Borrello v. New York St. Department of Correctional Serv

Full title: LISA BORRELLO, Plaintiff, v. NEW YORK STATE DEPARTMENT OF CORRECTIONAL…

Court: United States District Court, W.D. New York

Date published: Sep 27, 2004

No. 00-CV-177A (W.D.N.Y. Sep. 27, 2004)

Opinion

00-CV-177A.

September 27, 2004

DECISION AND ORDER

RICHARD ARCARA, District Judge

INTRODUCTION

Plaintiff alleges that during the course of her employment as a cook at the Lakeview Shock Incarceration Correctional Facility ("SICF"), she was subjected to gender discrimination, sexual harassment and retaliation. Originally, plaintiff brought claims under (1) Title VII; (2) 42 U.S.C. § 1983, alleging violation of her due process and equal protection rights; (3) 42 U.S.C. § 1985(3), alleging conspiracy to deprive her of her civil rights; and (4) under New York state law for intentional infliction of emotional distress and prima facie tort.

BACKGROUND

On July 16, 2001, the Court granted, in part, defendants' motion to dismiss (a) plaintiff's Title VII claims against the individual defendants, leaving a Title VII claim against DOCS only; (b) her Due Process claims under § 1983, but leaving the Equal Protection claim intact; (c) her conspiracy claim under § 1985; (d) the claims for money damages against the individual defendants in their official capacities; and (e) the state law tort claims as against all individual defendants except defendant McKenna.

In September, 2003, plaintiff filed a motion to amend the complaint seeking: (1) to add defendants Farnham and Raynor; (2) to add additional factual allegations; (3) to reinstate her claims for procedural and substantive due process, § 1985 conspiracy; and (4) to reinstate her state law tort claims against the individual defendants. On January 8, 2004, Magistrate Judge Scott issued a Decision and Order granting, in part, plaintiff's motion to amend the complaint, permitting the additional defendants and additional factual allegations, but denying her motion to reinstate the due process, conspiracy and tort claims. Plaintiff appeals from the portion of the Decision and Order denying her motion to amend in order to reinstate the previously dismissed claims.

DISCUSSION

A. Standard of Review

The Magistrate Judge issued a Decision and Order in this case. All defendants argue that the "clearly erroneous or contrary to law" standard of review should apply. Plaintiff addresses this issue in her Reply Memorandum of Law¹ and asserts that, because the Magistrate Judge denied reinstatement of claims, that the Decision and Order, in fact, is dispositive of one or more of plaintiff's claims, and therefore, the de novo standard of review should apply.

1 Plaintiff's counsel incorrectly electronically filed this document as a reply to the defendants' various motions for extensions of time to file answers to the Amended Complaint. Plaintiff filed an Amended Complaint prior to oral argument on plaintiff's objections to the Decision and Order of the Magistrate Judge. The Amended Complaint added new defendants and new factual allegations, and did not include any of the claims plaintiff seeks to reassert.

The Court concludes that the "clearly erroneous or contrary to law" standard of review is appropriate in this case. However, the Court would reach the same conclusion even under a de novo standard of review.

B. Sufficiency of the Proposed Amended Complaint

Plaintiff contends that the Magistrate Judge apparently failed to consider newly discovered evidence² of defendants' discriminatory acts which, when considered with the allegations in the Proposed Amended Complaint, is sufficient to reinstate her due process, conspiracy and tort claims. According to plaintiff, this newly discovered evidence consists of witness statements made to DOCS investigators. A review of plaintiff's Proposed Amended Complaint reveals that plaintiff has failed to remedy the defects which pervaded the Original Complaint.

2 Plaintiff asserts that the defendants withheld some witness statements which were accumulated during DOCS internal investigations as well as the results of the DOCS investigations, despite plaintiff's request for all such statements. Defendants argue that plaintiff was aware of this evidence prior to the filing of the original complaint and that it is not newly discovered evidence.

With respect to plaintiff's claims of due process violations, in order to demonstrate a claim for deprivation of due process in violation of 42 U.S.C. § 1983, a plaintiff must allege that he or she "possessed a protected liberty or property interest, and that he [or she] was deprived of that interest without due process."McMenemy v. City of Rochester, 241 F.3d 279, 285-86 (2d Cir. 2001), quoting Hynes v. Squillace, 143 F.3d 653, 658 (2d Cir.) (per curiam), cert. denied, 525 U.S. 907 (1998). As the United States Supreme Court has stated:

To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.

. . .

Property interests, of course, are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits. Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709 (1972).

The Proposed Amended Complaint lacks sufficient allegations that plaintiff had a protected property interest in any of the claimed benefits of her employment. She claims that she was denied a promotion, a transfer, overtime opportunities, permission to engage in outside work, incremental pay raises and favorable performance evaluations. With the exception of references to her seniority and a vague reference to a Collective Bargaining Agreement, plaintiff has failed to allege a legitimate claim of entitlement to any of these benefits. Therefore, plaintiff has failed to sufficiently allege a property interest in any of these employment benefits. Moreover, even if plaintiff's Proposed Amended Complaint sufficiently alleges a property interest, plaintiff fails to identify the due process to which she was entitled. Plaintiff's objection to the Decision and Order on this basis is denied.

With respect to plaintiff's conspiracy claim under 42 U.S.C. § 1985(3), the allegations of the Proposed Amended Complaint contain nothing but assertions that all of the individual defendants treated her unfairly. There are no allegations concerning any agreement among the individual defendants to deprive plaintiff of her civil rights on the basis of her membership in or support of a protected class, allegations which are required to state a claim under the plain language of 42 U.S.C. § 1985(3). Moreover, this Court's previous Decision and Order dismissing plaintiff's conspiracy claim relied in part on the application of the intracorporate conspiracy doctrine. The allegations in the Proposed Amended Complaint pertain to individual defendants all of whom are or were employees of DOCS at the time of the events alleged, and there fore, the Court's prior determination applying the intracorporate conspiracy doctrine is sufficient to deny plaintiff's motion to amend the complaint to reallege the conspiracy claim.

Finally, with respect to the reassertion of the tort claims, plaintiff has not alleged any conduct of the individual defendants falling outside the scope of their employment or discharge of their duties. As noted in the Magistrate Judge's previous Report and Recommendation and the Court's previous Decision and Order dismissing these claims from the Original Complaint, New York Corrections Law § 24 prohibits tort claims against DOCS employees for conduct within the scope of their employment or the discharge of their duties. Therefore, the motion to amend the complaint is denied because the allegations in the Proposed Am ended Complaint are not sufficient to state claims for prima facie tort or intentional infliction of emotional distress against the individual defendants.

CONCLUSION

For the reasons stated above, plaintiff's objections to the Decision and Order of the Magistrate Judge are denied. The matter is referred back to Magistrate Judge Scott for further proceedings.

IT IS SO ORDERED.