Opinion
No. 01 Civ. 2320 (LTS)(GWG)
May 30, 2002
REPORT AND RECOMMENDATION
The pro se plaintiff in this matter, Posr A. Posr, has filed a "Complaint Affidavit" (hereinafter, "Complaint") naming a New York State Court Officer, Vincent Killackey, as defendant. The Complaint makes a number of claims for relief based on Posr's allegation that Killackey denied him access to a Family Court proceeding that Posr wished to film with a camera. Killackey now moves for a judgment dismissing in part Posr's Complaint pursuant to Fed.R.Civ.P. 12(c).
I. FACTUAL BACKGROUND
The following facts are alleged in Posr's Complaint and are assumed to be true for purposes of this motion.
In late January of an unnamed year (presumably 1998), Posr and Dyandria Murray "agreed to a contract that obligated Ms. Murray to financially compensate plaintiff for audio-visually recording all further verbal and non-verbal communications during the procedures in her family court case." Complaint at 2-3. In addition to fulfilling his part of the contract, Posr had "press purposes in making the video record." Id. at 3. In early April, Posr served "all parties" with an Order to Show Cause as to why he should not be allowed to film proceedings in Murray's case.Id. Posr does not indicate whether an order ever issued that either granted or denied permission to film.
On May 11, 1998, Posr attempted to enter the Family Court at 60 Centre Street but Court Officer Killackey blocked his entrance to the courtroom and said "it's illegal to film in court." Id. When Murray explained that Posr was with her to film the proceedings, Killackey said "it doesn't concern you." Id. Killackey and two other court officers, "physically seized [Posr] and forced [him], against [his] will, outside the courthouse." Id. at 4. When Posr then attempted to reenter the courthouse, Killackey blocked Posr' s entrance to the building, arrested him, seized his camera and charged him with two counts of Disorderly Conduct under Penal Law §§ 240.20(1) and 240.20(5). Id. In addition, he was also later charged with Harassment under Penal Law § 240.26(1). Id. On October 28, 1999, all of the charges against Posr were dropped on speedy trial grounds over Posr's objection. Id. at 5.
In the Complaint, Posr asserts 13 separately identified causes of action stemming from the May 11, 1998 incident, all alleging that Killackey violated various state and federal rights. These claims for relief are as follows:
1) Sherman Act, 15 U.S.C. § 1, 2 (which appears under the heading "First Amendment");
2) Article I, § 9, New York Constitution;
3) First Amendment, United States Constitution;
4) Article I, § 8, New York Constitution;
5) Fourth Amendment, United States Constitution (based on the seizure at the courthouse and Posr's expulsion);
6) Article I, § 6, New York Constitution (based on the seizure at the courthouse and Posr's expulsion);
7) New York Civil Rights Law, § 12;
8) Fourth Amendment, United States Constitution (based on the arrest for entering the courthouse with a camera);
9)Article I, § 6, New York Constitution (based on the arrest for entering the courthouse with a camera);
10) malicious prosecution "under the federal statutes";
11) malicious prosecution "under the statutes of the State of New York";
12) New York Civil Rights Law § 50; and
13) Donnelly Act, New York General Business Law § 340
Although he does not specifically so state, the Court construes Claims 1, 3, 5 and 8 — alleging the violation of federal rights — as arising under 42 U.S.C. § 1983.
On November 16, 2001, Killackey filed a notice of motion and memorandum of law in support of his motion for an order pursuant to Fed.R.Civ.P. 12(c) to "partially dismiss" Posr's claims. Killackey's moving papers are not precise in indicating which of Posr's 13 claims for relief are the subject of the motion to dismiss. In a footnote, Killackey asserts that he is not moving to dismiss Posr's "claims that he was denied his rights under the Fourth Amendment in that he was unlawfully seized and maliciously prosecuted." Memorandum of Law In Support of Defendant's Partial Motion to Dismiss ("Killackey Mem.") at 2 n. 1. Posr, however does not allege that his Fourth Amendment rights were denied "in that" he was maliciously prosecuted; rather, he asserts malicious prosecution claims on their own, including a claim specifically brought under State law. See Complaint at 5. Nonetheless, because the defendant's memorandum of law does not address either the fourth amendment claims (claims 5 and 8), the malicious prosecution claims (claims 10 and 11), or the state law claims based on an unlawful search and seizure (claims 6 and 9), the Court understands Killackey to be moving to dismiss only the remaining claims, consisting of claims 1, 2, 3, 4, 7, 12 and 13.
