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finding National Labor Relations Board, Equal Employment Opportunity Commission, and employees of these agencies to be in privity with United States Postal Service and letter carriers union named in prior actions involving "claims that arose out of the same set of events," citing fact that National Labor Relations Board, Equal Employment Opportunity Commission, and United States Postal Service are all government agencies
Summary of this case from Akhenaten v. Najee, LLCOpinion
03 Civ. 1361(LTS)(AJP)
November 7, 2003
REPORT AND RECOMMENDATION
Pro se plaintiff Guy Marshall brought this action against his former employer, the United States Postal Service ("USPS"), his union (and its local chapter) (collectively, the National Association of Letter Carriers ("NALC")), the National Labor Relation Board ("NLRB"), the Equal Employment Opportunity Commission ("EEOC"), and numerous employees of the above organizations, alleging, inter alia, violations of Title VII. conspiracy under 42 U.S.C. § 1981, 1983, 1985 and 1986, breach of a collective bargaining agreement, and defamation and libel. (Dkt. No. 2: Compl.) This action is at least the fourth lawsuit by Marshall in this Court relating to the same events, i.e., his employment and termination by the USPS. Judge Swain dismissed two of those actions, 00 Civ. 3167 and 01 Civ. 3086, and this Court denied Marshall's recent motion for a preliminary injunction in this action. Marshall v. National Ass'n of Letter Carriers Br. 36, 03 Civ. 1361, 2003 WL 22119882 (S.D.N.Y. Sept. 15, 2003) (Peck, M.J.); Marshall v. National Ass'n of Letter Carriers Br. 36, 00 Civ. 3167, 01 Civ. 3086, 2003 WL 223563 (S.D.N.Y. Feb. 3, 2003) (Swain, D.J.). Presently before the Court are motions to dismiss Marshall's latest complaint by defendants USPS, NALC, EEOC and the NLRB.
Even Marshall concedes that "[t]his is the third lawsuit [he] filed against NALC Br. 36 and USPS defendants relating to his employment by the USPS and/or termination of that employment." (7/23/03 Marshall Br. in Opp. to NALC Motion to Dismiss, at 1.) In fact, it is at least the fourth — his action in 02 Civ. 1754 was stayed pending Judge Swain's decision in the two prior cases, and on October 24, 2003, Marshall filed an amended complaint in 02 Civ. 1754 (02 Civ. 1754, Dkt. No. 9), but has not yet served any defendants.
Marshall's amended complaint in 02 Civ. 1754 only names individuals (no agencies), but asserts the same or similar claims against the individuals as were asserted in the Marshall I, n in suits. Indeed, all of the individual defendants in 02 Civ. 1754 are also named as defendants in Marshall IE. The Court therefore sua sponte recommends dismissal with prejudice of Marshall's complaint in 02 Civ. 1754, for the same reasons discussed herein as to Marshall III.
For the reasons set forth below, all motions to dismiss should be granted, and this action should be dismissed in its entirety, with prejudice, against all defendants.
FACTS
Marshall's 00 Civ. 3167 Complaint ("Marshall I")On June 26, 2000, Marshall filed an amended complaint against NALC, USPS, Desmond Bailey, and Kenneth Wavpovitch. (00 Civ. 3167, Dkt. No. 4: Marshall I Am. Compl.) Marshall alleged that he was harassed and terminated by his supervisors for discriminatory reasons. Among other confusing claims, he alleged "a conspiracy under 42 U.S.C. § 1983, 42 U.S.C. § 1985, and 42 U.S.C. § 1986," "defamation (libel and slander) in federal employment" and "Discrimination and Harassment in his employment under Title VII." (Marshall I Am. Compl. ¶¶ 4, 6-7.) In support of these allegations, Marshall described post office charges that he titled "Delaying the Mail" and "Late Lunch." The "Delaying the Mail" charge related to a 1993 incident in which Marshall was charged with delaying the mail. (Marshall I Am. Compl. at 3-8.) Marshall claimed that he was innocent, that Mr. Wavpovitch violated his rights during the grievance procedures, that his union representative was negligent in representing him, and that the union then covered up the actions of its union members. (Marshall I Am. Compl. at 3-8.) Marshall also alleged that NALC discriminated against him and defamed him during the grievance process. (Am. Compl. at 6.) The "Late Lunch" charge related to a 1998 incident in which Marshall's partner was caught drinking an alcoholic beverage while on duty. (Marshall I Am. Compl. at 9-13.) USPS charged Marshall for taking a late lunch on that day. Marshall alleged that NALC and USPS discriminated and conspired against him when they attempted to fire him in order to save his partner's job. (Marshall I Am. Compl. at 9-13.) Marshall alleges that "[t]he last overt act occurred when [Marshall] was wrongfully and unjustly terminated in October 1999. [Marshall] was charged with, (1) delaying the mail, (2) failure to follow instruction of a supervisor, (3) refusal to deliver priority mail, (4) falsifying the integrity of the mail count." (Marshall I Am. Compl. at 13 n. 3.)
Marshall's 01 Civ. 3086 Complaint "Marshall II")
On January 25, 2001, Marshall filed his second in this series of complaints, for Title VII discrimination, against Wavpovitch, USPS and NALC. (01 Civ. 3086, Dkt. No. 1: Marshall II Compl.) In the section directing the plaintiff to describe the alleged discriminatory conduct, Marshall checked off "Unequal terms and conditions of my employment" and typed in "Harassment" next to the space provided for "Other acts." (Marshall II Compl. ¶ 4.) Marshall alleged that the discriminatory conduct occurred on November 23, 1993, and that as of the date of the complaint the acts were not still being committed. (Marshall II Compl. ¶ 5.) In the section of the complaint asking for facts, Marshall typed "SEE Attached Documents, Docket # 00 Civ. 3167." (Marshall II Compl. ¶ 8.) The documents that Marshall attached were all dated between 1993 and 1995, and concern his various grievances and suspensions during that time period. (Marshall II Compl. Art.)
