Aquino v. SAG AFTRA

Filing 8

MEMORANDUM & 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 and his application for a Temporary Restraining Order and/or Preli minary Injunction is DENIED. Given that Plaintiff's Amended Complaint fails to allege plausible Section 1983 claims, such claims are sua sponte DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. § 1915(e)(2)(B). Though thin, Plaintiff's AD A claims shall proceed and Plaintiff shall provide Defendants' addresses to the Clerk of the Court within fourteen (14) days of the date of this Memorandum and Order. Upon timely receipt of Defendants' addresses, the Clerk shall provide sum monses, copies of the Amended Complaint, and this Order to the USMS for service upon Defendants forthwith. 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 the purpose of any appeal. So Ordered by Judge Joanna Seybert on 1/25/2016. C/M (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
DARREN DIONE AQUINO,
Plaintiff,
-against-

MEMORANDUM & ORDER
16-CV-0146(JS)(GRB)

SAG AFTRA - the Screen Actors
Guild-American Federation of
Television and Radio Artist,
and all its Affiliates &
Associates; ADAM MOORE, SAG
AFTRA Diversity, in his official
capacity; the SAG AWARDS, JANE
DOE and JOHN DOE Entertainment
Union; Casting Agents, Affiliates
and Associates; and JEN COYNE-HOERLE
Awards Coordinator, SAG Awards,
in her official capacity,
Defendants.
----------------------------------X
APPEARANCES
For Plaintiff:
Darren Dione Aquino, pro se
574 Junard Boulevard
West Hempstead, New York 11552
For Defendants:

No appearances

SEYBERT, District Judge:
Pro se plaintiff Darren Dione Aquino (“Plaintiff” or
“Aquino”) filed a Complaint in this Court on January 8, 2016
against SAG AFTRA - The Screen Actors Guild-American Federation of
Television and Radio Artist, together with an application to
proceed in forma pauperis. On January 13, 2016, Plaintiff filed an
Amended Complaint against SAG AFTRA - The Screen Actors GuildAmerican Federation of Television and Radio Artist and all its
Affiliates & Associates (“SAG”); Adam Moore, SAG AFTRA Diversity,
in his official capacity (“Moore”); the SAG AWARDS (“the Awards”);

JANE DOE and JOHN DOE Entertainment Union (“Union”), Casting
Agents, Affiliates and Associates (“Casting Agents”); and Jen
Coyne-Hoerle

Awards

Coordinator,

SAG

Awards,

in

her

Official

capacity (“Coyne-Hoerle” and collectively, “Defendants”), together
with a request for an Order to Show Cause for the entry of a
Temporary Restraining Order and a Preliminary Injunction. (See Am.
Compl., Docket Entry 6.)
Plaintiff seeks an order compelling Defendants to show
cause why the SAG Awards scheduled for January 30, 2016 should not
“be shut down” unless Defendants: (1) include Union members with
disabilities in the SAG Awards event; (2) implement and/or enforce
the SAG rule requiring 25% of the first 85 union actors cast in a
feature film to be disabled union actors; (3) immediately include
“the mandated Union rule of 25 actors on a television show to be at
least one out of five actors with disabilities”; (4) ensure that at
least 25% of the seating capacity at the SAG Awards is available
and accessible to the disabled; and (5) add a “[c]ategory of
achievement for [d]isabled actors” and announce it at the SAG
Awards.

(See Pl.’s Br., Docket Entry 7-1, at 2-3, 5.)
As noted above, Plaintiff did not pay the filing fee to

commence the instant action.

Rather, accompanying Plaintiff’s

submission is a request to proceed in forma pauperis.
Entry 2.)

(Docket

For the reasons that follow, Plaintiff’s application to

proceed in forma pauperis is GRANTED and the Order to Show Cause
2

seeking a Temporary Restraining Order and a Preliminary Injunction
is DENIED.

Finally, the Amended Complaint is DISMISSED, IN PART,

WITH PREJUDICE.
BACKGROUND
The instant action, though not a model of clarity,
appears to allege, pursuant to the Americans with Disabilities Act,
42 U.S.C. §§ 12101 et seq. and 42 U.S.C. § 1983 that Plaintiff’s
civil rights and Fourteenth Amendment rights have been violated by
Defendants.

