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Simpson v. O'Sullivan

November 2, 2010


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


Plaintiff Jeremiah Simpson filed suit alleging that Defendants Mary O'Sullivan and Henry Schmitz violated his Fifth Amendment due process rights by: (1) terminating him from a volunteer position at the New York Veterans Affairs Medical Center; and (2) improperly restricting his right to receive veterans' benefits. Defendants have moved to dismiss Mr. Simpson's Amended Complaint. For the following reasons, that motion is GRANTED.


Mr. Simpson is a disabled American veteran, who incurred his disability in service to the United States. Compl. ¶ 4. Between July 1987 and September 2007, he availed himself of the free medical and dental services he was entitled to as an American veteran with a service-related injury. Compl. ¶ 5. In addition, between September 2001 and September 2007, Mr. Simpson volunteered for Veterans of the Vietnam War, Inc. Compl. ¶ 5. In this capacity, he was permitted to use office space in a Veterans Affairs building. Compl. ¶ 5.

At all relevant times, Ms. O'Sullivan was the Department of Veterans Affairs' Chief of Volunteer Services. Compl. ¶ 6. Mr. Schmitz was the Chief of Veterans Affairs Police and, allegedly, Ms. O'Sullivan's "paramour." Compl. ¶ 7.

In June 2006, Mr. Simpson refused to share unspecified "records" with New York State Veterans Counselor Cynthia Falcone. Compl. ¶ 16. Mr. Simpson contends that Ms. O'Sullivan responded to his refusal by embarking on a campaign of retaliation against him. Compl. ¶ 17.

On July 31, 2006, Ms. O'Sullivan instructed Mr. Simpson to close his office and told him that he was under investigation. Compl. ¶ 9. In September 2006, Ms. O'Sullivan falsely reported to the Internal Revenue Service that Mr. Simpson had failed to report income on his tax returns. Compl. ¶ 11. The IRS concluded that Ms. O'Sullivan's charges were baseless. Id. In June 2007, Ms. O'Sullivan and Mr. Schmitz conspired with an unnamed "officer of the VA Police" to concoct a perjurous allegation that Ms. Simpson had "inappropriately touched a female veteran." Compl. ¶ 13. In February 2008, this investigation concluded when Assistant United States Attorney Lara Gatz determined that Mr. Simpson "did not violate 'any federal criminal law.'" Compl. ¶ 20.

Mr. Simpson claims that, due to this conduct, he has lost his: (1) "unrestricted access" to Veterans Affairs' facilities; (2) office space; and (3) ability to function as a volunteer who provides services to veterans. Compl. ¶ 21. In addition, Mr. Simpson claims that he has ceased taking advantage of the free medical and dental care he previously enjoyed at Veterans Affairs' facilities, because "he cannot bear the humiliation of being treated as a criminal." Compl. ¶ 22. He contends that these actions have violated his Fifth Amendment right to due process of law.


I. Standard of Review on a Motion to Dismiss

In deciding FED. R. CIV. P. 12(b)(6) motions to dismiss, the Court applies a "plausibility standard," which is guided by "[t]wo working principles," Ashcroft v. Iqbal, __ U.S. __, 129 S.Ct. 1937, 1949, 173 L.Ed. 2d 868 (2009); Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). First, although the Court accepts all factual allegations as true, and draws all reasonable inferences in the plaintiff's favor, this "tenet" is "inapplicable to legal conclusions"; thus, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Harris, 572 F.3d at 72 (quoting Ashcroft); Operating Local 649 Annuity Trust Fund v. Smith Barney Fund Management LLC, 595 F.3d 86, 91 (2d Cir. 2010). Second, only complaints that state a "plausible claim for relief" can survive Rule 12(b)(6). Id. Determining whether a complaint does so is "a context specific task that requires the reviewing court to draw on its judicial experience and common sense." Id.

II. Volunteer Position & Office Space Claims

Defendants argue that Mr. Simpson's claims concerning his volunteer position and office space fail because he lacked a Constitutional property or liberty interest in serving as a volunteer or using Veterans Affairs' office space. The Court agrees.

For due process purposes, deciding whether a plaintiff has a property interest is a two-step process. "First, we must determine whether some source of law other than the Constitution, such as a state or federal statute, confers a property right on the plaintiff . . . . Once such a property right is found, we must determine whether that property right 'constitutes a property interest for purposes of the Fourteenth Amendment.'" O'Connor v. Pierson, 426 F.3d 187, 196 (2d Cir. 2005). Here, Mr. Simpson identifies no "state or federal statute" that gave him a property interest in using federal office space or in permitting him to serve as a volunteer with an outside veterans' organization. And, absent such a statute, his property interest claims fail. See Versarge v. Township ...

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