-ETB Simpson v. O'Sullivan et al, No. 2:2009cv02334 - Document 36 (E.D.N.Y. 2010)
Court Description: MEMORANDUM AND ORDER granting 30 Motion to Dismiss. Defendants' motion to dismiss is GRANTED. Mr. Simpson has thirty (30) days to seek leave to file a Second Amended Complaint. If Mr. Simpson fails to seek such leave within the time-frame given, the Clerk of the Court is DIRECTED to mark this matter as CLOSED. So Ordered by Judge Joanna Seybert on 11/2/10. C/ECF (Valle, Christine)
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-ETB Simpson v. O&#039;Sullivan et al Doc. 36 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -----------------------------------X JEREMIAH SIMPSON, Plaintiffs, MEMORANDUM & ORDER 09-CV-2334 (JS)(ETB) -againstMARY O’SULLIVAN and HENRY SCHMITZ, Defendants. -----------------------------------X APPEARANCES: For Plaintiff: Arthur V. Graseck, Jr., Esq. 1870 Spur Drive South Islip Terrace, NY 11752 For Defendants: Robert W. Schumacher, II, Esq. United States Attorney's Office Eastern District Of New York 610 Federal Plaza Central Islip, NY 11722 SEYBERT, District Judge: Plaintiff Jeremiah Simpson filed suit alleging that Defendants Mary O’Sullivan and Henry Schmitz violated his Fifth Amendment due process rights by: (1) terminating him from a volunteer Center; position and veterans’ (2) at the improperly benefits. New York restricting Defendants Simpson’s Amended Complaint. Veterans have Affairs his right moved to to Medical receive dismiss Mr. For the following reasons, that motion is GRANTED. Dockets.Justia.com BACKGROUND1 Mr. Simpson is a disabled American veteran, incurred his disability in service to the United States. ¶ 4. who Compl. Between July 1987 and September 2007, he availed himself of the free medical and dental services he was entitled to as an American veteran with a service-related injury. In addition, Simpson between volunteered Compl. ¶ 5. September for 2001 Veterans of September the Vietnam 2007, War, Mr. Inc. In this capacity, he was permitted to use office space in a Veterans Affairs building. At Department and Compl. ¶ 5. all of relevant Veterans Compl. ¶ 6. Compl. ¶ 5. times, Affairs’ Ms. Chief O’Sullivan of Volunteer was the Services. Mr. Schmitz was the Chief of Veterans Affairs Police and, allegedly, Ms. O’Sullivan’s “paramour.” Compl. ¶ 7. In June 2006, Mr. Simpson refused to share unspecified “records” Falcone. responded with New York Compl. ¶ 16. to his On July 31, Veterans Counselor Cynthia Mr. Simpson contends that Ms. O’Sullivan refusal retaliation against him. State by embarking on a campaign of Compl. ¶ 17. 2006, Ms. O’Sullivan instructed Mr. Simpson to close his office and told him that he was under investigation. Compl. ¶ 9. In September 2006, Ms. O’Sullivan 1 The Court presumes Mr. Simpson’s factual allegations as true for this motion’s purposes. 2 falsely reported to the Internal Revenue Service that Simpson had failed to report income on his tax returns. ¶ 11. Mr. Compl. The IRS concluded that Ms. O’Sullivan’s charges were baseless. Id. In June 2007, Ms. O’Sullivan and Mr. Schmitz conspired with an unnamed “officer of the VA Police” to concoct a perjurous allegation that touched a female veteran.” Ms. Simpson Compl. ¶ 13. had “inappropriately In February 2008, this investigation concluded when Assistant United States Attorney Lara Gatz determined that Mr. Simpson “did not violate ‘any federal criminal law.’” Compl. ¶ 20. Mr. Simpson claims that, due to this conduct, he has lost his: (1) “unrestricted access” to Veterans Affairs’ facilities; (2) office space; and (3) ability to function as a volunteer who provides services to veterans. Compl. ¶ 21. In addition, Mr. Simpson claims that he has ceased taking advantage of the free medical and dental care he previously enjoyed at Veterans Affairs’ facilities, because “he humiliation of being treated as a criminal.” cannot bear Compl. ¶ 22. the He contends that these actions have violated his Fifth Amendment right to due process of law. DISCUSSION I. Standard of Review on a Motion to Dismiss In