Momot v. Dziarcak et al
Filing
24
DECISION AND ORDER granting Defts' 6 Motion to Dismiss for Failure to State a Claim; denying Pltf's 22 Motion for restated relief. Pltf may file an amended complaint by 9/3/15. If Pltf fails to file an amended complaint by 9/3/15, this action will result in judgment being entered. Signed by Senior Judge Thomas J. McAvoy on 8/4/15. [Served by mail.] (sfp, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
JOHN MOMOT,
Plaintiff,
vs.
1:14-CV-01527
(TJM/TWD)
MARY ELLEN DZIARCAK, and
CYNTHIA WAGNER,
Defendants.
Thomas J. McAvoy,
Sr. U.S. District Judge
DECISION and ORDER
I. INTRODUCTION
Plaintiff JOHN MOMOT commenced this action pro se asserting
claims pursuant to 42 U.S.C. § 1983. Presently before the Court
are motions to dismiss brought by Defendants MARY ELLEN DZIARCAK
(“Dziarcak”) and CYNTHIA WAGNER (“Wagner”) pursuant to Federal
Rule of Civil Procedure 12(b)(6). Dkt. #6.
II. BACKGROUND
Plaintiff submits a complaint pursuant to 42 U.S.C. § 1983
for alleged violations of his constitutional rights. His claims
stem from his former employment with the Daughters of Sarah
Nursing Center (“DSNC”) beginning on March 8, 2011 and ending on
March 30, 2012. Specifically, Plaintiff alleges that Defendant
Dziarcak, Assistant Nursing Director at DSNC, unlawfully
terminated him; denied him his right to disability accommodation;
and retaliated against him by “fabricat[ing] disciplinary
notices” which allegedly damaged his reputation. Dkt. #1 at 6.
Plaintiff alleges that Defendant Wagner, Payroll Benefits Manager
at DSNC, participated in his unlawful termination and denied him
his right to a disability accommodation. Id. Although not
referencing any statute, Plaintiff also claims DSNC maintained a
hostile work environment and unsafe work conditions. Dkt. #1.
Additionally, Plaintiff purports several claims for the
first time in his reply affidavit, including: extortion, perjury,
intentional infliction of emotional distress, negligence,
discrimination on the basis of disability, violation of his First
Amendment rights, and violation of his rights under the Equal
Protection Clause. Dkt. #15. The Defendants move for dismissal as
to all claims on the basis that they are not state actors for
purposes of § 1983. Dkt. #6-2. Defendants argue in the
alternative that Plaintiff’s Complaint is void of any allegation
of a violation of a constitutional right as required by the law.
Id.
III. FACTS1
Plaintiff, a 57 year old Caucasian male, began working part-
1
The facts are taken from the complaint. Because of the
Court’s ruling on this matter, the Court also cites to facts
alleged by the parties in other filings as a means of
demonstrating that Plaintiff may be able to plead a cognizable
claim in an amended complaint.
2
time for DSNC in Albany, New York on March 8, 2011 as a Certified
Nursing Assistant (“CNA”). Dkt. #1 at 3. Plaintiff began work in
DSNC’s Gold Unit. Dkt. #1 at 3. Plaintiff alleges in his
complaint that, “from [the] beginning,” he had problems getting
assistance from his coworkers when he found it necessary to
comply with safety rules. Id. Plaintiff complains that the
management of DSNC instructed him to take care of patients
“despite [the fact that] they were eas[ily] agitated or extremely
heavy.” Id. Plaintiff cites these instructions and incorrect
patient care plans as the cause of two alleged “accidents” he had
at work. Id.
