Quick v. Garcia et al

Filing 4

MEMORANDUM AND ORDER: The Court grants plaintiff's request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. For the reasons stated in the attached Order, the complaint is dismissed without prejudice. Plaintiff is granted 30 days leave to file an amended complaint that must comply with Rule 8(a) of the Federal Rules of Civil Procedure. 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. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of the Court is requested to serve a copy of this Memorandum and Order on the plaintiff and note service on the docket. Ordered by Judge Kiyo A. Matsumoto on 7/5/2016. (McNulty, John)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------X
DENIS QUICK,

NOT FOR PUBLICATION

Plaintiff,

MEMORANDUM AND ORDER

-against-

16-CV-2646 (KAM)(LB)

KATHRYN GARCIA and NORMAN MARON,
Defendants.
------------------------------------X
MATSUMOTO, United States District Judge:
Plaintiff Denis Quick, proceeding pro se, filed this
employment discrimination action on May 23, 2016.
Complaint.)

(ECF No. 1,

The court grants plaintiff’s application to proceed

in forma pauperis pursuant to 28 U.S.C. § 1915.

For the reasons

stated below, this action is dismissed with leave to file an
amended complaint within thirty (30) days of this Order.
BACKGROUND
The Complaint is filed on a form provided by the
Eastern District of New York for pro se plaintiffs alleging
discrimination in employment.

The caption names “Commissioner

Kathryn Garcia” and “Medical Director Norman Maron” as
defendants, but does not identify their roles in the alleged
discrimination.

(Compl. at 1.)

Plaintiff’s place of employment

is listed as “NYC Dept of Sanitation.”

(Compl. at 2.)

Plaintiff checks a box on the Complaint designating this as an
employment discrimination action brought pursuant to: (1) the

Americans with Disabilities Act of 1990; (2) 42 U.S.C. § 1983;
and (3) “Article 78.”

(Compl. at 3-4.)

In the “Statement of

Claim” section, plaintiff alleges “Failure to accommodate my
disability” and writes in “due process.”

(Id. at 4.)

Plaintiff

also checks a box on the Complaint for discrimination on the
basis of “disability or perceived disability” and specifies
“shoulder/hand injury.”

(Id. at 5.)

In the Complaint’s statement of facts section,
plaintiff alleges that he suffered an injury at work on February
18, 2015 and was placed on Line of Duty Injury (“LODI”) status.
(Compl. at 5.)

Plaintiff further states: “At or about

October/November, my status was changed.

I was denied medical

treatment and forced to use my private insurance.

The

department said that I was not injured by my fall from the
garbage truck.”

(Id.)

Plaintiff asserts that he is entitled to

back pay and states that “medical treatment under LODI is
better.”

(Compl. at 6.)
Plaintiff states that he filed a charge with the Equal

Employment Opportunity Commission (“EEOC”) on February 2, 2016,
and that he received a Notice of Right to Sue letter on April
20, 2016.

(Id. at 6.)

An EEOC “Dismissal and Notice of Rights”

statement dated April 20, 2016 is attached to the Complaint.
(Id. at 8.)

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STANDARD OF REVIEW
Pursuant to 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 is “(i) 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.”

In reviewing the complaint, the court is mindful

that a court must construe a pro se litigant’s pleadings
liberally, see Chavis v. Chappius, 618 F.3d 162, 171 (2d Cir.
2010), especially when those pleadings allege civil rights
violations.

See Erickson v. Pardus, 551 U.S. 89, 94 (2007);

Sealed Plaintiff v. Sealed Defendant # 1, 537 F.3d 185, 191-93
(2d Cir. 2008).
Courts must read pro se complaints with “special
solicitude” and interpret them to raise the “strongest arguments
that they suggest,” Triestman v. Federal Bureau of Prisons, 470
F.3d 471, 474-76 (2d Cir. 2006) (internal quotation marks
omitted), however, a complaint “must plead enough facts to state
a claim to relief that is plausible on its face.”
Corp. v. Twombly, 550 U.S. 544, 570 (2007).

Bell Atl.

“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).
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Although

“detailed factual allegations” are not required, “[a] pleading
that offers ‘labels and conclusions’ or ‘a formulaic recitation
of the elements of a cause of action will not do.’”
(quoting Twombly, 550 U.S. at 555).

Id.

Similarly, a complaint is

insufficient to state a claim “if it tenders ‘naked
assertion[s]’ devoid of ‘further factual enhancement.’”

Id.

(quoting Twombly, 550 U.S. at 557).
DISCUSSION
I.

Employment Discrimination Claim
Title I of the ADA makes it unlawful for an employer,

employment agency, labor organization, or joint labor-management
committee to discriminate against a qualified individual on the
basis of disability in regard to terms, conditions, and
privileges of employment.

See 42 U.S.C. §§ 12111(2), 12112.

In

order to pursue a claim in federal court for employment
discrimination under the ADA, a plaintiff is required to first
file a charge of discrimination with the EEOC or a state or
local agency charged with investigating claims of discrimination
in employment, and receive a right-to-sue notice.

See Riddle v.

