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upholding condition requiring probationer to notify his probation officer of intimate relationships
Summary of this case from Maldonado v. MattinglyOpinion
11 CV 2113 (CM)
08-15-2014
ABDEL-SHAHEED FARRAD MUHAMMAD (PAUL SIMMONS), Plaintiff, v. EVANS, et al., Defendants
MEMORANDUM DECISION AND ORDER GRANTING DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM
:
Plaintiff pro se Abdel-Shaheed Farrad Muhammad (aka, Paul Simmons) brings this civil rights action against Defendants Parole Board Chairwoman Andrea Evans ("Chairwoman Evans"), New York Department of Corrections and Community Supervision Commissioner Brian Fischer ("Commissioner Fischer"), Bureau Chief of the Bronx IV Area Parole Office Jarvis Jenkins ("BC Jenkins"), Parole Officer Deena Royce ("P.O Royce), Senior Parole Officer John McKeon (P.O McKeon), and Parole Board Member Lisa Elavich ("Board Member Elavich").
Defendant P.O. McKeon passed away on November 15, 2011. All claims against P.O. McKeon are dismissed.
Claims brought by Sally L. Thomas-Simmons, Muhammad's wife, have been withdrawn. (Pl. Reply to Defts. Motion to Dismiss, at 3).
Presently before the Court is Defendants' motion to dismiss pursuant to Fed. R. Civ. P 12(bl) and 12(b) (6). Defendants' move in the alternative to dismiss Plaintiffs' complaint pursuant to Fed. R. Civ. P 56 on the grounds of qualified immunity.
Defendants' motion to dismiss is granted.
BACKGROUND
All facts are drawn from the complaint and documents referred to in the Third Amended Complaint (Compl). These facts are assumed to be true for the purposes of the present motion.
Documents that Plaintiff referenced in the complaint may be reviewed for the purpose of this motion to dismiss, as "the court may consider any written instrument attached to the complaint as an exhibit or incorporated in the complaint by reference, as well as documents upon which the complaint relies and which are integral to the complaint." New York Life Ins. Co. v. U.S., 724 F.3d 256, 258 n.1 (2d Cir. 2013) (quoting Subaru Distribs. Corp. v. Subaru of Am., Inc., 425 F.3d 119, 122 (2d Cir. 2005)).
Plaintiff is currently serving a five year term of post-release supervision, following service of a five year sentence upon his plea of guilty to the crime of burglary in the second degree. He asserts claims related to conditions of his post-release supervision, as well as relating to the period during which he was held in prison.
Plaintiff's Allegation That He Was Held in Prison Beyond His "Maximum Term"
On August 3 or 4, 2006, Plaintiff was arrested in connection with the aforementioned burglary. He was held in pre-trial confinement in the custody of New York City Department of Corrections from 2006 until November 29, 2010, when he pleaded guilty to burglary in the second degree. Judge Oliver in Bronx Supreme Court sentenced Plaintiff to a determinate sentence of five years imprisonment, nunc pro tunc from August 4, 2006. (Def.'s Motion to Dismiss, Declaration of Counsel, Exhibit A at 9,11). At the sentencing hearing, Judge Oliver made a recommendation that Plaintiff be released on parole at the earliest legal date. (Id. at 7). That recommendation, of course, conferred no rights on Plaintiff.
Plaintiff's maximum release date - the latest date on which he could be lawfully held on his five year sentence - would have been August 3, 2011, five years after he was first incarcerated for the crime of conviction.
On November 11, 2010, shortly before Plaintiff was sentenced, Plaintiff visited the Legal Aid Office at the Manhattan Detention Center to find out about his release date. (Compl. at 4). The complaint alleges that a Legal Aid "representative" contacted the New York State Department of Correctional Services ("DOCCS") to inform DOCCS that Plaintiff had served a full five years and should be transferred immediately. (Compl. at 4). Plaintiff alleges that Commissioner Fischer responded to this request by causing him to be transferred to Downstate Correctional Facility, located in Fishkill, New York, on December 10, 2010. (Compl. at 7).
In the complaint, Plaintiff Muhammad does not identify the name of the Legal Aid representative who notified DOCCS. However, in his response to Defendants' Motion to Dismiss, Plaintiff Muhammad identifies he spoke with Legal Aid representative Nadine Johnson at The Manhattan Detention Center. (PL.'s Opp. To DEF's Motion to Dismiss, at 1).
On December 14, 2010, Plaintiff alleges that he received a "Legal date computation" from DOCCS that stated that Plaintiff had served 1,539 days in prison, the "maximum term" imposed by the Bronx Supreme Court. (Compl. at 7). Five years in prison (including one leap year, 2008) is actually 1,826 days. I am not required to accept plaintiff's faulty arithmetic as true for purposes of this motion
Plaintiff was ultimately paroled on January 10, 2011, some eight months before his maximum release date. (Compl. at 7).
