Opinion
22-CV-2593 (PAE) (RWL)
11-04-2022
VICKY WARE BEY, Plaintiff. v. ERIC ADAMS, THE CITY OF NEW YORK, LOUIS MOLINA, MELANIE WHINNERY, NEW YORK CITY EMPLOYMENT RETIREMENT SYSTEM, JOHN DOE 1-10,000, AND JANE DOE 1-10,000 Defendants.
REPORT AND RECOMMENDATION TO HON. PAUL A. ENGELMAYER: MOTION TO DISMISS
ROBERT W. LEHRBURGER, UNITED STATES MAGISTRATE JUDGE
Plaintiff Vicky Ware Bey (“Plaintiff”), proceeding pro se, is a former correction officer employed by defendant New York City Department of Correction (“DOC”). Plaintiff alleges that Defendants and thousands of unidentified individuals engaged in an orchestrated conspiracy against her that included, among other activities, stalking, surveillance, human trafficking, and involuntary servitude, all in retaliation for her complaint to DOC of sexual harassment by another correction officer. Plaintiff previously asserted the same claims in a complaint in federal court, which was dismissed in its entirety as “delusional” and for failure to state a claim. In her current Complaint, Plaintiff adds claims for failure to receive hazard pay; negligent hiring, training, and retention; and wrongful death of her father. Plaintiff also claims that she was deprived of her full retirement pension benefits, although that same claim is the subject of an earlier-filed, currently pending state court proceeding.
Defendants move to dismiss the Complaint on four grounds: (1) collateral estoppel based on the previous dismissal of Plaintiff's claims in federal court; (2) the rule against claim splitting based on Plaintiff's pending action in state court; (3) untimeliness; and (4) failure to state a plausible claim. While the Court does not agree with Defendants' analysis in all respects, the Complaint should be DISMISSED in its entirety for the reasons set forth below.
The motion to dismiss was referred to me for report and recommendation by order dated June 28, 2022 (Dkt. 52).
The Court accepts as true all well-pled allegations of the Complaint and draws all reasonable inferences in favor of Plaintiff, the non-moving party. See Lotes Co. v. Hon Hai Precision Industry Co., 753 F.3d 395, 403 (2d Cir. 2014). The Court also considers documents incorporated into the Complaint by reference as well as public records. See Kleinman v. Elan Corp., 706 F.3d 145, 152 (2d Cir. 2013). As Plaintiff is pro se, the Court construes her Complaint liberally. See Sykes v. Bank of America, 723 F.3d 399, 403 (2d Cir. 2013).
The 64-page Complaint largely progresses chronologically. For clarity, however, the Court groups together allegations relevant to particular claims.
A. Allegations Of Conspiracy, Stalking, Gender/Sex Discrimination, Hostile Work Environment, And Retaliation
Plaintiff, who self-identifies as an “indigenous Moorish American,” was hired b DOC as a correction officer in 1998. (Compl. at 14.) Ten years later, Aaron Scarlett, with whom Plaintiff had a relationship, was also hired as a correction officer. Scarlett “feared that [Plaintiff] would expose his past deeds,” and in 2009 began to sexually harass Plaintiff by spreading rumors about her at work to discredit her and to draw unwanted attention of male officers. (Id. at 16.) In May 2013, Plaintiff's schedule changed such that she would see Scarlett on a daily basis on the bus that dropped employees off at their work destination. Scarlett then “intensified” his behavior toward Plaintiff, creating a hostile work environment and causing co-workers to treat her disparately “because of the sexual nature of his harassment.” This behavior included “intentionally draw[ing] unwanted attention of other male Officers toward” Plaintiff and “yell[ing] to other male officers” to look at her in either the middle or back of the bus where she was sitting. (Id. at 17-18.)
“Compl.” refers to the Complaint (Dkt. 2 at ECF 3-64). The Complaint does not contain paragraph or page numbers. Accordingly, citations to the Complaint herein are to ECF page numbers. Where a single citation follows multiple sentences, the citation supports each of those preceding sentences.
On December 12, 2014, Plaintiff complained to DOC Commissioner Joseph Ponte about Scarlett's alleged sexual harassment. (Id. at 19.) Immediately after she complained, Plaintiff was stalked in retaliation. As part of this “campaign,” unknown individuals would park in front of her house and take pictures and “scope out her residence.” Persons, including Scarlett, drove around her house and followed her when she drove to and from work. Plaintiff found footprints in the snow around her house and found one of her tires slashed in the employee parking lot at Rikers Island. (Id. at 19-20.)
On one occasion, a DOC employee was riding the bus with Plaintiff and began laughing and unzipping his pants; on another occasion, when Plaintiff got on the bus, the bus driver called over the radio that “the package is on the bus,” after which Scarlett got on and sat near her. On other occasions, persons including Scarlett tailgated her and chased her at high speed on her way home. (Id. at 20-21.) Although Plaintiff complained to the Warden's Office at the facility where she was assigned, nothing was done. (Id. at 22.) The stalking continued, with vehicles stationed in front of and circling Plaintiff's house. (Id. at 23.)
In April 2015, Plaintiff spoke to her union president about the alleged stalking. Upon returning home, Plaintiff found a man standing in the street in front of her home showing a parked motorist an unidentified “false accusatory statement” with Plaintiff's picture on it. The following month, Plaintiff complained to the New York City Human Rights Commission, but nothing was done. On the same day, she complained about the stalking to the DOC's Equal Employment Opportunity Office but was informed that her complaint was being handled by the Civil Rights Commission. (Id. at 24-25.)
The retaliation “in the form of ‘Organized Stalking'” nevertheless continued. (Id. at 25.) At an unspecified time, Plaintiff's life was threatened when, traveling to relatives, she passed a small road sign reading “You shall live, for now.” (Id. at 28.) In July 2017, Defendants “and their criminal accomplices” intentionally backed into her vehicle. (Id. at 29.) On November 27, 2019, Plaintiff was traveling back from visiting her father in his nursing home, when “one of the Defendants criminal accomplices made death threats against her father on the highway by taunting her with a blue hurst [sic].” On December 10, 2019, Plaintiff's father was assaulted in his nursing home and died an hour later. (Id. at 34.)
