Jimenez v. Chung

EASTERN DISTRICT OF NEW YORK

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JOHN JIMENEZ,

Plaintiff, MEMORANDUM & ORDER

22-cv-3090 (JMA) (AYS)

-against-

FILED

CLERK

TOOLCHAND BISRAM: PAROLE OFFICER;

3:44 pm, Jul 10, 2024

ROGER CHUNG: SENIOR PAROLE OFFICER,

In their individual and personal capacity, U.S. DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

Defendants. LONG ISLAND OFFICE

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AZRACK, United States District Judge:

In this action, Pro Se Plaintiff John Jiminez alleges that Defendants Parole Officer

Toolchand Bisram and Senior Parole Officer Roger Chung violated 42 U.S.C. § 1983 when they

did not timely notify Plaintiff of his discharge from parole supervision. (See ECF No. 14, at 7–9

(“AC”).) Defendants—by their attorney Letitia James, Attorney General of the State of New

York—move to dismiss the Amended Complaint under Federal Rule of Civil Procedure 12(b)(6).

(See ECF No. 22 (“Defs.’ Mot.”).) Defendants’ motion is unopposed. For the below reasons, the

Court grants Defendants’ motion and dismisses Plaintiff’s claims in their entirety without leave to

replead.

I. BACKGROUND1

A. Factual Background

Plaintiff alleges that he was not timely notified of his discharge from parole supervision.

(See AC at 7–9.) Plaintiff was discharged from post-release supervision on March 15, 2022. (See

1 This Memorandum and Order draws its facts from Pro Se Plaintiff’s Amended Complaint (ECF No. 14

(“AC”)); Plaintiff’s exhibits attached thereto (see id.); and Defendants’ Memorandum of Law in Support of their

Motion to Dismiss (ECF No. 22 (“Defs.’ Mot.”)).

retroactive credit he received as part of the “Less is More Act.”2 (See id. at 9, 11; see also id. Ex.

A.) Plaintiff alleges that he was unlawfully on parole supervision for eleven months. (See id. ¶

38.)

B. Procedural History

On May 25, 2022, Plaintiff filed his original Complaint. (See ECF No. 1 (“Compl.”).) By

letter dated October 4, 2022, Defendants requested a pre-motion conference with respect to

Plaintiff’s original Complaint. (See ECF No. 11.) By Order dated March 17, 2023, the Court

dismissed Plaintiff’s 42 U.S.C. § 1983 claims and his claim brought under 18 U.S.C. §§ 241–42

sua sponte. (See ECF No. 13.) The Court granted Plaintiff leave to amend his Complaint to allege

a 42 U.S.C. § 1983 claim against Defendants in their individual capacities. (See id. at 7.) On April

17, 2023, Plaintiff filed an Amended Complaint. (See AC.) On October 19, 2023, Defendants

moved to dismiss the Amended Complaint under Federal Rule of Civil Procedure 12(b)(6). (See

Defs.’ Mot.) To date, Plaintiff has not opposed Defendants’ motion to dismiss.

II. DISCUSSION

A. Applicable Law

1. Motions to Dismiss Under Federal Rule of Civil Procedure 12(b)(6).

Defendants argue—among other things—that Plaintiff’s claims are inadequately pleaded.

“To survive a [Rule 12(b)(6)] 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

2 The “Less is More Act” took effect March 1, 2022 and provided that “[r]etroactive earned time credits shall

be awarded to eligible persons subject to community supervision at the time this legislation becomes effective.” N.Y.

Penal Law §70.40(4)(c); 2021 Sess. Law News of N.Y. Ch. 427 § 10 (S. 1144-A). The “Less is More Act” also

granted DOCCS and the parole board six months to calculate and award all earned time credits under the Act. See

2021 Sess. Law News of N.Y. Ch. 427 § 10 (S.1144-A).

reasonable inference that the defendant is liable for the misconduct alleged.’” Allco Fin. Ltd. v.

