Miller v. Smith

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

--------------------------------X

DANIEL MILLER, and MARY MILLER,

Plaintiffs,

MEMORANDUM & ORDER

-against- 21-CV-2949 (JS)(AKT)

ANDRE SMITH, Parole Officer; TANYA

HUBBARD, Senior Parole Officer;

TINA M. STANFORD, Chairwoman, Board

of Parole; NYSDOCCS, ROGER TRAYNOR,

Senior Offender Rehabilitation

Coordinator at Franklin Correctional

Facility; COURTNEY LEONARD, Senior

Offender Rehabilitation Coordinator

at Franklin Correctional Facility;

MS. MORALES, Offender Rehabilitation

Coordinator at Green Haven Correctional

Facility; COUNTY OF NASSAU; JOHN DOE,

Commissioner of the Nassau County

Department of Social Services; ANTHONY

ANNUCCI, Acting Commissioner of DOCCS;

A. RUSSO, Superintendent of the Green

Haven Correctional Facility,

Defendants.

----------------------------------X

APPEARANCES:

For Plaintiff: Steven Bandel, Esq.

Bandel & Bandel, LLP

666 Old Country Road, Suite 306

Garden City, New York 11530

For Defendant

Stanford: Helena Ann Lynch, Esq.

NYS Office of The Attorney General

Nassau Regional Office

200 Old Country Road, Suite 240

Mineola, New York 11501

For Defendant

Annucci: Toni E. Logue, Esq.

NYS Office of The Attorney General

Nassau Regional Office

200 Old Country Road, Suite 460

Mineola, New York 11501

For Defendant

County of Nassau: Liora M. Ben-Sorek, Esq.

Nassau County’s Attorney’s Office

One West Street

Mineola, New York 11501

All Other

Defendants: No appearances.

SEYBERT, District Judge:

On June 22, 2021, the Court issued an Omnibus Order1

wherein it deferred ruling on the portion of the Injunction

Application of Plaintiffs Daniel Miller (“Miller”) and Mary Miller

(“Mary”) seeking preliminary injunctive relief. (See Injunction

Application, ECF No. 3; see also Omnibus Order.) Presently,

before the Court is the deferred portion of the Injunction

Application. The State Defendants, defined infra, object. For

the reasons that follow, the balance of the Injunction Application

is DENIED.2

1 The Court assumes the parties’ familiarity with the terms of

art defined in the Court’s June 22, 2021 Omnibus Order (ECF No.

16), which terms are incorporated herein. The Court further notes

that the Injunction Application was filed in the form of a proposed

Order to Show Cause.

2 In deferring ruling on that portion of the Injunction

Application seeking preliminary injunctive relief, the Court also

stated that it would wait until after the Defendants had had an

opportunity to respond to Plaintiffs’ Injunction Application to

“determine whether it is necessary to schedule a hearing on this

matter.” (Omnibus Order, Conclusion, ¶(C)(2).) “While a hearing

is generally required on motion for preliminary injunction, it is

2

BACKGROUND3

I. Relevant Factual Background

Plaintiffs, Daniel Miller, a level 3 sex

offender who completed his sentence on April

15, 2021 and is awaiting housing that complies

with the restrictions of the Sexual Assault

Reform Act (“SARA”), and his mother, Mary

Miller, assert various constitutional

challenges, pursuant to 42 U.S.C. § 1983, to

certain decisions regarding . . . Miller’s

post-release housing. Miller is currently

housed at the Residential Treatment Facility

(“RTF”) in Green Haven Correctional Facility,

where he is on a waitlist for a shelter

placement that complies with the prohibition

in SARA against certain sex offenders entering

within 1,000 feet of a school.

(State Response, ECF No. 29, at 1; see also Singletary Decl., ECF

No. 31-2, ¶¶5-6 (averring, inter alia, that Miller is on waiting

list for SARA-compliant housing, but that “there are other SARA-

restricted parolees who have been awaiting housing for a longer

not required in all cases, such as cases in which the affidavits

submitted by the parties provide an adequate basis for the court's

decision (and the most significant factors on which the injunction

was based would have remained essentially unchanged by any

additional evidence at a hearing).” Weisshaus v. Cuomo, 512 F.

Supp. 3d 379, 386 n.3 (E.D.N.Y. 2021) (cleaned up) (quoting Hafez

v. City of Schenectady, No. 1:17-CV-0219, 2017 WL 6387692, at *5

(N.D.N.Y. Sept. 11, 2017)). Having considered the Defendants’

responses and Plaintiffs’ reply thereto, “[h]ere, the filings

provide an adequate basis for the Court's decision.” Id.

Accordingly, the Court declines to hold a hearing on this matter.

3 The Court also assumes the parities’ familiarity with the

underlying facts leading to the present case.

3

period of time than he”).) More particularly, Miller had proposed

Mary’s home for his post-release housing placement. However,

Defendant Smith, the parole officer tasked with investigating that

proposal recommended that Miller’s placement in Mary’s home be

denied for two reasons. (See Smith Decl., ECF No. 31, ¶7.) First,

“it would be inappropriate and unsafe for the elderly, disabled

Mary Miller to have as her caretaker someone[, i.e., Miller,] who

had previously stolen $34,000 from her.” (Id. at ¶8; see also id.

at ¶¶4-7). Second, the sexual assault of which Miller was

convicted took place in Mary’s home. (See id. at ¶11 (“[Miller’s]

underage victim was drugged and was physically helpless while . .

. Miller sexually assaulted him in one of the bedrooms in [Mary]’s

home.”).) Thus, Defendant Smith determined “it would be

detrimental to the safety of Mary Miller and of the community to

allow Daniel Miller to reside in the home where he committed sexual

crimes and where he would be the caretaker for his elderly,

disabled mother from whom he had previously stolen $34,000.” (Id.

at ¶14.) Defendant Hubbard, a senior parole office who was Smith’s

supervisor and whose duties included reviewing investigations of

proposed housing placements for individuals on post-release

supervision, including Miller’s placement, agreed with Smith’s

reasoning and ultimate recommendation that Miller not be placed in

4

Mary’s house post-release. (Hubbard Decl., ECF No. 31-1.)

