Austin v. Cuomo

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NEW YORK

DERRELL AUSTIN, )

)

Plaintiff, )

)

v. ) Case No. 1:20-cv-00893

)

ANDREW CUOMO, Governor of the State of New)

York; and ANTHONY ANNUCCI, Acting )

Commissioner of the New York State Department )

of Corrections and Community Supervision, in their)

Official capacities; JOSEPH NOETH, AS )

SUPERINTENDENT OF ATTICA )

CORRECTIONAL FACILITY in his Official and, )

Individual Capacity, New York State Department of )

Parole Bureau Chief THOMAS DEGAL, former, )

NYS Senior Officer ANDREW AMATO, and NYS )

Parole Officers BRIAN BAILEY, COREY RICCA, )

and OFC, MILLER—in their individual and official )

capacities, )

Defendants. }

OPINION AND ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS

AND DENYING PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION

(Doc. 9, 10)

Plaintiff Derrell Austin brings this action pursuant to 42 U.S.C. § 1983 against

Defendants Andrew Cuomo, Governor of the State of New York (“NYS”) and Anthony

Annucci, Acting Commissioner of the New York State Department of Corrections and

Community Supervision, in their official capacities, and Joseph Noeth, Superintendent of

Attica Correctional Facility, Thomas Degal!, New York State Department Parole Bureau

Chief, Andrew Amato, former NYS Senior Officer, and Brian Bailey, Corey Ricca, and

Officer Miller, parole officers, in their individual and official capacities (collectively

“Defendants”).

Plaintiff's reply to Defendants’ motion to dismiss, Plaintiff consents to the dismissal of any

and all claims against Defendants Noeth and Degal.

Plaintiff alleges violations of his procedural and substantive due process rights as

well as violations of the First Amendment and Ex Post Facto Clause of the United States

Constitution relating to his designation as a sex offender under New York’s Sex Offender

Registration Act (“SORA”) and the attending parole conditions imposed upon him.

Pending before the court is Plaintiff’s September 10, 2020 motion for a

preliminary injunction seeking his release from prison and further requesting the court to

strike his designation as a sex offender and certain parole conditions. On September 18,

2020 Defendants opposed the motion and moved to dismiss Plaintiff's Amended

Complaint. On October 31, 2020, Plaintiff opposed the motion to dismiss and Defendants

replied on November 16, 2020 at which time the court took the pending motions under

advisement, The parties have waived an evidentiary hearing.

Plaintiff is represented by Matthew A. Albert, Esq. Defendants are represented by

Assistant Attorney General Joel J. Terragnoli.

I Defendants’ Motion to Dismiss.

The court addresses Defendants’ motion to dismiss first as it may obviate the need

to resolve Plaintiff's request for preliminary injunctive relief. See Grocery Mfrs. Ass'n v.

Sorrell, 102 F. Supp. 3d 583, 593 (D. Vt. 2015) (“Because the State’s motion to dismiss

winnows the claims for which Plaintiffs may seek a preliminary injunction, the court

addresses that motion first.”). In adjudicating a motion to dismiss, the court considers the

allegations in the Amended Complaint, any exhibits attached thereto, and documents

referenced therein or otherwise integral to the Amended Complaint. See Chambers v.

Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002) (observing that in adjudicating a

motion to dismiss “the complaint is deemed to include any written instrument attached to

it as an exhibit or any statements or documents incorporated in it by reference. Even

where a document is not incorporated by reference, the court may nevertheless consider it

where the complaint relies heavily upon its terms and effect, which renders the document

integral to the complaint.”) (internal citations and quotation marks omitted). As applied to

the case at bar, Plaintiff's parole conditions and the Wyoming County State Supreme

Court’s habeas decision are properly before the court.

To survive a motion to dismiss for failure to state a claim under Fed. R. Civ. P.

