MEMORANDUM OPINION AND ORDER

GABRIEL GORENSTEIN, Magistrate Judge

On May 9, 2005, Magistrate Judge Gabriel W. Gorenstein issued a Report and Recommendation ("Report") recommending that the Court grant the defendant Richard de Simone's motion to dismiss plaintiff Donald Stubbs' pro se amended complaint. Plaintiff, currently incarcerated in Green Haven Correctional Facility, brings his amended complaint under 42 U.S.C. § 1983, alleging that his constitutional rights were violated in that his sentence was not correctly calculated by defendant de Simone, and that defendants Bilinski and the Westchester County Clerk interfered with his efforts to bring an Article 78 proceeding and otherwise appeal his sentence calculation.

Judge Gorenstein concluded that each of the claims asserted against Bilinski and the Westchester County Clerk failed as a matter of law. (Report, pp. 20-26.) With respect to the claims asserted against de Simone, Judge Gorenstein found that they were barred by the doctrine of collateral estoppel as the claims had all been denied in July 2001 by New York Supreme Court Judge Elaine Slobod of the Orange County Supreme Court in a prior action (the "Orange County Action"). (Report, pp. 5-6, 26-29.) The plaintiff submitted a letter dated June 9, 2005, objecting to certain portions of the Report and seeking an opportunity for discovery. (Plaintiff's Objection to Report, pp. 1-6 ("Obj.").)

The district court adopts a magistrate judge's report and recommendation when no clear error appears on the face of the record. See Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985). However, the court is required to make a de novo determination of those portions of a report to which objection is made, 28 U.S.C. § 636(b)(1)(C), by reviewing "the Report, the record, applicable legal authorities, along with Plaintiff's and Defendant's objections and replies." Badhan v. Lab. Corp. of Am., 234 F. Supp. 2d 313, 316 (S.D.N.Y. 2002). The court may then accept, reject, or modify in whole or in part recommendations of the magistrate judge. See Nelson, 618 F. Supp. at 1189. If the party "makes only conclusory or general objections, or simply reiterates his original arguments, the Court reviews the Report and Recommendation only for clear error." Sanchez v. Dankert, 2004 WL 439502, at *1 (S.D.N.Y. March 9, 2004); accord Johnson v. City Univ. of New York, 2003 WL 21435469, at *1 (S.D.N.Y. June 19, 2003); Greene v. WCI Holdings Corp., 956 F. Supp. 509, 513 (S.D.N.Y. 1997). On the other hand, where objections to a report are "specific and . . . address only those portions of the proposed findings to which the party objects, district courts should conduct a de novo review of the issues raised by the objections." Camardo v. Gen. Motors Hourly-Rate Employees Pension Plan, 806 F. Supp. 380, 381-82 (W.D.N.Y. 1992).

Some of plaintiff's objections here are sufficiently specific so as to require de novo review of the issues associated with said objections; others, being general, duplicative and conclusory, do not require a departure from the "clear error" standard. The Court addresses the objections in the order in which plaintiff presents them and notes those objections that, due to their general or conclusory nature, do not demand a de novo review of the issue raised. As no objection ultimately impeaches the conclusions drawn by Judge Gorenstein, the Court adopts the thoughtful Report and orders the dismissal of the plaintiff's complaint.

The Report extensively outlines the procedural history and facts of the case, which, with limited exception, are not in dispute. (Report, pp. 1-30.) Accordingly, and consistent with the Federal Magistrates Act's aim of promoting the efficiency of the judiciary ( 28 U.S.C. §§ 631 et seq.), the Court will assume familiarity with the Report rather than compose what would be a largely redundant background section. The Report is attached in its entirety at the end of this opinion.

Objections 1(a)-(c)

Plaintiff first takes issue with Judge Gorenstein's failure to "construe the claims set forth in the amended complaint in a liberal manner," to "make any reasonable inferences in favor of the plaintiff," and to "properly interpret the claims set forth in the amended complaint to raise the strongest arguments that they suggest." (Obj., pp. 1-2.) The plaintiff then reiterates the purported violations of his constitutional rights to due process, equal protection, and access to the courts, tacking each to the aforementioned broad-stroke objections. (Obj., p. 2.) These general objections are "merely perfunctory responses," presented in a manner that would "engage the district court in a rehashing of the same arguments set forth in the original petition," and would produce a reduction of "the magistrate's work to something akin to a meaningless dress rehearsal." See Vega v. Artuz, 2002 WL 31174466, at *1 (S.D.N.Y. 2002). They alone do not supply issues worthy of departure from clear error review. The court finds no clear error.

Objection 1(d)

Plaintiff asserts that the "findings and conclusions reached by the U.S. Magistrate were drawn from a foreign court, [sic] that has no direct bearing in [sic] Plaintiff's amended complaint, or the claims set forth therein." (Obj., p. 2.) The aim of the objection is unclear. As plaintiff is proceeding pro se, however, the Court is careful to fulfill the obligation "to construe his pleadings liberally, particularly when they allege civil rights violations." Hemphill v. New York, 380 F.3d 680, 687 (2d Cir. 2004). Plaintiff likely means to argue that the case law and authority cited by Judge Gorenstein is inapplicable — or irrelevant — with respect to the validity of plaintiff's claim. Such an objection is meritless. Judge Gorenstein included case law issued by the United States Supreme Court, the Second Circuit, the Fifth Circuit, the Seventh Circuit, assorted federal district courts, and New York state courts. (Report, pp. 1-30.) Each cited case brings with it either persuasive or binding authority, bolstering the conclusions drawn by the magistrate judge or circumscribing the conclusions he may reach. As all cases mentioned by Judge Gorenstein are germane and strengthen his recommendations, the Court holds that they indeed have a direct bearing on the claims presented in plaintiff's amended complaint.

Objection 1(e)

Plaintiff objects to Judge Gorenstein's "ma[king]" his "findings and conclusions from the 'original complaint' dated February 27, 2004, and not from the amended complaint dated November 22, 2004, which completely replaced the original complaint." (Obj., p. 2.) He directs the Court's attention to the eighth page of the Report for evidence of the magistrate judge's supposed misuse. The Report does indeed reference the original complaint, though the reference is not objectionable. (Report, p. 8.) Judge Gorenstein is simply engaged in recounting the case's procedural history when he makes the citation; he references the original complaint because Section (I)(B) of the Report addresses Chief Judge Mukasey's Order, an order that grounded its conclusions in the assertions drawn from the original complaint, not the amended complaint. ( Id.)

Objection 1(f)

Plaintiff challenges the "judicial authority" of the "U.S. Magistrate . . . to make a determination of plaintiff's amended complaint on the merits, without affording [p]laintiff an opportunity for 'discovery.'" (Obj., p. 2.) As an initial matter, plaintiff appears to misconceive the role of the magistrate judge. A district court judge may designate a magistrate judge to submit to the court a proposed recommendation as to the disposition of certain motions, including those brought under Rule 12(b)(6). See 28 U.S.C. § 636(b)(1). To the extent that plaintiff objects to the magistrate judge's recommendation because it was made prior to the initiation of discovery, the objection is without merit. A party has no right to discovery with respect to legally insufficient claims. Wearing v. Coughlin, 1992 WL 58861, at *4 (S.D.N.Y. 1992).