deciding FED. R. CIV. P. 12(b)(6) motions to dismiss, the Court applies a "plausibility standard," which is guided by 3 "[t]wo working principles," Ashcroft v. Iqbal, __ U.S. __, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009); Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). accepts all factual First, although the Court allegations as true, and draws all reasonable inferences in the plaintiff’s favor, this "tenet" is “inapplicable to legal conclusions"; thus, "[t]hreadbare recitals of the elements of a cause of action, supported by mere Harris, 572 F.3d at 72 conclusory statements, do not suffice." (quoting Ashcroft); Operating Local 649 Annuity Trust Fund v. Smith Barney 2010). Fund Management LLC, 595 F.3d 86, 91 (2d Cir. Second, only complaints that state a “plausible claim for relief” can survive Rule 12(b)(6). Id. Determining whether a complaint does so is “a context specific task that requires the reviewing common sense." II. court to draw on its judicial experience and Id. Volunteer Position & Office Space Claims Defendants argue that Mr. Simpson’s claims concerning his volunteer position and office space fail because he lacked a Constitutional property or liberty interest in serving volunteer or using Veterans Affairs’ office space. as a The Court agrees. For due process purposes, deciding whether a plaintiff has a property interest is a two-step process. determine whether some source 4 of law “First, we must other than the Constitution, such as a state or federal statute, confers a property right on the plaintiff . . . . Once such a property right is found, we must determine whether that property right ‘constitutes a property interest for purposes of the Fourteenth Amendment.’” 2005). O'Connor v. Pierson, 426 F.3d 187, 196 (2d Cir. Here, Mr. Simpson identifies no “state or federal statute” that gave him a property interest in using federal office space or in permitting him to serve as a volunteer with an outside veterans’ organization. And, absent such a statute, his property interest claims fail. See Versarge v. Township of Clinton N.J., 984 F.2d 1359, 1370 (3d Cir. 1993); Hyland v. Wonder, 972 F.2d 1129, 1140-42 (9th Cir. 1992); Hale v. Bexar County, Tex., 342 Fed. App’x 921, 927-928, (5th Cir. 2009) (unpublished). Similarly, Mr. Simpson’s office space and volunteer position interest. claims do not implicate any cognizable liberty Construed liberally, Mr. Simpson appears to allege a “stigma-plus” claim. To properly assert such a claim, Mr. Simpson must allege: (1) the utterance of a false statement that is injurious to reputation; and (2) “some tangible and material state-imposed burden in addition to the stigmatizing statement.” Monserrate v. New York State Senate, 599 F.3d 148, 158 (2d Cir. 2010) (summarizing how a plaintiff can allege the violation of a Constitutionally-protected liberty interest through a “stigma5 plus” claim). O’Sullivan Here, Mr. Simpson sufficiently alleges that Ms. made a false public statement that injured his reputation, when she allegedly falsely reported to the IRS that he failed to report income. And, arguably, Mr. Simpson also sufficiently pleads that Ms. O’Sullivan and Mr. Schmitz “made” another false statement, when they allegedly arranged for one of Mr. Schmitz’s subordinates to falsely report to the United States Attorney’s Office that Mr. Simpson sexually assaulted a patient. So Mr. Simpson adequately establishes the “stigma” prong of a “stigma-plus” claim. But, with respect to his office space and volunteer position claims, Mr. Simpson fails to sufficiently plead the “plus,” which the Second Circuit has most recently described as “some tangible and material state-imposed burden.” Monserrate, 599 F.3d at 158. In so holding, the Court acknowledges that “it is clear not entirely what” qualifies under this Valmonte v. Bane, 18 F.3d 992, 1000 (2d Cir. 1994). standard. But Mr. Simpson’s claims do not fit into any category that has been recognized as a sufficient “burden.” He did not lose employment or suffer any “statutory impediment” to employment. 