United States District Court, N.D. New York
PLAINTIFF: DONNA PROFITT, Pro Se .
REPORT AND RECOMMENDATION
E. PEEBLES CHIEF U.S. MAGISTRATE JUDGE
an action brought by pro se plaintiff Donna Profitt
originally naming two individuals and one corporation as
defendants. Following initial review of plaintiff's
complaint and accompanying application for leave to proceed
in forma pauperis ("IFP"), she was granted
leave to proceed without prepayment of fees, but her
complaint was dismissed as failing to state a legally
cognizable claim, with leave to replead. Plaintiff has since
submitted an amended complaint to the court, and that
complaint has once again been forwarded to me for review.
Because plaintiff's amended complaint does not cure the
deficiencies noted in my earlier report, recommendation, and
order, I recommend that it be dismissed without leave to
commenced this action on or about June 30, 2017. Dkt. No. 1.
Plaintiff's complaint asserted claims under the United
States Department of Transportation ("DOT")
regulations, including 49 C.F.R. §§ 40.131, 40.137.
Plaintiff's complaint centered upon a drug test
administered to her in October 2016 that apparently yielded a
positive result for the presence of illegal substances and
resulted in the loss of her employment as a bus driver.
Id. at 4.
complaint and accompanying IFP application were forwarded to
me for initial review pursuant to 28 U.S.C. § 1915(e).
Based upon that review I granted plaintiff leave to proceed
without prepayment of fees, but recommended that her
complaint be dismissed, with leave to replead, based upon the
fact that no private right of action is created by the DOT
regulations under which her claims were brought. Dkt. No. 4.
That recommendation was adopted by order issued by Senior
District Judge Lawrence E. Kahn on August 29, 2017. Dkt. No.
5. Under that order plaintiff was granted leave to replead
within thirty days of the date of the order.
November 15, 2017, plaintiff submitted a proposed amended
complaint naming Donald S. Freedman and Barbra Oakley as
defendants and asserting claims under the same DOT
regulations that were the subject of her initial complaint.
Dkt. No. 10. Plaintiff's amended complaint cites the same
basic underlying facts, and requests reinstatement to her
school bus driving position, a public apology, and an award
of damages in the amount of $7, 000, 000. Id.
initial complaint was ambiguous concerning both the nature of
her claims and the basis for the court's subject matter
jurisdiction, asserting both federal question and diversity
of citizenship as grounds for jurisdiction under 28 U.S.C.
§§ 1331, 1332, respectively. See Dkt. No.
1 at 3. Plaintiff's amended complaint asserts only
diversity of citizenship as a basis for jurisdiction, and
satisfies the requirements of 28 U.S.C. § 1332, since it
appears from the allegations set forth in the complaint that
plaintiff and defendants are citizens of different states,
and the amount at stake exceeds $75, 000.
amended complaint, however, does not cure the substantive
deficiencies noted in my initial report, recommendation, and
order. Specifically, plaintiff's claims once again are
predicated upon alleged violation of DOT regulations,
including those set forth above. As was discussed in my
initial report, recommendation, and order, there is no
private right action afforded under those regulations.
See 49 C.F.R. § 219.17(b) ("nothing in
this part . . . [c]reates a private right of action on the
part of any person for enforcement of provisions of this part
or for damages resulting from non-compliance with this
part[.]"). Accordingly, plaintiff's amended
complaint again fails to state a cognizable claim, and is
therefore subject to dismissal.
noted in my initial report, recommendation, and order,
ordinarily a court should not dismiss a complaint filed by a
pro se litigant without granting leave to amend at
least once "when a liberal reading of the complaint
gives any indication that a valid claim might be
stated." Branum v. Clark, 927 F.2d 698, 704-05
(2d Cir.1991); see also Fed. R. Civ. P. 15(a)
("The court should freely give leave when justice so
requires."); see also Mathon v. Marine Midland Bank,
N.A., 875 F.Supp. 986, 1003 (E.D.N.Y.1995) (permitting
leave to replead where court could "not determine that
the plaintiffs would not, under any circumstances, be able to
allege a civil RICO conspiracy"). An opportunity to
amend is not required, however, where "the problem with
[the plaintiff's] causes of action is substantive"
such that "better pleading will not cure it."
Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000);
see also Cortec Indus. Inc. v. Sum Holding L.P., 949
F.2d 42, 48 (2d Cir. 1991) ("Of course, where a
plaintiff is unable to allege any fact sufficient to support
its claim, a complaint should be dismissed with
prejudice."). Stated differently, "[w]here it
appears that granting leave to amend is unlikely to be
productive, . . . it is not an abuse of discretion to deny
leave to amend." Ruffolo v. Oppenheimer &
Co., 987 F.2d 129, 131 (2d Cir. 1993); accord, Brown
v. Peters, No. 95-CV-1641, 1997 WL 599355, at *1
(N.D.N.Y. Sept. 22, 1997) (Pooler, J.).
instance, plaintiff has been granted leave to replead and was
specifically informed of the fact that the DOT regulations at
issue do not provide a private right of action. Plaintiff has
nonetheless submitted an amended complaint basing her claims
on those same regulations.
since plaintiff has once been given an opportunity to amend
her complaint but has failed to state a cognizable claim, I
recommend that ...