Sylvester v. Annucci

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

JOACHIM SYLVESTER,

Plaintiff,

22-CV-151-LJV

v. DECISION & ORDER

ANTHONY ANNUCCI, et al.,

Defendants.

On February 22, 2022, the pro se plaintiff, Joachim Sylvester, commenced this

action under 42 U.S.C. §§ 1981, 1983, and 1985. Docket Item 1. He alleges that the

defendants—Anthony Annucci, Acting Commissioner of the New York State Department

of Corrections and Community Supervision (“DOCCS”); Corrections Officers Adam

Ripley, Kyle Ramirez, and Megan Naida; and Corrections Lieutenant Trevor

Schadewald—violated his rights in January 2019 when he was confined at the Elmira

Correctional Facility (“Elmira”). Id. On May 4, 2023, the defendants moved to dismiss

the complaint under Federal Rule of Civil Procedure 12(b)(1) and (6), Docket Item 14;

on July 10, 2023, Sylvester responded, Docket Item 18; and on July 20, 2023, the

defendants replied, Docket Item 19.

For the following reasons, the defendants’ motion to dismiss is granted in part

and denied in part. In addition, in light of Sylvester’s pro se status, the Court grants

Sylvester leave to amend his complaint to correct several of the deficiencies outlined

below.

BACKGROUND1

On January 7, 2019, Corrections Officers Ripley and Ramirez searched

Sylvester’s cell at Elmira. Docket Item 1 at ¶ 1. Afterwards, the two officers filed a

misbehavior report, charging Sylvester with possessing a weapon, an altered item, and

excessive tobacco. Id. Two days later, on January 8, 2019, Officer Naida again

searched Sylvester’s cell and filed a misbehavior report charging Sylvester with drug

possession. Id. at ¶ 2. Sylvester was not present for either search. Id. at ¶ 3.

Sylvester pleaded not guilty to the four charges in the two misbehavior reports,

and he was given a disciplinary hearing before Lieutenant Schadewald. Id. at ¶ 4. At

the hearing, Sylvester told Schadewald that he was not present for either search. See

id. at ¶ 6. Schadewald nevertheless found Sylvester guilty of all four charges, and

Sylvester spent 365 days in Elmira’s special housing unit as a result. Id. at ¶¶ 5, 20.

Schadewald also revoked Sylvester’s package, commissary, and telephone privileges

for 312 days, as well as his visitation privileges for 60 days. Id.

Sylvester appealed the result of his disciplinary hearing to Commissioner

Annucci, arguing that his convictions should be annulled and expunged because the

searches were performed outside his presence. Id. at ¶ 6. Sylvester’s appeal was

1 In deciding a motion to dismiss, a court “accept[s] all factual allegations as true

and draw all reasonable inferences in favor of the plaintiff.” Trs. of Upstate N.Y. Eng’rs

Pension Fund v. Ivy Asset Mgmt., 843 F.3d 561, 566 (2d Cir. 2016). The following facts

are taken from the complaint, Docket Item 1, and any documents upon which it relies or

of which the Court may take judicial notice on a motion to dismiss, see L-7 Designs, Inc.

v. Old Navy, LLC, 647 F.3d 419, 422 (2d Cir. 2011).

denied. See id. Sylvester then filed a petition in state court pursuant to Article 78 of

New York’s Civil Practice Law and Rules.2 Id. at ¶ 7.

The New York State Supreme Court, Appellate Division, Third Department,

vacated two of the four findings. See In re Sylvester v. Annucci, 131 N.Y.S.3d 722, 186

A.D.3d 1857 (3d Dep’t 2020).3 More specifically, the court found that “with respect to

the charges of possessing a weapon and possessing an altered item[,] . . . the findings

of guilt as to those charges should be annulled and all references thereto expunged

from [Sylvester’s] institutional record on the ground that [he] was not present during all

of the search of [his] cell before the weapon was discovered.” Id., 186 A.D.3d at 1858.

