Opinion
5:20-cv-00535 (BKS/TWD)
08-24-2022
CHRISTOPHER CREMEANS, Plaintiff, v. PO DANIEL MILLER, PO PATRICK BENNETT, and PO BRIAN MAHAR, Defendants.[1]
CHRISTOPHER CREMEANS Plaintiff, pro se HON. LETITIA JAMES ADRIENNE J. KERWIN, ESQ. Attorney General for the State of New York STACEY A. HAMILTON, ESQ. Counsel for Defendants Assistant Attorney General
CHRISTOPHER CREMEANS Plaintiff, pro se
HON. LETITIA JAMES ADRIENNE J. KERWIN, ESQ.
Attorney General for the State of New York STACEY A. HAMILTON, ESQ.
Counsel for Defendants Assistant Attorney General
REPORT-RECOMMENDATION AND ORDER
THÉRÈSE WILEY DANCKS, UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
This matter has been referred for a report and recommendation by the Hon. Brenda K. Sannes, United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). Christopher Cremeans (“Plaintiff”) brings this pro se civil rights action against Parole Officer (“PO”) Daniel Miller, PO Patrick Bennett, and PO Brian Maher (together “Defendants”) asserting claims pursuant to 42 U.S.C. § 1983 for violations of his First and Fourteenth Amendment rights while a parolee on post-release supervision by the New York State Department of Corrections and Community Supervision (“DOCCS”). (Dkt. No. 1.)
Presently before the Court is Defendants' motion for summary judgment seeking dismissal of the complaint in its entirety, along with a request to seal certain exhibits in support thereof. (Dkt. Nos. 37, 38.) Plaintiff opposes the motion. (Dkt. Nos. 40, 41.) For the reasons set forth below, Defendants' motion to seal is denied and it is recommended that Defendants' motion for summary judgment be granted in part and denied in part.
Defendants request to seal Dkt. No. 38-5, Exhibit B to Knapp Declaration, Bates Nos. 000001-000156 and Dkt. No. 38-7, Exhibit A to Miller Declaration, Bates Nos. 001-082. (Dkt. No. 37.)
Plaintiff's opposition submission includes a CD labeled “Parole Hearing”. (Dkt. No. 42.)
The facts are drawn from Defendants' statement of material facts, (Dkt. No. 38-2), Plaintiff's response thereto, (Dkt. No. 41), and the attached affidavits, declarations, exhibits, and depositions. Additional facts are drawn from the verified complaint. (Dkt. No. 1.) The facts are taken in the light most favorable to Plaintiff. Gilles v. Repicky, 511 F.3d 239, 243 (2d Cir. 2007).
Plaintiff is a convicted sex offender who, in November 2005, pled guilty in New Hampshire Superior Court, Hillsborough County, to two counts of aggravated felonious sexual assault and two counts of endangering the welfare of a child, for which he was given an indeterminate prison sentence of seventeen and one-half to thirty-five years. (Dkt. No. 38-2 at ¶¶ 1, 2; Dkt. No. 1 at ¶ 7.) Plaintiff confessed to committing the crimes in New Hampshire between the years of 1995 to 1998. (Dkt. No. 38-2 at ¶ 2.)
The victims of Plaintiff's crimes are BM (born in 1989) and RM (born in 1990). Id. at ¶ 3. KC is the biological mother of BM and RM. Id. at ¶ 4. Plaintiff and KC married in 1994, separated in 1997, and divorced in 2000. Id. at ¶ 5. Plaintiff is not the biological or adoptive father of BM or RM. Id. at ¶ 6. BM has a son, AM (born in 2006). Id. at ¶ 7.
To protect the identities of the crime victims, the Court refers to certain individuals by first and last initial. See also Part III.A., infra.
On June 20, 2019, the New Hampshire Adult Parole Board conducted a parole hearing and, as a result, Plaintiff was granted parole. Id. at ¶ 9. With the granting of parole, Plaintiff was required to comply with several conditions and restrictions set by the New Hampshire Adult Parole Board. Id. at ¶ 10.
As noted, Plaintiff included an audio recording of the parole hearing. (Dkt. No. 42.)
After parole was granted, Plaintiff requested a transfer from New Hampshire to New York under the Interstate Compact for Adult Offender Supervision (“ICAOS”). Id. at ¶ 12.
Plaintiff signed the application on July 19, 2019, which states, in relevant part:
I understand that my supervision in another state may be different than the supervision I would be subject to in this state, and that the receiving state will determine the manner in which I will be supervised. I agree to accept any differences that may exist because I believe that transferring my supervision to New York (receiving state) will improve my chances for making a good adjustment in the community. I FULLY UNDERSTAND AND ACKNOWLEDGE ALL OF THE ABOVE CONDITIONS AND FREELY AND KNOWINGLY WAIVE ANY CHALLENGE TO THESE REQUIREMENTS OF TRANSFER, INCLUDING THE CONDITIONS OF SUPERVISION IN THE STATE TO WHICH I REQUEST TRANSFER.
In support of my application for transfer I make the following statements:
1. I will comply with the terms and conditions of my supervision that have been placed on me, or that will be placed on me by New Hampshire (sending state) and New York (receiving state).
2. I understand that if I do not comply with all the terms and conditions that the sending state or the receiving state, or both, placed on me, that it will be considered a violation and there may be consequences including return to the sending state.(Dkt. No. 38-6 (“Miller Decl.”), Exhibit A, Bates p. 001; see also Dkt. No. 38-2 at ¶¶ 14, 15, 16.) Plaintiff's application was granted and he was transferred to parole supervision in New York in August 2019. (Dkt. No. 38-2 at ¶ 17.)
Defendants are employed by DOCCS as parole officers at the Syracuse Metro Parole Office. Id. at ¶¶ 19, 35, 48. Their job duties include, among other things, supervising parolees, establishing special conditions of release to community supervision, and monitoring compliance with parole conditions/special conditions. Id. at ¶¶ 22, 38, 51. Defendants perform their job duties under the supervision of Senior Parole Officer (“SPO”) John Snyder. Id. at ¶¶ 23, 39, 52.
Miller served as Plaintiff's assigned parole officer in August and September 2019, and Bennett supervised Plaintiff from October 2019 to March 2020. Id. at ¶¶ 21, 36. Maher was assigned to be Plaintiff's parole officer in March 2020, and continues to serve in that capacity. Id. at ¶ 49.
