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Sheila Allen v. Nassau County Executive Thomas Suozzi

March 21, 2011


The opinion of the court was delivered by: Joseph F. Bianco, District Judge:



On April 10, 2009, pro se plaintiff Sheila Allen filed this action, alleging violations of her rights based upon, among other things, the alleged unlawful involvement of the defendants in failing to enter into a contract with her company, New Life Business Institute, and subjecting her to criminal investigation and prosecution. On January 6, 2010, Allen filed an Amended Complaint adding new claims and new defendants. On March 8, 2010, defendants filed a motion to dismiss. On March 31, 2010, plaintiff filed an opposition. On April 21, 2010, defendants filed a reply. On February 15, 2011, Magistrate Judge Arlene Lindsay, to whom this matter had been referred for review, issued a Report and Recommendation (the "Report"), which is incorporated by reference herein, recommending the following: (1) that the case be dismissed against defendants John Venditto, Mary Curtis, Kathleen Rice, Thomas Suozzi, and John Imhof for improper service, pursuant to Fed. R. Civ. P. 12(b)(5); (2) that the claims be dismissed against the Nassau County Executive Office, the Nassau County District Attorney's Office, and the Nassau County Department of Social Services and that the County of Nassau, which has not been named, be substituted as the correct party in interest; (3) that County defendants' motion to dismiss the Section 1981 claims be granted; (4) that the Town defendant's motion to dismiss the Section 1981 claims be granted with respect to the Town of Oyster Bay, but denied with respect to defendants Bridgette Hand and Joseph Visconti; (5) that the Title VI claim be dismissed in its entirety; and (6) that the Section 1985 claims be dismissed in their entirety.

On February 24, 2011, counsel for defendants Hand and Visconti submitted objections to the Report. For the reasons stated below, the Court adopts the Report in its entirety.


A district judge may accept, reject, or modify, in whole or in part, the findings and recommendations of the Magistrate Judge. See DeLuca v. Lord, 858 F. Supp. 1330, 1345 (S.D.N.Y. 1994); Walker v. Hood, 679 F. Supp. 372, 374 (S.D.N.Y. 1988). As to those portions of a report to which no "specific written objection" is made, the Court may accept the findings contained therein, as long as the factual and legal bases supporting the findings are not clearly erroneous. See Fed. R. Civ. P. 72(b); Thomas v. Arn, 474 U.S. 140, 149 (1985); Greene v. WCI Holdings Corp., 956 F. Supp. 509, 513 (S.D.N.Y. 1997). As to those portions of a report to which specific written objections are made, the Court reviews such findings de novo. See Fed. R. Civ. P. 72(b); Hynes v. Squillace, 143 F.3d 653, 656 (2d Cir. 1998); United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997).


The Court has conducted a review of the full record, including, among other things, the complaint, the parties' respective submissions in connection with defendants' motion, as well as the Report, applicable law, and defendants' objections. Having reviewed de novo all portions of the Report to which defendants specifically object, and having reviewed the remainder of the Report for clear error, the Court adopts the Report in its entirety, for the reasons set forth therein and below. In particular, defendants Hand and Visconti argue the following: (1) plaintiff's Section 1981 claim cannot survive a motion to dismiss because "allegations based upon 'racial animus' alone, without specifically pleaded factual circumstances is [sic] insufficient to state a cause of action upon which relief may be granted," and "[t]he complaint fails to give fair notice of plaintiff's claim and the grounds upon which it rests" (Objections at 3 (emphasis in original)); and (2) even if a claim has been stated, defendants are entitled to qualified immunity and were not permitted to demonstrate the reasonableness of their actions to the Court. (Objections at 4-5.) As set forth below, these arguments are without merit.

