt. Nos. 6, 9.) v. Mark WILLIAMS, Utica NY, Police Officers 1-12; Kyle After carefully reviewing the relevant filings in this action, Piersall, Utica NY, Police Officers 1-12; John DeTraglia, the Court finds no error in the Report-Recommendation, clear Utica NY, Police Officers 1-12; Joseph Aiello, Utica or otherwise:1 Magistrate Judge Lovric employed the proper NY, Police Officers 1-12; Brian Baye, Utica NY, Police standards, accurately recited the facts, and reasonably applied Officers 1-12; Marissa Vomer, Utica NY, Police Officers the law to those facts. As a result, the Court accepts and adopts the Report-Recommendation for the reasons stated therein. To 1-12; K. Phillips, Utica NY, Police Officers 1-12; Benny those reasons, the Court adds only two points. Grullon, Utica NY, Police Officers 1-12; Derek Shultz, Utica NY, Police Officers 1-12; Reginald Sanders, Utica First, even when construed with the utmost of special NY, Police Officers 1-12; Brian French, Utica NY, liberality, Plaintiff's “Objections” fail to assert a specific Police Officers 1-12; Hiram Rios, Utica NY, Police challenge to the Report-Recommendation. (Compare Dkt. Officers 1-12; Louis L. Stanton, New York State Judge; No. 9 with Dkt. No. 6.)2 As a result, the “challenged John Does, Unknown New York State Erap Officials; portions” of the Report-Recommendation are entitled to only Letitia James, New York State Attorney General; Chuck a clear-error review. In any event, even if the Court were to Schumer, U.S. Senator for New York; Amazon.com; subject those portions of the Report-Recommendation to a Jeff Bezos, CEO of Amazon.com; Facebook.com; de novo review, the Court would find that they survive that Mark Zuckerberg, CEO of Facebook.com; Google.com; review. Sergin Brin, of Google; Larry Page, of Google; Sundar Pichai, CEO of Google; Zazzle.com; Robert Beaver, *2 Second, rather than wait for the undersigned's ruling on Magistrate Judge Lovric's Report-Recommendation, Plaintiff CEO of Zazzle.com; Cafepress.com; Bob Marino, CEO has attempted to file an Amended Complaint. (Dkt. No. 10.) of Cafepress.com; Fred Durham, of Cafepress.com; This litigation practice has complicated matters because, even Redbubble.com; Barry Newstead, of Redbubble.com; assuming that Plaintiff had an absolute right to file such an Martin Hopskin, of Redbubble.com; Utica New York Amended Complaint under Fed. R. Civ. P. 15(a)(1) despite Police Dept., and City of Utica, New York, Defendants. the fact that she had not yet served her Complaint,3 an 6:22-CV-0982 (GTS/ML) amended complaint supersedes an original complaint in all respects.4 This means that, arguably, Plaintiff's Amended Signed April 18, 2023 Complaint has partially mooted Magistrate Judge Lovric's Report-Recommendation, which analyzed Plaintiff's original Attorneys and Law Firms Complaint. SHEILA ROBINSON, Plaintiff, Pro Se, 939 Ontario Avenue, Out of a desire for judicial efficiency, the Court is tempted to Niagara Falls, New York 14301. apply the recommendations in the Report-Recommendation to Plaintiff's Amended Complaint. However, the Court is mindful of the Second Circuit's admonition that a pro se DECISION and ORDER plaintiff's request to amend her complaint when a motion to dismiss is pending should be denied only without prejudice, GLENN T. SUDDABY, United States District Judge or perhaps stayed, until she has had the benefit of the district *1 Currently before the Court, in this pro se civil rights court's ruling on the motion to dismiss.5 action filed by Sheila Robinson (“Plaintiff”) against the above-captioned individuals and entities (“Defendants”), are apply Magistrate Judge Lovric's Report-Recommendation Plaintiff's claims under 42 U.S.C. §§ 1983, 1985, and 1986 to Plaintiff's original Complaint while deeming Plaintiff's against Defendants Schumer, Amazon.com, Facebook.com, Google.com, Zazzle.com, Cafepress.com, Redbubble.com, Amended Complaint as a proposed Amended Complaint (out Bezos, Zuckerberg, Williams, Piersall, DeTraglia, Aiello, of