Garcia v. Kings County Hospital Center et al
OPINION AND ORDER: re: 26 FIRST MOTION to Dismiss the Complaint, filed by Melissa Walters, Kings County Hospital Center. For the reasons set forth above, Defendants motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) is GRANTED i n full. Plaintiff may file an amended complaint, if at all, by February 16, 2018. If an amended complaint is not filed by that date, the case will be closed. Furthermore, the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal f rom this Opinion and Order would not be taken in good faith; therefore, in forma pauperis status isdenied for purposes of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of Court is respectfully directed to terminate the motion, Doc. 26, and as further set forth in this order. (Signed by Judge Edgardo Ramos on 1/11/2018) (ap) Modified on 1/11/2018 (ap).
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
SHANEIS MARDIA GARCIA,
OPINION AND ORDER
16 Civ. 3151 (ER)
- against KINGS COUNTY HOSPITAL CENTER and
Pro se plaintiff Shaneis Mardia Garcia brings this action pursuant to the Americans with
Disabilities Act of 1990 (“ADA”) against Kings County Hospital Center and Melissa Walters,
alleging employment discrimination and retaliation on the basis of her disability. Before the
Court is Defendants’ motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).
For the reasons discussed below, Defendants’ motion to dismiss is GRANTED.
Plaintiff’s submissions are poorly written and poorly organized. However, the Court
remains obligated to construe a pro se complaint liberally, Hill v. Curcione, 657 F.3d 116, 122
(2d Cir. 2011), and to interpret a pro se plaintiff’s claims as raising the strongest arguments that
they suggest. Triestman v. Federal Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006). The
obligation to be lenient while reading a pro se plaintiff’s pleadings “applies with particular force
when the plaintiff’s civil rights are at issue.” Jackson v. N.Y.S. Department of Labor, 709 F.
Supp. 2d 218, 224 (S.D.N.Y. 2010) (citing McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir.
2004)). With these principles in mind, the Court accepts the following allegations from
Plaintiff’s complaint (“Compl.”) and Opposition to Defendants’ Motion to Dismiss 1 (“Pl.’s
Opp.”) as true for purposes of this motion. See Koch v. Christie’s International PLC, 699 F.3d
141, 145 (2d Cir. 2012); Vail v. City of New York, 68 F. Supp. 3d 412, 427 (S.D.N.Y. 2014)
(“Where new allegations in a pro se plaintiff’s opposition memoranda are consistent with the
allegations contained in the Complaint, they may be read as supplements to the pleadings.”)
(citation and internal quotation marks omitted). In addition, the Court considers Plaintiff’s
filings with the Equal Employment Opportunity Commission (“EEOC”). See Littlejohn v. City
of New York, 795 F.3d 297, 305 n.3 (2d Cir. 2015) (“In reviewing a Rule 12(b)(6) motion to
dismiss, ‘it is proper for this court to consider the plaintiff[’]s relevant filings with the EEOC and
other documents related to plaintiff’s claim, even if they are not attached to the complaint, so
long as those filings are either ‘incorporate[d] by reference’ or are ‘integral to’ and ‘solely
relie[d]’ upon by the complaint.”) (citation omitted).
Plaintiff was diagnosed with schizophrenia in 1997. Compl. at 72. 2 On October 6, 2014,
she was hired by the New York City Health + Hospitals to work as a Peer Counselor at Kings
County Hospital Center (“KCHC”). Compl. at 82. Plaintiff alleges that her supervisor, Melissa
Walters, mistreated and verbally abused her throughout her time at KCHC. See Compl. at 3, 5,
86. According to Plaintiff, Walters was aware of Plaintiff’s disability since the moment she was
hired. Pl.’s Opp. at 5. The complaint is in essence a chronology of contentious interactions
between Plaintiff and Walters from December 2014 to April 2016. See Compl. 8–47; Opp. at 5–
14. Plaintiff’s opposition to Defendants’ motion also primarily consists of the same factual
Plaintiff’s response to Defendants’ motion to dismiss was titled and docketed as a “Declaration.” See Doc. 29.
Because Plaintiff intended to file an opposition to the motion, the Court will refer to the document as such.
