United States District Court, S.D. New York
MEMORANDUM OPINION AND ORDER
G. Koeltl, United States District Judge
defendant, Nelson Igie, has moved to dismiss the Second
Amended Complaint filed by the pro se plaintiff,
Robert Cantrell, for failure to state a claim pursuant to
Federal Rule of Civil Procedure 12(b)(6). In a Memorandum
Opinion and Order dated December 8, 2016 (Cantrell
I), this Court dismissed the plaintiff's Amended
Complaint. See Cantrell v. Igie, No. 16-CV-00903
(JGK), 2016 WL 7168220, at *8 (S.D.N.Y. Dec. 8, 2016). The
applicable standard of review for a motion to dismiss
pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure is set forth in Cantrell I. See
id. at *l-2.
Cantrell I, this Court granted the motion for
summary judgment filed by the Union Defendants, who were
terminated from this action. Id. at *8. This Court
also granted the motion to dismiss pursuant to Federal Rule
of Civil Procedure 12(b)(6) filed by defendant Igie, but gave
the plaintiff the opportunity to replead some of his claims
against the defendant. Id.
allegations in the Second Amended Complaint are accepted as
true and construed liberally for the purposes of this motion
to dismiss. The allegations in the Second Amended Complaint
are substantially similar to those in the Amended Complaint,
which are described in greater detail in Cantrell I.
See id. at *3-4. Familiarity with Cantrell
I is presumed.
Second Amended Complaint does not cure the flaws in the
plaintiff's claims relate to his allegedly unjustified
suspension from work, which the plaintiff's union refused
to challenge at an arbitration. SAC at 3, 5. The defendant, who
is the plaintiff's work supervisor, allegedly
photographed the plaintiff in a way to make it look like the
plaintiff was asleep on the job. SAC at 5. The gist of the
allegations is that the defendant is part of a conspiracy to
frame the plaintiff. SAC at 5.
plaintiff asserts claims for negligence and entrapment, but
those claims were already dismissed with prejudice in
Cantrell I. See Cantrell, 2016 WL 7168220,
at *7-8. To the extent that any of the claims in the Second
Amended Complaint are directed against the Union Defendants,
those claims were also dismissed with prejudice. Id.
Cantrell I, this Court dismissed the plaintiff s
claim for "civil rights" --- which the Court also
"construed as a claim for retaliation or wrongful
termination" --- because the claim was "too
conclusory and nonspecific to state a claim for relief"
and moreover because it was "not possible to discern the
source of the plaintiff's action for a violation of
'civil rights.'" Id. at *7. This Court
advised that, "If the plaintiff chooses to reassert his
claim for a Violation of civil rights, ' he should
include in his amended complaint the statutory source for his
claim, and detailed factual allegations to support that
claim, as well as any other claim. The plaintiff must also
include in the complaint a sufficient basis for the court to
have subject matter jurisdiction over any of his
Second Amended Complaint reiterates that the basis for
jurisdiction in this case is simply "civil rights,
" SAC at 2, which is insufficient to establish subject
matter jurisdiction over the action. Moreover, the Second
Amended Complaint includes no allegations that could support
a claim under Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq.; 42 U.S.C. § 1981; or any
other source of state or federal law related to civil rights.
Cantrell I, this Court dismissed the claim for
breach of contract because the plaintiff had failed to
"identify any contract that [the defendant]
breached." Cantrell, 2016 WL 7168220, at *7.
The Court advised that if the plaintiff wished to replead the
claim, he "must allege the contract that [the defendant]
breached, and how [the defendant] breached that
contract." Id. at *8.
Second Amended Complaint realleges the breach of contract
claim, claiming that the defendant's actions
"neutralized the 'FIRE AT WILL' clause in [the
plaintiff's] Security Officer's Handbook." SAC
at 5. However, there is no allegation (nor is it plausible}
that the Security Officer's Handbook constituted a
contract between the plaintiff and defendant Igie. Moreover,
there is no plausible inference that the defendant's
actions breached the complained-of clause.
plaintiff asserts a claim for civil conspiracy, but New York
law does not recognize an independent tort for civil
conspiracy. See Gym Door Repairs, Inc. v. Young Equip.
Sales, Inc., 15-cv-4244 (JGK), 2016 WL 4747281, at *26
(S.D.N.Y. 2016). Because the plaintiff has not established an
underlying substantive claim, the conspiracy claim fails.
in the absence of an allegation of a federal statute or an
allegation of diversity of citizenship, the plaintiff has
failed to plead a basis for subject matter jurisdiction in
this federal court.
plaintiff has not asked for leave to replead his claims. In
any event, it is clear that ...