The opinion of the court was delivered by: Gary L. Sharpe, United States Magistrate Judge
REPORT-RECOMMENDATION AND ORDER
This matter has been referred to the undersigned for a Report-Recommendation by the Honorable Lawrence E. Kahn, United States District Judge, pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.3(c). On June 7, 2002, the answering defendants filed a Fed.R.Civ.P. 12(b)(6) motion to dismiss (Dkt. No. 47), and a motion for a protective order seeking to stay discovery pending decision on the motion (Dkt. No. 53). On September 11 and October 4, 2002, pro se plaintiff, Kenneth Gilmore, Jr., responded to the motions (Dkt. Nos. 58, 60). After reviewing Gilmore's claims and for the reasons set forth below, the motion to dismiss should be granted and the motion for a protective order is denied as moot.
Gilmore brings this 42 U.S.C. § 1983 action claiming that the defendants violated his civil rights under the Fourteenth*fn1 Amendment. In eight causes of action, he generally alleges that the defendants have repeatedly denied him parole and retaliated against him. He seeks injunctive relief, and compensatory, punitive and nominal damages. Because Gilmore's complaint names twenty-one (21) defendants in eight (8) causes, the court begins with clarification of the complaint. First of all, nine (9) of the defendants have never been served; namely, McSherry, Umina, Gonzalez, Eichelberger, Molik, Treen, Thomas, Mills and Jones. The remaining defendants are named in one or more of the eight causes. Causes 1, 2, 6, 7 and 8 all relate to Gilmore's assertion that he was unconstitutionally denied parole. In those causes, the following answering defendants have been named in one or more of the claims: Smith (1, 2, 6), Graber (1, 2, 6), McQuinn (6), Travis (7), Vizzie (8), Tappen (8) and Gailor (8). Cause 3 is a related pendant State claim, names the answering defendant, Scott, and asserts that the denial of parole violated New York law. Cause 4 is an "Eighth and Fourteenth Amendment" claim of medical malpractice and names the answering defendants Barten, Clair, Sikora and Stone. Cause 5 is a retaliation claim and names the answering defendant Sikora.
The answering defendants move to dismiss, contending that: (1) Gilmore has no constitutional right to parole; (2) violations of prison regulations and/or state law are not actionable under 42 U.S.C. § 1983; (3) the Ex Post Facto Clause is not implicated by these facts; (4) medical malpractice is not actionable under § 1983; and, (5) they are entitled to qualified immunity. The court raises, sua sponte, the failure to join the unserved defendants, and addresses each of the other issues seriatim.
On March 28, 1988, Gilmore was sentenced to a prison term of eighteen years to life on a murder conviction, to run concurrently with a term of seven and one half to fifteen years on an assault conviction. In November of 1991, he had his initial appearance before the Parole Board, and parole was denied. He was again denied parole in 1993, 1995, and 1998. On January 8, 1998, Commissioner McQuinn mailed Gilmore a "parole contract" which listed specific conditions that he was required to meet if he wished to receive "favorable consideration" at his next board appearance (Second Am. Compl. ¶ 68). In November of 1999, Gilmore appeared before Commissioners Scott and Gonzalez. However, the hearing was postponed in order to conduct a mental health evaluation. Subsequently, Gilmore's evaluation was conducted, but defendants Barten, Clair, Sikora and Stone failed to provide the Board with the evaluation in a timely fashion. In December of 1999, Gilmore was again denied parole by Commissioners Smith and Graber.
Federal Rules of Civil Procedure 12(b)(6) provides that a cause of action shall be dismissed if a complaint fails "to state a claim upon which relief can be granted." In other words, the court should dismiss the complaint pursuant to Rule 12(b)(6), if "it appears beyond doubt that the plaintiff can prove no set of facts in support of the complaint which would entitle him to relief." Phelps v. Kapnolas, 308 F.3d 180,184 (2d Cir. 2002) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Harris v. City of New York, 186 F.3d 243, 247 (2d Cir. 1999). "The task of the court in ruling on a Rule 12(b)(6) motion `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.'" Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir. 1998) (quoting Ryder Energy Distribution Corp. v. Merrill Lynch Commodities Inc., 748 F.2d 774, 779 (2d Cir. 1984)). Therefore, in reviewing a motion to dismiss, a "court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor." Phelps, 308 F.3d at 184 (quoting Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994)).
The 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) (citation omitted); Hayden v. County of Nassau, 180 F.3d 42, 54 (2d Cir. 1999) (citation omitted). "Moreover, `when a plaintiff chooses not to attach to the complaint or incorporate by reference a [document] upon which it solely relies and which is integral to the complaint,' the court may nevertheless take the document into consideration in deciding the defendant's motion to dismiss, without converting the proceeding to one for summary judgment." Int'l Audiotext Network, Inc. v. American Tel. and Tel. Co., 62 F.3d 69, 72 (1995) (alteration in original) (citation omitted). With this standard in mind, the court turns to the sufficiency of Gilmore's claims.
B. The Unserved Defendants
Service must be made upon a defendant within 120 days of filing the complaint or any claims against that defendant will be dismissed. Fed.R.Civ.P. 4(m). In this case, defendants McSherry, Umina, Gonzalez, Eichelberger, Molik, Treen, Thomas, Mills, and Jones have never been served. Gilmore's original complaint was filed on June 1, 2001, and almost two years have elapsed without ...