Opinion
No. 00 CIV. 4708 (DLC).
May 10, 2001
Derek Sloane, Pro Se P-38424 Westchester County Jail.
Eliot Spitzer, Melinda Chester-Spitzer State of New York Attorney General's Office.
OPINION AND ORDER
Plaintiff pro se Derek Sloane ("Sloane"), filed this action on June 26, 2000; he filed an amended complaint on September 6, 2000. Plaintiff brings this action pursuant to 42 U.S.C. § 1981, 1983, and 1985, alleging numerous violations of his civil rights. Defendant parole officers Jeff Getz ("Getz"), Trudi Burns ("Burns"), Gene Washington ("Washington"), and parole revocation specialist Steve Rosenblum ("Rosenblum") (together "defendants"), move to dismiss certain of the claims against them pursuant to Rule 12(b)(6), Fed.R.Civ.P. For the reasons stated below, their motion is granted in part.
BACKGROUND
The facts as alleged by Sloane are as follows. On March 29, 2000, Sloane reported to his parole officer, Burns, at the Mount Vernon Parole Office. Burns asked plaintiff to accompany her to a back office. When Sloane entered the office and placed his legal documents on a desk, the "defendants" attacked Sloane from behind, grabbing him by his neck and throwing him down onto the floor. "[M]ore defendants" came running in, pulled Sloane up from the floor, and threw him down onto the floor again. In his memorandum in opposition to defendants' motion to dismiss, plaintiff asserts that he was hit from behind "by, I believe Gene Washington an[d] . . . Jeff Getz." As a result of the attack, Sloan suffered injuries to his neck, lower back, and right knee. With respect to Burns, the complaint alleges that she stood by during the attack and did nothing to prevent it.
Plaintiff also alleges that Burns made false statements in a parole violation report, falsely accused Sloane of possessing a burglary tool, and took Sloane's personal property from him and did not return it. In his memorandum in opposition to this motion, he adds that Washington, Getz, and Burns conspired against him, "contrived a story to justify their illegal conduct," and submitted false parole reports accusing Sloane of possessing a burglary tool. They submitted these parole reports to Rosenblum, a parole revocation specialist, who then prosecuted plaintiff's parole violation. Based on the allegedly false parole violation reports, plaintiff was taken into custody. Sloane further alleges that the defendants conspired to deprive him of the equal protection of the law, and discriminated against him because of his membership in a racial minority group.
After the attack on March 29, 2000, plaintiff was taken to the Westchester County jail in Valhalla, New York. When he arrived at the jail, Sloane asked to see the medical department about his injuries. On April 5, 2000, medical staff saw him and placed him on a medical list. Plaintiff has scars on his left leg, pain in his lower back, discomfort in his neck, and has been advised that he may not participate in sports until further tests are done.
STANDARD
A court may dismiss an action pursuant to Rule 12(b)(6), Fed.R.Civ.P., only if "'it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which will entitle him to relief.'"Cohen v. Koenig, 25 F.3d 1168, 1172 (2d Cir. 1994) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). In considering the motion, the court must take "as true the facts alleged in the complaint and draw all reasonable inferences in the plaintiff's favor." Jackson Nat'l Life Ins. v. Merrill Lynch Co., 32 F.3d 697, 699-700 (2d Cir. 1994). The court can dismiss the claim only if, assuming all facts alleged to be true, the plaintiff still fails to plead the basic elements of a cause of action.
Where, as here, a party is proceeding pro se, this Court has an obligation to "read [the pro se party's] supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest."Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1998). "Though a court need not act as an advocate for pro se litigants, in pro se cases there is "a greater burden and a correlative greater responsibility upon the district court to insure that constitutional deprivations are redressed and that justice is done.'" Davis v. Kelly, 160 F.3d 917, 922 (2d Cir. 1998) (citation omitted). Nevertheless, a pro se plaintiff's "conclusory allegation . . . without evidentiary support or allegations of particularized incidents, does not state a valid claim." Butler v. Castro, 896 F.2d 698, 700 (2d Cir. 1990)
DISCUSSION
The Court construes the pleadings to allege that (1) each of the defendants is liable for the use of excessive force, (2) each of the defendants except Rosenblum filed a false parole violation report against plaintiff, which caused his immediate arrest, (3) Rosenblum prosecuted Sloane for a parole violation, knowing that the accusation was false, (4) Burns deprived plaintiff of his personal property, (5) Rosenblum denied plaintiff medical treatment, (6) the defendants discriminated against plaintiff based on his race and gender, and (7) all of the defendants conspired against plaintiff.
