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February 4, 2003


The opinion of the court was delivered by: Alvin K. Hellerstein, United States District Judge

The defendants have moved to dismiss the complaint pursuant to Rules 12(b)(6) and 12(c) of the Federal Rules of Civil Procedure. For the reasons below the plaintiff may proceed with his Title VII claims based on racial discrimination and retaliation against New York State Department of Correctional Services ("DOCS") and 42 U.S.C. § 1983 claims for prospective relief and individual capacity monetary damages against Fischer, Oken and Leghorn The plaintiff's Title VII claims against Fischer, Oken, and Leghorn are dismissed. Likewise, his section 1983 claims against DOCS and against the individual defendant in their official capacities for monetary damages are dismissed.


The pro se plaintiff, Edwin Flores, was a correctional officer at Sing Sing Correctional Facility ("Sing Sing") in Ossining, New York and, as such, an employee of DOCS The plaintiff filed a charge of discrimination against DOCS with the New York State Division of Human Rights on January 31, 2002. A Right to Sue letter was issued on June 21, 2002. The complaint in this action was timely filed on September 11, 2002.

Pursuant to 42 U.S.C. § 1983, the plaintiff charges the defendants with violating his rights under the equal protection and due process clauses of the United States Constitution, and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2000e-17. Plaintiff states that he was deprived of an employment opportunity because he is Hispanic, that the defendants retaliated against him after he protested, and that the defendants' acts forced him to resign, effective July 1, 2002. He demands that he be restored to his position as correctional officer with back pay and that he receive compensatory, "future," and punitive damages against each defendant.

His complaint alleges a number of discriminatory acts. On September 26, 2001, the defendant Michael Leghorn, a lieutenant at Sing Sing, refused to allow him to attend weapons training officer school — even though several Caucasian and African-American officers were allowed to attend who were junior to him and possessed fewer qualifications — because his name wrongly appeared on lists that showed he was about to be transferred to another facility and that he was being monitored for time and attendance violations. The plaintiff filed an internal grievance in late January 2002, arguing that he should not be on these lists and that he should be permitted to attend the training school.

Plaintiff claims that he faced retaliation for filing the grievance. He alleges that he was issued a fraudulent Notice of Discipline on March 4, 2002 for allowing a prisoner to escape, even though he was not in the immediate area and the two officers who were at the scene — one African-American and the other Caucasian — were not disciplined. Furthermore, his name was not removed from the time and attendance monitoring list, and the plaintiff filed an internal grievance to challenge his continued placement on the list on April 26, 2002. And while the plaintiff was taking workers' compensation leave in June 2002, the defendant Carl Oken, the Deputy Superintendent of Administration Services at Sing Sing, authorized his status to be changed to AWOL (Absence Without Leave Authorization).

Lastly, the plaintiff charges defendant Brian Fischer, the Superintendent of Sing Sing, with "fail[ing] to supervise his subordinates in such a manner that did not violate the plaintiff Equal Protection and denied him his Due Process Right in violation of Kirkland v. New York State Department of Correctional Services, 711 F.2d 1117 (2d Cir. 1983), Retaliation, and 14th Amendment of the United States Constitution." He also alleges that Fischer "was grossly negligent in the supervision of his subordinates, in that he set or caused to be set an unfair policy" that violated the plaintiff's constitutional rights.


A Rule 12(b)(6) motion requires the court to determine whether plaintiff has stated a legally sufficient claim. A motion to dismiss under Rule 12(b)(6) may be granted only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991). The court's function is "not to assay the weight of the evidence which might be offered in support" of the complaint, but "merely to assess the legal feasibility" of the complaint. Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980). In evaluating whether plaintiff could ultimately prevail, the court must take the facts alleged in the complaint as true and draw all reasonable inferences in favor of the plaintiff. See Jackson Nat'l Life Ins. Co. v. Merrill Lynch & Co., 32 F.3d 697, 699-700 (2d Cir. 1994).

The defendants have also moved for a judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. A court evaluates a Rule 12(c) motion according to the same standards applicable to Rule 12(b)(6) motions. See Ad-Hoc Comm. of Baruch Black and Hispanic Alumni Ass'n v. Bernard M. Baruch Col, 835 F.2d 980, 982 (2d Cir. 1987). As discussed below, because the complaint raises questions of fact that cannot be resolved on the pleadings, I deny the motion.

I. Title VII Claims

Plaintiff's Title VII claims are barred as to the individual defendants. Under Title VII, a plaintiff may sue only his employer, not persons in their individual capacity, for employment discrimination. Tomka v. Seiler Corp., 66 F.3d 1295, 1313 (2d Cir. 1995), abrogated on other grounds, Burlington Ind. v. Ellerth, 524 U.S. 742 (1998). Thus, the plaintiff's Title VII claims brought against Fischer, Leghorn, and Oken must be dismissed.

The plaintiff may, however, bring his Title VII claims against his employer DOCS. See Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976) (holding that the Eleventh Amendment does not bar Title VII suits against the states). DOCS argues that the plaintiff has not met the burden-shifting test established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). However, a Title VII plaintiff need not plead a prima facie case in his complaint, and instead must simply adhere to the pleading requirements of Fed.R.Civ.P. 8(a). See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510-11 (2002) (holding that McDonnell Douglas articulates an evidentiary, not pleading, standard). So long as the complaint satisfies the requirements of Rule 8(a) by giving notice of the basis for the plaintiff's claims, the case will survive a motion to dismiss. See id. at 514. The plaintiff has met the Rule 8(a) criteria. He has alleged that he was terminated on account of race in violation of Title VII and of his due process and equal protection rights under the U.S. Constitution, and that he experienced retaliation. His ...

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