stating that a finding that a claim is likely to be of substance is a threshold requirement for a court to appoint pro bono counsel in a civil caseSummary of this case from Gaines v. City of New York
13 Civ. 3322 (AT)(HBP)
MEMORANDUM AND ORDER :
In this action, Plaintiff pro se, Justin S. Gaddy, alleges that Defendants discriminated against him on the basis of race. Although Plaintiff's amended complaint (the "complaint") does not cite any constitutional provision or federal law, the Court presumes—in light of Plaintiff's pro se status—that Plaintiff intends to assert claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"), 42 U.S.C. § 1981 ("Section 1981"), and/or 42 U.S.C. § 1983 ("Section 1983"). Defendants NYSA-PPGU Welfare Fund and Plan (the "Welfare Fund") and Raymond T. Gorski ("Gorski") move to dismiss the complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. Defendant Ports America, Inc. ("Ports America") moves to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Defendant Waterfront Commission of New York Harbor (the "Waterfront Commission") moves for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. In addition, Plaintiff asks the Court to appoint pro bono counsel. For the reasons stated below, the Rule 12(b)(1) motion is DENIED and the Rule 12(b)(6) and 12(c) motions are GRANTED with leave to file a second amended complaint. Plaintiff's request for counsel is DENIED.
Although Plaintiff brings this action against "NYSAPPGU," the Welfare Fund and Gorski claim that they "are not aware of any entity named NYSAPPGU." Welfare Fund-Gorski Mem. 1 n.1, ECF No. 35. The Welfare Fund notes that it is appearing in this action on the assumption that, by naming "NYSAPPGU," Plaintiff intends to assert a claim against the Welfare Fund, id.—which Plaintiff does not dispute.
According to the Welfare Fund and Gorski, Plaintiff improperly identifies Gorski as "Ray Gorsky" in the caption of the complaint. See Welfare Fund-Gorski Mem. 1.
According to Ports America, Plaintiff improperly identifies Ports America as "PO Ports America" in the caption of the complaint. See Ports Am. Mem. 1, ECF No. 25.
Although the Waterfront Commission is sued here as "Waterfront Commission," its full name is Waterfront Commission of New York Harbor. See Waterfront Comm'n Mem. 1, ECF No. 43.
On May 15, 2013, Plaintiff filed the original complaint in this action. That same day, Plaintiff filed a request to proceed in forma pauperis, ECF No. 1, which Chief Judge Loretta Preska granted on August 20, 2013, ECF No. 6. On September 4, 2013, Judge Preska sua sponte issued an order (1) finding that the complaint did not comply with Rule 8 of the Federal Rules of Civil Procedure; (2) explaining that Plaintiff had not alleged any facts to establish subject matter jurisdiction; and (3) directing Plaintiff to file an amended complaint. ECF No. 7. On November 4, 2013, Plaintiff filed an amended complaint. The case was reassigned to this Court on December 18, 2013.
Plaintiff's amended complaint appears to allege that, from 2005 until 2011, Plaintiff held a part-time job on the waterfront in Port Newark and Port New York. Am. Compl. ¶ III.C, ECF No. 8. For this job, Plaintiff was required to have a "waterfront license." Id. ¶ V. To maintain the license, Plaintiff was obligated to undergo periodic physical examinations. Id. ¶¶ III.C, V. Plaintiff asserts that the Waterfront Commission paid for the physicals "for over six years." Id. ¶ III.C. However, in March 2011 (and perhaps again in 2012), Plaintiff received a letter from Ports America, "NYSA (Union)," and the Waterfront Commission, instructing Plaintiff to submit to a physical in Elizabeth, New Jersey, at a cost to Plaintiff of $380. Id. Plaintiff declined to do so. Id. Instead, he "went to Queens Hospital" and "had this same examination for free . . . by a doctor who is duly license[d] to practice medicine in the State of NY." Id. Plaintiff submitted the results of the exam (and perhaps a second exam) to the Waterfront Commission and "NYSA," but they did not accept the results. Id. ¶¶ III.C, V. Plaintiff's waterfront license was subsequently suspended and, as a result, he lost pay and benefits. Id.
