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Haywood v. Drown, PLN amicus brief, USSC, Right to Sue Prison Employees in State Court, 2008

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No. 07-10374

In the Supreme Court of the United States
KEITH HAYWOOD,

Petitioner,

v.
CURTIS DROWN, ET AL.

Respondents.

On Writ of Certiorari
To the New York Court of Appeals
BRIEF AMICUS CURIAE OF PRISONERS’ LEGAL
SERVICES OF NEW YORK, PRISONERS RIGHTS
PROJECT, NEW YORK STATE DEFENDERS
ASSOCIATION, CENTER FOR COMMUNITY
ALTERNATIVES, PRISON LEGAL NEWS,
UPTOWN PEOPLE’S LAW CENTER, JEROME N.
FRANK, LEGAL SERVICES ORGANIZTAION OF
YALE LAW SCHOOL, AND CIVIL RIGHTS CLINIC
OF NEW YORK UNIVERSITY SCHOOL OF LAW
IN SUPPORT OF PETITIONER

Of Counsel
Karen Murtagh-Monks*
Betsy Hutchings
Prisoners’ Legal Services
of New York
114 Prospect Street
Ithaca, New York 14850
(518) 483-4621

John Boston
Prisoners Rights Project
The Legal Aid Society
199 Water Street
New York, NY 10038
(212) 577-3300

*Counsel of Record

TABLE OF CONTENTS
Page
INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . .1
SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . .5
APPLICABLE STATUTES AND LAW . . . . . . . . . .10
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
I. CORRECTION LAW §24, AS APPLIED
TO ACTIONS UNDER 42 U.S.C. §1983,
VIOLATES THE SUPREMACY
CLAUSE BECAUSE IT CONTRAVENES THE PLAIN LANGUAGE OF
THE STATUTE . . . . . . . . . . . . . . . . . . . . . .12
II.

CORRECTION LAW §24 AS APPLIED TO
ACTIONS UNER 42 U.S.C. §1983 IS NOT
SUPPORTED BY A VALID EXCUSE OR
NEUTRAL REASON . . . . . . . . . . . . . . . . . . .14
A. Defendants’ Excuse is Not Valid . . . . . . .18
i. New York State Enacted
Correction Law §24 Because It
Disagreed With Congress . . . . . . . . . .18

i

ii. Correction Law §24 Discriminates
Against §1983 Claims In Favor
Of Analogous State and Federal
Claims . . . . . . . . . . . . . . . . . . . . . . . . .19
iii. Correction Law §24 Does Not
Implement a Neutral State
Rule of Judicial Administration . . . .24
iv. Defendants’ Rationale For
Correction Law §24 Does Not
Square With Its Practical Effect. . . . .25

III. CORRECTION LAW §24 BURDENS
THE LITIGATION OF §1983 CLAIMS
BY A SUBCLASS OF CIVIL RIGHTS
VICTIMS BY LIMITING THE
REMEDIES AVAILABLE IN STATE
COURT, CREATING PROCEDURAL
HURDLES AND DENYING A
CHOICE OF FORUM . . . . . . . . . . . . . . . . . .27
A.

The Availability of the Court of
Claims Does Nothing to Lessen the
Burden on the Litigation of the
Underlying Federal Claim. . . . . . . . .35

ii

IV. CORRECTION LAW §24 UNDERMINES
FIRMLY ESTABLISHED PRINCIPLES
OF FEDERALISM . . . . . . . . . . . . . . . . . . . . .38
V.

THE CLEAR INTENT OF CORRECTION
LAW §24 IS TO IMMUNIZE NEW YORK
STATE DOCS EMPLOYEES. . . . . . . . . . . . .41

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . .43

iii

TABLE OF AUTHORITIES
Page
CASES

Allen v. McCurry,
449 U.S. 90 (1980) . . . . . . . . . . . . . . . . . . . . 33
Barone v. City of Mount Vernon,
170 A.D.2d 557 (2dDep’t 1991) . . . . . . . . . . .37
Brown v. State of New York,
89 N.Y.2d 172 (1996) . . . . . . . . . . . . . . . .22, 29

Bouffard v. Lewis,

139 Misc. 2d 786 (Sup. Ct. Alb. Co. 1988). . .31

Bure v. Miami-Dade Police Dept.,

2008 WL 2374149 (S.D.Fla.,
June 6, 2008) . . . . . . . . . . . . . . . . . . . . . . . . .34

Carey v. Piphus,

435 U.S. 247 (1978) . . . . . . . . . . . . . . . . . . . . 5
Cavanaugh v. Doherty,
243 A.D.2d 92 (1998) . . . . . . . . . . . . . . . . . . .30

Cepeda v. Coughlin,

128 A.D.2d 995 (3d Dep’t 1987) . . . . . . . . . .31

Claflin v. Houseman,

93 U.S. 130 (1876) . . . . . . . . . . . . . . . . . . . . .12

Crawford v. Kershaw County DSS,

2007 WL 2934887 (D.S.C.,
Oct. 5, 2007) . . . . . . . . . . . . . . . . . . . . . . . . . .34

Matter of Council 82, AFSCME, AFL-CIO on
Behalf of Montgomery v. New York State
Department of Correctional Services,

223 A.D.2d 993 (3d Dep’t 1996) . . . . . . . . . .16

iv

De LaRosa v. State of New York,
173 Misc.2d 1007 (1997) . . . . . . . . . . . . . . . . 22

De Vivo v. Groshjean,

48 A.D.2d 158 (3d Dep’t 1975). . . . . . . . . . . . 21

Douglas v. New York N.H. & H.R. Co.,

279 U.S. 377 . . . . . . . . . . . . . . . . . . . . . . . . . .24

Egling v. Lombardo,

181 Misc. 108 (N.Y. City Court, 1943) . . . . .22
Farley v. Town of Hamburg,
34 A.D.3d 1294 (4th Dep’t 2006) . . . . . . . . . . 21
Felder v. Casey,
487 U.S. 131 (1988) . . . . .12, 13, 27, 28, 29, 30
Ferrick v. State of New York,
198 A.D.2d 822 (1993) . . . . . . . . . . . . . . . . . .22
Gattis v. Fuller,
2007 WL 2156697 (D.S.C., July 26, 2007). . 34

Gore v. Khulman,

217 A.D.2d 890 (3d Dep’t 1995) . . . . . . . . . .26
Grant v. Sotelo,
1998 WL 740826 (N.D.Tex.,
Oct. 17, 1998) . . . . . . . . . . . . . . . . . . . . . . . . .34

Hairston v. Metro-North Commuter Railroad,

259 A.D.2d 370 (1st Dep’t 1999) . . . . . . . . . .22
Hampton v. Chicago,
484 F.2d 602 (7th Cir. 1973) . . . . . . . . . . . . .42
Hampton v. Hobbs,
106 F.3d 1285 (6th Cir. Ohio 1997) . . . . . . . .35
Harvey v. Brandt,
254 A.D.2d 718 (4th Dep’t 1998) . . . . . . . . . .21

v

Haywood v. Drown,
9 N.Y.3d 481 (2007) . . . . . . . . . . . .19, 29,41,42

Herb v. Pitcarin,

324 U.S. 117 (1945) . . . . . . . . . . . . . . . . . . .24

Howlett v. Rose,

496 U.S. 356 (1990) . . . . . . . . . . . . . . . .passim

Kagen v. Kagen,

21 N.Y.2d 532 (1968) . . . . . . . . . . . . 12, 14, 24
Lucas v. Scully,
71 N.Y.2d 399 (1988) . . . . . . . . . . . . . . . . . . .16
Maine v. Thiboutot,
448 U.S. 1 (1980) . . . . . . . . . . . . . . . . 12, 33, 41
Martinez v. California,
444 U.S. 277 (1980). . . . . . . . .12, 13, 20, 33, 41
McCummings v. New York City Transit Authority,
177 A.D.2d 24 (1st Dep’t 1992) . . . . . . . . . . . .21
McKnett v. St. Louis & San Francisco Ry. Co.,
292 U.S. 230 (1934) . . . . . . . . . . . . . . . . passim

Meadows v. Flemings, Inc.,

290 A.D.2d 386 (1st Dep’t 2002) . . . . . . . . . .22

Mondou v. New York, N.H. & H.R. Co.,

223 U.S. 1 (1912). . . . . . . . . . . . . 13, 16, 17, 18

Monell v. Department of Social Services of
City of New York,

436 U.S. 658 (1978) . . . . . . . . . . . . . . . . . . . 10
Monroe v. Pape,
365 U.S. 167 (1961) . . . . . . . . . . . . . . . . . . . . 33
Muhammad v. Close,
540 U.S. 749 (2004) . . . . . . . . . . . . . . . . . . . .34

Murray v. Reif,

36 A.D.3d 1167 (3d Dep’t 2007) . . . . . . . . . .31

vi

Neitzke v. Williams,
490 U.S. 319 (1989) . . . . .. . . . . . . . . . . . . . . .34
Nelson v. Town of Glenville,
220 A.D.2d 955 (3d Dep’t 1995) . . . . . . . . . . .21
Ott v. Barash,
109 A.D.2d 254 (2d Dep’t 1985) . . . . . . . . . . .20

