Gordon

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

JAMEEL GORDON,

Plaintiff,

23-CV-640-LJV

v. DECISION & ORDER

THE STATE UNIVERSITY AT BUFFALO

et al.,

Defendants.

On July 5, 2023, the pro se plaintiff, Jameel Gordon, filed a complaint asserting

claims under 42 U.S.C. § 1983 and Title VI of the Civil Rights Act of 1964 (“Title VI”).

Docket Item 1. The Court granted Gordon permission to proceed in forma pauperis,

screened his complaint under 28 U.S.C. § 1915(e)(2), and gave him leave to amend.

Docket Item 3. Gordon then filed an amended complaint alleging that the defendants—

Blackstone Incorporated (“Blackstone”), the State University of New York at Buffalo

(“UB”), and a group of individuals and entities associated with UB—violated his

Fourteenth Amendment rights. Docket Item 4. And the Court then screened the

amended complaint, dismissing the claims against three defendants—Empire State

Development, 43 North, and NY Ventures—and allowing the claims against the

remaining defendants to proceed. Docket Item 5.

On May 28, 2024, Blackstone moved to dismiss the amended complaint for

failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Docket Item 11.

Gordon responded, Docket Item 16, and filed a cross-motion to amend that included a

proposed second amended complaint adding The Blackstone Charitable Foundation as

a defendant, Docket Item 17 at 16-17, 20.1 After Blackstone replied in further support of

its motion to dismiss and opposed the cross-motion to amend, Docket Item 19, Gordon

filed a sur-reply,2 Docket Item 20.

On January 15, 2025, defendants Hadar Borden and UB (the “UB defendants”)

moved to dismiss the amended complaint for insufficient service of process and for

failure to state a claim under Federal Rules of Civil Procedure 12(b)(5) and 12(b)(6),

respectively. Docket Item 25. Gordon opposed the motion, Docket Item 27; Borden

and UB replied, Docket Item 28; and Gordon filed another sur-reply,3 Docket Item 30.

1 Page numbers in docket citations refer to ECF pagination.

2 Blackstone moved to strike Gordon’s sur-reply. Docket Item 22. But in light of

Gordon’s pro se status, the Court denied the motion to strike. Docket Item 24.

3 Gordon also moved to recuse the New York Attorney General, whose office

represents the UB defendants, and to appoint independent counsel, alleging that there

is an “irreconcilable conflict because the Attorney General cannot objectively defend

state officials accused of discrimination while also ensuring the fair administration of

justice” and that it is not the Attorney General’s duty to “shield state actors from

accountability for constitutional violations.” Docket Item 29 at 2. But a plaintiff’s “vague,

general allegations that the Attorney General’s Office’s representation conflicts [with] its

mission are insufficient to justify the strongly disfavored relief of disqualification.” Weiss

v. City Univ. of N.Y., 2019 WL 5891894, at *5 (S.D.N.Y. Nov. 10, 2019). Indeed, the

Attorney General is statutorily obligated to “defend all actions and proceedings in which

the state is interested.” N.Y. Exec. Law § 63(1). And state employees are generally

entitled to representation by the Attorney General in proceedings “arising out of any

alleged act or omission which occurred or is alleged in the complaint to have occurred

while the employee was acting within the scope of his public employment or duties; or

which is brought to enforce . . . [section 1983] of title forty-two of the United States

code.” N.Y. Pub. Off. Law § 17(2)(a). Therefore, “implementing [Gordon]’s theory of

the law would result in the Attorney General’s Office being unable to ever defend state

employees against allegations of wrongdoing, rendering the statute[s] meaningless.”

See Weiss, 2019 WL 5891894, at *5. The Court therefore denies Gordon’s motion to

recuse the New York Attorney General.

For the reasons that follow, the Court grants Blackstone’s motion to dismiss but

denies the UB defendants’ motion to dismiss. The Court also denies Gordon’s motion

to amend.

BACKGROUND4

In August 2022, Gordon was accepted as a student at UB. Docket Item 4 at 3.

At that time, he learned about the University’s “entrepreneurship program,” called the

“Blackstone Launchpad Program.” Id. “[M]embers of [Gordon’s] academic department”

suggested that he participate in the Blackstone Launchpad Program because he “was

interested in launching a business venture while completing [his] degree.” Id.

Gordon therefore met with Borden, the Director of the Blackstone Launchpad

Program. Id. But at that meeting, Borden told Gordon that he was “‘too advanced’ of an

entrepreneur for her to work with.” Id. Nevertheless, Borden “invited [Gordon] to

participate in the program throughout the semester,” which Gordon did. Id.

Through the Blackstone Launchpad Program, Gordon engaged in “continued . . .

networking” with members of the UB and broader Buffalo communities. Id. Eventually,

he “launch[ed] and hous[ed] [his] business venture within . . . the University’s Baird

Research Center,” which was overseen by defendant Rick Gardner. Id.

4 The Court takes these facts from the amended complaint. Docket Item 4. On a

motion to dismiss under Rule 12(b)(6), the Court accepts all factual allegations as true

and draws all reasonable inferences in favor of the plaintiff. See Trs. of Upstate N.Y.

