Summary
recognizing unsettled Circuit law as to whether a plaintiff must plead that a Title II ADA violation was motivated by either “discriminatory animus or ill will stemming from plaintiff's disability,” and deferring consideration of the issue at the pleading stage
Summary of this case from Ramrattan v. GuzmanOpinion
1:20-CV-1012
02-04-2021
SARAH CONSTANTINE, Plaintiff, v. NYS DEAF COMMUNITY et al., Defendants.
APPEARANCES: Sarah Constantine Plaintiff, Pro Se 251 Old Post Road Ballston Spa, NY 12020
| APPEARANCES: | OF COUNSEL: |
| Sarah ConstantinePlaintiff, Pro Se251 Old Post RoadBallston Spa, NY 12020 |
Pro se plaintiff Sarah Constantine ("plaintiff") filed this civil rights action alleging that defendants discriminated against her because she is deaf. On November 6, 2020, U.S. Magistrate Judge Miroslav Lovric advised by Report & Recommendation that plaintiff's complaint be accepted in part for filing and dismissed in part without leave to amend. Dkt. No. 4. After plaintiff filed with the Court a notice of change of address, Dkt. No. 5, plaintiff was given an additional period of time in which to lodge any objections to Judge Lovric's Report & Recommendation, Dkt. No. 6. Plaintiff has not filed an objection.
Upon review for clear error, the Report & Recommendation is accepted and adopted in all respects. See FED. R. CIV. P. 72(b).
Therefore, it is
ORDERED that
1. Plaintiff's complaint is ACCEPTED for filing with respect to Plaintiff's claims pursuant to Title II of the ADA against the DMV and defendants Merola and the five unnamed employees of the DMV in their official capacities;
2. Plaintiff's complaint is DISMISSED without leave to amend to the extent it asserts claims pursuant to Title V against the DMV for failure to state a claim under 28 U.S.C. § 1915(e)(1)(B)(ii);
3. Plaintiff's complaint is DISMISSED without leave to amend to the extent that it asserts claims under (1) Title II of the ADA against defendants Merola and the five unnamed DMV employees in their individual capacities; and (2) Title V of the ADA against defendants Merola and the five unnamed DMV employees in either their official or individual capacities, for failure to state a claim under 28 U.S.C. § 1915(e)(1)(B)(ii); and
4. Plaintiff's complaint is DISMISSED with leave to amend any claims brought on behalf of "NYS Deaf Community" because plaintiff, who is not an attorney, cannot represent other plaintiffs.
The Clerk of the Court is directed to serve a copy of this Decision and Order upon plaintiff in accordance with the Local Rules.
IT IS SO ORDERED. Dated: February 4, 2021
Utica, New York.
/s/_________
United States District Judge