The opinion of the court was delivered by: Trager, J
Plaintiff Terrance Malone ("Malone") brings this action pro se against defendants City of New York ("City"), New York City Department of Corrections ("DOC"), Anna M. Kross Center, Warden Brian Riordan ("Warden Riordan"), Deputy Warden Joandrea Davis ("Deputy Warden Davis"), Captain Gerald Davis ("Captain Davis") and Captain Calle ("Captain Calle"), seeking monetary relief for civil rights violations allegedly suffered during the course of his employment.
As grounds for his recovery, Malone cites Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1983 (without specifying which constitutional rights were abridged or violated). Malone also alleges violations of:
(1) a statute prohibiting harassment and abuse in debt collection practices, 15 U.S.C. § 1692(d)(2); (2) statutes prohibiting federal employees from making false representations or relying on fraudulent documents, 18 U.S.C. §§ 1000, 1002 and (3) a statute permitting judges to grant, upon motion by a government attorney, temporary restraining orders to prevent harassment of victims or witnesses in federal criminal trials, 18 U.S.C. § 1514(c)(1).
Defendants City and Warden Riordan move to dismiss all claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, asserting that Malone has failed to state a claim for which relief can be granted.
In light of Malone's pro se status, facts and arguments first raised in his opposition memorandum are considered in addition to the allegations in his complaint. White v. U.S. Postal Serv., No. 04-CV-0602, 2005 WL 408047, at *1 (E.D.N.Y. Feb. 16, 2005). As defendants have already addressed Malone's additional allegations in its reply, they are not prejudiced by this allowance. For the purposes of this motion to dismiss, the following facts are accepted as true.
Neither the complaint nor the opposition memorandum is entirely clear or consistent in setting forth Malone's claims. He essentially alleges that a harsh upbraiding by an immediate supervisor, Captain Davis, and related disciplinary action taken against him were discriminatory and, therefore, violated Title VII and Malone's constitutional rights. Pl.'s Opp'n to Def.'s Mot. to Dismiss ("Pl.'s Opp'n") ¶¶ 1, 6. He also claims that the disciplinary proceedings were brought in retaliation for his complaints about Captain Davis's conduct. Pl.'s Opp'n ¶ 5. Malone seeks compensatory and punitive damages. Compl. ¶ 17.
At the time of the incidents described, Malone was employed as a corrections officer for the DOC at the Anna M. Kross Center. Compl. ¶ 1. While Malone refers only obliquely to the events preceding those in his complaint, it appears that Captain Davis, his direct supervisor, reprimanded Malone for failing to respond to a prison alert. Id. at ¶ 3. After the alert had passed, Captain Davis telephoned Malone and demanded an explanation for the incident. Id. Malone explained that he had been unable to assist the other officers because he felt overheated and weak.
Id. Captain Davis telephoned two more times in rapid succession, demanding, in profane language, that Malone give him a report of the incident and warning Malone not to take the matter lightly. Id. at ¶¶ 4, 5.
Following the last call, Captain Davis, accompanied by Captain Calle, arrived at Malone's post and continued to upbraid him. Compl. ¶ 7. Captain Davis pointed his finger at Malone's face and demanded an explanation for Malone's failure to respond to the alert. Id. at ¶ 11. Malone again explained that he had been feeling unwell, and Captain Davis responded, "That's bullshit, I'd expect that from a female officer - not you." Id. Malone requested that they cease discussing the matter in front of the inmates, to which Captain Davis replied: "Fuck the inmates." Id.
Captain Davis proceeded to demand numerous reports of Malone, some of which, such as a report explaining why he was out of uniform (Malone asserts he was properly uniformed), appear groundless and intended to harass. Compl. ¶ 12. While pleading with Captain Davis to desist, Malone felt numbness and tingling in his left arm, shortness of breath and a sharp pain in his chest; he then collapsed. Id. at ¶ 13. He was taken to the medical clinic and later transported to the hospital by ambulance. Id. at ¶ 14. Malone asserts that the dressing-down he received in direct view of the inmates diminished their respect for his authority, resulting in riots, violent tantrums and assaults that jeopardized his and his colleagues' safety.
