Oliver v. Penny
| Decision Date | 11 December 2020 |
| Docket Number | 1:19-cv-00233 (BKS/DJS) |
| Parties | JEAN OLIVER, Plaintiff, v. DANIEL PENNY, in his individual and official capacity; THOMAS CAPEZZA, in his individual and official capacity; CLAY LODOVICE, in his individual and official capacity; JOHN HARFORD, in his individual and official capacity; MICHAEL VOLFORTE, in his individual and official capacity; LOIS GOLAND, in her individual and official capacity; and JASON HUGHES, in his individual and official capacity, Defendants. |
| Court | U.S. District Court — Northern District of New York |
Appearances:
Plaintiff pro se:
Jean Oliver
Elma, NY
For Defendants:
Letitia James
Attorney General of the State of New York
Denise P. Buckley
Assistant Attorney General
The Capitol
Albany, NY 12224
MEMORANUM-DECISION AND ORDER
Plaintiff pro se Jean Oliver brings this action, which stems from her employment with and termination from the New York State Police ("NYSP"), against the former head of the NYSP Internal Affairs Bureau ("IAB"), Daniel Penny, and six legal counsel for the NYSP: Thomas Capezza, Clay Lodovice, John Harford, Michale Volforte, Lois Goland, and Jason Hughes. (Dkt. No. 1). Plaintiff has filed several federal and state actions related to her former employment with the NYSP, including an unsuccessful Article 78 proceeding challenging the NYSP's decision to terminate her employment, Oliver v. D'Amico, 151 A.D.3d 1614 (4th Dep't 2017), and an employment discrimination action against the NYSP and ten of its employees which is currently pending before this Court, Oliver v. NYSP et al. ("Oliver 2015"), 1:15-cv-444 (BKS/DJS) (N.D.N.Y. filed April 14, 2015).1
The Second Amended Complaint at issue here alleges the following claims against the NYSP attorneys and Penny, the former head of the NYSP IAB: a First Amendment retaliation claim under 42 U.S.C. § 1983; hostile work environment, gender discrimination, and retaliation claims under the Equal Protection Clause of the Fourteenth Amendment, 42 U.S.C. § 1983, and the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 290 et seq.; and conspiracy, and failure to prevent conspiracy, claims under 42 U.S.C. §§ 1983, 1985, 1986. (Dkt. No. 45). Presently before the Court is Defendants' motion under Federal Rule of Civil Procedure 12(b)(6) to dismiss the Second Amended Complaint. (Dkt. No. 52). Plaintiff opposes this motion (Dkt. No. 55). Defendants' motion is granted because, as set forth below, the claims involving alleged conduct before the March 2016 operative complaint in Oliver 2015 are duplicative and, in any event, Plaintiff's Second Amended Complaint fails to state a claim.
Plaintiff filed Oliver 2015 pro se in the Northern District of New York on April 14, 2015, naming only the NYSP as a defendant. Oliver 2015, No. 15-cv-444, Dkt. No. 1. She obtainedcounsel and then filed an amended counseled complaint in Oliver 2015, adding ten NYSP employees as defendants. Oliver 2015, No. 15-cv-444, Dkt. No. 29. On March 29, 2016, Plaintiff filed a second amended counseled complaint in Oliver 2015. Oliver 2015, No. 15-cv-444, Dkt. No. 37. Following extensive discovery and summary judgment litigation, Plaintiff's employment discrimination claims in Oliver 2015, against the NYSP and three of her former supervisors, are trial ready. See Oliver v. NYSP, No. 15-cv-444, 2020 WL 1989180, 2020 U.S. Dist. LEXIS 73284 (N.D.N.Y. Apr. 27, 2020).
Plaintiff filed two actions pro se in the Western District of New York, naming the NYSP and others, when Oliver 2015 was pending in the Northern District of New York. Plaintiff filed this action on November 9, 2017. (Dkt. No. 1). Defendants moved for a more definite statement under Fed. R. Civ. P. 12(e) and Plaintiff moved to transfer the case to the Northern District of New York under 28 U.S.C. § 1404(a). (Dkt. Nos. 6, 16). On February 9, 2019, United States District Judge Elizabeth A. Wolford granted both motions. Oliver v. New York State Police ("Oliver 2017 I"), No. 17-cv-01157, 2019 WL 453363, at *10, 2019 U.S. Dist. LEXIS 18488, at *29-30 (W.D.N.Y. Feb. 5, 2019). Judge Wolford found that the Complaint was a "shotgun pleading" with "voluminous factual allegations followed by a list of 20 causes of action, none of which are tied" to the facts alleged. Id. Judge Wolford ordered Plaintiff to provide "a more definite statement in which she sets forth the particular facts that support each of her claims." Id. at *10, 2019 U.S. Dist. LEXIS 18488, at *30. Judge Wolford transferred the case to the Northern District of New York, where it was opened on February 20, 2019. (Dkt. No. 1). Id. at *10, 2019 U.S. Dist. LEXIS 18488, at *29-30.2
On April 3, 2019, Plaintiff filed an "Affirmation for a More Definitive Statement." (Dkt. No. 28). In response, Defendants moved to dismiss the Complaint under Fed. R. Civ. P. 12(b)(1) and 12(b)(6). (Dkt. Nos. 28, 31). In a Memorandum-Decision and Order entered on April 13, 2020, the Court dismissed the Complaint but, mindful of Plaintiff's pro se status, gave her leave to file an amended complaint with respect to all but her claims under Title VII3 and USERRA4 and her § 1983 claim against the NYSP, which was barred by sovereign immunity. Oliver v. NYSP ("Oliver 2017 II"), No. 19-cv-233, 2020 WL 1849484, at *11, 2020 U.S. Dist. LEXIS 64150, at *30-32 (N.D.N.Y. April 13, 2020).
