Opinion
Civil Action No. 9:08-cv-1205 (GLS/DEP).
April 1, 2010
FOR THE PLAINTIFF: CEDRICK TRUELUCK, Plaintiff, Pro Se, Ocala, Florida.
FOR THE DEFENDANTS: CHARLES J. QUACKENBUSH, ESQ., Assistant Attorney General, HON. ANDREW M. CUOMO, Attorney General of the State of New York, The Capitol, Albany, New York.
ORDER
The above-captioned matter comes to this court following a Report-Recommendation by Magistrate Judge David E. Peebles, duly filed February 23, 2010. Following ten days from the service thereof, the Clerk has sent the file, including any and all objections filed by the parties herein.
No objections having been filed, and the court having reviewed the Magistrate Judge's Report-Recommendation for clear error, it is hereby
In light of the procedural posture of this case, the following recitation is drawn principally from plaintiff's complaint, the contents of which have been accepted as true for purposes of the pending motion. See Erickson v. Pardus, 551 U.S. 89, 127 S. Ct. 2197, 2200 (2007) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1965 (2007)); see also Cooper v. Pate, 378 U.S. 546, 546, 84 S. Ct. 1733, 1734 (1964).
ORDERED, that the Report-Recommendation of Magistrate Judge David E. Peebles filed February 23, 2010 is ACCEPTED in its entirety for the reasons state therein, and it is further
ORDERED, that defendants' motion to dismiss (Dkt. No. 32) is GRANTED and that plaintiff's complaint is dismissed in its entirety as against all defendants, with prejudice, except as to defendants Patricia Tappan, Irene Platt, and Joseph Gawloski, who are dismissed from the action on the procedural basis that plaintiff failed to effect timely service, without prejudice, and it is further
ORDERED, that the Clerk of the court serve a copy of this order upon the parties in accordance with this court's local rules.
IT IS SO ORDERED.
REPORT AND RECOMMENDATION
Plaintiff Cedric Trueluck, a former New York State prison inmate who is proceeding pro se and in forma pauperis, has commenced this action against the New York State Board of Parole ("BOP") and various BOP Commissioners and other personnel pursuant to 42 U.S.C. § 1983, alleging deprivation of rights guaranteed both under the United States Constitution and by state statute. Plaintiff's claims center upon his assertion that when considering him for parole in 2000, 2002, 2004, and 2006, BOP personnel failed to obtain and consider a sentencing transcript from the court in which he was convicted, thereby denying him fair and impartial parole consideration. Plaintiff's complaint seeks to recover compensatory and punitive damages as well as declaratory and injunctive relief.In response to plaintiff's complaint, defendants have moved for its dismissal on a variety of grounds. In their motion, defendants argue that 1) plaintiff's claims are now moot because he has been released from prison; 2) plaintiff has no cognizable, constitutionally protected interest in the granting of parole; and 3) they are immune from suit both in their official capacities and as individuals. Defendants also contend that portions of plaintiff's claims, including those accruing more than three years prior to commencement of this action, are time-barred. Having considered the arguments raised by the defendants, I recommend that their motion, which plaintiff does not oppose, be granted.
I. BACKGROUND
Plaintiff Trueluck's copy of the report-recommendation was returned undeliverable as addressed . . . unable to forward. See Dkt. No. 37. Plaintiff was previously warned of the consequences for his failure to update the court of his current address. See Dkt. Nos. 4 and 7. In fact, while this litigation has been pending, the plaintiff previously updated his address in compliance with the court's January 26, 2009 order. See Dkt. No. 8.
At the times relevant to his claims, the plaintiff was entrusted to the care and custody of the New York Department of Correctional Services ("DOCS") as a result of a 1992 manslaughter conviction. See generally Complaint (Dkt. No. 1); see also https://nysdocslookup.docs.state.ny.us (screenshot attached as Appendix A). Plaintiff was released from DOCS custody to parole supervision on November 10, 2008. Id.
Plaintiff's claims in this action stem from his periodic appearances before various three-member parole panels, dating back to 2000. Complaint (Dkt. No. 1) ¶ 3. The plaintiff was interviewed and considered for parole on May 17, 2000, May 1, 2002, May 12, 2004, and July 25, 2006. Id. According to the plaintiff, parole officials failed to obtain and review minutes of his sentencing before conducting those hearings. Id. After each interview the plaintiff was denied parole. Id.
After being denied parole in 2006, plaintiff commenced a proceeding pursuant to Article 78 of the New York Civil Practice Law and Rules in Bronx County Supreme Court. Complaint (Dkt. No. 1) ¶ 3. After the matter was transferred to Albany County, a decision was issued on April 23, 2008 ordering the Parole Board to obtain the plaintiff's sentencing transcript for consideration in connection with the parole determination and to conduct a new parole hearing. Id. Plaintiff's application for parole was subsequently granted. Id.
II. PROCEDURAL HISTORY
Plaintiff commenced this action on November 10, 2008. Dkt. No. 1. Named as defendants in plaintiff's complaint are the New York State Board of Parole; BOP Commissioners Vanessa Clark, Irene Platt, Joseph Gawloski, Daiszzee Bouey, Marietta Gailor, William W. Smith Jr., Patricia Tappan, William Crowe, Patrick Gallivan, Christina Hernandez, and Kevin G. Ludlow; BOP Panel Chairmen Robert Dennison and George Alexander; and Facility Parole Officers Rande D. Nezezon, L.M. Fairchild, Lester G. Edwards, and Cynthia Martin. Id. In his complaint, plaintiff asserts various state statutory and constitutional claims, alleging that 1) defendants denied him the right to a fair hearing by failing to obtain and review his sentencing minutes prior to the scheduled parole hearings; 2) defendants followed unofficial and unwritten policies and procedures in denying plaintiff parole based upon his violent felony conviction; and 3) two of the defendants retaliated against him in June of 2008 by denying him a fair parole hearing in response to his having exercised his right to seek judicial redress. Plaintiff's complaint demands compensatory damages in the amount of $450,000 and an additional award of punitive damages totaling $1.85 million.