On May 12, 2020, Plaintiff commenced this action. (Dkt. No. 1.) He sues Defendants in their individual and official capacities. Id. at 2. Generally, Plaintiff alleges Defendants violated his rights under the First and Fourteenth Amendments by subjecting him to certain special conditions of parole such as: (1) denying Plaintiff access to the internet, state parks, and church; (2) denying Plaintiff contact with BM and AM; (3) denying Plaintiff “due process and full faith and credit” and (4) “by subjecting him to parole restrictions that involve a greater deprivation of liberty than is reasonably necessary to achieve goals of punishment, rehabilitation or deterrence[.]” Id. at 7-9. Plaintiff's prayer for relief includes a request for declaratory and injunctive relief and monetary damages. Id. at 9-10. Defendants filed an answer to the complaint on August 19, 2020, and discovery ensued. (Dkt. No. 9.) Plaintiff was deposed on May 27, 2021. (Dkt. No. 38-4.)
Unless otherwise noted, page references to documents identified by docket number are to the page numbers assigned by the CM/ECF docketing system maintained by the Clerk's Office.
On August 31, 2021, the Court granted Defendants' letter motion, construed as a request to file certain exhibits to their summary judgment motion under seal and, on September 2, 2002, Defendants forwarded the subject documents to the Court via first class mail for an in camera inspection. (Dkt. Nos. 35, 36, 37.)
On September 8, 2021, Defendants filed their motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Dkt. No. 38.) Generally, in support of their motion, Defendants contend they are entitled to Eleventh Amendment immunity and qualified immunity, and argue the special conditions do not violate Plaintiff's constitutional rights. (Dkt. No. 38-14.) Plaintiff opposes the motion. (Dkt. Nos. 40, 41.)
III. DEFENDANTS' MOTION TO SEAL
A. Legal Standard
“The notion that the public should have access to the proceedings and documents of courts is integral to our system of government.” United States v. Erie Cty., N.Y., 763 F.3d 235, 238-39 (2d Cir. 2014). “Indeed, the common law right of public access to judicial documents is said to predate even the Constitution itself.” Id. at 239. The First Amendment to the United States Constitution “also protects the public's right to have access to judicial documents.” Id. A party seeking to seal documents submitted to a court bears the burden of showing that sealing is proper. See DiRussa v. Dean Witter Reynolds Inc., 121 F.3d 818, 826 (2d Cir. 1997).
Unless otherwise indicated, in quoting cases, all alterations, internal quotation marks, emphases, footnotes, and citations are omitted. See, e.g., Sczepanski v. Saul, 946 F.3d 152, 157 n.4 (2d Cir. 2020).
The common law and the First Amendment accord a presumption of public access to judicial documents. Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 124 (2d Cir. 2006). A “judicial document” is “a filed item that is relevant to the performance of the judicial function and useful in the judicial process.” Bernstein v. Bernstein Litowitz Berger & Grossmann LLP, 814 F.3d 132, 139 (2d Cir. 2016). Documents submitted for the court's consideration in relation to a motion are judicial documents. CBF Industria de Gusa S/A v. AMCI Holdings, Inc., No. 13-CV-2581, 2021 WL 4135007, at *2 (S.D.N.Y. Sept. 10, 2021). To overcome the presumption of public access over a judicial document, the court must make “specific, on the record findings” that sealing (1) is necessary “to preserve higher values,” and (2) “is narrowly tailored to serve that interest.” Lugosch, 435 F.3d at 120.
Examples of “higher values” may include enforcement interests, the privacy of innocent parties, and the attorney-client privilege. Doe v. Rensselaer Polytechnic Inst., No. 1:20-CV-01359 (BKS/CFH), 2020 WL 6586290, at *2 (N.D.N.Y. Nov. 10, 2020). A sealing request is “narrowly tailored” when it seeks to seal only that information that needs to be sealed in order to preserve higher values. Susquehanna Int'l Grp. Ltd. v. Hibernia Express (Ir.) Ltd., 2021 WL 3540221, at *4 (S.D.N.Y. Aug. 11, 2021). Portions of documents “with no apparent relation” to sensitive material generally should not be redacted or sealed. Id. (denying motion to seal where proposed redactions were “extensive” and covered non-commercially sensitive information).
B. Analysis
The exhibits at issue are submitted in support of Defendants' motion for summary judgment, Dkt. No. 38-5, Exhibit B to Knapp Declaration, Bates Nos. 000001-000156 and Dkt. No. 38-7, Exhibit A to Miller Declaration, Bates Nos. 001-082. They are, therefore, judicial documents to which a presumption of the right of public access attaches. CBF Industria de Gusa S/A, 2021 WL 4135007, at *2.
In support of their motion, Defendants contend the documents at issue contain highly sensitive information about the details of Plaintiff's crimes and, even with redactions, are concerned that the identity of Plaintiff's two victims could be ascertained from the records. (Dkt. No. 35.) To be sure, there is a compelling reason to limit the general public's access to these documents: safeguarding the identity of the victims. Courts frequently recognize the privacy interest in protecting “the identity of a sexual assault victim” as “an important and recognized basis to limit public access” to judicial documents. See Kemp v. North, No. 20-CV-9121, 2021 WL 1512712, at *2 (S.D.N.Y. Apr. 15, 2021) (collecting cases). Courts assign especially heavy weight to innocent third parties' privacy interests. Doe v. Gooding, No. 20-CV-06569 (PAC), 2021 WL 5991819, at *4 (S.D.N.Y. July 29, 2021).
However, the Court finds sealing the entirety of the subject exhibits is not narrowly tailored to serve the reasons asserted. The documents comprise a significant portion of the factual record before the Court, and they pertain to matters that “directly affect” the Court's adjudication of Defendants' motion for summary judgment. Indeed, it would be difficult for a member of the public to get a full picture of the Court's reasoning without access to those documents. See Scott v. Graham, No. 16-CV-2372, 2016 WL 6804999, at *2 (S.D.N.Y. Nov. 17, 2016) (“[R]edact[ing] the names of the victim and her mother (as opposed to requesting that the Court seal this entire proceeding) is ‘narrowly-tailored' to serve the higher value of safeguarding the victim's identity.”). Thus, the Court finds that redacting the exhibits, and specifically the names, addresses, phone numbers, and dates of birth contained therein, would be more appropriate than allowing the exhibits to remain under seal.
