Opinion
19-CV-5400 (LJL)(VF)
07-26-2022
ANIBAL QUINONES, Plaintiff, v. NEW YORK CITY, et al., Defendants.
Mr. Anibal K. Quinones Defendants' counsel (via ECF)
Mr. Anibal K. Quinones Defendants' counsel (via ECF)
REPORT AND RECOMMENDATION
VALERIE FIGUEREDO, United States Magistrate Judge
TO: THE HONORABLE LEWIS J. LIMAN, United States District Judge
Plaintiff Anibal Quinones, proceeding pro se and in forma pauperis, filed a Second Amended Complaint against defendants the City of New York and Corrections Officer Artisha Bishop (collectively, “Defendants”) for violating his civil and constitutional rights under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17, and 42 U.S.C. § 1983. See Second Amended Compl. (“SAC”), ECF No. 36. Plaintiff's claims stem from events occurring while he was held in custody at the Manhattan Detention Complex (“MDC”). Plaintiff contends that he was subjected to a hostile workplace, that his First Amendment right to free speech and right to equal protection under the Fourteenth Amendment were violated by a work supervisor who did not allow him to speak Spanish during his work in the MDC kitchen, and that after he filed a grievance, he was fired from his job for discriminatory and/or retaliatory reasons. Defendants moved to dismiss the Second Amended Complaint. See Defs.' Ltr., Feb. 26, 2021, ECF No. 37.
For the reasons set forth below, I respectfully recommend that the Defendants' renewed motion to dismiss be GRANTED as to Plaintiff's hostile workplace, free speech, and retaliation claims. I recommend that those claims be dismissed with prejudice. As to Plaintiff's Equal Protection Clause claim, I recommend that it be dismissed without prejudice.
PROCEDURAL HISTORY
Plaintiff filed his initial pro se complaint on May 30, 2019, naming the City, the New York City Department of Corrections (“DOC”), and Bishop as defendants. Compl. at 1, ECF No. 2. The DOC was dismissed from the case on July 18, 2019. Order of Service at 2, ECF No. 8. The initial complaint, liberally construed, raised three claims: (1) a Title VII claim against the City for allegedly subjecting Plaintiff to a hostile-work environment in the course of his employment in the MDC kitchen; (2) a Section 1983 claim against Defendants for allegedly violating Plaintiff's First Amendment rights by forbidding him from speaking Spanish while working in the kitchen; and (3) a Section 1983 claim against Defendants for allegedly retaliating against Plaintiff for filing a grievance against Bishop. See Compl. at 25, 27, 29.
Defendants filed a motion to dismiss on December 9, 2019. See Mot. to Dismiss, ECF No. 23; Mem. of Law in Support of Defs.' Mot. to Dismiss (“Defs.' Mem.”), ECF No. 24. As to Plaintiff's Title VII claim, Defendants argued that Plaintiff was not an “employee” under Title VII, that he had failed to exhaust his administrative remedies, and that he failed to plead the existence of a hostile-work environment based on a protected characteristic. As to Plaintiff's Section 1983 claims, Defendants argued that Plaintiff had failed to plead a First Amendment claim because there is no general right to speak a foreign language in prison, and thus there was no underlying constitutional violation to support a retaliation claim. Defs.' Mem. at 3-10. Defendants also argued that Bishop was entitled to qualified immunity on any First Amendment claim and that there were no factual allegations to support municipal liability for the City. Defs.' Mem. at 11-18.
On August 17, 2020, the Honorable Debra Freeman issued a Report and Recommendation.R&R, ECF No. 30. Judge Freeman recommended that Plaintiff's Title VII claim be dismissed with prejudice because Plaintiff did not qualify as a City “employee” under Title VII, as a matter of law. R&R at 42-43. Judge Freeman also recommended that Plaintiff's Section 1983 claim, alleging that his First Amendment rights were violated when he was prohibited from speaking Spanish in the workplace, be dismissed: (1) with prejudice as against Bishop, because Bishop was entitled to qualified immunity, and (2) without prejudice as against the City, with leave to amend to plead additional facts to support municipal liability. Id. As to Plaintiff's Section 1983 claim that his First Amendment rights were violated when he was fired in retaliation for filing grievances, Judge Freeman recommended that the claim be dismissed: (1) without prejudice as to Bishop, with leave to amend to allege Bishop's personal involvement in Plaintiff's termination, and (2) without prejudice as to the City, with leave to amend to plead additional facts to support municipal liability. Id. The Honorable Lewis J. Liman adopted the Report and Recommendation, only to the extent that it recommended granting dismissal of certain claims without prejudice. The Court expressed no views on the recommendation by Judge Freeman that some of the claims, as against Bishop and the City, should be dismissed with prejudice. See Order dated Nov. 23, 2020 (“11/23/20 Order”) at 3, ECF No. 32.
