BERTHA A. JOHNSON, Plaintiff,
NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES COMMUNITY SUPERVISION, LIEUTENANT WOJINSKI, CAPTAIN DALE SCALISE, SERGEANT BROWN, Defendants.
DECISION AND ORDER AND
WILLIAM M. SKRETNY, Chief District Judge.
Plaintiff Bertha A. Johnson commenced this action seeking damages for, inter alia, alleged violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. and state law. Presently before this Court is the motion of Defendants Wojinski, Scalise, and Brown to dismiss the Second Amended Complaint as against them for lack of jurisdiction, on which this Court previously reserved decision, and the Plaintiff's second motion for leave to file a third amended complaint. For the reasons that follow, the Court will grant Defendants' motion, and grant in part and deny in part Plaintiff's motion.
Plaintiff filed her initial complaint pro se and in forma pauperis against the New York State Department of Correctional Services and Community Supervision ("DOCCS") in January 2011. DOCCS moved to dismiss this complaint, (Docket No. 4), following which Plaintiff sought leave to file an amended complaint. (Docket No. 18.) DOCCS opposed Plaintiff's motion, but before the Court ruled, Plaintiff moved to file a supplemental complaint' with additional claims. (Docket Nos. 20, 24-25.) Plaintiff also filed three supplemental exhibits' shortly thereafter. (Docket Nos. 26-28.) In a December 2011 text order, this Court agreed with DOCCS that Plaintiff's "current allegations are confused, " and ordered Plaintiff to file an amended complaint incorporating her various claims and allegations. (Docket No. 30.)
Plaintiff filed what purported to be an amended complaint in January 2012. (Docket No. 32). The Court found this document to be deficient, and again afforded her an opportunity to file a complaint that accurately recited her claims and allegations. (Docket No. 31.) This Second Amended Complaint, which named additional individual defendants, was filed on February 27, 2012. (Docket No. 36.) Following a review by the Court pursuant to 28 U.S.C. § 1915 in light of Plaintiff's in forma pauperis status, (Docket No. 41 ¶ 8), and a motion to dismiss filed by DOCCS, (Docket Nos. 42), only Plaintiff's federal claims of employment discrimination on the basis of race and gender and improper retaliation in violation of Title VII remained viable against DOCCS. (Docket No. 49.) Plaintiff's state law claims against Defendant Wojinski for assault and against Defendants Brown and Scalise for unlawful imprisonment also survived. (Id. at 2-3.)
These individual Defendants then moved to dismiss the Second Amended Complaint as against them based on the immunity provided by New York Correction Law § 24. (Docket No. 53.) Plaintiff opposed the motion and, having retained counsel, sought leave to file a third amended complaint. (Docket No. 61.) This Court denied Plaintiff's motion on the ground that the numerous deficiencies in the proposed third amended complaint would render several causes of action subject to dismissal. (May 1, 2013 Decision and Order at 7, Docket No. 66.) In order to allow the litigation to move meaningfully forward, Plaintiff was permitted to file another motion for leave to file a third amended complaint on or before July 7, 2013. (Id.) Decision on the individual Defendants' motion to dismiss was reserved at that time. (Id. at 9-10.) Plaintiff thereafter timely filed the present motion for leave to amend.
Generally, leave to amend a pleading should be freely given when justice so requires. Fed.R.Civ.P. 15 (a) (2). Nonetheless, it is in the sound discretion of this Court "to deny leave for good reason, including futility, bad faith, undue delay, or undue prejudice to the opposing party." McCarthy v. Dun & Bradstreet Corp. , 482 F.3d 184, 200 (2d Cir. 2007); see Foman v. Davis , 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). An amendment is considered futile if the amended pleading would not survive a motion to dismiss, either pursuant to Rule 12 (b)(6) or on some other basis. Dougherty v. Town of North Hempstead Bd. of Zoning Appeals , 282 F.3d 83, 88 (2d Cir. 2002); McKinney v. Eastman Kodak Co. , 975 F.Supp. 462, 465 (W.D.N.Y. 1997).
This Court has already ruled that granting Plaintiff leave to file another amended complaint is proper to help clarify the issues initially raised pro se and to incorporate additional factual allegations regarding Plaintiff's termination after this action was commenced. (May 1, 2013 Decision and Order at 3, 9-10.) Defendants opposition to the proposed new pleading is limited to the argument raised in the prior motion to dismiss: that Plaintiff's state law claims of assault and unlawful imprisonment are barred from consideration in this Court by N.Y. Correction Law § 24(1). (Defs' Mem of Law in Opp'n at 1-2, Docket No. 69; see Def's Mem of Law in Support of the Motion to Dismiss, 3-4, Docket No. 53.) Defendants argue that amendment with respect to these claims should be denied as futile. (Defs' Mem of Law in Opp'n at 2.)
N.Y. Correction Law § 24(1) provides:
No civil action shall be brought in any court of the state, except by the attorney general on behalf of the state, against any officer or employee of the department, which for purposes of this section shall include members of the state board of parole, in his or her personal capacity, for damages arising out of any act done or the failure to perform any act within the scope of the employment and in the discharge of the duties by such officer or employee.
See Baker v. Coughlin , 77 F.3d 12, 15 (2d Cir. 1996) (this section also prohibits review by a federal court exercising pendent jurisdiction). Section 24 therefore "shields employees of a state correctional facility from being called upon to personally answer a state law claim for damages based on activities that fall within the scope of the statute." Ierardi v. Sisco , 119 F.3d 183, 187 (2d Cir. 1997). Instead, any claim for damages due to a state correctional facility employee's action or inaction must be brought in New York's Court of Claims as a claim against the state. Id . § 24(2).
The jurisdictional limitation of § 24 is broad, and "immunity is not necessarily unavailable simply because the challenged conduct is violative of regulations of the Department of Correctional Services, or otherwise beyond an officer's authority." Ierardi , 119 F.3d at 187. Its application is nonetheless not absolute, and is limited to conduct occurring "within the scope of the employment and in the discharge of the [employee's] duties." N.Y. Correction Law § 24(1); Ierardi , 119 F.3d at 187. Conduct engaged in "for purely personal reasons unrelated to the employer's interests, ... which is a substantial departure from the normal methods of performing ...