Momot v. Dziarcak

• Decision Date: 22 September 2016
• Docket Number: 1:14-CV-1527 (TJM/TWD)
• Citation: 208 F.Supp.3d 450
• Parties: John MOMOT, Plaintiff, v. Mary Ellen DZIARCAK, et al., Defendants.
• Court: U.S. District Court — Northern District of New York

208 F.Supp.3d 450

John MOMOT, Plaintiff,

v.Mary Ellen DZIARCAK, et al., Defendants.

1:14-CV-1527 (TJM/TWD)

United States District Court, N.D. New York.

Signed September 22, 2016

John Momot, Watervliet, NY, pro se.

Jeffrey M. Daitz, Kim V. Mercado, Peckar, Abramson Law Firm, River Edge, NJ, for Defendants.

DECISION and ORDER

Thomas J. McAvoy, Senior United States District Judge

Plaintiff John Momot commenced this action pro se asserting claims pursuant to 42 U.S.C. § 1983. Before the Court is Defendants' motion to dismiss Plaintiff's Amended Complaint. See dkt. # 33. The Court will decide the issue on the submissions and without oral argument. For the reasons stated below, the motion will be granted.

I. BACKGROUND

This case arises out of Plaintiff's employment as a Certified Nursing Assistant ("CNA") at Defendant Daughters of Sarah Nursing Center ("DSNC") in Albany, New York. See Amended Complaint ("Amended Cmplt."), dkt. # 30, at 1. Plaintiff is a 60-year-old white male. Id. at ¶ 1. Plaintiff worked for the Nursing Center from March 8, 2011 until his termination on March 30, 2012. Id. at ¶ 3. He alleges that he lost his job due to discrimination. Id. Plaintiff contends that, though qualified for his CNA position, the Nursing Center breached workplace safety rules, maintained a hostile work environment, and failed to respond to his warnings about the work environment. Id. at ¶ 4. He alleges that he made Defendant aware of a herniainjury he suffered and was dismissed shortly thereafter. Id. at ¶ 5.

Plaintiff alleges in his Amended Complaint that he was fired soon after unsafe working conditions caused him to develop an inguinal hernia

.¹

Id. at ¶ 6. The hernia, he insists, occurred because other workers refused to help him with his job on account of his "race, national origin, culture, and age." Id. He contends that Defendants conspired to ensure that the meeting that led to his firing would cause him to be "argumentative and belligerent with them so it [would] be a good cause for my termination." Id. Though Defendants claimed that he had become belligerent, Plaintiff denies that he engaged in such behavior. Id.

Plaintiff filed his initial Complaint pursuant to 42 U.S.C. § 1983 in this Court on December 17, 2014. See dkt. # 1. Plaintiff named as defendants only Mary Ellen Dziarcak and Cynthia Wagner. Id. On August 4, 2015, the Court granted the Defendants' motion to dismiss, finding that Plaintiff had failed to allege that either of the two Defendants acted under color of state law. See dkt. # 24. The Court permitted Defendant to file an Amended Complaint. When Plaintiff did so, Defendants filed the instant motion to dismiss. The parties briefed the issues.

II. LEGAL STANDARD

Defendants move to dismiss Plaintiff's Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). See dkt. # 6. Defendants argue that Plaintiff has not stated a claim upon which relief could be granted, even if all factual allegations in the complaint were proved true. In addressing such motions, the Court must accept "all factual allegations in the complaint as true, and draw ... all reasonable inferences in the plaintiff's favor." Holmes v. Grubman , 568 F.3d 329, 335 (2d Cir. 2009). This tenet does not apply to legal conclusions. Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 678, 129 S.Ct. 1937. "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Id. (quoting Bell Atl. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ).

When assessing the sufficiency of a complaint, particular deference should be afforded to a pro se litigant. Pro se complaints merit a generous construction by a Court determining whether they state cognizable causes of action. Erickson v. Pardus , 551 U.S. 89, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007) (" ‘[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers' ")(quoting Estelle v. Gamble , 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (internal quotations omitted)). In the event of a perceived deficiency in a pro se plaintiff's complaint, a court should not dismiss without granting leave to amend at least once if there is any indication that a valid claim might be stated. Branum v. Clark , 927 F.2d 698, 704–05 (2d Cir. 1991) ; see also FED. R. CIV. P.15(a) (leave to amend "shall be freely given when justice so requires").

III. DISCUSSION

Defendants seek dismissal on various grounds, which the Court will address in turn.

