Petition for Writ of Certiorari — Patricia Gill, Petitioner v. Nyack College, et al.

UNITED STATES COURT OF APPEALS

FOR THE

SECOND CIRCUIT

At a Stated Term of the United States Court of Appeals for the Second Circuit, held at

the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on

the 29th day of January, two thousand and nineteen,

Present: Robert D. Sack,

Barrington D. Parker,

Denny Chin,

Circuit Judges,

Patricia Gill,

ORDER

Docket Nos. 18-2381, 18-2700

Plaintiff Appellant,

-

V.

Nyack College, Dr. Andrew Mercurio, Dr. Deanne

Kwan, Dr. Carol Robles, Ms. Elona Collins, Dr. Charles

Toanies, New York State Division of Human Rights,

Defendants Appellees.

-

Appellant Patricia Gill filed a motion for reconsideration and the panel that determined

the motion has considered the request.

'

IT IS HEREBY ORDERED, that the motion is denied.

For The Court:

Catherine

Clerk of Court

Doc'jmrit

/12ULE

S.D.N.Y. W.P.

•17-cv-1770

Roman. J.

-

United States Court of Appeals

FOR THE

SECOND CIRCUIT

At a stated term of the United States Court of Appeals for the Second

Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square,

in the City of New York, on the 17' day of December, two thousand eighteen.

Present:

Robert D. Sack,

Barrington D. Parker,

Denny Chin,

Circuit Judges.

Patricia Gill,

Plaintiff-Appellant,

18-2381 (L),

18-2700 (Con)

V.

Nyack College, et al.,

Defendants-Appellees.

Appellant, pro Se, moves for leave to proceed in forma pauperis.. Appellees move to dismiss the

appeals and impose sanctions. Upon due consideration, it is hereby ORDERED that Appellant's

motions are DENIED, Appellees' motions to dismiss are GRANTED, and the appeals are

DISMISSED because they "lack[] an arguable basis either in law or in fact." Neitzke v. Williams,

'

490 U.S. 319, 325 (1989); see also 28 U.S.C. § 1915(e). It is further ORDERED that Appellees

motions for sanctions are DENIED because Appellant's course of conduct in this litigation has not

presented "a clear showing of bad faith." Star Mark Mgmt., Inc. v. Koon Chun Hing Kee Soy &

Sauce Factory, Ltd., 682 F.3d 170, 180 (2d Cir. 2012) (per curiam) (internal quotation marks

omitted).

FOR THE COURT:

Catherine O'Hagan Wolfe, Clerk of Court

Case 7:17-cv-01770-NSR Document 24 Filed 08/23/18 Page 1 of 1

_i

'I

I .

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

--------------------------------------- x

PATRICIA GILL

Plaintiff,

-against-

.

-.-/.-/....--

.

17 CIVIL 1770 (NSR)

JUDGMENT

NYACK COLLEGE, DR. ANDREW

MERCURIO, DR. DEANNA KWAN, DR.

CAROL ROBLES, MS. ELONA COLLINS,

DR. CHARLES JOANIES and NEW YORK

STATE DIVISION OF HUMAN RIGHTS,

Defendants.

--------------------------------------x

It is hereby ORDERED, ADJUDGED AND DECREED: That for the reasons:

stated in the Court's Opinion and Order dated August 1, 2018, Defendants' motion is granted,

Plaintiffs' Complaint is dismissed with prejudice for lack of subject matter jurisdiction; the Court

certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this Court's opinion and Order

would not be taken in good faith , and therefore in forma pauperis is denied for the purpose of an

appeal; accordingly, this case is closed.

Dated: New York, New York

August 23, 2018

RUBY J. KRAJIC,J<....

Clerk

BY:

-

-

-

.

THIS DOCUMENT WASr TU)

ON THE DOCKET ON'

N

Case 7:17-cv-01770-NSR Document 22 Filed 08/01/18 Page 1 of 9

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

I _.CUiiZ1\T

ELECTRGN1CALL' FLii

PATRICIA GILL,

D ATE FILED:

Plaintiff,

jH:

-againstNYACK COLLEGE, DR. ANDREW MERCURIO,

DR. DEANNA KWAN, DR. CAROL ROBLES, MS.

ELONA COLLINS, DR. CHARLES JOANIES and

NEW YORK STATE DIVISION OF HUMAN

RIGHTS,

No. 17-CV-01770 (NSR)

OPINION & ORDER

Defendants.