In addition, Killackey seeks to dismiss some claims on the ground that they are barred by the Eleventh Amendment and also asserts a qualified immunity defense. See Def. Mem. at 4-5, 15-16.
By letter dated December 17, 2001, Posr sought an extension of time until December 31,
2001, to respond to the defendant's motion. Although his request was granted by order dated
December 27, 2001, Posr never submitted any opposition.
II. DISCUSSION
A. The Rule 12(c) Standard
Killackey moves under Fed.R.Civ.P. 12(c), for judgment on the pleadings. A motion made under Rule 12(c) is analyzed under the same standard applicable to a motion to dismiss for failure to state a claim under Rule 12(b)(6). See Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir.), cert. denied, 513 U.S. 816 (1994). A court should dismiss a complaint pursuant to Rule 12(b)(6) if it appears beyond doubt that the plaintiff can prove no set of facts in support of his complaint that would entitle him to relief See, e.g., Strougo v. Bassini, 282 F.3d 162, 167 (2d Cir. 2002); King v. Simpson, 189 F.3d 284, 286-87 (2d Cir. 1999). The Court must accept all factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. See, e.g., Koppel v. 4987 Corp., 167 F.3d 125, 130 (2d Cir. 1999); Jaghory v. New York State Dep't of Educ., 131 F.3d 326, 329 (2d Cir. 1997). The issue is not whether a plaintiff will ultimately prevail but whether the plaintiff is entitled to offer evidence to support his or her claims. See, e.g., Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995), cert. denied, 519 U.S. 808 (1996). The Court must "confine its consideration 'to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken.'" Leonard F. v. Israel Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999) (quoting Allen v. WestPoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991)); Hayden v. County of Nassau, 180 F.3d 42, 54 (2d Cir. 1999).
Moreover, when considering motions to dismiss the claims of a plaintiff proceeding pro se, pleadings must be construed liberally. See, e.g., Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (a pro se complaint may not be dismissed under Rule 12(b)(6) unless "'it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief'") (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Lerman v. Board of Elections, 232 F.3d 135, 140 (2d Cir. 2000), cert denied, 533 U.S. 915 (2001); Flaherty v. Lang, 199 F.3d 607, 612 (2d Cir. 1999).
B. Section 1983 Claims
Posr raises several claims arising under federal law: specifically, claims 1, 3, 5, 8 and 10. As previously noted, Killackey is not moving to dismiss claims 5, 8 and 10. The remaining two claims arise under the Sherman Act (Claim 1) and the First Amendment (Claim 3). The Court construes these claims to be brought under 42 U.S.C. § 1983, which provides that
[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
To state a claim under 42 U.S.C. § 1983, a plaintiff "must allege (1) that the conduct complained of was committed by a person acting under color of state law, and (2) that such conduct deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States." Dwyer v. Regan, 777 F.2d 825, 828 (2d Cir. 1985),modified, 793 F.2d 457 (2d Cir. 1986); see Gomez v. Toledo, 446 U.S. 635, 640 (1980); Finley v. Giacobbe, 79 F.3d 1285, 1296 (2d Cir. 1996). Section 1983 does not in and of itself create any substantive rights; rather the plaintiff must demonstrate a violation of an independent federal constitutional or statutory right. See, e.g., Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617-18 (1979).
1. Sherman Act
Posr alleges that Killackey, "pursuant to 15 U.S.C. § 1 and/or § 2" (the "Sherman Act") prevented Posr "from competing in the marketplace of court telecasts." Complaint at 3. Private causes of action for violations of the Sherman Act are permitted under section 4 of the Clayton Act, 15 U.S.C. § 15.
15 U.S.C. § 1 provides in pertinent part:
Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is hereby declared to be illegal.
Under the terms of the Sherman Act, however, "a plaintiff claiming a § 1 violation must first establish a combination or some form of concerted action between at least two legally distinct economic entities. Unilateral conduct on the part of a single person or enterprise falls outside the purview of this provision in the antitrust law."Capital Imaging Assoc., P.C. v. Mohawk Valley Med. Assocs., 996 F.2d 537, 542 (2d Cir.) (citations omitted), cert denied, 510 U.S. 947 (1993). Because Posr fails to allege an agreement or some form of concerted action between Killackey and another person or entity that restrains trade in "the marketplace of telecasts," his claim under section 1 must be dismissed.
Similarly, Posr's claim under section 15 U.S.C. § 2 must be dismissed. This section provides:
Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not exceeding $10,000,000 if a corporation, or, if any other person, $350,000, or by imprisonment not exceeding three years, or by both said punishments, in the discretion of the court.