Patsy v. Board of Regents of Florida,

457 U.S. 496, 506-07 (1982) . . . . .. . . . . . . . .35
People v. Luce,
204 N.Y. 478 (1912) . . . . . . . . . . . . . . . . . . .14
Preiser v. Rodriguez,
411 U.S. 475 (1973) . . . . . . . . . . . . . . . . . . . .34
Prior v. County of Saratoga,
245 A.D.2d 658 (3d Dep’t 1977) . . . . . . . . . .21

Riviello v. Waldron,

47 N.Y.2d 297 (1979) . . . . . . . . . . . . . . . . . . .31

Robb v. Connolly,

111 U.S. 624 (1884) . . . . . . . . . . . . . . . . . . . .40
Safran v. State of New York,
2006-018-553, Claim Nos. 112556,
112611, Motion No. M-72239 . . . . . . . . . . . . 22

Sands v. Weingrad,

99 Misc. 2d 598 (Sup. Ct. N.Y. Co. 1979) . . .22

State of Mo. ex. rel. Southern Ry. Co.
v. Mayfield,

340 U.S. 1 (1950) . . . . . . . . . . . . . . . . . . . . . .24

Tafflin v. Levitt,

493 U.S. 455 (1990) . . . . . . . . . . . . . . . . . . . .40
Testa v. Katt,
330 U.S. 386 (1947) . . . . . . . . . . . . . . . .passim

vii

U.S. Bulk Carriers v. Arguelles,
400 U.S. 351 (1971) . . . . . . . . . . . . . . . . . . . . 33
Vasbinder v. Scott,
976 F.2d 118 (2d Cir. 1992) . . . . . . . . . . . . .37
Vega v. Department of Correctional Services,
186 A.D.2d 340 (3d Dep’t 1992). . . . . . . . . . .16
Matter of Williams v. Coughlin,
145 A.D.2d 771 (1988) . . . . . . . . . . . . . . . . . .16

Wells v. Caskey,

2006 WL 2805338 (S.D.Miss.,
Sept. 25, 2006) . . . . . . . . . . . . . . . . . . . . . . . .34
Wilkinson v. Dotson,
544 U.S. 74 (2005) . . . . . . . . . . . . . . . . . . . . .34

Wilson v. Yaklich,

148 F.3d 596 (6th Cir. Ohio 1998) . . . . . . . . .34

Woodward v. State,

23 A.D.3d 852 (3d Dep’t 2005) . . . . . . . . 26, 30

Wyatt v. Cole,

504 U.S. 158 (1992) . . . . . . . . . . . . . . . . . . . . .5

Zagarella v. State of New York,

149 A.D.2d 503 (1989) . . . . . . . . . . . . . . . . . .22
CONSTITUTIONAL AND STATUTORY
PROVISIONS
United States Constitution, art. VI, cl. 2 . . . . passim
28 United States Code §1915 (g), Prison
Litigation Reform Act of 1995 . . . . . . . . . . . . . . . .34
42 United States Code §1983 . . . . . . . . . . . . . passim
42 United States Code §1988(b) . . . . . . . . . . . . . . .37

viii

New York Correction Law §24 . . . . . . . . . . . . passim
New York Court of Claims
Act §12(3) and §27 . . . . . . . . . . . . . . . . . . . . . . . .38
New York Civil Practice Laws and
Rules 1101(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 27
New York Civil Practice Laws and Rules (CPLR)
Section 215 . . . . . . . . . . . . . . . . . . . . . . . . . .21
TREATISES AND LAW REVIEW ARTICLES
Gerry, Brett Christopher, Parity Revisited,

An Empirical Comparison of State
and Lower Federal Court Interpretations of Nollan v. California Coastal
Commission, Harvard Journal of Law

Public Policy (1999) . . . . . . . . . . . . . . . . . . . . . . 39
Greenberg, Dunleavy, and Kutner, (2007),

Literacy Behind Bars: Results From the
National Assessment of Adult Literacy
Prison Survey (NCES 2007-473). U.S.

Department of Education, Washington,
DC, National Center for Education
Statistics, . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Hamilton, A., The Federalist,
No. 82, p. 555 (J. Cooke ed. 1961). . . . . . . . . . . . 39
Novikov, Eugene, Stacking the Deck: Futility

and the Exhaustion Provision of the Prison
Litigation Reform Act,Univ. of

Pennsylvania Law Review (2008) . . . . . . . . . . .27

ix

Scalia, John, Prisoner Petitions Filed in U.S.

District Courts, 2000, with Trends
1980-2000, Bureau of Justice Statistics:
Special Report, Bureau of Justice

Statistics, (U.S. Dep’t of Justice, Wash.
D.C.) (Jan. 2002) . . . . . . . . . . . . . . . . . . . . . .
27
Schlanger, Margo, Inmate Litigation,
116 Harv. L. Rev. 1555, 1610 n. 161 (2003). . . . 32
Steinglass, Steven H., The Sword & Shield: A
Practical Approach to Section 1983 Litigation . . .23
Steinglass, Steven H., Section 1983 Litigation
in State Courts, Ch. 15:15 n. 23 (Thomson
West 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . .6, 23

x

INTEREST OF AMICI CURIAE1
Prisoners’ Legal Services of New York (PLS), a
not-for-profit organization providing civil legal
services to indigent inmates in New York State
prisons, has been providing legal assistance to
inmates for thirty-two years. PLS receives over
10,000 requests for assistance annually and serves
as legal counsel to inmates on a variety of claims in
the state and federal courts, including claims of
excessive force, deliberate indifference and violations
of due process. There are approximately 62,000
individuals in New York State prisons. PLS has a
significant interest in ensuring that they have the
same opportunity as other individuals in New York
State to have their claims of constitutional wrongs
adjudicated by the state courts.
The Legal Aid Society, a private, non-profit
organization, has provided free legal assistance to
indigent persons in New York City for over 125
years. Through its Prisoners’ Rights Project, the
Society seeks to ensure that prisoners’ legal rights
are fully protected. The Society advocates on behalf
of prisoners in New York state prisons and New
York City jails, and where necessary, conducts class
1

The parties’ letter of consent to the filing of this brief has been
lodged with the Clerk. Under Rule 37.6 of the Rules of the
Court, amicus curiae states that no counsel for a party has
written this brief in whole or in part and that no person or
entity, other than amicus curiae, has made a monetary
contribution to the preparation and submission of the brief.

1

action litigation relating to prison conditions and
mistreatment of, and violence against, prisoners.
The New York State Defenders Association
(NYSDA) is a not-for-profit membership association
of more than 1,500 public defenders, legal aid
attorneys, 18-B counsel, private practitioners and
others throughout the state. NYSDA operates the
Public Defense Backup Center, offering legal
consultation, research, and training to more than
5,000 lawyers who serve as public defense counsel in
criminal cases in New York. Many of the clients of
the public defense attorneys that are supported by
NYSDA have been sentenced to incarceration in
state prison. These individuals should have recourse
to litigate federal civil rights claims in state
Supreme Court when they have been victimized in
prison.
Claudia Angelos is Professor of Clinical Law
at New York University School of Law and Director
of the law school's Civil Rights Clinic. Together with
students who act as attorneys under her supervision,
she has litigated dozens of civil rights cases
involving misconduct by New York State correction
officers. She teaches in the area of prisoners’ rights.
The Center for Community Alternatives
(―CCA‖) is a private, non-for-profit organization that
promotes reintegrative justice and a reduced
reliance on incarceration through advocacy, services,
and public policy development in the pursuit of civil
and human rights. Many CCA clients are facing

2

potential prison sentences, have been imprisoned, or
are currently incarcerated in New York State
prisons. Much of CCA’s work focuses on helping
individuals successfully reintegrate into the
community after incarceration, and there is no
question that the conditions of an individual’s
confinement are a factor that informs the
individual’s ability to successfully reintegrate. As an
organization that works with those who have been
incarcerated, CCA has an interest in ensuring that
such individuals have a full opportunity to vindicate
– in state or federal court – any violations of their
civil rights that occurred while in prison.
The Uptown People’s Law Center (―UPLC‖) is
a not-for-profit legal services center serving poor and
working people in Chicago, Illinois. In addition to its
legal work for community residents, UPLC
represents prisoners in challenges to prison
conditions, the parole system, and a variety of other
matters. UPLC receives over 5,000 requests for
representation every year, and has one of the largest
dockets of prison cases in Illinois. UPLC files cases,
and provides advice to prisoners litigating their own
cases, in both federal and state courts. UPLC has a
vital interest in ensuring that state courts remain
available to prisoners seeking to challenge the
unlawful conduct of prison officials.
At the Jerome N. Frank Legal Services
Organization of the Yale Law School (LSO), law
students supervised by law school faculty provide
free representation to indigent people in need of

3

legal aid. Since 1970, LSO students have provided
legal assistance to persons incarcerated in state and
federal prisons in Connecticut and occasionally in
New York. Yale students have represented inmates
in federal and state courts and before administrative
agencies, in a range of proceedings including habeas
and civil rights actions. The outcome of this case will
potentially affect the remedies available to all
inmates who seek help in the future from LSO.
Prison Legal News (―PLN‖) is a non-profit,
charitable corporation that publishes a nationally
distributed monthly journal of the same name that
reports on news, recent court decisions, and other
developments relating to the civil and human rights
of prisoners in the United States and abroad. PLN
has approximately 6,800 subscribers in all fifty
states and abroad and eight times as many readers.
PLN also advocates that prisoner victims of civil
rights violations be able to vindicate their human
and civil rights in the civil justice system.
Each of the amici represents or advocates on
behalf of prisoners who have been victims of civil
rights violations and seek relief in state courts. All
share a concern that upholding the Haywood
decision will result in a continued curtailment of the
civil rights of New York state prisoners and the
likelihood that New York and other states will enact
similar statutes to limit the ability of other civil
rights victims across the county to obtain redress for
deprivations of their constitutional rights.

