United States District Court, D. Connecticut
RULING AND ORDER ON MOTION TO CONSOLIDATE AND MOTION
A. BOLDEN UNITED STATES DISTRICT JUDGE
case is the second in a pair of related cases brought by
Sharone and Etienne Hubert (“Plaintiffs”) against
the Department of Corrections, Kyle Godding, Michael Davis,
Kevin Curry, and Cicero Callender (“Defendants”).
first, Hubert v. Correction et al.
(“Hubert I”), No. 14-cv-476 (VAB), has
proceeded to the summary judgment stage. The Court issued an
Order in that case granting in part and denying in part
Defendants' motion to dismiss, and at this point, only
those claims against the Department of Corrections and
Defendants in their official capacities survive. 2017 WL
706166, at *12 (D. Conn. Feb. 22, 2016). All claims against
Defendants Davis, Godding, Curry, Callender, and Austin in
their individual capacities were dismissed for lack of
personal jurisdiction. Id. at *11.
Huberts filed this second lawsuit on February 16, 2017,
re-asserting claims against the Department of Corrections,
Kyle Godding, Michael Davis, Kevin Curry, and Cicero
Callender in their individual capacities. Hubert v.
Corrections, et al., No. 3:17-cv-248
(“Hubert II”), Compl., ECF No.
1. The Huberts argue that this Court has federal question
jurisdiction over the case because they have brought claims
under 42 U.S.C. §§ 1981, 1983, and 1988, and claims
that the Court has jurisdiction over the claims under
Connecticut General Statute § 52-592, a savings
provision for accidental failure of suit. Am. Compl. ¶
2, ECF No. 15.
ruling addresses two pending motions: Plaintiffs' motion
to consolidate Hubert II with Hubert I, ECF
No. 28, and Defendants' motion to dismiss, ECF No. 20.
For the reasons discussed below, Plaintiffs' motion to
consolidate is DENIED, and Defendants'
motion to dismiss is GRANTED IN PART AND DENIED IN
PART. Defendants' motion to dismiss is granted
as to all counts against all Defendants, except for Count
Three against Lieutenant Callender, and Mr. Hubert is
dismissed from the case.
FACTUAL AND PROCEDURAL BACKGROUND
acknowledge that there are no material factual differences
between Hubert I and Hubert II. Memo. in
Support of Mot. Consolidate at 3, ECF No. 28-1 (“To be
sure, the facts are identical; the Plaintiff's legal
theories are identical, the parties are the same, absent
Defendant Austin from Hubert II; although discovery
is complete in Hubert I, Hubert II requires
minimal discovery[.]”). The facts here therefore are
very similar to or the same as those stated in the
Court's Order granting in part and denying in part
Defendants' motion to dismiss in Hubert I.
See Order, 2016 WL 706166 (D. Conn. Feb. 22, 2016).
The facts and procedural history of the cases are reiterated
here only to the extent necessary to decide the pending
motions to consolidate and to dismiss.
Hubert and Etienne Hubert, a married couple, both work for
the Connecticut Department of Corrections (DOC). Compl.
¶¶ 17-19. Ms. Hubert is an African-American woman,
and she alleges that she endured sexual harassment, sexual
assault, and race- and gender-based discrimination while she
worked at DOC. Compl. ¶ 34. For some time, Mr. Hubert
worked at the same facility as Ms. Hubert, in Cheshire, and
he brings a loss of consortium claim related to her alleged
mistreatment. Am. Compl. ¶ 20-21.
Hubert alleges a number of incidents of sexual harassment
• Defendants allegedly regularly called Ms. Hubert
“dark and sexy.” Am. Compl. ¶ 194.
• Ms. Hubert was allegedly told that she “must
lose her ‘trash' in order to be promoted, ”
which she understood to mean that she would need to leave her
husband. Id. ¶ 195-96.
• Defendants allegedly placed bets on “which
supervisor would first sleep with” Ms. Hubert.
Id. ¶ 224.
• Deputy Warden Davis, a supervisor of Ms. Hubert,
allegedly sent her photographs of his penis. Id.
• Deputy Warden Davis allegedly directed Ms. Hubert to
“inventory gym equipment, walked into the room and
turned off the lights in the room, took out his erect penis,
grabbed her from behind, inserted his hand down the front of
her pants, stuck his tongue into her mouth, and insisted that
she allow him to place his erect penis at the tip of her
vagina.” Id. ¶ 26.
