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MONAHAN v. CITY OF NEW YORK DEP'T OF CORRECTION

July 7, 1998

DANIEL MONAHAN, et al., Plaintiffs,
v.
CITY OF NEW YORK DEPARTMENT OF CORRECTION, THE CITY OF NEW YORK, MICHAEL JACOBSON, Acting Commissioner, City of New York Department of Correction, TERANCE SKINNER, Deputy Warden and Commanding Officer of the Health Management Division of the City of New York Department of Correction, and JOHNSON, Supervisor Civilian (ID No. 25835), et al., Defendants.



The opinion of the court was delivered by: RAKOFF

OPINION AND ORDER

 JED S. RAKOFF, U.S.D.J.

 The plaintiffs in these twelve consolidated cases are current and former New York City correction officers who belonged at all relevant times to the Correction Officers' Benevolent Association ("COBA"), the exclusive bargaining agent for New York City correction officers. In 1995, their representative, Norman Seabrook, in his capacity as president of COBA, brought suit against the City of New York and related defendants challenging the constitutionality of the City's sick leave policy applicable to correction officers. See Seabrook v. Jacobson, No. 95 Civ. 4194 (FB) (E.D.N.Y., Compl. dated Oct. 13, 1995) (the "Seabrook " action). That policy, as embodied in Department of Correction Directive 2262, permitted unlimited sick leave for up to a full year provided a correction officer on sick leave generally remained at home. While the City believed that the stay-at-home requirement was necessary to prevent its otherwise liberal leave policy from degenerating into an open invitation to fraud, the correction officers, as represented by Seabrook, argued that it deprived the officers of a wide variety of substantive and procedural rights guaranteed to them by the United States Constitution.

 In April 1996, the Seabrook action was settled, pursuant to which an order was entered in federal court dismissing Seabrook's claims with prejudice. See Declaration of John F. Wirenius, dated November 20, 1997, Ex. E. Under the settlement, Directive 2262 was amended in numerous material respects. Among other things, correction officers on sick leave (with certain limited exceptions known as "sick leave abusers") were no longer required to remain in their residences during their first eight sick days in a given calendar year; officers injured in the line of duty who were scheduled to return to work within two weeks of the injury were not required to remain in their residences at all; officers injured on duty but without a specific return date could apply to the Health Management Division for permission not to be confined to their residences during some or all of their period of leave; and all other officers on sick leave were permitted to leave their residences at any time for medical appointments and for an additional uninterrupted period of up to four hours per day for any other purpose whatever ("recreational time"). While officers in the latter category had to select which of two four-hour time slots (one in the morning, one in the evening) they would utilize for such recreational time (so as to enable Department of Corrections "home visit captains" to check on them), they could change the selection every 30 days.

 The ink was hardly dry on this settlement when plaintiffs commenced the instant actions, challenging the amended Directive as facially violative of the First, Fourth, Fifth and Fourteenth Amendments of the Constitution and further contending that, in any event, the Directive has been unconstitutionally applied to them individually. *fn1" In effect they seek a third bite at the proverbial apple, since the sick leave policy challenged in the Seabrook action was itself the result of collective bargaining. The Court concludes, however, that they may no longer feed on this fruit, since as explained below, their claims are not only barred by principles of res judicata but also are both legally and factually deficient. Accordingly, defendants' pending motion for summary judgment must be granted and plaintiffs' claims dismissed.

 As noted, plaintiffs' first claim is that the sick leave policy arising from the Seabrook settlement, as embodied in amended Directive 2262, is unconstitutional on its face. To begin with, this claim is barred by the doctrine of res judicata. While it is true that defendants previously failed to plead this affirmative defense in all but two of the instant actions *fn2" and did not seek to amend the other pleadings to include this defense until filing for summary judgment, "absent prejudice to the plaintiff, a defendant may raise an affirmative defense in a motion for summary judgment for the first time." Steinberg v. Columbia Pictures Industries, Inc., 663 F. Supp. 706, 715 (S.D.N.Y. 1987) (quoting Rivera v. Anaya, 726 F.2d 564, 566 (9th Cir. 1984)); see also Block v. First Blood Assoc., 988 F.2d 344, 350 (2d Cir. 1993); Devito v. Pension Plan of Local 819 I.B.T. Pension Fund, 975 F. Supp. 258, 263 (S.D.N.Y. 1997); United States v. Krieger, 773 F. Supp. 580, 583 (S.D.N.Y. 1991). Although plaintiffs allege prejudice, chiefly in having to expend substantial time and effort on discovery that they claim would have been improvident if they had known their claims were subject to being barred by res judicata, it is settled that "the time, effort and money . . . expended in litigating" a matter does not constitute "prejudice" for this purpose. Block, 988 F.2d at 351. Moreover, substantially the only discovery taken by plaintiffs over the entirety of these 12 cases consisted of deposing two witnesses. (Defendants, for their part, simply deposed the various plaintiffs.) This hardly constitutes material prejudice.

 Nor, upon careful inspection of the record, do plaintiffs' other claims of prejudice find meaningful support. Conversely, even if plaintiffs' claims of prejudice were more colorable than they in fact are, on no analysis are they sufficiently substantial to overcome the "strong public policy in economizing the use of judicial resources" that, in appropriate cases, even warrants a court in raising the defense of res judicata sua sponte. Doe v. Pfrommer, 148 F.3d 73, 1998 U.S. App. LEXIS 12092, 1998 WL 341294, at *6 (2d Cir. 1998); see also Salahuddin v. Jones, 992 F.2d 447, 449 (2d Cir. 1993). Accordingly, defendants' application for leave to amend their answers in the other ten actions to assert the res judicata defense already raised in Almodovar and Ball is hereby granted.