Plaintiff's Allegation of Assault
Upon his arrival at Downstate Correctional Facility on December 10, 2010, Plaintiff alleges that the prison guards in the receiving area assaulted him because he was walking too slowly; plaintiff walks with a cane, which he needs due to an unspecified "chronic medical condition." (Compl. at 7). Plaintiff alleges that the prison guards took away his cane and removed the orthopedic insoles from his shoes, which caused Plaintiff to fall several times. Eventually, he was placed in the medical ward. (Compl. at 7).
While in the medical ward, Plaintiff—who is an adherent of the Nation of Islam—alleges that he was denied "all Islamic services and ministerial consultation in spite of his numerous requests to see a Minister from his religious community." (Compl. at 7).
Conditions of Plaintiff's Parole
On December 15, 2010, Plaintiff received and signed a form, given to him by P.O. Royce that advised him of the general conditions on which he would be paroled. (Compl. at 7). This form indicated that any special conditions for Plaintiff's parole would be determined by the Parole Board.
On December 21, 2010, Plaintiff received notice of special conditions of his parole. The special conditions here at issue stated: "I will notify my P.O. of all intimate relationships," and "I will not reside with any intimate partner without the prior written permission of [sic] the P.O." (Defts' Motion to Dismiss, Declaration of Lisa Elovich, Exhibit A, at 1).
On or about December 22, 2010, Plaintiff alleges that he met with P.O. Royce, who explained to Plaintiff that the special conditions of his parole prevented him from marrying or living with a female without first receiving written permission from his parole officer. (Compl. at 7). Plaintiff alleges that P.O. Royce stated that these special conditions could be imposed on Plaintiff because her supervisor, P.O. McKeon, and "someone else" from the Parole Board had approved them. (Compl. at 7).
Plaintiff signed the notice indicating that he was aware of the special parole conditions on January 6, 2011. He was released on January 10, 2011. (Compl. at 7).
Once released, Plaintiff was under supervision of the Manhattan II Division of Parole and was assigned to parole officer Fernandez, who is not named as a defendant in this action. (Compl. at 7)
Plaintiff resided in Ward's Island shelter during the period of January 10, 2011 to May 26, 2011, and again from April 12, 2012 to October 8, 2012. (Compl. at 7). While a resident at Ward's Island Shelter, Plaintiff alleges that his religious freedom was restricted because he was prevented from attending religious services, religious study, and assembly of worship.
Despite Plaintiff's special parole conditions, Plaintiff married Sally L. Thomas Simmons without first receiving the parole officer's permission. (Compl. at 8). On or about April 16, 2012, Plaintiff alleges that BC Jenkins ordered that Plaintiff Muhammad not be allowed to live or visit with his wife, Sally Simmons. (Compl. at 8).
Claims Brought By Plaintiff
Plaintiff alleges claims pursuant to 42 U.S.C. § 1981, 42 U.S.C. § 1983, and 42 U.S.C. § 1985 for violation of his First, Eighth, and Fourteenth amendment rights. He contends that: (1) he was assaulted at Downstate Correctional facility when prison guards removed his shoe insoles and cane; (2) he was denied access to Islamic ministry while in the medical ward at Downstate Correctional Facility; (3) he was held for thirty days beyond his conditional release date; (4) he was subjected to special parole conditions relating to his relationships, marriage, and/or cohabitation that violated his right to marry and his religion. Plaintiff further alleges that all named defendants conspired to violate Plaintiff's civil rights.
Defendants move to dismiss the complaint for failure to state a claim on which relief may be granted and for summary judgment on the ground of qualified immunity.
DISCUSSION
I. Standard
In deciding a motion to dismiss pursuant to Rule 12(b)(6), the Court must liberally construe all claims, accept all factual allegations in the complaint as true, and draw all reasonable inferences in favor of the plaintiff. See Cargo Partner AG v. Albatrans, Inc., 352 F.3d 41, 44 (2d Cir.2003). However, to survive a motion to dismiss, "a complaint must contain sufficient factual matter ...to 'state a claim to relief that is plausible on its face.' " Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (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." Id. (citing Twombly, 550 U.S. at 556).
"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the grounds of his entitlement 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 (internal quotations, citations, and alterations omitted). Thus, unless a plaintiff's well-pleaded allegations have "nudged [its] claims across the line from conceivable to plausible, [the plaintiff's] complaint must be dismissed." Id. at 570; Iqbal, 129 S.Ct. at 1950-51.
