Frankel v. New York State Office of Children & Family Services et al
Filing
57
MEMORANDUM AND ORDER for 49 Report and Recommendation: Having conducted the appropriate levels of review of the Report and Recommendation of United States Magistrate Judge Ronald L. Ellis dated April 29, 2013, this Court APPROVES, and ADOPT S the factual findings and recommendations as modified herein. Accordingly, Defendants' Motion to Dismiss is GRANTED in its entirety. The Clerk of Court is directed to close the docket in this case. (Signed by Judge Deborah A. Batts on 3/23/2015) (tn)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------X
HARLAN FRANKEL,
Plaintiff,
v.
11-CV-7973 (DAB)(RLE)
MEMORANDUM AND ORDER
NEW YORK STATE OFFICE OF CHILDREN
& FAMILY SERVICES, GLADYS CARRION,
RICHARD TRUDEAU, POLA EISENSTEINROSAN, KIETH BERGMANN, MICHAEL
DECELLE, BERNETT MARION, EMMILINE
MURPHY, and LOIS SHAPIRO,
Defendants.
------------------------------------X
DEBORAH A. BATTS, United States District Judge.
This matter is before the Court on a Report and
Recommendation from United States Magistrate Judge Ronald L.
Ellis dated April 29, 2013, which recommends granting
Defendants’ Motion to Dismiss and entering judgment for
Defendants.
Plaintiff filed timely objections to the Report.
For the reasons stated herein, this Court ADOPTS the Report as
modified herein, GRANTS Defendants’ Motion to Dismiss, and
directs the Clerk of Court to enter judgment for Defendants.
I.
Background
Pro se Plaintiff, Harlan Frankel, filed a complaint against
the New York State Office of Children & Family Services (“OCFS”)
and eight individual defendants asserting claims under 42 U.S.C.
§ 1983 for purported retaliation in violation of the First
Amendment of the United States Constitution, and for alleged
violations of the Due Process Clause of the Fourteenth Amendment
and Article 1, Section 6 of the New York State Constitution.
Plaintiff also brought common law claims for intentional
infliction of emotional distress.
Defendants moved to dismiss,
and the Honorable Ronald L. Ellis issued a Report recommending
that this Court grant Defendants’ Motion to Dismiss in its
entirety (“Report”).
The Court incorporates the recitation of
the facts as provided by Judge Ellis in his Report.
II. Discussion
A. Standard of Review for a Report and Recommendation
“Within fourteen days after being served with a copy [of a
Magistrate Judge’s Report and Recommendation], a party may serve
and file specific written objections to the proposed findings
and recommendations.”
U.S.C. § 636(b)(1)(c).
Fed. R. Civ. P. 72(b)(2); accord 28
The Court may adopt those portions of
the Report to which no timely objection has been made, as long
as there is no clear error on the face of the record.
Wilds v.
United Parcel Serv., Inc., 262 F. Supp. 2d 163, 169 (S.D.N.Y.
2003) (citation omitted).
A district court must review de novo
2
“those portions of the report or specified proposed findings or
recommendations to which objection is made.”
636(b)(1).
28 U.S.C. §
“To the extent, however, that the party makes only
conclusory or general arguments, or simply reiterates the
original arguments, the Court will review the Report strictly
for clear error.”
Indymac Bank, F.S.B. v. Nat’l Settlement
Agency, Inc., No. 07-CV-6865, 2008 WL 4810043, at *1 (S.D.N.Y.
Nov. 3, 2008) (citation omitted); see also Ortiz v. Barkley, 558
F. Supp. 2d 444, 451 (S.D.N.Y. 2008) (“Reviewing courts should
review a report and recommendation for clear error where
objections are merely perfunctory responses, argued in an
attempt to engage the district court in a rehashing of the same
arguments set forth in the original petition.”) (citation and
internal quotation marks omitted).
While 28 U.S.C. § 636(b)(1) and Rule 72(b) give the Court
discretion to consider additional material that was not
submitted to the magistrate judge, Hynes v. Squillace, 143 F. 3d
653, 656 (2d Cir. 1998), a party has no right to present
additional evidence when the party provides no justification for
not offering the evidence in its submissions to the magistrate.
