Opinion
Civil Action No. 9:09-CV-1334 (TJM/DEP)
08-25-2011
DONALD GRIFFIN, Plaintiff, v. GEORGE ALEXANDER, Chairman, New York State Division of Parole, Defendant.
APPEARANCES: FOR PLAINTIFF : DONALD GRIFFIN, Pro Se Upstate Correctional Facility FOR DEFENDANT : HON. ERIC T. SCHNEIDERMAN Office of Attorney General State of New York The Capitol Litigation Bureau OF COUNSEL: JUSTIN C. LEVIN, ESQ. Assistant Attorney General
APPEARANCES:
FOR PLAINTIFF:
DONALD GRIFFIN, Pro Se
Upstate Correctional Facility
FOR DEFENDANT:
HON. ERIC T. SCHNEIDERMAN
Office of Attorney General
State of New York
The Capitol
Litigation Bureau
OF COUNSEL:
JUSTIN C. LEVIN, ESQ.
Assistant Attorney General
DAVID E. PEEBLES
U.S. MAGISTRATE JUDGE
REPORT, RECOMMENDATION AND ORDER
Pro se plaintiff Donald Griffin, a New York State prison inmate, has commenced this action pursuant to 42 U.S.C. § 1983, alleging that the defendants have deprived him of his civil rights during the period of his incarceration. In his complaint, plaintiff maintains that his right to freely exercise his religion under the Religious Land Use and Institutionalized Persons Act of 2000 ("RLIUPA"), 42 U.S.C. § 2000cc et seq., and the First Amendment to the United States Constitution was violated when he was denied parole based upon his refusal to sign an acknowledgment accepting responsibility for the conduct that resulted in his criminal conviction, precluding his participation in a sex offender treatment program and, according to plaintiff, resulting in the denial of parole. As relief, plaintiff seeks a judgment declaring that defendant's parole denial constituted a violation of the RLIUPA and the First Amendment as well as a mandatory injunction directing his release on parole and precluding the defendant from using his refusal to sign the treatment and acknowledgment form as a basis to deny parole.
Plaintiff's second amended complaint also requests that the court issue a temporary restraining order and preliminary injunction, presumably for the same relief. With the filing of his original complaint, plaintiff also sought a preliminary injunction. Dkt. No. 4. That request, as well as plaintiff's subsequent application for interim injunctive relief, filed on July 27, 2010, Dkt. No. 16, was denied. See Dkt. Nos. 8 and 33.
Currently pending before the court is defendant's motion to dismiss plaintiff's complaint on the grounds that 1) plaintiff has failed to state a claim upon which relief may be granted, 2) his claims are barred by Heck v. Humphrey,3) plaintiff has failed to allege defendant's personal involvement in the statutory and constitutional violations asserted, and 4) the defendant is entitled to qualified immunity from suit. For the reasons set forth below, I recommend that defendant's motion be granted, and that plaintiff's complaint be dismissed in its entirety. I. BACKGROUND
512 U.S. 477, 114 S. Ct. 2364 (1994).
When addressing defendant's motion I have considered the contents of plaintiff's complaint and deemed the material allegations of that complaint to be true. See Erickson v. Pardus, 551 U.S. 89, 127 S. Ct. 2197, 2200 (2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1965 (2007). I have also considered and incorporated into the background description facts derived from the exhibits attached to the plaintiff's complaint, which may also be properly considered in connection with the dismissal motion. Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47-48 (2d Cir. 1991), cert. denied, 503 U.S. 960, 112 S. Ct. 1561 (1992); see also Samuels v. Air Transp. Local 504, 992 F.2d 12, 15 (2d Cir. 1993).
Plaintiff is a prison inmate entrusted to the care and custody of the New York State Department of Corrections and Community Supervision ("DOCCS") (formerly known as the New York State Department of Correctional Services, or the "DOCS"). See generally Second Amended Complaint (Dkt. No. 13). At times relevant to his claims plaintiff was designated to the Gowanda Correctional Facility ("Gowanda"), located in Gowanda, New York, for the purpose of participating in a Sex Offender Counseling and Treatment Program ("SOCTP"). See id.
According to plaintiff's second amended complaint, which is the operative pleading in this action, on August 11, 2008, while at Gowanda, plaintiff spoke with a corrections counselor regarding a pre-sentence report prepared in connection with Griffin's criminal conviction, advising the corrections counselor that the report falsely accused him of sexually assaulting a particular victim. Second Amended Complaint (Dkt. No. 13) p. 3. Griffin informed the counselor that he could not admit committing the act referenced in the pre-sentence report because he would be lying, in contravention of his religious beliefs as a Jehovah's Witness. Id. During the conversation, plaintiff showed the corrections counselor an excerpt from his daily religious scriptures warning against the sin of lying. Id. Plaintiff claims that his participation in the SOCTP would require that he violate this religious belief because in order to progress to the third level in the program he would have to sign a "Limits of Confidentiality, Partial Waiver of Confidentiality and Acknowledgment Form", which, according to Griffin, would "on its face direct[ him] to demonstrate acceptance of responsibility for conduct [he] and Jehovah God knows [he] is not guilty of." Second Amended Complaint (Dkt. No. 13) p. 3.
Plaintiff further recounts that the corrections counselor agreed with Griffin that he would have to admit to the alleged sex offense in order to complete the SOCTP, and provided plaintiff with a program refusal form, which he signed in the presence of the counselor. Id. In that form, a copy of which is attached to plaintiff's complaint, Griffin indicated that he was refusing to participate in the SOCTP in light of its incompatibility with his religious beliefs. Id. at Exh. A-1. In signing the form plaintiff specifically acknowledged that his refusal could result in a negative decision by the Parole Board, among other things, as well as his awareness that he could change his mind and inform program staff if he wished to participate in the treatment program. See id. The specific reason stated for his refusal was listed as "[d]ue to current religion beliefs I/M Griffin unable to participate (ie. 'to not violate his conscientious [sic] by lying')." Id.