Therefore, the Court denies Defendants' motion to seal Exhibit B to Knapp Declaration, Bates Nos. 000001-000156 and Exhibit A to Miller Declaration, Bates Nos. 001-082. (Dkt. No. 37.) Defendants are directed to redact the subject documents to protect the identities of the victims, such as their names, addresses, and related information. Defendants should also redact any irrelevant personal information from non-parties from these exhibits such as names, dates of birth, and/or addresses to protect the identities of the victims. Defendants are instructed to carefully review the documents at issue to ensure that their redactions throughout their filings are consistent and narrowly tailored to protect the identities of Plaintiff's victims and highly sensitive information about the details of Plaintiff's crimes that has not already been publicly disclosed through filings in this litigation or otherwise.
Accordingly, in light of the foregoing, Defendants must file, within fourteen (14) days of the date of this Report-Recommendation and Order, Exhibit B to Knapp Declaration and Exhibit A to the Miller Declaration, in their REDACTED forms, which will replace Dkt. No. 38-5 and Dkt. No. 38-7.
IV. DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
A. Legal Standard
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment may be granted only if all the submissions taken together “show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The moving party bears the initial burden of demonstrating “the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323. A fact is “material” if it “might affect the outcome of the suit under the governing law,” and is genuinely in dispute “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248, see also Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005). The movant may meet this burden by showing that the nonmoving party has “fail[ed] to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322.
If the moving party meets this burden, the nonmoving party must “set out specific facts showing a genuine issue for trial.” Anderson, 477 U.S. at 248, 250; see also Celotex, 477 U.S. at 323-24; Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). “When ruling on a summary judgment motion, the district court must construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant.” Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir. 2003). “Assessments of credibility and choices between conflicting versions of the events are matters for the jury, not for the court on summary judgment.” Jeffreys, 426 F.3d at 553-54; see also Hayes v. New York City Dep't of Corr., 84 F.3d 614, 619 (2d Cir. 1996); Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996).
Where a party is proceeding pro se, the court is obligated to “read [the pro se party's] supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest.” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994).
B. Eleventh Amendment Immunity
Defendants seek dismissal of Plaintiff's official capacity claims for money damages. (Dkt. No. 38-14 at 3-4.) Plaintiff opposes the motion. (Dkt. No. 40 at 1-2.)
The Eleventh Amendment provides that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI. Regardless of the nature of the relief sought, in the absence of the State's consent or waiver of immunity, a suit against the State or one of its agencies or departments is proscribed by the Eleventh Amendment. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). “New York State has not consented to suit in federal court.” Abrahams v. Appellate Div. of Supreme Court, 473 F.Supp.2d 550, 556 (S.D.N.Y. 2007).
Section 1983 claims do not abrogate the Eleventh Amendment immunity of the states. See Quern v. Jordan, 440 U.S. 332, 340-41 (1979). “[C]laims against a government employee in his official capacity are treated as a claim against the municipality,” and, thus, cannot stand under the Eleventh Amendment. Hines v. City of Albany, 542 F.Supp.2d 218, 227 (N.D.N.Y. 2008).
However, “[u]nder the doctrine in Ex Parte Young, a plaintiff may avoid the Eleventh Amendment bar to suit and proceed against individual state officers . . . in their official capacities, provided his complaint (a) alleges an ongoing violation of federal law and (b) seeks relief properly characterized as prospective.” Clark v. DiNapoli, 510 Fed.Appx. 49, 51 (2d Cir. 2013). “A plaintiff may not use this doctrine to adjudicate the legality of past conduct,” meaning there must be some “plausible threat of future violations.” Id.; see W. Mohegan Tribe & Nation v. Orange Cty., 395 F.3d 18, 21 (2d Cir. 2004) (noting that, “in determining whether the Ex Parte Young doctrine applies to avoid an Eleventh Amendment bar to suit, a court need only conduct a straightforward inquiry into whether the complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective”); see also New York State Corr. Officers & Police Benev. Ass'n, Inc. v. New York, 911 F.Supp.2d 111, 129 (N.D.N.Y. 2012) (D'Agostino, J.) (“[D]eclaratory relief is not permitted under Ex Parte Young, when it would serve to declare only past actions in violation of federal law: retroactive declaratory relief cannot be properly characterized as prospective.”).
Here, Plaintiff seeks both monetary and non-monetary relief and has plausibly alleged “plausible threat of future violations.” (Dkt. No. 1 at 9-10.) Insofar as Plaintiff sues Defendants for money damages in their official capacities, those claims are barred by Eleventh Amendment immunity. See Malarczyk v. Lovgren, No. 1:19-CV-42 (DNH), 2022 WL 374271, at *4 (N.D.N.Y. Feb. 8, 2022) (“[I]t is beyond cavil that an official-capacity claim for money damages under § 1983 is barred by the Eleventh Amendment.”); see also Gunn v. Bentivegna, No. 1:20-CV-2440 (LLS), 2020 WL 2571015, at *3 (S.D.N.Y. May 19, 2020) (“DOCCS officials enjoy Eleventh Amendment immunity from suit under § 1983 for damages in their official capacities.”).
Accordingly, the Court recommends that Defendants' motion for summary judgment and dismissal of all claims for monetary damages against Defendants in their official capacities be granted. (Dkt. No. 38-14 at 3-4.)
C. Constitutional Claims Related to Special Conditions
Defendants move for summary judgment and dismissal of Plaintiff's claims challenging the special conditions of parole. (Dkt. No. 38-14 at 5-9.) Initially, Defendants argue Plaintiff should be estopped from obtaining relief in this action. Id. at 5. Defendants argue even if Plaintiff is not estopped, summary judgment should be granted because the conditions are reasonably related to Plaintiff's past conduct and designed to deter recidivism and prevent re-offense. Id. at 5-9.
1. Waiver
Defendants contend, in a cursory manner, that by requesting a transfer from New Hampshire to New York under the ICAOS, and by signing the application, Plaintiff “should be stopped from obtaining the relief in this action.” (Dkt. No. 38-14 at 6.) The Court agrees with Plaintiff that by signing the transfer application on July 19, 2019, and requesting a transfer from New Hampshire to New York, Plaintiff acknowledged New York could impose different conditions upon him. (See Dkt. No. 41 at ¶¶ 14, 15, 16; Dkt. No. 40 at 3.) Nevertheless, the record demonstrates that at the time he signed the application, Plaintiff did not know what special conditions of parole would be imposed by New York and, therefore, Plaintiff did not consent to the imposition of the alleged unconstitutional conditions. See Brady v. United States, 397 U.S. 742, 748 (1970) (“Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.”). Therefore, the Court finds Defendants' argument unavailing, and recommends denying Defendants' motion on this basis. (Dkt. No. 38-14 at 5-6.)
