Freeman v. Kirisits et al

Filing 164

DECISION AND ORDER that the Court adopts the Report and Recommendation portion of the D&O-R&R (Docket No. 154), recommending that Plaintiffs Motion to Amend (Docket No. 84) be denied to the extent that Plaintiff not be permitted to assert proposed Co unts 1-24, 27-29, 31-33, and 35-54, and not be permitted to add the Justice Center, Rinaldo, Gelernter, Scott, Ronda, NYS Justice Center Officer, B.E.R. Field Agent, and B.E.R. Director as defendants. However, the Court finds that the First Amended C omplaint (Docket No. 161) does not survive screening under the PLRA. Therefore, it is dismissed with prejudice without leave to replead. The Clerk of Court is directed to terminate the Motion to Amend (Docket No. 84). (Copy of this Decision and Order sent by first class mail to Plaintiff.) Signed by Hon. Michael A. Telesca on 9/21/2018. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DWAYNE FREEMAN,
No. 6:16-cv-06668(MAT)(MWP)
DECISION AND ORDER

Plaintiff,
-vsROCHESTER PSYCHIATRIC CENTER,
Defendant.

I.

Introduction
Proceeding pro se, Dwayne Freeman (“Plaintiff”) filed this

action against Rochester Psychiatric Center (“RPC”) asserting a
claim

under

Section

504

of

the

Rehabilitation

Act

of

1973,

29 U.S.C. § 701 et seq., arising out of his employment with, and
subsequent termination from, RPC. This case comes before the Court
upon the combined Report and Recommendation/Decision and Order
(Docket No. 153, as amended by Docket No. 154), dated August 30,
2018, issued by Magistrate Judge Marian W. Payson (“the D&O-R&R”).
II.

Background
In the R&R, Judge Payson recommended that Plaintiff’s Second

Motion to Amend the Complaint (Docket No. 84) be granted in part
and denied in part. Specifically, Judge Payson recommended that
Plaintiff’s requested to add proposed Counts 1-24, 27-29, 31-33,
and 35-54 be denied. As to Counts 1-24 and 35-54, Judge Payson
noted that this Court, in prior Decisions and Orders (Docket Nos.
17 & 43) had already determined them to be insufficient to state a
claim for relief. As to Counts 27-29 and 31-32, Judge Payson found

that they failed as a matter of law and recommended denial of them
without leave to replead. Judge Payson further recommend denial of
Plaintiff’s request to add the Justice Center, Rinaldo, Gelernter,
Scott, Ronda, New York Supreme Justice Center Officer, B.E.R. Field
Agent, and B.E.R. Director as defendants to the action.
In the Decision and Order portion of the R&R, Judge Payson
granted Plaintiff’s request to amend the complaint to add proposed
Counts 26, 30 and 34 and to add certain additional defendants:
New York State

Office

of

Mental

Health

(“OMH”);

certain

RPC

employees (Christopher Kirisits, Phil Griffin, Colomba Misseritti,
Doug Lee, Cynthia Crowell, Linda Gray, and Lidia Colak); certain
employees of OMH (Vicky Eudell, Matthew Matney, and John Burrows);
and New York State Governor Andrew Cuomo.
Judge

Payson

directed

that

Plaintiff

file

an

amended

complaint, as permitted in the D&O-R&R, by September 12, 2018.
Judge Payson further stated that upon Plaintiff’s filing of an
amended complaint, the Clerk of the Court was directed to cause the
United States Marshal to serve copies of the Summons, Amended
Complaint,

and

the

D&O-R&R

upon

newly

named

defendants

OMH,

Kirisits, Griffin, Misseritti, Lee, Crowell, Gray, Colak, Burrows,
Matney, Eudell, and Cuomo.
Objections to the D&O-R&R were due 14 days from receipt.
Neither Plaintiff nor Defendant filed any objections.
Plaintiff filed his First Amended Complaint (Docket No. 161)
on September 7, 2018, prior to this Court ruling on the D&O-R&R.

