A. D. v. Cuomo

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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:

A.D., :

:

Plaintiff, : 21cv5970 (DLC)

:

-v- : OPINION AND ORDER

:

NEW YORK STATE DEPARTMENT OF :

CORRECTIONS AND COMMUNITY SUPERVISION, :

et al., :

:

Defendants. :

:

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APPEARANCES:

For plaintiff:

Onyuwoma Williams Igbokwe

Law Office of William Igbokwe

28 Liberty Street

6th Floor

New York, NY 10005

For defendants:

Jeb Harben

New York State Office of the Attorney General

28 Liberty Street

15th Floor

New York, NY 10005

DENISE COTE, District Judge:

Plaintiff A.D.1 brings claims against the New York State

Department of Corrections and Community Supervision (“DOCCS”),

1 The plaintiff never requested leave to file pseudonymously. To

warranty anonymity, the plaintiff’s privacy interest must

outweigh “both the public interest in disclosure and any

prejudice to the defendant.” Sealed Plaintiff v. Sealed

Defendant, 537 F.3d 185, 189 (2d Cir. 2008). This is a

reassigned case. If this case were to proceed the plaintiff

the New York State Office of Mental Health (“OMH”), Commissioner

of the New York State Office of Mental Health Ann Marie T.

Sullivan, Acting Commissioner of the New York State Department

of Corrections and Community Supervision Anthony J. Annucci, and

Deputy Commissioner of the New York State Department of

Corrections and Community Supervision Anne Marie McGrath, as

well as various Doe defendants, for allegedly holding the

plaintiff in prison beyond his scheduled release date. The

defendants have moved to dismiss the complaint. For the

following reasons, the motion is granted.

Background

The following facts are derived from the third amended

complaint (“TAC”) and are assumed to be true for the purposes of

this motion unless otherwise noted. On May 5, 2017, A.D. pled

guilty before the Nassau County Supreme Court to the criminal

sale of a controlled substance. He was sentenced to one year

and six months’ imprisonment to be followed by one year of post

release supervision. A.D. alleges that he has a serious mental

illness.

would be required to address whether it could meet the standard

to bring this action anonymously.

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Based on the credits he earned for good behavior, A.D.

alleges that he should have been released from prison on

November 24, 2017, at which point his period of post-release

supervision would have begun. See N.Y. Penal Law § 70.45(5)(a).

Without those credits, A.D. contends that he should have been

released from prison no later than February 13, 2018. A.D. was

not released, however, until September 10, 2018, because OMH had

not identified appropriate mental health housing for him.

In moving to dismiss this action, the defendants have

submitted a DOCCS record containing the plaintiff’s sentencing

term and release dates. It is properly considered on a motion

to dismiss, cf. Magniafico v. Blumenthal, 471 F.3d 391, 398 (2d

Cir. 2006) (criminal docket sheet is public record subject to

judicial notice), and the plaintiff does not take issue with the

accuracy of the record or the dates it reports. The record

reflects a conditional release date of November 25, 2017, a

maximum expiration date of February 13, 2018, and a post release

supervision maximum expiration date of February 13, 2019. Thus,

the TAC asserts claims premised on the plaintiff’s release from

custody during the one-year term of his post-release

supervision.

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A.D. brought this action on July 12, 2021, alleging that

his extended imprisonment violated his constitutional rights, as

well as his rights under the Americans with Disabilities Act

(“ADA”) and Rehabilitation Act. A.D. amended the complaint on

July 28. The defendants moved to dismiss the first amended

complaint on October 6. The plaintiff then filed a second

amended complaint on October 27, removing a request for

injunctive relief, adding additional factual allegations, and

revising the list of defendants. Defendants moved to dismiss

the second amended complaint on December 1. On December 15, the

plaintiff requested leave to file a third amended complaint to

sue the individual defendants in both their official and

individual capacities. The Court granted the plaintiff’s

motion, and the plaintiff filed the TAC on December 20. The

plaintiff also opposed the defendants’ motion to dismiss on

December 20. The motion became fully submitted on January 13,

2022.

