A. Standard for a Motion to Dismiss:
1. Dismissal under Rule 12(b)(6):
The court should not dismiss on a Rule 12(b)(6) motion unless it appears clear that the plaintiff cannot in any way establish a set of facts to sustain his claim which would permit relief. Hughes v. Rowe, 449 U.S. 5, 10, 66 L. Ed. 2d 163, 101 S. Ct. 173 (1980); Bass v. Jackson, 790 F.2d 260, 262 (2d Cir. 1986). When deciding a motion to dismiss, the Court will accept as true all factual allegations in the complaint and construe them favorably to the plaintiff. LaBounty v. Adler, 933 F.2d 121, 123 (2d Cir.1991). The Court also may consider all papers and exhibits appended to the complaint as well as any matters of which judicial notice may be taken. Hirsch v. Arthur Andersen & Co., 72 F.3d 1085, 1092 (2d Cir.1995).
The Court notes with emphasis its obligation to afford plaintiff every favorable inference arising from his pro se status, as well as from his position as non-movant on this motion to dismiss. To be sure, because pro se plaintiffs are often unfamiliar with the formalities of pleading requirements, "the Supreme Court has instructed the district courts to construe pro se complaints liberally and to apply a more flexible standard in determining the sufficiency of a pro se complaint than they would in reviewing a pleading submitted by counsel." Platsky v. CIA, 953 F.2d 26, 28 (2d Cir. 1991).
With this standard in mind, the Court proceeds to determine whether plaintiff has stated a claim.
2. The § 1983 Claim
There is no question that to the extent plaintiff's § 1983 claim is premised upon his alleged entitlement to a pre-termination hearing under § 75 of the Civil Service Law, that claim is foreclosed by the doctrine of collateral estoppel, or issue preclusion, as expressly noted by the Second Circuit in plaintiff's earlier lawsuit. See Jones v. County of Albany, 113 F.3d 1229 (table), text in WESTLAW, 1997 WL 260063 (2d Cir.). Moreover, to the extent that plaintiff's § 1983 claim is premised upon a fraud committed by O'Connor, defendant is correct in asserting that plaintiff fails to plead what right he was deprived of by any such fraud. See, e.g., Oklahoma City v. Tuttle, 471 U.S. 808, 816, 85 L. Ed. 2d 791, 105 S. Ct. 2427 (1985) (noting that § 1983 "creates no substantive rights; it merely provides remedies for deprivations of rights established elsewhere."). Thus, to the extent plaintiff's § 1983 claim is based on either theory, defendants' motion to dismiss is granted.
In the affidavit plaintiff submitted with his Complaint, however, he seems to assert a different basis for his § 1983 claim: namely, he asserts that defendants failed to afford him certain procedural protections to which he was entitled in connection with being disqualified under § 50 of the Civil Service Law. That section provides, in pertinent part, that
No person shall be disqualified pursuant to this subdivision unless he has been given a written statement of the reasons therefor and afforded an opportunity to make an explanation and to submit facts in opposition to such disqualification.