DR. KAMIAR ALAEI, Plaintiff, v. STATE UNIVERSITY OF NEW YORK AT ALBANY, HAVIDAN RODRIGUEZ, individually and in his official capacity on behalf of the STATE UNIVERSITY OF NEW YORK AT ALBANY, BRUCE P. SZELEST, individually and in his official capacity on behalf of the STATE UNIVERSITY OF NEW YORK AT ALBANY, and JAMES R. STELLAR, individually and in his official capacity on behalf of the STATE UNIVERSITY OF NEW YORK AT ALBANY, Defendants.
1:21-cv-00377 (BKS/TWD)
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
September 7, 2022
For Plaintiff:
Joseph F. Castiglione
Young Sommer, LLC
Five Palisades Drive, Suite 300
Albany, NY 12205
For Defendants:
Letitia James
Attorney General for the State of New York
Helena O. Pederson
David C. White
Assistant Attorneys General, of Counsel
Office of the Attorney General
The Capitol
Albany, NY 12224
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Plaintiff Kamiar Alaei brings this action against the State University of New York at Albany (“SUNYA“), his former employer, as well as Defendants Havidan Rodriguez, Bruce P. Szelest, and James R. Stellar (collectively, “individual defendants“).1 (Dkt. No. 1). Plaintiff alleges that Defendants: discriminated against him on the basis of sex, in violation of Title IX of the Education Amendments of 1972,
A. Plaintiff‘s Background and Employment with SUNYA
Plaintiff, a male born and raised in Iran and of Shi‘i/Yarstan faith, is “a global health policy expert” who studies “medicine, epidemiology, international health, health policy, and international human rights law.” (Dkt. No. 1, ¶¶ 25, 28). He began his career promoting the prevention and care of HIV/AIDS and helped develop several harm-reduction programs, as well as a medical clinic, in Iran. (Id. ¶¶ 28, 31). While in Iran, Plaintiff was convicted of trying to overthrow the government “in a secret, one-day trial” and was detained for two years. (Id. ¶ 29). He states that his conviction and resulting detention stemmed from his association with the United States and the Iranian government‘s opposition to his work. (Id.). Plaintiff continued his work upon his release; he was published in various academic journals and won several awards, including the Ellis Island Medal of Honor Award. (Id. ¶¶ 26-27, 31-34).
In 2014, Plaintiff was appointed by SUNYA as a lecturer and director of SUNYA‘s Global Institute for Health and Human Rights (“GIHHR“), which he founded. (Id. ¶¶ 34, 36). The GIHHR‘s goals “were to advance the understanding аnd protection of health and human rights in a theoretical, academic, practical, and ethical context.” (Id. ¶ 36). Plaintiff‘s employment was effectuated by Appointment Letter in April 2014 and renewed through 2018. (Id. ¶ 37; Dkt. No. 1-1, at 2-3 (August 16, 2014 Appointment Letter)). His contributions to SUNYA were consistently commended, and having received no discipline or negative evaluations, Plaintiff was promoted to Associate Dean for Global and Interdisciplinary Research in January 2016. (Dkt. No. 1, ¶¶ 39-42). He was also the “principal investigator of two major
As part of his employment, Plaintiff was a member of the United University Professions, and as such, was entitled to the bеnefits and protections established in the 2011-2016 Contract Between United University Professions and the State of New York (“UUP Agreement“). (Id. ¶¶ 43-44). The UUP Agreement provided Plaintiff with certain rights pertaining to disciplinary actions. (Id. ¶ 46). It stated that discipline could only be imposed for “just cause,” and that SUNYA employees must receive a notice specifying both the conduct for which discipline is being imposed and the proposed penalty. (Id. ¶ 47). The UUP Agreement also included several antidiscrimination provisions. (See Dkt. No. 1-2, at 4). Specifically, in §§ 10.1 and 10.2, the State agreed to continue its “established policy prohibiting discrimination” on race, religion, national origin, and sex. (Id.).
