Opinion
9:23-CV-1114 (DNH/MJK)
04-22-2024
LEROY PEOPLES, Plaintiff, v. KATHY HOCHUL, NYS DOCCS COMMISSIONER, and BOARD OF EXAMINERS OF SEX OFFENDERS, Defendants.
LEROY PEOPLES Plaintiff, pro se DAVID C. WHITE, ESQ., Assistant Attorney General
LEROY PEOPLES Plaintiff, pro se
DAVID C. WHITE, ESQ., Assistant Attorney General
HONORABLE DAVID N. HURD JUDGE
REPORT-RECOMMENDATION AND ORDER
MITCHELL J. KATZ, U.S. MAGISTRATE JUDGE
I. INTRODUCTION
Plaintiff, appearing pro se, commenced this action on September 1, 2023 pursuant to 42 U.S.C. § 1983 alleging, among other things, that the address registration requirement of New York State's Sex Offender Registration Act (“SORA”) violates his Constitutional rights under the First, Fourth, Eighth, and Fourteenth Amendments. Presently before the court is defendants' motion to dismiss the complaint (Dkt. No. 1) (“Compl.”) pursuant to Fed.R.Civ.P. 12(b)(1), 12(b)(5), and 12(b)(6). This matter was referred to me for a Report-Recommendation by United States District Court Judge David N. Hurd, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(d). For the following reasons, it is recommended that defendants' motion be granted, and that the complaint be dismissed in its entirety.
Defendant Board of Examiners of Sex Offenders (“Board of Examiners”) moves only pursuant to Fed.R.Civ.P. 12(b)(5) and reserves its right to raise other grounds for dismissal if personal jurisdiction is obtained over it.
II. PROCEDURAL HISTORY
In the present action, Judge Hurd initially reviewed the complaint together with plaintiff's application to proceed in forma pauperis (“IFP”). (Dkt. No. 4). By Decision and Order dated October 6, 2023, the court granted plaintiff's IFP application and, also held that plaintiff's reliance on Doe v. Pataki, 427 F.Supp.2d 398 (S.D.N.Y. 2006) (“Pataki IV”) as a basis for his perceived entitlement to a new classification hearing was time barred by the applicable statute of limitations. (Dkt. No. 4, at 13). The court similarly ruled that plaintiff's claim that the Risk Assessment Instrument (“RAI”) utilized by the Board of Examiners in 2018/2019 was unconstitutionally vague and overbroad was also time barred. Plaintiff's RAI challenge was also dismissed on initial review because the “RAI need not be the optimal tool for predicting recidivism in order to pass constitutional muster.” (Dkt. No. 4, at 15) (citing People v. Bligen, 33 A.D.3d 489, 489-90 (1st Dept. 2006) (“The [RAI] classification procedure satisfies all the requirements of due process.”) (citing Mathews v. Eldridge, 424 U.S. 319 (1976)). Further, the court sua sponte dismissed plaintiff's RAI based claims because the complaint lacked any allegations that plaintiff was deprived of the opportunity to challenge the Board of Examiners' RAI recommendation to the sentencing court. Id.
On initial review, the court noted that notwithstanding that the alleged threat to plaintiff's safety existed before he was initially released on parole in June 2019, “the complaint is devoid of allegations explaining why plaintiff failed to raise the claims asserted in this action in either Peoples v. Leon, or the proceedings that precipitated plaintiff's sex offender classification.” (Dkt. No. 4, at 18). Also, there are no allegations in the complaint that plaintiff sought a modification of his assigned sex offender level based on this alleged change in circumstance before commencing this action. Id.
Relevant to this action is plaintiff's 2018 litigation in this District where he challenged the imposition of certain special conditions associated with his parole. See Peoples v. Leon, No. 9:18-CV-1349 (LEK/ML), 2021 WL 1582173, Dkt. No. 1 (N.D.N.Y. Jan. 4, 2021) (“Peoples v. Leon”).
Despite these potential procedural hurdles, the court was mindful of the Second Circuit's direction that a pro se plaintiff's pleadings be liberally construed. See Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008) (“when [a] plaintiff proceeds pro se, . . . a court is obliged to construe his pleadings liberally”) (citations omitted). The court therefore ruled that plaintiff's constitutional challenge to SORA's address requirement survived sua sponte review and required a response. (Dkt. No. 4, at 9). The court did not express an opinion as to whether plaintiff's claims would withstand a dispositive motion. Id.
In light of the court's October 6, 2023 Decision and Order, only plaintiff's First Amendment, Fourth Amendment, Eight Amendment and Fourteenth Amendment challenges to SORA's address registration requirement survived initial review.
By letter dated February 8, 2024 plaintiff opposed defendants' motion, claiming “that the Court has not issued a Mandatory Scheduling Order which would set deadlines for submissions of dispositive motions; and, the defendants have not yet filed an Answer to the Complaint.” (Dkt. No. 27). Plaintiff's February 8, 2024 letter also voluntarily withdrew all claims against the Board of Examiners and the New York State DOCCS Commissioner.
