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RICHARDS v. NEW YORK STATE DEPT. OF CORRECTIONAL S

October 7, 1983

EMANUEL RICHARDS, JR., EDWARD S. JORDAN, WILLIAM ARRINGTON, ELMER OWENS, CLARENCE RIVERS, FANNIE BECKLES, BENNIE McCALL, and MINORITY CORRECTION OFFICERS ASSOC., INC., individually and as representative of all others similarly situated, Plaintiffs,
v.
NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES, THOMAS A. COUGHLIN, III, Individually and as Commissioner of the New York State Department of Correctional Services, JOHN CASSIDY, Individually and as Director of the Bureau of Labor Relations of the Department of Correctional Services, and MEYER FRUCHER, Individually and as Director of the Office of Employee Relations, New York State Executive Department, Defendants



The opinion of the court was delivered by: GOETTEL

GOETTEL, D.J.:

 This employment discrimination action is brought by several present and former correction officers and the Minority Correction Officers Association ("MCOA") against the New York State Department of Correctional Services (the "Department"), Thomas A. Coughlin, III, Commissioner of the Department, John Cassidy, Director of the Bureau of Labor Relations of the Department (the "Bureau"), and Meyer Frucher, Director of the Office of Employee Relations, New York State Executive Department (the "Office of Employee Relations"). The plaintiffs allege that the defendants have discriminated against them on the basis of race in violation of 42 U.S.C. §§ 1981, 1983, 1985, 2000d (1976 & Supp. V 1981) ("Title VI"), N.Y. Const. arts. I & II, and N.Y. Civ. Rights Law §§ 8, 12 (McKinney 1976). Stated generally, the plaintiffs' allegations are that the defendants have illegally discriminated in the evaluation, promotion, disciplining, and termination of black correction officers who work for the Department. Jurisdiction is invoked under 28 U.S.C. § 1343 (1976).

 The defendants now move to dismiss under Fed. R. Civ. P. 12(b) on the following grounds: (1) that the Court lacks jurisdiction over the Department because it is immune from suit; (2) that the Court lacks personal jurisdiction over certain defendants who were not properly served; (3) that for certain of their causes of action the plaintiffs have failed to state a claim for which relief can be granted; (4) that the plaintiffs' claims are barred by the statute of limitations; (5) that plaintiff MCOA lacks standing in both its individual and representative capacities; and (6) that the Court lacks jurisdiction to hear the various pendent state claims. The Court will consider each of these claims separately.

 1. Immunity of the Department to Suit by These Defendants

 The defendants challenge the Court's jurisdiction over the Department, arguing that it is an agency of a state government and therefore not amenable to suit under the Civil Rights Act (the "Act"). We agree. A state and its agencies are not "persons" under 28 U.S.C. §§ 1981, 1983, and 1985 and, therefore, are not subject to suit under the Act. *fn1" See Allah v. Commissioner of Department of Correctional Services, 448 F. Supp. 1123, 1125 (N.D.N.Y. 1978); Percy v. Brennan, 384 F. Supp. 800, 809 (S.D.N.Y. 1974); Thompson v. New York, 487 F. Supp. 212, 218 (W.D.N.Y. 1979). *fn2" This is true whether the relief being sought is legal or equitable. City of Kenosha v. Bruno, 412 U.S. 507, 511-13, 37 L. Ed. 2d 109, 93 S. Ct. 2222 (1973); Diaz v. Ward, 437 F. Supp. 678, 688 (S.D.N.Y. 1977), appeal dismissed, 652 F.2d 53 (2d Cir. 1981). Thus, because the Department is an agency of the state, it is not a "person" within the meaning of the Act and not a proper party defendant in this action.

 Accordingly, the defendants' motion to dismiss the Department for lack of jurisdiction must be granted.