4

SUMMARY OF THE ARGUMENT
The Civil Rights Act of 1871, now known as
42 U.S.C. §1983, (hereinafter §1983), was enacted
―to deter state actors from using the badge of their
authority to deprive individuals of their federally
guaranteed rights and to provide relief to victims if
such deterrence fails.‖ Wyatt v. Cole, 504 U.S. 158,
161 (1992), citing Carey v. Piphus, 435 U.S. 247,
254-257 (1978). Though it was prompted by the
abuses suffered by former slaves at the hands of
many persons, including law enforcement officials,
the statute was framed in the most general terms,
protecting any person in the United States against
deprivation of federal rights by any person acting
under color of state law.
The Supremacy Clause of Article VI of the
Constitution mandates that state courts are bound
by the laws of the United States. States have
concurrent jurisdiction over §1983 claims. Where a
state creates courts of general jurisdiction that are
competent to hear and decide state claims similar
to those claims that arise under §1983, the state
courts cannot refuse to exercise jurisdiction over the
federal §1983 claims unless the state has a neutral
and valid reason for doing so. There have only been
three circumstances in which state courts have
been allowed to refuse to exercise jurisdiction over
federal causes of action. None of those

5

circumstances, or any circumstances that are even
remotely analogous, are present in this case.
Every state in the United States, including
New York, exercises jurisdiction over §1983 actions.
Steven H. Steinglass, Section 1983 Litigation in
State Courts, Appendix E (Thomson West 2007).
New York however, creates an exception for §1983
actions brought by individual civil rights victims
who have been subjected to abuses by employees of
the New York State Department of Correctional
Services (DOCS). New York State’s Correction Law
§24 prohibits this subcategory of civil rights victims
from seeking damages in state court for wrongs done
to them by DOCS employees, contrary to § 1983’s
plain command that ―[e]very person‖ who violates
federal rights under color of state law shall be held
liable in an action at law or otherwise.
The defendants assert that Correction Law
§24 is a neutral jurisdictional rule supported by a
valid state interest, to wit: ―[T]o ensure that
corrections employees, when acting within the
scope of their employment, are not inhibited in
performing their difficult duties by the threat of
voluminous, vexatious and often meritless prisoner
suits against them for damages.‖ Defendants’ Court
of Appeals Brief pp. 11-12. The New York State
Court of Appeals (Court of Appeals), with three of
seven justices dissenting, found this proffered
reason represented a valid state interest and
upheld the constitutionality of Correction Law §24.

6

The defendants’ rationale is inconsistent with
Supremacy Clause considerations. In enacting
§1983, Congress was clearly aware that the law
would allow those who had been victimized an
opportunity to vindicate their rights in court. In
passing §1983, Congress determined that the
importance of providing a mechanism for civil rights
victims, including any person deprived of a federal
right, to seek redress against any person acting
under color of state law, outweighed any possible
negative impact that such a law might have on any
category of defendants. This Court has stated many
times that states may not refuse to follow federal law
because they disagree with it. Immunizing a class of
§1983 defendants from suit in a state’s courts is
precisely the kind of ―end run‖ around federal law
that the Supremacy Clause prohibits.
Correction Law §24 discriminates against the
litigation of a federal claim in state court. New York
courts have jurisdiction over similar types of state
and federal claims against similarly situated
individuals and therefore have adequate and
appropriate jurisdiction to decide §1983 claims
against prison employees.
Correction Law §24 is not a neutral rule of
judicial administration because it favors one class of
New York citizens, DOCS employees, over another,
all other citizens. Although this Court has never
held that states must entertain 42 U.S.C. §1983
actions, and it need not decide that issue here, it
has held that allowing states to pick and choose

7

which state actors should be subject to §1983
liability effectively undermines the very purpose for
which the statute was enacted. Howlett v. Rose, 496
U.S. 356, 372 (1990).
Correction Law §24 is illogical in that its
actual effect does not square with its rationale. As a
matter of logic, DOCS employees can be, and often
are, named as defendants in §1983 actions in federal
court. DOCS employees are no more inhibited from
performing their duties by the threat of a state court
§1983 than by one filed in federal court. Thus,
excluding civil rights actions against DOCS
employees from state court does not prevent the
supposed harm identified by the state. Moreover,
legislation such as the Prison Litigation Reform Act
of 1995 (PLRA), and Civil Practice Laws and Rules
1101(f)—both passed to restrict and discourage
meritless litigation by prisoners—has significantly
reduced the number of filings of prisoner lawsuits
across the country and in New York without
contravening federal statutory rights.
Correction Law §24 impermissibly burdens a
federal right by prohibiting the litigation of §1983
damage claims in state courts against a select group
of state employees, creating procedural hurdles for
victims of civil rights violations by DOCS personnel
that are not present for other civil rights victims,
denying those victims a choice of forum and, in some
cases, denying those victims access to the courts.
Correction Law §24 also burdens a federal right by
denying a subcategory of civil rights victims in New

8

York State the same benefits provided other civil
rights victims who chose to litigate their §1983
claims in state court such as the right to a jury trial,
the right to a compensatory damage award against
the offending individual, the right to punitive
damages and the right to attorneys fees.
Correction Law §24 undermines firmly
established principles of federalism. If the lower
court’s decision is upheld it will pave the way for
New York State and other states to deprive other
unpopular groups of their right to pursue civil rights
claims in state courts, thereby 1) shifting the burden
of entertaining such claims to the federal courts, 2)
excluding state courts from their proper role in
adjudicating federal constitutional law issues, and 3)
depriving certain civil rights victims of the
opportunity to litigate their claims before local
judges and juries.
Correction Law §24 is not a jurisdiction
limiting statute but an immunity granting statute.
This immunity extends to all DOCS employees,
whether the plaintiff is a prisoner alleging that
prison officials were deliberately indifferent to
serious medical needs, a DOCS employee alleging
that his supervisor discriminated against him, or a
citizen alleging that he was subject to an
unreasonable search and seizure during a prison
visit. While the state Court of Claims is available to
prisoners seeking compensation for state tort
violations, that court does not have jurisdiction over
individual prison employees, does not have

9

jurisdiction to award damages against prison
employees, does not have the ability to award
punitive damages, does not allow the claimant a jury
trial, and does not have jurisdiction over claims
alleging violations of federal constitutional rights.
Correction Law §24 thus effectively grants prison
employees absolute immunity from suits for
damages in any state court in New York.
Just as in Howlett, whether Correction Law
§24 is viewed as a pre-emptive immunity granting
statute or, as asserted by defendants, an attempt to
limit the state courts’ jurisdiction, New York’s
refusal to entertain one discrete category of §1983
claims, when state courts hear similar state-law
actions and similar federal actions, violates the
Supremacy Clause. Howlett, 496 U.S. at 375.
APPLICABLE STATUTES AND LAW
Forty-two U.S.C. §1983 provides a remedy for
individuals who have been deprived of their civil
rights by persons acting under color of state law.

Monell v. Department of Social Services of City of
New York, 436 U.S. 658 (1978). It states:
Every person who, under color of
any statute, ordinance, regulation,
custom, or usage, of any State or
Territory or the District of Columbia,
subjects, or causes to be subjected, any
citizen of the United States or other
person within the jurisdiction thereof to

10

the
deprivation
of
any
rights,
privileges, or immunities secured by
the Constitution and laws, shall be
liable to the party injured in an action
at law, suit in equity, or other proper
proceeding for redress. . . .
Article VI, clause 2 of the Constitution, the
Supremacy Clause, states:
This Constitution, and the Laws
of the United States which shall be
made in Pursuance thereof; and all
Treaties made, or which shall be made,
under the Authority of the United
States, shall be the supreme Law of the
Land; and the Judges in every State
shall be bound thereby, any Thing in
the Constitution or Laws of any State
to the Contrary notwithstanding.
New York Correction Law §24 provides in
pertinent part that:
1. No civil action shall be
brought in any court of the state . . .
against any officer or employee of
[DOCS], 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

11

discharge of the duties by such officer
or employee.
2. Any [such] claim . . . shall be
brought and maintained in the court of
claims as a claim against the state.
ARGUMENT
I.

