Opinion
04-CV-26S.
March 28, 2005
DECISION AND ORDER
I. INTRODUCTION
On January 12, 2004, Plaintiff Patricia J. Curto commenced this action against Defendants Debra Bender, Wendy Kummer, Kelly Vacco, Michael Metzger, Town of Boston Justice Court and Town of Boston (the "Boston Defendants"), and Brian Parker, Amy Goldstein, Frank Clark and the Erie County District Attorney's Office (the "County Defendants") (Docket No. 1). Plaintiff amended her Complaint on February 17, 2004 to add Defendants Hon. Christopher J. Burns and David Caywood (the "State Defendants") (Docket No. 2), and filed a Second Amended Complaint on March 1, 2004 to name John Zittel as a Defendant (Docket No. 5 or 2Am. Compl.). Plaintiff alleges that all of the Defendants deprived her of her constitutional rights on the basis of her gender and/or age and/or social economic status in violation of the Civil Rights Act, 42 U.S.C. §§ 1983, 1985, 1986, and the Age Discrimination Act, 42 U.S.C. § 6101; and that certain of the Defendants violated her state statutory rights and committed various state torts against her. This Court has jurisdiction over Plaintiff's federal claims pursuant to 28 U.S.C. §§ 1331, 1343 and 2201, and supplemental jurisdiction over her state law claims pursuant to 28 U.S.C. § 1367.
The County Defendants, State Defendants, Boston Defendants and John Zittel have each moved to dismiss the Second Amended Complaint in its entirety pursuant to Federal Rule of Civil Procedure 12(b)(6) (Docket Nos. 9, 15, 33-38 and 45, respectively). Defendant Zittel also moves on the basis of Rules 12(b)(2) and 12(b)(4). Plaintiff has responded to each motion and has also moved for reimbursement of service costs and the imposition of sanctions and default judgment as to the Boston Defendants and Defendant Zittel (Docket Nos. 47, 48).
All motions have been fully briefed and are presently before this Court for disposition. For the following reasons, the State Defendants, County Defendants, Defendant Bender and Defendant Zittel's motions to dismiss are granted in their entirety; the motions to dismiss by the Town of Boston, Town of Boston Justice Court, Defendant Kummer, Defendant Vacco and Defendant Metzger are granted in part and denied in part; and Plaintiff's motion for reimbursement and sanctions against the Boston Defendants and Defendant Zittel are granted in part and denied in part.
II. STANDARDS ON MOTION TO DISMISS
It is well-settled that in determining a dismissal motion for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), a district court must accept the allegations contained in the complaint as true and draw all reasonable inferences in favor of the nonmoving party. Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir. 1999). A complaint should be dismissed only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 654, 119 S. Ct. 1661, 143 L. Ed. 2d 839 (1999) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957)). The Supreme Court has instructed district courts to apply a more flexible standard in determining the sufficiency of a pro se complaint than they would in reviewing a pleading submitted by counsel. Platsky v. CIA, 953 F.2d 26, 28 (2d Cir. 1991) ( citing Hughes v. Rowe, 449 U.S. 5, 9-10, 101 S. Ct. 173, 66 L. Ed. 2d 163 (1980) ( per curium). "However, conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss." Smith v. Local 8191 B.T. Pension Plan, 291 F.3d 236, 240 (2d Cir. 2002) (citation and quotation omitted); see also, Wynder v. McMahon, 360 F.3d 73, 80 (2d Cir. 2004) (12(b)(6) motions permit each particular defendant to eliminate causes of action for which no set of facts has been identified that support the claim(s) against him).
The task of the court addressing a 12(b)(6) motion is not to determine the weight of the evidence, but only to assess the legal feasibility of the complaint. Sims v. Artuz, 230 F.3d 14, 20 (2d Cir. 2000). "The issue is not whether a plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 319, 322, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974).
"When determining the sufficiency of [a plaintiff's] claim for Rule 12(b)(6) purposes, consideration is limited to the factual allegations in plaintiff['s] . . . complaint, . . ., to documents attached to the complaint as an exhibit or incorporated in it by reference, to matters of which judicial notice may be taken, or to documents [offered by the defendant that were] either in plaintiff's possession or of which [the plaintiff] had knowledge and relied on in bringing suit." Brass v. American Firm Technologies, Inc., 987 F.2d 142, 150 (2d Cir. 1993); see also, Cortec Ind., Inc. v. Sum Holding L.P., 949 F.2d 42, 47-48 (2d Cir. 1991), cert. denied, 503 U.S. 960 (1992). If the documents referenced in the complaint contradict the facts and inferences alleged by the plaintiff, the documents control and the court need not accept as true the plaintiff's allegations. See Feick v. Fleener, 653 F.2d 69, 75 n. 4 (2d Cir. 1981); United States ex rel. Sommer v. Dixon, 524 F. Supp. 83, 85 (N.D.N.Y. 1981), aff'd per curium, 709 F.2d 173 (2d. Cir. 1983), cert. denied, 464 U.S. 857 (1983).
III. BACKGROUND
Prior to the commencement of this action, Plaintiff made a criminal complaint(s) in the Town of Boston against a former co-worker, Jeffrey Gasper, and later commenced a civil action against Gasper and others in New York State Supreme Court, Erie County (I2003-2717). In this action, Plaintiff alleges that the Defendants violated her constitutional and statutory rights in connection with the town and state court proceedings relating to Gasper. Plaintiff's Second Amended Complaint references certain state court orders and proceedings, and some documents and court records from the referenced proceedings have been provided by the State Defendants. The following recitation of facts accepts Plaintiff's allegations as true, except where those allegations are contradicted by the documents referenced in her pleading.
Plaintiff's criminal complaint(s) against Gasper and the prosecution of same occurred over the period August 2002 through January 2003 (2Am. Compl., p. 12). The complaint(s) apparently related to an attempted sexual assault at her place of work, Zittel's Dairy ( Id., p. 15).
Plaintiff believes that Defendant John Zittel, owner of Zittel's Dairy, called Boston Town Justice Debra Bender ("Justice Bender") on Gasper's behalf, after which Justice Bender assigned Gasper a public defender to which he was not entitled ( Id.). On December 7, 2003, Justice Bender advised Assistant Erie County District Attorney Brian Parker ("ADA Parker") and a New York State trooper that she would not enforce Plaintiff's order of protection against Gasper ( Id.).
Although Plaintiff does not present her allegations in chronological order, it appears that this event may have occurred in December 2002, not 2003.
All of the following events are alleged to have occurred on January 13, 2003:
• ADA Parker told Plaintiff that he would not prosecute her complaint that Gasper had violated an order of protection ( Id., p. 12)
• ADA Parker told her that he would bring the complained of violation to trial ( Id., p. 13)
• John Zittel contacted ADA Parker on behalf of Gasper ( Id.)
• Gasper pled guilty in Boston Town Court to conduct occurring on July 27, 2002 ( Id., p. 15)
• Justice Bender gave Gasper a lenient/inappropriate sentence on his guilty plea ( Id.)
