Franza v. Stanford

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

DOMINIC M. FRANZA,

Plaintiff,

No. 18-CV-10892 (KMK)

v.

OPINION & ORDER

TINA M. STANFORD, et al.,

Defendants.

Appearances:

Dominic M. Franza

Beacon, NY

Pro se Plaintiff

Neil Shevlin, Esq.

New York State Office of the Attorney General

New York, NY

Counsel for Defendants

KENNETH M. KARAS, United States District Judge:

Pro se Plaintiff Dominic M. Franza (“Plaintiff”), currently incarcerated at Fishkill

Correctional Facility, brought suit against New York State Board of Parole Chairwoman Tina M.

Stanford (“Stanford”), Commissioners Erik Berliner (“Berliner”), Charles Davis (“Davis”),

Tyece Drake (“Drake”), Caryne Demosthenes (“Demosthenes”), and Marc Coppola (“Coppola”),

and Chief Counsel Kathleen M. Kiley (Kiley; collectively, “Defendants”) pursuant to 42 U.S.C.

§ 1983. (See Second Am. Compl. (“SAC”) (Dkt. No. 40).) Plaintiff alleges that Defendants

violated his rights under the Fourteenth Amendment and Supreme Court precedent in United

States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954).

Before the Court is Defendants’ Motion To Dismiss (the “Motion”), pursuant to Federal

Rule of Civil Procedure 12(b)(6). (See Not. of Mot. To Dismiss (“Defs.’ Mot.”) (Dkt. No. 43);

Defs.’ Mem. of Law in Supp. of Mot. To Dismiss (“Defs.’ Mem.”) (Dkt. No. 44).) For the

following reasons, Defendants’ Motion is granted.

I. Background

A. Factual Background

The following facts are drawn from Plaintiff’s Second Amended Complaint (“SAC”),

including all attached documents. See Sierra Club v. Con-Strux, LLC, 911 F.3d 85, 88 (2d Cir.

2018) (accepting “all factual allegations as true” for the purposes of a motion to dismiss and

deeming a complaint to include “any written instrument attached to it as an exhibit” (citations

omitted)).

1. The New York Parole Scheme

Under New York State law, at least one month prior to the date on which an inmate is

eligible for parole, an inmate must be interviewed by members of the Parole Board to “determine

whether he should be paroled in accordance with the guidelines adopted pursuant to subdivision

four of section two hundred fifty-nine-c of this article.” N.Y. Exec. Law § 259-i(a)(i). In

relevant part, these guidelines (“§ 8002.2”) provide that “[i]n making a release determination, the

Board shall be guided by risk and needs principles, including the inmate’s risk and needs scores

as generated by a periodically-validated risk assessment instrument, if prepared by the

Department of Corrections and Community Supervision (collectively, ‘Department Risk and

Needs Assessment’).” 9 N.Y. Comp. Codes R. & Regs., tit. 9, § 8002.2(a) (2017). Moreover,

“[i]f a Board determination, denying release, departs from the Department Risk and Needs

Assessment’s scores, the Board shall specify any scale within the Department Risk and Needs

Assessment from which it departed and provide an individualized reason for such departure.” Id.

As part of the New York State rulemaking process, the Department of Corrections also issued a

“Notice of Adoption” wherein it clarified that the Parole Board “will specify any scale within the

assessment from which it departed that impacted its decision.” (SAC Exhibits 23.)1

2. The November 14, 2017 Interview

Plaintiff is currently serving a sentence of 25 years to 50 years in the New York State

Prison system after conviction in New York County on three counts of attempted murder in the

second degree and one count of possession of a dangerous weapon in the first degree. (Id. at 30,

56.) Despite those convictions, Plaintiff maintains his innocence. (Id. at 38–40, 75.) On June

16, 2017, Offender Rehabilitation Counselor Victor Gallo prepared Plaintiff’s “Risk and Needs

Assessment” in advance of his upcoming Board of Parole interview. (SAC ¶ 13.) The Risk

Assessment includes “Criminogenic Need Scales,” with scores associated with such categories as

“Risk of Felony Violence,” “Arrest Risk, “Abscond Risk,” “Criminal Involvement,” and

“Negative Social Cognitions,” among others. (SAC Exhibits 26.) Plaintiff’s Risk Assessment

indicated “low” and “unlikely” risk in all such categories. (Id.)

On November 14, 2017, Plaintiff appeared before a panel that consisted of Defendants

Demosthenes, Coppola, and Davis for his Board of Parole interview. (SAC ¶ 15.) The interview

was “a non-adversarial type proceeding” and took place “without the full panoply of procedural

safeguards.” (Id.) Demosthenes conducted the interview, and he acknowledged on the record

that Plaintiff’s risk assessment was “low across the board.” (SAC Exhibits 34.) Nevertheless,

the panel denied parole. (Id. at 51.) In rendering its decision, the panel determined that “if

released at this time, there is a reasonable probability that [Plaintiff] would not live at liberty

1 Citations to the SAC itself will refer to “SAC” followed by paragraph number; citations

to exhibits attached to the SAC and included at the same docket entry, (Dkt. No. 40), will refer to

“SAC Exhibits” followed by ECF-stamped page number.

without violating the law,” and that his “release at this time is incompatible with the welfare and

safety of the community.” (Id.) The panel also noted the “heinous[ness]” of Plaintiff’s crime

and that his “disciplinary record reflects multiple sanctions which indicates lack of compliance to

institutional rules.” (Id. at 51–52.) However, Plaintiff alleges, the panel “did not specify any

scale that was departed from, nor a factually individualized reason for a departure being

presented.” (SAC ¶ 16.)