Due to Plaintiff’s failure to number the paragraphs, the Court will refer to the pagination of the complaint on the
ECF system. The Court will treat the complaint and attachment as a single document.
allegations. While too numerous to include here, the Court summarizes some of the alleged
interactions between Plaintiff and Walters for the sake of illustration:
Plaintiff alleges that in December 2014, Walters accused her of sitting in a room
doing nothing during work hours and told her that she was not “fit for the job.”
Compl. at 9; Pl.’s Opp. at 7.
Plaintiff alleges that in January 2015, Walters discredited her work ability “in an
abusive and cruel tone” and told her that she could not give her a good evaluation
because some of her colleagues had complained that she was dismissive and
belligerent. Compl. at 12; Pl.’s Opp. at 9. According to Plaintiff, Walters
approached her the following day and told her that people complained about her
lipstick color and that it was Walters’ responsibility to tell her if she was dressing
provocatively. Compl. at 13.
Plaintiff alleges that during an August 7, 2015 meeting about patients wearing
sleepwear during a visit from the Department of Justice, she expressed an opinion
and Walters angrily put her hand in her face and scolded her. Compl. at 86; Pl.’s
Opp. at 10.
Plaintiff contends that Walters’ behavior severely impacted her disability. See Pl.’s Opp.
at 3–4, 17–21. In particular, Plaintiff asserts that Walters’ emotionally abusive treatment of her
triggered a decline in her mental health, causing her to become violent and angry and preventing
her from being able to work. See id. On February 24, 2016, Plaintiff requested a four-week
leave of absence pursuant to the Family and Medical Leave Act (“FMLA”), claiming that she
was unable to perform her job functions as a result of her mental illness and would benefit from
taking time off from work. Compl. at 70–74. Plaintiff’s request was granted and her leave was
subsequently extended on two occasions after her psychiatrist informed KCHC that she was not
ready to return to work. See id. at 75–76. On March 21, 2016, she filed an application seeking
worker’s compensation benefits on the basis that Walters’ harassment and negative feedback
regarding her job performance had affected her physical and emotional health and overall wellbeing. Compl. at 77–78.
Plaintiff’s FMLA leave expired on June 28, 2016. See Pl.’s Opp. at 40. Plaintiff,
however, did not return to work. Id. KCHC sent her multiple letters informing her that she was
“Absent Without Official Leave” or “AWOL” and that she could be subject to disciplinary
action, including termination. See Pl.’s Opp. at 40–42. After two disciplinary hearings—which
Plaintiff did not attend despite having been provided notice—Plaintiff’s employment was
terminated on January 20, 2017, as a result of her failure to return to work after her FMLA leave
expired. See id. at 44–50. Plaintiff does not allege that her termination was discriminatory or
violated the ADA.
During her FMLA leave, Plaintiff filed a complaint with the EEOC alleging
discrimination on the basis of her disability on April 8, 2016, and the EEOC issued a dismissal
and right-to-sue letter on April 13, 2016. Id. at 6–7, 80–85. Plaintiff brought this action on April
27, 2016. Doc 2. Defendants moved to dismiss Plaintiff’s claims pursuant to Federal Rule of
Civil Procedure 12(b)(6) on March 21, 2017. Doc. 26.
When ruling on a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6),
the court must accept all factual allegations in the complaint as true and draw all reasonable
inferences in the plaintiff’s favor. Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (citation
omitted). The court is not required to credit “mere conclusory statements” or “threadbare recitals
of the elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)); see also id. at 681 (citing Twombly, 550 U.S.
at 551). “To survive a motion to dismiss, a complaint must contain sufficient factual matter . . .
to ‘state a claim to relief that is plausible on its face.’” Id. at 678 (quoting Twombly, 550 U.S. at
570). A claim is facially plausible “when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
(citing Twombly, 550 U.S. at 556). More specifically, the plaintiff must allege sufficient facts to
show “more than a sheer possibility that a defendant has acted unlawfully.” Id. If the plaintiff
has not “nudged [his] claims across the line from conceivable to plausible, [the] complaint must
be dismissed.” Twombly, 550 U.S. at 570; Iqbal, 556 U.S. at 680.
