The opinion of the court was delivered by: John Gleeson, United States District Judge
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Moses Walker brings this action pursuant to 42 U.S.C. §§ 1983, 1985 and 1988, alleging constitutional due process and equal protection violations and a First Amendment retaliation claim. Walker also alleges a claim for conspiracy under § 1983*fn1 and violations of New York state law. This action arises out of the New York State Department of Health's ("DOH" or the "Department") denial of his employment eligibility application to a nursing home pursuant to N.Y. Exec. Law § 845-b based on his prior convictions of murder and robbery and a lack of demonstrated rehabilitation. Defendant Richard F. Daines is sued in his individual and official capacities for alleged actions taken as DOH Commissioner. Wendy E. Saunders is sued in her individual and official capacities for alleged actions taken as DOH Chief of Staff. Walker is seeking compensatory and punitive damages as well as injunctive relief, a declaratory judgment and attorney's fees.
Defendants move to dismiss the Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(1), (6) & (7) for lack of subject matter jurisdiction, failure to state a claim upon which relief may be granted and failure to join a party under Rule 19. For the reasons stated below the motion is granted.
The following facts are drawn from Walker's amended complaint, filed March 4, 2009, and documents incorporated by reference in that complaint, and are assumed to be true for the purposes of this motion.
A. The Relevant Statutory and Regulatory Framework of Criminal History Records Checks
Under New York law, applicants for employment involving direct patient care in a nursing home are required to submit to criminal background checks, including fingerprinting. N.Y. Pub. Health Law §§ 2899, 2899-a; N.Y. Exec. Law § 845-b. The Criminal History Records Check Legal Review Unit ("CHRC Unit") is the administration unit within the DOH tasked with fulfilling that statutory obligation. N.Y. Pub. Health Law § 2899-a(4).
A nursing home requesting a criminal history records check must fill out a DOH form on which, among other things, an authorized representative certifies in a sworn statement that the person for whom criminal history information is requested is a "subject individual," meaning "a person for whom a provider is authorized to request a check of criminal history information" pursuant to Exec. Law § 845-b. N.Y. Exec. Law § 845-b(3)(b)(i); N.Y. Comp. Codes R. & Regs. tit. 10, §§ 402.3(l), 402.6(b). Also on this form, the provider certifies that the specific duties of the position the subject individual is applying for qualify the provider to request the criminal history information check. N.Y. Exec. Law § 845-b(3)(b)(ii). Together with the DOH form, the prospective employee's personal information and fingerprints are submitted to the Division of Criminal Justice Services ("DCJS") and Federal Bureau of Investigations ("FBI"). N.Y. Exec. Law § 845-b(4); N.Y. Comp. Codes R. & Regs. tit. 10, § 402.6. While the results of the criminal history records check are pending a provider may temporarily approve a prospective employee. N.Y. Comp. Codes R. & Regs. tit. 10, § 402.6(d).
After the DCJS and FBI complete the records check, the DOH reviews the criminal history information. N.Y. Exec. Law § 845-b(5); N.Y. Comp. Codes R. & Regs. tit. 10, § 402.7. Persons designated by the provider to review criminal history information and any other party to whom such criminal history information is disclosed are required to keep criminal history information strictly confidential and not available for public inspection. N.Y. Exec. Law § 845-b(7); N.Y. Comp. Codes R. & Regs. tit. 10, § 402.7(d). If the criminal history information of a prospective employee reveals any class A felony, the DOH is required to deny or disapprove that person's application unless the DOH "determines, in is discretion, that approval of the application or . employment will not in any way jeopardize the health, safety or welfare of the beneficiaries of such services." N.Y. Exec. Law § 845-b(5)(a); N.Y. Comp. Codes R. & Regs. tit. 10, § 402.7(a)(2). As part of its discretionary determination and prior to making a final decision, the DOH must afford the prospective employee the opportunity to explain in writing why the application should not be denied. N.Y. Exec. Law § 845-b(5)(d); N.Y. Comp. Codes R. & Regs. tit. 10, § 402.7(b). In the meantime, the DOH is required to provide the nursing home and prospective employee, in writing, with a summary of the criminal history information and notification of proposed disapproval of eligibility for employment. N.Y. Exec. Law § 845-b(5)(f). At this stage -- and until receipt of a final determination of eligibility for employment from the DOH -- the provider is not permitted to allow the prospective employee to provide direct care or supervision to patients, residents or clients. N.Y. Exec. Law § 845-b(5)(f); N.Y. Comp. Codes R. & Regs. tit. 10, § 402.7(a)(2)(i).
