McGrady v. New York State et al
DECISION AND ORDER: For the reasons stated in the decision and order, the GCC defendants' motion to dismiss, Docket Item 9 , will be granted unless McGrady amends her complaint, within 45 days, to correct the deficiencies noted above. No later than 30 days after any amended complaint is filed, the defendants may answer, move against, or otherwise respond to the amended complaint. If McGrady does not file an amended complaint within 45 days, her claims against the GCC defendants will be dis missed, and the Clerk of the Court shall terminate GCC, Provenzo, Welch, Chaya, and Alicea-Maldonado as defendants without further order. SO ORDERED. Issued by Hon. Lawrence J. Vilardo on 7/29/2022. (EK) (Chambers has mailed a copy of the decision and order to the pro se plaintiff.)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DECISION & ORDER
NEW YORK STATE, et al.,
On June 3, 2021, the pro se plaintiff, Gabrielle McGrady, commenced this action
under 42 U.S.C. § 1983 alleging that New York State, the State University of New York,
Genesee Community College (“GCC”), and several GCC faculty members violated her
rights to equal protection and due process. Docket Item 1. On September 30, 2021,
GCC; the Clinical Educational Coordinator for GCC’s Respiratory Care Program, Amy
Provenzo; GCC’s Director of Respiratory Care, Maureen Welch; GCC’s Dean of
Students, Patty Chaya; and GCC’s Dean of Math, Science, and Career Education, Dr.
Rafael Alicea-Maldonado, (collectively, the “GCC defendants”) moved to dismiss the
claims against them. Docket Item 9. After two extensions of time, see Docket Items 14,
16, McGrady responded on March 15, 2022. Docket Item 17. About three weeks later,
the GCC defendants replied. Docket Item 18.
For the following reasons, the GCC defendants’ motion to dismiss will be granted
unless McGrady amends her complaint to correct the deficiencies noted below.
FACTUAL BACKGROUND 1
McGrady was a student in the Respiratory Care Program at GCC from late 2018
until October 2020. Docket Item 1 at 4; Docket Item 9-5 at 2, 5. The Respiratory Care
Program consists of four semesters; students participate in clinical rotations during the
third and fourth semesters. Docket Item 17 at 4. During her third semester, McGrady
was assigned rotations at two clinical sites: Rochester General Hospital (“Rochester
General”) and Sisters of Charity Hospital (“Sisters”). Id. McGrady completed her
On a motion to dismiss, the Court “accept[s] all factual allegations as true and
draw[s] all reasonable inferences in favor of the plaintiff.” Trs. of Upstate N.Y. Eng’rs
Pension Fund v. Ivy Asset Mgmt., 843 F.3d 561, 566 (2d Cir. 2016). McGrady’s
compliant itself is sparse, see Docket Item 1, but she offers further allegations in her
response, see Docket Item 17. Normally, a court “will not consider [ ] factual allegations
raised for the first time in a brief in opposition to a motion to dismiss.” Harrell v. N.Y.
State Dep’t of Corr. & Cmty. Supervision, 2019 WL 3817190, at *2 n.3 (S.D.N.Y. Aug.
14, 2019). Because McGrady is proceeding pro se, however, the Court considers those
allegations. See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)
(submissions of pro se litigants must be construed liberally and interpreted to raise the
strongest arguments that they suggest).
The Court also may consider any “documents . . . in [the] plaintiff[’s] possession
or of which [the] plaintiff[ ] had knowledge and relied on in bringing suit,” Brass v. Am.
Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993), as well as any written documents
that are attached to a complaint, incorporated by reference, or integral to it, Sira v.
