Opinion
10 Civ. 05407 (RJH).
May 10, 2011
MEMORANDUM OPINION AND ORDER
Defendants Eric Holder, the United States Department of Justice ("DOJ"), and the Federal Bureau of Prisons ("BOP") move to dismiss plaintiff pro se Donald A. Davis's complaint. Because the complaint fails to plead either any Eighth Amendment violation, or any violation of the federal antidiscrimination statutes, this motion is GRANTED.
s/h/a "United States Department of Justice Eric Holder," and "United States Federal Bureau of Prison."
BACKGROUND
Davis filed this lawsuit on July 15, 2010. Davis, a former correctional officer at the Metropolitan Correctional Center ("MCC") in Manhattan, New York, alleges that he was wrongfully terminated from that job on November 29, 2006. (Compl. Attach. 1 ¶ 1.) Davis alleges that BOP accused him of (1) "misuse of [a] BOP credential"; (2) "[p]ossession of an altered government credential"; (3) "[f]ailing to report"; (4) "[c]arrying a concealed weapon"; and (5) "[e]ngaging in outside employment." ( Id.) He alleges, however, that "four of these charges were not sustained," and that "the only charge that was sustained" was "failure to report[,] which no one at MCC and maybe the entire [BOP] has ever been terminated for." ( Id.) The charges other than "failure to report" were dismissed after a Merit Systems Protection Board ("MSPB") hearing in September 2007. ( Id. ¶ 2.) But due to unstated problems with his counsel during that administrative process, Davis did not learn of the result of that hearing until October 2008. ( Id.) Davis brought a pro se appeal in the Court of Appeals for the Federal Circuit, but lost that appeal in March 2010. ( Id. ¶ 3.)
As to the substance of his complaint, Davis alleges he "was discriminated and wrongfully terminated against by Warden Marvin Morrison who showed disparate treatment" of Davis by charging him with the accusations listed above. ( Id. ¶ 4.) Davis asserts that he was punished more seriously for conduct less "severe" than that for which other officers received lighter punishments. ( Id. ¶¶ 4, 5.) Read broadly, Davis's complaint asserts (1) that other officers engaged in conduct allegedly worse than Davis's yet received less discipline, because Morrison "favored" those officers more than Davis; (2) that, in one case, an officer allegedly "received such a light punishment . . . because [Morrison] and [that officer] are members of the same fraternity"; and (3) that BOP and other law enforcement organizations have failed to rehire Davis because he has been "black list[ed]" due to his "termination from a government agency." ( Id. ¶¶ 4, 5, 7.) Davis seeks $20.5 million in damages. ( Id. ¶ 7.)
Defendants filed the present motion to dismiss on December 2, 2010, pursuant to the Court's Scheduling Order of November 1, 2010. ( See ECF document no. [6].) That order required, inter alia, that Davis's opposition papers be filed no later than January 3, 2011. ( Id.) On December 21, 2010, the Court received a letter from Davis requesting a "pre motion meeting . . . to 1) get instruction from your honor and, 2) to discuss my concerns with the governments [sic] motion." (Letter from Donald Davis to the Court dated Dec. 16, 2010.) In response, the Court issued an order on December 23, 2010, denying the request for a meeting or conference, stating that "plaintiff is encouraged to file opposition papers if he wishes to raise any arguments to counter the arguments defendants make in their motion," and extending Davis's deadline to file such papers to January 17, 2011. ( See ECF document no. [10].) Having received no opposition papers to date, the Court now decides this motion.
DISCUSSION
To survive a Rule 12(b)(6) motion to dismiss, a complaint must allege "enough facts to state a claim to relief that is plausible on its face." Starr v. Sony BMG Music Entertainment, 592 F.3d 314, 321 (2d Cir. 2010) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "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). If the factual averments permit no reasonable inference stronger than the "mere possibility of misconduct," the complaint should be dismissed. Starr, 592 F.3d at 321 (quoting Iqbal, 129 S. Ct. at 1950). Thus, "[w]here 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, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 557). In applying this standard of facial plausibility, the Court takes all "factual allegations to be true and draw[s] all reasonable inferences in the plaintiff's favor. Harris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009). But the Court does not credit "mere conclusory statements" or "threadbare recitals of the elements of a cause of action." Iqbal, 129 S. Ct. at 1949.Because "[ p] ro se plaintiffs might not have the legal ken of attorneys," Springs v. Board of Education, No. 10 Civ. 1243, 2010 WL 4068712, at *2 (S.D.N.Y. Oct. 14, 2010), they are held to less stringent pleading standards. Erickson v. Pardus, 551 U.S. 89, 94 (2007). "The court must construe complaints filed by pro se litigants liberally and interpret them to raise the strongest arguments that they suggest." Fehrlin v. Liebowitz, No. 10 Civ. 5027, 2010 WL 4844395, at *1 (S.D.N.Y. Nov. 29, 2010).