It is unclear whether "NYSA (Union)" refers to the Welfare Fund.
Plaintiff contends that requiring him to undergo and pay for a physical exam in Elizabeth, New Jersey constitutes race discrimination. Specifically, Plaintiff asserts that: (1) he "felt this new procedure is discriminatory toward Black Americans"; (2) "NYSA . . . has a history of being insensitive towards Black Afro Americans" and tries "to come up with petty [and] non job essentials to keep certain ethnic groups off the waterfront"; (3) "they should not cherry pick paying for selected groups or discriminate against Afro Americans"; and (4) "race should not play a role in who pays for physicals." Id.
I. Standard of Review
A. Rule 12(b)(1)
"A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). To survive a Rule 12(b)(1) motion to dismiss, the plaintiff "has the burden of proving by a preponderance of the evidence that [subject matter jurisdiction] exists." Id. On such a motion, "the district court must take all uncontroverted facts in the complaint . . . as true, and draw all reasonable inferences in favor of the party asserting jurisdiction." Tandon v. Captain's Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014). However, "[w]here jurisdictional facts are placed in dispute, the court has the power and obligation to decide issues of fact by reference to evidence outside the pleadings, such as affidavits." Id. (alteration in original) (internal quotation marks and citation omitted).
B. Rules 12(b)(6) and 12(c)
To survive a Rule 12(b)(6) motion to dismiss or Rule 12(c) motion for judgment on the pleadings, "a complaint must contain sufficient factual matter . . . 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)); see also Bank of New York v. First Millennium, Inc., 607 F.3d 905, 922 (2d Cir. 2010) ("The same standard applicable to [Rule 12(b)(6)] motions to dismiss applies to [Rule 12(c)] motions for judgment on the pleadings."). On such a motion, the court may consider only the complaint, documents attached to the complaint, matters of which a court can take judicial notice, or documents that the plaintiff knew about and relied upon. See Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002). The court must accept the allegations in the complaint as true and draw all reasonable inferences in favor of the non-movant. ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007).
C. Pro Se Submissions
The court must "liberally construe pleadings and briefs submitted by pro se litigants, reading such submissions to raise the strongest arguments they suggest." Bertin v. United States, 478 F.3d 489, 491 (2d Cir. 2007) (internal quotation marks and citations omitted). "The policy of liberally construing pro se submissions is driven by the understanding that implicit in the right to self-representation is an obligation on the part of the court to make reasonable allowances to protect pro se litigants from inadvertent forfeiture of important rights because of their lack of legal training." Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007) (internal quotation marks, brackets, and citation omitted). Although the court is "obligated to draw the most favorable inferences that [a pro se plaintiff's] complaint supports, [the court] cannot invent factual allegations that [the plaintiff] has not pled." Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010). "[T]he court should not dismiss without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated." Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (internal quotation marks and citation omitted).
II. Subject Matter Jurisdiction
Where, as here, defendants move for dismissal pursuant to Rule 12(b)(1) "as well as on other grounds, the court should consider the Rule 12(b)(1) challenge first since if it must dismiss the complaint for lack of subject matter jurisdiction, the accompanying defenses and objections become moot and do not need to be determined." Rhulen Agency, Inc. v. Alabama Ins. Guar. Ass'n, 896 F.2d 674, 678 (2d Cir. 1990) (internal quotation marks and citation omitted). Accordingly, the Court first considers the Welfare Fund and Gorski's argument that the Court lacks subject matter jurisdiction. These Defendants contend that the complaint should be dismissed because they are "left . . . guessing as to what constitutional provision or law is the basis for invoking the subject matter jurisdiction of this Court." Welfare Fund-Gorski Mem. 13. The Court disagrees and concludes that, because the complaint can plausibly be read to set forth a federal cause of action, the Court does not lack subject matter jurisdiction.
