Coleman v. Olinski et al

Filing 10

ORDER adopting Report and Recommendations re 8 Report and Recommendations: The Court hereby ORDERS that Magistrate Judge Peebles' Report, Recommendation and Order (Dkt. No. 8) is ADOPTED in its entirety; and the Court further ORDERS that Pla intiff's complaints 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. Signed by U.S. District Judge Mae A. D'Agostino on 2/27/2017. (Copy served via regular and certified mail)(ban)

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

5:16-cv-00838
(MAD/DEP)

JAYA OLINSKI, HOWARD OLINSKI,
and THE SOCIAL SECURITY
ADMINISTRATION COMMISSIONER,
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, 2017, pro se Plaintiff Rochelle Coleman filed as one action four civil rights
complaints against two attorneys, Jaya Olinski1 and Howard Olinski, and, with respect to one
complaint, the Commissioner of Social Security. See Dkt. Nos. 1, 1-1, 1-2, and 1-3. Plaintiff
asserts claims pursuant to 42 U.S.C. § 1983 ("section 1983"), Title VII of the Civil Rights Act of
1964 ("Title VII"), 42 U.S.C. § 2000e et. seq., the Americans with Disabilities Act ("ADA"), 42
U.S.C. § 12101 et seq., and Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971) ("Bivens"). See id. Additionally, Plaintiff filed a motion for
leave to proceed in forma pauperis ("IFP") and two motions to appoint counsel. See Dkt. Nos. 2,

