Quirk v. DiFiore

• Decision Date: 28 January 2022
• Docket Number: 20-CV-5027 (JPO)
• Citation: 582 F.Supp.3d 109
• Parties: Dennis W. QUIRK, as president of and on behalf of the New York State Court Officers Association, Plaintiff, v. Honorable Janet DIFIORE, Chief Judge of the State of New York, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

582 F.Supp.3d 109

Dennis W. QUIRK, as president of and on behalf of the New York State Court Officers Association, Plaintiff,

v.Honorable Janet DIFIORE, Chief Judge of the State of New York, et al., Defendants.

20-CV-5027 (JPO)

United States District Court, S.D. New York.

Signed January 28, 2022

Thomas Martin Gambino, Law Office of Thomas M. Gambino & Associates PC, Poughkeepsie, NY, Pat Bonanno, Pat Bonanno & Associates, P.C., White Plains, NY, for Plaintiff.

James Martin Thompson, New York State Office of the Attorney General, New York, NY, for Defendant Honorable Janet DiFiore.

Lisa M. Evans, NY State Office of Court Administration, New York, NY, for Defendant New York State Office of Court Administration.

OPINION AND ORDER

J. PAUL OETKEN, District Judge:

Plaintiff Dennis Quirk, president of the New York State Court Officers Association ("NYSCOA"), brings this action individually and on behalf of the NYSCOA, alleging deprivation of his First and Fourteenth Amendment rights to free speech and free association, conspiracy to deprive him of his constitutional rights under 42 U.S.C. § 1983, violations of the Occupational Safety and Health Act ("OSHA"), "imminent and substantial endangerment," and violations of New York's whistleblower statute and common law of public nuisance. These claims all stem from the alleged failure of Defendant Office of Court Administration ("OCA") to implement protocols within New York state courthouses to adequately address health and safety concerns relating to COVID-19. Quirk claims that Defendants retaliated against him for his speech advocating improved COVID-19 protocols with threats of disciplinary measures and termination. Defendant Chief Judge DiFiore and Defendant OCA move to dismiss the complaint for failure to state a claim upon which relief can be granted and lack of subject matter jurisdiction, respectively. For the reasons that follow, both motions are granted.

I. Background

The following facts are drawn from the complaint and assumed true for the purposes of this motion. (See Dkt. No. 2 ("Compl.").)

Quirk is a New York State court officer and the president of the NYSCOA, a labor union representing approximately 1,500 court officers throughout the state. (Compl. ¶¶ 3–4.) The Honorable Janet DiFiore is the Chief Judge of the State of New York and the head of the OCA. The OCA, which is the executive branch of the state court system, is responsible for promulgating rules that protect the state judiciary and its employees, including creating policies to address safety measures related to the spread of COVID-19. (Compl. ¶ 7.) Defendants "John Does 1–5" are individuals who worked under the direction of Chief Judge DiFiore during the incidents described in Quirk's complaint. (Id. )

Since the start of the COVID-19 pandemic, Quirk has "consistently and vigorously objected to the lack of PPE [(personal protective equipment)] and properly sterilized work areas for UNION members." (Compl. ¶ 17.) Because of Defendants’ failure to provide PPE to NYSCOA members and properly sterilize work areas within state courthouses, court officers allegedly have been, and continue to be, exposed to COVID-19. (Compl. ¶ 18.) On information and belief, Quirk submits that at least three members of the NYSCOA passed away after contracting COVID-19. (Compl. ¶ 18 n.1.) Quirk wrote a letter to Chief Judge DiFiore about his concerns with the OCA's COVID-19 protocols on March 12, 2020. (Compl. ¶ 24.) Additionally, before the start of the pandemic, Quirk submitted requests pursuant to the New York Freedom of Information Law ("FOIL"), seeking production of documents regarding the OCA's budget. Defendants have never responded to Quirk's FOIL requests. (Compl. ¶¶ 13, 15, 16.)

Because of Quirk's consistent objections about the OCA's COVID-19 protocols, his letter to Chief Judge DiFiore, and his previous FOIL requests, Defendants retaliated against him. Quirk was "threatened with disciplinary action by Defendants, including an interrogation, threat of suspension and possible termination from employment." (Compl. ¶ 22.)

Quirk filed his complaint against Defendants in July 2020, alleging deprivation of his First and Fourteenth Amendment rights to free speech and free association, conspiracy to deprive him of his constitutional rights under 42 U.S.C. § 1983, violations of OSHA, "imminent and substantial endangerment," and violations of New York's whistleblower statute and common law of public nuisance. (See Compl.) The OCA, on its own behalf and on Chief Judge DiFiore's behalf to the extent that she is being sued in her official capacity, moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(1), arguing that this Court lacks subject matter jurisdiction because of Eleventh Amendment sovereign immunity. (Dkt. No. 63.) Chief Judge DiFiore, in her individual capacity, also moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6) because she asserts that Quirk's claims all fail as a matter of law. (Dkt. No. 65.)

