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April 15, 1996


The opinion of the court was delivered by: SEYBERT

 SEYBERT, District Judge:

 Plaintiff Ronald Roucchio, proceeding pro se, brings this action pursuant to 42 U.S.C. § 1983 to recover damages from several state officials connected with the administration or oversight of the work release program at Queensboro Correctional Facility, where plaintiff previously was incarcerated. The plaintiff, who is presently out on parole, alleges that he was deprived of his right to procedural due process, in violation of the Fourteenth Amendment, through the State's revocation of his right to participate in a work release program without permitting him an opportunity to be heard until approximately seven months later.]

 Pending before the Court are two separate motions. First, the defendants move, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss the plaintiff's complaint in its entirety for failure to state a claim; alternatively, the defendants move for summary judgment pursuant to Fed. R. Civ. P. 56. Second, the plaintiff cross-moves for summary judgment against each of the defendants. For the reasons that follow, both of these motions are denied in their entirety.


 The following facts are undisputed, except as where otherwise noted.

 At the time of the events in suit, plaintiff was a participant in the work release program at Queensboro Correctional Facility. Plaintiff commenced participation in the work release program in June of 1990, and until the events in question transpired, his performance was "satisfactory."

 While on work release, plaintiff was arrested on March 13, 1991 for driving while intoxicated, driving without a license, and speeding. Plaintiff, however, did not notify the work release authorities of his arrest. Rather, correctional authorities did not learn of his arrest until September 11, 1991, whereupon a parole officer issued an "inmate misbehavior report" charging the plaintiff with violating the rules and regulations of the temporary release program in connection with the circumstances attending his arrest, his failure to notify work release authorities of this arrest, and for driving a car without permission. On October 17, 1991, plaintiff pled guilty to the traffic infraction of operating a motor vehicle while impaired by the consumption of alcohol, in violation of section 1192(1) of the New York Vehicle and Traffic Law. See Lerner Aff., Ex. A, at 9; N.Y. Veh. & Traf. Law § 1192(1) (McKinney 1986) (describing a violation of this subsection as a "traffic infraction"); see also N.Y. Veh. and Traf. Law § 155 (McKinney 1986 & Supp. 1996) ("A traffic infraction is not a crime and the punishment imposed therefor shall not be deemed for any purpose a penal or criminal punishment . . . .").

 Immediately upon the issuance of the inmate behavior report, plaintiff was placed in segregated confinement in the Special Housing Unit at the Queensboro Correctional Facility [the "SHU"]. Plaintiff remained in the SHU, without being afforded an opportunity to be heard, for 47 days, until October 28, 1991. As a result of his segregated confinement, plaintiff was prohibited from going to work. See Pl.'s Supp. Aff., at 2 (Docket # 18).

 On October 22, 1991, the Temporary Release Committee met to review and evaluate the plaintiff's conduct. A separate disciplinary hearing was not held in tandem with this proceeding. Meeting without the plaintiff in attendance, the Temporary Release Committee recommended that plaintiff be removed from the Queensboro work release program. The committee report was approved by the Superintendent of the facility on October 26, 1991. This decision subsequently was affirmed by the New York State Director of Temporary Release Programs.

 By petition dated January 22, 1992, plaintiff instituted a proceeding pursuant to Article 78 of the New York Civil Practice Law & Rules challenging his removal from the work release program [the "Article 78 proceeding"]. In the notice of petition, plaintiff claimed, among other things, that his "right to due process, as provided for by the constitutions of this state and of the United States of America was violated" because he did not receive a hearing before the Temporary Release Committee prior to his formal removal from the work release program. Lerner Aff., Ex. A, at 2.

 On or about April 17, 1992, the plaintiff was notified that a hearing had been scheduled for April 22, 1992 to consider his removal from the work release program. The plaintiff, however, refused to attend the hearing. See Compl. at 4. This hearing was then conducted in plaintiff's absence on April 23, 1992. As a result of this hearing, it was again determined that plaintiff should be removed from the work release program.

