Williams v. Essex

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

ANDREW WILLIAMS,

MEMORANDUM OPINION

Plaintiff,

AND ORDER

-against-

19-CV-11545 (PMH)

E. NOVOA, ORC, et al.,

Defendants.

PHILIP M. HALPERN, United States District Judge:

Plaintiff Andrew Williams (“Plaintiff”), proceeding pro se and in forma pauperis, brings

this action under 42 U.S.C. § 1983 against a number of employees from the New York State

Department of Corrections and Community Supervision (“DOCCS”) in connection with his

delayed release from incarceration in December 2016.

Plaintiff filed his initial Complaint on December 13, 2019 (Doc. 2) and an Amended

Complaint on May 21, 2020 (Doc. 14, “Am. Compl.”). Read broadly, the Amended Complaint

presses claims for the following constitutional violations: (1) cruel and unusual punishment, in

violation of the Eighth Amendment; (2) denial of due process, in violation of the Fourteenth

Amendment; (3) denial of equal protection, also in violation of the Fourteenth Amendment; and

(4) retaliation, in violation of the First Amendment. (See generally Am. Compl.).1 The Amended

Complaint names the following Defendants: (1) E. Novoa (“Novoa”), an Offender Rehabilitation

Coordinator (“ORC”); (2) F. Foster (“Foster”), another ORC; (3) Paul Essex (“Essex”), the ORC

Supervisor; (4) R. Watkins (“Watkins”), his Parole Officer; (5) the New York State Board of

Examiners for Sex Offenders (“Board”); (6) Steve Whitbeck (“Whitbeck”), Chairman of the

Board; (7) Dawn Amsler (“Amsler”), a Board employee; (8) Edwin Elffied (“Elffied”), a Board

1 Citations to the Amended Complaint correspond to the pagination generated by ECF.

employee; (9) Mark Osborne (“Osborne”), a Board employee; and (10) Stephen Webster

(“Webster”), a Board employee. (Id. at 1-4; see also Doc. 18, “Ord. of Serv.”). As of the date of

this Memorandum Opinion and Order only Novoa and Essex (together, the “Served Defendants”)

have appeared in this action.2

The Served Defendants moved to dismiss the Amended Complaint under Federal Rules of

Civil Procedure 12(b)(1) and 12(b)(6) on August 7, 2020. (Doc. 20; Doc. 21, “Def. Br.”). Plaintiff

opposed the motion on October 14, 2020 (Doc. 27, “Opp. Br.”)3, and the motion was briefed fully

with the filing of the Served Defendants’ reply brief on October 27, 2020 (Doc. 28, “Reply Br.”).

For the reasons set forth below, the Served Defendants’ motion to dismiss is GRANTED.

BACKGROUND

I. Parole Proceedings and Challenge to Plaintiff’s Sex Offender Status Designation

In 1984, following a jury trial, Plaintiff was convicted of raping and robbing a twenty-two-

year-old woman. (Am. Compl. at 5). Plaintiff was sentenced to a term of imprisonment of “9 to 18

years, which was to run consecutive[ly] to a term of 25 years that he received on an unrelated

robbery conviction.” (Id.).4 Plaintiff’s maximum release date was November 26, 2035. See N.Y.

2 The Court directed the Clerk of the Court to prepare the paperwork necessary to effect service on Foster,

Whitbeck, Amsler, Elffied, Osborne, and Webster. (See Ord. of Serv.).Upon review of the docket, it does

not appear that the forms were prepared or service attempted. As such, the Court shall issue an additional

Order directing service of the Amended Complaint after this Memorandum Opinion and Order is docketed.

The Board was dismissed from this action by operation of the Eleventh Amendment. (Id. at 2-3).

3 Citations to Plaintiff’s opposition brief correspond to the pagination generated by ECF.

4 The Court notes that this information conflicts with the recitation of facts in the related decision issued by

the New York State Appellate Division, First Department. See People v. Williams, 49 N.Y.S.3d 671, 672

(App. Div. 2017) (noting that Plaintiff “was sentenced to a term of imprisonment of 15 to 30 years, which

was run consecutively to a term of 12 ½ to 25 years that he received on an unrelated robbery conviction”).

While the Court is entitled to take judicial notice of opinions issued by other courts, it may do so “only to

establish the existence of the opinion, not for the truth of the facts asserted in the opinion.” Tirse v. Gilbo,

No. 15-CV-987, 2016 WL 4046780, at *14 (N.D.N.Y. July 27, 2016) (internal quotation marks omitted).

Dep’t of Corrs. & Cmty. Supervision, Inmate Population Information Search (“Inmate Lookup”),

http://nysdoccslookup.doccs.ny.gov (last visited Feb. 4, 2021).5

Plaintiff was granted parole in June 2015 and, in July 2015, the Board concluded that he

“should be designed [sic] a level [three] sex offender.” (Am. Compl. at 6). Plaintiff appeared

thereafter before the Supreme Court of the State of New York for a hearing under the Sex Offender

Registration Act (“SORA”) on September 10, 2015. (Id.). While the Supreme Court adopted the

Board’s recommendation and designated Plaintiff a level three sex offender, by an Opinion dated

March 21, 2017, the New York State Appellate Division, First Department, “exercise[d] [its]

discretion to modify [Plaintiff’s] sex offender adjudication from level three to level two.” Williams,

49 N.Y.S.3d at 673; (Am. Compl. at 6).

II. Plaintiff’s Release from Woodbourne Correctional Facility

As Plaintiff’s sex offender designation was being adjudicated in the manner outlined above,

following the June 2015 decision to grant Plaintiff parole, DOCCS employees at Woodbourne

worked to prepare him for release.