As for the charges of excessive tobacco and drug possession, the Third Department

found that substantial evidence supported the findings of guilt. See id. But on

2 “Unlike an ordinary civil action . . . , the substantive scope of an Article 78

proceeding is limited.” Whitfield v. City of New York, 96 F.4th 504, 519 (2d Cir. 2024)

(citation modified); see Davis v. Halpern, 813 F.2d 37, 38 n.1 (2d Cir. 1987) (“In New

York, Article 78 is a method for challenging state administrative action.”). The only

questions that may be raised in an Article 78 proceeding are: (1) “whether the body or

officer failed to perform a duty enjoined upon it by law”; (2) “whether the body or officer

proceeded, is proceeding[,] or is about to proceed without or in excess of jurisdiction”;

(3) “whether a determination was made in violation of lawful procedure, was affected by

an error of law[,] or was arbitrary and capricious or an abuse of discretion, including

abuse of discretion as to the measure or mode of penalty or discipline imposed”; or (4)

“whether a determination made as a result of a hearing held, and at which evidence was

taken, pursuant to direction by law is, on the record, supported by substantial evidence.”

N.Y. C.P.L.R. § 7803.

3 The Third Department’s decision is a public record of which this Court may take

judicial notice on a motion to dismiss. See, e.g., Williams v. N.Y.C. Hous. Auth., 816 F.

App’x 532, 534 (2d Cir. 2020) (summary order) (concluding that “the district court did

not err in considering [the appellant’s] Article 78 petition and state court decision

because they were public records, and thus appropriate for judicial notice.” (citation

modified)); see also Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 75 (2d Cir.

1998) (“It is well established that a district court may rely on matters of public record in

deciding a motion to dismiss under Rule 12(b)(6), including case law and statutes.”).

November 12, 2020, the finding of drug possession was annulled in the “interest of

fairness due to an inconsistency in the manufacturer’s instructions pertaining to the

[drug] testing kit.” Docket Item 1 at ¶ 8 (citation modified).

All told, Sylvester spent a year in Elmira’s special housing unit and lost other

privileges based on findings of guilt on four charges, three of which were set aside.

LEGAL PRINCIPLES

Under Federal Rule of Civil Procedure 12(b), a case may be dismissed, among

other reasons, for “lack of subject matter jurisdiction” or for “failure to state a claim upon

which relief can be granted.” See Fed. R. Civ. P. 12(b)(1), (6).

“A case is properly dismissed for lack of subject matter jurisdiction under Rule

12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate

it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). “A plaintiff asserting

subject matter jurisdiction has the burden of proving by a preponderance of the

evidence that it exists.” Id. “Although courts hold pro se complaints to less stringent

standards than formal pleadings drafted by lawyers, pro se litigants still must establish

subject matter jurisdiction to proceed in federal court.” Harrison v. New York, 95 F.

Supp. 3d 293, 311 (E.D.N.Y. 2015) (citation modified).

A case may be dismissed for failure to state a claim under Rule 12(b)(6) if it does

not “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is

plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at

556). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for

more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting

Twombly, 550 U.S. at 556).

DISCUSSION

Sylvester brings claims under 42 U.S.C. §§ 1981, 1983, and 1985(3), as well as

intentional tort claims under New York law. See Docket Item 1 at 3-8. According to

Sylvester, the defendants injured him, discriminated against him, and deprived him of

his constitutional rights when they confined him to Elmira’s special housing unit without

due process. See id.

The defendants advance several arguments why Sylvester’s complaint should be

dismissed in its entirety. See Docket Item 14-1 at 5-16. First, they argue that the

section 1983 claims should be dismissed because Sylvester fails to plausibly allege a

deprivation of his constitutional rights under either the Fourth or Fourteenth

Amendment. See id. at 5-11. Second, they argue that the section 1981 and 1985(3)

claims should be dismissed because Sylvester does “not plead facts from which it can

be plausibly inferred that the [defendants’] conduct was motivated by racial animus.”

See id. at 11-13. And third, they argue that Sylvester’s intentional tort claims should be

dismissed because section 24 of New York’s Correction Law deprives this Court of

jurisdiction over those claims. See id. at 13-15.

As discussed below, the Court agrees with the defendants that Sylvester’s

section 1981, section 1985(3), and intentional tort claims should be dismissed. It also

agrees with the defendants that Sylvester’s section 1983 claims against Annucci,

Ripley, Ramirez, and Naida should be dismissed as well. But the Court disagrees with

the defendants regarding Sylvester’s section 1983 procedural due process claim

against Schadewald.