Klee, 861 F.3d 82, 94–95 (2d Cir. 2017) (quoting Iqbal, 556 U.S. at 678). “[A]lthough 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.” Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (internal

quotation marks and citation omitted, and alterations adopted); see also Rolon v. Henneman, 517

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F.3d 140, 149 (2d Cir. 2008) (explaining that a court need not accept “conclusory allegations or

legal conclusions masquerading as factual conclusions”) (internal citation omitted).

When—as here—the plaintiff is proceeding pro se, his complaint is “held to [a] less

stringent standard[ ] than formal pleadings drafted by lawyers.” Boykin v. KeyCorp, 521 F.3d 202,

214 (2d Cir. 2008) (internal quotation marks omitted). A district court must actively “interpret [his

complaint] ‘to raise the strongest arguments that [it] suggest[s].’” McPherson v. Coombe, 174

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

it is “beyond doubt” that a pro se plaintiff may “prove no set of facts in support of his claim[s]

which would entitle him to relief,” his complaint should not be dismissed. Thomas & Agnes Carvel

Found. v. Carvel, 736 F. Supp. 2d 730, 756 (S.D.N.Y. 2010) (quoting Leibowitz v. Cornell Univ.,

445 F.3d 586, 590 (2d Cir. 2006)). “That said, the liberal pleading standard accorded to pro se

litigants is not without limits, and all normal rules of pleading are not absolutely suspended.” Hill

v. City of N.Y., No. 13-cv-8901 (KPF), 2015 WL 246359, at *2 (S.D.N.Y. Jan. 20, 2015) (internal

quotation marks and citation omitted). A pro se plaintiff’s factual allegations still must at least “be

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

A court adjudicating a motion to dismiss under Rule 12(b)(6) “may review only a narrow

universe of materials.” Goel v. Bunge, Ltd., 820 F.3d 554, 559 (2d Cir. 2016). This narrow

complaint or incorporated in the complaint by reference, and matters of which judicial notice may

be taken.” Id. (internal citation omitted and alternations adopted); see also United States ex rel.

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Foreman v. AECOM, 19 F.4th 85, 106 (2d Cir. 2021).

B. Analysis

Defendants argue the Court must dismiss Plaintiff’s Amended Complaint with prejudice

for three reasons. First, Defendants argue that Plaintiff’s Section 1983 claims asserted against

them in an individual capacity fail to state a claim upon which relief may be granted. (See Defs.’

Mot. 4–6, 8–9.) Second, Defendants argue that––to the extent Plaintiff asserts Section 1983 claims

against them in their official capacities––such claims are barred by the Eleventh Amendment to

the United States Constitution. (See id. at 6–8.) Third (and alternatively), Defendants argue they

are entitled to qualified immunity for their actions. (See id. at 9–11.) The Court addresses the

pleading issues raised by Defendants seriatim.

1. Plaintiff’s Claims Asserted Under 42 U.S.C. § 1983 Against Defendants in

Their Individual Capacities Fails to State a Claim.

a) Applicable Law.

Section 1983 establishes liability against any person who, under the color of state law,

causes the deprivation “of any rights, privileges, or immunities secured by the Constitution.” 42

U.S.C. § 1983. Section 1983 “creates no substantive rights; it merely provides remedies for

deprivations of rights established elsewhere.” Swinson v. City of N.Y., No. 19-cv-11919 (KPF),

2022 WL 142407, at *4 (S.D.N.Y. Jan. 14, 2022) (quoting City of Okla. City v. Tuttle, 471 U.S.

808, 816 (1985)). A “[Section] 1983 claim has two essential elements: [i] the defendant acted

under color of state law; and [ii] as a result of the defendant’s actions, the plaintiff suffered a denial

of h[is] federal statutory rights, or h[is] constitutional rights or privileges.” Annis v. Cnty. of

Westchester, 136 F.3d 239, 245 (2d Cir. 1998).

his or her individual capacity, ‘a plaintiff must plead that each Government-official defendant,

through the official’s own individual actions, has violated the Constitution.’” McCluskey v.