II. Plaintiffs’ Injunction Application and Relevant Procedural

History

When Plaintiffs Miller and Mary commenced this § 1983

civil rights action on May 25, 2021, they also filed their

Injunction Application. Of significance, they sought a mandatory

injunction that would direct:

Defendants STANFORD, SMITH, HUBBARD[,] and

MORALES [(hereafter, collectively, the

“Injunction Defendants”)] to either:

a. IMMEDIATELY Release Plaintiff DANIAL

MILLER and deliver him to the Nassau

County Department of Social Services

for placement in a SARA-Compliant

Shelter or Motel, or, in the

alternative;

b. IMMEDIATELY approve Plaintiff DANIEL

MILLER’s residence with his mother,

Plaintiff MARY MILLER, to care for her

extraordinary medical needs; . . . .

(Injunction Application at 2, ¶1(a)&(b).) The Injunction

Application was supported by several affidavits, including from

Miller and Mary. (See ECF Nos. 3-2 & 3-1, respectively.)

On June 22, 2021, this Court issued the Omnibus Order,

which, among other things (1) denied the Injunction Application to

the extent it sought a TRO (see Omnibus Order at 7-8), and (2)

deferred ruling on the portion of the Injunction Application that

sought a preliminary injunction pending proper notice (see id. at

5

6-7; see also id. at 7 (“[T]he Court defers ruling on this portion

of [the] Injunction Application until such time as Defendants have

received notice of same and have had an opportunity to respond.”)).

Plaintiffs were given until July 9, 2021 to serve the Defendants

with, inter alia, the Injunction Application, and Defendants were

given until July 23, 2021 to show cause why the requested

preliminary injunction should not be issued. (See id. at 8-9.)

On July 2, 2021: (1) Attorney Steven Bandel (hereafter,

“Counsel Bandel”) filed (a) a Notice of Appearance on behalf of

Plainitffs (see ECF No. 17), and (b) proposed summonses for the

Injunction Defendants, as well as for Defendants Taynor, Leonard,

Nunziata,4 Annucci, and A. Russo (hereafter, collectively with the

Injunction Defendants, the “State Defendants”), and County of

Nassau (hereafter, the “County Defendant”; together with the State

Defendants, the “Defendants”) (see ECF No. 18 at 2-3 (“Rider ‘A’

to Summons”) (hereafter, the “Summons Rider”)); and (2) the Court

filed Miller’s June 28, 2021 pro se Motion for Reconsideration,

addressing the denial of his TRO request (hereafter, the

“Reconsideration Motion”). (See ECF No. 19.)

4 Nancy Nunziata is the Commissioner of Social Services, the “John

Doe Commissioner, Nassau County DSS” initially named in

Plaintiffs’ Complaint.

6

On July 6, 2021, summonses were issued for the Defendants

named in the Summons Rider. (See ECF No. 21.) On July 21, 2021,

counsel for the State Defendants advised the Court, inter alia,

that three of the four Injunction Defendants had not yet been

served and inquired whether the Court “wishe[d] to adjourn the

[OSC] response date to allow Plaintiffs additional time to serve

Defendants, at least those named in the [Injunction Application].”

(State Defs.’ Ltr., ECF No. 26, at 1 (“The undersigned inquired of

Plaintiff’s counsel, notifying him that we have no record of

service on several of the Defendants, and in response counsel

stated that Smith and Hubbard have not been served. Counsel

further stated he believed Stanford had been served but he was

awaiting proof. The undersigned then asked if Plaintiffs planned

to serve Smith and Hubbard before Friday[, i.e., July 23, 2021],

and whether Morales had been served, but thus far has received no

response.” (citations omitted)).) “[T]he Court decline[d] to take

such action.” (July 22, 2021 Elec. ORDER.) Notably, Counsel

Bandel never requested any extension of the Court’s service

deadline. (See Case Docket, in toto.) Review of the record

indicates the Injunction Defendants and other Defendants were

served by mail on July 6, 2021. (See Thomas Aff. of Serv., ECF

No. 34-1 (filed July 23, 2021).)

7

III. The Defendants’ OSC Responses

The County Defendant responded to the Court’s OSC

stating that “[b]ecause Daniel Miller is currently committed to

the custody of New York State, specifically its Department of

Corrections and Community Services [(“DOCCS”)], the County of

Nassau has no authority to take a position with respect to his

request for release.” (County Response, ECF No. 28, at 1.) As a

result, the County Defendant “defers” to the State Defendants and

“this Court for a ruling on the preliminary injunction.” (Id.;

see also id. at 2 (“In light of the County’s lack of jurisdiction

to make release determinations over incarcerated individuals, the

County defers to this Court to rule on the preliminary injunction.

And, in the event that Daniel Miller is released, the County defers

to the DOCCS Division of Parole to ensure that whatever housing

placement Miller has is safe for the community.”).)

The State Defendants responded and initially argue that,

as to the Injunction Defendants, Plaintiffs are not entitled to

injunctive relief as against Stanford or Morales since neither of

those defendants have any authority to implement the relief

sought.5 (See State Response, ECF No. 29, at 10 (arguing that

5 The State Defendants also argued that, as of July 22, 2021, the

date of their State Response, there was no record of service upon

Defendants Smith, Hubbard, or Morales. (See State Response at

8

“[a] prerequisite to obtaining injunctive relief is demonstrating

that the defendants have the authority to provide the relief

requested”).)

The State Defendants further contend that “Plaintiffs

fall far short of showing a clear or substantial likelihood of

success on their claims,” i.e., the alleged violation of Miller’s

constitutional rights under the Fourteenth, Eighth, and First

Amendments6 caused by his continued placement in the RTF while

awaiting appropriate and SARA-compliant housing (hereafter, the

“Alleged Offending Circumstance”), and the alleged violation of

Mary’s Fourteenth and First Amendment rights caused by the same

Alleged Offending Circumstance. (Id. at 11.) They advance three

arguments in support of this position.

First, the State Defendants maintain that Plaintiffs

fail to show a likelihood of success in challenging the requirement

that Miller must wait for SARA-compliant shelter placement

10.) Given Plaintiffs’ subsequent filing of the Thomas Affidavit

of Service (see ECF No. 34-1), which has not been disputed, for

purposes of ruling upon the remaining portion of the Injunction

Application only, the Court assumes that proper service has been

effectuated upon the Injunction Defendants. (Cf. Reply Aff., ECF

No. 35, ¶7 (asserting that service upon Defendants Annucci and/or

Stanford “is a proper effectuation of service upon the employees

and agents of DOCCS, including Smith, Hubbard and Morales”).)