Judge Swain's February 3, 2003 Decision Dismissing Marshall I II
All defendants named in Marshall I and Marshall n (NALC, NALC Br. 36, Desmond Bailey, Kenneth Wavpovitch, and USPS) filed motions to dismiss the two complaints. Judge Swain issued an opinion on February 3, 2003 dismissing the Marshall I and Marshall II complaints. See Marshall v. National Ass'n of Letter Carriers Br. 36, 00 Civ. 3167, 01 Civ 3086, 2003 WL 223563 (S.D.N.Y. Feb. 3, 2003) (Swain, D.J.). Due to the confusing way that Marshall wrote his pro se pleadings, the claims alleged in Marshall I and Marshall n were unclear, and Judge Swain had to determine what were the most likely claims being asserted by Marshall. Judge Swain construed the Marshall I and II complaints as follows:
Judge Swain denied Marshall's reconsideration motion. (00 Civ. 3167, Dkt. No. 61 01 Civ. 3086, Dkt. No. 38: 9/29/03 Order by Judge Swain.) The dockets for these two cases do not reflect any Notice of Appeal by Marshall.
The Court has previously held that the complaint in Marshall will be construed as a hybrid duty of fair representation/breach of collective bargaining agreement action under the Postal Reorganization Act ("PRA"), 39 U.S.C. § 1208(b), (c). See Marshall v. NALC, et. al, No. 00 Civ. 3167, Order at 4-5 (J. Mukasey, April 26, 2000). Plaintiffs second suit, which has been assigned docket number 01 Civ. 3086 (" Marshall II"), refers to the Marshall I complaint and asserts employment discrimination, harassment and retaliation claims under Title VII of the Civil Rights Act of 1964, naming as defendants Kenneth Wavpotich, USPS and Branch 36.
. . . .
The Amended Complaint in Marshall I details 1993 "delaying mail" and 1998 "late lunch" disciplinary proceedings and related grievances, and allegations of irregularities in connection therewith. In the amended Marshall I complaint, Plaintiff further alleged conspiracy and, contrary to Judge Mukasey's direction in the April 2000 order, reiterated civil rights claims and asserted a Title VII claim as well. Plaintiff did not allege receipt of, or attach, a right to sue letter.
The Marshall I complaint generally alleges breaches of duty of fair representation and of a collective bargaining agreement in connection with disciplinary actions, grievances and related proceedings arising in the course of Plaintiffs employment with USPS. The complaint further alleges that all of the disciplinary actions and alleged procedural irregularities were part of a conspiracy to deprive Plaintiff of civil rights in violation of 42 U.S.C. § 1983, 1985 and 1986. The complaint alleges a conspiracy which began with the 1993 disciplinary actions and continued through the October 15, 1999, termination of Plaintiff from USPS employment. . . .
The Marshall II complaint alleges discriminatory conduct on the basis of race consisting of unequal terms and conditions of employment in violation of Title VII, as well as harassment and retaliation. This complaint contains no new factual allegations, referring to the Marshall I complaint for the relevant facts. Plaintiff also attaches an Equal Employment Opportunity Commission ("EEOC") right to sue letter, apparently arising from a 1995 administrative complaint against the USPS. Plaintiff alleges that he was disciplined for delaying the mail and for being involved in two motor vehicle accidents.Marshall v. National Ass'n of Letter Carriers Br. 36, 2003 WL 223563 at *1-3.
Judge Swain granted the USPS's and NALC's motions to dismiss both the Marshall I n complaints in their entirety, for the following reasons: (1) NALC's motion to dismiss Marshall I was granted because the fair representation and breach of collective bargaining agreement claims against NALC were time-barred and because the civil rights claims were previously dismissed, id. at *4-5; (2) the USPS defendants' motion to dismiss Marshall I was granted because of untimeliness, sovereign immunity, and failure to state a claim under 42 U.S.C. § 1983.Marshall v. National Ass'n of Letter Carriers Br. 36, 2003 WL 223567 at *5-7; (3) the USPS defendants' motion to dismiss the Marshall II complaint was granted because of untimeliness, insufficient facts to support a racial discrimination claim, and failure to state a viable retaliation scheme, id. at 7-9; and (4) NALC's motion to dismiss the Marshall II complaint was granted because Marshall nowhere alleged that he had received a right to sue letter against NALC, which is a requirement before bringing a federal suit under Title VII, id. at *9.
Marshall's Current Complaint "Marshall III")
Marshall's current complaint appears to list twelve claims: (1) Title VII discrimination and retaliation "involving the last two cases"; (2) " 43 U.S.C. § 81, 83, 85, 86" conspiracy; (3) Continuing violation doctrine; (4) 5th Amendment violation; (5) Disparate treatment; (6) Bivens Action; (7) 8th Amendment — cruel and unusual punishment; (8) Constitutional ex post facto; (9) Defamation, libel and slander; (10) Involuntary servitude under the Thirteenth Amendment; (11) Bias and prejudice civil action; and (12) Pattern and practice action. (Dkt. No. 2: Compl. at 3) Defendants in Marshall III are NALC, EEOC, NLRB, USPS, the Postmaster General, and thirty-one individuals in their "individual and official capacity." (Compl.) Marshall attaches a long written description of events ranging in time from 1993 up through his termination in 1999.
This Court assumes that Marshall meant to claim 42 U.S.C. § 1981, 1983, 1985, and 1986 as " 43 U.S.C. § 81, 83, 85, and 86" do not exist.
Marshall begins his factual history with December 1993 disciplinary charges for delaying the mail. He seems to argue that his coworker was to blame and that his manager had displaced his anger on Marshall. (Compl. Art. at 1-2.) Marshall claims that Alvin Montero, the shop steward, failed to represent Marshall in disciplinary proceedings, breaching his fiduciary duty to Marshall as well as acting grossly negligent. (Compl. Art. at 2-3.) Next, Marshall claims that Wavpovitch, the issuer of the December 1993 disciplinary memo, deprived him of his civil and constitutional rights by denying the "Step One" administrative process, thereby conspiring against him. (Compl. Art. at 3-5.) Marshall claims that Patrick McNally, a union hearing officer, discriminated against him by accepting the charges against him in the memo without evidence. (Compl. Art. at 5.) Marshall adds that the "the union defendants" violated his procedural due process rights throughout the grievance process. (Compl. Art. at 6.) Marshall states that Lawrence Lynch, his supervising manager, issued a fraudulent document and assisted the union in a conspiracy against Marshall. (Compl. Art. at 6.) Marshall adds that Lawrence Domfort, vice president of the union, attempted to conceal his cover up of misconduct of his union officers, and Marshall seems to tack on a claim of violation of his civil and constitutional rights by Domfort and NALC. (Compl. Art. at 6-7.) Marshall alleges that Frank Orapello, President of the local union, also tried to cover up for his union membership and subjected Marshall to further discrimination. (Compl. Art. at 7-8.)
