Opinion
9:21-CV-791 (LEK/TWD)
06-01-2022
ERIK WHITE, Plaintiff, v. TERRANCE MIELNICKI, et al., Defendants.
ERIK WHITE Plaintiff, pro se HON. LETITIA JAMES STEVE H. NGUYEN Attorney General for New York State Assistant Attorney General Attorney for Defendants
APPEARANCES OF COUNSEL:
ERIK WHITE
Plaintiff, pro se
HON. LETITIA JAMES STEVE H. NGUYEN
Attorney General for New York State Assistant Attorney General
Attorney for Defendants
AMENDED ORDER AND REPORT-RECOMMENDATION
THERESE WILEY DANCKS, United States Magistrate Judge.
In this action, Erik White claims Terrance Mielnicki, T. Davis, T. Kozak, M. Debraccio, William Fennessy, Jeff McKoy, and Anthony J. Annucci (“Defendants”) violated his Fifth and Fourteenth Amendment rights by compelling him to incriminate himself while participating in New York's Sex Offender Counseling and Treatment Program (“SOCTP”). (See Dkt. No. 12, the “Amended Complaint”.) Defendants now move to dismiss White's Fifth and Fourteenth Amendment claims. (Dkt. No. 24.) For the following reasons, the undersigned recommends granting Defendants' motion and dismissing White's Amended Complaint. (Dkt. No. 12.)
I. BACKGROUND
White initiated this action pro se on July 12, 2021, claiming Defendants, other individuals, and the State of New York violated his rights under 28 U.S.C. § 1983. (Dkt. No. 1; see generally White v. Mielnicki, No. 9:21-CV-0791 (LEK) (TWD), 2021 WL 5410170, at *1 (N.D.N.Y. Nov. 19, 2021).) Among other claims, White asserted Defendants violated his Fifth and Fourteenth Amendment rights while his criminal appeal was pending by compelling him to make incriminating statements as part of his required participation in SOCTP. (Dkt. No. 1.) White claimed Defendants compelled him to give incriminating statements by threatening to remove him from the SOCTP program, rescind his good time credits, and extend his incarceration if he asserted his right against self-incrimination. Id. at 6-7. Conducting an initial review of White's claims under 28 U.S.C. § 1915(e), Senior District Judge Lawrence E. Kahn granted White's motion to proceed in forma pauperis, accepted for filing his Fifth and Fourteenth Amendment claims against Defendants, dismissed all other claims without prejudice, and terminated all remaining defendants. (Dkt. No. 4 at 9-10.)
White subsequently filed the Amended Complaint wherein he requested the assistance of legal counsel. (Dkt. No. 12.) In addition to other claims, White re-asserted his claims that Defendants violated his Fifth and Fourteenth Amendment rights by compelling him to give incriminating statements while his criminal appeal was pending. Id. at 5-13. Conducting another initial review under 28 U.S.C. § 1915(e), Judge Kahn accepted for filing White's Fifth and Fourteenth Amendment claims against Defendants but dismissed all remaining claims and terminated all other parties. (Dkt. No. 15 at 8-9; White, 2021 WL 5410170, at *4-5.) Judge Kahn also denied without prejudice White's request for legal counsel. (Dkt. No. 15 at 8-9.) Defendants now move to dismiss White's Amended Complaint. (Dkt. No. 24-1.)
II. DISCUSSION
Defendants move to dismiss White's compelled self-incrimination and due process claims. (Dkt. No. 24-1.) First, Defendants move to dismiss White's compelled selfincrimination claim on the grounds that he has failed to allege his inculpatory statements were used against him in a criminal proceeding. Id. at 5-7. Defendants argue that even if White's statements were compelled, “it is not until their use in a criminal case that a violation of the SelfIncrimination Clause occurs.” Id. at 5 (quoting Chavez v. Martinez, 538 U.S. 760, 767 (2003) (Thomas, J., announcing the judgment of the Court)). Second, Defendants argue “White's substantive due process claims fail because his good time revocation was neither arbitrary nor irrational.” Id. at 7. Defendants argue “New York's good time scheme is discretionary,” and the decision to revoke White's good time credits was “firmly rooted in statute.” Id. at 7-8. In response, White repeats many of the allegations asserted through his Amended Complaint, contends Defendants had no lawful reason for rescinding his good time credits, and claims many of the statements he made in the SOCTP were used against him in a psychiatric evaluation. (Dkt. No. 29.)