special solicitude to Plaintiff as a pro se civil rights litigant), Baye, Phillips, Grullon, French, Rios, John Does, James, and holding that proposed Amended Complaint in abeyance Brin, Page, Pichai, Beaver, Marino, Durham, Newstead, pending confirmation from Plaintiff that it is indeed the Hopskin, Schultz, Vomer, and Sanders; and (2) Plaintiff's Amended Complaint on which she wishes to proceed. defamation claims against Defendants Schultz, Vomer, and Sanders; and it is further *3 ACCORDINGLY, it is ORDERED that Magistrate Judge Lovric's Report- ORDERED that, more specifically, within THIRTY (30) Recommendation (Dkt. No. 6) is ACCEPTED and DAYS of the date of this Decision and Order, Plaintiff shall do one of the following two things: (1) notify the Court in writing ADOPTED; and it is further that her proposed Amended Complaint (Dkt. No. 10) is indeed the Amended Complaint on which she wishes to proceed, or ORDERED that the following claims in Plaintiff's Complaint (2) file a revised Amended Complaint; and it is further (Dkt. No. 1) are DISMISSED: (1) Plaintiff's claims against Utica Police Department, the City of Utica, and Judge Stanton; (2) Plaintiff's claims against the New York State ORDERED that, upon Plaintiff's fulfillment of one of the conditions set forth in the preceding paragraph (or, in the Attorney General and unnamed New York State officials; absence of his fulfillment of either condition, after the passage and (3) Plaintiff's stalking claims, cyberstalking claims, of thirty days), Plaintiff's operative Amended Complaint shall and harassment claims against Amazon.com, Facebook.com, be referred to Magistrate Judge Lovric for review of its Google.com, Zazzle.com, Cafepress.com, Redbubble.com, pleading sufficiency pursuant to 28 U.S.C. § 1915(e) (as well Bezos, and Zuckerberg; and it is further as his management of pretrial matters). ORDERED that the remaining claims in Plaintiff's Complaint (Dkt. No. 1) shall be DISMISSED without further All Citations Order of this Court UNLESS, within THIRTY (30) DAYS of this Report-Recommendation, Plaintiff files an AMENDED Not Reported in Fed. Supp., 2023 WL 2986825 COMPLAINT that corrects the pleading defects identified Footnotes 1 When no objection is made to a report-recommendation (or when only a general objection is made to a report- recommendation), the Court subjects that report-recommendation to only a clear-error review. Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition. When performing such a clear-error review, “the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.” Id.; see also Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.) (“I am permitted to adopt those sections of [a magistrate judge's] report to which no specific objection is made, so long as those sections are not facially erroneous.”) (internal quotation marks omitted). 2 When a specific objection is made to a portion of a magistrate judge's report-recommendation, the Court subjects that portion of the report-recommendation to a de novo review. Fed. R. Civ. P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C). To be “specific,” the objection must, with particularity, “identify [1] the portions of the proposed findings, recommendations, or report to which it has an objection and [2] the basis for the objection.” N.D.N.Y. L.R. 72.1(c); see also Mario v. P&C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002) (“Although Mario was one sentence on the last page of his objections, where he stated that it was error to deny his motion on the Title VII claim ‘[f]or the reasons set forth in Plaintiff's Memorandum of Law in Support of Motion for Partial Summary Judgment.’ This bare statement, devoid of any reference to specific findings or recommendations to which he objected and why, and unsupported by legal authority, was not sufficient to preserve the Title VII claim.”). 3 Rule 15(a)(1)(A) of the Federal Rules of Civil Procedure provides that “[a] party may amend its pleading once as a matter of course within ... 