Solomon v. Human Services Coalition of Tompkins County, Inc. et al

Filing 6

MEMORANDUM-DECISION and ORDER: It is ORDERED that the # 4 Report-Recommendation is ACCEPTED and ADOPTED in its entirety; the claims asserted in Plaintiff's 2nd, 3rd, 4th, 5th, 7th, 10th, 11th and 12th causes of action are DISMISSED with prejud ice to the extent that they are premised on a violation of 18 U.S.C. § 241 and/or 18 U.S.C. § 245, or are asserted on behalf of a third party; that currently remaining in this case are Plaintiff's 1st, 6th, 8th, 9th and 13th causes of action in their entirety, and those claims asserted in her 2nd, 3rd, 4th, 5th, 7th, 10th, 11th and 12th causes of action that are not premised on a violation of 18 U.S.C. § 241 and/or 18 U.S.C. § 245. Further ORDERED that Plaintiff complet e a separate summons and USM-285 form for each Defendant, and return them to the Clerk's office, with 23 copies of her complaint. Upon receipt of said documents the Clerk shall schedule a Rule 16 conference, issue summonses and forward them, wit h copies of the Complaint and General Order 25 packet to the U. S. Marshal for service upon the named Defendants. Subsequent to service Defendants are to file a formal response to the surviving claims in Plaintiffs Complaint. Signed by Judge Glenn T. Suddaby on 5/27/2011. {Copy of Order, 23 summonses, 23 USM-285 forms sent to pro se Plaintiff by regular mail} (mae)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_______________________________________________
SARAIYA SOLOMON,
Plaintiff,
v.
HUMAN SERVICES COALITION OF TOMPKINS
COUNTY, INC.; LEE DILLON, as agent of and
individually; CHRISTINE BARKSDALE, as agent
of and individually; JAMES A. BROWN, as agent
of and individually; PATRICIA CAREY, as agent
of and individually; SUSAN DALE-HALL, as
agent of and individually; DAVID G. EVELYN,
M.D., as agent of and individually; JIM HULL, as
agent of and individually; JOHN T. LEMLEY, as
agent of and individually; SAOIRSE McCLORY,
as agent of and individually; DEBORAH
MOHLENHOFF, as agent of and individually;
SHAWN MARTEL MOORE, as agent of and
individually; RON PROVUS, as agent of and
individually; LENORE SCHWAGER, as agent
of and individually; REVEREND PHILIP SNYDER,
as agent of and individually; CAL WALKER, as
agent of and individually; NANCY ZAHLER, as
agent of and individually; EDWARD SWAYZE,
as agent of and individually; FRANCINE
SPADAFORA-MANZELLA, as agent of and
individually; CITY FEDERATION OF
WOMEN’S ORGANIZATION OF ITHACA,
NEW YORK; SARAH JOHNSON, as agent of
and individually; JIM DENNIS, as agent of
and individually; and M. KATHLEEN
SCHLATHER, as agent of and individually,
Defendants.
_______________________________________________
APPEARANCES:
SARAIYA SOLOMON
Plaintiff, Pro Se
111 South Street
Ithaca, New York 14850
HON. GLENN T. SUDDABY, United States District Judge

5:11-CV-0226
(GTS/ATB)

MEMORANDUM-DECISION and ORDER
Currently before the Court in this pro se civil rights action, filed by Saraiya Solomon
(“Plaintiff”) against the above-captioned Defendants, is United States Magistrate Judge Andrew
T. Baxter’s Report-Recommendation recommending that Plaintiff's causes of action be dismissed
with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), (iii) to the extent that they are premised
on a violation of one or both of two criminal statutes, 18 U.S.C. §§ 241 and 245, or asserted on
behalf of a third party. (Dkt. No. 4.) Plaintiff has not filed an Objection to the ReportRecommendation, and the time in which to do so has expired. For the reasons that follow, the
Report-Recommendation is accepted and adopted in its entirety; and Plaintiff’s causes of action
are dismissed with prejudice to the extent that they are premised on a violation of 18 U.S.C. §
241 and/or 18 U.S.C. § 245, or asserted on behalf of a third party.
I.