See, e.g., Pan Am. World Airways, Inc. v. Int’l Bhd. of
Teamsters, Chauffeurs, Warehousemen & Helpers, 894 F.2d 36, 40
n.3 (2d Cir. 1990); Azkour v. Little Rest Twelve, Inc., No. 10
Civ. 4132, 2012 WL 1026730, at *2 (S.D.N.Y. Mar. 27, 2012)
3
(“[C]ourts generally do not consider new evidence raised in
objections . . . absent a compelling justification for failure
to present such evidence to the magistrate judge.”) (internal
quotations omitted).
Accepting new evidence is disfavored
absent a compelling reason because doing so “would reduce the
magistrate’s work to something akin to a meaningless dress
rehearsal.”
Vega v. Artuz, No. 97 Civ. 3775, 2002 WL 31174466,
at *1 (S.D.N.Y. Sept. 30, 2002) (citations and internal
quotation marks omitted).
Despite the general leniency accorded
to pro se parties, courts generally do not allow pro se parties
to litigate matters in their objections that were not presented
to the magistrate judge.
Howell v. Port Chester Police Station,
No. 09 Civ. 1651, 2010 WL 930981, at *1 (S.D.N.Y. Mar. 15,
2010); see also Litchmore v. Williams, 11 CIV. 7546, 2013 WL
3975956, at *2 (S.D.N.Y. Aug. 5, 2013) (collecting cases).
After conducting the appropriate levels of review, the
Court may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the Magistrate.
636(b)(1)(C).
4
28 U.S.C. §
B. The Report’s Recommendation
Judge Ellis’ Report recommends that: (1) Plaintiff’s
federal claims against OCFS and the individual Defendants sued
in their official capacities be DISMISSED because they are
barred by the Eleventh Amendment; (2) Plaintiff’s claims under
42 U.S.C. § 1983 that occurred prior to November 4, 2008, be
dismissed because they are time-barred by the three-year statute
of limitations; (3) Plaintiff’s intentional infliction of
emotional distress claim be dismissed because it is barred by
New York’s one-year statute of limitations; (4) Plaintiff’s
First Amendment retaliation claims be dismissed because the
allegations in the complaint do not establish that Plaintiff
engaged in constitutionally protected speech and was subjected
to adverse employment action as a result; (5) Plaintiff’s due
process claims be dismissed because Plaintiff failed to pursue a
New York Civil Practice Law and Rules Article 78 proceeding as
an adequate post-resignation remedy; (6) Plaintiff’s claims
against Defendants Carrion and Murphy be dismissed because
Plaintiff failed to allege that Carrion and Murphy were directly
or personally responsible for the relevant events; and (7)
Plaintiff’s claims against the individually named defendants be
dismissed because they are entitled to qualified immunity.
5
(Report 2-3.)
The Court will analyze each of the Report’s
recommendations in conjunction with Plaintiff’s objections.
1. Standard
Defendants moved to dismiss under Rule 12(b)(1) and
12(b)(6).
The Report analyzed the 12(b)(1) motion first,
because dismissal for lack of subject matter jurisdiction would
render all other issues moot.
Neither party objected to the
standards used to analyze the motion under Federal Rule of Civil
Procedure 12(b)(1) and (6) or that Judge Ellis ruled on the
12(b)(1) motion first.
The Court reviews this portion of the
Report for clear error and finds none.
2. Section 1983 Claims Against OCFS and Individual
Defendants
The Report recommends dismissing Plaintiff’s federal claims
against OCFS and the individual Defendants because they are
barred by the Eleventh Amendment of the United States
Constitution.
(Report 9.)
Plaintiff conceded in his objections
that the Eleventh Amendment bars his claims against the State
Agency. (Pl.’s Objections 2.)
Neither party explicitly objected
to the Report’s recommendation that claims against the
individual Defendants are barred by the Eleventh Amendment.
