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DeMarco v. City of New York

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK


August 8, 2008

NICOLA ANTONIO DEMARCO, PRO SE, PLAINTIFF,
v.
THE CITY OF NEW YORK; THE CITY OF NEW YORK DEPARTMENT OF EDUCATION; NEW YORK CITY MAYOR MICHAEL BLOOMBERG; NEW YORK CITY SCHOOL'S CHANCELLOR JOEL KLEIN; RENEE DAVID; THERESA EUROPE; PHILIP COMPOSITO; NANCY RYAN; MICHAEL BEST; MICHAEL CARDOZO; NEW YORK CITY DEPUTY MAYOR DENNIS WALCOTT; NEW YORK STATE GOVERNOR DAVID PATERSON; ELEANOR ELOVICH GLANSTEIN, DEFENDANTS.

The opinion of the court was delivered by: Dora L. Irizarry United States District Judge

SUMMARY ORDER

DORA L IRIZARRY, United States District Judge

On July 25, 2008, pro se plaintiff Nicola Antonio DeMarco paid the requisite filing fee and filed the instant complaint along with a preliminary injunction and a temporary restraining order. By an order dated July 25, 2007, this Court denied the motion for a preliminary injunction and a temporary restraining order, finding plaintiff did not make the necessary showing of immediate or irreparable harm. Upon further review of plaintiff's complaint, plaintiff is hereby directed to file an amended complaint within thirty (30) days of the date of this order, as detailed below.

BACKGROUND

Plaintiff, an employee of the New York City Board of Education, was suspended from his job in accordance with Education Law section 3020-a. See Complaint at Exhibit A. Although unclear, it appears that there is an ongoing disciplinary action against plaintiff. On July 3, 2008, plaintiff asked for an adjournment of all proceedings "until his adoption of a child is complete within the permitted time allowed under the Family and Medical Leave Act." Compl. ¶ 5. Plaintiff further alleges that defendants have failed to address his leave request.

DISCUSSION

Plaintiff names thirteen defendants in the caption of the complaint; however, plaintiff fails to make any factual allegations against these defendants. Moreover, it is abundantly clear that some of the named defendants cannot possibly have any personal involvement with the few facts alleged. "It is well settled in this Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages . . . ." Johnson v. Newburgh Enlarged School Dist., 239 F.3d 246, 254 (2d Cir. 2001). Personal involvement of supervisory officials requires that they either (1) "participated directly in the alleged constitutional violation"; (2) "failed to remedy the wrong" after being informed of the violation through either a report or appeal; (3) created or continued "a policy or custom under which unconstitutional practices occurred"; (4) were "grossly negligent in supervising subordinates who committed" the unconstitutional acts; or (5) exhibited "deliberate indifference" to plaintiff's rights by failing to act on information that constitutional violations were occurring. Id. (internal quotation marks omitted).

CONCLUSION

The Court cannot allow plaintiff's claims to go forward as defendants will not be able to respond meaningfully to the instant complaint. In light of this Court's duty to liberally construe pro se complaints, plaintiff is given 30 days leave to file an amended complaint. Cruz v. Gomez, 202 F.3d 593 (2d Cir. 2000). Plaintiff is directed that his amended complaint must comply with Rule 8(a) of the Federal Rules of Civil Procedure. Rule 8(a)(2) requires that a complaint contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Pleadings are to give "fair notice" of a claim and "the grounds upon which it rests" to enable the opposing party to answer and prepare for trial, and to identify the nature of the case. Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 346 (2005) (citation omitted); Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 512 (2002); see also Twombly v. Bell, 425 F.3d 99, 106 (2d Cir. 2005) (quoting Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995)).

Should plaintiff file an amended complaint, he must set forth the legal basis and factual allegations to support his claims against each defendant, and the relief he is seeking with respect thereto. The allegations must be short, plain, and concise. In addition, plaintiff is directed to name as proper defendants those individuals who have some personal involvement in the actions he alleges in the amended complaint. The amended complaint must be captioned as an "Amended Complaint" and bear the same docket number as this Order. For the convenience of the pro se Plaintiff, instructions on how to file an Amended Complaint are attached to this Order. No summons shall issue at this time and all further proceedings shall be stayed for 30 days. The Court certifies pursuant to 28 U.S.C. § 1915 (a)(3) that any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is denied for purposes of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

SO ORDERED.

20080808

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