Opinion
5:98-CV-1882 (FJS/GLS).
December 27, 2001
A. J. BOSMAN, ESQ., OFFICE OF A. J. BOSMAN, Utica, New York, Attorneys for Plaintiff.
LISA ULLMAN, AAG, OFFICE OF THE NEW YORK, STATE ATTORNEY GENERAL The Capitol, Albany, New York, Attorneys for Defendants Cornacchia, Fitzgerald, Gabriel, Porter, New York, State Canal Corporation and New York State Thruway Authority.
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Plaintiff commenced this action against Defendants in December 1998 and filed an amended complaint on August 1, 2000. In her amended complaint, Plaintiff asserts eleven causes of action, all of which arise from Mr. Zillioux's illicit sexual relationship with her during the time that he was employed as a canal structure operator at Lock 18 with the New York State Canal Corporation ("Canal Corporation"), a subsidiary of the New York State Thruway Authority ("Thruway Authority"). She alleges violations of her First, Fourth, Fifth, Ninth and Fourteenth Amendment rights as well as violations of the Fair Labor Standards Act ("FLSA") and New York Labor Law § 133 pursuant to 42 U.S.C. § 1983 and state law claims for assault and battery, defamation and negligence.
Plaintiff seeks (1) compensatory damages in excess of $5,000,000; (2) punitive damages in excess of $5,000,000; (3) reasonable attorneys' fees; (4) a declaratory judgment that Defendants violated Plaintiff's constitutional and statutory rights; (5) injunctive relief requiring Defendants to (a) revoke their acceptance of Mr. Zillioux's resignation and terminate him from employment, recording the reason for such termination within the records of the Canal Corporation, and adopt similar policies for any other child molesters; (b) provide supervised volunteer programs or adopt policies or take measures to provide children with a safe environment at the several New York State Canal system public access sites; and (c) require the Thruway Authority and the Canal Corporation to adopt rules, supervision and oversight measures to insure that rules affecting the safety of children are enforced. See Amended Complaint at "Relief Demanded" Clause.
Presently before the Court is the summary judgment motion of Defendants Cornacchia, Fitzgerald, Gabriel, Porter, the Canal Corporation and the Thruway Authority (collectively "Defendants"). This motion was scheduled for oral argument on November 28, 2001 in Albany, New York. However, since Plaintiff's counsel failed to appear at oral argument due to her confusion about the Court's location on that date, the Court decided that it would determine the matter based upon the parties' submissions. The Court has carefully reviewed the parties' submissions and the applicable law and the following constitutes the Court's decision with respect to the pending motion.
II. BACKGROUND
Plaintiff first began visiting Lock 18 of the New York State Canal System, located in Utica, New York, in the summer of 1996. She alleges that during that summer she was alone with Mr. Zillioux on one occasion, at which time she sat on his lap. See Transcript of Deposition of Lynne Rose, dated February 9, 2000 ("Rose Tr."), at 25-26. Plaintiff told no one about this incident. See id. at 73. In the summer of 1997, Plaintiff alleges that she visited Lock 18 almost every day when Mr. Zillioux was working and helped him with odd jobs at the lock. See id. at 20. During that summer, Plaintiff was seen in the lockhouse, which is a structure containing an office, a bathroom and storage space, on several occasions. See id. at 51. Plaintiff alleges that Defendants Porter and Gabriel told Plaintiff and Mr. Zillioux that Plaintiff was not permitted in the lockhouse. See id. at 55; Transcript of Deposition of James Zillioux, dated March 1, 2000 ("Zillioux Tr."), at 144-148. However, Plaintiff and Mr. Zillioux ignored those orders.
It is undisputed that in mid to late August 1997, sexual contact between Plaintiff and Mr. Zillioux occurred for the first time. See Rose Tr. at 32-33. Plaintiff did not cry out for help, nor did she tell anyone what had occurred. See id. at 38, 40. She returned to Lock 18 the next week when she knew that Mr. Zillioux would be there. See id. at 41. Subsequent occurrences of physical and sexual contact occurred, generally in the lockhouse and at least once in Mr. Zillioux's car and always when Mr. Zillioux was the only employee at Lock 18. See id. at 79, 83. Plaintiff never cried for help during these incidents, see id. at 84, and neither Plaintiff nor Mr. Zillioux believed that anyone witnessed these incidents. See id. at 83; Zillioux Tr. at 141-43, 161. Moreover, until Plaintiff's mother reported the matter to the police, neither Plaintiff nor Mr. Zillioux told anyone.
Plaintiff's parents were aware that she was spending time at Lock 18 with Mr. Zillioux. On one occasion, Mr. Zillioux told Plaintiff that his supervisors would not permit her to hang around Lock 18, and Plaintiff's mother called him to complain that Plaintiff should not be forbidden to go there. See Zillioux Tr. at 146. In addition, on one occasion when Plaintiff's mother ordered her not to go to Lock 18, she went any way. See Rose Tr. at 71. Plaintiff's parents also knew that Mr. Zillioux was driving Plaintiff home from Lock 18, see id. at 77-78; they allowed him to take her to a county fair, see id. at 79; and they even invited him to their home for a barbeque approximately two days before he was arrested. See id. at 104-06; Zillioux Tr. at 115, 170-71.
