White v. Mielnicki

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

ERIK WHITE,

Plaintiff,

-against- 9:21-CV-791 (LEK/TWD)

TERRANCE MIELNICKI, et al.,

Defendants.

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiff Erik White commenced this action pro se on July 12, 2021. Dkt. No. 1. Plaintiff

later filed an amended complaint on October 12, 2021, requesting assistance of counsel and

alleging violations under 42 U.S.C. § 1983 (“Section 1983”) of his Fifth and Fourteenth

Amendment rights at Mid-State Correctional Facility (“Mid-State C.F.”) by defendants Terrance

Mielnicki, T. Davis, T. Kozak, M. Debraccio, William Fennessy, Jeff McKoy, and Anthony J.

Annucci (“Defendants”). Dkt. No. 12 (“Amended Complaint”). Defendants filed a motion to

dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) on

January 19, 2022. Dkt. No. 24. On May 31, 2022, the Honorable Thérèse W. Dancks, United

States Magistrate Judge, issued a report and recommendation recommending that Defendants’

motion to dismiss for failure to state a claim be granted. Dkt. No. 31 (“Report-

Recommendation”).

Now before the Court is an amended report and recommendation issued by Judge Dancks

on June 1, 2022, reaching the same conclusions as the May 31 Report-Recommendation. Dkt.

No. 32 (“Amended Report-Recommendation”). Plaintiff filed objections to the Amended Report-

Recommendation on July 15, 2022. Dkt. No. 35 (“Objections”). For the reasons that follow, the

Court rejects in part and approves in part the Amended Report-Recommendation.

II. BACKGROUND

A. Factual Allegations

Plaintiff’s Amended Complaint stems from his participation in New York’s Sex Offender

Counseling and Treatment Program (“SOCTP”). Am. R&R at 1. Plaintiff brings Section 1983

Fifth Amendment compelled self-incrimination and Fourteenth Amendment due process claims

against Social Worker Mielnicki, Senior Counselor Davis, Deputy Superintendent of Programs

Kozak, Assistant Deputy Superintendent of Programs Debraccio, Superintendent Fennessy,

Deputy Commissioner of Programs McKoy, and Acting Commissioner Annucci. Id. These

allegations are detailed in the Amended Report-Recommendation, familiarity with which is

assumed. Id. at 2.

B. The Amended Report-Recommendation

After reviewing Plaintiff’s Amended Complaint, Judge Dancks found in the Amended

Report-Recommendation that Plaintiff’s Fifth Amendment compelled self-incrimination claim

should be dismissed for failure to state a claim upon which relief can be granted. Id. at 8. In

particular, Judge Dancks found that, “Absent an allegation that [Plaintiff’s] compelled statements

were used against him in a criminal case, [Plaintiff] has failed to state a claim for a violation of

his right to be free from compelled self-incrimination. Moreover, any contention that the

statements [Plaintiff] made in the SOCTP might be used against him in a future criminal

proceeding is not now ripe for adjudication.” Id. (citations omitted). Judge Dancks thus

recommended granting Defendants’ motion to dismiss as it relates to Plaintiff’s claim of

compelled self-incrimination. Id. at 6.

Judge Dancks then turned to Plaintiff’s Fourteenth Amendment due process claims. First,

Judge Dancks dispensed with Plaintiff’s procedural due process claim. Judge Dancks stated,

“White’s procedural due process claim fails because White concedes that before his good time

credits were revoked, he had a hearing with the Time Allowance Committee (“T.A.C.”) on

February 14, 2020.” Id. at 9. Additionally, Judge Dancks observed that, “According to [Plaintiff],

the decision to revoke his good time credits was repeatedly affirmed—first by Deputy

Superintendent of Programs T. Kozak, then by Superintendent of Midstate Correctional William

Fennessy, and finally by Deputy Commissioner of Programs Jeff McKoy and Acting

Commissioner of the Department of Corrections and Community Supervision Anthony J.

Annucci. [Plaintiff] advances no allegations about how the T.A.C. hearing—or any subsequent

determination—was procedurally deficient.” Id. (citations omitted).

Next, Judge Dancks addressed Plaintiff’s substantive due process claim. Judge Dancks

concluded that Plaintiff failed to show how Defendants’ decisions were arbitrary or irrational.