B. Plaintiff‘s Placement on Alternative Assignment
On February 8, 2018, acting in response to concerns allegedly rаised about Plaintiff in a student complaint,4 Randy Stark, an Associate Vice President in SUNYA‘s Office of Human Resource Management, sent a letter to Plaintiff invoking the alternative assignment provision of the UUP Agreement. (Dkt. No. 1, ¶¶ 53, 55, 220).5 However, Plaintiff alleges that neither SUNYA, nor Stark, provided him with any explanation as to why he was placed on alternative assignment. (Id. ¶ 56). The letter instructed Plaintiff not to discuss the matter with anyone, including SUNYA staff, students, and alumni, and SUNYA subsequently blocked Plaintiff from accessing
Following Plaintiff‘s placement on an alternative assignment, Stark began a Title IX investigation. (Id. ¶¶ 93, 95). However, Plaintiff alleges that Title IX personnel later disclosed that there was never a formal or informal complaint made against Plaintiff. (Id. ¶ 190).
C. Plaintiff‘s Letters of Complaint and Grievance
In letters dated February 16 and 28, 2018 to SUNYA, Plaintiff‘s attorney wrote objecting to SUNYA‘s actions toward Plaintiff, demanded that SUNYA comply with the UUP Agreement, and demanded that SUNYA “provide [Plaintiff] with access to his email accounts and allow [Plaintiff] to address his federal grant projects.” (Id. ¶ 87). On March 20, 2018, Plaintiff filed a grievance pursuant to the UUP Agreement alleging that SUNYA wrongfully disciplined him by removing him from his position “without conducting [a] fair and unbiased investigation.” (Id.
D. Discussions of Plaintiff‘s “Non-Renewal”
Plaintiff alleges that Defendants had decided as early as March 2018 that Plaintiff would not be returning. A March 26, 2018, email exchаnge between Brian Selchick, a SUNYA employee, and Chantel Cleary, SUNYA‘s Title IX Coordinator, reflects Cleary‘s understanding that, at that point it had been agreed that Plaintiff would not be returning to his position and Selchick‘s understanding that Plaintiff would need to return for a “short” period of time before the “non-renewal pre buy out.” (Dkt. No. 1-6, at 2). Notes dated April 3, 2018, reflect Selchick‘s ideas for how to “maintain the integrity of the non-renewal W/ or W/O the [Notice of Discipline]/ Interrogation.” (Dkt. No. 1-8, at 2). The notes also state that it was SUNYA‘s “[g]oal ... to make sure [Plaintiff] does not come back.” (Id.). If performance evaluations were necessary to support non-renewal, Selchick indicated that SUNYA “could recreate thеm.” (Id.). On April 4, 2018, Leslie Zwicklebauer advised Selchick, Stark, and Cleary that, if they wished to seek non-renewal of Plaintiff‘s employment, they would need a “current performance program and an evaluation” before issuing a formal notice of non-renewal. (Dkt. No. 1, ¶ 142).
Several weeks later, on April 28, 2018, SUNYA personnel contacted Dr. Harvey Charles, Plaintiff‘s supervisor, and asked him to sign a document for Plaintiff‘s non-renewal. (Id. ¶ 150). However, the document was addressed to Provost Stellar and written as if Dr. Charles authored it himself. (Id. ¶ 151). Dr. Charles refused to sign the document because he felt uncomfortable making a recommendation “without a basis to do so,” and asked that the matter be handled differently. (Id. ¶ 152). Nevertheless, on April 30, 2018, SUNYA personnеl provided Plaintiff
E. Plaintiff‘s Termination
On May 14, 2018, SUNYA personnel communicated to Plaintiff that the provost approved and signed the proposed non-renewal and communicated no basis or reasoning for doing so to Plaintiff. (Id. ¶ 166). Shortly after, in late May or early June 2018, Rodriguez approved the predetermination for nоn-renewal and the decision to provide Plaintiff with only one year of continued employment.7 (Id. ¶ 181).
Plaintiff further claims that Defendants recognized that there was no “just cause” for his non-renewal. (Id. ¶ 185). To support this claim, Plaintiff cites emails from July 6 and 9, 2018, which show SUNYA personnel discussing their failure to establish a basis to continue the investigation. (Id. ¶ 186). In a July 6, 2018, email, Stark wrote the following to SUNYA employee Valerie Ayers:
I‘ve attached a counseling letter we worked on for Kamiar Alaei. It was a struggle writing it as there wasn‘t anything to counsel him on since the sexual misconduct allegations were unfounded. We planned to give him policies on sexual harassment, Workplace Violence etc., but for what purpose, as wе are going to non-renew him and buy him out. After discussing the question, does it really serve any purpose to issue this memo other than it gives KA and his attorney more info for their war chest?