Morton, 380 F.3d 57, 67 (2d Cir. 2004). Here, McGrady attached her amended New
York State Division of Human Rights (“NYSDHR”) administrative complaint, see Docket
Item 1 at 10-11, and the NYSDHR determination of no probable cause, see id. at 7-9, to
her complaint, and she refers to the NYSDHR proceedings and “emails and other
writings” that the defendants “created” after her dismissal from GCC, see Docket Item
17 at 2-3. The GCC defendants attached several documents to their motion to dismiss,
and those documents appear to be those to which McGrady refers, including McGrady’s
initial NYSDHR complaint, see Docket Item 9-2, McGrady’s response in the NYSDHR
proceedings, see Docket Item 9-5 at 2-27, and “emails” that were sent to McGrady
before and after her dismissal, see Docket Item 9-3 at 9-16. The Court therefore
considers all those documents—that is, the NYSDHR amended complaint, the
NYSDHR complaint, McGrady’s response in the NYSDHR proceedings, the NYSDHR
determination of no probable cause, and the emails sent to McGrady—on the motion to
rotation at Rochester General and began her rotation at Sisters. Id. But in October
2020, before McGrady could complete her Sisters rotation, GCC dismissed McGrady
from the program. Id.
The dismissal process began on October 14, 2020, when Provenzo emailed
McGrady and asked her to meet to discuss concerns about McGrady’s performance at
Rochester General and Sisters. Docket Item 9-5 at 5; see Docket Item 9-3 at 9. Five
days later, on “[McGrady’s] second to last day of [her] clinical rotation at Sisters,”
McGrady met with Provenzo, Welch, and Chaya regarding “adverse” performance
issues and McGrady’s “underperformance” in her clinical rotations. Docket Item 17 at 4;
Docket Item 9-5 at 5. “After that meeting[,] [McGrady] was dismissed from the
program,” Docket Item 17 at 4, and she suspects that her dismissal was due to the GCC
defendants’ “personal feelings” about her, Docket Item 1 at 4. McGrady appealed her
decision to Alicea-Maldonado, who sustained the decision to dismiss McGrady. Docket
Item 9-3 at 13. The GCC defendants “created” documents after the meeting to
“support their decision to dismiss [McGrady].” Docket Item 17 at 3.
During the dismissal proceedings, McGrady “was not given an opportunity to
present the merits of her case,” Docket Item 1 at 4, or “to present [her] own evidence,”
Docket Item 17 at 3. The GCC defendants, on the other hand, “presented false
evidence . . . that was not memorialized at the time of the incident.” Docket Item 1 at 4.
What is more, the GCC Student Handbook “entitle[d] [McGrady] to . . . process before
dismissal,” Docket Item 17 at 3, and the GCC defendants did not follow proper “policy
an[d] procedure” in dismissing her from the program, Docket Item 1 at 4.
Before the dismissal, McGrady did not receive any “write[-]up or any type of
disciplinary action.” Docket Item 17 at 4. And other than in the meeting with Provenzo,
Welch, and Chaya, McGrady “was never notified of any wrongdoing, insufficient
performance[,] or failures to follow protocol, policies[,] and procedures.” Id. at 3. On the
contrary, the feedback McGrady received from her professors was positive. In fact,
McGrady completed “weekly journals” about her clinical rotations, and her professors
responded with positive comments. See id. at 4; Docket Item 9-5 at 13-17.
The dismissal letter, sent to McGrady on October 26, 2020, details the GCC
defendants’ proffered reasons for dismissing McGrady. See Docket Item 9-3 at 13-16.
The letter states that McGrady was dismissed for arriving late to her clinical site, being
absent from her clinical rotation without an excuse, failing to notify a clinical site that she
would be late or absent, behaving unprofessionally, taking extended breaks, and
following unsafe practices in patient care. See id. When she was dismissed from the
program, McGrady also had criminal charges pending against her. Docket Item 17 at 56.
After McGrady’s dismissal from the Respiratory Care Program, she filed a
complaint with the NYSDHR alleging that the GCC defendants discriminated against her
because of race and sex. Docket Item 1 at 10 (amended NYSDHR complaint); Docket
Item 9-2 at 2-4 (NYSDHR complaint).