12(b)(6), Plaintiff’s Amended Complaint “must contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Elias v. Rolling

Stone LLC, 872 F.3d 97, 104 (2d Cir. 2017) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009)). The sufficiency of a complaint is evaluated using a “two-pronged approach[.]”

Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010) (quoting Jgbal, 556 U.S. at 679).

First, the court discounts legal conclusions or “[t]hreadbare recitals of the elements ofa

cause of action, supported by mere conclusory statements[.]” /gbal, 556 U.S. at 678.

Second, the court considers whether the factual allegations, taken as true, “plausibly give

rise to an entitlement to relief.” fd. at 679. This second step is fact-bound and context

specific, requiring the court “to draw on its judicial experience and common sense.” Jd.

The court does not “weigh the evidence” nor “evaluate the likelihood” that a plaintiff's

claims will prevail. Christiansen v. Omnicom Grp., Inc., 852 F.3d 195, 201 (2d Cir.

2017).

A. The Allegations in Plaintiff’s Amended Complaint.

In 1996, Plaintiff alleges he was convicted of the crimes of kidnapping-for-

ransoin, two counts of burglary in the first degree, and robbery in the first degree. The

kidnapping allegedly arose in the context of a drug trade and had no sexual component,

but because the kidnapping victim was under the age of seventeen, Plaintiff asserts he

was automatically classified as a sex offender under SORA and required to register as a

sex offender upon his release from prison.

In February 2017, prior to his release from prison, Plaintiff participated ina

hearing before the New York State Supreme Court to determine what risk level he would

be assigned under SORA. At that hearing, Plaintiff was designated a Level Il offender.

Plaintiff contends that the presiding judge did not have the option of refusing to designate

him as a sex offender on the grounds that his crimes of conviction had no sexual

component.

On March 28, 2017, Plaintiff was released on parole at which time he was subject

to numerous parole conditions including the following special parole conditions related to

his status as a sex offender:

e Plaintiff may not “act in any fiduciary capacity” without the permission

of his parole officer. (Doc. 9-3 at 3, 15.)

e Plaintiff may not have a checking, savings, debit, or credit card account

without the permission of his parole officer.

¢ Plaintiffis not permitted to operate a motor vehicle or apply for, renew,

or possess a New York State driver’s license without the permission of

his parole officer.

e Plaintiff required to turn in his driver’s license upon his first office

visit to his parole officer.

e Plaintiff is not permitted to frequent any establishment where alcohol is

sold or served as its main business without the permission of his parole

officer.

e Plaintiff is not permitted to rent, own, or possess a cellular phone, pager,

caller ID or answering service without the permission of his parole

officer. If given permission, the cellular phone must be the most basic

style available and cannot be used to access the internet or to store or

take photos, videos, or audio recordings.

e Plaintiff is required to notify his parole officer when he establishes a

“significant relationship” and to inform the other consenting adult of his

prior criminal offenses. (Doc. 9-3 at 6, 431.)

e Plaintiff is not permitted to have an email address or account or to rent

or have access to a U.S. Post Office Box without the permission of his

parole officer.

e Plaintiff is not permitted to purchase or possess a computer or another

device that allows access to the internet, contains a camera, or plays

DVDs without the permission of his parole officer. If he is permitted to

possess DVDs, he may not possess more than ten.

e Plaintiff is not permitted to participate in or gain access to any online

computer service or internet without the permission of his parole officer.

He is not permitted under any circumstances to communicate in any

way with chat line or dating lines.

e Plaintiff not permitted to have any premium channels on any of the

televisions that he has access to in his residence, including The Movie

Channel, Showtime, Cinemax, and Home Box Office.

