Islam v. Melisa

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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MD. ASHIK ISLAM and MD. AMINUL ISLAM,

Plaintiffs,

MEMORANDUM & ORDER

v.

18-CV-2535(KAM)(LB)

DR. MELISA, Class Professor; PROFESSOR

TIM CORKERY, Speech Dep’t Coordinator;

MICHELLE SABIO, Int’l Counselor;

PROVOST PANAYIOTIS MELETIES; CITY

UNIV. OF NEW YORK (CUNY) – YORK

COLLEGE; NEW YORK CITY TRANSIT

AUTHORITY; MTA NEW YORK CITY TRANSIT;

VISA OFFICER/CONSULAR,

Defendants.

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KIYO A. MATSUMOTO, United States District Judge:

Plaintiff Ashik Islam (“Islam”) commenced this pro se

action against (1) the New York City Transit Authority (“NYCTA”)

and the Metropolitan Transit Authority (“MTA”) (the “Transit

Defendants”); (2) the City University of New York (“CUNY”) and

several CUNY employees, including “Dr. Melisa,” Professor Tim

Corkery (“Corkery”), Michelle Sabio (“Sabio”), and Provost

Panayiotis Meleties (“Meleties”), all in their official

capacities (the “CUNY Defendants”); and (3) a “Visa Officer” at

the U.S. Embassy in Dhaka, Bangladesh, in her official capacity.

Islam sought relief against these defendants for, respectively,

injuries he sustained in a subway accident, his inability to

secure a bachelor’s degree from CUNY, and the denial of his

request for a visa to enter the United States.

The Court previously dismissed Islam’s claims against

the Visa Officer based on the doctrine of consular non-

reviewability. The Transit Defendants now move (1) to amend

their answer and (2) to dismiss Islam’s claims as time-barred.

Certain CUNY Defendants, similarly, move to dismiss Islam’s

claims against them (1) as time-barred and (2) for failure to

state a claim upon which relief may be granted. For the reasons

set forth below, the Court GRANTS the defendants’ motions.

Background

The following facts are derived from Islam’s complaint

and opposition to the defendants’ motions, see Walker v. Schult,

717 F.3d 119, 122 n.1 (2d Cir. 2013) (“A district court deciding

a motion to dismiss may consider factual allegations made by a

pro se party in his papers opposing the motion.”), and are

accepted as true for purposes of this Memorandum and Order, see

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).

Islam studied pharmaceutical sciences at CUNY’s York

College from Fall 2008 through Fall 2013. (ECF No. 1, Complaint

(“Compl.”) at 5.) This action arises from injuries Islam

sustained in a subway accident during his last semester at CUNY

and the ensuing consequences. (See generally id.)

On September 15, 2013, Islam slipped and fell on a

“faulty” escalator at the Jamaica Van Wyck subway station in

Queens, New York. (Id.) Islam’s nail “came out” and began to

bleed, and he started to feel pain in his head, neck, both

shoulders, hip, left leg, and left knee. (Id.) Islam self-

medicated because he “was in too [much] pain that [he] could not

move even to visit any [d]octor and also [didn’t] ha[ve] enough

money after paying tuition fees for [the] Fall 2013 semester.”

(Id.) Islam “was in pain and suffered more than four months all

together.” (Id.)

Islam informed Dr. Melisa, his Speech 101 professor,

and Corkery, the Speech Department coordinator, of his accident.

(Id.) Islam claims that his injuries prevented him from

attending Speech 101 for roughly two months, though he

“submitted all [his] other course work assignment through e-

mail.” (Id.) As the Speech 101 exam approached, Islam reached

out to Corkery and stressed that as “an International Student

[on a student visa],” and because “Fall 2013 [was his] last

Semester, if [he] [got] a ‘F’ grade [in Speech 101], [he would]

have to take again 12 Credits for the following Semester.”

(Id.) Corkery advised Islam to appear for his final exam and

indicated he would “take care of it” and “do something

positively in favor of [Islam].” (Id.)

Islam communicated with Sabio, the International

Student Advisor, regarding his status in the United States.

(Id.) Islam audited for graduation in Fall 2013, but the

graduation ceremony would not take place until June 2014. (Id.)

Sabio advised Islam to leave the United States, noting that as

an international student, Islam could not remain in the country

for more than “30 days after auditing for [his] [g]raduation,”

presumably for visa-related reasons. (Id.) Sabio told Islam

that CUNY would mail his diploma to Bangladesh following the

graduation ceremony in June 2014. (Id.) Islam followed this

advice and left the United States for Bangladesh on January 24,

2014. (Id.)

Islam asserts that Sabio and Grace Ann Prescord

(“Prescord”) – an International Students Advisor who is not

named as a defendant – failed to properly “guide” him through

the “laws [and] rules of th[is] country” during his time at

CUNY. (ECF No. 37, Islam Opp. (“Opp.”), at 4.) These advisors

“never informed [Islam] about [how to handle] any medical

emergency situation.” (Id.) Nor did these advisors “guide[]

[Islam] about how to set up or plan[] for [his] credits so that

[he] did not have to take extra credits.” (Id.) This appears

to be a reference to the fact that Islam took 130 credits worth

of courses during his time at York College, above the 120

credits required by his degree program.

Prescord also admitted to Islam that, in 2008, she

erred by issuing Islam’s Form I-20 for only four years, rather

than for five years as she does for most international students.

(Id.) Islam does not specify when this conversation took place.

The opposition, however, indicates that Prescord made this

admission “when [Islam] had to renew [his] Form I-20 again to

maintain [his] F-1 status,” indicating that this conversation

took place during his time at CUNY. (See id.)

Upon returning to Bangladesh,1 Islam learned he had

failed Speech 101 and, as a result, CUNY could not award him a

bachelor’s degree. (Compl. at 6.) Islam contacted Meleties, a

CUNY Provost, and “explained [to] him the whole scenario,”

including the advice he received from Corkery that he should

appear for the final exam in Speech 101 and that Corkery would

“do something positively” in Islam’s favor. (Id.) After some

back and forth over email, Meleties, at Islam’s request, allowed

Islam to submit make-up assignments for Speech 101. (Id.)

Meleties told Islam to submit one ten-to-twelve-minute speech or

two five-minute speeches. (Id.) Islam “set up [his] speech on

[his] cell phone,” “uploaded it through [his] brother’s You Tube

account,” emailed it to Corkery, and informed Meleties of the

completion of the project. (Id.)

1 Islam dates (1) the events preceding his departure from the United States on

January 24, 2014 and (2) the most recent denial of a request for a B.S.

certificate on December 6, 2017. (Compl. at 5-6.) But Islam does not

provide dates for his post-departure interactions with Corkery or Meleties

regarding the submission of his make-up exam (see id. at 6), nor does Islam

date his later communications with Meleties regarding his re-admission to the

university and steps to obtain his degree. In a separate filing (ECF No. 27,

Letter from Islam), Islam attaches a number of exhibits, including his: (1)

York College transcript (id. at 3-5); (2) emails to Corkery dated August 26,

2014 and November 3, 2014 (id. at 6); and (3) emails to and from Meleties

dated from March 19, 2014 through December 7, 2017 (id. at 7-23).

