noting that even after Twombly, the court “remain[s] obligated to construe a pro se complaint liberally”
How later courts described this case
- noting that even after Twombly, the court “remain[s] obligated to construe a pro se complaint liberally”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 23-CV-7257 (RER) (LB)
_____________________
NICKIE KANE
VERSUS
CITY OF NEW YORK; NEW YORK CITY
TRANSIT; MTA BUS COMPANY1
___________________
MEMORANDUM & ORDER
December 26, 2024
___________________
RAMÓN E. REYES, JR., United States District Judge:
Plaintiff Nickie Kane timely filed this pro se amended complaint pursuant to the American
with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and the Fourteenth Amendment’s Equal
Protection Clause. (ECF No. 9 (“Am. Compl.”). The Court previously granted Plaintiff leave to
file an Amended Complaint against only Defendant MTA-New York City Transit.2 (ECF Nos. 4,
8 (granting Plaintiff an extension until August 8, 2024, to file)). Plaintiff has already been granted
in forma pauperis status. (ECF No. 4 at 1). For the reasons discussed below, the amended
complaint is DISMISSED.
1 The Court notes that the proper name of this defendant is the Metropolitan Transportation Authority
(“MTA”)-New York City Transit.
2 Even though Plaintiff was not granted leave to amend the claims against the other Defendants, the
Court notes that Plaintiff’s amended complaint still fails to state a claim against the City of New York pursuant to
42 U.S.C. § 1983, because she does not allege any unconstitutional policy or custom attributable to New York
City that would confer municipal liability. (See ECF No. 4 at 3–4); Torraco v. Port Auth. of N.Y. & N.J., 615 F.3d
129, 140 (2d Cir. 2010). All claims against the City of New York remain dismissed pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii).
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STANDARD OF REVIEW
A complaint must plead “enough facts to state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 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.” Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d Cir. 2011)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Although all allegations contained in the
complaint are assumed to be true, this tenet is “inapplicable to legal conclusions.” Iqbal, 556
U.S. at 678. In reviewing a pro se complaint, the court must be mindful that a plaintiff’s pleadings
should be held “to less stringent standards than formal pleadings drafted by lawyers.” Erickson
v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 104–
105 (1976)); see Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (noting that even after Twombly,
the court “remain[s] obligated to construe a pro se complaint liberally”).
Nevertheless, under 28 U.S.C. § 1915(e)(2)(B), a district court shall dismiss an in forma
pauperis action where it is satisfied that the action “(i) is frivolous or malicious; (ii) fails to state
a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is
immune from such relief.”
DISCUSSION
In the amended complaint, Plaintiff alleges that on or about August 19, 2021, she
attempted to board a bus with her service dog” but the bus driver “became aware of the service
animal” and “refused entry of the Plaintiff due to her service animal . . . [b]y immediately trying
to close the bus doors trapping the Plaintiff in the doors. He then opened the doors after noticing
her stuck. The Plaintiff then boarded the bus.” (Am. Compl. at ¶¶ 9–11). When the bus driver
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subsequently “stated no dogs allowed on the bus,” Plaintiff “informed him her dog was a service
animal” and “sat[,] insisting she had a right to be on the bus with her service animal[,] and
continued on her journey.” (Id. at ¶ 12). The amended complaint expands paragraph 12 to add
new allegations that the bus driver failed to ask the “two questions” a place of public
accommodation must ask pursuant to the ADA, NYSHRL, and NYCHRL to assess whether an
animal is a service animal “before they can refuse service”: “Is that a service animal?” and “What
tasks [are] it trained to do?” (Id.) Plaintiff alleges that had the bus driver “been properly trained
he would have asked[ed] the two questions and not have closed the door on her.” (Id.) The
added details in paragraphs 9–11 insinuate that the bus driver closed the doors on Plaintiff
because of her service animal and in order to refuse entry to Plaintiff and her service animal,
and the new allegations in paragraph 12 appear intended to bolster Plaintiff’s common law
negligence claim for failure to train. (Id. at ¶¶ 9–12).
Despite these additions, however, Plaintiff has not cured the main defect of her original
complaint: that she was not actually prevented from riding the MTA bus because of her service
dog. (Id. at ¶ 12). To the contrary, Plaintiff clearly states that once she informed the bus driver
that her dog was a service animal, she “sat . . . and continued on her journey.” (Id.) Therefore, it
does not appear that Plaintiff suffered any constitutional or ADA violation; and thus, the amended
complaint fails to state a claim on which relief may be granted and is dismissed pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii).
The Court declines to exercise supplemental jurisdiction over any potential state law
claims. See Kolari v. N.Y.-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006) (“Subsection
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(c) of § 1367 ‘confirms the discretionary nature of supplemental jurisdiction . . . .” (quotation
omitted)).
CONCLUSION
As set forth herein, the amended complaint is dismissed with prejudice. 28 U.S.C.
§ 1915(e)(2)(B)(ii). The Court declines to exercise supplemental jurisdiction. No summons shall
issue at this time and all further proceedings shall be stayed. Plaintiff has already been granted
leave to amend her complaint once and is denied leave to amend a second time on the basis of
futility. See Holmes v. Grubman, 568 F.3d 329, 334 (2d Cir. 2009). The Clerk of Court is directed
to mail a copy of this Memorandum and Order to Plaintiff and to enter judgment dismissing the
case with prejudice. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would
not be taken in good faith and therefore in forma pauperis status is denied for purpose of an
appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.
/s/ Ramón E. Reyes, Jr.
RAMÓN E. REYES, JR.
United States District Judge
Dated: December 26, 2024
Brooklyn, New York
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