Plaintiff is not permitted to be within 1,000 feet of places where any

person under the age of 18 may congregate, including but not limited to:

libraries, book stores, schools, colleges, playgrounds, parks,

walking/jogging/bicycle paths, beaches, golf courses/miniature golf

center's, picnic areas, boating/marina/fishing areas, child care centers,

festivals, concerts, video arcades, community centers, art/craft galleries,

paint ball/laser tag type centers, internet cafes, sports fields, snow

skiing/sledding/tubing areas, malls, movie theaters, yard/garage/estate

sales, professional/college/amateur sporting events/venues, or child

oriented restaurants without prior approval from his parole officer. If

given permission to visit a department store or grocery store, Plaintiff

may not enter the child oriented areas therein.

e Plaintiff is not permitted to have direct or indirect contact with any

person under the age of 18 without the permission of his parole officer.

e Plaintiffis not permitted to be employed in a capacity where he would

be required to visit occupied dwellings or where he would have frequent

contact with the public (ex. cashier).

¢ Plaintiff is required to maintain an accurate written log of his daily

activities during the hours that he is permitted to leave his residence,

including dates, times, and destinations, and must bring this log to each

scheduled parole officer report.

At the time that the parole conditions were imposed, Plaintiff asserts that he

informed his parole officer that his prior conduct had no sexual component. Thereafter,

Plaintiff claims he filed a grievance related to his parole conditions with DOCCS, but

“It]he grievances went unanswered.” (Doc. 4 at 6, § 49.)

In November of 2019, Plaintiff was found “guilty of violating three conditions of

his release on parole[,]”each of which relates to his status as a sex offender. Jd. at 2, §[ 12.

Plaintiff was found to have not been in his approved residence between the hours of 7:00-

8:00 a.m. on July 7, 2019, in violation of his curfew. Plaintiff was also found to be within

1,000 feet of a park where children congregate on that same date, and to have possessed a

cell phone with internet access on August 2, 2019 without the permission of his parole

officer,

Plaintiff's parole was subsequently revoked, he was sentenced to a term of

imprisonment, and he is currently incarcerated, On or about March 6, 2020, Plaintiff filed

a petition for a writ of habeas corpus with the Wyoming County Supreme Court, secking

his immediate release to parole and an order striking the special parole conditions that

might apply to him upon his release, By decision and order dated June 2, 2020, the

Wyoming County Supreme Court denied the petition for the following reasons:

[T]his Court agrees that the proper place to challenge the application of

SORA to a kidnapping defendant is at the SORA hearing. SORA operates

solely through the sex offender designation and risk level determination

which are the result of the SORA hearing held pursuant to Correction Law

§168-n. Until the hearing decision is made, SORA has no direct effect upon

the defendant who stands convicted of a registerable sex offense. Therefore,

a constitutional challenge to the application of SORA ought to be made to

the SORA hearing Court, if it is to be made anywhere.

| Plaintiff] received a SORA hearing in 2017, at which he contested the

imposition of a level two risk level. Upon his appeal of the SORA hearing

decision, it was affirmed. (Austin, supra). Although he evidently did not

raise his constitutional claims at the hearing or on appeal, he certainly could

have done so... To the extent that [Plaintiff] seeks a ruling in this

proceeding that SORA does not apply to him — and an order striking the

special parole conditions on that basis ~ he is asking this Court to nullify

the SORA hearing Court’s sex offender decision — a decision which has

been affirmed by the Fourth Department. The Court declines to do so.

To the extent that [Plaintiff] seeks to challenge the parole revocation, the

Court also finds that the petition must be denied because he commenced

this proceeding without first exhausting his available administrative

remedies. The Court notes that this deficiency is not cured by the belated

perfecting of [Plaintiff]’s administrative appeal. “[T]he fact that petitioner

may have ultimately perfected his administrative appeal does not absolve

him of this requirement or validate this petition nunc pro tunc” (Maiter of

Whitehead v. Russi, 201 A.D.2d 825 [3™ Dept., 1994]).

Alternatively, the Court finds that the petition must be denied because

[Plaintiff]’s claims are lacking in merit. With respect to the constitutional

claims, the application of SORA to a kidnapping defendant is not

constitutionally prohibited in the absence of evidence of a sexual

component to the crime... and SORA has been held not to implicate the

ex post facto clause (Doe v. Patacki, 120 F.3d 1263, 1285 [2"¢ Cir., 1997]).

