Clemmons v. Feltz et al

Filing 80

MEMO OPINION re: 48 MOTION to Dismiss Notice of Motion. filed by Gerald Lorraine, Transport Workers Union of America, 58 MOTION to Dismiss Complaint. filed by Andrew Hodes, Metro North Railroad, David Plumb, Ja mes Walker. For the foregoing reasons, the Union Defendants motion to dismiss the SAC under Rule 12(b)(6) is GRANTED. The Metro-North Defendants motion to dismiss under Rule 12(b)(1) is DENIED, but their motion to dismiss under Rule 12(b)(6) is GRANTED. Defendant Plumbs motion to dismiss under Rule 12(b)(2) is GRANTED. The Clerk of Court is directed to terminate all pending motions, adjourn all remaining dates, and close this case. The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). (Signed by Judge Katherine Polk Failla on 9/26/2017) (js)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------------------------X
:
ANTHONY LEON CLEMMONS,
:
:
:
Plaintiff,
:
:
v.
:
ANDREW HODES, DAVID PLUMB,
:
:
GERALD LORRAINE, FREDERICK N.
CHIDESTER, NANCY F. EISCHEN, JAMES :
WALKER, METRO-NORTH RAILROAD, and :
TRANSPORT WORKERS UNION OF
:
AMERICA,
:
:
Defendants. :
:
----------------------------------------------------- X

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: September 26, 2017
______________

15 Civ. 8975 (KPF)
OPINION AND ORDER

KATHERINE POLK FAILLA, District Judge: 1
For nearly three years, Plaintiff Anthony Leon Clemmons was a member
of the Transport Workers Union of America (“TWUA”), who worked as a train
car cleaner for Metro-North Railroad (“Metro-North”). Though the cause of his
injury is disputed, Plaintiff was injured, somehow, in December 2010. Initially,
Plaintiff told Metro-North that he was injured while cleaning a train car; he
later recanted that story and, following a disciplinary hearing in 2012, was
terminated for falsifying an injury report. Plaintiff’s administrative appeal of
that termination was denied in 2014, prompting Plaintiff to file this suit against
Metro-North, the TWUA, and several railroad and union employees. Among a
multitude of claims, Plaintiff alleges a violation of the Equal Protection Clause
of the Fourteenth Amendment; cruel and unusual punishment in violation of
1

The Clerk of Court is directed to modify the caption as provided above.

the Eighth Amendment; violations of his procedural due process rights; civil
and criminal conspiracy; and breach of the duty of fair representation.
Before the Court are two motions to dismiss — one filed by Metro-North,
Andrew Hodes, James Walker, and David Plumb (collectively, the “Metro-North
Defendants”), and a second filed by the TWUA and Gerald Lorraine (collectively,
the “Union Defendants”). For the reasons stated below, both motions to
dismiss are granted. 2

2

This Opinion draws on facts from two sources: the Second Amended Complaint (“SAC”
(Dkt. #45)), and the many exhibits thereto. See, e.g., Goel v. Bunge, Ltd., 820 F. 3d 554,
559 (2d Cir. 2016) (finding that district courts may consider “documents appended to
the complaint” when evaluating a pleading on a motion to dismiss). The exhibits
include excerpts from the transcript of Plaintiff’s November 30, 2012 disciplinary
hearing before Defendant Metro-North Hearing Officer James Walker. (SAC, Ex. 17-21).
Both the Union Defendants and the Metro North Defendants include a complete copy of
the hearing transcript (“Hearing Tr.”) with their moving papers. (See Dkt. #51, Ex. A;
Dkt. #59, Ex. G). Because Plaintiff relied heavily on the hearing transcript in drafting
his SAC (see, e.g., SAC ¶¶ 52-57), the Court is not required to confine itself to only
those pages Plaintiff chose to append as exhibits. Rothman v. Gregor, 220 F.3d 81, 8889 (2d Cir. 2000) (“For purposes of a motion to dismiss, we have deemed a complaint to
include … documents that the plaintiffs either possessed or knew about and upon
which they relied in bringing the suit.” (citing Cortec Indus., Inc. v. Sum Holding L.P.,
949 F.2d 42, 47-48 (2d Cir. 1991)); cf. Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004)
(finding that a transcript of a disciplinary hearing could not be considered where it was
neither cited in the complaint nor integral to the claims raised).
For ease of reference, the Court refers to the Union Defendants’ memorandum in
support of their motion to dismiss as “Union Br.” (Dkt. #51), to the Metro-North
Defendants’ memorandum in support of their motion to dismiss as “Metro-North Br.”
(Dkt. #60) and the supporting declaration as “Meinen Decl.” (Dkt. #59), to Plaintiff’s
joint opposition as “Pl. Opp.” (Dkt. #70), to the Union Defendants’ reply memorandum
as “Union Reply” (Dkt. #71), to the Metro-North Defendants’ reply memorandum as
“Metro-North Reply” (Dkt. #72), and to Plaintiff’s belated second opposition to the Union
Defendants’ motion as “Pl. Union Opp.” (Dkt. #78).

2

BACKGROUND
A.

Factual Background
1.

Plaintiff’s Injury

The following factual recitation draws principally from the SAC, and as
such reflects Plaintiff’s view of the events. Plaintiff began working as a coach
cleaner for Metro-North in March 2007. (SAC ¶ 11). On December 23, 2010,
at 11:00 a.m., Plaintiff injured his hand while cleaning the sink in a train car.
(Id. at ¶ 13). Because he was “bleeding very badly,” Plaintiff looked for a
supervisor at the train yard (id. at ¶¶ 14-15); when he could not find one, he
told a co-worker that he was injured and was taking a lunch break to seek
medical attention (id. at ¶ 16). Plaintiff asked this co-worker to tell the Yard
Foreman why he left work. (Id. at ¶ 17). Plaintiff visited a doctor, who sent
him to a hospital to receive stitches, and then returned to the train yard
around 2:00 p.m. to continue his shift. (Id. at ¶¶ 18-21). Around 4:00 p.m.,
Plaintiff informed the General Foreman that he had been injured at work and
had left to seek treatment. (Id. at ¶ 23). Based on Plaintiff’s statements, the
General Foreman issued an accident report. (Id.).
A few days later, on the morning of December 28, 2010, Plaintiff spoke to
Defendant David Plumb, Superintendent of Car Appearance, about his injury.
(SAC ¶ 28). By Plaintiff’s telling, he informed Plumb that he was injured while
working, and Plumb, contrary to Metro-North policy, sent him back to work
without being cleared by the Occupational Health Services Department. (Id.).
Later that day, Plaintiff was called back into Plumb’s office. (Id. at ¶ 30). When

3

he arrived, he met his union representative, Defendant Gerald Lorraine, in the
hallway; Lorraine told Plaintiff not to tell Plumb that he had been injured at
work “because they are finding ways to terminate people with less time on the
job,” and instead advised Plaintiff that he should “make up anything, say a dog
bite” to “keep [his] job.” (Id. at ¶¶ 30-32). Plaintiff then “did as he was
instructed” and Plumb told him he was “forgiven.” (Id. at ¶ 32).
2.

Plaintiff’s Disciplinary Hearing

Plumb’s absolution proved fleeting. The Collective Bargaining Agreement
(“CBA”) between Metro-North and the TWUA provides that a union employee
“shall not be suspended nor dismissed from service without a fair and impartial
trial[.]” (SAC, Ex. 28). Under the CBA, an employee is entitled to “prompt
advance notice”; he or she “may be accompanied by a union representative” at
the trial; and he or she is “permitted to question witnesses.” (Id.). A union
employee is also entitled to appeal the decision within Metro-North and,
thereafter, to an Impartial Arbitrator. (Id. at Ex. 29). The employee may
“submit proof” to the Impartial Arbitrator, whose decision is “final and
binding.” (Id.).
On January 4, 2011, Metro-North mailed Plaintiff a Notice of Action
stating that a hearing would be held on January 12, 2011, on charges that
Plaintiff had been absent from his assigned work location, falsified an injury
report, and committed conduct unbecoming of a Metro-North employee. (SAC
¶ 39). On January 10, 2011, however, Plaintiff injured his back in a car
accident, and his hearing was adjourned a dozen times throughout 2011 and

