Monreal v. State of New York

Filing 17

ORDER granting deft's 7 Motion to Dismiss. Signed by Judge Glenn T. Suddaby on 6/29/12. (cbm )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
______________________________________
FRANCISCO JAVIER MONREAL, MD,
Plaintiff,
v.

5:11-CV-0075
(GTS/TWD)

THE STATE OF NEW YORK; NEW YORK
STATE DEP’T OF HEALTH, Office of Prof.
Med. Conduct; NEW YORK STATE EDUC.
DEP’T; and NEW YORK STATE UNIFIED
COURT SYS.,1
Defendants.
______________________________________
APPEARANCES:

OF COUNSEL:

FRANCISCO JAVIER MONREAL
Plaintiff, Pro Se
4242 Baker Hill Road
Jamesville, NY 13078
HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Counsel for Defendants
615 Erie Boulevard West, Suite 102
Syracuse, NY 13204-2465

HEATHER R. RUBENSTEIN, ESQ.

GLENN T. SUDDABY, United States District Judge
MEMORANDUM-DECISION and ORDER
Currently before the Court, in this pro se civil rights action filed by Francisco Javier
Monreal (“Plaintiff”) against the State of New York, the New York State Department of Health’s

1

In his Amended Complaint, Plaintiff identifies Defendants in this action as “the
State of New York, its Health (OMPC) & Education Departments, and its Judicial System.”
(Dkt. No. 5.) Out of special solicitude to Plaintiff, the Court has liberally construed the Amended
Complaint as intending to assert claims against the four above-captioned Defendants.

Office of Professional Medical Conduct, the New York State Education Department, and the
New York State Unified Court System (“Defendants”), is Defendants’ motion to dismiss
Plaintiff’s Amended Complaint for lack of subject-matter jurisdiction pursuant to Fed. R. Civ. P.
12(b)(1), for insufficient service of process pursuant to Fed. R. Civ. P. 12(b)(5), and for failure to
state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6). (Dkt. No. 7.)
For the reasons set forth below, Defendants’ motion is granted.
I.

RELEVANT BACKGROUND
A.

Plaintiff’s Claims

Generally, liberally construed, Plaintiff's Amended Complaint alleges that, between
approximately February of 2005 and October of 2008, at various locations in the State of New
York, Defendants violated Plaintiff’s following rights: (1) his rights under the First Amendment
by revoking his medical license for expressing his medical opinions; (2) his rights under the
Fourteenth Amendment by denying him proper notice and the opportunity to appear, and present
evidence in his defense, at the administrative hearing at which Defendants revoked his license;
and (3) his rights under the Fourteenth Amendment by not providing sufficient judicial review of
the Defendants’ actions revoking his license. (See generally Dkt. No. 5 [Plf.’s Amend. Compl.].)
Familiarity with the factual allegations supporting these claims in Plaintiff’s Amended
Complaint is assumed in this Memorandum-Decision and Order, which is intended primarily for
review by the parties. (Id.)
B.

Defendants’ Motion

Generally, in support of their motion to dismiss, Defendants argue as follows: (1) the
Complaint has not been served on any named Defendant; (2) Defendants are protected from
liability as a matter of law by the doctrine of sovereign immunity under the Eleventh
2

Amendment; (3) the Amended Complaint fails to state a claim upon which relief can be granted;
(4) Plaintiff commenced this action after the expiration of the three-year statute of limitations;
(5) Plaintiff’s claims are precluded as a matter of law by the doctrine of collateral estoppel; and
(6) the Rooker-Feldman doctrine prevents the Court from exercising jurisdiction in this action.
(See generally Dkt. No. 7, Attach. 1 [Defs.’ Memo. of Law].)
Generally, in Plaintiff's response to Defendants’ motion, he argues as follows: (1) service
on the Attorney General of the State of New York, as counsel for the State, constitutes service on
the State of New York; (2) Defendants’ assertion of sovereign immunity is unjust; (3) the
Amended Complaint states claims that are legally sufficient; (4) because Defendants’ actions
violating Plaintiff’s rights continued through the date he commenced this action, the applicable
statute of limitations does not bar his claims; and (5) neither collateral estoppel nor the RookerFeldman doctrine applies, because Plaintiff has not yet had an opportunity to present his full case
in a court of law. (See generally Dkt. Nos. 8, 11-14.)
Defendants did not reply to Plaintiff’s response. (See generally Docket Sheet.)
On May 5, May 9, June 7, and August 8, 2011, Plaintiff filed four letters in further
response to Defendants’ motion. (Dkt. Nos. 11-14.) Not only were the letters filed after the
expiration of the deadline for any further briefing on Defendants’ motion (see Docket Entry
dated March 24, 2011), the letters effectively constituted sur-replies, in violation of Local Rule
7.1(b)(1). On January 21, 2011, Plaintiff receive a courtesy copy of the Local Rules of Practice
for this Court. (Dkt. No. 2.) Because they were wilfully filed in violation of the motion’s
briefing deadline and Court’s Local Rules, the letters will not be considered by the Court. The
Court would add only that, even if it were to consider the letters, that consideration would not
change the outcome of this Memorandum-Decision and Order.
3

II.

