Coleman v. Sutkowy et al

Filing 9

ORDER adopting Report and Recommendations re 8 Report and Recommendations: The Court hereby ORDERS that Magistrate Judge Peebles's August 10, 2016 Report, Recommendation and Order (Dkt. No. 8) is ADOPTED in its entirety for the reasons set forth therein; and the Court further ORDERS that Plaintiff's complaints (Dkt. Nos. 1, 1-1) are DISMISSED WITH PREJUDICE; and the Court further ORDERS that the Clerk of the Court shall enter judgment in Defendants' favor and close this ca se; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Order on all parties in accordance with the Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 11/28/2016. [copy mailed to plaintiff via certified mail/return receipt] (ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
ROCHELLE COLEMAN,
Plaintiff,
vs.

5:16-cv-00837
(MAD/DEP)

DAVID SUTKOWY; ROBERT E.
ANTONACCI; THOMAS P. DINAPOLI,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

ROCHELLE COLEMAN
231 Lilac Street
Syracuse, New York 13208
Plaintiff, pro se

Mae A. D'Agostino, U.S. District Judge:
ORDER
On July 8, 2016, pro se Plaintiff Rochelle Coleman ("Plaintiff") filed two separate
complaints as one action against David Sutkowy, Robert E. Antonacci, and Thomas P. DiNapoli
(collectively, "Defendants"). See Dkt. Nos. 1, 1-1. The complaints were brought pursuant to
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII") and 42 U.S.C. §
1983 ("Section 1983"). See id. Plaintiff also filed a motion to proceed in forma pauperis and two
motions for appointment of counsel. See Dkt. Nos. 2, 3, 5.
In an August 10, 2016 Report, Recommendation and Order, Magistrate Judge David E.
Peebles recommended that the entire action be dismissed with prejudice pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii) for failure to state a claim on which relief may be granted. See Dkt. No. 8 at 2.
Plaintiff has not filed any objections to the Report, Recommendation and Order.

In Plaintiff's Title VII complaint, she alleges that she was discriminated against based on
her race, national origin, income, education, and disability. See Dkt. No. 1 at 2. Plaintiff claims
that Defendants ignored her report that "county workers" were "stealing benefits" from her. See
id. at 3. Plaintiff claims that she was retaliated against and "denied aid or services." See id. at 4.
In her Section 1983 complaint, Plaintiff alleges that Defendants failed to investigate the fraud and
crimes that she reported. See Dkt. No. 1-1 at 2. She claims that she "report[ed] crimes to the
agency directors and they ignored [her]." Id. at 3. Magistrate Judge Peebles liberally construed
Plaintiff's Section 1983 claim as one for retaliation in violation of the First Amendment. See Dkt.
No. 8 at 4.
In reviewing a report and recommendation, a district 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). When a party makes specific objections to a magistrate judge's report, the district
court engages in de novo review of the issues raised in the objections. See id.; Farid v. Bouey,
554 F. Supp. 2d 301, 307 (N.D.N.Y. 2008). When a party fails to make specific objections, the
court reviews the magistrate judge's report for clear error. See Farid, 554 F. Supp. 2d at 307; see
also Gamble v. Barnhart, No. 02-CV-1126, 2004 WL 2725126, *1 (S.D.N.Y. Nov. 29, 2004).
Plaintiff has not filed objections in this case.
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
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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).
"[I]n a pro se case, the court must view the submissions by a more lenient standard than
that accorded to 'formal pleadings drafted by lawyers.'" Govan v. Campbell, 289 F. Supp. 2d 289,
295 (N.D.N.Y. 2007) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)) (other citations
omitted). The Second Circuit has opined that the court is obligated to "make reasonable
allowances to protect pro se litigants" from inadvertently forfeiting legal rights merely because
they lack a legal education. Id. (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)).
However, "[t]he right of self-representation does not exempt a party from compliance with the
relevant rules of procedural and substantive law." Massie v. Ikon Office Solutions, Inc., 381 F.
Supp. 2d 91, 94 (N.D.N.Y. 2005) (quoting Clarke v. Bank of New York, 687 F. Supp. 863, 871
(S.D.N.Y. 1988)).
Magistrate Judge Peebles recommended that Plaintiff's Title VII claim be dismissed with
prejudice. Magistrate Judge Peebles noted that Plaintiff does not allege employment
discrimination in this action. See Dkt. No. 8 at 8. Moreover, Magistrate Judge Peebles noted that
Title VII actions cannot be brought against individuals, and that Plaintiff did not receive a rightto-sue letter from the Equal Employment Opportunity Commission ("EEOC") showing that she
exhausted administrative remedies before commencing an action. See id.

