Smith v. Barry

Filing 5

ORDER granting 2 Motion for Leave to Proceed in forma pauperis. For the reasons set forth above, Plaintiff's application to proceed in forma pauperis is granted, but the Complaint is sua sponte dismissed with prejudice unless Plaintiff files an Amended Complaint against a proper defendant in accordance with this Order within thirty (30) days from the date that this Order is served upon him. 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 in forma pauperis status is denied for the purpose of any appeal. So Ordered by Judge Joanna Seybert on 5/24/2012. C/M (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
WALLACE RICHARD SMITH,
Plaintiff,
-against-

ORDER
12-CV-2063(JS)(AKT)

KEVIN J. BARRY, District Director,
NY STATE OFFICES OF PARKS COMM.,
Defendants.
----------------------------------X
APPEARANCES:
For Plaintiff:
Wallace Richard Smith, Pro Se
808 Shady Oaks Drive
Elgin, IL 60120
For Defendants:

No Appearances

SEYBERT, District Judge:
Before the Court is the Complaint of pro se plaintiff
Wallace Richard Smith (“Plaintiff”) filed pursuant to the Age
Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-634
(“ADEA") and the Americans with Disabilities Act of 1990, 42 U.S.C.
§§ 12112-12117 (“ADA") against the defendants Kevin J. Barry and
the “NY State Office of Parks Comm.” (together, the “Defendants”),
accompanied by an application to proceed in forma pauperis.
review

of

the

Plaintiff’s

declaration

in

support

of

Upon
his

application, the Court finds that his financial status qualifies
him to proceed without prepayment of the $350.00 filing fee.
U.S.C. § 1914(a).

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Accordingly, Plaintiff’s request for permission

to proceed in forma pauperis is GRANTED.

However, for the reasons

that follow, the Plaintiff’s Complaint is sua sponte DISMISSED

pursuant to 28 U.S.C. §§ 1915(e)(2)(b)(i)-(iii).
BACKGROUND
Plaintiff’s

Complaint,

submitted

on

the

Court’s

employment discrimination complaint form, is difficult to discern
because Plaintiff has inserted handwritten notations throughout the
Complaint that are largely unintelligible. For example, on the top
of the first page of the Complaint, to the right of the caption,
Plaintiff has written:
I have a disability to my rt. leg.
I have
passed the lifeguard rehire test. I provided
medical proof I was capable of working. The
park has accomdations [sic], 2 pool[s], Zacks
Bay. I have worked as a pool lifeguard here
in IL. This has been a continuous corrupt act
and conspiracy (RICO). I want the Court to
rule I can take the lifeguard test and not the
rehire and back pay.
Compl. at page 1. Plaintiff has checked the boxes on the Complaint
form to allege that his claims arise under the ADEA and the ADA.1
Id.

Plaintiff has also checked the boxes on the Complaint form to

allege that he complains of the following discriminatory conduct:
“failure

to

hire,

termination

of

my

employment,

failure

to

accommodate my disability, unequal terms and conditions of my
employment, and other acts - allowing people who are not authorized
to view my personal information!”

1

Plaintiff claims that these

Though Plaintiff has checked the box to allege age
discrimination, he has not provided his age or date of birth.
With regard to his disability discrimination claim, plaintiff
alleges that he has an unspecified “disability to my rt. leg.”
Compl. at ¶ 7
2

alleged discriminatory acts occurred on or about May 28, 2003.
Plaintiff’s statement of claim, is alleged in its entirety as
follows:
In 1983 I passed the JB/RM Rehire test. I was
awarded back my Boatswain position back and RM
3 Supervisor test without any problem. [On]
May 29, 2004 I provided medical proff [sic] I
could work and passing [sic] the exam. Many
able body failed. In addittion [sic] I
observed Joe Scalice punching in the time
clock for Tim Hirten. Hirten was not yet back
from playing Pro Basketball in Europ [sic].
He was LT @ Zachs Back. Others witnessed the
behavior. I know the names. I beat many able
body men who failed. I cannot work. I demand
my position back if I pass the old rehire
test. I have been requesting one since 1983.
I pass & do not get hired. I went to see Dr.
Heckerel MD.
Compl. at ¶ 8.

Plaintiff alleges that he filed an administrative

charge of discrimination with the New York State Division of Human
Rights

and

with

the

(“EEOC”) in May 1994.