Specifically, Judge Dancks stated, “Nor does [Plaintiff] advance any factual allegations that

indicate how or why these decisions [by Defendants] were arbitrary or irrational.” Id. As a result,

Judge Dancks recommended dismissing Plaintiff’s Fourteenth Amendment due process claims as

well.

III. STANDARD OF REVIEW

“Rule 72 of the Federal Rules of Civil Procedure and Title 28 United States Code Section

636 govern the review of decisions rendered by Magistrate Judges.” A.V. by Versace, Inc. v.

Gianni Versace, S.p.A., 191 F. Supp. 2d 404, 405 (S.D.N.Y. 2002); see also 28 U.S.C. § 636;

Fed. R. Civ. P. 72. Review of decisions rendered by Magistrate Judges are also governed by the

Local Rules. See L.R. 72.1. As 28 U.S.C. § 636 states:

Within fourteen days after being served with a copy [of the

Magistrate Judge’s report and recommendation], any party may

serve and file written objections to such proposed findings and

recommendations as provided by rules of the court. A judge of the

court shall make a de novo determination of those portions of the

report or specified proposed findings or recommendations to which

objection is made. A judge of the court may accept, reject, or

modify, in whole or in part, the findings of recommendations made

by the magistrate [judge]. The judge may also receive further

evidence or recommit the matter to the magistrate [judge] with

instructions.

28 U.S.C. § 636(b)(1). When written objections are filed and the district court conducts a de

novo review, that “de novo determination does not require the Court to conduct a new hearing;

rather, it mandates that the Court give fresh consideration to those issues to which specific

objections have been made.” A.V. by Versace, 191 F. Supp. 2d at 406 (emphasis in original); see

also 12 Wright & Miller, Fed. Prac. & Proc. Civ. § 3070.2 (3rd ed.) (2022) (“[T]he judge to

whom the objection is made must review the record and magistrate’s recommendations, and

must make a de novo determination of the facts and legal conclusions, receiving additional

evidence and rehearing witnesses at his or her discretion. The district judge must not be a rubber

stamp.” (footnote omitted)).

“The district court may adopt those portions of a report and recommendation to which no

timely objections have been made, provided no clear error is apparent from the face of the

record.” DiPilato v. 7-Eleven, Inc., 662 F. Supp. 2d 333, 339 (S.D.N.Y. 2009). “When a party

makes only conclusory or general objections, or simply reiterates the original arguments, the

Court will review the [report and recommendation] strictly for clear error.” New York City Dist.

Couns. of Carpenters Pension Fund v. Forde, 341 F. Supp. 3d 334, 336 (S.D.N.Y. 2018) (quoting

Molefe v. KLM Royal Dutch Airlines, 602 F. Supp. 2d 485, 487 (S.D.N.Y. 2009)).

“The objections of parties appearing pro se are ‘generally accorded leniency’ and should

be construed ‘to raise the strongest arguments that they suggest.’” DiPilato, 662 F. Supp. 2d at

340 (emphasis in original) (quoting Milano v. Astrue, No. 05-CV-6527, 2008 WL 4410131, at

*2 (S.D.N.Y. Sept. 26, 2008)). “Nonetheless, even a pro se party’s objections to a Report and

Recommendation must be specific and clearly aimed at particular findings in the magistrate’s

proposal, such that no party be allowed a second bite at the apple by simply relitigating a prior

argument.” DiPilato, 662 F. Supp. 2d at 340 (emphasis in original) (quoting Pinkney v.

Progressive Home Health Servs., No. 06-CV-5023, 2008 WL 2811816, at *1 (S.D.N.Y. July 21,

2008)).

IV. DISCUSSION

After the Amended Report-Recommendation was issued on June 1, 2022, see Am. R&R,

Plaintiff filed his Objections to the Amended Report-Recommendation on July 15, 2022. Dkt.

No. 35. Plaintiff objected to the Amended Report-Recommendation’s findings on all of his

constitutional claims. For the purpose of reviewing the Amended Report-Recommendation, the

Court will undertake a de novo determination of Plaintiff’s Objections. Given Plaintiff’s pro se

status, the Court is obligated to construe the allegations in the Amended Complaint with the

utmost leniency. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding that a pro se litigant’s

complaint is to be held “to less stringent standards than formal pleadings drafted by lawyers”).

