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Theo Hines, Sr. Pro Se, On Behalf of Himself, et al v. Central New York Regional Transportation Authority

August 1, 2011

THEO HINES, SR. PRO SE, ON BEHALF OF HIMSELF, ET AL., PLAINTIFF,
v.
CENTRAL NEW YORK REGIONAL TRANSPORTATION AUTHORITY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Andrew T. Baxter, United States Magistrate Judge

ORDER and REPORT-RECOMMENDATION

The Clerk has sent to the court for review this complaint, together with an application to proceed in forma pauperis (IFP) from pro se plaintiff, Theo Hines, Sr. (Dkt. Nos. 1, 2). In his complaint, plaintiff appears to allege that he was terminated from his employment as a bus driver with defendant Central New York Regional Transportation Authority ("CENTRO"), based upon his race, in violation of a multitude of statutes and constitutional provisions. (Dkt. No. 1). The complaint lists 42 U.S.C. §§ 1981, 1983, 1985, 1986 and 1988; Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq.; Title I of the Labor Management Reporting and Disclosure Act ("LMRDA"), 29 U.S.C. §§ 411-15; The Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq.; the 1st, 4th, 5th, 8th , 9th, 13th, and 14th Amendments of the United States Constitution; Article I, §§ 8, 10 of the United States Constitution; and a variety of "pendent"*fn1 New York State statutes and constitutional provisions. (Dkt. No. 1 at 2-4).*fn2 Plaintiff's claims include violations of Due Process and Equal Protection.*fn3 Plaintiff seeks "compensation, back pay." (Dkt. No. 1 at 11).

I. IFP Application

Plaintiff has filed this action, requesting that he be granted IFP status pursuant to 28 U.S.C. § 1915. (Dkt. No. 2). The statute governing IFP actions provides that the court may authorize the commencement of a civil action without the payment of fees, when the plaintiff files an affidavit that includes a statement that he is unable to pay the required fee or give security therefor. 28 U.S.C. § 1915(a)(1). Plaintiff in this case has filed a form-motion to proceed IFP. (Dkt. No. 2).

A review of the application shows that plaintiff states that he is not employed and, in the last year, has received funds from "Unemployment." (Dkt. No. 2 at 2). Plaintiff also states that he has a checking account with a balance of $1,200.00, and he owns his house, worth $71,000.00. Id. However, plaintiff has no dependents, and he has not indicated how much equity he has in his home, nor has he stated how his expenses may affect his ability to pay the filing fee. The filing fee in this court is $350.00, and plaintiff has not given this court enough information for it to make a determination of whether plaintiff meets the financial requirements for IFP status.

Even assuming that plaintiff meets the financial criteria for IFP, section 1915 also provides that the court may dismiss a complaint at any time if the court finds that the action is (i) frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B)(i)-(iii). To survive dismissal for failure to state a claim, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is "plausible on its face." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Bell Atl. Corp., 550 U.S. at 555). Even if plaintiff had paid the filing fee, the court has "inherent authority" to dismiss a complaint on the same basis. Fitzgerald v. First East Seventh Street Tenants, 221 F.3d 362, 363-64 (2d Cir. 2000). Dismissal for failure to state a claim may be based upon either, or both, of two grounds:

(1) a challenge to the sufficiency of the pleading under Fed. R. Civ. P. 8(a)(2); or (2) a challenge to the legal cognizability of the claim. Bridgeforth v. Popovics, No. 09-CV-545, (GTS/RFT), 2011 WL 2133661, at *2 (N.D.N.Y. May 25, 2011) (citing Jackson v. Onondaga County, 549 F. Supp. 2d 204, 211 nn. 15-16 (N.D.N.Y. 2008) (discussing the standard for a motion to dismiss)).

In deciding whether an action is frivolous, the court must determine whether the complaint lacks an arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). A claim will be frivolous when it is "based on an 'indisputably meritless legal theory'. . . or [when] a dispositive defense clearly exists on the face of the complaint." Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998) (citing Benitez v. Wolff, 907 F.2d 1293, 1295 (2d Cir. 1990) (per curiam); Pino v. Ryan, 49 F.3d 51, 53 (2d Cir. 1995)). The court must keep in mind that when a plaintiff proceeds pro se, particularly when he or she claims violations of civil rights, the pleadings must be construed with great liberality. Sealed Plaintiff v. Sealed Defendants, 537 F.3d 185, 191 (2d Cir. 2008) (citation omitted). The court must interpret the pleadings to raise the strongest arguments they suggest. McPherson v. Coombe, 174 F.3d 276, 279 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). However, pro se status does not exempt the plaintiff from compliance with relevant rules of both procedural and substantive law. Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006) (citation omitted). Finally, if a liberal reading of the complaint "gives any indication that a valid claim may be stated," the court must afford plaintiff leave to amend. Cuoco v. Moritsugo, 222 F.3d 99, 112 (2d Cir. 2000).

