McCarroll v. Douglass et al
Filing
50
ORDER granting 34 Motion to Dismiss; granting 40 Motion to Dismiss; granting 44 Motion to Dismiss; granting 48 Motion to Dismiss. See attached memorandum of decision. The Court dismisses the Plaintiff's complaint in its entirety against all Defendants. The Clerk is directed to close the case. Signed by Judge Vanessa L. Bryant on 9/10/2012. (Fernandez, Melissa)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
DOUGLAS R. McCARROLL,
PLAINTIFF,
:
:
:
:
:
:
:
:
v.
U.S. FEDERAL BUREUA OF PRISONS,
ET AL
DEFENDANTS.
CIVIL ACTION NO.
3:11-cv-934 (VLB)
SEPTEMBER 10, 2012
MEMORANDUM OF DECISION GRANTING DEFENDANTS’ MOTIONS TO DISMISS
[DKT. ##34,40,44,48]
Before the Court are four motions to dismiss the Plaintiff’s complaint in its
entirety pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) filed by
the Defendants Bureau of Prisons (“BOP”) and BOP employees Crystal Kindall1,
Deborah Schult, Barbara Darrah, Steven Lucas, Matthew Ellis, and Judy Nichols
(collectively referred to herein as the “BOP Defendants”); Community Solutions,
Inc. (“Community Solutions”) and Community Solutions employee Elaine Cohen
(collectively referred to herein as the “Community Solutions Defendants”);
Atlanta Psychological Associates2 (“APA”) and APA employee Marvin Douglass
(collectively referred to herein as the “APA Defendants”). The Plaintiff, Douglas
R. McCarroll (“McCarroll”), proceeding pro se, brought this Bivens suit alleging
violations of his First, Sixth, Fourth, Fifth, and Eighth amendment rights, In
addition, Plaintiff asserts several state law causes of action such as breach of
1
The Plaintiff misspelled Defendant Kindall’s last name in the complaint. The
Court will use the correct spelling in its decision. See [Dkt. #35, p. 1 n.1].
2
The Plaintiff misspelled Atlanta Psychological Associates’s name in the
complaint. The Court will use the correct spelling in its decision. See [Dkt. #41,
p. 1 n.1].
1
contract, fraud, and intentional and negligent infliction of emotional distress. The
Defendants argue that Plaintiff’s claims are barred by the doctrine of res judicata
and in the alternative that the Plaintiff has failed to state a claim among other
arguments. For the foregoing reasons, the Court grants Defendants’ motions to
dismiss.
Background
On August 19, 1996, Plaintiff was sentenced in the United States District
Court for the District of Connecticut to a 15-year term of imprisonment followed
by an eight-year term of supervised release. [Dkt. #35, BOP Motion to Dismiss, p.
4]. Plaintiff was released from BOP custody on December 5, 2008. Id.
i.
2009 NDNY Action
On February 13, 2009, the Plaintiff, proceeding pro se, filed a Bivens action
in the Northern District of New York alleging violations of his First, Sixth, Fourth,
Fifth, and Eighth amendment rights as well as several state law causes of action
for fraud and intentional and negligent infliction of emotional distress against
many of the same Defendants as the instant action. See 9:09-cv-187 (NAM/GJD)
(referred to herein as the “NDNY Action”). In the NDNY Action, the Plaintiff
named the BOP and BOP employees Crystal Kindall, Deborah Schult, and Steven
Lucas as defendants. Plaintiff also named Community Solutions’s employee
Elaine Cohen as a defendant in the NDNY Action
In the NDNY Action, Plaintiff’s causes of action were predicated on his
allegations that the BOP coerced him into agreeing to participate and sign up for
a Halfway House Program. See [Dkt. #36, Ex. C, NDNY Action Complaint].
2
Plaintiff alleged that he did not want to participate in the program because he did
not have an alcohol or drug abuse problem, but was told by Defendant Lucas that
it was a voluntary program. Plaintiff alleged that when he entered the Watkinson
Halfway House on June 4, 2008 he was told by Defendant Kindall that the drug
abuse program was mandatory and that he was required to attend. Id. at ¶¶7-13.