Equal

Employment

Compl. at ¶ 9.

Opportunity

Commission

Annexed to the Complaint is

a copy of the EEOC’s Dismissal and Notice of Rights, dated January
26, 2012, signed by Kevin J. Berry, District Director.
DISCUSSION
I.

In Forma Pauperis
Having reviewed Plaintiff’s declarations in support of

his applications to proceed in forma pauperis, the Court finds that
he is qualified to commence this action without prepayment of the
filing fees. See 28 U.S.C. § 1915(a)(1). Accordingly, Plaintiff’s
request for permission to proceed in forma pauperis is GRANTED.
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II.

The Court’s Screening
A district court is required to dismiss an in forma

pauperis complaint if the action is frivolous or malicious; fails
to state a claim on which relief may be granted; or seeks monetary
relief against a defendant who is immune from such relief.

See 28

U.S.C. § 1915(e)(2)(B)(i-iii); Abbas v. Dixon, 480 F.3d 636, 639
(2d Cir. 2007).

The Court is required to dismiss the action as

soon as it makes such a determination.

28 U.S.C. § 1915A(a).

It is axiomatic that pro se complaints are held to less
stringent standards than pleadings drafted by attorneys and the
Court

is

required

liberally,

to

read

the

plaintiff’s

pro

se

complaint

Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197,

167 L. Ed. 2d 1081 (2007) (quoting Estelle v. Gamble, 429 U.S. 97,
106, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976)); Chavis v. Chappius,
618 F.3d 162 (2d Cir. 2010), and to construe them “‘to raise the
strongest arguments that [they] suggest[].’”

Chavis, 618 F.3d at

170 (quoting Harris v. City of New York, 607 F.3d 18, 24 (2d Cir.
2010)).

Moreover, at the pleadings stage of the proceeding, the

Court must assume the truth of “all well-pleaded, nonconclusory
factual allegations” in the complaint.

Kiobel v. Royal Dutch

Petroleum Co., 621 F.3d 111, 124 (2d Cir. 2010) (citing Ashcroft v.
Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949-50, 173 L. Ed. 2d
868(2009)); see, also Jackson v. Birmingham Board of Education, 544
U.S. 167, 171, 125 S. Ct. 1497, 161 L. Ed. 2d 361 (2005).

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The Federal Rules of Civil Procedure Rule 8 requires that
pleadings present a “short and plain statement of the claim showing
that the pleader is entitled to relief.”

Swierkiewicz v. Sorema,

N.A., 534 U.S. 506, 512, 122 S. Ct. 992, 152 L. Ed. 2d 1 (2002).
Pleadings must give “fair notice of what the plaintiff’s claim is
and the grounds upon which it rests” to allow the opposing party to
identify the alleged wrongful conduct and prepare a case.

Dura

Pharms., Inc. v. Broudo, 544 U.S. 336, 346, 125 S. Ct. 1627, 161 L.
Ed. 2d 577 (2005) (quoting Conley v. Gibson, 335 U.S. 41, 47
(1957), overruled in part on other grounds by Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 127 S. Ct. 1995, 167 L. Ed. 2d 929
(2007)).
A district court may sua sponte dismiss a complaint that
fails to comply with Rule 8.
(2d Cir. 1995).

Simmons v. Abruzzo, 49 F.3d 83, 86

However, “[d]ismissal . . . is usually reserved

for those cases in which the complaint is so confused, ambiguous,
vague, or otherwise unintelligible that its true substance, if any,
is well disguised.”

Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir.

1988).
Having reviewed Plaintiff’s Complaint, the Court finds
that

it

fails

to

state

a

plausible

claim

against

a

proper

defendant. Even liberally read, see Hughes v. Rowe, 449 U.S. 5, 9,
101 S. Ct. 173, 176, 66 L. Ed. 163 (1980), Plaintiff’s pro se
Complaint does not meet the pleading requirements of Rule 8 nor

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does it satisfy the standard set forth by the United States Supreme
Court.

Plaintiff does not identify his claimed disability or his

date of birth, nor does he provide any factual allegations such
that the Court could liberally construe a plausible disability
discrimination and/or age discrimination claim.