The court has reviewed plaintiff's complaint for sufficiency under these standards and finds that, notwithstanding the liberality with which pro se actions are treated, plaintiff's complaint fails to set forth factual allegations plausibly suggesting that he has stated a claim upon which relief may be granted, and that some of plaintiff's claims are frivolous. Thus, notwithstanding the insufficiency of plaintiff's IFP application, the court will grant IFP status in order that the complaint may be filed and then, recommend dismissal of the complaint under section 1915(e). The court will recommend dismissal with prejudice because I find that no amendment will cure the defects in the pleading.

II. Background

Plaintiff's*fn4 pleading is very difficult to read and understand. In the caption of the complaint, it appears that plaintiff has sued CENTRO and eight individual executives of the company; the Amalgamated Transit Union ("ATU") and individual members of its executive committee; CENTRO's "Workers Compensation Lawyers;" and CENTRO's "John Doe" Representatives for the New York State Unemployment Insurance Board. (Dkt. No. 1 at 1). In the body of the complaint, plaintiff also names HR ONE Consulting Firm and the New York State Workers Compensation Board as "Defendants." (Dkt. No. 1 at 5-6).

It appears that plaintiff is challenging the termination of his employment as a bus driver for defendant CENTRO on July 18, 2008. (Dkt. No. 1 at 2). Plaintiff states that he began working as a bus driver for CENTRO in February of 1992, and that his employment was governed by a Collective Bargaining Agreement ("CBA") between defendants CENTRO and ATU.*fn5 (Dkt. No. 1 at 4-5, 9). Plaintiff states that defendants agreed with each other to "attach a Badge of infamy" to plaintiff by "unlawfully falsely classifying him as a drug head thereby, subjecting him (without due process) to a code not applicable to any other employee." (Dkt. No. 1 at 9). Plaintiff claims that this "Badge of infamy" caused him to be denied the right and/or privilege "(as was afforded to other bus operators, both black and white) to have his initial drug tests confirmed, if the initial test showed positive." Id.

Plaintiff's termination was based upon a positive drug test, however, plaintiff claims that the test was a "false-positive," and that defendants fraudulently failed to "reconfirm" the test. (Dkt. No. 1 at 2). Plaintiff claims that he only recently*fn6 discovered that his termination was discriminatory and based upon his race, when his three-year Unemployment Insurance Benefits case terminated in plaintiff's favor. (Dkt. No. 1 at 2). Plaintiff states that the ALJ in the Unemployment Insurance Benefits case granted plaintiff benefits because defendant CENTRO failed to produce any witnesses properly establishing the chain of custody of the plaintiff's urine specimen "to sustain the admissibility of the test results." (Dkt. No. 1 at 2 & Dkt. No. 1-1; Plf.'s Ex.). Based upon this favorable decision, plaintiff concludes that he did not commit misconduct, and instead, was terminated based on his race.*fn7 Plaintiff states that prior to his termination, CENTRO discovered that plaintiff had spoken to "two (2) known African American male ZEBRA TEAM members because his union had refused/failed to present medical and/or investigatory evidence that his random drug test was a false positive and/or that said false positive . . . was never actually re-confirmed by another (second) drug lab. . . ." (Dkt. No. 1 at 2). Plaintiff has apparently concluded, based upon this Administrative Law Judge's decision, that he must have been terminated because of his race.

III. Workers Compensation Board/Attorneys

A. Eleventh Amendment

It is now well-settled that the state itself cannot be sued under section 1983. Komlosi v. New York State OMRDD, 64 F.3d 810, 815 (2d Cir. 1995) (citing Will v. Michigan Department of Police, 491 U.S. 58, 71 (1989)). This is true whether the court is considering Eleventh Amendment immunity or a statutory interpretation of section 1983. Id. at 815 n.3. Immunity from suit under the Eleventh ...


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