Lau v. NYSARC Trust Service, Inc.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

JOHN DOE,

Plaintiff,

V.

No. 1:20-CV-801

5 NYSARC TRUST SERVICE, INC. et al., (BKS/CFH)

Defendants.

APPEARANCES:

John Doe

P.O. Box 1482

New York, New York

Plaintiff pro se

REPORT-RECOMMENDATION AND ORDER

Il. In Forma Pauperis

Plaintiff pro se (“plaintiff’)' commenced this action on February 20, 2020, by filing

a complaint. See Dkt. No. 1 (“Compl.”). In lieu of paying this Court's filing fee, he

submitted a motion to proceed in forma pauperis (“IFP”). See Dkt. No. 2. The

undersigned has reviewed plaintiff's IFP motion and determines that he may properly

proceed IFP.2

The undersigned notes that plaintiff is a particularly litigious individual who has filed numerous actions

in other courts. See, e.g., Lau v. Am. Eagle Outfitters, No. 17-CV-6055 (GBD/BCM), 2017 WL 6987996,

at *1 (S.D.N.Y. Dec. 1, 2017) (“Plaintiff . . . is not a stranger to this [cJourt. Because of his “extensive

history of filing frivolous complaints,” both here and in other courts, he has been barred from filing any

new cases in forma pauperis (IFP) “without first obtaining from the [cJourt leave to file.”) (quoting Lau v.

Match.Com, et.al, Case No. 13-CV-2938 (S.D.N.Y. Jan 28, 2014) (Order)), report and recommendation

adopted, No. 17-CV-6055 (GBD/BCM), 2018 WL 461102 (S.D.N.Y. Jan. 16, 2018).

2 Plaintiff is advised that although he has been granted IFP status, he is still required to pay any fees and

costs he may incur in this action, including but not limited to copying fees, transcript fees, and witness

fees.

ll. Initial Review

A. Legal Standard

Section 1915 of Title 28 of the United States Code directs that, when a plaintiff

seeks to proceed IFP, “the court shall dismiss the case at any time if the court

determines that... the action or appeal (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). Thus, it is a court's

responsibility to determine that a plaintiff may properly maintain his complaint before

permitting him to proceed with his action.

Where, as here, the plaintiff proceeds pro se, “the court must construe his

submissions liberally and interpret them to raise the strongest arguments that they

Suggest.” Kirkland v. Cablevision Sys., 760 F.3d 223, 224 (2d Cir. 2014) (per curiam)

(internal quotation marks omitted). However, this does not mean the Court is required

to accept unsupported allegations that are devoid of sufficient facts or claims. Although

detailed allegations are not required at the pleading stage, the complaint must still

include enough facts to provide the defendants with notice of the claims against them

and the grounds upon which these claims are based. See Ashcroft v. Iqbal, 556 U.S.

678 (2009); Bell Atlantic v. Twombly, 550 U.S. 544, 555-56 (2007). Ultimately, the

plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.”

Twombly, 550 U.S. at 570.

Pleading guidelines are set forth in the Federal Rules of Civil Procedure (“Fed. R.

Civ. P.”). Specifically, Rule 8 provides that a pleading which sets forth a claim for relief

shall contain, among other things, “a short and plain statement of the claim showing tha

the pleader is entitled to relief.” FED. R. Civ. P. 8(a)(2). “The purpose . . . is to give fair

notice of the claim being asserted so as to permit the adverse party the opportunity to

file a responsive answer, prepare an adequate defense and determine whether the

doctrine of res judicata is applicable.” Flores v. Graphtex, 189 F.R.D. 54, 54 (N.D.N.Y.

1999) (internal quotation marks and citations omitted). Rule 8 also requires the

o pleading to include:

(1) a short and plain statement of the grounds for the court’s

jurisdiction...

(2) a short and plain statement of the claim showing that the

pleader is entitled to relief; and

(3) a demand for the relief sought .. . .

R. Civ. P. 8(a). Although “[nJo technical form is required,” the Federal Rules make

Clear that each allegation contained in the pleading “must be simple, concise, and

direct.” Id. at 8(d).

Further, Rule 10 of the Federal Rules provides in pertinent part that:

[a] party must state its claims or defenses in numbered

paragraphs, each limited as far as practicable to a single set

of circumstances. A later pleading may refer by number to a

paragraph in an earlier pleading. If doing so would promote

clarity, each claim founded on a separate transaction or

occurrence — and each defense other than a denial — must

be stated in a separate count or defense.

