The opinion of the court was delivered by: Kenneth M. Karas, District Judge
Plaintiff, Wilfredo Batista ("Batista"), brings this action pursuant to 42 U.S.C. § 1983. Batista alleges various violations of his constitutional rights, as well as his common law rights under New York State law, arising from his arrest in the City of New York following the issuance of an arrest warrant in the State of Florida for alleged probation violations. Plaintiff, Anna Sanchez ("Sanchez"), Batista's wife, claims loss of consortium as a result of Batista's arrest and subsequent detention.
Before this Court is Defendant City of New York's ("New York City") Motion for Summary Judgment pursuant to Fed. R. Civ. P. 56, and Defendants State of Florida: Department of Corrections and State of Florida: Tampa East Division and Parole's ("Florida Defendants") Motion to Dismiss under Fed. R. Civ. P. 12(b)(6). In opposition to both Motions, Plaintiffs rely on materials outside the Amended Complaint, including letters sent by Plaintiffs to the State of Florida which Plaintiffs claim demonstrate a waiver of the state's sovereign immunity. For the reasons set forth below, the Court will consider both Motions under the summary judgment standard and GRANTS both Motions.
On February 12, 1998, Batista was arrested in Hillsborough County, Florida, on charges of robbery in the second degree and criminal mischief in the first degree. (Aff. In Opp'n ¶ 3 ("Batista's Aff. In Opp'n.").) Batista pled guilty to both charges and was sentenced to a forty-eight month term of probation and was ordered to pay forty dollars each month towards the cost of his probation supervision. (Def. City's Notice of Mot., Ex. B ("City's Notice of Mot.").) As a condition of his guilty plea, Batista was ordered to comply with special conditions of his probation, which included payments to the State of Florida for restitution in the amount of $200, $256 in court costs, $150 to the court improvement fund, $150 for the cost of prosecution, a $50 PD application fee, and the performance of fifty hours of community service. (Affirmation in Opp'n to Def's Mot. for Summ. J., Ex. C ("Pls.' Affirmation in Opp'n").) The exact amount of the payments required by the special conditions of Batista's probation is in dispute. It appears from exhibits attached to the Parties' Motion papers that the State of Florida issued two separate orders of probation both dated July 1, 1998, indicating different payment amounts, (Pls.' Affirmation in Opp'n, Exs. B, C; City's Notice of Mot., Ex. B), one of which bears Batista's signature, (Pls.' Affirmation in Opp'n, Ex. C; Batista Aff. In Opp'n ¶ 7). Batista contends that he was unaware of any monetary obligations imposed as conditions to his Florida probation. (Batista's Aff. In Opp'n ¶ 6.) This dispute is immaterial to the resolution of these Motions.
On July 1, 1998, Batista filed an application with the Florida Department of Corrections' Parole Commission seeking to transfer his probation supervision from Florida to the State of New York, where he planned to take up residence with his mother, Celeste Batista. (City's Notice of Mot., Ex. C.) As a condition of his probation supervision transfer request, Batista agreed to comply with the conditions of supervision as fixed by the State of Florida. (Def. City's Statement of Uncontested Material Facts Pursuant to Local Rule 56.1 ¶¶ 9, 13. ("New York City's 56.1 Stmt.").) He further agreed that failure to comply with those provisions would be deemed a violation of the terms of his probation which could result in his extradition to the State of Florida. (Id.) On October 14, 1998, the City of New York's Department of Probation accepted Batista's probation supervision transfer request, under which Batista was still required to make all payments to which he was subject under the conditions of his Florida probation, with the exception that he did not have to pay for the cost of his probation supervision. (Id. ¶¶ 10-14.)
Before Batista's term of probation was scheduled to expire on June 30, 2001, the Florida Department of Corrections requested a progress report on March 19, 2001 on his compliance with the special conditions of his probation from the City of New York's Department of Probation. (Id. ¶ 15; City's Notice of Mot., Ex. F.) The Florida Department of Corrections' records indicated that Batista had failed to satisfy any of the monetary obligations under the special conditions of his probation. (Id.) On June 7, 2001, the Florida Department of Corrections issued a warrant for Batista's arrest, citing two probation violations. (City's Notice of Mot., Ex. G.) The first violation alleged that Batista failed to pay the cost of his probation supervision and court costs. (Id.) The second violation indicated that because the Florida Department of Corrections failed to locate Batista on three separate occasions by either directly contacting the State of New York or via Interstate Compact with a request for a progress report, Batista's whereabouts were determined to be unknown, and as a result, he was considered an absconder by the Florida Department of Corrections. (Id.)
On June 16, 2004, Detectives from the 33rd Precinct in New York County attempted to execute the arrest warrant at the residence of Celeste Batista, which was Batista's last known address, but Batista was not home. (Am. Compl. ¶ 1.) The next day, Batista surrendered at the 33rd Precinct, and was arrested pursuant to the Florida arrest warrant. (Batista's Aff. In Opp'n ¶ 10.) Batista remained in the custody of the New York City Police Department for nine days. Then, on June 25, 2004, the Circuit Court of Hillsborough County, Florida, issued an order dismissing the Batista warrant. (New York City's 56.1 Stmt. ¶¶ 24-26.) That same day, Batista was released from police custody and all charges against him were dismissed after Anna Sanchez, Batista's wife, paid $905, presumably in satisfaction of the payments required by the Florida sentencing court. (Batista's Aff. in Opp'n ¶ 12.)
