United States District Court, S.D. New York
March 31, 2004.
WILLIAM L. ACOSTA, Plaintiff -against- CITY OF NEW YORK, NEW YORK CITY POLICE DEPARTMENT, COMMISSIONER RAYMOND KELLY (Individually and in his official capacity), CAPTAIN ROY T. RICHTER (Individually and in his official capacity), DIRECTOR THOMAS M. PRASSO (Individually and in his official capacity) and JOHN AND JANE DOES 1-5 (Individually and in their official capacities), Defendants
The opinion of the court was delivered by: THOMAS GRIESA, Senior District Judge
This is an action by plaintiff William L. Acosta alleging
discriminatory conduct by his former employer, defendant New York City
Police Department ("NYPD"). He is suing the City of New York and the
NYPD, as well as Police Commissioner Raymond Kelly and other individual
police officers. Plaintiff brings the action pursuant to
42 U.S.C. § 1981 and 1983, and New York law. Plaintiff has filed an original
Complaint and a First Amended Complaint. The present opinion deals with
the First Amended Complaint, but it will be referred to as the
The complaint contains detailed allegations about plaintiff's
employment by the NYPD from 1990 until he was
allegedly constructively discharged on April 9, 1996. The complaint
then describes the action he brought in this Court in 1999 (99 Civ.
2474), in which he presented allegations of misconduct which are
reiterated in the above-described portion of the complaint. Plaintiff
further describes the fact that this case was settled in 2002, resulting
in plaintiff's reinstatement. On May 22, 2002 plaintiff voluntarily
retired from the NYPD and received a letter of good standing.
It is clear from the complaint that the present action does not, and
cannot, revive the claims about plaintiff's employment, which were made
in the 1999 action. The present action complains only about a denial by
the NYPD of a pistol license, which plaintiff applied for in May 2002.
The allegations about his earlier employment are set forth solely as
Defendants move to dismiss the complaint for failure to exhaust state
administrative and judicial remedies, lack of subject matter
jurisdiction, failure to state a claim, and other grounds. For the
reasons set forth, the motion to dismiss is granted on the ground that
plaintiff has failed to state a claim for discrimination in connection
with the denial of the pistol license.
Plaintiff was hired by the NYPD on October 15, 1990. The complaint
alleges that over the course of the next year plaintiff
was harassed, intimidated, and threatened by fellow members of the
NYPD as a result of corruption allegations he made against the
Department. According to the complaint, on November 18, 1991 plaintiff
was constructively discharged by the NYPD.
The complaint alleges that on November 8, 1993 plaintiff was reinstated
on the condition that he not discuss earlier-made allegations of
corruption. Plaintiff was assigned to the Internal Affairs Bureau
("IAB"), the NYPD bureau in charge of corruption investigations, in an
undercover capacity. The complaint alleges that for approximately
eighteen months plaintiff reported directly to Walter Mack, special
commissioner for IAB.
In May 1995 plaintiff was reassigned to the Police Academy for one
month of training. Following this training, in June 1995, plaintiff was
transferred to the 32nd Precinct. Although the complaint is unclear on
this point, it appears to allege that plaintiff continued to work in an
undercover capacity while at the 32nd Precinct. The complaint alleges
that plaintiff's transfer violated IAB protocol against assigning
undercover NYPD officers to patrols where they may encounter individuals
whom they have investigated or are investigating. The complaint further
alleges that upon plaintiff's arrival at the 32nd Precinct it was well
known that he had, in an undercover capacity, made corruption allegations
against other officers at
the 32nd Precinct. The complaint alleges that at the
32nd Precinct plaintiff received death threats, had his
locker destroyed, and was otherwise routinely harassed and threatened.
The complaint alleges that throughout his tenure with the NYPD
plaintiff repeatedly complained to supervisors that he was discriminated
against on the basis of his race and national origin, and that corruption
investigations disparately impacted minority officers. The complaint
alleges that supervisors to whom plaintiff complained were subsequently
transferred to commands in which plaintiff worked in an undercover
The complaint alleges that on March 1996 plaintiff was suspended and
placed under investigation. In the course of that investigation,
plaintiff was allegedly interrogated and subsequently accused of making
false statements. It is alleged that on April 9, 1996 plaintiff was for a
second time constructively discharged by the NYPD.
