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Pamela J. Banker v. County of Livingston

April 6, 2011

PAMELA J. BANKER, PLAINTIFF,
v.
COUNTY OF LIVINGSTON, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Charles J. Siragusa United States District Judge

DECISION AND ORDER

INTRODUCTION

Plaintiff alleges that she was sexually abused by a counselor while undergoing court-ordered alcohol treatment and counseling. The Complaint (Docket No. [#1]) purports to assert tort claims under New York State law and constitutional claims under 42 U.S.C. § 1983. Now before the Court are the following applications: 1) a motion [#8] to dismiss by Livingston County and Livingston County Probation ("the County"); 2) a motion [#10] for judgment on the pleadings by Livingston County Council on Alcohol and Substance Abuse ("LCCASA"); and 3) a cross-motion [#15] by Plaintiff for attorney's fees incurred in responding to Defendants' motions. For the reasons that follow, Defendants' applications are granted and Plaintiff's cross-motion is denied.

BACKGROUND

Unless otherwise noted the following facts are taken from the Complaint and are presumed to be true for purposes of this motion. In 2000, Plaintiff was convicted of DWI, and as part of her sentence of probation, she was required to obtain outpatient treatment and counseling through defendant LCCASA. LCCASA is a non-profit organization which provided alcohol treatment services. Plaintiff was assigned to work with defendant John Hanglow ("Hanglow"), who was a treatment counselor employed by LCCASA. As a condition of her probation, Plaintiff was required to attend counseling sessions at LCCASA for a period of years, ending in 2004. *fn1 See , Complaint ¶ 57 ("Hanglow remained Pamela's treatment counselor until 2004[.]"). During that period, Hanglow repeatedly raped Plaintiff and coerced her into having sex with him by telling her that he had the power to cause her to be sent to prison. Sometime in 2004, *fn2 Hanglow's employment with LCCASA ended, and he became Director of Treatment Court for Livingston County, a position which he held at least through 2008. Complaint ¶ 42. As Director of Treatment Court, Hanglow was an employee of the New York State Office of Court Administration ("OCA"). Id . at ¶ 5. Hanglow was never employed by the County.

In 2007, Plaintiff was again convicted of DWI. As part of her sentence, Plaintiff was again placed on probation and directed to participate in alcohol counseling and Treatment Court. As noted earlier, at this time Hanglow was Director of Treatment Court. Hanglow continued to sexually abuse Plaintiff and to threaten her by telling her that he could have her sent to prison. The last time that Hanglow had sexual contact with Plaintiff was in September 2007. Complaint ¶ 46. After that, Hanglow periodically renewed his threats to have her sent to prison if she told anyone about his misconduct. Id . at ¶ ¶ 47-47-50.

On or about October 23, 2008, Plaintiff's Probation Officer, Colleen Fronk ("Fronk"), conducted a random compliance check and determined that Plaintiff had used alcohol.

Complaint ¶ 51. At that time, Plaintiff told Fronk that Hanglow "had been raping her for years." Complaint ¶ 52. According to the Complaint, October 23, 2008 is the first time that Plaintiff told anyone connected with any of the defendants in this action that Hanglow was abusing her. *fn3

On October 31, 2008, Plaintiff was arrested for violating the terms of her probation, based on Fronk's determination that she had used alcohol. Id . at 51. From this date onward, it does not appear that Plaintiff had any further contact with Hanglow in connection with his position as Director of Treatment Court. See , Complaint ¶ 58 ("Hanglow continued as Pamela's Drug Treatment Coordinator up to the time of her VOP arrest on October 31, 2008."). On or about November 10, 2008, Plaintiff pled guilty to violating her probation. Id . at ¶ 63.

Moreover, in November 2008, a Livingston County Sheriff's Investigator, Kim Moran ("Moran"), interviewed Plaintiff, "specifically for the purpose of gathering information on the allegations made concerning Hanglow's treatment of Pamela." Complaint ¶ 64. Plaintiff further maintains that in November 2008, her boyfriend, Tom Budreau ("Budreau"), told Moran that he had talked with another female probationer in Treatment Court, "Kit," who told him that Hanglow had refused to help her because she would not have sex with him. Id . at ¶ 66. Kit purportedly told Budreau that she had reported Hanglow's behavior to "counselors at LCCASA." Id . The Complaint does not indicate when the alleged incident between Kit and Hanglow occurred, or when she allegedly complained to LCCASA. There is no indication that "Kit" complained to the County.

Plaintiff also alleges that another female probationer, Debbie Mease ("Mease"), complained to unspecified "authorities" that Hanglow had made unwanted sexual advances toward her. Complaint ¶ 68. The Complaint does not indicate when Mease allegedly notified "authorities," *fn4 nor does it indicate that the County was notified. Additionally, the Complaint states, upon information and belief, that Livingston County and Livingston County Probation received "several substantiated allegations of sexual misconduct against Hanglow." Complaint ¶ 62. This last allegation, however, again fails to specify a time frame or to whom the allegations were made.

On January 20, 2009, an investigator with OCA's Inspector General's Office, Elizabeth Candreva ("Candreva"), interviewed Plaintiff "for over two hours" concerning her allegations against Hanglow. Complaint ¶ 69. Subsequently, Hanglow "either was fired or asked to resign or retire involuntarily." Id . at ¶ 74.

On April 7, 2009 Plaintiff was released from jail and restored to probation. Complaint ¶ 70. As a condition of her probation, Plaintiff was required to receive the medication Antabuse, a drug used to treat chronic alcoholism, three times per week. Id . ¶ 72. Plaintiff maintains that in order to receive this medication, defendant Livingston County Probation "required [her] to visit the male area of the jail - unescorted - to receive her mandated medication of Antabuse, invariably subjecting her to cat-calls and explicit vulgarities from the male jail population," which caused her to experience "great anxiety." Id . ¶ 72. Plaintiff's doctor contacted the sentencing judge, and indicated that Plaintiff's "visits to the male area of the jail subject her to rude behavior by the inmates and contributes to a continuation of her traumatic symptoms from past abuse." Id . ¶ 73. The sentencing judge responded by permitting Plaintiff to receive her Antabuse treatments at the office of her primary care physician. Id .

On June 26, 2009, Plaintiff filed a Notice of Claim [#8-2] against Livingston County and Livingston County Probation pursuant to New York General Municipal Law § 50-e. Complaint ¶ 7. The Notice of Claim generally recited the matters described above, except that it did not refer to Plaintiff having to receive Antabuse at the jail.

On December 18, 2009, Plaintiff commenced this action. The Complaint purports to state six causes of action: 1) assault and battery; 2) false imprisonment; 3) negligent hiring, training, and supervision; 4) intentional infliction of emotional distress ("IIED"); 5) negligent infliction of emotional distress ("NIED"); and 6) a claim under 42 U.S.C. ยง 1983 for violation of Plaintiff's rights under the Fourth, Fifth, and Fourteenth Amendments to the United States ...


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