Mr. Zillioux was arrested on September 13, 1997, and charged with committing sodomy in the third degree. Defendant Fitzgerald, in his capacity as Director of Labor Relations for the Thruway Authority, immediately issued a Notice of Discipline, which served to immediately suspend Mr. Zillioux from his job and constituted notice that the Thruway Authority would seek his termination. The Thruway Authority waited for resolution of the criminal charges before proceeding further. On June 29, 1998, Mr. Zillioux pled guilty to sexual abuse in the second degree, a misdemeanor. He was sentenced to three years probation and was assessed a $1,000 fine and a $90.00 surcharge. On July 17, 1998, Mr. Zillioux signed a settlement agreement in which he agreed to resign from the Canal Corporation and executed a letter of resignation shortly thereafter.
Had Mr. Zillioux not agreed to resign, an arbitration hearing would have been required under the collective bargaining agreement before the Thruway Authority could have terminated him. See Affidavit of Thomas Fitzgerald, sworn to October 5, 2001, at ¶¶ 10, 11, 14, 15.
With this factual backdrop in mind, the Court will address each of Plaintiff's claims in turn.
III. DISCUSSION
The New York State Attorney General asserts that he does not represent Mr. Zillioux in either his official or individual capacity. Plaintiff, however, contends that the Attorney General represents Mr. Zillioux in his official capacity. This argument is academic. Plaintiff's claims against the individuals in their official capacity are, in reality, claims against the Thruway Authority and the Canal Corporation, which Plaintiff has also sued. Therefore, the Court dismisses Plaintiff's claims against the individuals in their official capacity as redundant. See Willikas v. Harder, 67 F. Supp.2d 82, 83-84 (N.D.N.Y. 1999).
Plaintiff's counsel asserts that although she has attempted to serve Mr. Zillioux in his individual capacity, she has been unable to locate him until recently. See Affirmation of A.J. Bosman, dated September 10, 2001, at ¶ 6. She states that she believes he is presently residing at the Holiday Hotel on West Schuyler Street in Utica, New York. See id. Therefore, she requests that the Court reissue the summons and, because Plaintiff has been granted leave to proceed in forma pauperis, direct the U.S. Marshals to complete personal service on Mr. Zillioux at the Holiday Hotel or wherever he can be found. In the alternative, Plaintiff's counsel states that she will serve the summons and amended complaint. See id. at ¶ 6 and WHEREFORE clause.
The Court denies Plaintiff's request for additional time in which to serve Mr. Zillioux. Plaintiff filed her amended complaint on August 1, 2000, thus, she has had more than one year to locate Mr. Zillioux and to request that the Court reissue a summons for him. The initial summons for Mr. Zillioux was issued on October 20, 2000. On December 11, 2000, the return receipt for the unexecuted summons was filed with the Court. See Dkt. No. 57. On January 18, 2001, a second summons was issued for Mr. Zillioux. On February 28, 2001, that summons was returned unexecuted. See Dkt. No. 60. In April 2001, Plaintiff's counsel sent a letter to Magistrate Judge Sharpe advising him that she had attempted to serve Mr. Zillioux but that she believed that he had moved out of the area and she would make an effort to locate him. See Dkt. No. 63. Until Plaintiff's counsel responded to the pending motion, the Court had not received any further correspondence from Plaintiff about her efforts to serve Mr. Zillioux. In light of the numerous opportunities the Court has provided to Plaintiff to serve Mr. Zillioux, as well as the procedural posture of this case, the Court denies Plaintiff's request for another opportunity to serve Mr. Zillioux. Accordingly, the Court dismisses Plaintiff's claims against Mr. Zillioux without prejudice. See Fed.R.Civ.P. 4(m).
B. Plaintiffs' § 1983 claims
Plaintiff concedes in her papers in opposition to Defendants' motion that she has no Fifth Amendment claim against Defendants. Therefore, she consents to the dismissal of this claim.
"'Section 1983 imposes liability on anyone who, under color of state law, deprives a person "of any rights, privileges, or immunities secured by the Constitution and laws."'" Kia P. v. McIntyre, 235 F.3d 749, 755 (2d Cir. 2000) (quoting K A Radiologic Tech. Servs., Inc. v. Commissioner of Dep't of Health, 189 F.3d 273, 280 (2d Cir. 1999) (quoting Blessing v. Freestone, 520 U.S. 329, 340, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997))).
1. Plaintiff's § 1983 claims based upon Defendants' alleged violations of the Fair Labor Standards Act and New York Labor Law § 133
Section 1983 provides, in pertinent part, that
Every person who, under color of any statute, ordinance, Sregulation, custom or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured . . .42 U.S.C. § 1983.
Neither Plaintiff nor Defendants cite any case law to support their respective positions as to whether either the FLSA or New York Labor Law § 133 applies to the facts of this case or what factors a plaintiff must establish to prove a violation of either of these statutes. Moreover, Plaintiff does not explain how a violation of either of these statutes constitutes a violation of Plaintiff's constitutional or federal statutory rights for purposes of § 1983. Her reliance on § 133 of New York Labor Law is clearly misplaced because "a violation of state law is not cognizable under § 1983." Pollnow v. Glennon, 757 F.2d 496, 501 (2d Cir. 1985) (citing Davis v. Scherer, 468 U.S. 183, ___, 104 S.Ct. 3012, 3019 (1984)); see also Young v. County of Fulton, 160 F.3d 899, 902 (2d Cir. 1998) ("'[A] violation of state law [does not] give [plaintiff] a § 1983 claim . . .'" (quoting Robison v. Via, 821 F.2d 913, 922 (2d Cir. 1987))). Likewise, it is not enough for Plaintiff to establish a violation of the FLSA because to give rise to a § 1983 claim based upon a violation of a federal statute, "[a] plaintiff must show that the violation of the federal law also amounts to the violation of a federal right possessed by the plaintiff." Wesley Health Care Ctr., Inc. v. DeBuono, 244 F.3d 280, 283 (2d Cir. 2001).
