Arredondo v. County of Nassau et al
Filing
83
ORDER granting 28 Motion to Dismiss; denying 29 Motion to Dismiss; granting 30 Motion to Dismiss; granting 33 Motion to Dismiss; granting 36 Motion to Dismiss; granting 41 Motion to Dismiss; granting 58 Motion to Dismiss. For th e reasons set forth in the attached Memorandum and Order, IT IS HEREBY ORDERED that the defendants' motions to dismiss are granted. The Clerk of the Court shall enter judgment and close the case. SO ORDERED. Ordered by Judge Joseph F. Bianco on 3/16/2012. (O'Neil, Jacquelyn)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 11-CV-710 (JFB)(GRB)
_____________________
EDWARD ARREDONDO,
Plaintiff,
VERSUS
COUNTY OF NASSAU, ET AL.
Defendants.
___________________
MEMORANDUM AND ORDER
March 16, 2012
___________________
in her individual and official capacities as
Deputy Commissioner of the County of
Nassau;
Maureen
McLoughlin
1
(“McLoughlin”) in her individual and
official capacities as Director of Child
Protective Services of the County of Nassau;
Rigo Predonzan (“Predonzan”) in his
individual and official capacities as Labor
Relations Specialist of CSEA Local 830;
Robert Guierri (“Guierri”)2 in his individual
and official capacities as Executive Vice
President of CSEA Local 830; Nancy
Hoffman, Esq. (“Hoffman”) in her
individual and official capacities as General
Counsel of CSEA Local 1000; Tim
Connick, Esq. (“Connick”) in his individual
Joseph F. Bianco, District Judge:
Plaintiff Edward Arredondo (“plaintiff
or “Arredondo”), proceeding pro se,
brought the above-captioned action against
the defendants County of Nassau; Civil
Service Employee Association (CSEA)
Local 1000, AFSCME, AFL-CIO (“CSEA
Local 1000”); Civil Service Employee
Association (CSEA) Local 830, AFSCME,
AFL-CIO (“CSEA Local 830”); Thomas R.
Suozzi (“Suozzi”) in his individual and
official capacities as Executive of the
County of Nassau; Martin F. Scheinman
(“Scheinman”) in his individual and official
capacities under color of law as Arbitrator in
the Discipline Matter of Edward Arredondo;
Bonnie Garone (“Garone”) in her individual
and official capacities as Commissioner of
Investigations; John Imhof (“Imhof”) in his
individual and official capacities as
Commissioner; Mary Brosnan (“Brosnan”)
1
Defendants the County of Nassau, Brosnan, Garone,
Imhof, McLoughlin and Suozzi will collectively be
referred to as the “County defendants.”
2
Defendants CSEA Local 1000, CSEA Local 830,
Laricchiuta, Guierri and Predonzan will collectively
be referred to as the “CSEA defendants.”
1
and official capacities as Deputy Counsel of
CSEA Local 1000; and an unknown number
of County of Nassau and CSEA employees
(collectively the “defendants”).
Connick, Hoffman, the County defendants
and the CSEA defendants also construe
plaintiff’s complaint as one for conspiracy
under Section 1983.
Arredondo alleges that the County
defendants and the CSEA defendants
violated his Fourteenth Amendment rights to
due process and equal protection, pursuant
to 42 U.S.C. § 1983 (“Section 1983”).
Plaintiff also alleges that defendants
Hoffman, Connick and Scheinman3 violated
his due process rights pursuant to Section
1983. Arredondo also alleges that the CSEA
defendants and defendants Hoffman and
Connick breached their duty of fair
representation under New York law.
The County defendants now move to
dismiss, pursuant to Federal Rules of Civil
Procedure
12(b)(5)
and
12(b)(6).
Defendants Hoffman and Connick move to
dismiss, pursuant to Federal Rule of Civil
Procedure 12(b)(6). The CSEA defendants
also move to dismiss, pursuant to Federal
Rule of Civil Procedure 12(b)(6).
Additionally, defendant Scheinman moves
to dismiss, pursuant to Federal Rules of
Civil Procedure 12(b)(5) and 12(b)(6).4 For
the reasons set forth herein, the motions to
dismiss are granted as to all defendants
under Rule 12(b)(6).
3
“Count VI” of plaintiff’s complaint is titled
“Violation of Fourteenth Amendment Due Process
Protected Liberty and Property Rights and Plaintiff’s
Right to Equal Protection Under the Law.”
(Complaint at 46.) Although plaintiff claims that
Scheinman’s violation of his due process rights was
“[f]atally injurious to plaintiff’s right to equal
protection under the law,” (Id. ¶ 319), plaintiff’s
allegations only present a claim against Scheinman,
for violation of his due process rights. (Id. ¶¶ 286319.) This is exemplified by plaintiff’s description of
Scheinman in the “PARTIES” section of his
complaint. In this section, Arredondo summarizes
the allegations against each of the defendants. With
regard to Scheinman, plaintiff states “Arbitrator
Martin F. Scheinman. He was selected out of
rotational order at the behest of the County of
Nassau, and did not disclose to plaintiff his $10,000
donation to the re-election campaign of the very
person who caused plaintiff to be disciplined and
stigmatized on the basis of a lie --- Thomas R.
Suozzi, Executive of Nassau County; and this
maliciousness caused injury to plaintiff’s due process
protected property and liberty interests by denying
him a fair arbitration.” (Id. ¶ 48.) Accordingly,
plaintiff has only brought a claim against Scheinman
for a violation of his due process rights, which is
dismissed for the reasons set forth infra. In any
event, even assuming arguendo that Arredondo was
attempting to bring an equal protection claim against
Scheinman, such claim also fails as a matter of law
because, inter alia, Scheinman is entitled to absolute
immunity on such a claim.
I. FACTS
A. Background
The following facts are taken from the
complaint and are not findings of fact by the
Court. Instead, the Court assumes these
facts to be true for purposes of deciding the
pending motion to dismiss and will construe
them in a light most favorable to plaintiff,
the non-moving party.
In February 2008, Arredondo was a
Child
Protective
Services
(“CPS”)
Supervisor II, Step 11. (Complaint ¶¶ 7,
109.) On Friday, February 22, 2008, Nassau
County CPS received the case of Leatrice
Brewer. (Id. ¶ 2.) At that time, plaintiff was
assigned the Brewer family case and
4
After the Court indicated in an Order dated March
7, 2012 that further briefing and/or an evidentiary
hearing would be necessary to resolve the motions
under Rule 12(b)(5) for improper service, defendants
advised the Court by letter that they were waiving the
issue of personal service to allow the Court to
consider the Rule 12(b)(6) motions. Accordingly, the
Rule 12(b)(5) motions are denied as moot.
2
the union was part of the arbitration, rather
than plaintiff, the union did not have to
disclose the donation to him. (Id.)
directed a subordinate CPS case worker to
visit the Brewer family on Sunday, February
24, 2008. (Id. ¶¶ 15, 16, 18.) On Sunday,
February 24, 2008, Leatrice Brewer
murdered her three children by drowning
them in her apartment. (Id. at ¶¶ 3, 54.) On
February 25, 2008, Nassau County
suspended plaintiff without pay pending the
outcome of an investigation into whether
plaintiff violated Nassau County’s “24 hour
contact policy.” (Id. ¶¶ 63, 67.)
