United States District Court, N.D. New York
MICHAEL TROEGER Plaintiff pro se Shokan, NY
DRAKE, LOEB, HELLER, KENNEDY, GOGERTY, GABA AND RODD, PLLC ADAM L. RODD, ESQ. Attorneys for Defendants New Windsor, NY
MEMORANDUM-DECISION and ORDER
DAVID N. HURD, District Judge.
Pro se plaintiff Michael Troeger ("plaintiff" or "Troeger") brings this action against defendant Ellenville Central School District ("Ellenville") alleging employment discrimination on the basis of disability and retaliation. Plaintiff seeks injunctive relief and compensatory damages.
Defendant moved to dismiss the complaint pursuant to Federal Rules of Civil Procedure 12(b)(5) and 4(m) based upon insufficient service of process. ECF No. 5. Plaintiff opposed, defendant replied and plaintiff filed a sur-reply without permission. Plaintiff then moved for a preliminary injunction. ECF No. 17. Defendant opposed that motion and plaintiff replied. Recently, plaintiff filed another motion for injunctive relief. ECF No. 22. All of the pending motions were considered on their submissions without oral argument.
Plaintiff is a guidance counselor employed by Ellenville. He alleges, inter alia, that Ellenville discriminated against him on the basis of his disability, improperly confiscated his sick time, and retaliated against him for his complaints of discrimination. He was initially injured in November 2004 and October 2005 while working, leaving him "permanently/ partially disabled, in that he could not walk, sit, stand, bend, sleep, lift, or run like that of an average person of his age due to two herniated discs in his back." Compl. ¶¶ 7-8. After filing various complaints directly with the school, plaintiff filed a complaint of discrimination against Ellenville with the U.S. Equal Employment Opportunity Commission ("EEOC") on July 27, 2012. On September 24, 2012, he was mailed a right-to-sue letter from the EEOC.
Troeger filed this complaint on December 26, 2012. Two days later, on December 28, 2012, the Clerk of the Court issued to plaintiff a Summons to serve on defendant. Plaintiff was mailed a copy of the court's Pro Se Handbook and General Order Number 25 on the same date. A Filing Order was also issued which instructed that the complaint must be served on defendant within 60 days of filing the action and an initial conference was scheduled for April 9, 2013 with United States Magistrate Judge Christian F. Hummel. On February 21, 2013, four days shy of the 60 day deadline in which to serve the complaint pursuant to General Order Number 25 (by February 25, 2013), plaintiff requested an adjournment of the initial conference and indicated that due to retaliation by his employer, he had been rendered medically incapacitated and service of the complaint had not yet been effected. On February 26, 2013, plaintiff's request was granted and the initial conference was adjourned until April 29, 2013. Plaintiff did not serve the complaint upon Ellenville until June 5, 2013 and did not file proof of service until September 27, 2013.
The initial conference was eventually held on July 22, 2013 and the Rule 16 scheduling conference was adjourned without date pending a decision on the instant motion.
III. RELEVANT LEGAL STANDARDS
A. 120 Day Deadline Under Fed.R.Civ.P. 4(m)
Federal Rule of Civil Procedure 4(m) provides that,
[i]f a defendant is not served within 120 days after the complaint is filed, the court-on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the ...