[Plaintiff] is lawfully held pursuant to his sentence following the revocation

of his parole. He has not demonstrated that his parole was revoked in error

or that the special parole conditions to which he was subject were

improperly imposed,

(Doc, 11-1 at 4-5).

B. Whether Plaintiff’?s Claims are Barred by the Rooker-Feldman

Doctrine.

Under the Rooker-Feldman doctrine, federal district courts lack subject matter

jurisdiction to hear “cases brought by state-court losers complaining of injuries caused by

state-court judgments rendered before the district court proceedings commenced and

inviting district court review and rejection of those arguments.” Exxon Mobile Corp. v.

Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005). The Second Circuit has held that

claim is barred under the doctrine when (1) the federal court plaintiff lost in state

court, (2) the plaintiff complains of injuries caused by a state court judgment, (3) the

plaintiff invites the federal court to review and reject that judgment, and (4) the state

court judgment was rendered prior to the commencement of proceedings in the district

court.” Graves v. Goodnow Flow Ass'n, Inc,, 746 F. App’x 45, 47 (2d Cir, 2018). “The

first and fourth of these requirements may be loosely termed procedural; the second and

third may be termed substantive.” Hoblock v. Albany Cnty. Bd. of Elections, 422 F.3d □□□

85 (2d Cir, 2005).

Defendants argue that Plaintiff's claims are barred by Rooker-Feldman because

they effectively challenge the Wyoming County Supreme Court’s decision denying

Plaintiff's petition for a writ of habeas corpus. At the time Plaintiff filed the instant

action, he had already lost in state court and although he complains that the constitutional

violations he alleges “were unaddressed” in the state court habeas proceeding, (Doc. 4 at

3), the Wyoming County Supreme Court’s decision reveals that the judge found that

Plaintiffs constitutional claims were not raised in the proper forum and were “lacking in

merit.” (Doc. 11-1 at 3.)

“(A] federal suit is not free from Rooker-Feldman’s bar simply because the suit

proceeds on legal theories not addressed in state court.” Hoblock, 422 F.3d at 87, On the

other hand, “if a federal plaintiff presents some independent claim, albeit one that denies

a legal conclusion that a state court has reached” then that claim is not barred by Rooker-

Feldman. Exxon Mobil, 544 U.S. at 293 (internal quotation marks and brackets omitted).

key to resolving this uncertainty lies in the second substantive Rooker-Feldman

requirement” which addresses whether the Plaintiff's injuries were caused by the state

court judgment, Hoblock, 422 F.3d at 87,

The crux of Plaintiffs claims allege an injury caused by his designation as a sex

offender and the attending parole conditions. He does not claim to have been injured by

the state court judgment. “The fact that the state court chose not to remedy the injury

does not transform the subsequent suit on the same matter into an appeal, forbidden by

Rooker-Feldman, of the state court judgment.” /d. at 88 (footnote omitted).?

In other words, “a party is not complaining of an injury ‘caused by’ a state-court

judgment when the exact injury of which the party complains in federal court existed

prior in time to the state-court proceedings, and so could not have been ‘caused’ by those

proceedings.” McKithen v. Brown, 481 F.3d 89, 98 (2d Cir. 2007). Here, the injury of

which Plaintiff complains, his designation as a sex offender and its related parole

conditions, occurred prior to and independently of his state court habeas petition

challenging that designation.? Accordingly, despite the fact that Plaintiff seeks a result in

this court that is opposed to the one he received in his state court habeas petition, his

claims are not barred by Rooker-Feldman. See Hoblock, 422 F.3d at 87 (holding that “a

2 As the Second Circuit explained:

Suppose a plaintiff sues his employer in state court for violating both state anti-

discrimination law and Title VII and loses. If the plaintiff then brings the same

suit in federal court, he will be seeking a decision from the federal court that

denies the state court’s conclusion that the employer is not liable, but he will not

be alleging injury from the state judgment. Instead, he will be alleging injury

based on the employer’s discrimination.