A. Section 1983
1. Rosenblum's Personal Involvement
Rosenblum has moved to dismiss the Section 1983 claims against him based on the use of excessive force and the denial of medical care for lack of personal involvement, among other grounds. Section 1983 provides a mechanism through which a violation of a constitutional right may be remedied and states that:
Every person who, under color of any statutes, ordinance, regulation, custom or usage, of any State subjects, or causes to be subjected, any citizen of the United States . . . to deprivation of any rights, privileges, or immunities secured by the Constitution and laws shall be liable to the party injured.42 U.S.C. § 1983.
A defendant will be liable for damages under Section 1983 only when he is personally involved in the violation. Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246, 254 (2d Cir. 2001). "For this reason, the doctrine of respondeat superior cannot be used to establish liability under Section 1983." Blyden v. Mancusi, 186 F.3d 252, 264 (2d Cir. 1999). Supervisors are personally involved in the constitutional torts of those whom they supervise when:
"(1) the [official] participated directly in the alleged constitutional violation, (2) the [official], after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the [official] created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the [official] was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the [official] exhibited deliberate indifference to the rights of [others] by failing to act on information indicating that unconstitutional acts were occurring."Johnson, 239 F.3d at 254 (quoting Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)).
Sloane does not allege personal involvement by Rosenblum in the attack on him and the use of excessive force. While plaintiff alleges generally that Rosenblum had supervisory responsibilities over parole officers, he does not allege any facts which would create supervisory liability for the attack, such as direct participation in the attack or creation of an unlawful policy or custom. The excessive force claim against Rosenblum is therefore dismissed.
Sloane also alleges in general terms that Rosenblum withheld "police and medical services" from him. "To state a claim under § 1983 for deprivation of medical treatment in violation of the Eighth Amendment, a plaintiff must show that the defendant acted with "deliberate indifference to serious medical needs.'" Harrison v. Barkley, 219 F.3d 132, 136 (2d Cir. 2000) (citation omitted). Sloane has not alleged any facts from which to infer that Rosenblum was aware that Sloane had a serious medical need, had any role in a decision to provide or deny treatment to Sloane, or was 'deliberately indifferent" to Sloane's medical needs. Thus, plaintiff's conclusory allegation that Rosenblum withheld medical services from him does not support a separate cause of action.
2. Due Process
Sloane complains that all of the defendants except Rosenblum violated his due process rights by conspiring to submit a false parole report to justify their illegal attack on him. As alleged by Sloane, the parole violation report falsely accused him of possessing a burglary tool. Sloane complains that Burns, Washington, and Getz made false statements in the report.
While the filing of a false parole report in and of itself does not state a constitutional violation, Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir. 1986), the plaintiff had "the right not to be deprived of a protected liberty interest without due process of law." Id. Sloane's allegation that the three defendants "fabricated a parole violation and arrested him knowing [they] lacked probable cause to do so" states a claim. Scotto v. Almenas, 143 F.3d 105, 113 (2d Cir. 1998); see also Walker v. Mendoza, No. 00-CV-93 (JG), 2000 WL 915070, at *4 (E.D.N Y June 27, 2000); Taylor v. Sullivan, 980 F. Supp. 697, 705 (S.D.N Y 1997).
Qualified Immunity
Burns contends that she is entitled to qualified immunity because it was objectively reasonable for her to issue a Notice of Violation against Sloane. Qualified immunity protects state actors sued in their individual capacity from a suit for damages. Johnson, 239 F.3d at 250. A state actor is qualifiedly immune if either "(a) the defendant's action did not violate clearly established law, or (b) it was objectively reasonable for the defendant to believe that his action did not violate such law." Id.
Burns does not contend that the law was not clearly established in 2000. She does assert, however, that it was objectively reasonable for her to file a report charging Sloane with possession of a burglary tool. At this stage of the proceedings, when the Court is required to take the plaintiff's allegations as true, the Court cannot determine whether Burns' conduct was objectively reasonable. See Scotto, 143 F.3d at 113.
Absolute Immunity
Rosenblum and Getz contend that they are absolutely immune from suit with respect to plaintiff's due process claims arising from the prosecution of the parole violation report submitted by Burns. Getz, a senior parole officer, approved the report. Rosenblum, as the parole revocation specialist, prosecuted the violation. State parole officers are entitled to absolute immunity in Section 1983 actions for damages "for their actions in initiating parole revocation proceedings and in presenting the case for revocation to hearing officers, because such acts are prosecutorial in nature." Scotto, 143 F.3d at 112. Consequently, both Rosenblum and Getz have absolute immunity to the extent that they are accused of approving and prosecuting the report.