Plaintiff filed an administrative appeal, requesting a new interview primarily on the

grounds that Demosthenes, Coppola, and Davis “violated 9 NYCRR §§ 8002.2(a) and 8002.3(b),

as Defendants did not specify any scale within the Risk and Needs Assessment instrument for a

departure, and did not provide a factually individualized, and in non-conclusory terms, reason for

any departure.” (Id. ¶ 17.)2 As part of that same appeal, Plaintiff also pointed to a discrepancy

between the certified transcript of his interview with the Parole Board panel and the formal

“Parole Board Release Decision Notice,” and he suggested that the discrepancy reflected an

“intentional act” to “tamper[] with” the decision. (SAC Exhibits 58.)3 The Parole Board’s

2 9 N.Y.C.R.R. § 8002.3 provides:

If parole is not granted, the inmate shall be informed in writing, within two weeks of his

or her interview, of the decision denying him or her parole and the factors and reasons for

such denial. Reasons for the denial of parole release shall be given in detail, and shall, in

factually individualized and non-conclusory terms, address how the applicable parole

decision-making principles and factors listed in 8002.2 were considered in the

individual's case. The Board shall specify in its decision a date for reconsideration of the

release decision and such date shall be not more than 24 months from the interview.

N.Y. Comp. Codes R. & Regs. tit. 9, § 8002.3(b) (2017).

3 Although Plaintiff does not attach the Decision Notice that he alleges was tampered

with, Defendants have included a copy of that Decision Notice as Exhibit A to the Declaration of

Neil Shevlin. (Dkt. No. 45.) The Decision Notice is identical to the decision portion of the

transcript except that it includes the following additional sentences at the end:

Appeals Unit subsequently reversed the November 14, 2017 decision and granted Plaintiff a new

interview “in the interest of fairness in” light of the discrepancy between the certified transcript

and the Decision Notice (which the Appeals Unit believed resulted from an “inadvertent[]”

omission from the transcript). (Id. at 70.)

3. The April 17, 2018 Interview

On April 17, 2018, Plaintiff again appeared before a panel of Parole Board, this time

consisting of Defendants Berliner and Shapiro. (SAC ¶ 20.) Again, the panel acknowledged that

Plaintiff’s risk assessment scores were “low for everything,” (SAC Exhibits 81), but concluded

that “release on parole is not appropriate at this time” in light of Plaintiff’s “lack of insight into

the circumstances that led to three counts of attempted murder in the second,” (id. at 93). The

panel explained that “[d]iscretionary release at this time is incompatible with the welfare of

society,” and expressed “hope that [Plaintiff] will use this time gain insight into [his]

relationships with women and how [to] handle disagreements with family members.” (Id.)

Again, Plaintiff alleges that the panel “did not specify any scale that was departed from, nor a

factually individualized reason for a departure being presented.” (SAC ¶ 21.)

Plaintiff filed an administrative appeal, again claiming that the panel disregarded

governing regulations and was therefore invalid. (Id. ¶ 22.) In particular, Plaintiff argued that

The Panel has considered your low COMPAS risk scores. However, you displayed no

emotions for the victim and the family’s suffering yet you profess to have loved your

wife. Note of [sic] made of public opposition to your release. Sentencing minutes and

case plan have bene [sic] considered, including your risk to the community, rehabilitation

efforts and your need for successful community re-entry. Your discretionary release at

this time would not be compatible with the welfare of society and would tend to

deprecate the seriousness of the instance offense as to undermine respect for the law.

(Id.) Defendants maintain that these final sentences were simply omitted from the transcripts

“inadvertently.” (See Defs.’ Mem. 5.)