On August 15, 2015, Novoa gave Plaintiff a letter which advised that, upon his release,

Watkins would be Plaintiff’s Parole Officer. (Am. Compl. at 9). Sometime in September 2015—

after the Supreme Court adopted the Board’s recommendation classifying Plaintiff as a level three

5 “The Court may take judicial notice of Plaintiff’s DOCCS inmate lookup information.” Simmonds v.

Family Dollar Store, No. 18-CV-1241, 2018 WL 5447046, at *1 n.1 (E.D.N.Y. Oct. 25, 2018); see also

Jackson v. Sullivan Cty., No. 16-CV-3673, 2018 WL 1582506, at *5 n.8 (S.D.N.Y. Mar. 27, 2018) (“Courts

in this district have taken judicial notice of information obtained from online inmate tracking services.”

(internal quotation marks omitted)); Rosario v. New York City, No. 12-CV-4795, 2013 WL 2099254, at *1

n.1 (S.D.N.Y. May 15, 2013). Plaintiff’s information is available by searching the “Department

Identification Number” or “DIN” 85-B-0689. The resulting information shows that Plaintiff was released

from Woodbourne Correctional Facility (“Woodbourne”) on December 13, 2016. (See Def. Br. at 7 (citing

Inmate Lookup); Opp. Br. at 3 (advising that “Plaintiff was released from Woodbourne Correctional

Facility on December 13, 2016”)).

sex offender, but more than a year before the Appellate Division rendered its decision—Darlene

McPherson (“McPherson”), Plaintiff’s stepsister, contacted Novoa to “express[] that plaintiff

could move in with her . . . .” (Id. at 6-7). Upon learning that McPherson had a minor child in the

home, “Novoa told her that plaintiff could not move in with [McPherson] because her son was

under eighteen years old.” (Id. at 7). Plaintiff maintains that neither “the Parole Board

Commissioner” nor his Parole Officer ever restricted him from living with a minor. (Id.).

Throughout October, November, and December 2015, Plaintiff spoke regularly with Watkins who

reported “that he was in the process of finding suitable housing for plaintiff.” (Id. at 9).

In February 2016, Watkins notified Plaintiff “that he had found an approved address and

that plaintiff should be released shortly.” (Id. at 9-10). That same month, however, a “neurosurgeon

at Albany Medical Center” recommended that Plaintiff have an unspecified surgery; that

recommendation was approved by DOCCS and the surgery was scheduled for March 2016. (Id. at

7). On March 11, 2016, Novoa advised Plaintiff “that an address ha[d] been approved and that

plaintiff would be released shortly.” (Id.). The release was scheduled for just three days later,

March 14, 2016. (Id. at 8). Instead of pursuing his release, Plaintiff told Novoa that he “would like

to have the medical procedure done before his release.” (Id. at 7). Plaintiff claims Novoa cautioned,

“[T]hey don’t want you to get the surgery because it’s too costly. You can go home now or get the

surgery and jeopardize your freedom.” (Id.). Plaintiff confirmed that he “wanted the surgery first,”

and Novoa “said she would inform her supervisor.” (Id.). Plaintiff alleges that he had a similar

conversation with Lyn Lilley (“Lilley”), Woodbourne’s Superintendent, the week before the

surgery. (Id. at 8). Lilley told Plaintiff “that he could get the surgery and then be released.” (Id.).

Plaintiff presumably had the surgery. (See Opp. Br. at 8 (arguing that Plaintiff “spen[t] an

additional eight months in prison after his surgery”).

Plaintiff contacted Watkins sometime in May 2016 and the latter observed, “You should

have been released. I called the facility and informed the SORC (Mr. Essex) of the approved

address. I will make another call and inform him again.” (Id. at 10). Plaintiff and Watkins spoke

again in June and July 2016, and while Watkins “did not know what was going on,” he indicated

that “he would call the facility again.” (Id.). Plaintiff alleges no further contact between himself

and Mr. Watkins. (Id.).

At some point in May 2016, Plaintiff saw Essex “and inquired about his release.” (Id. at

8). In turn, “Essex said he would look in to [sic] the situation and get back to plaintiff.” (Id.).

Although Plaintiff saw “Essex on several occasions” thereafter, Essex refused to engage him. (Id.).

Plaintiff maintains that Essex evaded him despite “receiving several phone calls” from Watkins

and Lilley’s June 2016 representation that “he would speak with” Essex. (Id. at 8-9). The matter

was eventually resolved after Plaintiff’s December 9, 2016 meeting with Foster. (Id. at 9; Opp.

Br. at 3). At that meeting, Foster “checked the computer,” asked Plaintiff why he was still at

Woodbourne, noted that Plaintiff’s “address was approved several times,” and commented, “[T]his

can’t continue.” (Am. Compl. at 9). Plaintiff was released shortly thereafter, on December 13,

2016. (Opp. Br. at 3). His sex offender designation was altered from a level three status to a level

two status by operation of the appellate court’s decision months later. (Am. Compl. at 6).

