The opinion of the court was delivered by: LEWIS A. KAPLAN
Defendant Anthony Forte moves for reargument, seeking dismissal of plaintiff's pendent state law claims against him. The previous decision is reported at Brown v. Coughlin, 758 F. Supp. 876 (S.D. N.Y. 1991) ("Brown I"). The motion for reargument is granted. On reargument, the state law claims against Dr. Forte in his official capacity are dismissed on consent; the motion to dismiss the individual capacity state law claims is denied.
Plaintiff, James Brown, brought this action against present and former officials of the New York City Departments of Corrections and Health, the New York City Health and Hospitals Corporation, the Kings County Hospital Center, and the New York State Department of Correctional Services ("DOCS"), as well as former Mayor Edward I. Koch. He claims that he was subjected to cruel and unusual punishment in violation of the Eighth Amendment and that he was the victim of medical malpractice while first in City and then State custody. He brings his federal constitutional claim under 42 U.S.C. § 1983 and invokes the supplemental jurisdiction of the Court over his state law claims. The New York City defendants have settled. The remaining defendants are retired State Corrections Commissioner Coughlin, Stephen Dalsheim, Superintendent of the Downstate Correctional Facility ("DCF"), and Dr. Forte, former medical director at DCF and now medical director at another DOCS institution.
The crux of this motion is the effect of Section 24 of the New York Correction Law on the pendent malpractice claim. It currently provides in pertinent part:
"1. No civil action shall be brought in any court of the state, except by the attorney general on behalf of the state, against any officer or employee of the department [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 discharge of the duties by such officer or employee.
"2. Any claim for damages arising out of any act done or the failure to perform any act within the scope of the employment and in the discharge of the duties of any officer or employee of the department shall be brought and maintained in the court of claims as a claim against the state." N.Y. Corr. L. § 24 (McKinney 1987).
Dr. Forte argues that Section 24 deprives this Court of subject matter jurisdiction over the pendent state law individual capacity claims. Put another way, he argues that Section 24 eliminated any state law claim that otherwise might have existed against him in his individual capacity.
Plaintiff counters that the Supremacy Clause of the United States Constitution prevents the states from affecting the jurisdiction of the federal courts. More basically, he contends that Section 24 neither affects the jurisdiction of this Court nor abrogates the individual capacity claims here at issue.
In considering this motion, it is useful to note that there is a certain amount of confusion as a result of Brown I, where Dr. Forte and the State defendants made the same argument based on Section 24 of the Corrections Law that they now assert here. The Court summarized the argument and then wrote:
"Although state claims may fall as against the persons of the state defendants, the claims must survive as against the defendants in their official capacities. According to the state defendants, state law provides that the only valid claims in the instant matter are and must be asserted against New York State and because the State of New York is not physically named in the caption, showing that the State is being sued, the state claims must fall. This argument defies logic. If viewed in a vacuum, as the state defendants present the argument, then Brown would have no forum in which to bring his state claim except in the New York Court of Claims. I disagree.
"It is axiomatic that the Eleventh Amendment prohibits suits against the state being brought in Federal Court. [citation omitted] Therefore, pro forma, the way in which state plaintiffs circumscribe the problem is by naming representative state officials as individuals and/or in their official capacities for state claims pendent to federal claims. Otherwise, a plaintiff under 42 U.S.C. § 1983 would be absolutely precluded from bringing state claims into the federal court, thereby thwarting notions of judicial economy and timely resolutions. [citation omitted] That Brown's counsel chose to forego suit in the Court of Claims, instead annexing them as pendent to the federal claims at bar, ...