The question in a Rule 12 motion to dismiss “is not whether a plaintiff will ultimately
prevail but whether the claimant is entitled to offer evidence to support the claims.” Sikhs for
Justice v. Nath, 893 F. Supp. 2d 598, 615 (S.D.N.Y. 2012) (quoting Villager Pond, Inc. v. Town
of Darien, 56 F.3d 375, 278 (2d Cir. 1995)) (internal quotation marks omitted). “[T]he purpose
of Federal Rule of Civil Procedure 12(b)(6) ‘is to test, in a streamlined fashion, the formal
sufficiency of the plaintiff’s statement of a claim for relief without resolving a contest regarding
its substantive merits,’” and without regard for the weight of the evidence that might be offered
in support of Plaintiff’s claims. Halebian v. Berv, 644 F.3d 122, 130 (2d Cir. 2011) (quoting
Global Network Communications, Inc. v. City of New York, 458 F.3d 150, 155 (2d Cir. 2006)).
The same standard applies to motions to dismiss pro se complaints. See Zapolski v.
Federal Republic of Germany, 425 F. App’x 5, 6 (2d Cir. 2011). While the Court is duty-bound
to construe a pro se complaint liberally, Curcione, 657 F.3d at 122, “even pro se plaintiffs
asserting civil rights claims cannot withstand a motion to dismiss unless their pleadings contain
factual allegations sufficient to raise a right to relief above the speculative level. Jackson v.
N.Y.S. Department of Labor, 709 F. Supp. 2d 218, 224 (S.D.N.Y. 2010) (quoting Twombly, 550
U.S. at 555) (internal quotation marks omitted). A pro se plaintiff’s pleadings still must contain
“more than an unadorned, the defendant-unlawfully-harmed me accusation.” Iqbal, 566 U.S. at
678. A complaint that “tenders naked assertion[s] devoid of further enhancement” will not
suffice. Id. (quoting Twombly, 550 U.S. at 557) (internal quotation marks omitted); see also
Triestman, 470 F.3d at 477 (“[P]ro se status ‘does not exempt a party from compliance with
relevant rules of procedural and substantive law.’”) (quoting Traguth v. Zuck, 710 F.2d 90, 95
(2d Cir. 1983)). Additionally, “[a] district court deciding a motion to dismiss may consider
factual allegations made by a pro se party in his papers opposing the motion.” Walker v. Schult,
717 F.3d 119, 122 n.1 (2d Cir. 2013) (emphasis added).
Plaintiff alleges that Defendants violated the ADA by (1) discriminating against her by
failing to accommodate her disability and treating her unfairly, (2) retaliating against her for
trying to get a reasonable accommodation, and (3) creating a hostile work environment. See
Compl. at 3; Pl.’s Opp. at 1. At the outset, Defendants argue that Plaintiff’s ADA claims against
Walters must be dismissed because there is no individual liability under the ADA. Defs.’ Mem.
at 7. Defendants are correct. See, e.g., Spiegel v. Schulmann, 604 F.3d 72, 79 (2d Cir. 2010)
(“[I]n the context of employment discrimination, the retaliation provision of the ADA . . . cannot
provide for individual liability.”); Ivanov v. N.Y.C. Transit Authority, 13 Civ. 4280, 2014 WL
2600230, at *5 (S.D.N.Y. June 5, 2014) (“[A]n individual is . . . not an ‘employer’ under the
ADA and, therefore, may not be liable for disability discrimination.”); Nelson v. City of New
York, 11 Civ. 2732, 2013 WL 4437224, at *14 (S.D.N.Y. Aug. 19, 2013) (“It is well established
that there is no individual liability under the ADA . . . .”). Accordingly, Defendants’ motion to
dismiss Plaintiff’s claims against Walters is GRANTED.
The Court addresses Plaintiff’s claims against KCHC in turn.
A. ADA Discrimination Claim
The ADA prohibits discriminating against a person because of the disability of such
individual “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. § 12112(a). The ADA defines “discrimination” to include, inter alia,
“not making reasonable accommodations to the known physical or mental limitations of an
otherwise qualified individual with a disability who is an . . . employee, unless . . . [the
employer] can demonstrate that the accommodation would impose an undue hardship on the
operation of the . . . [employer’s business].” Id. § 12112(b)(5)(A). Employment discrimination
claims under the ADA are analyzed under the burden-shifting framework established by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Kovaco v.