21 days after serving it....” Fed. R. Civ. P. 15(a)(1)(A) (emphasis added). Here, Plaintiff never served her Complaint; thus, she is arguably not yet within the 21-day window in which she may filed an Amended Complaint as a matter of course. Compare Morris v. New York State Gaming Comm'n, 18- CV-0384, 2019 WL 2423716, at *4 (W.D.N.Y. March 14, 2019) (“Because Plaintiff never served the original Complaint, the 21-day time limit to file an amended complaint under Rule 15(a)(1)(A) never commenced.”) (emphasis added) with Henderson v. Wells Fargo Bank, NA, 13-CV-0378, 2015 WL 630438, at *2 (D. Conn. Feb. 13, 2015) (“Fed. R. Civ. P. 15(a) provides that a ‘party may amend its pleading once as a matter of course within ... 21 days after serving it.’ Because Plaintiff has not yet served Defendant with the complaint, her motion is granted although unnecessary because leave of the Court is not required.”). 4 See Int'lControls Corp. v. Vesco, 556 F.2d 665, 668 (2d Cir. 1977) (“It is well established that an amended complaint ordinarily supersedes the original, and renders it of no legal effect.”); 6 C. Wright & A. Miller, Federal Practice & Procedure § 1476, at 556-57 (2d ed. 1990) (“A pleading that has been amended under Rule 15(a) supersedes the pleading it modifies and remains in effect throughout the action unless it subsequently is modified.”); cf. N.D.N.Y. L.R. 7.1(a)(4) (“[T]he proposed amended pleading ... will supersede the pleading sought to be amended in all respects.”). 5 See Cresci v. Mohawk Valley Community College, 693 F. App'x 21, 25 (2d Cir. June 2, 2017) (“The court's criticism of Cresci for failure to submit a proposed amended complaint before learning whether, and in what respects, the court would find deficiencies was unjustified, and the court's denial of leave to replead, simultaneously with its decision that the complaint was defective, effectively deprived Cresci of a reasonable opportunity to seek leave to amend.”). End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2026 WL 2606630 required clarification as to her reported income, Dkt. No. 13. Only the Westlaw citation is currently available. United States District Court, N.D. New York. Plaintiff filed a second amended motion to proceed IFP on April 3, 2026. Dkt. No. 14. On July 8, 2026, Magistrate VALERIE FLORES, Plaintiff, Judge Lovric granted this request and reviewed the Complaint v. pursuant to 28 U.S.C. § 1915. Dkt. No. 15 (“Report- KENNETH LESTER SMITH, SAMANTHA Recommendation”). Magistrate Judge Lovric recommended SUSSEK SMITH, MELISSA JOHNSON that this Court dismiss the Complaint in its entirety, in part without leave to amend and in part with leave to amend. SMITH, and ANNA VI WELCH, Defendant. Id. at 10.1 Pursuant to 28 U.S.C. § 636(b)(1), Magistrate 1:25-cv-01838 (AMN/ML) Judge Lovric advised that the parties had fourteen days within which to file written objections and that failure to object to the Filed 09/03/2026 Report-Recommendation within those fourteen days would preclude appellate review. Id. On July 20, 2026, Plaintiff Attorneys and Law Firms submitted written objections. Dkt. No. 16. APPEARANCES: For the following reasons, the Court adopts the Report- VALERIE FLORES, P.O. Box 1110 ACP 5749, Albany, NY Recommendation except as to the partial grant of leave to 12201, Plaintiff pro se amend. Valerie Flores, Albany, NY, Pro Se. II. STANDARD OF REVIEW This Court reviews de novo those portions of a magistrate judge's report-recommendation that have been properly MEMORANDUM-DECISION AND ORDER preserved with a specific objection. Petersen v. Astrue, Anne M. Nardacci U.S. District Judge 2 F. Supp. 3d 223, 228 (N.D.N.Y. 2012); 28 U.S.C. § 636(b)(1)(C). If no specific objections have been filed, this I. INTRODUCTION Court reviews a magistrate judge's report-recommendation *1 On December 26, 2025, plaintiff pro se Valerie Flores for clear error. See Petersen, 2 F. Supp. 3d at 229 (“Plaintiff”) commenced this