Dudley v. New York City Housing

Filing 6

MEMORANDUM DECISION AND ORDER, The Court grants pltff's 2 Motion for Leave to Proceed in forma pauperis pursuant to 28 USC sec. 1915(a) solely for the purpose of this Order. Accordingly, pltff's complaint 1 is dismissed, without prejud ice, for failure to state a claim on which relief may be granted under 28 USC sec. 1915(e)(2)(B)(ii). Pltff's 5 Motion to appoint counsel is denied as moot. The Court certifies pursuant to 28 USC sec. 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 of an appeal. (Ordered by Judge Brian M. Cogan on 3/4/2013) c/m with unpublished decisions by chambers. (Galeano, Sonia)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

-----------------------------------------------------B"R"O,QkYN OFFICE
GALVIN DUDLEY,
Plaintiff,

MEMORANDUM
DECISION AND ORDER
13 Civ. 0722 (BMC)(LB)

-againstNEW YORK CITY HOUSING AUTHORITY,
Defendant.
----------------------------------------------------------- X

COGAN, District Judge.
1

On February 4, 2013, plaintiff Galvin Dudley, a frequent plaintiff in this Court, filed this

prose complaint pursuant to Title VII of the Civil Rights Act of 1964. The Court grants
plaintiffs request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a) solely for the
purpose of this Order. For the reasons discussed below, the complaint is dismissed.

BACKGROUND
Plaintiff worked for defendant for a period of three months and alleges that his
employment was terminated without cause. Plaintiff asserts a claim for discrimination based on
gender. He filed a charge of discrimination with the New York State Division of Human Rights
("NYSDHR") on or about September 21,2012. Plaintiff attached a copy on his NYSDHR
complaint form to his complaint in this action. Plaintiff claims that he filed a charge of
discrimination with the Equal Employment Opportunity Commission ("EEOC") at some point
less than 60 days prior to his filing of the complaint in this action, but he has not specified that

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Over the past several years, plaintiff has brought one other prose case in this Court, Dudley v. Brooklvn Pub.
09-cv-542, as well as three lawsuits where he, and others, were represented by counsel. Dudley v.
Reynolds, No. 12-cv-5541; Dudley v. Cain, No. 11-cv-2745; and Dudley v. New York Citv, No. 02-cv-6070.

~.No.

date on which he filed the EEOC charge or attached the EEOC charge to his complaint. Further,
plaintiff's complaint acknowledges that the EEOC has not issued him a right-to-sue letter.
DISCUSSION
Under 28 U.S.C. § 1915(e)(2)(B), a district court shall dismiss an in forma pauperis
action where it is satisfied 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."
At the pleadings stage of the proceeding, the Court must assume the truth of"all wellpleaded, nonconclusory factual allegations" in the complaint. Kiebel v. Royal Dutch Petroleum
Co., 621 F.3d Ill, 124 (2d Cir. 20IO)(citing Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937

(2009)). A complaint must plead sufficient facts to "state a claim to relief that is plausible on its
face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955 (2007).
It is axiomatic that prose complaints are held to less stringent standards than pleadings
drafted by attorneys and the Court is required to read the plaintiffs prose complaint liberally and
interpret it as raising the strongest arguments it suggests. Erickson v. Pardus, 551 U.S. 89, 94,
127 S. Ct. 2197 (2007); Sealed Plaintiffv. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008).
However, ''the degree of solicitude" afforded prose plaintiffs "may be lessened where the
particular pro se litigant is experienced in litigation and familiar with the procedural setting
presented." Tracy v. Freshwater, 623 F.3d 90, 102 (2d Cir. 2010).
A plaintiff claiming employment discrimination pursuant to Title VII must pursue
administrative procedures before commencing a lawsuit. Specifically, "[a]s a precondition to
filing a Title VII claim in federal court, a plaintiff must first pursue available administrative
remedies and file a timely complaint with the EEOC." Deravin v. Kerik, 335 F.3d 195,200 (2d

2

Cir. 2003). Once a charge is filed with the EEOC, the agency must investigate the charge,
initiate an action, or dismiss the charge.
If a charge filed with the Commission ... is dismissed by the Commission, or if
within one hundred and eighty days from the filing of such charge ... the
Commission has not filed a civil action under this section ... , the Commission
. . . shall so notify the person aggrieved and within ninety days after the giving of
such notice a civil action may be brought ... by the person claiming to be
aggrieved ....
42 U.S.C. § 2000e-5(t)(l ). This notification is called a right-to-sue letter and is a prerequisite to
bringing a Title VII suit in federal court. McPherson v. New York City Dep't ofEduc., 457 F.3d
211,214 (2d Cir. 2006). See also Legnani v. Alitalia Linee Aeree Italiane, S.P.A., 274 F.3d 683,
686 (2d Cir. 2001). The Second Circuit has consistently held that, "exhaustion of administrative
remedies through the EEOC stands as an essential element of Title VII's statutory scheme, and
one with which defendants are entitled to insist that plaintiffs comply." Francis v. City of New
York, 235 F.3d 763, 768 (2d Cir. 2000) (citations and internal quotation marks omitted).
This administrative exhaustion requirement applies to prose plaintiffs, just like any other
plaintiff. See Kahari v. Salvation Army, No. 08-CV-102, 2008 WL 268760, at *2 (E.D.N.Y. Jan.
30, 2008) (dismissing a prose Title VII complaint for failure to exhaust administrative remedies
before the EEOC). Moreover, courts in this District have ruled that a prose plaintiffs·complaint
may be dismissed for failure to state a claim on which relief may be granted under 28 U.S.C. §
1915(e )(2)(B)(ii) where the plaintiff had not exhausted administrative remedies. Id.
Here, the face of plaintiffs complaint acknowledges that he has not received a right-tosue letter from the EEOC. Consequently, his complaint in this Court is premature and must be
dismissed for failure to state a claim. Plaintiff's complaint is dismissed without prejudice.
Should he receive a right-to-sue letter from the EEOC, plaintiff may file a timely complaint in
federal court.

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..

CONCLUSION
Accordingly, plaintiff's complaint [1] is dismissed, without prejudice, for failure to state

a claim on which relief may be granted under 28 U.S.C. § 1915(e)(2)(B)(ii). Plaintiff's motion
to appoint counsel [5] is denied as moot. The Court certifies pursuant to 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 of an appeal. Coppedge v. United States, 369 U.S. 438, 444-45,

82 S. Ct. 917, 920·21 (1962).
SO ORDERED.

U.S.D.~
Dated: Brooklyn, New York
March 4, 2013

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