6 The Court addresses the Amendment arguments in the order

presented by the State Defendants in their Response memorandum.

9

“because there are other SARA-restricted parolees awaiting shelter

housing that have waiting longer than he” and Miller’s continued

wait in the RTF until he clears the shelter housing waitlist does

not violate his constitutional rights. (See id. at 11; see also

id. at 12 (arguing no violation of Plaintiffs’ Fourteenth Amendment

due process rights); id. at 13 (arguing no violation of Miller’s

Eighth Amendment rights or First Amendment freedom of association

rights); id. at 14 (arguing no violation of Miller’s First

Amendment free speech rights).) Second, the State Defendants

contend that Plaintiffs fail to show a likelihood of success in

challenging the denial of Miller’s post-release placement into

Mary’s home because the denial does not implicate any

constitutional right. (See id. at 15.) Even if it did, however,

the State Defendants assert “the denial would easily pass rational

basis review, the applicable standard” (id.) since this housing

restriction is “tailored to the circumstances of [Miller’s]

convicted offense[s], his criminal history, and his pertinent

characteristics.” (Id. at 16 (internal quotation marks and

citation omitted); see also id. at 17 (“The rejection of the

proposal that . . . Miller reside with his mother is rationally

related to the legitimate government interest of protecting the

public, particularly vulnerable victims such as Miller’s mother[,

10

Mary,] and others like his underage sexual assault victim.”).)

Third, the State Defendants argue that since Mary is only

incidentally affected by the Alleged Offending Circumstance, she

lacks the requisite standing to maintain her § 1983 claims;

therefore, Mary cannot demonstrate a likelihood of success on any

of her claims. (-Se-e- -id-.- at 17-18.)

Moreover, the State Defendants aver that Plaintiffs

cannot meet their preliminary injunction burden since they have

not made the requisite showing of irreparable harm. While

acknowledging that “an actual constitutional injury may cause

irreparable harm,” the State Defendants argue that Plaintiffs

merely allege constitutional injuries, which is insufficient to

convincingly show irreparable harm warranting injunctive relief.

(Id. at 18 (“Because Plaintiffs merely allege constitutional

injuries, and indeed fail to state a plausible claim under any of

the constitutional provisions they cite, they fall far short of

the required convincing showing.”).)

Finally, the State Defendants assert that Plaintiffs are

“not entitled to injunctive relief because the equities and public

interest overwhelmingly favor maintaining the status quo while

Miller, a level 3 sex offender, awaits housing that is appropriate

and SARA compliant.” (Id. at 19.) In supporting this argument,

11

the State Defendants contend that “it would not serve the public

interest to allow Miller to displace another parolee on the

waitlist for shelter housing” as it “would be unfair and would

undermine the orderly cooperative system that DOCCS and county

social service offices have established to ensure fundamental

fairness.” (Id.) They raise the additional argument that “it

would gravely disserve the public interest to create a situation

where Miller would be the primary caretaker for an elderly disabled

woman from whom he previously stole $34,000” or “have opportunities

to lure other victims into the home” where Miller “committed a

violent sexual assault against an underaged physically helpless

victim.” (Id. at 19-20.) Accordingly, the State Defendants ask

that Plaintiffs’ request for a preliminary injunction be denied.

IV. The Plaintiffs’ Reply

In reply, Counsel Bandel states, inter alia:

The brunt of this Reply is to respond to

defendants’ stated position that there should

not be injunctive relief granted in the form

of releasing Mr. Miller to his mother’s

residence or elsewhere due to defendants’

violation of his due process rights in

defendant’s [sic] denial of his residence with

his mother. It is strongly contended that

defendants’ denial of Mr. Miller’s request to

reside with his mother[, Mary,] was arbitrary

and capricious, and there is no rational

relationship to a government interest.

12

(Reply Aff., ECF No. 35, ¶4.)7 Indeed, Plaintiffs do not address

Miller also being placed on a waiting list for appropriate post-

release shelter housing. (See id., in toto.)

While acknowledging that their Fourteenth Amendment due

process claims are subject to the rational basis standard of

review, Plaintiffs maintain that denying approval of Mary’s home

for Miller’s post-release placement is arbitrary when “Miller had

previously been paroled to the same residence with his mother,

7

In advancing his reply, Counsel Bandel invites the Court to

refer to Miller’s pro se submissions, stating:

Plaintiff DANIEL MILLER’s pro se papers are

significant in their recitation of the law on

multiple issue presented and the Court is

respectfully referred to the moving papers

with regard to all issues raised by the

defendants, rather than repeat what is stated

profoundly therein.

(Reply Aff. ¶3.) Notably, though, Bandel offers no citation to

the moving papers to which he alludes. In the absence of such

guidance, the Court is at a loss as to what specific law or

arguments Counsel Bandel would have the Court consider. “Courts

are entitled to assistance from counsel, and an invitation to

search without guidance is no more useful than a litigant’s request

to a district court at the summary judgment stage to paw through

the assembled discovery material. ‘Judges are not like pigs,

hunting for truffles buried in’ the record.” Albrechtsen v. Bd.

of Regents of Univ. of Wisconsin Sys., 309 F.3d 433, 436 (7th Cir.

2002) (quoting United States v. Dunkel, 927 F.2d 955, 956 (7th

Cir. 1991)). Nonetheless, in addition to the Reply Affirmation,

in ruling upon the Plaintiffs’ request for preliminary injunctive

relief, the Court has also considered the Injunction Application

and all the corresponding supporting affidavits filed by Miller,

pro se.

13

despite that [2006] conviction concerning theft from his mother.”

(Id. ¶13; see also id. ¶14 (“Not approving the residence now,

fifteen years after the theft conviction, when [Mary]’s residence

had been approved in the past, closer in time to the subject theft,

is wholly arbitrary.”); see also id. ¶23 (“The denial of residence,

fifteen years after the subject theft, when (1) the residence had

previously been acceptable [in 2007], and (2) [Miller] is permitted

in the house anytime outside of curfew hours, is completely

arbitrary and absurdly and irrationally applied to achieve any

State purpose that defendants can try to attach to.”).) They also

contend that as to Miller’s conviction for sexual assault of a

minor “[d]enying [Miller]’s residence with his mother has no

rational relation to the State’s interest of preventing crime” and

that “[t]he residence was entirely coincidental and in no way a

rational cause of the crime.” (Id. ¶26; see also id. ¶27 (same).)