Although the Court notes that Plaintiff is no stranger to litigation in this Court, see Muhammad v. Catletti, No. 00 Civ. 2525, 2000 WL 1641246, at *1 n. 1 (S.D.N.Y. Oct.31, 2000) (collecting cases), "[a] document filed pro se is [nonetheless] to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). A court must interpret pro se filings "to raise the strongest arguments that they suggest." Harris v. Westchester Cnty. Medical Ctr., No. 08 Civ. 1128, 2011 WL 2637429, at *3 (S.D.N.Y. July 6, 2011) (quoting Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 475 (2d Cir.2006)).
II. New York State Correction Law § 24 Bars This Court From Entertaining Any State Law Claims
To the extent Plaintiff alleges any state law claims, they are dismissed pursuant to Section 24 of the New York State Correction Law.
Section 24 of the New York State Correction Law provides in pertinent part:
(1) No civil action shall be brought in any court of the state, except by the attorney general on behalf of the state, against any officer or employee of the department, which for purposes of this section shall include members of the state board of parole, in his or her personal capacity, for damages arising out of any act done or the failure to perform any act within the scope of the employment and in the discharge of the duties by such officer or employee;
(2) Any claim for damages arising out of any act done or the failure to perform any act within the scope of the employment and in the discharge of the duties of any officer or employee of the department shall be brought and maintained in the court of claims as a claim against the state.
"The Second Circuit has held that the immunity from suit in state court provided to [DOCCS] employees by § 24 extends to suits for tort claims based on state law against [DOCCS] employees in federal court." Brown v. Dep't of Corr. Servs., No. 09 Civ. 949, 2011 WL 2182775, at *9 (W.D.N.Y. June 2, 2011) (citing Baker v. Coughlin, 77 F.3d 12, 14 (2d Cir. 1996)). "By its plain terms, § 24 governs the substantive rights of [DOCCS] officers by conferring upon them an immunity from liability for activities that fall within the scope of the statute." Baker, 77 F.3d at 15. "Accordingly, where state claims would have been dismissed pursuant to § 24 by a New York court, the district court must also dismiss such claims." Brown, 2011 WL 2182775, at *9 (citing Baker, 77 F.3d at 16).
Nothing in Plaintiff's complaint suggests that any of the Defendants were acting outside the scope of their employment. Nor does Plaintiff specify whether he brings his New York State constitutional claims against Defendants in their official capacities, their personal capacities, or both. In the end, it is entirely irrelevant.
To the extent Plaintiff seeks monetary damages from Defendants in their personal capacities, Plaintiff's New York State constitutional claims are dismissed pursuant to N.Y. Correct. Law § 24(1) because Plaintiff does not have standing to bring them. To the extent Plaintiff seeks monetary damages from Defendants in their official capacities, Plaintiff's New York State constitutional claims are dismissed without prejudice pursuant to N.Y. Correct. Law § 24(2); Plaintiff may assert any such claims in the New York Court of Claims.
III. The Eleventh Amendment Bars Claims For Damages Against Defendants In Their Official Capacities
Plaintiff fails to allege whether he brings his Section 1983 claims against Defendants in their official capacities, their individual capacities, or both. However, to the extent Plaintiff seeks monetary damages from Defendants in their official capacities, Plaintiff's Section 1983 claims are barred by the Eleventh Amendment. Will v. Michigan Dep't of State Police, 491 U.S. 58, 71, (1989); Huminski v. Corsones, 386 F.3d 116, 133 (2d Cir.2004).
IV. Plaintiff's Conspiracy Claim Is Dismissed
Plaintiff alleges that "during all times mentioned in the complaint" defendants "separately and in concert" were in a conspiracy "to violate the civil rights of . . .plaintiff[]" and engaged in acts or omissions that were a "deprivation of plaintiff's constitutional rights." (Compl. at 6).
A conspiracy claim under 42 U.S.C. § 1985 does not "apply to all tortious, conspiratorial interferences with the rights of others." Griffin v Breckenridge, 403 U.S. 88, 101 (1971). A plaintiff must plead that defendants undertook a conspiracy "for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges or immunities under the laws." Jews for Jesus, Inc. v. Jewish Community Relations, 968 F.2d 286, 290 (2d Cir. 1992). Furthermore, "a plaintiff must allege some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action.'" Gagliard v. Village of Pawling, 18 F.3d 188, 194(2d Cir. 1994)(quoting Griffin, 403 U.S. at 102); see also Jews for Jesus, 968 F.2d at 290-91.
