Gioia v. AP Singh Main St Wine and Liquors

Filing 14

ORDER: For the reasons that follow (PLEASE SEE ORDER FOR FURTHER DETAILS), the renewed application to proceed in forma pauperis is granted. However, the Courtsua sponte dismisses the complaint for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and for failure to comply with Rule 8 of the Federal Rules of Civil Procedure. The Court grants Plaintiff thirty (30) days to amend her complaint to properly state a claim. If Plaintiff again fails to plead sufficient facts in her amended complaint, or if she fails to file an amended complaint within thirty (30) days, she will not have another opportunity to re-plead, and the Court will enter judgment. 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 (1962). The Clerk of Court shall mail a copy of this Order to Plaintiff at her address of record. So Ordered by Judge Joan M. Azrack on 2/16/2021. (Ortiz, Grisel)

FILED 
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------X
MARIAFRANCESCA GIOIA,

CLERK 

2/16/2021 4:25 pm

U.S. DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 
LONG ISLAND OFFICE 

For Online Publication Only

Plaintiff,
ORDER
20-CV-4014 (JMA) (SIL)

-againstAP SINGH, MAIN ST. WINE AND LIQUORS,
Defendants.
-------------------------------------------------------------X
AZRACK, United States District Judge:

On August 31, 2020, pro se plaintiff Mariafrancesca Gioia (“Plaintiff”) commenced this
action against AP Singh (“Singh”) and Main Street Wine and Liquors (“Defendants”) together
with an application to proceed - - - - - - - - - - - By Order dated October 29, 2020, the Court
in forma pauperis.
denied plaintiff’s application without prejudice and with leave to renew upon completion of the
AO 230 Long Form - - - - - - - - - - - application within twenty-one (21) days. (See ECF No.
in forma pauperis
9.) On November 6, 2020, plaintiff timely filed the Long Form. (ECF No. 10.) For the reasons
that follow, the renewed application to proceed - - - - - - - - - - - is granted. However, the Court
in forma pauperis
sua sponte dismisses the complaint for failure to state a claim pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii) and for failure to comply with Rule 8 of the Federal Rules of Civil Procedure.
I. BACKGROUND1
Plaintiff’s sparse complaint is submitted on the Court’s general complaint form and is brief.
(See ECF No. 1.)2 Plaintiff did not check either of the boxes on the form to indicate the basis for
federal court jurisdiction. See Compl. ¶ II. However, in the space that asks for the “specific

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All material allegations in the complaint are assumed to be true for the purpose of this Order. See, e.g., Rogers v.
City of Troy, New York, 148 F.3d 52, 58 (2d Cir. 1998) (stating in reviewing a pro se complaint for sua sponte
dismissal, a court is required to accept the material allegations in the complaint as true). Excerpts from the complaint
are reproduced here exactly as they appear in the original. Errors in spelling, punctuation, or grammar have not been
corrected or noted.
Plaintiff has also annexed several attachments to her complaint, including a “Complaint Letter,” a “Letter of Intent
to Sue,” a “Memorandum of Law,” and a “Statutory Declaration.” (See Compl. at 9-10, 12,-13, 15-16, 19-20.)
These documents repeat the allegations included in the complaint.
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federal statutes, federal treaties, and/or provision of the United States Constitution that are at issue
in this case,” Plaintiff has responded: “Business and commerce professionality sexual disparity
and rudeness unclaimed tips deprivations/denial/stolen.”

(Id. ¶ II.A.)

Plaintiff has also

completed the section relating to diversity of citizenship and alleges that she, Singh, and Main
Street Wine and Liquors are all citizens of New York. (Id. ¶ II. B. 1-2.) Plaintiff also alleges
that the amount in controversy is $75,000. (Id. ¶ II. B. 3.) In its entirety, Plaintiff’s Statement
of Claim alleges:
AP Singh of Main St Wine and Liquors blatantly steals Post-Mates delivery driver
tips & provides no pay or claimencees/dependents while claiming to be using
Doordash and making the deliveries himself. The customer clearly puts delivery
driver tips but in the system of Post-Mates he just puts in tax (lying/fraud) like $720 (50). When confronted multiple times about this issue he withstood an
unwelcome strange sexual and rude tone. Very disrespectful and unprofessional
as we did his deliveries for free. Plus a bit PTSD people like that can run a
business and cheat the system and [indecipherable].
(Id. ¶ III.)

For relief, plaintiff seeks $75,000 for “tax fraud/employee usage/sexual

harassment/stealing delivery driver tips.” (Id. ¶¶ IV.)
II. DISCUSSION
A. In Forma Pauperis Application
Upon review of Plaintiff’s declarations in support of her application to proceed in forma
pauperis, the Court finds that Plaintiff is qualified to commence this action without prepayment of
the filing fees. 28 U.S.C. § 1915(a)(1). Therefore, Plaintiff’s application to proceed in forma
pauperis is granted.
B. Standard of Review
Pro se submissions are afforded wide interpretational latitude and should be held “to less
stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519,
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520 (1972) (per curiam); - - --- - - - - - - - - - - - - - - 105 F.3d 857, 860 (2d Cir. 1997). In
see also Boddie v. Schnieder,
addition, the court is required to read Plaintiff’s pro se complaint liberally and interpret it as raising
the strongest arguments it suggests. United States v. Akinrosotu, 637 F.3d 165, 167 (2d Cir. 2011)
(per curiam) (citation omitted); Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009).
The Supreme Court has long held that pro se complaints need not even plead specific facts;
rather the complainant “need only give the defendant fair notice of what the . . . claim is and the
grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (internal quotation
marks and citations omitted); cf. Fed. R. Civ. P. 8(e) (“Pleadings must be construed so as to do
justice.”). However, even a pro se plaintiff must still plead “enough facts to state a claim to relief
that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (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 (2009) (citations omitted). The plausibility standard requires “more than
a sheer possibility that a defendant has acted unlawfully.” Id. at 678. While “‘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.’” Id. at 678 (quoting Twombly, 550
U.S. at 555).
C. Federal Rule of Civil Procedure 8
Federal Rule of Civil Procedure 8 requires a plaintiff to provide “a short and plain statement
of the claim showing that the pleader is entitled to relief” against each defendant named so that
they have adequate notice of the claims against them. FED. R. CIV. P. 8(a)(2), see Iqbal, 556 U.S.
at 678 (holding that Rule 8 “demands more than an unadorned, the-defendant-unlawfully-harmed-

