1:19-cv-10471
S.D.N.Y.May 5, 2020Background
- Pro se plaintiff Anthony Hermo, proceeding in forma pauperis, sued the City of New York and several named City employees alleging violations related to his 2001 civil service police‑officer application.
- Court ordered plaintiff to amend his complaint to address pleading deficiencies; plaintiff filed an amended complaint after two extensions.
- Amended pleading references the ADA, requests psychological interview documentation, and attaches forms showing he failed a 2001 civil service exam and that a fingerprint search disclosed no prior arrest.
- Plaintiff named specific City employees (records access officer, supervisor, investigator, others) but did not plead facts showing how they caused any constitutional or statutory violation.
- The Court found the amended complaint lacked factual allegations sufficient to state a plausible claim and therefore dismissed under the screening statute; further leave to amend was denied as futile.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the amended complaint states a plausible claim for relief | Hermo alleges wrongdoing tied to his 2001 civil service exam, ADA‑related accommodation issues, and requests records and damages | (Implicit) Defendants' position: pleadings fail to allege facts tying them to any violation | Dismissed for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii) |
| Whether plaintiff may be allowed another opportunity to amend | Hermo sought to proceed pro se and already filed an amended complaint | (Implicit) No basis to require further amendment given prior opportunities | Leave to amend denied as futile because defects are incurable |
| Whether the court must consider appointing a guardian ad litem under Rule 17(c) | Hermo stated he would proceed without a guardian | No evidence presented that plaintiff is incompetent | Court concluded no reason to treat plaintiff as incompetent; Rule 17(c) need not be applied |
| Whether screening under IFP statute and Fed. R. Civ. P. standards requires dismissal | Hermo argues entitlement to relief (general requests for decision and damages) | Screening standards require factual allegations sufficient to infer liability | Court applied pleading standards and dismissed under IFP screening and Rule 12(h)(3) principles |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (pleading must contain sufficient factual matter to state a plausible claim)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (U.S. 2007) (legal conclusions insufficient; complaint must plead enough facts to state a claim)
- Triestman v. Fed. Bureau of Prisons, 470 F.3d 471 (2d Cir. 2006) (pro se pleadings must be read to raise the strongest claims they suggest)
- Livingston v. Adirondack Beverage Co., 141 F.3d 434 (2d Cir. 1998) (IFP complaints may be dismissed if frivolous or fail to state a claim)
- Harris v. Mills, 572 F.3d 66 (2d Cir. 2009) (courts must construe pro se complaints liberally)
- Ruotolo v. City of New York, 514 F.3d 184 (2d Cir. 2008) (leave to amend may be denied where plaintiff already had opportunity to cure defects)
- Salahuddin v. Cuomo, 861 F.2d 40 (2d Cir. 1988) (same principle on amendment for pro se litigants)
- Ferrelli v. River Manor Health Care Ctr., 323 F.3d 196 (2d Cir. 2003) (when to consider competency and potential application of Rule 17(c))