RELEVANT LEGAL STANDARDS
A.

Legal Standard Governing Motions to Dismiss for Lack of Subject-Matter
Jurisdiction

“It is a fundamental precept that federal courts are courts of limited jurisdiction.” Owen
Equipment & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). Generally, a claim may be
properly dismissed for lack of subject-matter jurisdiction where a district court lacks
constitutional or statutory power to adjudicate it. Makarova v. U.S., 201 F.3d 110, 113 (2d Cir.
2000). A district court may look to evidence outside of the pleadings when resolving a motion to
dismiss for lack of subject-matter jurisdiction. Makarova, 201 F.3d at 113. The plaintiff bears
the burden of proving subject-matter jurisdiction by a preponderance of the evidence.
Makarova, 201 F.3d at 113 (citing Malik v. Meissner, 82 F.3d 560, 562 [2d Cir. 1996]). When a
court evaluates a motion to dismiss for lack of subject-matter jurisdiction, all ambiguities must
be resolved and inferences drawn in favor of the plaintiff. Aurecchione v. Schoolman Transp.
Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005) (citing Makarova, 201 F.3d at 113).
B.

Legal Standard Governing Motions to Dismiss for Insufficient Service of
Process

Rule 4(m) of the Federal Rules of Civil Procedure provides, in pertinent part, as follows:
If a defendant is not served within 120 days after the complaint is filed,
the court--on motion or its own after notice to the plaintiff--must dismiss
the action without prejudice against that defendant or order that service be
made within a specified time. But if the plaintiff shows good cause for the
failure, the court must extend the time for service for an appropriate
period.
Fed. R. Civ. P. 4(m).

4

C.

Legal Standard Governing Motions to Dismiss for Failure to State a Claim

It has long been understood that a dismissal for failure to state a claim upon which relief
can be granted, pursuant to Fed. R. Civ. P. 12(b)(6), can be based on one or both of two grounds:
(1) a challenge to the "sufficiency of the pleading" under Fed. R. Civ. P. 8(a)(2); or (2) a
challenge to the legal cognizability of the claim. Jackson v. Onondaga Cnty., 549 F. Supp.2d
204, 211, nn. 15-16 (N.D.N.Y. 2008) (McAvoy, J., adopting Report-Recommendation on de
novo review).
Because such dismissals are often based on the first ground, a few words regarding that
ground are appropriate. Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a
pleading contain "a short and plain statement of the claim showing that the pleader is entitled to
relief." Fed. R. Civ. P. 8(a)(2) [emphasis added]. In the Court’s view, this tension between
permitting a “short and plain statement” and requiring that the statement “show[]” an entitlement
to relief is often at the heart of misunderstandings that occur regarding the pleading standard
established by Fed. R. Civ. P. 8(a)(2).
On the one hand, the Supreme Court has long characterized the “short and plain”
pleading standard under Fed. R. Civ. P. 8(a)(2) as "simplified" and "liberal." Jackson, 549 F.
Supp.2d at 212, n.20 (citing Supreme Court case). On the other hand, the Supreme Court has
held that, by requiring the above-described "showing," the pleading standard under Fed. R. Civ.
P. 8(a)(2) requires that the pleading contain a statement that "give[s] the defendant fair notice of
what the plaintiff’s claim is and the grounds upon which it rests." Jackson, 549 F. Supp.2d at
212, n.17 (citing Supreme Court cases) (emphasis added).