• Justice Bender dismissed a criminal contempt charge against Gasper, with ADA Parker's consent ( Id., pp. 12, 15).
When ADA Parker first met with Plaintiff regarding her criminal complaint(s) against Gasper, Parker told her that she should quit her job ( Id., p. 13). Sometime after Gasper's plea, Plaintiff made inquiries to the District Attorney's Office regarding the disposition of her complaint(s) against him ( Id.). On February 10, 2003, ADA Amy Goldstein refused to provide Plaintiff with the procedure for filing a complaint against ADA Parker ( Id.). ADA Goldstein subsequently sent a letter to Plaintiff requesting that she cease contacting the District Attorney's Office regarding the disposition of Gasper's charges ( Id.).
Plaintiff filed a civil action against Gasper and others in New York State Supreme Court, Erie County. On July 30, 2003, NYS Supreme Court Justice Marshall issued a judicial subpoena duces tecum permitting Plaintiff to obtain Gasper's Town of Boston Justice Court records ( Id., p. 10). The Town apparently failed to produce the records and, in November 2003, Justice Marshall issued a decision and order (the "Marshall Order") directing Town of Boston court clerk, Wendy Kummer ("Clerk Kummer") to provide to Plaintiff "ALL documents . . . relating to ALL of plaintiff Curto's complaints against Jeffrey Gasper, no later than November 21, 2003" (Docket No. 29, Ex. B). Prior to the deadline for disclosure, Plaintiff's state court action was transferred to Justice Christopher J. Burns ("Justice Burns") (2Am. Compl., p. 17). Some, but not all, of the records set forth in the Marshall Order were provided to Plaintiff by the November 21 deadline ( Id., pp. 10, 17).
Plaintiff states that her civil action asserts claims for sexual harassment, discrimination, hostile work environment, retaliation, sexual battery, assault by unwanted sexual advances, mental assault, failure to provide adequate security, negligent supervision, retention and training, abusive and malicious discharge/termination, and intentional infliction of emotional distress (2Am. Compl., p. 9).
Thereafter, Boston Town Attorney Kelly Vacco (Atty Vacco) "appealed" Justice Marshall's order to Justice Burns and his confidential law clerk, David Caywood ("Clerk Caywood") ( Id., p. 17). In a letter to Justice Burns dated December 5, 2003, Atty Vacco stated that Justice Marshall had denied Plaintiff's requests for records "on several occasions" ( Id., p. 10). Clerk Caywood asked Plaintiff to abandon her request for the remaining records, but she refused to do so ( Id., p. 17).
Plaintiff then brought a contempt motion against Clerk Kummer and Justice Bender based on Clerk Kummer's failure to produce all of the records covered by the Marshall Order ( Id.; Docket No. 29, Ex. A). Clerk Caywood cancelled a scheduled settlement conference after Plaintiff filed her contempt motion (2Am. Compl., p. 17).
At a hearing on Plaintiff's contempt motion on January 8 and 22, 2004, Clerk Kummer, Justice Bender and Atty Vacco were represented by Michael Metzger, Assistant Boston Town Attorney ("Atty Metzger") ( Id., pp. 10, 17; Docket No. 29, Ex. C). On January 8, Atty Metzger stated the Town of Boston's concern over releasing certain of Gasper's criminal records, which were sealed, and Justice Burns adjourned the matter so that the Town could determine whether Gasper had any objection to the disclosure (Docket No. 29, Ex. C., pp. 3, 8-9). Gasper raised no objection and, on January 22, 2004, Atty Metzger provided records to Plaintiff and Justice Burns which he stated were "all documents of the Town of Boston Justice Court relating to all of [Patricia] Curto's complaints against Jeffrey Gasper" ( Id., pp. 13-15). Plaintiff disputed the veracity of that statement, and also claimed that Atty Metzger had made false statements regarding the Town's reasons for nondisclosure of the Gasper records ( Id., pp. 16-17; 2Am. Compl., p. 10). Justice Burns advised Plaintiff that she should notify the court if, after review, she had reason to believe the records provided to her were incomplete, but cautioned her against bringing a baseless motion. (Docket No. 29, Ex. C, pp. 17-18).
At the January 22, 2004 contempt proceeding, Atty Metzger also advised Justice Burns that Plaintiff had commenced an action in federal court against Metzger and others (2Am. Compl., p. 17; Docket No. 29, Ex. C, pp. 16-17). According to Plaintiff, Justice Burns became angry upon hearing this and threatened to adversely rule against Plaintiff in her state court action (2Am. Compl., p. 17). The hearing transcript does not reflect any such statements by Justice Burns (Docket No. 29, Ex. C, pp. 17-18).
The disclosure of the Gasper records remained in dispute and, on February 4, 2004, Clerk Caywood decided that Plaintiff's failure to receive all of Gasper's Town of Boston Justice Court records was not an impediment to discovery (2 Am. Compl., p. 18). On February 19, 2004, Atty Metzger admitted before Justice Burns that Plaintiff had not received all of the records contemplated in the Marshall Order and, on that same date, Justice Burns reversed Justice Marshall's prior decision and order ( Id.).
Plaintiff asserts four causes of action based on the foregoing facts which are organized by Defendants, rather than by theories of recovery. Taken together, Plaintiff alleges the following: (1) each Defendant violated her constitutional rights to due process, equal privileges and equal protection on the basis of her gender and/or age and/or social economic class in violation of 42 U.S.C. § 1983 and 1985, and the Age Discrimination Act, 42 U.S.C. § 6101; (2) Defendants Bender, Kummer, Vacco, Metzger, Town of Boston Justice Court and Town of Boston violated her constitutional right to privacy; (3) each Defendant failed to prevent a conspiracy in violation of 42 U.S.C. § 1986; (4) Defendants Bender, Kummer, Vacco, Metzger, Town of Boston Justice Court, Town of Boston, Burns and Caywood neglectly [sic] or intentionally caused her emotional distress; (5) the Town of Boston negligently retained and/or supervised Bender and Kummer and (6) the District Attorney's Office and Clark negligently supervised Parker and Goldstein. Plaintiff also generally asserts that all Defendants violated the New York State Constitution, Human Rights Law, Public Officers Law and tort laws.
IV. DISCUSSION AND ANALYSIS
A. The State Defendants
Both Justice Burns and Law Clerk Caywood move to dismiss the Second Amended Complaint as against them on the ground that they are absolutely immune from suit.
1. Justice Burns
"'[I]t is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself.'" Mireles v. Waco, 502 U.S. 9, 9-10, 112 S. Ct. 286, 116 L. Ed. 2d 9 (1991) ( quoting Bradley v. Fisher, 80 U.S. 335, 13 Wall. 335, 20 L. Ed. 646 (1872)). Judicial immunity, like other forms of official immunity, is immunity from suit, not just from the ultimate assessment of damages. Mitchell v. Forsythe, 472 U.S. 511, 526, 105 S. Ct. 2806, 86 L. Ed. 2d 411 (1985). Thus, "[judicial] immunity applies even when the judge is accused of acting maliciously and corruptly." Imbler v. Pachtman, 424 U.S. 409, 419 n. 12, 96 S. Ct. 984, 47 L. Ed. 2d 128 (1976) ( citing Pierson v. Ray, 386 U.S. 547, 553-54, 87 S. Ct. 1213, 18 L. Ed. 2d 288 (1967)).
