The opinion of the court was delivered by: McKENNA, D.J.
Plaintiff, a former employee of the New York City Department of Corrections ("DOC") and a member of the Moorish-American religious faith, brings this action under 42 U.S.C. § 1983 against the City of New York, the DOC, Michael Caruso, at the relevant time an employee of the New York City Department of Investigation and Inspector General for the DOC, Nicholas Kaiser, at the relevant time an employee of the DOC and an attorney in the Office of Trials and Litigation, and Bernard B. Kerik, at the relevant time the Commissioner of DOC, asserting claims, arising out of facts leading up to the termination of her employment on or about December 18, 1998, for (i) the violation of her right to freedom of association, under the First Amendment to the United States Constitution (Count I), (ii) the violation of her right to due process of law, under the Fourteenth Amendment to the United States Constitution (Counts II, III & IV), and (iii) discrimination in the terms and conditions of her employment, in violation of 42 U.S.C. § 1981 (Count V).*fn1
Defendants move for dismissal pursuant to Fed. R. Civ. P. 12(b)(1) & (6) on the grounds that (1) plaintiff's claims are barred by the doctrine of res judicata, (2) plaintiff is collaterally estopped on certain issues, (3) plaintiff's claims are barred by limitations, (4) the individual defendants are entitled to immunity, and (5) as far as plaintiff is challenging the termination of her employment and seeking reinstatement, that claim must be brought in a state Article 78 proceeding (and is barred by limitations).
"Dismissal is proper only if, after accepting all the allegations in the Complaint as true and drawing all reasonable inferences in [plaintiff's] favor, the Complaint fails to allege any set of facts that would entitle [her] to relief." Caiola v. Citibank, N.A., New York, 295 F.3d 312, 321 (2d Cir. 2002) (citation omitted). On a motion under Rule 12, the Court may consider documents attached to the complaint or incorporated in it by reference, or a document relied on in the complaint to a degree that renders the document integral to it. Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002).
Plaintiff brought an action in this Court in 2000 arising out of the same termination of her employment by DOC. El v. City of New York, et al. (00 Civ. 8979 (LMM)) ("2000 Action"). The defendants named in the first amended complaint in the 2000 Action were The City of New York, Department of Corrections, Bernard B. Kerik, Commissioner of the DOC, David Shoenfeld, Warden of the DOC Rikers Island Security Unit, Anthony Serra, his successor, Edward Kurinsky, Commissioner of Investigation of the City of New York, and Rosemarie Maldonado, Administrative Law Judge of the Office of Administrative Trials and Hearings. Caruso and Kaiser were not named as defendants.
In a Memorandum and Order dated June 18, 2002, this Court granted summary judgment in favor of defendants, dismissing the amended complaint in the 2000 action. (Gill Decl., Apr. 15, 2004, Exs. 2 (Memorandum and Order) & 5 (first amended complaint)) ("2002 Decision"). On March 26, 2004, the Court denied plaintiff's motions for reconsideration. In an unpublished summary order filed on March 14, 2005 (mandate July 15, 2005), the Court of Appeals affirmed the grant of summary judgment and dismissal of the complaint.*fn2
"Under the doctrine of res judicata, or claim preclusion, a final judgment on the merits of an action precludes the parties or their privies from relitigating claims that were or could have been raised in the action." Marvel Characters, Inc. v. Simon, 310 F.3d 280, 286-87 (2d Cir. 2002) (citation omitted).*fn3 "Even claims based upon different legal theories are barred provided they arise from the same transaction or occurrence. Res judicata applies even where new claims are based on newly discovered evidence, unless 'the evidence was either fraudulently concealed or it could not have been discovered with due diligence.'" L-Tee Electronics Corp. v. Cougar Electronic Org., Inc., 198 F.3d 85, 88 (2d Cir. 1999) (quoting Saud v. Bank of New York, 929 F.2d 916, 920 (2d Cir. 1991)) (other citations omitted).
Whether a claim that was not raised in the previous action could have been raised therein "depends in part on whether the same transaction or connected series of transactions is at issue, whether the same evidence is needed to support both claims, and whether the facts essential to the second were present in the first."
Marvel, 310 F.3d at 287 (quoting Woods v. Dunlop Tire Corp., 972 F.2d 36, 38 (2d Cir. 1992)).
To determine whether two actions arise from the same transaction or claim, "we look to whether the underlying facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage."
Id. (quoting Pike v. Freeman, 266 F.3d 78, 91 (2d Cir. 2001)).
The first amended complaint in the 2000 Action, brought under 42 U.S.C. § 1983 and state law, asserted claims, arising out of facts leading up to the termination of plaintiff's employment on or about December 18, 1998, for (i) violation of her right to the free exercise of her religion, under the Free Exercise clause of the First Amendment to the Constitution of the United States (Count I), (ii) violation of her right to be free of defendants' inquiry into the truth or falsity of her religion, under the Establishment clause of the First Amendment to the Constitution of the United States (Count II), (iii) violation of her right to free speech and association, under the First Amendment to the Constitution of the United States (Count III), (iv) violation of her right to the equal protection of the laws, under the Fourteenth Amendment to the Constitution of the United States (Count IV), (v) violation of her right to seek judicial relief, under the First Amendment to the Constitution of the United States (Count V), (vi) ...