To invoke federal question jurisdiction, a plaintiff's claim must arise "under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. "Federal question jurisdiction may be properly invoked only if the plaintiff's complaint necessarily draws into question the interpretation or application of federal law." New York v. White, 528 F.2d 336, 338 (2d Cir. 1975). Thus, "[m]ere invocation of federal question jurisdiction, without any alleged facts supporting a federal law claim, is insufficient." Robinson v. Long Island Jewish Hosp., 14 Civ. 3344, 2014 WL 4175790, at *2 (E.D.N.Y. Aug. 20, 2014) (citing Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1188-89 (2d Cir. 1996)). "Whether [a plaintiff] is able to assert a valid claim under [a federal statute] is irrelevant to the question of whether the District Court has subject matter jurisdiction over her complaint." TAGC Mgmt., LLC v. Lehman, Lee & Xu Ltd., 536 F. App'x 45, 48 (2d Cir. 2013) (alterations in original) (quoting Carlson v. Principal Fin. Grp., 320 F.3d 301, 307 (2d Cir. 2003)). In evaluating a pro se complaint, the court should not dismiss for lack of subject matter jurisdiction if the complaint can plausibly be read to set forth a federal cause of action. See, e.g., Robinson, 2014 WL 4175790, at *2; cf. Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-76 (2d Cir. 2006) (emphasizing the importance of liberally construing pro se submissions in the context of a Rule 12(b)(1) motion).
Here, the complaint indicates that Plaintiff seeks to invoke federal question jurisdiction. Am. Compl. ¶ II.A. Specifically, Plaintiff states that "violation of civil rights in selection of doctors/health care" provides the basis for federal question jurisdiction. Id. ¶ II.B. Plaintiff goes on to assert, among other things, that: (1) he "felt this new procedure" (i.e., requiring waterfront licensees to undergo a physical examination in Elizabeth, New Jersey and pay $380 for the examination) "is discriminatory toward Black Americans"; (2) "NYSA . . . has a history of being insensitive towards Black Afro Americans" and tries "to come up with petty [and] non job essentials to keep certain ethnic groups off the waterfront"; (3) "they should not cherry pick paying for selected groups or discriminate against Afro Americans"; and (4) "race should not play a role in who pays for physicals." Id. ¶¶ III.C, V. These assertions, together with Plaintiff's claim that the alleged discrimination took place in the context of his employment, see id., can plausibly be read to set forth a federal cause of action. Although Plaintiff does not explicitly refer to Title VII, Section 1981, or Section 1983, the complaint, construed liberally, "draws into question the interpretation or application of these federal laws, White, 528 F.2d at 338—as Defendants concede, see Ports Am. Mem. 3 ("[I]t appears that [Plaintiff] might be attempting to plead claims of race discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1983, and 42 U.S.C. § 1981."); Welfare Fund-Gorski Mem. 13 & n.6 (acknowledging that the complaint "could be possibly construed as a claim based on a violation of 42 U.S.C. § 1981" or Title VII); Waterfront Comm'n Mem. 1 (noting that Plaintiff "appears to allege unlawful racial discrimination against each of the Defendants under either or both Title VII . . . or 42 U.S.C. § 1981 . . . and, perhaps, as to the Commission, 42 U.S.C. § 1983 . . . as well"). Accordingly, the Court does not lack subject matter jurisdiction to consider Plaintiff's claims.
Under Title VII, "[i]t shall be an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a). Under Section 1981, "[a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens." 42 U.S.C. § 1981(a). Under Section 1983, "[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured." 42 U.S.C. § 1983.
III. Failure to State a Claim
The Court's capacity to adjudicate Plaintiff's claims, however, does not mean that the complaint can withstand a Rule 12(b)(6) or 12(c) motion. See TAGC Mgmt., 536 F. App'x at 48. Indeed, affording Plaintiff the most favorable inferences that his complaint supports, the Court concludes that Plaintiff has failed to state a claim under Title VII, Section 1981, and Section 1983.