STANDARD OF REVIEW

I. Federal Rule of Civil Procedure 12(b)(1)

“Federal courts are courts of limited jurisdiction, and Rule 12(b)(1) requires dismissal of

an action ‘when the district court lacks the statutory of constitutional power to adjudicate it.’”

Schwartz v. Hitrons Sols., Inc., 397 F. Supp. 3d 357, 364 (S.D.N.Y. 2019) (quoting Makarova v.

United States, 201 F.3d 110, 113 (2d Cir. 2000)). “The party invoking the Court’s jurisdiction

bears the burden of establishing jurisdiction exists.” Hettler v. Entergy Enters., Inc., 15 F. Supp.

3d 447, 450 (S.D.N.Y. 2014) (citing Conyers v. Rossides, 558 F.3d 137, 143 (2d Cir. 2009)). When

deciding a motion to dismiss under Rule 12(b)(1) at the pleadings stage, “the Court ‘must accept

as true all material facts alleged in the complaint and draw all reasonable inferences in the

plaintiff’s favor.’” Id. (quoting Conyers, 558 F.3d at 143); see also Doe v. Trump Corp., 385 F.

Supp. 3d 265, 274 (S.D.N.Y. 2019).

When “the defendant moves for dismissal under Rule 12(b)(1) . . . as well as on other

grounds, the court should consider the Rule 12(b)(1) challenge first since if it must dismiss the

complaint for lack of subject matter jurisdiction, the accompanying defenses and objections

become moot and do not need to be determined.” Saint-Amour v. Richmond Org., Inc., 388 F.

Supp. 3d 277, 286 (S.D.N.Y. 2019) (quoting United States v. New York City Dep’t of Hous., Pres.

& Dev., No. 09-CV-6547, 2012 WL 4017338, at *3 (S.D.N.Y. Sept. 10, 2012)).

II. Federal Rule of Civil Procedure 12(b)(6)

A Rule 12(b)(6) motion enables a court to dismiss a complaint for “failure to state a claim

upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “To survive a motion to dismiss, 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, 678 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face “when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “The plausibility standard is

not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant

has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556). The factual allegations pled “must

be enough to raise a right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555.

“When there are well-ple[d] factual allegations, a court should assume their veracity and

then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679.

Thus, the Court must “take all well-ple[d] factual allegations as true, and all reasonable inferences

are drawn and viewed in a light most favorable to the plaintiff[].” Leeds v. Meltz, 85 F.3d 51, 53

(2d Cir. 1996). The presumption of truth, however, “‘is inapplicable to legal conclusions,’ and

‘[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice.’” Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (quoting Iqbal, 556

U.S. at 678 (alteration in original)). Therefore, a plaintiff must provide “more than labels and

conclusions” to show entitlement to relief. Twombly, 550 U.S. at 555.

A complaint submitted by a pro se plaintiff, “however inartfully ple[d], must be held to

less stringent standards than formal pleadings drafted by lawyers . . . .” Estelle v. Gamble, 429

U.S. 97, 106 (1976) (quoting Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (internal quotation

marks omitted)). Because pro se plaintiffs “‘are often unfamiliar with the formalities of pleading

requirements,’ courts must ‘apply a more flexible standard in determining the sufficiency of a pro

se [complaint] than they would in reviewing a pleading submitted by counsel.’” Smith v. U.S. Dep’t

of Justice, 218 F. Supp. 2d 357, 361 (W.D.N.Y. 2002) (quoting Platsky v. Cent. Intelligence

Agency, 953 F.2d 26, 28 (2d Cir. 1991) (alteration in original)). While “[p]ro se complaints are

held to less stringent standards than those drafted by lawyers, even following Twombly and Iqbal,”

dismissal is proper “where a plaintiff has clearly failed to meet minimum pleading requirements.”

Thomas v. Westchester Cty., No. 12-CV-6718, 2013 WL 3357171, at *2 (S.D.N.Y. July 3, 2013)

(internal citations omitted); see also Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (“Even

in a pro se case . . . ‘although a court must accept as true all of the allegations contained in a

complaint, that tenet is inapplicable to legal conclusions, and threadbare recitals of the elements

of a cause of action, supported by mere conclusory statements, do not suffice.’” (quoting Harris,

572 F.3d at 72)).

Therefore, while the Court must “draw the most favorable inferences that [a plaintiff’s]

complaint supports, [it] cannot invent factual allegations that [a plaintiff] has not pled.” Chappius,

618 F.3d at 170. The Court has also a duty to interpret “the pleadings of a pro se plaintiff liberally

and interpret them ‘to raise the strongest arguments that they suggest.’” McPherson v. Coombe,

174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).

ANALYSIS

I. Lack of Subject-Matter Jurisdiction

The Court, as guided by precedent, turns first to the Served Defendants’ two arguments

regarding the lack of subject-matter jurisdiction and dismissal required under Rule 12(b)(1).

A. New York Correction Law § 24

The Served Defendants argue first that, although Plaintiff does not allege specifically any

tort claims under New York State law, to the extent Plaintiff may be construed to do so, this Court

must dismiss those claims for want of subject-matter jurisdiction. (Def. Br. at 16).

New York Correction Law § 24 provides, in pertinent part:

1. No civil action shall be brought in any court of the state, except

by the attorney general on behalf of the state, against any officer

or employee of the department, which for purposes of this

section shall include members of the state board of parole, in his

or her personal capacity, for damages arising out of any act done

or the failure to perform any act within the scope of the

employment and in the discharge of the duties by such officer or

employee.