FED. R. Civ. P. 10(b). This serves the purpose of “provid[ing] an easy mode of

identification for referring to a particular paragraph in a prior pleading[.]’ Flores, 189

F.R.D. at 54 (internal quotation marks and citations omitted). A complaint that fails to

comply with the pleading requirements “presents far too a heavy burden in terms of

defendants’ duty to shape a comprehensive defense and provides no meaningful basis

for the Court to assess the sufficiency of their claims.” Gonzales v. Wing, 167 F.R.D.

352, 355 (N.D.N.Y. 1996). As the Second Circuit has held, “[w]hen a complaint does

not comply with the requirement that it be short and plain, the court has the power, on

its own initiative . . . to dismiss the complaint.” Salahuddin v. Cuomo, 861 F.2d 40, 42

(2d Cir. 1988) (citations omitted). However, “[d]ismissal . . . is usually reserved for

| those cases in which the complaint is so confused, ambiguous, vague, or otherwise

unintelligible that its true substance, if any, is well disguised.” Id. (citations omitted). In

such cases of dismissal, particularly when reviewing a pro se complaint, the court

generally affords the plaintiff leave to amend the complaint. See Simmons v. Abruzzo,

49 F.3d 83, 86-87 (2d Cir. 1995). A court should not dismiss a complaint if the plaintiff

has stated “enough facts to state a claim to relief that is plausible on its face.” Twombly,

m|550 U.S. at 570. “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.” Iqbal, 556 U.S. at 678 (citation omitted).

B. Plaintiff's Amended Complaint

Plaintiff filed his original complaint on July 16, 2020. See Dkt. No. 1. He then

| filed an amended complaint on August 31, 2020, which supersedes his original

complaint. See Dkt. No. 10 (“Amen. Compl.”); see also Int'l Controls Corp. v. Vesco,

556 F.2d 665, 668 (2d Cir. 1977) (“It is well established that an amended complaint

ordinarily supersedes the original, and renders it of no legal effect.”). Thus, presently

pending before the undersigned for review pursuant to 28 U.S.C. § 1915 is plaintiff's

amended complaint.

Liberally construed, plaintiff's amended complaint asserts causes of action

pursuant to Title Ill of the Americans with Disabilities Act (“ADA”) and the New York

State Human Rights Law (“NYSHRL”), alleging disability discrimination and failure to

provide reasonable accommodations; and New York State law claims for intentional

infliction of emotional distress, assault and battery, and respondeat superior liability.

| See Dkt. Not. 10 (Amen. Compl.) at 12-14. Plaintiff names as defendants NYSARC

Trust Services, Inc. (“NYSARC”), a non-profit business in Albany County; Warren H.

Heillbronner, Esq. (“Heillbronner’), the Trustee and Chairman of the Board of NYSARC;

Heidi J. Flatt, CPA (“Flatt”), Director and Chief Operating Officer of NYSARC; Nancy E.

Cannon, CPA (“Cannon”), Director and Assistant Chief Operating Officer of NYSARC;

Nadia Arginteano, Esq. (“Arginteano”), Trust Attorney at NYSARC; Dorothy Zyskowski

m| (“Zyskowski”), Director of Trusts at NYSARC; Alison Wilkinson (“Wilkinson”), plaintiff's

former case manager at NYSARC; Candace Johnstone (“Johnstone”), trust

manager/administrator at NYSARC; Jaimie Harla (“Harla”), team leader-trust

administration’; Laura A. Kennedy (“Kennedy”), President of NYSARC; Tina F.

Seaburg, Esq. (“Seaburg’), interim Executive Director of NYSARC; John or Jane Doe,

Il, Vice President of NYSARC; Jamie Doe, assistant trust manager; and Julie Doe. See

m| Amen. Compl. at 1.

Plaintiff alleges that, on January 5, 2019, he travelled to Albany, New York, for a

appointment with Johnstone concerning his pooled supplemental needs trust. See

Amen. Compl. at 4 J 20, 5 J 21. Plaintiff posits that, at some point after arriving inside

3 Jamie Harla is not listed as a defendant on CM/ECF, but is listed as a defendant n plaintiffs amended

complaint. See Dkt. No. 10 (“Amen. Compl.”) at 1. The Clerk of the Court is respectfully directed to add

Jamie Harla as a defendant in this action.

