Opinion
No. CA 06-00601.
December 22, 2006.
Appeal from an order of the Supreme Court, Wyoming County (Mark H. Dadd, A.J.), entered February 6, 2006. The order granted defendant's motion to dismiss the complaint.
KEITH HAYWOOD, PLAINTIFF-APPELLANT PRO SE.
ELIOT SPITZER, ATTORNEY GENERAL, ALBANY (ROBERT M. GOLDFARB OF COUNSEL), FOR DEFENDANT-RESPONDENT.
Before: Scudder, P.J., Martoche, Centra and Pine, JJ.
It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum: Plaintiff, a prisoner at Attica Correctional Facility, commenced an action against a civilian employee of the Department of Correctional Services (DOCS) who serves as a prison disciplinary hearing officer, and plaintiff commenced a second action against various prison guards and supervisory personnel employed by DOCS. In both actions, plaintiff seeks damages from the DOCS employees based on their alleged tortious conduct committed in violation of plaintiffs federal and state constitutional rights. Contrary to plaintiffs contention, Supreme Court properly granted the motion of the defendant in the first action and the motion of the defendants in the second action for dismissal of the respective complaints pursuant to CPLR 3211 and Correction Law § 24. According to the allegations of the complaints, defendants' conduct is encompassed by Correction Law § 24. That statute, however, precludes plaintiff from suing DOCS employees, "in [their] personal capacity, for damages arising out of any act done or the failure to perform any act within the scope of the[ir] employment and in the discharge of the[ir] duties" (§§ 24 [1]; see Gore v Kuhlman, 217 AD2d 890, 891; see also Woodward v State of New York, 23 AD3d 852, 855-856, lv dismissed 6 NY3d 807). We further reject plaintiffs contention that Correction Law § 24 is preempted by federal law, particularly the Supremacy Clause of the United States Constitution and 42 USC § 1983, and that the court therefore erred in dismissing plaintiffs federal civil rights claims in the first action and his federal civil rights cause of action in the second action ( see Woodward, 23 AD3d at 853-855; Cepeda v Coughlin, 128 AD2d 995, 997, lv denied 70 NY2d 602; see also Martinez v California, 444 US 277, 284 n 7 [1980], reh denied 445 US 920; cf. Howlett v Rose, 496 US 356, 372-375).