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Profitt v. Freedman

United States District Court, N.D. New York

January 10, 2018

DONNA PROFITT, Plaintiff,
v.
DR. DONALD S. FREEDMAN, et al., Defendants.

          FOR PLAINTIFF: DONNA PROFITT, Pro Se .

          FOR DEFENDANTS: NONE

          REPORT AND RECOMMENDATION

          DAVID E. PEEBLES CHIEF U.S. MAGISTRATE JUDGE

         This is 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 replead.

         I. BACKGROUND

         Plaintiff 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.

         Plaintiff's 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.[1]

         On 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.

         II. DISCUSSION

         Plaintiff's 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.

         Plaintiff's 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.

         As was 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.).

         In this 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.

         Accordingly, since plaintiff has once been given an opportunity to amend her complaint but has failed to state a cognizable claim, I recommend that ...


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