6
States, state agencies, and state officials sued in their
official capacities for monetary relief are not suable “persons”
for the purpose of Section 1983.
Will v. Mich. Dep’t of State
Police, 491 U.S. 58, 71 (1989).
State officials, sued in their
official capacity, are suable persons however when sued for
prospective relief.
Id. n. 10.
The Eleventh Amendment
separately bars claims for monetary relief against a state,
state agency, or state officials sued in an official capacity.
See, e.g., Berman Enters., Inc. v. Jorling, 3 F.3d 602, 606-07
(2d Cir. 1993).
The Eleventh Amendment does not bar, however,
suits for injunctive or declaratory relief against state
officials in their official capacities.
Id.; see also Verizon
Maryland Inc. v. Public Serv. Comm’n, 535 U.S. 635, 645 (2002).
The Court finds no clear error in the Report’s finding that
the OCFS is not a “person” under Section 1983, and that a state
agency cannot be sued under Section 1983. (Report 9 (citing
Quern v. Jordan, 440 U.S. 332, 341-42 (1979); Will, 491 U.S. 58;
Feingold v. New York, 366 F.3d 138, 149 (2d Cir. 2004).)
Because the Eleventh Amendment bars damages claims against a
state employee sued in his or her official capacity, Berman, 3
F.3d at 606, the Court finds no clear error in the Report’s
recommendation that claims for damages against the individual
defendants in their official capacity be dismissed as well.
The
Court limits the Report’s recommendation of dismissal as to the
7
individual defendants to damages claims only.1
Accordingly, all
claims against OCFS and the damages claims against individual
defendants in their official capacities are DISMISSED.
3.
Plaintiff’s Due Process Claims
The Report recommends dismissing Plaintiff’s due process
claims because Plaintiff failed to avail himself of available
state remedies.
(Report 10.)
Plaintiff does not specifically
object to the Report’s recommendation but instead argues for the
first time that he could not avail himself of state remedies out
of fear that one of the individual defendants may lie during
state administrative proceedings.
(Pl.’s Objections. 8-9.)
This argument is procedurally improper, being brought for the
first time in Plaintiff’s objections to the Report.
Vega, 2002 WL 31174466, at *1.
See, e.g.,
Further, the argument is legally
irrelevant.
Plaintiff has not been deprived of due process because the
State provides an adequate procedural remedy, an Article 78
proceeding, and the Plaintiff has not availed himself of that
1
While claims for damages against state agencies and defendants in their
official capacities are barred by the Eleventh Amendment, claims for
declaratory relief are actionable in federal court. See Verizon, 535 U.S. at
645; Berman, 3 F.3d at 606-07. As discussed in detail below, Plaintiff’s
claims for declaratory relief fail, however, both on the merits and because
of the relevant statutes of limitation.
8
remedy.
See New York State Nat’l Org. for Women v. Pataki, 261
F.3d 156, 169 (2d Cir. 2001) (holding that even if NY state
agency subjected discrimination claims to unreasonable delays in
processing, plaintiffs could have brought an Article 78
proceeding to mandamus Division officials to perform certain
acts and thus plaintiffs had adequate process); see also RiveraPowell v. New York City Bd. of Elections, 470 F.3d 458, 468 n.12
(2d Cir. 2006) (“When § 1983 claims allege procedural due
process violations, we nonetheless evaluate whether state
remedies exist because that inquiry goes to whether a
constitutional violation has occurred at all. . . . [A]
procedural due process violation cannot have occurred when the
governmental actor provides apparently adequate procedural
remedies and the plaintiff has not availed himself of those
remedies.”).
As such, the Court finds no clear error in the
Report’s recommendation that the Plaintiff’s due process claims
be dismissed.
4.
Statute of Limitations for Section 1983 Claims
The Report recommends dismissing Plaintiff’s Section 1983
claims because the events that constitute the subject of
Plaintiff’s claims occurred more than three years before
Plaintiff filed the lawsuit.
(Report 13-14.)
