A. The Claim Against Director Hawk
Federal agents, such as Director Hawk, can be sued in either
their official capacity, or in their individual capacity. The
Complaint does not specify the capacity in which Hawk is named as
a Defendant,*fn5 but the Court lacks jurisdiction over
Plaintiffs' Eighth Amendment claim against Director Hawk
regardless of the capacity in which she is sued.
A Bivens claim may not be brought against an agency of the
United States. See FDIC v. Meyer, 510 U.S. 471, 483-86, 114
S.Ct. 996, 127 L.Ed.2d 308 (1994). Because any claim against
Director Hawk in her official capacity is the equivalent of a
claim against a United States agency, see Robinson v. Overseas
Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994) (citing
Meyer, 510 U.S. at 484-86, 114 S.Ct. 996; Kentucky v. Graham,
473 U.S. 159, 166-67, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985)), the
Plaintiffs' Bivens claim against Director Hawk in her official
capacity must be dismissed.
If Director Hawk is named in her individual capacity, she must
be subject to the personal jurisdiction of this Court. Under New
York law, which governs here, see Robinson, 21 F.3d at 510
(citations omitted), the Court would have personal jurisdiction
over a non-domiciliary like Director Hawk only if the injuries of
which Plaintiffs complain are substantially related to business
that she transacted in New York or were caused by tortious acts
she committed in New York. See N.Y. CPLR § 302(a)(1)-(2);
Kreutter v. McFadden Oil Corp., 71 N.Y.2d 460, 467,
527 N.Y.S.2d 195, 522 N.E.2d 40 (N.Y. 1988) (citations omitted); PDK
Labs, Inc. v. Friedlander, 103 F.3d 1105, 1109 (2d Cir. 1997)
(citations omitted). Other than the improperly pleaded conspiracy
allegation, however, the Complaint fails to allege any facts
which might establish that Director Hawk either committed
tortious acts in New York, or that the injuries of which
Plaintiffs complain were related to business she transacted in
New York. Mere supervision over the Bureau of Prisons, the reach
of which extends into every state, is insufficient to establish a
basis for the exercise of personal jurisdiction. See Lee v.
Carlson, 645 F. Supp. 1430, 1434 (S.D.N.Y. 1986), aff'd,
812 F.2d 712 (1987); cf. Green v. McCall, 710 F.2d 29, 33-34 (2d
Cir. 1983) (members of U.S. Parole Commission); Kronisch v.
United States, 83 Civ. 2458(KMW), 1997 WL 907994, at *18
(S.D.N.Y. April 14, 1997) (CIA Director), aff'd in part, rev'd
in part on other grounds, 150 F.3d 112 (2d Cir. 1998).
B. The Claim Against the Private Party Defendants
The dismissal of Plaintiffs' conspiracy allegation also
undermines their Eighth Amendment claim against the private party
defendants. As a general rule, only governmental actors may be
held responsible for constitutional violations. See Flagg Bros.,
Inc. v. Brooks, 436 U.S. 149, 156, 98 S.Ct. 1729, 56 L.Ed.2d 185
(1978) ("[M]ost rights secured by the Constitution are protected
only against infringement by governments."); Leeds v. Meltz,
85 F.3d 51, 54 (2d Cir. 1996). If the governmental actors in
question are agents of a state, redress may be sought through a
federal court action, pursuant to 42 U.S.C. § 1983. An individual
claiming a constitutional violation by federal officials may
bring a federal court action notwithstanding the lack of a
similar, authorizing statute. See Bivens v. Six Unknown Named
Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999,
29 L.Ed.2d 619 (1971). Courts generally treat Bivens actions
and § 1983 actions as analogous for most purposes, and frequently
treat rules of decision in one context as binding in the other.
See Tavarez v. Reno, 54 F.3d 109, 110 (2d Cir. 1995) (citing
Carlson v. Green, 446 U.S. 14, 18-20, 100 S.Ct. 1468, 64
15 (1980); Ayeni v. Mottola, 35 F.3d 680, 688 n. 10 (2d Cir.
1994); Ellis v. Blum, 643 F.2d 68, 84 (2d Cir. 1981)).
Private entities that act in concert with state actors may be
sued pursuant to § 1983 upon an allegation that the joint
activity caused a violation of a constitutional right. See Lugar
v. Edmondson Oil Co., Inc., 457 U.S. 922, 936, 102 S.Ct. 2744,
73 L.Ed.2d 482 (1982); Adickes v. S.H. Kress & Co.,
398 U.S. 144, 152, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). But whether a
similar allegation involving federal officials would give rise to
a Bivens action is the subject of a significant controversy
among federal courts. See Hammons v. Norfolk Southern Corp.,
156 F.3d 701, 705-08 (6th Cir. 1998) (holding that a Bivens
action may be brought against a private, non-individual
corporation); Kauffman v. Anglo-American Sch., 28 F.3d 1223,
1225-31 (D.C.Cir. 1994) (holding that a Bivens action may not
be brought against a private, non-individual entity); Heinrich
ex rel. Heinrich v. Sweet, 62 F. Supp.2d 282, 306-08 (D.Mass.
1999) (reviewing arguments of Hammons and Kauffman courts and
siding with Hammons).*fn6 Even if we were to resolve that
controversy in Plaintiffs' favor, a possibility that is by no
means certain, the lack of an adequately pleaded allegation of
joint or concerted action on behalf of the private party
defendants and a federal agent renders a Bivens claim
inappropriate. There is, therefore, no basis for an Eighth
Amendment claim against the private party defendants.
C. Supplemental Jurisdiction
Although federal courts have the authority to exercise
jurisdiction over supplemental state law claims after the
dismissal of all federal claims, we also have the authority to
decline to exercise such jurisdiction. See 28 U.S.C.A. §
1367(c)(3) (West 2000).
If the federal claims are dismissed before trial,
even though not insubstantial in a jurisdictional
sense, the state claims should be dismissed as well.
Castellano v. Bd. of Trustees, 937 F.2d 752, 758
(2d Cir. 1991). If, however, the dismissal of the
federal claim occurs `late in the action, after there
has been substantial expenditure in time, effort, and
money in preparing the dependent claims, knocking
them down with a belated rejection of supplementary
jurisdiction may not be fair. Nor is it by any means
necessary.' 28 U.S.C.A. § 1367, Practice Commentary
(1993) at 835.
Purgess v. Sharrock,