Eng’rs Pension Fund v. Ivy Asset Mgmt., 843 F.3d 561, 566 (2d Cir. 2016).

Gordon “hope[d] [to] receiv[e] funding” and assistance with “further development”

for his business venture through the UB Regional Institute. Id. But when he tried to

connect with Laura Quebral, who worked at the Regional Institute, his “communication

was intercepted by [defendant] Keiah Shauku[,] a program director with the Regional

Institute.” Id. Gordon met with Shauku and “shared more about [his] business venture,”

which he likened to Google. Id. But Shauku responded that the founders of Google

“came from communities with deep pockets.” Id. Gordon was “surprised” but “not

discouraged” by Shauku’s statement. Id.

As Gordon “continued to develop [his] venture independent[] of” UB, he

encountered “discrimination and discriminatory actions.” Id. For example, “Borden and

her team” at the Blackstone Launchpad Program used the “slogan, ‘This is what an

entrepreneur looks like,’” and that campaign “centered predominantly around East

Indian, white, and female students.” Id. The slogan also was used to feature a white

male entrepreneur, Dominic LaVigne. Id. at 3-4. Gordon, who is a Black man, was told

that “perhaps [he] should locate [his] business” in the “predominantly [B]lack

neighborhoods on the East Side of Buffalo and off the [UB] campus.” Id. at 4.

Nevertheless, Gordon continued to develop his business venture. Id. He was

committed to “remain[ing] independent” of UB, and he “intended to develop [his] venture

as a family business.” Id. But in doing so, he “experienced additional obstruction and

discrimination.” Id.

Gordon was invited “to join the Empire State Development and 43[ ]North at a ‘0

to 1’ – Investment & Resources for Startups event” and to “meet with members of NY

Ventures and the Division of Science, Technology, and Innovation of New York State.”

Id. But Gordon “declin[ed] the invit[ation] because [he] had no interest in working with

. . . th[o]se entities.” Id. He then was “completely blocked out of the entirety of the

University’s Entrepreneurship ecosystem and [its] funding.” Id. And after he was

denied “additional support” and “additional funding,” Gordon was told “by members of

the Business Entrepreneurship Partnership department that [his] company had

‘graduated.’” Id.

On July 5, 2023, Gordon commenced this action. Docket Item 1. He believes

that he was “barred from continuing [his business’s development] through [UB]’s

ecosystem because [he] refused to work with [UB’s] business partners and wanted to

continue [his business’s] development with [his] own selected partners as a family

business.” Docket Item 4 at 4. He alleges that he will “only [be] able to participate in

economic development in the [Buffalo] region” if he works with the defendants “on their

terms.” Id. And he alleges that the defendants’ actions are a “gross and inherent

violation of his [F]ourteenth [A]mendment rights to be able to develop his family

business freely without . . . obstruction and discrimination.” Id.

LEGAL PRINCIPLES

“A Rule 12(b)(5) motion is the proper vehicle for challenging the mode of delivery

or the lack of delivery of the summons and complaint.” Jackson v. City of New York,

2015 WL 4470004, at *4 (S.D.N.Y. Jun. 26, 2015) (citation and internal quotation marks

omitted). “In deciding a Rule 12(b)(5) motion, a Court must look to [Federal] Rule [of

Civil Procedure] 4, which governs the content, issuance, and service of a summons.”

Deluca v. AccessIT Grp., Inc., 695 F. Supp. 2d 54, 64 (S.D.N.Y. 2010). On a motion to

dismiss, “the plaintiff bears the burden of establishing that service was sufficient.”

Ahluwalia v. St. George's Univ., LLC, 63 F. Supp. 3d 251, 260 (E.D.N.Y. 2014) (citation

and internal quotation marks omitted), aff’d, 626 F. App’x 297 (2d Cir. 2015). And the

Court can consider information outside the pleadings to determine whether service was

sufficient. Wilson v. Cuomo, 2022 WL 4644695, at *3 (E.D.N.Y. Aug. 28, 2022). Courts

must resolve issues related to insufficient service of process before addressing any

arguments on the merits because “[b]efore a federal court may exercise personal

jurisdiction over a defendant, the procedural requirement of service of summons must

be satisfied.” Omni Cap. Int’l, Inc. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987).

“To survive a [Rule 12(b)(6)] motion to dismiss, 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 Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).

“When there are well-pleaded factual allegations [in the complaint], a court should

assume their veracity and then determine whether they plausibly give rise to an

entitlement to relief,” but that presumption is not afforded to “legal conclusions.” Id. at

678-79. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks

for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting

Twombly, 550 U.S. at 556).

DISCUSSION

I. BLACKSTONE’S MOTION TO DISMISS

“To state a valid claim under 42 U.S.C. § 1983, the plaintiff must allege that the

challenged conduct (1) was attributable to a person acting under color of state law, and

(2) deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or

laws of the United States.” Whalen v. County of Fulton, 126 F.3d 400, 405 (2d Cir.