 Once raised, res judicata fully disposes of plaintiffs' claim of facial unconstitutionality. "Res judicata assures the finality of judgments by precluding a party to a lawsuit from litigating a claim more than once." Chase Manhattan Bank, N.A. v. Celotex Corp., 56 F.3d 343, 345 (2d Cir. 1995). "Res judicata may also preclude claims by parties who were not involved in the earlier lawsuit . . . when the precluded party's interests were represented" in that lawsuit. Id. The doctrine takes effect when (1) there exists an adjudication on the merits in a prior lawsuit, (2) the prior lawsuit involved the party to be precluded or a party in privity with that party, and (3) the claims sought to be precluded were raised, or might reasonably have been raised, in the prior lawsuit. See id.

 All three of these requirements are met here. The voluntary dismissal of the Seabrook claims with prejudice constitutes an adjudication on the merits. See Chase Manhattan, 56 F.3d at 345. Privity is established because the plaintiff in the Seabrook case brought that action "in his capacity as President" of the union that represented all of the instant plaintiffs in connection with the very issues here raised: he and they were thus in privity as a formal matter, as a practical matter, and as a matter of the identity of interests between those involved in Seabrook and those involved in the instant actions. See id.; see also Nash v. Bowen, 869 F.2d 675, 679 (2d Cir. 1989) (judgment rendered against an association may serve as res judicata with respect to claims later asserted by members of that association). Finally, as to identity of claims, res judicata bars not only the instant claims under the First and Fourteenth Amendment (alleging violation of plaintiffs' rights to freely associate, vote, practice religion and exercise freedom of speech), which were expressly raised in Seabrook, but also the closely-related Fourth and Fifth Amendment claims (alleging that home confinement constituted an unreasonable search and seizure and violated plaintiffs' rights to privacy and due process), which reasonably could have been raised in the earlier proceeding. See id.

 Accordingly, for the foregoing reasons, all of plaintiffs' claims of facial unconstitutionality are barred by res judicata and must be dismissed on that ground. Separately and independently, for the reasons that follow, they must also be dismissed on the independent ground that they cannot survive summary judgment on the merits.

 Challenges to the facial constitutionality of regulations such as amended Directive 2262 are assessed under the "rational basis" test. Specifically, because of the multitude of legitimate interests that a government has in regulating conduct of its own agents and employees, the facial constitutionality of municipal regulations relating to municipal employees is usually satisfied if the municipal government can show a rational relationship between the challenged regulation and the state interest it is claimed to foster. See Kelley v. Johnson, 425 U.S. 238, 245, 47 L. Ed. 2d 708, 96 S. Ct. 1440 (1976); Pickering v. Board of Education, 391 U.S. 563, 568, 20 L. Ed. 2d 811, 88 S. Ct. 1731 (1968). While there may be unusual situations where a regulation's potential chilling effect on the exercise of a constitutional right may require strict scrutiny of even a facial challenge, see, e.g., Burson v. Freeman, 504 U.S. 191, 198, 119 L. Ed. 2d 5, 112 S. Ct. 1846 (1992), no such situation is here presented. *fn3"

 To meet the "rational basis" standard, defendants have provided unrebutted evidence that the modified home confinement aspects of Directive 2262 here challenged rationally serve the legitimate state interests of verifying officers' illnesses and preventing malingering. See, e.g., Affidavit of Terrence Skinner, dated November 20, 1997, at 8-10, 16-18. As defendants' evidence shows, it is perfectly rational for a state employer, as part of a negotiated bargain by which it agrees to compensate for up to a full year an employee who professes to be too sick to even come to work, to condition such payment on the employee's effectively establishing the truth of his professions by remaining at home for most (but far from all) of the day unless he is sufficiently well to have already scheduled a return to work.

 In response, plaintiffs, for all the myriad claims of facial unconstitutionality alleged in their Complaint, are reduced to arguing on this motion that the modified home confinement policies set forth in amended Directive 2262 are facially unconstitutional because, in the absence of more specific guidelines for their implementation, they must inherently operate in an arbitrary fashion. Defendants, for their part, contend that further guidelines exist, but fail to provide admissible evidence to support this contention. *fn4" No further guidelines are necessary, however, because amended Directive 2262 itself provides sufficient guidance to pass constitutional muster.

 A regulation is not rendered unconstitutional simply because its implementation requires the exercise of substantial discretion, unless such exercise presents an unreasonable potential for arbitrary denial of a constitutional right. In the sick leave cases on which plaintiffs here rely, Uryevick v. Rozzi, 751 F. Supp. 1064 (E.D.N.Y. 1990), and Voorhees v. Shull, 686 F. Supp. 389 (E.D.N.Y. 1987), this potential arose because unfettered discretion was delegated to administrators to provide undefined deviations from otherwise highly restrictive home confinement policies. In Voorhees, for example, the regulations at issue mandated that officers on sick leave could never leave their residences at all unless supervisors, on unspecified grounds, granted them permission. Voorhees, 686 F. Supp. at 390 & n.1. Similarly, in Uryevick, the regulations required a ...


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