2. Any claim for damages arising out of any act done or the failure

to perform any act within the scope of the employment and in

the discharge of the duties of any officer or employee of the

department shall be brought and maintained in the court of

claims as a claim against the state.

N.Y. Corr. Law §§ 24(1)-(2). “The Second Circuit has held that this provision prevents federal

courts from exercising pendent jurisdiction over state law claims appended to federal claims

brought pursuant to 42 U.S.C. § 1983.” Sughrim v. New York, No. 19-CV-7977, 2020 WL

7047697, at *21 (S.D.N.Y. Nov. 30, 2020) (quoting Hassell v. Fischer, 96 F. Supp. 3d 370, 385

(S.D.N.Y. 2015)); see also Davis v. McCready, 283 F. Supp. 3d 108, 124 (S.D.N.Y. 2017)

(concluding that “under Section 24, any tort claim arising under New York law against Defendant

must be dismissed for lack of subject matter jurisdiction”); Cruz v. New York, 24 F. Supp. 3d 299,

309 (S.D.N.Y. 2014) (“Plaintiff’s state law claims against Defendants Waters and Clark are barred

because New York Correction Law § 24 shields them from liability for state law claims in both

state and federal court.”).

Upon review of the Amended Complaint, Plaintiff does not suggest that the Served

Defendants acted outside the scope of their employment. (See generally, Am. Compl.); see also

Cruz, 24 F. Supp. 3d at 310 (explaining that “[t]he test to determine whether the defendants’

actions fall within the scope of their employment is whether the act was done while the servant

was doing the master’s work no matter how irregularly, or with what disregard of instructions”

(internal quotation marks omitted)). As such, because any state law claims stated or inferred

against the Served Defendants “would be barred in New York state courts, this Court equally lacks

jurisdiction over the claims.” Hassell, 96 F. Supp. 3d at 385. While this conclusion mandates the

dismissal of any claims under New York State law for lack of subject-matter jurisdiction under

Rule 12(b)(1), it does not impact the viability of Plaintiff’s claims for relief under federal law.

B. Eleventh Amendment

The Served Defendants’ second argument is that Plaintiff’s federal claims for relief under

42 U.S.C. § 1983 must be dismissed for want of subject-matter jurisdiction insofar as they seek

compensatory damages against the Served Defendants in their official capacities. (Def. Br. at 16-

17). This argument is based on the immunity provided by the Eleventh Amendment. (Id.).

The Eleventh Amendment provides: “The Judicial power of the United States shall not be

construed to extend to any suit in law or equity, commenced or prosecuted against one of the

United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S.

Const. amend. XI. This has been interpreted to bar suits, even those arising under federal law,

against a state by one of its own citizens. Woods v. Rondout Valley Centr. Sch. Dist. Bd. of Educ.,

466 F.3d 232, 236 (2d Cir. 2006) (citing Hans v. Louisiana, 134 U.S. 1, 15 (1890)). “[A]s a general

rule, state governments may not be sued in federal court unless they have waived their Eleventh

Amendment immunity, or unless Congress has abrogated the states’ Eleventh Amendment

immunity when acting pursuant to its authority under Section 5 of the Fourteenth Amendment.”

Nelkenbaum v. Jordy, No. 19-CV-7953, 2020 WL 7630354, at *2 (S.D.N.Y. Dec. 22, 2020)

(quoting Gollomp v. Spitzer, 568 F.3d 355, 366 (2d Cir. 2009) (alteration in original)). To that

point, it is well settled that “New York has not waived its sovereign immunity in § 1983 lawsuits,

nor has Congress abrogated the State’s immunity.” Phillips v. New York, No. 13-CV-927, 2013

WL 5703629, at *3 (N.D.N.Y. Oct. 17, 2013) (citing Vincent v. Yelich, 718 F.3d 157, 177 (2d Cir.

2013)); see also Keitt v. New York City, 882 F. Supp. 2d 412, 424 (S.D.N.Y. 2011) (“Magistrate

Judge Freeman properly concluded that Keitt’s Section 1983, 1985, and 1986 claims against the

State of New York and its agencies are barred by the [Eleventh] Amendment.”).

Consequently, because the Eleventh Amendment deprives this Court of subject-matter

jurisdiction and neither exception applies, the claims for relief under 42 U.S.C. § 1983 are

dismissed under Rule 12(b)(1) to the extent they seek relief against the Served Defendants in their

official capacities. This result, however, does not affect the federal claims against the Served

Defendants in their individual capacities.

II. Failure to State a Claim Under 42 U.S.C. § 1983

Turning to the substantive arguments made under Rule 12(b)(6), reading the Amended

Complaint liberally, Plaintiff asserts four separate claims for relief under 42 U.S.C. § 1983. That

law provides, in pertinent part, that “[e]very person who, under color of any statute . . . subjects,

or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights,

privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured

. . . .” 42 U.S.C. § 1983. “[T]his language does not create substantive rights; rather, it creates a

mechanism by which individuals can vindicate the violation of rights secured elsewhere.” Santucci

v. Levine, No. 17-CV-10204, 2021 WL 76337, at *3 (S.D.N.Y. Jan. 8, 2021). As such, in each

permutation of a claim under that law, “a plaintiff must demonstrate: ‘(1) a right secured by the

Constitution or laws of the United States was violated, and (2) the right was violated by a person

acting under color of state law, or a state actor.’” Town & Country Adult Living, Inc. v. Vill./Town

of Mount Kisco, No. 17-CV-8586, 2019 WL 1368560, at *17 (S.D.N.Y. Mar. 26, 2019) (quoting

Walker v. Clemson, No. 11-CV-9623, 2012 WL 2335865, at *3 (S.D.N.Y. June 20, 2012)).

