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 John 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. 15.) For the reasons set forth below, Defendant's motion is granted.
Construed with the utmost of special solicitude, Plaintiff's Complaint alleges that an employee 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 precluding him from obtaining "educational services in the MVCC 2 Oneonta program." (See generally Dkt. No. 1, ¶ 6.)
More specifically, Plaintiff alleges that, on a date uncertain, in working with him to develop or reach an individualized plan for employment, Joe Zamlowski, a VESID counselor, stated to him, inter alia, as follows: (1) "it was 'atypical for [Plaintiff] to desire to become a teacher at [his] age"; (2) "just because [he] desire[s] to become a teacher, people don't always get what they want"; (3) "[it was] 'atypical' for two brothers, coming from the same household, to want to be teachers at this age"; and (4) he (Joe Zamlowski) had "nosupport" from Victoria Laucello in obtaining for Plaintiff "educational services in the MVCC 2 program." (Id.) Plaintiff alleges that these comments evidence the intent of Mr. Zamlowski and Ms. Laucello to discriminate against Plaintiff by precluding him from obtaining educational services. (Id.)
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 ¶¶ 1, 6.)*fn1 As relief for these asserted violations, Plaintiff seeks equitable relief, compensatory damages, punitive damages, and declaratory relief. (Id. at ¶ 7.)
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. 15, Attach. 1, at 4-6 [Def.'s Memo. of Law].)
Plaintiff's response was originally due on October 13, 2009. (Dkt. No. 15.) On September 30, 2009, the Court sua sponte extended that deadline to October 19, 2009. (Text Order filed Sept. 30, 2009.) On November 2, 2009, Plaintiff requested a second extension of that deadline. (Dkt. No. 20.) 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's brother, a non-party to this action (and a non-attorney), requested a third extension of the deadline, on behalf of Plaintiff. (Dkt. No. 21.) On November 16, 2009, the Court denied that request as procedurally improper and as without cause. (Text Order filed Nov. 16, 2009.) Despite having been granted two extensions of time in which to do so, Plaintiff failed to timely respond 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. 22.)
In his response, Plaintiff does not show good cause for a nunc pro tunc third 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.
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). "In regard to the first exception, New York has not waived ...