The opinion of the court was delivered by: Spatt, District Judge.
In this regard, the Court notes that the plaintiffs generally
allege that minority applicants for employment with the
defendants have been discriminated against on the basis of
race. Although this might arguably come within the coverage of
section 1981 as to the "formation" of an employment contract,
none of the named plaintiffs in this action are within that
class of persons.
Accordingly, the motion of the defendants to dismiss the
claims based on 42 U.S.C. § 1981, is granted, and those claims,
namely, the first, third and fourth causes of action,*fn4 are
dismissed as a matter of law.
The plaintiffs allege violation of 42 U.S.C. § 1985, namely,
conspiracy to interfere with civil rights. The defendants
challenge this cause of action on the ground that the
allegations of conspiracy are vague and conclusory.
Although the Amended Complaint fails to state the particular
subdivision of section 1985 under which the plaintiffs are
proceeding, viewing the Amended Complaint on the whole, it
appears that they are invoking section 1985(3).
In order to state a claim for conspiracy under
42 U.S.C. § 1985(3), a plaintiff must allege that the defendants (1)
engaged in a conspiracy, (2) for the purpose of either directly
or indirectly depriving him or a class of persons of which he
is a member, of equal protection of the laws; and that (3) acts
taken by the defendant in furtherance of the conspiracy (4)
deprived him, or the class, of the exercise or privilege of a
citizen of the United States (see New York State NOW v. Terry,
886 F.2d 1339, 1358 [2d Cir. 1989], cert. denied, ___ U.S. ___,
110 S.Ct. 2206, 109 L.Ed.2d 532 ; see also Griffin v.
Breckenridge, 403 U.S. 88, 102-03, 91 S.Ct. 1790, 1798-99, 29
L.Ed.2d 338; Sorlucco v. New York City Police Dep't,
888 F.2d 4, 8 [2d Cir. 1989]). Under section 1985, a plaintiff must also
demonstrate "`some racial, or perhaps otherwise class-based,
invidiously discriminatory animus behind the conspirators'
action'" (New York State NOW v. Terry, supra, 886 F.2d at p.
1358, quoting Griffin v. Breckenridge, supra, 403 U.S. at pp.
102-03, 91 S.Ct. at pp. 1798-99). Although the precise reach of
section 1985(3) remains somewhat unresolved, it is clearly
aimed at class-based animus directed toward race (see, e.g.,
United Brotherhood of Carpenters & Joiners, Local 610 v. Scott,
463 U.S. 825, 835-37, 103 S.Ct. 3352, 3359-61, 77 L.Ed.2d 1049
The Amended Complaint alleges that the defendants engaged in
a conspiracy for the purpose of depriving them and others
similarly situated of equal protection of the laws, and that
acts taken by the defendants in furtherance of the conspiracy
have in fact deprived the plaintiffs of the
exercise of privileges of citizens of the United States. The
plaintiffs also allege that they are members of a protected
class, namely, blacks. It is further alleged that the
defendants conspired to deprive the plaintiffs of their Fourth,
Fifth and Fourteenth Amendment rights insofar as they have
selectively subjected black employees to mandatory drug
testing, and have not required the same of similarly situated
white employees. The Amended Complaint also alleges that the
defendants have subjected black employees at the TA to
discipline when, under the same circumstances, whites are not,
and that the terms and conditions of employment for the
plaintiffs are less favorable than those of similarly situated
The plaintiffs have clearly alleged facts couched in the
required statutory and constitutional language. However, these
facts are mere conclusory assertions, and the Amended Complaint
is devoid of any specifics whatsoever to support these
conclusions. For example, no facts are set forth as to the
roles of each of the defendants who allegedly participated in
this conspiracy, or how the terms and conditions of employment
differ among the TA employees, or the actual overt acts of the
conspiracy. A constitutional conspiracy claim must be pled with
at least some degree of particularity (see Bertucci v. Brown,
663 F. Supp. 447, 454 [E.D.N.Y. 1987]; see also Neustein v.
Orbach, 732 F. Supp. 333, 346 [E.D.N.Y. 1990] ["allegations that
Orbach engaged in a conspiracy . . . are no more than naked
improbable unsubstantiated assertions without any specifics"]).