The Served Defendants advance a variety of arguments as to why Plaintiff’s four federal

claims for relief should be dismissed. The Court addresses these arguments seriatim.

A. All Claims for Relief: Personal Involvement

As a fundamental prerequisite, “[t]o establish a § 1983 claim, a plaintiff must show the

defendants’ personal involvement in the alleged constitutional violation.” Boley v. Durets, 687 F.

App’x 40, 41 (2d Cir. 2017) (citing Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994)); see also

Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020) (noting that supervisory liability requires

that the “defendant, through the official’s own individual actions, has violated the Constitution”

(quoting Iqbal, 556 U.S. at 676)); Greene v. Sampson, No. 18-CV-6103, 2021 WL 355477, at *4

(S.D.N.Y. Feb. 2, 2021). Failing to allege that a defendant was personally involved in, or

responsible for, the conduct complained of renders a complaint fatally defective on its face. Alfaro

Motors, Inc. v. Ward, 814 F.2d 883, 886 (2d Cir. 1987) (internal quotation marks omitted). Plaintiff

fails to plead the Served Defendants’ personal involvement in any constitutional violation.

With respect to Novoa, her role is limited to: (1) advising Plaintiff in August 2015 that

Watkins would be his Parole Officer; (2) informing McPherson that Plaintiff could not reside with

a minor; (3) cautioning Plaintiff that deciding to remain incarcerated in order to have the

unspecified surgery “could jeopardize [his] freedom;” and (4) informing Plaintiff that “they” did

not want Plaintiff to have the surgery. (Am. Compl. at 6-7, 9, 16). None of these allegations suggest

plausibly that Novoa took any action preventing Plaintiff’s release. See generally Peterson v.

Tomaselli, 469 F. Supp. 2d 146, 163 (S.D.N.Y. 2007) (dismissing Eighth Amendment claim on

summary judgment and finding, inter alia, that the plaintiff has “not established a causal

connection between any of [the defendant’s] actions and plaintiff’s extended incarceration”). Even

the alleged interaction between Novoa and McPherson is insufficient; indeed, Plaintiff does not

explain Novoa’s role or her authority, and he pled that he was in regular communication with

Watkins, who, in turn, was focused on “finding [him] suitable housing.” (Am. Compl. at 9).

As for Essex, his role is limited to being an ORC Supervisor. Reading the Amended

Complaint broadly, Plaintiff alleged that: (1) he complained to Essex in May 2016 about the delay

in being released; (2) Essex said he would “look in to [sic]” Plaintiff’s complaint, but never

followed up; (3) Watkins called Essex about Plaintiff’s delay in release; and (4) Lilley said he

would call Essex. (Am. Compl. at 8-10). Such allegations, without more, do not plead Essex’s

personal involvement in any constitutional violation. See, e.g., Oh v. Saprano, No. 20-CV-237,

2020 WL 4339476, at *7 (D. Conn. July 27, 2020) (alleging that five defendants “said they would

look into it, but nothing happened” was insufficient for inmate to allege defendants’ personal

involvement in a constitutional deprivation); Malik v. City of New York, No. 11-CV-6062, 2012

WL 3345317, at *15 (S.D.N.Y. Aug. 15, 2012) (complaint to jail superintendent was “insufficient

to make out a prima facie claim of personal involvement against supervisors”), adopted by 2012

WL 4475156 (S.D.N.Y. Sept. 28, 2012).

Accordingly, as Plaintiff failed to plead facts suggesting that the Served Defendants were

personally involved in any constitutional violation, none of his federal claims can survive.

Nevertheless, even if the Court assumed that Plaintiff pled the Served Defendants’ personal

involvement, each claim for relief suffers from its own independent shortcomings that provide a

separate basis for dismissal under Rule 12(b)(6).

B. Cruel and Unusual Punishment Claim for Relief (Eighth Amendment)

The Eighth Amendment instructs: “Excessive bail shall not be required, nor excessive fines

imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend. VIII. “To state an

Eighth Amendment claim, a prisoner must allege two elements, one subjective and one objective.

First, the prisoner must allege that the defendant acted with a subjectively sufficiently culpable

state of mind. Second, he must allege that the conduct was objectively harmful enough or

sufficiently serious to reach constitutional dimensions.” Crawford v. Cuomo, 796 F.3d 252, 256

(2d Cir. 2015) (internal citations and quotation marks omitted); see also Hogan v. Fischer, 738

F.3d 509, 515 (2d Cir. 2013). “For extended incarceration to rise to the level of an Eighth

Amendment violation, it must . . . be the product of deliberate indifference.” D’Angelo v. Annucci,

No. 16-CV-6459, 2017 WL 6514692, at *10 (S.D.N.Y. Dec. 19, 2017) (alteration in original,

internal quotation marks omitted). However, “to prevail on such claims, plaintiffs must normally

allege that they were held beyond their maximum sentence.” Joseph v. Cuomo, No. 20-CV-3957,

2021 WL 200984, at *9 (E.D.N.Y. Jan. 20, 2021); see also Flowers v. Annucci, No. 19-CV-0925,

2019 WL 5596361, at *2 (N.D.N.Y. Oct. 30, 2019) (dismissing the plaintiff’s Eighth Amendment

claim because the complaint “lack[ed] any allegations which plausibly suggest that plaintiff

remained in DOCCS’ custody beyond his maximum state court sentence”); D’Angelo, 2017 WL

6514692, at *10 (“Even if the Court were to find that Plaintiff had met the deliberate indifference

requirement, the Complaint would still fail to plausibly state an Eighth Amendment claim given

that Plaintiff was not held beyond his maximum sentence” (emphasis in original)).