After allegedly complaining to the DSNC management twice,
Plaintiff contends that management “started hating [him] for
[that] reason and [for not] having...full control over the CNA
team from Gold Unit.” Dkt. #1 at 3. The Defendants argue that
Plaintiff made one complaint while employed at DSNC. Dkt. #6-2 at
6. Defendants allege that on September 30, 2011, Plaintiff told a
Nurse Manager that he was not receiving help from staff when
needed. Id. According to Defendants, the Nurse Manager and
Plaintiff “decided that going forward, Plaintiff’s assignment
sheets would indicate which staff members would be available to
assist Plaintiff when he needed help. It was also agreed that
they would meet again the following week to review how Plaintiff
was doing with the changes.” Dkt. #6-2 at 7. Plaintiff and
3
Defendants agree that on October 7, 2011, “[Nurse Manager] and
Plaintiff met again and Plaintiff reported that things were
better and that staff was helping him when needed.” Dkt. #6-2 at
7. The Defendants note, however, that the nurses who worked with
Plaintiff reported that, although things did seem better with
Plaintiff, he only asked certain individuals for help and would
ignore other available staff. Id. Plaintiff contends that his
female “black and Spanish [coworkers] avoided to help [him]
because of [his] sex, age,...nationality, racial and cultural
differences.” Dkt. #1 at 3.
Plaintiff’s first accident
Defendants allege that on October 22, 2011, Plaintiff
refused to take an assignment from a nurse and “began to argue
loudly with the nurse...caus[ing] a scene in front of the
residents and other staff members.” Dkt. #6-2 at 6. Defendants
contend that,
despite the staff’s efforts to reason with him,
Plaintiff would not compose himself and continued to
refuse the assignment. Due to Plaintiff’s inability to
control himself, [the] Nursing Supervisor...was asked
to speak to Plaintiff. Plaintiff stated to [the Nursing
Supervisor] that his arm hurt because of an assignment
he had done the previous Friday.
Id. Defendants claim that since Plaintiff did not have medical
documentation stating that he was unable to perform his job
functions as expected by DSNC, the Nursing Supervisor instructed
Plaintiff to see a doctor before he could return to work. Dkt.
4
#6-2 at 6.
In response to Defendants’ contentions, Plaintiff claims
that he was only given the particular assignment because it was
too difficult for another CNA to complete; completing the
assignment, according to Plaintiff, would have meant acting
“against written safety rules.” Dkt. #15 at 5. From Plaintiff’s
perspective,
the nurses in charge provoked the scene saying that I
must accomplish the assignment without extra help...
they involved me in unpleasant conversation at [the]
nursing station to get [an] argument against me. They
were better oriented than I was about the rules in the
facility because they worked [t]here many years but
they worsen[ed] the situation to get expected effect.
Id.
Defendants argue that, following the incident that had just
occurred, Plaintiff refused a second assignment and was thus
written up on October 25, 2011, “for both the inappropriate
conduct when he argued loudly with his supervisor and for his
insubordination by refusing to complete two assignments.”2 Dkt.
#6-2 at 6. According to Defendants, “the warning clearly advised
Plaintiff that further incidents such as what occurred on October
22, 2011 could lead to termination.” Id.
2
Defendants also note in their motion that Plaintiff
received two additional written counselings on July 11, 2011 and
September 17, 2011, respectively, because he: (1) failed to
respond to a call bell in a timely manner (56 minutes); and (2)
responded to a resident’s call bell but did not provide the
resident with the necessary care.
5
Defendants claim that Plaintiff met with Defendant Wagner on
March 23, 2012 and informed her that he could not work because
his arm hurt. Dkt. #6-2 at 6. Wagner informed Plaintiff that he
needed to provide DSNC with a medical note that listed his work
restrictions, if any. Dkt. #6-2 at 7. Plaintiff returned with a
medical note that stated that Plaintiff could not lift more than
twenty-five pounds and would need assistance to lift or “tackle”
a resident that weighed 150 pounds or more. Id. Plaintiff was
told he could not return to work until he was released to full
duty “given the nature of the job duties of a CNA.” Id.
Plaintiff’s second accident
On March 30, 2012, Plaintiff returned to DSNC and met with
Defendant Wagner, Defendant Dziarcak, and the former Director of
Human Resources. Dkt. #6-2 at 7. During the meeting, Plaintiff
requested that he be provided with an accident report form for an
inguinal hernia injury that occurred “possibly on March 16, 2012
or earlier.” Dkt. #15 at 24. Defendants claim that Plaintiff
provided them vague responses when they asked Plaintiff about the
incident. Dkt. #6-2 at 8. Defendants claim they then explained
the reporting policy to Plaintiff and asked Plaintiff why he had
not reported the incident when it occurred. Dkt. #6-2 at 8.
