The New York State Police Investigators Association, Local 4 IUPA, AFL-CIO et al v. The State of New York et al
MEMORANDUM-DECISION AND ORDER granting in part and denying in part # 41 Motion for Judgment on the Pleadings; adopting in part and rejecting in part Report and Recommendations re # 50 Report and Recommendations. Signed by U.S. District Judge Mae A. D'Agostino on 3/20/15. (ban)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
THE NEW YORK STATE POLICE INVESTIGATORS
ASSOCIATION, LOCAL 4 IUPA, AFL-CIO, by its President
JOSEPH BARRETT; JOSEPH BARRETT, individually;
TIMOTHY MULVEY, JAMES O’CONNOR, LAWRENCE
SHEWARK, PATRICIA HYNES, and PAULA OLSEN,
on Behalf of Themselves and All Others Similarly Situated,
THE STATE OF NEW YORK, ANDREW M. CUOMO,
individually, and in his official capacity as Governor of the State
of New York; NEW YORK STATE DEPARTMENT OF CIVIL
SERVICE; PATRICIA A. HITE, individually, and in her official
capacity as Acting Commissioner of the New York State
Department of Civil Service; NEW YORK STATE CIVIL
SERVICE COMMISSION; CAROLINE W. AHL and
J. DENNIS HANRAHAN, individually, and in their official
capacities as Commissioners of the New York State Civil Service
Commission; ROBERT L. MEGNA, individually and in his official
capacity as Director of the New York State Division of the Budget;
THOMAS P. DiNAPOLI, individually and in his official
capacity as Comptroller of the State of New York; NEW YORK
STATE AND LOCAL RETIREMENT SYSTEM; and NEW
YORK STATE POLICE AND FIRE RETIREMENT SYSTEM,
GLEASON, DUNN LAW FIRM
40 Beaver Street
Albany, New York 12207
Attorneys for Plaintiffs
MARK T. WALSH, ESQ.
OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
Albany, New York 12224
Attorneys for Defendants
HELENA LYNCH, AAG
JUSTIN L. ENGEL, AAG
RACHEL M. KISH, AAG
Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
In a complaint dated December 21, 2011, Plaintiffs allege that Defendants unilaterally
increased the percentage of contributions that Plaintiffs, active and retired employees, are
required to pay for health insurance benefits in retirement and, thereby, violated the Contracts and
Due Process Clauses of the United States Constitution, impaired Plaintiffs' contractual rights
under the terms of their Collective Bargaining Agreement, and violated state law. See Dkt. No. 1.
On May 28, 2014, Defendants filed a motion for judgment on the pleadings, seeking the dismissal
of all individual and official capacity claims against all Defendants except Defendants Hite and
Megna. See Dkt. No. 41. In a July 25, 2014 Report-Recommendation and Order, Magistrate
Judge Hummel recommended that the Court deny Defendants' motion in its entirety. See Dkt.
Currently before the Court are Defendants' objections to Magistrate Judge Hummel's
Report-Recommendation and Order.2
On March 28, 2014, Plaintiffs filed a motion to amend their complaint. See Dkt. No. 38.
The proposed amended complaint removed all references to any Defendants and claims
previously dismissed by the Court, sought to add Jeffrey Kayser as a Plaintiff, and to amend the
status of Plaintiff Joseph Barrett. See id. In the July 25, 2014 Report-Recommendation and
Order, Magistrate Judge Hummel granted Plaintiffs' motion to amend and accepted the amended
complaint for filing, thereby making it the operative pleading in this matter. See Dkt. No. 51.
The Court directs the parties to its December 3, 2012 Memorandum-Decision and Order,
in which the Court discussed in detail the relevant factual background. See Dkt. No. 25.
Standard of review
In deciding a Rule 12(c) motion, the court "'employ[s] the same standard applicable to
dismissals pursuant to Fed. R. Civ. P. 12(b)(6).'" Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir.
2010) (quoting Johnson v. Rowley, 569 F.3d 40, 43 (2d Cir. 2009)). A motion to dismiss for
failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the
legal sufficiency of the party's claim for relief. See Patane v. Clark, 508 F.3d 106, 111-12 (2d
Cir. 2007). In considering the legal sufficiency, a court must accept as true all well-pleaded facts
in the pleading and draw all reasonable inferences in the pleader's favor. See ATSI Commc'ns,
Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (citation omitted). This presumption of
truth, however, does not extend to legal conclusions. See Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citation omitted). Although a court's review of a motion to dismiss is generally limited to
the facts presented in the pleading, the court may consider documents that are "integral" to that
pleading, even if they are neither physically attached to, nor incorporated by reference into, the
pleading. See Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006) (quoting Chambers v.
Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002)).
To survive a motion to dismiss, a party need only plead "a short and plain statement of the
claim," see Fed. R. Civ. P. 8(a)(2), with sufficient factual "heft to 'sho[w] that the pleader is
entitled to relief.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007) (quotation omitted).
Under this standard, the pleading's "[f]actual allegations must be enough to raise a right of relief
above the speculative level," see id. at 555 (citation omitted), and present claims that are
"plausible on [their] face," id. at 570. "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."
Iqbal, 556 U.S. at 678 (citation omitted). "Where a complaint pleads facts that are 'merely
consistent with' a defendant's liability, it 'stops short of the line between possibility and
plausibility of "entitlement to relief."'" Id. (quoting [Twombly, 550 U.S.] at 557, 127 S. Ct. 1955).
Ultimately, "when the allegations in a complaint, however true, could not raise a claim of
entitlement to relief," Twombly, 550 U.S. at 558, or where a plaintiff has "not nudged [its] claims
across the line from conceivable to plausible, the complaint must be dismissed[,]" id. at 570.
When a party files specific objections to a magistrate judge's report-recommendation, the
district court makes a "de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). However,
when a party files "[g]eneral or conclusory objections or objections which merely recite the same
arguments [that he presented] to the magistrate judge," the court reviews those recommendations
for clear error. O'Diah v. Mawhir, No. 9:08-CV-322, 2011 WL 933846, *1 (N.D.N.Y. Mar. 16,
2011) (citations and footnote omitted). After the appropriate review, "the court may accept,
reject, or modify, in whole or in part, the findings or recommendations made by the magistrate
judge." 28 U.S.C. § 636(b)(1).
In their objections, Defendants state that they object "to that portion of Magistrate Judge
Hummel's July 25, 2014 Report and Recommendation . . . on Defendants' Motion for Judgment
on the Pleadings . . . finding that Plaintiffs adequately alleged that Defendants Cuomo, Ahl,
Hanrahan and DiNapoli were personally involved in alleged constitutional violations and
therefore may be liable for monetary damages in their individual capacities pursuant to 42 U.S.C.
§ 1983." Dkt. No. 57-1 at 4.3 Defendants rely on this Court's decision in Brown v. New York, 975
F. Supp. 2d 209, 229-31 (N.D.N.Y. 2013), a companion case, in which the Court dismissed
claims against these Defendants in their individual capacities based on the plaintiffs' failure to
plausibly allege their personal involvement. See Dkt. No. 57-1 at 5-8. Defendants contend that
the allegations in the present matter are indistinguishable from the allegations in Brown. See id.
Finally, Defendants contend that the personal involvement of Defendants Cuomo, Ahl, Hanrahan
and DiNapoli was not previous addressed by the Court, contrary to the findings in the ReportRecommendation and Order. See id. at 8-9.
"It is well settled that, in order to establish a defendant's individual liability in a suit
brought under § 1983, a plaintiff must show, inter alia, the defendant's personal involvement in
the alleged constitutional deprivation." Grullon v. City of New Haven, 720 F.3d 133, 138 (2d Cir.
2013) (citations omitted). "[W]hen monetary damages are sought under § 1983, the general
doctrine of respondeat superior does not suffice and a showing of some personal responsibility of
the defendant is required." Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (quotation and other
citations omitted). Nevertheless,
[t]he personal involvement of a supervisory defendant may be
shown by evidence that: (1) the defendant participated directly in
the alleged constitutional violation, (2) the defendant, after being
informed of the violation through a report or appeal, failed to
remedy the wrong, (3) the defendant created a policy or custom
under which unconstitutional practices occurred, or allowed the
continuance of such a policy or custom, (4) the defendant was
grossly negligent in supervising subordinates who committed the
To avoid confusion, anytime the Court references a specific page number for an entry on
the docket, it will cite to the page number assigned by the Court's electronic filing system.
wrongful acts, or (5) the defendant exhibited deliberate indifference
to the rights of [plaintiffs] by failing to act on information
indicating that unconstitutional acts were occurring.
Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).4 "[W]hile facts and evidence solely within a
defendant's possession and knowledge may be pled 'on information and belief,' this does not mean
that those matters may be pled lacking any detail at all." Miller v. City of New York, No. 05-6024,
2007 WL 1062505, *4 (E.D.N.Y. Mar. 30, 2007) (citing, inter alia, First Capital Asset Mgmt.,
Inc. v. Satinwood, Inc., 385 F.3d 159, 180 (2d Cir. 2004)); see DiVittorio v. Equidyne Extractive
Indus., Inc., 822 F.2d 1242, 1247 (2d Cir. 1987) ("[T]he allegations must be accompanied by a
statement of the facts upon which the belief is based").
The Court will review Plaintiffs' allegations with respect to each of the individual
Defendants in turn.5
Although the Supreme Court's decision in Ashcroft v. Iqbal, 556 U.S. 662 (2009), may
have heightened the requirements for showing a supervisor's personal involvement with respect to
certain constitutional violations, the Court will assume for purposes of this motion that Colon is
still good law. See Grullon v. City of New Haven, 720 F.3d 133, 139 (2d Cir. 2013).
Defendants are correct that the Court did not previously address the moving Defendants'
personal involvement. Although confusion often arises when the basis for subject matter
jurisdiction is also an element of the plaintiff's asserted federal cause of action, the courts agree
that the claimed lack of personal involvement should be evaluated as going to the merits of the
claim under Rule 12(b)(6), not to the Court's subject matter jurisdiction. See Jones v. Nassau
County Sheriffs Dept., 285 F. Supp. 2d 322, 324 (E. D.N.Y. 2003) (treating the defendants'
argument that the plaintiff failed to allege their personal involvement as going to the merits of his
federal claim, not to the court's subject matter jurisdiction); see also Nowak v. Ironworkers Local
6 Pension Fund, 81 F.3d 1182, 1187-89 (2d Cir. 1996) ("Because of the more-than-occasional
difficulties involved in parsing a claim alleging federal question jurisdiction to determine whether
it fails to state a claim or fails to meet jurisdictional requirements, the federal courts have
followed a general practice of granting jurisdiction in most cases and dismissing for lack of
subject matter jurisdiction only under narrow circumstances"). Since personal involvement does
not go to the Court's subject matter jurisdiction, the Court did not address this issue in its previous
decision sua sponte. Additionally, even if the Court had previously decided this issue, the law of
the case doctrine is discretionary when a court, as here, is considering whether to revisit its own
decisions or the decisions of a sister court, as opposed to a matter ruled upon by an appellate
court. See In re Northern Telecom Ltd. Securities Litig., 42 F. Supp. 2d 234, 239 (S.D.N.Y. 1998)
1. Defendant Cuomo
In the amended complaint, Plaintiffs have alleged that Defendant Cuomo is the Governor
of New York and that,"[u]pon information and belief, defendant Cuomo approved and directed
the implementation of reduced health insurance benefits for retired State employees, effective
October 1, 2011." Dkt. No. 51 at ¶¶ 19-20. Further, Plaintiffs contend that, upon information and
belief, Defendants Hite and Megna approved the administrative extension and implementation of
reduced health insurance benefits and corresponding increased rates of contribution for retired
state employees, "effective October 1, 2011, at the direction of defendant Governor or his staff."
Id. at ¶¶ 23, 30. The amended complaint also asserts that Defendant Cuomo has failed to
nominate anyone to fill the office of President of the Civil Service Commission and
Commissioner of the Civil Service Department. See id. at ¶ 139. Finally, the amended complaint
alleges that Defendant Cuomo signed Chapter 491 of the Laws of 2011 on August 17, 2011. See
id. at ¶ 91.
2. Defendants Ahl and Hanrahan
The amended complaint provides that "Defendants Caroline W. Ahl . . . and J. Dennis
Hanrahan . . . , together constitute the Civil Service Commission, with all the powers and duties
set forth in the Civil Service Law and as otherwise prescribed by law, statutes, rules and
regulations." Dkt. No. 51 at ¶ 28. No other allegations in the amended complaint mention these
Defendants by name.
3. Defendant DiNapoli
According to the amended complaint, "Defendant Thomas P. DiNapoli . . . , as
Comptroller of the State of New York, is the head of the Office of State Comptroller and the
Department of Audit and Control, which is a department within the Executive Branch of the New
York State Government." Dkt. No. 51 at ¶ 31. Further, the amended complaint contends that
"Defendant DiNapoli, as State Comptroller, is responsible for the administration of the New York
State and Local Retirement System and the New York State Police and Fire Retirement System,
including the monthly payment of pensions to eligible retired State employee pensioners, less any
deductions for the payment of retiree health insurance premium costs." Id. at ¶ 32. The amended
complaint contains no other allegations relating to Defendant DiNapoli.
