Opinion
99 Civ. 4635 (KMW)(FM).
December 8, 2000.
REPORT AND RECOMMENDATION TO THE HONORABLE KIMBA M. WOOD
I. Introduction
Plaintiff Richard W. Chisholm ("Chisholm"), an inmate at the Franklin Correctional Facility in Malone, New York, has instituted this pro se civil rights action under 42 U.S.C. § 1983 and 1985 against the State of New York and several employees of the New York State Department of Correctional Services ("DOCS") to recover compensatory and punitive damages allegedly arising out of his removal, in early April 1996, from the DOCS Temporary Release Program ("TRP"). Chisholm's Amended Complaint ("Complaint" or "Compl.") alleges violations of his rights under the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States Constitution. He also seeks to recover damages on several pendent state law claims of negligence and intentional tort.
The defendants have moved to dismiss the Complaint, pursuant to Rule 12(b) of the Federal Rules of Civil Procedure, on the grounds that (a) the State of New York is immune from suit under the Eleventh Amendment, (b) the individual defendants are qualifiedly immune, and (c) Section 24 of the New York Correction Law (McKinney 1987) shields the individual defendants from any recovery on the state law claims because they were acting within the scope of their employment by DOCS.
As set forth in greater detail below, I recommend that the motion be granted and that the Complaint be dismissed.
II. Background
The following factual recitation is drawn from Chisholm's Complaint and his "Reply to Motion to Dismiss" ("Pl.'s Mem.").
A. Relevant Facts
Chisolm has been incarcerated by DOCS under several names, including Jeffrey Sheppard and Reginald Claiborn. (Compl. ¶ 7). During the course of his confinement, he successfully settled a prior federal suit against the Commissioner of the New York City Department of Correction and other defendants, receiving net proceeds of more than $12,000. (Compl. ¶ 16; Pl.'s Mem. Ex. C).
In early 1996, Chisolm was transferred to the Fulton Correctional Facility in the Bronx ("Fulton") so that he could participate in the TRP. (Compl. ¶ 16) Thereafter, on February 28, 1996, he was furloughed to his home at 365 Ford Street, Bronx, New York, for a period of five days, during which time he began making purchases using the settlement funds. (See id.). Ultimately, he spent all of the settlement proceeds on clothing, household goods, and a used car. (Id. ¶¶ 16-21).
In early March 1996, before a second furlough expired, Chisholm was offered a job at Uptown Hair Design in the Bronx. Defendant Ademola Carew, a correctional counselor at Fulton, "approved" this proposed place of employment after conducting an investigation. (Id. ¶¶ 13, 22).
On March 19, 1996, Carew granted Chisolm a one-day "work furlough" so that he could be at his home in the Bronx while a repairman was working there. (Id. ¶ 27). Later that morning, after the repairman completed his work, Chisholm reported to his newly-found job. That evening, at approximately 5:55 p.m., Chisholm's employer gave him permission to leave work early because a "very severe wind and rain storm hit the barber shop area," making it unlikely that there would be any additional customers. (Id.). Rather than returning directly to Fulton, Chisholm decided to stop at his home to change his clothes because he was "soaked to [his] socks." (Id.).
When Chisholm eventually arrived at Fulton at 7:50 p.m., he was placed on the "restricted" floor. (Id.). The following day, he was not permitted to speak Carew, but learned that he had been placed on restriction because he had not been at Uptown Hair Design when his parole officer visited there the previous night at 6:40 p.m. (Id. ¶ 28).
On March 16, 1996, Chisholm "explained everything"at a hearing before the Fulton Temporary Release Committee ("TRC") chaired by defendant Catherine A. Cook. (Id. ¶ 29). In response, Cook allegedly advised Chisholm that he would be "taken off restriction," but would need to secure a different job within six days. (Id.).
On April 1, 1996, Chisholm requested additional furlough time to attend a funeral on April 4, 1996, at 10:00 a.m. (Id. ¶ 30). Cook told Chisolm that he could attend the service during the time allotted for his job search furlough, but would not, as a consequence, be given any additional time to find employment. (Id.).
