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Joseph Clark v. Thoman Dinapoli As State Comptroller of the State of

October 13, 2011


The opinion of the court was delivered by: Thomas J. McAVOY Senior United States District Judge


Plaintiff Joseph Clark commenced the instant action pursuant to 42 U.S.C. § 1983 asserting claims for violations of his rights as guaranteed by the due process and equal protection clauses of the Fourteenth Amendment and the First Amendment. He also claims a violation of N.Y. Gen. Mun. Law § 207-c. Presently before the Court is Defendants Thomas DiNapoli, New York State and Local Police and Fire Retirement System, Robert Coughlin and Dana Riell's (collectively the "State Defendants") motion to dismiss pursuant to Fed. R. Civ. P. 12(c).


Plaintiff was employed as a police officer by the Town of Clarkstown (the "Town") in Rockland County, New York. In 1989, Plaintiff began receiving benefits pursuant to N.Y. Gen. Mun. Law § 207-c.*fn1 In 1995, the Town, through then Chief of Police William Collins, applied for retirement disability benefits pursuant to N.Y. Retire. & Soc. Sec. Law § 363-c on Plaintiff's behalf.*fn2 On or about February 4, 1999, Defendant State Comptroller DiNapoli issued a determination granting the Town's application for the retirement of Plaintiff for disability incurred in the performance of duty.*fn3 As a result of the Comptroller's determination, the Town removed Plaintiff from its payroll.

Plaintiff requested a hearing and redetermination. In September 1999, the Retirement System started a hearing purportedly to address certain procedural issues. Nevertheless, the hearing officer decided the case on the merits. The Retirement System issued a preliminary determination, but included a cover letter informing Plaintiff that he had to file a proceeding pursuant to N.Y.C.P.L.R. Art. 78 within four months. Plaintiff filed an Article 78 proceeding challenging the preliminary determination. The Retirement System then advised Plaintiff that it would schedule further proceedings on the merits. As a result, in 2000, the Article 78 proceeding was dismissed on the basis of Plaintiff's failure to exhaust his administrative remedies.

In 2001, Plaintiff applied for accidental disability retirement benefits. Plaintiff filed the application "without prejudice to his pending request for a hearing and redetermination of the granting of the employer's application for his performance of duty disability retirement. . . ." Am. Compl. at ¶ 47.

In 2002, Plaintiff traveled to Albany, New York to inspect his file at the Retirement System. The file was in a state of disarray. While Plaintiff was reviewing his file, he was surrounded by security guards. In August 2002, Defendant Coughlin, an attorney for the New York State and Local Retirement System, wrote Plaintiff stating "in the event you wish to continue with the administrative hearing on the Performance of Duty Disability Retirement application, please advise us in writing within thirty days of the date of this letter." By letter dated October 8, 2002, Coughlin again wrote Plaintiff stating that, because he had not received a response to the October 8 letter, "the New York State and Local Retirement System considers the matter to be closed."

"In late 2005, the Retirement System informed the Plaintiff that it had closed the Plaintiff's hearing file 'by mistake' and opened a new file with a new case number." Am. Compl. at ¶ 55. Thereafter, Plaintiff sent numerous letters to the Retirement System "asking legitimate questions that needed to be answered but the Retirement System repeatedly failed to respond. . . ." Id. at ¶ 55. In September 2006, Plaintiff sent a letter to George King, General Counsel to the Retirement System, "explaining the history of his case and enclosing copies of earlier correspondence." Id. at 71. In November 2006, King responded to Plaintiff that [a]t the hearing, the issues to be addressed will be whether you were permanently incapacitated for the performance of duties and whether the Chief of Police was the 'head of a department' for the purpose of filing the application for the Performance of Duty Retirement. As the party requesting the hearing, you will bear the burden of proof. . . . These are the only issues to be addressed at the hearing, and the Retirement System will not stipulate to any other matters.

In a subsequent letter sent in December 2006, King advised Plaintiff that he could raise whatever issues he chose before the hearing officer and that "[t]he Retirement System attorney may object to any [issues] that are felt to be improper and/or irrelevant to the proceeding, and the hearing officer will decide the matter."

Plaintiff then received a notice scheduling a hearing for January 29, 2007. Plaintiff was subsequently advised that the hearing had been adjourned to February 22, 2007. Plaintiff sent letters concerning the nature of the hearing, to which he did not receive a response. By letter dated February 16, 2007, the Retirement System notified Plaintiff that the hearing was adjourned. Thereafter, Plaintiff received a transcript indicating that a proceeding was held on February 22, 2007, and that Defendant Dana Riell, an attorney for the Retirement System, "told the hearing officer that the hearing was adjourned at the request of Plaintiff." Id. at 81. Plaintiff contends that "the adjournment was [not at his request, but] due to the failure of the Retirement System to answer Plaintiff's phone calls and letters. . . ." Id.