In the present matter, the Court agrees with Defendants Cuomo, Ahl, Hanrahan and
DiNapoli that the amended complaint fails to plausibly allege their personal involvement in the
alleged constitutional violations and, therefore, the claims brought against them in their individual
capacities must be dismissed. Contrary to Plaintiffs' assertions in their opposition to Defendants'
motion, the allegations contained in the present amended complaint are virtually indistinguishable
to the allegations in the complaint in Brown.
Although Plaintiffs correctly assert that their amended complaint contains more
information concerning Defendant Cuomo than the complaint in Brown, it is still insufficient to
plausibly allege his personal involvement. At best, the amended complaint alleges that, because
Defendant Cuomo appointed those responsible for overseeing these changes in the law, he was
responsible for the actions of these subordinates. The law is clear that vicarious liability and
respondeat superior are inapplicable in actions brought pursuant to 42 U.S.C. § 1983. See Iqbal,
556 U.S. at 676 ("Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff
must plead that each Government-official defendant, through the official's own individual actions,
has violated the Constitution"); Madsen v. Washington, No. C12-5928, 2013 WL 1499145, *4
(W.D. Wash. Mar. 13, 2013) (holding that simply because the governor appointed the individual
alleged to have violated the plaintiff's rights is insufficient to allege the governor's personal
The amended complaint in the present matter and the complaint in Brown both allege that
Defendants' implementation of the reduced contribution rates was ultra vires and in violation of
state law. In Brown the Court discussed this claim at length and the applicability of the exception
to Eleventh Amendment immunity discussed by the Supreme Court in Florida Dep't of State v.
Treasure Salvors, Inc., 458 U.S. 670, 696–697, 102 S. Ct. 3304, 73 L. Ed. 2d 1057 (1982). See
Brown, 975 F. Supp. 2d at 226-28. In the present matter, Plaintiffs' fifth cause of action, which is
entitled "Violation of State Law Ultra Vires Act in Excess of Power, Jurisdiction and Authority,"
only names Defendants Hite and Megna, and clearly discusses only their implementation of the
reduced contributions at issue. See Dkt. No. 51 at ¶¶ 135-147. Defendant Cuomo is not once
named in this cause of action and the only fact relevant to him is the reference to the vacancy in
the office of President of Civil Service Commission and Commissioner of the Civil Service
Department, which are positions appointed by the Governor. Id. at ¶ 138. In fact, the cause of
action specifically alleges that "Defendants Hite and Megna lacked authority under the provisions
of Civil Service Law § 167(8) to approve and implement the aforesaid reduction in State
contribution rates for retired State employees." Id. at ¶ 136.
As to Defendants Hanrahan, Ahl and DiNapoli, as noted above, the amended complaint
does nothing more than identify who they are and their positions within the state government.
Such allegations are clearly insufficient to plausibly allege their personal involvement in the
alleged unconstitutional conduct.
Based on the foregoing, the Court grants Defendants' motion for judgment on the
pleadings on this ground.6
After carefully reviewing the entire record in this matter, the parties' submissions and the
applicable law, and for the above-stated reasons, the Court hereby
ORDERS that the July 25, 2014 Report-Recommendation and Order is REJECTED in
part and ACCEPTED in part; and the Court further
ORDERS that Defendants' motion for judgment on the pleadings is GRANTED in part
and DENIED in part; and the Court further
ORDERS that the claims brought against Defendants Cuomo, Hanrahan, Ahl, and
DiNapoli in their individual capacities are DISMISSED; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on the parties in accordance in the Local Rules; and the Court further
In their objections to the Report-Recommendation and Order, Defendants do not
challenge Magistrate Judge Hummel's recommendation that the Court deny the motion as to the
official capacity claims brought against Defendant Cuomo, Ahl, Hanrahan and DiNapoli. Having
reviewed the parties' submissions and the applicable law, the Court finds that Magistrate Judge
Hummel did not clearly err in denying that portion of Defendants' motion for judgment on the
ORDERS that all further non-dispositive pretrial matters are referred to Magistrate Judge
IT IS SO ORDERED.
Dated: March 20, 2015
Albany, New York
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