In evaluating conspiracy claims under the Rule 12(b) (6) standard, complaints "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." Dwares v. City of New York, 985 F.2d at 100 (2d Cir. 1993). Although pro se plaintiffs are entitled to liberal pleading standards, they "cannot completely avoid the pleading requirements of the Federal Rules of Civil Procedure." Murphy v. Sr. Investigator Neuberger, No. 94 Civ. 7421, 1996 WL 442797, at *7 (S.D.N.Y. Aug. 6, 1996) (citing Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). Thus, a pro se plaintiff must make "an effort to provide some 'details of time and place and the alleged effect of the conspiracy." ' Id. (quoting 2A Moore's Federal Practice ¶ 8.17 [6], at 8-109 to 8-110 (2d ed.1992)).
Plaintiff's conclusory statement that Defendants conspired to violate his constitutional rights is devoid of the specificity required to survive a motion to dismiss. Plaintiff's complaint fails to adequately allege that defendants conspired to act premised on class-based animus that is necessary to establish the required element of "invidious discriminatory motive." See Griffin, 403 U.S. at 102. Plaintiff does not plead any facts "supporting a meeting of the minds such that defendants entered into an agreement, express or tacit, to achieve the unlawful end." Web v. Goord, 340 F.3d 105, 110 (2d Cir, 2003); Dwares, 985 F.2d at 100. Plaintiff does not define the time frame or actions of the alleged conspiracy, apart from stating that Defendants conspired with each other "during all times mentioned in the complaint." (Compl. at 6). Plaintiff's single, conclusory statement that defendants conspired to deprive him of his rights is insufficient to plead a claim for conspiracy as a matter of law.
We are now on Plaintiff's Third Amended Complaint in this action. I see no reason to continue to give plaintiff opportunities to plead his claims correctly. The §1985 conspiracy claim is dismissed with prejudice.
V. Plaintiff's Assertion That He was Held Past His Conditional Release Date Fails to State a Claim on Which Relief May Be Granted and Is Dismissed
Plaintiff alleges that this was a violation of his Fourteenth Amendment Due Process rights because he was held ninety-two days beyond what he calls his "date of release." (Compl. at 4).
Plaintiff was sentenced to a determinate term of five years' incarceration, commencing August 4, 2006. His maximum release date was five years later, or August 4, 2011. He was released from prison eight months shy of his maximum release day, on January 11, 2011. He thus fails as a matter of fact to state a claim that he was held beyond his maximum release date.
However, Plaintiff's claim is that his constitutional rights were violated because he was held beyond his "conditional release date" - that is, his maximum release date less his accumulated good time. He claims a constitutional entitlement to have been released at the earliest possible date, consistent with his accumulated good time. For purposes of this motion to dismiss, I will accept as true plaintiff's claim that his release date came after the earliest date at which he could have been released consistent with his accumulation of good time.
The Attorney General argues that plaintiff fails to state a claim because he has no constitutionally recognized right to release prior to his maximum release date. "Under the Due Process Clause, an inmate has a liberty interest in being released upon the expiration of his maximum term of imprisonment." Calhoun v. N.Y. State Div. of Parole Officers, 999 F.2d 647, 653 (2d Cir.1993) (citing Green v. McCall, 822 F.2d 284, 287-90 (2d Cir.1987) (emphasis added)). A prisoner only has a liberty interest in being paroled prior to his maximum release date when the state parole statute creates a legitimate expectation of release. Graziano v. Pataki, 689 F.3d 110, 114 (2d Cir. 2012); see also Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 7(1979). The Attorney General argues that, under New York law, the statutory scheme creates no such expectation, Graziano, 589 F.3d at 114, because it is entirely within the discretion of the Parole Board to determine whether and when a prisoner is eligible for parole. See N.Y. Exec. Law § 259-c.1.; Barna v. Travis, 239 F.3d 169, 171 (2d Cir.2001)).
The Attorney General also moves for dismissal of this claim on the ground of qualified immunity. Qualified immunity shields government officials from civil damages liability unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct. See Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011). Courts may grant qualified immunity on the ground that a purported right was not "clearly established" by prior case law, without resolving the often more difficult question whether the purported right exists at all. Pearson v. Callahan, 555 U. S. 223, 236 (2009). To be clearly established, a right must be sufficiently clear that every "reasonable official would [have understood] that what he is doing violates that right." Anderson v. Creighton, 483 U. S. 635, 640 (1987)). In other words, "existing precedent must have placed the statutory or constitutional question beyond debate." Ashcroft v. al-Kidd, at 2083. This "clearly established" standard protects the balance between vindication of constitutional rights and government officials' effective performance of their duties by ensuring that officials can "'reasonably . . . anticipate when their conduct may give rise to liability for damages.'" Anderson v. Creighton, at 639 (quoting Davis v. Scherer, 468 U. S. 183, 195 (1984)).