Malone apparently complained about this incident by filing both an internal grievance and a charge with the United States Equal Employment Opportunity Commission ("EEOC"). Pl.'s Opp'n ¶ 5. Attached to the complaint is an EEOC "right to sue" letter, dated May 31, 2005, which states that the EEOC closed its file on Malone's charge because the facts alleged "fail to state a claim under any of the statutes enforced by the EEOC." Compl. ¶ 8. There is no indication of the substance of his charge or of the date on which Malone submitted it. Id.
Malone alleges he was disciplined again soon after the EEOC dismissed his charge. Compl. ¶¶ 1, 16. On June 14, 2005, Deputy Warden Davis summoned Malone and his union delegate to her office, told Malone he was guilty of insubordination and proposed taking away four of his vacation days. Id. at ¶ 16. Although Warden Riordan was not present, Deputy Warden Davis stated that Riordan believed Captain Davis had not acted improperly. She insisted that Malone accept this belief. Id. When he refused and sought to leave her office, Deputy Warden Davis threatened to suspend him. Id. Malone alleges that, in response to his refusal, his supervisors filed a charge of insubordination and a false charge of assaulting a supervisor with the Office of Administrative Trials and Hearings ("OATH"), a central tribunal with the authority to conduct hearings for city agencies, boards or commissions. Pl.'s Opp'n ¶¶ 5, 9. At the time he filed his opposition brief, Malone faced a hearing on these charges before an OATH judge. Id. at ¶ 9.
Malone cannot maintain claims against all named defendants. The DOC, an agency of the city of New York, and the Anna M. Kross Center, a DOC facility, are non-suable entities, so all claims against these two defendants must be dismissed. See N.Y.C. Charter Ch. 17 § 396; Adams v. Galletta, 966 F. Supp. 210, 212 (S.D.N.Y. 1997).
Malone's Title VII claims against individual defendants must also be dismissed, as Title VII does not provide for individual liability. Wrighten v. Glowski, 232 F.3d 119, 120 (2d Cir. 2000).
Furthermore, the Section 1983 claims against Captain Davis, Captain Calle and Deputy Warden Davis are dismissed because the record contains no evidence that Malone has served them with the complaint. If a plaintiff fails to serve process on a defendant within 120 days of filing the complaint and does not demonstrate good cause for such failure, a court may, at its discretion, dismiss claims against that defendant. Fed. R. Civ. P. 4(m); Beauvoir v. U.S. Secret Serv., 234 F.R.D. 55, 57-59 (E.D.N.Y. 2006). Malone was aware of his failure of service but did not comply with a July 12, 2005 order from Magistrate Judge Lois Bloom, to serve process on the individual defendants. Nor did he offer any reason for his failure of service. Over a year after the Magistrate Judge's order, Malone still has not served these defendants with process, so Malone's claims against Captain Davis, Captain Calle and Deputy Warden Davis are dismissed with prejudice. See Seabrook v. City of New York, No. 04-CV-2496, 2006 WL 1620161, at *6 (E.D.N.Y. June 13, 2006) (dismissing action with prejudice when plaintiff failed to serve process for nine months despite Magistrate Judge's Order).
Malone also cannot maintain Section 1983 claims against the City. Section 1983 applies to municipal defendants only if an unconstitutional pattern, policy or practice is alleged. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690-91 (1978). As Malone's pleadings contain no such allegations, his Section 1983 claims against the City must be dismissed. Dean v. N.Y. City Transit Auth., 297 F. Supp. 2d 549, 555 (E.D.N.Y. 2004). However, Malone is granted leave to amend his complaint with facts alleging a widespread pattern of discrimination by the City, if he can. See id.
Malone's remaining claims include his Title VII claims against the City and his Section 1983 claims against Warden Riordan. Each is discussed in turn.
(2) Motion to Dismiss: Legal Standards
In considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), the complaint is construed liberally, all factual allegations are accepted as true and all inferences are drawn in the plaintiff's favor. Leibowitz v. Cornell Univ., 445 F.3d 586, 590 (2d Cir. 2006). The complaint may not be dismissed "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." Id. (quoting Conley v. Gibson, 335 U.S. 41, 45-46 (1957)). Pleadings drafted by pro se ...