Prisco v. State of NY, 91 Civ. 3990 (RLC).

• Citation: 804 F. Supp. 518
• Decision Date: 03 September 1992
• Docket Number: No. 91 Civ. 3990 (RLC).,91 Civ. 3990 (RLC).
• Parties: Thomas PRISCO and Filomena Prisco, Plaintiffs, v. The STATE OF NEW YORK; New York State Department of Environmental Conservation; Thomas C. Jorling, as Commissioner of the New York State Department of Environmental Conservation; State of New York Organized Crime Task Force; Ronald Goldstock, as Director of State of New York Organized Crime Task Force; John W. Murray and William E. Bubenicek, as employees of Division of Law Enforcement, Bureau of Environmental Conservation Investigation, New York State Department of Environmental Conservation; New York State Police; Thomas A. Constantine, as Superintendent of New York State Police; Lloyd F. Ward, as an employee of the New York State Police; James LaBate; Angelo Anthony Calvello; A-1 Carting, Inc.; A-1 Compaction Corp.; A-1 Compaction, Inc.; Greene Refuse Service; A & D Carting Corp.; A.F.C. Transfer, Inc. a/k/a A.F.C. Transfer Corp.; A.F.C. Container Service, Inc.; A.F.C. Carting, Inc.; A & M Bros., Inc.; American Disposal Services, Inc.; Black Meadow Construction, Inc.; John Danna & Sons, Inc.; Gunhill Trucking, Ltd.; Suburban Carting Corp.; Tri-State Trucking Corp., and other, if any, waste depositors who entered plaintiffs' property, whose names are presently unknown, Defendants.
• Court: U.S. District Court — Southern District of New York

804 F. Supp. 518

Thomas PRISCO and Filomena Prisco, Plaintiffs, v. The STATE OF NEW YORK; New York State Department of Environmental Conservation; Thomas C. Jorling, as Commissioner of the New York State Department of Environmental Conservation; State of New York Organized Crime Task Force; Ronald Goldstock, as Director of State of New York Organized Crime Task Force; John W. Murray and William E. Bubenicek, as employees of Division of Law Enforcement, Bureau of Environmental Conservation Investigation, New York State Department of Environmental Conservation; New York State Police; Thomas A. Constantine, as Superintendent of New York State Police; Lloyd F. Ward, as an employee of the New York State Police; James LaBate; Angelo Anthony Calvello; A-1 Carting, Inc.; A-1 Compaction Corp.; A-1 Compaction, Inc.; Greene Refuse Service; A & D Carting Corp.; A.F.C. Transfer, Inc. a/k/a A.F.C. Transfer Corp.; A.F.C. Container Service, Inc.; A.F.C. Carting, Inc.; A & M Bros., Inc.; American Disposal Services, Inc.; Black Meadow Construction, Inc.; John Danna & Sons, Inc.; Gunhill Trucking, Ltd.; Suburban Carting Corp.; Tri-State Trucking Corp., and other, if any, waste depositors who entered plaintiffs' property, whose names are presently unknown, Defendants.

No. 91 Civ. 3990 (RLC).

United States District Court, S.D. New York.

September 3, 1992.

Reardon & Sclafani, Yonkers (Michael V. Sclafani of counsel), for plaintiffs.

Robert Abrams Atty. Gen. Environmental Protection Bureau, New York City (Stuart Miller, Gregory J. Nolan, of counsel), for defendants.

ROBERT L. CARTER, District Judge.

Plaintiffs Thomas and Filomena Prisco own land in Putnam County, New York, that has been contaminated with hazardous waste. In this action they have sued the State of New York, its Department of Environmental Conservation, various other state agencies, officials, and private companies, to recover for damages to their property and to enjoin all the defendants to restore the property to a safe condition. The case is before the court on plaintiffs' motion to disqualify the Attorney General's office from representing two of the state officials, and on the summary judgment motion of the state defendants.¹

The controversy centers around the Prisco's land in Patterson, New York, where a landfill was operated for several months in 1987 and 1988. Plaintiffs claim that in August, 1987, they were approached by defendants William Bubenicek, who represented himself as a law enforcement officer for the New York State Department of Environmental Conservation ("NYDEC"), and Lloyd Ward, a New York State Police Officer. Bubenicek and Ward sought to establish a construction and demolition landfill on the plaintiffs' property, to be run by NYDEC. Plaintiffs assert that they agreed to allow the landfill on their property, and that Bubenicek and Ward operated the landfill facility on plaintiffs' property, allegedly on behalf of and with the authorization of defendant NYDEC.

Plaintiffs further assert that NYDEC, in conjunction with the New York Organized Crime Task Force ("OCTF") and the other state defendants, was actually engaged in a "sting" operation on the property in an attempt to gain information about the waste hauling industry in the area. During this sting operation, the private corporate defendants, allegedly at the direction of the state defendants, deposited hazardous waste materials on plaintiffs' property. These hazardous wastes polluted the soil and water on plaintiffs' property, and this lawsuit followed.

