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PRISCO v. NEW YORK

September 3, 1992

THOMAS PRISCO and FILOMENA PRISCO, Plaintiffs, against THE STATE OF NEW YORK; NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION; THOMAS C. JORLING, as Commissioner of the New York State Department of Environmental Conservation; STATE OF NEW YORK ORGANIZED CRIME TASK FORCE; RONALD GOLDSTOCK, as Director of State of New York Organized Crime Task Force; JOHN W. MURRAY and WILLIAM E. BUBENICEK, as employees of Division of Law Enforcement, Bureau of Environmental Conservation Investigation, New York State Department of Environmental Conservation; NEW YORK STATE POLICE; THOMAS A. CONSTANTINE, as Superintendent of New York State Police; LLOYD F. WARD, as an employee of the New York State Police; JAMES LaBATE; ANGELO ANTHONY CALVELLO; A-1 CARTING, INC.; A-1 COMPACTION CORP.; A-1 COMPACTION, INC.; GREENE REFUSE SERVICE; A & D CARTING CORP.; A.F.C. TRANSFER, INC. a/k/a/ A.F.C. TRANSFER CORP.; A.F.C. CONTAINER SERVICE, INC.; A.F.C. CARTING, INC.; A & M BROS., INC.; AMERICAN DISPOSAL SERVICES, INC.; BLACK MEADOW CONSTRUCTION, INC.; JOHN DANNA & SONS, INC.; GUNHILL TRUCKING, LTD.; SUBURBAN CARTING CORP.; TRI-STATE TRUCKING CORP., and other, if any, waste depositors who entered plaintiffs' property, whose names are presently unknown, Defendants.

Carter


The opinion of the court was delivered by: ROBERT L. CARTER

CARTER, District Judge

 The controversy centers around the Prisco's land in Patterson, New York, where a landfill was operated for several months in 1987 and 1988. Plaintiffs claim that in August, 1987, they were approached by defendants William Bubenicek, who represented himself as a law enforcement officer for the New York State Department of Environmental Conservation ("NYDEC"), and Lloyd Ward, a New York State Police Officer. Bubenicek and Ward sought to establish a construction and demolition landfill on the plaintiffs' property, to be run by NYDEC. Plaintiffs assert that they agreed to allow the landfill on their property, and that Bubenicek and Ward operated the landfill facility on plaintiffs' property, allegedly on behalf of and with the authorization of defendant NYDEC.

 Plaintiffs further assert that NYDEC, in conjunction with the New York Organized Crime Task Force ("OCTF") and the other state defendants, was actually engaged in a "sting" operation on the property in an attempt to gain information about the waste hauling industry in the area. During this sting operation, the private corporate defendants, allegedly at the direction of the state defendants, deposited hazardous waste materials on plaintiffs' property. These hazardous wastes polluted the soil and water on plaintiffs' property, and this lawsuit followed.

 I. Plaintiffs' Motion to Disqualify Attorney General's Office

 Plaintiffs seek to disqualify the Attorney General's office from representing Bubenicek and Ward in this action because of a conflict between the officers' interests on the one hand and those of the other state defendants on the other. Plaintiffs argue that, given this conflict, the Attorney General's office cannot represent all the state defendants consistent with its ethical obligations under Canons Five and Nine of the ABA Code of Professional Responsibility. While plaintiffs have indeed identified a conflict, it involves non-parties to this action, and accordingly does not require disqualification of the Attorney General's office.

 The allegedly significant conflict arises because of directly opposing arguments that would likely be advanced by the state defendants and Bubenicek and Ward as individual defendants to this action. The central controversy in this case concerns whether Bubenicek and Ward took the alleged actions on the Prisco property as individuals or as agents of the state. If Bubenicek and Ward were acting as individuals, the state will likely escape liability for the damages they allegedly caused to plaintiffs' property. If, however, their actions were taken within the scope of their employment or are otherwise attributable to the state, the state will be liable for the damages and recovery effort. Accordingly, the state has an incentive to argue that Bubenicek and Ward did not act with authorization from the state, and that their actions do not give rise to state liability. Bubenicek and Ward, on the other hand, have an incentive to argue that the actions they took at the Prisco site were within the scope of their employment and/or were attributable to the state. See Dunton v. County of Suffolk, 729 F.2d 903, 906-07 (2d Cir. 1984) (discussing conflicting incentives and disqualification in this context). This conflict, in plaintiffs' view, requires disqualification of the Attorney General from representing both Bubenicek and Ward and the other state defendants.

 The capacity in which Bubenicek and Ward have been sued in this case is therefore crucial to plaintiffs' disqualification motion. While the court has previously expressed its view that Bubenicek and Ward have been sued only in their official capacities in this litigation, see Prisco v. State of New York, et al., 1992 U.S. Dist. LEXIS 5273, the following more thorough investigation of the issue is warranted given plaintiffs' motion. The Supreme Court has explained the distinction between official and individual or personal capacity suits as follows:

 Personal-capacity suits seeks to impose personal liability upon a government official for actions he takes under color of state law. Official-capacity suits, in contrast, generally represent only another way of pleading an action against an entity of which an officer is an agent. As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity. It is not a suit against the official personally, for the real party in interest is the entity.

 Kentucky v. Graham, 473 U.S. 159, 165-66, 87 L. Ed. 2d 114, 105 S. Ct. 3099 (1985) (citations omitted). The Court further noted that, "in many cases, the complaint will not clearly specify whether officials are sued personally, in their official capacities, or both. 'The course of proceedings' in such cases typically will indicate the nature of the liability sought to be imposed." Id. at 167 n.14 (quoting Brandon v. Holt, 469 U.S. 464, 469, 83 L. Ed. 2d 878, 105 S. Ct. 873 (1985)).

 In this case, however, the complaint is quite clear that Bubenicek and Ward have been sued only in their official capacities. Both the caption of the complaint and the allegations contained in its body support this conclusion. While the caption is not normally deterninative of the identity of the parties or the pleader's statement of claim, see Greenwood v. Ross, 778 F.2d 448, 452 (8th Cir. 1985); 5 Charles A. Wright and Arthur R. Miller, Federal Practice & Procedure, § 1321 (2d ed. 1990), it nevertheless is helpful in this and many other cases. Here, the caption names as defendants "WILLIAM E. BUBENICEK, as employee[] of Division of Law Enforcement, Bureau of Environmental Conservation Investigation, New York State Department of Environmental Conservation" and "LLOYD F. WARD, as an employee of the New York State Police." These allegations clearly invoke the official positions of Bubenicek and Ward, leaving out their individual capacities.

 Further evidence of the official nature of the suit against Bubenicek and Ward is found in the body of the amended ...


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