Hoblock v. Albany Cnty. Bd. of Elections, 422 F.3d 77, 87-88 (2d Cir. 2005).

3 The Rooker-Feldman doctrine is a jurisdictional bar only. The subsequent federal suit may still

be barred by ordinary preclusion principles. See Exxon Mobil Corp. v. Saudi Basic Indus. Corp.,

544 US. 280, 282 (2005) (holding that “[i]fa federal plaintiff presents an independent claim,

even one that denies a state court’s legal conclusion in a case to which the plaintiff was a party,

there is jurisdiction, and state law determines whether the defendant prevails under preclusion

principles”).

plaintiff who seeks in federal court a result opposed to the one he achieved in state court

does not, for that reason alone, run afoul of Rooker-Feldman’’).

C. Whether Plaintiff's Claims are Barred by Heck v. Humphrey.

“When a state prisoner seeks damages in a § 1983 suit, the district court must

consider whether a judgment in favor of the plaintiff would necessarily imply the

invalidity of his conviction or sentence; if it would, the complaint must be dismissed

unless the plaintiff can demonstrate that the conviction or sentence has already been

invalidated.” Heck v. Humphrey, 512 U.S. 477, 487 (1994). This is because “Congress

has determined that habeas corpus is the appropriate remedy for state prisoners attacking

the validity of the fact or length of their confinement, and that specific determination

must override the general terms of [§] 1983.” Preiser v. Rodriguez, 411 U.S, 475, 490

(1973). Thus, a section 1983 claim cannot serve “as a collateral attack upon a prior

conviction or sentence.” Webster v. Himmelbach, 271 F. Supp. 3d 458, 464 (W.D.N.Y.

2017). “Courts have applied Heck to prevent a state prisoner from bringing a [s]ection

1983 action challenging a parole revocation unless that revocation decision is reversed or

the underlying conviction is set aside.” Lee v. Donnaruma, 63 F. App’x 39, 41 (2d Cir.

2003). The relevant inquiry ‘is whether a prisoner’s victory in a § 1983 suit would

necessarily demonstrate the invalidity of his conviction or sentence[.}” McKithen, 481

F.3d at 102 (emphasis omitted).

Plaintiff admits that he is currently incarcerated because his parole was revoked

based on violations of the special conditions that were imposed due to his status as a sex

offender. He argues that because those conditions violate his constitutional rights, this

court should enjoin their enforcement and order his immediate release from

imprisonment. Under Heck, this constitutes a direct challenge to the validity of Plaintiff's

confinement which cannot be brought under section 1983. See Muhammad v. Close, 540

U.S. 749, 750 (2004) (holding that “[c]hallenges to the validity of any confinement or to

particulars affecting its duration are the province of habeas corpus”), Halsey v,

Thompson, 2017 WL 1532582, at *4 n.3 (E.D.N.Y. April 27, 2017) (holding that

b]ecause [p]laintiff is incarcerated, to the extent he seeks release from prison, [p]laintiff

cannot utilize a section 1983 claim but must instead bring a petition for habeas corpus

pursuant to 28 U.S.C, § 2254”),

Even if Plaintiff's claims were confined to his request for compensatory damages,

Heck would still apply because this “would necessarily imply the invalidity of his parole

revocation, which—according to Plaintiff's own allegations—was based upon the violation

of the special condition[s]” placed upon him due to his sex offender status, Webster, 271

F. Supp. 3d at 470; see also Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005) (holding that

a section 1983 action is barred “no matter the relief sought (damages or equitable relief),

no matter the target of the prisoner’s suit (state conduct leading to conviction or internal

prison proceedings)—if success in that action would necessarily demonstrate the invalidity

of confinement or its duration”) (emphasis in original).

