Castro v. Schriro

• Decision Date: 28 June 2016
• Citation: 140 A.D.3d 644,2016 N.Y. Slip Op. 05105,34 N.Y.S.3d 44
• Parties: In re Raymond CASTRO, Petitioner–Appellant, v. Dr. Dora SCHRIRO, etc., et al., Respondents–Respondents.
• Court: New York Supreme Court — Appellate Division

140 A.D.3d 644

34 N.Y.S.3d 44

2016 N.Y. Slip Op. 05105

In re Raymond CASTRO, Petitioner–Appellant,

v.Dr. Dora SCHRIRO, etc., et al., Respondents–Respondents.

Supreme Court, Appellate Division, First Department, New York.

June 28, 2016.

Koehler & Isaacs LLP, New York (Liam L. Castro of counsel), for appellant.

Zachary W. Carter, Corporation Counsel, New York (Ingrid R. Gustafson of counsel), for respondents.

ACOSTA, J.P., RENWICK, ANDRIAS, MOSKOWITZ, JJ.

Judgment, Supreme Court, New York County (Carol E. Huff, J.), entered August 21, 2014, denying the petition seeking to annul respondents' determination, dated July 19, 2013, which terminated petitioner's employment as a probationary correction officer, and granting respondents' cross motion to dismiss the proceeding brought pursuant to CPLR article 78, reversed, on the law, without costs, the petition reinstated, and the matter remanded to Supreme Court for further proceedings.

Petitioner Raymond Castro commenced this article 78 proceeding to contest respondent New York City Department of Correction's (DOC) termination of his employment as a probationary correction officer. His termination occurred after an inmate died because petitioner's superior, a captain, thwarted the efforts of several people, including Officer Castro, to assist the inmate with his medical condition. Officer Castro cooperated in the investigation of the inmate's death and the federal prosecution of his superior. As fully detailed below, on the present record, Officer Castro's conduct, both in response to the inmate's medical emergency and during the investigation of the inmate's death, appears appropriate. Likewise, Officer Castro's termination, without an explanation, appears questionable and in bad faith. Under the circumstances, this Court is unable to conclude that his claim of wrongful termination as a probationary correction officer is without foundation to warrant a pre-answer dismissal based solely on the ground that it fails to state a cause of action.

Factual Background

In this pre-answer context, the essential facts are strictly gathered from the petition. Because this case arises on a motion to dismiss this article 78 petition under CPLR 3211, we take the facts alleged by petitioner to be true. Where the allegations are ambiguous, we resolve the ambiguities in petitioner's favor.

The verified petition states that on August 17, 2012, Officer Castro was assigned to the Mental Health Assessment Unit (MHAU) at the George R. Vierno Center (GRVC) on Rikers Island. Officer Castro's shift began at 3:00 p.m. and ended at 11:00 p.m. The MHAU is a unit to which DOC sends inmates who are under mental observation and have a disciplinary history. These particular inmates are sent there for housing in traditional cells.

On that day, Officer Castro was assigned to housing area 11A, which had 25 cells, and was on the first tier. A second officer was assigned to another section of housing area 11A, which also had 25 cells but was on the second tier. During Officer Castro's tour, there was one supervising captain for his area. Officer Castro's duties included the care, custody, and control of the inmates therein. To those ends, Officer Castro regularly toured the area where the inmates were housed.

At some point during his 3:00 p.m. to 11:00 p.m. shift, as Officer Castro toured the cells, inmate Echevarria, who was in his cell, told Officer Castro that he swallowed a soap ball, which contained bleach, and that he wanted to get medical attention. Officer Castro immediately informed the officer assigned to the “bubble” or watch post of what the inmate said. Officer Castro could only inform the bubble officer of the situation because Officer Castro's post did not have a phone. That second officer (the bubble officer) informed Officer Castro that the captain was about to tour the area.

Moments later, Captain Pendergrass and Officer Castro met at the housing area 11A desk. There, Officer Castro informed his superior of what Echevarria had said. Officer Castro did this in order to obtain permission from Captain Pendergrass to contact medical staff, or to otherwise obtain instruction from him. Captain Pendergrass instructed Officer Castro that there was no need to contact medical staff. Instead, Captain Pendergrass told Officer Castro, “[D]on't call me if you have live, breathing bodies. Only call me if you need an extraction, or if you have a dead body. Tell him [the inmate] to hold that” (second alteration in petition).