Once again, although Plaintiff does not explicitly refer to Title VII, Section 1981, or Section 1983, in light of his pro se status, the Court reads the complaint as seeking to assert claims under these federal laws. Therefore, to resolve Defendants' Rule 12(b)(6) and 12(c) motions, the Court considers whether the complaint states a claim under these laws.
A. Title VII
Under Title VII, a plaintiff "may bring suit in federal court only if she has filed a timely complaint with the [Equal Employment Opportunity Commission ("EEOC")] and obtained a right-to-sue letter." Legnani v. Alitalia Linee Aeree Italiane, S.P.A., 274 F.3d 683, 686 (2d Cir. 2001). "Exhaustion of administrative remedies through the EEOC is an essential element of the Title VII . . . statutory scheme and, as such, a precondition to bringing such [a] claim in federal court." Id. Filing a timely EEOC complaint and obtaining a right-to-sue letter are requirements that "appl[y] with equal force to pro se litigants." Benardo v. Am. Idol Prods., Inc., 10 Civ. 6487, 2010 WL 4968177, at *2 (S.D.N.Y. Dec. 6, 2010). "Where a plaintiff does not submit proof of receipt of a right-to-sue notice from the EEOC, he has failed to state a claim." Dixon v. Krasdale Foods, Inc., 13 Civ. 3045, 2013 WL 6334439, at *3 (S.D.N.Y. Dec. 4, 2013). Here, Plaintiff has not submitted proof of a right-to-sue letter nor has he provided any indication that he sought to exhaust administrative remedies through the EEOC prior to filing this action. Accordingly, Plaintiff has failed to state a Title VII claim.
Even if Plaintiff had properly exhausted and obtained a right-to-sue letter, the Court would still find that Plaintiff has failed to state a Title VII claim. "[T]o survive a motion to dismiss, a Title VII plaintiff's complaint must be facially plausible and allege sufficient facts to give the defendant fair notice of the basis for the claim; it need not, however, make out a prima face case." Brown v. Daikin Am. Inc., 756 F.3d 219, 228 n.10 (2d Cir. 2014); see also Jenkins v. New York City Transit Auth., 646 F. Supp. 2d 464, 469 (S.D.N.Y. 2009) ("To state a claim for disparate impact under Title VII, a plaintiff . . . is not required to . . . establish a prima facie case.") (citations omitted). "Nevertheless, the elements of a prima facie case provide an outline of what is necessary to render a plaintiff's employment discrimination claims for relief plausible." Kassman v. KPMG LLP, 925 F. Supp. 2d 453, 461 (S.D.N.Y. 2013) (internal quotation marks, brackets, and citation omitted). Thus, to state a race discrimination claim under Title VII, a plaintiff "must allege sufficient facts to [support] a plausible claim that her employer took an adverse action against her because of her race." Morales v. City of New York Dep't of Juvenile Justice, 10 Civ. 829, 2012 WL 180879, at *6 (S.D.N.Y. Jan. 23, 2012); see also Edwards v. New York State Unified Court Sys., 12 Civ. 46, 2012 WL 6101984, at *4 (S.D.N.Y. Nov. 20, 2012) (explaining that a plaintiff "must show that the adverse employment actions occurred 'because of' a protected characteristic" and that "[t]he plaintiff's claim must offer more than conclusory statements") (quoting Patane v. Clark, 508 F.3d 106, 112 (2d Cir. 2007)). To state a disparate impact claim under Title VII, a plaintiff must allege sufficient facts to support a plausible claim that an employer's facially neutral practice or policy disproportionately and adversely affects a particular protected group in operation. See, e.g., Malone v. New York Pressman's Union No. 2, 07 Civ. 9583, 2011 WL 2150551, at *8 (S.D.N.Y. May 31, 2011) (finding that a complaint fails to state a disparate impact claim where "[n]o facts are [pleaded] that demonstrate that the complained-of, facially neutral polic[y] affect[s] [a particular protected group] more harshly"); Trezza v. The Hartford, Inc., 98 Civ. 2205, 1998 WL 912101, at *8 (S.D.N.Y. Dec. 30, 1998) (concluding that the plaintiff's "conclusory assertion that [the employer's facially neutral practice] has a disparate impact is insufficient to survive a motion to dismiss").