Plaintiff describes the various stages of the alleged “crime against humanity and its terroristic acts” committed in retaliation for Plaintiff's objecting to being sexually harassed. The stages begin with “Initial Covert stalking” and continue with “Character Assassination” and “Isolation” achieved through libel, slander, and defamation; “Recruitment;” “Stalking increases and becomes more organized;” “Victim is further discredited”; “invasion occurs” through criminal trespassing; “Illegal and Unlawful Electronic and Video Surveillance Abuse”; “Sensitization and Street Theater”; “Infiltration”; and “Social Engineering”; “Pre Meditated Murder”; “Sex Trafficking”; “Directed Energy Weapons”; “Ghosting”; continuous “Sabotage”; “Death Threats”; and, finally, “Acts of Terrorism.” (Id. at 34-43.)
B. Allegations Of Discrimination And Retaliation Based On Disability
Plaintiff alleges various work-related injuries, including a laceration on her right hand from an inmate in 2001 and injuries to her right arm, shoulder, and spine by another inmate in 2010. She applied for but was denied “disability retirement.” In May 2013, Plaintiff sustained an injury to her spine, left leg, and left knee from an inmate incident involving use of force. (Id. at 15.)
In December 2015, Plaintiff submitted an Unusual Incident Report, apparently to her supervisor, detailing the work-related retaliation she was allegedly experiencing in the form of criminal harassment, home invasions, and coordinated stalking. (Id. at 25-26.) In response to that complaint, Plaintiff was ordered by her deputy warden to report to DOC's Health Management Division, after which she was placed on sick leave for “falsified psychological reasons.” Defendants “made it impossible” for Plaintiff to return to work “by utilizing their knowledge” that she already had “performance of duty injuries” and demanding that she produce medical documentation stating she was able to work in full capacity as a correction officer. According to Plaintiff, Defendants' actions were “constructive discharge” and an attempt to “discredit her to hide the crimes being committed against her and some of her family members.” (Id. at 26-27.) Defendants' constructive discharge of Plaintiff was “finalized” as of January 29, 2017. (Id. at 28.)
C. Allegations Of Failure To Receive Proper Pay And Retirement Benefits
Plaintiff alleges that Defendants breached various duties and laws by paying her diminished pension benefits. A customer service representative of the New York City Employees Retirement Systems (“NYCERS”) threatened Plaintiff with further diminishment of pension funds “to deter her from selecting the 100% Joint and Survivorship Option” on her pension forms. (Id. at 30-34.) Plaintiff also alleges in conclusory fashion that the Defendants discriminated against her by failing to pay “hazard pay” when assigned to work in the Central Punitive Segregation Unit. (Id. at 48 (Eighth Claim).)
D. Plaintiff's Lawsuit In The Eastern District Of New York
On June 15, 2017, Plaintiff filed an Amended Complaint in the Eastern District of New York against DOC, former DOC Commissioner Ponte, Scarlett, New York City, and thousands of John and Jane Does (the “Eastern District Action”). (Karseboom Decl., Ex. B.) In that complaint, Plaintiff alleged a wide-ranging conspiracy against her in DOC that violated a host of federal statutes, including, among others, sex/gender discrimination and hostile work environment in violation of Title VII of the Civil Rights Act; disability discrimination in violation of the Americans with Disabilities Act (ADA); and conspiracy and stalking in violation of 42 U.S.C. § 1983, the Racketeer Influenced and Corrupt Organizations Act (RICO) and other federal criminal statutes. The facts are the same as those presented in this action, with the exception of (i) those contained in the state court action (described below) and (ii) a few others that are implausible and time-barred (described in Section F below).
“Karseboom Decl.” refers to the Declaration of Kimberly R. Karseboom, filed June 28, 2022 (Dkt. 50). Consistent with the legal standards set forth below, the Court may consider and take judicial notice of the exhibits attached to the Karseboom Declaration as they are judicial documents and other public records.
The defendants in the Eastern District Action moved to dismiss the complaint, and the Honorable Brian M. Cogan granted the motion in its entirety by decision dated September 13, 2017. Bey v. Ponte, No. 17-CV-3476, 2017 WL 4075177 (E.D.N.Y. Sept. 13, 2017). Judge Cogan stated that “a pro se complaint that is delusional is, by definition, not plausible.” Id. at *3. Judge Cogan went on to rule that “[t]he conspiracy that plaintiff has alleged is so far-out, fanciful, and delusional that there is no plausible claim stated.” Id. at *4. Plaintiff appealed, and on July 17, 2018, the Second Circuit denied and dismissed the appeal because “it lacks an arguable basis in law or fact.” Bey v. Ponte, No. 17-3373, 2018 WL 5262563 (2d Cir. June 7, 2018), cert. denied, ___U.S.___, 139 S.Ct. 1634 (2019), petition for rehearing denied, ___ U.S.___, 140 S.Ct. 13 (2019).
E. Plaintiff's State Court Action
On March 19, 2019, Plaintiff filed a complaint in New York County Supreme Court against defendants including NYCERS, its Executive Director Melanie Whinnery, DOC, its then acting Commissioner Cynthia Brann, and New York City (the “State Court Action”). (Karseboom Decl. Ex. C.) On or about August 14, 2019, the matter was moved to Kings County Supreme Court.
The facts in the State Court Action focus on Plaintiff's allegedly not having received full pension benefits and are the same as the allegations against NYCERS and Whinnery in the instant action. The State Court Action is currently pending in Kings County Supreme Court where Plaintiff continued to file motion after motion, and Judge Weston barred Plaintiff from filing any further motions without Court approval. (Karseboom Decl. Ex. G.) Plaintiff attempted to remove the State Court Action to federal court in this District. The District Court denied removal as procedurally improper, both because only a defendant may remove an action to federal court and because removal from Kings County would only be proper in the Eastern District of New York, not the Southern District. Bey v. Brann, No. 22-CV-2400, 2022 WL 1450734, at *1 (S.D.N.Y. Apr. 4, 2022), reconsideration denied, 2022 WL 1063015 (S.D.N.Y. April 5, 2022). The action therefore was remanded back to state court.
