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dismissing due process claim where "Plaintiff ha[d] not alleged what harm, if any, flowed from inclusion of the allegedly false information" in parole records
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01 Civ. 8534 (SAS)
December 27, 2002
Carrie Chandler Pena, New York, New York, Plaintiff, Pro Se.
Lisa E. Fleischmann, Assistant Attorney General, New York, New York, For Defendants.
OPINION AND ORDER
Carrie Chandler Pena, proceeding pro Se, brings this action pursuant to section 1983 of Title 42 of the United States Code ("section 1983") to redress alleged violations of her constitutional rights under the First, Fourth, Eighth, Ninth and Fourteenth Amendments. Defendants have moved to dismiss the action for lack of subject matter jurisdiction and for failure to state a claim upon which relief may be granted. See Fed.R.Civ.P. 12(b)(1) and (6). For the reasons stated herein, defendants' motion is granted in part and denied in part.
I. BACKGROUND
A. Plaintiff's Allegations
Plaintiff alleges various violations of her constitutional rights arising from defendants' supervision of her while on parole. On March 12, 1981, plaintiff was convicted of attempted murder, conspiracy, assault and criminal possession of a weapon and was sentenced to a five to fifteen-year prison term. ¶¶ 134-135. After serving the minimum five year term, plaintiff was released to parole supervision on February 28, 1986. ¶ 136.
Citations to "¶___" are to paragraphs in plaintiff's Second Amended and Supplemented Complaint.
Plaintiff's first complaint involves the inadequacy of notes taken by Parole Officer Raymond Diaz. According to plaintiff, Officer Diaz failed to maintain accurate and complete Chronological Entries ("Chron Notes"), which are written records containing information pertaining to and/or received from parolees. ¶¶ 33-104. In general, plaintiff claims that Officer Diaz failed to record: (1) her address or telephone number; (2) no negative police contact; (3) no use of drugs; and (4) steady employment substantiated with earnings statements. ¶¶ 40-46.
In particular, plaintiff contends that on January 22, 1997, she informed Officer Diaz that she had worked at a law firm under the name of Amy Cabral and that she would provide him with an earnings statement on her next report date. ¶¶ 47-49. The Diaz Chron Notes reflect that plaintiff's employment was "unverified" and that she had a "grandiose demeanor." ¶¶ 51-53. When she subsequently reported to Officer Diaz on February 19, 1997, she admitted she no longer worked at the law firm but gave him three pay statements verifying her prior employment. ¶ 54. The Diaz Chron notes did not reflect this employment verification and instead labeled plaintiff as "unemployed." ¶ 55-56. On March 19, 1997, plaintiff told Officer Diaz that she had obtained employment with two employment agencies, ¶ 57, 59, but Officer Diaz did not record this information. ¶ 62. On April 10, 1997, Officer Diaz made an unannounced visit to plaintiff's home at which time she informed him that she would be starting a new assignment with another employment agency. ¶¶ 65, 70. Officer Diaz' s Chron Notes describe his attempt to confirm plaintiff's employment as "in vain" and do not include information regarding plaintiff's new employment. ¶¶ 81, 85. On April 16, 1997, plaintiff gave Officer Diaz two earnings statements which are not. reflected in his Chron Notes. ¶¶ 86-89. Officer Diaz's May 7, 1997 and June 18, 1997 Chron Notes similarly fail to include information regarding plaintiff's verification of employment. ¶ 95, 103.
On April 16, 1997, plaintiff was ordered to provide a urine sample for drug testing. ¶ 90. Diaz's Chron Notes do not record the results of that testing. ¶ 91. On June 18, 1997, Officer Diaz again asked plaintiff to provide a urine sample but again the test results were not included in his Chron Notes. ¶¶ 97-99. Plaintiff claims that Officer Diaz's failure to include information in his Chron Notes, including the results of drug testing, violated plaintiff's right to due process of law under the Fourteenth Amendment.
In addition to information omitted from Diaz's Chron Notes, plaintiff claims that her parole file contains "rap sheets" for Alma Pearsall and Gail Wilson, twd individuals with different NYSID numbers. ¶ 107. The Wilson rap sheet contains a 1974 arrest for petit larceny which plaintiff disavows. ¶¶ 110-111. The Pearsall rap sheet contains four prostitution convictions dating back from 1969; a 1972 conviction for sexual deviation in a public place; and a 1992 convictidn for criminal possession of a controlled substance (marijuana). Plaintiff claims she has never been arrested for prostitution and otherwise denies any involvement in Pearsall's crimes. ¶¶ 114-115. Plaintiff states that she did not provide the Wilson or Pearsall rap sheets to the Parole Division and believes they were provided by her ex-husband, Pearsall's brother, in 1995. ¶¶ 117-119. Plaintiff contends that she did not know that the Wilson and Pearsall rap sheets were included in her file, ¶ 120-121, and that although defendants had actual or constructive knowledge of these rap sheets, they did not inform plaintiff of the rap sheets, nor did they question her as to the offenses contained therein. ¶¶ 124-125. This concealment by defendants allegedly violated plaintiff's right to due process under the Fourteenth Amendment. Plaintiff claims to have learned of the rap sheets on April 21, 2002, when they were produced in connection with an Article 78 proceeding brought in Albany County Court, New York. ¶ 132.
