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Thomas v. Condon

United States District Court, S.D. New York

July 10, 2015



JESSE M. FURMAN, District Judge.

Plaintiff Michael P. Thomas, a former New York City public school teacher who is proceeding pro se, brings this lawsuit against Defendant Richard J. Condon, Special Commissioner of Investigations for the New York City School District, in his official capacity. Plaintiff alleges that Condon violated his due process rights by failing to adequately investigate his claim that he was entitled to protection as a whistleblower under New York law. Pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, Defendant moves to dismiss the Complaint in its entirety for lack of subject-matter jurisdiction and failure to state a claim. For the reasons discussed below, Defendant's motion is GRANTED.


As noted, Defendant moves to dismiss pursuant to both Rules 12(b)(1) and 12(b)(6). Generally, in considering a motion pursuant to Rule 12(b)(6), courts are limited to the facts alleged in the complaint and are required to accept those facts as true. See, e.g., LaFaro v. N.Y. Cardiothoracic Grp., PLLC, 570 F.3d 471, 475 (2d Cir. 2009). A court may, however, consider documents attached to the complaint, statements or documents incorporated into the complaint by reference, matters of which judicial notice may be taken, public records, and documents that the plaintiff either possessed or knew about, and relied upon, in bringing the suit. See, e.g., Kleinman v. Elan Corp., 706 F.3d 145, 152 (2d Cir. 2013); Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (applying rule to district courts). In addition, because a pro se plaintiff's allegations must be construed liberally, it is appropriate for a court to consider factual allegations made in a pro se plaintiff's opposition memorandum, as long as the allegations are consistent with the complaint. See, e.g., Braxton v. Nichols, No. 08-CV-8568 (PGG), 2010 WL 1010001, at *1 (S.D.N.Y. Mar. 18, 2010); cf. Gill v. Mooney, 824 F.2d 192, 195 (2d Cir. 1987) (considering a pro se plaintiff's affidavit in opposition to a motion to dismiss in addition to those in the complaint). Accordingly, the following facts are taken from the Complaint, exhibits attached thereto, Thomas's opposition papers (to the extent they are consistent with the Complaint), and documents of which the Court may take judicial notice.

Plaintiff worked as a mathematics teacher at the Manhattan Center for Science and Mathematics ("MCSM") from 1989 through his retirement in July 2012. (Compl. ¶ 6). In June 2006, he received a Newtown Master Teacher Fellowship (the "Fellowship") from Math for America ("MfA"). (Compl., Ex. A at 1.). As a fellow, Plaintiff was required to, among other things, remain a New York City public school teacher from September 2006 through June 2010; in exchange, he received a stipend of $12, 500 a year. ( Id. ). Plaintiff's fellowship was suspended, however, in May 2008, after Plaintiff was investigated for allegations of misconduct on six occasions and sent to a temporary reassignment center, commonly known as a "rubber room." (Compl. ¶¶ 14-15; id., Ex. B). Pursuant to the terms of the suspension, Plaintiff's stipend was cut off, and he was required to check in with MfA once per month to report whether he had been returned to the classroom. ( Id., Ex. B). Rather than accept the suspension, however, Plaintiff asked either to be allowed to complete the fellowship or to have it terminated. ( Id., Ex. C). Pursuant to that request, MfA terminated the fellowship in July 2008, effective as of May 31, 2008. ( Id., Ex. D). Plaintiff's fellowship was not reinstated when, seventeen months after being reassigned, Plaintiff was allowed to return to the classroom. ( Id. ¶ 20).

Plaintiff believed that the misconduct allegations against him had been fabricated by MCSM's administration to retaliate against him after he reported both the school's improper use of funds and scoring irregularities on the New York State Regents examination. ( Id. ¶¶ 11-14). Consequently, in September 2008, he requested protection under the New York City whistleblower protection law, New York City Admin. Code § 12-113 (the "Whistleblower Law"), which provides that an "adverse personnel action" may not be taken against an employee "in retaliation for his or her making a report of information concerning conduct which he or she knows or reasonably believes to present a substantial and specific risk of harm to the health, safety or educational welfare of a child." N.Y.C. Admin. Code § 12-113(b)(5). (Compl. ¶¶ 21-22). His request was referred to Defendant, the Special Commissioner of Investigations, who denied his whistleblower application in July 2009. ( Id. ¶¶ 21, 24). Plaintiff then initiated a proceeding in state court pursuant to Article 78 of the Civil Practice Law and Rules seeking to vacate Defendant's determination. ( Id. ¶ 24). In July 2010, the parties entered into a settlement agreement, which vacated Defendant's original determination and provided that Defendant would re-investigate Plaintiff's claims. ( Id. ).