Objection 1(g)

Plaintiff concludes the first section of objections by taking issue with Judge Gorenstein's failure to note the plaintiff's "personal stake" in the outcome of the federal action. (Obj., p. 2.) Plaintiff's personal interest in the action is presumed and, in any event, is not a fact that is legally relevant to determination of defendant's motion to dismiss.

Objection 2

Plaintiff contends that "the U.S. Magistrate's findings of 'issue preclusion,' based on collateral estoppel must be rejected. There is no mention whatsoever of [the Orange County Action] in the claims presented in the amended complaint . . . and the whole of the Report and Recommendation is entirely based upon what occurred in the Orange County matter." ( Id.) Though the claims included in the amended complaint may be devoid of references to the Orange County Action, the content and procedural history are indeed pertinent to Judge Gorenstein's finding of collateral estoppel. The magistrate judge carefully examined the question of issue preclusion, finding that the claims made by plaintiff against de Simone in the amended complaint were actually and necessarily decided in the prior action and that he had a full and fair opportunity to litigate the issues raised in that action. (Report, pp. 26-29.) Plaintiff's amended complaint may supplant the original complaint, but it does not delete the procedural history of the case, which was properly considered in deciding the instant motion. See Chambers, 282 F.3d at 153; see also Faulkner, 156 F. Supp. 2d at 391.

Objection 3

Plaintiff's conclusory objection that he "was not afforded a full and fair opportunity to litigate the state procedures that were used to deny Plaintiff's due process rights" (Obj., p. 4) is rejected for the reasons stated above and in the accompanying Report.

Objection 4

Plaintiff objects to Judge Gorenstein's observation that "Stubbs's claim in this Court might be construed to seek at least in part a ruling that would demonstrate the invalidity of the duration of his confinement." (Report, p. 20.) Plaintiff argues that "[t]here is nothing whatsoever in the claims set forth in the amended complaint that would suggest that Plaintiff Stubbs is seeking in part or otherwise, a ruling that would demonstrate the invalidity of the duration of his confinement." (Obj., p. 4.) Judge Gorenstein's reading of the amended complaint has stronger textual support: the amended complaint "respectfully request [sic] this Court to examine the Defendant's sentence calculations of Plaintiff's indeterminate sentence terms in the interest of justice, and order the Defendant to re-calculate Plaintiff's sentence terms in accordance with appropriate state statutes." (Amended Complaint, p. 16.) One could construe a request for a sentence recalculation as a request for a ruling "that would demonstrate the invalidity of the duration of his confinement." (Report, p. 20.) In any event, plaintiff's objection is of no consequence as the magistrate judge explicitly declined to base his recommendation on this issue. ( Id.)

Objection 5

The plaintiff objects to the magistrate judge's "finding that Defendants are properly protected from any liabilities under the 'doctrine of qualified judicial immunity,' as Chief Judge Michael B. Mukasey had initially determined." (Obj., p. 4.) Judge Gorenstein, however, did not make his recommendation that the claims against Bilinski and the Westchester County Clerk be denied on the basis that they were barred by immunity. Instead, while noting that the defendants might not be immune to claims for injunctive relief, Judge Gorenstein nevertheless concluded, properly, that plaintiff's § 1983 claims against these two individuals failed on the merits. (Report, pp. 21-26.)

Objection 6

Finally, plaintiff objects to the fact that Judge Gorenstein did not find that the problems with his complaint could have been resolved by repleading. (Obj., p. 5.) Judge Gorenstein correctly noted the less stringent standards applicable to the interpretation of pro se pleadings Report, p. 16), and his review considered the merits of plaintiff's claims and interpreted his pleadings "to raise the strongest arguments" that they suggested. Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996). Although leave to amend is to be granted "freely . . . when justice so requires, Fed.R.Civ.P. 15(a), the denial of leave to amend does not constitute an abuse of discretion when granting leave would be unproductive or futile or where [amendment] would be meritless." Hafez v. Avis Rent A Car System, Inc., 2000 WL 1775508, at 2 (2d Cir. 2000).

Conclusion

For the foregoing reasons, as well as for the reasons stated in the Report (attached infra), the Court hereby adopts the Report, and the Motion to Dismiss [12, 21] is hereby granted. The Clerk shall close this case.

SO ORDERED.

REPORT AND RECOMMENDATION

By order dated July 23, 2004, Chief Judge Michael B. Mukasey dismissed Stubbs's complaint insofar as it alleged claims against Bilinski and the Westchester County Clerk on the ground that Stubbs's claims against these individuals were barred by the doctrine of absolute judicial immunity. See Order of Partial Dismissal, filed July 23, 2004 (Docket #3) ("July 23 Order"), at 2. Stubbs subsequently filed an amended complaint — again naming Bilinski, the Westchester County Clerk, and de Simone as defendants. See Amended Complaint, filed November 29, 2004 (Docket #15) ("Am. Compl."), at 1. De Simone has moved to dismiss Stubbs's amended complaint pursuant to Fed.R.Civ.P. 12(b)(1) and Fed.R.Civ.P. 12(b)(6). For the following reasons, the motion should be granted.

I. BACKGROUND

A. Prior Proceedings

The facts relating to Stubbs's prior state court proceedings are drawn from court papers annexed to de Simone's submissions in support of the motion to dismiss. The Court may consider these materials in deciding the instant motion to dismiss. See Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (in deciding a motion to dismiss courts may consider documents attached to the complaint or incorporated in it by reference, documents that the plaintiff relied on in bringing suit that are either in the plaintiff's possession or were known to the plaintiff at the time the suit was brought, or matters of which judicial notice may be taken); see also Faulkner v. Verizon Communications, Inc., 156 F. Supp. 2d 384, 391 (S.D.N.Y. 2001) (under Fed.R.Evid. 201(b) courts "may take judicial notice of pleadings in other lawsuits attached to the defendants' motion to dismiss . . . as a matter of public record") (citing cases).

1. The Orange County Petition

On or about January 4, 2001, Stubbs filed a writ of habeas corpus in New York State Supreme Court, Orange County, challenging, inter alia, the calculation of his sentence and conditional release date. See Petition for Writ of Habeas Corpus, dated January 4, 2001 (reproduced as Ex. B to Fleischmann Decl.) ("Orange County Petition"), at 3-7. In his petition, Stubbs named Frank Bigger, Sheriff of Orange County, and the Orange County Correctional Facility, as respondents. Id. at 2.

The papers filed as part of the Orange County Petition and during the course of the instant action reflect that in May 1980, Stubbs violated the conditions of his parole, which had been imposed upon him as a result of a July 1978 conviction declaring him a youthful offender. See Letter from Richard de Simone to Jeane Strickland, Esq., dated April 18, 2001 (reproduced as Ex. C. to Fleischmann Decl.) ("de Simone Letter"), at 1. In February 1981, Stubbs was sentenced in Orange County to a prison term of 5 to 15 years after being convicted on a charge of second-degree robbery (the "February 1981 conviction"). See id. In November 1981, Stubbs was sentenced in Orange County to a prison term of 6 to 18 years after being convicted on a charge of first-degree sodomy (the "November 1981 conviction"). See id. at 2. This sentence was to run concurrently with the 5 to 15 year sentence imposed on Stubbs following his February 1981 conviction. Orange County Petition ¶ v.

