The opinion of the court was delivered by: JOHN GLEESON, District Judge
These are the two most recent cases brought pro se by
petitioner/plaintiff Carlos A. Bailey Parks, a state prisoner at Mohawk
Correctional Facility. Since both of these actions relate to the same
facts and contain many of the same allegations, they are consolidated for
purposes of this Order. For the reasons set forth below, Parks's requests
to proceed in forma pauperis are granted pursuant to 28 U.S.C. § 1915,
but these actions are dismissed.
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Sometime in 2000, Parks was convicted in New York State Supreme Court
of attempted criminal possession of a weapon in the third degree (a class
E violent felony), and was sentenced to a term of imprisonment of four
years to life. During that term of incarceration, Parks filed at least
eleven actions, including the two at issue herein. Several of these cases
have been consolidated with others, and two of these actions have been
dismissed. See Parks v. United States Probation Dept. No. 03 CV 2193, and
Parks v. Hollins, No. 00 CV 4587. There is no need to discuss all of the
ongoing actions, because only two are relevant to the instant cases: (1)
Parks v. New York City Police Department, No. 00 CV 2564, a civil action
pursuant to 42 U.S.C. § 1983 against the New York City Police Department
and several of its officers, and (2) Parks v. Perlman, No. 03 CV 805, a
petition for a writ of habeas corpus.
In Parks v. New York City Police Department Parks claims that
defendants' counsel, assistant corporation counsel Paul M. Villanueva,
has offered to settle the action. Indeed, Parks moved for a writ of
mandamus directing the defendants to settle the case and an order
directing that Villanueva be charged with mail fraud for not settling.
Those motions were denied. Parks v. N.Y. City Police Dept., No. 00 CV
2564, slip op. (E.D.N.Y. Jan. 5, 2004). In Parks v. Permian, Parks seeks
a writ of habeas corpus, principally alleging that settlement of the
aforementioned civil action would somehow impact his criminal
conviction. The Court is currently awaiting the government's response to
that petition.
In October 2003, Parks filed Parks v. Edwards, No. 03 CV 5588, the
first of the two cases at issue herein, seeking immediate release from
incarceration. Anticipating that
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defendant Division of Parole ("Parole") and its employees would "bow to
the public[] policy preferences of Governor George E. Pataki's
administration . . . [which] opposes parole for people convicted of
violent crimes" (Edwards Compl. ¶ 3), Parks petitions this Court for a
writ of mandamus directing Parole and its employees, defendants Lester
G. Edwards and A. Butler, to release him. Although Parole had not yet
decided whether to release Parks, he alleges that defendants would
"ignore [their] duties under Executive Law § 259-1 and Penal Law §
70.40," and "fail to properly consider [Parks's] exemplary institutional
record and enormous efforts to educate [himself]." (Id. ¶ 2.) Parks
reasons that since he had already served four years and since the City of
New York had expressed a "willingness to settle" in Parks v. New York
City Police Department, it would "not be fair" for Parole to deny him
release. (Id. ¶ 6.) He demands that I order his immediate release and
direct the City of New York to "settle the [civil] suit." (Id. ¶¶ 5, 7.)
On November 12, 2003, Parole sent Parks a Release Decision Notice,
denying him "discretionary release." (Parks v. Pataki, No. 03 CV 6234,
Compl. Ex. A.) Parole noted that Parks had refused to appear before
them, had had disciplinary reports filed against him in prison, and had
an "involved and serious" criminal history, culminating in the illegal
weapon possession offense for which he was incarcerated. (Id.) Although
Parole stated that Parks's "institutional programming show[ed] some
progress," it concluded that there was "a reasonable probability that [he]
would not live and remain at liberty without violating the law," and that
"[d]iscretionary release [was] not in the community interest." (Id.)
Following his receipt of this decision, Parks filed the complaint in
Parks v. Pataki, No. 03 CV 6234, the second lawsuit at issue herein.
Pataki is an action pursuant to 42 U.S.C. § 1983,
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alleging many of the same facts and naming the same defendants as the
mandamus petition. In the Pataki complaint, Parks again refers to his
ongoing civil action against the City of New York, alleging that the case
was in the process of being "settled for $5 million by . . . the
Corporation Counsel of the City of New York . . . and his assistant Mr.
Paul M. Villanueva." (Pataki Compl. at 4.) He claims that settlement of
this civil action would somehow deprive Parole of jurisdiction, stating
that his "case is presently before the Parole Division only because of
Mr. Villanueva's [reluctance] to close out the suit settlement." (Id.)
Parks again alleges that Parole violated "Executive Law § 259-1 and Penal
Law § 70.40," stating that they "failed to properly consider the facts
[of] the arrest and settlement," and implying that it failed to consider
his "steady employment" prior to his arrest and his "legendary" work
ethic. (Id.) Parks claims that Parole made "an ex-post-facto decision" in
violation of Article I, § 10, of the United States Constitution, based
solely on his "frivolous" conviction and past criminal history. (Id. at
4-5.)
Under 28 U.S.C. § 1915A, I must review the complaint in a civil action
in which a prisoner seeks redress from officers or employees of a
governmental agency and "identify cognizable claims or dismiss the
complaint, or any portion of the complaint, if the complaint . . . is
frivolous, malicious, fails to state a claim upon which relief may be
granted or seeks monetary relief from a defendant who is immune from such
relief." 28 U.S.C. § 1915A(b); see also Carr v. Dvorin, 171 F.3d 115, 116
(2d Cir. 1999) (per curiam). An action is frivolous as a matter of law
when, inter alia, it is based on an "indisputably meritless legal theory"
that is, when it "lacks an arguable basis in law . . . or [when] a
dispositive defense clearly exists on the face of the complaint."
Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998).
Because
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Parks is proceeding pro se, I must read his petition and complaint
liberally and interpret them as raising the strongest arguments they
suggest. Burgos v. Hopkins, 14 F.3d 787, 790 ...