United States District Court, N.D. New York
BITETTO PLAINTIFF PRO SE
REPORT-RECOMMENDATION AND ORDER
Christian F. Hummel U.S. Magistrate Judge
December 21, 2016, the undersigned granted plaintiff's in
forma pauperis application and recommended that
plaintiff's complaint be dismissed without prejudice and
with opportunity to amend, excepting plaintiff's claim
for monetary relief under Title III of the Americans with
Disabilities Act (“ADA”), which should be
dismissed with prejudice. Dkt. No. 4. The undersigned
recognized that it was unclear whether plaintiff could state
a claim under Title III as the question whether a website
could be considered “a place of public
accommodation” under that section was unclear,
“it is at least arguable that this Court, should it
reach the issue, could determine that the website can be
considered a place of public accommodation.”
Id. at 4-5. On December 27, 2016, plaintiff filed a
motion to amend the complaint. Dkt. No. 5. On January 27,
2017, Chief Judge Suddaby adopted the Report-Recommendation
and Order. Dkt. No. 6. On January 27, 2017, the Court
docketed plaintiff's amended complaint. Dkt. No. 7.
Presently pending before the undersigned is review of
plaintiff's Amended Complaint. Id.
amended complaint contends that his Quora.com account was
blocked and his “answers to questions on
Quora.com” were deleted “because of belief that I
was not who I said I was.” Dkt. No. 7 at 4. Plaintiff
also contends that defendants “have done this adverse
special treatment solely because I have stated in my
QUORA.COM profile that I am blind and also my professional
background (all truthfully stated.” Id.
Plaintiff indicates that he is “seeking injunctive
relief as set foruth [sic] in the American's [sic] with
Disabilities Act section Title III.” Id. at 5.
Plaintiff does not specify the injunctive relief that he is
amended complaint provides three separate reasons behind the
suspected “motivation” for defendants'
alleged adverse action: (1) defendants' apparent belief
that plaintiff “was not who [he] said [he] was”;
(2) that plaintiff is blind; and (3) plaintiff's
“professional background.” Dkt. No. 7 at 4-5. The
ADA does not protect against a person's professional
status. Thus, plaintiff may not maintain a claim under the
ADA for any discrimination he believes he may have received
due to his “professional status.” Similarly,
plaintiff's Amended Complaint fails to explain what he
means when he states that defendants discriminated against
him because they believed he was “not who [he] said
[he] was.” Dkt. No. 7 at 4-5. However, to the extent
plaintiff is arguing against what appears to be Quora's
policy of requiring users to use their full and correct
names, plaintiff fails to explain how such a policy would
violate the ADA. Dkt. No. 7 at 39. Moreover, in the
attachments to plaintiff's amended complaint, plaintiff
provides a print out which appears to be from Quora.com which
states that plaintiff's account was “blocked from
contributing to Quora because your name does not comply . . .
.” and that “if you are already using
your real name, please submit a moderation appeal . . .
.” Id. Another document attached to the amended
complaint appears to be a response from “Quora
Moderation” explaining there is “activity . . .
linked to you as ‘Anonymous' and not your real
identity and your anonymity hasn't been compromised. This
message is a warning that your anonymity privileges on Quora
may be revoked if there's no improvement in your
anonymous contributions.” Dkt. No. 7 at 38. It is
unclear whether this document is a “moderation
appeal.” Id. at 39. Plaintiff does not
indicate whether he submitted a “moderation
appeal” or the result of that appeal. Any
“discrimination” plaintiff may have faced due to
his failure to follow Quora's name policy, or Quora's
misunderstanding about his use of his name, would not fall
under ADA protections.
extent plaintiff is arguing that he was in full compliance
with Quora's “name policy, ” but that his
account was still blocked and that it was blocked because he
is blind, plaintiff offers no evidence that his blindness is
the reason defendants have blocked his account rather than
plaintiff's failure to comply with certain of Quora's
policies. Indeed, the papers plaintiff submits appended to
his complaint appear to indicate that certain privileges
relating to “anonymous” posting connected his
account were blocked due to his failure to comply with
certain Quora policies, and it is unclear whether plaintiff
followed such policies or completed Quora's appeal
process relating to the name policy issues. Dkt. No. 7 at
38-39. Although the pleading requirements at this stage are
not high, plaintiff's amended complaint cannot survive on
conclusory and unsupported allegations. Although Rule 8(a) of
the Federal Rules of Civil Procedure, which sets forth the
general rules of pleading, “does not require detailed
factual allegations, . . . it demands more than an unadorned,
the-defendant-harmed-me accusation.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). “[T]he tenet that
a court must accept as true all of the allegations contained
in a complaint is inapplicable to legal conclusions.”
Iqbal, 556 U.S. at 678. “Threadbare recitals
of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id.
plaintiff's complaint merely states that he seeks
“injunctive relief, ” but does not specify the
relief he seeks. Arguably, plaintiff may be requesting that
access to his Quora account be restored; however, the relief
he seeks is not specified. It is recommended that, should
plaintiff be permitted to file a second amended complaint,
such complaint be required to specify the injunctive relief
due to plaintiff's pro se status, it is
recommended that plaintiff's complaint be dismissed
without prejudice. However, it is recommended that plaintiff
be provided one final opportunity to amend his
complaint to (1) demonstrate that he was in compliance with
Quora's policies, and provide a nonconclusory argument
that any potential discrimination he faced relating to the
use of the website Quora.com was due to his blindness, and
(2) specify the injunctive relief that he is seeking.
Plaintiff is advised that, if the District Judge permits
plaintiff to file a Second Amended complaint, such complaint
is intended to completely replace the prior complaint in the
action, and thus it “renders [any prior complaint] of
no legal effect.” International Controls Corp. v.
Vesco, 556 F.2d 665, 668 (2d Cir. 1977), cert.
denied sub nom., Vesco & Co., Inc. v.
International Controls Corp., 434 U.S. 1014 (1978);
see also Shields v. Citytrust Bancorp, Inc., 25 F.3d
1124, 1128 (2d Cir. 1994). Therefore, any second amended
complaint must include all of the facts, allegations, claims,
and requests for relief against each defendant.
for the reasons stated herein, it is hereby
that plaintiff's amended complaint (Dkt. No. 7) be
DISMISSED in its entirety without prejudice
to providing plaintiff with a final opportunity to
file an amended complaint to cure the defects identified
above; and it is further
that if the District Judge adopts this Report-Recommendation
and Order in full, should plaintiff wish to proceed with this
action, he must file any second amended complaint within
thirty (30) days of the District Judge's Order adopting
of this Report-Recommendation and Order, and that, following
the District Judge's review of this Report-Recommendation
and Order, if a second amended complaint is filed, the Clerk
return this case to the Magistrate Judge for review of any
Second Amended Complaint; and it is,
ORDERED, that the Clerk of the Court serve a
copy of this Report-Recommendation and Order upon the
IS SO ORDERED.
to 28 U.S.C. § 636(b)(1), the parties have FOURTEEN (14)
days within which to file written objections to the foregoing
report. Such objections shall be filed with the Clerk of the
Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14)
DAYS WILL PRECLUDE APPELLATE REVIEW. See Roldan v.
Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing
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