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JEMZURA v. PSC

July 27, 1997

GEORGE JEMZURA, Plaintiff, against PUBLIC SERVICE COMMISSION, NEW YORK STATE ELECTRIC & GAS AND EMPLOYEES, JOHN O'MARA, INDIVIDUALLY, CATHERINE DUDLEY, INDIVIDUALLY, EUGENE CONNELL, INDIVIDUALLY, CHERYL CALLAHAN, INDIVIDUALLY, JOHN DRAGHI, INDIVIDUALLY, DIANE SIMPSON, INDIVIDUALLY, Defendants.


The opinion of the court was delivered by: KAHN

MEMORANDUM-DECISION AND ORDER

 I. BACKGROUND

 Presently before the Court are two separately filed motions, one by defendant New York State Electric & Gas ("NYSEG") and its counsel (Dianne M. Simpson and John Draghi), the other by Public Service Corporation ("PSC"), its employees (John O'Mara, Catherine Dudley, Eugene Connell, and Cheryl Callahan). Both NYSEG and PSC seek to have plaintiff's 42 U.S.C. § 1983 dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) (hereinafter Fed. R. Civ. P.) or barred by the doctrine of res judicata. Moreover, both NYSEG and PSC seek sanctions against plaintiff, pursuant to Fed. R. Civ. P. 11, and an injunction, pursuant to 28 U.S.C. § 1651, preventing him from bringing further pro se actions against them for claims relating to the alleged wrongful failure to install electrical distribution lines. Additionally, NYSEG asserts that plaintiff's claim is barred by collateral estoppel, while PSC contends that plaintiff's claim should be dismissed pursuant to Fed. R. Civ. P. 12(b)(1) and 12(h)(3).

 The instant actions arise out of some twenty years of litigation by plaintiff and his brother, Raymond Jemzura, to compel NYSEG to provide an electrical line extension on land owned by Raymond Jemzura, but against which plaintiff holds a mortgage. Plaintiff claims that NYSEG denied him electrical service, thereby depriving him and his brother of farming and business opportunities, including an alleged multi-million dollar spring water enterprise. Thus, plaintiff asserts a 28 U.S.C. § 1983 claim on the basis that defendants' failure to perform official duties amounted to a denial of due process and equal protection under the law.

 Because NYSEG and PSC moved to dismiss under Fed R. Civ. P. 12(b)(6), and because the parties relied on supplemental supporting materials extrinsic to the Complaint, the Court, pursuant to Fed R. Civ. P. 12(b), will treat these motions as motions for summary judgment under Fed. R. Civ. P. 56. As the parties are well acquainted with the details of this case, the Court will not elaborate on its facts and procedural history any further.

 II. DISCUSSION

 Given the protracted history of this litigation and the existence of privity between plaintiff and his brother as a result of the mortgage plaintiff holds on his brother's farm, the Court notes that the instant action, though initiated by plaintiff, is affected by all previous holdings involving either him or his brother, Raymond Jemzura.

 A. The Court's Jurisdiction to Hear Plaintiff's § 1983 Claim

 A Court must have jurisdiction before deciding issues of fact or law. See Bell v. Hood, 327 U.S. 678, 682, 90 L. Ed. 939, 66 S. Ct. 773 (1945). As stated in a prior case involving the Jemzura brothers, "§ 1983 does not, by itself, confer jurisdiction: it is a remedial rather than a jurisdictional statute." See Jemzura v. New York State Elec. & Gas Corp., (Case No. 91-CV-0843) (Cholakis, J.) applying Hagans v. Lavine, 415 U.S. 528, 535, 39 L. Ed. 2d 577, 94 S. Ct. 1372 (1974). Accordingly, plaintiff must posit either a federal question under 28 U.S.C. § 1331 or a diversity issue under 28 U.S.C. § 1332(a) for this Court to entertain his claim against PSC or NYSEG. Id. Here, since plaintiff has not asserted a diversity issue against either of the defendants, the Court will only hear the instant action if "a federal question is presented on the face of plaintiff's properly pleaded complaint." See Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 96 L. Ed. 2d 318, 107 S. Ct. 2425 (1987); Cf. United Mine Workers of America v. Gibbs, 383 U.S. 715, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966) (holding that where no colorable claim can be construed from a Complaint, it should be dismissed).

 Plaintiff contends that PSC and NYSEG's failure to extend electrical distribution lines to the property at issue amounted to a denial of equal protection and due process. Because plaintiff's Complaint implicates constitutional issues, the Court will consider the merits of his § 1983 claim.

 B. Merits of Plaintiff's § 1983 Claim

 As an initial matter, the Court notes that under § 1983 assertions of conspiracy must be pleaded with specificity. See Alfaro Motors Inc. v. Ward, 814 F.2d 883, 886 (2d Cir. 1987). Plaintiff's Complaint, however, contains nothing more than vague and fanciful allegations of a conspiracy between NYSEG, PSC, and their employees to deprive him of his constitutional rights. While the Court recognizes that plaintiff is proceeding pro se, the facts he alleges ar insufficient to support an allegation of conspiracy under § 1983. See Zemsky v. City of New York, 821 F.2d 148, 151 (2d Cir.), cert. denied, 484 U.S. 965, 98 L. Ed. 2d 396, 108 S. Ct. 456 (1987) (affirming dismissal of pro se § 1983). Still, the Court will address the remainder of plaintiff's § 1983 claims.

 It is a well-settled fact that to assert a § 1983 claim, plaintiff must show that a person acting under color of state law violated his rights under the United States Constitution or statute. See Adickes v. Kress & Co., 398 U.S. 144, 150, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970); Hebron v. Public Service Comm'n, No. 92-CV-7681, slip op. at 4 (S.D.N.Y. 1993), aff'd, No. 93-7197 (2d Cir. 1993). Thus, the Court's first inquiry is "whether the plaintiff has been deprived of a right 'secured by the Constitution and laws.'" Here, despite plaintiff's claim that defendants violated his Fourteenth Amendment rights, plaintiff has not alleged any purposeful discrimination to support such a claim. Moreover, the Court cannot identify any process that plaintiff is or was due. See Baker v. McCollan, 443 U.S. 137, 140, 61 L. Ed. 2d 433, 99 S. Ct. 2689 (1979).

 1. Plaintiff's § 1983 Claim Against PSC

 In Will v. Michigan Dept of State Police, 491 U.S. 58, 71, 105 L. Ed. 2d 45, 109 S. Ct. 2304 (1989), the Court established that neither the State nor state officials acting in their official capacities *fn1" are "persons" under § 1983. PSC is a state agency, and as such neither it nor its employees are "persons" within the meaning of § 1983. See Id.; Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 243, 87 L. Ed. 2d 171, 105 S. Ct. 3142 (1985). Rather, as the Court previously determined in Raymond Jemzura v. New York State Elec. & Gas Corp., (Case No. 91-CV-0843) slip op. at 12, both PSC and its employees have sovereign immunity under the Eleventh Amendment pursuant to Will. 491 U.S. at 71. See e.g. Mount Healthy City School Dist. Bd. of Educ. ...


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