Thomas v. Thurston et al

Filing 37

MEMORANDUM OPINION & ORDER re: 28 MOTION for Reconsideration re; 26 Memorandum & Opinion filed by Caze D. Thomas, 29 MOTION to Dismiss the Third Amended Complaint (ECF Doc. No. 27) filed by Jeff Thurston. For the reas ons set forth above, Thurston's motion to dismiss the Third Amended Complaint is granted. Because the Court previously warned Plaintiff that his claims would be dismissed with prejudice and without leave to further re-plead if he chose to file an amended complaint, Plaintiff's complaint is now dismissed with prejudice. Furthermore, Plaintiff's motion for reconsideration is denied. The Clerk of Court is respectfully directed to terminate the motions pending at Dkts. 28 and 29, mail a copy of this Order to Plaintiff, and close this case. (Signed by Judge Ronnie Abrams on 3/6/2020) (mro) Transmission to Docket Assistant Clerk for processing. Transmission to Orders and Judgments Clerk for processing.

USDC-SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#:
DATE FILED:

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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CAZE D. THOMAS,
Plaintiff,

No. 18-CV-4007 (RA)

V.

MEMORANDUM OPINION & ORDER

JEFF THURSTON,
Defendant.

RO~1NIE ABRAMS, United States District Judge:
Plaintiff Caze D. Thomas, proceeding pro se, filed this action against Defendant Jeff
Thurston, a supervisor at his former employer, Five Star Electric Corporation. On June 10, 2019,
this Court granted Thurston's motion to dismiss the Second Amended Complaint, Dkt. 18,
pursuant to Federal Rule of Civil Procedure 12(b)( 6), but permitted Plaintiff to amend. Now before
the Court is Thurston's motion to dismiss the Third Amended Complaint, Dkt. 27, as well as
Plaintiffs motion for reconsideration as to the June 10th Order. For the following reasons,
Thurston's motion is granted, and Plaintiff's motion is denied.

BACKGROUND
Plaintiff 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 [Plaintiffs] civil rights,
human rights, and pursuit of happiness" by, among other things, harassing him, discriminating
against him, and wrongfully terminating him. Dkt. 1 at 5. On January 15, 2019, Plaintiff amended
his complaint to remove the second defendant, leaving Thurston as the sole remaining defendant
in this action. Dkt. 18 (the "Second Amended Complaint" or "SAC"). Plaintiff alleges that
Thurston discriminated against him on the basis of his sex and sexual orientation, specifically

through his involvement in terminating Plaintiffs employment. Plaintiff brings claims against
Thurston under "any and all laws, regulations, and statutes that may apply." SAC at 9.
On February 6, 2019, Thurston moved to dismiss the SAC under Rule 12(b)(6). Dkt. 21.
On February 21,2019, Plaintiff filed his opposition, clarifying that he was asserting claims against

Thurston exclusively under federal law. Dkt. 24. In an opinion dated June 10, 2019, the Court
granted Thurston's motion to dismiss. Dkt. 26 (the "Order"). Noting that Plaintiff had not
identified the specific federal laws under which his claims against Thurston arise, the Court
construed his complaint liberally and assumed that he intended to assert claims under Title VII of
the Civil Rights Act of 1964 and 42 U.S.C. § I983. See Order at 2. The Court, however, concluded
that Plaintiff could not sustain claims against Thurston under either statute. Specifically, his claims
under Title VII failed because Title VII does not impose liability on individuals, and his claims
under Section 1983 failed because those claims may be brought only against state actors and the
SAC "contain[ed] no factual allegations suggesting that Thurston behaved as a state actor." Id at
3. The Court granted Plaintiff leave to amend so long as he had a good faith basis to do so, and
cautioned that if he chooses to amend his complaint but fails to allege facts sufficient to correct
the deficiencies identified in the Order, this action would be dismissed with prejudice. Id
On July 10, 2019, Plaintiff timely filed a Third Amended Complaint (the "TAC"). See
Dkt. 27 .1 That same day, Plaintiff also filed a motion for reconsideration as to the Order. Dkt. 28.
In the TAC, Plaintiff asserts that Thurston "committed hate crimes against [him]," engaged in a
"conspiracy with the intentions/actions of violating hate crime laws" along with a "conspiracy with
the intention to inflict emotionally [sic] distress," causing him "humiliation to the point of
triggering dysphoria." TAC at 2.