Plaintiffs do not meaningfully reply to the State

Defendants’ assertion that because Plaintiffs cannot prove

constitutional injuries, they have failed to show irreparable

harm. (See id. ¶29 (“Plaintiffs strongly dispute that argument

and refer the Court to all papers submitted in support of the

herein petition.”); cf. supra note 7.) In response to the final

elements of the preliminary injunction standard, i.e., weighing

14

the equities and assessing the public interest, Plaintiffs contend

“[i]t should not be offensive to the public that a person who

served his sentence now be released.” (Id. ¶33.) More

specifically, Plaintiffs assert “[i]t is in the public interest

for family members to take care of their elderly parents rather

than for the parents to be placed in nursing homes at the expense

of the State via Medicare and Medicaid,” and “the definite

consequence of allowing . . . Miller to reside with and care for

[Mary] significantly outweighs the small likelihood that a theft

occurs again.” (Id. ¶¶34, 35.) Plaintiffs further baldly contend

that Miller’s non-release “is the result of defendants completely

ignoring and sabotaging . . . Miller’s efforts to find housing.”

(Id. ¶36; see also id. ¶38.) Finally, Plaintiffs advance the

argument that “the public would be offended not by . . . Miller’s

release, but rather by the insufficiency of services provided by

defendants for people like . . . Miller and by defendants [sic]

overall failure to sufficiently inspect and approve residences for

. . . Miller.” (Id. ¶ 39.)

DISCUSSION REGARDING PRELIMINARY INJUNCTIVE RELIEF

I. The Legal Standard

A party seeking a preliminary injunction

must show “(a) irreparable harm and (b) either

(1) likelihood of success on the merits or (2)

sufficiently serious questions going to the

15

merits to make them a fair ground for

litigation and a balance of hardships tipping

decidedly toward the party requesting the

preliminary relief.” Citigroup Global Mkts.,

Inc. v. VCG Special Opportunities Master Fund

Ltd., 598 F.3d 30, 35 (2d Cir.2010). The

burden is even higher on a party like [movant]

that seeks “a mandatory preliminary injunction

that alters the status quo by commanding some

positive act, as opposed to a prohibitory

injunction seeking only to maintain the status

quo.” Id. at 35 n.4 (internal quotation marks

omitted). A mandatory preliminary injunction

“should issue only upon a clear showing that

the moving party is entitled to the relief

requested, or where extreme or very serious

damage will result from a denial of

preliminary relief.” Id. (internal quotation

marks omitted).

Cacchillo v. Insmed, Inc., 638 F.3d 401, 405–06 (2d Cir. 2011);

see also Demirayak v. City of N.Y., 746 F. App’x 49, 51 (2d Cir.

Aug. 24, 2018) (summary order) (“A heightened standard applies

when a movant seeks a preliminary injunction that either alters

the status quo or would provide the ultimate relief sought in the

underlying action.” (citing Tom Doherty Assocs., Inc. v. Saban

Entm’t, Inc., 60 F.3d 27, 33-34 (2d Cir. 1995)). In assessing a

request for preliminary injunctive relief, “[i]rreparable harm is

‘the single most important prerequisite for the issuance of a

preliminary injunction.’” Demirayak, 746 F. App’x at 51 (quoting

Bell & Howell: Mamiya Co. v. Masel Supply Co. Corp., 719 F.2d 42,

45 (2d Cir. 1983)). A district court has broad discretion in

16

determining whether to grant or deny preliminary injunctive

relief. See Moore v. Consol. Edison Co. of N.Y., 409 F.3d 506,

511 (2d Cir. 2005).

Here, Plaintiffs ask for a mandatory preliminary

injunction because they seek proactive action by the Injunction

Defendants, i.e., that the Injunction Defendants either

immediately release Miller to Nassau County DSS or immediately

approve his placement with his mother, Mary. (See Injunction

Application at 2, ¶1(a)&(b).) Therefore, the Court employs the

heightened standard of a clear showing of entitlement to analyze

the relief sought. See, e.g., Our Wicked Lady LLC v. Cuomo, No.

21-CV-0165, 2021 WL 915033, at *3 (S.D.N.Y. Mar. 9, 2021)

(instructing that where the movant seeks a mandatory preliminary

injunction, “the movant must also: (1) make a strong showing of

irreparable harm, and (2) demonstrate a clear or substantial

likelihood of success on the merits” (quoting Yang v. Kosinski,

960 F.3d 119, 127-28 (2d Cir. 2020)).

II. The Instant Case

A. The Authority of the Injunction Defendants

As an initial matter, “[a]n injunction may issue only in

circumstances where the state official has the authority to perform

the required act.” Loren v. Levy, No. 00-CV-0787, 2003 WL 1702004,

17

at *11 (S.D.N.Y. Mar. 31, 2003) (cleaned up), aff’d, 120 F. App’x

393 (2d Cir. 2005); see also, e.g., Briscoe v. Rice, No. 11-CV-

0578, 2012 WL 253874, at *4 (E.D.N.Y. Jan. 27, 2012)(same);

Zappulaa v. Fischer, No. 11-CV-6733, 2013 WL 1387033, at *10

(S.D.N.Y. Apr. 5, 2013) (same). Here, Plaintiffs have not

established, clearly or otherwise, that Defendants Stanford or

Morales have the authority to affect the injunctive relief sought.

Indeed, they fail to address this threshold issue at all.