On November 18, 1986, Stubbs was sentenced in Clinton County to two 3½ to 7 year prison terms after being convicted on charges of criminal possession of a weapon in the third-degree and promoting prison contraband in the first-degree (the "November 1986 conviction"). See de Simone Letter at 2. That sentence was to run consecutively with the previously imposed sentences. See Orange County Petition ¶ vii. On October 12, 1990, Stubbs was sentenced in Washington County to two additional 3½ to 7 year prison terms after being convicted on charges of assault in the second-degree and promoting prison contraband in the first-degree (the "October 1990 conviction"). See de Simone Letter at 2. That sentence was also to run consecutively with the previously imposed sentences. Orange County Petition ¶ viii.

Stubbs was paroled in April 1994 and he subsequently violated parole in July 1995. See de Simone Letter at 2. He was returned to DOCS custody in January 1996 as a parole violator and was paroled again in July 2000. See id. Stubbs was arrested for violating his parole in November 2000. See Orange County Petition at 2.

In the Orange County petition, Stubbs alleged that, because his sentence of 6 to 18 years resulting from his November 1981 conviction had already commenced, sentencing him to consecutive terms of imprisonment following his November 1986 and October 1990 convictions violated N.Y. Criminal Procedure Law ("C.P.L.") § 430.10, which prohibits the change, suspension, or interruption of a sentence once the term or period of the sentence has commenced. See id. ¶¶ v, vii-viii. Stubbs also alleged that his right to due process had been violated as a result of respondents' "failure to afford him a due process hearing beforeeither a parole board . . . or a time allowance committee . . . prior to commencing" his new sentences. Id. ¶ ix (emphasis in original). Stubbs contended that the imposition of the consecutive sentences unlawfully increased his original minimum sentence and delayed the date by which he could be considered for parole by the parole board. See id. ¶¶ vi-x. As a result, Stubbs claimed that his sentences had been improperly calculated and that he had already served more than the maximum term imposed by his sentence for the November 1981 conviction. See id. ¶ x. Stubbs, therefore, requested that his sentence be recalculated and that he be granted whatever time credits he was entitled to. See id. ¶ xi.

In response to the petition, respondents submitted a letter from de Simone. See de Simone Letter. In the letter, de Simone rejected Stubbs's contention that his sentence should be reduced pursuant to C.P.L. § 430.10. See id. at 2. De Simone stated that New York Penal Law ("N.Y.P.L.") § 70.30(1)(e), which provides for a reduction in consecutive indeterminate terms of imprisonment under certain circumstances, did not entitle Stubbs to any reduction in his sentence. Id. De Simone also calculated Stubbs's sentence and conditional release date, taking into consideration any possible good time credit to be awarded to Stubbs after his return to DOCS custody following his parole violations. See id. at 3-4. Based upon his calculation, de Simone concluded that Stubbs's approximate conditional release date would be November 21, 2009, assuming that his September 2000 parole violation was sustained and that he was credited for the entire period between the lodging of the parole warrant and the resumption of his sentence. Id. at 4. The letter also concluded that the maximum term of Stubbs's sentence would expire on May 21, 2014. Id.

By order dated July 5, 2001, Supreme Court Justice Elaine Slobod of the Orange County Supreme Court converted Stubbs's habeas corpus petition into an Article 78 petition and denied all of his claims for relief. See Short Form Order, dated July 5, 2001 (reproduced as Ex. D to Fleischmann Decl.) ("Slobod Decision"), at 2-3. The court held, inter alia, that Stubbs's sentence had been correctly calculated. See id. Specifically, the court concluded that Stubbs was "not entitled to [a] reduction of the aggregate of his various sentences" under N.Y.P.L. § 70.30(1)(e). Id. at 2. The court also rejected Stubbs's argument that one or more of the consecutive sentences imposed upon him following his November 1986 and October 1990 convictions violated C.P.L. § 430.10, as well as Stubbs's "grossly belated" claim that his appearance before the parole board had been unduly delayed. See id. at 3. Although the court acknowledged that Corrections Law § 803(5) permitted Stubbs "to receive a time allowance against the remaining portion of his aggregate maximum" sentence, the court found that Stubbs had "forfeited any allowances for good behavior granted prior to his release on parole." Id. at 2-3. The court concluded, therefore, that Stubbs's "maximum expiration date" had not been reached "under any scenario," but that he was free "to make an appropriate challenge to new calculations of [his maximum expiration] date and his conditional release date after appropriate credits have been applied." Id. at 3. There is no record of this decision being appealed to the Appellate Division, Second Department.

2. The Westchester County Petition

On or about January 29, 2002, Stubbs filed an Article 78 petition in Westchester County Supreme Court. See Petition, dated January 29, 2002 (reproduced as Ex. E to Fleischmann Decl.) ("Westchester County Petition"). The Westchester County Petition named as respondents the New York State Division of Parole ("DOP") and DOCS. Id. at 1. In this petition, Stubbs again alleged that sentencing him to consecutive terms of imprisonment following his November 1986 and October 1990 convictions unlawfully increased his original minimum sentence of 6 to 18 years resulting from his November 1981 conviction, delayed the time before he could be considered for parole, and violated his right to due process.See id. ¶¶ 5-17. Specifically, Stubbs contended that respondents had incorrectly calculated his sentence and conditional release date. See id. ¶¶ 15-16. Stubbs also alleged that, because respondents imposed consecutive sentences on him before his original minimum sentence had expired and delayed presenting him to the parole board, respondents violated both C.P.L. § 430.10 and his right to due process. See id. ¶¶ 5, 7-13, 15-16. In this petition, Stubbs requested, inter alia, that the court review respondents' "arbitrary action of illegally re-sentencing him without affording [him] due process," issue an order "directing the respondents to terminate the remainder of their illegally induced sentence," and issue an order directing "respondents to release [him] . . . from custody." Id. at 5-6. By order to show cause dated July 25, 2002, Stubbs moved the Westchester County Supreme Court, pursuant to Article 78, for an order setting forth the exact date when his sentences for the November 1986 and October 1990 convictions commenced because, according to Stubbs, these sentences "wrongfully" extended his original minimum sentence and unlawfully delayed his appearance before the parole board. See Order to Show Cause, dated July 25, 2002 (reproduced as Ex. E to Fleischmann Decl.), at 1-2.

Respondents subsequently moved to dismiss Stubbs's Article 78 petition pursuant to N.Y.C.P.L.R. § 3211(a)(5) on the grounds of collateral estoppel and res judicata. See Notice of Motion, dated September 11, 2002 (reproduced as Ex. F to Fleischmann Decl.). Respondents argued that the claims raised in the Westchester County petition had already been raised or could have been raised by Stubbs in his prior petition filed in Orange County. Affirmation, undated (reproduced as Ex. F to Fleischmann Decl.), ¶ 5. In support of the motion to dismiss, respondents submitted a letter from de Simone. See Letter from Richard de Simone to Elyse Angelico, Esq., dated July 25, 2002 (reproduced as Ex. G to Fleischmann Decl.). In this letter, de Simone updated Stubbs's status within DOCS, stating that Stubbs had violated his parole in September 2000 and was returned to DOCS custody as a parole violator in June 2001. See id. at 1. In light of this fact, de Simone adjusted the dates in his April 18, 2001 letter by changing both the maximum expiration date and the earliest conditional release date by two days. See id.