NYSARC’s lobby, Heillbronner, Flatt, Zyskowski, Arginteano, Wilkinson, Harla, Seaburg,

and “John Doe or Jane Doe as the Vice President of the NYSARC . . . ejected and

removed [plaintiff against his will from the subject premises.” Id. at5 921. He

contends that Heillbronner, Flatt, Zyskowski, Arginteano, Wilkinson, Jamie Doe,

Seaburg, and “John Doe or Jane Doe as the Vice President of the NYSARC ...

[a]dvised [p]laintiff that his eject [sic] because schizophrenia and mild mental

retardation, both of which impairments have lasted several years and significantly impai

[sic] one or more of his major life activities[,] including working and self[-]care.” Id. at 5-

6 22. Plaintiff alleges that, “[rjather than engaged [sic] in a dialogue with [p]laintiff to

identify some mutually agreeable or otherwise reasonable accommodation to

[p]laintiff[,]” Heillbronner, Flatt, Zyskowski, Arginteano, Wilkinson, Harla, Seaburg, and

“John Doe or Jane Doe as the Vice President of the NYSARC “barred [p]laintiff from the

premises.” Id. at 6 J 24. Moreover, plaintiff contends that, “[o]n information and belief,”

NYSARC, Heillbronner, Flatt, Zyskowski, Arginteano, Wilkinson, Jamie Doe, Seaburg,

and “John Doe or Jane Doe as the Vice President of the NYSARC’” “does not treat

similarly situated non-disabled person [sic] in the manner in which [p]laintiff was

treated.” Id. at 7 J 25. Plaintiff argues that, “[a]s a result, [he] was forced to leave the

| premises, was rendered [sic] in the midst of winter.” Id. at J 26.

Plaintiff further alleges that NYSARC, Heillbronner, Flatt, Zyskowski, Arginteano,

Wilkinson, Jamie Doe, Seaburg, John Doe or Jane Doe as the Vice President of the

NYSARC, “suddenly entered the [lJobby area that [p]laintiff occupied” and that

NYSARC, Heillbronner, Flatt, Zyskowski, Arginteano, Wilkinson, Harla, Seaburg, and

John or Jane Doe as the Vice President of NYSARC, “using baton-like object [sic], and

the [djefendants’ [s]ecurity guard and also [sic] the [djefendants too threatened [plaintiff]

and without [p]laintiff's consent [sic] by using a number of derogatory and offensive

language [sic] . . . calling [him] ‘a dumb bastard,” and saying, “[y[ou are retarded,” and

“[ylour are a retarded motherfucker.” Amen. Compl. at 8 J 27, 9 J 28. Plaintiff also

asserts that NYSARC, Heillbronner, Flatt, Zyskowski, Arginteano, Wilkinson, Harla,

o Seaburg, and John or Jane doe as Vice President of NYSARC “threatened [him] in sum

and substance[] by stating[,] ‘I will kill [yjou and whole [sic] motherfuck [sic] family and

friends.” Id. at 9 J 29. Plaintiff also appears to allege that Harla told him that “we do not

let your disability kind [sic] in the [NYSARC premises] as a matter of fact.” Id. at 10 J 30

(italics omitted). Plaintiff alleges that, “[a]s a direct and proximate result of the

aforementioned conduct on the part of both [sic] [d]efendants, [p]laintiff suffered great

emotional distress, anxiety and depression, and in the alternative, [p]laintiff's [p]re-

existing distress, anxiety and depression were thereby greatly exacerbated.” Id. at 11]

31.

Plaintiff alleges that, “[djefendants NYSARC ... , through the action of?”

Heillbronner, Flatt, Zyskowski, Arginteano, Wilkinson, Jamie Doe, Seaburg, and John or

Jane Doe as the Vice President of NYSARC, “discriminated against [him] on the basis

| Of his disabilities.” Amen. Compl. at 12 {| 33. Further, plaintiff contends that, “[d]ue to

both [sic] [d]efendants [sic] disparate treatment of [p]laintiff as an individual with an

actual and/or perceived disability, and their refusal to reasonably accommodate him[,

djefendants have violated both the anti-discrimination and reasonable accommodation

provision of [the ADA and NYSHRL].” Id. at 35; see id. at 14 7 40. Plaintiff also state

that “[dJefendants’ conduct denied [him] equal access to their facilities because of his

disability” and, as a result, he “suffered inconvenience, embarrassment, and humiliation,

inter alia.” Id. at 13 7 37; 14 9] 41, 44. He posits that defendants’ “wrongful behavior

[sic] [his] rights under the [ADA] caused [him] psychological suffering.” Id. at 12 J 33.

