United States District Court, S.D. New York
OPINION & ORDER
KATHERINE B. FORREST, District Judge.
On November 22, 2013, plaintiff Claude Holmes filed an action against defendant the New York City Department of Citywide Administrative Services ("DCAS"), alleging, inter alia, that his supervisor at DCAS had subjected him to racial slurs and thereby created a hostile work environment, and that he was demoted and then terminated due to racial discrimination, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e to 2000e-17. (See 13-cv-8445 ECF No. 2.) Holmes initially proceeded pro se, but he later retained counsel, who filed an amended complaint that added claims based on the New York City Human Rights Law ("NYCHRL"), N.Y. City Admin. Code §§ 8-101 et seq. (13cv-8445 ECF No. 16.)
On October 8, 2014, plaintiff Claude Holmes filed the action currently before this Court against DCAS, asserting claims under the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12112-12117, and Title VII. (ECF No. 1 ("Compl.").) Holmes filed this action pro se, even though he was represented by counsel in the earlier-filed action.
Confronted with Holmes' two actions, which appeared to assert overlapping claims, the Court held a joint conference on December 12, 2014, at which Holmes was ordered to appear in person and to show cause why the later-filed action should not be dismissed. (ECF No. 9.) At the conference, Holmes and his counsel in the earlier-filed action represented that the later-filed action currently before the Court concerns a different time period and a different adverse employment action than that at issue in the earlier-filed action. (See Transcript of December 12, 2014 Conference, ECF No. 14 ex. A ("Tr.") at 3-4.) Holmes also stated that in the laterfiled action he is alleging disability discrimination under the ADA, and not race discrimination under Title VII. (Tr. 6-7.) For this reason, the Court dismissed the Title VII claim asserted in Holmes' initial complaint, as memorialized in an order dated December 15, 2014. (Tr. 8, 16; ECF No. 11.) Following the conference, the earlier-filed action settled. (ECF No. 29 at 2; 13-cv-8445 ECF No. 55.) Accordingly, this Opinion & Order addresses Holmes' later-filed action only.
On February 12, 2015, DCAS moved to dismiss via a letter-motion. (ECF Nos. 13-14.) Holmes submitted an affirmation in opposition (ECF No. 19 ("Pl.'s Opp'n")) on March 11, 2015. The motion became fully briefed on March 19, 2015. (ECF No. 22.)
Despite the pending motion to dismiss, Holmes then filed a proposed amended complaint on April 7, 2015. (ECF No. 25 ("Am. Compl.").) The proposed amended complaint asserts an ADA claim; it does not assert a Title VII claim. (Am. Compl.) It specifies that Holmes' alleged disability is a "right knee injury." (Am. Compl. § II.D.) In both his initial complaint and his proposed amended complaint, Holmes seeks, inter alia, reinstatement of his job and back wages. (Compl. § IV; Am. Compl. § IV.) On April 24, 2015, DCAS filed a letter requesting that the Court either strike or dismiss Holmes' proposed amended complaint. (ECF No. 29.) The Court deems the proposed amended complaint as a proffer of those facts plaintiff would assert were he provided an opportunity to amend.
Plaintiff's claims-in his complaint and his proposed amended complaint- are insufficient to state a claim. Moreover, any amendment would be futile. Holmes' temporary knee and ankle injuries do not qualify, separately or taken together, as a "disability" within the meaning of the ADA. And because Holmes has not plausibly alleged that he has a disability or a record of a disability, and/or that he is regarded as having a disability, DCAS cannot have discriminated against him on the basis of disability, or failed to reasonably accommodate his disability. Therefore, and for the reasons that follow, the Court GRANTS DCAS's motion to dismiss Holmes' initial complaint and DENIES Holmes leave to amend his complaint because it would not survive a motion to dismiss, and thus amendment would be futile. The Court accordingly DISMISSES this action.
I. LEGAL STANDARD
A. Motion to Dismiss
Under Federal Rule of Civil Procedure 12(b)(6),  a defendant may move to dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must provide grounds upon which their claim rests through "factual allegations sufficient to raise a right to relief above the speculative level.'" ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, the complaint must allege "enough facts to state a claim to relief that is plausible on its face." Starr v. Sony BMG Music Entm't, 592 F.3d 314, 321 (2d Cir. 2010) (quoting Twombly, 550 U.S. at 570). "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).
In applying this standard, the Court accepts as true all well-pled factual allegations, but does not credit "mere conclusory statements" or "[t]hreadbare recitals of the elements of a cause of action." Id. The Court will give "no effect to legal conclusions couched as factual allegations." Port Dock & Stone Corp. v. Oldcastle Ne., Inc., 507 F.3d 117, 121 (2d Cir. 2007) (citing Twomblv, 550 U.S. at 555). If the Court can infer no more than the mere possibility of misconduct from the factual averments-in other words, if the well-pled allegations of the complaint have not "nudged [plaintiff's] claims across the line from conceivable to plausible"- dismissal is appropriate. Twombly, 550 U.S. at 570.
Complaints drafted by pro se plaintiffs are construed "liberally" and interpreted "to raise the strongest arguments that they suggest." Pabon v. Wright, 459 F.3d 241, 248 (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). Nevertheless, to survive a motion to dismiss, a pro se plaintiff must still plead enough facts to state a claim to relief that is plausible on its face. See Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011). A complaint is "deemed to include any written instrument attached to it as an exhibit, materials incorporated in it by reference, and documents that, although not incorporated by reference, are integral' to the complaint." L-7 Designs, Inc. v. Old Navy, LLC, 647F.3d 419, 422 (2d Cir. 2011) (quoting Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004)).
B. Motion to Amend
Rule 15(a) of the Federal Rules of Civil Procedure requires that leave to amend be freely granted "when justice so requires." Fed.R.Civ.P. 15(a)(2). "However, it is well established that leave to amend a complaint need not be granted when amendment would be futile." Ellis v. Chao, 336 F.3d 114, 127 (2d Cir. 2003). Futility turns on whether an amended pleading could withstand a motion ...