THÉRÈSE WILEY DANCKS, United States Magistrate Judge

On December 20, 2018, Timothy E. Lando, Jr. ("Plaintiff"), then an inmate in custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), commenced this action pursuant to 42 U.S.C. § 1983 ("Section 1983"), asserting certain DOCCS personnel implemented conditions of parole that were arbitrary and capricious and violated his procedural and substantive due process rights. (Dkt. No. 1.) On February 14, 2019, the District Court ordered the following categories of claims survived initial review and required a response: (1) Plaintiff's claims seeking money damages against Defendant Parole Officers Tammy Gronau ("Gronau"), Brian Reed ("Reed"), Jason Rhodes ("Rhodes"), and Deputy Commissioner Steven A. Claudio ("Claudio") in their individual capacities regarding Plaintiff's various special conditions of parole; and (2) Plaintiff's claims seeking injunctive relief against Defendant Acting Commissioner Anthony J. Annucci ("Annucci"), Claudio, Regional Director Kenneth Gilbert ("Gilbert"), Bureau Chief Margaret Montfort-Balfour ("Montfort-Balfour"), Senior Parole Officer Jay Moss ("Moss"), and Senior Parole Officer Kenneth Palmer ("Palmer") in their official capacities regarding those same special conditions. (Dkt. No. 7.)

In lieu of answering, Defendants Annucci, Claudio, and Gilbert moved, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss Plaintiff's claims against them. At the time Annucci, Claudio, and Gilbert moved to dismiss, Defendants Gronau, Reed, Rhodes, Gilbert, Montfort-Balfour, and Moss had not yet been served. In their motion, Annucci, Claudio, and Gilbert argued Plaintiff had not pled a supervisory liability claim against Claudio and his claim for injunctive relief was moot because he was re-incarcerated on a parole violation. (Dkt. No. 29-1.) This Court recommended granting Claudio's motion regarding supervisory liability with leave to replead and denying the motion with respect to whether the claims for injunctive relief were moot. (Dkt. No. 45.) The Honorable Thomas J. McAvoy, United States Senior District Judge, adopted this Court's Report-Recommendation with the caveat that it found Plaintiff's claim for injunctive relief was likely not ripe. (Dkt. No. 54.) The District Court granted Plaintiff leave to amend and Defendants leave to renew their motion to dismiss on ripeness grounds. Id.

Plaintiff thereafter filed an amended complaint addressing the issues related to Claudio and supervisory liability. (Dkt. No. 55.) In light of the newly-filed amended complaint, this Court granted Defendants' request to file a consolidated motion to dismiss to address the ripeness challenge among other issues. (Dkt. Nos. 56, 57.) Defendants thereafter filed the current motion before the Court. (Dkt. No. 58.)

In their motion, Defendants argue Plaintiff's claims for injunctive relief are not ripe, are meritless, and should be dismissed under the standards of Ex Parte Young. (Dkt. No. 58-1 at 12-18.) Defendants also assert Claudio, Gronau, Reed, and Rhodes are entitled to qualified immunity. Id. at 18-22. Plaintiff responded and Defendants replied. (Dkt. Nos. 66, 68.) After reviewing the parties' filings and the applicable law, this Court recommends granting Defendants' motion with respect to the ripeness challenge and denying it in all other respects. I. FACTUAL BACKGROUND

On August 11, 2016, Plaintiff was released from prison into the custody of DOCCS Division of Parole. (Dkt. No. 55 at ¶ 18.) Gronau was assigned as Plaintiff's parole officer and served in that capacity until approximately January 2017. (Id. at ¶¶ 18, 33-34.) During her tenure as Plaintiff's parole officer, she denied Plaintiff's requests to visit his father in the hospital, have any contact with his children, and attend holiday events with his family. (Id. at ¶¶ 19, 20, 22, 30, 32.)

Plaintiff asserts Oswego County Family Court Judge James K. Eby issued an order granting him joint custody of his two minor children, visitation with his children while he was incarcerated, and permission to have verbal and written communication with his minor children. (Id. at ¶ 21.) Gronau was aware of the Family Court's Order but nevertheless imposed special condition 13(j), which prohibited him from having contact with his children or their mother. (Id. at ¶¶ 22, 24.)

Gronau also imposed a special condition requiring Plaintiff to submit to GPS monitoring and arrived at his place of work to issue the GPS monitor. (Id. at ¶¶ 25, 27.) According to Plaintiff, Gronau made disparaging remarks to him on a regular basis. (Id. at ¶¶ 28-29, 31, 33.)