Plaintiff then submitted a request for a
union-funded New York Article 75
proceeding for judicial review of the
arbitrator’s award. (Id. ¶ 218.) In a letter
dated December 22, 2009, General Counsel
for CSEA, Inc., Hoffman and Connick,
denied plaintiff’s request, stating that there
was no legal basis to vacate the award. (Id.
¶ 219.)
On February 26, 2008, Suozzi held a
press conference regarding the Brewer
family and stated that plaintiff made a “‘bad
decision . . . because of the mandate to begin
a CPS investigation within 24 hours of a
complaint.’” (Id. ¶ 6.) The New York Daily
News reported plaintiff’s name based on
unnamed sources. (Id. ¶ 78.)
Plaintiff was, and still is, a member of
the bargaining unit of Nassau County
employees represented by CSEA Local 830
and CSEA Local 1000. (Id. ¶ 42.)
B.
Suozzi ordered an official investigation
by Garone, Commissioner of Investigations.
(Id. ¶ 96.) Garone filed a “Report to the
County Executive on Child Protective
Services” which was posted on the County’s
website on June 13, 2008. (Id.) Plaintiff
subsequently had a disciplinary hearing
before Arbitrator Scheinman that took place
over four individual sessions on May 16,
2008, September 4, 2008, February 20, 2009
and April 3, 2009. (Id. ¶ 29.) On October
21, 2009, Arbitrator Scheinman found
plaintiff guilty of breach of duty. (Id. ¶¶ 27,
29, 159.) Plaintiff was ultimately demoted
from Supervisor II, Step 11, to Caseworker
I, Step I. (Id. ¶¶ 7, 159.)
Procedural History
Plaintiff filed his complaint on February
14, 2011.
1. Procedural History as to Hoffman,
Connick, the County Defendants and
the CSEA Defendants
The County defendants, the CSEA
defendants and defendants Hoffman and
Connick filed separate motions to dismiss on
May 20, 2011. On June 20, 2011, plaintiff
filed opposition to the County defendants’
motion and a separate opposition to
Hoffman and Connick’s motion. Plaintiff
also filed papers in opposition to defendants
Laricchiuta, Predonzan, and Guierri’s
motion to dismiss the complaint on June 20,
2011.
In plaintiff’s opposition to
Laricchiuta, Predonzan, and Guierri’s
motion, he made a request for additional
time to submit evidence in opposition to the
CSEA defendants’ motion. By Order dated
June 29, 2011, the Court granted plaintiff’s
request and revised the briefing schedule,
allowing plaintiff until July 29, 2011 to
On October 29, 2009, plaintiff
discovered that Arbitrator Scheinman had
made a donation to Suozzi’s reelection
campaign. (Id. ¶ 204.) CSEA Labor
Relations Specialist Predonzan told plaintiff
that “we were aware about him and Suozzi
. . . he told us before the start of your
arbitration . . . he was donating to Suozzi.”
(Id.) Predonzan told plaintiff that because
3
secure additional affidavits and discovery
necessary to file his opposition to the
defendants’ motions and giving the
defendants until August 12, 2011 to file their
replies.
CSEA defendants and defendants Hoffman
and Connick submitted replies to plaintiff’s
January 13, 2012 and January 19, 2012
submissions.
2. Procedural History as to Scheinman
On July 29, 2011, plaintiff made a
second request for additional time to file
additional oppositions to the motions to
dismiss. Hoffman, Connick, the County
defendants and the CSEA defendants
opposed this request. On August 12, 2011,
defendants Hoffman and Connick filed their
reply and the Court scheduled a telephone
conference to address plaintiff’s request.
On July 1, 2011, plaintiff moved for
entry of default as to Scheinman.6
Scheinman filed his motion to dismiss on
August 17, 2011.
Plaintiff filed his
opposition to Scheinman’s motion on
September 30, 2011. Scheinman filed his
reply on October 7, 2011. On October 24,
2011, Scheinman filed a letter with
additional information indicating that the
arbitration presided over by Scheinman was
not administered by the American
Arbitration Association, but that Scheinman
was selected from a permanent panel of
arbitrators who preside over arbitrations
between the County of Nassau and the Civil
Service Employees Association.
At a telephone conference on August 29,
2011, the Court extended plaintiff’s time to
file opposition to September 30, 2011. The
Court also extended the defendants’
deadline to file their replies to October 14,
2011. Plaintiff did not file any subsequent
opposition before the September 30, 2011
date.
The Court has fully considered all of the
arguments raised by the parties.
On October 14, 2011, the CSEA
defendants and the County defendants filed
replies in support of their respective motions
to dismiss. The CSEA defendants indicated
in their reply that they were construing
plaintiff’s opposition to Laricchiuta,
Predonzan, and Guierri’s motion to dismiss
as against all of the CSEA defendants
because the individual CSEA defendants
were also sued in their official capacities.
On December 13, 2011, the Court issued an
Order allowing the plaintiff to file
opposition to CSEA Local 1000’s motion to
dismiss and permitting CSEA Local 1000 to
submit a reply by January 27, 2012.
Plaintiff filed opposition to CSEA Local
1000’s motion to dismiss on January 13,
2012, and supplemental opposition on
January 19, 2012.5 On January 27, 2012, the
II.
STANDARD OF LAW
When a Court reviews a motion to
dismiss for failure to state a claim for which
plaintiff on January 19, 2012, raised arguments
against all of the CSEA defendants and defendants
Hoffman and Connick despite the Court’s Order
permitting opposition only as against CSEA Local
1000. In any event, the Court has fully considered all
of plaintiff’s submissions, including these
submissions.
6
By Order dated March 7, 2012, the Court denied
the plaintiff’s motion for a default because, even
assuming arguendo that defendant Scheinman was
properly served (which Scheinman has decided not to
contest in order to allow a decision on his Rule
12(b)(6) motion), there is absolutely no basis for a
default judgment because there is no evidence that
any failure to answer was willful, no prejudice
resulted to plaintiff, and the claims against defendant
Scheinman are completely without merit (for the
reasons discussed infra).
5
The opposition filed by plaintiff on January 13,
2012, and the supplemental opposition filed by
4
(internal citations omitted) (quoting and
citing Twombly, 550 U.S. at 556-57).
relief can be granted, it must accept the
factual allegations set forth in the complaint
as true and draw all reasonable inferences in
favor of the plaintiff. See Cleveland v.
Caplaw Enters., 448 F.3d 518, 521 (2d Cir.
2006); Nechis v. Oxford Health Plans, Inc.,
421 F.3d 96, 100 (2d Cir. 2005). “In order
to survive a motion to dismiss under Rule
12(b)(6), a complaint must allege a plausible
set of facts sufficient ‘to raise a right to
relief above the speculative level.’”
Operating Local 649 Annuity Trust Fund v.
Smith Barney Fund Mgmt. LLC, 595 F.3d
86, 91 (2d Cir. 2010) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555
(2007)). This standard does not require
“heightened fact pleading of specifics, but
only enough facts to state a claim to relief
that is plausible on its face.” Twombly, 550
U.S. at 570.
Where, as here, the plaintiff is
proceeding pro se, “[c]ourts are obligated to
construe the [plaintiff’s] pleadings . . .
liberally.” McCluskey v. New York State
Unified Ct. Sys., No. 10-CV-2144
(JFB)(ETB), 2010 WL 2558624, at *2
(E.D.N.Y. June 17, 2010) (citing Sealed
Plaintiff v. Sealed Defendant, 537 F.3d 185,
191 (2d Cir. 2008)); McEachin v.
