Taylor v. Keen

Filing 14

ORDER granting 10 Motion to Dismiss for Failure to State a Claim. For the reasons set forth in the attached Memorandum and Order, IT IS HEREBY ORDERED that the motion to dismiss is granted. The Clerk of the Court shall enter judgment accordingly and close the case. SO ORDERED. Ordered by Judge Joseph F. Bianco on 9/5/2012. (O'Neil, Jacquelyn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 11-CV-5221 (JFB)(ARL)
_____________________

KAREEM B. TAYLOR,
Plaintiff,
VERSUS

DR. W. HUBERT KEEN, IN HIS OFFICIAL CAPACITY,
Defendant.
___________________
MEMORANDUM AND ORDER
September 5, 2012
___________________

JOSEPH F. BIANCO, District Judge:
Pro se plaintiff Kareem B. Taylor
(“Taylor” or “plaintiff”) brings this action
pursuant to 42 U.S.C. § 1983 (“Section
1983”) against Dr. W. Hubert Keen (“Dr.
Keen” or “defendant”), alleging that his
rights were violated pursuant to the First
Amendment of the United States
Constitution. Plaintiff seeks a declaratory
judgment that the defendant acted in
violation of the Constitution. Specifically,
plaintiff asserts that, while a nursing student
at the State University of New York,
Farmingdale State College, he was
dismissed from the nursing program for
making unethical statements regarding
patients from foreign countries, as well as
for insubordination. Plaintiff denies making
these statements, but attempts to bring this
lawsuit against Dr. Keen (who is the
President of the College) for an alleged First

Amendment violation in connection with his
dismissal from the nursing program.
Defendant moved to dismiss the
complaint. For the reasons set forth below,
defendant’s motion is granted in its entirety.
Plaintiff has failed to allege any personal
involvement by Dr. Keen, and Section 1983
cannot be imposed on Dr. Keen as a
supervisor through the doctrine of
respondeat superior. Moreover, although
leave to re-plead has not been requested, the
Court declines in its discretion to give
plaintiff an opportunity to re-plead because,
even if plaintiff alleged personal
involvement by Dr. Keen, his First
Amendment claim fails as a matter of law
because plaintiff denies engaging in the

speech that is the subject of the claim. Thus,
any leave to re-plead would be futile.1
I.
A.

more likely to have TB.” (Id. ¶ 12; Compl.
Ex. 1.) The Counseling Record indicates
that Professor Thompson told plaintiff that if
he was ill he should not perform patient care
and that, as a nurse, it was his obligation to
care for patients regardless of their cultural
or ethnic background or physical illness.
(Id.; Compl. Ex. 1.) Plaintiff was advised
that, as a student, he could not refuse a
patient assignment and that his statement
about foreign patients was considered
unethical. (Id.; Compl. Ex. 1.) Professor
Thompson stated that plaintiff made this
statement to her three times in the presence
of other students. (Id.; Compl. Ex. 1.)
Further, the Counseling Record completed
by Professor Thompson states that:

BACKGROUND
Factual Background

The following facts are taken from the
complaint and are not finding of fact by the
Court. Instead, the Court assumes these
facts to be true for purposes of deciding the
pending motion to dismiss and will construe
them in a light most favorable to plaintiff,
the non-moving party.
Taylor was a student enrolled in the
Licensed Practical Nurse Program (the
“Nursing Program”) at the State University
of New York, Farmingdale State College
(“SUNY Farmingdale”). (Compl. ¶ 2.) Dr.
Keen was, at all relevant times, President of
SUNY Farmingdale. (Id. ¶¶ 3, 10.)

Kareem’s insubordination in not
leaving the unit in a timely fashion
when asked warrants a clinical
failure for the day.
He has
demonstrated that he is unsafe in the
clinical setting by remaining on the
unit and possibly exposing patients
to a potential health hazard since he
stated that he may be sick. His
statement regarding not wanting to
care for particular types of patients
and sleeping during clinical hours
violates school policy and results in a
clinical failure for the LPN 102
course and failure to continue in the
nursing program.

