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Bey v. City of New York

United States District Court, S.D. New York

January 28, 2015

Jawan Akil Bey, Plaintiff,
City of New York, et al., Defendants.


ALISON J. NATHAN, District Judge.

Before the Court is the Defendant City of New York's[1]motion to dismiss Plaintiff Jawan Akil Bey's Amended Complaint, Dkt. No. 24, and for a filing injunction enjoining Plaintiff from bringing any further actions challenging his December 1998 termination without first obtaining leave of Court. Dkt. No. 17. For the reasons stated herein, the City's motion to dismiss is converted into a motion for summary judgment and is GRANTED, but the City's motion for a filing injunction is DENIED at this time. However, Plaintiff is forewarned that any further filings relating to his 1998 termination would be frivolous and may result in sanctions, including, but not limited to, a filing injunction.


"Dismissal under Fed.R.Civ.P. 12(b)(6) is appropriate when a defendant raises claim preclusion... as an affirmative defense and it is clear from the face of the complaint, and matters of which the court may take judicial notice, that the plaintiffs claims are barred as a matter of law." Conopco, Inc. v. Roll Int'l, 231 F.3d 82, 86 (2d Cir. 2000) (citing Day v. Moscow, 955 F.2d 807, 811 (2d Cir. 1992); United States v. EastportS.S. Corp., 255 F.2d 795, 802 (2d Cir. 1958)). "In determining whether plaintiffs' claims [are] barred by resjudicata, the district court [may] properly consider[] documents expressly referenced in the amended complaint and materials in the public record that are subject to judicial notice." Kiryas Joel Alliance v. Village of Kiryas Joel, 495 F.Appx. 183, 187 n.2 (2d Cir. 2012) (citing Blue Tree Hotels Inv. (Can.), Ltd. v. Starwood Hotels & Resorts Worldwide, Inc., 369 F.3d 212, 217 (2d Cir. 2004) (noting that courts "may also look to public records including complaints filed in state court, in deciding a motion to dismiss")).[2]

But if a district court considers matters outside the pleadings, converting a motion to dismiss to one for summary judgment is proper so long as the opposing party is given proper notice of the conversion. McCoy v. Goard, 255 F.Supp.2d 233, 251 (S.D.N.Y. 2003) (Chin, J.) (citing Villante v. Dep't of Corr. of City of New York, 786 F.2d 516, 521 (2d Cir. 1986)); see also Fed.R.Civ.P. 12(d). Here, both Plaintiff and the City submitted and referenced documents outside of the pleadings. Moreover, pursuant to Local Rule 12.1, the City provided Plaintiff with notice, Dkt. No. 20, that the Court might treat the City's motion to dismiss pursuant to Rule 12(b)(6) as a motion for summary judgment. See, e.g., Hernandez v. Coffey, 582 F.3d 303, 308 n.2 (2d Cir. 2009) (citing cases finding that a Local Rule 12.l Notice provides sufficient notice to pro se parties). Therefore, the Court concludes that the appropriate course of action here is to convert Defendant's motion to dismiss to one for summary judgment.

Summary judgment shall be granted if there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). A genuine dispute as to any material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). On a motion for summary judgment, a court views all evidence in the light most favorable to the non-movant, Overton v. N.Y. State Div. of Military & Naval Affairs, 373 F.3d 83, 89 (2d Cir. 2004), and "resolve[s] all ambiguities and draw[s] all permissible factual inferences in favor of the party against whom summary judgment is sought, " Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 83 (2d Cir. 2004).


Plaintiff, a self-described Moorish American, is a former employee of the New York City Department of Correction ("DOC") who was fired by the DOC in or about December 18, 1998. He has brought at least four other separate proceedings or actions relating to his termination and the events leading up to his termination. See Jawan Akil Bey v. City of New York, et al., No. 09 Civ. 7566 (LMM) (S.D.N.Y.); Jawan Akil Bey v. City of New York, et al., No. 98 Civ. 1353 (LAK) (S.D.N.Y.); Agnes Bey, et al. v. City of New York, et al., No. 98 Civ. 5155 (JFK) (S.D.N.Y.); Jawan Akil Bey v. City of New York, Index No. 102646/2001 (Sup.Ct., New York Cnty.).