Corkery reviewed Islam’s submission and advised Islam

that it was deficient, apparently because the submission

contained only audio data, with no picture of Islam. (See id.)

Islam responded that his cell phone did not have the capability

to record videos, that he “could not upload [his] picture”

because he “did not know how to do it,” and that no one told him

to include his picture with the speech. (See id.) Islam

“contacted [Provost Meleties] about [Corkery’s refusal to accept

the project as submitted by Islam].” (Id.) Like Corkery,

Meleties “rejected [Islam’s] request to accept [the online

submission].” (Id.) Islam did not receive an opportunity to

re-submit the speeches. (Opp. at 4.)

Islam continued to reach out to Meleties to discuss

the possibility of obtaining a bachelor’s degree. (See Compl.

at 6.) Meleties advised Islam to apply to be readmitted to CUNY

to complete the three course credits, presumably those he lost

by failing Speech 101. (Id.) Islam “applied [to CUNY] again as

an F-1 Student and got accepted.” (Id.) But the visa officer

who interviewed Islam at the United States Embassy in Dhaka,

Bangladesh “did not grant [him] an F-1 Visa.” (Id.) Islam’s

most recent interaction with CUNY occurred on December 6, 2017,

when Meleties again denied Islam’s request that CUNY award him a

bachelor’s degree. (Id. at 4.)

On January 17, 2018, Islam submitted complaints to (1)

the New York State Education Department, Office of College and

University Evaluation; (2) the U.S. Department of Education,

Office for Civil Rights (in New York and Washington, D.C.); and

(3) CUNY, Office of the General Counsel. (Id. at 6-7.) Islam

does not describe the grievances he lodged with each office, or

the resolution of said grievances. (See id.) Islam just states

that he “did not get yet any satisfactory reply from [those

offices].” (Id. at 7.)

Islam asserts that he is “jobless, lost [his] social

status and never will get an official job because [he] [doesn’t]

have Certificate of Bachelor or Master[’]s Degree and also

qualifying age,” and his “life is destroyed and became unstable

and miserable.” (Id. a 7.) Islam “spent 5 years in US for

education and [his] family has spent more than US $125,000.00

for [his] education but [he] ha[s] no career.” (Id.) Islam

argues that “CUNY-York College and [the other defendants] [are]

liable for everything” because “they discriminated [against]

[him] because [he is] from [a] 3rd [w]orld [c]ountry and

different race, color and religion.” (Compl. at 7.) Islam

seeks $2.5 million in damages, the issuance of his B.S. degree,

and a visa to enter the United States as relief. (Id. at 8.)

Procedural History

On April 26, 2018, Islam and his father, Aminul Islam,

filed this pro se action. (Id. at 1.) The pro se complaint is

unfortunately somewhat difficult to decipher, particularly

because it lists several purported causes of action, most of

which are not cognizable as claims:

Sections: 1983 and or Violation of: 1) Student Bill of

Rights 2) International Student’s Bill of Rights 3) Human

Rights 4) Equal Protection of the Law 5) Discrimination 6)

Negligence and Misguiding for Set-up Subjects/Credits on

Time Frame 6) Destroy Educational Life 7) Destroy Gov.

Official Job Service Opportunities 8) Destroy Non-

Gov./Private Official Job Service Opportunities and also 9)

Personal Injury Claim 10) Compensation from all Parties for

making my life Destroying, Unstable and Miserable.

(Id. at 4.) However, the complaint’s allegations appear to fall

into three distinct categories: (1) claims against the Transit

Defendants for injuries Islam sustained in his subway accident;

(2) claims against the CUNY Defendants for their decision not to

award Islam a bachelor’s degree; and (3) claims against the Visa

Officer for her denial of Islam’s request for a visa to return

to study in the United States. (See id. at 5.)

On September 18, 2018, Islam filed proof of service on

“City University of New York – York College,” “Michelle Sabio –

International Counselor,” “Provost Panayiotis Meleties – Vice

Counselor,” “Professor Tim Corkery – Speech Department

Coordinator,” and “Dr. Melisa – Class Professor.” (ECF No. 9,

Executed Summons.) The Attorney General of the State of New

York (the “AG”) subsequently entered an appearance on behalf of

some, but not all, of the aforementioned defendants:

•

CUNY - York College: York College, a senior college in

the CUNY system, is not a “legally cognizable entity

apart from CUNY.” Clissuras v. City Univ. of N.Y., 359

F.3d 79, 81 n.2 (2d Cir. 2004) (per curiam), cert.

denied, 543 U.S. 987 (2004). As CUNY is the sole proper

institutional state defendant in this action, the AG

appeared on its behalf, and the Court construes Islam’s

claims as against CUNY, not York College. Soloviev v.

Goldstein, 104 F. Supp. 3d 232, 240 (2015).

•

Dr. Melisa: Islam studied under two professors who could

qualify as “Dr. Melisa” in the 2013-14 academic year: Dr.

Melisa Jn. Pierre and Dr. Melissa Adeyeye. (ECF No. 36,

CUNY Defendants’ Motion to Dismiss (“CUNY Mot.”), at 1.)

Islam did not specify which professor he intended to sue,

so the AG did not appear on behalf of either. (Id.)2

•

Professor Corkery: The AG did not appear on behalf of

Corkery who passed away in 2015 and, consequently,

purportedly lacked capacity to be sued. (Id.)

On November 20, 2018, the Court reviewed Islam’s

complaint and issued a Memorandum & Order dismissing Islam’s

complaint in part. (ECF No. 14, Memorandum & Order (“M&O”).)

The Court dismissed Aminul Islam as a plaintiff for lack of

standing, as the complaint alleged no facts relating to Aminul

and did not suggest that Aminul could plead a plausible claim on

his own behalf. (Id. at 7-8 (citing Lujan v. Defenders of

Wildlife, 504, U.S. 555, 559-60 (1992)).) The Court also

dismissed the claims against the Visa Officer, named only to

2 A later filing by Islam appears to identify Melisa Jn. Pierre as the

professor Islam seeks to sue. (ECF No. 18, Opp. to PMC Request, at 5.)

challenge the denial of Islam’s visa, based on the doctrine of

consular non-reviewability. (Id. (citing Am. Acad. of Religion

v. Napolitano, 573 F.3d 115, 123 (2d Cir. 2009)).) The Court

denied leave to replead these claims as futile. (M&O at 10.)

On March 29, 2019, the Transit Defendants answered

Islam’s complaint.3 (ECF No. 24, Answer (“Ans.”).) The Transit

Defendants denied Islam’s allegations and asserted several

affirmative defenses. (See generally id.) The answer of the

Transit Defendants did not assert the statute of limitations as

a defense. (See id.)