1997) (citing Eagleston v. Guido, 41 F.3d 865, 875-76 (2d Cir. 1994)). “While a

complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual

allegations, a plaintiff’s obligation to provide the grounds of his entitle[ment] to relief

requires more than labels and conclusions, and a formulaic recitation of the elements of

a cause of action will not do.” Twombly, 550 U.S. at 555 (citations and internal

quotation marks omitted). The complaint must at least “allow[] the court to draw the

reasonable inference that the defendant is liable.” Iqbal, 556 U.S. at 678.

Blackstone argues that the action must be dismissed against it because (1) the

amended complaint made no allegations against it, (2) Blackstone is not the same entity

as the Blackstone Launchpad Program that Gordon takes issue with, and (3) Gordon

has not stated a claim under section 1983. Docket Item 11-1 at 9-10.

The amended complaint does not make a single factual allegation concerning

Blackstone. See generally Docket Item 4. In fact, Gordon “acknowledges the

distinction between Blackstone and [UB]’s Blackstone Launchpad Program” but argues

that the motion to dismiss should be denied because “[t]he amended complaint includes

the actions of entities associated with Blackstone Inc.” Docket Item 16 ¶ 3. It is unclear

from the amended complaint, however, how Blackstone is “associated” with the other

parties. See generally Docket Item 4.

Blackstone asserts that “[UB]’s Blackstone Launchpad Program, The Blackstone

Charitable Foundation, and . . . Blackstone Inc. are separate, distinct entities” and that

UB’s Blackstone Launchpad Program is not administered or funded by Blackstone Inc.

Docket Item 11-1 at 10; see also Docket Item 11-4 at 2; Docket Item 11-5 at 2.5 And

Gordon agrees that it is The Blackstone Charitable Foundation—not Blackstone—that

funds UB’s Blackstone Launchpad. See Docket Item 16 at 2.

Because the amended complaint includes no factual allegations against

Blackstone—indeed, because it does not say anything about how Blackstone played

any role in this case—Blackstone is entitled to dismissal.

Moreover, “[i]n order to state a claim under [section] 1983, a plaintiff must allege

that he was injured by either a state actor or a private party acting under color of state

law.” Ciambriello v. County of Nassau, 292 F.3d 307, 323 (2d Cir. 2002). And the

complaint says nothing about how Blackstone is either of those.

The Second Circuit has “identified three main tests to determine” whether an

otherwise private entity, such as Blackstone, engaged in state action:

(1) whe[ther] the entity acts pursuant to the coercive power of the state or

is controlled by the state (‘the compulsion test’); (2) whe[ther] the state

provides significant encouragement to the entity, the entity is a willful

participant in joint activity with the state, or the entity’s functions are

entwined with state policies (‘the joint action test’ or ‘close nexus test’); and

5 Blackstone asks the Court to take judicial notice of two documents: the State of

Delaware Entity Details for The Blackstone Charitable Foundation, Docket Item 11-4,

and the State of Delaware Entity Details for Blackstone Inc., Docket Item 11-5. But the

Court need not consider that request because Gordon agrees that The Blackstone

Charitable Foundation—and not Blackstone Inc.—funds the Launchpad program. See

Docket Item 16 at 2.

(3) whe[ther] the entity has been delegated a public function by the state

(‘the public function test’).

See Barrows v. Becerra, 24 F.4th 116, 135 (2d Cir. 2022) (alterations omitted) (quoting

Fabrikant v. French, 691 F.3d 193, 207 (2d Cir. 2012)). “The fundamental question

under each test is whether the private entity’s challenged actions are ‘fairly attributable’

to the state.” Fabrikant, 691 F.3d at 207 (quoting Rendell-Baker v. Kohn, 457 U.S. 830,

838 (1982)). “A merely conclusory allegation that a private entity acted in concert with a

state actor does not suffice to state a [section] 1983 claim against the private entity.”

Ciambriello, 292 F.3d at 324.

As already discussed, the amended complaint contains no allegations regarding

Blackstone, much less allegations about how Blackstone acted in concert with the state.

See generally Docket Item 4. And Gordon’s opposition to the motion to dismiss states

only the conclusion that “the allegations in the amended complaint demonstrate that

Blackstone acted ‘under the color of law.’” Docket Item 16 at 2.

Because the amended complaint is devoid of any factual allegations regarding

Blackstone or the role it played in this case, the Court is unable to draw a “reasonable

inference that [Blackstone] is liable for the misconduct alleged.” See Iqbal, 556 U.S. at

678. And because the amended complaint says nothing about how Blackstone acted

under color of state law, there is no plausible claim that Blackstone is liable under

section 1983. Blackstone’s motion to dismiss therefore is granted. But in light of

Gordon’s pro se status, he may amend his complaint to state a claim against

Blackstone if he is able to do so. In any amended complaint, Gordon must clearly

identify how Blackstone violated his rights while acting under the color of state law.

II. THE UB DEFENDANTS’ MOTION TO DISMISS

A. Service of Process

UB and Borden first contend that this Court lacks personal jurisdiction over them

because they were not properly served. Docket Item 25-1 at 11-13. More specifically,

they argue that they “were not served by any process described under [Rule] 4(e)(2)” or

under New York C.P.L.R. § 308(2). Id. at 12 (emphasis omitted). Gordon does not

dispute this; indeed, he does not address the defendants’ insufficient service argument

at all. See generally Docket Item 27.