Plaintiff then alleges he attended a scheduled interview at Atlanta Psychological
Associates with Dr. Marvin Douglass who rejected Plaintiff from the program. Id.
at ¶¶14-15. Plaintiff alleged that he received an “Incident Report (Shot)” from
Watkinson House Staff on June 10, 2008 charging him with a “PAC violation 309,
Violating a Condition of a Community Program” in connection with his refusal to
participate in the drug abuse program. Id. at ¶17. Plaintiff alleged that he was
informed by Defendant Cohen, the director of the Watkinson halfway house, that
a UDC hearing was to take place and that on June 16, 2008, he was “removed in
leg irons and chains by two United States Marshal and carted off and dumped in
the Hartford Community Corrections jail.” Id. at ¶20. Plaintiff alleged that
sometime in July 2008 an “in absentia disciplinary hearing was held and he was
found guilty of a “PAC violation 309.” Id. at ¶26. Plaintiff alleged that a series of
improprieties and wrongs occurred in connection with the disciplinary process
regarding the “PAC violation 309.” Id. at ¶¶26-71.
Plaintiff alleged in his complaint that the Defendants conspired and
deprived him of his rights to “A) Freedom from cruel and unusual punishment; B)
freedom from terror, humiliation and fear; C) Freedom from retaliation for
exercising First and Sixth Amendment Rights [for helping other prisoners];
3
D)Freedom from intentional and/or negligent infliction of emotional distress
and/or great emotional distress; E) Freedom from fraudulent use of taxpayer
dollars; F) Freedom from negligence in the performance of police duty; G) Due
Process of law; H) Equal protection of the Laws.” Id. at ¶71.
Defendant Cohen moved to dismiss the NDNY Action for failure to state a
claim and on the basis that the NDNY lacked personal jurisdiction over her. On
March 25, 2010, the NDNY court granted Defendant Cohen’s motion to dismiss
concluding that Plaintiff had pled only vague conclusory allegations and had
therefore “failed to demonstrate an agreement or concerted action to violate a
federally protected right.” See [Dkt. #36, Ex. B, NDNY Order). The NDNY court
also found that the Plaintiff failed to make a prima facie showing of conspiracy to
warrant an inference that Cohen was a member of the conspiracy for personal
jurisdiction to extend to her based on acts that were allegedly committed by her
co-conspirators. Id. at 13-14. The NDNY court dismissed the complaint as
against Defendant Cohen without prejudice to repleading in deference to
Plaintiff’s pro se status within 30 days of the court’s order. Id. The Plaintiff
failed to file an amended complaint. Id.
The BOP Defendants moved for summary judgment on the basis that
Plaintiff’s claims were barred by Heck v. Humphrey, 512 U.S. 477 (1994), that the
complaint failed to state a claim, and that the defendants were entitled to qualified
immunity. Id. at 15-16. On March 25, 2010, the NDNY court concluded that under
Heck Plaintiff could maintain a due process challenge if he waived all potential
claims with respect to the duration of his confinement that arise out of the
4
proceeding he is attacking in the current action. The NDNY court determined
that it must present this waiver option to Plaintiff and ascertain whether he is
willing to waive all claims relating to sanctions affecting the duration of his
imprisonment in order to proceed with his claims affecting his conditions of
confinement. Id. at 19-20. The NDNY court therefore took no position on the
merits of Plaintiff’s remaining claims and held the BOP Defendants’ motion for
summary judgment in abeyance pending Plaintiff’s decision on waiver. Id. The
NDNY court ordered Plaintiff to inform the court if he chooses to waive his
present and future due process claims challenging the loss of good time credits
arising from the disciplinary hearings conducted by the defendants within 30
days of the court’s order. Id.
On May 7, 2010, the NDNY court dismissed Plaintiff’s complaint for failure
to comply with the court’s order to file a waiver statement. [Dkt. #26, Ex. B]. The
NDNY court deemed the Plaintiff to have refused to waive his claims and as a
consequence concluded that his claims were barred by Heck as Plaintiff is
subject to supervisory release until 2016.
ii.
