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Nicolosi v. City of New York

November 20, 2006

JOHN NICOLOSI, PLAINTIFF,
v.
CITY OF NEW YORK; NEW YORK POLICE DEPARTMENT; NEW YORK CITY TRANSIT BUREAU; JOHN GALLANTINI, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; JOHN HOWARD, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; LAURA G. JOHNSON, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY DEFENDANTS.



The opinion of the court was delivered by: Deborah A. Batts, United States District Judge

MEMORANDUM & ORDER

Plaintiff John Nicolosi brings this action against the above-named Defendants, claiming that they violated his constitutional right to due process. Plaintiff asserts this claim pursuant to the Fourteenth Amendment, 42 U.S.C. § 1983 ("§ 1983"), and NY Civil Service Law § 75. He seeks to recover monetary damages and declaratory relief. The individual Defendants are being sued in their individual and official capacities.

Defendants City of New York, New York City Transit Bureau, and New York City Police Department ("Defendants") move to dismiss Plaintiff's claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure on two grounds. First, Defendants argue that Plaintiff is barred from bringing this action by the statute of limitations. Second, Defendants contend that Plaintiff failed to state a claim upon which relief can be granted because he failed to allege that Defendants' conduct was part of an established state procedure rather than random, unauthorized acts by state actors.

For the reasons stated below, Plaintiff's Complaint is DISMISSED WITHOUT PREJUDICE. Plaintiff shall be granted 30 days from the date of this Order to amend his Complaint.

I. BACKGROUND

In August 1986, the New York City Transit Authority ("Transit Authority") brought misconduct charges against Plaintiff. He had been a Transit Police Officer since January 29, 1982. (Compl. ¶ 15.) The charges stemmed from incidents that occurred in July 1984 while Plaintiff was on patrol duty with his partner, Dean Kopp ("Kopp"). Plaintiff was accused of permitting a civilian, Kirk Raja ("Raja"), to possess a firearm and to use that firearm to harass subway passengers. (Compl. ¶¶ 16-19.) At an administrative hearing, Raja testified against Plaintiff. Following the investigation and hearing, Plaintiff was terminated on November 19, 1986. (Compl. ¶ 19.)

On February 20, 1987, Plaintiff brought an Article 78 proceeding in New York State Supreme Court, Kings County seeking his reinstatement. (Compl. ¶ 20.) The case subsequently was transferred to the Appellate Division, Second Department. (Id.) The last document on record in that proceeding is a court order denying Plaintiff's Motion to Enlarge Time to Perfect the Proceeding and dismissing the entire petition. (See Order, In re Nicolosi v. New York City Transit Authority, Mar. 2, 1990.)

Since 1986, Plaintiff claims he diligently searched for Raja and finally located him in November 2003. (Compl. ¶ 22.) In 2003, Raja submitted an affidavit to Plaintiff. In the affidavit, Raja claims that he testified falsely against Plaintiff at the termination hearing and that Kopp was the officer who gave him the gun. (Not. of Defs.' Mot. to Dis., Exh. "A".) Raja claims that Defendants Gallantini, Howard, and Johnson ("Individual Defendants")*fn1 -- all of whom participated in Plaintiff's termination proceedings on behalf of the City -- were aware of these facts. Specifically, Raja asserts that he told the Individual Defendants that Plaintiff did not commit the acts of which he was being accused. (Id.) Raja avers that Gallantini and Howard subsequently told him to lie at the hearing and that if he did not lie, he would be imprisoned for impersonating an officer. (Id.) Raja also claims that when he told Johnson that Plaintiff was innocent of the charges, Johnson told Raja that it was too late to change his original statement. (Id.)

Plaintiff filed this action on January 7, 2004. He claims that due to Howard's, Gallantini's, and Johnson's having coerced Raja's false testimony, his right to due process was violated. Plaintiff further alleges that his termination resulted from Defendants' "policy of failing to control police officers and legal counsel engaged in fraud, concealment, and coercive conduct and maintaining a police code of silence wherein police officers regularly cover up police misconduct." (Compl. ¶ 28.) Plaintiff seeks a declaration that he was denied due process, and reinstatement as a tenured police officer. Plaintiff also seeks compensatory and punitive damages, including attorney's fees.

II. DISCUSSION

In deciding a Rule 12(b)(6) motion, the Court must read the complaint generously, accepting as true all factual allegations therein and drawing all reasonable inferences in favor of the plaintiff. Bolt Elec., Inc. v. City of New York, 53 F.3d 465, 469 (2d Cir. 1995); Mills v. Polar Molecule Corp., 12 F.3d 1170, 1174 (2d Cir. 1993). Dismissal is only proper when it "appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).

Because a Rule 12(b)(6) motion is used to assess the legal feasibility of a complaint, a court should not "assay the weight of the evidence which might be offered in support thereof." Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980). Rather, consideration of a Rule 12(b)(6) motion is limited to the factual allegations in the complaint, documents attached to the complaint as exhibits or incorporated in it by reference, to matters of which judicial notice may be taken, or to documents either in plaintiff's possession or of which plaintiff had knowledge and relied on in bringing suit. Brass v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir. 1993) (citing Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47-48 (2d Cir. 1991)).

A. Statute of Limitations

Defendants argue that Plaintiff's claim is time-barred since he filed this action seventeen years after he was ...


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