F. Allegations Of The Instant Complaint Not Contained In Either The Eastern District Or State Court Actions
The allegations of the instant Complaint are virtually identical to those asserted in the Eastern District Action and State Court Action. Two allegations post-date filing of those actions and therefore do not appear in either of their complaints: that on November 27, 2019, Plaintiff saw a blue “hurst [sic]” on the highway that she considered a death threat toward her father; and that on December 10, 2019, Plaintiff's father died after being assaulted in his nursing home. (See Compl. at 34.) In addition, Plaintiff's claim for hazard pay while assigned to the Central Punitive Segregation Unit is not in the other complaints. (See id. at 48.)
The Instant Action
A. The Complaint
Plaintiff commenced this action on March 29, 2022, more than four years after dismissal of her claims in the Eastern District Action and more than one year after having filed her State Court Action. As with the Eastern District Action, the claims asserted here are premised on the same wide-ranging DOC conspiracy and similarly assert violations of numerous laws, including: (1) violation of the Title VII Civil Rights Act for age/gender/national origin discrimination and sexual harassment; (2) disability discrimination in violation of the Americans with Disabilities Act (ADA); (3) a “conspiracy against rights” in violation of 18 U.S.C. § 241, 18 U.S.C. § 2511 (interception and disclosure of communications); and 42 U.S.C. § 1983 (4) deprivation of rights under color of law in violation of 18 U.S.C. § 242; (5) intentional egregious acts in violation of 42 U.S.C. § 1983, various New York State penal codes, and 34 U.S.C. § 12291 (“technological abuse” in stalking or otherwise); (6) conspiracy and extortion in violation of the RICO act; (7) human trafficking and involuntary servitude in violation of 18 U.S.C. §§ 1584(a) and 1589, and domestic terrorism in violation of 18 U.S.C. § 2331; (8) denial of hazard pay; (9) negligent hiring, training, and retention; (10) “committing a multitude of crimes”; and finally (11) premeditated murder and hate crime.(Compl. at 44-49.) Plaintiff seeks damages in the amount of $565 million and injunctive relief prohibiting Defendants and their co-conspirators from committing crimes against the Plaintiff, her family members, and persons closely associated with her. (Id. at 63.)
The Preliminary Statement portion of the Complaint alludes to a variety of other irrelevant constitutional provisions, statutes, and international conventions, including, for example, the Eighth Amendment bar on cruel and inhuman punishment, the Tenth Amendment reservation of State powers, and the “International Covenant Against Torture And Inhuman Or Degrading Treatment Or Punishment.” The assertion of these provisions are so implausible that they do not merit any further mention. (See Compl. at 8.)
On April 8, 2022, the Court sua sponte dismissed DOC as a defendant (because an agency of the City of New York is not an entity that can be sued), declined to issue an order under Valentin v. Dinkins, 121 F.3d 72, 76 (2d Cir. 1997) for the John and Jane Doe Defendants (because the Complaint alleges no direct involvement by or means of identifying any such defendant), and added the City of New York as a party in place of DOC.(Dkt. 6.) The current Defendants are thus the City of New York, Mayor Eric Adams, Louis Molina as Commissioner of DOC, NYCERS, Melanie Whinnery, the Executive Director of NYCERS, and the unidentified Doe Defendants.
The Complaint also purported to bring the action not only on behalf of Plaintiff but also thousands of John and Jane Does. The Court dismissed any claims asserted on behalf of anyone other than Plaintiff because, as a nonlawyer, she can represent only her interests. (Dkt. 6 at 2.)
B. Plaintiff's Repeated Frivolous Motions And Violations Of Court Orders
Throughout the case Plaintiff has repeatedly filed irrelevant and frivolous motions, proposed orders, letters, and pleadings in violation of the Court's orders and despite warnings that violation of those orders could result in sanctions, including dismissal of the case with prejudice.
On April 11 and 13, 2022, Plaintiff filed motions to “restore the caption” to include the Doe Plaintiffs previously dismissed by the Court, to grant Plaintiff interim monetary relief in the amount of $20 million, and for discovery. (Dkts. 16, 18.) On April 14, 2022, the Court denied without prejudice Plaintiff's motion for discovery as premature as Defendants had not yet appeared and no conference had taken place as required by Federal Rule of Civil Procedure 26(f). (Dkt. 24.) On April 21, 2022, the Court denied Plaintiff's motions to “restore the caption” and for interim monetary relief. (Dkt. 31.)
Counsel for Defendants appeared on April 21, 2022 and requested an extension of time to respond to the Complaint, which the Court granted over Plaintiff's objection on April 27, 2022. (Dkts. 32-35.) Over the next two days, Plaintiff filed another motion to “restore the caption,” a proposed order granting provisional monetary relief, and a proposed restraining order against Defendants' criminal conduct. (Dkt. 37-40.)
On April 29, 2022, the Court denied the second motion to “restore the caption.” The Court directed Plaintiff to “refrain from filing repetitive requests for the same relief.” (Dkt. 41.) On May 2, 2022, Plaintiff filed a motion for a “writ of execution” against the City of New York. (Dkt. 42.) On May 3, 2022, the Court denied Plaintiff's application for a writ of execution as well as her applications for interim monetary relief and a restraining order. As the Court explained, none of those applications were procedurally proper and would be relevant only at the end of the case if Plaintiff were successful. The Court ordered Plaintiff not to continue to file irrelevant documents. (Dkt. 43.)
On May 13, 2022, Plaintiff moved to vacate the Court's order previously granting Defendants' motion to extend their time to answer the Complaint. (Dkt. 44.) The Court denied that motion, stating that Plaintiff had not raised any issue of fact or law that had been overlooked by the Court, or that is new, or that otherwise warranted vacatur or reconsideration. (Dkt. 45.)
On June 28, 2022, Defendants filed the instant motion to dismiss. (Dkt. 47-51.) The next day, Plaintiff filed a motion for discovery, another motion for provisional monetary and injunctive relief, and motion for “entry of judgment as a matter of law or for a new trial.” (Dkt. 53-55, 57-58.) On June 30, 2022, the Court issued three orders. One denied Plaintiff's motion for discovery as premature and stating that the Court would stay discovery pending determination of the motion to dismiss. (Dkt. 59.) The second order denied without prejudice Plaintiff's motion for judgment as a matter of law as premature. (Dkt. 60.) The third order set August 1, 2022 as the date by which Plaintiff had to file her opposition to the motion to dismiss, and August 15, 2022 as the date for Defendants' reply. (Dkt. 61.)