Here, the allegation is that plaintiff had accumulated enough good time credits to be released on his conditional release date but was held beyond that date (although not beyond his maximum release date). The Attorney General argues that even if plaintiff had a property or liberty interest in being allowed to take advantage of all the good time he had earned, his right to release on his conditional release date was not an "established" right for qualified immunity purposes. Whether New York State inmates who have accrued the requisite good time credits possess a liberty interest in conditional release is viewed by the Second Circuit as a "thorny" and unsettled question. Doe v. Smith, 221 F. 3d 137 (2d Cir. 2000). In Matter of Hyman v. NYS Division of Parole, 22 A.D. 3d 224 (1st Dept. 2005), the Appellate Division, First Department held that there is "no federal or state constitutional right to be released" on an inmate's conditional release date.
The Attorney General's argument is appealing. The fact is, however, that this claim can be dismissed on a much simpler ground: Muhammad has failed to sue the right people, and the people he has sued do not need the protection of qualified immunity because they were not the people who "held" plaintiff beyond what should have been his release date.
"It is well settled in this Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." Farid v. Ellen, 593 F.3d 233, 249 (2d Cir.2010) (quoting Farrell v. Burke, 449 F.3d 470, 484 (2d Cir.2006)). Indeed, "A complaint based on a violation under § 1983 that does not allege the personal involvement of a defendant fails as a matter of law." Gusler v. City of Long Beach, 823 F.Supp.2d 98, 139 (E.D.N.Y.2011) (citing Rosa R. v. Connelly, 889 F.2d 435, 437 (2d Cir.1989); Alfaro Motors. Inc. v. Ward, 814 F.2d 883, 886 (2d Cir.1987).
The defendants in this case are the Commissioner of the Department of Corrections, the Chairwoman of the New York States Parole Board, several parole officers, and the Bureau Chief of the Bronx IV Department of Parole. None of those individuals was personally involved in holding the plaintiff past his release date. The proper defendant on such a claim would have been his jailers — the wardens of the facility or facilities at which he was being held when he was entitled to be released, those facilities being the Manhattan House of Detention and Downstate Correctional Facility. Neither warden has been named as a defendant. Not a single fact alleged would establish the personal involvement of ANY of the named defendants in any decision to keep plaintiff incarcerated past his conditional release date. Therefore, without regard to whether plaintiff states a claim or whether the correct defendants would be entitled to qualified immunity, the claim that plaintiff was unconstitutionally held past his release date must be dismissed. I will not allow plaintiff to amend his complaint yet again to name new defendants - besides, the statute of limitations expired at the latest in January 2014, more than seven months ago. Therefore, the claim is dismissed with prejudice and without leave to amend yet again.
VI. Plaintiff's §1983 Claim that Parole Restrictions on His Ability to Marry Violated His Constitutional Rights
A. Plaintiff Fails to State a Claim on Which Relief May Be Granted
On January 10, 2011, Plaintiff was released from prison on parole subject to special conditions. These special parole conditions included that Plaintiff agreed he would: (1) notify my P.O. of all intimate relationships; and (2) not reside with any intimate partner without the prior written permission of the P.O. (DEF Motion to Dismiss, Declaration of Lisa Elovich, Exhibit A). Plaintiff was aware of and signed a form acknowledging these special conditions before he was released from prison on January 10, 2011. (Compl. at 7). Plaintiff alleges that the special parole conditions on his ability to marry and enter intimate relationships violated his First and Fourteenth Amendment rights.
The first thing to note is that the only defendants against whom this claim can be asserted, consistent with the "personal involvement" doctrine, are defendant Lisa Elovich (who imposed the conditions) and Bureau Chief Jenkins of Bronx IV Dept. of corrections and Community Supervision (who was responsible for seeing to plaintiff's parole supervision). The other named defendants are not alleged to have had any personal involvement in the imposition or enforcement of these conditions.
Plaintiff argues that the special condition unconstitutionally abridges his freedom to marry in violation of the Fourteenth Amendment to the U.S. Constitution.
"Parolees are, of course, not without constitutional rights." United States ex rel. Sperling v. Fitzpatrick, 426 F.2d 1161, 1164 (2d Cir. 1970). Furthermore, "the decision to marry is a fundamental right." Turner v. Safley, 482 U.S. 78, 95 (1987). However, parolees are subject to "restrictions not applicable to other citizens." Morrissey v. Brewer, 408 U.S. 471, 482 (1972); accord LoFranco v. United States Parole Comm'n, 986 F. Supp. 796, 804 (S.D.N.Y. 1996) ("As a condition of release on parole, however, the Parole Commission may restrict a parolee's access to otherwise lawful activities.").
