Ficklin v. Rusinko

Decision Date08 January 2019
Docket Number6:18-CV-06310 EAW
Citation351 F.Supp.3d 436
Parties Terrick FICKLIN, Plaintiff, v. Douglas RUSINKO, Carl Jason, and Kathryn VanDusen, Defendants.
CourtU.S. District Court — Western District of New York

Michael Jos. Witmer, Rochester, NY, for Plaintiff.

Gary M. Levine, New York State Office of the Attorney General, Rochester, NY, for Defendants.


ELIZABETH A. WOLFORD, United States District Judge


Plaintiff Terrick Ficklin ("Plaintiff") commenced this action on April 20, 2018, alleging that Parole Officers Douglas Rusinko ("P.O. Rusinko") and Carl Jason ("P.O. Jason") unlawfully arrested him and subjected him to an unwarranted and illegal body cavity search in order to obtain information about crimes unrelated to his parole status. (Dkt. 1). Plaintiff also alleges that Parole Officer Kathryn VanDusen ("P.O. VanDusen") unlawfully arrested him on a separate occasion without a warrant. (Id. at 15-16). Plaintiff asserts claims against P.O. Rusinko, P.O. Jason, and P.O. VanDusen (collectively, "Defendants") under the Federal and New York State Constitutions, 42 U.S.C. § 1983, the New York Civil Rights Law, and New York common law. (Id. at 7-17).

Presently before the Court is Defendants' motion to dismiss for failure to state a claim. (Dkt. 5). For the following reasons, Defendants' motion is granted in part and denied in part.


The following facts are drawn from Plaintiff's Complaint unless otherwise indicated and are assumed true for purposes of this motion. (Dkt. 1). On April 22, 2015, Plaintiff, who had been released on parole supervision, received a telephone call from P.O. Rusinko, who requested information about "another person supervised" by the New York State Division of Parole (the "Division"). (See id. at ¶¶ 3, 10-11). At the time he received the call, Plaintiff was in a convenience store to purchase several items. (Id. at ¶ 10). Sataira Carter ("Carter"), Plaintiff's girlfriend, arrived at the convenience store shortly thereafter, and exited the driver's side of the vehicle to greet Plaintiff. (Id. at ¶¶ 13-14). Although Plaintiff "was not allowed to drive a car while he was being supervised," he entered the driver's side of the vehicle to speak with Carter inside the car. (Id. at ¶ 15). While Carter and Plaintiff were inside the vehicle, P.O. Jason drove up next to the car, and said, "Now you're going to jail for driving." (Id. at ¶¶ 16-17).

Despite Plaintiff's insistence that "the car wasn't on and he was just in the driver's side," P.O. Jason had Plaintiff exit the vehicle and then handcuffed him before placing Plaintiff in the parole car with an unidentified parole officer. (Id. at ¶¶ 18, 20). P.O. Rusinko drove up to the parole vehicle and said to Plaintiff, "Why the fuck you couldn't just give us the information? We would have let you go." (Id. at ¶¶ 22-23). Plaintiff informed the parole officers that he had to urinate before they left for the Division's Rochester office. (Id. at ¶¶ 21, 29). During the drive, P.O. Jason said to Plaintiff, "Why do you keep moving around back there? Are you putting drugs in your ass?" (Id. at ¶ 30).

After arriving at the Division's Rochester office, the parole officers brought Plaintiff into a bathroom and assisted Plaintiff to urinate while he remained handcuffed. (Id. at ¶¶ 34-39). P.O. Jason then stated to Plaintiff that "we got a call that you have drugs in your ass." (Id. at ¶ 40). Plaintiff indicated that "he did not have any drugs in his rectum," as P.O. Rusinko placed two plastic gloves over his hands and lubricated them. (Id. at ¶¶ 41, 43-44). P.O. Rusinko then forced his hand into Plaintiff's rectum, but he did not find any drugs. (Id. at ¶¶ 47-51).

After the body cavity search concluded, P.O. Jason said, "Oh, you're not going to jail," and noted that Plaintiff "should have helped us." (Id. at ¶¶ 57-58). P.O. Rusinko then asked Plaintiff questions about "an unrelated crime," but Plaintiff "did not answer any questions because of his emotional state." (Id. at ¶¶ 61-62). P.O. Rusinko helped Plaintiff urinate in the bathroom once more before driving him to the Monroe County Jail, where he was placed in custody. (See id. at ¶¶ 63-73, 76). During the drive, P.O. Rusinko stated, "I need the information." (Id. at ¶ 74).

P.O. Rusinko returned to the Monroe County Jail two days later to serve a notice of violation of release upon Plaintiff. (Id. at ¶ 77). At this time, Plaintiff told P.O. Rusinko "that what he did was wrong and that he was going to challenge the violation because he was sodomized." (Id. at ¶ 78). In response, P.O. Rusinko said, "You're really gonna go forward with this? I'm gonna make sure you get 18 months in prison." (Id. at ¶ 79).