Posr has not alleged any facts suggesting that Killackey, who is alleged simply to be a New York
State Court Officer, has monopolized, attempted to monopolize or combined or conspired with another to monopolize any part of the trade in the "marketplace of court telecasts." Indeed, such an allegation would appear to be frivolous. Thus, Posr's claim under 15 U.S.C. § 2 must be dismissed as well.
Killackey construes the two Sherman Act claims as really being claims for tortious interference with contract under New York law. See Killackey Mem. at 13. To the extent that Posr is attempting to make such a claim, it must be dismissed. To successfully plead a tortious interference with contract claim, a plaintiff must allege "the existence of a valid contract, the tortfeasor's knowledge of the contract and intentional interference with it, the resulting breach and damages." Hoag v. Chancellor, Inc., 246 A.D.2d 224, 228 (1st Dep't 1998). Here, Posr has not alleged any facts indicating that Killackey knew of the existence of a valid contract or that he intentionally interfered with it. Moreover, the contract itself was not valid because Posr did not have the right to film the court proceeding in the absence of advance permission from the presiding judge. See sections I.B.2 and I.C.2 below.
2. First Amendment
In Claim 3, Posr alleges that his First Amendment rights were violated because Killackey prevented him from entering the courtroom to film the Family Court proceeding. The Complaint alleges that Posr attempted to enter the courtroom with a camera to film Murray's proceedings; that he was escorted out of the building by Killackey and two other unnamed officers; and that Killackey prevented him from reentering the courthouse.
There is no federal right, however, to film inside a courtroom. The Second Circuit has succinctly summarized the law in this area as follows: "it is well settled that insofar as courtroom proceedings are concerned, the right [to photograph court proceedings] is not guaranteed by the Constitution." United States v. Yonkers Bd. of Educ., 747 F.2d 111, 113 (2d Cir. 1984) (upholding local rule prohibiting the use of recording devices in the courtroom); accord Combined Communications Corp. v. Finesilver, 672 F.2d 818, 821 (10th Cir. 1982) ("[t]he First Amendment does not guarantee the media a constitutional right to televise inside a courthouse"). Other courts have uniformly reached the same conclusion.See, e.g., Conway v. United States, 852 F.2d 187, 188-89 (6th Cir.), cert denied, 488 U.S. 943 (1988); United States v. Edwards, 785 F.2d 1293, 1295 (5th Cir. 1986); United States v. Kerley, 753 F.2d 617, 620-22 (7th Cir. 1985); United States v. Hastings, 695 F.2d 1278, 1280 (11th Cir.),cert. denied, 461 U.S. 931 (1983). The rules applies even to trial proceedings of great public concern. See, e.g., Westmoreland v. Columbia Broad, Sys., Inc., 752 F.2d 16 (2d Cir. 1984), cert denied 472 U.S. 1017 (1985). Thus, Posr's claim under the First Amendment must be dismissed.
1. State Law Claims
Posr's section 1983 claims find a jurisdictional basis under 28 U.S.C. § 1331 and 1343. With respect to Posr's state law claims, a district court has "supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution." 28 U.S.C. § 1367(a). Accord Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 349 (1988) ("a federal court has jurisdiction over an entire action, including state-law claims, whenever the federal-law claims and state-law claims in the case 'derive from a common nucleus of operative fact' and are 'such that [a plaintiff] would ordinarily be expected to try them all in one judicial proceeding'") (quoting United Mine Workers of America v. Gibbs, 383 U.S. 715, 725 (1966)). Here, all of Posr's state law claims relate to the same incident as the federal claims. Thus, supplementary jurisdiction is available.
A district court may decline to exercise supplemental jurisdiction, however, if "(1) the claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction." 28 U.S.C. § 1367(c). Because none of these factors apply, the Court will maintain jurisdiction over plaintiff's State law claims, except those that are dismissed pursuant to the defendant's Rule 12(c) motion. Each claim subject to the motion is discussed in turn.
1. Claim 2: Article I. § 9, New York State Constitution
In this claim, Posr asserts that Killackey violated his "statutory rights to assemble and petition as a contracted person as protected in Article I § 9" of New York's Bill of Rights. Complaint at 3. Article I, § 9 of the New York State Constitution provides in relevant part that "No law' shall be passed abridging the rights of the people peaceably to assemble and to petition the government, or any department thereof." No allegations in the complaint, however, permit the inference that Posr attempted to do anything at or near the courthouse other than film Murray's proceeding. Thus, his ability to "petition the government" or "assemble" was not interfered with and this provision on its face is inapplicable to Posr's case. Thus, Claim 2 must be dismissed.
