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Gertskis v. City of New York Department of Health and Mental Hygiene

United States District Court, S.D. New York.

June 27, 2014



JESSE M. FURMAN, District Judge.

Plaintiff Polina Gertskis, proceeding pro se, brings this action against various New York City agencies and employees, alleging violations of an even greater number of statutes.[1] This is not Plaintiff's first case in this Court. As discussed below, she has brought two prior cases addressing many of the same issues against many of the same Defendants. Moreover, in those cases and this one, she has brought a slew of frivolous motions and filed demonstrably improper appeals. Defendants now move to dismiss this suit pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, primarily on the ground that Plaintiff is precluded from relitigating her claims yet again. Citing Plaintiff's history of frivolous litigation, Defendants also ask the Court to enjoin Plaintiff from bringing additional lawsuits against them without leave of Court. For the reasons that follow, Defendants' motion to dismiss is GRANTED. Additionally, Plaintiff is barred from filing certain future actions without leave of the Court.


In reviewing a motion to dismiss pursuant to Rule 12(b)(1) or Rule 12(b)(6), the Court must accept the factual allegations set forth in the complaint as true and draw all reasonable inferences in favor of the plaintiff. See, e.g., Holmes v. Grubman, 568 F.3d 329, 335 (2d Cir. 2009) (Rule 12(b)(6)); Raila v. United States, 355 F.3d 118, 119 (2d Cir. 2004) (Rule 12(b)(1)). The Court may also consider documents of which it may take judicial notice, including pleadings, opinions, and other court filings in related lawsuits. See Anderson v. Rochester-Genesee Reg'l Transp. Auth., 337 F.3d 201, 205 n.4 (2d Cir. 2003) (taking judicial notice of a related district court decision); see also Shuttlesworth v. City of Birmingham, Ala., 394 U.S. 147, 157 (1969) ("[W]e may properly take judicial notice of the record in [a prior] litigation between the same parties who are now before us."). As the present case is not the first round of litigation between Plaintiff and Defendants, the following facts are drawn from the Second Amended Complaint, as well as judicial opinions and other filings from related lawsuits.

A. Litigation History

Much of Plaintiff's litigation history is detailed in Gertskis v. U.S. Equal Emp't Opportunity Comm'n, No. 11-CV-5830 (JMF), 2013 WL 1148924, at *2-4 (S.D.N.Y. Mar. 20, 2013) ( "Gertskis II" ), familiarity with which is assumed. Briefly summarized, Plaintiff was employed as an Assistant Chemist by the New York City Department of Health and Mental Hygiene (the "DOHMH") starting at some point in the early 1990s. See Gertskis II, 2013 WL 1148924, at *2. Plaintiff requested and was granted a leave of absence in 2006, and, in March 2007, she brought a lawsuit against the DOHMH and other defendants, alleging harassment and various forms of employment discrimination. See id. By opinion dated March 26, 2009, the Honorable Thomas P. Griesa granted the defendants' motions for summary judgment and terminated the case. See Gertskis v. N.Y.C. Dep't of Health & Mental Hygiene, No. 07-CV-2235 (TPG), 2009 WL 812263 (S.D.N.Y. Mar. 26, 2009) ( "Gertskis I" ).

In 2010, after Plaintiff had been absent without leave for almost three years, the DOHMH took steps to terminate her. See Gertskis II, 2013 WL 1148924, at *3. Following a hearing conducted by the New York City Office of Administrative Trials and Hearings ("OATH"), pursuant to Section 75 of the Civil Service Law, Administrative Law Judge ("AU") Joan Salzman found that Plaintiff had been absent without leave from her job for over three years and that this misconduct justified termination. ( See 11-CV-5830, Docket No. 40, Ex. 2, at 15-16).