On April 3, 1996, after securing a new job, Chisolm returned to Fulton, where he was advised by the counselor on duty that he would again need to secure Cook's approval to attend the funeral. (Id. ¶¶ 31-32). Because Cook was late in arriving the following morning, Chisolm instead secured the required permission from the senior correctional counselor on duty. (Id. ¶ 33). After the funeral, Chisholm went home to console his wife. He received a telephone call from Cook at approximately 10:50 a.m., during which Cook instructed him to return to Fulton. (Id. ¶ 34). Upon his arrival, and without explanation, Chisholm was again placed on restriction and his requests to speak with Carew were denied. (Id. ¶ 35).
On April 5, 1996, at 9:30 a.m., the Fulton TRC met to consider charges that Chisolm had been at home the prior day when he should have been at work and had failed to follow instructions. (Id. ¶ 37). Cook chaired this hearing, which was also attended by defendant Christopher Calt, a Senior Parole Officer, and defendant Edward Alonz, a Correctional Officer. (Id. ¶ 37). Chisolm alleges that, pursuant to the applicable DOCS rules, an inmate must be informed of the charges against him at least twenty-four hours before a hearing. (Id. ¶ 36 (citing N.Y. Comp. Codes R. Regs, tit. 7, § 253.6(a)). Chisolm further alleges that, pursuant to the rules, the hearing officer cannot be a person who participated in the investigation of the charges against the inmate or prepared the misbehavior report. (Id. (citing § 253.1(b)). When Cook asked Chisholm whether he objected to her serving as chair, he said "no," ostensibly because he did not believe that he had a choice. (Id. ¶ 37). Ms. Cook then handed to Chisholm for the first time a copy of the charges that had been lodged against him. (Id.). Shortly thereafter, Cook informed Chisholm that he had been terminated from the TRP, a decision later affirmed by Fulton Superintendent Frank Headley. (Id. ¶ 38).
On April 11, 1996, Chisholm was transferred to a more secure facility in upstate New York. (Id. ¶ 39). Although Chisholm appealed his termination from the TRP, defendant James Recore, Director of the TRP, affirmed the TRC's decision in June 1996, despite his knowledge of the "true facts." (Id. ¶ 40). Chisolm's removal from the TRP caused both him and his wife immense emotional distress. (Id. ¶ 39). Indeed, in May 1996, because she could not bear the strain of these events, Chisholm's wife "left [him] and took all [of his] money and property," which he has, since then, been trying to recover. (Id. ¶ 41).
B. Article 78 Proceeding
Following these events, Chisholm filed an Article 78 proceeding in Supreme Court, Albany County, under the name Jeffrey Sheppard. (See Pl.'s Mem. Ex. A). In his petition, Chisolm challenged the April 4, 1996 TRC decision. After reviewing the record, by Decision and Order dated February 13, 1997, Justice Anthony Kane remanded the case to the TRC for "a second hearing to be conducted by someone other than Senior Counselor Cook." (Id.). Justice Kane took this step after he concluded that Chisholm's consent to having Cook chair the TRC hearing could not have been "knowing and intelligent" because he had not been told in advance that she would also be the sole witness testifying against him. (Id.).
The record does not indicate what happened after the renewed TRC hearing, but it appears that Chisholm remains ineligible for the TRP because he is incarcerated in upstate New York.
The Complaint refers to a number of exhibits, none of which are attached to the original filed with the Court or the copy served on the defendants. (See Compl. [Dkt. Entry No. 6]; Defs.'s Mem. at 2 n. 1). Several exhibits are attached, however, to Chisolm's opposition papers. (See Pl.'s Mem. Exs. A-D).
