Aff,") as Ex, Ex. E, ("Tr."), at 33-36, 41-43,) Preston's parole
was revoked. The written decision acknowledged that, as Preston
had objected, the Certificate was incorrect, and determined that
the revocation of parole was based on unrelated "charges of
criminal contempt and disrupting the criminal court
proceedings." (Parole Revocation Decision Notice, attached as
Ex. D to the Nowve Aff. (the "Parole Decision"), at 2-3.)
Preston contested those charges during the proceeding. (See
Tr., at 16, 2631, 36, 38.)
Although he raised the issue in his pleadings, (see Compl.,
at ¶ 20), Preston does not contend that the inaccurate
Certificate caused the judge to revoke his parole. (See
Affirmation in Opposition to Defendant's Motion to Dismiss
Defendant Crystal Bailey ("Opposition Aff."), at ¶ 13.) Rather,
Preston argues that by providing false information in the
Certificate, Bailey deprived him of due process during the
Hearing. (See id.)
Preston asserts that as a result of these deprivations of
constitutional rights, he has been subjected to various forms of
mental distress, loss of potential income and liberty.
Furthermore, although he believes the events ended on November
15, 2000,*fn5 he continues to suffer injuries to his
reputation, a decline in his physical health, and loss of
Preston initially filed two actions which were consolidated
and dismissed with leave to replead by Chief Judge Michael B.
Mukasey on August 21, 2000 (the "Dismissal Decision"). Preston
then filed the Amended Complaint, which forms the basis of this
action, on October 13, 2000. The case was reassigned to this
Court. The action was again dismissed for Preston's failure to
comply with Federal Rule of Civil Procedure 4(m), which requires
that a plaintiff serve the complaint on defendants within 120
days of filing.
By Order dated April 3, 2001, the Court granted Preston's
request to reinstate the matter and granted Preston an extension
of time to serve the defendants and identify the John Doe
defendants. Preston filed the Second Amended Complaint on May 4,
2001 and initiated service through the United States Marshal
(the "Marshal"). See 28 U.S.C. § 566; Romandette v. Weetabix
Co., 807 F.2d 309 (2d Cir. 1986) (a plaintiff who has provided
the Marshal with sufficient service information is entitled to
rely on the Marshal to serve the complaint in a timely manner).
On behalf of pro se plaintiffs, the Marshal typically will
serve defendants by mail, or, if service cannot be effected by
mail, by personal service. See District Executive's Office,
United States District Court for the Southern District of New
York, A Manual for Pro Se Litigants Appearing Before the United
States District Court for the Southern District of New York
(1993), at 47. Preston requested another extension of time to
serve the Second Amended Complaint on defendants.
Proofs of service were filed for defendants Bailey, Bronx
Lebanon, Garcia, and the City Defendants, including ACS, Matos,
White, NYPD, Marchman and Quintana. No proofs of service were
filed for Dr. Bailey or Jimmenez. Defendants Garcia and the
State of New York never filed an answer or other response. The
City Defendants filed an answer. Bailey and Bronx Lebanon filed
motions to dismiss.
A. STANDARD OF REVIEW
Defendants seek dismissal of the Complaint on several grounds
Federal Rule of Civil Procedure 12(b). The Court considers the
jurisdictional issues first, because a dismissal for lack of
jurisdiction renders all other claims moot. Ruhrgas A.G. v.
Marathon Oil Co., 526 U.S. 574, 583, 119 S.Ct. 1563, 143
L.Ed.2d 760 (1999) ("Article III generally requires a federal
court to satisfy itself of its jurisdiction over the subject
matter before it considers the merits of a case."); Calero v.
Immigration and Naturalization Service, 957 F.2d 50 (2d Cir.
1992); Da Silva v. Kinsho Int'l Corp., 229 F.3d 358 (2d Cir.
1. Federal Rule of Civil Procedure 12(b)(1)
Because federal courts are courts of limited jurisdiction,
courts must police subject matter delineations on their own
initiative. See Fed.R.Civ.P. 12(h); Ruhrgas, 526 U.S. at
583, 119 S.Ct. 1563; Lyndonville Savings Bank & Trust Co. v.
