Petre v. NYS Workers Compensation Board

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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GHEORGHE PETRE,

Plaintiff, MEMORANDUM & ORDER

23-CV-1641(EK)(MMH)

-against-

NYS WORKERS’ COMPENSATION BOARD, PMA

COMPANIES, MYMATRIXX AN EXPRESS

SCRIPTS CO., et al.,

Defendants.

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ERIC KOMITEE, United States District Judge:

Plaintiff Gheorghe Petre brings this action alleging

deprivation of due process under Section 1983. These

constitutional claims arise from the adjudication of Petre’s

claims for workers’ compensation — stemming from a twenty-five-

year-old injury — before the New York State Workers’

Compensation Board (“WCB”), and his later appeals to the New

York State Supreme Court and Appellate Division. All defendants

have moved to dismiss Petre’s pro se complaint under Rules

12(b)(1) and (6). For the reasons set out below, those motions

are granted.

I. Background

The following facts are drawn from the complaint,

documents incorporated by reference, documents integral to the

complaint, and documents of which the Court may take judicial

notice. Chambers v. Time Warner, Inc., 282 F.3d 147, 152-3 (2d

Cir. 2002). They are assumed true for purposes of this order.

Id. at 152.

In 1999, Petre — who was then working as a machine

shop supervisor — “injured his lower back and the right foot in

a work related accident.” Compl. ¶ 4, ECF No. 1. He filed

claims for workers’ compensation benefits, both for those

initial injuries and a series of later injuries. Id. ¶¶ 4-6.

The WCB eventually (in 2004) classified Petre as permanently

disabled. Id. ¶ 8. Beginning in 2002, Petre represented

himself before the WCB. Id. ¶ 10.

A. The Physical Therapy Dispute

Under the state’s Medical Treatment Guidelines,

Petre’s benefits covered ten sessions per year of physical

therapy for his injuries. Id. ¶¶ 16, 18-19. In 2011, Petre and

his insurance carrier, American Motorists Insurance Company

(“AMICO”) signed a stipulation before a Workers’ Compensation

Law Judge. Id. ¶ 14, 121; see also ECF No. 81-1. The parties

agreed that Petre would receive substantially more therapy

sessions than the Medical Treatment Guidelines called for —

three times per week for four weeks, and then two times per

month thereafter. Id. ¶¶ 14, 16. For a time, Petre received

the sessions called for by the stipulation and those called for

by the Medical Treatment Guidelines. Id. ¶ 18.

In 2013, a state court in Illinois, where AMICO is

domiciled, placed the company into liquidation. Ancillary

Receivership Order, ECF No. 10-1. PMA Management Corporation

(“PMA”) then assumed coverage of Petre’s workers’ compensation

benefits. Compl. ¶ 124.

Beginning in August 2018, PMA determined that it would

honor the stipulation, but not also cover the Guidelines’ ten

therapy sessions per year in addition. Id. ¶ 19. Petre sought

and received a hearing before a Workers’ Compensation Law Judge,

who sided with PMA, holding that Petre was only entitled to two

sessions per month (i.e., twenty-four sessions per year),

consistent with the stipulation. Id. ¶ 20; see also ECF No. 81-

2. A WCB appellate panel affirmed, as did the full Board. Id.

¶¶ 22-23; see also ECF Nos. 81-3, 81-4.

The New York Workers’ Compensation Law permits

claimants to appeal WCB decisions to the Appellate Division of

the state Supreme Court. N.Y. Workers’ Comp. Law § 23. Petre

sought review before the Third Department, which denied his

appeal in 2021. Petre v. Allied Devices Corp., 191 A.D.3d 1086,

1088 (3d Dep’t 2021). The New York Court of Appeals denied

Petre’s motion for leave to appeal that same year. Petre v.

Allied Devices Corp., 170 N.E.3d 453 (N.Y. 2021).