Plaintiff does not state which part of New York Labor Law § 133 Defendants allegedly violated. However, based upon the nature of her claims, it appears that she is relying upon subparagraph a, which provides, in pertinent part, that "[n]o minor under sixteen years of age shall be employed in or assist in: a. painting or exterior cleaning in connection with the maintenance of a building or structure; . . ." N.Y. Labor Law § 133 (McKinney 1986 Supp. 2001).
In her first cause of action, Plaintiff asserts that
[a]cting under color of law and pursuant to the authority, policies, practices, and/or custom of the Canal Corporation, Defendants Zillioux, Porter, Cornacchia, and Gabriel solicited and/or otherwise allowed the assistance and labor of a minor child without compensation in violation of Plaintiff's substantive Due Process rights under the Fifth and Fourteenth Amendments to the United States Constitution, depriving the Plaintiff of 1) property rights by failing to compensate her for labor as solicited by Defendant Zillioux and accepted by all other Defendants 2) Violation of Plaintiff's right to equal protection of the labor and employment laws of the State of New York, Labor Law Section 133 and the Fair Labor Standards Act, violating Plaintiff's rights as protected under 42 U.S.C. § 1983.See Amended Complaint at ¶ 27.
Plaintiff has failed to come forward with any facts to support her argument that Defendants' alleged violations of the FLSA or § 133 of New York Labor Law impinged upon her federal constitutional or statutory rights. Accordingly, the Court grants Defendants' motion for summary judgment with respect to Plaintiff's § 1983 claims to the extent they are based upon violations of the FLSA and New York Labor Law § 133.
To withstand a summary judgment motion, Plaintiff cannot rest upon the conclusory allegations in her amended complaint that somehow Defendants' alleged violations of the FLSA and § 133 of New York Labor Law impinged upon her federal constitutional right to equal protection. See Fed.R.Civ.P. 56(e).
2. Plaintiff's § 1983 claims based upon Defendants' alleged violation of her constitutional rightsa. Plaintiff's First Amendment claim
Plaintiff asserts that the evidence concerning a violation of her First Amendment right is grounded in her right to say "No" to a state canal worker who attempts to sexually molest her. Furthermore, Plaintiff claims that she was deprived of her right to refuse to come to work following the first incident of illicit sexual conduct because she was fearful and intimidated by Mr. Zillioux and his threat about "what would the kids at school think?"
This claim need not detain the Court for long. Although the First Amendment is mentioned in Plaintiff's amended complaint, there are no specific factual allegations that would support such a claim. Moreover, Plaintiff cites no case law to support her proposition that her right to say "No" under these circumstances implicates the First Amendment. Accordingly, the Court grants Defendants' motion for summary judgment with respect to Plaintiff's First Amendment claim.
b. Plaintiff's Fourth Amendment claim
Plaintiff asserts that her Fourth Amendment claim is based upon her allegation that Mr. Zillioux, while working in uniform and on Canal and Thruway Authority property, physically restrained or seized her while he sexually assaulted her.
Plaintiff did not cite any case law applying the Fourth Amendment in this context, nor did the Court's research uncover any. Moreover, even a cursory review of Plaintiff's Fourth Amendment claim reveals that this claim is, in effect, the same as her Fourteenth Amendment substantive due process claim. Accordingly, the Court grants Defendants' motion for summary judgment with respect to Plaintiff's Fourth Amendment claim.
c. Plaintiff's Ninth Amendment claim
Plaintiff interprets the Ninth Amendment as recognizing a right which Plaintiff feels Defendants violated — her right to privacy and bodily integrity as construed through her Fourteenth Amendment rights. Although Plaintiff acknowledges that there is no independent constitutional protection that derives from the Ninth Amendment to support a § 1983 claim, she, nonetheless, asserts that this does not mean that the Ninth Amendment is not applicable to her as a form of construction of her Fourteenth Amendment rights.
Plaintiff's argument has no merit. Courts that have addressed the issue of whether the Ninth Amendment can serve as a basis for a § 1983 claim have unanimously held in the negative. As the court explained in Strandberg v. City of Helena, 791 F.2d 744 (9th Cir. 1986), although
[i]t has been argued that the ninth amendment protects rights not enunciated in the first eight amendments[,] . . . the ninth amendment has never been recognized as independently securing any constitutional right, for purposes of pursuing a civil rights claim. . . . The Supreme Court has repeatedly voiced concern that a section 1983 claim be based on a specific constitutional guarantee.Id. at 748 (internal citations and citations omitted).