White also asked the Court to reconsider his request for the appointment of counsel under 28 U.S.C. § 1915. (Dkt. No. 29 at 11.) Judge Kahn denied that request. (Dkt. No. 30.)
For the following reasons, the undersigned concludes White has failed to adequately state a claim that he was compelled to offer incriminating testimony against himself in a criminal case. See U.S. Const. amend. V; see also Deshawn E. by Charlotte E. v. Safir, 156 F.3d 340, 346 (2d Cir. 1998). The undersigned further concludes White has failed to adequately state a claim that his due process rights were violated when Defendants rescinded his good time credits. See U.S. Const. amend. XIV.
A. Legal Standard
To survive a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), a “complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Fed.R.Civ.P. 8(a)(2). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.
Unless otherwise indicated, in quoting cases, all alterations, internal quotation marks, emphases, footnotes, and citations are omitted. See, e.g., Sczepanski v. Saul, 946 F.3d 152, 157 n.4 (2d Cir. 2020).
In determining whether a complaint states a claim upon which relief may be granted, “the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.; see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Rather, the “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. The factual allegations must also “give the defendant fair notice of what the claim is and the grounds upon which it rests.” Twombly, 550 U.S. 544, 555; see also Fed.R.Civ.P. 8(a)(2).
“Where a court is unable to infer more than the mere possibility of the alleged misconduct based on the pleaded facts, the pleader has not demonstrated that []he is entitled to relief and the action is subject to dismissal.” Yerdon v. Poitras, No. 1:21-CV-0565 (LEK) (ML), 2022 WL 798271, at *2 (N.D.N.Y. Mar. 16, 2022) (citing Iqbal, 556 U.S. at 678-79.)
B. Compelled Self-Incrimination
“The Fifth Amendment, applicable to the states through the Fourteenth Amendment, provides that a person shall not be ‘compelled in any criminal case to be a witness against himself.'” Deshawn E., 156 F.3d at 346 (quoting U.S. Const. amend. V.). The Supreme Court has explained that this right against compulsory self-incrimination “can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory; and it protects against any disclosures which the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used.” Kastigar v. United States, 406 U.S. 441, 444-45 (1972); see also Lefkowitz v. Cunningham, 431 U.S. 801, 804-805 (1977); Lefkowitz v. Turley, 414 U.S. 70, 77 (1973).
However, in Chavez v. Martinez, four Justices concluded the plaintiffs self-incrimination claim-challenging a Miranda violation under 28 U.S.C. § 1983-failed because the disclosures he was compelled to offer the defendant “were never admitted as testimony against him in a criminal case.” 538 U.S. at 767. Justice Souter concurred that defendant's “questioning alone was [not] a completed violation of the Fifth and Fourteenth Amendments subject to redress by an action for damages under § 1983.” Id. at 777 (Souter, J., concurring). However, the fact that plaintiff's statements were not used against him in a criminal case was “not a sufficient reason to reject Martinez's claim” for Justice Souter. Id. Rather, he rejected the claim on the additional grounds that Martinez had failed to make the “powerful showing . . . necessary to expand protection of the privilege against compelled self-incrimination to the point of the civil liability he asks us to recognize here.” Id. at 778; see generally id. at 791 (Kennedy, J., concurring in part and dissenting in part) (“Our cases and our legal tradition establish that the SelfIncrimination Clause is a substantive constraint on the conduct of the government, not merely an evidentiary rule governing the work of the courts . . . The Clause provides both assurance that a person will not be compelled to testify against himself in a criminal proceeding and a continuing right against government conduct intended to bring about self-incrimination.”).
