Opinion
6:20-CV-06168 EAW
2022-08-22
Jeffrey Blane HOUGHTALING, Plaintiff, v. OSI DOWNES, Parole Officer John Pestillo, Senior Parole Officer O'Conner, Assistant Western Deputy Chief Jeff Jones, Defendants.
Jeffrey Blane Houghtaling, Rochester, NY, Pro Se. Heather Lynn McKay, New York State Attorney General's Office Department of Law, Rochester, NY, for Defendants.
Jeffrey Blane Houghtaling, Rochester, NY, Pro Se. Heather Lynn McKay, New York State Attorney General's Office Department of Law, Rochester, NY, for Defendants.
DECISION AND ORDER
ELIZABETH A. WOLFORD, Chief Judge
INTRODUCTION
Plaintiff Jeffrey Blane Houghtaling ("Plaintiff"), proceeding pro se, asserts claims against defendants OSI Downes, Parole Officer John Pestillo ("PO Pestillo"), Senior Parole Officer O'Conner ("SPO O'Conner"), and Assistant Western Deputy Chief Jeff Jones (collectively, "Defendants"), pursuant to 42 U.S.C. § 1983. (Dkt. 6). Presently before the Court are the following motions: (1) Defendants' motion to dismiss Plaintiff's amended complaint (Dkt. 32); (2) Plaintiff's motions for judgment on the pleadings (Dkt. 36; Dkt. 42); (3) Plaintiff's motion for a contempt of court hearing (Dkt. 39); (4) Plaintiff's motion for a stay (Dkt. 45); and (5) Plaintiff's motion for relief (Dkt. 47). For the reasons explained below, Defendants' motion to dismiss (Dkt. 32) is granted in part and denied in part. Further, Plaintiff's motions for judgment on the pleadings (Dkt. 36; Dkt. 42) are denied without prejudice, and his remaining motions (Dkt. 39; Dkt. 45; Dkt. 47) are denied.
Plaintiff filed his original complaint on March 20, 2020. (Dkt. 1). Thereafter, on May 22, 2020, Plaintiff filed a letter request, seeking to revise his complaint. (See Dkt. 2). The Court instructed Plaintiff that it could not accept Plaintiff's changes as submitted, and directed him to file an amended complaint. (See Dkt. 3 ("Accordingly, Plaintiff may file an amended complaint as of right without leave of the Court. In other words, if at this time Plaintiff wishes to file an amended complaint with his proposed changes, he does not have to file a motion to amend; he may instead submit an amended complaint that includes all the allegations against each Defendant so that the amended complaint stands alone as the only complaint to be answered.")). Plaintiff filed an amended complaint on September 29, 2020. (Dkt. 6).
BACKGROUND
The following facts are taken from Plaintiff's amended complaint. (Dkt. 6). As required on a motion to dismiss, the Court treats Plaintiff's allegations as true.
Plaintiff's claims stem from actions allegedly taken by certain individuals employed at the parole office located at 350 South Avenue, Rochester, New York, during the time that he was on state parole. Plaintiff alleges he was the victim of an excessive search and battery, experienced retaliatory treatment by members of the probation department, and was wrongfully denied early termination of his parole term by parole staff he never met. Plaintiff alleges that his parole supervision was "filled with violence," he battled fear and anxiety because he did not know who his parole officer was, he was not assigned a parole officer to contact for two months of his 11-month parole term, and also that he had six different parole officers during his 11 months on parole. (Id. at 4). He alleges that the "horrific treatment" he received was in violation of the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments. (Id. at 2-4, 13).
The alleged assault and battery took place at 350 South Avenue on March 22, 2017, two days after Plaintiff served a notice of deposition on C.O. Zmuda in connection with another federal court case. (Id. at 4). Plaintiff was "left in the airlock" until PO Pestillo arrived and escorted him into "the preplanned assault room." (Id.). The officers had a metal detector wand they never used, which Plaintiff alleges demonstrates that the assault "was clearly a set up." (Id. at 4-5). Plaintiff had recently been released from the hospital after having "a[n] 8x3x3 piece of [his] lung cut out," from which he had four wounds. (Id. at 5). He also alleges that he had a "standing frisk permit" from DOCCS, but that was ignored by OSI Downes. (Id.). Plaintiff alleges that PO Pestillo, who had visited his home after his surgery, informed OSI Downes where Plaintiff's wounds were located, and OSI Downes, wearing black leather gloves, reached under Plaintiff's coat and "gouged his fingers into [his] wounds." (Id.).
Following the alleged assault, on April 12, 2017, Plaintiff met with Office of Investigation ("OSI") investigators Orchard and John Delanzo at 350 South Avenue. (Id.). The meeting was held at the parole office over Plaintiff's protest, as OSI Delanzo initially agreed to meet Plaintiff at Panera Bread. (Id.). OSI Orchard told Plaintiff that Bureau Chief Degal reviewed the video recording of the alleged assault, and submitted a written report that "no assault has happened as reported by the parolee." (Id.). Plaintiff alleges that OSI Orchard was "very bossy" and "would not let [him] stand," and that he was threatened during the interview, including when OSI Orchard told him, "I could smack you in the mouth with an open hand and make you bleed and that would not be an assault." (Id.). Plaintiff alleges that OSI Orchard's declaration that he believed the report of no assault demonstrates a "conspiracy to cover up," and that the investigation was "one-sided," "biased," and "prejudicial," in violation of his due process rights. (Id.).
Plaintiff next alleges that he was wrongfully denied his "Merrit Termination of Sentence," for early termination of his parole term (hereinafter, "merit termination") which he expected on November 22, 2017. (Id. at 6). On June 13, 2017, Plaintiff inquired about his merit termination to SPO O'Conner, who told Plaintiff to "keep doing good and pay your fines." (Id. at 9). On November 10, 2017, Plaintiff submitted his merit termination application. (Id. at 27). Plaintiff called defendant Jones on November 29, 2017, to inquire as to the status of his application, and defendant Jones told him that he had been "deferred." (Id. at 6). When Plaintiff asked defendant Jones "on what grounds," defendant Jones said, "I deferred you." (Id.). Plaintiff alleges that he told defendant Jones that he paid his fines and complied with his six parole officers over the past 11 months, and also raised several issues, including the alleged assault and the fact that he did not have any parole officer to contact for two months of his parole. (Id. at 6-7). Defendant Jones responded that he knew Plaintiff was recording the conversation and had "nothing more to say." (Id. at 7). Plaintiff told defendant Jones that the "deferral decision is arbitrary and capricious," and that he would "take [him] to court." (Id.).
