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March 13, 2003


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



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.


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.


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 ...

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