UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
March 2, 2012
CLARENCE DELANEY, JR., PLAINTIFF,
MONTGOMERY TRANSITIONAL SERVICES, INC.; KIMMBERLI FLORY; JANE DOE; NEW YORK STATE OFFICE OF MENTAL HEALTH; JANINE DYKEMAN, EXECUTIVE DIRECTOR OF MONTGOMERY TRANSITIONAL SERVICES, INC.; LORI LAVENIA, APARTMENT COUNSELOR; SUE HERBA, ENTITLEMENT SPECIALIST, DEFENDANTS.
The opinion of the court was delivered by: Randolph F. Treece United States Magistrate Judge
REPORT-RECOMMENDATION and ORDER
The Clerk has sent to the Court for review Plaintiff Clarence Delaney, Jr.'s Second Amended Complaint (Dkt. No. 22), filed pursuant to a Decision and Order, dated January 10, 2012, of the Honorable Gary L. Sharpe, Chief United States District Judge, adopting this Court's Report-Recommendation and Order (Dkt. No. 15).
Plaintiff has been granted permission to proceed in forma pauperis. See Dkt. No. 13, Rep.-Rec. and Order, dated Nov. 17, 2011, at p. 1. Section 1915(e) of Title 28 of the United States Code directs that, when a plaintiff seeks to proceed in forma pauperis, "the court shall dismiss the case at any time if the court determines that . . . the action or appeal (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B). Thus, it is the responsibility of the court to determine that a plaintiff may properly maintain his complaint before permitting him to proceed further with his action.
In his Complaint and his subsequent first Amended Complaint, Plaintiff attempted to bring his action pursuant to 42 U.S.C. § 1983, which "establishes a cause of action for 'the deprivation of any rights, privileges, or immunities secured by the Constitution and laws' of the United States." German v. Fed. Home Loan Mortg. Corp., 885 F. Supp. 537, 573 (S.D.N.Y. 1995) (quoting Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) & 42 U.S.C. § 1983)); see also Myers v. Wollowitz, 1995 WL 236245, at *2 (N.D.N.Y. Apr. 10, 1995) (stating that "§ 1983 is the vehicle by which individuals may seek redress for alleged violations of their constitutional rights"). Plaintiff's allegations, read liberally, consisted of state law claims of defamation, negligence, racial harassment and/or discrimination, and lost or stolen property. Because he failed to identify a cognizable constitutional or federal right that was allegedly violated and failed to allege that any Defendant acted under color of state law, Plaintiff's Amended Complaint was dismissed with leave to amend. See Dkt. No. 15, Order (adopting Dkt. No. 13, Rep.-Rec.).*fn1
By his Second Amendment Complaint, Plaintiff now brings his action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Dkt. No. 22, Second Am. Compl., at ¶ 8. He also has not included Lori Lavenia in his Second Amendment Complaint, either in the caption nor the facts and claims. Otherwise, Plaintiff's factual allegations remain virtually identical in substance to the claims in his Amended Complaint. Compare Dkt. No. 11 with Dkt. No. 22.
Title VII of the Civil Rights Act of 1964 "prohibits employment discrimination 'because of . . . race, color, religion, sex, or national origin' and states that such discrimination is established when one of those factors 'was a motivating factor for any employment practice, even though other factors also motivated the practice.'" Staub v. Proctor Hosp., ___ U.S. ___, 131 S.Ct. 1186, 1191
(2011) (citing 42 U.S.C. §§ 2000e-2(a), (m)) (emphasis added); see also Arbaugh v. Y&H Corp., 546 U.S. 500, 503-06 (2006) (discussing Title VII's definitions of "employer," "employee," and the "employee-numerosity requirement").
Here, Plaintiff claims that he was housed and provided with treatment by Defendant Montgomery Transitional Services, Inc., "a halfway house for coed individual men and women adults who suffered from mental illness and substance [abuse]." Second Am. Compl. at "Facts" on p. 3. As in his previous pleadings, he alleges that while he was staying at such a residence, he was subjected to abuse and unequal treatment from the Defendants, employees of Montgomery Transitional Services, Inc., because of his African-American heritage. However, Plaintiff does not claim, and we can imagine nothing indicating, an employer-employee relationship between himself and the Defendants. Because Title VII of the Civil Rights Act lays for actions concerning employers and their employees, Plaintiff's claims cannot be pursued under this Act.*fn2 Further, for the same reasons as stated above, which are narrated with greater detail in our previous Report-Recommendation and Order, Plaintiff's action, read liberally, fails to state a facially valid claim under § 1983 and offers no other basis for this Court's jurisdiction.
Therefore, because Delaney has failed to establish a basis for the Court's subject matter jurisdiction, dismissal of Delaney's claims is mandated. United States v. Griffin, 303 U.S. 226, 229 (1938); FED. R. CIV. P. 12(h)(3) ("If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action."). Accordingly, we recommend that Plaintiff's action be dismissed. This Court recognizes the Second Circuit's preference to provide pro se plaintiffs
with leave to amend their pleadings prior to dismissal; because Delaney has already been afforded two opportunities to amend his Complaint, and in light of the discussion herein, providing Plaintiff another opportunity to amend would be futile.
For the reasons stated herein, it is hereby
RECOMMENDED, that the Second Amended Complaint (Dkt. No. 22) be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) & (iii) for failure to state a claim upon which relief may be granted and for failure to establish subject matter jurisdiction; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Report-Recommendation and Order upon the parties to this action.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); see also 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72 & 6(a).