Federal Rule of Civil Procedure 4 provides the methods by which a plaintiff may

serve a defendant. An individual may be served by (1) “delivering a copy of the

summons and of the complaint to the individual personally”; (2) “leaving a copy of each

at the individual’s dwelling or usual place of abode with someone of suitable age and

discretion who resides there”; (3) “delivering a copy of each to an agent authorized by

appointment or by law to receive service of process”; or (4) “following state law for

serving a summons . . . in the state where the district court is located or where service is

made.” Fed. R. Civ. P. 4(e).

New York law authorizes service of process by two methods not explicitly

included in Rule 4—what are commonly called “substituted service” and “nail-and-mail”

service. See Smith v. Smith, 2020 WL 6334794, at *2 (E.D.N.Y. Oct. 29, 2020). A

plaintiff may effect substituted service “by delivering the summons . . . to a person of

suitable age and discretion at the actual place of business, dwelling place[,] or usual

place of abode of the person to be served and by [] mailing the summons to the person

to be served at his or her last known residence or . . . actual place of business.” N.Y.

C.P.L.R. § 308(2). A plaintiff may effect nail-and-mail service by “affixing the summons

to the door of [] the actual place of business, dwelling place[,] or usual place of abode

. . . of the person to be served” and mailing the summons to the person to be served “at

his or her last known residence or . . . actual place of business.” Id. § 308(4).

The UB defendants contend that they were not served by any of the means

provided in Rule 4(e)(2). Docket Item 25-1 at 12. They add that Gordon cannot show

that “he or anyone [else] mailed the [s]ummons and [c]omplaint to the[ir] actual place of

business.” Id. at 13. In fact, they claim that “no other attempts at proper service” have

been made since Gordon filed the amended complaint, id., despite this Court’s warning

that it was Gordon’s “responsibility to inquire of the Marshals . . . as to whether service

ha[d] been made” and that failure to do so could result in dismissal, see Docket Item 9.

Because the “burden of establishing that service was sufficient” is on the plaintiff,

Ahluwalia, 63 F. Supp. 3d at 260, and because Gordon has not said anything to rebut

the UB defendants’ assertion that they have not been served, the Court presumes that

service was insufficient.

If a plaintiff “shows good cause” for the failure to serve a defendant, however,

“the court must extend the time for service for an appropriate period.” Fed. R. Civ. P.

4(m). In evaluating good cause, a court considers “the plaintiff’s reasonable efforts to

effect service.” George v. Pro. Disposables Int’l, Inc., 221 F. Supp. 3d 428, 432-33

(S.D.N.Y. 2016) (citation omitted). And “[e]ven in the absence of good cause, . . .

district courts have discretion to grant extensions of time to effect proper service.” Id. at

433.

But courts will not afford plaintiffs an opportunity to correct inadequate service

when such exercise would be futile. See Black v. Vitello, 841 F. App’x 334, 336 (2d Cir.

2021) (summary order) (holding that the district court did not err in dismissing the case

with prejudice because in addition to plaintiff’s failure to timely serve defendants, there

was no set of facts that would support her claims). Courts “may dismiss a case with

prejudice where ‘[t]he problem with [the plaintiff’s] causes of action is substantive’ and

‘better pleading will not cure it.’” Id. (alterations in original) (quoting Cuoco v. Moritsugu,

222 F.3d 99, 112 (2d. Cir. 2000)).

As explained below, under the liberal pleading standard afforded to pro se

plaintiffs, Gordon’s claims against the UB defendants survive their motion to dismiss.

Therefore, giving Gordon additional time to serve those defendants would not be futile.

Gordon has 90 days from the entry of this decision and order to effect proper service.

If, consistent with Rule 4, Gordon serves the summons and complaint within that time,

any defendants who have been served shall answer or otherwise respond to the

complaint as provided in Federal Rule of Civil Procedure 12(a). If Gordon fails to effect

proper service within 90 days, then the UB defendants—and any other defendants who

choose to do so—may move to dismiss on that basis.6

B. Standing

Article III of the United States Constitution limits the jurisdiction of federal courts

to “Cases” and “Controversies.” U.S. Const. art. III, § 2. “For there to be a case or

controversy under Article III, the plaintiff must have a ‘personal stake’ in the case—in

6 The remaining defendants—The State University of New York, Gardener,

Shauku, and the UB Regional Institute—have not answered or responded to the

amended complaint in any way. It therefore may be that they also have not been

properly served. Gordon has 90 days to effect proper service on any and all defendants

or he risks dismissal of this action against them.

other words, standing.” TransUnion LLC v. Ramirez, 594 U.S. 413, 423 (2021) (quoting

Raines v. Byrd, 521 U.S. 811, 819 (1997)). As the Second Circuit recently explained,

“[t]he doctrine of standing gives meaning to the[] constitutional limits[] by requiring a

plaintiff to allege such a personal stake in the outcome of the controversy as to warrant

his invocation of federal[ ]court jurisdiction and to justify exercise of the court’s remedial

powers on his behalf.” Antonyuk v. James, 120 F.4th 941, 976 (2d Cir. 2024) (some

internal quotation marks omitted) (quoting Knife Rights, Inc. v. Vance, 802 F.3d 377,

383 (2d Cir. 2015)); see also TransUnion, 594 U.S. at 430-31 (stating that the plaintiff—

“[a]s the party invoking federal jurisdiction”—“bear[s] the burden of demonstrating . . .

standing”).