action against Kenneth Lester (citing Fed. R. Civ. P. 72(b), Advisory Committee Notes: Smith, Samantha Sussek Smith, Melissa Johnson Smith, and 1983 Addition). Similarly, if an objection simply rehashes Anna Vi Welch (together, “Defendants”), alleging violations arguments originally presented to the magistrate judge, of her rights. Dkt. No. 1 (“Complaint”). Plaintiff also filed a this Court reviews the relevant portions of the report- motion for the appointment of counsel. Dkt. No. 3. recommendation for clear error. See id. at 228-29 & n.6 (collecting cases). Similarly, when a party files “[g]eneral On January 5, 2026, United States Magistrate Judge Miroslav or conclusory objections, or objections which merely recite Lovric denied Plaintiff's motion for appointed counsel as the same arguments [previously] presented to the magistrate inappropriate. Dkt. No. 5. On January 7, 2026, this Court judge,” the district court reviews a magistrate judge's report- ordered an administrative closure because Plaintiff had not recommendations for clear error. O'Diah v. Mawhir, No. 08- paid the filing fee or applied to proceed in forma pauperis cv-322, 2011 WL 933846, at *1 (N.D.N.Y. Mar. 16, 2011) (“IFP”). Dkt. No. 6. Plaintiff filed a motion to proceed IFP on (citations omitted); accord Mario v. P & C Food Mkts., Inc., January 16, 2026, Dkt. No. 8, and the Court ordered the case 313 F.3d 758, 766 (2d Cir. 2002) (a “statement, devoid of any reopened that same day, Dkt. No. 9. reference to specific findings or recommendations to which [the plaintiff] objected and why, and unsupported by legal On February 23, 2026, Magistrate Judge Lovric denied authority, was not sufficient to preserve” a claim); Petersen, Plaintiff's IFP motion as incomplete. Dkt. No. 10. After 2 F. Supp. 3d at 228-29 & n.6 (collecting cases). “When Plaintiff filed an amended motion to proceed IFP on March performing such a ‘clear error’ review, ‘the court need only 9, 2023. Dkt. No. 11, Magistrate Judge Lovric again denied satisfy itself that there is no clear error on the face of the v. Comm'r of Soc. Sec., No. 21-cv-1138, 2023 WL 2552452, Judge Lovric explained that while Plaintiff indicated that her at *1 (N.D.N.Y. Mar. 17, 2023) (quoting Canady v. Comm'r claim was brought in part pursuant to 18 U.S.C. § 2261(a), of Soc. Sec., No. 17-cv-367, 2017 WL 5484663, at *1 n.1 that “is a criminal statute and does not ‘confer a private (N.D.N.Y. Nov. 14, 2017)). right of action on Plaintiff.’ ” Id. (quoting Flores v. KW Call Center Services, 26-cv-0122, 2026 WL 1481648, at *3 *2 “[I]n a pro se case, the court must view the submissions (N.D.N.Y. May 27, 2026). And, to the extent that Plaintiff by a more lenient standard than that accorded to ‘formal asserts a claim pursuant to the Fair Debt Collection Practices pleadings drafted by lawyers.’ ” Govan v. Campbell, 289 Act, 15 U.S.C. § 1692 (“FDCPA”), Magistrate Judge Lovric F. Supp. 2d 289, 295 (N.D.N.Y. 2003) (quoting Haines found that the Complaint “fails to allege facts plausibly v. Kerner, 404 U.S. 519, 520 (1972)) (additional citations suggesting that (1) Plaintiff is a person who was the object omitted). The Second Circuit has held that courts are of efforts to collect a consumer debt, (2) Defendants are obligated to “make reasonable allowances to protect pro se debt collectors, or (3) that Defendants engaged in an act or litigants” from inadvertently forfeiting legal rights merely omission in violation of the FDCPA.” Id. at 7 (citing Komatsu because they lack a legal education. Id. (quoting Traguth v. v. Urban Pathways, Inc., 22-CV-9080, 2023 WL 419699, at Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). That said, “even a *9 (S.D.N.Y. Jan. 26, 2023)). As a result, Magistrate Judge pro se party's objections to a Report and Recommendation Lovric also recommended that, to the extent that Plaintiff had must be specific and clearly aimed at particular findings in any remaining state law claims, this Court decline to exercise the