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September 7, 1996


The opinion of the court was delivered by: SPATT

 SPATT, District Judge.

 The plaintiff pro se Victor Coffey (the "plaintiff" or "Coffey") commenced this action on March 20, 1995, against the United States and the United States Postal Service (the "defendants" or the "Postal Service"), claiming employment discrimination and violations of his constitutional rights. Presently before the Court is a motion by the defendants to dismiss the complaint, pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a cause of action upon which relief may be granted. In the alternative the defendants move the Court for an order pursuant to Fed. R. Civ. P. 56 granting summary judgment in their favor. At this stage of the proceedings, the Court will assess the legal sufficiency of the complaint under the standard guiding Rule 12(b)(6) and determine whether repleading of the pro se complaint is appropriate. The Court will not, at this juncture, convert the motion to a summary judgment motion or consider affidavits and documents outside of the pleadings that have been submitted by the parties.


 The pro se complaint describes alleged wrongful treatment of Coffey while he was in the employ of the U.S. Postal Service and alleges that this conduct is actionable in district court under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b) et seq. and 28 U.S.C. §§ 2671-2680. Specifically, Coffey alleges that he was the victim of employment discrimination because of his race which resulted in the loss of privileges, seniority and ultimately his job. The complaint also alleges that Coffey was permanently disabled as a result of the Postal Service's refusal to comply with orders by Coffey's physician that he be put on "lite" [sic] duty due to a back injury that he sustained on the job. The complaint further alleges that Coffey was subjected to handicap discrimination after becoming disabled.

 According to the complaint, the Postal Service deprived Coffey of his constitutional right to the "pursue of happiness" [sic]. Coffey's complaint also alleges that he was deprived of his civil rights because he had no way to appeal the Postal Service's decision to terminate him.

 The complaint expressly seeks relief under the Federal Tort Claims Act, 28 U.S.C. § 1346(b) and 28 U.S.C. §§ 2671-2680. Read liberally, see Haines v. Kerner, 404 U.S. 519, 520, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972)), the pro se complaint may also be construed to seek relief under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-16 et seq. and/or the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq, in that it alleges employment discrimination based on race and disability.

 In this action, Coffey seeks money damages in the amount of $ 2,140,000.00 for the alleged loss of his home and other personal property, which loss he claims occurred because of the Postal Service's delay in reimbursement of back pay, as well as his alleged pain and suffering. In addition, the plaintiff seeks $ 20,000,000.00 based on the employment discrimination claims.

 The complaint identifies the plaintiff as a former Postal Service employee who worked in the Riverhead Post Office from the mid-1980's until 1987 when his position was "excessed" and he was transferred to the Patchogue Post Office where he worked until he was terminated. The date of the plaintiff's employment termination is not specified in the complaint, but the last complained of conduct, namely alleged discrimination in regard to "Retreat Rights" and dissatisfaction with Merit Systems Protection Board proceedings and determinations, is described as occurring in the year 1994.

 The defendants argue that the complaint should be dismissed for the following reasons: (1) the plaintiff's claim for job-related injuries under the FTCA is barred by the Federal Employees' Compensation Act ("FECA"), 5 U.S.C. § 8108 et seq. ; (2) the claim for money damages cannot be maintained against the United States in the absence of an express waiver of sovereign immunity; (3) the prerequisite administrative remedies were not exhausted with regard to the claims of racial and handicap discrimination; and (4) to the extent that the plaintiff appeals from the determinations of the Merit Service Protection Board, such an action cannot be maintained in this Court.

 In response to the defendants' motion, the plaintiff pro se has submitted a statement reiterating the allegations set forth in the complaint and asserting that prior to filing this action he had exhausted all administrative remedies available to him. However, it is not clear to the Court which, if any, of the plaintiff's claims were pursued through administrative proceedings prior to commencing this law suit.


 1. The Rule 12(b)(6) standard

 On a motion to dismiss for failure to state a claim, "the court should not dismiss the complaint pursuant to rule 12(b)(6) unless it appears 'beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Goldman v. Belden, 754 F.2d 1059 (2d Cir. 1985)(quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)); see also IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1052-53 (2d Cir. 1993). The Second Circuit stated that in deciding a Rule 12(b)(6) motion a Court may consider "only the facts alleged in the pleadings, documents attached as exhibits or incorporated by reference in the pleadings and matters of which judicial notice may be taken". Samuels v. Air Transport Local 504, 992 F.2d 12, 15 (2d Cir. 1993); see also Rent Stabilization Ass'n of the City of New York v. Dinkins, 5 F.3d 591, 593-94 (2d Cir. 1993) (citing Samuels, 992 F.2d at 15).

 It is not the Court's function to weigh the evidence that might be presented at a trial, the Court must merely determine whether the complaint itself is legally sufficient, see Goldman, 754 F.2d at 1067, and in doing so, it is well settled that the court must accept the allegations of the complaint as true, see La Bounty v. Adler, 933 F.2d 121, 123 (2d Cir. 1991); Procter & Gamble Co. v. Big Apple Indus. Bldgs, Inc., 879 F.2d 10, 14 (2d Cir. 1989), cert. denied, 493 U.S. 1022, 107 L. Ed. 2d 743, 110 S. Ct. 723 (1990), and construe all reasonable inferences in favor of the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974); Bankers Trust Co. v. Rhoades, 859 F.2d 1096, 1099 (2d Cir. 1988), cert. denied, 490 U.S. 1007, 104 L. Ed. 2d 158, 109 S. Ct. 1642 (1989).

 The Court is mindful that under the modern rules of pleading, a plaintiff need only provide "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 "all pleadings shall be so construed as to do substantial justice". Fed. R. Civ. P. 8(f).

 2. Principles regarding pro se litigants

 In this regard, the Court is mindful that the plaintiff is proceeding pro se and that "the complaint must be 'liberally construed' in favor of the plaintiff[] and held to 'less stringent standards than formal pleadings drafted by lawyers'. Hughes v. Rowe, 449 U.S. 5, 9, 66 L. Ed. 2d 163, 101 S. Ct. 173 (1980) (per curiam) (citing Haines v. Kerner, 404 U.S. 519, 520, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972)); Ferran v. Town of Nassau, 11 F.3d 21, 22 (2d Cir. 1993). The Court recognizes that it must make reasonable allowances so that a pro se plaintiff does not forfeit his rights by virtue of his lack of legal training. Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983). But the court is also aware that ...

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