Magistrate Judge Peebles notes that Defendant Jaya "Olinski" is likely Jaya Shurtliff.
See Dkt. No. 8 at 3 n.2.
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3 and 6.
On July 29, 2016, Magistrate Judge Peebles issued a Report, Recommendation and Order
granting Plaintiff's application to proceed in forma pauperis and denying Plaintiff's two motions
to appoint counsel. See Dkt. No. 8 at 16. Magistrate Judge Peebles recommended the Court
dismiss Plaintiff's four complaints with prejudice due to Plaintiff's failure to state a claim. See id.
Currently before the Court is Magistrate Judge Peebles' Report, Recommendation and Order.
When a plaintiff seeks to proceed IFP, "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). In making this determination, "'the court has the
duty to show liberality towards pro se litigants,' however, 'there is a responsibility on the court to
determine that a claim has some arguable basis in law before permitting a plaintiff to proceed
with an action in forma pauperis.'" Griffin v. Doe, 71 F. Supp. 3d 306, 311 (N.D.N.Y. 2014)
(quoting Moreman v. Douglas, 848 F. Supp. 332, 333-334 (N.D.N.Y. 1994)) (internal citations
omitted); see, e.g., Thomas v. Scully, 943 F.2d 259, 260 (2d Cir. 1991) (per curiam) (holding that
a district court has the power to dismiss a complaint sua sponte if the complaint is frivolous).
When reviewing a complaint under 28 U.S.C. § 1915(e), courts are guided by the
applicable requirements of the Federal Rules of Civil Procedure. Rule 8(a) of the Federal Rules
of Civil Procedure provides that a pleading must contain "a short and plain statement of the claim
showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). While Rule 8(a) "does not
require 'detailed factual allegations,' . . . it demands more than an unadorned" recitation of the
alleged misconduct. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)) (other citations omitted).
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To survive dismissal for failure to state a claim, a party need only present a claim that is
"plausible on its face." Twombly, 550 U.S. at 570. "A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678 (citation omitted). In
determining whether a complaint states a claim upon which relief may be granted, "the court must
accept the material facts alleged in the complaint as true and construe all reasonable inferences in
the plaintiff's favor." Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted).
However, "the tenet that a court must accept as true all of the allegations contained in a complaint
is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678 (citation
omitted).
Neither party objected to Magistrate Judge Peebles' Report, Recommendation, and Order.
As a general matter, when a party files specific objections to a magistrate judge's report and
recommendation, the district court "make[s] 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)(C). However, when a party files "'[g]eneral or conclusory objections, or objections
which merely recite the same arguments presented to the magistrate judge,'" the court reviews
those recommendations "'for clear error.'" Chime v. Peak Sec. Plus, Inc., 137 F. Supp. 3d 183,
187 (E.D.N.Y. 2015) (quotation 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
judge." 28 U.S.C. § 636(b)(1)(C).
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
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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).
Plaintiff's section 1983 complaint alleges that her social security benefits "were
unlawfully taken," "misappropriat[ed]," "wrongfully unreported," not paid "in a timely manner"
and that she was "overcharg[ed] . . . case fees." Dkt. No. 1 at 2. Magistrate Judge Peebles
recommended the Court dismiss Plaintiff's section 1983 complaint with prejudice. See Dkt. No. 8
at 10.
"To state a claim under § 1983, a plaintiff must allege two elements: (1) 'the violation of a
right secured by the Constitution and laws of the United States,' and (2) 'the alleged deprivation
was committed by a person acting under color of state law.'" Vega v. Hempstead Union Free Sch.
Dist., 801 F.3d 72, 87-88 (2d Cir. 2015) (citations and quotations omitted). "State action is an
essential element of any § 1983 claim." Baum v. N. Dutchess Hosp., 764 F. Supp. 2d 410, 419
(N.D.N.Y. 2011) (citing Lugar v. Edmondson Oil Co., 457 U.S. 922, 934 (1982) (other citations
omitted)). Since private attorneys, even when appointed by the court, do not act under color of
state law for purposes of section 1983, the Court finds that Magistrate Judge Peebles correctly
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determined that this claim should be dismissed with prejudice. See Harrison v. New York, 95 F.
Supp. 3d 293, 328-29 (E.D.N.Y. 2015) (quotation and other citations omitted). Therefore, the
Court dismisses Plaintiff's section 1983 complaint with prejudice.
Plaintiff's Title VII complaint asserts a claim for discrimination on the basis of her race or
color, income, disability, and education. Dkt. No. 1-1 at 2. To support this claim, Plaintiff
alleges that in 2010 she "won [her] disability case" and "found out that [the] attorneys took more
money than the judge awarded." Id. at 3. Additionally, Plaintiff claims she was never given
"financial receipts from [her] lawyer" or told how much she was awarded. Id. Plaintiff also
claims that the attorneys "told [her] that [she] owed money" when she did not owe any money and
that the attorneys "altered documents of [her] financial records and kept money" improperly. Id.
at 4.
As Magistrate Judge Peebles correctly found, Plaintiff "does not allege employment
discrimination" and her complaint "do[es] not state a cognizable employment discrimination
cause of action under Title VII." Dkt. No. 8 at 11; see also Dawson v. Bumble & Bumble, 398
F.3d 211, 216 (2d Cir. 2005) (reciting the elements of a Title VII claim). Additionally, Plaintiff's
Title VII claim is subject to dismissal because "'individuals are not subject to liability under Title
VII.'" Sassaman v. Gamache, 566 F.3d 307, 315 (2d Cir. 2009) (quoting Patterson v. County of
Oneida, 375 F.3d 206, 221 (2d Cir. 2004)) (other quotations omitted). Moreover, "Title VII
plaintiffs must receive a 'right-to-sue letter' from the EEOC before filing suit in court" which