B. The Prescription Dispute

In August 2021, Petre initiated another administrative

proceeding before a Workers’ Compensation Law Judge. He sought

reimbursement for a prescription anticonvulsant medication,

which PMA had declined to cover. Compl. ¶¶ 66, 68. The judge

agreed with PMA that Petre’s doctors had to seek prior

authorization before Petre could request reimbursement for the

medication. Id. ¶ 72. Petre unsuccessfully appealed this

decision, too, to an administrative panel, the full WCB, and the

Third Department. See ECF Nos. 81-5, 81-6; Petre v. Allied

Devices Corp., 213 A.D.3d 1117, 1118 (3d Dep’t 2023).

This action followed. Petre brings a Section 1983

claim for deprivation of procedural due process under the

Fourteenth Amendment.1 He seeks four remedies: (1) a declaration

that he is entitled to reimbursement for the ten additional

physical therapy sessions under the 2011 stipulation; (2) a

declaration that he is entitled to reimbursement for the

anticonvulsant without prior authorization; (3) reimbursement of

“all unpaid expenses, including co-payments, submitted in the

last four years,” with interest; and (4) the imposition of

1 In his response, Petre insists that this complaint does not invoke

Section 1983. Pl.’s Resp. to Mot. to Dismiss 3, ECF No. 82. But Petre

brings a claim under the Fourteenth Amendment. Compl. ¶ 2, 142. And “the

vehicle for a civil action to enforce a claim that arises under the

Fourteenth Amendment is [Section] 1983.” Sykes v. N.Y. State Off. of

Children & Family Servs., No. 18-CV-8309, 2019 WL 4688608, at *10 (S.D.N.Y.

Sept. 25, 2019) (citing Thomas v. Roach, 165 F.3d 137, 142 (2d Cir. 1999)).

punitive damages and various monetary “sanctions” on the

defendants. Compl. ¶ 153.

II. Legal Standard

The defendants have moved for dismissal under Rules

12(b)(1) and (b)(6). When a party moves for dismissal under

Rule 12(b)(1) and on other grounds, a court should consider the

Rule 12(b)(1) challenge first. Rhulen Agency, Inc. v. Alabama

Ins. Guar. Ass'n, 896 F.2d 674, 678 (2d Cir. 1990). “A case is

properly dismissed for lack of subject matter jurisdiction under

Rule 12(b)(1) when the district court lacks the statutory or

constitutional power to adjudicate it.” Makarova v. United

States, 201 F.3d 110, 113 (2d Cir. 2000). The plaintiff bears

the burden of establishing subject matter jurisdiction. Id.

To overcome a motion to dismiss under Rule 12(b)(6), a

complaint must plead facts sufficient “to state a claim to

relief that is plausible on its face.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007). The Court must accept all

factual allegations in the complaint as true and draw all

reasonable inferences in the plaintiff’s favor. See Lundy v.

Cath. Health Sys. of Long Island Inc., 711 F.3d 106, 113 (2d

Cir. 2013). Moreover, when a plaintiff is proceeding pro se,

courts “construe [the] complaint liberally and interpret it to

raise the strongest arguments that it suggests.” Chavis v.

Chappius, 618 F.3d 162, 170 (2d Cir. 2010). That said, a pro se

plaintiff must still comply “with relevant rules of procedural

and substance law.” Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir.

1983).

III. Discussion

Petre asserts due process claims against two

categories of defendant: (1) the WCB, a New York state agency;

and (2) various private defendants who he alleges were involved

in his workers’ compensation benefits adjudications before the

WCB and state courts — namely, AMICO (currently held in

ancillary receivership by the New York State Liquidation

Bureau), PMA, PMA’s lawyers, and PMA’s pharmacy benefit manager,

myMatrixx. He alleges that the defendants’ collective

“interference” with his “right to medical treatment” violated

the Fourteenth Amendment. Compl. ¶¶ 2, 142.

The Court concludes that it lacks jurisdiction over

Petre’s claims against the WCB. It also concludes that Petre

fails to state a Section 1983 claim against the remaining

defendants.