Discussion

The TAC brings causes of action against the defendants for

violation of two federal statutes: the Americans with

Disabilities Act, 42 U.S.C. § 12132, and the Rehabilitation Act,

29 U.S.C. § 794. It also brings claims pursuant to 42 U.S.C. §

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1983 for violation of the plaintiff’s constitutional rights,

specifically his substantive due process rights, Eighth

Amendment rights, rights against false arrest, false

imprisonment, and unlawful seizure, and for failure to

intervene. Finally, he brings a claim for liability under

Monell v. Department of Social Services, 436 U.S. 658 (1978),

for unconstitutional policies and practices. The plaintiff

seeks a declaration that his rights have been violated and

damages. The defendants have moved to dismiss for failure to

state a claim pursuant to Fed. R. Civ. P. 12(b)(6).

In order to state a claim and survive a motion to dismiss,

“[t]he complaint must plead ‘enough facts to state a claim to

relief that is plausible on its face.’” Green v. Dep't of Educ.

of City of New York, 16 F.4th 1070, 1076–77 (2d Cir. 2021)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

“A claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct

alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “In

determining if a claim is sufficiently plausible to withstand

dismissal,” a court “accept[s] all factual allegations as true”

and “draw[s] all reasonable inferences in favor of the

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plaintiffs.” Melendez v. City of New York, 16 F.4th 992, 1010

(2d Cir. 2021) (citation omitted). To evaluate the adequacy of

a complaint, “a district court may consider the facts alleged in

the complaint, documents attached to the complaint as exhibits,

and documents incorporated by reference in the complaint.”

United States ex rel. Foreman v. AECOM, 19 F.4th 85, 106 (2d

Cir. 2021) (citation omitted).

I. Section 1983

A. Identification of the Specific Right at Issue

Section 1983 provides a cause of action against state

officials who cause a “deprivation of any rights, privileges, or

immunities secured by the Constitution and laws.” 42 U.S.C. §

1983. A.D. argues that the duration of his incarceration

violated his substantive due process rights, his Eighth

Amendment rights, and his rights against false arrest, false

imprisonment, and unlawful seizure. The first step in analyzing

a § 1983 claim is identification of the specific constitutional

right at issue. See Wright v. Goord, 554 F.3d 255, 268 (2d Cir.

2009).

A.D.’s false arrest, false imprisonment, and unlawful

seizure claims arise out of his rights under the Fourth

Amendment. See Weyant v. Okst, 101 F.3d 845, 852–53 (2d Cir.

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1996). The Fourth Amendment regulates detention before trial.

Manuel v. City of Joliet, 137 S. Ct. 911, 917 (2017). A.D., by

contrast, challenges only the duration of his confinement after

his conviction. Such challenges can instead be brought under

the Eighth Amendment. See Francis v. Fiacco, 942 F.3d 126, 149–

50 (2d Cir. 2019); Gonzalez v. Hasty, 802 F.3d 212, 224 (2d Cir.

2015). Accordingly, the Eighth Amendment, rather than the

Fourth Amendment, provides the appropriate framework with which

to analyze A.D.’s claims.2

A.D. also raises a substantive due process claim, and a

claim for failure to intervene. Neither cause of action,

however, provides an independent standard under which to analyze

A.D.’s § 1983 claims. “Where another provision of the

Constitution provides an explicit textual source of

constitutional protect, a court must assess a plaintiff’s claims

under that explicit provision and not the more generalized

notion of substantive due process.” Southerland v. City of New

York, 680 F.3d 127, 142–43 (2d Cir. 2012) (citation omitted).

Similarly, a failure to intervene claim requires the plaintiff

2 A.D.’s § 1983 challenge to the duration of his confinement is

not barred by the Supreme Court’s decision in Heck v. Humphrey,

512 U.S. 477 (1994). Huang v. Johnson, 251 F.3d 65, 75 (2d Cir.

2001).