On August 14, 2019, the Transit Defendants moved to

amend their answer to assert the statute of limitations as a

defense pursuant to Rule 15(a) of the Federal Rules of Civil

Procedure (the “Rules”) and for judgment on the pleadings

pursuant to Rule 12(c). (ECF No. 33, Transit Mot. to Dismiss

(“Transit Mot.”).) The CUNY Defendants who appeared in this

action – CUNY, Sabio, and Meleties – moved to dismiss Islam’s

3 Islam’s complaint names “New York City Transit Authority . . . and/or . . .

MTA, New York City Transit” as defendants in this action. (See Compl. at 1.)

As Islam elsewhere identifies the MTA as a defendant (see, e.g., Opp. at 3),

the Court liberally construes the complaint as against the MTA and its

affiliate agency, the NYCTA. Additionally, Islam’s filings sometimes name

the “NYC Comptroller” and “President,” in connection with the NYCTA and MTA,

respectively, as defendants in their “official capacit[ies].” (See, e.g.,

Compl. at 3.) To the extent Islam asserts official capacity claims against

these individuals, they are redundant and fail for the same reasons as those

against the NYCTA and MTA. See, e.g., Anemone v. Metro. Transp. Auth., 410

F. Supp. 2d 255, 264 n.2 (S.D.N.Y. 2006) (“An official-capacity suit is . . .

to be treated as a suit against the entity. . . . Where, as here, the entity

also is named as a defendant, the official capacity claims are redundant and

are properly dismissed.” (internal quotation marks and citation omitted)).

claims as time-barred and for failure to state a claim pursuant

to Rule 12(b)(6). (CUNY Mot.) Islam filed a joint opposition

to both motions, but his memorandum merely repeated the facts

alleged in his complaint, with some minor factual enhancement,

and cited no law in support of his opposition. (See generally

Opp.) The defendants filed replies shortly thereafter. (ECF

No. 39, Transit Reply; ECF No. 40, CUNY Reply.)

Standard of Review

The same standard governs Rule 12(b)(6) motions to

dismiss and Rule 12(c) motions for judgment on the pleadings.

Walker v. Sankhi, 494 F. App’x 140, 142 (2d Cir. 2012) (citing

L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 429 (2d Cir.

2011)). To survive either motion, “a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim

to relief that is plausible on its face.’” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). A

claim is plausible “when the plaintiff pleads factual content

that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Id. The court

“accept[s] as true all factual allegations and draw[s] from them

all reasonable inferences; but [the court need not] credit

conclusory allegations or legal conclusions couched as factual

allegations.” Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014)

(internal quotation marks omitted). “Accordingly, ‘[t]hreadbare

recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.’” Id. (quoting Iqbal,

556 U.S. at 678).

Pro se litigants receive more leeway, and a court

reviewing a pro se pleading must construe it as raising the

strongest arguments it suggests. McEachin v. McGuinnis, 357

F.3d 197, 200 (2d Cir. 2004) (citing Weinstein v. Albright, 261

F.3d 127, 132 (2d Cir. 2001)). But this does not excuse pro se

litigants from compliance with “relevant rules of procedural and

substantive law.” Castro v. Simon, No. 17-CV-6083 (AMD) (LB),

2019 WL 136692, at *3 (E.D.N.Y. Jan. 7, 2019) (citing Bell v.

Jendell, 980 F. Supp. 2d 555, 559 (S.D.N.Y. 2013)). The

reviewing court “need not argue a pro se litigant’s case nor

create a case for the pro se which does not exist.” Id. And,

as in any action, the reviewing court must dismiss a pro se

complaint which fails to satisfy a pleading requirement. Id.

Discussion

Islam’s complaint cites various purported causes of

action, most not cognizable or more appropriately characterized

as claims for damages. (See, e.g., Compl. at 7 (bringing claims

for violation of “student bill of rights,” “international

student bill of rights,” and unspecified “human rights”). The

thrust of Islam’s complaint, however, is that the Transit

Defendants negligently caused his accident, and that the CUNY

Defendants discriminated against him in connection with his

failed attempts to secure a bachelor’s degree. As set forth

below, the Court construes Islam’s complaint as alleging (1)

negligence by the Transit Defendants and (2) discrimination by

the CUNY Defendants.

I. Transit Defendants

Islam alleges that the Transit Defendants’ negligence

caused his September 15, 2013 subway accident. The Court

construes this allegation as a negligence claim against the

Transit Defendants under New York law. The Transit Defendants

move (1) under Rule 15(a) to amend their answer to assert the

statute of limitations as an affirmative defense and (2) under

Rule 12(c) for judgment on the pleadings on the grounds that any

claim Islam seeks to assert against the Transit Defendants is

procedurally barred by the statute of limitations. (Transit

Mot. at 1.) The Court grants both motions.

a. Motion to Amend

The Transit Defendants move under Rule 15(a) for leave

to amend their answer to assert a statute of limitations

defense. A party may seek leave to amend its answer to include

an omitted defense, which “[t]he court should freely give . . .

when justice so requires.” Fed. R. Civ. P. 15(a)(2); see also,

e.g., Block v. First Blood Assocs., 988 F.2d 344, 351 (2d Cir.

1993) (holding that court did not abuse its discretion in

granting defendants leave to amend their answer to include a

statute of limitations defense); Affiliated FM Ins. Co. v.

Liberty Mech. Contractors, Inc., No. 12-CV-5160 (KPF), 2013 WL

4526246, at *8 (S.D.N.Y. Aug. 27, 2013) (granting motion to

amend answer to assert statute of limitations as a defense).

“‘The rule in this Circuit has been to allow a party

to amend its pleadings in the absence of a showing by the

nonmovant of prejudice or bad faith.’” AEP Energy Servs. Gas

Holding Co. v. Bank of Am., N.A., 626 F.3d 699, 725 (2d Cir.

2010) (quoting Block, 988 F.2d at 350). In determining whether

an amendment would prejudice the plaintiff, courts consider

whether amending the answer to assert a statute of limitations

defense would: “(i) require the opponent to expend significant

additional resources to conduct discovery and prepare for trial;

(ii) significantly delay the resolution of the dispute; or (iii)

prevent the plaintiff from bringing a timely action in another

jurisdiction.” Block, 988 F.2d at 350. “Mere delay . . .

absent a showing of bad faith or undue prejudice, does not

provide a basis for a district court to deny the right to

amend.” State Teachers Retirement Bd. v. Fluor Corp., 654 F.2d

843, 856 (2d Cir. 1981).

Granting the Transit Defendants’ motion would not

prejudice Islam: the parties have expended no time or effort on

discovery to date; the disposition of the case will not be

delayed if the Transit Defendants’ motion is granted, and may

even be hastened by the application of a legitimate defense; and

Islam has not shown that he could have brought his claims in

another forum if the Transit Defendants had raised the statute

of limitations earlier. See, e.g., Foman v. Davis, 371 U.S.

178, 182 (1962); Block, 988 F.2d at 350. Furthermore, given

Islam’s delay in bringing this action and the corresponding

likelihood that the statute of limitations would apply,

amendment would not be futile. The motion to amend is granted.