Conversely, the State Defendants have established that both

Defendants Stanford and Morales lack such authority. As to

Defendant Stanford, the State Defendants have demonstrated that

Stanford: is the Chairwoman of the N.Y.S. Board of Parole (“BOP”)

who supervises “many administrative functions of the [BOP] and

perform[s] all other lawful duties including . . . setting the

conditions of release”; “do[es] not have the authority to instruct

Community Supervision as to whether to approve or deny housing” or

“to override housing decisions”; and, “h[as] not been involved in

any decision as to whether to approve or deny proposed residences

for Daniel Miller.” (See Stanford Decl., ECF No. 31-4, ¶¶2, 6,

8; see also id. ¶4 (“The BOP is not involved in decisions of

whether to approve or deny housing for parolees or individuals who

are under community supervision.”).) As to Defendant Morales, the

18

State Defendants have demonstrated, Morales: is an Offender

Rehabilitation Coordinator for DOCCS whose responsibilities

include collecting pertinent information from inmates, family, and

friends, regarding proposed housing placement and entering such

information into a database for further investigation as to SARA

compliance; “was not involved in the decision to deny placement of

Mr. Miller at his mother’s house”; “will not be involved in the

decision to approve” Miller for placement in a shelter; and, is

“not involved in decisions as to whether to approve or deny

proposed community housing of inmates.” (See Morales Decl., ECF

No. 31-3, ¶¶2, 4, 11-14.) Thus, in the absence of any showing

that Defendants Stanford or Morales have the authority to perform

the injunctive relief sought, Plaintiffs motion for a preliminary

injunction directed towards Defendants Stanford and Morales is

denied.

B. The Constitutional Claims

Regarding the “irreparable harm” component of the

preliminary injunction analysis, as recently stated by District

Judge Cogan of this District:

Although the Second Circuit has stated that

“the alleged violation of a constitutional

right . . . triggers a finding of irreparable

harm,” Jolly v. Coughlin, 76 F.3d 468, 482 (2d

Cir. 1996), “the favorable presumption of

irreparable harm arises only after a plaintiff

19

has shown a likelihood of success on the

merits of the constitutional claim,” Page v.

Cuomo, 478 F. Supp.3d 355, 364 (N.D.N.Y. 2020)

(citing Jolly, 76 F.3d at 482). “Thus, when

a plaintiff seeks injunctive relief based on

an alleged constitutional deprivation, ‘the

two prongs of the preliminary injunction

threshold merge into one.’” Id. (quoting

Turley v. Giuliani, 86 F. Supp. 2d 291, 295

(S.D.N.Y. 2000)).

Weisshaus v. Cuomo, 512 F. Supp. 3d 379, 390 (E.D.N.Y. 2021). As

stated, supra, Plaintiffs’ request for relief is based upon alleged

violations of their constitutional rights. Thus, the Court turns

to assessing Plaintiffs’ constitutional claims.

1. Mary Lacks Standing to Bring Her Constitutional Claims

The State Defendants argue that because Mary does not

have standing to assert her § 1983 claims, she cannot show a

likelihood of success on any of those claims. Their argument is

premised on the notion that “[a] parent lacks standing to bring

individual claims under § 1983 based upon a deprivation of a

child’s constitutional rights because only the person toward whom

the state action was directed, and not those incidentally affected

may maintain a § 1983 claim.” Nguyen v. Milliken, No. 15-CV-0587,

2016 WL 2962204, at *7 (E.D.N.Y. May 20, 2016) (cleaned up); see

also Morgan v. City of N.Y., 166 F. Supp. 2d 817, 819 (S.D.N.Y.

2001) (finding a parent “lacks standing to bring individual claims

under § 1983 based upon a deprivation of [a child’s] constitutional

20

rights” because “only the person toward whom the state action was

directed, and not those incidentally affected may maintain a §

1983 claim” (cleaned up)); see generally Horton v. Bd. of Educ. of

the Sherburne-Earlville Cent. Sch. Dist., No. 15-CV-0782, 2016 WL

2354266, at *2 (N.D.N.Y. May 4, 2016) (dismissing § 1983 claim

asserted by a parent for lack of standing); Naples v. Stefanelli,

972 F. Supp. 2d 373, 385 (E.D.N.Y. 2013) (same). Plaintiffs have

not offered any counterargument to the State Defendants’ arguments

regarding standing. Having reviewed the Plaintiffs’ Verified

Complaint and other submissions, the Court agrees that Plaintiffs

have not established that Mary possesses the requisite standing to

bring her claims of constitutional violations; in turn, Mary is

unable to demonstrate a likelihood of success on any of those

claims. Hence, Mary is not entitled to the requested preliminary

injunctive relief. Even if, argunendo, Mary were to have

standing, for the reasons discussed infra, the Court would still

find that Mary is not entitled to preliminary injunctive relief.

2. Plaintiffs’ Fourteenth Amendment Due Process Claims

Recently, the New York State Court of Appeals has

determined that there is no constitutional violation arising from

“the practice of temporarily confining level three sex offenders

in correctional facilities, after the time they would otherwise be

21

released to parole or postrelease supervision (PRS), while they

remain on a waiting list for accommodation at a shelter compliant

with Executive Law § 259-c(14).” People ex rel. Johnson v.

Superintendent Adirondack Corr. Facility, 36 N.Y.3d 187, 192 (N.Y.

2020). Noting that “New York statutes allow DOCCS to place a

SARA-restricted sex offender temporarily in an RTF, until SARA-

compliant housing is identified,” in Johnson, the Court of Appeals

addressed whether that was offensive to the U.S. Constitution.

Id. at 197. It first considered and rejected a Fourteenth

Amendment substantive due process challenge based upon claims that

the petitioner’s “confinement to an RTF in prison-like conditions,

after the maximum expiration date of his determinate sentence had

passed, violated his fundamental liberty interest,” where, as is

the case here, the petitioner “was subject to the SARA residency

requirement,” and his “assignment to an RTF was based on a

mandatory condition of his PRS—a condition that DOCCS can require

him to satisfy while he is under its supervision.” Id. at 200-01

(citation omitted). In reaching this conclusion, the Court of

Appeals engaged in a thorough Fourteenth Amendment substantive due

process analysis and reasoned that to treat the petitioner’s

“claimed right to release as a fundamental constitutional liberty

interest would be self-defeating” given that “[t]he law

22

unquestionably provides that a defendant sentenced to PRS who

violates any condition of supervision . . . at any time during PRS

may be reincarcerated.” Id. at 200 (cleaned up). Therefore,

“[r]equiring an individual who has not satisfied SARA’s housing

restrictions to remain in an RTF until SARA-compliant housing is

identified does not violate a fundamental liberty interest.” Id.

at 201. The Court of Appeals explained that the petitioner’s

“substantive due process claim must . . . be understood as

asserting non-fundamental constitutional rights [making] . . . it

. . . subject to rational basis review[.]” Id. at 202. Under

this “undemanding level of judicial review,”8 “[c]onfining level

three sex offenders who are on a waiting list for SARA-compliant

shelter housing is not so unrelated to the achievement of any

combination of legitimate purposes as to be irrational.” Id. at

203 (cleaned up).

