United States District Court, E.D. New York
MEMORANDUM AND ORDER
ROSLYNN R. MAUSKOPF, District Judge.
Pro se plaintiff Edwin Toro ("Edwin" or "Toro") commenced this action against the City of New York ("City"), the Administration for Children's Services ("ACS"), former Mayor Michael Bloomberg, former ACS Commissioner John Mattingly, and present ACS Commissioner Ronald E. Richter ("the city defendants"), as well as against Teamsters Local 237 and its president, Gregory Floyd ("the union defendants") (collectively, "defendants"), raising a host of claims sounding in civil rights violations and tort. Defendants' unopposed motions for summary judgment (Doc. Nos. 57, 66) are currently before the Court. For the reasons set forth below, defendants' motions are granted and the complaint is dismissed.
BACKGROUND This action stems from an investigation triggered by a routine traffic stop in Weehawken, New Jersey. On the night of February 4, 2010, the police pulled over plaintiff Edwin Toro's nephew, Eliot Ocasio ("Ocasio"), for speeding. Although Ocasio had previously served as an ACS police officer, he nonetheless identified himself as an active ACS officer, presenting an ACS police badge along with a document appearing to be a copy of an ACS identification card. Ocasio's brother, Brian Toro ("Brian"), who was actually an active ACS police officer at the time, soon appeared on the scene. Less than an hour later, Edwin Toro, who was also an active ACS police officer, phoned his supervisor to state that, in fact, he (Edwin) was the one who had been pulled over in New Jersey and had presented his ACS badge and identification, and that Ocasio - his nephew - was merely a passenger in the car. For his part, Brian called his own supervisor and gave a differing account of what had happened.
New York law requires that ACS officers reside in the state; Edwin and Brian purported to live together in an apartment unit at 153 Marcus Garvey Boulevard in Brooklyn, which was in a residential building owned by the New York City Housing Authority ("NYCHA"). In light of how quickly Brian had responded to the traffic stop in New Jersey, the director of ACS Employment Services, Brandon Stradford ("Stradford"), began to investigate whether Edwin and Brian actually resided in Brooklyn. To that end, Randy Slovin ("Slovin"), an ACS attorney in the Employment Law Unit, requested information from the NYCHA regarding the purported residence of Edwin and Brian. The manager of the apartment building notified Slovin that Edwin's mother, Miriam Toro, was the sole resident of the apartment unit in question; neither Edwin nor Brian appeared to live there. The Inspector General's Office also performed a "housing canvass" and reached the same conclusion. Furthermore, Slovin submitted a request to the NYCHA Freedom of Information Law Office; based on a records search, neither Edwin nor Brian appeared to live at the address they claimed, nor were they even NYCHA program participants.
By letter dated March 28, 2012, Stradford ordered Edwin to appear at an ACS office on March 30th for a residency interview. Stradford stated that Edwin should bring copies of his apartment lease and income tax forms, and that his failure to comply would result in the termination of his employment. Edwin attended the March 30th interview (with an attorney who appeared telephonically), but failed to provide any of the requested materials. A second interview was scheduled for April 2nd, and Stradford once again advised Edwin in writing to bring the proof-of-residency materials. At the April 2nd interview, Edwin did not produce a copy of his lease and admitted that, in fact, the apartment in question was his mother's residence. On May 18, 2012, ACS terminated Edwin due to his failure to comply with its residency requirement pursuant to New York Public Officers Law § 30(1)(d).
Three months later, on August 15, 2012, plaintiff Edwin Toro filed this pro se complaint. Toro alleges that during his time at ACS, he witnessed a host of corrupt behavior and practices by ACS employees, such as ACS supervisors requiring officers to perform illegal searches and arrests, and then punishing officers who failed to comply by, for example, depriving them of overtime pay. (Comp. (Doc. No. 1) at 5, 7-8 (ECF pag.).) He further alleges that ACS officers committed "abuses" against "minority children" in their custody, as well as against the mothers of such children. (Id. at 5-7.) In his complaint, Toro claimed to have reported some of these corrupt and illegal activities to his superiors at ACS. (Id. at 7.) Additionally, Toro was deposed during this lawsuit and testified that, in 2010, he complained to the New York City Department of Investigation ("DOI") about some of this misconduct. He also claimed to have made surreptitious recordings of certain misconduct, indicated that he had paperwork memorializing his whistleblowing to ACS supervisors, and even maintained that he wrote letters to the "media" about these matters. (Toro Dep. (Doc. No. 60-2).) On November 14, 2013, Magistrate Judge Roanne L. Mann ordered Toro to turn over all of that alleged evidence to defendants. (Doc. No. 46.) Toro failed to comply with that Order and has never provided any such evidence.
