Burke v. Apt Foundation

Page 169

509 F.Supp.2d 169

Michael Anthony BURKE, Plaintiff, v. APT FOUNDATION et al., Defendants.

Civil No. 3:07cv820 (MRK).

United States District Court, D. Connecticut.

September 12, 2007.

Michael A. Burke, Stratford, CT, pro se.

Margaret M. Sheahan, Pullman & Cornley, Bridgeport, CT, for Defendants;

RULING AND ORDER

MARK R. KRAVITZ, District Judge.

Pending before the Court is Defendants' Motion to Dismiss [doc. # 13] and Mr. Burke's Motion to Appoint Counsel [doc. # 5]. In their motion, Defendants argue that Mr. Burke's claims should be dismissed under Federal Rules of Civil Procedure 12(b)(1), for lack of subject matter jurisdiction, and 12(b)(6), for failure to state a claim. Having considered the parties' briefs, including Mr. Burke's responses [doc. ## 16, 22] to Defendants' motion to dismiss, the Court GRANTS Defendants' motion to dismiss and DENIES AS MOOT Mr. Burke's motion to appoint counsel.¹ See Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir.1986) ("In deciding whether to appoint counsel ..., the district judge should first determine whether the indigent's position seems likely to be of substance.").

I.

The following facts are taken from Mr. Burke's Complaint.² Mr. Burke was hired as a Rehabilitation Counselor II by APT Foundation ("APT") in October 2006, and was discharged in mid-March 2007. Mr. Burke identifies seven instances of alleged discriminatory action by APT. The first is that he was placed in an office located in a corridor away from the other rehabilitation counselors. Mr. Burke also alleges in his complaint that the office was dirty and unpainted. The second instance of alleged discrimination is that Mr. Burke, unlike the other rehabilitation counselors, was allegedly placed in supervision for longer than the orientation period. The third is that Mr. Burke was denied a 3% pay raise, which he claims APT made available to other rehabilitation counselors with certain credentials also possessed by Mr. Burke. Fourth, Mr. Burke claims that he applied for two promotions, director of a new access center and therapist at the Daytop Program in Bridgeport, but was unfairly denied both positions. The fifth instance of alleged discrimination is that Mr. Burke was assigned to a retention committee, allegedly without his knowledge or permission, and was pressured into remaining on the committee against his will, despite the fact that attendance was supposed to be voluntary. The Court reads the sixth and seventh claims of Mr. Burke's complaint to allege that Mr. Burke was subjected to racial name-calling and other verbal harassment in APT's Human Resources office. Mr. Burke claims that Kathy Floyd, an APT employee and Mr. Burke's supervisor, told Mr. Burke that if he did not attend retention committee meetings and otherwise comply with her wishes, she would encourage Mr. Burke's patients, recovering heroin addicts, to harm him. Mr. Burke called the police later that afternoon to report the threat, but states that the police report, did not accurately reflect his concerns and was biased in APT's favor. In the sixth instance of alleged discrimination, Mr. Burke claims that he was unfairly suspended with pay in retaliation for having filed his complaint with the New Haven police, and that the APT employee who suspended him also spread rumors to the effect that Mr. Burke had a medical condition that might affect his work performance. Mr. Burke also alleges that he was not paid all the money owed him at the time of his termination and that his clinical books were removed from his office. Although Mr. Burke was paid the list price of the books, he states that the books had greater personal value to him due to notes and other information he had added to the text. Seventh and finally, Mr. Burke claims that APT employees made false statements regarding the reasons for his discharge from APT at a hearing in which Mr. Burke appealed the denial of his application for unemployment benefits.

Mr. Burke filed an internal grievance with APT regarding the police report and his suspension with pay, and after the grievance was denied, he filed this lawsuit. Mr. Burke alleges numerous claims against APT and several of its employees, Carolyn Parler-McRae, Jane Tendler, Kathy Floyd, Arm Dubois-Frazier, and Bob Freeman.

II.

