Opinion
6:19-CV-00029 (MAD/TWD)
01-14-2019
COURTNEY SANDERS, Plaintiff, v. FOCUS REHAB NURSING, Defendant.
APPEARANCES: COURTNEY SANDERS Plaintiff pro se 4 Newell Street. Apt. 1 Utica, New York 13502
APPEARANCES: COURTNEY SANDERS
Plaintiff pro se
4 Newell Street. Apt. 1
Utica, New York 13502 THÉRÈSE WILEY DANCKS, United States Magistrate Judge
ORDER AND REPORT-RECOMMENDATION
The Clerk has sent the complaint of pro se Plaintiff Courtney Sanders against her former employer, Defendant Focus Rehab Nursing ("Focus Rehab"), to the Court for initial review. (Dkt. No. 1.) The complaint is on a federal court form labeled civil rights complaint pursuant to 42 U.S.C. § 1983. Id. Also before the Court is Plaintiff's application to proceed in forma pauperis ("IFP application"). (Dkt. No. 2.)
I. 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 IP application, the Court finds that she meets this standard. Therefore, Plaintiff's IFP application (Dkt. No. 2) is granted.
II. LEGAL STANDARDS FOR INITIAL REVIEW
Even when a plaintiff meets the financial criteria for in forma pauperis, 28 U.S.C. § 1915(e) directs that when a plaintiff proceeds in forma pauperis, "the court shall dismiss the case at any time if the court 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)(i)-(iii).
In determining whether an action is frivolous, the 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). "An action is frivolous when either: (1) the factual contentions are clearly baseless such as when the claims are the product of delusion or fantasy; or (2) the claim is based on an indisputably meritless legal theory." Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998) (citations and internal quotation marks omitted). Although extreme caution should be exercised in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and the parties have had an opportunity to respond, Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983), the court still has a responsibility to determine that a claim is not frivolous before permitting a plaintiff to proceed. See, e.g., Thomas v. Scully, 943 F.2d 259, 260 (2d Cir. 1991) (per curiam) (holding that a district court has the power to dismiss a complaint sua sponte if the complaint is frivolous).
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). While 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." Id. 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). "[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.
Where a plaintiff proceeds pro se, the pleadings must be read liberally and construed to raise the strongest arguments they suggest. Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008) (citation omitted). A pro se complaint should not be dismissed "without giving leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated." Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999) (citation and internal quotation marks omitted). An opportunity to amend is not required 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).
III. COMPLAINT
Plaintiff alleges that on March 31, 2017, at the end of her shift as a certified nurse's aide, she was notified by her former employer, Defendant Focus Rehab, that she had been accused of resident abuse. (Dkt. No. 1 at 2.) Plaintiff received a phone call from Defendant at 3:30pm informing her she had been put on suspension until an investigation of the alleged abuse had been completed. Id. Plaintiff claims that Focus Rehab attempted to convince her to resign her position at the facility during her suspension. Id. Plaintiff alleges that because she refused to resign, Focus Rehab was required to continue to pay her lost wages during the suspension under the 1199 SEIU union contract. Id. at 2-3.
Page references to documents identified by docket number are to the numbers assigned by the CM/ECF docketing system maintained by the Clerk's Office.
Plaintiff also alleges that Focus Rehab attempted to settle with her for $3,000.00 and her resignation while the investigation was ongoing, and she declined because she believed the monetary offer to be unfair. Id. at 3. On June 9, 2017, while the investigation remained ongoing, Plaintiff was informed by her employer that her last day of work was March 31, 2017, the date on which she had been told of the abuse claim and placed on suspension. Id. Plaintiff asked the New York State Attorney General's Office and the New York State Department of Health for an update on the investigation on August 30, 2017, and was told it was ongoing. Id. at 3.
According to Plaintiff, she discussed the situation with her union representative, filed a grievance, and made a complaint to the New York State Human Rights Division ("NYSHRD"). There are no allegations in the complaint regarding the details, status, or outcome of Plaintiff's grievance and NYSHRD complaint, and Plaintiff has failed to identify specific legal claims she is asserting against Defendant or identify the relief she is seeking against the Defendant. Id. at 4-5.
IV. ANALYSIS
A. Civil Rights Claim under 42 U.S.C. § 1983
Because Plaintiff utilized a form for a civil rights complaint pursuant to 42 U.S.C. § 1983 the Court has considered whether she has alleged facts in her complaint plausibly stating a claim under § 1983.
To state a claim under § 1983, a plaintiff must allege that a defendant violated the plaintiff's federal constitutional or statutory rights while acting under color of state law. Washington v. County of Rockland, 373 F.3d 310, 315 (2d Cir. 2004). "[P]rivate conduct, no matter how discriminatory or wrongful, is not controlled by § 1983." Am. Mfrs. Mut, Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999). A private actor can be found to act under color of state law for purposes of § 1983 when "(1) the State compelled the conduct, (2) there is a sufficiently close nexus between the State and the private conduct, or (3) the private conduct consisted of activity that has traditionally been the exclusive prerogative of the State." Hogan v. A.O. Fox Memorial Hosp., 346 F. App'x 627, 628 (2d Cir. 2009) (citing Sybalski v. Indep. Group Home Living Program, Inc., 546 F.3d 255, 257 (2d Cir. 2008). "The fundamental question under each test is whether the private [actor's] challenged actions are 'fairly attributable' to the state." Fabrikant v. French, 691 F.3d 193, 207 (2d Cir. 2012) (quoting Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982).