1001-02. Id. at Instead, he lost only a volunteer position with an outside organization that Defendants did not directly control. See Compl. ¶¶ 5-7 (noting that Mr. Simpson volunteered for “Veterans of the Vietnam War, Inc.” while Defendants worked for 6 the Department of Veterans Affairs). As discussed above, he lacked a property right in the volunteer position and the office space. See Segal v. City of New York, 459 F.3d 207, 212 (2d Cir. 2006). And he was not deprived of any “legal right or status,” because he had no legal right to the office space, or the volunteer position with the outside organization. v. Pataki, 278 F.3d 93, 101-102 (2d Cir. 2002). Abramson It follows then that Mr. Simpson’s office space and volunteer position claims do not set forth a “stigma plus” liberty interest claim. III. VA Benefits Claims Defendants contend that Mr. Simpson also fails to plead a due process claim with respect to his medical and dental benefits. In this regard, Defendants principally argue that Mr. Simpson’s claim should be dismissed because: (1) Mr. Simpson fails to plead that Defendants participated in administering his medical and dental benefits claims; and (2) sovereign immunity prevents him from bringing suit in connection with a veterans’ benefits dispute. his claim. This argument misunderstands the nature of Mr. Simpson does not claim that Defendants denied him medical or dental benefits. Instead, Mr. Simpson contends that, due to Defendants’ false statements, he has not used his benefits treated because like a he “cannot criminal.” bear the Compl. ¶ humiliation 22. Thus, of being properly understood, Mr. Simpson does not allege that anyone has denied 7 him medical or dental benefits outright. Instead, Mr. Simpson appears to claim some kind of due process violation based on his perceived “humiliation,” which prevented him from exercising his right to veterans’ benefits. Mr. allege any criminal.” or facts to Amended support Complaint that he does was not, “treated however, like a And Mr. Simpson does not have any cognizable liberty property Simpson’s Simpson’s interest claims in his concerning self-esteem. the Consequently, constructive denial of Mr. his veterans’ benefits must also be dismissed. IV. Leave to Amend Although Mr. Simpson’s Amended Complaint did not plead any facts concerning the “humiliation” that supposedly led to him not using his medical and dental benefits, his opposition papers did contain a few factual allegations concerning this claim.2 Second Given these allegations, the Court cannot say that a Amended Complaint would 2 be futile, particularly with In opposing Defendants’ motion to dismiss, Mr. Simpson appears to allege such facts, claiming that Defendants’ actions caused him to “lose access to V.A. benefits unless he submitted to being handcuffed and escorted by security personnel when seeking medical, mental health or dental services at any V.A. facility.” But a non-pro se plaintiff “may not amend [his] complaint through [his] opposition.” Rodriguez v. Goetz, 09-CV-3728, 2010 WL 451032, at *1 n.1 (S.D.N.Y. February 1, 2010) (declining to consider factual allegations raised in opposition to motion to dismiss); see also Space, Inc. v. Simowitz, 08-CV-2854, 2008 WL 2676359, at *4 (S.D.N.Y. July 8, 2008) (declining to consider “new factual allegations that are not contained in the Complaint”). 8 respect to a “stigma-plus” claim. At the same time, absent more factual detail, the Court cannot speculate as to whether Mr. Simpson can succeed in stating a claim. Accordingly, the Court grants Mr. Simpson thirty (30) days to seek leave to file a Second Amended Complaint. CONCLUSION Defendants’ motion to dismiss is GRANTED. Mr. Simpson has thirty (30) days to seek leave to file a Second Amended Complaint. If Mr. Simpson fails to seek such leave within the time-frame given, the Clerk of the Court is DIRECTED to mark this matter as CLOSED. SO ORDERED /s/ JOANNA SEYBERT Joanna Seybert, U.S.D.J. Dated: Central Islip, New York November 2, 2010 9
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