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 ...