(Am. Compl. ¶ 2.1)

More specifically, Plaintiff

alleges that he is an actor and member of “SAG-AFTRA, which is an
American labor union representing over 160,000 film and television
principal and background performers . . . .”

(Am. Compl. at 1.)

Plaintiff

individual

claims

that

he

is

a

qualified

with

a

disability2 (Am. Compl. at 2, 5) who is disadvantaged by SAG
practices concerning the selection of actors for jobs in television
and movie productions (See generally Am. Compl.).
claims

that

he,

along

with

all

disabled

SAG

Plaintiff also
members,

are

disadvantaged and “will be excluded again” at the 22nd Annual SAG
1

The numbered paragraphs to Plaintiff’s Amended Complaint can be
found at ECF pages 5-16.
2

Plaintiff alleges that he suffers from neurological and
physical disabilities including dyslexia which “totally impedes
[his] ability to complete forms, write and process thoughts and
ideas in an organized manner.” Plaintiff also alleges to suffer
“from a severe limp due to pollomyelitis from birth,” as well as
a “deformed knee”, “club left foot”, “scoliosis, asthma, a
partially occluded coronary artery, angina and osteoarthitis.”
(Am. Compl. at 5, and ¶ 1.)
3

Awards on January 30, 2016.
According

to

(Am. Compl. ¶ 32.)

the

Amended

Complaint,

longstanding practice of noncompliance with the ADA.
¶

3.)

For

example,

Plaintiff

claims

that

the

SAG

has

a

(Am. Compl.
on

site

SAG

representative at a job does not enforce a SAG rule of inclusion of
a disabled actor by the production company. (Am. Compl. ¶¶ 15-17.)
In addition, Plaintiff complains that SAG discriminates against
disabled

actors

by

allowing

the

“consistent[]

nondisabled people in disabled roles.”

casting

[of]

(Am. Compl. ¶ 25.)

Plaintiff further claims that “some of the [work] sites were
unaccessible.”

(Am. Compl. ¶ 12.)

Plaintiff also complains that the Annual SAG Awards is
discriminatory to disabled actors.

More specifically, Plaintiff

describes that selection for attendance at the SAG awards is
determined by a lottery and that the lottery drawing is “unfair.”
(Am. Compl. ¶¶ 28-29.)

Plaintiff posits that because the lottery

registration must be completed online, it is unfair to disabled
actors who may be blind or missing both arms.

(Am. Compl. ¶ 29.)

Further, Plaintiff complains that the SAG Awards do not recognize
the achievements of disabled actors in a category of its owns as
they do for other groups, such as Latin or African American
actors.

(Am. Compl. ¶ 35.)

Finally, Plaintiff complains that

because SAG does not maintain a membership list of disabled actors,
it is impossible for SAG to protect their rights and provide such
4

individuals “equal access.”
Notwithstanding

(Am. Compl. ¶ 37.)
his

allegations

of

discriminatory

treatment of disabled actors by the Defendants, Plaintiff alleges
that he has been “able to obtain consistent work as a background
actor” and has appeared “on various shows including Law & Order,
SVU; OZ, Sopranos, Law & Order Criminal Intent; Law & Order; and
various other projects . . . [and] movies including the Siege,
Changing Lanes, and Bad Company.

(Am. Comp. ¶¶ 9, 21.)

However,

Plaintiff claims that he “was the only disabled actor” on these
jobs.

(Am. Compl. ¶ 17.)
In addition, with regard to the SAG Awards, Plaintiff

alleges that he won the lottery in 2010 and received tickets for
himself to attend with two guests.

(Am. Coml. ¶ 28.)

However,

Plaintiff complains that he “was the only disabled individual on
the floor” and was “the token ‘disabled’ table” at the SAG Awards
that year.

(Am. Compl. ¶ 28.)
DISCUSSION

I. In Forma Pauperis Application
Upon review of Plaintiff’s declaration in support of his
application to proceed in forma pauperis, the Court finds that
Plaintiff is qualified to commence this action without prepayment
of the filing fees.

See 28 U.S.C. § 1915(a)(1).

Therefore,

Plaintiff’s request to proceed in forma pauperis is GRANTED.

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II.