NELSON S. ROMAN, United States District Judge

Prose plaintiff Patricia Gill ("Plaintiff') initiated this action pursuant to 42 U.S.C. § 1983

for alleged violations of the Americans with Disabilities Act (the "ADA") and the Rehabilitation

Act of 1973 (the "Rehab Act") against Defendants Nyack College ("Nyack"), Dr. Andrew

Mercurio, Dr. Deanna Kwan, Dr. Carol Robles, Ms. Elona Collins, Dr. Charles Joanies, and New

York State Division of Human Rights ("NYSDHR") (collectively "Defendants"). (See Complaint,

("Compl.") (ECF No. 2).) Presently before this Court is Defendants' motion to dismiss Plaintiff's

Complaint ("Defendants' Motion") filed on October 6, 2017. (See ECF No. 17.) For the following

reasons, Defendants' Motion is GRANTED and the Complaint is dismissed with prejudice.

PROCEDURAL BACKGROUND'

The following procedural facts--which are taken from the Complaint, documents annexed

thereto, and matters of which the Court may take judicial notice—are construed in the light most

In the exercise of judicial restraint, this Court need not to address the factual allegations pertaining to Plaintiff's

claims, as the Court lacks subject matter jurisdiction over them.

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Case 7:17-cv-01770-NSR Document 22 Filed 08/01/18 Page 2 of 9

favorable to Plaintiff, as she is the non-moving party.' See, e.g., Kleinman v. Elan Coip., 706 F.3d

145, 152 (2d Cir. 2013); Gonzalez v. Hasty, 651 F.3d 318, 321 (2d Cir, 2011).

This is Plaintiff's second case before this Court seeking relief for alleged discrimination

against a college. Her first case was initiated against Mercy College on August 29, 2017 and

dismissed by this Court on April 23, 2018. In this action, Plaintiff sues Nyack, as well as various

administrators at Nyack and the NYSDHR, as an entity. (See Compi. at 7-11 .)3 Plaintiff was

formerly a student at Nyack, and while enrolled, informed the institution that she suffers from a

specific form of dyslexia. (See Compi. at 18.) Plaintiff requested certain accommodations to assist

her in learning, but despite such requests, she began failing classes and was ultimately asked to

leave Nyack in late 2011. (See Compl. at 26.)

After Plaintiff was dismissed from Nyack, on April 24, 2012, she filed a complaint with

the United States Department of Education, Office of Civil Rights ("OCR"), alleging, inter alia,

disability discrimination. (See Aaron N. Solomon's Declaration in Supprt of Defendants' Motion

to Dismiss (ECF No. 17) ("Solomon Deci.") Ex. B.)4 OCR then conducted an investigation, which

concluded on October 19, 2012, and resulted in a finding that there was insufficient evidence to

support Plaintiff's claim that Nyack discriminated against her on the basis of her disability. (See

id., Ex. D.) Plaintiff then appealed the OCR's decision and such appeal was denied on August 15,

2013. (See Id., Ex. F.) On October 15, 2013, Plaintiff filed a complaint of discrimination with the

2

"In resolving a motion to dismiss under Rule 12(b)(1), the district court must take all uncontroverted facts in the

complaint (or petition) as true, and draw all reasonable inferences in favor of the party asserting jurisdiction." Booker

v. Griffin, No. 16-CV-00072 (NSR), 2018 WL 1614346, at 4 (S.D.N.Y. Mar. 31, 2018). The Court assumes the truth

of the facts alleged in Plaintiff's Complaint for purposes of this motion only.

Due to Plaintiff's pro se status and the fact that her Complaint is the standard, flhlable 42 U.S.C. 183 form

§

complaint, all citations thereto will be to pages, not paragraphs.

The Court. will take judicial notice of the-documents-attached to-Aaron- N. Solomon's Declartion in Support of

Defendants' Motion to Dismiss (ECF No. 17) ("Solomon Dccl.") and consider them for purposes of this motion, as

documents which are either incorporated by reference or integral to the Complaint. Nicosia v. Amazon.com, Inc., 834

F.3d 220, 230 (2d Cir. 2016); see also Chambers v. Time Warner, Inc., 282 F.3d at 153 (2d Cu. 2002).

'.1

Case 7:17-cv-01770-NSR Document 22 Filed 08/01/18

Page 3 of 9

NYSDHR, (see Id., Ex. H), which was dismissed as untimely on April 11, 2014, (see id., Ex. 1), as

it was not brought within one year of the alleged discriminatory conduct, (id.) The decision

nevertheless informed Plaintiff that such a dismissal did not preclude her from initiating suit "in

any court of appropriate jurisdiction", provided that she did so within the appropriate statute of

limitations

-

in state court, within thee years of the alleged discriminatory activity.' (Id.)

