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United States District Court, E.D. New York

March 1, 2004.


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. Page 2


 A. Prior Cases

  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.

 B. The Instant Cases

  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 Page 3 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, Page 4 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.)


 A. Standard of Review

  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 Page 5 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 (2d Cir. 1994). If a liberal reading of the petition "gives any indication that a valid claim might be stated," I must grant leave to amend it. See Cuoco. v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999).

 B. Petition for a Writ of Mandamus

  Edwards is brought pursuant to 28 U.S.C. § 1361, which gives district courts jurisdiction over "any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." The granting of a writ of mandamus is an "extraordinary remedy" that "will issue only to compel the performance of a clear nondiscretionary duty." Pittston Coal Group v. Sebben, 488 U.S. 105, 121 (1988) (quotation marks omitted). Parks must meet three elements for a writ of mandamus to issue: "(1) a clear right . . . to the relief sought, (2) a plainly defined and peremptory duty on the defendant's part to do the act in question, and (3) lack of another available, adequate remedy." Billiteri v. United States Bd. of Parole, 541 F.2d 938, 946 (2d Cir. 1976): accord Anderson v. Bowen, 881 F.2d 1, 5 (2d Cir. 1989).

  In Edwards, Parks is seeking to compel action from state employees, not "an officer or employee of the United States or an agency thereof." 28 U.S.C. § 1361. Moreover, he is not seeking to compel the defendants to perform a nondiscretionary, ministerial act. Under New York law, "[p]arole decisions are discretionary and prisoners have no right to be released prior to the expiration of their sentences." People ex rel. Harris v. N.Y. State Div. of Parole, 761 N.Y.S, 2d 915, 915 (4th Dep't 2003) (quotation marks omitted); see also N.Y. Penal Law § 70.40(1). The relief Parks requests — whether it be construed as complete discharge or merely Page 6 release on parole — is therefore not available upon a writ of mandamus, but only through habeas corpus. See Billiteri, 541 F.2d at 947.*fn1

  To the extent that the complaint in Edwards also seeks an order directing the City of New York to settle with Parks in Parks v. New York City Police Department, No. 00 CV 2546, such relief is denied, as stated in my January 5, 2004 Order in that case.

 C. The Civil Rights Action

  Pataki, the second action at issue herein, is brought pursuant to 42 U.S.C. § 1983, 1985(3), and 1986. This action must be dismissed since Parks cannot state a claim under any of these sections.

  First, 42 U.S.C. § 1983 provides, in pertinent part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured. . . .
  "Section 1983 itself creates no substantive rights, [but] . . . only a procedure for redress for the deprivation of rights established elsewhere." Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993) (citing Oklahoma City v. Tuttle, 471 U.S. 808 (1985)). In order to maintain a § 1983 action, Parks must allege two essential elements. First, "the conduct complained of must have been committed by a person acting under color of state law." Pitchell v. Callan, 13 F.3d 545, 547 (2d Page 7 Cir. 1994) (citing Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on other grounds by Daniel v. Williams, 474 U.S. 327 (1986)). Second, "the conduct complained of must have deprived a person of rights, privileges or immunities secured by the Constitution or laws of the United States." Id.

  There is no federal constitutional or statutory right to parole. See Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979); Berard v. Vt. Parole Bd., 730 F.2d 71, 75 (2d Cir. 1984). Therefore, Parks alleges that defendants, all of whom are state actors, violated his rights under Article I, § 10 of the United States Constitution by making an "ex-post-facto decision." (Pataki Compl. at 4.) The Ex Post Facto Clause


applies only to legislative action that retroactively punishes as a crime an act previously committed, which was innocent when done, makes more burdensome the punishment for a crime, after its commission, or deprives one charged with crime of any defense available according to law at the time when the act was committed.
  Barna v. Travis, 239 F.3d 169, 171 (2d Cir. 2001) (quotation marks omitted). Alterations in state parole procedures, even if adverse to an inmate and adopted after the inmate's incarceration, cannot violate the Ex Post Facto Clause because such procedures are not "laws." Id. Although Parks apparently construes defendants' refusal to release him as making his punishment more burdensome, his continued incarceration is consistent with the sentence of fours years to life imposed pursuant to the statutes in effect at the time of the crime. Accordingly, defendants' actions did not violate the Ex Post Facto Clause. See id.

  Second, 42 U.S.C. § 1985(3) provides, in pertinent part:

  If two or more persons in any State or Territory conspire . . . for the purpose of depriving . . . any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the Page 8 laws . . . [and] do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation. . . .

  To state a cause of action under 42 U.S.C. § 1985, Parks must allege


(1) a conspiracy (2) for the purpose of depriving a person or class of persons of the equal protection of the laws, or the equal privileges and immunities under the laws; (3) an overt act in furtherance of the conspiracy; and (4) an injury to the plaintiff's person or property, or a deprivation of a right or privilege of a citizen of the United States.
  Thomas v. Roach, 165 F.3d 137, 146 (2d Cir. 1999). Parks must also show that the conspiracy was motivated by "some racial or perhaps otherwise class-based, invidious discriminatory animus." Id. (quoting Mian v. Donaldson, Lufkin & Jenrette Secs. Corp., 7 F.3d 1085, 1088 (2d Cir. 1993)).

  Parks has not stated a claim under § 1985(3). He does not allege a conspiracy, much less one to deprive him of equal protection of the laws. Moreover, he does not allege that the defendants' actions were motivated by "some racial or perhaps otherwise class-based, invidious discriminatory animus." Id. at 146. Indeed, the only equal protection argument even suggested by the Pataki complaint is that defendants treated violent offenders like Parks differently from nonviolent offenders, a discrimination that is entirely appropriate and not at all invidious. Accordingly, Parks does not state a claim under § 1985.

  Third, 42 U.S.C. § 1986 creates civil liability on the part of a person "who, having knowledge that any of the wrongs conspired to be done, and mentioned in section 1985 . . . are about to be committed, and having power to prevent or aid in preventing the commission of the same, neglects or refuses so to do. . . ." Since Parks fails to state a claim under § 1985, he Page 9 cannot state a claim under § 1986 either. Accordingly, Pataki is dismissed for failure to state a claim upon which relief may be granted.*fn2

  Since the two cases at bar have been consolidated, their dismissal will be construed as one dismissal for purposes of 28 U.S.C. § 1915(g), which provides that prisoners filing civil actions and seeking in forma pauperis status may be barred from filing further actions if three complaints have been dismissed as frivolous, malicious, or for failure to state a claim, unless the prisoner is under imminent danger of serious physical injury. See Welch v. Galie, 207 F.3d 130, 131-32 (2d Cir. 2000). Parks is alerted to the provisions of 28 U.S.C. § 1915(g) and is cautioned that if he files another action which is dismissed as frivolous or malicious or which fails to state a claim, this Court may elect to enter an order directing the Clerk of this Court not to accept any further in forma pauperis complaints from Parks unless his pleadings demonstrate that he is under imminent danger of physical injury. See Newman v. Holder, 101 F. Supp.2d 103, 107-08 (E.D.N.Y. 2000).


  For the reasons stated above, Parks's mandamus petition and complaint in the two above-captioned cases — Parks v. Edwards, No. 03 CV 5588, and Parks v. Pataki, No. 03 CV Page 10 6234 — are dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) and 1915A. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of any appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

  So Ordered

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