Islam v. Melisa

MD. ASHIK ISLAM and MD. AMINUL ISLAM, Plaintiffs, v. DR. MELISA, Class Professor; PROFESSOR TIM CORKERY, Speech Dep't Coordinator;MICHELLE SABIO, Int'l Counselor; PROVOST PANAYIOTIS MELETIES;CITY UNIV. OF NEW YORK (CUNY) - YORK COLLEGE; NEW YORK CITY TRANSIT AUTHORITY;MTA NEW YORK CITY TRANSIT; VISA OFFICER/CONSULAR, Defendants.

18-CV-2535(KAM)(LB)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

March 24, 2020

MEMORANDUM & ORDER

KIYO A. MATSUMOTO, United States District Judge:

Plaintiff Ashik Islam ("Islam") commenced this pro se action against (1) the New York City Transit Authority ("NYCTA") and the Metropolitan Transit Authority ("MTA") (the "Transit Defendants"); (2) the City University of New York ("CUNY") and several CUNY employees, including "Dr. Melisa," Professor Tim Corkery ("Corkery"), Michelle Sabio ("Sabio"), and Provost Panayiotis Meleties ("Meleties"), all in their official capacities (the "CUNY Defendants"); and (3) a "Visa Officer" at the U.S. Embassy in Dhaka, Bangladesh, in her official capacity. Islam sought relief against these defendants for, respectively, injuries he sustained in a subway accident, his inability to secure a bachelor's degree from CUNY, and the denial of his request for a visa to enter the United States.

The Court previously dismissed Islam's claims against the Visa Officer based on the doctrine of consular non-reviewability. The Transit Defendants now move (1) to amend their answer and (2) to dismiss Islam's claims as time-barred. Certain CUNY Defendants, similarly, move to dismiss Islam's claims against them (1) as time-barred and (2) for failure to state a claim upon which relief may be granted. For the reasons set forth below, the Court GRANTS the defendants' motions.

Background

The following facts are derived from Islam's complaint and opposition to the defendants' motions, see Walker v. Schult, 717 F.3d 119, 122 n.1 (2d Cir. 2013) ("A district court deciding a motion to dismiss may consider factual allegations made by a pro se party in his papers opposing the motion."), and are accepted as true for purposes of this Memorandum and Order, see Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).

Islam studied pharmaceutical sciences at CUNY's York College from Fall 2008 through Fall 2013. (ECF No. 1, Complaint ("Compl.") at 5.) This action arises from injuries Islam sustained in a subway accident during his last semester at CUNY and the ensuing consequences. (See generally id.)

On September 15, 2013, Islam slipped and fell on a "faulty" escalator at the Jamaica Van Wyck subway station in Queens, New York. (Id.) Islam's nail "came out" and began tobleed, and he started to feel pain in his head, neck, both shoulders, hip, left leg, and left knee. (Id.) Islam self-medicated because he "was in too [much] pain that [he] could not move even to visit any [d]octor and also [didn't] ha[ve] enough money after paying tuition fees for [the] Fall 2013 semester." (Id.) Islam "was in pain and suffered more than four months all together." (Id.)

Islam informed Dr. Melisa, his Speech 101 professor, and Corkery, the Speech Department coordinator, of his accident. (Id.) Islam claims that his injuries prevented him from attending Speech 101 for roughly two months, though he "submitted all [his] other course work assignment through email." (Id.) As the Speech 101 exam approached, Islam reached out to Corkery and stressed that as "an International Student [on a student visa]," and because "Fall 2013 [was his] last Semester, if [he] [got] a 'F' grade [in Speech 101], [he would] have to take again 12 Credits for the following Semester." (Id.) Corkery advised Islam to appear for his final exam and indicated he would "take care of it" and "do something positively in favor of [Islam]." (Id.)

Islam communicated with Sabio, the International Student Advisor, regarding his status in the United States. (Id.) Islam audited for graduation in Fall 2013, but the graduation ceremony would not take place until June 2014. (Id.)Sabio advised Islam to leave the United States, noting that as an international student, Islam could not remain in the country for more than "30 days after auditing for [his] [g]raduation," presumably for visa-related reasons. (Id.) Sabio told Islam that CUNY would mail his diploma to Bangladesh following the graduation ceremony in June 2014. (Id.) Islam followed this advice and left the United States for Bangladesh on January 24, 2014. (Id.)

Islam asserts that Sabio and Grace Ann Prescord ("Prescord") - an International Students Advisor who is not named as a defendant - failed to properly "guide" him through the "laws [and] rules of th[is] country" during his time at CUNY. (ECF No. 37, Islam Opp. ("Opp."), at 4.) These advisors "never informed [Islam] about [how to handle] any medical emergency situation." (Id.) Nor did these advisors "guide[] [Islam] about how to set up or plan[] for [his] credits so that [he] did not have to take extra credits." (Id.) This appears to be a reference to the fact that Islam took 130 credits worth of courses during his time at York College, above the 120 credits required by his degree program.