Moreover, plaintiff alleges that “NYSARC ... and Heillbronner . . . are liable under

[rlespondeat [s]uperior [c]laims.” Id. at 15 {| 49.

o Plaintiff requests as relief (1) compensatory and punitive damages “under the

ADA ...and the... NYSHRL’; (2) declaratory judgement; (3) injunctive relief; and (4)

any further relief the “Court deems appropriate, including costs pursuant to 42 U.S.C. §

1988.” Amen. Compl. at 16 Jf 48-49, 17.

C. Analysis of the Amended Complaint?

i 1. Requested Relief

As an initial matter, insofar as plaintiff seeks monetary relief for alleged violations

of Title of the ADA, his claims must be dismissed with prejudice because “Title III[]

authorizes private actions only for injunctive relief, not monetary damages.” Krist v.

Kolombos Rest. Inc., 688 F.3d 89, 94 (2d Cir. 2012). In addition, to the extent plaintiff

seeks punitive damages pursuant to the NYSHRL, his claims must likewise be

| dismissed with prejudice because, except in cases of housing discrimination, “the

NYSHRL does not permit [recovery of] punitive damages.” Hauff v. State Univ. of New

York, 425 F. Supp. 3d 116, 138 (E.D.N.Y. 2019); see N.Y. Exec. LAw § 297(9) (“Any

person claiming to be aggrieved by an unlawful discriminatory practice shall have a

cause of action in any court of appropriate jurisdiction for damages, including, in case

4 All unpublished opinions cited in this Report-Recommendation and Order, unless otherwise noted, hav

been provided to plaintiff.

of housing discrimination only, punitive damages, and such other remedies as may

be appropriate ... .” (emphasis added)).

2. Intentional Disability Discrimination Claims under Title Ill of the ADA and

the NYSHRL Against NYSARC

“To state a claim under the ADA and the NYSHRL, a plaintiff must allege (1) that

[]he is a qualified individual with a disability; (2) that defendants are a public

accommodation as defined under Title Ill; and (3) that []he was denied the opportunity

to participate in or benefit from defendants’ services, programs or activities, or was

otherwise discriminated against by defendants on the basis of [his] disability.” Oakley v.

Dolan, No. 17-CV-6903 (RJS), 2020 WL 818920, at *15 (S.D.N.Y. Feb. 19, 2020)

(internal quotation marks and citation omitted); see also Rodal v. Anesthesia Grp. of

. Onondaga, P.C., 369 F.3d 113, 117 n.1 (2d Cir. 2004) (“New York State disability

discrimination claims are governed by the same legal standards as federal ADA

claims.”); Romanello v. Shiseido Cosmetics Am. Ltd., No. 00-CV-7201 (JGK), 2002 WL

31190169, at *7 (S.D.N.Y. Sept. 30, 2002) (“[T]he same standards used to evaluate

claims under the ADA also apply to cases involving the NY[S]JHRL.”).

Under the ADA, the term “disability” means “a physical or mental impairment that

substantially limits one or more major life activities of such individual.” 42 U.S.C. §

12102. A physical or mental impairment can be “[a]Jny mental or psychological disorder,

such as an intellectual disability [or an] emotional or mental illness[.]’ 29 C.F.R. §

1630.2(h)(2). “[M]ajor life activities include, but are not limited to, caring for oneself,

performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting,

bending speaking, learning, reading, concentrating, thinking, communicating, and

working.” 42 U.S.C. § 12102. “[P]ublic accommodations” are defined under 42 U.S.C.

§ 12181(7)(F), which includes a long list of qualifying private facilities, provided that thei

operations “affect commerce,” such as an “insurance office, professional office of a

health care provider, hospital, or other service establishment.”

Here, plaintiff alleges that he suffers from schizophrenia and mild mental

| retardation, which he posits impair his ability to work and care for himself. See Amen.

