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Henry v. City of New York

March 30, 2007

MARILYN HENRY, PLAINTIFF,
v.
THE CITY OF NEW YORK; RAYMOND W. KELLY, POLICE COMMISSIONER; RAFAEL PINIERO, CHIEF, PERSONNEL BUREAU; GEORGE W. ANDERSON, DEPUTY CHIEF, EXECUTIVE OFFICER, PERSONNEL BUREAU; MICHAEL P. O'NEILL, DEPUTY CHIEF, EMPLOYEE RELATIONS SECTION; CHARLES MICHAEL MARTINEZ, DEPUTY CHIEF SURGEON, MEDICAL DIVISION; JACQUELINE MCCARTHY, RETIRED LIEUTENANT, COUNSELING SERVICES UNIT; DANIEL SWEENEY, SERGEANT, COUNSELING SERVICES UNIT; SUZANNE GIMBLET, DETECTIVE, COUNSELING SERVICES UNIT; VIVIAN MURPHY, DETECTIVE, COUNSELING SERVICES UNIT; EACH BEING SUED INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES AS EMPLOYEES OF THE POLICE DEPARTMENT CITY OF NEW YORK; MARWORTH ALCOHOL AND CHEMICAL DEPENDENCY CENTER A.K.A. MARWORTH AND ITS AGENTS, DEFENDANTS.



The opinion of the court was delivered by: Johnson, Senior District Judge

MEMORANDUM AND ORDER

Plaintiff Marilyn Henry ("Plaintiff"), a police officer in the New York City Police Department ("NYPD"), brings this action pursuant to the Racketeer Influenced and Corrupt Organizations Act ("RICO"), Title VII of the Civil Rights Act of 1964 ("Title VII"), the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 1983 and 1985(3), the New York State and New York City Human Rights Laws and New York common law against the City of New York and nine NYPD officials (collectively "City Defendants"). The NYPD officials named in the complaint are Raymond W. Kelly, Rafael Piniero, George W. Anderson, Michael P. O'Neill, Charles Michael Martinez, Jacqueline McCarthy, Daniel Sweeney, Suzanne Gimblet, and Vivian Murphy. Plaintiff has also brought suit against Marworth Alcohol and Chemical Dependency Center ("Marworth").*fn1

Plaintiff alleges in her complaint that she has been the victim of discrimination because City Defendants regarded Plaintiff as an alcoholic. Moreover, Plaintiff claims that City Defendants knew or should have known that Plaintiff was not an alcoholic, and referred Plaintiff to an inpatient and outpatient treatment center anyway. Plaintiff further claims that Defendant Treatment Centers knew or should have know that she was not an alcoholic, but proceeded to engage in unnecessary medical treatment, duplicative diagnostic testing, miscoding or upcoding of services, bundling and unbundling of services, and forced time in isolation for detoxification. Plaintiff claims that incompetence and negligence are not the causes of her placement in and treatment at rehabilitative services. Rather, Plaintiff alleges that she is a pawn in Defendants' scheme to defraud insurance carriers for their own financial benefit. Specifically, Plaintiff alleges that the only reason City Defendants referred Plaintiff to Defendant Marworth was so that Defendant Marworth could make money and deliver financial kickbacks to members of the NYPD's Counseling Services Unit. Plaintiff further alleges that Defendants' scheme resulted in the deprivation of her rights under the First, Fourth, and Fourteenth Amendments. Defendants now bring this Motion for Judgment on the Pleadings pursuant to Federal Rule of Civil Procedure 12(c).*fn2

STANDARD

When considering a motion to dismiss under Federal Rule of Civil Procedure 12(c), courts are to apply the same standard applicable to a motion under Rule 12(b)(6). See Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir.1994). Under that standard, "a court must accept the allegations contained in the complaint as true, and draw all reasonable inferences in favor of the non-movant." Id. at 150. Courts should not grant dismissal "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). "At the [motion to dismiss] stage, 'the issue is not whether a plaintiff is likely to prevail ultimately, but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleading that a recovery is very remote and unlikely but that is not the test.'" Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir.1998) (quoting Branham v. Meachum, 77 F.3d 626, 628 (2d Cir.1996)); see also Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir.1995).