Current Action
On June 10, 2011, the Plaintiff filed the instant action in the District of
Connecticut. See [Dkt. #1, Compl.]. The Plaintiff named three new BOP
employees Barbara Darrah, Matthew Ellis and Judy Nichols as Defendants in the
instant action who were not parties to the NDNY Action. In addition, Plaintiff also
named Community Solutions, APA, and APA employee Marvin Douglass as
Defendants who were not parties to the NDNY action. The Plaintiff alleges that
5
Community Solutions is a corporation that exercises care and control over the
Watkinson House halfway house in which Elaine Cohen is the director. [Dkt. #1,
compl., ¶5]. Plaintiff also named as Defendants in this action APA employees
Kim Doe and Steve Doe. Id. To date, the Plaintiff has neither identified nor
served Defendants Kim Doe or Steve Doe.
On February 8, 2012, the BOP Defendants moved to dismiss the complaint.
[Dkt, #34]. On February 17, 2012, APA moved to dismiss the complaint. [Dkt,
#40]. On February 24, 2012, Defendant Elaine Cohen and Community Solutions
moved to dismiss the complaint. [Dkt, #44]. On March 8, 2012, Defendant Marvin
Douglass also moved to dismiss the complaint. [Dkt, #48]. 3
To date, Plaintiff has failed to oppose or object to any of the pending
motions to dismiss. Despite Plaintiff’s failure to submit a memorandum in
opposition to the four pending motions to dismiss, this Court is obligated “to
consider the pleadings and determine whether they contain sufficient grounds for
denying a motion to dismiss.” Goldberg v. Danaher, 599 F.3d 181, 183 (2d Cir.
2010); McCall v. Pataki, 232 F.3d 321, 322-23 (2d Cir. 2000)(“ although a party is of
course to be given a reasonable opportunity to respond to an opponent's motion,
the sufficiency of a complaint is a matter of law that the court is capable of
determining based on its own reading of the pleading and knowledge of the law.
If a complaint is sufficient to state a claim on which relief can be granted, the
3
Defendant Douglass also moved to dismiss the complaint on the basis that the
complaint was never served upon him in accordance with Federal Rule of Civil
Procedure 4(m).
6
plaintiff's failure to respond to a Rule 12(b)(6) motion does not warrant
dismissal.”).
Factual Allegations
The Plaintiff, as he did in the NDNY Action, asserts that his complaint is
brought pursuant to 42 U.S.C. §1983. However, whereas here, a Section 1983
action is brought against a federal official, a court should construe the claim as
an action brought pursuant to Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971) in which the Supreme Court held that an
individual may recover damages from a federal agent or employee acting under
color of federal authority if that agent or employee violates the individual’s
constitutional rights. See Robinson v. Overseas Military Sales Corp., 21 F.3d 502,
510 (2d Cir. 1994) (finding it proper to construe a Section 1983 claim against a
federal agency and its federal officers as a Bivens claim). The Court therefore
construes Plaintiff’s allegations as brought pursuant to Bivens.
Plaintiff alleges the following facts, which for purposes of this motion the
Court accepts as true. On or about January, 2008, he was “coerced into agreeing
to participate and sign up for the “Halfway House Program.” [Dkt. #1, Compl.,
¶7]. On April 20, 2008, Defendant Lucas advised him he would go to the halfway
house in Connecticut on June 4, 2008 and that on May 17, 2008 he was told that
he had to sign an “Agreement to Participate in Community Transition
Programming” to be eligible for halfway house placement. Id. at ¶¶8-9. Plaintiff
signed the agreement under “objection, duress, and coercion” as he did not have
an alcohol or drug abuse problem. Id. at ¶¶10-12. Defendant Lucas told him that
7
it was a voluntary program and that he could choose not to participate. Id. at
¶¶11-13.
On May 21, 2008, Defendant Lucas told McCarroll that Defendant Schult
would not accept the Agreement he signed under duress and that he signed
another agreement “under UCC 1-207.” Id. at ¶13. Defendant Lucas told
McCarroll not to worry as it’s a voluntary program. Id. McCarroll signed this
agreement based upon “the false representation made by defendant Lucas.” Id.
McCarroll entered the Watkinson House on June 4, 2008 which was
identified in a paper he received from Defendant Kindall as a mandatory drug
abuse program, McCarroll was also told that he had to attend a scheduled
interview for June 10, 2008 or else go back to prison. Id. at ¶¶15. McCarroll went
to APA on June 10th and was told by Kim Doe to sign the sign-in sheet.