See Affiliated FM, 2013 WL 4526246 (collecting cases).4

b. Motion for Judgment on the Pleadings

The Transit Defendants move for judgment on the

pleadings under Rule 12(c) on the grounds that Islam (1) filed

his claims outside the applicable statute of limitations and (2)

failed to comply with New York’s notice-of-claim requirements.

See N.Y. Pub. Auth. Law § 1212(2) (“[A]n action against the

[NYCTA] founded on tort shall not be commenced more than one

year and ninety days after the happening of the event upon which

the claim is based, nor unless a notice of claim shall have been

4 Indeed, the Court could sua sponte consider the statute of limitations even

without the requested amendment. See, e.g., Walters v. Indus. & Commercial

Bank of China, Ltd., 651 F.3d 280, 293 (2d Cir. 2011) (holding that a

district court may dismiss an action sua sponte on limitations grounds when

“the facts supporting the statute of limitations defense are set forth in the

papers plaintiff himself submitted” (internal quotation marks omitted));

Milan v. Wertheimer, 808 F.3d 961, 963–64 (2d Cir. 2015) (per curiam)

(affirming sua sponte dismissal of claims based on statute of limitations).

served on the authority within the time limited, and in

compliance with all the requirements of section fifty-e of the

general municipal law.” (emphasis added)); id. § 1276(2)

(setting forth same restrictions for suits against the MTA).

Both arguments have merit.

First, Islam did not file this action within the

applicable statute of limitations. “Where, as here, a federal

court exercises diversity jurisdiction over a claim, that court

‘applies the forum state’s statute of limitations provisions.’”

Wang v. Palmisano, 157 F. Supp. 3d 306, 318 (S.D.N.Y. 2016)

(quoting Vincent v. Money Store, 915 F. Supp. 2d 553, 562

(S.D.N.Y. 2013)); see also Schermerhorn v. Metro. Transp. Auth.,

156 F.3d 351, 354 (2d Cir. 1998). New York law requires that a

plaintiff commence an action “founded on tort” against the MTA

or NYCTA no “more than one year and ninety days” after accrual.

N.Y. Pub. Auth. Law § 1212(2) (NYCTA), id. § 1276(2) (MTA).

Islam’s claim accrued on September 15, 2013, the date

of his accident. Celli v. Metro-North Commuters R.R., 891 F.

Supp. 124, 126 (S.D.N.Y. 1995) (citing Triangle Underwriters,

Inc. v. Honeywell, Inc., 604 F.2d 737, 744 (2d Cir. 1979)).

Yet, Islam waited over four years, until April 26, 2018, to

commence this action. Islam provides no basis for equitably

tolling his claims. See, e.g., Abbas v. Dixon, 480 F.3d 636,

642 (2d Cir. 2007) (“Under New York law, the doctrines of

equitable tolling or equitable estoppel may be invoked to defeat

a statute of limitations defense when the plaintiff was induced

by fraud, misrepresentations or deception to refrain from filing

a timely action.” (internal quotation marks omitted)); Vincent

v. Money Store, 915 F. Supp. 2d 553, 562 (S.D.N.Y. 2013)

(stating that a federal court sitting in diversity applies forum

state’s provisions that govern tolling of statute of limitations

(citing Diffley v. Allied–Signal, Inc., 921 F.2d 421, 423 (2d

Cir. 1990))).

Thus, Islam’s claims against the Transit Defendants

are time-barred and must be dismissed. Lomto Fed. Credit Union

v. Dumont, 116 N.Y.S.3d 488 (Table) (Sup. Ct. 2019) (finding a

plaintiff’s cause of action for negligence against the MTA,

which is controlled by a one-year-and-ninety-day statute of

limitations, time-barred); Bowers v. City of New York, 61

N.Y.S.3d 190 (Table) (Sup. Ct. 2015), aff’d, 47 N.Y.S.3d 409

(App. Div. 2017) (“The statute of limitations for negligence

actions brought against the NYCTA is one year and 90 days.”).

Second, Islam did not satisfy New York’s notice-of-

claim requirements. “[I]n a federal court, state notice-of-

claim statutes apply to state-law claims.” Hardy v. New York

City Health & Hosp. Corp., 164 F.3d 789, 793 (2d Cir. 1999)

(citing Felder v. Casey, 487 U.S. 131, 151 (1988)). “Under New

York law, a suit can only be brought against a municipal

corporation if a notice of claim, complying with the New York

General Municipal Law § 50-e, is served.” Canete v. Metro.

Transportation Auth., No. 17-CV-3961 (PAE), 2018 WL 4538897, at

*8 (S.D.N.Y. Sept. 20, 2018). This requirement applies to

actions against the NYCTA and MTA. D’Antonio v. Metro. Transp.

Auth., No. 06-CV-4283 (KMW), 2008 WL 582354, at *6 (S.D.N.Y.

Mar. 4, 2008) (citing N.Y. Pub. Auth. Law § 1212(2) (NYCTA); id.

§ 1276(2) (MTA)). “The notice of claim must set forth, inter

alia, the nature of the claim, and must be filed within ninety

days of when the claim arises.” Id. at *6, n.11 (citing N.Y.

Gen. Mun. Law § 50–e).

“The plaintiff bears the burden of demonstrating

compliance with the notice of claim requirement.” Chabot v.

Cty. of Rockland, New York, No. 18-CV-4109 (KMK), 2019 WL

3338319, at *9 (S.D.N.Y. July 25, 2019) (citing Rattner v.

Planning Comm’n of Vill. of Pleasantville, 548 N.Y.S.2d 943, 948

(App. Div. 1989)). “Failure to comply with [the notice-of-

claim] requirements ordinarily requires a dismissal for failure

to state a cause of action.” Hardy, 164 F.3d at 794 (citing

Brown v. Metropolitan Transport. Auth., 717 F. Supp. 257, 259

(S.D.N.Y. 1989)); see also Groves v. N.Y. City Transit Auth.,

843 N.Y.S.2d 452, 453 (App. Div. 2007) (“Timely service of a

notice of claim is a condition precedent to the commencement of

an action sounding in tort against the [NYCTA] [and] [MTA.]”).

Islam does not allege that he served the MTA and/or

the NYCTA with notice of his claim in accordance with state law.

Nor does Islam make a request for an extension of time to file a

notice of claim which, even if made, could not be granted by

this Court. Humphrey v. County of Nassau, No. 06-CV-3682, 2009

WL 875534, at *21 (E.D.N.Y. Mar. 30, 2009) (noting that “the

overwhelming weight of authority among district courts in the

Second Circuit” finds that “only certain state courts” may

“consider and . . . grant an application for an extension of

time [to file a notice of claim]”). Islam’s claims are,

therefore, also barred for failure to comply with New York’s

notice-of-claim requirement. See, e.g., Chabot, 2019 WL

3338319, at *9 (dismissing claims for failure to comply with

notice-of-claim requirement); Canete, 2018 WL 4538897, at *8

(dismissing, in part, negligence claims against MTA for failure

to comply with notice-of-claim requirements).