Plaintiff also complains that several of the defendants imposed unreasonable curfews on her. In September 1995, Parole Officer James Kelly began to supervise plaintiff. ¶ 151. Shortly thereafter, as a special condition of parole, he and Supervising Parole Officer Palumbo imposed a curfew requiring plaintiff to be home between 10:00 p.m. and 7:00 a.m. seven days a week (the "Kelly curfew"). ¶ 166. Plaintiff believes the curfew was imposed not because she had been convicted of a violent crime but because Officer Kelly was under the impression that plaintiff had been convicted of prostitution based on the Pearsall rap sheet. ¶ 157-158. The curfew was permanently lifted on September 29, 1996. ¶ 172. Plaintiff claims that the special condition imposing the curfew was not signed by Officer Palumbo, thus violating her rights to procedural due process. ¶ 208-209.
On December 4, 1997, plaintiff's parole supervision was transferred from Officer Kelly to Officer Diaz. ¶ 178. On April 16, 1997, Officer Diaz imposed a curfew requiring plaintiff to remain at home from 11:00 p.m. until 7:00 a.m., Monday through Friday (the "Diaz curfew"). ¶¶ 179-180. This curfew remained in effect until plaintiff completed her parole on August 16, 2000. ¶ 190. Plaintiff was not given a reason for the curfew and believes it was imposed because of the prostitution convictions contained in the Pearsall rap sheet. ¶ 184-186. Plaintiff contends that the curfew imposed by Officer Diaz was not signed or initialed by Supervising Parole Officer Rodhelle Ormon, which again violated her rights to procedural due process. ¶¶ 197-198.
On September 17, 1997, plaintiff met with Officer Elwood Fisher to discuss a previous request made to Brion D. Travis that her parole supervision be transferred from Officer Diaz and that her curfew be lifted. ¶ 212. Offker Fisher denied plaintiff's request. ¶ 215. Plaintiff also claims that Officer Travis authorized the continuing violation of her constitutional rights by not lifting the Diaz curfew or halting further drug testing. ¶¶ 347-350. Travis's refusal to lift the Diaz curfew and halt further drug testing is claimed to have violated plaintiff's First, Fourth, Eighth and Fourteenth Amendment rights.
Plaintiff claims that Officer Travis is liable for the wrongful imposition of the curfews and the inappropriate drug testing for a number of reasons. First, plaintiff claims that Officer Travis authorized the curfew without first filing a rule or regulation with New York's Secretary of State stating that the Parole Division is imposing curfews as a condition of parole. ¶ 356. Consequently, plaintiff claims, Officer Travis was without authority to enact the "Curfew Policy." ¶ 358. Second, plaintiff claims that Officer Travis had no legislative authority to enact a policy that curfews be imposed upon parolees as a standard condition. ¶¶ 367-372. According to plaintiff, the New York State Legislature has exblusively empowered the Board of Parole to promulgate standard conditions of parole, and the Board has not held that curfews are a standard condition. ¶¶ 367, 369. Third, plaintiff claims that Officer Travis "permits Parolees to be drug tested on a `random' basis where there is no drug conviction, no authorization from the Board of Parole requiring drug testing as an additional condition of parole, and no articulated probable cause or reasonable suspicion." ¶ 388. Officer Travis allegedly violated plaintiff's constitutional rights under the First, Eighth, Ninth and Fourteenth Amendments by taking these various actions.
Plaintiff next complains that Officer Diaz falsified official state records. Plaintiff claims that a Diaz Chron Note indicates that Officer Diaz received a telephone call on December 7, 1996, from a person named "DePhillips" of the Bureau of Criminal Investigation ("BCI") regarding allegations by plaintiff's ex-husband that plaintiff may have been involved in fraudulent activity. ¶¶ 219-221. According to plaintiff, there is no Detective DePhillips at BCI. ¶ 243. Plaintiff also claims that on March 20, 1997, Officer Diaz faxed documents to Detectives Atero, Lugo and Croce of the NYPD but that the Chron Notes do not indicate what documents were faxed. ¶¶ 236-237. Plaintiff claims that there are no detectives by those names. ¶¶ 244-247. Accordingly, Officer Diaz's alleged falsification of plaintiff's parole records violated her procedural and substantive rights under the Fourteenth Amendment.
Next are plaintiff's allegations of unreasonable drug testing in violation of the Fourth Amendment's prohibition against unreasonable searches and seizures. Although plaintiff claims she was never convicted of a drug offense, ¶ 252, both Officer Diaz and Officer Roslyn Ligon tested her for heroin and cocaine use. ¶¶ 257, 267. These tests occurred on June 18, 1997 and November 12, 1997. Id.
Plaintiff also claims she was denied early discharge from parole when she became eligible on December 29, 1997. ¶ 282. Plaintiff concedes that the decision to grant early discharge from parole is discretionary. ¶ 278. At plaintiff's request, Officer Ligon prepared a Discharge Recommendation dated October 1, 1998. ¶¶ 285-285. With regard to employment, Officer Ligon's Discharge Recommendation stated that plaintiff worked at temporary agencies "on occasion." ¶ 290. The Recommendation then noted that plaintiff was referred twice for mental evaluation but was "adamant about not needing treatment." ¶ 293. In the Summary of Supervision section of the Recommendation, Officer Ligon wrote: "The subject appears to be anti-social and is often confrontational and does not appear to be a good candidate for Early Discharge at this time." ¶ 295.
