James v. Gurneys Inn Resort & Spa LTD
MEMORANDUM AND ORDER - For the reasons set forth above, Plaintiff's Amended Complaint is sua sponte DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). The Clerk of the Court is directed to mark this case CLOSED and to mail a copy of this Memorandum and Order to Plaintiff at his last known address. 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 10/12/2017. C/M (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM & ORDER
-againstGURNEYS INN RESORT & SPA LTD,
Mark James, pro se
19029 U.S. Highway 19N, 20-D
Clearwater, FL 33764
SEYBERT, District Judge:
(“Plaintiff”) filed a Complaint in this Court pursuant to Title VII
of the Civil Rights Act of 1964, as codified, 42 U.S.C. §§ 2000e to
2000e-17 (“Title VII”) and the Age Discrimination in Employment Act
of 1967, as codified, 29 U.S.C. §§ 621 to 634 (“ADEA”) against
Gurneys Inn Resort & Spa Ltd. (“Defendant”), accompanied by an
application to proceed in forma pauperis.
By Memorandum and Order
dated April 25, 2017 (the “Order”), the Court granted Plaintiff’s
application to proceed in forma pauperis and sua sponte dismissed
§ 1915(e)(2)(B)(ii) and granted Plaintiff’s leave to file an
Amended Complaint within thirty (30) days from the date of the
On May 22, 2017, Plaintiff timely filed an Amended
Complaint against Defendant pursuant to Title VII.
Compl., Docket Entry 6.)
Because Plaintiff’s allegations as set
forth in his Amended Complaint do not allege a plausible Title VII
claim against the Defendant, the Amended Complaint is DISMISSED
WITHOUT PREJUDICE pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii).
Plaintiff’s Amended Complaint is submitted on the Court’s
employment discrimination complaint form and seeks to recover
monetary damages pursuant to Title VII for the alleged illegal
termination, inter alia, of Plaintiff’s employment with Defendant.
Although Plaintiff has checked the boxes on the form to allege that
Defendant discriminated against him based only on his gender/sex
and age, he has also included that he was born in 1960.
Compl. ¶¶ II, III. D.)
However, Plaintiff has not checked the box
to allege that his claims also arise under the ADEA.
Thus, it is
not clear whether Plaintiff also seeks to allege a claim of age
liberally construes the Amended Complaint to also include an age
discrimination claim brought pursuant to the ADEA.
In the space on the form that calls for a summary of the
All material allegations in the Complaint are presumed to be
true for the purpose of this Memorandum and Order. Rogers v.
City of Troy, N.Y., 148 F.3d 52, 58 (2d Cir. 1998) (in reviewing
a pro se complaint for sua sponte dismissal, a court is required
to accept the material allegations in the complaint as true).
Job duty was to enter staff housing to do smoke detector
inspections. I worked with HR to post english & spanish
Notices to Enter. A female employee claims I entered
with no notice. She never co-operated with Notices and
prior ones. I am entitled to the discovery investigation
reports and Gurney’s claimed I am not. Never received my
90 day review & health insurance was not offered.
(Am. Compl. ¶ III.E.)
Plaintiff has also annexed to his Amended
Complaint the same, single page, undated letter that he had annexed
to the original Complaint.
The letter reads as follows:
I was hired as a staff housing technician and manager.
I was to report to the chief enjineer Chris Depaoli who
was fired two weeks before I was.
On or around 2/10/16 I was instructed bye Fernando
Buitrago head of security and human resources to perform
an inspection on all the smoke detectors for the staff
housing rooms at Westlake Blvd, which I was responsible
I went to Human Resources and printed a english and
spanish version of the notice to enter 24 hours prior
too, I posted them on the units doors. One employee a
female whom speaks spanish claims I entered with no
notice. I knocked on the door several times, no answer,
left and came back later, knocked again, no answer. So
I used my managers access key to enter as instructed in
my job description. When I opened the door the female
employee was in the room with headphones on her eras
listening to music on her smart phone. How could she
hear me knock etc?