McCarroll signed in “under objection, duress and threats of going back to
prison.” Id. at ¶¶15-16. McCarroll met with Defendant Douglass, a doctor at APA,
who interrogated him about whether any of his staff put him under duress. Id. at
¶¶17-29. Defendant Douglass, with a “raging , psychotic look in his eyes”
screamed at him and “act[ed] like an animal.” Id. at ¶¶30. Defendant Douglass
told him that “you’re rude – jailhouse lawyer crackers like you who defend
themselves and file lawsuits deserve to go back to prison.” Id. at ¶¶36.
When McCarroll returned to Watkinson House his case manager told him
an Incident Report would be written. On June 10, 2008 McCarroll was served with
an Incident Report for a Prohibited Act Code violation 309, Violating a Condition
of a Community Program.” Id. at ¶¶37-39.
8
Plaintiff was told that a UDC hearing
would be held on June 16, 2008. On June 16, 2008 U.S Marshalls “who were
there by a fax from defendant Crystal Kimball [sic] to put leg irons and chains on
the Plaintiff and cart him off to jail.” Id. at ¶¶43-45.
McCarroll asserts that his
Sixth Amendment rights “were violated in retaliation for being a pro se litigant
and helping other prisoners with their legal work.” Id. at p.19.
Plaintiff further asserts that the conduct of the Defendants, “having
conspired to inappropriately enroll the Plaintiff in a drug treatment program so as
to garner Federal money for such placement, is in fact an entrenched and
longstanding scheme to defraud. Finally, Plaintiff asserts that his “forced
placement in such a program – absent any evidence of necessity or proprietary –
was in clear retaliation for his exercise of First and Sixth Amendment rights.” Id.
at ¶50.
Plaintiff claims that the Defendants conspired and deprived him of his
rights to “A) Freedom from cruel and unusual punishment; B) freedom from
terror, humiliation and fear; C) Freedom from retaliation for exercising First and
Sixth Amendment Rights; D)Freedom from intentional and/or negligent infliction
of emotional distress and/or great emotional distress; E) Freedom from unusual
search and seizure; F) Due process of law; G) Equal protection under the Law.”
Id. at ¶59. Plaintiff further alleges that his rights are secured under Common law
Uniform Commercial Code Section 1-207 and under “the Statutes and laws of the
States of New York and Connecticut, and under any jurisdictional Statues or
Laws related to fraud and/or breach of conduct, however titled, invoked under the
pendent jurisdiction of this Court.” Id. at ¶60.
9
Legal Standard
The standards of review for a motion to dismiss under Rule 12(b)(1) for lack
of subject matter jurisdiction and under 12(b)(6) for failure to state a claim are
“substantively identical.” Lerner v. Fleet Bank, N.A., 318 F.3d 113, 128 (2d. Cir.
2003). However, on a motion to dismiss under Rule 12(b)(1), the party invoking
the Court’s jurisdiction bears the burden of proof to demonstrate that subject
matter jurisdiction exists, whereas the movant bears the burden of proof on a
motion to dismiss under Rule 12(b)(6). Id. In deciding both types of motions, the
Court “must accept all factual allegations in the complaint as true, and draw
inferences from those allegations in the light most favorable to the plaintiff.” In
re AIG Advisor Group Sec. Litig., 309 Fed. App’x. 495, 497 (2d Cir. 2009). “To
survive a motion to dismiss [under Rule 12(b)(6)], a complaint must contain
sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (internal
quotation marks omitted). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Id.
The Court’s review on a motion to dismiss pursuant to Rule 12(b)(6) is
generally limited to “the facts as asserted within the four corners of the
complaint, the documents attached to the complaint as exhibits, and any
documents incorporated in the complaint by reference.” McCarthy v. Dun &
Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). In addition, the Court may also
consider “matters of which judicial notice may be taken” and “documents either
10
in plaintiffs’ possession or of which plaintiffs had knowledge and relied on in
bringing suit.” Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993). In
deciding a motion to dismiss for lack of subject matter jurisdiction under Rule
12(b)(1), however, the Court “may resolve disputed factual issues by reference to
evidence outside the pleadings, including affidavits.” State Employees
Bargaining Agent Coal. v. Rowland, 494 F.3d 71, 77 n.4 (2d Cir. 2007).