Griffin appeared before representatives of the New York State Parole Board on October 28, 2008 and was questioned regarding his refusal to participate in the SOCTP. Second Amended Complaint (Dkt. No. 13) p. 4. He informed the Board that he could not successfully complete the program because it would require him to lie, in violation of his religious beliefs as a Jehovah's Witness. Id. At the conclusion of the hearing, the Board issued a decision denying plaintiff release to parole supervision based, in part, on his refusal to participate in the SOCTP. Id.; see also Complaint (Dkt. No. 1) Exh. 1.
While plaintiff's second amended complaint is the operative pleading and the object of defendant's motion, superceding all earlier filed complaints, see Harris v. City of New York, 186 F.3d 243,249 (2d Cir. 1999), plaintiff's initial and first amended complaints are properly considered by the court when evaluating the plausibility of his claims. Hale v. Rao, No. 9:08-CV-1612, 2009 WL 3698420, at *3 n.8 (N.D.N.Y. Nov. 3, 2009) (Hurd, D.J. and Lowe, M.J.) ("[I]n cases where a pro se plaintiff is faced with a motion to dismiss, it is appropriate for the court to consider materials outside the complaint to the extent they are consistent with the allegations in the complaint.)
Plaintiff timely appealed the parole denial decision; his appeal, however, was effectively denied by the failure of the Parole Board appeals unit to respond. Second Amended Complaint (Dkt. No. 13) p. 4. As a result, on June 30, 2009, plaintiff filed a petition against the defendant in this action with the New York State Supreme Court pursuant to Article 78 of the New York Civil Practice Law and Rules, asserting that the decision of the Parole Board should be annulled on essentially the same grounds he now advances in this lawsuit. Second Amended Complaint (Dkt. No. 13) p. 4; see also Complaint (Dkt. No. 1) Exh. 2. In response to plaintiff's Article 78 petition, the defendant proposed and secured the issuance of an order, over plaintiff's opposition, granting Griffin a de novo hearing on the grounds that the Parole Board had considered erroneous information in denying his release. Complaint (Dkt. No. 1) Exh. 4. Specifically, in consenting to a new parole hearing, the Board admitted that it had relied, in part, on the erroneous information to the effect that Griffin had been found guilty of a serious disciplinary rule violation. Id. It appears that plaintiff was again denied parole on rehearing.
Plaintiff opposed the proposed order because he specifically sought a determination that the respondent infringed upon his First Amendment rights. See Complaint (Dkt. No. 1) Exh. 5. In light of the respondent's consent in that proceeding to "the maximum relief which the Court could grant . . . a de novo parole interview[,]" the state court found plaintiff's opposition to the proposed order to be without merit. See id. at Exh. 6. The state court's determination is consistent with the principle that "[a] prisoner who successfully challenges a denial of parole is entitled to a rehearing, not release." See Jones v. Giambruno, No.05-CV-0008, 2009 WL 1362847, at *11 (W.D.N.Y. May 14, 1999) (citing Wilkinson v. Dotson, 544 U.S. 74, 82, 125 S. Ct. 1242 (2005)).
Attached to plaintiff's opposition to defendant's motion to dismiss is a document identified as "Inmate Status Report for Parole Board Appearance." Although it is not completely clear, it appears that plaintiff's de novo hearing was conducted in December 2009 and that he again was denied release, and additionally that he was scheduled to reappear on November 2010. See Dkt. No. 29. Information publicly available on the DOCCS inmate look-up, http://nysdocslookup.docs.state.ny.us/, (screen shot attached) reveals that plaintiff's last reappearance was, in fact, in November 2010, and that his next scheduled parole hearing is in November 2012.
II. PROCEDURAL HISTORY
Plaintiff filed his complaint in the action, along with an application to proceed in forma pauperis, and a motion for preliminary injunction, on November 30, 2009. Dkt. Nos. 1, 2, and 4. In his complaint Griffin names a single defendant, George Alexander, the former Chairman of the New York State Division of Parole, and claims interference with his right of free religious exercise under both the First Amendment and the RLIUPA in association with the October 28, 2009 parole denial.
As of June 8, 2009, Andrea W. Evans assumed the position of Chair of the New York State Division of Parole. See https://www.parole.state.ny.us/welcome.html (site last visited Aug. 25, 2004). Because plaintiff's claims against the defendant are limited to official capacity claims, seeking only declaratory and injunctive relief, I will direct the clerk to substitute Ms. Evans as the named defendant in this action. See Zuk v. Gonzalez, No. 5:07-cv-732, 2007 WL 2163186, at *2 (N.D.N.Y. July 26, 2007) (Scullin, S.J.) (adding a proper defendant, sua sponte, in the interest of judicial economy and in light of the plaintiff's pro se status); see also Fed. R. Civ. P. 21 ("Parties may be dropped or added by order of the court on motion of any party or on its own initiative at any stage of the action and on such terms as are just"); Dockery v. Tucker, No. 97-cv-3584, 2006 WL 5893295, at *7 (E.D.N.Y. Sept. 6, 2006) (adding sua sponte the United States as a defendant in a FTCA claim brought by a pro se plaintiff); Ciancio v. Gorski, No. 98-cv-714E(SC), 1999 WL 222603, at *1 (W.D.N.Y. Apr. 14, 1999) (substituting the proper defendant sua sponte "in the interest of eliminating undue complication without affecting the substantial rights of the parties"). Copies of all unreported decisions cited in this document have been appended for the convenience of the pro se plaintiff.
On December 14, 2009, before the court had completed its initial review of those submissions, plaintiff filed an amended complaint. Dkt. No. 5. By decision and order dated February 16, 2010, the court concluded that plaintiff's amended complaint failed to state a claim upon which relief may be granted. Dkt. No. 8. In its decision the court noted, inter alia, that plaintiff's request for release from incarceration is not a form of relief available in this action, that he was afforded a de novo parole hearing after it was discovered that information regarding plaintiff's disciplinary history relied upon by the Parole Board was incorrect, and that plaintiff's claims regarding the SOCTP were not cognizable against the only defendant named in this action, Chairman Alexander. Id. at 2-7.
