Opinion
21-CV-4296 (LTS)
05-16-2022
DAVID I. GRAZETTE, Plaintiff, v. MANPOWER; STEFANI PEREZ; MAXIMUS; SHELLY R. LUCAS; RODNEY MENELAS, Defendants.
ORDER OF DISMISSAL WITH LEAVE TO REPLEAD
LAURA TAYLOR SWAIN, CHIEF UNITED STATES DISTRICT JUDGE
Plaintiff, who is appearing pro se, brings this action alleging “unfair business practices, ” and “defamation of character.” (ECF No. 2 at 2.). By order dated May 16, 2022, the Court granted Plaintiff's request to proceed without prepayment of fees, that is, in forma pauperis (IFP). For the reasons set forth below, the Court dismisses the complaint, but grants Plaintiff thirty days' leave to replead his claims.
Plaintiff filed this action with an insufficient request to proceed in forma pauperis (IFP), that is, without prepayment of fees. By order dated September 20, 2021, the Court directed Plaintiff to pay the filing fees or submit a completed and signed amended IFP application. (ECF No. 6.) Plaintiff submitted an amended IFP application on September 23, 2021. (ECF No. 7.) Because Plaintiff's ability to pay the fees remained unclear, the Court, by order dated February 15, 2022, granted Plaintiff a final opportunity to pay the filing fees or submit a second amended IFP application. (ECF No. 8.) Plaintiff emailed the Court on March 6, 2022, indicating that he is “still largely unemployed, ” and in fear for his safety, and thus hesitant to respond to the Court's order. The Court has granted Plaintiff's request to proceed IFP based upon the information contained in his amended request.
STANDARD OF REVIEW
The Court must dismiss an IFP 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.
Rule 8 requires a complaint to include enough facts to state a claim for relief “that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible if the plaintiff pleads enough factual detail to allow the Court to draw the inference that the defendant is liable for the alleged misconduct. In reviewing the complaint, the Court must accept all well-pleaded factual allegations as true. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). But it does not have to accept as true “[t]hreadbare recitals of the elements of a cause of action, ” which are essentially just legal conclusions. Twombly, 550 U.S. at 555. After separating legal conclusions from well-pleaded factual allegations, the Court must determine whether those facts make it plausible - not merely possible - that the pleader is entitled to relief. Id.
BACKGROUND
Plaintiff alleges the following:
I, David Grazette was dismissed from the New York State “COVID-19” vaccine operation with Maximus, the New York State partner with The New York State
Department of Health, employed by Manpower, a job staffing human resource company on April 26, 2021 - at least what I currently believe to be the date.
The dissmissal was one sided because, I, David Grazette, wanted to save the lives of New Yorkers for as long as I was lead to believe the operation would run.
Shelly R. Lucas and Rodney Menelas had other plans.
After scheduling what Ive lead to, and what appears to be most of what I believe to be the United States ‘life saving vaccines', I, David Grazette, was let go for not setting up a network in apartment I currently reside!
Since the day I refused to comply I have been put under investigations and witheld federal and state employment protections.(ECF No. 2 at 5-6.)
The Court quotes the complaint verbatim. All errors are in the original.
He seeks “$22,888. Insurrection. 1000 mile journey.” (Id. at 6.) Plaintiff has used the Court's general complaint form and has not checked any boxes to indicate the basis for federal court jurisdiction of his claims.
DISCUSSION
Because Plaintiff appears to assert that he was wrongfully terminated from employment, the Court construes Plaintiff's allegations as asserting employment discrimination claims.