Marshall discusses disciplinary charges which he received due to motor vehicle accidents, stating that the union failed to fight for Marshall's rights in obtaining exculpatory evidence. In March 1994, Marshall was suspended for failure to drive in a safe manner. (Compl. Art. at 8-9.) Marshall states that the car that he hit sustained a scratch, and it was only because the wheel of his truck slipped on an ice patch. (Compl. Art. at 9.) In September 1995, Marshall was suspended for failure to drive in a safe manner, but he claims that it was the other driver's fault and the union should have sought out that information in preparing his case. (Compl. Art. at 9-10.) In October 1996, Marshall was suspended for another unsafe driving charge, going AWOL for 1.33 hours, failure to follow rules and regulations governing absences. (Compl. Art. at 10.) Again, Marshall claims that the incident alleged was not correct and "might be a retaliatory conspiracy." (Compl. Art. at 10-11.)
On March 18, 1998, Marshall was suspended for failure to obey an order, causing a disruption in the work area and causing a work stoppage, and disrespect to supervisors. (Compl. Art. at 11-12.) Marshall alleges that these charges were fabricated. (Compl. Art. at 12.) Marshall also claims ex post facto constitutional violation in this section, stating that he was denied due process of law when EEOC Administrative Law Judge Koch and Valerie Rooks, a labor relation specialist, used a new regulation that went into effect in November 1999 that prohibited Marshall from "clearing himself." (Compl. Art. at 12.) On June 16, 1998, Marshall was issued a disciplinary charge for taking a late lunch two months earlier on April 22, 1998. (Compl. Art. at 13.) Marshall alleges that this charge somehow demonstrates that USPS and NALC are jointly participating in unfairly terminating Marshall. (Compl. Art. at 13-14.)
On August 8, 1998, Marshall was issued charges for delaying the mail, failure to follow instructions, refusal to deliver priority mail and falsifying the integrity of the mail count. Marshall was fired, allegedly because of false testimony. (Compl. Art. at 19-20.)
Marshall claims that due to the above facts he was needlessly subjected to the following: (1) Intentional infliction of emotional distress; (2) pain and suffering; (3) mental anguish; (4) libel, slander and malice; (5) retaliation; (6) harassment; (7) discrimination; (8) humiliation; (9) loss of credit; (10) family disruption; (11) lost wages, medical benefits and coverage, fringe benefits; and (12) enjoyment of his life. (Compl. Art. at 21. Marshall seeks one billion dollars in exemplary and compensatory damages. (Compl. Art. at 21.)
ANALYSIS
For a discussion of the standards governing motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). see, e.g., Pierce v. Marano, 01 Civ. 3410, 2002 WL1858772 at *3-4 (S.D.N.Y. Aug. 13, 2002) (Peck, MJ.) ( cases cited therein).
Marshall appears to list twelve causes of action in his instant complaint. (Dkt. No. 2: Compl. at 3; see pages 6-7 above.) However, many of these are neither coherent nor legally cognizable, and some of them are elements of other claims.
For example, Marshall asserts a claim of the "continuing violation doctrine" (Compl. at 3), which is not a claim but a doctrine under Title VII that allows a plaintiff to allege facts outside the limitations period as additional proof of a discrimination claim. See, e.g., Fitzgerald v. Henderson, 251 F.3d 345, 359 (2d Cir. 2001) ("Under [the continuing violation] doctrine, if a plaintiff has experienced a continuous practice and policy of discrimination, . . . the commencement of the [Title VII] statute of limitations period may be delayed until the last discriminatory act in furtherance of it.") (internal quotations omitted), cert. denied, 563 U.S. 922, 122 S.Ct. 2586 (2002). Similarly, "disparate treatment" and "pattern and practice" are types of Title VII discrimination claims. See, e.g., Robinson v. Metro-North Commuter R.R., 267 F.3d 147, 158 n. 3 (2d Cir. 2001) ("Disparate treatment claims under Title Vn generally are of two types: (1) individual disparate treatment claims . . . and (2) pattern-or-practice disparate treatment claims that center on group-wide allegations of intentional discrimination."), cert. denied, 535 U.S. 951, 122 S.Ct. 1349 (2002).
Marshall asserts a Bivens claim, but no such claim is available against federal government agencies. See, e.g., Matos v. Hove, 940 F. Supp. 67, 73 (S.D.N.Y. 1996) (citing F.D.I.C. v. Myer, 510 U.S. 471, 486, 114 S.Ct. 996, 1005 (1994)).
Marshall asserts an Eight Amendment Claim of "cruel and unusual punishment." (Compl. at 3.) "The Eight Amendment, however, does not attach until after conviction and sentencing, as 'it was designed to protect those convicted of crimes.'" Murphey v. Nueberger, 94 Civ. 7421, 1996 WL 442797 at *8 (S.D.N.Y. Aug. 6, 1996) (quoting Ingraham v. Wright, 430 U.S. 651, 664, 97 S.Ct. 1401, 1409 (1977)). This case involve's Marshall's employment and its termination, not any criminal conviction and punishment; the Eighth Amendment simply is not applicable.
Finally, Marshall asserts a claim of involuntary servitude under the Thirteenth Amendment. (Compl. at 3.) There is no direct private right of action available under the Thirteenth Amendment. See Alma Soc'v Inc. v. Mellon, 601 F.2d 1225, 1237 (2d Cir.), cert. denied, 444 U.S. 995, 100 S.Ct. 531(1979).
In short, for the most part Marshall's claims involve his writing down legal terms, without supporting facts, that make no sense. The claims are vague and incomprehensible.
Because "[a] claim is frivolous when it is vague and incomprehensible,"Bloom v. United States Gov't, 02 Civ. 2352, 2003 WL 22327163 at *8 (S.D.N.Y. Oct. 10, 2003), the Court can dismiss many of Marshall's claims immediately. See West v. Port Auth. of New York New Jersey, 00 Civ. 6711, 2002 WL 31027016 at *5 (S.D.N.Y. Aug. 30, 2002) (Dismissing claims that "are vague, incoherent, without support and fail to suggest a cause of action."); Ware v. City University of New York, 01 Civ. 9305, 2002 WL 1343752 at *1 (S.D.N.Y. June 18, 2002) (Dismissing plaintiffs complaint containing "a series of facts that suggest some dissatisfaction with his job but are otherwise incoherent and fail to make out a prima facie case for any of his several claims."); Berger v. Lowden, 95 Civ. 7840, 1997 WL 170823 at *3 (S.D.N.Y. April 10, 1997) (Dismissing cause of action where it was "so thoroughly incoherent" that the district judge had "difficulty determining the body of law that mandates its dismissal.").