“[T]o establish standing, a plaintiff must show” three things: “(i) that he suffered

an injury in fact that is concrete, particularized, and actual or imminent; (ii) that the injury

was likely caused by the defendant; and (iii) that the injury would likely be redressed by

judicial relief.” TransUnion, 594 U.S. at 423 (citing Lujan v. Defs. of Wildlife, 504 U.S.

555, 560-561 (1992)). “A plaintiff proceeding against multiple defendants must

establish standing as to each defendant and each claim.” Holland v. JPMorgan Chase

Bank, N.A., 2019 WL 4054834, at *6 (S.D.N.Y. Aug. 28, 2019) (citing Mahon v. Ticor

Title Ins. Co., 683 F.3d 59, 65-66 (2d Cir. 2012)). The UB defendants say that Gordon

cannot establish any of the three elements. Docket Item 25-1 at 14-15.

“To establish injury in fact, a plaintiff must show that he . . . suffered ‘an invasion

of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or

imminent, not conjectural or hypothetical.’” Spokeo, Inc. v. Robins, 578 U.S. 330, 339

(2016). “[T]o be ‘particularized,’ [an injury] ‘must affect the plaintiff in a personal and

individual way.’” Id. (citing Lujan, 504 U.S. at 560 n.1).

The UB defendants argue that “[n]one of the facts show that [Gordon] suffered

any real harm” because the “facts are merely conclusory allegations and are not

specific.” Docket Item 25-1 at 15. They add that Gordon “has not sufficiently pleaded a

legally protected interest” because he is not “entitled to any property interest” from

them. Id. at 14.

But construing the amended complaint liberally, see Triestman v. Fed. Bur. of

Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (submissions of a pro se litigant must be

construed liberally and interpreted to raise the strongest arguments that they suggest),

Gordon alleges that he was injured by the discriminatory practices of UB and Borden—

more specifically, by their refusing to provide funding and other opportunities for

Gordon’s business venture because he is Black while funding and promoting students

of other races and genders. Docket Item 4 at 3-4. The UB defendants may well be

correct that Gordon is not entitled to funding for his business venture, Docket Item 25-1

at 14, but even so, he has the right to be free from discrimination with respect to his

participation in UB’s programs, see 42 U.S.C. § 2000d. Gordon pleads that he has a

“[F]ourteenth [A]mendment right[] to be able to develop [his] family business freely

without the obstruction and discrimination” of the defendants, and he alleges that the

UB defendants have abridged that right. Docket Item 4 at 4. Especially for a pro se

plaintiff, that is enough at the pleading stage.7

7 For the same reasons, the UB defendants’ argument that the action must be

dismissed because Gordon “does not have a constitutional right to a business plan” also

fails. Docket Item 25-1 at 16. Construing the amended complaint liberally, Gordon

To show the second element, sometimes called “traceability,” “the plaintiff must

‘demonstrate a causal nexus between the defendant’s conduct and the injury.’”

Rothstein v. UBS AG, 708 F.3d 82, 91 (2d Cir. 2013) (quoting Heldman v. Sobol, 962

F.2d 148, 156 (2d Cir.1992)); see also Dep’t of Educ. v. Brown, 600 U.S. 551, 561

(2023) (holding that for plaintiff’s injury to “be ‘fairly traceable to the challenged action of

the defendant,’ . . . ‘there must be a causal connection between the injury and the

conduct complained of’” (quoting Lujan, 504 U.S. at 561)). The UB defendants argue

that to the extent Gordon has been injured, he cannot “show[] how an injury is traced

directly to” them. Docket Item 25-1 at 15. They claim that the allegation that

“defendants” discriminated against him is insufficient to trace the alleged discrimination

to them specifically. Id.

But the amended complaint, read liberally, certainly alleges an injury traceable to

the UB defendants. Gordon alleges that the Blackstone Launchpad Program is UB’s

“entrepreneurship program,” that Borden is its director, and that Gordon was “blocked

out of [UB]’s [e]ntrepreneurship ecosystem and their [sic] funding.” Docket Item 4 at 3-

4. He explicitly says that Borden herself participated in the discrimination, including by

the campaign called “This is what an entrepreneur looks like” which featured “East

Indian, white, and female students.” Id. at 3. Again, that is enough at the pleading

stage.

The third element, called “redressability,” requires “a non-speculative likelihood

that the injury can be remedied by the requested relief.” W.R. Huff Asset Mgmt. Co.,

alleges that he has a right to be free from discrimination in his participation in UB’s

entrepreneurship program, not simply that he has a constitutional right to develop his

business. Docket Item 4 at 4.

