United States District Court, D. Connecticut
RULING ON MOTION TO DISMISS
VICTOR A. BOLDEN UNITED STATES DISTRICT JUDGE
On April 4, 2014, Plaintiffs, Sharone Hubert and Etienne Hubert, commenced this action against Defendants, Captain Kyle Godding (“Godding”), Deputy Warden Michael Davis (“Davis”), Correction Officer Kevin Curry (“Curry”), Lieutenant Derrick Austin (“Austin”), and Lieutenant Cicero Collender (“Collender”) (collectively, the “Individual Defendants”), each in his personal and official capacities, and the State of Connecticut Department of Correction (or “DOC”).
Defendants have moved to dismiss Plaintiffs’ First Amended Complaint (the “First Amended Complaint”) [Doc. No. 10] under Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction, 12(b)(2) for lack of personal jurisdiction, and 12(b)(5) for insufficient service of process. In addition, many of their arguments for dismissal are predicated on an alleged failure to state a claim upon which relief can be granted, and thus the Court will address these claims under Federal Rule of Civil Procedure 12(b)(6), as well. See Target Training Int’l, Ltd. v. Lee, 1 F.Supp.3d 927, 935-36 (N.D. Iowa 2014) (considering motion to dismiss made pursuant to Rule 12(b)(1) instead “under appropriate Rule 12(b)(6) standards” where movant’s argument turned on whether complaint stated a claim upon which relief can be granted rather than whether there was subject matter jurisdiction). For the reasons that follow, Defendants’ motion to dismiss [Doc. No. 40] is GRANTED IN PART and DENIED IN PART.
Following this Ruling, five counts of the First Amended Complaint will remain: Count One as to the DOC and Defendants Davis, Godding, Curry, Austin, and Collender in their official capacities; Count Five as to the DOC and Defendants Davis, Godding, Curry, Austin, and Collender in their official capacities; Count Nine, to the extent it asserts claims under Title VII, as to Defendant Davis in his official capacity; Count Ten, to the extent it asserts claims under Title VII, as to Defendant Collender in his official capacity; and Count Thirteen, to the extent it asserts claims under sections 1985, 1986, and 1988 as to the DOC and Defendants Davis, Godding, Austin, and Collender in their official capacities.
Sharone Hubert, an African American woman, has been employed by the State of Connecticut Department of Correction since February 13, 1998. Currently a correction officer, she is married to Etienne Hubert, who is also a correction officer for the DOC. The DOC promoted Ms. Hubert to lieutenant on September 11, 2009. See Doc. No. 23, at 5; Doc. No. 43-1, at 9. The DOC returned her back to the position of correction officer on January 27, 2010, and she has not received any subsequent promotions. See Doc. No. 23, at 5; Doc. No. 43-1, at 10.
Ms. Hubert allegedly has experienced a great deal of sexual harassment during her employment at the DOC. An unidentified individual allegedly told Ms. Hubert that “she must lose her ‘trash’ in order to be promoted.” Compl. ¶ 46. Ms. Hubert believes that the term “trash” was a reference to her husband, who worked at the same facility. See Id. An unidentified supervisor allegedly told Ms. Hubert that “she should just ‘give in’ to her supervisors’ unwelcomed sexual advances, so she could be promoted.” Compl. ¶ 47. A co-worker allegedly told Ms. Hubert that “she should be careful because if she was in a private setting at one of the DOC facilities, one of her supervisors “will take it.” Compl. ¶ 53. There allegedly was a “running bet” at DOC as to “which supervisor would first sleep with the Plaintiff, Sharone Hubert.” Compl. ¶ 72.
The Individual Defendants allegedly engaged in a series of sexually-inappropriate behaviors towards Ms. Hubert.
• In or around July 2012, Deputy Warden Michael Davis, who was one of the Huberts’ supervisors, allegedly sent Ms. Hubert pictures of his erect penis. See Compl. ¶¶ 20-22; Doc. No. 23, at 4. After sending her these photographs, Davis allegedly gave Ms. Hubert an assignment alone in a room, to which he followed her, turned off the lights, grabbed her from behind, and demanded that she engage in sexual intercourse with him. See Compl. ¶¶ 23, 111, 120-22, 140-41.