McGuinnis, 357 F.3d 197, 200 (2d Cir.
2004)). A pro se plaintiff’s complaint,
while liberally interpreted, still must “‘state
a claim to relief that is plausible on its
face.’” Mancuso v. Hynes, 379 F. App’x 60,
61 (2d Cir. 2010) (citing Iqbal, 129 S.Ct. at
1949); see also Harris v. Mills, 572 F.3d 66,
72 (2d Cir. 2009) (applying Twombly and
Iqbal to pro se complaint).
The Supreme Court clarified the
appropriate pleading standard in Ashcroft v.
Iqbal, setting forth a two-pronged approach
for courts deciding a motion to dismiss. 556
U.S. 662, 129 S. Ct. 1937 (2009). The
Court instructed district courts to first
“identify[ ] pleadings that, because they are
no more than conclusions, are not entitled to
the assumption of truth.” Id. at 1950.
Although “legal conclusions can provide the
framework of a complaint, they must be
supported by factual allegations.” Id.
Second, if a complaint contains “wellpleaded factual allegations, a court should
assume their veracity and then determine
whether they plausibly give rise to an
entitlement to relief.” Id. “A claim has
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. The
plausibility standard is not akin to a
‘probability requirement,’ but it asks for
more than a sheer possibility that a
defendant has acted unlawfully.” Id. at 1949
The Court notes that in adjudicating this
motion, it is entitled to consider: “(1) facts
alleged in the complaint and documents
attached to it or incorporated in it by
reference, (2) documents ‘integral’ to the
complaint and relied upon in it, even if not
attached or incorporated by reference, (3)
documents or information contained in
defendant’s motion papers if plaintiff has
knowledge or possession of the material and
relied on it in framing the complaint, (4)
public disclosure documents required by law
to be, and that have been, filed with the
Securities and Exchange Commission, and
(5) facts of which judicial notice may
properly be taken under Rule 201 of the
Federal Rules of Evidence.” In re Merrill
Lynch & Co., 273 F. Supp. 2d 351, 356-57
(S.D.N.Y. 2003) (internal citations omitted),
aff’d in part and reversed in part on other
grounds sub nom., Lentell v. Merrill Lynch
& Co., 396 F.3d 161 (2d Cir. 2005), cert.
denied, 546 U.S. 935 (2005); see also
Cortec Indus., Inc. v. Sum Holding L.P., 949
5
347 F. App’x 663, 664-65 (2d Cir. 2009)
(internal citations omitted).
F.2d 42, 48 (2d Cir. 1991)(“[T]he district
court . . . could have viewed [the
documents] on the motion to dismiss
because there was undisputed notice to
plaintiffs of their contents and they were
integral to plaintiffs’ claim.”); Brodeur v.
City of New York, No. 04 Civ. 1859 (JG),
2005 U.S. Dist. LEXIS 10865, at *9-10
(E.D.N.Y. May 13, 2005) (court could
consider documents within the public
domain on a Rule 12(b)(6) motion to
dismiss).
III.
Private Actors and Plaintiff’s Section
1983 Conspiracy Claim
1.
Applicable Law
It is axiomatic that private citizens and
entities are not generally subject to Section
1983 liability. See Ciambriello v. Cnty. of
Nassau, 292 F.3d 307, 323 (2d Cir. 2002);
Reaves v. Dep’t of Veterans Affairs, No. 08CV-1624 (RJD), 2009 WL 35074, at *3
(E.D.N.Y. Jan. 6, 2009) (“Purely private
conduct is not actionable under § 1983, ‘no
matter how discriminatory or wrongful.’”
(quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan,
526 U.S. 40, 50 (1999)). However, “the
actions of a nominally private entity are
attributable to the state when: (1) the entity
acts pursuant to the ‘coercive power’ of the
state or is ‘controlled’ by the state (‘the
compulsion test’); (2) when the state
provides ‘significant encouragement’ to the
entity, the entity is a ‘willful participant in
joint activity with the [s]tate,’ or the entity’s
functions are ‘entwined’ with state policies
(‘the joint action test’ or ‘close nexus test’);
or (3) when the entity ‘has been delegated a
public function by the [s]tate.’ (‘the public
function test’).” Sybalski v. Indep. Gr.
Home Living Program, Inc., 546 F.3d 255,
257 (2d Cir. 2008) (citing Brentwood Acad.
v. Tenn. Secondary Sch. Athletic Ass’n, 531
U.S. 288, 296 (2001)).
DISCUSSION
A.
B.
Section 1983
To prevail on a claim under Section
1983, a plaintiff must show: (1) the
deprivation of any rights, privileges, or
immunities secured by the Constitution and
its laws; (2) by a person acting under the
color of state law. 42 U.S.C. § 1983.
“Section 1983 itself creates no substantive
rights; it provides only a procedure for
redress for the deprivation of rights
established elsewhere.” Sykes v. James, 13
F.3d 515, 519 (2d Cir. 1993). An individual
acts under color of state law when he or she
exercises power “‘possessed by virtue of
state law and made possible only because
the wrongdoer is clothed with the authority
of state law.’” Polk Cnty. v. Dodson, 454
U.S. 312, 317-18 (1981) (quoting United
States v. Classic, 313 U.S. 299 (1941)).
“Private parties are generally not amenable
to suit under § 1983, because they are not
state actors, although they may be liable
where ‘there is a sufficiently close nexus
between the State and the challenged action
of the [private party] so that the action of the
latter may be fairly treated as that of the
State itself,’ . . . or where they are ‘jointly
engaged with state officials’ in a conspiracy
to deprive the plaintiff of his constitutional
rights.” Bhatia v. Yale Sch. of Medicine,
To demonstrate that a private party
defendant was a state actor engaged in a
conspiracy with other state actors under
§ 1983, a plaintiff must allege: (1) an
agreement between the private party and
state actors, (2) concerted acts to inflict an
unconstitutional injury, and (3) an overt act
in furtherance of the goal. See Carmody v.
City of New York, No. 05-CV-8084 (HB),
2006 WL 1283125, at *5 (S.D.N.Y. May 11,
6
his rights by: (1) agreeing with the County
to select Arbitrator Scheinman out of
rotational order as the arbitrator for
plaintiff’s discipline case, at the County’s
insistence (Complaint ¶¶ 10-12, 196, 27677, 280-88); (2) failing to inform plaintiff of
Scheinman’s donation to Suozzi (Id. ¶¶ 4951, 195, 204); and (3) acquiescing in the
County’s failure to timely issue disciplinary
charges prior to the arbitration (Id. ¶¶ 197,
207, 279). However, these allegations are
merely conclusory and do not allege
sufficient detail to demonstrate that the
CSEA defendants were involved in a
conspiracy with the County defendants. For
example, plaintiff states:
2006) (citing Ciambriello, 292 F.3d at 32424). Vague and conclusory allegations that
defendants have engaged in a conspiracy to
violate plaintiff’s constitutional rights must
be dismissed. See Ciambriello, 292 F.3d at
325 (dismissing conspiracy allegations
where
they
were
found
“strictly
conclusory”); see also Walker v. Jastremski,
430 F.3d 560, 564 n.5 (2d Cir. 2005)
(“[C]onclusory or general allegations are
insufficient to state a claim for conspiracy
under § 1983.” (citing Ciambriello));
Sommer v. Dixon, 709 F.2d 173, 175 (2d
Cir. 1983) (“A complaint containing only
conclusory, vague, or general allegations of
conspiracy to deprive a person of
constitutional rights cannot withstand a
motion to dismiss.”); Green v. Bartek, No.
