Jackson v. Duane Reade

Filing 7

MEMORANDUM & ORDER -- For the reasons set forth in the attached Memorandum & Order, the 6 Amended Complaint is dismissed without prejudice. 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 denies in forma pauperis status for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of Court is directed to enter judgment and to close this case. The Clerk of Court is further directed to mail a copy of this Order to Plaintiff. SEE ATTACHED ORDER. Ordered by Judge Diane Gujarati on 2/7/2024. (AC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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Narvin J. Jackson,
Plaintiff,
-against-

MEMORANDUM & ORDER
22-CV-05377 (DG) (LB)

Duane Reade,
Defendant.
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DIANE GUJARATI, United States District Judge:
Plaintiff Narvin J. Jackson, proceeding pro se, commenced this action against Defendant
Duane Reade pursuant to the Age Discrimination in Employment Act of 1967 (“ADEA”), 29
U.S.C. §§ 621-634. See generally Complaint (“Compl.”), ECF No. 1. By Order dated July 12,
2023 (the “July 12, 2023 Order”), the Court granted Plaintiff’s Motion for Leave to Proceed in
forma pauperis, ECF No. 2; dismissed the Complaint for failure to state a claim on which relief
may be granted; and granted Plaintiff leave to file an Amended Complaint by August 11, 2023.
See generally July 12, 2023 Order. The July 12, 2023 Order, inter alia, (1) set forth that the
Complaint, even liberally construed, did not allege facts to support a claim under the ADEA; (2)
specifically noted that “the Complaint does not allege any facts about Plaintiff’s age;” and (3)
informed Plaintiff that if he failed to file an Amended Complaint by August 11, 2023 or filed one
that did not comply with the July 12, 2023 Order, judgment dismissing this action shall be
entered. See generally July 12, 2023 Order. Plaintiff thereafter requested an extension, see ECF
No. 4, which request was granted, see ECF No. 5, and Plaintiff timely filed the Amended
Complaint (“Am. Compl.”), ECF No. 6, on September 11, 2023.

As set forth below, because the Amended Complaint fails to cure the deficiencies in
Plaintiff’s Complaint and fails to plausibly state a claim, the Amended Complaint must be
dismissed.
STANDARD OF REVIEW
To survive dismissal for failure to state a claim, a complaint must plead “enough facts to
state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). A claim is plausible “when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Matson v.
Bd. of Educ. of City Sch. Dist. of N.Y., 631 F.3d 57, 63 (2d Cir. 2011) (quoting Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009)).
In reviewing a pro se complaint, a court must be mindful that the plaintiff’s pleadings
“must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)); see also,
e.g., Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (noting that, “[e]ven after Twombly,” courts
“remain obligated to construe a pro se complaint liberally”). Nonetheless, where, as here, a pro
se plaintiff is proceeding in forma pauperis, a district court must dismiss the plaintiff’s complaint
if it “(i) is 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.” 28 U.S.C.
§ 1915(e)(2)(B). In determining whether to dismiss, the court must “accept all ‘well-pleaded
factual allegations’ in the complaint as true.” Lynch v. City of N.Y., 952 F.3d 67, 74-75 (2d Cir.
2020) (quoting Iqbal, 556 U.S. at 679); see also Leybinsky v. Iannacone, No. 97-CV-05238,
2000 WL 863957, at *1 (E.D.N.Y. June 21, 2000) (“For purposes of considering a dismissal
under 28 U.S.C. § 1915(e)(2), the allegations in the complaint must be taken as true.”).

2

DISCUSSION
The Amended Complaint, like the original Complaint, is brought pursuant to the ADEA
and alleges retaliation. See Am. Compl. at 3-4; Compl. at 3, 6. 1 The Amended Complaint does
not, however, allege facts to support a claim under the ADEA. See 29 U.S.C. § 623. Notably,
although the Amended Complaint contains certain allegations regarding Plaintiff’s work
environment that were not contained in the original Complaint, see Am. Compl. at 8-9, the
Amended Complaint, like the original Complaint, does not allege any facts about age –
Plaintiff’s or anyone else’s, see generally Am. Compl.
Because the Amended Complaint, even liberally construed, fails to plausibly state a
claim, the Amended Complaint, ECF No. 6, is dismissed without prejudice.
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 denies in forma pauperis status for the purpose of
an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of Court is
directed to enter judgment and to close this case. The Clerk of Court is further directed to mail a
copy of this Order to Plaintiff.
SO ORDERED.
/s/ Diane Gujarati
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DIANE GUJARATI
United States District Judge
Dated: February 7, 2024
Brooklyn, New York

1

In citing to Plaintiff’s filings, the Court refers to the page numbers generated by the Court’s
electronic case filing system (“ECF”).
3