CORRECTION LAW §24, AS
APPLIED TO ACTIONS UNDER 42
U.S.C. §1983, VIOLATES
THE
SUPREMACY CLAUSE BECAUSE
IT CONTRAVENES THE PLAIN
LANGUAGE OF THE STATUTE.

New York State Supreme Courts are courts of
general jurisdiction and therefore have jurisdiction
over federal law claims in general and §1983 claims
in particular. Kagen v. Kagen, 21 N.Y.2d 532 (1968).
See also Howlett v. Rose, 496 U.S. 356 (1990), citing
Claflin, 93 U.S. 130, 136-137; Maine v. Thiboutot,
448 U.S. 1 (1980); Martinez v. State of California,
444 U.S. 277 (1980). When a state court entertains a
federal law claim, it must entertain the whole of the
relevant federal law; it cannot pick and choose
among aspects of federal law, or substitute state
policies that are inconsistent with the relevant
federal policies. See Felder v. Casey, 487 U.S. 131
(1988). See also Howlett v. Rose, 496 U.S. 356
(1990). Thus, in Felder, this Court held that
applying a state law notice of claim requirement to a
§1983 claim violated the Supremacy Clause because

12

there is no such requirement in §1983 itself. Id., 487
U.S. at 131. Indeed, this Court has generally refused
to uphold state administrative or purported
jurisdictional bars to §1983 filings where the policy
underlying the state law requirement was contrary
to that of §1983. See Felder, 487 U.S. 131. See also
Martinez, 444 U.S. 277; Howlett, 496 U.S. 356;
Mondou v. New York, N.H & H.R. Co., 223 U.S. 1
(1912); McKnett v. St. Louis & San Francisco Ry.
Co., 292 U.S. 230, 234 (1934); Testa v. Katz, 330 U.S.
386, 394 (1947).
In Martinez, in the context of discussing
recognized federal defenses to a §1983 action, the
Court held that a state law immunity could not be
applied to protect defendants who might well have
been liable under § 1983 in the context of the
recognized federal defenses to a § 1983 action.
Martinez, 444 U.S. at 283. In Howlett, the Court
held that the state’s refusal to allow plaintiffs to
bring §1983 suits against an entity that was,
pursuant to §1983, a proper defendant, violated the
Supremacy Clause. Howlett, 496 U.S. at 375.
The result can be no different in this case.
Section 1983 unequivocally imposes liability on
―[e]very person‖ who subjects another to a violation
of federal rights under color of state law. Section
1983 does not exempt prison employees, and to the
extent that there are reasons prison employees
might appropriately be excused from liability in
some cases, those reasons are addressed in the suite
of federal immunities and other defenses recognized

13

by this Court. When a state court with jurisdiction
over §1983 claims fails to effectuate that federal
statute—here, by extending liability only to ―some
persons‖ and not ―every person‖ acting under color of
state law—it directly contravenes federal law. For
that reason, Correction Law §24, as applied by the
court below, cannot stand.
II.

CORRECTION
LAW
§24
AS APPLIED TO ACTIONS
UNDER 42 U.S.C. §1983 IS NOT
SUPPORTED
BY
A
VALID
EXCUSE OR NEUTRAL REASON.

As noted above, in New York State the
Supreme Courts are courts of general jurisdiction,
and that jurisdiction is ―original, unlimited and
unqualified.‖ Kagen, 21 N.Y.2d at 537 (internal
citations omitted.) Indeed, the jurisdiction and
purpose of New York’s Supreme Courts is so
comprehensive
that
it
encompasses
every
conceivable cause of action. People v. Luce, 204 N.Y.
478, 487-88 (1912).2 Despite this, state courts may
sometimes decline to take jurisdiction of federal
claims based on a valid excuse or neutral reason.
Howlett, 496 U.S. at 372, 381.
This Court has rejected Supremacy Clause
challenges to state court rules limiting jurisdiction
over federal claims only in limited situations. State
2

McKinney’s Const., Article VI, §7.

14

policies pertaining to forum non conveniens, the
jurisdiction of state courts of limited jurisdiction,
and access to state courts by nonresidents provide
the only three instances in which this Court has
found that the state had a valid excuse or neutral
rationale for refusing to hear a federal cause of
action. Howlett, 496 U.S. at 381. No such neutral
reason has been asserted by the defendants as their
rationale for the enactment of Correction Law §24.
This Court’s case law confirms that there is no valid
excuse or neutral reason justifying New York’s
exclusion from its courts of §1983 actions against a
particular category of defendants.
Here, the defendants assert that Correction
Law §24 is a proper subject matter limitation on the
jurisdiction of the state Supreme Courts. Merely
labeling a rule jurisdictional does not divest a state
of its obligation to enforce federal law. Testa v. Katz,
330 U.S. 386, 394 (1947). In order not to offend the
Supremacy Clause, the rule must address ―concerns
of power over the person and competence over the
subject matter.‖ Howlett, 496 U.S. at 381. Neither of
these concerns is implicated by Correction Law §24.
There is no question that state courts can exercise
power over state employees, and there is no issue of
competence since the state courts do entertain §1983
claims against DOCS employees for injunctive relief,
and also routinely engage in judicial review of

15

disciplinary and other administrative actions by
prison administrators.3
This Court has examined a number of statutes
that states have argued were valid restrictions on
the jurisdiction of the state courts. Repeatedly, this
Court has rejected the reasons proffered by the state
for refusing jurisdiction.
In Mondou v. New York, N.H & H.R. Co., 223
U.S. 1 (1912), the state of Connecticut refused to
hear Federal Employees Liability Act (FELA) actions
because it believed that the Act was ―not in accord
with the policy of the State,‖ and that applying
federal law was ―inconvenient and confusing.‖
Rejecting Connecticut’s rationale, this Court found
that a state’s disagreement with Congressional
policy is an insufficient reason to refuse jurisdiction
See Matter of Council 82, AFSCME, AFL-CIO on Behalf of
Montgomery v. New York State Department of Correctional
Services, 223 A.D.2d 993 (3d Dep’t 1996) (Court refused to
3

vacate arbitration award against correction officer on charges
of excessive force); Vega v. Department of Correctional
Services, 186 A.D.2d 340 (3d Dep’t 1992) (Court found DOCS
was authorized to discharge former female corrections officer
based on her covert and unauthorized conduct in developing
close relationship with her future husband while he was inmate
and parolee.); Lucas v. Scully, 71 N.Y.2d 399 (1988) (Court
found DOCS regulations did not unconstitutionally abridged
inmates right of freedom of expression); Matter of Williams v.
Coughlin, 145 A.D.2d 771 (1988) (Court found the
constitutional right to call witnesses at a disciplinary hearing
can not be waived unless it is shown that the inmate was
informed of the existence of that right).

16

over a federal cause of action. Mondou, 223 U.S. at
55-56. Where the relevant state court is one of
general jurisdiction and has the ability to hear and
resolve similar type claims between similarly
situated parties, the state court is required to
exercise jurisdiction over the federal action. Id. see
also Howlett, 496 U.S. at 357.
Nor does refusing jurisdiction solely upon the
―source of law‖ constitute a valid excuse or a neutral
reason. McKnett v. St. Louis & San Francisco Ry.
Co., 292 U.S. 230, 234 (1934) In McKnett, an
Alabama state court refused to hear a FELA action
because it held that a state statute giving Alabama
state courts jurisdiction over suits arising under the
laws of another state could not be extended to
include causes of action arising in other states under
federal law. Id. The Court stated: ―While Congress
has not attempted to compel states to provide courts
for the enforcement of the Federal Employers'
Liability Act the Federal Constitution prohibits state
courts of general jurisdiction from refusing to do so
solely because the suit is brought under a federal
law.‖ The McKnett Court held that Alabama’s policy
―constituted discrimination against rights arising
under Federal Law,‖ Howlett, 496 U.S. at 373, citing
McKnett, 292 U.S. at 234, because Alabama courts,
as courts of general jurisdiction, had jurisdiction
over similar types of actions involving similarly
situated litigants.
Finally, when Rhode Island refused to
exercise jurisdiction over a case involving the federal

17

Emergency Price Control Act, because it deemed the
statute penal in nature, this Court once again found
that since Rhode Island courts enforced the ―same
type of claim‖ under state law and similar types of
claims under other Federal statutes, they had
adequate and appropriate jurisdiction to adjudicate
the federal claim. Testa v. Katz, 330 U.S. 386, 394
(1947).
A.

Defendants’ Excuse is Not Valid.

New
York
State
Enacted
Correction Law §24 Because It
Disagreed With Congress.
i.

