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ROACH v. CITY OF NEW YORK

January 24, 1992

VIOLA M. ROACH, Plaintiff, against CITY OF NEW YORK, THE HUMAN RESOURCES ADMINISTRATION OF THE CITY OF NEW YORK, and MRS. P. ROSEN, Director of the Center of the Human Resources Administration of the City of New York known as Rockaway Center # 79, Defendants.


The opinion of the court was delivered by: ROBERT P. PATTERSON, JR.

 ROBERT P. PATTERSON, JR., U.S.D.J.

 This is an action commenced on September 9, 1988 by Plaintiff pro se, seeking relief under 42 U.S.C. §§ 1981 and 1983. Defendants move to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6). Plaintiff cross-moves for summary judgment pursuant to Fed. R. Civ. P. 56. For the reasons set forth below, Defendants' motion is granted as to Defendants City of New York and Human Resources Administration of the City of New York and denied as to Defendant Rosen. Plaintiff's cross-motion will not be decided until further papers are are submitted.

 BACKGROUND

 The facts as alleged in the complaint are as follows. On January 24, 1977, Plaintiff was appointed to the position of Clerk *fn1" in the New York City Human Resources Administration ("HRA"), at the Wyckoff Center in Brooklyn. Plaintiff performed basic office tasks, such as filing case records and answering phones; her satisfactory performance was reflected in the evaluations she received during the course of her employment and in her eventual appointment to permanent civil service status. On January 8, 1985, Plaintiff was reassigned from the Wyckoff Center to Rockaway Center #79 in Queens. Plaintiff continued to perform her assigned duties satisfactorily.

 On or about February 13, 1986, Defendant Rosen, Director of Rockaway Center #79, acting with others, ordered Plaintiff to see a Dr. Gorham, threatening to bring disciplinary action against Plaintiff should she fail to do so. Because of these threats, Plaintiff visited Dr. Gorham. Dr. Gorham, a psychiatrist, examined Plaintiff both on February 14, 1986 and on February 21, 1986, giving Plaintiff certain tasks to perform and asking her questions. Dr. Gorham made medical findings and recommendations. On February 24, 1986, Plaintiff returned to work at Rockaway Center #79, continuing to perform her regular duties. On February 26, 1986, Plaintiff was called into Defendant Rosen's office and was told that, at the direction of Dr. Gorham, she was to leave work and not to return. Plaintiff left, but she returned on February 27, 1986 to secure from Defendant Rosen in writing the substance of Plaintiff's February 26 conversation with Defendant Rosen. Defendant Rosen referred Plaintiff to another supervisor, Serena Gaynor. On February 28, 1988, Ms. Gaynor told Plaintiff to follow the directives of Defendant Rosen and not to return to work. From March 3, 1986 on, Plaintiff did not return to Rockaway Center #79.

 Approximately one month later, during the first week of April 1986, Plaintiff went to the HRA Office of Personnel Services at 271 Church Street, New York, New York 10007 to seek assignment to another center. At that time, Plaintiff learned that sometime after March 3, 1986, pursuant to Dr. Gorham's recommendation, she had been placed on medical leave of absence by Defendants, acting through Jacqueline Byrd. Plaintiff did not want to be placed on medical leave. At no time was Plaintiff served with the following, as required under New York law: (1) a written statement of the facts relied upon by Defendants for the judgment that Plaintiff was not mentally fit to perform her duties; (2) notice of the fact that she might be placed on medical leave; (3) after Dr. Gorham's determination, written notice of the reasons for her placement on medical leave, the proposed date on which such leave was to commence, and a notification of Plaintiff's rights under the procedure by which she was to be placed on medical leave. See N.Y. Civ. Serv. Law § 72 (McKinney 1983 & 1991 Supp.). Service of the written notice would have triggered a ten-day period, during which Plaintiff could have objected to the imposition of the proposed leave of absence and requested a predisposition hearing. Had she so objected, the imposition of medical leave would have been held in abeyance until a final determination could be made. See id.

 On July 7, 1986, Plaintiff made a request pursuant to the New York State Freedom of Information Act for a copy of Dr. Gorham's medical findings and recommendations. On July 20, 1986, Defendants gave Plaintiff copies of two memoranda written by Dr. Gorham and addressed to Serena Gaynor, dated February 14, 1986 and February 21, 1986. The memoranda listed the medical findings and recommendations made by Dr. Gorham upon his examination of Plaintiff and stated in part: "Mrs. Roach clearly has deficits in memory and cognition which will seriously interfere with job performance"; "I recommend neurological consultation with special attention to cognition and memory"; and "I continue to recommend medical leave with a neurological work up." On January 28, 1987, Plaintiff asked Defendants to allow Plaintiff come back to work. On June 5, 1987, Defendants terminated Plaintiff's employment with HRA. *fn2" Plaintiff alleges that she "lost her rights to contest Defendants actions placing her on an involuntary medical leave of absence" and that she "also lost salary and benefits." Complaint paras. 58, 59.

 DISCUSSION

 1. Defendants' Motion to Dismiss

 A complaint should not be dismissed under Rule 12(b)(6) for failure to state a claim unless it appears beyond doubt that the Plaintiff can prove no set of facts in support of her claim that would entitle her to relief. See Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). When passing on a motion to dismiss, the court must accept the allegations in the complaint as true and construe them in favor of the pleader. See Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974); Cruz v. Beto, 405 U.S. 319, 322, 31 L. Ed. 2d 263, 92 S. Ct. 1079 (1972). Moreover, a pro se complaint is held "to less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520-21, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972). Applying these standards, this Court finds that the complaint states a cause of action only against Defendant Rosen for a violation of Plaintiff's rights to procedural due process. *fn3"

 Plaintiff's procedural due process claims against the City of New York and HRA come under the doctrine set forth by the Supreme Court in Monell v. New York City Department of Social Services, 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). In Monell, the court held that a local government is subject to suit under § 1983 only "when execution of the government's policy or custom. . . inflicts the injury." Id. at 694 (emphasis added). Plaintiff does not allege that a municipal policy, practice, or custom caused the violation of her rights. In fact, the crux of her complaint is that policy was not followed in her case. Accordingly, Plaintiff's procedural due process claims against the City of New York and HRA are dismissed. *fn4"

 Plaintiff also claims a violation of procedural due process by Defendant Rosen on the grounds that Rosen did not follow the procedures in section 72 of the New York Civil Service Law. Defendants base their argument for dismissal of Plaintiff's procedural due process claim on the premise that Defendants' actions in this case were random and unauthorized. They argue that it is impossible for the State to have provided a predeprivation hearing, since it could not predict when such a violation of section 72 would occur. Defendants rely heavily on Marino v. Ameruso, 837 F.2d 45, 47 (2d Cir. 1988), in which the court found that an evidentiary error by the Administrative Law Judge in a predeprivation hearing that allegedly resulted in the loss of the plaintiff's job was a random and unauthorized action for which postdeprivation procedures were adequate.

 Plaintiff relies on decisions of the United States Supreme Court in Zinermon v. Burch, 494 U.S. 113, 110 S. Ct. 975, 108 L. Ed. 2d 100 (1990) (no predeprivation hearing provided to plaintiff although procedure appropriate for a person of plaintiff's alleged incompetence existed), and the Second Circuit in Patterson v. Coughlin, 761 F.2d 886 (2d Cir. 1985) (predeprivation procedure existed under Department of Correctional Services regulations but those regulations were not followed), cert. denied, 474 U.S. 1100, 88 L. ...


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