On October 28, 1991, in light of the Superintendent's decision removing the plaintiff from the Queensboro work release program, plaintiff was transferred from the Queensboro Correctional Facility to the Fishkill Correctional Facility, where he awaited a final transfer to the Franklin Correctional Facility.
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,
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 addition, the Supreme Court has instructed that where, as in this case, the plaintiff is proceeding pro se, the district court must liberally construe the complaint's allegations. See Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 596, 30 L. Ed. 2d 652 (1972).
III. Sufficiency of Plaintiff's Claims under 42 U.S.C. § 1983
The defendants assert that the plaintiff's complaint must be dismissed in its entirety because it fails to state a claim under 42 U.S.C. § 1983.
42 U.S.C. § 1983 allows an individual to bring suit against persons who, under color of state law, have caused him to be "deprived of any rights, privileges, or immunities secured by the Constitution and laws" of the United States. 42 U.S.C. § 1983. "Section 1983 itself creates no substantive rights; it provides only a procedure for redress for the deprivation of rights established elsewhere." Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993) (citing City of Oklahoma City v. Tuttle, 471 U.S. 808, 816, 105 S. Ct. 2427, 2432, 85 L. Ed. 2d 791 (1985)), cert. denied, 114 S. Ct. 2749 (1994). In order to state a claim cognizable under section 1983, "'a plaintiff must allege (1) that the challenged conduct was attributable at least in part to a person acting under color of state law, and (2) that such conduct deprived the plaintiff of a right, privilege or immunity secured by the Constitution or laws of the United States.'" Eagleston v. Guido, 41 F.3d 865, 876 (2d Cir. 1994) (quoting Dwares v. City of New York, 985 F.2d 94, 98 (2d Cir. 1993)), cert. denied, 116 S. Ct. 53 (1995).
The first step in analyzing a § 1983 claim is to identify the specific federal right allegedly infringed. See Albright v. Oliver, 127 L. Ed. 2d 114, 114 S. Ct. 807, 811 (1994). In the instant case, the plaintiff asserts that he was deprived of his Fourteenth Amendment right to procedural due process as a result of the defendants' failure to afford him a timely opportunity to be heard in connection with his removal from the work release program. Otherwise stated, plaintiff alleges that the defendants deprived him of a liberty interest in his continued participation in the work release program without affording him constitutionally sufficient procedures.
The Fourteenth Amendment provides in part that no State shall "deprive any person of life, liberty, or property, without due process of law . . . ." U.S. Const. amend. XIV, § 1. This component, otherwise known as the safeguard of procedural due process, "protects 'the individual against arbitrary action of government.'" Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 460, 109 S. Ct. 1904, 1908, 104 L. Ed. 2d 506 (1989) (quoting Wolff v. McDonnell, 418 U.S. 539, 558, 94 S. Ct. 2963, 2975, 41 L. Ed. 2d 935 (1974)). As the Supreme Court has explained, procedural due process questions are analyzed in two steps:
the first asks whether there exists a liberty or property interest which has been interfered with by the State, see Board of Regents v. Roth, 408 U.S. 564, 571, 92 S. Ct. 2701, 2706, 33 L. Ed. 2d 548 (1972); the second examines whether the procedures attendant upon that deprivation were constitutionally sufficient. See Hewitt v. Helms, 459 U.S. 460, 472, 103 S. Ct. 864, 871, 74 L. Ed. 2d 675 (1983). The types of interests that constitute "liberty" and "property" for Fourteenth Amendment purposes are not unlimited; the interest must rise to more than "an abstract need or desire," Board of Regents, 408 U.S. at 577, 92 S. Ct. at 2709, and must be based on more than "a unilateral hope." Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458, 465, 101 S. Ct. 2460, 2464, 69 L. Ed. 2d 158 (1981). Rather, an individual claiming a protected interest must have a legitimate claim of entitlement to it.
Kentucky Dep't of Corrections, 490 U.S. at 460, 109 S. Ct. at 1908 (citation forms modified).
"Protected liberty interests 'may arise from two sources--the Due Process Clause itself and the laws of the States.'" Id. (quoting Hewitt, 459 U.S. at 466, 103 S. Ct. at 868). In the present case, the plaintiff contends that a protected liberty interest attending his removal from the work release program may be implied under either the Due Process Clause of the Fourteenth Amendment or New York's regulations governing work release. The Court will examine each of these contentions in turn.