Accordingly, pursuant to Fed.R.Civ.P. 12(b)(6), the
plaintiffs' claims under 42 U.S.C. § 1985(3), are dismissed for
failure to state a claim. The plaintiffs are, however, granted
leave to replead these claims in a more particularized fashion
(see Branum v. Clark, 927 F.2d 698, 704 [2d Cir. 1991]
["dismissal [under Rule 12(b)(6)] ordinarily should be
accompanied by leave to file an amended complaint"]).
4. Violation of Constitutional Rights (§ 1983).
The sixth cause of action of the Amended Complaint alleges
violation of 42 U.S.C. § 1983, based on the defendants' alleged
deprivation of the plaintiffs' Fourth Amendment rights by
requiring TA employees to submit to drug urinalysis testing
without first having any degree of reasonable suspicion and
without regard to whether the employee is in a "safety
sensitive" position or not.
Section 1983 provides redress to a plaintiff who demonstrates
that he or she has been deprived of a constitutional right by
a person acting under color of state law (see 42 U.S.C. § 1983;
Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155, 98 S.Ct. 1729,
1732, 56 L.Ed.2d 185 ). In order to state a claim under
section 1983, the plaintiff must establish the following:
"`First, the plaintiff must prove that the
defendant has deprived him of a right secured by
the "Constitution and laws" of the United States.
Second the plaintiff must show that the defendant
deprived him of this constitutional right "under
color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory." This
second element requires that the plaintiff show
that the defendant acted "under color of law."'"
(Fine v. City of New York, 529 F.2d 70, 73 (2d Cir.
1975), quoting Adickes v. S.H. Kress & Co.,
398 U.S. 144, 150 [90 S.Ct. 1598, 1604, 26 L.Ed.2d 142]
Although the Court is mindful of the liberal notice pleading
requirements of Fed.R.Civ.P. 8(a)(2), "[i]f a civil rights
complaint is to survive a motion to dismiss, it must make
specific factual allegations indicating a deprivation of
rights" (Fonte v. Board of Managers of Continental Towers
, 25 [2d Cir. 1988] [citations
omitted]). Broad or vague conclusory statements are
insufficient to state a cognizable claim under section 1983
(see Alfaro Motors, Inc. v. Ward,
, 887 [2d Cir.
Accordingly, the motion of the defendants to dismiss the
claims based on 42 U.S.C. § 1983, is denied.
Although the Amended Complaint fails to separately delineate
a separate cause of action for violation of section 504 of the
Rehabilitation Act of 1973, 29 U.S.C. § 794, the pleading
contains many references to that statute, and the defendants
move to dismiss these allegations.
Section 504 prevents an employer receiving federal financial
assistance from discriminating against an "otherwise qualified"
individual with a handicap (29 U.S.C. § 794[a]). The Act's
definition of such an individual includes a person with a
"physical or mental impairment" (29 U.S.C. § 706[B]), which
has been construed by the courts to include substance abuse as
a protected handicap (see Note, Urine Testing, Testing-Based
Employment Decisions and the Rehabilitation Act of 1973, 22
Colum.J.L. & Soc.Probs. 219, 248-66 ).
The plaintiffs allege that the TA's drug testing policy
discriminates against "handicapped individuals", namely, those
persons who test positive for drug use. However, in order to
show that the New York City Transit Authority workers who test
positive for drug use are "individuals with a handicap" within
the meaning of the Rehabilitation Act, it must be alleged that
they are rehabilitated substance abusers or individuals
currently undergoing treatment (Burka v. New York City Transit
Auth., 680 F. Supp. 590, 600 n. 18 [S.D.N.Y. 1988]).
The plaintiffs have failed to allege that they are
rehabilitated substance abusers or that they are currently
undergoing treatment which, in this Court's view, is fatal to
this claim as a matter of law. Therefore, any claims alleging
violation of section 504, to the extent they have been pled at
all, are dismissed.
Section 1962 of RICO makes it unlawful to: (a) invest income
"derived from a pattern of racketeering activity" in an
interstate enterprise; (b) acquire or maintain an interest or
control in an enterprise "through a pattern of racketeering";
participate in the conduct of an enterprise's affairs "through
a pattern of racketeering"; or (d) conspire to violate any of
these substantive prohibitions (see 18 U.S.C. § 1962). Section
1964(c) creates a private right of action.
The threshold pleading requirements of a private action under
section 1962 of RICO were set forth in Moss v. Morgan Stanley,
Inc., 719 F.2d 5 (2d Cir. 1983), cert. denied sub nom. Moss v.
