Cabey v. Atria Senior Living

Filing 8

ORDER granting 7 Motion for Leave to Proceed [i]in forma pauperis[/i] filed by Carlton Cabey, and Order dismissing case if plaintiff fails to file an amended complaint by July 9, 2014. For the reasons provided in the enclosed Order, the court order s plaintiff to file an amended complaint by July 9, 2014 and further orders that, if plaintiff fails to file an amended complaint by July 9, 2014, this action shall be dismissed for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). The clerk of court is respectfully requested to mail a copy of this Order to plaintiff and to note service on the docket. Ordered by Judge Kiyo A. Matsumoto on 6/2/2014. (Alagesan, Deepa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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CARLTON CABEY,

ORDER
13 CV 3612 (KAM)

Plaintiff,
-vATRIA SENIOR LIVING,
Defendant.
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MATSUMOTO, United States District Judge.
On June 21, 2013, pro se plaintiff, Carlton Cabey, filed the instant complaint alleging
violations under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et
seq.; and the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”). By order
dated February 26, 2014, plaintiff was granted thirty (30) days to file an amended complaint and
to file an amended and completed in forma pauperis (IFP) application, or pay the $400.00 filing
fee. Plaintiff was advised that if he failed to submit an amended complaint and completed IFP
application, or pay the filing fee, the Court would dismiss the action. On March 24, 2014,
plaintiff submitted a completed IFP application. Accordingly, plaintiff’s request to proceed in
forma pauperis pursuant to 28 U.S.C. § 1915 is granted.
Plaintiff has failed to file an amended complaint as directed by the Court. However, in
support of his application to proceed in forma pauperis, plaintiff annexes two handwritten pages
in which he states that he underwent two surgeries and returned to work before he was properly
healed. See Letter in Support of Motion to Proceed IFP [ECF No. 7]. Although this two page
statement may be in response to Question 9 of plaintiff’s application for in forma pauperis status,
the Court, in deference to plaintiff’s pro se status, will liberally construe this statement in

plaintiff’s favor as brought in support of his ADA claim, and grant him a final opportunity to
submit an amended complaint by July 9, 2014. If plaintiff fails to file the amended complaint by
July 9, 2014, the instant action shall be dismissed. 28 U.S.C. § 1915(e)(2)(B)(ii).
Plaintiff is informed that an amended complaint does not simply add to the first
complaint. Once an amended complaint is filed, it completely replaces the original. Therefore, it
is important that plaintiff includes in the amended complaint all the necessary information that
was contained in the original complaint and that supports his claims. Plaintiff’s amended
complaint must be captioned as an “AMENDED COMPLAINT” and bear the same docket
number as this Order.
Plaintiff should refer to the Court’s memorandum and order dated February 26, 2014,
familiarity with which is presumed, which explains how plaintiff may establish a prima facie
case of discrimination under Title VII and the ADA. In addition, plaintiff is informed that he
must allege specific facts giving rise to an inference that he experienced an adverse employment
action based on factors prohibited by Title VII or the ADA.

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Conclusion
All further proceedings shall be stayed until July 9, 2014 for plaintiff to comply with this
Order. If plaintiff fails to file an amended complaint, a judgment dismissing the complaint shall
be entered. 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 purpose of
an appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The clerk of court is
respectfully requested to mail a copy of this Order to plaintiff and to note service on the docket.
SO ORDERED.

/s/
KIYO A. MATSUMOTO
United States District Judge

Dated:

Brooklyn, New York
June 2, 2014

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