5

The Supreme Court has explained that such fair notice has the important purpose of
“enabl[ing] the adverse party to answer and prepare for trial” and “facilitat[ing] a proper decision
on the merits” by the court. Jackson, 549 F. Supp.2d at 212, n.18 (citing Supreme Court cases);
Rusyniak v. Gensini, 629 F. Supp.2d 203, 213 & n.32 (N.D.N.Y. 2009) (Suddaby, J.) (citing
Second Circuit cases). For this reason, as one commentator has correctly observed, the “liberal”
notice pleading standard "has its limits." 2 Moore’s Federal Practice § 12.34[1][b] at 12-61 (3d
ed. 2003). For example, numerous Supreme Court and Second Circuit decisions exist holding
that a pleading has failed to meet the “liberal” notice pleading standard. Rusyniak, 629 F.
Supp.2d at 213, n.22 (citing Supreme Court and Second Circuit cases); see also Ashcroft v.
Iqbal, 129 S. Ct. 1937, 1949-52 (2009).
Most notably, in Bell Atlantic Corp. v. Twombly, the Supreme Court reversed an
appellate decision holding that a complaint had stated an actionable antitrust claim under 15
U.S.C. § 1. Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007). In doing so, the Court
"retire[d]" the famous statement by the Court in Conley v. Gibson, 355 U.S. 41, 45-46 (1957),
that "a complaint should not be dismissed for failure to state a claim unless it appears beyond
doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him
to relief." Twombly, 127 S. Ct. at 1968-69. Rather than turn on the conceivability of an
actionable claim, the Court clarified, the "fair notice" standard turns on the plausibility of an
actionable claim. Id. at 1965-74. The Court explained that, while this does not mean that a
pleading need "set out in detail the facts upon which [the claim is based]," it does mean that the
pleading must contain at least "some factual allegation[s]." Id. at 1965. More specifically, the
"[f]actual allegations must be enough to raise a right to relief above the speculative level [to a
plausible level]," assuming (of course) that all the allegations in the complaint are true. Id.
6

As for the nature of what is “plausible,” the Supreme Court explained that “[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.” Ashcroft v. Iqbal,
129 S.Ct. 1937, 1949 (2009). “[D]etermining whether a complaint states a plausible claim for
relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense. . . . [W]here the well-pleaded facts do not permit the court to
infer more than the mere possibility of misconduct, the complaint has alleged–but it has not
show[n]–that the pleader is entitled to relief.” Iqbal, 129 S.Ct. at 1950 [internal quotation marks
and citations omitted]. However, while the plausibility standard “asks for more than a sheer
possibility that a defendant has acted unlawfully,” id., it “does not impose a probability
requirement.” Twombly, 550 U.S. at 556.
Because of this requirement of factual allegations plausibly suggesting an entitlement to
relief, “the tenet that a court must accept as true all of the allegations contained in the complaint
is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action,
supported by merely conclusory statements, do not suffice.” Iqbal, 129 S. Ct. at 1949.
Similarly, a pleading that only “tenders naked assertions devoid of further factual enhancement”
will not suffice. Iqbal, 129 S.Ct. at 1949 (internal citations and alterations omitted). Rule 8
“demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id.
(citations omitted).
This pleading standard applies even to pro se litigants. While the special leniency
afforded to pro se civil rights litigants somewhat loosens the procedural rules governing the form
of pleadings (as the Second Circuit has observed), it does not completely relieve a pro se

7

plaintiff of the duty to satisfy the pleading standards set forth in Fed. R. Civ. P. 8, 10 and 12.2
Rather, as both the Supreme Court and Second Circuit have repeatedly recognized, the
requirements set forth in Fed. R. Civ. P. 8, 10 and 12 are procedural rules that even pro se civil
rights plaintiffs must follow.3 Stated more simply, when a plaintiff is proceeding pro se, "all
normal rules of pleading are not absolutely suspended." Jackson, 549 F. Supp.2d at 214, n.28
[citations omitted].4
Finally, a few words are appropriate regarding what documents are considered when a
dismissal for failure to state a claim is contemplated. Generally, when contemplating a dismissal
pursuant to Fed. R. Civ. P. 12(b)(6) or Fed. R. Civ. P. 12(c), the following matters outside the
four corners of the complaint may be considered without triggering the standard governing a
motion for summary judgment: (1) documents attached as an exhibit to the complaint or answer,
(2) documents incorporated by reference in the complaint (and provided by the parties), (3)

2

See Vega v. Artus, 610 F. Supp.2d 185, 196 & nn.8-9 (N.D.N.Y. 2009) (Suddaby,
J.) (citing Second Circuit cases); Rusyniak, 629 F. Supp.2d at 214 & n.34 (citing Second Circuit
cases).
3

See Vega, 610 F. Supp.2d at 196, n.10 (citing Supreme Court and Second Circuit
cases); Rusyniak, 629 F. Supp.2d at 214 & n.34 (citing Second Circuit cases).
4

It should be emphasized that Fed. R. Civ. P. 8's plausibility standard, explained in
Twombly, was in no way retracted or diminished by the Supreme Court's decision (two weeks
later) in Erickson v. Pardus, in which (when reviewing a pro se pleading) the Court stated,
"Specific facts are not necessary" to successfully state a claim under Fed. R. Civ. P. 8(a)(2).
Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) [emphasis added]. That statement was merely
an abbreviation of the often-repeated point of law–first offered in Conley and repeated in
Twombly–that a pleading need not "set out in detail the facts upon which [the claim is based]" in
order to successfully state a claim. Twombly, 127 S. Ct. 1965, n.3 (citing Conley, 355 U.S. at 47)
[emphasis added]. That statement did not mean that all pleadings may achieve the requirement
of "fair notice" without ever alleging any facts whatsoever. Clearly, there must still be enough
fact set out (however set out, whether in detail or in a generalized fashion) to raise a right to
relief above the speculative level to a plausible level. See Rusyniak, 629 F. Supp.2d at 214 &
n.35 (explaining holding in Erickson).
8