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to plausibly allege that the non-intervening officer “permitted

fellow officers to violate clearly established statutory or

constitutional rights of which a reasonable person would have

known.” Berg v. Kelly, 897 F.3d 99, 113 (2d Cir. 2018)

(citation omitted). In either case, A.D.’s claim under § 1983

requires that he point to a violation of another specific

constitutional provision.

B. Eighth Amendment

The Eighth Amendment prohibits “cruel and unusual

punishment.” U.S. Const. amend. VIII. A plaintiff may bring a

claim under the Eighth Amendment pursuant to § 1983 when he has

been incarcerated “for longer than his duly imposed sentence.”

Francis, 942 F.3d at 150. To bring such a claim, the plaintiff

must plausibly allege (1) that “the alleged deprivation [is], in

objective terms, sufficiently serious,” and (2) that “the

charged official . . . act[ed] with a sufficiently culpable

state of mind.” Id. (citation omitted).

A.D. points to two distinct periods of his extended

confinement, each of which he alleges violated his

constitutional rights. First, A.D. was held for 291 days after

he alleges that he should have been subject to early release due

to good behavior, which was also 111 days past the point when he

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alleges his period of post-release supervision should have ended

if he had received those good time credits. Second, A.D. was

held for 210 days past the point that his period of supervised

release would have normally begun even without good time

credits.

Neither of these periods of confinement constitutes an

Eighth Amendment violation. Because A.D.’s post-release

supervision was scheduled to end in February of 2019, A.D.

alleges only that he was held during what should have been his

term of supervised release. Under New York law, however,

conditional release is “in the discretion of the state board of

parole.” N.Y. Penal Law § 70.40(1)(a)(i). It does not violate

the Constitution “to impose conditions on the conditional

release of an inmate.” Doe v. Simon, 221 F.3d 137, 139 (2d Cir.

2000). The Second Circuit has held that inmates have no liberty

interest in being granted parole under New York’s system.

Graziano v. Pataki, 689 F.3d 110, 114–15 (2d Cir. 2012)

(citation omitted). Moreover, A.D. alleges that he was being

held while the State attempted to locate community housing

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suitable for his mental health needs. This is not a motivation

that reflects a culpable state of mind.3

C. Supervisory Liability

The plaintiff seeks to hold the named individual defendants

vicariously liable for the allegedly unlawful actions of their

employees. If the plaintiff had stated a claim for violation of

Eighth Amendment rights, then § 1983 claims against the

individual defendants would nonetheless need to be dismissed.

Under § 1983 there is no “special test for supervisory

liability.” Tangreti v. Bachmann, 983 F.3d 609, 616 (2d Cir.

2020). Instead, “a plaintiff must plead that each Government-

official defendant, through the official’s own individual

actions, has violated the Constitution.” Id. (quoting Ashcroft

v. Iqbal, 446 U.S. 662, 676 (2009)).

The TAC does not allege that the named individual

defendants -- i.e., Sullivan, Annucci, and McGrath -- were

personally involved in the alleged constitutional violations.

Rather, the TAC alleges that these defendants employed the

3 Additionally, even if A.D. had been held for 111 days after his

entire sentence was supposed to have expired, the individual

defendants may be entitled to qualified immunity. See Francis,

942 F.3d at 150 (incarceration for four months past the lawful

termination of a sentence did not violate a clearly established

right under the Eighth Amendment).

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individuals who were responsible. But a government official

must do more than merely supervise an officer responsible for a

constitutional violation to be held liable themselves. See id.

The plaintiff argues that the named defendants satisfy the

test for supervisory liability articulated in Colon v. Coughlin,

58 F.3d 865, 873 (2d Cir. 1995). Colon, however, has been

overruled. Tangreti, 983 F.3d at 617–18. There is no longer

any “special rule of liability for supervisors.” Id. at 618.

The plaintiff nevertheless argues that Colon’s third prong is

still good law, and that the defendants can be held liable if

they “created a policy or custom under which unconstitutional

practices occurred.” Colon, 58 F.3d at 873. But the plaintiff

does not explain what exactly this policy is, which defendants

created it, or why it is unconstitutional. Accordingly, the

plaintiff has not plausibly alleged sufficient facts to support

supervisory liability under § 1983.