4

2012 due to Plaintiff’s ongoing medical treatment. (Id. at ¶¶ 40-46). On
November 29, 2012, Defendant Lorraine informed Plaintiff that Metro-North
would hold “the trial tomorrow[] whether Plaintiff was present or not.” (Id. at
¶ 49). And, indeed, on November 30, 2012, Metro-North held a disciplinary
hearing presided over by a Hearing Officer, Defendant James Walker. (Id. at
¶¶ 52-53). Plaintiff was then “under strong medication constantly,” and felt he
could not participate, but he appeared for the trial nonetheless. (Id. at ¶¶ 5051). Defendant Lorraine represented Plaintiff at the hearing. (Id. at ¶ 53).
At the hearing, Defendant Plumb testified that Plaintiff recanted his
injury report and submitted a written statement to his foreman that read, in
relevant part: “The truth is, I did not get hurt on the job. I was not thinking
right. I was in another state of mind thinking about other things going on in
my life. I deeply apologize for any trouble or paperwork that was done.”
(Hearing Tr. 16:20-24). Plaintiff did not call any witnesses, though he had the
opportunity to do so. (Id. at 19:12-19). Plaintiff testified at the hearing that his
December 2010 injury occurred “[o]ff the job” “through a dog bite”; that he
falsified an injury report “on impulse” due to the pressures of his personal life
at the time; and that he “just messed up.” (Id. at 21:22, 22:16-23:11).
Defendant Lorraine then made a brief closing statement in which he pleaded
for leniency toward Plaintiff. (Id. at 24:4-16).
Plaintiff complains of two deficiencies in the hearing procedures: First,
he challenges Defendant Walker’s admission of an out-of-court statement made
by a Metro-North employee. Specifically, during his direct examination by

5

Walker, Defendant Plumb was permitted to testify about a statement made to
him by another Metro-North employee, Cornell Williams, in the course of
Plumb’s investigation. (SAC ¶ 52; Hearing Tr. 15:7-14). Plumb testified that
Williams told him that Plaintiff informed “everybody in the locker room” that he
“got bit by a dog.” (SAC ¶ 52; Hearing Tr. 15:7-14). Defendant Lorraine
objected to the admission of this testimony without requiring Williams to
appear as a witness and submit to cross-examination. Walker denied
Lorraine’s request to cross-examine Williams, reasoning that the statement was
admissible as part of Plumb’s investigation file. (SAC ¶ 53; Hearing Tr. 15:1516:16). Second, Plaintiff challenges the fact that he was compelled to
participate in the hearing on that day. He claims to have suffered from “pain,
dizziness, light-headedness[,] and symptoms of unsteadiness” throughout the
hearing, but neither Lorraine nor Walker asked Plaintiff questions to assess his
ability to proceed with the trial. (Id. at ¶¶ 54-55). On these facts, Plaintiff
alleges that he was “deprived of a fair [d]isciplinary [h]earing.” (Id. at ¶ 73).
Plaintiff further alleges that, at the end of the hearing, Defendants
Walker, Lorraine, and Plumb, along with Defendants Andrew Hodes (Assistant
Director of Labor Relations at Metro-North) and Nancy Eischen (Arbitrator) left
the hearing room and had a conversation in the hallway. (SAC ¶ 57). 3 Plaintiff
claims that this conversation furthered a conspiracy between and among

3

The SAC alleges that Defendant Eischen was present, but the hearing transcript does
not reflect her attendance at the Metro-North disciplinary hearing, (see generally
Hearing Tr.), and the Court has no reason to believe that an arbitrator would be present
at an antecedent internal disciplinary hearing.

6

Defendants Eischen, Lorraine, Hodes, and Plumb to “unjustly and
unconstitutionally terminat[e] Plaintiff’s employment,” because “[i]t was
apparent that the Defendants had a [d]iscussion concerning the Plaintiff[]
without the Plaintiff being present.” (Id. at ¶¶ 75-77). 4
3.

Plaintiff’s Termination and Appeal

One week after the hearing, on December 5, 2012, Metro-North issued a
Notice of Discipline ordering Plaintiff’s immediate dismissal for (i) absence from
his assigned work location, (ii) falsification of an injury, and (iii) conduct
unbecoming of a Metro-North employee. (SAC, Ex. 15). On December 11,
2012, the TWUA filed an appeal of Plaintiff’s termination. (SAC ¶ 60). On
February 7, 2013, Plaintiff received a letter from Defendant Hodes informing
him that his appeal had been denied. (SAC, Ex. 22-23). 5 Hodes’s letter
explained that Metro-North had held a conference on January 11, 2013, at
which the TWUA argued that Plaintiff’s dismissal was “excessive” because
Plaintiff had merely “made a mistake when he falsely reported he was injured
while at work”; Hodes observed, however, that it was “undisputed” that Plaintiff
had “filed a false injury claim,” and that Metro-North had found “sufficient
testimony and evidence to sustain the charges.” (SAC ¶ 61; id. at Ex. 22-23).
On February 11, 2013, the TWUA appealed Metro-North’s decision to the

4

Plaintiff does not bring this claim against Defendant Walker, despite his allegation that
Walker was present for the offending conversation.

5

The Hodes Letter is a two-page letter — the first page is appended to the SAC as Exhibit
22 and the second page is appended as Exhibit 23.

7

Special Board of Adjustment. (SAC ¶ 62). On August 29, 2014, Defendant
Board Chair Nancy Eischen upheld Plaintiff’s dismissal. (Id. at ¶ 63).
4.

Discipline of Other Metro-North Employees

Plaintiff claims that Metro-North engaged in selective enforcement of its
policies as evidenced by its leniency toward two employees — Gibson Bratts
and Mario Suazo — who committed the same offense as Plaintiff. (SAC ¶ 72).
On October 16, 2008, Bratts was charged with conduct unbecoming of a
Metro-North employee for giving false statements regarding an injury; he was
suspended for 30 days. (SAC, Ex. 1). Bratt’s suspension was later decreased
to 10 days based on the “facts and circumstances surrounding []his case.” (Id.
at Ex. 2). Suazo had been disciplined numerous times during a thirteen-year
period for offenses including improper attire, “excessive absenteeism,” and, like
Plaintiff, conduct unbecoming of a Metro-North employee due to “fraudulent
representations to Metro-North of [his] medical condition.” (Id. at Ex. 8; see
also id. at Ex. 3-13). On the latter charge, Suazo was terminated, but his
termination was later reduced to a suspension “due to the particular facts and
circumstances surrounding” his case. (Id. at Ex. 8).
B.

Procedural History
1.

The Relevant Pleadings

Plaintiff initiated this action on November 16, 2015. (Dkt. #2). 6 On
February 22, 2016, then-Chief Judge Loretta A. Preska granted Plaintiff’s

6

Plaintiff’s initial Complaint included claims against John R. Feltz. At the September 22,
2016 conference with the Court, Plaintiff orally moved to dismiss Defendant Feltz from
this matter (see Dkt. #34), and Feltz was not named in the SAC.

8

application to proceed in forma pauperis. (Dkt. #4). A week later, on February
29, 2016, Judge Preska ordered Plaintiff to amend his Complaint to avoid
having his case dismissed for failure to state a claim. (Dkt. #5). Plaintiff filed
his First Amended Complaint on May 6, 2016 (Dkt. #8), and this case was
reassigned to the undersigned on July 1, 2016. On August 22, 2016, counsel
for the Union Defendants notified the Court of their intention to move to
dismiss Plaintiff’s Amended Complaint. (Dkt. #21).
Following a conference with the Court on September 22, 2016, Plaintiff
was granted leave to file the SAC, which he did on October 31, 2016. (Dkt.
#34, 45). The Union Defendants filed their motion to dismiss under Federal
Rule of Civil Procedure 12(b)(6) on November 7, 2016. (Dkt. #48). On
December 5, 2016, the Metro-North Defendants moved to dismiss under
Rule 12(b)(1) for lack of subject matter jurisdiction; under Rule 12(b)(2) for lack
of personal jurisdiction over Defendant Plumb; under Rule 12(b)(5) for
insufficient service of process on Plumb; and under Rule 12(b)(6) for failure to
state a claim. (Dkt. #58). Plaintiff filed a joint opposition to both motions on
February 1, 2017. (Dkt. #70). The Union Defendants and Metro-North
Defendants filed replies in support of their motions on February 10 and
February 14, 2017, respectively. (Dkt. #71-72).
Plaintiff filed an unauthorized sur-reply on February 21, 2017, and the
Court granted the Union Defendants’ motion to strike it. (Dkt. #73-75). Two
days later, Plaintiff recast this submission as a belated opposition to the Union
Defendants’ motion, notwithstanding Plaintiff’s earlier filing of a joint

9

opposition. (Dkt. #77). In light of Plaintiff’s pro se status, the Court accepted
this filing and considered it in reviewing the motions to dismiss. (Dkt. #78).
Also on February 23, 2017, Plaintiff filed an addendum to his joint opposition,
stating that he “inadvertently forgot to attach” additional “Marshal[] forms as
exhibits.” (Dkt. #76).
2.