Hence, in the instant case, as articulated by the New

York Court of Appeals and as conceded by Plaintiffs, the Court

8 The Court of Appeals instructed that under the applicable

rational basis test “the challenged confinements must be evaluated

by means of the most relaxed and tolerant form of judicial

scrutiny” and “courts may even hypothesize the Legislature’s

motivation or possible legitimate purpose.” Id. at 202 (cleaned

up); see id. (further stating, “[a]t bottom, the rational basis

standard of review is a paradigm of judicial restraint”) (citation

and quotation marks omitted)).

23

engages in a rational basis analysis review of Plaintiffs’

Fourteenth Amendment claims. Under this standard, to the extent

Plaintiffs challenge Miller’s continued placement in the RTF while

he is on a waitlist for shelter housing as violating their

Fourteenth Amendment due process rights, such placement is

rationally related to the State’s legitimate governmental interest

in keeping Miller more than 1,000 feet away from schools.

Therefore, Plaintiffs cannot show a likelihood of succeeding on

their due process claims.

Plaintiffs further complain that the rejection of

Miller’s proposal of Mary’s home for his post-release housing

placement was arbitrary and capricious. In support of this

position, Plaintiffs rely upon Matter of Telford v. McCartney, 155

A.D.3d 1052 (N.Y. App. Div., 2d Dep’t 2017). (See Miller Ltr.,

ECF No. 25.) In Telford, the respondent, McCartney, the Suffolk

County Chief of DOCCS, denied petitioner’s proposal of his mother’s

home for his post-release residence despite three parole officers

having inspected the family home on two different occasions and

finding it suitable. See id. McCartney “cit[ed] concerns about

the safety of the petitioner and his family, as well as the

community and parole officers, which arose from unspecified

community opposition.” Id. at 1053. New York’s Appellate

24

Division, Second Department, reversed the judgment and remanded it

for reconsideration, stating:

Under the circumstances of this case,

speculation by DOCCS about possible community

efforts to exclude the petitioner from

otherwise suitable housing and about the

petitioner’s potential response to such

efforts is not a rational basis for denial of

otherwise suitable housing. . . . As the

respondents have articulated no other basis

for denying approval of the proposed

residence, the respondents’ refusal to approve

the Telford home as a suitable postrelease

residence was arbitrary and capricious, as the

determination bears no rational relation to

the petitioner’s past conduct or likelihood

that he will re-offend . . . .

Id. at 1054 (internal citations omitted).

Plaintiffs’ reliance on Telford is misplaced as Miller’s

case is readily distinguishable. First, in the instant case, the

parole officer, Defendant Smith, did not find Mary’s home suitable

for Miller’s post-release placement “because it would be

detrimental to the safety of Mary . . . and of the community to

allow . . . Miller to reside in the home where he committed sexual

crimes and where he would be the caretaker for his elderly,

disabled mother from whom he had previously stolen $34,000.”

(Smith Decl. ¶14.) Smith’s supervisor, Defendant Hubbard, agreed

with Smith’s reasoning and recommendation. (Hubbard Decl. ¶14.)

Second, the reasons for recommending denial of Mary’s home for

25

Miller’s post-release placement are rationally related to Miller’s

past conduct and the likelihood that he will re-offend. As to

Mary: Given her advanced age, disabilities, and dependence upon

others for her physical care, it is not unreasonable to be

concerned that she could easily fall prey to further theft by

Miller. It is of no moment that Miller had previously been

released to Mary’s home after his 2006 conviction for his theft

from Mary, since at that time Mary was younger and not suffering

the level of debilitating physical restraints she faces today.

Moreover, it is not unreasonable to conclude that it would be

unsafe for the community if Miller were to reside in Mary’s home

post-release given that the sexual assault of a minor previously

occurred in that home, in light of Mary’s age and disabilities,

which, taken together, present an environment where Miller could

readily re-offend. Third, there has been no indication here

regarding possible community efforts to exclude Miller from Mary’s

home. Instead, under the circumstances of this case, denial of

Mary’s home for Miller’s post-release placement is rationally

related to his past conduct and to the likelihood of him re-

offending. As such, Plaintiffs are unable to clearly show a

likelihood of success on their due process claims.

26

3. Miller’s Eighth Amendment Claim

In Johnson, the New York State Court of Appeals Court

also considered a petitioner’s Eighth amendment cruel and unusual

punishment claim and held that confinement of a level 3 sex

offender in an RTF beyond the maximum expiration date was not done

in deliberate indifference to the petitioner’s liberty interest.

See Johnson, 36 N.Y.3d at 204-06. There, the DOCCS declined

petitioner’s request to release him to the New York City Department

of Homeless Services shelter system. See id. at 205. The Court

of Appeals ruled that DOCCS’s retention of the petitioner in an

RTF pending the availability of SARA-compliant shelter did not

constitute deliberate indifference given a parole officer’s

statutory duty “to actually supervise the [petitioner-]parolee,

which requires knowledge . . . that the parolee’s residence is not

in violation of the conditions of release.” Id. at 205-06 (second

alteration in original; quotation marks and citations omitted).

Therefore, “DOCCS’s confinement of [petitioner] in an RTF,

consistent with statutory authority, did not constitute

indifference to his plight as a sex offender who is subject to

SARA.” Id. at 206.

Like the petitioner in Johnson, Miller similarly asks

that DOCCS release him to the Nassau County Department of Social

27

Services (hereafter, “Nassau DSS”) without assurances of available

SARA-compliant placement. (See Injunction Application ¶1(a); see

also Reply. Aff. ¶37.) Miller “is a SARA-restricted parolee

awaiting housing in Nassau County” who “will be released to Nassau

DSS as soon as possible.” (Singletary Decl. ¶¶5, 6.) “However,

there are other SARA-restricted parolees who have been awaiting

housing for a longer period of time than he.” (Id. ¶6.) Moreover,

while “Nassau County has several beds in four (4) shelters that

are SORA[9]-approved” “each of those spaces is occupied[.]”

(Haruthunian Decl., ECF No. 28-1, ¶9 (further noting “there are

others awaiting for the first opening”); see also id. ¶9, n.2 (“The

SORA-approved shelters are not exclusive to sex offenders; they

house others as well.”).) Thus, given these considerations,

DOCCS’s confinement of Miller in an RTF, consistent with its

statutory authority, does not constitute deliberate indifference

to his plight as a sex offender who is subject to SARA. See

Johnson, 36 N.Y.3d at 206; see also People ex rel. McCurdy v.

