Weiss v. City University of New York

FAIGY RACHEL WEISS, Plaintiff, v. CITY UNIVERSITY OF NEW YORK, et al., Defendants.

No. 17-CV-3557 (VSB)

United States District Court, S.D. New York

July 2, 2021

Faigy Rachel Weiss Brooklyn, NY Pro se Plaintiff

Johane Severin Erin Patricia Kandel Steven Leon Banks New York State Office of the Attorney General New York, NY Counsel for Defendants

OPINION & ORDER

VERNON S. BRODERICK, United States District Judge:

Before me is Defendants' motion to dismiss pro se Plaintiffs Second Amended Complaint. For the reasons set forth below Defendant's motion to dismiss is GRANTED in part and DENIED in part.

I. Background^[1] and Procedural History

Plaintiff commenced this action on May 11, 2017 by filing a request to proceed in forma pauperis, (Doc. 1), and a complaint against the City University of New York (“CUNY”), the City University of New York Board of Trustees, Hunter College of the City University of New York, the Silberman School of Social Work at Hunter College, and four CUNY administrators Nireata Seals, John Rose, Jennifer Raab, and Roberta Nord, alleging various claims of discrimination in connection with the rejection of her application for admission to the “Masters of Social Work” (“MSW”) program at the Silberman School of Social Work at Hunter College, (Doc. 2).

As part of the Order of Service dated June 6, 2017, I reviewed the initial complaint based upon Plaintiff's in forma pauperis status, as authorized by 28 U.S.C. § 1915(e)(2)(B), and dismissed on the basis of Eleventh Amendment immunity Plaintiff's (1) § 1981 and § 1983 claims asserted against CUNY, the CUNY Board of Trustees (“CUNY Board”), Hunter College, and the Silberman School, and (2) the § 1981 and § 1983 claims for money damages asserted against Defendants Rose, Raab, Seals, and Nord in their official capacities. (Doc. 5.) I also dismissed Plaintiff's Title VI claims against Defendants Rose, Raab, Seals, and Nord, because as individuals they do not receive federal funding. (Id.)

After requesting and receiving several extensions, Plaintiff filed her Amended Complaint on April 13, 2018, against CUNY; the CUNY Board members in their official and individual capacities; Hunter College of CUNY; the Silberman School of Social Work at Hunter College; James Milliken, former chancellor of CUNY, in his individual capacity; and Nireata Seals, John Rose, Jennifer Raab, Roberta Nord, and Eric T. Schneiderman, in their official and individual capacities. (Doc. 31.) On June 19, 2018, CUNY, Milliken, Seals, Rose, Raab and Nord all moved to dismiss the Amended Complaint, (Doc. 36), noting, among other things, that Hunter College and the Silberman School are not suable entities and that CUNY is the only proper institutional defendant, (id. 2 n.2). On August 13, 2018, after being served, the CUNY Board members in their official capacity, Eric T. Schneiderman in his individual capacity, and Barbara D. Underwood, then Acting Attorney General, in her official capacity, filed a motion to dismiss joining the June 19, 2018 motion to dismiss filed by the other Defendants. (Doc. 47.) By Opinion & Order dated March 18, 2019, I dismissed all of Plaintiff's claims except for her (1) Title VI claim against CUNY; (2) § 1983 claims against the CUNY Board, Milliken, Seals, Rose, Raab, and Nord in their individual capacities; and (3) § 1981 claims against the CUNY Board, Milliken, Seals, Rose, Raab, and Nord in their individual capacities (“March 18 Opinion & Order”). (Doc. 65.)

CUNY, the CUNY Board, Milliken, Seals, Rose, Raab, and Nord filed an answer on April 8, 2019. (Doc. 67.) I then held an initial pretrial conference on May 14, 2019, at which Defendants stated their intent to move under Federal Rule of Civil Procedure 12(c) to dismiss most of the remaining claims against Defendants in their individual capacities. Plaintiff indicated a desire to (1) file a second amended complaint and (2) to seek recusal of the Attorney General's Office from this case. During the conference, and subsequently in a written order dated June 6, 2019, I directed Defendants to file their motion to dismiss by June 20, 2019 and granted Plaintiff leave to subsequently file a second amended complaint, and directed Plaintiff to submit a letter requesting the amount of time she would need to do so. (Doc. 75.) I also directed Plaintiff to inform me by letter whether she intended to file a motion seeking removal of the Attorney General's Office from this case, and if so, how much time she would need to file such a motion. (Id.) Finally, the parties were directed to meet and confer and submit a proposed case management plan and scheduling order. (Id.) On June 10, 2019, I issued an order directing the clerk to attempt to locate pro bono counsel to assist Plaintiff with propounding discovery, (Doc. 76), and on October 18, 2019, pro bono counsel filed their notices of limited appearance, (Docs. 95, 96).

