Opinion
1:24-CV-755 (MAD/DJS)
11-05-2024
JOHN TRISVAN, Plaintiff, v. THE NEW SCHOOL CENTER FOR MEDIA, Defendant.
JOHN TRISVAN Plaintiff, Pro Se
JOHN TRISVAN 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
I. BACKGROUND
The Complaint in this action was originally filed on June 7, 2024. Dkt. No. 1. Plaintiff's application to proceed in forma pauperis was granted. Dkt. No. 5. This Court issued a Report-Recommendation recommending that the Complaint be dismissed, with leave to amend certain claims, because it failed to comply with the requirements of the Federal Rules of Civil Procedure for providing adequate notice of the nature of the claims presented. Dkt. No. 6. prejudice. Id. The District Court adopted the Report-Recommendation. Dkt. No. 7. Plaintiff has now filed an Amended Complaint, Dkt. No. 10, Am. Compl., which is before the Court for review under 28 U.S.C. § 1915(e).
The same standards previously articulated for governing the legal sufficiency of a pleading govern the Amended Complaint as well. See generally Dkt. No. 5 at pp. 23. Broadly stated, the Court's review entails assessing whether “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).
The gravamen of the Amended Complaint is the allegation that Defendant denied Plaintiff access to funds necessary for his education and then improperly removed him from a program of study at Defendant. Am. Compl. at p. 2.
II. DISCUSSION
The Court begins by noting that certain claims have previously been dismissed from this action with prejudice. Those included claims under 20 U.S.C. § 1097, New York Education Law § 6401, 15 U.S.C. § 41, 18 U.S.C. § 371, and New York Business Corporation Law § 720. Dkt. No. 7 at pp. 2-3. To the extent, the Amended Complaint attempts to reassert such claims, see Am. Compl. at p. 1, it is clearly improper and those claims are not properly before the Court. The remaining potential claims identified in the Amended Complaint are considered in turn below.
1. Title VI of the Civil Rights Act of 1964
Under Title VI of the Civil Rights Act, “[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U.S.C. § 2000d. “To state a claim of discrimination under Title VI, ‘the plaintiff must show, inter alia, that the defendant discriminated against him on the basis of race, that discrimination was intentional, and that the discrimination was a substantial or motivating factor for the defendant's actions.'” Roggenbach v. Touro Coll. of Osteopathic Med., 7 F.Supp.3d 338, 347 (S.D.N.Y. 2014) (quoting Tolbert v. Queens Coll., 242 F.3d 58, 69 (2d Cir. 2001)).
Plaintiff fails to adequately state a claim under Title VI. The initial ReportRecommendation noted that Plaintiff had failed to allege his membership in a protected class, which Plaintiff has now remedied. Am. Compl. at p. 2. The ReportRecommendation also noted, however, that “Plaintiff is required to ‘specifically allege the events claimed to constitute intentional discrimination as well as circumstances giving rise to a plausible inference of racially discriminatory intent.'” Dkt. No. 6 at pp. 6-7 (quoting Roggenbach v. Touro Coll. of Osteopathic Med., 7 F.Supp.3d at 347). In this regard, the Amended Complaint remains deficient. It contains no allegation regarding alleged discrimination beyond identifying Plaintiff as African-American. “A plaintiff alleging racial . . . discrimination by a university must do more than recite conclusory assertions.” Yusuf v. Vassar Coll., 35 F.3d 709, 712-14 (2d Cir. 1994). Plaintiff has not done so here, pointing to no specific allegations that any actions taken toward him were motivated in any way by race.
2. Americans with Disabilities Act
Plaintiff also appears to claim that Defendant discriminated against him by denying him disability accommodations. The original Report-Recommendation noted that Plaintiff had failed to specifically identify the basis for his disability claim. Dkt. No. 10 at p. 2. The Amended Complaint alleges only that he suffers from “a mental illness/disability” and was “called slow as well as retarded” by unidentified individuals. Am. Compl. at p. 2. This allegation does not cure the previously identified defect.
A “disability” is defined as a “physical or mental impairment that substantially limits one or more major life activities.” 42 U.S.C. § 12102(1)(A). In general, plaintiffs who seek to state a claim for disability discrimination under the ADA must establish “that (1) they are ‘qualified individuals' with a disability; (2) that the defendants are subject to the ADA; and (3) that plaintiffs were denied the opportunity to participate in or benefit from defendants' services, programs, or activities, or were otherwise discriminated against by defendants, by reason of plaintiffs' disabilities.” Henrietta D. v. Bloomberg, 331 F.3d 261, 272-73 (2d Cir. 2003). “Not every impairment is a ‘disability' within the meaning of the ADA.” Williams v. N.Y.C. Dep't of Educ., 2020 WL 906386, *4 (S.D.N.Y. Feb. 25, 2020) (quoting Capobianco v. City of New York, 422 F.3d 47, 56 (2d Cir. 2005)). “[A] qualifying disability must limit a major life activity and the limitation must be substantial.” O'Hara v. Bd. of Coop. Educ. Servs., S. Westchester, 2020 WL 1244474, *12 (S.D.N.Y. Mar. 16, 2020). Accordingly, “[t]o successfully plead a qualifying disability under the ADA, a plaintiff ‘must allege which major life activity or activities their impairment substantially affects.'” Langella v. Mahopac Cent. Sch. Dist., 2020 WL 2836760, *9 (S.D.N.Y. May 31, 2020) (quoting Laface v. E. Suffolk BOCES, 2020 WL 2489774, *10 (E.D.N.Y. May 18, 2020)). “[M]ajor life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.” 42 U.S.C. § 12102(2)(A). Plaintiff's Amended Complaint, therefore, fails to allege that he suffers from a qualifying disability. The Amended Complaint also fails to make specific allegations tying his alleged disability to any of the actions he contends were engaged in by Defendant.