On July 7, 2014, after both the OCR and NYSDHR reviewed and denied Plaintiff's

discrimination claim, Plaintiff filed an Article 78 Petition in New York State Supreme Court,

County of New York (the "Article 78 Court") to review the NYSDHR's decision. (See Id., Ex. J.)

Subsequently, on September 3, 2014, the Article 78 Court dismissed Plaintiff's Petition finding no

error in the NYSDHR's determination that Plaintiffs claims were untimely based on the one-year

filing deadline. (See Id., Exs. K, L.) The Article 78 Court determined that, for the purposes of

establishing the one-year filing deadline pursuant to Executive Law § 297.5, the "last act of

discrimination" occurred in February 2012; thus, Plaintiff's NYSDHR complaint would have been

timely if filed before February 2013. (Id., Ex. L at 2.) Plaintiff then appealed the decision to the

Appellate Division. The Appellate Division affirmed the dismissal of Plaintiff's Article 78

Petition holding that Plaintiff failed to file her NYSDHR complaint of discrimination within the

time afforded by Executive Law § 297.5. See Matter of Gill i'. Nyack College, 136 A.D.3d 525,

525 (1St Dep' t. 2016). Plaintiff's motion for re-argument before the Appellate Division was denied

Oil June 14, 2016, (see id., Ex. M), as was her motion for leave to appeal to the Court of Appeals

on February 9, 2017, (see Id., Ex. N.)

Plaintiff never filed such a complaint. Instead, the ensuing litigation was related to review of the adnihistratiye

_xecord by-the Article-78-Court and-subsequent appeals of the Articl78 Ciñt's

eimination. Plaintiff did not avail

herself of filing a separate complaint for alleged disability discrimination in New York State Supreme Court within

three years of the date of the discriminatory acts, despite the explicit notations by both the NYSDHR and the Article

78 Court that such an option was available to her. (See Solomon Deci., Ex. 1; Ex. L at 8-12.)

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Case 7:17-cv-01770-NSR Document 22 Filed 08/01/18 Page 4 of 9

On March 9, 2017, Plaintiff initiated the present action alleging claims for disability

discrimination and asking this Court to reverse the various state court decisions. Defendants now

seek dismissal of her Complaint.

STANDARD ON MOTION TO DISMISS

On a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject matter

jurisdiction, dismissal is proper "when the district court lacks the statutory or constitutional power

to adjudicate it." Nike, Inc. v. Already, LLC, 663 F.3d 89, 94 (2d Cir. 2011) (quoting Makarova v.

United Slates, 201 F.3d 110, 113 (2d Cir. 2000)). A plaintiff bears the burden of proving subject

matter jurisdiction by preponderance of the evidence. •Liranzo v. United States, 690 F.3d 78, 84

(2d Cir. 2012); Morrison v. Nat'! Austi. Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (quoting

Makarova, 201 F.3d at 113). "Jurisdiction must be shown affirmatively, and that showing is not

made by drawing from the pleadings inferences favorable to the party asserting it." Shipping Fin.

Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998). Nevertheless, the Court must accept as

true all the facts alleged in the complaint. Conyers v. Rossides, 558 F.3d 137, 143 (2d Cir. 2009).

The Court may consider, in addition to the factual allegations in the complaint, "[t]he documents

attached to the complaint as exhibits, and any documents incorporated in the complaint by

reference." McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir, 2007).

A court lacks subject matter jurisdiction if plaintiff's claim are barred by either the RookerFeldman doctrine or res judicata. The Rooker-Feldman doctrine prohibits federal cases "that

essentially amount to appeals of state court judgments," Vossbrinckv. Accredited Home Lenders,

Inc., 773 F.3d 423, 426 (2d Cir. 2014). Whereas, "[u]nder res judicata, a final judgment on the

merits of an action precludes the parties or their privies from relitigating issues that were or could

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Case 7:17-cv-01770-NSR Document 22 Filed 08/01/18 Page 5 of 9

have been raised in that action." Allen v. McCurry, 449 U.S. 90, 94 (1980) (citing Cromwell v.

Sac Cly., 94 U.S. 351 (1876)).

DISCUSSION

Defendants' base their motion to dismiss on four arguments. (See generally Defendants' Brief

in Support of their Motion to Dismiss ("Defs. Br,") (ECF No. 19).). A threshold argument is that

the Rooker-Feldman doctrine renders this Court without subject matter jurisdiction to hear

Plaintiffs case. (Id. at 8-10.) Defendants also contend that, irrespective of whether this Court has

jurisdiction, Plaintiffs claims are barred by res judicata. (Id. at 10-11.) In the alternative,

Defendants move to dismiss on grounds that Plaintiffs claims are time-barred and that the

Complaint otherwise fails to state a claim for relief. (Id. at 7-8, 11-14.) In light of this Court's

determination, infra I, that it lacks the authority to adjudicate Plaintiff's claims, it declines to

ascertain whether dismissal pursuant to Fed. R. Civ. P. 12(b)(6) is proper.