On May 13, 2020, Plaintiff filed a ninety-five page Amended Complaint. (Dkt. No. 41). Like the original Complaint, the Amended Complaint contained sex discrimination, hostile work environment, and retaliation claims under Title VII, (Dkt. No. 41, ¶¶ 152-53, 155), sex discrimination and retaliation claims under the Equal Protection Clause of the Fourteenth Amendment, (Dkt. No. 41, ¶¶ 154, 156), conspiracy, and failure to prevent a conspiracy, to commit sex discrimination, hostile work environment, and retaliation claims, 42 U.S.C. §§ 1983, 1985(3), 1986, (Dkt. No. 41, ¶¶ 157-65), sex discrimination and retaliation claims under the NYSHRL, (Dkt. No. 41, ¶¶ 166-67), and claims under the New York Civil Service Law and New York Labor Law, (Dkt. No. 41, ¶¶ 169-70).
After reviewing the Amended Complaint, the Court dismissed it sua sponte as it, inter alia, continued to assert: claims against the NYSP and Title VII claims, which the Court previously dismissed with prejudice; and claims against Defendant Christensen, which were duplicative of the claims in Oliver I. Oliver v. NYSP ("Oliver 2017 III"), No. 19-cv-233, 2020 WL 2513689, at *1-2, 2020 U.S. Dist. LEXIS 85695, at *4-6 . In addition, the Court found the Amended Complaint failed to tie the facts to the causes of action or identify the Defendants against whom Plaintiff intended to assert her causes of action. Id. at *2, 2020 U.S. Dist. LEXIS 85695, at *3. The Court cautioned Plaintiff that the lengthy recitation of the facts from Oliver 2015 in the 95-page Amended Complaint violated the directive in Fed. R. Civ. P. 8(a)(2) that a complaint contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Id. at *2, 2020 U.S. Dist. LEXIS 85695, at *5. The Amended Complaint also contained claims under the New York Civil Service Law and New York Labor Law, which the Court had not given Plaintiff permission to amend; accordingly the Court dismissed those claims instructing Plaintiff that in order to add these claims "she must file a motion to amend, demonstrating how such claims are legally and factually supported here." Id. at *2, 2020 U.S. Dist. LEXIS 85695, at *3-4. In view of Plaintiff's pro se status, the Court gave Plaintiff leave to file a Second Amended Complaint but instructed Plaintiff that as she had not addressed her New York Civil Service or Labor Law claims in her "Affirmation for a More Definitive Statement," she must file a motion to amend in order to reassert those claims. Id. at *2, 2020 U.S. Dist. LEXIS 85695, at *3-4.
Plaintiff ignored the Court's directive to submit a complaint containing a "short and plain statement of the claim showing that the pleader is entitled to relief," in accord with Fed. R. Civ. P. 8(a)(2). On May 27, 2020, Plaintiff filed a 130-page Second Amended Complaint, togetherwith a 28-page affidavit outlining "the historical facts of this case," most of which was a repetition of the facts at issue in Oliver 2015. (Dkt. Nos. 45, 45-1). On review, the Court dismissed the claims against the NYSP, as barred by sovereign immunity, the Title VII claims and the claims against Defendant Christensen and 28-page affidavit as duplicative of Oliver 2015, and the New York Civil Service and Labor Law claims for failure to file a motion to amend. (Dkt. No. 48). Defendants now move under Rule 12(b)(6) to dismiss the remainder of the Second Amended Complaint. (Dkt. No. 52).
The Court assumes the parties' familiarity with the Plaintiff's allegations of employment discrimination in Oliver 2015, which are set forth in detail in the Court's summary judgment ruling in Oliver 2015.6 Oliver 2015, 2020 WL 1989180, 2020 U.S. Dist. LEXIS 73284. As the allegations in Oliver 2015 are relevant to the consideration of whether the present case is duplicative, the Court provides a brief summary.
Plaintiff was employed by the NYSP from 1997 to 2005, first as a Trooper and later as an Investigator. Oliver 2015, 2020 WL 1989180, at *2, 2020 U.S. Dist. LEXIS 73284, at *3-4. From 2008 to 2014, Plaintiff worked as an undercover narcotics investigator on the Community Narcotics Enforcement Team Western ("CNET West") and in the Counter-Terrorism Intelligence Unit ("CTIU") from 2014 to July 14, 2015. Id. at *2, 2020 U.S. Dist. LEXIS 73284,at *4-5. Plaintiff was terminated following a disciplinary...
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