In making its final determination of employment eligibility of an individual with one or more criminal convictions, the DOH must consider the factors set forth in N.Y. Corr. Law § 753(1).*fn2 If, after considering these factors, the DOH determines that the employment application must be denied, it is required to notify the nursing home and to provide it with a summary of that information. N.Y. Exec. Law § 845-b(5)(g). The prospective employee must also be notified of the reasons for the denial. N.Y. Exec. Law § 845-b(5)(h). If the DOH determines that the prospective employee's employment will not in any way jeopardize the health, safety or welfare of patients, residents or clients of the providers, and therefore neither issues a disapproval of eligibility of employment nor directs the provider to issue a disapproval, the provider may act on the application in its own discretion. N.Y. Comp. Codes R. & Regs. tit. 10, § 402.7(a)(2)(ii).
After conducting a criminal history background check and making its determination, the DOH is required to create and maintain a permanent record for the individual. N.Y. Pub. Health Law § 2899-a(7) ("The department shall create a permanent record, update the information in accordance with section eight hundred forty-five-b of the executive law and make such records available to providers pursuant to this section."); N.Y. Pub. Health Law § 2899(4) ("'Permanent record' shall mean a permanent, written record of a determination and the criminal history information maintained by the department."). In the event that a prospective employee already has a permanent record on file, that information will be immediately made available to a provider who intends to hire the prospective employee. N.Y. Pub. Health Law § 2899-a(8).
B. Walker's Employment Eligibility Application
On September 13, 2007, Walker was hired by Bridge View Nursing Home ("Bridge View") as a Staffing Coordinator for an annual salary of $40,000. By DOH CHRC form 103, dated Sept. 24, 2007, Bridge View submitted Walker's fingerprints and identifying information to the DOH for a criminal history records check pursuant to N.Y. Exec. Law § 845-(3)(b).*fn3 The Administrative Assistant for Bridge View, Loreanther Williams, signed the form, certifying that "the subject individual . will provide direct care or supervision to individuals receiving care and/or services and is a subject individual concerning whom a criminal history check is required by law."*fn4 Walker's Form 103.
By Letter of Pending Denial, dated October 24, 2007, the CHRC Unit notified Walker that a review of his criminal history records might disqualify him from employment and that Bridge View had been advised to revoke "any temporary work approval in a position involving direct care or supervision to patients, residents or clients." Pl. Decl., Ex. B. Referencing his 1979 felony convictions for second degree murder and second degree robbery, based on conduct that occurred when he was 16 years old, the letter advised Walker of the opportunity to explain in writing, within 30 days, why his eligibility for employment should not be denied. The letter noted that his response should specifically address his rehabilitation and good conduct. It further indicated that after review of the written submission, the DOH would issue a determination to Bridge View. Finally, the letter stated that if a response from Walker was not received within 30 days, DOH would advise Bridge View that Walker's eligibility for employment must be denied.
The CHRC Unit also sent a Pending Denial Letter, dated October 24, 2007, to Bridge View, advising it of the Unit's "intent to deny [Walker's] eligibility for employment." Pl. Decl., Ex. C. The letter indicated that the DOH was affording Walker the opportunity to explain in writing why his eligibility for employment should not be denied and invited Bridge View to "supplement the support for [Walker's] response." Id. Finally, the letter noted that "[a]ny temporary approval in a position which involves direct care or supervision to provider's patients, residents or clients must be revoked promptly. You will be notified by DOH if we decide not to deny eligibility for employment, or you will be sent a Denial Notification." Id. Walker, who falsely denied that he had a criminal record when he applied for the position at Bridge View, was then advised by his supervisor to resign from the position, which he did.