LLC v. Deloitte & Touche LLP, 549 F.3d 100, 106-07 (2d Cir. 2008). “There is no

redressability where such depends on an independent actor who retains ‘broad and

legitimate discretion [that] the courts cannot presume either to control or to predict.’”

Neary v. Weichert, 489 F. Supp. 3d 55, 67 (E.D.N.Y. 2020) (quoting ASARCO, Inc. v.

Kadish, 490 U.S. 605, 615 (1989)).

The UB defendants argue that Gordon cannot establish redressability because “it

is not likely that the Court will issue a favorable decision to redress the injury.” Id. But

likelihood of success is not the standard to establish standing; rather, the question is

whether the injury itself “can be remedied by the requested relief.” See W.R. Huff Asset

Mgmt. Co., LLC, 549 F.3d at 107. Gordon seeks damages, Docket Item 1 at 68, an

appropriate remedy given the allegation that Gordon was denied funding for his

business venture.

In sum, viewing the complaint in the light most favorable to Gordon, he has

pleaded facts sufficient to establish standing against the UB defendants.

C. Racial Discrimination Claim

The UB defendants also argue that Gordon has not “allege[d] sufficient facts to

establish a[] [Fourteenth] Amendment violation because of his race.” Docket Item 25-1

at 18-19.

To begin, most of the caselaw that the UB defendants cite addresses what a

plaintiff must “prove” to be successful on an equal protection claim, not what must be

8 Gordon’s amended complaint, Docket Item 4, is the operative pleading in this

action. Gordon, however, does not request specific relief in his amended complaint. In

light of Gordon’s pro se status the Court will consider the request for relief from the

original complaint.

pleaded to survive a motion to dismiss. See id. at 19-20. Gordon does not need to

“prove” anything at this stage; he needs only to allege facts sufficient to plead a

plausible claim. See Iqbal, 556 U.S. at 678. So the support that the UB defendants cite

for their argument is inapposite. And, in fact, Gordon’s allegations are sufficient to

allege a section 1983 equal protection claim.

“Section 1983 itself 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) (citing City of Okla. City v. Tuttle, 471 U.S. 808, 816 (1985)).

“To state a valid claim under [section] 1983, the plaintiff must allege that the challenged

conduct (1) was attributable to a person acting under color of state law, and (2) deprived

the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the

United States.” Whalen, 126 F.3d at 405. “[T]o maintain an equal protection claim, a

plaintiff must ‘show adverse treatment of individuals compared with other similarly

situated individuals and that such selective treatment was based on impermissible

considerations such as race, religion, intent to inhibit or punish the exercise of

constitutional rights, or malicious or bad faith intent to injure a person.’” Terrill v.

Windham-Ashland-Jewett Cent. Sch. Dist., 176 F. Supp. 3d 101, 110 (N.D.N.Y. 2016)

(quoting Miner v. Clinton County, 541 F.3d 464, 474 (2d Cir. 2008)).

1. Claims against UB

UB argues that its use of the “This is what an entrepreneur looks like” slogan

partnered with a campaign featuring “an ‘East Indian and White’ individual . . . [is] not

enough to support a claim of intentional race discrimination.” Docket Item 25-1 at 20.

And that may be correct. But Gordon alleges more than that.

Gordon alleges that UB employees made racially driven comments dissuading

him from growing his business venture. Docket Item 4 at 3. For instance, when Gordon

likened his business venture to Google, Shauku, “a program director with the [UB]

Regional Institute,” told him that the founders of Google “came from communities with

deep pockets.” Id. Along the same lines, Gordon says that he was encouraged to

“locate [his] business [in] the predominantly [B]lack neighborhoods on the East Side of

Buffalo and off [UB’s] campus.” Id. at 4. Gordon also says that he was denied support,

opportunities, and funding from UB programs because of his race. Id. at 3-4. Again,

that is sufficient to plead a plausible claim for race discrimination, and UB’s motion to

dismiss Gordon’s race discrimination claims is therefore denied.

2. Claims against Borden

“A prerequisite to a claim for damages under [s]ection 1983 . . . is a defendant’s

‘personal involvement’ in the alleged constitutional violation.” Carwell v. City of New

York, 2023 WL 419182, at *5 (S.D.N.Y. Jan. 26, 2023) (quoting Provost v. City of

Newburgh, 262 F.3d 146, 154 (2d Cir. 2001)). To show such involvement, “the plaintiff

must directly plead and prove that ‘each [g]overnment-official defendant, through the

official’s own individual actions, has violated the Constitution.’” Tangreti v. Bachmann,

983 F.3d 609, 612 (2d Cir. 2020) (quoting Iqbal, 556 U.S. at 676). “A defendant in a

[section] 1983 action may not be held liable for damages for constitutional violations

merely because he held a high position of authority.” Victory v. Pataki, 814 F.3d 47, 67

(2d Cir. 2016) (alteration, citation, and internal quotation marks omitted. Under section

1983, personal involvement

for state actors in their personal capacities may be shown through action

that causes a deprivation of rights as well as when a supervisor: (1) fails to

remedy the violation after having been informed of it; (2) creates or tolerates

a policy or custom under which the violation occurred, (3) was grossly

negligent in supervising subordinates who commit the violation; or (4) fails

to act on information indicating that the violation was occurring.

