United States District Court, S.D. New York
ORDER ADOPTING REPORT AND RECOMMENDATION
A.CROTTY United States District Judge.
se plaintiff Michael Booker brings this action against
the City of New York, Elizabeth Ehrlich, Aretha Singh, and
David Terhune pursuant to 42 U.S.C. §§ 1983, 1985,
and 2000(e); the Sixth, Eighth, and Fourteenth Amendments of
the United States Constitution; and Articles One, Five, and
Six of the New York State Constitution. He alleges that he
was wrongly denied employment with the New York City
Department of Parks and Recreation because of his prior
March 31, 2016, the defendants moved to dismiss Booker's
Amended Complaint pursuant to Fed.R.Civ.P. 12(b)(6).
See Dkt. 24. On January 13, 2017, Magistrate Judge
Henry Pitman issued a thorough and well-reasoned Report and
Recommendation ("R&R") that Booker's
Amended Complaint be dismissed. See Dkt. 35. On
January 31, 2017, the Court received Booker's objections
to the R&R, dated January 26, 2017. See Dkt. 36.
For the reasons stated below, the Court adopts the R&R in
Court may "accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate
judge." 28 U.S.C. § 636(b)(1)(C). The Court
"must determine de novo any part of the magistrate
judge's disposition that has been properly objected
to." Fed.R.Civ.P. 72(b)(3). For portions of an R&R
to which no objection has been made, however, "a
district court need only satisfy itself that there is no
clear error on the face of the record." See Wilds v.
United Parcel Serv., Inc., 262 F.Supp.2d 163, 169
(S.D.N.Y. 2003). "The objections of parties appearing
pro se are generally accorded leniency and should be
construed to raise the strongest arguments that they
suggest." DiPilato v. 7-Eleven, Inc., 662
F.Supp.2d 333, 340 (S.D.N.Y. 2009) (internal quotation marks
Review of R&R
first objection to the R&R is that Magistrate Judge
Pitman failed to adequately address whether the defendants
violated Article 23-A of the N.Y. Correction Law. While
Booker's frustration in gaining employment following his
criminal convictions is understandable, Article 23-A does not
create a federal right of action, as Magistrate Judge Pitman
determined. See June 8, 2015 Order to Show Cause
(Dkt. 17) at 2 & n.l; R&R at 20-21 n.8. Without some
independent basis for federal jurisdiction, Booker's
remedy, if any, lies in state court, not federal court.
third objection, Booker asserts that the Court should
exercise supplemental jurisdiction over his state law claims.
A district court may decline to exercise supplemental
jurisdiction over a state law claim when it "has
dismissed all claims over which it has original
jurisdiction." See 28 U.S.C. § 1367(c)(3).
As the R&R correctly states, "in the usual case in
which all federal-law claims are eliminated before trial, the
balance of factors to be considered under the pendent
jurisdiction doctrine-judicial economy, convenience,
fairness, and comity- will point toward declining to exercise
jurisdiction over the remaining state-law claims."
Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350
urges that supplemental jurisdiction is appropriate here
because (1) his "prior attempts at mediating this matter
via the state [have] proved futile;" and (2) "the
lapse of time since the actual violation . . . does not allow
for the re-litigation of the state law claims which have been
thoroughly litigated here." Pi's Objections (Dkt.
36) at 6-7. These assertions are insufficient to establish
that this is one of the unusual cases where the balance of
factors points toward exercising supplemental jurisdiction.
First, to the Court's knowledge, Booker has not filed his
claims in state court, so it cannot be said that doing so
would be futile. Second, because this action is still at the
motion to dismiss phase, it is incorrect that Booker's
claims have been "thoroughly litigated here." And
third, if Booker reasserts his state law claims in state
court within six months, he can still use the applicable
filing dates in this action for purposes of the statute of
limitations. See N.Y. Civil Practice Law &
Rules § 205(a). Because the Court does not exercise
supplemental jurisdiction over Booker's state law claims,
it also does not reach the question of whether the defendants
violated Article 23-A.
Booker contends that he exhausted his administrative
remedies. This objection appears to be directed at the merits
of his Title VII claim. However, the R&R does not reach
the defendants' argument that Booker failed to exhaust
his administrative remedies. Instead, Magistrate Judge Pitman
recommends dismissal of the claim on the basis that Booker
has not alleged membership in a protected class. See
R&R at 7, 9 n.5. Whether Booker exhausted his
administrative remedies, then, has no impact on the
R&R's analysis that Booker's Title VII claim
should be dismissed.
Court reviews those portions of the R&R to which Booker
has raised no objection for clear error and finds none.
Accordingly, the Court adopts the R&R in its entirety.
Leave to Amend
district judges should, as a general matter, liberally permit
pro se litigants to amend their pleadings, leave to amend
need not be granted when amendment would be futile."
Terry v. Inc. Village of Patchogue,826 F.3d 631,
633 (2d Cir. 2016). Booker has already had a chance to amend
his complaint, and any amendment to his federal claims would
be futile. ...