After reviewing Marshall's complaint and the factual history attached to the complaint, this Court construes Marshall's present complaint as broadly as possible as containing claims for Title VII discrimination and retaliation, 42 U.S.C. § 1981 conspiracy, breach of a collective bargaining agreement, and defamation and libel. See Fisher v. Department of Corr. , 92 Civ. 6037, 1995 WL 608379 at * 1 (S.D.N.Y. Oct. 16, 1995) ("While [plaintiffs] complaint is, at times, incoherent, it is possible to discern certain claims."); Johnson v. Frank, 828 F. Supp. 1143, 1150 n. 3 (S.D.N.Y. 1993) ("While [plaintiffs allegation] is somewhat incoherent, it appears that what plaintiff is attempting to do is claim that. . . ."). In any event, whatever his claims, they are barred by the doctrines of collateral estoppel and res judicata, as discussed below.
II. MARSHALL'S PRESENT COMPLAINT IS BARRED BY PRINCIPLES OF COLLATERAL ESTOPPEL AND RES JUDICATA
In Marshall I and Marshall n, Marshall claimed that the defendants violated his statutory, constitutional and civil rights during his USPS employment from 1993 up until his termination in 1999. See Marshall v. National Ass'n of Letter Carriers Br. 36, 00 Civ. 3167, 01 Civ 3086, 2003 WL 223563 at *1-2 (S.D.N.Y. Feb. 3, 2003) (Swain, D.J.). In Marshall IE, Marshall claims that his statutory, constitutional and civil rights were violated because of many of the same facts and for the same time period as Marshal I II. Collateral estoppel, or issue preclusion, bars Marshall's claims in Marshall III to the extent that they are premised on the events that Marshall described in his first two complaints. Res judicata, or claim preclusion, bars Marshall's remaining claims because they arise out of the same nucleus of facts as Marshall I n and could have been previously asserted by Marshall.
A. Collateral Estoppel
"For collateral estoppel to bar a party from litigating an issue in a second proceeding, '(1) the issues in both proceedings must be identical, (2) the issue in the prior proceeding must have been actually litigated and actually decided, (3) there must have been a full and fair opportunity for litigation in the prior proceeding, and (4) the issue previously litigated must have been necessary to support a valid and final judgment on the merits.'" Cameron v. Church, 253 F. Supp.2d 611, 618 (S.D.N.Y. 2003) (Swain, D.J.) (quoting Gelb v. Royal Globe Ins. Co., 798 F.2d 38, 44 (2d Cir. 1986), cert. denied, 480 U.S. 948, 107 S.Ct. 1608 (1987)); accord, e.g., S.E.C. v. Monarch Funding Corp., 192 F.3d 295, 304 (2d Cir. 1999): Lewy v. Kosher Overseers Ass'n of America. Inc., 104 F.3d 38, 41 (2d Cir. 1997); Central Hudson Gas Elec. Corp. v. Empresa Naviera Santa S.A., 56 F.3d 359, 368 (2d Cir. 1995); Semi-Tech Litig., LLC v. Bankers Trust Co., 272 F. Supp.2d 319, 2003 WL 21666591 at *3 (S.D.N.Y. July 17, 2003); Latino Officers Assh. Inc. v. City of New York, 99 Civ. 9568, 2003 WL 21650007 at *2 (S.D.N.Y. July 14, 2003); Pantoja v. Scott, 96 Civ. 8593, 2001 WL 1313358 at *7 (S.D.N.Y. Oct. 26, 2001) (Peck, M.J.).
Each of these requirements are met insofar as Marshall seeks to claim Title VII discrimination, §§ 1981, 1983, 1985 and 1986 conspiracy charges, breach of a collective bargaining agreement and defamation and libel claims against the Marshall III defendants. The issues in Marshall in are virtually identical to the issues in Marshall I and/or Marshall n. All three complaints alleged Title Vn violations, and Marshall I II, which shared a statement of facts, specifically raised the late lunch and delaying the mail charges included in Marshall in. All three complaints alleged that there existed a conspiracy against Marshall between NALC and USPS, all three complaints alleged harassment and eventual termination of Marshall's employment due to discriminatory and retaliatory reasons, and all three complaints alleged or implied breach of a collective bargaining agreement and the union's duty of fair representation of Marshall. (See pages 3-9 above.) All of these issues were decided against Marshall in Judge Swain's February 3, 2003 decision, Marshall v. National Ass'n of Letter Carriers Br. 36, 2003 WL 223563 at *4-9. As a dismissal pursuant to Rule 12(b)(6), Judge Swain's decision operated as a decision on the merits of the claims asserted in Marshall I H. See, e.g., Federated Dep't Stores. Inc. v. Moitie, 452 U.S. 394, 399 n. 3, 101 S.Ct. 2424, 2428 n. 3 (1981); Cameron v. Church, 253 F. Supp.2d at 619. Marshall makes no showing that he did not have a full and fair opportunity to litigate the issues, a showing that is his burden to establish. See, e.g., James v. City of New York, 01 Civ. 30, 2003 WL 21991591 at *4 (S.D.N.Y. Aug. 20, 2003) (Swain, D.J.) ("In applying collateral estoppel . . ., the burden rests upon the opponent to establish the absence of a full and fair opportunity to litigate the issue in prior action or proceeding.") (internal quotations omitted); Bonilla v. Brancato, 99 Civ. 10657, 2002 WL 31093614 at *4 (S.D.N.Y. Sept. 18, 2002) (Swain, D.J.) ("[T]he party against whom the doctrine of collateral estoppel is asserted bears the burden of showing the absence of a full and fair opportunity to litigate in the prior proceeding.").
Collateral estoppel thus precludes relitigation of the issues raised in Marshall I II
B. Res Judicata
The Second Circuit has held that res judicata challenges may properly be made via a threshold motion to dismiss. See, e.g., Thompson v. County of Franklin, 15 F.3d 245, 253 (2d Cir. 1994) ("Res judicata challenges may properly be raised via a motion to dismiss for failure to state a claim under Rule 12(b)(6)."); Pantoia v. Scott, 96 Civ. 8593, 2001 WL 1313358 at *4 (S.D.N.Y. Oct. 26, 2001) (Peck, M.J.); Clarkstown Recycling Ctr., Inc. v. Parker. Chapin. Flattau Klimpl, 1 F. Supp.2d 327, 329 (S.D.N.Y. 1998) (Parker, D.J.) ("A challenge based on res iudicata grounds may be properly raised in a motion to dismiss pursuant to Rule 12(b)(6).").