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Section 1983
claims have a three year statute of limitations unless the
Plaintiff presents evidence of a continuing violation.
Young v.
Strack, 05 Civ. 9764, 2007 WL 1575256, at *4 (S.D.N.Y. May 29,
2007) (citations omitted).2
Discrete or isolated acts are
insufficient to invoke the continuing violation doctrine.
Id.3
The Report concluded that Plaintiff alleged nothing more
than isolated incidents of alleged illegal conduct, rather than
a pattern of discriminatory conduct.
(Report 13-14.)
did not specifically object to this finding.
Plaintiff
Instead, Plaintiff
argues for the first time in his Objections that there is no
statute of limitations for a claim of “misconduct by state
employees,” and thus the Court should use the six year statute
of limitations provided under Section 213 of the New York Civil
2
The continuing violation doctrine generally allows courts to consider
conduct that would be barred as untimely where the untimely conduct
constitutes an ongoing policy or discrimination even though certain acts,
standing alone, would be barred by the statute of limitations. Young, 2007
WL 1575256, at *4 (citations omitted). The doctrine is disfavored absent a
showing of compelling circumstances. Id. Plaintiff must show either (1) a
specific ongoing discriminatory policy or practice; or (2) specific and
related instances of discrimination that are permitted to continue unremedied
for so long as to amount to a discriminatory practice. See, e.g., id.
3
In 2002, the Supreme Court held that the continuing violation doctrine does
not apply to claims involving discrete discriminatory acts, as opposed to
claims alleging a hostile work environment. See Nat’l R.R. Passenger Corp.
v. Morgan, 536 U.S. 101, 113-115 (2002). The Morgan decision analyzed Title
VII claims and was based on the language of Title VII itself. See, e.g., id.
Courts have nonetheless applied this analysis in the context of Section 1983
claims. See, e.g., Young, 2007 WL 1575256, at *4 (analyzing Section 1983
claims for alleged violations of First, Eighth, and Fourteenth Amendment
rights); see also Sherman v. Town of Chester, 752 F.3d 554, 566-67 (2d Cir.
2014) (“Although this way of applying a statute of limitations[, analyzing
related conduct occurring before the period included in the statute of
limitations] is generally used in the employment discrimination context, we
have not limited it to that area alone.”) (collecting cases and applying the
doctrine to a Fifth Amendment takings claim).
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Practice Law and Rules (“CPLR”) governing causes of actions for
which no limitation period applies.
(Pl.’s Objections 11.)
Plaintiff alternatively argues that the five year statute of
limitations governing criminal prosecutions for offenses
involving misconduct in public office by a public servant is
also applicable.
30.10).)
stage.
(Id. (citing New York Criminal Procedure Law §
These arguments are procedurally improper at this
Howell, 2010 WL 930981, at *1.
Further, the Complaint
explicitly brings claims under Section 1983, and thus the threeyear statute of limitations governs.
(See, e.g., Compl. pgs. 2,
34, 36; Young, 2007 WL 1575256, at *4.)
There is no clear error in the Report’s recommendation that
Plaintiff’s claims are barred by the three-year statute of
limitations and are not saved by the continuing violation
doctrine.
Plaintiff has not specifically objected to the
Report’s factual finding that the alleged instances of improper
conduct constituted more than discrete acts.
Plaintiff instead
merely reiterates his previous arguments in conclusory fashion.
(See, e.g., Pl.’s Objections 13 (“The final incident, this being
the events of November 5, 2008 are temporally close enough in
sequence to find that a link existed from when the first
incident of misconduct occurred.”).)
Finding no clear error in
the Report’s recommendation, the Court grants Defendants’ motion
to dismiss Plaintiff’s Section 1983 claims seeking damages and
11
injunctive relief arising from events occurring before November
4, 2008 as time-barred.
5.
Plaintiff’s Claim for Emotional Distress
The Report recommends dismissing Plaintiff’s claim for
emotional distress as time-barred.
(Report 14-16.)