documents that, although not incorporated by reference, are “integral” to the complaint, or (4)
any matter of which the court can take judicial notice for the factual background of the case.5
Moreover, in the Second Circuit, a pro se plaintiff’s papers in response to a defendant’s motion
to dismiss for failure to state a claim may be considered as effectively amending the allegations
of his complaint–to the extent those papers are consistent with the allegations in the complaint.
D.

Legal Standard Governing Application of Collateral Estoppel

“Collateral estoppel, like the related doctrine of res judicata, has the dual purpose of
protecting litigants from the burden of relitigating an identical issue with the same party of his
privy and of promoting judicial economy by preventing needless litigation.” Parklane Hosiery
Co., Inc. v. Shore, 439 U.S. 322, 326 (1979). Collateral estoppel precludes relitigation of issues

5

See Fed. R. Civ. P. 10(c) (“A copy of any written instrument which is an exhibit
to a pleading is a part thereof for all purposes.”); L-7 Designs, Inc. v. Old Navy, LLC, No. 10573, 2011 WL 2135734, at *1 (2d Cir. June 1, 2011) (explaining that conversion from a motion
to dismiss for failure to state a claim to a motion for summary judgment is not necessary under
Fed. R. Civ. P. 12[d] if the “matters outside the pleadings” in consist of [1] documents attached
to the complaint or answer, [2] documents incorporated by reference in the complaint (and
provided by the parties), [3] documents that, although not incorporated by reference, are
“integral” to the complaint, or [4] any matter of which the court can take judicial notice for the
factual background of the case); DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir.
2010) (explaining that a district court considering a dismissal pursuant to Fed. R. Civ. 12(b)(6)
“may consider the facts alleged in the complaint, documents attached to the complaint as
exhibits, and documents incorporated by reference in the complaint. . . . Where a document is
not incorporated by reference, the court may neverless consider it where the complaint relies
heavily upon its terms and effect, thereby rendering the document ‘integral’ to the complaint. . . .
However, even if a document is ‘integral’ to the complaint, it must be clear on the record that no
dispute exists regarding the authenticity or accuracy of the document. It must also be clear that
there exist no material disputed issues of fact regarding the relevance of the document.”)
[internal quotation marks and citations omitted]; Chambers v. Time Warner, Inc., 282 F.3d 147,
152 (2d Cir. 2009) (“The complaint is deemed to include any written instrument attached to it as
an exhibit or any statements or documents incorporated in it by reference.”) (internal quotation
marks and citations omitted); Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72
(2d Cir.1995) (per curiam) (“[W]hen a plaintiff chooses not to attach to the complaint or
incorporate by reference a [document] upon which it solely relies and which is integral to the
complaint,” the court may nevertheless take the document into consideration in deciding [a]
defendant's motion to dismiss, without converting the proceeding to one for summary
judgment.”) (internal quotation marks and citation omitted).
9

actually litigated and necessary to the outcome of the first action. Parklane, 439 U.S. at 327 n.
5. The Second Circuit has noted that while New York law determines the preclusive effect of a
New York State court judgment, there appears to be no significant difference between federal
and New York law regarding collateral estoppel. Marvel Characters, Inc. v. Simon, 310 F.3d
280 (2d Cir. 2002) (citing Pike v. Freeman, 266F.3d 78, 90 n.14 [2d Cir. 2001]). A party
asserting collateral estoppel must prove four elements: (1) the issues of both proceedings must be
identical, (2) the relevant issues were actually litigated and decided in the prior proceeding, (3)
there must have been a full and fair opportunity for the party to litigate the issue in the prior
proceeding, and (4) the issues were necessary to support a valid and final judgment on the
merits. Central Hudson Gas & Elec. Corp. v. Empresa Naviera Santa S.A., 56 F.3d 359, 360 (2d
Cir. 1995).
E.

Legal Standard Governing Application of the Rooker-Feldman Doctrine

Under 28 U.S.C. § 1257, the United States Supreme Court has exclusive appellate
jurisdiction to reverse or modify a judgment by a state’s highest court. The Rooker-Feldman
doctrine provides that losing parties in state court cannot bring a claim in federal district court to
review and reject a judgment by the state court. Exxon Mobile Corp. v. Saudi Basic Indus.
Corp., 544 U.S. 280, 283-84 (2005) (citing Rooker v. Fidelity Trust Co., 263 U.S. 413, 414
[1923]; District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 [1983]). Claims
brought in district court in violation of the Rooker-Feldman Doctrine are properly dismissed for
lack of subject-matter jurisdiction. Exxon Mobile Corp., 544 U.S. at 284. The Rooker-Feldman
doctrine extends to claims that are “inextricably intertwined” with issues already settled in state
court. Bridgewater Operating Corp. v. Feldstein, 346 F.3d 27, 29 (2d Cir. 2003) (holding that
any claim that directly implicates a final judgment in state court is barred by Rooker-Feldman).