Roberts, No. 20-4018, 2022 WL 2046079, at *3 (2d Cir. June 7, 2022) (summary order) (quoting

Tangreti v. Bachmann, 983 F.3d 609, 616 (2d Cir. 2020)). Failing to allege that a defendant was

personally involved in, or responsible for, the alleged constitutional violation 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); see also Dubois v. Beaury, No. 21-2096, 2022 WL 1701497, at

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*4 (2d Cir. May 27, 2022) (stating that “personal involvement of defendants in alleged

constitutional deprivations is a prerequisite to an award of damages under [Section] 1983”)

(internal quotation marks omitted)). That’s because “there is no special rule for supervisory

liability” for claims under Section 1983. Tangreti, 983 F.3d at 618. Rather, “a plaintiff must plead

and prove ‘that each Government-official defendant, through the official’s own individual actions,

has violated the Constitution.’” Id. (quoting Iqbal, 556 U.S. at 676).

The personal involvement of a supervisory official may be established under Section 1983

when:

(1) the defendant participated directly in the alleged constitutional violation,

(2) the defendant, after being informed of the violation through a report or

appeal, failed to remedy the wrong, (3) the defendant created a policy or

custom under which unconstitutional practices occurred, or allowed the

continuance of such a policy or custom, (4) the defendant was grossly

negligent in supervising subordinates who committed the wrongful acts, or

(5) the defendant exhibited deliberate indifference to the rights of inmates

by failing to act on information indicating that unconstitutional acts were

occurring.

Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995). Broad, conclusory allegations that a high-

ranking defendant was informed of an incident are also insufficient. See, e.g., Partee v. Grood,

No. 06-cv-15528 (SAS), 2007 WL 2164529, at *5 (S.D.N.Y. Jul. 25, 2007) (holding that a prison

protest....”).

b) Analysis.

Defendants argue that Plaintiff’s Section 1983 claims against them in their individual

capacities fail for two reasons.

First, Defendants argue that Plaintiff’s claim against Defendant Chung must be dismissed

because “Plaintiff does not allege that Senior Parole Officer Chung was personally involved in any

of the alleged misconduct. Further, the Amended Complaint fails to allege any specific instances

in which Chung participated in the alleged constitutional violation, failed to remedy it, fashioned

a policy under which it occurred, was grossly negligent in supervising subordinates, or exhibited

deliberate indifference by failing to act on information that unconstitutional acts were occurring.”

(Defs.’ Mot. 5.) The Court agrees with Defendants that Plaintiff has failed to plausibly allege that

Defendant Chung had any personal involvement in the alleged misconduct. Thus, Plaintiff has

failed to plausibly plead a Section 1983 claim against Defendant Chung, and his claim must be

dismissed against him. See Alfaro Motors, Inc., 814 F.2d at 886 (failure to allege that a defendant

was personally involved in, or responsible for, the alleged constitutional violation renders a

complaint “fatally defective on its face”); see also Morabito v. New York, 803 F. App’x 463, 466

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(2d Cir. 2020) (summary order), as amended (Feb. 27, 2020), cert. denied, 141 S. Ct. 244 (2020),

reh’g denied, 141 S. Ct. 886 (2020) (finding district court properly held that plaintiffs failed to

state Section 1983 claim against defendant in his individual capacity in the absence of factual

allegations establishing his personal involvement).