Citigroup, 449 Fed. Appx. 66, 69 (2d Cir. 2011) (“As a predicate
to filing suit under [the ADA], a private plaintiff must first
file a timely charge with the EEOC.”).

Title I of the ADA does

not permit the imposition of liability on individuals in their
individual or representative capacities.
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Castro v. City of New

York, 24 F. Supp. 3d 250, 259 (E.D.N.Y. 2014) (collecting
cases).
A prima facie case of discrimination pursuant to the
ADA requires a plaintiff to show that: (1) the employer is
subject to the ADA; (2) the plaintiff was disabled within the
meaning of the ADA; (3) the plaintiff was otherwise qualified to
perform the essential functions of the job, with or without
reasonable accommodation; and (4) the plaintiff suffered an
adverse employment action because of the disability.

Brady v.

Wal–Mart Stores, Inc., 531 F.3d 127, 134 (2d Cir. 2008).

“A

plaintiff suffers an adverse employment action when she
experiences a materially adverse change in the terms and
conditions of employment.”

Dechberry v. New York City Fire

Dep't, 124 F. Supp. 3d 131, 147 (E.D.N.Y. 2015) (internal
quotation marks and citation omitted).

Employment actions

“deemed sufficiently disadvantageous to constitute an adverse
employment action include a termination of employment, a
demotion evidenced by a decrease in wage or salary, a less
distinguished title, a material loss of benefits, significantly
diminished material responsibilities, or other indices unique to
a particular situation.”

Beyer v. Cnty. of Nassau, 524 F.3d

160, 163 (2d Cir. 2008) (internal quotation marks and citation
omitted).

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Here, the Complaint fails to state a claim under the
ADA.

The named defendants, “Commissioner Kathryn Garcia” and

“Medical Director Norman Maron,” cannot be held liable in their
individual capacities for alleged violations of the ADA.
Castro, 24 F. Supp. 3d at 259.

See

Plaintiff’s alleged employer,

the City of New York Department of Sanitation, lacks legal
existence and therefore is a non-suable entity.

See, e.g.,

Waheed v. City of New York Gun & License Div., No. 07-CV-179
SJF, 2007 WL 465569, at *2 (E.D.N.Y. Jan. 31, 2007) (dismissing
claims against the City of New York Department of Sanitation as
non-suable entity).

The New York City Charter provides that

“[a]ll actions and proceedings for the recovery of penalties for
the violation of any law shall be brought in the name of the
[C]ity of New York and not that of any agency, except where
otherwise provided by law.”

New York City Charter, Ch. 17, §

396.
In addition, plaintiff has not adequately alleged that
he was discriminated against in employment.

The Complaint

states that plaintiff was injured at work, but does not allege
that plaintiff is disabled within the meaning of the ADA, or
that he is otherwise qualified to perform the essential
functions of his job.

Plaintiff alleges that he lost his LODI

status, but does not allege that this loss qualifies as an
adverse employment action or that his status was changed because
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of a disability.

For these reasons, plaintiff’s claim for

relief pursuant to Title I of the ADA is dismissed for failure
to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B).
II.

Civil Rights Claim
Plaintiff also cites 42 U.S.C. § 1983 as a possible

basis for this court’s jurisdiction.

In order to maintain a

Section 1983 action, a plaintiff must allege two essential
elements.

First, “the conduct complained of must have been

committed by a person acting under color of state law.”
Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994).

Second,

“the conduct complained of must have deprived a person of
rights, privileges or immunities secured by the Constitution or
laws of the United States.”

A plaintiff seeking to recover

Id.

money damages pursuant to Section 1983 must establish that the
named defendant was personally involved in the wrongdoing or
misconduct complained of.

See Farrell v. Burke, 449 F.3d 470,

484 (2d Cir. 2006) (quoting Wright v. Smith, 21 F.3d 496, 501
(2d Cir. 1994)).

Here, plaintiff has not alleged that the

individually-named defendants, “Commissioner Kathryn Garcia” and
“Medical Director Norman Maron,” were personally involved in
alleged violations of his constitutional rights or the decision
to change his LODI status or re-categorize the cause of his
injury.

Nor has plaintiff alleged how the change in his status

violated his constitutional rights.
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Accordingly, the Complaint

also fails to state a claim under Section 1983 and must be
dismissed.
CONCLUSION
For the reasons set forth above, the Complaint is
dismissed without prejudice for failure to state a claim
pursuant to 28 U.S.C. § 1915(e)(2)(B).

In light of plaintiff’s

pro se status, the court grants plaintiff thirty (30) days leave
to file an amended complaint.

Plaintiff is advised that the

amended complaint completely replaces the original complaint.
The amended complaint must be captioned, “Amended Complaint,”
and shall bear the same docket number as this order.

No summons

shall issue at this time, and all further proceedings shall be
stayed for 30 days.

If plaintiff fails to file an amended

complaint within 30 days, final judgment shall enter.

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.
United States, 369 U.S. 438, 444-45 (1962).

See Coppedge v.
The Clerk of Court

is directed to serve a copy of this Memorandum and Order on the
plaintiff and note service on the docket.
SO ORDERED.
Dated: July 5, 2016
Brooklyn, New York

_______/s/___________________
KIYO A. MATSUMOTO
United States District Judge
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