A. Fifth Amendment Self-Incrimination Claim

Plaintiff objected to the Amended Report-Recommendation’s findings regarding his Fifth

Amendment Claim. In particular, Plaintiff states, “Defendants compelled [me] to give

incriminating statements by threatening to remove [me] from the SOCTP program (the program),

rescind [my] good-time credits, and extend [my] incarceration if [I] asserted [my] right against

self-incrimination.’”1 Objs. at 4. Plaintiff argues, “as clearly proven and evidence, as per all

documentary evidence and information submitted therewith my ‘opposition to Defendants’

motion to dismiss the amended complaint,[’] it is an inarguable fact, not a mere claim, that the

Defendants indeed rescinded my good-time, and conditional release, and extended my

incarceration, for no other reason than upon my completion of the program.” Id. Thus, Plaintiff’s

first objection focuses on Judge Dancks’s recommendation to grant Defendants’ motion to

dismiss concerning Plaintiff’s Fifth Amendment self-incrimination claim. As such, the Court will

conduct a de novo review of this specific portion of the Amended Report-Recommendation. See

28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3).

To survive a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), a

“complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that

is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). A court must accept as true the factual allegations

contained in a complaint and draw all inferences in favor of a plaintiff. See Allaire Corp. v.

Okumus, 433 F.3d 248, 249–50 (2d Cir. 2006). A complaint may be dismissed pursuant to

Rule 12(b)(6) only where it appears that there are not “enough facts to state a claim to relief that

1 Plaintiff also raises a claim arising under the Eighth Amendment’s cruel and unusual

punishment prohibition. See Objs. at 4. However, the Court has already dismissed that claim:

“Even liberally construed, Plaintiff’s Complaint does not allege that he was subjected to cruel

and unusual punishment under the Eighth Amendment. Instead, the primary thrust of Plaintiff’s

Complaint is that, by mandating he take responsibility for the underlying crimes of which he was

convicted while enrolled in the SOCTP, Defendants forced him to violate his right against self

incrimination under the Fifth Amendment and/or that they violated his substantive due process

rights under the Fifth and Fourteenth Amendments . . . the Court has construed Plaintiff’s

Complaint to assert claims arising under only the Fifth and Fourteenth Amendments.” See White

v. Mielnicki, No. 21-CV-0791, 2021 WL 5410170, at *2 n.2 (N.D.N.Y. Nov. 19, 2021). Dkt. No.

4. Thus, the Court need not address that claim.

is plausible on its face.” Twombly, 550 U.S. at 570. Plausibility requires “enough fact[s] to raise

a reasonable expectation that discovery will reveal evidence of [the alleged misconduct].” Id. at

556.

The plausibility standard “asks for more than a sheer possibility that a defendant has

acted unlawfully.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). “[T]he pleading

standard Rule 8 announces does not require ‘detailed factual allegations,’ but it demands more

than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678

(citing Twombly, 550 U.S. at 555). Where a court is unable to infer more than the mere

possibility of the alleged misconduct based on the pleaded facts, the pleader has not

demonstrated that she is entitled to relief and the action is subject to dismissal. See id. at 678–79.

The Court must determine whether it should accept, reject, or modify the Magistrate

Judge’s recommendation to grant Defendants’ Motion to dismiss with respect to Plaintiff’s Fifth

Amendment self-incrimination claim against Defendants.

The Fifth Amendment of the Constitution protects individuals from compelled self-

incrimination. See U.S. Const. amend. V. “The [Fifth] Amendment not only protects the

individual against being involuntarily called as a witness against himself in a criminal

prosecution but also privileges him not to answer official questions put to him in any other

proceeding, civil or criminal, formal or informal, where the answers might incriminate him in

future criminal proceedings.” Lefkowitz v. Turley, 414 U.S. 70, 77 (1973).