Plaintiff then filed another application for judgment as a matter of law and a restraining order. (Dkt. 62-63.) And on July 6, 2022, notwithstanding the Court's statement that discovery would be stayed pending the motion to dismiss, Plaintiff filed affidavits of service of four subpoenas on Defendants. (Dkt. 66-69.) Plaintiff also filed a notice of entry of “Provisional Interstate and International Restraining Affidavit/Order.” Dkt. 70.)
In an effort to forestall further frivolous and vexatious filings, the Court issued an order on July 7, 2022, that stayed all discovery pending determination of Defendants' motion to dismiss and admonishing that the only documents “to be filed by Plaintiff at the present time are Plaintiff's opposition to Defendants' motion to dismiss, which opposition remains due by August 1, 2022.” The order warned that “[f]ailure to comply with this or any other Court order may result in sanctions, including dismissal of Plaintiff's case with prejudice.” (Dkt. 72.)
Plaintiff did not heed that warning. Over the period of July 12 to 18, 2022, Plaintiff filed several documents, including, among others: (1) a 42-page affidavit (plus exhibits) in further opposition and objection to the defendants' motion for dismissal and in support of moving the court to vacate the stay of discovery, the denial of the Plaintiff's motion for judgment as a matter of law and the removal of the John and Jane Does 1-1000 as Plaintiffs and DOC as a defendant (Dkt. 73); (2) a proposed order of judgment in Plaintiff's favor awarding her $565 million (Dkt. 74, 77); a “judgment roll” directing payment by the New York City Comptroller (Dkt. 79); a purported “notice of entry” of a proposed order for payment of $565 million to Plaintiff (Dkt. 81); and a request for the Court to issue a writ of execution of judgment (Dkt. 82).
Accordingly, on July 19, 2022, the Court issued an order explaining that Plaintiff's recent filings were not procedurally appropriate and violated the Court's earlier order regarding documents that Plaintiff may file while Defendants' motion to dismiss remained pending. The Court again admonished Plaintiff not to file “anything further on the docket unless directly related to Defendants' motion to dismiss” and again warned that failure to comply with this or any order of the Court may result in sanctions, including dismissal of Plaintiff's claims with prejudice. (Dkt. 83.)
That same day, Plaintiff filed, in multiple iterations, a document captioned as an affirmation in opposition to Defendants' motion to dismiss. Instead of addressing the motion to dismiss, however, and in violation of the Court's orders, the contents of the affirmation again challenged the stay of discovery. Plaintiff also requested a conference with the Court. (Dkt. 84, 87.)
Not having previously held a conference, the Court scheduled one for August 17, 2022. (Dkt. 89.) In the meantime, Plaintiff filed a 90-page opposition to Defendants' motion to dismiss (Dkt. 90), but also continued to file frivolous requests for relief in violation of the Court's orders. In particular, on August 3, 2022, Plaintiff filed a notice of motion and affidavit to sanction Defendants for violating a provisional restraining order. (Dkt. 92.) The next day, the Court denied the motion as frivolous as there was no restraining order in place, stated that the filing violated the Court's previous orders about documents that may be filed, and again warned that further violation of the Court's orders may result in dismissal of the case with prejudice. (Dkt. 94.)
Plaintiff once again ignored the Court's orders. On August 4, 2022, Plaintiff filed a proposed restraining order against Defendants (Dkt. 96), and on August 9, 2022, Plaintiff filed an affirmation “regarding mail tampering” and once again moving for a provisional restraining order and judgment against Defendants. (Dkt. 98.) The Court denied both applications as speculative and violative of the Court's previous orders. The Court cautioned again that further violation of the Court's orders may result in dismissal of the case with prejudice; the Court also stated it would not review any additional procedurally improper filings. (Dkt. 100.)
Pursuing another tactic, on August 12, 2022, Plaintiff filed a motion requesting that I recuse or disqualify myself given my prior work for the City of New York. (Dkt. 103, 105.) On August 16, 2022, I denied that motion, explaining that more than 25 years ago I spent four months on loan from my law firm to New York City's Corporation Counsel to defend against tort cases, none of which involved federal litigation. “Given the remoteness of my pro bono service to the City, its brief duration, and the unrelated nature of the proceedings, there is no appearance of impropriety nor any other basis for recusal.” (Dkt. 107.) On August 17, 2022, the Court held the previously scheduled case management conference at which I solicited and answered Plaintiff's questions and reiterated that discovery was stayed pending determination of the motion to dismiss and that Plaintiff need not file anything until I issue a report and recommendation on the motion. (Dkt. 111 at 3-9.)
Just a week later, Plaintiff filed a proposed civil case management plan and scheduling order setting imminent dates for discovery, even though Plaintiff had been repeatedly informed that discovery was stayed, and sought to confirm a preliminary conference supposedly scheduled for September 1, 2022. (Dkt. 112-14.) The Court denied Plaintiff's motion, explaining that no conference was scheduled for September 1 and that discovery had been stayed. Warning Plaintiff yet again, the order directed Plaintiff not to file anything while the motion to dismiss remains pending unless either responding to a filing of Defendants or a Court order, or presenting new legal authority relevant to Defendants' motion to dismiss. The order concluded with another warning that failure to comply may result in dismissal of the case with prejudice. (Dkt. 115.)
On September 15, 2022, Plaintiff filed a further affirmation in opposition to the motion to dismiss and in support of lifting the stay of discovery.(Dkt. 116.) And despite the Court's earlier denial of Plaintiff's request for a duplicative and unnecessary preliminary conference, Plaintiff filed another request for a preliminary conference. (Dkt. 118.) On September 19, 2022, the Court denied the request, again explaining that a preliminary conference already had been held and that there was no need for another conference while the motion to dismiss was pending. (Dkt. 120.) The Court also issued an order observing that Plaintiff's request to lift the stay had been denied multiple times and that Plaintiff's filings continued to be vexatious and an undue burden on the Court. The Court further noted that the motion to dismiss already had been fully briefed and that Plaintiff's filing raised no new matter of fact or law that could not have been raised in the earlier briefing. The Court reiterated the limited circumstances under which Plaintiff could file additional documents and repeated the warning that failure to comply may result in dismissal with prejudice. (Dkt. 122.)
