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Person v. White

July 2, 2010


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


On September 10, 2009, pro se plaintiff Edward M. Person, Jr., ("Plaintiff" or "Person") commenced this action against Defendants Scott White ("White"), L.I. Property Maintenance Corp. ("L.I. Property"), Ugly Dog, Inc. ("Ugly Dog"), NorGuard Insurance Co. ("NorGuard"), InterGUARD, Ltd. ("InterGUARD"), Workers' Compensation Law Judge Jeff Lerner ("Judge Lerner"), State of New York Workers' Compensation Board ("WCB") and Lisa Tortora ("Tortora"). (Compl. ¶¶ 4-11.) Plaintiff brings his claims pursuant to 42 U.S.C. § 1983, and 42 U.S.C. § 1985. (Compl. ¶¶ 24-36.) Pending before this Court are Defendants' motions to dismiss the action pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6), and Defendants White, L.I. Property and Ugly Dog's motion for attorneys' fees pursuant to 42 U.S.C. § 1988. For the following reasons Defendants' motions to dismiss are GRANTED. The motion for attorneys' fees brought by Defendants White, L.I. Property and Ugly Dog is DENIED.


Plaintiff alleges that on September 25, 2006, he suffered a work-related injury when he slipped and fell while walking down a trailer ramp at a storage facility owned by L.I. Property, his employer. (Pl.'s Opp'n 27, D.E. 27-1.) As a result of the fall, Plaintiff's body allegedly "slammed to the ground" causing him to land on his rear end, elbow and back. Id. Plaintiff alleges that the "foreman"*fn1 and another co-worker named "Santos" witnessed the incident. Id. Immediately after his fall, Plaintiff allegedly took a break to "walk back and forth to see if [his] leg was okay." Id. On September 28, 2006, Plaintiff alleges that he sought treatment of his injuries at the Southside Hospital emergency room. Id.

Thereafter, Plaintiff filed a claim with WCB seeking workers' compensation for his injury. Id. at 24. At the WCB hearing on March 15, 2007 Workers' Compensation Law Judge Lerner disallowed Plaintiff's claim, and found that although Plaintiff slipped at work, he did not injure himself. Id. In making his decision, Judge Lerner relied on the testimony of the "foreman" and a co-worker named "Robert." Id. Both testified that although Plaintiff fell on September 25, 2008, the fall did not occur at the storage facility as the Plaintiff alleged, but rather at a Wendy's Restaurant. Id. at 28. Additionally, the "foreman" and "Robert" denied that Plaintiff was injured as a result of this fall because they did not recall seeing Plaintiff fall off his feet, take a break after falling, or limp after the fall. Id. Further, "Santos" denied working with Plaintiff on the day of the incident. Id. On September 24, 2007, the WCB found that the record supported Judge Lerner's decision and affirmed. Id. The WCB found "Robert" and "Santos'" testimonies about the alleged injury to be impartial and credible since they no longer worked for L.I. Property when they testified. Id. On July 11, 2008, WCB denied Plaintiff's application for a full WCB review or reconsideration of the WCB decision. Id. at 31.

Plaintiff subsequently filed a notice of appeal on August 8, 2008 to the New York Supreme Court Appellate Division, Third Department. Id. at 6. On October 1, 2009, the Third Department affirmed. See Matter of Person v. LI Maintenance Ad, 66 A.D.3d 1063, 888 N.Y.S.2d 512 (3d Dep't 2009). On April 29, 2010, the New York Court of Appeals denied leave to appeal. See 14 N.Y.3d 708, 926 N.E.2d 1237, 900 N.Y.S.2d 731 (Table), 2010 WL 1708013 (N.Y. 2010).

Plaintiff then initiated this proceeding seeking $400,000 in compensatory damages. (Compl. ¶ 37.) Plaintiff alleges fraud against White, L.I. Property and Ugly Dog, breach of contract against each of these Defendants, NorGuard and InterGUARD, conspiracy to deny substantive due process and equal protection against each of these Defendants and Defendant Tortora, pursuant to § 1985(3), and denial of substantive due process and equal protection against all of these Defendants and Defendants Judge Lerner and WCB, pursuant to § 1983. (Compl. ¶¶ 13-36.) White, L.I. Property, and Ugly Dog (Defs.' Mot. to Dismiss 3, D.E. 17-1) NorGuard and InterGUARD, (Defs.' Mot. to Dismiss 7, D.E. 16) and Judge Lerner and WCB move jointly to dismiss Plaintiff's Complaint. (Defs.' Mot. to Dismiss 3, D.E. 14-3.) Tortora moves separately to dismiss Plaintiff's Complaint. (Defs.' Mot. to Dismiss 4, D.E. 19.) All Defendants move to dismiss the Complaint in its entirety under both Rule 12(b)(1) and Rule 12(b)(6). Defendants White, L.I. Property, Ugly Dog, NorGuard, InterGUARD and Tortora also request attorneys' fees pursuant to 42. U.S.C. § 1988. (Defs.' Mot. to Dismiss 16, D.E. 17-1, 28, D.E. 16, 2, D.E. 26.)


