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MULLIN v. P&R EDUC. SERVS.

September 30, 1996

DANIEL J. MULLIN, Plaintiff, against P&R EDUCATIONAL SERVICES, INC., and THE NEW YORK STATE DEPARTMENT OF MOTOR VEHICLES, Defendants.


The opinion of the court was delivered by: SEYBERT

 SEYBERT, District Judge:

 Plaintiff Daniel Mullin brings the instant action pursuant to 42 U.S.C. § 1983 alleging violations of his First Amendment and Fourteenth Amendment rights by defendants New York State Department of Motor Vehicles ("DMV") and P&R Educational Services Inc. ("P&R"). Pending before the Court is a motion by DMV to dismiss the complaint as against DMV on the ground that it is barred by the Eleventh Amendment. Similarly, P&R submitted an affidavit claiming that if the complaint is barred by the Eleventh Amendment as against DMV, it also should be barred as against P&R. Also pending before the Court is a motion by DMV to dismiss the cross-claims by P&R on the ground that they are barred by the Eleventh Amendment. For the reasons set forth below, DMV's motion to dismiss the complaint and DMV's motion to dismiss the cross-claims by P&R are granted. P&R's motion to dismiss the complaint on Eleventh Amendment grounds is denied.

 RELEVANT FACTS

 Plaintiff admits that he was arrested and plead guilty to a charge of driving while intoxicated. Complaint, Count 2, P 3. Plaintiff was sentenced to three years probation and was fined. In order for plaintiff to obtain driving privileges, plaintiff was required to register with P&R, which administers DMV's Drinking and Driving Program. Complaint, Count II, P 5.

 Plaintiff alleges that he was coerced by the DMV to participate in the Drinking and Driving Program. Moreover, plaintiff alleges that the release forms that he had to sign to participate in such program unjustly referred to plaintiff as an alcoholic. Complaint, Count V, P 6. Additionally, plaintiff claims that he has been forced to undergo treatment which conflicts with his religious and moral beliefs. According to plaintiff, his First Amendment and Fourteenth Amendment rights have been violated as a result of his participation in the Drinking and Driving Program. Complaint, Count V, P 6.

 Plaintiff claims that as a result of the signing of such forms and being forced to undergo such treatment, he has suffered damages in an amount in excess of $ 630,000.00 for "lost earnings, emotional trauma, damages to his reputation and money spent on therapists." Complaint, Count V, P 8.

 DISCUSSION

 I. MOTIONS TO DISMISS COMPLAINT ON ELEVENTH AMENDMENT IMMUNITY GROUNDS

 Defendants DMV and P&R move to dismiss the complaint on the ground that the Court lacks subject matter jurisdiction. Specifically, defendants alleges that the Court does not have authority or competence to hear and decide the case because plaintiff's claim is barred by the Eleventh Amendment.

 The Eleventh Amendment of the United States Constitution bars suits against the State in federal court unless the State consents to be sued, or Congress enacts legislation overriding the State's Eleventh Amendment immunity. *fn1" See, e.g., Will v. Michigan Dep't of State Police, 491 U.S. 58, 64, 109 S. Ct. 2304, 2309, 105 L. Ed. 2d 45 (1989). Although the Eleventh Amendment by its terms does not bar federal courts from hearing suits brought against a State by its own citizens, the Supreme Court "'has consistently held that an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another State.'" Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 113 S. Ct. 684, 121 L. Ed. 2d 605 (1993) (quoting Edelman v. Jordan, 415 U.S. 651, 652-63, 94 S. Ct. 1347, 1355, 39 L. Ed. 2d 662 (1974)). This bar exists whether the relief sought is legal or equitable. Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100, 104 S. Ct. 900, 908, 79 L. Ed. 2d 67 (1984).

