Opinion
10-CV-2856 (SLT).
July 1, 2010
MEMORANDUM AND ORDER
On June 9, 2010, plaintiff Carolyn Schenk commenced this pro se action by facsimile ("fax") seeking a temporary restraining order. The Court grants plaintiff's request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 for the purpose of this order and directs plaintiff to file an amended complaint as set forth below.
At first, plaintiff faxed the complaint to the Court on June 4, 2010. As it was sent by fax, the complaint was returned to plaintiff. On June 9, 2010, plaintiff faxed the same complaint to the chambers of the Honorable Raymond J. Dearie, Chief Judge, in connection with a separate request for permission to fax documents to the Court. By order dated June 30, 2010, the Chief Judge denied plaintiff's request to fax documents. See In re Carolyn Schenk, 10-MC-304 (RJD). The Court has also denied plaintiff's prior requests to fax documents in a separate pending case against the City of New York. Schenk v. City of New York, 08-CV-914 (SLT). Plaintiff is, therefore, warned that any future submissions to the Court must not be faxed and that any faxed documents will be returned to her.
Background
Plaintiff alleges that defendants have violated her rights under the Americans with Disabilities Act by closing her bank account. Plaintiff seeks an emergency hearing and an order directing defendants to open her bank account and allow access to her funds. Plaintiff alleges that she asked for a "special accommodation" and that "in retaliation [her] account was closed, even after plaintiff was told it would not be closed." Complaint at faxed p. 11.
Discussion A. Standard of Review
B. Americans with Disabilities Act ("ADA")
pro se pro se Erickson v. Pardus551 U.S. 8994Sealed Plaintiff v. Sealed Defendant537 F.3d 185191in forma pauperis Bell Atlantic Corp. v. Twombly550 U.S. 544570Ashcroft v. Iqbal129 S.Ct. 19371949Id. Twombly 550 U.S. at 555557Id.42 U.S.C. § 12182 42 U.S.C. § 12188Powell v. Nat'l Bd. of Med. Exam'rs364 F.3d 7986 See Bowen v. Rubin 385 F. Supp. 2d 168180Coddington v. Adelphi Univ.45 F. Supp. 2d 211216
Here, plaintiff alleges that her bank account was closed in retaliation for seeking a special accommodation for her alleged disability. Plaintiff's allegation that defendants have violated the ADA is, at present, conclusory. For example, plaintiff fails to provide the date and a description of the accommodation she requested from defendants. Also, it is unclear why plaintiff's bank account was closed and whether she was provided with any reasons for its closure. Because a pro se complaint must be construed liberally, see Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and should not be dismissed without granting the pro se plaintiff leave to amend "at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated," Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999) ( per curiam) (quoting Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991)) (internal quotation marks omitted), the Court directs plaintiff to file an amended complaint within 30 days from receipt of this order.
Furthermore, plaintiff has not provided the Court with sufficient information to support a temporary restraining order. "The purpose of a temporary restraining order is to preserve an existing situation in statu quo until the court has an opportunity to pass upon the merits of the demand for a preliminary injunction." Garcia v. Yonkers Sch. Dist., 561 F.3d 97, 107 (2d Cir. 2009) (quoting Pan Am. World Airways, Inc. v. Flight Eng'rs' Int'l Ass'n, PAA Chapter, 306 F.2d 840, 842 (2d Cir. 1962). "A party seeking a preliminary injunction ordinarily must show: (1) a likelihood of irreparable harm in the absence of the injunction; and (2) either a likelihood of success on the merits or sufficiently serious questions going to the merits to make them a fair ground for litigation, with a balance of hardships tipping decidedly in the movant's favor." Doninger v. Niehoff, 527 F.3d 41, 47 (2d Cir. 2008) (citation omitted). A temporary restraining order, like a preliminary injunction, is an extraordinary remedy that will not be granted lightly.See, e.g., Borey v. National Union Fire Ins. Co., 934 F.2d 30, 33 (2d Cir. 1991).
Conclusion
Accordingly, plaintiff's request for a temporary restraining order directing Citibank to re-open her bank account is DENIED. The Court, however, grants plaintiff an opportunity to amend this complaint within 30 days in order to state a claim under the ADA against each defendant named in the caption and body of the amended complaint. If plaintiff elects to file an amended complaint, that submission should be captioned "AMENDED COMPLAINT" and bear the same docket number as this order, 10-CV-2856 (SLT). If available, plaintiff should attach as exhibits to the amended complaint, copies of any documents or correspondence in support of her claims. Plaintiff is advised that she may not fax her amended complaint to the Court.
If plaintiff fails to file an amended complaint within the time allowed, the complaint shall be dismissed without prejudice. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of any appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.