Guess v. Jahromi et al
DECISION AND ORDER finding as moot 3 Motion to Appoint Counsel ; granting 2 Motion for Leave to Proceed in forma pauperis; plaintiffs complaint (doc. 1) is dismissed in its entirety with prejudice. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 3/21/17. (copy of Decision and Order sent by first class mail to Regina Guess.) (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DECISION AND ORDER
DR. BABAK S. JAHROMI,
CYNTHIA A. ZINK,
SUSAN A. MOODY,
Plaintiff Regina Guess (“plaintiff”), proceeding pro se, has
requested permission to proceed in forma pauperis pursuant to
28 U.S.C. § 1915. The Court has reviewed plaintiff’s submissions in
connection with her motion to proceed in forma pauperis, finds that
she meets the statutory requirements, and therefore grants her
request to proceed as a poor person. Pursuant to the requirements
plaintiff’s complaint to ensure that the complaint has a legal
basis. For the reasons set forth below, plaintiff’s complaint is
dismissed in its entirety with prejudice for lack of subject matter
jurisdiction. Plaintiff’s motion for appointment of counsel is
denied as moot.
The instant action is the third in a series of pro se actions
plaintiff has filed in relation to her former employment with the
University of Rochester Medical Center (“URMC”), where she worked
as a radiologist from approximately October 2008 through June 2010.
Plaintiff’s first action, which alleged claims of discrimination
and retaliation in violation of the Americans with Disabilities Act
(“ADA”), was dismissed by this Court on August 17, 2015, in a
Decision and Order granting defendant URMC’s motion for summary
judgment. See Guess v. Univ. of Rochester, 2015 WL 4891377, *1
(W.D.N.Y. Aug. 17, 2015), reconsideration denied, 2015 WL 5824854
(W.D.N.Y. Oct. 6, 2015), appeal dismissed (2d Cir. 15-3325) (Dec.
30, 2015) (Guess I).
Plaintiff’s second action, which she filed on September 19,
2016, alleged claims of fraudulent concealment, breach of contract,
employed at the URMC during the time frame relating to the events
at issue in plaintiff’s previous lawsuit. The Court dismissed that
action for lack of subject matter jurisdiction on October 20, 2016.
See Guess v. Jahromi, No. 6:16-CV-06637 (MAT), Doc. 8 (October 20,
2016) (Guess II). Specifically, the Court rejected plaintiff’s
asserted basis of supplemental jurisdiction, finding that because
the Court lacked original jurisdiction over any of the matters
asserted in the Guess II complaint, the Court therefore had no
supplemental jurisdiction to hear the case. On November 15, 2016,
the Court denied plaintiff’s motion for reconsideration and for
permission to file an appeal to the Second Circuit Court of
Appeals, finding that any appeal would not be taken in good faith.
See Guess v. Jahromi, 2016 WL 6695875, *2 (W.D.N.Y. Nov. 15, 2016)
defendants, all of whom were named personally in Guess II. Reading
the complaint liberally, plaintiff attempts to state two causes of
action. In the first cause of action, which plaintiff variously
describes as “fraud,” “concealment,” or “Title VII Civil Rights .
against her in the course of her employment, that they falsified
statements, and that they caused her “loss of personal missing
property.” Doc. 1 at 4. Her second cause of action alleges,
vaguely, that the defendants deprived her of “personal missing
property” through a “conspiracy of fraud.” See doc. 1 at 4-5. It is
unclear what “personal property” plaintiff refers to, however this
claim appears related to her repeated allegation, in both of her
prior suits, that due to some concealment of her medical record the
defendants somehow deprived her of medical treatment.
III. Standard of Review
screening of complaints filed by civil litigants proceeding in
forma pauperis, to ensure that the case goes forward only if it
meets certain requirements. “[T]he court shall dismiss the case at
any time if the court determines that . . . the action . . . is
frivolous or malicious; . . . fails to state a claim on which
relief may be granted; or . . . seeks monetary relief against a
“[T]he issue of ‘[f]ederal subject matter jurisdiction may be
raised at anytime during litigation and must be raised sua sponte
when there is an indication that jurisdiction is lacking.’” English
v. Sellars, 2008 WL 189645, *2 (W.D.N.Y. Jan. 18, 2008) (addressing
complaint at screening stage pursuant to § 1915) (quoting Hughes v.