In his 35-page Complaint, Chisolm sets forth nineteen "counts" seeking monetary damages only. These claims fall into three categories. Counts 1 through 5, 18 and 19 all pertain to the damages resulting from the defendants' alleged violations of Chisholm's constitutional rights. Counts 6 through 8 relate to the damages he allegedly sustained as a result of the defendants' participation in a conspiracy to deprive him of his civil rights in violation of 42 U.S.C. § 1985. Counts 9 through 17 are state law claims arising under various theories of negligence and intentional tort. The Complaint indicates that the defendants other than the State "are sued individually and in their full [presumably official] capacities." (Compl. ¶ 15 (parenthetical added)).
Although defendant Christopher Calt evidently never was served, (see Pl.'s Response to Defs.' Reply Mem. at Ex. A), the Attorney General has also moved to dismiss the Complaint on his behalf. (See Defs.' Mem. at 1). Also, defendant Glenn S. Goord, Commissioner of DOCS, is listed as a defendant in response to a question on the form portion of Chisolm's pro se Complaint, but does not appear to be mentioned anywhere else.
III. Discussion
A. Standard of Review
On a motion to dismiss under Rule 12(b)(6), the court must accept as true all factual allegations made in the complaint and draw all reasonable inferences in favor of the plaintiff. See Leatherman v. Tarrant County Narcotics Intelligence Coordination Unit, 507 U.S. 163, 164, 113 S.Ct. 1160, 1161, 122 L.Ed.2d 517 (1993); Bolt Electric, Inc. v. City of New York, 53 F.3d 465, 469 (2d Cir. 1995); Harris v. City of New York, 186 F.3d 243, 247 (2d Cir. 1999). The court may grant the motion to dismiss only when "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Walker v. City of New York, 974 F.2d 293, 298 (2d Cir. 1992) (quoting Frazier v. Coughlin, 850 F.2d 129, 129 (2d Cir. 1988)).
Moreover, when a plaintiff is proceeding pro se, as here, the complaint must be held "to less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972) (per curiam). Accordingly, the allegations must be read "liberally" and interpreted "to raise the strongest arguments that they suggest." Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). This principle applies with particular force in cases such as this in which a pro se plaintiff alleges violations of his civil rights. See, e.g., Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993); Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991).
In keeping with these precepts, although Rule 12(b)(6) generally restricts a court's consideration to the four corners of the complaint, pro se pleadings may be read together to determine whether a plaintiff conceivably could be entitled to relief. See, e.g., Burgess v. Goord, No. 98 Civ. 2077, 1999 WL 33458, at *1 n. 1 (S.D.N.Y. Jan. 26, 1999) (Scheindlin, J.) (considering allegations set forth in plaintiff's opposition papers in deciding defendants' Rule 12(b)(6) motion); Gadson v. Goord, No. 96 Civ. 7544, 1997 WL 714878, at *1 n. 2 (S.D.N Y Nov. 17, 1997) (Sotomayor, J.) (same); Donahue v. United States Dep't of Justice, 751 F. Supp. 45, 49 (S.D.N.Y. 1990) (Cannella, J.) ("The policy reasons favoring liberal construction of pro se pleadings warrant the Court's consideration of the allegations contained in plaintiffs' memorandum of law, at least where those allegations are consistent with the allegations in the complaint."). Courts also properly may look beyond the complaint when a party seeks its dismissal for lack of subject matter jurisdiction. See Kamen v. American Tel. Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986); Exchange Nat'l Bank of Chicago v. Touche Ross Co., 544 F.2d 1126, 1130-31 (2d Cir. 1976); Marsden v. Federal B.O.P., 856 F. Supp. 832, 835 (S.D.N.Y. 1994) (Stanton, J., adopting report and recommendation of Grubin, Mag. J.).
Notwithstanding the liberal treatment accorded to pro se pleadings, the Complaint and other papers in this action plainly fail to state a cause of action upon which relief can be granted. First, Chisholm's claims against the State of New York, and the other defendants insofar as they are sued in their official capacities, are barred by the Eleventh Amendment. Second, Chisolm's constitutional claims against the defendants in their individual capacities are barred under the doctrine of qualified immunity. Third, the pendent state law claims against the defendants in their individual capacities are precluded by Section 24 of the New York Correction Law.
