Sales v. TWU Local 100 Vice President Brain Clark et al

Filing 76

ORDER ADOPTING REPORT AND RECOMMENDATION for (61 in 1:14-cv-08091-PAC-SN, 7 in 1:15-cv-08689-PAC-SN) Report and Recommendation. Accordingly, the Court ADOPTS Magistrate Judge Netburn's June 14, 2016 R&R in full, insofar as the R&R's rec ommendations are not rendered moot by Sales's withdrawal of his discrimination claims. The Clerk of Court is directed to terminate Case No. 15 Civ. 8689. The reference to Magistrate Judge Netburn is continued. (As further set forth in this Order.) (Signed by Judge Paul A. Crotty on 8/4/2016) Filed In Associated Cases: 1:14-cv-08091-PAC-SN, 1:15-cv-08689-PAC-SN Copies Mailed By Chambers. (kko)

USDCSDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#: _ _ _ _ _ _ __

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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LaVIEN SALES,

L~ATE FILED: g- '1- /&_ ·-=.JI
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Plaintiff,

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14 Civ. 8091 (PAC) (SN)

- against TWU LOCAL 100 VICE PRESIDENT BRIAN CLARK,
LOCAL 100 DIVISION CHAIRMAN RICHARD DAVIS,
KEN PAIGE, ED PICHARDO, and DWAYNE RUFFIN,

ORDER ADOPTING
REPORT AND
RECOMMENDATION

Defendants.

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LaVIEN SALES,

Plaintiff,

15 Civ. 8689 (PAC) (SN)

- againstNEW YORK CITY METRO TRANSPORTATION
AUTHORITY/MABSTOA,

. ORDER ADOPTING
REPORT AND
RECOMMENDATION

Defendants.

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HONORABLE PAUL A. CROTTY, United States District Judge:
On October 7, 2014, plaintiffLaVien Sales, proceeding prose and informapauperis, filed
Case No. 14 Civ. 8091 (the 2014 Case), alleging that officials of the Local 100 of the Transport
Workers Union discriminated against him. While the 2014 Case was pending, Sales filed a second
action, Case No. 15 Civ. 8689 (the 2015 Case), alleging employment discrimination against
Metropolitan Transportation Authority (MTA), the New York City Transit Authority (NYCTA), and
the Manhattan and Bronx Surface Transit Operating Authority (MaBSTOA). On June 14, 2016,
Magistrate Judge Netburn issued an exceptionally thorough and well-reasoned report and
recommendation (R&R), in which she recommends that the Court:
1. Dismiss the 2015 Case without prejudice to pursuing such claims in the 2014 Case.
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2. Dismiss all employment discrimination claims brought under Title VII against all
individual defendants.
3. Dismiss all age discrimination claims brought under the ADEA, the NYSHRL, and the
NYCHRL.
4. Dismiss all claims for failure to state claim or on immunity grounds against Defendants
Robert Felman, Patrick Lyons, Joseph Micelotta, Evette Vargas, Jimmy Moats, Omar
Bolano, Monique Baptise, Denise Washington, Hillary Tomlinson, Thomas Hill, Rodney
Goddard, Chris Sohl, AK Jeffery, Howard Roberts, Carmen Bianca, SLD Lamaze, C
Johnson, John Samuleson, Anita Miller, Reinaldo Rios, Denis Engel, Steven Farkas,
Stephen Downs, Arthur Schwartz, Tracy Kiernan, Mitchell Paluszek, Craig Costa, Robert
Grey, and Thomas Latimer.
5. Order the Plaintiff to show cause why his claims under the New York State and City
Human Rights Law against all defendants should not be dismissed as barred pursuant to
the statutory election-of-remedies provision. If the Plaintiff cannot demonstrate that his
complaints filed with the Division of Human have been dismissed on the grounds of (1)
administrative convenience; (2) untimeliness, or (3) annulment by the Plaintiff, the Court
recommends dismissal of such claims for lack of jurisdiction.
6. Dismiss any construed defamation claims as time-barred.
7. Dismiss all RICO claims against all defendants.
8. Deny as moot and without prejudice the pending motion to dismiss at ECF Docket No. 40
of the 2014 Case in light of the consolidation of the 2014 and 2015 cases and the newly
deemed final amended complaint.
R&R (Dkt. 61) at 24-25. 1
Sales objects to the R&R. First, he states that he "respectfully withdraws his discrimination
claims," leaving only the "Due Process and Fraud Violations." Obj. (Dkt. 70) at 1. Accordingly, all
claims brought under Title VII, the ADEA, the NYSHRL, and the NYCHRL are dismissed.
Although Sales does not specifically withdraw his RICO claims (or the construed defamation
claims), he does not object to those portions of the R&R recommending dismissal, and the Court
finds no clear error. The. claims are dismissed. The majority of Sales' s objection, however, is a
1 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)(l)(c). When a timely objection is made to the magistrate judge's R&R, the
Court must review the contested portions de novo, but it "may adopt those portions of the [R&R] to which no
objections have been made and which are not facially erroneous." La Torres v. Walker, 216 F. Supp. 2d 157, 159
(S.D.N.Y. 2000). Ifno objection is made to the R&R, the Court "need only satisfy itself that there is no clear error
on the face of the record ." Wilds v. United Parcel Serv., 262 F. Supp. 2d 163, 169 (S.D.N.Y. 2003).

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laundry list of named defendants with brief descriptions of how those people wronged him. The
problem is that Sales does not respon~ to any of the legal reasons identified by Magistrate Judge
Netburn why his claims against those defendants fail; he merely reasserts the allegations he already
made in his many pleadings and letters to the Court.
Accordingly, the Court ADOPTS Magistrate Judge Netburn's June 14, 2016 R&R in full,
insofar as the R&R's recommendations are not rendered moot by Sales's withdrawal of his
discrimination claims. The Clerk of Court is directed to terminate Case No. 15 Civ. 8689. The
reference to Magistrate Judge Netburn is continued.

Dated: New York, New York
August 4, 2016
SO ORDERED

United States District Judge

Copy mailed by chambers to:
LaVien Sales
PO Box 1179
New York, NY 10027

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