3:25-cv-01547•Malave-Sykes v. Children's Home of Wyoming Conference et al
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- 1 - UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK JOSHUA MALAVE-SYKES, Plaintiff, 3:25-CV-1547 v. (AMN/DJS) CHILDREN’S HOME OF WYOMING CONFERENCE and GEORGE T. DERMODY, Defendants. APPEARANCES: JOSHUA MALAVE-SYKES Plaintiff, Pro Se Endicott, New York 13760 DANIEL J. STEWART United States Magistrate Judge REPORT-RECOMMENDATION AND ORDER The Clerk has forwarded for review a civil Complaint filed by Plaintiff. Dkt. No. 1, Compl. The filing fee in this action has not been paid, but Plaintiff has filed a motion to proceed in forma pauperis. Dkt. No. 2. That Motion has been granted. The matter has been referred to the undersigned for an initial review pursuant to L.R. 72.3. Case 3:25-cv-01547-AMN-DJS Document 6 Filed 12/23/25 Page 1 of 8
- 2 - I. FACTUAL ALLEGATIONS IN THE COMPLAINT The specific nature of the allegations lodged in the Complaint are limited. Plaintiff contends that he was “unlawfully terminated [from] his employment on February 19, 2025.” Compl. at p. 4. He appears to allege that this was on the basis of his race and disability, neither of which are specified in the Complaint. See id. at p. 2. Plaintiff also alleges that he made numerous complaints about harassment and verbal abuse at the hands of a supervisor and that he may have been terminated in retaliation for those complaints. Id. at p. 2. Finally, the Complaint makes allegations that Plaintiff was denied overtime pay as a result of being given rides home by a supervisor at the end of shifts. Id. at p. 3. II. GOVERNING LEGAL STANDARD 28 U.S.C. § 1915(e) directs that, when a plaintiff seeks to proceed in forma pauperis, “(2) . . . the court shall dismiss the case at any time if the court determines that – . . . (B) the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).1 In reviewing a pro se complaint, the court has a duty to show liberality toward pro se litigants, see Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam), and should exercise “extreme caution . . . in ordering sua sponte dismissal of a pro se complaint 1 To determine whether an action is frivolous, a court must look to see whether the complaint “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). Case 3:25-cv-01547-AMN-DJS Document 6 Filed 12/23/25 Page 2 of 8
- 3 - before the adverse party has been served and both parties (but particularly the plaintiff) have had an opportunity to respond.” Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983) (internal citations omitted). Therefore, a court should not dismiss a complaint if the plaintiff has stated “enough facts to state a claim to relief that is plausible on its face.” 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 556). Although a court should construe the factual allegations in the light most favorable to the plaintiff, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Id. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 555). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not show[n] - that the pleader is entitled to relief.” Id. at 679 (quoting FED . R. CIV . P. 8(a)(2)). Rule 8 of the Federal Rules of Civil Procedure “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 555). Thus, a pleading that only “tenders naked assertions devoid of further factual enhancement” will not suffice. Id. (internal quotation marks and alterations omitted). Case 3:25-cv-01547-AMN-DJS Document 6 Filed 12/23/25 Page 3 of 8
- 4 - III. DISCUSSION A. Title VII The Complaint is drafted on a form complaint for claims being brought under Title VII of the Civil Rights Act of 1964. “A plaintiff asserting a Title VII discrimination claim must allege facts showing that ‘(1) the employer took adverse action against him and (2) his race, color, religion, sex, or national origin was a motivating factor in the employment decision,’ which can be shown ‘by alleging facts that directly show discrimination or facts that indirectly show discrimination by giving rise to a plausible inference of discrimination.’” Jackson v. Roe, 2016 WL 3512178, at *3 (E.D.N.Y. June 22, 2016) (quoting Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 86-87 (2d Cir. 2015)). Plaintiff claims that he has been discriminated against based on his race and disability. Compl. at p. 2. He also appears to allege that he was the victim of retaliation under the statute. Id. At this stage, dismissal of the Complaint is recommended with leave to amend to provide more definite pleading of the nature of Plaintiff’s claims. Courts have been careful to note that “conclusory allegations [are] insufficient to support a Title VII claim.” DuBois v. State of N.Y., 966 F. Supp. 144, 147 (N.D.N.Y. 1997); Lore v. City of Syracuse, 583 F. Supp. 2d 345, 365 (N.D.N.Y. 2008). Plaintiff checked boxes alleging that he was discriminated against based on his race and disability, Compl. at p. 2, but he does not indicate either his race or the nature of his alleged disability in the Complaint. Despite Case 3:25-cv-01547-AMN-DJS Document 6 Filed 12/23/25 Page 4 of 8