“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 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.” Id. (citing Twombly, 550 U.S. at 556). “The plausibility standard is
not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a
defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556).
PROCEDURAL DUE PROCESS CLAIM
McGrady argues that the GCC defendants violated her right to procedural due
process under the Fourteen Amendment. 2 See Docket Item 17 at 3-5. To state a claim
for denial of procedural due process, a plaintiff must allege that (1) she was deprived of
a “liberty” or “property” interest, see Bd. of Regents of State Colls. v. Roth, 408 U.S.
564, 571 (1972); and (2) the process provided to her was constitutionally inadequate,
see Zinermon, 494 U.S. at 126.
In the complaint, McGrady also asserts that the defendants violated her
“substantive due process” rights. See, e.g., Docket Item 1 at 4 (alleging that she was
“not given an opportunity to present the merits of her case within the proceedings which
affected the fundamental fa[i]rness and substantive due process rights”). But a claim
about the fairness of the procedures used to deny a property right sounds in procedural,
not substantive, due process. See Wolff v. State Univ. of N.Y. Coll. at Cortland, 2016
WL 9022503, at *16 (N.D.N.Y. Feb. 5, 2016), aff’d sub nom., 678 F. App’x 4 (2d Cir.
2017) (Procedural due process protects against “the deprivation by government action
of a constitutionally protected interest without sufficient procedural safeguards, such as
a hearing” whereas as substantive due process protects against “certain arbitrary,
wrongful government actions regardless of the fairness of the procedures used to
implement them.” (citing Zinermon v. Burch, 494 U.S. 113, 125 (1990))). Because
McGrady complains about the fairness of the procedures used to dismiss her, she
asserts that her right to procedural due process, not substantive due process, was
New York law recognizes “an ‘implied contract’ between [a college or university]
and its students,” which requires the “academic institution [to] act in good faith in its
dealing with its students.” Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991)
(alterations in original) (quoting Olsson v. Bd. of Higher Educ., 49 N.Y.2d 408, 414, 402
N.E.2d 1150, 1153 (1980)). “Such an implied contract”—that is, one “recognized under
state law”—gives rise to a property interest “entitled to constitutional protection.” Id. So
McGrady has a property interest in her dealings with GCC, and she therefore has stated
the first element of a procedural due process claim.
The amount of process that a student is owed before dismissal from a college or
university depends on whether the dismissal “was disciplinary or academic in nature.”
Sutton v. Stony Brook Univ., 2020 WL 6532937, at *15 (E.D.N.Y. Nov. 5, 2020). In the
context of an academic dismissal, a student is afforded adequate process “where (1)
the school has ‘fully informed [the student] of the faculty’s dissatisfaction with [the
student’s] progress and the danger that this posed to timely graduation and continued
enrollment,’ and (2) ‘[t]he ultimate decision to dismiss [the student] was careful and
deliberate.’” Dean v. Univ. at Buffalo Sch. of Med. & Biomedical Scis., 804 F.3d 178,
191 (2d Cir. 2015) (alterations in original) (quoting Bd. of Curators of Univ. of Mo. v.
Horowitz, 435 U.S. 78, 85 (1978)).
A student dismissed for disciplinary reasons, however, is entitled greater
process. See id. (noting that the procedural requirements for academic dismissals are
“far less stringent” than those required for disciplinary dismissals). Disciplinary
dismissals require that the student receive “oral or written notice of the charges against
[her] and, if [s]he denies them, an explanation of the evidence the authorities have and
an opportunity to present h[er] side of the story.” Horowitz, 435 U.S. at 85 (quoting
Goss v. Lopez, 419 U.S. 565, 581 (1975)). But even disciplinary dismissals do not
require that a school provide the student with a formal hearing before dismissal; rather,
an “informal give-and-take” between the student and the school that “give[s] the student
‘the opportunity to characterize h[er] conduct and put it in what [s]he deems the proper
context’” is sufficient. Id. at 85-86 (quoting Goss, 419 U.S. at 584).