Service of the Pleadings

It does not appear from the docket that Plaintiff undertook any efforts to
serve his original Complaint. Plaintiff effected service of his Amended
Complaint on the TWUA, Lorraine, Metro-North, Hodes, and Walker. (Dkt. #16,
19, 20, 25, 37, 43). After an unsuccessful first attempt to serve Defendant
Plumb (Dkt. #15), Plaintiff requested an extension of time to effect service (Dkt.
#18). The Court granted a brief extension and ordered counsel for Metro-North
to provide Plumb’s last-known address. (Dkt. #22, 27). A new summons was
issued on August 29, 2016, and was returned executed on October 20, 2016.
(Dkt. #53).
A summons for Defendant Eischen was issued on July 6, 2016, and was
returned unexecuted on August 16, 2016. (Dkt. #26). On September 6, 2016,
Plaintiff requested an extension of time to serve Eischen (Dkt. #30), and the
Court granted a 45-day extension (Dkt. #31). A second summons to Eischen
was issued on October 3, 2016, and was returned unexecuted on December 1,
2016. (Dkt. #69). Following this second attempt, Plaintiff asked the Court to
order counsel for Metro-North to provide Eischen’s current address. (Dkt. #62).
After receiving Metro-North’s letter stating that it was not Eischen’s employer

10

and did not have her address (Dkt. # 63), the Court denied Plaintiff’s request
(Dkt. #64). It does not appear that Eischen was ever served with the SAC; no
one has filed a notice of appearance on her behalf, and she has not joined the
instant motions to dismiss.
Defendant Chidester was named, for the first time, in Plaintiff’s SAC.
Plaintiff does not appear to have served or attempted to serve Chidester, and
Chidester has not joined these motions to dismiss.
DISCUSSION
Plaintiff’s SAC raises a scattered set of grievances, and the Court has
endeavored to construe them with the liberality the law requires. Putting aside
certain of the terminology Plaintiff uses to describe his claims, the Court
construes the facts alleged in the SAC to allege the following claims:
(i)

(ii)

Conspiracy to interfere with Plaintiff’s civil rights, in
violation of 42 U.S.C. § 1985(3), against Hodes,
Lorraine, and Plumb;

(iii)

7

Procedural due process violations warranting vacatur of
the arbitral award under the Railway Labor Act, 45
U.S.C. § 153 First (q), against Metro-North and Walker; 7

Breach of the duty of fair representation, against the
TWUA and Lorraine;

The Court notes that Plaintiff does not explicitly invoke § 153 First (q) in his SAC. The
Court is mindful, however, that pro se complaints must be liberally construed to raise
the strongest arguments they suggest. Lopez v. Annucci, 690 F. App’x. 56, 58 (2d Cir.
2017) (summary order) (citing Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007)).
Plaintiff claims that certain procedural deficiencies in his disciplinary hearing caused
his wrongful termination, and he seeks an award of four years’ back-pay and
reinstatement. (SAC ¶¶ 88, 90). In effect, he seeks to set aside the arbitral award
entered by the Special Board of Adjustment. Accordingly, and for the reasons stated
below, the Court analyzes Plaintiff’s due process claim as a basis for setting aside the
award under § 153 First (q) of the Railway Labor Act.

11

(iv)

Selective enforcement, in violation of the Equal
Protection Clause of the Fourteenth Amendment,
against Metro-North; and

(v)

Cruel and unusual punishment, in violation of the
Eighth Amendment, against Metro-North. 8

In the remainder of this Opinion, the Court will consider first the non-meritsbased arguments brought by the Metro-North Defendants under Rule 12(b)(1)
of the Federal Rules of Civil Procedure, and by Defendant Plumb under
Rules 12(b)(2) and 12(b)(5) of the same. Thereafter, it will consider the Union
Defendants’ and Metro-North Defendants’ various claims for dismissal under
Rule 12(b)(6).
A.

The Railway Labor Act Arguably Deprives the Court of Subject
Matter Jurisdiction Over Plaintiff’s Due Process Claim
1.

Motions to Dismiss Under Fed. R. Civ. P. 12(b)(1)

Courts may dismiss an otherwise sufficient complaint for a lack of
subject matter jurisdiction “when the district court lacks the statutory or
constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d
110, 113 (2d Cir. 2000). In evaluating a motion under Rule 12(b)(1), a court
must “accept as true all material factual allegations in the complaint.”
Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998). Even
so, a court may not premise jurisdiction on favorable inferences drawn from
the pleadings. Id. Instead, a plaintiff must show by a preponderance of the
evidence that subject matter jurisdiction lies over the dispute. Makarova, 201

8

The Court does not consider claims brought against Defendants Eischen or Chidester,
as they have not been served and have not joined these motions.

12

F.3d at 113. When deciding a motion under Rule 12(b)(1), a court may rely on
evidence outside the complaint. Cortlandt St. Recovery Corp. v. Hellas
Telecomm., S.A.R.L., 790 F.3d 411, 417 (2d Cir. 2015).
2.

The Railway Labor Act

The Railway Labor Act, 45 U.S.C. §§ 151-165, 181-188 (the “RLA”), was
enacted to promote “the prompt and orderly settlement of labor disputes
between railway carriers and their employees.” United Transp. Union v. Nat’l
R.R. Passenger Corp., 588 F.3d 805, 809 (2d Cir. 2009). Defendant MetroNorth is a “carrier” as defined under 45 U.S.C. § 151 First, and Plaintiff is an
“employee” under § 151 Fifth. 9
Disputes regarding employee discharge are considered “minor” disputes
under the RLA. United Transp. Union, 588 F.3d at 809-10. The RLA provides
that minor disputes will be resolved internally at the carrier and, if those efforts
prove unsuccessful, through binding arbitration before a Special Board of
Adjustment, which is created by agreement between the carrier and the union.
45 U.S.C. § 153 First (i) & Second; see also Coppinger v. Metro-North Commuter
R.R., 861 F.2d 33, 36 (2d Cir. 1988).
The CBA between Metro-North and the TWUA sets forth procedures for
employee discipline and discharge, including procedures to appeal to an
Impartial Arbitrator. (SAC, Ex. 28-29). The RLA provides for very limited
judicial review of arbitral awards — a court may set aside an award only if it

9

The RLA was drafted in 1926 and its structure is an idiosyncratic vestige of an earlier
era. Instead of labeling subsections with numerals, Congress used the designations
“First,” “Second,” and so forth.

13

finds the Board did not comply with the RLA, considered matters beyond its
jurisdiction, or committed fraud or corruption. 45 U.S.C. § 153 First (q).
3.

Discussion

The Metro-North Defendants argue that Plaintiff attacks the procedures
by which his disciplinary hearing was conducted, and that such attacks are
not among the limited bases for setting aside an arbitral award under the RLA.
(Metro-North Br. 7-8). Plaintiff responds that the RLA does not foreclose
judicial review of constitutional claims. (Pl. Opp. 2). To a degree, Plaintiff is
correct: The Second Circuit has held that the RLA does not foreclose judicial
review of a rail carrier employee’s constitutional attack on arbitration
proceedings held pursuant to the Act. Shafii v. PLC British Airways, 22 F.3d
59, 64 (2d Cir. 1994) (“We affirm the rule in this Circuit that an order of the
[National Railroad Adjustment Board] or its counterparts is reviewable upon a
claim that a participant was denied due process by the Board.”).
Significantly, however, the due process violations of which Plaintiff
complains — that Defendant Walker held a hearing while Plaintiff was taking
painkillers and refused to call a witness to submit to cross-examination —
occurred in the underlying disciplinary hearing at Metro-North, and not in the
arbitration before the Special Board of Adjustment. Even though this Circuit
recognizes that due process violations may warrant vacatur of an arbitral
award under § 153 First (q), it is not at all clear that judicial review extends to
due process claims that attack the pre-arbitration internal procedures at the
carrier that may be specified in a particular collective bargaining agreement.

