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United States District Court, Southern District of New York

March 27, 2003


The opinion of the court was delivered by: Shira A. Scheindlin, U.S. District Judge.



Alice Clissuras and Patricia Clissuras,*fn1 proceeding pro se, commenced this action on October 11, 2002 against the City University of New York ("CUNY"),*fn2 the Teachers' Retirement System of the City of New York ("TRS"), Professional Staff Congress/City University of New York ("PSC-CUNY" or "the Union"), PSC-CUNY Welfare Fund ("the Fund"), and various unnamed and potentially responsible defendants. Plaintiffs allege various constitutional violations pursuant to section 1983 of Title 42 of the United States Code, as well as claims for breach of contract, fraudulent taking and obstruction of justice. The remaining defendants now move for dismissal pursuant to Rule 12(b)(6)*fn3 on the following grounds: (1) defendants are not state actors and therefore cannot be held liable under section 1983; (2) plaintiffs' claims are time barred; (3) plaintiffs failed to state a claim for fraud, breach of contract, and breach of fiduciary duty; (4) no private right of action exists for obstruction of justice; (5) no private right of action exists for "identity theft;" and (6) the doctrines of collateral estoppel and res judicata bar plaintiffs' claims. For the reasons stated below, defendants' motions are granted.


A motion to dismiss pursuant to Rule 12(b)(6) should be granted only if "`it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claims which would entitle [her] to relief.'" Weixel v. Board of Educ. of the City of New York, 287 F.3d 138, 145 (2d Cir. 2002) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The task of the court in ruling on a Rule 12(b)(6) motion "`is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.'" Sims v. Artuz, 230 F.3d 14, 20 (2d Cir. 2000) (quoting Ryder Energy Distrib. Corp. v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779 (2d Cir. 1984)).

Courts must accept all factual allegations in the complaint as true and draw all reasonable inferences in plaintiff's favor when deciding a motion to dismiss pursuant to Rule 12(b)(6). See Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). Because "most pro se plaintiffs lack familiarity with the formalities of pleading requirements, [courts] must construe pro se complaints liberally, applying a more flexible standard to evaluate their sufficiency." Lerman v. Bd. of Elections in the City of New York, 232 F.3d 135, 140 (2d Cir. 2000). It is particularly important to read a pro se complaint liberally where it alleges civil rights violations. See Thompson v. Carter, 284 F.3d 411, 416 (2d Cir. 2002).


Both Alice and Patricia Clissuras worked as professors for New York City Technical College ("NYCTC"), a division of the City University of New York. Complaint of Alice Clissuras ("A. Compl.") ¶ 7; Complaint of Patricia Clissuras ("P. Compl.") ¶ 7. Alice Clissuras began teaching at NYCTC on September 1, 1948, A. Compl. ¶ 32, and she retired at the rank of Professor Emeritus with thirty-four years of service on September 1, 1982. A. Compl. ¶ 7. On February 1, 1969, Patricia Clissuras began teaching at NYCTC. P. Compl. ¶ 20. She retired at the rank of Professor Emeritus on January 30, 1986. P. Compl. ¶ 20. Patricia Clissuras accumulated twenty-three years of service by teaching at NYCTC for seventeen years, purchasing three years of service credit, and acquiring three additional years of service credit by selecting early retirement. P. Compl. ¶ 20.

Plaintiffs describe a scheme in which the defendants failed to credit them with all their years of service, thereby affecting their pension calculations and reducing their pension payments. Specifically, Alice Clissuras claims defendants TRS and the Union treated her first five years of service as "outside service" and excluded them from the pension calculation. A. Compl. ¶ 21. By eliminating five years of outside service, TRS determined that Alice Clissuras failed to qualify for the 30-year service allowance and calculated her pension benefits based on twenty-nine years of service. A. Compl. ¶¶ 20-21. Alice Clissuras claims she lost more than $10,000.00 annually for twenty years, resulting in over $200,000.00 in damages. A. Compl. ¶ 24. Patricia Clissuras claimed defendant TRS failed to credit her for a complete year of service in 1969, and failed to include six years of service credit obtained through purchase and early retirement. P. Compl. ¶ 21. She alleges damages of over $192,000.00. P. Compl. ¶ 26. Plaintiffs claim the Union similarly used these incorrect calculations to their detriment. A. Compl. ¶¶ 30-33; P. Compl. ¶¶ 32, 34.