Correction Law §24 should be struck down
because defendants have failed to set forth either a
―valid excuse‖ or a neutral rule of judicial
administration for refusing to hear this subset of
§1983 cases. Howlett, 496 U.S. at 380. Defendants
assert that Correction Law §24 was enacted to
prevent corrections officers from being subjected to
vexatious, frivolous or voluminous law suits. That
is, as in Mondou, defendants disagree with the
availability of certain damage awards under federal
law. In Mondou, the Court held that states cannot
decline to enforce federal law because they consider
it out of line with state policies. 223 U.S. at 55-56.
Here, the application of Mondou’s reasoning to the
defendants’ rationale leads to the same result.

18

In commenting on the Florida rule at issue in

Howlett this Court stated: ―To the extent that the
Florida rule is based upon the judgment that parties
who are otherwise subject to the jurisdiction of the
court should not be held liable for activity that would
not subject them to liability under state law, we
understand that to be only another way of saying
that the court disagrees with the content of federal
law.‖ Howlett, 496 U.S. at 379. A state policy that
permits §1983 actions against some state employees
for constitutional torts, but prohibits jurisdiction
over other state employees for the same actions, ―can
be based only on the rationale that such persons
should not be held liable for §1983 violations in the
courts of the State.‖ Id. at 380. That result is
precisely what Howlett and the Supremacy Clause
forbid.

ii. Correction Law §24 Discriminates
Against §1983 Claims in Favor of
Analogous State and Federal Claims.
The lower court in this case held: ―New York
does not discriminate against §1983 actions in favor
of analogous state law claims because Correction
Law §24 removes subject matter jurisdiction over
any cause of action—state or federal—for money
damages in state Supreme Court for conduct by
DOCS employees.‖ Haywood v. Drown, 9 N.Y.3d 481,
490 (2007). In so holding, the lower court interpreted
McKnett as standing for the proposition that it is

19

permissible for states to refuse jurisdiction over a
federal claim as long as they refuse jurisdiction over
the exact same state claim against the exact same
defendant. Such an interpretation is an ill-conceived
attempt by the lower court to severely limit the
purpose and effect of the Supremacy Clause and
inconsistent with this Court’s decisions in McKnett,
292 U.S. 230 and Testa, 330 U.S. 386.
In McKnett, the Court held that since the
Alabama state courts had jurisdiction over similarly
situated litigants and the same types of claims as
those at issue in the McKnett case, the state court
could not refuse to exercise jurisdiction solely
because suit was brought under federal law.
McKnett, 292 U.S. at 232-234. In Testa, the Court
noted that since Rhode Island courts had jurisdiction
to hear similar claims arising under Rhode Island
law and claims for double damages arising out of the
Fair Labor Standards Act, they had ―adequate and
appropriate jurisdiction‖ to hear a claim arising
under the federal Emergency Price Control Act.
Testa, 330 U.S. at 394. Thus, if the same type of
claim ―arising under state law, would be enforced in
the state courts, the state courts are generally not
free to refuse enforcement of the federal claim.‖
Martinez, 444 U.S. at 283-284 n. 7.
The Supreme Courts in New York State
exercise jurisdiction over: 1) the same type of state
claims as were raised in this case,4 2) the same type
4

Ott v. Barash, 109 A.D.2d 254 (2d Dep’t 1985) (plaintiff

20

of §1983 damage actions that were raised in this
case against other state employees,5 and 3) claims

allowed to pursue action against state employee tort-feasor for
negligence and intentional tort in the Supreme Court ―even
where the employee’s tortious conduct was committed in the
course of his employment‖). De Vivo v. Groshjean, 48 A.D.2d
158 (3d Dep’t 1975) (New York State indemnity statute does
not deprive an injured plaintiff of his right to bring a cause of
action against a negligent state officer or employee in state
court). See also Civil Practice Laws and Rules (CPLR) Section
215 setting forth statute of limitations for intentional torts
such as assault and battery.
5

In New York State, an individual subjected to excessive use of
force by a New York State employee, other than a DOCS
employee, can file a lawsuit in supreme court for damages and
can have his claim decided by a jury. Prior v. County of
Saratoga, 245 A.D.2d 658 (3d Dep’t 1977) (arrestee found to be
prevailing party in state court action filed in supreme court
alleging battery and civil rights claims against county for
excessive use of force by officers in sheriff’s department); see
also McCummings v. New York City Transit Authority, 177
A.D.2d 24 (1st Dep’t 1992) (jury awarded robbery suspect over
$4.3 million after determining officer used excessive force);
Harvey v. Brandt, 254 A.D.2d 718 (4th Dep’t 1998) (arrestee
filed §1983 action against police officer in supreme court,
alleging excessive force); Farley v. Town of Hamburg, 34 A.D.3d
1294 (4th Dep’t 2006) (plaintiff filed wrongful death action
against police officer alleging assault and battery, negligence
and violation of constitutional and civil rights); Nelson v. Town
of Glenville, 220 A.D.2d 955 (3d Dep’t 1995) (plaintiff, father of
minor, sued town and individual police officers alleging false
arrest and assault and battery).

21

arising under other similar federal statutes.6 The
New York Court of Claims exercises jurisdiction over
cognate state claims.7 See Testa, 330 U.S. at 394.
As demonstrated above, Correction Law §24
prohibits state courts from adjudicating a subset of
§1983 claims while analogous state law claims are
litigated in the Court of Claims and generically
similar state law claims and §1983 claims against
other state employees are regularly litigated in the
state Supreme Courts. See Testa, 330 U.S. 386.
Thus, New York has done exactly what Howlett and
Testa forbid: ―refus[ed] to entertain one discrete
category of §1983 claims, when the court entertains
similar state-law actions against state defendants,‖
6

New York Courts have exercised jurisdiction over a multitude
of federal statutes including, the American with Disabilities
Act (ADA), Meadows v. Flemings, Inc., 290 A.D. 2d 386, 387 (1st
Dep’t 2002); the Federal Employees Liability Act, (FELA),
Hairston v. Metro-North Commuter Railroad, 259 A.D.2d 370
(1st Dep’t 1999); the Emergency Price Control Act, Egling v.
Lombardo, 181 Misc. 108 (N.Y. City Court, 1943); and the
Internal Revenue Code, Sands v. Weingrad, 99 Misc. 2d 598
(Sup. Ct. N.Y. Co. 1979).
7

The New York Court of Claims exercises jurisdiction over
state tort claims, including state constitutional claims, see e.g.,
Brown v. State of New York, 89 N.Y.2d 172, 185 (1996), but
―lack[s] jurisdiction to impose damages for a violation of the
Federal Constitution.‖ Safran v. State of New York, 2006-018553, Claim Nos. 112556, 112611, Motion No. M-72239, citing
Zagarella v. State of New York, 149 A.D.2d 503(1989); Ferrick
v. State of New York, 198 A.D.2d 822 (1993); De LaRosa v.
State of New York, 173 Misc. 2d 1007 (1997).

22

Howlett, 496 U.S. at 372, and other similar federal
law actions, Testa, 330 U.S. at 394.8 New York
Supreme Courts ―[are] fully competent to provide the
remedies the federal statute requires.‖ Howlett, 496
U.S. at 378. By failing to provide a forum in state
court for this limited category of federal claims, New
York discriminates against §1983 claims brought
against DOCS employees thereby violating the
dictates of Howlett.

In commenting on the application of Howlett to New York’s
Correction Law §24, Professor Steven Steinglass writes: ―The
most flagrant example of a state court system selectively
excluding §1983 cases is the refusal of New York courts to
entertain §1983 actions against state correctional officials. . . .
The Supreme Court’s decision in Howlett overrides New York
policy of precluding suits against correctional officers. The state
policy is based on a substantive judgment that the state, as
contrasted to state employees, should be liable for certain
wrongful acts; but this state policy is not a neutral rule of
judicial administration. Moreover, the willingness of New York
to entertain other §1983 suits against other state employees,
implicates the suggestion in Howlett that a state that opens its
courts to some §1983 suits may not bar other §1983 suits.‖
Steven H. Steinglass, "An Introduction to State Court Section
1983 Litigation," p. 153, in Sword and Shield: A Practical
Approach to Section 1983 Litigation (3d ed. ABA 2006); see
also, Steven H. Steinglass, Section 1983 Litigation in State
Courts, Ch. 15:15 n. 23 (Thomson West 2007).
8