Judge Freeman's Report and Recommendation contains a recitation of the factual allegations in Plaintiff's Complaint. I assume the reader's familiarity with that report and therefore do not detail the factual allegations from that Complaint here.
Plaintiff filed a First Amended Complaint on January 8, 2021, largely repeating the same facts he had pled in the initial Complaint. See Am. Compl. at 1-4, ECF No. 33. By letter, Defendants renewed their motion to dismiss. ECF No. 34. Defendants argued that Plaintiff had failed to plead any additional facts showing: (1) that he was discriminated against based on his ethnicity; (2) that Bishop was personally involved in Plaintiff's termination from his work assignment; or (3) that the City had a policy, custom, or practice that caused the deprivation of his constitutional rights. Defs.' Ltr. at 2, Jan. 12, 2021, ECF No. 34.
Subsequently, on February 24, 2021, Plaintiff filed a Second Amended Complaint, again largely repeating the allegations from his First Amended Complaint. See SAC at 1-8. However, Plaintiff included a new claim: a Fourteenth Amendment claim alleging that his right to equal protection was violated by Bishop and the City when Plaintiff was prevented from speaking Spanish. Id. at 7-8. Additionally, in his Second Amended Complaint, Plaintiff announced his “withdrawal]” of his Title VII claim against Bishop and the City. Id. at 7-8. Plaintiff also appears to have dropped his Section 1983 First Amendment free speech claim. Compare SAC at 6-8, with Compl. at 27 (making a claim under First Amendment rights, “FREEDO[M] of SPEECH”) (emphasis in original). By letter, Defendants renewed their motion to dismiss, arguing that Plaintiff had “wholly failed to plead any additional facts.” Defs.' Ltr. at 1, Feb. 26, 2021, ECF No. 37. Defendants' letter did not address Plaintiff's new Equal Protection Clause claim, not previously raised in his prior two complaints. Plaintiff opposed the motion to dismiss on April 27, 2022. Pl.'s Ltr., ECF No. 39.
STANDARD OF REVIEW
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a complaint “must plead ‘enough facts to state a claim to relief that is plausible on its face.'” Green v. Dep't of Educ. of City of New York, 16 F.4th 1070, 1076-77 (2d Cir. 2021) (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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In determining if a claim is sufficiently plausible to withstand dismissal, a court must accept all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). The Court's function on a motion to dismiss is “not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient.” Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985). Nevertheless, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.
The Court is obligated to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the “strongest arguments that they suggest.” Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)); McKithen v. Brown, 481 F.3d 89, 96 (2d. Cir. 2007) (holding that pleadings and allegations of a pro se plaintiff must be construed liberally for the purposes of deciding motions to dismiss). The policy of liberally construing pro se submissions is driven by the understanding that “[i]mplicit in the right to self-representation is an obligation on the part of the court to make reasonable allowances to protect pro se litigants from inadvertent forfeiture of important rights because of their lack of legal training.” Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983).
DISCUSSION
Plaintiff has twice amended his complaint since the Court dismissed his initial complaint without prejudice. In her Report and Recommendation, Judge Freeman identified the specific areas where Plaintiff required more factual allegations to support his Section 1983 and Title VII claims. See R&R at 18, 37-38, 41-42. As discussed below, even construed liberally, Plaintiff has not pled any additional facts that would suffice to plausibly state a Section 1983 First Amendment retaliation or free speech claim, or a Title VII claim. I thus recommend dismissing those claims with prejudice. Plaintiff also has not pled sufficient facts to support a plausible Equal Protection Clause claim. Defendants, however, do not address the Equal Protection Clause claim in their renewed motion to dismiss, and the Second Amended Complaint is the first time Plaintiff raised this claim. Accordingly, I recommend that the Equal Protection Clause claim be dismissed without prejudice, with leave to amend to afford Plaintiff an opportunity to supplement his allegations.