Subsequently, on August 9, 2018, Stark and Selchick conducted a “counseling session” with Plaintiff and shared that there was in fact no just cause to terminate, or basis to discipline, Plaintiff, and that no SUNYA policies were violated. (Id. ¶¶ 194-95). At the end of the session, Plaintiff was directed to return to work the next morning. (Id. ¶ 196).
The next day, on August 10, 2018, SUNYA terminated Plaintiff‘s employment by letter without explanation and despite his entitlement to two years of guaranteed employment under the UPA Agreement and Appointment Letter. (Id. ¶¶ 171, 197). Nevertheless, the termination letter stated that Plaintiff would not be renewed and that he would be paid for one year of employment, ending on August 9, 2019. (Id. ¶ 198).
F. Plaintiff‘s Professional Losses and Adverse Effects
Plaintiff alleges that he suffered various professional losses and adverse effects, physical and mental, because of Defendants’ “illegal campaign of wrongful conduct intended to violate [his] rights.” (Id. ¶ 203). For example, Plaintiff asserts that he was a finalist for a deanship at York College, but that when SUNYA announced their investigation, the College withdrew its interest. (Id. ¶ 211). Further, without access tо his email account, Plaintiff was unable to maintain two sensitive, technical, and high security grants, which demanded constant oversight; cut off from several other professional projects; unaware that he received a prestigious scholarly award; and forced to decline an invitation to speak at Los Alamos National Laboratory. (Id. ¶¶ 61-64, 76, 81). Additionally, SUNYA allegedly “deterred several organizations and funders around the
G. Allegations from Proposed Amended Complaint
As relevant here, according to the Proposed Amended Complaint, Plaintiff suffered from “severe depression and anxiety” as a result of his termination, as well as “humiliation and embarrassment with friends, family, colleagues, and respective employers.” (Dkt. No. 23-4, ¶ 275). He was prescribed medication to address his depression and anxiety. (Id. ¶ 278). Additionally, Plaintiff had pre-existing emotional distress from his imprisonment in Iran, which he alleges was exacerbated by Defendants’ conduct. (Id. ¶ 277). He also contends that he suffered physical side effects as a result of Defendants’ conduct, including sleep loss, hair loss, weight loss, and severe skin problems. (Id. ¶ 276).
III. MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS
A. Standard of Review
“The same standard applicable to
B. Analysis
1. Materials Outside the Pleadings
In opposition to Defendants’ motion for judgment on the pleadings, Plaintiff has submitted a number of documents, including: (1) a 34-page affirmation by Plaintiff‘s counsel containing facts not contained in the Complaint, (Dkt. No. 33-1); (2) Appointment Letters dated April 16, 2014, December 9, 2014, and December 4, 2017, and a change of status form dated November 20 and 21, 2017, (Dkt. No. 33-2); (3) an excerpt from the UUP Agreеment, (Dkt. No. 33-3); (4) three deposition transcripts, (Dkt. Nos. 33-4 (Selchick), 33-5 (Stark), 33-6 (Rodriguez)); (5) emails authored by SUNYA employees, Defendants, and at least one student, concerning Plaintiff, (Dkt. Nos. 37 and 33-8); and (6) the August 10, 2018 termination letter, (Dkt. No. 33-9). Defendants object to the Court‘s consideration of most of these materials. (Dkt. No. 39, at 5-7).
“Generally, consideration of a motion to dismiss under
The Court may properly consider the April 16, 2014, Appointment Letter, because, in addition to submitting it in opposition to Defendant‘s motion for judgment on the pleadings, (Dkt. No. 33-2, at 2-3), Plaintiff attached it as an exhibit to the Complaint. (Dkt. No. 1-1). The Court will also consider the August 10, 2018, termination letter, (Dkt. No. 33-9), as the Complaint expressly references and relies on the letter. (Dkt. No. 1, ¶¶ 197-99), as well as the exhibit containing Article I of the “2011-2016” UUP Agreement, (Dkt. No. 33-3). The 2011-2016 UUP Agreement is not only referenced in the Complaint, (Dkt. No. 1, ¶ 44), but Articles 5-7, 10-11, and 18-20 are attached as an exhibit to the Complaint, (Dkt. No. 1-2). Further, there is no dispute as to authenticity or accurateness of the Articles from the 2011-2016 UUP Agreement.
