Roberts et al v. The State of New York et al

Filing 59

MEMORANDUM-DECISION AND ORDER granting in part and denying in part # 46 Motion for Judgment on the Pleadings; Approving in part and rejecting in part Report and Recommendations re # 54 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
____________________________________________
LILLIAN ROBERTS as Executive Director of District
Council 37, AFSCME, AFL-CIO, DISTRICT COUNCIL 37,
AFSCME, AFL-CIO, DENNIS IFILL, as President of the
Rent Regulation Services Unit Employees, Local 1359,
District Council 37, AFSCME, AFL-CIO, THE RENT
REGULATION SERVICES UNIT EMPLOYEES, LOCAL
1359, CLIFFORD KOPPELMAN, as President of the Court,
County and Department of Probation Employees Unit,
Local 1070, THE COURT, COUNTY, AND DEPARTMENT
OF PROBATION EMPLOYEES UNIT, LOCAL 1070 and
MILDRED BROWN, SHANOMAE WILTSHIRE, NORMA
GALLOWAY, CHARMAINE HARDAWAY, MAURICE
BOUYEA, STEVEN SCHWARTZ, on behalf of themselves
and all others similarly situated,
Plaintiffs,
vs.

1:12-CV-0046
(MAD/CFH)

THE STATE OF NEW YORK, ANDREW M. CUOMO,
as Governor of the State of New York, NEW YORK
STATE CIVIL SERVICE DEPARTMENT, PATRICIA A.
HITE, as Acting Commissioner, New York State Civil Service
Department, NEW YORK STATE CIVIL SERVICE
COMMISSION, CAROLINE W. AHL and J. DENNIS
HANRAHAN, as Commissioners of the New York State
Civil Service Commission, ROBERT L. MEGNA, as
Director of the New York State Division of the Budget, and
THOMAS P. DiNAPOLI, as Comptroller of the State of
New York, and NEW YORK STATE AND LOCAL
RETIREMENT SYSTEM,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

DISTRICT COUNCIL 37
125 Barclay Street
New York, New York 10007
Attorneys for Plaintiffs

ERICA C. GRAY-NELSON, ESQ.

OFFICE OF THE NEW YORK

HELENA LYNCH, AAG

STATE ATTORNEY GENERAL
The Capitol
Albany, New York 12224
Attorneys for Defendants

JUSTIN L. ENGEL, AAG
RACHEL M. KISH, AAG

Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
In a complaint dated January 10, 2012, 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 March 28, 2014, Plaintiffs filed a motion to amend the complaint and on May 28, 2014
Defendants filed a motion for judgment on the pleadings. See Dkt. Nos. 43, 46. In a July 25,
2014 Report-Recommendation and Order, Magistrate Judge Hummel recommended that the
Court deny both motions. See Dkt. No. 54.
Currently before the Court are the parties' objections to the Report-Recommendation and
Order. See Dkt. Nos. 57-58.1

II. DISCUSSION
A.

Standard of review
1. Motion to amend

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. 19.
1

2

Pursuant to Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend a pleading
shall be freely given when justice so requires. See Livingston v. Piskor, 215 F.R.D. 84, 85
(W.D.N.Y. 2003). "Absent evidence of undue delay, bad faith or dilatory motive on the part of
the movant, undue prejudice to the opposing party, or futility, Rule 15's mandate must be
obeyed." Monahan v. New York City Dep't of Corrs., 214 F.3d 275, 283 (2d Cir. 2000) (citing
Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 9 L. Ed. 2d 222 (1962)).

2. Motion for judgment on the pleadings
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)).

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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).

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B.

Plaintiffs' motion to amend
In their motion to amend the complaint, Plaintiffs assert that, "[i]n light of the Court's

ruling on defendants' motion to dismiss and motion for reconsideration, plaintiffs now seek to
amend the Complaint to name defendants Cuomo, Hite, Ahl, Hanrahan, Megna and DiNapoli in
their individual capacity, drop the State entities from the suit, and remove those allegations and/or
claims in the complaint on which defendants' motion to dismiss w[as] granted and that which
plaintiffs will not seek to appeal." Dkt. No. 43-1 at 4-5.2 Moreover, the motion indicated that the
amended complaint seeks to name the individual Defendants "in their individual capacity." Id. at
7. In opposition, Defendants argued that, except as against Defendants Hite and Megna,
amendment would be futile because they have failed to sufficiently allege the personal
involvement of the individual Defendants. See Dkt. No. 46-1 at 4. In the ReportRecommendation and Order, Magistrate Judge Hummel denied Plaintiffs' motion as futile. See
Dkt. No. 54 at 3. Magistrate Judge Hummel noted that, "[b]y plaintiffs' own admission, the
proposed amendment 'does nothing more than bring the complaint into compliance with the
court's previous ruling.'" Id. Further, the report noted that, although Plaintiffs submitted a
proposed amended complaint, they failed to comply with Local Rule 7.1(a)(4), in that they did not
specifically identify the amendments in the proposed pleading, either through the submission of a
red-lined version of the original complaint or other equivalent means. See id. at 3 n.2.3

