Summary
dismissing the plaintiff's claim under the Penal Law, noting that litigation of criminal statutes cannot be brought in private actions
Summary of this case from Zheng v. Gen. Elec. Co.Opinion
01 Civ. 9305 (HB)
June 17, 2002
OPINION ORDER
Plaintiff Jonathan Ware ("Ware"), proceeding pro se, sued his employer for discrimination under 42 U.S.C. § 1983 and 1985, the Fair Labor Standards Act and additional claims for false imprisonment and a violation of New York Penal Law § 165.15. The defendants, via the Office of the New York State Attorney General, move to dismiss the claims pursuant to Fed.R.Civ.P. 12(b)(6). For the following reasons, the motion is GRANTED.
I. BACKGROUND
First a note as to the procedural background. Ware filed his complaint on October 23, 2001. A pretrial scheduling order was entered January 2, 2002, that set February 15, 2002 as the last day to assert additional causes of action or join additional parties, discovery by April 28, 2002, any dispositive motions fully briefed no later than June 20, 2002 and a September, 2002, trial. On March 12, 2002, the defendants submitted a fully briefed motion to dismiss. Prior to a decision on the motion, and without first seeking leave from the court, Ware served an amended complaint on the defendants. Thereafter in the interests of justice and trying cases on their merits I granted plaintiff leave to amend the complaint and permitted the parties additional time to supplement the moving papers. Neither side submitted additional papers.
While there are some questions as to the sufficiency of service of both the complaint and the amended complaint under Fed.R.Civ.P.4, I am mindful of the liberal standards afforded to pro se litigants in this regard and the little risk of prejudice to the defendants here who in fact received the summons and complaints and have addressed the merits of the plaintiff's lawsuit herein. See Romandette v. Weetabix Co., Inc., 807 F.2d 309, 309-311 (2d Cir. 1986) (reversing district court's dismissal of complaint for insufficiency of service, noting that Rule 4 of the Federal Rules is to be construed liberally for pro se litigants "to further the purpose of finding personal jurisdiction in cases in which the party has received actual notice").
As for the merits of the plaintiff's lawsuit, Ware alleges 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.
Since 1996, Ware has been employed by the defendants as a Campus Peace Officer at Hunter College of the City University of New York ("CUNY"). In essence, Ware's claims arise out of his assertion that he was required from time to time to work "out of title" — in other words, to perform duties allegedly not within his job description as a peace officer. Specifically, Ware asserts that he was occasionally made to serve as a fire safety director, a supervisory position that includes additional responsibilities and duties. Ware, who is currently still employed by the defendants, claims that he requested a promotion to a supervisory position, such as a Campus Security Specialist, Sergeant or Corporal, and I assume he never received the promotion, although Ware fails to make that allegation. Ware additionally asserts claims with respect to events that allegedly occurred on February 18, 2002, in which he purports to have arrived at work late due to an unspecified illness, sought and was denied permission to return home, and experienced a medical episode of some sort, although he fails to provide further details. From the record before me, which is hardly clear, the case appears to simply concern the plaintiff's desire for a promotion and his employer's insistence that he not obtain one.
II. DISCUSSION
A. Standard on motion to dismiss
A claim will be dismissed pursuant to Rule 12(b)(6) when "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Tarshis v. Riese Organization, 211 F.3d 30, 35 (2d Cir. 2000). That is clearly the case here.
With respect to his § 1985 cause of action, Ware alleges a violation under § 1985(1), which is inapplicable because he is not a federal officer. See 42 U.S.C. § 1985 (1); see also Pollack v. Nash, 58 F. Supp.2d 294, 305 (S.D.N.Y. 1999) (Connor, J.) ("Section 1985(1) . . . address[es] conspiracies to prevent federal officers from discharging their duties). Affording the plaintiff's claims a broad reading, I find that § 1985(2) is similarly inapposite, as the first clause of that section applies to conspiracies to interfere with proceedings in federal courts, while the second clause requires an allegation of a deprivation of rights on account of the plaintiffs membership in a protected class. See 42 U.S.C. § 1985 (2); see also Kalb v. Wood, 38 F. Supp.2d 260, 270 (S.D.N.Y. 1999) (Parker, J.). Even if Ware's complaint could be construed to fall under § 1985(3), the only other section under which he could assert an allegation, Ware fails to allege a conspiracy, or any racial or class-based animus. See Thomas v. Roach, 165 F.3d 137, 146 (2d Cir. 1999) (finding that an essential requirement to sustain a cause of action under § 1985(3) is that the conspiracy be motivated by "some racial or perhaps otherwise class-based, invidious discriminatory animus behind the conspirators' action") (quoting Mian v. Donaldon, Lufkin Jenrette Secs. Corp., 7 F.3d 1085, 1088 (2d Cir. 1993)).
Ware additionally asserts a generic claim under 42 U.S.C. § 1983, but fails to allege, and I see no facts to suggest, that the defendants intentionally discriminated against him on the basis of his race or otherwise acted to deprive him of a constitutionally protected right. See Hankard v. Town of Avon, 126 F.3d 418, 423 (2d Cir. 1997) ("[P]laintiff must make specific allegations that indicate a deprivation of constitutional rights; general, indirect and conclusory allegations are not sufficient"). Even assuming that Ware's claims could survive under §§ 1983 and 1985, which they do not, he has not attempted to show how he could overcome the Eleventh Amendment's bar of all federal suits against the State of New York and its agencies and entities, of which his employer is likely one. See During v. City University of New York 2002 WL 1159675, at *2 (S.D.N.Y. May 31, 2002) (Jones, J.) (finding CUNY as an arm of the state and entitled to Eleventh Amendment immunity against the plaintiff's federal cause of action under 42 U.S.C. § 1981).
With respect to Ware's claim under the Fair Labor Standards Act, 29 U.S.C. § 206, he fails to specify the section under which he brings his suit. In any event, none apply. In one of his papers he refers to 29 U.S.C. § 206 (d)(1), the Equal Pay Act, which is equally inapplicable because nowhere does he allege that an employee of the opposite sex performed substantially similar work for greater pay. See Lavin-McEleney v. Marist College 239 F.3d 476, 480 (2d Cir. 2001) (noting that to prove liability under the Equal Pay Act a plaintiff must show, among other things, that the employer pays different wages to employees of the opposite sex).
Additionally, the plaintiff brings a claim under New York Penal Law § 165.15, a criminal statute for theft of services which is not susceptible to a private cause of action. Finally, Ware's false imprisonment claim fails on several levels. See e.g., Lee v. Bankers Trust Co., 1998 WL 107119, at *4-5 (S.D.N.Y. March 11, 1998) (Batts, J.) (dismissing false imprisonment claim for failure to allege actual confinement or threatening conduct). III. CONCLUSION
For the above reasons, the defendants' motion to dismiss is GRANTED. The clerk of the court is instructed to close any pending motions, close this case and remove it from my docket.