Marshall adds factual allegations, claims, and defendants to Marshall III that he did not mention in his earlier Marshall I II complaints. Marshall's additional claims are nevertheless precluded by the doctrine of res judicata.
" Res Judicata 'applies to preclude later litigation if the earlier decision was (1) a final judgment on the merits, (2) by a court of competent jurisdiction, (3) in a case involving the same parties or their privies, and (4) involving the same [claim, or] cause of action.'" Cameron v. Church. 253 F. Supp.2d 611, 619 (S.D.N.Y. 2003) (Swain, D. J.) (citing In re Teltronics Servs., Inc., 762 F.2d 185, 190 (2d Cir. 1985)): see also Pike v. Freeman, 266 F.3d 78. 91 (2d Cir. 2001); Rezzomco v. H R Block. Inc., 182 F.3d 144, 148 (2d Cir. 1999), cert. denied, 528 U.S. 1189, 120 S.Ct. 1243 (2000); Central Hudson Gas Elec. Corp. v. Empresa Naviera Santa S.A., 56 F.3d 359, 366 (2d Cir. 1995); Semi-Tech Litig., LLC v. Bankers Trust Co., 272 F. Supp.2d 319, 325 (S.D.N.Y. July 17, 2003); Bishop v. Porter, 02 Civ. 9542, 2003 WL 21032011 at *4-5 (S.D.N.Y. May 8, 2003). Res Judicata applies "'not only as to what was pleaded, but also as to what could have been pleaded.' Res judicata bars cases that arise from the same 'operative nucleus of fact.' 'New legal theories do not amount to a new cause of action so as to defeat the application of the principle of res judicata.'" Cameron v. Church, 253 F. Supp.2d at 619 (citations omitted); see also, e.g., Pike v. Freeman, 266 F.3d at 91; Rezzonico v. H R Block. Inc., 182 F.3d at 145; Sanchez v. Dankert, 03 Civ. 3276, 2003 WL 21744087 at *2 (S.D.N.Y. July 16, 2003); Bishop v. Porter, 2003 WL 21032011 at *5. "To determine whether two actions arise from the same transaction or claim, 'we look to whether the underlying facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage.'" Marvel Characters. Inc. v. Simon, 310 F.3d 280, 287 (2d Cir. 2002) (quoting Pike v. Freeman, 266 F.3d at 91); see also, e.g., Semi-Tech Litig., LLC v. Bankers Trust Co., 272 F. Supp.2d at 325; Commer v. McEntee, 00 Civ. 7913, 2003 WL 22204550 at *5 (S.D.N.Y. Sept. 24, 2003); Cameron v. Church, 253 F. Supp.2d at 619.
Looking at these four requirements, it is evident that any claims that Marshall III brings against NALC or USPS or their employees are barred by res judicata. Both Marshall I II were dismissed by Judge Swain, and her decision constituted final judgments on the merits. See, e.g., Federated Dep't Stores. Inc. v. Moitie, 452 U.S. at 399 n. 3, 101 S.Ct. at 2428 n. 3 ("The dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) is a 'judgment on the merits.'"); Sanchez v. Dankert, 2003 WL 21744087 at *2. There is no dispute that the Southern District of New York is a "court of competent jurisdiction." In Marshall I II, Marshall brought actions against USPS and NALC arising from his USPS employment and his 1999 termination. Therefore, claims brought against these entities (and their employees) are precluded by res judicata in Marshall III. The claims and causes of action that Marshall brings in the instant case are either exactly the same or rephrased earlier claims that arose out of the same set of events, i.e., his USPS employment and 1999 termination. In Marshall III, although Marshall adds details and facts relating to his employment, Marshall adds no information to his complaint beyond the time period covered in Marshall I II or that is not related to his employment and termination. Therefore, all claims in Marshall III against USPS and NALC and their employees are barred by res judicata.
C. The Doctrines of Res Judicata and Collateral Estoppel Apply to Marshall III Defendants Not Named in Earlier Actions
Marshall III also names as defendants the NLRB, the EEOC, and employees of those organizations, none of whom Marshall named as defendants in his earlier Marshall I II actions. Nonetheless, the doctrines of collateral estoppel and res judicata bar issues and claims against these parties as well as against the parties previously named. As discussed on page 13 above, the doctrine of collateral estoppel does not require that the same parties are named in the earlier action in order to apply to the instant action.
The third prong of the doctrine of res judicata requires the same parties or their privies in both actions in order to preclude later litigation. See, e.g., Cameron v. Church, 253 F. Supp.2d 611, 619 (S.D.N.Y. 2003) (Swain, D.J.). Marshall is the plaintiff in all three actions. Some of the defendants here also were defendants in Marshall I n. As to the new Marshall III defendants, as long as the new defendants have a sufficiently close relationship to the prior defendants — which they do here since all defendants are federal agencies (or their employees) — this third prong is met, and Marshall is barred from bringing suit. See, e.g., Meagher v. Board of Tr. of Cement Concrete Workers., 79 F.3d 256, 258 (2d Cr. 1996) ("the relationship between the [prior defendant] Fund and the [current defendant] Trustees is sufficiently close to warrant the application of res judicata");Central Hudson Gas Elec. Corp. v. Empresa Naviera Santa S.A., 56 F.3d 359, 367-68 (2d Cir. 1995) ("In its modern form, the principle of privity bars relitigation of the same cause of action against a new defendant known by a plaintiff at the time of the first suit where the new defendant has a sufficiently close relationship to the original defendant to justify preclusion.") (citing Amalgamated Sugar Co. v. NL Indus., Inc., 825 F.2d 634, 640 (2d Cir.), cert. denied, 484 U.S. 992, 108 S.Ct. 511 (1987)); Vets North. Inc. v. Libutti, No. CV-01-7773, 2003 WL 21542554 at *11 (E.D.N. Y. Apr. 21, 2003) ("'Contemporary courts have broadly construed the concept of privity, far beyond its literal and historic meaning, to include any situation in which the "relationship between the parties" is "sufficiently close" to supply preclusion.'") (citing Nabisco, Inc. v. Amtech Int'l. Inc., 95 Civ. 9699, 2000 WL 35854 at *6 (S.D.N.Y. Jan. 18 2000)): John Street Leashold. LLC v. Capital Mgmt.Res., L.P., 154 F. Supp.2d 527, 542-44 (S.D.N.Y. 2001); Garyer v. Brown Co. Sec. Corp., 96 Civ. 2507, 1998 WL 54608 at *4 n. 4 (S.D.N.Y. Feb. 10, 1998). Here, the new defendants, as other government agencies, have a sufficiently close relationship to the earlier defendants to be considered in privity where the plaintiff, Marshall, is the same in all three cases. Therefore, the preclusive effect of Judge Swain's February 3, 2003 decision applies to protect all Marshall III defendants, including the EEOC and NLRB defendants. See also Cameron v. Church, 253 F. Supp.2d at 623 (" Resjudicata operates to preclude claims, rather than particular configurations of parties; Plaintiffs addition of new defendants, in the context of allegations of their involvement in the series of alleged deprivations, does not entitle him to revive the previously dismissed claims."); Waldman v. Village of Kiryas Joel, 39 F. Supp.2d 370, 382 (S.D.N.Y. 1999) (Parker, D.J.) ("[G]overnment officials sued in their official capacities are generally considered to be in privity with the governmental entity that they serve. . . . Moreover, res judicata also bars litigation of [plaintiffs] first claim against the Village officials in their individual capacities.") (citations omitted), aff'd, 207 F.3d 105 (2d Cir. 2000): Official Publ'ns. Inc. v. Kable News Co., 811 F. Supp. 143, 147 (S.D.N.Y. 1993) ("The doctrine of res judicata also bars litigation of the same causes of action against defendants who were known to plaintiff at the time the first action was filed but were not named where the newly-added defendants have a sufficiently close relationship to the original defendant . . . Where the 'new' defendants are sufficiently related to one or more of the defendants in the previous action which arises from the same transaction all defendants may invoke resjudicata.") (citations omitted).