There are only two circumstances in which judicial immunity can be overcome: (1) a judge is not immune from liability for actions taken outside his or her judicial capacity; and (2) a judge is not immune from actions that, although judicial in nature, are taken in the complete absence of jurisdiction. Mireles, 502 U.S. at 11-12 (citations omitted).
Plaintiff contends that Justice Burns is not entitled to absolute immunity here because on February 19, 2004, he "reversed Justice Marshall's previous decision" and lacked jurisdiction to do so (2Am. Compl., p. 18). Plaintiff argues that any "appeal" of the Marshall Order should have been decided by the New York Court of Appeals or the Appellate Division, rather than Justice Burns.
Justice Burns argues that the proceedings on January 8 and 22, 2004 were related to Plaintiff's contempt motion, a matter within his jurisdiction, and that he upheld the Marshall Order at that time. However, he does not address Plaintiff's allegation that, subsequent to the contempt proceeding, he in fact reversed Justice Marshall's Order, nor does he provide any transcript or documentation from February 19, 2004 that would shed light on that proceeding. Accepting Plaintiff's allegation regarding the reversal of the Marshall Order as true, this Court must determine whether such conduct constitutes an exception to the doctrine of absolute judicial immunity. For the reasons stated below, I conclude that it does not.
"Because 'some of the most difficult and embarrassing questions which a judicial officer is called upon to consider and determine relate to his jurisdiction . . .' the scope of the judge's jurisdiction must be construed broadly when the issue is the immunity of the judge." Stump v. Sparkman, 534 U.S. 349, 356, 98 S. Ct. 1099, 55 L. Ed. 2d 331 (1978) ( quoting Bradley v. Fisher, 80 U.S. (13 Wall.) 335 (1872)). In Stump, the United States Supreme Court determined that "[a] judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has acted in the ' clear absence of all jurisdiction.'" 435 U.S. at 356-57 ( quoting Bradley, 80 U.S. at 351) [emphasis supplied]. The critical difference between acts taken in excess of authority, to which immunity attaches, and those taken in the clear absence of all jurisdiction was clearly articulated in Bradley:
A distinction must be here observed between excess of jurisdiction and the clear absence of all jurisdiction over the subject-matter. Where there is clearly no jurisdiction over the subject-matter any authority exercised is a usurped authority, and for the exercise of such authority, when the want of jurisdiction is known to the judge, no excuse is permissible. But where jurisdiction over the subject-matter is invested by law in the judge, or in the court which he holds, the manner and extent in which the jurisdiction shall be exercised are generally as much questions for his determination as any other questions involved in the case, although upon the correctness of his determination in these particulars the validity of his judgments may depend.80 U.S. at 351-52.
Here, Plaintiff does not allege or argue that the New York State Supreme Court is a court of limited jurisdiction, that Justice Burns lacked subject matter jurisdiction over her state court claims, or that his reversal of the Marshall Order was not a judicial act. Where subject matter jurisdiction over the nature of an action exists, a decision to consider and rule on a discovery dispute arising in that litigation is a judicial action that is not taken "in the clear absence of all jurisdiction." Thus, accepting Plaintiff's recitation of the facts as true, she alleges at most that Justice Burns acted "in excess of his authority" or erred in the manner in which he exercised his jurisdiction. These allegations are not sufficient to divest Justice Burns of absolute judicial immunity. 2. Clerk Caywood
In addition, Plaintiff's request that the Court order the "cessation of all [Justice Burn's] practices and policies that violate federal and state Constitution" — is moot. Plaintiff notes in her response, and state court records confirm, that Justice Burns recused himself from her state court action on March 4, 2004 and the case was reassigned on March 8, 2004 (Docket No. 22, p. 9; No. 29, Ex. D).
David Caywood, confidential law clerk to Justice Burns, purportedly deprived Plaintiff of her constitutional and statutory rights when he: (1) requested that she abandon her attempts to obtain the Gasper records; (2) cancelled a settlement conference; and (3) stated that the absence of certain records was not an impediment to discovery, a view that was adopted by Justice Burns when he reversed the Marshall Order on February 19, 2004. Clerk Caywood contends that he, too, is entitled to absolute immunity.
In this Circuit, judicial immunity extends to law clerks performing acts of a judicial nature. Oliva v. Heller, 839 F.2d 37, 40 (2d Cir. 1988); Owens v. Suter, 02 Civ. 8198, 2003 U.S. Dist. LEXIS 3388, at *5-6 (S.D.N.Y. Mar. 7, 2003). This includes management of the court's calendar, which falls under the court's inherent power to control its docket, Rodriguez v. Weprin, 116 F.3d 62, 65-66 (2d Cir. 1997) (citations omitted), and work done by the law clerk that is approved or adopted by the judge,Oliva, 839 F.2d at 40. Here, all of the conduct identified in the Second Amended Complaint involves protected acts taken to assist Justice Burns in the performance of his judicial functions. Therefore, Clerk Caywood is also entitled to absolute immunity.
In response to Caywood's motion, Plaintiff argues thatSanders v. Union Pacific, 193 F.3d 1080, 1082-83 (9th Cir. 1999) (concurring opinion) compels the conclusion Caywood is not entitled to immunity. In addition to the fact that this Court is not bound by Ninth Circuit precedent, the circumstances ofSanders are readily distinguished. The concurring opinion inSanders was directed solely to the question of whether a law clerk can preside over a Rule 16(d) final pretrial conference in federal court, a question that has no bearing on the facts alleged here.
For the reasons stated, the State Defendants' motion to dismiss is granted and the Second Amended Complaint against them is dismissed in its entirety.
B. The County Defendants
The County Defendants assert numerous grounds for dismissal including Plaintiff's failure to serve a notice of claim with respect to her state law claims, Eleventh Amendment bar, prosecutorial immunity, failure to exhaust administrative remedies or to state a claim under the Age Discrimination Act, and failure to state a claim under the Civil Rights Act.
1. The State Statutory and Common Law Claims
Plaintiff purports to bring claims under New York's Constitution, Public Officers Law, Human Rights Law and tort laws. The County Defendants contend that all of Plaintiff's state law claims must be dismissed for failure to serve a notice of claim as required by N.Y. General Municipal Law §§ 50-e and 50-i and N.Y. County Law § 52(1). Plaintiff does not deny that she failed to serve a notice of claim, but argues that a public interest exception applies to her allegations.
New York County Law § 52 provides, in relevant part:
(1) Any claim or notice of claim against a county for damage, injury or death, or for invasion of personal property rights, of every name and nature . . . and any other claim for damages arising at law or equity . . . [against] the county, its officers, agents, servants or employees, must be made and served in compliance with section fifty-e of the general municipal law. Every action upon such claim shall be commenced pursuant to the provisions of section fifty-I of the general municipal law.