• Captain Kyle Godding, who was also a supervisor of the Huberts, allegedly sent Ms. Hubert pictures of his erect penis in or around August 2013. See Compl. ¶ 28; Doc. No. 23, at 4.
• Correction Officer Kevin Curry allegedly sent Ms. Hubert pictures of his erect penis in or around December 2013, and to other female employees in February 2014. See Compl. ¶ 29; Doc. No. 23, at 4.
• Ms. Hubert once requested a day off from Lieutenant Derrick Austin, one of her supervisors, who allegedly responded that “he would only grant her request if she gave him some pussy.” Compl. ¶ 64. Austin allegedly routinely assigned Ms. Hubert to isolated posts, and, on one occasion, walked up to Ms. Hubert from behind, pulled out his erect penis and placed it on her shoulder, and asked her “if she saw what a real man looked like.” Compl. ¶¶ 32-33; see also Compl. ¶¶ 65-66, 127-28. On another occasion, Austin asked her, while she was working with him and another DOC lieutenant, to sit on his lap so he could look at her pretty white teeth. Compl. ¶¶ 34, 68. DOC investigated Austin after Ms. Hubert filed an incident report, as a result of which it issued a “no contact order” against Austin and eventually allowed him to transfer to another facility while maintaining his rank, pay, and benefits. Compl. ¶¶ 36, 69-70.
• Lieutenant Cicero Collender, another one of Ms. Hubert’s supervisors, allegedly continually requested that Ms. Hubert give him hugs, despite her informing him that his conduct was inappropriate. Thereafter, Ms. Hubert was two minutes late for roll call due to a documented medical condition that Collender knew about. Due to the medical condition, Ms. Hubert was in the bathroom at the time roll call began, and Collender ordered others to summon her from the bathroom, and then he disciplined her. Collender’s disciplinary conduct allegedly violated “an existing court decree against Defendant DOC, ” and forced Ms. Hubert to take medical leave on days that she was suffering from her medical condition. Compl. ¶¶ 41-42, 82-88, 151.
In addition, DOC allegedly passed over Ms. Hubert for promotion because of her filing of grievances and Connecticut Commission on Human Rights and Opportunities (CHRO) complaints concerning alleged unlawful discrimination. See Compl. ¶ 79. She allegedly suffered further forms of mistreatment both in retaliation for her opposing unlawful discrimination and “in an attempt to have her surrender to [her supervisors’] illegal sexual advances.” Compl. ¶ 61. For example, she alleges that she was “discriminatorily punished” by supervisors “who had her stay at work in ‘bloody pants’ to write an unwarranted and unnecessary incident report . . . while her coworkers looked on at her soiled pants.” Compl. ¶ 62
Finally, as a result of Defendants’ alleged conduct, Ms. Hubert allegedly has suffered emotional injuries requiring treatment, and Mr. and Ms. Hubert allegedly have been “unable to fulfill their marital duties to each other.” Compl. ¶¶ 71, 93, 94.
Ms. Hubert filed complaints with the United States Equal Employment Opportunity Commission (EEOC) and the CHRO, and received right to sue letters from the EEOC on January 10, 2014, and July 7, 2014, and from the CHRO on February 21, 2014. See Doc. No. 23-1.
On April 4, 2014, Plaintiffs initiated the present lawsuit by filing a complaint with this Court, naming as defendants the DOC, Davis, Godding, and Curry. [Doc. No. 1]. The Clerk of the Court issued electronic summonses for these defendants to Plaintiffs in accordance with Federal Rule of Civil Procedure 4 and Local Civil Rule 4. [Doc. Nos. 6-9]. The original defendants were served on October 2, 2014. See Doc. No. 27, at 2-8. Next, Plaintiffs filed their First Amended Complaint on October 10, 2014, adding Austin and Collender as defendants. [Doc. No. 10]. Defendants Austin and Collender were served on March 4, 2015. See Doc. Nos. 35-36. Plaintiffs made service on each of the Individual Defendants by leaving a copy of the summons and complaint with the Hartford office of Attorney General of the State of Connecticut. See Doc. Nos. 6-9, 27, 35-36.