III. FACTS
On January 12, 2005, plaintiff was convicted of “sex crimes . . . as a member of the Bloods [gang.]” (Compl. at 6). In March 2019 and prior to plaintiff's release from prison on June 5, 2019, the Board of Examiners made a risk level and designation recommendation to plaintiff's sentencing court in accordance with SORA. See Peoples, 2021 WL 1582173, at *5. Pursuant to New York Correction Law § 168-d, the sentencing court designated plaintiff a level three “sexually violent offender.” Id. The address registration requirement that plaintiff now challenges was a condition of his June 2019 parole. See Peoples, 2021 WL 1582173, at *3-5; see also N.Y. Corr. Law § 168-l(6)(c).
Pursuant to Fed.R.Evid. 201, a court may at any stage of a proceeding take judicial notice of “a fact that is not subject to reasonable dispute because it (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” This includes public filings. See In re Howard's Exp., Inc., 151 Fed. App'x. 46, 48 (2d Cir. 2005) (taking judicial notice of Bankruptcy Court docket); Caro v. Fidelity Brokerage Services, LLC, No. 3:12-CV-1066, 2013 WL 3299708, at *6 (D. Conn. July 26, 2013) (taking judicial notice of record in prior litigation between the same parties).
Plaintiff is currently incarcerated on a parole violation. (Compl. at 5). See Peoples, 2021 WL 1582173, at *5 (reciting the special conditions of plaintiff's parole and facts surrounding the charged violation). Plaintiff alleges that he has been in protective custody “on several occasions” throughout his incarceration “because he is a target of gang-violence with a[n] active hit on [his] person.” (Compl. at 5-6).
Plaintiff's five-year period of post-release supervision is scheduled to expire on May 24, 2024. (Compl. at 5). Although plaintiff will be required to register his address pursuant to SORA following his release from incarceration, he “intends to refuse to register as a sex offender . . . because he is a target of gang-violence,” and the publication of his home address places him and his wife in danger. (Compl. at 5-6).
Plaintiff clarifies elsewhere in his complaint that he “will follow all other SORA requirements” except for the home address registration requirement. (Compl. at 7).
Plaintiff's complaint in Peoples v. Leon did not challenge the constitutionality of the address registration requirement on any basis, including the alleged risk of harm he now claims in this action. Peoples, 2021 WL 1582173, Dkt. Nos. 1, 1-1. Notably, there were no allegations in Peoples v. Leon, and there are none in the present case, that plaintiff failed to comply with address registration requirement during the time that he was released on parole in June 2019 and rearrested in August 2019. See Peoples, Dkt. No. 71-27 at 2-3 (identifying the charged parole violations).
IV. BOARD OF EXAMINERS AND NYS DOCCS COMMISSIONER
Insofar as plaintiff's February 8, 2024 letter voluntarily withdrew his claims against defendants Board of Examiners and the New York State DOCCS Commissioner, the court recommends that the complaint be dismissed as against them. The clerk of the court should terminate these defendants from the instant action, and that branch of defendant's motion for relief under Fed.R.Civ.P. 12(b)(5) should otherwise be rendered moot.
V. LEGAL STANDARDS
“Determining the existence of subject matter jurisdiction is a threshold inquiry and a claim is properly dismissed for lack of subject matter jurisdiction . . . 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) (citation omitted). “The plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of the evidence.” Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005); see also Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000) (holding that plaintiff failed to meet is burden of proving subject matter jurisdiction by a preponderance of the evidence). The court “must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of plaintiff.” NRDC v. Johnson, 461 F.3d 164, 171 (2d Cir. 2006) (citation and internal quotation marks omitted). “In resolving a motion to dismiss for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1), a district court . . . may refer to evidence outside the pleadings.” Makarova, 201 F.3d at 113. “If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed.R.Civ.P. 12(h)(3).
To survive a motion pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim, the complaint must contain sufficient factual matter, accepted as true, to state a claim 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)). “[T]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,” do not suffice. Id. (citing Bell Atl. Corp., 550 U.S. at 555). Plaintiff's factual allegations must also be sufficient to give the defendant “‘fair notice of what the . . . claim is and the grounds upon which it rests.'” Bell Atl. Corp., 550 U.S. at 555 (citation omitted).