Application of 28 U.S.C. § 1915
Section 1915 of Title 28 requires a district court to

dismiss an in forma pauperis complaint if the action is frivolous
or malicious, fails to state a claim upon 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).

The

Court is required to dismiss the action as soon as it makes such a
determination.
Courts are obliged to construe the pleadings of a pro se
plaintiff liberally. See Sealed Plaintiff v. Sealed Defendant, 537
F.3d 185, 191 (2d Cir. 2008); McEachin v. McGuinnis, 357 F.3d 197,
200 (2d Cir. 2004).

However, a complaint must plead sufficient

facts to “state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955,
1974, 167 L. Ed. 2d 929 (2007).

“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.”

Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.

Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009) (citations omitted).

The

plausibility standard requires “more than a sheer possibility that
a defendant has acted unlawfully.”

Id.; accord Wilson v. Merrill

Lynch & Co., 671 F.3d 120, 128 (2d Cir. 2011).

While “‘detailed

factual allegations’” are not required, “[a] pleading that offers
‘labels and conclusions’ or ‘a formulaic recitation of the elements
6

of a cause of action will not do.’”

Iqbal, 556 U.S. at

678, 129

S. Ct. at 1949 (quoting Twombly, 550 U.S. at 555, 127 S. Ct. at
1964-65).
A.

Plaintiff’s Section 1983 Claim is Implausible
To establish a prima facie case under 42 U.S.C. § 1983,

Plaintiff must show that: (1) the challenged action occurred “under
color of state law” and (2) the action deprived Plaintiff of a
constitutional right.

West v. Atkins, 487 U.S. 42, 48, 108 S. Ct.

2250, 2255, 101 L. Ed. 2d 40 (1988).

In the present case, all

Defendants are private actors, none of whom are alleged to act
under color of state law.

Indeed, Plaintiff alleges that “SAG is

a private nonprofit . . . .”

(Am. Compl. ¶ 6.)

Thus, because the

Defendants did not act under color of state law, Plaintiff’s
Section

1983

claim

alleging

a

deprivation

of

his

Amendment rights is implausible as a matter of law.

Fourteenth

Accordingly,

such claims are sua sponte DISMISSED WITH PREJUDICE pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii).
III. Application For a Temporary Restraining Order/Preliminary
Injunction3
It is well-established that “interim injunctive relief is

3

The Court notes that the purpose of a temporary restraining
order is to preserve the status quo and prevent irreparable harm
until the Court has decided the merits of a motion for a
preliminary injunction. Warner Bros. Inc. v. Dae Rim Trading,
Inc., 877 F.2d 1120, 1124 (2d Cir. 1989). Accordingly, the Court
is concerned solely with the motion for a preliminary injunction
at this time.
7

an extraordinary and drastic remedy which should not be routinely
granted.”

Buffalo Forge Co. v. Ampco–Pittsburgh Corp., 638 F.2d

568, 569 (2d Cir. 1981) (internal quotation marks and citation
omitted).

To obtain such relief, whether in the form of a

temporary retraining order or a preliminary injunction, the movant
“must show irreparable harm absent injunctive relief, and either a
likelihood of success on the merits, or a serious question going to
the merits to make them a fair ground for trial, with a balance of
hardships tipping decidedly in plaintiff’s favor.”

Louis Vuitton

Malletier v. Dooney & Bourke, Inc., 454 F.3d 108, 113-14 (2d Cir.
2006) (citing Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596
F.2d 70, 72 (2d Cir. 1979) (per curiam)); see also Christian
Louboutin S.A. v. Yves Saint Laurent Am. Holdings, Inc., 696 F.3d
206, 215 (2d Cir. 2012); see also Fed. R. Civ. P. 65.
“Such relief, however, ‘is an extraordinary and drastic
remedy, one that should not be granted unless the movant, by a
clear showing, carries the burden of persuasion.’”

Moore v.

Consol. Edison Co. of N.Y., 409 F.3d 506, 510 (2d Cir. 2005)
(quoting Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S. Ct. 1865,
1867, 138 L. Ed. 2d 162 (1997) (emphasis and citation omitted)).
Ultimately, the decision to grant or deny this “drastic” remedy
rests in the district court’s sound discretion.
409

F.3d

at

510

(A

district

court

has

See, e.g., Moore,

“wide

discretion

determining whether to grant a preliminary injunction.”).
8

in

A.