-2-

Plaintiff did not include any of the defendants or causes of action
that Judge Payson had recommended that this Court deny permission
to add. However, Plaintiff did add the defendants and causes of
action that Judge Payson had held, in the Decision and Order
portion of the D&O-R&R, that Plaintiff could include.
III. Standard of Review for Screening Pro Se Complaints
Section 1915 of Title 28 mandates that a district court
dismiss an in forma pauperis complaint if the action is frivolous
or malicious; fails to state a claim on which relief may be
granted; or seeks monetary relief against a defendant who is immune
from such relief. See 28 U.S.C. § 1915(e)(2)(B)(i)-(iii). The
district court is required to dismiss the action as soon as it
makes such

a

determination.

See

id.

Furthermore,

28

U.S.C.

§ 1915(e), as amended by the Prison Litigation Reform Act of 1995,
applies

to

both

prisoner

and

non-prisoner

in

forma

pauperis

actions. E.g., Simpson v. O’Sullivan, No. 09-CV-2334 JSETB, 2009 WL
3381585, at *1 (E.D.N.Y. Oct. 18, 2009) (citing Burns v. Goodwill
Indus. of Greater New York, No. 01 CIV. 11311(DC), 2002 WL 1431704,
at

*2

(S.D.N.Y.

July

2,

2002)).

Plaintiff

here

was

granted

permission to proceed in forma pauperis. Therefore, the Court must
screen the First Amended Complaint for sufficiency under 28 U.S.C.
§ 1915(e).
The Court notes that Plaintiff has attached a number of
documents to his First Amended Complaint as Exhibits A through T
(Docket No. 161, pp. 36-111 of 111). “[T]he complaint is deemed to
-3-

include any written instrument attached to it as an exhibit or any
statements or documents incorporated in it by reference.” Int’l
Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d
Cir. 1995) (per curiam) (quoting Cortec Indus., Inc. v. Sum Holding
L.P., 949 F.2d 42, 47 (2d Cir. 1991)); see also FED. R. CIV. P.
10(c) (“A copy of any written instrument which is an exhibit to a
pleading is a part thereof for all purposes.”). “Even where a
document

is

not

incorporated

by

reference,

the

court

may

nevertheless consider it where the complaint ‘relies heavily upon
its terms and effect,’ which renders the document ‘integral’ to the
complaint. Chambers v. Time Warner, Inc., 282 F.3d 147, 152–53
(2d Cir. 2002) (quoting Int’l Audiotext, 62 F.3d at 72).
IV.

Summary of Plaintiff’s
Complaint (“FAC”)

Allegations

in

the

First

Amended

At all times relevant to this action, Plaintiff worked as a
Mental Health Therapy Aide (“MHTA”) at RPC. On January 5, 2015,
Plaintiff requested that RPC afford him a reasonable accommodation
of not having to work on the floor with geriatic patients (“E1
Unit”) due to his anxiety disorder. This request was accompanied by
a note from his therapist, LCSW Schumacher, stating that because of
the loud and noisy atmosphere in the E1 Unit, Plaintiff was at risk
of a loud outburst.1 FAC ¶ 43-44, 46.

1

However, Plaintiff also states that beginning in October 2014, he had been
forbidden to work on the E1 Unit because the New York State Justice Center was
investigating a claim made by a patient against Plaintiff. See FAC ¶¶ 49-50.

-4-

On February 3, 2015, Plaintiff arrived at work and informed by
non-party

Nurse

Administrator

Tom

Mraz

(“Mraz”)

that

he

was

assigned to work on the E1 Unit. FAC ¶¶ 48, 59. Plaintiff stated
that he could not work on the E1 Unit because of his anxiety
disorder. Id. ¶ 59. Mraz issued a direct order to Plaintiff to
report to the E1 Unit; Plaintiff refused to comply the direct
order. Id. ¶ 60.
At

about

Christopher

8:30

Kirisits

a.m.,

defendants

(“Kirisits”)