Plaintiff alleges that, shortly thereafter, SPO O'Conner called Plaintiff and informed him that defendant Jones wanted to meet with him at 1:00 p.m. (Id.). Because Plaintiff was working at that time, he scheduled the meeting for 9:00 a.m. the next morning. (Id.). At the meeting, defendant Jones read inaccurate information about his sentence; that is, he cited to Plaintiff's eight-year consecutive sentence by Judge Punch, which was later determined to be illegal, and Plaintiff alleges this was in violation of DOCCS Directive 9221. (Id.). Defendant Jones challenged Plaintiff's sobriety and asked him to reveal the identity of his Alcoholics Anonymous sponsor, which Plaintiff would not reveal. (Id. at 7-8). At the hearing, Plaintiff presented a "mitigating factor," that a doctor improperly prescribed him an opiate, which he alleges could have triggered his DWI, and that he had six different parole officers over 11 months, and was subject to an assault. (Id. at 8). Plaintiff also informed defendant Jones that he needed the ability to travel. (Id.). When defendant Jones said, "you can travel, we will have you check in with the local police department," Plaintiff said that was "ridiculous" and left the meeting. (Id.).
In June 2017, Plaintiff contacted his parole officer, PO Smith, about employment with NYSDOT Emergency Response in Hammondsport, starting on June 5, 2017. (Id. at 9). PO Smith informed Plaintiff that he was no longer Plaintiff's parole officer and instructed Plaintiff to "contact O'Conner Monday morning." (Id.). Plaintiff asked PO Smith for SPO O'Conner's cell phone number "to no avail." (Id.). Plaintiff did not have the phone number for SPO O'Conner to inform her of the employment position in Hammondsport, and he alleges that he lost this very important position, costing him and his family tens of thousands of dollars. (Id.). Plaintiff alleges that before he reported the assault he was permitted to go to school in Oswego and to stay in a hotel to rectify his Environmental licenses, but that after he reported the assault, parole applied "more strict and confirmed conditions" and refused to amend his curfew in writing. (Id.).
Plaintiff also raises issues he encountered with another parole officer, PO Medina, who became his parole officer in September 2017. (Id. at 10). PO Medina gave Plaintiff a "report date" of October 30, 2017. (Id.). On October 25, 2017, PO Medina called Plaintiff six times while he was at work, and texted Plaintiff that he needed to call her. (Id.). Plaintiff texted her back, sending her "a picture of [him] donned in work gear and heavy equipment and told her I cannot be on the phone at work." (Id.). On October 28, 2017, PO Medina called Plaintiff's wife and harassed her at work, asking for Plaintiff's phone number and inquiring as to where and what time he left work. (Id.). On October 30, 2017, Plaintiff's report day, he went to report but PO Medina was not present. (Id. at 11). Plaintiff was interviewed by another parole officer, who served Plaintiff with a new report date of January 23, 2018, which was after his expected merit termination date of November 22, 2017. (Id.). Plaintiff thereafter texted PO Medina, raising that he was given a report date of January 23, 2018, which was after his merit termination date, and said "I hope you have not made a pre-determination without ever meeting me." (Id.).
On November 6, 2017, PO Medina came to Plaintiff's home for a wellness check, at which time he told her that he was not missing or unreachable, and that it was not past his curfew. (Id.). When Plaintiff asked PO Medina about his merit termination application, PO Medina asked Plaintiff, "you did not pay your fines, did you?" (Id.). Plaintiff told PO Medina that she was "given wrong information," but PO Medina told Plaintiff that she "already did your [merit] determination." (Id.)
On November 10, 2017, Plaintiff received notification via email from Dorthea Quinn, from Fishkill Correctional Facility, stating that she located a record for Plaintiff's paid fines, and they were not sent to the court or to parole. (Id. at 12). Plaintiff alleges that Ms. Quinn sent notification to parole and to the court clerk in Orleans County, but the court clerk's office did not receive notification until November 16, 2017. (Id.). Plaintiff alleges that "[t]his is clear proof, contrary to NYSDOCCs directive 9221, information was not up to date and accurate," and that "[w]hen NYSDOCCS does not follow their own Directives it is unlawful, actionable in court." (Id.).
According to records attached to Plaintiff's amended complaint, Plaintiff was granted a merit termination of his parole term on January 25, 2018. (Id. at 55-56).
Plaintiff concludes that it is "troubling and unreasonable" that parole officers he never met made the determination on his merit termination application, and that he never met or was interviewed by any of the parole staff before the decision was made. (Id. at 12). Plaintiff alleges that the decision is arbitrary and capricious, and a violation of his due process rights. (Id.).
Defendants filed their motion to dismiss the amended complaint on November 16, 2021. (Dkt. 32). Included with their motion papers is a DVD (Exhibit 1), which is a video recording of the assault Plaintiff alleges occurred at the probation office on March 22, 2017. (See Dkt. 33). The Court issued a scheduling order on the motion to dismiss. (Dkt. 34). Plaintiff filed a response on November 18, 2021 (Dkt. 35), and Defendants replied on December 22, 2021 (Dkt. 38). Plaintiff thereafter made further submissions in opposition to the motion to dismiss. (See Dkt. 43; Dkt. 54).
DISCUSSION
I. Motion to Dismiss
A. Legal Standard
"In considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), a district court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint." DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). A court should consider the motion by "accepting all factual allegations as true and drawing all reasonable inferences in favor of the plaintiff." Trs. of Upstate N.Y. Eng'rs Pension Fund v. Ivy Asset Mgmt., 843 F.3d 561, 566 (2d Cir. 2016). To withstand dismissal, a plaintiff must set forth "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "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." Turkmen v. Ashcroft, 589 F.3d 542, 546 (2d Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)).
