Riley v. Cuomo et al
Filing
19
MEMORANDUM OF DECISION & ORDER: For the reasons stated above, the Defendants; 15 motion to dismiss the complaint based on sovereign immunity is granted in its entirety. The Clerk of the Court is respectfully directed to close the case. SEE ATTACHED DECISION for details. It is SO ORDERED by Judge Arthur D. Spatt on 4/16/2018. (Coleman, Laurie)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------X
RUSSELL RILEY,
Plaintiff,
MEMORANDUM OF
DECISION & ORDER
2:17-cv-01631 (ADS)(AYS)
-againstANDREW CUOMO, in his official capacity as
governor of the State of New York, NEW YORK
STATE POLICE,
Defendant(s).
---------------------------------------------------------X
APPEARANCES:
Christopher Joseph Cassar
Attorney for the Plaintiff
13 East Carver Street
Huntington, NY 11743
By:
Christopher J. Cassar, Esq., Of Counsel
New York State Office of the Attorney General
Counsel for the Defendants
Nassau Regional Office
200 Old Country Road
Suite 240
Mineola, NY 11501
By:
Christina H. Bedell, Assistant Attorney General
SPATT, District Judge:
The Plaintiff Russel Riley (the “Plaintiff”) brought this federal civil rights action pursuant
to 42 U.S.C. § 1983 (“Section 1983”) against the Defendants Andrew Cuomo, in his official
capacity of the Governor of the State of New York (“Governor Cuomo,” the “Governor,” or
“Cuomo”) and the New York State Police (the “NYSP”) (collectively, the “Defendants”).
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Presently before the Court is a motion by the Defendants to dismiss the complaint
pursuant to Federal Rule of Civil Procedure (“FED. R. CIV. P.”) 12(b)(1) and 12(b)(6). For the
following reasons, the Defendants’ motion is granted in its entirety.
I. BACKGROUND
A. The Relevant Facts
The following facts are drawn from the Plaintiff’s complaint, and for the purposes of the
instant motion, are presumed to be true.
The Plaintiff owned and had a valid license for ten firearms. On January 9, 2017,
members of the NYSP entered the Plaintiff’s home without a warrant and seized ten firearms.
The firearms have not been returned to the Plaintiff, and there has been no hearing
regarding the seizure of the firearms.
The Plaintiff makes broad references to the New York Secure Ammunition and Firearms
Enforcement Act of 2013 (the “NY SAFE Act”), but does not explicitly state that his firearms
were confiscated as a result of that statute.
B. The Relevant Procedural History
On March 23, 2017, the Plaintiff filed his complaint. The complaint alleges that the NY
SAFE Act is unconstitutional under the Fourth and Fourteenth Amendments to the United States
Constitution in that it fails to provide gun owners who have had their firearms seized with a
hearing. However, the Plaintiff does not seek a declaratory judgment declaring that the NY
SAFE Act is unconstitutional. Furthermore, as stated above, he does not explicitly state that his
guns were seized because of that statute; or, if they were, how that statute caused his firearms to
be seized.
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The complaint alleges that the Plaintiff’s Fourth, Fifth, and Fourteenth Amendment rights
were violated when the Defendants seized his firearms without a warrant; failed to provide him
with a hearing; and illegally obtained statements from him. In those ways, the Defendants
allegedly violated Section 1983.
The Plaintiff seeks declaratory relief in the form of an order stating that the Defendants
violated his constitutional rights. He asks that the Court order that the firearms be returned to
him. Further, he seeks “a judgment . . . requiring the Defendants to conduct a prompt hearing
following the seizure of the property in all cases at which time the Defendants must demonstrate
probable cause for the seizure of the property and that it was necessary that the property remain
in the custody of the Defendants.” (Compl. Wherefore Clause ¶ 3).
The Plaintiff seeks injunctive and declaratory relief; and a judgment requiring the
Defendants to provide notice and a hearing to any future victims of seizures similar to the one
experienced by the Plaintiff.