Plaintiff filed a new whistleblower application in August 2010. ( Id. ¶ 25). His claims were denied without a hearing. ( Id. ¶ 26). Once again, Plaintiff brought an action pursuant to Article 78 (the "Article 78 Proceeding") seeking to vacate Defendant's determination. ( Id. ¶ 27). Plaintiff alleged that Defendant's denial of his application was arbitrary and capricious and infected by legal error. (Decl. Assistant Corp. Counsel Tanya N. Blocker Supp. Def.'s Mot. To Dismiss Verified Compl. (Docket No. 10) ("Blocker Decl."), Ex. 1 ("Verified Pet.")). The New York Supreme Court for New York County disagreed, holding that Plaintiff was not entitled to whistleblower protection because his complaints had not been directed to the correct officials, the school principal had not falsely testified at the grievance hearing, and the filing of a misconduct allegation did not qualify as an "adverse personnel action" under the statute. (Blocker Decl., Ex. 2 ("Supreme Court Op.") at 4-7). Plaintiff appealed the trial court's decision, but that appeal was rejected on May 29, 2014, see In re Thomas v. Condon, 986 N.Y.S.2d 332 (App. Div. 1st Dept. 2014) (Mem.), and the Court of Appeals denied leave to appeal on September 11, 2014 ( Compl. ¶ 30).

Plaintiff filed this action on October 27, 2014, alleging that Defendant's failure to adequately investigate his whistleblower claims deprived him of his right to procedural due process under the Fourteenth Amendment to the U.S. Constitution. (Compl. ¶¶ 35-42). On January 28, 2015, Defendant filed a motion to dismiss, arguing, among other things, that the Court lacks subject-matter jurisdiction over Plaintiff's claims and that Plaintiff fails to state a plausible claim. (Docket Nos. 9, 11). The Court will address each argument in turn.


A Rule 12(b)(1) motion challenges the court's subject matter jurisdiction to hear the case. "A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). In reviewing a motion to dismiss under Rule 12(b)(1), a court "must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of plaintiff, but jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it." Morrison v. Nat'l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (internal quotation marks and citations omitted). Moreover, a court "may consider affidavits and other materials beyond the pleadings to resolve the jurisdictional issue, but [the Court] may not rely on conclusory or hearsay statements contained in the affidavits." J.S. ex rel. N.S. v. Attica Cent. Schs., 386 F.3d 107, 110 (2d Cir. 2004). "The plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of the evidence." Aurecchione v. Schoolman Transp. Sys. Inc., 426 F.3d 635, 638 (2d Cir. 2005).

By contrast, a Rule 12(b)(6) motion tests the legal sufficiency of a complaint and requires a court to determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a plausible claim for relief. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). When ruling on a Rule 12(b)(6) motion, a 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). To survive such a motion, however, the plaintiff must plead sufficient facts "to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). Where, as here, a plaintiff proceeds pro se, the complaint "must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Nevertheless, a pro se litigant must still state a plausible claim for relief. See, e.g., Walker v. Schult, 717 F.3d 119, 124 (2d Cir. 2013). That is, "the Court's duty to liberally construe a plaintiff's complaint is not the equivalent of a duty to re-write it." Baines v. City of N.Y., No. 10-CV-9545 (JMF), 2015 WL 3555758, at *4 (S.D.N.Y. June 8, 2015) (internal quotation marks omitted)).


A. Subject-Matter Jurisdiction

As a threshold matter, the Court must confirm that it has subject-matter jurisdiction. See, e.g., Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 93 (1988). Defendant argues that the Court does not by virtue of the Rooker-Feldman doctrine, which stands for "the clear principle that federal district courts lack jurisdiction over suits that are, in substance, appeals from state-court judgments." Hoblock v. Albany Cnty. Bd. of Elections, 422 F.3d 77, 84 (2d Cir. 2005). (Mem. Law Supp. Def.'s Mot. To Dismiss Pl.'s Compl. (Docket No. 11) ("Def.'s Mem.") 5-8). More specifically, the Rooker-Feldman doctrine deprives federal district courts of subject-matter jurisdiction when four conditions are met: (1) the federal plaintiff lost in state court; (2) the plaintiff complains of injuries caused by the state-court judgment; (3) the plaintiff's complaint "invite[s] district court review and rejection of that judgment"; and (4) the state judgment was rendered before the filing of the federal complaint. Hoblock, 422 F.3d at 85 (internal quotation marks omitted). The first and fourth requirements are "procedural"; the ...

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