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VALLE v. BALLY TOTAL FITNESS

United States District Court, Southern District of New York


March 13, 2003

ISRAEL VALLE, PLAINTIFF
v.
BALLY TOTAL FITNESS AND THE CITY OF NEW YORK, DEPARTMENT OF POLICE, DEFENDANTS

The opinion of the court was delivered by: Kevin Nathaniel Fox, United States Magistrate Judge

REPORT and RECOMMENDATION

I. INTRODUCTION

Israel Valle ("Valle") commenced this action pro se pursuant to 42 U.S.C. § 1983, Title VII of the Civil Rights Act of 1964, and the Age Discrimination in Employment Act. Before the Court are the defendants' motions to dismiss made pursuant to Fed.R.Civ.P. 12(b)(6). Defendants City of New York ("City") and New York City Police Department ("NYPD") (collectively "City defendants") urge that all claims asserted by plaintiff against them should be dismissed for failure to state a claim upon which relief may be granted because: (i) the complaint fails to identify any wrongdoing by the City or NYPD; (ii) the plaintiff cannot show that a municipal policy or custom caused any deprivation of his constitutional rights; and (iii) the NYPD is not an entity that may be sued. The City defendants also maintain that the complaint is barred under the doctrine of res judicata.

For its part, defendant Bally Total Fitness ("Bally") contends that plaintiff has failed to plead a prima facie case of either discrimination or retaliation and, therefore, has failed to state a claim upon which relief may be granted. Bally also relies upon the doctrine of res judicata or, alternatively, the law of the case doctrine, in seeking to dismiss the complaint. The defendants' respective motions are addressed below.

II. BACKGROUND

Plaintiff was employed by Bally as an aerobics instructor. On May 9, 2001, plaintiff entered into an agreement with Bally pursuant to which he was to teach sixteen (16) sessions of a fitness course called the "Papi Chulo Salsa Class." According to the terms of the agreement, a copy of which is attached to the complaint, the course was to begin on May 26, 2001, and conclude on July 17, 2001. The parties agreed that the fee for the course would be $100 for Bally members and $150 for non-members. In addition, plaintiff was to be paid sixty percent (60%) of any fees received by Bally for the course. The beginning and ending dates of the course were subsequently changed to June 16, 2001, and July 21, 2001, respectively; plaintiff was duly notified of this alteration in the terms of the agreement.

Plaintiff contends that, on June 16, 2001, Bally informed him that it would not perform under the terms of the contract of May 9, 2001. Plaintiff also contends that, on September 5, 2001, Bally terminated his employment wrongfully because of plaintiff's race, sex, national origin and age. Moreover, plaintiff claims that Bally retaliated against him because he filed a complaint against it alleging an unlawful employment practice. Plaintiff has filed a charge of discrimination with the United States Equal Employment Opportunity Commission, which issued a dismissal and right to sue letter on July 31, 2001.

Subsequent to the commencement of this action, plaintiff submitted to the court an Order to Show Cause for Preliminary Injunction and Temporary Restraining Order. On December 16, 2002, your Honor denied that application on the ground that plaintiff was attempting improperly to amend the complaint based on an event that occurred after his termination from Bally.

III. DISCUSSION

A court may dismiss an action pursuant to Fed.R.Civ.P. 12(b)(6) only if "it appears beyond doubt that [a] plaintiff can prove no set of facts in support of his claim which will entitle him to relief." Woodford v. Community Action Agency of Greene County, Inc., 239 F.3d 517, 526 (2d Cir. 2001) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99 [1957]). In considering the motion, the court must take "as true the facts alleged in the complaint and draw [] all reasonable inferences in the plaintiff's favor." Jackson Nat'l Life Ins. v. Merrill Lynch & Co., 32 F.3d 697, 700 (2d Cir. 1994). Furthermore, the court may consider all papers and exhibits appended to the complaint as well as any matters of which judicial notice may be taken. See Hirsch v. Arthur Andersen & Co., 72 F.3d 1085, 1092 (2d Cir. 1995); Brass v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir. 1993). "A complaint should not be dismissed simply because a plaintiff is unlikely to succeed on the merits." Baker v. Cuomo, 58 F.3d 814, 818 (2d Cir. 1995). Additionally, when a plaintiff is proceeding pro se, the courts are to construe the complaint liberally. See, e.g., Boddie v. Schnieder, 105 F.3d 857, 860 (2d Cir. 1997).