In response to plaintiff's complaint, on April 29, 2009 those defendants who have thus far appeared in the action interposed a motion seeking dismissal of all or some of plaintiff's claims on a variety of bases. Dkt. No. 32. In their motion, defendants argue that 1) plaintiff's claims are moot in light of his release and the fact that he no longer has a personal stake in the BOP's practices and procedures; 2) plaintiff's constitutional claims lack merit since New York inmates have no cognizable liberty interest in being granted parole; 3) all or some of plaintiff's claims are precluded by the Eleventh Amendment; 4) defendants are absolutely immune from suit; and 5) certain of plaintiff's claims are barred by the governing statute of limitations. Id. Plaintiff has not filed any opposition to defendants' motion, which is now ripe for determination and has been referred to me for the issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See also Fed.R.Civ.P. 72(b).
As will be seen, the court has yet to acquire jurisdiction over defendants Platt, Gawloski, and Tappan, despite pendency of the action for more than a year. As a result, I am recommending dismissal of plaintiff's claims against them, without prejudice. See pp. 34 — 37, post.
III. DISCUSSION
A. Plaintiff's Failure To Respond
In addressing defendants' motion the court does not have the benefit of any submission by the plaintiff setting forth his arguments in opposition. Plaintiff's failure to oppose the motion, however, does not preclude the court from deciding it. See, e.g., White v. Mitchell, No. 99-CV-8519, 2001 WL 64756, at *1 (E.D.N.Y. Jan. 18, 2001). A motion to dismiss tests only the legal sufficiency of the plaintiff's complaint; accordingly, since the plaintiff has been afforded a reasonable opportunity to respond to the motion but has failed to avail himself of that chance, the court can now determine the complaint's sufficiency as a matter of law based on its own reading of the complaint and knowledge of the case law. McCall v. Pataki, 232 F.3d 321, 322-23 (2d Cir. 2000).
Copies of all unreported decisions cited in this document have been attached collectively as Appendix B for the convenience of the pro se plaintiff.
It should be noted, however, that plaintiff's failure to respond in opposition to the pending motion is not without significance. Under this court's local rules a party's failure to respond to a properly filed motion can properly be regarded as consent to the granting of that motion, which under such circumstances should occur provided the court determines that the moving party has met his or her burden of demonstrating facial entitlement to the relief requested. N.D.N.Y.L.R. 7.1(b)(3); see also McCall, 232 F.3d at 322-23 (holding that plaintiff's failure to respond to motion to dismiss in and of itself could not constitute basis for dismissal if plaintiff's complaint stated a claim for relief); White, 2001 WL 64756, at n. 2 (citing McCall). Accordingly, I recommend that the court review defendants' motion for facial sufficiency and, upon a finding they have demonstrated entitlement to the relief sought, that the motion be granted.
B. Dismissal Motion Standard
Defendants' motion is brought pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Such a motion calls upon a court to gauge the facial sufficiency of that pleading, utilizing as a backdrop a pleading standard which, though unexacting in its requirements, "demands more than an unadorned, the-defendant-unlawfully-harmed me accusation" in order to withstand scrutiny. Ashcroft v. Iqbal, ___ U.S. ___, ___, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555, 127 S. Ct. 1955, (2007)). Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). Id. While modest in its requirement, that rule commands that a complaint contain more than mere legal conclusions; "[w]hile legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Ashcroft, 129 S.Ct. at 1950.
To withstand a motion to dismiss, a complaint must plead sufficient facts which, when accepted as true, state a claim which is plausible on its face. Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir. 2008) (citing Twombly, 550 U.S. at 570, 127 S. Ct. at 1974). As the Second Circuit has observed, "[w]hile Twombly does not require heightened fact pleading of specifics, it does require enough facts to 'nudge [plaintiffs'] claims across the line from conceivable to plausible.'" In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir. 2007) (quoting Twombly, 550 U.S. at 570 127 S. Ct. at 1974).
C. Mootness
In their motion defendants first urge the court to find that the claims set forth in plaintiff's complaint are moot in light of the fact that he has now been granted parole. Defendants assert that plaintiff no longer has the requisite stake in the BOP's practices and procedures inasmuch as the "wrong" he claims to have suffered has been remedied, and there is no reasonable possibility that the circumstances of which he complains will be repeated.
The "case or controversy" requirement of Article III of the United States Constitution limits the ability of a federal court to exercise jurisdiction over cases no longer presenting an actual, live dispute between parties. Catanzano v. Wing, 277 F.3d 99, 107 (2d Cir. 2001) ( citing Lewis v. Continental Bank Corp., 494 U.S. 472, 477-78, 110 S. Ct. 1249, 1253-54 (1990)). When a live controversy ceases to exist or parties lack a "legally cognizable interest" in the outcome of the case, such as where the relief sought has been afforded through non-judicial avenues, the case is moot and a federal court no longer possess subject matter jurisdiction over the matter. Catanzano, 277 F.3d at 107 (citing and quoting Powell v. McCormack, 395 U.S. 486, 496, 89 S. Ct. 1944 (1969)); see also Fox v. Bd. of Trus. of State Univ. of N.Y., 42 F.3d 135, 140 (2d Cir. 1994), cert. denied, 515 U.S. 1169, 115 S. Ct. 2634 (1995); Martin-Trigona v. Shiff, 702 F.2d 380, 386 (2d Cir. 1986).
As an exception to the mootness doctrine, a federal court may entertain an action when presented with a claim that is "capable of repetition, yet evading review." Omlstead v. Zimring, 527 U.S. 581, 594 n. 6, 119 S. Ct. 2176, 2184 n. 6 (1999). An otherwise moot claim is properly regarded as "capable of repetition" if 1) the duration of the challenged condition was too limited in duration to permit litigation prior to its cessation, or 2) if there is a reasonable expectation that the plaintiff will be subject to the same action again. Weinstein v. Bradford, 423 U.S. 147, 149, 96 S. Ct 347, 349 (1975). A federal court may also entertain a claim if collateral consequences would ensue from denial of the relief sought on mootness grounds. Werber v. U.S., 149 F.3d 172, 176 (1998) (appeal was not moot where resolution of the sentence issue raised affected how long the defendant would remain in jail).