Defendants filed their reply in further support of their motion to dismiss on August 10, 2022 (Dkt. 99). The Court did not invite Plaintiff to file a sur-reply. Plaintiff did so anyway.
Plaintiff did not relent. On October 5, 2022, Plaintiff filed an affirmation requesting to vacate all prior orders of the Court, purporting to set deadlines for discovery, and again requesting a provisional restraining order. The filing attached hundreds of pages of exhibits. (Dkt. 126.) The following day, October 6, 2022, the Court issued an order stating that Plaintiff's most recent filing requested relief previously denied and violated the Court's previous orders. The order once again warned Plaintiff that her case could be dismissed with prejudice for violating court orders. (Dkt. 127.) The same day, however, Plaintiff again violated the Court's orders by filing a motion for provisional monetary relief.(Dkt. 128.) The Court denied the motion as frivolous, vexatious, and violative of the Court's orders. The order concluded with another warning of dismissal with prejudice for failure to comply. (Dkt. 131.)
Plaintiff also filed a motion to disqualify and remove the Magistrate Judge from the case. (Dkts. 129-30; 141.) This Court already denied Plaintiff's recusal motion; the District Judge may address Plaintiff's more recent motion should he deem it appropriate to do so.
On October 27, 2022, Plaintiff filed yet another motion for provisional monetary relief and reiterated her requests to “restore the caption” and assign a new judge to her case. (Dkt. 134.) The Court denied the motion as frivolous, vexatious, and violative of the Court's orders and concluded with another warning of dismissal with prejudice for failure to comply. (Dkt. 138.) Nonetheless, Plaintiff filed another motion for provisional monetary relief on October 31, 2022, this time directed to Chief District Judge Swain. (Dkt. 139.)
On November 3, 2022, Plaintiff filed a letter directed to Chief Judge Swain requesting confirmation of a conference on November 15 that was not scheduled. (Dkt. 143.) On November 4, 2022, Plaintiff once again moved for the entry for judgment as a matter of law or for a new trial, also directed to Chief Judge Swain. (Dkts. 144-45.) In short, the frivolous filings and disregard of the Court's orders remains unabated.
With respect to the instant motion to dismiss, Plaintiff has filed at least six affirmations purporting to be in objection or opposition to the motion; most of those affirmations also are made in support of some of the frivolous and improper applications described above. (See Dkts. 58, 62, 73, 90, 102, 116.) Those affirmations, which are rambling and disjointed, largely just rehash the allegations of the Complaint. The Court, however, has extracted and considered whatever relevant arguments Plaintiff has made in regard to Defendants' motion to dismiss.
Discussion
Defendants argue that all of Plaintiff's claims should be dismissed, although for varied reasons. First, Defendants contend, most of Plaintiff's claims are barred by the doctrine of collateral estoppel based on the previous dismissal of Plaintiff's claims in the Eastern District Action. Second, Plaintiff's retirement-related claims are barred by the doctrine against claim splitting based on the State Court Action. Third, those same retirement-related claims and several of Plaintiff's other claims are barred by the statute of limitations. Fourth, claims not otherwise barred by the preceding principles fail to state a claim for relief. The Court addresses each argument in turn and concludes that the Complaint should be dismissed in its entirety, for some, but not all, of the reasons offered by Defendants.
I. Claims Barred By Res Judicata
Principles of res judicata bar most of Plaintiff's claims in this action, namely those under Title VII, the Americans With Disabilities Act, 42 U.S.C. § 1983, 18 U.S.C. § 24142, 34 U.S.C. §§ 2511 and 12291, and RICO, and those for involuntary servitude, domestic terrorism, negligent hiring, training, and retention, and retaliation. That is because the same facts and claims were considered and dismissed as implausible in the Eastern District Action.
The doctrine of res judicata dictates “that a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.” Burgos v. Hopkins, 14 F.3d 787, 789 (2d Cir. 1994) (internal quotations omitted). The common law doctrines of res judicata and collateral estoppel are “related but distinct [and] operate to prevent parties from contesting matters that they have had a full and fair opportunity to litigate, thereby conserving judicial resources and protecting parties from the expense and vexation of multiple lawsuits.” Marvel Characters, Inc. v. Simon, 310 F.3d 280, 286 (2d Cir. 2002) (citing Montana v. United States, 440 U.S. 147, 153-54, 99 S.Ct. 970, 973-74 (1979)). Contrary to Plaintiff's contention that res judicata applies only in the criminal context (Dkt. 58 at 10), the doctrine applies in civil cases as demonstrated by the cases cited in this section.
“Res judicata [or claim preclusion] precludes parties from litigating issues ‘that were or could have been raised' in a prior proceeding.” Perez v. Danbury Hospital, 347 F.3d 419, 426 (2d Cir. 2000) (quoting Monahan v. New York City Department of Corrections, 214 F.3d 275, 284-85 (2d Cir. 2000)); see also Irish Lesbian and Gay Organization v. Giuliani, 143 F.3d 638, 644 (2d Cir. 1998). “To prove that a claim is precluded under this doctrine, ‘a party must show that (1) the previous action involved an adjudication on the merits; (2) the previous action involved the parties or those in privity with them; and (3) the claims asserted in the subsequent action were, or could have been, raised in the prior action.'” Pike v. Freeman, 266 F.3d 78, 91 (2d Cir. 2001) (brackets omitted) (quoting Monahan, 214 F.3d at 284-85).All three requisites exist here.
In arguing that principles of res judicata apply, Defendants' brief primarily invokes the doctrine of issue preclusion and collateral estoppel. The Court finds that analysis less directly on point than the discussion above, which is premised on claim preclusion.
