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Davis v. New York City Department of Corrections

United States District Court, E.D. New York

November 22, 2017

KEVIN DAVIS, Plaintiff,
v.
NEW YORK CITY DEPARTMENT OF CORRECTIONS, NEW YORK CITY DEPARTMENT OF INVESTIGATION, CORRECTION OFFICERS BENEVOLENT ASSOCIATION, INC., DINA SIMONS, First Deputy Commissioner, GREGORY KUCZINSKI, Deputy Commissioner of Investigation, HEIDI GROSSMAN, Deputy Commissioner for Legal Matters/General Counsel, BECKY SCOTT-FEASTER, Warden - Commanding Officer of E.M.T.C. Facility, JONELLE SHIVRAJ, Deputy Warden of Security, RAJIN SHIVRAJ, Correction Officer Investigator, MALIA GREATHOUSE, Correction Investigator, and YOMAIRA KELLEY, Correction Officer Investigator, Defendants.

          MEMORANDUM & ORDER

          MARGO K. BRODIE, UNITED STATES DISTRICT JUDGE.

         Plaintiff Kevin Davis, proceeding pro se, filed the above-captioned action on June 23, 2017 against Defendants the New York City Department of Corrections, New York City Department of Investigation, Correction Officers Benevolent Association, Inc., Dina Simons, Gregory Kuczinski, Heidi Grossman, Becky Scott-Feaster, Jonelle Shivraj, Rajin Shivraj, Malia Greathouse and Yomaira Kelley. Plaintiff alleges violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (“ADEA”), and the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”), in connection with the termination of his employment at the New York City Department of Corrections (“DOC”). (Compl., Docket Entry No. 1.) Plaintiff attaches to the Complaint a letter from the Equal Employment Opportunity Commission (“EEOC”) dated June 16, 2017, notifying him of his right to sue in federal court. (Compl. at 28.)[1] Plaintiff's request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 is granted for the purpose of this decision. For the reasons discussed below, the Court dismisses the Complaint. Plaintiff is directed to file an amended complaint within thirty (30) days of the date of this Memorandum and Order.

         I. Background

         The Court assumes the truth of the factual allegations in the Complaint for the purpose of this Memorandum and Order. Plaintiff has post-traumatic stress disorder (“PTSD”). (Compl. at 6.) Plaintiff was employed as a corrections officer with DOC for approximately one year and two months, and previously served in the military. (Id. at 7.) Plaintiff alleges that while at DOC, he was “sexually abused, hazed, and assaulted by correction staff.” (Id. at 17.) DOC staff would “rub up against” Plaintiff, make inappropriate sexual comments and jokes, and “walk by [him] and touch [his] private areas.” (Id. at 24.) In one incident, co-workers approached Plaintiff while he was changing in the locker room, pulled his underwear down and “grabbed” him. (Id.) Plaintiff also alleges that during his employment with DOC, his assigned locker “kept getting defaced, ” and in one instance, other officers wrote “GET OUT BITCH” on his locker. (Id. at 11, 19.) Plaintiff made requests to be reassigned from certain areas of the facility after he was “splashed . . . assaulted [and] . . . repeatedly threatened” by inmates. (Id. at 19.) However, upon making such requests, the supervising “control room Captain” “would laugh and say [to Plaintiff] I didn't receive that memo you're going there anyway go report it like you report everything else.” (Id.) Plaintiff claims that he endured a “toxic work environment, ” (id. at 20), and due to his “refus[al] to get with the program” and “hop on board the corruption train, ” “both the inmates and officers . . . set out to . . . ‘run [him] out of the jail by any means necessary, '” (id. at 24.)

         On October 6, 2016, after Plaintiff returned from military leave and vacation, Deputy Warden of Administration Anastasia Henderson-Blackmon informed Plaintiff that his employment with DOC was being terminated. (Id. at 7.) Plaintiff requested details from various personnel at DOC regarding the basis of his termination, but was not provided any further information. (Id.) Plaintiff alleges that the Department of Labor (“DOL”)[2] told him that the basis for his termination was alleged “sexual abuse” of an inmate and failure to disclose a “domestic incident” that took place while Plaintiff was a student and NYPD Auxiliary Officer at the State University of New York at Oswego (“SUNY Oswego”). (Id. at 11.) Plaintiff denies both allegations. (Id.) Plaintiff asserts that “DOC acted in bad faith without reason justifying the termination, ” that DOC is “conducting illegal and unfair labor practices, ” (id. at 8), and that he was “framed, ” (id. at 15). Plaintiff seeks an order reinstating his employment, and also seeks back-pay, as well as damages for pain and suffering. (Id. at 26.)