The Magistrate Judge found that, “Absent an allegation that [Plaintiff’s] compelled

statements were used against him in a criminal case, [Plaintiff] has failed to state a claim for a

violation of his right to be free from compelled self-incrimination.” Am. R&R at 8. The Court

respectfully disagrees with the standard articulated by the Magistrate Judge. The Amended

Report-Recommendation relied on the Supreme Court’s plurality opinion in Chavez v. Martinez,

538 U.S. 760, 772 (2003). There, the Supreme Court rejected a compelled self-incrimination

claim that did not occur in the prison context. The Court rejected the claim because the petitioner

was “never made to be a witness against himself in violation of the Fifth Amendment’s Self-

Incrimination Clause because his statements were never admitted as testimony against him in a

criminal case.” Id. at 767. However, given the factual similarities to McKune v. Lile, 536 U.S.

24, 36 (2002) (plurality opinion)—which also involved a prisoner raising a Fifth Amendment

claim in the context of a sex offender program—the Court concludes that the Fifth Amendment

principles from McKune control the outcome here.

“A sex-offender treatment program that requires disclosure of criminal conduct without

guaranteeing immunity does not violate the Fifth Amendment’s Self-Incrimination Clause unless

the consequences for non-disclosure compel the prisoner to make self-incriminating statements.”

Krull v. Oey, 805 F. App’x 73, 75 (2d Cir. 2020) (quoting McKune, 536 U.S. at 36 (plurality

opinion)). “[T]he Supreme Court in [McKune] was unable to reach a conclusive decision ‘on the

question of what standard to apply when evaluating compulsion for the purposes of the Fifth

Amendment privilege against self-incrimination in a prison setting.’” Donhauser v. Goord, 314

F. Supp. 2d 119 (N.D.N.Y. 2004) (quoting United States v. Jones, 299 F.3d 103, 111 n.2 (2d Cir.

2002)). “When a fragmented Court decides a case and no single rationale explaining the result

enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken

by those Members who concurred in the judgments on the narrowest grounds.’” Donhauser, 314

F. at 126 (quoting Marks v. United States, 430 U.S. 188, 193 (1977) (citations omitted)). “The

penalties potentially faced in these [prison] cases—longer incarceration and execution—are far

greater than those we have already held to constitute unconstitutional compulsion in the [death]

penalty cases. Indeed, the imposition of such outcomes as a penalty for refusing to incriminate

oneself would surely implicate a ‘liberty interest.’” McKune, 536 U.S at 52 (O’Connor, J.,

concurring).

In McKune, the Supreme Court considered whether a Kansas state prison program that

required convicted sex offenders to admit their previous crimes resulted in unconstitutional

compelled self-incrimination. McKune, 536 U.S. at 30. The program specifically required

participants to “discuss and accept responsibility for the crime for which they have been

sentenced,” and “complete a sexual history form, which details all prior sexual activities,

regardless of whether such activities constitute uncharged criminal offenses.” Id. Prisoners who

declined to participate in the program suffered consequences including being transferred to a

harsher correctional facility and loss of various prison privileges. Id. The plurality held that the

program did not violate the Fifth Amendment’s prohibition against self-incrimination. It

observed, “[a] prison clinical rehabilitation program, which is acknowledged to bear a rational

relation to a legitimate penological objective, does not violate the privilege against compelled

self-incrimination if the adverse consequences an inmate faces for not participating are related to

the program objectives and do not constitute atypical and significant hardships in relation to the

ordinary incidents of prison life.” Id. at 37-38.

However, the opinion’s reasoning garnered the support of only four Justices. Justice

O’Connor concurred only in the judgment, and on narrow grounds. Justice O’Connor did not join

the plurality’s “atypical and significant hardship” legal standard, and merely agreed that the

particular consequences in that case—transfer to another prison facility or loss of certain prison

privileges—failed to constitute a Fifth Amendment violation. McKune, 536 U.S. at 48

(O’Connor, J., concurring). Importantly, Justice O’Connor considered a longer term of

incarceration an impermissible penalty in the Fifth Amendment prison context. McKune, 536

U.S. at 52. (“The penalties potentially faced in these cases—longer incarceration and

execution—are far greater than those we have already held to constitute unconstitutional

compulsion in the penalty cases. Indeed, the imposition of such outcomes as a penalty for

refusing to incriminate oneself would surely implicate a ‘liberty interest.’”). The plurality made a

similar distinction by suggesting that a longer term of incarceration may be impermissible under

the Fifth Amendment: “[Petitioner’s] decision not to participate . . . did not extend his term of

incarceration. Nor did his decision affect his eligibility for good-time credits or parole.”