Plaintiff appealed the court's dismissal of the action to the United States Court of Appeals for the Second Circuit. Dkt. No. 11. By decision issued by the court on June 7, 2010, the dismissal was vacated, and the matter was remanded to this court for further proceedings. See Dkt. No. 16. In its decision the Second Circuit found plaintiff's "pro se complaint . . . insufficiently particular to allow [it] to ascertain whether the underlying claim is frivolous", observing also that this court "analyzed [plaintiff's] First Amendment claim as a due process claim, and without adequately considering whether personal involvement is a prerequisite to liability under [RLIUPA]." Id. Accordingly, the court directed that the plaintiff be afforded an opportunity to file another amended complaint specifying both the features of the SOCTP program that would require him to violate the tenets of his religion and the religious beliefs tenets that would be violated. See id.
Following that remand, plaintiff submitted the second amended complaint, which was accepted by the court for filing. See Dkt. Nos. 13 and 17. In response to plaintiff's most recent complaint, defendant has moved seeking its dismissal pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Dkt. No. 27. Plaintiff has since responded in opposition to defendant's motion, Dkt. No. 29, 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).
Defendant also seeks, and plaintiff does not oppose, a stay of discovery pending resolution of this motion.
III. DISCUSSION
A. Dismissal Motion Standard
A motion to dismiss a complaint, brought pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, 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 Atl. 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).
In deciding a Rule 12(b)(6) dismissal motion, the court must accept the material facts alleged in the complaint as true and draw all inferences in favor of the non-moving party. Cooper v. Pate, 378 U.S. 546, 546, 84 S. Ct. 1723, 1734 (1964); Miller v. Wolpoff & Abramson, LLP, 321 F.3d 292, 300 (2d Cir. 2003), cert. denied, 540 U.S. 823, 124 S. Ct. 153 (2003); Burke v. Gregory, 356 F. Supp. 2d 179, 182 (N.D.N.Y. 2005) (Kahn, J.). The burden undertaken by a party requesting dismissal of a complaint under Rule 12(b)(6) is substantial; the question presented by such a motion is not whether the plaintiff is likely ultimately to prevail, "'but whether the claimant is entitled to offer evidence to support the claims.'" Log On America, Inc. v. Promethean Asset Mgmt. L.L.C., 223 F. Supp. 2d 435, 441 (S.D.N.Y. 2001) (quoting Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir. 1995)) (citations and quotations omitted).
B. Merits of Defendant's Motion
In his motion defendant challenges the sufficiency of plaintiff's religious exercise claims under the First Amendment and the RLUIPA on a variety of grounds, arguing that plaintiff's claims must fail because 1) the complaint contests the October 28, 2008 parole decision, which is no longer controlling; 2) they are barred by the principles of res judicata based upon his state court conviction for first-degree sexual abuse; 3) the claims are precluded under Heck v. Humphrey; and, 4) plaintiff's sole federal remedy to challenge the fact or duration of his imprisonment is by way of a habeas corpus proceeding.
1. Mootness
Defendant is correct in his assertion that the only action challenged in plaintiff's complaint is the October 28, 2008 parole denial which, plaintiff claims, was impermissibly premised in part on his religion-based refusal to participate in the SOCTP. By plaintiff's own admission, however, that determination was vacated by the New York Supreme Court, and it appears that plaintiff subsequently was afforded a de novo hearing which similarly did not result in his release on parole. Yet, plaintiff's complaint makes no mention of and does not challenge that later determination, or any other subsequent determination that may have since occurred. Though not characterized by the defendant as such, the essence of his argument seems to be that the claims alleged in plaintiff's complaint are moot.
Article III of the United States Constitution confers upon federal courts the authority to decide actual cases and controversies. Catanzano v. Wing, 277 F.3d 99, 107 (2d Cir. 2001); see also Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477, 110 S. Ct. 1249, 1253 (1990); Powell v. McCormack, 395 U.S. 486, 496, 89 S. Ct. 1944, 1950-51 (1969). Consequently, a federal court presented with an action in which no live controversy exists may not exert jurisdiction, but instead must order dismissal of the plaintiff's claims as moot. Catanzano, 277 F.3d at 107. Addressing the concept of mootness, the Second Circuit has noted that
[t]he hallmark of a moot case or controversy is that the relief sought can no longer be given or is no longer needed.Martin-Trigona v. Shiff, 702 F.2d 380, 386 (2d Cir.1983).
Under New York Law, a challenge to a parole board hearing must be dismissed if the petitioner is reconsidered for parole. Graziano v. Lape, No. 9:04-CV-84, 2008 WL 2704361, at *4 (N.D.N.Y. Jul. 02, 2008) (Kahn, J.) (citations omitted).
While application of the mootness doctrine is constitutionally mandated, a court may relieve a party from its application when presented with a matter that is "capable of repetition, yet evading review." Olmstead v. Zimring, 527 U.S. 581, 594 n.6, 119 S. Ct. 2176, 2184 n.6 (1999). An otherwise moot question falls under the "capable of repetition" doctrine when 1) the challenged condition was too brief in duration to permit litigation prior to its cessation or expiration, and 2) there is a reasonable expectation that the complaining party will be subjected to the same action again. Weinstein v. Bradford, 423 U.S. 147, 149, 96 S. Ct. 347, 349 (1975). "The central question [presented in determining mootness vel non] . . . is constant - whether decision of a once living dispute continues to be justified by a sufficient prospect that the decision will have an impact on the parties." 13B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure § 3533 (3d ed. 2008).
Since plaintiff seeks a declaration that the October 2008 parole determination violated his rights and an injunction precluding defendant from denying plaintiff parole based upon his religious beliefs, and that determination has since been vacated by the state court, his claims in this action appear to be moot. Additionally, plaintiff has not suggested that the time within which to challenge any subsequent denials on that basis was too short, or, more importantly, that any subsequent parole denial was premised upon his failure to participate in the SOCTP. For these reasons, the claims set forth in plaintiff's complaint are subject to dismissal as moot.
2. Res Judicata
In his motion defendant also argues that plaintiff's claims are precluded by res judicata based upon Griffin's criminal conviction which, defendant maintains, establishes his guilt of sexual misconduct and effectively precludes him from arguing that participation in the SOCTP would require him to lie.