“Defendants did not specify any scale within the Risk and Needs Assessment instrument for a

departure, and did not provide a factually individualized, and in non-conclusory terms, reason for

any departure.” (Id. ¶ 25.) On October 10, 2018, the Appeals Unit issued its Administrative

Appeal Decision affirming the panel’s denial of parole. (SAC Exhibits 107–15.) In its

accompanying statement, the Appeals Unit explained that there are “several more pages of

narrative and scales contained in the COMPAS instrument that the Board also reviewed and

considered” but that Plaintiff ignored in his appeal. (Id. at 113.) The Appeals Unit also

explained that “in deviating from the low COMPAS scores[, the Board] looked at all of these

factors as well as all of the other records before it,” and that “reasons for departure from certain

COMPAS scores were stated in the Board’s decisions as follows: Appellant’s lack of insight into

the multiple crimes he committed; the Board’s finding that his ability live an honest life is an

issue; his need to build contacts with his family and agencies to support a release on parole; his

sentencing minutes; and his need to gain insight into his relationships with women, and how to

handle disagreements with family members.” (Id.)4

Plaintiff alleges that the signatories to the Administrative Appeals Decision, Defendants

Stanford, Davis, and Drake, “rubber stamped” the decision and “did not even read the record

relied upon” in the Appeals Unit’s statement of its “Findings and Recommendation.” (SAC

¶ 29.) As support for this allegation, Plaintiff points to one page of the Appeals Unit’s statement,

where, in a section title “The Record,” the statement appears to include several sentences relating

4 Although Plaintiff has not attached the formal Parole Board Release Decision Notice

from the April 17, 2018 panel to his SAC, he has attached a transcript of that panel’s oral

decision. That transcript substantially supports the Appeals Unit’s account, including statements

about Plaintiff’s “lack of insight in the circumstances” of his crimes and the “hope that [he]

would use this time to gain insight into [his] relationships with women and . . . family members.”

(SAC Exhibits 93.)

to a case other than Plaintiff’s own. (Id.)5 Defendants admit that the section “inadvertently

referenced another inmate’s criminal record, not [P]laintiff’s.” (Defs.’ Mem. 6.)

On October 17, 2018, the Appeals Unit issued an amended “Appeal Decision Notice” and

statement of “Findings & Recommendation.” (SAC ¶ 31; SAC Exhibits 117–24.) The amended

statement appears to be identical to the October 10, 2018 statement, except for the removal of the

section titled “The Record.” (SAC ¶ 33; SAC Exhibits 117–24.)

Plaintiff alleges that “Defendant Kiley, during the circumstances herein did not ensure

the Defendants were in conformance with Federal and State law, and the adopted rules, as well

failing to ensure the Statement of Appeals Units Finding and Recommendation was in

conformance with Federal and State law, and the adopted rules.” (SAC ¶ 34.)

4. April 17, 2019 Interview

On April 17, 2019, Plaintiff appeared before Commissioner Tana Agostini and Defendant

Demosthenes for his next Board of Parole interview. (Id. ¶ 34.) This panel again denied

Plaintiff parole, explaining that Plaintiff’s “indignation about [his] incarceration spoke louder

than [his] concern or compassion for any of [his] victims,” and that while his COMPAS risk

assessment scores indicated “low risk for re-offense,” the panel would nonetheless depart from

that assessment based on Plaintiff’s “evident anger and the self-aggrandizing nature with which

[he] perceive[s] others.” (SAC Exhibits 127–28.) Plaintiff believes that this panel’s decision,

5 The statement explains that “[t]he record as a whole . . . reflects [that] the Board

considered the appropriate factors, including: the instant murder offense, involving the brutal

stabbing of a woman and Appellant’s efforts at a ‘coverup for what I did’ (see transcript of

Board interview held on May 9, 2018 at page 6, line 1); Petitioner’s criminal history . . . .” (SAC

Exhibits 114.) Plaintiff’s hearing took place on April 17, not May 9; involved a shooting rather

than a stabbing; and Plaintiff has maintained his innocence rather than admitting to a cover-up.

unlike prior Parole Board decisions, “followed the mandate of 9 NYCRR [§ 8002.2(a)],” as it

“identif[ied] the scale from which a departure was being made.” (SAC ¶ 36.)

B. Procedural History

Plaintiff filed his initial Complaint on November 21, 2018, and subsequently filed two

amended complaints. (Compl. (Dkt. No. 1); First Am. Compl. (Dkt. No. 18); SAC.) On July 19,

2019, Defendants filed the instant Motion. (See Defs.’ Mot.; Defs.’ Mem.) Plaintiff filed a

response on August 13, 2019. (Pl.’s Aff. in Opp’n to Defs.’ Mot. (Dkt. No. 46); Pl.’s Opp’n to

Defs.’ Mot. (“Pl.’s Mem.”) (Dkt. No. 47).) Defendants filed a reply on September 3, 2019.

(Defs.’ Mem. of Law in Further Supp. of Defs’ Mot. (“Defs.’ Reply”) (Dkt. No. 48).)

II. Discussion

A. Standard of Review

Defendants move to dismiss the SAC pursuant to Federal Rule of Civil Procedure

12(b)(6). (Defs.’ Mem.) The Supreme Court has held that although a complaint “does not need

detailed factual allegations” to survive a motion to dismiss, “a plaintiff’s obligation to provide

the grounds of his entitlement to relief requires more than labels and conclusions, and a

formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007) (alteration and quotation marks omitted). Indeed, Rule 8 of

the Federal Rules of Civil Procedure “demands more than an unadorned, the-defendant-

unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation

marks omitted). “Nor does a complaint suffice if it tenders naked assertions devoid of further

factual enhancement.” Id. (alteration and quotation marks omitted). Instead, a complaint’s

“[f]actual allegations must be enough to raise a right to relief above the speculative level.”