2. Claim 4: Article I, § 8. New York Constitution
Posr also claims Killackey violated his "statutory press right to assemble in and report from an unclosed courtroom." Complaint at 3-4. Article I, § 8 of the New York Constitution provides in relevant part that "[e]very citizen may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press." While there is no federal constitutional right to film a court proceeding, the law interpreting the New York Constitution provides greater protection for speech than does the First Amendment of the United States Constitution. See, e.g., Immuno AG. v. Moor-Jankowski, 77 N.Y.2d 235, 249 (1991).
Assuming without deciding that New York State would recognize a right to sue for damages under this provision, see generally Brown v. State of New York, 89 N.Y.2d 172, 186-88 (1996), Posr's claim under this provision must still be dismissed. New York case law uniformly holds either that there is no right under the state constitution to film court proceedings, see, e.g., Santiago v. Bristol, 273 A.D.2d 813, 814 (4th Dep't 2000) ("[i]ntervenors have no right under the U.S. Constitution to televise or otherwise broadcast petitioner's trial and there is no precedent in New York recognizing such a right") (citations omitted), or that whatever right does exist comes with significant restrictions. See, e.g., People v. Boss, 182 Misc.2d 700 (N.Y.Sup.Ct. 2000); People v. Santiago, 185 Misc.2d 138 (N.Y. Co. Ct. 2000).
To the extent there was no State constitutional right to film the Family Court proceedings, obviously Posr's claim must fail. To the extent such a right exists, however, case law consistently holds that the right is not "unfettered," People v. Boss, 182 Misc.2d at 705; People v. Santiago, 185 Misc.2d at 160, and comes with significant restrictions.See Boss 182 Misc.2d at 705 (holding that "standards and safeguards must be utilized for the audio-visual coverage"); Santiago, 185 Misc.2d at 160-61 (the court must institute standards and safeguards concerning the use of audio-visual coverage to protect the rights of the parties to a fair trial and "may impose reasonable guidelines for the media to follow"). Both Boss and Santiago specifically adopted detailed rules requiring that anyone wishing to film a court proceeding must obtain advance permission from the presiding judge. Boss, 182 Misc.2d at 705; Santiago, 185 Misc.2d at 161. In other words, no reading of the New York State Constitution would permit an individual to march up to a courthouse with a camera and demand, as Posr did, the right to film a proceeding in the absence of permission from the trial judge.
Posr's allegations with respect to his efforts to obtain permission to film the Court proceedings are extremely vague. He states only that "all parties" were served with an Order to Show Cause "as to why plaintiff should not be granted an Order permitting him to audio-visually record all further procedures" in the Family Court case. Complaint at 3. While an Order to Show Cause must be signed by a judge, he does not state which judge signed this Order or what were the contents of the Order. The complaint is thus unclear whether he in fact sought permission to film from the presiding judge in Murray's case. Posr also does not allege who the "parties" were who were served with this purported Order. Most significantly, he does not allege whether the request to film was ever denied or granted and, if so, what were the reasons given, if any, for the issuance of the grant or denial. Indeed, elsewhere in his Complaint, Posr as much as states that the presiding judge in Murray's case never denied his application to film. See Complaint at 4 (alleging that Killackey falsely stated in Posr' s criminal proceeding "that the presiding judge told plaintiff not to bring a camera into the courtroom") Thus, Posr's Complaint does not state a violation of the New York State Constitution because it contains no allegation that an application was made to the presiding judge and denied for reasons that would violate any State Constitutional right to film court proceedings.
Posr also did not follow rules that the State of New York enacted with respect to filming court proceedings. These rules were enacted at a time that New York's general prohibition on filming in court, Civil Rights Law § 52, was not in effect. See Boss, 182 Misc.2d at 702-03, 705. Section 52, however, took effect again in 1997, prior to Posr's attempt to film in this case. Id. at 702. Under the rules, filming of proceedings may be permitted by a presiding judge upon application by a "representative of the news media." 22 NYCRR § 131.3. The rules provide a number of factors that the judge should consider in entertaining an application to film proceedings. 22 NYCRR § 131.4(c). The rules also contemplate an application to the court for filming of proceedings by parties not for public dissemination. See 22 NYCRR § 29.1(b)(2).