To establish a prima facie case of discrimination, a plaintiff must show that: "(1) she is a member of a protected group; (2) she is qualified for her position; (3) she suffered an adverse employment action; and (4) the circumstances give rise to an inference of discrimination." Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). To establish a prima facie disparate impact case, a plaintiff must: "(1) identify a specific employment practice or policy; (2) demonstrate that a disparity exists; and (3) establish a causal relationship between the two." Chin v. Port Auth. of New York & New Jersey, 685 F.3d 135, 151 (2d Cir. 2012) (internal quotation marks and citations omitted).
Plaintiff has failed to meet these standards. As an initial matter, the Court notes that the complaint does not identify Plaintiff's employer. Nonetheless, in light of Plaintiff's pro se status and given that the allegations concern Plaintiff's employment, the Court assumes that at least one Defendant may be Plaintiff's employer for the purpose of a Title VII claim. The Court also notes that, although Plaintiff alleges discrimination against "Black Americans," "Afro Americans," and "Black Afro Americans," Am. Compl. ¶¶ III.C, V, he does not expressly state that he is a member of these groups. Liberally construing the complaint, however, the Court assumes that Plaintiff belongs to or identifies with these groups.
Even granting Plaintiff these inferences, the complaint fails to state a viable Title VII claim because Plaintiff has offered nothing more than conclusory assertions of discrimination. The complaint does not set forth any facts to support Plaintiff's contention that he was required to submit to and pay for a physical in Elizabeth, New Jersey because of his race. Indeed, the non-conclusory assertions in the complaint do not give rise to an inference of discrimination. Likewise, to the extent the complaint can be read to assert Title VII claim under a disparate impact theory, Plaintiff has also failed to state a claim. The complaint does not include any facts showing that the physical examination policy disproportionately and adversely affects "Black Americans," "Afro Americans," or "Black Afro Americans," and Plaintiff does not explain why the policy would have such an effect. In the end, Plaintiff appears to "allege the familiar faulty syllogism: something bad happened to me at work; I am (fill in the blank with one or more protected categories); therefore it must have happened because I am (fill in the blank with the applicable protected categor[ies])." Edwards, 2012 WL 6101984, at *5 (alteration in original) (internal quotation marks and citation omitted). Such a pleading cannot withstand a Rule 12(b)(6) or 12(c) motion.
B. Section 1981
To state a claim under Section 1981, "a plaintiff must allege facts in support of the following elements: (1) the plaintiff is a member of a racial minority; (2) an intent to discriminate on the basis of race by the defendant; and (3) the discrimination concerned one or more of the activities enumerated in the statute (i.e., make and enforce contracts, sue and be sued, give evidence, etc.)." Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d Cir. 1993). "Essential to an action under Section 1981 are allegations that the defendants' acts were purposefully discriminatory and racially motivated." Albert v. Carovano, 851 F.2d 561, 571 (2d Cir. 1988) (citations omitted). Thus, "to survive a motion to dismiss, the plaintiff must specifically allege the events claimed to constitute intentional discrimination as well as circumstances giving rise to a plausible inference of racially discriminatory intent." Yusuf v. Vassar Coll., 35 F.3d 709, 713 (2d Cir. 1994). Naked assertions of race discrimination, without any supporting facts, are insufficient to state a Section 1981 claim. Id.; see also, e.g., Albert, 851 F.2d at 572 (finding the "naked allegation that [the defendants] 'selectively enforced the College rules against plaintiffs because they are black or Latin'" to be "too conclusory to survive a motion to dismiss") (alterations omitted); Hines v. F.J.C. Sec. Co., 96 Civ. 2632, 1998 WL 60967, at *3 (S.D.N.Y. Feb. 13, 1998) (concluding that "[t]he bare assertion that [the] [d]efendants denied [the] [p]laintiff access to the government building" because of the plaintiff's skin color, "without any specific allegation of a causal link between the [d]efendants' conduct and the [p]laintiff's race, is too conclusory to withstand a motion to dismiss").