Patrolmen’s Benevolent Assoc. of the City of New York, Inc., 850
F.2d 876, 881 (2d Cir. 1988), cert. denied 488 U.S. 967)) (emphasis
added). Even at the screening stage, therefore, “[w]here it appears
that granting leave to amend is unlikely to be productive, . . . it
is not an abuse of discretion to deny leave to amend.” Ruffolo v.
Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993) (per curiam);
see also Billard v. Rockwell Int’l Corp., 683 F.2d 51, 57 (2d Cir.
1982) (denial not abuse of discretion where plaintiff had had
“access to full discovery” in a related case).
As in Guess II, plaintiff’s instant complaint acknowledges
that her claims are related to her prior employment discrimination
suit. Reading her complaint liberally, she appears to assert
grounds of both original jurisdiction based on a federal question
as to a Title VII employment discrimination claim and supplemental
jurisdiction as to related state-law tort claims. Thus, plaintiff
ostensibly asserts that her state-law claims should be heard in
this case because of the existence of original jurisdiction on the
Title VII claim.
Initially, the Court notes that plaintiff’s complaint fails to
plaintiff alleging a Title VII case must allege that “(1) she was
within the protected class; (2) she was qualified for the position;
(3) she was subject to an adverse employment action; and (4) the
adverse action occurred under circumstances giving rise to an
inference of discrimination.” Liebowitz v. Cornell Univ., 584 F.3d
487, 498 (2d Cir. 2009). Plaintiff, however, states no supporting
facts other than to allege that the defendants “caused [her]
manifest injustice” in the course of her employment for URMC.
Plaintiff’s conclusory allegation of a Title VII violation appears
to be a vehicle for bootstrapping jurisdiction of her related,
state-law claims, which were previously dismissed by this Court in
To the extent that plaintiff attempts to frame her former ADA
claim now as a Title VII claim, such a claim cannot go forward
because principles of res judicata, or claim preclusion, bar such
a claim. “[C]laims premised upon ‘new legal theories do not amount
to a new cause of action so as to defeat the application of’ res
judicata.” Tompkins v. Local 32BJ, SEIU, 2012 WL 1267876, *8
(S.D.N.Y. Apr. 12, 2012) (quoting Ningbo Prods. Imp. & Exp. Co.,
Ltd. v. Eliau, 2011 WL 5142756, *9 (S.D.N.Y. Oct. 31, 2011)); see
also Cieszkowska v. Gray Line N.Y., 295 F.3d 204, 206 (2d Cir.
2002) (affirming district court order dismissing complaint as
barred by res judicata pursuant to 28 U.S.C. § 1915, where the
complaint stated employment discrimination as a new legal theory
but “focused on essentially the same facts as those asserted in her
first federal complaint”).
“To establish claim preclusion [or res judicata], a party must
show that (1) the previous action involved an adjudication on the
merits; (2) the previous action involved the plaintiffs or those in
privity with them; (3) the claims asserted in the subsequent action
were, or could have been, raised in the prior action.” Businesses
for a Better N.Y. v. Smith, 2010 WL 3703693, *3 (W.D.N.Y. Sept. 16,
2010) (citing Monahan v. New York City Dep’t of Corr., 214 F.3d
Plaintiff’s ADA claim was finally decided on the merits by the
Court’s Decision and Order dated August 17, 2015. See Guess I.
Nothing prevented plaintiff from bringing a Title VII claim along
with the ADA claim in Guess I, which claim would have centered on
the same facts. Therefore, the Court concludes that to the extent
that plaintiff attempts to plead a claim of Title VII employment
discrimination, that claim is precluded due to the Court’s decision
in Guess I.
The Court therefore lacks original jurisdiction over any
alleged Title VII claim because this claim is barred by the
doctrine of res judicata.1 Accordingly, to the extent that this
complaint raises state law claims involving fraudulent concealment,
breach of contract, or medical malpractice, those claims are
dismissed because, for the reasons stated in Guess II, the Court
For the reasons stated above, plaintiff’s motion to proceed in
forma pauperis (doc. 2) is granted, plaintiff’s complaint (doc. 1)
is dismissed in its entirety with prejudice, and plaintiff’s motion
requesting appointment of counsel (doc. 3) is denied as moot. For
the same reasons as stated in Guess III, 2016 WL 6695875, at *1-2,
the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any
appeal from this Decision and Order would not be taken in good
faith. The Clerk of the Court is directed to close this case.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
March 21, 2017
Rochester, New York.
The Court declines to grant plaintiff leave to amend because, considering
the history of this case, to do so would likely be unproductive. See Ruffolo, 987
F.2d at 131; Billard, 683 F.2d at 57.
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