Newman, 465 U.S. 1025, 104 S.Ct. 1280, 79 L.Ed.2d 684 (1984),
"To state a claim for damages under RICO a
plaintiff has two pleading burdens. First, he must
allege that the defendant has violated the
substantive RICO statute, 18 U.S.C. § 1962 (1976),
commonly known as `criminal RICO.' In so doing, he
must allege the existence of seven constituent
elements: (1) that the defendant (2) through the
commission of two or more acts (3) constituting a
`pattern' (4) of `racketeering activity' (5)
directly or indirectly invests in, or maintains an
interest in, or participates in (6) an `enterprise'
(7) the activities of which affect interstate or
foreign commerce. . . . Plaintiff must allege
adequately defendant's violation of section 1962
before turning to the second burden — i.e.,
invoking RICO's civil remedies of treble damages,
attorneys fees and costs. . . . To satisfy this
latter burden, plaintiff must allege that he was
`injured in his business or property by reason of a
violation of section 1962'" (id. at p. 17
The defendants challenge the sufficiency of the RICO claims
alleged in the Amended Complaint on the ground that the
plaintiffs have failed to allege two or more predicate acts
sufficient to form the basis of a RICO action. In addition, the
defendants contend that the Amended Complaint fails to set
forth a claim of conspiracy to violate RICO under section
Sections 1962(b) and (c) of RICO prohibit conducting the
affairs of an enterprise, as well as acquiring an interest in
an enterprise, through a "pattern of racketeering activity".
The term "racketeering activity" refers to the predicate acts
necessary to sustain a RICO claim. The predicate acts include,
inter alia, violent crimes (e.g., murder, kidnapping),
pornography, narcotics trafficking, gambling, embezzlement,
bribery, securities fraud, mail fraud and wire fraud (see
18 U.S.C. § 1961).
The plaintiffs apparently rely on acts of bribery, although
the Amended Complaint fails to state which bribery statute they
are proceeding under to supply the predicate acts (see
18 U.S.C. § 1961[A] or [B]). The plaintiffs also rely on
violations of wire fraud (see 18 U.S.C. § 1961[B]).
The alleged acts of bribery involve Arbitrator Simmelkjaer,
whereby the defendants allegedly offered Arbitrator Simmelkjaer
a part-time position with the TA for $80,000 per annum while
plaintiff Laverpool's arbitration hearing concerning his
dismissal was then pending before him. The second alleged act
of bribery is the alleged attempt to bribe public officials to
obtain the necessary certificates of license for Compuchem to
operate the testing laboratory. As stated above, the Amended
Complaint does not state anywhere whether the acts are alleged
to constitute bribery under federal or state law.
The Court finds that a bribery claim under the federal
statute is inapplicable. Pursuant to 18 U.S.C. § 201 (bribery
of a public official), the person receiving the alleged bribe
must be a federal official as defined in 18 U.S.C. § 201(a)(1).
Arbitrator Simmelkjaer is not a federal official. As to the
alleged bribe of "public officials" involving Compuchem,
nowhere is it alleged in the Amended Complaint that these
"public officials" are federal officials.
Similarly, under state law, namely, New York Penal Law §§
180.00-180.55 (bribery not involving public servants) and
200.00-200.50 (bribery involving public officials), the Amended
Complaint not only fails to state which of the state statutes
the plaintiffs are relying upon, but it also fails to set forth
sufficient allegations to determine whether the acts constitute
"bribery". It does not set forth in any detail the
circumstances of the alleged Compuchem bribe, including the
persons involved, which
would give the defendants notice of the statute they are
alleged to have violated.
For example, "commercial bribery in the second degree" under
New York's Penal Law § 180.00, occurs when a person, "confers,
or offers or agrees to confer, any benefit upon any employee,
agent or fiduciary without the consent of the latter's employer
or principal, with intent to influence his conduct in relation
to his employer's or principal's affairs". The Amended
Complaint does not allege any of these elements.
Similarly, "bribery in the third degree" (N.Y. Penal Law
§ 200.00), states that it is unlawful when a person "confers,
or offers or agrees to confer, any benefit upon a public
servant upon an agreement or understanding that such public
servant's vote, opinion, judgment, action, decision or exercise
of discretion as a public servant will thereby be influenced".