Section 50-e requires the filing of a notice of claim within 90 days of when the claim arises and section 50-1 prevents any action from being commenced against a municipality unless the plaintiff has complied with the notice of claim requirement.
In Union Free School Dist. No. 6 of Towns of Islip Smithtown v. New York State Human Rights Appeal Bd., 35 N.Y.2d 371 (1974), the New York Court of Appeals did recognize a public interest exception to the notice of claim requirement where an action is brought to vindicate a public interest rather than to enforce an individual's rights. In that case, the Court of Appeals determined that the elimination of a discriminatory personnel policy regarding maternity leave would benefit not just the individual who had brought the complaint forward, but all other similarly situated women. Id. at 379-80. The existence of an identifiable policy that had a disparate impact on a similarly situated class of individuals was critical to the finding of a public interest exception.
As the Court of Appeals later noted in Mills v. County of Monroe, 59 N.Y.2d 307 (1983), while all actions brought to enforce civil rights arguably can be said to be in the public interest, the exception applies only to actions brought to protect an important right on behalf of a similarly situated class of the public, whose resolution will directly affect the rights of that class. Id. at 311 (finding that the plaintiff, whose allegations of wrongful conduct by the county related only to her, was not entitled to the exception).
Reading the Second Amended Complaint in the light most favorable to Plaintiff, this Court concludes that Plaintiff is seeking redress for her individual injuries and, therefore, the public interest exception to the notice of claim requirement does not apply. Plaintiff's fact allegations regarding the County Defendants relate solely to their handling of the prosecution of an individual she claims victimized her and their lack of responsiveness to her complaints in that regard (2Am. Compl., pp. 12-13). She claims to have been treated less favorably than all other citizens who make criminal complaints ( Id., pp. 13-14) and seeks a finding that her rights were violated and also monetary damages for her pain and emotional distress ( Id., pp. 14-15). Plaintiff's bare assertion that the County Defendants have a policy and/or practice of denying due process and equal protection to, and denying and/or obstructing justice for, individuals/victims who are female and/or older and/or lower social economic class is not supported by a single fact allegation and, therefore, is insufficient to invoke the public interest exception.
Plaintiff's further argument that she should be excused from the notice of claim requirement because the County Defendants received actual notice of her claims when she sought to make a complaint about ADA Parker is also unpersuasive. See Crair v. Brookdale Hosp. Medical Ctr., 94 N.Y.2d 524, 531 (2000) (New York upholds the strict application of its notice of claims provisions even where the defendant has actual knowledge of its potential liability) (citation omitted).
Accordingly, all of Plaintiff's state law claims against the County Defendants are dismissed for failure to file a notice of claim prior to commencing suit. As a result, the Second Amended Complaint is dismissed in its entirety as to DA Clark as well, as a state common law claim of negligent supervision is the only claim against him. 2. The Federal Claims
Plaintiff correctly notes in her response that she is not required to file a notice of claim with regard to her federal claims. The County Defendants have not moved to dismiss her federal claims on this ground.
Notwithstanding Plaintiff's generalized allegation that all of the Defendants conspired to violate her federal constitutional and civil rights, DA Clark is mentioned only once in the Second Amended Complaint, and that is solely with regard to his negligent supervision of ADA Parker. See Barbera v. Smith, 836 F.2d 96, 99 (2d Cir. 1987) (allegations of negligence do not state a constitutional claim).
The facts alleged in support of Plaintiff's various federal claims against the County Defendants are as follows. Plaintiff was dissatisfied with ADA Parker because he: (1) suggested that she quit her job; (2) failed to prosecute Gasper to the fullest extent; (3) failed to prosecute violations of Plaintiff's order of protection; (4) accepted a telephone call from John Zittel on January 13, 2003; and (5) resolved at least one charge against Gasper by plea. The allegations against ADA Goldstein are that she: (1) refused to provide Plaintiff a procedure to file a complaint against ADA Parker; and (2) determined, without conducting a review, that ADA Parker had acted properly with regard to the prosecution of Gasper.
Plaintiff's claim of negligent supervision by Goldstein, a state law claim, has already been addressed.
(a). Eleventh Amendment Bar and Prosecutorial Immunity
The Second Amended Complaint does not specify whether the various Defendants are sued in their official or individual capacities. ADAs Parker and Goldstein contend that the Eleventh Amendment bars suits against them in their official capacities and that they are protected by absolute prosecutorial immunity in their individual capacities.
"'When prosecuting a criminal matter, a district attorney in New York State, acting in a quasi-judicial capacity, represents the State not the county'" and is therefore entitled to invoke Eleventh Amendment immunity. Gan v. City of New York, 996 F.2d 522, 535-36 (2d Cir. 1993) ( quoting Baez v. Hennessy, 853 F.2d 73, 77 (2d Cir. 1998), cert. denied, 488 U.S. 1014, 109 S. Ct. 805, 102 L. Ed. 2d 796 (1989)). The Eleventh Amendment bars official capacity suits to the extent the claims center on decisions whether or not, and on what charges, to prosecute.Gan, 996 F.2d at 536. In this case, the Eleventh Amendment bars all claims relating to ADA Parker's purported failures to prosecute Plaintiff's criminal complaint against Gasper or the alleged violations of her order of protection. However, the Eleventh Amendment does not extend to claims against ADA Goldstein regarding her handling of Plaintiff's complaint about ADA Parker as those allegations relate to personnel administration, not the underlying criminal prosecution. Id.
Plaintiff, citing Ex parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 2d 714 (1908), argues that even if her claims for monetary relief are barred, the Eleventh Amendment does not preclude her claims for prospective injunctive relief. "In determining whether the doctrine of Ex parte Young avoids an Eleventh Amendment bar to suit, a court need only conduct a straightforward inquiry into whether the complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective." Verizon Md. v. Pub. Serv. Comm'n of Md., 535 U.S. 635, 122 S. Ct. 1753, 1760, 152 L. Ed. 2d 871 (2002) (internal citation and quotation marks omitted). As discussed fully in Points III(B)(2)(b)-(d) below, Plaintiff does not allege the existence of an ongoing violation of federal law by Parker and, therefore, cannot avoid the Eleventh Amendment bar to claims relating to the prosecution of her criminal complaint(s).
To the extent the Second Amended Complaint seeks to assert individual capacity claims against ADAs Parker and Goldstein, the outcome is the same. "It is firmly established that prosecutors are entitled to absolute immunity from suits for damages arising from activities that are 'intimately associated with the judicial phase of the criminal process.'" Barbera v. Smith, 836 F.2d 96, 99 (2d Cir. 1987) ( quoting Imbler, 424 U.S. at 430-31). This protection encompasses "all of their activities that can fairly be characterized as closely associated with the conduct of litigation or potential litigation. . . ." Barrett v. United States, 798 F.2d 565, 571-72 (2d Cir. 1986). Thus, prosecutors are "absolutely immune with respect to a decision whether or not to prosecute . . . and the conduct of a plea bargain." Barbera, 836 F.2d at 99-100 (internal citations omitted). In short, it is beyond dispute that ADA Parker is immune from suit relative to his purported failure to prosecute and the ultimate disposition of a criminal charge(s) against Gasper by plea.
