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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 "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.


  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 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 # 212-777-5013. Page 6 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 Page 7 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 attempt."

  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 Page 8 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 state court.

  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 come Page 9 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 them.


 I. Subject Matter Jurisdiction and Exhaustion of State Remedies

  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 Page 10 instant case.

  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 (S.D.N.Y. 1999).

  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 Page 11 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 Page 12 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 Page 13 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 Page 14 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. Page 15



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