The complaint does not explicitly seek damages, but only
reasonable attorneys’ fees and costs. While the Court notes that the Plaintiff’s memorandum in
opposition to the motion to dismiss states that “the underlying complaint is not exclusively
seeking an award of damages under § 1983,” (Pl.’s Mem. in Opp. to Mot. to Dismiss at 4), a
plaintiff is not permitted to amend his complaint by virtue of what is said in a memorandum of
law, Uddoh v. United Healthcare, 254 F. Supp. 3d 424, 429 (E.D.N.Y. 2017) (“A plaintiff,
however, is not permitted to interpose new factual allegations or a new legal theory in opposing a
motion to dismiss . . . .” (citing Wright v. Ernst & Young LLP, 152 F.3d 169, 178 (2d Cir.
1998))). The complaint does not explicitly seek damages, and the Court cannot construe it
otherwise.
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On September 25, 2017, the Defendants filed the instant motion to dismiss the complaint
for lack of jurisdiction pursuant to Rule 12(b)(1), and for failure to state a claim pursuant to Rule
12(b)(6).
II. DISCUSSION
A. As to the Defendants’ Motion to Dismiss Based on Sovereign Immunity
The Defendants have moved for dismissal based on sovereign immunity pursuant to Rule
12(b)(1).
As an initial matter, the Court first observes that within the Second Circuit, the question
of whether a motion to dismiss made on sovereign immunity grounds should be reviewed under
Rule 12(b)(1) or under Rule 12(b)(6) remains unresolved. See Carver v. Nassau Cty. Interim
Fin. Auth., 730 F.3d 150, 156 (2d Cir. 2013) (“[W]hether the claim of sovereign immunity
constitutes a true issue of subject matter jurisdiction or is more appropriately viewed as an
affirmative defense is an open question in the Supreme Court and the Second Circuit.” (citing
Wisc. Dep't of Corr. v. Schacht, 524 U.S. 381, 391, 118 S. Ct. 2047, 141 L. Ed. 2d 364 (1998)));
see also Garcia v. Paylock, 13–CV–2868 KAM, 2014 WL 298593, at *2 n.3 (E.D.N.Y. Jan. 28,
2014) (“It is an open question in the Second Circuit whether the claims of sovereign immunity
should be viewed as raising a question of subject matter jurisdiction, and thus be evaluated under
*339 Rule 12(b)(1), or as an affirmative defense analyzed under Rule 12(b)(6).”).
This “distinction is significant,” because “while [a district court] must accept all factual
allegations in a complaint as true when adjudicating a motion to dismiss under FED. R. CIV. P.
12(b)(6), . . . in adjudicating a motion to dismiss for lack of subject-matter jurisdiction [pursuant
to FED. R. CIV. P. 12(b)(1)], a district court may resolve disputed factual issues by reference to
evidence outside the pleadings, including affidavits.” State Employees Bargaining Agent Coal.
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v. Rowland, 494 F.3d 71, 77 (2d Cir. 2007) (internal citations omitted). As such, in accordance
with the approach taken by other district courts within this Circuit, the Court will apply the
stricter standard set under Rule 12(b)(6) while analyzing Defendants’ sovereign immunity
arguments. See Tiraco v. New York State Bd. of Elections, 963 F. Supp. 2d 184, 191 n.6
(E.D.N.Y. 2013) (noting that “[t]his distinction [] does not alter the outcome” of the case because
“the court [] considered only the pleadings and the relevant state and federal law and [drew] all
inferences in Plaintiff's favor”) (citations omitted); McMillan v. N.Y. State Bd. of Elections, No.
10–CV–2502 (JG)(VVP), 2010 WL 4065434, at *3 (E.D.N.Y. Oct. 15, 2010) (looking “only to
the pleadings and to state and federal law” to resolve questions regarding sovereign immunity).
