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STUBBS v. SIMONE

May 9, 2005.

DONALD E. STUBBS, Plaintiff,
v.
RICHARD de SIMONE; ANDREW BILINSKI; WESTCHESTER COUNTY CLERK, each: individually and in official capacity. Defendants.



The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge

REPORT AND RECOMMENDATION

Donald Stubbs, who is currently incarcerated at Green Haven Correctional Facility, has brought this suit pro se under 42 U.S.C. § 1983 seeking injunctive and declaratory relief as well as monetary damages. He alleges that defendants Andrew Bilinski — a Law Secretary to Justice Joseph K. West of the New York State Supreme Court, Westchester County — and the Westchester County Clerk violated his constitutional rights by delaying the processing of his Article 78 petition and obstructing his right to appeal an order issued by Justice West on April 3, 2003 dismissing the petition. Stubbs also alleges that a third defendant, Richard de Simone — Associate Counsel to the New York State Department of Correctional Services ("DOCS") — violated his constitutional rights by failing to correctly calculate his sentence under the governing state penal law statutes.

By order dated July 23, 2004, Chief Judge Michael B. Mukasey dismissed Stubbs's complaint insofar as it alleged claims against Bilinski and the Westchester County Clerk on the ground that Stubbs's claims against these individuals were barred by the doctrine of absolute judicial immunity. See Order of Partial Dismissal, filed July 23, 2004 (Docket #3) ("July 23 Order"), at 2. Stubbs subsequently filed an amended complaint — again naming Bilinski, the Westchester County Clerk, and de Simone as defendants. See Amended Complaint, filed November 29, 2004 (Docket #15) ("Am. Compl."), at 1. De Simone has moved to dismiss Stubbs's amended complaint pursuant to Fed.R.Civ.P. 12(b)(1) and Fed.R. Civ. P. 12(b)(6). For the following reasons, the motion should be granted.*fn1

  I. BACKGROUND

  A. Prior Proceedings

  The facts relating to Stubbs's prior state court proceedings are drawn from court papers annexed to de Simone's submissions in support of the motion to dismiss.*fn2 The Court may consider these materials in deciding the instant motion to dismiss. See Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (in deciding a motion to dismiss courts may consider documents attached to the complaint or incorporated in it by reference, documents that the plaintiff relied on in bringing suit that are either in the plaintiff's possession or were known to the plaintiff at the time the suit was brought, or matters of which judicial notice may be taken); see also Faulkner v. Verizon Communications, Inc., 156 F. Supp. 2d 384, 391 (S.D.N.Y. 2001) (under Fed.R. Evid. 201(b) courts "may take judicial notice of pleadings in other lawsuits attached to the defendants' motion to dismiss . . . as a matter of public record") (citing cases).

  1. The Orange County Petition

  On or about January 4, 2001, Stubbs filed a writ of habeas corpus in New York State Supreme Court, Orange County, challenging, inter alia, the calculation of his sentence and conditional release date. See Petition for Writ of Habeas Corpus, dated January 4, 2001 (reproduced as Ex. B to Fleischmann Decl.) ("Orange County Petition"), at 3-7. In his petition, Stubbs named Frank Bigger, Sheriff of Orange County, and the Orange County Correctional Facility, as respondents. Id. at 2.

  The papers filed as part of the Orange County Petition and during the course of the instant action reflect that in May 1980, Stubbs violated the conditions of his parole, which had been imposed upon him as a result of a July 1978 conviction declaring him a youthful offender. See Letter from Richard de Simone to Jeane Strickland, Esq., dated April 18, 2001 (reproduced as Ex. C. to Fleischmann Decl.) ("de Simone Letter"), at 1. In February 1981, Stubbs was sentenced in Orange County to a prison term of 5 to 15 years after being convicted on a charge of second-degree robbery (the "February 1981 conviction"). See id. In November 1981, Stubbs was sentenced in Orange County to a prison term of 6 to 18 years after being convicted on a charge of first-degree sodomy (the "November 1981 conviction"). See id. at 2. This sentence was to run concurrently with the 5 to 15 year sentence imposed on Stubbs following his February 1981 conviction. Orange County Petition ¶ v.