1 Although the TAC is labeled "2nd Amended Complaint," the Court refers to it as the Third Amended Complaint or
TAC in order to avoid confusion with the Second Amended Complaint, Diet. 18.

2

On July 25, 2019, Thurston moved to dismiss the TAC. Dkt. 29. Plaintiff filed his
opposition on August 7, 2019, Dkt. 32, and on August 14 and 16, 2019, Plaintiff filed additional
documents in connection with his opposition. Dkts. 34, 35. On August 9, 2019, Thurston filed a
letter indicating that he did not intend to file a reply brief. Dkt. 33.
DISCUSSION

I.

Thurston's Motion to Dismiss
To survive a motion to dismiss under Federal Rule of Civil Procedure l 2(b )( 6), a complaint

must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. 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." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). On a motion to dismiss,
the Court must "accept[] all factual allegations as true, but 'giv[e] no effect to legal conclusions
couched as factual allegations."' Stadnick v. Vivint Solar, Inc., 861 F.3d 31, 35 (2d Cir. 2017)
(quoting Starr v. Sony BMG Music Entm't, 592 F.3d 314, 321 (2d Cir. 2010)). Courts must
"liberally construe pleadings and briefs submitted by pro se litigants, reading such submissions to
raise the strongest arguments they suggest." McLeodv. Jewish Guild/or the Blind, 864 F.3d 154,
156 (2d Cir. 2017) (quoting Bertin v. United States, 478 F.3d 489, 491 (2d Cir. 2007)). But even

prose litigants must "state a claim to relief that is plausible on its face." Mancuso v. Hynes, 379
F. App'x 60, 61 (2d Cir. 2010) (citations omitted).
As an initial matter, the TAC is virtually identical to the SAC. Indeed, as Thurston points
out, pages 8-39 of the TAC are identical to pages 8-39 of the SAC. Moreover, page 40 of the TAC
is the same as page 1 of the SAC, and page 41 of the TAC is the same as page 3 of Plaintiff's
motion for reconsideration. Although pages 1 through 7 of the TAC are technically new, they
nonetheless fail to adequately allege any facts sufficient to sustain Plaintiff's federal claims against
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Thurston. Plaintiff also repeatedly writes "see attached" throughout these pages, presumably
referring to pages 8 through 41 and the allegations asserted therein.
Like the SAC, the TAC does not identify the specific federal laws under which Plaintiff's
claims against Thurston arise. Construing the TAC liberally in light of Plaintiffs pro se status,
however, he appears to be seeking relief under Title VII, the Age Discrimination in Employment
Act ("ADEA''), 42 U.S.C. § 1981, 42 U.S.C. § 1983, and/or 18 U.S.C. § 249(a), the federal
criminal hate crime statute. As to his claims under Title VII and Section 1983, Plaintiff has not
pleaded facts sufficient to cure the deficiencies identified in the Order, and these claims are
therefore dismissed for the same reasons previously articulated. See Order at 2-3.
Plaintiffs claims under the ADEA, Section 1981, and Section 249(a) must also be
dismissed. First, like Title VII, individuals cannot be held liable under the ADEA. See Guerra v.
Jones, 421 F. App'x 15, 17 (2d Cir. 2011); Scalercio-Isenberg v. Morgan Stanley Servs. Grp. Inc.,

No. 19-CV-6034 (JPO), 2019 WL 6916099, at *7 (S.D.N.Y. Dec. 19, 2019). Second, Section
1981 does not apply to claims of discrimination based on sex or sexual orientation, as Plaintiff
asserts here. See Dombrowski v. City ofNew York, 116 F.3d 465 (2d Cir. 1997) ("[D]iscrimination
on the basis of sex ... is not cognizable under [Section 1981]."); Guanipa v. Bloomingdale 's Dep 't
Stores, No. 98 Civ. 5701 LMM, 2000 WL 1772805, at *1 (S.D.N.Y. Nov. 30, 2000)

