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May 16, 2001


The opinion of the court was delivered by: Sprizzo, D.J.


Plaintiff pro se Yashua Amen Shekhem' El-Bey ("plaintiff" or "Mr. El-Bey"), a former correction officer for the New York City Department of Corrections ("the DOC"), brings these four (4) actions against various defendants including the City of New York ("the City"), certain individual DOC employees, various other individual New York City officials,*fn1 the Correction Officers' Benevolent Association of the City of New York, Inc. ("COBA"),*fn2 and various COBA officers.*fn3 Plaintiffs complaints in these actions raise various claims under an eclectic grouping of authorities, including, inter alia, the United Nations Charter; plaintiffs intrinsic and fundamental human rights; 42 U.S.C. § 1981, 1983, 1985, 1986; 28 U.S.C. § 1343 (a)(2-4), 453, 1331, 1367(a), 1651, 2201, and 2202; and various articles of the United States Constitution. At the core of all of plaintiffs claims is his contention that defendants violated his rights both during and after plaintiff took sick leave for lengthy periods of time in 1994, 1995, 1996 and 1997. Defendants deny plaintiffs allegations and now move for summary judgment against plaintiff for all claims raised in El-Bey v. City of New York, 98 Civ. 2745 ("El-Bey I") and El-Bey v. City of New York, 99 Civ. 4177 ("El-Bey II"). Plaintiff opposes such motions and cross-moves for summary judgment in his favor. For the reasons set forth below, the Court grants defendants' Motion with respect to those two actions and denies plaintiffs cross-motions.


Plaintiff began working as a City correction officer on or about June of 1983. See El-Bey I Fourth Amended Complaint dated April 18, 1997 ("El-Bey I Compl.") at 13, ¶ 55. On various occasions in 1994, 1995, 1996, and 1997 plaintiff suffered injuries and aggravated existing injuries that rendered him unfit for full-duty status. In particular, on November 1, 1994 plaintiff injured his neck, back and head in an off-duty car accident; on July 16, 1995 plaintiff suffered a "service connected injury"; and on May 19, 1996 plaintiff was again involved in a car accident. See id. at 13-14, ¶ 57. These injuries and subsequent aggravations of these injuries caused plaintiff to take various and prolonged periods of leave from work. Over a period of twenty (20) months between 1995 and 1997 plaintiff was only available for work for approximately seven (7) weeks; in fact, plaintiff missed approximately 200 days of work during 1996, and he missed every day in 1997 until June 13 of that year. See id.; Declaration of Stephen A. Ricci dated February 24, 2000 ("Ricci Decl."), Exhibit ("Exh.") Q, Charges and Specifications No. 482/97.

During this time, plaintiff was subject to the DOC's sick leave directives. Pursuant to these directives, the DOC took numerous actions against plaintiff. For instance, the DOC designated plaintiff as a "Category B" chronic absentee on May 10, 1995 because plaintiff had reported sick on twelve (12) or more work days within a twelve (12) month period. See id. at 15, ¶ 65; Declaration of Yashua Amen Shekhem' El-Bey dated July 13, 2000 ("El-Bey Decl."), Exh. G., DOC Directive 2258R ("Directive 2258R") at 2 (describing the Category B classification). Moreover, during the above-described twenty month period, the DOC suspended plaintiff four (4) times because of plaintiffs noncompliance with its sick leave policies. See El-Bey Decl. at Exh. U. Such noncompliance included, but was not limited to, plaintiffs refusal to cooperate with DOC officials that tried to confirm that plaintiff was adhering to the home confinement portions of DOC Directives 2258R and 2262. See Deposition of Yashua Amen Shekhem' El-Bey, April 26, 1999 ("04/26/99 El-Bey Depo."), at 61-64. Additionally, on or about June, 1997, the DOC asked, and plaintiff refused, to submit to required medical examinations. See id. at 107-08. On August 12, 1997, shortly after his fourth suspension, plaintiff received notice that the DOC had placed him on unpaid, involuntary medical separation leave. See El-Bey I Compl. at 22-23, ¶¶ 111-12. Plaintiff contends that the DOC took each of these actions against him in derogation of his rights of due process.

At various points during his absences from work, plaintiff registered complaints about the DOC's actions with the Union Defendants. In particular, plaintiff expressed to several different COBA officials his belief that certain aspects of the DOC's sick leave directives were unconstitutional. For instance, Plaintiff complained to and requested assistance from COBA regarding the DOC's home confinement policy ("the home confinement policy"). See El-Bey I Compl. at 17-18, ¶¶ 80, 81. Directive 2262 most fully outlines the home confinement policy. In both its pre-and post-revision form,*fn4 that directive requires that certain correction officers on sick leave remain in their residence except for one specifically designated four (4) hour period each day; time spent out of the home receiving medical treatment or diagnosis does not count against this four (4) hour period and may be taken at any time. See, e.g., Directive 2262R.