3:05CV1851, 2007 WL 4322780, at *3 (D.
Conn. Dec. 7, 2007) (“The Second Circuit
has consistently held that a claim of
conspiracy to violate civil rights requires
more than general allegations.”).
2.
[u]pon information and belief, the
county of Nassau, and in concert
with
CSEA
president
Jerry
Laricchiuta,
reached
an
‘understanding’
concerning
the
selection of Martin F. Scheinman out
of rotational order.
Sufficient
evidence exists for a jury to ‘infer
from the circumstances (that the
alleged conspirators) had a ‘meeting
of the minds’ and thus reached an
understanding.”
Application
The CSEA defendants and defendants
Connick and Hoffman argue that they are
not state actors and that plaintiff has failed
to plead a Section 1983 conspiracy claim.
The County argues that, to the extent
plaintiff has attempted to plead a Section
1983 conspiracy claim, he has failed to
sufficiently plead that claim in order to
survive a motion to dismiss. For the reasons
set forth below, this Court agrees.
(Id. ¶ 10.) However, not only does plaintiff
fail to indicate what amounts to “sufficient
evidence,” his statements are only general
allegations. Plaintiff’s complaint alleges, in
conclusory fashion, that there was an
understanding
between
the
CSEA
defendants and the County defendants.
Thus, these allegations lack the specificity
needed to withstand a motion to dismiss.
Accordingly, plaintiff has failed to
demonstrate that the CSEA defendants are
state actors through their actions with the
County defendants, nor does plaintiff allege
sufficient facts to allege that the County was
engaged in a conspiracy pursuant to Section
1983.
First, labor unions are generally not state
actors.
Ciambriello, 292 F.3d at 324.
Moreover, a union’s representation of public
employees does not transform it into a state
actor. Id.; see also Marrero v. City of New
York, No. 02-CV-6634 (DCL), 2003 WL
1621921, at *4 (S.D.N.Y. Mar. 23, 2003).
However, with regards to the CSEA
defendants, plaintiff alleges that the union,
through Laricchuita and his agents, violated
7
defendants Hoffman and Connick and a state
actor. As discussed supra, the CSEA
defendants are not state actors. Even if
plaintiff’s allegations in the complaint were
true, plaintiff fails to allege that Hoffman
and Connick conspired with any state actor.
Thus, Hoffman and Connick cannot be
liable to plaintiff under Section 1983 and
any conspiracy claim brought by plaintiff
against Hoffman and Connick must be
dismissed.
With regards to defendants Hoffman and
Connick, attorneys are not state actors
through their use of the judicial process. See
Morpurgo, M.A. v. The Inc. Village of Sag
Harbor, 697 F. Supp. 2d 309, 338 (E.D.N.Y
2010). Moreover, plaintiff’s complaint is
completely devoid of any allegation that
defendants Connick and Hoffman conspired
with the County defendants, or any other
state actor. Construing plaintiff’s complaint
liberally, it appears as though plaintiff is
arguing that Hoffman and Connick are state
actors because they took actions to protect
union officials. (Complaint ¶¶ 226-27.) As
plaintiff states in the complaint,
Accordingly, to the extent plaintiff
attempts to assert a claim of conspiracy
pursuant to Section 1983, it must be
dismissed. Moreover, the Section 1983
claims against Hoffman, Connick and the
CSEA defendants must be dismissed
because the CSEA defendants, Hoffman and
Connick are not state actors.7
226.
Nancy Hoffman and Tim
Connick also violated their duty of
fair representation to plaintiff, and to
all members of CSEA Local 830
when they failed to take corrective
action regarding the trampling of
petitioner’s due process protected
property rights and liberty interests
by President Laricchiuta, CSEA
Local 830 Labor Relations Specialist
Rigo Predonzan, and Executive Vice
President Rob Guierri.
7
Plaintiff also presents a state law claim for breach of
the duty of fair representation against the CSEA
defendants and defendants Connick and Hoffman.
However, having determined that plaintiff’s federal
claims against the CSEA defendants and defendants
Hoffman and Connick do not survive defendants’
motions to dismiss, the Court concludes that retaining
jurisdiction over any state law claims is unwarranted.
28 U.S.C. § 1367(c)(3); United Mine Workers of Am.
v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16
L.Ed.2d 218 (1966). “In the interest of comity, the
Second Circuit instructs that ‘absent exceptional
circumstances,’ where federal claims can be disposed
of pursuant to Rule 12(b)(6) or summary judgment
grounds, courts should ‘abstain from exercising
pendent jurisdiction.’” Birch v. Pioneer Credit
Recovery, Inc., No. 06-CV-6497T, 2007 WL
1703914, at *5 (W.D.N.Y. June 8, 2007) (quoting
Walker v. Time Life Films, Inc., 784 F.2d 44, 53 (2d
Cir. 1986)). Therefore, in the instant case, the Court,
in its discretion, “‘decline[s] to exercise supplemental
jurisdiction’” over plaintiff’s state law claim because
“it ‘has dismissed all claims over which it has
original jurisdiction.’” Kolari v. N.Y.-Presbyterian
Hosp., 455 F.3d 118, 122 (2d Cir. 2006) (quoting 28
U.S.C. § 1367(c)(3)); see also Cave v. E. Meadow
Union Free Sch. Dist., 514 F.3d 240, 250 (2d Cir.
2008) (“We have already found that the district court
lacks subject matter jurisdiction over appellants’
federal claims. It would thus be clearly inappropriate
for the district court to retain jurisdiction over the
227. Hoffman and Connick’s cover
up and failure to take corrective
action only insures that these
fiduciary and statutory violations
will be repeated against plaintiff by
President
Laricchiuta,
Rigo
Predonzan, and Executive Vice
President Ron Guierri, and other
members victimized by a union
hierarchy who operate above the
rules of law and who believe that
they will never be held accountable.
(Id.) Not only are plaintiff’s statements
conclusory and therefore insufficient to
allege a conspiracy, plaintiff has failed to
allege that there was any agreement between
8
C.
Section 1983 Claims Against the
County of Nassau
Under Monell, 436 U.S. 658, a
municipal entity may be held liable under
Section 1983 where a plaintiff demonstrates
that the constitutional violation complained
of was caused by a municipal “policy or
custom.” Id. at 694; see also Patterson v.
Cnty. of Oneida, 375 F.3d 206, 226 (2d Cir.
2004) superseded in part on other grounds
by the Civil Rights Act of 1991, Pub. L. No.
102-166, 105 Stat. 1071, amending 42
U.S.C. § 1981 (citing Jett v. Dallas Indep.
Sch. Dist., 491 U.S. 701, 733-36 (1989), and
Monell, 436 U.S. at 692-94). “The policy or
custom need not be memorialized in a
specific rule or regulation.” Kern v. City of
Rochester, 93 F.3d 38, 44 (2d Cir. 1996)
(citing Sorlucco v. New York City Police
Dep’t, 971 F.2d 864, 870 (2d Cir. 1992)). A
policy, custom, or practice of the municipal
entity may be inferred where “‘the
municipality so failed to train its employees
as to display a deliberate indifference to the
constitutional rights of those within its
jurisdiction.’” Patterson, 375 F.3d at 226
(quoting Kern, 93 F.3d at 44).
