United States District Court, S.D. New York
OPINION AND ORDER
Edgardo Ramos, U.S.D.J.
se plaintiff Ileen Cain ("Plaintiff or
"Cain") was enrolled in the surgical technologist
program at Mandl College of Allied Health ("Mandl")
for approximately three j months in 2012. She brings this
action against Mandl, Mandl College, Inc. ("MCI"),
Mandl's President, Mel Weiner ("M. Wiener"),
its Director of Operations, Stew Weiner ("S.
Weiner") and a fellow student, Aisha Reid ("Reid,
" and collectively, Defendants"), alleging that
Defendants discriminated against her on the basis of her
disability by harassing her and allowing fellow students to
harass her, and by retaliating against her when she
complained of the abuse. The Court dismissed Plaintiffs
original complaint without prejudice on May 29, 2015, and
Plaintiff subsequently filed an amended complaint
("FAC"), which the Court dismissed, again without
prejudice, on September 30, 2016 (the "September 2016
Order"). Plaintiff filed a Second Amended Complaint
("SAC") on November 7, 2016. Defendants now move to
dismiss the SAC with prejudice pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure. See Doc. 102.
For the reasons discussed below, Defendants' motion to
dismiss is GRANTED. Plaintiff will not be given an
opportunity to file a third amended complaint.
Background and Procedural History
Court presumes familiarity with the September 2016 Order,
which details the facts and procedural history of this case,
Doc. 89, and discusses here only those facts necessary for
its disposition of the instant motion. In its September 2016
Order, the Court dismissed Plaintiffs discrimination and
retaliation claims because Plaintiff failed to raise "a
plausible inference that the difficulties she faced at Mandl
were the result of discrimination on the basis of her Post
Traumatic Stress Disorder." Doc. 89 at 13. The Court
also found that Plaintiff failed to adequately allege that
she qualified as a disabled individual in order to assert
claims under the ADA and Section 504 of the Rehabilitation
Act. Doc. 89 at 14.
SAC incorporates by reference the claims and factual
allegations contained in her FAC, with the exception of the
cyberstalking claim. In the SAC, Plaintiff attempts to cure
the deficiencies identified by the Court in the September
2016 Order, primarily by describing how her PTSD manifests
and providing definitions of the terms "coo coo"
and "kook, " the names that her fellow Mandl
students allegedly used to harass her. Doc. 95.
ruling on a motion to dismiss pursuant to Federal Rule of
Civil Procedure 12(b)(6), the court must accept all factual
allegations in the complaint as true and draw all reasonable
inferences in the plaintiffs favor. Nielsen v.
Rabin, 746 F.3d 58, 62 (2d Cir. 2014). The court is not
required to credit "mere conclusory statements" or
"thread bare recitals of the elements of a cause of
action." Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007)); see also Id. at 681 (citing
Twombly, 550 U.S. at 551). "To survive a motion
to dismiss, a complaint must contain sufficient factual
matter ... to 'state a claim to relief that is plausible
on its face.'" Id. at 678 (quoting
Twombly, 550 U.S. at 570). A claim is facially
plausible "when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged."
Id. (citing Twombly, 550 U.S. at 556). More
specifically, the plaintiff must allege sufficient facts to
show "more than a sheer possibility that a defendant has
acted unlawfully." Id. If the plaintiff has not
"nudged [his] claims across the line from conceivable to
plausible, [the] complaint must be dismissed."
Twombly, 550 U.S. at 570; Iqbal, 556 U.S.
question in a Rule 12 motion to dismiss "is not whether
a plaintiff will ultimately prevail but whether the claimant
is entitled to offer evidence to support the claims."
Sikhs for Justice v. Nath, 893 F.Supp.2d 598, 615
(S.D.N.Y. 2012) (quoting Villager Pond, Inc. v. Town of
Darien, 56 F.3d 375, 278 (2d Cir. 1995)) (internal
quotation marks omitted). "[T]he purpose of Federal Rule
of Civil Procedure 12(b)(6) 'is to test, in a streamlined
fashion, the formal sufficiency of the plaintiffs statement
of a claim for relief without resolving a contest regarding
its substantive merits, '" and without regard for
the weight of the evidence that might be offered in support
of Plaintiff s claims. Halebian v. Berv, 644 F.3d
122, 130 (2d Cir. 2011) (quoting Global Network
Commc'ns, Inc. v. City of New York, 458 F.3d 150,
155 (2d Cir. 2006)).
same standard applies to motions to dismiss pro se
complaints. See Zapolski v. Fed. Republic of
Germany, 425 F.App'x 5, 6 (2d Cir. 2011). The Court
remains obligated to construe apro se complaint
liberally, Hill v. Curcione, 657 F.3d 116, 122 (2d
Cir. 2011), and to interpret a pro se plaintiffs
claims as raising the strongest arguments that they suggest.