B. Eleventh Amendment
Under the Eleventh Amendment, a state is generally immune from suit in federal court unless the state consents to be sued. Papasan v. Allain, 478 U.S. 265, 276, 106 S.Ct. 2932, 2929, 92 L.Ed.2d 209 (1986); see also De La Nueces v. United States, 780 F. Supp. 216, 217 (S.D.N.Y. 1992). There are two exceptions to this general rule: an explicit and unequivocal waiver of immunity by a state or a similarly clear abrogation of the immunity by Congress. See Pennhurst State School Hosp. v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 907, 79 L.Ed.2d 67 (1984); Hallett v. DOCS, 109 F. Supp.2d 190 (S.D.N.Y. 2000); Burrell v. City Univ. of New York, 995 F. Supp. 398, 410-11 (S.D.N.Y. 1998). In this case, there has been no showing that either Congress or the State of New York has manifested an intent to abrogate the State's Eleventh Amendment immunity. Accordingly, the complaint must be dismissed insofar as it seeks to recover damages in this forum against the State of New York. Eleventh Amendment immunity also extends to state officials if the relief to be granted "would bind the state or where the state is the real party in interest." Melo v. Combes, No. 97 Civ. 0204, 1998 WL 67667, at *3 (S.D.N.Y. Feb. 18, 1998) (Koeltl, J.) (quoting Russell v. Dunston, 896 F.2d 664, 667 (2d Cir. 1990)). When an official is sued in his official, rather than his personal, capacity the state is the real party in interest. Id. (citing Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 3105, 87 L.Ed.2d 114 (1985)). A plaintiff therefore may not recover damages in federal court from a state official acting in his official capacity. See, e.g., Spencer v. Doe, 139 F.3d 107, 111 (2d Cir. 1998) (citing Kentucky v. Graham, 473 U.S. at 169, 105 S.Ct. at 3107).
Chisholm cites four cases in support of his contention that the State's decision to respond to his Article 78 proceeding manifests its implied consent to be sued in this forum insofar as this action raises the same issues. The first case, Wisconsin Dep't of Corr. v. Schacht, 524 U.S. 381, 118 S.Ct. 2047, 141 L.Ed.2d 364 (1998), simply indicates that the presence of a claim barred by the Eleventh Amendment does not prevent a federal court from hearing nonbarred claims following the removal of a case from state court. Here, however, Chisolm has not brought any claims against the State which are not barred by Eleventh Amendment immunity. The second case, Caterpillar, Inc. v. Lewis, 519 U.S. 61, 117 S.Ct. 467, 136 L.Ed.2d 437 (1996), involved only private parties and makes no mention of the Eleventh Amendment. Finally, the remaining cases cited by Chisholm were expressly abrogated by Schacht. Thus, there is no authority for Chisolm's implied waiver argument.
Here, although Chisolm's Complaint indicates that he is suing the individual defendants in both their individual and their official capacities, the sole relief sought against them is money damages. Accordingly, to the extent that Chisolm is suing these defendants in their official capacities, his complaint must be dismissed on Eleventh Amendment grounds.
C. Qualified Immunity
The individual defendants also claim that they are entitled to qualified immunity to the extent that Chisolm seeks to recover money damages from them in their personal capacities. Under the qualified immunity doctrine, government officials are shielded from personal liability for damages that arise out of the performance of their official duties so long as their conduct does not violate "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). The standard is objective; thus "bare allegations of malice" will not enable a plaintiff to survive a motion to dismiss. See id., 457 U.S. at 817-18, 102 S.Ct. 2738; Sound Aircraft Servs., Inc. v. East Hampton, 192 F.3d 329, 334 (2d Cir. 1999) ("qualified immunity may shield a defendant from liability 'even when the official conduct is motivated, in part, by hostility to the plaintiff.'") (quoting Crawford-El v. Britton, 523 U.S. 574, 591, 118 S.Ct. 1584, 1593, 140 L. Ed.2d 759 (1998))
In the Second Circuit, the standard for determining whether a particular right was clearly established at the time of the relevant events is
whether the right in question was defined with "reasonable specificity"; (2) whether the decisional law of the Supreme Court and the applicable circuit court support the existence of the right in question; and (3) whether under preexisting law a reasonable defendant official would have understood that his or her acts were unlawful.
