Opinion
3:24-CV-0750 (AMN/ML)
10-29-2024
CALVIN L. BULLUCK, Plaintiff, v. BROOME COUNTY SECTOR DEP'T OF CORR. AND SUPERVISION, New York State Dep't of Corr. and Cmty. Supervision; DAVID M. STANTON, Administrative Law Judge; LESLIE STRYKOWSKI, Parole Revocation Specialist; and MARIE MANGINO, Parole Officer, Defendants.
CALVIN L. BULLUCK Plaintiff, Pro Se
CALVIN L. BULLUCK Plaintiff, Pro Se
ORDER AND REPORT-RECOMMENDATION
MIROSLAV LOVRIC, United States Magistrate Judge
The Clerk has sent a pro se complaint in the above captioned action together with an application to proceed in forma pauperis and inmate authorization filed by Calvin L. Bulluck (“Plaintiff”) to the Court for review. (Dkt. Nos. 1, 2, 3.) For the reasons discussed below, I grant Plaintiff's in forma pauperis application and recommend that Plaintiff's Complaint be dismissed in its entirety without prejudice but without leave to amend. (Dkt. Nos. 1, 2.)
I. BACKGROUND
Construed as liberally as possible, Plaintiff's Complaint alleges that defendants Broome County Sector Department of Corrections and Supervision, David M. Stanton, Leslie Strykowski, and Marie Mangino (collectively “Defendants”) violated his civil rights. (See generally Dkt. No. 1.)
The court must interpret pro se complaints to raise the strongest arguments they suggest. Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).
More specifically, the Complaint alleges that Plaintiff was released from Fishkill Correctional Facility in November 2020. (Dkt. No. 1 at 5.) The Complaint alleges that on August 23, 2021, Plaintiff was arrested and satisfied a parole violation from August 23, 2021, until August 23, 2022. (Id.) The Complaint alleges that Plaintiff was wronged by Defendants when he was held to his maximum expiration because there was no new charge of a nontechnical nature and he satisfied the previous violation on the same charge. (Id.)
Based on these factual allegations, Plaintiff appears to assert a claim that his due process rights were violated by Defendants. (See generally Dkt. No. 1.) As relief, Plaintiff seeks $1,700,000.00 in damages. (Dkt. No. 1 at 5.)
II. PLAINTIFF'S APPLICATION TO PROCEED IN FORMA PAUPERIS
“28 U.S.C. § 1915 permits an indigent litigant to commence an action in a federal court without prepayment of the filing fee that would ordinarily be charged.” Cash v. Bernstein, 09-CV-1922, 2010 WL 5185047, at *1 (S.D.N.Y. Oct. 26, 2010). “Although an indigent, incarcerated individual need not prepay the filing fee at the time of filing, he must subsequently pay the fee, to the extent he is able to do so, through periodic withdrawals from his inmate accounts.” Cash, 2010 WL 5185047, at *1 (citing 28 U.S.C. § 1915(b); Harris v. City of New York, 607 F.3d 18, 21 (2d Cir. 2010)).
Section § 1915(g) prohibits a prisoner from proceeding in forma pauperis where, absent a showing of “imminent danger of serious physical injury,” a prisoner has filed three or more actions that were subsequently dismissed as frivolous, malicious, or failing to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(g). The Court has reviewed Plaintiff's litigation history on the Federal Judiciary's Public Access to Court Electronic Records (“PACER”) Service. See http://pacer.uspci.uscourts.gov. It does not appear from that review that Plaintiff had accumulated three strikes for purposes of 28 U.S.C. § 1915(g) as of the date this action was commenced.
Upon review, the Court finds that Plaintiff has submitted a completed IFP application which has been certified by an appropriate official at his facility (Dkt. No. 2 at 2), and which demonstrates economic need. See 28 U.S.C. § 1915(a)(2). Plaintiff has also filed the inmate authorization required in the Northern District. (Dkt. No. 3.)