McGrady’s response does not address whether she claims that her dismissal
was based on academic or disciplinary reasons. See Docket Item 17. And the GCC
defendants’ papers also are unclear on that point. Compare Docket Item 9-9 (GCC
defendants’ memorandum of law) at 8 (characterizing McGrady’s dismissal as
“academic”), with Docket Item 18 (GCC defendants’ reply memorandum of law) at 5
(characterizing McGrady’s dismissal as based on “issues [that] were behavioral in
nature[,] not academic”). That confusion is understandable because “the line between
academic and disciplinary decisions is not always clear.” See Wolff, 2016 WL 9022503,
“[C]ourts have considered a dismissal to be ‘academic’ where the rationale has to
do with the student’s deficiency in the skills necessary in school or in the career for
which the school is training [her], including lack of professionalism.” Id. (collecting
cases); see also Knapik v. Mary Hitchcock Mem’l Hosp., 90 F. Supp. 3d 292, 300-01 (D.
Vt. 2015) (“For the purposes of judicial review . . . ‘academic’ decisions encompass
ethics and professionalism” if those qualities are “an essential part” of the student’s
training.). Disciplinary dismissals, on the other hand, typically involve “the violation by a
student of valid rules of conduct.” Wolff, 2016 WL 9022503, at *17 (citing Horowitz, 435
U.S. at 86-90).
Here, McGrady’s dismissal was academic in nature. The Respiratory Care
Program in which she was enrolled includes clinical rotations during the “third and fourth
semesters,” Docket Item 17 at 4, and McGrady’s dismissal was based on alleged
performance concerns and professionalism issues at her clinical sites. The October 26
dismissal letter states that McGrady was dismissed because of performance issues at
the clinical sites, including an unexcused absence, tardiness, failure to follow protocol,
professionalism concerns, and extended breaks. Docket Item 9-3 at 13-16. McGrady
herself alleges that Chaya, Provenzo, and Welch raised concerns about McGrady’s
“adverse [and] underperformance issues” at the meeting with her. Docket Item 17 at 4.
Additionally, Provenzo’s email arranging that meeting states that she wanted to meet
with McGrady to discuss “consistent negative feedback” about McGrady’s “performance
and behaviors” at the two clinical sites, including failing to show up for a scheduled
clinical session. Docket Item 9-3 at 9.
Other courts have found similar dismissals for professionalism concerns to be
academic rather than disciplinary. See, e.g., Sutton, 2020 WL 6532937, at *15 (finding
dismissal of student to be for academic reasons when based on “issues with her
preparedness, lateness, professionalism, and performance reviews” at her student
teaching site); Knapik, 90 F. Supp. 3d at 301 (finding dismissal of resident for ethics and
professionalism concerns to be for academic reasons because ethics and
professionalism “are an essential part of a resident’s training”); Al-Dabagh v. Case W.
Rsrv. Univ., 777 F.3d 355, 360 (6th Cir. 2015) (collecting cases). McGrady’s dismissal
from the Respiratory Care Program therefore was for academic reasons.
Given the academic nature of her dismissal, McGrady was entitled only to notice
and a “careful and deliberate” decision. See Dean, 804 F.3d at 191. McGrady’s own
allegations suggest that she received both. Although she alleges that she was not
“notified of any wrongdoing, insufficient performances[,] or failures to follow protocol,
policies[,] and procedures as they arose,” Docket Item 17 at 3, McGrady also says that
at a meeting with Chaya, Provenzo, and Welch, she was notified of “underperformance
issues” and that “[she] was dismissed” afterwards, see id. at 4. In fact, a short time after
the meeting, McGrady was formally notified of her dismissal from the program by e-mail,
and that e-mail included the specific reasons for her dismissal. Docket Item 9-3 at 1316; Docket Item 9-5 at 5. McGrady also appealed the dismissal decision to AliceaMaldonado, who spoke with McGrady by phone, and on October 26, 2020, sent an
email stating that he affirmed the dismissal “after examining the information related to
[McGrady’s] appeal.” Docket Item 9-3 at 13.