Richardson v. Selsky, 5 F.3d 616, 621 (2d. Cir. 1993). "Even where the plaintiff's federal rights and the scope of the official's permissible conduct are clearly established, the qualified immunity defense protects a government actor if it was 'objectively reasonable' for him to believe that his actions were lawful at the time of the challenged act." Lennon v. Miller, 66 F.3d 416, 420 (2d Cir. 1995) (citing Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987); Robison v. Via, 821 F.2d 913, 921 (2d Cir. 1987)).
Chisolm argues that his due process rights must have been "clearly established" within the meaning of Richardson at the time of his removal from the TRP because both the law of New York and this Circuit's own case law set forth procedures which DOCS was required to follow to ensure adequate due process. Turning first to his claim under New York law, DOCS has promulgated procedures for the removal of an inmate participating in the TRP who is accused of having acted improperly. See New York Comp. Codes R. Regs., tit. 7, § 1904.2 (1996). Among the inmate's rights are the right to have 24-hour advance notice of the charges, to appear personally before the TRC, to call witnesses and produce evidence, and to have a written explanation of the TRC's decision. Id. The availability of such state procedures, however, does not "clearly establish" that an inmate has a liberty interest under the Due Process clause of the Fourteenth Amendment. See, e.g., Watson v. City of New York, 92 F.3d 31, 37-38 (2d Cir. 1996) ("Ample precedent establishes that a state rule of criminal procedure . . . does not create a liberty interest that is entitled to protection under the federal constitution."); Yant v. Scholack, 95 Civ. 9462, 1998 WL 157053, at *5 (S.D.N Y Apr. 3, 1998) ("[S]tate regulations do not define the parameters of constitutionally required due process."). Rather, the Court must determine whether there is a "substantive interest to which the individual has a legitimate claim of entitlement." See Olim v. Wakinekona, 461 U.S. 238, 250, 103 S.Ct. 1741, 1748, 75 L.Ed.2d 813 (1983).
To determine whether Chisolm had a clearly established liberty interest in remaining as a participant in the TRP at the time that he was removed from it by the TRC, one must look to the case law of the Supreme Court and the Second Circuit as it then existed. Richardson, 5 F.3d at 621. For many years prior to Chisolm's participation in the TRP, the Second Circuit held that prisoners in New York State jails had such a clearly established liberty interest in remaining in a work release program. See, e.g., Tracy v. Salamack, 572 F.2d 393, 395-96 (2d Cir. 1978); Severino v. Negron, 996 F.2d 1439, 1441 (2d Cir. 1993) ("it has been clear since Tracy that a liberty interest exists in a work release program"). The Second Circuit's analysis relied, at least in part, upon the limited discretion granted to corrections officials in connection with the TRP. See Kim v. Hurston, 182 F.3d 113, 117 (2d Cir. 1999) ("Tracy grounded the liberty interest partly on a loss of liberty described as 'grievous' and partly on the narrow bounds of discretion that state law established for exercising discretion to grant admission to a work release program") (footnote and citation omitted); Tracy, 572 F.2d at 396 n. 9 (noting that the New York "statutory language, as well as the requirement to formulate regulations imposed on the [DOCS C]ommissioner indicates that discretion may be exercised only within established parameters."). In other circumstances, where prison officials are accorded greater discretion, the Second Circuit has declined to find an enforceable liberty interest. See, e.g., Klos v. Haskell, 48 F.3d 81, 86 (2d Cir. 1995) (upholding inmate's removal from shock incarceration program "in light of the broad discretion which the New York statute and regulations confer on the Commissioner"); Purnell v. Lord, 952 F.2d 679, 685 (2d Cir. 1992) (declining to find liberty interest in inmate-to-inmate correspondence where state regulation did not contain mandatory language).