I was fired for this action and never given my 90 day
Excerpts from the Amended Complaint are reproduced here exactly
as they appear in the original. Errors in spelling, punctuation,
and grammar have not been corrected or noted. In addition, the
Court notes that Plaintiff’s allegations in the Amended Complaint
are nearly identical to those in the original Complaint.
review and health insurance coverage insurance.
I relocated to take the position giving up my apartment,
furniture and left a paying job.
Then I had to move again after being wrongfully
terminated, an had to find a new apartment again, buy new
furniture, and locate a new job which took until now to
In addition my health is now bad as I have high blood
pressure and now I am very depressed and am suffering
from depression. I am seeking $100,000 punitive damages.
(Am. Compl. at 8.)
Plaintiff has also annexed to his Amended
Complaint a copy of the Order with handwritten annotations at page
3 and 9 that change the amount of damages that Plaintiff seeks to
recover from Defendant.
(Am. Compl. at 11, 12.)
The Amended Complaint Does Not Allege a Plausible Claim
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 or amended complaint must
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).
As the Court
made clear in the Order, “‘[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
See Order at 5 (citing Ashcroft v. Iqbal,
556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009)).
plausibility standard requires “more than a sheer possibility that
a defendant has acted unlawfully.”
Id. at 678; accord Wilson v.
Merrill Lynch & Co., 671 F.3d 120, 128 (2d Cir. 2011).
“‘detailed factual allegations’” are not required, “[a] pleading
that offers ‘labels and conclusions’ or ‘a formulaic recitation of
the elements of a cause of action will not do.’”
Iqbal, 556 U.S.
at 678 (quoting Twombly, 550 U.S. at 555).
Plaintiff’s Employment Discrimination Claims
As the Court explained in the Order, “Title VII prohibits
an employer from discriminating against any individual regarding
“‘compensation, terms, conditions, or privileges of employment,
(Order at 5 (quoting 42 U.S.C. § 2000e-
The ADEA prohibits an employer from discriminating
29 U.S.C. § 623(a)(1).
“The sine qua non of
a gender-based [or age-based] discriminatory action claim under
Title VII [or the ADEA] is that the discrimination must be because
of a sex [or age or diability].”
Patane v. Clark, 508 F.3d 106,
112 (2d Cir. 2007) (emphasis in original) (internal quotation marks
and citation omitted).
Here, like the original Complaint, Plaintiff’s Amended
Complaint does not allege that he was subjected to any gender or
age-based adverse employment action nor are there any facts set
reasonably infer a gender-based or age-based motivation for such
It does not allege, for example, that any female or
younger employees were given preferential treatment when compared
to Plaintiff or that Plaintiff was subjected to any specific
Although Plaintiff is not required “to
plead specific facts to show a prima facie case of discrimination,
. . . dismissal is nevertheless appropriate where the plaintiff
failed to allege even the basic elements of a discriminatory action
Maldonado v. George Weston Bakeries, 441 F. App’x 808,
808-09 (2d Cir. 2011) (internal quotation marks and citation
omitted); see also Littlejohn v. City of N.Y., 795 F.3d 297, 311
establishing every element of a prima facie case of employment
discrimination, the facts alleged must give “plausible support to
a minimal inference of discriminatory motivation.”).
Complaint does not allege a plausible employment discrimination
claim under Title VII or the ADEA.
Plaintiff’s claims are thus
DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. § 1915(e)(2)
For the reasons set forth above, Plaintiff’s Amended
Complaint is sua sponte DISMISSED WITHOUT PREJUDICE pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii).
The Clerk of the Court is directed to
mark this case CLOSED and to mail a copy of this Memorandum and
Order to Plaintiff at his last known address.
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
See Coppedge v. United States, 369 U.S. 438, 444-45,
82 S. Ct. 917, 8 L. Ed. 2d 21 (1962).
/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
12 , 2017
Central Islip, New York
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