Lussier, 211 F.3d 697, 700 (2d Cir. 2000) ("[F]ailure of
subject matter jurisdiction is not writable and may be raised at
any time by a party or the court sua sponte."). When motion to
dismiss pursuant to Rule 12(b)(1) is brought, it is the Court's
duty to resolve disputed jurisdictional facts. See Cargill
International S.A. v. M/T Pavel Dybenko, 991 F.2d 1012, 1019
(2d Cir. 1993); see also Ruhrgas, 526 U.S. at 583, 119 S.Ct.
1563. The Court may fulfill its duty by reference to evidence
outside the pleadings. See Zappia Middle East Construction Co.
v. Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d Cir. 2000).
Furthermore, in resolving a challenge to subject matter
jurisdiction, the Court does not draw inferences in favor of the
plaintiff. See Newsom-Lang v. Warren International,
129 F. Supp.2d 662, 663-64 (S.D.N.Y. 2001).
2. Federal Rule of Civil Procedure 12(b)(6)
A district court may grant a motion to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6) only if it appears
beyond doubt that the non-moving party could prove no set of
facts that would entitle it to relief. See Hishon v. King &
Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59
(1984); Valmonte v. Bane, 18 F.3d 992, 998 (2d Cir. 1994). In
reviewing the pleadings, a court must accept the non-moving
party's well-pleaded allegations as true. See Hishon, 467 U.S.
at 73, 104 S.Ct. 2229.
A court may consider documents attached to the complaint as
exhibits, or incorporated by reference, as well as any documents
that are integral to, or explicitly referenced in, the pleading.
See I. Meyer Pincus & Associates v. Oppenheimer & Co., Inc.,
936 F.2d 759, 762 (2d Cir. 1991). In addition, a Court may
consider "matters of which judicial notice may be taken." Brass
v. American Film Technologies, 987 F.2d 142, 150 (2d Cir.
1993); see also Tsai v. Rockefeller University, 137 F. Supp.2d 276,
n. 2 (S.D.N.Y. 2001) (a court "may take judicial notice of
reports of administrative bodies without converting a motion to
dismiss into one for summary judgment."); Fed.R.Evid. 201(b).
Where a party appears pro se, the Courts are required to
broadly construe that party's pleadings and interpret them "to
raise the strongest argument they suggest." Graham v.
Henderson, 89 F.3d 75, 79 (2d Cir. 1996). Furthermore, in this
situation, "the factual allegations raised in the [pro se]
plaintiffs Opposition to Defendant's Motion to Dismiss . . .
will be treated as part of [his] complaint." Tsai,
137 F. Supp.2d at 280 (citations omitted.)
Here, Preston's complaint references documents submitted at
the Hearing. In addition, Preston attached a copy of his
criminal history records, and annotated copies of the
Certificate and Dismissal Decision. The transcript of the
Hearing, also, is integral to the allegations of
Preston's complaint and was quoted by Preston in his opposition
briefs. In addition, the Court may take judicial notice of the
official records of that administrative proceeding. Accordingly,
the Court's consideration of the Dismissal Decision, the Parole
Decision, the Violation of Release Report, dated November 8,
1999 and the Transcript and the Parole Appeal Decision Notice,
dated July 7, 2000, which are attached as Exhibits A, D, E, F,
and G to the Nowve Affidavit, does not convert the motions to
dismiss into those for summary judgment.
3. 28 U.S.C. § 1915(e)(2) and 28 U.S.C. § 1915A
A district court must dismiss a complaint filed in forma
pauperis "at any time if the court determines that . . . (B)
the action or appeal (i) is frivolous or malicious; (ii) fails
to state a claim on which relief may be granted; or (iii) seeks
monetary relief against a defendant who is immune from such
relief." 28 U.S.C. § 1915(e)(2). Moreover, a district court is
to review, as soon as practicable, "a complaint in a civil
action in which a prisoner seeks redress from a governmental
entity or officer or employee of a governmental entity."
28 U.S.C. § 1915A(a). If that review reveals that the complaint is
"(1) frivolous, malicious or fails to state a claim upon which
relief may be granted; or (2) seeks monetary relief from a
defendant who is immune from such relief" it must dismiss the
complaint, or those portions of the complaint.
