United States District Court, N.D. New York
CAO-BOSSA Plaintiff, Pro Se.
DECISION AND ORDER
GLENN T. SUDDABY CHIEF UNITED STATES DISTRICT JUDGE.
before the Court, in this pro se civil rights action
filed by Weili Cao-Bossa (“Plaintiff”) asserting
an employment-discrimination claim against the Department of
Labor (DOL) and three of its employees
(“Defendants”) under Title VII of the Civil
Rights Act of 1962, as amended, 42 U.S.C. § 2000e,
et seq., is United States Magistrate Judge
Thérèse Wiley Dancks' Report-Recommendation
recommending that (1) Plaintiff be given leave to file an
Amended Complaint naming the New York State Department of
Labor as a defendant within thirty (30) days of the date of
filing of an Order by the Court on the Report-Recommendation,
and (2) at the expiration of the aforementioned thirty-day
period, Plaintiff's claim against Defendants Lindsay
Pulcher and Kathleen A. Elfeld be sua sponte
dismissed for failure to state a claim pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii). (Dkt. No. 5.) Plaintiff has not
filed an Objection to the Report-Recommendation, and the
deadline in which to do so has expired. (See
generally Docket Sheet.) Instead, Plaintiff has filed
what purports to be an “Amended Complaint.” (Dkt.
carefully reviewing the relevant papers herein, including
Magistrate Judge Dancks' thorough Report-Recommendation,
the Court can find no clear-error in the
Report-Recommendation. Magistrate Judge Dancks employed the
proper standards, accurately recited the facts, and
reasonably applied the law to those facts. As a result, the
Report-Recommendation is accepted and adopted in its entirety
for the reasons set forth therein, with the following
than wait for the Court to issue its Decision and Order on
the Report-Recommendation, Plaintiff has filed (before the
expiration of the deadline for an Objection to the
Report-Recommendation) a document entitled “Amended
Complaint.” (Dkt. No. 6.) This filing was premature.
For the sake of brevity, the Court will set aside the
inappropriateness of including a “Dear Judge”
note at the beginning of her Amended Complaint. (Id.
at 1.) More important is the prematurity of the
“Amended Complaint”: as the Second Circuit has
explained, “[t]he proper time for a plaintiff to move
to amend the complaint is when the plaintiff learns from the
District Court in what respect the complaint is deficient,
” because, “[b]efore learning from the court what
are its deficiencies, the plaintiff cannot know whether he is
capable of amending the complaint efficaciously.”
Cresci v. Mohawk Valley Cmty. College, 693 Fed.Appx.
21, 25 (2d Cir. 2017). Here, had Plaintiff waited for the
issuance of this Decision and Order, Plaintiff would have
learned of the futility of her “disagree[ment]”
with Magistrate Judge Dancks' finding that Plaintiff has
no actionable claim against Defendants Pulcher and Elfeldt
under Title VII, and she would not have wasted the time of
reasserting that claim against them in her Amended Complaint.
(Dkt. No. 6, at 2 [Plf.'s Am. Compl., stating, “I
disagree with your judgement [sic] with respect to dismiss
[sic] Lindsay Plucher [sic] and Kathleen Elfeldt”].)
had Plaintiff waited for the issuance of this Decision and
Order, she would have learned of the Court's
identification of an additional pleading defect in her
original Complaint: the fact that it fails to allege facts
plausibly suggesting what, if any, similarly situated
Caucasians were given advice by Defendants Pulcher and
Elfeldt on how to correct their assignments during the
two-year probationary period of their position as a senior
accountant trainee. (See generally Dkt. Nos. 1,
Plaintiff's correction of this pleading defect would have
narrowed the scope of, or maybe even obviated the need for,
Defendants' inevitable motion to dismiss this action for
failure to state a claim.
Plaintiff did not wait. As a result, her purported
“Amended Complaint” repeated the pleading defect
identified by Magistrate Judge Dancks in her claim against
Defendants Pulcher and Elfeldt, and neglected to correct the
pleading defect identified by the undersigned in her claim
against the New York State Department of Labor (i.e., the
defect regarding similarly situated individuals). (Dkt. No.
Plaintiff would be stuck with the consequences of her
“Amended Complaint.” However, here, she is not
stuck with those consequences for two alternative reasons.
First, the “Amended Complaint” is not signed.
(Dkt. No. 6.) As a result, it violates Fed.R.Civ.P. 11(a) and
N.D.N.Y. L.R. 10.1(c)(2). The relevant portion of
Fed.R.Civ.P. 11(a) provides that “[t]he court must
strike an unsigned paper unless the omission is promptly
corrected after being called to the . . . party's
attention.” The Court's internal notes on the
docket sheet indicate that, on May 22, 2018, the Clerk's
Office informed Plaintiff (by email) of the omissions of her
signature from her “Amended Complaint”; however,
to date, Plaintiff has not corrected that omission. (See
generally Docket Sheet.) Under the circumstances, the
“Amended Complaint” may be stricken. Second,
regardless of the omission of her signature, Plaintiff's
“Amended Complaint” does not state a viable claim
against any of the four Defendants named therein because
Plaintiff's Title VII claim is plagued by the two
pleading defects described above in this Decision and Order.
As a result, the “Amended Complaint” is subject
to sua sponte dismissal by the Court. 28 U.S.C.
§ 1915(e)(2)(B)(i)-(iii). Under the circumstances,
special solicitude warrants overlooking the consequences of
Plaintiff's haste (and ill-advised persistence in
pursuing a Title VII claim against individual Defendants).
that Magistrate Judge Dancks' Report-Recommendation (Dkt.
No. 5) is ACCEPTED and
ADOPTED in its entirety; and it is
that the Clerk of the Court shall
STRIKE Plaintiffs “Amended
Complaint” (Dkt. No. 6) from the docket; and it is
that the Clerk shall AMEND the
caption of this docket sheet so as to
REMOVE Ms. Daly and the Department
of Labor as Defendants; and it is further
that Plaintiffs Complaint (Dkt. No. 1) shall be
DISMISSED in its entirety, without
further notice of the Court, unless, within THIRTY
(30) DAYS of the date of this Decision and Order,
Plaintiff files a signed Amended Complaint that corrects the
pleading defects identified in the Report-Recommendation and
this Decision and Order; and it is further
that, should Plaintiff file a timely Amended Complaint, it
shall be referred to ...