Opinion
1:21-CV-621 (DNH/TWD)
10-12-2021
MAKETA S. JOLLY, Plaintiff, v. EXCELSIOR COLLEGE, MARY LEE POLLARD, LAURA BALDWIN JUFFA, JOANNE LEONE, PHILLIS MITCHELL, JOHN HERMINA, Defendants.
MAKETA S. JOLLY Plaintiff, pro se
MAKETA S. JOLLY Plaintiff, pro se
ORDER AND REPORT RECOMMENDATION
Therese Wiley Dancks United States Magistrate Judge
On May 31, 2021, Maketa S. Jolly (“Plaintiff”) filed a complaint against Excelsior College in the United States District Court for the Eastern District of New York. (Dkt. No. 1.) The Honorable Pamela K. Chen, United States District Judge, transferred the entire action to this District. (Dkt. No. 2.) Thereafter, Plaintiff filed an amended complaint and an application to proceed in forma pauperis. (Dkt. No. 5 (the amended complaint); Dkt. No. 7 (the “IFP Application”).) The amended complaint asserts claims against Excelsior College and added claims against Mary Lee Pollard (“Pollard”), Laura Baldwin Juffa (“Juffa”), Joanne Leone (“Leone”), Phillis Mitchell (“Mitchell”), and John Hermina (“Hermina”) (collectively “Defendants”) in their individual capacities. (Dkt. No. 5.)
With respect to her IFP Application, a court may grant in forma pauperis status if a party “is unable to pay” the standard fee for commencing an action. 28 U.S.C. § 1915(a)(1). After reviewing Plaintiff's IFP Application (Dkt. No. 7), the Court finds Plaintiff meets this standard. Therefore, her IFP Application is granted.
Where, as here, a Plaintiff's IFP Application is granted, 28 U.S.C. § 1915(e) directs that “the court shall dismiss the case at any time if [it] determines that . . . the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). To determine whether an action is frivolous, a court must look to see whether the complaint “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). To survive dismissal for failure to state a claim, a complaint must plead enough facts to state a claim that is “plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In determining whether a complaint states a claim upon which relief may be granted, “the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted).
A pro se litigant's pleadings are held to a less strict standard than attorney drafted pleadings. See Fed. Express Corp. v. Holowecki, 552 U.S. 389, 402 (2008) (“Even in the formal litigation context, pro se litigants are held to a lesser pleading standard than other parties.”). Where, as in this case, a plaintiff is proceeding pro se, the court construes his pleadings “to raise the strongest arguments that they suggest.” See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 475 (2d Cir. 2006) (per curiam) (internal quotation marks omitted). However, this “does not exempt a [pro se litigant] from compliance with relevant rules of procedural and substantive law.” Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983).
Turning to Plaintiff's amended complaint, she generally asserts that Pollard, who was the “Dean of Nursing” at Excelsior College, transmitted false information about her academic record to state boards of nursing in 2018. (Dkt. No. 5 at 3.) Specifically, Plaintiff claims Excelsior College-through Pollard-violated its stated privacy policies and disseminated a “Cease and Desist” letter regarding Plaintiff's academic achievements. Id. at 18. The impact of Excelsior's actions, according to Plaintiff, denied her access to become a nurse in Vermont and resulted in disciplinary action against her in New Jersey.
She asserts that Leone, who is allegedly the Executive Director of the New Jersey Nursing Board, worked in concert with Excelsior College and illegally disseminated information regarding Plaintiff's nursing credentials. Id. at 4-5. Plaintiff alleges Leone assisted Excelsior College in defending against Plaintiff's claims in various court proceedings. Id. Moreover, she contends Leone was the architect of the New Jersey Board of Nursing's decision to initiate discipline against her. Id. To that end, Plaintiff claims Leone determined that her New Jersey Registered Nurse (“RN”) license was awarded in error and that she was only eligible for an “LPN” license. Id. at 4. Thereafter, on May 14, 2020, New Jersey initiated disciplinary procedures against Plaintiff to remove her RN license. Id. at 9. Plaintiff claims that, because she was not a New Jersey resident, New Jersey did not have jurisdiction to revoke her RN license. Id. at 5, 10.
With respect to Mitchell, Plaintiff claims she works for the Vermont Board of Nursing and improperly denied Plaintiff an opportunity to take the RN licensure examination. Id. at 14-15. Plaintiff asserts that Mitchell acted outside her authority and contrary to Vermont regulatory guidance and-like Leone-assisted Excelsior College in its litigation efforts against Plaintiff. Id. at 17.
In addition to the individuals who work for Excelsior College and the various state boards of nursing, Plaintiff sued two attorneys: Juffa and Hermina. Regarding Juffa, Plaintiff asserts she represented Excelsior College in litigation in 2014 and 2018, “against allegations made by former minority students who alleged misrepresentation, fraud, and violations of New York General Business Laws 349 and 350.” Id. at 11. Although it is not entirely clear, Plaintiff asserts that Juffa denied her rights associated with the First Amendment “through misleading documents and misrepresentations of facts” during the course of representing Excelsior College in litigation. Id. at 13. With respect to Hermina, from what the Court can glean, he was class-counsel for several actions against Excelsior College regarding its treatment of minority students. Id. at 18-19. According to Plaintiff, he never represented her, and she is now suffering from the legal impact of “general releases” allegedly “procured through fraudulent conduct that cited Plaintiff in an incorrect legal proceeding Shawanda et. al. v. Excelsior College 1:2017 cv 06263.” Id. at 19 (italics added).