Shortly thereafter, Officers Ormon and Fisher approved the Discharge Recommendation denying plaintiff early discharge of parole supervision even though plaintiff had no opportunity to contest Officer Ligon's findings. ¶¶ 298-300. In so doing, Officer Fisher stated that plaintiff is "confrontational and uncooperative with mental hygiene." ¶¶ 299. Commissioner Platt denied plaintiff's application for early parole release on the basis of her "[n]egative response to requirements of community supervision as per parole officer statements negates early discharge." ¶ 301. As an alleged consequence, plaintiff remained under parole supervision for 33 additional months. ¶ 301. Denial of early release from parole allegedly violated plaintiff's First, Eighth, Ninth and Fourteenth Amendment rights.
Plaintiff claims that the Discharge Recommendation was false in the following respects: Officer Ligon did not meet with plaintiff at her home, ¶ 306; plaintiff worked more frequently than "on occasion" and earned more than the $150.00 to $225.00 per week, ¶ 308; plaintiff did not refuse to attend mental health treatment, ¶ 318; Officer Ligon failed to disclose that she refused to help plaintiff with her eviction for non-payment of rent, ¶ 320; and Officer Ligon failed to disclose that plaintiff's neighborhood confrontations stemmed from allegations by a neighbor that plaintiff was involved in prostitution. ¶ 325. Plaintiff states that she did not become aware of the circumstances surrounding the denial of her Early Discharge application until July 1999. ¶ 330.
Finally, plaintiff claims that Officer Johnson released her medical information without authority. According to plaintiff, the Parole Division is prohibited by law from disclosing a parolee's medical or psychiatric records. ¶ 380. Despite this prohibition, plaintiff claims that defendant John Johnson provided a copy of a Medical Evaluation prepared by Dr. Robert H. Berger ("Berger Evaluation") to United States Probation Officer Gregory Carter on June 15, 1999. ¶ 381. Because plaintiff did not give Johnson permission to provide the Berger Evaluation to the United States Probation Department, its disclosure allegedly violated plaintiff's privacy rights under New York law as well as her constitutional rights under the Ninth and Fourteenth Amendments. ¶¶ 384-385.
B. Plaintiff's Causes of Action
On the basis of these allegations, plaintiff has brought seventeen causes of action, numbered one through ten and twelve to eighteen. Plaintiff's first cause of action, for failure to maintain complete and accurate parole records, contains two claims. The first claim is against Officer Diaz for his allegedly incomplete Chron Notes for the period January 22, 1997 through June 18, 1997. ¶¶ 30-104. Plaintiff states that Officer Diaz denied her substantive and procedural due process under the Fourteenth Amendment by failing to maintain complete and accurate parole records. ¶ 128. Plaintiff alleges that she did not become aware of Officer Diaz's inadequate record keeping until July 1999, when she received a portion of her parole file in connection with a modification hearing. ¶ 131. Plaintiff's second claim, against all defendants except Commissioner Platt, is for the wrongful inclusion of the Pearsall and Wilson rap sheets in her parole file. ¶¶ 105-133. In addition to failing to maintain proper parole records, plaintiff alleges that defendants' concealment of the rap sheets from her "was so arbitrary and capricious and an abuse of administrative discretion that it violated [p]laintiff's rights to due process of law under the Fourteenth Amendment." ¶ 127. In a similar vein, plaintiff's seventh cause of action is against Officer Diaz for the alleged falsification of official state records, namely his Chron Notes. The alleged falsification resulted, inter alia, from the inclusion of information from an individual known as "DePhillips" from BCI. ¶¶ 216-251. On June 30, 2000, plaintiff learned that there is no Detective DePhillips working at BCI. ¶ 242. Plaintiff claims that Officer Diaz violated her Fourteenth Amendment rights by allegedly falsifying her parole records.
A group of claims relate to the allegedly illegal and unreasonable imposition of curfews. The second cause of action, against Officers Kelly and Palumbo, alleges that the Kelly curfew was imposed because of the erroneous belief that plaintiff was involved with prostitution based on information contained in the Pearsall rap sheet. ¶ 158. The third cause of action, against Officers Diaz and Ormon, similarly alleges that the Diaz curfew was imposed for the same reason. ¶ 186. The fourth and fifth causes of action claim that the curfews imposed were illegal because they were not signed by a supervising officer. ¶¶ 195-209. The sixth cause of action is against Officer Fisher for his failure to lift the Diaz curfew. ¶¶ 210-215.
Plaintiff states that these curfews violated many of her constitutional rights. Officer Kelly allegedly violated plaintiff's First, Eighth, Ninth and Fourteenth Amendment rights by imposing a curfew; Officers Diaz and Ormon violated her First Amendments right to freely travel and associate and her Eighth, Ninth and Fourteenth Amendment rights by imposing a curfew; Officers Diaz and Ormon's failure to justify the curfew in writing violated her Fourteenth Amendment rights; Officers Kelly and Palumbo's imposition of a curfew without a writing deprived plaintiff of her due process rights and constructively imprisoned her; and Officer Fisher violated plaintiff's First, Ninth and Fourteenth Amendment rights by refusing to revoke the curfew.