On June 20, 2019, Defendants filed their motion to dismiss the Amended Complaint pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (Doc. 78.) On June 21, 2019, the parties submitted a proposed case management plan that scheduled the close of discovery for February 29, 2020. (Doc. 87.) Subsequently, Plaintiff submitted a letter informing me that she wished to amend her complaint and move for recusal of the Attorney General. (Doc. 88.) By order dated July 1, 2019, I directed Plaintiff to file her recusal motion by July 29, 2019, and her second amended complaint by August 29, 2019. (Doc. 89.)

On July 29, 2019, Plaintiff submitted a letter requesting “permission to attend the MSW graduate program at Hunter College Silberman School of Social Work as a full time student with full tuition waiver/scholarship, living stipend and medical/dental insurance as part of preliminary relief.” (Pl.'s 7/29/19 Ltr.)^[2] Plaintiff also asserted that it is “a conflict of interest for the attorney general to represent a state employee who has violated CUNY, state, city and federal laws as it contradicts the mission of the NYAG.” (Id.) On August 5, 2019, Defendants filed a letter opposing this request on the grounds that Plaintiff failed to make the showing required for a preliminary injunction and that her motion to disqualify the Attorney General failed as a matter of law. (Defs.' Opp.)^[3] On August 21, 2019, Plaintiff submitted a letter in further support of her request. (“Pl.'s 8/22/19 Ltr.”)^[4]

On August 29, 2019, Plaintiff filed a Second Amended Complaint that was virtually identical to her Amended Complaint, except that references to Eric T. Schneiderman, the former Attorney General of New York, were replaced by references to Letitia James, the current Attorney General of New York. (See generally SAC.)^[5]

On September 17, 2019, Defendants submitted a letter requesting that I dismiss the claims that I had previously dismissed and that Plaintiff reasserted in the Second Amended Complaint, and also asked that I set a briefing schedule for Defendants to renew their second motion to dismiss. (Defs.' 9/17/19 Ltr.)^[6] By order dated October 11, 2019, I (1) denied Plaintiffs request for a preliminary injunction; (2) denied Plaintiffs request to disqualify the Attorney General's Office as counsel to Defendants; and (3) granted Defendants' request to dismiss reasserted causes of action in Plaintiffs Second Amended Complaint, but denied Defendants' request that I dismiss the newly asserted cause of action against Attorney General James. (Doc. 100.)

On December 6, 2019, Defendants filed the motion to dismiss Plaintiffs' Second Amended Complaint. (Docs. 101-105.) Plaintiff filed her opposition on March 18, 2020, (Doc. 113), and Defendants filed the reply on April 20, 2020, (Doc. 120).

II. Legal Standards

A. Rule 12(b)(6)

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), “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 will have “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. This standard demands “more than a sheer possibility that a defendant has acted unlawfully.” Id. “Plausibility . . . depends on a host of considerations: the full factual picture presented by the complaint, the particular cause of action and its elements, and the existence of alternative explanations so obvious that they render plaintiff's inferences unreasonable.” L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 430 (2d Cir. 2011).

In considering a motion to dismiss, a court must accept as true all well-pleaded facts alleged in the complaint and must draw all reasonable inferences in the plaintiff's favor. Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 237 (2d Cir. 2007). A complaint need not make “detailed factual allegations, ” but it must contain more than mere “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Iqbal, 556 U.S. at 678 (internal quotation marks omitted). Finally, although all allegations contained in the complaint are assumed to be true, this tenet is “inapplicable to legal conclusions.” Id. A complaint is “deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002) (quoting Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995)).

Even after Twombly and Iqbal, a “document filed pro se is to be liberally construed and . . . must be held to less stringent standards...