See also Gibson v. Matthews, 926 F.2d 532, 537 (6th Cir. 1991) (dismissing the plaintiff's Ninth Amendment claim on the ground that "the ninth amendment does not confer substantive rights in addition to those conferred by other portions of our governing law"); DeLeon v. Little, 981 F. Supp. 728, 734 (D.Conn. 1997) (holding that "'the [ Ninth Amendment] does not guarantee any constitutional right sufficient to support a claim under 42 U.S.C. § 1983.'" (quotation omitted)); Mann v. Meachem, 929 F. Supp. 622, 634 (N.D.N.Y. 1996) (dismissing the plaintiff's § 1983 claim to the extent that it was based upon a violation of the Ninth Amendment because "[t]he Ninth Amendment is recognized as a rule of construction and does not protect any specific right." (citation omitted)); Rini v. Zwirn, 886 F. Supp. 270, 289 (E.D.N.Y. 1995) (holding that "[n]o independent constitutional protection is recognized which derives from the Ninth Amendment and which may support a § 1983 cause of action." (citations omitted)).
Accordingly, the Court grants Defendants' motion for summary judgment with respect to Plaintiff's Ninth Amendment claim.
d. Plaintiff's Fourteenth Amendment substantive due process claim
"'[T]he core purpose of § 1983 is "to provide compensatory relief to those deprived of their federal rights by state actors."'" Kia P., 235 F.3d at 755 (quoting Hardy v. New York City Health Hosps. Corp., 164 F.3d 789, 795 (2d Cir. 1999) (quoting Felder v. Casey, 487 U.S. 131, 141, 108 S.Ct. 2302, 101 L.Ed.2d 123 (1988))). "'Our first inquiry, therefore, is whether the actions alleged by the plaintiffs come within the definition of "under color of" [state] law.'" Id. (quoting Carlos v. Santos, 123 F.3d 61, 65 (2d Cir. 1997) (quoting 42 U.S.C. § 1983)).
In this regard, "'[t]he traditional definition of acting under color of state law requires that the defendant in a § 1983 action have [sic] exercised power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.'" Id. (quoting [ Carlos, 123 F.3d at 65] (quoting, inter alia, West v. Atkins, 487 U.S. 42, 49, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988) (other citations and internal quotation marks omitted))). "Mere employment by a state or municipality does not automatically mean that a defendant's actions are taken under the color of state law." Kern v. City of Rochester, 93 F.3d 38, 43 (2d Cir. 1996) (citing Polk County v. Dodson, 454 U.S. 312, 319-20, 102 S.Ct. 445, 450-51, 70 L.Ed.2d 509 (1981)). However, "'[i]t is firmly established that a defendant in a § 1983 suit acts under color of state law when he abuses the position given to him by the State.'" Monsky v. Moraghan, 127 F.3d 243, 245 (2d Cir. 1997) (quoting West, 487 U.S. at 49-50, 108 S.Ct. at 2255-56 (emphasis added) (citation omitted)). Nonetheless, "[i]t is 'axiomatic that under "color" of law means "pretense" of law and that acts of officers in the ambit of their personal pursuits are plainly excluded.'" Id. (quoting Pitchell v. Callan, 13 F.3d 545, 547-48 (2d Cir. 1994) (citation and internal quotation marks omitted)). This pretense is absent "if the wrongful act is 'not in any way related to the performance of the duties of the state employee.'" Dang Vang v. Vang Xiong X. Toyed, 944 F.2d 476, 479 (9th Cir. 1991) (quoting Murphy v. Chicago Transit Authority, 638 F. Supp. 464, 467 (N.D.Ill. 1986) (citing Johnson v. Hackett, 284 F. Supp. 933, 937 (E.D.Pa. 1968))).
As the Eleventh Circuit has noted, "[w]hether a government employee is acting under color of law is not always an easy call, and the color of law analysis inevitably requires that we engage in line drawing. . . . It is only through a process of 'sifting facts and weighing circumstances' that we arrive at a correct determination." Griffin v. City of Opa-Locka, 261 F.3d 1295, 1303 (11th Cir. 2001) (internal citation and quotation omitted). When making this determination, a court should distinguish between cases in which a government employee "used his authority to create the opportunity to assault a victim" and those in which "the performance of a state actor's official duties merely facilitated the meeting of or development of a relationship between the state actor and another person; and the state actor later, on his own time and wholly independent of his official duties, commits an assault or other constitutional tort against that person." Id. at 1306 (citations omitted). Thus, a defendant acts under color of state law where he uses his government position to exert influence and physical control over the plaintiffs in order to sexually assault them. See Dang Vang, 944 F.2d at 480. To the contrary, "[a]bsent any actual or purported relationship between the [defendant's] conduct and his [official] duties . . ., the [defendant] cannot be acting under color of state law." Roe v. Humke, 128 F.3d 1213, 1216 (8th Cir. 1997) (citations omitted).
In the present case, there is no question that Mr. Zillioux's official duties at Lock 18 facilitated the development of a relationship between him and Plaintiff. Moreover, it is undisputed that at least some of the illicit sexual activity took place in the lockhouse, which was only intended for the use of employees. On the other hand, some of the sexual misconduct occurred in Mr. Zillioux's personal automobile, and his relationship with Plaintiff continued beyond his work environment; i.e., when he took Plaintiff, with her parents' permission, to a county fair. Furthermore, the illicit activity Mr. Zillioux engaged in with Plaintiff cannot be said to be related to the performance of his duties. See Dang Vang, 944 F.2d at 479. Therefore, under the totality of the circumstances of this case, the Court concludes that Mr. Zillioux was not acting under the color of state law when he sexually assaulted Plaintiff.
