Lopez v. City of Albany et al, No. 1:2019cv01072 - Document 6 (N.D.N.Y 2020)

Court Description: DECISION & ORDER: that the Court Accepts and Adopts the recommendations in the Report-Recommendation and Order [Dkt. No. 5 ] for the reasons stated therein. Ordered that to the extent that plaintiff sets forth ADA/Section 504 reasonable accommodati on claims against defendants City of Albany, Capital Region Transportation Authority, and CDTA, such claims are allowed to proceed; that to the extent that plaintiff sets forth ADA/Section 504 retaliation claims based on her disability against defend ants City of Albany, Capital Region Transportation Authority, CDTA, and the City of Watervliet, such claims are allowed to proceed; that to the extent that plaintiff attempts to set forth ADA retaliation claims based on her status as a transgender pe rson or diagnosis of gender dysphoria against the defendants, such claims are dismissed with prejudice; that to the extent that plaintiff attempts to allege that defendants intentionally discriminated against her due to her gender identity in violati on of Section 296 of the New York State Human Rights Law, these claims are dismissed without prejudice and with an opportunity to amend to demonstrate how the defendants prevented her from entering the bus due to her gender identity; that plaintiff&# 039;s ADA claims against the individual defendants are dismissed without prejudice and with an opportunity to amend to demonstrate how the individual defendants discriminated against plaintiff under the ADA; that to the extent that plaintiff seeks mo ney damages against Jeremy Smith and Daniel P. McCoy under the ADA, these claims are dismissed with prejudice; that plaintiff is provided thirty (30) days from the date of this Decision and Order to file an amended complaint limited to claims not oth erwise dismissed with prejudice by the Court. Plaintiff is advised that an amended complaint supersedes in all respects the prior pleading. Any amended complaint must be a complete pleading and include all facts and claims not otherwise dismissed b y the Court with prejudice. Therefore, if plaintiff files an amended complaint, she must properly allege in the amended complaint all factual bases for all claims asserted therein, and the amended complaint must be in compliance with Rules 8 and 10 of the Federal Rules of Civil Procedure. If plaintiff files an amended complaint within the time frame set forth herein, the Clerk of the Court is to return the case to Magistrate Judge Hummel for review of the amended complaint; that should plainti ff decline to file an amended complaint within the time frame set forth herein, the Clerk of the Court is to return the case to Magistrate Judge Hummel for service of the complaint with the unamended claims deemed stricken. The Clerk of the Court ma y terminate Jeremy Smith and Daniel P. McCoy as defendants with the understanding that they may be added as defendants if plaintiff files an amended complaint naming them in any claim. Signed by Senior Judge Thomas J. McAvoy on 1/23/2020. (Copy served upon pro se plaintiff at c/o Ryan Ramdass, 42 Elder Street, Schenectady, NY 12304 via regular mail on 1/24/2020.)(hmr)