A. Inherent Liberty Interest under Due Process Clause
The plaintiff contends that a liberty interest in his continued participation in the work release program arises directly under the Due Process Clause. According to the plaintiff, his participation in the work release program can be analogized to other conditional restrictions imposed upon a prisoner's freedom--such as parole, probation and conditional release programs--the revocation of which have been held to be protected by the Due Process Clause of its own force. See, e.g., Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S. Ct. 1756, 1760, 36 L. Ed. 2d 656 (1973) (revocation of probation status); Morrissey v. Brewer, 408 U.S. 471, 482, 92 S. Ct. 2593, 2601, 33 L. Ed. 2d 484 (1972) (revocation of parole); Edwards v. Lockhart, 908 F.2d 299, 302 (8th Cir. 1990) (revocation of participation in program bearing many of the same characteristics as parole); see also Harper v. Young, 64 F.3d 563, 566-67 (10th Cir. 1995) ("[A] prisoner release program which permits a convict to exist, albeit conditionally, in society on a full-time basis more closely resembles parole or probation than even the more permissive forms of institutional confinement."), petition for cert. filed, No. 95-1598 (U.S. Apr. 4, 1996); United States v. Stephenson, 928 F.2d 728, 732 (6th Cir. 1991) (finding inherent liberty interest in continued placement in supervised release program that allowed convicts to live in society).
Consistent with "the necessary withdrawal or limitation of many privileges and rights" that results from a valid judgment of conviction, the Due Process Clause itself provides a prisoner with only limited procedural protections. Sandin v. Conner, 132 L. Ed. 2d 418, 115 S. Ct. 2293, 2301 (1995) (internal quotations omitted).
"Indeed, the Supreme Court has inferred inherent due process protections only in cases in which the prisoner's 'release from institutional life altogether' has been revoked, or in cases in which the restrictions imposed go beyond the original conditions of confinement." Whitehorn v. Harrelson, 758 F.2d 1416, 1421 (11th Cir. 1985) (quoting Hewitt, 459 U.S. at 468, 103 S. Ct. at 869) (other citations omitted); see Gagnon, 411 U.S. at 782, 93 S. Ct. at 1760 (revocation of probation status); Morrissey, 408 U.S. at 482, 92 S. Ct. at 2601 (revocation of parole); see also Washington v. Harper, 494 U.S. 210, 221-22, 110 S. Ct. 1028, 1036-37, 108 L. Ed. 2d 178 (1990) (independent of any state regulation, an inmate has a liberty interest in being protected from the involuntary administration of antipsychotic drugs); Vitek v. Jones, 445 U.S. 480, 493-94, 100 S. Ct. 1254, 1264, 63 L. Ed. 2d 552 (1980) (prisoner involuntarily transferred to state mental hospital); cf. Sandin, 115 S. Ct. at 2300 (citing Vitek and Washington to illustrate where the conditions of confinement exceeded the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force).
The plaintiff asserts that his participation in the work release program bears similarities to parole, and therefore is afforded protection by the Due Process Clause independent of any state regulation. According to the plaintiff, his participation in the work release program lasted approximately 15 months, from June 1990 through September 1991. When his work release program began, plaintiff lived at the Queensboro Correctional Facility. Soon afterwards, however, he was permitted to spend increasing amounts of time at home. At first, he was permitted to live at home one night a week. This allowance was then increased to two nights a week. Subsequently, he was placed on "4" and "3" status, wherein a prisoner lives outside the facility four nights a week, and sleeps at the facility three nights a week. Once he obtained a permanent job, plaintiff switched to "5" and "2" status (five nights per week at home, and two nights per week sleeping at the facility). At the time that his work release privileges were revoked, plaintiff had been on "5" and "2" status for a period of approximately thirteen months, had a full-time job, was living at home with his mother, and reported only twice a week to Queensboro Correctional Facility to sleep over and meet with his counselor. See Pl.'s Supp. Aff., at 1 (Docket # 18). The plaintiff argues, therefore, that these conditions mirror those of parole, and that consequently the revocation of these privileges should implicate due process safeguards.
Although the plaintiff establishes some similarities between the conditions of his work release program and parole, the differences between the two are sufficiently substantial to warrant the conclusion that his participation in the work release program is not independently protected by the Due Process Clause. Specifically, as plaintiff himself acknowledges, at the time that his work release privileges were revoked, he was on "5" and "2" status, meaning that he was required to spend two nights a week sleeping at the institution. Thus, although the plaintiff "did enjoy some conditional liberty while participating in the work release program, he had not been released from institutional life altogether." Whitehorn, 758 F.2d at 1421; see Edwards, 908 F.2d at 302. The significance of this indicia of incarceration is explained in a recent decision of the Tenth Circuit Court of Appeals:
The dispositive characteristic that marks the point at which the Due Process Clause itself implies a liberty interest . . . is the fact of release from incarceration. The liberty associated with a life outside the walls of a penal facility dwarfs that available to an inmate . . . . It is the ability to reside in a home of one's own, without bars or fences or bonds, beyond the immediate authority of guards or wardens. The passage outside the walls of a prison does not simply alter the degree of confinement; rather, it works a fundamental change in the kind of confinement, a transformation that signals the existence of an inherent liberty interest and necessitates the full panoply of procedural protections outlined in Morrissey.