The County defendants argue that the
claims against the County of Nassau should
be dismissed because the complaint fails to
demonstrate that the constitutional violations
complained of were caused by a Nassau
County policy or custom, as required by
Monell v. Department of Social Services,
436 U.S. 658, 691-95 (1978). As set forth
below, the Court agrees.8
state law claims when there is no basis for
supplemental jurisdiction.”); Karmel v. Claiborne,
Inc., No. 99 Civ. 3608 (WK), 2002 WL 1561126, at
*4 (S.D.N.Y. July 15, 2002) (“Where a court is
reluctant to exercise supplemental jurisdiction
because of one of the reasons put forth by § 1367(c),
or when the interests of judicial economy,
convenience, comity and fairness to litigants are not
violated by refusing to entertain matters of state law,
it should decline supplemental jurisdiction and allow
the plaintiff to decide whether or not to pursue the
matter in state court.”) Accordingly, pursuant to 28
U.S.C. § 1367(c)(3), the Court declines to retain
jurisdiction over plaintiff’s remaining state law claim
for breach of the duty of fair representation given the
absence of any federal claims that survive the
motions to dismiss, and dismisses any such claim
without prejudice.
However, a municipal entity may only
be held liable where the entity itself
commits a wrong; “a municipality cannot be
held liable under § 1983 on a respondeat
superior theory.” Monell, 436 U.S. at 691;
see also Segal v. City of N.Y., 459 F.3d 207,
219 (2d Cir. 2006) (“Monell does not
provide a separate cause of action for the
failure by the government to train its
employees; it extends liability to a municipal
organization where that organization’s
failure to train, or the policies or customs
that it has sanctioned, led to an independent
constitutional violation.”); Zahra v. Town of
Southold, 48 F.3d 674, 685 (2d Cir. 1995)
(“A municipality may not be held liable in
an action under 42 U.S.C. § 1983 for actions
alleged to be unconstitutional by its
employees below the policymaking level
solely on the basis of respondeat superior.”);
8
In any event, the Monell claim also cannot proceed
because, as discussed infra, there is no underlying
constitutional claim that can survive a motion to
dismiss as it relates to the individual County
defendants because plaintiff cannot plausibly allege a
deprivation of a constitutional right under the due
process or equal protection clause. Thus, where a
plaintiff “has not established any underlying
constitutional violation, [plaintiff] cannot state a
claim for § 1983 supervisory liability.” Elek v. Inc.
Vill. of Monroe, --- F. Supp. 2d ----, 2011 WL
4472027, at *5 (S.D.N.Y. Sept. 27, 2011); see also
Alston v. Bendheim, 672 F. Supp. 2d 378, 388-89
(S.D.N.Y. 2009) (“The failure to state a claim for an
underlying
violation
forecloses
supervisory
liability.”); Clark v. Sweeney, 312 F. Supp. 2d 277,
298 (D. Conn. 2004) (“As there was no underlying
deprivation of constitutional rights, accordingly, there
can be no supervisory liability. . . . ”).
9
Vippolis v. Haverstraw, 768 F.2d 40, 44 (2d
Cir. 1985) (“A plaintiff who seeks to hold a
municipality liable in damages under section
1983 must prove that the municipality was,
in the language of the statute, the ‘person
who . . . subjected, or cause[d] [him] to be
subjected,’ to the deprivation of his
constitutional rights.” (quoting 42 U.S.C.
§ 1983)).
D. Section 1983 Claims Against the
Individual County Defendants and
Defendant Scheinman
1.
Due Process Claim Against
Scheinman and the Individual County
Defendants10
The County defendants argue that
plaintiff has failed to utilize his judicial
remedies under New York Civil Practice
Laws and Rules Articles 75 and 78 and,
therefore, cannot bring a Section 1983 claim
for an alleged deprivation of property or
liberty.11 Defendant Scheinman also argues
In this case, plaintiff has failed to set
forth any allegations that there was a policy
or custom of disciplining and demoting
individuals in violation of their federal
rights. In fact, the crux of plaintiff’s
complaint is that he was selectively
disciplined and blamed for the deaths of the
Brewer children. For example, one section
of
plaintiff’s
complaint
is
titled
“PLAINTIFF
WAS
THE
ONLY
SUPERVISOR WHO PERFORMED HIS
SUPERVISORY DUTIES BUT WAS
SELECTIVELY
DISCIPLINED
BY
COMMISSIONER IMHOF AND DEPUTY
COMMISSIONER
BROSNAN.”
(Complaint at 5.) Further, plaintiff alleges
that “[t]his selective discipline administered
by Commissioner Imhof and Deputy
Commissioner Brosnan regarding plaintiff’s
alleged
violation
of
18
NYCRR
432.2(2008), is prima facie evidence that
plaintiff was scapegoated to comport with
the stigmatizing statements of their political
patron, Executive Thomas R. Suozzi.” (Id. ¶
24.) Thus, the complaint does not make a
single allegation in regards to a custom or
policy in place by Nassau County.
Accordingly, Nassau County cannot be
liable to plaintiff under Section 1983.9
Department of Social Services, 436 U.S. 658, 98
S.Ct. 2018, 56 L.Ed.2d 611 (1978); see, e.g., Tsotesi
v. Bd. of Educ., 258 F. Supp. 2d 336, 338 n.10
(S.D.N.Y.2003) (dismissing claims against officials
sued in their official capacities where plaintiff also
sued municipality (citing Kentucky v. Graham, 473
U.S. 159, 165-66, 105 S.Ct. 3099, 87 L.Ed.2d 114
(1985))). Therefore, the Court dismisses all claims
brought against defendants Brosnan, Garone, Imhof,
McLoughlin and Suozzi in their official capacities.
In any event, these claims could not survive for the
same reasons that the Monell claim cannot survive.
10
In addition to arguing that defendants Hoffman and
Connick are not state actors, defendants Hoffman and
Connick argue that plaintiff’s due process rights have
not been violated because he was provided with an
adequate post-deprivation remedy. The Court agrees.
Even if plaintiff could properly allege that non-state
actor defendants Hoffman and Connick conspired
with the individual County defendants under Section
1983 to violate plaintiff’s due process rights, the due
process claims against Hoffman and Connick would
fail as a matter of law for the same reasons that the
claims against the individual County defendants fail –
namely, plaintiff failed to utilize the post-deprivation
remedy available to him under Article 75. Thus,
plaintiff’s due process claim against defendants
Hoffman and Connick are also dismissed on this
ground. Moreover, this defect cannot be cured
because any attempt to re-plead a conspiracy claim
against the CSEA defendants and defendants
Connick and Hoffman would be futile.
9
The County defendants also argue that the claims
against the individual defendants in their official
capacity should be dismissed as duplicative of the
claims against the County of Nassau. This Court
agrees. With regard to the individual defendants sued
in their official capacities, these claims are
duplicative of the municipal liability claim lodged
against the County of Nassau under Monell v.
