The opinion of the court was delivered by: Marrero, District Judge.
Malley is a former mathematics teacher who was terminated from
his position at a New York City public high school in 1987; over
fifteen years ago. He has filed fifteen cases (including the
instant action) in this Court which either directly or
indirectly address his termination. See, e.g., Malley v. N.Y.
City Bd. of Educ., No. 94 Civ. 7186, 1995 WL 434322, at **1-2
(S.D.N.Y. July 24, 1995); Malley v. N.Y. City Bd. of Educ.,
No. 93 Civ. 2887, 1994 WL 39032 (S.D.N.Y. Feb. 9, 1994); Malley
v. Fernandez, No. 91 Civ. 5635, 1992 WL 204359, at *1 (S.D.N.Y.
Aug. 10, 1992). In addition, Malley has filed three actions in
the Eastern District of New York and in the District of New
Jersey which also include claims regarding his termination.
Malley v. N.Y. City Bd. of Educ., No. 96 Civ. 5344 (E.D.N.Y.
Nov. 29, 1996); Malley v. N.Y. City Bd. of Educ., No. 93 Civ.
5613 (D.N.J. Mar. 15, 1994); Malley v. Medical Bureau, No. 93
Civ. 5612 (D.N.J. Apr. 26, 1994).
By Order dated April 26, 1994, the Honorable Thomas P. Griesa,
warned Malley that if he continued to file complaints against
New York City (the "City") and the City Board of Education (the
"Board") regarding his termination, the Court may enjoin him
from filing future cases without first obtaining leave of court.
Malley v. Medical Bureau, No. 94 Civ. 3051 (S.D.N.Y. Apr. 26,
1994) (dismissed sua sponte). He was reminded of this warning
by Judge Griesa in Malley v. N.Y. City Bd. of Educ., No. 94
Civ. 4557 (S.D.N.Y. Aug. 5, 1994). Despite these warnings,
Malley filed a new action which resulted in an order by the
Honorable John F. Keenan that "[p]laintiff may not file any more
complaints in this Court without first obtaining the permission
of a Judge of this Court." Malley v. N.Y. City Bd. of Educ.,
No. 94 Civ. 7186, 1995 WL 434322, at *3 (S.D.N.Y. July 24,
1995). The United States Court of Appeals for the Second Circuit
approved this injunction, saw "no barrier to a broader
injunction in light of the warnings previously issued to
Malley," and remanded the action to determine if the injunction
should be broadened from this Court to all federal district
courts. Malley v. N.Y. City Bd. of Educ., 112 F.3d 69, 69-70
(2d Cir. 1997) (per curiam) (this action was required because
"Malley has amply demonstrated that neither the lack of success
of his actions nor the warnings of the district court will cause
him to cease his abuse of the judicial process."). Thereafter,
Judge Keenan extended the injunction as follows:
Plaintiff is hereby prohibited from filing any
further complaints in any federal court based on his
dismissal by the Board of Education and/or the denial
of his application to have his teaching license
reinstated without first obtaining leave of a judge
of the court in which he seeks to file such
complaint. It is further ordered that plaintiff
attach a copy of this Order to any pleading filed, or
attempted to be filed, in a civil action in any
federal court. Failure to comply with this Order may
result in the summary dismissal of Plaintiffs
Malley v. N.Y. City Bd. of Educ., No. 94 Civ. 7186, 1997 WL
570501, at *1 (S.D.N.Y. Sept. 15, 1997). Malley was admonished
for repeated failure to comply with Judge Keenan's September 15,
1997 Order and was eventually sanctioned $1,500.00 under
Rule 11 of the Federal Rules of Civil Procedure. Malley v. Corp.
Counsel of the City of N.Y., No. 00 Civ. 1617 (S.D.N.Y. Mar.
21, 2000). However, Malley continues to ignore this Court's
Order by filing complaints without first obtaining leave of the
Court. See, e.g., Malley v. N.Y. City
Bd. of Educ., No. 02 Civ. 3575(VM) (S.D.N.Y. May 15, 2002);
Malley v. N.Y. City Bd. of Educ., No. 02 Civ. 1482(WK)
(S.D.N.Y. Apr. 5, 2002); Malley v. N.Y. City Bd. of Educ., No.
