Rodriguez v. N.Y. State Dept. of Parole

UNITED STATES DISTRICT COURT DOCUMENT

SOUTHERN DISTRICT OF NEW YORK ELECTRONICALLY FILED

DOC #:

FULGENCIO RODRIGUEZ, DATE FILED: 01/17 /2020

Plaintiff,

-against-

19-CV-0643 (VEC) (JLC)

N.Y. STATE DEPT. OF PAROLE; SENIOR

MEMORANDUM ORDER AND

PAROLE OFFICER D. ESTWICK;

OPINION

PAROLE OFFICER ELVIS RAMOS,

SHIELD #221; N.Y. STATE DEPT. OF

SOCIAL SERVICES,

Defendants.

VALERIE CAPRONI, United States District Judge:

Plaintiff Fulgencio Rodriguez alleges that state agencies and parole officers in New York

violated his federal and state rights while he was subject to parole supervision. See Compl. (Dkt.

2)at 1.1 In particular, Plaintiff claims that he was unlawfully displaced from his home by

conditions imposed by his parole officer, and that he was improperly denied medical benefits by

the Department of Social Services after he was found to be in violation of parole. Compl. at 5,

11–14. After dismissing the state agencies from this case on the ground of Eleventh Amendment

immunity, Dkt. 15, the Court referred the claims against Parole Officers Elvis Ramos and D.

Estwick to Magistrate Judge James Cott, Dkt. 16, who has recommended that the Court dismiss

all remaining claims. Report and Recommendation (“R&R”) (Dkt. 30) at 1. Plaintiff was

required to file any objections to Judge Cott’s recommendation within 14 days of December 20,

2019. Id. at 45–46. Twenty-eight days have elapsed as of the date of this Order, and the Court

1 Because the paragraphs and pages of the Complaint are numbered inconsistently, the Court cites to the page

numbers affixed by the ECF system.

has received no objection to the R&R or any other response from Plaintiff. The Court adopts

Judge Cott’s recommendation that all claims be dismissed, for the reasons set forth below.

BACKGROUND

The Complaint contains two sets of allegations concerning the loss of Plaintiff’s rental

apartment and the discontinuance of his medical coverage. As to the former, Plaintiff appears to

allege that Parole Officer Elvis Ramos’s unlawful actions caused Plaintiff to be evicted. On June

16, 2015, Officer Ramos, in response to a purported allegation of domestic violence lodged by

Plaintiff’s then-cohabiting girlfriend, allegedly ordered Plaintiff to vacate their shared apartment

until June 23, 2015. Compl. at 9. On June 21, Plaintiff told his girlfriend, Francine Mota, to

move out by June 23, at which point Ms. Mota allegedly threatened to file domestic violence and

other charges. Compl. at 11. On June 23, Officer Ramos warned Plaintiff that he would be

returned to jail if such charges were to be filed. Compl. at 11. Out of fear of possible jailtime,

Plaintiff fled after receiving a call from a police officer and became homeless for two and a half

months—until he married Ms. Mota on August 10, 2015. Compl. at 12. In May 2016, Plaintiff’s

landlord informed him that he was delinquent on three months’ rent, which appears to have

ultimately resulted in the entry of a monetary judgment against Plaintiff and his eviction from the

apartment. See Compl. at 13–14. Although the Complaint is not clear on this point, the

delinquency appears to stem from the lack of rent payments during the time that Plaintiff was

homeless and not residing in the apartment. See id.

While Plaintiff was on the run, he discovered that he had lost access to medical coverage

provided by the Department of Social Services. On June 25, 2015, the same day that Plaintiff

fled in response to an inquiry from the New York Police Department, Petitioner was declared

delinquent, and a warrant for violation of parole was issued. Rodriguez v. Stanford, 94 N.Y.S.