11
The County defendants also argue that the
plaintiff’s due process claim should be dismissed
because the complaint does not allege with any
10
that the claims against him must be
dismissed because he is entitled to absolute
immunity for acts arising out of his duties as
an arbitrator. As set forth below, the Court
agrees that no Section 1983 due process
claim can lie in this case as a matter of law
because adequate procedural remedies exist
under state law for all of the procedural
defects in the disciplinary and arbitration
process that resulted in plaintiff’s demotion.
Moreover, the claims against defendant
Scheinman – all of which relate to his
actions as the arbitrator – are barred by the
doctrine of absolute immunity.
a.
arbitrator’s award can be vacated or
modified if it was based on, inter alia,
(i)
corruption,
fraud
or
misconduct in procuring the
award; or
(ii)
partiality of an arbitrator
appointed as a neutral, except
where the award was by
confession; or . . .
N.Y.C.P.L.R. § 7511(b)(1)(i)-(ii).
An
application to vacate or modify an award
must be made within ninety days after the
award is delivered to the party.
N.Y.C.P.L.R. § 7511(a).
Applicable Law on Due Process
Claim
When a plaintiff brings a due process
claim “[b]ased on random unauthorized acts
by state employees . . . [t]he Due Process
Clause of the Fourteenth Amendment is not
violated when a state employee intentionally
deprives an individual of property or liberty
so long as the State provides a meaningful
post [-] deprivation remedy.” Hellenic Am.
Neighborhood Action Comm. v. City of New
York, 101 F.3d 877, 880 (2d Cir. 1996)
(citing Hudson v. Palmer, 468 U.S. 517,
532, 104 S.Ct. 3194, 3203, 82 L.Ed.2d 393
(1984); Parratt v. Taylor, 451 U.S. 527, 541,
101 S.Ct. 1908, 1916, 68 L.Ed.2d 420
(1981), overruled on other grounds by
Daniels v. Williams, 474 U.S. 327, 106 S.Ct.
662, 88 L.Ed.2d 662 (1986)).
In addition, Article 78 proceedings can
be utilized by a municipal employee to
challenge a demotion.
As the Second
Circuit has emphasized, “[t]his court has
held on numerous occasions that where, as
here, a party sues the state and its officials
and employees for the arbitrary and random
deprivation of a property or liberty interest,
an Article 78 proceeding is a perfectly
adequate postdeprivation remedy.” Grillo v.
New York City Transit Auth., 291 F.3d 231,
234 (2d Cir. 2002) (quotations and citations
omitted).
b.
Application
Here, plaintiff’s Section 1983 due
process claims are based upon various
alleged random and unauthorized acts in the
arbitration process for which he had an
adequate post-deprivation remedy pursuant
to Article 75 of the New York Civil Practice
Law and Rules. However, plaintiff failed to
make an application to vacate or modify
Arbitrator Scheinman’s decision. Moreover,
the time for plaintiff to bring an Article 75
proceeding has long expired. The complaint
alleges that the Arbitrator rendered his
Section 7511 of the New York Civil
Practice Law and Rules provides that an
specificity the utterance of a statement at the press
conference that was sufficiently derogatory and
because the individual defendants are entitled to
qualified immunity. However, as discussed supra,
this Court finds that an adequate post-deprivation
procedure existed under Articles 75 and 78 and, thus,
no plausible Section 1983 due process claim can be
asserted. Accordingly, this Court need not address
these other arguments.
11
decision on October 21, 2009. (Complaint
¶¶ 26, 29.) Plaintiff brought this action
February 14, 2011, more than one-year later.
Thus, the time for plaintiff to bring an
Article 75 proceeding has expired.
extent that plaintiff is attempting to assert
some type of “stigma-plus” claim or other
due process challenge to the circumstances
surrounding his demotion, Article 78 is also
available to plaintiff to pursue such claims.
See Walsh v. Suffolk Cnty. Police Dep’t, No.
06-CV-2237 (JFB)(ETB), 2008 WL
1991118, at *14 (E.D.N.Y. May 5, 2008)
(“The Second Circuit has held that in a case
involving an at-will government employee,
the availability of an adequate, reasonably
prompt, post-termination name-clearing
hearing is sufficient to defeat a stigma-plus
claim. Moreover, due process does not
require a pre-termination name-clearing
hearing with respect to at-will employees.
New York provides for such a nameclearing hearing pursuant to CPLR Article
78, which allows a dismissed municipal
employee an avenue for challenging his
termination as arbitrary and capricious and
contrary to law. It is well settled that the
availability of an Article 78 proceeding bars
a municipal employee from maintaining a
Section 1983 procedural due process claim.
The availability of an adequate postdeprivation procedure for reviewing the
propriety of the dismissal means that there
has been no constitutional violation.”)
(quotations and citations omitted), aff’d on
other grounds, 341 F. App’x 674 (2d Cir.
2009).
The fact that plaintiff requested a unionfunded Article 75 proceeding within the
applicable statutory time frame does not
alter this decision. Although plaintiff does
not indicate when he requested a unionfunded Article 75 proceeding, plaintiff
alleges that by letter dated December 22,
2009, defendants Hoffman and Connick
denied his request. (Id. ¶ 219.) At that point,
plaintiff would have had ample time to bring
an Article 75 proceeding on his own.
Therefore, this procedure was clearly
available to him.12 Moreover, the fact that
any such proceeding may now be untimely
does not alter the Court’s analysis. See
Campo v. New York City Employees’ Ret.
Sys., 843 F.2d 96, 102 n.6 (2d Cir. 1988)
(“[Plaintiff] may be barred by [the statute
of] limitations from presently proceeding
pursuant to Article 78. However, the fact
that Article 78 may not now be available to
[plaintiff] for that reason would not affect
the result herein because [plaintiff] had
available an Article 78 remedy whether she
timely utilized it or not.”) Similarly, to the
12
Although the County defendants refer to this as
“failure to exhaust” under Article 75, that
terminology is inaccurate. There is no exhaustion
requirement to bring a Section 1983 proceeding.
However, because one must show that the state
procedural remedies are inadequate in order to bring
a Section 1983 due process claim, the availability and
non-use of such procedures would bar a Section 1983
claim. Thus, the argument is better characterized as a
failure to use available, post-deprivation remedies.
See Marino v. Ameruso, 837 F.2d 45, 47 (2d Cir.
1988) (“Although one need not exhaust state
remedies before bringing a Section 1983 action
claiming a violation of procedural due process, one
must nevertheless prove as an element of that claim
that state procedural remedies are inadequate.
[Plaintiff] has made no such showing, and his failure
to do so is fatal to his action.”).
These procedures – under Article 75
and Article 78 – are more than adequate
post-deprivation remedies for purposes of
due process under the circumstances as
alleged. Thus, any due process claim by
plaintiff must fail as a matter of law. See
Grillo, 291 F.3d at 234 (dismissing Section
1983 due process claim because “[plaintiff]
has not provided an adequate explanation for
his failure to avail himself of the nameclearing hearing offered by an Article 78
hearing”);
Marino, 837 F.2d at 47
(affirming dismissal of Section 1983 claim
12
arbitration award, his exclusive remedy is to
bring a proceeding under CPLR Article 75
to vacate the award within ninety days.” Id.
at *1. With respect to the due process claim,
Judge Weinstein held “[e]ven if defendants’
conduct was actionable, plaintiff’s claim for
a deprivation of liberty interest without due
process would fail because adequate postdeprivation remedies were available through
an Article 78 proceeding under the New
York Civil Practice Law and Rules, and
plaintiff failed to take advantage of them.”
