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MOSCOWITZ v. BROWN

May 3, 1994

MOSCOWITZ, Plaintiff,
v.
LEE BROWN, NYC POLICE DEPT., DAVID DINKINS, NYC, JOSEPH FERNANDEZ, THOMAS RYAN, NYC BOARD OF EDUC., Defendants.


PRESKA


The opinion of the court was delivered by: LORETTA A. PRESKA

LORETTA A. PRESKA, U.S.D.J.

 Defendants move to dismiss the Third Amended Complaint without leave to replead pursuant to Fed. R. Civ. P. 8(a)(2), (e)(1) and, in the alternative, Fed. R. Civ. P. 12(b). By Order dated February 7, 1994, counsel for both parties were notified that the 12(b)(6) motion was converted to a motion for summary judgment on certain specified claims, because matters outside the pleadings were submitted. For the reasons hereinafter stated, the motion to dismiss and the motion for summary judgment are granted.

 Background

 This action was commenced pro se on April 23, 1992. At the initial pretrial conference held on November 12, 1992, pro se plaintiff was ordered to file an amended complaint, as the original complaint failed to meet the requirements of Fed. R. Civ. P. 8. The first amended complaint was filed on January 6, 1993. After the next pretrial conference, the court issued an order on January 20, 1993 striking pages 177 to 201 of the amended complaint pursuant to Fed. R. Civ. P. 12(f) and granting pro se plaintiff leave to file a second amended complaint. Plaintiff was now represented by counsel and has been up to the present. The second amended complaint was filed on March 15, 1993. The case was reassigned to this Judge on March 26, 1993. Finding that the complaint still failed to meet the requirements of Rule 8, this Court issued an order on April 8, 1993 again granting plaintiff leave to file a third amended complaint. The Third Amended Complaint was filed on April 23, 1993, and defendants move to dismiss this complaint.

 Plaintiff, a former New York City police officer, was dismissed from the force on January 14, 1991. Memorandum of Law in Support of Defendants' Motion to Dismiss at 3 ("Defendants' Mem."). Plaintiff subsequently obtained employment from the Board of Education of the City of New York and was fired shortly thereafter. Defendants' Mem. at 4. Plaintiff's demands for relief are based on the following accusations, among others: religious discrimination; harassment; termination without due process of law; retaliation infringing on free speech rights; failure to issue a gun permit; false arrest; surveillance of plaintiff in the United States and Israel by the New York City Police Department's ("NYPD") Intelligence Division; malicious prosecution and abuse of process; defamation; personal injury as a result of gang warfare that occurred on a "pre-arranged" assignment by the NYPD; insider trading, prostitution, sexual exploitation and narcotics at Goldman Sachs & Co. ("GSC") and the NYPD, which, according to plaintiff, is "an effective subsidiary" of GSC; and violation of freedom of information rights.

 Plaintiff's claims are numerous -- he alleges civil rights violations under Title VII, 42 U.S.C. §§ 2000e et seq.; constitutional violations of his rights under the First, Second, Fourth and Fourteenth Amendments; violation of his rights under the Freedom of Information Act; and various state law claims. In addition to monetary relief, reinstatement and back pay, plaintiff seeks a declaratory judgment as to his rights, a permanent injunction restraining defendants from maintaining a discriminatory policy against Orthodox Jewish persons and class certification. The class which plaintiff asserts he represents is composed of all Orthodox Jewish persons who are or might be employed by the defendants. It should be noted that the first three complaints did not contain a request for class certification.

 Discussion

 A. Rule 8

 In pertinent part, Rule 8 provides that a pleading shall contain "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), and that "each averment of a pleading shall be simple, concise, and direct." Fed. R. Civ. Proc. 8(e)(1). The averments should be plain in order to give the adverse party fair notice of the claims asserted and they should be short because "unnecessary prolixity in a pleading places an unjustified burden on the court and the party who must respond to it because they are forced to select the relevant material from a mass of verbiage." Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988) (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1281, at 365 (1969)).

 Where a complaint fails to meet the requirements of Rule 8, a court may strike those portions that are redundant or immaterial pursuant to Fed. R. Civ. P. 12(f), or it may dismiss the complaint, either granting leave to amend under Fed. R. Civ. P. 15(a) or dismissing outright. Salahuddin, 861 F.2d at 42. The court has the discretion to deny leave to amend "and its decision is not subject to review on appeal except for abuse of discretion . . . ." Id. (quoting 3 Moore's Federal Practice P 15.08[4] at 15-64 (2d ed. 1987)). However, the Second Circuit emphasized that leave to amend "shall be freely given when justice so requires." Id. at 42. In this vein and given the preference for adjudication of cases on their merits, the Second Circuit has stated

 
it will generally be an abuse of discretion to deny leave to amend when dismissing a nonfrivolous original complaint on the sole ground that it does not constitute the short and plain statement required by Rule 8.

