Opinion
19-CV-4411 (JPO)
01-22-2020
AMY VICTORIA RAMIREZ RODRIGUEZ, Plaintiff, v. GEORGE KOROGHLIAN; LEE, NOLAN & KOROGHLIAN, LLC, Defendants.
ORDER OF SERVICE :
Plaintiff brings this pro se action alleging that Defendants discriminated against her on the basis of her disabilities, in violation of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12112-12117, the Family and Medical Leave Act, and New York and New Jersey state law. ). Plaintiff also cites Title VII of the Civil Rights Act of 1964, but she does not allege facts suggesting that she was discriminated against based on a characteristic covered by that statute. By order dated May 29, 2019, the Court granted Plaintiff's request to proceed in forma pauperis.
STANDARD OF REVIEW
The Court must dismiss an in forma pauperis complaint, or any portion of the complaint, that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); see Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must also dismiss a complaint when the Court lacks subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3).
While the law mandates dismissal on any of these grounds, the court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the "strongest [claims] that they suggest," Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original). But the "special solicitude" in pro se cases, id. at 475 (citation omitted), has its limits — to state a claim, pro se pleadings still must comply with Rule 8 of the Federal Rules of Civil Procedure, which requires a complaint to make a short and plain statement showing that the pleader is entitled to relief.
DISCUSSION
A. Title VII Claim
Title VII provides that "[i]t shall be an unlawful employment practice for an employer ... to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex or national origin." 42 U.S.C. § 2000e-2(a).
Because there are no allegations in the amended complaint suggesting that Defendants discriminated against Plaintiff on the basis of a characteristic that Title VII protects, her claim under that statute is dismissed for failure to state a claim on which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii).
B. Order of Service
Because Plaintiff has been granted permission to proceed IFP, she is entitled to rely on the Court and the U.S. Marshals Service to effect service. Walker v. Schult, 717 F.3d. 119, 123 n.6 (2d Cir. 2013); see also 28 U.S.C. § 1915(d) ("The officers of the court shall issue and serve all process . . . in [IFP] cases."); Fed. R. Civ. P. 4(c)(3) (the court must order the Marshals Service to serve if the plaintiff is authorized to proceed IFP)). Although Rule 4(m) of the Federal Rules of Civil Procedure generally requires that the summons and complaint be served within 90 days of the date the complaint is filed, Plaintiff is proceeding IFP and could not have served the summons and complaint until the Court reviewed the complaint and ordered that a summons be issued. The Court therefore extends the time to serve until 90 days after the date the summons is issued. If the complaint is not served within that time, Plaintiff should request an extension of time for service. See Meilleur v. Strong, 682 F.3d 56, 63 (2d Cir. 2012) (holding that it is the plaintiff's responsibility to request an extension of time for service); see also Murray v. Pataki, 378 F. App'x 50, 52 (2d Cir. 2010) ("As long as the [plaintiff proceeding IFP] provides the information necessary to identify the defendant, the Marshals' failure to effect service automatically constitutes 'good cause' for an extension of time within the meaning of Rule 4(m).").
To allow Plaintiff to effect service on Defendants Lee, Nolan & Koroghlian, LLC, and George Koroghlian through the U.S. Marshals Service, the Clerk of Court is instructed to fill out a U.S. Marshals Service Process Receipt and Return form (USM-285 form) for each of these defendants. The Clerk of Court is further instructed to issue a summons and deliver to the Marshals Service all the paperwork necessary for the Marshals Service to effect service upon these defendants.
Plaintiff must notify the Court in writing if her address changes, and the Court may dismiss the action if Plaintiff fails to do so.
CONCLUSION
The Court dismisses Plaintiff's claims under Title VII of the Civil Rights Act of 1964. See 28 U.S.C. § 1915(e)(2)(B)(ii).
The Clerk of Court is instructed to complete the USM-285 forms with the addresses for Lee, Nolan & Koroghlian, LLC, and George Koroghlian and deliver all documents necessary to effect service to the U.S. Marshals Service.
The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue). SO ORDERED. Dated: January 22, 2020
New York, New York
/s/_________
J PAUL OETKEN
United States District Judge
DEFENDANTS AND SERVICE ADDRESSES
1. Lee, Nolan & Koroghlian, LLC
622 Third Avenue, 9th Floor
New York, N.Y. 10017
2. George Koroghlian
622 Third Avenue, 9th Floor
New York, N.Y. 10017