14

Compare Martino v. Metro-North Commuter R.R. Co., 582 F. App’x 27, 29 (2d Cir.
2014) (summary order) (exercising jurisdiction over a due process challenge to
an arbitration), with Dominguez v. Miller, No. 12 Civ. 231 (CBA), 2013 WL
703193, at *8 (E.D.N.Y. Jan. 18, 2013) (declining jurisdiction over due process
claims regarding pre-arbitration proceedings); Christiani v. Metro-North
Commuter R.R. Co., No. 92 Civ. 4494 (JFK), 1994 WL 74881, at *5 (S.D.N.Y.
March 7, 1994) (same); D’Elia v. N.Y., New Haven & Hartford R.R., 338 F.2d
701, 702 (2d Cir. 1964) (holding that carrier employee was entitled to an
impartial proceeding before the Board, but not during an internal proceeding
with the carrier).
The Court is disinclined to enter uncharted jurisdictional waters,
particularly since, as discussed later in this Opinion, Plaintiff’s due process
claim fails on the merits. While the Court believes the Metro-North Defendants
have the better of the arguments, it will deny their motion to dismiss Plaintiff’s
due process claim under Rule 12(b)(1), and resolve it under Rule 12(b)(6). 10

10

To the extent that the Metro North Defendants invite the Court to dismiss Plaintiff’s
other claims under Rule 12(b)(1), the Court declines. Plaintiff’s conspiracy, duty of fair
representation, and Eighth Amendment claims do not amount to an attack on the
procedures afforded under the RLA, and the Court sees no basis for dismissing these
claims as resolved by the Special Board of Adjustment.
Plaintiff’s equal protection claim presents a closer call. His selective enforcement
argument was submitted to Defendant Eischen in the arbitration before the Special
Board of Adjustment, and she considered it in her arbitral award upholding Plaintiff’s
termination. (Meinen Decl., Ex. J). The Court finds that the Second Circuit’s reasoning
in Shafii permits the exercise of jurisdiction over this claim. Even though the Shafii
Court did not make clear its intention to examine the process afforded a rail carrier
employee in an internal disciplinary hearing, it did make plain this Circuit’s view that
the RLA was not meant to “foreclose judicial review of constitutional claims.” Shafii, 22
F.3d at 64. Because Plaintiff’s equal protection claim raises a constitutional attack to
his termination, the Court finds that it can exercise jurisdiction over this claim.

15

B.

The Court Lacks Personal Jurisdiction Over Defendant Plumb
The Court next considers Defendant Plumb’s motion to dismiss for a lack

of personal jurisdiction under Rule 12(b)(2) and, as appropriate, for improper
service of process under Rule 12(b)(5).
1.

Motions to Dismiss Under Federal Rule of Civil Procedure
12(b)(2)

“On a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction,
the plaintiff bears the burden of showing that the court has jurisdiction over
the defendant.” Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 566
(2d Cir. 1996). To survive a motion to dismiss, a plaintiff need only provide
“legally sufficient allegations of jurisdiction.” Id. A plaintiff makes such a
showing through “an averment of facts that, if credited by the ultimate trier of
fact, would suffice to establish jurisdiction over the defendant.” Id. at 567
(quoting Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir.
1990)). Plaintiff’s jurisdictional allegations “are construed in the light most
favorable to the plaintiff and doubts are resolved in the plaintiff’s favor[.]”
Elsevier, Inc. v. Grossman, 77 F. Supp. 3d 331, 341 (S.D.N.Y. 2015) (quoting
A.I. Trade Fin., Inc. v. Petra Bank, 989 F.2d 76, 79-80 (2d Cir. 1993)). Where a
court does not hold an evidentiary hearing on the jurisdictional question, it
may, nevertheless, consider matters outside the pleadings. Dorchester Fin.
Sec., Inc. v. Banco BRJ, S.A., 722 F.3d 81, 86 (2d Cir. 2013).
To determine whether the exercise of personal jurisdiction is proper, a
court conducts a two-part inquiry: First, a court looks at whether there is a
basis for personal jurisdiction under the laws of the forum state. Licci ex rel.
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Licci v. Lebanese Canadian Bank, SAL, 732 F.3d 161, 168 (2d Cir. 2013). Here,
the relevant inquiry centers on New York’s long-arm statute, which provides, in
relevant part, that “a court may exercise personal jurisdiction over any nondomiciliary … who … commits a tortious act within the state.” N.Y. C.P.L.R.
§ 302(a)(2); see Manuel v. City of Joliet, Ill., 137 S. Ct. 911, 916 (2017) (noting
that “[s]ection 1983 creates a species of tort liability”) (citation omitted); Scott v.
Nat’l Ass’n for Stock Car Racing, Inc., No. 06 Civ. 6029 (DAB), 2008 WL 217049,
at *6 (S.D.N.Y. Jan. 17, 2008) (finding that claims under § 1985 are torts for
personal jurisdiction analysis). Notably, a plaintiff “need not actually prove
that defendant committed a tort”; it is enough that he state a “colorable cause
of action.” Gucci Am., Inc. v. Frontline Processing Corp., 721 F. Supp. 2d 228,
241 (S.D.N.Y. 2010) (internal quotation marks omitted).
Second, a court must examine whether the exercise of personal
jurisdiction comports with due process. Licci, 732 F.3d at 168. “Due process
considerations require that the defendant have certain minimum contacts with
the forum state such that the maintenance of the suit does not offend
traditional notions of fair play and substantial justice.” Id. at 169 (internal
quotation marks omitted). Put differently, due process is not violated when a
defendant is “haled into court in a forum State based on his own affiliation
with the state[.]” Walden v. Fiore, 134 S. Ct. 1115, 1123 (2014). In deciding
whether the exercise of jurisdiction is reasonable, a court considers “[i] the
burden that the exercise of jurisdiction will impose on the defendant; [ii] the
interests of the forum state in adjudicating the case; [iii] the plaintiff’s interest

17

in obtaining convenient and effective relief; [iv] the interstate judicial system’s
interest in obtaining the most efficient resolution of the controversy; and [v] the
shared interest of the states in furthering substantive social policies.”
Robertson-Ceco, 84 F.3d at 568 (quoting Asahi Metal Indus. Co., Ltd. v. Superior
Court of Cal., Solano Cty., 480 U.S. 102, 113-14 (1987)). While due process is
distinct from a statutory basis for personal jurisdiction, the Second Circuit has
noted that it would be the “rare” case where personal jurisdiction was proper
under New York’s long-arm statute but not under a due process analysis.
Eades v. Kennedy, PC Law Offices, 799 F.3d 161, 168 (2d Cir. 2015) (internal
quotation marks omitted).
2.

Discussion

As just noted, New York’s long-arm statute permits the exercise of
personal jurisdiction over a defendant who commits a tort in the state. N.Y.
C.P.L.R. § 302(a)(2). Defendant Plumb concedes as much, but argues that
“Plaintiff … fails to allege that David Plumb engaged in such a tortious act for
purposes of satisfying the long-arm statute.” (Metro-North Br. 17). It matters
not at this stage whether Plumb, in fact, engaged in a conspiracy to commit a
tort; what matters is whether Plaintiff has met the minimal burden of
establishing a prima facie case of conspiracy sufficient to confer jurisdiction
under the long-arm statute. See LaChapelle v. Torres, 1 F. Supp. 3d 163,
169-70 (S.D.N.Y. 2014) (“To prove personal jurisdiction under a theory of
conspiracy, a plaintiff must make a prima facie showing of a conspiracy and
allege specific facts warranting the inference that the defendants were members

18

of the conspiracy.” (internal quotation marks omitted)). To make such a
showing, Plaintiff must allege a primary tort — here, a deprivation of his civil
rights under 42 U.S.C. § 1983 — as well as (i) a corrupt agreement; (ii) an overt
act in furtherance of the agreement; (iii) intentional participation in the plan or
purpose; and (iv) resulting injury. Id. at 170.
This Plaintiff cannot do. The Court views the allegations in the light
most favorable to the Plaintiff. Elsevier, 77 F. Supp. 3d at 341. Plaintiff alleges
that Defendant Plumb participated in a conspiracy to deprive Plaintiff of his
civil rights in violation of 42 U.S.C. § 1985(3). (SAC ¶ 77). Plaintiff alleges that
an overt act in furtherance of this conspiracy took place during his disciplinary
hearing, which was held in New York. (Id. at ¶ 57). While he alleges that the
co-conspirators had a discussion outside his presence at his disciplinary
hearing, he pleads no facts showing a corrupt agreement or Defendant Plumb’s
intentional participation in a conspiratorial plan.
The Court is mindful of the special solicitude owed a pro se party, e.g.,
Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006), and observes that Plaintiff is
not in a position, prior to discovery, to know more about this conversation.
But Plaintiff has not even raised an inference that discovery would yield
evidence of a conspiracy; his bald allegation that a conspiracy existed —
without more — is not enough. Pension Benefit Guar. Corp. ex rel. St. Vincent
Catholic Med. Ctrs. Ret. Plan v. Morgan Stanley Inv. Mgmt. Inc., 712 F.3d 705,
719 (2d Cir. 2013) (“Rule 8 … does not unlock the doors of discovery for a

19

plaintiff armed with nothing more than conclusions.” (quoting Ashcroft v. Iqbal,
556 U.S. 662, 678-79 (2009))).
Even on a liberal reading of the pleadings, the Court strains to find a
prima facie claim of conspiracy sufficient to confer personal jurisdiction over
Defendant Plumb under New York’s long-arm statute. In the absence of a
statutory basis for personal jurisdiction, the Court will not opine on whether
personal jurisdiction in this case comports with due process. Defendant
Plumb’s motion to dismiss the claim against him under Rule 12(b)(2) is
granted. Further, because the Court concludes that it lacks personal
jurisdiction over Defendant Plumb, it declines to consider Plumb’s motion for
improper service of process under Rule 12(b)(5).
C.