Gibson v. County of Suffolk, 2022 WL 1063017, at *12 (E.D.N.Y. Feb. 18, 2022).

The amended complaint alleges that Borden, the Director of UB’s Blackstone

Launchpad Program, met with Gordon and invited him to participate in the program.

Docket Item 4 at 3. But as Gordon worked with Borden, the presence of “discrimination

and discriminatory actions” became “clear.” Id. Gordon points to one specific example:

Borden’s promotion of the slogan “This is what an entrepreneur looks like” which

involved a campaign featuring “predominantly . . . East Indian, white, and female

students.” Id. The campaign was “centered around one particular entrepreneur, . . . a

white male” who was featured at programming events. Id. at 4. In fact, Borden wore a

t-shirt bearing this slogan at a “programming event that highlighted” this entrepreneur.

Id. The amended complaint suggests that Borden favored students of certain races,

ethnic groups, and genders over others, and that Gordon, “[a]s a [B]lack man,” was

subject to “obstruction and discrimination” because of that. Id.

In light of those allegations, Gordon has sufficiently pleaded that Borden

“create[d] or tolerate[d] a policy or custom” that promoted the unfair treatment of Black

males in UB’s entrepreneurship program. See Gibson, 2022 WL 1063017, at *12.

Whether Gordon can sustain those claims is a question for another day. But for now,

Borden’s motion to dismiss the equal protection claim is denied.9

9 In their reply, the UB defendants contend that Gordon’s opposition brief

“attempts to add a new retaliation claim” to the amended complaint. See Docket Item

28 at 4; see also Docket Item 27 at 27 (Gordon discussing that retaliation is a

“[c]ommon [a]pplication” of section 1983). They argue that “[t]o the extent [Gordon] tries

D. Qualified Immunity

“The doctrine of qualified immunity shields officials from civil liability so long as

their conduct ‘does not violate clearly established statutory or constitutional rights of

which a reasonable person would have known.’” Mullenix v. Luna, 577 U.S. 7, 11

(2015) (per curiam) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). A right is

clearly established if it “is ‘sufficiently clear that every reasonable official would have

understood that [his actions] violate[d] that right.’” Id. (quoting Reichle v. Howards, 566

U.S. 658, 664 (2012)).

Qualified immunity is an affirmative defense that may result in dismissal under

Rule 12(b)(6) only “if the defense appears on the face of the complaint.” Pani v. Empire

Blue Cross Blue Shield, 152 F.3d 67, 74-75 (2d Cir. 1998). As such, it is rarely

appropriate to grant a motion to dismiss based on qualified immunity, and summary

judgment is usually the vehicle for such a ruling. See Barnett v. Mount Vernon Police

Dep’t, 523 F. App’x 811, 813 (2d Cir. 2013) (summary order) (“[A] defendant asserting a

qualified immunity defense on a motion to dismiss faces a formidable hurdle and is

usually not successful.” (alteration and internal quotation marks omitted)).

UB and Borden contend they are “entitled to qualified immunity” here. See

Docket Item 25-1 at 21. But as addressed above, Gordon has alleged plausible

constitutional violations: that he was denied certain opportunities and funding because

of his race. Taking Gordon’s allegations as true, “the Court cannot conclude that the . .

to assert a claim of retaliation, that claim must also fail.” Id. But Gordon “clarif[ies] that

no new claim has been introduced” and that he “has not amended the complaint or

asserted any additional causes of action.” Docket Item 30 at 1-2. As such, the Court

need not address the issue of whether Gordon may bring a retaliation claim or whether

such a claim is viable.

. defendants’ actions did not violate clearly established law, or that it was objectively

reasonable for them to believe their actions did not violate clearly established

law.” Watkins v. Town of Webster, 592 F. Supp. 3d 96, 127-28 (W.D.N.Y. 2022) citing

Barrella v. Village of Freeport, 43 F. Supp. 3d 136, 182 (E.D.N.Y. 2014) (finding that

qualified immunity cannot apply because “the law is well-settled that intentional

discrimination is illegal”), aff’d, 814 F.3d 594 (2d Cir. 2016). Therefore, the defendants

are not entitled to qualified immunity, at least for now.

III. MOTION TO AMEND

Gordon also moved to amend his amended complaint, and he has included a

proposed second amended complaint with that motion. Docket Item 17. In the

proposed second amended complaint, Gordon seeks to “include The Blackstone

Charitable Foundation . . . as an additional defendant.” Id. at 20.

Federal Rule of Civil Procedure 15(a)(2) provides that a “court should freely give

leave [to amend] when justice so requires.” This “permissive standard . . . is consistent

with [the Second Circuit’s] strong preference for resolving disputes on the merits.”