On April 6, 1999 plaintiff filed suit against the NYPD and other
defendants in federal court, alleging wrongful acts in connection with
many of the facts described above. That case was settled in 2002,
resulting in plaintiff's reinstatement.
On May 22, 2002 plaintiff retired from the NYPD and was issued a letter
of good standing in connection with his pension and other retirement
The complaint alleges that on or about May 22, 2002
plaintiff applied to the NYPD License Division for a weapons
permit, in accordance with the normal practice for retiring NYPD
officers. Plaintiff completed the required application for a pistol
license, which included the following question: "[Have you ever] been
admitted to a mental institution, sanitarium or received psychiatric
treatment? List Doctor's/Institution's Name, Address, Phone #, in
explanation." The complaint alleges that plaintiff answered the question,
"Yes," and added the following: "In or about 1996 treated on two
occasions with a psychologist due to divorce. I have received no
treatment since that time."
Following plaintiff's initial application, defendants requested
additional information. The complaint states that plaintiff appeared at
the Pistol License Division for an interview on July 25, 2002. During
this interview plaintiff's responses to questions were typed, signed by
plaintiff, and notarized. Plaintiff was provided with a copy of the
statement, and the original was retained by defendants. The complaint
states that the statement signed by plaintiff read as follows:
In response to your inquiry regarding question #
21 on Pistol License Application: Been admitted to
a mental institution, sanitarium or received
psychiatric treatment? List Doctor's/Institution's
Name, and Address.
In 1997, subsequent to an eighteen year marriage
that ended in divorce, I was having difficulty
sleeping at which time I sought the assistance of
Dr. Carlo Filiacci located in Manhattan, telephone
Dr. Filiacci prescribed lorazepan 5 ml
to aid with sleeping and muscle relaxing.
Medications was [sic] taken for approximately two
weeks as needed, at the time I was not employed
with the New York City Police Department.
The complaint alleges that subsequent to plaintiff's interview, and
after plaintiff signed his statement, the following additional response
was improperly added by defendants, which had the original copy of the
statement in their control: "No. I was never hospitalized or
institutionalized." It appears from the complaint that this additional
statement was false, and that plaintiff concedes that he was in fact
hospitalized at some point.
The record on the motion contains two documents that were not attached
to the complaint. These are: a notice of disapproval of plaintiff's
pistol license application, and an NYPD incident report dated August 20,
1997. They were submitted by defendants in connection with the motion.
The Second Circuit has stated that notice to the plaintiff is the
critical factor in determining whether extrinsic documents may be
considered on a motion to dismiss, and that where plaintiff has such
notice, and the documents are integral to the plaintiff's claims, they
may be considered without converting the motion into one for summary
judgment. See Cortec Industries, Inc. v. Sum Holding L.P.,
949 F.2d 42, 47-48 (2d Cir. 1991). Here, both documents pertain directly to
the allegations in plaintiff's complaint, and contain
information and allegations of which plaintiff was on notice. With
respect to the notice of disapproval, plaintiff no doubt was provided
with an actual copy of this document, and the complaint itself quotes
from the document. With respect to the incident report, the notice of
disapproval makes explicit reference to a "suicide attempt" by plaintiff,
and plaintiff's complaint centers around the purported and actual reasons
for denial of his pistol license application. Therefore, it should come
as no surprise to plaintiff that documentary proof of the reasons cited
in the notice of disapproval is before the Court. See Obilo v. City
University of the City of New York, 01 Civ. 5118, 2003 WL 1809471,
at *4 (E.D.N.Y.). Therefore, the Court will consider the documents on the
instant motion to dismiss without converting the motion into one for
summary judgment pursuant to Rule 12(b).
On January 18, 2003 plaintiff received the notice of disapproval from
the NYPD License Division. It stated, "Your application for a pistol
license is being denied based on the fact that you made false and
misleading statements in reference to treatment and hospitalization for
mental illness. You also failed to disclose threats of a suicide
The complaint states that the false statement referred to in the notice
of disapproval was plaintiff's alleged denial of having been hospitalized
or institutionalized, fraudulently added by defendants to plaintiff's
application. The complaint alleges
that defendants falsified plaintiff's application in retaliation
against plaintiff for filing the 1999 lawsuit, thus creating a pretext
for denying plaintiff a pistol permit.