- 5 - the fact that he “identifies [him]self as a member of a protected class, []he presents no facts indicating that []he was discriminated against on that basis.” Matthew v. JP Morgan Chase Bank, NA, 2019 WL 13277873, at *2 (E.D.N.Y. Apr. 4, 2019). Under Federal Rule of Civil Procedure 8, a pleading must provide sufficient specificity “to give fair notice of the claim being asserted so as to permit the adverse party the opportunity to file a responsive answer [and] prepare an adequate defense.” Hudson v. Artuz, 1998 WL 832708, at *1 (S.D.N.Y. Nov. 30, 1998) (quoting Powell v. Marine Midland Bank, 162 F.R.D. 15, 16 (N.D.N.Y. 1995)). Under that standard, the omissions here warrant dismissal, though with leave to amend, at this juncture. Matthew v. JP Morgan Chase Bank, NA, 2019 WL 13277873, at *2; Lucas v. Apple Food Serv. of New York, LLC, 2015 WL 6507495, at *3 (E.D.N.Y. Oct. 27, 2015). To the extent Plaintiff also seeks to hold Defendant Derrody liable under Title VII that claim is also subject to dismissal, but without leave to amend because “Title VII does not provide for individual liability.” Cayemittes v. City of New York Dep’t of Hous. Pres. & Dev., 641 F. App’x 60, 62 (2d Cir. 2016) (citing cases). B. Other Claims Plaintiff also makes reference to the withholding of overtime pay in violation of the Fair Labor Standards Act (“FLSA”). Compl. at p. 3. “To plead a plausible FLSA overtime claim, Plaintiffs must provide sufficient detail about the length and frequency of their unpaid work to support a reasonable inference that they worked more than forty Case 3:25-cv-01547-AMN-DJS Document 6 Filed 12/23/25 Page 5 of 8
- 6 - hours in a given week.” Nakahata v. New York-Presbyterian Healthcare Sys., Inc., 723 F.3d 192, 201 (2d Cir. 2013). Here, again, Plaintiff has failed to provide any specific factual pleading regarding his work schedule, hours worked, or when he purportedly performed unpaid overtime. This failure is insufficient to put Defendants on proper notice. Dismissal with leave to amend, therefore, is warranted. Similarly, while Plaintiff makes reference to the “violation of New York State and Federal privacy laws,” Compl. at p. 4, he cites to no specific statutes or law. That makes it impossible for the Court to address whether Plaintiff has sufficiently asserted a viable privacy claim. Dismissal, again with leave to amend, is the proper remedy in this circumstance. C. Leave to Amend “Ordinarily, a court should not dismiss a complaint filed by a pro se litigant 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.’” Bruce v. Tompkins Cnty. Dep’t of Soc. Servs. ex rel. Kephart, 2015 WL 151029, at *4 (N.D.N.Y. Jan. 7, 2015) (quoting Branum v. Clark, 927 F.2d 698, 704-05 (2d Cir. 1991)). “However, where the grounds for dismissal offer no basis for curing the defects in the pleading, dismissal with prejudice is appropriate.” Norwood v. Albany City Police Dep’t, 2019 WL 7593292, at *2 (N.D.N.Y. Aug. 12, 2019), report and recommendation adopted, 2019 WL 5415873 (N.D.N.Y. Oct. 23, 2019). Here, for the reasons set forth above, a claim against an Case 3:25-cv-01547-AMN-DJS Document 6 Filed 12/23/25 Page 6 of 8
- 7 - individual defendant under Title VII cannot be resolved by better pleading and so that claim should be dismissed without leave to amend. Plaintiff could, perhaps, make factual allegations to establish a claim with respect to the remaining allegations and so those claims should be dismissed with leave to amend. The Court advises Plaintiff that should he be permitted to amend his Complaint, any amended pleading he submits must comply with Rules 8 and 10 of the Federal Rules of Civil Procedure. Any such amended complaint, which shall supersede and replace in its entirety the previous Complaint filed by Plaintiff, must contain sequentially numbered paragraphs containing only one act of misconduct per paragraph. Any amended complaint should specify the nature of Plaintiff’s claims in detail. IV. CONCLUSION For the reasons stated herein, it is hereby RECOMMENDED, that Plaintiff’s Complaint be DISMISSED as set forth above; and it is ORDERED, that the Clerk of the Court serve a copy of this Report- Recommendation and Order upon the parties to this action. Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14)2 days within which to file written objections to the foregoing report. Such objections shall be filed 2 If you are proceeding pro se and are served with this Order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the order was mailed to you to serve and file objections. F ED. R. CIV. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal Case 3:25-cv-01547-AMN-DJS Document 6 Filed 12/23/25 Page 7 of 8
- 8 - with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); see also 28 U.S.C. § 636(b)(1); F ED . R. CIV . P. 72 & 6(a). Dated: December 23, 2025 Albany, New York holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. FED. R. C IV. P. 6(a)(1)(C). Case 3:25-cv-01547-AMN-DJS Document 6 Filed 12/23/25 Page 8 of 8
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