Second, Defendants argue that Plaintiff’s allegations under Section 1983 against both

parole officers “fail to state a claim upon which relief may be granted.” (Defs.’ Mot. 8.) The Court

agrees again, so Plaintiff’s claims against both Defendants must be dismissed. The Amended

constitutional right, other than to state that “defendants Senior Parole Officer Roger Chung and

Parole Officer Toolchand Bisram, in their individual and personal capacity, with malice, ill-will,

prejudice and spite, deliberately, intentionally and unlawfully held me on parole supervision for

an extra eleven (11) months to punish me for no legitimate penological goal or interest and to cause

injury by keeping me on parole after the BOARD OF PAROLE made their decision and discharged

me from my parole sentence.” (AC ¶ 32.) As is readily apparent, Plaintiff’s allegations are merely

legal conclusions unsupported by any facts, which the Court need not accept as true. See Harris,

572 F.3d at 72 (“[A]lthough 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.”) (internal quotation

marks and citation omitted, and alterations adopted); see also Twombly, 550 U.S. at 555

(explaining that courts “are not bound to accept as true a legal conclusion couched as a factual

allegation,” and that entitlement to relief “requires more than labels and conclusions, and a

formulaic recitation of the elements of a cause of action”) (internal quotation marks and citation

omitted).

2. Plaintiff’s Causes of Action Against Defendants in their Official Capacities

are Barred by the Eleventh Amendment and the Terms of 42 U.S.C. § 1983.

a) Applicable Law.

Defendants next argue that all claims asserted against them in their official capacities are

barred by the Eleventh Amendment and the terms of Section 1983. (See Defs.’ Mot. 6–8.) “The

Eleventh Amendment generally bars suits against a state in federal court.”3 Pikulin v. City Univ.

3 More specifically, the Eleventh Amendment bars suits for damages against states, state agencies, and state

officials acting in their official capacities, absent the state’s consent to suit or an express or statutory waiver of

immunity. See Board of Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356, 363 (2001). “It is well-established

that New York [State] has not consented to [Section] 1983 suits in federal court . . . and that [Section] 1983 was not

capacity, [courts] treat the suit as one against the ‘entity of which an officer is an agent.’”

D’Alessandro v. City of N.Y., 713 F. App’x 1, 8 (2d Cir. 2017) (summary order) (quoting Kentucky

v. Graham, 473 U.S. 159, 165–66 (1985)). “As an agency or arm of the State of New York, the

New York State Board of Parole, Division of Parole, is immune from suit under the Eleventh

Amendment.” Kalamaras v. New York State Div. of Parole, No. 15-cv-3775, 2015 WL 6760330,

at *2 (E.D.N.Y. Nov. 5, 2015); see also Garcia v. Div. of Parole Exec. Dep’t, No. 09-cv-2045, 2009

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WL 2392160, at *1 (E.D.N.Y. August 3, 2009) (state agencies such as the Division of Parole “‘are

entitled to assert the state’s Eleventh Amendment immunity where, for practical purposes, the

agency is the alter ego of the state and the state is the real party in interest’”) (quoting Santiago v.

N.Y.S. Dep’t of Corr. Serv., 945 F.2d 25, 28 n.1 (2d Cir. 1991)). This immunity extends to damages

claims against state officials acting in their official capacity. See, e.g., Jefferson v. Chicara, No.

13-cv-5649, 2014 WL 320501, at *3 (E.D.N.Y. Jan. 27, 2014) (citing Papasan v. Allain, 478 U.S.

265, 276 (1986)); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101–03 (1984)).

b) Analysis.

Here, to the extent that Plaintiff asserts Section 1983 claims against Defendants in their

official capacities, the Eleventh Amendment divests this Court of subject matter jurisdiction over

such claims. See Graham, 473 U.S. at 169 (“The Court has held that, absent waiver by the State

or valid congressional override, the Eleventh Amendment bars a damages action against a State in

federal court.”); see also Darcy v. Lippman, 356 F. App’x 434, 436–37 (2d Cir. 2009) (summary

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order) (“The Eleventh Amendment likewise bars [plaintiff] from pursuing a claim for damages

against the individual defendants in their official capacities.”). Accordingly, Plaintiff’s Section

intended to override a state sovereign immunity.” Mamot v. Board of Regents, 367 F. App’x 191–92 (2d Cir. 2010)

(summary order) (citations omitted).

of Civil Procedure 12(h)(3).4

3. Qualified Immunity.

Defendants argue in the alternative that they are entitled to qualified immunity for their

actions. (See Defs.’ Mot. 9–11.) The Court need not consider the issue, as it dismisses Plaintiff’s

Amended Complaint under Federal Rule of Civil Procedure 12(b)(6).

