737 F. Supp. 2d 121
W.D.N.Y.2010Background
- Murray, pro se, sues DOCS employees and Ratner asserting First and Fourteenth Amendment retaliation and harassment during his DOCS employment as a substance abuse counselor.
- Twenty-one individual defendants move to dismiss under Fed. R. Civ. P. 12(b)(5) and (6) for improper service and failure to state a claim against Ratner.
- DOCS Commissioner Fisher participated via answer; the State and DOCS were previously dismissed on Eleventh Amendment immunity grounds.
- The court initially excused deficiencies in service and allowed claims against Ratner to proceed, denying dismissal of others and extending time to serve remaining defendants.
- Murray attempted service by delivering complaints to the Commissioner and by certified mail to the Commissioner, but DOCS staff sometimes rejected in-person service; the court found good faith in attempting to perfect service despite form deficiencies.
- Reconsideration was granted to address whether Goetz was a designated agent for service and to determine the proper extension under Rule 4(m) for serving individual defendants in their official capacities.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service of process proper under Rule 4/m and CPLR §307 | Murray acted diligently; Goetz accepted service for the Commissioner; defendants resisted; mail service attempted. | Defendants contend lack of proper personal service and improper service by mail; Goetz was not a designated agent. | Extending time for service; excuses failure; service deemed effective given notice and agency conduct. |
| Whether Ratner's conduct supports a First Amendment retaliation claim | Ratner’s denial of FOIL requests was retaliatory against Murray for exercising First Amendment rights. | FOIL denial alone does not establish a First Amendment retaliation claim; need for state action against speech. | Plaintiff states a plausible First Amendment retaliation claim against Ratner; Fourth Amendment claim improper. |
| Whether Ratner states a Fourteenth Amendment claim | FOIL-related retaliation implicated a due process interest. | No constitutionally protected property interest in FOIL handling; due process claim not viable. | Fourteenth Amendment claim dismissed against Ratner. |
Key Cases Cited
- Sheppard v. Beerman, 18 F.3d 147 (2d Cir. 1994) (standard for pleading under 12(b)(6))
- Ad-Hoc Comm. of Baruch Black & Hispanic Alumni Ass'n v. Bernard M. Baruch College, 835 F.2d 980 (2d Cir. 1987) (notice pleading; liberal pleadings standards)
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (U.S. 2007) (plausibility standard for pleading claims)
- Fashion Page, Ltd. v. Zurich Ins. Co., 50 N.Y.2d 265 (N.Y. 1980) (excusable delay and agency conduct in service issues; state procedure context)
- Henderson v. United States, 517 U.S. 654 (U.S. 1996) (service and notice requirements; due process considerations)
- Salahuddin v. Cuomo, 861 F.2d 40 (2d Cir. 1988) (preference for deciding cases on the merits; Rule 4(m) extension analysis)