Id. at *2. Judge Weinstein further noted that
“[p]laintiff has not argued that postdeprivation remedies have not been made
available to him, and he never initiated such
proceedings.”
Id.
Thus, the Court
dismissed the due process claim given the
availability of the Article 78 proceeding as
an adequate post-deprivation remedy.13 See
also Jacobs v. Mostow, 271 F. App’x 85, 89
(2d Cir. 2008) (noting that the Court was
due process claim challenging ALJ’s
evidentiary decision because, even assuming
evidentiary error of a constitutional
magnitude, an adequate state procedure
existed to address any due process issue);
Monroe v. Schenectady Cnty., 1 F. Supp. 2d
168, 172 (N.D.N.Y. 1997) (“It is wellestablished in this Circuit that a
N.Y.C.P.L.R. Article 78 proceeding
provides an adequate post-deprivation
remedy where a plaintiff alleges he was
coerced into surrendering an employmentbased property or liberty interest. In the
present case, plaintiff’s property and liberty
deprivations are premised upon the
allegation that the Department coerced him
into foregoing the arbitration hearing and
accepting the demotion. These are precisely
the type of matters addressed in Article 78
proceedings. Thus, the post-deprivation
remedy provided by New York law is, in
this instance, all the process that plaintiff
was due.”) (citations omitted), aff’d by 152
F.3d 919 (2d Cir. 1998); see also Pabon v.
New York City Transit Auth., 703 F. Supp.
2d 188, 199 (E.D.N.Y. 2010) (“This Court is
persuaded that the constitutionally sufficient
remedies available to rectify any technical or
procedural errors in the Transit Authority’s
robust grievance process, including resort to
an Article 78 appeal proceeding, preclude a
due process claim here.”)
13
The Court is aware of Judge Dearie’s decision in
Kreigsman v. New York City Transit Auth., No. CV
88-0769, 1988 WL 138273 (E.D.N.Y. Dec. 16,
1988), and finds it distinguishable. In particular, in
that case, the Court made clear that “plaintiff’s
Complaint challenges the constitutional adequacy of
the established state procedures themselves, and does
not challenge random and unauthorized conduct in
violation of the established state procedures.” Id. at
*4. Here, plaintiff is not challenging the adequacy of
the state procedures, but rather is clearly challenging
what he perceives as random and unauthorized acts in
violation of the established state procedures. In fact,
in a later decision, Judge Dearie applied Marino and
held that the availability of an Article 78 proceeding
precluded Section 1983 due process claim by a
plaintiff challenging, inter alia, the alleged bias of
the Town Board that discharged him. See, e.g.,
Pleickhardt v. Janoski, No. CV 83-2314, 1989 WL
47705, at *5 (E.D.N.Y. 1989) (“Clearly the gravamen
of plaintiff’s Complaint is that the Town was biased
against him; although he does state, amidst his
plethora of allegations, that the mixing of functions is
unconstitutional, plaintiff notably is not seeking to
have section 75 [of the N.Y.C.S.L.] declared
unconstitional.”) Thus, Kreigsman is inapposite, and
plaintiff’s due process claims must fail as a matter of
law for the reasons set forth supra.
Other courts have reached the same
conclusion under analogous circumstances.
For example, in Farraj v. Metropolitan
Transit Authority, No. 11-CV-0574, 2011
WL 2580198 (E.D.N.Y. June 28, 2011),
plaintiff brought a Section 1983 due process
claim challenging the arbitrator’s decision
finding cause to terminate his employment
as a bus driver following his felony
conviction. In granting the defendants’
motion to dismiss, Judge Weinstein noted,
as an initial matter, that “[t]o the extent
plaintiff seeks only to challenge his
13
unable to identify any argument in the
complaint “as to why § 3020-a [of the New
York Education Law], which provides a
full-blown adversarial hearing, would in this
case be inadequate to satisfy the
requirements of due process, especially
given [plaintiff’s] failure to utilize the
process afforded him by state law to appeal
the arbitrator’s decision”) (quotations and
citations omitted).
claims for prospective injunctive relief,
such relief is not available under § 1983
absent an allegation of a violation of a prior
declaratory decree. . . .” Jacobs, 271 Fed.
App’x at 886 (citing Montero v. Travis, 171
F.3d 757, 761 (2d Cir. 1999)).
In the instant case, plaintiff makes
various allegations against defendant
Scheinman, including: (1) a conflict of
interest based upon a failure to disclose a
campaign contribution, and bias related to
same; (2) delay in scheduling the hearing
and an untimely award; (3) his decision
was irrational and based on hearsay; and
(4) intimidating behavior toward plaintiff at
the hearing. All of these alleged actions
relate to acts within the scope of the
arbitrator and, thus, are barred by the
doctrine of absolute immunity. Moreover,
with respect to any request for prospective
relief, there is no allegation of a violation
of a prior declaratory decree and, thus, no
such relief is available under Section 1983.
Accordingly, the claims against defendant
Scheinman must be dismissed as a matter
of law.
In sum, plaintiff failed to utilize these
post-deprivation procedures that were
available to him under state law. Thus, his
due process claim must be dismissed as a
matter of law as against the individual
County defendants and Scheinman.14
c. Absolute Immunity
With respect to defendant Scheinman,
the Court also concludes, in the alternative,
that he has absolute immunity for any
claims for money damages in connection
with his performance as the arbitrator.
It is well settled that “any claims for
damages against the arbitrator are barred by
that individual’s absolute immunity ‘for all
acts within the scope of the arbitral
process.’” Jacobs v. Mostow, 271 F. App’x
85, 88 (2d Cir. March 27, 2008) (summary
order) (quoting Austern v. Chicago Bd.
Options Exch., Inc., 898 F.2d 882, 886 (2d
Cir. 1990)); see also DeMarco v. City of
New York, No. 08-CV-3055 (RRM)(LB),
2011 WL 1104178 (E.D.N.Y. March 23,
2011) (“Accordingly, as the arbitrator in
Plaintiff DeMarco’s § 3020-a proceeding,
[the arbitrator] is entitled to absolute
immunity from liability for acts committed
in that capacity.”). Moreover, [w]hile
absolute judicial immunity does not bar
2.
Equal Protection Claim Against the
County Defendants15
The County defendants argue that
plaintiff’s equal protection claim must be
dismissed because the Supreme Court has
precluded a “class of one” claim by public
employees, such as plaintiff.
For the
reasons set forth below, this Court agrees
15
In addition to arguing that the CSEA defendants
are not state actors, the CSEA defendants argue that
plaintiff’s complaint fails to plead any facts alleging
a valid equal protection claim. However, because
this Court has already determined that the CSEA
defendants are not state actors and cannot be liable
under Section 1983 to plaintiff, the Court need not
address the merits of plaintiff’s equal protection
claim against the CSEA defendants.
14
As noted supra, any due process claim against the
other defendants under this theory would likewise fail
for the same reasons.
14
and finds that plaintiff’s equal protection
claim must be dismissed as a matter of law.
249 F. App’x 210, 212-13 (2d Cir. 2007);
see also King v. N.Y. State Div. of Parole,
260 Fed. App’x 375, 379 (2d Cir. 2008) (“In
[Olech], the Supreme Court recognized the
viability of an Equal Protection claim
‘where the plaintiff alleges that [he] has
been intentionally treated differently from
others similarly situated and that there is no
rational basis for the difference in
treatment.’” (quoting Olech, 528 U.S. at
564, 120 S.Ct. 1073)).