  On November 18, 1986, Stubbs was sentenced in Clinton County to two 3 ½ to 7 year prison terms after being convicted on charges of criminal possession of a weapon in the third-degree and promoting prison contraband in the first-degree (the "November 1986 conviction"). See de Simone Letter at 2. That sentence was to run consecutively with the previously imposed sentences. See Orange County Petition ¶ vii. On October 12, 1990, Stubbs was sentenced in Washington County to two additional 3 ½ to 7 year prison terms after being convicted on charges of assault in the second-degree and promoting prison contraband in the first-degree (the "October 1990 conviction"). See de Simone Letter at 2. That sentence was also to run consecutively with the previously imposed sentences. Orange County Petition ¶ viii.

  Stubbs was paroled in April 1994 and he subsequently violated parole in July 1995. See de Simone Letter at 2. He was returned to DOCS custody in January 1996 as a parole violator and was paroled again in July 2000. See id. Stubbs was arrested for violating his parole in November 2000. See Orange County Petition at 2.

  In the Orange County petition, Stubbs alleged that, because his sentence of 6 to 18 years resulting from his November 1981 conviction had already commenced, sentencing him to consecutive terms of imprisonment following his November 1986 and October 1990 convictions violated N.Y. Criminal Procedure Law ("C.P.L.") § 430.10, which prohibits the change, suspension, or interruption of a sentence once the term or period of the sentence has commenced. See id. ¶¶ v, vii-viii. Stubbs also alleged that his right to due process had been violated as a result of respondents' "failure to afford him a due process hearing before either a parole board . . . or a time allowance committee . . . prior to commencing" his new sentences. Id. ¶ ix (emphasis in original). Stubbs contended that the imposition of the consecutive sentences unlawfully increased his original minimum sentence and delayed the date by which he could be considered for parole by the parole board. See id. ¶¶ vi-x. As a result, Stubbs claimed that his sentences had been improperly calculated and that he had already served more than the maximum term imposed by his sentence for the November 1981 conviction. See id. ¶ x. Stubbs, therefore, requested that his sentence be recalculated and that he be granted whatever time credits he was entitled to. See id. ¶ xi.

  In response to the petition, respondents submitted a letter from de Simone. See de Simone Letter. In the letter, de Simone rejected Stubbs's contention that his sentence should be reduced pursuant to C.P.L. § 430.10. See id. at 2. De Simone stated that New York Penal Law ("N.Y.P.L.") § 70.30(1)(e), which provides for a reduction in consecutive indeterminate terms of imprisonment under certain circumstances, did not entitle Stubbs to any reduction in his sentence. Id. De Simone also calculated Stubbs's sentence and conditional release date, taking into consideration any possible good time credit to be awarded to Stubbs after his return to DOCS custody following his parole violations. See id. at 3-4. Based upon his calculation, de Simone concluded that Stubbs's approximate conditional release date would be November 21, 2009, assuming that his September 2000 parole violation was sustained and that he was credited for the entire period between the lodging of the parole warrant and the resumption of his sentence. Id. at 4. The letter also concluded that the maximum term of Stubbs's sentence would expire on May 21, 2014. Id.

  By order dated July 5, 2001, Supreme Court Justice Elaine Slobod of the Orange County Supreme Court converted Stubbs's habeas corpus petition into an Article 78 petition and denied all of his claims for relief. See Short Form Order, dated July 5, 2001 (reproduced as Ex. D to Fleischmann Decl.) ("Slobod Decision"), at 2-3. The court held, inter alia, that Stubbs's sentence had been correctly calculated. See id. Specifically, the court concluded that Stubbs was "not entitled to [a] reduction of the aggregate of his various sentences" under N.Y.P.L. § 70.30(1)(e). Id. at 2. The court also rejected Stubbs's argument that one or more of the consecutive sentences imposed upon him following his November 1986 and October 1990 convictions violated C.P.L. § 430.10, as well as Stubbs's "grossly belated" claim that his appearance before the parole board had been unduly delayed. See id. at 3. Although the court acknowledged that Corrections Law § 803(5) permitted Stubbs "to receive a time allowance against the remaining portion of his aggregate maximum" sentence, the court found that Stubbs had "forfeited any allowances for good behavior granted prior to his release on parole." Id. at 2-3. The court concluded, therefore, that Stubbs's "maximum expiration date" had not been reached "under any scenario," but that he was free "to make an appropriate challenge to new calculations of [his maximum expiration] date and his conditional release date after appropriate credits have been applied." Id. at 3. There is no record of this decision being appealed to the Appellate Division, Second Department.