McKune, 536 U.S. at 38 (plurality opinion). Notably, the use of incriminating statements in a

subsequent criminal proceeding was not a prerequisite to finding a Fifth Amendment violation in

the prison context.

Another court in this District has previously found that the sort of sex offender program

at issue here, affecting good time credits and extending incarceration, violated the Fifth

Amendment’s prohibition against self-incrimination. See Donhauser v. Goord, 314 F. Supp. 2d

119 (N.D.N.Y. 2004). In Donhauser, the court evaluated a similar sex offender prison program

that mandated inmate participation; refusal to participate resulted in loss of good time credits and

possible future prosecution. Id. at 121. In that case, the court distinguished the lesser penalties

the petitioner endured in McKune—which resulted only in a loss of prison privileges and transfer

to another correctional facility—from the penalties the plaintiff would have faced, including a

longer incarceration sentence. The court stated that, “The loss of good time credits in the first

instance, as plaintiff here faced, would change the fact of incarceration to the extent such credits

impact the length of incarceration. Therefore, the consequences faced by plaintiff for his

invocation of the privilege against self-incrimination were serious and potent.” Id. at 132. The

Seventh Circuit found similarly regarding an Indiana state sex offender prison treatment

program. See Lacy v. Butts, 922 F.3d 371 (7th Cir. 2019). “The decision to decline participation

in [the program] is not merely a trigger for a later stage in which the state takes a more holistic

view of an inmate’s progress toward rehabilitation. Instead, a prisoner’s choice to invoke his

privilege against self-incrimination is the direct cause of his loss of credits—credits that

otherwise would be statutorily guaranteed (assuming no independent reason to revoke them).

Neither the plurality nor the concurring opinions in [McKune] support such a system.” Id. at

378-79 (citations omitted).

Other courts in this Circuit have come out the other way. Those courts found that a

prisoner’s loss of good time credits for failing to admit past wrongdoings in a sex offender

treatment program did not constitute a violation of the Fifth Amendment. See, e.g., Adams v.

Annucci, No. 17-CV-3794, 2018 WL 4608216 (S.D.N.Y. Sept. 25, 2018); Sayles v. Fischer, No.

08-CV-0747, 2011 WL 1199834 (W.D.N.Y. Mar. 29, 2011); Fifield v. Eaton, 669 F. Supp. 2d

294, 298 (W.D.N.Y. 2009).

The Second Circuit declined to take a definitive position on this question until recently.

“As Justice O’Connor noted in her concurrence, the Supreme Court in [McKune] was unable to

reach a conclusive decision ‘on the question of what standard to apply when evaluating

compulsion for the purposes of the Fifth Amendment privilege against self-incrimination in a

prison setting.’ We need not take any position on this specific question here, and we do not.”

United States v. Jones, 299 F.3d 111 at n.2 (citations omitted). The Second Circuit, however,

clarified that “[a] sex-offender treatment program that requires disclosure of criminal conduct

without guaranteeing immunity does not violate the Fifth Amendment’s Self-Incrimination

Clause unless the consequences for non-disclosure compel the prisoner to make self-

incriminating statements.” Krull, 805 F. App’x at 75.2

In this case, participating in the SOCTP required Plaintiff to “admit guilt and take

responsibility” for his underlying crimes, “regardless of [his] actual innocence or guilt, or

pending legal matters, such as [an] appeal.” Am. Compl. at 6. At first, Plaintiff refused to

participate in the SOCTP because he grew concerned that admitting his guilt would “jeopardize

[his] appeal.” Id. Soon after Plaintiff refused to participate, Defendants removed him from the

SOCTP, rescinded his good time credits, and extended his incarceration sentence. Am. R&R at

2.

Plaintiff’s exclusion from the SOCTP for refusing to admit his guilt does not constitute

compelled disclosure under McKune because participation in a prison program is only a change

in prison conditions. See McKune, 536 U.S at 48-49 (O’Connor, J., concurring). However,

removal of Plaintiff’s good time credits for declining to admit his guilt in the SOCTP amounts to

compelled disclosure. Losing eligibility for good time credits is precisely what Justice O’Connor

2 In a 2010 unpublished opinion, the Second Circuit found that in the qualified immunity context,

conditioning the award of good time credits on one’s willingness to participate in a sex offender

treatment program does not clearly violate the Fifth Amendment under McKune. Edwards v.

Goord, 362 Fed. App’x 195 (2d. Cir. 2010) (emphasis added). “All that can be said

of McKune, then, is that a majority of the justices agreed that the Fifth Amendment privilege

against compelled self-incrimination was not violated when prisoners faced less restrictive

sanctions than [loss of good time credits] as a consequence of refusing to participate in sex

offender counseling.” Edwards, 362 Fed. App’x at 199 (cleaned up). The court then observed,

“While the [McKune] plurality did note, in reaching its conclusion, that respondent’s decision

not to participate in the Kansas [sex offender treatment program] did not affect his eligibility for

good-time credits or parole, the phrase ‘clearly established Federal law,’ as determined by the

Supreme Court of the United States . . . refers to holdings, as opposed to . . . dicta.” Id. (cleaned

up). Here, however, Plaintiff’s claim does not arise in the qualified immunity context, so he need

not allege that Defendants violated clearly established federal law.

concluded would run afoul of the Fifth Amendment, and what Donhauser held is

unconstitutional. See 314 F. Supp at 132.

Moreover, the consequences Plaintiff faced for non-disclosure compelled him to make

incriminating statements, as prohibited by Krull. “A sex-offender treatment program that

requires disclosure of criminal conduct without guaranteeing immunity does not violate the Fifth

Amendment’s Self-Incrimination Clause unless the consequences for non-disclosure compel the

prisoner to make self-incriminating statements.” See Krull, 805 F. App’x at 75.

Here, Plaintiff specifically acknowledged that he “consistently expressed [his] concern

regarding the program[’]s enforced practice and requirement that its participants must admit guilt

regardless of actual innocence or pending legal matters such as appeal.” Am. Compl. at 6-7.

Plaintiff also noted, “That was such a concern because for me to comply and successfully

complete the program, I would have to accept responsibility for my offense.” Id.

Thus, Plaintiff was faced with two choices: refuse to participate in the SOCTP to avoid

admitting past crimes, thereby suffering an automatic extension of his incarceration, or

participate in the SOCTP and admit his criminal wrongdoing while he faced a pending criminal

appeal. Am. R&R at 2. To avoid the consequence of a longer incarceration sentence for refusing

to disclose his crimes, Plaintiff eventually “gave in to the Administration’s demands” and made

incriminating statements concerning the crimes for which he was convicted. See Am. Compl. at

11. The prospect of a longer sentence—which Plaintiff said resulted in admitting his past

crimes—is the sort of consequence required to make out a Fifth Amendment violation under

Krull. Consequently, because Plaintiff’s initial non-disclosure of his crimes resulted in a

consequence (i.e., forfeited good time credits and a longer incarceration sentence) which led to

his compelled admission of past crimes, Plaintiff makes out a plausible Fifth Amendment self-

incrimination claim. Consistent with what Donhauser has previously held, and Supreme Court

precedent regarding compelled self-incrimination claims in prisons, Defendants’ motion to

dismiss Plaintiff’s Fifth Amendment claim is denied.

B. Fourteenth Amendment Due Process Claims

Plaintiff also objected to the Amended Report-Recommendation’s findings regarding his

Fourteenth Amendment claims. See Objs. at 6-7. Specifically, Plaintiff asserts:

I had not, in any manner, been informed of such requirement to complete the

SOCTP program, as was being imposed by the Defendants’, at any time prior to

my meeting with the Time Allowance Committee (T.A.C.), nor is complete

completion of the program a stipulated, nor standardized policy, procedure, rule,

nor requirement been contractually stipulated nor had I been informed of any

reason regarding cause for my appearance before the T.A.C. At any time prior to

my actual appearance, my incompletion of the program, standing alone, was

insufficient to substantive cause for revoking my good time credits and extending

my incarceration. Thus procedurally deficient and irrational . . . therefore the

revocation of my good time and extension of my incarceration, without sufficient

cause nor procedure, was clearly arbitrary and capricious.

