Harty v. Rockefeller, 71 Civ. 3567.
| Decision Date | 18 January 1972 |
| Docket Number | No. 71 Civ. 3567.,71 Civ. 3567. |
| Citation | 338 F. Supp. 367 |
| Parties | Michael J. HARTY, Plaintiff, v. Hon. Nelson A. ROCKEFELLER, Governor of the State of New York, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Michael J. Harty, pro se.
Louis J. Lefkowitz, Atty. Gen., for defendant; Michael Colodner, New York City, of counsel.
Michael Harty, the plaintiff pro se, won a notable victory in the New York Court of Appeals when that Court granted him, then a State prisoner, habeas corpus relief, holding that "a long and unnecessary failure to sentence is not only an error but results in lack of jurisdiction." People ex rel. Harty v. Fay, 10 N.Y.2d 374, 379, 223 N.Y.S.2d 468, 472, 179 N.E.2d 483, 485 (1961).
After his release on the writ, the petitioner then filed a timely complaint in the State Court of Claims against the State of New York for damages for his illegal detention from November 20, 1959 to December 19, 1961. He there had a short-lived victory, but the judgment was reversed, and his complaint was dismissed. Harty v. State of New York, 52 Misc.2d 255, 275 N.Y.S.2d 735 (Ct.Cl.1966), rev'd, 29 A.D.2d 243, 287 N.Y.S.2d 306 (3rd Dept.1968), aff'd, 27 N.Y.2d 698, 314 N.Y.S.2d 14, 262 N.E.2d 220 (1970).
He now sues Nelson A. Rockefeller, Governor of the State, for damages in the amount of $100,000 for his unlawful detention. The suit is apparently brought under the Civil Rights Act (42 U.S.C. §§ 1983, 1985). There is no allegation of any act by the Governor himself or of any knowledge by the Governor of Harty's sentence, imprisonment or release. The Governor moves to dismiss the complaint (Fed.R.Civ.P. Rule 12(b)).
It is, of course, quite settled that while the Governor of a State may be a whipping boy in the press, or even with the electorate for things done or omitted by his appointees of which he had no personal knowledge, that does not hold true in a court of law.
Unless the Governor himself did some specific act that was wrong, there is no personal liability for State acts on the theory of respondeat superior for which relief can be had under 42 U.S.C. § 1983. See Sostre v. McGinnis, 442 F.2d 178, 205 (2 Cir. 1971); Fields v. Rockefeller, Pro Se, 71 Civ. 2304 (S.D.N.Y. Nov. 19, 1971); Palermo v. Rockefeller, 323 F.Supp. 478, 483 (S.D.N.Y.1971).
Nor can the complaint be sustained if it is construed to be against the State of New York. For a State is not a proper defendant under the Civil Rights Act, since it is not a "person" within the meaning of Section 1983. Zuckerman v. Appellate Division, 421 F. 2d 625 (2 Cir. 1970); Fear v. Commonwealth of Pennsylvania, 413 F.2d 88 (3 Cir.), cert. denied, 396 U.S. 935, 90 S.Ct. 278, 24 L.Ed.2d 234 (1969); Williford v. California, 352 F.2d 474, 476 (9 Cir. 1965).
It is, therefore, unnecessary to consider the contention that the action is time-barred.*
The motion to dismiss the complaint is granted.
* The action was commenced August 11, 1971. The plaintiff's release occurred on December 19,...
To continue reading
Request your trial
-
Turner v. Baxley
...of Philadelphia, 413 F.2d 84, 86 (3rd Cir. 1969), cert. denied 396 U.S. 1046, 90 S.Ct. 696, 24 L.Ed.2d 691 (1970); Harty v. Rockefeller, 338 F. Supp. 367, 368 (S.D.N.Y.1972). See also, Monroe v. Pape, 365 U.S. 167, 191, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). Unless the State of Vermont has wai......
-
Johnson v. Glick
...that "responsibility for permitting such conditions to exist was ultimately, in any event, squarely his." See also Harty v. Rockefeller, 338 F. Supp. 367 (S.D.N.Y.1972); (Gurfein, J.). Adams v. Pate, 445 F.2d 105, 107 & n. 2 (7 Cir. 1971), and a dictum in Dunham v. Crosby, 435 F.2d 1177, 11......
-
Lathan v. Oswald
...denied, 404 U.S. 1049, 92 S.Ct. 719, 30 L.Ed.2d 740 (1972) and 405 U.S. 978, 92 S.Ct. 1190, 31 L.Ed.2d 254 (1972); Harty v. Rockefeller, 338 F.Supp. 367 (S.D.N.Y.1972); Palermo v. Rockefeller, 323 F.Supp. 478 (S.D.N.Y.1971); Salazar v. Dowd, 256 F.Supp. 220 (D.Colo. 1966); Jordan v. Kelly, ......
-
KEYSTONE COL. SERV., INC. v. CMWLTH. OF PUERTO RICO
...of Puerto Rico. A state is not a proper defendant under this section since it is not a person within this section. Harty v. Rockefeller (D.C.N.Y.1972), 338 F.Supp. 367. A state is body politic and not a person amenable to suit under this section. Shapiro v. State of Maryland (D. C.Md.1972),......