1. The Rule 12(b)(6) Standard
In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept the
factual allegations set forth in the complaint as true and draw all reasonable inferences in favor
of the Plaintiff. See Walker v. Schult, 717 F.3d 119, 124 (2d Cir. 2013); Cleveland v. Caplaw
Enters., 448 F.3d 518, 521 (2d Cir. 2006); Bold Electric, Inc. v. City of New York, 53 F.3d 465,
469 (2d Cir. 1995); Reed v. Garden City Union Free School Dist., 987 F. Supp. 2d 260, 263
(E.D.N.Y. 2013).
Under the now well-established Twombly standard, a complaint should be dismissed only
if it does not contain enough allegations of fact to state a claim for relief that is “plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974, 167 L. Ed. 2d 929
(2007). The Second Circuit has explained that, after Twombly, the Court’s inquiry under Rule
12(b)(6) is guided by two principles:
First, although a court must accept as true all of the allegations contained in a
complaint, that tenet is inapplicable to legal conclusions, and [t]hreadbare recitals
of the elements of a cause of action, supported by mere conclusory statements, do
not suffice. Second, only a complaint that states a plausible claim for relief
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survives a motion to dismiss and [d]etermining whether a complaint states a
plausible claim for relief will . . . be a context-specific task that requires the
reviewing court to draw on its judicial experience and common sense.
Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 664,
129 S. Ct. 1937, 1940, 173 L. Ed. 2d 868 (2009)).
Thus, “[w]hen there are well-pleaded factual allegations, a court should assume their
veracity and . . . determine whether they plausibly give rise to an entitlement of
relief.” Iqbal, 556 U.S. at 679.
B. The Eleventh Amendment
The Eleventh Amendment provides that “[t]he Judicial power of the United States shall
not be construed to extend to any suit in law or equity, commenced or prosecuted against one of
the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”
Rowland, 494 F.3d at 95 (quoting U.S. CONST.
AMEND.
XI). The Eleventh Amendment bars
federal courts from exercising subject matter jurisdiction over claims against states absent their
consent to such a suit or an express statutory waiver of immunity. See Pennhurst State Sch. &
Hosp. v. Halderman, 465 U.S. 89, 90–100, 104 S. Ct. 900, 79 L. Ed. 2d 67 (1984); see also
Huminski v. Corsones, 386 F.3d 116, 133 (2d Cir. 2004). Although the plaintiff generally bears
the burden of proving subject matter jurisdiction, the entity claiming Eleventh Amendment
immunity bears the burden to prove such. See Woods v. Rondout Valley Cent. Sch. Dist. Bd. of
Educ., 466 F.3d 232, 237 (2d Cir. 2006).
Section 1983 imposes liability for “conduct which ‘subjects, or causes to be subjected’
the complainant to a deprivation of a right secured by the Constitution and laws.” Rizzo v.
Goode, 423 U.S. 362, 370–71, 96 S. Ct. 598, 46 L. Ed. 2d 561 (1976) (quoting 42 U.S.C. §
1983). It is well-settled that states are not “persons” under section 1983 and, therefore, Eleventh
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Amendment immunity is not abrogated by that statute. See Will v. Mich. Dep't of State Police,
491 U.S. 58, 71, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989).
1. Claims Against State Administrative Agencies
Regardless of the type of relief sought, the Eleventh Amendment bars this Court from
assuming jurisdiction over plaintiffs' claims asserted against the State of New York and its
agencies. When the state or one of its “arms” is the defendant, sovereign immunity bars federal
courts from entertaining lawsuits against them “regardless of the nature of the relief sought.”
Pennhurst, 465 U.S. at 100.
a. Application to the Plaintiff’s Claims Against the NYSP
As the Eleventh Amendment bars all suits against administrative agencies of a state, the
Plaintiff’s claims against the NYSP cannot be sustained. Defendant New York State Police is a
division in the executive department of New York—see section 210 of New York’s Executive
Law—and is therefore immune from all claims, both federal and state. Congress has not
overridden states’ sovereign immunity respecting constitutional claims brought under 42 U.S.C.
§ 1983. Will, 491 U.S. at 109. And it is well established that “New York State has not waived
its sovereign immunity from Section 1983 claims.”
Nolan v. Cuomo, No. 11 CV 5827
(DRH)(AKT), 2013 WL 168674, at *7 (E.D.N.Y. Jan. 16, 2013) (citing Trotman v. Palisades
Interstate Park Comm’n, 557 F.2d 35, 39–40 (2d Cir. 1977)); see also Mamot v. Bd. of Regents,
367 F. App’x 191, 192 (2d Cir. 2010) (summary order); Dube v. State Univ. of New York, 900
F.2d 587, 594–95 (2d Cir. 1990) (holding that the Eleventh Amendment precludes an action
under Section 1983 against SUNY, an integral part of the State of New York). Therefore, the
NYSP is entitled to sovereign immunity on the Plaintiff’s claims.
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Accordingly, the Defendants’ motion to dismiss the Plaintiff’s claims against the NYSP
is granted.
2. Claims Against State Officials in Their Official Capacity
A suit for damages against a state official in his or her official capacity “is deemed to be a
suit against the state, and the official is entitled to invoke the Eleventh Amendment immunity
belonging to the state.” Ying Jing Gan v. City of New York, 996 F.2d 522, 529 (2d Cir.1993); see
also Will, 491 U.S. at 71; Ford v. Reynolds, 316 F.3d 351, 354 (2d Cir. 2003). However, “the
applicability of the Eleventh Amendment bar [to suits against individuals in their official
capacities] depends on the form of relief sought.” Lee v. Dep’t of Children & Families, 939
F.Supp.2d 160, 165–66 (D. Conn. 2013).
Money damages cannot be recovered from state
officers sued in their official capacities. See e.g., Will, 491 U.S. at 71 (“[A] suit against a state
official in his or her official capacity is not a suit against an official but rather is a suit against the
official’s office.”); Edelman v. Jordan, 415 U.S. 651, 663, 94 S. Ct. 1347, 39 L. Ed. 2d 662
(1974) (“[A] suit by private parties seeking to impose a liability which must be paid from public
funds in the state treasury is barred by the Eleventh Amendment.”); Goonewardena v. New York,
475 F. Supp. 2d 310, 329 (S.D.N.Y. 2007) (“[S]overeign immunity also extends to bar claims for
monetary damages brought against state officers sued under section 1983 in their official
capacities.”).
Similarly, “judgments against state officers declaring that they violated federal law in the
past” are also not permitted. Puerto Rico Aqueduct and Sewer Auth. v. Metcalf & Eddy, 506 U.S.
139, 146, 113 S. Ct. 684, 121 L. Ed. 2d 605 (1993) (citing Green v. Mansour, 474 U.S. 64, 73,
106 S. Ct. 423, 88 L. Ed. 2d 371 (1985)). However, prospective injunctive relief is available
against individuals being sued in their official capacities in order to correct an ongoing violation
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of federal law. See Edelman, 415 U.S. at 663; Ex Parte Young, 209 U.S. 123, 28 S. Ct. 441, 52
L. Ed. 714 (1908). In this regard, through the doctrine of Ex Parte Young, a party may bring “a
suit for injunctive [or declaratory] relief challenging the constitutionality of a state official's
actions in enforcing state law.” CSX Transp., Inc. v. N.Y. State Office of Real Prop. Servs., 306
F.3d 87, 98 (2d Cir. 2002) (internal quotation marks and alteration omitted); see also Arthur v.
Nyquist, 573 F.2d 134, 138 (2d Cir. 1978).
In order to determine whether the Ex parte Young exception allows the Plaintiff to bring
suit against state officials, this Court must first determine whether the complaint alleges an
ongoing violation of federal law and second, whether the Plaintiff seeks relief properly
characterized as prospective. See Verizon Md., Inc. v. Pub. Serv. Comm'n of Md., 535 U.S. 635,
645, 122 S. Ct. 1753, 152 L. Ed. 2d 871 (2002). “[T]o successfully avoid the Eleventh
Amendment bar, a plaintiff must prove that a defendant's violation of federal law is of an
ongoing nature as opposed to a case ‘in which federal law has been violated at one time or
another over a period of time in the past.’ ” Papasan v. Allain, 478 U.S. 265, 277–78, 106 S. Ct.