The Equal Protection Clause of the
Fourteenth Amendment requires the
government to treat all similarly situated
individuals alike. City of Cleburne v.
Cleburne Living Cent., Inc., 473 U.S. 432,
439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985).
Here, plaintiff does not allege that he is part
of a protected class and, thus, appears to be
bringing his claim pursuant to the Equal
Protection Clause under the “class of one”
theory. In Prestopnik v. Whelan, the Second
Circuit explained the difference between
“class of one” equal protection claims and
more traditional equal protection claims:
As the County defendants correctly
argue, to the extent that plaintiff is
attempting to assert a “class of one” claim
under the Equal Protection Clause, that
claim cannot survive a motion to dismiss in
the wake of Engquist v. Oregon Department
of Agriculture, 553 U.S. 591, 605-07, 128
S.Ct. 2146, 170 L.Ed.2d 975 (2008), in
which the Supreme Court held that no “class
of one” claims can be asserted in the public
employer context. See also Appel v.
Spiridon, 531 F.3d 138, 141 (2d Cir. 2008)
(“Recently, the Supreme Court held that the
Equal Protection Clause does not apply to a
public employee asserting a violation of the
Clause under a ‘class of one’ theory.”);
Stimeling v. Bd. of Educ., No. 07-CV-1330,
2008 WL 2876528, at *4 (C.D.Ill. July 24,
2008) (“In light of Engquist, the Court sees
no possibility that Plaintiff can state a classof-one retaliation claim based on the equal
protection
clause.”).
Accordingly,
plaintiff’s equal protection claim against the
individual County defendants fails.
“The Equal Protection Clause
requires that the government treat all
similarly situated people alike.”
Harlen Assocs. v. Inc. Vill. of
Mineola, 273 F.3d 494, 499 (2d Cir.
2001). While this clause “is most
commonly used to bring claims
alleging discrimination based on
membership in a protected class,” it
may also be used to bring a “class of
one” equal protection claim. Neilson
v. D’Angelis, 409 F.3d 100, 104 (2d
Cir. 2005); see also Vill. of
Willowbrook v. Olech, 528 U.S. 562,
564, 120 S.Ct. 1073, 145 L.Ed.2d
1060 (2000). In a “class of one”
case, the plaintiff uses “the existence
of persons in similar circumstances
who received more favorable
treatment than the plaintiff . . . to
provide an inference that the plaintiff
was intentionally singled out for
reasons that so lack any reasonable
nexus
with
a
legitimate
governmental
policy
that
an
improper purpose – whether personal
or otherwise – is all but certain.”
Neilson, 409 F.3d at 105.
IV. LEAVE TO RE-PLEAD
Although plaintiff has not requested
leave to amend or re-plead his complaint,
the Court has considered whether plaintiff
should be granted an opportunity to replead. The Second Circuit has emphasized
that
15
motions and explain the legal basis for his
position. However, plaintiff has still failed
to present any meaningful allegations in his
opposition that leads the Court to believe he
will be able to correct the pleading defects.
Accordingly, it is abundantly clear that no
amendments can cure the defects to the
federal claims in this case, and any attempt
to re-plead would be futile. See Cuoco, 222
F.3d at 112 (“The problem with [plaintiff’s]
cause[ ] of action is substantive; better
pleading will not cure it. Re-pleading would
thus be futile. Such a futile request should
be denied.”); see also Hayden v. Cnty.of
Nassau, 180 F.3d 42, 53 (2d Cir. 1999)
(holding that if a plaintiff cannot
demonstrate he is able to amend his
complaint “in a manner which would
survive dismissal, opportunity to replead is
rightfully denied.”). However, as stated
supra, the Court has declined to exercise
jurisdiction over plaintiff’s state law claims
against Hoffman, Connick and the CSEA
defendants for breach of the duty of fair
representation.
Accordingly, any state
claims are dismissed without prejudice.
A pro se complaint is to be read
liberally. Certainly the court should
not dismiss without granting leave to
amend at least once when a liberal
reading of the complaint gives any
indication that a valid claim might be
stated.
Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d
Cir. 2000) (quotations and citations
omitted). Under Rule 15(a) of the Federal
Rules of Civil Procedure, the “court should
freely give leave [to amend] when justice so
requires.” Fed.R. Civ. P. 15(a). However,
even under this liberal standard, the Court
finds that any attempt to amend the pleading
of plaintiff’s Section 1983 claims in this
case would be futile.
As discussed in detail supra, plaintiff
has failed to pursue the post-deprivation
Article 75 proceeding available to him, and
the time do so has long since expired. Thus,
no plausible due process claim can exist.
Moreover, plaintiff’s “class of one” equal
protection claim cannot be brought in the
public employer context. These defects
cannot be cured in an amended pleading. In
addition, Hoffman, Connick and the CSEA
defendants are not state actors, and
conclusory statements of conspiracy cannot
create a plausible Section 1983 conspiracy
claim. In any event, any attempt to re-plead
a Section 1983 conspiracy claim against the
private actors would be futile because, given
that the underlying due process claim cannot
survive as a matter of law against the state
actors, no Section 1983 conspiracy claim
can exist as to the private parties.
Finally, defendant Schienman is
entitled to absolute immunity as an
arbitrator, and additional pleadings cannot
overcome that immunity in this case.
In short, plaintiff was given multiple
extensions of time in order to oppose the
16
Defendants Nancy Hoffman, Esq., and Tim
Connick, Esq., are being represented by
Danielle M. Dandridge M. Dandrige, Esq.,
are being represented by Hoey King Toker
& Epstein, 55 Water Street, 28th Floor, New
York, NY 10041.
V. CONCLUSION
For the foregoing reasons, the
defendants’ pending motions to dismiss the
federal claims under Rule 12(b)(6) are
granted. All federal claims are dismissed
with prejudice. The Court declines to
exercise supplemental jurisdiction over any
state claims, and such claims are dismissed
without prejudice.
The complaint is
dismissed. The Clerk of the Court shall
enter judgment and close the case
accordingly.
SO ORDERED.
______________________
JOSEPH F. BIANCO
United States District Judge
Dated: March 16, 2012
Central Islip, NY
***
Plaintiff is proceeding pro se. Defendants
the County of Nassau, Thomas R. Suozzi,
Bonnie Garone, John Imhof, Mary Brosnan
and Maureen McLoughlin are being
represented by Debroh Nirmala Misir, Esq.,
Grant M. Lally, Esq., and William G,
Morris, Esq., of Lally & Misir, LLP, 220
Old Country Road, Mineola, NY 11501.
Defendants Civil Service Employee
Association (CSEA) Local 1000 AFSCME,
AFL-CIO,
Civil
Service
Employee
Association (CSEA) Local 830 AFSCME,
AFL-CIO,
Jerry
Laricchiuta,
Rigo
Predonzan and Ronald Guierri are being
represented by Amilia K. Tuminaro, Esq. of
Gladstein Reif & Meginniss, LLP, 817
Broadway, 6th Floor, New York, NY 10003.
Defendant Martin F. Scheinman is being
represented by William Goldman Scher,
Esq., of Garbarini and Scher, P.C., 432 Park
Avenue South, New York, NY 10016.
17
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