court was then directed to try the matter by reference to state law as necessary to properly adjudicate the case, except as to any discriminatory aspects.
The historic debates in Congress on both statutes make quite clear that their primary objectives were to establish and protect federal civil rights and thereby remove from the legal system the discrimination created by slavery and its incidents. Senator Trumbull, Chairman of the Senate Judiciary Committee, in discussing the 1866 Act prior to its passage, stated, "the purpose of the bill under consideration is to destroy all these discriminations, and to carry into effect the constitutional [Article XIII] amendment." Cong. Globe, 39th Cong., 1st Sess. 474 (1866). Referring to the clause authorizing the use of state law, which now appears in § 1988, Senator Trumbull stated, "the other provisions of the bill contain the necessary machinery to give effect to what are declared to be the rights of all persons in the first section." Id. (emphasis added). For example, the right "to make and enforce contracts" and "to sue" were declared, among other enumerated rights, to be federal civil rights by the 1866 Act. As there was no federal law of torts or contracts, the 1866 Act also authorized the federal court to apply state substantive law, as applicable, to facilitate an opportunity to fully litigate, free from illegal discrimination, the specific subject matter of a plaintiff's claim. In the case of a common law tort of negligence, for example, such reference could, therefore, conceivably include impleader and cross-claims, if available, to a defendant on a non-discriminatory basis, as such rules would also have been made available in the state court action which would have proceeded to adjudicate the claim but for an illegal discrimination as outlawed by the 1866 Act, and a transfer of the case to federal court.
Section 1983, however, stems not from the 1866 Act, but, as stated, from the 1871 Act. The purpose of the 1871 Act was to provide, among other remedies enacted to enforce the then recently adopted Fourteenth Amendment, a specific means to recover damages for violations of federally created civil rights. As explained by Senator Trumbull prior to its passage, the 1871 Act "was understood . . . to protect persons in the rights which were guaranteed to them by the Constitution and laws of the United States . . .." Cong. Globe, 42nd Cong., 1st Sess. 579.
As to federal civil rights, the violation of which may be remedied under § 1983, there would be no reason to apply state law unless such application would assist in obtaining damages through a civil action for a denial of a federal civil right. Rules of evidence (until adoption of the Federal Rules of Evidence in 1973), substantive law, such as the torts of false arrest and malicious prosecution, which aid in defining unreasonable seizures and due process violations, and the law of damages, are illustrations of state law which may be considered to advance such purposes, and are today routinely utilized by federal courts in the trial of § 1983 actions. Principles of contribution and indemnity are not of assistance to federal civil rights plaintiffs in pursuing their claims, and may inject issues into the litigation which could interfere with the prompt and orderly trial of such cases.
Even if a state-based claim for contribution or indemnity could arise in the context of a civil rights action under § 1983, the question arises whether it would ever be appropriate, under § 1988, to apply contribution or indemnification principles to such an action. For the reasons as discussed above, it is clear that common law or statutory indemnity and contribution principles serve different interests than the constitutional values sought to be vindicated in a § 1983 action. This does not mean that a defendant may not assert a claim for contribution or indemnity based upon a purely contractual obligation, as such rights do not arise from the wrongful conduct of the indemnitee. However, allowing a claim for contribution or indemnification by reference to state common law or statutory laws under 42 U.S.C. § 1988, is irrelevant to and inconsistent with the purpose and policy of the federal civil rights laws, and is, therefore, specifically excluded from consideration under 42 U.S.C. § 1988.
In this case, Plaintiff alleges that Smith violated his constitutional rights on June 25, 1990, a period of more than one year from the date of Plaintiff's resignation. The allegation against Smith, for the reasons as stated in Section 2 above, does not state a cognizable cause of action under 42 U.S.C. § 1983, 1985, or 1986. Further, even if this action went to trial and the State Defendants were found liable, they would be liable for their own actions, and not for the actions of Defendant Smith whose actions, as alleged, were "distinct and divisible" from those of the State Defendants. See Rosado, supra, at at 183. Under federal civil rights statutes, defendants must be found to have personally violated a plaintiff's civil rights for liability to exist. Monell v. Department of Social Services, 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). Indemnity and contribution will not be allowed in favor of an intentional tort-feasor. See Langley, supra, at 551 n.26; Valdez v. City of Farmington, supra, at 21 ("[a] co-defendant in pari delicto with a co-defendant generally may not receive indemnity"). Additionally, as noted in Valdez, supra, the requirement of personal liability of a civil rights defendant may be inconsistent with the requirement that, to establish a claim for common law indemnity, the claimant must show that his actions were passive. Valdez, supra, at 21. Accordingly, there is no basis on which to hold, in this action, the State Defendants liable for indemnification or contribution under § 1401 of the N.Y. Civil Practice Laws & Rules, and the cross-claim alleging such liability should be dismissed. The State Defendants' motion to dismiss the cross-claim of Defendant Smith, therefore, should be GRANTED.
Based on the foregoing discussion, I recommend that the State Defendants' motion to dismiss the complaint should be GRANTED. I also recommend that the complaint should be dismissed as against Defendants Swearingen. Defendant Smith's cross-motion to dismiss the complaint should also be GRANTED. Finally, in the alternative, I recommend that the State Defendants' motion to dismiss the cross-claim of Defendant Smith be GRANTED.
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED: October 25,, 1993
Buffalo, New York
Pursuant to 28 U.S.C. § 636(b)(1), it is hereby
ORDERED that this Report and Recommendation be filed with the Clerk of the Court.
ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of the Court within ten (10) days of receipt of this Report and Recommendation in accordance with the above statute, Rules 72(b), 6(a) and 6(e) of the Federal Rules of Civil Procedure and Local Rule 30(a).
Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Court's Order. Thomas v. Arn, 474 U.S. 140, 88 L. Ed. 2d 435, 106 S. Ct. 466 (1985); Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989); Wesolek v. Canadair Limited, 838 F.2d 55 (2d Cir. 1988).
Let the Clerk send a copy of this Report and Recommendation to counsel for Plaintiff and Defendants.
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED: October 25, 1993
Buffalo, New York