A. Plaintiff's Title VII claim against the City
In his Second Amended Complaint, Plaintiff states that he withdraws his Title VII claim. See SAC at 8. Yet despite that statement, the Second Amended Complaint includes all of the factual allegations Plaintiff previously raised in his prior two complaints to support the Title VII claim. See, e.g., id. at 1-2, 5. To the extent Plaintiff may still be raising the Title VII claim against the City, for the reasons discussed below, I recommend that it be dismissed with prejudice because Plaintiff has not alleged a plausible claim.
Plaintiff asserts that he withdraws his Title VII claim “against Officer Bishop and the City of N.Y.” SAC at 8. Plaintiff's Title VII claim in his Second Amended Complaint, however, does not contain any factual allegations concerning Bishop. See id. at 8. Nevertheless, to the extent Plaintiff may have alleged a Title VII claim against Bishop, the claim, if not withdrawn, should be dismissed. “[Individuals are not subject to liability under Title VII.” Patterson v. Cnty. of Oneida, New York, 375 F.3d 206, 221 (2d Cir. 2004) (quoting Wrighten v. Glowski, 232 F.3d 119, 120 (2d Cir. 2000) (per curiam)).
Title VII forbids employment discrimination on the basis of “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a). To plausibly allege a prima facie case of disparate treatment, a plaintiff must plead that he (1) belongs to a protected class; (2) was qualified for the position; (3) suffered from an adverse employment action; and (4) must also include factual allegations showing at least “minimal support for the proposition that the employer was motivated by discriminatory intent.” Littlejohn v. City of New York, 795 F.3d 297, 311 (2d Cir. 2015); see also Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 83 (2d Cir. 2015).
A plaintiff may base a Title VII claim on allegations that he was subjected to a hostile-work environment. For this type of claim to survive a Rule 12(b)(6) challenge, the plaintiff must plausibly allege that the employer required him “to work in a discriminatorily hostile or abusive environment.” Littlejohn, 795 F.3d at 320. A hostile-work environment is one that is both “objectively severe and pervasive” (such that a reasonable person would find it hostile or abusive), and “subjectively” perceived as such, by the plaintiff. See, e.g., Bell v. McRoberts Protective Agency, Inc., No. 15-CV-963 (JPO), 2016 WL 7192083, at *4 (S.D.N.Y. Dec. 12, 2016). Further, the hostile environment must have been created by the defendant “because” of the plaintiff's race, color, religion, sex, or national origin. Id.
As Judge Freeman concluded in her Report and Recommendation, Plaintiff is not an “employee” as a matter of law under Title VII. See R&R at 14. Plaintiff's Title VII claim could be dismissed on that ground. However, even if Plaintiff were considered an “employee,” the claim fails because he has not alleged the existence of a hostile-work environment that was created because of his membership in a protected class.
In his Complaint, Plaintiff explained that he was detained at MDC on January 10, 2019, and began working in the kitchen in February 2019. Compl. at 23. Plaintiff regularly spoke Spanish with other detainees and officers while he worked in the kitchen. Id. Plaintiff alleged that the work environment in the kitchen became “hostile” when Bishop was assigned to the kitchen around the third week of February. Id. at 23. According to Plaintiff, Bishop would not allow inmates to speak in Spanish to one another, even other inmates that only spoke Spanish, making the kitchen conditions “intolerable and unpleasant due to [Bishop's] attitude.” Id. at 23, 25. On March 2, 2019, while working in the kitchen, Plaintiff asked a Spanish-speaking officer to pass him plastic bags used for preparing utensils for meals. Id. at 23. After hearing Plaintiff speak in Spanish, Bishop “told [Plaintiff] to get [his] personal belongings because [he] was going back to his housing unit[,] because he spoke in [S]panish.” Id. Plaintiff attached to his complaint an affidavit from a witness, Quincy Cannon, who also claimed that Bishop sent Plaintiff to his housing unit after speaking Spanish to a Spanish-speaking officer. Id. at 23, 31. Plaintiff filed a 311 complaint and a grievance against Bishop on March 2, 2019. Id. at 25. For a few days, Plaintiff went to work as usual. Id. However, on March 9, 2019, Plaintiff learned that he was fired from his kitchen job because he filed the complaint. Id.
