Bascom v. The Brooklyn Hospital

Filing 5

MEMORANDUM & ORDER. Plaintiff's motions for leave to file (ECF No. 1 ) and to proceed in forma pauperis (ECF No. 3 ) are granted for the purpose of this Memorandum and Order only. Plaintiff's 2 complaint is dismissed pursuant to the in forma pauperis statute for failure to state a claim. See 28 U.S.C. § 1915(e)(2)(B). In light of Bascom's pro se status, the Court will permit him to file an amended complaint within 30 days of service of this Mem orandum and Order. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d cir. 2000). The request for appointment of counsel is denied. The Court certifies 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 purpose of an appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962). Ordered by Judge Sandra L. Townes on 5/29/2015. Copy mailed to pro se plaintiff. (Barrett, C)

CLERK'S OFFICE
U.S. DISTRICT COURT E.DN.y,

* JUN 12015 *

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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EGLON BASCOM,

II
I
MEMORANDUM & ORDER

Plaintiff,
15-CV-2256 (SLT)(LB)

-againstTHE BROOKLYN HOSPITAL,
Defendant.
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TOWNES, United States District Judge:

Plaintiff Eglon Bascom, proceeding pro Se, filed an application to proceed against "The
Brooklyn Hospital" on April 21, 2015.1 For the reasons set forth below, Bascom's motion for
leave to file is granted and the action is dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B).
BACKGROUND
A. Litigation History
Bascom has a long filing history in this district. 2 Proceeding pro se and informa
pauperis, he has filed at least a dozen unsuccessful actions against Brookdale Hospital. All of
these cases arose from the same facts. Bascom completed one year of medical residency training
at Brookdale Hospital in 1999, but the hospital declined to certify that he completed the program
satisfactorily. Bascom then filed actions alleging that Brookdale Hospital and its employees
harassed him, discriminated against him, and retaliated against him on the basis of his race,
religion, and national origin. He also filed actions under 42 U.S.C. § 1981.
Eventually, Judge Allyne R. Ross enjoined Bascom "from filing any new informa
pauperis action against Brookdale Hospital or related to his prior residency at Brookdale
Bascom also filed a motion for leave to proceed in forma pauperis. (ECF No. 3.) That
application is granted.
2

A more thorough recounting of Bascom's filings appears in this Court's order dated September
30 5 2014, in Bascom v. The Brooklyn Hospital, 14-CV-5703-SLT-LB.

Hospital in this Court without first obtaining leave of Court." Bascom v. Brookdale Hospital,
No. 10-CV-3378-ARR-LB (ECF No. 10). Despite this injunction, Bascom has continued to file
actions related to his medical training. Most recently, however, Bascom filed an action against
The Brooklyn Hospital, which this Court found was not barred by the above-noted filing
injunction. This Court dismissed that case pursuant to 28 U.S.C. § 1915(e)(2)(B) for failure to
state a claim and frivolousness and warned Bascom against continuing to file frivolous,
malicious, or vexations actions in this Court. See Bascom v. The Brooklyn Hospital, 1 4-CV5703-SLT-LB (ECF No. 5).
B. The Instant Action
Here, Bascom alleges that he has successfully completed two years of medical residency
training, first at Brookdale Hospital and then at Cabrini Medical Center. He alleges that he was
fired for "racially motivated" reasons. Sometime around July 1, 2014, Bascom applied to
continue his residency training at The Brooklyn Hospital. Although The Brooklyn Hospital
denied Bascom's application citing a lack of funding, Bascom alleges that funding either is
available or could be made available for his position. He also alleges that The Brooklyn Hospital
admitted "[o]ther [rjesident physicians that have successfully completed two years of residency
training." (Compi. 1, ECF No. 2.) Bascom invokes Title VII and seeks damages and injunctive
relief.
Because Bascom now sues The Brooklyn Hospital regarding an application he filed for
that hospital's residency program in July 2014, the Court finds that the instant action does not fit
within the 2010 filing injunction noted above. But like his previous action against The Brooklyn
Hospital, this action fails to state a claim and must be dismissed pursuant to 28 U.S.C. §
191 5(e)(2)(B).