When ruling on a motion to dismiss, the court must accept as true all the factual allegations contained in the complaint and draw all reasonable inferences in the nonmovant's favor. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (when ruling on a motion to dismiss, the court must accept as true all of the factual allegations contained in the complaint) (citations omitted); see also Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 71 (2d Cir. 1995) (on a de novo review of the district court's 12(b)(6) dismissal of the complaint, all of the factual allegations will be accepted as true). The court may review documents integral to the complaint upon which the plaintiff relied in drafting his pleadings, as well as any documents attached to the complaint as exhibits and any statements or documents incorporated into the complaint by reference. See Rothman v. Gregor, 220 F.3d 81, 88 (2d Cir. 2000) (“For purposes of a motion to dismiss, we have deemed a complaint to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference . . . ”) (citations omitted); see also Int'l Audiotext Network, Inc., 62 F.3d at 72 (the court may take into consideration documents referenced in or attached to the complaint in deciding a motion to dismiss, without converting the proceeding to one for summary judgment). Finally, the court may consider matters of which judicial notice may be taken, such as public filings and administrative decisions. See Kavowras v. New York Times, Co., 328 F.3d 50, 57 (2d Cir. 2003) (citing inter alia County Vanlines, Inc. v. Experian Info. Solutions, Inc., 205 F.R.D. 148, 154 (S.D.N.Y. 2002) (taking judicial notice of NLRB decisions)). The court must heed its obligation to treat pro se pleadings with liberality. See Phillips v. Girdich, 408 F.3d 124, 128 (2d Cir. 2005) (“All complaints must be read liberally; dismissal on the pleadings never is warranted unless the plaintiff's allegations are doomed to fail under any available legal theory.”) (citations omitted) (emphasis in original).
VI. ANALYSIS
A. Subject Matter Jurisdiction
Defendants incorrectly rely on the Rooker-Feldman doctrine as a basis for challenging plaintiff's standing to maintain this action. Under the Rooker-Feldman doctrine - created by two Supreme Court cases, Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16 (1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482-86 (1983) - federal district courts lack subject matter jurisdiction to review final state court orders and judgments where the federal court plaintiff seeks to effectively reject or overturn the state court judgment. See Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005) (holding that Rooker-Feldman bars “cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments”).
Application of the Rooker-Feldman doctrine mandates that the following four elements be satisfied: (1) the plaintiff lost in state court; (2) the plaintiff complains of injuries caused by a state court judgment; (3) the plaintiff invites district court review and rejection of the state court judgment; and (4) the state court judgment was rendered before the district court proceedings were commenced. See Dorce v. City of New York, 2 F.4th 82, 101 (2d Cir. 2021).
Here, plaintiff challenges the constitutionality of the statutory framework of SORA as applied to him and not his underlying designation as a sex offender. Such a challenge “attacks an alleged defect of state . . . legislation rather than adjudication,” Hachamovitch v. DeBuono, 159 F.3d 687, 694 (2d Cir. 1998), and does not implicate the Rooker-Feldman doctrine. See Yunus v. Robinson, No. 17-CV-5839, 2018 WL 3455408 (S.D.N.Y. June 29, 2018). Therefore, defendants have not satisfied the third Rooker-Feldman factor and its reliance on the doctrine is misplaced.
Insofar the Rooker-Feldman doctrine is inapplicable to the facts of this case, the court's inquiry turns to whether plaintiff has standing pursuant to Article III of the United States Constitution. “To establish Article III standing, a plaintiff must show (1) an ‘injury in fact,' (2) a sufficient ‘causal connection between the injury and the conduct complained of,' and (3) a ‘likelihood' that the injury ‘will be redressed by a favorable decision.'” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157-158 (2014) (alterations adopted) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). “An Article III-sufficient injury, however, must be ‘concrete and particularized' and ‘actual or imminent,' not ‘conjectural' or ‘hypothetical.'” Id. at 158 (quoting Lujan, 504 U.S. at 560).
Pre-enforcement challenges to criminal statutes are “cognizable under Article III.” Cayuga Nation v. Tanner, 824 F.3d 321, 331 (2d Cir. 2016). When a plaintiff “has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder, he should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.” Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298 (internal quotation marks omitted). “Put differently, . . . a plaintiff has standing to make a preenforcement challenge ‘when fear of criminal prosecution under an allegedly unconstitutional statute is not imaginary or wholly speculative.'” Hedges v. Obama, 724 F.3d 170, 196 (2d Cir. 2013) (quoting Babbitt, 442 U.S. at 302). As the Supreme Court in Susan B. Anthony List stated, a plaintiff has suffered an injury-in-fact and has standing to bring a case when he is facing the “threatened enforcement of a law” that is “sufficiently imminent.” Susan B. Anthony List, 573 U.S. at 158-59. Specifically, a plaintiff “satisfies the injury-in-fact requirement where he alleges ‘an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder.'” Id. at 159 (quoting Babbitt, 442 U.S. at 298); see also Hedges, 724 F.3d at (2d Cir. 2013) (stating that a plaintiff has “standing to make a pre[-]enforcement challenge when fear of criminal prosecution under an allegedly unconstitutional statute is not imaginary or wholly speculative”) (quotation marks and citation omitted).
