Ming v. Mitchell et al

Filing 6

Order Dismissing Parties: plaintiff's application to proceed in forma pauperis is granted and the claims are dismissed against ever defendant except Surrey Cooperative Apartments for the reasons stated in the attached order. Ordered by Judge John Gleeson on 9/23/2013. (Merle, Natasha)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

NOT FOR ONLINE PUBLICATION

LEVELLE MING,
Plaintiff,

MEMORANDUM AND ORDER

- against -

13-CV-1414 (JG)

AHIIJAH MITCHELL (Project Site Manager);
ADRIAN (Superintendent); MISS BEVERLY
RICHARDSON; ANDY KING (Bronx City
Councilman); and SURREY CO-OP
APARTMENTS,
Defendants.

JOHN GLEESON, United States District Judge
On March 14, 2013, plaintiff Levelle Ming (“Ming”) filed a pro se complaint pursuant to
Title VII of the Civil Rights Act of 1964, as codified at 42 U.S.C. § § 2000e - 2000e-17 (“Title VII”)
and the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.. By Memorandum and
Order dated July 29, 2013, I dismissed the complaint as to the individual defendants Ahijah Mitchell and
Mr. Adrian and granted Ming 30 days to file an amended complaint. On August 16, 2013, Ming filed an
amended complaint alleging discrimination pursuant to Title VII only.

Ming also adds Beverly

Richardson and Bronx City Councilman Andy King as defendants. For the reasons discussed below, I
grant the application to proceed in forma pauperis and dismiss Ming’s claims against every defendant
except Surrey Cooperative Apartments.
BACKGROUND
Ming was employed at the Surrey Cooperative Apartments in the Bronx as a security
guard. 1 The allegations in the complaint relate to events that occurred during and immediately after
Hurricane Sandy. Ming describes doing safety checks of fallen trees, patrolling buildings, arranging for
1
Ming has filed six prior lawsuits, most of which alleged discrimination in his employment as a security
guard. See Ming v. Veterans Administration, No. 10-cv-4193; Ming v. Prato, No 02-cv-2081; Ming v. Livingston, No. 09-cv2834; Ming v. Pagan, No. 09-cv-4466; Ming v. Pagan, No. 10-cv-4946; Ming v. Bridge Security Servs., No. 10-cv-4463.

sleeping accommodations and food, and various other events during that crisis. Mitchell told him the
Superintendent (Adrian) was upset because he was walking around the buildings. Finally, Ming alleges
as follows:
Before going into another Matter which was brought to my Attention Miss
Mitchell asked me some questions about my Heritage which informed I
was Chinesse[sic]/Black I informed her she was already aware of my
Heritage that’s why you always called me by my last name Ming you
asked me weeks ago and I told you my dad is Chinesse [sic] then Miss
Mitchell said oh yeah that’s right we had that conversation and there
something I wanted to address with you that had happen about a Month
ago or so I asked what she informed me about the security locker room
was Painted, Brand New Tiles (Peel and Stick) was installed I informed
Miss Mitchell Collectively Several people Cleaned, Exterminated, the
locker room due to the Unsafe Conditions and Mold, along with the
Possums, Racoons [sic], Rats, Filth that is inside the locker room and
nobody caring about it we all wanted better conditions so we cleaned it up
Miss Mitchell asked me do I always go around cleaning up locker rooms I
replied I never have been subjected to such nasty locker room or a locker
room with Racoons [sic], Possums, Rats, Mold among other issues in one
room…and some of us was scared to stay or be in there so if it was clean
and safe we would feel safe not intimidated or risk losing our jobs because
your office is totally nothing like our nasty filthy locker room. Miss
Mitchell replied it does look better however permission should have been
requested I replied I requested permission on my daily report sheet.[] Miss
Mitchell has admitted requested my removal from the site based on
installing Tiles etc however she only requested I be removed when she is
completely aware I did not installed tiles, paint exterminate, move
furniture, alone it was a collective action that only I was discipline for
(under Title VII This Is a Unlawful Act on behalf of the employer)
Compl. at 4-5. The United States Equal Employment Opportunity Commission issued a right to sue
letter on February 22, 2013.
STANDARD OF REVIEW
A complaint must plead “enough facts to state a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw a reasonable inference that the defendant
is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although all
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allegations contained in the complaint are assumed true, this tenet is “inapplicable to legal conclusions.”
Id. While pro se complaints must contain sufficient factual allegations to meet the plausibility standard,
see Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), the court reviews the complaint with “special
solicitude” and interprets the allegations to raise the “strongest arguments that they suggest.” Triestman
v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (per curiam); see also Erickson v.
Pardus, 551 U.S. 89, 94 (2007).
Nonetheless, the court must dismiss the complaint of a plaintiff proceeding in forma
pauperis if the complaint “(i) is frivolous or malicious, (ii) fails to state a claim upon which relief may
be granted, or (iii) seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C.
§ 1915(e)(2)(B). If a liberal reading of the pleadings “gives any indication that a valid claim might be
stated,” however, the court must grant leave to amend. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d
Cir. 2000).
DISCUSSION
In the July 29, 2013 Memorandum and Order, I directed Ming to do the best he could to
allege particularized facts supporting his claim that the actions he complained about were based on his
race or disability. Ming gives a more detailed (and rambling) account of various events and
conversations that occurred during his extended shift during Hurricane Sandy in October 2012.
I accept as true Ming’s allegation that Mitchell questioned him regarding his heritage,
Comp. at 4-5, shortly before requesting his termination for “installing Tiles etc.” Id. at 5. The complaint
further alleges that others who were responsible for the installation of the tiles and related work were not
disciplined. Id.
Mindful that the pleading requirements in a Title VII action are “very lenient, even de
minimis,” Brown v. Coach Stores, Inc., 163 F.3d 706, 710 (2d Cir.1998), and that the plaintiff’s

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complaint is to be read liberally, Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996), I find these
allegations sufficient to withstand dismissal at this stage.
Ming has added two individuals as defendants in his amended complaint. As I discussed
in my July 29, 2013 Order Title VII does not provide for individual liability. See Patterson v. Cnty. of
Oneida, 375 F.3d 206, 221 (2d Cir. 2004); Spiegel v. Schulmann, 604 F.3d 72 (2d Cir. 2010). Thus,
Ming’s claims against Beverly Johnson and Bronx City Councilman Andy King 2 must be dismissed on
that ground. Wrighten v. Glowski, 232 F.3d 119 (2d Cir. 2000) (citing Tomka v. Seiler Corp., 66 F.3d
1295, 1313-17 (2d Cir. 1995)), abrogated on other grounds by Burlington Indus., v. Ellerth, 524 U.S.
742 (1998).
CONCLUSION
Accordingly, the application to proceed in forma pauperis is granted. The amended
complaint is dismissed as against all defendants except Surrey Cooperative Apartments. 28 U.S.C. §
1915(e)(2)(B)(ii). I certify pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in
good faith and therefore in forma pauperis status is denied for the purpose of any appeal. Coppedge v.
United States, 369 U.S. 438, 444-45 (1962).
So ordered.

John Gleeson, U.S.D.J.
Dated: September 23, 2013
Brooklyn, New York

2

Individual defendant Ahijah Mitchell was dismissed from the complaint in the July 29, 2013 order.

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