4. Leave to Amend.

Lastly, Defendants argue that the Court should dismiss Plaintiff’s Amended Complaint with

prejudice. (See Defs.’ Mot. 11.) “The Second Circuit has instructed courts not to dismiss a

complaint ‘without granting leave to amend at least once when a liberal reading of the complaint

gives any indication that a valid claim might be stated.’” Howard v. Brown, No. 15-cv-09930

(ER), 2018 WL 3611986, at *6 (S.D.N.Y. July 26, 2018) (quoting Shabazz v. Bezio, 511 F. App’x

28, 31 (2d Cir. 2013) (summary order)). However, where “the Court has put Plaintiff on notice of

the deficiencies in his original complaint and given him an opportunity to correct these deficiencies

in an Amended Complaint, but Plaintiff has failed to do so, dismissal with prejudice is

appropriate.” Coon v. Benson, No. 09-cv-00230 (SCR) (LMS), 2010 WL 769226, at *4 (S.D.N.Y.

Mar. 8, 2010). Here, the Court previously detailed the deficiencies in his original Complaint and

provided Pro Se Plaintiff leave to amend. (See ECF No. 13.) However, his Amended Complaint

4 The Court notes that Plaintiff’s Section 1983 claims must be dismissed for the additional reason that

“[n]either a state nor one of its agencies nor an official of that agency sued in his or her official capacity is a ‘person’

under [Section] 1983.” Spencer v. Doe, 139 F.3d 107, 111 (2d Cir. 1998); -se-e- a-ls-o -W-il-l v-. -M-ic-h.- D-e-p’-t o-f- S-ta-te- P-ol-ic-e,

491 U.S. 58, 71 (1989); K&A Radiologic Tech. Servs., Inc. v. Commissioner, 189 F.3d 273, 278 (2d Cir. 1999); Jones

v. New York State Div. of Military & Naval Affairs, 166 F.3d 45, 49 (2d Cir. 1998). Similarly, State officials cannot

be sued in their official capacities for monetary damages in federal court due to the same prohibition against suing the

States under § 1983. See generally Hafer v. Melo, 502 U.S. 21 (1991); see also Will, 491 U.S. at 71 (1989) (where

the court held that State officials “acting in their official capacities” are outside the definition of “persons” subject to

liability under § 1983.)

dismissed with prejudice without leave to replead.

III. CONCLUSION

For the above reasons, the Court GRANTS Defendants’ Motion to Dismiss Plaintiff’s

Amended Complaint (ECF No. 22) and DISMISSES Pro Se Plaintiff’s Amended Complaint in its

entirety without leave to replead.

Although Plaintiff paid the filing fee to commence this action, should he seek leave to

appeal in forma pauperis (“IFP”), the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any

appeal from this Order would not be taken in good faith and therefore IFP status is denied for the

purpose of any appeal. See Coppedge v. United States, 369 U.S. 438, 444–45 (1962).

The Clerk of the Court is respectfully directed to terminate the motion at ECF No. 22, to

enter judgment accordingly, and to close the case. The Clerk of the Court is moreover directed to

mail a copy of this Memorandum and Order to Pro Se Plaintiff at his address listed on ECF and

file proof of service on the docket.

SO ORDERED.

Dated: July 10, 2024

Central Islip, New York

/s/ JMA

JOAN M. AZRACK

UNITED STATES DISTRICT JUDGE