 Here, there has been no showing that New York State has waived its immunity to suit; nor has Congress enacted legislation specifically overriding the State's immunity to suit. Jerrell v. State of New York, No. CV-94-3036 (CPS), 1996 WL 19173, *2 (E.D.N.Y., Jan 12, 1996); see Trotman v. Palisades Interstate Park Commission, 557 F.2d 35, 39-40 (2d Cir. 1977) (proclaiming that New York State has not waived its sovereign immunity and therefore is protected from suit in federal court for a Section 1983 violation). Moreover, because a State is not a "person" within the meaning of § 1983, this provision of the Civil Rights Act has not abrogated the sovereign immunity of the States pursuant to the Eleventh Amendment. See Will, 491 U.S. at 64, 71, 109 S. Ct. 2304, 2308, 2312 (1989); see also Richards v. New York State Dept. of Correctional Servs., 572 F. Supp. 1168, 1172 (S.D.N.Y. 1983) (granting a motion to dismiss because the New York State Department of Corrections is not a "person" within the meaning of the Civil Rights Act and thus not a proper party). Accordingly, if plaintiff had sued New York State, New York State would be immune from suit.

 The sovereign immunity of the Eleventh Amendment extends to "state officers who are sued in [his or her] official capacity since a suit brought against 'a state official in [his or her] official capacity is not a suit against the official but rather a suit against the official's office.'" Gonzales v. Wing, 167 F.R.D. 352, 355 (N.D.N.Y. 1996) (quoting Will, 491 U.S. at 71, 109 S. Ct. at 2312). As such, it is well established that a defendant's personal involvement in the alleged constitutional violation is a prerequisite to the imposition of damages in a § 1983 claim. See, e.g., Monell v. Department of Social Services, 436 U.S. 658, 690-95, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978); Rizzo v. Goode, 423 U.S. 362, 370-71, 96 S. Ct. 598, 604-05, 46 L. Ed. 2d 561 (1976); Al-Jundi v. Estate of Rockefeller, 885 F.2d 1060, 1065-67 (2d Cir. 1989); Gill v. Mooney, 824 F.2d 192, 196 (2d Cir. 1987); Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1986); McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977); Respress v. Coughlin, 585 F. Supp. 854, 859-60 (S.D.N.Y. 1984). Under the law of the Second Circuit, there are four ways in which a supervisory official may be personally involved in a § 1983 violation: (1) he or she may have directly participated in the infraction or be directly involved through ordering that the action be taken; (2) he or she may fail to remedy a wrong after learning of the violation; (3) he or she may have created or allowed a policy to continue under which the violation occurred; or (4) he or she has been grossly negligent in managing the subordinates who caused the violation. Williams, 781 F.2d at 323-24. If, however, the official is not charged in an individual capacity, the § 1983 claim is barred by the doctrine of sovereign immunity.

 Finally, the doctrine of sovereign immunity also extends to certain government entities under the "arm of the state" doctrine. See Gonzales, 167 F.R.D. at 355. Under this doctrine, sovereign immunity bars suits against entities which are in essence suits against the States. While the jurisprudence over how to apply the 'arm of the state' doctrine has been described as "at best, confused," the Second Circuit has set forth a six factor test to determine whether the entity is protected by the Eleventh Amendment. Mancuso v. New York State Thruway Auth., 86 F.3d 289, 292-93 (2d Cir. 1996) (citing Feeney v. Port Authority Trans-Hudson Corp., 873 F.2d 628, 630-31 (1989), aff'd on other grounds, 495 U.S. 299, 110 S. Ct. 1868, 109 L. Ed. 2d 264 (1990)), petition for cert. filed (Sept. 11, 1994) (No. 96-381). The six factors, referred to by the Second Circuit as the Feeney factors, that the Court must consider include: (1) how the entity is referred to in the documents that created it; (2) how the governing members of the entity are appointed; (3) how the entity is funded; (4) whether the entity's function is traditionally one of local or state government; (5) whether the State has a veto power over the entity's actions; and (6) whether the entity's obligations are binding upon the State. 86 F.3d at 293; see generally Gray v. Laws, 51 F.3d 426, 431 (4th Cir. 1995) ("Essentially the same broad principles identified by the Court as relevant in the multistate entity context apply also in determining whether, within a single state, a governmental entity is 'state' or 'local' for purposes of the Eleventh Amendment"). If these factors point in different ...


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