A. Employment Discrimination Claims
At the pleading stage in an employment discrimination action, “a plaintiff must plausibly allege that (1) the employer took adverse employment action against him, and (2) [a protected trait, such as his race, color, sex, age, or disability] was a motivating factor in the employment decision.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 86 (2d Cir. 2015). As to the second element, a plaintiff alleging age discrimination must also allege “that the relevant protected trait - [ . . . ] - ‘was the ‘but-for' cause of the employer's adverse action.'” Mazzeo v. Mnuchin, 751 Fed.Appx. 13, 14 (2d Cir. 2018) (quotation omitted). The plaintiff may state a claim by “alleging facts that directly show discrimination or facts that indirectly show discrimination by giving rise to a plausible inference of discrimination.” Vega, 801 F.3d at 87.
The federal antidiscrimination statutes prohibit employers from mistreating an individual because of the individual's protected characteristics, Patane v. Clark, 508 F.3d 106, 112 (2d Cir. 2007), or retaliating against an employee who has opposed any practice made unlawful by those statutes, see Crawford v. Metro. Gov't, 555 U.S. 271, 276 (2009) (holding that conduct is protected when it “confront[s], ” “resist[s], ” or “withstand[s]” unlawful actions). Mistreatment at work that occurs for a reason other than an employee's protected characteristic or opposition to unlawful discriminatory conduct, however, is not actionable under these statutes. See Chukwuka v. City of New York, 513 Fed.Appx. 34, 36 (2d Cir. 2013) (quoting Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001)).
Plaintiff's complaint is short and plain, but it does not show that he is entitled to relief. Plaintiff does not allege facts showing that Defendants' actions were based on any federally protected characteristics. Plaintiff does not identify his race or any other characteristics that are protected under federal law. The Court is therefore unable to determine whether Plaintiff is entitled to relief. The Court will give Plaintiff an opportunity to amend his complaint to allege facts showing that his employment claim arises from alleged discrimination based on his race, sex, age, disability, or other characteristics that are protected by federal law.
B. Exhaustion of Administrative Remedies
Plaintiff does not allege any facts indicating that he has exhausted his administrative remedies by filing a charge of discrimination with the Equal Employment Opportunity Commission (EEOC). Title VII provides that as a general rule, a plaintiff must commence a civil action within ninety days of receipt of notice of dismissal or termination of proceedings by the EEOC. 42 U.S.C. § 2000e-5(f)(1); 29 U.S.C. § 626(e); Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 149 (1984). The law requires that a plaintiff making an employment discrimination claim must exhaust their administrative remedies with the EEOC by filing a charge of discrimination within 300 days. 29 U.S.C. § 626(d)(1); Tewksbury v. Ottaway Newspapers, 192 F.3d 322, 328-29 (2d Cir. 1999). The filing of a timely charge with the EEOC and the issuance of a “right to sue” letter or notice by the EEOC are conditions precedent to the filing of a civil action in federal court. 29 U.S.C. § 626(e).
Although Plaintiff is not required to plead and prove that he has met these requirements, see Hardaway v. Hartford Pub. Works Dep' t, 879 F.3d 486 (2d Cir. 2018) (holding that administrative exhaustion under Title VII is an affirmative defense and not a pleading requirement), a defendant may raise failure to exhaust as a defense that precludes relief on a complaint that states an otherwise viable federal discrimination claim. If Plaintiff has exhausted his administrative remedies, he may wish to include in his amended complaint facts regarding any charge he filed with the EEOC. If Plaintiff chooses to amend his complaint to detail any discrimination claims he may have, he should complete Section V of the Court's amended complaint form for employment discrimination, which includes questions that cover the issue of administrative remedy exhaustion.
C. Defamation Claim
There is no federal cause of action for defamation, slander, or libel, because one's reputation is not a right, privilege or immunity protected by the Constitution or laws of the United States. Paul v. Davis, 424 U.S. 693, 711-13 (1976) (“stigma” to reputation, by itself, is not a liberty interest sufficient to invoke the Due Process Clause); Valmonte v. Bane, 18 F.3d 992, 1001 (2d Cir. 1994) (“[D]efamation is simply not enough to support a cognizable liberty interest.”). The Court therefore construes Plaintiff's claim of defamation as one brought under state law. Plaintiff has not alleged facts indicating that the Court would have jurisdiction to consider this claim if he has not stated a federal claim.
