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CARL B. STRAKER Plaintiff,

The opinion of the court was delivered by: FREDERIC BLOCK, District Judge


Pending before the Court are two motions challenging the amended complaint of plaintiff Carl B. Straker ("Straker"), who principally alleges procedural improprieties arising from the handling of a mandatory drug test to which he was subjected. First, defendant New York City Transit Authority ("NYCTA") moves "for a judgment pursuant to Rule 12(b)(1), (5), and (6), and Rule 12(c) of the Federal Rules of Civil Procedure dismissing the amended complaint on the ground that plaintiff has failed to allege facts which could support any federal claim or state a cause of action." [NYCTA]'s Notice of Motion to Dismiss at 1. Second, defendant Transit Workers Union of Greater New York, Local 100 ("TWU") moves to dismiss pursuant to Fed.R. Civ. P. 12(b)(6). With respect to NYCTA's motion to dismiss, the Court (1) grants the motion as to Counts I and II but sua sponte grants leave to amend Count II, and (2) denies the motion as to Counts III and IV but sua sponte directs that Straker file a more definite statement as to Count III pursuant to Fed.R. Civ. P. 12(e). With respect to TWU's motion to dismiss Count V, the Court construes Straker's claim as alleging a cognizable state law claim, retains supplemental jurisdiction over the claim, and denies TWU's motion to dismiss.


  Though named by Straker as a defendant, Metropolitan Transit Authority has not appeared as a party. NYCTA volunteers that "[p]laintiff's claims against Metropolitan `Transit' Authority should be dismissed given that no such organization exists." Memorandum of Law in Support of [NYCTA's] Motion to Dismiss at 18. Straker does not contend otherwise. Although NYCTA concedes that an organization by the name of "Metropolitan Transportation Authority" exists, the Court's docket does not contain an affidavit of service on Metropolitan Transportation Authority. The Court sua sponte dismisses Metropolitan Transit Authority as a party. See Block v. First Blood Assoc., 691 F. Supp. 685, 697 (S.D.N.Y. 1988) ("nonexistent" parties "should be considered sham parties . . . against whom no cause of action can be stated").


  NYCTA's and TWU's motions are evaluated pursuant to Fed.R.Civ. P. 12(b)(6).*fn1 In considering a motion to dismiss for failure to state a claim upon which relief can be granted, the Court accepts as true the plaintiff's factual allegations and draws all reasonable inferences in favor of the non-moving party. See Bd. of Educ. of Pawling Cent. Sch. Dist. v. Schutz, 290 F.3d 476, 479 (2d Cir. 2002). In addition to the allegations contained within the complaint, the Court "may consider facts set forth in exhibits attached as part of the complaint," Chance v. Armstrong, 143 F.3d 698, 700 n. 1 (2d Cir. 1998), as well as "any statements or documents incorporated in it by reference." Int'l Audiotext Network, Inc. v. Am. Tel. & Tel.Co., 62 F.3d 69, 72 (2d Cir. 1995) (citation omitted).

  "Dismissal is not appropriate `unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Chance, 143 F.3d at 701. "This rule applies with particular force where the plaintiff alleges civil rights violations[.]" Id. (citation omitted). "Because the complaint must allege facts which confer a cognizable right of action, `the issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.'" DeMuria v. Hawkes, 328 F.3d 704, 706 (2d Cir. 2003) (citation omitted).


  Straker's Amended Complaint ("Amend. Compl.") alleges that he worked for NYCTA since 1987 and as a train operator since 1992. On January 23, 2002, he appeared for an annual physical examination; part of that examination required him to provide a urine sample for mandatory drug testing. Straker did not provide a sample; he alleges that he was physically unable to comply because of a flare-up of his herpes genitalis.

  NYCTA construed his non-compliance as a "refusal" and terminated him. Before it did so, however, NYCTA referred Straker to several physicians to determine whether he suffered from a medical condition that rendered him unable to provide the required sample; by and large, those physicians concluded that there was no medical basis to excuse Straker's failure to urinate. Broadly stated, Straker alleges that in referring his case to the various physicians for evaluation, NYCTA failed to follow drug testing regulations promulgated by the Department of Transportation ("DOT Guidelines"), and that several of those physicians conspired with NYCTA to deprive him of his civil rights on account of his African-American race.

  Straker alleges that he and his union filed a grievance, which was arbitrated over the course of three days before the Tripartite Arbitration Board ("TAB"). Straker testified before the TAB, as did a number of other individuals. On January 11, 2003, the TAB issued a twenty-three page Opinion and Award, a copy of which is appended to Straker's Amended Complaint as Exhibit A, finalizing Straker's termination. After observing initially that the applicable Collective Bargaining Agreement provided that "[r]efusal to take [mandatory drug] test(s) . . . will be deemed an admission of improper use of Controlled Substances or Drugs and will result in dismissal from service[,]" Amend. Compl., Ex. A (Opinion and Award) at 3, the TAB determined that Straker "was not a credible witness" and rejected his arguments that the urine testing and review procedures had been violated. Amend. Compl. at ¶¶ 47-48; Ex. A at 3-23.

  Straker initiated his action on April 10, 2003. His complaint, as amended, alleges four causes of action against NYCTA (Counts I through IV) and one against TWU (Count V).*fn2

  Count I alleges that by failing to follow the DOT Guidelines regarding testing protocols, NYCTA "violated 42 U.S.C. § 1983 in that it deprived plaintiff of his job without procedural due process[.]" Amend. Compl. at 20.

  Count II alleges that NYCTA, "together with physicians Harris M. Naglar, M.D. and Avram M. Nemetz, M.D., engaged in conduct calculated to support a finding that plaintiff `refused' to render a urine sample" because of Straker's race, thereby "violat[ing] 42 U.S.C. § 1985(3) in that [NYCTA] subjected plaintiff to invidious, racially discriminatory conduct by deviating from [the DOT guidelines] and by disclosing plaintiff's medical condition to plaintiff's colleagues, supervisors, management and the Department of Labor Relations." Id. at 21.

  Count III alleges "[t]hat the contractual relationship between [NYCTA] and Affiliated Physicians [the group of doctors to whom NYCTA referred Straker's case] facilitated [NYCTA's] material representations to the [TAB] regarding plaintiff's `refusal,' [and] that the misrepresentations were offered to the [TAB] with the expectation that the misrepresentations would be relied upon. Plaintiff was injured in that he was deprived of employment and its emoulments, for a period of ten months violating 42 U.S.C. § 1983." Id. at 22.

  Count IV alleges that Straker "is a qualified person suffering from disability as set forth in the Rehabilitation Act of 1973[;]" that he "suffered from a debilitating illness and was handicapped within the meaning of the statute[;]" that he "was qualified as a train operator[;]" and that "he was discharged under the pretext that he refused to give a urine specimen but was discharged because of his handicap." Id.

  Count V alleges that a TWU representative, James Mahoney, approached one of Straker's physicians and "instruct[ed] the doctor not to cooperate" with Straker during the arbitration proceedings. Id. at ¶ 87. By so doing, TWU "attempted to and did seriously undermine plaintiff's defense as well as the arbitration process[,]" id. at 22-23, thereby "breach[ing] its duty of fair representation before the [TAB]" in violation of "federal labor law." Id.


  A. Count I: Due Process/Violation of ...

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