I. PLAINTIFFS' MOTION TO DISQUALIFY ATTORNEY GENERAL'S OFFICE

Plaintiffs seek to disqualify the Attorney General's office from representing Bubenicek and Ward in this action because of a conflict between the officers' interests on the one hand and those of the other state defendants on the other. Plaintiffs argue that, given this conflict, the Attorney General's office cannot represent all the state defendants consistent with its ethical obligations under Canons Five and Nine of the ABA Code of Professional Responsibility. While plaintiffs have indeed identified a conflict, it involves non-parties to this action, and accordingly does not require disqualification of the Attorney General's office.

The allegedly significant conflict arises because of directly opposing arguments that would likely be advanced by the state defendants and Bubenicek and Ward as individual defendants to this action. The central controversy in this case concerns whether Bubenicek and Ward took the alleged actions on the Prisco property as individuals or as agents of the state. If Bubenicek and Ward were acting as individuals, the state will likely escape liability for the damages they allegedly caused to plaintiffs' property. If, however, their actions were taken within the scope of their employment or are otherwise attributable to the state, the state will be liable for the damages and recovery effort. Accordingly, the state has an incentive to argue that Bubenicek and Ward did not act with authorization from the state, and that their actions do not give rise to state liability. Bubenicek and Ward, on the other hand, have an incentive to argue that the actions they took at the Prisco site were within the scope of their employment and/or were attributable to the state. See Dunton v. County of Suffolk, 729 F.2d 903, 906-07 (2d Cir.1984) (discussing conflicting incentives and disqualification in this context). This conflict, in plaintiffs' view, requires disqualification of the Attorney General from representing both Bubenicek and Ward and the other state defendants.

Plaintiffs fail to distinguish, however, between conflicts involving Bubenicek and Ward in their individual capacities and those involving the officers in their official capacities. These two defendants will be personally liable for the damage inflicted on plaintiffs' property, and the conflict plaintiffs point to will indeed exist, if Bubenicek and Ward are joined in the suit in their individual capacities. Where a public official is sued solely in his official capacity, however, no such conflict can exist, because only one type of liability is alleged. See Katz v. Morgenthau, 709 F.Supp. 1219, 1229 (S.D.N.Y.1989) (Motley, J.) ("a conflict of interest does not exist where only the liability of the government entity by whom the public official is employed is at issue.").

The capacity in which Bubenicek and Ward have been sued in this case is therefore crucial to plaintiffs' disqualification motion. While the court has previously expressed its view that Bubenicek and Ward have been sued only in their official capacities in this litigation, see Prisco v. State of New York, et al., No. 91 Civ. 3990, Apr. 22, 1992, slip op. at 16, 1992 WL 88165, the following more thorough investigation of the issue is warranted given plaintiffs' motion. The Supreme Court has explained the distinction between official and individual or personal capacity suits as follows:

Personal-capacity suits seek to impose personal liability upon a government official for actions he takes under color of state law. Official-capacity suits, in contrast, generally represent only another way of pleading an action against an entity of which an officer is an agent. As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity. It is not a suit against the official personally, for the real party in interest is the entity.

Kentucky v. Graham, 473 U.S. 159, 165-66, 105 S.Ct. 3099, 3105, 87 L.Ed.2d 114 (1985) (citations omitted). The Court further noted that, "in many cases, the complaint will not clearly specify whether officials are sued personally, in their official capacities, or both. `The course of proceedings' in such cases typically will indicate the nature of the liability sought to be imposed." Id. at 167 n. 14, 105 S.Ct. at 3105 n. 14 (quoting Brandon v. Holt, 469 U.S. 464, 469, 105 S.Ct. 873, 876, 83 L.Ed.2d 878 (1985)).

In this case, however, the complaint is quite clear that Bubenicek and Ward have been sued only in their official capacities. Both the caption of the complaint and the allegations contained in its body support this conclusion. While the caption is not normally determinative of the identity of the parties or the pleader's statement of claim, see Greenwood v. Ross, 778 F.2d 448, 452 (8th Cir.1985); 5 Charles A. Wright and Arthur R. Miller, Federal Practice & Procedure, § 1321 (2d ed. 1990), it nevertheless is helpful in this and many other cases. Here, the caption names as defendants "WILLIAM E. BUBENICEK, as employee of Division of Law Enforcement, Bureau of Environmental Conservation Investigation, New York State Department of Environmental Conservation" and "LLOYD F. WARD, as an employee of the New York State Police." These allegations clearly invoke the official positions of Bubenicek and Ward, leaving out their individual capacities.

Further evidence of the official nature of the suit against Bubenicek and Ward is found in the body of the amended complaint, which reads as follows:

¶ 13 The defendant, WILLIAM E. BUBENICEK, ... was an employee of the defendant STATE and a law enforcement officer with the Division of Law Enforcement, Bureau of Environmental Conservation Investigation of the defendant NYDEC.

¶ 14 Defendant, WILLIAM E. BUBENICEK, on behalf of the defendant STATE and the defendant NYDEC, while within the scope and authority of his employment as a law enforcement officer with defendant NYDEC, under the appearance of operating a lawful and legitimate construction and demolition landfill facility on plaintiffs' property, intentionally, negligently and recklessly targeted, caused, conducted, established, solicited, promoted and participated in and allowed a covert "sting" or "informant" or "information gathering" operation on plaintiffs' property, without plaintiffs'

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