 Id. at 42.

 Notwithstanding, "where leave to amend has been given and the successive pleadings remain prolix," the court could dismiss the complaint without leave to amend. Id., see Prezzi v. Schelter, 469 F.2d 691 (2d Cir. 1972) (per curiam), cert. denied, 411 U.S. 935, 36 L. Ed. 2d 396, 93 S. Ct. 1911 (1973) (finding dismissal of prolix and incomprehensible complaint appropriate where amended complaint failed to cure prolixity); Barsella v. United States, 135 F.R.D. 64 (S.D.N.Y. 1991) (dismissing prolix, incoherent pro se complaint with prejudice where leave to replead had previously been granted); Chodos v. F.B.I., 559 F. Supp. 69 (S.D.N.Y.), aff'd, 697 F.2d 289 (2d Cir. 1982), cert. denied, 459 U.S. 1111, 74 L. Ed. 2d 962, 103 S. Ct. 741 (1983) (same); Prezzi v. Berzak, 57 F.R.D. 149 (S.D.N.Y. 1972) (same).

 In this case, plaintiff has been given leave to replead three times. Notwithstanding, the Third Amended Complaint fails to meet the requirements of Rule 8. Although 154 pages were omitted, it remains "a labyrinthian prolixity of unrelated and vituperative charges." Prezzi v. Schelter, 469 F.2d 691, 692 (2d Cir. 1972) (per curiam), cert. denied, 411 U.S. 935, 36 L. Ed. 2d 396, 93 S. Ct. 1911 (1973). *fn1" Moreover, unlike Salahuddin, 861 F.2d at 42, where leave to replead was granted to a pro se plaintiff who submitted a "nonfrivolous original complaint," and unlike the other cases referred to above, plaintiff was not pro se when he submitted both the second and third amended complaints. Therefore, for the foregoing reasons, the Third Amended Complaint is dismissed without leave to replead.

 In the alternative, plaintiff's claims are barred by the applicable statute of limitations period, for failure to state a claim, or for failure to demonstrate a genuine issue of material fact as set forth below.

 B. Alternative Grounds for Dismissal

 In deciding a motion to dismiss pursuant to Rule 12(b)(6), well-pleaded factual allegations of the complaint must be accepted as true. See e.g., Square D Co. v. Niagara Frontier Tariff Bureau, 476 U.S. 409, 411, 90 L. Ed. 2d 413, 106 S. Ct. 1922 (1986); Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974); Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). In considering such motions, the complaint shall be read liberally, drawing all inferences in favor of the pleader. Conley, 355 U.S. at 45-46. Indeed, the motion to dismiss should be denied "unless it appears to a certainty that a plaintiff can prove no set of facts entitling him to relief." Ryder Energy Dist. Corp. v. Merrill Lynch Commodities, 748 F.2d 774, 779 (2d Cir. 1984). Despite the liberality of this standard, only the "well-pleaded" factual allegations will be taken as true. Papasan v. Allain, 478 U.S. 265, 283, 106 S. Ct. 2932, 2943, 92 L. Ed. 2d 209 (1986); Haviland v. J. Aron & Co., 796 F. Supp. 95, 97 (S.D.N.Y. 1992), aff'd, 986 F.2d 499 (1992) cert. denied, 123 L. Ed. 2d 650, 113 S. Ct. 1945 (1993). Baldly conclusory statements that fail to give notice of the basic events of which the plaintiff complains need not be credited by the court. Haviland, 796 F. Supp. at 97; Duncan v. AT & T Communications, 668 F. Supp. 232, 234 (S.D.N.Y. 1987) (citing Barr v. Abrams, 810 F.2d 358, 363 (2d Cir. 1987)).

 Pursuant to Fed. R. Civ. R. 56(c), a trial judge may grant summary judgment if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986). The substantive law identifies which facts are material. Id. In determining whether any genuine issue of material fact is presented, a court must resolve all ambiguities, and draw all reasonable inferences, against the moving party. Walther v. Bank of New York, 772 F. Supp. 754 (S.D.N.Y. 1991). However, once the moving party has met its initial burden of demonstrating the absence of a material issue of fact "its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Electrical Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986).

 1. Title VII

 Plaintiff brings this action, inter alia, pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., alleging that defendants discriminated against him on the basis of religion. Third Amended Complaint at I. Defendants argue, inter alia, that the Title VII claim should be dismissed as time-barred, or, in the alternative, dismissed as to ...


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