Analysis
Defendants argue that Plaintiff’s claims are barred by the doctrine of res
judicata on the basis of his prior NDNY lawsuit. “Res judicata, or claim
preclusion, means that a party may not split causes of action that ‘could be
brought and resolved together.’” Vandever v. Emmanuel, 606 F.Supp.2d 253, 254
(D. Conn. 2009) (quoting Nestor v. Pratt & Whitney, 466 F.3d 65, 70 (2d Cir.2006)).
“This doctrine means that once a case reaches a final judgment on the merits, the
parties cannot later relitigate the issues that were raised or could have been
raised in that earlier case.” Id. See alsoSWaldman v. Village of Kiryas Joel, 207
F.3d 105, 110-11 (2d Cir. 2000) (It is well-established that “a plaintiff cannot avoid
the effects of res judicata by ‘splitting’ his claim into various suits, based on
different legal theories (with different evidence ‘necessary’ to each suit)”).
“Under the federal rules of res judicata, a subsequent lawsuit will be barred
where the defendant can show: (1) an adjudication on the merits in the previous
action; (2) that the previous lawsuit involved the plaintiffs, or those in privity with
them; and (3) that the claims asserted in the subsequent suit were raised, or
could have been raised, in the prior proceeding.” Greenwich Life Settlements,
11
Inc. v. ViaSource Funding Group, LLC, 742 F.Supp.2d 446, 453 (S.D.N.Y. 2010)
(citations omitted).
“Whether a claim that was not raised in the previous action could have
been raised therein depends in part on whether the same transaction or
connected series of transactions is at issue, whether the same evidence is
needed to support both claims, and whether the facts essential to the second
were present in the first.” Marvel Characters, Inc. v. Simon, 310 F.3d 280, 287 (2d
Cir. 2002) (internal quotation marks and citations omitted). “To determine
whether two actions arise from the same transaction or claim, we look to whether
the underlying facts are related in time, space, origin, or motivation, whether they
form a convenient trial unit, and whether their treatment as a unit conforms to the
parties' expectations or business understanding or usage.” Id. (internal
quotation marks and citation omitted). “Even claims based upon different legal
theories are barred provided they arise from the same transaction or
occurrence.” Cieszkowska v. Gray Line New York, 295 F.3d 204, 205 (2d Cir.2002)
(internal quotation marks omitted). “As a result our cases consistently hold that
the facts essential to the barred second suit need not be the same as the facts
that were necessary to the first suit. It is instead enough that ‘the facts essential
to the second were [already] present in the first.’” Waldman, 207 F.3d at 110-11
(quoting Computer Assocs. Int’l, Inc. v. Altai, Inc., 126 F.3d 365, 369 (2d Cir.
1997)).
Further, the doctrine of res judicata applies to Bivens claims. See, e.g.,
Kapordelis v. Brant, No.10-cv-4900 (NGG)(JMA), 2010 WL 5152387, at *2 (E.D.N.Y.
12
Dec. 13, 2010) (holding that Plaintiff’s claim brought under Bivens was barred by
the doctrines of res judicata and collateral estoppel); Menillo v. U.S. Dept. of
Justice Bureau of Prisons, 411 F.Supp.2d 130, 131(D. Conn. 2006) (inmate was
precluded by doctrine of res judicata from relitigating as a Bivens action
challenges to the calculation of his prison term that was previously litigated in a
state habeas corpus proceeding); Hall v. Hodgkins, 305 Fed. Appx. 224, 228-29
(5th Cir. 2008) (affirming judgment of district court dismissing Bivens claim as
barred by res judicata).
The NDNY court’s order granting Defendant Cohen’s motion to dismiss and
its order dismissing the action as to the BOP Defendants for failure to file a
waiver statement constitute an adjudication on the merits. See Teltronics Servs.
v. LM Ericsson Telecomm., Inc., 642 F.2d 31, 34-35 (2d Cir. 1981) (Rule 12(b)(6)
judgments “are on the merits, with res judicata effects”).
