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McNeil v. New York State Office of Substance Alcoholism and Substance Abuse Services

United States District Court, E.D. New York

March 31, 2017

LUREEN MCNEIL, Plaintiff,
v.
NEW YORK STATE OFFICE OF SUBSTANCE ALCOHOLISM AND SUBSTANCE ABUSE SERVICES, et al, Defendants.

          MEMORANDUM & ORDER

          NICHOLAS G. GARAUFIS, United States District Judge.

         On April 11, 2014, Plaintiff Lureen McNeil, proceeding pro se, commenced this action against Defendants New York State Office of Alcoholism and Substance Abuse Services ("OASAS"), a state agency; Arlene Gonzalez-Sanchez, individually and in her official capacity as Commissioner of OASAS; and Karen Carpenter-Palumbo, individually and in her official capacity as the former Commissioner of OASAS (collectively "Defendants"), alleging that Defendants discriminated against Plaintiff on the basis of her race in violation of Title VII of the Civil Rights Act of 1964, as codified, 42 U.S.C. §§ 2000e, et seq. (See Compl. (Dkt. 1).) On August 4, 2014, Plaintiff amended her Complaint (the "Amended Complaint"). (See First Am. Compl. ("FAC") (Dkt. 6).) On March 7, 2016, Defendants moved to dismiss the Amended Complaint pursuant to Federal Rule of Civil Procedure 12(c) (Defs.' Mot. to Dismiss ("Defs. Mot.") (Dkt. 52)).[1] Plaintiff opposed the motion (see PL's Mem. in Opp'n ("PL Opp'n) (Dkt. 56)) and separately moved to amend her complaint for a second time (Mot. to Amend Compl. ("PL Mot.") (Dkt. 42)). Defendants opposed Plaintiffs Motion to Amend. (Defs.' Reply in Supp. of Defs. Mot. & Opp'n to PL's Mot. to Amend ("Defs. Reply & Opp'n") (Dkt. 58).)

         By Order dated November 16, 2016, the court referred Defendants' Motion to Dismiss and Plaintiffs Motion to Amend to Magistrate Judge Cheryl L. Pollak for a Report and Recommendation ("R&R") pursuant to 28 U.S.C. § 636(b)(1)(B) and Federal Rule of Civil Procedure 72(b)(1). (Order Referring R&R (Dkt. 69).) On March 9, 2017, Judge Pollak issued an R&R, recommending that Defendants' Motion to Dismiss be granted in part and denied in part and that Plaintiffs Motion to Amend be granted in part and denied in part. (R&R (Dkt. 74) at 1-2.) Plaintiff filed a timely objection to the R&R, indicating that she wishes to add additional factual allegations and a demand for injunctive relief to her proposed Second Amended Complaint. (Resp. to R&R (Dkt. 75).)

         For the following reasons, Plaintiffs objections are SUSTAINED IN PART and OVERRULED IN PART and the R&R is ADOPTED IN PART. Defendants' Motion to Dismiss the Amended Complaint is GRANTED IN PART and DENIED IN PART. Because Plaintiff has advised the court of her intention to make further changes to her proposed Second Amended Complaint, Plaintiffs Motion to Amend is DENIED WITHOUT PREJUDICE WITH LEAVE TO REFILE. The court will not entertain repeated piecemeal amendments to Plaintiffs Complaint. Accordingly, Plaintiff is afforded one last opportunity to revise her proposed Complaint and move for leave to amend. If Plaintiff files a new motion to amend, Defendants will have an opportunity to file a response and argue that any new proposed amendments are futile.

         I. BACKGROUND

         A. Factual Background

         Plaintiff is a "Black-American woman who has been employed by [OASAS] for nearly 27 years." (Compl. ¶ 2.) The court assumes familiarity with the facts of this case, as alleged in Plaintiffs proposed Second Amended Complaint (the "Proposed SAC") and as set forth in detail in Judge Pollak's R&R. (See Proposed Second Am. Compl. ("SAC") (Dkt. 42-1); R&R at 2-9.)

