Hubert v. Department of Corrections

          RULING AND ORDER ON MOTION TO CONSOLIDATE AND MOTION TO DISMISS

          VICTOR A. BOLDEN UNITED STATES DISTRICT JUDGE

         This 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”).

         The 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.

         The 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.

         This 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.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Plaintiffs 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.

         A. Factual Allegations

         Sharone 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.

         Ms. Hubert alleges a number of incidents of sexual harassment including:

• 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. ¶ 35.

• 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. ¶ 122.

• 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.

         The 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.

         The 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.

         Ms. 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.

         B. Procedural History

         Before 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.

         The 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).

         Plaintiffs 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.

         Plaintiffs 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. ¶¶ 264-342.

         Defendants 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.

         Plaintiffs oppose Defendants' motion to dismiss, ECF No. 23, and also move to consolidate Hubert II with Hubert I, ECF No. 28.

         II. STANDARD OF REVIEW

         Under 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)).

         A 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))).

         Dismissal 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).

         The 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).

         III. DISCUSSION

         A. Motion ...