A plaintiff may bring an employment discrimination claim under Section 1981. Lauture v. Int'l Bus. Machs. Corp., 216 F.3d 258, 263-64 (2d Cir. 2000). --------
Here, Plaintiff has failed to state a Section 1981 claim because the complaint contains only conclusory assertions of race discrimination without any supporting facts. These naked allegations do not give rise to an inference of racially discriminatory intent.
C. Section 1983
"To state a claim under § 1983, a plaintiff must allege that defendants violated plaintiff's federal rights while acting under color state law." McGugan v. Aldana-Bernier, 752 F.3d 224, 229 (2d Cir. 2014). A private entity acts under color of state law when: (1) "the State compelled the conduct"; (2) "there is a sufficiently close nexus between the State and the private conduct"; or (3) "the private conduct consisted of activity that has traditionally been the exclusive prerogative of the State." Id. (internal quotation marks and citation omitted). Where, as here, the Section 1983 claim concerns an alleged violation of the Equal Protection Clause, U.S. Const. amend. XIV, § 1, the plaintiff "must demonstrate that he was treated differently than others similarly situated as a result of intentional or purposeful discrimination." Phillips v. Girdich, 408 F.3d 124, 129 (2d Cir. 2005). "To plead intentional discrimination, a plaintiff must allege that the state expressly classified on the basis of a suspect characteristic, applied a neutral program in an intentionally discriminatory manner, or promulgated a policy that was motivated by discriminatory animus and that had an adverse effect." Morales v. New York, 13 Civ. 2586, 2014 WL 2158979, at *13 (S.D.N.Y. May 22, 2014) (citations omitted). A plaintiff's "conclusory allegations of disparate treatment" and "personal opinion that such treatment was motivated by discriminatory intent" are insufficient to state a Section 1983 claim for an Equal Protection Clause violation. Id. at *14.
Drawing upon these standards, the Court concludes that Plaintiff has failed to state a Section 1983 claim. As an initial matter, Plaintiff has not established that Ports America, the Welfare Fund, or Gorski, as private actors, may be sued under Section 1983. Indeed, the complaint provides no indication that these Defendants' actions are "fairly attributable" to the state. See McGugan, 752 F.3d at 229. Plaintiff likewise has not established that the Waterfront Commission—a bi-state agency created to combat corruption and criminal activity in the Port of New York and New Jersey, see N.J. Stat. Ann. § 32:23-1, et seq.; N.Y. Unconsol. Law § 9801, et seq. (McKinney)—is an entity amenable to suit under Section 1983. In any event, Plaintiff has failed to state a Section 1983 claim because he offers only "conclusory allegations of disparate treatment" and "his personal opinion that such treatment was motivated by discriminatory intent." Morales, 2014 WL 2158979, at *13. The complaint is devoid of factual allegations to support a plausible inference of intentional discrimination.
IV. Plaintiff's Claim Against US Health Works
Defendant US Health Works has neither moved to dismiss nor appeared in this case. Nevertheless, pursuant to its authority under 28 U.S.C. § 1915(e)(2), the Court finds that Plaintiff has failed to state a claim against US Health Works. The Court reaches this conclusion for the same reasons as stated above, see supra Section III, and because the complaint includes no allegations concerning US Health Works, see, e.g., Dove v. Fordham Univ., 56 F. Supp. 2d 330, 335 (S.D.N.Y. 1999) ("It is well-settled that where the complaint names a defendant in the caption but contains no allegations indicating how the defendant violated the law or injured the plaintiff, a motion to dismiss the complaint in regard to that defendant should be granted.") (internal quotation marks and citation omitted), aff'd sub nom., Dove v. O'Hare, 210 F.3d 354 (2d Cir. 2000). Therefore, the Court must dismiss the complaint as to US Health Works. 28 U.S.C. § 1915(e)(2)(B)(ii) ("[T]he court shall dismiss the case at any time if the court determines that . . . the action . . . fails to state a claim on which relief may be granted . . . ."); see also, e.g., Graham v. Bank of Am., 432 F. App'x 41, 41 (2d Cir. 2011) (noting that "a district court must dismiss an action" brought in forma pauperis "when the complaint 'fails to state a claim on which relief may be granted,'" and may do so sua sponte) (quoting 28 U.S.C. § 1915(e)(2)(B)(ii)).
