New York Civil Rights & Criminal Defense Lawyers

Scope of Employment After Rivera: A Case Study

The New York Court of Appeals, in deciding Rivera v. State, 34 N.Y.3d 383 (2019), altered how pro se litigants and attorneys approach the “scope of employment” issue in prison cases. The following case examines the impact of the Rivera decision.

In March of 2020, an inmate (our client: I’ll call him John Doe 2) housed in a New York State correctional facility alleged that correctional officers took him to an area without video surveillance and brutally assaulted him. Mr. Doe was slammed into a wall, punched multiple times across the face, choked, kicked, and pepper sprayed. During this incident, he tried to minimize the blows to his body but did not resist in any other way. He claimed that the attack was retaliatory: he had previously filed multiple grievances for intercepting packages against the correction officer that led the assault. Mr. Doe repeatedly asserted that he did nothing to warrant this excessive use of force: the officers started attacking him while escorting him to attend a mental health program. While egregious, these assertions invite The State to assert an affirmative defense of “outside the scope of employment”.

Riviello v. Waldron, 47 N.Y.2d 297 (1979) set the standard for determining whether an employee acted within the scope of their employment. The factors considered in Riviello were, “the connection between the time, place and occasion for the act; the history of the relationship between employer and employee as spelled out in actual practice; whether the act is one commonly done by such an employee; the extent of departure from normal methods of performance; and whether the specific act was one that the employer could reasonably have anticipated.”

Rivera further clarified the standard as applied to prison cases: if a correction officer violently beats and assaults an inmate for a personal reason ––not to further the objectives of the State––the State will not be liable under respondeat superior: the correction officer’s tort would be deemed outside the scope of employment. In Mr. Doe’s case, the correction officers dispute his assertion that the use of force was unwarranted, and claim that Mr. Doe punched an officer, which led to the use of force. Interestingly, the correction officers’ official report, that the use of force was in response to the inmate’s misconduct, would more likely render the State of New York liable, whereas Mr. Doe’s version of events could lead to a dismissal in his action against The State, leaving only an action against the individual officers as a way to recover damages. In the event that Mr. Doe prevails against the individual officers, he can recover damages in one of three ways: (1) the State can indemnify the officers, (2) the officer’s union can make a financial contribution to satisfy the judgment, or (3) the officers can make a direct payment.

The Rivera decision has created for pro se inmate litigants a mine field of legal obstacles that even sophisticated jailhouse lawyers will have difficulty navigating. The attorneys at Sivin, Miller & Roche, LLP receive dozens of letters and calls per week from inmates who have been abused. Since we can only take a limited number of cases, many inmates are left to pursue their claim pro se. It is our hope that the Court of Appeals will recognize the ramifications of its 4-3 decision in Rivera and adopt the reasoning of the three dissenting judges in future cases.

I will follow-up on Mr. Doe’s case in later blogs.


By: Lauren Ju,

Legal Intern

Sivin, Miller & Roche LLP




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