Tries tman v. Fed. Bureau of Prisons, 470 F.3d 471,
474 (2d Cir. 2006). The obligation to be lenient while
reading a pro se plaintiffs pleadings "applies
with particular force when the plaintiffs civil rights are at
issue." Jackson v. N.Y.S. Dep't of Labor,
709 F.Supp.2d 218, 224 (S.D.N.Y.2010) (citing McEachin v.
McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004)).
"However, even pro se plaintiffs asserting
civil rights claims cannot withstand a motion to dismiss
unless their pleadings contain factual allegations sufficient
to raise a right to relief above the speculative level."
Id. (quoting Twombly, 550 U.S. at 555)
(internal quotation marks omitted). A pro se
plaintiffs pleadings still must contain "more than an
unadorned, the defendant-unlawfully-harmed me
accusation." Iqbal, 566 U.S. at 678. A
complaint that "tenders naked assertion[s] devoid of
further enhancement" will not suffice. Id.
(quoting Twombly, 550 U.S. at 557) (internal
quotation marks omitted); see also
Triestman, 470 F.3d at 477 ("[P]ro se
status 'does not exempt a party from compliance with
relevant rules of procedural and substantive law.'")
(quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir.
1983)). Additionally, as the Second Circuit has noted,
"[a] district court deciding a motion to dismiss
may consider factual allegations made by apro
se party in his papers opposing the motion."
Walker v. Schult, 111 F.3d 119, 122 n.l (2d Cir.
2013) (emphasis added).
Claims for Discrimination and Retaliation in Violation of
the ADA and the Rehabilitation Act.
alleges that Defendants violated her rights under Tittle III
of the ADA and Section 504 of the Rehabilitation Act. Title
III of the ADA provides that "[n]o individual shall be
discriminated against on the basis of a disability in the
full and equal enjoyment of the goods, services, facilities,
privileges, advantages, or accommodations of any place of
public accommodation by any person who owns ... or operates a
place of public accommodation." 42 U.S.C. §
12182(a). Correspondingly, Section 504 of the Rehabilitation
Act provides that "[n]o otherwise qualified individual
with a disability . . . shall, solely by reason of her or his
disability, be excluded from the participation in, be denied
the benefits of, or be subject to discrimination under any
program or activity receiving Federal financial
assistance." 29 U.S.C. § 794(a).
establish & prima facie violation of these Acts,
a plaintiff must demonstrate: (1) "that she is a
qualified individual with a disability;" (2) that the
defendants are subject to one of the Acts;" and (3)
"that she was denied the opportunity to participate in
or benefit from defendants' services, program, or
activities, or was otherwise discriminated against by
defendants, by reason of her disability." Harris v.
Mills, 572 F.3d 66, 73-74b (2d Cir. 2009) (quoting
Powell v. Natl Bd of Med. Examiners, 364 F.3d 79, 85
(2d Cir.), opinion corrected, 511 F.3d 238 (2d Cir.
2004)). To state a claim for retaliation under the Acts, a
plaintiff must establish that: (1) she "was engaged in
protected activity;" (2) "the alleged retaliator
knew that plaintiff was involved in protected activity;"
(3) "an adverse decision or course of action was taken
against plaintiff;" and (4) "a causal connection
exists between the protected activity and the adverse
action." Weixelv. Bd. of Educ. of City of New
York, 287 F.3d 138, 148 (2d Cir. 2002) (citation and
internal quotation marks omitted).
preliminary matter, in order to bring ADA and Section 504
claims, Plaintiff must demonstrate that she is a qualified
individual with a disability. In the September 2016 Order, the
Court found that Plaintiff failed to adequately allege that
she is a disabled individual as defined by the ADA and the
Rehabilitation Act because the FAC contained "no
allegations as ...