The First Amended Complaint contains thirteen counts. In her opposition to Defendants’ motion to dismiss, Plaintiff voluntarily withdraws Count Twelve, which alleged a breach of the implied covenant of good faith and fair dealing against the Individual Defendants. The remaining twelve counts each assert claims against various Defendants for violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), the Connecticut Fair Employment Practices Act, Conn. Gen. Stat. § 46a-60(a) (“CFEPA”), 42 U.S.C. §§ 1981, 1983, 1985, 1986, and 1988, or state common law.
Specifically, Counts One and Five assert violations of Title VII against all Defendants, Counts Three and Four assert violations of CFEPA against all Defendants, Counts Nine and Ten allege sexual harassment against Defendants Davis and Collender, respectively, Counts Six and Eight allege battery against Defendants Davis and Austin, respectively, Count Seven alleges false imprisonment against Defendant Davis, Count Two alleges loss of consortium against all Defendants, Count Eleven alleges both negligent and intentional infliction of emotional distress against all Defendants, and Count Thirteen alleges violations of rights under 42 U.S.C. §§ 1981, 1983, 1985, 1986, and 1988 against Defendants DOC, Davis, Godding, Austin, and Collender.
A. Insufficient Service of Process and Lack of Personal Jurisdiction
1. Standard of Review
Under Federal Rule of Civil Procedure 12(b)(5), a party may file a motion to dismiss due to “insufficient service of process.” Fed.R.Civ.P. 12(b)(5). A motion to dismiss under Rule 12(b)(5) may be granted “if the plaintiff fails to serve a copy of the summons and complaint on the defendants pursuant to Rule 4 of the Federal Rules, which sets forth the federal requirements for service.” Rzayeva v. United States, 492 F.Supp.2d 60, 74 (D. Conn. 2007). “Once validity of service has been challenged, it becomes the plaintiff’s burden to prove that service of process was adequate.” Cole v. Aetna Life & Cas., 70 F.Supp.2d 106, 110 (D. Conn. 1999).
“On a Fed.R.Civ.P. 12(b)(2) motion to dismiss for lack of personal jurisdiction, plaintiff bears the burden of showing that the court has jurisdiction over the defendant.” In re Magnetic Audiotape Antitrust Litig., 334 F.3d 204, 206 (2d Cir. 2003). “Prior to discovery, a plaintiff challenged by a jurisdiction testing motion may defeat the motion by pleading in good faith legally sufficient allegations of jurisdiction. At that preliminary stage, the plaintiff’s prima facie showing may be established solely by allegations.” Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir. 1990). Such allegations must be made through the plaintiff’s “own affidavits and supporting materials.” Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir. 1981). In deciding a 12(b)(2) motion to dismiss, a court must construe the pleadings and affidavits in the light most favorable to the plaintiff, resolving all doubts in her favor. See A.I. Trade Finance, Inc. v. Petra Bank, 989 F.2d 76, 79-80 (2d Cir. 1993).
2. Service of Process as to the State of Connecticut
Defendants argue that the complaint should be dismissed as to the DOC and the Individual Defendants in their official capacities for insufficient service of process. Rule 4(m), Fed. R. Civ. P., states in relevant part:
If a defendant is not served within 90 days after the complaint is filed, the court --on motion or on its own after notice to the plaintiff -- must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.
Thus, a district court must extend the time for service upon a showing of good cause and may grant an extension in the absence of good cause. See Zapata v. City of New York, 502 F.3d 192, 197 (2d Cir. 2007).
Here, Plaintiffs have not shown good cause for failing to serve process within the prescribed time. Plaintiffs assert that they gave the original complaint to a state marshal for service on or around July 25, 2014. Doc. No. 55-1, at 17. However, as noted supra, it is Plaintiffs’ burden to prove that service of process was adequate, and they have provided no affidavit, from counsel or from the state marshal, attesting that the marshal ...