The opinion of the court was delivered by: JOHN E. SPRIZZO
Defendants in the above-captioned action move for summary judgment pursuant to Fed. R. Civ. P. 56(b). For the reasons that follow, that motion is granted.
Plaintiff, a former inmate in the Mid-Orange Correctional Facility,
brings this action pursuant to 42 U.S.C. § 1983 against parole officers James White and James McElwee, and the New York State Executive Branch Division of Parole alleging a violation of his due process rights during his appearances before the Executive Department Division of Parole in April and June of 1990. Plaintiff's first alleged due process violation concerns allegations that parole officers White and McElwee conspired and submitted insufficient, false, and misleading information on his Parole Summary report which had an adverse effect on his parole determination.
Plaintiff also asserts that he was denied his right to parole because as part of his participation in the "Prepared Release Program" ("PREP"), a program designed to give special rehabilitation to selected inmates to improve their chances for parole, he signed a contract which guaranteed him release at his first parole review meeting, but due to budget constraints this program was terminated prior to his first review. Plaintiff seeks damages from each of the individual defendants for the alleged violation of his due process rights.
A prisoner is not entitled to the protections of due process merely because a state provides for the possibility of parole. Greenholtz v. Inmates of Nebraska Penal & Correctional Complex, 442 U.S. 1, 60 L. Ed. 2d 668, 99 S. Ct. 2100 (1979). Any liberty interest warranting due process protection must, therefore, necessarily have its origin in a Greenholtz, 442 U.S. at 11-12. 442 U.S. at 11-12. Since New York's parole provisions do not create an entitlement to parole, Boothe v. Hammock, 605 F.2d 661, 664 (2d Cir. 1979), any alleged unfairness in plaintiff's parole hearing does not and cannot afford a predicate for relief under Section 1983, Russo v. New York State Board of Parole, 50 N.Y.2d 69, 75, 427 N.Y.S.2d 982, 405 N.E.2d 225 (1980). See Brandon v. District of Columbia Board of Parole, 262 U.S. App. D.C. 236, 823 F.2d 644 (D.C. Cir. 1987). See, e.g., Yale Auto Parts, Inc. v. Johnson, 758 F.2d 54, 58 (2d Cir. 1985).
Moreover, plaintiff's claimed injury due to the cancellation of PREP is also not actionable under Section 1983.
Even assuming arguendo that the alleged contract guaranteed release and thus created a constitutionally protected property interest, plaintiff received an adequate state court remedy, i.e., a breach of contract cause of action. See, e.g., S & D Maintenance Co. v. Goldin, 844 F.2d 962, 966 (2d Cir. 1988) (even if all public contracts warranted due process protection, in most circumstances post-deprivation state court remedies would provide all the process that is due).
Accordingly, for the reasons given above, defendants' motion for summary judgment shall be and hereby is granted. The Clerk of the Court is directed to close the above-captioned action.
Dated: New York, New York