2932, 92 L. Ed. 2d 209 (1986) (quotation omitted). The inquiry for determining whether an
“ongoing violation” exists is, “does the enforcement of the law amount to a continuous violation
of plaintiffs constitutional rights or a single act that continues to have negative consequences for
plaintiffs.” New Jersey Educ. Ass'n v. New Jersey, No. 11–5024, 2012 WL 715284, at *4 (D.N.J.
Mar. 5, 2012).
Furthermore, when a plaintiff seeks prospective relief against a state official in their
official capacity where the plaintiff alleges that a particular statute is unconstitutional, “the state
officer . . . ‘must have some connection with the enforcement of the act’” that includes “both a
particular duty to enforce the statute in question and a demonstrated willingness to exercise that
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duty.” Kelly v. New York State Civil Serv. Comm’n, No. 14 CV 716 VB, 2015 WL 861744, at *3
(S.D.N.Y. Jan. 26, 2015) (quoting Ex Parte Young, 209 U.S. at 157), aff’d sub nom. Kelly v. New
York Civil Serv. Comm’n, 632 F. App’x 17 (2d Cir. 2016); see also CSX Transp., 306 F.3d at 99
(amenability to suit under Eleventh Amendment requires “both the power and the duty” to take
challenged action).
a. Application to the Plaintiff’s Claims Against Governor Cuomo in His
Official Capacity
As stated above, the complaint does not explicitly seek damages. However, even if it did,
the Plaintiff would be unable to seek that relief against Governor Cuomo in his official capacity.
Ying Jing Gan, 996 F.2d at 529 (“To the extent that a state official is sued for damages in his
official capacity, such a suit is deemed to be a suit against the state, and the official is entitled to
invoke the Eleventh Amendment immunity belonging to the state.” (internal citations omitted)).
As to his requests for declaratory and injunctive relief, the Court finds that the Plaintiff
does not explicitly seek prospective relief. Instead, he seeks a declaration that the Defendants
violated federal law in the past, and a return of his firearms. Courts have held that neither of
these types of relief are prospective. See Puerto Rico Aqueduct and Sewer, 506 U.S. at 146
(stating that “judgments against state officers declaring that they violated federal law in the past”
are not permitted under the Ex Parte Young doctrine); Dotson v. Griesa, 398 F.3d 156, 177 n.16
(2d Cir. 2005) (holding that Second Circuit precedent “preclude[s] a federal court from ordering
affirmative action by either the state or federal government employees in their official
capacities”); Nat’l R.R. Passenger Corp. v. McDonald, 978 F. Supp. 2d 215, 233 (S.D.N.Y.
2013) (“[C]ourts in this Circuit have [held] . . . that the return of property taken by the state is
barred by the Eleventh Amendment because that constitutes ‘retrospective’ relief.” (collecting
cases)), aff’d, 779 F.3d 97 (2d Cir. 2015); Dean v. Abrams, No. 94 CIV. 3704 (LAK), 1995 WL
10
791966, at *2 n.5 (S.D.N.Y. Dec. 26, 1995) (“The only exception to the Eleventh Amendment’s
protection is for ‘prospective injunctive relief,’ but Dean's demand for . . . the return of her
property does not qualify for this exception.” (collecting cases)).
While the Plaintiff does ask for an order declaring that the Defendants must afford any
future victims of such seizures a prompt and fair hearing, the Plaintiff has not plead sufficient
facts to demonstrate that he has standing to request such relief. See Friends of the Earth, Inc. v.
Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 185, 120 S. Ct. 693, 706, 145 L. Ed. 2d 610
(2000) (“[A] plaintiff must demonstrate standing separately for each form of relief sought.”)