The preclusive effect of a judgment is defined by claim preclusion and issue preclusion, which are collectively referred to as 'res judicata.'" Taylor v. Sturgell, 553 U.S. 880, 892, 128 S.t. 2161, 2171(2008). While under claim preclusion a final judgment forecloses successive litigation of the very same claim regardless if relitigation of the claim raises the same issues as in the prior suit, issue preclusion bars successive litigation of an issue of fact or law actually litigated and resolved by a court, even if the issue recurs in a different context in a new claim. Taylor, 553 U.S. at 892, 128 S. Ct. at 2171(citing New Hampshire v. Maine, 532 U.S. 742, 748-49, 121 S. Ct. 1808, 1814 (2001)). Both doctrines protect against "the expense and vexation attending multiple lawsuits, conserve judicial resources, and foster reliance on judicial action by minimizing the possibility of inconsistent decisions" while precluding parties from bringing claims they have already had a full and fair opportunity to litigate. Montana v. United States, 440 U.S. 147, 153-54, 99 S. Ct. 970, 973-74 (1979). Succinctly stated, "[t]he doctrine of res judicata . . . was established as a means to promote legal economy and certainty." Expert Electric, inc. v. Levine, 554 F.2d 1227, 1232 (2d Cir.), cert. denied, 434 U.S. 903, 98 S. Ct. 3000 (1977).
Both the Full Faith and Credit Clause of the United States Constitution, see U.S. Const. art. IV, § 1, and the corresponding Full Faith and Credit statute, 28 U.S.C. § 1738, require that a federal court accord a state court judgment the same preclusive effect which it would merit under the law of the state from which it originated. See Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81, 104 S. Ct. 892, 896 (1984); Kremer v. Chem. Constr. Corp., 456 U.S. 461, 466, 102 S. Ct. 1883, 1889-90 (1982); Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). This principle applies fully to claims brought pursuant to 42 U.S.C. § 1983. Migra, 465 U.S. at 84-85, 104 S. Ct. at 897-98; Allen v. McCurry, 449 U.S. 90, 103-04, 101 S. Ct. 411, 419-20 (1980); Giakoumelos v. Coughlin, 88 F.3d 56, 59 (2d Cir. 1996).
The interplay between plaintiff's religious freedom claims and defendant's res judicata argument raises intriguing issues. The allegations set forth in plaintiff's second amended complaint and attachments do little more than present a purely speculative claim on his part that his participation in the SOCTP would require him to lie concerning his role in criminal conduct. It is true that literature associated with the program suggests that a participant must be prepared to fully discuss the particulars of the criminal conduct underlying his or her conviction, noting the following:
I understand that the primary purpose of the program is reduce the likelihood of re-offending by assisting me to control my chain of behaviors that lead to sexual offending. I also understand that I am not required to admit the commission of a particular crime, whether it resulted in the present commitment or not.Second Amended Complaint (Dkt. No. 13) Exh. C-1. Plaintiff never tested this provision, however, in order to definitively ascertain whether it would require him to lie, in violation of his religious rights, instead blanketly refusing to participate in the program after being advised that the refusal could have a negative effect on any parole proceedings. id. at Exh. A-1. Of course, at this early procedural juncture, I must only determine whether a plausible religious exercise claim has been stated under the First Amendment and/or RLUIPA, and for purposes of defendant's motion, I will now make this determination.
Rather, for successful program participation, I may discuss my
behavior in general terms without providing the full names of victims, without disclosing the exact dates, times, and places of various sexual offending behavior, and without admitting to any specific crime or the violation of any specific section of the Penal Law. Nonetheless, I must openly and honestly discuss the behavior that resulted in my incarceration and referral to the program, demonstrate acceptance of responsibility for the conduct that resulted in my criminal conviction and demonstrate an understanding of the sexual offending behavior and cycle of abuse.
Turning to Alexander's defense, I note initially that the record now before the court, limited as it is to the four corners of plaintiff's complaint as well as any attachments, contains only minimal information concerning Griffin's conviction. It is true that in plaintiff's submission in opposition to defendants' motion he attaches a document which suggests that he was convicted and sentenced on January 9, 1987 for first degree sexual abuse. See Plaintiff's Opposition (Dkt. No. 29) Exh. 1. Nothing more is known concerning that conviction, however. At this early procedural juncture I am unable to conclude with certainty that if the plaintiff was convicted, as asserted by defendant, the conviction would necessarily preclude participation in the SOCTP would require him to lie in violation of his religious beliefs. Consequently, at this early stage, I recommend rejection of defendant's res judicata argument.
3. Heck v. Humphrey
Defendant next contends that plaintiff's claim under section 1983 is precluded by the Supreme Court's decision in Heck. In that case the Supreme Court adopted a "favorable termination rule", to the effect that an action brought under section 1983 based upon an alleged constitutional violation arising of or relating to a conviction cannot be maintained where a favorable outcome would necessarily undermine the validity of that conviction unless the conviction is first overturned through customary channels. Heck, 512 U.S. at 478-79, 114 S. Ct. 2364. At issue in that case was an action for damages under section 1983 against a prosecutor and a criminal investigator alleging that the plaintiff's conviction was unconstitutional. The Court concluded that because a favorable finding in the section 1983 action would necessarily undermine the validity of the conviction, the plaintiff, though seeking only monetary damages, in essence was attacking the fact or length of confinement, a challenge which under Preiser v. Rodriguez, 411 U.S. 475, 93 S. Ct. 1827 (1973), may only be maintained through petition for habeas relief, and not under section 1983. Id. at 481-82, 114 S. Ct. 2364; see also Peralta v. Vasquez, 467 F.3d 98, 102 (2d Cir. 2006).
Plaintiff's claims in this case at least indirectly implicate the rule in Heck. At the heart of plaintiff's religious freedom claim is his contention that he would be forced to lie when participating in the SOTCP by admitting criminal conduct in which he did not engage. The conduct about which he would be asked, presumably, is the conduct which formed the basis for his criminal conviction. Thus, although this does not present the typical situation addressed in such cases as Heck and the Second Circuit's later decision in Peralta, it nonetheless involves an indirect challenge to a criminal conviction which has not been reversed or otherwise set aside and therefore presents the type of claim which is precluded by the rule in Heck.
