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Silman v. Utica College

United States District Court, N.D. New York

April 30, 2014

CRAIG SILMAN, Plaintiff,
v.
UTICA COLLEGE, TYSON KRIEGER, JOHN JOHNSON, ALANE VARGA, STEVE PATTARINI, JUDITH KIRKPATRICK, TODD HUTTON, LAWRENCE GILROY, DOES 1-100, Defendants.

CRAIG SILMAN Plaintiff pro se Utica, NY.

ORDER and REPORT-RECOMMENDATION

THÉRÈSE WILEY DANCKS, Magistrate Judge.

Presently before the Court is a pro se complaint and application to proceed in forma pauperis filed by Plaintiff Craig Silman. (Dkt. Nos. 1-2.) Plaintiff alleges that Defendants, who are all affiliated with Utica College, discriminated against him by failing to reasonably accommodate his disability and then retaliated against him by administratively withdrawing him from campus. (Dkt. No. 1.) For the reasons discussed below, I recommend that the Court dismiss Claim III as to the individual defendants without leave to amend, dismiss the claims for intentional and negligent infliction of emotional distress against all parties with leave to amend, and direct the United States Marshal to serve the complaint on Defendant Utica College so that it may respond to the Rehabilitation Act claims against it.

I. APPLICATION TO PROCEED IN FORMA PAUPERIS

Plaintiff has applied to proceed in forma pauperis. (Dkt. No. 2.) A court may grant in forma pauperis status if a party "is unable to pay" the standard fee for commencing an action. 28 U.S.C. § 1915(a)(1) (2006). After reviewing Plaintiff's in forma pauperis application (Dkt. No. 2), I find that Plaintiff meets this standard. Therefore, Plaintiff's application to proceed in forma pauperis is granted.[1]

II. SCREENING OF THE COMPLAINT

A. Applicable Legal Standard

28 U.S.C. § 1915(e) (2006) directs that when "any person" proceeds in forma pauperis, "the court shall dismiss the case at any time if the court determines that... the action... (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) (2006).

In order to state a claim upon which relief can be granted, a complaint must contain, inter alia, "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). The requirement that a plaintiff "show" that he or she is entitled to relief means that a complaint "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)) (emphasis added). "Determining whether a complaint states a plausible claim for relief... requires the... court to draw on its judicial experience and common sense.... [W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not shown - that the pleader is entitled to relief." Id. at 679 (internal citation and punctuation omitted).

"In reviewing a complaint... the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor." Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). Courts are "obligated to construe a pro se complaint liberally." Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678.

When screening a complaint, the court has the duty to show liberality towards pro se litigants. Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam). "[E]xtreme caution should be exercised in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and [the] parties have had an opportunity to respond." Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983).

B. Allegations of the Complaint

Plaintiff alleges that he is a "qualified person with a disability." (Dkt. No. 1 ¶ 12.) On October 30, 2013, he received a doctor's note excusing him from five days of classes at Utica College so that he could rest his shoulder. Id. ¶ 15. Plaintiff provided the college with a copy of the note. Id.

On November 3, 2013, Plaintiff sent an email to his instructors requesting additional time to take tests and turn in assignments. Id. ¶ 16. All of Plaintiff's instructors except for Defendant ...


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