and

Chief

Nursing

Assistant

Officer

Chief Nursing

Officer Linda Gray (“Gray”) arrived and gave Plaintiff a direct
order to report to the E1 Unit. Plaintiff said that he would have
to refuse the direct order because of his anxiety disorder, that he
was willing to work in any other unit, and that he had submitted
his request for a reasonable accommodation to the Personnel Office
a month ago. FAC ¶ 62.
Accompanied by union representative Cheryl Shaw (“Shaw”), who
is not a party this action, Plaintiff went to the Personnel Office
where he was questioned by Associate Personnel Manager Doug Lee
(“Lee”) about why he had refused the direct orders. Lee read out
loud RPC’s insubordination policy which states that an employee may
only refuse a direct order if it constitutes a health or safety
concern. FAC ¶ 65 & Ex. E. Plaintiff reiterated that he could not
work the E1 Unit because of his anxiety disorder. Plaintiff was
sent home. Id. ¶¶ 66-67.

-5-

Plaintiff’s primary care physician wrote him out of work due
to stress from February 4, 2015, through February 18, 2015. FAC
¶ 70. Prior to returning to work on February 19, 2015, defendant
Colomba Misseritti (“Misseritti”) sent an email instructing him to
report to the Personnel Office at 10 a.m. Id. ¶ 72. Plaintiff
requested a union representative be present. When Shaw, the union
representative arrived, they met with Lee and Misseritti, who
informed Plaintiff that he was being placed on unpaid suspension
pursuant to Article 33(g) of the collective bargaining agreement,
and that RPC was seeking to terminate his employment based on his
insubordination. Id. ¶¶ 73-74, 79.
Lee and Misseritti provided him with a Notice of Discipline
(“NOD”) which set forth an insubordination charge based on the
February 3, 2015 incident, as well as six other unrelated charges
of

insubordination.

insubordination

were

FAC

¶

based

75.
on

The

other

Plaintiff

six

instances

refusing

of

“mandation

(involuntary overtime)” between April 2014, and June 2014. Id.
¶ 75-76. Plaintiff admittedly refused “mandation [sic]” on these
dates but says that he did so because he was experiencing back
pain. Id. ¶ 76. Plaintiff asserts that these charges were “bogus”
and that RPC was aware that he did go on Workers Compensation leave
in June 2014, due to his back pain. Id. ¶ 77.
Plaintiff timely grieved his suspension. FAC ¶ 83. He was
informed that he was required to appear at an expedited hearing on
April 27, 2015. He did so, accompanied by union representative

-6-

Jennifer Rhee. Id. ¶¶ 84-85. At the expedited hearing, Plaintiff
attempted to present evidence. Id. ¶¶ 87-88. Defendant John Burrows
(“Burrows”), Labor Specialist for OMH, also was at the expedited
hearing and indicated that he wanted Plaintiff terminated. Id.
¶ 89.

Arbitrator Thomas

Rinaldo, Esq. (“Rinaldo”) informed the

parties that he (Rindaldo) had no authority to decide the case;
rather, the only purpose of the expedited hearing was to see if a
deal could be reached. Id. ¶ 88. Rinaldo “dictated” the terms of a
compromise to “both sides,” namely, that Plaintiff would not be
terminated but would return to work with no stipulations and waive
back pay. Id. ¶ 90-92. Otherwise, Plaintiff would remain on unpaid
suspension while he awaited a full evidentiary hearing. Id. ¶ 92.
Plaintiff

asserts

that

he

was

“coerced”

into

accepting

the

compromise and denies that he agreed to any of the terms or
stipulations proposed by Rinaldo Id. ¶ 96.
Rinaldo issued his written decision that day. FAC ¶ 95 &
Ex. H. Rinaldo found Plaintiff guilty of the insubordination
charges outlined in the NOD, but determined that the State’s
proposed penalty of termination was inappropriate. Ex. H. Rinaldo
further stated that Plaintiff had represented to him that he was
“ready, willing, and able to return to work without any restriction
and to comply with all of the work requirements of the employer”
and agreed that he waived all right to back pay and benefits. Id.
Plaintiff returned to work at OMH as per the terms of the
arbitrator’s

decision

reached

after

-7-

the

expedited

hearing.