Plaintiff's claims are therefore barred by Heck insofar as they challenge the

validity of his parole revocation. See Davis v. Cotov, 214 F. Supp. 2d 310, 316 (E.D.N.Y.

2002) (holding that a plaintiffs suit was barred by Heck where plaintiff “remained

incarcerated[,]” his claims “challenged the validity of the parole revocation procedures,”

and he had not shown that the revocation had been “reversed, expunged, or declared

invalid”). Defendants’ motion to dismiss Plaintiff's Amended Complaint to the extent it

challenges his confinement and parole conditions is therefore GRANTED.

D. Whether Plaintiff’s Claims are Untimely.

“Claims alleging violations of federal constitutional rights brought pursuant to

§ 1983 are subject to the state’s statute of limitations for personal injury torts in the state

where the action arose, here, a three-year period of limitations.” Gordon v. Parole Officer

Semrug, 2016 WL 259579, at *3 (W.D.NY. Jan. 21, 2016) (citing Wallace v. Kado, 549

U.S. 384, 387 (2007)). For statute of limitations purposes, section 1983 actions accrue

“from the time a plaintiff knows or has reason to know of the injury giving rise to the

claim[.]” Milan v. Wertheimer, 808 F.3d 961, 963 (2d Cir. 2015) (internal quotation

marks and citations omitted). “|T]he proper focus is on the time of the [unlawful] act, not

the point at which the consequences of the act become[] painful.” Eagleston v. Guido, 41

F.3d 865, 871 (2d Cir, 1994) (internal quotation marks, citation, and emphasis omitted),

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“(Where the alleged constitutional violation results in an improper restraint on a

plaintiffs protected liberty interest, assuming [a p]laintiff has such an interest, . . . [the

claim] accrues for purposes of the applicable three-year statute of limitations when the

restraint is initially imposed ... and not when a subsequent violation by a defendant,

based on the same, initial unconstitutional conduct, occurs.” Webster, 271 F. Supp. 3d at

467 (alterations in original).

Plaintiff's Amended Complaint alleges that he was adjudicated a Level II sex

offender in February 2017; his original Complaint was filed on July 14, 2020. Claims

relating to a plaintiff's designation as a sex offender accrue “when [the p]laintiff was

informed of [the] decision to impose his [sex offender designation.]” Gordon, 2016 WL

259579, at *4; see also Fowlkes v. Parker, 2010 WL 5490739, at *9 (N.D.N.Y. Dec. 9,

2010) (holding that “any claim associated with [plaintiff's SORA] registration itself...

would be untimely since plaintiff was plainly on notice” when he signed a sex offender

registration form). Plaintiff was therefore on notice of his injury in February of 2017 but

failed to assert a claim based thereon within the three year statute of limitations.

Assuming arguendo that Plaintiff was not on notice of his injuries at the time of

his designation as a Level II sex offender, his claims remain untimely because Plaintiff

admits in his Amended Complaint that on March 28, 2017 he was released on parole and

assigned the special conditions of parole about which he now complains. Plaintiff signed

each page of these special conditions of parole and allegedly informed Defendant Miller,

his parole officer at the time, that “his prior conduct had nothing to do with sex.” (Doc. 4

at 6, | 48.) On that same date, Plaintiff knew the source of his present injuries and

therefore failed to file his Complaint within the three-year statute of limitations. See

Webster, 271 F. Supp. 3d at 466, 468 (finding that a plaintiff's section 1983 action was

untimely where “[p]laintiff was informed of his [sex offender] status on or about the date

of his initial release to [p]arole” and “knew or had reason to know of the purported

constitutional violation because he immediately indicated to the parole officers that he

believed this designation was made in violation of his due process rights” therefore

“(plaintiffs due process claims accrued for purposes of this § 1983 action on that date”).

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A continuing violation theory does not cure the untimeliness of Plaintiffs claims

because “[t]he fact that the detrimental effects of [the] discrete decision [to designate

plaintiff as a sex offender} may be continuing does not extend the statute of limitations

indefinitely.” Munsch v. Evans, 2012 WL 528135, at *13 (E.D.N.Y. Feb. 17, 2012).