("Discrimination on the basis of sexual orientation, however, is not prohibited under Section
1981."); see also Zemsky v. City ofNew York, 821 F.2d 148, 150 (2d Cir. 1987) ("A plaintiff states
a viable cause of action under Section 1981 ... only by alleging a deprivation of his rights on
account of his race, ancestry, or ethnic characteristics."). Finally, although "[f]ederal law does
prohibit the commission of 'hate crimes"' under 18 U.S.C. § 249(a), "this law is a criminal statute
that cannot be enforced by a private party in a civil action such as this." Lorenz v. Managing Dir.,

4

St. Luke's Hosp., No. 09 Civ. 8898 (DAB) (JCF), 2010 WL 4922267, at *8 (S.D.N.Y. Nov. 5,
2010), report and recommendation adopted, No. 09 Civ. 8898 (DAB), 2010 WL 4922541
(S.D.N.Y. Dec. 2, 2010); see also Pierce v. N. Y State Police (Troop D Lowville), No. 05-CV-1477
(GHL), 2011 WL 1315485, at *7 (N.D.N.Y. Apr. 4, 2011) ("[T]he federal criminal hate crime
statute, 18 U.S.C. § 249(a), does not create a private right of action.") (citations omitted).
In sum, Plaintiff's claims against Thurston under Title VII, the ADEA, Section 1981,
Section 1983, and Section 249(a) fail as a matter of law. Thurston's motion to dismiss the TAC
is therefore granted.
II.

Plaintiff's Motion for Reconsideration

Reconsideration of a court's previous order is an "extraordinary remedy to be employed
sparingly in the interests of finality and conservation of scarce judicial resources." In re Health

Mgmt. Sys., Inc. Sec. Litig., 113

Supp. 2d 613, 614 (S.D.N.Y. 2000) (citation omitted). To

prevail on a motion for reconsideration, the movant must identify "an intervening change in
controlling law, the availability of new evidence, or the need to correct a clear error or prevent
manifest injustice." Virgin At!. Airways, Ltd v. Nat'! Mediation Bd, 956 F.2d 1245, 1255 (2d Cir.
1992) (citation omitted). The standard "is strict, and reconsideration will generally be denied
unless the moving party can point to controlling decisions or data that the court overlooked."

Compunnel Software Grp., Inc. v. Gupta, No. 14-CV-4790 (RA), 2019 WL 2174085, at *2
(S.D.N.Y. May 20, 2019) (quoting Bldg. Serv. 32BJ Health Fund v. GCA Servs. Grp., Inc., No.
15-CV-6114 (PAE), 2017 WL 1283843, at *1 (S.D.N.Y. Apr. 5, 2017)); see also Shrader v.

CSXTransp., Inc., 70 F.3d 255,257 (2d Cir. 1995) ("[A] motion to reconsider should not be granted
where the moving party seeks solely to relitigate an issue already decided."). "The decision to
grant or deny a motion for reconsideration is within the sound discretion of the district court."

Corines v. Am. Physicians Ins. Tr., 769 F. Supp. 2d 584,594 (S.D.N.Y. 2011).
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Even construing Plaintiff's motion liberally, he does not assert any "intervening change in
controlling law," new evidence, or "need to correct a clear error or prevent manifest injustice."
Rather, Plaintiff cites a Fordham Law Review article from 1994 regarding liability under Title VII
and the ADEA, as well as an unidentified "more recent case" from the Eastern District of
Pennsylvania that apparently allowed a Section 1981 race discrimination claim to proceed against
an individual. See Mot. for Recon., Dkt. 28, at 3. Neither of these authorities persuades the Court
to revisit the conclusions in its prior Order. Accordingly, Plaintiff's motion for reconsideration is
denied.
CONCLUSION

For the reasons set forth above, Thurston's motion to dismiss the Third Amended
Complaint is granted. Because the Court previously warned Plaintiff that his claims would be
dismissed with prejudice and without leave to further re-plead if he chose to file an amended
complaint, Plaintiff's complaint is now dismissed with prejudice. Furthermore, Plaintiff's motion
for reconsideration is denied.
The Clerk of Court is respectfully directed to terminate the motions pending at Dkts. 28
and 29, mail a copy of this Order to Plaintiff, and close this case.
SO ORDERED.
Dated:

March 6, 2020
New York, New York

Ro~
United States District Judge

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