The United States Supreme Court has recognized that the mootness doctrine may serve as a bar to recovery when a prisoner who is no longer in custody challenges the denial of parole. See Spencer v. Kemna, 523 U.S. 1, 7-8, 118 S. Ct. 978, 983 (1998). In Spencer, a habeas proceeding brought pursuant to 28 U.S.C. § 2254, the petitioner did not attack his conviction but instead challenged only the wrongful termination of his parole status. Id. Since the reincarceration that he experienced as a result of the action ended, and he could not again be subject to arrest or parole revocation based upon his original conviction, the Court concluded that dismissal on the basis of mootness was proper. Id. at 17-18, 118 S. Ct. at 988.
The plaintiff in this case alleges that because the defendants did not obtain and review his sentencing minutes before he appeared at various parole hearings, he was denied the fundamental right to a fair hearing. Complaint (Dkt. No. 1) ¶¶ 3-4. Defendants argue that since plaintiff is only challenging the procedures implemented by the defendants, and not the resulting parole denials themselves, and he has now been released from incarceration, his claim is moot.
It is undeniable that in light of plaintiff's release from prison, his claim for injunctive relief no longer presents a live controversy. Plaintiff's request for injunctive relief appears aimed at requiring the defendants to follow proper procedures in connection with his parole hearings, and does not purport to direct that he be released on parole. See Complaint (Dkt. No. 1) ¶ 9. Plaintiff is no longer in a position to benefit from the injunctive relief sought, however, since he has already been paroled.
It should be noted that defendants' mootness argument extends beyond plaintiff's request for equitable relief. Defendants argue that because Trueluck has been released on parole his entire claim, including for damages, is now moot. The essence of plaintiff's claim is that by failing to provide him with fair consideration in connection with the various parole hearings conducted prior to his release defendants have denied him due process, a violation for which he should be compensated in damages. To the extent plaintiff seeks such damages, his claim is not moot. See Board of Pardons v. Allen, 482 U.S. 369, 371 n. 1, 107 S. Ct. 2415, 2417 n. 1 (1987) (in civil rights suit brought by Montana prisoners against the state's Board of Pardons claiming due process violations prisoners' release did not render the action moot since compensatory damages were sought in addition to injunctive relief); see also Powell, 395 U.S. at 495-500, 89 S. Ct. 1950-53.
Based upon the foregoing, while I recommend denial of plaintiff's request for injunctive relief as moot, the portion of defendants' motion seeking dismissal of plaintiff's complaint altogether on the basis of mootness should be denied.
D. Merits Of Plaintiff's Due Process Claim
Defendants next argue that because New York State prison inmates possess neither a liberty interest in parole nor a constitutional right to due process in connection with the parole process prescribed by the State, and plaintiff's complaint alleges only a violation of state statute which is not cognizable under 42 U.S.C. § 1983, his claim is legally deficient and thus subject to dismissal.
To successfully state a claim under 42 U.S.C. § 1983 for denial of due process, a plaintiff must show that he or she 1) possessed an actual liberty interest, and 2) was deprived of that interest without being afforded sufficient process. See Tellier v. Fields, 280 F.3d 69, 79-80 (2d Cir. 2000) (citations omitted); Hynes v. Squillace, 143 F.3d 653, 658 (2d Cir.), cert. denied, 525 U.S. 907 S. Ct. 246 (1998); Bedoya v. Coughlin, 91 F.3d 349, 351-52 (2d Cir. 1996); Wolff v. McDonnell, 418 U.S. 539, 558, 94 S. Ct. 2963, 2976 (1974). As a threshold matter, the court must therefore determine whether there is a protected liberty interest at stake in the case. Kentucky Dep't of Corrs. v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 1908 (1989)).
Courts have long held that generally speaking, prison inmates do not enjoy a constitutionally protected right to release on parole unless the state in question has created a protectable liberty interest through its prescribed parole scheme. Standley v. Dennison, No. 9:05-CV-1022, 2007 WL 2406909, at *1 (N.D.N.Y. Aug. 21, 2007) (Sharpe, J. Lowe, M. J.); Allen v. New York, No. 9:05-CV-1613, 2006 WL 2864951 at *1 (N.D.N.Y. Oct. 5, 2006) (Mordue, C. J.); see also Lee v. Governor of New York, 87 F. 3d 55, 58-59 (2d Cir. 1996). The court must therefore determine whether New York's statutory parole regime creates a protected liberty interest sufficient to trigger the Fourteenth Amendment's procedural due process requirements. As the Second Circuit has noted, "[i]n order for a state prisoner to have an interest in parole that is protected by the Due Process Clause, he [or she] must have a legitimate expectancy of release that is grounded in the state's statutory scheme. . . . Neither the mere possibility of release, . . . nor a statistical probability of release, . . . gives rise to a legitimate expectancy of release on parole. Barna v. Travis, 239 F.3d 169, 170-71 (2d Cir. 2001) (per curiam) (citations omitted).
Against this backdrop, analysis of New York's parole provisions reveals no basis to find the existence of a protected liberty interest in being released on parole. Marvin v. Goord, 255 F.3d 40, 44 (2d Cir. 2001); Barna, 239 F.3d at 171; see also Larocco v. New York State Div. of Parole, No. 9:05-CV-1602, 2006 WL 1313341, at *2 (N.D.N.Y. May 12, 2006) (McAvoy, S.J.). New York Executive Law § 259-i(2)(c), the statute governing the New York parole process, affords broad discretion to the BOP in determining whether to grant or deny an inmate's application for early release. For this reason, the Second Circuit has recognized that the New York's parole scheme creates no legitimate expectation of release mandating that an inmate seeking release be afforded procedural due process protection. Duemmel v. Fischer, No. 9:08-CV-1006, 2009 WL 174364, at *1 (N.D.N.Y. Jan. 23, 2009) (McAvoy, S. J.); see Barna, 239 F.3d at 171; see also Morel v. Thomas, No. 02 CV 9622, 2003 WL 21488017, at *4 (S.D.N.Y. June 26, 2003).