Plaintiff
does not specifically object to this finding but instead
generally argues that the five and six year statutes of
limitations under New York Criminal Law § 30.10 and C.P.L.R. §
213 are applicable.
(Pl.’s Objections 11.)
Under New York law,
claims for emotional distress must be brought within one year.
See Patterson v. Balsamico, 440 F.3d 104, 112 n.4 (2d Cir. 2006)
(citing C.P.L.R. § 215(3)).
The Court finds no clear error in
the Report’s finding that Plaintiff’s claim for emotional
distress is time-barred, given that the Complaint alleges that
the conduct causing severe emotional distress occurred between
May 2008 and November 5, 2008, while Plaintiff filed this cause
of action more than one year after these incidents, on November
4, 2011.
Accordingly, Plaintiff’s claim for intentional
infliction of emotional distress is DISMISSED as time-barred.
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6.
Plaintiff’s First Amendment Retaliation
Claims
The Report recommends that Plaintiff’s alleged instances of
speech are not protected under the First Amendment and therefore
do not support a retaliation claim.
(Report 16.)
The Report
concludes that Plaintiff’s speech was made as an employee to
protect his own interests, and not as a private citizen or on
matters of public concern.
(Id. at 16-17.)
Even assuming it
were protected speech, the Report concludes that Plaintiff
failed to demonstrate how his speech was a substantial or
motivating factor in the adverse employment action.
19.)
(Id. 18-
Plaintiff generally objects to the Report’s recommendation
by reiterating conclusory statements that his speech should be
construed as protected speech under the First Amendment.
e.g., Pl.’s Objections 13.)
(See,
The Court reviews this section of
the Report for clear error because Plaintiff’s objections merely
rehash his previous arguments.
See Indymac, 2008 WL 4810043, at
*1; see also Ortiz, 558 F. Supp. 2d at 451.
Whether Plaintiff’s speech is protected from retaliation
requires the Court to determine (1) whether the Plaintiff spoke
as a citizen on a matter of public concern, and, if so, (2)
whether the state agency had an adequate justification for
treating the Plaintiff differently from any other member of the
13
general public.
Ruotolo v. City of N.Y., 514 F.3d 184, 188 (2d
Cir. 2008) (citations and internal quotation marks omitted).
Whether Plaintiff’s speech addresses a matter of public concern
is a question of law for the Court, and it must be determined by
analyzing the content, form, and context of a given statement,
as revealed by the record as a whole.
Id. at 189; see also
Sousa v. Roque, 578 F.3d 164, 175 (2d Cir. 2009).
“A matter of
public concern” relates to “any matter of political, social, or
other concern to the community.”
Sousa, 578 F.3d at 175.
While
a speaker’s motive is not dispositive of the inquiry, “speech on
a purely private matter, such as an employee’s dissatisfaction
with the conditions of his employment, does not pertain to a
matter of public concern.”
Id.
Further, public employees
speaking in their official capacities are not speaking as
citizens for First Amendment purposes.
Ruotolo, 514 F.3d at 189
(citation omitted).
The Report found that Plaintiff’s speech was either merely
expressing internal grievances at his employment or was
otherwise solely motivated by his personal interest in not being
relocated to a different facility in a different borough.
(Report 16-18.)
In his objections, Plaintiff merely reiterates
arguments previously made and continues to assert that he did
not write the allegedly protected correspondence as a result of
any personal interest in maintaining his job. (See, e.g., Pl.’s
14
Objections 13.)
Plaintiff is merely reiterating his prior
arguments, which do not demonstrate that the speech related to a
matter of public concern.
The Court thus finds no clear error
in the Report’s recommendation.
Plaintiff’s claims for
retaliation under the First Amendment are therefore DISMISSED.
7.
Plaintiff’s Claims Against Defendants Carrion
and Murphy
The Report recommends that Plaintiff’s claims against
Defendants Carrion and Murphy be dismissed because the Complaint
fails to allege that either Defendant Carrion or Murphy was
directly or personally involved in the alleged retaliatory acts
(the forced resignation).
(Report 19-20.)
