Bitetto v. D'Angelo et al
DECISION AND ORDER accepting and adopting # 8 Magistrate Judge Hummel's Report-Recommendation in its entirety. Plaintiff's Amended Complaint (Dkt. No. 7 ) shall be Dismissed with prejudice without further Order of this Court, unless with in THIRTY (30) DAYS of the date of this Decision and Order, Plaintiff files a Second Amended Complaint that corrects the pleading defects identified in the Report-Recommendation; and that, should Plaintiff timely file a Second Amended Complaint, it shall be referred to Magistrate Judge Hummel for his review. Signed by Chief Judge Glenn T. Suddaby on 6/6/18. (lmw) (Copy served upon pro se plaintiff via regular mail)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
MR. ADAM D’ANGELO, Partner in Quora, Inc.;
MR. CHARLIE CHEEVER, Partner in Quora, Inc.;
MR. MARC BODNICK, Partner in Quora, Inc.; and
QUORA, INC., Web Based Business,
Plaintiff, Pro Se
4 Fourth Avenue
Rensselear, New York 12144
GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this pro se civil rights action filed by Marco Bitetto
(“Plaintiff”) against Quora, Inc., and its above-named partners (“Defendants”) asserting claims
under Title III of the Americans with Disabilities Act (“ADA”), is United States Magistrate
Judge Christina F. Hummel’s Report-Recommendation recommending that Plaintiff’s Amended
Complaint be sua sponte dismissed without prejudice and that Plaintiff be given a final
opportunity to file an actionable pleading through a Second Amended Complaint. (Dkt. No. 8.)
Plaintiff has not filed an objection to the Report-Recommendation, and the deadline in which to
do so has expired. (See generally Docket Sheet.)
After carefully reviewing the relevant papers herein, including Magistrate Judge
Hummel’s thorough Report-Recommendation, the Court can find no clear-error in the ReportRecommendation:1 Magistrate Judge Hummel employed the proper standards, accurately recited
the facts, and reasonably applied the law to those facts. As a result, the Report-Recommendation
is accepted and adopted in its entirety for the reasons set forth therein. To those reasons, the
Court adds the following analysis.
Ordinarily, the Court would be reluctant to grant Plaintiff a second opportunity to amend
his Complaint given his woeful failure to cure the pleading defects in his original Complaint and
the lack of an indication that he can cure those defects in a Second Amended Complaint.
Generally, such a second opportunity to amend is not required by the law, even given a
plaintiff’s special status as a pro se civil rights litigant.2 However, the Court is mindful of the
When no objection is made to a report-recommendation, the Court subjects that
report-recommendation to only a clear error review. Fed. R. Civ. P. 72(b), Advisory Committee
Notes: 1983 Addition. When performing such a “clear error” review, “the court need only
satisfy itself that there is no clear error on the face of the record in order to accept the
recommendation.” Id.; see also Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1
(S.D.N.Y. July 31, 1995) (Sotomayor, J.) (“I am permitted to adopt those sections of [a
magistrate judge’s] report to which no specific objection is made, so long as those sections are
not facially erroneous.”) (internal quotation marks omitted).
See, e.g., Coleman v. brokersXpress, LLC, 375 F. App'x 136, 137 (2d Cir. 2010)
(“Nor can we conclude that the district court abused its discretion in denying [pro se plaintiff]
Coleman leave to amend. The district court afforded Coleman one opportunity to amend the
complaint, and Coleman made no specific showing as to how he would cure the defects that
persisted if given a second opportunity to amend.”); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d
Cir. 1988) (“We do not mean to imply that the court has no power to dismiss a prolix [pro se]
complaint without leave to amend in extraordinary circumstances, such as where leave to amend
has previously been given and the successive pleadings remain prolix and unintelligible.”);
Prezzi v. Schelter, 469 F.2d 691, 692 (2d Cir. 1972) (affirming dismissal of pro se plaintiff's
amended complaint without leave to amend for failure to state a claim upon which relief can be
granted, without engaging in analysis of whether second amended complaint would be futile).
Second Circuit’s pronouncement in Cresci v. Mohawk Valley Cmty. College, 693 F. App’x 21,
25 (2d Cir. 2017), that “[t]he proper time for a plaintiff to move to amend the complaint is when
the plaintiff learns from the District Court in what respect the complaint is deficient,” because,
“[b]efore learning from the court what are its deficiencies, the plaintiff cannot know whether he
is capable of amending the complaint efficaciously.” The Court is also mindful of the fact that, in
Plaintiff’s haste to amend his Complaint following the issuance of Magistrate Judge Hummel’s
first Report-Recommendation (of December 21, 2016), Plaintiff arguably was not adequately
informed of the pleading defects of his ADA claim, because the undersigned had not yet
accepted Magistrate Judge Hummel’s first Report-Recommendation. As a result, Plaintiff will
be given one final opportunity to amend his ADA claim.
Plaintiff is respectfully reminded that the chief (although not sole) defect in this claim
concerns his failure to allege facts plausibly suggesting that it was his blindness (and not some
other reason such as his failure to comply with certain of Quora’s policies) that caused
Defendants to block his account. (Dkt. No. 8, at 3-4.) In addition, Plaintiff is respectfully
advised that, based on his own attachments to his Amended Complaint, in which Quora
expresses a mission to “share and grow” knowledge from “anyone,” such a suggestion of
disability discrimination appears particularly implausible. (Dkt. No. 7, at 28-30.)
Finally, the Court expresses no opinion, at this time, as to whether a website can be a
place of public accommodation under the ADA. See Carlos v. Winn Dixie Stores, Inc., 242 F.
Supp.3d 1315, 1318-20 (S.D. Fla. 2017) (collecting cases indicating that, while the Seventh
Circuit has answered this question in the affirmative, the Third, Sixth and Ninth Circuits have
answered it in the negative, and finding that the Eleventh Circuit would join them).
For all of these reasons, Plaintiff’s Amended Complaint shall be dismissed with prejudice
and without further Order of this Court unless, within thirty (30) days of the date of this Decision
and Order, Plaintiff files a Second Amended Complaint that corrects the pleading defects
identified in the Report-Recommendation.
ACCORDINGLY, it is
ORDERED that Magistrate Judge Hummel’s Report-Recommendation (Dkt. No. 8) is
ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that Plaintiff’s Amended Complaint (Dkt. No. 7) shall be DISMISSED with
prejudice without further Order of this Court unless, within THIRTY (30) DAYS of the date of
this Decision and Order, Plaintiff files a Second Amended Complaint that corrects the pleading
defects identified in the Report-Recommendation; and it is further
ORDERED that, should Plaintiff timely file a Second Amended Complaint, it shall be
referred to Magistrate Judge Hummel for his review.
Dated: June 6, 2018
Syracuse, New York
HON. GLENN T. SUDDABY
Chief United States District Judge
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