Judge Parker noted in Waldman that alleged co-conspirator defendants are considered in "privity" for res judicata purposes. Waldman v. Village of Kiryas Joel, 39 F. Supp.2d at 381-82 ("Res judicata is available to a newly named defendant with a close or significant relationship to a defendant previously sued, when the claims in the new action are essentially the same as those in the prior action and the defendant's existence and participation in the relevant events was known to the plaintiff. These cases penalize a plaintiff for asserting in a subsequent action the same claim against a co-conspirator, whose participation in the plaintiffs prior action was clear, but whom the plaintiff chose not to sue earlier. The courts have warned that because co-conspirators were 'in privity with prior defendants they are entitled to res judicata.") (citations omitted).
Thus, the doctrines of collateral estoppel and res judicata require dismissal of Marshall III as against all defendants.
III. MARSHALL'S TITLE VII CLAIMS ALSO ARE BARRED FOR ADDITIONAL REASONS
The EEOC denied Marshall's request for reconsideration of his discrimination charge against the USPS, and granted Marshall a right to sue letter on July 18, 2002. (00 Civ. 3167, Dkt. No. 65: Martin Aff. Ex. 1:7/18/02 EEOC Right to Sue Letter.) In his complaint, Marshall states that he received the Right to Sue Letter on July 18, 2002 (Dkt. No. 2: Compl. ¶ 12), while in his opposition papers, Marshall states that he received the Right to Sue Letter on July 23, 2002 (7/13/03 Marshall Br. in Opp. to NALC Motion to Dismiss, at 4).
Marshall filed his pro se complaint in this action on October 25, 2002. (Dkt. No. 2: Compl. at 1, 21.) Title VII requires a complaint to be filed within 90 days (not three calendar months) of receipt of an EEOC right to sue letter. See 42 U.S.C. § 2000e-5(F)(1); see also, e.g., Heard v. MTA Metro-North Commuter R.R., 02 Civ. 7565, 2003 WL 22176008 at *2-3 (S.D.N.Y. Sept. 22, 2003) ("Having received the right-to-sue letter, the claimant has ninety days to bring suit."); Toolan v. Board of Ed., 02 Civ. 6989, 03 Civ. 576, 2003 WL 22015437 at *2 (S.D.N.Y. Aug. 25, 2003) ("To be timely, actions for violations of Title VII . . . must be filed within 90 days after receipt of a right to sue letter from the EEOC. . . . As the Second Circuit has held, 'in the absence of a recognized equitable consideration the court cannot extend the limitations period by even one day.'"); Economou v. Caldera, 99 Civ. 12117, 2000 WL 1844773 at *24 (S.D.N.Y. Dec. 18, 2000) (Peck, MJ.) ("Within ninety days of that agency's final decision, or after 180 days have passed from the filing of the complaint if no final decision has been rendered, the complainant may file suit in federal court.") ( cases cited therein); Taylor v. Henderson, 99 F. Supp.2d 434, 437 (S.D.N.Y. 2000) (Peck, M.J.) ("A government employer can sue his employing agency for discrimination in federal court within 90 days of final agency action or after 180 days have passed from the filing of the formal agency EEO complaint without a final agency decision."); McFarland v. Metro-North Commuter R.R., 993 F. Supp. 210, 210 (S.D.N.Y. 1998) (Kaplan, D.J. Peck, MJ.) ("An employment discrimination suit under Title VII must be filed within 90 days of plaintiff s receipt of a right to sue letter from the EEOC. . . . [F]ailure to bring suit within the prescribed 90-day limit is grounds for dismissal."); Fletcher v. Runyon, 980 F. Supp. 720, 721 (S.D.N.Y. 1997) (Rakoff, DJ. Peck, MJ.). Here, accepting Marshall's claim that he received the July 18, 2002 EEOC right to sue letter on July 23, 2002, his 90 day period expired on October 23. 2002, two days before he filed his complaint. Thus, his Title VII claim is time barred.
42 U.S.C. § 2000e-5(f)(1) states:
If a charge filed with the Commission pursuant to subsection (b) of this section is dismissed by the Commission, or if within one hundred and eighty days from the filing of such charge or the expiration of any period of reference under subsection (c) or (d) of this section, whichever is later, the Commission has not filed a civil action under this section or the Attorney General has not filed a civil action in a case involving a government, governmental agency, or political subdivision, or the Commission has not entered into a conciliation agreement to which the person aggrieved is a party, the Commission, or the Attorney General in a case involving a government, governmental agency, or political subdivision, shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge (A) by the person claiming to be aggrieved or (B) if such charge was filed by a member of the Commission, by any person whom the charge alleges was aggrieved by the alleged unlawful employment practice.