In January 2017, Reed became Plaintiff's parole officer. (Id. at ¶ 34.) Despite his requests, Reed did not remove Plaintiff from GPS monitoring, or allow him to drive or visit with his children. (Id. at ¶ 35-37.)

In May 2017, Rhodes became Plaintiff's parole officer and maintained the same restrictions as the previous parole officers. (Id. at ¶¶ 39, 41.) Before Rhodes became Plaintiff's parole officer, Plaintiff started a romantic relationship with a woman. (Id. at ¶ 38.) In June 2017, Rhodes promised Plaintiff he could reside with his girlfriend in "three months," however, Rhodes later denied his subsequent requests to live with her in September and December 2017. (Id. at ¶¶ 43, 45, 47.) Rhodes also denied Plaintiff's requests to attend family holiday events in November and December 2017, because children under the age of 18 would be present. (Id. at ¶¶ 46, 48.) Rhodes also denied Plaintiff's request to have the restriction regarding visitation with his children and family lifted. (Id. at ¶¶ 42, 51.) In January 2018, Rhodes created a new condition of parole restricting Plaintiff's ability to enter or be around his fiancée's residence. (Id. at ¶ 50.)

In February 2018, Plaintiff's girlfriend and mother wrote letters to Annucci, the DOCCS Commissioner, "to address issues with parole isolating and restricting plaintiff from maintaining a relationship with family that love and support him." (Id. at ¶ 52.) Claudio, the DOCCS Deputy Commissioner, "responded to the [letters], but failed to consider the effect on the plaintiff and the impact on his rehabilitative needs to be successful in society." (Id.)

In May 2018, Plaintiff violated his parole when he went to a bar and broke his curfew. (Id. at ¶ 56.) He was ordered to serve a 24-month time assessment for his violation. (Id.) It is the Court's understanding that Plaintiff has now been released from his time assessment.

Based on these allegations, Plaintiff seeks injunctive relief to remove the following special conditions imposed upon him that allegedly restrict his ability to associate with his family: special condition 13(j), which prohibits his contact with his children; special condition 13(z1-z10), which provides for GPS monitoring; special condition 13(aa), which imposes a curfew; and special condition 13(bb), which restricts his ability to visit his girlfriend's (now wife) residence. Plaintiff also seeks monetary damages against certain parole officers in their individual capacities and against Claudio as a supervisory official.

II. DISCUSSION

Defendants move to partially dismiss Plaintiff's amended complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Dkt. No. 58-1.) To that end, Defendants move to dismiss Plaintiff's claims for injunctive relief pursuant to Rule 12(b)(1) because, according to Defendants, they are not ripe for review. (Id.) Furthermore, Defendants contend the Court should dismiss Plaintiff's claims against Claudio, Gronau, Reed, and Rhodes in their individual capacities because they are entitled to qualified immunity. (Id.) The Court will consider these arguments in turn.

A. Claims for Injunctive Relief

1. Standard of Review

"A federal court has subject matter jurisdiction over a cause of action only when it has authority to adjudicate the cause pressed in the complaint." Bryant v. Steele, 25 F. Supp. 3d 233, 241 (E.D.N.Y. 2014) (internal quotation marks omitted). "Determining the existence of subject matter jurisdiction is a threshold inquiry[,] and a claim 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." Morrison v. Nat'l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (internal quotation marks omitted), aff'd, 561 U.S. 247 (2010); see also Butler v. Ross, No. 16-CV-1282, 2016 WL 3264134, at *3 (S.D.N.Y. June 14, 2016) (same). While a district court resolving a motion to dismiss under Rule 12(b)(1) "must take all uncontroverted facts in the complaint . . . as true, and draw all reasonable inferences in favor of the party asserting jurisdiction," "where jurisdictional facts are placed in dispute, the court has the power and obligation to decide issues of fact by reference to evidence outside the pleadings, such as affidavits," in which case "the party asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists." Tandon v. Captain's Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014) (alteration and internal quotation marks omitted); see also Ray Legal Consulting Grp. v. Gray, 37 F. Supp. 3d 689, 696 (S.D.N.Y. 2014) ("[W]here subject matter jurisdiction is contested a district court is permitted to consider evidence outside the pleadings, such as affidavits and exhibits.").