"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (internal quotations and citations omitted). "To state a plausible claim, the complaint's '[f]actual allegations must be enough to raise a right to relief above the speculative level.' " Nielsen v. AECOM Tech. Corp., 762 F.3d 214, 218 (2d Cir. 2014) (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955). While the Court is "obliged to construe [pro se] pleadings liberally, particularly when they allege civil rights violations," McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004), even pleadings submitted pro se must satisfy the plausibility standard set forth in Iqbal and Twombly, see Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) ("Even after Twombly, though, we remain obligated to construe a pro se complaint liberally.").
B. The March 22, 2017 Parole Office Incident
As explained above, Plaintiff alleges he was the victim of an assault and battery allegedly perpetrated by PO Pestillo and OSI Downes. Construing the amended complaint generously, Plaintiff asserts claims based on an illegal search at the parole office, and also that he was subject to an excessive use of force when OSI Downes gouged his fingers into his wounds. Defendants argue these claims should be dismissed because (1) as a parolee, Plaintiff has a diminished expectation of privacy, and (2) Plaintiff's allegations regarding the force used during the search are conclusory and do not rise to the level of an Eighth Amendment violation, and a review of the video recording of the incident confirms that any use of force was de minimis. (See Dkt. 32-2 at 6-9).
"Whether a search is reasonable is determined by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests." United States v. Quinones, 457 F. App'x 68, 69 (2d Cir. 2012) (quoting Samson v. California, 547 U.S. 843, 848, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006)). "Parolees subject to terms and conditions of release 'have severely diminished expectations of privacy by virtue of their status alone.' " Id. (quoting Samson, 547 U.S. at 852, 126 S.Ct. 2193). "The Supreme Court has repeatedly recognized that states have an 'overwhelming interest' in supervising parolees in order to prevent recidivism." Id. at 70.
The Second Circuit recently addressed the standard applicable to the search of a parolee by a parole officer in United States v. Braggs, 5 F.4th 183 (2d Cir. 2021). In Braggs, the Second Circuit noted the distinction between the Supreme Court's decision in Samson, which involved the search of a parolee by a police officer, and the situation presented in Braggs, where a parolee was searched by a parole officer. Id. at 187-88; see also Samson, 547 U.S. at 857, 126 S.Ct. 2193 ("[T]he Fourth Amendment does not prohibit a police officer from conducting a suspicionless search of a parolee."). The court noted that although it had "continued to abide by the Special Needs standard for parole searches, the trial courts in this Circuit have at times misunderstood the Supreme Court's decision in Samson . . . as undermining our Special Needs jurisprudence." Braggs, 5 F.4th at 187. It clarified that it "need not apply Samson," explaining that when a parolee is searched by parole officers there is a "critical difference," because police officers are charged with vindicating the State's general interest in law enforcement, whereas parole officers are responsible for furthering the special needs of the parole system. Id. at 187-88. Under the latter circumstance, the Special Needs Doctrine, wherein "a parole officer may search a parolee so long as the search is reasonably related to the performance of the officer's duties," applies. Id. at 184; see also id. at 188 ("[a]pplying the Special Needs Doctrine, we conclude that the search of Braggs's house was reasonably related to the performance of the DOCCS officers' duties and therefore constitutionally permissible," and "[b]ecause a search undertaken by a parole officer of a parolee to detect parole violations is reasonably related to the parole officer's duties, such a search is permissible under the Special Needs framework and accordingly comports with the Fourth Amendment." (alterations, citations, and quotations omitted)); see also United States v. Lambus, 897 F.3d 368, 403 (2d Cir. 2018) ("New York law authorizes a parole officer to search a parolee's home or person, without a search warrant, if the search is 'rationally and reasonably related to the performance of his duty as a parole officer.' ") (quoting People v. Huntley, 43 N.Y.2d 175, 179, 401 N.Y.S.2d 31, 371 N.E.2d 794 (1977)); United States v. Grimes, 225 F.3d 254, 258, 259 n.4 (2d Cir. 2000) (explaining that "parole justifies some departure from traditional Fourth Amendment standards" and "a search of a parolee is permissible so long as it is reasonably related to the parole officer's duties").
Applying the Special Needs Doctrine, the Court concludes that Plaintiff has failed to allege a violation of his constitutional rights because, under the circumstances alleged in the amended complaint, the search was reasonably related to the performance of the parole officers' duties. Plaintiff alleges that he was searched by parole officers after he entered the parole office. (See Dkt. 6 at 4-5). Parole officers have an interest in ensuring that a parolee is not armed or carrying other contraband when entering the parole office. See Ficklin v. Rusinko, 351 F. Supp. 3d 436, 446 (W.D.N.Y. 2019) ("The search took place while Plaintiff was being held in custody within the Division's offices, where it could be reasonably expected that a parolee would be searched."); see also United States v. Thomas, 729 F.2d 120, 123-24 (2d Cir. 1984) (explaining that "[a] parolee's diminished expectation of privacy would necessarily be further diminished while he is in his parole officer's office," and "[t]he expectation of privacy of a parolee in a parole officer's office would be at its lowest ebb"). Plaintiff does not allege any specifics relating to the search, nor does he allege that a body cavity search was performed, or that he was subject to a strip search. Rather, Plaintiff alleges that a metal detector wand was not used, and ISO Downes reached under his coat to perform the search. These allegations, coupled with the fact that Plaintiff was at the time a parolee being searched at the parole office, do not amount to a violation of his Fourth Amendment rights. Accordingly, Plaintiff's claim that he was subject to an illegal search in violation of the Fourth Amendment is dismissed.
The Court turns next to Plaintiff's claim that he was subject to an excessive use of force. As noted above, Defendants do not dispute that the search by ISO Downes and PO Pestillo occurred. Rather, they argue that any force used was incidental to the lawful search, and the video confirms that any force used was de minimis. (See Dkt. 32-2 at 7-8). Defendants describe the video footage of the alleged assault, arguing that the "entire pat frisk by Downes spans approximately one minute," that "Downes' only contact with Plaintiff's chest was extremely brief, lasting approximately [9 seconds]," and that Plaintiff "responds to the touch by taking his left hand off the wall and saying something, to which Downes responds by ceasing all contact with the affected area, ending the frisk, and leaving the room." (Id. at 8). Thereafter, Plaintiff participated in the remainder of the search. (Id.).