In determining that Plaintiff had failed to state a Title VII claim, Judge Freeman concluded that “Plaintiff had alleged no facts, aside from Bishop's insistence that he and other inmates refrain from speaking Spanish, that would indicate that the City subjected him to severe and pervasive hostile work environment on the basis of his membership in any class protected by Title VII.” R&R at 17. In his Second Amended Complaint, Plaintiff alleges virtually the same facts. Plaintiff states that he is Puerto Rican, that he spoke Spanish with other individuals in the kitchen, and that Bishop reprimanded him and others for speaking in Spanish. SAC at 1-2. As he alleged in his initial complaint, Plaintiff claims that on March 2, 2019, he spoke to Officer Rodriguez in Spanish while working in the kitchen, resulting in his removal from the kitchen by Bishop, and his termination from his job after he filed a grievance against Bishop. Compare Compl. 23, 25 with SAC at 3-5. In his Second Amended Complaint, Plaintiff adds that Bishop “should not have removed” him from the kitchen without first speaking to Officer Rodriguez, and that Bishop “was discriminating against [him] because of [his] nationality and [his] race” when she removed him from the kitchen. SAC at 3-4.
To the extent Plaintiff is still raising a Title VII claim, the additional facts Plaintiff includes in his Second Amended Complaint are insufficient to support a plausible inference that the City subjected him to a hostile-work environment because of his ethnicity. Plaintiff states in conclusory terms that he felt discriminated against because he is Hispanic. See SAC at 1, 3. But such a threadbare allegation, lacking any factual detail, is insufficient to allege a prima facie case that Bishop or the City were motivated by a discriminatory intent. See Curry-Malcolm v. Rochester City Sch. Dist., 835 Fed.Appx. 623, 626 (2d Cir. 2020) (summary order) (upholding dismissal of pro se Title VII claim where plaintiff “fail[ed] to allege any details that might raise an inference of discrimination”); Malcolm v. Ass'n of Supervisors & Adm'rs of Rochester, 831 Fed.Appx. 1, 4 (2d Cir. 2020) (summary order) (upholding dismissal of pro se Title VII claim where plaintiff “fail[ed] to include any factual detail that would support even a minimal plausible inference” of discrimination). Further, Plaintiff alleges no facts, other than his allegation that he was prohibited from speaking Spanish, that would indicate that the City subjected him to a severe and pervasive hostile-work environment because of his ethnicity. See Salas v. New York City Dep't of Investigation, 298 F.Supp.3d 676, 684 (S.D.N.Y. 2018) (dismissingpro se Title VII claim where plaintiff had not “alleged sufficient non-conclusory facts to support her hostile-work-environment claim under Title VII”). Because Plaintiff was previously afforded leave to amend this claim and he has failed to allege any new factual allegations to support a plausible claim, I recommend that Plaintiff's Title VII claim against the City be dismissed with prejudice.
B. Plaintiff's First Amendment claims against Bishop and the City
In the Second Amended Complaint, Plaintiff asserts a Section 1983 First Amendment retaliation claim against the City, claiming that the City retaliated against him when he was fired from his kitchen job for having filed a grievance against Bishop. See SAC at 6 (“I make a claim against the City of New York in violation of my First Amendment rights”). Liberally construed, Plaintiff appears to also be raising a First Amendment free speech claim against Bishop. See id. at 8 (“I make a claim against officer Bishop” and stating that “Prisoner[s] shall be permitted to communicate with other prisoners . . . in any language”). But Plaintiff does not explicitly assert the First Amendment retaliation claim against Bishop, and nor does he appear to be asserting his First Amendment free speech claim against the City. See id. at 6-8. Nevertheless, because the Second Amended Complaint includes the same factual allegations that Plaintiff had in his initial Complaint to support the First Amendment retaliation and free speech claims against the City and Bishop, compare SAC at 1-6, with Compl. at 25, 27, and because Plaintiff is pro se, I construe Plaintiff's free speech and retaliation claims as being raised against both Bishop and the City.