Plaintiff was out on Workers Compensation leave due to his back
issue from May 1, 2015, through July 19, 2015.
During the time period from January 5, 2015, through August 5,
2015, Plaintiff attempted to make arrangements with defendant Vicki
Eudell

(“Eudell”),

of

OMH,

to

have

an

interview

for

the

“interactive process” prescribed by the Rehabilitation Act.2
Plaintiff indicates that he returned to work on July 20, 2015,
was directed to work on the E1 Unit, and refused, citing his
anxiety disorder. FAC ¶¶ 109-15. As discussed above, he had agreed
at

the

expedited

hearing

before

the

arbitrator

that

he

was

returning to work without any stipulations. Lee and Misseritti
placed Plaintiff on administrative leave on July 20, 2015, pending
an investigation of an “ongoing” incident.
On February 11, 2016, Plaintiff appeared at a full evidentiary
hearing, at which he was represented by counsel hired by the Civil
Services Employees Association Union. On April 18, 2016, arbitrator
Lise Gelertner issued a decision finding, inter alia that he did
not have a legitimate health/safety issue on July 20, 2015, that
justified his refusal of a direct order. The arbitrator accordingly
upheld RPC’s decision to terminate him.

2

To help achieve compliance with the Rehabilitation Act, an informal
“‘interactive process’” is contemplated “by which employers and employees work
together to assess whether an employee’s disability can be reasonably
accommodated.” Jackan v. N.Y.S. Dep’t of Labor, 205 F.3d 562, 566 (2d Cir.),
cert. denied, 531 U.S. 931 (2000).

-8-

V.

Analysis of the FAC’s Sufficiency
A.

Counts One and Two: The Section 504 Rehabilitation Act
Claims Against RPC and OMH, Respectively
1.

Elements of a Section 504 Claim

Section 504 of the Rehabilitation Act provides that “[n]o
otherwise qualified individual with a disability in the United
States . . . shall, solely by reason of her or his disability, be
excluded from the participation in, be denied the benefits of, or
be subjected to discrimination under any program or activity
receiving Federal financial assistance.” 29 U.S.C. § 794(a). See,
e.g., Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003).
A plaintiff may base a discrimination claim under Section 504 “on
one of three theories of liability: disparate treatment, disparate
impact, or failure to make a reasonable accommodation.” Davis v.
Shah, 821 F.3d 231, 260 (2d Cir. 2016) (citing Fulton v. Goord, 591
F.3d 37, 43 (2d Cir. 2009)). A plaintiff suing his employer for
failure to make reasonable accommodations must establish four
elements to make out a prima facie case: “(1) [the] plaintiff is a
person with a disability under the meaning of the [Rehabilitation
Act]; (2) an employer covered by the statute had notice of his
disability; (3) with reasonable accommodation, [the] plaintiff
could perform the essential functions of the job at issue; and
(4) the employer has refused to make such accommodations.” Rodal v.
Anesthesia Grp. of Onondaga, P.C., 369 F.3d 113, 118 (2d Cir.
2004).

-9-

2.

Count One: Violation of Section
Rehabilitation Act Against RPC

504

of

the

The crux of Count One, asserted against RPC, appears to be
Plaintiff’s inability to arrange an interactive process interview
with Eudell, an employee of OMH, regarding his request for a
reasonable accommodation. See FAC ¶¶ 145-53. Plaintiff alleges that
his attempt to obtain a reasonable accommodation for his disability
(anxiety disorder) was “met with unreasonable resistance from state
officials, and as such RPC has shown deliberate indifferent to
Plaintiff’s disability.” Id. ¶ 153. Plaintiff also asserts at the
Article 33 hearing, Burrows, an employee of OMH, suggested that
Plaintiff was lying about the extent of his symptoms due to his
anxiety disorder. Id. ¶ 154. Plaintiff alleges that “[t]hrough its
state official, John Burrows, RPC and OMH drastically showed
deliberate indifference to Plaintiff’s disability.” Id.
A claim is facially plausible when a plaintiff pleads facts
that would allow “the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (citation omitted). The Court assumes, for present
purposes only, that Plaintiff has sufficiently pleaded the first
three elements of a prima facie “reasonable accommodation” claim
under the Rehabilitation Act. However, the FAC’s allegations do not
plausibly suggest how RPC denied him a reasonable accommodation
based on his alleged disability. Indeed, Plaintiff’s allegations in
support of Count One fail to allege any involvement by RPC in the
alleged denial of a request for reasonable accommodation premised
-10-