The maximum expiration date of Plaintiff’s sentence was November 26, 2035, some fifteen

years hence. (See Inmate Lookup.)6 As such, even if the Court were to assume that Plaintiff pled

facts necessary to establish the Served Defendants acted with deliberate indifference to keep him

in custody—which he has not done—the claim would still have to be dismissed because it is

6 This conclusion would be the same if the Court considered only Plaintiff’s allegations as to his sentences.

Plaintiff pled that he was convicted in 1984 and sentenced to a term of imprisonment of “9 to 18 years,

which was to run consecutive[ly] to a term of 25 years he received on an unrelated robbery conviction.”

(Am. Compl. at 5). Using these numbers (a sentence with a maximum term of eighteen years to be followed

consecutively by a sentence with a maximum term of twenty-five years), Plaintiff’s earliest maximum

release date would be in 2027.

impossible for Plaintiff to claim that he was incarcerated beyond his maximum sentence. As such,

Plaintiff’s Eighth Amendment claim for relief is dismissed for failure to state a claim.7

C. Denial of Procedural Due Process Claim for Relief (Fourteenth Amendment)

The Fourteenth Amendment provides that “[n]o State shall . . . deprive any person of life,

liberty, or property, without due process of law . . . .” U.S. Const. amend. XIV § 1. “[T]o present

a [procedural] due process claim, a plaintiff must establish (1) that he possessed a liberty interest

and (2) that the defendant(s) deprived him of that interest as a result of insufficient process.”

Joseph, 2021 WL 200984, at *6 (quoting Adams v. Annucci, No. 17-CV-3794, 2018 WL 4608216,

at *6 (S.D.N.Y. Sept. 25, 2018) (alterations in original)); see also Velazquez v. Gerbing, No. 18-

CV-8800, 2020 WL 777907, at *9 (S.D.N.Y. Feb. 18, 2020). For this claim, while the Court may

infer facts establishing the first element, Plaintiff offers no information as to the second.

“[W]hile there is no inherent federal right to parole, states are able to create a liberty interest

that is protected by the Due Process Clause of the Fourteenth Amendment for inmates.” Hayes v.

Annucci, No. 14-CV-8845, 2016 WL 1746109, at *2 (S.D.N.Y. Apr. 29, 2016). “[I]n order to have

a protectable liberty interest, a prisoner must have more than a hope or a unilateral expectation of

release. He must, instead, have a legitimate claim of entitlement to it.” Victory v. Pataki, 814 F.3d

47, 59 (2d Cir. 2016) (quoting Green v. McCall, 822 F.2d 284, 288 (2d Cir. 1987)). Here, Plaintiff

says he was granted parole in June 2015, but does not provide a date on which he would have been

released. (Am. Compl. at 6). Presumably, given Plaintiff’s status as a sex offender and the

7 The Court notes that the Second Circuit’s recent holding in Hurd v. Fredenburgh, 984. F.3d 1075 (2d Cir.

2021) does not alter this determination. There, the Circuit concluded that the District Court erred in finding

that the plaintiff “failed to allege a harm of constitutional magnitude because he was released before his

maximum sentence expired.” Id. That case concerned the application N.Y. Penal Law § 70.40(1)(b) and

incarceration beyond the plaintiff’s “conditional release date,” a date calculated based on time served and

time credited for good behavior. Id. As observed by the Circuit, “conditional release under New York law

is unlike parole, which is a discretionary decision reserved to the judgment of the parole board.” Id.

requirement to find proper housing for him prior to being released, that date would qualify as an

“open release date.” See People ex rel. Johnson v. Superintendent, Adirondack Corr. Facility, ---

N.E.3d ---, 2020 WL 6828834, at *1 n.1 (N.Y. Nov. 23, 2020) (explaining that “[a]n open parole

date or open date is the earliest possible release date,” and that “[t]his date is contingent upon the

inmate receiving an approved residence in accordance with established residency restrictions and

local laws” (internal quotation marks omitted)); De Zimm v. New York State Bd. of Parole, 524

N.Y.S.2d 851, 851 n.1 (App. Div. 1988) (“An open parole release date means an inmate may be

released as soon after that date as a satisfactory parole program becomes available.”). In short, “a

New York inmate who has been granted an open parole release date has a legitimate expectancy

of release that is grounded in New York’s regulatory scheme.” Victory, 814 F.3d at 60.

