Rogers v. City of New York

SUMMARY ORDER Appellant Phyllis Rogers, pro se, appeals the district court’s grant of the Defendants’ Federal Rule of Civil Procedure 12(b)(6) motion to dismiss her appeal, alleging violations of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12112-12117, and the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-1968. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. Because Rogers does not challenge on appeal the district court’s dismissal of her racial discrimination claim, or her ADA claim concerning her memory loss, those claims are abandoned. See LoSacco v. City of Middletown, 71 F.3d 88, 92-93 *203 (2d Cir.1995) (when a litigant, even if proceeding pro se, raises an issue before the district court but does not raise it on appeal, it is abandoned). We review de novo a district court’s dismissal of a complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), construing the complaint liberally, accepting all factual allegations as true, and drawing all reasonable inferences in the plaintiffs favor. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.2002). “The Federal Rules of Civil Procedure require that a complaint contain ‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ and that each averment be ‘concise, and direct.’ ” Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir.1995) (quoting Fed.R.Civ.P. 8(a)(2), 8(d)(1)). In this regard, the complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Although all allegations contained in the complaint are assumed to be true, this tenet is “inapplicable to legal conclusions.” Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). 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.” Id. To establish a pnma facie case of discrimination by a public entity under the ADA, a plaintiff must show that: (1) she has a qualified disability within the meaning of the ADA; (3) she was excluded from participation in or denied benefits of the services, programs, or activities of a public entity, or she suffered discrimination by any such entity. See Powell v. Nat’l Bd. of Med. Exam., 364 F.3d 79, 84-85 (2d Cir.2004). An employee is not disabled under the ADA unless the impairment substantially limits one or more major life activities. 42 U.S.C. § 12102(2)(A) & (C); see Ryan v. Grae & Rybicki. P.C., 135 F.3d 867, 869 (2d Cir.1998). “Merely having an impairment does not make one disabled for purposes of the ADA. Claimants also need to demonstrate that the impairment limits a major life activity.” Toyota Motor Mfg. v. Williams, 534 U.S. 184, 195, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002). 1 Here, the district court properly determined that Rogers failed to state a claim under the ADA because she was not “disabled” within the meaning of the Act. Rogers alleged in her complaint that she suffered from a disability because she experienced shortness of breath when she climbed stairs. However, an inability to climb stairs, at least in the circumstances alleged, is not a substantial limitation of a major life activity so as to render Rogers disabled under the ADA. See Piascyk v. City of New Haven, 64 F.Supp.2d 19, 26 (D.Conn.1999). The same is true with respect to Rogers’s claim that her memory loss constituted a disability under the ADA, because the doctor’s note she included, which stated that it would “be to her benefit not to be moved from her residence” was not sufficient to establish that the memory loss was a disability. The doctor’s letter further avers he could not detect any “obvious illness” that was the cause of the memory loss. The complaint and the record do not support a claim that the memory loss suffered by Rogers constitutes a “major life activity” within the meaning of the ADA. See Reeves v. Johnson Controls World Servs., 140 F.3d 144, 153-54 (2d Cir.1998). *204 In addition, the district court correctly held that, because there is no municipal liability under RICO, Rogers’s civil RICO claim failed to state a cause of action. See Frooks v. Town of Cortlandt, 997 F.Supp. 438, 457 (S.D.N.Y.1998) (citing cases); see also Pedrina v. Chun, 97 F.3d 1296, 1300 (9th Cir.1996) (rejecting as a matter of law a RICO claim against a city defendant). We have considered all of Rogers’s remaining claims of error and determined them to be without merit. Accordingly, there is no basis on which to challenge the judgment of the district court. For the foregoing reasons, the judgment of the district court is hereby AFFIRMED. Footnotes [1] In 2008, Congress expressly superseded Toyota Motor Mfg. by statute in the ADA Amendments Act of 2008, Pub.L. No. 110— 325, 112 Stat. 3353 (2008). These revisions however, were not in effect at the time of the events that are the subject of this appeal.