Plaintiff acknowledges that while he understood parole would be different in New York, “he fully expected” New York would “impose constitutionally valid conditions.” (Dkt. No. 41 at ¶ 14; see also Id. at ¶¶ 15, 16.)
2. Fourteenth Amendment Due Process
Through the fourth cause of action, the complaint alleges Defendants violated and continue to violate the Fourteenth Amendment by subjecting Plaintiff “to parole restrictions that involve a greater deprivation of liberty than is reasonably necessary to achieve goals of punishment, rehabilitation or deterrence where the record does not substantiate a basis for identifying a connection between the conditions and likelihood of harm and the conditions related to the nature and circumstance of the crime of conviction nor to the plaintiff's history and characteristics, thereby causing irreparable harm to the plaintiff.” (Dkt. No. 1 at 8-9.) Defendants contend this claim has no merit. (Dkt. No. 38-14 at 7-8.)
“Parolees are entitled to some form of due process in the imposition of special conditions of parole.” Yunus v. Robinson, No. 17-CV-5839, 2019 WL 168544, at *20 (S.D.N.Y. Jan. 11, 2019). This “limited due process right” entitles a parolee to conditions of parole that are reasonably related to his prior conduct or to a legitimate government interest such as rehabilitation, the prevention of recidivism and future offenses, and protection of the public. See Singleton v. Doe, No. 14-CV-0303, 2014 WL 3110033, at *3 (E.D.N.Y. July 7, 2014); United States v. Myers, 426 F.3d 117, 123-24 (2d Cir. 2005) (summary order); Robinson v. Pagan, No. 05-CV-1840, 2006 WL 3626930, at *6 (S.D.N.Y. Dec. 12, 2006). “If a special condition implicates a fundamental liberty interest,” the court “must carefully examine it to determine whether it is ‘reasonably related' to the pertinent factors, and ‘involves no greater deprivation of liberty than is reasonably necessary[.]'” Myers, 426 F.3d at 126; see also Doe v. Lima, 270 F.Supp.3d 684, 702 (S.D.N.Y. 2017) (“The Second Circuit has applied strict scrutiny to restrictions on liberty incident to post-prison supervisory regimes, whether denominated as parole (as in New York State) or as supervised release (as in the federal system).”). “Courts ‘must use common sense to guide [their] interpretation of supervised release conditions.'” Peoples v. Leon, No. 9:18-CV-1349 (LEK/ML), 2021 WL 1582173, at *8 (N.D.N.Y. Jan. 4, 2021) (quoting United States v. Moritz, 651 Fed.Appx. 807, 810 (10th Cir. 2016)), report-recommendation adopted, 2021 WL 977222 (N.D.N.Y. Mar. 16, 2021).
In support of the instant motion, Miller, who supervised Plaintiff in August and September 2019, provided a Declaration, and swears that he reviewed Plaintiff's application for ICAOS Interstate Compact Transfer and the associated documents. (Dkt. No. 38-6 (“Miller Decl.”) at ¶ 10; see Dkt. No. 38-7, Exhibit A.). He considered the nature of the crimes that Plaintiff had committed (aggravated felonious sexual assault and endangering the welfare of a child), the age of the two victims, police and court records, statements made by Plaintiff, and statements made by the victims. (Miller Decl. at ¶ 10.) Based on his review of Plaintiff's application and associated documents, Miller established special conditions for Plaintiff's parole supervision in New York. Id. at ¶ 11. Miller avers that his recommendations were tailored to Plaintiff's circumstances and aimed toward his rehabilitation. Id.
Miller further states the special conditions that he established were in accordance with DOCCS' then existing policies, which were reviewed and approved by SPO Snyder. Id. at ¶¶ 15, 16. To that end, it was DOCCS' policy to impose special conditions to (1) prohibit a sex offender from having contact with the victim(s) of his crime and with children under the age of 18 when the sex offender committed a felony offense and the victim of the offense was a child, and (2) prohibit a sex offender from using the internet when the sex offender committed a felony offense, and the victim of the offense was a child. Id. at ¶¶ 12, 13.
Bennett, who served as Plaintiff's assigned parole officer from October 2019 until March 2020, also provided a Declaration in support of the motion. (Dkt. No. 38-9 (“Bennett Decl.”) at ¶ 7.) During that time, he established special conditions on three occasions, which Bennett states were tailored to Plaintiff's circumstances and aimed toward his rehabilitation. Id. On October 1, 2019, Bennett established special conditions that permitted Plaintiff to open an e-mail account strictly for job search purposes. Id. at ¶ 8. On October 8, 2019, he established special conditions that pertained to Halloween and on November 5, 2019, he established special conditions that allowed Plaintiff to enter school grounds only for the purpose of voting on Election Day. Id. at ¶¶ 9, 10. SPO Snyder reviewed and approved the special conditions that Bennett established. Id. at ¶ 12. Bennett states he played no role in establishing the parole conditions/special conditions that were initially imposed for Plaintiff's transfer to parole supervision in New York. Id. at ¶ 15.
Maher also provided a Declaration. (Dkt. No. 38-11 (“Maher Decl.”).) As noted, he was assigned to serve as Plaintiff's parole officer in March 2020, and he continues to serve in that capacity. Id. at ¶ 10. Like Bennett, Maher states he played no role in establishing the parole conditions/special conditions that were initially imposed for Plaintiff's transfer to community supervision in New York. Id. at ¶ 7.
In his Declaration, Maher explains special conditions must be in accordance with DOCCS' policies and are established to ensure public safety, decrease the likelihood of re-offense, and provide a framework for a successful completion of parole supervision. Id. at ¶ 6. In June 2020, Maher added an addendum to the standard conditions for Plaintiff's parole supervision. Id. at ¶ 11. He also established special conditions in March and May 2021. Id. at ¶ 12. Maher avers the specials conditions that he established in 2021 modify previous restrictions and are tailored to Plaintiff's circumstances and aimed toward his rehabilitation. Id. at ¶ 13. To that end, on March 2, 2021, Maher established a special condition that permits Plaintiff to use his mother's computer for legal research and, on May 4, 2021, he established a special condition that allows Plaintiff to have contact with BM. Id. at ¶ 15, 16.