Twombly, 550 U.S. at 555. Although “once a claim has been stated adequately, it may be

supported by showing any set of facts consistent with the allegations in the complaint,” id. at

563, and a plaintiff must allege “only enough facts to state a claim to relief that is plausible on its

face,” id. at 570, if a plaintiff has not “nudged [his or her] claims across the line from

conceivable to plausible, the[] complaint must be dismissed,” id.; see also Iqbal, 556 U.S. at 679

(“Determining whether a complaint states a plausible claim for relief will . . . be a context-

specific task that requires the reviewing court to draw on its judicial experience and common

sense. But where the well-pleaded facts do not permit the court to infer more than the mere

possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader

is entitled to relief.’” (citation omitted) (second alteration in original) (quoting Fed. R. Civ. P.

8(a)(2))); id. at 678–79 (“Rule 8 marks a notable and generous departure from the

hypertechnical, code-pleading regime of a prior era, but it does not unlock the doors of discovery

for a plaintiff armed with nothing more than conclusions.”).

In considering Defendants’ Motion, the Court is required to “accept[] all factual

allegations as true and draw[] all reasonable inferences in favor of the plaintiff.” Sierra Club,

911 F.3d at 88. Where, as here, a plaintiff proceeds pro se, the Court must “construe[] [his

complaint] liberally and interpret[] [it] to raise the strongest arguments that [it] suggest[s].”

Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013) (per curiam) (quotation marks omitted).

However, “the liberal treatment afforded to pro se litigants does not exempt a pro se party from

compliance with relevant rules of procedure and substantive law.” Bell v. Jendell, 980 F. Supp.

2d 555, 559 (S.D.N.Y. 2013) (quotation marks omitted);

Generally, “[i]n adjudicating a Rule 12(b)(6) motion, a district court must confine its

consideration to facts stated on the face of the complaint, in documents appended to the

complaint or incorporated in the complaint by reference, and to matters of which judicial notice

may be taken.” Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999) (quotation

marks omitted). However, when the Plaintiff is pro se, the Court may consider “materials

outside the complaint to the extent that they are consistent with the allegations in the complaint,”

Alsaifullah v. Furco, No. 12-CV-2907, 2013 WL 3972514, at *4 n.3 (S.D.N.Y. Aug. 2, 2013)

(quotation marks omitted), including, “documents that a pro se litigant attaches to his opposition

papers,” Agu v. Rhea, No. 09-CV-4732, 2010 WL 5186839, at *4 n.6 (E.D.N.Y. Dec. 15, 2010)

(italics omitted), statements by the plaintiff “submitted in response to [a] defendant’s request for

a pre-motion conference,” Jones v. Fed. Bureau of Prisons, No. 11-CV-4733, 2013 WL

5300721, at *2 (E.D.N.Y. Sept. 19, 2013), and “documents that the plaintiff[] either possessed or

knew about and upon which [he or she] relied in bringing the suit,” Rothman v. Gregor, 220 F.3d

81, 88 (2d Cir. 2000).

B. Analysis

Plaintiff seeks damages and declaratory relief for alleged violations of the Fourteenth

Amendment and the Accardi doctrine. (SAC ¶ 52(A)–(D).) In moving for dismissal of

Plaintiff’s claims, Defendants argue that Defendants are entitled to absolute immunity; that

Plaintiff has failed to state a claim under the Fourteenth Amendment; that the Accardi doctrine

does not apply to federal Constitutional claims against states and their employees; that Plaintiff’s

claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994); and that Defendants are entitled to

qualified immunity. (See generally Defs.’ Mem.) This Court addresses several of Defendants’

arguments, but only to the extent necessary to resolve the instant Motion.

1. Absolute Immunity

It is “well established” that Parole Commissioners are entitled to absolute immunity from

suit for damages for actions taken in the course of affirming or denying an inmate’s parole

decision. Victory v. Pataki, 814 F.3d 47, 66 (2d Cir. 2016) (citation omitted); see also King v.

Simpson, 189 F.3d 284, 287 (2d Cir. 1999) (noting that “parole board officials . . . are entitled to

absolute immunity when they decide to grant, deny, or revoke parole” (citation, alteration, and

quotation marks omitted)); Montero v. Travis, 171 F.3d 757, 761 (2d Cir. 1999) (“[P]arole board

officials, like judges, are entitled to absolute immunity from suit for damages when they serve a

quasi-adjudicative function in deciding whether to grant, deny or revoke parole.” (citations

omitted)). Moreover, absolute immunity extends beyond adjudication itself, shielding officials

when they are engaged in functions “integrally related to the judicial process.” Dorman v.

Higgins, 821 F.2d 133, 136 (2d Cir. 1987). Thus, for example, federal probation officers benefit

from absolute immunity when they prepare and provide courts with presentence reports because

these reports “are normally an important part of a federal court proceeding,” and thus the

probation officer “acts as an arm of the court” in producing and providing them. Id. at 137.