The defendants actually responsible for the plaintiff’s

confinement remain unnamed. In some circumstances, a plaintiff

can amend a complaint to substitute a Doe defendant for a named

individual. See Hogan v. Fischer, 738 F.3d 509, 516–19 (2d Cir.

2013). At this point, however, the plaintiff has been given

multiple opportunities to amend the complaint, and has not

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requested leave to amend further. Additionally, as discussed

above, the plaintiff has not plausibly alleged that any

constitutional violation occurred in the first instance.

Accordingly, neither amendment nor supervisory liability can

save the plaintiff’s § 1983 claims.

D. Municipal Liability

The plaintiff seeks to hold the defendants liable under a

Monell theory. The Supreme Court decided in Monell v.

Department of Social Services, 436 U.S. 658 (1978), that

municipalities could, in some circumstances, be sued under §

1983. The defendants, however, are all either state officials

or state agencies, not municipalities. Cf. Hu v. City of New

York, 927 F.3d 81, 104 (2d Cir. 2019) (discussing municipal

liability under Monell). State governments and state officials

in their official capacity may not be sued at all under § 1983.

Huminski v. Corsones, 396 F.3d 53, 70 (2d Cir. 2005) (citing

Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989)).

And, as discussed above, the TAC has not plausibly alleged that

the individual defendants committed violations of § 1983 in

their individual capacities either. Accordingly, A.D. has not

presented a theory by which any defendant may be held liable

under § 1983. A.D.’s § 1983 claims must therefore be dismissed.

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II. Statutory Claims

A.D. brings claims for damages and declaratory relief

against the defendants for violation of the Americans with

Disabilities Act and the Rehabilitation Act. Sovereign immunity

bars claims under § 504 of the Rehabilitation Act for money

damages against states, state agencies, and state officials in

their official capacity unless the defendants acted with intent,

defined as a “deliberate indifference to the strong likelihood

of a violation.” Loeffler v. Staten Island Univ. Hosp., 582

F.3d 268, 275 (2d Cir. 2009) (citation omitted). Such claims

are subject to an even more stringent standard when brought

under Title II of the ADA, which abrogates sovereign immunity

only when the defendants have acted with “discriminatory animus

or ill will.” Garcia v. S.U.N.Y. Health Sci. Ctr. Of Brooklyn,

280 F.3d 98, 112 (2d Cir. 2001).

The TAC’s conclusory allegations are not sufficient to

plead animus or deliberate indifference. The TAC alleges that

the defendants were aware of the plaintiff’s detention and

either indifferently, knowingly, or intentionally continued to

keep him confined. But the TAC does not plead facts sufficient

to plausibly support this conclusion.

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The plaintiff argues that the TAC demonstrates deliberate

indifference because it alleges that other inmates had been

incarcerated past their release dates, and that the defendants

did not change their policies to address this problem. But the

TAC provides no information about these other incarcerations,

and does not explain what policies should have been changed.

These allegations are not sufficient to establish deliberate

indifference, much less discriminatory animus. The claims under

the ADA and Rehabilitation Act for damages against state

agencies and state officials sued in their official capacity

must therefore be dismissed.

The individual capacity claims and claims for declaratory

relief fare no better. The doctrine of sovereign immunity bars

claims for declaratory relief just as it bars claims for money

damages. See P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy,

Inc., 506 U.S. 139, 146 (1993). And the claims against the

individual defendants in their individual capacities must also

be dismissed because “neither Title II of the ADA nor § 504 of

the Rehabilitation Act provides for individual capacity suits

against state officials.” Garcia, 280 F.3d at 107.

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Conclusion

The defendants’ December 1, 2021 motion to dismiss is

granted. The Clerk of Court shall enter judgment for the

defendants and close the case.

Dated: New York, New York

February 22, 2022 :

NISE COTE

United States District Judge

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