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Calvin Sherman, Pro Se v. Ms. Laurie Harris

September 24, 2012


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


Calvin Sherman ("plaintiff") commenced this pro se action against defendants Laurie Harris ("Harris"), Mark Weinstein ("Weinstein"), Joseph Tevington ("Tevington"), Rebecca Robinson-Lawrence ("Robinson-Lawrence"), James Samuels ("Samuels"), and Judith Schneider ("Schneider") alleging racial discrimination and retaliation under 42 U.S.C. §§ 1983, 1985(3), 1986 ("Sections 1983, 1985, 1986"), and Title VI of the Civil Rights Act of 1964 ("Title VI"). (See Compl. at 3, 11.) Plaintiff principally claims that defendants, as Vocational and Educational Services for Individuals with Disabilities ("VESID") staff, racially discriminated against him when they conditioned his VESID funding on plaintiff sitting for a psychiatric examination. Additionally, the Court construes the complaint to assert discrimination claims under Title IX, 20 U.S.C. § 1681 et seq. ("Title IX"), Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 ("Section 504"), Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12131 ("Title II ADA"), Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), and the Individual with Disabilities Education Act, 20 U.S.C. § 1400 et seq. ("IDEA"). (Id. at 3, 9-11, 35.)Finally, plaintiff asserts a due process claim under Section 1983 and a breach of contract claim under state law. (Id. at 7-9.)

Pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, defendants Weinstein, Tevington, Robinson-Lawrence, and Mr. Samuels ("moving defendants") move to dismiss the claims against them in the complaint. (See Decl. in Supp. of Mot. to Dismiss ("Defs.' Decl."), at 2.) Pursuant to Rule 55(b) of the Federal Rules of Civil Procedure, plaintiff moves for an entry of default judgment as to defendants Harris and Schneider. (See Doc. Entry Nos. 24, 25.) For the reasons set forth below, the motion to dismiss is granted and the motion for default judgment is denied.


New York Vocational and Educational Services for Individuals with Disabilities ("VESID") is a state agency funded by the federal government under the Rehabilitation Act. It is a subdivision of the New York State Department of Education and administers New York's vocational rehabilitation programs to provide counseling and other services necessary to enable disabled individuals to "prepare for and engage in gainful employment." 29 U.S.C. § 720(a)(2)(B). Plaintiff is a disabled African-American man in his early 60's. (Dec. 17, 2010 VESID Hearing Transcript, Compl., Ex. A ("Tr.") 67.) Plaintiff previously had attended Medgar Evers College in 2007 with VESID funding as part of a vocational program; however plaintiff had academic difficulties and his VESID case was closed in August 2007. (Tr. 36; see also Ex. I.) On February 4, 2009, plaintiff reapplied for services with the VESID in order to pursue an Individualized Plan of Employment ("IPE"), with a work goal of opening a take-out restaurant. (Tr. 36-38.) Plaintiff met with the vocational rehabilitation counselor ("VRC") assigned to him, James Samuels, on February 4, 2009 and again on May 21, 2009 and was discouraged from pursuing the work goal of opening a restaurant. (Id. at 37-38.) Plaintiff claimed this discouragement was the result of jealousy on the part of Samuels, whom plaintiff alleged was an ex-inmate. (Compl., 10.)

On May 29, 2009, plaintiff met with VRC Supervisor Joseph Tevington to request a new VRC. (Tr. 38.) Tevington set up a new IPE for plaintiff for the fall 2009 semester, which included the work goal of teacher aide, and assigned plaintiff VRC Rebecca Robinson-Lawrence. Under this IPE, VESID would provide financial assistance for books and carfare as long as plaintiff was not on academic probation. (Compl. 9; see also Tr. 38-39, 40.) Plaintiff claimed Robinson-Lawrence was negative, "very nasty" and disrespectful to him over the phone, and alleged her behavior was part of a "campaign of harassment" against him led by Tevinton and Samuels. (Compl. 25.) After learning of plaintiff's prior criminal conviction, which plaintiff had withheld, Robinson-Lawrence determined the work goal of teacher aide may not be appropriate, because it may be difficult to obtain employment. (Tr. at 46, 89; 178.) Plaintiff refused to work with Robinson-Lawrence during the fall 2009 semester and again requested a different VRC. (Tr. 40-41.) Tevington met with him and Pastor Ken Bogan, who was associated with the Crown Heights Mediation Center, on January 21, 2010 to discuss plaintiff's spring 2010 IPE. (Tr. 41.) Plaintiff previously had been put on academic probation because his grade point average ("GPA") had fallen under the required 2.00. (Jan. 14, 2010 Letter from Mr. Phifer to Tevington,Compl., Exh. F.) Plaintiff's IPE work goal was changed to social work aide, and though he had not yet been taken off academic probation, Tevington noted that sufficient progress was made for VESID to offer funding for books and carfare for the spring 2010 term. (Id. at 41-45.) Plaintiff's GPA at the time had risen to a 3.7. (Compl. 13.) VESID provided plaintiff with assistance for the spring 2010 semester. (Tr. 43, 48.)