RES JUDICATA

City Defendants contend that all claims against them should be bared because of res judicata. Res judicata bars a subsequent lawsuit where the defendant can show: (1) an adjudication on the merits in the previous action; (2) that the previous lawsuit involved the plaintiffs, or those in privity with them; and (3) that the claims asserted in the subsequent suit were raised, or might have been raised, in the prior proceeding. See Allen v. McCurry, 449 U.S. 90, 94 (1980); Torres v. City of New York, 154 F. Supp. 2d 814 (S.D.N.Y.2001). Where claims arise from the same "'factual grouping' they are deemed to be part of the same cause of action and a later claim will be barred without regard to whether it is based upon different legal theories or seeks different or additional relief." Davidson v. Capuano, 792 F.2d 275, 278 (2d Cir.1986) (citing Smith v. Russell Sage College, 54 N.Y.2d 185, 192-93 (1981)). Thus, res judicata bars re-litigation of claims actually raised in a prior proceeding as well as those that could have been litigated. See Quartararo v. Catterson, 917 F. Supp. 919, 944 (E.D.N.Y.1996).

City Defendants point to a class action settlement in Latino Officers Association, et al., v. City of New York, et. al., 99 CV 9568 (LAK)(KNF)("the LOA case") to show that Plaintiff's claim here is barred by res judicata. The Stipulation of Settlement was filed in connection with the LOA Case and was so ordered by the court. That document is thus subject to judicial notice. See Blue Tree Hotel Inv. (Can.), Ltd. v. Starwood Hotels & Resorts Worldwide, Inc., 369 F.3d 212, 217 (2d Cir.2004) (stating that courts "may also look to public records, including complaints filed in state court, in deciding a motion to dismiss"); Kramer v. Time Warner, Inc., 937 F.2d 767, 774 (2d Cir.1991) (noting that documents filed with the court are subject to judicial notice, and affirming Rule 12(b)(6) dismissal of securities fraud case where the district court considered documents filed with the Securities and Exchange Commission without expressly taking judicial notice of them); Cowen v. Ernest Codelia, P.C., 98 CV 5548, 2001 WL 856606 *1 (S.D.N.Y. July 30, 2001) (explaining that court may consider public documents on Rule 12(c) motion based on res judicata to determine whether claims are barred by prior litigation).

Based on the materials permissibly considered in a Rule 12(c) motion, Plaintiff's action is foreclosed by the settlement agreement in the LOA Case. Plaintiff admits that she was a member of the class in that case. Further, her claim in that case was that she was incorrectly diagnosed as an alcoholic and forced to attend a Rehabilitation Center in Pennsylvania. Plaintiff specifically stated that:

I have been incorrectly diagnosed as an alcoholic by the New York City Police Department (as a result of this incident) and was forced to attend a Rehabilitation Center in Pennsylvania for 21 days or the threat of suspension.

Eichenholtz Decl. Ex. A. Therefore, Plaintiff's current claim is based on exactly the same set of facts as her claim in the LOA Case. The retaliation claims in her current complaint plainly could have been raised in the prior actions, and res judicata bars her from re-litigating those claims. Because Plaintiff is also barred from asserting claims that could have been raised at that time, the Court finds that all of Plaintiff's current claims are barred by res judicata, with the exception of her RICO claims. It is conceivable that, if there were an enterprise or similar conspiracy, Plaintiff would not know about it at the time of her previous action and therefore could not have brought suit. Accordingly, we consider only Plaintiff's RICO claims as to City Defendants. All other claims against City Defendants are dismissed with prejudice.

A. RICO Claims

To establish a RICO claim, a plaintiff must show: "(1) a violation of the RICO statute, 18 U.S.C. § 1962; (2) an injury to business or property; and (3) that the injury was caused by the violation of Section 1962." Pinnacle Consultants, Ltd. v. Leucadia Nat'l Corp., 101 F.3d 900, 904 (2d Cir.1996) (citing First Nationwide Bank v. Gelt Funding Corp., 27 F.3d 763, 767 (2d Cir.1994)). Section 1962(c), the section relevant here, makes it unlawful:

for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such ...


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