Irreparable Harm
“A showing of irreparable harm is ‘the single most

important

prerequisite

injunction.’”

for

the

issuance

of

a

preliminary

Faiveley Transp. Malmo AB v. Wabtec Corp., 559 F.3d

110, 118 (2d Cir. 2009) (quoting Rodriguez v. DeBuono, 175 F.3d
227, 233–34 (2d Cir. 1999)).

Accordingly, “‘the moving party must

first demonstrate that such injury is likely before the other
requirements
considered.’”

for

the

issuance

of

an

injunction

will

be

Grand River Enter. Six Nations, Ltd. v. Pryor, 481

F.3d 60, 66-67 (2d Cir. 2007) (quoting Freedom Holdings, Inc. v.
Spitzer, 408 F.3d 112, 114 (2d Cir. 2005)).
To meet the irreparable harm requirement, a plaintiff
“‘must demonstrate that absent a preliminary injunction [he] will
suffer an injury that is neither remote nor speculative, but actual
and imminent, and one that cannot be remedied if a court waits
until the end of trial to resolve the harm.’”

Faiveley, 559 F.3d

at 118 (quoting Grand River, 481 F.3d at 66).

“‘Where there is an

adequate

of

remedy

injunctions

at

are

circumstances.’”

law,

such

as

unavailable

an

award

except

in

money

damages,

extraordinary

Faiveley, 559 F.3d at 118 (quoting Moore, 409

F.3d at 510).
Here, as Plaintiff’s sparse Amended Complaint makes
clear, Plaintiff has not–-and cannot--demonstrate that he will
suffer

irreparable

harm

absent
9

injunctive

relief.

Although

Plaintiff

complains

attendance

at

the

that
SAG

the

Awards

lottery
is

selection

method

for

discriminatory

against

the

disabled, such claim is belied by the fact that he was selected via
lottery to attend in the past.

Any irreparable harm to Plaintiff

is purely speculative at this juncture since it is unclear whether
Plaintiff has even entered the lottery this year.

And, to the

extent that Plaintiff is concerned that other disabled actors, such
as those who are blind or without arms (unlike himself) and are
thus unable to apply online for tickets themselves, he, as a nonlawyer, cannot seek relief on behalf anyone other than himself.
See 28 U.S.C. § 1654; Eagle Assocs. v. Bank of Montreal, 926 F.2d
1305, 1308-10 (2d Cir. 1991) (adopting the view that “[§ 1654] does
not allow for unlicensed laymen to represent anyone else other than
themselves.”). Because Plaintiff has not demonstrated that he will
suffer irreparable harm absent injunctive relief, the Court need
not consider whether there is a likelihood of success on the merits
of his remaining ADA claims.

In the absence of irreparable harm,

Plaintiff’s

a

application

for

preliminary

injunction

must

be

DENIED.
Though thin, the Court declines to sua sponte dismiss
Plaintiff’s ADA claims at this early stage in the proceeding.
Accordingly, the Court directs Plaintiff to provide the Clerk of
the Court with Defendants’ addresses within fourteen (14) days of
the date of this Memorandum and Order. Upon receipt of Defendants’
10

addresses, the Court orders service of the Summonses and the
Amended Complaint upon the Defendants by the United States Marshal
Service forthwith.
CONCLUSION
For the reasons set forth above, Plaintiff’s application
to proceed in forma pauperis is GRANTED and his application for a
Temporary
DENIED.

Restraining

Order

and/or

Preliminary

Injunction

is

Given that Plaintiff’s Amended Complaint fails to allege

plausible Section 1983 claims, such claims are sua sponte DISMISSED
WITH PREJUDICE pursuant to 28 U.S.C. § 1915(e)(2)(B). Though thin,
Plaintiff’s ADA claims shall proceed and Plaintiff shall provide
Defendants’ addresses to the Clerk of the Court within fourteen
(14) days of the date of this Memorandum and Order.
receipt

of

Defendants’

addresses,

the

Clerk

Upon timely

shall

provide

summonses, copies of the Amended Complaint, and this Order to the
USMS for service upon Defendants forthwith.
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 the purpose of any appeal.
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:

January
25 , 2016
Central Islip, New York

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