3d 540, 540 (N.Y. Sup. Ct. 2017), aff’d, 162 A.D. 3d 1557 (4th Dep’t 2018). Officers Ramos

and Estwick signed a violation report on July 1, 2015, which contained 11 charges, including

failure to report, unpermitted contact with Ms. Mota, and various violent acts against Ms. Mota

and a child. Dkt. 22-4 a 2–5. Plaintiff did not appear for a preliminary hearing on the violation

report until July 1, 2016. Compl. at 13. In the interim, Plaintiff attempted to procure

medications from the Department of Social Services, only to learn on June 7, 2016, that Officer

Ramos had informed Social Services that Plaintiff’s access to state-provided medical services

should be terminated. Compl. at 5. On August 26, 2016, Plaintiff pleaded guilty to a violation

of parole, and his parole was revoked. See Rodriguez, 94 N.Y.S.3d at 540. His later attempt to

withdraw his plea was denied. See id.

Plaintiff commenced this action in federal court, alleging that Officer Ramos and his

supervisor, Officer Estwick, violated 42 U.S.C. § 1983 by (1) causing Plaintiff’s removal and

eviction from his apartment and (2) depriving him of the state’s medical benefits. Compl. at 8–

15. Although not clearly pleaded as causes of action, the Complaint also references Section 504

of the Rehabilitation Act of 1973, the Americans with Disabilities Act (ADA), the Housing and

Community Development Act of 1974 (HCDA), and the New York State Human Rights Law

(N.Y. Exec. Law § 296). See Compl. at 17–22.

Construing the pro se complaint liberally, Judge Cott viewed the pleading as attempting

to allege a claim pursuant to each of the referenced statutes and, in a thorough and well-reasoned

R&R, recommended dismissal of all claims, on multiple grounds. R&R at 12, 28, 35–36, 38–39.

Apart from concluding that Plaintiff failed to plead the elements of any federal claim, Judge Cott

also recommended dismissal based on affirmative defenses of qualified immunity, Eleventh

Amendment immunity, and collateral estoppel. R&R at 40–43. He further recommended

dismissal of the remaining state law claims by declining supplemental jurisdiction and because

both federal and state courts lack jurisdiction to entertain damages actions under state law against

parole officers. R&R at 39–40. And finally, Judge Cott recommended that leave to amend be

denied as futile, particularly in light of Plaintiff’s request that his opposition papers be treated as

an amended complaint, which was done. R&R at 44–45.

DISCUSSION

Upon careful review, the Court finds no clear error in the R&R and adopts the

recommendation that all claims be dismissed and that leave to amend be denied. As did Judge

Cott, the Court construes Plaintiff’s pro se submissions liberally. See Ortiz v. McBride, 323 F.3d

191, 194 (2d Cir. 2003) (“The rule favoring liberal construction of pro se submissions is

especially applicable to civil rights claims.”).

First, as to Plaintiff’s Section 1983 claims, the Court adopts Judge Cott’s

recommendation that the claims be dismissed because Officers Ramos and Estwick are entitled

to qualified immunity. See Lore v. City of Syracuse, 670 F.3d 127, 162–63 (2d Cir. 2012)

(“[F]ederal law accords a public official qualified immunity from personal liability in a civil suit

for damages if his performance of a discretionary function did not violate clearly established

federal statutory or constitutional rights of which a reasonable person in his position would have

known.”). The termination of Plaintiff’s medical coverage could not have been a violation of a

clearly established right because, under New York law, a “person [who is] currently an

absconder from probation or parole supervision and [for whom] a warrant alleging such a

violation is outstanding” is ineligible for public benefits. N.Y. Comp. Codes R. & Regs. tit. 18,

§ 351.2(k)(3)(ii)(a). Similarly, the imposition of a parole condition requiring Plaintiff to

relocate, in response to an allegation of domestic violence against a cohabiting partner,2 does not

violate any clearly established right.3 See Moore v. Vega, 371 F.3d 110, 116 (2d Cir. 2004) (“[I]f

plaintiff were a parolee and defendants’ actions were rationally and reasonably connected to their

duties as parole officers, there would be no violation of a clearly established constitutional right,

and plaintiff’s claim would fail.”). Because the affirmative defense of qualified immunity

appears on the face of the Complaint, Plaintiff’s Section 1983 claims should be dismissed on