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me accusation”). The purpose of Rule 8 “is to give fair notice of the claim being asserted so as
to permit the adverse party the opportunity to file a responsive answer, prepare an adequate defense
and determine whether the doctrine of res judicata is applicable.” Powell v. Marine Midland
Bank, 162 F.R.D. 15, 16 (N.D.N.Y. 1995) (internal quotation marks and citation omitted). A
pleading that only tenders naked assertions devoid of further factual enhancement” will not suffice.
Id. (internal citations and alterations omitted). A court may dismiss a complaint that 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).
Here, as is readily apparent, Plaintiff’s complaint falls well short of the required pleading
standard. Plaintiff’s vague and sparse submission makes it impossible to determine the basis for
her claims. Insofar as Plaintiff seeks to pursue state law claims by invoking this Court’s diversity
jurisdiction, the Court lacks such jurisdiction given Plaintiff’s allegations that all of the parties are
citizens of New York and the amount in controversy does not exceed $75,000. See Compl. ¶ II.
B. 1-3; see also 28 U.S.C. § 1332. Nor does plaintiff provide a basis to invoke this Court’s federal
question jurisdiction. See Compl. ¶ II.A. Though far from clear, to the extent that Plaintiff seeks
to pursue an employment discrimination claim based on gender discrimination or sexual
harassment, her conclusory allegations of “sexual disparity” and “an unwelcome strange sexual
and rude tone” are insufficient to satisfy Rule 8’s requirements.

(Compl. ¶¶ II.A., III.)

Moreover, to the extent Plaintiff seeks to hold Singh liable for employment discrimination under
Title VII, such claim would fail as a matter of law because “Title VII does not impose liability on
individuals.” Tomka v. Seiler Corp., 66 F.3d 1295, 1317 (2d Cir. 1995); -- --- ---------see also Lore v. City of
Syracuse, 670 F.3d 127, 169 (2d Cir. 2012). For these reasons, Plaintiff’s complaint is dismissed
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without prejudice.
D. Leave to Amend
A pro se Plaintiff should ordinarily be given the opportunity “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 New York, 579 F.3d 176 (2d Cir. 2009) (quoting Gomez v. USAA Fed. Sav. Bank, 171
F.3d 794, 795-96 (2d Cir. 1999) (internal quotation marks omitted)). Yet while “pro se plaintiffs
are generally given leave to amend a deficient complaint, a district court may deny leave to amend
when amendment would be futile.” Id. (citations omitted).
Here, in an abundance of caution, the Court grants Plaintiff thirty (30) days to amend her
complaint to properly state a claim. Should Plaintiff choose to file an amended complaint, the
amended complaint must allege facts in support of her claims and should not rely on documents
annexed to her submission in lieu of allegations. Further, “[t]o make out a prima facie case of
employment discrimination under Title VII, the [p]laintiff must demonstrate that she (1) was
within a protected class, (2) was qualified for the position at issue, (3) was subject to an adverse
employment action, and (4) the adverse action occurred under circumstances giving rise to an
inference of discrimination.” Macpherson v. Eversource Energy Serv. Corp., 19-CV-01569, 2020
WL 6263178, at *4 (D. Conn. Oct. 23, 2020) (citing Naumovski v. Norris, 934 F.3d 200, 214 n.
39 (2d Cir. 2019) (setting out the familiar McDonnell Douglas framework)).
Plaintiff is advised that an amended complaint replaces the original complaint in its entirety
and therefore must include the basis for this Court’s jurisdiction as well as all relevant claims and
factual allegations giving rise to such claims. The amended complaint must be captioned as
“Amended Complaint” and bear the same docket number as this Order: 20-CV-4014 (JMA)(SIL).
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If submitted, the amended complaint will be reviewed for compliance with this Order and for
sufficiency under FED. R. CIV. P. 8 and 28 U.S.C. § 1915. Should Plaintiff prepare an amended
complaint, she should carefully consider this Order and amend her claims accordingly.
If Plaintiff again fails to plead sufficient facts in her amended complaint, or if she fails to
file an amended complaint within thirty (30) days, she will not have another opportunity to replead, and the Court will enter judgment. Alternatively, Plaintiff may pursue any valid claims
she may have against Defendants under state law in state court.
III. CONCLUSION
For the forgoing reasons, the complaint is sua sponte dismissed without prejudice for
failure to state a claim for relief pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and for noncompliance
with Federal Rule of Civil Procedure 8. The Court grants Plaintiff thirty (30) days to amend her
complaint to properly state a claim. If Plaintiff again fails to plead sufficient facts in her amended
complaint, or if she fails to file an amended complaint within thirty (30) days, she will not have
another opportunity to re-plead, and the Court will enter judgment.
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 - - - - - - - - - - - status is denied for the purpose
in forma pauperis
of any appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
The Clerk of Court shall mail a copy of this Order to Plaintiff at her address of record.
SO ORDERED.
Dated: February 16, 2021
Central Islip, New York
_____/s/ (JMA)__________________
JOAN M. AZRACK
UNITED STATES DISTRICT JUDGE
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