On April 3, 2003, Justice Joseph K. West of the Westchester County Supreme Court dismissed the Article 78 petition on the grounds of res judicata and collateral estoppel. See Decision and Order, dated April 3, 2003 (reproduced as Ex. H to Fleischmann Decl.) ("West Decision"), at 1. Specifically, Justice West stated that, after reviewing Justice Slobod's decision in the Orange County proceeding, as well as the claims set forth in the Westchester County petition, he found that the two actions did "indeed address the same claim." See id.

B. The Allegations in the Complaint and Chief Judge Mukasey's Order

On July 23, 2004, Stubbs filed the complaint in the instant action. See Compl. In his complaint, Stubbs named as defendants Bilinski, the Westchester County Clerk, and de Simone. Id. at 3. Stubbs alleged that Bilinski and the Westchester County Clerk delayed the processing of his Article 78 petition and obstructed his right to appeal Justice West's order dismissing the petition to the Appellate Division, Second Department. See id. at 5-10. The complaint also alleged that de Simone created "false time computation records" in calculating Stubbs's conditional release and maximum expiration dates, and that he conspired to "hide" errors committed by DOCS in calculating his sentence.Id. at 7, 10. ___

As noted, Chief Judge Mukasey subsequently dismissed the complaint insofar as it alleged claims against Bilinski and the Westchester County Clerk on the ground that the claims against these individuals were barred by the doctrine of absolute judicial immunity. July 23 Order at 2. Specifically, Chief Judge Mukasey stated that, because "the alleged wrongdoings of defendants Bilinski and the Westchester County Clerk were acts performed in their official capacities as employees of the Westchester County Court, under the direction of the Judges of that Court, plaintiff's claims against these defendants are foreclosed by absolute immunity and therefore must be dismissed."Id. (citation omitted). The order also stated that Stubbs's claims against de Simone were not being dismissed and remained a part of the case. Id.

C. The Allegations in the Amended Complaint

Stubbs subsequently filed an amended complaint, again naming Bilinski, the Westchester County Clerk, and de Simone as defendants. See Am. Compl. at 1. For purposes of this motion, the facts alleged in Stubbs's amended complaint are assumed to be true.

Stubbs alleges that he filed an Article 78 petition in Westchester County Supreme Court on or about January 29, 2002.Id. at 4. The Westchester County Clerk subsequently claimed, however, that he "never received" the petition even though Stubbs mailed the petition to the court and respondents' attorney at the same time and respondents' attorney acknowledged receiving the petition. Id. at 5-6; see Letter from Elyse J. Angelico, Assistant Attorney General to Donald E. Stubbs, dated April 26, 2002 (reproduced as Ex. A to Fleischmann Decl.). Stubbs resubmitted his Article 78 petition to the court but it took "approximately six . . . months" from the time he initially submitted the petition for the court to acknowledge its receipt. Am. Compl. at 6.

Justice West subsequently issued an order to show cause that was drafted by his Law Secretary, Bilinski. Id.; Order to Show Cause, dated July 25, 2002 (reproduced as Ex. E to Fleischmann Decl.). Stubbs noted "several errors" in the order to show cause and these errors were brought to Bilinski's attention. Am. Compl. at 6. For example, the order to show cause was assigned an indictment number instead of a civil case docket number, it incorrectly identified Stubbs "as a 'defendant' rather than the petitioner," and it identified respondents as "the People." Id. Bilinski subsequently told Thomas Dorsey, who contacted Bilinski on Stubbs's behalf, that the errors were "typing errors" and that there was "nothing . . . to worry about." Id. (internal quotation marks omitted). Stubbs, however, "believes" that the Article 78 petition "has been . . . incorrectly filed as acriminal case" because Bilinski had indicated that the Article 78 petition was "a criminal . . . rather than a civil action." Id. at 10-11 (emphasis in original).

In the Westchester County petition, Stubbs sought an order requiring DOCS and DOP "to come forward with proof" as to why his November 1986 and October 1990 convictions resulted in sentences that were imposed consecutively to his sentence stemming from his November 1981 conviction. See id. at 4. The Westchester County petition "alleged and offered proof to the court" establishing that DOCS had "unilaterally 'changed'" the sentence imposed on Stubbs following the November 1981 conviction and "replaced it" with the sentence imposed on him following his October 1990 conviction. See id. at 5. Stubbs also alleges that DOCS "created a false time computation record" stating that he was required to serve more than ten years in excess of his maximum expiration date. See id.

Stubbs alleges that respondents' subsequent motion to dismiss the Article 78 petition was based upon two letters, dated April 18, 2001 and July 25, 2002, from de Simone. Id. at 7. These letters contained "false time computation records" that incorrectly set forth the dates of Stubbs's conditional release and the maximum term of his imprisonment. Id. De Simone relied upon "the wrong mathematical method to calculate [Stubbs's] concurrent and consecutive sentences." Id. at 7-8. De Simone's failure to correctly calculate Stubbs's sentence "dramatically affected the outcome of [Stubbs's] efforts to secure judicial relief." Id. at 7-8. In fact, Stubbs alleges that he "has been wrongfully imprisoned for more than sixty . . . days" beyond his maximum term of imprisonment as of the time the amended complaint was filed because of de Simone's "false time computations." Id. at 12-13.

Stubbs responded to the motion to dismiss by arguing that the issue raised in the Article 78 petition was "a 'continuing error'" that could not "be procedurally barred without a proper judicial review." Id. at 8. Stubbs also alleges that the Orange County court gave him "permission and leave to make an 'appropriate challenge to new calculations.'" Id. at 7.

Stubbs "was left waiting for more than six . . . months" for Justice West to issue a decision. See id. at 8. Stubbs attempted on several occasions to contact Bilinski and the Westchester County Clerk concerning the status of his Article 78 petition. Id. These inquiries, however, "were never acknowledged." Id. Stubbs suffered "a tremendous amount of stress, mental frustration, and anguish" in attempting to find ways to move the Article 78 proceeding forward. Id. Through an attorney, Claudette Spencer, Stubbs eventually contacted Bilinski. Id. Bilinski informed Spencer that there was no record of Stubbs ever having filed an Article 78 petition. Id. Subsequently, however, Spencer "discovered that Bilinski had lost or forgotten about" the Article 78 petition. Id. Bilinski assured Spencer "that an order [would] be drawn-up immediately" for Justice West to sign and that Stubbs would receive the order shortly. Id. at 8-9.

Stubbs received an order dated April 3, 2003 dismissing the Article 78 petition. Id. at 9. Stubbs's "response to the state's motion was never taken into consideration" by the court.Id. The court dismissed Stubbs's petition "without a hearing" and did not review the facts underlying the state's submissions in reaching its decision. Id. at 5.