 By decision dated June 18, 1992, the Supreme Court, Queens County, dismissed plaintiff's Article 78 petition on the ground that plaintiff's "removal from the work release program was lawful." Roucchio v. Coughlin, slip op., at 2 (Sup. Ct. Queens County June 18, 1992) (Lerner Aff., Ex. D). The court found that the plaintiff had been transferred out of Queensboro Correctional Facility on October 4, 1991, and that on October 22, 1991 the Temporary Release Committee at Queensboro convened in the plaintiff's absence "although the committee report indicates otherwise." Id. at 1. The court concluded, however, that "if the [plaintiff] was initially removed from the work release program without being accorded those hearings required by regulation (see NYCRR § 1904.2), the respondent remedied this omission by providing the [plaintiff] with an opportunity to appear for a removal hearing in April 1992." Id. at 2.

 On July 6, 1992, plaintiff appealed the judgment of the Supreme Court to the Appellate Division, Second Department. While this appeal was pending, the plaintiff was released on parole. On October 17, 1994, the Second Department unanimously affirmed the dismissal of the petition, finding that the plaintiff "failed to establish that the respondent violated any statutory requirement or denied his constitutional rights in reaching his determination." Roucchio v. Coughlin, 208 A.D.2d 749, 618 N.Y.S.2d 548 (App. Div. 2d Dep't 1994) (Lerner Aff., Ex. I).

 On September 13, 1994, plaintiff commenced the present action alleging that the defendants, by removing him from the work release program, violated his due process rights because he was not provided any notice of the October 22, 1991 hearing that resulted in his formal removal from the program.

 The defendants now move to dismiss plaintiff's complaint, and alternatively move for summary judgment, while the plaintiff has cross-moved for summary judgment. The defendants set forth three arguments in support of their application. First, the defendants contend that the plaintiff fails to state a cause of action under 42 U.S.C. § 1983 because he is unable to establish the existence of a liberty interest of which he was deprived. Second, the defendants assert that, having been accorded a full and fair opportunity to litigate substantially identical claims in an Article 78 proceeding, the plaintiff is barred by the doctrines of res judicata and collateral estoppel from bringing the present action before this Court. Finally, defendant Coughlin, the Commissioner of the New York State Department of Correctional Services at the time of the events in suit, argues that the plaintiff fails to allege his personal involvement in a constitutional deprivation.

 The plaintiff, meanwhile, in addition to opposing the defendants' contentions, asserts that the facts of this case are uncontroverted, and cross-moves for summary judgment on the ground that the defendants' conduct in removing him from the work release program without a hearing deprived him of a constitutionally protected interest without due process of law.


 I. Treatment of Exhibits Attached to Defendants' Motion to Dismiss

 As an initial matter, the defendants, in their moving papers, raise a question concerning the Court's treatment of certain matters of public record relating to the plaintiff's Article 78 proceeding in the New York State courts that the plaintiff has referred to in his complaint, but has not attached as exhibits to his complaint. These items include the applications, briefs and documents submitted to the New York State courts, as well as the decisions of the New York State courts, in connection with the plaintiff's Article 78 proceeding and subsequent appeal to the Appellate Division. The defendants have submitted these items as exhibits in support of their motion to dismiss, and contend that the Court may consider them either pursuant to Fed. R. Civ. P. 10(c), as having been incorporated by reference into the plaintiff's complaint, *fn1" or by converting the defendants' motion into an application for summary judgment pursuant to Fed. R. Civ. P. 56. The latter conversion procedure is set forth under Fed. R. Civ. P. 12(b), which states, in pertinent part:

If, on a motion [pursuant to Fed. R. Civ. P. 12(b)(6)] matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

 Fed. R. Civ. P. 12(b). In connection with the Court's treatment of this matter, the Court observes that the plaintiff has cross-moved for summary judgment, and contends that the facts of this case are uncontroverted. See Pl.'s Mem. of Law, at 16 (Docket # 12).