Plaintiff alleges that he commenced the present action after learning about newly discovered evidence in February 2013 that was revealed in the course of two actions-to which he was not a party-presenting similar factual circumstances concerning other Moorish Americans terminated by the City: Oba Hassan Wat Bey, et al. v. City of New York, et al., No. 99 Civ. 3873 (AJN) (RLE) (S.D.N.Y.) and Alberto Rivera Bey v. City of New York, et al., No. 01 Civ. 9406 (AJN) (RLE) (S.D.N.Y.). Am. Compl. ¶¶ 2, 21. Specifically, Plaintiff points to the trial testimony of Terrence J. Skinner regarding certain actions of former city officials Rudolph Giuliani, Bernard Kerik, William Fraser, and Michael Caruso relating to the termination of Moorish Americans. Am. Compl. ¶¶ 21, 25. Plaintiff argues that this newly discovered evidence entitles him to relief from his prior judgments or orders pursuant to Federal Rule of Civil Procedure 60.


Plaintiff is not the first litigant who has attempted to seize on Skinner's trial testimony to seek relief from a prior judgment relating to his termination. See Yashua Amen Shekhem El Bey v. City of New York, No. 13-CV-8927 (AJN), 2014 U.S. Dist. LEXIS 158531 (S.D.N.Y. Oct. 31, 2014). As with the related action involving Yashua Amen Shekhem El Bey, the Court concludes that Plaintiffs claims are barred by the doctrine of res judicata and his motion for relief from a prior judgment under Rule 60 is untimely.

A. Plaintiff's Claims Are Barred by the Doctrine of Res Judicata

"To prove the affirmative defense [of res judicata or claim preclusion] a party must show that 1) the previous action involved an adjudication on the merits; 2) the previous action involved the plaintiffs or those in privity with them; and 3) the claims asserted in the subsequent action were, or could have been, raised in the prior action." Monahan v. N.Y.C. Dep't of Corr., 214 F.3d 275, 285 (2d Cir. 2000) (citing Allen v. McCurry, 449 U.S. 90, 94 (1980); Burgos v. Hopkins, 14 F.3d 787, 789 (2d Cir. 1994); Chase Manhattan Bank, NA. v. Celotex Corp., 56 F.3d 343, 345-46 (2d Cir. 1995)). "As the sufficiency of a complaint to state a claim on which relief may be granted is a question of law, the dismissal for failure to state a claim is a final judgment on the merits and thus has res judicata effects." Berrios v. N. Y C. Haus. Auth., 564 F.3d 130, 134 (2d Cir. 2009) (internal citations and quotation marks omitted). Similarly, a claim is precluded under New York law "if both causes of action are grounded on the same gravamen or are part of the same factual grouping, ' even if the later claim is brought under a different theory of recovery." Kirkland v. City of Peekskill, 828 F.2d 104, 110 (2d Cir. 1987) (quoting Smith v. Russell Sage College, 429 N.E.2d 746, 749 (N.Y. 1981)). And "Congress has specifically required all federal courts to give preclusive effect to state-court judgments whenever the courts of the State from which the judgments emerged would do so." Allen, 449 U.S. at 96 (citing 28 U.S.C. § 1738).

In 1998, Plaintiff, along with several others, brought suit against the City of New York, Giuliani, Caruso, Kerik, and others asserting a variety of claims relating to his suspension, disciplinary hearing, and termination. Bey v. City of New York, No. 98 Civ. 1353 (LAK), 1998 U.S. Dist. LEXIS 23242 (S.D.N.Y. Apr. 30, 1998). Judge Kaplan granted the defendants' motion to dismiss except with respect to claims that the Office of Administrative Trials and Hearings ("OATH") proceedings deprived Plaintiff "of due process of law because they are subject to inappropriate influence and their impartiality is compromised by the City's alleged financial interest in the outcomes...." Id. at *8-9. The City indicated in its brief that the dismissal was affirmed by the Second Circuit in Bey v. City of New York, No. 98-7686, 1998 U.S.App. LEXIS 31700 (2d Cir. Dec. 18, 1998). But this appeal appears to involve a ...

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