The City Defendants' Motion

A. Failure to State a Claim

The City defendants claim that the complaint should be dismissed for failure to state a claim upon which relief may be granted because plaintiff has not identified or articulated any wrongdoing by the City or NYPD and also has failed to demonstrate that a municipal policy or custom led to a deprivation of his constitutional rights. Specifically, according to the City defendants, although plaintiff purports to bring the instant action against them pursuant to, inter alia, 42 U.S.C. § 1983, the only claims made about the City or the NYPD in the complaint appear in a statement which names approximately thirty-one other defendants and alleges "fraud . . . collusion . . . and cumulative criminal acts. . . ." The City defendants contend that plaintiff fails to set forth any factual basis for these allegations or to specify how the City defendants were involved in any alleged deprivation of his constitutional rights. Moreover, they assert, the relief which plaintiff seeks in his complaint does not pertain in any way to them.

"To state a claim under § 1983, a plaintiff must allege that (1) the challenged conduct was attributable at least in part to a person who was acting under color of state law and (2) the conduct deprived the plaintiff of a right guaranteed under the Constitution of the United States." Snider v. Dylag, 188 F.3d 51, 53 (2d Cir. 1999) (citing Dwares v. City of New York, 985 F.2d 94, 98 [2d Cir. 1993]). "Allegations which are nothing more than broad, simple, and conclusory statements are insufficient to state a claim under § 1983." Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 887 (2d Cir. 1987).

"A municipality may not be held liable under Section 1983 for the actions of its employees based on a theory of respondeat superior." Lundina v. City of New York, No. 95 Civ. 4409, 1998 WL 846813, at *2 (E.D.N.Y. Oct. 5, 1998) (citing Monell v. Dep't of Social Servs., 436 U.S. 658, 694, 98 S.Ct. 2018 [1978]). Rather, in order to show that a municipality is liable for unconstitutional acts by municipal employees, a plaintiff must show that the violation of his constitutional rights resulted from a municipal policy or custom. See id.; Sarus v. Rotundo, 831 F.2d 397, 400 (2d Cir. 1987) ("To recover against [a] municipality, it must be demonstrated that the official policy in question constitutes the moving force of the constitutional violation.") (internal quotation marks omitted). Thus, to prevail against a municipality, a plaintiff must prove, first, the existence of a municipal policy or custom that caused his injuries and, second, a causal connection between the policy and the deprivation of his constitutional rights. See Sarus, 831 F.2d at 400. A single incident alleged in a complaint generally will not suffice to raise an inference of the existence of a custom or policy. See Dwares v. City of New York, 985 F.2d at 100.

Even construing plaintiff's pro se complaint liberally, plaintiff's claims against the City defendants consist entirely of conclusory allegations unsupported by factual assertions. Furthermore, plaintiff's claims cannot be read as an attempt to plead the requisite municipal policy or custom. Plaintiff alleges fraud, collusion and cumulative criminal acts by the City defendants and others. However, these allegations are not supported by any proof of the existence of a municipal policy or custom that caused plaintiff's injuries or a causal connection between such a policy and the deprivation of plaintiff's constitutional rights. Since the complaint fails to articulate how the City defendants have injured the plaintiff or to plead adequately a custom or policy on the part of the City defendants contributing to plaintiff's injuries, plaintiffs § 1983 claims against the City defendants should be dismissed for failure to state a claim upon which relief may be granted.