However, when officials act outside of their “quasi-adjudicative” roles (or their functions

which are “integrally related to the judicial process”), their conduct is not absolutely protected.

See King, 189 F.3d at 288 (citation omitted). Thus, for example, when a parole officer

recommends that a warrant be issued for the arrest of a parolee, this action is not subject to

absolute immunity because the officer acts in an “administrative rather than adjudicative”

capacity. Id.; see also Scotto v. Almenas, 143 F.3d 105, 111–13 (2d Cir. 1998) (rejecting an

immunity defense in such a case). Similarly, a Parole Commissioner is not protected by absolute

immunity when he or she participates in the “fabrication of evidence . . . before the initiation of

rescission proceedings” because an official “cannot immunize for [§] 1983 purposes all unlawful

conduct performed prior to and independent of a later immunized act, merely by subsequently

engaging in conduct entitled absolute immunity.” Victory, 814 F.3d at 66 (citations omitted).

Here, there is no question that Defendants Stanford, Berliner, Davis, Drake,

Demosthenes, and Coppola were serving as Parole Commissioners in their “quasi-adjudicative”

capacity when they took the actions alleged in the SAC. In particular, Plaintiff alleges that in the

course of rendering the panel’s parole decision at the November 14, 2017 hearing, Demosthenes

“did not specify any scale that was departed from” and that Coppola and Davis “concur[ed].”

(SAC ¶¶ 15–16.) Similarly, Plaintiff alleges that at in the course of rendering their parole

decision at the April 17, 2018 hearing, Shapiro “did not specify any scale that was departed

from” and that Berliner “concur[ed].” (Id. ¶¶ 20–21.) Plaintiff also alleges that Stanford, Davis,

and Drake “rubber stamped the Administrative Appeal Decision Notice” and “did not read the

Statement of Appeals Unites Findings and Recommendation.” (Id. ¶¶ 29–30, 33.) These are the

only actions that Plaintiff ascribes to these Defendants. As each alleged action occurred in the

course of a parole hearing and the rendering of a parole decision, each is indisputably a function

of the Commissioners’ adjudicative role. See Montero,171 F.3d at 760 (“[W]hen [the defendant]

presided over [the plaintiff’s] parole revocation hearing, [the defendant] was performing an

adjudicative function.”); see also Krebs v. N.Y. State Div. of Parole, No. 08-CV-255, 2009 WL

2567779, at *6 (N.D.N.Y. Aug. 17, 2009) (explaining that “parole commissioners who

participated in the decisions to deny [a plaintiff] release on parole” were “engaged in a quasi-

adjudicative function when voting to deny him parole” and so were protected by absolute

immunity).

Plaintiff seeks to escape this straightforward conclusion by arguing that Defendants’

obligation to comply with § 8002.2 in rendering their decision is a “non-discretionary” function

and thus not subject to absolute immunity. In support of this argument, Plaintiff relies on

Westfall v. Erwin, 484 U.S. 292 (1988), for the principle that “absolute immunity for

nondiscretionary functions finds no support in the traditional justification for official immunity.”

Id. at 297. Plaintiff’s argument fails for several reasons. First, Westfall concerned the immunity

of federal officials from state law suit; it says nothing about the absolute immunity of officials

from suits based in federal law. See id. at 293. Second, Congress expressly superseded

Westfall’s “nondiscretionary function” limitation by means of the Federal Employees Liability

Reform and Tort Compensation Act of 1988. See Gutierrez de Martinez v. Lamagno, 515 U.S.

417, 426 (1995) (discussing the passage of this law and its effect on Westfall). Third, although

the principles governing state officer qualified immunity may once have mirrored Westfall’s

distinction between discretionary and ministerial tasks, see Walz v. Town of Smithtown, 46 F.3d

162, 169 (2d Cir. 1995) (explaining that qualified immunity is unavailable for ministerial tasks),

cert. denied, 515 U.S. 1131 (1995), the Second Circuit has more recently cast doubt on the

“continued validity of the ministerial-discretionary function distinction in determining qualified

immunity,” Varrone v. Bilotti, 123 F.3d 75, 82 (2d Cir. 1997) (collecting cases). Moreover, it is

far from clear that the same limitations on officials’ qualified immunity apply to the absolute

immunity that shields those operating in their adjudicative capacities. See Mireles v. Waco, 502

U.S. 9, 11–12 (1991) (explaining that judicial immunity “is overcome in only two sets of

circumstances”: (1) “actions not taken in the judge’s judicial capacity” and (2) “actions, though

judicial in nature, taken in the complete absence of all jurisdiction” (citations omitted)); Fields v.

Soloff, 920 F.2d 1114, 1119 (2d Cir. 1990) (“A judge defending against a [§] 1983 suit is entitled

to absolute immunity from damages for actions performed in his judicial capacity. . . . Liability

will not attach where a judge violated state law by an incorrect decision.” (citations omitted)).