The Attorney General of the State of New York, who represents Killackey in this matter, has asserted that these rules actually applied in Posr's case, despite the then-effectiveness of Civil Rights Law § 52. He does not explain why they apply but perhaps it is because Civil Rights Law § 52 governs only proceedings in which witnesses have been or may be subpoenaed to testify. Posr does not allege that witnesses were or might have been subpoenaed to testify in the particular Family Court proceeding he wished to film and he makes no challenge (or even reference) to Civil Rights Law § 52. In any case, as already noted, case law requires an application to the presiding judge prior to filming and Posr himself seems to have recognized that it was his obligation to make such an application since he implies — albeit vaguely — that a judge issued an "Order to Show Cause" on this topic.
Because Posr makes no allegation that he properly presented an application to film the proceedings or that the application was ever denied — let alone denied for a reason that would violate the New York State Constitution — claim 4 must be dismissed. Posr has leave to re-plead this claim to the extent he can make factual allegations that would show a violation of the State Constitution.
3. Claim 7: Civil Rights Law § 12
New York Civil Rights Law § 12 provides, in relevant part:
In all criminal prosecutions, the accused has a right to a speedy and public trial, by an impartial jury, and is entitled to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; and to have compulsory process for obtaining witnesses in his favor.
In his Claim 7, Posr asserts that Killackey violated this section, "by pretending, on the accusatory instrument, that the presiding judge told plaintiff not to bring a camera into the courtroom." Complaint at 4. Thus, Posr seems to be alleging that Killackey made a false statement in the accusatory instrument filed in Posr's criminal prosecution; specifically, that the presiding judge in the Family Court case had told Posr not to bring the camera into the courtroom.
Nothing in the text of New York Civil Rights Law § 12, however, bears any relevance to Posr's allegation. While the statute refers to the right to a "speedy . . . trial," the alleged false statement is not claimed to have resulted in a delay in his criminal prosecution. In fact, the Complaint shows that Posr's speedy trial rights were vindicated because it alleges that the charges against him were dismissed "on speedy trial grounds." Complaint at 5.
In addition, the accusatory instrument in the criminal proceeding against Posr is not alleged to have failed to have informed Posr of the "nature and cause" of the criminal charge. Instead, Posr is alleging only that the charge itself was baseless. The allegation of the alleged falseness of the accusatory instrument may be relevant to Posr's claims for malicious prosecution but has no bearing on an action under Civil Rights Law § 12. While the Court is unaware of any precedent permitting an action for damages under this provision, Posr's claim must be dismissed in any event because the statute was not violated.
4. Claim 12: New York Civil Rights Law § 50
Section 50 of the New York Civil Rights Law states
A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor.
Although Posr does not cite it, section 51 of the Civil Rights Law provides a civil cause of action to enforce this prohibition by permitting suit against anyone who for advertising or trade purposes uses a name, portrait, picture or voice without that person's written permission. Section 51 also allows for "exemplary damages" if the defendant knowingly used a person's name, portrait, picture or voice "in such manner as is forbidden or declared to be unlawful by section fifty."
Posr's invocation of Section 50 is a mystery as he alleges no facts that implicate either section 50 or 51. Specifically, Posr does not allege that Killackey used Posr's name, portrait, picture or voice, for the purposes of advertising or trade, without having obtained Posr's written consent. Therefore, this claim must be dismissed.
5. Claim 13: New York General Business Law § 340
Posr also asserts a claim under the Donnelly Act, New York General Business Law § 340, alleging that Killackey denied Posr "his right to compete in the marketplace of transcription." See Complaint, ¶ 17. Like his Sherman Act claims, this claim too is meritless. Section 340(1) states
Every contract, agreement, arrangement or combination whereby [a] monopoly in the conduct of any business, trade or commerce or in the furnishing of any service in this state, is or may be established or maintained, or whereby [c]ompetition or the free exercise of any activity in the conduct of any business, trade or commerce or in the furnishing of any service in this state is or may be restrained or whereby [f]or the purpose of establishing or maintaining any such monopoly or unlawfully interfering with the free exercise of any activity in the conduct of any business, trade or commerce or in the furnishing of any service in this state any business, trade or commerce or the furnishing of any service is or may be restrained, is hereby declared to be against public policy, illegal and void.