I. SECTION 1981

Section 1981 provides in relevant part that “all persons within the jurisdiction of

the United States shall have the same right in every State and Territory . . . to the full

and equal benefit of all laws and proceedings for the security of persons and property

as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties,

taxes, licenses, and exactions of every kind, and to no other.” 42 U.S.C. § 1981(a)

(citation modified). Section 1981 claims against state actors, however, may be pursued

only under section 1983. See Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 735 (1989)

(“The express action at law provided by [section] 1983 for the deprivation of any rights,

privileges, or immunities secured by the Constitution or laws[] provides the exclusive

federal damages remedy for the violation of the rights guaranteed by [section] 1981

when the claim is pressed against a state actor.” (citation modified)); Duplan v. City of

New York, 888 F.3d 612, 621 (2d Cir. 2018) (holding that section 1981 “does not

provide a separate private right of action [apart from section 1983] against state

actors.”).

There is no question that the defendants in this case are state actors. See, e.g.,

Baum v. N. Dutchess Hosp., 764 F. Supp. 2d 410, 428 (N.D.N.Y. 2011) (“Obviously,

state officials and state employees are considered state actors.”); see also Morris v.

NYS Dep’t of Corr. & Cmty. Supervision, 2024 WL 4252049, at *9 (N.D.N.Y. Sept. 20,

2024) (recognizing that DOCCS employees are state actors who may be sued under

section 1983). Sylvester’s section 1981 claims therefore are dismissed as duplicative of

his section 1983 claims.

II. SECTION 1983

“Section 1983 itself creates no substantive rights; it provides only a procedure for

redress for the deprivation of rights established elsewhere.” Sykes v. James, 13 F.3d

515, 519 (2d Cir. 1993) (citing City of Okla. City v. Tuttle, 471 U.S. 808, 816 (1985)).

“To state a valid claim under [section] 1983, the plaintiff must allege that the challenged

conduct (1) was attributable to a person acting under color of state law, and (2) deprived

the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the

United States.” Whalen v. County of Fulton, 126 F.3d 400, 405 (2d Cir. 1997).

In his complaint, Sylvester does not articulate claims under any specific

constitutional provision. See Docket Item 1 at 3-8. Given Sylvester’s pro se status,

however, the Court broadly construes his complaint to allege claims grounded in the

procedural due process and equal protection provisions of the Fourteenth Amendment.4

4 The defendants construe Sylvester’s complaint as also alleging a Fourth

Amendment claim. See Docket Item 14-1 at 9-11. But the Fourth Amendment does not

apply in this context because prisoners do not have a reasonable expectation of privacy

in their cells. See Hudson v. Palmer, 468 U.S. 517, 525-26 (1984); Covino v. Patrissi,

967 F.2d 73, 78 (2d Cir. 1992). The Court therefore does not construe Sylvester’s

complaint to allege a Fourth Amendment claim.

In his response to the defendants’ motion to dismiss, Sylvester makes passing

reference to the Eighth Amendment and the Supreme Court’s decision in Gregg v.

Georgia, 428 U.S. 153 (1976). See Docket Item 18 at ¶ 14 (asserting that “the Eighth

Amendment prohibits the unnecessary and wanton infliction of pain, including

punishments that are totally without penological justification.” (citation modified)). But

Sylvester does not suggest that the defendants “fail[ed] to provide for his basic human

needs—e.g., food, clothing, shelter, medical care, and reasonable safety,” see

DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 200 (1989) (citation

modified), or exposed him to conditions “pos[ing] an unreasonable risk of serious

damage to his future health,” see Helling v. McKinney, 509 U.S. 25, 35 (1993). Nor

See Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir. 2000) (“Courts must construe pro se

pleadings broadly[] and interpret them to raise the strongest arguments that they

suggest.” (citation modified)).

A. Procedural Due Process

The Fourteenth Amendment’s due process clause “prohibits states from

‘depriving any person of life, liberty, or property without due process of law.’” Matzell v.