RELEVANT BACKGROUND
A.

Plaintiff’s Complaint

Plaintiff filed her Complaint on February 28, 2011. (Dkt. No. 1.) Generally, in her
Complaint, Plaintiff, a black female, alleges that, beginning in June 2009, she was subject to
discrimination as a participant in an employment program known as the Senior Community
Service Employment Program (“SCSEP”), administered by Experience Works, an organization
funded by the United States Department of Labor (“USDOL”). (Id.) More specifically, Plaintiff
alleges that, while she was assigned by SCSEP to Defendant Human Services Coalition of
Tompkins County, Inc. (“HSC”) for on-the-job training and transition into the workforce, certain
Defendants discriminated against her because of her race and retaliated against her when she
complained about this discrimination to the USDOL. (Dkt. No. 1.)

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Based on these (and other) factual allegations, Plaintiff asserts the following thirteen
causes of action against Defendants: (1) “Deprivation of [Plaintiff’s Right of] Equal Access [to
SCSEP]” based on her race (under 42 U.S.C. § 2000, N.Y. Human Rights Law, and New York
State common law); (2) “Conspiracy to Deprive [Plaintiff] of [Her] Civil Rights” based on her
race (under 18 U.S.C. § 241, N.Y. Human Rights Law, and New York State common law); (3)
“Willful Interference [with] and Oppression of [Plaintiff’s Engagement in] a Protected Activity”
based on her race (under 18 U.S.C. §§ 241 and 245, 42 U.S.C. § 1981, N.Y. Human Rights Law,
and New York State common law); (4) “Retaliation [Against Plaintiff]” based on her race (under
18 U.S.C. §§ 241 and 245, 42 U.S.C. § 1981, N.Y. Human Rights Law, and New York State
common law); (5) “Tortious Interference with [Plaintiff’s] Contract[ual Rights]” based on her
race (under 18 U.S.C. §§ 241 and 245, 42 U.S.C. § 1981, N.Y. Human Rights Law, and New
York State common law); (6) “Adverse Effect on [Plaintiff’s] Training/Employment Status”
based on her race (under 42 U.S.C. § 1981, N.Y. Human Rights Law, and New York State
common law); (7) “[Discrimination Against Plaintiff Regarding the] Privileges Terms and
Conditions of [Her] Employment” based on her race (under 18 U.S.C. § 245, 42 U.S.C. § 1981,
N.Y. Human Rights Law, and New York State common law); (8) “Imposition of Race-Biased
Training/Employment Standard [on Plaintiff]” based on her race (under 42 U.S.C. § 1981, N.Y.
Human Rights Law, and New York State common law); (9) “Intentional Infliction of Emotional
Harm [on Plaintiff]” based on her race (under 42 U.S.C. § 1981, N.Y. Human Rights Law, and
New York State common law); (10) “Negligent Infliction of Emotional Distress [on Plaintiff]”
based on her race (under 18 U.S.C. §§ 241 and 245, 42 U.S.C. § 1981, N.Y. Human Rights Law,
and New York State common law); (11) “Intentional Interference with [Plaintiff’s] Contractual
Relations” based on her race (under 18 U.S.C. §§ 241 and 245, 42 U.S.C. § 1981, N.Y. Human
3

Rights Law, and New York State common law); (12) “Intentional Interference with [Plaintiff’s]
Prospective Economic Advantage” based on her race (under 18 U.S.C. §§ 241 and 245, 42
U.S.C. § 1981, N.Y. Human Rights Law, and New York State common law); and (13)
“[Violation of the] Duty of Care [Owed to Plaintiff]” based on her race (Id. at ¶¶ 24-88).1
For a more detailed recitation of Plaintiff’s causes of action and factual allegations, the
Court refers the reader to the Complaint in its entirety, and to Magistrate Judge Baxter’s ReportRecommendation. (Dkt. Nos. 1 and 4.)
B.