Turning to the Selchick, Stark, and Rodriguez depositions, (Dkt. Nos. 33-4 to 33-6), the Court notes that the Complaint refers to depositions, but, for the most рart, does so in a general manner that does not enable the Court to determine what depositions Plaintiff is relying on. (See, e.g., Dkt. No. 1 ¶ 117 (alleging that “SUNY personnel also admitted in depositions” they were not aware of aware of concerns regarding Plaintiff‘s email use), 120 (“SUNY personnel stated in depositions in the State Lawsuit that such actions were not the usual course of action by SUNYA for similar situations.“)). While the Complaint contains no reference to the Selchick deposition, it
The remainder of the exhibits Plaintiff submitted in opposition to Defendant‘s motion are neither referenced in or integral to the Complaint, and therefore will not be considered in connection with Defendants’ motion.
Defendants move to dismiss Plaintiff‘s claims against SUNYA and the individual defendants in their official capacities on the basis of sovereign immunity. (Dkt. No. 24-2, at 18-20). Plaintiff opposes the motion, arguing that by virtue of the UUP Agreement, New York State “expressly waived its immunity to claims of discrimination.” (Dkt. No. 33, at 21). The Eleventh Amendment bars suits against a state unless Congress has abrogated the state‘s sovereign immunity, the state has consented to suit, or the plaintiff is “seeking injunctive relief against a state official for an ongoing violation of law or the Constitution.” N.Y. State Corr. Officers & Police Benevolent Ass‘n v. New York, 911 F. Supp. 2d 111, 124-25 (N.D.N.Y. 2012) (citing Ex Parte Young, 209 U.S. 123 (1908)). “This jurisdictional bar also immunizes a state entity that is an ‘arm of the state,’ ... including, in appropriate circumstances, a state official acting in his or her official capacity.” In re Deposit Ins. Agency, 482 F.3d 612, 617 (2d Cir. 2007) (citation omitted); Leitner v. Westchester Cmty. Coll., 779 F.3d 130, 134 (2d Cir. 2015). The State University of New York (“SUNY“), including SUNYA, is considered an arm of the state, and as such, is entitled to sovereign immunity. See Leitner, 779 F.3d at 136 (explaining that “SUNY itself is entitled to sovereign immunity because it is ‘an integral part of the government of the State‘” (quoting Dube v. State Univ. of N.Y., 900 F.2d 587, 594 (2d Cir. 1990))). So too are SUNYA employees in their official capacities. See Deposit Ins. Agency, 482 F.3d at 617; Garcia v. S.U.N.Y. Health Scis. Ctr. Of Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001) (noting that when a plaintiff sues “individual defendants in their official capacities, he [seeks] damages from New York, and the Eleventh Amendment therefore shields [the individual defendants] to the same extent that it shields SUNY“).
However, “[i]n the Rehabilitation Act Amendments of 1986, ...
Conversely, Congress has not abrogated, and New York has not waived, sovereign immunity with respect to §§ 1981 and 1983 claims. Jackson v. Battaglia, 63 F. Supp. 3d 214, 219-20 (N.D.N.Y. 2014); Wagner v. Conn. Dep‘t of Corr., 599 F. Supp. 2d 229, 237-38 (D. Conn. 2009). Nevertheless, Plaintiff argues that, in this instance, New York waived its sovereign immunity by virtue of the UUP Agreement. (Dkt. No. 33, at 22-24). Specifically, he contends that § 10.4 of the UUP Agreement, which states, in part, that “[c]laims of illegal discrimination under Sections 10.1 and 10.2 shall ... be subject to review in accordance with State and Federal procedures,” constitutes an express waiver of immunity. (Id.). The Court disagrees. States may waive sоvereign immunity through contract provisions invoking a federal court‘s jurisdiction, but as Plaintiff acknowledges, (id. at 14), “[a] state will be deemed to have waived its immunity ‘only where stated by the most express language or by such overwhelming implications from the text as [will] leave no room for any other reasonable construction.‘” Marisol A. ex rel. Forbes v. Giuliani, 157 F. Supp. 2d 303, 313-14 (S.D.N.Y. 2001) (quoting Edelman v. Jordan, 415 U.S. 651, 673 (1974) (internal quotations omitted)). The language of § 10.4 of the UUP Agreement, which is included as an attachment to the Complaint, does not meet that burden because it is too vague. (Dkt. No. 1-2, at 4). The review of discrimination claims “in accordance with State and Federal procedures established for such purpose,” (id.) could refer to procedures other than a
In a sur-reply letter, Plaintiff wrote to “clarify the relief available to the Plaintiff under his claims under
Therefore, as Plaintiff does not seek injunctive relief for an ongoing constitutional or statutory violation, the Court grants the motion to dismiss the §§ 1981 and 1983 claims against SUNYA and the individual defendants in their official capacities.