Even though McGrady’s account of her dismissal therefore suggests that she
received adequate process, she says that process was not enough. For example,
McGrady complains that she did not receive “a write[-]up or any type of disciplinary
action” before her meeting with Chaya, Provenzo, and Welch. Docket Item 17 at 4. In
other words, McGrady seems to believe that she was entitled to formal, written notice
before that meeting. But due process does not require formal, written notice for
academic dismissals; instead, a school need only “fully inform” a student of the
prospect of dismissal. 3 See Dean, 804 F.3d at 191. And while McGrady complains
about the form of the notice she received, she does not allege that she did not get
notice of the prospect of dismissal at the meeting with Chaya, Provenzo, and Welch.
See Docket Item 17 at 3-4.
McGrady also argues that she was denied due process because she was
dismissed from the Respiratory Care Program without “an opportunity at a formal or . . .
informal hearing . . . to present [her] own evidence and be heard.” Docket Item 17 at 3.
But academic dismissals do not require a hearing, see Horowitz, 435 U.S. at 85 n.3 (“[A]
hearing is not required by the Due Process Clause of the Fourteenth Amendment.”);
instead, a “careful and deliberate” ultimate decision is all that is required, see Dean, 804
F.3d at 191. 4 As explained above, McGrady was dismissed only after she first met with
Chaya, who was the Dean of Students, and two of her professors, Welch and Provenzo,
and then had a conversation with Alicea-Maldonado about the dismissal and the
Even if McGrady’s dismissal were properly characterized as disciplinary, she
still would not be entitled to receive formal, written notice from the school. Indeed,
notice of disciplinary charges may be “oral or written.” See Horowitz, 435 U.S. at 85
(emphasis added). And, again, McGrady has not alleged that she did not receive notice
of her potential dismissal and the alleged reasons for it at the meeting with Chaya,
Provenzo, and Welch.
In fact, even disciplinary dismissals do not require a formal hearing. See
Horowitz, 435 U.S. at 85-86. An “informal give-and-take” between the student and the
school that permits a student to “put [her conduct] in . . . the proper context” is enough.
See id. Here, McGrady does not allege she did not have an opportunity to “put [her
conduct] in . . . the proper context” at her two meetings with school administration.
Rather, her allegations focus on the lack of an “administrative hearing,” see Docket Item
17 at 5, or some other hearing at which she could “present [her] own evidence,” see id.
at 3. But for the reasons just stated, such formal procedures are not required.
McGrady’s allegation that she did not receive a formal hearing therefore fails to state a
procedural due process claim regardless of how her dismissal is characterized.
reasons for it. 5 In other words, McGrady does not allege any facts from which the Court
can infer that the school was not “careful and deliberate” in its ultimate decision to
In sum, procedural due process requires that a student dismissed for academic
reasons be “fully informed” about the prospective dismissal and that “[t]he ultimate
decision to dismiss [the student] [be] careful and deliberate.” Dean, 804 F.3d at 191.
Because McGrady has not plausibly alleged that she was deprived of either
requirement, she fails to state a viable procedural due process claim. 6
Although McGrady alleges that the GCC defendants “presented false evidence”
during the proceedings and that she “was not given an opportunity to present the merits
of her case,” Docket Item 1 at 4, she does not plead any facts about what evidence was
false and what she wanted to, but could not, share during her dismissal proceedings.