4. Appropriate Use of Section 1983 Claim to Effectuate the Relief Sought
As was previously noted, plaintiff's complaint, though lodged under section 1983, does not seek monetary damages. Instead, the relief requested includes an order directing that Griffin be released to parole supervision. See Second Amended Complaint (Dkt. No. 13) at p. 7. When a prison inmate seeks to challenge the fact or duration of his imprisonment, the "sole federal remedy is a writ of habeas corpus." Preiser, 411 U.S. at 500, 93 S.Ct. at 1841; see also Channer v. Mitchell, 43 F.3d 786 (2d Cir. 1994). To the extent that plaintiff seeks to challenge the rejection of his release to parole, it should have been brought as a habeas petition. Duemmel v. Fischer, No. 9:08-CV-1006, 2009 WL 174364, at * 2 (N.D.N.Y. Jan. 23, 2009) (McAvoy, S.J.), aff'd, 368 Fed. App'x 180 (2d Cir. 2010).
One potential means for rectifying this fatal procedural defect would be to simply convert plaintiff's complaint to a habeas petition under 28 U.S.C. § 2254. Since the filing of habeas petition, however, has certain potentially adverse consequences, a court should not unilaterally convert a plenary complaint to a section 2254 petition without first offering the petitioner the opportunity to withdraw the petition rather than have it so recharacterized.
In Adams v. United States, 155 F.3d 582 (2d Cir. 1998), the Second Circuit recognized that because the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996), places stringent limits on a prisoner's ability to bring a second or successive habeas petitions, the sua sponte conversion of pleadings to habeas petition might be "extraordinarily harmful to a prisoner's rights." Adams, 155 F.3d at 583-84 (addressing a motion for relief under 28 U.S.C. § U.S.C. § 2255. The Second Circuit went on to hold in Adams that
district courts should not recharacterize a motion purportedly made under some other rule as a motion made under § 2255 unless (a) the movant, with knowledge of the potential adverse consequences of such recharacterization, agrees to have the motion so recharacterized, or (b) the court finds that, notwithstanding its designation, the motion should be considered as made under § 2255 because of the nature of the relief sought, and offers the movant the opportunity to withdraw the motion rather than have it so recharacterized.Id. at 584. The holding in Adams was later extended to recharacterization of § 2254 petitions. See Cook v. N. Y. Div. of Parole, 321 F.3d 274, 282 (2d Cir. 2003) (recognizing that the problem arising from conversion of a pleading to a section 2254 petition is the same as encountered when converting a pleading to a section 2255 motion). Thus, in the event defendant's motion to dismiss on other grounds is denied, the plaintiff should be afforded the opportunity to withdraw this action before it is converted to a section 2254 petition.
Although New York law is clear that once a prisoner is reconsidered for parole, any legal challenge to an earlier denial is rendered moot, "the case law is not settled on whether a subsequent parole hearing renders moot a federal habeas petition to review an earlier parole denial." Graziano, 2008 WL 2704361, at *5 (citations omitted). Plaintiff is advised, however, that "to the extent that a New York State inmate has any liberty interest in parole that is protected by the Due Process Clause of the Fourteenth Amendment, that interest extends only to not being denied a parole release 'arbitrarily' or 'capriciously,' for example, based on an inappropriate consideration of a protected classification (such as race, religion, gender, economic status, etc.) or an 'irrational distinction.' " Standley v. Dennison, No. 05 Civ. 1033, 2007 WL 2406909, at *9 (N.D.N.Y. Aug. 21, 2007) (Sharpe, J. and Lowe, M.J.).
5. Sufficiency of Plaintiff's Amendment and RLUIPA Claims
Defendant's motion does not directly address the merits of plaintiff's First Amendment and RLUIPA claims. Nonetheless, it is doubtful that under the circumstances now presented plaintiff could assert a plausible claim under either of those provisions, even assuming all of the other above-noted deficiencies could be cured.
6. First Amendment
The First Amendment to the United States Constitution guarantees the right to free exercise of religion. U.S. CONST. AMEND. I; Cutter v. Wilkinson, 544 U.S. 709, 719, 125 S. Ct. 2113, 2020 (2005). As is true with regard to the First Amendment generally, the free exercise clause applies to prison inmates, subject to appropriate limiting factors. Ford v. McGinnis, 352 F.3d 582, 588 (2d Cir. 2003) ("Prisoners have long been understood to retain some measure of the constitutional protection afforded by the First Amendment's Free Exercise Clause.") (citing Pell v. Procunier, 417 U.S. 817, 822, 94 S. Ct. 2800, 2804 (1974)). Thus, for example, under accepted free exercise jurisprudence inmates are guaranteed the right to participate in congregate religious services under most circumstances. See, e.g., Salahuddin v. Coughlin, 993 F.2d 306, 308 (2d Cir. 1993) (citing cases).
That amendment provides, in pertinent part, that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." U.S. CONST. AMEND. I.
The right of prison inmates to exercise their religious beliefs, however, is not absolute or unbridled, but instead is subject to valid penological concerns, including those relating to institutional security. O'Lone v. Estate of Shabazz, 482 U.S. 342, 348, 107 S. Ct. 2400, 2404 (1987); Salahuddin, 993 F.2d at 308. A determination of whether the refusal to permit attendance at a religious service, for example, has abridged an inmate's constitutional rights hinges upon the balancing of the inmate's First Amendment free exercise right against institutional needs of officials tasked with the increasingly daunting task of operating prison facilities; that determination is "one of reasonableness, taking into account whether the particular [act] affecting [the] constitutional right . . . is 'reasonably related to legitimate penological interests.'" Benjamin v. Coughlin, 905 F.2d 571, 574 (2d Cir.) (quoting Turner v. Safley, 482 U.S. 78, 89, 107 S. Ct. 2254, 2261 (1987)), cert. denied, 498 U.S. 951, 111 S. Ct. 372 (1990).