Several circuit courts have “interpreted Chavez as standing for the proposition that use of a compelled statement in a criminal proceeding is a prerequisite to a § 1983 suit based on a violation of the Self-Incrimination Clause.” Chavez v. Robinson, 12 F.4th 978, 991 (9th Cir. 2021) (collecting cases); see also Higazy v. Templeton, 505 F.3d 161, 171 (2d Cir. 2007) (“The Supreme Court concluded that an officer could not be subjected to civil liability for an alleged violation of the privilege against compelled self-incrimination where the coerced statement is not thereafter used against the person who gave the statement.”); Sornberger v. City of Knoxville, Ill., 434 F.3d 1006, 1024-25 (7th Cir. 2006) (“After Chavez, therefore, violation of the Miranda safeguards cannot provide the basis for § 1983 liability without use of a suspect's statements against him in a criminal case.”).
In the Second Circuit, “a § 1983 action may exist under the Fifth Amendment selfincrimination clause if coercion was applied to . . . obtain inculpatory statements, and the statements thereby obtained were used against the plaintiffs in a criminal proceeding.” Deshawn E., 156 F.3d at 346; see also Sedunova v. City of New York, 652 Fed.Appx. 29, 31 (2d Cir. 2016); Newman v. Hoyt, No. 3:17-CV-808 (TJM) (DEP), 2018 WL 3730170, at *5 (N.D.N.Y. Aug. 6, 2018); Tankleff v. Cnty. of Suffolk, No. 09-CV-1207(JS) (AYS), 2017 WL 2729084, at *16 (E.D.N.Y. June 23, 2017); Dunkelberger v. Dunkelberger, No. 14-CV-3877 (KMK), 2015 WL 5730605, at *18 (S.D.N.Y. Sept. 30, 2015). Accordingly, “[e]ven if it can be shown that a statement was obtained by coercion, there can be no Fifth Amendment violation until that statement is introduced against the defendant in a criminal proceeding.” Deshawn E., 156 F.3d at 346; see also United States v. Allen, 864 F.3d 63, 81 (2d Cir. 2017); see, e.g., Hawthorne by Hawthorne v. Cnty. of Putnam, 492 F.Supp.3d 281, 302 (S.D.N.Y. 2020) (dismissing plaintiff's compelled self-incrimination claim, advanced under 28 U.S.C. § 1983, where he failed to “allege that Defendants ever used, sought to use, or could have used any incriminating statements against him in a criminal proceeding.”); Adams v. Annucci, No. 17-CV-3794 (KMK), 2018 WL 4608216, at *8 (S.D.N.Y. Sept. 25, 2018) (same); McChesney v. Hogan, No. 6:08-CV-1290 (NAM) (DEP), 2010 WL 1027443, at *8 (N.D.N.Y. Feb. 26, 2010), report and recommendation adopted, No. 908-CV-1186 (NAM) (DEP), 2010 WL 1037957 (N.D.N.Y. Mar. 18, 2010) (same); Fifield v. Eaton, 669 F.Supp.2d 294, 298 (W.D.N.Y. 2009) (same); but see Krull v. Oey, 805 Fed.Appx. 73, 75 (2d Cir. 2020) (“A sex-offender treatment program that requires disclosure of criminal conduct without guaranteeing immunity does not violate the Fifth Amendment's Self-Incrimination Clause unless the consequences for non-disclosure compel the prisoner to make self-incriminating statements.”) (emphasis added); Lacy v. Butts, 922 F.3d 371, 378 (7th Cir. 2019) (concluding Indiana's Sex Offender Management and Monitoring program, which had a “system of revoking good time credits and denying the opportunity to earn such credits for convicted sex offenders who refused to confess their crimes,” violated the Fifth Amendment privilege against self-incrimination); Donhauser v. Goord, 314 F.Supp.2d 119, 127 (N.D.N.Y. 2004) (concluding that “requiring plaintiff as part of the SOCP to divulge a history of sexual conduct, including illegal acts for which no criminal charges have been brought, or else face a loss of good time credits, violates his Fifth Amendment privilege against selfincrimination.”).