Thereafter, Riell took the position that Plaintiff would not be allowed to raise any issues other than those set forth in the 2000 interim decision.*fn4 By letter dated June 4, 2007, Riell wrote to Plaintiff "stating that the Retirement System would not give Plaintiff a hearing on the merits but, instead, would only hold a hearing on whether his application 'should be dismissed for [his] failure to prosecute [his] claim.'" Id. at ¶ 94. In his letter, Riell wrote that:

In a February 20, 2007 letter, the Retirement System requested that you provide, no later than April 6, 2007, information that would allow the Retirement System to schedule a hearing at a time and date convenient to you to present medical evidence. A copy of that letter is enclosed. To date, the information has not been received.

Id. at ¶ 95.*fn5

Ultimately, a hearing was scheduled for November 30, 2007 to determine whether Plaintiff's request for a hearing should be dismissed for failure to prosecute. At the hearing Plaintiff "was allotted only [a] few minutes" to explain why his case should not be dismissed. Id. at ¶ 104. The hearing officer declined to dismiss Plaintiff's request for a hearing. Id. at ¶ 105.

Thereafter, Plaintiff commenced the instant litigation. On December 15, 1999, after the filing of this lawsuit, the Retirement System held a hearing. Plaintiff raised various issues, including a motion to recuse the hearing officer. The hearing officer rejected the motion to recuse, determined that Plaintiff had the burden of proof at the hearing, rejected the equal protection and due process claims based on the delay in providing a hearing, and concluded that Plaintiff failed to satisfy his burden of proof sufficient to overturn the Comptroller's determination. Plaintiff did not file an Article 78 petition to challenge that determination. Plaintiff contends that the hearing was fraught with various procedural problems, including ex parte communications and violations of the State Administrative Procedure Act.

Presently before the Court is the State Defendants' motion to dismiss pursuant to Fed. R. Civ. P. 12(c).


The standard pursuant to Fed. R. Civ. P. 12(c) is identical to that under Rule 12(b)(6). Patel v. Contemporary Classics of Beverly Hills, 259 F.3d 123, 126 (2d Cir. 2001). "Federal Rule of Civil Procedure 8(a)(2) requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99 (1957)). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations . . . a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 1964-65. "Factual allegations must be enough to raise a right to relief above the speculative level. . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. at 1965. "'[T]he pleading must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action.'" Id. at 1965 (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004)). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). A complaint does not suffice "if it tenders naked assertions devoid of further factual enhancement." Ashcroft, 129 S. Ct. at 1949. Legal conclusions must be supported by factual allegations. Iqbal, at 1950. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 1949. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Id. (quoting Twombly, 550 U.S. 557) (internal quotations omitted).

With this standard in the mind, the Court will address the pending motion to dismiss.


Defendants move to dismiss on the grounds that the Amended Complaint violates

Fed. R. Civ. P. 8, the claims for money damages are barred by the Eleventh Amendment, the Complaint fails to allege personal involvement of the individual State Defendants, the Complaint fails to state a claim, the claims are barred by laches, Plaintiff is estopped from alleging that his disability application was improperly granted, this action is untimely, and Defendants are entitled to qualified immunity.

a. Rule 8

Defendants first move to dismiss the Complaint on the ground that it fails to comply with Fed. R. Civ. P. 8's "short and plain statement" requirement. As the Second Circuit has explained:

Rule 8 provides that a complaint "shall contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). The statement should be plain because the principal function of pleadings under the Federal Rules is to give the adverse party fair notice of the claim asserted so as to enable him to answer and prepare for trial. . . . The statement should be short because "[u]nnecessary prolixity in a pleading places an unjustified burden on the court and the party who must respond to it because they are forced to select the relevant material from a mass of verbiage."

Salahuddin v. Cuomo, 861 F.2d 40, 41-42 (2d Cir. 1988) (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1281, at 365 (1969)).

When a complaint does not comply with the requirement that it be short and plain, the court has the power, on its own initiative or in response to a motion by the defendant, to strike any portions that are redundant or immaterial . . . or to dismiss the complaint. Dismissal, however, is usually reserved for those cases in which the complaint is so confused, ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well disguised. . . . When the ...

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