On or about May 5, 2003, Stubbs "mailed a timely notice of appeal . . . to the Westchester County Clerk's office" in order to appeal the decision dismissing the Article 78 petition. Id. at 9. Stubbs also mailed a copy of his notice of appeal to the Appellate Division, Second Department. Id. Stubbs submitted "several letters to the Westchester County Clerk" and to the Chief Clerk of the Appellate Division, Second Department "requesting that immediate action be taken to commence [his] right to appeal" the decision dismissing the Article 78 petition.Id. at 10; see Letter from Donald E. Stubbs to the County Clerk's Office, Westchester County, dated June 10, 2003 (reproduced as Ex. A to Fleischmann Decl.); Letter from Donald E. Stubbs to James E. Pelzer, dated August 11, 2003 (reproduced as Ex. A to Fleischmann Decl.); Letter from Donald E. Stubbs to James E. Pelzer, dated September 19, 2003 (reproduced as Ex. A to Fleischmann Decl.). These letters were "never acknowledged." Am. Compl. at 10. Stubbs claims that, on September 24, 2003, he received a letter from the office of the calendar clerk of the Westchester County Supreme Court informing him that his "letters were sent to the Westchester County Clerk's office." Id.; see Letter from Supreme Court, Office of the Calendar Clerk to Donald E. Stubbs, dated September 29, 2003 (reproduced as Ex. A to Fleischmann Decl.). As of the time Stubbs submitted his amended complaint, "it ha[d] been approximately eighteen . . . months that the Westchester County Clerk ha[d] failed and neglected to process [the] notice of appeal and its accompanying papers" to the Appellate Division, Second Department. Am. Compl. at 9-10.

Stubbs alleges that his "state and federal right" to appeal the decision dismissing the Article 78 petition has been "obstruct[ed]" by the defendants. Id. at 5 (internal quotation marks omitted). Because of defendants' "deliberate indifference" and "negligence," Stubbs alleges that his constitutional rights have been violated and that he "faces being imprisoned for ten . . . years beyond his maximum" period of incarceration. See id. at 11, 14.

D. Stubbs's Claims for Relief and the Instant Motion to Dismiss

Stubbs claims that his constitutional rights to due process, equal protection and of access to the courts have been violated.See id. at 4, 11-12. Specifically, Stubbs alleges that (1) "the defendants are liable in their individual, private, or official capacities, and responsible for over thirty . . . months of deliberate indifference, negligence, and obstruction of [his] right to due course of justice in state or federal court"; (2) his "right to the equal protection of the . . . laws of the United States has been prejudiced and obstructed by the . . . [acts] of the defendants, as well as by their failures to act"; and (3) his "due process right to appeal the underlying issues in the Article 78 proceeding . . . to the . . . Appellate Division has been effectively obstructed by the acts of the defendants."Id. at 11 (some alterations in original). Stubbs also appears to assert that, if this Court were to find that the issues raised in the Westchester County petition were unreviewable, it would be because defendants failed to properly process his appeal, thereby constituting a violation of his constitutional right of access to the courts. See id. at 11-12. In addition, Stubbs alleges that he suffers from "on-going emotional and psychological stress and fear" as a result of being deprived of his right to equal protection under the law, "the fear of being illegally imprisoned for ten . . . years" beyond his maximum sentence, "prejudice" resulting from the "more than thirty . . . month" delay in the state court proceedings, and "mental and physical exertion from his diligent and exhaustive pro se legal efforts" to obtain judicial relief. Id. at 14-15 (internal quotation marks omitted).

Stubbs contends that de Simone "is chiefly the cause of obstructing [his] due course of justice in state court" because he "failed to make accurate calculations of [Stubbs's] terms of imprisonment in accordance with . . . the methodology pr[e]scribed by state penal law statutes." Id. at 12. According to Stubbs, de Simone's "false time computations" have "denied, obstructed, substantially delayed, and intentionally interfered with [his] civil rights and [his] due course of justice in state court." Id. at 13 (emphasis in original).

Reduced to the essentials, Stubbs now requests that the Court: (1) order the Westchester County Clerk "to forward [his] notice of appeal and the record being appealed from . . . to the . . . Appellate Division . . . within five . . . days of that order, and hold the Westchester County Clerk in contempt and fined at . . . $500.00 . . . [per] day for each day" he fails to do so; (2) appoint him counsel so that he may perfect his appeal to the Appellate Division, Second Department and ensure a "'speedy review'" of all appellate issues; (3) appoint a "private investigator" to review the court file in Westchester County Supreme Court; (4) examine de Simone's sentence calculations and order de Simone "to re-calculate [his] sentence terms in accordance with appropriate state statutes"; and (5) enter an order declaring that defendants "wrongfully interfered, obstructed, and deprived [him] of his due course of justice in state court, and violated [his] constitutional and statutory right to liberty under the uniform laws of the United States." Id. at 15-16. Stubbs also seeks a judgment holding each defendant jointly and severally liable in the amount of $1,000,000 "for loss of services, negligence, incidental damages, personal injury, disfigurements, mental anguish, special damages, and pro se attorney litigation fees and costs." Id. at 17.

De Simone has moved to dismiss the amended complaint. See Notice of Motion, filed January 13, 2005 (Docket #21); Defendant Richard de Simone's Memorandum of Law in Support of his Motion to Dismiss the Amended Complaint, filed January 13, 2005 (Docket #22) ("Def. Mem."). In support of the motion to dismiss, de Simone argues, inter alia, that (1) because Stubbs "has independent and adequate state court remedies available to him, no § 1983 action can lie"; (2) inasmuch as Stubbs requests "that this Court examine defendant de Simone's calculations" and to have his sentence re-calculated in accordance with the requirements of New York state law, any such claim "is barred by the doctrines of res judicata and collateral estoppel"; and (3) all of Stubbs's claims fail on the merits. See Def. Mem. at 6, 10, 13-16. Stubbs has submitted papers in opposition to the motion to dismiss. See Affirmation, filed February 14, 2005 (Docket #29) ("Pl. Aff."). De Simone has submitted a letter in reply. See Letter from Lisa Fleischmann to the Honorable Richard J. Holwell, dated February 16, 2005.

II. APPLICABLE LEGAL PRINCIPLES

A. Motion to Dismiss Pursuant to Rule 12(b)(6)

In resolving a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the Court must accept the factual allegations set forth in the complaint as true and draw all reasonable inferences in favor of the plaintiff. See, e.g., Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n. 1 (2002); Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir. 1996). "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957) (footnote omitted). In making this evaluation, complaints drafted by pro se plaintiffs are held "'to less stringent standards than formal pleadings drafted by lawyers,'" Boddie v. Schnieder, 105 F.3d 857, 860 (2d Cir. 1997) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam)), and they "should be interpreted 'to raise the strongest arguments that they suggest.'" Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). Although a court must construe pro se complaints liberally, especially in instances where a plaintiff alleges civil rights violations, see, e.g., Weinstein v. Albright, 261 F.3d 127, 132 (2d Cir. 2001), apro se litigant is still obligated to comply with the relevant rules of procedural and substantive law. See, e.g., Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983).

B. Law Governing Res Judicata and Collateral Estoppel

Case law has construed 28 U.S.C. § 1257 as providing that, with the exception of habeas corpus review pursuant to 28 U.S.C. § 2254, the United States Supreme Court is the only federal court that may review a state court's judicial decision. See Conway v. Garvey, 2003 WL 22510384, at *4 n. 5 (S.D.N.Y. Nov. 5, 2003),aff'd, 2004 WL 2786380 at *1 (2d Cir. Dec. 6, 2004); accord Aw v. Tun, 2004 WL 3152382, at *1 n. 1 (E.D.N.Y. Oct. 29, 2004). Section 1257, however, does not "stop a district court from exercising subject-matter jurisdiction simply because a party attempts to litigate in federal court a matter previously litigated in state court." Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 125 S. Ct. 1517, 1527 (2005). Rather, "[i]f a federal plaintiff 'present[s] some independent claim, albeit one that denies a legal conclusion that a state court has reached in a case to which he was a party,'" then the federal district court has jurisdiction "'and state law determines whether the defendant prevails under principles of preclusion.'" Id. (quoting GASH Assocs. v. Village of Rosemont, Ill., 995 F.2d 726, 728 (7th Cir. 1993)) (some alterations in original).