Courts must analyze free exercise claims by evaluating "1) whether the practice asserted is religious in the person's scheme of beliefs, and whether the belief is sincerely held; 2) whether the challenged practice of the prison officials infringes upon the religious belief; and 3) whether the challenged practice of the prison officials furthers some legitimate penological objective." Farid v. Smith, 850 F.2d 917, 926 (2d Cir.1988) (citations omitted).
"In Salahuddin, the Second Circuit left open the question of whether a plaintiff bringing a free exercise claim under the First Amendment must make a threshold showing that his sincerely held religious beliefs have been 'substantially burdened.'" Pilgrim v. Artus, No. 9:07-CV-1001, 2010 WL 3724883, at * 13 n.10 (N.D.N.Y. 2010) (Treece, M.J.) (citing Salahuddin, 467 F.3d at 274-75 n. 5 and Pugh v. Goord, 571 F. Supp. 2d 477, 497 n. 10 (S.D.N.Y.2008) (noting that the Second Circuit has twice declined to answer the question)), report and recommendation adopted, 2010 WL 3724881 (N.D.N.Y. Sep 17, 2010) (Sharpe, J.).
Here, liberally construing plaintiff's complaint, the court must infer from the pleadings that lying is a practice that is prohibited by the religious tenets of Jehovah's witnesses and that plaintiff's beliefs in this religion are sincerely held. As to whether the requirement that plaintiff take responsibility for his actions substantially burdens his religious beliefs, on the face of his pleading it seems that Griffin cannot show that it does. Plaintiff admits to committing one sexual offense, stating that he has "long since admitted his guilt for the robberies. . . and [one of] the sexual abuse charges against him", but denies the other. He purportedly objects to signing the Limits of Confidentiality, Partial Waiver of Confidentiality and Acknowledgment form and to participating in the SOCTP because it would require that he admit guilt for an offense that he did not commit. The form at issue provides, however,
I understand that the primary purpose of the program is to reduce the likelihood of re-offending by assisting me to control my chain of behaviors that lead to sexual offending. I also understand that I am not required to admit the commission of a particular crime, whether it resulted in the present commitment or not.Second Amended Complaint (Dkt. No. 13) Exh. C-1 (emphasis added). Given that there appears to be no requirement that plaintiff admit the specific conduct that he claims not to have engaged in, it follows that plaintiff would not necessarily be required to "lie" and violate his religious beliefs. The burden that this acknowledgment or participation in the SOCTP would impose upon plaintiff's religious beliefs therefore is not apparent from his complaint, and it seems clear that plaintiff cannot sufficiently plead the existence of such a burden.
Rather, for successful program participation, I may discuss my behavior in general terms without providing the full names of victims, without disclosing exact dates, times, and places of
various sexual offending behavior, and without admitting to any specific crime or violation of any specific section of the Penal Law. Nonetheless, I must openly and honestly discuss the behavior that resulted in my incarceration and referral to the program, demonstrate acceptance of responsibility for the conduct that resulted in my criminal conviction and demonstrate an understanding of my sexual behavior and cycle of abuse.
In light of the foregoing, even assuming that plaintiff's complaint with the october 2008 parole board determination were not moot, plaintiff's pleading demonstrates that he was not required to admit guilt with regard to any specific act. Accordingly, he has failed to allege that the SOCTP has imposed a burden on his sincerely religious beliefs and has failed to state a plausible First Amendment claim.
Courts often look to the following four factors in determining the reasonableness of a prison regulation; including 1) whether there is a valid and rational relationship between the prison regulation and the legitimate government interests asserted; 2) whether the inmates have alternative means to exercise the right; 3) the impact that accommodation of the right will have on the prison system and resources generally; and 4) whether ready alternatives exist which accommodate the right and satisfy the governmental interest. Turner v. Safley, 482 U.S. at 89-91 (citations omitted).
The Supreme Court has recognized that, "[t]here is clearly a compelling governmental interest in the treatment of sex offenders before they rejoin the general public so that the incidence of recidivism can be reduced for the benefit of the public as well as the offenders." Schnitzler v. Reisch, No. CIV 06-4064, 2008 WL 895843, at *1 (D. S.D. Mar. 31, 2008) (citing McKune v. Lile, 536 U.S. 24, 33, 122 S. Ct. 2017, 2024 (2002)); see also McKune, 536 U.S. at 33, 122 S. Ct. at 2024 ("When convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault. See id., at 27; U.S. Dept. of Justice, Bureau of Justice Statistics, Recidivism of Prisoners Released in 1983, p. 6 (1997). States thus have a vital interest in rehabilitating convicted sex offenders."). Even more, at least one other district court in this circuit has concluded that there is a rational connection between the SOCTP requirement that prisoners take responsibility for the their crimes and the DOCCS' legitimate penological interest in rehabilitating sex offenders and also that there is no alternative method of accommodating a prisoner's complaint that the admission of guilt would violate a religious belief that prohibits lying. Bush v. Goord, No. 03-CV-7595, 2009 WL 790358, at *4-6 (W.D.N.Y. Mar. 25, 2009) (citing Donhauser v. Goord, 314 F. Supp. 2d 119, 135 (N.D.N.Y. 2004); Searcy v. Simmons, 299 F.3d 1220, 1228 (10th Cir. 2002); and Schnitzler, 518 F. Supp. 2d at 1118).
7. RLUIPA
Turning to the second claim included in plaintiff's complaint, the RLUIPA provides, in pertinent part, that
[n]o government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution . . . . even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of a burden on that person - 1) is in furtherance of42 U.S.C. § 2000cc-1(a). The familiar principles which inform the analysis of plaintiff's free exercise claim are similar to those applicable to the potential RLUIPA cause of action, although the two claims are analyzed under somewhat different frameworks. See Salahuddin, 467 F.3d at 274. Like the First Amendment's free exercise clause, the RLUIPA prohibits governmental entities subject to its reach from imposing a substantial burden on religion even where it stems from a generally applicable law, practice, or policy.
a compelling governmental interest; and 2) is the least restrictive means of furthering that compelling governmental interest.