B. Discrimination Claims
Plaintiff alleges in conclusory terms that the defendants discriminated against him in violation of his rights under the Equal Protection Clause, Section 1981, and Section 1985(3). Each of these claims requires proof of intentional racial discrimination or, with the exception of Section 1981, other cognizable class-based animus. Brown v. City of Oneonta New York, 221 F.3d 329, 337-41 (2d Cir. 2000). To plead such violations, the plaintiff must point to a law or policy that expressly classifies persons on the basis of race, identify a policy applied in an intentionally discriminatory manner, or allege a policy that has an adverse effect and was motivated by discriminatory animus. Id. at 337. Since the plaintiff has not alleged any facts that would permit him to bring a discrimination claim under any of these theories, his discrimination claims are dismissed.
C. Deprivation of Property
Sloane also complains that Burns violated his due process rights by confiscating his personal property and not returning it to him. When an adequate state remedy exists for loss of property, however, an inmate may not pursue damages through a Section 1983 claim. Morello v. Smith, 810 F.2d 344, 347 (2d Cir. 1987); Smith v. O'Connor, 901 F. Supp. 644, 647 (S.D.N.Y. 1995). Sloane has not provided any argument that the New York State remedy is not adequate. See Smith, 901 F. Supp. at 647. Thus, this claim is dismissed.
D. State Law Claims
To the extent plaintiff brings state law claims against defendants for gross negligence, negligent training and supervision, assault, battery, malice, and fraud, they must be dismissed. Under New York Executive Law § 259-q, an officer or employee of the State Division of Parole may not be sued in his personal capacity. Section 259-q provides in pertinent part:
Defendants cite New York Correction Law § 24(1), which applies to employees of the State Department of Corrections Services. The more relevant statute, however, appears to be New York Executive Law § 259-q, which applies to employees of the State Division of Parole.
1. No civil action shall be brought in any court of the state, except by the attorney general on behalf of the state, against any officer or employee of the division, in his personal capacity, for damages arising out of any act done or the failure to perform any act within the scope of the employment and in the discharge of the duties by such officer or employee.
2. Any claim for damages arising out of any act done or the failure to perform any act within the scope of the employment and in the discharge of the duties of any officer or employee of the division shall be brought and maintained in the court of claims as a claim against the state.
N.Y. Exec. Law § 259-q (McKinney 2001).
The Second Circuit has considered language identical to Section 259-q with respect to New York Correction Law § 24(1), which applies to employees of the Department of Corrections: "[i]t is well settled that Section 24 shields employees of a state correctional facility from being called upon to personally answer a state law claim for damages based on activities that fall within the scope of the statute." Ierarde v. Sisco, 119 F.3d 183, 186 (2d Cir. 1997); Baker v. Coughlin, 77 F.3d 12, 14-15 (2d Cir. 1996); see also Arteaga v. State, 72 N.Y.2d 212, 221 (N Y 1988). Under Section 24, such immunity is available whether the action is pursued in a state court or, under pendent jurisdiction, in a federal court. Ierarde, 119 F.3d at 187. Moreover, this immunity applies to conduct that violates the employer's regulations or that is beyond the employee's authority. Id. Since the defendants were functioning as parole officers during their interaction with the plaintiff, the state law claims must be dismissed even if the defendants abused their offices and otherwise violated the plaintiff's rights during their interaction. There is no reason to interpret Section 259-q differently from Section 24 with respect to immunity from suit. Oliver v. Cuttler, 968 F. Supp. 83, 90 (E.D.N.Y. 1997).
E. Eleventh Amendment
Finally, plaintiff's claims for damages against defendants in their official capacities are barred by the Eleventh Amendment. K A Radiologic Tech. Servs. Inc. v. Commissioner of the Dep't of Health, 189 F.3d 273, 278 (2d Cir. 1999). The Eleventh Amendment does not, however, bar plaintiff's claims against defendants in their individual capacities.
F. Amend Complaint
A pro se plaintiff should be allowed to amend his pleadings "[u]nless it can be said that under the allegations of this complaint it appears that plaintiff is entitled to no relief under any view of the facts that could be produced in support of his cause of action." Tashis v. Riese Corp., 211 F.3d 30, 39 (2d Cir. 2000). Although plaintiff has already amended his complaint once, he is nevertheless granted an opportunity to amend his complaint to incorporate the specific factual allegations included in his memorandum in opposition to this motion.
CONCLUSION
For the reasons stated, the defendants' motion to dismiss is granted in part. All claims against Rosenblum, the due process claim against Getz for his approval of the parole violation report, the deprivation of property claim against Burns, all discrimination claims, all state law claims, and the claims brought against the defendants in their official capacities are dismissed. The plaintiff's remaining claims are: (1) the claim against Burns, Washington, and Getz in their individual capacities for the use of excessive force, and (2) the due process claim against Burns, Washington, and Getz in their individual capacities for the statements made in the parole violation report. A scheduling order shall be issued with this Opinion.
SO ORDERED: