LOUIS L. STANTON, United States District Judge

ORDER OF DISMISSAL :

Plaintiff proceeds pro se and in forma pauperis. In his original complaint, Plaintiff asserted claims against judges, prosecutors, defense counsel, and parole officers in connection with his convictions in 2002 and 2017. By order dated November 13, 2020, the Court dismissed Plaintiff's complaint but granted him leave to replead claims against his parole officers that were not inconsistent with his conviction.

Plaintiff filed an amended complaint on November 24, 2020, and then filed a second amended complaint on December 11, 2020. (ECF Nos. 9, 11.) Plaintiff's second amended complaint supersedes the amended complaint, and the Court treats the second amended complaint as the operative complaint. For the reasons set forth below, the Court dismisses the operative complaint.

STANDARD OF REVIEW

The Court must dismiss an in forma pauperis complaint, or any portion of the complaint, that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); see Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must also dismiss a complaint when the Court lacks subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3).

While the law mandates dismissal on any of these grounds, the Court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the "strongest [claims] that they suggest," Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original). But the "special solicitude" in pro se cases, id. at 475 (citation omitted), has its limits - to state a claim, pro se pleadings still must comply with Rule 8 of the Federal Rules of Civil Procedure, which requires a complaint to make a short and plain statement showing that the pleader is entitled to relief.

Under Rule 8, a complaint must include enough facts to state a claim for relief "that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible if the plaintiff pleads enough factual detail to allow the Court to draw the inference that the defendant is liable for the alleged misconduct. In reviewing the complaint, the Court must accept all well-pleaded factual allegations as true. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). But it does not have to accept as true "[t]hreadbare recitals of the elements of a cause of action," which are essentially just legal conclusions. Twombly, 550 U.S. at 555. After separating legal conclusions from well-pleaded factual allegations, the Court must determine whether those facts make it plausible - not merely possible - that the pleader is entitled to relief. Id.

BACKGROUND

The following allegations are from Plaintiff Tarence Kirkland's second amended complaint and the exhibits attached to it. On December 16, 2002, Plaintiff pleaded guilty to statutory rape in the second degree, and he was sentenced on April 7, 2003. After being incarcerated for several years for this conviction, Plaintiff was released to parole on May 4, 2006, and he went immediately to the shelter where he had been directed to stay.

The following day, Plaintiff's mother was driving him to report to parole, when they stopped at her house. Plaintiff's parole officer Lorraine Pagan called the house, and learned that Plaintiff was at his mother's residence in the presence of his minor sister and his daughter, which was a violation of the special conditions of his parole. Parole Officer Pagan, who is named as a defendant in this action, directed Plaintiff to wait for her at the house. (ECF 11 at 12.) Plaintiff was charged with a parole violation, and he eventually pleaded guilty to violating a special condition of parole, with a delinquency date of May 5, 2006. He was incarcerated at Westchester County Jail for 173 days, from May 5, 2006, until October 24, 2006. The Administrative Law Judge presiding over the final parole revocation hearing recommended that Plaintiff's parole be revoked but that he be restored to parole supervision.

Plaintiff attaches to his complaint a copy of the transcript of his 2006 parole revocation hearing. The transcript states that attorney Stephen Filler was appointed to represent Plaintiff and that Betty Kyle, who is named as a defendant in this action, represented the New York State Division of Parole.

In 2015, Plaintiff was arrested on narcotics charges. A jury in the County Court of the State of New York, Westchester County, convicted Plaintiff on July 13, 2017, of two counts of sale of narcotics in the third degree. At the sentencing hearing, defense counsel raised two arguments why Plaintiff should not be deemed a second felony offender. First, counsel argued that at the time of Plaintiff's 2002 conviction for statutory rape, it was not classified as a violent felony; the fact that it was reclassified as a violent felony in 2015, long after Plaintiff's conviction, should not affect the analysis. Second, the sentencing enhancement should not apply because more than ten years had passed between the 2003 sentencing on Plaintiff's statutory rape conviction and the commission of the drug offense in 2015; counsel argued that the 173-day period that Plaintiff was incarcerated on the parole revocation charges did not toll the running of the 10-year period. In addition to defense counsel's arguments, Plaintiff testified at his 2017 sentencing that he was not present at the October 4, 2006, final parole revocation hearing, and that no counsel had been appointed for him. The parties agreed at the sentencing hearing that if that were true, no tolling of the 10-year period would apply.

Judge Anne Minihan sentenced Plaintiff for the 2017 narcotics conviction, and she found that he qualified as a second felony offender. She rejected defense counsel's first argument on the ground that the relevant issue was whether Plaintiff had a prior conviction that qualified at the time of his current sentencing as a violent felony offender. She also found that, applying tolling rules, Plaintiff's earlier felony conviction was within the ten-year period for the enhancement to apply. Judge Minihan explicitly rejected Plaintiff's testimony that he did not have a final parole revocation hearing in 2006, based on the transcript that indicated that he was present at the 2006 parole revocation hearing and gave sworn testimony. (ECF 11 at 29.) Judge Minihan sentenced Plaintiff, as a second felony offender, to six years' incarceration on each count, to run concurrently, and one and a half years' post-release supervision.

Plaintiff contends that Parole Officer Pagan's conduct in 2006, "affect[s him] at the present time because they use[d] this lie" to increase his 2017 sentence. (Id. at 35.) Plaintiff names as defendants in the second amended complaint the New York State Division of Parole, Parole Officer Pagan, and Parole Revocation Specialist Betty Kyle.

DISCUSSION

A. New York State Division Of Parole

As set forth in the Court's prior order, Plaintiff's § 1983 claims against the New York State Division of Parole (DOP) are barred by the Eleventh Amendment. "[A]s a general rule, state governments may not be sued in federal court unless they have waived their Eleventh Amendment immunity, or unless Congress has abrogated the states' Eleventh Amendment immunity . . . ." Gollomp v. Spitzer, 568 F.3d 355, 366 (2d Cir. 2009). "The immunity recognized by the Eleventh Amendment extends beyond the states themselves to state agents and state instrumentalities that are, effectively, arms of a state." Id. New York has not waived its Eleventh Amendment immunity to suit in federal court, and Congress did not abrogate the states' immunity in enacting 42 U.S.C. § 1983. See Trotman v. Palisades Interstate Park Comm'n, 557 F.2d 35, 40 (2d Cir. 1977). Because the New York State DOP is an arm of the state, Plaintiff's claims against the DOP are dismissed based on Eleventh Amendment immunity. 28 U.S.C. § 1915(e)(2)(B)(iii).

B. Parole Officers

Plaintiff sues DOP employees Pagan and Betty Kyles. First, as employees of the State of New York, the Eleventh Amendment bars any claims for damages against these defendants in their official capacities. See Gollomp, 568 F.3d at 366 (holding that Eleventh Amendment applies to claims against state agents).

Moreover, Plaintiff's individual-capacity claims against Defendants Pagan and Kyles for their conduct in 2006 are time barred. The statute of limitations for § 1983 claims is found in the "general or residual [state] statute [of limitations] for personal injury actions." Pearl v. City of Long Beach, 296 F.3d 76, 79 (2d Cir. 2002) (quoting Owens v. Okure, 488 U.S. 235, 249-50 (1989)). In New York, that period is three years. See N.Y. C.P.L.R. § 214(5). Section 1983 claims generally accrue when a plaintiff knows or has reason to know of the injury that is the basis of the claim. Hogan v. Fischer, 738 F.3d 509, 518 (2d Cir. 2013).

An intentionally false report of a parole violation, directly causing the loss of liberty, can state a cause of action for deprivation of a parolee's constitutional rights. See Taylor v. Sullivan, 980 F. Supp. 697, 704-05 (S.D.N.Y. 1997), aff'd, 166 F.3d 1201 (2d Cir. 1998). Plaintiff knew about Defendants allegedly false report that he had violated his parole in 2006, when he was taken into custody at Westchester County Jail and suffered the loss of his liberty. The three-year limitations period for Plaintiff's § 1983 claims against Pagan and Kyle thus had long since expired when Plaintiff filed this complaint in 2020.

Because the failure to file an action within the limitations period is an affirmative defense, a plaintiff is generally not required to plead that the case is timely filed. See Abbas v. Dixon, 480 F.3d 636, 640 (2d Cir. 2007). Dismissal is appropriate, however, where the existence of an affirmative defense, such as the statute of limitations, is plain from the face of the pleading. See Walters v. Indus. and Commercial Bank of China, Ltd., 651 F.3d 280, 293 (2d Cir. 2011) ("[D]istrict courts may dismiss an action sua sponte on limitations grounds in certain circumstances where the facts supporting the statute of limitations defense are set forth in the papers plaintiff himself submitted.") (internal quotation marks and citation omitted); Pino v. Ryan, 49 F.3d 51, 53 (2d Cir. 1995) (affirming sua sponte dismissal of complaint as frivolous on statute of limitations grounds).

Plaintiff argues that "they use[d] this lie," that is, the 2006 parole violation, to increase his 2017 sentence. (ECF 11 at 35.) As set forth in the Court's prior order, "when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated." Heck v. Humphrey, 512 U.S. 477, 487 (1994). Plaintiff cannot proceed with claims that Defendants' wrongful actions in 2006 caused his 2017 sentence enhancement because success on such a § 1983 claim would impugn both his 2006 parole revocation and his 2017 conviction and sentence, neither of which has been invalidated. Plaintiff's § 1983 claims against Defendants Pagan and Kyle must therefore be dismissed as time-barred and based on Heck's favorable termination requirement.

C. Leave To Replead

District courts generally grant a pro se plaintiff leave to amend a complaint to cure its defects, but leave to amend may be denied if the plaintiff has already been given an opportunity to amend but has failed to cure the complaint's deficiencies. See Ruotolo v. City of New York, 514 F.3d 184, 191 (2d Cir. 2008); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). Because the defects in Plaintiff's amended complaint cannot be cured with a further amendment, the Court declines to grant Plaintiff another opportunity to amend.

CONCLUSION

The Clerk of Court is directed to mail a copy of this order to Plaintiff and note service on the docket. Plaintiff's second amended complaint, filed in forma pauperis under 28 U.S.C. § 1915(a)(1), is dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), (iii). SO ORDERED. Dated: February 18, 2021

New York, New York

/s/_________

Louis L. Stanton

U.S.D.J.