Magistrate Judge Baxter’s Report-Recommendation

On March 4, 2011, Magistrate Judge Baxter issued an Order and ReportRecommendation in which he (1) granted Plaintiff’s motion to proceed in forma pauperis, and
(2) recommended that Plaintiff's causes of action alleging violations of criminal statutes, 18
U.S.C. §§ 241 and 245, or asserting claims on behalf of a third party, be dismissed with
prejudice. (Dkt. No. 4.) In support of his recommendation that Plaintiff’s causes of action based
on federal criminal statutes 18 U.S.C. §§ 241 and 245 be dismissed, Magistrate Judge Baxter
pointed out that no private right of action exists under these federal criminal statutes. (Id.)2 In
addition, in support of his recommendation that the portions of Plaintiff’s Complaint attempting
to assert claims on behalf of “clients” (i.e., third parties) be dismissed, Magistrate Judge Baxter

1

The Court notes that, in addition, Plaintiff appears to assert some discrimination
claims on behalf of her “client.” (Dkt. No. 1 at ¶ 2.)
2

The following allegations cite either 18 U.S.C. § 241 and/or 18 U.S.C. § 245: (1)
Count 2–Conspiracy to Deprive of Civil Rights; (2) Count 3–Wilful Interference and
Suppression of a Protected Activity; (3) Count 4–Retaliation; (4) Count 5–Tortious Interference
with Contract; (5) Count 7–Privileges Terms and Conditions of Employment; (6) Count 11–
Intentional Interference with Contractual Relations; and (7) Count 12–Intentional Interference
with Prospective Economic Advantage. (Dkt. No. 1, Violations and Claims.)
4

pointed out that (1) litigants generally “do not have standing to assert the rights of others[,]” and
the exceptions to this rule “do not apply in this case,” and (2) “[i]n any event, [P]laintiff does not
state that she is raising a claim for her unnamed ‘client.’” (Id.)3
II.

STANDARD OF REVIEW
A.

Standard of Review Governing a Report-Recommendation

When specific objections are made to a magistrate judge's report-recommendation, the
Court makes a "de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made." See 28 U.S.C. § 636(b)(1)(C).4
When only general objections are made to a magistrate judge's report-recommendation (or the
objecting party merely repeats the allegations of his pleading), the Court reviews for clear error
or manifest injustice. See Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *2-3 (N.D.N.Y.
Sept. 22, 1997) (Pooler, J.) [collecting cases], aff'd without opinion, 175 F.3d 1007 (2d Cir.
1999).5 Similarly, when a party makes no objection to a portion of a report-recommendation, the
3

Instead, in Plaintiff’s request for injunctive relief, she states that she wishes the
Court to “halt the discriminatory policy of preventing and harassing black people who would
access the establishment . . . .” (Dkt. No. 1, at ¶ 2.)
4

On de novo review, a district court will ordinarily refuse to consider arguments,
case law and/or evidentiary material that could have been, but was not, presented to the
magistrate judge in the first instance. See, e.g., Paddington Partners v. Bouchard, 34 F.3d 1132,
1137-38 (2d Cir. 1994) ("In objecting to a magistrate's report before the district court, a party has
no right to present further testimony when it offers no justification for not offering the testimony
at the hearing before the magistrate.") [internal quotation marks and citations omitted]; Pan Am.
World Airways, Inc. v. Int'l Bhd. of Teamsters, 894 F.2d 36, 40, n.3 (2d Cir. 1990) (district court
did not abuse discretion in denying plaintiff's request to present additional testimony where he
"offered no justification for not offering the testimony at the hearing before the magistrate").
5

See also Vargas v. Keane, 93-CV-7852, 1994 WL 693885, at *1 (S.D.N.Y. Dec.
12, 1994) (Mukasey, J.) ("[Petitioner's] general objection [that a] Report . . . [did not] redress the
constitutional violations [experienced by petitioner] . . . is a general plea that the Report not be
adopted . . . [and] cannot be treated as an objection within the meaning of 28 U.S.C. § 636."),
aff'd, 86 F.3d 1273 (2d Cir.), cert. denied, 519 U.S. 895 (1996).
5

Court reviews that portion for clear error or manifest injustice. See Batista v. Walker, 94-CV2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.) [citations omitted]; Fed.
R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition [citations omitted]. After
conducting the appropriate review, the Court may "accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C).
B.