00 Civ. 2947(JFK) (S.D.N.Y. May 24, 2000).
In this action, Malley attempts to circumvent the Order
barring him from filing any action "based on his dismissal by
the Board of Education and/or the denial of his application to
have his teaching license reinstated in any federal district
court without prior leave of court," Malley v. N.Y. City Bd. of
Educ., No. 94 Civ. 7186(JFK), 1997 WL 570501, at *1 (S.D.N.Y.
Sept. 15, 1997), by alleging that defendants violated his civil
rights prior to his termination. (Compl. at 4.) Malley alleges
that permission from this Court before filing this action was
not necessary because he is alleging that the discrimination
occurred on December 21, 1985, a year prior to his termination.
However, the complaint is just another of Malley's thinly veiled
attempts to reargue claims pertaining to his "dismissal by the
Board of Education and/or the denial of his application to have
his teaching license reinstated". Id.
In any event, even if this action were outside the parameters
of this Court's injunction, the action would be dismissed as
time-barred under New York law. See Owens v. Okure,
488 U.S. 235, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989) (three-year statute
of limitations for actions under 42 U.S.C. § 1983 in New York);
Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254
(1985) (statute of limitations for § 1983 actions governed by
state law); New York Civil Practice Law and Rules ("CPLR") § 214
(McKinney 2000) (three-year statute of limitations for tort
actions); CPLR § 213 (McKinney 2000) (six year statute of
limitations for contract actions).
While ordinarily the Court would not dismiss a complaint where
a defense is waivable, the facts clearly show that Malley's
claims are over sixteen years old. The incidents upon which this
complaint is based occurred on December 21, 1985. However,
plaintiffs complaint was received by the Court's Pro Se Office
on June 4, 2002. See Pino v. Ryan, 49 F.3d 51, 53 (2d Cir.
1995) (a defense that appears on the face of the complaint may
be the basis for a dismissal under 28 U.S.C. § 1915).
Consequently, a dismissal under 28 U.S.C. § 1915 based on the
statute of limitations is especially appropriate where, as in
this case, the injuries complained of occurred well outside the
applicable limitations period for either a civil rights,
contract or tort claim. Id. at 54; see also Baker v. Cuomo,
58 F.3d 814, 818-19 (2d Cir. 1995) (a sua sponte dismissal is
"appropriate if it appears from the face of the complaint that
the action is barred . . . by the statute of limitations"),
vacated in part on other grounds, 85 F.3d 919 (2d Cir. 1996).
Moreover, in order to sustain a claim for relief under
42 U.S.C. § 1983 against municipal defendants, such as the City and
the Board and Corporation Counsel, Malley must show the
existence of an officially adopted policy or custom that caused
injury and a causal connection between that policy or custom and
the deprivation of a constitutional right. See Bd. of County
Comm'rs of Bryan County, Oklahoma v. Brown, 520 U.S. 397,
402-03, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) (citing Monell
v. Dep't of Soc. Servs., 436 U.S. 658, 690, 98 S.Ct. 2018, 56
L.Ed.2d 611 (1978)); Sarus v. Rotundo, 831 F.2d 397, 400 (2d
Cir. 1987). Even when liberally construed, Malley's complaint
cannot reasonably be interpreted as alleging facts
sufficient to demonstrate that Malley's injury was caused by any
policy or custom of the municipal defendants. Furthermore, if
Malley seeks to pursue claims against the agencies of the City,
such as the Board or Corporation Counsel, these departments do
not have the capacity to be sued. See Orraca v. City of New
York, 897 F. Supp. 148, 152 (S.D.N.Y. 1995); N.Y. City Charter
§§ 431-40. Instead, any action against such agencies must be
brought against the City of New York, N.Y. City Charter § 396.
Malley's disregard of this Court's various Orders cannot be
tolerated. Accordingly, his latest action is dismissed.
Furthermore, Malley is reminded that "[p]ro se status does not
confer the right to make frivolous motions and claims."
Glendora v. Ken, 97 Civ. 1131, 98 Civ. 421, 1999 WL 390642, at
*5 (E.D.N.Y. Mar. 31, 1999). By his own conduct, Malley has
demonstrated his refusal or, perhaps inability, to abide by this
Court's prior admonitions and injunctions. Thus, "`the Court
must find additional methods to make its message clear to
plaintiff.'" Weinstein ...