Finally, while Plaintiff characterizes his suit as narrowly challenging Defendants’ purported

failure to comply with § 8002.2, any such failure was simply a feature of Defendants’ parole

decisions—clear exercises of adjudicative power involving a great deal of discretion. See

Montero, 171 F.3d at 760 (explaining that parole board officials deciding whether to grant, deny,

or revoke parole are engaged in an “adjudicative function”); see also Bliven v. Hunt, 579 F.3d

204, 210 (2d Cir. 2009) (“[A]cts arising out of, or related to, individual cases before the judge

are considered judicial in nature.”).6 Plaintiff’s invocation of Westfall is thus unavailing.

In sum, because Defendants Stanford, Berliner, Davis, Drake, Demosthenes, and Coppola

were parole board officials acting in their quasi-adjudicative roles, they are “entitled to absolute

immunity from suit for damages.” See Victory, 814 F.3d at 66.7

2. Qualified Immunity

“The doctrine of qualified immunity protects government officials from liability for civil

damages insofar as their conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223,

231 (2009) (citation and quotation marks omitted). Qualified immunity shields a defendant from

6 Plaintiff’s argument would render immunity defenses meaningless. After all, nearly all

suits brought against public officials (and certainly all suits brought under § 1983) allege

violations of some law. If mere non-compliance with law, even when part of a larger

discretionary or adjudicative activity, amounted to a “ministerial” act, immunity would never

apply. Unsurprisingly, this is not the law. Fields, 920 F.2d at 1119. (“Liability will not attach

where a judge violated state law by an incorrect decision.”)

7 Although Defendant Kiley is Chief Counsel, not a Commissioner, of the New York

State Parole Board, she is likely shielded by absolute immunity as well. As the Second Circuit

has explained, absolute immunity extends to officials performing functions that are “integrally

related to the judicial process.” Dorman, 821 F.2d at 136. Thus, for example, federal probation

officers’ preparation of presentence reports is protected by absolute immunity because these

reports “are normally an important part of a federal court proceeding,” and the probation officer

“acts as an arm of the court” in producing them. Id. at 137. It seems the same should be true of

a Parole Board’s general counsel advising Board members. See Hulsey v. Owens, 63 F.3d 354,

357 and n.6 (5th Cir. 1995) (explaining that the “general counsel of the Texas Board of Pardons

and Paroles is entitled to the same immunity against claims involving parole revocations as that

afforded to Board members themselves”). We need not reach this issue, however, as Kiley is

clearly shielded by qualified immunity as well.

standing trial or facing other burdens of litigation “whenever (1) his conduct did not violate

clearly established law, or (2) it was objectively reasonable for [the official] to believe that his

action did not violate such law.” Naumovski v. Norris, 934 F.3d 200, 210 (2d Cir. 2019)

(alteration in original) (citation and quotation marks omitted).

The Supreme Court has held that when evaluating an asserted qualified immunity

defense, a court may begin by examining whether a reasonable officer in Defendants’ position

would have believed his or her conduct would violate the asserted constitutional right. See

Pearson, 555 U.S. at 236 (overruling Saucier v. Katz, 533 U.S. 194 (2001), and explaining that

judges are no longer required to begin by deciding whether a constitutional right was violated but

are instead “permitted to exercise their sound discretion in deciding which of the two prongs of

the qualified immunity analysis should be addressed first”). The Supreme Court has further

instructed that “[t]o be clearly established, a right must be sufficiently clear that every reasonable

official would [have understood] that what he is doing violates that right. In other words,

existing precedent must have placed the statutory or constitutional question beyond debate.”

Reichle v. Howards, 566 U.S. 658, 664 (2012) (second alteration in original) (citations and

quotation marks omitted). Furthermore, “the right allegedly violated must be established, not as

a broad general proposition, but in a particularized sense so that the contours of the right are

clear to a reasonable official.” Id. at 665 (citations and quotation marks omitted). Otherwise

stated, to determine whether a right is clearly established, courts must determine “whether (1) it

was defined with reasonable clarity, (2) the Supreme Court or the Second Circuit has confirmed

the existence of the right, and (3) a reasonable defendant would have understood that his conduct

was unlawful.” Doninger v. Niehoff, 642 F.3d 334, 345 (2d Cir. 2011) (citation omitted).

Given that “qualified immunity is not only a defense to liability, but also provides

immunity from suit,” a court should resolve a “defendant’s entitlement to qualified

immunity . . . ‘at the earliest possible stage in litigation.’” Lynch v. Ackley, 811 F.3d 569, 576

(2d Cir. 2016) (quoting Pearson, 555 U.S. at 231–32). “[U]sually, the defense of qualified

immunity cannot support the grant of a Rule 12(b)(6) motion,” but a district court may grant a

Rule 12(b)(6) motion on the ground of qualified immunity if “the facts supporting the defense

appear on the face of the complaint.” McKenna v. Wright, 386 F.3d 432, 435–36 (2d Cir. 2004)

(citations, italics, and quotation marks omitted). As a result, “a defendant presenting an

immunity defense on a Rule 12(b)(6) motion instead of a motion for summary judgment must

accept [that] . . . the plaintiff is entitled to all reasonable inferences from the facts alleged, not

only those that support his claim, but also those that defeat the immunity defense.” Id. at 436 .