Rockbestos, 834 F.3d 128, 136 (2d Cir. 2016). Under that framework, the plaintiff must first
establish a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802. Once the
plaintiff establishes a prima facie case, the burden shifts to the defendant to offer a legitimate,
nondiscriminatory reason for its actions. Id. at 802–03. If the defendant satisfies its burden, the
burden shifts back to the plaintiff to demonstrate that the proffered reason is pretextual. Id. at
803. Ultimately, the plaintiff will be required to prove that the defendant acted with
discriminatory motivation. See Littlejohn v. City of New York, 795 F.3d 297, 307 (2d Cir. 2015).
In order to establish a prima facie case of discrimination under the ADA, a plaintiff must
demonstrate that: (1) his employer is subject to the ADA; (2) he is disabled within the meaning
of the ADA; (3) he is otherwise qualified to perform the essential functions of his job with or
without reasonable accommodation; and (4) he suffered an adverse employment action because
of his disability. Rios v. Department of Education, 351 F. App’x 503, 505 (2d Cir. 2009) (citing
Jacques v. DiMarzio, Inc., 386 F.3d 192, 198 (2d Cir. 2004)). In the context of disability
discrimination arising from a failure to accommodate, a plaintiff must show that with reasonable
accommodation, he could perform the essential functions of the job at issue and that the
employer refused to make such accommodations. McBride v. BIC Consumer Products
Manufacturing Co., 583 F.3d 92, 97 (2d Cir. 2009) (quoting Rodal v. Anesthesia Group of
Onondaga, P. C., 369 F.3d 113, 118 (2d Cir.2004)) (internal quotation mark omitted).
Plaintiff’s ADA discrimination claim appears to rely on two separate theories. First, she
claims that Defendants failed to provide her with “any reasonable accommodations to provide
patient care or to teach patients how to actively live in the community.” Pl.’s Opp. at 1. Second,
Plaintiff claims in her opposition memorandum that she suffered disability discrimination when
Walters abused her in the workplace, casting many of the instances of mistreatment by Walters
previously alleged in her complaint as “adverse employment actions.” See Pl.’s Opp. at 6–14.
With respect to Plaintiff’s claim that Defendants failed to provide reasonable
accommodation, Defendants do not dispute the first three elements of the prima facie case (i.e.,
that KCHC is subject to the ADA, that Plaintiff is disabled within the meaning of the ADA, and
that she could perform the essential functions of her job with reasonable accommodation.).
Instead, they argue that Plaintiff’s claim fails because she does not allege that she ever requested
a reasonable accommodation or that she was ever refused a reasonable accommodation. Defs.’
Reply at 4. According to Defendants, because Plaintiff never requested an accommodation,
Defendants never had the opportunity to accommodate her. Id.
Taking all of her allegations as true, Plaintiff’s reasonable accommodation claim fails
because she does not allege that Defendants knew or should have known of the need for an
accommodation, and thus fails to allege that they refused an accommodation. The complaint and
opposition to Defendants’ motion contain no allegation, for example, that Plaintiff ever requested
an accommodation for her mental illness disability at any time. See, e.g., Dooley v. Jet Blue
Airways Corp., 636 Fed. App’x. 16, 18–19 (2d Cir. 2015) (“[A]n employer cannot refuse to
make an accommodation that it was never asked to make.”) (citations and internal quotation
marks omitted); Rosario v. City of New York, No. 11 Civ. 9008 (PAC) (SN), 2013 WL 782408,
at *10 (S.D.N.Y. Jan. 9, 2013) (dismissing failure to accommodate claim where plaintiff “[had]
not alleged that defendants were aware of the need for reasonable accommodation before his
request”), report and recommendation adopted, 2013 WL 782581 (S.D.N.Y. Mar. 1, 2013);
Canales-Jacobs v. N.Y. State Office of Court Administration, 640 F. Supp. 2d 482, 499–500
(S.D.N.Y. 2009) (collecting cases).