28 U.S.C. § 1915A(b). The Court's § 1915A review may be conducted sua
sponte without notice to the prisoner. See Neal v. Goord,
267 F.3d 116, 119 (2d Cir. 2001).
On August 17, 2000, Preston obtained leave to proceed in
forma pauperis. Accordingly, § 1915 applies to his case.
Furthermore, Preston is currently incarcerated at Wende
Correctional Facility, serving a sentence on an unrelated
charge. It is not clear on what conviction he is incarcerated.
Accordingly, § 1915A also applies. Thus, the Court now reviews
Preston's Complaint to determine whether the Court lacks subject
matter jurisdiction or whether the pleadings are frivolous,
malicious or fail to state a claim.
An action is frivolous "where it lacks an arguable basis
either in law or fact." Neitzke v. Williams, 490 U.S. 319,
325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989)*fn6; see also
Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d
Cir. 1998). A complaint may be dismissed as malicious where it
"was not to rectify any cognizable harm, but only to harass and
disparage" the defendant. Tapia-Ortiz v. Winter, 185 F.3d 8,
11 (2d Cir. 1999) (dismissing complaint against federal
prosecutor who obtained conviction against the plaintiff as
frivolous and malicious). And finally, a court evaluates whether
a complaint "fails to state a claim upon which relief may be
granted" under 28 U.S.C. § 1915A under the same standard as a
motion to dismiss brought under Rule 12(b)(6). See Duamutef v.
Morris, 956 F. Supp. 1112, 1115 (S.D.N.Y. 1997).
4. Leave to Amend
Typically, a dismissal pursuant to Rule 12 is made with leave
to replead the deficient complaint. See Fed.R.Civ.P. 15(a);
see also Ronzani v. Sanofi, S.A., 899 F.2d 195, 198 (2d Cir.
"where it appears that granting leave to amend is unlikely to be
productive, . . . it is not an abuse of discretion to deny leave
to amend." Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d
Cir. 1993). The Court, therefore, has discretion to deny Preston
leave to file a third amended pleading.
B. CLAIMS AGAINST BAILEY
Bailey argues that Preston's claims against her should be
dismissed at this stage pursuant to the doctrine of qualified
immunity.*fn7 Preston opposes Bailey's motion on the grounds
that her actions render her ineligible for immunity from suit
because of her "deliberate indifference".
Qualified immunity shields state officials from liability
under § 1983; however, because their immunity is only qualified,
their conduct is not always shielded. A factual inquiry may be
necessary to determine if immunity is available. See Harlow v.
Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396
(1982); Krause v. Bennett, 887 F.2d 362, 368 (2d Cir. 1989). A
court first asks, "[t]aken in the light most favorable to the
party asserting the injury, do the facts alleged show the
officer's conduct violated a constitutional right?" Saucier v.
Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272
(2001). If not, the inquiry is over and qualified immunity
applies. If so, a court must consider "whether the right was
clearly established," such that "it would be clear to a
reasonable officer that the conduct was unlawful in the
situation he confronted." Id. Thus, a defendant will have
established a right to qualified immunity by showing that:
it was not clear at the time of the official acts
that the interest asserted by the plaintiff was
protected by a federal statute or the Constitution;
[or that] it was not clear at the time of the acts at
issue that an exception did not permit those acts;
[or that] it was objectively reasonable for [the
defendant] to believe that his acts did not violate
Krause, 887 F.2d at 368. Qualified immunity bars suits filed
against government officials in both their individual and
official capacities. See Frank v. Relin, 1 F.3d 1317, 1327-28
(2d Cir. 1993).
Preston's claim against Bailey is that her action:
was the cause of him (the Plaintiff) not receiving a
fair and Constitutionally Guaranteed right to
confront Adverse witnesses, for the Certificate of
Disposition stated I was convicted of a Criminal
Offense (conviction), and a Criminal Conviction takes
away the right to confront the Parole officer and any
witnesses adverse or otherwise. . . . Bailey's action
caused the Plaintiff to be denied the Right to
procedural Due Process of Law at the Parole
Revocation Hearing. . . .
(Opposition Aff., at ¶¶ 11 — 13 (emphasis in original).) As such,
Preston fails to allege