Here, Plaintiff makes only general objections/challenges to the special conditions of release imposed upon his release. (See Dkt. No. 1 at 8-9.) Plaintiff's conclusory allegations fail to demonstrate there is a material dispute of fact that would necessitate a trial on his fourth cause of action. Consequently, the undersigned recommends granting Defendants' motion for summary judgment on this basis because Plaintiff does not have a liberty interest in being free from any such conditions. (Dkt. No. 38-14 at 7-8.)
The Court addresses Plaintiff's specific challenges below.
3.First Amendment Free Speech and Free Exercise
Through the first cause of action, the complaint alleges Defendants violated and continue to violate the First Amendment by denying Plaintiff access to the internet, and to places where children congregate, including state parks and church. (Dkt. No. 1 at 7.)
a. Parks and Church
Plaintiff objects to the following special condition, which was established in August 2019 by Miller:
13(a17): I shall not enter or remain in any place (parks, schools, playgrounds, video galleries, shopping malls, bowling alleys, swimming pools, beaches, etc.) where children congregate without prior written permission of my parole officer. I also understand that I must obtain written permission to obtain a library card and visits to any (public) library.(Dkt. No. 38-8 at 8; Dkt. No. 1 at 7.) Defendants argue the special conditions that restrict Plaintiff from having contact with children under the age of 18 and from entering and remaining in places where children congregate, such as parks and churches, do not violate Plaintiff's First Amendment rights because the restrictions are rationally related to Plaintiff's criminal history, which includes sexually assaulting two young girls, BM and RM, on multiple occasions. (Dkt. No. 38-14 at 8-9.) Defendants further contend the restrictions are reasonably related to the justifiable purposes of protecting the public and decreasing the likelihood of re-offense. Id. at 9.
Moreover, Defendants state that in 2019, it was DOCCS' policy to impose special conditions to prohibit a sex offender from having contact with children under the age of 18 where, as here, the sex offender committed a felony offense, and the victim of the offense was a child. (Miller Decl. at ¶¶ 12, 16; Bennett Decl. at ¶ 15, Maher Decl. at ¶ 8.)
“First Amendment rights may be curtailed only by the least drastic means.” United States v. Kahane, 396 F.Supp. 687, 699 (E.D.N.Y. 1975). As to the restriction on parks, courts have generally upheld provisions prohibiting sex offender from frequenting locations where children are likely to congregate. See United States v. Johnson, 446 F.3d 272, 280-81 (2d Cir. 2006) (upholding a provision of supervised release that prohibited the defendant from being in “any” area where children are “likely” to congregate); see also Scott v. Rosenberger, No. 19-CV-1769 (CS), 2020 WL 4274226, at *7 (S.D.N.Y. July 24, 2020) (finding that “restricting [the plaintiff's] access to minors is thus reasonably related to [p]laintiff's past conduct and is designed to prevent Plaintiff from committing further offenses”); United States v. MacMillen, 544 F.3d 71 (2d Cir. 2008) (upholding special condition of supervised release prohibiting sex offender from frequenting locations where children are likely to congregate); United States v. Raftopoulos, 254 Fed.Appx. 829 (2d Cir. 2007) (indicating that conditions requiring sex offenders to stay away from parks where children congregate is permissible, but cannot be impermissibly vague); see also Lewandowski v. United States, No. CR DKC 14-0082, 2018 WL 3818857, at *5 (D. Md. Aug. 10, 2018) (upholding restriction that convicted sex offender “will not congregate or loiter near any school, park, playground, arcade, or other places frequented by children under the age of 18”).
Additionally, Plaintiff does not allege that, during his time on parole, he requested, and was unreasonably denied, permission to access a park. Accordingly, because the evidence suggests the condition is reasonably related to Plaintiff's criminal history and to the goals of protecting the public, the Court recommends that Defendants' motion for summary judgment and dismissal of Plaintiff's constitutional challenge of the special condition prohibiting him to enter “parks” be granted. (Dkt. No. 38-14 at 8-9.)
The Court reaches a different result, however, as to restrictions regarding Plaintiff's access to church. “Any limitation on exercise of religious freedom rights must be as narrow as practicable and clearly related to an appropriate governmental need. Limitations must affect prisoners and parolees with the least denigration of the human spirit and mind consistent with the needs of a structured correctional society.” Centonze v. Munson, No. 1:19-CV-1017 (MAD/ATB), 2020 WL 730608, at *8 (N.D.N.Y. Feb. 13, 2020) (quoting United States v. Hernandez, 209 F.Supp.3d 542, 546 (E.D.N.Y. 2016)). “A condition that prevents defendant from attending his place of worship because minors attend the same services is not the least drastic means of ensuring the public's safety. It violates defendant's right to religious observance.” Hernandez, 209 F.Supp.3d at 546.
Presently, it does not appear that there is a condition of Plaintiff's probation that relates specifically to church services; rather, as set forth above, special condition 13(a17) provides Plaintiff “shall not enter or remain in any place (parks, schools, playgrounds, video galleries, shopping malls, bowling alleys, swimming pools, beaches, etc.) where children congregate without prior written permission of my parole officer.”
In the verified complaint, Plaintiff claims he “was told that he could not attend the local church where several of his family members attend.” (Dkt. No. 1 at 4.) Plaintiff states he met with the pastor, who was aware of Plaintiff's convictions, and the pastor contacted Bennett but “Bennett still denied [Plaintiff] the ability to attend church.” Id. at 4-5. A copy of the pastor's letter, dated April 21, 2020, is attached as an exhibit to Plaintiff's complaint. See id. at 33. Defendants have not addressed this special condition beyond asserting a church is a place where “children congregate”, nor do they address the pastor's letter. (Dkt. No. 38-14 at 8-9.)
To be entitled to summary judgment on the issue of the constitutionality of the church restriction, Defendants must prove that the condition does not violate Plaintiff's constitutional rights, and, on the present record, the Court finds that Defendants have not met that burden. See Hernandez, 209 F.Supp.3d at 546 (Although the First Amendment rights of paroled sex offenders are circumscribed, and conditions preventing defendants convicted of sex offenses from associating with minors have been upheld, “[n]o compelling government interest justifies prohibiting attending religious services where a minor is present.”).