In 1995, the Supreme Court rejected the continued use of a "discretion" analysis by the lower courts, holding that a prisoner's liberty interest would generally be limited to "freedom from restraint which . . . imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 483-84, 115 S. Ct. 2293, 2300, 132 L.Ed.2d 418 (1995). Following the Sandin decision, the viability of Tracy and its progeny was placed in doubt, with many judges in this Circuit, including some in this District, reaching differing conclusions as to an inmate's entitlement to continued participation in the TRP. Compare Dudley v. Coombe, No. 96 Civ. 1665, 1997 WL 423074, at *3 (S.D.N.Y. July 28, 1997) (Cedarbaum, J.) (holding that removal from a work release program without a hearing does not, as a matter of law, allege the deprivation of a constitutionally-protected liberty interest), and Duffy v. Slesky, No. 95 Civ. 0474, 1996 WL 407225, at *12 (S.D.N.Y. July 18, 1996) (Sand, J.) (same), with Greaves v. New York, 951 F. Supp. 33, 35 (S.D.N Y 1996) (Scheindlin, J.) (plaintiff "surely had a liberty interest" under Sandin "in his continued participation in the TRP"); Roucchio v. Coughlin, 923 F. Supp. 360, 374 (E.D.N.Y. 1996) (Seybert, J.) ("revocation of this conditional freedom . . . worked a 'major disruption' in [plaintiff's] prison environment" within the meaning of Sandin), and Quartararo v. Catterson, 917 F. Supp. 919, 940 (E.D.N.Y. 1996) (Seybert, J.) (expressly holding that "Tracy continues to be good law" despite Sandin).
Whether participation in the TRP gave rise to a liberty interest under Sandin remained an unsettled question in this Circuit until the relatively recent decision in Kim v. Hurston. 182 F.3d 113. There, the Court of Appeals applied the Sandin standard to the TRP, concluding that inmates still enjoy a protectable liberty interest in continued participation. Id. at 117-18. In arriving at this determination, the court relied upon Young v. Harper, 520 U.S. 143, 152-53, 117 S.Ct. 1148, 1154, 137 L.Ed.2d 270 (1997), a post-Sandin decision in which the Supreme Court concluded that an Oklahoma pre-parole conditional supervision program virtually indistinguishable from the TRP "was sufficiently like parole to invoke the procedural protections outlined in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 454 (1972)." Kim, 182 F.3d at 118. In effect, Kim reaffirmed the holding of Tracy and the cases which followed it, but under a different rationale.
Under the relevant Supreme Court and Second Circuit case law, Chisolm's liberty interest in continued participation in the TRP therefore was clear prior to Sandin and, similarly, clear after Kim. Here, however, the TRC removed Chisolm from the TRP on April 5, 1996, during the period between these two decisions when various district judges were grappling with the meaning of Sandin, and reaching varying conclusions regarding a temporary releasee's rights. As the Second Circuit previously has stated on nearly identical facts: "If the district judges in the Southern District of New York, who are charged with ascertaining and applying the law, could not determine the state of the law with reasonable certainty, it seems unwarranted to hold prison officials to a standard that was not even clear to the judges." Richardson, 5 F.3d at 623. Accordingly, because it would have been "objectively reasonable" for prison officials to believe that an inmate, such as Chisolm, lacked a clearly established liberty interest in remaining in the TRP in the period between Sandin and Kim, the individual defendants are entitled to assert a qualified immunity defense. Chisolm's claims that the individual defendants impermissibly denied Chisolm his due process rights therefore must be dismissed.
It bears mention that none of the post-Sandin district court decisions were issued before the date that Chisholm was removed from the TRP. If anything, the law was even less clear during this period before district judges began to address the issue.