         B. Procedural History

         On March 7, 2016, Defendants moved to dismiss the Amended Complaint, alleging that: (1) Plaintiffs Title VII claims are barred by the applicable statute of limitations; (2) Plaintiff cannot bring Title VII claims against Gonzalez-Sanchez and Carpenter-Palumbo because individuals cannot be sued under Title VII; and (3) although Plaintiff does not formally allege a cause of action under the New York State Human Rights Law (the "NYSHRL"), any such claims are barred by the Eleventh Amendment.[2] (Defs.' Mem. in Supp. of Mot. to Dismiss ("Defs. Mem.") (Dkt. 53).)

         Shortly before Defendants served their initial brief in support of their Motion to Dismiss the Amended Complaint, Plaintiff moved to amend the Complaint for a second time. (See Defs.' Ltr. (Dkt. 43).) Plaintiff has filed a proposed Second Amended Complaint, seeking to: (1) add new factual allegations; (2) name two additional defendants, Mary Ann DiChristopher, individually and in her official capacity as Associate Commissioner of OASAS, and Ramon Rodriguez, individually and in his official capacity as the former Director of New York City Operations of OASAS (together with Gonzalez-Sanchez and Carpenter-Palumbo, the "Individual Defendants"); and (3) remove certain claims and add new causes of action. (See SAC.) Plaintiffs Amended Complaint asserts Title VII claims against OASAS, Gonzalez-Sanchez, and Carpenter-Palumbo. (See generally FAC.) Plaintiffs Proposed SAC removes the Title VII claims against the Individual Defendants but seeks to add the following causes of action: (1) a claim for retaliation, in addition to discrimination, against OASAS, in violation of Title VII; (2) a claim for discrimination and retaliation against OASAS and the Individual Defendants in their official and personal capacities as aiders and abettors under the NYSHRL; (3) a claim of race discrimination and retaliation in violation of 42 U.S.C. § 1981 against OASAS and the Individual Defendants in their individual and official capacities; and (4) claims of equal protection and due process violations under 42 U.S.C. § 1983 against the Individual Defendants.[3](SAC ¶¶ 148-170.)

         In response to Plaintiffs Motion to Amend, Defendants argue that Plaintiffs new allegations are conclusory and fail to assert plausible claims under Title VII, NYSHRL, and Section 1983. (Defs. Reply & Opp'n at 9-12.) Defendants, therefore, maintain that Plaintiffs amendments are futile and leave to amend should be denied. (Id. at 12.)

         By Order dated November 16, 2016, the court referred Defendants' Motion to Dismiss and Plaintiffs Motion to Amend to Magistrate Judge Cheryl L. Pollak for an R&R. (Order Referring R&R.) On March 9, 2017, Judge Pollak issued an R&R, recommending that Defendants' Motion to Dismiss the Amended Complaint be granted in part and denied in part and that Plaintiffs Motion to Amend be granted in part and denied in part. (R&R at 1-2.)

         Plaintiff timely filed a response to the R&R, asking the court to confirm the R&R but noting that: (1) Plaintiff disagrees with the R&R's conclusion that Gonzalez-Sanchez "has not been personally involved with the discrimination and retaliation" against Plaintiff and requests leave to add new allegations against Gonzalez-Sanchez to her Complaint; and (2) in addition to money damages, Plaintiff "ask[ed] the court to grant other relief that may be necessary and proper" and seeks leave to further amend her Complaint to request that the court require Defendants to "restore [her] to the position that [she] would have been in if [Defendants] had not discriminated and retaliated against [her]" and declare that "[Defendants' treatment of [her] was unlawful." (Resp. to R&R at 1.) Defendants did not submit any objections to the R&R.

