Thomas v. Thurston et al
Filing
26
OPINION AND ORDER: re: 21 MOTION to Dismiss the Second Amended Complaint filed by Jeff Thurston. For the foregoing reasons, the motion to dismiss is granted without prejudice and with leave to amend. If Thomas chooses to file an amended complaint, he must do so no later than July 10, 2019. The Clerk of Court is respectfully directed to terminate the motion pending at docketentry 21. SO ORDERED., ( Amended Pleadings due by 7/10/2019.) (Signed by Judge Ronnie Abrams on 6/10/2019) (ama)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
USDC-SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#:
DATE FILED:
(pf to/ to'"
CAZE D. THOMAS,
Plaintiff,
No. 18-CV-4007 (RA)
V.
OPINION & ORDER
JEFF THURSTON,
Defendant.
RONNIE ABRAMS, United States District Judge:
Plaintiff Caze D. Thomas, proceeding pro se, brings this action against Defendant Jeff
Thurston, a superintendent of Plaintiffs former employer, Five Star Electric Corporation. Thomas
alleges that, while employed at Five Star Electric, he was subjected to harassment, discrimination,
and a hostile work environment because of his sex and sexual orientation. He further alleges that
he was wrongfully terminated in retaliation for complaining about the harassment. Before the
Court is Thurston's motion to dismiss the Second Amended Complaint (the "Complaint") pursuant
to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons that follow, the motion
is granted.
BACKGROUND
Thomas initiated this action on May 4, 2018, alleging that Defendant Jeff Thurston, along
with a second defendant, engaged in a "conspiracy that aimed to violate [Thomas's] civil rights,
human rights, and pursuit of happiness," through, among other things, harassing him,
discriminating against him, and wrongfully terminating him. Thomas subsequently amended his
complaint to remove the second defendant, leaving Thurston as the sole remaining defendant in
this action. Thomas alleges that Thurston discriminated against him based on his sex and sexual
orientation, specifically through his involvement in terminating Thomas's employment. He brings
claims against Thurston "under any and all laws, writs, standards, statutes, and clauses that may
apply," including the Equal Protection Clause of the United States Constitution. Thomas asserts
claims against Thurston exclusively under federal law. Dkt. 24.
STANDARD OF REVIEW
"To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to 'state a claim to relief that is plausible on its face."' Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell At/. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "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." Id. On a motion to
dismiss, the Court accepts as true the factual allegations in the complaint and draws all reasonable
inferences in the plaintiff's favor. "Where, as here, the complaint was filed pro se, it must be
construed liberally to raise the strongest arguments it suggests." Nielsen v. Rabin, 746 F.3d 58, 63
(2d Cir. 2014).
DISCUSSION
Although Thomas does not identify the specific federal laws under which his claims arise,
a liberal construction of the Complaint suggests that Thomas asserts (1) employment
discrimination claims under Title VII of the Civil Rights Act of 1964, and (2) claims under 42
U.S.C. § 1983 for violations of Thomas's constitutional rights. Thurston moves to dismiss the
Complaint on the ground that neither cause of action may brought against Thurston, who--as a
private individual-may neither be held personally liable under Title VII nor be sued as a state
actor under § 1983.
2
The Court agrees. As Thurston correctly notes, "Title VII does not impose liability on
individuals." Lore v. City a/Syracuse, 670 F.3d 127, 169 (2d Cir. 2012). In addition, claims under
§ 1983 may be brought only against persons "acting under color of state law."
Milan v.
Wertheimer, 808 F.3d 961,964 (2d Cir. 2015). The Complaint identifies Thurston as an individual
employed by Five Star Electric; it contains no factual allegations suggesting that Thurston behaved
as a state actor during his alleged involvement in Thomas's termination.
Accordingly, the
Complaint must be dismissed. See, e.g., Davis-Bell v. Columbia Univ., 851 F. Supp. 2d 650, 687
(S.D.N.Y. 2012); Contes v. City of New York, 99-CV-1597, 1999 WL 500140, at *4 (S.D.N.Y.
July 14, 1999).
If Thomas has a good faith basis to amend his Complaint, he may do so no later than 30
days from the date of the filing of this opinion. See Grullon v. City ofNew Haven, 720 F.3d 133,
139 (2d Cir. 2013) ("A prose complaint should not be dismissed without the Court's granting
leave to amend at least once when a liberal reading of the complaint gives any indication that a
valid claim might be stated.") (internal quotation marks and brackets omitted).
Thomas is
cautioned, however, that if he chooses to amend his complaint but fails to allege facts sufficient to
correct the deficiencies identified in this opinion, the action will be dismissed with prejudice and
without leave to further re-plead. Thomas is advised that, if he would like to obtain assistance
with this case, he may contact the New York Legal Assistance Group ("NYLAG") Legal Clinic
for Pro Se Litigants in the Southern District of New York. A flier containing information about
the NYLAG clinic is attached to this opinion.
3
CONCLUSION
For the foregoing reasons, the motion to dismiss is granted without prejudice and with
leave to amend. If Thomas chooses to file an amended complaint, he must do so no later than July
10, 2019. The Clerk of Court is respectfully directed to terminate the motion pending at docket
entry 21.
SO ORDERED.
Dated:
June 10, 2019
New York, New York
Ronme Abrams
United States District Judge
4
Since 1990, NYLAG has provided free civil legal services
to New Yorkers who cannot afford private attorneys.
NEW YORK LEGAL ASSISTANCE GROUP
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and White Plains
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attorneys and paralegals to assist those
who are representing themselves or
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To make an appointment for a
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come by either clinic during office
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New York, NY I0007 •·•
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;m
The clinic offers in-person
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