The opinion of the court was delivered by: MCAVOY
Defendants Albany County Civil Service Commission ("the Commission") and Bruce J. O'Connor move, pursuant to Fed.R.Civ.P. 12(b)(6), to dismiss pro se plaintiff Craig Omar Jones' civil rights Complaint for failure to state a claim upon which relief may be granted.
From the Complaint and the exhibits plaintiff filed therewith, the Court draws the following facts. Plaintiff was provisionally employed by the New York State Department of Social Services ("DSS") as a Social Welfare Examiner on December 21, 1990. On June 8, 1991, he took the Social Welfare Examiner test and failed. He took the test again and passed on June 13, 1992.
Plaintiff seems to allege that O'Connor, a Senior Personnel Technician for the Commission, placed certain information about plaintiff that he knew to be fraudulent on the civil service eligibility list containing the results of the examination plaintiff passed. The information seems to indicate that despite plaintiff's passing grade, he was disqualified to assume a position in the competitive class of the civil service because he had committed a crime. Plaintiff further alleges that he requested an opportunity to explain such information, which was denied. Eventually, plaintiff alleges, O'Connor removed the information in order to conceal his actions.
The Complaint also contains an allegation that plaintiff was denied a hearing regarding his suspension and termination in 1993.
Plaintiff filed his first lawsuit in this district in September of 1995. That action, brought pursuant to 42 U.S.C. § 1983, alleged that plaintiff's employer, the DSS, failed to afford him a hearing before firing him in March of 1993. On May 2, 1996, Judge Scullin granted defendant's motion for summary judgment. That decision was upheld on appeal. See Jones v. County of Albany, 113 F.3d 1229 (2d Cir. 1997) (table).
Plaintiff filed the present Complaint on June 3, 1997. Plaintiff maintains that his Complaint contains three causes of action: one for fraud, one for civil rights violations under 42 U.S.C. § 1983, and one for negligence. Defendants answered on June 26, 1997, and now move to dismiss the Complaint.
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 ...