Dowling v. Venable

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

ERIC R. DOWLING,

Plaintiff,

-against- 21-CV-5281 (LTS)

P.O. CHRISTIANA VENABLE; S.P.O. ORDER OF DISMISSAL

KENNEDY; WITNESS CASTILLO,

Defendants.

LAURA TAYLOR SWAIN, Chief United States District Judge:

Plaintiff, who is currently detained at the Anna M. Kross Correctional Facility on Rikers

Island, brings this pro se action under 42 U.S.C. § 1983, alleging that Defendants violated his

federal constitutional rights during his parole revocation proceedings. By order dated July 14,

2021, the Court granted Plaintiff’s request to proceed without prepayment of fees, that is, in

forma pauperis (“IFP”). For the following reasons, the Court dismisses this action for failure to

state a claim, with 30 days’ leave to replead.

STANDARD OF REVIEW

The Prison Litigation Reform Act requires that federal courts screen complaints brought

by prisoners who seek relief against a governmental entity or an officer or employee of a

governmental entity. See 28 U.S.C. § 1915A(a). The Court must dismiss a prisoner’s complaint,

or any portion of the complaint, that is frivolous or malicious, fails to state a claim upon which

relief may be granted or seeks monetary relief from a defendant who is immune from such relief.

28 U.S.C. §§ 1915(e)(2)(B), 1915A(b); see Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007).

The Court must also dismiss a complaint if the Court lacks subject matter jurisdiction. See Fed.

R. Civ. P. 12(h)(3).

While the law mandates dismissal on any of these grounds, the Court is obliged to

construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret

them to raise the “strongest [claims] that they suggest,” Triestman v. Fed. Bureau of Prisons, 470

F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in

original). But the “special solicitude” in pro se cases, id. at 475 (citation omitted), has its limits –

to state a claim, pro se pleadings still must comply with Rule 8 of the Federal Rules of Civil

Procedure, which requires a complaint to make a short and plain statement showing that the

pleader is entitled to relief.

The Supreme Court has held that, under Rule 8, a complaint must include enough facts to

state a claim for relief “that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007). A claim is facially plausible if the plaintiff pleads enough factual detail to allow the

Court to draw the inference that the defendant is liable for the alleged misconduct. In reviewing

the complaint, the Court must accept all well-pleaded factual allegations as true. Ashcroft v.

Iqbal, 556 U.S. 662, 678-79 (2009). But it does not have to accept as true “formulaic

recitation[s] of the elements of a cause of action,” which are essentially just legal conclusions.

Twombly, 550 U.S. at 555. After separating legal conclusions from well-pleaded factual

allegations, the Court must determine whether those facts make it plausible – not merely possible

– that the pleader is entitled to relief. Id.

BACKGROUND

Plaintiff originally filed his complaint in the Eastern District of New York. (ECF 1, filed

on May 4, 2021.) By order dated June 14, 2021, the Eastern District transferred the action to this

Court without considering the merits of Plaintiff’s complaint or his request to proceed IFP. (ECF

4, at 2.) Plaintiff names as Defendants Parole Officer (P.O.) Venable, Special Parole Officer

(S.P.O.) Kennedy, and “Witness” Castillo.1 (ECF 1, at 1.)

The following allegations are taken from the complaint: on March 22, 2021, at 11:00

a.m., Plaintiff’s parole officer, Venable, arrested Plaintiff for a parole violation.2 (Id. at 3-4.) On

March 25, 2021, at 3:00 p.m., Plaintiff received his “final hearing” paperwork.3 (Id. at 4.)

Plaintiff alleges that, according to New York State procedures, Venable was required to serve the

paperwork within 72 hours of the arrest. (Id. at 3.) Plaintiff further alleges that, because the

parole violation warrant “has not been lifted” and he has not been released, he has suffered

“mentally . . . thinking the law [would] do[ ] the rightful thing.” (Id. at 4.)

Plaintiff requests to have “[his] warrant lifted or [a] lawsuit due to unlawful

imprisonment” and to be released. (Id. at 5.)

