The opinion of the court was delivered by: McAVOY, Chief Judge.
Plaintiffs Richard Wallikas ("Wallikas") and Raymond Schaffer
("Schaffer") (collectively "Plaintiffs") commenced the instant
litigation against Defendants David Harder ("Harder"), Broome
County Sheriff, in his individual and official capacities, the
County of Broome (the "County"), and Gerald W. Kellar ("Kellar"),
Broome County Undersheriff, in his individual and official
capacities (collectively "Defendants"), asserting claims pursuant
to 42 U.S.C. § 1983 for alleged violations of Plaintiffs'
constitutional rights under the First and Fourteenth Amendments
of the United States Constitution, and pendant state law claims
under the New York Constitution and N.Y. CIV. SERV. LAW § 75-b.
Specifically, Plaintiffs allege that Defendants retaliated
against them, by affecting the terms and conditions of their
employment, in connection with Plaintiffs' participation in the
recent election for the Broome County Sheriff's position.
Presently before the Court are Defendants' motion to dismiss
certain claims pursuant to FED. R. CIV. P. 12(b)(2) and (6).
Because Defendants' motion raises various procedural issues that
do not address the facts or merits underlying Plaintiffs' claims,
the Court declines to elaborate on the specific facts and events
alleged in the Complaint.
A. Official Capacity Claims Against Harder and Kellar
Defendants first argue that the official capacity claims
against Harder and Kellar should be dismissed because Plaintiffs
also name the County as a defendant in the action.
In general, claims against municipal officials in their
official capacities are really claims against the municipality
and, thus, are redundant when the municipality is also named as a
defendant. See, e.g., Busby v. City of Orlando, 931 F.2d 764,
766 (11th Cir. 1991) ("Because suits against a municipal officer
sued in his official capacity and direct suits against
municipalities are functionally equivalent, there no longer
exists a need to bring official-capacity actions against local
government officials, because local government units can be sued
directly (provided, of course, that the public entity receives
notice and an opportunity to respond)"); Harford v. County of
Broome, 1999 WL 615190, at *5-6 (N.D.N.Y. July 15, 1999);
Jeffes v. Barnes, 20 F. Supp.2d 404, 410-11 (N.D.N.Y. 1998);
Union Pacific R.R. v. Village of S. Barrington, 958 F. Supp. 1285,
1291 (N.D.Ill. 1997); Orange v. County of Suffolk,
830 F. Supp. 701, 706-07 (E.D.N.Y. 1993). As the Supreme Court noted
in Kentucky v. Graham, 473 U.S. 159, 105 S.Ct. 3099, 87 L.Ed.2d
473 U.S. at 165-66, 105 S.Ct. 3099 (quotations omitted).
In the present action, Plaintiffs bring both official-capacity
claims against the individual defendants and a Monell-type
claim against the County. In addressing the issue of whether a
sheriff is an agent or officer of the county such that the county
may be liable for the unlawful actions of the sheriff, this Court
recently held that it:
Harford, 1999 WL 615190, at *5.
Accordingly, based upon the distinction between personal capacity
and official capacity suits, and because Plaintiffs commenced the
instant litigation against both Defendants Harder and Kellar in
their official capacities and against the County, the
official-capacity claims against Defendants Harder and Kellar are
Defendants argue that Plaintiffs' state law claims brought
pursuant to the New York State Constitution and N.Y. CIV. SERV.
LAW § 75-b should be dismissed for failure to serve a timely
notice of claim pursuant to N.Y. COUNTY LAW § 52 ("Section
dispute that they have failed to file and serve the requisite
notice of claim; rather, Plaintiffs argue, with little support,
that they are entitled to relief from the notice requirement in
Section 52 because their claims fall within the "public interest"
exception recognized by the New York Court of Appeals in Union
Free Sch. Dist. No. 6 of the Towns of Islip and Smithtown v. New
York State Human Rights Appeal Bd., 35 N.Y.2d 371, 362 N.Y.S.2d 139,
320 N.E.2d 859 (1974). In Union Free School District, the
Court of Appeals "recognized an exception to the notice of claim
requirement when an action is not brought merely to enforce a
private right, but rather, to vindicate a public interest."
Turner v. County of Suffolk, 955 F. Supp. 175, 176 (E.D.N Y
1997). As the district court in Turner noted, "[i]n [Union
Free School District], the Division of Human Rights asserting a
claim on behalf of a class of women plaintiffs alleging that
the school board's policy with respect to maternity leave was
discriminatory." Id. (emphasis added).