Standard Governing Review of Plaintiff’s Complaint Pursuant to
28 U.S.C. § 1915(e) and Fed. R. Civ. P. 12(b)(6)

Magistrate Judge Baxter correctly recited the legal standard governing a district court’s
sua sponte review of pleadings submitted by a plaintiff seeking to proceed in forma pauperis,
pursuant to 28 U.S.C. § 1915(e) and Fed. R. Civ. P. 12(b)(6). (Dkt. No. 4, at 1-2.) As a result,
this standard is incorporated by reference in this Decision and Order. The Court would add only
that above-referenced pleading standard applies even to pro se litigants. While the special
leniency afforded to pro se civil rights litigants somewhat loosens the procedural rules governing
the form of pleadings (as the Second Circuit has observed), it does not completely relieve a pro
se plaintiff of the duty to satisfy the pleading standards set forth in Fed. R. Civ. P. 12 (and Fed.
R. Civ. P. 8).6 Rather, as both the Supreme Court and Second Circuit have repeatedly
recognized, the requirements set forth in Fed. R. Civ. P. 12 (and Fed. R. Civ. P. 8) are procedural
rules that even pro se civil rights plaintiffs must follow.7 Stated more simply, when a plaintiff is
proceeding pro se, "all normal rules of pleading are not absolutely suspended." Jackson v.
Onondaga County, 549 F. Supp.2d 204, 214, n. 28 (N.D.N.Y. 2008) (McAvoy, J., adopting
Report-Recommendation on de novo review) [citations omitted].

6

See Vega v. Artus, 610 F. Supp.2d 185, 196 & nn.8-9 (N.D.N.Y. 2009) (Suddaby,
J.) (citing Second Circuit cases); Rusyniak v. Gensini, 629 F. Supp.2d 203, 214 & n.34
(N.D.N.Y. 2009) (Suddaby, J.) (citing Second Circuit cases).
7

See Vega, 610 F. Supp.2d at 196, n.10 (citing Supreme Court and Second Circuit
cases); Rusyniak, 629 F. Supp.2d at 214 & n.34 (citing Second Circuit cases).
6

III.

ANALYSIS
Because Plaintiff failed to file an Objection to the Report-Recommendation, the Court

need review Magistrate Judge Baxter’s Report-Recommendation only for clear error. After
doing so, the Court concludes that the Report-Recommendation is thorough, well-reasoned and
correct. Magistrate Judge Baxter employed the proper legal standards, accurately recited the
facts, and reasonably applied the law to those facts. (See generally Dkt. No. 4.) As a result, the
Court adopts the Report-Recommendation for the reasons stated therein. (Id.)
The Court would add only two points. First, the Report-Recommendation would survive
even a de novo review. Second, when a district court dismisses a pro se claim sua sponte,
generally the plaintiff will be allowed to amend his action. See Gomez v. USAA Fed. Savings
Bank, 171 F.3d 794, 796 (2d Cir. 1999). However, an opportunity to amend is not required
where the defects in the plaintiff’s claims are substantive rather than merely formal, such that
any amendment would be futile.8 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) (citations
omitted), accord, Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *1 (N.D.N.Y. Sept. 22,
1997) (Pooler, J.) ("[T]he court need not grant leave to amend where it appears that amendment