Compl. at 5-6 J 22. Further, he states that NYSARC is a non-profit entity that services,

among other things, pooled supplemental needs trusts and that he is a beneficiary of

such a trust that is serviced by NYSARC. See id. at 2 J] 3, 4] 20. Moreover, liberally

construing the amended complaint, plaintiff alleges that employees of NYSARC ejected

him from NYSARC’s place of business explicitly because of his disabilities, thereby

m| depriving him of NYSARC’s services. See id. at 5] 21. Accordingly, affording plaintiff's

pro se pleading a liberal construction, the undersigned concludes that plaintiff's

intentional discrimination claims against NYSARC pursuant to Title III of the ADA for

injunctive relief and the NYSHRL for injunctive relief and/or compensatory damages

survive initial review. However, the undersigned makes no finding as to whether these

claims would survive a properly supported dispositive motion.

tri

3. Disability Discrimination Claims under Title Ill of the ADA and the NYSHRL

Against the Individual Defendants

“[T]he question of whether a person is a proper defendant under the ADA turns

...on... Whether the defendant owns, leases, or operates a place of public

accommodation within the meaning of the ADA.” Coddington v. Adelphi Univ., 45 F.

Supp. 2d 211, 215 (E.D.N.Y. 1999) (emphasis removed). In assessing whether an

10

individual is a proper defendant under the ADA, “{cJourts . . . have focused on the issue

of control and whether the named defendant ‘operates’ a place of public

accommodation within the meaning of the ADA.” Id. at 216. “Under Title Ill, ‘to operate’

means ‘to put or keep in operation,’ ‘to control or direct the functioning of,’ or ‘to conduct

the affairs of; manage.” Green v. DGG Properties Co., Inc., No. 3:11-CV-01989 (VLB),

2013 WL 395484, at *13 (D. Conn. Jan. 31, 2013) (quoting Celeste v. East Meadow

Union Free School Dist., 373 F. App’x 85, 91 (2d Cir. 2010) (summary order) (additional

internal quotation marks and citation omitted). Further, “[t]he term ‘operate’ has been

interpreted as being in a position of authority and having the power and discretion to

perform potentially discriminatory acts.” Coddington, 45 F. Supp. 2d at 215. Moreover,

courts have explained that “[s]uch discriminatory acts may result in the imposition of

| liability under the ADA where they are the result of the exercise of the individual's own

discretion, and not merely the implementation of institutional policies or the mandates of

superiors.” Id.

However, courts have held that “naked assertions devoid of further factual

enhancement” concerning an individual defendant’s level of control over a public

accommodation are insufficient for purposes of establishing individual liability under

| Title Ill of the ADA or the NYSHRL. Iqbal, 556 U.S. at 678; see Green, 2013 WL

395484, at *14. For example, in Green, where “[p]laintiff merely assert[ed] the names o

the individual defendants and their respective titles,” without more, the court held that,

although the individual defendants could “be proper defendants in [the] action if they

exercised the requisite control over [the public accommodation], the plaintiff “failed to

allege any facts in his complaint that would allow the court to conclude that [the

11

individual defendants] exercised such control over the functioning of affairs of [the publi

accommodation].” Id. Similarly, in Bebry, the court held that the plaintiff failed to

sufficiently plead facts to establish individual liability under Title III of the ADA or the

NYSHRL where the plaintiff alleged only that the individual defendant was “the lessee

and/or operator of the [rlestaurant and the owner of the improvements where the

[rjestaurant [wa]s located” and that, although plaintiff established that the individual

defendant was “the [c]hairman or CEO of” the entity that ran the restaurant and the

tenant of the property where the restaurant was located, the complaint “provide[d] no

additional factual allegations.” Bebry v. ALJAC LLC, 954 F. Supp. 2d 173, 178, 179

(E.D.N.Y. 2013).

Here, even affording the amended complaint the most liberal construction

possible, plaintiff has not pleaded facts to establish the liability of any of the individual

defendants under the ADA or the NYSHRL. Similar to Bebry and Green, although

plaintiff states the names and titles of the individual defendants in making his claims, th

amended complaint does not advance any facts from which the undersigned is able to

infer that any of the individual defendants “were in such positions of authority, or had

such power and discretion” such that they can be said to “operate” NYSARC. Green,

| 2013 WL 395484, at *14; see Bebry, 954 F. Supp. 2d at 178, 179. In addition, despite

placing all or most of the individual defendants’ names before each of his allegations

concerning the purportedly discriminatory comments and threats, plaintiff does not

proffer any facts indicating which of these defendants made the alleged threats or

remarks complained of. See Amen. Compl. at 8 J 27, 9 Ff 28-29, 10 4] 30. Moreover,

although plaintiff appears to allege that a security guard at NYSARC was responsible

