Opinion
01 Civ. 9970 (SHS)
December 17, 2002
OPINION AND ORDER
Four former inmates of a community confinement center operated by a private company under contract with the federal Bureau of Prisons brought this action to recover for injuries they suffered when they were sexually abused by an employee of that company. Plaintiffs assert claims of negligence and violations of their constitutional rights. Defendant has moved, pursuant to Fed.R.Civ.P. 12(b)(6), to dismiss the complaint for failure to state a claim for relief. For the reasons set forth below, defendant's motion is denied.
I. BACKGROUND
In 1998, Susan Scainetti, Yvette Adorno, Stephanie Womble and Rosemarie Johnson were federal inmates at a community corrections facility in New York City known as Le Marquis Community Correctional Center. (Amended Compl. ¶ 13, 30, 46, 62). That facility is owned, operated and maintained by defendant Correctional Services Corporation ("CSC") pursuant to a contract with the federal Bureau of Prisons. (Id. at ¶¶ 9, 10). On various evenings between approximately November 6 and December 28, 1998, Miguel Carriera, an inmate counselor and CSC employee, allegedly "lured" plaintiffs, individually, into his office and sexually assaulted them. (Id. at ¶¶ 12, 14, 31, 47, 63). The assaults were facilitated by the fact that Carriera' s office was at the end of a hallway and "isolated . . . by double doors though which no sounds could be heard." (Id. at ¶ 15).
Within two years after the alleged sexual assaults, plaintiffs filed administrative tort claims with the federal Bureau of Prisons for damages resulting from Carriera's alleged acts, pursuant to a procedure set forth in 28 U.S.C. § 2672, but according to the complaint, "no settlements were offered." (Amended Compl. at ¶¶ 5, 6, 27, 28, 43, 44, 59, 60). Ms. Scainetti commenced this action on November 9, 2001 and four days later filed an amended complaint that added the claims of three additional plaintiffs. The complaint and amended complaint also named the United States as a defendant. Plaintiffs have since stipulated to dismiss the United States as a party and on May 24, 2002, the United States was dismissed from this litigation.
CSC has now moved to dismiss the amended complaint on three grounds, namely that (1) plaintiffs fail to state a claim for relief against CSC for deprivations of plaintiffs' constitutional rights, (2) the claims of plaintiffs Scainetta and Adorno are barred by the applicable statute of limitations and (3) CSC is immune from suit because it is a government contractor.
Plaintiffs, in their opposition to CSC's motion to dismiss, concede that "those causes of action alleging deprivation of plaintiffs' constitutional rights cannot be brought" against CSC. (Pl. Opp. at 1). Accordingly, the sole remaining claim for relief states a cause of action for common law negligence arising out of Carriera's actions. (Id. at 3).
II. DISCUSSION
A. Standard of Review
In reviewing a motion to dismiss a complaint, a court must accept as true the factual allegations in the complaint and must read the pleadings in the light most favorable to, and draw all reasonable inferences in favor of, the non-moving party. See Weinstein v. Albright, 261 F.3d 127, 131 (2d. Cir. 2001); Bolt Elec., Inc. v. City of York, 53 F.3d 465, 469 (2d Cir. 1995). Dismissal of the complaint is only proper when "it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief" Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). The review is limited, and "[t]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)). The Court's function on a motion to dismiss is "not to weigh the evidence that might be presented at trial but merely to determine whether the complaint itself is legally sufficient." Goldman v. Beldon, 754 F.2d 1059, 1067 (2d Cir. 1985).
B. Remedying Defective Complaint
Since plaintiffs are not pursuing their constitutional claims, they seek to amend the amended complaint to formally allege diversity jurisdiction. Not only does 28 U.S.C. § 1653 provide that "defective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts," but also "a jurisdictionally defective complaint can be regarded as satisfactorily amended if the record as a whole establishes the existence of the required diversity of citizenship between the parties." Curley v. Brignoli, Curly Roberts Assoc., 915 F.2d 81, 85 (2d Cir. 1990) (citing Baer v. United Service Automobile Assoc., 503 F.2d 393, 397 (2d Cir. 1974)). "[S]uch amendments will be freely permitted where necessary to avoid dismissal on purely technical grounds . . . [u]nless the record clearly indicates that the complaint could not be saved by any truthful amendment." Canedy, 126 F.3d at 103.