10

Rooker-Feldman does not override or supplant other preclusion doctrines. Exxon Mobile Corp.,
544 U.S. at 284.
F.

Legal Standard Governing Plaintiff’s Claims

Plaintiff’s claims arise under a federal civil rights law that provides a remedy for
individuals who have been deprived of their federal statutory or constitutional rights under color
of state law. More specifically, 42 U.S. § 1983, the statute upon which the Plaintiff relies for
each of his claims, provides, in pertinent part, as follows:
Every person who, under color of any statute, ordinance, [or] regulation . .
. of any State . . . , subjects or causes to be subjected, any citizen of the
United States . . . to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to the
party injured in an action at law . . . .
42 U.S.C. § 1983 (2006).
Generally, to establish a claim under § 1983, a plaintiff must establish, by a
preponderance of the evidence, each of the following three things: (1) the defendant was acting
under color of state law; (2) the defendant’s conduct deprived the plaintiff of a federal right, that
is, a right secured by the Constitution or federal statute; and (3) the defendant’s conduct caused
an injury to the plaintiff. See O’Neil v. Bebee, 5:09-CV-1133, 2010 WL 502948, at *5
(N.D.N.Y. Feb. 10, 2010) (Suddaby, J.) (citing Dwares v. City of New York, 985 F.2d 94, 98
[2d Cir. 1993]).
III.

ANALYSIS
A.

Whether Plaintiff’s Amended Complaint Should Be Dismissed Because of
Defendants’ Sovereign Immunity

After carefully considering the matter, the Court answers this question in the affirmative
for the reasons stated in Defendants’ memorandum of law. (Dkt. No. 7, Attach. 1 [Defs.’ Memo.
of Law]). Plaintiff’s argument that the State’s assertion of sovereign immunity is “unfair” is not
11

an exception to doctrine of sovereign immunity.
Because the Court lacks subject-matter jurisdiction for these claims, Plaintiff’s Amended
Complaint is dismissed.
B.

Whether, in the Alternative, Plaintiff’s Claims Should Be Dismissed Because
of the Statute of Limitations

After carefully considering the matter, the Court answers this question in the affirmative
as to Plaintiff’s claims against the State of New York. the New York State Department of
Health’s Office of Professional Medical Conduct, and the New York State Education
Department; and the Court answers this question in the negative as to Plaintiff’s claim against
the New York State Unified Court System.
The last relevant actions taken by the Health and Education Departments were the
revocation of his medical license and the denial of his administrative appeal of that decision.
(Dkt. No. 5, Attach. 2 [Plf.’s Amend. Compl.].) These events occurred in July and August of
2007, which is more three years before Plaintiff commenced this action on January 21, 2011.
(Id.) Therefore, Plaintiff’s claims against Defendants the State of New York, the New York
State Department of Health’s Office of Professional Medical Conduct, and the New York State
Education Department are barred by the applicable statute of limitations.
However, the last relevant actions taken by the New York State Unified Court System
were the judgment in his Article 78 petition by the Third Department of the Appellate Division
on June 12, 2008, and the denial of Plaintiff’s motion for leave to appeal by the Court of Appeals
on September 16, 2008. (Dkt. No. 5, Attach. 13 [Plf.’s Amend. Compl.].) Both of these actions
occurred within three years of Plaintiff commencing this action. Therefore, the claims against
the New York State Unified Court System are not barred by the applicable statute of limitation.

12

For these reasons, only Plaintiff’s claims against the State of New York, the New York
State Department of Health’s Office of Professional Medical Conduct, and the New York State
Education Department are dismissed based on this alternative ground.
C.

