Wallace v. New York State Department of Corrections and Community Supervision et al

Filing 6

MEMORANDUM & ORDER granting 3 Motion for Leave to Proceed in forma pauperis. SO ORDERED that plaintiffs claims against the New York State Dept of Corrections and Community Supervision and Andrea Evans are dismissed pursuant to 28 U.S.C. § 191 5A (b) for failure to state a claim upon which relief may be granted. No summonses shall issue as to these defts. Plaintiffs remaining claims against Parole Officer F. Kelsick and Senior Parole Officer Senzamici shall proceed. The United States Marsh als Service is directed to serve the summonses, complaint, and this Order upon the remaining defts 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. Party Andrea Evans (Chairwoman) and New York State Department of Corrections and Community Supervision terminated. CM to pro se plaintiff on 12/6/2011. Ordered by Judge Sandra J. Feuerstein on 12/6/2011. (Glueckert, Lisa)

J)/F
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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TROY CLAYTON WALLACE,
Plaintiff,

MEMORANDUM
AND ORDER
11-CV -5462 (SJF)

-v-

NEW YORK STATE DEPT. OF CORR. AND
COMMUNITY SUPERVISION; ANDREA EVANS,
Chairwoman; PAROLE OFFICER F. KELSICK;
SENIOR PAROLE OFFICER SENZAMICI,
Defendants.

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FILED
U

IN CLERK'S OFFJr.e

.S. DISTRICT COU~n

*

~.D.N.Y.

DEC 0 6 2011

*

LONG ISLAND OFFICE

FEUERSTEIN, United States District Judge:

Plaintiff Troy Clayton Wallace ("Plaintiff'), currently incarcerated at the Suffolk County
Correctional Facility, brings this prose 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 of7 Vincent Place, Oakdale, N.Y." without a warrant and
arrested him for an alleged parole violation. Complaint [Docket Entry No. 1] ("Compl.")

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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
The Court is mindful that plaintiff is proceeding pro ~ and that his submission should be
held "to less stringent standards than formal pleadings drafted by lawyers." Boykin v. KeyCorp,
521 F.3d 202,214 (2d Cir. 2008) (citation omitted). Under 28 U.S.C. § 1915A, a district court
"shall review, before docketing, if feasible or, in any event, as soon as practicable after
docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental
entity or employee of a governmental entity." 28 U.S.C. § 1915A. Upon review, a district court
shall dismiss a prisoner complaint sua sponte if the complaint is "frivolous, malicious, or fails to
state a claim upon which relief may be granted; or seeks monetary relief from a defendant who is
immune from such relief." Id.

DISCUSSION
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).

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As an agency or arm of the State ofNew 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. 11-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 ofNewYork, 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 ofthe New York State Division ofParole.
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 theN ew York State Department of Corrections
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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.
Coppedge v. United States, 269 U.S. 438,444-45 (1962).

SO ORDERED.

15(;/~ ).J~F.

-h'

Sandra J. Feu~rstem
United States District Judge

Dated:

Central Islip, New York
December 6, 2011

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