In addition, Marshall's EEOC charge and right to sue letter were against the USPS, and not NALC, as even Marshall concedes. (7/23/03 Marshall Br. in Opp. to NALC Motion to Dismiss, at 2: "The NALC Br. 36 defendants were not named as respondents in Marshall's EEOC charge. . . .") Because NALC was not named in the EEOC charge and right to sue letter, Marshall cannot bring a Title VII action against NALC. See 42 U.S.C. § 2000e-5(f)(1); see also, e.g., Vital v. Interfaith Med. Ctr., 168 F.3d 615, 619 (2d Cir. 1999) ("A complainant must file a charge against a party with the EEOC or an authorized state agency before the complainant can sue that party in federal court under Title VII.");Schade v. Coty, 00 Civ. 1568, 2001 WL 709258 at *4 (S.D.N.Y. June 25, 2001) ("In general, a party not named as a respondent in the EEOC charge may not later be named as a defendant in a civil suit under the ADEA or Title Vn."); Sharkey v. Lasmo, 906 F. Supp. 949, 954 (S.D.N.Y. 1995) ("a party who has not been named as a respondent in an EEOC charge may not subsequently be named as a defendant in a civil suit under the ADEA.");Dortz v. City of New York, 904 F. Supp. 127, 142 (S.D.N.Y. 1995) ("A prerequisite to maintaining a Title VII action against a defendant . . . is the filing of a charge with the EEOC or authorized state agency, naming the defendant") (citing Johnson v. Palma, 931 F.2d 203, 209 (2d Cir. 1991)). While these cases allow an exception where there is an identity of interest, the cases also make clear that the exception does not apply where, as here, the plaintiff could ascertain the role of the unnamed party at the time of filing his EEOC charge, and that there is not an identity of interest between an employer (here, the USPS) and a union (here, NALC). See, e.g., Vital v. Interfaith Med. Ctr., 168 F.3d at 619-20.
In addition to not being named in the EEOC charge and right to sue letter, it is black letter law that Title Vn claims only may be brought against the employer (here, USPS), and not against individual supervisors (or other individuals). See, e.g., Tomka v. Seiler, 66 F.3d 1295, 1313 (2d Cir. 1995); Gonzalez v. New York City Tran. Auth., 00 Civ. 4293, 2001 WL 492448 at *8 (S.D.N.Y. May 9, 2001) (Peck, M.J.); Cobian v. New York City, 99 Civ. 10533, 2000 WL 1782744 at *10 n. 23 (S.D.N.Y. Dec. 6, 2000) (Peck, M.J.), aff'd, No. 01-7575, 2002 WL 4594 at *1 (2d Cir. Dec. 21, 2001); Fletcher v. Runyon, 980 F. Supp. 720, 722 (S.D.N.Y. 1997) (Rakoff, DJ. Peck, M.J.); Hernandez v. New York City Law Dep't, 94 Civ. 9042, 1997 WL 27047 at *10, *20 (S.D.N.Y. Jan. 23, 1997) (Peck, M.J.).
Finally, Marshall sues the EEOC and various EEOC employees (including an EEOC Administrative Law Judge) because Marshall does not agree with their decision not to pursue his discrimination/retaliation claim against the USPS. (Dkt. No. 2: Compl. Art. at 12.) This is frivolous. Title VII provides for initial review of discrimination claims by the EEOC, 42 U.S.C. § 2000e-5(b), but provides that a complainant who is not satisfied with the EEOC's decision can bring a lawsuit in federal court against his or her employer. See 42 U.S.C. § 2000e-5(f)(1). The statute does not provide for judicial review, as such, of the EEOC's decision, and certainly not a right to sue the EEOC for damages. See Milhous v. EEOC, No. 97-5242.145 F.3d 1332 (table), 1998 WL 152784 at *1 (6th Cir. 1998) ("plaintiff simply does not have a cause of action under Title VII against the EEOC to challenge the processing of her discrimination complaint. . . . Nor does a cause of action for violation of plaintiffs civil rights arise from the alleged mishandling of her discrimination complaint.") ( cases cited therein).
Thus, in addition to collateral estoppel and res judicata, Marshall's Title VII claim should be dismissed for these additional reasons. IV. MARSHALL'S CLAIMS AGAINST THE NLRB DEFENDANTS ARE BARRED FOR ADDITIONAL REASONS
The EEOC also asserts other reasons why the case should be dismissed, including that it was not properly served. (00 Civ. 3167, Dkt. No. 64: Gov't Br. at 20-25.) The Court need not address these other issues.
Marshall III names as defendants the NLRB, NLRB Regional Director Celeste Mattina, and NLRB field attorney Eric Brooks among the thirty-eight defendants named on the second page of his complaint. (Dkt. No. 2: Compl. at 2.) Marshall neither explicitly nor implicitly mentions the NLRB or NLRB employees even once in his twenty-one page typed narrative attachment to the complaint. (See pages 6-9 above.) Marshall's complaint also attaches unnumbered or otherwise unspecified documents that this Court assumes are exhibits to his complaint. In this three inch stack of old letters, grievance forms, transcripts, and memorandum relating to earlier cases, the NLRB or Mr. Brooks' name appears four times: twice when Marshall carbon copied Mr. Brooks on a letter and an affidavit to the EEOC, once in a letter from the NLRB dated November 28, 2000 in response to a request for documents, and once in an NLRB print-out explaining the rationale for his termination as indicated in his file. Even though the Federal Rules call for a short statement of facts, this is hardly sufficient to meet the requirement of stating a claim which relief may be granted. See Fed.R.Civ.P. 8; see also, e.g., Swierkiewicz v. Sorema, 534 U.S. 506, 512, 122 S.Ct. 992, 998 (2002);Conlev v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 102 (1957) (The Federal Rules require "'short and plain statement of the claim' that will give the defendant fair notice of what the plaintiffs claim is and the ground upon which it rests."); Germany v. N.Y.S. D.O.C.S., 03 Civ. 148, 2003 WL 22203724 at *8 (S.D.N.Y. Sept. 22, 2003) ("While the Court has an obligation to construe a pro se complaint to state every argument which it could fairly be read to propose, the Court cannot supply featureless allegations . . . with the specificity necessary to avoid dismissal."); Jenkins v. New York City Transit Auth., 00 Civ 6310, 2002 WL1941482 at *2 (S.D.N.Y. Aug. 21, 2002).
Even under the liberal standard afforded to pro se plaintiffs, this Court cannot find in the complaint or in any of its attachments a claim against the NLRB defendants that satisfies Rule 8. It is not necessary to allow Marshall to amend, however, since the parties' motion papers clarify the basis for Marshall's claim against the NLRB defendants.