The pivotal issue with regard to Plaintiff's § 1983 claims against Focus Rehab is whether the Defendant was a state actor in connection with Plaintiff's allegations against it. Plaintiff's complaint is devoid of allegations suggesting Focus Rehab was a state actor for purposes of her complaint. Furthermore, even if Focus Rehab were a state actor for purposes of this case, Plaintiff's complaint contains no factual allegations plausibly showing that Focus Rehab violated any of Plaintiff's federal constitutional or statutory rights in the actions taken by it with regard to her employment. Therefore, Plaintiff cannot be found to have stated a claim under § 1983.
Focus Rehab is identified at https:healthcarecomps.com/nursing-homes/ny/335794/ as a "For profit - Individual, Medicare Certified, nursing home operating with 118 residents and 120 certified beds. It's legal business name (LBN) is UCRN LLC." See also https:opengovus/npi/105384001. Focus Rehab was taken over by Centers Health Care in January of 2018. See https:/centershealthcare.com/news/entry/center-health-care-welcomes-oneida-center-to-the-family.html. (sites last visited on January 14, 2019).
B. Employment Discrimination
Because Plaintiff's complaint involves termination of her employment, and she has alleged filing a complaint with the NYSHRD, the Court has also considered whether Plaintiff has stated a claim for employment discrimination under federal law.
Plaintiff has alleged no facts regarding the nature or status of NYSHRD claim. She has not alleged any facts plausibly showing the termination of her employment involved discrimination on the basis of "race, color, religion, sex, or national origin . . ." under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-2(a) ("Title VII"). Nor has Plaintiff alleged any facts plausibly showing or employment discrimination based on disability in violation of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12112 to 12117, or age under the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 623. Rather, Plaintiff has alleged only that her suspension and subsequent discharge resulted from a complaint of patient abuse made against her. (Dkt. No. 1 at 2.)
The Court notes that administrative exhaustion with the Equal Employment Opportunity Commission is an essential element of Title VII, ADA, and ADEA employment discrimination claims and, as such, is a precondition to bringing employment claims in federal court. See Tanvir v. N.Y.C. Health & Hosps. Corp., 480 F. App'x 620, 621 (internal quotation marks and citation omitted); Concepcion v. Continuum of Care, No. 3:17-CV-1854 (VLB), 2018 WL 6529178, at *6 (D. Conn. Dec. 12, 2018); Crosby v. McDonald's of Guilderland, LLC, No. 1:17-CV-1160 (MAD/DEP), 2018 WL 2077884, at *3 (N.D.N.Y. May 2, 2018) (the ADA incorporates the administrative exhaustion requirements of Title VII). Administrative exhaustion is not, however, a jurisdictional requirement; rather a precondition of suit subject to equitable defenses such as waiver. See Fowlkes v. Ironworkers Local 40, 790 F.3d 378, 384 (2d Cir. 2015).
Based upon the foregoing, Plaintiff cannot be found to have stated a claim for employment discrimination under Title VII or the ADA.
V. CONCLUSION
The Court finds that Plaintiff's complaint fails to state a claim. However, cognizant of the special latitude to be given to pro se litigants, the Court recommends that Plaintiff be given an opportunity to amend her complaint. See Webb v. Bermudez, No. 92 Civ. 7305 LAKRLE, 1996 WL 599673, at *1 (S.D.N.Y. Oct. 17, 1996) (citing Salahudin v. Harris, 782 F.2d 1127, 1132 (2d Cir. 1986) for the proposition that "dismissal against pro se litigants should be granted only then they deliberately frustrate the process, not when they do so through a misunderstanding.").
The Court cannot ascertain from the sparse allegations in the complaint whether Plaintiff may have legally cognizable claims for breach of employment contract claim against Defendant or under the union contract referenced in the complaint or, if so, there would be federal jurisdiction over those claims.
Copies of all unpublished decisions cited herein will be provided to Plaintiff in accordance with LeBron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Therefore, the Court recommends that Plaintiff be allowed thirty (30) days from the filing of the District Court Order on this Report-Recommendation to submit an amended complaint for initial review by the Court, and that in the event the Plaintiff fails to do so, the action be dismissed with prejudice at the end of the thirty (30) day period. Any amended complaint must be a complete pleading that supercedes the original complaint in all respects and does not incorporate by reference any portion of the original complaint.
ACCORDINGLY, it is hereby
ORDERED that Plaintiff's IFP Application (Dkt. No. 2) is GRANTED;
RECOMMENDED that Plaintiff be granted thirty (30) days from the date of the District Court's Order on this Report-Recommendation to submit an amended complaint for initial review by this Court; and it is further
RECOMMENDED that if Plaintiff fails to submit an amended complaint for review as of the expiration of the thirty (30) days granted her to do so, her complaint (Dkt. No. 1) be DISMISSED WITH PREJUDICE on initial review under 28 U.S.C. § 1915(e); and it is hereby
ORDERED that the Clerk provide Plaintiff with a copy of this Order and Report-Recommendation, along with copies of the unpublished decisions cited herein in accordance with the Second Circuit 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. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. Dated: January 14, 2019
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. 6(a)(1)(C).
Syracuse, New York
/s/_________
Thérèse Wiley Dancks
United States Magistrate Judge