The Second Amended Complaint Fails to State a Plausible Claim for
Relief
Plaintiff’s pleading deficiencies extend to the merits of his claims. As

detailed in the remainder of this section, each of Plaintiff’s claims fails to state
a claim and must be dismissed.
1.

Motions to Dismiss Under Federal Rule of Civil Procedure
12(b)(6)

To survive a motion to dismiss for failure to state a claim under Federal
Rule of Civil Procedure 12(b)(6), “a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face,’”
Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)), such that a court could “draw the reasonable inference that the
defendant is liable for the misconduct alleged,” Tongue v. Sanofi, 816 F.3d 199,

20

209 (2d Cir. 2016) (quoting Iqbal, 556 U.S. at 678). “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.” Iqbal, 556
U.S. at 678 (internal quotation marks omitted).
Importantly, courts must “draw all reasonable inferences in Plaintiff’s
favor” and “assume all ‘well-pleaded factual allegations’ to be true.” Faber v.
Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011) (internal quotation marks
omitted). A pro se complaint must be “liberally construed … however inartfully
pleaded.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). And a pro se litigant’s
arguments opposing the motion to dismiss must be interpreted to “raise the
strongest arguments they suggest.” Wright v. Comm’r of Internal Review, 381
F.3d 41, 44 (2d Cir. 2004). Finally, where defendants raise an affirmative
defense that claims are time-barred, “[s]uch a motion is properly treated as a
Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief
can be granted, rather than a Rule 12(b)(1) motion to dismiss for lack of
jurisdiction over the subject matter.” Ghartey v. St. John’s Queens Hosp., 869
F.2d 160, 162 (2d Cir. 1989); see also Gonzalez v. Bronx Cty. Hall of Justice
Court Officer Mark Hirschman Shield 7421, No. 15 Civ. 810 (GHW), 2016 WL
354913, at *3 (S.D.N.Y. Jan. 28, 2016) (finding that compliance with the
statute of limitations for claims brought under § 1983 is not a jurisdictional
bar); Arnold v. 1199 SEIU, 09 Civ. 5576 (DLC), 2009 WL 4823906, at *5
(S.D.N.Y. Dec. 15, 2009) (same, as to claims for a breach of the duty of fair
representation).

21

2.

Certain of Plaintiff’s Claims Are Untimely

The Court examines the timeliness of Plaintiff’s claims for: (i) violations of
his right to procedural due process; (ii) violation of his equal protection rights
under a theory of selective enforcement; (iii) conspiracy to violate his civil
rights; and (iv) breach of the duty of fair representation as a basis for dismissal
under Rule 12(b)(6). 11
a.

Plaintiff’s Claims for Due Process, Equal Protection
Violations, and Conspiracy Under 42 U.S.C. § 1985(3)

Plaintiff’s claims of due process and equal protection violations both arise
under 42 U.S.C. § 1983 and are subject to a three-year statute of limitations.
Owens v. Okure, 488 U.S. 235, 251 (1989); see also Friedl v. City of N.Y., 210
F.3d 79, 84 (2d Cir. 2000) (finding a procedural due process claim under
§ 1983); LaTrieste Rest. & Cabaret Inc. v. Vill. of Port Chester, 40 F.3d 587, 588
(2d Cir. 1994) (finding a selective enforcement claim under § 1983). While New
York law provides the three-year statute of limitations, federal law governs
when the claim accrues. Eagleston v. Guido, 41 F.3d 865, 871 (2d Cir. 1994).
A claim under § 1983 accrues “when the plaintiff knows or has reason to know
of the harm.” Id. (internal quotation marks omitted).
Plaintiff claims that he was deprived of adequate due process during his
disciplinary hearing at Metro-North on November 30, 2012. He was terminated
on December 5, 2012. Though Plaintiff certainly knew of the offending conduct

11

Plaintiff also brings a claim for cruel and unusual punishment under the Eighth
Amendment, but given the obvious defects in the merits of this claim, the Court does
not opine on its timeliness here.

22

during his hearing on November 30, his claim for a violation of due process did
not accrue until he “knew or had reason to know that []he actually would suffer
deprivation of [his] protected property interest. Palkovic v. Johnson, 150 F.
App’x 35, 37 (2d Cir. 2005) (summary order) (citing Veal v. Geraci, 23 F.3d 722,
724 (2d Cir. 1994) (rejecting argument that due process claim accrued during
hearing, and finding it did not accrue until the plaintiff received an adverse
decision). Accordingly, Plaintiff’s due process claim accrued at the time he was
terminated on December 5, 2012.
Plaintiff’s claim of selective enforcement in violation of the Equal
Protection Clause similarly flows from his December 5, 2012 termination.
Plaintiff appealed his termination within Metro-North, and then in arbitration,
and the arbitrator’s award confirming his dismissal was issued on August 29,
2014. (Id. at Ex. 25). Plaintiff asks the Court to find that his equal protection
claim did not accrue until this later date in 2014. (Pl. Opp. 4). However, a
claim for wrongful discharge accrues from the time the employee had notice of
his or her termination, and that the limitations period is not tolled by a
pending grievance proceeding. Wormer v. City of Rensselaer, 293 F. App’x 783,
784 (2d Cir. 2008) (summary order) (finding plaintiff’s claim time-barred
because he did not allege an unconstitutional act after the date he learned of
his termination); Washington v. Cty. of Rockland, 373 F.3d 310, 317-20 (2d Cir.
2004) (rejecting argument that limitations period was tolled pending outcome of
administrative proceeding); see generally Delaware State College v. Ricks, 449
U.S. 250, 261 (1980) (holding that the “pendency of a grievance, or some other

23

method of collateral review of an employment decision, does not toll the
running of the limitations period”). Plaintiff’s equal protection claim thus
accrued on December 5, 2012.
Plaintiff’s conspiracy claim under 42 U.S.C. § 1985(3) is likewise subject
to a three-year statute of limitations. Paige v. Police Dep’t of City of
Schenectady, 264 F.3d 197, 199 n.2 (2d Cir. 2001). The statute of limitations
for a claim under § 1985(3) begins to run “once the plaintiff knows of the injury
on which the claim is based.” Jaghory v. N.Y. State Dep’t of Educ., 131 F.3d
326, 331 (2d Cir. 1997). Plaintiff alleges that Defendants Hodes, Lorraine,
Plumb, and Eischen engaged in an act in furtherance of their conspiracy at his
disciplinary hearing on November 30, 2012; Plaintiff alleges no other facts
supporting his claim under § 1985(3). Plaintiff claims his termination effected
a civil rights violation; thus, Plaintiff knew of the injury on which his claim is
based on the date he was terminated, December 5, 2012. (See SAC, Ex. 15).
Simple arithmetic confirms that the statute of limitations expired on
Plaintiff’s due process, equal protection, and conspiracy claims on December 5,
2015. Plaintiff filed his Complaint and a request to proceed in forma pauperis
on November 16, 2015, fewer than three weeks before the limitations period
expired. (Dkt. #1-2). But Plaintiff filed the SAC, the operative pleading in this
case, on October 31, 2016. (Dkt. #45). The Metro-North Defendants argue
that Plaintiff’s SAC cannot relate back to the initial Complaint under
Rule 15(c)(1)(C) — and thus that his claims are untimely — because Plaintiff
never served that Complaint on any Defendant, and because the Metro-North