(1). Mr. Zillioux as a private citizen
Having concluded that Mr. Zillioux was acting as a private citizen when he engaged in illicit sexual conduct with Plaintiff, the Court will address the issue of whether Defendants may be held responsible for Mr. Zillioux's conduct.
Both parties rely upon the Supreme Court's decision in DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189 (1989), to support their respective positions as to whether Plaintiff's allegations implicate the Fourteenth Amendment's substantive due process protections. DeShaney involved the issue of whether local officials could be held liable for the conduct of private citizens. In that case, the plaintiff was a boy who was beaten and permanently injured by his father, with whom he lived. The defendants were social workers and other local officials who, although they had received complaints that the plaintiff's father was abusing him and had reason to believe that this was the case, did not act to remove the plaintiff from his father's custody. The plaintiff sued the defendants, claiming that their failure to act deprived him of his liberty in violation of the Due Process Clause of the Fourteenth Amendment.
The Supreme Court rejected this argument, noting that "nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors." Id. at 195 (emphasis added). Thus, unless the State affirmatively acts to create a special relationship between itself and one of its citizens, "the Due Process Clauses . . . confer no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual." Id. at 196 (citations omitted).
Relying upon DeShaney, Plaintiff asserts that a "special relationship" existed between her and the Canal Corporation. This claim must fail, however, because Plaintiff has neither identified the nature of the special relationship nor the manner in which the special relationship was created. Although she cites Pollock v. City of N.Y., 145 A.D.2d 550, 552 (2d Dep't 1988), which sets forth the elements required to find that a "special relationship" exists, Plaintiff does not explain how she has met these requirements except in a very conclusory manner. In sum, Plaintiff's entire argument, without explanation or any factual or legal support, is that the Canal Corporation assumed, through promises or actions, an affirmative duty to act on her behalf; that the Canal Corporation's agents knew that inaction could lead to harm; that there was some form of direct contact between the Canal Corporation's agents and her; and that she justifiably relied on the Canal Corporation's undertaking.
As was the case in DeShaney, Plaintiff has failed to establish that a "special relationship" exists. She offers no explanation as to what the Canal Corporation did to assume an affirmative duty on her behalf; how the Canal Corporation knew that inaction could lead to harm or how she justifiably relied upon the Canal Corporation's undertaking — whatever that undertaking was. Such conclusory allegations are insufficient to establish the existence of a special relationship between her and Defendants. Accordingly, the Court concludes that, to the extent that Plaintiff's Fourteenth Amendment substantive due process claim is based upon a special relationship, it fails.
Plaintiff also relies upon the Second Circuit's application of DeShaney in Dwares v. City of N.Y., 985 F.2d 94 (2d Cir. 1993), to support her position that Defendants violated her substantive due process rights. Like DeShaney, Dwares involved the issue of under what circumstances a state actor could be held liable to a plaintiff for violation of his substantive due process rights when the wrong was committed by a private individual. The plaintiff in Dwares alleged that the defendant police officers conspired with private individuals to permit those individuals, without threat of intervention, to assault the plaintiff and to prevent him from exercising his First Amendment rights. Dwares, however, is factually distinguishable because unlike Plaintiff in this case, the plaintiff in Dwares alleged more than inaction on the part of the defendants. Rather, he asserted that the defendant police officers aided and abetted the actions of the private individuals by allowing the plaintiff "to be subjected to a prolonged assault in [the defendants'] presence without interfering with the attack[.]" Dwares, 985 F.2d at 99.
Relying upon Dwares, Plaintiff asserts that the individual Defendants, by their alleged inaction, made her more vulnerable to Mr. Zillioux's inappropriate sexual conduct and that, therefore, they are liable for her injuries. This "state-created danger" theory was addressed in D.R. v. Middle Bucks Area Vocational Tech. Sch., 972 F.2d 1364 (3d Cir. 1992). The court in that case noted that several courts of appeals had recognized the "state-created danger" theory and that "[p]ost- DeShaney courts have tracked the quoted Supreme Court's language by asking whether the state actors involved affirmatively acted to create plaintiff's danger, or to render him or her vulnerable to it." Id. at 1373 (citation omitted). The court further explained that this theory was based upon the premise that "'[i]f the state puts a man in a position of danger from private persons and then fails to protect him, it will not be heard to say that its role was merely passive; it is as much an active tortfeasor as if it had thrown him into a snake pit.'" Id. at 1374 (quoting Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir. 1982)).
Plaintiff's reliance upon the "state-created danger" theory fails because she has not proffered any evidence to demonstrate that Defendants took any action that rendered her more vulnerable to illicit sexual conduct. In addition, Plaintiff does not dispute the fact that she never told anyone, including Defendants, about Mr. Zillioux's behavior; nor does she dispute the fact that Mr. Zillioux had never been arrested previously. Unlike the situation in Dwares, there is absolutely no evidence in this case that Defendants knew that Mr. Zillioux intended to molest Plaintiff and that they stood idly by and allowed that to happen or that Defendants had knowledge, or should have had knowledge, of any facts that would have led them to believe that Mr. Zillioux had engaged in illicit sexual conduct with other children in the past.