A. Section 1983 Claims

Defendants first argue that any claims brought pursuant to 42 U.S.C. § 1983 against Defendants Mary Ellen Dziarcak and Cynthia Wagner must be dismissed, as the Court has already dismissed any such claims with prejudice in reference to Plaintiff's initial Complaint. Defendants are correct. In resolving the earlier motion to dismiss, the Court concluded that Plaintiff had admitted that the Defendants were not state actors and had not acted under color of state law. Since such status is an essential element of a Section 1983, the Court dismissed such claims with prejudice. See dkt. # 24 at 10-14. To the extent that Plaintiff's Amended Complaint attempts to bring Section 1983 claims against these Defendants, those claims will be dismissed.

Plaintiff's Amended Complaint adds claims against DSNC. Plaintiff alleges that DSNC employed him as a certified nursing assistant. Amended Complt. at ¶ 4. He further alleges that "special bonds and obligations" are present "between DSNC and the government as a State control in which bureaucracy is the mechanism used to discriminate [against] me and my civil rights[.]" Id. at ¶ 14. This discrimination, he insists, occurred "because I was that person who complained against the Employer DSNC and its management that was tidily protected by corrupted agencies and the Jewish representatives I believed from NYS Government, e.g. John Meyers from Unemployment Insurance Benefits, NYSDHR Judge Protano, and EEOC Dir. Kevin Berry." Id. As such, "DSNC acts on behalf of a governmental body." Id. Moreover, "NYS local government" and "agencies... acted jointly with DSNC and Defendants to cover violation in spite of signed US EEOC federal rules at work and Anti-Harassment Policy." Id. at ¶ 15. DSNC had agreed to federal workplace rules and violated them; the government then covered up such violations to protect DSNC's business. Id.

Plaintiff brings his claim under 42 U.S.C. § 1983. "To state a claim for relief in an action brought under § 1983, [plaintiff] must establish that he was deprived of a right secured by the Constitution or laws of the United States, and the alleged deprivation was committed under color of state law." Am. Mfrs. Mut. Ins. Co. v. Sullivan , 526 U.S. 40, 49–50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999). No action exists for " ‘merely private conduct, no matter how discriminatory or wrongful.’ " Id. (quoting Shel l ey v. Kr ae mer , 334 U.S. 1, 13, 68 S.Ct. 836, 92 L.Ed. 1161 (1948) ). To establish state action, Plaintiff must show that the person who caused his constitutional deprivation " ‘may fairly be said to be a state actor.’ " Grogan v. Blooming Grove Volunteer Ambulance Corps , 768 F.3d 259, 264 (2d Cir. 2014) (q uoting Cranley v. Nat'l Life Ins. Co. of Vt. , 318 F.3d 105, 111 (2d Cir. 2003) ). State action requires a showing that "the ‘allegedly unconstitutional conduct is fairly attributable to the State.’ " Id. (quoting Sullivan , 526 U.S. at 50, 119 S.Ct. 977 ). W hen a plaintiff contends that a private actor violated his rights, the plaintiff proves state action "by demonstrating that ‘there is such a close nexus between the State and the challenged action’ that seemingly private behavior ‘may be fairly treated as that of the State itself.’ " Id. (quoting Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n , 531 U.S. 288, 295, 121 S.Ct. 924, 148 L.Ed.2d 807 (2001) ).

To determine whether the behavior can be attributed to the state, the Court must "[identify] ‘the specific conduct of which the plaintiff complains, rather than the general characteristics of the entity.’ " Id. (quoting Fabrikant v. French , 691 F.3d 193, 207 (2d Cir. 2012) ). In making this determination, courts employ a number of factors, including "[t]hree main tests[.]" Fabrikant , 691 F.3d at 207. Those tests are:

(1) [when] the entity acts pursuant to the coercive power of the state or is controlled by the state (‘the compulsion test’); (2) when the state provides significant encouragement to the entity, the entity is a willful participant in joint activity with the sate, or the entity's functions are entwined with state policies (‘the joint action test’ or ‘close nexus test’); or (3) when the entity has been delegated a public function by the state (‘the public function test’).

Id . (quoting Syba l ski v. Indep. Grp. Home Living Program , 546 F.3d 255, 257 (2d Cir. 2008) ).

To make out a claim for state action under the "compulsion" test, a plaintiff must show that the state actor "exercised coercive power or ... provides such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State." Blum , 457 U.S. at 1004, 102 S.Ct. 2777. (citations omitted). To prevail under the "joint action" test, Plaintiff must show that "[t]he State has so far insinuated itself into a position of interdependence with [Defendants] ... that it must be recognized as a joint participant in the challenged activity." Burton v. Wilmington Parking Authority , 365 U.S. 715, 725, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961). Finally, to prevail under the "public function" test, Plaintiff must show that Defendants' functions as providers of nursing care are " ‘traditionally the exclusive...