In Turner, the Supreme Court formulated a standard of review for prisoners' constitutional claims: "when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." 482 U.S. at 95. The Turner court concluded that a prisoner's right to marry while incarcerated was not immune from all regulation; rather, that right is immune from regulation that bears no "valid, rational connection . . . [to] the legitimate governmental interest put forward to justify it." Id. at 89. Although the regulation at issue in Turner was invalidated, the Court made clear that "[t]he right to marry, like many other rights, is subject to substantial restrictions as a result of incarceration." Id. at 95.
While Turner addressed the Government's authority to restrict the rights of incarcerated persons, that authority extends largely to parolees. Morrissey v. Brewer, 408 U.S. 471, 473 (1972) ("[P]arole is an established variation on imprisonment of convicted criminals."). Morrissey held that parole conditions "restrict [parolees'] activities substantially beyond the ordinary restrictions imposed by law on an individual citizen." Id. at 478. "Typically," the Supreme Court noted, parolees "must seek permission from their parole officers before engaging in specified activities, such as . . . marrying." Id. (emphasis added).
Turner provides that prisoners' constitutional right to marry is subject to regulation that is rationally connected to a governmental interest. Morrissey provides that parole is a variation of imprisonment; accordingly, like prison conditions, parole conditions may restrict substantially parolees' activities.
In the Second Circuit, special restrictions on a parolee's rights are upheld where they "are reasonably and necessarily related to the interests that the Government retains after his conditional release." Birzon v. King, 469 F.2d 1241, 1243 (2d Cir. 1972). Birzon regarded as "frivolous" the appellant's argument that a parolee's condition prohibiting him from associating with persons having a criminal record violated his First Amendment freedom of association. Id. The Government's "interest" in the parole context is clear: "when a convict is conditionally released on parole, the Government retains a substantial interest in insuring that its rehabilitative goal is not frustrated and that the public is protected from further criminal acts by the parolee." Id. (emphasis added).
Applying the principles of Turner, Morrissey, and Birzon, the Court finds that the restrictions imposed on Plaintiff were on their face reasonably and necessarily related to the Government's interest in protecting the public from further criminal acts by the parolee and in supervising his activities in an area where he was a repeat offender.
Plaintiff has a history of domestic violence. Protective orders were issued against Plaintiff on behalf of multiple women, one of whom, Mary Ogarro, was his former wife. (Id. at 4). These orders were in effect at the time the Parole Board determined the special conditions of Plaintiff's parole. On October 28, 2005, Plaintiff was convicted on a plea of guilty to Attempted Assault in the Third Degree for charges of domestic violence against his ex-fiance, Margaret Alexander. (Id.) The October 28 conviction stemmed from Plaintiff's arrest and charge with Assault in the Third Degree with Intent to Cause Physical Injury, Stalking in the Fourth Degree (causing fear of material harm to health, safety or property), and Harassment in the Second Degree (physical contact). (Id.)
The following information can be considered on this motion to dismiss because it is all a matter of official court records, of which this court may take judicial notice. Fed. R. Evid. 201(b) (2).
Significantly, the Division of Parole did not prohibit plaintiff from marrying or living with an intimate partner altogether. The exact conditions of his parole (of which the court may take cognizance, since plaintiff relied on them in bringing his complaint) were as follows:
1. Plaintiff could not associate in any way or communicate by any means with Margaret Alexander without the permission of his parole officer. Ms. Alexander had obtained no fewer than three orders of protection against plaintiff, one of which was not due to expire for two years after plaintiff's release date, and plaintiff had previously been convicted of a domestic violence offense in which Ms. Alexander was the victim.
2. Plaintiff was required to participate in domestic violence counseling as directed by his parole officer.(Elovich Decl. Ex. A).
3. Plaintiff was required to notify his parole officer of all intimate relationships.
4. Plaintiff could not reside with any intimate partner without the prior written permission of the parole officer.
Plaintiff was required to abide by these four conditions because he -- by virtue of his history with Ms. Alexander (and with his former wife, Mary Ongarro, who also obtained an order of protection against plaintiff) -- was deemed to present a risk of committing acts of domestic violence, per the New York State Division of Parole "Domestic Violence Manual (Policy and Procedures Manual, Item 9401.07, Elovich Decl. Ex. C). The conditions imposed upon him are all conditions suggested by the Domestic Violence Manual for the purpose of protecting members of the public and allowing the parole officer to monitor parolees who have a history of domestic violence. They did not unconstitutionally prohibit the plaintiff from marrying, as he alleges; they did make his decision to marry the business of his parole officer, which - as the Supreme Court held in Turner -- is anything but unconstitutional.