The NLRB has assumed that Marshall's claim against the NLRB defendants "can be read to allege that the NLRB Defendants improperly refused to prosecute charges [of unfair representation against NALC] that Marshall filed with the NLRB's Regional Office." (Dkt. No. 11: NLRB Br. at 5.) Based on this assessment of his claim, the NLRB argues that Marshall's complaint should be dismissed because "the Supreme Court, and the Courts of Appeals, including the Second Circuit, all have held that the [NLRB] General Counsel's consideration and decision whether to issue a complaint is an unreviewable act of prosecutorial discretion." (Id. at 5 n. 4, citing cases.) Marshall's opposition papers appear to agree that that is the basis for his claim. (Dkt. No. 21: Marshall 8/8/03 "Motion" in Opp. to NLRB Motion to Dismiss, at 1-3.) Marshall argues, however, that the Supreme Court has carved out exceptions to allow review of the NLRB's decisions, and that the "case falls within narrow exception created by US Supreme Court in Leedom v. Kyne, 358 U.S. 184," 79 S.Ct. 180 (1958). (Marshall 8/8/03 "Motion" in Opp. to NLRB Motion to Dismiss, at 3.) This Court disagrees.
See, e.g., NLRB v. United Food Commercial Workers Union. Local No. 23, 484 U.S. 1 12. 127, 108 S.Ct. 413, 423 (1987) ("Congress intended that the General Counsel should not only resolve appeals regarding the filing of complaints, but that he or she should be the 'final authority' concerning the 'prosecution' of complaints as well . . ."); Detroit Edison Co. v. NLRB, 440 U.S. 301, 316, 99 S.Ct. 1123, 1131 (1979); Vaca v. Sipes, 386 U.S. 171, 182, 87 S.Ct. 903, 913 (1967).
As the Supreme Court has explained:
The issue [in Leedom] was whether a district court had jurisdiction to review a claim that the National Labor Relations Board had acted "in excess of its delegated powers and contrary to a specific (statutory) prohibition," in certifying a collective-bargaining unit. While § 9(d) of the National Labor Relations Act, 29 U.S.C. § 159(d), arguably divested the district courts of jurisdiction, it contained no express language to that effect. It merely specified the manner in which the record of a certification proceeding would be transmitted to a court of appeals for ultimate review in the event an unfair labor practice case followed an employer's refusal to bargain with a certified union. The action in Leedom was brought by a group of employees affected by the NLRB's admitted violation of the Act in certifying their bargaining unit. The Court noted that unless the District Court had jurisdiction, the employees might never secure review of the Board's error. Absent express preclusion, the Court was unwilling to find that Congress intended to allow "obliteration of a right which Congress has given (the affected employees), for there is no other means, within their control . . . to protect and enforce that right."Briscoe v. Bell, 432 U.S. 404, 414 n. 13, 97 S.Ct. 2428, 2434 n. 13 (1977).
Here, Marshall does not allege that the NLRB acted "in excess of its delegated powers" or contrary to a "specific (statutory) prohibition." As the Second Circuit pointed out in Goethe House New York v. NLRB: "In only two cases . . . has the Supreme Court held that a district court has jurisdiction to review a Board order in a representation proceeding. . . . In Kyne , the Court established an 'extremely narrow exception to the general rule that Board representation orders are not subject to direct judicial review.'. . . [T]he district court has jurisdiction only when the order violates a specific prohibition of the NLRA." Goethe House New York v. NLRB, 869 F.2d at 75, 77 (2d Cir.), cert. denied, 493 U.S. 810, 110 S.Ct. 52 (1989) (citations omitted). In refusing to prosecute Marshall's charges, the NLRB did not violate a specific prohibition of the National Labor Relations Act; rather, it exercised the discretion given the NLRB under the Act. Therefore, Marshall's claim against the NLRB defendants should be dismissed for lack of subject matter jurisdiction. See Becker v. NLRB, 81 Civ. 2826, 1982 WL 2058 at *2 (E.D.N.Y. Jan. 5, 1982) ("Since the plaintiffs only claim against the Board appears to be in connection with its refusal to issue any complaints, lack of subject matter jurisdiction mandates the dismissal of the whole complaint as against the NLRB.").
V. MARSHALL'S REQUEST TO AMEND HIS COMPLAINT SHOULD BE DENIED
In opposing defendants' motions to dismiss, Marshall has requested leave to amend his complaint to correct his failure to state a claim against (at least) the NLRB defendants. Since Marshall has brought prior suits relating to his employment and termination, and the Court cannot perceive that Marshall can bring any viable claim in this Court anymore, he should not be granted further leave to amend. See, e.g., Fahie v. Department of Veterans Affairs, 39 F. Supp.2d 332, 334 (S.D.N.Y. 1999) (Rakoff, D.J. Peck, M.J.); Cohen v. Standard Bank Inv. Corp., 97 Civ. 3802, 1998 WL 782024 at *7 (S.D.N.Y. Nov. 6, 1998) (denying leave to amend complaint because "This Court has twice considered plaintiff s allegations and twice found them to be insufficient. Defendant has spent considerable resources in attacking two versions of the complaint. It would be patently unfair, both to the defendant and the court to permit plaintiff to amend the complaint again. Therefore, leave to amend is denied."); Benzo v. New York State Div. of Human Rights, 95 Civ. 5362, 1997 WL 37961 at *4 (S.D.N.Y. Jan. 31, 1997) (dismissing complaint without leave to appeal since "Courts are free to dismiss a Complaint without leave to amend if a pro se plaintiff fails to satisfy Rule 8(a) after leave to replead has previously been granted; otherwise, litigation could continue indefinitely without ever emerging from the pleading stage") (citing Prezzi v. Schelter, 469 F.2d 691, 692 (2d Cir. 1972), cert. denied, 411 U.S. 935, 93 S.Ct. 1911 (1973)), aff'd, No. 97-7284, 141 F.3d 1151 (table), 1998 WL 74843 (2d Cir. Feb. 19, 1998).
CONCLUSION
For the reasons set forth above, the Court should GRANT all defendants' motions to dismiss the complaint and DISMISS Marshall's complaint in its entirety, with prejudice, as against all defendants. Further, for the reasons stated in fn. 1 above, the Court should also dismiss Marshall's complaint in 02 Civ. 1754.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Laura Taylor Swain, 40 Centre Street, Room 1205, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Swain. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Am, 474 U.S. 140, 106 S.Ct. 466 (1985): IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992): Small v. Secretary of Health Human Servs., 892 F.2d 15.16 ad Cir. 1989): Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).