  2. The Westchester County Petition

  On or about January 29, 2002, Stubbs filed an Article 78 petition in Westchester County Supreme Court. See Petition, dated January 29, 2002 (reproduced as Ex. E to Fleischmann Decl.) ("Westchester County Petition"). The Westchester County Petition named as respondents the New York State Division of Parole ("DOP") and DOCS. Id. at 1. In this petition, Stubbs again alleged that sentencing him to consecutive terms of imprisonment following his November 1986 and October 1990 convictions unlawfully increased his original minimum sentence of 6 to 18 years resulting from his November 1981 conviction, delayed the time before he could be considered for parole, and violated his right to due process. See id. ¶¶ 5-17. Specifically, Stubbs contended that respondents had incorrectly calculated his sentence and conditional release date. See id. ¶¶ 15-16. Stubbs also alleged that, because respondents imposed consecutive sentences on him before his original minimum sentence had expired and delayed presenting him to the parole board, respondents violated both C.P.L. § 430.10 and his right to due process. See id. ¶¶ 5, 7-13, 15-16. In this petition, Stubbs requested, inter alia, that the court review respondents' "arbitrary action of illegally re-sentencing him without affording [him] due process," issue an order "directing the respondents to terminate the remainder of their illegally induced sentence," and issue an order directing "respondents to release [him] . . . from custody." Id. at 5-6. By order to show cause dated July 25, 2002, Stubbs moved the Westchester County Supreme Court, pursuant to Article 78, for an order setting forth the exact date when his sentences for the November 1986 and October 1990 convictions commenced because, according to Stubbs, these sentences "wrongfully" extended his original minimum sentence and unlawfully delayed his appearance before the parole board. See Order to Show Cause, dated July 25, 2002 (reproduced as Ex. E to Fleischmann Decl.), at 1-2.

  Respondents subsequently moved to dismiss Stubbs's Article 78 petition pursuant to N.Y.C.P.L.R. § 3211(a)(5) on the grounds of collateral estoppel and res judicata. See Notice of Motion, dated September 11, 2002 (reproduced as Ex. F to Fleischmann Decl.). Respondents argued that the claims raised in the Westchester County petition had already been raised or could have been raised by Stubbs in his prior petition filed in Orange County. Affirmation, undated (reproduced as Ex. F to Fleischmann Decl.), ¶ 5. In support of the motion to dismiss, respondents submitted a letter from de Simone. See Letter from Richard de Simone to Elyse Angelico, Esq., dated July 25, 2002 (reproduced as Ex. G to Fleischmann Decl.). In this letter, de Simone updated Stubbs's status within DOCS, stating that Stubbs had violated his parole in September 2000 and was returned to DOCS custody as a parole violator in June 2001. See id. at 1. In light of this fact, de Simone adjusted the dates in his April 18, 2001 letter by changing both the maximum expiration date and the earliest conditional release date by two days. See id.

  On April 3, 2003, Justice Joseph K. West of the Westchester County Supreme Court dismissed the Article 78 petition on the grounds of res judicata and collateral estoppel. See Decision and Order, dated April 3, 2003 (reproduced as Ex. H to Fleischmann Decl.) ("West Decision"), at 1. Specifically, Justice West stated that, after reviewing Justice Slobod's decision in the Orange County proceeding, as well as the claims set forth in the Westchester County petition, he found that the two actions did "indeed address the same claim." See id.

  B. The Allegations in the Complaint and Chief Judge Mukasey's Order

  On July 23, 2004, Stubbs filed the complaint in the instant action. See Compl. In his complaint, Stubbs named as defendants Bilinski, the Westchester County Clerk, and de Simone. Id. at 3. Stubbs alleged that Bilinski and the Westchester County Clerk delayed the processing of his Article 78 petition and obstructed his right to appeal Justice West's order dismissing the petition to the Appellate Division, Second Department. See id. at 5-10. The complaint also alleged that de Simone created "false time computation records" in calculating Stubbs's conditional release and maximum expiration dates, and that he conspired to "hide" errors committed by DOCS in calculating his sentence. Id. at 7, 10. ___ As noted, Chief Judge Mukasey subsequently dismissed the complaint insofar as it alleged claims against Bilinski and the Westchester County Clerk on the ground that the claims against these individuals were barred by the doctrine of absolute judicial immunity. July 23 Order at 2. Specifically, Chief Judge Mukasey stated that, because "the alleged wrongdoings of defendants Bilinski and the Westchester County Clerk were acts performed in their official capacities as employees of the Westchester County Court, ...


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