While plaintiff was attending SUNY
Farmingdale’s Nursing Program, plaintiff
was accused by Professor Rewa Thompson
(“Professor
Thompson”)
of
making
unethical statements during clinical, and as a
result, was dismissed from the Nursing
Program at SUNY Farmingdale. (Id. ¶¶ 1113.) Specifically, Professor Thompson’s
review of plaintiff on his Department of
Nursing Counseling Record for the Course
LPN 102H (NUMC, Mother/Baby Unit)
dated June 14, 2011 (the “Counseling
Record”), indicated that plaintiff requested
that he not be assigned any “foreign
patients” for the day because his patient
from South America the other day gave him
“something” and that “foreign patients were

(Id. ¶ 14; Compl. Ex. 1.) As a result of this
alleged conduct, plaintiff was dismissed
from the nursing program at SUNY
Farmingdale. (Id. ¶ 13.)
Taylor filed a grievance on June 16,
2011, with the Nursing Department’s
Admissions and Academic Standards
Committee (the “Nursing Committee”) and
provided them with a letter that gave
plaintiff’s account of what happened on the

1

The complaint notes that plaintiff also has filed two
lawsuits in New York State court relating to the
circumstances surrounding his dismissal from the
nursing program. (Compl. ¶ 2.) Of course, the
dismissal of his federal claim in this lawsuit does not
affect his ability to pursue any state claim that he
may have in state court.
2

day in question. (Id. ¶¶ 15-16; Compl. Exs.
2, 4.) Plaintiff’s appeal was heard by the
Nursing Committee on June 21, 2011, and
on June 27, 2011, it rendered a decision
supporting Professor Thompson’s decision
to give plaintiff a failing grade for the
clinical course requirements. (Id. ¶ 17;
Compl. Ex. 3.)

briefing schedule, defendant filed his motion
on January 13, 2012. Plaintiff filed his
opposition on February 1, 2012. Defendant
filed his reply on March 1, 2012. The Court
has fully considered the submissions of the
parties.

On June 29, 2011, plaintiff filed an
appeal of the Nursing Committee’s decision
to the Admission and Academic Standards
Appeals
Committee
(the
“Appeals
Committee”). (Id. ¶ 18; Compl. Ex. 5.) The
Appeals Committee reviewed plaintiff’s
appeal on July 12, 2011, and did not permit
plaintiff to attend the review. (Id. ¶ 19.)
The Appeals Committee supported Professor
Thompson’s decision and informed plaintiff
with a letter dated July 14, 2011. (Id. ¶ 20;
Compl. Ex. 7.)

When a Court reviews a motion to
dismiss for failure to state a claim for which
relief can be granted, it must accept the
factual allegations set forth in the complaint
as true and draw all reasonable inferences in
favor of the plaintiff. See Cleveland v.
Caplaw Enters., 448 F.3d 518, 521 (2d Cir.
2006); Nechis v. Oxford Health Plans, Inc.,
421 F.3d 96, 100 (2d Cir. 2005). “In order
to survive a motion to dismiss under Rule
12(b)(6), a complaint must allege a plausible
set of facts sufficient ‘to raise a right to
relief above the speculative level.’”
Operating Local 649 Annuity Trust Fund v.
Smith Barney Fund Mgmt. LLC, 595 F.3d
86, 91 (2d Cir. 2010) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555
(2007)). This standard does not require
“heightened fact pleading of specifics, but
only enough facts to state a claim to relief
that is plausible on its face.” Twombly, 550
U.S. at 570.

II.

Plaintiff denies making the statements
that were the basis for the failing grade and
dismissal from the nursing program, while
simultaneously alleging that his First
Amendment Right to Free Speech was
violated. (Id. ¶¶ 22, 23, 24.) As plaintiff
states, “I deny ever making any statemtns
that Professor Thompson accuse[d] me of
making on June 14, 2011 that relates to
being unethical.” (Id. ¶ 22.)
B.

