Ivey v. New York State Higher Education Service Corporation et al

Filing 5

ORDER adopting Report and Recommendations re 3 Report and Recommendations: The Court hereby ORDERS that Magistrate Judge Hummel's Report-Recommendation and Order (Dkt. No. 3) is ADOPTED in its entirety; and the Court further ORDERS that this action is DISMISSED with prejudice; and the Court further ORDERS that the Clerk of the Court shall close this case; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Order on Plaintiff by regular mail. Signed by U.S. District Judge Mae A. D'Agostino on 5/13/14. (ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
JOE L. IVEY, JR.,
Plaintiff,
vs.

1:14-cv-326
(MAD/CFH)

STATE OF NEW YORK; NEW YORK STATE
HIGHER EDUCATION SERVICE
CORPORATION,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

JOE L. IVEY, JR.
P. O. Box 222
Albany, New York 12201
Plaintiff pro se

Mae A. D'Agostino, U.S. District Judge:
ORDER
Plaintiff commenced this action pro se on March 25, 2013, against the State of New York
and the New York State Higher Education Services Corporation ("NYSHESC"). See Dkt. No. 1.
Plaintiff seeks, among other things, $100,000,000 in damages based upon claims brought
pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 1981a, the Age
Discrimination in Employment Act ("ADEA"), and the Civil Service Reform Act ("CSRA"), as
well as seventeen pendent state law claims.
In an April 7, 2014, Report-Recommendation and Order, Magistrate Judge Christian F.
Hummel granted Plaintiff's application to proceed in forma pauperis and reviewed the sufficiency
of the complaint. See Dkt. No. 3. Magistrate Judge Hummel first noted that the Eleventh
Amendment bars Plaintiff's Section 1981 and ADEA claims against the State of New York and

NYSHESC. See id. at 6. Magistrate Judge Hummel also noted that Plaintiff had not alleged that
he was a federal employee, and thus, the complaint did not state a cause of action under CSRA.
See id. With respect to Plaintiff's Title VII claims, Magistrate Judge Hummel found the
discrimination allegations to be conclusory and subject to dismissal, but recommended that
Plaintiff be afforded an opportunity to amend his complaint to add further factual details. See id.
at 7. As to Plaintiff's putative Title VII retaliation and harassment claims, Magistrate Judge
Hummel found that Plaintiff's "allegations are insufficient to allow the court to draw the inference
that defendants are liable for the alleged misconduct under Title VII." Id. at 8. Finally,
Magistrate Judge Hummel noted that "[a] review of the complaint with respect to the state law
claims reveals that the pleading fails to satisfy the federal pleading requirements." Id. at 9. As
such, Magistrate Judge Hummel recommended that the Court dismiss the complaint. Magistrate
Judge Hummel recommended that, in the alternative, Plaintiff be given the opportunity to amend
the complaint in light of his pro se status. Plaintiff did not file any objections to Magistrate Judge
Hummel's Report-Recommendation. Instead, on April 21, 2014, Plaintiff filed an amended
complaint. See Dkt. No. 4.
When a party files specific objections to a magistrate judge's report-recommendation, the
district court makes a "de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). However,
when a party files "[g]eneral or conclusory objections or objections which merely recite the same
arguments [that he presented] to the magistrate judge," the court reviews those recommendations
for clear error. O'Diah v. Mawhir, No. 9:08-CV-322, 2011 WL 933846, *1 (N.D.N.Y. Mar. 16,
2011) (citations and footnote omitted). After the appropriate review, "the court may accept,
reject, or modify, in whole or in part, the findings or recommendations made by the magistrate
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judge." 28 U.S.C. § 636(b)(1). A litigant's failure to file objections to a magistrate judge's report
and recommendation, even when that litigant is proceeding pro se, waives any challenge to the
report on appeal. See Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003) (holding that, "[a]s a rule,
a party's failure to object to any purported error or omission in a magistrate judge's report waives
further judicial review of the point" (citation omitted)). A pro se litigant must be given notice of
this rule; notice is sufficient if it informs the litigant that the failure to timely object will result in
the waiver of further judicial review and cites pertinent statutory and civil rules authority. See
Frank v. Johnson, 968 F.2d 298, 299 (2d Cir. 1992); Small v. Sec'y of Health and Human Servs.,
892 F.2d 15, 16 (2d Cir. 1989) (holding that a pro se party's failure to object to a report and
recommendation does not waive his right to appellate review unless the report explicitly states
that failure to object will preclude appellate review and specifically cites 28 U.S.C. § 636(b)(1)
and Rules 72, 6(a), and former 6(e) of the Federal Rules of Civil Procedure).
Having reviewed Magistrate Judge Hummel's Report-Recommendation and Order and the
applicable law, the Court finds that Magistrate Judge Hummel correctly recommended that the
Court should dismiss Plaintiff's complaint. A review of Plaintiff's complaint makes clear that it
suffers from serious deficiencies, as outlined in Magistrate Judge Hummel's ReportRecommendation. Ordinarily, a court should not dismiss a complaint filed by a pro se litigant
without granting leave to amend at least once "when a liberal reading of the complaint gives any
indication that a valid claim might be stated." Branum v. Clark, 927 F.2d 698, 704-05 (2d Cir.
1991). Accordingly, the Court also adopts Magistrate Judge Hummel's recommendation that
Plaintiff be permitted an opportunity to amend his complaint.
Rather than object to Magistrate Judge Hummel's Report-Recommendation, Plaintiff
elected to amend his complaint. Having adopted Magistrate Judge Hummel's recommendation
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that Plaintiff be granted leave to amend, the Court will accept Plaintiff's amended complaint as
the operative pleading in this case and review its sufficiency. 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).
In the amended complaint, Plaintiff dropped the State of New York as a defendant and
named four new, individual defendants – Linda Dillon, Dennis H. Langley, Ruth Smith, and
Karen Chan. Plaintiff also appears to have specifically pled a hostile work environment claim.
The remaining claims and supporting allegations in the amended complaint are otherwise the
same as those set forth in the original complaint. Having carefully reviewed the amended
complaint, the Court finds that it suffers from the same deficiencies which prompted Magistrate
Judge Hummel to recommend dismissal. As such, the amended complaint is likewise subject to
dismissal. Moreover, it appears that permitting any further amendment would be futile.
An opportunity to amend is not required where "the problem with [plaintiff's] causes of action is
substantive" such that "better pleading will not cure it." Cuoco v. Moritsugu, 222 F.3d 99, 112
(2d Cir. 2000) (citation omitted). As the Second Circuit has explained, "[w]here it appears that
granting leave to amend is unlikely to be productive, . . . it is not an abuse of discretion to deny
leave to amend." Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993). Here, the
Court finds that amendment would be futile. Plaintiff has already attempted to replead his claims
once by filing an amended complaint, and he has nevertheless failed to state a plausible claim for
relief. Reading the complaint liberally, there is no "suggest[ion] that the plaintiff has a claim that
[he] has inadequately or inartfully pleaded and . . . should therefore be given a chance to
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reframe." Cuoco, 222 F.3d at 112.
Accordingly, the Court hereby
ORDERS that Magistrate Judge Hummel's Report-Recommendation and Order (Dkt. No.
3) is ADOPTED in its entirety; and the Court further
ORDERS that this action is DISMISSED with prejudice; and the Court further
ORDERS that the Clerk of the Court shall close this case; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Order on Plaintiff by
regular mail.

IT IS SO ORDERED.
Dated: May 13, 2014
Albany, New York

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