Here, Plaintiff has failed to allege that Kiley violated Plaintiff’s clearly established

federal rights. In fact, Plaintiff’s only allegations concerning Kiley are that she (1) “is

responsible, along with Defendant Stanford, to ensure all the Commissioners are following the

laws of the State of New York,” (SAC ¶ 6), and (2) “did not ensure the Defendants were in

conformance with Federal and State law, and the adopted rules, as well failing to ensure the

Statement of Appeals Units Finding and Recommendation was in conformance with Federal and

State law, and the adopted rules,” (id. ¶ 34).

These allegations fail to overcome Kiley’s qualified immunity defense for several

reasons. First, “[t]hreadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice” to state a claim for the violation of a clearly established

right. Iqbal, 556 U.S. at 678 (citation omitted) (disregarding a plaintiff’s conclusory statements

and therefore applying qualified immunity).8 Plaintiff has alleged no specific actions by Kiley.

On the contrary, Plaintiff’s allegation that Kiley “failed to ensure” other defendants’ compliance

is precisely the sort of statement that courts regularly hold to be unacceptably “conclusory.” See

Shepherd v. Fischer, No. 10-CV-1524, 2015 WL 1246049, at *12 (N.D.N.Y. Feb. 23, 2015)

(dismissing a claim that officials “fail[ed] to ensure their subordinates were properly and

adequately trained” as a “vague and conclusory allegation”), adopted by2015 WL 1275298

(N.D.N.Y. Mar. 18, 2015); Seymore v. Dep’t of Corr. Servs., No. 11-CV-2254, 2014 WL

641428, at *6 (S.D.N.Y. Feb. 18, 2014) (dismissing a claim that the defendant “failed to ensure

the adequacy of prison inspections” as a “conclusory allegation”); Sedona Corp. v. Ladenburg

Thalmann & Co., Inc., No. 03-CV-3120, 2009 WL 1492196, at *10 (S.D.N.Y. May 27, 2009)

(dismissing the allegation that the defendant was “failing to ensure that its trading was in

compliance with state and federal laws” as “conclusory” where there were “no factual allegations

in the SAC concerning [the defendant’s] alleged short selling activity” (quotation marks

omitted)).

Second, Kiley is entitled to qualified immunity because no “existing precedent . . . [has]

placed the statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S.

731, 741 (2011) (citations omitted). As applied to the facts here, this is a vast understatement.

Plaintiff has offered not a single precedent from any court in support of his assertion that a

failure to adhere to state regulations in explaining parole decisions constitutes a violation of an

inmate’s Fourteenth Amendment rights, let alone that a “failure to ensure” others’ adherence

8 Even without the defense of qualified immunity, the conclusory nature of all allegations

against Kiley would necessitate the dismissal of these claims because such claims fail to comply

with Fed. R. Civ. P. 8(a)(2). See Twombly, 550 U.S. at 555 (“[A] plaintiff’s obligation to

provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and

conclusions . . . .” (citation omitted)).

with a particular (non-authoritative) interpretation of these state regulations constitutes such a

violation. Under such circumstances, it is impossible to say that Kiley violated “clearly

established law.”9 See Naumovski, 934 F.3d at 210; see also Matusick v. Erie Cty. Water Auth.,

757 F.3d 31, 61 (2d Cir. 2014) (explaining that out-of-circuit district court precedent is

insufficient to render a right clearly established); Doninger, 642 F.3d at 345 (requiring that the

Supreme Court or the Second Circuit has confirmed the existence of the right for it to be “clearly

established”).10

3. Declaratory Relief

While absolute and qualified immunity foreclose all claims for damages, they do not

necessarily preclude declaratory relief. See Pulliam v. Allen, 466 U.S. 522, 541 (1984)

(explaining that suits for prospective relief, such as injunctive and declaratory relief rather than

damages, are permitted even where defendants have absolute immunity); MacPherson v. Town of

Southampton, 664 F. Supp. 2d 203, 211 (E.D.N.Y. 2009) (“To the extent Plaintiffs seek

prospective declaratory relief, . . . Plaintiffs’ claims are not barred by judicial immunity.”

(citations omitted)). However, courts generally hold that where public official defendants are

9 Although claims against the other Defendants were dismissed on the basis of absolute

immunity, the same absence of “clearly established law” also precludes claims against them as

well. Accordingly, qualified immunity provides an alternative basis for dismissal with respect to

all Defendants.