Although Plaintiff mentions some testimony about Mr. Zillioux's involvement with another girl named "Kitty," no such person has ever been identified and Plaintiff's own testimony about "Kitty" is, at best, equivocal. Basically, Plaintiff states that she has a "feeling" that there may have been another girl named Kitty, although she cites no basis for this "feeling," other than her allegation that Mr. Zillioux asked her if he could call her "Kitty" or "Kitten" like another girl who use to come to the lock. See Affidavit of Lynne Rose, sworn to September 8, 2001, at ¶ 8.
Accordingly, the Court grants Defendants' motion for summary judgment with respect to Plaintiff's Fourteenth Amendment substantive due process claim to the extent that it is based upon the assumption that Defendants either had a "special relationship" with Plaintiff or that they created the danger that Plaintiff would be subjected to illicit sexual conduct.
(2). Mr. Zillioux as a state actor
Even assuming arguendo that Mr. Zillioux was acting under color of state law at the time that he engaged in illicit sexual conduct with her, Plaintiff can only hold the individual Defendants liable for Mr. Zillioux's conduct if she can establish a claim of supervisory liability against them. Moreover, she can hold the Thruway Authority and the Canal Corporation liable for Mr. Zillioux's actions only if she can establish that they created a custom or practice which allowed this type of activity to flourish or that they were deliberately indifferent to the need to train their employees to address this situation.
(a). Plaintiff's claims against the individual Defendants
Supervisors may be held liable under § 1983 for their own actions as well as, in some case, the acts of their subordinates. See Blyden v. Mancusi, 186 F.3d 252, 264 (2d Cir. 1999). A supervisor may be found liable for the deprivation of a plaintiff's rights in several ways:
"[He] may have directly participated in the infraction. . . . [He], after learning of the violation through a report or appeal, may have failed to remedy the wrong. . . . [He] may be liable because he created a policy or custom under which unconstitutional practices occurred, or allowed such a policy or custom to continue. . . . Lastly, [he] may be personally liable if he was grossly negligent in managing subordinates who caused the unlawful condition or event. . . ."Id. (quoting Wright, 21 F.3d at 501 (citation and internal quotation marks omitted)) (other citation omitted).
Plaintiff makes some conclusory allegations about the individual Defendants' failure to supervise Mr. Zillioux. However, she has not come forward with any proof that they had actual knowledge that Mr. Zillioux was engaging in inappropriate behavior with Plaintiff.
Moreover, although Plaintiff asserts that her aunt made a phone call to Defendant Porter's residence in May 1997 to inform him that she believed that Mr. Zillioux had previously molested another child, Mr. Porter was on duty as a Naval Reserve Petty Officer at that time. See Affidavit of Michael Porter, sworn to October 5, 2001, at ¶ 4. Mr. Porter states that his friend, Mr. Rhinehart, answered the call and that he was not advised of the call until he returned from his navy duty at the end of May or in early June. See id. According to Mr. Porter, it is his understanding that Plaintiff's aunt did not mention that she was concerned about any possible molestation of Plaintiff. See id. at ¶ 5. Defendant Porter also states that he was advised that Plaintiff's aunt was provided with the main telephone number for the Canal and was told that if she believed that any sort of impropriety was occurring, she should call the local law enforcement authorities. See id. at ¶ 6. Mr. Porter also contends that he does not remember receiving a phone call from Plaintiff's mother in May 1997, although he did receive a phone call from someone after this lawsuit had been commenced. See id. at ¶¶ 9, 11.
In addition, the sole basis for Plaintiff's claim that Defendants should have been suspicious of Mr. Zillioux is a telephone conversation that Plaintiff's aunt had with Mr. Rhinehart, in which he allegedly told her that Plaintiff should stay away from Mr. Zillioux. However, there is no evidence that Defendants were aware that Mr. Rhinehart made this statement or that he shared any knowledge about Mr. Zillioux's alleged past conduct with Defendants. Moreover, Mr. Rhinehart's statement, which was an isolated incident and made no mention of sexual molestation, is insufficient to support a finding that any of the individual Defendants created or maintained a policy or custom under which unconstitutional practices could occur or that they were grossly negligent in managing their employees.
Specifically with respect to Defendant Fitzgerald's involvement in this incident, Plaintiff's only claim against him is based upon his decision to allow Mr. Zillioux to resign, rather than to fire him, after he was arrested. Certainly, this after-the-fact conduct could not have caused Plaintiff's injury; nor is there any basis for concluding that this decision is evidence that Defendant Fitzgerald condoned Mr. Zillioux's behavior. In fact, the record shows that quite the opposite is true. As soon as Mr. Zillioux was arrested, Mr. Fitzgerald immediately issued him a Notice of Discipline, which served to immediately suspend Mr. Zillioux from his job and constituted notice that the Thruway Authority would seek his termination.
Plaintiff's claims against Defendant Gabriel also fail. Plaintiff's sole allegation against Mr. Gabriel is based upon Mr. Rhinehart's statement that Plaintiff should stay away from him. Absent any proof that Mr. Gabriel had any knowledge about Mr. Zillioux's conduct, this information cannot sustain a claim against Mr. Gabriel in his supervisory capacity. Finally, Plaintiff cannot maintain a supervisory claim against Defendant Cornacchia because he was Mr. Zillioux's co-worker, not his supervisor.
