found guilty of a parole
violation and was sentenced to a period of incarceration for about
The Complaint consists of three claims. The first claim alleges a
violation of Section 1983 due to the plaintiff's removal from the HIIP in
November 1997 without proper due process. The second claim alleges a
violation of Section 1983 due to the plaintiff's removal from the HIIP in
March 2000 without proper due process. The third claim alleges a
violation of Section 1983, N.Y. Mental Hyg. § 22.03 and N.Y. Comp.
Codes R. & Regs. tit. 14, § 1020.9 in that the HIIP adopted and
maintained a policy of involuntarily removing participants from the
program without due process by relying on language inserted in its
application for entry and conditions of participation which purports to
either waive the right to due process or consent to arbitrary and
capricious removal from the program. The defendants move to dismiss the
Complaint pursuant to Rule 12(c) on two grounds: (1) the plaintiff had no
protected due process right to remain in the HIIP; and (2) Section 1983
cannot be based upon the alleged violation of a state law or regulation.
A. The Standard
The standard for a motion to dismiss under Rule 12(c) is the same as a
motion under Rule 12(b)(6). Irish Lesbian and Gay Org. v. Giuliani,
143 F.3d 638, 644 (2d Cir. 1998). The dismissal of a complaint for
failure to state a claim pursuant to Rule 12(b)(6) is proper only where
"`it appears beyond doubt that the plaintiff can prove no set of facts in
support of his claim that would entitle him to relief.'" ICOM Holding,
Inc. v. MCI Worldcom, Inc., 238 F.3d 219, 221 (2d Cir. 2001) (quoting
Harris v. City of New York, 186 F.3d 243, 247 (2d Cir. 1999)). "At the
Rule 12(b)(6) stage, `[t]he issue is not whether a plaintiff is likely to
prevail ultimately, but whether the claimant is entitled to offer evidence
to support the claims. Indeed it may appear on the face of the pleading
that a recovery is very remote and unlikely but that is not the test.'"
Sims v. Artuz, 230 F.3d 14, 20 (2d Cir. 2000) (quoting Chance v.
Armstrong, 143 F.3d 698, 701 (2d Cir. 1998)). In a Rule 12(b)(6) motion,
a court's role is "`merely to assess the legal feasibility of the
complaint, not to assay the weight of the evidence which might be offered
in support thereof.'" Sims, 230 F.3d at 20 (quoting Ryder Energy
Distribution Corp. v. Merrill Lynch Commodities Inc., 748 F.2d 774, 779
(2d Cir. 1984) (internal quotation marks omitted)).
In deciding a 12(b)(6) motion, a court must accept as true all material
facts alleged in the complaint and draw all reasonable inferences in the
nonmoving party's favor. ICOM Holding, 238 F.3d at 221. "To survive a
motion to dismiss, [the plaintiff's] claims must be `supported by
specific and detailed factual allegations,' not stated `in wholly
conclusory terms.'" Friedl v. City of New York, 210 F.3d 79, 85-86 (2d
Cir. 2000) (quoting Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir.
1983)). Thus, "[d]ismissal is `appropriate only if it appears beyond
doubt that the plaintiff can prove no set of facts in support of his
claim which would entitle him to relief.'" Friedl, 210 F.3d at 83
(quoting Harris, 186 F.3d at 250). "`This rule applies with particular
force where the plaintiff alleges civil rights violations . . . .'" Cruz
v. Gomez, 202 F.3d 593, 597 (2d Cir. 2000) (quoting Chance, 143 F.3d at
In a motion to dismiss under Rule 12(b)(6), a court must confine its
consideration "to facts stated on the face of the complaint, in documents
appended to the complaint or incorporated in the complaint by reference,
and to matters of which
judicial notice may be taken." Leonard F. v.
Israel Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999). The Court
decides the Rule 12(b)(6) motion based upon the Complaint, the documents
appended and incorporated by reference and the matters of which judicial
notice may be taken.
B. Section 1983
To establish a claim 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) (internal quotation marks and citations omitted). "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) (citations omitted).
In a Section 1983 claim, a court's first step is to identify the
federal right allegedly infringed. Albright v. Oliver, 510 U.S. 266,
271, 114 S.Ct. 807, 811 (1994). Here, the plaintiff claims that the
defendants deprived him of his right to procedural due process under the
Fourteenth Amendment when they removed him from the HIIP twice without
providing him the reasons for his removal and without notifying him of the
available review process.