For the reasons discussed below, I recommend that the Section 1983 First Amendment retaliation claim against the City be dismissed with prejudice because Plaintiff has not alleged facts from which to plausibly infer that his termination from his kitchen job was the result of a policy, custom, or practice of the City. In addition, to the extent that Plaintiff may still be raising a First Amendment retaliation claim against Bishop, the claim should be dismissed with prejudice because Plaintiff has not alleged any facts from which to infer that Bishop played any role in the decision to terminate him from his job in the kitchen. Lastly, assuming Plaintiff continues to raise a First Amendment free speech claim against the City and Bishop, I recommend that those claims be dismissed with prejudice. As to the City, Plaintiff has not alleged facts from which to plausibly infer that he was prevented from speaking Spanish because of a policy, custom, or practice by the City. And, as Judge Freeman explained in her Report and Recommendation, any claim that Bishop violated Plaintiff's First Amendment rights by preventing him from speaking Spanish should be dismissed because Bishop is entitled to qualified immunity. See R&R at 29-33.
“Individuals who have suffered a deprivation of a constitutionally protected right may seek relief under [42 U.S.C. § 1983].” Scheckells v. Goord, 423 F.Supp.2d 342, 346 (S.D.N.Y. 2006). To state a Section 1983 claim, a plaintiff must allege that: (1) a right secured by the Constitution or laws of the United States was violated, and (2) the right was violated by a person acting under the color of state law, or a “state actor.” West v. Atkins, 487 U.S. 42, 48-49 (1988). A claim under Section 1983 may be asserted against an individual state actor, see id., or a municipality, see Monell v. Dep't of Soc. Services, 436 U.S. 658, 691, 694 (1978). A municipality, however, cannot be held liable under Section 1983 under a theory of vicarious liability. Reynolds v. Giuliani, 506 F.3d 183, 190 (2d Cir. 2007). Instead, for Section 1983 liability to attach, a plaintiff must show that the alleged unconstitutional action was caused by an official municipal policy, custom, or practice. Kucharczyk v. Westchester Cnty., 95 F.Supp.3d 529, 538 (S.D.N.Y. 2015).
To state a Section 1983 claim against a municipality, a plaintiff must allege facts showing (1) the existence of a municipal policy, custom, or practice, and (2) that the policy, custom, or practice caused the violation of the plaintiff's constitutional rights. See Jones v. Town of East Haven, 691 F.3d 72, 80 (2d Cir. 2012); Bd. of Cnty. Comm'rs of Bryan Cnty. v. Brown, 520 U.S. 397, 403, 415 (1997). To plausibly plead the existence of an unconstitutional policy or custom, the plaintiff must allege either:
(1) a formal policy which is officially endorsed by the municipality; (2) actions taken or decisions made by government officials responsible for establishing municipal policies which caused the alleged violation of the plaintiff's civil rights;
(3) a practice so persistent and widespread that it constitutes a custom or usage and implies the constructive knowledge of policy-making officials; or (4) a failure by official policy-makers to properly train or supervise subordinates to such an extent that it amounts to deliberate indifference to the rights of those with whom municipal employees will come into contact.Berg v. Kelly, 343 F.Supp.3d 419, 425 n.2 (S.D.N.Y. 2018) (internal quotation marks and citations omitted). At the pleading stage, a plaintiff “cannot merely allege the existence of a municipal policy or custom” but, rather, “must allege facts tending to support, at least circumstantially, an inference that such a municipal policy or custom exists.” Kucharczyk, 95 F.Supp.3d at 540. Stated differently, “conclusory allegations of a municipal custom or practice of tolerating official misconduct are insufficient.” Id. Normally, “a custom or policy cannot be shown by pointing to a single instance of unconstitutional conduct by a mere employee of the [municipality].” Newtown v. City of New York, 566 F.Supp.2d 256, 271 (S.D.N.Y. 2008).
To survive a motion to dismiss, a plaintiff asserting a Section 1983 claim must allege facts showing a defendant's direct and personal involvement in the alleged constitutional deprivation. See Spavone v. New York State Dep't of Corr. Serv., 719 F.3d 127, 135 (2d Cir. 2013) (“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.”) (citation omitted). A defendant may not be held liable under Section 1983 solely because that defendant employs or supervises a person who violated the plaintiff's rights. See Iqbal, 556 U.S. at 676 (“Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior”). Instead, “[t]o hold a state official liable under § 1983, a plaintiff must plead and prove the elements of the underlying constitutional violation directly against the official.” Tangreti v. Bachmann, 983 F.3d 609, 620 (2d Cir. 2020).