STANDARD OF REVIEW

The Supreme Court clarified the
appropriate pleading standard in Ashcroft v.
Iqbal, setting forth a two-pronged approach
for courts deciding a motion to dismiss. 556
U.S. 662, 129 S. Ct. 1937 (2009). The
Court instructed district courts to first
“identify[ ] pleadings that, because they are
no more than conclusions, are not entitled to
the assumption of truth.” Id. at 1950.
Although “legal conclusions can provide the
framework of a complaint, they must be
supported by factual allegations.” Id.
Second, if a complaint contains “wellpleaded factual allegations, a court should
assume their veracity and then determine

Procedural History

Plaintiff filed his complaint on October
19, 2011 with a motion for leave to proceed
in forma pauperis. This Court granted
plaintiff’s motion on November 7, 2011.
Defendant requested a pre-motion
conference in anticipation of his motion to
dismiss the complaint. By Order dated
December 13, 2011, the Court waived the
pre-motion conference requirement and set a
briefing schedule. In accordance with the
3

to be, and that have been, filed with the
Securities and Exchange Commission, and
(5) facts of which judicial notice may
properly be taken under Rule 201 of the
Federal Rules of Evidence.” In re Merrill
Lynch & Co., 273 F. Supp. 2d 351, 356-57
(S.D.N.Y. 2003) (internal citations omitted),
aff’d in part and reversed in part on other
grounds sub nom., Lentell v. Merrill Lynch
& Co., 396 F.3d 161 (2d Cir. 2005), cert.
denied, 546 U.S. 935 (2005); see also
Cortec Indus., Inc. v. Sum Holding L.P., 949
F.2d 42, 48 (2d Cir. 1991)(“[T]he district
court . . . could have viewed [the
documents] on the motion to dismiss
because there was undisputed notice to
plaintiffs of their contents and they were
integral to plaintiffs’ claim.”); Brodeur v.
City of New York, No. 04 Civ. 1859 (JG),
2005 U.S. Dist. LEXIS 10865, at *9-10
(E.D.N.Y. May 13, 2005) (court could
consider documents within the public
domain on a Rule 12(b)(6) motion to
dismiss)

whether they plausibly give rise to an
entitlement to relief.” Id. “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. The
plausibility standard is not akin to a
‘probability requirement,’ but it asks for
more than a sheer possibility that a
defendant has acted unlawfully.” Id. at 1949
(internal citations omitted) (quoting and
citing Twombly, 550 U.S. at 556-57).
Where, as here, the plaintiff is
proceeding pro se, “[c]ourts are obliged to
construe the [plaintiff’s] pleadings . . .
liberally.” McCluskey v. N.Y. State Unified
Court Sys., No. 10-CV-2144 (JFB)(ETB),
2010 U.S. Dist. LEXIS 69835, 2010 WL
2558624, at *8 (E.D.N.Y. June 17, 2010)
(citing Sealed Plaintiff v. Sealed Defendant,
537 F.3d 185, 191 (2d Cir. 2008) and
McEachin v. McGuinnis, 357 F.3d 197, 200
(2d Cir. 2004)). Nonetheless, even though
the Court construes a pro se complaint
liberally, the complaint must still “state a
claim to relief that is plausible on its face” to
survive a motion to dismiss. Mancuso v.
Hynes, 379 F. App’x 60, 61 (2d Cir. 2010)
(quoting Iqbal, 129 S. Ct. at 1949); see also
Harris v. Mills, 572 F.3d 66, 72 (2d Cir.
2009) (applying Twombly and Iqbal to pro
se complaint).

III.