A. Plaintiff Has Stated a Plausible Section 1981 Claim Plaintiff asserts a cause of action under 42 U.S.C. § 1981 against defendants Hand and Visconti. It is well-settled that Section 1981 "prohibits discrimination based on race in the making and enforcement of contracts." See Anderson v. Conboy, 156 F.3d 167, 170 (2d Cir. 1998); see also Turner v. Nat'l R.R. Passenger Corp., 181 F. Supp. 2d 122, 127-28 (N.D.N.Y. 2002). "To establish a claim under § 1981, a plaintiff must allege facts in support of the following elements: (1) the plaintiff is a member of a racial minority; (2) an intent to discriminate on the basis of race by the defendant; and (3) the discrimination concerned one or more of the activities enumerated in the statute (i.e., make and enforce contracts, sue and be sued, give evidence, etc.)." Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d Cir. 1993). Section 1981 claims are analyzed under the same standards as Title VII claims. Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 69 (2d Cir. 2000).

Defendants argue that Allen has failed to allege specific factual allegations to support a plausible claim under Section 1981. The Court disagrees. As noted by Magistrate Judge Lindsay in her thorough and well-reasoned Report, with respect to Hand and Visconti, the Amended Complaint sets forth a number of allegations of adverse discriminatory conduct by these defendants toward plaintiff that plaintiff asserts were based upon her race. For example, the Amended Complaint alleges that, after Allen was awarded the County contract, Hand and Visconti began to harass her and refused to honor the contract for services that she held with them. See Am. Compl. ¶ 16 ("Joe Viscanti and Bridgette Hand under the supervision of John Venditto began to harass my company New Life Business Institute Inc. and Sheila Allen tremendously. They would no longer honor my contract for services that I held with them."). In addition, plaintiff asserts that Hand and Visconti forced former students to write false complaints about her business, under threat of losing government benefits, in order to ruin her company. See id. ("The Town of Oyster Bay Workforce Development Bridgette Hand and Joe Viscanti under the supervision of John Venditto began writing bogus complaints to the New York State Department of Education as well as forcing former students to write complaints about New Life Business Institute, or these clients would lose their Government benefits."). Furthermore, the Amended Complaint asserts that these defendants, along with others, "began to re-train former students of New Life Business Institute to discredit our training and services." Id. ¶ 17.

The Amended Complaint not only specifies the specific adverse actions taken by the defendants against plaintiff, but alleges over and over again that these actions were based upon racial animus. See id. ¶ 16 ("The Town of Oyster Bay, John Venditto, Joe Viscanti, and Bridgette Hand had violated my Constitutional rights because I was African American decent [sic] and was enjoying the same benefits as they were afforded. They intentionally set out to destroy New Life Business Institute and wanted our establishment to lose our license to operate." ). Although defendants argue that this racial animus is only alleged in a conclusory manner, that is incorrect. With respect to the racial intent, plaintiff specifically asserts that vendors of Caucasian descent had received no-bid contracts for the past twenty-five years and had not been subjected to the same scrutiny as plaintiff and her company. See id. ¶ 52 ("The three vendors that were awarded the no-bid contract for assessment and training services for the past twenty-five years were of a Caucasian decent [sic] and never had to be placed under a criminal investigation."). Thus, plaintiff alleges that the defendants' objective, as allegedly indicated by the disparate treatment of plaintiff and Caucasian vendors, was to avoid dealing with an African-American vendor:

The Town of Oyster Bay, Bridgette Hand, and Joe Viscanti are in violation of 42 U.S.C. § 1985 and 42 U.S.C. § 1981 and acted illegally and outside their scope of authority by exhibiting racial discrimination due to me being of an African American decent [sic]. In the past they were not required to deal with a training Institution, other than Hunter Business School who is owned by a man of Caucasian decent [sic] and a frequent Campaign donor of Mr. Thomas Suozzi. The racial and unjust treatment such as harassment, ridicule, questioning and complaints given to Sheila Allen and New Life Business Institute was not given to the other training facility contracted for services Hunter Business School located in East Meadow, N.Y.

Id. ¶ 53 (emphasis in original).

Accepting all of the factual allegations in the complaint as true and drawing all reasonable inferences in plaintiff's favor, the Amended Complaint sets forth a plausible Section 1981 claim under the standard articulated in Ashcroft v. Iqbal, --- U.S. ----, 129 S. Ct. 1937 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). The complaint gives defendants notice of the claim and sets forth sufficiently detailed allegations to describe the basis for the claim. Although defendants argue that the Amended Complaint does not meet ...

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