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.
2

The Court notes that, in the section of the Report-Recommendation and Order addressing
Defendants' motion for judgment on the pleadings, Magistrate Judge Hummel treated Plaintiffs'
original complaint as alleging claims against the individual Defendants in both their official and
individual capacities. See Dkt. No. 54 at 7-8.
3

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In the present matter, the Court finds that Magistrate Judge Hummel did not err in denying
Plaintiffs' motion to amend. Although it is clearly preferable for a complaint to expressly indicate
the capacity in which a person has been sued, failure to indicate that an individual is sued in his or
her individual capacity is not always fatal to such a claim. See Yorktown Medical Lab., Inc. v.
Perales, 948 F.2d 84, 88-89 (2d Cir. 1991) (citations omitted). "In place of express pleading, we
look to the totality of the complaint as well as the course of proceedings to determine whether the
defendants were provided with sufficient notice of potential exposure to personal liability." Id.
(citations omitted); see also Moore v. City of Harriman, 272 F.3d 769, 772 (6th Cir. 2001)
(holding that a plaintiff's failure to state explicitly in his complaint that the defendant is being
sued in his individual capacity "is not fatal if the course of proceedings otherwise indicates that
the defendant received sufficient notice") (en banc).
In the present matter, the original complaint clearly indicated that Plaintiffs were seeking
compensatory damages against Defendants, which are only available against Defendants in their
individual capacities. Moreover, in their answer and in their previous motions to dismiss,
Defendants asserted the affirmative defense of legislative immunity. See Dkt. No. 10-1 at 18-20;
Dkt. No. 21 at 11. The law is clear that legislative immunity "extends to public servants only in
their individual capacities[.]" Board of County Com'rs, Wabaunsee County, Kan. v. Umbehr, 581
U.S. 668, 677 (citation omitted). In light of the allegations in the complaint, Defendants' reliance
on the doctrine of legislative immunity, and Defendants' acknowledgment in their objections that
Defendants are being sued in their individual capacities, it is clear that Defendants were
immediately on notice of potential exposure to personal liability. See Yorktown Medical Lab.,
Inc., 948 F.2d at 88-89.

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Since the Court finds that Plaintiffs' original complaint and the course of proceedings
clearly establish that Defendants have been sued in their official and individual capacities, and
because the proposed amended complaint added no new facts or allegations, the Court finds that
Magistrate Judge Hummel did not err in denying Plaintiffs' motion to amend.

C.

Defendants' motion for judgment on the pleadings
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. 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
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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
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).
4

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
5

(continued...)
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1. Defendant Cuomo
In the 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 increased rates of contribution for health insurance benefits for retired State
employees, effective October 1, 2011." Dkt. No. 1 at ¶¶ 22-23. 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 ¶¶ 30, 34.

2. Defendants Ahl and Hanrahan
The 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

5

(...continued)

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)
(citing cases).
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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
"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, and as such, he is a necessary
party because he is responsible for the administration of the New York State and Local
Retirement System, including the monthly payment of pensions to eligible State retirees in the
Employees' Retirement System, less any deductions for the payment of retiree health insurance
premium costs." Dkt. No. 1 at ¶ 35. The complaint contains no other allegations relating to
Defendant DiNapoli.

4. Application
In the present matter, the Court agrees with Defendants Cuomo, Ahl, Hanrahan and
DiNapoli that the 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. The allegations contained in the present complaint are virtually
indistinguishable to the allegations in the complaint in Brown.
As to Defendant Cuomo, at best, the 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
10

("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 involvement).
Further, although Plaintiffs assert that Defendant Cuomo somehow directed the other named
Defendants to engage in the alleged misconduct, the allegation is entirely speculative and the
complaint provides no basis for this assertion or how Defendant Cuomo allegedly engaged in this
conduct.
As to Defendants Hanrahan, Ahl and DiNapoli, as noted above, the 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. Finally, although Plaintiffs seek to enjoin Defendant DiNapoli and the
Retirement System from making further deductions from the monthly pension payments as a
result of the reduced State Contribution rates, that prospective relief would be against him in his
official capacity and, therefore, is not impacted by this Court's ruling.
Based on the foregoing, the Court grants Defendants' motion for judgment on the
pleadings on this ground.6

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
pleadings.
6

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III. CONCLUSION

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 Plaintiffs' motion to amend the complaint is DENIED; 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
ORDERS that all further non-dispositive pretrial matters are referred to Magistrate Judge
Hummel.

IT IS SO ORDERED.
Dated: March 20, 2015
Albany, New York

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