24

Defendants were consequently not on notice of his claim within the limitations
period. (Metro-North Br. 10). And, in point of fact, the docket does not reflect
any effort to serve the Complaint. That said, it is not clear from the record
whether good cause exists to justify Plaintiff’s failure to serve the Complaint
within the time required under Rule 4(m).
The Court is troubled that Plaintiff’s Complaint appears to have
remained in the pro se screening process pursuant to 28 U.S.C. § 1915 for
longer than is customary — Plaintiff did not receive an Order to Amend until
February 29, 2016 (Dkt. #5), over three months after he filed his claim and
after the time to serve the Complaint under Rule 4(m) had elapsed. For
reasons similarly lost to history, Plaintiff’s application to proceed in forma
pauperis was also pending for an unusually long time and was not granted
until February 22, 2016. (Dkt. #4). Plaintiff may have been under the
mistaken belief that he could rely on the United States Marshals Service to
effect service for him, but this right did not attach until his application to
proceed in forma pauperis was granted. 28 U.S.C. § 1915(d); Romandette v.
Weetabix Co., Inc., 807 F.2d 309, 311 (2d Cir. 1986). And even if Plaintiff’s
application had been granted, Plaintiff would have been obligated to confirm
that the Marshals Service effected service and to seek an extension of time if it
appeared the Marshals would not timely do so. Meilleur v. Strong, 682 F.3d 56,
63 (2d Cir. 2012) (holding that plaintiff proceeding in forma pauperis was
obligated to monitor the Marshals’ efforts to effect service and to request an

25

extension if the Marshals could not timely effect service). It is not apparent
from the docket that Plaintiff ever made any such request to the Marshals.
Before the Court granted Plaintiff’s request to proceed in forma pauperis¸
it was Plaintiff’s responsibility to serve the Complaint or seek an extension of
the time to effect service. While Plaintiff may have lacked the financial
resources to hire a professional process server, he was not incarcerated or
similarly incapable of finding someone to serve the Complaint. He was also
able to request the Marshals’ assistance prior to being granted in forma
pauperis status. See Fed. R. Civ. P. 4(c)(3) (“At the plaintiff’s request, the court
may order that service be made by a United States marshal[.]” (emphasis
added)). The Court has labored to find good cause for Plaintiff’s failure to serve
the Complaint, but in light of the record and this Circuit’s precedent in
Meilleur, the Court cannot make such a finding.
On these facts, it appears that Plaintiff’s claims for violations of his right
to procedural due process, selective enforcement in violation of the Equal
Protection Clause, and conspiracy under § 1985(3) are time-barred. However,
these claims also fail as a matter of law; accordingly, the Court need not make
a conclusive finding about the timeliness of Plaintiff’s claims, but will instead
resolve them on the merits later in this Opinion.
b.

Plaintiff’s Claim for Breach of the Duty of Fair
Representation

The timeliness of Plaintiff’s claim for breach of the duty of fair
representation presents a much clearer question. As the Union Defendants
correctly note, this claim is subject to a six-month statute of limitations.
26

(Union Br. 13 (collecting cases)). See also Kalyanaram v. Am. Ass’n of Univ.
Professors at N.Y. Inst. of Tech., Inc., 742 F.3d 42, 46 (2d Cir. 2014) (finding
that a six-month statute of limitations applies to an employee’s claim against a
union for breach of duty of fair representation). A claim for breach of the duty
of fair representation accrues when the employee “knew or reasonably should
have known that such a breach … had occurred, even if some possibility of
nonjudicial enforcement remained.” Id. The Second Circuit in Kalyanaram
found that when an employee bases his or her claim on the union’s conduct
during an arbitration, the employee is not charged with knowledge of the
breach and the claim does not accrue until “the date of the award.” Id.
(quoting Santos v. Dist. Council of N.Y.C. & Vicinity of United Bhd. of Carpenters
& Joiners of Am., AFL-CIO, 619 F.2d 963, 969 (2d Cir. 1980)).
However, it is worth noting that the plaintiff in Kalyanaram did not have
an internal hearing before proceeding to arbitration. Kalyanaram, 742 F.3d at
44-45. The analogous proceeding in this case is, arguably, Plaintiff’s
disciplinary hearing at Metro-North. By this reasoning, Plaintiff’s claim
accrued at the time he received his termination notice on December 5, 2012,
and the statute of limitations expired on June 5, 2013. But even if Plaintiff’s
claim did not accrue until he received the arbitral award on August 29, 2014,
his claim was time-barred long before the time he filed the initial Complaint in
this matter on November 16, 2015. Moreover, Plaintiff’s claim that Defendant
Lorraine breached the duty of fair representation by “encouraging, suggesting,
and persuading Plaintiff to retract an otherwise true statement regarding an on

27

the job injury” (SAC ¶ 79), is plainly time-barred. This claim is based on events
that occurred on December 28, 2010, and it became time-barred more than
four years before Plaintiff filed his Complaint. Accordingly, the Court finds that
Plaintiff’s claim against the Union Defendants for breach of the duty of fair
representation is time-barred.
2.

The Second Amended Complaint Fails on the Merits
a.

Plaintiff’s Due Process Claim

Plaintiff’s due process claim, which the Metro-North Defendants seek to
dismiss on jurisdictional grounds, fails on its merits. Even assuming that
Plaintiff derived a property interest from the CBA’s prohibition on termination
without a hearing, see Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir.
1991) (holding that a collective bargaining agreement gave rise to a property
interest in continued employment), the logical follow-up question would be,
“[W]hat process is due[?]”, Ciambrello v. Cty. of Nassau, 292 F.3d 307, 319 (2d
Cir. 2002) (internal quotation marks omitted). The Metro-North Defendants
argue, and the law in this Circuit is clear, that the pre- and post-deprivation
procedures set forth in a collective bargaining agreement are, typically,
sufficient to provide due process. (Metro-North Reply 5 (citing Harhay v. Town
of Ellington Bd. of Educ., 323 F.3d 206, 213 (2d Cir. 2003))). See also Cleveland
Bd. of Educ. v. Loudermill, 470 U.S. 532, 544-45 (1985) (holding that a pretermination hearing “need not be elaborate”); Adams v. Suozzi, 517 F.3d 124,
128 (2d Cir. 2008) (“We have held on several occasions that there is no due
process violation where, as here, pre-deprivation notice is provided and the

28

deprivation at issue can be fully remedied through the grievance procedures
provided for in a collective bargaining agreement.”).
Under the CBA between Metro-North and the TWUA, no employee may be
suspended or dismissed without “a fair and impartial trial” at which he or she
is entitled to call witnesses. (SAC, Ex. 28). And, in fact, Plaintiff received predeprivation notice and a hearing. (SAC ¶ 39). The hearing was postponed a
dozen times over nearly two years to accommodate Plaintiff’s medical issues.
(Id. at ¶¶ 42-43, 46). Both Defendant Lorraine and Plaintiff himself informed
Defendant Walker that Plaintiff had been injured and was taking medication.
(Hearing Tr. 3:11-16, 7:15-16). Plaintiff had the ability to “produce or have
produced any pertinent evidence” and the right to call witnesses — such as
Cornell Williams — to testify; he simply chose not to. (Id. at 19:12-19). The
Court cannot find, on these facts, that the SAC states a due process claim
upon which relief could be granted. 12
b.

Plaintiff’s Conspiracy Claim

As discussed above, Plaintiff’s conspiracy claim appears to be timebarred. The Court considers the merits nonetheless, and finds that Plaintiff

12

In his opposition brief, Plaintiff presents evidence that Defendant Walker presided over
a disciplinary hearing held on January 2, 2008, on charges that Plaintiff had failed to
clean train car windows. (Pl. Opp. 6). He alleges that Walker disregarded the testimony
of a Metro-North employee who observed Plaintiff cleaning the windows in question and
found him “guilty.” (Id.). To the extent that Plaintiff means to imply that Walker
harbored a bias against him, this evidence does not change the Court’s conclusion.
Plaintiff has not put forth sufficient evidence to support a claim that Walker’s prior
rulings amounted to an impermissible bias sufficient to deprive him of due process.
See Withrow v. Larkin, 421 U.S. 35, 48-49 (1975) (recognizing that decisionmakers are
repeat players and that a hearing examiner’s repeat involvement with a case or parties
is not, on its own, unconstitutional).