Furthermore, “[a]lthough Title III grants a private right of action, it allows only for injunctive relief.” Bitetto v. D'Angelo, 2016 WL 8116678, at *2 (N.D.N.Y. Dec. 21, 2016). To the extent Plaintiff seeks monetary compensation for the alleged discrimination, his Complaint is also insufficient in this regard.
3. Truth in Lending Act
“The Truth in Lending Act is a consumer protection statute that serves ‘the broad purpose of promoting the informed use of credit by assuring meaningful disclosure of credit terms to consumers.'” In re Ditech Holding Corp., 2024 WL 4343557, at *5 (Bankr. S.D.N.Y. Sept. 27, 2024) (quoting Baker v. Sunny Chevrolet, Inc., 349 F.3d 862, 864 (6th Cir. 2003)). It “generally only applies to creditors, who are defined as person[s] who both (1) regularly extend[ ], whether in connection with loans, sales of property or services, or otherwise, consumer credit ... and (2) [are] the person[s] to whom the debt arising from the consumer credit transaction is initially payable on the face of the evidence of indebtedness ....” Henry v. Flagstar Bank, FSB, 2017 WL 11886155, at *4 (E.D.N.Y. Aug. 28, 2017) (internal quotation omitted); see also 15 U.S.C. § 1602(g). Like the original pleading, however, nothing in the Amended Complaint explains the factual basis for pursuing a claim under this statute. Plaintiff does not allege, nor would the facts appear to provide any basis for concluding, that he is a creditor within the meaning of this statute.
4. New York General Business Law Sections 349 and 350
Plaintiff next alleges that New School violated New York General Business Law sections 349 and 350.
Section 349 of the New York General Business Law declares unlawful “[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service.” N.Y. Gen. Bus. Law § 349(a). Section 350, meanwhile, prohibits “[f]alse advertising in the conduct of any
business, trade, or commerce or in the furnishing of any service.” Id. § 350. Thus, section 349 “involves unlawful deceptive acts and practices,” while section 350 “involves unlawful false advertising.”Smith v. Adidas Am., Inc., 691 F.Supp.3d 564, 575 (N.D.N.Y. 2023). The Amended Complaint again fails to adequately allege that Defendant violated either section. Plaintiff's Amended Complaint does not allege that Defendant engaged in any specific act or practice that was deceptive or misleading. Plaintiff's purely conclusory allegation that Defendant “engaged in deceptive Acts and unfair practices those that contained lies and deceit, false and misleading bait and switch advertising,” Am. Compl. at p. 2, is insufficient to permit the claim to proceed. Dunham v. Covidien, LP, 498 F.Supp.3d 549, 565 (S.D.N.Y. 2020); Bildstein v. MasterCardInt'lInc., 329 F.Supp.2d 410, 414 (S.D.N.Y. 2004).
Lastly, Plaintiff mentions Rule 901 of the New York CPLR, which lists the prerequisites to a class action. N.Y. C.P.L.R. 901 (McKinney 2024). However, Plaintiff has not stated a substantive state law claim in his complaint which precludes any basis for a class action.
6. Leave to Amend
“[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)). However, “a dismissal with prejudice is generally appropriate where a court puts a plaintiff on notice of a complaint's deficiencies and the plaintiff fails to correct those deficiencies after amendment.” Abu Dhabi Commercial Bank v. Morgan Stanley & Co. Inc., 2009 WL 3346674, at *2 (S.D.N.Y. Oct. 15, 2009) (citing cases). Here, Plaintiff was provided a prior opportunity to amend, but the Amended Complaint failed in any meaningful way to address the deficiencies identified in the Report-Recommendation. In such a circumstance, dismissal with prejudice is appropriate. Liqiang Wei v. Hoffmann, 2018 WL 4266129, at *1 (N.D.N.Y. Aug. 14, 2018), report and recommendation adopted, 2018 WL 4266039 (N.D.N.Y. Sept. 6, 2018) (denying second opportunity to amend when Amended Complaint “suffers from many of the same deficiencies as those identified” in dismissing the original complaint). The Court, therefore, recommends dismissal of the Amended Complaint.
III. CONCLUSION
For the reasons stated herein, it is hereby
RECOMMENDED, that Plaintiff's Complaint be DISMISSED; 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. Fi ll R CTV P 6(a)(1)(C)