Opinion
5:24-cv-0377 (GTS/TWD)
05-06-2024
ANTHONY PETERKIN, Plaintiff, v. M. MULLIN, et al, Defendants.
ANTHONY PETERKIN Plaintiff, pro se.
ANTHONY PETERKIN Plaintiff, pro se.
REPORT-RECOMMENDATION AND ORDER
THERESE WILEY DANCKS, UNITED STATES MAGISTRATE JUDGE.
I. INTRODUCTION
The Clerk has sent to the Court for review a complaint submitted by pro se plaintiff Anthony Peterkin (“Plaintiff”) brought pursuant to 42 U.S.C. § 1983, Dkt. No. 1, as well as a motion to proceed in forma pauperis (“IFP”), Dkt. No. 2. For the reasons stated below, the Court recommends Plaintiff's complaint be dismissed.
II. IFP APPLICATION
Plaintiff has not paid the filing fee for this action and seeks leave to proceed IFP. Dkt. No. 2. Upon review, Plaintiff's IFP application demonstrates economic need. See id. at 1-2. Therefore, he is granted permission to proceed IFP.
III. BACKGROUND
Plaintiff alleges Senior Parole Officer M. Mullin and Parole Officer M. Delaney (“Defendants”) violated his Sixth and Fourteenth Amendment constitutional rights. Dkt. No. 1 at 3. He contends the Defendants “contributed to extend my Post Release Supervision beyond the Court ordered legally prescribed time.” Id. at 4. Plaintiff sets forth the facts of his case as follows:
Citations to Plaintiff's submissions will refer to the pagination generated by CM/ECF, the Court's electronic filing system. Unless otherwise indicated, excerpts from the record are reproduced exactly as they appear in the original and errors in spelling, punctuation, and grammar have not been corrected.
On 02/18/21 I was released to the Jefferson County New York State Parole Supervision Watertown Sub-Area Office to begin my sentence's end of Post release supervision. After being “MERIT RELEASE” to the parolre officers there. (see, NYS PL 70.45(b) and annexed exhibit. On 8/19/2022 Parole Officer M. Delaney came to my appartment seeking to enter to affect a serch. I would not allow her to enter, stating emphatically that in accordance with law my sentence was ofically terminated. Officer M. Delaney disagreed and wrongly circled incorrect dates upon a DOCCS computer Senior Parole Officer M. Mullin informed me that I would remain upon Parole supervision until my Maximum sentencd date, with reductions in time, in accordanc with the New 30/30 Laws. Ofcourse this was a misapplication of the law and a malicious and willful deceit done under the color of state Law to violate my 14th and 6th. U.S.C.A Rights. This illegal state has continued for 16 months or more. As I still have not been issued an official letter of sentence termination.Id. Plaintiff's claims are brought against Defendant Mullin in his official capacity and Defendant Delaney in her individual capacity. Id. at 2.
The Court notes the lower portion of one line of text contained in Plaintiff's complaint appears to be cut off, see Dkt. No. 1 at 4, however, it is unclear whether any additional text may be missing. Plaintiff also references an “annexed exhibit”, however, no such exhibit appears to have been submitted.
The Court takes judicial notice of the New York State Department of Corrections and Community Supervision (“DOCCS”) public administrative records which indicate Plaintiff was sentenced to an aggregate maximum sentence of ten years following his convictions of criminal possession of a controlled substance in the third degree and criminal sale of a controlled substance in the third degree. Plaintiff's maximum expiration date is listed as May 1, 2023.
See https://nysdoccslookup.doccs.ny.gov/ (site last visited on Apr. 18, 2024); see also, e.g., Opperisano v. P.O. Jones, 286 F.Supp.3d 450, 453 (E.D.N.Y. 2018) (“The Court may take judicial notice of Plaintiff's DOCCS inmate lookup information ....”); DePaul v. Helmer, No. 6:10-CV-00813 (LEK), 2012 WL 967059, at *1 (N.D.N.Y. Mar. 21, 2012) (taking judicial notice of the plaintiff's conviction based on information obtained via the DOCCS Inmate Lookup search page).
The aforementioned DOCCS website further provides “[i]f an inmate has a maximum expiration date, maximum expiration date for parole supervision and/or a post release supervision maximum expiration date, the latest date is controlling.” See also N.Y. Penal Law § 70.45(a)-(b); Livingston v. Annucci, No. 9:18-CV-0803 (JKS), 2021 WL 1091464, at *3 n.5 (N.D.N.Y. Mar. 22, 2021) (“A prisoner conditionally released on parole supervision remains in the legal custody of the DOCCS until the expiration of his full maximum expiration date.”) (citing N.Y. Department of Corrections and Community Supervision Website, Offender Information Data Definitions, http://www.doccs.ny.gov/calendardatadefinitions.html).
