Opinion
Civ. 8:24-CV-121 (MAD/DJS)
02-29-2024
SCOTT PHILLIP LEWIS, Plaintiff, v. PAYMASTER PAYROLL SYSTEMS, INC., et al., Defendants.
SCOTT PHILLIP LEWIS Plaintiff Pro Se
APPEARANCES: OF COUNSEL:
SCOTT PHILLIP LEWIS Plaintiff Pro Se
REPORT-RECOMMENDATION AND ORDER
This matter was referred to the undersigned pursuant to L.R. 72.3(d).
DANIEL J. STEWART UNITED STATES MAGISTRATE JUDGE
The Clerk has sent the undersigned Plaintiffs civil Complaint for review pursuant to 28 U.S.C. § 1915(e). Dkt. No. 1, Compl. Plaintiff has not paid the filing fee, but instead submitted a Motion to Proceed in forma pauperis (“IFP”). Dkt. No. 2, IFP App. The Complaint alleges that Plaintiff was denied the full and equal enjoyment of services in violation of the Americans with Disabilities Act (“ADA”). Compl. at ¶¶ 43-92.
I. SUFFICIENCY OF THE COMPLAINT
A. Governing Legal Standard
28 U.S.C. § 1915(e) directs that, when a plaintiff seeks to proceed in forma pauperis, “(2) . . . the court shall dismiss the case at any time if the court determines that . . . (B) the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). Thus, even if a plaintiff meets the financial criteria to commence an action in forma pauperis, it is the court's responsibility to determine whether the plaintiff may properly maintain the complaint that he filed in this District before the court may permit the plaintiff to proceed with this action in forma pauperis. See Id. In reviewing a pro se complaint, the court has a duty to show liberality toward pro se litigants, see Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam), and should exercise “extreme caution . . . in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and both parties (but particularly the plaintiff) have had an opportunity to respond.” Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983) (internal citations omitted). Therefore, a court should not dismiss a complaint if the plaintiff has stated “enough facts to state a claim to relief that is plausible on its face.” 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) (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 556).
Although a court should construe the factual allegations in the light most favorable to the plaintiff, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Id. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 555). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not show[n] - that the pleader is entitled to relief.” Id. at 679 (quoting Fed.R.Civ.P. 8(a)(2)). Rule 8 of the Federal Rules of Civil Procedure “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 555). Thus, a pleading that only “tenders naked assertions devoid of further factual enhancement” will not suffice. Id. (internal quotation marks and alterations omitted).
B. Analysis of the Complaint
The allegations in the Complaint concern the alleged denial of services to Plaintiff regarding assistance with filing tax returns. See generally Compl. The Complaint is subject to dismissal at this point for several reasons.
First, Plaintiff seeks only monetary damages, while a Title III ADA claim does not permit recovery of compensatory damages, only injunctive relief. Hejmej v. Peconic Bay Med. Ctr., 2022 WL 5429675, at *7 (E.D.N.Y. July 5, 2022).
Second, it would appear, based on the presently state of the pleadings, that Plaintiffs claims are untimely. The statute of limitations for claims under the ADA in New York is three years. Shalto v. SFL Pizza Corp., 2020 WL 3577335, at *2 (E.D.N.Y. June 30, 2020); Johnson v. DHS/ICE, 2013 WL 6669232, at *4 (W.D.N.Y. Dec. 18, 2013). The first cause of action alleges that Defendants Paymaster Payroll Systems and Pompo failed to file or improperly filed federal tax returns on Plaintiffs behalf in 2015, 2016, and/or 2017. Compl. at ¶ 50. This Complaint was filed in 2024, and so any claim regarding those tax filings is clearly untimely. Plaintiff does allege communication with Defendant Pompo on January 10, 2024, id. at ¶¶ 62-63, but alleges only that Pompo mocked him in return, which does not allege a denial of service within the meaning of the ADA. Similarly, the second cause of action relates to allegations against Defendant Cardarelli concern tax issues in 2015 and 2016 - plainly outside the applicable limitations period.
“[A] court should not dismiss a complaint filed by a pro se litigant 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.'” Bruce v. Tompkins Cnty. Dep 't of Soc. Servs. ex rel. Kephart, 2015 WL 151029, at *4 (N.D.N.Y. Jan. 7, 2015) (quoting Branum v. Clark, 927 F.2d 698, 704-05 (2d Cir. 1991)). Each of the deficiencies identified above could potentially be rectified by more detailed pleading and so the Court recommends that the Complaint be dismissed, but that Plaintiff be afforded an opportunity to amend. Plaintiff is advised that any such amended complaint shall supersede and replace in its entirety the previous Complaint filed by Plaintiff. If this recommendation is accepted and Plaintiff is permitted to amend his Complaint, Plaintiff is further warned that the failure to submit an amended complaint could result in dismissal of this action.
III. CONCLUSION
For the reasons stated herein, it is hereby
RECOMMENDED, that Plaintiffs Complaint be DISMISSED with leave to amend; and it is
ORDERED, that the Clerk of the Court serve a copy of this Report-Recommendation and Order upon the parties to this action.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); see also 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72 & 6(a).
If you are proceeding pro se and are served with this Order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the order was mailed to you to serve and file objections. Fed.R.Civ.P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed.R.Civ.P. 6(a)(1)(C).