Plaintiff urges that ADA Parker was acting in an investigatory role when he told her she should quit her job during their first meeting and when "John Zittel contacted Parker on 1/13/03 on behalf of Gasper" (2Am. Compl., p. 13; Docket No. 18, pp. 12-13). Although the Second Circuit has declined to adopt a bright line test for determining whether conduct is investigatory or prosecutorial, the Court did note in Barbera that investigatory conduct generally takes place prior to the commencement of criminal proceedings. 836 F.2d at 100. Even then, pre-litigation conduct has at least two aspects: (1) the supervision and interaction of law enforcement agencies in acquiring evidence which might be used in prosecution; and (2) the organization, evaluation, and marshaling of this evidence in a form that will enable the prosecutor to carry out his duties of trying a case or seeking an indictment. Id. Only the first has been determined to be of a police nature and therefore not entitled to absolute protection. Id.
Here, Plaintiff does not identify the date that she first met with ADA Parker or the purpose or content of that meeting. However, even if one were to assume that this meeting fell on the investigatory side of the fence, Plaintiff has not alleged, and this Court cannot fathom, how her constitutional rights were violated by ADA Parker suggesting that she quit her job. While the comment may have offended Plaintiff, no constitutional due process, equal privilege or equal protection rights are implicated. As for ADA Parker's subsequent conversation with Zittel, who had employed both Plaintiff and Gasper, Zittel called Parker well after Gasper had been charged and, in fact, on the same date Gasper ultimately pled to at least one criminal charge. Reading the Second Amended Complaint broadly, there is simply no suggestion that Parker's acceptance of Zittel's call fell outside the ambit of his evaluation of, preparation for and participation in the judicial phase of the ongoing criminal process.
Tellingly, Plaintiff does not allege that Parker made any decision or adopted any course of action as a result of Zittel's phone call, nor does she allege any injury arising from that conversation. In her memorandum, Plaintiff expresses concern that Zittel may have made false claims against her, and criticizes ADA Parker for purportedly failing to also interview a witness she identified. These allegations do not appear in the Second Amended Complaint, and even if they did, would not implicate a constitutional violation by Parker.
Plaintiff correctly contends that her allegations against Goldstein relate to personnel matters which are administrative functions and not protected by absolute immunity.
To summarize, the only conduct that does not clearly fall within the Eleventh Amendment bar and/or absolute prosecutorial immunity is ADA Parker telling Plaintiff she should quit her job, ADA Goldstein refusing to provide her with the procedure for filing a complaint against Parker; and Goldstein's decision, without reviewing any records, that Parker acted properly with regard to the prosecution of Gasper.
This allegation does not implicate any constitutional right and will not be discussed hereafter.
(b). The Age Discrimination Act
The Age Discrimination Act ("ADA") "prohibits discrimination on the basis of age in programs or activities receiving federal financial assistance." 42 U.S.C. §§ 6101 et seq. Prior to filing suit under the ADA, a plaintiff must exhaust the administrative remedies set forth in 42 U.S.C. § 6104 and 45 C.F.R. § 90.50. Curto v. Smith, 248 F. Supp. 2d 132, 145 (N.D.N.Y. 2003), aff'd, 392 F.3d 502 (2004). The County Defendants contend that Plaintiff cannot maintain a claim where she has failed to allege administrative exhaustion. Id. at 145 (finding that the district court lacks subject matter jurisdiction if the administrative prerequisites are not fulfilled).
Plaintiff, citing Egelston v. State Univ. College at Geneseo, 535 F.2d 752, 754-55 (2d. Cir. 1975), urges that this Court take a flexible stance with regard to the ADA's prerequisites and also argues that her failure to exhaust should be excused because the Defendants did not notify her of the statutory prerequisites to suit.
With regard to Plaintiff's first contention, the United States Supreme Court has recently reaffirmed its view that strict adherence to procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law.National R.R. Passenger Corp. v. Morgan, 376 U.S. 101, 108, 122 S. Ct. 2061, 153 L. Ed. 2d 106 (2000) (Title VII discrimination) ( quoting Mohasco Corp. v. Silver, 447 U.S. 807, 826, 100 S. Ct. 2486, 65 L. Ed. 2d 532 (1980)). Plaintiff cites no authority to support her further argument that the County Defendants had some duty to apprise her of the administrative prerequisites to suit under the ADA and no such duty is expressed or implied in the statute. Furthermore, it is disingenuous of Plaintiff to claim she should be excused due to her ignorance of the law when, prior to commencing this action, she brought an ADA claim in the Northern District of New York and that Court specifically advised her of the mechanics of, and the consequences for failing to exhaust, the ADA's administrative prerequisites. Curto, 248 F. Supp. 2d at 144-45.
Because Plaintiff apparently concedes that she did not exhaust her administrative remedies under the ADA, dismissal of her ADA claim as to the County Defendants is warranted.
(c). 42 U.S.C. § 1983
Section 1983 of Title 42 of the United States Code provides that:
Every person who, under color of any statute, ordinance, regulation, custom or usage, of any State . . ., subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
"By the plain terms of § 1983, two — and only two — allegations are required in order to state a cause of action under the statute. First, plaintiff must allege that some person has deprived him of a federal right. Second, he must allege that the person who has deprived him of that right acted under color of state or territorial law." Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 64 L. Ed. 2d 572 (1980).
While Plaintiff identifies section 1983 as a basis for this Court's jurisdiction over her case (2Am. Compl., p. 1), she does not mention section 1983 anywhere else in her pleading. The County Defendants move to dismiss on the ground that, even assuming Plaintiff intended to assert such a claim, she fails to allege a constitutional deprivation.
Although the Second Amended Complaint does generally allege that Plaintiff was deprived of due process, equal privileges and equal protection, it fails to explain how and fails to link these purported deprivations to any particular Defendant or conduct. In her responding memorandum, Plaintiff argues that the deprivations arise from ADA Parker's decision not to prosecute Gasper for his violation(s) of an order of protection (Docket No. 18, pp. 18-21). As has already been determined, such decisions fall within the Eleventh Amendment bar and/or absolute prosecutorial immunity and are not actionable. See Gan, 996 F.2d at 531.
Plaintiff erroneously relies on Gan to argue that as a complaining witness, she has a constitutional right to protection by law enforcement. Gan reached no such conclusion and the Second Circuit has not imposed a duty to protect on state actors outside of certain custodial relationships. See Cruz v. New York City Hous. Auth., 03 Civ. 8031, 2004 U.S. Dist. LEXIS 17793, at *23-24 (S.D.N.Y. Sept. 3, 2004). In any event, the Second Amended Complaint does not allege a failure to protect or any harm resulting therefrom.
