Troccoli v. Target Store # 1108

Filing 10

ORDER: SO ORDERED that plaintiffs second amended complaint is sua spontedismissed in its entirety with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim for relief. The Clerk of the Court shall enter judgment in favor of deft 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. CM to pro se plaintiff. Ordered by Judge Sandra J. Feuerstein on 6/24/2013. (Florio, Lisa)

us
JUN Z 4 Z013 *
* LONG \~:'J., OFFICl

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

----------------------------------------------------)(

,iJ

JARED TROCCOLI,
Plaintiff,

ORDER
13-CV-00627 (SJF)(WDW)

-againstTARGET STORE# 1108,
Defendant

----------------------------------------------------)(
FEUERSTEIN, District Judge:
On January 29, 2013,pro se plaintiff Jared Troccoli ("plaintiff') filed a complaint against
his former employer, Target Store #II 08 ("defendant"), alleging employment discrimination and
retaliation, accompanied by an application to proceed in forma pauperis. By order dated May 13,
2013, plaintiffs application to proceed in forma pauperis was granted, but plaintiffs complaint
was sua sponte dismissed without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) for failure to
state a claim for relief, provided that plaintiff file an amended complaint correcting the pleading
deficiencies set forth in that order on or before June 17, 2013, or the complaint would be deemed
dismissed with prejudice and judgment would be entered in favor of defendant On May 21, 2013,
plaintiff filed what purported to be an amended complaint By order dated June 3, 2013: (I) the
amended complaint was sua sponte dismissed in its entirety without prejudice pursuant to 28
U.S.C. § 1915(e)(2)(B) for failure to state a claim for relief, provided that plaintiff file a second
amended complaint correcting the pleading deficiencies set forth in that order and the May 13,
2013 order on or before June 19, 2013, or the amended complaint would be deemed dismissed with
prejudice and judgment would be entered in favor of defendant; and (2) plaintiff was advised that
since leave to amend may be properly denied, inter alia, for "repeated failure to cure deficiencies
by amendments previously allowed," Rutolo v. City ofNew York, 514 F.3d 184, 191 (2d Cir.
I

2008) (quoting Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 229, 9 L. Ed. 2d 222 (1962)), his
failure to correct the pleading deficiencies set forth in that order and in the May 13, 20 13 order in
any second amended complaint would result in the second amended complaint being dismissed in
its entirety with prejudice and judgment being entered in favor of defendant. On June II, 2013,
plaintiff filed a response to the June 3, 2013 order, which the Court construes to be a second
amended complaint. For the reasons set forth below, the second amended complaint is sua sponte
dismissed in its entirety with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) for failure to state a
claim for relief.

I.

Discussion
In the second amended complaint, plaintiff alleges the following:
"I wish to be compensated for my pain and suffering that I was wrongfully accused
of stealing $243.00 from [defendant] from January to March of2010 and my $1100
I spent on restitution, court fine and probation's year time of$50 weekly
payments[.] I did not steal $243.00 from [defendant] and I was accused of sexual
harassment by [defendant's] employee Melissa J. Bruce by making music for HR
manager Jackie Anthony[.]"
Like the original and amended complaints, the second amended complaint still does not

indicate the nature of the alleged employment discrimination or the statute allegedly violated by
defendant and fails to plead facts supporting any inference that the conduct by defendant of which
plaintiff complains was based on a protected characteristic, i.e., race, color, gender, religion,
national origin, age or disability. Also like the original and amended complaints, the only factual
allegations in the amended complaint are that plaintiff was falsely accused of stealing two hundred
forty-three dollars ($243.00) from defendant and was also accused of committing sexual
harassment for making music for defendant's human resources manager. Since plaintiff has
repeatedly failed to cure the pleading deficiencies set forth in the May 13, 2013 order, for the
2

'

reasons set forth in that order, the amended complaint is dismissed in its entirety with prejudice
pursuant to 28 U.S.C. § 1915(e )(2)(8) for failure to state a claim for relief.

See,~

Drumm v.

SUNY Geneseo College, 486 Fed. Appx. 912, 914 (2d Cir. June 29, 2012) (summary order);
Maldonado v. George Weston Bakeries, 441 Fed. Appx. 808, 808-09 (2d Cir. Dec. 19, 2011)
(summary order) ("[D]ismissal is

* * * appropriate where the plaintiff failed to allege even the

basic elements of a discriminatory action claim."); Brown v. Citv ofNew York, No. 10 Civ. 6491,
2011 WL 2693677, at* 7 (S.D.N.Y. July II, 2011) (dismissing the plaintiff's federal retaliation
claims where the complaint "wholly fail[ ed] to identify any discrimination or sexual harassmentrelated complaint or other 'protected activity' on the part of [the] plaintiff.")

Ill.

Conclusion
For the reasons set forth above, plaintiffs second amended complaint is sua sponte

dismissed in its entirety with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) for failure to state a
claim for relief. The Clerk of the Court shall enter judgment in favor of defendant 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. Coppedge
v. United States, 369 U.S. 438,444-45,82 S. Ct. 917,8 L. Ed.2d 21 (1962).

SO ORDERED.

s/ Sandra J. Feuerstein
Sandra J. Feuerstein
United States District Judge

Dated: June 24, 2013
Central Islip, New York

3