The Court first addresses the standard applicable to Plaintiff's claim. Although Plaintiff cites the Eighth Amendment in support of this claim, and Defendants' argument is focused on the Eighth Amendment (see Dkt. 32-2 at 7-9), the Court concludes that the correct standard by which to evaluate Plaintiff's excessive force claim is pursuant to the Fourth Amendment. "Neither the Supreme Court nor the Second Circuit has directly addressed whether a parolee's excessive force claim is more properly analyzed under the Fourth or the Eighth Amendment," but "the consensus among the district courts in this Circuit strongly favors the application of Fourth Amendment principles." Ficklin, 351 F. Supp. 3d at 454; see also Cox v. Fischer, 248 F. Supp. 3d 471, 479 (S.D.N.Y. 2017) ("[W]hen the parolee is seized, his right to be free from excessive force derives from the same source as that of other members of the public—the Fourth Amendment . . . . Therefore, although Defendants apply Eighth Amendment standards to [plaintiff]'s excessive force claim arising out of the parole office incident, the Court analyzes this claim under the Fourth Amendment."); Turner v. White, 443 F. Supp. 2d 288, 296 (E.D.N.Y. 2005) (noting that "[t]he status of a parolee who seeks to bring claims of excessive force against his parole officer is unsettled in this Circuit," and noting cases that "have held that constitutional claims by parolees are governed by an Eighth and Fourteenth Amendment analysis . . . appear to be contrary to the approach followed by district courts in this Circuit" (citing cases)). Accordingly, the Court evaluates Plaintiff's claim for excessive force pursuant to the Fourth Amendment.
"The Fourth Amendment, which protects against unreasonable seizures, governs a claim that excessive force was used . . . ." Mickle v. Morin, 297 F.3d 114, 120 (2d Cir. 2002). "[T]he reasonableness question is whether the officers' actions were 'objectively reasonable' in light of the facts and circumstances . . . without regard to their underlying intent or motivation." Id. (citation omitted). "A plaintiff need not demonstrate serious injury to prevail in an excessive force claim [under the Fourth Amendment]." Sforza v. City of New York, No. 07 Civ. 6122(DLC), 2009 WL 857496, at *15 (S.D.N.Y. Mar. 31, 2009); see also Maxwell v. City of New York, 380 F.3d 106, 108 (2d Cir. 2004) ("[W]e have permitted a plaintiff's claim to survive summary judgment on allegations that, during the course of an arrest, a police officer twisted her arm, 'yanked' her, and threw her up against a car, causing only bruising.").
Plaintiff alleges that PO Pestillo was aware of the existence and location of four large incisions from his lung surgery and informed ISO Downes where they were located. (See Dkt. 6 at 5). Thereafter ISO Downes, while wearing black leather gloves, reached up under Plaintiff's coat and "gouged his fingers into [Plaintiff's] wounds." (Id.). The standard for excessive force under the Fourth Amendment is not a demanding one. See, e.g., Castro v. Cnty. of Nassau, 739 F. Supp. 2d 153, 176 (E.D.N.Y. 2010) (plaintiff's testimony that handcuffs "left imprints on his wrists and caused his wrists to become 'red and sore,' " was sufficient); Sforza, No. 07 Civ. 6122, 2009 WL 857496, at *15 ("bruising and other nonpermanent injuries are sufficient" to demonstrate serious injury to prevail in an excessive force claim). Although the amended complaint does not include specific allegations of the injury Plaintiff sustained from the alleged use of force by PO Pestillo and OSI Downes, "[i]t is the force used, not the injuries caused, which must be determined to be de minimis as a matter of law." Campbell v. City of New York, No. 06-CV-5743, 2010 WL 2720589, at *8 (S.D.N.Y. June 30, 2010); see also Pulliam v. Lilly, No. 07-CV-1243 (SJF)(AKT), 2010 WL 935383, at *4 (E.D.N.Y. Mar. 11, 2010) ("[T]he record is devoid of any evidence reflecting a reason for the use of any force during the interrogation, i.e., that plaintiff was acting aggressively or otherwise posed a threat to the officers during the interrogation. Accordingly, the use of more than de minimis force, if even that, under the circumstances presented here, would not be objectively reasonable."); Yang Feng Zhao v. City of New York, 656 F. Supp. 2d 375, 391 (S.D.N.Y. 2009) (holding that during interrogation at police precinct, where there is "no reason for any use of force," then "any force is potentially illegitimate"). In the instant matter, the circumstances surrounding the search—at least as they are alleged by Plaintiff—indicate that there was no justifiable reason for ISO Downes to have gouged his fingers into Plaintiff's wounds. Accordingly, Plaintiff has plausibly alleged that unreasonable force was used against him.
Defendants argue that the video of the March 22, 2017 incident demonstrates that any use of force by ISO Downes and PO Pestillo was de minimis. As explained above, the amount of force required to state a claim for violation of the Fourth Amendment is not significant, particularly when the circumstances do not require that any force be used. The Court has reviewed the video recording of the search and finds that, viewed in the light most favorable to Plaintiff, it shows that OSI Downes searched Plaintiff, including his chest area, and that Plaintiff reacted following OSI Downes' contact with his chest. The "pat frisk" portion of the search referenced by Plaintiff lasts approximately 65 seconds, and both OSI Downes and PO Pestillo appear to participate in the search. The video also shows OSI Downes searching Plaintiff's chest area, during which time Plaintiff reacts by taking his hand off the wall and saying something to OSI Downes. The video recording has no sound and is of somewhat poor quality, and therefore the precise location of OSI Downes' hands on Plaintiff's chest area is not entirely clear from the video footage. Although OSI Downes' contact with Plaintiff's chest was brief, it was long enough for OSI Downes to have engaged in the contact alleged that Plaintiff—that is, "gouged his fingers" into Plaintiff's wounds. Given the nature of the video, the Court declines Defendants' invitation to make factual findings about the nature of the force used, particularly on a motion to dismiss.