The Second Amended Complaint also alleges that ADA Goldstein was acting on behalf of the Erie County District Attorney's Office and District Attorney Frank Clark when she determined, without review, that ADA Parker properly handled Gasper's prosecution. In other words, the allegations are against Goldstein acting in her official capacity and are equivalent to a suit against the entity. DeCarlo v. Fry, 141 F.3d 56, 61 (2d Cir. 1998). To the extent Plaintiff intends to premise a section 1983 claim on these allegations, they are insufficient to maintain a claim.
It is well-settled that to state a section 1983 claim against a municipality or a municipal division, a plaintiff must allege that a municipal custom or policy caused a deprivation of her constitutional rights. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). However, a municipal policy cannot be inferred from a single act or omission of a supervisory employee absent factual allegations of a pattern and practice of such conduct, such as a persistent failure to discipline or repeated failures to conduct meaningful investigations of alleged constitutional violations. Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir. 1995); see also, Giaccio v. City of New York, 04 Civ. 3652, 2005 U.S. Dist. LEXIS 642, at *21 (S.D.N.Y. Jan. 19, 2005). "The mere assertion . . . that a municipality has . . . a custom or policy is insufficient in the absence of allegations of fact tending to support, at least circumstantially, such an inference." Dwares v. City of New York, 985 F.2d 94, 100 (2d Cir. 1993); see also, Dean v. New York City Transit Auth., 297 F. Supp. 2d 549, 555 (E.D.N.Y. 2004) (wholly conclusory allegations of the existence of a municipal custom or policy are insufficient under general pleading requirements). Where, as here, a plaintiff does not identify the nature of the purported policy and alleges nothing more than a single failure to discipline or investigate a complaint that may or may not have alerted the municipality to a constitutional violation, a policy or custom is not implicated.
(d). 42 U.S.C. §§ 1985 and 1986
To state a claim under section 1985, a plaintiff must demonstrate:
(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States.United Brotherhood of Carpenters Joiners, Local 610 v. Scott, 463 U.S. 825, 828-29, 103 S. Ct. 3352, 77 L. Ed. 2d 1049 (1983). To prove a conspiracy in violation of section 1985, a plaintiff must show "some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action." Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S. Ct. 1790, 29 L. Ed. 2d 338 (1971).
Here, Plaintiff alleges that the Defendants engaged in a conspiracy based not on her race, but because of her status as a crime victim who is female and/or older and/or of a lower social economic status. The County Defendants argue that the Supreme Court has rejected each of these categories as a protected class for purposes of section 1985. This Court finds it unnecessary to reach that argument, as there are more fundamental defects in Plaintiff's pleading that require dismissal of her claim.
Although this Court declines to engage in a full analysis of Plaintiff's argument, it notes with disapproval the County's misstatement of authority in its memorandum. For example, contrary to Defendants' assertion, the Supreme Court in Bray v. Alexandria Women's Health Clinic, 506 U.S. 263 (1993) expressly found it "unnecessary to decide whether [women in general] is a qualifying class under § 1985(3)." Id. at 269. This is not the only instance in which the County's sweeping statements are not supported by the cited authority.
First, Plaintiff has not alleged, except in the most conclusory terms, the existence of a conspiracy. It is well-settled that a plaintiff "should made an effort to provide some details of time and place and the alleged effect of a conspiracy. Thus, complaints containing only conclusory, vague or general allegations that the defendants have engaged in a conspiracy to deprive the plaintiff of his constitutional rights are properly dismissed; diffuse and expansive allegations are insufficient, unless amplified by specific instances of misconduct." Dwares, 985 F.2d at 99-100 (2d Cir. 1993) (internal citations and punctuation omitted); see also, Straker v. Metropolitan Transit Auth., 333 F. Supp. 2d 91, 99-102 (E.D.N.Y. 2004) (collecting cases post-Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S. Ct. 992, 152 L. Ed. 2d 1 (2002), and concluding that, while a heightened pleading standard is not required in civil rights cases, "a claim that does not contain any supporting factual allegations cannot withstand a Rule 12(b)(6) motion"). Other than alleging that certain Defendants involved in Gasper's criminal prosecution spoke to one another, the Second Amended Complaint is devoid of any inference that the purpose of any communication was to deprive Plaintiff of constitutional rights, that any act in furtherance of such an agreement was ever taken, or that any actual deprivation or injury occurred. Moreover, no inference can be drawn from the pleading as to the existence of invidiously discriminatory animus. It is apparent that Plaintiff, who places herself in a multitude of classifications, is unable to discern any particular basis for the purported conspiracy against her. This conclusion is further buttressed by Plaintiff's allegation that "I was treated less favorably than other citizens complaints" (2Am. Compl., pp. 13-14); a limitless group of individuals that presumably includes males and females, young and old, rich and poor. A complaint that does not identify the basis upon which purported discrimination occurred does not give a defendant fair notice of what the claim is or on what grounds it rests, and therefore fails to meet even the minimal pleading requirements of Federal Rule of Civil Procedure 8(a)(2). See Swierkiewicz, 534 U.S. at 512. In short, Plaintiff's conclusory allegations, devoid of any supporting facts, fail to state a claim for relief.
Specifically, the Town Justice is alleged to have spoken to ADA Parker about the disposition of at least one charge, and Zittel, upon whose premises the offending conduct occurred, is alleged to have spoken to the ADA and perhaps to the Town Justice. Even accepting as true Plaintiff's belief that Zittel was advocating for Gasper, she does not allege, even in the most general terms, that ADA Parker or Justice Bender entered into an agreement with Zittel to violate Plaintiff's rights.
Section 1986 imposes liability on an individual who has knowledge of discrimination prohibited under section 1985. Hence, a section 1986 claim cannot exist absent a valid section 1985 claim. Graham v. Henderson, 89 F.3d 75, 82 (2d Cir. 1996) ( citing Mian v. Donaldson, Lufkin Jenrette, 7 F.3d 1085, 1088 (2d Cir. 1993)). Where, as here, Plaintiff has not adequately alleged the existence of a conspiracy which deprived her of a constitutional or federal statutory right, she cannot state a claim for relief under section 1986.
For all of the reasons stated above, the County Defendants' motion to dismiss is granted and the Second Amended Complaint against them is dismissed in its entirety.
C. The Town Defendants
1. Justice Bender
Justice Bender moves to dismiss the Second Amended Complaint as to her on the ground that she is absolutely immune from suit. Town justices of the State of New York enjoy the same absolute immunity from suits for damages arising out of their judicial acts as do judges of general jurisdiction. Tucker v. Outwater, 118 F.3d 930, 937 (2d Cir.), cert. denied, 522 U.S. 927 (1997). Thus, Justice Bender has immunity unless Plaintiff alleges the presence of one of the two recognized exceptions discussed above.
In her responding memorandum, Plaintiff argues that Justice Bender acted in an administrative capacity when she assigned Gasper a public defender, and acted outside her jurisdiction when she advised a state trooper that she would not enforce Plaintiff's order of protection and denied Plaintiff access to all of Gasper's criminal records. In this Court's view, determining whether a criminal defendant is entitled to a public defender, advising law enforcement personnel of a judicial decision they may be called upon to execute and evaluating whether criminal records should be sealed and/or disclosed are all judicial acts integral to the criminal judicial process. In short, Plaintiff does not allege that Justice Bender acted in "the clear absence of all jurisdiction," but rather, takes issue with the correctness of her actions. These allegations are not sufficient to divest Justice Bender of absolute judicial immunity and all claims against her are therefore dismissed. 2. The Federal Claims
Plaintiff cites no authority to the contrary and this Court is unaware of any authority that would support her position.