"The full faith and credit clause of the Constitution of the United States requires a federal court to give the same preclusive effect to a state court judgment as would be given in the state in which it was rendered." Davidson v. Capuano, 792 F.2d 275, 277-78 (2d Cir. 1986) (citing Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81 (1984)). "The law of preclusion can be divided into two categories: res judicata (claim preclusion) and collateral estoppel (issue preclusion)."See, e.g., Crosland v. City of New York, 140 F. Supp. 2d 300, 309 (S.D.N.Y. 2001), aff'd, 2002 WL 31867823, at *1 (2d Cir. Dec. 20, 2002).

"Under the doctrine of res judicata, 'a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.'" Jacobson v. Fireman's Fund Ins. Co., 111 F.3d 261, 265 (2d Cir. 1997) (quoting Burgos, 14 F.3d at 789). "New York courts have adopted the 'transactional approach' to res judicata, holding that if claims arise out of the same 'factual grouping' they are deemed to be part of the same cause of action and the later claim will be barred without regard to whether it is based upon different legal theories or seeks different or additional relief." Davidson, 792 F.2d at 278 (quoting Smith v. Russell Sage Coll., 54 N.Y.2d 185, 192-93 (1981)).

In instances where an unsuccessful Article 78 plaintiff brings a § 1983 action, courts have held that the applicability of the doctrine of res judicata is limited "because a state court entertaining an Article 78 proceeding does not have the power to award the full measure of relief available in subsequent section 1983 litigation." Vargas v. City of New York, 377 F.3d 200, 205 (2d Cir. 2004) (citing cases);accord Colon v. Coughlin, 58 F.3d 865, 870 n. 3 (2d Cir. 1995); Davis v. Halpern, 813 F.2d 37, 39 (2d Cir. 1987); Dibbs v. Roldan, 356 F. Supp. 2d 340, 351 (S.D.N.Y. 2005). Specifically, because "Article 78 courts are courts of limited jurisdiction and are unable to award monetary damages," the doctrine of res judicata "does not bar claims for damages 'where a plaintiff has previously brought a related Article 78 proceeding alleging a violation of his constitutional rights, and subsequently . . . seeks monetary damages for the violation of those rights.'" Karamoko v. New York City Housing Auth., 170 F. Supp. 2d 372, 377 (S.D.N.Y. 2001) (quoting Beharry v. M.T.A. New York City Transit Auth., 1999 WL 151671, at *15 (E.D.N.Y. Mar. 17, 1999)) (internal citation omitted) (alteration in original),aff'd, 242 F.3d 364 (2d Cir. 2000), cert. denied, 532 U.S. 1041 (2001); see also Caserta v. Selsky, 2002 WL 1359727, at *2 (S.D.N.Y. June 20, 2002) ("Res judicata does not bar a § 1983 action where a plaintiff has previously brought an Article 78 proceeding.") (citing Yusov v. Martinez, 2000 WL 1593387, at *3 (S.D.N.Y. Oct. 24, 2000)).

"Collateral estoppel, or issue preclusion, is a doctrine related to, but distinct from, res judicata." Quadrozzi Concrete Corp. v. City of New York, 2004 WL 2222164, at *5 (S.D.N.Y. Sept. 30, 2004) (citing Flaherty v. Lang, 199 F.3d 607, 613 (2d Cir. 1999)). Under New York law, the doctrine of collateral estoppel applies only if "(1) the issue in question was actually and necessarily decided in a prior proceeding, and (2) the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the first proceeding." Colon, 58 F.3d at 869 (citing cases). The doctrine of collateral estoppel applies in instances where it is "quite clear" that these elements have been satisfied so that a party is not "'precluded from obtaining at least one full hearing on his or her claim.'" Id. (quoting Gramatan Home Investors Corp. v. Lopez, 46 N.Y.2d 481, 485 (1979)). "The party asserting issue preclusion bears the burden of showing that the identical issue was previously decided, while the party against whom the doctrine is asserted bears the burden of showing the absence of a full and fair opportunity to litigate in the prior proceeding." Id. (citing Kaufman v. Eli Lilly Co., 65 N.Y.2d 449, 456 (1985)).

"As in the case of res judicata, a federal court must give a prior state court decision the same preclusive effect, for purposes of collateral estoppel, that the courts of that state would give it." Roucchio v. Coughlin, 923 F. Supp. 360, 378 (E.D.N.Y. 1996) (citing Colon, 58 F.3d at 869 n. 2). Courts have held that the doctrine of collateral estoppel can be relied on as a bar in § 1983 actions to preclude relitigating issues previously decided in an Article 78 proceeding. See, e.g., Robinson v. Scully, 1993 WL 340998, at *4 (S.D.N.Y. Aug. 23, 1993) ("Although a § 1983 claim for damages is not barred by a judgment in an Article 78 proceeding, a federal plaintiff nonetheless may still be barred by the doctrine of collateral estoppel or issue preclusion from relitigating issues that were determined in that proceeding."); Natale v. Koehler, 1991 WL 130192, at *3 (S.D.N.Y. July 9, 1991) ("Although the prior Article 78 proceeding does not preclude [plaintiff] from asserting claims for damages in this action, [plaintiff] may be precluded from relitigating any issues that were decided adversely to him.") (citing cases) (emphasis in original);Caserta, 2002 WL 1359727, at *2 ("[C]ollateral estoppel on the basis of rulings made in Article 78 proceedings does apply to § 1983 actions under New York law.") (citing Yusov, 2000 WL 1593387, at *3).

C. Use of Section 1983 Lawsuit in a Challenge to Duration of Confinement

Supreme Court case law regarding suits brought under 42 U.S.C. § 1983 raises doubts about this Court's ability to consider a number of aspects of Stubbs's complaint. The Supreme Court has made clear that state prisoners may use

only habeas corpus (or similar state) remedies when they seek to invalidate the duration of their confinement — either directly through an injunction compelling speedier release or indirectly through a judicial determination that necessarily implies the unlawfulness of the State's custody. . . . [Our] cases, taken together, indicate that a state prisoner's § 1983 action is barred (absent prior invalidation) — no matter the relief sought (damages or equitable relief), no matter the target of the prisoner's suit (state conduct leading to conviction or internal prison proceedings) — if success in that action would necessarily demonstrate the invalidity of confinement or its duration.

III. ANALYSIS

A. Claims Against Bilinski and the Westchester County Clerk

Stubbs's amended complaint alleges failures on the part of Bilinski and the Westchester County Clerk to properly process the Westchester County petition and Stubbs's appeal of the decision dismissing that petition. See Am. Compl. at 5-6, 8-11. As noted, Chief Judge Mukasey has already concluded that Stubbs's claims against these individuals were barred by the doctrine of absolute judicial immunity. July 23 Order at 2. While there is no question that judicial immunity bars the imposition of money damages, see, e.g., Hili v. Sciarrotta, 140 F.3d 210, 213 (2d Cir. 1998), it is not so clear that judicial immunity bars a suit for injunctive relief. The text of 42 U.S.C. § 1983 contemplates the possibility of a suit for injunctive relief against non-judicial officers — a category that may include the Westchester County Clerk. In addition, the text of the statute also contemplates suits for injunctive relief even against judicial officers in cases where "declaratory relief was unavailable." See 42 U.S.C. § 1983. It is not necessary to explore whether these defendants should remain in the case for purposes of obtaining injunctive relief, however, because Stubbs's constitutional claims fail on the merits. Each is discussed in turn.

