Opinion
No. 02 Civ. 104 (MBM).
August 4, 2004
FRANK BETTIS, (Plaintiff pro se), New York, NY.
MICHAEL A. CARDOZO, ESQ., Corporation Counsel of the City of New York, ISAAC KLEPFISH, ESQ., Assistant Corporation Counsel, (Attorneys for defendants) New York, NY.
OPINION AND ORDER
In a prior action in this court, styled Bettis v. Safir, 97 Civ. 1908, plaintiff sued the New York City Police Department ("NYPD") and former Commisioners William Bratton and Howard Safir, and the City of New York, for intentional discrimination based on race under 42 U.S.C. § 1981 (1994) and Title VI, 42 U.S.C. § 2000(d) (1994). He filed also pendent state-law claims based on the same alleged discrimination. The claims arose from his dismissal from the NYPD after he was found guilty of ingesting cocaine after a departmental trial. In an Opinion and Order dated September 14, 2000, I granted the defendants' motion for summary judgment dismissing the federal claims, declined to exercise pendent jurisdiction over the state-law claims and dismissed those claims without prejudice. Bettis took no appeal from that decision.
In the case now before the court, filed on January 7, 2002, Bettis asserts again that his dismissal by the NYPD resulted from race discrimination. Defendants have moved to dismiss based onres judicata. For the reasons explained briefly below, the motion is granted.
The facts underlying the initial action, which are the same as those underlying this one, are described as follows in this court's September 14, 2000, opinion:
Bettis is an African-American who was employed by the NYPD as a police officer from August 1983 to March 1994. In April 1993, Bettis underwent a drug test under the NYPD's random drug testing program. He tested positive for cocaine.
At Bettis' disciplinary hearing, he did not contest the randomness of his selection for testing. Rather, he argued that he had tested positive because he had ingested Tylenol 4 with codeine following a tooth extraction the day before the drug test. Bettis presented several Tylenol tablets, which he claimed were from the same container as the ones he took before his drug test, and test results finding that the tablets contined cocaine. The NYPD presented expert testimony that the tablets had been tampered with after they were manufactured. The parties stipulated that Bettis's pharmacist would have testified that he had no knowledge of any tampering. As a result of the hearing, an Assistant Deputy Commissioner for Trials recommended finding Bettis guilty, and Commissioner Bratton fired him in March 1994. Bettis challenged his termination under New York Civil Practice Law and Rules Article 78. The Appellate Division affirmed. Bettis v. Bratton, 226 A.D.2d 281, 281-82, 641 N.Y.S.2d 631 (1st Dep't 1996).Bettis v. Safir, 97 Civ. 1908, 2000 U.S. Dist. LEXIS 13285, at *2-*3 (S.D.N.Y. Sept. 14, 2000) (citations omitted). Although Bettis challenged the uniformity of the NYPD's response to drug allegations against its officers, the evidence showed "that from August 1994 to October 1999, every officer who was charged with narcotics use either resigned, retired or was fired — with the exception of four officers, three of whom were non-white." Id. at *6-*7.
It has long been the rule in federal courts that a final judgment on the merits of an action bars the parties or their privies from relitigating issues that either "were or could have been raised in that action." Allen v. McCurry, 449 U.S. 90, 94 (1980). As noted, Bettis's complaint in the case at bar challenges the same dismissal on the same grounds as his earlier one. Bettis opposes application of res judicata here by arguing that defendants committed two frauds that undermine the validity of the first judgment. The first allegedly involved altering the charges against him in his disciplinary hearing in such a way as to prevent proper review before the Appellate Division when he appealed his dismissal. Supplement to Answer to Defendants' Motin for Dismissal ("Supplement") at 2-4. The second allegedly involved failure to disclose during discovery in the prior action before this court the case of one officer, Jeanette Alvarado (Supplement at 5), whom plaintiff claims was found after a hearing to have ingested cocaine and was not dismissed from the NYPD. Second Supplement to Answer to Defendants' Motion for Dismissal of Complaint, at 5.
The first of these alleged frauds by defendants, involving alteration of the charges against Bettis at his disciplinary hearing, has nothing to do with the prior action in this court, and could not undermine the earlier judgment on any ground, res judicata or otherwise.
As to the second, if Bettis seeks to avoid the earlier judgment based on defendants' alleged fraud, the way to have done that was by motion in that earlier case pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, which authorizes relief from a judgment resulting from "fraud . . . or other misconduct." Fed.R.Civ.P. 60(b)(3). However, such a motion must be made with one year after the judgment was entered, unless the fraud is sufficiently egregious to be considered a "fraud upon the court," in which event the court retains authority to set aside the judgment. Even if this action were to be treated as a motion pursuant to Rule 60(b) in the earlier case, it would not be timely because it was filed in January 2002, the case having been dismissed in September 2000.
Moreover, even assuming without deciding that the subject matter of the second alleged fraud, accepted as true for purposes of this discussion — concealment of one disciplinary case against a Hispanic-surnamed female police officer who allegedly was found to have ingested cocaine but was not dismissed from the NYPD — could be regarded as a "fraud upon the court" sufficient to avoid the limitations period of Rule 60(b), and the disciplinary case itself were considered as evidence, it would not change the outcome here because it could not have changed the overwhelming statistical evidence, cited above, showing that charges of drug use were generally a career-ending event at the NYPD. Thus, it would in no way have suggested that the decision to dismiss Bettis was racially motivated.
For the above reasons, the complaint is dismissed.
SO ORDERED.