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Sunnen v. New York State Department of Health

United States District Court, S.D. New York

July 27, 2018


          Gerard Sunnen Pro se Plaintiff

          Maryam J. Dorcheh Office of the New York State Attorney General Counsel for Defendants



         Pro se Plaintiff Gerard Sunnen, M.D., brings this action alleging claims against Defendants New York State Department of Health and Dr. Howard A. Zucker, Commissioner of New York State Department of Health, for employment discrimination and retaliation, in violation of Title VII of the Civil Rights Act of 1964, the New York State Human Rights Law (the “NYSHRL”), N.Y. Exec. Law §§ 296, et seq., and the New York City Human Rights Law (the “NYCHRL”), N.Y. City Admin. Code §§ 8-107, et seq.; for failure to afford him due process, in violation of 42 U.S.C. § 1983; and for libel, in violation of New York State law.

         Before me is Defendants' motion to dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6), (Doc. 13), Defendants' motion for entry of a filing injunction against Plaintiff, (id), and Plaintiffs motion for leave to amend the Complaint, (Doc. 24). Because I lack subject matter jurisdiction over Plaintiffs claims, the claims are outside the statute of limitations, and they are barred by res judicata, Defendants' motion to dismiss is GRANTED, Plaintiffs motion for leave to amend the Complaint is DENIED as futile, and Plaintiff is ordered to show cause why a filing injunction should not be entered against him.

         I. Background [1]

         Plaintiff is a medical doctor of French national origin who began working as an intern in medicine and surgery at Bellevue Hospital Center in 1967. (Compl. 18, 20.)[2] He began a three-year residency in psychiatry and neurology at Bellevue in 1968. (Id. at 20-21). After completing his residency, Plaintiff entered the U.S. Air Force and served until 1973, and then returned to Bellevue and worked in various capacities until 1996. (Id. at 21.) During his employment at Bellevue, Plaintiffs “performance reports were stellar.” (Id.)

         In 1996, Defendant New York State Department of Health (“DOH”) brought proceedings against Plaintiff concerning his professional practice (the “1996 Proceedings”). (Id.) A hearing was held, at which DOH presented “bogus” allegations against Plaintiff, who had no opportunity to challenge those allegations because he “was denied any and all witnesses for [his] defense.” (Id.) Plaintiff claims that DOH “coached their witnesses to lie, ” and that one of his previous bosses at Bellevue who held anti-French views had some role in bringing the proceeding. (Id.) Following the proceeding, Plaintiff's medical license was revoked, and he was forced to resign from Bellevue. (Id.)

         Plaintiff claims that DOH “in some form or manner was [his] employer from 1968 to 1996 (except for two years in the [Air Force]).” (Id.) In addition, DOH bestowed and revoked Plaintiff's medical license. (Id. at 21-22.) After the revocation of his medical license and forced resignation, Plaintiff “was also prevented from being hired anywhere and everywhere.” (Id.)

         At some point after the 1996 Proceedings, DOH published certain facts regarding the proceeding on its official website. (Id. at 22.) The facts “derive from the allegations of two plaintiffs that were impossible to counter because all defense witnesses were summarily denied.” (Id.) Plaintiff claims that the publication contains “extensive falsehoods about things [he] never did nor said.” (Id.) The public can presently access the website. (Id.)

         Plaintiff claims that he filed a charge with the U.S. Equal Employment Opportunity Commission (“EEOC”) on February 23, 2003, (id. at 14), but the only charge attached to his Complaint is dated October 27, 2016, (id. at 20). On November 22, 2016, the EEOC dismissed Plaintiff's charge on the basis that it did not have jurisdiction because the charge was untimely filed, and it issued a notice of right to sue. (Id. at 9.)

         Plaintiff has brought at least three other federal actions in this Court and multiple actions in New York state courts alleging substantially the same claims he does here against DOH and other defendants based on substantially the same facts alleged here. See, e.g., Sunnen v. U.S. Dep't of Health & Human Servs., No. 13 Civ. 1242(PKC), 2013 WL 1290919 (S.D.N.Y. Mar. 28, 2013); Sunnen v. New York State Dep't of Health, No. 12 Civ. 3417(CM), 2012 WL 6645942 (S.D.N.Y. Dec. 21, 2012), aff'd in part, vacated in part, 544 Fed.Appx. 15 (2d Cir. 2013); Sunnen v. New York, No. 10 Civ. 372(PKC), 2010 WL 3912728 (S.D.N.Y. Sept. 10, 2010); Sunnen v. New York State Dep't of Health, 789 N.Y.S.2d 427 (1st Dep't 2005); Sunnen v. Admin. Review Bd. for Prof l Med. Conduct, 666 N.Y.S.2d 239 (3d Dep't 1997).[3] Each of Plaintiff s prior actions was dismissed.

         H. Procedural History

         Plaintiff filed this action on February 10, 2017. (Doc. 1.) Defendants filed their motion to dismiss and memorandum of law in support on April 6, 2017. (Docs. 13-14.) Plaintiff filed his opposition by letter dated April 19, 2017. (Doc. 19.) On May 3, 2017, Defendants filed their reply memorandum. (Doc. 21.) On March 12, 2018, Plaintiff filed a letter requesting leave to amend his Complaint to add the New York State Department of Education as a defendant in this action. (Doc. 24.) Plaintiff opposed that request on March 16, 2018. (Doc. 25.)

         III. Legal Standards

         A. Rule 12(b)(1)

         “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); see also Fed R. Civ. P. 12(b)(1). If challenged, a plaintiff is required to show that subject matter jurisdiction exists by a preponderance of the evidence, Makarova, 201 F.3d at 113, and in analyzing such a challenge “the district court must take all uncontroverted facts in the complaint . . . as true, and draw reasonable inferences in favor of the party asserting jurisdiction, ” Tandon v. Captain's Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014). However, “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 Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (quoting APWU v. Potter, 343 F.3d 619, 623 (2d Cir. 2003)). Furthermore, in resolving a motion to dismiss for lack of ...

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