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Wallace Richard Smith v. Kevin J. Barry

May 24, 2012

WALLACE RICHARD SMITH, PLAINTIFF,
v.
KEVIN J. BARRY, DISTRICT DIRECTOR, NY STATE OFFICES OF PARKS COMM., DEFENDANTS.



The opinion of the court was delivered by: Seybert, District Judge:

ORDER

Before the Court is the Complaint of pro se plaintiff Wallace Richard Smith ("Plaintiff") filed pursuant to the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-634 ("ADEA") and the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12112-12117 ("ADA") against the defendants Kevin J. Barry and the "NY State Office of Parks Comm." (together, the "Defendants"), accompanied by an application to proceed in forma pauperis. Upon review of the Plaintiff's declaration in support of his application, the Court finds that his financial status qualifies him to proceed without prepayment of the $350.00 filing fee. 28 U.S.C. § 1914(a). Accordingly, Plaintiff's request for permission to proceed in forma pauperis is GRANTED. However, for the reasons that follow, the Plaintiff's Complaint is sua sponte DISMISSED pursuant to 28 U.S.C. §§ 1915(e)(2)(b)(i)-(iii).

BACKGROUND

Plaintiff's Complaint, submitted on the Court's employment discrimination complaint form, is difficult to discern because Plaintiff has inserted handwritten notations throughout the Complaint that are largely unintelligible. For example, on the top of the first page of the Complaint, to the right of the caption, Plaintiff has written:

I have a disability to my rt. leg. I have passed the lifeguard rehire test. I provided medical proof I was capable of working. The park has accomdations [sic], 2 pool[s], Zacks Bay. I have worked as a pool lifeguard here in IL. This has been a continuous corrupt act and conspiracy (RICO). I want the Court to rule I can take the lifeguard test and not the rehire and back pay.

Compl. at page 1. Plaintiff has checked the boxes on the Complaint form to allege that his claims arise under the ADEA and the ADA.*fn1

Id. Plaintiff has also checked the boxes on the Complaint form to allege that he complains of the following discriminatory conduct: "failure to hire, termination of my employment, failure to accommodate my disability, unequal terms and conditions of my employment, and other acts - allowing people who are not authorized to view my personal information!" Plaintiff claims that these alleged discriminatory acts occurred on or about May 28, 2003. Plaintiff's statement of claim, is alleged in its entirety as follows:

In 1983 I passed the JB/RM Rehire test. I was awarded back my Boatswain position back and RM 3 Supervisor test without any problem. [On] May 29, 2004 I provided medical proff [sic] I could work and passing [sic] the exam. Many able body failed. In addittion [sic] I observed Joe Scalice punching in the time clock for Tim Hirten. Hirten was not yet back from playing Pro Basketball in Europ [sic]. He was LT at Zachs Back. Others witnessed the behavior. I know the names. I beat many able body men who failed. I cannot work. I demand my position back if I pass the old rehire test. I have been requesting one since 1983. I pass & do not get hired. I went to see Dr. Heckerel MD.

Compl. at ¶ 8. Plaintiff alleges that he filed an administrative charge of discrimination with the New York State Division of Human Rights and with the Equal Employment Opportunity Commission ("EEOC") in May 1994. Compl. at ¶ 9. Annexed to the Complaint is a copy of the EEOC's Dismissal and Notice of Rights, dated January 26, 2012, signed by Kevin J. Berry, District Director.

DISCUSSION I. In Forma Pauperis

Having reviewed Plaintiff's declarations in support of his applications to proceed in forma pauperis, the Court finds that he is qualified to commence this action without prepayment of the filing fees. See 28 U.S.C. § 1915(a)(1). Accordingly, Plaintiff's request for permission to proceed in forma pauperis is GRANTED.

II. The Court's Screening

A district court is required to dismiss an in forma pauperis complaint if the action is frivolous or malicious; fails to state a claim on which relief may be granted; or seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2)(B)(i-iii); Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). The Court is required to dismiss the action as soon as it makes such a determination. 28 U.S.C. § 1915A(a).

It is axiomatic that pro se complaints are held to less stringent standards than pleadings drafted by attorneys and the Court is required to read the plaintiff's pro se complaint liberally, Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 167 L. Ed. 2d 1081 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976)); Chavis v. Chappius, 618 F.3d 162 (2d Cir. 2010), and to construe them "'to raise the strongest arguments that [they] suggest[].'" Chavis, 618 F.3d at 170 (quoting Harris v. City of New York, 607 F.3d 18, 24 (2d Cir. 2010)). Moreover, at the pleadings stage of the proceeding, the Court must assume the truth of "all well-pleaded, nonconclusory factual allegations" in the complaint. Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 124 (2d Cir. 2010) ...


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