Defendants’ Rule 12(b)(6) motion. See Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 74

(2d Cir. 1998) (“An affirmative defense may be raised by a pre-answer motion to dismiss under

Rule 12(b)(6), without resort to summary judgment procedure, if the defense appears on the face

of the complaint.”).

The Court also adopts Judge Cott’s recommendation to dismiss Plaintiff’s remaining

federal claims, to the extent that he asserts any. Plaintiff has not stated a claim for a violation of

the ADA or the Rehabilitation Act because Defendants are not alleged to have discriminated

against Plaintiff on the basis of disability. According to Plaintiff, Officer Ramos terminated

Plaintiff’s medical coverage in order to induce Plaintiff to turn himself in and forced Plaintiff out

of the apartment because Ms. Mota and Officer Ramos were having an affair. Compl. at 5–6.

Neither of those motives, even if true, would support a claim under either the ADA or the

2 Although Plaintiff alleges that Ms. Mota told him that she never called Officer Ramos, Plaintiff also

acknowledges that Officer Ramos in fact received a report of domestic violence. See Compl. at 10, 13–14 (“PO

Ramos should have taken [Ms. Mota] to a shelter.”).

3 See also Robinson v. Pagan, No. 05-CV-1840, 2006 WL 3626930, at *6 (S.D.N.Y. Dec. 12, 2006)

(recommending dismissal because plaintiff’s “status as a parolee also affords him limited constitutional rights, and

no liberty interest in being free from special parole conditions”); Pena v. Travis, No. 01-CV-8534, 2002 WL

31886175, at *9 (S.D.N.Y. Dec. 27, 2002) (“Conditions of parole are discretionary and not subject to judicial review

in the absence of a showing that the board or its agents acted in an arbitrary and capricious manner.” (citation and

quotation marks omitted)); see also Jones v. Cunningham, 371 U.S. 236, 243 (1963) (“While petitioner’s parole

releases him from immediate physical imprisonment, it imposes conditions which significantly confine and restrain

his freedom[.]”).

Rehabilitation Act.4 R&R at 36–37. The Court also agrees with Judge Cott that the relevant

provisions of the HCDA (and its implementing regulations) invoked in the Complaint do not

confer a private right of action.5 R&R at 38.

To the extent that Plaintiff raises any claims under state law, the Court agrees with Judge

Cott and Defendants that declining to exercise supplemental jurisdiction following the dismissal

of all federal claims is appropriate in this case. Ordinarily, “when the federal-law claims have

dropped out of the lawsuit in its early stages and only state-law claims remain, the federal court

should decline the exercise of jurisdiction by dismissing the case without prejudice.” Carnegie-

Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988). To make that determination, the Court must

carefully consider whether declining jurisdiction serves “the values of judicial economy,

convenience, fairness, and comity.” Id.; Catzin v. Thank You & Good Luck Corp., 899 F.3d 77,

85 (2d Cir. 2018) (quotation marks and citation omitted). Here, judicial economy and

convenience favor declining jurisdiction because this case is in its infancy, no discovery has been

taken, and Plaintiff’s complaint does not clearly assert a state law claim—to the extent he does

intend to assert such a claim, he should decide whether to proceed in state court. Comity

strongly favors declining jurisdiction because Plaintiff’s claims would require the federal court

both to apply state law and to review the state’s supervision of Plaintiff’s parole. See Pena v.

4 Henrietta D. v. Bloomberg, 331 F.3d 261, 277 (2d Cir. 2003) (“The ADA . . . provides that ‘no qualified

individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the

benefits of the services, programs, or activities of a public entity.’” (quoting 42 U.S.C. § 12132)); see also 29 U.S.C.