Accordingly, in light of the total lack of affirmative proof that any of the individual Defendants directly participated in the illicit sexual relationship Mr. Zillioux had with Plaintiff, or failed to remedy the wrong after learning about it, or created a policy or custom that fostered Mr. Zillioux's conduct, or were grossly negligent in managing their subordinates, the Court grants Defendants' motion for summary judgment with respect to Plaintiffs' claims against the individual Defendants.
(b). Plaintiff's claims against the Thruway Authority and the Canal Corporation
Plaintiff's claims against the Thruway Authority and the Canal Corporation are subject to the same fate as her claims against the individual Defendants. To hold these two entities liable for Mr. Zillioux's actions, Plaintiff must demonstrate that Mr. Zillioux's conduct was undertaken pursuant to
"a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers[,] . . . [or] pursuant to governmental 'custom' even though such a custom has not received formal approval through the body's official decisionmaking channels."Jeffes v. Barnes, 208 F.3d 49, 57 (2d Cir. 2000) (quoting [ Monell v. Dep't of Soc. Servs., 436 U.S.] at 690-91, 98 S.Ct. 2018).
Thus, a municipality "cannot properly be held liable in such an action unless the 'injury was inflicted by [its] "lawmakers or by those whose edicts or acts may fairly be said to represent official policy."'" Id. (quoting St. Louis v. Praprotnik, 485 U.S. 112, 121-22, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988) (plurality opinion) (quoting Monell, 436 U.S. at 694, 98 S.Ct. 2018)).
In a situation such as the present one, where the plaintiff does not contend that there was a policy that was formally adopted or ratified "but rather that [the actions complained of] were taken or caused by an official whose actions represent official policy, the court must determine whether that official had final policymaking authority in the particular area involved." Id. (citations omitted). It is not sufficient for purposes of § 1983 that "the official has been granted discretion in the performance of his duties. . . . '[O]nly those municipal officials who have "final policymaking authority" may by their actions subject the government to § 1983 liability.'" Id. (quoting [ Praprotnik, 485 U.S.] at 123, 108 S.Ct. 915 (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 483, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986) (plurality opinion))). Finally, "[w]hether the official in question possessed final policymaking authority is a legal question . . . which is to be answered on the basis of state law, . . ." Id. (internal citations omitted).
Plaintiff's claims against the Thruway Authority and the Canal Corporation fail to the extent that they are based upon Plaintiff's allegation that a policy or custom caused her injuries for several reasons. First, Plaintiff does not identify a policymaker. Of the individual Defendants, the only one that could possibly be high enough in the management hierarchy to be a policymaker is Defendant Fitzgerald, who, at the time, was Director of Labor Relations for the Thruway Authority. However, it is undisputed that Defendant Fitzgerald had no knowledge of Mr. Zillioux's conduct until Mr. Zillioux was arrested, at which time Mr. Fitzgerald immediately suspended him.
Furthermore, Plaintiff's assertion that Defendants had a policy or custom that condoned behavior such as Mr. Zillioux's, rests, at least in part, on her assertion that Defendants' decision to allow Mr. Zillioux to resign rather than to fire him, and thereby retain his retirement benefits, demonstrates a deliberate indifference to Plaintiff's rights. This conclusory argument, which is not supported by any evidence, is rebutted by Defendant Fitzgerald in his affidavit in which he states, among other things, that the Thruway Authority does not administer retirement benefits or make determinations regarding eligibility for those benefits. See Affidavit of Thomas Fitzgerald, sworn to October 5, 2001, at ¶ 20. Moreover, in a letter dated October 2, 2001, the Director of the New York State and Local Retirement Systems stated that "[w]hether [Mr. Zillioux] ended the employer/employee relationship with your agency on September 12, 1997 [the day he was suspended] or continued as an employee in some unpaid status has no bearing on his eligibility to retire as he remains in active member status up to seven years after his separation." See id. at 6 22 and Exhibit "B." In addition, Mr. Fitzgerald explains that, under the retirement system, "no credit towards retirement is given for leaves of absence without pay. Since Mr. Zillioux was on unpaid leave as of his suspension beginning September 16, 1997, he received no further credit toward his retirement after that date." See id. at ¶ 23. Based upon these facts, the Court grants Defendants' motion for summary judgment with respect to Plaintiff's claims against the Thruway Authority and the Canal Corporation to the extent that they are based upon the creation of a policy or custom.
Alternatively, Plaintiff asserts that Defendants' failure to train its employees caused her injury. In order to maintain a failure-to-train claim against the Thruway Authority and the Canal Corporation, Plaintiff must show
that a policymaker knows "to a moral certainty" that her employees will confront a given situation[;] . . . that the situation either presents the employee with a difficult choice of the sort that training or supervision will make less difficult or that there is a history of employees mishandling the situation[;] . . . [and] that the wrong choice by the . . . employee will frequently cause the deprivation of a citizen's constitutional rights.Walker v. City of N.Y., 974 F.2d 293, 297-98 (2d Cir. 1992) (internal citations and citation omitted); see also Lizardo v. Denny's, Inc., No. 97-CV-1234, 2000 WL 976808, *13 n. 46 (N.D.N.Y. July 13, 2000).