• Captain Kyle Godding, another supervisor of Ms.
Hubert, also allegedly sent Ms. Hubert photographs of his
penis. Id. ¶ 106.
• Correction Officer Curry also allegedly sent Ms.
Hubert three photographs of his penis. Id. ¶
• Lieutenant Callender, another supervisor of Ms.
Hubert, allegedly repeatedly asked her to have sexual
intercourse with him. Id. ¶¶ 169-70. Ms.
Hubert alleges that after she rebuffed his advances, Mr.
Callender disproportionately disciplined her when she arrived
late to roll call by two minutes by sending her colleagues to
the bathroom to retrieve her. Id. ¶ 174.
Huberts allege that they both feared retaliation from their
supervisors “who were responsible for making the
Plaintiffs' work schedules, complet[ing] their work
evaluations, their promotions, demotions, their assignments
to their respective posts” and other job decisions.
Id. ¶ 27. Plaintiffs claim that the
“abusive and unlawful conduct . . . has had a
detrimental impact on their marital relations, including the
loss of consortium, society, and affection.”
Id. ¶ 28.
Complaint alleges that Mr. Hubert was transferred from
Cheshire Correctional Institute “to better facilitate
[Defendants'] individual and collective physical and
mental assaults upon his wife directly, and upon him
indirectly.” Id. ¶ 38.
Hubert alleges that she was promoted to the rank of
Lieutenant on September 11, 2009, and then demoted to
correction officer on January 27, 2010 “based on the
fact she had been sexually assaulted, sexually harassed, and
subjected to retaliation by the Defendants.”
Id. ¶ 48. The Huberts allege that the
Department of Corrections has “knowingly maintained an
extreme, ongoing and continuously discriminatory, and ongoing
and continuously hostile work environment against the
Plaintiffs on the basis of racial discrimination, harassment,
sexual harassment, retaliation, and hostile work
environment.” Id. ¶ 54.
filing either lawsuit, the Huberts filed charges against the
Department of Corrections and its agents with the Connecticut
Commission on Human Rights and Opportunities
(“CHRO”) and the United States Equal Employment
Opportunity Commission (“EEOC”). Am. Compl.
¶ 4. She received right to sue letters from the CHRO on
February 21, 2014, and from the EEOC on January 10, 2014, and
July 7, 2014. Id.
Huberts filed the original Complaint in Hubert I in
April 2014. Defendants moved to dismiss the Complaint, and
the Court found that the individual defendants, Godding,
Davis, Austin, Curry, and Callender, had not been served
properly and dismissed the claims against them in their
individual capacities. 2016 WL 706166, *12 (D. Conn. Feb. 22,
2016). The claims against Defendants in their official
capacities under Title VII, 42 U.S.C. §§ 1985,
1986, and 1988 went forward. Id. The parties then
conducted discovery, which was completed in January 2017.
Hubert II Mot. Consolidate at 3. During the
discovery process, the Court issued an order precluding
Plaintiffs from relying on any documents they failed to
produce in response to Defendants' discovery requests,
including “(a) authenticating data such as metadata or
telephone numbers for text message exhibits previously
produced by Plaintiff, (b) certain text messages that
Plaintiff did not include with her previous production, (c)
copies of Plaintiff's tax returns, and (d) information
from Plaintiff's medical providers for whom Plaintiff has
not provided completed medical authorizations to
Defendants.” Hubert I, 14-cv-476, Dkt. No. 99
(Sept. 19, 2016).
re-filed their Complaint in this lawsuit, Hubert II,
reasserting their claims against the Connecticut Department
of Correction and against the individual defendants who were
dismissed in Hubert I, except for Defendant Austin.
Compl. Plaintiffs filed an Amended Complaint on March 22,
2017, which alleges violations of 42 U.S.C. §§
1981, 1983, 1988, and Connecticut common law. Am. Compl. The
Complaint in Hubert II relies on exhibits and
depositions produced in Hubert I.
argue that this Court has jurisdiction over Defendants in
their individual capacities under Connecticut General Statute
§ 52-592, which provides a savings clause for cases that
were dismissed on certain procedural grounds, and not on the
merits. The Huberts bring claims based on: the equal
protection and due process clauses under 42 U.S.C.