During February of 2010, in a series of emails sent to Tevington, plaintiff raised the issue of funding for a $323.47 spring tuition balance, which not been authorized by VESID under his current IPE. Tevington and Robinson-Lawrence believed plaintiff had requested only funding for carfare and books, and he had never asked for tuition. (Tr. 44, 47-48, 96.) However, plaintiff saw this omission as purposeful, blamed Robinson-Lawrence and her "negative and discriminatory behavior" for omitting tuition from his IPE, and stated that, if Tevington ignored his emails, he was also responsible for her discriminatory behavior. (Compl. 12; Tr. 47-48.) Tevington authorized a retroactive tuition payment for the spring 2010 semester on July 26, 2010. (Tr. 53; see also Decision and Order at 6-7, Defendants Declaration of Charles E. Enloe in Support of Motion to Dismiss ("Defs.' Decl."), Ex. A.)

As proof that the omission of tuition funding was purposeful, plaintiff points to a May 14, 2010 letter from Medgar Evers College addressed to Robinson-Lawrence concerning the tuition amount and an April 28, 2010 letter from Medgar Evers College addressed to Ms. Meltz, an employee at VESID, regarding the $323.35 balance that was past due. (Compl. 12; see also Compl., Exs. D and E.) From May to June of 2010, plaintiff and Tevington exchanged a series of emails related to college financial aid forms and basic VESID requirements. (Id. at 49-51.) Plaintiff's confusion with the forms and requirements and his behavior towards VESID staff, including accusing Robinson-Lawrence of spitefully orchestrating what were actually standard requirements and calling certain employees "racist," raised concerns for Tevington and VESID. (Id. at 51-52, 137.)

On July 14, 2010, Tevington, Weinstein, and Robinson-Lawrence met with plaintiff. (Compl. 7-8; see also Tr. 57-60.) Prior to this meeting, VESID prepared a new IPE that continued funding for tuition, books, and fees, but required plaintiff to sit for a psychiatric assessment, "to get a better idea as to what services [plaintiff] might need and what he would be able to handle regarding stress and other kinds of tolerances." (Tr. 137-39; see also id. at 101-02.) Believing that the psychiatric assessment requirement was racially induced, plaintiff refused and walked out of the meeting. (Compl. 6-8; see also Tr. 128.)

Plaintiff requested a hearing under Rehabilitation Act of 1973, 29 U.S.C. 701 et seq. Pursuant to plaintiff's request, on December 17, 2010, Judith Schneider, the VESID Impartial Hearing Officer ("IHO"), conducted a hearing to determine:

Did VESID act appropriately and lawfully under federal and state law and VESID's written policies with regard to the funding of certain college related expenses by, among other things, conditioning continued funding upon Petitioner's agreement to undergo a psychiatric evaluation or were its actions a consequence of racial bias by staff members or retaliation for claims of racism by Petitioner. (Decision and Order at 3, Defs.' Decl., Ex. A.) Plaintiff and defendants Tevington, Weinstein, Robinson-Lawrence, and Harris were present and testified, with Harris representing VESID. (Id. at 3, 9.) The IHO outlined the hearing's procedures, especially concerning objections; however throughout the hearing, plaintiff interrupted defendants' testimony and made accusatory remarks. (id. at 7-11, 23-25); (see, e.g., id. at 50-51, 60, 89-94, 117-19; 138-139.) As he does in the complaint, plaintiff repeatedly accused Samuels, Robinson-Lawrence, Tevinton, and Weinstein of being engaged in a conspiracy of racial animus towards him and a "cover-up," but provided no specific instances or occasions of discrimination. (Compl. 20-21.) At the VESID hearing, Weinstein explained the purpose of the psychological assessment to plaintiff,