II. Legal Standard

Rule 12(b)(1) requires that a claim be dismissed for lack of subject matter jurisdiction "when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States , 201 F.3d 110, 113 (2d Cir. 2000). "A plaintiff has the burden of showing by a preponderance of the evidence that subject matter jurisdiction exists." Lunney v. United States , 319 F.3d 550, 554 (2d Cir. 2003). "In a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1), the defendant may challenge either the legal or factual sufficiency of the plaintiff's assertion of jurisdiction, or both." Robinson v. Gov't of Malaysia , 269 F.3d 133, 140 (2d Cir. 2001).

To survive a Rule 12(b)(6) motion to dismiss for failure to state a claim, a plaintiff must plead "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 is facially plausible when a plaintiff pleads facts that would allow "the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). "The Court must accept as true all well-pleaded factual allegations in the complaint, and ‘draw [ ] all inferences in the plaintiff's favor.’ " Goonan v. Fed. Rsrv. Bank of N.Y. , 916 F. Supp. 2d 470, 478 (S.D.N.Y. 2013) (alteration in original) (quoting Allaire Corp. v. Okumus , 433 F.3d 248, 249–50 (2d Cir. 2006) ). However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937.

III. Claims Against OCA and Chief Judge DiFiore in her Official Capacity

OCA asserts that the Court lacks subject matter jurisdiction over Plaintiff's claims because the Eleventh Amendment bars suits by private parties against a state or its agencies in federal court. OCA further contends that neither of the two exceptions to Eleventh Amendment immunity — a state's unambiguous consent to a lawsuit and a valid and unambiguous abrogation of sovereign immunity by Congress — is present here. (See Dkt. No. 68 at 7.) Eleventh Amendment immunity, if applicable here, would preclude all of Quirk's claims regardless of whether the sought-after relief is monetary or injunctive. See Pennhurst State Sch. & Hosp. v. Halderman , 465 U.S. 89, 101–02, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) (citing Cory v. White , 457 U.S. 85, 91, 102 S.Ct. 2325, 72 L.Ed.2d 694 (1982) ).

The Court agrees with OCA that it does not have subject matter jurisdiction over Quirk's claims against OCA. "The Second Circuit has recognized the New York State Unified Court System, of which OCA is the administrative arm, as a state instrumentality protected by Eleventh Amendment sovereign immunity." Pietri v. N.Y.S. Off. of Ct. Admin. , 936 F. Supp. 2d 120, 127 (E.D.N.Y. 2013) (citing Gollomp v. Spitzer , 568 F.3d 355, 367–68 (2d Cir. 2009) ). Quirk does not contest that OCA is entitled to Eleventh Amendment sovereign immunity, nor does Quirk point to any abrogation of OCA's sovereign immunity by Congress. Quirk argues only that OCA has waived its sovereign immunity by actively participating in this litigation and not previously raising this Eleventh Amendment argument.

But the cases Quirk cites, Gunter v. Atlantic Coast Line Railroad Co. , 200 U.S. 273, 284, 26 S.Ct. 252, 50 L.Ed. 477 (1906), and Bergemann v. Rhode Island Department of Environmental Management , 665 F.3d 336 (1st Cir. 2011), are inapposite. Both of these cases stand for the proposition that a state waives its Eleventh Amendment sovereign immunity when it voluntarily becomes a party to a suit and submits its rights for judicial determination. See Gunter , 200 U.S. at 284, 26 S.Ct. 252 ; Bergemann , 665 F.3d at 340. In contrast, OCA has only defended itself against OCA's claims here. See NRA of Am. v. Cuomo , 525 F. Supp. 3d 382, 407 (N.D.N.Y. 2021) ("New York has not unequivocally expressed waiver of immunity, nor has it waived this immunity simply by defending the claims against it. To hold otherwise would mean a waiver of sovereign immunity occurs every time a State appears in federal court to defend itself in litigation. Such a result is not supported by either case law or logic.") Further, a federal court's subject matter jurisdiction may be raised by a party or by the court at any stage of the litigation. Arbaugh v. Y & H Corp. , 546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006). Because the Court lacks subject matter jurisdiction, it refrains from addressing the merits of Quirk's claims against the OCA.

The Court also refrains from addressing the merits of Quirk's claims against Chief Judge DiFiore in her official capacity. The Eleventh Amendment bars Quirk's claims seeking money...