II. CUNY Defendants5

Islam challenges the CUNY Defendants’ decision not to

issue him a bachelor’s degree because he failed Speech 101,

despite being aware of Islam’s plight during the Fall 2013

semester. The complaint makes the conclusory allegation that

the CUNY Defendants’ conduct resulted from discrimination

5 The legal analysis concerning Islam’s claims against Sabio and Meleties

applies with equal force to his claims against Corkery and “Dr. Melisa.”

founded upon Islam’s race, national origin, and religion.6 The

Court construes Islam’s complaint as bringing a claim against

CUNY for discrimination under Title VI of the Civil Rights Act

of 1964, 42 U.S.C. 2000d et seq. (“Title VI”) and a claim

against the CUNY employees for a violation of Islam’s right to

equal protection under 42 U.S.C. § 1983.7 The CUNY Defendants

who have appeared in this action move to dismiss Islam’s so-

6 Islam also apparently intends to sue the CUNY Defendants for “negligence and

misguiding for set-up subjects/credits on time frame.” (Compl. at 4.) There

are several problems with this claim. First, to the extent Islam seeks to

bring a negligence claim on this basis – or based on anything which occurred

during his time at CUNY – his claim is barred; it was filed outside the

three-year statute of limitations for negligence claims. Spinnato v. Unity

of Omaha Life Ins. Co., 322 F. Supp. 3d 377, 391 (E.D.N.Y. 2018) (citing N.Y.

C.P.L.R. § 214; Chase Sci. Research Inc. v. NIA Grp. Inc., 96 N.Y.2d 20, 30–

31 (2001)); Kampuries v. Am. Honda Motor Co., 204 F. Supp. 3d 484, 490

(E.D.N.Y. 2016). Second, to the extent Islam might seek to assert that post-

departure events give rise to a timely claim for negligence – those being

limited to his recent conversations with Meleties – he provides no support

for any duty which CUNY or Meleties would owe him or any injury allegedly

caused by CUNY or Meleties’ negligence during this period. Compare Gani v.

State, 988 N.Y.S.2d 411, 423 (Ct. Cl. 2014). Finally, the Court need not

decide whether Islam must bring a negligence claim against CUNY in the Court

of Claims. See Gerrish v. State Univ. of N.Y. at Buffalo, 12 N.Y.S.3d 703,

705 (App. Div. 2015); McGuinness v. N.Y. State Workers’ Comp. Bd., 41 A.D.3d

557 (N.Y. App. Div. 2007).

7 The Court considered whether Islam’s complaint could be construed as stating

claims against the CUNY Defendants under the New York State Human Rights Law

(“NYSHRL”) or New York City Human Rights Law (“NYCHRL”). Any such claims

would be barred by the Eleventh Amendment. See, e.g., Weiss v. City Univ. of

New York, No. 17-CV-3557 (VSB), 2019 WL 1244508, at *5 (S.D.N.Y. Mar. 18,

2019); Schwartz v. York Coll., No. 06-CV-6754 (RRM)(LB), 2009 WL 3259379, at

*2 (E.D.N.Y. Mar. 31, 2009). Furthermore, construing these claims as against

the employees’ in their individual capacities such that they would not be

barred would not make them any more viable. The claims would remain time-

barred, see, e.g., Kassner v. 2nd Avenue Delicatessen Inc., 496 F.3d 229, 238

(2d Cir. 2007) (applying three-year statute of limitations to NYSHRL and

NYCHRL claims), and require notice and facts showing some discriminatory

nexus, which – as the Court discusses below – are conspicuously absent from

Islam’s complaint, see, e.g., Spiegel v. Schulmann, 604 F.3d 72, 80 (2d Cir.

2010) (noting that to state a claim under the NYSHRL or NYCHRL, the plaintiff

must allege, inter alia, that “the [challenged] action occurred under

circumstances that give rise to an inference of discrimination”).

construed claims (1) as time-barred and (2) for failure to state

a claim. Islam’s claims are dismissed on both grounds.

A. Statute of Limitations

Both of Islam’s claims against the CUNY Defendants are

subject to three-year statutes of limitations. Martin v. State

Univ. of New York, 704 F. Supp. 2d 202, 234 (E.D.N.Y. 2010)

(“‘Although Title VI does not contain an express statute of

limitations, in New York, such claims falls within the three-

year statute of limitations applicable to personal injury causes

of action.’” (quoting Al–Haideri v. Trustees of Columbia Univ.,

No. 07 Civ. 106 (LTS) (DCF), 2007 WL 2187102, at *2 (S.D.N.Y.

2007)); Patterson v. Cty. of Oneida, 375 F.3d 206, 225 (2d Cir.

2004) (“The statute of limitations applicable to claims brought

under . . . [§] 1983 in New York is three years.”). Since Islam

filed his complaint on April 26, 2018, any claims accruing prior

to April 26, 2015 are time-barred.

“‘While state law supplies the statute of limitations

period, federal law determines when a federal claim accrues.’”

Singh v. Wells, 445 F. App’x 373, 376 (2d Cir. 2011) (quoting

Kronisch v. United States, 150 F.3d 112, 123 (2d Cir. 1998)).

“Under the federal ‘discovery’ rule, a cause of action accrues

‘when the plaintiff knows or has reason to know of the injury

which is the basis of his action.’” Id. (quoting Pearl v. City

of Long Beach, 296 F.3d 76, 80 (2d Cir. 2002). This bars Islam

from bringing any claims for conduct which accrued during his

time at CUNY between Fall 2008 and Fall 2013, and immediately

thereafter, including (1) his receipt of an “F” in Speech 101;

(2) Corkery and Meleties’ decision not to grant Islam credit for

his make-up assignments in Speech 101; (3) CUNY’s decision not

to award Islam a bachelor’s degree, due to his failure to

complete Speech 101; and (4) any potential issues arising out of

Sabio or Prescord’s advice to Islam and their assistance in

managing his status in the United States.

Islam appears to contend that his time to commence an

action should be tolled because he “was in continuous motion

with the matter with [Meleties] for the past few years,” ending

with Meleties’ December 6, 2017 denial of Islam’s request that

CUNY award him a bachelor’s degree. (Opp. at 4.) Islam does

not specify which legal theories underlie his argument, but the

Court believes Islam seeks to invoke either (a) the continuing

violation doctrine or (b) equitable estoppel. Islam cannot rely

on the continuing violation doctrine because it only applies

where there is a pattern of discriminatory conduct which, as the

Court details below, does not appear to have been the case, and

because the events identified by Islam are all discrete events

which are “easy to identify” and thus not evidence of a

continuing violation. See Chin v. Port Auth. of N.Y. & N.J.,

685 F.3d 135, 157 (2d Cir. 2012) (internal quotation marks

omitted). Whether equitable tolling applies requires more

discussion.

“[E]quitable tolling is only appropriate in [] rare

and exceptional circumstance[s], in which a party is prevented

in some extraordinary way from exercising his [or her] rights.”

Zerilli–Edelglass v. N.Y. City Transit Auth., 333 F.3d 74, 80

(2d Cir. 2003) (internal citations and quotation marks omitted).