It is true that in cases in which the disability was known or obvious, and the employer
thus knew or reasonably should have known of the need for an accommodation, an employee
need not issue an express request for accommodation. See, e.g., Brady v. Wal-Mart Stores, Inc.,
531 F.3d 127, 135 (2d Cir. 2008); Felix v. N.Y.C. Transit Authority, 154 F. Supp. 2d 640, 657
(S.D.N.Y. 2001), aff’d, 324 F.3d 102 (2d Cir. 2003). Here, Plaintiff’s allegations do not support
an inference that Defendants knew or should have known that she required an accommodation.
While she alleges that Defendants knew about her mental illness, there is no indication that
Defendants were on notice that her difficulties at work and with her supervisor stemmed from
her disability. Plaintiff simply fails to allege that Defendants refused to provide reasonable
accommodation. See Jordan v. Forfeiture Support Associates., 928 F. Supp. 2d 588, 609
(E.D.N.Y. 2013) (dismissing accommodation claim where plaintiff failed to allege that “she
needed, requested, or was refused an accommodation”) (citation omitted); MacEntee v. IBM, 783
F. Supp. 2d 434, 444 (S.D.N.Y. 2011) (dismissing accommodation claim where allegations
showed defendant was “not given the opportunity to offer, or refuse” an accommodation and
“had no actual or constructive knowledge of the need for any accommodations”), aff’d, 471 Fed.
App’x. 49 (2d Cir. 2012); Maisonet v. Metropolitan Hospital & Health Hospital Corp., 640 F.
Supp. 2d 345, 350 (S.D.N.Y. 2009) (dismissing accommodation claim because complaint
contained “no factual allegations relating to a failure on the part of [defendants] to provide
reasonable accommodation for [plaintiff’s] alleged disability”). Accordingly, Defendants’
motion to dismiss Plaintiff’s reasonable accommodation claim is GRANTED.
With respect to Plaintiff’s claim that she suffered disability discrimination as a result of
Walters’ abuse and mistreatment, Defendants argue that Plaintiff’s discrimination claim must be
dismissed because she fails to allege that she suffered any adverse employment action because of
her disability. Defs.’ Mem. at 9; Defs.’ Reply at 8. Defendants also contend that Walters’
conduct and decisions regarding Plaintiff did not rise to the level of adverse employment
actions. 3 See Defs.’ Mem. at 10.
Plaintiff’s discrimination claim arising from Walters’ conduct fails because she does not
allege that Walters was motivated in any way by her schizophrenia. Throughout her complaint
and opposition memorandum, Plaintiff describes numerous times when Walters allegedly treated
her unfairly, gave her negative feedback, spoke to her in an abusive and cruel tone, and
reprimanded her. See Compl. at 8–29; Pl.’s Opp. at 6–14. She also asserts that Walters’
behavior impacted her physical health, emotional stability, and overall well-being, leaving her
unable to work. Compl. at 83, 86. However, she never alleges that Walters mistreated or abused
her because she was schizophrenic, and thus fails to allege a prima facie case of ADA
As stated above, Plaintiff does not appear to base her ADA discrimination claim on KCHC’s termination of her
employment. She does not dispute that she was terminated for failing to return to work after her FMLA leave
expired, thus a claim that her termination violated the ADA would fail in any event.
discrimination. Whether Plaintiff’s mental illness was exacerbated by Walters’ conduct or other
work-related stress is inconsequential to her claim that she suffered discrimination on account of
her mental illness. Accordingly, to the extent Plaintiff alleges that Walters’ abusive conduct
amounted to discrimination under the ADA, Defendants’ motion to dismiss is GRANTED.
B. ADA Retaliation Claim
The ADA prohibits, inter alia, retaliation against any individual who has asserted rights
under the ADA:
No person shall discriminate against any individual because such
individual has opposed any act or practice made unlawful by this
chapter or because such individual made a charge, testified, assisted,
or participated in any manner in an investigation, proceeding, or
hearing under this chapter.
42 U.S.C. § 12203(a). For an ADA retaliation claim to survive a motion to dismiss, a plaintiff
must plausibly allege that: (1) his employer took an adverse employment action against him, (2)
because he opposed an unlawful employment practice. Riddle v. Citigroup, 640 F. App’x 77, 79
(2d Cir. 2016) (citation and internal quotation marks omitted). To sufficiently plead causation,
the plaintiff must plausibly allege a connection between the adverse action and participation in
protected activity. Id. Furthermore, the plaintiff must allege that the retaliation was the “butfor” cause of the adverse action. Id.