23

iii.
Correction Law §24 Does Not
Implement a Neutral State Rule of
Judicial Administration.
This Court has held that ―[a] valid excuse may
exist when a state court refuses jurisdiction because
of a neutral state rule of judicial administration.‖
Howlett, 496 U.S. at 357 citing Douglas v. New York
N.H. & H.R. Co., 279 U.S. 377, 387-389. A state acts
neutrally in adopting rules of judicial administration
if the rule does not discriminate between citizens of
a state, Douglas at 387, if the rule limits the
jurisdiction of certain state courts, Herb v. Pitcarin,
324 U.S. 117 (1945), or if the rule is one of forum non
conveniens showing a preference for residents over
non-residents, State of Mo. ex. rel. Southern Ry. Co.
v. Mayfield, 340 U.S. 1 (1950).
This is not a case involving state courts of
limited jurisdiction. Kagen, 21 N.Y.2d at 537. Nor is
this a case involving the rule of forum non
conveniens. This is a case where the statute at issue,
Correction Law §24, discriminates between citizens
of the state. Correction Law §24 does not seek to
ensure that all New York State employees can do
their jobs without fear of ―vexatious or voluminous‖
lawsuits, it seeks only to protect DOCS employees
from lawsuits for damages. Exempting one group of
state employees from damage lawsuits in state court
is not a neutral state rule of judicial administration
but rather an attempt by the state to substitute its
judgment for that of Congress as to which of its

24

residents should be subjected to a federal statute.
This is not a valid excuse. Howlett, 496 U.S. at 372.
Defendants’ assertion that the purpose of
Correction Law §24 is to prevent meritless lawsuits
against prison guards is also strikingly similar to the
rationale asserted by the amici curiae in Howlett, a
rationale that this Court summarily rejected:
The argument by amici that suits
predicated on federal law are more
likely to be frivolous and have less of an
entitlement to the State's limited
judicial resources warrants little
response. A State may adopt neutral
procedural rules to discourage frivolous
litigation of all kinds, as long as those
rules are not pre-empted by a valid
federal law. A State may not, however,
relieve congestion in its courts by
declaring a whole category of federal
claims to be frivolous.

Howlett, 496 U.S. at 380.
iv. Defendants’ Rationale For Correction
Law §24 Does Not Square With Its
Practical Effect.
Defendants argue that the rationale for
Correction Law §24 is to permit correction officers to
perform their jobs better by relieving them of the
need to defend and appear as witnesses in lawsuits.

25

Notwithstanding Correction Law §24, correction
officers can be sued and called as witnesses in
federal court and in state court injunctive actions,
and can be called as witnesses in state court actions
filed in the Court of Claims. Thus, prohibiting the
filing of a §1983 action in state court does nothing to
limit a correction officer’s exposure to lawsuits and
does nothing to assist correction officers in their job
performance.
Moreover, although the asserted rationale for
the statute is to protect correction officers from suits
by prisoners, the statute itself has a much broader
effect—it prevents the filing of any damage claim
against any DOCS employee. Thus, in Gore v.
Kuhlman, 217 A.D.2d 890 (3d Dep’t 1995), a DOCS
employee’s action against a Superintendent and
Deputy Superintendent for harassment was held to
be prohibited by Correction Law §24. And in
Woodward v. State, 23 A.D. 3d 852 (3d Dep’t 2005),
when Mr. Woodward, a corrections counselor
employed by DOCS, attempted to sue various DOCS
employees for violations of his constitutional rights,
his lawsuit was also dismissed pursuant to
Correction Law §24. Neither Mr. Gore nor Mr.
Woodward were inmates, but both were prevented
from suing their supervisors because of Correction
Law §24. Thus, another of the defendants’ asserted
rationales for the statute, to attempt to prevent
―meritless prisoner suits‖ against corrections officers
for damages so that they are better able to perform
their jobs, does not have that effect (because of the

26

availability of the federal courts) and also has the
effect of preventing suits by correctional employees
or members of the general public against other
agency personnel.9
III.

CORRECTION LAW §24 BURDENS THE
LITIGATION OF §1983 CLAIMS BY A
SUBCLASS OF CIVIL RIGHTS VICTIMS BY
LIMITING THE REMEDIES AVAILBLE IN
STATE COURT, CREATING PROCEDURAL
HURDLES AND DENYING A CHOICE OF
FORUM.

In Felder v. Casey, 487 U.S. 131 (1988), this
Court struck down a Wisconsin Notice of Claim
9

Even if this Court were to accept defendants’ purported
rationale for the enactment of Correction Law §24, the passage
of the Prisoner Litigation Reform Act of 1995 and the
equivalent New York State legislation, see CPLR 1101 (f),
undercut the need for the purported protection offered by
Correction Law §24. These federal and state legislative efforts
to reduce prisoner litigation have been shown to be effective.
Between 1995 and 2000, prisoner lawsuits decreased by 39%.
Eugene Novikov, Stacking The Deck: Futility and The

Exhaustion Provision of the Prison Litigation Reform Act,

University of Pennsylvania Law Review (2008). John Scalia,

Prisoner Petitions Filed in U.S. District Courts, 2000, with
Trends 1980-2000, Bureau of Justice Statistics: Special Report
(Bureau of Justice Statistics, U.S. Dep't of Justice, Wash.
D.C.),
Jan.
2002,
at
1,
available
at
http://www.ojp.usdoj.gov/bjs/pub/pdf/ppfusd00.pdf .

27

statute as preempted by federal civil rights actions.
The Court found that ―the application of the notice
requirement burdens the exercise of the federal right
by forcing civil rights victims who seek redress in
state courts to comply with a requirement that is
entirely absent from civil rights litigation in federal
courts,‖ and concluded that such a burden ―is
inconsistent in both design and effect with the
compensatory aims of the federal civil rights laws.‖
487 U.S. at 141.
In analyzing whether a state rule limiting the
enforcement in state court of a federal right is
permissible, the Court focused on whether the rule
was the natural or permissible consequence of an
otherwise neutral, uniformly applicable state rule. In
finding that it was not, the Felder Court concluded
that the notice of claim rule was ―imposed only upon
a specific class of plaintiffs—those who sue
governmental defendants—and, as we have seen, is
firmly rooted in policies very much related to, and to
a large extent directly contrary to, the substantive
cause of action provided those plaintiffs.‖ Felder, 487
U.S. at 145. Such a ―burdening of a federal right,‖
held the Court, could not stand. Id. In striking down
the notice-of-claim requirement, the Supreme Court
identified core principles of federalism:
Congress entitled those deprived
of their civil rights to recover full
compensation from the governmental
officials
responsible
for
those
deprivations. A state law that

28

conditions that right of recovery upon
compliance with a rule designed to
minimize governmental liability, and
that directs injured persons to seek
redress in the first instance from the
very targets of the federal legislation,
is inconsistent in both purpose and
effect with the remedial objectives of
the federal civil rights law. Principles
of federalism, as well as the Supremacy
Clause, dictate that such a state law
must give way to vindication of the
federal right when that right is
asserted in state court.
Felder, 487 U.S. at 153.
Correction Law §24 has a much more
pervasive effect on the federal rights of a certain
litigants—those who sue DOCS employees for money
damages—than did the notice of claim requirement
held impermissible in Felder. Correction Law §24, as
it has been interpreted and applied by the courts,
completely bars individuals—be they prisoners,
other DOCS employees, or civilians—whose civil
rights have been violated by DOCS employees, from
bringing §1983 claims for damages against those
employees in state court when the employees’ actions
were within the scope of their employment.
Haywood, 9 N.Y.3d 481 (2007). Nor can those same
victims bring a §1983 action in the Court of Claims
because the state—the prescribed defendant in all
Court of Claims actions—is not a person within the

29

meaning of the statute, see Brown v. State of New
York, 89 N.Y.2d 172, 185 (1996), and because the
Court of Claims will not entertain a federal claim.10
Cavanaugh v. Doherty, 243 A.D.2d 92 (1998)
(holding that the state Supreme Court, not the Court
of Claims is the proper forum for an action under 42
U.S.C. §1983).
Correction Law §24 burdens the litigation of a
federal claim by requiring that a subcategory of civil
rights victims overcome procedural hurdles to the
litigation of their claims11 and contend with the
ambiguous notion of determining whether the
10

Even if the conduct of DOCS employees could be the subject

of a §1983 in the Court of Claims, the notice of claim
requirements, which significantly shorten the limitations
period for cases filed in the Court of Claims, would violate the
Supreme Court’s decision in Felder v. Casey, 487 U.S. 131
(1988).
11

To obtain from the state courts the full relief to which any
other victim of a civil rights violation is entitled, the victim of a
civil rights violation by DOCS personnel must bring two suits
in two different courts. To recover damages, he or she must sue
in the Court of Claims, and to obtain injunctive or similar
relief, the victim must bring a separate Article 78 proceeding or
a state court §1983 proceeding. As the dissent in Woodward
pointed out, ―[n]ot only does this suggestion waste judicial
resources, it demonstrates that Correction Law §24 indeed
frustrates the purpose of the federal laws and burdens litigants'
rights of recovery by creating obstacles to bringing such actions
in state courts and requiring two separate actions in two
different jurisdictions to obtain full recovery.‖ Woodward, 23
A.D.3d at 857.