This is not to say that a New York prison inmate may constitutionally be denied parole for purely arbitrary or otherwise impermissible reasons. Boddie v. N.Y. Div. of Parole, 288 F. Supp.2d 431, 440 (S.D.N.Y. 2003). To the contrary, courts have recognized a limited due process right of New York inmates not to be denied parole for arbitrary or capricious reasons or based on a protected classification or irrational distinction. See Standley, 2007 WL 2406909, at *9; see also Graziano v. Pataki, No. 06 Civ. 0480, 2006 WL 2023082, at *7-9 (S.D.N.Y. July 17, 2006) (holding that prison inmates do not have a constitutional right to release on parole, but recognizing "a due process right to have the decision made only in accordance with the statutory criteria" specified by state law.)
The plaintiff in this case does not allege in his complaint that the denial of his parole was arbitrary or capricious or that it was based upon a suspect classification. Instead, plaintiff maintains that the defendants did not comply with state law requiring that the Parole Board obtain his sentencing transcript and consider the recommendation of the sentencing court when making a decision regarding parole. At the outset, it should be noted that it is not at all clear, as plaintiff argues, that parole authorities were obligated by state law to obtain and review his sentencing transcript in connection with the various parole hearings. The relevant statutory provision appears to require consideration of the recommendation of the sentencing court only in cases where a minimum period of imprisonment is not fixed by the sentencing court. N.Y. Exec. Law § 295-i(2)(c)(A); see Standley, 2007 WL 2406909, at *9, n. 55. In this instance, plaintiff's manslaughter conviction resulted in a sentence that included a minimum period of incarceration of eight and one-third years. More fundamentally, even assuming such a violation occurred, as the Second Circuit has noted, violations of state law procedural requirements alone do not constitute a deprivation of due process. Russell v. Coughlin, 910 F.2d 75, 78 n. 1 (2d Cir. 1990).
While plaintiff does allege that the rejection of his application for parole resulted from a denial of his right to equal protection to the extent it may have been based on his status as a violent offender, see Complaint (Dkt. No. 1) ¶ 6, as will be seen that claim is facially lacking in merit. See pp. 19-21, post.
It should be noted that there is no independent constitutional right to sentencing minutes at a parole hearing. See, e.g., Germenis v. N.Y. Dep't of Corr. Services, No. 08 Civ. 8968 (GEL), 2009 WL 2877646, at *4-5 (S.D.N.Y. Sept. 9, 2009).
Trueluck may argue that the defendants acted irrationally in failing to consider the sentencing minutes of his criminal conviction at his parole hearings. New York law directs that the parole determination is to be informed by consideration of certain factors listed including the inmate's sentencing record, but does not specify the weight to be accorded each factor. N.Y. Exec. Law § 259-i(2)(c)(A); Mitchell v. Conway, No. 04 CV 1088, 2006 WL 508086, at *4 (E.D.N.Y. Mar. 1, 2006). That section specifically provides that
In his complaint plaintiff does not elaborate as to what information the sentencing transcript would disclose and how it would be relevant to the parole decision.
[d]iscretionary release on parole shall not be granted merely as a reward for good conduct or efficient performance of duties while confined but after considering if there is a reasonable probability that, if such inmate is released, he will live and remain at liberty without violating the law, and that his release is not incompatible with the welfare of society and will not so deprecate the seriousness of his crime as to undermine respect for law.
N.Y. Exec. Law § 259-i(2)(c)(A). Additionally, the BOP is entitled to determine that a prisoner's criminal history and the nature of his or her criminal conduct outweighs any of the other statutory factors present that may be used to determine parole. See Siao-Pao v. Mazzuca, 442 F. Supp.2d 148, 154 (S.D.N.Y. 2006). Thus, even if the plaintiff was denied parole as a matter of BOP's policy to deny early release to violent offenders, as he now appears to argue, a federal due process claim would not lie. McLaurin v. Paterson, No. 07 Civ 3482 (PAC) (FM), 2008 WL 3402304, at * 1 (S.D.N.Y. Aug. 11, 2008). "The parole board may in its discretion find that any one of these factors, including the severity of the inmate's offense of conviction, outweighs the other factors in a particular case and is grounds to deny parole." Mitchell, 2006 WL 508086, at *4 (emphasis added).
In this instance, nothing in plaintiff's complaint establishes a plausible claim that he was denied due process in connection with the denials of parole at issue. Although plaintiff alleges a violation of a procedural requirement set forth in the applicable state law provisions — an allegation which, as previously noted, is of questionable validity under the circumstances of this case — that alleged violation does not rise to a level sufficient to support a due process cause of action. Cf. Boddie, 285 F.Supp.2d at 429-30 (use of uncorrected pre-sentence report and statement of incorrect facts in a parole decision did not violate due process). I therefore recommend dismissal of plaintiff's due process claim based upon his inability to establish the deprivation of cognizable liberty interest or to allege that the denial of parole was arbitrary and capricious. Larocco, 2006 WL 1313341, at *3.
E. Equal Protection
Although plaintiff's complaint makes no explicit reference to the alleged denial of equal protection, read liberally it could be construed to assert such a claim. Specifically, plaintiff's complaint intimates that he was discriminated against when denied parole on the basis of his status as a violent offender. See Complaint (Dkt. No. 1) ¶ 6. In their motion, defendants also seek dismissal of any such claim.
The equal protection clause of the Fourteenth Amendment commands that no State shall "deny to any person within its jurisdiction the equal protection of the laws." City of Cleburne, Tx. v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S. Ct. 3249, 3254 (1985) (citation omitted). The equal protection clause, however, does not forbid all classifications. Curtis v. Pataki, No. 96-CV-425, 1997 WL 614285, at *3 (N.D.N.Y Oct. 1, 1997) (Pooler, J. DiBianco, M.J.) (citing Nicholas v. Tucker, 114 F.3d 17, 20 (2d Cir. 1997)). Unless either a fundamental right is implicated or a distinction is created that burdens a suspect class, defendants must only demonstrate that their challenged actions in differentiating between groups were rationally related to a legitimate government interest. Id. It should be noted that prison inmates are not a suspect class; accordingly, when making classifications prison administrators "'need only demonstrate a rational basis for their distinctions.'" Hameed v. Coughlin, 37 F. Supp.2d 133, 137 (N.D.N.Y. 1999) (citing Jones v. North Carolina Prisoners' Union, Inc., 433 U.S. 119, 134, 97 S. Ct. 2532 (1977)); Nicholas, 114 F.3d at 20.