Both plaintiffs accuse defendants TRS, Welfare Fund and the Union of improperly considering them to be New York City public school teachers, rather than professors for the State of New York, when calculating benefits. A. Compl. ¶¶ 30, 33, 44-47; P. Compl. ¶¶ 34, 48-51. In addition, plaintiffs allege the defendants breached a contract and the Fund breached its fiduciary duty under ERISA by failing to treat them as state retirees and providing reduced health insurance coverage. A. Compl. ¶¶ 41-50; P. Compl. ¶¶ 45-53. Plaintiffs further claim defendants' categorization of them as city retirees constitutes obstruction of justice and "identity theft." A. Compl. ¶¶ 58-61; P. Compl. ¶¶ 63-66.

As noted, the remaining defendants now move to dismiss these actions. Defendant PSC-CUNY has also requested monetary sanctions against the plaintiffs. See Memorandum of Law on Behalf of PSC CUNY in Further Support of Its Motion to Dismiss and Request for Sanctions Against Plaintiff ("Union Rep.") at 8-10.


A. Federal Claims

1. Section 1983 Claims

Plaintiffs essentially claim that defendants violated their civil rights and denied them due process and equal protection under the law by taking their property (via the pension plan and health benefits) and their identities. Plaintiffs further allege that defendants conspired to perpetrate these violations, thereby obstructing justice. These claims fall within the ambit of section 1983.*fn4

a. State Action

Section 1983 establishes liability for the deprivation of constitutional rights by anyone acting "under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia." 42 U.S.C. § 1983 (2000). "[T]he under-color-of-state-law element of § 1983 excludes from its reach `merely private conduct, no matter how discriminatory or wrongful.'" American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (quoting Blum v. Yaretsky, 457 U.S. 991, 1002 (1982)). The Union and Fund argue that plaintiffs' constitutional claims are barred because their Complaints fail to demonstrate that they are state actors or acted under color of state law.

State action is properly determined by considering whether "the alleged infringement of federal rights [is] fairly attributable to the State." Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982) (quotation marks and citation omitted). Courts require the defendant to "`have exercised power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law'" to support a state action finding. Kia P. v. McIntyre, 235 F.3d 749, 755 (2d Cir. 2000) (quoting West v. Atkins, 487 U.S. 42, 49 (1988)). Even receiving "information and assistance from federal authorities does not render the recipient's subsequent, independently rendered decision using such information `fairly attributable' to the government." United States v. International Bhd. of Teamsters, 156 F.3d 354, 360 (2d Cir. 1988) (emphasis in original).

Plaintiffs contend that the Union and Fund acted under color of state law because they bear the name of CUNY and "serve only CUNY, a State entity, and the CUNY teaching staff." A. Mem. at 6-7; P. Mem. at 6-7.*fn5 Using "CUNY" in their official titles hardly establishes a sufficient nexus to attribute the alleged unlawful conduct to the state; plaintiffs must instead allege that "defendants' actions took place under the direction or control of a state entity." Andujar v. Hewitt, No. 02 Civ. 2223, 2002 WL 1792065, at *10 (S.D.N.Y. Aug. 2, 2002). Plaintiffs fail to assert that CUNY controlled the decisions of the Union and the Fund, precluding a finding of state action.

