The opinion of the court was delivered by: Marrero, District Judge.
Wilfredo Torres ("Torres"), a former Correction Officer in the
New York City Department of Correction ("DOC"), brings this
action against the City of New York, the Commissioner of DOC,
Dr. Okonta, Dr. Barouch, Deputy Warden James Bird and
unidentified employees of DOC and its Health Management Division
("HMD"). Torres, who was out on sick leave from DOC for
approximately one year, claims that DOC's sick leave policy is
unconstitutional as applied to him and others slated for
permanent disability. Torres asserts claims under
42 U.S.C. § 1983 for violations of the First, Fourth, and Fourteenth
Amendments, as well as pendant state law claims of medical
malpractice, intentional infliction of emotional distress, and
negligent hiring and retention.
The City, DOC, Drs. Okonta and Barouch, and Deputy Warden Bird
(hereinafter the "Defendants") now move to dismiss pursuant to
Fed.R.Civ.P. 12(c), arguing, among other things, that (1) the
entire complaint is barred by the doctrine of res judicata; (2)
the complaint fails to state a claim for which relief could be
granted under the First Amendment's Free Exercise Clause, the
Fourteenth Amendment's Due Process Clause and Equal Protection
Clause, or for medical malpractice.
In March 1984, Torres was appointed to DOC as a Correction
Officer. Compl. ¶ 16. While employed by DOC, Torres was a member
of a labor union, the Correction Officers' Benevolent
Association ("COBA"). In October 1988, Torres was injured by
inmates in a riot at the Brooklyn House of Detention ("BHD").
Id. ¶ 16. Nine years later, in October 1997, Torres stumbled
on a loose carpet at BHD and remained in the hospital for three
days. Id. ¶ 17. Torres alleges that this fall brought up
memories of the 1988 riot and caused him severe emotional
distress. Id. As a result, Torres was placed on sick leave and
never returned to work before being granted permanent disability
retirement in September 1998. Id.
Torres alleges that while on sick leave, DOC "worked on him
and tried to harass him out of applying for permanent
disability." Id. ¶ 17. Pursuant to DOC's sick leave policy, as
promulgated in Directive 2262, an officer on sick leave is
required to remain in his residence except for four "recreation
hours" or when logged out for medical appointments. Torres
claims that he was denied permission to attend a fellow
Correction Officer's funeral service and was only permitted to
attend part of the wake. Id. He further asserts that he was
harassed by continual home visits by DOC employees. Id.
Finally, he alleges that HMD psychiatrists or psychologists
committed medical malpractice because they failed to use
reasonable care and conspired to maliciously and deliberately
ignore his condition of total disability.
In 1995, COBA president Norman Seabrook, along with two other
correction officers, brought an action in the Eastern District
of New York asserting that DOC's sick leave policy was
unconstitutional (the "Seabrook Action"). See Compl.,
Seabrook v. Jacobson, No. 95 Civ. 4194 (E.D.N.Y.) (attached as
Ex. A to Defendants' Notice of Motion to Dismiss). The
plaintiffs sought both damages and equitable relief on behalf of
Pursuant to the COBA stipulation, DOC amended the sick leave
policy, with COBA's cooperation. The amended policy provided,
among other things, that officers otherwise out on sick leave
are required to remain in their residences except for their four
"recreation hours" or when they log out for medical
appointments. While correction officers are on sick leave and
subject to the in-residence rules, they are also subject to home
visitation by home visit captains designed to deter the abuse of
sick leave benefits, evaluate the correction officer's medical
condition and ability to perform his duties, and investigate
officers suspected of feigning illness.
In Monahan v. City of New York Dep't of Correction,
10 F. Supp.2d 420 (S.D.N.Y. 1998) aff'd 214 F.3d 275 (2d Cir.
2000), twelve former and current correction officers challenged
the constitutionality of DOC's sick leave policy, raising claims
under First, Fourth, Fifth and Fourteenth Amendments. The
district court dismissed these claims because they were barred
by res judicata insofar as the relevant issues had been
litigated and disposed in the Seabrook action. The claims
which the court determined were not barred by res judicata,
"such as alleged harassment, wrongful punishment, or disparate
application of the sick leave policy," were dismissed on summary
On appeal, the Second Circuit affirmed the district court, but
also noted that "plaintiffs' as-applied claims regarding the
right to participate in `constitutionally-protected activities'
fail to survive the initial res judicata evaluation." 214 F.3d
at 292. For example, the Circuit Court held specifically that
the Monahan plaintiffs' claims that they were denied leave to
attend church services "fall within the same transaction or
series of transactions at issue in the Seabrook litigation."
Id. at 293 (internal quotation omitted).
The named defendants now move under Fed.R.Civ.P. 12(c) to
dismiss Torres's action, arguing that (1) the claims are barred
by both the settlement of the Seabrook Action and the court's
decision in Monahan; (2) even if the claims are not barred by
res judicata, the complaint should be dismissed for failure to
state a claim under § 1983, for conspiracy, and for medical