Opinion
21-CV-5082 (LTS)
06-28-2021
BORIS TEICHMANN, Plaintiff, v. NEW YORK CITY EMPLOYEES' RETIREMENT SYSTEM, Defendant.
ORDER TO AMEND
LAURA TAYLOR SWAIN, CHIEF UNITED STATES DISTRICT JUDGE
Plaintiff, appearing pro se, brings this action under 42 U.S.C. § 1983, alleging that Defendant violated his constitutional rights. Plaintiff moves for pro bono counsel. By order dated June 9, 2021, the Court granted Plaintiff's request to proceed without prepayment of fees, that is, in forma pauperis (IFP).
STANDARD OF REVIEW
The Court must dismiss an IFP complaint, or any portion of the complaint, that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); see Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must also dismiss a complaint when the Court lacks subject matter jurisdiction. See Fed.R.Civ.P. 12(h)(3).
While the law mandates dismissal on any of these grounds, the court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the “strongest [claims] that they suggest, ” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original). But the “special solicitude” in pro se cases, id. at 475 (citation omitted), has its limits to state a claim, pro se pleadings still must comply with Rule 8 of the Federal Rules of Civil Procedure, which requires a complaint to make a short and plain statement showing that the pleader is entitled to relief.
The Supreme Court has held that, under Rule 8, a complaint must include enough facts to state a claim for relief “that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible if the plaintiff pleads enough factual detail to allow the court to draw the inference that the defendant is liable for the alleged misconduct. In reviewing the complaint, the court must accept all well-pleaded factual allegations as true. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). But it does not have to accept as true “[t]hreadbare recitals of the elements of a cause of action, ” which are essentially just legal conclusions. Twombly, 550 U.S. at 555. After separating legal conclusions from well-pleaded factual allegations, the court must determine whether those facts make it plausible - not merely possible - that the pleader is entitled to relief. Id.
BACKGROUND
The complaint sets forth the following facts. Plaintiff applied for retroactive disability pension benefit payments with the New York City Employees' Retirement System (NYCERS). According to Plaintiff, he is “legally entitled” to such payments, under “Section 605 of the New York State Retirement and Social Security Law, ” for the time running from December 18, 2008, through December 23, 2018. (ECF 2 ¶ III.) The assistant general counsel for NYCERS either demanded that Plaintiff provide additional documentation to support the application, or claimed that necessary documents were missing. But even after Plaintiff repeatedly submitted all the materials requested, on June 11, 2018, NYCERS denied Plaintiff's application. (Id.) Plaintiff does not provide the reasons NYCERS gave for denying the application, but he alleges that NYCERS violated his right to due process, breached a contract, and caused him emotional distress.
Beginning in 2013, Plaintiff has “had numerous court proceedings against” NYCERS in New York State Supreme Court, New York County. See, e.g., Teichmann v. NYCERS, Ind. Nos. 400140/2013, 10027/2016, 101209/2018. Publicly available state court records show that the 2018 matter, which Plaintiff filed under Article 78 of the New York Civil Practice Law and Rules, was dismissed as untimely, and that the Appellate Division affirmed that decision. See Teichmann v New York City Employees' Retirement System, 111 N.Y.S.3d 176, 2019 WL 6482102 (1st Dep't Dec. 3, 2019) (affirming dismissal of Article 78 proceeding as untimely filed because “respondent notified petitioner of its final determination in June 2017, but petitioner did not commence this proceeding until August 2018.”), lv. denied, 35 N.Y.3d 913 (Sept. 1, 2020).
Plaintiff asserts that the 2018 case was erroneously dismissed as untimely because the four-month statute of limitations period applicable to Article 78 proceedings did not apply to his breach of contract claim. Plaintiff further asserts that the dismissal on timeliness grounds was “procured through fraud, perjury, and deception.” (Id.) Plaintiff seeks the retroactive benefits and money damages.
DISCUSSION
A. Due process claim
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege both that: (1) a right secured by the Constitution or laws of the United States was violated, and (2) the right was violated by a person acting under the color of state law, or a “ state actor.” West v. Atkins, 487 U.S. 42, 48-49 (1988). The Court construes the complaint as asserting a section 1983 claim for a violation of Plaintiff's procedural due process rights guaranteed by the Fourteenth Amendment. “The two threshold questions in any § 1983 claim for denial of procedural due process are whether the plaintiff possessed a liberty or property interest protected by the United States Constitution or federal statutes and, if so, what process was due before plaintiff could be deprived of that interest.” Green v. Bauvi, 46 F.3d 189, 194 (2d Cir. 1995) (citing Logan v. Zimmerman Brush Co., 455 U.S. 422, 428 (1982)); see also Hynes v. Squillance, 143 F.3d 653, 658 (2d Cir. 1998) (To state a due process claim, a plaintiff must “demonstrate that he possessed a protected liberty or property interest, and that he was deprived of that interest without due process of law.”). “The fundamental requisite of due process of law is the opportunity to be heard . . . at a meaningful time and in a meaningful manner.” Goldberg v. Kelly, 397 U.S. 254, 267 (1970) (citations omitted).