First, the Eastern District Action concluded with an adjudication on the merits, finding that Plaintiff's claims were “fanciful and delusional” and dismissing the allegations as not plausible. Although the case was resolved at the motion to dismiss stage, “[f]or purposes of the doctrine of res judicata, a dismissal for failure to state a claim is a final judgment on the merits.” Brodsky v. New York City Campaign Finance Board by Weisman, 796 Fed.Appx. 1, 4 (2d Cir. 2019) (internal quotation marks omitted).
Second, certain defendants in both actions are identical, or in privity with each other. The Plaintiff is the same. The City of New York is the primary defendant in both cases. The Commissioner of DOC is also a defendant in both cases. Joseph Ponte was the Commissioner named in the Eastern District Action; Louis Molina, who became Commissioner in 2022, is named in the instant action. Although they are not the same individual, the factual allegations are the same, and there are no allegations of any personal involvement by Molina.
www1.nyc.gov/site/doc/about/commissioner.
Indeed, both Molina and Mayor Eric Adams should be dismissed as defendants. Whether named individually or in their official capacity (the Complaint does not say), the claims against Molina and Adams should be dismissed for the independent reason that they are New York City officials, and the Complaint fails to assert any specific allegations against them. See Davis v. Stratton, 360 Fed.Appx. 182, 183 (2d Cir.2010) (“The suit against the mayor and police chief in their official capacities is essentially a suit against the City of [New York], because in a suit against a public entity, naming officials of the public entity in their official capacities adds nothing to the suit”) (internal quotation marks and brackets omitted); Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (“It is well settled in this Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983”) (internal quotation marks omitted); Dove v. Fordham University, 56 F.Supp.2d 330, 335 (S.D.N.Y. 1999) (“It is well-settled that where the complaint names a defendant in the caption but contains no allegations indicating how the defendant violated the law or injured the plaintiff, a motion to dismiss the complaint in regard to that defendant should be granted”) (internal quotation marks omitted).
Third, certain claims asserted in the instant action were asserted in the Eastern District Action, and additional claims asserted by Plaintiff for the first time in this action could have been asserted in the Eastern District Action. Claims asserted in both actions include Plaintiff's discrimination claims under Title VII of the Civil Rights Act of 1964 on the basis of sex/gender; discrimination under the Americans with Disabilities Act; illegal retaliation; deprivation and conspiracy to deprive Plaintiff of various rights in violation of 18 U.S.C. §§ 241, 242; conspiracy in violation of the RICO Act; violation of 42 U.S.C. § 1983 based on various state penal laws; and human trafficking. Those claims were based on the same facts that Plaintiff alleges in this action as set forth in Subsections A and B of the Statement of Facts. The facts in common encompass, among others, alleged sexual harassment by Aaron Scarlett; creation of a hostile work environment; retaliation for Plaintiff's lodging complaints; multiple incidents of stalking and surveillance; and constructive discharge. Those claims and facts having been alleged in the Eastern District Action; res judicata bars relitigating them here.
The following claims from the instant action do not expressly appear in the complaint from the Eastern District Action: discrimination based on national origin and age; discriminatory denial of hazard pay; negligent hiring, retention, and training; involuntary servitude; interception and disclosure of communications in violation of 34 U.S.C. § 2511; technological abuse by stalking and other means in violation of 34 U.S.C. § 12291; and domestic terrorism in violation of 18 U.S.C. § 2231. Those claims, however, are based on the same facts as asserted in the Eastern District Action. The newly asserted claims therefore are claims that could have been brought in the Eastern District Action and are barred by res judicata no less than the claims previously asserted. See, e.g., Soules v. Connecticut, Department of Emergency Services and Public Protection, 882 F.3d 52, 55 (2d Cir. 2018) (affirming dismissal of second-filed claim because “[r]es judicata is based on the requirement that the plaintiff must bring all claims at once against the same defendant relating to the same transaction or event”) (internal quotation marks omitted); Cieskowska v. Gray Line New York, 295 F.3d 204, 205 (2d Cir. 2002) (affirming dismissal of second-claim asserting employment discrimination based on national origin where first action asserting wrongful discharge because “[e]ven claims based upon different legal theories are barred provided they arise from the same transaction or occurrence”) (internal quotation marks omitted); Snyder v. Yonkers Public School District, 315 F.Supp.2d 499, 503 (S.D.N.Y. 2004) (dismissing second-filed case “[s]ince Plaintiff could have raised her Title VII claim in the first action and since this claim arises out of the same transaction as her first suit, it is the same cause of action, for res judicata purposes”).
Plaintiff argues that Judge Cogan's decision in the Eastern District Action “was made in error.” (Dkt. 62 at 3; see also Dkt. 73 at 17.) Even if that were so, filing a new action in the Southern District is not a proper vehicle for addressing any such concern. Rather, Plaintiff would have had to move for reconsideration before Judge Cogan (which she did not), appealed (which she did unsuccessfully), or moved to vacate in the Eastern District (which she did not).
The only claims not barred by res judicata are those asserted against NYCERS and its Commissioner in regard to Plaintiff's retirement benefits, and Plaintiff's claim for wrongful death of her father. Those claims are based on events that allegedly occurred, respectively, in 2018 and 2019, and thus could not have been brought at the time Plaintiff commenced the Eastern District Action, which was filed in 2017. See S.E.C. v. First Jersey Securities, Inc., 101 F.3d 1450, 1464 (2d Cir. 1996) (“If the second litigation involved different transactions, and especially subsequent transactions, there generally is no claim preclusion”). The next sections address the claims not barred by res judicata, beginning with the retirement benefits claims.
Plaintiff argues that res judicata does not bar her claims in the instant action because she has alleged new facts that “relate back” to the events and facts alleged in the Eastern District Action. (Dkt. 90 at 4; Dkt. 116 at 2.) In that regard, Plaintiff cites Lawlor v. National Screen Service Corp., 349 U.S. 322, 75 S.Ct. 865 (1955), which held that res judicata did not bar an antitrust claim for anticompetitive conduct occurring after the first action. As explained above, the Court agrees that facts alleged in the Complaint occurring after the first action are not subject to res judicata, although they are subject to dismissal for other reasons. But the occurrence of those later events do not resurrect Plaintiff's right to sue anew based on the facts alleged (or which could have been alleged) in the Eastern District Action.