Defendants argue that the Court may consider the video recording of the March 22, 2017 incident because it is incorporated by reference into Plaintiff's amended complaint. (Dkt. 32-2 at 5-6). "A document is incorporated by reference if the complaint makes, a clear, definite and substantial reference to the document." Stinnett v. Delta Air Lines, Inc., 278 F. Supp. 3d 599, 608 (E.D.N.Y. 2017) (quotations and citation omitted). Here, Plaintiff references the video of the alleged assault both in his amended complaint and in documents he has attached to his amended complaint. (See, e.g., Dkt. 6 at 4 (alleging that he was the victim of an assault on March 22, 2017, and that he "do[es] have the video . . . which very clearly reveals the vicious assault and leaves no doubt, the evil mindset of staff at 350 South Avenue."); id. (noting that "[e]verything is 'on the record' via recording, video, or written); see also id. at 49 (letter to Bureau Chief of Parole, thanking her for "the video of the assault and battery")). Given Plaintiff's clear and definite references to the video recording of the March 22, 2017 alleged assault, it has been incorporated by reference into the amended complaint, and therefore the Court has considered it in evaluating Defendants' motion to dismiss.
Finally, Defendants argue that they are entitled to qualified immunity. (Dkt. 32-2 at 15). "A qualified immunity defense is established if (a) the defendant's action did not violate clearly established law, or (b) it was objectively reasonable for the defendant to believe that his action did not violate such law." Tierney v. Davidson, 133 F.3d 189, 196 (2d Cir. 1998) (citation omitted). Although claims of qualified immunity "should be decided as early as possible in a case," it "is often best decided on a motion for summary judgment when the details of the alleged deprivations are more fully developed." Walker v. Schult, 717 F.3d 119, 130 (2d Cir. 2013); see also McKenna v. Wright, 386 F.3d 432, 435-36 (2d Cir. 2004) (Generally, "the defense of qualified immunity cannot support the grant of a [Rule] 12(b)(6) motion for failure to state a claim upon which relief can be granted.") (alteration in original) (quoting Green v. Maraio, 722 F.2d 1013, 1018 (2d Cir. 1983)). Therefore, "a defendant asserting a qualified immunity defense on a motion to dismiss 'faces a formidable hurdle . . . and is usually not successful.' " Barnett v. Mt. Vernon Police Dep't, 523 F. App'x 811, 813 (2d Cir. 2013) (quoting Field Day, LLC v. Cnty. of Suffolk, 463 F.3d 167, 191-92 (2d Cir. 2006)). "The defense will succeed only where entitlement to qualified immunity can be established 'based [solely] on facts appearing on the face of the complaint.' " Id. (quoting McKenna, 386 F.3d at 436).
Defendants also argue that any Defendants allegedly involved in consideration of Plaintiff's merit termination are entitled to absolute immunity. (Dkt. 32-2 at 15). As further explained below, the Court finds that Plaintiff's allegations relating to his merit termination do not rise to the level of a constitutional violation, and therefore the Court does not reach this issue.
Given the allegations contained in the amended complaint—that OSI Downes and PO Pestillo used excessive force against Plaintiff—granting a qualified immunity defense is not appropriate at this juncture. It is clearly established law that the use of excessive force is unconstitutional. Similarly, qualified immunity requires a finding of objective reasonableness, which would be inconsistent with the Court's finding that Plaintiff has plausibly alleged the use of unreasonable force against him. Accordingly, Defendants' motion to dismiss Plaintiff's claim for excessive use of force against OSI Downes and PO Pestillo is denied.
C. Conspiracy and Retaliation Claims
Viewing Plaintiff's amended complaint in the light most favorable to him, he also alleges that the March 22, 2017 assault was the product of "conspiracy and retaliation within NYSDOCCS Parole." (See Dkt. 6 at 4). In support of these claims, Plaintiff alleges that following his serving a deposition notice on a corrections officer in his other federal case, parole conspired to assault and retaliate against him. (See id. ("I have never had a problem with parole, until I served Counsels Office a notice of intent to depose C.O. Zmuda in Federal Court. C.O. Zmuda was served on March 20, 2017. Two days before the Assault and Battery upon me on March 22, 2017.")). As explained below, Plaintiff's allegations of conspiracy and retaliation are conclusory, and the amended complaint does not contain factual information supporting these claims.
1. Conspiracy Claim
Defendants contend that Plaintiff's conspiracy claim must be dismissed because (1) he has failed to allege any facts suggesting an agreement to violate his constitutional rights, and (2) any such claim is barred by the intracorporate conspiracy doctrine. (See Dkt. 32-2 at 9-11).
To plead a conspiracy claim, Plaintiff must allege facts supporting "(1) an agreement between two or more state actors or between a state actor and a private entity, (2) to act in concert to inflict an unconstitutional injury, and (3) an overt act done in furtherance of that goal, causing damages." Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir. 1999). "[C]omplaints containing only conclusory, vague, or general allegations that the defendants have engaged in a conspiracy to deprive the plaintiff of his constitutional rights are properly dismissed; diffuse and expansive allegations are insufficient, unless amplified by specific instances of misconduct," and "[t]he complaint must contain enough factual matter (taken as true) to suggest that an agreement was made." Chamberlain v. City of White Plains, 986 F. Supp. 2d 363, 388 (S.D.N.Y. 2013) (quotations and citations omitted).
In support of his claim that Defendants conspired to assault him, Plaintiff alleges that the attack occurred two days after he served a deposition notice on C.O. Zmuda. (See, e.g., Dkt. 6 at 5 ("C.O. Zmuda was served on March 20, I was viciously attacked by ISO Down[es] on March 22.")). However, in support of this assertion, Plaintiff does not allege how Defendants had knowledge of the deposition notice, their motivation for agreeing to harm Plaintiff, which Defendants conspired together, or whether they conspired with actors involved in the other federal case. Rather, Plaintiff relies solely on the temporal proximity of service of the deposition notice to the alleged assault, to support that there was some agreement to attack Plaintiff. Further, although Plaintiff alleges in conclusory fashion that Defendants conspired to "cover up" the assault (id.), he also offers no factual support for this allegation. Rather, he simply alleges that the investigation was "one-sided" and that another individual—Deputy Commissioner Chief Stephen Maher—"was part of it" because he would not respond to Plaintiff's phone calls. (Id.). These sweeping and conclusory allegations are not sufficient to plausibly allege a claim for conspiracy which, as explained above, must be "amplified by specific instances of misconduct." Chamberlain, 986 F. Supp. 2d at 388.