Plaintiff refers to alleged retaliation only once in her pleading and submissions in this
action—she states at the beginning of her opposition memorandum that Defendants retaliated
against her for trying to get a reasonable accommodation. See Pl.’s Opp. at 1. Other than
cursorily alleging that Defendants “retaliated” against her, Plaintiff fails to identify any concrete
adverse employment actions taken against her as a result of a request for an accommodation.
She also fails to allege that her supposed request for an accommodation was the single
motivating factor of any actions taken against her. Moreover, her single statement that she
attempted to get a reasonable accommodation is conclusory at best—she does not provide any
factual allegations of how or when she requested an accommodation or what accommodation she
requested. Accordingly, her ADA retaliation claim fails to meet the pleading standard and
Defendants’ motion to dismiss is GRANTED.
ADA Hostile Work Environment Claim
Plaintiff brings a hostile work environment claim under the ADA based on Walters’
conduct. See Pl.’s Opp. at 3–5. As a threshold matter, the Second Circuit has not decided
whether a hostile work environment claim is cognizable under the ADA. See Robinson v.
Dibble, 613 Fed. App’x. 9, 13 n. 2 (2d Cir. 2015) (summ. order) (“We have not yet decided
whether a hostile work environment claim is cognizable under the ADA.”). District courts
within this Circuit, however, have recognized such claims, applying the same standard applicable
to hostile work environment claims under Title VII. See Christiansen v. Omnicom Group, Inc.,
167 F. Supp. 3d 598, 612–13 (S.D.N.Y. 2016), aff’d in part, rev’d in part, 852 F.3d 195 (2d Cir.
2017). The standard, however, is a “demanding one,” and a plaintiff must establish that the
alleged harassment was “offensive, pervasive, and continuous enough” to create an abusive
working environment. See, e.g., Monterroso v. Sullivan & Cromwell, LLP, 591 F. Supp. 2d 567,
584–85 (S.D.N.Y. 2008); Scott v. Memorial Sloan–Kettering Cancer Center, 190 F. Supp. 2d
590, 599 (S.D.N.Y. 2002). To succeed on a hostile work environment claim, “[t]he plaintiff
must show that the workplace was so severely permeated with discriminatory intimidation,
ridicule, and insult that the terms and conditions of [his] employment were thereby altered.”
Alfano v. Costello, 294 F.3d 365, 373 (2d Cir. 2002). Furthermore, a plaintiff must allege that
she was subjected to hostility because of her membership in a protected class. MacEntee, 783 F.
Supp. 2d at 445 (quoting Brennan v. Metropolitan Opera Association, 192 F.3d 310, 318 (2d
Defendants contend that Plaintiff’s hostile work environment claim should be dismissed
because she fails to provide a single example of how Walters harassed her because of her
disability. The Court agrees. As stated above with respect to Plaintiff’s discrimination claim,
she never alleges that Walters mistreated or abused her because she was schizophrenic.
Workplace harassment is only actionable under the ADA if it was motivated by a plaintiff’s
disability. See id. Accordingly, Plaintiff fails to sufficiently plead a hostile work environment
claim under the ADA and Defendants’ motion to dismiss is GRANTED.
Leave to Amend
The Second Circuit has instructed Courts not to dismiss a complaint “without granting
leave to amend at least once when a liberal reading of the complaint gives any indication that a
valid claim might be stated.” Shabazz v. Bezio, 511 F. App’x 28, 31 (2d Cir. 2013) (quoting
Shomo v. City of New York, 579 F.3d 176, 183 (2d Cir. 2009)) (internal quotation marks
omitted). As it is not apparent that any further opportunity to amend would be futile, the Court
dismisses Plaintiff’s claims without prejudice.
For the reasons set forth above, Defendants’ motion to dismiss pursuant to Federal Rule
of Civil Procedure 12(b)(6) is GRANTED in full. Plaintiff may file an amended complaint, if at
all, by February 16, 2018. If an amended complaint is not filed by that date, the case will be
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