The complaint nowhere mentions the notice of disapproval's reference to
a suicide attempt. The August 20, 1997 incident report documents an
incident in 1997 when police were summoned to plaintiff's residence after
plaintiff allegedly threatened to his brother that he would attempt
suicide. Plaintiff was not employed by the NYPD at the time.
Plaintiff appealed the License Division's determination on January 24,
2003. While it is not clear from the complaint with what division or body
plaintiff filed his appeal, it appears to have been handled within the
Licensing Division itself. On February 7, 2003 plaintiff's appeal was
denied in a letter from defendant Prasso. The letter stated that the
denial was based upon a review of plaintiff's entire record. The letter
also stated that plaintiff had four months to appeal the determination of
the Licensing Division by commencing an Article 78 proceeding in New York
Plaintiff filed the instant action on March 3, 2003. Plaintiff alleges
that defendants have engaged in a pattern and practice of discriminating
and retaliating against officers on the basis of race and national origin
by using disparate disciplinary mechanisms against minority officers who
forward with allegations of corruption in the NYPD. In particular,
the complaint alleges that defendants have discriminated against minority
officers in the administration of the retirement process/ including
preventing such officers from obtaining pistol licenses by making
unfounded allegations of false statements and other misconduct against
I. Subject Matter Jurisdiction and Exhaustion of State
Defendants argue initially that plaintiff's failure to pursue an
Article 78 proceeding to appeal the License Division's determination is
fatal to his claim, either because exhaustion of state remedies is a
prerequisite to filing a federal action under 42 U.S.C. § 1983, or
because such failure deprives this Court of jurisdiction over the claim.
Neither argument has merit.
It is well-established that a plaintiff need not exhaust state
administrative remedies as a prerequisite to filing a § 1983 action
in federal court. See Monroe v. Pape, 365 U.S. 167, 183 (1961);
Wilbur v. Harris, 53 F.3d 542, 544 (2d Cir. 1995). Only where
Congress has carved out specific statutory exceptions to this rule, or
where a procedural due process claim puts in issue state post-deprivation
remedies, is this general rule abrogated. See Zinermon v.
Burch, 494 U.S. 113, 125 (1990); Patsy v. Board of Regents of
the State of Florida, 457 U.S. 496, 509-10 (1982). Neither of those
exceptions is relevant to the
Nor is this Court for any reason deprived of jurisdiction over
plaintiff's claims for his failure to commence an Article 78 proceeding
prior to filing the instant action. The cases defendants cite in support
of this position all refer to instances where a plaintiff who has
brought an Article 78 proceeding subsequently filed a federal
action, or where plaintiff alleged procedural due process violations in
state administrative proceedings. Neither circumstance is applicable to
the instant case. There simply is no authority for the proposition that
this Court, as the forum in which plaintiff elected to bring his
allegations of discrimination pursuant to § 1983, must abstain from
exercising jurisdiction for plaintiff's failure to first proceed in state
court. See Birmingham v. Ogden, 70 F. Supp.2d 353, 364-65
Thus, plaintiff is entitled to bring the instant action, irrespective
of his decision not to commence an Article 78 proceeding following the
Licensing Division's decision.
II. Failure to State a Claim
Defendants argue that plaintiff fails to state a claim of
discrimination and retaliation on the basis of the denial of his pistol
license. According to defendants, plaintiff's pistol license application
was denied not only on the ground that plaintiff's application contained
false statements, but also due
to the fact that plaintiff's application failed to disclose a 1997
suicide attempt. These grounds for denial, defendants argue, are squarely
within the state statutory guidelines for pistol licensing, and therefore
no basis exists for allegations of discrimination and retaliation
contained in the complaint.