In her fourteenth cause of action, plaintiff contends that Officer Travis's refusal to lift the curfew imposed by Officers Diaz and Kelly despite the fact that the curfew conditions had not been filed' with the Secretary of State or legislatively enacted violated plaintiff's First, Eighth, Ninth and Fourteenth Amendment rights. ¶¶ 342-350. Furthermore, plaintiff's fifteenth cause of action claims that Officer Travis lacked authority to create a curfew policy in violation of her First, Eighth, Ninth and Fourteenth Amendment rights. ¶¶ 351-364. Plaintiff's sixteenth cause of action alleges that Officer Travis was not authorized to impose curfews as a condition of parole, as the imposition of curfews falls within the province of, the New York State Legislature and thus, he violated plaintiff's First, Eighth, Ninth and Fourteenth Amendment rights. ¶¶ 365-377.
Plaintiff's eighth and ninth causes of action are for unreasonable drug testing by Officers Diaz and Ligon. ¶¶ 252-276. Despite not having a drug arrest or conviction, these officers drug tested plaintiff on April 16, June 18 and November 12, 1997. ¶¶ 256-257, 267. Plaintiff claims that such testing, which she suspects was based on the drug conviction contained in the Pearsall rap sheet, violated her Fourth Amendment rights as it was done in the absence of reasonable suspicion. ¶¶ 261-264, 272-275. Plaintiff also complains, in her eighteenth cause of action, that Officer Travis's alleged policy of permitting random drug testing in the absence of probable cause or other circumstances violated her Fourth and Fourteenth Amendment rights. ¶¶ 387-390.
Plaintiff's tenth cause of action is against Officers Ligon, Ormon and Fisher for their alleged violation of her First, Eighth, Ninth and Fourteenth Amendment rights by making untruthful representations in plaintiff's early discharge application. ¶¶ 277-330. Plaintiff also contends, in her twelfth cause of action, that Officers Ligon, Ormon and Fisher violated her First and Fourteenth Amendment rights because their reliance on plaintiff's opinion that she was "adamant about not needing treatment" and their belief that she is verbally "confrontational" allegedly led to the denial of the early discharge application. ¶¶ 331-335. In her thirteenth cause of action, plaintiff alleges that in denying the early discharge application, Commissioner Platt's reliance on a parole officer's statement that plaintiff had a negative response to requirements of community supervision violated her First and Fourteenth Amendment rights. ¶¶ 336-341.
Finally, plaintiff's seventeenth cause of action relates to the allegedly improper disclosure of medical information. ¶¶ 378-386. Because Officer Johnson gave plaintiff's medical evaluation to the U.S. Probation Department without first seeking plaintiff's permission, plaintiff claims that her Ninth and Fourteenth Amendment rights were violated.
II. DISCUSSION
A. Legal Standard
A motion to dismiss should be granted only if "`it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief.'" Weixel v. Board of Educ. of the City of New York, 287 F.3d 138, 145 (2d Cir. 2002) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). At the motion to dismiss stage, the issue "`is not whether a plaintiff is likely to prevail ultimately, but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleading that a recovery is very remote and unlikely but that is not the test.'" Phelps v. Kapnolas, 308 F.3d 180 (2d Cir. 2002) (quoting Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998)). The task of the court in ruling on a Rule 12(b)(6) motion is "`merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.'" Pierce v. Marano, No. 01 Civ. 3410, 2002 WL 1858772, at *3 (S.D.N.Y. Aug. 13, 2002) (internal quotation marks and citations omitted)
When deciding a motion to dismiss pursuant to Rule 12(b)(6), courts must accept all factual allegations in the complaint as true, and draw all reasonable inferences in plaintiff's favor. Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). Courts may not consider matters outside the pleadings but may consider documents attached `to the pleadings, documents referenced in the pleadings, or documents that are integral to the pleadings. See id. at 152-53.
Because "most pro se plaintiffs lack familiarity with the formalities of pleading requirements, [courts] must construe pro se complaints liberally, applying a more flexible standard to evaluate their sufficiency." Lerman v. Board of Elections in the City of New York, 232 F.3d 135, 140 (2d Cir. 2000) (citing Hughes v. Rowe, 449 U.S. 5, 9-10 (1980) and Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). Finally, it is particularly important to read a pro se complaint liberally where, as here, it alleges civil rights violations. See Thompson v. Carter, 284 F.3d 411, 416 (2d Cir. 2002); Morales v. Mackalm, 278 F.3d 126, 130 (2d Cir. 2002) (per curiam)
B. Res Judicata Bars Plaintiff's First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Fourteenth, Fifteenth, Sixteenth and Eighteenth Causes of Action
The doctrine of res judicata consists of two distinct preclusion concepts: "issue preclusion" and "claim preclusion." See Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 77 n. 1 (1984)
Issue preclusion refers to the effect of a judgment in foreclosing relitigation of a matter that has been litigated and decided. This effect also is referred to as direct or collateral estoppel. Claim preclusion refers to the effect of, a judgment in foreclosing litigation of a matter that never has been litigated, because of a determination that it should have been advanced in an earlier suit. Claim preclusion therefore encompasses the law of merger and bar.Id. (citations omitted). The doctrine of res judicata applies to pro se litigants. See Iwachiw v. New York City Bd. of Educ., 194 F. Supp.2d 194, 202 (E.D.N.Y. 2002).
Claim preclusion embodies the concept that a judgment between the same parties resolves all other claims arising out of the same transaction. Under claim preclusion, "a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action." Federated Dep't Storees, Inc. v. Moitie, 452 U.S. 394, 398 (1981) (emphasis added). In applying claim preclusion, "[i]t must first be determined that the second suit involves the same claim — or nucleus of operative fact — as the first suit." Interoceanica Corp. v. Sound Pilots, Inc., 107 F.3d 86, 90 (2d Cir. 1997) (internal quotation marks and citation omitted). `To ascertain whether two actions spring from the same `transaction' or `claim,' [courts] look to whether the underlying facts are "related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage.'" Id. (quoting Restatement (Second) of Judgments § 24(b)
A party may not escape claim preclusion by "splitting [her] claim into various suits, based on different legal theories," Waldman v. Village of Kiryas Joel, 207 F.3d 105, 110 (2d Cir. 2000), because "it is the facts surrounding the transaction or occurrence which operate to constitute the cause of action for res judicata purposes, not the legal theory upon which a litigant relies." Saud v. Bank of New York, 929 F.2d 916, 919 (2d Cir. 1991) (internal quotation marks and citations omitted). Therefore, once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if they are based on different theories or seek different remedies. See Woods v. Dunlop Tire Corp., 972 F.2d 36, 39 (2d Cir. 1992) ("It is this identity of facts surrounding the occurrence which constitutes the cause of action, not the legal theory upon which [plaintiff] chose to form her complaint."). Moreover, the "facts essential to the barred second suit need not be the same as the facts that were necessary to the first suit. It is instead enough that "the facts essential to the second were [already] present in the first.'" Waldman, 207 F.3d at 110-11 (quoting Computer Assocs. Int'l, Inc. v. Altai, Inc., 126 F.3d 365, 369 (2d Cir. 1997)).
On the other hand, collateral estoppel, or issue preclusion, does not depend on a mutuality of the parties. See Parkland Hosiery Co., Inc. v. Shore, 439 U.S. 322, 331 (1979) (permitting nonmutual offensive issue preclusion); Blonder-Tongue Lab, Inc. v. University of Ill. Found., 402 U.S. 313, 350 (1971) (permitting nonmutual defensive issue preclusion). There are, however, four requirements that must be satisfied before issue preclusion can be applied. Accordingly, "[a] party is collaterally estopped from raising an issue in a proceeding if: (1) the identical issue was raised in a previous proceeding; (2) the issue was actually litigated and decided in the previous proceeding; (3) the party had a full and fair opportunity to litigate the issue; and (4) the resolution of the issues was necessary to support a valid and final judgment on the merits." Interoceanica, 107 F.3d at 91 (internal quotation marks and citations omitted)
Plaintiff has brought two previous suits in this Court. In Cabral v. Diaz, Kelly and Ormon, 97 Civ. 9181 (TPG) ("Cabral I"), plaintiff brought suit under section 1983 against Officers Diaz, Kelly and Ormon. See Complaint dated August 19, 1997 ("1997 Complaint"), Ex. A to Defendants' Memorandum of Law in Support of Their Motion to Dismiss the Second Amended Complaint ("Def. Mem."). In addition to accusations of verbal abuse on the part of Officer Diaz, plaintiff claimed that Officer Diaz "failed and refused to maintain [her] parole records. Id. at 4-V. Plaintiff also claimed that Officer Diaz unlawfully subjected her to drug testing on April 16, 1997 and June 18, 1997. See id. at 4F-4J. Additionally, plaintiff complained that on October 10, 1995, Officer Kelly imposed a curfew on her, see id. at 4-T, and that Officer Diaz imposed a similar curfew on April 16, 1997, see id. at 4-L. Plaintiff also complained that Officer Ormon refused to transfer her parole supervision from Officer Diaz. See id. at 4S-4T.
On December 15, 1999, then Chief Judge Thomas P. Griesa dismissed the complaint for failure to state a claim on which relief may be granted, having found that plaintiff failed to allege any violations of her federal or constitutional rights. See Order of Dismissal, Ex. B to Def. Mem., at 2. In so doing, the Court stated:
Plaintiff's allegations regarding defendants' conduct in supervising her parole must be dismissed. It is well established that a prisoner on parole enjoys only "conditional liberty properly dependent on observance of special parole restrictions." Morrissey v. Brewer, 408 U.S. 471, 480 (1972). The essence of parole is that a prisoner is released from incarceration prior to the completion of her sentence on the condition that she abides by certain restrictions for the balance of her remaining sentence. Id. at 477. A state parole board may properly subject plaintiff "to many restrictions not applicable to other citizens." Id. at 482. Thus it is well within the state parole board's discretion to impose on plaintiff conditions she regards as onerous. Conditions of parole are discretionary and not subject to judicial review in the absence of a showing that the board or its agents acted in an arbitrary and capricious manner. Review of conditions of parole are generally matters for state courts. See New York Executive Law (McKinney's 1982).Id. (emphasis added).
In 1999, plaintiff, filed another section 1983 action against Brion D. Travis and Officers Palumbo and Kelly. See Cabral v. Travis, Palumbo and Kelly, 99 Civ. 11986 (TPG) ("Cabral II"). In that action, plaintiff complained that Officers Palumbo and Kelly imposed a curfew after having a conference regarding plaintiff's parole supervision. See Complaint dated Septemer 29, 1999 ("1999 Complaint"), Ex. C. to Def. Mem., at ¶¶ 26-28. Plaintiff claimed that imposition of the curfew constituted an arbitrary and capricious act, and violated her Fourteenth Amendment due process rights. See id. ¶ 58.
On December 13, 1999, Judge Griesa once again dismissed the complaint, having found it to be meritless. See Order of Dismissal, Ex. D to Def. Mem. As in Cabral I, Judge Griesa held that: defendants had acted within their discretion in imposing the complained of conditions; parole conditions are not subject to judicial review absent arbitrary and capricious action; and "review of conditions of parole are generally matters for the state courts." Id. at 2. The Court concluded by stating:
Finally, we note that plaintiff is not a stranger to this Court. She previously filed an action with similar allegations concerning her parole. See Cabral v. Diaz, No. 97 Civ. 9181 (TPG) (S.D.N.Y. Dec. 15, 1997). Plaintiff is warned that this Court will not tolerate the continued filing of meritless complaints. It may result in the issuance of an order pursuant to 28 U.S.C. § 1651 barring the acceptance of any future complaints from plaintiff without first obtaining leave of Court. . . . This warning is necessary in light of the similarities between plaintiff's instant complaint and the prior complaint.Id. at 2-3.
Many of plaintiff's current causes of action are barred by either claim or issue preclusion. For example, plaintiff's second, third, fourth and fifth causes of action, against defendants Diaz, Kelly, Ormon, Travis and Palumbo for the imposition of the Kelly and Diaz curfews, were specifically raised and rejected in Cabral I and Cabral II. Claim preclusion therefore requires that these claims be dismissed. Although Officer Fisher was not a defendant in either of the earlier actions, the imposition of the Diaz and Kelly curfews was clearly upheld in those actions. Accordingly, non-mutual defensive issue preclusion bars plaintiff's sixth cause of action against Officer Fisher for the continued imposition of the alleged illegal curfew. For similar reasons, plaintiff's fourteenth, fifteenth and sixteenth causes of action against defendant Travis are collaterally estopped as they too relate to the imposition of the curfews. Plaintiff's addition of new defendants to these causes of action does not prevent the application of res judicata to the totality of her curfew-related claims. Plaintiff was under a duty to further investigate the full scope of her curfew claims when she brought them in Cabral I and II. See Saud, 929 F.2d at 921 ("[E]ven if [plaintiff] did not know the full extent of the Bank's alleged fraud at the time the Guaranty Action was commenced, his pleadings in that suit demonstrated that he had sufficient information to create a duty of further investigation.").
Plaintiff's allegation that the curfews were based on misinformation obtained from the Wilson and Pearsall rap sheets does not make the instant claims new because her grievance is that the curfews were imposed, not the reason for their imposition.
Plaintiff's claims of unreasonable drug testing were also considered and rejected in Cabral I. Claim preclusion therefore shields Officer Diaz from further suit on this claim while issue preclusion prevents plaintiff from re-litigating the issue by naming new defendants. Accordingly, plaintiff's eighth cause of action against Officer Diaz and her ninth and eighteenth causes of action, against Officers Ligon and Travis, respectively, are precluded.
C. Many of Plaintiff's Claims are Time-Barred
A section 1983 action must be filed within three years of the date on which the plaintiff becomes aware of the alleged injury. See Owens v. Okure, 488 U.S. 235, 251 (1989); Pinaud v. County of Suffolk, 52 F.3d 1139, 1156 (2d Cir. 1995). A section 1983 claim accrues "when the alleged conduct has caused the claimant harm and the claimant knows or has reason to know of the allegedly impermissible conduct and the resulting harm." Duamutef v. Morris, 956 F. Supp. 1112, 1119 (S.D.N.Y. 1997) (internal quotation marks and citations omitted)
Plaintiff filed the instant complaint on September 19, 2001. Because section 1983 actions are subject to a three-year statute of limitations, any claim accruing before September 19, 1998 is time-barred. For example, the first part of plaintiff's first cause of action concerns Officer Diaz's alleged failure to document certain data in his Chron Notes between January 22, 1997 and June 18, 1997, and an undated alleged failure to document home visits with plaintiff. These claims are time-barred as plaintiff was aware, in August 1997, that Officer Diaz allegedly failed to properly maintain his records. See 1997 Complaint at 4-V. Plaintiff's claim that she did not become aware until July 1999 that her records were not maintained as "legislatively required" must be rejected. See ¶ 131.
Plaintiff cannot contend that any of the following time-barred claims fall within the "continuing violation" exception to the limitations period. See, e.g., Cornwell v. Robinson, 23 F.3d 696, 704 (2d Cir. 1994). As plaintiff's complaint makes clear, each of the following claims involves a discrete incident, not an on-going pattern or practice. See id. at 704.
Plaintiff's second cause of action, concerning the Kelly curfew imposed on October 10, 1995 and lifted on September 29, 1996, is likewise time-barred. Plaintiff's claim that the curfew was imposed because of Pearsall's prostitution convictions does not toll the statute of limitations. This allegation — which addresses the reason why the curfew was imposed — is peripheral to plaintiff's true claim — liberty lost as a result of the curfew. Because plaintiff was aware of the restrictions placed on her liberty at the time the curfew was imposed, her claim accrued, at the latest, on September 29, 1996, well before the September 19, 1998 cut-off. For the same reasons, plaintiff's fifth cause of action, in which she contends that Officer Palumbo's failure to sign or initial the Kelly curfew condition violated her constitutional rights is time-barred. Plaintiff's sixth cause of action — where she claims that Officer Fisher failed to lift the Diaz Curfew after meeting with plaintiff on September 17, 1997 — is also time-barred. The same is true for plaintiff's claims regarding the alleged unauthorized approval of curfews by defendant Travis. Plaintiff cannot complain that she did not learn that the curfews were authorized by Travis until approximately January 2000 given that she pled the following in 1999: "In the capacity of chief executive of the Division, Defendant Travis is empowered to prescribe, and does prescribe, the powers and duties of parole officers, and the practices, policies and procedures of the Division and is responsible for the conduct thereof." 1999 Complaint ¶ 5. Obviously, plaintiff was aware of Travis's authority years ago. Accordingly, plaintiff's fifteenth and sixteenth causes of action are time-barred.
Plaintiff's eighth and ninth causes of action, which allege Fourth Amendment violations stemming from Officers Diaz and Ligon's requests that she submit to drug-testing on April 16 and June 18, 1997 and on November 12, 1997, respectively, are time-barred. Again, the gravamen of plaintiff's claim is that she was subjected to drug-testing and not that the Pearsall rap sheet revealed drug convictions which formed the basis for the testing. Additionally, plaintiff's fourteenth cause of action — against Travis for his failure to personally consider plaintiff's July 1997 request to lift her curfew and cease drug-testing — is time-barred. Plaintiff's eighteenth cause of action, wherein she complains that Travis permitted random drug testing to occur in the absence of probable cause, is time-barred, as the drug testing occurred in 1997, more than three years before plaintiff filed the instant complaint.
D. Plaintiff Has No Liberty Interest in the Early Discharge of Parole and Thus Her Tenth, Twelfth and Thirteenth Causes of Action Do Not State a Claim Upon Which Relief May Be Granted
The Parole Board has the discretion to discharge a parolee from supervision if it is ih the best interests of society. See N.Y. Exec. Law § 259-j. In her tenth cause of action, plaintiff claims that Officers Ligon, Ormon and Fisher submitted "materially untruthful representations in plaintiff's early discharge application." Related claims are raised in plaintiff's twelfth and thirteenth causes of action. Plaintiff has failed to identify a constitutionally protected liberty interest. Under the Fourteenth Amendment, an individual may not be deprived of a protected liberty interest without due process. See Hewitt v. Helms, 459 U.S. 460, 466 (1983). Accordingly, the first step is to determine whether plaintiff has a constitutionally protected liberty interest in the early discharge of parole. See Kentucky Dep't. of Corr. v. Thompson, 490 U.S. 454, 460 (1989).
Courts have held that because New York's parole provisions leave the question of whether to grant an inmate parole to the discretion of the Parole Board, a parolee has no entitlement to parole. Thus, a plaintiff has no liberty interest in being paroled. See Barna v. Travis, 239 F.3d 169, 170-71 (2d Cir. 2001) (citing Greenholtz v. Inmates of Nebraska Penal and Corr. Complex, 442 U.S. 1, 11-13 (1979); Boothe v. Hammock, 605 F.2d 661 (2d Cir. 1979)). By analogy, plaintiff 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. Because plaintiff had no liberty interest in early release from parole, this Court need not consider whether plaintiff was afforded due process. Accordingly, plaintiff's tenth, twelfth and thirteenth causes of action are dismissed.
N.Y. Exec. Law § 259-j states:
[I]f the board of parole is satisfied that an absolute discharge from parole or from conditional release is in the best interests of society, the board may grant such a discharge prior to the expiration of the full term or maximum term to any person who has been on unrevoked parole or conditional release for at least three consecutive years.
(emphasis added).
Plaintiff also claims that the denial of her request for early release from parole violated her First, Eighth and Ninth Amendment rights. These claims can be summarily dismissed. As stated earlier, a parolee enjoys only "conditional liberty properly dependent on observance of special parole restrictions." Morrissey, 408 U.S. at 480. Accordingly, plaintiff's First Amendment rights to freedom of travel and association can be abridged by parole restrictions without implicating a constitutional violation. Moreover, parole does not constitute cruel and unusual punishment and, therefore, the denial of early release from parole does not fall within the purview of the Eighth Amendment. Finally, the Ninth Amendment does not confer any independent rights as it states: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
F. Plaintiff's Remaining Causes of Action
1. Inclusion of the Pearsall and Wilson Rap Sheets
The second part of plaintiff's first cause of action alleges that defendants' systematic concealment of the Wilson and Pearsall rap sheets was arbitrary, capricious and constituted an abuse of discretion. ¶ 127. Unlike plaintiff's claim against Officer Diaz for failure to maintain adequate parole records, plaintiff is here alleging a deliberate concealment. Such concealment requires an affirmative act on defendants' part. As such, it was not raised or adjudicated in Cabral I or II. Moreover, plaintiff claims that she did not become aware that the Wilson and Pearsall rap sheets were in her parole file until April 21, 2002, when she received the rap sheets as part of an Article 78 proceeding. ¶ 132. Accordingly, plaintiff's claim regarding the concealment of the rap sheets is not time-barred, nor is it barred by principles of res judicata.