DISCUSSION

Because Plaintiff alleges that Defendants violated his federal constitutional rights, the

Court construes Plaintiff’s allegations as asserting claims under 42 U.S.C. § 1983. To state a

claim under section 1983, a plaintiff must allege both that: (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

the color of state law, or a “state actor.” West v. Atkins, 487 U.S. 42, 48-49 (1988).

1 Plaintiff names Venable, Kennedy, and Castillo in the caption of the complaint but does

not name Kennedy in the “Defendants” section of the complaint. In light of Plaintff’s pro se

status, the Court construes the complaint as asserting claims against all three Defendants.

2 Plaintiff does not specify his parole violation charges.

3 Plaintiff does not specify who served him his final hearing paperwork, but presumably

it was Venable.

A. Claims against S.P.O. Kennedy and Witness Castillo

To state a claim under section 1983, a plaintiff must allege facts showing the defendants’

direct and personal involvement in the alleged constitutional deprivation. See Spavone v. N.Y.

State Dep’t of Corr. Serv., 719 F.3d 127, 135 (2d Cir. 2013) (“It is well settled in this Circuit that

personal involvement of defendants in the alleged constitutional deprivations is a prerequisite to

an award of damages under § 1983.”) (internal quotation marks omitted). A defendant may not

be held liable under section 1983 solely because that defendant employs or supervises a person

who violated the plaintiff’s rights. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (“Government

officials may not be held liable for the unconstitutional conduct of their subordinates under a

theory of respondeat superior.”). Rather, “[t]o hold a state official liable under § 1983, a plaintiff

must plead and prove the elements of the underlying constitutional violation directly against the

official.” Tangreti v. Bachmann, 983 F.3d 609, 620 (2d Cir. 2020).

Here, Plaintiff does not allege any facts describing how S.P.O. Kennedy or Witness

Castillo were personally involved in the events underlying his claims. Plaintiff does not even

reference these two Defendants in the body of the complaint. The Court therefore dismisses

Plaintiff’s claims against Kennedy and Castillo for failure to state a claim on which relief may be

granted. See 28 U.S.C. § 1915(e)(2)(B)(ii).

B. Claims against P.O. Venable

Plaintiff alleges that P.O. Venable violated his federal constitutional rights by failing to

serve him his parole revocation hearing paperwork in time. Since Venable is a state official, the

Court considers whether she is entitled to some degree of immunity from section 1983 damages

liability for her actions. “[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 . . . .” Gollomp v. Spitzer, 568 F.3d 355, 366 (2d Cir.

2009). “The immunity recognized by the Eleventh Amendment extends beyond the states

themselves to state agents and state instrumentalities that are, effectively, arms of a state.” Id.

New York has not waived its Eleventh Amendment immunity to suit in federal court, and

Congress did not abrogate the states’ immunity in enacting 42 U.S.C. § 1983. See Trotman v.

Palisades Interstate Park Comm’n, 557 F.2d 35, 40 (2d Cir. 1977).

Generally, state officials, such as parole officers, have absolute immunity for “judicial

acts” and “acts that are prosecutorial in nature.” Scotto v. Almenas, 143 F.3d 105, 110 (2d Cir.

1998). However, when they perform acts that are “administrative or investigatory in nature,”

they only have qualified immunity, meaning that they are shielded from liability only insofar as

their conduct does not violate “clearly established constitutional norms of which an objectively

reasonable person should have been aware.” Id. at 110-13. Therefore, parole officers receive

absolute immunity for their decisions to “grant, deny, or revoke parole,” which are judicial tasks,

as well as for their actions in “initiating parole revocation proceedings” and “presenting the case

for revocation to hearing officers,” which are prosecutorial acts. Id. at 111-12. But they receive

only qualified immunity for preparing violation reports and recommending an arrest warrant. Id.

at 112.

Here, it is unclear which type of immunity would apply to Venable because Plaintiff does

not provide facts about Venable’s involvement in his parole revocation proceedings other than

alleging that she served him late. In any event, as discussed below, even if Venable is only

entitled to qualified immunity, Plaintiff fails to allege facts sufficient to suggest that Venable

violated his “clearly established” constitutional rights.

