Quick v. Garcia et al

Filing 7

MEMORANDUM AND ORDER, The Amended Complaint fails to correct the deficiencies of the original Complaint. Accordingly, this action is dismissed with prejudice pursuant to 28 U.S.C. § 1915(e) (2) (B) (ii). The Clerk of Court is respectfully reques ted to enter judgment, send copies of this Memorandum and Order, Judgment and appeals packet to the plaintiff, and close this case. 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). Ordered by Judge Kiyo A. Matsumoto on 10/14/2016. (Layne, Monique)

FILED

IN CLERK'S OFFICE
US DISTRICT COURT E.D.N.V. _ . _

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

*

*DOCKE"f & ~~LE

OCT 1 4 2016

-----------------------------------B~OOKLYN

OFFICE

DENIS QUICK,
NOT FOR PUBLICATION
Plaintiff,
MEMORANDUM AND ORDER

-against-

16-CV-2646 (KAM) (LB)

KATHRYN GARCIA, NORMAN MARON, and
THE CITY OF NEW YORK,
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,

By Order dated July 5, 2016, the court granted

plaintiff's request to proceed in forma pauperis pursuant to 28
U.S.C.

§

1915 but dismissed the complaint for failure to state a

claim, with leave to replead within thirty (30) days.
4.)

(ECF No.

On September 9, 2016, after receiving an extension of time

to file, plaintiff timely filed an amended complaint.
6, Amended Complaint ("Am. Compl.") .)

(ECF No.

The Amended Complaint is

filed on two forms provided by the Eastern District of New York
for pro se plaintiffs: on one form plaintiff alleges
discrimination in employment, and on another form he alleges
deprivation of constitutional rights pursuant to 42
1983.

u.s.c.

§

The submissions are docketed together and are

collectively treated as the Amended Complaint.

For the reasons

set forth below, the Amended Complaint fails to cure the
deficiencies in the original Complaint and therefore is
dismissed pursuant to 28

u.s.c.

§

1915(e) (2) (B) (ii).

The original Complaint purported to raise claims
against two New York City employees pursuant to Title I of the
Americans with Disabilities Act of 1990 ("ADA") and 42 U.S.C.
1983 ("section 1983") .

§

The Court dismissed the claims against

"Commissioner Kathryn Garcia" and "Medical Director Norman
Maron" because these individuals cannot be held liable in their
individual capacities for alleged violations of the ADA and the
Complaint failed to allege plaintiff was disabled under the ADA
or that he suffered an adverse employment action on account of
his disability.
The Amended Complaint adds the City of New York as a
defendant (along with Garcia and Maron), but this addition does
not cure the defective complaint.

Plaintiff merely repeats the

factual allegations from the original Complaint.
5.)

(ECF No. 6 at

As in the original Complaint, the Amended Complaint does

not allege that plaintiff is disabled within the meaning of the
ADA or that the loss of his Line of Duty Injury ("LODI") status
constituted an adverse employment action.

See, e.g., Dechberry

v. New York City Fire Dep't, 124 F. Supp. 3d 131, 151 (E.D.N.Y.
2015}

("Without any factual specificity as to the alleged

disability claimed and the major life activities affected, the

2

Complaint fails to plead that plaintiff was disabled."); Enunons

v. City Univ. of New York, 715 F. Supp. 2d 394, 409 {E.D.N.Y.
2010}

{plaintiff failed to plead disability because complaint

did not properly "allege any substantial physical limitations").
Thus, the Amended Complaint fails to state a claim under Title I
of the ADA.
The second half of the Amended Complaint alleges a
"due process" violation pursuant to § 1983.

Specifically,

plaintiff alleges that Dr. Maron and the City of New York
violated "[plaintiff's] right to be represented at any
admin(i)strative decision making process."

{ECF No. 6-1 at 4.)

Plaintiff alleged that he "was denied authorizations to be
treated for [his) injury under [his) LODI, Line of Duty Injury
status."

(Id. at 5.)

The court liberally construes the Amended

Complaint to allege a procedural due process claim.
"In order to maintain a section 1983 action, two
essential elements must be present:

{1} the conduct complained

of must have been committed by a person acting under color of
state law; and (2) the conduct complained of must have deprived
a person of rights, privileges, or immunities secured by the
Constitution or laws of the United States."
13 F.3d 545, 547 {2d Cir. 1994).

Pitchell v. Callan,

Where a plaintiff alleges

violations of procedural due process "the deprivation by state
action of a constitutionally protected interest in 'life,

3

liberty, or property' is not in itself unconstitutional; what is
unconstitutional is the deprivation of such an interest without

due process of law."

Reed v. Medford Fire Dep't, Inc., 806 F.

Supp. 2d 594, 609 (E.D.N.Y. 2011}
U.S. 113, 125 (1990}

(citing Zinermon v. Burch, 494

(emphasis in original}}.

Therefore, "[t]o

plead a violation of procedural due process, a plaintiff must
plausibly allege that he was deprived of property without
constitutionally adequate pre- or post-deprivation process."

J.S. v. T'Kach, 714 F.3d 99, 105 (2d Cir. 2013}

v. Rabinowitz, 684 F.3d 53, 62 (2d Cir. 2012)).

(citing Ahlers
"[A] plaintiff

must 'first identify a property right, second show that the
[government] has deprived him of that right, and third show that
the deprivation was effected without due process.'"
(quoting Local 342 v. Town Bd. of Huntington,
(2d Cir. 1994))

Id.

31 F.3d 1191, 1194

(second alteration in original)

(emphasis in

original).
Plaintiff has not alleged that any defendant deprived
him of a constitutional right.

Other than broadly stating on

the form complaint that his "right to be represented" was
violated, plaintiff has alleged no facts identifying the
circumstances by which process was due but not provided.
Accordingly, plaintiff's due process claim fails to provide
"fair notice of what the plaintiff's claim is and the grounds
upon which it rests," and must be dismissed.

4

Jenkins v. St.

Luke's-Roosevelt Hosp. Ctr., No. 09-CV-12, 2009 WL 3682458, at

* 9 ( S. D. N. Y. Oct. 2 9, 2 0 0 9) .
CONCLUSION

The Amended Complaint fails to correct the
deficiencies of the original Complaint.

Accordingly, this

action is dismissed with prejudice pursuant to 28 U.S.C.
1915(e) (2) (B) (ii).

§

The Clerk of Court is respectfully requested

to enter judgment, send copies of this Memorandum and Order,
Judgement and appeals packet to the plaintiff, and close this
case.

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).

SO ORDERED.

Dated: October 14, 2016
Brooklyn, New York

Isl
KIYO A. MATSUMOTO
United States District Judge

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