To establish diversity jurisdiction under 28 U.S.C. § 1332, a plaintiff must first allege that the plaintiff and the defendant are citizens of different states. Wis. Dep't of Corr. v. Schacht, 524 U.S. 381, 388 (1998). In addition, the plaintiff must allege to a “reasonable probability” that the claim is in excess of the sum or value of $75,000.00, the statutory jurisdictional amount. See 28 U.S.C. § 1332(a); Colavito v. N.Y. Organ Donor Network, Inc., 438 F.3d 214, 221 (2d Cir. 2006) (citation and internal quotation marks omitted). Plaintiff has made no allegations here regarding his state citizenship or defendants' state citizenship, and it appears that there is no basis for diversity jurisdiction because the events and actors all appear to be connected to New York and he seeks less than $75,000 in damages.
A district court can exercise “supplemental” jurisdiction of a state claim that is closely related to a federal claim but may decline to exercise supplemental jurisdiction over state-law claims when it “has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). Because Plaintiff does not currently state a federal claim, the Court declines, at this time, to exercise supplemental jurisdiction over the state-law defamation claim that Plaintiff is attempting to raise in his complaint. See Martinez v. Simonetti, 202 F.3d 625, 636 (2d Cir. 2000) (directing dismissal of supplemental state-law claims where no federal claims remained).
D. Leave to Replead
Plaintiff proceeds in this matter without the benefit of an attorney. District courts generally should grant a self-represented 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)). Based on the allegations in the current complaint, the Court is doubtful that Plaintiff can cure the deficiencies in the complaint to state a valid claim but, in an abundance of caution, the Court grants Plaintiff sixty days' leave to replead his claims. The amended complaint must contain a short and plain statement showing that he is entitled to relief. The Court strongly encourages Plaintiff to bear in mind the legal principles explained above when preparing the amended complaint.
Plaintiff must provide a short and plain statement of the relevant facts supporting each claim against each defendant. If Plaintiff has an address for any named defendant, Plaintiff must provide it. Plaintiff should include all of the information in the amended complaint that Plaintiff wants the Court to consider in deciding whether the amended complaint states a claim for relief. That information should include:
a) the names and titles of all relevant people;
b) a description of all relevant events, including what each defendant did or failed to do, the approximate date and time of each event, and the general location where each event occurred;
c) a description of the injuries Plaintiff suffered; and
d) the relief Plaintiff seeks, such as money damages, injunctive relief, or declaratory relief.
Essentially, Plaintiff's amended complaint should tell the Court: who violated his federally protected rights and how; when and where such violations occurred; and why Plaintiff is entitled to relief.
Plaintiff may consider contacting the New York Legal Assistance Group's (NYLAG) Legal Clinic for Pro Se Litigants in the Southern District of New York, which is a free legal clinic staffed by attorneys and paralegals to assist those who are representing themselves in civil lawsuits in this court. A copy of the flyer with details of the clinic is attached to this order. The clinic is currently available only by telephone.
Because Plaintiff's amended complaint will completely replace, not supplement, the original complaint, any facts or claims that Plaintiff wants to include from the original complaint must be repeated in the amended complaint.
CONCLUSION
The Court grants Plaintiff sixty days' leave to replead his claims in an amended complaint that complies with the standards set forth above. Plaintiff must submit the amended complaint to this Court's Pro Se Intake Unit within sixty days of the date of this order, caption the document as an “Amended Complaint, ” and label the document with docket number 21-CV-4296 (LTS). An Amended Complaint for Employment Discrimination form is attached to this order. No summons will issue at this time. If Plaintiff fails to submit an amended complaint before this deadline, the Court may enter judgment dismissing his complaint without further advance notice.
The Clerk of Court is instructed to hold this matter open on the docket until a civil judgment is entered.
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 IFP 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.