3. Title IX Claim
Defendant SUNYA argues that Plaintiff‘s Title IX claim against it must be dismissed because the statute does not confer a private right of action for employees who allege gender discrimination in the course of their employment. (Dkt. No. 24-2, at 21). Plaintiff disagrees, contending that a private right of action does exist, given sеveral “Supreme Court cases broadly construing the application of Title IX.” (Dkt. No. 33, at 27). Title IX provides, with certain exceptions not relevant here: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”
4. Section 1981 Claim
Defendants move to dismiss Plaintiff‘s claim alleging that Defendants violated his rights under
5. Punitive Damages Claim
Defendants move to dismiss Plaintiff‘s fifth claim for punitive damages. (Dkt. No. 24-2, at 28-29). Plaintiff argues that the issue is irrelevant because “Defendants are on express notice that Plaintiff is seeking punitive damages in this case.” (Dkt. No. 33, at 32). Defendants are correct that a claim for punitive damages does not constitute an independent cause of action; it is instead a form of relief. Farina v. Metro. Transp. Auth., 409 F. Supp. 3d 173, 220 (S.D.N.Y. 2019); Doe v. Indyke, 457 F. Supp. 3d 278, 284 (S.D.N.Y. 2020) (noting that punitive damages “are a form of damages, not an independent cause of action“) (citation omitted). When requests for punitive damages are styled as independent causes of action, courts most often treat motions to dismiss such requests as motions to strike under
IV. MOTION TO AMEND THE COMPLAINT
A. Standard of Review
In general, leave to amend should be freely given “when justice so requires.”
B. Analysis
Plaintiff moves to amend the Complaint to add a claim for negligent infliction of emotional distress. (Dkt. No. 23, at 1).10 Defendants oppose the motion asserting that amendment
“To plead a negligent infliction of emotional distress claim under New York law, a plaintiff must allege (1) a breach of a duty owed to the plaintiff; (2) emotional harm; (3) a direct causal connection between the breach and the emotional harm; and (4) circumstances providing some guarantee of genuineness of the harm.” Francis v. Kings Park Manor, Inc., 992 F.3d 67, 81 (2d Cir. 2021).
A plaintiff may establish a claim for negligent infliction of emotional distress under “(1) the bystander theory,” which is inapplicable here as it typically involves witnessing harm to a close family member, “or (2) the direct duty theory,” which allows a plaintiff to recover for emotional injury caused by a defendant‘s breach of a duty which “unreasonably endangered” the plaintiff‘s physical safety. Baker v. Dorfman, 239 F.3d 415, 421 (2d Cir. 2000). Under both theories, the duty owed “must be specific to the plaintiff, and not some amorphous, free-floating duty to society.” Truman v. Brown, 434 F. Supp. 3d 100, 123 (S.D.N.Y. 2020) (quoting Mortise v. United States, 102 F.3d 693, 696 (2d Cir. 1996)). As stated, “[b]oth theories require ‘physical injury or the threat of danger, either to the plaintiff ... or to a close family member.‘” Green v. City of Mount Vernon, 96 F. Supp. 3d 263, 298 (S.D.N.Y. 2015) (quoting Vaughn v. Am. Multi Cinema, Inc., No. 09-cv-8911, 2010 WL 3835191, at *5, 2010 U.S. Dist. LEXIS 96609, at *16 (S.D.N.Y. Sept. 13, 2010)). Herе, there is no claim under the bystander theory; accordingly, the Court must consider whether Plaintiff sufficiently alleges a claim under the “direct duty” theory.