Plaintiffs next declare that the Union acted under color of state law by signing a collective bargaining agreement ("CBA") with CUNY and using a CUNY form and method of calculation to determine pension benefits. See Affirmation [of Alice Clissuras] in Support of Plaintiff's Motion for Dismissal for Failure of Defendants' Answers and Defenses ("A. Aff.") at 6; P. Aff. at 6. The Union's CBA with the State cannot alone establish state action. See Dunn v. County of Erie, No. 92 Civ. 511, 1993 WL 427455, at *3 (W.D.N.Y. Oct. 14, 1993). As correctly noted by the Union, labor unions generally are not considered state actors. See Ciambriello v. County of Nassau, 292 F.3d 307, 323 (2d Cir. 2002). Plaintiffs failed to allege any control or direction over the Union by the State sufficient to support a finding of state action.

Additionally, plaintiffs proclaim the Fund a state actor because it "administers government money for health benefits under the aegis of State government." A. Mem. at 7; P. Mem. at 7. Receipt of public funds or information from state authorities will not convert a private actor into a state actor. See International Bhd. of Teamsters, 156 F.3d at 360; accord Andujar, 2002 WL 1792065, at *9 ("Neither government funding nor regulation, however extensive, is sufficient to confer section 1983 liability on private actors."). However, performing a function "`traditionally [within] the exclusive prerogative of the State'" constitutes state action. Rendell-Baker, 457 U.S. at 842 (quoting Jackson v. Metro. Edison Co., 419 U.S. 345 (1974)). Private companies frequently administer health benefits and insurance plans. Providing health insurance (even if funded by the government) does not transform the Fund into a state actor.

b. Statute of Limitations

Defendant TRS argues that plaintiffs' constitutional claims against it are time-barred. Actions pursuant to section 1983 are governed by the personal injury statute of limitations in the state where the action is brought. See Owens v. Okure, 488 U.S. 235, 240-41 (1989). In New York, the personal injury statute of limitations is three years. See N.Y. C.P.L.R. § 214(5) (McKinney 2002). Section 1983 claims accrue when the claimant "`knows or has reason to know of the allegedly impermissible conduct and the resulting harm.'" Pena v. Travis, No. 01 Civ. 8534, 2002 WL 31886175, at *11 (S.D.N.Y. Dec. 27, 2002) (quoting Duamutef v. Morris, 956 F. Supp. 1112, 1119 (S.D.N.Y. 1997)).

Plaintiffs filed their Complaints on October 11, 2002. Accordingly, any claim accruing before October 10, 1999 is time-barred. Alice Clissuras received her first retirement check from TRS on January 2, 1983, see Defendant TRS' Memorandum of Law (A. "TRS Mem.") at 5, and Patricia Clissuras received her first retirement payment on May 2, 1986. See P. TRS Mem. at 5. Plaintiffs may not have immediately realized that the pension calculations were incorrect. However, Alice Clissuras had reason to know of her alleged injury by August 1985, when she commenced federal and state actions regarding the pension calculation.*fn6 See A. TRS Mem. at 3, 5. By June 1986, when Patricia Clissuras instituted federal and state lawsuits concerning her benefits, she knew of her injuries.*fn7 See P. TRS Mem. at 5. Accordingly, plaintiffs' claims against TRS accrued well beyond the three-year limitations period and are time-barred.

i. Continuing Violation

Plaintiffs assert that continued receipt of their pension checks establishes a continuing violation, making their claims against TRS timely. See A. Mem. at 9; P. Mem. at 9. The continuing violation doctrine "allows courts to consider conduct that would ordinarily be time barred as long as the untimely incidents represent an ongoing unlawful employment practice." National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 118 (2002). Plaintiffs must allege more than a continuing impact on their benefits to establish a continuing violation — there must be a present violation. See United States v. Evans, 431 U.S. 553, 558 (1977). The Supreme Court has held "[i]t is not correct to consider payments of benefits based on a retirement that has already occurred as a sort of continuing violation." Florida v. Long, 487 U.S. 223, 239 (1988).*fn8 Because plaintiffs cannot evade the statute of limitations by alleging a continuing violation, their section 1983 claims against TRS are dismissed.