II. The Court Should Abstain From Considering Plaintiff's Claims Related To Her Retirement Benefits
Plaintiff first asserted her retirement benefits claims against NYCERS and Defendant Whinnery in the State Court Action filed on March 19, 2019. Res judicata does not bar those claims because the State Court Action has not reached a decision on the merits. Nonetheless, the Court should abstain from considering the retirement benefits claims because those very claims are the subject of the previously-filed parallel state action. Before discussing abstention, however, the Court first addresses Defendants' claim-splitting argument.
A. Claims Not Barred As Claim Splitting
Defendants argue that Plaintiff's retirement benefits claims are foreclosed in the instant action due to the doctrine of claim splitting. That doctrine generally prohibits duplicative litigation in federal court. Curtis v Citibank, N.A., 226 F.3d 133, 138 (2d Cir. 2000). Succinctly put, “plaintiffs have no right to maintain two actions on the same subject in the same court, against the same defendant at the same time.” Id. at 139. Claim splitting, however, may not be invoked where overlapping claims are asserted in state court and federal court, as distinct from being asserted in two federal courts. Kanciper v. Suffolk County Society for the Prevention of Cruelty to Animals, Inc., 722 F.3d 88, 92-93 (2d Cir. 2013) (reversing dismissal of claim where claims were filed in state court and federal court). Here, the duplicative actions include a first-filed state court action and a second-filed federal action. Accordingly, claim splitting does not bar Plaintiff's retirement-related claims in this case.
B. The Court Should Abstain From The Retirement Benefits Claims
Because the Court recommends abstaining from consideration of Plaintiff's retirement benefits claims, it does not address Defendants' argument that those claims are time-barred. That issue may be addressed in the State Court Action.
Because Plaintiff's retirement-related claims are the subject of the State Court Action, this Court should abstain from considering them so that they can be resolved in the state court where Plaintiff first filed them. The applicable abstention doctrine is grounded in Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236 (1976).
“[F]ederal courts have a strict duty to exercise the jurisdiction that is conferred upon them by Congress.” Quackenbush v. Allstate Insurance Co., 517 U.S. 706, 716, 116 S.Ct. 1712, 1720 (1996); see also Colorado River, 424 U.S. at 817, 96 S.Ct. 1236 at 1246 (federal courts have a “virtually unflagging obligation ... to exercise the jurisdiction given them”). In “exceptional circumstances,” however, and in service of important countervailing interests like “proper constitutional adjudication,” “federal-state relations,” or “wise judicial administration,” federal courts may decline to exercise their jurisdiction. Colorado River, 424 U.S. at 813, 818, 96 S.Ct. at 1244, 1246.
Generally, “the pendency of an action in the state court is no bar to proceedings concerning the same matter in the Federal court having jurisdiction ...” McClellan v. Carland, 217 U.S. 268, 282, 30 S.Ct. 501, 505 (1910). Yet, in Colorado River, the Supreme Court held that a “federal court may abstain from exercising jurisdiction when parallel state-court litigation could result in ‘comprehensive disposition of litigation.'” Niagara Mohawk Power Corp. v. Hudson River-Black River Regulating District, 673 F.3d 84, 100 (2d Cir. 2012) (quoting Colorado River, 424 U.S. at 817, 96 S.Ct., at 1246).
The threshold determination for Colorado River abstention is whether the concurrent federal and state proceedings are sufficiently “parallel.” See Dittmer v. County of Suffolk, 146 F.3d 113, 118 (2d Cir.1998); Alliance of American Insurers v. Cuomo, 854 F.2d 591, 603 (2d Cir.1988). Proceedings are “parallel” if “substantially the same parties are contemporaneously litigating substantially the same issue” in both forums. Dittmer, 146 F.3d at 118; accord Niagara Mohawk Power Corp., 673 F.3d at 100. “Perfect symmetry of parties and issues is not required .. Rather, parallelism is achieved where there is a substantial likelihood that the state litigation will dispose of all claims presented in the federal case.” Phillips v. Citibank, N.A., 252 F.Supp.3d 289, 295 (S.D.N.Y. 2017) (internal quotation marks and citations omitted); see also Pabco Construction Corp. v. Allegheny Millwork PBT, No. 12-CV-7713, 2013 WL 1499402, at *2 (S.D.N.Y. April 10, 2013) (“Complete identity of parties and claims is not required; the parallel litigation requirement is satisfied when the main issue in the case is the subject of already pending litigation”) (quoting GBA Contracting Corp. v. Fiduciary & Deposit Company of Maryland, No. 00-CV-1333, 2001 WL 11060, at *1 (S.D.N.Y. Jan. 4, 2001)).
Here, the threshold for application of Colorado River abstention is readily satisfied. Plaintiff's claims in the State Court Action and her retirement benefits claims in this case are the same. To be sure, the State Court Action solely concerns the retirement-related claims, while those claims are only one group among many others asserted in the instant action. But once the Court dismisses all other claims in this action for the reasons set forth above and below, the only remaining actionable claims will be Plaintiff's retirement benefits claims. In that event, the claims, parties, and relief sought will be the same in both cases, and abstention will dispose of the remainder of the claims asserted here.
Having determined that the threshold issue of concurrence has been satisfied, the Court turns to considering six additional factors:
whether the controversy involves a res over which one of the courts has assumed jurisdiction; (2) whether the federal forum is less inconvenient than the other for the parties; (3) whether staying or dismissing the federal action will avoid piecemeal litigation; (4) the order in which the actions were filed, and whether proceedings have advanced more in one forum than in the other; (5) whether federal law provides the rule of decision; and (6) whether the state procedures are adequate to protect the plaintiff's federal rights.Woodford v. Community Action Agency of Greene County, Inc., 239 F.3d 517, 522 (2d Cir. 2001) (internal citations omitted). These factors are not applied as a “mechanical checklist,” but are carefully balanced for each case, “with the balance heavily weighted in favor of the exercise of jurisdiction.” Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 16, 103 S.Ct. 927, 937 (1983).