Over a year later, or about August 8, 2016, Plaintiff was "stabbed ... 20-30 times by someone alleged to be supervised by" the Division. (Id. at ¶ 138). At some point after the alleged stabbing took place, P.O. VanDusen arrested Plaintiff without a warrant and before any criminal charges had been filed. (Id. at ¶¶ 137, 139). Plaintiff was then imprisoned until September 8, 2017. (Id. at ¶ 141).


On April 20, 2018, Plaintiff commenced this action against Defendants, alleging various theories of liability under federal and state constitutional and statutory provisions and under New York State common law. (Dkt. 1). On June 28, 2018, Defendants moved to dismiss each cause of action in the Complaint except for Plaintiff's sixth cause of action alleging an excessive use of force claim pursuant to the Fourth Amendment. (Dkt. 5). Plaintiff opposes Defendants' motion. (Dkt. 7).

I. Legal Standard

"In considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), a district court may consider the facts alleged in the [pleading], documents attached to the [pleading] as exhibits, and documents incorporated by reference in the [pleading]." DiFolco v. MSNBC Cable L.L.C. , 622 F.3d 104, 111 (2d Cir. 2010). A court should consider the motion by "accepting all factual allegations as true and drawing all reasonable inferences in favor of the [claimant]." Trs. of Upstate N.Y. Eng'rs Pension Fund v. Ivy Asset Mgmt. , 843 F.3d 561, 566 (2d Cir. 2016), cert. denied , ––– U.S. ––––, 137 S.Ct. 2279, 198 L.Ed.2d 703 (2017). To withstand dismissal, a claimant must set forth "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "A claim has facial plausibility when the [claimant] pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Turkmen v. Ashcroft , 589 F.3d 542, 546 (2d Cir. 2009) (quoting Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ).

"While a [pleading] attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a [claimant]'s obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly , 550 U.S. at 555, 127 S.Ct. 1955 (internal quotations and citations omitted). "To state a plausible claim, the [pleading]'s [f]actual allegations must be enough to raise a right to relief above the speculative level.’ " Nielsen v. AECOM Tech. Corp. , 762 F.3d 214, 218 (2d Cir. 2014) (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ).

II. New York Correction Law § 24
A. General Principles

" New York Correction Law § 24 provides that New York courts lack jurisdiction over claims for money damages brought against [the Department of Corrections and Community Supervision] and Parole officials in their personal capacities arising from conduct within the scope of their employment." Hassell v. Fischer , 96 F.Supp.3d 370, 385 (S.D.N.Y. 2015) (footnote omitted), aff'd , 879 F.3d 41 (2d Cir. 2018). Specifically, § 24 provides, in pertinent part:

No civil action shall be brought in any court of the state, except by the attorney general on behalf of the state, against any officer or employee of the department, which for purposes of this section shall include members of the state board of parole, in his or her personal capacity, for damages arising out of any act done or the failure to perform any act within the scope of the employment and in the discharge of the duties by such officer or employee.

N.Y. Correct. Law § 24(1).1 Section 24(2)"requires that state law claims for damages against corrections officers ‘shall be brought ... [as] claim[s] against the state.’ This provision, by its plain terms, precludes the assertion of claims against corrections officers in any court, including the federal courts." Baker v. Coughlin , 77 F.3d 12, 15 (2d Cir. 1996).

Plaintiff's first, second, third, fifth, eighth, ninth, and eleventh causes of action allege various state law claims against Defendants. (Dkt. 1 at 7-8, 10, 15-17). Defendants argue that these claims should be dismissed for lack of subject matter jurisdiction pursuant to New York Correction Law § 24. (Dkt. 5-2 at 3-4). In response, Plaintiff argues that Defendants were not acting "within the scope of the[ir] employment and in the discharge of the[ir] duties" as parole officers. N.Y. Correct. Law § 24(1) ; (see Dkt. 7 at 3-4).

"The jurisdictional limitation of § 24 is broad, and ‘immunity is not necessarily unavailable simply because the challenged conduct is violative of regulations of the Department of Correctional Services, or otherwise beyond an officer's authority.’ " Johnson v. N.Y. State Dep't of Corr. Servs. & Cmty. Supervision , No. 11-CV-079S, 2013 WL 5347468, at *2 (W.D.N.Y. Sept. 23, 2013) (quoting Ierardi v. Sisco , 119 F.3d 183, 187 (2d Cir. 1997) ). "But the protection afforded by Section 24 is not absolute. The legislature has limited its availability to acts or omissions occurring ‘within the scope of [an officer's] employment and in the discharge...

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