A plaintiff need not first “‘expose himself to liability before bringing suit to challenge . . . the constitutionality of a law threatened to be enforced.'” Knife Rights, Inc. v. Vance, 802 F.3d 377, 384 (2d Cir. 2015) (quoting MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128-29 (2007); see also Babbitt, 442 U.S. at 298 (stating that a plaintiff “should not be required to await and undergo a criminal prosecution as the sole means of seeking relief”) (citation omitted). “The identification of a credible threat sufficient to satisfy the imminence requirement of injury in fact necessarily depends on the particular circumstances at issue, and will not be found where plaintiffs do not claim that they have ever been threatened with prosecution, that a prosecution is likely, or even that a prosecution is remotely possible.” Cayuga Nation, 824 F.3d at 331 (quotation marks and citation omitted). Nevertheless, the “standard established in Babbitt ‘sets a low threshold and is quite forgiving to plaintiffs seeking such pre[-]enforcement review,' as courts are generally ‘willing to presume that the government will enforce the law as long as the relevant statute is recent and not moribund.'” Id. (quoting Hedges, 724 F.3d at 197).
Plaintiff has expressly alleged that his “plan is to refuse to register his homeaddress only.” (Compl. at 6), thereby satisfying the injury-in-fact requirement since his failure to comply with SORA's registration requirement is a crime. See N.Y. Corr. Law § 168-t. The possibility of plaintiff being prosecuted for his failure to comply with the address registration requirement “is not imaginary or wholly speculative.” Babbitt, 442 U.S. at 302. Plaintiff therefore has standing to challenge SORA's address registration requirement.
B. Statute of Limitations
Plaintiff brings this action pursuant to 42 U.S.C. § 1983, which establishes a cause of action for “the deprivation of any rights, privileges, or immunities secured by the Constitution and laws” of the United States. See 42 U.S.C. § 1983. “Section 1983 itself creates no substantive rights, [but] . . . only a procedure for redress for the deprivation of rights established elsewhere.” Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993) (citation omitted).
“It is well settled that Section 1983 claims filed in federal court in New York are subject to New York's three-year statute of limitations for personal injury actions.” Dickson v. Schenectady Police Dept., No. 21-CV-0825 (LEK/DJS), 2022 WL 1091615, at *4 (N.D.N.Y. Apr. 12, 2022) (citing Owens v. Okure, 488 U.S. 235, 251 (1989) (holding that New York's three-year statute of limitations for general personal injury actions is applicable to Section 1983 actions filed in federal courts in New York). For statute of limitations purposes, section 1983 actions accrue “from the time a plaintiff knows or has reason to know of the injury giving rise to the claim[.]” Milan v. Wertheimer, 808 F.3d 961, 963 (2d Cir. 2015) (internal quotation marks and citations omitted). “[T]he proper focus is on the time of the [unlawful] act, not the point at which the consequences of the act become[ ] painful.” Eagleston v. Guido, 41 F.3d 865, 871 (2d Cir. 1994) (internal quotation marks, citation, and emphasis omitted); see also Webster v. Himmelbach, 271 F.Supp.3d 458, 467 (W.D.N.Y. 2017) (alterations in original) (quoting Gordon v. Parole Officer Semrug, No. 14-CV-324S(F), 2016 WL 259579, at *4 (W.D.N.Y. Jan. 21, 2016)) (“[W]here the alleged constitutional violation results in an improper restraint on a plaintiff's protected liberty interest, assuming [a p]laintiff has such an interest, . . . [the claim] accrues for purposes of the applicable three-year statute of limitations when the restraint is initially imposed . . . and not when a subsequent violation by a defendant, based on the same, initial unconstitutional conduct, occurs.”).
As relevant to this action, “[c]laims relating to a plaintiff's designation as a sex offender accrue ‘when [the p]laintiff was informed of [the] decision to impose his [sex offender designation.]'” Austin v. Cuomo, No. 1:20-CV-00893, 2020 WL 7352664, at *6 (W.D.N.Y. Dec. 15, 2020) (quoting Gordon v. Parole Officer Semrug, 2016 WL 259579, at *4); see also Webster v. Himmelbach, 271 F.Supp.3d at 466-67; Fowlkes v. Parker, No. 9:08-CV-1198 (LEK/DEP), 2010 WL 5490739, at *9 (N.D.N.Y. Dec. 9, 2010) (finding that “any claim associated with [plaintiff's SORA] registration itself . . . would be untimely since plaintiff was plainly on notice” when he signed a sex offender registration form). Plaintiff's remaining claims challenging his address registration requirement all emanate from his May 2019 sex offender classification. See Peoples, 2021 WL 1582173, at *5. Considering the applicable COVID-19 Executive Orders extending the statute of limitations, plaintiff had until approximately January 2023 within which to commence this action. Plaintiff commenced this action on September 1, 2023, approximately eight months after the expiration of the statute of limitations.