12

for at least some of the purportedly discriminatory conduct, the security guard is not

named as a defendant in this action. See id. at 8 27. Thus, in light of plaintiff's pro se

status, it is recommended that plaintiff's claims pursuant to Title Ill of the ADA and the

NYSHRL against the individual defendants be dismissed without prejudice and

opportunity to amend.

a

4. Failure to Provide Reasonable Accommodations under Title Ill of the ADA

and the NYSHRL Against NYSARC and the Individual Defendants

“Title[] . . . Ill of the ADA prohibit[s] discrimination against qualified disabled

individuals by requiring that they receive ‘reasonable accommodations’ that permit them

to have access to and take a meaningful part in public services and public

accommodations.” Powell v. Nat'l Bd. of Med. Examiners, 364 F.3d 79, 85 (2d Cir.),

. opinion corrected, 511 F.3d 238 (2d Cir. 2004) (citations omitted). To adequately plead

a claims pursuant to Title III of the ADA and the NYSHRL for failure to provide

reasonable accommodations, a plaintiff must allege facts establishing that the

defendant's “failure to make ‘reasonable modifications’ to their policies, practices, and

procedures deprived plaintiff of the ability to access the ‘goods, services, facilities,

privileges, advantages, or accommodations’ available to those lacking [the] plaintiff's

disabilities.” Andersen v. N. Shore Long Island Jewish Healthcare Sys. Zucker Hillside

Hosp., No. 12-CV-1049 (JFB/ETB), 2013 WL 784391, at *9 (E.D.N.Y. Jan. 23, 2013)

(quoting 42 U.S.C. 12182(b)(2)(A)(i)-(ii) (additional citation omitted), report and

recommendation adopted as modified, No. 12-CV-1049 (JFB/ETB), 2013 WL 784344

(E.D.N.Y. Mar. 1, 2013).

13

Here, plaintiff alleges that, “[rjather than engaged [sic] in a dialogue with [p]laintiff

to identify some mutually agreeable or otherwise reasonable accommodation to

[p]laintiff[,]” Heillbronner, Flatt, Zyskowski, Arginteano, Wilkinson, Harla, Seaburg, and

“John Doe or Jane Doe as the Vice President of the NYSARC “barred [p]laintiff from the

premises.” Id. at 6 J 24. He alleges that defendants took this action solely because of

| his schizophrenia and mild mental retardation. See id. at 5-6 J 22. Plaintiff's

allegations in this regard are wholly conclusory and the amended complaint is devoid of

factual allegations concerning NYSARC’s “policies, practices, [or] procedures.”

Andersen, 2013 WL 784391, at *9. Accordingly, it is recommended that plaintiff's

claims for disability discrimination based on failure to provide reasonable

accommodations be dismissed. In light of plaintiff's pro se status, it is recommended

| that these claims be dismissed without prejudice and leave to amend.

5. Disability Discrimination based on Disparate Treatment of Similarly Situated

Individuals under Title Ill of the ADA and the NYSHRL Against NYSARC and the

Individual Defendants

“A showing of disparate treatment—that is, a showing that the [defendant]

treated plaintiff less favorably than a similarly situated [person] outside his protected

| Jroup—is a recognized method of raising an inference of discrimination.” Mandell v.

Cty. of Suffolk, 316 F.3d 368, 379 (2d Cir. 2003). Here, insofar as plaintiffs amended

complaint may be construed as attempting to establish disability discrimination based

on disparate treatment by stating that defendants “do[] not treat similarly situated non-

disabled person [sic] in the manner in which [p]laintiff was treated,” Amen. Compl. at 7 J

25, plaintiff's claim in this regard is wholly conclusory in that he fails to proffer any facts

14

in support thereof. Consequently, it is recommended that plaintiffs claims for disability

discrimination based on disparate treatment be dismissed. In light of plaintiff's pro se

status, it is recommended that these claims be dismissed without prejudice and with

opportunity to amend.