1. Due Process Claim

To the extent that Stubbs alleges that his constitutional right to due process was violated by Bilinski and the Westchester County Clerk, this claim must fail. Where a procedural due process claim is based on the "random, unauthorized acts" of a state employee, "the Due Process Clause of the Fourteenth Amendment is not violated when a state employee intentionally deprives an individual of property or liberty, so long as the State provides a meaningful postdeprivation remedy." Hellenic Am. Neighborhood Action Comm. v. City of New York, 101 F.3d 877, 880 (2d Cir. 1996) (citations omitted), cert. dismissed, 521 U.S. 1140 (1997). Here, the alleged deprivation of a liberty interest without due process of law occurred because of the failure of Bilinski and the Westchester County Clerk to properly process Stubbs's Westchester County petition and his appeal of the decision dismissing the petition. Stubbs's complaint can only be read as characterizing these acts as "random" and "unauthorized" — not as part of some "structured environment of established state procedures." Id. An adequate postdeprivation remedy existed because Stubbs was free to institute a new Article 78 proceeding to challenge the alleged failure of Bilinski and the Westchester County Clerk to properly process the Westchester County petition and his appeal from the decision dismissing that petition. See N.Y.C.P.L.R. § 7803(1) (permitting review in Article 78 proceedings of questions concerning "whether [a] body or officer failed to perform a duty enjoined upon it by law"). Because this remedy was available to Stubbs, his due process claims against Bilinski and the Westchester County Clerk must be rejected. See Hellenic Am. Neighborhood, 101 F.3d at 881 (concluding that "an Article 78 proceeding is a perfectly adequate postdeprivation remedy in the present situation" since it affords the petitioner an opportunity "to submit . . . affidavits and other written proof [of their claim]" and allows the petitioner to obtain a trial "where a triable issue of fact is raised") (citations and internal quotation marks omitted) (alterations in original); see also Gudema v. Nassau County, 163 F.3d 717, 725 (2d Cir. 1998) (no due process violation where Article 78 proceeding provided plaintiff with a "meaningful remedy" following the alleged constitutional violation).

2. Equal Protection Claim

Stubbs's equal protection challenge also fails. To state a cause of action for violation of the Equal Protection clause, "plaintiffs in this Circuit traditionally have been required to show both (1) that they were treated differently from other similarly situated individuals, and (2) that such differential treatment was based on 'impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person.'" Harlen Assoc. v. Inc. Vill. of Mineola, 273 F.3d 494, 499 (2d Cir. 2001) (quoting LaTrieste Rest. Cabaret Inc. v. Village of Port Chester, 40 F.3d 587, 590 (2d Cir. 1994)). Here, Stubbs alleges that a series of bureaucratic errors caused the delay in the adjudication of his Article 78 petition and the processing of his appeal. Because nothing in Stubbs's submissions to this Court suggests that his treatment was based on some impermissible consideration, this claim too cannot survive.

3. Access to the Courts Claim

The Supreme Court held in Bounds v. Smith, 430 U.S. 817, 821 (1977) that it is "beyond doubt that prisoners have a constitutional right of access to the courts." The constitutional right of access to the courts is "grounded, as relevant to prisoners, in the constitutional guarantees of equal protection and due process." Bourdon v. Loughren, 386 F.3d 88, 92 (2d Cir. 2004) (citing cases); see also Christopher v. Harbury, 536 U.S. 403, 415 n. 12 (2002) (noting that the basis of the right is "unsettled" but that, in the context of various cases, the Supreme Court has grounded the doctrine in the Privileges and Immunities Clause of Article IV, the First Amendment Petition Clause, the Due Process Clauses of the Fifth and Fourteenth Amendments, and the Equal Protection Clause of the Fourteenth Amendment).

The right of access to the courts "has particular application to prisoners seeking access to the courts, where they are defending against criminal charges, challenging convictions and sentences, and raising civil rights claims about the conditions of their confinement." Bourdon, 386 F.3d at 93 n. 8 (citing cases). The Supreme Court has held that "'meaningful access to the courts is the touchstone'" of this right. Lewis v. Casey, 518 U.S. 343, 351 (1996) (quoting Bounds, 430 U.S. at 823). "In order to establish a violation of a right of access to courts, a plaintiff must demonstrate that a defendant caused 'actual injury,' i.e., took or was responsible for actions that 'hindered [a plaintiff's] efforts to pursue a legal claim.'" Monsky v. Moraghan, 127 F.3d 243, 247 (2d Cir. 1997) (quoting Lewis, 518 U.S. at 351) (internal citation omitted) (alteration in original), cert. denied, 525 U.S. 823 (1998); accord Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003); see also Christopher, 536 U.S. at 415 ("However unsettled the basis of the constitutional right of access to courts, our cases rest on the recognition that the right is ancillary to the underlying claim, without which a plaintiff cannot have suffered injury by being shut out of court.") (footnote omitted). "Th[e] right of access for prisoners . . . encompasses only 'a reasonably adequate opportunity to file nonfrivolous legal claims challenging their convictions or conditions of confinement.'" Johnson v. Rodriguez, 110 F.3d 299, 310-11 (5th Cir.) (quoting Lewis, 518 U.S. at 356),cert. denied, 522 U.S. 995 (1997); accord Jones v. Greninger, 188 F.3d 322, 325 (5th Cir. 1999); see also Cancel v. Goord, 2001 WL 303713, at *4 (S.D.N.Y. Mar. 29, 2001) ("[I]n order to survive a motion to dismiss a plaintiff must allege not only that the defendant's alleged conduct was deliberate and malicious, but also that the defendant's actions resulted in actual injury to the plaintiff such as the dismissal of an otherwise meritorious legal claim.") (citing Lewis, 518 U.S. at 351).

Stubbs is unable to establish that he suffered any "actual injury" resulting from the delay in issuing the ruling on the Westchester County petition or the failure to process his appeal. He has suffered no injury because the claims asserted in the Westchester County petition were lacking in merit based on the collateral estoppel effect of Justice Slobod's decision dismissing the Orange County petition.

In his Orange County petition, Stubbs alleged, inter alia, that the consecutive terms of imprisonment imposed following his November 1986 and October 1990 convictions violated C.P.L. § 430.10 and his right to due process, that imposing consecutive sentences in addition to his original minimum sentence improperly served to augment his original minimum sentence thereby causing him to be incarcerated beyond the maximum term of his sentence, and that his sentence had been incorrectly calculated. See Orange County Petition ¶¶ vii-xi. Justice Slobod rejected these arguments, ruling that Stubbs's sentence had been correctly calculated and that he was not entitled to any reduction in his sentence. See Slobod Decision at 2-3. Following this decision, Stubbs filed the Westchester County petition, in which he set forth identical claims. Thus, in the Westchester County petition Stubbs alleged that sentencing him to consecutive terms of imprisonment following his November 1986 and October 1990 convictions violated C.P.L. § 430.10 and his right to due process, that the imposition of consecutive sentences in addition to his original minimum sentence unlawfully extended his original minimum sentence, and that his conditional release date and sentence had been incorrectly calculated. See Westchester County Petition ¶¶ 5-16. The claims raised by Stubbs in his Westchester County petition, therefore, were barred by the doctrines of res judicata and collateral estoppel. Justice West accordingly dismissed the Article 78 petition on the grounds of res judicata and collateral estoppel, concluding that the claims raised in the Orange County proceeding and the claims set forth in the Westchester County petition did "indeed address the same claim." See West Decision at 1.

