Delaney v. Montgomery Transitional Services, Inc. et al

Filing 28

ORDER - That the 23 Report-Recommendation of Magistrate Judge Randolph F. Treece filed on March 2, 2012 is ACCEPTED in its entirety. That the Second Amended Complaint (Dkt. No. 22) is dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) & (iii) for failure to statea claim upon which relief may be granted and for failure to establish subjectmatter jurisdiction. Signed by Chief Judge Gary L. Sharpe on 4/26/2012. (Attachments: # 1 Judge Treece's Report-Recommendation) (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
CLARENCE DELANEY, JR.,
Plaintiff,
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Civ. No. 1:11-CV-684
(GLS/RFT)

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MONTGOMERY TRANSITIONAL SERVICES, INC.;
KIMMBERLI FLORY; JANE DOE; NEW YORK STATE
OFFICE OF MENTAL HEALTH; JANINE DYKEMAN,
Executive Director of Montgomery Transitional Services, Inc.;
LORI LAVENIA, Apartment Counselor; SUE HERBA,
Entitlement Specialist,
Defendants.

APPEARANCES:

OF COUNSEL:

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CLARENCE DELANEY, JR.
Plaintiff, Pro Se
P.O. Box 300
Marcy, NY 13403-0300

RANDOLPH F. TREECE
United States Magistrate Judge
REPORT-RECOMMENDATION and ORDER
The Clerk has sent to the Court for review Plaintiff Clarence Delaney, Jr.’s Second Amended
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Complaint (Dkt. No. 22), filed pursuant to a Decision and Order, dated January 10, 2012, of the
Honorable Gary L. Sharpe, Chief United States District Judge, adopting this Court’s ReportRecommendation and Order (Dkt. No. 15).
I. DISCUSSION
Plaintiff has been granted permission to proceed in forma pauperis. See Dkt. No. 13, Rep.Rec. and Order, dated Nov. 17, 2011, at p. 1. Section 1915(e) of Title 28 of the United States Code

directs that, when a plaintiff seeks to proceed in forma pauperis, “the court shall dismiss the case
at any time if the court determines that . . . the action or appeal (i) is frivolous or malicious; (ii) fails
to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant
who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). Thus, it is the responsibility of the
court to determine that a plaintiff may properly maintain his complaint before permitting him to
proceed further with his action.
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In his Complaint and his subsequent first Amended Complaint, Plaintiff attempted to bring
his action pursuant to 42 U.S.C. § 1983, which “establishes a cause of action for ‘the deprivation
of any rights, privileges, or immunities secured by the Constitution and laws’ of the United States.”
German v. Fed. Home Loan Mortg. Corp., 885 F. Supp. 537, 573 (S.D.N.Y. 1995) (quoting Wilder
v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) & 42 U.S.C. § 1983)); see also Myers v.
Wollowitz, 1995 WL 236245, at *2 (N.D.N.Y. Apr. 10, 1995) (stating that Ҥ 1983 is the vehicle by

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which individuals may seek redress for alleged violations of their constitutional rights”). Plaintiff’s
allegations, read liberally, consisted of state law claims of defamation, negligence, racial harassment
and/or discrimination, and lost or stolen property. Because he failed to identify a cognizable
constitutional or federal right that was allegedly violated and failed to allege that any Defendant
acted under color of state law, Plaintiff’s Amended Complaint was dismissed with leave to amend.
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See Dkt. No. 15, Order (adopting Dkt. No. 13, Rep.-Rec.).1
By his Second Amendment Complaint, Plaintiff now brings his action pursuant to Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Dkt. No. 22, Second Am. Compl., at ¶
8. He also has not included Lori Lavenia in his Second Amendment Complaint, either in the caption
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Further, Plaintiff could not establish diversity of citizenship jurisdiction, as all parties involved in Plaintiff’s
action are citizens of New York State. See Dkt. No. 13, Rep.-Rec., at pp. 5-6.

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nor the facts and claims. Otherwise, Plaintiff’s factual allegations remain virtually identical in
substance to the claims in his Amended Complaint. Compare Dkt. No. 11 with Dkt. No. 22.
Title VII of the Civil Rights Act of 1964 “prohibits employment discrimination ‘because of
. . . race, color, religion, sex, or national origin’ and states that such discrimination is established
when one of those factors ‘was a motivating factor for any employment practice, even though other
factors also motivated the practice.’” Staub v. Proctor Hosp., ___ U.S. ___, 131 S.Ct. 1186, 1191
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(2011) (citing 42 U.S.C. §§ 2000e-2(a), (m)) (emphasis added); see also Arbaugh v. Y&H Corp., 546
U.S. 500, 503-06 (2006) (discussing Title VII’s definitions of “employer,” “employee,” and the
“employee-numerosity requirement”).
Here, Plaintiff claims that he was housed and provided with treatment by Defendant
Montgomery Transitional Services, Inc., “a halfway house for coed individual men and women
adults who suffered from mental illness and substance [abuse].” Second Am. Compl. at “Facts” on

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p. 3. As in his previous pleadings, he alleges that while he was staying at such a residence, he was
subjected to abuse and unequal treatment from the Defendants, employees of Montgomery
Transitional Services, Inc., because of his African-American heritage. However, Plaintiff does not
claim, and we can imagine nothing indicating, an employer-employee relationship between himself
and the Defendants. Because Title VII of the Civil Rights Act lays for actions concerning employers
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and their employees, Plaintiff’s claims cannot be pursued under this Act.2 Further, for the same
reasons as stated above, which are narrated with greater detail in our previous ReportRecommendation and Order, Plaintiff’s action, read liberally, fails to state a facially valid claim

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Additionally, it is well-settled in this Circuit that individuals are not liable under Title VII. See Tomka v. Seiler
Corp., 66 F.3d 1295, 1313 (2d Cir. 1995), abrogated on other grounds by Burlington Indus. Inc. v. Ellerth, 524 U.S. 742
(1998); see also Wrighten v. Glowski, 232 F.3d 119, 120 (2d Cir. 2000) (per curiam).

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under § 1983 and offers no other basis for this Court’s jurisdiction.
Therefore, because Delaney has failed to establish a basis for the Court’s subject matter
jurisdiction, dismissal of Delaney’s claims is mandated. United States v. Griffin, 303 U.S. 226, 229
(1938); FED. R. CIV. P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.”). Accordingly, we recommend that Plaintiff’s action
be dismissed. This Court recognizes the Second Circuit’s preference to provide pro se plaintiffs
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with leave to amend their pleadings prior to dismissal; because Delaney has already been afforded
two opportunities to amend his Complaint, and in light of the discussion herein, providing Plaintiff
another opportunity to amend would be futile.
II. CONCLUSION
For the reasons stated herein, it is hereby

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RECOMMENDED, that the Second Amended Complaint (Dkt. No. 22) be dismissed
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) & (iii) for failure to state a claim upon which relief may
be granted and for failure to establish subject matter jurisdiction; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Report-Recommendation and
Order upon the parties to this action.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) days within which to file

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written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court.
FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS WILL
PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing
Small v. Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); see also 28 U.S.C. §
636(b)(1); FED. R. CIV. P. 72 & 6(a).

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Date: March 2, 2012
Albany, New York

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