Plaintiff's potential equal protection claim is lacking in merit. The claim hinges upon his contention that violent felony offenders are similarly situated to non-violent offenders, a position which has been soundly rejected by the courts. See Standley, 2007 WL 2406909, at *13. As many courts have recognized, distinguishing between these two groups for purposes of parole determinations is "entirely appropriate and not at all invidious." Parks v. Edwards, No. 03 CV 5588 (JG), 2004 WL 377658, at *4 (E.D.N.Y. Mar. 1, 2004); Standley, 2007 WL 2406909, at *13. I therefore recommend a finding that any potential equal protection claim by the plaintiff is not plausible, and is thus subject to dismissal.
F. Retaliation
When liberally construed plaintiff's fifth cause of action could be interpreted as including a claim of unlawful retaliation. Complaint (Dkt. No. 1) ¶ 8. The essence of that claim appears to be that in retaliation for having challenged the failure of parole officials to obtain and review a transcript of his sentencing transcript by way of an Article 78 proceeding filed in the state court, plaintiff was denied a fair and impartial parole hearing in June of 2008. Id. Although defendants have not similarly construed plaintiff's complaint and challenged this potential retaliation claim, for the following reasons I nonetheless find any such claim is lacking merit.
When adverse action is taken by prison officials against an inmate, motivated by the inmate's exercise of a right protected under the Constitution including the free speech provisions of the First Amendment, a cognizable retaliation claim under 42 U.S.C. § 1983 lies. See Franco v. Kelly, 854 F.2d 584, 588-90 (2d Cir. 1988). As the Second Circuit has repeatedly cautioned, however, such claims are easily incanted and inmates often attribute adverse action, including the issuance of misbehavior reports, to retaliatory animus; courts must therefore approach such claims "with skepticism and particular care." Dawes v. Walker, 239 F.3d 489, 491 (2d Cir. 2001) (citing Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983)), overruled on other grounds, Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S. Ct. 992 (2002); Davis v. Goord, 320 F.3d 346, 352 (2d Cir. 2003) (same).
In order to state a prima facie claim under section 1983 for retaliatory conduct, a plaintiff must advance non-conclusory allegations establishing that 1) the conduct at issue was protected; 2) the defendants took adverse action against the plaintiff; and 3) there was a causal connection between the protected activity and the adverse action — in other words, that the protected conduct was a "substantial or motivating factor" in the prison officials' decision to take action against the plaintiff. Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S. Ct. 568, 576 (1977); Dillon v. Morano, 497 F.3d 247, 251 (2d Cir. 2007); Dawes, 239 F.3d at 492 (2d Cir. 2001). If the plaintiff carries this burden, to avoid liability the defendants must show by a preponderance of the evidence that they would have taken action against the plaintiff "even in the absence of the protected conduct." Mount Healthy, 429 U.S. at 287, 97 S. Ct. at 576. If taken for both proper and improper reasons, state action may be upheld if the action would have been taken based on the proper reasons alone. Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (citations omitted).
As can be seen, a critical element of a First Amendment retaliation claim is that the plaintiff experienced some form of adverse consequence attributable to the protected activity involved. In this instance plaintiff has not alleged, and under the circumstances now known to the court would be unable to establish, the existence of adverse action stemming from the June 2008 parole hearing. It appears from information available to the court that the hearing, in fact, resulted in the granting of parole. It thus appears that, while plaintiff may have been dissatisfied with the tenor of the June 22, 2008 hearing, the end result was favorable and therefore does not qualify as adverse action sufficient to support a retaliation claim. See Cruz v. Hillman, No. 01 Civ. 4169, 2002 WL 31045864, at *7 (S.D.N.Y. May 16, 2002) (noting that "[c]ertain means of 'retaliation' may be so de minimus as not to inhibit or punish an inmate's right to free speech [, and] many verbal responses of officials of resentment or even ridicule . . . fall into this safe harbor. . . .") (quoting Dawes, 239 F.3d at 493). Accordingly, to the extent plaintiff's fifth cause of action is deemed to include within it a retaliation claim I recommend that the claim be dismissed.
G. Eleventh Amendment
Plaintiff seeks compensatory damages against the defendants, each of whom is alleged to be a BOP employee, for what he alleges are failures on their part to fulfill their official state duties. To the extent that damages are sought against them in their official capacity, defendants' motion seeks dismissal of that claim on the basis of the protection afforded under of the Eleventh Amendment.
The Eleventh Amendment protects a state against suits brought in federal court by citizens of that state, regardless of the nature of the relief sought. Alabama v. Pugh, 438 U.S. 781, 782, 98 S. Ct. 3057, 3057-58 (1978). This absolute immunity which states enjoy under the Eleventh Amendment extends both to state agencies, and to state officials sued for damages in their official capacities when the essence of the claim involved seeks recovery from the state as the real party in interest. Richards v. State of New York Appellate Division, Second Dep't, 597 F. Supp. 689, 691 (E.D.N.Y. 1984) (citing Pugh and Cory v. White, 457 U.S. 85, 89-91, 102 S. Ct. 2325, 2328-29 (1982)). To the extent that a state official is sued for damages in his official capacity the official is entitled to invoke the Eleventh Amendment immunity belonging to the state. Kentucky v. Graham, 473 U.S. 159, 166-67, 105 S. Ct. 3099, 3105 (1985); Hafer v. Melo, 502 U.S. 21, 25, 112 S. Ct. 358, 361 (1991).