However, even if the Court assumes correctly that Plaintiff was given an open release date

and therefore had a protected liberty interest in his release, see Williams, 49 N.Y.S.3d at 673

(noting “an open release date of July 21, 2015”), Plaintiff offers no account of how any procedures

were constitutionally insufficient (see generally Am. Compl.). Rather, Plaintiff cites to segments

of the New York Administrative Code and argues that Novoa’s interaction with McPherson

constituted a “special condition” that could be imposed only by the Parole Board.8 (Opp. Br. at 3,

6). Even if the Court assumes arguendo that Plaintiff pled facts establishing that Novoa imposed

a special condition on Plaintiff’s release—something he has not done—Plaintiff offers no basis to

conclude that the condition violated the Constitution, only that its imposition allegedly violated

New York laws or regulations. It is well-established that a violation of state law, without more,

does not plead constitutionally insufficient procedures. See, e.g., Russell v. Coughlin, 910 F.2d 75,

8 The fact that Plaintiff refers only to those regulations that could be associated with Novoa’s conduct

underscores Essex’s lack of personal involvement with respect to this claim.

78 n.1 (2d Cir. 1990) (“Federal constitutional standards rather than state law define the

requirements of procedural due process.”); Furman v. Rich, No. 19-CV-2748, 2020 WL 3975469,

at *3 (E.D.N.Y. July 14, 2020) (noting that a process’ sufficiency is “measured, for purposes of

[a] due-process claim, against the U.S. Constitution—not state law, the Stipulation between the

parties, or another standard”); Holland v. City of New York, 197 F. Supp. 3d 529, 548-49 (S.D.N.Y.

2016) (“It is well settled that a § 1983 claim brought in federal court is not the appropriate forum

to urge violations of prison regulations or state law.” (internal quotation marks omitted)).

Consequently, even if the Court infers that Plaintiff stated a protected liberty interest in an

open release date in July 2015, he has not provided any facts specifying how any procedure

preventing him from being released was constitutionally insufficient (or how the Served

Defendants were personally involved in that deprivation). This claim is dismissed.

D. Denial of Equal Protection Claim for Relief (Fourteenth Amendment)

The Fourteenth Amendment provides also that “[n]o State shall . . deny to any person

within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV § 1. “This

provision is essentially a direction that all persons similarly situated should be treated alike.”

Santucci, 2021 WL 76337, at *4 (internal quotation marks omitted). “Although the prototypical

equal protection claim involves discrimination against people based on their membership in a

vulnerable class, [the Second Circuit] ha[s] long recognized that the equal protection guarantee

also extends to individuals who allege no specific class membership but are nonetheless subjected

to invidious discrimination at the hands of government officials.” Lopes v. Westchester Cty., No.

18-CV-8205, 2020 WL 7029002, at *7 (S.D.N.Y. Nov. 30, 2020) (quoting Harlen Assocs. v. Inc.

Vill. of Mineola, 273 F.3d 494, 499 (2d Cir. 2001) (alterations in original)). A claim for the

violation of Plaintiff’s right to equal protection may proceed in two scenarios: (1) selective

enforcement; or (2) class of one. Id. at *7 (quoting Vaher v. Town of Orangetown, 916 F. Supp.

2d 404, 433 (S.D.N.Y. 2013)); see also Marom v. Town of Greenburgh, No. 18-CV-7637, 2020

WL 4891339, at *4 (S.D.N.Y. Aug. 19, 2020)).

To proceed on a selective enforcement theory, plaintiffs “must plausibly allege that any

selective treatment they experienced ‘was motivated by an intention to discriminate on the basis

of impermissible considerations, such as race or religion, to punish or inhibit the exercise of

constitutional rights, or by a malicious or bad faith intent to injure [them].’” Lilakos v. New York

City, 808 F. App’x 4, 8 (2d Cir. 2020) (quoting Zahra v. Town of Southold, 48 F.3d 674, 683 (2d

Cir. 1995) (alteration in original)). As for a class of one theory, “the plaintiff must allege that (i)

no rational person could regard the circumstances of the plaintiff to differ from those of a

comparator to a degree that would justify the differential treatment on the basis of a legitimate

governmental policy; and (ii) the similarity in circumstances and different in treatment are

sufficient to exclude the possibility that the defendants acted on the basis of a mistake.” Lopes,

2020 WL 7029002, at *8 (quoting Fahs Constr. Grp., Inv. v. Gray, 725 F.3d 289, 292 (2d Cir.

2013)). Although both theories require a different level of specificity as to comparators against

whom Plaintiff’s treatment may be contrasted, under either theory Plaintiff must plead facts

pertaining to comparable individuals. See Hu v. City of New York, 927 F.3d 81, 93 (2d Cir. 2019)

(explaining that a selective enforcement theory requires comparators with a “reasonably close

resemblance” and that a class of one theory necessitates comparators with an “extremely high”

level of similarity (internal quotation marks omitted)).

Although the question of “whether two comparators are similarly situated is [generally] a

factual issue that should be submitted to the jury,” Marom v. Town of Greenburgh, No. 18-CV-

7637, 2020 WL 978514, at *6 (S.D.N.Y. Feb. 28, 2020) (quoting LTTR Home Care, LLC v. City

of Mount Vernon Indus. Dev. Agency, No. 17-CV-9885, 2019 WL 4274375, at *12 (S.D.N.Y. Sept.

10, 2019) (alteration in original)), on a Rule 12(b)(6) motion the Court “must determine whether,

based on a plaintiff's allegations in the complaint, it is plausible that a jury could ultimately

determine that the comparators are similarly situated.” Vaher, 916 F. Supp. 2d at, 434 (quoting

Mosdos Chofetz Chaim, Inc. v. Vill. of Wesley Hills, 815 F. Supp. 2d 679, 697-98 (S.D.N.Y. 2011)).