Those conclusory allegations alone are not enough to raise a procedural due process
claim, especially when McGrady’s other allegations suggest that she was given an
opportunity to be heard. See Mamatkulov v. City Univ. of N.Y., 2022 WL 2392433, at *4
(S.D.N.Y. July 1, 2022) (plaintiff’s conclusory allegation that he was “not given a chance
to be heard and . . . did not get fair treatment” failed to state a procedural due process
McGrady also asserts that the GCC defendants did not follow proper “policy
an[d] procedure” in dismissing her from the program. Docket Item 1 at 4. Presumably,
McGrady is referring to policies in the GCC Student Handbook that she claims “entitle[d]
[her] to a process before dismissal.” See Docket Item 17 at 3. “[N]ot every deviation
from a contractual grievance procedure, no matter how trivial, constitutes a deprivation
of constitutional due process.” Robie v. Obst, 2015 WL 4208639, at *7 (W.D.N.Y July 9,
2015). More specifically, “[a]lleged deviations that do not affect the fundamental
fairness of a hearing do not rise to constitutional proportions.” Id. (citing Winnick v.
Manning, 460 F.2d 545, 550 (2d Cir.1972)). Beyond her conclusory allegation that the
GCC defendants did not follow “policy an[d] procedure,” McGrady does not explain what
policy or procedure the handbook required but was not given, nor does she elaborate
on how those deviations affected the “fundamental fairness” of her dismissal
proceedings. McGrady’s allegation that the GCC defendants deviated from “policy an[d]
procedure” therefore does not plausibly raise a due process claim.
EQUAL PROTECTION CLAIM
McGrady also argues that the GCC defendants violated her right to equal
protection. Docket Item 17 at 6. The complaint offers little detail on McGrady’s equal
protection claim, but her NYSDHR complaint alleged that the GCC defendants
discriminated against her because of her race and sex. See Docket Item 1 at 10;
Docket Item 9-2 at 4. In her response to the motion to dismiss, McGrady appears to
abandon her claims that she suffered discrimination because of her sex or race;
instead, she now asserts that the GCC defendants discriminated against her for a
different reason—because of her pending criminal case. See Docket Item 17 at 5-6 (“I
believe [that] the defendants abruptly dismissed me from the program when they were
informed by the United States Attorney[’s] Office and federal law enforcement that I was
criminally charged with a federal crime . . . .”).
“The Equal Protection Clause protects individuals from invidious discrimination.”
Trowell v. Theodarakis, 2018 WL 3233140, at *3 (D. Conn. July 2, 2018). “It does not
mandate identical treatment for each individual or group of individuals.” Id. Instead, it
requires that “all persons similarly situated . . . be treated alike.” City of Cleburne v.
Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985). “To prove an equal protection
violation, claimants must prove purposeful discrimination, directed at an identifiable or
suspect class.” Giano v. Senkowski, 54 F.3d 1050, 1057 (2d Cir. 1995) (citations
“Although the prototypical equal protection claim involves discrimination against
people based on their membership in a vulnerable class,” courts also recognize equal
protection claims by “individuals who allege no specific class membership but are
nonetheless subjected to invidious discrimination at the hands of government officials.”
Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 499 (2d Cir. 2001). “This category
of equal protection violation is commonly known as a ‘class[-]of[-]one’ claim.” Abreu v.
Farley, 2019 WL 1230778, at *27 (W.D.N.Y. Mar. 15, 2019) (citing Village of
Willowbrook v. Olech, 528 U.S. 562, 564, (2000)). “When a plaintiff alleges an equal
protection violation (without also alleging discrimination based upon membership in a
protected class), the plaintiff must plausibly allege that he or she has been intentionally
treated differently from others similarly situated and no rational basis exists for that
different treatment.” Progressive Credit Union v. City of New York, 889 F.3d 40, 49 (2d
Cir. 2018). “[C]lass-of-one plaintiffs must show an extremely high degree of similarity
between themselves and the persons to whom they compare themselves.” Clubside,
Inc. v. Valentin, 468 F.3d 144, 159 (2d Cir. 2006).