Accordingly, Plaintiff's application to proceed with this action IFP is granted. (Dkt. No. 2.)
III. LEGAL STANDARD FOR REVIEW OF THE COMPLAINT
Having found that Plaintiff met the financial criteria for commencing this action in forma pauperis, the Court must consider the sufficiency of the allegations set forth in the Complaint in light of 28 U.S.C. §§ 1915(e). Section 1915(e) of Title 28 of the United States Code directs that, when a plaintiff seeks to proceed in forma pauperis, “the court shall dismiss the case at any time if the court determines that- . . . (B) the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); see also 28 U.S.C. § 1915A(a) (“The court shall review . . . as soon as practicable . . . a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.”).
To determine whether an action is frivolous, a court must look to see whether the complaint “lacks an arguable basis in either law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).
Additionally, when reviewing a complaint, a court may also look to the Federal Rules of Civil Procedure. Rule 8 of the Federal Rules of Civil Procedure provides that a pleading which sets forth a claim for relief shall contain, inter alia, “a short and plain statement of the claim showing that the pleader is entitled to relief.” See Fed.R.Civ.P. 8(a)(2). The purpose of Rule 8 “is to give fair notice of the claim being asserted so as to permit the adverse party the opportunity to file a responsive answer, prepare an adequate defense and determine whether the doctrine of res judicata is applicable.” Powell v. Marine Midland Bank, 162 F.R.D. 15, 16 (N.D.N.Y. 1995) (McAvoy, C.J.) (quoting Brown v. Califano, 75 F.R.D. 497, 498 (D.D.C. 1977)).
A court should not dismiss a complaint if the plaintiff has stated “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), rev'd on other grounds, 682 Fed.Appx. 30. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While the court should construe the factual allegations in the light most favorable to the plaintiff, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Ashcroft, 556 U.S. at 678. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555). Rule 8 “demands more than an unadorned the-defendant-unlawfully-harmed-me accusation.” Id. Thus, a pleading that contains only allegations which “are so vague as to fail to give the defendants adequate notice of the claims against them” is subject to dismissal. Sheehy v. Brown, 335 Fed.Appx. 102, 104 (2d Cir. 2009).
IV. ANALYSIS
In addressing the sufficiency of a plaintiff's complaint, the court must construe his pleadings liberally. Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008). Having reviewed Plaintiff's Complaint with this principle in mind, I recommend that it be dismissed.
“An individual convicted of a crime may not bring a section 1983 suit for damages that ‘necessarily impl[ies] the invalidity of his conviction or sentence . . . unless [he] can demonstrate that the conviction or sentence has already been invalidated.'” Opperisano v. P.O. Jones, 286 F.Supp.3d 450, 454 (E.D.N.Y. 2018) (quoting Heck v. Humphrey, 512 U.S. 477, 487 (1994)) (additional citations omitted). “Heck's limitation of section 1983 claims has come to be known as the ‘favorable-termination' rule and applies to revocations of parole.” Opperisano, 286 F.Supp.3d at 454 (citing, inter alia, Lee v. Donnaruma, 63 Fed.Appx. 39, 41 (2d Cir. 2003) (“Courts have applied Heck to prevent a state prisoner from bringing a Section 1983 action challenging a parole revocation unless that revocation decision is reversed or the underlying conviction is set aside.”)). “A parolee challenging a parole revocation must therefore demonstrate that his parole revocation has been ‘reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus.'” Id. at 455 (quoting Heck, 512 U.S. at 486-87) (additional citations omitted).
Plaintiff's assertions that (1) Defendant Mangino offered false testimony, and (2) the parole revocation sentence was improperly based on a conviction that Plaintiff had already satisfied, implies the invalidity of his parole revocation determination. Robinson v. Wright, 21-CV-1098, 2023 WL 6122882, at *2-3 (N.D.N.Y. Sept. 19, 2023) (McAvoy, J.) (citing Harris v. City of New York, 01-CV-6927, 2023 WL 554745, at *3 (S.D.N.Y. 2003) (dismissing the plaintiff's section 1983 claim pursuant to Heck insofar as he challenged “the basis” for the parole revocation)).