The Fourteenth Amendment provides in pertinent part that no State shall
"deprive any person of life, liberty, or property, without due process of
law. . . ." U.S. Const. amend. XIV, § 1. That clause "protects the
individual against arbitrary action of government." Kentucky Dep't of
Corrs. v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 1908 (1989)
(internal quotation marks and citations omitted). In a claim for denial
of procedural due process, an inmate must allege that she had a protected
liberty interest and that the state did not afford her the required
process before taking away that interest. See Bedoya v. Coughlin,
91 F.3d 349, 351-352 (2d Cir. 1996).
A liberty interest under the Fourteenth Amendment arises either
directly from the Due Process Clause itself or from a state's laws. Klos
v. Haskell, 48 F.3d 81, 86 (2d Cir. 1995) (citing Kentucky Dep't of
Corrs., 490 U.S. at 460, 109 S.Ct. at 1908 and Hewitt, 459 U.S. at 466,
103 S.Ct. at 868). However, courts have restricted an inmate's liberty
interests. Id. (illustrating that an inmate has no liberty interest in
the commutation of her sentence, in staying in one correctional facility
instead of another or in securing good-time credit for behavior in
prison) (citations omitted).
The plaintiff sets forth three grounds to show a liberty interest under
the Fourteenth Amendment: (1) New York gave him a liberty interest
through its statutes and regulations that govern the HIIP; (2) the HIIP
contract created anticipatory "good time"; and (3) the HIIP contract
created an entitlement to substance abuse therapy coupled with a liberty
interest in the form of the cancellation of his delinquency of the parole
violation upon the successful completion of the program.
1. The State Conferred Liberty Interest
"For a liberty interest to be conferred by the state, two requirements
must be met: (1) the state must have articulated specified substantive
predicates which limit the discretion of state officials; and (2) it must
have employed explicitly mandatory language, requiring state officials to
follow those substantive predicates." Klos,
48 F.3d at 87 (internal quotation marks and citations omitted).
New York has not enacted specific legislation or regulations to govern
the HIIP. Cf. Klos, 48 F.3d at 83-84 (enacting specific statutory and
regulatory rules to govern the administration of the New York State Shock
Incarceration Program). Nevertheless, the Complaint alleges that the New
York State Mental Hygiene Law and its regulations govern the HIIP because
it is a substance abuse program.
Under the Mental Hygiene Law, a substance abuse program is defined as
[A]ny public or private person, corporation,
partnership, agency, either profit or non-profit, or
state or municipal government which provides substance
abuse services, in either a residential or ambulatory
setting, to persons who are substance abusers,
substance dependent, in need of services to avoid
becoming substance abusers, substance dependent or to
significant others. Any person or entity providing
such services as a minor part of a general health or
counseling unit subject to regulations promulgated by
the commissioner and other appropriate agencies shall
not be considered a substance abuse program.
N.Y. Mental Hyg. Law § 1.03(42) (McKinney 1997 & 2002). The
plaintiff argues that the HIIP is a substance abuse program because it
involves sixty days of intensive, in-custody substance abuse therapy and
a six month aftercare phase which is monitored by the Treatment
Alternatives to Street Crime Program ("TASC") on behalf of the Suffolk
County Department of Health Services. Also, the plaintiff argues that the
only function of the HIIP is to provide substance abuse treatment
services. Although the defendants do not directly respond to this
argument, they concede that the HIIP assists individuals with substance
Accepting as true all material facts alleged in the Complaint and
drawing all reasonable inferences in favor of the plaintiff — as
the Court must — the plaintiff makes a sufficient showing that the
HIIP is a substance abuse program governed by the Mental Hygiene Law.
First, the plaintiff's February 2000 application states that the HIIP "is
a 60 day highly structured program with a significant substance abuse
treatment component." Application ¶ 3. The Court notes that the
defendants make no argument or showing that this description of the HIIP
Next, the Court looks to the Mental Hygiene Law and its regulations to
determine whether New York has created specific "substantive predicates"
that limit state officials' discretion when removing a participant from a
substance abuse program. Turning initially to the Mental Hygiene Law
itself, the statute does not appear to provide specific procedural rules
that a director must follow before she removes a participant from a
substance abuse program. See N.Y. Mental Hyg. Law Art. 1-91 (McKinney
However, a review of the regulations promulgated pursuant to the Mental
Hygiene Law shows that they limit officials' discretion to remove a
participant involuntarily from a substance abuse program. See N.Y. Comp.
Codes R. & Regs. tit. 14, § 1020.9(f) (2002). For example, the
director must consult with the medical, counseling and administrative
staff before she removes a participant from a substance abuse program.
See id. § 1020(f)(1). Also, the director must provide a participant
(i) a written statement setting forth the reason(s)
for discharge; and (ii) written notice of his/her
right to request review of the decision by the program
director of his/her designee. This notice shall
also contain a statement that the client may seek advise
from outside resources in preparing for the program
director/designee review of the discharge decision.
See id. § 1020.9(f)(3)(i)-(ii).