Plaintiff avers “I suffer from Mental anguish daily thinking that I could be illegally re arrested any day. This state of perpetual mental anguish has caused physical problems with my health.” Id. at 5. He requests two million dollars in compensatory and punitive damages and asks the Court to “Have NYSDOCCS issue an official letter of sentence termination ....” Id.
IV. STANDARD OF REVIEW
Section 1915 of Title 28 requires a district court to dismiss an IFP complaint if the action is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2)(B)(i)-(iii); Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must also dismiss a complaint, or portion thereof, 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 arguments that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (internal quotation marks and citation omitted, emphasis in original). A claim is frivolous when it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989), abrogated on other grounds Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007); see also Denton v. Hernandez, 504 U.S. 25, 33 (1992) (holding “a finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible”); Livingston, 141 F.3d at 437 (“[A]n action is ‘frivolous' when either: (1) the factual contentions are clearly baseless . . . or (2) the claim is based on an indisputably meritless legal theory.”).
To survive dismissal for failure to state a claim, a complaint must contain a short and plain statement of the claim showing that the pleader is entitled to relief. Fed.R.Civ.P. 8(a)(2). This short and plain statement of the claim must be “plausible on its face.” Twombly, 550 U.S. at 570. “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The statement of the claim must do more than present “an unadorned, the-defendant-harmed-me accusation.” Id. It must “give the defendant fair notice of what the claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555 (internal quotation marks and citations omitted); see also Fed.R.Civ.P. 8(a)(2).
In determining whether a complaint states a claim upon which relief may be granted, “the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citations omitted). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.
Moreover, a court should not dismiss a pro se complaint “without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999) (citation and internal quotation marks omitted). However, an opportunity to amend is not required where “the problem with [the plaintiff's] causes of action is substantive” such that “better pleading will not cure it.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
V. ANALYSIS
Plaintiff's complaint asserts Sixth and Fourteenth Amendment due process clause claims against Defendant Mullin, in his official capacity, and against Defendant Delaney, in her individual capacity. See Dkt. No. 1 at 3 (identifying “14th U.S.C.A. and 6th U.S.C.A.” as the rights violated). For the reasons stated below, the Court recommends Plaintiff's complaint be dismissed with leave to amend.
See also Dkt. No. 1 at 4 (“Each Defendant contributed to extend my Post Release Supervision beyond the Court ordered legally prescribed time.[ ]M.Delaney as Parole Officer and M. Mullin as co-conspirator Senior Parole officer.”).
A. Eleventh Amendment Sovereign Immunity
Under the Eleventh Amendment, “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI. Regardless of the nature of the relief sought, in the absence of the State's consent or waiver of immunity, a suit against the State or one of its agencies or departments is proscribed by the Eleventh Amendment. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). “New York State has not consented to suit in federal court.” Abrahams v. Appellate Div. of Supreme Court, 473 F.Supp.2d 550, 556 (S.D.N.Y. 2007) (citing Trotman v. Palisades Interstate Park Commission, 557 F.2d 35, 38-40 (2d Cir. 1977)), aff'd, 311 Fed.Appx. 474 (2d Cir. 2009). “Further, 42 U.S.C. § 1983 does not abrogate the immunity of the states, including New York.” Id. (citing Quern v. Jordan, 440 U.S. 332, 345 (1979)).
“DOCCS, of which the Division of Parole is now a part, is a New York State agency that has immunity under the Eleventh Amendment.” Ennis v. New York Dep't of Parole, No. 5:18-CV-0501 (GTS/TWD), 2018 WL 3869151, at *4 (N.D.N.Y. June 12, 2018) (citing Rother v. Dep't of Corr. and Community Supervision, 970 F.Supp.2d 78, 89-90 (N.D.N.Y. 2013); Heba v. New York State Div. of Parole, 537 F.Supp.2d 457, 471 (E.D.N.Y. 2007)), report and recommendation adopted, 2018 WL 3862683 (N.D.N.Y. Aug. 14, 2018). “When a defendant is sued in his official capacity, we treat the suit as one against the ‘entity of which an officer is an agent.'” D'Alessandro v. City of New York, 713 Fed.Appx. 1, 8 (2d Cir. 2017) (citing Kentucky v. Graham, 473 U.S. 159, 165-66 (1985)) (additional citations omitted). As a result, “claims for money damages against state officials, including DOCCS officials and parole officers, sued in their official capacities, are . . . barred under the Eleventh Amendment.” Ennis, 2018 WL 3869151, at *4 (citing Graham, 473 U.S. at 167-68) (additional citations omitted).