Defendants argue that Plaintiff stated that he did not report the
incident because he was not in pain at that time. Id. However,
Plaintiff argues:
6
I could not answer them. I was unconscious when [the
injury] happened but it happened in [an] unsafe work
environment in the [Defendants’] facility, I knew. I
was pressed by them to work with heavy and agitated
patients in spite of the safety nursing rules[.] When I
exercised my rights [Defendants] turned it [so] that I
was argumentative and belligerent. Dziarcak terminated
my employment...to avoid any accommodation for [my]
disability.
Dkt. #15 at 9.
Plaintiff also refers the Court to his “Unemployment
Insurance Appeal,” Dkt. # 15 at 24, where he claimed that on
March 17 and 18, 2012, he worked with no restrictions as he was
unaware of any injury; however, on March 20, 2012, he had an
appointment with Dr. Madala where she told him he had an inguinal
hernia, and suggested that “work with [a] heavy patient caused it
but the date [was] unknown.” Dkt. #15 at 11. Plaintiff claims
that he did not report the injury in compliance with DSNC policy
because he was “unaware of the injury until Dr. Madala stated
it.” Dkt. #15 at 11.
Defendants state that, because Plaintiff failed to provide
specifics about the alleged accident and he could not provide
evidence of an actual injury, they denied Plaintiff’s request for
the incident report. Id.
Following this denial, Plaintiff allegedly “became
belligerent and argumentative as he had done in October 2011. Due
to his conduct, Plaintiff was told to leave Dziarcak’s office but
he refused.” Dkt. #6-2 at 8. Defendants cite this “inappropriate
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behavior on the part of Plaintiff” as the reason he was
terminated “for his insubordination and failure to report his
alleged accident as required by DSNC’s policy.” Dkt. #6-2 at 8.
Plaintiff argues that Defendant Dziarcak made false reports
about his work performance to “get revenge” when he “exercised
his civil rights.” Dkt. #15 at 11. He also states in his reply to
Defendants’ motion to dismiss that,
Dziarcak is responsible for my unlawful termination,
entire harm, and discrimination at work that occurred
to me in spite of the fact that I complained constantly
to support my worker’s and civil rights to avoid
further problems[.] [D]efendants and their subordinate
workers...hated me and they looked for any pretext to
retaliate by making unjustified notices about my work
performance to clear [their] own responsibility for
unfriendly and unsafe work at the facility.
Id. He admits that Dziarcak is not a state actor for the purposes
of § 1983, but instead argues that her Registered Nursing Licence
makes her “responsible for her conduct before [New York State]
Boards” and, in addition, that
There is an agreement between Defendants and state
actor to deprive plaintiff of constitutional rights,
e.g. double rules at work not controlled but covered by
the arbiters [to] whom I complained (NYSDHR
Investigator, Judge Protano, agency that verif[ies]
policy of the Employer, Labor Department that controls
work environment and safety work).
Dkt. #15 at 3, 11. This is the only explanation Plaintiff offers
regarding any type of state involvement in relation to his
claims.
IV. LEGAL STANDARD
8
Defendants have filed a motion to dismiss Plaintiff’s claims
pursuant to Federal Rule of Civil Procedure 12(b)(6). See dkt. #
6.
Defendants argue that Plaintiff has not stated a claim upon
which relief could be granted, even if all factual allegations in
the complaint were proved true. In addressing such motions, the
Court must accept “all factual allegations in the complaint as
true, and draw ... all reasonable inferences in the plaintiff’s
favor.”
Holmes v. Grubman, 568 F.3d 329, 335 (2d Cir. 2009).
This tenet does not apply to legal conclusions. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. at 678. “To survive a motion to
dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on
its face.”
Id.(quoting Bell Atl. v. Twombly, 550 U.S. 544, 570
(2007)).
