10-2071-cv
Petway v. New York City Transit Authority



                        UNITED STATES COURT OF APPEALS
                           FOR THE SECOND CIRCUIT

                                       SUMMARY ORDER
        Rulings by summary order do not have precedential effect. Citation to a summary order filed
on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure
32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a document filed with this
Court, a party must cite either the Federal Appendix or an electronic database (with the notation
“summary order”). A party citing a summary order must serve a copy of it on any party not
represented by counsel.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
the 13th day of December, two thousand eleven.

PRESENT:
               JOSEPH M. McLAUGHLIN,
               JOSÉ A. CABRANES,
               RICHARD C. WESLEY,
                      Circuit Judges.
__________________________________________
Johnnie L. Petway,

                             Plaintiff-Appellant,

                   v.                                                  10-2071-cv

New York City Transit Authority, et al.,

                  Defendants.1
___________________________________________

FOR APPELLANT: Johnnie L. Petway, pro se, Brooklyn, New York.

NO APPEARANCE FOR DEFENDANTS2


         1
             The Clerk of the Court is directed to amend the caption as shown above.
         2
          Because the District Court dismissed Petway’s complaint pursuant to 28 U.S.C. § 1915(e)(2)
prior to its service on any defendant, no defendant has appeared in the case, either in the District
Court or on appeal. See Hall v. NYS Division of Parole, 225 F.3d 645, 2000 WL 1186256, at *1 n.1 (2d
Cir. Aug. 21, 2000) (unpublished summary order).
       Appeal from a judgment of the United States District Court for the Eastern District of New
York (Allyne R. Ross, Judge).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the District Court be AFFIRMED.

        Plaintiff-appellant Johnnie L. Petway (“Petway”), pro se, appeals from the District Court’s
order dismissing, sua sponte, his complaint, in which he brought claims pursuant to 42 U.S.C. § 1983
and the Americans With Disabilities Act (“ADA,” 42 U.S.C. §§ 12111–12117), as well as a state law
breach of contract claim. We assume the parties’ familiarity with the facts and proceedings below.
This Court previously limited this appeal to the issue of whether the District Court erred in
dismissing the action without first granting Petway the opportunity to replead his ADA claim.

          We review de novo a district court’s sua sponte dismissal of a complaint pursuant to 28 U.S.C. §
1915(e)(2). See Giano v. Goord, 250 F.3d 146, 149-50 (2d Cir. 2001). Under that statute, a district
court is required to dismiss a complaint brought in forma pauperis if it determines that the action fails
to state a claim on which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii). A complaint fails to
state a claim on which relief can be granted if, taking all allegations contained in the complaint to be
true, it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that
would entitle him to relief. Shakur v. Selsky, 391 F.3d 106, 112 (2d Cir. 2004). The complaint must
plead “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 will have “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, 129 S. Ct. 1937, 1949 (2009).

         A district court must liberally construe a pro se complaint, Triestman v. Fed. Bureau of Prisons,
470 F.3d 471, 474-75 (2d Cir. 2006) (per curiam), and should generally not dismiss a pro se complaint
without granting the plaintiff leave to amend, see Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
However, leave to amend is not necessary when it would be futile. See id. (finding that leave to
replead would be futile where the complaint, even when read liberally, did not “suggest[] that the
plaintiff has a claim that she has inadequately or inartfully pleaded and that she should therefore be
given a chance to reframe”).

        Although the District Court sua sponte dismissed Petway’s complaint without granting leave
to amend or explicitly finding that granting leave to replead would be futile, the complaint gives no
indication that Petway could have stated a colorable ADA claim had he been granted leave to
amend. See id. In particular, although Petway broadly alleged that certain employees of the New
York City Transit Authority made false statements in the context of certain workers’ compensation
proceedings, he did not plausibly suggest that any of the defendants in this case discriminated against

                                                    2
him on the basis of his disability for purposes of an ADA claim. See 42 U.S.C. § 12112(a).

       We have considered Petway’s other arguments on appeal and have found them to be without
merit. Accordingly, the judgment of the District Court is hereby AFFIRMED.



                                              FOR THE COURT:
                                              Catherine O’Hagan Wolfe, Clerk




                                                 3