Whether, in the Alternative, Plaintiff’s Claims Should Be Dismissed Because
of the Doctrine of Collateral Estoppel

After carefully considering the matter, the Court answers this question in the affirmative
as to Plaintiff’s claim against the State of New York, and the New York State Department of
Health’s Office of Professional Medical Conduct, and the New York State Education
Department as to Plaintiff’s claim for violation of his Fourteenth Amendment rights; and the
Court answers this question in the negative as to Plaintiff’s claim for violation of his First
Amendment rights, and as to Plaintiff’s claim against the New York State Unified Court System
for violation of his Fourteenth Amendment rights. Plaintiff already raised the issue that the
Office of Professional Medical Conduct violated his due process rights in his Article 78 petition
to the Appellate Division. (Dkt. No. 5, Attach. 13 at 67 [Plf.’s Amend. Compl.].) The
Appellate Division ruled against Plaintiff on this issue, and issued a judgment upholding the
validity of the hearing on the merits. (Dkt. No. 5, Attach. 13, at 78 [Plf.’s Amend. Compl.].)
Generally, a prior unfavorable determination in an Article 78 action brought by a plaintiff
against state employees in their official capacities does not serve to collaterally estop that
plaintiff from subsequently commencing a 42 U.S.C. § 1983 civil rights action for damages
against a state employee in his individual capacity, because the relief sought in the § 1983 action
was unavailable in the Article 78 action.6 Here, however, Plaintiff does not appear to have

6

See Hicks v. Richard Low, 309 F. App'x 472, 474 (2d Cir. 2009) (“Hicks argues
that the New York state court Article 78 proceeding collaterally estops the Defendants-Appellees
from relitigating the issue of whether a due process violation occurred. We disagree. Unlike the
Article 78 proceeding, which could only be brought against the agency and the officers in their
13

asserted a claim against any state employee in his individual capacity. As a result, the Court
finds that the doctrine of collateral estoppel applies to those issues raised in Plaintiff’s prior
actions in state court.
However, as far as the Court can determine, Plaintiff’s other two claims raise issues that
were not considered in any of the previous proceedings, and are thus not precluded by collateral
estoppel.
For these reasons, only Plaintiff’s claim against the State of New York, the New York
State Department of Health’s Office of Professional Medical Conduct, and the New York State
Education Department for violating his Fourteenth Amendment rights is dismissed based on this
alternative ground.
D.

Whether, in the Alternative, Plaintiff’s Claims Should Be Dismissed Because
of the Rooker-Feldman Doctrine

After carefully considering the matter, the Court answers this question in the affirmative

official capacities, in this case the defendants are being sued as individuals. Further, the defenses
of qualified immunity and lack of personal involvement were not available to the defendants in
the Article 78 proceeding, nor were money damages at stake.”); Ford v. Krusen, 06-CV-0890,
2009 WL 959534, at *6 (N.D.N.Y. Apr.6, 2009) (Report-Recommendation by Peebles, M.J.,
adopted by Suddaby, J.) (“[T]he prior unfavorable Article 78 determination [brought by the
prisoner-plaintiff against prison officials] did not serve to foreclose the [prisoner-] plaintiff from
commencing this subsequent section 1983 civil rights action [against prison officials] for
damages, since such relief is unavailable in an Article 78 proceeding.”); Proctor v. Kelly, 05CV-0692, 2008 WL 5243925, at *8, n. 20 (N.D.N.Y. Dec.16, 2008) (Suddaby, J.) (“The Court
would only note that the doctrine of collateral estoppel does not appear to apply under the
circumstances. Among other things, Plaintiff sued Defendant Goord is his official capacity in his
Article 78 proceeding, and he now sues Defendant Goord in his individual or personal
capacity.”); Fletcher v. Goord, 07-CV-0707, 2008 WL 4426763, at *10 (N.D.N.Y. Sept.25,
2008) (Report–Recommendation by Lowe, M.J., adopted by Sharpe, J.) (“Simply stated, I find
nothing in Justice Ceresia's ruling saying that Plaintiff is not entitled to money damages due to
the miscalculation. The issue may have been presented to the New York State Supreme Court in
a vague and obscure way (due to Plaintiff's request for “any other form of relief” in his Petition),
but it does not appear to have been squarely decided by the Supreme Court, nor does it appear to
have been essential to the Court's decision.”).
14

as to Plaintiff’s claims for violation of his Fourteenth Amendment rights, and in the negative as
to Plaintiff’s claim for violation of his First Amendment rights. Any consideration of Plaintiff’s
due process claims would implicate the judgment of the state court, either directly (because
Plaintiff challenges the judgment itself) or indirectly (because the Appellate Division rejected
Plaintiff’s prior argument that the Office of Professional Medical Conduct’s hearing denied him
his due process). (Dkt. No. 5, Attach. 13, at 78 [Plf.’s Amend. Compl.].)
However, as the Court noted in Part III(C) of this Memorandum-Decision and Order,
Plaintiff’s claim for violation of his First Amendment rights was not raised in the prior
proceedings. Therefore, the Rooker-Feldman doctrine does not apply to Plaintiff’s First
Amendment claim.
For these reasons, only Plaintiff’s claims for violation of his Fourteenth Amendment
rights are dismissed based on this alternative ground.
E.