“When determining whether equitable tolling is applicable, a

district court must consider whether the person seeking

application of the equitable tolling doctrine (1) has acted with

reasonable diligence during the time period she seeks to have

tolled, and (2) has proved that the circumstances are so

extraordinary that the doctrine should apply.” Id. at 80-81

(internal quotation marks omitted).

This is not such an exceptional case that equitable

tolling should apply. Islam did not pursue judicial remedies or

file other pleadings during the period he seeks to have tolled;

he does not allege he was unaware of his cause of action due to

any misleading conduct by the defendants; and he does not allege

any impairment beyond his Fall 2013 injury (which allegedly

caused him to suffer for four months) to justify his delay in

bringing this action. See Sporten v. Bridgehampton Road Races,

LLC, No. 13-cv-1730, 2014 WL 923265 (E.D.N.Y. Mar. 10, 2014)

(explaining that equitable tolling is “generally reserved” for

cases where the plaintiff (1) actively pursued judicial remedies

but filed a defective pleading during the specified time period,

(2) was unaware of his cause of action due to the defendant’s

misleading conduct, or (3) was prevented from filing an action

in a timely fashion due to medical condition or mental

impairment (citing Zerilli-Edelglass, 333 F.3d at 80–81)).

There is, in short, no basis to toll the time Islam had to file

his claims against the CUNY Defendants.

B. Failure to State a Claim

To the extent any of Islam’s claims against the CUNY

Defendants are not time-barred, they nevertheless fail to state

a claim upon which relief may be granted.

i. Title VI

Islam alleges that he was subject to discrimination as

a student at CUNY. The Court, consequently, construes Islam’s

complaint as stating a Title VI claim against the university.

“Title VI prohibits a recipient of federal funds from

discriminating on the basis of race, color, or national origin.”

Zeno v. Pine Plains Cent. Sch. Dist., 702 F.3d 655, 664 (2d Cir.

2012); see also 42 U.S.C. § 2000d; CUNY Mot. at 12, n.7

(conceding that CUNY receives federal funding). To state a

claim under Title VI, “a plaintiff must allege, inter alia, (1)

that the defendant discriminated against him on the basis of

race; (2) that that discrimination was intentional; and (3) that

discrimination was a substantial and motivating factor for the

defendant’s actions.” See Manolov v. Borough of Manhattan Cmty.

Coll., 952 F. Supp. 2d 522, 531 (S.D.N.Y. 2013) (citing Tolbert

v. Queens Coll., 242 F.3d 58, 69 (2d Cir. 2001)).

For a claim “to be cognizable under Title VI, [the]

defendants’ discriminatory intent must ‘actually play[] a role

in’ and have a ‘determinative influence’ on the adverse action.”

J.E. ex rel. Edwards v. Ctr. Moriches Union Free Sch. Dist., 898

F. Supp. 2d 516, 556 (E.D.N.Y. 2012) (quoting Hazen Paper Co. v.

Biggins, 507 U.S. 604, 610 (1993)). Consequently, to survive a

motion to dismiss, the plaintiff “must do more than recite

conclusory assertions”; he “must specifically allege the events

claimed to constitute intentional discrimination as well as

circumstances giving rise to a plausible inference of racially

discriminatory intent.” Yusuf v. Vassar Coll., 35 F.3d 709, 713

(2d Cir. 1994). “[B]are allegations [of discrimination] do not

present circumstances that ‘give rise to an inference of

unlawful discrimination.’” Burgis v. New York City Dep’t of

Sanitation, 798 F.3d 63, 69 (2d Cir. 2015) (quoting Texas Dep’t

of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)).

Islam’s complaint describes the series of unfortunate

events which prevented him from obtaining a bachelor’s degree

and makes the conclusory assertion that Islam was discriminated

against because he was from a “3rd World Country and [of]

different race, color and religion.” (Compl. at 7.) The CUNY

Defendants argue in their motion that there is not “an iota of

factual support for this conclusive declaration . . . anywhere

else in the Complaint.” (CUNY Mot. at 13.) Islam’s opposition

seeks to remedy that deficiency by noting that discrimination

“is an issue which cannot be touch[ed], fel[t][,] or c[aught],”

and by labeling each negative event as “circumstantial” evidence

of discrimination. (Id. at 2, 5.) Islam also states that

color, race, and national origin were “substantial or motivating

factor[s] for the defendant[s’] actions.” (Id.)

The Court sympathizes with Islam’s struggles in

obtaining a degree. The CUNY Defendants, however, are correct

that Islam’s papers plead no facts from which the Court could

infer that a discriminatory animus played a role in the CUNY

Defendants’ conduct. None of the facts alleged suggest that any

of the CUNY Defendants’ referenced or considered Islam’s race,

national origin, or color; treated individuals of other races,

national origins, or colors differently and more favorably; or

expressed any sort of animus towards Islam or were motivated by

any unlawful considerations whatsoever. See, e.g., Doe by &

Through Doe v. Brittonkill Cent. Sch. Dist. Bd. of Educ., No.

18-CV-0142 (GTS) (TWD), 2018 WL 6622191, at *14 (N.D.N.Y. Dec.

18, 2018) (“Nowhere in either the Amended Complaint or his

opposition papers does Plaintiff allege that any Defendant

referred to his race, nor does he recite any other fact from

which race-based discriminatory intent reasonably could be

inferred.”). To the contrary, Islam’s filings suggest that the

CUNY Defendants’ conduct was motivated by genuine concerns, for

instance, Islam’s poor performance in Speech 101 (see, e.g.,

Opp. at 3 (“[Corkery] only gave me an F Grade just because I

could not attend or submit assignment in Speech class.”)), or

restrictions applicable to all international students (see,

e.g., Compl. at 5 (“[Sabio] also said that being an

international student I have no permission to stay more than 30

days after auditing [for graduation].” (emphasis added)).

“Furthermore, to state a claim arising under Title VI,

the plaintiff must ‘allege that the [defendant] had notice of

the complained-of discrimination.’” D.C. by Conley v. Copiague

Union Free Sch. Dist., No. 16-CV-4546 (SJF) (AYS), 2017 WL

3017189, at *9 (E.D.N.Y. July 11, 2017) (quoting Evans v.

Columbia Univ. in the City of New York, No. 14 Civ. 2658, 2015

WL 1730097, at *3 (S.D.N.Y. Apr. 13, 2015)). Islam does not

allege CUNY had notice of the alleged discrimination, and only

notes that he filed a complaint raising unspecified issues on

January 17, 2018, roughly four years after leaving the United

States and well after his time at CUNY. Islam’s apparent

failure to provide notice to CUNY is also fatal to his claim.

See Manolov v. Borough of Manhattan Cmty. Coll., 952 F. Supp. 2d

522, 527 n.1 (S.D.N.Y. 2013) (“[E]ven if Plaintiff adequately

had pleaded discrimination, his apparent failure to notify

[Defendant educational institution] officials of the alleged

discrimination would be fatal to [his] Title VI . . . claims.”).