The Complaint does not allege that Plaintiff's parole revocation determination has been invalidated, or that his underlying conviction has been set aside. (See generally Dkt. No. 1.) Instead, the Complaint alleges that the sentence imposed included incarceration for the maximum expiration of Plaintiff's sentence, and as a result, he missed time with his family that included becoming a grandfather and the death of his wife. (Dkt. No. 1 at 5-6.)
“Heck acknowledged that a plaintiff can bring a § 1983 claim to seek damages for a defendant's use of the ‘wrong procedures, not for reaching the wrong result' so long as such a claim does not call into question the lawfulness of plaintiff's continued confinement.” McAdoo v. Jagiello, 10-CV-0355, 2011 WL 1577236, at *2 (N.D.N.Y. Apr. 26, 2011) (Hurd, J.) (citing Heck, 512 U.S. at 482-83). “In other words, ‘the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the [§ 1983] complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated.'” McAdoo, 2011 WL 1577236, at *2 (quoting Heck, 512 U.S. at 487). “The Supreme Court has clarified that ‘the proper inquiry is whether ‘victory for the prisoners [would] necessarily [mean] immediate release or a shorter period of incarceration.'” Id. at *3 (quoting McKithen v. Brown, 481 F.3d 89, 102 (2d Cir. 2007)); see Chung v. Stanford, 22-CV-1236, 2023 WL 3073497, at *3 (N.D.N.Y. Apr. 25, 2023) (Suddaby, J.); Baker v. New York State Dep't of Corr. & Cmty. Supervision, 17-CV-1270, 2018 WL 357297, at *4 (N.D.N.Y. Jan. 10, 2018) (Suddaby, C.J.) (quoting Wilkinson, 544 U.S. at 8384) (other citation omitted)) (“‘Heck uses the word ‘sentence' interchangeably with . . . ‘continuing confinement' and ‘imprisonment,' thus, any shortening of a term of confinement will be subject to the rule in Heck.”).
In Chung, Judge Suddaby concluded that:
Although Heck held that the favorable-termination rule is triggered when a prisoner's success would “necessarily imply the invalidity of the conviction,” 512 U.S. at 487 (emphasis added), the Supreme Court subsequently clarified that Heck applies to any challenge to the duration of “confinement” that necessarily implies the invalidity of that confinement, even if that challenge would not implicate the underlying conviction or sentence. See Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005) (“[A] state prisoner's § 1983 action is barred . . . if success in that action would necessarily demonstrate the invalidity of confinement or its duration.” (emphasis in original)); Edwards v. Balisok, 520 U.S. 641, 648 (1997) (finding that a prisoner's claim for money damages alleging that he was deprived of good-time credits without due process necessarily implies the invalidity of the “punishment imposed,” meaning the deprivation of the credits); Baker v. New York State Dep't of Corr. & Cmty. Supervision, 17-CV-1270, 2018 WL 357297, at *4 (N.D.N.Y. Jan. 10, 2018) (Suddaby, C.J.) (“While the Complaint does not include any specific request for immediate release, in the motion for injunctive relief, Plaintiff seeks to overturn the Panel's decision and moves for immediate release ....To the extent that the Complaint could be construed as seeking release, Plaintiff's claims are dismissed without prejudice pursuant to Heck, on the ground that habeas corpus is his sole federal remedy.”); McAllister v. Alexandra, 09-CV-0664, 2009 WL 10675934, at *5 (N.D.N.Y. July 28, 2009) (Suddaby, J.) (“Any claim by Plaintiff that he is entitled to damages resulting from the denial of parole release is barred by the doctrine of Heck v. Humphrey[.]”); Grant v. Ahern, 03-CV-0539, 2005 WL 1936175, at *5 n.3 (N.D.N.Y. Aug. 2, 2005) (Magnuson, J.) (quoting Lampkin v. N.Y. City Dep't of Probation, 00-CV-7165, 2001 WL 210362, at *2 (S.D.N.Y. Mar. 1, 2001)) (“Heck has been held to apply to ‘suits contesting the rejection of parole release.'”).2023 WL 3073497, at *3.