On March 20, 2020, Governor Cuomo issued Executive Order 202.8 which states in relevant part:
[B]y virtue of the authority vested in me by Section 29-a of Article 2-B of the Executive Law to temporarily suspend or modify any statute, local law, ordinance, order, rule, or regulation, or parts thereof, of any agency during a State disaster emergency In accordance with the directive of the Chief Judge of the State to limit court operations to essential matters during the pendency of the COVID-19 health crisis, any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to the civil practice law and rules or by any other statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby tolled from the date of this executive order until April 19, 2020 (emphasis added).Subject to the provision of Executive Law § 29-a(2)(a), Governor Cuomo issued a series of subsequent Executive Orders which further extended statutes of limitation. On October 4, 2020, Governor Cuomo issued Executive Order 202.67, his final extension of statutes of limitation. Executive Order 202.67 states in relevant part:
[B]y virtue of the authority vested in me by Section 29-a of Article 2-B of the Executive Law to temporarily suspend or modify any statute, local law, ordinance, order, rule, or regulation, or parts thereof, of any agency during a State disaster emergency, if compliance with such statute, local law, ordinance, order, rule, or regulation would prevent, hinder, or delay action necessary to cope with the disaster emergency or if necessary to assist or aid in coping with such disaster, or to provide any directive necessary to respond to the disaster, do hereby continue the suspensions and modifications of law, and any directives not superseded by a subsequent directive contained in Executive Orders 202 up to and including 202.21, and 202.27, 202.28, 202.29, 202.30, 202.38, 202.39, 202.40, 202.48, 202.49, 202.50, 202.55 and 202.55.1, as extended, and Executive Order 202.60 for another thirty days through November 3, 2020 The suspension in Executive Order 202.8, as modified and extended in subsequent Executive Orders, that tolled any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding as prescribed by the procedural laws of the state, including but not limited to the civil practice law and rules or by any statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby continued, as modified by prior executive orders, provided however, for any civil case, such suspension is only effective until November 3, 2020, and after such date any such time limit will no longer be tolled (emphasis added).
Under certain circumstances, a plaintiff's untimely claims may be subject to exception, namely under the continuing violation doctrine and/or equitable tolling. “The chief purpose of the [continuing violation] doctrine is to protect the rights of plaintiffs where ‘the earlier discrimination may only be recognized as actionable in the light of events that occurred later.'” Keddy v. Smith Barney, Inc., No. 96 Civ. 2177, 2000 WL 193625, at *3 (S.D.N.Y. Feb. 16, 2000) (quoting Galloway v. Gen. Motors Serv. Parts Operations, 78 F.3d 1164, 1167 (7th Cir. 1996)). Here, however, a continuing violation theory does not cure the untimeliness of plaintiff's claims because “[t]he fact that the detrimental effects of [the] discrete decision [to designate plaintiff as a sex offender] may be continuing does not extend the statute of limitations indefinitely.” Austin v. Cuomo, 2020 WL 7352664, at *7 (quoting Munsch v. Evans, 2012 WL 528135, at *13 (E.D.N.Y. Feb. 17, 2012)); see also Webster v. Himmelbach, 271 F.Supp.3d at 467-68 (plaintiff's action was untimely where “restraint” upon his purported liberty interest in being free from a sex offender classification was initially imposed “when it was first determined that plaintiff would be designated as a [sex offender] and subject to various sex offender supervision restrictions,” notwithstanding plaintiff's subsequent violations of his parole conditions and rerelease to parole supervision).
Nor does the record before this court indicate that the doctrine of equitable tolling cures the untimeliness of plaintiff's remaining claims. Equitable tolling is only available in “rare and exceptional” cases where “extraordinary circumstances prevented a party from timely performing a required act, and . . . the party acted with reasonable diligence throughout the period he sought to toll.” Velez v. Paredez, No. 9:22-CV-0362(LEK/ML), 2022 WL 2904380, at *6 (N.D.N.Y. July 22, 2022) (quoting Walker v. Jastremski, 430 F.3d 560, 564 (2d Cir. 2005)). As the Second Circuit recognized in Abbas v. Dixon, the equitable tolling doctrine applies where a plaintiff demonstrates that he was induced by fraud, misrepresentations, or deception to refrain from timely commencing an action, and that he acted with due diligence throughout the period to be tolled. 480 F.3d 636, 642 (2d Cir. 2007); see also Gonzalez v. Hasty, 651 F.3d 318, 322 (“Equitable tolling is an extraordinary measure that applies only when plaintiff is prevented from filing despite exercising that level of diligence which could reasonably be expected in the circumstances.” (emphasis in original)).