Relying upon the New York City Charter, the City defendants also contend that plaintiff's claims against the NYPD should be dismissed because it is not an entity that may be sued. The New York City Charter, in its most pertinent part, provides that "[a]ll actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the City of New York and not in that of any agency, except where otherwise provided by law." New York City Charter Ch. 17 § 396. Since the NYPD is an agency of the City, it lacks independent legal existence. Therefore, pursuant to the New York City Charter, the NYPD may not be sued. See Adams v. Galletta, 966 F. Supp. 210, 212 (S.D.N.Y. 1997); Bailey v. New York City Police Dep't, 910 F. Supp. 116, 117 (E.D.N.Y. 1996).

For the reasons set forth above, even when viewed under the liberal standards applicable to a motion made pursuant to Fed.R.Civ.P. 12(b)(6), dismissal of Valle's claims against the City defendants is warranted. See DeJesus v. Sears, Roebuck & Co., Inc., 87 F.3d 65, 70 (2d Cir. 1996). Since the Court finds that Valle's claims with respect to the City defendants cannot survive a motion to dismiss, no analysis is needed of the City defendants' alternative proposition: that the complaint is barred under the doctrine of res judicata. However, for the sake of completeness that claim is analyzed below.

B. Res Judicata

"Under the doctrine of res judicata, or claim preclusion, a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action." St. Pierre v. Dyer, 208 F.3d 394, 399 (2d Cir. 2000) (quoting Federated Department Stores, Inc. v. Moitie, 452 U.S. 394, 398, 101 S.Ct. 2424 [1981]) (internal quotation marks omitted); see also Greenberg v. Bd. of Governors of Federal Reserve System, 968 F.2d 164, 168 (2d Cir. 1992). A challenge brought pursuant to the doctrine of res judicata may be raised by way of a motion to dismiss under Fed.R.Civ.P. 12(b)(6). See Silvera v. National Center for Employment of the Disabled, No. 02 Civ. 6223, 2003 WL 262508, at *2 [S.D.N.Y. Feb. 6, 2003]).

The City defendants claim that plaintiff is attempting to revive claims that were previously raised, litigated and decided in Israel Valle v. Bally Total Fitness and the New York City Police Department, No. 99 Civ. 11650. In that action, plaintiff asserted, pursuant to 42 U.S.C. § 1983, that the NYPD violated his constitutional rights by defaming him wrongfully and intentionally. In an order dated March 21, 2002, the assigned district judge dismissed Valle's prior complaint with prejudice, including all claims against the NYPD. Thus, plaintiffs § 1983 claim against the NYPD was adjudicated on the merits in a previous action. In addition, to the extent that the instant complaint articulates a claim(s) against the NYPD, it would appear to be a claim(s) that was raised or could have been raised in the prior action. Moreover, although the City was not named as a defendant in plaintiff's prior action, the City is in privity with the NYPD because the City's interests were represented adequately in the prior litigation by the NYPD. See Alcool v. Louis Dreyfus Sugar Co., Inc., 933 F. Supp. 1170, 1176 (S.D.N.Y. 1996). Therefore, the City is entitled to any preclusive effect of res judicata in the case at bar. See id. (explaining that privity bars relitigation of the same cause of action against a new defendant known by a plaintiff at the time of the first suit where the new defendant has a sufficiently close relationship to the original defendant).

For the reasons set forth above, the Court finds that it would not be appropriate to permit plaintiff to resurrect in this action the same claims that were previously adjudicated in a federal judicial proceeding. Accordingly, dismissal of the claim(s) made against the City defendants is warranted.

Bally's Motion

A. Failure to State a Claim

Bally contends that the absence of any factual allegations that would establish a prima facie case of discrimination shows that plaintiff cannot state a claim as a matter of law. Therefore, Bally seeks to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6).