V. Pro Bono Counsel
A district court has "broad discretion" when deciding whether to appoint counsel for an indigent litigant. Hodge v. Police Officers, 802 F.2d 58, 60 (2d Cir. 1986); see also Burgos v. Hopkins, 14 F.3d 787, 789 (2d Cir. 1994). Unlike in criminal cases, "[t]here is no requirement that an indigent litigant be appointed pro bono counsel in civil matters." Burgos, 14 F.3d at 789. Indeed, appointment of pro bono counsel must be done judiciously in order to preserve the "precious commodity" of volunteer lawyers for those litigants who truly need assistance. Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989).
The standard outlined by the Second Circuit in Hodge governs the evaluation of a plaintiff's request for counsel. Under this standard, a court must first determine "whether the indigent's position seems likely to be of substance." Hodge, 802 F.2d at 61. "Only if the claim meets this threshold requirement" should the court "consider other criteria." Cooper, 877 F.2d at 172 (internal quotation marks omitted). These criteria include: (1) "the indigent's ability to investigate the crucial facts"; (2) "whether conflicting evidence implicating the need for cross-examination will be the major proof presented to the fact finder; (3) "the indigent's ability to present the case"; (4) "the complexity of the legal issues"; and (5) "any special reason in th[e] case why appointment of counsel would be more likely to lead to a just determination." Hodge, 802 F.2d at 61-62.
For the same reasons that Plaintiff has failed to state a claim, see supra Sections III-IV, he has failed to meet the threshold requirement of showing that his case is "likely to be of substance," Hodge, 802 F.2d at 61. Plaintiff's application for pro bono counsel does not provide any information that suggests otherwise. Notably, the application asks, "What has happened in your case that demonstrates the potential merit of your case?" Pl. Appl. ¶ 1.B, ECF No. 40. In response, Plaintiff merely asserts that Defendants are "moving to dismiss this case" and "are all stating that they have nothing to do with action of my suspension." Id. This statement neither answers the question nor indicates that Plaintiff's case is likely to be of substance. Accordingly, Plaintiff's request for counsel is denied, subject to reconsideration on Plaintiff's renewed motion if subsequent submissions demonstrate that his case is sufficiently meritorious to warrant appointment of an attorney.
For the reasons stated above, it is ORDERED that:
1. The Welfare Fund and Gorski's Rule 12(b)(1) motion to dismiss is DENIED;
2. The Welfare Fund and Gorski's Rule 12(b)(6) motion to dismiss is GRANTED;
3. Ports America's Rule 12(b)(6) motion to dismiss is GRANTED;
4. The Waterfront Commission's Rule 12(c) motion for judgment on the pleadings is GRANTED;
5. Plaintiff's amended complaint is DISMISSED with leave to file a second amended complaint;
6. Plaintiff's request for pro bono counsel is DENIED without prejudice to renewal;
7. Plaintiff may file a second amended complaint by October 31, 2014, to address the pleading deficiencies identified above. If Plaintiff fails to file a second amended
complaint by October 31, 2014, and does not show good cause to excuse such failure, this action will be dismissed with prejudice. See Fed. R. Civ. P. 41(b).
Pursuant to 28 U.S.C. § 1915(a)(3), the Court certifies that any appeal from this order would not be taken in good faith and, therefore, in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
The Clerk of Court is directed to terminate the motions at ECF Nos. 24, 34, 40, and 42 and to mail a copy of this order and all unpublished decisions cited therein to Plaintiff pro se.
SO ORDERED. Dated: September 19, 2014
New York, New York
United States District Judge