Again, the Amended Complaint fails to set forth the elements of
this "crime", including that the Arbitrator is a "public
In sum, the Amended Complaint does not sufficiently set forth
acts of "bribery" within either the federal or state bribery
laws so as to constitute predicate "racketeering acts".
The second type of predicate act that the plaintiffs rely on
to state a claim under RICO is wire fraud (see Amended
Complaint ¶ 293). If wire fraud is relied upon as the predicate
"racketeering activity", the plaintiffs must plead the fraud
element with particularity (see Fed.R.Civ.P. 9[b]). In Beck v.
Manufacturers Hanover Trust Co., 820 F.2d 46, 49-50 (2d Cir.
1987), cert. denied, 484 U.S. 1005, 108 S.Ct. 698, 98 L.Ed.2d
650 (1988), Judge Newman described the applicable standard in
pleading mail or wire fraud as predicate acts under RICO, as
"In general, the mail and wire fraud statutes
require, inter alia, a showing of intentional fraud
. . . [and] plaintiffs must . . . provide some
factual basis for conclusory allegations of intent.
. . . These factual allegations must give rise to a
`strong inference' that the defendants possessed
the requisite fraudulent intent.
A common method for establishing a strong
inference of scienter is to allege facts showing a
motive for committing fraud and a clear
opportunity for doing so. . . . Where motive is
not apparent, it is still possible to plead
scienter by identifying circumstances indicating
conscious behavior by the defendant, . . . though
the strength of the circumstantial evidence must
be correspondingly greater" (citations omitted).
The only allegation of wire fraud appears in paragraph 293 of
the Amended Complaint. The allegation is a mere conclusory
assertion that the defendants have committed wire fraud. No
facts are alleged showing a motive for committing fraud and a
clear opportunity to do so. In addition, the Amended Complaint
is devoid of any allegations of the participants, the place,
the method or any circumstances of the alleged fraud.
Accordingly, the complaint fails to sufficiently allege wire
fraud as a predicate act or "racketeering activity".
Based on the above, the Court finds that the plaintiffs have
failed to allege any predicate acts which could constitute a
"pattern of racketeering activity" to sustain a RICO cause of
action. Accordingly, the defendants' motion to dismiss the RICO
claim, is granted.*fn5
Although not specifically enumerated, it appears from the
Amended Complaint that the plaintiffs also allege conspiracy to
violate RICO under section 1962(d).
Section 1962(d) makes it unlawful to conspire to violate any
of its substantive provisions. Although there need not be proof
of overt acts to show a violation of section 1962(d), in order
"[t]o state a claim for RICO conspiracy, plaintiff must allege
that each defendant, by words or actions, manifested an
agreement to commit two predicate acts in furtherance of the
common purpose of the RICO enterprise" (First City Nat'l Bank &
Trust Co. v. FDIC, 730 F. Supp. 501, 509 [E.D.N.Y. 1990]
[McLaughlin, J.]). Bare or conclusory allegations of
participation in a conspiracy under section 1962(d) will not
avail on a motion to dismiss, and the plaintiff must plead
allegations that each defendant knowingly agreed to participate
in the conspiracy, particularly when the predicate acts alleged
are fraud (see Grunwald v. Bornfreund, 668 F. Supp. 128, 133
[E.D.N.Y. 1987]; see generally D. Smith & T. Reed, Civil RICO ¶
Significantly absent from the pleading are any allegations of
specific facts that each of the individual defendants, by words
or actions, manifested an agreement to commit two or more of
the predicate acts (see Morin v. Trupin, 711 F. Supp. 97, 111
[S.D.N.Y. 1989]). It is not clear from the face of the pleading
how, or even if, each defendant participated in the alleged
conspiracy to violate RICO, and the extent and nature of the
roles of each of the defendants. In addition, as stated above,
the plaintiffs have not stated a claim under any of RICO's
Accordingly, to the extent that the plaintiffs allege a claim
under section 1962(d) for conspiracy to violate RICO, the Court
finds that the Amended Complaint fails to state a viable claim
under 18 U.S.C. § 1962(d), and therefore that portion of the
plaintiffs' RICO claim, if alleged, is dismissed.
7. Statute of Limitations.
The defendants move to dismiss certain portions of the claims
asserted under 42 U.S.C. § 1981, 1983 and 1985, and RICO, as
well as the claims under CPLR Article 78.