29

also fails to state a claim on which relief can be granted. Plaintiff alleges that
Defendants Hodes, Lorraine, Plumb, and Eischen engaged in a conspiracy to
deprive him of his civil rights in violation of 42 U.S.C. § 1985(3). 13 In
particular, he claims that these Defendants, plus Defendant Walker, left the
room at the end of his disciplinary hearing and had a conversation in the
hallway during which “[i]t was apparent that the Defendants had a [d]iscussion
concerning [] Plaintiff, without [] Plaintiff being present.” (SAC ¶ 76; see also
id. at ¶ 57). 14 To state a claim under § 1985(3), however, Plaintiff must show
“[i] a conspiracy; [ii] for the purpose of depriving, either directly or indirectly,
any person or class of persons of equal protection of the laws; [iii] an act in
furtherance of the conspiracy; [iv] whereby a person is deprived of any right of
a citizen of the United States.” Brown v. City of Oneonta, N.Y., 221 F.3d 329,
341 (2d Cir. 2000) (internal quotation marks omitted). Put somewhat
differently, Plaintiff must plead “some factual basis supporting a meeting of the
minds, such that defendants entered into an agreement, express or tacit, to

13

Even though Plaintiff failed to plead this claim against Defendant Walker, the Court
finds that this claim would be dismissed against Walker had it been properly raised
against him.
Plaintiff also alleges that this conspiracy violated 18 U.S.C. §§ 241-242. These are
criminal statutes that do not provide any private right of action, and thus Plaintiff is not
entitled to relief on these claims. See Storm-Eggink v. Gottfried, 409 F. App’x 426, 427
(2d Cir. 2011) (summary order) (citing Robinson v. Overseas Military Sales Corp., 21
F.3d 502, 511 (2d Cir. 1994)); see also Conn. Action Now, Inc. v. Roberts Plating Co., Inc.,
457 F.2d 81, 86-87 (2d Cir. 1972) (“It is a truism … that in our federal system crimes
are always prosecuted by the Federal Government[.]”).

14

Plaintiff attempts to cast this claim as a violation of a defendant’s right to be present for
all stages of trial under the Confrontation Clause of the Sixth Amendment. (Pl. Union
Opp. 2). Unfortunately (or fortunately, as the case may be) for Plaintiff, this right only
attaches to criminal defendants, and does not apply to his disciplinary hearing with
Metro-North. See Illinois v. Allen, 397 U.S. 337, 338 (1970). In short, Plaintiff is not
entitled to any relief under the Confrontation Clause.

30

achieve the unlawful end.” Webb v. Goord, 340 F.3d 105, 110 (2d Cir. 2003)
(internal quotation marks omitted). Finally, Plaintiff must show that the
conspiracy was motivated by “invidious discriminatory animus.” Dolan v.
Connolly, 794 F.3d 290, 296 (2d Cir. 2015) (internal quotation marks omitted).
Plaintiff has failed to meet even the minimal burden imposed at the
motion to dismiss stage. Plaintiff’s conspiracy allegation is premised on two
facts: (i) Defendants Hodes, Lorraine, Plumb, Walker, and Eischen had a
conversation about Plaintiff in the hallway at the end of his disciplinary
hearing; (ii) Plaintiff was terminated after the hearing. Even taking as true that
the conversation occurred, that it was about Plaintiff, and that he was
subsequently terminated, the Court cannot find that Plaintiff has “nudged [his]
claim[] across the line from conceivable to plausible.” Twombly, 550 U.S. at
570. The Union Defendants argue that “Lorraine could just as well have been
trying to persuade them not to fire [Plaintiff],” as union representatives will
often try to settle cases in “off-the-record[] hallway conversations.” (Union
Br. 10 (emphasis in original)). That rumination is no more or less likely than
the one alleged by Plaintiff, and that equipoise is fatal to Plaintiff’s claim:
There is nothing on the face of the SAC to support a finding that there was any
meeting of the minds or that Plaintiff was deprived of any civil right due to any
agreement among Defendants Hodes, Lorraine, Plumb, Walker, and Eischen.

31

The Union Defendants’ and Metro-North Defendants’ motions to dismiss
Plaintiff’s § 1985(3) claim is granted. 15
c.

Plaintiff’s Claim for Breach of the Duty of Fair
Representation

Plaintiff’s time-barred claim for breach of the duty of fair representation
also fails on the merits. To prevail on a claim of breach of the duty of fair
representation, Plaintiff must show “[i] conduct by the union toward a member
that is arbitrary, discriminatory, or in bad faith … and [ii] a causal connection
between the union’s wrongful conduct and [plaintiff’s] injuries. Martino, 582 F.
App’x at 28 (citations omitted). There are no facts in the SAC to support a
finding that the Union Defendants’ conduct in handling Plaintiff’s grievance
process was “arbitrary, discriminatory, or in bad faith” or that there is a causal
connection between any action of the Union Defendants and Plaintiff’s
termination from Metro-North. Defendant Lorraine represented Plaintiff at his
hearing, made a vigorous appeal to Defendant Walker to permit crossexamination of Williams, conducted cross-examination of Defendant Plumb,
and made a closing statement on Plaintiff’s behalf. (See generally Hearing Tr.).
At most, Plaintiff alleges a tactical error or negligence, “neither of which

15

The Union Defendants also argue that Plaintiff’s constitutional claims fail as to them
because unions and their representatives are not state actors. (Union Br. 8-11). While
labor unions are not generally considered arms of the state, see Ciambrello v. Cty. of
Nassau, 292 F.3d 307, 323 (2d Cir. 2002), courts have found that § 1985(3), as drafted,
reaches private conspiracies, see United Bhd. of Carpenters & Joiners of Am., Local 610,
AFL-CIO v. Scott, 463 U.S. 825, 832 (1983). Nevertheless, this Circuit has found that
state action is required where a plaintiff alleges a conspiracy to deprive him or her of
equal protection in violation of the Fourteenth Amendment. Edmond v. Hartford Ins.
Co., 27 F. App’x 51, 53 (2d Cir. 2001) (summary order) (citing United Bhd. of Carpenters,
463 U.S. at 831-32)). The Court finds, therefore, that Plaintiff’s conspiracy claim fails
against the Union Defendants on state action grounds.

32

amounts to a breach of the duty of fair representation.” Martino, 582 F. App’x
at 29 (citing Vaughn v. Air Line Pilots Ass’n, Int’l, 604 F.3d 703, 709 (2d Cir.
2010)). 16
Even if Plaintiff’s allegation that Defendant Lorraine’s instruction to lie
about his injury rises to the level of “bad faith,” Plaintiff cannot show a causal
connection to his termination. Taking as true Plaintiff’s allegation that he was
injured at work but recanted his injury report at Lorraine’s instruction, Plaintiff
certainly knew by the time of his disciplinary hearing that this recantation was
problematic, and he had ample opportunity — including when he testified at
the hearing — to explain why he had falsified the injury report. On these facts,
the Court cannot find that Lorraine’s advice, however misguided, caused
Plaintiff’s termination. Finally, Plaintiff’s claim against Defendant Lorraine fails
for the additional reason that there is no liability for individual union members
for breach of the duty of fair representation. Morris v. Local 819, Int’l Bhd. of
Teamsters, 169 F.3d 782, 784 (2d Cir. 1999) (“We now join the other circuits
that have considered the issue and hold that [the Labor Management Relations
Act,] 29 U.S.C. § 185(b)[,] and the caselaw provide a shield of immunity for
individual union members in suits for breach of the duty of fair

16

In his Opposition, Plaintiff attempts, belatedly and unsuccessfully, to re-frame this
claim as one for ineffective assistance of counsel under the Sixth Amendment and 28
U.S.C. § 2255. It is not clear from the pleadings that Defendant Lorraine is an attorney.
Even so, and as noted in note 14, Plaintiff was not, and is not, a defendant in a criminal
proceeding, is not entitled to a writ of habeas corpus, and may not raise a claim for
ineffective assistance of counsel. See 28 U.S.C § 2255 (making relief available to “a
prisoner in custody”); Singh v. Home Depot U.S.A., Inc., 580 F. App’x 24, 25 (2d Cir.
2014) (summary order) (finding “lawyer’s purported shortcomings present no cognizable
ground for relief in a civil matter, where the Sixth Amendment right to counsel does not
apply” (quoting United States v. Coven, 662 F.2d 162, 176 (2d Cir. 1981))).

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representation.”). The Union Defendants’ motion to dismiss this claim is
granted.
d.