         II. Discussion

         a. Standard of Review

         A complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)); see also Pension Ben. Guar. Corp. ex rel. St. Vincent Catholic Med. Ctrs. Ret. Plan v. Morgan Stanley Inv. Mgmt. Inc., 712 F.3d 705, 717-18 (2d Cir. 2013). Although all allegations contained in the complaint are assumed true, this principle is “inapplicable to legal conclusions” or “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Iqbal, 556 U.S. at 678. In reviewing a pro se complaint, the court must be mindful that a plaintiff's pleadings should be held “to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 104-105 (1976)); see Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (noting that even after Twombly, the court “remain[s] obligated to construe a pro se complaint liberally”). Nevertheless, the Court is required to dismiss sua sponte an in forma pauperis action if the Court determines it “(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); see also Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007).

         b. Plaintiff cannot assert claims against the New York City Department of Corrections and Department of Investigation

         As an initial matter, Plaintiff may not assert claims against the New York City Department of Corrections and Department of Investigation, because such claims must be brought against the City of New York. Section 396 of the New York City Charter provides that “[a]ll actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the City of New York and not in that of any agency, except where otherwise provided by law.” N.Y. City Charter, chap. 17 § 396. This provision “has been construed to mean that New York City departments, as distinct from the City itself, lack the capacity to be sued.” Ximines v. George Wingate High Sch., 516 F.3d 156, 159-60 (2d Cir. 2008) (per curiam); see also Gordon v. City of New York, No. 09-CV-3908, 2009 WL 3878241, at *2 (E.D.N.Y. Nov. 18, 2009) (“To the extent plaintiff seeks to sue the New York City Department of Corrections, that claim also fails. As an agency of the City of New York, the New York City Department of Corrections cannot be sued independently.” (first citing Lauro v. Charles, 219 F.3d 202, 205 n.2 (2d Cir. 2000); and then citing Bailey v. N.Y.C. Police Dep't, 910 F.Supp. 116, 117 (E.D.N.Y. 1996); and then citing N.Y.C. Chapter, Ch. 17, § 396)); Artec Constr. and Dev. Corp. v. New York City Dep't of Hous. Pres. and Dev., No. 15-CV-9494, 2017 WL 782911, at *4 (S.D.N.Y. Feb. 27, 2017) (finding that the New York City Department of Investigation is an agency that cannot be sued); Morris v. Katz, No. 11-CV-3556, 2011 WL 3918965, at *5-6 (E.D.N.Y. Sept. 4, 2011) (same).

         c. Title VII, the ADA and the ADEA do not impose liability against individual defendants

         The Complaint names as defendants various individuals who appear to be employed with New York City's Department of Corrections or Department of Investigation. However, Title VII, the ADA and the ADEA do not provide for the liability of individual defendants.[3] Mussallihattillah v. McGinnis, 684 F. App'x 43, 47 (2d Cir. 2017) (holding that the plaintiff's Title VII claims “against the individual defendants fail as a matter of law” (citing Patterson v. Cty. of Oneida, 375 F.3d 206, 221 (2d Cir. 2004))); Cayemittes v. City of N.Y. Dep't of Hous. Pres. and Dev., 641 F. App'x 60, 61-62 (2d Cir. 2016) (“Title VII does not provide for individual liability.”); see also Guerra v. Jones, 421 F. App'x 15, 17 (2d Cir. 2011) (holding that there is no individual liability under the ADEA); see also Spiegel v. Schulmann, 604 F.3d 72, 79-80 (2d Cir. 2010) (holding that the retaliation provision of the ADA does not provide for individual liability).[4] Therefore, Plaintiff fails to allege claims against Defendants Simons, Kuczinski, Grossman, Scott-Feaster, Jonelle Shivraj, Rajin Shivraj, Greathouse and Kelley.

         d. Plaintiff fails to state a claim under Title VII

         Liberally construing Plaintiff's Complaint, the Court understands Plaintiff to be asserting claims under Title VII for discrimination, hostile work environment and retaliation.[5]See Wiley v. Kirkpatrick, 801 F.3d 51, 62 (2d Cir. 2015) (holding that courts must liberally construe papers submitted by pro se litigants “to make the strongest arguments they ...


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