§ 794 (“No otherwise qualified individual with a disability in the United States, as defined in section 705(20) of this

title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of,

or be subjected to discrimination under any program or activity receiving Federal financial assistance.”). Although

Plaintiff alleges that his AIDS condition is a disability, he does not claim that Defendants denied him a benefit

because of his condition. See Dkt. 28 at 3–4.

5 See Reyes v. Erickson, 238 F. Supp. 2d 632, 636 (S.D.N.Y. 2003) (“Because 42 U.S.C. § 5309 does not

create a private right of action, this Court does not have subject matter jurisdiction over that claim and it is therefore

dismissed pursuant to Fed. R. Civ. P. 12(b)(1).”).

Travis, No. 01-CV-8534, 2002 WL 31886175, at *9 (S.D.N.Y. Dec. 27, 2002) (“Review of

conditions of parole are generally matters for state courts.”). Lastly, Plaintiff has now twice

received notice—once via Defendant’s motion (Dkt. 21 at 32) and again via Judge Cott’s

R&R—that he has not clearly asserted a state law claim and that the Court may decline to

exercise supplemental jurisdiction. Plaintiff opted not to contest the issue in his opposition to the

motion to dismiss, see Dkt. 28, and he has not filed an objection to the R&R. Given that, the

Court finds that declining jurisdiction pursuant to 28 U.S.C. § 1367(c)(3) is the fairest outcome

for all parties. For those reasons, supplemental jurisdiction over any state law claims will be

declined as a matter of discretion.

Finally, the Court adopts Judge Cott’s recommendation that leave to amend be denied.

Plaintiff asked that his opposition to the motion to dismiss be construed as a supplemental

pleading, which the Court has done. See Dkt. 28 at 3. Plaintiff has not requested further leave to

amend or objected to Judge Cott’s recommendation that leave be denied. See Lopez v. Shopify,

Inc., No. 16-CV-9761, 2018 WL 481891, at *2 (S.D.N.Y. Jan. 17, 2018) (adopting

recommendation that leave to amend be denied in part because plaintiff “did not seek leave to

amend or identify new facts . . . in his opposition to the motion to dismiss and he did not file any

objections to the R&R”). The Court accordingly agrees with Judge Cott that any amendment in

this case would be futile, particularly in light of Plaintiff’s submission of a supplemental

pleading that failed to cure the several fatal defects in his case.

CONCLUSION

The Court adopts the R&R to the extent that Plaintiff’s Section 1983 claims are dismissed

with prejudice, on the basis of qualified immunity; his ADA and Rehabilitation Act claims, if

any, are dismissed with prejudice for failure to state a claim; his HCDA claim, if any, is

dismissed without prejudice for lack of jurisdiction; his state law claims, if any, are dismissed

without prejudice because the Court declines to exercise supplemental jurisdiction. Leave to

amend is denied as futile.

Plaintiff's failure to file an objection to the R&R operates as a waiver of appellate review

because the R&R contained a notice that Plaintiff's failure to file objections within 14 days will

preclude appellate review, informed Plaintiff of the possibility of an extension of time to file

objections, and cited the relevant law governing objections and computation of time. See R&R

at 45—46; Frank v. Johnson, 968 F.2d 298, 299-300 (2d Cir. 1992) (explaining requirements of

waiver rule as applied to pro se litigants). Accordingly, the Court certifies pursuant to 28 U.S.C.

§ 1915(a)(3) that any appeal from this Order would not be taken in good faith, and permission to

proceed in forma pauperis is denied.

The Clerk of Court is respectfully directed to terminate all pending motions and close the

case. The Clerk is also requested to mail a copy of this Order to Plaintiff and note mailing on the

docket.

SO ORDERED. . .

Date: January 17, 2020 VALERIE CAPRONI

New York, NY United States District Judge