When assessing the sufficiency of a complaint, particular
deference should be afforded to a pro se litigant. Pro se
complaints merit a generous construction by a Court determining
whether they state a cognizable cause of action. Erickson v.
Pardus, 551 U.S. 89, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081
(2007) (“‘[A] pro se complaint, however inartfully pleaded, must
be held to less stringent standards than formal pleadings drafted
by lawyers'”)(quoting Estelle v. Gamble, 429 U.S. 97, 106
9
(1976)(internal quotations omitted)). In the event of a perceived
deficiency in a pro se plaintiff's complaint, a court should not
dismiss without granting leave to amend at least once if there is
any indication that a valid claim might be stated. Branum v.
Clark, 927 F.2d 698, 704–05 (2d Cir. 1991); see also Fed.R.Civ.P.
15(a) (leave to amend “shall be freely given when justice so
requires”).
V. DISCUSSION
Plaintiff brings his claim under 42 U.S.C. § 1983. “To state
a claim for relief in an action brought under § 1983, [plaintiff]
must establish that he was deprived of a right secured by the
Constitution or laws of the United States, and the alleged
deprivation was committed under color of state law.” Am. Mfrs.
Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999). No action
exists for “‘merely private conduct, no matter how discriminatory
or wrongful’” Id. (quoting Blum v. Yaretsky, 334 U.S. 1, 13
(1948)). To establish state action, Plaintiff must show that the
person who caused his constitutional deprivation “‘may fairly be
said to be a state actor.’” Grogan v. Blooming Grove Volunteer
Ambulance Corps, 768 F.3d 259, 264 (2d Cir. 2014)(quoting Cranley
v. Nat’l Life Ins. Co. of Vt., 318 F.3d 105, 111 (2d Cir. 2003)).
State action requires a showing that “the ‘allegedly
unconstitutional conduct is fairly attributable to the State.’”
Id. (quoting Sullivan, 526 U.S. at 50). When a plaintiff contends
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that a private actor violated his rights, the plaintiff proves
state action “by demonstrating that ‘there is such a close nexus
between the State and the challenged action’ that seemingly
private behavior ‘may be fairly treated as that of the State
itself.’” Id. (quoting Brentwood Acad. v. Tenn. Secondary Sch.
Athletic Ass’n, 531 U.S. 288, 295 (2001)).
To determine whether the behavior can be attributed to the
state, the Court must “[identify] ‘the specific conduct of which
the plaintiff complains, rather than the general characteristics
of the entity.’” Id. (quoting Fabrikant v. French, 691 F.3d 193,
207 (2d Cir. 2012)). In making this determination, Courts employ
a number of factors, including “[t]hree main tests[.]” Fabrikant,
691 F.3d at 207. Those tests are:
(1) [when] 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 sate,
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 state (‘the public function
test’).
Id. (quoting Syblaski v. Indep. Grp. Home Living Program, 546
F.3d 255, 257 (2d Cir. 2008)).
In order to make out a claim for state action under the
“compulsion” test, a plaintiff must show that the state actor
“exercised coercive power or ... provides such significant
encouragement, either overt or covert, that the choice must in
11
law be deemed to be that of the State.” Blum, 457 U.S. at 1004,
102 S.Ct. 2777. (citations omitted).
Plaintiff has not alleged any facts which indicate that a
state actor coerced or encouraged the Defendants. Plaintiff
argues that Defendants, in their individual capacity, terminated
him “to avoid any accommodation for my disability.” Dkt. #15 at
9. Plaintiff makes no mention that his termination was the result
of coercion from a third party state actor. His claim, therefore,
fails the “compulsion” test.
To prevail under the “joint action” test, Plaintiff must
show that “[t]he State has so far insinuated itself into a
position of interdependence with [Defendants] ... that it must be
recognized as a joint participant in the challenged activity.”
Burton, 365 U.S. at 725, 81 S.Ct. 856. Here too, Plaintiff fails
to allege that the state has any type of interdependent
relationship with Defendants that they could be considered joint
participants. Therefore, Plaintiff also fails to meet the
requirements of the “joint action” test.