The gravamen of Toro's lawsuit is that ACS, in turn, retaliated against him for disclosing such improprieties by initiating disciplinary charges against him in 2010 concerning the speeding incident with his nephew, attempting to break into his car in 2010, terminating his employment in 2012 for violating ACS's residency requirements, and withholding leave pay following his termination. (Doc. No. 1 at 8-10.) Edwin alleges a slew of claims against the city defendants sounding in the following: civil rights violations under New York State Civil Rights Law § 40-c, the New York State Constitution, and 42 U.S.C. § 1983, stemming from his supposed "false arrest" and "malicious prosecution" (addressed below), as well as relating to his termination from ACS; intentional infliction of emotional distress, abuse of process, and negligent supervision concerning his supposed false arrest and malicious prosecution; conspiracy with racial animus; and "gang stalking." Edwin also claims, in a conclusory fashion, that he was subjected to discrimination on the basis of his ethnicity. As to the union defendants, who provided legal representation to Toro during the disciplinary proceedings at issue in this case, Edwin asserts causes of action for violation of the union's fair duty of representation and fraud. (Id. at 10-22.)
As noted, Edwin was deposed as part of this lawsuit. Notwithstanding his claims of false arrest and malicious prosecution, Edwin testified at the deposition that he has never been arrested since working for ACS, nor has he ever been subject to criminal court proceedings. (Doc. No. 60-2 at 145-46.) Edwin further acknowledged that he did not file a notice of claim with respect to any of his causes of action against the city defendants. (Id. at 146-47.)
I. Standard of Review
Summary judgment is appropriate when the pleadings, depositions, interrogatories, admissions, and affidavits in the record demonstrate that there are no genuine issues of material fact in dispute and that one party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine issue of 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). In determining whether a genuine issue of material fact exists, the evidence of the non-movant is to be believed and the Court must draw all "justifiable" or "reasonable" inferences in favor of the non-moving party. Id. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)). Once the moving party has asserted facts showing that the non-movant's claims cannot be sustained, the opposing party must "set out specific facts showing a genuine issue for trial, " and cannot "rely merely on allegations or denials" contained in the pleadings. Fed.R.Civ.P. 56(e); see Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009).
In this case, Toro, who is proceeding pro se, did not respond in any fashion to defendants' motions for summary judgment. "Special solicitude" should be afforded pro se litigants, like Toro, when confronted with motions for summary judgment. See Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988). Nevertheless, a pro se plaintiff is not otherwise relieved from the usual requirements of summary judgment. It is thus settled law that a pro se plaintiff, just like a represented one, may not rely solely on his complaint to defeat a summary judgment motion. See Champion v. Artuz, 76 F.3d 483, 485 (2d Cir. 1996). If a pro se plaintiff fails to oppose a motion for summary judgment, the Court may grant the motion if: (1) the pro se plaintiff has received adequate notice that failure to file any opposition may result in dismissal of the case; and (2) the Court is satisfied that "the facts as to which there is no genuine dispute show that the moving party is entitled to a judgment as a matter of law.'" Id. at 486 (quoting Fed.R.Civ.P. 56(c)).
Here, the city and union defendants complied with Local Civil Rule 56.2 Statements, and supplied Torowith the requisite notice that failure to oppose defendants' motions could result in the grant of summary judgment against him and the dismissal of his case. In light of Toro having been accorded sufficient notice and yet having failed to respond to the defense motions, the Court accepts as true the facts set forth in those motion papers and in defendants' Rule 56.1 Statement. See LeSane v. Hall's Security Analyst, Inc., 239 F.3d 206, 210 (2d Cir. 2001). The Court thus turns to ...