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LEGAL STANDARD
A complaint must plead "enough facts to state a claim to relief that is plausible on its
face." Bell All. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citation omitted). Although a complaint's allegations are assumed to be true, this tenet
"is inapplicable to legal conclusions." Id.
Courts must read pro se filings liberally and interpret them "to raise the strongest
arguments that they suggest." Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (citation and
internal quotation marks omitted). Nevertheless, 28 U.S.C. § 1915 requires courts to dismiss a
case filed in forma pauperis at any time if the court determines that "the action. . . fails to state a
claim on which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).
DISCUSSION
Title VII provides that "[i]t shall be an unlawful employment practice for an employer.
to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any
individual. . . because of such individual's race, color, religion, sex, or national origin." 42
U.S.C. § 2000e-2(a)(1). Aprimafacie case of employment discrimination requires proof that:
"(1) plaintiff is a member of a protected class; (2) plaintiff was qualified for his or her position;
(3) plaintiff was subjected to an adverse employment action; and (4) the adverse employment
action took place under circumstances giving a rise to an inference of discrimination based on
plaintiffs membership in the protected class." Henry v. NYC Health & Hosp. Corp., 18 F. Supp.
3d 396 9 403-04 (S.D.N.Y. Mar. 10, 2014) (citations and internal quotation marks omitted).
Although Title VII plaintiffs "need not plead a prima facie case, the elements of a prima facie

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case do 'provide an outline of what is necessary to render [a plaintiff employment
discrimination] claims for relief plausible." Munoz-Nagel v. Guess, Inc., No. 12-CV-1312 ER,
2013 WL 1809772, at *4 (S.D.N.Y. Apr. 30, 2013) (alteration in original) (citation omitted).
"Thus, courts consider these elements in determining whether there is sufficient factual matter in
the complaint which, if true, gives Defendant a fair notice of Plaintiffs claim and the grounds on
which it rests." Henry, 18 F. Supp. 3d at 404 (citation and quotation marks omitted).
Here, Bascom has not pleaded facts amounting to a plausible discrimination claim.
Although he alleges that his termination from two previous residency programs "appeared
racially motivated," he does not allege that The Brooklyn Hospital's denial of his application
was a race-based decision. 3 And while he alleges that other applicants who have completed two
years of residency training were allowed to complete the training program, he fails to provide
any factual allegations to support an inference of discrimination. For example, he does not
allege that the admitted applicants were of a different race. See Norville v. Staten Island Univ.
Hosp., 196 F.3d 89, 95 (2d Cir. 1999) ("A plaintiff may support an inference of race
discrimination by demonstrating that similarly situated employees of a different race were treated
more favorably."). The "sine qua non" of a Title VII discrimination claim is that "the
discrimination must be because of [a protected characteristic]." Patane v. Clark, 508 F.3d 106,
112 (2d Cir. 2007) (citation omitted). Bascom's conclusory allegations of disparate treatment as
compared to an unspecified class of other applicants fail to "nudge[] [his] claims across the line
from conceivable to plausible." See Twombly, 550 U.S. at 570.

Although Bascom does not plead his membership in a protected class, his previous filings with
this Court state that he is "Black" and of Guyanese origin. See Bascom v. Fried, 07-cv-677-NGALC (Compi. ¶ 7, ECF No. 1). Nonetheless, his complaint in this action fails for additional
reasons.

IN

CONCLUSION
Plaintiff's motions for leave to file (ECF No. 1) and to proceed in forma pauperis (ECF
No. 3) are granted for the purpose of this Memorandum and Order only. Plaintiff's complaint is
dismissed pursuant to the informapauperis statute for failure to state a claim. See 28 U.S.C. §
1915(e)(2)(B). In light of Bascom's pro se status, the Court will permit him to file an amended
complaint within 30 days of service of this Memorandum and Order. See Cuoco v. Moritsugu,
222 F.3d 99, 112 (2d cir. 2000). The request for appointment of counsel is denied.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken
in good faith, and therefore informa pauperis status is denied for purpose of an appeal.
Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

SO ORDERED.
/s/ Sandra L. Townes
SANDRA L. TOWNES
United States District Judge

Dated: 74E.40q
Brooklynew York 1

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