Once again, Plaintiff argues that immunity protects Bender only from claims for monetary relief, not those for prospective injunctive relief. While Plaintiff is correct in that regard, no injunctive relief can be had where Plaintiff fails to state a claim for a constitutional deprivation.
(a). The Age Discrimination Act
Although the remaining Boston Defendants characterize their motions as seeking complete dismissal, they do not acknowledge Plaintiff's claim under the Age Discrimination Act and do not move with regard to this claim.
The Age Discrimination Act is expressly identified in the First and Third causes of action against these Defendants.
On the other hand, Plaintiff does not allege that she exhausted her administrative remedies as is required to maintain a claim under the ADA.
This Court directs Plaintiff to file documentation demonstrating that she exhausted her administrative remedies with regard to the Boston Defendants within thirty (30) days of this Decision and Order. Failure to do so will result in dismissal of the ADA claim without further order of the Court.
(b). 42 U.S.C. § 1983
Plaintiff alleges that her due process, equal privilege and equal protection rights were violated when Clerk Kummer failed to produce records in response to a subpoena, and Attys Vacco and Metzger appealed a state court order directing disclosure of the Town of Boston Justice Court's records relating to Plaintiff's criminal complaint(s) against Gasper. In addition, Plaintiff claims that her privacy rights were violated when Atty Metzger provided records responsive to the state court's order to Justice Burns. None of these actions implicates a constitutional right.
Even were that not the case, all of the alleged conduct relates to decisions made or actions taken by Kummer, Vacco and Metzger in the course of carrying out their official duties on behalf of the Town of Boston and its Justice Court. Therefore, a claim cannot be maintained against any of these Defendants under section 1983 unless Plaintiff sufficiently alleges that an official policy or custom caused a constitutional deprivation. For the reasons stated at Point III(B)(2)(c), supra, Plaintiff's allegation that the Boston Defendants "subjected me to a continuing/continuous practice and/or policy of denying and/or obstructing justice for individuals/victims who are female and/or older and/or lower social/economic class" (2Am. Compl., p. 11) is not sufficient to meet even the minimal notice pleading requirements applicable to her claims., (c). 42 U.S.C. §§ 1985 and 1986
Plaintiff's reliance on Gebser v. Lago Vista, 524 U.S. 274 (1998) in support of her argument that municipal liability is established here is misplaced. Gebser involved the threshold for liability under Title IX, not section 1983, and is not relevant to this determination.
Plaintiff does raise two issues in her response of which the Boston Defendants should take heed. First, although it ultimately has no bearing on the outcome of this motion, the Boston Defendants incorrectly assert that Plaintiff is required to plead a prima facie case. See, Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S. Ct. 992, 152 L. Ed. 2d 1 (2002). Second, like Plaintiff, this Court finds it puzzling that with the plethora of section 1983 and 1985 decisions in this Circuit, Defendants rely, to a significant extent, on authority that is not controlling here.
Plaintiff's section 1985 and 1986 claims against the Boston Defendants fail for precisely the same reasons as do her claims against the County Defendants. For all of the reasons stated at Point III(B)(2)(d), supra, dismissal is warranted. 3. The State Law Claims
The Second Amended Complaint alleges negligent or intentional infliction of emotional distress by all Boston Defendants and negligent supervision of Bender and Kummer by the Town of Boston. Plaintiff also generally alleges violations of the New York State Constitution, Human Rights Law and Public Officers Law.
Justice Bender has absolute immunity with regard to this claim, as well.
Although the Boston Defendants purport to move for dismissal all causes of action in this case and acknowledge the existence of at least some of Plaintiff's state law claims in the accompanying attorney's affirmation, their memoranda present no arguments for dismissal of the state law claims.
However, a district court may decline to exercise supplemental jurisdiction over state law claims in certain circumstances, one being where all federal claims against the defendants have been dismissed. 28 U.S.C. § 1367(c)(3). See First Capital Asset Mgmt, Inc. v. Satinwood, Inc., 385 F.3d 159, 183 (2d Cir. 2004) ("If the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well.") (internal quotation and alteration marks omitted).
In the event that Plaintiff's ADA claim against the Boston Defendants is dismissed, this Court will decline to exercise supplemental jurisdiction over the state law claims and the action will be dismissed in its entirety as to the Boston Defendants. Otherwise, these claims will go forward.
D. John Zittel
Plaintiff's sole allegations against Defendant Zittel are that she believes Zittel contacted Justice Bender on Gasper's behalf and knows that Zittel contacted ADA Parker on Gasper's behalf (2Am. Compl., pp. 13-15).
1. 42 U.S.C. §§ 1983, 1985 and 1986
Defendant Zittel moves to dismiss the civil rights claims against him on the ground that Plaintiff has not alleged and cannot allege that he acted "under color of state law" to deprive her of a constitutional right. Plaintiff does not dispute that state action is a required element of a claim for a constitutional violation or that Zittel is a private actor. However, she argues in her response that Zittel willfully collaborated with a state actor and she can therefore maintain her claims. This Court finds that no such collaboration is alleged or inferred in the Second Amended Complaint and, therefore, dismissal of the section 1983, 1985 and 1986 claims against Zittel is warranted.
Because Zittel is a private actor, Plaintiff must allege the existence of "a sufficiently close nexus between the State and the challenged action of the [private actor] so that the action of the latter may be fairly treated as that of the State itself."Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351, 95 S. Ct. 449, 42 L. Ed. 2d 477 (1974). Plaintiff may meet this burden by alleging that the private actor willingly participated in a joint activity with the state, see Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 941, 102 S. Ct. 2744, 73 L. Ed. 2d 482 (1982), or that the state compelled or significantly encouraged the challenged private action, Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S. Ct. 2777, 73 L. Ed. 2d 534 (1982). See also, Croy v. A.O. Fox Memorial Hosp., 68 F. Supp. 2d 136, 142 (N.D.N.Y. 1999). "The purpose of this requirement is to assure that constitutional standards are invoked only when it can be said that the State is responsible for the specific conduct of which the plaintiff complains." Blum, 457 U.S. at 1004 [emphasis in original].
Where, as here, a plaintiff contends that a private party has become a 'state actor' based on a conspiracy with state officials, she must allege the existence of: "(1) an agreement between a state actor and [the] private party; (2) to act in concert to inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal causing damages."Ciambriello v. County of Nassau, 292 F.3d 307, 324-25 (2d Cir. 2002).
The only conduct attributed to Zittel is his contacting one or two officials on Gasper's behalf. It is not alleged that those contacts resulted in an agreement, that the agreement was to deprive Plaintiff of her rights, that anyone acted in furtherance of that agreement or that Plaintiff suffered any injury. Advocacy by Zittel, which is what is alleged, does not equate to an agreement even upon the most favorable reading of the Second Amended Complaint.