Finally, to prevail under the “public function” test,
Plaintiff must show that Defendants’ functions as providers of
nursing care are “‘traditionally the exclusive prerogative of the
State.’” Rendell–Baker, 457 U.S. at 842, 102 S.Ct. 2764 (emphasis
in original; citation omitted). Defendants’ roles as Assistant
Nursing Director and Payroll Benefits Manager are not
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traditionally exclusive prerogatives of the state. See Blum v.
Yaretsky, 457 U.S. 991, 1012 (1982)(decisions made in the
day-to-day administration of a nursing home are not traditional
and exclusive prerogatives of the State). Plaintiff thus fails to
meet the “public function” test as well.
The plaintiff has made no allegations that the defendants
were acting under color of state law when the plaintiff suffered
the alleged violations of his constitutional rights. To the
contrary, Plaintiff admits “the Defendants are not state actors.”
Dkt. #15 at 3. He instead argues that Dziarcak’s New York State
Registered Nursing License classifies her as a state actor.
Plaintiff is mistaken. The presence of state regulation, in the
absence of some concerted action with state officials, does not
transform a private party’s actions into state action under §
1983. See Grogan v. Blooming Grove Volunteer Ambulance Corps, 768
F.3d 259, 268 (2d Cir. 2014)(statutes and regulations demonstrate
that New York is involved in licensing of healthcare
organizations, but that fact alone is insufficient to support a
finding of state action); Doe v. Rosenberg, 996 F.Supp. 343, 356
(S.D.N.Y. 1998)(medical licensing and regulations are
insufficient to transform defendants into state actors for § 1983
purposes). Plaintiff has thus failed to allege that a state actor
deprived him of his constitutional rights as required by § 1983.
For this reason, the Court will dismiss Plaintiff’s § 1983 claim
13
with prejudice because amendment of the complaint would be
futile. However, the Court will not dismiss Plaintiff’s entire
claim with prejudice.
The facts alleged in Plaintiff’s complaint suggest that the
actions of which complains fall in the realm of the rights
secured by anti-discrimination law rather than violations of his
constitutional rights. The Court will dismiss the complaint with
leave to replead in a proper fashion any claims that Plaintiff
may have under federal anti-discrimination law, such as the
Americans with Disabilities Act, the Age Discrimination in
Employment Act, Title VII, and the Equal Pay Act.3 Plaintiff also
contends in his reply brief an Equal Protection claim, a First
Amendment claim, and several tort claims which are subject to
state law. Those claims are not properly before the Court because
they are not raised in Plaintiff’s complaint. See dkt. #15. The
Court declines to offer any opinion on the suitability of those
claims as they are not presently before the Court.4
3
The Court notes that individuals generally cannot be sued
under federal anti-discrimination law, though employers can. See
Tomka v. Seiler Corp., 66 F.3d 1295, 1317 (2d Cir. 1995); See
also Mandell v. County of Suffolk, 316 F.3d 368, 377 (2d Cir.
2003)(individual actors not subject to Title VII liability in
their personal capacities).
4
On July 29, 2015, Plaintiff filed a documented styled a
“motion for restated relief.” See dkt. # 22. That document
cites a number of statutes that allegedly provide a basis for
damages in this case. In light of the Court’s opinion here, that
motion will be denied. Plaintiff will have an opportunity to
plead causes of action in his amended complaint that address such
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VI: CONCLUSION
For the reasons set forth above, the Defendants’ motion to
dismiss, dkt. # 6, is hereby GRANTED, and all claims against
these defendants are DISMISSED.
Any claims brought pursuant to
42 U.S.C. § 1983 against the moving Defendants are dismissed with
prejudice.
Plaintiff may file an amended complaint within 30
days, however, setting forth certain claims as addressed more
particularly above. The failure to file an amended complaint
within this time frame will be deemed as an abandonment of any
claims for which leave to replead has been granted and will
result in judgment being entered against Plaintiff on these
claims without further order by the Court.
Plaintiff’s motion
for restated relief, dkt. # 22, is hereby DENIED.
IT IS SO ORDERED.
Dated:August 4, 2015
claims to damages.
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