Plaintiffs' Complaint contains six claims for relief. First, Batista alleges that his arrest "without probable cause" and subsequent "detainment, harassment and intimidation" caused him "to suffer emotional injuries" in violation of his Eight and Fourteenth Amendment rights as secured by 42 U.S.C. § 1983. (Am. Compl. ¶ 27.) Batista further alleges in the first claim for relief that "Defendants conspired among themselves to deprive [him] of his rights secured by 42 U.S.C. § 1983 . . . and took numerous overt steps in furtherance of such conspiracy." (Id. ¶ 28.) Batista's second claim for relief alleges false arrest and false imprisonment and claims that for "a period of approximately nine days, [Batista] was unlawfully, wrongfully, and unjustifiably held in a New York City jail, under arrest and in uncivilized conditions, and deprived of his liberty, and falsely charged." (Id. ¶ 36.) Batista's third claim for relief is for intentional infliction of emotional distress, and claims that "Defendants engaged in extreme and outrageous conduct intentionally and recklessly causing [him] severe emotional distress," and that he was held "for a period of nine days without proper food and hygienic care." (Id. ¶ 43.) Relatedly, Batista claims that Defendants are also liable for negligent infliction of emotional damages in the fourth claim for relief. (Id. ¶ 50.) Batista's fifth claim for relief is for negligent hiring, training, and retention of employment services, and alleges that Defendants "owed a duty of care to Mr. Batista to prevent the conduct alleged," id. ¶ 53, and were "negligent in screening, hiring, training, disciplining, and retaining" those employees proximately causing Batista's damages, id. ¶ 56. Batista's sixth*fn1 and final claim for relief is a claim under Article I, § 12, of the New York State Constitution, which prohibits unreasonable searches and seizures. Finally, Plaintiff Sanchez brings one claim for a relief under New York State law, alleging loss of consortium as a result of Batista's arrest. (Am. Compl. ¶¶ 31, 41, 57, 51, 58, 65; Pl's Mem. of Law in Opp'n 9.)
On December 11, 2006, the City of New York moved the Court for an order pursuant to Federal Rule of Civil Procedure 56, granting summary judgment to dismiss Plaintiffs' Amended Complaint in its entirety with prejudice. On December 13, 2006, the Florida Defendants moved pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss Plaintiffs' Amended Complaint with prejudice for failure to state a claim upon which relief can be granted. On August 13, 2007, the Court held oral argument.*fn2
1. Converting a Motion to Dismiss to a Motion For Summary Judgment Florida
Defendants argue that the Eleventh Amendment to the U.S. Constitution renders them immune from suit in this Court. Florida Defendants thus move to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). Plaintiffs oppose Florida Defendants' Motion by arguing that Florida Defendants waived their Eleventh Amendment immunity. In support of that claim, Plaintiffs point to correspondence between counsel and Florida Defendants. (Pls.' Affirmation in Opp'n, Exs. L, M.) During oral argument on these Motions, Plaintiffs expressly relied on that correspondence to rebut Florida Defendants claim that it is immune from suit in federal court. (Tr. 25-28, Aug. 13, 2007.) To consider this correspondence, the Court must convert the Motion to a motion for summary judgment, because the correspondence is outside the four corners of the pleadings. See Global Network Commc'ns, Inc. v. City of New York, 458 F.3d 150, 155 (2d Cir. 2006) (explaining that when a court ruling on a motion to dismiss considers matters outside the pleadings, it is required to convert the motion from a Rule 12(b)(6) motion to dismiss into a Rule 56 motion for summary judgment). When the Parties ask the Court to weigh evidence outside of the pleadings and thereby test the merits of the evidence, not the complaint, such action is "more appropriately reserved for the summary judgment procedure, governed by Rule 56, where both parties 'may conduct appropriate discovery and submit the additional supporting material contemplated by' that rule." Id. (quoting Chambers v. Time Warner, Inc., 282 F.3d 147, 154 (2d Cir. 2002)). A court may convert a motion to dismiss into a motion for summary judgment, and thus consider the external exhibits and affidavits, when it is "satisfied that the parties are not taken by surprise or deprived of a reasonable opportunity to contest facts averred outside the pleadings" and the issues involved are "discrete and dispositive." Adipar Ltd. v. PLD Int'l Corp., No. 01 Civ. 0765, 2002 WL 31740622, at *4 (S.D.N.Y. Dec. 4, 2002). When a non-moving party submits its own exhibits and affidavits in its response papers, it cannot claim to be caught by surprise. See Gurary v. Winehouse, 190 F.3d 37, 43 (2d Cir. 1999) ("In this case, it was plaintiff who submitted the affidavit relied upon by the district court and who thus invited Judge Stanton to rely not only on the complaint, but upon the more elaborate explication of plaintiff's grievance contained in his affidavit. He certainly cannot be heard to claim that he was surprised when the district court accepted his invitation. Indeed, the district court arguably would have erred in declining to do so. In consequence, the motions properly were converted." (internal quotation omitted)).
Florida Defendants' Motion will be converted to a motion for summary judgment, because discovery is complete and it was Plaintiffs, the non-movants, who asked the Court to rely on materials outside the pleadings to defeat Florida Defendants' Motion. Under these circumstances, Plaintiffs cannot claim to have been prejudiced or surprised by the application of Fed. R. Civ. P. 56, rather than Fed. R. Civ. P. 12(b)(6). See Kennedy v. Empire Blue Cross & Blue Shield, 989 F.2d 588, 592 (2d Cir. 1993) (holding that conversion was proper, and Plaintiffs could not claim ...