As has been fully discussed above, there can be no claim under section 1986 absent a viable claim under section 1985. Accordingly, all civil rights claims against Zittel are dismissed.
2. The Age Discrimination Act
As Plaintiff's former employer, Defendant Zittel initially misinterpreted Plaintiff's Age Discrimination Act ("ADA") claim as one brought under the Age Discrimination in Employment Act ("ADEA"). One of the bases Zittel argues for dismissal is Plaintiff's failure to exhaust her administrative remedies, a requirement of both the ADA and ADEA.
While Plaintiff is quick to point out Zittel's misreading of the Second Amended Complaint, she fails to address, and presumably concedes, that she did not exhaust her administrative remedies with regard to Zittel. Accordingly, the ADA claim against Zittel is dismissed.
Having been apprised of the exhaustion requirement inCurto, 248 F. Supp. 2d 132, and the issue having previously been raised by the County Defendants in this action, Plaintiff should be well aware that her inability to demonstrate exhaustion is fatal to her ADA claim.
3. The State Law Claims
Like the Boston Defendants, Zittel does not address Plaintiff's state law claims in his memorandum. However, in light of the fact that all federal claims against Zittel are dismissed, this Court declines to exercise jurisdiction over the state law claims against him, pursuant to 28 U.S.C. 1367(c)(3).
E. Plaintiff's Motions for Costs and Sanctions Against the Boston Defendants and Zittel
Plaintiff seeks the cost of service upon the Boston Defendants and Zittel, the imposition of sanctions, and default judgment against each of these Defendants based upon their failure to acknowledge or waive service of process. In support of her motions, Plaintiff makes the following assertions:
• Plaintiff delivered all documents required for service, along with a waiver form and postage paid return envelope, by certified mail, to each of the Boston Defendants in January 2004, and to John Zittel at some unspecified time prior to March 2004. Plaintiff received signed return receipts evidencing acceptance of delivery by each of these Defendants. None of the Defendants waived or acknowledged service or responded to the Complaint.
• An amended complaint was served upon each of the Boston Defendants and Zittel by the U.S. Marshal by first class mail in March 2004. None of the mailings were returned as undeliverable and none of these Defendants acknowledged service.
• Because of the Defendants' inaction, Plaintiff moved for an extension of time to serve these Defendants and an order directing re-service by the U.S. Marshal, which motion was granted by this Court.
• The U.S. Marshal again effected service by mail in September 2004. Again, none of the mailings were returned as undeliverable and the Defendants did not return an acknowledgment within thirty days thereafter.
• In early November 2004, Plaintiff retained a process server to effect service.
The Boston Defendants and Zittel have submitted the affirmations of their respective attorneys and a memorandum of law in response to Plaintiff's motions. The responses are absolutely silent with respect to the foregoing assertions and this Court therefore concludes that Defendants concede they were properly served by Plaintiff pursuant to Fed.R.Civ.P. 4(3) and N.Y. Civ. Prac. L. R. § 312-a, but failed to acknowledge service, and that they were again properly served by the U.S. Marshal in March 2004 and in September 2004, but failed to acknowledge service within 30 days thereafter.
Defendant Zittel, who did not enter an appearance in this matter until December 17, 2004, is directed to reimburse Plaintiff $58.00 for her costs of service upon him.
Zittel does not contest the accuracy or reasonableness of this amount in his response (Docket No. 61, ¶ 23).
The Boston Defendants are in a somewhat different posture. They did, in fact, each file a motion to dismiss on November 3, 2004 (Docket Nos. 33-38). Plaintiff did not obtain summonses for service by her process server until November 5, 2004 (Docket No. 60, Ex. H). By that time, service was unnecessary. Accordingly, this Court will not grant Plaintiff her costs for the service effected on November 9, 2004. That being said, the Boston Defendants do not deny that Plaintiff herself properly served them in January 2004. Plaintiff, who is not proceeding in forma pauperis, incurred costs for service by the U.S. Marshal of $8.00 per Defendant for each mailing ( see Docket 48, Ex. A). Accordingly, the six Boston Defendants are directed to reimburse Plaintiff $16.00 each, for a total of $96.00.
Plaintiff's request for a default judgment against the Boston Defendants and Zittel for their failure to appear is denied as moot. Plaintiff's request for the imposition of further sanctions is also denied.
V. CONCLUSION
For the foregoing reasons, Plaintiff's Complaint must be dismissed in its entirety as to the State Defendants, the County Defendants, Defendant Bender and Defendant Zittel. Plaintiff's claims under 42 U.S.C. §§ 1983, 1985 and 1986 are dismissed as to Defendants Town of Boston, Town of Boston Justice Court, Kummer, Vacco and Metzger. Plaintiff is directed to file proof that she has exhausted her remedies under the ADA within thirty (30) days from the date of this Decision and Order. Failure to do so will result in automatic dismissal of all remaining claims against the Town of Boston, Town of Boston Justice Court, Kummer, Vacco and Metzger. Plaintiff's motion for reimbursement of costs of service is granted as to John Zittel in the amount of $58.00 and the Boston Defendants in the amount of $96.00 (or $16.00 each).
ORDERS
IT HEREBY IS ORDERED, that the Motion to Dismiss of the Erie County District Attorney's Office, Frank Clark, Brian Parker and Amy Goldstein (Docket No. 9) is GRANTED; the Motion to Dismiss of Defendants Christopher J. Burns and David C. Caywood (Docket No. 15) is GRANTED; Defendant Debra Bender's Motion to Dismiss (Docket No. 34) is GRANTED; and John Zittel's Motion to Dismiss (Docket No. 45) is GRANTED.
FURTHER, that the Motions to Dismiss of Defendants Michael Metzger (Docket No. 33), Wendy Kummer (Docket No. 35), Kelly Vacco (Docket No. 36), Town of Boston (Docket No. 37), and Town of Boston Justice Court (Docket No. 38) are GRANTED in part and DENIED in part.
FURTHER, that Plaintiff's Motions for Reimbursement for Cost of Service and Imposition of Sanctions and Default Judgment (Docket Nos. 47 and 48) are GRANTED in part and DENIED in part.
FURTHER, that Defendant Zittel shall reimburse Plaintiff $58.00 and the Boston Defendants shall reimburse Plaintiff $16.00 each, for a total of $96.00, for costs of service.
FURTHER, that the Clerk of the Court is directed to take the necessary steps to terminate Christopher J. Burns, David C. Caywood, the Erie County District Attorney's Office, Frank Clark, Brian Parker, Amy Goldstein, Debra Bender and John Zittel as Defendants in this action.
FURTHER, that Plaintiff shall file proof of administrative exhaustion of her Age Discrimination Act claim against the Boston Defendants within 30 days from the date of this Decision and Order and, in the event she fails to do so, the remainder of her claims against the Defendants Town of Boston, Town of Boston Justice Court, Kummer, Vacco and Metzger will be dismissed without further Court Order and this case closed.
SO ORDERED.