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Morris v. City of New York

March 1, 2007

DAVID MORRIS, PLAINTIFF,
v.
CITY OF NEW YORK, ET. AL., DEFENDANTS.



The opinion of the court was delivered by: P. Kevin Castel, U.S.D.J.

MEMORANDUM AND ORDER

Plaintiff David Morris, proceeding pro se, brings this action. On its face, plaintiff's handwritten Amended Complaint does not make reference to any statutory or constitutional basis for his claims. Heeding the command that pro se pleadings are to be given a generous reading and a pro se litigant special solicitude, I construe the Amended Complaint as alleging employment discrimination based on race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII"), and based on age in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 et seq. ("ADEA"). The defendants are the City of New York, nine individual defendants and a John Doe. Three of the individual defendants are employees of not-for-profit Wildcat Service Corporation, ("Wildcat"): Mr. Maria Cacaville, Mr. Garcia and Mr. Joseph Otero, (collectively, the "Wildcat Defendants"). Two are employees of Rider Job Center, ("Rider"), Mr. Stephen Rose and Ms. Cummings, (collectively, the "Rider Defendants"). Mr. Glenn Nicktenhauser, Mr. Leona James and "John Doe Investigator" are employed by the New York State Department of Human Rights, (collectively the "NYSDHR Defendants"). Robyn McNib is an employee of the Human Resources Administration, Office of Legal Affairs, Employment Law Division of New York City and Ms. Dorothy Crump is employed by the United States Equal Employment Opportunity Commission. Plaintiff alleges that defendants discriminated against him on the basis of his race and age.

Defendant Crump, the NYSDHR Defendants and the Wildcat Defendants now move to dismiss the Amended Complaint (sometimes referred to as the "AC"). The NYSDHR Defendants and Crump move to dismiss under Rule 12(b)(1), Fed. R. Civ. P., asserting that this court lacks subject matter jurisdiction over plaintiff's claims against them by reason of the Eleventh Amendment and sovereign immunity. Further, they contend that there is no right of action against either the EEOC, or its officials, or the NYSDHR, or its officials, for failure to properly handle a complaint. Additionally, the Wildcat Defendants contend that plaintiff's allegations against them fail to state a claim and should be dismissed pursuant to Rule 12(b)(6), Fed. R. Civ. P. Plaintiff has been served with the Notice to Pro Se Litigants Opposing a Motion to Dismiss, as required by Local Rule 12.1. For the reasons set forth below, the motions are granted and the Amended Complaint is dismissed as against Crump, the NYSDHR Defendants and Wildcat Defendants without prejudice. To date, no motion to dismiss has been filed on behalf of the Rider defendants, McNib or the City of New York.

I. BACKGROUND

A. Plaintiff's Original Complaint and Subsequent Proceedings

The Complaint in this action was received by the Court's Pro Se Office on April 8, 2005. In the Complaint, a form complaint supplied by this district's pro se office, plaintiff identifies himself as a black male. He alleges that, beginning in 2003, he was a participant in the Employment Services Program ("ESP") run by Wildcat. Wildcat is a not-for-profit organization which provides vocational and job placement services for those who have been convicted of crimes, including parolees and work release participants. On his original Complaint, Plaintiff checked the box indicating that he wished to pursue claims under Title VII and the ADEA against the named individual defendants, the same parties named in the Amended Complaint. He also stated that the only relief sought was that he be granted "a Sodium Pentothal third degree regarding all allegations and contentions." (Compl. "Statement of Facts") Wildcat is not named as a defendant.

On August 18, 2005, then Chief Judge Michael B. Mukasey issued an Order sua sponte dismissing Morris's Complaint and directing plaintiff to file an Amended Complaint within sixty days from issuance of the Order. (Docket No. 2) Chief Judge Mukasey determined that plaintiff's Complaint failed to comply with the requirements of Rule 8, Fed. R. Civ. P., even under the notice pleading standard. See Swikiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). Further, Chief Judge Mukasey concluded that plaintiff's allegations failed to state a claim under either Title VII or the ADEA. He directed plaintiff to file an Amended Complaint which named only his employer and informed plaintiff that "if plaintiff only seeks to allege Title VII and ADEA claims in this action, the complaint as to the individual defendants Cacaville, Garcia, Otero, Rose, Cummings, Nicktenhauser, Janes, John Doe, McNib and Crump must be dismissed." (Id. at 5) Plaintiff was directed to include in the Amended Complaint "when and where he worked, what his positions were, why he left each position and the circumstances surrounding each event." Morris was also instructed to include his own race, age and sex, as well as that of other co-workers and supervisors. (Id.)

On October 13, 2005, plaintiff filed an Amended Complaint. On November 3, 2005, the case was assigned to me.

In addition to the instant case, plaintiff has sought to file eight other civil cases in this district relating either to plaintiff's efforts to obtain employment or to state criminal proceedings.*fn1 In an Order dated February 10, 2006, Chief Judge Mukasey required plaintiff to show cause by affirmation why there should not be an injunction entered against him, barring Morris from filing future actions in the Southern District of New York without first receiving permission from the Court. Morris v. City of New York, 06 Civ. 1075 (MBM). No affirmation was filed by plaintiff and on April 3, 2006, Chief Judge Mukasey issued an Order enjoining plaintiff from filing further actions in this Court without first obtaining the permission of Court. (Yalen Dec. Exh. 1 at 6) In his Order enjoining plaintiff from future filings, Chief Judge Mukasey noted that plaintiff is no stranger to this Court, having had at least eleven cases filed in this district dismissed for either lack of subject matter jurisdiction, failure to state a claim or from suing a party immune to suit. (Id. at 4-5) Although distinct from this case, many of those cases involved claims against the defendants named in this action.

B. The Amended Complaint

Plaintiff's eleven-page handwritten Amended Complaint appears to assert substantively the same allegations contained in the original Complaint. The first section of the Amended Complaint, entitled "Facts", is identical to that contained in the original Complaint and states:

Between February 1st and March 15th, 2004, Petitioner was called in the Office of Mr. Garcia, a Staff Member of Wildcat Service Corporation and informed in front of my supervisor, Mr. Joseph Otero, that should I continue with this complaint against CVS Pharmacy, I will be transferred from Wildcat on Lafayette Ave. And forced to go through all the aggravation of everything, I stated I was interest in, meaning a position at the Parks Department.

I wrote to Washington D.C. regarding Mr. Garcia's contentions. Subsequently, thereafter I was transferred to American Works. At that point I spoke with Mr. Rose, Supervisor Ryder Welfare Center, Bronx, NY; he informed me that I was being transferred from Wildcat because of the complaint against CVS. I argued the case and was transferred back to Wildcat. However, I'm not in the position that opened up.

Note: Ms. Maria Cacaville, who is the director of this Lafayette office of Wildcat Service Corporation, asked me for a settlement. At which point, I indicated that I was concerned about a settlement ...


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