Plaintiff’s Equal Protection Claim

Plaintiff’s untimely equal protection claim must also be dismissed. The
Equal Protection Clause of the Fourteenth Amendment is a mandate that all
similarly-situated individuals be treated alike. City of Cleburne v. Cleburne
Living Ctr., 473 U.S. 432, 439 (1985). “Although the prototypical equal
protection claim involves discrimination against people based on their
membership in a vulnerable class, courts have long recognized that the equal
protection guarantee also extends to individuals who allege no specific class
membership but are nonetheless subjected to invidious discrimination at the
hands of government officials.” Artec Constr. & Dev. Corp. v. N.Y.C. Dep’t of
Hous. Pres. & Dev., No. 15 Civ. 9494 (KPF), 2017 WL 782911, at *2 (S.D.N.Y.
Feb. 27, 2017) (quoting Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494,
499 (2d Cir. 2001)). An individual may assert either a “class of one” or
“selective enforcement” equal protection claim. Id.
Plaintiff rests his claim on a theory of selective enforcement. (SAC ¶¶ 7172, 85). To prevail, he must show that “(i) the plaintiff, compared with others
similarly situated, was selectively treated; and (ii) that such selective treatment
was based on impermissible considerations such as race, religion, intent to
inhibit or punish the exercise of constitutional rights, or malicious or bad faith
intent to injure a person.” Diesel v. Town of Lewisboro, 232 F.3d 92, 103 (2d
Cir. 2000) (citation omitted).

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Even upon a liberal reading of the SAC, the Court finds that Plaintiff
cannot make this showing. Plaintiff points to two Metro-North employees who,
he alleges, committed the same infraction and received a lesser punishment:
Gibson Bratts and Mario Suazo. (SAC ¶ 72). While Plaintiff is not required to
show that these men are identically situated to Plaintiff, he is required to show
they are similar “to the extent that an objectively identifiable basis for
comparability exists.” Savino v. Town of Southeast, 983 F. Supp. 2d 293, 305
(S.D.N.Y. 2013) (internal quotation marks omitted). Like Plaintiff, Bratts and
Suazo are both Coach Cleaners at Metro-North. (SAC, Ex. 1, 10). In 2008,
Bratts was given a 30-day suspension for conduct unbecoming of a
Metro-North employee based on his “false statements regarding [his] alleged
personal injury that [he] reported on February 25, 2008.” (Id. at Ex. 2). That
suspension was subsequently reduced to 10 days. (Id.). Suazo was terminated
in 2003 for conduct unbecoming of a Metro-North employee, namely,
“fraudulent representations to Metro-North of [his] medical condition.” (Id. at
Ex. 8). His termination was later reduced to a suspension. (Id.).
Bratts’s and Suazo’s disciplinary notices each cite one infraction:
conduct unbecoming of a Metro-North employee. (SAC, Ex. 2, 8). Plaintiff’s
cites three: (i) absence from assigned work location without permission on
December 23, 2010; (ii) falsification of an injury report, also on December 23,
2010; and (iii) conduct unbecoming of a Metro-North employee, for admitting
on December 28, 2010, to having made a false statement about his injury. (Id.
at Ex. 15). Because Plaintiff was disciplined on two additional infractions, it is

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not clear that Bratts and Suazo are appropriate comparators. But even
assuming that they are, and that Plaintiff was selectively treated, the SAC does
not allege any facts whatsoever that he was treated differently because of
impermissible considerations or bad faith. Plaintiff does not allege that he is a
member of a protected class or that anyone at Metro-North acted on ill-will or
bad faith rather than “legitimate governmental objectives.” Bizzarro v. Miranda,
394 F.3d 82, 87 (2d Cir. 2005). On these facts, Plaintiff’s claim for selective
discrimination in violation of the Fourteenth Amendment cannot stand. Id. (“If
the motivation to punish is to secure compliance with agency objectives, then
by definition the motivation is not spite, or malice, or a desire to get someone
for reasons wholly unrelated to any legitimate state objective.” (citation
omitted)). 17 The Metro-North Defendants’ motion to dismiss Plaintiff’s equal
protection claim on the merits is granted.
e.

Plaintiff’s Claim for Cruel and Unusual Punishment

Plaintiff believes that his termination from Metro-North amounts to
“cruel and unusual punishment in violation of the [E]ighth Amendment”
insofar as it is “clearly out of proportion to the offense committed.” (SAC ¶ 86).
No matter how sincere his belief in the disproportionality of his termination to
the conduct he allegedly committed, Plaintiff is not entitled to relief under the
Eighth Amendment, which is available only to individuals convicted of criminal

17

Because the Court finds that Plaintiff has not adequately pleading an underlying
constitutional violation that can be vindicated under § 1983, the Court does not reach
the issue of municipal liability for this claim under Monell v. Department of Social
Services, 436 U.S. 658, 694 (1978). See Tyk v. Police Officer Eric Surat, 675 F. App’x 40,
42 (2d Cir. 2017) (summary order) (citing Segal v. City of N.Y., 459 F.3d 2017, 219 (2d
Cir. 2006)).

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conduct. Ingraham v. Wright, 430 U.S. 651, 671 n.40 (1977). The Union
Defendants’ and Metro-North Defendants’ motions to dismiss Plaintiff’s Eighth
Amendment claim is granted.
f.

Plaintiff’s Additional Claims for Relief

Plaintiff’s SAC adverts to various statutes that, it would appear, are
misplaced in this litigation. Plaintiff cites 28 U.S.C. §§ 1341 and 1342, which
address the levy of taxes by a state and “rate orders of state agencies,”
respectively. (SAC ¶ 78). These statutes have no relation to Plaintiff’s claims.
Plaintiff also references 28 U.S.C. §§ 2201 and 2202, which govern declaratory
judgments, but it is not evident from the SAC that Plaintiff seeks such a
remedy. (See id. at ¶¶ 10, 87-92). Plaintiff’s references to 42 U.S.C. §§ 1981
and 1986 (id. at ¶10), strike closer to the core of Plaintiff’s case but are,
nevertheless, untethered to the facts alleged in the SAC. Plaintiff does not
allege any facts concerning his ability to make or enforce contracts, nor does he
claim that anyone was in a position to prevent the Union Defendants’ and
Metro-North Defendants’ allegedly unconstitutional actions but sat idly by. See
42 U.S.C. §§ 1981, 1986. To the extent that Plaintiff seeks any relief from his
fleeting references to these statues, the Court cannot find any basis upon
which these claims survive the instant motions to dismiss.
Finally, Plaintiff’s opposition brief asks the Court to retain supplemental
jurisdiction over his state-law claims (Pl. Opp. 9), but Plaintiff’s SAC does not
plead any claims under state law and so the Court is unable to exercise
supplemental jurisdiction. Plaintiff’s First Amended Complaint appeared to

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raise a claim under the “New York Administrative Act” and the New York State
Constitution. (First Amended Complaint ¶ 40). Those claims are not pleaded
in Plaintiff’s SAC — the operative pleading in this case — and cannot form the
basis of any relief.
g.

Plaintiff Is Not Granted Leave to Amend

A party may amend its pleading “only with the opposing party’s written
consent or the court’s leave. Fed. R. Civ. P. 15(a)(2). Courts are to grant leave
to amend “when justice so requires.” Id.; see also e.g., McCarthy v. Dunn &
Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007). Nevertheless, “leave to
amend may be denied if the amendment would be futile.” Price v. City of N.Y.,
15 Civ. 5871 (KPF), 2017 WL 1437202, at*3 (S.D.N.Y. April 21, 2017) (citing
Knife Rights, Inc. v. Vance, 802 F.3d 377, 389 (2d Cir. 2015)). Plaintiff has
twice amended his Complaint. The Court cannot conceive of any further
amendment that would permit Plaintiff’s claims to survive a motion to dismiss
under Rule 12(b)(6). Accordingly, it declines to grant leave to amend a third
time. Kassner v. 2nd Avenue Delicatessen Inc., 496 F.3d 229, 244 (2d Cir.
2007) (holding that amended complaint must be “sufficient to withstand a
motion to dismiss under [Federal Rule of Civil Procedure] 12(b)(6)).
CONCLUSION
For the foregoing reasons, the Union Defendants’ motion to dismiss the
SAC under Rule 12(b)(6) is GRANTED. The Metro-North Defendants’ motion to
dismiss under Rule 12(b)(1) is DENIED, but their motion to dismiss under Rule
12(b)(6) is GRANTED. Defendant Plumb’s motion to dismiss under Rule

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12(b)(2) is GRANTED. The Clerk of Court is directed to terminate all pending
motions, adjourn all remaining dates, and close this case.
The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from
this Order would not be taken in good faith, and therefore in forma pauperis
status is denied for the purpose of an appeal. See Coppedge v. United States,
369 U.S. 438, 444-45 (1962).
SO ORDERED.
Dated:

September 26, 2017
New York, New York

__________________________________
KATHERINE POLK FAILLA
United States District Judge

Sent by First Class Mail to:
Anthony Leon Clemmons
54 Vreeland Avenue, 1st Floor
Clifton, NJ 07011

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