Since plaintiff's damage claims against the eighteen defendants in their official government-employee capacity are the equivalent of claims against the State of New York, they are subject to dismissal under the Eleventh Amendment state-employee exception. Daisernia v. State of New York, 582 F. Supp. 792, 798-99 (N.D.N.Y. 1984) (McCurn, J.). I therefore recommend dismissal of plaintiff's damage claims against the defendants in their official capacities.
H. Absolute Immunity
In their motion defendants also maintain that as BOP employees, they are entitled to absolute immunity from suit since plaintiff's claims involve functions related to their decision of whether to grant, deny, or revoke parole. The cornerstone of defendants' argument is the adjudicative nature of the function they perform as parole commissioners and is based principally upon the Second Circuit's decision in Montero v. Travis, 171 F.3d 757 (2d Cir. 1999); see also King v. Simpson, 189 F.3d 284, 287 (2d Cir. 1999).
To ensure a properly functioning penal system, a parole board official should "be free to act upon his [or her] convictions, without apprehension of personal consequences to himself [or herself]." Montero, 171 F.3d at 760-761 (quoting Bradley v. Fischer, 80 U.S. 335, 347 (1871)). Immunity assumes that a risk of error and potential injury outweighs not deciding or acting at all. Scheuer v. Rhodes, 416 U.S. 232, 242, 94 S. Ct 1683, 1689 (1974). "The Second Circuit [has] . . . held that Parole Board officials are entitled to absolute immunity from liability for damages under § 1983 for their decisions to grant, deny, or revoke parole." Barna v. Travis, No. 97 CV 1146, 1999 WL 305515, at *2 (N.D.N.Y. Apr. 22, 1999) (Smith, M. J.), aff'd, 239 F.3d 169 (2d Cir. 2001) (citing Montero, 171 F.3d at 760). To qualify for absolute immunity, parole officials must have been engaged in the performance of an adjudicative function at the time of the challenged action. Montero, 171 F.3d at 761; see also Farid v. Bouey, 554 F. Supp.2d 301, 317 (N.D.N.Y. 2008). Parole board officials are provided absolute immunity when performing adjudicative functions in order to preserve impartiality in decision-making and to depreciate the overall costs of defending frivolous inmate suits. Montero, 171 F.3d at 760-61. Further, a state official is entitled to qualified immunity when the officer has an "objectively reasonable basis for believing in the lawfulness of his actions". LeDuc v. Tilley, No. 3:05CV157, 2005 WL 1475334, at *6 n. 1 (D. Conn. June 22, 2005) (citing Connecticut v. Crotty, 346 F.3d 84, 101-02 (2d Cir. 2005)).
It should be noted that the Supreme court has been "sparing" in recognizing claims of absolute immunity ( Forrester v. White, 484 U.S. 219, 224, 108 S. Ct. 538, 542 (1988)), as absolute immunity should be limited to circumstances where the official is able to demonstrate that application of absolute, rather than qualified, immunity is required by public policy. Scotto v. Almenas, 143 F.3d 105, 110 (2d Cir. 1988) (citations omitted). A parole officer who claims the benefit of absolute immunity thus bears the burden of proof. DiBlasio v. Novello, 344 F.3d 292, 297 (2d Cir. 2003), cert. denied, 541 U.S. 988, 124 S. Ct. 2018 (Apr. 19, 2004) (quoting Butz v. Economou, 438 U.S. 478, 515, 98 S. Ct 2894, 2915 (1978)).
Absolute immunity is less likely to attach when the official function involved is less adjudicative, such as when the officer acts under his own initiative rather than that of the court. Scotto, 143 F.3d at 111. In determining the applicability of absolute immunity, there must be a specific inquiry into the facts of the situation at hand to determine whether the particular acts or responsibilities of the officers fall within the confines of the absolute immunity doctrine. King, 189 F. 3d at 288. If the officer's "function was administrative rather than adjudicative or prosecutorial and not integrally related to the judicial process," qualified, not absolute, immunity would attach. Id. at 288 (citing Scotto, 143 F.2d at 111-13). If a judicial function was performed, even if it was done in an erroneous manner the function does not become any less judicial in nature. Quartararo v. Catterson, 917 F. Supp 919, 951 (E.D.N.Y. 1996) (quoting Tarter v. State of New York, 68 N.Y.2d 511, 517-18, 503 N.E.2d 84, 87 (1986)).
Plaintiff alleges that he was deprived of his constitutional rights by the defendants, all BOP employees, through their performance of official adjudicative functions, including by conducting parole hearings and denying him release to supervision. Those functions are precisely the type to which absolute immunity is applicable. See Montero, 171 F.3d at 761. I therefore recommend dismissal of both compensatory and punitive damage claims against the defendants because plaintiff's claims clearly stem from defendant's participation in an adjudicative process.
In addition to seeking damages, the plaintiff has also requested injunctive relief. Although absolute immunity precludes the plaintiff from succeeding on a claim for damages, it does not prohibit injunctive relief against the defendants. Such a claim for relief, however, is barred in this case on other grounds.
As was earlier noted, in this instance any claim by plaintiff for injunctive relief is moot. See pp. 9-13, ante.
In 1996 Congress adopted the Federal Courts Improvement Act of 1976, Pub.L. No. 104-317, 110 Stat. 3847, 3853 (1996). Section 309(c) of that Act amended 42 U.S.C. § 1983 to add the provision "that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. . . ." Federal Courts Improvement Act of 1976 § 309(c); see LeDuc, 2005 WL 1475334, at *7. Although the added provision of section 1983 references only judicial officers, for the same reason parole board members are ordinarily entitled to absolute immunity based upon the quasi-adjudicatory function which they perform, so too are they entitled to the benefit of this provision precluding the issuance of injunctive relief. See Montero, 171 F.3d at 761. Since the plaintiff has not demonstrated the unavailability of declaratory relief as an exception, his claim for injunctive relief under section 1983 in this action is therefore also barred. Id.
I. Statute of Limitations
In their motion, defendants additionally seek dismissal of certain of plaintiff's claims based upon the governing statute of limitations. The focus of defendants' statute of limitations argument is upon those of plaintiff's claims accruing more than three years prior to commencement of this action.