Federal Rule of Civil Procedure 8(a) requires only that a complaint present "a short and plain statement of the claim showing that the pleader is entitled to relief." In considering a motion to dismiss under Federal Rule of Civil Procedure 12(b), the Court "must accept as true all allegations in the complaint and draw all reasonable inferences in favor of the nonmoving party." Gorman v. Consol. Edison Corp., 488 F.3d 586, 591-92 (2d Cir. 2007) (citing Taylor v. Vt. Dep't of Educ., 313 F.3d 768, 776 (2d Cir.2002)). Further, "[s]pecific facts are not necessary; the statement need only give the defendant fair notice of what the claim is and the grounds upon which it rests." Erickson v. Pardus, ___ U.S. ___, ___, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007) (quotation marks and alteration omitted) (quoting Bell Atlantic Corp. v. Twombly, ___ U.S ___, ___, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957))).

The Supreme Court recently sought to clarify the pleading requirements a complaint must meet in order to avoid dismissal in Bell Atlantic v. Twombly, ___ U.S. ___, 127 S.Ct. 1955, 167 L.Ed.2d 929. There, the Supreme Court explicitly repudiated an oft-quoted description of the standard for motions to dismiss, namely the language in Conley v. Gibson, 355 U.S. at 45-46, 78 S.Ct. 99, explaining "the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." See Bell Atlantic, 127 S.Ct. at 1969. According to the Supreme Court in Bell Atlantic, that "phrase is best forgotten as an incomplete, negative gloss on an accepted pleading standard: once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Id.

The Second Circuit examined Bell Atlantic in a recent decision in which the circuit noted that Bell Atlantic's "conflicting signals create some uncertainty as to the intended scope of the [Supreme] Court's decision." Iqbal v. Hasty, 490 F.3d 143, 157 (2d Cir.2007). Nevertheless, the Second Circuit concluded that "[a]fter careful consideration of the [Supreme] Court's opinion and the conflicting signals from it that we have identified, we believe that the Court is not requiring a universal standard of heightened fact pleading." Id. Instead, Bell Atlantic requires a "flexible `plausibility standard,' which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible." Id. at 157-58. Thus, to survive a motion to dismiss under "the plausibility standard of Bell Atlantic, a conclusory allegation concerning some elements of a plaintiffs claim might need to be fleshed out by a plaintiffs response to a defendant's motion for a more definite statement." Id. at 158. Even when a complaint survives a motion to dismiss, courts should be mindful of the need to fashion discovery and motion deadlines to account for the requirements of the case and the defenses asserted. See id. at 159 (Courts "must exercise [their] discretion in a way that protects the substance of the qualified immunity defense ... so that officials or former officials are not subjected to unnecessary and burdensome discovery or trial proceedings.") (quotation marks omitted).

III.

Mr. Burke states in his complaint that he is raising claims under 18 U.S.C. §§ 241, 242, 246, and 371, and the Ku Klux Klan Act of 1871, now codified at 42 U.S.C. §§ 1983, 1985, and 1986.³ See Virginia. v. Black, 538 U.S. 343, 353, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003). The Court will first address Mr. Burke's claims under Title 18 of the United States Code.

Each of the statutory provisions under Title 18 identified by Mr. Burke are criminal statutes. As such, they do not provide a private right of action to civil litigants. See, e.g., Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 511 (2d Cir.1994) (holding that 18 U.S.C. §§ 242 and 1385 are criminal statutes and do not provide a private cause of action); Ammann v. Connecticut, No. 3:04CV1647 (MRK), 2005 WL 465401, at *5 (D.Conn. Feb.10, 2005) (holding that no private cause of action exists under 18 U.S.C. §§ 241, 242). Accordingly, the Court dismisses Mr. Burke's claims under 18 U.S.C. §§ 241, 242, 246, and 371.

The Court next turns to Mr. Burke's claims under the Ku Klux Klan Act. Section 1983 states:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law....

42 U.S.C. § 1983. Thus, "`kin order to state a claim under § 1983, a plaintiff must allege that he was injured by either a state actor or a private party acting under color of state law.'" Ciambriello v. County of Nassau, 292 F.3d 307, 323 (2d Cir.2002) (quoting Spear v. Town of West Hartford, 954 F.2d 63, 68 (2d Cir.1992)). Mr. Burke does not allege that either APT or its employees are state actors. Thus, all of the defendants here are beyond the reach of § 1983 liability, unless they engaged in conduct that can be characterized as state action or they acted in concert with a state actor to violate Mr. Burke's constitutional rights. Id.

This Court has previously considered the state action doctrine as applied to a private actor in Szekeres...