Based on the foregoing, Islam’s Title VI claim must be

dismissed. See, e.g., Williams v. City Univ. of New York,

Brooklyn Coll., No. 10-CV-2127 (CBA) (LB), 2011 WL 13157370, at

*4 (E.D.N.Y. Feb. 10, 2011) (dismissing Title VI claim where

complaint was devoid of any remarks “reflecting discriminatory

animus” and “alleges nothing more than that [the plaintiff] is

African American” and that the college simply implemented its

own policies against him); Goonewardena v. New York, 475 F.

Supp. 2d 310, 328-29 (S.D.N.Y. 2007) (dismissing Title VI claim

because plaintiff “failed to allege that the school acted with

the requisite discriminatory intent,” “fail[ed] to allege any

acts of discrimination . . . and fail[ed] to allege that he

reported any incidents of discrimination to CUNY officials”);

Tripp v. Long Island Univ., 48 F. Supp. 2d 220, 224 (E.D.N.Y.

1999) (dismissing Title VI claim because the plaintiff “offered

no reasons other than her conclusory allegations to substantiate

her claim that [her professor] acted with a racially

discriminatory intent” in giving her a poor grade).

ii. Section 1983

Islam’s complaint suggests that he also intends to sue

the individual CUNY employees for discrimination. But Islam

cannot assert Title VI claims against individuals. See Russell

v. Cty. of Nassau, 696 F. Supp. 2d 213, 238 (E.D.N.Y. 2010)

(“Title VI claims cannot be asserted against an individual

defendant because the individual is not the recipient of federal

funds.”). The Court may, however, construe Islam’s allegations

as alleging a § 1983 claim against the individual CUNY

defendants, all sued in their official capacities, for the

violation of his rights under the Equal Protection Clause.

To state a claim under § 1983, a plaintiff must show

(1) that some person deprived him of a federal right and (2)

that the person depriving him of that right acted under color of

state law. Velez v. Levy, 401 F.3d 75, 84 (2d Cir. 2005). This

statute “creates no substantive rights; it provides only a

procedure for redress for the deprivation of rights established

elsewhere.” Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993).

As an initial matter, “when the defendant sued for

discrimination under . . . § 1983 is a municipality — or an

individual sued in his [or her] official capacity — the

plaintiff is required to show that the challenged acts were

performed pursuant to a municipal policy or custom.” Patterson,

375 F.3d at 226 (citing Hafer v. Melo, 502 U.S. 21, 25 (1991);

Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S.

658, 693 (1978)). Islam made no such showing. Moreover, “[t]o

the extent that [Islam] brings claims for damages against the

Individual [CUNY] Defendants in their official capacities as

representatives of CUNY or York College, such claims are also

barred by the Eleventh Amendment.” Bahr v. City Univ. of New

York/York Coll., No. 15-CV-4380 (MKB), 2016 WL 8711060, at *5

(E.D.N.Y. Dec. 9, 2016); see also Va. Office for Protection &

Advocacy v. Stewart, 563 U.S. 247 (2011) (explaining that

federal courts cannot entertain a private person’s suit against

a State absent waiver or valid abrogation of a State’s Eleventh

Amendment sovereign immunity).

Yet, the Court will address whether Islam could

otherwise satisfy the requirements of § 1983 to the extent that

he would seek to bring § 1983 claims against the CUNY employees

in their individual capacities for violating his right to equal

protection. The Fourteenth Amendment provides that no state

shall deny “any person within its jurisdiction the equal

protection of the laws.” U.S. Const. Amend. XIV. “It is well

established that ‘[p]roof of racially discriminatory intent or

purpose is required’ to show a violation of the Equal Protection

Clause.” Reynolds v. Barrett, 685 F.3d 193, 201 (2d Cir. 2012)

(quoting City of Cuyahoga Falls v. Buckeye Cmty. Hope Found.,

538 U.S. 188, 194 (2003)); see also Phillips v. Girdich, 408

F.3d 124, 129 (2d Cir. 2005) (“To prove a violation of the Equal

Protection Clause . . . , a plaintiff must demonstrate that he

was treated differently than others similarly situated as a

result of intentional or purposeful discrimination.”). To plead

a plausible equal protection violation, the plaintiff must thus

“present facts sufficient to support an inference of

intentional . . . discrimination.” Howard v. City of New York,

602 F. App’x 545, 557 (2d Cir. 2015). A naked allegation of

discriminatory animus is insufficient to state a plausible equal

protection claim. See, e.g., Albert v. Carovano, 851 F.2d 561,

572 (2d Cir. 1988) (finding “naked allegation” of discriminatory

intent insufficient to constitute claim for relief).

As detailed above, Islam’s complaint pleads no facts

from which the Court could infer a discriminatory motive behind

the defendants’ conduct and thus fails to state a plausible

claim.8 Islam’s § 1983 claims must, therefore, also be

8 An alternative theory of § 1983 liability would be under the Due Process

Clause. “New York law recognizes an ‘implied contract between [a college or

university] and its students,’ requiring ‘the academic institution [to] act

in good faith in its dealing with its students.’” Oladokun v. Ryan, No. 06

CV 2330 (KMW), 2007 WL 3125317, at *4 (S.D.N.Y. Oct. 23, 2007) (quoting

Olsson v. Bd. of Higher Educ., 49 N.Y.2d 408, 414 (N.Y. 1980)). “‘Such an

implied contract, recognized under state law, provides the basis for a

property interest that would be entitled to constitutional protection.’” Id.

(quoting Branum v. Clark, 927 F .2d 698, 705 (2d Cir. 1991)). Therefore, “a

Rule 12(b)(6) dismissal of a student’s claim is improper where the contention

is that the institution’s action was ‘motivated by bad faith or ill will

unrelated to academic performance.’” Branum, 927 F.2d at 705 (quoting

Clements v. County of Nassau, 835 F.2d 1000, 1004 (2d Cir. 1987)). This

claim would also fail, however, as Islam’s allegations raise no inference

that “bad faith or ill will” played a role in CUNY’s dealings with him.

Compare Oladokun, 2007 WL 3125317, at *4.

dismissed. See, e.g., Morales v. New York, 22 F. Supp. 3d 256,

275 (S.D.N.Y. 2014) (compiling cases demonstrating the necessity

of pleading facts raising the inference of intentional

discrimination); 30 Clinton Place Owners Inc. v. City of New

Rochelle, No. 13–CV–3793, 2014 WL 890482, at *2 (S.D.N.Y. Feb.

27, 2014) (granting 12(b)(6) motion to dismiss a § 1983 equal

protection claim because the complaint failed to allege facts

giving rise to inference of discrimination); Bishop v. Best Buy,

Co., No. 08–CV–8427, 2010 WL 4159566, at *12 (S.D.N.Y. Oct. 13,

2010) (dismissing an equal protection claim because the

plaintiff failed to allege any similarly situated individuals

who were treated differently).

III. Remaining Defendants

The Court also addresses Islam’s claims against the

two remaining defendants – Dr. Melisa and Corkery. The Court

construes Islam as naming Dr. Melisa Jn. Pierre as a defendant

in this action and dismisses Islam’s claims against her as

frivolous because they are clearly time-barred, Cummings v.

