United States District Court, S.D. New York
MEMORANDUM DECISION AND ORDER
B. DANIELS United States District Judge.
Paul Moore, a retired Department of Correction
("DOC") employee, filed this action against
Defendants the City of New York, New York City Department of
Correction, and City employees Stephen Wettenstein, Michele
Clifford, Nadine Pinnock, Patricia LeGoff, Shon Brown, and
Renee Johnson, in their individual and official capacities,
claiming that Defendants discriminated against him, subjected
him to a hostile work environment, and retaliated against him
in violation of Title VII of the Civil Rights Act of 1964
("Title VII"); Title VI of the Civil Rights Act of
1964 ("Title VI"); 42 U.S.C. § 1981
("Section 1981"); 42 U.S.C. § 1983
("Section 1983"); 42 U.S.C. § 1985
("Section 1985"); 42 U.S.C. § 1986
("Section 1986"); the Americans with Disabilities
Act of 1990 ("ADA"); 29 U.S.C. § 794
("Rehabilitation Act"); N.Y. Exec. Law § 296
("NYSHRL"); and N.Y.C. Admin. Code §§
8-101 et seq. ("NYCHRL"). (Third Am.
Compl. ("TAC"), ECF No. 39.) Defendants moved to
partially dismiss the Third Amended Complaint. (Defs.'
Mot. to Dismiss ("Mot"), ECF Nos. 40-42.)
matter was referred to Magistrate Judge James L. Cott. (ECF
No. 11.) Before this Court is Magistrate Judge Cott's
Report and Recommendation ("Report, " ECF No. 48),
recommending that this Court grant Defendants' motion to
dismiss for failure to state a claim pursuant to Rule
12(b)(6), with leave to amend the Complaint. (Id. at
Report, Magistrate Judge Cott advised the parties that
failure to file timely objections to the Report would
constitute a waiver of those objections on appeal.
(Id. at 64-65); see also 28 U.S.C. §
636(b)(1); Fed.R.Civ.P. 72(b). Plaintiff filed a timely
objection to the Report (PI. Obj. to Report ("PI.
Obj."), ECF No. 49) and Defendants filed a timely
response to Plaintiffs objection (Defs.' Resp. to PI.
Obj. ("Defs.' Resp."), ECF No. 50). This Court
overrules Plaintiffs objection and fully adopts Magistrate
Judge Cott's recommendation. Defendants' motion to
dismiss is GRANTED with leave to amend.
district court may accept, reject or modify, in whole or in
part, the findings and recommendations set forth within the
Report. See 28 U.S.C. § 636(b)(1)(C). When no
objections to the Report are made, the Court may adopt the
Report if "there is no clear error on the face of the
record." Adee Motor Cars, LLC v. Amato, 388
F.Supp.2d 250, 253 (S.D.N.Y. 2005) (citation omitted).
there are objections to the Report, this Court must make a
de novo determination as to the objected-to portions
of the Report. 28 U.S.C. § 636(b)(1)(C); see also
Rivera v. Barnhart, 423 F.Supp.2d 271, 273 (S.D.N.Y.
2006). It is sufficient that this Court "arrive at its
own, independent conclusions" regarding those portions
to which objections were made. Nelson v. Smith, 618
F.Supp. 1186, 1189-90 (S.D.N.Y. 1985) (internal citation
omitted)); see United States v. Raddatz, 447 U.S.
667, 675-76 (1980). However, where a litigant's
objections are conclusory, repetitious, or perfunctory, the
standard of review is clear error. McDonaugh v.
Astrue, 672 F.Supp.2d 542, 547-48 (S.D.N.Y. 2009).
PLAINTIFF FAILS TO STATE A CLAIM
Report properly held that Plaintiff failed to state a claim
under Rule 12(b)(6) for violations of Title VII, Title VI,
Section 1981, Section 1983, ADA, Rehabilitation Act, and
NYSHRL. The Report also properly held that Plaintiff should
be granted leave to file a fourth and final Amended
Complaint. There was no clear error in Magistrate Judge
Cott's findings. Plaintiff objected only to the portion
of the Report concluding that Title I of the ADA, rather than
Title II, applies to Plaintiffs ADA claims. (PL Obj. at 4.)
This court reviews that portion of the Report de novo.
See 28 U.S.C. § 636(b)(1)(C); see also Rivera,
All, F.Supp.2d at 273.
Judge Cott found that "Moore's claims fall squarely
within the umbrella of Title 1 and outside the confines of
Title II." (Report at 44.) Accordingly, Magistrate Judge
Cott recommended that "Moore's Title II claim be
dismissed with respect to all Defendants." (Report at
45.) The Second Circuit law is clear: the ADA
"unambiguously limits employment discrimination claims
to Title I." Mary Jo C. v. N.Y. State & Local
Ret. Sys., 707 F.3d 144, 171 (2d Cir. 2013) (affirming
dismissal of a Title II claim against plaintiff s former
employer for denial of retirement benefits following
termination for a disability and holding that plaintiffs
exclusive ADA remedy against her employer was under Title I).
During his employment at the DOC, Plaintiff was injured
during an inmate cell extraction and was later granted
"3/4 disability" to accommodate his injuries. (TAC
¶¶ 85-86, 90.) Around the time of his retirement
from the DOC, Plaintiff applied for a pistol permit or
"Good Guy Letter, " which would allow him to
continue to carry a firearm as a retired officer if,
inter alia, he did not suffer from any disabilities
that would adversely affect his ability to possess a firearm.
(Id. at ¶¶ 92-3, 97-8.) Plaintiff alleges
that because Defendants have ignored his request for the
pistol permit or "Good Guy Letter, " it has been
"essentially denied" without any "valid
business justification" or "good-faith basis."
(Id. at ¶¶ 94, 101-05.) Because Plaintiff
brings this ADA claim against his former employer
for allegedly discriminating against him in denying him
privileges as a retired correctional employee,
Plaintiffs claim is limited to Title I. Accordingly,
Plaintiffs Title II claims are properly dismissed as to all
reviewed Magistrate Judge Cott's Report and
Recommendation, this Court overrules Plaintiffs objection and
adopts the Report in full.
motion to dismiss is GRANTED and Plaintiff is granted leave
to file a ...