Sometime thereafter, Officer Castro began another tour of the area. During this second tour, Officer Castro noticed vomit in Echevarria's cell. Again, Officer Castro informed his superior, Captain Pendergrass, of his observations. At the time, Captain Pendergrass was inside of the bubble. Again, Captain Pendergrass instructed Officer Castro to tell the inmate to “[h]old it” (alteration in petition).

Within one hour thereafter, a pharmacy technician and her escort officer began medical rounds to provide certain inmates with medication. The pharmacy technician informed Officer Castro that she noticed that Echevarria needed medical attention. Officer Castro informed the technician that he would notify the Captain, and that she should do the same as well. Officer Castro then went to Captain Pendergrass along with the escort officer. The escort officer, officer Lizarte, informed Captain Pendergrass that the inmate claimed he ingested a soap ball with bleach and needed medical attention. Captain Pendergrass ordered Officer Lizarte to write a report. At that time, Officer Castro attempted to contact medical staff, but could not find the medical number on an old and faded phone contact list. The phone that Officer Castro attempted to use was in the bubble. Captain Pendergrass approached Officer Castro and asked, “[D]id you contact anyone of significance.” Officer Castro informed his superior that he was looking for the extension number to the medical staff. Captain Pendergrass then ordered Officer Castro to take his post. Officer Castro again informed him that he was looking for the medical number. Captain Pendergrass then said, “I am giving you a direct order to take your post.” Officer Castro complied with the captain's order.

After Officer Castro manned his post, Officer Lizarte arrived at Officer Castro's desk with a blank report form, and began to write his report. Moments later, Captain Pendergrass asked Officer Lizarte if he was sure he had heard the inmate correctly. Officer Lizarte responded, “[Y]es.” Captain Pendergrass then said, “I believe you heard him incorrectly. I just spoke to the nurse and she did not hear that at all.” Captain Pendergrass then ordered Officer Lizarte to follow him, and they left the area.

At some point thereafter, Officer Castro noticed that Captain Pendergrass went to Echevarria's cell, remained there for a few seconds, and then left the area. Officer Castro was relieved of his post at 11:30 p.m. The next day, another officer informed Officer Castro that Echevarria was found dead in his cell in the morning, many hours after Officer Castro had been relieved of his post.

In the days and months after the incident, Officer Castro was ordered to verbally inform DOC of his involvement with Echevarria, and then was interviewed by the DOC, the United States Attorney's Office for the Southern District of New York, the City's Department of Investigation, and the New York County's District Attorney's Office. Eventually, in May 2014, Captain Pendergrass was federally indicted. In December 2015, Pendergrass was convicted of violating inmate Echevarria's Civil Rights under the Due Process Clause of the 14th Amendment of the United States Constitution. In July 2015, he was sentenced to five years in prison.

Meanwhile, in July 2013, Officer Castro was terminated from his employment as a probationary correction officer. After exhausting his administrative remedies, Officer Castro commenced this article 78 proceeding seeking an order aning DOC's determination. Prior to serving an answer, DOC moved to dismiss the petition, contending only that petitioner had failed to state a cause of action. Supreme Court granted the motion and dismissed the petition. This appeal ensued.

Discussion

A probationary employee may be dismissed for almost any reason, or for no reason at all, and the employee has no right to challenge the termination in a hearing or otherwise, absent a showing that he or she was dismissed in bad faith or for an improper or impermissible reason (see Matter of Swinton v. Safir, 93 N.Y.2d 758, 762–763, 697 N.Y.S.2d 869, 720 N.E.2d 89 [1999] ). The burden falls on the petitioner to demonstrate by competent proof that bad faith exists, or that the termination was for an improper or impermissible reason (see Matter of Che Lin Tsao v. Kelly, 28 A.D.3d 320, 321, 812 N.Y.S.2d 522 [1st Dept.2006] ).

This case presents the unique procedural scenario where DOC sought to dismiss this article 78 petition at the pre-answer stage on the sole ground that the petition fails to state a cause of action. We disagree with Supreme Court's determination that the petition fails to sufficiently state a claim of improper termination of a probationary correction officer. On the contrary, petitioner alleges that his termination was arbitrary and capricious, and in bad faith. In addition, petitioner provides a factual predicate for his allegations. In sum and substance, the petition avers that despite serving as a correction officer who acted in complete accord with DOC's rules and proper protocol, pursuant to orders from his supervisor, and in full cooperation with the investigation of inmate Echevarria's death, which lead to Captain Pendergrass' indictment, Officer Castro was inexplicably terminated.

For instance, with regard to his activities in response to the inmate's statement that he had harmed himself by swallowing a soap ball, Officer Castro alleges that he acted pursuant to “normal protocol”...