In a motion to dismiss for failure to state a claim, courts must accept
as true all well-pled allegations contained in the complaint. Cruz
v. Beto, 405 U.S. 319, 322 (1972). Dismissal is appropriate only if
plaintiff can prove no set of facts in support of his claim that would
entitle him to relief. Conley v. Gibson, 335 U.S. 41, 45-46
(1957). Thus, the complaint should not be dismissed if its allegations,
read in a light most favorable to plaintiff, state a claim that
defendants' denial of plaintiff's pistol license application was based on
discriminatory or retaliatory motives.
The complaint alleges that plaintiff completed a license application
and indicated on that application that he had been treated by a
psychologist twice in 1996. The complaint further alleges that in a
subsequent interview with the License Division he provided additional
information regarding this treatment. The complaint alleges that these
responses were typed and a copy was presented to him.
According to the complaint, plaintiff's copy of his statement reflects
the fact that he never stated in that
interview, "No. I was never hospitalized nor institutionalized."
The complaint alleges that this statement was fraudulently added to
plaintiff's statement by defendants in order to create a pretext for
denying plaintiff a pistol license. The complaint states that defendants
subsequently denied him a pistol license on the basis of this
manufactured false statement. The complaint alleges that defendants did
so in retaliation against plaintiff for filing a lawsuit against the NYPD
in 1999, and in furtherance of defendants' discriminatory practices
against minority officers.
As stated above, the complaint does not annex the full notice of
disapproval from the Licensing Division, nor does it quote completely
from the document. While the complaint states only that the denial was
based on plaintiff's "false statements," the notice of disapproval itself
cites an additional reason, plaintiff's failure to disclose a suicide
attempt. The complaint does not mention, much less deny, any allegation
that plaintiff attempted suicide.
Reading the complaint in the light most favorable to the plaintiff, the
Court nonetheless concludes that it fails to state a claim that the
denial of plaintiff's pistol license application was discriminatory or
retaliatory. Assuming the truth of plaintiff's allegations regarding
defendants' falsification of his application, the original notice of
disapproval contains an
independent ground for denial, namely plaintiff's failure to
disclose a suicide attempt. Denial on this basis would be well within the
discretion of the Licensing Division under New York Penal Law §
400.00(1),-which states that "[N]o license shall be issued or renewed
except for an applicant . . . (g) concerning whom no good cause exists
for the denial of the license." Broad discretion exists under New York
law to a pistol licensing officer, and mental health related issues are
certainly valid considerations in this regard. See,
e.g., DiMonda v. Bristol, 219 A.D.2d 830 (N.Y.
A.D. 1995); Archibald v. Codd, 59 A.D.2d 867, 868 (N.Y.
A.D. 1977). The allegations in the complaint simply do not speak to this
basis for denial. In fact, by selectively quoting from the notice of
disapproval, the complaint obfuscates the fact that the notice of
disapproval cited grounds for denial that did not pertain to any
allegedly manufactured false statements.
Plaintiff argues that the above analysis entails resolution of factual
disputes beyond the allegations of the complaint, and therefore is not
appropriate on a motion to dismiss. According to plaintiff, the complaint
alleges discriminatory and retaliatory motivations behind the denial of
plaintiff's pistol license, and therefore entitles plaintiff to discovery
as to whether any of defendants' stated reasons for denial are
legitimate. The Court declines to read the complaint so broadly
as to entail a general indictment of any proffered reasons for a
pistol license denial. The theory of plaintiff's allegations is clearly
and consistently that defendants fabricated statements and disciplinary
records of plaintiff and other minority officers in order to deny pistol
licenses to those individuals. To the extent that defendants expressly
relied on other grounds in denying plaintiff a pistol license
grounds that plaintiff was aware of and failed to acknowledge or address
in his complaint or pleadings on this motion the denial does not
fit within plaintiff's proffered theory of discrimination.
Thus, it is clear that no relief could be granted to plaintiff under
any set of facts that could be proved consistent with the allegations in
the complaint. See Thomas v. Westchester County Health Care
Corp., 232 F. Supp.2d 273, 275 (S.D.N.Y. 2002). Therefore, the
complaint is dismissed for failure to state a claim.
Because the Court concludes that the complaint must be dismissed for
failure to state a claim, it will not reach other grounds for dismissal
raised for the first time by defendants in their Reply Memorandum.
Defendants' motion to dismiss is granted, and the action is dismissed.
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