Plaintiff has proffered no evidence to support her claim that a policymaker (whoever that may be) knew to "a moral certainty" that the Canal Corporation's employees would confront a situation in which a fellow employee would sexually molest a child. Nor has she presented any evidence to demonstrate that an employee who became aware of an incident of illicit sexual conduct would not know what to do or that there was a history of employees mishandling this type of situation. Accordingly, the Court grants Defendants' motion for summary judgment with respect to Plaintiff's claims against the Thruway Authority and the Canal Corporation to the extent that they are based upon allegations that they were deliberately indifferent to a need to train or supervise their employees.
Defendant Fitzgerald cannot be considered a policymaker for purposes of Plaintiff's failure-to-train claim because, according to his deposition testimony, he is not involved with employee training. See Transcript of Deposition of Thomas Fitzgerald, dated January 19, 2000, at 21.
C. Plaintiff's state law intentional tort claims
It is well-established under New York law that the test for whether an employee was acting within the scope of his employment for purposes of respondeat superior liability is "'"whether the act was done while the [employee] was doing his [employer's] work, no matter how irregularly, or with what disregard of instructions."'" Riviello v. Waldron, 47 N.Y.2d 297, 302 (1979) (quoting Jones v Weigand, 134 App. Div. 644, 645, quoted in Baker v Allen Arnink Auto Renting Co., 231 N.Y. 8, 12-13 [Pound, J.]). "While torts committed by an employee who inartfully tries to carry out his employer's assignment may be found to be within the scope of employment . . ., torts committed for personal motives unrelated to the furtherance of the employer's business cannot . . ., especially if the tortious acts are serious in nature." Island Associated Coop., Inc. v. Hartmann, 118 A.D.2d 830, 830-31 (2d Dep't 1986) (internal citations and citation omitted). To determine whether an employee's conduct falls within the scope of his
employment, the court should weigh factors such as the connection between the time, place and occasion for the act; the history of the relationship between employer and employee as spelled out in actual practice; whether the act is one commonly done by such an employee; the extent of departure from normal methods of performance; and whether the specific act was one that the employer could reasonably have anticipated.Riviello, 47 N.Y.2d at 303 (citations omitted).
Although the factual setting is different, this case is analogous to those cases in which the plaintiffs have attempted to hold a hospital vicariously liable for the assaultive behavior of its employees. For example, in N.X. v. Cabrini Med. Ctr., 280 A.D.2d 34 (1st Dep't 2001), the plaintiff, while recovering from surgery and still under the influence of an anesthetic, was sexually assaulted by a doctor who was not her physician. The court reasoned that once it had been determined that the doctor had committed a sexual assault, "his acts were, as a matter of law, 'wholly personal in nature, outside the scope of his employment, and not in furtherance of defendant hospital's business[.]'" Id. at 38 (quotation omitted). The court explained further, "[a] sexual assault committed by a physician can never be considered a mere deviation from the physician's role as a provider of medical care." Id. (citation omitted); see also Judith M. v. Sisters of Charity Hosp., 93 N.Y.2d 932, 933 (1999) (holding that an orderly who, during the course of bathing a patient, sexually abused the patient was acting outside the scope of his employment because he "departed from his duties for solely personal motives unrelated to the furtherance of the Hospital's business." (citation omitted)).
Plaintiff does not address the merits of her state law claims for assault and battery and defamation other than to imply that Defendants are liable for the intentional torts of Mr. Zillioux because he was a state employee at the time that he engaged in illicit sexual conduct with Plaintiff and at the time he made the statements defaming her.
Plaintiff's attempt to hold Defendants liable for Mr. Zillioux's intentional torts is without merit. Both Mr. Zillioux's illicit sexual relationship with Plaintiff and his statements about her, which he made after he had been suspended from his employment, were done for "personal motives unrelated to the furtherance of [his employer's] business" of operating Lock 18. See Judith M., 93 N.Y.2d at 933. Thus, the acts are clearly not within the scope of Mr. Zillioux's employment. Accordingly, the Court grants Defendants' motion for summary judgment with respect to Plaintiff's state law intentional tort claims.
D. Plaintiff's state law negligence claim
"To establish a prima facie case of negligence, a plaintiff must demonstrate (1) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom." Solomon v. City of N.Y., 66 N.Y.2d 1026, 1027 (1985) (citation omitted).
To support her negligence claim, Plaintiff merely asserts that she has alleged that a special relationship existed between her and Defendants, that, therefore, they had a duty to protect her, and that their failure to do so constitutes negligence.
As noted above, Plaintiff has failed to establish that a special relationship existed between her and Defendants. Thus, she has failed to demonstrate that Defendants owned her a duty to protect her. Accordingly, the Court grants Defendants' motion for summary judgment with respect to Plaintiff's state law negligence claim.
IV. CONCLUSION
After carefully considering the file in this matter, the parties' submissions and the applicable law, and for the reasons stated herein, the Court hereby
ORDERS that Defendants' motion for summary judgment is GRANTED in its entirety; and the Court further
ORDERS that Plaintiff's claims against Mr. Zillioux are DISMISSED WITHOUT PREJUDICE, for lack of service, see Fed.R.Civ.P. 4(m); and the Court further
ORDERS that the Clerk of the Court enter judgment in favor of Defendants and close this case.
IT IS SO ORDERED.