2. Plaintiff's Section 1983 claims against the City
In her report, Judge Freeman recommended that Plaintiff be granted leave to amend his Section 1983 First Amendment retaliation and free speech claims, to add allegations from which to infer that the violation of his rights-either with respect to the prohibition from speaking Spanish or his termination from his job-were acts that occurred because of a policy, custom, or practice of the City or were decisions made by a City official responsible for establishing municipal policies. See R&R at 40-41. In his Second Amended Complaint, Plaintiff has not included any new allegations to support the existence of a policy, custom, or practice by the City pursuant to which his constitutional rights were violated. Plaintiff has not identified any formal policy, endorsed by the City, that either forbids speaking Spanish by inmates in a facility workplace, or that dictates the removal of inmates from assigned work duties based on the filing of grievances. Additionally, Plaintiff has not alleged facts from which to infer that the claimed constitutional violations-either with respect to being prohibited from speaking Spanish or the retaliatory termination-were actions taken, or decisions made, by City officials responsible for establishing municipal policies.
Finally, Plaintiff does not allege that the claimed violation of his rights resulted from a practice so persistent and widespread that it constitutes a custom or usage, for which a City official should have had constructive knowledge. See Gonzalez v. City of New York, 377 F.Supp.3d 273, 286 (S.D.N.Y. 2019) (dismissing Section 1983 retaliation claims against City where Plaintiff took “no steps toward articulating any of the four ways to satisfy the ‘policy or custom' prong required to state a claim under § 1983 against a municipality”).
Instead, Plaintiff cites to several laws, including portions of the New York City Administrative Code and Rules of the City of New York, to allege that Bishop acted against the City's anti-discrimination policies and that his termination was against the City's anti-retaliation policies. See SAC at 2-8. But those allegations only undermine Plaintiff's claim for municipal liability against the City, as they demonstrate that the City did not have in place a policy that authorized retaliatory or discriminatory acts by City employees. Because Plaintiff has not supplemented his complaint with additional allegations from which to support a Monell claim against the City, I recommend that Plaintiff's Section 1983 retaliation and free speech claims against the City be dismissed.
3. Plaintiff's Section 1983 claims against Bishop
To the extent that Plaintiff may still be raising Section 1983 retaliation and free speech claims against Bishop, both claims should be dismissed. As an initial matter, the First Amendment free speech claim should be dismissed because Bishop is entitled to qualified immunity, for the same reasons that Judge Freeman determined in her Report and Recommendation. See R&R at 2933. As to the retaliation claim, “[t]o state a First Amendment retaliation claim sufficient to withstand a motion to dismiss, a plaintiff must allege “(1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there was a causal connection between the protected speech and the adverse action.” Dolan v. Connolly, 794 F.3d 290, 294 (2d Cir. 2015) (citing Espinal v. Goord, 558 F.3d 119, 128 (2d Cir. 2009)). Plaintiff must also plead that the defendant had “direct and personal involvement in the alleged constitutional deprivation.” Tripathy v. City of New York, No. 20-CV-1646 (LLS), 2020 WL 3578198, at *4 (S.D.N.Y. June 30, 2020).
Defendants did not raise a qualified immunity defense to Plaintiff's First Amendment retaliation claim against Bishop in their motion to dismiss the Complaint, see Defs.' Mem. of Law, ECF No. 24 at 16. Nor did Defendants raise a qualified immunity defense to the retaliation claim in their letter renewing their motion to dismiss in response to Plaintiff's Second Amended Complaint. See ECF No. 37 at 3. As qualified immunity is an affirmative defense, Defendants bear the burden of showing that they are entitled to qualified immunity. See Bacon v. Phelps, 961 F.3d 533, 542 (2d Cir. 2020).
In his Complaint, Plaintiff alleged that he filed a 311 complaint and a grievance against Bishop on March 2, 2019, and that he was fired from his kitchen job on March 9, 2019, for having filed the grievance against Bishop. Compl. at 25. Plaintiff restated those same allegations in his Second Amended Complaint. SAC at 2-5. As Judge Freeman concluded, the allegations were sufficient to show that Plaintiff had engaged in protected speech-the filing of a grievance. R&R at 35. Moreover, because Plaintiff alleged that only a week elapsed between his grievance and his firing (the retaliatory act), and he was told that he was fired because he had filed a grievance against Bishop, Plaintiff had also pled enough facts to allege a causal connection between the protected speech and the adverse action. See R&R at 35-36.