Annucci, 64 F.4th 425, 436 (2d Cir. 2023) (citation modified) (quoting U.S. Const.

amend. XIV, § 1). “In a prison disciplinary hearing,[5] due process . . . provide[s] that at

a minimum, a prisoner is entitled to be confronted with the accusation, informed of the

evidence against him[,] and afforded a reasonable opportunity to explain his actions.”

Williams v. Korines, 966 F.3d 133, 143 (2d Cir. 2020) (citation modified). “More

specifically, an inmate must receive advance written notice of the charges against him;

a hearing affording him a reasonable opportunity to call witnesses and present

does he suggest that the defendants subjected him to conditions of confinement with a

“sufficiently culpable state of mind,”—that is, with “deliberate indifference to [his] health

or safety.” See Farmer v. Brennan, 511 U.S. 825, 834 (1994) (citation modified).

Rather, he asserts that he was punished without the process due to him and because of

his race. Therefore, the Court does not construe Sylvester’s complaint to allege a claim

under the Eighth Amendment.

5 “A prisoner’s liberty interest is implicated when an institution’s disciplinary

decision results in an ‘atypical and significant hardship . . . in relation to the ordinary

incidents of prison life.’” Luna v. Pico, 356 F.3d 481, 487 n.3 (2d Cir. 2004) (quoting

Sandin v. Conner, 515 U.S. 472, 484 (1995)). The defendants do not dispute that

Schadewald’s decision to confine Sylvester to Elmira’s special housing unit for a year

resulted in an “atypical and significant hardship” implicating Sylvester’s due process

rights. See generally Docket Item 14-1 at 6-8; Docket Item 19 at 2-4; see also Colon v.

Howard, 215 F.3d 227, 231 (2d Cir. 2000) (holding that “confinement in normal [special

housing unit] conditions for 305 days is . . . a sufficient departure from the ordinary

incidents of prison life to require procedural due process protections” (citation

modified)).

documentary evidence; a fair and impartial hearing officer; and a written statement of

the disposition, including the evidence relied upon and the reasons for the disciplinary

actions taken.” Id. (citation modified).

The complaint does not allege any procedural deprivations, but in response to

the defendants’ motion to dismiss,6 Sylvester asserts that Schadewald was not a fair

and impartial hearing officer because Schadewald “was on E Block outside [Sylvester’s]

cell while it was being frisked.” See Docket Item 18 at ¶ 7. DOCCS Directive 4932

prohibits individuals who witnessed, participated in, or investigated an incident giving

rise to a disciplinary hearing from presiding over that hearing. See N.Y. Comp. Codes

R. & Regs. tit. 7, § 254.1 (1990).7 So Sylvester says that his procedural due process

rights were violated when Schadewald refused to recuse himself as the disciplinary

hearing officer. See Docket Item 18 at ¶¶ 4, 13.

“An inmate subject to a disciplinary hearing is entitled to . . . an impartial hearing

officer.” Patterson v. Coughlin, 905 F.2d 564, 569-70 (2d Cir. 1990) (citing Wolff v.

McDonnell, 418 U.S. 539, 570-71 (1974)). On the other hand, “it is well recognized that

prison disciplinary hearing officers are not held to the same standard of neutrality as

adjudicators in other contexts.” Allen v. Cuomo, 100 F.3d 253, 259 (2d Cir. 1996)

(citation modified). In the Second Circuit’s view, “an impartial decisionmaker is one

6 Although “it is axiomatic that [a] [c]omplaint cannot be amended by the briefs in

opposition to a motion to dismiss,” Jordan v. Chase Manhattan Bank, 91 F. Supp. 3d

491, 500 (S.D.N.Y. 2015) (citation modified), “a district court deciding a motion to

dismiss may consider factual allegations made by a pro se party in his papers opposing

the motion,” Walker v. Schult, 717 F.3d 119, 122 n.1 (2d Cir. 2013) (citation modified).

7 A court may take judicial notice of a DOCCS directive on a motion to dismiss.

See, e.g., Young v. Corcoran, 164 F. Supp. 3d 419, 420-21 (W.D.N.Y. 2016).

who . . . does not prejudge the evidence and who cannot say . . . how he would assess

evidence he has not yet seen.” Patterson, 905 F.2d at 570.