Warden, Westchester County Corr. Facility, 36 N.Y.3d 251 (N.Y.

2020)(discussing DOCCS’s statutory authority to hold an individual

on a PRS in an RTF for up to the first six months of the PRS term).

9 Declarant Haruthunian notes “Petitioner uses the term SARA.

Upon information and belief, SARA and SORA refer to the same

designation.” (Singletary Decl. ¶8, n.1.)

28

Similarly, because there was a rational basis for denying approval

of Miller’s post-release placement in Mary’s home, discussed

supra, Miller is not likely to succeed with his Eighth Amendment

claim on this basis. Therefore, in the absence of clearly showing

a likelihood of success on the merits of this constitutional claim,

preliminary injunctive relief is not warranted.

4. Plaintiffs’ First Amendment Claims

(a) Miller’s First Amendment Retaliation Claim

“To prove a First Amendment retaliation claim under

Section 1983, a prisoner must show that ‘(1) that the speech or

conduct at issue was protected, (2) that the defendant took adverse

action against the plaintiff, and (3) that there was a causal

connection between the protected speech and the adverse action.’”

Espinal v. Goord, 558 F.3d 119, 128 (2d Cir. 2009) (quoting Gill

v. Pidlypchak, 389 F.3d 379, 380 (2d Cir. 2004)) (subsequent

history omitted). Further, “[c]ourts are to approach First

Amendment retaliation claims by prisoners with skepticism and

particular care.” Walker v. Senecal, No. 9:20-CV-0083, 2021 WL

3813081, at *4 (N.D.N.Y. July 19, 2021) (cleaned up), report &

recommendation adopted by 2021 WL 3793771 (N.D.N.Y. Aug. 26, 2021).

Here, Plaintiffs appear to allege that in retaliation

for Miller having commenced a state court action against Defendant

29

Stanford and others, which challenges the constitutionality of

N.Y.S. Executive Law § 259-c(14) (hereafter, the “State Court

Action”), Miller was placed in an RTF pending the availability of

SARA-compliant housing. (See Compl. ¶¶24-49.) However,

Plaintiffs cannot clearly show this cause of action is likely to

succeed. For a level 3 sex offender like Miller, the SARA housing

restriction is a mandatory condition of parole, which Miller

acknowledges. (See Compl. ¶25); see also Miller v. Cuomo, Index

No. 3898-20, slip op. at 7 (N.Y. Sup. Ct. Mar. 2, 2021) (hereafter,

the “State Miller Ruling”10) (stating Miller “concedes that SARA

is a ‘mandatory condition’ of his PRS” (citing N.Y.S. Exec. Law §

259-c(14)); McCurdy, 36 N.Y.3d at 254. Hence, the Court agrees

with the State Defendants’ argument that “the SARA housing

restriction would have to be imposed as a condition of parole

regardless of any lawsuit filed by Miller against any Defendant.”

(State Response at 14.) In turn, as the state court reasoned in

denying Miller’s motion to supplement his State Court Action by

adding a claim of retaliation, a defendant “cannot be liable for

retaliation if [he or] she would have taken the adverse action

10 In the State Miller Ruling, issued in Miller’s State Court

Action, the court granted in part the defendants’ dismissal motions

and denied Miller’s motion to supplement his state court complaint

to add, inter alia, a retaliation cause of action. (See State

Miller Ruling, Ex. A, ECF No. 1-1, attached to Compl.)

30

even in the absence of the protected conduct.” (State Miller

Ruling at 7 (citing Murray v. Hulihan, 436 F. App’x 22 (2d Cir.

Aug. 30, 2011).) As a result, Plaintiffs cannot demonstrate a

causal connection between the filing of his State Court Action and

his placement in an RTF pending approval of SARA-compliant housing.

Thus, Plaintiffs cannot meet the heightened standard for their

requested preliminary injunction relying upon this First Amendment

cause of action.

(b) Mary’s First Amendment Familial Association

Claim

While “[p]arolees are . . . not without constitutional

rights,” United States ex rel Sperling v. Fitzpatrick, 426 F.2d

1161, 1164 (2d Cir. 1970), they are subject to “restrictions not

applicable to other citizens,” enjoying only “conditional liberty

properly dependent on observance of special parole restrictions.”

Morrissey v. Brewer, 408 U.S. 471, 482 (1972); see also United

States v. Polito, 583 F.2d 48, 54 (2d Cir. 1978) (“While

petitioner’s parole releases him from immediate physical

imprisonment, it imposes conditions which significantly confine

and restrain his freedom . . . .” (cleaned up); see generally

Trisvan v. Annucci, No. 14-CV-6016, 2016 WL 7335609, at *3

(E.D.N.Y. Dec. 16, 2016). Indeed, as the State Defendants aptly

argue: “A parole condition that incidentally affects a familial

31

relationship but does not prohibit familial contact does not

violate the First Amendment.” (State Response at 13.)

Here, Mary vaguely complains that her right of familial

association guaranteed by the First Amendment has been violated.

(See Compl. ¶122.) Without more, that is insufficient.

Similarly, the allegation that Miller’s time to contact Mary (and

friends) has been curtailed to “BARELY” 15 minutes per day (see

id. ¶78) since his relocation to an RTF does not make out a First

Amendment freedom of association violation for the simple reason

that Miller may still contact Mary. See, e.g., Daniels v. Ralph,

No. 10-CV-0884, 2012 WL 2120591, at *8-9 (W.D.N.Y. June 11, 2012)

(dismissing First Amendment familial association claim where

parolee’s parole condition did not forbid contact with family,

even though it made such contact more difficult). Accordingly,

Plaintiffs cannot make a clear showing of a likelihood of success

on this claim; consequently, the granting of preliminary

injunction relief is forestalled.

***

Because the party seeking a preliminary injunction must

satisfy each factor of the analysis, see, e.g., Grand River Enter.

Six Nations, Ltd. v. Pryor, 481 F.3d 60, 68 (2d Cir. 2007), and

because the Court finds Plaintiffs are unable to clearly show a

32

likelihood of success on their constitutional claims, the Court

need not consider the remaining preliminary injunction factors.