“In seeking prospective relief like an injunction, a plaintiff must show that he can
reasonably expect to encounter the same injury again in the future—otherwise there is no
remedial benefit that he can derive from such judicial decree.”
MacIssac v. Town of
Poughkeepsie, 770 F. Supp. 2d 587, 593 (S.D.N.Y. 2011) (citing City of Los Angeles v. Lyons,
461 U.S. 95, 103 S. Ct. 1660, 75 L. Ed. 2d 675 (1983)). A plaintiff cannot seek injunctive relief
merely for past injury. O'Shea, 414 U.S. at 495–96, 94 S. Ct. 669; Deshawn E. by Charlotte E.
v. Safir, 156 F.3d 340, 344 (2d Cir. 1998). Instead, “the injury alleged must be capable of being
redressed through injunctive relief ‘at that moment.’ ” Robidoux v. Celani, 987 F.2d 931, 938 (2d
Cir. 1993) (quoting Cty. of Riverside v. McLaughlin, 500 U.S. 44, 51, 111 S. Ct. 1661, 114
L. Ed. 2d 49 (1991)).
Here, the Plaintiff does not allege that his guns will again be seized in the future. Indeed,
as stated above, the Plaintiff did not state why his guns were seized. He does not plead sufficient
facts to demonstrate standing to seek an order forcing the state to afford any future victims of
seizures a prompt and fair hearing because he has not alleged that he will be a victim of such a
seizure in the future.
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Therefore, the Plaintiff does not seek prospective relief for an ongoing violation of
federal law, and cannot avail himself of the Ex Parte Young doctrine.
Governor Cuomo
therefore has sovereign immunity with regard to the Plaintiff’s claims.
The Plaintiff contends that he should be permitted to proceed on his theory of supervisory
liability until he is able, through discovery, to determine which subordinate officials should be
added to the complaint. This argument is completely unavailing.
First, “[a] defendant’s supervisory authority is insufficient in itself to demonstrate
liability under § 1983.” LaMagna v. Brown, 474 F. App’x 788, 789 (2d Cir.2012) (citing
Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003)); Richardson, 347 F.3d at 435 (“[M]ere
linkage in the prison chain of command is insufficient to implicate a state commissioner of
corrections or a prison superintendent in a § 1983 claim.” (citations and internal quotation marks
omitted)). Instead, “to establish a defendant’s individual liability in a suit brought under § 1983,
a plaintiff must show, inter alia, the defendant's personal involvement in the alleged
constitutional deprivation.” Grullon v. City of New Haven, 720 F.3d 133, 138 (2d Cir. 2013)
(collecting cases). As the Second Circuit has stated, a supervisory defendant’s personal
involvement can be shown by evidence that:
(1) the defendant participated directly in the alleged constitutional violation, (2)
the defendant, after being informed of the violation through a report or appeal,
failed to remedy the wrong, (3) the defendant created a policy or custom under
which unconstitutional practices occurred, or allowed the continuance of such a
policy or custom, (4) the defendant was grossly negligent in supervising
subordinates who committed the wrongful acts, or (5) the defendant exhibited
deliberate indifference to the rights of [the plaintiff] by failing to act on
information indicating that unconstitutional acts were occurring.
Id. at 139 (emphasis omitted) (quoting Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995)).
Accordingly, “supervisory liability may be imposed when an official has actual or
constructive notice of unconstitutional practices and demonstrates ‘gross negligence’ or
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‘deliberate indifference’ by failing to act.” Meriwether v. Coughlin, 879 F.2d 1037, 1048 (2d
Cir. 1989) (quoting McCann v. Coughlin, 698 F.2d 112, 125 (2d Cir. 1983)). The Plaintiff does
not allege that any of the above factual circumstances are present here.
Second, the Plaintiff does not even allege that the Governor supervises the NYSP.
Indeed, the complaint does not contain any allegations that are specific to Governor Cuomo.