Defendants also argue that Plaintiff's claims are barred by the intracorporate conspiracy doctrine. (See Dkt. 32-2 at 10-11). In light of the Court's conclusion that Plaintiff has failed to adequately plead his conspiracy claim, it need not reach that issue.
2. Retaliation Claim
Defendants contend that Plaintiff's retaliation claim must be dismissed because he has not pleaded a causal connection between the filing of his other federal lawsuit in 2014 and the March 22, 2017 alleged assault at the parole office, and the pat frisk he underwent on that date is too de minimis to constitute an adverse action. (Dkt. 32-2 at 11-13).
"To state a First Amendment retaliation claim sufficient to withstand a motion to dismiss, a plaintiff must allege '(1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there was a causal connection between the protected speech and the adverse action.' " Dolan v. Connolly, 794 F.3d 290, 294 (2d Cir. 2015) (quoting Espinal v. Goord, 558 F.3d 119, 128 (2d Cir. 2009)). "[A] key inquiry with respect to any claim of First Amendment retaliation is whether the allegedly retaliatory act was taken because of an 'impermissible reason.' " Gorman-Bakos v. Cornell Co-op Extension of Schenectady Cnty., 252 F.3d 545, 556 (2d Cir. 2001). "Retaliation claims by prisoners are 'prone to abuse' since prisoners can claim retaliation for every decision they dislike. A complaint of retaliation that is 'wholly conclusory' can be dismissed on the pleadings alone." Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (citation omitted).
Even if the filing of a deposition notice in Plaintiff's other federal lawsuit constituted protected activity (an issue the Court does not resolve), Plaintiff has failed to allege a causal connection between service of the deposition notice and the assault allegedly perpetrated by ISO Downes and PO Pestillo. For example, the amended complaint includes no facts supporting how ISO Downes and PO Pestillo were aware or became aware of the deposition notice (or that they were even aware of Plaintiff's federal lawsuit), explaining their connection to the federal lawsuit, or their motivation for allegedly harming Plaintiff. Further, although the deposition notice was served only two days prior to the alleged assault, the federal lawsuit in which the deposition notice was served was filed in July 2014 (see Dkt. 6 at 17 (deposition notice in connection with Case No. 14-cv-6416))—almost three years prior to the alleged assault on March 22, 2017, which is far too attenuated for Plaintiff to rely on temporal proximity alone. Accordingly, Plaintiff has failed to plausibly allege any causal connection between service of the deposition notice in his federal case and the alleged assault.
Plaintiff further alleges, in passing, that although parole initially permitted him to travel for schooling, work, and professional development, following his report of the assault he was required to abide by stricter conditions, including that parole refused to amend his curfew for work. (See Dkt. 6 at 9). In June 2017, Plaintiff lost out on a job because PO Smith, one of his probation officers, refused to give him SPO O'Conner's cell phone number so he could obtain clearance to travel for employment with NYSDOT. (Id.). While Plaintiff's report of the assault may constitute protected activity, see Smith v. Barone, No. 3:20cv794(VLB), 2021 WL 917118, at *4 (D. Conn. Mar. 10, 2021) ("An inmate's informal complaints or requests as well as formal grievances constitute protected activity under the First Amendment." (internal quotations and citations omitted)), Plaintiff has failed to allege the personal involvement of the named Defendants in the alleged retaliatory conduct that allegedly took place after he reported the assault. Instead, Plaintiff's allegations relating to the retaliatory acts focus on PO Smith and PO Medina, neither of whom are named as defendants in this action. Accordingly, Plaintiff's retaliation claims are dismissed.
To the extent Plaintiff alleges that defendant Jones retaliated against him when, on November 29, 2017, he informed Plaintiff that his merit termination of parole had been denied (Dkt. 6 at 6), any such claim is dismissed because Plaintiff has failed to allege any causal connection between his reporting the alleged assault in March 2017, and defendant Jones deferring his release from parole. Further, Plaintiff was granted his merit termination of parole two months later in January 2018, and Plaintiff has not adequately alleged that this delay amounted to an adverse action.
Plaintiff's retaliation claims are also undermined by his allegation that "[a]t the outset, [his] Parole supervision has been filled with violence by parole staff" (see Dkt. 6 at 4), as opposed to his experiencing mistreatment after engaging in a protected activity.
3. The Merit Termination/Parole Discharge Determination
Plaintiff also raises claims in connection with his merit termination/parole discharge, namely that he was not discharged from parole on November 22, 2017. Plaintiff alleges that the decision denying the termination of his parole was made by parole officers he did not know and had never met, in violation of his rights under the Fourteenth Amendment. (See Dkt. 6 at 3, 12).
There are multiple issues with Plaintiff's claim relating to his merit termination. First, Plaintiff does not identify the "unknown" officers who allegedly denied his merit termination. (See Dkt. 6 at 12 ("It is very troubling and unreasonable that Parole Officer's whom I never met and know nothing about me or my aspirations were decision makers in my Merrit Termination of Sentence Decision.")). Accordingly, he cannot establish the personal involvement of at least some of the Defendants for purposes of this claim.
As noted above, Plaintiff does allege that defendant Jones was involved in the deferral of his merit termination. (See Dkt. 6 at 6).
