The opinion of the court was delivered by: David G. Larimer United States District Judge
This is a civil rights action by an employee of the New York State Department of Corrections ("DOCS"), Daniel Sullivan, against two other DOCS employees, Paul Chappius and David Napoli. Defendants have moved to dismiss the complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiff has not responded to the motion. For the reasons that follow, the motion is granted, and the complaint is dismissed.
Plaintiff commenced this action on April 16, 2003. In one of many oddities, mistakes and defects in this case, jurisdiction--according to the complaint--is premised upon, inter alia, "42 U.S.C. § 2000(e)" (presumably a reference to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e), 29 U.S.C. § 206 (the Equal Pay Act), and 29 U.S.C. § 216 (the Fair Labor Standards Act), none of which, it turns out, have anything at all to do with this case. The jurisdictional statement also cites a nonexistent statute, 29 U.S.C. § 1331.*fn1
The complaint alleges that in 2004, while he was working as a captain at Southport Correctional Facility, plaintiff learned that his immediate supervisor, defendant Paul Chappius, who was married, was having an extramarital affair with plaintiff's then-secretary.*fn2 Plaintiff alleges that he complained to "management" that this affair "was creating a hostile work environment ... ." Complaint ¶ 12. He asserts that his complaints constituted "protected speech under the First Amendment." Id.
In August 2006, upon the retirement of Southport's superintendent Michael McGinnis, Chappius was made the acting superintendent, pending appointment of a permanent replacement for McGinnis. Within days of assuming that position, Chappius unilaterally changed plaintiff's hours from a daytime to a nighttime shift, which plaintiff considered undesirable. Id. ¶¶ 19, 22-24.
Defendant Napoli became the superintendent of Southport in early September 2006. Plaintiff alleges that Napoli initially promised to do "everything in his power" to change plaintiff's hours back to what they had been, but that he failed to do so. Id. ¶ 26. For purposes of the motion to dismiss, it is unnecessary to recite the rest of plaintiff's allegations in detail, but in short, he alleges that his work conditions deteriorated, and that he was subjected to harassment by both Chappius and plaintiff's co-workers.
In March 2007, plaintiff commenced an action against DOCS in this Court ("DOCS action"), based on virtually identical facts as those asserted here. See Sullivan v. DOCS, 07-CV-6133, Dkt. #1 ¶¶ 7-57. On August 31, 2009, District Judge Charles J. Siragusa of this Court granted DOCS's motion to dismiss the complaint in that case for lack of subject matter jurisdiction, based on the doctrine of sovereign immunity under the Eleventh Amendment. See 2009 WL 3189869.*fn3
Judge Siragusa also denied plaintiff's motion to amend the complaint to add Chappius as a defendant in the DOCS action, on the ground that plaintiff's attorney (Christina Agola, who also represents plaintiff in this action) had failed to proffer any explanation, or to show good cause, for her seeking to add Chappius as a defendant some fifteen months after the deadline that the Court had set for motions to join other parties and to amend the pleadings. Id. at *6. Pointing out that the October 11, 2007 deadline had been set in an August 23, 2007 scheduling order, and that plaintiff's motion to amend was not filed until January 12, 2009, Judge Siragusa stated that "because Ms. Agola has failed to proffer good cause for violating the Court's Rule 16(b) scheduling order, her motion to amend is denied." Id.
Perhaps, by the time Judge Siragusa issued that Decision and Order, plaintiff's attorney had some inkling that she might have blundered in suing DOCS rather than the individuals involved, because on April 16, 2009, she filed the complaint in this action, naming Chappius and Napoli as defendants, in their individual capacities.
The complaint here asserts three causes of action. The only substantive federal claim, which is denominated as the second cause of action, is brought under § 1983, based on an alleged violation of plaintiff's right to equal protection. Plaintiff contends that defendants "treated the Plaintiff's complaints of harassment differently from other types of harassment ... ." Id. ¶ 65. He does not explain what he means by "other types of harassment," nor does he identify any instances in which defendants treated such complaints differently. Plaintiff also does not allege that he was treated differently on account of his membership in any constitutionally protected category, such as his race or sex.
Plaintiff's first cause of action asserts a claim under the New York State Human Rights Law ("HRL"), N.Y. Exec. Law § 290 et seq. Plaintiff alleges that defendants retaliated against him for having "complained about a hostile environment at the workplace, i.e. his complaints regarding the illicit affair" between Chappius and plaintiff's secretary. Complaint ¶ 59. The third "cause of action" asserts a claim for punitive damages against defendants "for their deliberate indifference and malice towards Plaintiff," and does not cite any statutory or other legal basis for such a claim. Id. ¶ 70.
I. Plaintiff's Failure to Respond to ...