         II. LEGAL STANDARD

         In reviewing an R&R regarding a dispositive matter from a magistrate judge, the district court "may adopt those portions of the Report to which no objections have been made and which are not facially erroneous." La Torres v. Walker, 216 F.Supp.2d 157, 159 (S.D.N.Y. 2000); see Porter v. Potter. 219 F.App'x 112, 113 (2d Cir. 2007) (summary order) ("[F]ailure to object timely to a magistrate's report operates as a waiver of any further judicial review of the magistrate's decision."); Gesualdi v. Mack Excavation & Trailer Serv., Inc., No. 09-CV-2502 (KAM) (JO), 2010 WL 985294, at *1 (E.D.N.Y. Mar. 15, 2010) ("Where no objection to the [R&R] has been filed, the district court need only satisfy itself that there is no clear error on the face of the record." (internal quotation marks and citation omitted)). The district court must review de novo "those portions of the report... to which objection is made." 28 U.S.C. § 636(b)(1). However, to obtain this de novo review, an objecting party "must point out the specific portions of the [R&R] to which they object." U.S. Flour Corp. v. Certified Bakery, Inc., No. 10-CV-2522 (JS) (WDW), 2012 WL 728227, at *2 (E.D.N.Y. Mar. 6, 2012); see also Fed.R.Civ.P. 72(b)(2) ("[A] party may serve and file specific written objections to the [R&R]."). If a party "makes only conclusory or general objections, or simply reiterates his original arguments, the Court reviews the [R&R] only for clear error." Pall Corp. v. Entegris, Inc., 249 F.R.D. 48, 51 (E.D.N.Y.2008) (citations omitted): see also Mario v. P&C Food Mkts.. Inc., 313 F.3d 758, 766 (2d Cir. 2002) (holding that plaintiffs objection to an R&R was "not specific enough" to "constitute an adequate objection under... Fed.R.Civ.P. 72(b)"). Furthermore, "[a]n objection to [an R&R] in its entirety does not constitute a specific written objection within the meaning of Rule 72(b)." Healing Power. Inc. v. Ace Cont'l Exports. Ltd.. No. 07-CV-4175 (NGG) (RLM), 2008 WL 4693246, at *1 (E.D.N.Y. Oct. 17, 2008). "A decision is 'clearly erroneous' when the Court is, 'upon review of the entire record, left with the definite and firm conviction that a mistake has been committed.'" DiPilato v. 7-Eleven. Inc.. 662 F.Supp.2d 333, 339-40 (S.D.N.Y. 2009) (quoting United States v. Snow. 462 F.3d 55, 72 (2d Cir. 2006)).

         III. DISCUSSION

         A. Plaintiffs Motion Seeking Leave to Amend to Add New Factual Allegations

         Judge Pollak recommends that Plaintiff be granted leave to add factual allegations to her Complaint. (R&R at 13.) No party has objected to this portion of the R&R, and the time to do so has passed. See Fed.R.Civ.P. 72(b)(2). Finding no clear error, the court adopts this portion of the R&R. See Porter. 219 F.App'x at 113.

         Should Plaintiff choose to file a new proposed SAC, she is free to add any new factual allegations that she wishes.[4]

         B. Judge Pollak's Recommendations Concerning Defendants' Motion To Dismiss The Amended Complaint & Plaintiffs Other Proposed Amendments

         Because Plaintiffs Proposed SAC "continues to assert claims that may be subject to dismissal for the same reasons that the claims in the Amended Complaint were subject to challenge, " Judge Pollak first addresses the Defendants' Motion to Dismiss "insofar as the arguments raised are relevant to whether [P]laintiff's amendments would be futile and subject to dismissal." (R&R at 17.) In doing so, she analyzes the viability of Plaintiff s claims in three steps: (1) she examines whether Plaintiffs claims are barred by the Eleventh Amendment; (2) for those claims that are not barred by the Eleventh Amendment, she analyzes whether Plaintiffs factual allegations state a plausible claim to relief as to each cause of action; and (3) she examines whether Plaintiffs Title VII claims are barred by the statute of limitations. This Memorandum & Order is organized in the same manner.

         1. Eleventh Amendment Immunity

         Judge Pollak's recommendations concerning the application of Eleventh Amendment immunity rest on the assumption that Defendant is only seeking monetary relief in this action. (See generally R&R.) In her response to the R&R, Plaintiff appears to disagree with this interpretation of the Proposed SAC, however. (See Ltr.-Resp. to R&R at 1.)