Here, White failed to advance any allegation suggesting the incriminating statements he gave as a condition of his participation in SOCTP were offered or will be offered against him in a criminal case. (See Dkt. No. 12.) Absent an allegation that his compelled statements were used against him in a criminal case, White has failed to state a claim for a violation of his right to be free from compelled self-incrimination. Sedunova, 652 Fed.Appx. at 31; Deshawn E., 156 F.3d at 346. Moreover, any contention that the statements White made in the SOCTP might be used against him in a future criminal proceeding is not now ripe for adjudication. See Carney v. Hogan, No. 9:08-CV-1251 (DNH) (ATB), 2010 WL 2519121, at *4 (N.D.N.Y. Mar. 30, 2010), report and recommendation adopted, 2010 WL 2519961 (N.D.N.Y. June 15, 2010); McChesney, 2010 WL 1027443, at *8 n.12. The undersigned accordingly recommends that the Court dismiss White's compelled self-incrimination claim. See Adams, 2018 WL 4608216, at *8; McChesney, 2010 WL 1027443, at *8; Fifield, 669 F.Supp.2d at 298.
C. Due Process
The Fourteenth Amendment prohibits States from depriving individuals of “life, liberty, or property, without due process of law.” U.S. Const. amend. XIV. “To present a procedural due process claim, a plaintiff must establish (1) that he possessed a liberty interest and (2) that the defendant(s) deprived him of that interest as a result of insufficient process.” Adams, 2018 WL 4608216, at *6 (quoting Giano v. Selsky, 238 F.3d 223, 225 (2d Cir. 2001). “By contrast, to state a claim for substantive due process a plaintiff must allege that: (1) he had a valid liberty interest and (2) defendants infringed on that right in an arbitrary or irrational manner.” Id.; see also Royal Crown Day Care LLC v. Dep't of Health & Mental Hygiene of City of NY, 746 F.3d 538, 545 (2d Cir. 2014). White's Amended Complaint fails to state a claim for a due process violation because none of his factual allegations give rise to a reasonable inference that Defendants' temporary revocation of his good time credits was done without sufficient process or in an arbitrary or irrational manner. (See generally Dkt. No. 12; see also Iqbal, 556 U.S. at 678.)
White's procedural due process claim fails because White concedes that before his good time credits were revoked, he had a hearing with the Time Allowance Committee (“T.A.C.”) on February 14, 2020. (See Dkt. No. 12 at 6.) White also concedes that he was able to appeal the decision of the T.A.C. several times. See id. at 7-9. According to White, the decision to revoke his good time credits was repeatedly affirmed-first by Deputy Superintendent of Programs T. Kozak, then by Superintendent of Midstate Correctional William Fennessy, and finally by Deputy Commissioner of Programs Jeff KcKoy and Acting Commissioner of the Department of Corrections and Community Supervision Anthony J. Annucci. See id. White advances no allegations about how the T.A.C. hearing-or any subsequent determination-was procedurally deficient. See id. Nor does he advance any factual allegations that indicate how or why these decisions were arbitrary or irrational. See id.; see, e.g., Adams, 2018 WL 4608216, at *6 (“Plaintiff does not allege how this hearing, or any other aspect of the decision to revoke his credits, was procedurally deficient under Wolff [v. McDonnell, 418 U.S. 539 (1974)] or its progeny . . . Nor does Plaintiff allege how the revocation of his Good Time Credits for failure to participate in the SOTP was so arbitrary or irrational that it violated his substantive due process rights.”). White has accordingly failed to plead sufficient factual matter to give rise to a reasonable inference that Defendants' temporary revocation of his good time credits was done without sufficient process or in an arbitrary or irrational manner. (See generally Dkt. No. 12.) The undersigned accordingly recommends dismissing White's due process claims for failure to state a claim. See Adams, 2018 WL 4608216, at *6.
III. CONCLUSION
For the foregoing reasons, the undersigned concludes White has failed to state a claim for a violation of his Fifth or Fourteenth Amendment rights.
ACCORDINGLY, it is hereby
RECOMMENDED that Defendants' motion to dismiss be GRANTED (Dkt. No. 24) and White's Amended Complaint be DISMISSED WITHOUT LEAVE TO AMEND (Dkt. No. 12).
ORDERED that the Clerk provide Plaintiff with a copy of this Order and ReportRecommendation, along with copies of the unpublished decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam); and it is further
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW . Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed.R.Civ.P. 72, 6(a).
If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Order and Report-Recommendation was mailed to you to serve and file objections. Fed.R.Civ.P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. 6(a)(1)(C).