In Swierkiewicz v. Sorema, 534 U.S. 506, 122 S.Ct. 992 (2002), the Supreme Court upset the standard for drafting discrimination complaints that had been established by the Second Circuit Court of Appeals. Prior to the Swierkiewicz decision, a party making a complaint of discrimination in the Second Circuit had to set forth facts which demonstrated that a prima facie case of discrimination existed under the framework laid out by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973). A party that failed to plead a prima facie case of discrimination was unlikely to survive a motion to dismiss made pursuant to Fed.R.Civ.P. 12(b)(6). However, after Swierkiewicz, it is clear that the standard by which a complaint of discrimination is to be judged, when a Rule 12(b)(6) motion has been made, is the standard set forth in Fed.R.Civ.P. 8.

Fed.R.Civ.P. 8(a)(2) requires that a pleading must have "a short and plain statement of the claim showing that the pleader is entitled to relief." The principal function of the pleadings under the Federal Rules of Civil Procedure is to give the adverse party fair notice of the claim asserted. See Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995). Thus, a plaintiff must provide sufficient information to permit the defendant to have a fair understanding of what the plaintiff is complaining about and to know whether there is a legal basis for recovery. See Kittay v. Kornstein, 230 F.3d 531, 541 (2d Cir. 2000).

In the instant case, Bally seeks to have Valle's claims dismissed on the ground that he has failed to establish a prima facie case of discrimination. To the extent that Bally urges that Valle's claims be dismissed for this reason, however, Bally ignores the Supreme Court's most recent pronouncement on this matter and continues to cling to Second Circuit case law that is no longer viable. Notwithstanding this fact, Valle is still obligated to present claims that comport with the dictates of Fed.R.Civ.P. 8; his claims must state facts, concisely and plainly, that will give Bally fair notice of the basis for his claims and whether there is a legal basis for recovery.

In the case at bar, the Court finds that the allegations made do not give Bally fair notice of the basis for Valle's claims. In the complaint it is alleged that the termination of Valle's employment was discriminatory and retaliatory because Bally: (1) "wrongfully and falsely terminated plaintiff's . . . employment without any legal right or justification therefore;" and (2) "wrongfully and falsely stated in advance of performance that [it] would definitely not perform under the terms of the . . . agreement dated May 9, 2001 without any legal right or justification therefore." Absent from the complaint are any factual allegations that would indicate how plaintiffs race, gender, age or national origin played a part in Bally's decision to terminate plaintiffs employment, or in what manner Bally retaliated against plaintiff for complaining about an unlawful employment practice. Consequently, Bally must speculate about the basis for Valle's claims of discriminatory and retaliatory discharge. This Bally should not have to do. See Fed.R.Civ.P. 8. The Court finds, therefore, that Valle's claims against Bally do not meet the notice pleading requirement of Fed.R.Civ.P. 8. The allegations made in those claims are conclusory and need not be credited by the Court. See In re American Express Co. Shareholder Litig., 39 F.3d 395, 400-01 n. 3 (2d Cir. 1994).

Furthermore, as discussed supra in connection with the City defendants' motion to dismiss, the doctrine of res judicata is applicable to Valle's claims against Bally. In his prior action against Bally and the NYPD, Valle alleged, inter alia, that Bally had "unjustly fired" him and retaliated against him because of his age, race and sex. Your Honor, in an order dated March 21, 2002, dismissed the complaint with prejudice, finding that these allegations against Bally were baseless. Therefore, the claims raised by Valle against Bally in this action are barred under the doctrine of res judicata. Given that Valle is precluded from relitigating the claims he raised previously against this defendant, the Court need not analyze Bally's alternative claim seeking to dismiss the complaint on the basis of the law of the case doctrine.

IV. RECOMMENDATION

For the reasons set forth above, it is recommended that: (a) the City defendants' motion to dismiss be granted; and (b) Bally's motion to dismiss be granted.

V. FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rule of Civil Procedure, the parties shall have ten (10) days from service of this Report and Recommendation to file written objections. See also, Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Richard C. Casey, United States District Judge, 500 Pearl Street, Room 1950, New York, New York 10007, and to the chambers of the undersigned, 40 Centre Street, Room 540, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Casey. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IEU AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair, Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).

20030313

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