30

actionable conduct was within the ―scope of
employment‖12 rather than relying on the
straightforward
and
more
inclusive
§1983
requirement that the defendant’s conduct be ―under
color of state law.‖ 13
12

Correction Law §24 prohibits any civil action for damages
against a DOCS employee if the conduct at issue was within
the scope of employment. If a DOCS employee has engaged in
actions outside of the scope of his employment, Correction Law
§24 does not apply. Determining what actions constitute
conduct ―within the scope of employment‖ under Correction
Law §24 is no easy task. Indeed, New York courts have had
extreme difficulty coming to a consensus as to what type of
conduct is ―within the scope of employment‖ under Correction
Law §24. Compare e.g., Cepeda, 128 A.D.2d 995 (3d Dep’t 1987)
(noting that the Court of Appeals in Riviello v. Waldron, 47
N.Y.2d 297 (1979) ―instructed that an employee will be
considered within the scope of his employment so long as he is
discharging his duties, 'no matter how irregularly, or with what
disregard of instructions,' ‖ and finding that excessive use of
force claim was within scope of employment); with Murray v.
Reif, 36 A.D. 3d 1167 (3d Dep’t 2007) (questioning the lower
court’s finding that the allegation that the defendant guard
―assaulted plaintiff, threatened him, read his legal mail
without permission, and importuned others not to feed plaintiff
while he was in special housing‖ was clearly within scope of
employment) and Bouffard v. Lewis, 139 Misc. 2d 786 (Sup. Ct.
Alb. Co. 1988) (Kahn, J.) (holding that the allegation of
excessive use of force was ―certainly beyond the bounds of any
recognized limits of employment.‖)
13

There may be instances where the determination of whether
conduct is under ―color of law‖ is not so straightforward, but
they are not likely to involve actions by correctional staff on the
job.

31

These burdens are especially difficult for
prisoners, the most likely plaintiffs in §1983 actions
against DOCS employees, who usually lack the
benefit of counsel and are more likely than the nonprison population to have limited literacy and
reading comprehension.14 Correction Law §24
burdens the litigation of federal claims by forcing
uncounseled and often, uneducated, civil rights
victims, to decide where they should file their case
by guessing what actions a court might determine
fall within the scope of employment, and where they
guess wrong, risk having their claims dismissed.
Correction Law §24 burdens the litigation of a
federal claim by denying a subclass of civil rights
victims a choice of forum to which other civil rights
14

According to a national survey "[o]nly about a third of
inmates are sufficiently literate to "make literal or synonymous
matches between the text and information given in the [text],
or to make . . . low-level inferences." Margo Schlanger, Inmate
Litigation, 116 Harv. L. Rev. 1555, 1610 n. 161 (2003), citing

Nat’l Ctr. for Educ. Statistics, Pub. No. 1994-102, LITERACY
BEHIND PRISON WALLS 19 tbl.2.3 (Oct. 1994), available at
http://nces.ed.gov/pubs94/94102.pdf (setting out literacy scores
and defining the assessed levels of competence); for updated
research, see, Greenberg, E., Dunleavy, E., and Kutner, M.
(2007), Literacy Behind Bars: Results From the 2003 National
Assessment of Adult Literacy Prison Survey (NCES 2007-473).
U.S.
Department
of
Education.
Washington,
DC:
National
Center
for
Education
Statistics,
at
http://nces.ed.gov/pubs2007/2007473.pdf, site last visited
7/10/07.

32

victims are entitled. State and federal courts have
concurrent jurisdiction over §1983 claims. Allen v.
McCurry, 449 U.S. 90, 99 (1980), citing Monroe v.
Pape, 365 U.S. 167, 183 (1961); see also Thiboutot,
448 U.S. 1; Martinez, 444 U.S. 277. Concurrent
jurisdiction affords litigants a choice of forum, which
―inevitably affects the scope of the substantive right
to be vindicated before the chosen forum.‖ U.S. Bulk
Carriers v. Arguelles, 400 U.S 351, 359-360 (1971).
The choice of forum is based on considerations such
as the composition of the respective jury pools, the
plaintiff’s geographic location, the cost of litigation,
including filing fees, the complexities of the
applicable rules of civil procedure, access to counsel,
and similar considerations.
Most civil rights plaintiffs have a choice of
forum and can file their actions in either state or
federal court. The victim of a DOCS employee who
seeks to litigate his entire civil rights claim in one
court and to receive all the relief available under
§1983 in one action, however, can file his or her
action only in federal court.
In some cases, Correction Law §24 not only
burdens the litigation of a federal right but also can
result in a complete denial of access to the courts.
The three strikes provision of the Prison Litigation
Reform Act (PLRA), 28 U.S.C. Section 1915(g),
prohibits a prisoner from proceeding in forma
pauperis in federal court unless the prisoner is
―under imminent danger of serious physical injury‖
when the prisoner has brought three or more actions

33

in federal court that have been dismissed because
they were frivolous, malicious or failed to state a
cause of action.15 Id. In upholding the provision’s
constitutionality, at least one court has relied in part
on the availability of state courts to hear federal
claims. In Wilson v. Yaklich, 148 F.3d 596, 605 (6th
Cir. Ohio 1998), the court held as follows:
Both as written and as applied in this
case, § 1915(g) does not infringe upon
the fundamental right of access to the
15

Although the word "frivolous" tends to suggest cases that are
irresponsibly motivated, its actual meaning is without ―an
arguable basis either in law or in fact." Neitzke v. Williams,
490 U.S. 319, 325 (1989). Many cases are dismissed as
frivolous, and thus are treated as "strikes" under 28 U.S.C. Sec
1915(g), which amount to mistakes of law concerning technical
doctrines by often unsophisticated litigants proceeding without
counsel. For example, cases are routinely treated as strikes
where prisoners have mistaken the line between the domain of
Sec 1983 and that of habeas corpus. See Bure v. Miami-Dade

Police Dept., 2008 WL 2374149 at *3 (S.D.Fla., June 6, 2008);

Crawford v. Kershaw County DSS, 2007 WL 2934887 at *5
(D.S.C., Oct. 5, 2007); Gattis v. Fuller, 2007 WL 2156697 at *2
(D.S.C., July 26, 2007); Wells v. Caskey, 2006 WL 2805338 at
*2 (S.D.Miss., Sept. 25, 2006); Grant v. Sotelo, 1998 WL 740826
at *1 (N.D.Tex., Oct. 17, 1998) (citing cases) (all holding § 1983
cases that should have been filed under habeas corpus are
frivolous). This is a line that this Court has been struggling to
define for decades, often reversing the judgments of learned
appellate judges. See, e.g., Wilkinson v. Dotson, 544 U.S. 74
(2005); Muhammad v. Close, 540 U.S. 749 (2004) (per curiam);
Preiser v. Rodriguez, 411 U.S. 475 (1973).

34

courts. The plaintiff, despite being
barred from bringing his present § 1983
claims in federal court as an indigent,
still had available to him at the time of
the initial filing the opportunity to
litigate his federal constitutional causes
of action in forma pauperis in state
court. See Patsy v. Board of Regents of

Florida, 457 U.S. 496, 506-07, 73 L. Ed.
2d 172, 102 S. Ct. 2557 (1982). As long
as a judicial forum is available to a
litigant, it cannot be said that the right
of access to the courts has been denied.
Hampton, 106 F.3d at 1285.
Correction Law §24 denies any judicial forum to a
New York prisoner who is indigent and has had the
requisite three dismissals, since he cannot file in
federal court without prepaying the filing fee
regardless of the merit of his claim, and cannot
proceed under §1983 in state court. Thus he is
denied access to courts in the most literal sense.
A.

The Availability of the Court of Claims
Does Nothing to Lessen the Burden on the
Litigation of the Underlying Federal
Claim.

Although the Court of Claims cannot
entertain a §1983 federal claim, it does allow some
civil rights victims to seek a tort remedy for wrongs
done to them by DOCS employees, if there is a state

35

law claim for their injury. But statutory restrictions
prevent the Court of Claims from providing the same
procedural rights and remedies that state and
federal courts provide in §1983 actions. These
statutory restrictions burden the litigation of the
underlying federal claim. The Court of Claims
cannot award compensatory damages against an
individual, cannot award punitive damages, does not
provide a jury trial and cannot award attorneys’
fees.
Section 1983 states that ―every person‖ who
under color of state law subjects another person to a
violation of federal rights ―shall be liable to the party
injured in an action at law.‖ Imposing personal
liability for such injury implements core values
embodied in our Constitution and sends a clear and
vital message to anyone who would violate, under
color of state law, the constitutional rights of
another. Holding the culpable accountable is the
irreducible purpose of Section 1983 and the states
may not substitute their own policy choices for that
purpose.16
16

This point is far from formalistic. A judicial finding that an
identified person has to pay damages for violating the
constitutional rights of another person carries with it a stigma
that highlights the reprehensibility of the wrongdoer’s conduct
as well as the significance of the rights involved. The statute at
issue leaves certain victims of abuse of their federal rights
without a remedy under state law against the individual
wrong-doer. When a damage award is issued against an
agency, the individual stigma is lost. Although there are cases

36

Punitive damages also serve a recognized
purpose in §1983 litigation. ―[T]he purpose of
punitive damages is to punish the defendant and to
deter him and others from similar conduct in the
future.‖ Vasbinder v. Scott, 976 F.2d 118, 121 (2d
Cir.1992). By prohibiting a civil rights victim of a
DOCS employee from obtaining punitive damages in
state court from the individual who has violated his
federal constitutional rights while allowing an award
of such damages in other similar state law claims,
Correction Law §24 burdens ―one discrete category of
§1983 claims.‖ Howlett, 496 U.S. at 372; see also
Testa, 330 U.S. 386.
In addition, in a §1983 action, in a New York
state or federal court, a plaintiff has a right to a jury
trial.17 Congress has also authorized the award of
attorneys fees to the prevailing party in a §1983
action. 42 U.S.C. §1988(b). Correction Law §24
mandates that any damage claim against a DOCS
employee be pursued in the Court of Claims where
there are no juries and no right to an award of

where the state may chose to indemnify a DOCS employee after
there is a finding of wrongdoing, the stigma of a finding of
culpability in a public forum, accompanied by an order to pay
damages is still present. Indeed, often the public is unaware of
the indemnification.
17Plaintiffs

in §1983 actions in state supreme court are afforded
a trial by jury. Barone v. City of Mount Vernon, 170 A.D. 2d
557 (2d Dep’t 1991).