It should also be noted that although there is not uniformity on this issue, the weight of authority appears to be that under the RLUIPA does not allow for recovery of damages against defendants, either individually or in their official capacities. Singh v. Goord, No. 05 Civ. 9680 (SCR)(LMS), 2010 WL 1875653, at * 6 (S.D.N.Y. March 9, 2010), report and recommendation adopted, 2010 WL 1903997 (May 10, 2010); Sweeper v. Taylor, No. 906-CV-379, 2009 WL 815911, at *9 (N.D.N.Y. Mar. 27, 2009) (Mordue, C.J.), aff'd, 383 Fed. App'x 81 (2d Cir. 2010); Pugh, 571 F. Supp. 2d at 503; but see Hankins v. New York State Dep't of Corr., No. 07 CV 408, 2008 WL 2019655, at *6 (N.D.N.Y. Mar. 10, 2008) (Lowe, M.J.) (concluding in dicta, that by accepting federal funds New York effectively has waived its sovereign immunity thereby allowing for damages against defendants in their official capacities). Since plaintiff makes clear that he does not seek damages in this case, further discussion of this issue is not necessary in this case.
To establish a violation of the RLUIPA a plaintiff must prove that prison officials, through their actions, have substantially burdened his or her religious exercise through actions not found to promote a compelling governmental interest advanced through the least restrictive means. Pilgrim v. Artus, 2010 WL 3724883, at *10. The RLUIPA places a higher burden on the defendants than does the First Amendment, which requires only a burden that is "reasonably related to legitimate penological interests". Id.
Despite these differences, for the same reasons that I have indicated that plaintiff's complaint, even if not moot, does not state a cognizable First Amendment claim, I conclude that plaintiff's complaint fails to state RILUPA claim that it plausible on its face.
C. Personal Involvement
In support of dismissal defendant further contends that he cannot be held liable for the misconduct alleged because he was not personally involved in the determination to deny plaintiff parole.
Personal involvement of defendants in alleged constitutional deprivations generally is a prerequisite to an award of damages under section 1983. Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (citing Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991) and McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977), cert. denied, 434 U.S. 1087, 98 S. Ct. 1282 (1978)). However, district courts in this circuit have not required personal involvement where a plaintiff seeks only declaratory or injunctive relief against a defendant named solely in an official capacity. Jones-Soderman v. Executive Sec'y of the State Bd., No. 08 CV 4716(SJF)(LB), 2010 WL 3800908, at *7 (E.D.N.Y. May 21, 2010) (citing Hall v. Marshall, 479 F. Supp. 2d 304, 318 (E.D.N.Y.2007)), report and recommendation adopted, 2010 WL 3780989 (E.D.N.Y. Sep 20, 2010); Marinaccio v. Boardman, No. 1:02 CV 831, 2005 WL 928631, at *9 (N.D.N.Y Apr. 19, 2005) (collecting cases) (McCurn, S.J.). "[A]ctions involving claims for prospective declaratory or injunctive relief are permissible provided the official against whom the action is brought has a direct connection to, or responsibility for, the alleged illegal action." Davidson v. Scully, 148 F. Supp. 2d 249, 254 (S.D.N.Y. 2001) (quotation and citations omitted). The standard espoused by defendant in this action is therefore inapplicable given plaintiff's clear intention to sue the defendant only in his official capacity as Parole Board Chairman.
At the time in question, defendant Alexander was the Chairman of the Parole Board with overall responsibility for overseeing for that state body. Defendant argues that a DOCCS policy is at issue in this case, and not a policy of the Division of Parole. To be sure, plaintiff complains of the SOCTP requirements, which apparently fall within the purview of the DOCCS. The heart of plaintiff's claim, however, is that his refusal to participate in SOCTP based upon his religion should not have been considered by the Parole Board in rendering its determination. Liberally construing plaintiff's complaint, that decision clearly was made by the Parole Board, which was within Alexander's purview, and it is plausible that plaintiff's claim implicates a policy of the Division of Parole. As such, if a statutory or constitutional violation were found based upon an infringement of plaintiff's religious rights, it seems that defendant would be in a position to implement any prospective relief that may be granted plaintiff in this action. See Pilgrim, 2010 WL 3724883, at * 14. For these reasons, I recommend denial of defendant's motion insofar as it is premised upon defendants' lack of personal involvement.
D. Qualified Immunity
In the final point of his motion, defendant seeks a finding that he is shielded from suit based upon qualified immunity. This argument, however, is misguided as it apparently misperceives the nature of plaintiff's claims and the relief sought.
Qualified immunity shields government officials performing discretionary functions from liability for damages "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982) (citations omitted). In general, governmental officials sued for damages "are entitled to qualified immunity if (1) their actions did not violated clearly established law, or 2) it was objectively reasonable for them to believe that their actions did not violate such law." Warren v. Keane, 196 F.3d 330, 332 (2d Cir. 1999) (citation omitted). "Qualified immunity does not apply to suits against individuals in their official capacities." Pilgrim, 2010 WL 372883, at * 16 (citing Kentucky v. Graham, 473 U.S. 159, 167, 105 S. Ct. 3099, 3105-06 (1985) ("The only immunities that can be claimed in an official-capacity action are forms of sovereign immunity that the entity, qua entity, may possess, such as the Eleventh Amendment.")) (emphasis in original).
Plaintiff has sued the defendant only in his official capacity, and the relief requested is limited to declaratory and injunctive relief. Accordingly, qualified immunity does not preclude plaintiff's claims. Pilgrim, 2010 WL 372883, at *16.
E. Whether to Grant Leave to Amend
If the recommendations contained in this report are adopted plaintiff's complaint will be dismissed. The next issue to be addressed, then, is whether plaintiff should be afforded an opportunity to further amend his complaint to assert additional facts demonstrating the existence of plausible constitutional claims.