Upon review of the entire record, the Court finds issues of material fact as to whether the special conditions of parole prohibiting Plaintiff from attending communal worship in a church are “arbitrary and capricious” precluding an award of summary judgment. Accordingly, the Court recommends Defendants' motion for summary judgment and dismissal of Plaintiff's constitutional challenge prohibiting him to enter “church” be denied. (Dkt. No. 38-14 at 8-9.)
b. Internet
Plaintiff also objects to the following special condition, which was established in August 2019 by Miller:
SC(a36). I will NOT own possess, purchase or have control of any computer, computer related material, electronic storage devices, communication devices, and/or the internet, unless I obtain prior written permission from the PAROLE OFFICER. Furthermore, if approved: If I am permitted by the PAROLE OFFICER to possess a computer at my residence, permission will be granted for only one computer.(Dkt. No. 38-8 at 7; see Dkt. No. 1 at 7.) As described above, Miller reviewed Plaintiff's application and the associated documents and established special conditions for Plaintiff's parole supervision in New York. (Miller Decl. at ¶ 10.) He further avers this condition was tailored to Plaintiff's circumstances and aimed toward his rehabilitation. Id. at ¶ 11. Additionally, at the time he established the special condition, it was DOCCS' policy to impose special conditions to prohibit a sex offender from using the internet when the sex offender committed a felony offense, and the victim of the offense was a child. Id. at ¶ 13. SPO Snyder reviewed and approved the special condition. Id. at ¶ 15. On August 26, 2019, Plaintiff signed the special condition to certify that he read and understood them. (Dkt. No. 38-2 at ¶ 27.)
In October 2019, Bennett established the special condition that permitted Plaintiff to open an e-mail account strictly for job search purposes. (Bennett Decl. at ¶ 8.) Bennett avers the special condition was tailored to Plaintiff's circumstances and aimed toward his rehabilitation. Id. at ¶ 7. The special condition was approved by SPO Snyder and was in accordance with DOCCS' then existing policies. Id. at ¶¶ 12, 13.
In March 2021, Maher modified the restriction allowing Plaintiff use of his mother's computer for legal research and, in May 2021, established a special condition titled “REVISED ESTOP,” which provides:
I will not use the internet to access pornographic material, communicate with other individuals or groups for the purpose of promoting sexual relations with persons under the age of eighteen, and communicate with a person under the age of eighteen unless I receive written permission from the Board of Parole to use the internet to communicate with a minor child under eighteen years of age who I am the parent of and who I am not otherwise prohibited from communicating with.(Maher Decl. at ¶¶ 15, 22, 24.) Miller explains he established the “REVISED ESTOP” after DOCCS directed that it be imposed on parolees who did not use the internet in the underlying sex offense. Id. at ¶ 24. Again, SPO Snyder reviewed and approved the special conditions Maher established. Id. at ¶ 25.
Plaintiff contends that the aforementioned conditions were improperly imposed and unrelated to his criminal history because his crimes did not involve the internet. (Dkt. No. 41 at 66.) Liberally construed, Plaintiff seeks to invalidate these conditions relying upon the Supreme Court's decision in Packingham v. North Carolina, 137 S.Ct. 1730 (2017). In Packingham, the Court held that a broad North Carolina criminal statute barring registered sex offenders from accessing commercial social networking websites was unconstitutional. Id. at 1237. The Court reasoned that, “to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights.” Id. at 1737; see Yunus, 2019 WL 168544, at *16 (“Under Packingham, blanket limitations on an individual's ability to access social media will receive intermediate scrutiny, even when imposed as conditions of parole.”); see also United States v. Eaglin, 913 F.3d 88, 94-97 (2d Cir. 2019) (holding that “Packingham establishes that, in modern society, citizens have a First Amendment right to access the internet” and “the imposition of a total internet ban as a condition of supervised release inflicts a severe deprivation of liberty”).
Defendants argue Packingham does not apply because the restrictions at issue were imposed as parole conditions. (Dkt. No. 38-14 at 8.) This Court does not agree with Defendants' restrictive interpretation of the holding in Packingham. See Peoples v. Leon, 2021 WL 1582173, at *17-20 (surveying the recent caselaw where courts considered, and rejected, similar arguments); see, e.g., Yunus, 2019 WL 168544, at *16 (“There is no indication in Packingham that parolees are exempted from the Court's decision[.] In fact, the [Supreme] Court was clear that the distinction between those who were presently under the supervision of the criminal justice system and those who no longer were was not a basis for its holding[.]”); Lopez v. Stanford, No. 18-CV-3493, 2020 WL 6900909, at *8 (E.D.N.Y. Nov. 24, 2020) (rejecting the defendants' argument that Packingham is inapplicable to parole conditions); Hartwick v. Annucci, No. 5:20-CV-408 (DNH), 2020 WL 6781562, at *9 (N.D.N.Y. Nov. 18, 2020) (citing to Packingham in context of the plaintiff's challenge to parole conditions); Manning v. Powers, 281 F.Supp.3d 953, 961 (C.D. Cal. 2017) (holding that the plaintiff's challenge to a social media parole condition “is controlled by the Supreme Court's recent decision in Packingham”)).
Here, the record is devoid of any evidence establishing that the internet factored into any of Plaintiff's crimes or criminal history. On the present record, the Court finds Defendants have not proven, with competent admissible evidence, the special conditions of parole restricting Plaintiff's use of the internet is “narrowly tailored” so as not to burden Plaintiff's First Amendment rights more than necessary. See Scott, 2020 WL 4274226, at *9 (holding that because the plaintiff's underlying crime did not involve computers or the internet, the restrictions on all computer or internet use without permission were not reasonably related to the plaintiff's conduct); Yunus, 2018 WL 3455408 at *32 (holding that parole conditions restricting access to computers and social media were not “narrowly tailored” as required by the Constitution because the plaintiff had never been charged with any internet-related criminal conduct); cf. United States v. Savastio, 777 Fed.Appx. 4, 5 (2d Cir. 2019) (summary order) (upholding condition relating to adult pornography and other sexually explicit material of defendant who viewed child pornography).
In light of the foregoing, the Court finds issues of material fact as to whether the special condition of parole restricting Plaintiff's use of the internet is “arbitrary and capricious” precluding an award of summary judgment to Defendants on this claim. Accordingly, the Court recommends Defendants' motion for summary judgment and dismissal of Plaintiff's constitutional challenge of the special conditions restricting access to the internet be denied. (Dkt. No. 38-14 at 8-9.)