Viewing the factual allegations in the light most favorable to Sylvester, as this

Court must on a motion to dismiss, see Iqbal, 556 U.S at 678, Schadewald either

witnessed or participated in the searches of Sylvester’s cell and thus had personal

knowledge about what was found. See Docket Item 18 at ¶ 7. But Schadewald

nevertheless refused to recuse himself as Sylvester’s disciplinary hearing officer even

though DOCCS Directive 4932 precluded his serving in that capacity. See id. at ¶¶ 4,

13. Moreover, Sylvester was punished for possessing a weapon and an altered item,

but those items were found during a search that a state court concluded was improper

for some reason. See In re Sylvester, 186 A.D.3d at 1858. At this stage, that is enough

to suggest that Schadewald had “prejudge[d] the evidence” against Sylvester at the

disciplinary hearing and accordingly was not a fair and impartial hearing officer. See

Patterson, 905 F.2d at 570. Sylvester therefore has plausibly alleged a procedural due

process claim against Schadewald.

But Sylvester’s remaining procedural due process claims do not pass muster. It

is not enough that Annucci denied Sylvester’s disciplinary appeal. See, e.g., Brown v.

Annucci, 2021 WL 860189, at *9 (S.D.N.Y. Mar. 8, 2021) (concluding that a denial of a

prison disciplinary appeal alone is insufficient to establish personal involvement for

purposes of a procedural due process claim); see also Tangreti v. Bachmann, 983 F.3d

609, 618 (2d Cir. 2020) (holding that “a plaintiff must plead and prove ‘that each

Government-official defendant, through the official’s own individual actions, has violated

the constitution.’” (quoting Iqbal, 556 U.S. at 676)). Nor is it enough that Ripley,

Ramirez, or Naida might have planted evidence Sylvester’s cell, filed false misbehavior

reports, and then lied to Schadewald during Sylvester’s disciplinary hearing. See

Mitchell v. Senkowski, 158 F. App’x 346, 349 (2d Cir. 2005) (summary order) (“The

issue of false misbehavior reports and provision of false testimony against an inmate by

corrections officers is insufficient on its own to establish a denial of due process[;]

[r]ather, such action violates due process only where either procedural protections were

denied that would have allowed the inmate to expose the falsity of the evidence against

him, or where the fabrication of evidence was motivated by a desire to retaliate for the

inmate’s exercise of his substantive constitutional rights.” (citation modified)).

Accordingly, Sylvester has failed to plausibly allege procedural due process claims

against Annucci, Ripley, Ramirez, or Naida.

B. Equal Protection

The Fourteenth Amendment’s equal protection clause “prohibits states ‘from

deny[ing] to any person within [their] jurisdiction the equal protection of the laws.’”

Chinese Am. Citizens Alliance of Greater N.Y. v. Adams, 116 F.4th 161, 170 (2d Cir.

2024) (quoting U.S. Const. amend. XIV, § 1). That clause’s “‘central purpose is to

prevent the States from purposefully discriminating between individuals on the basis of

race.’” Id. (quoting Shaw v. Reno, 509 U.S. 630, 642 (1993)).

“An individual may assert either a ‘class of one’ or a ‘selective enforcement’

equal protection claim.” Jones v. Cuomo, 542 F. Supp. 3d 207, 223 (S.D.N.Y. 2021).

“Under either theory, an individual must demonstrate that he was treated differently from

other [similarly situated] individuals.” Id. (citing Bizzarro v. Miranda, 394 F.3d 82, 86 (2d

Cir. 2005)); see Hu v. City of New York, 927 F.3d 81, 93 (2d Cir. 2019) (“While [a class

of one claim] requires an extremely high degree of similarity between a plaintiff and a

comparator, [a selective enforcement claim] merely requires a reasonably close

resemblance between a plaintiff’s and comparator’s circumstances.” (citation modified)).

Sylvester alleges the defendants denied him equal protection of the law by

confining him to Elmira’s special housing unit because of his race. See Docket Item 1

at ¶¶ 11-13. But Sylvester does not articulate any facts from which a reasonable juror

could reach that conclusion. For example, he does not point to white prisoners who

were treated differently or other prisoners whose possession of contraband resulted in

lesser penalties. See, e.g., A’Gard v. Perez, 919 F. Supp. 2d 394, 406 (S.D.N.Y. 2013)

(dismissing equal protection claims as wholly conclusory where amended complaint

“state[d] no facts demonstrating that the plaintiff was treated differently from similarly

situated inmates who violated prison regulations.”); see also Hu, 927 F.3d at 91 (“A

plaintiff cannot merely rest on a demonstration of different treatment . . . [but] must

prove that the disparate treatment was caused by the impermissible motivation.”