The Second Circuit has cautioned that a court should not dismiss a complaint with prejudice on the basis of an anticipated statute of limitations defense without granting a pro se plaintiff notice and an opportunity to be heard. Id. at 642. Here, Plaintiff does not invoke equitable tolling, nor does he “articulate any acts by defendants that prevented him from timely commencing suit.” Abbas, 480 F.3d at 642 (cleaned up). Defendants would presumably argue that plaintiff had an opportunity to make any argument supporting equitable tolling by opposing the motion to dismiss, and that he forfeited that opportunity by failing to do so. See, e.g., Trapani v. Coryer, No. 14-CV-683 (GTS/CFH), 2016 WL 8732638, at *6 (N.D.N.Y. June 6, 2016), report and recommendation adopted, 2016 WL 8732640 (N.D.N.Y. July 15, 2016) (plaintiff had notice and an opportunity to be heard with respect to tolling arguments through his response to the defense motion to dismiss); see also Muhammadali v. City of New York, 795 Fed.Appx. 70, 71 (2d Cir. 2020) (affirming district court's decision to dismiss an action as time barred where plaintiff was made aware of the statute of limitations issue by the district court ruling, and was “specifically questioned at oral argument [by the Second Circuit] to any fact or legal theory that might warrant tolling of the limitations period . . . [and] [n]either in his brief on appeal nor at oral argument did [plaintiff] identify any legal basis for tolling.”). Here, however, it is notable that the defendants' motion papers made no reference to the possibility that plaintiff could overcome the state-of-limitations defense by asserting viable grounds for equitable tolling. “A pro se litigant might well be confused as to what extrinsic information beyond the scope of his complaint he was allowed to offer in opposition to a motion to dismiss based on the statute of limitation.” Mobley v. Crane, No. 9:21-CV-299 (BKS/ATB), 2021 WL 5813689, at *4 (N.D.N.Y. Nov. 3, 2021), report and recommendation adopted, 2021 WL 5810406 (N.D.N.Y. Dec. 7, 2021) (citing Ellington Long Term Fund, Ltd. v. Goldman, Sachs & Co., No. 09 CIV. 9802, 2010 WL 1838730, at *4 (S.D.N.Y. May 4, 2010) (“Plaintiffs' obligation to produce evidence at the motion to dismiss stage is even further reduced in the context of a motion to dismiss premised on the statute of limitations--an affirmative defense on which the defendant bears the burden of proof.”)).
Accordingly, on the record before it this court recommends that defendants' motion to dismiss be granted based on statute-of-limitations grounds. As further set forth below, this court is alternatively recommending that plaintiff's claims be dismissed for failure to state a claim. However, if the district court rejects the alternative recommendation for dismissal under Rule 12(b)(6), and because the defense papers arguably provided plaintiff with insufficient notice regarding how he could or should respond to the motion to dismiss, I recommend that the District Court allow plaintiff a further opportunity to raise any arguments in support of equitable tolling in any objection he chooses to file to this Report and Recommendation. If plaintiff makes plausible grounds for equitable tolling, the District Court may consider denying the defense motion based on timeliness, or referring the matter back to me for further consideration. If plaintiff fails to object to this Report and Recommendation, he would be more clearly forfeiting his opportunity to argue for equitable tolling, and dismissal of his remaining claims based on untimeliness would be justified.
C. Failure to State a Claim
For the following reasons, the court alternatively recommends that plaintiff's remaining causes of action be dismissed for failure to state a claim.
1. First Amendment
On its face, the complaint fails to allege any specific conduct that could plausibly give rise to a First Amendment claim. However, to the extent plaintiff's complaint can be construed to allege a violation of privacy claim under the First Amendment, the court notes that in Doe v. Cuomo, 755 F.3d 105, 114 (2d Cir. 2014) (“Doe II”), the Second Circuit found that a plaintiff's claim that the SORA registration and notification requirements violated any constitutional right to privacy was unsupported “[g]iven the combination of the nature of the information released (consisting in large part of matters of public record) and the State's strong interest in releasing it.” The court in Doe II also recognized that SORA's requirements “are rationally related to the aim of protecting the public.” Id.; see also Medina v. Cuomo, No. 7:15-CV-01283 (GTS/TWD), 2015 WL 13744627, at *10 (N.D.N.Y. Nov. 9, 2015), report and recommendation adopted, 2016 WL 756539 (N.D.N.Y. Feb. 25, 2016) (citing Cutshall v. Sundquist, 193 F.3d 466, 481 (6th Cir. 1999) (“the Constitution does not provide [plaintiff] with a right to keep his registry information [he was required to provide under the Tennessee Sex Offender Registration and Monitoring Act] private.”)).
In Doe II, the plaintiff argued that the SORA provisions violated his substantive due process rights to privacy and to travel.
Accordingly, the court recommends that plaintiff's First Amendment claim be dismissed.
2. Fourth Amendment
The Fourth Amendment protects an individual's right “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. However, “[o]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure' has occurred,” which implicates a citizen's Fourth Amendment rights. Terry v. Ohio, 392 U.S. 1, n. 16 (1968). To determine whether the Fourth Amendment has been violated, the court “must engage in a two-part analysis: (1) considering all of the circumstances of the case, was there a seizure within the meaning of the Fourth Amendment; and (2) if there was a seizure, was such seizure reasonable.” Jie Yin v. NFTA, 188 F.Supp.3d 259, 270 (W.D.N.Y. 2016) (internal quotation marks and citation omitted).