Further, because

it is clear that Plaintiff was not employed by the EEOC, but,
rather,

is

apparently

dissatisfied

with

the

outcome

of

his

administrative charge, Plaintiff has also failed to allege a
plausible disability discrimination and/or age discrimination claim
against Defendant Barry.

Moreover, Plaintiff’s claims against the

EEOC’s District Director are dismissed for the additional reason
that the Court lacks subject matter jurisdiction to adjudicate such
claims.

Sovereign immunity clearly bars Plaintiff’s ADEA and ADA

claims against the EEOC.

See Burton v. US Equal Employment

Opportunity Commission, No. 11-CV-4074(SLT)(LB), 2011 WL 4344154,
at

*3

(E.D.N.Y.

Sept.

12,

2011)

(sua

sponte

dismissing

discrimination claim against the EEOC pursuant to 28 U.S.C. §
1915(e)(2)(B) because it was barred by sovereign immunity); McKoy
v. Potter, No. 08-CV-9428(PKC), 2009 WL 1110692, at * 5 (S.D.N.Y.
Apr. 21, 2009) (“Courts have repeatedly held that the United States
has not waived sovereign immunity for suits against the EEOC based
on the EEOC’s handling of an employment discrimination charge.”)
(citing Baba v. Japan Travel Bureau Int’l, 111 F.3d 2, 6 (2d Cir.
1997) (per curiam) (additional citations omitted); see, also Stone

6

v. NYC Transit, No. 04-CV-4141(NG)(LB), 2005 WL 1593524, at *1
(E.D.N.Y. July 7, 2005) (“[N]either the ADA nor Title VII grants a
waiver of sovereign immunity . . . .).

Similarly, insofar as the

Plaintiff seeks to sue the New York State Office of the Parks
Commissioner, the Eleventh Amendment bars his ADEA and ADA claims
for money damages.

See Draves v. New York State Office of Parks,

Recreation and Historical Preservation, No. 93-CV-1405 (MBM), 1993
WL 435640, at *3 (S.D.N.Y. Oct. 26, 1993) (“Because the immunity
afforded by the Eleventh Amendment extends to state agencies, and
because the New York State Office of Parks is a state agency which
has not consented to suit, plaintiff’s claims against the Office of
Parks are barred.”) (citations omitted); see, also McMillan, III,
v. New York State Board of Elections, 449 F. Appx. 79, 80 (2d Cir.
2011) (affirming dismissal of claims against a state agency as
barred by the Eleventh Amendment).
Because a district court should not dismiss a pro se
complaint 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,” Shomo v. City of N.Y., 579 F.3d 176, 183
(2d Cir. 2009) (citing Branum v. Clark, 927 F.2d 698, 705 (2d Cir.
1991)), Plaintiff is afforded leave to file an Amended Complaint
against a proper defendant in accordance with this Order within
thirty (30) days from the date that this Order is served upon him.
To the best of his ability, Plaintiff must set forth the factual
7

allegations to support his disability and/or age discrimination
claims.

Plaintiff is cautioned that insofar as he has alleged

conduct that allegedly occurred only between 1983 and 2004, his
claims are likely barred by the three-year statutes of limitation
that govern ADA and ADEA claims.

Accordingly, Plaintiff should

include more recent facts, if any, in his Amended Complaint.
Plaintiff is advised that an Amended Complaint does not simply add
to the original Complaint but, rather, completely replaces the
original.

The Amended Complaint must be captioned as an “Amended

Complaint” and bear the same docket number as this Order.
summons shall issue at this time.

No

If Plaintiff fails to file an

Amended Complaint within the time allowed, the Complaint shall be
dismissed, judgment shall enter and the case will be closed.

If

Plaintiff files an Amended Complaint, the Court will review it
pursuant to 28 U.S.C. § 1915A.
CONCLUSION
For the reasons set forth above, Plaintiff’s application
to proceed in forma pauperis is granted, but the Complaint is sua
sponte dismissed with prejudice unless Plaintiff files an Amended
Complaint against a proper defendant in accordance with this Order
within thirty (30) days from the date that this Order is served
upon him.

8

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 in forma pauperis status is denied for the purpose of
any appeal.

See Coppedge v. United States, 369 U.S. 438, 444-45,

82 S. Ct. 917, 8 L. Ed. 2d 21 (1962).

SO ORDERED.
/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
Dated:

May
24 , 2012
Central Islip, New York

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