Prescord also admitted to Islam that, in 2008, she erred by issuing Islam's Form I-20 for only four years, rather than for five years as she does for most international students. (Id.) Islam does not specify when this conversation took place.The opposition, however, indicates that Prescord made this admission "when [Islam] had to renew [his] Form I-20 again to maintain [his] F-1 status," indicating that this conversation took place during his time at CUNY. (See id.)

Upon returning to Bangladesh,¹ Islam learned he had failed Speech 101 and, as a result, CUNY could not award him a bachelor's degree. (Compl. at 6.) Islam contacted Meleties, a CUNY Provost, and "explained [to] him the whole scenario," including the advice he received from Corkery that he should appear for the final exam in Speech 101 and that Corkery would "do something positively" in Islam's favor. (Id.) After some back and forth over email, Meleties, at Islam's request, allowed Islam to submit make-up assignments for Speech 101. (Id.) Meleties told Islam to submit one ten-to-twelve-minute speech or two five-minute speeches. (Id.) Islam "set up [his] speech on [his] cell phone," "uploaded it through [his] brother's You Tube account," emailed it to Corkery, and informed Meleties of the completion of the project. (Id.)

Corkery reviewed Islam's submission and advised Islam that it was deficient, apparently because the submission contained only audio data, with no picture of Islam. (See id.) Islam responded that his cell phone did not have the capability to record videos, that he "could not upload [his] picture" because he "did not know how to do it," and that no one told him to include his picture with the speech. (See id.) Islam "contacted [Provost Meleties] about [Corkery's refusal to accept the project as submitted by Islam]." (Id.) Like Corkery, Meleties "rejected [Islam's] request to accept [the online submission]." (Id.) Islam did not receive an opportunity to re-submit the speeches. (Opp. at 4.)

Islam continued to reach out to Meleties to discuss the possibility of obtaining a bachelor's degree. (See Compl. at 6.) Meleties advised Islam to apply to be readmitted to CUNY to complete the three course credits, presumably those he lost by failing Speech 101. (Id.) Islam "applied [to CUNY] again as an F-1 Student and got accepted." (Id.) But the visa officer who interviewed Islam at the United States Embassy in Dhaka, Bangladesh "did not grant [him] an F-1 Visa." (Id.) Islam's most recent interaction with CUNY occurred on December 6, 2017, when Meleties again denied Islam's request that CUNY award him a bachelor's degree. (Id. at 4.)

On January 17, 2018, Islam submitted complaints to (1) the New York State Education Department, Office of College and University Evaluation; (2) the U.S. Department of Education, Office for Civil Rights (in New York and Washington, D.C.); and (3) CUNY, Office of the General Counsel. (Id. at 6-7.) Islam does not describe the grievances he lodged with each office, or the resolution of said grievances. (See id.) Islam just states that he "did not get yet any satisfactory reply from [those offices]." (Id. at 7.)

Islam asserts that he is "jobless, lost [his] social status and never will get an official job because [he] [doesn't] have Certificate of Bachelor or Master[']s Degree and also qualifying age," and his "life is destroyed and became unstable and miserable." (Id. a 7.) Islam "spent 5 years in US for education and [his] family has spent more than US $125,000.00 for [his] education but [he] ha[s] no career." (Id.) Islam argues that "CUNY-York College and [the other defendants] [are] liable for everything" because "they discriminated [against] [him] because [he is] from [a] 3^rd [w]orld [c]ountry and different race, color and religion." (Compl. at 7.) Islam seeks $2.5 million in damages, the issuance of his B.S. degree, and a visa to enter the United States as relief. (Id. at 8.)

Procedural History

On April 26, 2018, Islam and his father, Aminul Islam, filed this pro se action. (Id. at 1.) The pro se complaint is unfortunately somewhat difficult to decipher, particularly because it lists several purported causes of action, most of which are not cognizable as claims:

Sections: 1983 and or Violation of: 1) Student Bill of Rights 2) International Student's Bill of Rights 3) Human Rights 4) Equal Protection of the Law 5) Discrimination 6) Negligence and Misguiding for Set-up Subjects/Credits on Time Frame 6) Destroy Educational Life 7) Destroy Gov. Official Job Service Opportunities 8) Destroy Non-Gov./Private Official Job Service Opportunities and also 9) Personal Injury Claim 10) Compensation from all Parties for making my life Destroying, Unstable and Miserable.

(Id. at 4.) However, the complaint's allegations appear to fall into three distinct categories: (1...