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. _____________________________________ 1 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 2 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). 3 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. 4 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 5 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 6