As a preliminary matter, though Davis's complaint claims federal question jurisdiction based on a "violation of U.S. Constitution amendment 8 Cruel Unusual Punishment," the claims quite clearly sound in statutory employment discrimination, and not in an Eighth Amendment violation. ( See, e.g., Compl. Attach. 1 ¶ 1 ("Mr. Davis is alleging discrimination. . . ."), ¶ 4 (Mr. Davis was discriminated and wrongfully terminated against by [Morrison] who showed disparate treatment of Mr. Davis. . . .".) In any event, employment discrimination is not cognizable as an Eighth Amendment claim. See Mackay v. United States Postal Service, 607 F. Supp. 271, 280 (E.D. Pa. 1985) (noting that a complaint alleging civil employment discrimination claims fails to state a cause of action under the Eighth Amendment); see also Doye v. Adams, No. CV510-07, 2010 WL 3070202, at *1 (S.D. Ga. Aug. 3, 2010) (noting employment discrimination allegations are "irrelevant" to an Eighth Amendment claim).
Defendants argue (1) that Davis has waived any discrimination claims by appealing the MSPB decision upholding his termination in the Federal Circuit instead of in this Court; and (2) that even if not waived, Davis's discrimination claims are untimely. ( See Defs.' Mem. at 8-11.) Defendants are correct that Davis's appeal to the Federal Circuit operated as an abandonment and waiver of his discrimination claims. Under the Civil Service Reform Act ("CSRA"), 5 U.S.C. § 7701 et seq., federal employees may challenge adverse employment actions allegedly involving, in whole or in part, unlawful discrimination with the MSPB. Henry v. Peake, No. 08 Civ. 6829, 2009 WL 4729932, at *5 (S.D.N.Y. Dec. 10, 2009); see also 5 U.S.C. §§ 7512, 7701; 29 C.F.R. § 1614.302. Such an action is known as a "mixed case" when, as here, it "involves both a claim of discrimination and a challenge to other types of prohibited personnel actions." Fernandez v. Chertoff, 471 F.3d 45, 53 (2d Cir. 2006); ( see also Ramirez-Fisher Decl. Ex. 1 at 17-19 (MSPB decision noting both discrimination- and nondiscrimination-based challenges to termination).) The employee may appeal the outcome of that challenge, in turn, in three manners. If the employee appeals discrimination issues only, then he or she may appeal to the EEOC. Henry, 2009 WL 4729932, at *5. If the appeal does not involve any claims of discrimination, then the Federal Circuit has exclusive jurisdiction over it. Id. at *6. But if the employee wants to appeal findings on both discrimination and non-discrimination issues, then he or she may appeal to the proper United States District Court. Id. at *5. However, if after the MSPB decision, "the employee pursues the mixed case in the Federal Circuit, then she abandons her discrimination claims because the Federal Circuit lacks jurisdiction to entertain discrimination claims." Pueschel v. Peters, 577 F.3d 558, 563 (4th Cir. 2009) (collecting cases); see also Hamilton v. Dep't of Labor, No. 04 Civ. 9605, 2006 WL 760276, at *3 (S.D.N.Y. Mar. 22, 2006) ("The Federal Circuit may only exercise jurisdiction over the appeal of a mixed case decided by the MSPB if the petitioner abandons their discrimination claims.") Here Davis appealed the MSPB decision to the Federal Circuit, and that court affirmed the MSPB's decision. ( See Ramirez-Fisher Decl. Ex. 4.) As Davis has thus waived and abandoned any discrimination claims, to the extent he attempts to bring those claims here, they must be dismissed.
Moreover, even assuming, arguendo, that Davis is not procedurally barred from asserting his discrimination claims, those claims would still be dismissed. Davis does not allege that he was the target of a discriminatory act as a member of any class protected by the federal antidiscrimination statutes. That the MCC Warden "favored" other employees to Davis, that Davis was not in the same "fraternity" as the Warden, and that Davis was formerly terminated from federal employment, ( see Compl. Attach. 1 ¶¶ 5, 7), does not put him in a class protected by any antidiscrimination law. See 42 U.S.C. § 2000e-2(a)(1) (making unlawful discrimination based on an race, color, religion, sex, or national origin); 29 U.S.C. § 623 (age); 42 U.S.C. § 12112(a) (disability).
CONCLUSION
For the reasons stated above, defendants' Motion to Dismiss [7] is GRANTED.SO ORDERED.
Dated: New York, New York
May 9, 2011