2. Analysis

In his amended complaint, Plaintiff seeks injunctive relief to remove certain special conditions imposed upon him as a condition of his parole. The Court finds that, as currently pled, Plaintiff's claims for injunctive relief are not ripe for review. Ripeness is intended to avoid the "premature adjudication" of abstract disagreements. Nat'l Org. for Marriage, Inc. v. Walsh, 714 F.3d 682, 687 (2d Cir. 2013) (internal quotation marks omitted). "To be justiciable, a cause of action must be ripe—it must present a real, substantial controversy, not a mere hypothetical question." Id. (internal quotation marks omitted). While "[i]t is sufficient if the injury plaintiff alleges is 'certainly impending,'" Jungels v. New York, 50 F. App'x 43, 44 (2d Cir. 2002) (quoting Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298 (1979) (internal quotation marks and citation omitted)), "[f]ederal courts may not issue opinions 'advising what the law would be upon a hypothetical state of facts.'" Id. (quoting Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990) (internal quotation marks and citation omitted)). "'When the events alleged in a plaintiff's cause of action have not yet occurred, a federal court is precluded from exercising subject matter jurisdiction because a real case or controversy does not exist for purposes of Article III.'" Id. (quoting Auerbach v. Board of Educ., 136 F.3d 104, 108-09 (2d Cir. 1998)).

This action was commenced, and Plaintiff amended his complaint, while he was in DOCCS's custody based on his admission to violating two conditions of his parole. (Dkt. No. 55 at ¶ 57.) Accordingly, because Plaintiff was not under any of the conditions of parole he challenged when this action was commenced, his claims for injunctive relief were not ripe. Therefore, the Court recommends granting Defendants' motion to dismiss Plaintiff's claims for injunctive relief because they are not ripe, and the Court lacks subject matter jurisdiction to consider them.,

B. Qualified Immunity

1. Standard of Review

A defendant may move to dismiss a complaint for "failure to state a claim upon which relief can be granted" under Rule 12(b)(6) of the Federal Rules of Civil Procedure. The motion tests the legal sufficiency of the complaint and whether it conforms to Rule 8(a)(2) of the Federal Rules of Civil Procedure. To survive a motion to dismiss, the complaint must "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)). "Determining whether a complaint states a plausible claim for relief . . . requires the . . . court to draw on its judicial experience and common sense . . . . [W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not shown—that the pleader is entitled to relief." Id. at 679 (internal citation and punctuation omitted). "Factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555.

A complaint may be dismissed pursuant to Rule 12(b)(6) only where it appears there are not "enough facts to state a claim to relief that is plausible on its face." Id. at 570. While Rule 8(a)(2) "does not require detailed factual allegations, . . . it demands more than an unadorned, the-defendant-unlawfully-harmed-me-accusation." Iqbal, 556 U.S. at 678 (citation and internal quotation marks omitted). In other words, a complaint which "tenders 'naked assertion[s]' devoid of 'further factual enhancement'" does not suffice. Id. (citation omitted).

"In reviewing a complaint for dismissal under Rule 12(b)(6), the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor." Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994). However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678.

Where a party is proceeding pro se, the court is obliged to "read [the pro se party's] supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest." See Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994); see also Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (courts remain obligated to construe pro se complaints liberally even after Twombly). Where a pro se complaint fails to state a cause of action, the court generally "should not dismiss 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." Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (citation and internal quotation marks omitted). An opportunity to amend is not required where "[t]he problem with [the plaintiff's] causes of action is substantive" such that "better pleading will not cure it." Id.

2. Analysis

Defendants Claudio, Gronau, Reed, and Rhodes argue they are entitled to qualified immunity insofar as Plaintiff is seeking money damages with respect to his challenge to the conditions of parole restricting his ability to interact with other members of his family, live with his fiancée, and be free from GPS monitoring. (Dkt. No. 58-1 at 18-22.) Defendants argue they are entitled to qualified immunity "because neither the Supreme Court nor the Second Circuit has clearly established the process that is due to a sex offender parolee, who stands convicted of a forcible sex crime against a minor, with respect to special parole conditions . . . [.]" Id. at 20. For the reasons discussed below, this Court finds Defendants' arguments unpersuasive.