In several places in her amended complaint, Plaintiff acknowledges this is not her first time asserting these claims in federal court. Indeed, on the first page of the amended complaint, Plaintiff acknowledges this action was “[p]reviously filed in the Eastern District of Pennsylvania and New York[.]” Id. at 1. Moreover, in reference to her previous case, Plaintiff asserts that United States District Judge David N. Hurd “scribed misleading and inappropriate remarks” and his previous judicial rendering was “biased” in adjudicating these very claims in a previous action. Id. at 19. That action was filed against Excelsior College, the State of Vermont Board of Nursing, and the State of New Jersey Board of Nursing, on May 21, 2019, in the Eastern District of Pennsylvania and subsequently transferred to this District Court thereafter. Jolly v. Excelsior Coll., No. 1:19-CV-1317, 2020 WL 3128535, at *3 (N.D.N.Y. June 12, 2020) (“Jolly I”), reconsideration denied, No. 1:19-CV-1317, 2020 WL 3606374 (N.D.N.Y. July 2, 2020) (“Jolly (reconsideration)”) appeal dismissed as frivolous, Order, No. 20-2162 (2d Cir. Mar. 11, 2021), ECF No. 163. In Jolly I, the Court granted Excelsior College's motion to dismiss on June 12, 2020. In that case, the Court carefully considered Plaintiff's allegations that “Excelsior conspired with the Vermont and Jersey boards to smear her reputation and prevent her from becoming an RN because she is an African American woman.” Jolly I, 2020 WL 3128535, at *4. Nevertheless, the Court found that none of her allegations supported a plausible legal claim and dismissed the complaint with prejudice.
The Court read Plaintiff's complaint to assert seven claims: (1) disclosure of personal information; (2) violation of 18 U.S.C. § 242 (“§ 242”); (3) conspiracy under 42 U.S.C. § 1985 (“§ 1985”); (4) discrimination under 42 U.S.C. § 2000e (“Title VII”); (5) Excelsior's violation of attorney-client privilege; (6) another Title VII claim; and (7) a defamation claim. Jolly I, 2020 WL 3128535, at *3. In its decision on Plaintiff's motion for reconsideration, the Court even considered whether she could have plausibly alleged a 42 U.S.C. § 1983 claim against Pollard in her individual capacity. See Jolly (reconsideration), 2020 WL 3606374, at *2.
It is apparent from the face of the amended complaint in this action that Plaintiff is attempting to re-litigate a putatively new set of claims from the exact same set of facts that formed the basis for her previous action. Given this conclusion, the Court must recommend finding that the amended complaint is barred by the doctrine of res judicata.
“Under the doctrine of res judicata, once a final judgment has been entered on the merits of a case, that judgment will bar any subsequent litigation by the same parties or those in privity with them concerning the transaction, or series of connected transactions, out of which the [first] action arose.” See Cieszkowska v. Gray Line New York, 295 F.3d 204, 205 (2d Cir. 2002) (quoting Maharaj v. Bankamerica Corp., 128 F.3d 94, 97 (2d Cir. 1997)) (internal quotation marks omitted) (alterations in original); accord Waldman v. Village of Kiryas Joel, 207 F.3d 105, 108 (2d Cir. 2000). In other words, later actions will be res judicata and subject to dismissal if “(1) the previous action involved an adjudication on the merits; (2) the previous action involved the [parties] or those in privity with them; [and] (3) the claims asserted in the subsequent action were, or could have been, raised in the prior action.” Pike v. Freeman, 266 F.3d 78, 91 (2d Cir. 2001) (quoting Monahan v. N.Y.C. Dep't of Corr., 214 F.3d 275, 284-85 (2d Cir. 2000)) (internal quotation marks omitted) (alterations in original).
Given that Jolly I ended with dismissal on the merits, the same actors were involved, and the claims that form the basis for this complaint were or could have been brought in the previous case, the doctrine of res judicata squarely bars this action. See Lopez v. Jet Blue Airways, No. 12-CV-0057, 2012 WL 213831, at *2 (E.D.N.Y. Jan. 24, 2012). To be sure, there are some differences in the two actions-most notably that she is suing Pollard, Leone, and Mitchell in their individual capacity-however, that difference does not alter the Court's conclusion. Critically, Plaintiff could have raised all the relevant facts and claims against those individuals in her action in 2019. Thus, the Court concludes that the amended complaint is nothing more than a re-dressing of the same facts in a new complaint-originally in a different court-to circumvent the previous dismissal. Accordingly, the Court recommends dismissing the amended complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
The Court notes that Hermina and Juffa were not named in the previous complaint or implicated in the merits of Plaintiff's claims. Indeed, Juffa was counsel of record for Excelsior College in Jolly I. However, the Court is at a loss for what-if any-claims Plaintiff asserts against these putative Defendants. The Court finds that Plaintiff's allegations against those Defendants are frivolous and recommends dismissing those individuals pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
Ordinarily, a pro se complaint should not be dismissed without leave to amend. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (quoting Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999) (other citation omitted). However, where, as here, better pleading could not cure the substantive defects in the complaint, repleading would be futile and should not be permitted. Therefore, the Court recommends dismissing the amended complaint without leave to amend.
WHEREFORE, it is hereby
ORDERED that Plaintiffs IFP Application (Dkt. No. 7) is GRANTED, and it is further
RECOMMENDED that Plaintiffs amended complaint (Dkt. No. 5) be DISMISSED WITHOUT LEAVE TO AMEND; and it is further
ORDERED that the Clerk serve a copy of this Order and Report-Recommendation on Plaintiff, along with a copy of the unpublished decisions cited herein in accordance with the Second Circuit's decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen 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 DAYS WILL PRECLUDE APPELLATE REVIEW Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec 'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed.R.Civ.P. 72, 6(a).
If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Order and Report-Recommendation was mailed to you to serve and file objections. Fed.R.Civ.P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed.R.Civ.P. 6(a)(1)(C).