McGrady appears to have abandoned her claims based on membership in a
protected class, 7 and she therefore does not state a “prototypical” equal protection
claim. See Harlen Assocs., 273 F.3d at 499. She also has not alleged a viable “classof-one” claim because she alleges no facts showing that she was “similarly situated” to
any other student who was treated differently. In fact, McGrady does not identify any
comparators at all. See MacPherson v. Town of Southampton, 738 F. Supp. 2d 353,
371 (E.D.N.Y. 2010) (dismissing equal protection claim because “the [c]omplaint does
To the extent McGrady continues to allege that she was discriminated against
because of sex or race, the complaint fails to state a claim that McGrady experienced
such discrimination. McGrady offers little more than conclusory allegations of
discrimination because of race or gender. See, e.g., Docket Item 9-3 at 4; Docket Item
17 at 2-3. That is not enough to state an equal protection claim. See McMillan v. Togus
Reg’l Off., Dep’t of Veterans Affs., 120 F. App’x 849, 852 (2d Cir. 2005) (summary
order) (“Conclusory allegations of racial [or sex-based] discrimination are insufficient to
maintain a § 1983 action.” (citing Graham v. Henderson, 89 F.3d 75, 79, 82 (2d
not identify any comparators or similarly situated entities at all”). Because McGrady has
not stated a “prototypical” or a “class-of-one” equal protection claim, she does not
plausibly allege an equal protection violation. 8
LEAVE TO AMEND
In McGrady’s response, she asks for leave to amend her complaint. Docket Item
17 at 1. Because leave to amend should be “freely given” whenever a complaint is
dismissed, see McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007),
and because “courts should generally not dismiss a pro se complaint without granting
the plaintiff leave to amend,” see Shibeshi v. City Univ. of N.Y., 531 F. App’x 135, 136
(2d Cir. 2013) (summary order), McGrady may file an amended complaint, within 45
days, that corrects the deficiencies noted above.
McGrady is advised that an amended complaint is intended to completely
replace the prior complaint in the action and thus “renders [any prior complaint] of no
legal effect.” Int’l Controls Corp. v. Vesco, 556 F.2d 665, 668 (2d Cir. 1977); see also
Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994). Therefore, any
amended complaint must include all allegations against each of the defendants,
that is, each of the GCC defendants, as well as defendants New York State and State
The GCC defendants also argue that McGrady’s equal protection and due
process claims should be dismissed because McGrady does not allege how Provenzo,
Welch, and Chaya were personally involved in McGrady’s dismissal and that those
defendants are entitled to qualified immunity. Docket Item 9-9 at 15-17. Furthermore,
in their motion to dismiss, the GCC defendants argue that McGrady should be
collaterally estopped from asserting her claims here because the NYSDHR
administrative proceeding provided a “full and fair opportunity [for McGrady] to litigate
her claim.” Id. at 17-18. Because the Court finds that McGrady fails to state an equal
protection or due process claim for other reasons, it does not reach the GCC
defendants’ other arguments.
University of New York, so that the amended complaint stands alone as the only
complaint that the defendants must answer in this action.
For the reasons stated above, the GCC defendants’ motion to dismiss, Docket
Item 9, will be granted unless McGrady amends her complaint, within 45 days, to
correct the deficiencies noted above. No later than 30 days after any amended
complaint is filed, the defendants may answer, move against, or otherwise respond to
the amended complaint. If McGrady does not file an amended complaint within 45
days, her claims against the GCC defendants will be dismissed, and the Clerk of the
Court shall terminate GCC, Provenzo, Welch, Chaya, and Alicea-Maldonado as
defendants without further order.
The Court hereby certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this
order would not be taken in good faith and therefore denies leave to appeal as a poor
person. Coppedge v. United States, 369 U.S. 438 (1962).
Dated: July 29, 2022
Buffalo, New York
/s/ Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE
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