The Fund contends it qualifies as a "governmental plan" exempt from the purview of the Employee Retirement Income Security Act ("ERISA"), see 29 U.S.C. § 1003(b)(1); accordingly plaintiffs' claims concerning employee benefits must instead be asserted as a common law breach of fiduciary duty action. A governmental plan is a plan "established or maintained for its employees . . . by the government of any State or political subdivision thereof, or by any agency or instrumentality of any of the foregoing." 29 U.S.C. § 1002(32) (2000). The Fund, which provides benefits to the public employees of the City University of New York, qualifies as a governmental plan. See Roy v. Teachers Ins. & Annuity Assoc., 878 F.2d 47, 48-49 (2d Cir. 1989) (holding voluntary retirement program for State University of New York employees was a governmental plan exempt from ERISA); see also Feinstein v. Lewis, 477 F. Supp. 1256, 1262 (S.D.N.Y. 1979) (finding welfare plans established pursuant to a collective bargaining agreement for the benefit of public employees are governmental plans). Because the Fund is a governmental plan, plaintiffs' ERISA claims against it must be dismissed.

B. State Claims

A district court may decline to exercise supplemental jurisdiction over state law claims if "[it] has dismissed all claims over which it has original jurisdiction." 28 U.S.C. § 1367(c)(3) (2000). Because plaintiffs' federal claims have been dismissed, I decline to exercise supplemental jurisdiction over plaintiffs' claims of common law fraud, breach of contract and breach of fiduciary duty. Accordingly, plaintiffs' state law claims have not been addressed. Plaintiffs' state law claims are, however, dismissed without prejudice.

C. Sanctions

Defendant PSC-CUNY requests monetary sanctions against plaintiffs for their "vexatious" and "frivolous litigation." Memorandum of Law on Behalf of PSC CUNY in Further Support of its Motion to Dismiss and Request for Sanctions Against Plaintiff [Alice Clissuras] ("A. Union Rep.") at 8-10; P. Union Rep. at 8-10. The Union cites Golub v. University of Chicago, Nos. 87 Civ. 2891, 88 Civ. 597, 1992 WL 333641, at *3 (E.D.N.Y. Oct. 26, 1992), to support its request for monetary sanctions against these pro se plaintiffs. However, the court in Golub imposed monetary sanctions only after Golub beleaguered various courts with duplicative motions and actions, ignored the court's instruction "not to replead any claims dismissed with prejudice," and disobeyed a court order permanently enjoining him from filing or bringing any other actions against the defendants in any court or administrative agency. See id. at *1, *3. The court went so far as to warn Golub that he "may not re-open this case, now or ever." Id. at *3 (emphasis in original). In justifying monetary sanctions, the court emphasized that Golub had been "adequately warned of the consequences which may result from this behavior." Id.

Alice and Patricia Clissuras have not received the same unambiguous warnings, making monetary sanctions inappropriate at this time. However, such a warning will now issue. Alice Clissuras and Patricia Clissuras are hereby permanently restrained and enjoined from filing, bringing or otherwise instigating any actions, or prosecuting or continuing to prosecute any claims, motions or other filings of any type in any federal court against the City University of New York, the Teachers' Retirement System of the City of New York, Professional Staff Congress/City University of New York, and PSC-CUNY Welfare Fund unless they first seek leave to proceed from this Court. In seeking leave, plaintiffs must submit to a magistrate judge a copy of this Court's Opinion and Order and a sworn statement certifying that the claims to be asserted have not been previously adjudicated. Should either plaintiff fail to comply with these conditions, monetary sanctions may be appropriate.


For the reasons stated above, defendants' motions to dismiss the Complaints are granted. The Clerk of the Court is directed to close these cases.


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