My complaint asks the court to grant other relief that may be necessary and proper. That could include requiring defendants to restore me to the position that I would have been in [absent unlawful discrimination] ... I would like the chance to add this to my complaint.

(Id.). Upon review of Plaintiff s Proposed SAC, the court finds that Judge Pollak's determination that the SAC alleges only a demand for monetary relief is sound. A catch-all request for "such other and further relief as this Court deems necessary and proper" (SAC at 33) does not constitute a demand for injunctive relief. The court will therefore analyze the R&R consistent with this reading of the SAC.

         Moreover, Plaintiffs belated request to modify her Complaint to seek injunctive relief is not a proper "objection" to the R&R. C£ Rivera v. Federlin. No. 08-CV-7293 (PAC), 2011 WL 6014012, at *3 (S.D.N.Y. Dec. 2, 2011) (finding that "new factual allegation[s]" raised for the first time in an objection are not valid "objection[s]" and "will not be considered by the Court"); Forman v. Artuz. 211 F.Supp.2d 415, 418-19 n. 8 (S.D.N.Y. 2000) (stating that "factual assertions" may not be "properly raised" for the first time in an objection). Because Plaintiff does not assert a valid objection, the court review this portion of the R&R for clear error. a. Claims Barred by the Eleventh Amendment Judge Pollak recommends that this court find that the following claims are barred by the Eleventh Amendment and therefore leave to amend to add these claims should be denied as futile: (1) Plaintiffs proposed NYSHRL claims against OASAS and the Individual Defendants in their official capacities; (2) Plaintiffs proposed Section 1981 claims against OASAS and the Individual Defendants in their official capacities; and (3) Plaintiffs proposed Section 1983 claims against the Individual Defendants in their official capacities. (R&R at 29-30.) Finding no clear error, the court adopts this portion of the R&R.

         It is well-established that under the Eleventh Amendment, state agencies, like OASAS, and state agents sued in their official capacity are, as a general rule, immune from suits brought by private parties in federal court. See Woods v. Rondout Valley Central Sch. Dist. Bd. of Educ, 466 F.3d 232, 236 (2d Cir. 2006). While there are certain exceptions to this rule, [5] private parties are prohibited under the Eleventh Amendment from bringing the following claims against state agencies and/or state agents in their official capacities: (1) claims under the NYSHRL, see Baez v. New York, 629 F.App'x 116, 118 (2d Cir. 2015) (summary order); Goonewardena v. N.Y. State Workers' Comp. Bd.. No. 09-CV-8244 (LTS) (HBP), 2011 WL 4822553, at *4 (S.D.N.Y. Oct. 5, 2011); (2) Section 1981 claims, see Wans v. Office of Prof 1 Med. Conduct N.Y.. 354 F.App'x 459, 460 (2d Cir. 2009) (summary order); Sulehria v. New York. No. 13-CV-6990 (AGN), 2014 WL 4716084, at *4 (S.D.N.Y. Sept. 19, 2014); Buckley v. New York. 959 F.Supp.2d 282, 294 (E.D.N.Y. 2013); and (3) Section 1983 claims seeking monetary relief or non-prospective injunctive relief, see Edelman v. Jordan, 415 U.S. 651, 677 (1974); Braithwaite v. Kingsboro Psychiatric Ctr., No. 07-CV-127 (NGG), 2010 WL 3398962, at *2 (E.D.N.Y.Aug.26, 2010).

         Accordingly, if Plaintiff seeks leave to add any of the following claims to her Amended Complaint, leave to amend would be denied as futile insofar as Plaintiff seeks exclusively monetary relief:

• NYSHRL claims against OASAS;[6]
• NYSHRL claims against the Individual Defendants in their official capacities;
• Section 1981 claims against OASAS;
• Section 1981 claims against Individual Defendants in their official capacities; and
• Section 1983 claims against the Individual Defendants in their official capacities.

         Because the issue was not briefed by the parties or at issue in the R&R, the court declines to decide whether leave to amend to add any of these claims would be granted if Plaintiff adds a demand for injunctive relief to her Amended Complaint. If Plaintiff files a new proposed SAC with a demand for injunctive ...


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