(citation modified)). Sylvester therefore has failed to state a viable equal protection

claim.

III. SECTION 1985

Section 1985(3) provides that “if two or more persons in any State or Territory

conspire . . . , for the purpose of depriving, either directly or indirectly, any person or

class of persons of the equal protection of the laws, or of equal privileges and

immunities under the laws . . . the party so injured or deprived may have an action for

the recovery of damages occasioned by such injury or deprivation, against any one or

more of the conspirators.” 42 U.S.C. § 1985(3) (citation modified). To state a claim

under section 1985(3), “a plaintiff [must] allege: 1) a conspiracy; 2) for the purpose of

depriving, either directly or indirectly, any person or class of persons of the equal

protection of the laws, or of equal privileges and immunities under the laws; and 3) an

act in furtherance of the conspiracy; 4) whereby a person is either injured in his person

or property or deprived of any right or privilege of a citizen of the United States.” Dolan

v. Connolly, 794 F.3d 290, 296 (2d Cir. 2015) (citation modified). Further, “the

conspiracy must also be motivated by some racial or perhaps otherwise class-based,

invidious discriminatory animus.” Id. (citation modified).

Sylvester’s section 1985(3) claims here are barred by the intracorporate

conspiracy doctrine, however. See Girard v. 94th St. & Fifth Ave. Corp., 530 F.2d 66,

70-72 (2d Cir. 1976); Warr v. Liberatore, 270 F. Supp. 3d 637, 651 (W.D.N.Y. 2017).

“Under the intracorporate conspiracy doctrine, the officers, agents, and employees of a

single corporate entity, each acting within the scope of [his or] her employment, are

legally incapable of conspiring together.” Little v. City of New York, 487 F. Supp. 2d

426, 441-42 (S.D.N.Y. 2007) (citation modified). In other words, “the intracorporate

conspiracy doctrine bars conspiracy claims against employees of entities such as

DOCCS (when those employees are alleged to have conspired solely with each other)

unless, pursuant to the doctrine’s ‘scope of employment’ exception, the employees were

pursuing personal interests wholly separate and apart from the entity by whom they

were employed.” Richard v. Fischer, 38 F. Supp. 3d 340, 353 (W.D.N.Y. 2014) (citation

modified) (collecting cases).

Sylvester does not allege that any of the defendants had a personal interest in

ensuring his confinement to Elmira’s special housing unit, so he cannot take advantage

of the scope of employment exception to the intracorporate conspiracy doctrine. See,

e.g., Vega v. Artus, 610 F. Supp. 2d 185, 206 (N.D.N.Y. 2009) (dismissing section

1985(3) claims against DOCCS employees as barred by the intracorporate conspiracy

doctrine where the plaintiff “d[id] not allege facts plausibly suggesting that each [of the

defendants] possessed an independent personal purpose, but merely allege[d] that their

actions were motivated by their personal bias against homosexuality.”). As such,

Sylvester’s section 1985(3) claims are dismissed.

IV. INTENTIONAL TORTS

Section 24 of New York’s Correction Law provides that “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 [DOCCS] . . . , in his or her 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.” N.Y.

Correct. L. § 24(1) (citation modified). The statute further provides that “any claim for

damages arising out of any act done or the failure to perform any act within the scope of

employment 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.” Id.

§ 24(2) (citation modified). “This provision, by its plain terms, precludes the assertion of

[state law] claims against corrections officers in any court, including the federal courts.”

Baker v. Coughlin, 77 F.3d 12, 15 (2d Cir. 1996); see Hassell v. Fischer, 96 F. Supp. 3d

370, 385 (S.D.N.Y. 2015) (“The Second Circuit has held that [section 24 of New York’s

Correction Law] prevents federal courts from exercising pendent jurisdiction over state

law claims appended to federal claims brought pursuant to 42 U.S.C. § 1983.”).