Whether, in the Alternative, Plaintiff’s Amended Complaint Should Be
Dismissed for Failure to State a Claim upon Which Relief Can Be Granted

After carefully considering the matter, the Court answers this question in the affirmative
as to Plaintiff’s claim for violations of his First Amendment rights for the reasons stated in
Defendants’ memorandum of law. (Dkt. No. 7, Attach. 1 [Defs.’ Memo. of Law].) The Court
also answers this question in the affirmative as to Plaintiff’s claims for violations of his
Fourteenth Amendment rights for the reasons stated in Parts III.A. through III.D. of this
Memorandum-Decision and Order. Furthermore, the Court notes that Plaintiff’s own attachment
to his Amended Complaint plausibly suggests that he received all the process he was due. (Dkt.
No. 5, Attach. 13 at 2, 78 [Plf.’s Amend. Compl.].)
For these reasons, Plaintiff’s Amended Complaint is dismissed based on this alternative
ground.

15

F.

Whether, in the Alternative, Plaintiff’s Amended Complaint Should Be
Dismissed Because of Insufficient Service of Process

Generally, pro se litigants receive special leniency in judicial proceedings. Here,
Plaintiff clearly tried to serve the State of New York by serving the New York State Attorney
General’s office. (Dkt. No. 6.) Neither the proof of service returned by Plaintiff nor
Defendants’ memorandum of law state Mr. House’s position in the Attorney General’s office.
(Dkt. No. 6 [Plf.’s Summons]; Dkt. No. 7, Attach. 1 [Defs’. Memo. of Law].) If Mr. House
was at the time an Assistant Attorney General, then delivery of the summons constituted
personal service on the State of New York under N.Y. C.P.L.R. § 307(1) and Fed. R. Civ. P.
4(j)(2)(B). In addition, after Defendants filed this motion to dismiss, Plaintiff served the
Governor of New York on March 31, 2011. (Dkt. No. 9 [Plf.’s Summons].) This was within
the 120-day deadline under Fed. R. Civ. P. 4(m), and constituted service on the State of New
York under Fed. R. Civ. P. 4(j)(2)(A). However, from the record, it does not appear that
Plaintiff has attempted to serve the Health or Education Departments or any member of the New
York State Unified Court System.
Given the other deficiencies in Plaintiff’s claims set forth above, the Court does not need
to, and does not, decide the issue of the sufficiency Plaintiff’s service of process.
G.

Whether Plaintiff’s Amended Complaint Should Be Dismissed With or
Without Prejudice

Generally, when a district court dismisses a pro se action, the plaintiff will be allowed to
amend his action. See Gomez v. USAA Fed. Savings Bank, 171 F.3d 794, 796 (2d Cir. 1999).
However, an opportunity to amend is not required where the plaintiff has already been afforded
the opportunity to amend. Abascal v. Hilton, 04-CV-1401, 2008 WL 268366, at *8 (N.D.N.Y.
Jan. 13, 2008) (Kahn, J., adopting, on de novo review, Report-Recommendation by Lowe, M.J.)
(“Of course, granting a pro se plaintiff an opportunity to amend is not required where the
16

plaintiff has already been given a chance to amend his pleading.”), aff’d, 357 F. App’x 388 (2d
Cir. 2009); accord, Shuler v. Brown, 07-CV-0937, 2009 WL 790973, at *5 & n.25 (N.D.N.Y.
March 23, 2009) (McAvoy, J., adopting Report-Recommendation by Lowe, M.J.), Smith v.
Fischer, 07-CV-1264, 2009 WL 632890, at *5 & n.20 (N.D.N.Y. March 9, 2009) (Hurd, J.,
adopting Report-Recommendation by Lowe, M.J.).7
Moreover, an opportunity to amend is not required where the defects in the plaintiff’s
claims are substantive rather than merely formal, such that any amendment would be futile. As
the Second Circuit has explained, "[w]here it appears that granting leave to amend is unlikely to

