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Samuel v. Excelsior College

United States District Court, N.D. New York

April 30, 2014

WAYNE SAMUEL, Plaintiff,
v.
EXCELSIOR COLLEGE; KYLENE ABRAHAM; and PEGGY GOLDEN, Defendants.

WAYNE SAMUEL, Brooklyn, New York, Plaintiff, Pro Se.

REPORT-RECOMMENDATION AND ORDER

RANDOLPH F. TREECE, Magistrate Judge.

The Clerk has sent for review a civil rights Complaint filed by pro se Plaintiff Wayne Samuel pursuant to 42 U.S.C. § 1983. Dkt. No. 1, Compl. Samuel, who has not paid the filing fee, has submitted a Motion to Proceed In Forma Pauperis ("IFP"). Dkt. No. 2, IFP App.

I. DISCUSSION

A. Application to Proceed In Forma Pauperis

Upon review of Plaintiff's IFP Application (Dkt. No. 2), the Court finds that Plaintiff has demonstrated sufficient economic need and may commence this action without prepayment of the filing fee. Thus, Plaintiff's IFP Application is granted.

B. Pleading Requirements

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 a court's responsibility to determine that a plaintiff may properly maintain his complaint before permitting him to proceed further with his action.

In reviewing a pro se complaint, this Court has a duty to show liberality toward pro se litigants, see Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990), and should exercise "extreme caution... in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and both parties (but particularly the plaintiff) have had an opportunity to respond." Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983) (emphasis in original) (citations omitted). Therefore, a court should not dismiss a complaint if the plaintiff has stated "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 556). Although the court should construe the factual allegations in the light most favorable to the plaintiff, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Id. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 555). "[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 show[n]'-that the pleader is entitled to relief.'" Id. at 679 (quoting FED. R. CIV. P. 8(a)(2)). Furthermore, Federal Rule of Civil Procedure 8 "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 555). A pleading that only "tenders naked assertions devoid of further factual enhancement" will not suffice. Id. (internal quotation marks and alterations omitted). Allegations that "are so vague as to fail to give the defendants adequate notice of the claims against them" are subject to dismissal. Sheehy v. Brown, 335 F.Appx. 102, 104 (2d Cir. 2009).

C. Allegations Contained in the Complaint

According to the allegations in the Complaint, on or about April 26, 2008, Plaintiff was being evaluated for a clinical nursing exam by Defendant Kylene Abraham, a clinical evaluator for Excelsior College at St. Joseph's Hospital, located in Syracuse, New York. Compl., Facts at ¶ 1. At some point in the exam, the patient became uncooperative when, during the Plaintiff's respiratory assessment of the patient's lungs, he stopped deep breathing and stated, in sum and substance, that he was in pain and was having a bad day. Id. Plaintiff went to another room, documented the incident and findings in his exam booklet, and turned it in to Defendant Abraham. Id., Facts at ¶ 2. After conferring with Defendant Peggy Golden, the clinical associate, Defendant Abraham informed Plaintiff that he failed the entire exam because he failed to finish the respiratory assessment. Id., Facts at ¶¶ 2-3. Despite Plaintiff's protestations regarding the patient's failure to cooperate, the failing grade was sustained by Defendant Golden. Id., Facts at ¶ 3. On April 28, 2008, Plaintiff appealed the decision to the Excelsior College Examination Appeals Subcommittee; on May 23, 2008, the failing grade was sustained by that entity. Id., Facts at ¶ 4.

On June 9, 2008, Plaintiff filed a racial discrimination complaint against Excelsior College with the United States Office of Civil Rights, who forwarded the complaint to the Office for Civil Rights ("OCR") within the United States Department of Education. Id., Facts at ¶ 5. There appears to have been some kind of investigation, resulting in OCR sustaining the failing grade. Id., Facts at ¶¶ 5-6. On September 14, 2009, Plaintiff appealed to the deputy assistant secretary for enforcement. On March 21, 2014, Plaintiff received a letter from the deputy assistant secretary denying the appeal and notifying him that he exhausted administrative review and may have a right to file a private suit in federal court. Id., Facts at ¶ 6 & Ex. 1.

At some point after he filed the above complaints, Defendants amended the reason for the failure, claiming instead that Plaintiff failed because he "plac[ed] the patient on his right side for lung assessment, then auscultate four times on the left side and lower right side." Id. at p. 1. Apparently placing the patient on his side to perform a respiratory assessment is grounds for failure. Id. at Second Cause of Action ¶ 1.

Based upon the above, Plaintiff claims that his rights were violated when Defendants doctored his exam and failed him in violation of his constitutional and other unspecified rights. As explained more fully below, Plaintiff fails to state a ...


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