 2. Insufficiency of Service of Process

 Defendants John Cassidy and Meyer Frucher assert that they have not been properly served in either their individual or official capacities. Rule 4(d) (1) of the Federal Rules of Civil Procedure, which governs in this case, *fn3" provides that personal service shall be made

 
upon an individual other than an infant or an incompetent person, by delivering a copy of the summons and of the complaint to him personally or by leaving copies thereof at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process.

 Fed. R. Civ. P. 4(d) (1).

 In the case of John Cassidy, the Director of the Bureau, the plaintiffs apparently attempted to serve him through Arthur W. Fowler, Jr., the Assistant Director under Cassidy. Fowler maintains that when the process server, Susan Stranahan, sought to serve Cassidy at the Bureau, she was informed that Cassidy was not in and that Fowler was in charge. Rather than try to serve Cassidy at a later date, she told Fowler she could serve him instead, proceeded to hand him the summons and complaint, and left before he had an opportunity to examine the papers. Affidavit of Arthur W. Fowler, Jr. para. 4.

 This attempt to serve Cassidy was ineffective, however, because personal service of a summons to a party through a co-employee does not constitute sufficient service unless the co-employee is the agent of the party to be served. See Lavender-Cabellero v. Department of Consumer Affairs, 458 F. Supp. 213, 216 (S.D.N.Y. 1978). This is true even if, as was the case here, the summons shortly thereafter comes into the possession of the party to be served. McDonald v. Ames Supply Co., 22 N.Y.2d 111, 114-15, 238 N.E.2d 726, 728, 291 N.Y.S.2d 328, 331 (1968). To demonstrate an agency relationship, something more than mere acceptance of service by a purported agent must be shown, 2 J. Moore, J. Lucas, H. Fink & C. Thompson, Moore's Federal Practice para. 4.12 (2d ed. 1982), C. Wright & A. Miller, Federal Practice and Procedure § 1097 at 371 (1969); yet, there is nothing more in the record to suggest that such an agency relationship existed between Fowler and Cassidy. Therefore, the Court finds that the plaintiffs have failed to serve Cassidy properly in either his official or individual capacity.

 In the case of Meyer Frucher, the Director of the Office of Employee Relations, the attempted service through a third person was more successful. Walter J. Pellegrini, then counsel to the Director of Employee Relations, accepted the service of process for Frucher because, as Pellegrini stated, "counsel was authorized and would accept service of summons addressed for the Director of that Office as agent for the Director." Affidavit of Walter J. Pellegrini para. 4. This statement clearly describes an agency relationship such that Frucher in his official capacity was properly served through Pellegrini. The record does not establish, however, that Pellegrini was authorized to accept service on behalf of Frucher in his individual capacity. Absent evidence of such authority, we must conclude that Frucher has been properly served only in his official capacity.

 Accordingly, the defendants' motion to dismiss for insufficiency of service is granted in full with respect to Cassidy and in part with respect to Frucher. *fn4" In both instances, however, the Court grants the plaintiffs thirty (30) days leave to reserve the defendants. See Fed. R. Civ. P. 4(h).

 3. Adequacy of Claims Under the Civil Rights Act (the "Act")

 The defendants also move to dismiss, pursuant to Rule 12(b) (6) of the Federal Rules of Civil Procedure, on the grounds that each of plaintiffs' causes of action under the Act, 42 U.S.C. §§ 1981, 1983, 1985, and 2000d (1976 & Supp. V 1981), rests on vague and conclusory allegations that are insufficient to state a legal claim. In considering this argument, the Court must accept all material allegations in the amended complaint as true and construe them liberally in favor of the plaintiffs. *fn5" Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1973); Gutierrez v. Vergari, 499 F. Supp. 1040, 1046 (S.D.N.Y. 1980). The general rule is that a complaint should be dismissed only if it appears that the plaintiff could prove no set of facts in support of his claim that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). The Second Circuit, however, has noted that a plaintiff bringing claims under the Civil Rights Act must include in the complaint some allegations of fact indicating a deprivation of civil rights. See Koch v. Yunich, 533 F.2d 80, 85-86 (2d Cir. 1976); Fine v. City of New York, 529 F.2d ...


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