It's really all geared for getting you to work and prepared to work, but [] we need to get the background information on your stress tolerances, your ability to handle different situations, what to expect, and the way you were behaving and acting was giving us concern that you were not really showing the kind of adjustment to move towards employment. It was not working. (Id at 148-49.) Further, continued funding would not be contingent on the results of the assessment. (Id. at 128 ("Mr. Sherman was asked to agree to go for a psychiatric assessment while he attended school. We were not making anything contingent on anything, we just wanted to have that done.") Plaintiff explained his aversion to the psychiatric assessment was because African-Americans have been victimized in the past through medical and psychological evaluations, and the distortion of the results. (Tr. 168, 179-80.)

On April 12, 2011, the IHO dismissed the matter, concluding that VESID's actions were not based on racism or retaliation, but rather VESID had a reasonable and lawful basis for setting a psychiatric evaluation as a condition for continued funding, especially in light of plaintiff's interactions with VESID staff, his confusion regarding standard college aid forms, and his failure to disclose his prior criminal record. (Decision and Order, at 20, Defs.' Decl., Ex. A.)

Rather than seek review of the IHO decision pursuant to Section 722 of the Rehabilitation Act, plaintiff filed this action on September 9, 2011 alleging various civil rights violations and seeking $4,500,000 in compensatory damages and $4,500,000 in punitive damages. (See Compl. 4.) Plaintiff's complaint is a litany of accusatory and conclusory statements that defendants are racist or "Uncle Toms" who are part of a conspiracy to prevent plaintiff from fulfilling his education because of racial animus, but plaintiff does not provide any specific instances of discriminatory actions, nor does plaintiff show he was substantively harmed.


A. Legal Standard

In reviewing this complaint, the Court is mindful that "a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007). The Court construes pro se pleadings "to raise the strongest arguments that they suggest." Triestman v. Fed. Bureau of Prisons, 470 F. 3d 471, 474 (2d Cir. 2006) (emphasis omitted). However, "subject-matter jurisdiction, because it involves the court's power to hear a case, can never be forfeited or waived." United States v. Cotton, 535 U.S. 625, 630 (2002).

Here, in addition to the Section 1983, 1985, 1986, Title VI and state law claims, plaintiff appears to assert a variety of claims pursuant to Section 504 of the Rehabilitation Act, the IDEA, Title II ADA, and Titles VII and IX. Though plaintiff does not say whether his claims are against defendants in their individual or official capacities, the Court examines the merit of these claims against defendants in both capacities and in a manner that liberally construes the plaintiff's complaint in light of his pro se status.

B. Standard of Review

Subject matter jurisdiction is a threshold issue. Thus, where a party moves to dismiss under both Rules 12(b)(1) and 12(b)(6), the court must address the 12(b)(1) motion first. Sherman v. Black, 510 F. Supp. 2d 193, 197 (E.D.N.Y. 2007) (citing Rhulen Agency, Inc. v. Alabama Ins. Guar. Ass'n, 896 F. 2d 674, 678 (2d Cir. 1990)). It is axiomatic "that federal courts are courts of limited jurisdiction and lack the power to disregard such limits as have been imposed by the Constitution or Congress." Durant, Nichols, Houston, Hodgson & Cortese-Costa P.C. v. Dupont, 565 F. 3d 56, 62 (2d Cir. 2009) (quotation marks omitted). "If subject matter jurisdiction is lacking and no party has called the matter to the court's attention, the court has the duty to dismiss the action sua sponte." Id. Federal subject matter jurisdiction exists only where the action presents a federal question pursuant to 28 U.S.C. § 1331 or where there is diversity jurisdiction pursuant to 28 U.S.C. § 1332. See Petway v. N.Y.C. Transit Auth., 2010 WL 1438774, at *2 (E.D.N.Y. Apr. 7, 2010), aff'd, 450 F. App'x. 66 (2d Cir. 2011). Federal question jurisdiction is invoked where the plaintiff's claim arises "under the Constitution, laws, ...

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