A. The Claim Against the WCB

Petre’s claims against the WCB are barred by sovereign

immunity. Under the Eleventh Amendment, if Congress has not

explicitly abrogated a state’s immunity from suit, a

non-consenting state is immune from suits brought by its own

citizens in federal court. Clissuras v. City Univ. of New York,

359 F.3d 79, 81 & n.3 (2d Cir. 2004) (per curiam). Section 1983

did not abrogate New York’s sovereign immunity. See Will v.

Michigan Dep’t of State Police, 491 U.S. 58, 67 (1989). And

“[i]t is well-established that New York has not consented to

[Section] 1983 suits in federal court.” Mamot v. Bd. of

Regents, 367 F. App’x 191, 192 (2d Cir. 2010).

Actions brought against a state agency are actions

against the state itself. See Gollomp v. Spitzer, 568 F.3d 355,

365-66 (2d Cir. 2009). The WCB is a state agency. Palma v.

Workers Comp. Bd. of N.Y., 151 F. App’x 20, 21 (2d Cir. 2005).

So, the WCB is entitled to sovereign immunity. Id. This means

the Court lacks jurisdiction over Petre’s claims against the

WCB. Lunney v. United States, 319 F.3d 550, 554 (2d Cir. 2003)

(“Sovereign immunity is a jurisdictional bar . . . .”).2

B. The Claims Against the Remaining Private Defendants

While the Court has jurisdiction over Petre’s

remaining claims, he has failed to state a claim against any

private defendant.

2 Sovereign immunity does not bar injunctive relief against state actors

in their official capacity. Ex parte Young, 209 U.S. 123, 159-60 (1908).

And Petre seeks a declaration that the WCB and state court decisions

regarding his benefits are void — relief that is properly characterized as

equitable. See A.L. Mechling Barge Lines, Inc. v. United States, 368 U.S.

324, 331 (1961). To the extent that sovereign immunity does not prohibit

those remedies, however, the Rooker-Feldman doctrine does. E.g., Ford v.

U.S. Dep’t of Treasury I.R.S., 50 F. App’x 490, 491 (2d Cir. 2002) (Rooker-

Feldman barred plaintiff’s request for “a declaration that the [underlying]

foreclosure judgment [was] void”).

1. Neither Burford nor Younger Abstention Applies

AMICO and the State Liquidation Bureau argue that this

Court should decline to exercise its jurisdiction over the

claims against them pursuant to Burford and Younger abstention.

Neither doctrine, however, applies here.

When a plaintiff brings a claim for money damages

under Section 1983, a court may not abstain under either Burford

or Younger. See Quackenbush v. Allstate Ins. Co., 517 U.S. 706,

731 (1996) (“[F]ederal courts have the power to dismiss or

remand cases based on [Burford] abstention principles only where

the relief being sought is equitable or otherwise

discretionary.”); Rivers v. McLeod, 252 F.3d 99, 101-02 (2d Cir.

2001) (“[A]pplication of the Younger doctrine is inappropriate

where the litigant seeks money damages for an alleged violation

of [Section] 1983.”). By requesting “punitive damages” for the

alleged due-process violation, Petre has asserted such a claim.

Compl. ¶¶ 2, 142, 153. Accordingly, abstention is not

warranted.

2. The Rooker-Feldman Doctrine Does Not Apply

The remaining private defendants argue that the

Rooker-Feldman doctrine deprives the Court of subject matter

jurisdiction over the claims against them. They are also

mistaken.

The “basic theory” behind the Rooker-Feldman doctrine

is that “only the United States Supreme Court has been given

jurisdiction to review a state-court decision.” 18B Charles

Wright & Arthur Miller, Federal Practice and Procedure § 4469.1

(3d ed.). So, district courts lack jurisdiction over “cases

brought by state-court losers complaining of injuries caused by

state-court judgments rendered before the district court

proceedings commenced and inviting district court review and

rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic

Indus. Corp., 544 U.S. 280, 284 (2005). Successful invocations

of this doctrine are the exception rather than the rule.

Indeed, the Eleventh Circuit was recently moved to opine that

“district courts should keep one thing in mind when Rooker-

Feldman is raised: it will almost never apply.” Behr v.

Campbell, 8 F.4th 1206, 1212 (11th Cir. 2021).