on his allegedly failed attempt to schedule an interactive process
interview with Eudell. Neither Eudell nor Burrows are or were
employees of RPC. Nor is there any suggestion that Eudell acted in
concert with any employee of RPC. Burrows, moreover, was not
involved at all in the attempt to schedule an interactive process
interview.
Here, Plaintiff has not pleaded facts that would allow a
reasonable inference that RPC is liable for the alleged misconduct.
Therefore, Count One is dismissed.
3.

Count Two: Violation of Section
Rehabilitation Act Against OMH

504

of

the

The allegations in the FAC under the heading for Count Two
repeat, essentially verbatim, the substance of the allegations
under Count One. Compare FAC ¶¶ 156-65 with FAC ¶¶ 145-55.
As noted above, Burrows, an OMH employee, was not involved at
all in the attempt to schedule an interactive process interview in
connection with reaching a reasonable accommodation for Plaintiff’s
alleged disability. Plaintiff’s allegations simply do not allow an
inference that Burrows was involved in denying him a reasonable
accommodation.
With regard to Eudell, Plaintiff’s allegations do not allow an
inference that she engaged in unlawful conduct. Rather, the emails
and other documents submitted by Plaintiff as exhibits to the FAC
indicate that the inability to schedule an interactive process
interview from January to August 2015, was occasioned by routine
scheduling conflicts, Eudell’s previously scheduled vacation time,
-11-

and

her

limited

flexibility

due

to

the

fact

that

she

was

responsible for covering several facilities. See FAC Ex. I (emails
between Plaintiff and Eudell). In addition, Plaintiff was out on
Workers Compensation leave due to back issues for several months.
See id. It also appears that Plaintiff was under the impression
that

the

meeting

could

not

occur

while

he

was

on

Workers

Compensation leave. While this belief was mistaken, there is no
indication

in

the

documents

attached

to

the

FAC

that

Eudell

intentionally misled him or wilfully delayed in scheduling the
interview.
Plaintiff requests the Court to draw the inference that OMH,
in bad faith, refused to engage in the interactive process based on
the fact that the interview with Eudell was not scheduled before
Plaintiff was terminated. It is true that the interactive process
interview never was scheduled because, one day after returning to
work, Plaintiff was placed on administrative leave at RPC based on
his refusal of a direct order to work on the E1 Unit due to his
anxiety disorder. It is undisputed that, months earlier, Plaintiff
had agreed to return to work without any stipulations (such as not
having

to

work

on

the

E1

Unit)

and

without

any

reasonable

accommodations in place. In other words, Plaintiff was on notice,
after the expedited hearing before Rinaldo, that he might be asked
to work on the E1 Unit. The exhibits attached to the FAC undermine
any “reasonable inference that [OMH] is liable,” Iqbal, 556 U.S. at
678 (citation omitted), for a refusal to engage in the interactive

-12-

process. Therefore, Plaintiff’s pleadings do not “plausibly suggest
an entitlement to relief,” id. at 681, on his claim that he was
denied a reasonable accommodation under Section 504.
C.

Count Three: 42 U.S.C. § 1983 Action for Violation of the
Rehabilitation Act Against Defendants Kirisits, Griffin,
Misseritti, Lee, Crowell, Gray, Colak, Burrows, Matney,
Eudell, and Cuomo

In Count Three, Plaintiff attempts to use 42 U.S.C. § 1983 as
a mechanism to recover for the alleged violation of Section 504 of
the Rehabilitation Act.
1.
District