Here, the complaint is bereft of any allegations that there was a “seizure” of any kind within the meaning of Terry. Plaintiff has not alleged that his liberty has in any way been restrained by means of physical force or show of authority. Even if the address registration requirement of SORA did subject plaintiff to a search or seizure for Fourth Amendment purposes, the Second Circuit has indicated that the same would not be unreasonable. See Doe, 755 F.3d at 115 (“Even if we assume for argument that SORA's requirements subject Doe to a search or seizure for Fourth Amendment purposes, we cannot agree that any such search or seizure is unreasonable.”). In Doe II, the Second Circuit held that any searches or seizures required by SORA “serve special needs - such as the protection of potential future victims and the solving of crimes in the future - and purport neither to facilitate the investigation of any specific crime nor primarily to serve a ‘general interest in crime control.'” Id. (quoting Nicholas v. Goord, 430 F.3d 652, 663, 669 (2d Cir. 2005)). As such, the address registration requirement of SORA does not run afoul of the Fourth Amendment, and the court recommends that plaintiff's Fourth Amendment claim be dismissed.
3. Eighth Amendment
Plaintiff's claim that the address registration requirement mandated by SORA constitutes a violation of his Eighth Amendment right to be free from cruel and unusual punishment is unavailing. Plaintiff complains of the potential physical harm that he and his wife may endure because of plaintiff's prior association with a gang. See Compl. generally.
The Second Circuit has concluded that SORA is regulatory in nature and not punitive. See Doe v. Pataki, 120 F.3d 1263 (2d Cir. 1997); see also Maldonado v. Fischer, No. 11-CV-109, 2012 WL 4461647, at * 3 (W.D.N.Y. Sept. 24, 2012) (recognizing Second Circuit's determination that SORA's registration and community notification provisions were not “punishments” within the meaning of the Ex Post Facto Clause and concluding that plaintiff's allegations of cruel and unusual punishment under SORA failed to state a claim); Cain v. Michigan, No. 14-12567, 2015 WL 249296, at * 7 (E.D. Mich. Jan. 20, 2015) (because the Michigan sex offender registration act was found to be regulatory rather than punitive, plaintiff failed to state a claim for cruel and unusual punishment under the Eighth Amendment). Therefore, SORA does not violate the Eighth Amendment's prohibition against cruel and unusual punishment, and the court recommends that plaintiff's Eighth Amendment claim be dismissed.
4. Fourteenth Amendment
a. Procedural Due Process Claim
Section five of the complaint indicates that plaintiff is seeking relief for alleged violations of his due process rights. (Compl. at 4). When a person's liberty interests are implicated, due process requires at a minimum notice and an opportunity to be heard. See Hamdi v. Rumsfeld, 542 U.S. 507, 533 (2004) (The “central meaning of procedural due process” is that parties “whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified. It is equally fundamental that the right to notice and an opportunity to be heard must be granted at a meaningful time and in a meaningful manner.”) (citations and internal quotation marks omitted).
Assuming, for the sake of this analysis, that plaintiff's claims implicate a cognizable liberty interest for Fourteenth Amendment purposes, his procedural due process claim nonetheless lacks merit. SORA provides an elaborate procedural scheme for making and challenging sex offender level designations. Once the Board of Examiners makes a recommendation regarding the appropriate level to be assigned, the matter is remitted to the sentencing court to make the actual determination. See N.Y. Corr. Law § 168-n(2). Prior to that determination, the offender is provided notification of the recommendation and an opportunity to be heard, with counsel to be assigned in appropriate circumstances. See N.Y. Corr. Law § 168-n(3). Once the designation is made by the sentencing court, the offender can then appeal the determination. Id.
Although the issue of whether requiring an individual to register as a sex offender implicates a liberty interest does not appear to have been conclusively decided in this Circuit, there are district court decisions that have found that a stigma plus liberty interest is implicated when an individual is required to register under SORA, since the stigma attached may affect the registered person in other areas such as employment. See Woe v. Spitzer, 571 F.Supp.2d 382, 387 (E.D.N.Y. 2008) (holding that SORA implicates a protected liberty interest) (citing Doe v. Pataki, 3 F.Supp.2d 456 (S.D.N.Y. 1998)). Medina v. Cuomo, No. 7:15-CV-01283 (GTS/TWD), 2015 WL 13744627, at *13 (N.D.N.Y. Nov. 9, 2015), report and recommendation adopted, 2016 WL 756539 (N.D.N.Y. Feb. 25, 2016).
Here, SORA's procedural safeguards afforded plaintiff the opportunity to be heard regarding his classification both prior to and after he was classified as a level three “sexually violent offender,” thereby satisfying the procedural due process clause of the Fourteenth Amendment. See McQuilkin v. Central New York Psychiatric Center, No. 9:08-CV-00975 (TJM/DEP), 2010 WL 3765847, at * 20 (N.D.N.Y. Aug. 27, 2010) (finding that since defendants followed the procedures outlined in N.Y. Correction Law 402 the prison inmate plaintiff was afforded adequate due process prior to his involuntary commitment to a mental health facility), report and recommendation adopted, 2010 WL 3765715 (N.D.N.Y. Sept. 20, 2010).