"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) (internal quotation marks and alteration omitted). "Generally, the imposition of conditions . . . must be upheld as long as they are reasonably related to a parolee's past conduct, are not arbitrary and capricious, and are designed to deter recidivism and prevent further offenses." Trisvan v. Annucci, 284 F. Supp. 3d 288, 298-99 (E.D.N.Y. 2018) (internal quotation marks omitted); see Muhammad v. Evans, No. 11-CV-2113, 2014 WL 4232496, at *9 (S.D.N.Y. Aug. 15, 2014) ("In the Second Circuit, special restrictions on a parolee's rights are upheld where they 'are reasonably and necessarily related to the interests that the Government retains after his conditional release.'") (quoting Birzon v. King, 469 F.2d 1241, 1243 (2d Cir. 1972)); see also United States v. Myers, 426 F.3d 117, 125 (2d Cir. 2005) (in federal supervised release context, conditions "must involve no greater deprivation of liberty than is reasonably necessary for the purposes of sentencing") (internal quotation marks and alteration omitted); Doe v. Lima, 270 F. Supp. 3d 684, 702 (S.D.N.Y. 2017) (applying Myers to state parole context), aff'd sub nom. Doe v. Cappiello, 758 F. App'x 181 (2d Cir. 2019) (summary order); Doe v. Annucci, No. 14-CV-2953, 2015 WL 4393012, at *13 (S.D.N.Y. July 15, 2015) (applying Myers in addressing qualified immunity in state parole context). "However, where the condition is not related to the parolee's criminal history or to the State's interests, it may be prone to tailoring or invalidation." Robinson v. New York, No. 09-CV-455, 2010 WL 11507493, at *6 (N.D.N.Y. Mar. 26, 2010) (collecting cases in which parole conditions were not reasonably related to offense). And where the condition deprives the parolee of a liberty interest that "is fundamental" under the Constitution, "a deprivation of that liberty is 'reasonably necessary' only if the deprivation is narrowly tailored to serve a compelling government interest." Myers, 426 F.3d at 126; see Lima, 270 F. Supp. 3d at 702 ("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).").

"[W]hile a plaintiff who claims that his parole conditions are arbitrary and capricious must provide enough information concerning his underlying crimes to plausibly allege that those conditions are not reasonably related to his prior conduct," the plaintiff need not "establish the lack of a rational relationship between these parole conditions and his criminal history by describing in detail the facts underlying his crime of conviction as found at trial and explaining why the parole conditions are unreasonable or unnecessary despite the actions for which he was convicted." Yunus, 2018 WL 3455408, at *39 (internal quotation marks, emphasis, and alterations omitted), report and recommendation adopted, 2019 WL 168544.

Turning to Plaintiff's amended complaint, he alleges Gronau placed him on GPS monitoring for no legitimate reason and was issued the GPS monitor at his workplace. (Dkt. No. 55 at ¶¶ 25, 27.) Specifically, he alleges the notes in his file claim GPS monitoring was ordered because he visited his daughter, but Plaintiff denies that ever happened. (Id. at ¶ 57.) Moreover, the amended complaint adequately alleges that the special conditions related to his relationship with his fiancée and his ability to interact with members of his family bear no relationship to his charged conduct. Plaintiff's amended complaint also asserts Gronau was malicious towards Plaintiff and did not treat him in a reasonable or rational manner. (Id. at ¶¶ 28, 29.) Here, given the facts as alleged in the amended complaint, there is no reason to find that the restrictions were "reasonably related to [Plaintiff's] past conduct." Trisvan, 284 F. Supp. 3d at 299. Indeed, Defendants do not even attempt to explain why these conditions are reasonably related to his offense. Rather, they focus solely on arguing that they are entitled to qualified immunity. (Dkt. No. 58-1 at 21.) Having first found that Plaintiff's allegations adequately allege a constitutional violation, the Court turns to whether Defendants are entitled to qualified immunity.

Qualified immunity is available to officials so long as their actions do not violate "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). To determine whether defendants enjoy qualified immunity, the Court "consider[s] the specificity with which a right is defined, the existence of Supreme Court or Court of Appeals case law on the subject, and the understanding of a reasonable officer in light of preexisting law." Terebesi v. Torreso, 764 F.3d 217, 231 (2d Cir. 2014). The plaintiffs are not required to cite a case "directly on point." Id. at 230 (internal quotation marks omitted); see also Anderson v. Creighton, 483 U.S. 635, 640 (1987) (finding that whether the very action in question has not previously been held unlawful is not determinative); Hope v. Pelzer, 536 U.S. 730, 741 (2002) ( "[O]fficials can still be on notice that their conduct violates established law even in novel factual circumstances."). However, "in the light of pre-existing law the unlawfulness must be apparent." Id. at 739 (internal quotation marks omitted).

