UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
December 21, 2009
DONALD NATARELLI, PLAINTIFF,
NEW YORK STATE OFFICE OF VOCATIONAL AND EDUCATIONAL SERVICES FOR INDIVIDUALS WITH DISABILITIES, DEFENDANT.
The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge
MEMORANDUM DECISION and ORDER
Currently before the Court in this employment discrimination action, filed pro se by Donald Natarelli ("Plaintiff"), is a motion to dismiss for lack of subject-matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1), filed by the New York State Office of Vocational and Educational Services for Individuals with Disabilities ("Defendant"). (Dkt. No. 58.) For the reasons set forth below, Defendant's motion is granted.
I. RELEVANT BACKGROUND
A. Plaintiff's Claims
Construed with the utmost of special solicitude, Plaintiff's Complaint alleges that employees of New York State Office of Vocational and Educational Services for Individuals with Disabilities ("VESID") discriminated against him based on his age and disability in wrongfully closing his case after approximately a year of working with him to develop or reach an individualized plan for employment. (See generally Dkt. No. 1, ¶¶ 4, 5, 6 & Attachment.)
More specifically, Plaintiff alleges that, between approximately December 2006 and October 2007, four employees of the VESID Office in Utica, New York, committed the following acts: (1) Senior Counselor Patrick Sheppard discriminated against Plaintiff based on his disability (which consisted of cancer, depression, and a generalized anxiety disorder) during two meetings with him, one of which occurred on December 21, 2006; (2) Counselor Joe Zamlowski discriminated against Plaintiff based on his age by informing him, during a session with him at the Herkimer Working Solutions Career Center before June 16, 2007, that his age would be a factor (among many employment factors) considered by "building principals" in deciding whether to hire him for an entry level job while he was completing additional training on the graduate level to obtain a teaching position; (3) Senior Counselor Judy Petroski discriminated against Plaintiff based on his age on June 16, 2007, by learning of what Counselor Joe Zamlowski had told Plaintiff and responding, "We'll give you that"; and (4) Regional Coordinator John Tracy treated his "reports . . . [of] age discrimination . . . with depraved indifference." (Id. at ¶¶ 5, 6 & Attachment.)
Based on these factual allegations, Plaintiff asserts a violation of his rights under (1) the Americans with Disabilities Act ("ADA "), (2) the Age Discrimination in Employment Act ("ADEA "), and (3) 42 U.S.C. § 1983 (and the Due Process Clause of the Fourteenth Amendment). (Id. at ¶¶ 5, 6 & Attachment.)*fn1 As relief for these asserted violations, Plaintiff seeks equitable relief, compensatory damages, punitive damages, and declaratory relief. (Id. at ¶ 7.)
B. Defendant's Motion
Generally, in support of its motion to dismiss, Defendant argues that the Court lacks subject-matter jurisdiction over Plaintiff's claims against VESID because VESID, as an agency of the State of New York, is protected from liability by the Eleventh Amendment under the circumstances (in which New York has not waived its sovereign immunity by consenting to suit, nor has Congress authorized such suit in the exercise of its power to enforce the Fourteenth Amendment). (See generally Dkt. No. 58, Attach. 1, at 2-4 [Def.'s Memo. of Law].)
Plaintiff's response to Defendant's motion was originally due on October 13, 2009. (Text Notice filed Sept. 30, 2009.) On September 30, 2009, the Court sua sponte extended this response deadline until October 19, 2009. (Text Notice filed Sept. 30, 2009.) On October 7, 2009, Plaintiff requested a second extension of this deadline. (Dkt. No. 63.) On October 15, 2009, the Court granted that request, extending the deadline until November 2, 2009. (Text Order filed Oct. 15, 2009.) On October 30, 2009, Plaintiff requested a third extension of this deadline. (Dkt. No. 66.) On November 3, 2009, the Court granted that request, extending the deadline until November 13, 2009, and advising Plaintiff that the extension was "FINAL." (Text Order filed Nov. 3, 2009.) On November 12, 2009, Plaintiff requested a fourth extension of this deadline. (Dkt. No. 67.) On November 16, 2009, the Court denied that request as without cause. (Text Order filed Nov. 16, 2009.) Despite having been granted three extensions of time in which to do so, Plaintiff failed to submit a timely response to Defendant's motion to dismiss. Rather, on December 9, 2009, he submitted that response--twenty-six (26) days after the expiration of the deadline, which again had been extended three times. (Dkt. No. 68.)