In addition, and perhaps more significantly, Plaintiff cannot establish a constitutional violation based on the denial of his merit termination application. "The mere fact that New York's parole scheme allows for the possibility of early discharge from parole . . . does not grant those on parole a liberty interest in discharge." See Smiley v. Westby, 87 Civ. 6047(LAP), 1994 WL 519973, at *5 (S.D.N.Y. Sept. 20, 1994) (citation omitted); see also Kaminski v. Rapsatt, No. 07-CV-01119, 2009 WL 1707124, at *8 (N.D.N.Y. June 17, 2009) ("a parolee has 'no liberty interest in receiving early discharge from parole, as the statute authorizing early release . . . leaves that determination to the discretion of the Parole Board.' ") (citation omitted) (quoting Pena v. Travis, No. 01 Civ.8534, 2002 WL 31886175, at *12 (S.D.N.Y. Dec. 27, 2002)); Hall v. N.Y.S. Div. of Parole, No. 99CIV11317(RMB)(JCF), 2000 WL 1099950, at *3 (S.D.N.Y. July 13, 2000) ("Petitioner's claim that he was not given a parole evaluation hearing in 1997 that might have resulted in his release from parole before his September 1998 arrest is unfounded.").
Plaintiff was not denied his merit termination, and his parole was terminated on January 25, 2018, prior to the maximum expiration date. (See Dkt. 6 at 55-56); see also http://nysdoccslookup.doccs.ny.gov/ (last visited June 22, 2022). Plaintiff does not cite, nor has the Court found, any support for his assertion that he has a constitutional right to the granting of his merit termination application by a certain date, or that the decision in that respect must be made be certain individuals. In other words, simply because Plaintiff's parole was not terminated on the date of his choosing does not create a constitutional violation. Because this claim does not amount to a constitutional violation, it is dismissed.
4. Plaintiff's Claims Against SPO O'Connor and Defendant Jones
Plaintiff alleges claims against SPO O'Conner based on "threats" and treatment he received in connection with his parole term, and against defendant Jones based on the deferral of his merit termination date. (Dkt. 6 at 3). He also alleges that they are responsible for the oversight of their staff and for the improper treatment he received at the hands of their staff. (Id.).
As explained above, the only constitutional violation adequately alleged by Plaintiff is for excessive use of force against OSI Downes and PO Pestillo. Neither SPO O'Conner nor defendant Jones was personally involved in that incident and, contrary to Plaintiff's assertion, they may not be held liable for acts committed by their employees under § 1983. See Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020) ("a plaintiff must plead and prove that each Government-official defendant, through the official's own individual actions, has violated the Constitution" (quotations and citation omitted)). Accordingly, Plaintiff's claims against SPO O'Conner and defendant Jones are dismissed.
To the extent Plaintiff alleges that defendant Jones violated his constitutional rights because he violated DOCCS Directive 9221 when he read inaccurate or incorrect information when recounting Plaintiff's previous sentence (see Dkt. 6 at 4, 7), this allegation does not rise to the level of a constitutional violation. See, e.g., Nimmons v. Fischer, No. 11-CV-817-A, 2013 WL 4495006, at *10 (W.D.N.Y. Aug. 20, 2013) ("insofar as the Complaint can be construed as alleging Defendants violated any DOCCS Directive, such claims fail because violation of a DOCCS Directive does not arise to a violation of constitutional rights to support a § 1983 civil rights claim" (citing Holcomb v. Lykens, 337 F.3d 217, 224 (2d Cir. 2013) (holding state prison directives do not create liberty interests protected by the Due Process Clause))); Jones v. McGrath, No. 20-CV-1417S, 2020 WL 7239838, at *6 (W.D.N.Y. Dec. 9, 2020) ("the alleged violation of DOCCS regulations does not represent a cognizable constitutional claim").
II. Plaintiff's Remaining Motions
Plaintiff has also filed two motions for judgment on the pleadings (Dkt. 36; Dkt. 42); a motion for a contempt of court hearing (Dkt. 39); a motion for a stay (Dkt. 45); and a "motion for relief" (Dkt. 47).
Plaintiff's motions for judgment on the pleadings (Dkt. 36; Dkt. 42) are denied without prejudice as premature. Pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, a motion for judgment on the pleadings shall be filed once the pleadings are closed. See Fed. R. Civ. P. 12(c) ("After the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings."). Defendants have not answered the amended complaint, and therefore the pleadings are not closed.
Plaintiff has also filed a motion to stay (Dkt. 45) and a motion for relief (Dkt. 47). In connection with his motion to stay, Plaintiff cites to alleged "misconduct" by defense counsel and contends that "Stay of Judgment pursuant to FRCP Rule 8 in the other joined case 14-cv-6416 may be justifiably warranted," because defense counsel's conduct "compromis[ed] the integrity of the January 19, 2022 judgment on . . . [the] other docket." (Dkt. 45 at 1-2). The "other joined case 14-cv-6416" referenced by Plaintiff is a separate case he previously filed in federal court, see Houghtaling v. Eaton, Case No. 14-cv-6416 (hereinafter, the "Eaton matter"). By way of background, on January 18, 2022, the Court dismissed the Eaton matter pursuant to Rules 37 and 41 of the Federal Rules of Civil Procedure. (See Eaton matter, Dkt. 237). On March 16, 2022, the Court granted Plaintiff's motion for an extension of time to file an appeal of the January 18, 2022 Decision and Order (see id., Dkt. 240; Dkt. 251), and the Eaton matter is presently on appeal before the Second Circuit Court of Appeals (id., Dkt. 252; Dkt. 253). Plaintiff states that the instant case was "timely joined (FRCP 18, 20)" by defense counsel with the Eaton matter on November 16, 2021. (Dkt. 45 at 1). In support of this statement, Plaintiff cites to Defendants' motion to dismiss (Dkt. 32), which attaches Plaintiff's second amended complaint in the Eaton matter as an exhibit, which defense counsel provided in support of her statement that she has "also been assigned to defend against another federal lawsuit brought by Plaintiff, which Plaintiff mentions in his amended complaint, and as such, [she] [is] fully familiar with the proceedings in that case." (See Dkt. 32-1 at ¶ 4, 7-29).
Rule 8 of the Federal Rules of Civil Procedure, which Plaintiff cites in support of his motion to stay, lays out the "General Rules of Pleading," see Fed. R. Civ. P. 8, and does not provide a mechanism for seeking to stay a judgment. Rule 62 governs stays of proceedings to enforce a judgment. See Fed. R. Civ. P. 62.