 It is well established that when a "plaintiff fails to introduce a pertinent document as part of his pleading, [a] defendant may introduce the exhibit as part of his motion attacking the pleading." 5 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure: Civil 2d § 1327, at 762-63 (1990). In Cortec Industries v. Sum Holding L.P., 949 F.2d 42 (2d Cir. 1991), cert. denied, 112 S. Ct. 1561 (1992), the Second Circuit Court of Appeals reaffirmed that the submission of documents referred to in the complaint as exhibits in support of a Rule 12(b)(6) motion is not considered reliance on outside materials so as to require the recharacterization of a motion to dismiss as one seeking summary judgment. See id. at 47-48. The Second Circuit, in Cortec, further noted that a court may consider documents annexed to the movant's papers which, although not annexed to the complaint, plaintiff either had "in [his] possession or had knowledge of and upon which [he] relied in bringing suit." Id. at 48.

 In the present case, the plaintiff has not objected to the defendants' submission of the court documents pertaining to the Article 78 proceeding; indeed, in cross-moving for summary judgment, the plaintiff contends that the facts of this case are uncontroverted. Further, the Court observes that judicial notice of the annexed court documents is appropriate, because they are a matter of public record, and the accuracy of the copies submitted has not been disputed by the plaintiff. Thus, the subject documents are properly regarded as having been incorporated by reference into the complaint itself "because there was undisputed notice to [the] plaintiff[] of their contents and they were integral to [plaintiff's] claim." Id. Accordingly, the Court will consider these exhibits on defendants' motion to dismiss the complaint.

 A further preliminary question arises as to whether the Court should treat the defendants' motion as seeking summary judgment, in addition to dismissal under Fed. R. Civ. P. 12(b)(6), because the plaintiff, himself, has cross-moved for summary judgment asserting that no material facts are in dispute. The Court declines, however, to accord this treatment to the defendants' motion inasmuch as the plaintiff is proceeding pro se, and therefore should not be deemed to have knowingly waived his right to present additional evidence--in the event the complaint survives the defendants' motion to dismiss--simply because he has brought a cross-motion for summary judgment. Cf. Kopec v. Coughlin, 922 F.2d 152, 155 (2d Cir. 1991) (district court erred in converting defendant's motion to dismiss into one for summary judgment without giving plaintiff notice and an opportunity to offer evidence to controvert that submitted by defendant); Ortiz v. Cornetta, 867 F.2d 146, 148 (2d Cir. 1989) (where motion to dismiss is treated as one for summary judgment, pro se plaintiff must be afforded a reasonable opportunity to present all relevant material). Thus, as long as plaintiff's complaint is able to withstand the defendants' Rule 12(b)(6) motion, the Court will cease to consider the defendants' offensive posture, and will turn to address the plaintiff's cross-motion for summary judgment.

 II. Standards Governing Rule 12(b)(6) Motion to Dismiss

 A district court should grant a motion to dismiss under Rule 12(b) of the Federal Rules of Civil Procedure only if "'it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.'" H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 249-50, 109 S. Ct. 2893, 2906, 106 L. Ed. 2d 195 (1989) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S. Ct. 2229, 2232, 81 L. Ed. 2d 59 (1984)). In applying this standard, a district court must "read the facts alleged in the complaint in the light most favorable" to the plaintiff, and accept these allegations as true. Id. at 249, 109 S. Ct. at 2906; see Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 1686, 40 L. Ed. 2d 90 (1974); see also Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 113 S. Ct. 1160, 1163, 122 L. Ed. 2d 517 (1993) (citing Fed. R. Civ. P. 8(a)(2) to demonstrate liberal system of 'notice pleading' employed by the Federal Rules of Civil Procedure). In ...

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