This claim must be dismissed because Plaintiff fails to plead the existence of any

comparators with any specificity. Rather, Plaintiff pled that he was “denied his liberty and equal

protected as similar [sic] situated prisoners. Once a prisoner is granted parole, and an address is

approved, he or she should be released.” (Am. Compl. at 16-17). These allegations are conclusory,

complain about comparators in the abstract—individuals who, among other things, may or may

not be sex offenders—and provide no basis to believe that a jury would conclude that Plaintiff

bore a “reasonably close resemblance” to those individuals, much less an “extremely high” level

of similarity. As Plaintiff failed to plead with specificity the existence of any comparator, a

component required under either equal protection theory, the claim must be dismissed.

E. Retaliation (First Amendment)

“[T]o sustain a First Amendment retaliation claim, a prisoner must demonstrate the

following: (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.” Randle v. Alexander, No. 10-CV-9235, 2011 WL 1226228, at *2

(S.D.N.Y. Mar. 22, 2011) (quoting Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir. 2004)). An

action is “adverse” when it “would deter a similarly situated individual of ordinary firmness from

exercising his or her constitutional rights . . . .” Ruggiero v. Cty. of Orange, No. 19-CV-3632, 2020

WL 5096032, at *7 (S.D.N.Y. Aug. 28, 2020) (quoting Davis v. Goord, 320 F.3d 346, 353 (2d Cir.

2003)). Conduct short of this standard is “simply de minimis and . . . outside the ambit of

constitutional protection.” Id. (quoting Davis, 320 F.3d at 353). Likewise, under the third element,

the “allegations must support an inference that the protected conduct was ‘a substantial or

motivating factor for the adverse actions taken by prison officials.’” Dorsey v. Fisher, 468 F.

App’x 25, 27 (2d Cir. 2012) (quoting Bennett v. Goord, 343 F.3d 133, 137 (2d Cir. 2003)). Bearing

in mind that “[c]ourts properly approach prisoner retaliation claims with skepticism and particular

care[] because virtually any adverse action taken against a prisoner by a prison official . . . can be

characterized as a constitutionally proscribed retaliatory act,” Davis, 320 F.3d at 352 (internal

quotation marks omitted), “[c]onclusory allegations will not suffice; instead, a prisoner’s claim for

retaliation must be supported by specific and detailed factual allegations.” Vogelfang v. Capra,

889 F. Supp. 2d 489, 517 (S.D.N.Y. 2012) (internal quotation marks omitted)

Plaintiff alleged that he “was retaliated against for having the surgery done prior to his

release (and complaints).” (Am. Compl. at 16). Specifically, he insists that “defendants took

adverse action against him by not process [sic] his paper work [sic] causing [him] to spend an

additional eight months in prison after his surgery.” (Opp. Br. at 8; see also Am. Compl. at 16

(“Essex, Novoa, and Foster did not process . . . release papers[] in a timely manner”)). Even if the

Court assumes that Plaintiff’s request to remain incarcerated in order to have DOCCS pay for his

surgery qualified as a protected activity, he offers no specificity as to: how extended incarceration

“would deter a similarly situated individual” from making the same request he made (aware that

his time in prison could be extended); when the adverse action occurred; what roles the Served

Defendants played in the adverse action; a causal connection between the request and adverse

action; the earliest he could have been released after surgery; whether the Served Defendants had

authority to keep or release him; or when Essex knew Plaintiff chose to prolong his incarceration.

“Where, as here, the plaintiff alleges the ultimate fact of retaliation in a conclusory and speculative

manner, he fails to state a claim for retaliation.” Dorsey, 468 F. App’x at 27.

As Plaintiff offers nothing but conclusory allegations suggesting only the theoretical

possibility that the Served Defendants retaliated against him, the claim is dismissed.9

CONCLUSION

Based upon the foregoing, the Served Defendants’ motion to dismiss is GRANTED

without prejudice. Should he be so advised, Plaintiff may file a Second Amended Complaint within

thirty days from the date of this Order to address the pleading deficiencies identified herein. Failure

to file a Second Amended Complaint within thirty days will result in dismissal of the claims for

relief against the Served Defendants with prejudice. Plaintiff is reminded that if he chooses to file

a Second Amended Complaint, the Second Amended Complaint will completely replace, not

supplement, the Complaint and Amended Complaint. Therefore, any facts or claims that Plaintiff

wishes to maintain must be included in the Second Amended Complaint.

The Clerk of the Court is respectfully directed to mail a copy of this Memorandum Opinion

and Order to Plaintiff and terminate the motion sequence pending at Doc. 20.

SO ORDERED:

Dated: New York, New York

February 5, 2021

PHILIP M. HALPERN

United States District Judge

9 The Served Defendants make two additional arguments. First, they argue for dismissal of any “declaratory

relief claims . . . .” (Def. Br. at 19). While the Court does not construe the Amended Complaint to seek such

relief, because the federal claims against the Served Defendants have been dismissed, any attendant

declaratory judgment claim is also dismissed. See Porat v. Lincoln Towers Cmty. Ass’n, No. 04-CV-3199,

2005 WL 646093, at *7 (S.D.N.Y. Mar. 21, 2005), aff’d, 464 F.3d 274 (2d Cir. 2006). Second, they argue

that they are shielded by qualified immunity. (Def. Br. at 17-18). Given the conclusions reached herein, the

Court need not and does not reach that issue.