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concluding that allegations that "the State failed to assist [plaintiff's] ability to raise a grievance—not that the State obstructed his ability to raise a grievance" failed to state a cognizable First Amendment claim
Summary of this case from Holmes v. City of N.Y.Opinion
No. 08-5991-pr.
December 4, 2009.
Appeal from a October 31, 2008 judgment of the United States District Court for the Eastern District of New York (Raymond J. Dearie, Chief Judge).
UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.
Terrence Boddie, pro se, Rome, NY, for Appellant.
Andrew M. Cuomo, Attorney General of the State of New York, Barbara D. Underwood, Solicitor General, Richard Dearing and Steven C. Wu, Assistant Solicitors General, New York, NY, for Amicus Curiae the State of New York.
SUMMARY ORDER
Plaintiff-appellant Terrence Boddie, pro se, appeals an October 31, 2008 judgment of the United States District Court for the Eastern District of New York entered after the District Court, acting sua sponte under 28 U.S.C. § 1915(e)(2)(B), 1915A, dismissed plaintiffs complaint for failure to state a claim upon which relief can be granted. In his complaint, which asserted claims under 42 U.S.C. § 1983, Boddie alleged (1) that the New York State Parole Board violated the Ex Post Facto Clause of the United States Constitution when it applied the 1997 amendments to the New York State parole revocation rules at Boddie's 2007 parole revocation hearing and (2) that the State's failure to provide him with a grievance procedure to file complaints against parole officers violated his rights under the First and Fourteenth Amendments to the United States Constitution. We assume the parties' familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
Because the District Court dismissed this action before service of process, the defendants listed in the complaint are not parties to this appeal. Nevertheless, in response to our Order of March 30, 2009, the State of New York has filed an amicus curiae brief setting forth the arguments that defendants would have raised had they been parties to this appeal.
We review de novo a district court's dismissal of a complaint under 28 U.S.C. § 1915(e)(2)(B), see McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004), "taking all the allegations in the complaint as true and drawing all inferences in the plaintiffs favor," Jacobs v. Ramirez, 400 F.3d 105, 106 (2d Cir. 2005). While sua sponte dismissal prior to service of process and without leave to amend — like the dismissal here — should be used sparingly, dismissal under 28 U.S.C. § 1915(e)(2)(B) was proper here because we have no doubt that Boddie's complaint fails to state a claim upon which relief can be granted.
First, even assuming, without deciding, that Boddie's ex post facto claim is not barred by Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), and Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997), Boddie's ex post facto claim is meritless. In Barna v. Travis, 239 F.3d 169, 171 (2d Cir. 2001), we held that the Ex Post Facto Clause "does not apply to guidelines that do not create mandatory rules for release but are promulgated simply to guide the parole board in the exercise of its discretion." Boddie asserts that the 1997 amendments to New York's parole revocation rules, 9 N.Y.C.R.R. § 8005.20(c)(1), are mandatory — not discretionary — because they provide that the presiding officer "shall" impose minimum levels of incarceration on violent felony offenders who, like Boddie, are found to have violated the terms of their parole. Nevertheless, the 1997 amendments also allow the presiding officer to order, at his or her discretion, (1) the restoration of the parole violator to supervision with appropriate special conditions or (2) the placement of the parole violator in alternatives to incarceration. See 9 N.Y.C.R.R. § 8005.20(c)(4), (g).
Accordingly, although the 1997 amendments use the word "shall," the 1997 amendments nevertheless allow the presiding officer to exercise wide discretion. As a result, the amendments were "promulgated simply to guide the parole board in the exercise of its discretion," Barna, 239 F.3d at 171, and are therefore not "laws" within the meaning of the Ex Post Facto Clause, see People ex rel Johnson v. Russi, 258 A.D.2d 346, 347, 685 N.Y.S.2d 661 (N.Y.App.Div., 1st Dep't, 1999) (rejecting an ex post facto challenge to § 8005.20(c) because the regulations are merely guide-posts that assist in the exercise of discretion, as confirmed by § 8005.20(c)(4) and (g)). Boddie's ex post facto allegations thus fail to state a claim upon which relief can be granted.
Boddie commenced this action while he was incarcerated, but Boddie was released on parole on November 13, 2009, during the pendency of this appeal. Therefore, Boddie's ex post facto claim is likely moot, providing another reason — in addition to the reasons discussed above — that dismissal of his claim is proper.
Second, Boddie's claim that due process required that the State of New York provide him with a grievance procedure to file complaints against parole officers fails because he cannot demonstrate a protected liberty interest warranting such a procedure. Although, as a general rule, liberty interests may arise "from an expectation or interest created by state laws or policies," Wilkinson v. Austin, 545 U.S. 209, 221, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005), Boddie's claim here is premised on the lack of a statute or regulation providing for a grievance procedure. Thus, there was no state law or policy that gave Boddie an "expectation or interest" in a grievance procedure, and Boddie cannot identify a liberty interest that was infringed. See Palmer v. Richards, 364 F.3d 60, 64 n. 2 (2d Cir. 2004) ("[A] prisoner must first show that the state created a liberty interest, by statute or regulation, before he can show that the interest was infringed."). Indeed, both the Supreme Court and this Court have established that, prior to a parole revocation, due process requires only that a parolee be afforded (1) notice, (2) a fair hearing, and (3) a written revocation decision. See Morrissey v. Brewer, 408 U.S. 471, 484-89, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); United States v. Sanchez, 225 F.3d 172, 175 (2d Cir. 2000). Boddie does not allege that he was denied any of those procedures; he seeks instead an additional procedural protection that was not required by due process. His due process allegations, therefore, fail to state a complaint upon which relief can be granted.
Finally, to the extent that Boddie asserts that the lack of a grievance procedure violated his First Amendment right to petition the government for redress of grievances, Boddie's claim fails because the First Amendment functions only to prohibit the government from obstructing the right to petition. See Smith v. Ark. State Highway Employees, Local 1315, 441 U.S. 463, 465, 99 S.Ct. 1826, 60 L.Ed.2d 360 (1979) ("[T]he First Amendment does not impose any affirmative obligation on the government to listen, to respond or . . . to recognize [a grievance]."); see also Franco v. Kelly, 854 F.2d 584, 589 (2d Cir. 1988) (holding that the right to petition "cannot be obstructed" (internal quotation marks omitted)). Because Boddie alleges, in essence, that the State failed to assist his ability to raise a grievance — not that the State obstructed his ability to raise a grievance — Boddie has failed to state a cognizable First Amendment claim.
We have considered all of Boddie's remaining arguments on appeal and find them to be without merit.
CONCLUSION
For the foregoing reasons, the judgment of the district court is AFFIRMED.