DISCUSSION

Defendant Dr. Keen argues that
plaintiff’s complaint should be dismissed
because Section 1983 liability cannot be
imposed on Dr. Keen, as a supervisor,
through the doctrine of respondeat superior.
(Def.’s Br. at 6-7.) Plaintiff counters that
“Dr. Keen is President of Farmingdale and
as President he is responsible for the
employees of Farmingdale, especially those
that are employed as faculty members of
Farmingdale.” (Pl.’s Opp. Br. at 3.) For the
reasons set forth infra, this Court agrees
with defendant, and grants defendant’s
motion to dismiss.

The Court notes that in adjudicating this
motion, it is entitled to consider: “(1) facts
alleged in the complaint and documents
attached to it or incorporated in it by
reference, (2) documents ‘integral’ to the
complaint and relied upon in it, even if not
attached or incorporated by reference, (3)
documents or information contained in
defendant’s motion papers if plaintiff has
knowledge or possession of the material and
relied on it in framing the complaint, (4)
public disclosure documents required by law

A.

Legal Standard

To prevail on a claim under Section
1983, a plaintiff must show: (1) the
4

Committee or the Appeals Committee, or
was even aware of their decisions. There is
also no allegation that Dr. Keen created, or
was even aware, of a policy or custom
amounting to a constitutional violation.
Plaintiff indicates nowhere in his complaint
or opposition papers that Dr. Keen had any
involvement in plaintiff’s case, or in any
unconstitutional policies that caused the
injury. Plaintiff’s sole basis for bringing this
action against Dr. Keen is that he is the
President of SUNY Farmingdale. The fact
that Dr. Keen is the President of SUNY
Farmingdale is not sufficient to sustain a
plausible Section 1983 claim against him in
his official capacity as President because it
is well settled that there is no respondeat
superior liability under Section 1983. Sheer
speculation that Dr. Keen (as President of
SUNY Farmingdale) must have known
about plaintiff’s failing grade and dismissal
from the nursing program is insufficient to
survive a motion to dismiss. Accordingly,
plaintiff’s complaint must be dismissed in its
entirety.2
IV. LEAVE TO RE-PLEAD

deprivation of any rights, privileges, or
immunities secured by the Constitution and
its laws; (2) by a person acting under the
color of state law. 42 U.S.C. § 1983.
“Section 1983 itself creates no substantive
rights; it provides only a procedure for
redress for the deprivation of rights
established elsewhere.” Sykes v. James, 13
F.3d 515, 519 (2d Cir. 1993).
“It is well settled in this Circuit that
personal involvement of defendants in
alleged constitutional deprivations is a
prerequisite to an award of damages under
Section 1983.” Wright v. Smith, 21 F.3d 496,
501 (2d Cir. 1994) (citation and quotation
marks omitted). In other words, “supervisor
liability in a § 1983 action depends on a
showing of some personal responsibility,
and cannot rest on respondeat superior.”
Hernandez v. Keane, 341 F.3d 137, 144 (2d
Cir. 2003). Supervisor liability can be shown
in one or more of the following ways: “(1)
actual
direct
participation
in
the
constitutional violation, (2) failure to
remedy a wrong after being informed
through a report or appeal, (3) creation of a
policy or custom that sanctioned conduct
amounting to a constitutional violation, or
allowing such a policy or custom to
continue, (4) grossly negligent supervision
of subordinates who committed a violation,
or (5) failure to act on information
indicating that unconstitutional acts were
occurring.” Id. at 145 (citation omitted).
B.

Defendant argues that plaintiff should
not be given leave to re-plead because leave
2

Defendant also argues, in the alternative, that he is
entitled to qualified immunity. (Def.’s Br. at 2-5.)
Plaintiff does not oppose this argument in his
opposition papers. The Court notes that, because the
defendant is sued only in his official capacity (not his
individual capacity), qualified immunity is
inapplicable to the Section 1983 claim. See Lore v.
City of Syracuse, 670 F.3d 127, 164 (2d Cir. 2012)
(“with respect to an official-capacity claim, qualified
immunity is simply not a defense”); Jackler v.
Byrne, 658 F.3d 225, 244 (2d Cir. 2011) (“[B]ecause
a claim asserted against a government official in his
official capacity is essentially a claim against the
governmental entity itself, the defense of qualified
immunity, which may be available to individual
defendants as they are sued in their individual
capacities, is not applicable to claims against them in
their official capacities.”). However, the Court has
already determined that the complaint must be
dismissed on the other ground asserted by defendant.