The applicable limitation period for a claim asserted under 42 U.S.C. § 1983 is derived from the general or residual statute of limitations for personal injury actions under the laws of the forum state. See Owens v. Okure, 488 U.S. 235, 249-50, 109 S. Ct. 573, 582 (1989). Plaintiff's claim in this action is accordingly governed by the three-year statute of limitations which applies in New York to personal injury claims of an otherwise unspecified nature. See N.Y.C.P.L.R. § 214(5); see also Ormiston v. Nelson, 117 F.3d 69, 71 (2d Cir. 1997) (quoting Owens); Pinaud v. County of Suffolk, 52 F.3d 1139, 1156 (2d Cir. 1995); Lugo v. Senkowski, 114 F. Supp.2d 111, 113 (N.D.N.Y. 2000) (citing Pinaud and Owens).
In calculating the three-year statutory limitation period, under the "prison mailbox rule" courts presume that a pleading is filed when it is submitted to the prison officials. McLaurin v. Paterson, No. 07 Civ. 3482, 2008 WL 3402304, at * 10 (S.D.N.Y. Aug. 11, 2008); s ee also Nobel v. Kelly, 246 F.3d 93, 97 (2d Cir.), cert. denied, 534 U.S. 886, 122 S. Ct. 197 (2001). Additionally, when applying the applicable limitations period the courts consider a claim to accrue when the plaintiff "'knows or has reason to know of the injury which is the basis of his [or her] action.'" Singleton v. City of New York, 632 F.2d 185, 191 (2d Cir. 1980) (internal quotations and citation omitted), cert. denied, 450 U.S. 920, 101 S. Ct. 1368 (1981).
In gauging the timeliness of the plaintiff's claims, I have taken note of the fact that while the plaintiff's complaint in this action was filed on November 10, 2008, it is dated September 17, 2008. At this juncture, without the benefit of more information concerning when plaintiff's complaint was given to prison officials for mailing to the court, all that can be said with certainty is that his claims are facially untimely unless found to have accrued on or after September 17, 2005. Plaintiff's claims related to his parole denials in May of 2000, May, 2002, May, 2004, and July, 2004 are therefore time-barred absent a basis to find equitable tolling.
Although not raised in Trueluck's complaint, the question may arise whether the statute of limitations should be considered as having been tolled during the pendency of his Article 78 proceeding. While federal law determines when a section 1983 claim accrues, state tolling principles determine whether the limitations period has been tolled, unless those rules would "'defeat the goals'" of section 1983. Pearl v. City of Long Beach, 296 F.3d 76, 80 (2d Cir. 2002) (quoting Hardin v. Straub, 490 U.S. 536, 539, 109 S. Ct. 1998, 2000 (1989)). Under New York law, there is no tolling while a litigant pursues related but independent causes of action. See Board of Regents v. Tomanio, 446 U.S. 478, 484-87, 100 S. Ct. 1790, 1795-96 (1980). Accordingly, a plaintiff's pursuit of a state remedy does not toll the statute of limitations for filing a claim pursuant to section 1983. Abbas v. Dixon, 480 F.3d 636, 641 (2d Cir. 2007) (citing Meyer v. Frank, 550 F.2d 726, 728-730 (2d Cir. 1977) and Williams v. Walsh, 558 F.2d 667, 673 (2d Cir. 1977)).
Equitable tolling is a doctrine applied in "'rare and exceptional circumstances,' where [the court finds] that 'extraordinary circumstances' prevented a party from timely performing a required act and that party 'acted with reasonable diligence throughout the period he [sought] to toll.'" Czernicki v. U.S. Dep't of Justice, 137 Fed. Appx. 409, 410-11, 2005 WL 1498456, at *1 (2d Cir. 2005) (summary order cited in accordance with Fed.R.App.Proc. 32.1) (citing and quoting Doe v. Menefee, 391 F.3d 147, 159-60 (2d Cir. 2004)). The doctrine may be applied where a statute of limitations has passed due to "'defective pleading'" or the defendant's "'misconduct'" in preventing the plaintiff from bringing his claim or learning of the cause of action. Id. (citing Irwin v. Dep't of Veterans Affairs, 489 U.S. 89, 96, 111 S. Ct. 453, 112 L.Ed.2d 435 (1990); Kronisch v. United States, 150 F.3d 112, 123 (2d Cir. 1998). In this instance plaintiff has not alleged any circumstances that would support a finding of equitable tolling.
J. Failure To Effectuate Service
A review of the docket sheet in this matter reflects that summonses issued for defendants Patricia Tappan, Irene Platt, and Joseph Gawloski were returned on or about March 20, 2009 together with an indication that the acknowledgment of service forms forwarded by mail to those defendants by the United States Marshal Service were returned unexecuted. Dkt. Nos. 21-23. The return of those unexecuted summonses prompted a letter dated April 23, 2009 from the court to Trueluck requesting additional information in order to assist in effectuating service upon those three defendants. Dkt. No. 30. Despite that letter plaintiff has not provided the requested information, and jurisdiction has not been acquired over the three unserved defendants.
Although defendants' motion does not explicitly request this relief, the court has sua sponte decided to raise the question of whether plaintiff's claims should proceed against the three unserved defendants. This decision to raise the issue rests upon the requirement, imposed by Rule 4(m) of the Federal Rules of Civil Procedure, that service be made within 120 days of issuance of the summons, absent a court order extending that period. "[W]here good cause is shown, the court has no choice but to extend the time for service, and the inquiry is ended." Panaras v. Liquid Carbonic Indus. Corp., 94 F.3d 338, 340 (7th Cir. 1996). "If, however, good cause does not exist, the court may, in its discretion, either dismiss the action without prejudice or direct that service be effected within a specified time." Id. (citing Fed.R.Civ.P. 4(m)); Zapata v. City of New York, 502 F.3d 192, 196 (2d Cir. 2007) ("[D]istrict courts have discretion to grant extensions even in the absence of good cause."); Romandette v. Weetabix Co., Inc., 807 F.2d 309, 311 (2d Cir. 1986). When examining whether to extend the prescribed period for service, a district court is afforded ample discretion to weigh the "overlapping equitable considerations" involved in determining whether good cause exists and whether an extension may be granted in the absence of good cause. See Zapata, 502 F.3d at 197.