All of the claims asserted in the instant action were either raised, or could
have been raised, in the NDNY Action. Both suits arise out of the same facts and
circumstances and the same evidence is needed to establish the claims in both
suits. Both actions stem from his allegedly coerced participation in a drug
treatment program at the Watkinson Halfway House and Atlanta Psychological
Associates which led to the issuance of an incident report, disciplinary
proceedings, and Plaintiff’s return to prison. Indeed, the instant complaint
contains numerous allegations which are identical to the allegations in the NDNY
Action. For instance, the facts alleged in Paragraphs 7 through 13 of the
complaint in the current action are almost verbatim the same as the facts alleged
13
in paragraphs 7 through 15 of the NDNY complaint. See [Dkt. #36, Ex. C, ¶¶7-15
and Dkt. #1, Compl., ¶¶7-13].
The only difference between the complaint filed in this action and the one
filed in the NDNY Action is that the complaint filed in this action expounds upon
the facts alleged in the complaint filed in the NDNY Action. For example the
complaint filed in the instant action provides more facts describing McCarrol’s
interaction with Defendant Douglass at the APA. See [Dkt. #1, Compl., ¶¶17-37].
These “newly” added facts were known to and could have been included by
McCarroll in the complaint he filed the NDNY Action. Indeed, Plaintiff states in a
footnote in the NDNY complaint that “Dr. Marvin Douglass and others are the
subject of a different federal civils [sic] rights Complaint that the Plaintiff will be
filing in Connecticut.” [Dkt. #36, Ex. C, footnote p. 5]. It appears that Plaintiff is
indeed impermissibly attempting to “avoid the effects of res judicata by ‘splitting’
his claim into various suits, based on different legal theories.” Waldman, 207
F.3d at 110-11. The underlying facts of Plaintiff’s allegedly coerced participation
in the drug treatment program are certainly related in time, space, origin and
motivation and form a convenient trial unit. Consequently, any “newly” added
claims or allegations based upon different legal theories in the current action are
barred because they arise from the same occurrence of Plaintiff’s prior claims in
the NDNY Action.
Further, Plaintiff conclusorily asserted the same broad array of
constitutional violations in both his NDNY Action and the current action. In
Paragraph 71 of the NDNY complaint, Plaintiff asserts that the Defendants
14
conspired and deprived him of his rights to “A) Freedom from cruel and unusual
punishment; B) freedom from terror, humiliation and fear; C) Freedom from
retaliation for exercising First and Sixth Amendment Rights [for helping other
prisoners]; D)Freedom from intentional and/or negligent infliction of emotional
distress and/or great emotional distress; E) Freedom from fraudulent use of
taxpayer dollars; F) Freedom from negligence in the performance of police duty;
G) Due Process of law; H) Equal protection of the Laws.” [Dkt. #36, Ex. C, ¶71].
In the instant action, Plaintiff included an almost identical paragraph except that
he did not re-allege that he was deprived of his rights to “Freedom from
fraudulent use of taxpayer dollars” and “Freedom from negligence in the
performance of police duty.” [Dkt. #1, Compl., ¶60]. Instead, Plaintiff added that
he was also deprived of his right to “Freedom from unusual search and seizure.”
Id. Plaintiff has therefore advanced many of the same legal theories in the
current action as were advanced in the NDNY Action. Consequently, Defendants
have shown that the claims asserted in the current action were either raised or
could have been raised in the NDNY Action and that the NDNY Action was an
adjudication on the merits.
Lastly, the NDNY Action involved the same Plaintiff, the same Defendants
or those in privity with them as the current action. “In its modern form, the
principle of privity bars relitigation of the same cause of action against a new
defendant known by a plaintiff at the time of the first suit where the new
defendant has a sufficiently close relationship to the original defendant to justify
preclusion.” Central Hudson Gas & Elec. Corp. v. Empresa Naviera Santa S.A., 56
15
F.3d 359, 367-68 (2d Cir.1995); see also Lacy v. Principi, 317 F.Supp.2d 444, 447
(S.D.N.Y. 2004) (“When a party has litigated a claim to final judgment, that party
cannot avoid the res judicata effect of that judgment by bringing suit against a
new defendant that is in privity with the original defendant.”); Cameron v. Church,
253 F.Supp.2d 611, 623 (S.D.N.Y. 2003) (“Res judicata operates to preclude
claims, rather than particular configurations of parties; Plaintiff's addition of new
defendants, in the context of allegations of their involvement in the series of
alleged deprivations, does not entitle him to revive the previously-dismissed
claims.”).