However, the initial Complaint did not allege any facts from which to infer that Bishop was personally involved in the decision to terminate Plaintiff from his job in the kitchen. R&R at 37. That problem persists with the Second Amended Complaint. Plaintiff does not allege any additional facts concerning Bishop's personal involvement in the decision to terminate Plaintiff from his job in the kitchen. See generally SAC at 5-6. Nor does Plaintiff allege that any other individual, besides Bishop, was personally involved in his termination from his work assignment. Instead, Plaintiff admits that he does not “know if Officer Bishop participated” in his “termination.” SAC at 5. And although Plaintiff does add an allegation that he told a supervising officer (Captain Adams) about having filed a grievance against Bishop, SAC at 5, Plaintiff does not allege that Adams played a role in his termination. As such, because Plaintiff has not pled any facts to support Bishop's personal involvement in the alleged adverse action, I recommend that the Section 1983 free speech and retaliation claims as against Bishop be dismissed.
C. Plaintiff's New Equal Protection Claim against Bishop and the City
For the first time in his Second Amended Complaint, Plaintiff asserts a Fourteenth Amendment Equal Protection Clause claim against Bishop and the City. SAC at 8-9. Plaintiff claims that his rights for “non-discriminatory treatment and equal protection” were violated when Bishop prevented him from speaking Spanish. SAC at 7-8. In response to the Second Amended Complaint, Defendants renewed their prior motion to dismiss-filed in response to the First Amended Complaint-but did not address Plaintiff's Equal Protection Clause claim. See Defs.' Ltr. at 1-3, Feb. 26, 2022, ECF No. 37.
“[P]risoners are protected under the Equal Protection Clause of the Fourteenth Amendment from invidious discrimination based on race.” Wolff v. McDonnell, 418 U.S. 539, 556 (1974) (citation omitted). “The Equal Protection Clause requires that the government treat all similarly situated people alike.” Harlen Assocs. v. Inc. Village of Mineola, 273 F.3d 494, 499 (2d Cir. 2001) (citation omitted). To plead a facially valid equal protection claim, a plaintiff must allege: “(1) that he has been treated differently from similarly-situated inmates, and (2) that the discrimination is based upon a constitutionally impermissible basis, such as race.” Gilliam v. Baez, No. 15-CV-6631 (KMK), 2017 WL 476733, at *7 (S.D.N.Y. Feb. 2, 2017) (citation omitted); see also Phillips v. Girdich, 408 F.3d 124, 129-30 (2d Cir. 2005). Further, a plaintiff must include factual allegations demonstrating that the defendant was personally involved and “acted with discriminatory purpose,” Iqbal, 556 U.S. at 676; Giano v. Senkowski, 54 F.3d 1050, 1057 (2d Cir. 1995) (noting that evidence of “purposeful discrimination” is required to establish an Equal Protection Clause violation).
Here, Plaintiff's Second Amended Complaint does not allege a viable equal protection claim against Bishop or the City. Plaintiff appears to be claiming that his constitutional right to equal protection was violated when he, a Hispanic inmate, was prevented from speaking Spanish. “Hispanics as an ethnic group do constitute a suspect class for the purpose of equal protection analysis.” Soberal-Perez v. Heckler, 717 F.2d 36, 41 (2d Cir. 1983). But Plaintiff has not pled facts that would show that he was treated differently from other similarly-situated minority inmates. For instance, Plaintiff does not describe how other non-English speaking inmates were treated and whether they were allowed to speak a language other than English in the MDC. See SAC at 1-8. Additionally, Plaintiff has not alleged any facts tending to show discriminatory animus by Bishop or another defendant.
It might be possible, however, for Plaintiff to plead additional facts plausibly showing differential treatment among groups of inmates. See Rosado v. Herard, No. 12-CV-8943 (PGG) (FM), 2014 WL 1303513, at *8 (S.D.N.Y. Mar. 25, 2014) (finding plaintiff's “averments” that group therapy sessions were denied to him and other Spanish-speaking detainees, while provided to African American detainees, was more than sufficient to “allege the differential treatment of a suspect class”); see also Thongvanh v. Thalacker, 17 F.3d 256, 259 (8th Cir. 1994) (finding that Lao-speaking inmate was treated differently than Spanish- and German-speaking inmates in exceptions to “English only” mail policy). Plaintiff may also be able to plead factual allegations to support an inference that Bishop or another defendant acted with discriminatory intent. See Rosado, 2014 WL 1303513, at *8 (“discriminatory intent-at least at the pleading stage-can be inferred” where there is “no obvious medical or administrative reason for such a practice.”).