Plaintiff's claims concerning Defendant Mullin are brought against him in his official capacity as a senior parole officer, therefore, they are barred by the Eleventh Amendment. Accordingly, the Court recommends Plaintiff's claims against Defendant Mullin in his official capacity be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) with prejudice. See, e.g., Partee v. City of Syracuse, No. 5:19-CV-0417 (TJM/DEP), 2019 WL 2617901, at *8 (N.D.N.Y. May 23, 2019) (recommending dismissal of plaintiff's claims against parole officers“ [a]s plaintiff has named the defendant-officers of the Division of Parole in their official capacities and seeks monetary damages, those claims are barred by the Eleventh Amendment.”) (citing Ennis, 2018 WL 3869151, at *4), report and recommendation adopted, 2019 WL 2616954 (N.D.N.Y. June 26, 2019).
B. Failure to State a Claim
Next, Plaintiff has failed to allege facts plausibly suggesting a deprivation of his constitutional rights. Therefore, the Court recommends Plaintiff's remaining claims also be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
While Plaintiff states he told Delaney his “sentence was ofically terminated” sometime prior to August 19, 2022, Dkt. No. 1 at 4, and summarily alleges the Defendants “contributed to extend my Post Release Supervision beyond the Court ordered legally prescribed time,” Dkt. No. 1 at 3, Plaintiff has not pleaded facts indicating when or how any court or other authority either terminated or otherwise modified the length of his sentence. Absent such information it is difficult to analyze Plaintiff's claims. In other words, Plaintiff's conclusory assertion that his Sixth and Fourteenth Amendment constitutional rights were violated has merely “alleged-but it has not shown-that the pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (citing Fed. Rule Civ. Proc. 8(a)(2)) (internal quotations omitted).
Plaintiff's sole factual allegations against Defendant Delaney are that she (1) requested to enter Plaintiff's apartment on August 19, 2022, (2) disagreed with Plaintiff's statement that his sentence had been terminated, and (3) identified allegedly incorrect dates on a DOCCS computer. See id. at 4. Similarly, Plaintiff merely alleges Defendant Mullin told him he remained under parole supervision on some occasion prior to his maximum sentence date. See id. These bare facts do not give rise to a constitutional claim. See Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020) (explaining, to establish liability under § 1983, “a plaintiff must plead and prove that each Government-official defendant, through the official's own individual actions, has violated the Constitution.”) (citing Iqbal, 556 U.S. at 676) (internal quotations omitted).
Accordingly, the Court recommends the complaint be dismissed for failure to state a claim upon which relief may be granted. See Whitfield v. Johnson, 763 Fed.Appx. 106, 107 (2d Cir. 2019) (“A complaint may be dismissed under Rule 8 if it ‘is so confused, ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well disguised.'”) (citing Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995)); see also, e.g., Mitchell v. Annucci, No. 1:22-CV-0613 (DNH/DJS), 2022 WL 7271377, at *3 (N.D.N.Y. Aug. 29, 2022) (recommending dismissal of the plaintiff's § 1983 claim that officials conspired to deny his Fourteenth Amendment right to due process as wholly conclusory), report and recommendation adopted, 2022 WL 4354360 (N.D.N.Y. Sept. 20, 2022); Scheidel v. Kosse, No. 5:09-CV-1277, 2010 WL 3881496, at *3 (N.D.N.Y. Sept. 28, 2010) (dismissing for failure to state a claim plaintiff's complaint which merely alleged wrongdoing in conclusory fashion).
C. Leave to Amend
In deference to Plaintiff's pro se status and out of an abundance of caution, the Court recommends Plaintiff be afforded the opportunity to file an amended complaint to cure the deficiencies identified above. See Gomez, 171 F.3d at 796. The Court advises Plaintiff that should he be permitted to amend his complaint, any amended pleading must comply with Rules 8 and 10 of the Federal Rules of Civil Procedure. Any amended complaint submitted by Plaintiff must also demonstrate that a case or controversy exists between the Plaintiff and the Defendants which Plaintiff has a legal right to pursue. Plaintiff is cautioned that no portion of his prior complaint shall be incorporated into his amended complaint by reference. Of course, Plaintiff may also pursue his claims in state court if appropriate.
VI. CONCLUSION
ACCORDINGLY, it is hereby
ORDERED that Plaintiff's motion to proceed IFP (Dkt. No. 2) is GRANTED, and it is RECOMMENDED that Plaintiff's complaint be DISMISSED WITH LEAVE TO AMEND; and it is further
Although Plaintiff's application to proceed IFP has been granted, Plaintiff will still be required to pay fees that he may incur in the future regarding this action, including, but not limited to, copying and/or witness fees.
ORDERED that the Clerk provide to Plaintiff a copy of this Report-Recommendation and Order, along with copies of the unpublished decisions cited herein in accordance with the Second Circuit decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW . Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72.
If you are proceeding pro se and are served with this Report-Recommendation and Order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Report-Recommendation and Order was mailed to you to serve and file objections. Fed.R.Civ.P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed.R.Civ.P. 6(a)(1)(C).
IT IS SO ORDERED.