See generally Pope v. County of Albany, 687 F.3d 565, 570 n.3

(2012) (“Because this appeal fails on the likelihood of success

factor, we need not consider the balance of equities further.”);

Oneida Nation of N.Y. v. Cuomo, 645 F.3d 154, 164 (2d Cir. 2011)

(where movant failed to satisfy its burden of establishing a

likelihood of success on the merits, “there is no need to address

the other prongs of the [preliminary injunction] analysis).

Further, to the extent not explicitly addressed, the Court has

considered Plaintiffs’ remaining arguments in favor of granting

them preliminary injunctive relief and finds them unavailing.

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]

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DISCUSSION REGARDING MILLER’S RECONSIDERATION MOTION11

I. The Legal Standard

“A motion for reconsideration should be granted only

when the [movant] identifies an ‘intervening change of controlling

law, the availability of new evidence, or the need to correct a

clear error or prevent manifest injustice.’” Kolel Beth Yechiel

Mechil of Tartikov, Inc. v. YLL Irrevocable Trust, 729 F.3d 99,

104 (2d Cir. 2013) (quoting Virgin Atl. Airways, Ltd. v. Nat’l

Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992)). A motion for

reconsideration is “not a vehicle for relitigating old issues,

presenting the case under new theories, securing a rehearing on

11 The Court notes that because Plaintiffs are represented by

counsel, any pro se filings after Counsel Bandel’s notice of

appearance would ordinarily be denied. See 28 U.S.C. § 1654 (“In

all courts of the United States the parties may plead and conduct

their own cases personally or by counsel as, by the rules of such

courts, respectively, are permitted to manage and conduct causes

therein.” (emphasis added)); see also O'Reilly v. New York Times

Co., 692 F.2d 863, 868 (2d Cir. 1982) (“Section 1654 does not

itself confer any right to ‘hybrid representation’”. (quoting

United States v. Wolfish, 525 F.2d 457, 462–63 (2d Cir. 1975)

(subsequent history omitted))). However, it appears that Miller

prepared and sent his pro se Reconsideration Motion before Counsel

Bandel made his appearance in the case. Since the receipt of the

Reconsideration Motion was, to a certain degree, outside of

Miller’s control and subject to the control of the U.S. Postal

Service, in its discretion and in this instance only, the Court

considers Miller’s pro se Reconsideration Motion. Plaintiffs are

ON NOTICE: The Court will not consider any other pro se filings

while Plaintiffs are represented by counsel.

34

the merits, or otherwise taking a second bite at the apple.”

Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52

(2d Cir. 2012) (internal quotation marks omitted) (quoting Sequa

Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998)). Indeed,

“[i]t is black letter law that a motion for reconsideration may

not be used to advance new facts, issues or arguments not

previously presented to the Court[.]” Nat’l Union Fire Ins. Co.

of Pittsburg, PA v. Las Vegas Prof’l Football Ltd. P’ship, 409 F.

App’x 401, 403 (2d Cir. 2010) (summary order) (internal quotation

marks and citations omitted). The standard for granting a motion

for reconsideration is “strict, and reconsideration will generally

be denied unless the moving party can point to controlling

decisions or data that the court overlooked.” Analytical Surveys,

684 F.3d at 52 (quoting Shrader v. CSX Transp., Inc., 70 F.3d 255,

257 (2d Cir. 1995)).

II. The Instant Case

Miller seeks reconsideration of that portion of the

Court’s Omnibus Order denying Plaintiffs’ request for a TRO. (See

ECF No. 19.) As is apparent from the Court’s discussion in denying

the Plaintiffs’ preliminary injunction, supra, it has neither

overlooked controlling decisions cited in Miller’s Reconsideration

Motion nor any data. Moreover, to the extent Miller attempts to

35

advance new facts, issues, or arguments not previously presented

to the Court via his Reconsideration Motion, it is not the proper

vehicle to do so. In any event, the Court GRANTS reconsideration.

Upon reconsideration, however, the Court adheres to its initial

ruling denying the Plaintiffs’ request for a TRO for substantially

the same reasons the Court denies the Plaintiffs’ request for a

preliminary injunction, supra, because “[t]he standard for an

entry of a TRO is essentially the same as for a preliminary

injunction.”12 Free Country Ltd v. Drennen, 235 F. Supp. 3d 559,

565 (S.D.N.Y. 2016) (citing Andino v. Fischer, 555 F. Supp. 2d

418, 419 (S.D.N.Y. 2008); see id. (noting that a TRO “perhaps even

more so than a preliminary injunction, is an ‘extraordinary and

drastic remedy, one that should not be granted unless the movant,

by a clear showing, carries the burden of persuasion’” (quoting

JBR, Inc. v. Keurig Green Mountain, Inc., 618 F. App’x 31, 33 (2d

Cir. 2015))).

12 “A party seeking a TRO, like one seeking a preliminary

injunction, must typically show four elements: (1) a likelihood of

success on the ultimate merits of the lawsuit; (2) a likelihood

that the moving party will suffer irreparable harm if a TRO is not

granted; (3) that the balance of hardships tips in the moving

party's favor; and (4) that the public interest is not disserved

by the relief granted.” Free Country, 235 F. Supp. 3d at 565

(quoting JBR, 618 F. App’x at 33).

36

CONCLUSION

Accordingly, IT IS HEREBY ORDERED that the portion of

the Plaintiffs’ Injunction Application (ECF No. 3) upon which the

Court deferred ruling, i.e., the request for preliminary

injunction, is DENIED; and

IT IS FURTHER ORDERED that Miller’s pro se

Reconsideration Motion (ECF No. 19) is GRANTED, but upon

reconsideration, the Court adheres to its original ruling denying

that portion of Plaintiffs’ Injunction Application seeking a TRO;

and

IT IS FURTHER ORDERED that this case is referred to

Magistrate Judge Tomlinson for discovery purposes.

Finally, pursuant to 28 U.S.C. § 1915(a)(3), the COURT

CERTIFIES that any appeal from this Order would not be taken in

good faith; therefore, in forma pauperis status is DENIED for the

purpose of any appeal. See Coppedge v. United States, 369 U.S.

438, 444-45 (1962).

SO ORDERED.

/s/ JOANNA SEYBERT

Joanna Seybert, U.S.D.J.

Dated: September 16 , 2021

Central Islip, New York

37