Application

Despite plaintiff’s statement that Dr.
Keen is responsible for the employees of
SUNY Farmingdale, plaintiff has failed to
make any allegation that Dr. Keen was
personally responsible for the alleged
unconstitutional violation.
There is no
allegation in plaintiff’s complaint that Dr.
Keen was a member of either the Nursing
5

even if plaintiff alleged personal
involvement by Dr. Keen in the decision
making process that led to his failing grade
in the clinical and termination from the
Nursing Program, his claim would still fail
as a matter of law against Dr. Keen, either in
his official or individual capacity (as well as
against any individuals involved in the
decision making) because plaintiff denies
having engaged in the speech which he
attempts to argue is protected by the First
Amendment. Thus, having reviewed the
compliant and plaintiff’s opposition papers,
the Court declines in its discretion to
provide plaintiff with an opportunity to replead because he cannot correct the defects
in the federal claims.

to re-plead is only appropriate when, based
on the first complaint, it is conceivable that
plaintiff can state a cause of action, and
plaintiff in this case cannot assert a plausible
Section 1983 claim. Plaintiff does not
address this issue in his opposition, and does
not request leave to re-plead.
Although plaintiff has not requested an
opportunity to amend his complaint, the
Court has independently considered whether
to give plaintiff an opportunity to re-plead
and concludes that leave to re-plead is
unwarranted because any attempt to amend
this complaint would be futile. The Second
Circuit has emphasized that
A pro se complaint is to be read
liberally. Certainly the court should
not dismiss without granting leave
to amend at least once when a
liberal reading of the complaint
gives any indication that a valid
claim might be stated.

Plaintiff attempts to assert a First
Amendment claim based upon unethical
statements he was accused of making. (See
Compl. ¶ 23 (“I bring this compliant [sic] to
the United States District Court because I
believe that the defendant has violated my
First Amendment Right to Freedom of
Speech.”); id. at ¶ 25 (“I bring this
compliant [sic] to the court because I believe
such unethical statements that I was accused
of making are protected by the United States
Constitution.”).) However, in the complaint,
plaintiff also emphatically denies having
made the unethical statement that led to his
discipline. (See Compl. ¶ 22 (“I deny ever
making any of the statements that Professor
Thompson accuse[d] me of making on June
14, 2011 that relates to being unethical.”);
id. at ¶ 24 (“I never made the unethical
statements that I was accused of. I was
however disciplined by SUNY Farmingdale
State College because they believe I made
unethical
statements.”
(emphasis
in
original)).) Plaintiff reiterates this point in
his opposition papers. See Pl.’s Opp. at 10
(“I did not make the statements Professor
Thompson accused me of making.”).
Plaintiff then summarizes his claim as

Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d
Cir. 2000) (quotations and citations
omitted). Under Rule 15(a) of the Federal
Rules of Civil Procedure, the “court should
freely give leave [to amend] when justice so
requires.” Fed. R. Civ. P. 15(a). However,
leave to re-plead can be denied where it is
clear that no amendments can cure the
pleading deficiencies and any attempt to
replead would be futile. See Cuoco, 222
F.3d at 112 (“The problem with [plaintiff’s]
cause[] of action is substantive; better
pleading will not cure it. Repleading would
thus be futile. Such a futile request to
replead should be denied.”); see also
Hayden v. Cnty. of Nassau, 180 F.3d 42, 53
(2d Cir. 1999) (holding that if a plaintiff
cannot demonstrate he is able to amend his
complaint “in a manner which would
survive dismissal, opportunity to replead is
rightfully denied”). As discussed below,
6