magistrate's proposal[.]” Machicote v. Ercole, No. 06- supplemental jurisdiction over such claims. Id. at 7-8. cv-13320, 2011 WL 3809920, at *2, (S.D.N.Y. Aug. 25, 2011) (citation omitted); accord Caldwell v. Petros, No. 22-cv-567, Finally, Magistrate Judge Lovric recommended that this 2022 WL 16918287, at *1 (N.D.N.Y. Nov. 14, 2022). After Court not grant leave to amend as to Plaintiff's claims pursuant appropriate review, “the court may accept, reject, or modify, to 18 U.S.C. § 2261. Id. at 9. But regarding Plaintiff's claims in whole or in part, the findings or recommendations made by pursuant to the FDCPA, Magistrate Judge Lovric found that the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). “it is not clear whether a better pleading would permit Plaintiff to assert a cognizable claim pursuant to the FDCPA” and thus recommended leave to amend out of deference to Plaintiff's III. DISCUSSION pro se status. Id. After review, the Court finds that Plaintiff's objections identify no error in Magistrate Judge Lovric's findings or *3 After review, the Court finds no error in the Report- recommendations. See generally Dkt. No. 16.2 Accordingly, Recommendation, except as to the finding that a better because Plaintiff has not raised any properly preserved pleading might state a claim as to the FDCPA. The Court objection to the Report-Recommendation, the Court reviews finds no indication in the Complaint that Plaintiff's allegations the Report-Recommendation for clear error. See Petersen, 2 against Defendants involve any debt, debt collectors, or F. Supp. 3d at 228-29; Caldwell, 2022 WL 16918287, at *1. debt collection practices. See generally Dkt. No. 1. Together with the finding that Plaintiff's Complaint is frivolous and Magistrate Judge Lovric first recommended that this Court nonsensical, that weighs heavily in favor of concluding that dismiss the Complaint as frivolous pursuant to 28 U.S.C. § any opportunity to amend would be futile. The Court therefore 1915(e)(2)(B)(i). Dkt. No. 15 at 5-6. Even after construing dismisses the Complaint in its entirety without leave to the Complaint liberally in deference to Plaintiff's pro se amend. status, Magistrate Judge Lovric found that “Plaintiff's claims are precisely the type of fanciful or delusional allegations that warrant dismissal under 28 U.S.C. § 1915(e)(2)(B)(i) IV. CONCLUSION as factually frivolous.” Id. at 6 (citing Gladney v. Pendleton Accordingly, the Court hereby Corr. Facility, 302 F.3d 773, 774 (7th Cir. 2002) and Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990)). ORDERS that the Report-Recommendation, Dkt. No. 15, is ADOPTED except as to its recommendation that Plaintiff be In the alternative, Magistrate Judge Lovric also recommended granted leave to amend her claims pursuant to 15 U.S.C. § that the Court dismiss the Complaint for failure to state 1692; and the Court further DISMISSED without prejudice and without leave to Tabular or graphical material not displayable at this time. amend; and the Court further Tabular or graphical material not displayable at this time. ORDERS that the Clerk serve a copy of this Order on all parties in accordance with the Local Rules. Tabular or graphical material not displayable at this time. Tabular or graphical material not displayable at this time. IT IS SO ORDERED. Tabular or graphical material not displayable at this time. All Citations Tabular or graphical material not displayable at this time. Slip Copy, 2026 WL 2606630 Footnotes 1 Citations to court documents utilize the pagination generated by CM/ECF, the Court's electronic filing system. 2 In her submission, Plaintiff simply states that she objects to Judge Lovric's “most recent order.” Id. at 1. Plaintiff then proceeds to introduce new factual allegations that appear only tangentially related to her Complaint, as well as a recitation of what appears to be law related to federal appellate jurisdiction. See id. at 2-3. End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.