10 Plaintiff’s only argument against the applicability of qualified immunity is to rely on

Tellier v. Fields, 280 F.3d 69, 86 (2d Cir. 2000), and assert that Defendants failed to “discharge

the very regulations [they are] entrusted to discharge dutifully and in good faith.” (See Pl.’s

Mem. 25.) In advancing this argument and relying on Tellier, Plaintiff effectively argues that

Defendants are not shielded by qualified immunity because they did not act “in an objectively

reasonable manner.” Id. at 85–86. This Court need not (and does not) reach the issue of whether

Defendants’ conduct was “objectively reasonable,” however, because Plaintiff does not (indeed,

cannot) argue that Defendants behavior was a violation of “clearly established law.”

shielded by absolute or qualified immunity, purely retrospective declaratory relief is

inappropriate. See S. Jackson & Son, Inc. v. Coffee, Sugar & Cocoa Exch. Inc., 24 F.3d 427, 431

(2d Cir. 1994) (“[W]here the remedy sought is a mere declaration of law without implications for

practical enforcement upon the parties, the case is properly dismissed.” (citation and quotation

marks omitted)); see also City of Los Angeles v. Lyons, 461 U.S. 95, 103 (1983) (explaining that

“past wrongs do not in themselves amount to that real and immediate threat of injury necessary

to make out a case or controversy”); Marshall v. N.Y. State Pub. High Sch. Athletic Ass’n, Inc.,

374 F. Supp. 3d 276, 285 (W.D.N.Y. 2019) (collecting cases); Cross v. King, No. 14-CV-7394,

2015 WL 6438819, at *4 (E.D.N.Y. Oct. 22, 2015) (“A declaratory judgment for alleged

retrospective misconduct with no continuing violation of federal law is barred by the absolute

immunity doctrine.” (citations omitted)).

Here, the declaratory relief that Plaintiff seeks is purely retrospective. Plaintiff requests

that the Court issue a declaratory judgment stating that Defendants violated the Accardi doctrine

and the Fourteenth Amendment by “failing to follow their own rules” and “fail[ing] to curb” the

violation of these rules. (SAC ¶ 52(A).) In particular, Plaintiff alleges violations associated with

Defendants’ conduct during his November 14, 2017 and April 17, 2018 Parole hearings. Both of

these hearings are, of course, discrete events in the past. Moreover, Plaintiff does not claim that

these violations are ongoing. To the contrary, Plaintiff agrees that his most recent denial of

parole fully accorded with his interpretation of the New York State regulations because the panel

at his April 17, 2019 hearing “followed the mandate” of the state regulations. (Id. ¶ 36).

Accordingly, because Plaintiff has alleged no ongoing harm or violation but only violations in

the past, declaratory relief would be improper. See Morales v. City of New York, 59 F. Supp. 3d

573, 581–82 (S.D.N.Y. 2014) (rejecting a request for declaratory relief where the plaintiff asked

the court “only to recognize a past wrong”); Ippolito v. Meisel, 958 F. Supp. 155, 161 (S.D.N.Y.

1997) (characterizing a request for declaratory relief as “nothing more than a request for a

declaration of a violation of federal law where there is no continuing violation to enjoin, and is

thus barred against defendants” (citation and quotation marks omitted)). As Plaintiff is entitled

neither to damages nor to declaratory relief, his Second Amended Complaint is dismissed.

III. Conclusion

For the reasons stated above, Defendants’ Motion is granted. Because this dismissal is

based on legal conclusions concerning the applicability of absolute immunity and the absence of

“clearly established law,” the Court concludes that amendment would be futile. See Bogart v.

City of New York, No. 13-CV-1017, 2015 WL 5036963, at *8 (S.D.N.Y. Aug. 26, 2015)

(denying leave to amend, for futility, because the defendants did not “def[y] clearly established

law”); Karris v. Varulo, No. 14-CV-1077, 2014 WL 1414483, at *4 (E.D.N.Y. Apr. 10, 2014)

(“[A]ny amendment to [the] plaintiff’s amended complaint would be futile because, inter alia, all

defendants are entitled to absolute immunity . . . .” (italics omitted)); Dilacio v. N.Y.C. Dist.

Council of the United Bhd. of Carpenters & Joiners of Am., 593 F. Supp. 2d 571, 578 (S.D.N.Y.

2008) (denying leave to replead, for futility, because defendant was “absolutely immune” from

suit). Accordingly, and because Plaintiff has already amended his Complaint twice, dismissal is

with prejudice. See Jin v. Metro. Life Ins. Co., 310 F.3d 84, 101 (2d Cir. 2002) (“[T]he district

court has the discretion to deny leave [to amend] if there is a good reason for it, such as futility . .

. .” (citing Foman v. Davis, 371 U.S. 178, 182 (1962)); see also Knife Rights, Inc. v. Vance, 802

F.3d 377, 389 (2d Cir. 2015) (“[A] party may amend its pleadings more than once ‘only with the

opposing party’s written consent or the court’s leave.’” (quoting Fed. R. Civ. P. 15(a)(2))).

The Clerk of the Court is respectfully requested to terminate the pending motion, (Dkt.

No. 43), mail a copy of this Opinion and Order to Plaintiff, and close the case.

SO ORDERED.

Dated: December li , 2019

White Plains, New York

KENNETH M. KA

UNITED STATES DISTRICT JUDGE

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