° 6. State Law Claims

Liberally construing the amended complaint, plaintiff appears to allege New

York State law claims of intentional infliction of emotional distress (“IIED”), assault and

battery, and respondeat superior liability. See Amen. Compl. at 8 J 27, 9 J 28, 11 7 31,

15 I] 45-47. Plaintiffs New York State law claims for IIED and assault and battery are

barred by the one-year statute of limitations that governs those claims. See C.P.L.R.

m| 215(3) (“The following actions shall be commenced within one year: an action to recove

damages for assault [and] battery.”); see also Forbes v. Merrill Lynch, Fenner & Smith,

Inc., 957 F. Supp. 450, 455 (S.D.N.Y. 1997) (“It is well established under New York law

that a claim of intentional infliction of emotional distress has a one-year statute of

limitations.” (internal quotation marks and citations omitted). Thus, because plaintiff's

claims accrued on January 5, 2019—the date of the alleged incidents at NYSARC—and

| Plaintiff did not file this action until July 7, 2020, see Dkt. No. 1, the statute of limitations

for his state law tort claims has expired. See C.P.L.R. 215(3); Eorbes, 957 F. Supp. at

455. Consequently, as plaintiff's state law tort claims must be dismissed as time-

barred, “it necessarily follows that any cause of action against [NYSARC or

Heillbronner] based on the theory of respondeat superior and premised upon the

alleged [state law torts] must also be dismissed” as time-barred. Magriz v. St. Barnabas

15

Hosp., 43 A.D.3d 331, 333, 841 N.Y.S.2d 245, 246 (2007). Accordingly, it is

recommended that plaintiff's state law claims be dismissed with prejudice and without

opportunity to amend.

D. Request to be Proceed Under a Pseudonym

Also presently pending before the undersigned is plaintiff's request to be liste

as an anonymous plaintiff and to proceed using a pseudonym. See DKt. No. 9.

Plaintiff's asserted reasons for seeking to proceed anonymously are that (1) there “was

a threat to [his] life by [djefendants’ employment [sic], and during that person’s work

with the [djefendant”; and (2) certain documents he has submitted to the Court contain

personal information, such as his social security number. Id. at 1. Plaintiff argues that

m| he has “a right to. . . privacy by law in the event of identity theft.” Id.

Courts consider the following non-exhaustive list of factors in determining

whether to allow a plaintiff to remain anonymous and proceed under a pseudonym:

(1) whether the litigation involves matters that are highly

sensitive and of a personal nature; (2) whether identification

poses a risk of retaliatory physical or mental harm to the

party seeking to proceed anonymously or even more

critically, to innocent non-parties; (3) whether identification

presents other harms and the likely severity of those harms;

(4) whether the plaintiff is particularly vulnerable to the

possible harms of disclosure; (5) whether the suit is

challenging the actions of the government or that of private

parties; (6) whether the defendant is prejudiced by allowing

the plaintiff to press his claims anonymously, whether the

nature of that prejudice (if any) differs at any particular stage

of the litigation, and whether any prejudice can be mitigated

by the district court; (7) whether the plaintiff's identity has

thus far been kept confidential; (8) whether the public’s

interest in the litigation is furthered by requiring the plaintiff to

disclose his identity; (9) whether, because of the purely legal

nature of the issues presented or otherwise, there is an

16

atypically weak public interest in knowing the litigants’

identities; and (10) whether there are any alternative

mechanisms for protecting the confidentiality of the plaintiff.

Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 189 (2d Cir. 2008) (internal

quotation marks, citations, brackets, and ellipses omitted).

In this case, plaintiff's request neither discusses these relevant factors nor

o provides any basis for extending the rare privilege of proceeding in the action using a

pseudonym. Although he has provided documents containing personal identifying

information, he has not identified any real or specific risk of harm, including theft of his

identity, if his request to proceed anonymously is denied. Indeed, it is rare that the

personal identifying information of parties in litigation is not contained in their filings in

this Court. Moreover, having considered plaintiff's amended complaint, the undersigned

concludes that plaintiff's privacy interests do not outweigh the public’s interest in full

disclosure of these judicial proceedings. Plaintiff has voluntarily opted to commence

this action and air his grievances in a quintessentially public forum. Therefore, in the

interest of facilitating public scrutiny of judicial proceedings, and in the interest of basic

fairness, the undersigned finds that plaintiff should be required to proceed in this action

using his true identity. See Doe v. Frank, 951 F.2d 320, 323 (11th Cir.1992) (“The

| Ultimate test for permitting a plaintiff to proceed anonymously is whether [he] has a

substantial privacy right which outweighs the customary and constitutionally-embedded

presumption of openness in judicial proceedings. It is the exceptional case in which a

plaintiff may proceed under a fictitious name.” (quotation marks, footnote, citation

omitted)); Doe v. Shakur, 164 F.R.D. 359, 361 (S.D.N.Y.1996) (“Fairness requires that

[the plaintiff] be prepared to stand behind her charges publicly.”).