In any event, Plaintiff‘s claim must be dismissed because there is no allegation that Defendants’ alleged breach of this duty caused Plaintiff physical injury or threatened Plaintiff “with physical harm as a result of defendant‘s negligence.” Mortise, 102 F.3d at 696; see Green, 96 F. Supp. 3d at 299 (dismissing negligent infliction of emotional distress claim because even assuming that the defendants “had a special duty” to the plaintiffs, the claim still failed because any duty breach did not “unreasonably endanger” the plaintiff‘s safety or cause her to fear for her safety) (internal quotation marks and alterаtion omitted).
Plaintiff acknowledges that his actual physical safety was not endangered by Defendants’ conduct, but asserts he did fear for his physical safety. (Dkt. No. 33, at 18). Specifically, Plaintiff argues that:
In Iran, Dr. Alaei was alleged to have done something wrong as part of his professional endeavors and his rights were violated as a result of the allegations, as he was not given a fair trial and he feared for his physical safety when he was wrongfully imprisoned. In the instant circumstance Dr. Alaei‘s rights were violated and he again faced unfounded and arbitrary discipline from Defendants, who stirred
up his post-traumatic fears and caused him to once again fear for his physical safety, including wrongful punishment without legal process.
(Id.; see also Dkt. No. 23-4, ¶ 277 (Proposed Amended Complaint alleging that “based upon his wrongful imprisonment by the government of Iran, Dr. Alaei has suffered from pre-existing emotional distress” and that Defendants’ “extreme and outrageous conduct ... has significantly exacerbated pre-existing emotional distress suffered by Dr. Alaei“)). However, the “unreasonable endangerment” element is subject to an objective inquiry; it is not a “subjective evaluation dependent on the plaintiff‘s state of mind.” Carney v. Boston Mkt., No. 18-cv-713, 2018 WL 6698444, at *3, 2018 U.S. Dist. LEXIS 214453, at *7 (S.D.N.Y. Dec. 20, 2018) (quoting Torain v. Casey, No. 16-cv-2682, 2016 WL 6780078, at *6, 2016 U.S. Dist. LEXIS 127681, at *15 (S.D.N.Y. Sept. 16, 2016)). Therefore, even accepting Plaintiff‘s factual allegations regarding his imprisonment in Iran as true and drawing all inferences in his favor, because Plaintiff‘s subjective fears are insuffiсient as a matter of law, and because there are no allegations that would allow a plausible inference that Defendants’ conduct endangered Plaintiff‘s physical safety, Plaintiff fails to state a negligent infliction of emotional distress claim under the “direct duty” theory. See Reid v. United States, No. 19-cv-1221, 2020 WL 3256331, at *6, 2020 U.S. Dist. LEXIS 104250, at *17 (E.D.N.Y. June 15, 2020) (noting that the plaintiff had not alleged any words or physical conduct “that, viewed objectively, caused plaintiff to reasonably fear for his physical safety.“); Vaughn, 2010 WL 3835191, at *5, 2010 U.S. Dist. LEXIS 96609, at *16-17 (finding allegations that the employer failed “to adequately investigate the circumstances surrounding [the plaintiff‘s] disciplinary warning and ensuing grievance” did not support bystander or direct duty theory of liability as there was “no suggestion” that the plaintiff‘s “or anyone else‘s well-being was ever close to being compromised“).
V. CONCLUSION
For these reasons, it is hereby
ORDERED that Defendants’ cross-motion to dismiss (Dkt. No. 24) is GRANTED as to the following claims, and that the following claims are DISMISSED: Plaintiff‘s § 1981 claim against all Defendants, and Plaintiff‘s § 1983 claims against SUNYA and the individual defendants in their official capacities; and it is further
ORDERED that the Fifth Claim for Punitive Damages is STRICKEN from the Complaint; and it is further
ORDERED that Defendants’ cross-motion to dismiss (Dkt. No. 24) is otherwise DENIED; and it is further
ORDERED that Plaintiff‘s motion to amend the Complaint (Dkt. No. 23) is DENIED as futile.
IT IS SO ORDERED.
Dated: September 7, 2022
Syracuse, New York
Brenda K. Sannes
Chief U.S. District Judge