The opinion of the court was delivered by: NEAL P. MCCURN
MEMORANDUM-DECISION AND ORDER
Plaintiff pro se filed this suit pursuant to 42 U.S.C. § 1983 on January 12, 1993, alleging that defendants violated his right to due process under the Fourteenth Amendment. Plaintiff alleges, inter alia, that defendants used the details of his prior sealed arrest record, without him granting them the necessary permission to do so, in violation of N.Y. Crim. Proc. Law § 160.50. Plaintiff invokes this court's jurisdiction over his claims pursuant to 28 U.S.C. § 1331 (West 1988) (federal question). Presently before the court is defendants' motion to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6). For the reasons stated below, the court grants defendants' motion to dismiss but does so without prejudice to plaintiff to amend his complaint.
It appears from the complaint that plaintiff's troubles began when an officer from the Child Abuse Unit of the Syracuse Police Department arrested him on August 31, 1989.
See Complaint at 6, line 18. Significantly, plaintiff was on parole at the time of his arrest. Id. at 7, line 1. According to the complaint, the arresting officer did not take plaintiff into custody but rather issued him two citations to appear in court the following day, September 1, 1989. Id. at 6, line 19. At that subsequent court proceeding, the judge released plaintiff on his own recognizance pending the police department's investigation into the alleged incident. Id. at 6, line 24.
On September 6, 1989, the Division of Parole took plaintiff into custody for allegedly violating his parole. See Complaint at 7, line 1. Plaintiff does not specify which provision of his parole he allegedly violated. He does state, however, that the August 28, 1989, incident with his minor child and his subsequent arrest on August 31, 1989, resulted in his parole revocation. Id. at 7, line 2. At plaintiff's final parole revocation hearing, on November 14, 1989, the hearing officer determined that plaintiff had not violated his parole supervision and recommended that plaintiff be released back into supervised parole. Id. at 7, line 4. Despite this recommendation, however, plaintiff was returned to state prison as a parole violator on December 4, 1989. See Complaint at 7, line 7. On December 12, 1989, the state court found plaintiff not guilty of the charges leading to his August 31, 1989, arrest. See id. at line 9. This ruling, however, did not permit plaintiff to return to supervised parole. Thus, he remained incarcerated, presumably for the parole violation, until June 1992. See Plaintiff's Response Papers at P 10.a. This acquittal, however, did permit the record of his arrest to be sealed pursuant to N.Y. Crim. Proc. Law § 160.50. Therefore, on August 13, 1990, plaintiff asserts that, in fact, the record was sealed. Id. at 7, line 19.
According to plaintiff's complaint, on November 2, 1992, five months after plaintiff's release from prison, a Parent Aid Worker ("P.A. worker")
made her weekly visit to the residence of plaintiff's wife ("Mrs. Gould") to inquire about the welfare of Mrs. Gould's third child.
Id. at 8, line 4. While visiting with Mrs. Gould, the P.A. worker encountered plaintiff at the residence. Id. at 8, line 5. According to plaintiff, the P.A. worker left the residence and made a phone call to report that she had seen plaintiff at the residence and that she suspected an incident of child abuse. See Complaint at 8, lines 8-25. Later that same day, an investigator from the Child Protective Services Division of Onondaga County ("CPSD") visited the residence, presumably to follow up on the report of the P.A. worker. Id. at lines 20-21. The CPSD investigator subsequently filed a report of child abuse against plaintiff and his wife. Id. Plaintiff asserts that both the P.A. worker and the CPSD investigator had complete knowledge of his August 31, 1989, arrest despite the arrest record having been sealed. Id. at lines 5-26. Plaintiff further asserts that the filing of child abuse reports by the P.A. worker and the CPSD investigator were based impermissibly, at least in part, upon their knowledge of the August 31, 1989, arrest. Id. at 8, lines 5-26.
Plaintiff goes on to state that on December 31, 1992, a Family Court judge granted a CPSD investigator an order of protection, presumably allowing the investigator to remove Mrs. Gould's third child from plaintiff's custody.
See Complaint at 9, line 13. Plaintiff alleges further that on January 11, 1993, the CPSD investigator filed a petition in Family Court that impermissibly revealed the contents of the sealed information relative to plaintiff's August 31, 1989 arrest.
Id. at 9, lines 18-20. Plaintiff asserts that the CPSD investigator who filed the court petition, as well as the P.A. worker who visited Mrs. Gould's residence, obtained their information about the August 31, 1989, arrest through their respective agencies and in direct violation of plaintiff's right to a hearing and N.Y. Crim. Proc. Law § 160.50.See Complaint at 9, lines 18-26; at 10, lines 21-27.
Plaintiff asserts that he was deprived of due process with respect to his supervised parole. Defendants, in response, move to dismiss the complaint on the ground that plaintiff has failed to allege any facts to support his claim.
The court cannot grant a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) unless it appears from the face of the complaint that the plaintiff cannot prove any set of facts in support of its claim that would entitle it to relief. Easton v. Sundram, 947 F.2d 1011, 1015 (2d Cir. 1991), cert. denied, 112 S. Ct. 1943, 118 L. Ed. 2d 548 (1992); Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991); Esposito v. Metro-North Commuter R.R. Co., 91- CV-946, 1992 U.S. Dist. LEXIS 9907, at *7, (N.D.N.Y. July 8, 1992). In determining whether a complaint is sufficient on its face, the court must accept all the facts alleged by the plaintiff as true. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, U.S. , , 113 S. Ct. 1160, 1161, 122 L. Ed. 2d 517 (1993); Easton, 947 F.2d at 1014-15; Shackelton v. Connecticut Gen. Life Ins. Co., 817 F. Supp. 277, 279 (N.D.N.Y. 1993) ("the court is obligated to accept as true the facts alleged in plaintiff's complaint."). In addition, the court must construe the complaint in the light most favorable to the plaintiff. Bankers Trust Co. v. Rhoades, 859 F.2d 1096, 1098 (2d Cir. 1988), cert. denied, 490 U.S. 1007, 109 S. Ct. 1643, 104 L. Ed. 2d 158 (1989); Greenfield v. Suzuki Motor Co. Ltd., 776 F. Supp. 698, 700-01 (E.D.N.Y. 1991).
Moreover, when the court encounters a pro se plaintiff's complaint, it is obligated to afford that plaintiff every reasonable opportunity to demonstrate a valid claim. LaBounty v. Adler, 933 F.2d 121, 122 (2d Cir. 1991); Branum, 927 F.2d at 705. As such, this court must hold pro se complaints to a less rigorous standard than it would hold formal pleadings drafted by lawyers. Hughes v. Rowe, 449 U.S. 5, 9, 101 S. Ct. 173, 176, 66 L. Ed. 2d 163, (1980); Frasier v. United States Dep't of Health and Human Servs., 779 F. Supp. 213, 217 (N.D.N.Y. 1991) ("pro se complaints, however obscure, must be held to less stringent standards than formal pleadings drafted by ...