Ordinarily, a court should not dismiss a complaint filed by a pro se litigant without granting leave to amend at least once if there is any indication that a valid claim might be stated. Branum v. Clark, 927 F.2d 698, 704-05 (2d Cir. 1991) (emphasis added); see also Fed. R. Civ. P. 15(a) (leave to amend "shall be freely given when justice so requires"). Notwithstanding the familiar and well-accepted precept that leave to amend should be granted freely and is typically permitted, if a claim contained in a proposed amended complaint would be vulnerable in the face of a Rule 12(b)(6) motion then permitting amendment would be an act of futility which should not be sanctioned. See, e.g., Saxholm AS v. Dynal, Inc., 938 F. Supp. 120, 124 (E.D.N.Y. 1996); In re Boesky Sec. Litig., 882 F. Supp. 1371, 1379 (S.D.N.Y. 1995). "In considering whether to grant a motion for leave to amend, the court may properly take into account the futility associated with the newly added claims or defenses." Clarke v. Max Advisors, LLC, 235 F. Supp.2d 130, 151 (N.D.N.Y. 2002) (citing Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 230 (1962)). "Quite sensibly, a court may properly deny leave to amend when the claim or defense sought to be added would not withstand a likely motion to dismiss for failure to state a legally cognizable claim or defense." Clarke, 235 F. Supp. 2d at 151 (citing Lucente v. Int'l Bus. Mach. Corp., 310 F.3d 243, 259 (2d Cir. 2002)). Stated differently, "[w]here it appears that granting leave to amend is unlikely to be productive, . . . it is not an abuse of discretion to deny leave to amend." Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993) (citations omitted); accord Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *1 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.) ("[T]he court need not grant leave to amend where it appears that amendment would prove to be unproductive or futile.") (citation omitted), aff'd, 175 F.3d 1007 (2d Cir. 1999).
In this instance, plaintiff has already twice amended his complaint. Moreover, the defects discerned, including the mootness of plaintiff's claims and, more significantly, the fact that they are precluded by the rule in Heck and in any event should have been asserted in a habeas petition and not a section 1983 complaint, suggest that amendment in this case would be futile, at least absent plaintiff's agreement to reconfigure his complaint in this action as a habeas petition. In deference to his pro se status, however, and the fact that plaintiff seeks release from confinement I recommend that plaintiff be granted leave to convert, that the plaintiff be required to advise the court within thirty days from the date of any order adopting this report and recommendation whether he wishes to convert the complaint to a habeas petition brought pursuant to 28 U.S.C. § 2254, and if so, that he be given leave to amend in order to attempt to cure the other deficiencies noted above.
F. Stay of Discovery
Defendant also moves order pursuant to Federal Rule of Civil Procedure Rule 26(c)(1) for a protective order staying discovery pending the resolution of his motion to dismiss. Rule 26(c)(1) of the Federal Rules of Civil Procedure provides, in relevant part, that
[a] party or any person from whom discovery is sought may move for a protective order in the court where the action is pending . . . The Court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (A) forbidding the disclosure or discovery.Fed. R. Civ. P. 26(c)(1); see also Spencer Trask Software and Information Services, LLC v. RPost Int'l Ltd., 206 F.R.D. 367, 368 (S.D.N.Y. 2002) (granting stay of discovery pending determination of motion to dismiss where court found defendants presented "substantial arguments" for dismissal of many if not all of the claims in the lawsuit); United States v. Cnty. of Nassau, 188 F.R.D. 187, 188-89 (E.D.N.Y. 1999) (granting stay of discovery during the pendency of a motion to dismiss where the "interests of fairness, economy and efficiency . . . favor[ed] the issuance of a stay of discovery," and where the plaintiff failed to claim prejudice in the event of a stay.). Plaintiff does not oppose defendant's request.
In light of my recommendation that the court dismiss plaintiff's complaint, and plaintiff's consent to the entry of a stay of discovery, I find the existence of good cause to issue an order protecting the defendants from the burden of engaging in discovery until after a determination is made on this report and recommendation and it is determined as to how this action will proceed.
In the event of a conversion of plaintiff's complaint to a habeas petition under 28 U.S.C. § 2254, no discovery will likely take place in action. Bracy v. Gramley, 520 U.S. 899, 904, 117 S. Ct. 1793, 1796-97 (1999).
IV. SUMMARY AND RECOMMENDATION
In this civil rights action plaintiff complains that his rights under the RLIUPA and the First Amendment were violated when he was denied parole at an appearance before the Parole Board in October of 2008 as a result of his refusal to participate in the SOCTP, and as relief seeks a declaratory judgment and his immediate release to parole. Upon plaintiff's successful state court challenge to that Parole Board determination, plaintiff was granted a rehearing, and later appeared before the Parole Board yet again; both times he was apparently denied release to parole, though neither of those determinations is the subject of plaintiff's current complaint. Having concluded that plaintiff's challenge to the October 2008 denial of parole is both moot and precluded under Heck, and in any event because the relief now sought - his immediate release from prison - may not be obtained by way of a civil rights complaint, I have determined that plaintiff has failed to state a cognizable civil rights claim, and therefore recommend dismissal of the complaint in its entirety, with leave to convert his complaint to a habeas petition and to amend the petition to cure the other substantive deficiencies noted.
Accordingly, it is hereby respectfully
RECOMMENDED that defendant's motion to dismiss plaintiff's complaint (Dkt. No. 27) be GRANTED, and that plaintiff's complaint be DISMISSED in its entirety, with leave to convert his complaint to a habeas petition; and it is further
RECOMMENDED that plaintiff be given thirty (30) days from the date of any order adopting this report and recommendation to advise the court if he wishes the court to convert the complaint to a habeas corpus petition brought pursuant to 28 U.S. C. § 2254, and if so, to file a petition curing the deficiencies noted in this report.
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); and it is further
ORDERED that Andrea W. Evans, as the current Chair of the New York State Division of Parole, be substituted as the named defendant in the place of George Alexander; and it is further
ORDERED that discovery in this action is STAYED until a determination is made with regard to this report and recommendation, and it is determined how this action will proceed; and it is further
ORDERED that the clerk is also serve a copy of the report and recommendation upon the parties in accordance with this court's local rules.
David E. Peebles
U.S. Magistrate Judge
Dated: August 25, 2011
Syracuse, NY