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TOUT v. ERIE COMMUNITY COLLEGE

December 6, 1995

MICHELLE TOUT, Plaintiff,
v.
ERIE COMMUNITY COLLEGE, DENNIS DIGIACOMO, and ROSE MOORE, Defendants.



The opinion of the court was delivered by: HECKMAN

 CAROL E. HECKMAN

 UNITED STATES MAGISTRATE JUDGE

 DECISION AND ORDER

 The parties have consented to have the undersigned conduct any and all further proceedings in this case, including the entry of final judgment, in accordance with 28 U.S.C. § 636(c). Pending for decision is defendants' motion to dismiss the complaint for failure to state a claim under Rule 12(b)(6), and plaintiff's motion for appointment of counsel. For the following reasons, both motions are denied.

 BACKGROUND

 Plaintiff, pro se, filed a Title VII complaint with this court on January 27, 1995. It alleged that Erie Community College ("ECC"), Dennis DiGiacomo, Dean of Students/Supervisor, and Rose Moore, Chairman of the Department of Counseling and Admissions, discriminated against her based on her race, color, and sex. Administrative charges were filed with the New York State Human Rights Commission on January 7, 1994 (Item 6, Ex. D). The administrative charges named only ECC as the respondent. However, the body of the complaint mentions DiGiacomo and Moore and their alleged discriminatory acts.

 Defendants move to dismiss the complaint because (1) no notice of claim was served upon the municipality, (2) the individual defendants were never named as respondents at the administrative level, and (3) the appropriate parties are not named as defendants. Each contention will be addressed in turn.

 DISCUSSION

 I. Motion to Dismiss

 In determining a motion to dismiss under Rule 12(b)(6), the court must presume all factual allegations in the complaint to be true and make all reasonable inferences in favor of the non-moving party. Miree v. DeKalb County, GA., 433 U.S. 25, 27 n.2, 53 L. Ed. 2d 557, 97 S. Ct. 2490 (1977). However, legal conclusions, deductions or opinions couched as factual allegations are not given a presumption of truthfulness. Albany Welfare Rights Organization Day Care Center, Inc. v. Schreck, 463 F.2d 620 (2d Cir. 1972), cert. denied, 410 U.S. 944, 35 L. Ed. 2d 611, 93 S. Ct. 1393 (1973). The complaint should not be dismissed for failure to state a claim unless it appears "beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief." Yusuf v. Vassar College, 35 F.3d 709, 713 (2d Cir. 1994)(quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)).

 Further, a pro se complaint must be read liberally and should not be dismissed without granting leave to amend "when a liberal reading of the complaint gives any indication that a valid claim might be stated." Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991).

 A. Failure to Serve Notice of Claim

 Defendants contend that plaintiff's failure to serve a notice of claim under N.Y. General Municipal Law §§ 50-e and 50-i bar her from bringing the present action. The statutes require that a timely notice of claim be filed before an action can be commenced for a claim against a county based on misfeasance, omission of duty, negligence or wrongful act on the part of the county, its officers, employees or agents. Finley v. Giacobbe, 827 F. Supp. 215, 218 (S.D.N.Y. 1993). The purpose of the notice of claim provision is to put the municipality on notice of the nature of the claim against ...


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