Plaintiff May Not Bring a Parallel § 1983 Action
with a Section 504 Action
courts

in

this

Circuit

have

reached

differing

conclusions on whether a public official be sued in his or her
individual capacity under 42 U.S.C. § 1983 predicated upon alleged
violations of the Rehabilitation Act. Contrast Marino v. City Univ.
of New York, 18 F. Supp.3d 320, 336 n. 9 (E.D.N.Y. 2014) (“While
‘[§ ]1983 provides a cause of action for violations of federal
statutes as well as the Constitution[,]’ the ADA and Rehabilitation
Act create enforceable rights indicating that Congress did not
intend ‘that plaintiffs [would] seek redress for violations of
their ADA and Rehabilitation Act rights through the vehicle of
§ 1983.’”) (quoting Bartlett v. N.Y. State Bd. of Law Examiners,
970 F. Supp. 1094, 1144–45 (S.D.N.Y. 1997), aff’d in part, vacated
in part on other grounds, 156 F.3d 321 (2d Cir. 1998), cert.
granted, judgment vacated on other grounds, 527 U.S. 1031 (1999);

-13-

citing Sinisgallo v. Town of Islip Hous. Auth., 865 F. Supp.2d 307,
333 (E.D.N.Y. 2012), appeal withdrawn (Aug. 23, 2012); Credle–Brown
v. Conn. Dep’t of Children & Families, 3:04–CV–1167, 2009 WL
1789430, at *1 (D. Conn. June 24, 2009); other citation omitted),
with Stahura-Uhl v. Iroquois Cent. Sch. Dist., 836 F. Supp.2d 132,
146 (W.D.N.Y. 2011) (Skretny, D.J.) (concluding that Rehabilitation
Act scheme is not “comprehensive” and does not preclude a parallel
§ 1983 claim).
The Second Circuit has not weighed in on this question, but
the Ninth, Eighth, Fifth, and Eleventh Circuits have held that an
individual cannot be sued under 42 U.S.C. § 1983 for violations of
Section 504

of

the

Rehabilitation

Act

or

the

Americans

with

Disabilities Act (“ADA”). E.g., Vinson v. Thomas, 288 F.3d 1145,
1156 (9th Cir. 2002) (“hold[ing] that a plaintiff cannot bring an
action under 42 U.S.C. § 1983 against a State official in her
individual capacity to vindicate rights created by Title II of the
ADA or section 504 of the Rehabilitation Act”) (citing Lollar v.
Baker, 196 F.3d 603, 610 (5th Cir. 1999); Alsbrook v. City of
Maumelle, 184 F.3d 999, 1011 (8th Cir. 1999) (en banc); Holbrook v.
City of Alpharetta, 112 F.3d 1522 (11th Cir. 1997)); see also

A.W.

v. Jersey City Pub. Sch., 486 F.3d 791, 806 (3d Cir. 2007) (holding
that § 1983 is not available to provide a remedy for alleged
violations of rights under Section 504 of the Rehabilitation Act).
As the Fifth Circuit explained in Lollar,
both the Rehabilitation Act and the ADA provide
extensive, comprehensive remedial frameworks that address
-14-

every aspect of [a plaintiff’s claim] under section 1983.
To permit a plaintiff to sue both under the substantive
statutes that set forth detailed administrative avenue of
redress as well as section 1983 would be duplicative at
best; in effect such a holding would provide the
plaintiff with two bites at precisely the same apple.
Lollar, 196 F.3d at 610. The Court finds the reasoning of

the

Third, Fifth, Eighth, Ninth, and Eleventh Circuit Courts of Appeals
to be persuasive. Therefore, the Court concludes that a plaintiff
may not maintain a § 1983 action in addition to a Rehabilitation
Act cause of action where, as here, the only deprivation

alleged

is

by

a

violation

of

the

plaintiff’s

rights

created

the

Rehabilitation Act. See Lollar, 196 F.3d at 610.
2.

In Any Event, A Parallel § 1983 Action Fails for
Lack
of Personal
Involvement
by
the
Named
Defendants

Even were the Court to follow Judge Skretny’s decision in
Stahura-Uhl,

supra,

finding

that

a

plaintiff

may

maintain

a

parallel § 1983 action, Plaintiff’s allegations fail to state a
plausible claim under § 1983 against any of the

individual

defendants because he has not sufficiently alleged their personal
involvement in any Section 504 violation.
a.