As with claims brought under the Sherman Act, plaintiffs alleging violations of the Donnelly Act must allege some concerted action between two or more economic entities to make out a viable claim (at least where the defendant is not a public utility). See Saxe, Bacon Bolan. P.C. v. Martindale-Hubbell, Inc., 710 F.2d 87, 90 (2d Cir. 1983). In addition, "[t]o survive a motion to dismiss, a Donnelly Act claim must allege an anti-competitive effect in the market in which the plaintiff competes."U.S. Info. Sys., Inc. v. Int'l Bhd. of Elec. Workers Local Union Number 3. AFL-CIO, 2002 WL 91625, at * 11 (S.D.N.Y. Jan. 23, 2002) (citingSaxe, Bacon Bolan, 710 F.2d at 90). As previously noted, Posr's complaint makes no allegations that Killackey conspired with or engaged in actions with another entity, nor does it allege that Killackey's actions caused an anti-competitive effect on the market for court telecasts. Consequently, Posr's Donnelly Act claim must be dismissed.
D. Eleventh Amendment
Killackey argues that the "[s]ection 1983 claims" should be dismissed because New York State is "the real party in interest" in this matter and the Eleventh Amendment to the United States Constitution bars suits against the States. See Killackey Mem. at 4-5. The Complaint asserts that Killackey is sued in both his "official" and "individual" capacities with respect to each of the federal claims. See Complaint at 3-5.
It is clear that "[t]o the extent that a state official is sued for damages in his official capacity, such a suit is deemed to be a suit against the state, and the official is entitled to invoke the Eleventh Amendment immunity belonging to the state." Ying Jing Gan v. City of New York, 996 F.2d 522, 529 (2d Cir. 1993) (citing Kentucky v. Graham, 473 U.S. 159, 166-67 (1985); Hafer v. Melo, 502 U.S. 21 (1991)). Thus, the claims construed to arise under 42 U.S.C. § 1983 that have not already been dismissed — consisting of claims 5, 8 and 10 — must be dismissed against Killackey in his official capacity.
It is unclear if Killackey is seeking to have these or any other claims dismissed against him in his individual capacity as well. To the extent he is seeking such relief, it is denied because "a state official has no Eleventh Amendment immunity" with respect to "a claim brought against [the official] in his individual capacity." Ying Jing Gan, 996 F.2d at 529. The fact that the State may choose to indemnify an official sued in his individual capacity does not make the suit one against the State.See, e.g., Farid v. Smith, 850 F.2d 917, 923 (2d Cir. 1988); Luder v. Endicott, 253 F.3d 1020, 1023 (7th Cir. 2001) (citing cases). Where a plaintiff seeks relief through an award of damages for a past constitutional deprivation not from the state treasury, but from the official's personal funds, the Eleventh Amendment is no bar. Dwyer, 777 F.2d at 836.
In addition, the mere fact that Killackey was "performing his official duties," Killackey Mem. at 5, does not mean that the suit may only be brought against him in his official capacity. The Second Circuit "has consistently held that the eleventh amendment does not protect state officials from personal liability when their actions violate federal law, even though state law purports to require such actions." Farid, 850 F.2d at 921. Accordingly, while Claims 5, 8 and 10 are dismissed against Killackey in his official capacity, they must remain in the case against him in his individual capacity.
E. Qualified Immunity
Killackey argues that he is entitled to qualified immunity with respect to some portion of the complaint — though he never identifies with any specificity the claims he is addressing. See Killackey Mem. at 15-16. At one point he refers to Posr's "constitutional claims" and at another to the allegations that he violated "various State laws." Id. at 16. Killackey cites no case for the proposition that "qualified immunity" represents a defense to any of the claims arising under New York State law and this Court is aware of none. See generally Gail Donoghue Jonathan I. Edelstein, "Life After Brown: The Future of State Constitutional Tort Actions in New York," 42 N.Y.L. Sch. L. Rev. 447, 525-27 (1998). The defense of "qualified immunity" is thus one that is applicable only to the claims arising under federal law.
of the federal claims, only two remain in this action: Claims 5 and 8, both of which allege violations of the Fourth Amendment. Killackey provides no allegations, argument or explanation as to why he is entitled to qualified immunity for these two claims. Accordingly, to the extent he is seeking to assert a qualified immunity defense with respect to these claims, the motion is denied.
III. CONCLUSION
Killackey's motion to dismiss should be granted as to claims 1, 2, 3, 4, 7, 12, and 13. In addition, claims 5, 8 and 10 should be dismissed against Killackey in his official capacity only.
Notice of Procedure for Filing of Objections to this Report and Recommendation
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of this Report to file any written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Laura Taylor Swain, 40 Centre Street, New York, New York 10007, and to the chambers of the undersigned at the same address. Any requests for an extension of time to file objections must be directed to Judge Swain. The failure to file timely objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140, 155 (1985).