Sylvester alleges that the defendants wrongfully caused his confinement to

Elmira’s special housing unit, “thereby committing intentional torts actionable under New

York . . . law.” See Docket Item 1 at 5 (citation modified). But section 24 of New York’s

Correction Law deprives this Court of jurisdiction to consider those state law claims

because Sylvester cannot reasonably contend that the defendants acted outside the

scope of their employment with DOCCS. See, e.g., Cruz v. New York, 24 F. Supp. 3d

299, 309-10 (W.D.N.Y. 2014) (dismissing assault and battery claims stemming from

allegedly unprovoked attack by two DOCCS officers as barred by section 24 of New

York’s Correction Law); see also Cepeda v. Coughlin, 513 N.Y.S.2d 528, 128 A.D.2d

995, 997 (3d Dep’t 1987) (“Custody and control of inmates and the maintenance of

prison safety and security are the primary duties and responsibilities of correction

officers.”). Sylvester’s state law intentional tort claims therefore are dismissed.

V. LEAVE TO AMEND

Finally, the Court considers whether it sua sponte should grant Sylvester leave to

amend his complaint. See, e.g., Brown v. Rotenberg, 268 F. Supp. 3d 445, 451

(W.D.N.Y. 2017). A pro se complaint “should not be dismissed without granting leave to

amend at least once when a liberal reading of the complaint gives any indication that a

valid claim might be stated.” Shomo v. City of New York, 579 F.3d 176, 183 (2d Cir.

2009) (citation modified). “Leave to amend need not be granted, however, where the

proposed amendment would be futile.” Advanced Magnetics, Inc. v. Bayfront Partners,

Inc., 106 F.3d 11, 18 (2d Cir. 1997) (citation modified); see Huang v. iTV Media, Inc., 13

F. Supp. 3d 246, 264 (E.D.N.Y. 2014) (“An amendment is considered futile if it could not

defeat a motion to dismiss for failure to state a claim or for lack of subject matter

jurisdiction.”).

Granting Sylvester leave to amend his section 1981 claims would be futile here

because he may not pursue those claims against the individual defendants given the

availability of section 1983. See, e.g., Gonzalez v. City of New York, 377 F. Supp. 3d

273, 285 (S.D.N.Y. 2019). The same is true regarding Sylvester’s state law intentional

tort claims over which this Court lacks jurisdiction. See, e.g., Brown v. Dep’t of Corr.

Servs., 2011 WL 2182775, at *8-9 (W.D.N.Y. June 2, 2011). But granting Sylvester

leave to amend his section 1983 and 1985(3) claims would not be futile because he

may be able to articulate facts that would allow those claims to survive a motion to

dismiss. See Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991)

(explaining that courts “should not dismiss [a] complaint for failure to state a claim

‘unless it appears beyond doubt that the plaintiff can prove no set of facts in support of

his claim which would entitle him to relief,’ and it should not deny leave to file a

proposed amended complaint unless that same rigorous standard is met.” (citation

modified) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957))). Accordingly, the

Court grants Sylvester leave to amend his section 1983 and 1985(3) claims to correct

any deficiencies addressed above if he wishes to do so.8

8 Sylvester is advised that should he choose to file an amended complaint, he

must reallege his section 1983 procedural due process claim against Schadewald

because “it is well established that an amended complaint . . . supersedes the original

and renders it of no legal effect.” See Int’l Controls Corp. v. Vesco, 556 F.2d 665, 668

(2d Cir. 1997) (citation modified).

CONCLUSION

For the reasons stated above, the defendants’ motion to dismiss, Docket Item 14,

is GRANTED in part and DENIED in part. Sylvester’s section 1981(a), section 1985(3),

and intentional tort claims, as well as his section 1983 claims against Annucci, Ripley,

Ramirez, and Naida, are dismissed. But Sylvester may file an amended complaint

within 30 days of the date of this decision and order. If Sylvester does not file an

amended complaint within 30 days, then his section 1983 procedural due process claim

against Schadewald will proceed to discovery.

SO ORDERED.

Dated: September 30, 2025

Buffalo, New York

/s/ Lawrence J. Vilardo

LAWRENCE J. VILARDO

UNITED STATES DISTRICT JUDGE