I.

Rooker-Feldman Doctrine

In Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), the Supreme Court held that federal

district courts lack jurisdiction to review state court judgments because "the jurisdiction possessed

by the District Courts is strictly original," and "[t]o [review state court judgments] would be an

exercise of appellate jurisdiction." Id. at 416. Thereafter, in District of Columbia Court ofAppeals

v. Feldman, 460 U.S. 462 (1983), the Court reiterated this rule, holding that a federal district court

"has no authority to review final judgments of a state court in judicial proceedings." Id. at 482.

Thus, the Rooker-Feldman doctrine came to be and explicitly "denies federal district

courts,

. .

jurisdiction over cases that essentially amount to appeals of state court judgments."

Barbato v. U.S. Bank Nat'l Assn, No, 14CV2233, 2016 WL 158588, at *2 (S.IN.Y. Jan, 12,

2016) (citing Vossbrinck, 773 F.3d at 426). To dismiss a claim pursuant to the Rooker-Feldman

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Case 7:17-cv-01770-NSR Document 22 Filed 08/01/18 Page 6 of 9

doctrine, a court must find that: "(1) the plaintiff lost in state court, (2) the plaintiff complains of

injuries caused by the state court judgment, (3) the plaintiff invites district court review of that

judgment, and (4) the state court judgment was entered before the plaintiff's federal suit

commenced." McKithen v. Brown, 626 F.3d 143, 154 (2d Cir. 2010) (citing McKithen v. Brown

(McKithen I), 481 F.3d 89,97 (2d Cir. 2005)).

Preliminarily, this case is nearly procedurally identical to Plaintiff's previous case against

Mercy College. See Gill, 2018 WL 1940426, at *1, In that case, Plaintiff sued Mercy College in

federal court after attempting to obtain relief from the New York City Commission on Human

Rights (the "NYCHR"), an Article' 78 proceeding in New York State Supreme Court, the Appellate

Division, and the New York Court of Appeals. Id. at *1..2. The NYCRR dismissed Plaintiff's

claims by finding that the Defendants demonstrated that their actions were based on legitimate,

nondiscriminatory reasons. Id. at * I. When Plaintiff sought review of this determination, the

Article 78 Court dismissed her case as untimely and for failure to exhaust her administrative

remedies, and such dismissal was affirmed by the Appellate Division and the Court of Appeals.

Id at *2 n. 5. On a motion to dismiss, on the same bases as that presently before the Court, this

Court held that the Rooker-Feldman docttine applied, barring this Court from considering

Plaintiff's complaint against Mercy. Id. at *3 For principally the same reasons articulated in that

Opinion, the Court now finds that Plaintiffs case against Nyack is likewise extinguished by

operation of the Rooker-Feldman doctrine. A brief analysis is nevertheless warranted.

There is no question that Plaintiffs case satisfies the first and fourth elements: Plaintiff

lost every state court proceeding she commenced against Defendants prior to filing her Complaint

with this Court on March 9, 2017. (See generally Compi.; see also Solomon Deel., Exs.D F, HI, K-N.) The Court therefore focuses on the second and third requirements.

Case 7:17-cv-01770-NSR Document 22 Filed 08/01/18 Page 7 of 9

The second element is fulfilled by Plaintiffs allegation that the Article 78 Court's dismissal

of her Petition has injured her. (See Compi. at 12.) Moreover, Plaintiff explicitly seeks relief that

would require this Court to invalidate and dismiss the state courts' judgments, as she "is asking

[the] United States District Court to reverse the decisions the lower courts made." (Id. at 26, 12

(noting that "[t]he Appellate Court and Court [of] Appeals is [sic] avoiding the issues in this case).)

Thus, the third element is satisfied as well. This Court, however, is only "empowered to exercise

original, not appellate, jurisdiction," Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280,

283 (2005), and therefore must apply the Rooker-Feidman doctrine and dismiss this action, see

Vossbrinck, 773 F.3d at 427.

IL

Res Judicata

Even if the Rooker-Feldincin doctrine did not apply, this Court would, nevertheless, lack

subject matter jurisdiction to adjudicate the claim as it is precluded by res judicata. Res judicata

holds that "a final judgment on the merits of an action precludes the parties or their privies from

relitigating issues that were or could have been raised in that action." Allen v. McCuriy, 449 U.S.