7

See also Foman v. Davis, 371 U.S. 178, 182 (1962) (explaining that denial of
leave to amend not abuse of discretion movant has repeatedly failed to cure deficiencies in
pleading); Coleman v. brokersXpress, LLC, 375 F. App'x 136, 137 (2d Cir. 2010) (“Nor can we
conclude that the district court abused its discretion in denying Coleman leave to amend. The
district court afforded Coleman one opportunity to amend the complaint, and Coleman made no
specific showing as to how he would cure the defects that persisted if given a second opportunity
to amend.”); Dyson v. N.Y. Health Care, Inc ., 353 F. App'x 502, 503-03 (2d Cir. 2009) (“[T]he
district court did not abuse its discretion by dismissing Dyson's third amended complaint with
prejudice. . . . [T]he district court afforded Dyson three opportunities to file an amended
complaint so as to comply with Rule 8(a)(2), and, despite these, she did not plead any facts
sufficient to show that she was plausibly entitled to any relief.”); Salahuddin v. Cuomo, 861 F.2d
40, 42 (2d Cir. 1988) (“We do not mean to imply that the court has no power to dismiss a prolix
complaint without leave to amend in extraordinary circumstances, such as where leave to amend
has previously been given and the successive pleadings remain prolix and unintelligible.”);
Prezzi v. Schelter, 469 F.2d 691, 692 (2d Cir. 1972) (affirming dismissal of pro se plaintiff’s
amended complaint without leave to amend, for failure to state a claim upon which relief can be
granted, without engaging in analysis of whether second amended complaint would be futile);
Yang v. New York City Trans. Auth., 01-CV-3933, 2002 WL 31399119, at *2 (E.D.N.Y. Oct. 24,
2002) (“Yang's amended complaint fails to remedy this defect in his pleadings. . . . His equal
protection claim is dismissed.”), aff’d, 71 F. App’x 90 (2d Cir. 2003); Payne v. Malemathew, 09CV-1634, 2011 WL 3043920, at *6 (S.D.N.Y. July 22, 2011) (“Plaintiff has repeatedly failed to
cure the defects in his claims despite having received detailed instructions and despite the bases
of the dismissals having been specified in advance, and he has not identified any additional facts
he could advance now that would address these defects. Accordingly, nothwithstanding
Plaintiff's pro se status, leave to amend yet again is denied.”); Advanced Marine Tech. v.
Burnham Sec., Inc., 16 F. Supp.2d 375, 384 (S.D.N.Y. 1998) (“While that failure to plead special
damages with respect to the other alleged representations in theory might be cured by
amendment, plaintiff already has amended once and has not sought leave to amend again.
Accordingly, the fraud claims will be dismissed except to the limited extend indicated.”).
17

be productive, . . . it is not an abuse of discretion to deny leave to amend." Ruffolo v.
Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir.1993) (citations omitted), accord, Brown v.
Peters, 95-CV-1641, 1997 WL 599355, at *1 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.) ("[T]he
court need not grant leave to amend where it appears that amendment would prove to be
unproductive or futile.”) (citation omitted); see also Foman v. Davis, 371 U.S. 178, 182 (1962)
(denial not abuse of discretion where amendment would be futile); Cuoco v. Moritsugu, 222 F.3d
99, 112 (2d Cir. 2000) ("The problem with Cuoco's causes of action is substantive; better
pleading will not cure it. Repleading would thus be futile. Such a futile request to replead
should be denied.") (citation omitted); Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48
(2d Cir. 1991) (“Of course, where a plaintiff is unable to allege any fact sufficient to support its
claim, a complaint should be dismissed with prejudice.”) (citation omitted); Health-Chem Corp.
v. Baker, 915 F.2d 805, 810 (2d Cir.1990) (“[W]here . . . there is no merit in the proposed
amendments, leave to amend should be denied”).8
Here, Plaintiff has already exercised his right to amend his Complaint. In addition, the
sole claim that Plaintiff could conceivably assert (that officials from the Office of Professional
Medical Conduct in their individual capacities violated his due process rights under the
Fourteenth Amendment) is clearly barred by the expiration of the applicable statute of

8

The Court notes that two Second Circuit cases exist reciting the standard as being
that the Court should grant leave to amend "unless the court can rule out any possibility,
however unlikely it might be, that an amended complaint would succeed in stating a claim."
Gomez v. USAA Federal Sav. Bank, 171 F.3d 794, 796 (2d Cir. 1999); Abbas v. Dixon, 480 F.3d
636, 639 (2d Cir. 2007). The problem with these cases is that their "rule out any possibility,
however likely it might be" standard is rooted in the "unless it appears beyond doubt" standard
set forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), which was "retire[d]" by the Supreme
Court in Bell Atlantic Corporation v. Twombly, 127 S. Ct. 1955 (2007). See Gomez v. USAA
Federal Sav. Bank, 171 F.3d 794, 796 (relying on Branum v. Clark, 927 F.2d 698, 705 [2d Cir.
1991], which relied on Conley v. Gibson, 355 U.S. 41, 45-46 [1957]). Thus, this standard does
not appear to be an accurate recitation of the governing law.
18

limitations, even if the amendment were to relate back to the date of the original Complaint
under Fed. R. Civ. P. 15(c).
For all these reasons, the Amended Complaint should be dismissed with prejudice.
ACCORDINGLY, it is
ORDERED that Defendant’s motion to dismiss Plaintiff’s Amended Complaint (Dkt.
No. 7) is GRANTED; and it is further
ORDERED that Plaintiff’s Amended Complaint (Dkt. No. 5) is DISMISSED with
prejudice.
Dated: June 29, 2012
Syracuse, New York

19