4.First Amendment Right of Familial Association
Through the second cause of action, the complaint alleges Defendants violated and continue to violate the First Amendment by denying Plaintiff contact with AM and BM. (Dkt. No. 1 at 7.) Relatedly, through the third cause of action, Plaintiff claims the special conditions violate his right to “due process and full faith and credit” under the Fourteenth Amendment because the special conditions are in “direct contraction to the Hillsborough County Court's ruling included in [P]laintiff's sentence[.]” Id. at 8. Specifically, Plaintiff objects to the following conditions established by Miller in August 2019:
13(a14): I shall not have any in person contact or attempt to contact any members of my VICTIM's family by means of letter, telephone, third party, or any other methods without the knowledge and written permission of my parole officer. Specifically, RM, BM, and KC[].
13(a15): I understand that I will not be in any contact with children under the age of 18 years unless I have prior written approval from my parole officer. I also understand this may include immediate and/or extended family members.(Miller Decl. at ¶ 14; see Dkt. No. 1 a 7-8.) Defendants argue Plaintiff has no constitutionally protected interest in his relationship with BM or AM and, therefore, the special conditions prohibiting contact with BM and AM do not violate the Plaintiff's rights under the First and Fourteenth Amendments. (Dkt. No. 38-14 at 6-7.) The Court agrees with Defendants.
“It is well established that a parent's interest in maintaining a relationship with his or her child is a fundamental liberty interest protected by substantive due process.” Peoples, 2021 WL 1582173, at *8. Courts, however, have not extended the “same solicitude” to non-custodial parents who did not play an active role in a child's life, prior to incarceration. Yunus, 2009 WL 168544, at *34 (citing Myers, 426 F.3d at 128) (holding that the parolee must demonstrate some “commitment to the responsibilities of parenthood”). As Defendants point out, Plaintiff has not alleged either a custodial relationship with BM (born in 1989) or AM (born in 2006), or that he has some measure of responsibility for their care. (Dkt. No. 38-14 at 6.) Although Plaintiff has submitted evidence that BM and AM “recognize” Plaintiff as their father and grandfather, respectively, it is undisputed that BM is a victim of Plaintiff's crimes, Plaintiff is not the biological or adoptive father of BM, and that Plaintiff has no blood relationship to AM. (Dkt. No. 38-2 at ¶ 6; Dkt. No. 41 at ¶ 6.)
As set forth above, Miller reviewed Plaintiff's application and the associated documents and carefully considered the nature of the crimes that Plaintiff had committed (aggravated felonious sexual assault and endangering the welfare of a child), the age of his two victims, police and court records, statements made by Plaintiff, and statements made by his victims, and established the foregoing special conditions for Plaintiff's parole supervision in New York. (Miller Decl. at ¶ 10.) He further avers this condition was tailored to Plaintiff's circumstances and aimed toward his rehabilitation. Id. at ¶ 11. Miller states that at the time he established the special conditions, it was DOCCS' policy to impose special conditions to prohibit a sex offender from having contact with the victim(s) of his crime and with children under the age of 18 when the sex offender committed a felony offense, and the victim of the offense was a child. Id. at ¶ 12. SPO Snyder reviewed and approved the special conditions. Id. at ¶ 15. On August 26, 2019, Plaintiff signed the special conditions to certify that he read and understood them. (Dkt. No. 38-2 at ¶ 27.)
In May 2021, Maher established a special condition that allows Plaintiff to have contact with BM. (Maher Decl. at ¶ 16.) Maher established the special condition after BM contacted Maher by telephone and after BM provided written confirmation that she wanted to have contact with Plaintiff. Id. at ¶ 17. Maher received the written confirmation from BM, who was no longer a minor, on or about November 24, 2020. Id. at ¶¶ 18, 19.
On the present record, the Court finds the special condition that prohibits Plaintiff from having contact with BM and AM is not arbitrary or capricious. See, e.g., Peoples, 2021 WL 1582173, at *8 (finding convicted sex offender's condition restricting contact with minors, including members of his extended family and younger brother to be reasonable); see also Maldonado, 2019 WL 5784940, at *3, 10 (finding same condition restricting contact with minors to be reasonable); Yunus, 2009 WL 168544, at *34 (reasoning there is no authority for proposition that a parolee has a fundamental right to visit minor family members); see also Wilkinson ex rel. Wilkinson v. Russell, 182 F.3d 89, 104 (2d Cir. 1999) (“Although parents enjoy a constitutionally protected interest in their family integrity, this interest is counterbalanced by the compelling governmental interest in the protection of minor children, particularly in circumstances where the protection is considered necessary as against the parents themselves.”); Bostic v. Jackson, No. 9:04-CV-676, 2008 WL 1882696, at *4-5 (N.D.N.Y. Apr. 24, 2008) (granting the defendants' motion for summary judgment as to plaintiff's challenge to a condition of parole which limited contact and prevented him from residing with his wife where she was the victim of the crime for which plaintiff was convicted).
To the extent Plaintiff challenges the foregoing condition on the grounds that it differs from the sentencing court's determination, (Dkt. No. 1 at 8), Plaintiff's argument is without merit. As discussed supra, Plaintiff's signed application to transfer his parole supervision from New Hampshire to New York, dated July 19, 2019, expressly provides:
I FULLY UNDERSTAND AND ACKNOWLEDGE ALL OF THE ABOVE CONDITIONS AND FREELY AND KNOWINGLY WAIVE ANY CHALLENGE TO THESE REQUIREMENTS OF TRANSFER, INCLUDING THE
CONDITIONS OF SUPERVISION IN THE STATE TO WHICH I REQUEST TRANSFER.(Miller Decl., Exhibit A, Bates p. 001.) “[U]nder New York law, the Board of Parole is entitled to impose conditions on the conditional release of an inmate.” Doe v. Simon, 221 F.3d 137, 139 (2d Cir. 2000); N.Y. Exec. Law §§ 259-c, 259-g, 259-i(2); N.Y. Comp. Codes R. & Regs. Tit. 9, § 8003.3 (“A special condition may be imposed upon a [parolee] either prior or subsequent to release . . . each special condition may be imposed by a member of the Board of Parole, an authorized representative of the division of parole, or a parole officer,” memorialized by “a written copy of each special condition imposed.”).