Because plaintiff urges that the conditions of his parole were unconstitutional, the exact text of those conditions, as well as any policies or procedures pursuant to which they were imposed can be considered by the court on this motion to dismiss for failure to state a claim.
Because the conditions of parole imposed on plaintiff are of the exact same type that the Supreme Court in Turner had no difficulty finding constitutional, he fails to state a claim on which relief may be granted.
B. The Defendant Parole Officers Are Qualifiedly Immune
In the alternative, and even if the plaintiff has stated a claim on which relief could be granted, the defendant Lisa Elovich (who imposed the parole conditions on plaintiff) and any parole officer who enforced those conditions are cloaked with qualified immunity.
The standard for obtaining dismissal on the ground of qualified immunity is set forth above. For our purposes, the important aspects of the doctrine are that it protects "all but the plainly incompetent" state agents and that it cloaks a person with immunity unless "clearly established law" renders the state agent's actions unlawful. Neither condition pertains here.
First, it cannot be said that no reasonable parole officer would have thought it inappropriate or unconstitutional to impose the conditions that were imposed by Ms. Elovich. The State Board of Parole had published policies and procedures that specifically called for the imposition of such conditions on anyone who, like plaintiff, had a history of domestic violence (and plaintiff had an extensive history of domestic violence-type incidents, including a conviction for attempted assault on his fiancee). It cannot be said that every single parole officer in New York would have thought it unreasonable to follow the policies and procedures promulgated by the State Parole Board.
Of course, even policies and procedures cannot immunize patently unconstitutional directives, but no court whose opinions bind this court - not the United States Supreme Court and not the United States Court of Appeals for the Second Circuit - has ever held, squarely or even implicitly, that it violate the constitution and laws of the United States to impose such conditions on parolees who have a history of domestic violence. As a result, the conditions of parole that Ms. Elovich imposed on Mr. Muhammad cannot be said to violate "settled law" as that term is understood in qualified immunity analysis.
Finally, as already noted, the conditions imposed did not create a complete bar to Mr. Muhammad's having an intimate relationship with a woman or marrying her; they simply insured that he could not engage in such behavior without his parole officer's knowledge and permission. That being so, the parole officers could reasonably have understood that the condition passed constitutional muster, notwithstanding the fact that everyone, even parolees, have a constitutional right to marry.
In sum, whether plaintiff managed to state a claim against them or not, the individual Parole Defendants who were involved in either imposing (Elovich) or enforcing (Jenkins) the domestic violence related conditions of parole supervision are entitled to judgment dismissing this claim because they are qualifiedly immune.
For the above reasons, this claim is dismissed with prejudice. To the extent that this disposes of duplicative claims asserted by plaintiff in the action entitled Muhammad v. Jenkins, 12 Civ. 8525, those duplicative claims are dismissed in BOTH actions.
VII. Plaintiff's Eighth Amendment Claim Is Dismissed.
Plaintiff alleges that his Eighth Amendment rights were violated when he was assaulted at Downstate Correction Facility by two unidentified prison guards, who removed his shoe insoles and cane causing him to collapse several times.
To demonstrate an Eighth Amendment violation, a prisoner must show both that (1) his injury was "sufficiently serious," and (2) prison officials acted with "deliberate indifference" to his safety. Farmer v. Brennan, 511 U.S. 825, 834 (1994).
To the extent Plaintiff asserts Eighth Amendment claims for the alleged assault at Downstate Correctional Facility against named defendants P.O. Royce, P.O. McKeon, Board Member Elavich, and BC Jenkins, his claims must be dismissed. P.O. Royce, P.O. McKeon, Board Member Elavich, and BC Jenkins are employees of the New York State Division of Parole. There is no allegation that any parole officer assaulted or injured plaintiff and the Division of Parole is not responsible for the conditions or officers' behavior in New York State Correctional facilities.
To the extent Plaintiff asserts Eighth Amendment claims against Defendants Commissioner Fischer and Chairwoman Evans, employees of the New York State Department of Corrections and Community Supervision, these claims are also dismissed, because plaintiff fails to allege that they were personally involved in the alleged assault.
The personal involvement of a supervisory defendant may be shown by evidence that the defendant:
(1) participated directly in the alleged constitutional violation,Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).
(2) after being informed of the violation through a report or appeal, failed to remedy the wrong,
(3) created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom,
(4) was grossly negligent in supervising subordinates who committed the wrongful acts, or
(5) exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring.