8

See Foman v. Davis, 371 U.S. 178, 182 (1962) (denial not abuse of discretion
where amendment would be futile); Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) ("The
problem with Cuoco's causes of action is substantive; better pleading will not cure it.
Repleading would thus be futile. Such a futile request to replead should be denied.") (citation
omitted); Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991) (“Of course,
where a plaintiff is unable to allege any fact sufficient to support its claim, a complaint should be
dismissed with prejudice.”) (citation omitted); Health-Chem Corp. v. Baker, 915 F.2d 805, 810
(2d Cir. 1990) (“[W]here . . . there is no merit in the proposed amendments, leave to amend
should be denied”).
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would prove to be unproductive or futile.”) (citation omitted).9 Here, the Court finds that the
defects in the claims in question are substantive rather than merely formal, such that any
amendment would be futile.
ACCORDINGLY, it is
ORDERED that Magistrate Judge Baxter’s Report-Recommendation (Dkt. No. 4) is
ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that the claims asserted in Plaintiff’s Second, Third, Fourth, Fifth, Seventh,
Tenth, Eleventh and Twelfth Causes of Action (Dkt. No. 1) are DISMISSED with prejudice to
the extent that they are premised on a violation of 18 U.S.C. § 241 and/or 18 U.S.C. § 245, or are
asserted on behalf of a third party; and it is further
ORDERED that currently remaining in this case are Plaintiff’s First, Sixth, Eighth,
Ninth and Thirteenth Causes of Action in their entirety, and those claims asserted in her Second,
Third, Fourth, Fifth, Seventh, Tenth, Eleventh and Twelfth Causes of Action that are not
premised on a violation of 18 U.S.C. § 241 and/or 18 U.S.C. § 245; and it is further
ORDERED that the Clerk’s office shall forward to plaintiff blank summonses and USM285 Marshal forms; and Plaintiff is directed to complete a separate summons and USM-285 form
for each defendant in this action, and return them directly to the Clerk’s office, together with a
copy of her complaint to be served upon each defendant (23 copies). Upon receipt of the
9

The Court notes that two Second Circuit cases exist reciting the standard as being
that the Court should grant leave to amend "unless the court can rule out any possibility,
however unlikely it might be, that an amended complaint would succeed in stating a claim."
Gomez v. USAA Federal Sav. Bank, 171 F.3d 794, 796 (2d Cir. 1999); Abbas v. Dixon, 480 F.3d
636, 639 (2d Cir. 2007). The problem with these cases is that their "rule out any possibility,
however likely it might be" standard is rooted in the "unless it appears beyond doubt" standard
set forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), which was "retire[d]" by the Supreme
Court in Bell Atlantic Corporation v. Twombly, 127 S. Ct. 1955 (2007). See Gomez v. USAA
Federal Sav. Bank, 171 F.3d 794, 796 (relying on Branum v. Clark, 927 F.2d 698, 705 [2d Cir.
1991], which relied on Conley v. Gibson, 355 U.S. 41, 45-46 [1957]). Thus, this standard does
not appear to be an accurate recitation of the governing law.
8

completed summons and USM-285 form for each defendant and a copy of the complaint for each
defendant, the Clerk shall issue summonses and forward them, along with copies of the
Complaint and a packet containing General Order 25, which sets forth the Civil Case
Management Plan used by the Northern District of New York, to the United States Marshal for
service upon the named Defendants; and it is further
ORDERED that a formal response to the surviving claims in Plaintiff’s Complaint be
filed by Defendants or Defendants’ counsel as provided in the Federal Rules of Civil Procedure
subsequent to service of process on Defendants; and it is further
ORDERED that the Clerk is directed to schedule a Rule 16 conference before the
assigned Magistrate Judge; and it is further
ORDERED that any paper sent by a party to the Court or the Clerk shall be accompanied
by a certificate setting forth the date a true and correct copy of it was mailed to all opposing
parties or their counsel. Any letter of other document received by the Clerk or the Court
which does not include a certificate of service which clearly states that an identical copy
was served upon all opposing parties or their attorneys may be stricken by the Court.
Plaintiff shall also comply with any requests by the Clerk’s Office for any documents that are
necessary to maintain this action. All motions shall comply with the Local Rules of Practice of
the Northern District.
Dated: May 27, 2011
Syracuse, New York

9