Thereafter, Plaintiff filed administrative charges of discrimination with the United States Equal Employment Commission ("EEOC"), pursuant to which she received Notice of Right to Sue letters. See Gertskis II, 2013 WL 1148924, at *3. On August 19, 2011, Plaintiff filed a second federal lawsuit. In that suit - Gertskis II - Plaintiff asserted a "veritable potpourri" of claims against defendants from the New York City government, the federal government, and her former unions. Id., at *1. Plaintiff also moved to supplement her pleadings on January 22, 2013, alleging discrimination for the DOHMH's failure to re-hire her for various jobs to which she had applied after filing her initial complaint. ( See 11-CV-5830, Docket No. 93 ΒΆΒΆ 15-24). On March 20, 2013, the Court dismissed the case, concluding that many of the claims were barred by res judicata by virtue of Judge Griesa's prior opinion in Gertskis I. See Gertskis II, 2013 WL 1148924 at *6-7. The Court also denied Plaintiff's motion to supplement on the ground that the proposed amendments would be futile. See id. at *16-17.

B. Procedural History

On April 26, 2014, Plaintiff filed a notice of appeal from this Court's decision in Gertskis II (11-CV-5830, Docket No. 107), which she has since amended five times (11-CV-5830, Docket Nos. 116, 125, 126, 135, 139). Notwithstanding that appeal, which is still pending, she has also continued to file numerous applications in this Court for reconsideration or amendment of the judgment in Gertskis II (11-CV-5830 Docket Nos. 109, 114, 120, 136), which the Court has repeatedly denied, frequently reminding Plaintiff that because Gertskis II is on appeal, any relief must be sought from the Court of Appeals, not this Court, and that further frivolous applications may result in sanctions (11-CV-5830, Docket Nos. 111, 115, 122, 138). In addition, she brought the instant suit, which she commenced with the filing of the initial Complaint on March 26, 2013 - only six days after the Court's ruling in Gertskis II (and even before Plaintiff filed her initial notice of appeal). (Docket No. 1). She filed an Amended Complaint on July 19, 2013, naming as Defendants the DOHMH; Rose Tessler, an employee of DOHMH; Thomas Farley, the former commissioner of DOHMH; the New York City Department of Environmental Protection (the "DEP"); Carter Strickland, the former commissioner of the DEP; and ALJ Salzman (collectively, the "City Defendants"). (Docket No. 4).

On September 17, 2013, Defendants filed the instant motion to dismiss. (Docket No. 24). The following day, the Court ordered Plaintiff to file any amended complaint by October 18, 2013, and noted that Plaintiff would not be given any further opportunities to amend the complaint to address issues raised by the motion to dismiss. (Docket No. 27). On October 18, 2013, Plaintiff filed the Second Amended Complaint (the "SAC") - the operative complaint - in which she named eight new Defendants, including the United States, the EEOC, Kevin Berry, John B. Douglass, Stephanie D. Garner, the United States Department of Justice, and Karen L. Ferguson (the "Federal Defendants"), as well as the City of New York. (Docket No. 29). Although the Court had not granted Plaintiff leave to add these additional defendants at the time of the amendment, it granted her such leave nunc pro tunc and instructed her to serve the new Defendants with the summons and SAC within 120 days. (Docket No. 34).

Before Plaintiff had served the newly named Defendants, however, she filed a letter indicating that she was voluntarily dismissing her claims against the Federal Defendants. (Docket No. 49). Accordingly, the Court terminated the Federal Defendants. (Docket No. 50). One week earlier, on November 25, 2013 the City Defendants indicated that they would rely on their previously filed motion to dismiss in response to the SAC. (Docket No. 47). On December 23, 2013, Plaintiff filed an affidavit "in support of default judgment against City of New York and in opposition to Defendants' motion to dismiss." (Docket No. 58). The Court initially treated this document as Plaintiff's opposition to the motion to dismiss, but after Plaintiff filed a letter indicating that the affidavit pertained only to one Defendant, the Court granted her another opportunity to oppose the motion to dismiss. (Docket Nos. 60-62). Plaintiff failed to submit any additional opposition papers by the deadline, however, so the Court now treats her December 23, 2013 affidavit as her opposition to the motion to dismiss.


A. Motion to ...

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