Plaintiff failed to attach. Hodge v. N.Y. Coll. of Podiatric Med., 157 F.3d 164, 168 (2d Cir. 1998)
(citing 42 U.S.C. § 2000e-5(f)(1)) (other citations omitted). Therefore, the Court dismisses
Plaintiff's Title VII complaint with prejudice.
Plaintiff's ADA complaint lists her disabilities as depression, anxiety, asthma, arthritis,
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unspecified mental health issues, migraines, brain surgery on November 10, 2015, sleep apnea,
and insomnia. Dkt. No. 1-2 at 2. Plaintiff alleges that the attorneys "took benefits from [her]"
and that in 2010 she "won [her] disability case" and was told by the judge "to pay fees," but not
given any paperwork to show her award. Id. at 3. Plaintiff further alleges she called the Social
Security Administration and spoke with "a woman [who] gave [her] some files" and while
reviewing the files, Plaintiff "saw staples and incorrect information." Id. Lastly, Plaintiff claims
she called "the attorney, [her] worker," but was ignored, mistreated, and kicked out of the
building she tried to enter. Id.
Magistrate Judge Peebles recommended the Court dismiss Plaintiff's ADA complaint with
prejudice. See Dkt. No. 8 at 12. As Magistrate Judge Peebles correctly determined, the only
section of the ADA that could apply is Title II, which provides that "no qualified individual with
a disability shall, by reason of such disability, be excluded from participation in or be denied the
benefits of the services, programs, or activities of a public entity, or be subjected to
discrimination by any such entity." 42 U.S.C. § 12132. Plaintiff failed to allege facts plausibly
how she was discriminated against by reason of her disability. Additionally, "[t]he ADA does not
provide for individual liability." Hodges v. Wright, No. 9:10-cv-0531, 2011 WL 5554866, *8
(N.D.N.Y. Sept. 29, 2011) (citing Herzog v. McLane Northeast, Inc., 999 F. Supp. 274, 276
(N.D.N.Y. 1998)). Therefore, the Court dismisses Plaintiff's ADA complaint with prejudice.
Plaintiff's Bivens complaint alleges that Jaya Olinski "received money that she should not
have" and that Howard Olinski "ignored [her] online complaints." Dkt. No. 1-3 at 2. Plaintiff
also asserts that "the staff tried to cover up their misconduct" and that the "Social Security
Administration commissioner failed to act and oversee the employees." Id. She claims that
Defendants wrongfully withheld her "awarded benefits and concealed financial records" and that
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"lawyers were paid for work not done" while never meeting with Plaintiff. Id. at 3. Plaintiff also
asserts that the "law firm took money and split it and all who were given money were overpaid[,]
except my actual attorney." Id. at 3. For this complaint, Plaintiff adds the Social Security
Administration Commissioner as a defendant. See id. at 1.
Magistrate Judge Peebles recommends that Plaintiff's Bivens complaint be dismissed with
prejudice. See Dkt. No. 8 at 14. In Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971), the Supreme Court established a private action for monetary
damages resulting from the violation of a constitutional right by federal agents or employees who
acted under the color of federal law. See Arar v. Ashcroft, 585 F.3d 599, 571-72 (2d Cir. 2009)
(discussing the history of Bivens actions). As Magistrate Judge Peebles correctly determined,
Bivens clearly does not apply to Jaya Olinski and Howard Olinski because neither worked for the
federal government. See Dkt. No. 8 at 13. As for the Social Security Administration
Commissioner, Plaintiff failed to allege the personal involvement of the Commissioner, which is a
prerequisite to recovery under Bivens. See Green v. Maurin, No. 15-cv-3967, 2015 WL 4249205,
*2 (E.D.N.Y. July 13, 2015); Vazquez-Mentado v. Buitron, 995 F. Supp. 3d 93, 96 (N.D.N.Y.
2014) (citation omitted). Finally, to the extent that Plaintiff is attempting to claim that she was
damaged by the improper denial or withholding of Social Security benefits, the Supreme Court
has refused to extend Bivens to cover such claims. See Schweiker v. Chilicky, 487 U.S. 412, 429
(1988) (refusing to extent Bivens to Fifth Amendment due process claim based on the denial of
Social Security benefits). Therefore, the Court dismisses Plaintiff's Bivens complaint with
prejudice.
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
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indication that a valid claim might be stated.'" Dolan v. Connolly, 794 F.3d 290, 295 (2d Cir.
2015) (quoting Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010)); see also Fed. R. Civ. P.
15(a) ("The court should freely give leave when justice so requires."); Mathon v. Marine Midland
Bank, N.A., 875 F. Supp. 986, 1003 (E.D.N.Y. 1995) (permitting leave to replead where the court
could "not determine that the plaintiffs would not, under any circumstances, be able to allege a
civil RICO conspiracy"). 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 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).
Although a court should generally permit a pro se litigant leave to amend at least once, the
Court finds that amendment is inappropriate in this case. The Court agrees with Magistrate Judge
Peebles that Plaintiff can not plead the requisite state action needed to support a section 1983
claim against her named defendants. See Dkt. No. 8 at 10. Additionally, Defendants Jane Olinski
and Howard Olinski are not state actors or federal employees and cannot be sued individually
under Title VII or the ADA. See id. at 15. Lastly, there is no possible basis for a Bivens action
against the Social Security Commissioner. Id. Therefore, Plaintiff's claims in all four complaints
are dismissed with prejudice.
After carefully reviewing Plaintiff's submissions, Magistrate Judge Peebles' July 29, 2016
Report, Recommendation and Order and the applicable law, and for the above-stated reasons, the
Court hereby
ORDERS that Magistrate Judge Peebles' Report, Recommendation and Order (Dkt. No.
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8) is ADOPTED in its entirety; and the Court further
ORDERS that Plaintiff's complaints 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: February 27, 2017
Albany, New York

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