C. Challenge to Parole Revocation Proceedings

Plaintiff brings this action challenging his parole revocation proceedings. The gravamen

of Plaintiff’s complaint is that Venable failed to serve him his final hearing paperwork4 within

72 hours of the arrest. Because Plaintiff alleges that Venable failed to follow state procedures,

the Court construes the complaint as asserting a due process claim under the Fourteenth

Amendment.

The Fourteenth Amendment provides, in pertinent part, that “[n]o State shall . . . deprive

any person of life, liberty, or property, without due process of law . . . .” U.S. Const. amend. XIV

§ 1. “The two threshold questions in any § 1983 claim for denial of procedural due process are

whether the plaintiff possessed a liberty or property interest protected by the United States

Constitution or federal statutes, and, if so, what process was due before plaintiff could be

deprived of that interest.” Green v. Bauvi, 46 F.3d 189, 194 (2d Cir. 1995) (citing Logan v.

Zimmerman Brush Co., 455 U.S. 422, 428 (1982)).

The Court considers first the existence of a liberty interest. The Supreme Court has held

that the revocation of parole implicates a protectable liberty interest. See Morrissey v. Brewer,

408 U.S. 471, 482 (1972) (“[T]he liberty of a parolee, although indeterminate, includes many of

the core values of unqualified liberty and its termination inflicts a ‘grievous loss’ on the parolee

and often on others . . . [T]he liberty is valuable and must be seen as within the protection of the

Fourteenth Amendment.”); see also Suce v. Taylor, 572 F. Supp. 2d 325, 334 (S.D.N.Y 2008)

(“[T]he Due Process Clause of the Fourteenth Amendment applies to the revocation of parole.”)

4 Generally, after issuance of a parole violation warrant, a parolee’s parole revocation

proceedings begin with a preliminary hearing. Plaintiff does not specify why he was served

paperwork for a final hearing as opposed to a preliminary hearing. However, the Court notes that

state law allows the parolee to waive the right to a preliminary hearing. See N.Y. Exec. Law

§ 259-i(3)(d); N.Y. Comp. Codes R. & Reg. tit. 9, § 8004.3.

(citing Greenholtz v. Inmates of the Neb. Penal & Corr. Complex, 442 U.S. 1, 9 (1979)).

However, the liberty interest is a limited one: “not . . . the absolute liberty to which every citizen

is entitled, but only . . . the conditional liberty properly dependent on observance of special

parole restrictions.” Morrissey, 408 U.S. at 480.

Once it is determined that a liberty interest is implicated, the question remains what

process is due before a plaintiff may be deprived of that interest. The Supreme Court in

Morrissey outlined what due process requires in the parole revocation setting. A preliminary

hearing should be conducted “at or reasonably near the place of the alleged parole violation or

arrest and as promptly as convenient after arrest.” Id. at 485. “The parolee should be given notice

that the [preliminary] hearing will take place and that its purpose is to determine whether there is

probable cause to believe he has committed a parole violation. The notice should state what

parole violations have been alleged.” Id. at 487. “There must also be an opportunity for a [final

parole revocation] hearing” conducted “within a reasonable time after the parolee is taken into

custody.” Id. at 488. The “minimum requirements of due process” for the final hearing include:

(a) written notice of the claimed violations of parole; (b) disclosure to the parolee

of evidence against him; (c) opportunity to be heard in person and to present

witnesses and documentary evidence; (d) the right to confront and cross-examine

adverse witnesses (unless the hearing officer specifically finds good cause for not

allowing confrontation); (e) a “neutral and detached” hearing body . . . and (f) a

written statement by the factfinders as to the evidence relied on and reasons for

revoking parole.

Id. at 489. “[T]he Supreme Court has not articulated any additional due process requirements for

parole revocation proceedings.” Suce, 572 F. Supp. 2d, at 334.