Although no single factor is dispositive, “the danger of piecemeal litigation” is of “paramount consideration.” Arkwright-Boston Manufacturers Mutual Insurance Co. v. City of New York, 762 F.2d 205, 211 (2d Cir. 1985). As the Second Circuit has stated, “[t]he existence of [] concurrent proceedings creates the serious potential for spawning an unseemly ... race to see which forum can resolve the same issues first [which would be] prejudicial, to say the least, to the possibility of reasoned decisionmaking by either forum.” Arkwright-Boston, 762 F.2d at 211 (quoting Arizona v. San Carlos Apache Tribe of Arizona, 463 U.S. 545, 103 S.Ct. 3201, 3214 (1983)). Therefore, if the “linchpin” of the federal action is “essentially the same issue at the core of state action, there is a ‘strong likelihood of needless duplication of the state proceeding'” that favors granting abstention. Pabco, 2013 WL 1499402, at *3 (quoting Inn Chu Trading Company Ltd. v. Sara Lee Corp., 810 F.Supp. 501, 508 (S.D.N.Y.1992)).
Here, all Colorado River factors either weigh in favor of abstention or are neutral. There is no “res” over which to exercise jurisdiction, and there is no indication that proceeding in the state court will be any less convenient or inconvenient than proceeding in federal court. Those first two factors therefore are neutral. The remaining factors favor abstention. As all other claims are subject to dismissal due to res judicata or failure to state a claim, dismissing the remaining retirement-related claims in the federal action will avoid piecemeal litigation. Plaintiff filed her case in the State Court Action a year earlier than filing the instant action, and the State Court Action is at least as far along as the instant action. (See Dkt. 62-1 at 7, 9 (transcript of March 6, 2020 hearing in the State Court Action referencing the motion to dismiss in that case).) The applicable law is both federal and state, with state law providing two of the three relevant legal frameworks, which consist of state contract law, state constitutional law, and procedural due process protection pursuant to the Fourteenth Amendment of the United States Constitution. See King v. New York City Employees Retirement System, 212 F.Supp.3d 371, 379-80 (E.D.N.Y. 2016) (describing the three sources of legal protection for state and city pension plans). Finally, New York State court procedures are fully capable of protecting Plaintiff's federal due process rights as the two regimes are “virtually coextensive.” Algarin v. New York City Department of Correction, 460 F.Supp.2d 469, 478 (S.D.N.Y. 2006). Accordingly, the Court should abstain from considering the retirement benefits claims as they are already subject of the previously-filed State Court Action.
III. Plaintiff's Wrongful Death Claim Is Time-Barred And Insufficient To State A Claim For Relief
Plaintiff's wrongful death claim as to her father is neither barred by res judicata nor subject of the State Action. The claim nevertheless should be dismissed.
Plaintiff alleges that Defendants caused the death of her father through stalking and premeditated murder. (Compl. at 49.) Plaintiff's father passed away on December 10, 2019. (Compl. at 34.) The New York statute of limitations for wrongful death is two years from the date of death, which in this case would be December 10, 2021. E.P.T.L. § 5-4.1(1). Plaintiff commenced the instant action on March 29, 2022, more than three months after the statute of limitations expired. Plaintiff's cause of action for wrongful death thus is time-barred. See, e.g., Rivera v. West, No. 15-CV-1805, 2015 WL 8481554, at *2 (S.D.N.Y. Nov. 24, 2015) (dismissing wrongful death claim as time-barred because action was filed two years after death).
Plaintiff's claim also is facially implausible. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974 (2007) (holding that to survive a Rule 12(b)(6) motion, a complaint must plead “enough facts to state a claim to relief that is plausible on its face”). Plaintiff alleges that while traveling to her father's house on November 27, 2019, she saw a blue “hurst [sic]” that she considered a death threat against her father. Plaintiff's father then passed away 14 days later. There is no plausible connection between the Defendants, a random hearse on the highway, and Plaintiff's father's passing, and there are no facts asserted from which any such connection can be reasonably inferred, let alone any connection to alleged murder or wrongful death. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009) (holding that a claim is facially plausible when the factual content pleaded allows a court “to draw the reasonable inference that the defendant is liable for the misconduct alleged”). Accordingly, Plaintiff's claim for wrongful death (the Eleventh Claim) should be dismissed as well.
IV. Dismissal For Plaintiff's Frivolous Filings And Repeated Violation Of Court Orders
Separate and apart from the other reasons to dismiss Plaintiff's claims, the complaint could properly be dismissed based on Plaintiff's repeated violation of court orders, frivolous court filings, and otherwise vexatious conduct. See Fed.R.Civ.P. 41(b) (dismissal for failure to comply with court orders); Koehl v. Greene, 424 Fed.Appx. 61, 62 (2d Cir. 2011) (recognizing inherent power of court to sanction a litigant for disobeying court orders, and affirming dismissal of pro se plaintiff's complaint due to his repeated failures to abide by court orders); Uppal v. Western Express, Inc., 2019 WL 2450794, at *8 (S.D.N.Y. Feb. 27, 2019) (finding that pro se plaintiff's vexatious litigation conduct and repeated filing of “frivolous requests without any basis in fact or supporting material” in violation of court orders, along with other factors, merited dismissal), R. & R. adopted, 2019 WL 1434234 (S.D.N.Y. April 1, 2019). However, as there are ample substantive grounds for dismissal as set forth above, the Court recommends basing dismissal on those more substantive grounds rather than on Plaintiff's transgressions of court orders and frivolous filings.
Conclusion
For the foregoing reasons, I recommend that Defendant's motion to dismiss be GRANTED and that Plaintiff's complaint be dismissed with prejudice except with respect to Plaintiff's retirement-related claims concerning NYCERS, which, based on abstention, should be dismissed without prejudice and allowed to proceed in the State Court Action. To the extent not discussed above, the Court has considered the parties' arguments and finds them to be without merit.
Procedures For Filing Objections And Preserving Appeal
Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(d) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of Court, with extra copies delivered to the Chambers of the Honorable Paul A. Engelmayer, U.S.D.J., United States Courthouse, 500 Pearl Street, New York, NY 10007, and to the Chambers of the undersigned, United States Courthouse, 500 Pearl Street, New York, NY 10007. Failure to file timely objections will result in a waiver of objections and will preclude appellate review.
Copies transmitted to all counsel of record.
The Clerk of Court is respectfully requested to mail a copy of this Report and Recommendation to Plaintiff.