To be sure, as Defendants argue, qualified immunity should be resolved "at the earliest possible stage in litigation." Pearson v. Callahan, 555 U.S. 223, 232 (2009) (internal quotation marks omitted). However, the Second Circuit recently discussed that there is a "corollary to that principle: The immunity question cannot be resolved before the earliest possible stage, id., i.e., prior to ascertainment of the truth of the plausible factual allegations on which a finding of qualified immunity is premised." Chamberlain ex rel. Chamberlain v. City of White Plains, 960 F.3d 100, 110 (2d Cir. 2020) (internal quotation marks and citations omitted). In other words, the Second Circuit has cautioned district courts against granting motions to dismiss on qualified immunity grounds. See id.; see also Barnett v. Mount Vernon Police Dep't, 523 F. App'x 811, 813 (2d Cir. 2013) (summary order) ("[A] defendant asserting a qualified immunity defense on a motion to dismiss faces a formidable hurdle and is usually not successful.") (internal quotation marks and alteration omitted); Green v. Maraio, 722 F.2d 1013, 1018 (2d Cir. 1983) (noting that, as a general rule, "the defense of qualified immunity cannot support the grant of a [Rule] 12(b)(6) motion").

The Second Circuit has explained that: "a defendant presenting an immunity defense on a Rule 12(b)(6) motion instead of a motion for summary judgment must accept the more stringent standard applicable to this procedural route." McKenna v. Wright, 386 F.3d 432, 436 (2d Cir. 2004) (citations, internal quotation marks, and alterations omitted). Thus, a qualified immunity defense presented on a Rule 12(b)(6) motion "faces a formidable hurdle . . . and is usually not successful." Field Day, LLC v. County of Suffolk, 463 F.3d 167, 191-92 (2d Cir. 2006) (internal quotation marks omitted). "Otherwise, plaintiffs alleging a violation of their constitutional rights would face a heightened pleading standard under which they must plead not only facts sufficient to make out their claim but also additional facts to defeat an assertion of qualified immunity." Chamberlain, 960 F.3d at 110 (citing Castro v. United States, 34 F.3d 106, 111 (2d Cir. 1994)). "Put another way, advancing qualified immunity as grounds for a motion to dismiss is almost always a procedural mismatch." Chamberlain, 960 F.3d at 110 (citing Jacobs v. City of Chicago, 215 F.3d 758, 775 (7th Cir. 2000)).

Here, the Court finds Defendants do not clear this high bar. As noted above, "it is well settled that conditions of release must be reasonably related to the parolee's underlying offense, and all parole officers should be aware of this fundamental legal principle setting the parameters of the conditions they may or may not impose." Scott, 2020 WL 4274226, at *12. Viewed in the light most favorable to Plaintiff, the facts as alleged are sufficient to overcome the Defendants' assertion of a qualified immunity defense, at least until further facts are submitted on a motion for summary judgment or at trial. In sum, Plaintiff has plausibly alleged Defendants' imposition of the challenged special conditions was arbitrary and not related to his criminal offense and, therefore, a violation of his clearly established rights. On one hand, once the facts are developed in discovery, it may come to light that Plaintiff's right to be free from all or some of his special conditions, given the facts and circumstances of his case, was not clearly established. On the other hand, it may become clear that no reasonable parole officer in the position of Defendants could have thought the restrictions to be constitutional. At this point, the Court finds it would be premature to dismiss these claims on qualified immunity grounds and therefore recommends denying Defendants' motion to dismiss.

III. CONCLUSION

For the reasons set forth above, the Court recommends Defendants' motion to dismiss (Dkt. No. 58) be granted in part and denied in part.

ACCORDINGLY, it is hereby

RECOMMENDED that Defendants' Rule 12(b)(1) motion to dismiss Plaintiff's claims for injunctive relief against Annucci, Gilbert, Moss, Palmer, and Montfort-Balfour (Dkt. No. 58) be GRANTED and those claims DISMISSED; and it is further

RECOMMENDED that Defendants' Rule 12(b)(6) motion to dismiss (Dkt. No. 58) be DENIED in all respects; and it is further

ORDERED that the Clerk provide to Plaintiff a copy of this Order and Report-Recommendation, along with copies of the unpublished decisions cited herein in accordance with the Second Circuit decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).

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) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. Dated: March 3, 2021

Syracuse, New York

/s/_________

Thérèse Wiley Dancks

United States Magistrate Judge