Here, plaintiffs claim there is diversity jurisdiction, albeit only in their opposition to CSC's motion to dismiss, (Pl. Opp. at 1-3), and CSC does not contest those allegations of diversity of citizenship. Specifically, Plaintiffs Scainetti, Adorno and Johnson are citizens of New York, plaintiff Womble is a citizen of Maryland, and CSC is incorporated in Delaware and has its principal office in Florida. in addition, the amount in controversy exceeds S75,000. Therefore, subject matter jurisdiction appears to be present. See Realty Holding Co. v. Donaldson, 268 U.S. 398, 399-400, 45 S.Ct. 521, 522, 69 L.Ed.1014 (1925) (where review of entire record shows jurisdiction, pleadings may be considered amended). Plaintiffs shall formally amend the complaint to delete the United States as a party, delete the constitutional claims and properly allege subject matter jurisdiction.
C. The Claims of Plaintiffs Scainetti and Adorno Are Not Barred by the Statute of Limitations
CSC contends that the claims of Scainetti and Adorno are barred by the three year statute of limitations for common law personal injury actions. See NYCPLR § 214; Snyder v. Town Insulation, Inc., 599 N.Y.S.2d 515, 516 (N.Y. 1993); Brooklyn Union Gas Co. v. Hunter Turbo Corp., 660 N.Y.S.2d 877, 878 (2d Dep't 1997). It is mistaken.
In the original complaint, filed November 9, 2001, Scainetti alleges that she was assaulted "[o]n or about November 6, 1998 or thereafter . . . (The precise date of occurrence is set forth in the records of the Bureau of Prisons.)." (Amended Compl. ¶ 14). On its face, her claims are barred by the three year statute of limitations, since the complaint was filed three years and three days after the date of the alleged assault. However, the "records of the Bureau of Prisons," received by Ms. Scainetti pursuant to a Freedom of information Law request only after filing the complaint, reflect that she told prison investigators on December 30, 1998 that Mr. Carreria "made numerous sexual advances towards her during the past several months." (Dubinsky Aff., Ex. 3). Ms. Scainetti also states in an affidavit that she could not "recall why I picked that date [November 6, 1998]," but that it was "an estimate" and that the sexual assaults, occurring on at least four occasions, "probably continued from sometime in October through December 1998." (Scainetti Aff., annexed to the Dubinsky Aff. as Ex. 2 at ¶¶ 3, 4, 6, 8). Since the alleged assaults continued through December 1998, at least some — if not all — of the assaults are within the statute of limitations. See Shannon v. MTA Metro-North Railroad, 704 N.Y.S.2d 208, 209 (1st Dep't 2000); Dana v. Oak Park Marina Inc., 660 N.Y.S.2d 906, 911 (4th Dep't 1997) (plaintiff will be permitted to amend her complaint to allege the relevant period of time). At the conclusion of discovery proceedings, CSC can raise anew the issue of which assaults, if any, are barred by NYCPLR § 214.
Ms. Adorno alleges abuse by Carriera occurring "on or about November 12, 1998." (Amended Compl. ¶ 31). The amended complaint, which was the first pleading she joined, was filed on November 13, 2001. As the U.S. District Court was closed on Monday, November 12, 2001, in observance of the legal holiday of Veterans Day, Ms. Adorno's claims also fall within the statute of limitations. See N.Y. Gen. Constr. Law § 25(a); Fed.R.Civ.P. 6(a) (in the event of a Saturday, Sunday or legal holiday, the period of time "runs until the end of the next day which is not one of the aforementioned days.")
Thus, neither Scainetti nor Adorno's claims run afoul of the statute of limitations, at least on the state of the current record.
D. Plaintiffs' Claims Are Not Barred by the Government Contractor Defense
CSC contends that it is immune from being held liable for negligence because it was a contractor for the government. Broadly formulated, the government contractor defense provides that "if a private party has contracted with the federal government to carry out a project on behalf of the government, then that private party, like the federal government, is shielded from liability under the doctrine of sovereign immunity."Norwood v. Esmor, Inc., 1997 WL 65913, *4 (S.D.N.Y. Feb. 13, 1997) (citing Yersley v. W.A. Ross Contr. Co., 309 U.S. 18, 20-21, S.Ct. 413, 414, 84 L.Ed. 554 (1940)); See Boyle v. United Technologies Corp., 487 U.S. 500, 506, 108 S.Ct. 2510, 2515, 101 L.Ed.2d 442 (1988); Lewis v. Babcock Indus., Inc., 985 F.2d 83, 86-87 (2d Cir. 1993); In re Joint Eastern and Southern District New York Asbestos Lit., 897 F.2d 626, 632 (2d Cir. 1990) ("stripped to its essentials," the government contractor defense is to claim "[t]he Government made me do it.").