Personal Involvement

“It is well settled in this Circuit that ‘personal involvement
of

defendants

in

alleged

constitutional

deprivations

is

a

prerequisite to an award of damages under § 1983.’” Wright v.
Smith, 21 F.3d 496, 501 (2d Cir. 1994) (quoting Moffitt v. Town of
Brookfield,

950

F.2d

880,

885

(2d

-15-

Cir.

1991)).

“Government

officials may not be held liable for the unconstitutional conduct
of their subordinates under a theory of respondeat superior.”
Iqbal,

556

U.S.

at

676.

Because

vicarious

liability

is

inapplicable to . . . § 1983 suits, a plaintiff must plead that
each Government-official defendant, through the official’s own
individual actions, has violated the Constitution.” Id.
The Second Circuit has described a number of ways that a
supervisory defendant’s personal involvement may be shown: “(1) the
defendant

participated directly

in

the

alleged

constitutional

violation, (2) the defendant, after being informed of the violation
through a report or appeal, failed to remedy the wrong, (3) the
defendant created a policy or custom under which unconstitutional
practices occurred, or allowed the continuance of such a policy or
custom, (4) the defendant was grossly negligent in supervising
subordinates who committed the wrongful acts, or (5) the defendant
exhibited deliberate indifference to the rights of inmates by
failing to act on information indicating that unconstitutional acts
were occurring.” Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)
(citations omitted).
b.

The Defendants

The allegations in support of Count Three do not specify any
defendants by name except Governor Andrew Cuomo. “An individual
cannot be held liable for damages under § 1983 ‘merely because he
held a high position of authority,’ but can be held liable if he
was personally involved in the alleged deprivation.” Back v.
-16-

Hastings On Hudson Union Free Sch. Dist., 365 F.3d 107, 127
(2d Cir. 2004) (quoting Black v. Coughlin, 76 F.3d 72, 74 (2d Cir.
1996)). Plaintiff asserts that Governor Cuomo received actual
notice of the Section 504 violation because Plaintiff sent him a
letter on

February

5,

2018,

but Cuomo

acted

with

deliberate

indifference in failing to respond or direct any of his staff to
respond,

or

to

rectify

the

situation.

See

FAC

¶

171.

This

allegation is insufficient to adequately allege Governor Cuomo’s
personal involvement. See, e.g., Colon, 58 F.3d at 873 (allegations
that prisoner sent letter to superintendent of prison, complaining
that contraband had been planted in his cell, prior to prisoner’s
hearing, and that superintendent did not investigate, was not
sufficient to subject superintendent to liability under § 1983 for
personal involvement in deprivation of prisoner’s constitutional
rights).
The Court turns next to the RPC employees (Kirisits, Griffin,
Misseritti, Lee, Crowell, Gray, and Colak) and the OMH employees
(Burrows, Matney, and Eudell)

against whom Plaintiff seeks to

assert Count III. Plaintiff conclusorily asserts that “each named
Defendant” had “direct participation and personal involvement in
depriving Plaintiff of his statutory right pursuant to” Section 504
of the Rehabilitation Act. FAC ¶ 170 (emphases in original). This
is merely a legal conclusion couched as a factual averment, to
which the Court gives no effect. See Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007) (to avoid dismissal for failure to state

-17-

a claim, a plaintiff is “obligat[ed] to provide the ‘grounds’ of
his ‘entitle[ment] to relief’ [which] requires more than labels and
conclusions”) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)
(on a motion to dismiss, courts “are not bound to accept as true a
legal

conclusion

couched

as

a

factual

allegation”)

(second

alteration in original)).
D.