NYCERS is a suable entity under the New York City Charter. See, e.g., Minima v. New York City Employees' Ret. Sys., No. 11-CV-2191 (CBA) (SMG), 2012 WL 4049822, at *1 n.1 2012 WL 4049978 (E.D.N.Y. Sept. 13, 2012).
Where the government deprives a plaintiff of a property interest pursuant to an established procedure, due process is generally satisfied so long as some form of hearing is provided before the individual is finally deprived of the property interest. Nnebe v. Daus, 644 F.3d 147, 158 (2d Cir. 2011).
Conduct is undertaken in accordance with established state procedures when, for example, it is “pursuant to a statute, code, regulation, or custom” or is the result of a decision made by a high-ranking official with “final authority over significant matters, ” see Viteritti v. Inc. Vill. of Bayville, 918 F.Supp.2d 126, 134 (E.D.N.Y. 2013) (citing Chase Grp. Alliance LLC v. City of New York Dep't of Fin., 620 F.3d 146, 152 n.3 (2d Cir. 2010)).
By contrast, a government employee's random and unauthorized act does not violate due process if a meaningful postdeprivation remedy is available; when the government cannot predict precisely when the loss will occur, it would be impossible to provide a meaningful hearing before the deprivation of property. See Hudson v. Palmer, 468 U.S. 517, 533 (1986); Parratt v. Taylor, 451 U.S. 527, 540-43 (1981), overruled in part on other grounds by Daniels v. Williams, 474 U.S. 327, 220-31 (1986); see also Hellenic Am. Neighborhood Action Comm. v. City of New York, 101 F.3d 877, 882 (2d Cir. 1996) (“[T]here is no constitutional violation (and no available § 1983 action) when there is an adequate state postdeprivation procedure to remedy a random, arbitrary deprivation of property or liberty.”).
Courts in the Second Circuit have repeatedly held that “the availability of postdeprivation Article 78 proceedings in the NYCERS pension context is generally constitutionally adequate process even where the process internal to NYCERS was not wholly adequate, or where the plaintiff failed to timely file an Article 78 [petition]” in the appropriate state court. See King v. New York City Employees' Retirement System, 595 Fed.Appx. 10, 12 (2d Cir. 2014) (summary order, collecting cases); Campo v. New York City Employees' Retirement System, 843 F.2d 96, 101-03 (2d Cir. 1988) (holding that an Article 78 proceeding provides an adequate postdeprivation remedy for persons challenges the curtailment of pension benefits by NYCERS).
It is not clear from the complaint what type of process Plaintiff received or why his application was denied. Plaintiff thus does not provide sufficient facts for the Court to determine whether his claim arises under an established state procedure or a random and unauthorized act. The Court grants Plaintiff leave to amend his complaint to provide additional facts in support of a due process claim. See Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988) (holding that district courts generally grant a pro se plaintiff an opportunity to amend a complaint to cure its defects).
B. State law claims
Plaintiff asserts breach of contract and intentional infliction of emotional distress, which arise under state law. A district court may decline to exercise supplemental jurisdiction over state law claims when it “has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). Generally, “when the federal-law claims have dropped out of the lawsuit in its early stages and only state-law claims remain, the federal court should decline the exercise of jurisdiction.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988)).
Because it is not clear whether Plaintiff can state a federal claim, the Court will determine at a later stage whether to exercise supplemental jurisdiction over any state-law claims Plaintiff may be asserting. See Kolari v. New York-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006) (“Subsection (c) of § 1367 ‘confirms the discretionary nature of supplemental jurisdiction by enumerating the circumstances in which district courts can refuse its exercise.'”) (quoting City of Chicago v. Int' l Coll. of Surgeons, 522 U.S. 156, 173 (1997)).
C. Motion for pro bono counsel
The factors to be considered in ruling on an indigent litigant's request for counsel include the merits of the case, Plaintiff's efforts to obtain a lawyer, and Plaintiff's ability to gather the facts and present the case if unassisted by counsel. See Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989); Hodge v. Police Officers, 802 F.2d 58, 60-62 (2d Cir. 1986). Of these, the merits are “[t]he factor which command[s] the most attention.” Cooper, 877 F.2d at 172. Because it is too early in the proceedings for the Court to assess the merits of the action, Plaintiff's motion for counsel is denied without prejudice to renewal at a later date.
CONCLUSION
The Court grants Plaintiff leave to amend his complaint. Plaintiff must submit the amended complaint to this Court's Pro Se Intake Unit within sixty days of the date of this order, caption the document as an “Amended Complaint, ” and label the document with docket number 21-CV-5082 (LTS). An Amended Complaint form is attached to this order. No summons will issue at this time. If Plaintiff fails to comply within the time allowed, and he cannot show good cause to excuse such failure, the complaint will be dismissed for failure to state a claim upon which relief may be granted.
The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
The Clerk of Court is directed to mail a copy of this order to Plaintiff and note service on the docket.
SO ORDERED.