I recommend that Plaintiff's Equal Protection Clause claim against Bishop and the City be dismissed without prejudice, because Plaintiff was not previously afforded an opportunity to amend this claim and Defendants did not move to dismiss it. Plaintiff should thus be given an opportunity to replead the claim to (1) show how Spanish-speaking inmates were treated differently from other similarly-situated inmates speaking a foreign language; and (2) to allege additional facts that could show that Bishop or another City employee acted with discriminatory intent.
D. Further Leave to Amend
District courts generally should grant a pro se plaintiff an opportunity to amend a complaint to cure its defects unless amendment would be futile. See Hill v. Curcione, 657 F.3d 116, 123-24 (2d Cir. 2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). Indeed, the Second Circuit has cautioned that district courts “should not dismiss [a pro se complaint] without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (quoting Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999)) (emphasis added). Leave to amend is properly denied where all indications are that the pro se plaintiff will be unable to state a valid claim. See Valle v. Police Dep't Cnty. of Suffolk Cent. Records, No. 10-CV-2847, 2010 WL 3958432, at *2 (E.D.N.Y. Oct. 7, 2010); see also Cuoco, 222 F.3d at 112 (explaining that repleading is futile where the problem with the claim “is substantive [and] better pleading will not cure it”).
Plaintiff has already amended his complaint twice. And despite having guidance from Judge Freeman as to the kinds of factual allegations that would be necessary to support his claims, see R&R at 18, 37-38, 41-42, Plaintiff's Second Amended Complaint fails to include any additional factual support for the claims. Plaintiff's failure to provide additional factual allegations demonstrates that it would be futile to grant him yet another opportunity to amend his complaint. I thus recommend that Plaintiff's Title VII and Section 1983 First Amendment retaliation and free speech claims be dismissed with prejudice. See, e.g., Ward v. City of Middletown, No. 17-CV-5248 (NSR), 2022 WL 562949, at *8 (S.D.N.Y. Feb. 24, 2022); Bussey v. Phillips, 419 F.Supp.2d 569, 589 (S.D.N.Y. 2006); see also Dietrich v. Bauer, 76 F.Supp.2d 312, 351 (S.D.N.Y. 1999) (“[W]here a plaintiff is on notice of deficiencies in an initial pleading and has had the opportunity to cure them by a first amendment, dismissal with prejudice is proper when a complaint previously has been amended.”) (citation and internal quotation marks omitted). However, because Plaintiff raised his Equal Protection Clause claim for the first time in the Second Amended Complaint, I recommend that the claim be dismissed without prejudice, to afford Plaintiff at least one opportunity to amend his complaint to include additional factual support for the claim.
CONCLUSION
I respectfully recommend that Defendants' renewed motion to dismiss be GRANTED with prejudice as to Plaintiff's Title VII and Section 1983 First Amendment free speech and retaliation claims. Plaintiff's Section 1983 Equal Protection Clause claim should be dismissed without prejudice, with leave to amend. The Clerk of Court is directed to mail a copy of this Report and Recommendation to Plaintiff, at the address listed on the Docket for this case and shown below.
NOTICE
Plaintiff shall have seventeen days from the service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed. R. Civ. P. 6(a), (d) (adding three additional days only when service is made under Fed.R.Civ.P. 5(b)(2)(C) (mail), (D) (leaving with the clerk), or (F) (other means consented to by the parties)). Defendants shall have fourteen days from the service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure.
If Plaintiff files written objections to this Report and Recommendation, Defendants may respond to Plaintiff's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Alternatively, if Defendants file written objections, Plaintiff may respond to such objections within seventeen days after being served with a copy. Fed.R.Civ.P. 72(b)(2); see also Fed.R.Civ.P. 6(a), (d). Such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Lewis J. Liman at the United States Courthouse, 500 Pearl Street, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Liman. The failure to file these timely objections will result in a waiver of those objections for purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).