Furthermore, as to the Plaintiff’s argument that he should be permitted to maintain suit
against Governor Cuomo until he has been afforded an opportunity to identify subordinate
officials who have personal liability, the Plaintiff does not meet that “exception” to the
supervisory liability rule here. The case cited by the Plaintiff for this very proposition held
“[p]ermitting plaintiffs to use discovery as a fishing expedition undermines the principle that
only portions of a complaint which satisfy a plausibility standard, i.e., more than possible and
less than probable, should unlock the doors of discovery.” Dudek v. Nassau Cty. Sheriff's Dep’t,
991 F. Supp. 2d 402, 414 (E.D.N.Y. 2013) (internal citations and quotation marks omitted).
The Dudek court relied on the fact that the complaint failed to contain a single factual
allegation that any of the supervisory defendant’s subordinates were personally involved in the
action. Here too, the Plaintiff does not allege that Governor Cuomo supervises members of the
NYSP, nor does he allege any specific acts by any individual John Doe officers of the NYSP.
Nor would the Plaintiff be permitted to avail himself of the exception allowing discovery to go
forward where a litigant raises colorable claims against supervisors because that exception only
applies to pro se litigants. See Davis v. Kelly, 160 F.3d 917, 922 (2d Cir. 1998) (“We therefore
hold that when a pro se plaintiff brings a colorable claim against supervisory personnel, and
those supervisory personnel respond with a dispositive motion grounded in the plaintiff's failure
to identify the individuals who were personally involved, under circumstances in which the
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plaintiff would not be expected to have that knowledge, dismissal should not occur without an
opportunity for additional discovery.”); Soto v. Brooklyn Corr. Facility, 80 F.3d 34, 34 (2d Cir.
1996) (holding that where a pro se litigant mistakenly failed to name the individual corrections
officers who might be liable, the pro se plaintiff would be afforded opportunity to amend his
complaint after discovery); Satchell v. Dilworth, 745 F.2d 781, 785 (2d Cir. 1984) (same).
Finally, the Plaintiff is also unable to bring claims against Governor Cuomo based on his
allegation that the NY SAFE Act is unconstitutional. The Court notes again that the Plaintiff
does not seek an order stating that the NY SAFE Act is unconstitutional. He instead alleges that
it is unconstitutional, and seeks an order requiring the Defendants to afford victims of gun
seizures fair hearings.
In any event, the Plaintiff has not alleged that the Governor has any duty to enforce the
NY SAFE Act. Nor does N.Y. PENAL LAW § 400, the only specific statute cited by the Plaintiff,
afford any duty or power to the Governor. To the extent that the Plaintiff relies on the fact that
the NY SAFE Act was signed by Governor Cuomo, which the Court notes that he did not allege,
“[t]he well-settled doctrine of absolute legislative immunity . . . bars actions against legislators or
governors . . . on the basis of their roles in enacting or signing legislation.” Warden v. Pataki, 35
F.Supp.2d 354, 358 (S.D.N.Y.1999), aff'd sub nom. Chan v. Pataki, 201 F.3d 430 (2d Cir. 1999).
Furthermore, “the vast majority of courts . . . have held . . . that a state official’s duty to execute
the laws is not enough by itself to make that official a proper party in a suit challenging a state
statute.” Warden, 35 F. Supp. 2d at 359.
Therefore, the Plaintiff has failed to allege that Governor Cuomo has the power or duty to
take action regarding the NY SAFE Act, and the Governor has sovereign immunity over those
claims.
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Accordingly, the Defendants’ motion to dismiss the Plaintiff’s claims against Governor
Cuomo is granted.
III. CONCLUSION
For the reasons stated above, the Defendants’ motion to dismiss the complaint based on
sovereign immunity is granted in its entirety. The Clerk of the Court is respectfully directed to
close the case.
It is SO ORDERED:
Dated: Central Islip, New York
April 16, 2018
__/s/ Arthur D. Spatt_____
ARTHUR D. SPATT
United States District Judge
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