Contrary to Plaintiff's implication, defense counsel's referencing and attaching Plaintiff's pleading in the Eaton matter does not render the two cases "joined." Neither party has filed a formal motion for joinder, the Court has not determined that joinder is appropriate, and the allegations underlying Plaintiff's earlier-filed case are distinct from those underlying the present action. Plaintiff has not articulated why joinder of the cases would be appropriate pursuant to any Federal Rule of Civil Procedure, or under any other Rule. Further, Plaintiff has failed to articulate any valid basis for a stay of the judgment entered in the Eaton matter. Rather, he makes only conclusory and baseless assertions about defense counsel's truthfulness. (See, e.g., Dkt. 45 at 1 ("it has come to light defense counsel's honor and integrity, as well as defense counsel's ability to tell the truth have come under investigation here"); id. at 2 (stating that defense counsel has filed false sworn declarations)). Accordingly, his motion to stay (Dkt. 45) is denied.
Plaintiff's motion for relief (Dkt. 47)—which is the same motion he filed in connection with the Eaton matter at Docket 242—is filed pursuant to Rule 60 of the Federal Rules of Civil Procedure, and seeks relief from the January 18, 2022 Decision and Order. (See Eaton matter, Dkt. 242). For the same reasons the Court denied Plaintiff's motion filed in connection with the Eaton matter (see id., Dkt. 251) it likewise denies that same motion filed in connection with this case. Plaintiff has not articulated a valid basis for relief pursuant to Rule 60. Rather, his motion is based on mere conjecture and speculation, and ad hominem attacks on defense counsel. Accordingly, Plaintiff's motion for relief brought pursuant to Rule 60 (Dkt. 47) is denied.
Finally, Plaintiff has filed a motion for a contempt of court hearing, citing to 18 U.S.C. § 1503. (Dkt. 39). In his motion, Plaintiff lists alleged "egregious conduct" by defense counsel. Title 18, United States Code, Section 1503 criminalizes "Influencing or injuring officer or juror generally," and Plaintiff has presented no information indicating that provision is even remotely relevant to this case. Plaintiff's motion is otherwise filled with inflammatory language and baseless accusations against defense counsel. (See, e.g., id. at 2 (stating that defense counsel "lies about anything," and is a "fabricator of false facts")). Put simply, it is unclear what relief Plaintiff seeks from the Court, and he has failed to articulate any basis for a hearing at this juncture. Accordingly, his motion for a contempt of court hearing (Dkt. 39) is denied.
III. Anti-Filing Injunction
As noted above, many of the aforementioned motions are duplicative and not properly filed. For example, Plaintiff filed two motions for judgment on the pleadings which, even if properly filed, do not address the merits of Plaintiff's claims in his amended complaint, but rather contain generalizations about constitutional violations, criticize defense counsel, and attach various letters and previously filed documents. Further, it is unclear whether Plaintiff intends many of these filings to be stand-alone motions, or whether they are filed in support of prior filings. (See, e.g., Dkt. 36 (motion for judgment on the pleadings, filed in support of Docket 35 and in reply to Docket 32); Dkt. 39 (motion for contempt of court hearing, in reply to Docket 38); Dkt. 42 (motion for judgment on the pleadings, referencing Docket 31)). In these filings, Plaintiff refers to defense counsel as "untruthful" and "deceitful" (Dkt. 39 at 1, 4), and also states that she has "shameless disrespect" and "smug unlawfulness" (Dkt. 45 at 2).
Given the aforementioned filings, the Court warns Plaintiff that should he continue this course of conduct he may be subject to a filing injunction. This Court has the power, pursuant to the All Writs Act, 28 U.S.C. § 1651, to issue an injunction limiting vexatious litigation. See In re Martin-Trigona, 737 F.2d 1254, 1262 (2d Cir. 1984) (a district court has "the power and the obligation to protect the public and the efficient administration of justice from [a vexatious litigant's] litigious propensities"). "[T]he traditional standards for injunctive relief, i.e. irreparable injury and inadequate remedy at law, do not apply to the issuance of an injunction against a vexatious litigant." Id. Instead, the Second Circuit Court of Appeals has enumerated five factors to be considered in restricting a litigant's access to the court system:
(1) the litigant's history of litigation and in particular whether it entailed vexatious, harassing or duplicative lawsuits; (2) the litigant's motive in pursuing the litigation, e.g., does the litigant have an objective good faith expectation of prevailing?; (3) whether the litigant is represented by counsel; (4) whether the litigant has caused needless expense to other parties or has posed an unnecessary burden on the courts and their personnel; and (5) whether other sanctions would be adequate to protect the courts and other parties.Iwachiw v. N.Y.S. Dep't of Motor Vehicles, 396 F.3d 525, 528 (2d Cir. 2005) (quotation omitted). Plaintiff was previously warned about his filing practices in connection with the Eaton matter, due to his duplicative, voluminous, and meritless filings, which served to harass defense counsel and/or raise frivolous issues. (See Eaton matter, Dkt. 224 at 11-12).
As discussed above, Plaintiff has demonstrated in this case the same pattern of making duplicative and meritless filings. The Court hereby warns Plaintiff that he cannot continue to engage in these filing practices. Taking into account Plaintiff's pro se status and his lack of legal training, the Court will not issue a filing injunction at this time. However, Plaintiff is strongly cautioned that any further frivolous conduct on his part, including making multiple motions seeking the same relief, may result in the entry of a filing injunction against him. Plaintiff is reminded that while he is entitled to challenge the legal and factual positions taken by Defendants, he may not engage in inflammatory name-calling or make meritless and duplicative filings.
CONCLUSION
For the foregoing reasons, Defendants' motion to dismiss (Dkt. 32) is granted in part and denied in part. Plaintiff's claim asserted against ISO Downes and PO Pestillo for excessive use of force may proceed to discovery. Plaintiff's remaining claims, as well as his claims against defendant Jones and SPO O'Conner, are dismissed, and the Clerk of Court is directed to terminate these defendants from the docket.
Further, Plaintiff's motions for judgment on the pleadings (Dkt. 36; Dkt. 42) are denied without prejudice, and his remaining motions (Dkt. 39; Dkt. 45; Dkt. 47) are denied.
SO ORDERED.