“[O]ne whose interests were adequately represented by another vested
with the authority of representation is bound by the judgment, although not
formally a party to the litigation.” Expert Elec., Inc. v. Levine, 554 F.2d 1227, 1233
(2d Cir. 1977). “The privity requirement exists to ensure that the interests of the
party against whom collateral estoppel [or res judicata] is being asserted have
been adequately represented because of his purported privity with a party at the
initial proceeding.... A key consideration in determining the existence of privity is
the sharing of the same legal right by the parties allegedly in privity....” Tibetts v.
Stempel, 354 F.Supp.2d 137, 148 (D. Conn. 2005) (internal quotation marks and
citation omitted). “[T]he concept of privity has moved away from the
conventional and narrowly defined meaning of mutual or successive
relationships to the same rights or property. It now signifies a relationship
between one who is a party of record and another who is a nonparty, but is
sufficiently close to mandate the application of res judicata or collateral
16
estoppel.” Id. (internal quotation marks and citation omitted); see also Alaimo v.
General Motors Corp., No.07-cv-7624(KMK)(MDF), 2008 WL 4695026, at *5
(S.D.N.Y. Oct. 20, 2008) (“Though privity has traditionally been narrowly defined,
the modern conception of privity is applicable in the res judicata context where,
as here, a new defendant has a sufficiently close relationship to the original
defendant to justify preclusion.”) (internal quotation marks and citation omitted).
Here, the “newly” added BOP defendants Barbara Darrah, Matthew Ellis
and Judy Nichols are ineluctably in privity with the BOP and their co-employees
Crystal Kindall, Deborah Schult and Steven Lucas who were Defendants in the
NDNY Action. Courts have long recognized that privity exists between coemployees or employees and their employers for res judicata purposes. See,
e.g., Barclay v. Lowe, 131 Fed. App. 778, 779 (2d Cir. 2005) (finding privity existed
where prisoner’s second suit named different prison guards as defendants.
“Although [the plaintiff] named different defendants in the second suit than in the
first, the suits are nonetheless duplicative because the defendants in the second
suit are in privity with the defendants in the first suit. All defendants are
employees of Attica and their interests are adequately represented by those in
the first suit who are ‘vested with the authority of representation.’ ”); Watson v.
Mayo, No.07Civ.54(NRB), 2008 WL 538442, at *8 (S.D.N.Y. Feb. 26, 2008) (“Courts
have routinely found privity between co-employees sued in separate suits over
allegedly tortious acts that occurred during the course of their employment.”);
Amadsau v. Bronx Lebanon Hosp. Ctr., 03 Civ. 6450(LAK)(AJP), 2005 WL 121746,
at *8 (S.D.N.Y. Jan. 21, 2005) (finding employees and employer-defendant in prior
17
litigation with same plaintiff to have “sufficiently close relationship” to be in
privity for res judicata purposes); Marshall v. Nat'l Ass'n of Letter Carriers BR36,
03 Civ. 1361LTSAJP, 2003 WL 22519869, at *9 (S.D.N.Y. Nov.7, 2003) (holding
National Labor Relations Board, Equal Employment Opportunity Commission,
and employees of these agencies to be in privity with United States Postal
Service and letter carriers union); Alaimo, 2008 WL 4695026, at *5 (holding that
plaintiff could not avoid the bar of res judicata by adding a General Motors
employee as a new defendant in the current action where General Motors was a
defendant in the prior state action); Tibbetts, 354 F.Supp.2d at 148 (“Generally, an
employer-employee or agent-principle relationship will provide the necessary
privity for claim preclusion with respect to matters within the scope of the
relationship, no matter which party is first sued.”) (quotation marks omitted). For
these same reasons, privity exists between Defendant Community Solutions and
its employee, the Defendant Cohen. As Defendant Cohen was named as a
defendant in the NDNY Action which action was based on facts identical to those
on which this case is based, the claims against its employer Community
Solutions are barred by the doctrine of res judicata.