I. Standards Of Review

A. Rule 12(b)(1)

To survive a FED. R. CIV. P. 12(b)(1) motion to dismiss, the Court may consider affidavits and other materials beyond the pleadings. See Robinson v. Gov't of Malaysia, 269 F.3d 133, 141 n.6 (2d Cir. 2001). Additionally, the Court may take judicial notice of public documents, including the records of administrative proceedings. See Greenblatt v. Gluck, 03-CV-0597, 2003 U.S. Dist. LEXIS 3846, at *2 n.1 (S.D.N.Y. Mar. 17, 2003); Dutton v. Swissport USA, Inc., 04-CV-3417, 2005 U.S. Dist. LEXIS 40899, at *2 n.1 (E.D.N.Y. July 1, 2005) (noting that a WCB hearing transcript is analogous to a state administrative procedure which is a public record). Under Rule 12(b)(1), the Court will deem all factual allegations in the complaint as true. See Jaghory v. N.Y. State Dep't of Educ., 131 F.3d 326, 329 (2d Cir. 1997). When a defendant challenges the jurisdiction of a federal court, such jurisdiction must be shown affirmatively. See Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998) (citing Norton v. Larney, 266 U.S. 511, 515, 45 S.Ct. 145, 147, 69 L.Ed. 413, 416 (1925)). The plaintiff may not rely on inferences favorably drawn from the pleadings to assert such jurisdiction. See id.

B. Rule 12(b)(6)

In accordance with the Supreme Court's decision in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed. 2d 929 (2007), a Rule 12(b)(6) motion to dismiss should be decided by applying a "plausibility standard," which is guided by "[t]wo working principles." Aschroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949, 173 L.Ed. 2d 868, 884 (2009); Harris v. Mills, 572 F.3d 66, 72 (2d. Cir. 2009). First, the court must accept all allegations as true, Aschroft, 129 S.Ct. at 1949, 173 L.Ed. 2d at 884; Harris, 572 F.3d at 72, and draw all reasonable inferences in the favor of the non-moving party. See Finnan v. Ryan, 357 F. App'x 331, 333 (2d Cir. 2009). However, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice" to state a claim. Harris, 572 F.3d at 72 (quoting Aschroft, 129 S.Ct. at 1949, 173 L.Ed. 2d at 884). Second, only complaints that state a "plausible claim for relief" will survive a 12(b)(6) motion to dismiss. Id. (quoting Aschroft, 129 S.Ct. at 1950, 173 L.Ed. 2d at 884). "Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. (quoting Aschroft, 129 S.Ct. at 1950, 173 L.Ed. 2d at 884). To satisfy this second prong plaintiffs must "nudge[] [their] claims . . . across the line from conceivable to plausible." Aschroft, 129 S.Ct. at 1951, 173 L.Ed. 2d at 885 (internal quotation marks omitted) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167 L.Ed. 2d 929, 949 (2007)). "A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Aschroft, 129 S.Ct. at 1940, 173 L.Ed. 2d at 874. Finally, "the Court may take judicial notice of records and reports of administrative bodies, items in the record of the case, matters of general public record, and copies of documents attached to the complaint." Commer v. McEntee, 00-CV-7913, 2006 U.S. Dist. LEXIS 82395, at *23 (S.D.N.Y. Nov. 9, 2006).

The Court recognizes that pro se plaintiffs enjoy a more liberal pleading standard. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 2200, 167 L.Ed. 2d 1081, 1086 (2007) ("[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.") (internal quotation marks omitted) (quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed. 2d 251, 261 (1976)). Although "[t]his is particularly so when the pro se plaintiff alleges that her civil rights have been violated," Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008), pro se plaintiffs must ...

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