Plaintiff's victory on his claims-alleging that (1) his parole revocation determination was “caused” by Defendant Mangino's false testimony, and (2) that the revocation determination and sentence imposed improperly considered a criminal charge that was previously satisfied- would necessarily mean his release or a shorter period of incarceration for his parole violations. Stated differently, Plaintiff's allegations that the parole violations were sustained and he was reincarcerated because of the false testimony of Defendant Mangino and improper consideration of his previous arrest, Plaintiff necessarily implies the invalidity of his conviction and sentence based on Defendants' conduct at his parole revocation hearing. Because Plaintiff has not alleged that his parole revocation determination or subsequent sentence have been invalidated, his due process claims should be barred by Heck. See, e.g., Sumter v. Marion, 98-CV-2744, 1999 WL 767426, at *5 (S.D.N.Y. Sept. 28, 1999) (dismissing § 1983 claim because to find in the plaintiff's favor would require finding that the defendants falsified evidence at the revocation hearing, thus invalidating the result); Sealey v. Fishkin, 96-CV-6303, 1998 WL 1021470, at *5 (E.D.N.Y. Dec. 2, 1998) (dismissing § 1983 claim alleging police officer made false statements to parole officials, ultimately leading to parole revocation).
As a result, I recommend that Plaintiff's claims be dismissed pursuant to the doctrine set forth in Heck.
In the alternative, I recommend that Plaintiff's claims against Defendants Broome County Sector Department of Corrections and Supervision, Stanton, and Strykowski be dismissed based on immunity. First, Defendant Broome County Sector Department of Corrections and Supervision, which Plaintiff alleges is part of the New York State Department of Corrections and Community Supervision (Dkt. No. 1 at 2) is immune from suit pursuant to the Eleventh Amendment. Booker v. NYS DOCCS, 22-CV-2355, 2022 WL 1239592, at *1-2 (S.D.N.Y. Apr. 27, 2022) (“DOCCS is an agency of the State of New York; it is, thus, an arm of that State and enjoys Eleventh Amendment immunity.”). Second, Defendant Stanton is immune from suit pursuant to the doctrine of quasi-judicial immunity, which extends immunity to administrative officials performing discretionary acts of a judicial nature and “bars claims against administrative law judges and hearing examiners performing judicial functions[.]” Harrison v. Bd. of Educ. of Honeoye Falls-Lima Cent. Sch. Dist., 22-CV-6086, 2024 WL 2978242, at *9 (W.D.N.Y. June 13, 2024) (citing DeMerchant v. Springfield Sch. Dist., 05-CV-0316, 2007 WL 495240, at *3 (D. Vt. Feb. 9, 2007); Sassower v. Mangano, 927 F.Supp. 113, 120 (S.D.N.Y. 1996), aff'd 122 F.3d 1057 (2d Cir. 1997)). Third, Defendant Strykowski is likely immune pursuant to the doctrine of quasi-judicial immunity because the Complaint appears to allege that she “formaliz[ed]” his parole violation and thus was performing a task which was judicial in nature and an integral part of the judicial process. See Campbell v. City of Binghamton, NY, 24-CV-0067, 2024 WL 1701980, at *4-5 (N.D.N.Y. Apr. 19, 2024) (Lovric, M.J.) (recommending dismissal of claims against the clerk of the court for her acts that assist a judge in the performance of his or her judicial duties based on the doctrine of quasi-judicial immunity), report and recommendation adopted 2024 WL 3063674 (N.D.N.Y. June 20, 2024) (Nardacci, J.).