Plaintiffs argument that equitable tolling applies fares no better. Equitable tolling applies

only in “rare and exceptional circumstances” where “extraordinary circumstances

prevented a party from timely performing a required act, and that party acted with

reasonable diligence throughout the period he sought to toll.” Walker v. Jastremski, 430

F.3d 560, 564 (2d Cir, 2005) (interna! quotation marks, alterations, and citation omitted).

Plaintiff makes no argument that exceptional circumstances prevented him from timely

asserting his claims. In any event, “equitable tolling does not apply where plaintiff has

commenced a timely state court action based upon the same facts as his federal claim.”

Libbett v. Superintendent of Attica Corr. Facility, 2013 WL 599568, at *1 (W.D.N.Y. Jan

14, 2013). Because Plaintiff did not commence this action until July 14, 2020, all claims

relating to his designation as a sex offender under SORA and the attending special

conditions of his parole are barred by the applicable three-year statute of limitations.

Defendants’ motion to dismiss is therefore GRANTED on this alternative basis as well.

E. Whether Plaintiff is Entitled to a Preliminary Injunction.

“A preliminary injunction is an extraordinary remedy never awarded as of right. In

each case, courts ‘must balance the competing claims of injury and must consider the

effect on each party of the granting or withholding of the requested relief.’” Winter v.

Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (quoting Amoco Prod. Co, v. Vill. of

Gambell, 480 U.S. 531, 542 (1987)) (internal citation omitted). “A party seeking a

preliminary injunction must generally show a likelihood of success on the merits, a

likelihood of irreparable harm in the absence of preliminary relief, that the balance of

equities tips in the party’s favor, and that an injunction is in the public interest.” Am, Civil

Liberties Union y. Clapper, 804 F.3d 617, 622 (2d Cir. 2015). “Because the violation ofa

constitutional right is the irreparable harm asserted here, the two prongs of the

preliminary injunction threshold merge into one: in order to show irreparable injury,

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plaintiff must show a likelihood of success on the merits.” Turley v. Giuliani, 86 F. Supp.

2d 291, 295 (S.D.N.Y. 2000).

Plaintiff admits that he seeks a “mandatory” injunction, one that changes the

“status quo,” therefore he must shoulder a heightened burden of persuasion and

demonstrate “‘a clear or substantial likelihood of success on the merits.’” N. Am. Soccer

League, LLC v. U.S. Soccer Fed’n, Inc., 883 F.3d 32, 37 (2d Cir, 2018) (quoting N.Y.

Civil Liberties Union v. N.Y.C. Transit Auth., 684 F.3d 286, 294 (2d Cir. 2012)), Because

Plaintiff's claims as currently framed are barred by both Heck and the applicable statute

of limitations, he has not established a clear or substantial likelihood of success on the

merits, For this reason, his request for injunctive relief must be DENIED,

F. Whether to Grant Plaintiff Leave to Amend.

Pursuant to Fed. R. Civ. P. 15(a), courts “should freely give leave” to amend a

complaint “when justice so requires.” However, “[IJeave may be denied ‘for good reason,

including futility, bad faith, undue delay, or undue prejudice to the opposing party.”

TechnoMarine SA y. Giftports, Inc., 758 F.3d 493, 505 (2d Cir. 2014) (quoting McCarthy

y, Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007)). Plaintiff is hereby

GRANTED leave to amend within twenty (20) days of the date of this Opinion and Order

consistent with the Federal Rules of Civil Procedure and this court’s Local Rules.

CONCLUSION

For the foregoing reasons, Defendants’ motion to dismiss Plaintiff's Amended

Complaint (Doc. 10) is GRANTED and Plaintiffs motion for a preliminary injunction

(Doc. 9) is DENIED.

SO ORDERED.

Dated this is day of December, 2020.

United States District Court

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