§§ 1981, 1983, and 1988 (Count One); intentional
infliction of emotional distress (Count Two); the equal
protection and due process clauses under 42 U.S.C. §
1983 (Count Three); loss of consortium (Count Four); and
invasion of privacy (Count Five). Am. Compl. ¶¶
move to dismiss, arguing that most of Plaintiffs' claims
are barred by a three-year statute of limitations, and that
the alleged incidents that occurred after February 2014 fail
to state a claim upon which relief can be granted; that
Section 52-592 does not confer jurisdiction over this matter;
and that Hubert II is “merely an attempt to
circumvent the discovery preclusion orders issued by this
Court in Hubert I.” Mot. Dismiss at 1.
Defendants also assert that Counts One and Three are barred
by qualified immunity, and Counts Two and Four are barred by
statutory immunity. Id. at 1-2.
oppose Defendants' motion to dismiss, ECF No. 23, and
also move to consolidate Hubert II with Hubert
I, ECF No. 28.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 42(a), the trial court is
empowered to join or consolidate cases “involving
‘a common question of law or fact.'”
Deutsche Bank Nat. Trust Co. v. WMC Mortg., LLC, No.
3:12-cv-933 (CSH), 2014 WL 3824333, at *1 (Aug. 4, 2014).
“To succeed on a motion for consolidation, the moving
party must demonstrate that the actions sought to be
consolidated are before the same court and contain common
questions of law or fact.” Molinari v.
Bloomberg, No. CV-08-4539 (CPS) (JO), 2009 WL 87576, at
*4 (E.D.N.Y. Jan. 13, 2009). “Even upon the requisite
showing, a court has broad discretion in determining whether
consolidation is appropriate by balancing the economy gained
and prejudice to parties. Id. (citing Haas v.
Brookhaven Memorial Hosp., 2008 WL 822121, at *2
(E.D.N.Y. Mar. 26, 2008) (denying motion to consolidate after
finding that consolidation would confuse the issues involved
in each case)).
complaint must contain a “short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a). At this stage, the court
views the facts alleged in the complaint in the light most
favorable to the plaintiff, and draws all reasonable
inferences in the plaintiff's favor. Natural Res.
Def. Council v. Johnson, 461 F.3d 164, 171 (2d Cir.
2006); see also Bell Atl. v. Twombly, 550 U.S. 544,
555 (2007) (“Federal Rule of Civil Procedure 8(a)(2)
requires only ‘a short and plain statement of the claim
showing that the pleader is entitled to relief, ' in
order to ‘give the defendant fair notice of what the .
. . claim is and the grounds upon which it rests'.”
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957))).
under Rule 12(b)(1) is appropriate when the court lacks the
statutory or constitutional power to adjudicate the claim.
Fed.R.Civ.P. 12(b)(1); Makarova v. United States,
201 F.3d 110, 113 (2d Cir. 2000). The party asserting the
claim bears the burden of establishing that the court has
subject-matter jurisdiction over it. P. v. Greenwich Bd.
of Educ., 929 F.Supp.2d 40, 45-46 (D. Conn. 2013)
(citing Makarova, 201 F.3d at 113). In evaluating
whether the plaintiff has established that the court has
subject matter jurisdiction, “the court may resolve the
disputed jurisdictional fact issues by referring to evidence
outside of the pleadings, such as afidavits, and if
necessary, hold an evidentiary hearing.” Karlen ex
rel. J.K. v. Westport Bd. of Educ., 638 F.Supp.2d 293,
298 (D. Conn. 2009).
Court will grant a motion to dismiss for failure to state a
claim under Rule 12(b)(6) only if “it is clear that no
relief could be granted under any set of facts that could be
proved consistent with the allegations.” Hishon v.
King & Spalding, 467 U.S. 69, 73 (1984); see
also Phillips v. Girdich, 408 F.3d 124, 128 (2d Cir.
2005) (“All complaints must be read liberally;
dismissal on the pleadings never is warranted unless
the plaintiff's allegations are doomed to fail under any
available legal theory.”). The plaintiff's
allegations need not be detailed, but “[t]hreadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see
also Twombly, 550 U.S. at 555. The court will view the
facts in the light most favorable to the plaintiff, and will
take “all of the factual allegations in the complaint
as true, ” but will not accept legal conclusions
pleaded as factual allegations. Iqbal, 556 U.S. at
678; Cohen v. S.A.C. Trading Corp., 711 F.3d 353,
359 (2d Cir. 2013).