V. OPPORTUNITY TO AMEND
Generally, a court should not dismiss claims contained in a complaint filed by a pro se litigant 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.” Branum v. Clark, 927 F.2d 698, 704-05 (2d Cir. 1991); see also Fed.R.Civ.P. 15(a)(2) (“The court should freely give leave when justice so requires.”). An opportunity to amend is not required, however, where “the problem with [the plaintiff's] causes of action is substantive” such that “better pleading will not cure it.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); see also Cortec Indus. Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991) (“Of course, where a plaintiff is unable to allege any fact sufficient to support its claim, a complaint should be dismissed with prejudice.”). Stated differently, “[w]here it appears that granting leave to amend is unlikely to be productive, . . . it is not an abuse of discretion to deny leave to amend.” Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993); accord, Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *1 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.).
See also Carris v. First Student, Inc., 132 F.Supp.3d 321, 340-41 n.1 (N.D.N.Y. 2015) (Suddaby, C.J.) (explaining that the standard set forth in Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 796 (2d Cir. 1999)-that the Court should grant leave to amend “unless the court can rule out any possibility, however unlikely it might be, that an amended complaint would be successful in stating a claim”-is likely not an accurate recitation of the governing law after Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)), rev'd on other grounds, 682 Fed.Appx. 30.
Here, leave to amend would be futile. See Robinson, 2023 WL 6122882, at *5 (citing Hill v. Curcione, 657 F.3d 116, 123-24 (2d Cir. 2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988)) (dismissing the plaintiff's due process claims without prejudice but without leave to amend and stating that the plaintiff may bring a new action if he can establish that his parole revocation determination or subsequent sentence have been invalidated). “[T]he Heck rule bars [a] plaintiff's claims until the underlying conviction is invalidated, and thus providing the plaintiff with an opportunity to amend the complaint is futile until such time that the state court conviction is reversed, invalidated by a federal writ of habeas corpus, or otherwise expunged or declared invalid.” Cruz v. Reilly, 08-CV-1245, 2009 WL 2567990, at *7 (E.D.N.Y. Aug. 18, 2009). Here, “[b]ecause the defects in Plaintiff's complaint [arising from the Heck bar] cannot be cured with an amendment, the Court declines to grant Plaintiff leave to amend his [amended] complaint.” Traore v. New York State Div. of Parole, 22-CV-1431, 2023 WL 207920, at *3 (S.D.N.Y. Jan. 13, 2023). The undersigned recommends dismissal of Plaintiff's claims without prejudice to being brought in a new action if he can establish that his parole revocation determination or subsequent sentence have been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus.
ACCORDINGLY, it is
ORDERED that Plaintiff's application to proceed in forma pauperis (Dkt. No. 2) is GRANTED; and it is further
ORDERED that the Clerk of the Court (1) provide the Superintendent of the facility that Plaintiff has designated as his current location with a copy of Plaintiff's inmate authorization form (Dkt. No. 3) and notify that official that Plaintiff has filed this action and is required to pay the Northern District of New York the entire statutory filing fee of $350.00 in installments, over time, pursuant to 28 U.S.C. § 1915; and (2) provide a copy of Plaintiff's inmate authorization form (Dkt. No. 3) to the Financial Deputy of the Clerk's office; and it is further respectfully
RECOMMENDED that the Court DISMISS the Complaint (Dkt. No. 1) WITHOUT PREJUDICE BUT WITHOUT LEAVE TO REPLEAD pursuant to 28 U.S.C. § 1915(e)(2)(B); and it is further
ORDERED that the Clerk of the Court shall file a copy of this order, report, and recommendation on the docket of this case and serve a copy upon the parties in accordance with the local rules.
The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen 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 DAYS WILL PRECLUDE APPELLATE REVIEW . 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed.R.Civ.P. 6(a), 6(d), 72; 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)).
If you are proceeding pro se and served with this report, recommendation, and order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date that the report, recommendation, and order was mailed to you to serve and file objections. Fed.R.Civ.P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed.R.Civ.P. 6(a)(1)(C).
(Attachment Omitted)