Malave-Sykes v. Children's Home of Wyoming Conference et al

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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.
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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).
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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).
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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
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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
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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
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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
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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).
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