Even assuming that Bilinski and the Westchester County Clerk delayed issuing Justice West's decision and obstructed Stubbs's appeal of that decision, those facts could not support the conclusion that Stubbs's constitutional right of access to the courts was violated since any appeal from the underlying decision had no merit. See Johnson, 110 F.3d at 310-11 (right of access to the courts as it pertains to prisoners "encompasses only a reasonably adequate opportunity to file nonfrivolous legal claims challenging their convictions or conditions of confinement") (internal quotation marks and citation omitted);Cancel, 2001 WL 303713, at *4 (in order to establish a violation of the right of access to the courts the plaintiff must show that the defendant's alleged conduct "resulted in actual injury to the plaintiff such as the dismissal of an otherwise meritorious legal claim") (citation omitted). "'[M]eaningful access to the courts is the touchstone'" of this right, Lewis, 518 U.S. at 351 (quoting Bounds, 430 U.S. at 823). Because Stubbs had a meaningful ability to present the claims that formed the basis of his Westchester County petition when he litigated his Orange County petition, his constitutional right of access to the courts was not violated.

B. Stubbs's Claims Against de Simone

De Simone has moved to dismiss the claims Stubbs has asserted against him on the ground that any such claims are "barred by the doctrines of res judicata and collateral estoppel." Def. Mem. at 10. Because the doctrine of collateral estoppel applies to the claims Stubbs has asserted against de Simone, these claims should be dismissed.

1. Stubbs's Claims Against de Simone Were Actually and Necessarily Decided

In determining whether the doctrine of collateral estoppel applies, the Court must first determine if "the issue in question was actually and necessarily decided in a prior proceeding."Colon, 58 F.3d at 869 (citing cases). Here, the allegations Stubbs has asserted against de Simone in his federal complaint are virtually identical to those Stubbs relied upon in his Orange County petition and which Justice Slobod found to be without merit. Compare Orange County Petition ¶¶ vii-xi with Am. Compl. at 7-8, 12-13, 16, and Pl. Aff. ¶ 5. In his federal complaint, Stubbs has asked this Court to examine de Simone's sentence calculations and to order de Simone to "re-calculate [his] sentence terms in accordance with appropriate state statutes." Am. Compl. at 16; see also Pl. Aff. ¶ 5 (alleging that de Simone has failed to correct errors in Stubbs's "prison records" concerning his "release dates"). Stubbs alleges in his federal complaint that de Simone "failed to make accurate calculations of [his] terms of imprisonment," Am. Compl. at 12, and that de Simone relied upon "the wrong mathematical method to calculate" his sentence. Id. at 7-8. Stubbs, therefore, alleges that it was de Simone's failure to make accurate calculations of his term of imprisonment that violated his constitutional rights. See id. at 12-13. Significantly, Justice Slobod concluded after reviewing Stubbs's Orange County petition that Stubbs's sentence had been correctly calculated and that he was not entitled to any reduction in his sentence. See Slobod Decision at 2-3. If this Court were to now find that de Simone improperly calculated Stubbs's sentence and thereby violated Stubbs's constitutional rights, that decision would be contrary to Justice Slobod's conclusion that Stubbs's sentence had been properly calculated and thus would violate the collateral estoppel doctrine. See Richards v. City of New York, 2003 WL 21036365, at *8 (S.D.N.Y. May 7, 2003) (finding that "the issues in question were actually and necessarily decided by the [state court] because plaintiffs' federal claims could succeed only to the extent that the [state court] erred");Crosland, 140 F. Supp. 2d at 310 (barring plaintiff's First Amendment claim because a finding by the federal court that the plaintiff's constitutional rights were violated "would . . . contradict the state court's determination" that an administrative agency's decision to deny plaintiff benefits was rational) (citing cases); see also Beharry, 1999 WL 151671, at *8 (issues were "actually and necessarily decided" in a prior proceeding because "[t]o find otherwise would require th[e] [c]ourt to conclude that the state court's decision upheld a constitutionally infirm (and thus inherently irrational) dismissal action") (citing cases).

2. Stubbs Had a Full and Fair Opportunity to Litigate

In order for the doctrine of collateral estoppel to apply, Stubbs must also have had a "full and fair opportunity to litigate" the issues relating to the question of whether his sentence had been properly calculated in a prior proceeding. See Colon, 58 F.3d at 869 (citing cases). Stubbs does not contend that he did not have a full and fair opportunity to litigate all issues relating to the calculation of his sentence in the Orange County proceeding. Any assertion to the contrary by Stubbs would be without merit since he submitted a petition supported with exhibits, as well as a reply to the respondents' opposition papers. See Slobod Decision at 1. Stubbs also received a decision on the merits concerning the claims raised in the Orange County petition. See id. at 2-3. That Stubbs did not appeal Justice Slobod's decision to the Appellate Division does not mean that he was not afforded a "full and fair opportunity to litigate" the issues raised in the Orange County petition. See Caserta, 2002 WL 1359727, at *3 ("A decision in an Article 78 proceeding need not be reviewed by the state appellate courts for the decision to have a preclusive effect on similar claims in federal court.") (citing Yusov, 2000 WL 1593387, at *4).

To the extent that the amended complaint alleges that Stubbs's right to equal protection under the law was violated because of the allegedly improper calculation of his sentence, see Am. Compl. at 4, 11, Stubbs is also barred from raising this issue since all constitutional claims arising from the allegedly improper sentence calculation could have been raised in the Article 78 proceedings. See Hellenic Am. Neighborhood, 101 F.3d at 881 (stating that "constitutional issues can be decided in Article 78 proceedings") (citing Christ the King Reg. High Sch. v. Culvert, 815 F.2d 219, 224-25 (2d Cir.), cert. denied, 484 U.S. 830 (1987)); accord Crosland, 140 F. Supp. 2d at 311.

To the extent that Stubbs alleges that de Simone's failure to properly calculate his sentence constitutes "a 'continuing error'" that this Court may review, see Am. Compl. at 12, this argument is without merit given that Justice Slobod found no error in the calculation of Stubbs's sentence. See Slobod Decision at 2-3. Because Stubbs had a "full and fair opportunity to litigate" all issues relating to the calculation of his sentence in a prior proceeding, subsequent litigation of those issues is now barred. See Colon, 58 F.3d at 869 (citing cases). Accordingly, Stubbs's claims against de Simone should be dismissed. Conclusion

For the foregoing reasons, Stubbs's amended complaint should be dismissed. Because the problem with Stubbs' complaint is substantive and not one that could be cured with repleading, leave to replead should not be granted. See, e.g., Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).

PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of this Report and Recommendation to file any objections.See also Fed.R.Civ.P. 6(a), (e). Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with copies sent to the Hon. Richard J. Holwell, 500 Pearl Street, New York, New York 10007, and to the undersigned at 40 Centre Street, New York, New York 10007. Any request for an extension of time to file objections must be directed to Judge Holwell. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985).