Count Four: Equal Protection Claim Against Defendants
Kirisits, Griffin, Misseritti, Lee, and Gray

In Count Four, Plaintiff asserts a claim under the Equal
Protection Clause of the Fourteenth Amendment. Plaintiff alleges
that he was treated differently from a similarly situated coworker,
BeRanna Divine (“Divine”), who also held the position of MHTA and
who has an unspecified disability. Plaintiff claims that the named
Defendants did not “put up roadblocks” when Divine requested to
participate

in

the

interactive

process

required

under

the

Rehabilitation Act. See FAC ¶¶ 183-85. Plaintiff asserts that the
disparate treatment by the named Defendants was based on “gender
and other ‘impermissible’ reasons.” FAC ¶ 178.
The Fourteenth Amendment’s “Equal Protection Clause requires
that the government treat all similarly situated people alike.”
Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 499 (2d Cir.
2001) (citation omitted). “Persons with disabilities are not a
suspect class and review of their equal protection claims are
subject

to

rational

basis

review.”

Marino

v.

City

Univ.

of

New York, 18 F. Supp.3d 320, 340 (E.D.N.Y. 2014) (citing City of
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Cleburne v. Cleburne Living Center, 473 U.S. 432, 442–47 (1985)).
Thus, to proceed on his equal protection claim as a “class of one”
plaintiff,

Plaintiff

must

show

that

“[1]

[he]

has

been

intentionally treated differently from others similarly situated
and [2] that there is no rational basis for the difference in
treatment.” Village of Willowbrook v. Olech, 528 U.S. 562, 564
(2000).
“[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); accord Ruston v. Town Bd. for Town of Skaneateles,
610 F.3d 55, 59 (2d Cir. 2010). Plaintiff’s asserted basis for
finding that he and Divine are “similarly situated” is that they
“both requested and asked the Defendant to provide a reasonable
accommodation.” FAC ¶ 182. This allegation is inadequate to raise
Plaintiff’s “right to relief above the speculative level.” Twombly,
550 U.S. at 555.
With regard to the element of “intentional or purposeful
discrimination[,]” Phillips v. Girdich, 408 F.3d 124, 129 (2d Cir.
2005), Plaintiff’s conclusory allegations of disparate treatment
are based solely on his own personal opinion that he was subjected
to

discriminatory

animus.

This

is

insufficient

to

satisfy

Plaintiff’s pleading burden. See Morales v. New York, 22 F. Supp.3d
256,

275

(S.D.N.Y.

2014)

(plaintiff

failed

to

state

equal

protection claim where complaint offered “conclusory allegations of

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disparate treatment and his personal opinion that such treatment
was motivated by discriminatory intent”) (citing, inter alia,
Hamzik v. Office for People with Developmental Disabilities, 859 F.
Supp.2d 265, 280 (N.D.N.Y. 2012) (similar)); see generally Thomas
v. City of New York, 143 F.3d 31, 37 (2d Cir. 1998) (affirming
dismissal of an Equal Protection Clause claim when “plaintiffs did
not allege sufficient facts to support discriminatory intent. .
.”).
E.

Leave to Replead is Unwarranted

Generally, courts are to read pro se complaints liberally.
Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991). Leave to amend
should be granted “when a liberal reading of the complaint gives
any indication that a valid claim might be stated.” Gomez v. USAA
Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999). The Court cannot
find that the First Amended Complaint, liberally read, suggests
that Plaintiff has valid claims that he has pleaded inartfully
because he is pro se. The problem with Plaintiff’s causes of action
“is substantive; better pleading will not cure it. Repleading would
thus be futile.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.
2000) (citation omitted).
VI.

Conclusion
For the foregoing reasons, the Court adopts the Report and

Recommendation

portion

of

the

D&O-R&R

(Docket

No.

154),

recommending that Plaintiff’s Motion to Amend (Docket No. 84) be
denied to the extent that Plaintiff not be permitted to assert
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proposed Counts 1-24, 27-29, 31-33, and 35-54, and not be permitted
to add the Justice Center, Rinaldo, Gelernter, Scott, Ronda, NYS
Justice Center Officer, B.E.R. Field Agent, and B.E.R. Director as
defendants.

However,

the

Court

finds

that

the

First

Amended

Complaint (Docket No. 161) does not survive screening under the
PLRA. Therefore, it is dismissed with prejudice without leave to
replead. The Clerk of Court is directed to terminate the Motion to
Amend (Docket No. 84).
SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:

September 21, 2018
Rochester, New York

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