Inasmuch as the Board of Parole and/or parole officer is charged with “the duty and discretion of setting conditions for an inmate on parole release” Doe, 221 F.3d at 139; Robinson, 2010 WL 11507493, at *3, the Court finds Plaintiff's objection on this ground lacks merit. See Peoples, 2021 WL 1582173, at *8. In a similar vein, “[e]very court to squarely address the issue of whether the Full Faith and Credit Clause requires a state to give a convicted sex offender who relocates to that state the same classification that he would have had in the state of conviction has agreed that it does not.” Spiteri v. Russo, No. 12-CV-2780, 2013 WL 4806960, at *39 (E.D.N.Y. Sept. 7, 2013) (collecting cases), aff'd sub nom. Spiteri v. Camacho, 622 Fed.Appx. 9 (2d Cir. 2015).
Accordingly, because the record evidence demonstrates the foregoing conditions are reasonably related to Plaintiff's criminal history and to the goals of protecting the public, the Court recommends that Defendants' motion for summary judgment as to Plaintiff's second and third causes of action be granted. (Dkt. No. 38-14 at 6-7.)
D. Qualified Immunity
Defendants also move for summary judgment on all claims based on the doctrine of qualified immunity, which Plaintiff opposes. (Dkt. No. 38-14 at 4-5; Dkt. No. 40 at 2-6.)
The Court only considers qualified immunity for claims that survived the above analysis. See Posr v. City of New York, No. 10 CIV 2551, 2013 WL 2419142, *10 n.8 (S.D.N.Y. June 4, 2013) (“Because [the defendant] did not violate [the] [p]laintiff's [constitutional] rights, there is no need to consider if [the defendant] is entitled to qualified immunity”), aff'd sub nom. Posr v. Ueberbacher, 569 Fed.Appx. 32 (2d Cir. 2014).
“The doctrine of qualified immunity shields public officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Salahuddin v. Goord, 467 F.3d 263, 273 (2d Cir. 2006). “A right is clearly established if it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Beckles v. City of New York, 492 Fed.Appx. 181, 182 (2d Cir. 2012).
To determine whether a state official is entitled to qualified immunity for acts taken during the course of his or her employment, a reviewing court is to determine: “(1) whether plaintiff has shown facts making out violation of a constitutional right; (2) if so, whether that right was clearly established; and (3) even if the right was clearly established, whether it was objectively reasonable for the [official] to believe the conduct at issue was lawful.” Phillips v. Wright, 553 Fed.Appx. 16, 17 (2d Cir. 2014). “Even if the right at issue was clearly established in certain respects, however, an officer is still entitled to qualified immunity if ‘officers of reasonable competence could disagree' on the legality of the action at issue in its particular factual context.” Lima, 270 F.Supp.3d 684 at 710.
Here, as discussed supra, the record contains genuine issues of material fact as to Plaintiff's First Amendment claims regarding restrictions on attending church and accessing the internet. As such, the first prong of the analysis has been met. With respect to the second prong, the Court notes Defendants' brief lacks any argument suggesting that Plaintiff's right to be free from these conditions was not clearly established. Rather, Defendants argue reasonable officials, similarly situated to Defendants, would not have understood that imposing the special conditions, in accordance with DOCCS' then-existing policies and with supervisory approval, violated any of Plaintiff's rights. (Dkt. No. 38-14 at 5.)
Upon review of the present record, the Court finds Defendants have failed to discharge their burden of showing that “no reasonable jury, viewing the evidence in the light most favorable to the Plaintiff, could conclude that the defendant's actions were objectively unreasonable in light of clearly established law.” Ford v. Moore, 237 F.3d 156, 162 (2d Cir. 2001); see Maldonado, 2019 WL 5784940, at *10 (“[S]ince Salahuddin [v. Coughlin, 993 F.2d 306, 308 (2d Cir. 1993)], the right to participate in congregate religious services has been settled law, and a parole officer . . . is charged with knowledge thereof and cannot, therefore, reasonably believe that it was in his power to bar plaintiff from participating in communal worship altogether.”); United States v. Eaglin, 913 F.3d 88, 95 (2d Cir. 2019) (“In our view, Packingham nevertheless establishes that, in modern society, citizens have a First Amendment right to access the Internet.”); see, e.g., Maldonado, 2019 WL 5784940, at *10 (finding the defendant not entitled to qualified immunity with respect to plaintiff's claim that the conditions of parole prevented him from attending communal worship); Ennis v. Annucci, No. 5:18-CV-0501(GTS/TWD), 2019 WL 2743531, at *9 (N.D.N.Y. July 1, 2019) (denying motion to dismiss on qualified immunity grounds for internet related First Amendment deprivations that plaintiff allegedly suffered after Packingham was decided); see also Maldonado, 2019 WL 5784940, at *10 (“[A]t least prior to Packingham, the constitutional right of individuals on probation to access social media or commercial internet sites was not clearly established.”). Therefore, the Court recommends denying Defendants' motion for summary judgment and dismissal based upon qualified immunity. (Dkt. No. 38-14 at 4-5.)
V. CONCLUSION
After carefully considering the parties' submissions and the applicable law, and for the reasons stated herein, it is hereby
ORDERED that Defendants' sealing request (Dkt. No. 37) is DENIED; and it is further
ORDERED that Defendants must file, within fourteen (14) days of the date of this Report-Recommendation and Order, Exhibit B to Knapp Declaration and Exhibit A to the Miller Declaration, in their REDACTED forms, which will replace Dkt. No. 38-5 and Dkt. No. 38-7; and it is further
RECOMMENDED that Defendants' motion for summary judgment (Dkt. No. 38) be GRANTED IN PART AND DENIED IN PART as follows: (1) granted insofar as it seeks dismissal of Plaintiff's claims for monetary damages against Defendants in their official capacity; (2) granted insofar as it seeks dismissal of Plaintiff's second, third, and fourth causes of action; (3) granted insofar as is seeks dismissal of Plaintiff's first cause of action relating to the special condition of parole restricting access to parks; and (4) denied in all other respect; and it is further
RECOMMENDED that, if the above recommendations are accepted, only Plaintiff's first cause of action insofar as it challenges the special conditions of parole restricting Plaintiff's access to church and the internet remains for trial; and it is further
ORDERED that the Clerk provide a copy of this Report-Recommendation and Order to the parties in accordance with the Local Rules of Practice, along with copies of the unpublished decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam); and it is further
ORDERED that the Clerk is directed to amend the caption as set forth above.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) days within which to file written objections to the foregoing report.[ Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72.
If you are proceeding pro se and are served with this Report-Recommendation and Order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Report-Recommendation and Order was mailed to you to serve and file objections. Fed.R.Civ.P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. 6(a)(1)(C).
IT IS SO ORDERED.