See id. Plaintiff’s second objection focuses on Judge Dancks’s recommendation to grant

Defendants’ motion to dismiss Plaintiff’s Fourteenth Amendment procedural and substantive due

process claims. As such, the Court will also conduct a de novo review of this specific portion of

the Amended Report-Recommendation. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3).

The Fourteenth Amendment prohibits States from depriving individuals of “life, liberty,

or property without due process of law.” U.S. Const. amend. XIV. To state a violation of

procedural due process under the Fourteenth Amendment, a plaintiff must plead facts

establishing the following elements: (1) the existence of a property or liberty interest of which he

was deprived; and (2) the deprivation of that interest with insufficient process. See Bryant v.

New York State Educ. Dep’t, 692 F.3d 202, 218 (2d. Cir. 2012). “By contrast, to state a claim for

substantive due process a plaintiff must allege that: (1) he had a valid liberty interest and (2)

defendants infringed on that right in an arbitrary or irrational manner.” Royal Crown Day Care

LLC v. Dep’t of Health & Mental Hygiene of City of NY, 746 F.3d 538, 545 (2d Cir. 2014).

“For a substantive due process claim to survive a Rule 12(b)(6) dismissal motion, it must allege

governmental conduct that ‘is so egregious, so outrageous, that it may fairly be said to shock the

contemporary conscience.’” Velez v. Levy, 401 F.3d 75, 93 (2d Cir. 2005) (quoting Cnty. of

Sacramento v. Lewis, 523 U.S. 833, 847 n.8 (1998)).

The Magistrate Judge declined to find violations of Plaintiff’s procedural or substantive

due process rights. Am. R&R at 8–9. The Court agrees. Although “inmates have a liberty interest

in good time credit they have already earned,” Abed v. Armstrong, 209 F.3d 63, 66-67 (2d Cir.

2000) (citing Wolff v. McDonnell, 418 U.S. 539, 556-57), when viewed in the light most

favorable to Plaintiff, his Complaint does not indicate that revocation of his good time credits

was done with insufficient process or in an arbitrary or irrational manner.

Plaintiff’s procedural due process claim fails. “[W]here good time credits constitute a

protected liberty interest, a decision to revoke such credits must be supported by some evidence.”

Superintendent, Massachusetts Corr. Inst., Walpole v. Hill, 472 U.S. 445, 447 (1985). “[T]he

relevant question is whether there is any evidence in the record that could support the conclusion

reached by the disciplinary board.” Id. at. 455-56 (emphasis added). Here, Plaintiff concedes that

he was afforded a hearing with the T.A.C. that was appealed several times before his good time

credits were revoked. Am. Compl. at 7. Moreover, he fails to allege how revocation of his good

time credits lacked the support of any evidence. See generally Am. Compl. Plaintiff supports his

procedural due process claim with conclusory assertions including that Defendants’ decision to

require his participation in SOTCP was “clearly abusive,” id. at 7, and made “absent sufficient

reason.” Id. Thus, Plaintiff has failed to plead a procedural due process claim.

Plaintiffs claim for a violation of substantive due process also fails. Plaintiff does not

allege how revocation of his good time credits was done in an arbitrary or irrational way.

Plaintiffs claims are supported by mere conclusory statements including the contention that

Defendants’ actions were “adverse to rehabilitation and treatment,” Am. Compl. at 14, and his

erroneous belief that “conditional release is guaranteed and constitutes mandatory release.” Objs.

at 7. Because Plaintiff has failed to show Defendants’ actions were irrational or arbitrary,

Plaintiffs substantive due process claim fails.

V. CONCLUSION

Accordingly, it is hereby:

ORDERED, that the Amended Report-Recommendation (Dkt. No. 32) is REJECTED

to the extent that it recommends granting Defendants’ Motion to Dismiss for failure to state a

claim as to Plaintiffs Fifth Amendment self-incrimination claim; and it is further

ORDERED, that the Amended Report-Recommendation is APPROVED AND

ADOPTED to the extent that it recommends granting Defendants’ Motion to Dismiss for failure

to state a claim as to Plaintiff's Fourteenth Amendment due process claims; and it is further

ORDERED, that the Clerk serve a copy of this Memorandum-Decision and Order on all

parties in accordance with the Local Rules.

IT ISSO ORDERED.

DATED: September 6, 2022

Albany, New York

LAWRENCE E. KAHN

United States District Judge

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