17

E. Motion to Register and Consent for Electronic Service of Orders and Notices

Issued by the Court in Civil Cases

Plaintiff has also filed a form from the United States District Court for the

Eastern District of New York titled “Pro Se Registration and Consent for Electronic

Service of Orders and Notices Issued by the Court in Civil Cases.” Dkt. No. 8.

5 Although similar in some respects, the Eastern District’s form is significantly different

than the form used in this Court. Should plaintiff wish to obtain ECF access, he is

directed to properly complete and submit this Court's Pro Se Motion to Obtain ECF

Login.° Accordingly, it is recommended that plaintiff's motion to obtain ECF access is

denied with opportunity to submit of the appropriate form with this Court. Plaintiff is

advised that, if he chooses to file this Court's form and request to obtain ECF access,

that he must legibly provide all requested information.

I

lll. Conclusion

WHEREFORE, for the reasons set forth herein, it is hereby

ORDERED, that plaintiff's application to proceed IFP (Dkt. No. 2) is GRANTED, and it is

further

RECOMMENDED, that plaintiff's claims for monetary damages pursuant to

Title Ill of the ADA and claims for punitive damages pursuant to the NYSHRL be

DISMISSED WITH PREJUDICE AND WITHOUT LEAVE TO AMEND; and it is further

5 The Northern District pro se motion to obtain ECF login and password form can be found at the

following url:

https:/Awww.nynd.uscourts.gov/sites/nynd/files/forms/Pro_Se_Motion_Obtain_ECF_Login.pdf.

18

RECOMMENDED, that the following of plaintiff's claims be DISMISSED

WITHOUT PREJUDICE WITH LEAVE TO AMEND*: ADA Title II| and NYSHRL

intentional disability discrimination claims against the individual defendants; and ADA

Title Ill and NYSHRL claims based on failure to provide reasonable accommodations

and disparate treatment against all defendants; and it is further

o RECOMMENDED, that the following of plaintiff's claims proceed: ADA Title III

and NYSHRL claims for intentional discrimination against NYSARC but only insofar as

plaintiff seeks injunctive relief pursuant to Title III of the ADA and injunctive relief and/or

compensatory damages pursuant to the NYSHRL; and it is further

RECOMMENDED, that plaintiff's state law claims be DISMISSED WITH

PREJUDICE AND WITHOUT OPPORTUNITY TO AMEND as time-barred; and it is

| further

ORDERED, that plaintiff's motion to proceed as an anonymous plaintiff is

DENIED WITHOUT OPPORTUNITY TO RENEW, and it is further

ORDERED, that plaintiff's request to obtain ECF access is DENIED with

opportunity to file the appropriate form with the Court within thirty (80) days from the

date of this Report-Recommendation & Order; and it is further

RECOMMENDED, that should the District Judge adopt this Report-

Recommendation and Order, plaintiff be given thirty (30) days from the date of the

Order adopting this Report-Recommendation and Order to file an amended complaint,

Plaintiff is advised that an amended 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 amended complaint must include all of the allegations against each of the

defendants against whom the case is going forward so that the amended complaint may stand alone as

the sole complaint in this action.

19

and if plaintiff does not file an amended complaint, (1) it will be deemed as an

abandonment of any claims for which leave to replead has been granted and will result

in judgment being entered against plaintiff on these claims without further order by the

Court, and (2) the matter be returned to the Magistrate Judge for service of the original

complaint for any claims that were permitted to proceed in the original complaint, with al

| other claims deemed stricken.

IT IS SO ORDERED.

Pursuant to 28 U.S.C. § 636(b)(1), plaintiff has 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. Roldan v. Racette, 984 F.2d 85,

m| 89 (2d Cir. 1993) (citing Small v. Sec’y of Health and Human Servs., 892 F.2d 15 (2d

Cir. 1989)); see also 28 U.S.C. § 636(b)(1); FED. R. Civ. P. 72 & 6(a).’

Dated: September 28, 2020

Albany, New York

Christian F. Hummel

U.S. Magistrate Judge

rr!

7 If you are proceeding pro se and are served with this Report-Recommendation & Order by mail, three

(3) additional days will be added to the fourteen (14) day period, meaning that you have seventeen (17)

days from the date the Report-Recommendation & Order 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. Id. § 6(a)(1)(c).

20