In a timely response dated November 16, 2007, and mailed via next-day service on November 19, 2007, Walker addressed why he should be allowed to maintain his employment. His letter noted: (1) he had not had any contact with law enforcement nor been involved in any criminal activity since his release from incarceration in 1993; (2) he had been employed within the health care industry since 1994 at various hospitals and nursing homes; (3) he had received achievement awards and letters of recommendation from directors and supervisors at those facilities, noting his professionalism and compassion for the elderly; and (4) other evidence of rehabilitation, including his having earned his G.E.D. as well as Associates and Bachelor of Science Degrees in Business Administration, completed a two-year Paralegal Studies program, a word processing program and 3200 hours of Optical Technological vocational training, and participated in various therapeutic courses such as the Violent Behavior Awareness and Community Preparation programs. Walker noted that he was granted full discharge from probationary supervision and was released from the Division of Parole's monitoring as a result of his rehabilitation. He requested that in light of his rehabilitation and good conduct he be allowed to continue his employment at Bridge View. Id., Ex. D.
In a Letter of Final Denial dated November 26, 2007, the CHRC Unit denied Walker's application for employment at Bridge View. It explained that Executive Law § 845-b(5)(a) required the DOH to deny employment applications of individuals whose criminal history information revealed convictions for certain specified serious crimes unless DOH determined, in its discretion, that the employment would "not in any way jeopardize the health, safety or welfare of the beneficiaries of such services." Id., Ex. E. The letter noted that the reasons for denying Walker's employment application were (1) the seriousness of his offense and (2) the unreasonable risk to the safety and welfare of the covered provider's patients, residents or clients. It also indicated that the CHRC Unit had not received and therefore had not considered any response from Walker. Declaration of Kathryn E. Leone in Support of Defendants' Motion to Dismiss ("Leone Decl."), Ex. B. at 4. As a result of the final denial determination, Walker phoned the CHRC Unit numerous times to seek assistance.
C. The Article 78 Proceeding
On February 20, 2008, Walker brought an Article 78 proceeding in New York Supreme Court, Queens County, challenging the DOH's decision to deny his application for employment at Bridge View. On July 11, 2008, the court ruled in favor of Walker, vacating the DOH's determination and remitting it for reconsideration. The court found that the CHRC's denial of Walker's employment application was arbitrary, capricious and constituted an abuse of discretion because it was made solely on the basis of Walker's criminal conviction record and lacked an analysis of the requisite statutory factors under N.Y. Corr. Law § 753. Pl. Decl., Ex. I at 8.
On July 25, 2008, Walker moved to modify/expand the state court judgment to include money damages for lost wages and back salary. The state court denied that motion on December 5, 2008 and denied Walker's reargument motion on March 13, 2009. On January 16, 2009, Walker moved for permission to appeal the December 5, 2008 order denying money damages in both the Supreme Court, Queens County and the Appellate Division, Second Department. See Matter of Walker v. New York State Dep't of Health CHRC Legal Review Unit, Index No. 2009-00569. Both the Appellate Division and the Supreme Court, Queens County denied Walker's motion.
D. The CHRC Unit's Reconsideration of Walker's Application
In letters dated August 1 & 13, 2008, the CHRC Unit informed Walker that it had reconsidered its decision disapproving his application for employment by Bridge View and concluded that it was ultimately "without jurisdiction" to make a determination with respect to his application because he was not an "employee" as defined by Public Health Law § 2899(3).*fn5
Id., Ex. J. The letter explained that the initial denial of his application was based on Bridge View's certification that Walker's position involved direct patient care or supervision of patients or residents. However, on reconsideration of his application, the DOH reviewed the job description provided by Bridge View and determined that Walker could not be deemed an "employee" because the position for which he was hired did not, in fact, involve direct patient care or supervision to patients or residents.
In letters dated August 11 and 12, 2008, to Daines and Saunders, Walker requested their assistance and attached letters he wrote to the CHRC Unit in which he stated that he considered the DOH's August 1, 2008 letter retaliation against him for bringing the Article 78 proceeding and requested reinstatement. Id., Ex. O & P. Walker received no response.
A record of Walker's criminal history check remains in the DOH system. It accurately indicates that he was convicted of a class A felony. Id., Ex. M.
On November 11, 2008, Walker filed the complaint in this action pursuant to 42 U.S.C. §§ 1983, 1985 and 1988, claiming that defendants violated his due process and equal protection rights under the Fourteenth Amendment and retaliated against him in violation of the First Amendment for bringing the Article 78 proceeding. Walker seeks $8 million in compensatory damages, $2 million in punitive damages, and attorney's fees under 42 U.S.C. § 1988. Walker also requests a declaratory judgment that (1) the defendants' actions violated his rights under both the New York and United States Constitutions, and (2) orders defendants to have Walker reinstated to his position as Staffing ...