Plaintiff contends now, as he asserted to the Union Defendants during his absences, that the DOC unconstitutionally required that plaintiff "remain in [his] home as a condition of employment . . . except for [a four (4) hour period each day] until . . . [it was] medically determined [that he was] able to return to work." El-Bey I Compl. at 15, ¶ 69. Plaintiff believes that COBA generally failed to assist him in challenging the objectionable portions of the DOC sick leave directives and that the Union Defendants conspired with the DOC to deprive plaintiff of his constitutional rights. See, e.g., Plaintiffs Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment and in Support of Plaintiffs Cross-Motion for Partial Summary Judgment dated June 13, 2000 ("Plaintiffs Mem.") at 3. The many examples plaintiff offers to support his contention that COBA did not act sufficiently on his behalf include: the failure of COBA to 1) "take care of' his chronically sick designation; 2) provide "immediate relief" with regard to the "fraudulently imposed involuntary unpaid medical separation leave of absence"; and 3) prevent the DOC from suspending plaintiff. See El-Bey I Compl. at 15, ¶ 66; El-Bey II First Amended Verified Complaint dated May 11, 1998 ("EL Bey II Compl.") at 10-11, ¶¶ 45, 47. In support of his conspiracy allegations against COBA, plaintiff relies primarily on the Seabrook Settlement, which revised the home confinement policy in order to settle COBA's allegations regarding the policy's unconstitutionality.*fn5 See supra note 4. The essence of plaintiffs complaint regarding the Seabrook Settlement is that the revised version of 2262 only exempted DOC officers from the home confinement policy for the first eight (8) days of sick leave. See 2262R. Plaintiff is not aware of any specific actions that COBA officials and DOC officials took in concert regarding him; plaintiff also has no specific knowledge of communications between COBA officials and DOC officials regarding him. See 09/29/99 El-Bey Depo. at 31-39, 42-44 04/26/99 El-Bey Depo. at 70-79.

Plaintiff also contends that the DOC intentionally misapplied its sick leave directives against plaintiff. Specifically, plaintiff argues that Directives 2258 and 2262 apply only to correction officers that "report[] sick." See Plaintiffs Mem. at 12. According to plaintiff, "though the sick leave directive has been so ordered by a [F]ederal Court to be constitutional on its face and as applied relative to `sick employees'*fn6 who `report[] sick' . . . it was evidently unconstitutionally applied to plaintiff' because he was "injured" and not "sick." Id. (emphasis in original). Thus, plaintiff believes that the defendants engaged in a "fraudulent scheme" to apply a policy designed for sick people to plaintiff, who was, by way of contrast, injured. See id.

Plaintiff further alleges that the DOC retaliated against him for complaining about the unconstitutionality of its sick leave directives. In particular, plaintiff asserts that DOC officials more stringently enforced DOC policies against him following the initiation of El-Bey I in June of 1997. To the extent that the Court is able to discern from plaintiffs prolix pleadings, deposition testimony, and briefs, plaintiff bases this claim on visits to his home by DOC officials following his initial complaint and on the AWOL designation and Medical Separation that followed such complaint. See, e.g., 04/26/99 El-Bey Depo. at 107; El-Bey II Compl. at 14, ¶ 64.

Plaintiff also seems to indicate that the City Defendants discriminated against him because of his race, which he describes as "Moorish-American." Again, to the extent discernable to the Court, plaintiff argues that the DOC discriminated against him and other minority DOC officers because its systematic enforcement of DOC sick leave policies had a disparate impact on minority officers. See 04/26/99 El-Bey Depo. at 97-98. The basis for this allegation seems to be that minorities make up a disproportionate number of DOC's correction officers.*fn7

Defendants deny all of plaintiffs allegations. The City Defendants emphasize that all aspects of their sick leave policy are constitutional and that, in any event, plaintiffs claims are barred by the doctrine of res judicata because of various previous actions that addressed the constitutionality of the relevant directives. The City Defendants further note that plaintiff has offered nothing but conclusory allegations in support of his claims of retaliation and discrimination. The Union Defendants join these arguments and stress that, because the Union Defendants are not state actors, they cannot be implicated in plaintiffs constitutional claims. Moreover, the Union Defendants argue that plaintiffs claims against COBA, the individual COBA defendants, and COBA's counsel are better characterized as claims for a breach of the duty of fair representation over which this Court has no jurisdiction.


A court may grant summary judgment only if it determines that there are no genuine issues of material fact based on a review of the pleadings, depositions, answers to interrogatories, admissions on file and affidavits. See Fed.R.Civ.P. 56(c). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

When ruling on a summary judgment motion, a court must construe the facts in the light most favorable to the nonmoving party and must resolve all ambiguities and draw all reasonable inferences against the moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). If no genuine issue as to any material fact exists, the moving party is entitled to summary judgment as a matter of law. See Celotex, 477 U.S. at 323.

As the Court noted above, plaintiffs allegations in this action are numerous, varied, prolix, and otherwise generally difficult to discern. Yet, given the Court's duty to "read the pleadings of a pro se plaintiff liberally and interpret them to raise the strongest arguments that they suggest," McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (internal quotations omitted), it appears from the record just described that plaintiff sets forth six (6) categories of legal claims against defendants. First, plaintiff argues that the DOC's sick leave policies are unconstitutional on their face and as applied to him. Second, plaintiff contends that the DOC disciplinary actions taken against him violated his rights of due process. Third, plaintiff asserts that the DOC retaliated against him for engaging in protected activities. Fourth, plaintiff claims that the DOC sick leave policies had a disparate impact against minority correction officers and that the City Defendants otherwise more stringently enforced those leave policies against him than it did against other officers. Fifth, plaintiff believes that the Union Defendants failed to correct the disciplinary actions taken against him and also conspired with the City Defendants to deprive him of his constitutional rights. ...

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