Some of Petre’s requested relief does fall within the

ambit of Rooker-Feldman. See supra at note 2. But Petre also

seeks money damages for deprivation of procedural due process

under the Fourteenth Amendment. Compl. ¶ 153. And if this

Court were to hold that the WCB owed Petre damages for violating

his due process rights, this conclusion would not necessarily

“call into question any of the [WCB’s] findings regarding

[Petre’s entitlement to benefits].” Phifer v. City of New York,

289 F.3d 49, 61 (2d Cir. 2002). Rooker-Feldman therefore does

not deprive the Court of jurisdiction.

3. Petre States No Claim Against the Private Defendants

Petre fails to state a Section 1983 claim against

AMICO, PMA, PMA’s lawyers, or myMatrixx because he has not

adequately alleged state action on the part of those defendants.

Section 1983 only applies to state actors. Leeds v.

Meltz, 85 F.3d 51, 54 (2d Cir. 1996). So, to state a Section

1983 claim, Petre would have to “allege facts demonstrating that

the [private defendants] acted in concert with [a] state actor

to commit an unconstitutional act.” Spear v. Town of West

Hartford, 954 F.2d 63, 68 (2d Cir. 1992). This is a high bar,

and Petre does not clear it. He alleges only that these

defendants engaged in a “premeditated conspiracy” with the WCB

to deprive him of medical treatment. Compl. ¶ 142. “A merely

conclusory allegation that a private entity acted in concert

with a state actor does not suffice to state a [Section] 1983

claim against the private entity.” Ciambriello v. Cnty. of

Nassau, 292 F.3d 307, 324 (2d Cir. 2002).

That leaves the State Liquidation Bureau. The New

York Court of Appeals has held that the Bureau is not a “state

agency” within the meaning of the New York Finance Law. See

Dinallo v. DiNapoli, 877 N.E.2d 643, 648 (N.Y. 2007) (“The

Bureau does not perform a governmental or proprietary function

for the state, but rather runs the day-to-day operations of

private businesses in liquidation pursuant to Supreme Court

order.”). This suggests that the Bureau is also not a state

actor for Section 1983 purposes, and that Petre’s claim against

the Bureau should fail for the reasons noted above.

But even if the Bureau were a state actor, Petre’s

claim would still fall short. To state a Section 1983

procedural due process claim, a plaintiff must plausibly allege

that (1) he has a property right, (2) “the government has

deprived him of that right,” and (3) “the deprivation was

effected without due process.” Henry v. City of New York, 638

F. App’x 113, 115 (2d Cir. 2016). Assuming Petre had a property

right in the workers’ compensation benefits at issue, he has not

plausibly alleged that the Bureau deprived him of that right (at

all, let alone without the process due). After 2013, the Bureau

controlled the day-to-day operations of AMICO. See Compl.

¶ 123; Dinallo, 877 N.E.2d at 648. But AMICO was not Petre’s

insurance carrier when he lost coverage for his physical therapy

and anticonvulsant medication. PMA was. See Compl. ¶¶ 26,

64-66, 124. And the Bureau was not operating PMA. So, the

complaint does not plausibly allege that the Bureau (or the

insurance carrier it operated) had any hand in the alleged

deprivations.

IV. Conclusion

For the foregoing reasons, the defendants’ motions to

dismiss are granted. The complaint is dismissed without

prejudice.3 The Clerk of Court is respectfully directed to close

the case.

SO ORDERED.

/s/ Eric Komitee__________

ERIC KOMITEE

United States District Judge

Dated: May 6, 2025

Brooklyn, N ew York

3 Petre has also filed two motions to disqualify the presiding judge.

See ECF Nos. 90, 92. He cites his frustration that this case is not

proceeding quickly enough, but mere delay in the disposition of a motion does

not justify disqualification. United States v. Moritz, 112 F.3d 506 (2d Cir.

1997) (table decision); see also Riddick v. Semple, No. 18-CV-313, 2018 WL

10741347, at *1 (D. Conn. May 22, 2018). Petre’s motions for

disqualification are therefore denied.