The defendants move to dismiss only portions of claims and
not any claims in their entirety. As such, at this time, the
Court finds that questions of fact exist precluding the
dismissal of parts of the claims, based on the defense of
statute of limitations. In addition, the defendants fail to
articulate what claims or portions of claims are time barred
and simply allege, in conclusory terms, that the statute of
limitations is a bar.
The defendants move to dismiss the pendent state-law claims
in the event that the federal claims are dismissed. Although it
is difficult to discern the precise claims alleged under state
law, in the exercise of discretion, the Court nevertheless
exercises pendent jurisdiction over them, since the claim under
42 U.S.C. § 1983 has not been dismissed and the plaintiffs are
granted leave to replead some of the other federal claims in
any event (see United Mine Workers of Am. v. Gibbs,
, 86 S.Ct. 1130, 16 L.Ed.2d 218 ). Accordingly, the
defendants' motion to dismiss the pendent claims is denied.
The defendants move pursuant to Fed.R.Civ.P. 12(f), to strike
all redundant, immaterial and impertinent matter from the
Amended Complaint. Particularly objectionable to the defendants
are the phrases "counter intelligence", "minority hit list"
(Amended Complaint ¶¶ 22, 123-28, 149, 152 and 290) and "lame
ducks" (Amended Complaint ¶¶ 47, 50, 53 and 56). In addition,
the defendants contend that the complaint is "extremely
lengthy" and merely "repeats and realleges the same things over
and over" (Defendants' Memorandum of Law at p. 27).
In order to strike immaterial and impertinent matter from the
pleading, it must be demonstrated "that no evidence in
, 893 [2d Cir. 1976]),
that the allegations have no bearing on the issue, and that to
permit the allegations to stand would result in prejudice to
the movant (see Fuchs Sugars & Syrups, Inc. v. Amstar Corp.,
402 F. Supp. 636, 637-38 [S.D.N.Y. 1975]; see also 5A C. Wright
& A. Miller, Federal Practice and Procedure § 1382, at pp.
683-85 [2d ed. 1990] [such motions "will be denied unless the
allegations have no possible relation to the controversy"]).
While the defendants are correct insofar as the Amended
Complaint "repeats and realleges the same things over and over"
(Defendants' Memorandum of Law at p. 27), they have not
demonstrated that the allegations sought to be stricken have no
relation to the controversy or that prejudice would result to
them if the allegations remain in the pleading.
Accordingly, the motion of the defendants to strike matter
from the pleading is denied.
(1) The motion of the plaintiffs Ella Hill, Gina Marsh and
Jane Best-Simpson to withdraw from this action and be
eliminated as named plaintiffs is granted. The caption of this
action shall be amended accordingly.
(2) The motion of the defendants to dismiss the claims
asserted under 42 U.S.C. § 1981, is granted, and therefore the
first, third and fourth causes of action are dismissed in their
entirety, as a matter of law.
(3) The motion of the defendants to dismiss the claims
asserted under 42 U.S.C. § 1985, is granted, with leave to
(4) The motion of the defendants to dismiss the claims
asserted under 42 U.S.C. § 1983, is denied.
(5) The motion of the defendants to dismiss the claims under
section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794,
is granted, and these claims, to the extent that they are pled
at all, are dismissed, with leave to replead.
(6) The motion of the defendants to dismiss both the
substantive and conspiracy claims under the Racketeer
Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962, is
granted, and therefore the fifth cause of action is dismissed,
with leave to replead.
(7) The motion of the defendants to dismiss based on the
defense of statute of limitations, is denied.
(8) The motion of the defendants to dismiss the pendent
state-law claims, is denied.
(9) The motion of the defendants to strike all redundant,
immaterial or impertinent matter from the Amended Complaint
pursuant to Fed.R.Civ.P. 12(f), is denied.
In view of the lack of opposition to this motion to dismiss
and the implications which may be derived therefrom, the
plaintiffs are directed to serve and file a Second Amended
Complaint within forty-five (45) days from this date,
consistent with the findings and dispositions contained in this
opinion. The Clerk of the Court shall serve a copy of this
opinion and order on the attorney for the plaintiffs by
certified mail, return receipt requested, on or before April 2,
1991. In the event that the plaintiffs' fail to serve and file
the Second Amended Complaint within this time, the defendants
may move to dismiss the causes of action that have been
dismissed in this order, which dismissal will be with