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ACOSTA v. CITY OF 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

Opinion

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 "complaint."

The complaint contains detailed allegations about plaintiff's employment by the NYPD from 1990 until he was Page 2 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 background.

  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.

  THE COMPLAINT

  Plaintiff was hired by the NYPD on October 15, 1990. The complaint alleges that over the course of the next year plaintiff Page 3 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 Page 4 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 capacity.

  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 benefits.

  The complaint alleges that on or about May 22, 2002 Page 5 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 ...


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