Lastly, the Court finds that Defendant Douglass and the APA are in privity
with the BOP and Defendant Cohen as they had a sufficiently close relationship
to the BOP and Defendant Cohen to justify preclusion. Plaintiff alleges that both
Community Solutions (Defendant Cohen’s employer) and APA4 are contracted by
4
The Court further notes that under Supreme Court precedent Plaintiff cannot
maintain a Bivens action against either Community Solutions or APA. See
Corrections Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001) (holding that Bivens
18
the BOP to provide services to prisoners on behalf of the BOP. See [Dkt. #1,
Compl., ¶1]. It has been long recognized that the BOP relies on “contracts with
private institutions and state and local governments for the operation of halfway
house facilities to help federal prisoners reintegrate into society.” Correctional
Servs. Corp. v. Malesko, 534 U.S. 61, 64 n.1 (2001). Both Community Solutions
and APA provided drug treatment and/or halfway house services to McCarroll
under contract with or at the behest of the BOP and therefore are agents of and in
privity of contract with the BOP such that their interests, which arose out of the
same facts and circumstances, rely upon the same evidence and assert the same
claims as those litigated in the NDNY Action, had the same interests as and were
adequately represented by the BOP in the NDNY Action. See, e.g., John St.
Leasehold, LLC v. Capital Mgmt. Res., L.P., 154 F.Supp.2d 527, 542 (S.D.N.Y.2001)
(“Most courts of appeals have held that an agency relationship is sufficient to
establish privity for the purposes of res judicata .... Finding privity in an agency
relationship is consistent with the teaching of the Court of Appeals for the
Second Circuit that privity is to be applied flexibly and is to be found where the
new defendants have a sufficiently close relationship with the defendants in the
first action.” (citations and quotation marks omitted) (collecting cases));
Amadasu, 2005 WL 121746, at *8 (finding that employees and institute “closely
affiliated with” hospital that was a defendant in prior litigation with same plaintiff
to have a “sufficiently close relationship” to be considered in privity with one
action may not be brought against private corporations, such as a private
operator of a halfway house under contract with the BOP, even when such private
corporation acts under color of federal law).
19
another); Adams v. California Dep't. of Health Services, 487 F.3d 684, 691-92 (9th
Cir.2007) (holding that co-employees of a state agency as well as independent
contractors hired by the state agency were in privity with the state agency itself
and various other individual defendants who had been sued in a prior action by
virtue of the fact that all of the defendants possessed an “identity of interest”).
Here there was an identity of interest by virtue of the close working and
collaborative relationship between the BOP, Community Solutions, and APA and
their employees in providing services to the prisoners under BOP control. This
identity of interest and close relationship is reflected in the fact that Defendant
Douglass and APA’s alleged conduct was essential to the claims brought against
the BOP and Cohen in the NDNY Action as the “PAC violation 309” was based on
Defendant Douglass’s report that Plaintiff refused to participate in drug abuse
counseling. Consequently, Defendant Douglass, APA, and APA employees
Steve and Kim Doe5 are in privity with the BOP and Defendant Cohen. Here,
Plaintiff’s attempt to name a different configuration of Defendants does not entitle
him to revive previously-dismissed claims or raise claims that could have been
asserted in the prior action.
In sum, the Defendants have shown there was a prior adjudication on the
merits of the claims arising out of the facts and circumstances which gave rise to
the instant suit, that privity existed between the parties to the NDNY Action and
the parties to the instant action, and that the claims asserted in the instant action
5
The Court notes that res judicata would also apply to bar any claims made
against Defendants Kim Doe and Steve Doe in the event that Plaintiff identified
and effected service on those Defendants.
20
were raised, or could have been raised, in the NDNY Action. Consequently res
judicata bars all of Plaintiff’s claims in the current action. The Defendants have
made several other alternative arguments as to why this action should also be
dismissed. However, the Court need not address those arguments in light of its
conclusion that res judicata applies.
Conclusion
For the foregoing reasons, the Defendants’ motions to dismiss
[Dkt.##34,40,44,48] are GRANTED. The Court dismisses the Plaintiff’s complaint
in its entirety against all Defendants. The Clerk is directed to close the case.
IT IS SO ORDERED.
_______/s/__________
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: September 10, 2012
21
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