There is, however, another reason why this claim must be dismissed. Plaintiff claims that the inclusion of the Pearsall and Wilson rap sheets violated her rights to due process under the Fourteenth Amendment. It was because of these rap sheets, plaintiff claims, that she was subjected to curfews and drug testing. See, e.g., ¶¶ 158, 185, 262, 273. But, as the Supreme Court has stated, "[p]rocess is not an end in itself. Its constitutional purpose is to protect a substantive interest to which the individual has a legitimate claim of entitlement." Olim v. Wakinekona, 461 U.S. 238, 250 (1983). Because the imposition of special conditions is left to the discretion of the Board of Parole and parole officers, plaintiff does not have a protected liberty interest in being free from special conditions. See 9 N.Y. Comp. Codes R. Regs., tit. 9, § 8003.3 ("A special condition may be imposed upon a releasee either prior or subsequent to release. . . . Each special condition may be imposed by a member or members of the Board of Parole, an authorized representative of the Division of Parole, or a parole officer."). Accordingly, whether the Pearsall and Wilson rap sheets were wrongly included in plaintiff's parole file does not raise a constitutional question — without a protected liberty interest, this Court need not determine whether plaintiff's due process rights were violated. The latter part of plaintiff's first cause of action is therefore dismissed for failure to state a claim.
2. Falsification of Official State Records
Plaintiff's seventh cause of action alleges that Officer Diaz falsified plaintiff's parole records by including information in his Chron Notes from a fictitious detective at BCI. Plaintiff alleges that Officer Diaz knew the information was false and nonetheless included it. ¶ 250. Plaintiff allegedly learned the BCI detective was fictitious when she spoke to Barbara Freeman of the NYPD on June 30, 2000. Plaintiff's claim, which accrued on the date she learned bf the falsehood, i.e., June 30, 2000, is therefore not time-barred, nor is it barred by res judicata.
Plaintiff's claim is barred, however, for reasons similar to those relating to the Wilson and Pearsall rap sheets. Plaintiff has not alleged what harm, if any, flowed from inclusion of the allegedly false information. Rather, plaintiff states, in conclusory fashion, that the falsification of her parole records was so arbitrary, capricious and abusive as to violate her substantive and procedural rights under the Fourteenth Amendment. Plaintiff overlooks the fact that she does not have a due process right to due process. Whether plaintiff received due process is irrelevant without a legitimate claim of an entitlement to protect. Having failed to identify such a protectible interest, plaintiff's seventh cause of action is also dismissed for failure to state a claim.
3. Disclosure of Medical Information
Plaintiff alleges that on June 15, 1999, Officer Johnson provided her medical evaluation to the U.S. Probation Department. ¶ 381. Disclosure of this medical information allegedly violated plaintiff's right to privacy under the Fourteenth Amendment. An individual, even one who is on parole, retains a right to privacy which protects "the individual interest in avoiding disclosure of personal matters." Whalen v. Roe, 429 U.S. 589, 599 (1977). However, the right to privacy is not absolute and "its very existence in a particular case depends on a balancing of the severity of any privacy invasion against the state interest in disclosure." Webb v. Goldstein, 117 F. Supp.2d 289, 296 (E.D.N.Y. 2000).
Defendants argue that disclosure of plaintiff's medical evaluation was perfectly proper in this instance. See Def. Mem. at 19. According to defendants, "[p]arole records, including psychiatric records, `shall be maintained by the Division of Parole and may be made available as deemed appropriate by the chairman for use by the Department of Correctional Services, the Division [of Parole and the board of parole.'" Id. (quoting N.Y. Exec. Law § 259-a(2)). Defendants also argue that "the Division of Parole shall perform functions necessary and proper in furtherance of the objective of maintaining an effective, efficient and fair parole system." Id. (citing N.Y. Exec. Law § 259-a(10)). Given the broad scope of duties afforded the Division of Parole, defendants contend that plaintiff has failed to state a cause of action for the unauthorized disclosure of her medical evaluation.
Defendants' argument misses the mark. Plaintiff has alleged that the Division of Parole is prohibited from disclosing a parolee's medical or psychiatric records under section 259-k of the New York Executive Law. Defendants have responded that section 259-a of the Executive Law permits disclosure of medical records to various entities. What defendants have overlooked is that the United States Department of Probation is not one of the entities listed in the statute as a proper recipient of state parole records. Perhaps there is a valid reason for Officer Johnson's disclosure of plaintiff's "medical evaluation but that would constitute an affirmative defense. Defendants may therefore renew their request to dismiss this cause of action in a summary judgment motion after the necessary discovery has taken place. For now, Officer Johnson's disclosure of plaintiff's medical records is presumptively invalid.
Section 259-k(2) specifically states that "[t]he board shall make rules for the purpose of maintaining the confidentiality of records, information contained therein and information obtained in an official capacity by officers, employees or member of the division or board of parole."
III. CONCLUSION
Plaintiff's Second Amended and Supplemented Complaint now consists solely of plaintiff's seventeenth cause of action for the unauthorized disclosure of her medical records in violation of her Fourteenth Amendment privacy rights. The remaining causes of action are dismissed. A conference is scheduled for January 9, 2003 at 4:00 p.m.