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The Court agrees with Magistrate Judge Peebles that Plaintiff's Title VII claim should be
dismissed. Plaintiff does not allege employment discrimination in her complaint. See Dkt. No. 1.
It appears that Plaintiff alleges that she was discriminated against by Defendants failing to
investigate her claims of fraud. See id. at 3. These allegations do not state a claim under Title
VII. See Feingold v. New York, 366 F.3d 138, 152 (2d Cir. 2004) (discussing the elements of
Title VII discrimination and retaliation claims). Moreover, a Title VII action may not be brought
against individuals. See Sassaman v. Gamache, 566 F.3d 307 (2d Cir. 2009) ("individuals are not
subject to liability under Title VII") (quoting Patterson v. County of Oneida, 375 F.3d 206, 221
(2d Cir. 2004)). Since all Defendants are individuals, Plaintiff cannot state a claim against them
under Title VII. Finally, Magistrate Judge Peebles correctly concluded that, since Plaintiff did
not receive a right-to-sue letter from the EEOC, she has not exhausted her administrative
remedies before commencing this action. See 42 U.S.C. § 2000e-5(f)(1). Accordingly, Plaintiff's
Title VII claim is dismissed.
Magistrate Judge Peebles also recommended that Plaintiff's Section 1983 claim be
dismissed. Magistrate Judge Peebles liberally construed this claim as one for retaliation based on
Defendants' alleged failure to respond to Plaintiff's complaint of criminal activity. See Dkt. No. 8
at 9. Magistrate Judge Peebles concluded that Plaintiff failed to allege that Defendants took
adverse action against her, which is an essential element of a First Amendment retaliation claim.
The Court agrees that Plaintiff's Section 1983 claim should be dismissed. To state a First
Amendment retaliation claim, a plaintiff must allege "(1) that the speech or conduct at issue was
protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there was a
causal connection between the protected speech and the adverse action." Davis v. Goord, 320
F.3d 346, 352 (2d Cir. 2003) (quoting Dawes v. Walker, 239 F.3d 489, 491 (2d Cir. 2001)).
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Defendants' alleged failure to investigate Plaintiff's complaints of criminal activity cannot be
considered "adverse action" against her. See Porter v. Goord, No. 04-CV-0485, 2009 WL
2180580, *7 (W.D.N.Y. July 22, 2009) ("[E]ven assuming, arguendo, that Defendants failed to
commence a criminal investigation into the alleged unlawful violations of Plaintiff's civil rights to
retaliate against Plaintiff for complaining about Defendants' alleged unlawful actions . . . such
failure does not constitute adverse action by Defendants, and, as such, cannot support a First
Amendment retaliation claim"). Plaintiff has also failed to plead facts that plausibly suggest that
Defendants refused to investigate Plaintiff's complaints. Moreover, as Magistrate Judge Peebles
noted, there is no indication that Plaintiff's circumstances changed as a result of her complaints.
See Dkt. No. 8 at 12. Accordingly, Plaintiff's First Amendment retaliation claim is dismissed.
As Magistrate Judge Peebles also noted, the Court should generally grant leave to amend a
complaint at least once. However, "such leave is not required when amendment would be futile."
Bridgeforth v. U.S. Navy Recruitment Office, No. 1:11-CV-431, 2011 WL 5881778, *2 (N.D.N.Y.
Nov. 23, 2011) (citing In re Lehman Bros. Mortgage-Backed Sec. Litig., 650 F.3d 167, 188 (2d
Cir. 2011)). Here, Magistrate Judge Peebles correctly concluded that granting leave to amend
would be futile. There is no possible basis for Plaintiff's claims under Title VII since Defendants
are all individuals. Moreover, Plaintiff cannot state a claim under Section 1983 because
Defendants' alleged failure to investigate Plaintiff's complaints of fraud cannot be considered
adverse action. As such, Plaintiff's claims are dismissed with prejudice.
After carefully reviewing Plaintiff's submissions, Magistrate Judge Peebles's August 10,
2016 Report, Recommendation and Order and the applicable law, and for the above-stated
reasons, the Court hereby

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ORDERS that Magistrate Judge Peebles's August 10, 2016 Report, Recommendation and
Order (Dkt. No. 8) is ADOPTED in its entirety for the reasons set forth therein; and the Court
further
ORDERS that Plaintiff's complaints (Dkt. Nos. 1, 1-1) are DISMISSED WITH
PREJUDICE; and the Court further
ORDERS that the Clerk of the Court shall enter judgment in Defendants' favor and close
this case; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Order on all parties in
accordance with the Local Rules.
IT IS SO ORDERED.

Dated: November 28, 2016
Albany, New York

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