Yzaguirre v. Levin
CourtCourt of Appeals for the Second Circuit
Date FiledOctober 28, 2026
Docket25-931
StatusUnpublished
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Full Opinion
25-931-cv
Yzaguirre v. Levin
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 TO 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 28th day of October, two thousand twenty-six.
PRESENT:
BARRINGTON D. PARKER,
DEBRA ANN LIVINGSTON,
MYRNA PÉREZ,
Circuit Judges.
_____________________________________
JACE R. YZAGUIRRE,
Plaintiff-Appellant,
v. No. 25-931
DAVE LEVIN, BENNY VAZQUEZ, TESSA KRATZ,
CHRIS WEEKS, KIPP NYC PUBLIC CHARTER
SCHOOLS, KIPP FOUNDATION,
Defendants-Appellees.
_____________________________________
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FOR PLAINTIFF-APPELLANT: JACE R. YZAGUIRRE, pro se,
Atlanta, GA.
FOR DEFENDANTS-APPELLEES DAVE LEVIN,
BENNY VAZQUEZ, AND KIPP FOUNDATION: Hillary J. Raimondi, Traub
Lieberman Straus &
Shrewsberry LLP, White
Plains, NY.
FOR DEFENDANTS-APPELLEES TESSA KRATZ,
CHRIS WEEKS, AND KIPP NYC
PUBLIC CHARTER SCHOOLS: Celena R. Mayo, Wilson,
Elser, Moskowitz,
Edelman & Dicker LLP,
New York, NY.
Appeal from a judgment of the United States District Court for the Southern
District of New York (Oetken, J.; Stein, M.J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the District Court is AFFIRMED and the motion
to supplement the record is DENIED.
Jace R. Yzaguirre, proceeding pro se, appeals from the District Court’s judgment
dismissing his second amended complaint for failure to state a claim. He sued Dave
Levin, Benny Vazquez, Tessa Kratz, Chris Weeks, KIPP Foundation, and KIPP NYC
Public Charter Schools, asserting claims under the Americans with Disabilities Act
(“ADA”), the Individuals with Disabilities Education Act (“IDEA”), Section 504 of the
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Rehabilitation Act (“Section 504”), Title VI of the Civil Rights Act of 1964 (“Title VI”), and
the Lanham Act, as well as a claim for negligent infliction of emotional distress (“NIED”)
under New York law. A magistrate judge recommended granting Defendants’ motions
to dismiss. Yzaguirre objected. The District Court overruled Yzaguirre’s objections
and adopted the magistrate judge’s report and recommendation. We assume the
parties’ familiarity with the remaining facts, procedural history, and issues on appeal.
“We review a dismissal for failure to state a claim de novo,” accepting the alleged
facts as true and drawing all reasonable inferences in the plaintiff’s favor. Sharikov v.
Philips Med. Sys. MR, Inc., 103 F.4th 159, 166 (2d Cir. 2024). We “liberally construe
pleadings and briefs submitted by pro se litigants, reading such submissions to raise the
strongest arguments they suggest.” McLeod v. Jewish Guild for the Blind, 864 F.3d 154, 156
(2d Cir. 2017) (per curiam) (quoting Bertin v. United States, 478 F.3d 489, 491 (2d Cir. 2007)).
First, Yzaguirre failed to state a claim under Title VI. The statute provides that
“[n]o person in the United States shall, on the ground of race, color, or national origin, be
excluded from participation in, be denied the benefits of, or be subjected to discrimination
under any program or activity receiving Federal financial assistance.” 42 U.S.C. § 2000d.
To state a claim under Title VI, the plaintiff must sufficiently allege, among other things,
the defendant’s discriminatory intent. See Tolbert v. Queens Coll., 242 F.3d 58, 69 (2d Cir.
2001); see also Vengalattore v. Cornell Univ., 36 F.4th 87, 104, 109–11 (2d Cir. 2022).
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Yzaguirre alleges that Defendants failed to assist him after he reported
discrimination by ACCES-VR, a state vocational-rehabilitation program, and the New
York City Mayor’s Office for People with Disabilities (“MOPD”). But he alleges no facts
supporting a plausible inference that Defendants withheld assistance because of his race,
color, or national origin. His allegations concerning ACCES-VR and MOPD’s
discrimination do not supply that missing connection. His conclusory assertions that
Defendants themselves discriminated against him are insufficient. See Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009).
Second, Yzaguirre failed to state an NIED claim. “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).
“To establish the fourth element, the plaintiff generally must plead that the breach
endangered his physical safety or caused him to fear for his physical safety.” Id. at 81
n.57.
Yzaguirre describes serious distress arising from his difficulties obtaining
educational and vocational support. He does not, however, plausibly allege that
Defendants’ conduct endangered his physical safety or caused a reasonable fear for it.
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Nor does he allege another recognized circumstance supplying the required guarantee of
genuineness. See Taggart v. Costabile, 14 N.Y.S.3d 388, 395–96 (App. Div. 2015). To the
extent his NIED claim rests on Defendants’ failure to protect him from other
organizations, the complaint alleges no basis for imposing such a duty: Defendants are
not alleged to have authority to control those organizations. See Francis, 992 F.3d at 81.
Third, Yzaguirre waived appellate review of the dismissal of his IDEA, ADA,
Section 504, and Lanham Act claims by failing to make specific objections to those
portions of the magistrate judge’s report and recommendation, despite clear notice of the
consequences. See Mario v. P & C Food Mkts., Inc., 313 F.3d 758, 766 (2d Cir. 2002). His
objections addressed only Title VI and NIED. Although we may excuse the default in
the interests of justice, we decline to do so here. See Spence v. Superintendent, Great
Meadow Corr. Facility, 219 F.3d 162, 174 (2d Cir. 2000).
Finally, further leave to amend would have been futile. Although Yzaguirre
requested leave in his opposition to Defendants’ motions to dismiss, his additional
submissions do not identify allegations that would cure the deficiencies discussed above.
The District Court therefore did not err in denying further amendment. See Terry v. Inc.
Vill. of Patchogue, 826 F.3d 631, 633 (2d Cir. 2016).
We also deny Yzaguirre’s motion to supplement the record. The motion seeks to
introduce new evidence and obtain internal correspondence, rather than correct an
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omission or misstatement in the record. See Fed. R. App. P. 10(e)(2). Yzaguirre has not
shown extraordinary circumstances warranting consideration of extra-record evidence,
and the proposed materials would not cure the pleading defects. See Amara v. Cigna
Corp., 53 F.4th 241, 257 n.8 (2d Cir. 2022).
We have considered Yzaguirre’s remaining arguments and find them to be
without merit. Accordingly, we AFFIRM the judgment of the district court and DENY
the motion to supplement the record.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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