Plaintiff has failed to sufficiently plead any facts to support the supervisory Defendants' personal involvement in the alleged assault; indeed, he has not pleaded any fact that would, if proved, give rise to any inference that they were aware of the alleged assault. Accordingly, Commissioner Fischer's and Chairwoman Evans's motion to dismiss is granted for Plaintiff's §1983 claim for violation of his Eighth Amendment rights.
Plaintiff has had more than ample time to name the individuals who allegedly assaulted him by removing his insoles and taking away his cane. These events necessarily took place more than three years ago, since plaintiff was released from Downstate in January 2011. Therefore, this claim is dismissed in its entirety, with prejudice.
VIII. Plaintiff's §1983 Claim for Violation of his First Amendment Religious Exercise Rights Is Dismissed
Finally, Plaintiff alleges that his First Amendment rights to Free Exercise were violated when he was denied "all Islamic services and ministerial consultation" (Compl. at 7) while he was in the medical ward at Downstate Correctional Facility recovering from the injuries incurred from the alleged assault.
Plaintiff's allegation is insufficient as a matter of law because he fails to allege the duration he spent in the medical ward or the period of time when he was denied access to Islamic services.
Plaintiff is not entitled to Islamic services at every moment, of every day in prison. While "[c]onvicted prisoners do not forfeit all constitutional protections by reason of their conviction and confinement in prison" Bell v. Wolfish, 441 U.S. 520, 545(1979), "[l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system." Price v. Johnston, 334 U.S. 266, 285(1948); see also Pell v. Procunier, 417 U.S. 817, 822 (1974); Wolff v. McDonnell, 418 U.S. 539, 555 (1974). Some limitations on the freedoms of the First Amendment must be expected in the prison context due to the needs of the penal institution, including valid objectives such as deterrence of crime, rehabilitation of prisoners, and institutional security. See Overtson v. Bazzetta, 539 U.S. 126, 131 (2003); Pell v. Procunier, 417 U.S. 817, 822-23 (1974); Procunier v. Martinez, 416 U.S. 396, 412 (1974).
Appropriate deference must be given to the professional judgment of prison officials' when analyzing challenges to prison restrictions that are alleged to inhibit First Amendment interests. See Overton, 529 U.S. at 132; Bell v. Wolfish, 441 U.S. 520, 547(1979). A regulation that impinges on inmates' constitutional rights will be valid if it is reasonably related to legitimate penological interests." Turner v. Sofley, 482 U.S. 78, 89 (1987).
Here, Plaintiff fails plead with sufficient specificity how long he was in the medical unit, so there is no way to assess from the complaint whether he lacked access to Islamic services for a sufficiently long period to render the moratorium on access to religious services facially unreasonable. Therefore, Plaintiff's claim is dismissed - and with prejudice, since once again, we are on the Third Amended Complaint and plaintiff has not yet gotten it right.
Additionally, it does not appear to this court that any of the defendants named in this complaint can be sued on this claim. No facts are alleged to indicate that Commissioner Fischer or Chairwoman Evans had any personal involvement in any lack of Islamic chaplaincy services to individuals who were in the medical unit at Downstate and the rest of the defendants - all involved in the parole system - could not possibly have been involved either in placing plaintiff in the infirmary or in scheduling (or not scheduling) Islamic services in the infirmary. Therefore, this claim is dismissed for lack of personal involvement as against all named defendants.
IX. Plaintiff Sally L Thomas-Simmons's Claim for Relief is Dismissed
In his third amended complaint, a new plaintiff - Muhammad's wife, Sally L Thomas-Simmons - is added. Her claim - asserted not by her, and not by an attorney, but by her husband - is that she was deprived of her marital rights by virtue of the parole conditions unlawfully imposed on her husband.
As noted above, Muhammad's conditions of parole were not unlawful, so Mrs. Thomas-Simmons can plead no viable claim. However, her complaint must be dismissed because she has neither paid any filing fee nor requested in forma pauperis status. The fact that her husband had already filed a complaint arising out of the same facts does not allow Mrs. Thomas Simmons to assert claims in his action; she herself must pay a filing fee, and must either appear on her own behalf (which she does not do) or by counsel (not by her husband, who is not a lawyer). McCray v. County of Dutchess, 10 Civ. 3930 (S.D.N.Y. 2011).
Mrs. Thomas-Simmons' claim is dismissed.
CONCLUSION
For the above reasons, the Third Amended Complaint is dismissed in its entirety as to both plaintiffs, with prejudice and without leave to replead.
This constitutes the decision and order of the court. The Clerk of the Court is directed to remove all pending motions in this action from the court's list of active motions, and to close this case. Dated: August 15, 2014
/s/_________
U.S.D.J. BY ECF TO COUNSEL BY FIRST CLASS MAIL TO PLAINTIFF