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WALTIER v. NEW YORK POLICE DEPT.

June 28, 1994

BERNARD WALTIER, Plaintiff,
v.
NEW YORK POLICE DEPARTMENT, Defendant.



The opinion of the court was delivered by: KIMBA M. WOOD

 WOOD, D.J.

 Presently before the court is defendant's motion to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure on the ground that plaintiff, who is appearing pro se, has failed to state a claim on which relief can be granted. For the reasons stated below, the court hereby grants defendant's motion.

 BACKGROUND

 Prior to August 1991 plaintiff Bernard Waltier was issued a target pistol permit and a restricted carry pistol permit pursuant to Article 400 of the New York State Penal Law. Apparently, possession of these permits enabled him to work as an armed guard. On August 23, 1991 plaintiff was working as an armed guard when he shot another individual, allegedly in order to save his own life. Complaint, paragraph 7. Plaintiff was arrested, tried and eventually acquitted in relation to the incident. He received a Certificate of Disposition on or about September 21, 1992. Complaint, paragraph 7. On October 23, 1992 the License Division of the defendant New York Police Department ("License Division") wrote plaintiff to inform him that pursuant to Title 38, Chapter 5, Section 5-22 of the Official Compilation of the Rules of the City of New York ("R.C.N.Y.") his pistol permits had been revoked based on the circumstances surrounding his arrest. The correspondence informed plaintiff that he had thirty days within which to request an administrative hearing on the matter. Response to Motion to Dismiss, Exhibit Z.

 In New York City, the pistol permit revocation process works as follows. Under § 400.00(11) of the New York State Penal Law, the New York City licensing authority (i.e., defendant) may revoke or cancel a pistol permit at any time. N.Y. Penal Law § 400.00(11) (McKinney 1994). Under 38 R.C.N.Y. § 5-30 (1991), a handgun license is subject to review and potential suspension or revocation whenever the licensee is arrested, summoned (except for traffic infractions), indicted, or convicted in any jurisdiction. All such incidents are reviewed and evaluated by License Division investigators. Id. If a license is suspended or revoked, the licensee may request a hearing to appeal the decision within thirty days of receiving notice. Id. At such a hearing the licensee has a "right to call witnesses, conduct examinations and cross-examinations, to present evidence, and make objections, motions and arguments." 38 R.C.N.Y. § 15-25. The hearing officer's decision must be rendered in written form, including a statement of issues, findings of fact, conclusions of law, and the basis of the decision. 38 R.C.N.Y. § 15-28. The hearing officer's decision may be appealed in writing to the Commanding Officer of the License Division. 38 R.C.N.Y. § 15-30. The Commanding Officer's decision may in turn be appealed in the New York State courts. N.Y. Civ. Prac. L. & R. § 7801 et. seq. (McKinney 1981). Plaintiff chose to forego the established review process following notice of revocation of his pistol permits, choosing instead to bring this suit. Pending a decision on the present motion to dismiss, defendant agreed to hold in abeyance the hearing to review revocation of plaintiff's pistol permits.

 Plaintiff brings this action pro se pursuant to 42 U.S.C. § 1983 and appears to make two claims challenging the foregoing pistol permit revocation procedures, pursuant to which he was deprived of his permits. First, he claims that the procedures provide for revocation without notice and a prior opportunity to be heard, in contravention of the due process clause of the Fourteenth Amendment. Second, he claims that a revocation hearing held to inquire into circumstances for which he was previously charged and acquitted would violate the double jeopardy clause of the Fifth Amendment. Plaintiff seeks damages for injuries suffered as a result of the revocation of his pistol permits, most importantly the loss of earnings, *fn1" damage to his reputation, and the cost of this lawsuit.

 In response, defendant argues that plaintiff fails to state a valid claim on the following grounds: 1) plaintiff's complaint is not ripe because the administrative action that he challenges is not final; 2) the post-deprivation hearing available to licensees whose pistol permits have been revoked or suspended satisfies procedural due process requirements; and 3) the double jeopardy doctrine does not apply to civil administrative matters such as the revocation of a pistol permit.

 DISCUSSION

 On a motion to dismiss, a district court must construe the complaint in favor of the pleader, and accept as true the factual allegations made in the complaint. See LaBounty v. Adler, 933 F.2d 121, 123 (2d Cir. 1991). The function of a district court in considering a motion to dismiss is "not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient." Goldman V. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985). This principle is to be applied with particular care when the plaintiff is appearing pro se. The court is obliged to construe pro se complaints liberally. Labounty, 933 F.2d at 122. Applying this standard of review, the court grants defendant's motion to dismiss for the reasons set forth below.

 I. PROCEDURAL DUE PROCESS

 A

 As a threshold matter, the court must consider defendant's assertion that plaintiff's procedural due process claim is not ripe for adjudication because the deprivation is not final. Defendant argues that plaintiff cannot claim a deprivation of due process until he has availed himself of the post-deprivation hearing and obtained a final determination regarding his pistol permits.

 Notwithstanding its statements to the contrary, defendant's finality argument relates to administrative exhaustion rather than ripeness. The Supreme Court has explained the ...


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