Loreley Financing (Jersey) No. 3. Ltd. v. Wells Fargo Sec., LLC, 797 F.3d 160, 190 (2d

Cir. 2015) (citation and internal quotation marks omitted). The decision “to grant or

deny leave to amend” is nevertheless committed to “the sound discretion of the district

court,” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007), and “[a]

district court has discretion to deny leave for good reason, including futility.” Id. “[T]he

standard for denying leave to amend based on futility is the same as the standard for

granting a motion to dismiss.” IBEW Loc. Union No. 58 Pension Tr. Fund & Annuity

Fund v. Royal Bank of Scotland Grp., PLC, 783 F.3d 383, 389 (2d Cir. 2015).

Blackstone argues that granting the motion to amend and adding The Blackstone

Charitable Foundation to this action would be futile because the proposed second

amended complaint does not state a plausible claim against The Blackstone Charitable

Foundation under section 1983. Docket Item 19 at 7-8. This Court agrees.

As noted above, to state a claim under section 1983 a “plaintiff must allege that

the challenged conduct (1) was attributable to a person acting under color of state law,

and (2) deprived the plaintiff of a right, privilege, or immunity secured by the Constitution

or laws of the United States.” Whalen, 126 F.3d at 405. “Because the United States

Constitution regulates only the [g]overnment, not private parties, a litigant claiming that

his constitutional rights have been violated must first establish that the challenged

conduct constitutes state action.” Fabrikant, 691 F.3d at 206 (quoting Flagg v. Yonkers

Sav. & Loan Ass’n, 396 F.3d 178, 186 (2d Cir. 2005)). And a private party “acts under

color of state law” and may incur liability under section 1983 only “when the private

actor is a willful participant in joint activity with the [s]tate or its agents.” Betts v.

Shearman, 751 F.3d 78, 84 (2d Cir. 2014) (citations and internal quotation marks

omitted). “A private actor can only be a willful participant in joint activity with the [s]tate

or its agents if the two share some common goal to violate the plaintiff’s rights.” Id. at

85 (citation and internal quotation marks omitted). “A merely conclusory allegation that

a private entity acted in concert with a state actor [will] not suffice.” Ciambriello, 292

F.3d at 324 (quoting Spear v. Town of West Hartford, 954 F.2d 63, 68 (2d Cir. 1992)).

Gordon alleges that The Blackstone Charitable Foundation “serves as the

funding entity for the Blackstone Launchpad [P]rogram, which is operated in

collaboration with Blackstone Inc.” Docket Item 17 at 20. The proposed second

amended complaint asserts that “[g]iven th[at] relationship and [The Blackstone

Charitable] Foundation’s integral role in the operation and funding of the Blackstone

Launchpad [P]rogram,” it is necessary to include them as a party to the action. Id.

Other than alleging that The Blackstone Charitable Foundation has a

“relationship” with UB’s Blackstone Launchpad Program and funds that program,

Gordon says nothing about how The Blackstone Charitable Foundation—or anyone

associated with it—violated his rights. See Docket Item 17 at 20. He does not allege

facts suggesting that the Blackstone Charitable Foundation acted jointly with UB to

discriminate against him or that they otherwise “share[d] some common goal to violate

[his] rights.” See Betts, 751 F.3d at 85. Nor does he say that anyone employed by or

associated with the foundation did anything that injured him. Instead, he alleges that

UB and those associated with it were the culprits.

What is more, it is unclear how simply providing funding to those who allegedly

violated Gordon’s rights deprived Gordon of any constitutional rights. And the only

allegation in the proposed second amended complaint regarding The Blackstone

Charitable Foundation was that it funded the UB Launchpad Program, see Docket Item

17 at 20, an organization that Gordon alleges discriminated against him. Without more,

that is insufficient to include The Blackstone Charitable Foundation as a defendant.

Because Gordon has failed to allege that The Blackstone Charitable Foundation

violated his rights while acting under the color of state law—indeed, because he has not

alleged how The Blackstone Charitable Foundation or anyone employed by it injured

him in any way—anything that the proposed second amended complaint would add to

the amended complaint is futile. Gordon’s motion to amend therefore is denied.

Nevertheless, in light of his pro se status, Gordon may again amend his complaint if he

believes that any Blackstone entity—or anyone employed by any Blackstone entity—did

anything that injured him.

CONCLUSION

For the reasons explained above, Blackstone’s motion to dismiss, Docket Item

11, is GRANTED. The UB defendants’ motion to dismiss, Docket Item 25, is DENIED,

and Gordon’s motion to amend the complaint, Docket Item 17, is DENIED as well. And

Gordon’s motion to recuse, Docket Item 29, is DENIED.

The Clerk of the Court shall terminate Blackstone Inc. as a defendant in this

action.

Gordon has 30 days from the date of this decision and order to amend his

complaint against any Blackstone entity that has done anything to injure him—that is,

something more than simply provide funding to those who Gordon alleges abridged his

rights.

Gordon has 90 days from the date of this decision and order to properly serve

any defendants who have not yet been served. All defendants have 21 days after they

have been served to answer, move against, or otherwise respond to the amended

complaint or second amended complaint

SO ORDERED.

Dated: March 31, 2026

Buffalo, New York

/s/ Lawrence J. Vilardo

LAWRENCE J. VILARDO

UNITED STATES DISTRICT JUDGE