Absent from the complaint are any allegations that plaintiff was denied the procedural safeguards afforded by SORA during any portion of the classification proceedings. Plaintiff does not allege that he was denied the opportunity to be heard either prior to or after the sentencing court designated him a level three “sexually violent offender.” Even affording the complaint the most liberal reading, the court recommends that plaintiff's Fourteenth Amendment procedural due process claim be dismissed.
b. Substantive Due Process
The Fourteenth Amendment prohibits states from “depriv[ing] any person of life, liberty, or property, without due process of law.” U.S. Cont. amend. XIV § 1. “Substantive due process is an outer limit on the legitimacy of governmental action,” Natale v. Town of Ridgefield, 170 F.3d 258, 263 (2d Cir. 1999), which “protects against government action that is arbitrary, conscience-shocking, or oppressive in a constitutional sense, but not against government action that is incorrect or ill-advised.” Kaluczky v. City of White Plains, 57 F.3d 202, 211 (2d Cir. 1995).
In determining whether a statute or regulation “infringes a substantive due process right,” the Court first must determine “whether the right is fundamental.” Goe v. Zucker, 43 F.4th 19, 30 (2d Cir. 2022), cert. denied, 143 S.Ct. 1020 (2023). “Rights are fundamental when they are implicit in the concept of ordered liberty, or deeply rooted in this Nation's history and tradition.” Id. When an infringed right is fundamental, courts “apply strict scrutiny, and the government regulation must be narrowly tailored to serve a compelling state interest.” Id. However, “[w]hen a claimed right is not fundamental,” the court applies “rational basis review, and the government regulation need only be reasonably related to a legitimate state objective.” Id.
Insofar as the Second Circuit in Doe v. Pataki, 120 F.3d 1263 (2d Cir. 1997) held that SORA is regulatory and not punitive, the court concludes that plaintiff “has not plausibly alleged any fundamental right is infringed by SORA's notification and registration provisions.” Kelsey v. Sherman, No. 22-CV-1934, 2023 WL 3739925, at *12 (S.D.N.Y. May 31, 2023). “Since freedom from sex offender registration is not a ‘fundamental right,' as that term is used in constitutional analysis, this Court must apply the ‘rational basis' test, which does not ask whether the statute is wise, nor even whether it is substantially related to an important governmental objective, but only whether it is ‘rationally related to a legitimate government interest.'” Yunus v. Robinson, No. 17-CV-5839, 2018 WL 3455408, at *21 (quoting Winston v. City of Syracuse, 887 F.3d 553, 566 (2d Cir. 2018) (holding that city could not constitutionally terminate water service to tenants whose landlords failed to pay their water bills).
“New York courts have found that the legislature's intent in enacting SORA was to “‘protect[] vulnerable populations[,] and in some instances the public, from potential harm' posed by sex offenders.'” People v. Alemany, 13 N.Y.3d 424, 430 (2009) (citations omitted); see also North v. Bd. of Exam'rs of Sex Offenders of N.Y., 8 N.Y.3d 745, 752 (2007) (“SORA is a remedial statute intended to prevent future crime; its aim is to ‘protect communities by notifying them of the presence of individuals who may present a danger and enhancing law enforcement authorities' ability to fight sex crimes'” (citing Pataki, 120 F.3d at 1276)).
The court finds that plaintiff's challenge to the constitutionality of SORA's address registration requirement is without merit, as it is rationally related to New York State's interest in, among other things, protecting its vulnerable population, being able to monitor the whereabouts of sex offenders and aiding law enforcement. As such, the court recommends that plaintiff's Fourteenth Amendment substantive due process claim be dismissed.
WHEREFORE, IT IS
RECOMMENDED that the complaint be dismissed as against defendants NYS DOCCS Commissioner and Board of Examiners of Sex Offenders and that the clerk enter judgment pursuant to Fed.R.Civ.P. 41(a)(2) dismissing the action against them with prejudice;
RECOMMENDED, that defendants' motion to dismiss plaintiff's complaint for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6) be GRANTED, and plaintiff's complaint be DISMISSED in its entirety; and it is further
RECOMMENDED that defendants' motion to dismiss plaintiff's complaint as time-barred by the statute of limitations be GRANTED unless, in objections to this Report and Recommendation, plaintiff asserts plausible grounds supporting equitable tolling of the applicable statute of limitations for a sufficient time period to render the filing date of his complaint timely; and it is further
ORDERED that the Clerk provide Plaintiff with a copy of this ReportRecommendation and Order, along with copies of the unpublished decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), 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 DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec'y of Health and Hum. Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72.