Opinion
11-CV-5462(SJF)
December 06, 2011.
MEMORANDUM AND ORDER
Plaintiff Troy Clayton Wallace ("Plaintiff), currently incarcerated at the Suffolk County Correctional Facility, brings this pro se action pursuant to 42 U.S.C. § 1983. Plaintiffs request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 is granted. For the reasons discussed below, plaintiffs claims against the New York State Department of Corrections and Community Supervision and Andrea Evans are dismissed. Plaintiffs remaining claims against Parole Officer F. Kelsick ("Kelsick") and Senior Parole Officer Senzamici ("Senzamici") shall proceed.
BACKGROUND
Plaintiff alleges that, "on or about September 16th," defendants Kelsick and Senzamici unlawfully entered "the residence of 7 Vincent Place, Oakdale, N.Y." without a warrant and arrested him for an alleged parole violation. Complaint [Docket Entry No. 1] ("Compl.") at ¶ IV. Plaintiff further alleges that "it seems to be the policy and custom of [New York State Department of Corrections and Community Supervision] to operate beyond its constitutional scope of authority," and that Andrea Evans — Chairwoman of the New York State Division of Parole — has ignored his letters complaining about the agency. Id. Plaintiff seeks monetary damages and injunctive relief. Id. at ¶ V.
STANDARD OF REVIEW
DISCUSSION
pro se Boykin v. KeyCorp521 F.3d 20221428 U.S.C. § 1915A 28 U.S.C. § 1915Asua sponte Id. Claims Against NYS Department of Corrections and Community Supervision
The Eleventh Amendment bars federal court claims against states, absent their consent to such suit or an express statutory waiver of immunity.See Will v. Michigan Dep't of State Police. 491 U.S. 58, 66 (1989); Pennhurst State School Hospital, 465 U.S. 89, 98-100 (1984). As an agency or arm of the State of New York, the New York State Department of Corrections and Community Supervision is immune from suit under the Eleventh Amendment, see Chapman v. New York, No. 1 l-CV-1814, 2011 WL 4344209, at *2 (E.D.N.Y. Sept. 14, 2011), and there is nothing to suggest that this agency has consented to be sued in this Court. Thus, plaintiffs claim for damages against the New York State Department of Corrections and Community Supervision is dismissed. See, e.g., McCloud v. Jackson, 4 Fed. Appx. 7, 10 (2d Cir. 2001) (dismissing plaintiffs claims against the New York State Division of Parole because the Eleventh Amendment bars suits against states or state agencies); Coleman v. City of New York, No. 03 Civ. 4921, 2009 WL 705539, at *4 (E.D.N.Y. Mar. 16, 2009) ("The Eleventh Amendment bars plaintiffs § 1983 suit against the New York State Division of Parole as it is a state agency.").
Claims Against Andrea Evans
Liability under § 1983 cannot be generally imposed on a supervisor, such as Andrea Evans, solely based upon her position as Chairwoman of the New York State Division of Parole. In Ashcroft v. Iqbal. the Supreme Court held that "[b]ecause vicarious liability is inapplicable to Bivens and 1983 suits, the plaintiff... must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." 129 S.Ct. 1938, 1940 (2009). Here, plaintiff fails to allege facts sufficient to support a claim that Andrea Evans' own actions make her liable under § 1983.
CONCLUSION
Accordingly, plaintiffs claims against the New York State Department of Corrections and Community Supervision and Andrea Evans are dismissed pursuant to 28 U.S.C. § 1915A (b) for failure to state a claim upon which relief may be granted. No summonses shall issue as to these defendants.
Plaintiffs remaining claims against Parole Officer F. Kelsick and Senior Parole Officer Senzamici shall proceed. The United States Marshals Service is directed to serve the summonses, complaint, and this Order upon the remaining defendants without prepayment of fees. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and therefore in forma pauperis status is denied for purpose of an appeal. Coppedee v. United States, 269 U.S. 438, 444-45 (1962).