Although plaintiff, who in any event as not responded to defendants' motion, was not alerted to the fact that dismissal of his claims against the three unserved defendants was under consideration, plaintiff will nonetheless have an opportunity to argue against the recommended dismissal when filing objections to this report with the assigned district judge, the Hon. Gary L. Sharpe.
That rule provides that
[i]f a defendant is not served within 120 days after the complaint is filed, the court — on motion or on its own after notice to the plaintiff — must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. . . .
Fed.R.Civ.P. 4(m). This court's local rules shorten the time for service from the 120 day period under Rule 4(m) to sixty days. See N.D.N.Y.L.R. 4.1(b).
A plaintiff's pro se status entitles him or her to a certain degree of leniency insofar as service of process is concerned; courts generally favor resolution of a case on its merits rather than on the basis of a procedural technicality. Poulakis v. Amtrak, 139 F.R.D. 107, 109 (N.D. Ill. 1991). When a plaintiff proceeds in forma pauperis, as is the case here, the court is obligated to issue the plaintiff's process to the United States Marshal who must, in turn, effect service upon the defendants, thereby relieving the plaintiff of the burden to serve process once reasonable steps have been taken to identify for the court the defendants named in the complaint. Byrd v. Stone, 94 F.3d 217, 219 (6th Cir. 1996). That does not mean, however, that a pro se plaintiff may stand idly by upon being notified that efforts by the United States Marshals Service to serve a particular defendant have been unsuccessful. VanDiver v. Martin, 304 F. Supp.2d 934, 938-43 (E.D. Mich. 2004). In such instances it is incumbent upon the plaintiff to develop, though pretrial discovery or otherwise, any additional information necessary to permit service by the United States Marshals Service. See id. at 942.
In this case the defendants at issue have not been served or otherwise appeared in the action within the appropriate time period. Upon a careful review of the record I am unable to find good cause justifying plaintiff's failure to effectuate timely service and find no sufficient basis to exercise my discretion in favor of extending the governing period for service. Accordingly, since this court has never acquired jurisdiction over them, the complaint should be dismissed as against defendants Tappan, Platt and Gawloski, without prejudice. See, e.g., Michelson v. Merrill Lynch, Pierce, Fenner Smith, Inc., 709 F. Supp. 1279, 1282 (S.D.N.Y. 1989) (citing Mississippi Publishing Corp. v. Murphree, 326 U.S. 438, 444-45, 66 S. Ct. 242, 245-46 (1946)) (court lacks jurisdiction until defendants properly served with summons and complaint).
IV. SUMMARY AND RECOMMENDATION
Plaintiff's complaint in this action challenges the denial of his application for early release to parole supervision on four separate occasions. Plaintiff alleges that those denials were the product of the defendants' failure to follow prescribed procedures, including by neglecting to consider plaintiff's sentencing minutes before making a determination to deny his applications for parole release. Plaintiff's complaint, however, merely alleges a failure on the part of the defendants to comply with state statutory provisions and does not make a sufficient allegation of an arbitrary and capricious denial of parole or that parole was denied based upon an irrational distinction sufficient to bring his claim within the narrow confines of a plausible due process cause of action that may be brought by a New York prison inmate being considered for parole. Similarly, plaintiff's complaint fails to assert a cognizable claim for the denial of equal protection.
In addition to these fundamental shortcomings, plaintiff's claims are also subject to dismissal for a variety of reasons, including the mootness of plaintiff's request for injunctive relief; the Eleventh Amendment, insofar as damages are sought from the defendants in their official capacities; the absolutely immunity enjoyed by defendants engaged in their official decision-making duties; and, to some extent, the applicable statute of limitations. Based upon the foregoing, it is hereby
RECOMMENDED, that defendants' motion to dismiss (Dkt. No. 32) be GRANTED and that plaintiff's complaint be dismissed in its entirety as against all defendants, with prejudice, except as to defendants Patricia Tappan, Irene Platt, and Joseph Gawloski, who should be dismissed from the action on the procedural basis that plaintiff failed to effect timely service, without prejudice.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the clerk of the court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993).
It is further ORDERED that the Clerk of the Court serve a copy of this report and recommendation upon the parties in accordance with this court's local rules.
APPENDIX A
Department of Correctional Services
Inmate Information
Inmate Information Data Definitions are provided for most of the elements listed below. When a detailed definition is available for a specific element, you may click on the element's label to view it.DIN (Department Identification Number) Inmate Name Sex Date of Birth Race/Ethnicity Custody Status Housing Releasing Facility Date Received (Original) Date Received (Current) Admission Type County of Commitment Latest Release Date/Type (Released Inmates Only) Crime Class Aggregate Minimum Sentence Aggregate Maximum Sentence Earliest Release Date Earliest Release Type Parole Hearing Date Parole Hearing Type Parole Eligibility Date Conditional Release Date Maximum Expiration Date Maximum Expiration Date for Parole Supervision Post Release Supervision Maximum Expiration Date Parole Board Discharge Date
Identifying and Location Information As of 02/22/10 92A6212 TRUELUCK, CEDRIC MALE 03/31/1975 BLACK RELEASED QUEENSBORO 07/21/1992 07/21/1992 BRONX 11/10/08 PAROLE — COND REL TO PAROLE Crimes of Conviction If all 4 crime fields contain data, there may be additional crimes not shown here. In this case, the crimes shown here are those with the longest sentences. As of 02/22/10 MANSLAUGHTER 1ST B Sentence Terms and Release Dates Under certain circumstances, an inmate may be released prior to serving his or her minimum term and before the earliest release date shown for the inmate. As of 02/22/10 008 Years, 04 Months, 00 Days 025 Years, 00 Months, 00 Days 12/2008 REAPPEARANCE (OR EARLIER CASE) 07/11/2000 11/11/2008 03/11/2017