D. State Law Immunity of Corrections Officers
Chisolm's Complaint also contains several state law claims against the defendants grounded on theories of negligence and intentional tort. As noted earlier, Chisolm indicates in his Complaint that he is suing them "individually and in their full capacities." (Compl. ¶ 15). In his memorandum in opposition to the motion to dismiss, Chisolm also states, however, that "THE INDIVIDUAL DEFENDANTS ARE NOT SUED IN THEIR PERSONAL CAPACITIES." (Pl.'s Mem. at 15).
To the extent that Chisolm seeks damages against the State or the individual defendants in their official capacities, his state law claims are foreclosed by the Eleventh Amendment for the reasons noted earlier.
To the extent that Chisolm seeks damages from the individual defendants in their personal capacities on his state law claims, the defendants argue that any recovery is barred by Section 24 of New York Correction Law ("Section 24"). That statute provides that no civil action may be brought against any DOCS employee 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." This language, which is intended to restrict the forum for such suits to the New York State Court of Claims, is equally applicable to state law claims brought against DOCS employees in federal court. See Baker v. Coughlin, 77 F.3d 12, 15-16 (2d Cir. 1996) (Section 24 precludes claim against corrections officers in their personal capacity "in any court, including the federal courts"); Jackson v. DOCS, 994 F. Supp. 219, 224 (S.D.N.Y. 1998) (inmate kept in keeplock for 13 days may not bring pendent state law claim against correctional officers in their individual capacities).
Subsection 2 of Section 24 provides that:
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 [DOCS] shall be brought and maintained in the court of claims as a claim against the state.
The individual defendants contend that the state law claims against them must be dismissed because their actions relating to Chisholm's removal from the TRP were taken "within the scope of their employment" as corrections officers. Chisolm argues that the individual defendants are not entitled to Section 24 immunity under Ierardi v. Sisco, 119 F.3d 183 (2d Cir. 1997), because any actions undertaken by correctional officers in violation of an inmate's constitutional rights are, as a matter of law, outside the scope of their employment and, therefore, not covered by Section 24. In Ierardi, the Second Circuit held that Section 24 did not immunize a corrections officer against state law claims of sexual harassment brought by a fellow DOCS employee. As the court noted, "[i]f in fact the alleged conduct occurred, it was prompted purely by 'personal reasons unrelated to the employer's interest.'" Id. at 188. (quoting Gore v. Kuhlman, 217 A.D.2d 890, 891, 630 N.Y.S.2d 141 (3d Dep't 1995)). Accordingly, even though the harassment was alleged to have taken place during the time of the defendant's employment, the Court held that it could not, as a matter of law, have been within the scope of his employment. Id.
In Ierardi, the Second Circuit stated that an employee is entitled to Section 24 immunity under New York law when "the act was done while the servant was doing his master's work, no matter how irregularly, or with what disregard of instructions." Id. at 187 (quoting Riviello v. Waldron, 47 N.Y.2d 297, 302, 418 N.Y.S.2d 300, 302, 391 N.E.2d 1278, 1281 (1979)). Consequently, because Chisolm's removal from the TRP was unquestionably undertaken by the individual defendants in this case as part of their regular duties, they are entitled to Section 24 immunity with respect to his state law claims — even if, as Chisolm argues, they failed to comply with the applicable prison guidelines. Chisolm's state law claims against the individual defendants therefore must be dismissed.
IV. Conclusion
For the foregoing reasons, I respectfully recommend that the motion to dismiss the Complaint in this action be granted.
V. Notice of Procedure for Filing of Objections to This Report And Recommendation
The parties shall have ten days from the service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a) and (e). Any such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Kimba M. Wood, at the United States Courthouse, 500 Pearl Street, New York, New York 10007, to the chambers of the undersigned, at the United States Courthouse, 500 Pearl Street, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b). Any requests for an extension of time for filing objections must be directed to Judge Wood. 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, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Fed.R.Civ.P. 6(a), 6(e), 72(b).