In his response, Plaintiff does not show good cause for a nunc pro tunc fourth extension of the deadline as required by Fed. R. Civ. P. 16(b)(4).*fn2 While special solicitude may serve to loosen procedural rules,*fn3 it never completely relieves a pro se litigant of the duty to comply with procedural rules.*fn4 This is especially true where, as here, (1) the plaintiff knew of the procedural rule he violated (e.g., through the repeated Text Orders requiring a timely response from him), and (2) disregarding that rule would prejudice both the Court and Defendant. The Court notes that, when Plaintiff submitted his response, the Court had already researched and drafted a Decision and Order on Defendant's motion, and was merely finalizing it. The Court notes also that accepting Plaintiff's response for consideration would necessitate a reply by Defendant, which would further prolong this aging action. Finally, the Court notes that this action is so old (having been filed on October 24, 2007) in part due to repeated extensions of special solicitude to Plaintiff.*fn5
For these reasons, the Court declines to consider Plaintiff's untimely response, under the circumstances.
II. RELEVANT LEGAL STANDARD
Generally, "[t]he Eleventh Amendment . . . bars federal jurisdiction over a suit brought against a state." Nicolae v. NYS Office of Vocational and Educ. Servs. for Individuals with Disabilities, 04-CV-3512, 2005 WL 1311730, at *1 (E.D.N.Y. May 26, 2005) (citing College Sav. Bank v. Fla. Prepaid Post-secondary Educ. Expense Bd., 527 U.S. 666, 669-70 ), aff'd, No. 06-5693, 2007 WL 4462429 (2d. Cir. Dec. 18, 2007). "This bar extends not only to a state, but also to entities considered arms of the state." Nicolae, 2005 WL 1311730, at *1 (citing McGinty v. New York, 251 F.3d 84, 95 [2d Cir. 2001]). There are only two exceptions to Eleventh Amendment immunity: "(1) a State may waive its sovereign immunity by consenting to suit; and (2) Congress may authorize such a suit in the exercise of its power to enforce the Fourteenth Amendment--an Amendment enacted after the Eleventh Amendment and specifically designed to alter the federal-state balance." Id. (citing College Sav. Bank, 527 U.S. at 670).
A. Analysis of Plaintiff's Claims
As stated above in Part I.B. of this Decision and Order, Defendant seeks the dismissal of Plaintiff's claims because Defendant is protected from liability by the Eleventh Amendment, under the circumstances. After carefully considering this argument, the Court agrees for the reasons stated by Defendant in its motion papers. (See Dkt. No. 58.)
As an initial matter, the Court notes that, as explained above in Part I.B. of this Decision and Order, Plaintiff failed to respond (in a timely fashion) to Defendant's motion to dismiss despite having been granted three extensions of time in which to do so. As a result, Defendant's burden with regard to its motion is lightened such that, in order to succeed, it need only show its entitlement to the relief requested in its motion, which has appropriately been characterized as a "modest" burden. See N.D.N.Y. L.R. 7.1(b)(3) ("Where a properly filed motion is unopposed and the Court determines that the moving party has met its burden to demonstrate entitlement to the relief requested therein . . . ."); Rusyniak v. Gensini, 07-CV-0279, 2009 WL 3672105, at *1 n.1 (N.D.N.Y. Oct. 30, 2009) (Suddaby, J.) (collecting cases).*fn6 For the reasons stated by Defendant in its motion papers, the Court finds that Defendant has met this lightened burden. (See generally Dkt. Nos. 58.) In any event, the Court finds that Defendant's argument would survive even the heightened scrutiny appropriate on a contested motion.