Superintendent of the School District]
transferred [plaintiff] on the basis of a
mistaken belief that she spoke out in a
manner that we assume for the sake of
argument would have been constitutionally
protected fails to establish a violation of
[plaintiff’s] First Amendment rights. An
asserted ‘bad motive’ on the part of [the
Superintendent] cannot of itself form the
basis of a First Amendment violation.”);
Fogarty v. Boles, 121 F.3d 886, 887 (3d Cir.
1997) (“We conclude that plaintiff fails to
meet his burden of proving a violation of his
free speech rights when he denies
contacting, attempting to contact, or having
any intention of contacting the press.
Because of the absence of protected speech,
we will affirm the grant of summary
judgment in favor of the principal.”);
Barkoo v. Melby, 901 F.2d 613, 619 (7th
Cir. 1990) (“[Plaintiff] not only admits, she
insists that she did not provide any
information to the press. [Plaintiff] provides
no authority for the proposition that her free
speech rights are deprived in violation of
§ 1983 when the speech at issue admittedly
never occurred.”).

follows:
“Professor Thompson initially
violated my First Amendment Rights of the
United States Constitution.
Professor
Thompson disciplined me for making
unethical statements that I did not make but
[i]f I did they would be protected by the
First Amendment of the United States
Constitution.” (Id.) This proposed First
Amendment claim, even if allegations of
personal involvement by Dr. Keen were
added in an amended complaint, simply
cannot survive a motion to dismiss. A
plaintiff cannot deny the statements at issue
were made, and simultaneously claim that
his First Amendment rights were violated
due to punishment for the speech that he
asserts never occurred. In other words, a
First Amendment claim cannot exist as a
matter of law when the claim is based upon
speech that plaintiff asserts never took place.
Numerous circuit courts have reached
the same conclusion under analogous
circumstances. See, e.g., Spencer v. Cain,
No. 08-31096, 2010 WL 8750607, at *3 (5th
Cir. Aug. 6, 2010) (“Insofar as one can
liberally construe [plaintiff’s] amended
complaint to raise a First Amendment claim
over the ‘dictators’ statement, we note that a
plaintiff cannot assert a First Amendment
violation over a statement that he denies
making.”); Wasson v. Sonoma Cnty. Junior
Coll., 203 F.3d 659, 662 (9th Cir. 2000)
(“This First Amendment case is unusual
because [plaintiff] asserts that the
defendants retaliated against her for speech
that she insists she did not make. Accepting
[plaintiff’s] allegations as true, she thus has
not engaged in any relevant constitutionally
protected speech.”), cert denied, 531 U.S.
927; Jones v. Collins, 132 F.3d 1048, 1054
(5th Cir. 1998) (“[Plaintiff] contends that
she never spoke out – positively or
negatively – regarding the prospect of
placing the alternative education program on
the Dunbar campus. The fact that [the

In sum, because plaintiff denies
engaging in the speech that would be the
subject of his First Amendment claim,
granting plaintiff leave to re-plead would be
futile. Thus, dismissal without leave to replead is warranted.
V. CONCLUSION
For the foregoing reasons, defendant’s
motion to dismiss plaintiff’s complaint,
pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure, is granted.
Moreover, in its discretion, the Court does
not believe leave to re-plead is warranted.
Accordingly, the Clerk of the Court shall
enter judgment accordingly and close the
case.
7

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;
therefore, in forma pauperis status is denied
for purposes of an appeal. See Coppedge v.
United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.

______________________
JOSEPH F. BIANCO
United States District Judge

Dated:

September 5, 2012
Central Islip, NY
***

Plaintiff is proceeding pro se. Defendant is
being represented by Lori L. Pack of the
Office of the Attorney General, 300 Motor
Parkway, Suite 205, Hauppauge, NY 11788.

8