United States District Court, Southern District of New York
April 9, 2003
ALLAN M. QUIRK, PLAINTIFF
THE CITY OF NEW YORK AND STATE OF NEW YORK, DEFENDANTS
The opinion of the court was delivered by: Robert L. Carter, United States District Judge
Plaintiff Allan Quirk commenced this action against the City of New York and State of New York under 42 U.S.C. § 1981, 1983, 1985, alleging violations of his rights under the First, Fourth, Fifth, Eighth, and Fourteenth Amendments. Plaintiff also seeks attorneys fees pursuant to 42 U.S.C. § 1988. The State now moves to dismiss the complaint as it pertains to the State for lack of subject matter jurisdiction and for failure to state a claim, pursuant to Rules 12(b)(1) 12(b)(6), F.R.Civ.P.
The facts, as alleged in plaintiff's complaint and affidavit, are as follows. On January 22, 2002, the State entered a judgment against plaintiff based on default on an order of support. The State issued a warrant and restraining notice pursuant to that judgment, and removed money from plaintiff's bank account, which contained plaintiff's disability payments. plaintiff claims that he was never in default on his support obligations, and that the levying of his account violated his constitutional rights.
The State's principal argument for dismissal is that the Eleventh Amendment bars the action against it. The Eleventh Amendment to the Constitution bars suits against a state brought in the federal courts by its own citizens or citizens of another state, unless the state unambiguously consents to such a suit or Congress validly and unambiguously abrogates the state's sovereign immunity. Board of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 363 (2001).
Here, the State has not consented to be sued in federal court over plaintiff's claims, nor has Congress abrogated the State's immunity as to claims brought pursuant to 42 U.S.C. § 1981, 1983, or 1985. See, e.g., Santiago v. N.Y.S.tate Dep't of Correctional Svcs., 945 F.2d 25 (2d Cir. 1991) (no cause of action against New York State under § 1983) (citing Will v. Mich. Dep't of State Police, 491 U.S. 58 (1989)); During v. City Univ. of N.Y., 01 Civ. 9584, 2002 WL 1159675, at *2 (S.D.N.Y. May 31, 2002) (Jones, J.) (dismissing § 1981 action against New York State) (citing Quern v. Jordan, 440 U.S. 332, 343 (1979)); True v. N.Y.S.tate Dep't of Correctional Svcs., 613 F. Supp. 27, 31 (D.C.N.Y. 1984) (Elfvin, J.) (dismissing §§ 1983 and 1985 actions against New York State) (citations omitted).
Accordingly, the State is dismissed from this action due to lack of subject matter jurisdiction.
IT IS SO ORDERED.
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