Moreover, even if the Court were to consider his response, the Court would not be persuaded by it. In his response, Plaintiff argues that the Eleventh Amendment does not bar his claim arising under Title II of the ADA because (1) the Second Circuit found, in Garcia v. SUNY Health Servs. Ctr. of Brooklyn, 280 F.3d 98 (2d Cir. 2001), that the Eleventh Amendment does not bar a plaintiff's ADA Title II claim against a New York State entity to the extent that the plaintiff shows that the Title II violation was motivated by either discriminatory animus or ill will due to disability and (2) here, Plaintiff has alleged that the Title II violation was motivated by either discriminatory animus or ill will due to disability. (Dkt. No. 68.) The Court rejects this argument, under the circumstances.
As an initial matter, it is questionable whether the legal authority cited by Plaintiff applies to this action. In Garcia, the Court found that, because Title II of the ADA was enacted pursuant to Congress's authority under Section 5 of the Fourteenth Amendment, the Eleventh Amendment does not entirely bar a plaintiff's ADA Title II claim against the State University of New York (i.e., to the extent that the Title II violation was motivated by either discriminatory animus or ill will due to disability). Garcia, 280 F.3d at 108, 111-12, 114. From the Court's review of the relevant case law, it does not appear that the Second Circuit has ever extended this Eleventh Amendment analysis to a plaintiff's ADA Title II claim against VESID. Indeed, four years after issuing its decision in Garcia, the Court affirmed a district court decision that, inter alia, dismissed a plaintiff's ADA Title II claim against VESID for lack of subject-matter jurisdiction based on the Eleventh Amendment. Nicolae v. NYS Office of Vocational and Educ. Servs. for Individuals with Disabilities, 04-CV-3512, Memorandum and Order, at *3-4 (E.D.N.Y. filed June 1, 2005) (Block, J.) (dismissing the plaintiff's age-discrimination claim, pursuant to Title II of the ADA, against VESID for lack of subject-matter jurisdiction because VESID's sovereign immunity under the Eleventh Amendment had not been abrogated for purposes of ADA),*fn7 aff'd, No. 06-5693, 257 F. App'x 455, 456-57 (2d. Cir. Dec. 18, 2007) (summary order).*fn8 In so doing, the Second Circuit expressly stated, "VESID's sovereign immunity under the Eleventh Amendment has not been abrogated for purposes of [the plaintiff's age-discrimination claim under] the ADA . . . ."*fn9
One possible reason for this apparent evolution in Second Circuit case law could be a perception of an intervening change of controlling law. Specifically, in 2004, the Supreme Court arguably replaced Garcia's "discriminatory animus or ill will" with a test requiring that, for an ADA Title II claim to overcome the Eleventh Amendment immunity, the Title II claim must implicate a fundamental right under the Fourteenth Amendment (which does not include the right against age discrimination). Tennessee v. Lane, 541 U.S. 509, 533-34 (2004) ("Title II, as it applies to the class of cases implicating the fundamental right of access to the courts, constitutes a valid exercise of Congress' § 5 authority to enforce the guarantees of the Fourteenth Amendment.").*fn10
In any event, even if the Court were to assume that Garcia does apply to Title II age-discrimination claims against VESID, and even if the Court were to construe Plaintiff's Complaint with the utmost of special leniency, the Court would find that Plaintiff's Complaint, when construed with its attached hearing transcript (pursuant to Fed. R. Civ. P. 10[c]), does not allege facts plausibly suggesting that there was a Title II violation that was motivated by either discriminatory animus or ill will due to disability. (See Dkt. No. 1.) Title II of the ADA states as follows: "Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132.
Here, Plaintiff has failed to allege facts plausibly suggesting that any employee of VESID took any steps to exclude him from participation in the program, or deny him the benefits of its services. (Id.) Rather, Plaintiff alleges that he participated in the program, and received the benefits of its services, for nearly a year (i.e., between approximately December 2006 to October 2007). (Id.) Moreover, even if he has alleged facts plausibly suggesting such an exclusion or denial, he has not alleged facts plausibly suggesting that he was discriminated against because of his disability. (Id.) He alleges no facts plausibly suggesting that VESID employees made comments to him based on his cancer, depression, and a generalized anxiety disorder. (Id.) Rather, his allegations pertain to comments regarding his age. (Id.) More specifically, he alleges that two employees of VESID told him that his age would be a factor (among many employment factors) considered by "building principals" in deciding whether to hire him for an entry level job while he was completing additional training on the graduate level to obtain a teaching position. (Id.) Such a tempered observation is not discrimination because of age. Moreover, the Court notes that advanced age, in and of itself, is not a recognized "disability" for purposes of Title II of the ADA.*fn11
For these reasons, the Court finds that Plaintiff's Complaint must be dismissed.
