Moore v. New York City Det. of Corrections et al
MEMORANDUM DECISION AND ORDER adopting 48 Report and Recommendations, granting 40 Motion to Dismiss, filed by Assistant Deputy Warden Renee Johnson, Michele Clifford, The City of New York, Nadine Pinnock, Assistant Deputy Warden Shon Bro wn, Stephen Wettenstein, New York City Department of Corrections, Patricia Le Goff. Having reviewed Magistrate Judge Cott's Report and Recommendation, this Court overrules Plaintiff's objection and adopts the Report in full. Defendants' motion to dismiss is GRANTED and Plaintiff is granted leave to file a fourth and final Amended Complaint. The Clerk is directed to close the motion at ECF No. 40. (Signed by Judge George B. Daniels on 3/20/2017) (tro)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-againstCITY OF NEW YORK, et al.,
15 Civ. 6600 (GBD) (JLC)
GEORGE B. DANIELS, United States District Judge:
Plaintiff Paul Moore, a retired Department of Correction ("DOC") employee, filed this
action against Defendants the City of New York, New York City Department of Correction, and
City employees Stephen Wettenstein, Michele Clifford, Nadine Pinnock, Patricia LeGoff, Shon
Brown, and Renee Johnson, in their individual and official capacities, claiming that Defendants
discriminated against him, subjected him to a hostile work environment, and retaliated against him
in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"); Title VI of the Civil Rights
Act of 1964 ("Title VI"); 42 U.S.C. § 1981 ("Section 1981 "); 42 U.S.C. § 1983 ("Section 1983");
42 U.S.C. § 1985 ("Section 1985"); 42 U.S.C. § 1986 ("Section 1986"); the Americans with
Disabilities Act of 1990 ("ADA"); 29 U.S.C. § 794 ("Rehabilitation Act"); N.Y. Exec. Law§ 296
('"NYSHRL"); and N.Y.C. Admin. Code §§ 8-101 et seq. ("NYCHRL").
(Third Am. Comp!.
("TAC"), ECF No. 39.) Defendants moved to partially dismiss the Third Amended Complaint.
(Defs.' Mot. to Dismiss ("Mot."), ECF Nos. 40-42.)
This matter was referred to Magistrate Judge James L. Cott. (ECF No. 11.) Before this
Court is Magistrate Judge Cott's Report and Recommendation ("Report," ECF No. 48),
recommending that this Court grant Defendants' motion to dismiss for failure to state a claim
pursuant to Rule l 2(b )(6), with leave to amend the Complaint. 1 (Id. at 1, 64.)
In his Report, Magistrate Judge Cott advised the parties that failure to file timely objections
to the Report would constitute a waiver of those objections on appeal. (Id. at 64-65); see also 28
U.S.C. § 636(b)(l); Fed. R. Civ. P. 72(b). Plaintiff filed a timely objection to the Report (Pl. Obj.
to Report ("Pl. Obj."), ECF No. 49) and Defendants filed a timely response to Plaintiff's objection
(Defs.' Resp. to Pl. Obj. ("Defs.' Resp."), ECF No. 50). This Court overrules Plaintiff's objection
and fully adopts Magistrate Judge Cott's recommendation. Defendants' motion to dismiss is
GRANTED with leave to amend.
I. LEGAL ST AND ARD
A district court may accept, reject or modify, in whole or in part, the findings and
recommendations set forth within the Report. See 28 U.S.C. § 636(b)(l)(C). When no objections
to the Report are made, the Court may adopt the Report if "there is no clear error on the face of
the record.'' Adee Motor Cars, LLC v. Amato, 388 F. Supp. 2d 250, 253 (S.D.N.Y. 2005) (citation
When there are objections to the Report, this Court must make a de nova determination as
to the objected-to portions of the Report. 28 U.S.C. § 636(b)(l)(C); see also Rivera v. Barnhart,
423 F. Supp. 2d 271, 273 (S.D.N.Y. 2006). It is sufficient that this Court "arrive at its own,
independent conclusions" regarding those portions to which objections were made. Nelson v.
Smith, 618 F. Supp. 1186, 1189-90 (S.D.N.Y. 1985) (internal citation omitted)); see United States
v. Raddatz, 447 U.S. 667, 675-76 (1980). However, where a litigant's objections are conclusory,
The relevant procedural and factual background is set forth in detail in the Report and is incorporated
repetitious, or perfunctory, the standard of review is clear error. McDonaugh v. Astrue, 672 F.
Supp. 2d 542, 54 7-48 (S.D.N. Y. 2009).
II. PLAINTIFF FAILS TO STATE A CLAIM
The Report properly held that Plaintiff failed to state a claim under Rule 12(b)(6) for
violations of Title VII, Title VI, Section 1981, Section 1983, ADA, Rehabilitation Act, and
NYSHRL. The Report also properly held that Plaintiff should be granted leave to file a fourth and
final Amended Complaint. There was no clear error in Magistrate Judge Cott's findings. Plaintiff
objected only to the portion of the Report concluding that Title I of the ADA, rather than Title II,
applies to Plaintiffs ADA claims. (Pl. Obj. at 4.) This court reviews that portion of the Report de
nova. See 28 U.S.C. § 636(b)(l)(C); see also Rivera, 423 F. Supp. 2d at 273.
Magistrate Judge Cott found that "Moore's claims fall squarely within the umbrella of Title
I and outside the confines of Title II." (Report at 44.) Accordingly, Magistrate Judge Cott
recommended that "Moore's Title II claim be dismissed with respect to all Defendants." (Report
The Second Circuit law is clear: the ADA "unambiguously limits employment
discrimination claims to Title I." 2 Mary Jo C. v. NY State & Local Ret. Sys., 707 F.3d 144, 171
(2d Cir. 2013) (affirming dismissal of a Title II claim against plaintiff's former employer for denial
of retirement benefits following termination for a disability and holding that plaintiff's exclusive
ADA remedy against her employer was under Title I). During his employment at the DOC,
Plaintiff was injured during an inmate cell extraction and was later granted "3/4 disability" to
accommodate his injuries.
85-86, 90.) Around the time of his retirement from the DOC,
Under Title I of the ADA, "[ n]o covered entity shall discriminate against a qualified individual on the
basis of disability in regard to job application procedures, the hiring, advancement, or discharge of
employees, employee compensation, job training, and other terms, conditions and privileges of
employment." 42 U .S.C. § l 2 l l 2(a).
Plaintiff applied for a pistol permit or "Good Guy Letter," which would allow him to continue to
carry a firearm as a retired officer if, inter alia, he did not suffer from any disabilities that would
adversely affect his ability to possess a firearm. (Id.
92-3, 97-8.) Plaintiff alleges that because
Defendants have ignored his request for the pistol permit or "Good Guy Letter," it has been
"essentially denied" without any "valid business justification" or "good-faith basis." (Id.
101-05.) Because Plaintiff brings this ADA claim against his former employer for allegedly
discriminating against him in denying him privileges as a retired correctional employee, Plaintiffs
claim is limited to Title I. Accordingly, Plaintiffs Title II claims are properly dismissed as to all
Having reviewed Magistrate Judge Cott's Report and Recommendation, this Court
overrules Plaintiffs objection and adopts the Report in full.
Defendants' motion to dismiss is GRANTED and Plaintiff is granted leave to file a fourth
and final Amended Complaint.
The Clerk of the Court is directed to close the motion at ECF No. 40 .
'Dated: New York, New York
M)!Jr2-B' 2B1 1
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