Giuliani, No. 00-CV-6634, 2000 WL 1597868, *2–3 (S.D.N.Y. Oct.

24, 2000) (dismissing sua sponte fee-paying pro se plaintiff’s

claims that were clearly time-barred); Livingston v. Adirondack

Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998) (action frivolous

where “factual contentions are clearly baseless,” as when “the

claim is based on an indisputably meritless legal theory,” e.g.,

where “a dispositive defense clearly exists on the face of the

complaint”), having been brought over four years after Islam

last interacted with Dr. Melisa, see Pino v. Ryan, 49 F.3d 51,

54 (2d Cir. 1995) (finding sua sponte dismissal of section 1983

claim based on statute of limitations “especially appropriate

where ... the injuries complained of [by the pro se plaintiff]

occurred more than five years before the filing of the

Complaint”). They would, in any event, fail to state a claim

upon which relief may be granted for the reasons described in

more detail above.

The Court may also need to dismiss this action against

Corkery for lack of capacity to be sued, pending receipt of

certain information from the AG. Rule 17(b)(1) provides that

the capacity of an individual (not acting in a representative

capacity) to be sued is determined “by the law of the

individual’s domicile.” Fed. R. Civ. P. 17(b)(1). If Corkery’s

last domicile was New York, he would lack capacity to be sued.

Lawson v. L.R. Mack, Inc., 282 N.Y.S. 982, 983 (App. Div. 1935)

(“A deceased person cannot be a party to an action at law.”);

Livshits v. Raginskiy, 735 N.Y.S.2d 579, 580 (App. Div. 2001).

And if Islam filed his claims after Corkery died, the Court

could not construe them as against Corkery’s estate, and

dismissal would be required. See Johnson v. Schiff, No. 11-CV-

0531 (MAD) (TWD), 2013 WL 5466218, at *5 (N.D.N.Y. Sept. 13,

2013), rep. & rec. adopted, No. 11-CV-00531 MAD, 2013 WL 5466638

(N.D.N.Y. Sept. 30, 2013). The Court will, consequently, direct

the AG to provide information confirming the date of Corkery’s

death and his domicile at the time of his death.

IV. Motion to Appoint Counsel

In his opposition, Islam appears to request

appointment of counsel in this action. (Id. at 6.) The Court

respectfully denies Islam’s request. It is well-settled that

there is no right to counsel in a civil case, Martin–Trigona v.

Lavien, 737 F.2d 1254, 1260 (2d Cir. 1984), and a court need

only appoint counsel after finding that a plaintiff’s case meets

“a threshold showing of some likelihood of merit,” see Johnston

v. Genessee Cnty. Sheriff Maha, 606 F.3d 39, 41 (2d Cir. 2010).

Islam’s case does not meet this standard.9

V. Leave to Amend

“‘A pro se complaint should not be dismissed without

the Court granting leave to amend at least once when a liberal

reading of the complaint gives any indication that a valid claim

might be stated.’” Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir.

9 Islam, alternatively, requests leave to secure counsel. (Opp. at 6.) Islam

does not appear to request a stay of this action or the Court’s ruling on the

instant motions. Even if Islam did intend to make such a motion, however, he

provides no basis for a stay. The instant motions have been pending for

almost six months, without any indication that Islam is actively seeking the

assistance of counsel. Islam also claims he cannot secure counsel without

traveling to the United States, yet he provides no timetable for such a trip.

In any event, it does not appear that the assistance of an attorney could

remedy the deficiencies in Islam’s complaint.

2014) (quoting Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir.

2010)). “However, ‘leave to amend a complaint may be denied

when amendment would be futile.’” Id. (quoting Tocker v. Philip

Morris Cos., 470 F.3d 481, 491 (2d Cir. 2006)). “‘Futility’ is

a valid reason for denying a motion to amend . . . where it is

‘beyond doubt that the plaintiff can prove no set of facts in

support’ of his amended claims.” Pangburn v. Culbertson, 200

F.3d 65, 70–71 (2d Cir. 1999).

Unlike cases where leave is warranted, there is no

“suggest[ion] that [Islam] has a claim that [he] has

inadequately or inartfully pleaded and . . . should therefore be

given a chance to reframe.” Cuoco v. Moritsugu, 222 F.3d 99,

112 (2d Cir. 2000). Islam’s claims against the Transit

Defendants are clearly time-barred. See, e.g., Tompkins v.

AlliedBarton Sec. Servs., 424 F. App’x 42, 43 (2d Cir. 2011)

(finding amendment futile where it was “clear from the record

that . . . the claim was untimely”).

Amendment of Islam’s claims against the CUNY

Defendants would similarly be futile, either because they are

time-barred, see id., or because it is clear that Islam will not

be able to plead any nonconclusory allegations supporting an

inference of discrimination, see, e.g., Johnson v. New York

Univ., No. 18-3305, 2020 WL 502388, at *3 (2d Cir. Jan. 31,

2020) (finding amendment futile where complaint alleged no

“nonconclusory facts showing that NYU had discriminated against

[plaintiff]”). Despite filing several submissions detailing his

interactions with the CUNY Defendants both before and after

being placed on notice by the defendants that he must plead

facts from which the Court could infer discrimination (see,

e.g., Compl.; PMC Opp.; ECF No. 27, Letter from Islam; Opp.; ECF

No. 41, Letter from Islam), Islam’s allegations have remained

substantively identical; he has pleaded no facts supporting any

purported discrimination and instead has simply asserted that:

[D]iscrimination is an issue which cannot be touch, feel or

catch. It is a feeling of sensation, realization and

understanding of the attitude or behavior from others. All

I am trying to say that how, when and where discrimination

had taken place. Therefore, I am trying to explain again

and again the fact of discrimination which I am stating

below[.]

(Opp. at 2.) The Court has reviewed all the events, as

explained by Islam on several occasions, and assumed that they

are true; the Court finds it beyond doubt that he could not

allege facts showing his entitlement to relief.

Conclusion

For the reasons set forth above, the Court hereby

GRANTS (1) the Transit Defendants’ motion to amend their answer

and motion for judgment on the pleadings and (2) the CUNY

Defendants’ motion to dismiss. The NYCTA, the MTA, CUNY, Sabio,

Meleties, and Dr. Melisa are dismissed from this action. The AG

is directed to submit a letter by April 14, 2020, indicating the

date of Corkery’s death and his domicile at the time of his

death, including necessary proof.

The Clerk of Court is directed to serve a copy of this

Memorandum and Order on pro se plaintiff and to note service on

the docket. The Court certifies pursuant to 28 U.S.C. §

1915(a)(3) that any appeal from this Memorandum and Order would

not be taken in good faith and, therefore, denies in forma

pauperis status for the purpose of an appeal. Coppedge v.

United States, 369 U.S. 438, 444-45 (1962).

SO ORDERED.

Dated: March 24, 2020

Brooklyn, New York

_________/s/

Hon. Kiyo A. Matsumoto

United States District Judge