B. Dismissal Without Prior Leave to Amend
Generally, before a district court dismisses a pro se civil rights complaint, the Court will first permit the plaintiff to amend his complaint. See Gomez v. USAA Fed. Savings Bank, 171 F.3d 794, 796 (2d Cir. 1999).*fn12 However, such an opportunity to amend is not required where the defects in the plaintiff's claims are substantive rather than merely formal, such that any amendment would be futile.
As the Second Circuit has explained, "[w]here it appears that granting leave to amend is unlikely to be productive, . . . it is not an abuse of discretion to deny leave to amend." Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993) (citations omitted), accord, Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *1 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.) ("[T]he court need not grant leave to amend where it appears that amendment would prove to be unproductive or futile.") (citation omitted); see also Foman v. Davis, 371 U.S. 178, 182 (1962) (denial not abuse of discretion where amendment would be futile); Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) ("The problem with Cuoco's causes of action is substantive; better pleading will not cure it. Repleading would thus be futile. Such a futile request to replead should be denied.") (citation omitted); Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991) ("Of course, where a plaintiff is unable to allege any fact sufficient to support its claim, a complaint should be dismissed with prejudice.") (citation omitted); Health-Chem Corp. v. Baker, 915 F.2d 805, 810 (2d Cir. 1990) ("[W]here . . . there is no merit in the proposed amendments, leave to amend should be denied.").*fn13
This rule applies even to pro se plaintiffs. See, e.g., Cuoco, 222 F.3d at 103; Brown, 1997 WL 599355 at *1. While the special leniency afforded to pro se civil rights litigants somewhat loosens the procedural rules governing the form of pleadings (as the Second Circuit has observed),*fn14 it does not completely relieve a pro se plaintiff of the duty to comply with the Federal Rules of Civil Procedure and Local Rules of Practice.*fn15 Rather, as both the Supreme Court and Second Circuit have repeatedly recognized, even pro se civil rights plaintiffs must follow such procedural rules.*fn16
Here, for the reasons discussed above in Part III.A. of this Decision and Order, the Court finds that the deficiencies with Plaintiff's rather-detailed claims against Defendant are substantive in nature, not merely formal. See Nicolae, 2005 WL 1311730, at *2 ("Whereas, ordinarily, the Court would allow a plaintiff an opportunity to amend his Complaint . . . , it need not afford that opportunity here where it is clear that the Court lacks jurisdiction.").
The Court notes that, even if Plaintiff were to amend his Complaint so as to name as Defendants the four employees of VESID described above in Part I.A. of this Decision and Order, those claims would also be barred by the Eleventh Amendment because they clearly would be claims against those employees in the official capacities, based on the factual allegations of Plaintiff's Complaint.
Finally, the Court notes that it granted Plaintiff a seven-month extension of the deadline by which to file a motion to amend his Complaint in accordance with the Federal Rules of Civil Procedure and Local Rules of Practice for this Court.*fn17 (Text Order filed Oct. 15, 2009.) However, Plaintiff has neglected to file such a motion, failing to file and serve (1) a Proposed Amended Complaint that was a complete pleading and that was intended to supersede his original Complaint in all respects, and (2) an affidavit setting forth specifically the proposed amendments. (Text Order filed Nov. 3, 2009.)
For each of these alternative reasons, the Court finds that it would be futile to provide Plaintiff with a further opportunity to amend his claims before dismissal; and the Court dismisses Plaintiff's Complaint without doing so.
ACCORDINGLY, it is
ORDERED that Defendant's motion to dismiss (Dkt. No. 58) is GRANTED; and it is further
ORDERED that Plaintiff's Complaint (Dkt. No. 1) is DISMISSED; and it is further
ORDERED that Plaintiff's # Letter motion requesting that mediation be resumed is hereby DENIED as moot.