The U.S. Court of Appeals for the Second Circuit has not addressed whether the government contractor defense is applicable in non-military contexts. See Malesko v. Correctional Services Corp., 229 F.3d 374, 382 (2d Cir. 2000) rev'd on other grounds, 534 U.S. 61, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001). We assume applicability for purposes of this Opinion.
However, "the government contractor defense only shields a government contractor from claims arising out of its actions where the government has exercised its discretion and judgment in approving precise specifications to which the contractor must adhere." Malesko, 229 F.3d at 382 (citing Lewis, 985 F.2d at 86-87). Liability has been found where the private party (1) exceeded the authority given to it by the federal government or (2) where the federal government's authority was not validly conferred. See Yearsley, 309 U.S. at 21, 60 S.Ct. at 414 (citations omitted).
Plaintiffs concede that the federal government "did validly confer upon defendant the authority to operate LeMarquis as a federal halfway house," and that the federal Bureau of Prisons issued specifications to which CSC had to adhere. (Pl. Opp. at 4). The core of the complaint, however, is that CSC "fail[ed] to enforce and heed" those very specifications, as "set forth in the Federal Bureau of Prisons Community Corrections Manual which provides for the safety of inmates in community programs." (Amended Compl. ¶ 15; Bureau of Prisons Community Corrections Manual, PS 7300.09 (Jan. 12, 1998)). Specifically, CSC allegedly failed to follow the manual provisions that require ". . . supervision and separation by sex to provide privacy and protection." (Dubinsky Aff., Ex. 8 at Attachment 4-8, p. 1). As CSC is charged with not following "reasonably precise" federal government specifications, it cannot invoke the government contractor defense to shield itself from liability. See Lewis 985 F.2d at 87.
CSC mistakenly relies upon dicta in Norwood v. Esmor, Inc., 1997 WL 65913, *4 (S.D.N.Y. Feb. 13, 1997) for the proposition that negligence does not constitute an abuse of a contractor's authority and thus is not an exception to the government contractor defense. The plaintiff inNorwood, however, was asserting violations of his constitutional rights against CSC's predecessor, claims no longer at issue here. Id. at *1. Moreover, state common law has consistently provided remedies against mistreatment of prisoners at the hands of private correctional facilities. See Richardson v. McKnight, 521 U.S. 399, 404-407, 117 S.Ct. 2100, 2104-2106, 138 L.Ed.2d 54 (1997).
CSC does not contend that plaintiffs have failed to allege it was negligent, but merely that it is immune from suit because it is a government contractor. In that regard, it should be noted that the U.S. Supreme Court has recently determined an action in which a federal offender sued CSC on the grounds that his rights were violated when he was made to take stairs to his fifth floor room at Le Marquis — the same facility at issue here — and sustained injuries when he suffered a heart attack and fell. See Correctional Services Corp. v. Malesko, 534 U.S. 61, 73, 122 S.Ct. 515, 522, 151 L.Ed.2d 456 (2001). In the course of deciding whether there was an implied private right of action pursuant to Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), for damages against private entities that engaged in alleged constitutional deprivations while acting under color of federal law — an issue not implicated here — the opinion of the Court stated that the plaintiff could have filed a state tort claim, as "respondent's complaint in the District Court arguably alleged no more than a quintessential claim of negligence." Malesko, 403 U.S. at 73, 91 S.Ct. at 522. The Supreme Court further noted that it was "somewhat ironic" that the plaintiff had alleged federal constitutional injuries, as it made it "considerably more difficult for respondent to prevail than on a theory of ordinary negligence." Malesko, 403 U.S. at 73, 91 S.Ct. at 522-23. This suit may proceed on "a theory of ordinary negligence."
III. CONCLUSION
For the reasons set forth above, defendant's motion to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6) is denied. Plaintiffs shall amend the amended complaint as set forth in this Opinion within twenty days.