90, 94 (1980); Roles Tech. Inc. v. Speakeasy, Inc., 685 F.3d 163, 169 (2d Cir. 2012). To

substantiate a defense of res j ud icata, a party must show that "(1) the previous action involved an

adjudication on the merits; (2) the previous action involved the parties or those in privity with

them; and (3) the claims asserted in the subsequent action were, or could have been, raised in the

prior action." Graham v. Select Portfolio Set-i., Inc., 156 F. Supp. 3d 491, 509 (quoting Pike v.

Freeman, 266 F.3d 78, 91 (2d Cu. 2001)).

In deciding whether res judicata applies, this Court must refer to New York State law

"which has adopted a transactional approach to res judicata, barring a later claim arising out of the

sameSactuaI-grouping asan-earlier-litigated1ai ieviiifTh lát cti is based on different legal

7

Case 7:17-cv-01770-NSR Document 22 Filed 08/01/18 Page 8 of 9.

theories or seeks dissimilar or additional relief." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.

1994).6

Res judicata applies to the facts of this case. For purposes of New York law, a dismissal

on statute of limitations grounds is considered adismissal on the merits for purposes of res j ud icata.

See Hanrahan v. Riverhead Nursing Home, 592 F.3d 367, 369-70 (2d Cir. 2010); see also

Karamoko p. N.Y.C. Hous. Auth., 170 F. Supp. 2d 372, 377 (S.D.N.Y. 2001) (citing EFCO Co?p.

v. U W. Marx, Inc., 124 F.3d 394, 397-98 (2d Cir. 1997)). When reviewing the NYSDT-IR's

decision, the Article 78 Court concluded that Plaintiff's claims were time-barred pursuant to

Executive Law § 297.5, and thus properly dismissed by the NYSDHR. (See Solomon Deci., Ex.

L at 10.) Plaintiff's claims were therefore not dismissed "merely for pleading defect, but

manifestly on the merits," Lampert v. Ambassador Factors Corp., 266 A.D. 2d 124, (1st Dep't

1999), thereby substantiating the first element of the doctrine of res judicata, see Graham, 156

F. Supp. 3d at 509.

The second and third elements of res judicata are also met. It is manifestly clear that the

case before this Court involves the exact same parties as those in the NYSDHR adjudication and

subsequent state court proceedings. Moreover, Plaintiff asserts the exact same claim in this Court

as she did in the Article 78 proceeding; that the NYSDHR should not have dismissed her

meritorious discrimination complaint.7 (Compare Solomon Deci., Ex. J with Compi. at 26

(alleging that NYSDFIR erroneously decided her claim of discrimination against the Defendants

6

--

Furthermore, the claims unquestionably arise out of "the same factual groupings as" the earlier

claims and are thus

barred under New York State's transactional approach.

To the extent Plaintiff is asserting substantive claims of discrimination separate and apart from

her request that this

Court review the decisions of the state court, such claims are time-barred, as properly argued

by Defendants. The

applicable statute of limitations expired in late 2014, and Plaintiffs federal case was filed-in

March 20l6,-wel1 over a --_yearJuter.... See-Harris -v Ci ey ofNew York, 186 F.3r243247-48 (2d Cir. 1999) (three year

statute of limitations for

ADA and Rehab Act claims); see also Fierro v. NYC Dep 'ta/Ethic., 994 F. Supp. 2d 581, 587

(S.D.N.Y. 2014 )(same

for Section 1983 claims).

8

Case 7:17-cv-01770-NSR Document 22 Filed 08/01/18 Page 9 of 9

and requests that the Court vacate the NYSDHR's decision).) Consequently, even if the RookerFeldman doctrine did not apply, res judicata would bar Plaintiff from re-litigating her state court

claims in federal court.

CONCLUSION

For the foregoing reasons, Defendants' Motion is GRANTED, and Plaintiff s Complaint

is dismissed with prejudice for lack of subject matter jurisdiction. The Court certifies under 28

U.S.C. § 1915(a)(3) that any appeal from this Opinion and Order would not be taken in good faith,

and therefore in forma pauperis status is denied for the purpose of an appeal. cf Coopedge v.

United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates good faith

when he seeks review of a nonfrivolous issue).

The Clerk of the Court is respectfully directed to terminate the motion at ECF No. 17 and

terminate the action. The Clerk of the Court is also directed to mail a copy of this Opinion and

Order to Plaintiff at her address as listed on ECF and show proof of service on the docket.

Dated: August 1, 2018

White Plains, New York

SO ORDERED:

ZA~~,

NELS 4NS.

AN

United States District Judge