In Mills v. County of Monroe, 59 N.Y.2d 307, 464 N.Y.S.2d 709,
451 N.E.2d 456, cert. denied, 464 U.S. 1018, 104 S.Ct.
551, 78 L.Ed.2d 725 (1983), the New York Court of Appeals
revisited this issue, in a case where a county employee brought a
Section 1983 claim alleging that she was terminated on the basis
of her race and national origin. In that case, the plaintiff
sought monetary damages based on lost wages and damage to her
reputation. See id. at 312, 464 N.Y.S.2d 709, 451 N.E.2d 456.
In distinguishing the facts in Mills from those presented in
Union Free School District, the Court of Appeals noted:
[I]t is clear that plaintiff's action was not brought
to vindicate a public interest, insofar as that
principle would entitle her to a complete waiver of
the notice requirement. Her allegations of actionable
conduct on the part of the county refers only to
conduct that relates to her. Although plaintiff does
aver that the county had engaged generally in
unlawful discriminatory practices, her action seeks
relief only for her termination, which she alleges
resulted from her opposition to the county's
discriminatory practices and her race and national
origin. The relief she seeks is money damages for her
loss of wages and damage to her reputation. Inasmuch
as the disposition of plaintiff's claim was not
intended to nor could it directly affect or vindicate
the rights of others, her action is properly
characterized as one seeking the enforcement of
59 N.Y.2d at 312, 464 N.Y.S.2d 709, 451 N.E.2d 456.
Thus, the Mills court differentiated between cases where a
plaintiff sought to enforce her private rights and cases where a
plaintiff brings an action "to protect an important right, which
seek[s] relief for a similarly situated class of the public, and
whose resolution would directly affect the rights of that class
or group [and] are deserving of special treatment." Id. at 311,
464 N.Y.S.2d 709, 451 N.E.2d 456.
The Court finds that the facts in this case are governed by the
rule in Mills. By the plain terms of their Complaint,
Plaintiffs seek monetary damages; reinstatement to the positions
and job responsibilities they held prior to the events alleged in
the Complaint; and removal of any admonitions or adverse reports
contained in their personnel files. Thus, the relief requested is
"limited to redressing [Plaintiffs'] individual injur[ies]."
Turner, 955 F. Supp. at 177. The Court therefore finds that
Plaintiffs' state-based claims are brought to enforce private
rights, rather than to vindicate a public interest. Accordingly,
Plaintiffs' claims brought under the New York State Constitution
and N Y
CIV. SERV. LAW § 75-b are dismissed for failure to file and serve
the requisite notice of claim. See Turner, 955 F. Supp. at 177;
423 South Salina St., Inc., 68 N.Y.2d at 490, 510 N.Y.S.2d 507,
503 N.E.2d 63; Mills, 59 N.Y.2d at 312, 464 N.Y.S.2d 709,
451 N.E.2d 456; Phelps Steel, Inc., 89 A.D.2d at 652, 453 N.Y.S.2d 118.
C. Claims Under N.Y. CIV. SERV. LAW § 75-b Against Harder and
Kellar in Their Individual Capacities
Defendants last argue that to the extent Plaintiffs' allege a
cause of action under N.Y. CIV. SERV. LAW § 75-b against Harder
and Kellar in their individual capacities, such claims should
be dismissed because Harder and Kellar are not "public employees"
as defined under Section 75-b. In response, Plaintiffs do not
dispute Defendants' contention. See Pls. Mem. of Law at 4.
As the district court in Kirwin v. New York State Office of
Mental Health, 665 F. Supp. 1034, 1039 (E.D.N.Y. 1987) held:
Public employees in their individual capacities do
not belong to the class of defendant defined by the
statute. A public employee, regardless of rank, is
not the employer of a fellow employee. Therefore, a
public employee in his individual capacity may not be
sued under [Section] 75-b.
See also Fry v. McCall, 945 F. Supp. 655, 666 (S.D.N.Y. 1996);
Moore v. County of Rockland, 192 A.D.2d 1021, 596 N.Y.S.2d 908,
911 (3rd Dep't 1993). Accordingly, Plaintiffs' claims under
Section 75-b against defendants Harder and Kellar in their
individual capacities cannot be maintained.
For the foregoing reasons, the official capacity claims against
defendants Harder and Kellar are DISMISSED; the state-based
claims brought pursuant to the New York State Constitution and
N Y CIV. SERV. LAW § 75-b are DISMISSED; and the claims brought
under N.Y. CIV. SERV. LAW § 75-b against defendants Harder and
Kellar in their individual capacities are DISMISSED.
IT IS SO ORDERED.