Here, Plaintiff’s allegations can be construed as challenging the timeliness of the “written

notice of the claimed violations of parole” in accordance with Morrissey, 408 U.S. at 489. Under

New York State parole procedures, N.Y. Exec. Law § 259-i(3)(c)(iii), an alleged parole violator

must be given notice of a preliminary parole hearing within three days of a warrant’s execution.5

The constitutional due process requirements laid out in Morissey contain no equivalent three-day

rule. To the extent that Morissey specifies any timing constraints of parole revocation

proceedings, those constraints only concern the timeliness of the hearings rather than notice of

the hearings. See Morissey, 408 U.S. at 485, 488. In interpreting Morissey’s notice requirement

and determining what kind of notice is “sufficient to allow the [parolee] to prepare to defend

against the charges” at the parole revocation hearings, the Second Circuit has, therefore, focused

only on the content rather than the timing of the hearing notice, finding the notice

constitutionally sufficient where it identifies the condition allegedly violated and describes the

basic underlying facts of the alleged violation. See United States v. Chatelain, 360 F.3d 114, 121

(2d Cir. 2004); see also Miller v. Hadden, 811 F.2d 743, 747 (2d Cir. 1987) (“[D]ue process

requires that a parolee threatened with parole revocation receive notice of the charges against

him and the factual basis for those charges.”); U.S. ex rel. Carson v. Taylor, 540 F.2d 1156, 1160

(2d Cir. 1976) (finding due process violation when the notice given to plaintiff failed to include

one of the parole violation charges against him).

Plaintiff does not allege that Venable failed to provide him with notice of his parole

violation hearing. Nor does Plaintiff allege any facts suggesting that the notice he received

5 There is some confusion about whether the execution of the warrant and the arrest of the

parolee are treated as the same event. Compare Parker v. Chin, No. 04-CV-3901, 2006 WL

1379613, at *3 (S.D.N.Y. May 18, 2006) (“The warrant may be executed, i.e., the parolee may

be arrested, by any parole officer, police officer, or any other officer authorized to serve criminal

process.”), with People ex rel. Dolberry v. Warden, Rikers Island Corr. Facility, 16 Misc.3d

1126(A), 2007 WL 2376163, at *1 (N.Y. Sup. Ct. 2007) (“[Plaintiff] initially claims that he did

not receive a written notice of his right to a preliminary parole hearing within 72 hours of his

arrest . . . That claim is unavailing. [N.Y. Exec. Law § 259-i(3)(c)(iii)] requires only that the

alleged violator be given notice of the preliminary hearing within three days of execution of the

parole warrant.”).

inadequately advised him of the charges against him and the factual basis for those charges.

Because Plaintiff fails to allege any facts suggesting a denial of the constitutional due process

requirements laid out in Morissey, he fails to state a due process claim under the Fourteenth

Amendment. Rather his claim raises only a state law issue.6 The violation of state law, without

more, does not give rise to a claim under section 1983. Pollnow v. Glennon, 757 F.2d 496, 501

(2d Cir. 1985) (“[A] violation of state law is not cognizable under § 1983.”); e.g., Davis v. N.Y.

State Div. of Parole, No. 07-CV-5544, 2008 WL 3891524, at *5 (S.D.N.Y. Aug. 20, 2008) (“[A]

claim of a violation of a state law procedural requirement does not give rise to a section 1983

claim in the absence of a constitutional violation.”); Rivera v. Wohlrab, 232 F. Supp. 2d 117, 123

(S.D.N.Y. 2003) (“Violations of state law procedural requirements do not alone constitute a

deprivation of due process since federal constitutional standards rather than state law define the

requirements of procedural due process.”) (internal quotation omitted); see also Holcomb v.

Lykens, 337 F.3d 217, 224 (2d Cir. 2003) (“[S]tate statutes do not create federally protected due

process entitlements to specific state-mandated procedures.”).

The Court dismisses Plaintiff’s claims for failure to state a claim on which relief may be

granted. But in light of Plaintiff’s pro se status, the Court grants him 30 days’ leave to file an

amended complaint to state any facts suggesting that his due process rights were violated during

his parole revocation proceedings.