37

attorneys fees.18 McKinney’s Court of Claims Act
§12(3) and §27. By preventing civil rights victims of
DOCS employees from suing in state Supreme Court
where they could have a jury trial and, if successful,
an award of attorneys fees, Correction Law §24
deliberately burdens a subclass of claims that were
intended by Congress to be protected under §1983.
It is no answer to say that litigants who do not
wish to bear these burdens in state court may resort
to federal court, since the supremacy clause obliges
state courts to lend themselves to the litigation of
federal claims without burdening the litigation of the
federal claim. If this argument provided a defense,
then McKnett, Testa and Howlett would have been
decided differently.
IV.

CORRECTION LAW §24 UNDERMINES
FIRMLY ESTABLISHED PRINCIPLES OF
FEDERALSIM.

Today our system of judicial federalism allows
citizens to seek vindication of their constitutional
rights in either federal or state court. When this
nation was originally founded, however, the state
18

The lack of availability of attorneys fees makes it extremely
difficult for inmates to obtain counsel even in the most
meritorious cases. This, coupled with the difficulty uncounseled
litigants have in determining what action is considered ―within
the scope of employment‖ further burdens the ability of these
civil rights victims to litigate a federal claim.

38

courts were the primary adjudicators of federal
question cases.19 As discussed in The Federalist, No.
82:
[I]n every case in which [state
courts] were not expressly excluded by
the future acts of the national
legislature, they will of course take
cognizance of the causes to which those
acts may give birth.... [T]he inference
seems to be conclusive that the state
courts would have a concurrent
jurisdiction in all cases arising under
the laws of the union, where it was not
expressly prohibited.
The Federalist No. 82, p. 555 (J. Cooke ed. 1961) (A.
Hamilton)
It was not until 1875, when general federal
question jurisdiction was established, that litigants
19

At the formation of the American republic, it was widely
understood that state courts were to play an important role in
the interpretation of federal and constitutional law. Indeed,
until 1875, the ―inferior Courts‖ contemplated in Article III had
no general jurisdiction to hear federal question cases; the task
of interpreting federal and constitutional law thus fell largely
to state courts, subject only to final review by the United States
Supreme Court established by section 25 of the first Judiciary
Act and affirmed by the Supreme Court in Martin v. Hunter's
Lessee. Brett Christoper Gerry, Parity Revisited: An Empirical

Comparison of State and Lower Federal Court Interpretations
of Nollan v. California Coastal Commission, Harvard Journal
of Law and Public Policy (1999) (citations omitted).

39

in federal question cases could choose to file in either
federal or state court in federal question cases. In
Robb v. Connolly, 111 U.S. 624 (1884), this Court
clarified that the creation of federal question
jurisdiction did not, however, divest the state courts
of their jurisdiction over federal claims: ―Upon the
State courts, equally with the courts of the Union,
rests the obligation to guard, enforce, and protect
every right granted or secured by the Constitution of
the United States.‖ Id. at 637.
In 1990, this Court reiterated the vital role
that state courts play in interpreting and enforcing
the Federal Constitution stating as follows:
[U]nder our federal system, the
States possess sovereignty concurrent
with that of the Federal Government,
subject only to limitations imposed by
the Supremacy Clause. Under this
system of dual sovereignty, we have
consistently held that state courts have
inherent authority, and are thus
presumptively competent, to adjudicate
claims arising under the laws of the
United States.

Tafflin v. Levitt, 493 U.S. 455, 458 (1990). Thus, it is
generally understood that, unless preempted, state
courts have concurrent and necessary jurisdiction
over all federal statutes and laws.
Constitutional claims of prisoners account for
a significant amount of the federal courts’ docket.

40

New York State is abdicating its responsibility to
address those claims by prohibiting their filing in
state court. Correction Law §24 violates core
principles of federalism by largely ousting New York
state courts from analyzing federal constitutional
issues that arise from the operations of the state
prison system. Thiboutot, 448 U.S. 1.
V.

THE CLEAR INTENT OF CORRECTION
LAW §24 IS TO IMMUNIZE NEW YORK
STATE DOCS EMPLOYEES.

Though the New York Court of Appeals
concluded that Correction Law §24 is a jurisdictional
rule, the dissent was correct in concluding that
Correction Law §24 is nothing more than a statute
designed to immunize DOCS employees, and as
such, clearly violates the Supremacy Clause.
Haywood v. Drown, 9 N.Y.3d 481,500 (2008).
In Martinez, this Court reasoned:
A construction of the federal
statute which permitted a state
immunity defense to have a controlling
effect would transmute a basic
guarantee into an illusory promise; and
the
Supremacy
Clause
of
the
Constitution insures that the proper
construction may be enforced. . . . The
immunity claim raises a question of
federal law.

41

Martinez, 444 U.S. 277, 284 n.8 , quoting Hampton
v. Chicago, 484 F. 2d 602, 607 (7th Cir. 1973). Ten
years later, this Court reaffirmed its position,
stating that ―a State cannot immunize an official
from liability for injuries compensable under federal
law.‖ Howlett, 496 U.S. at 377.
Unlike true jurisdictional provisions, which
funnel certain types of cases to particular forums,
the statute at issue here forecloses all §1983 cases
for damages against DOCS employees in state
court.20 As Judge Jones stated in his dissent in this
case:
[I]f you strip away the veneer of
the majority’s arguments, section 24, a
statute which, on its face, precludes
anyone,
including
other
DOCS
employees
and
prisoners,
from
bringing damages claims against
DOCS personnel - - is not a neutral
jurisdictional barrier to a particular
type of claim.
In reality, section 24 functions
as an immunity statute that allows
state courts to selectively exclude
prisoner suits for damages against
DOCS personnel.
Haywood, 9 N.Y.3d at 500.
20

Although the state Court of Claims is available to victims of
civil rights violations by DOCS employees, that court does not
have jurisdiction over individual prison employees.

42

In Howlett, 496 U.S. 377, this Court held that
―[f]ederal law makes governmental defendants that
are not arms of the State, such as municipalities,
liable for their constitutional violations.‖ Like the
state law at issue in the Howlett case, Correction
Law
§24
confers
absolute
immunity
for
constitutional torts on a subgroup of such
defendants, DOCS employees.
CONCLUSION
Whether the Court concludes that Correction
Law §24 is an attempt to limit the jurisdiction of
New York’s state courts or confer immunity upon a
select group of state employees, the statute runs
afoul of the principles so clearly articulated in
Howlett, See 496 U.S. at 375. New York State has
chosen to constitute Supreme Courts of general
jurisdiction and to exercise jurisdiction over federal
claims, including §1983 actions by private citizens
against state employees. New York’s state courts are
fully competent to provide the remedies provided by
the federal statute. Id. at 378-379. New York State
cannot substitute its policies for those of Congress.
The defendants’ purported rationale for Correction
Law §24 does not constitute a valid excuse or neutral
reason as defined by this Court. Correction Law §24
burdens the litigation of a federal claim and
undermines firmly established principles of
federalism. For these reasons, and to ensure that
other states do not attempt an end-run around this

43

Court’s clear direction that the Supremacy Clause
prohibits states from enacting statutes that
undermine or defeat rights created by federal
statutes, this Court should reverse the lower court
decision.
Dated: Ithaca, New York
August 18, 2008
Respectfully submitted,
____________________________________
KAREN MURTAGH-MONKS*
Prisoners’ Legal Services of New York
114 Prospect Street
Ithaca, New York 14850
(607) 273-2283 (phone)
(607) 272-9122 (fax)
*Counsel of record
On the brief:
KAREN MURTAGH-MONKS
BETSY HUTCHINGS, Prisoners’ Legal Services
STEVEN BANKS
JOHN BOSTON
The Legal Aid Society
Prisoners’ Rights Project
199 Water Street, 6th floor
New York, N.Y. 10038
(212) 577-3530

44



 

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