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February 7, 1985


The opinion of the court was delivered by: LASKER

LASKER, District Judge.Plaintiff, Eddie Lee Gordon, sues under 42 U.S.C. § 1983 alleging deprivation of his rights under the Fourth, Eighth and Fourteenth Amendments, and under the common law of New York.

On March 6, 1979 Gordon was sentenced in Grady County, Cairo, Georgia, to confinement for a term of ten years of burglary. Under the terms of the sentencing order, Gordon had to serve four years in prison and six years on probation. On May 2, 1979 Gordon was indicted in Nassau County, New York for an unrelated offense of attempted robbery in the second degree. Gordon traveled to New York for adjudication of that offense, and on September 13, 1979 he was sentenced by Judge Baker to an indeterminate sentence of "none" to five years to run concurrently with the ten-year sentence previously imposed in Georgia.

On September 6, 1979 Gordon was returned to custody in Georgia to continue serving his sentence. Nassau County subsequently filed a detainer with Georgia so that New York would be notified if Gordon were released by the Georgia officials before completion of the minimum New York sentence.

 Gordon completed two of the four-year prison portions of his Georgia sentence on March 6, 1981 and was paroled. Georgia officials, acting pursuant to the detainer filed by Nassau County, notified Nassau County officials of plaintiff's impending release. Two Nassau County correctional officers, Watley and Witsell, met Gordon at the Georgia facility and arrested an transported him back to New York. In New York, he was incarcerated at Ossining Correctional Facility and later transferred to Attica Correctional Facility. Gordon met with the New York parole board on May 12, 1981 and again on August 5, 1981 at which time he was granted parole effective on or after October 14, 1981. In sum, he was incarcerated in New York for a period of almost eight months.

 Gordon subsequently brought this action naming as defendants Officers Watley and Witsell (hereafter, the "Nassau defendants") as well as Thomas Coughlin, III, Commissioner of the New York State Department of Correctional Services, Harold J. Smith, Superintendent of the Attica Correctional Facility, Wilson E.J. Walter, Superintendent of the Ossining Correctional Facility, John and/or Jane Does Nos. 1-10 who were employed by the State of New York within the Department of Corrections, the Attica facility, or the Ossining facility, and who took part in the seizure, arrest and detention, and John and/or Jane Does Nos. 11-20, who served on the parole board (hereafter, the "state defendants").

 Three motions are before the court. *fn1"

 1. The state defendants move (A) to dismiss for lack of jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) Gordon's state law claims and the Nassau defendants' cross-claim, and (B) to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure.

 2. The Nassau defendants move for summary judgment on the ground that they acted in good faith and pursuant to a lawful detainer warrant.

 3. Plaintiff moves for leave to file a second amended complaint to add as defendants Nassau County and Lieutenant McGuire, a correctional officer employed by Nassau County.

 For the reasons set forth below, the state defendants' motion to dismiss is granted in part and denied in part; the Nassau defendants' motion for summary judgment is denied; the plaintiff's motion for leave to file a second amended complaint is granted in part and denied in part.


 A. Pennhurst v. Haldermann

 The state defendants move to dismiss Gordon's pendent state claims on the ground that they are barred by the Eleventh Amendment as recently interpreted by the Supreme Court in Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 104 S. Ct. 900, 79 L. Ed. 2d 67 (1984). They arguethat Gordon is suing each of the state defendants only in their official capacity, that his claims are accordingly asserted against New York State itself for an alleged violation of state law, and that Pennhurst bars these claims, "regardless of the nature of the relief sought." *fn2" Gordon contends that Pennhurst does not apply because that case was confined to the issue of whether a federal court may award injunctive relief against state officials on the basis of state law. See id., 104 S. Ct. at 903. He asserts that in this case, by way of contrast, only damages are sought against certain state and local officials based upon their tortious and unconstitutional conduct. In addition, Gordon argues that his state claims should be heard along with his federal claims for reasons for fairness, judicial economy and efficiency.

 We agree with Judge Sofaer, who faced a similar issue, that: Pennhurst holds that when the Eleventh Amendment bars federal causes of actionwhich could otherwise be brought in ...

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