Supervisory
liability in a Section 1983 action requires “(1) actual direct
participation in the constitutional violation, (2) failure to
remedy a wrong after being informed through a report or appeal,
(3) creation of a policy or custom that sanctioned conduct
amounting to a constitutional violation, or allowing such a
policy or custom to continue, (4) grossly negligent supervision
of subordinates who committed a violation, or (5) failure to act
on information indicating that unconstitutional acts were
occurring.”
Hernandez v. Keane, 341 F.3d 137, 145 (2d Cir.
2003) (citation omitted).
Because supervisory liability under
15
Section 1983 requires some sort of personal involvement by the
superiors, liability cannot rest on the theory of respondeat
superior.
Id. at 144-45.
Plaintiff does not specifically object to the Report’s
recommendation and instead merely repeats his argument that
Plaintiff’s denied Freedom of Information Law requests may have
shed light on whether Defendants Carrion and Murphy were
directly involved in the allegedly improper conduct.
(Objections 4, 6-7, 11.)
Plaintiff is merely rehashing his
earlier arguments, and thus the Court reviews this section of
the Report for clear error.
Indymac, 2008 WL 4810043, at *1;
see also Ortiz, 558 F. Supp. 2d at 451.
The Report properly
concludes that the Complaint fails to allege that Defendants
Carrion and Murphy were directly involved in the alleged
retaliatory acts.
Accordingly, the Court finds no clear error
and DISMISSES Plaintiff’s claims against Defendants Carrion and
Murphy.
8.
Plaintiff’s Claims Against Defendants In
Their Individual Capacities
The Report recommends dismissing Plaintiff’s claims against
Defendants in their individual capacities because each defendant
is shielded from liability by the doctrine of qualified
16
immunity.
(Report 20-21.)
This is because (1) Plaintiff failed
to allege facts which would constitute a constitutional
violation, (2) no constitutional rights were clearly established
at the time of the incident, and (3) each individual defendant’s
action was objectively reasonable.
(Report 21.)
Qualified immunity is a doctrine that protects government
officials from liability for civil damages “insofar as their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.”
Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
Courts are to
analyze the following two issues in the order most appropriate
under the circumstances: (1) whether a Constitutional right
would have been violated on the facts alleged, and (2) whether
the constitutional right was “clearly established” at the time
of the violation.
Id. at 236.4
The Report found that Plaintiff
failed to defeat the qualified immunity defense because
Plaintiff failed to allege facts that would constitute a
4
The Report was in error to the extent it stated that the first inquiry must
be whether a constitutional right would have been violated on the facts
alleged, turning only to whether the right was clearly established after such
an inquiry. (Report 20-21.) The Supreme Court in Pearson reconsidered this
procedure and held that the order that the Magistrate Judge applied is no
longer mandatory; instead “district courts and the courts of appeals should
be permitted to exercise their sound discretion in deciding which of the two
prongs of the qualified immunity analysis should be addressed first in light
of the circumstances in the particular case at hand.” Pearson, 555 U.S. at
236. The Report’s error is harmless though, because Plaintiff’s claims fail
regardless of which prong is addressed first.
17
constitutional violation.
(Report 21.)
Plaintiff does not
specifically object to any of the Report’s findings regarding
qualified immunity; instead, Plaintiff merely reiterates his
arguments that his denied Freedom of Information Law requests
may shed light on this issue.
11.)
(See, e.g., Pl.’s Objections 2-
The Court therefore reviews this portion of the Report for
clear error.
Finding none, the Court DISMISSES Plaintiff’s
claims against the individual defendants on the grounds of
qualified immunity.
III.
Conclusion
Having conducted the appropriate levels of review of the
Report and Recommendation of United States Magistrate Judge
Ronald L. Ellis dated April 29, 2013, this Court APPROVES, and
ADOPTS the factual findings and recommendations as modified
herein.
Accordingly, Defendants’ Motion to Dismiss is GRANTED
in its entirety.
The Clerk of Court is directed to close the
docket in this case.
Dated:
March 23, 2015
New York, New York
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