Ortega et al v. U.S. Department of Education et al

Filing 6

ORDER OF SERVICE: With the exception of Blanca Torres Mutt, all defendants are dismissed from the action without prejudice. The Clerk of Court is directed to send to the plaintiff one USM-285 Form. The Court certifies, pursuant to 28 U.S.C. § 19 15(a)(3), that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962), and as further set forth. USM-285 Form due by 3/9/2015. Request for Issuance of Summons due by 3/9/2015. (Signed by Judge John G. Koeltl on 2/6/2015) (rjm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
────────────────────────────────────
MOISES ORTEGA,
Plaintiffs,

14 Cv. 9703 (JGK)

- against -

ORDER OF SERVICE

UNITED STATES DEPARTMENT OF
EDUCATION, ET AL.,
Defendants.
────────────────────────────────────
JOHN G. KOELTL, District Judge:
Plaintiff Moises Ortega, proceeding pro se and in forma
pauperis, filed this action asserting claims that the Court
construes as arising under the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12101 et seq., and section 504 of the
Rehabilitation Act, 29 U.S.C. § 794(a).
STANDARD OF REVIEW
The Court must dismiss an in forma pauperis complaint, or
portion thereof, that is frivolous or malicious, fails to state
a claim on which relief may be granted, or seeks monetary relief
from a defendant who is immune from such relief.

28 U.S.C. §

1915(e)(2)(B); see Livingston v. Adirondack Beverage Co., 141
F.3d 434, 437 (2d Cir. 1998).

Although § 1915(e)(2)(B) mandates

dismissal on any of these grounds, the Court is “obligated to
construe pro se pleadings liberally,” Harris v. Mills, 572 F.3d
66, 72 (2d Cir. 2009), and interpret them to raise the
“strongest [claims] that they suggest,” Triestman v. Fed. Bureau

of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (per curiam)
(internal quotation marks omitted).
BACKGROUND
In his original complaint, the plaintiff named as
defendants the United States Department of Education; the
assistant principal of Bronx Public School (“P.S.”) 211, Blanca
Torres Mutt; P.S. 211 Principal Tanya Drummond; P.S. 211 student
Francisco Moya; Bronx Office of Student Suspensions & Hearings
attorney Keith Kerulo; and Advocates for Children employee
Nicholas James Sheehan.
The plaintiff is deaf, and his son, J.O., attends P.S. 211.
J.O. apparently was facing suspension, and the plaintiff met
with Torres about the matter on September 30, 2014.

Torres

denied the plaintiff’s request for a sign language interpreter
and instead suggested that J.O. could interpret for the
plaintiff or that the plaintiff could read lips.

Torres showed

the plaintiff “paperwork” regarding the incident, and J.O.
disputed its contents and reported that a police officer had
been threatening and abusive.

After Principal Drummond arrived,

the meeting ended inconclusively.

There was a hearing at the

Bronx Office of Student Suspensions & Hearings on October 9,
2014; it is not clear what occurred at that hearing.

The

plaintiff left a transcript of the hearing at Advocates for
Children with the understanding that Sheehan would review it and

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help the plaintiff in some way; apparently Sheehan did not do
so.
By order dated January 7, 2015, Chief Judge Preska: (1)
directed the plaintiff to amend his complaint to allege the
personal involvement of each defendant and to provide more facts
about what occurred; (2) dismissed the United States Department
of Education as a defendant because it had no apparent role in
the underlying events; and (3) explained that because Moya and
Sheehan were not state actors, Plaintiff could not state § 1983
claims against them.

After Plaintiff submitted an amended

complaint, which is not significantly different from his
original pleading, the case was reassigned to this Court.
DISCUSSION
Chief Judge Preska’s Order to Amend informed the plaintiff
that his complaint did not comply with federal pleading rules
because he had not explained what occurred or how each defendant
violated his rights.

Rule 8(a)(2) of the Federal Rules of Civil

Procedure requires “a short and plain statement of the claim
showing that the pleader is entitled to relief.”

“[T]hreadbare

recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.”

Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007)).

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The only defendant whose conduct was clear from the
original complaint was Torres, who allegedly denied the
plaintiff access to a sign language interpreter.

Chief Judge

Preska gave the plaintiff an opportunity to amend his complaint
and explained that the original pleading did not explain why
each defendant should be held liable for what allegedly
occurred.

However, the amended complaint is similarly

deficient.
In light of the information provided to the plaintiff in
the Order to Amend, the plaintiff was given the opportunity to
state a claim against the defendants, but has failed to do so
except for Torres.

Accordingly, the only defendant who remains

in the action is Torres.

The plaintiff may seek to file an

amended complaint if facts exist to state claims against the
other defendants.

In addition, although Chief Judge Preska

dismissed the United States Department of Education from the
action, that entity is listed as a defendant in the amended
complaint.

The United States Department of Education remains

dismissed from the action.
ORDER OF SERVICE
To allow the plaintiff, who is proceeding in forma
pauperis, to effect service on Assistant Principal Blanca Torres
Mutt through the United States Marshals Service, the Clerk of
Court is instructed to send the plaintiff one United States

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Marshals Service Process Receipt and Return form (“USM-285
form”).

Within thirty days of the date of this order, the

plaintiff must complete the USM-285 form and return it to the
Court.
If the plaintiff does not wish to use the Marshals Service
to effect service, the plaintiff must notify the Court in
writing within thirty days of the date of this order and request
that a summons be issued directly to the plaintiff.

If within

thirty days, the plaintiff has not returned the USM-285 forms or
requested a summons, under Rule 41(b) of the Federal Rules of
Civil Procedure, the Court may dismiss this action for failure
to prosecute.
Upon receipt of the completed USM-285 form, the Clerk of
Court shall issue a summons and deliver to the Marshals Service
all of the paperwork necessary for the Marshals Service to
effect service upon Blanca Torres Mutt.
No matter what method of service the plaintiff chooses, the
plaintiff must effect service within 120 days of the date the
summons is issued.

It is the plaintiff’s responsibility to

inquire of the Marshals Service as to whether service has been
made and if necessary, to request an extension of time for
service.
2012).

See Meilleur v. Strong, 682 F.3d 56, 63 (2d Cir.
If within 120 days of issuance of the summons, the

plaintiff has not made service or requested an extension of time

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in which to do so, under Rules 4(m) and 41(b) of the Federal
Rules of Civil Procedure, the Court may dismiss this action for
failure to prosecute.

Finally, it is the plaintiff’s obligation

to promptly submit a written notification to the Court if the
plaintiff’s address changes, and the Court may dismiss the
action if the plaintiff fails to do so.
CONCLUSION
With the exception of Blanca Torres Mutt, all defendants
are dismissed from the action without prejudice.

The Clerk of

Court is directed to send to the plaintiff one USM-285 Form.
The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that
any appeal from this order would not be taken in good faith, and
therefore in forma pauperis status is denied for the purpose of
an appeal.

See Coppedge v. United States, 369 U.S. 438, 444–45

(1962).
SO ORDERED.
Dated:

New York, New York
February 6, 2015

____________/s/_______________
John G. Koeltl
United States District Judge

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