“Serpico” Reference is an Insufficient Stand-In For Facts; FDNY Plaintiff’s Race Discrimination Complaint Dismissed For Failure to State a Claim

In Romero v. City of N.Y., No. 16 CIV. 4157 (BMC), 2016 WL 6155935 (E.D.N.Y. Oct. 21, 2016), Eastern District of New York Judge Cogan dismissed the race discrimination claims of plaintiff, a firefighter, for various reasons, including under Fed. R. Civ. P. 12(b)(6) because they did not plausibly allege discrimination.

From the decision:

As defendants accurately argued in their motion to dismiss, defendants Bradley and Barraco make no appearance in the factual allegation paragraphs of the complaint. They appear once under “Parties” and then under several of the “Causes of Action,” for hostile work environment, discrimination, and retaliation under 42 U.S.C. § 1983, NYSHRL, and NYCHRL. Yet plaintiff’s allegations in the “Causes of Action” are comprised of entirely conclusory allegations that each engaged in discriminatory and retaliatory conduct, allegations that fail to meet the pleading requirements. For example, plaintiff pleads that Bradley and Barraco, “under color of law, personally interfered with and deprived plaintiff of his constitutional rights, including the rights: to enjoy freedom of speech, to petition his government for redress of his grievances, to be secure in his person, to enjoy privacy, to be free from deprivation of life, liberty and property without due process of law.” This does not come anywhere close to meeting the standards in Twombly and Iqbal.

Plaintiff’s opposition did not include any semblance of a substantive argument in response. Rather, plaintiff begins his section in response with the following language: “The bane of all Plaintiff’s civil rights litigators is the so called Plausibility standard.” His only engagement with the instant action is to say that “the facts alleged in the complaint give the history leading up to Plaintiff’s termination.” That is as close as plaintiff comes to rebutting defendants’ arguments, because the remainder of his section is devoted to “[t]he paramount example of what the City of New York claims is implausible [,] … the time honored ‘Serpico’ factor.” Plaintiff concludes his summary of Frank Serpico’s life with a parenthetical, advising that he has discussed this matter with Mr. Serpico. Plaintiff did not respond at all against defendants’ arguments. Therefore, the claims against Bradley and Barraco are “deemed either abandoned or, in any event, without merit,” given that they fail to meet any pleading standard, much less a plausibility standard. (Emphasis added.)

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