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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 ...

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