6 State court cases discussing the three-day notice rule do not appear to treat it as the

equivalent of a 72-hour notice rule. See, e.g., People ex rel. Atkinson v. Warden, Rikers Island

Corr. Facility, 607 N.Y.S. 2d 256, 257 (N.Y. App. Div. 1994) (holding that when the warrant

was executed on October 22, 1992, the three day period ended on Sunday, October 25, 1992 and

was extended to the following business day, October 26, 1992); People ex rel. Thompson v.

Warden, Rikers Island Corr. Facility, 839 N.Y.S.2d 47, 48 (N.Y. App. Div. 2007) (speaking in

terms of the hearing notice being “one day late” as opposed to several hours late).

D. Section 1983 as Habeas

To the extent Plaintiff seeks release from custody, he may not challenge the validity of

his conviction or obtain release from custody in a section 1983 action; instead, he can only

obtain such relief by bringing a petition for a writ of habeas corpus under 28 U.S.C. § 2254. See

Wilkinson v. Dotson, 544 U.S. 74, 78-82 (2005) (citing Preiser v. Rodriguez, 411 U.S. 475

(1973) (noting that writ of habeas corpus is sole remedy for prisoner seeking to challenge the

fact or duration of his confinement)). A state prisoner may not circumvent the exhaustion

requirement for habeas corpus relief by requesting release from custody in a civil action.

Preiser, 411 U.S. at 489-90.

The same exhaustion requirements apply when a plaintiff is a state prisoner challenging

his or her parole revocation. Cook v. N.Y. State Div. of Parole, 321 F.3d 274, 275, 278 (2d Cir.

2003) (holding that a state prisoner challenging his or her parole revocation must file under 28

U.S.C. § 2254 and rejecting plaintiff’s argument that section 2254 is not applicable to his petition

because his custody is pursuant to an order of the parole board rather than a state court); see, e.g.,

Robinson v. Atkinson, No. 03-CV-5176, 2004 WL 1798129, at *2-3 (S.D.N.Y. Aug. 5, 2004)

(same); U.S. ex rel. McNeil v. Schubin, 353 F. Supp. 166, 167-68 (S.D.N.Y. 1973) (dismissing

plaintiff’s habeas corpus petition to review his parole revocation because plaintiff failed to

exhaust his state remedies under 28 U.S.C. § 2254).

The Court declines to construe this section 1983 complaint as a habeas corpus petition

because the petition does not suggest that Plaintiff has exhausted his available state remedies in

accordance with 28 U.S.C. § 2254(b) and (c).7 Should Plaintiff seek release from custody, he

7 Plaintiff should note that under the Antiterrorism and Effective Death Penalty Act of

1996, which modified the habeas corpus statutes, a person in state custody must generally file a

section 2254 petition within one year from the latest of four benchmark dates: (1) when the

may file a petition for a writ of habeas corpus once all available state remedies have been

exhausted.

CONCLUSION

Plaintiff’s complaint, filed IFP under 28 U.S.C. § 1915(a)(1), is dismissed for failure to

state a claim for relief pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). The Court grants Plaintiff 30

days’ leave to submit an amended complaint.

The Clerk of Court is directed to mail a copy of this order to Plaintiff and note service on

the docket.

The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would

not be taken in good faith, and therefore IFP status is denied for the purpose of an appeal. See

Coppedge v. United States, 369 U.S. 438, 444–45 (1962).

SO ORDERED.

Dated: July 26, 2021

New York, New York

/s/ Laura Taylor Swain

LAURA TAYLOR SWAIN

Chief United States District Judge

judgment of conviction becomes final; (2) when a government-created impediment to making

such a motion is removed; (3) when the constitutional right asserted is initially recognized by the

Supreme Court, if it has been made retroactively available to cases on collateral review; or

(4) when the facts supporting the claim(s) could have been discovered through the exercise of

due diligence. See 28 U.S.C. § 2244(d).