The opinion of the court was delivered by: William M. Skretny United States District Judge
On January 5, 2005, Petitioner/Plaintiff Daniel Jones, proceeding pro se, filed a Petition for Habeas Corpus relief, pursuant to 28 U.S.C. § 2241, challenging a denial of parole based presumably on a denial of "good time" credits for his failure to participate in a certain sex offender program. (05-CV-0008S, Docket No. 1). The Court, upon notice to Jones and an opportunity to be heard, ordered that the Petition be recharacterized as one brought pursuant to 28 U.S.C. § 2254,*fn1 and directed Respondent to file an answer and memorandum of law in response to the Petition. (05-CV-0008S, Docket Nos. 3 and 4). Respondent has previously been granted extensions of time to respond to the Petition, and a third extension request is now pending. (05-CV-0008S, Docket No. 10).
On March 18, 2005, Jones filed a Complaint, pursuant to 42 U.S.C. § 1983 (05-CV-0183S, Docket No. 1), challenging the denial of his "good time" allowance or credit based on his failure to participate in a sex offender program that he claimed would have required him to acknowledge guilt for a crime he was seeking to have overturned.*fn2 The Court found that the relief sought in the Complaint could be sought only in a § 2254 petition for habeas corpus relief because it raised the question of the duration of Jones' confinement. See Preiser v. Rodriguez, 411 U.S. 475, 489, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). Consequently, the Court ordered that the Complaint be construed as a Motion to Amend the Petition for Habeas Corpus filed in 05-CV-0008S, see Grullon v. Ashcroft, 374 F.3d 137, 138, 140 (2d Cir. 2004)(citing Ching v. United States, 298 F.3d 174, 177-78 (2d Cir. 2002),*fn3 and provided Jones the opportunity to address the Court's intention to treat the Complaint (and Motion to Amend or Supplement the Complaint (05-CV-0183S, Docket No. 7)) as a Motion to Amend the Habeas Corpus Petition filed in 05-CV-0008S or to file an Amended Petition. (05-CV-0183S; Docket No. 8, Order; 05-CV-0008S, Docket No. 8, Order). The Clerk was therefore directed to docket the Complaint in 05-CV-0183S as a Motion to Amend in 05-CV-0008S, close 05-CV-0183S and docket the Order in both 05-CV-0183S and 05-CV-0008S. Judgment was entered in 05-CV-0183S per the Court's Order (05-CV-0183S, Docket No. 9), and 05-CV-0183S was closed.
On August 25, 2005, Jones filed both a Motion for Reconsideration of the Court's Order treating the Complaint in 05-CV-0183S as a Motion to Amend the Habeas Corpus Petition in 05-CV-0008S (05-CV-0183S, Docket No. 10; 05-CV-0008S, Docket No. 14), and an Amended Complaint.*fn4 Respondent in 05-CV-0008S, as later directed, filed a Memorandum of Law in Opposition to Jones' Motion for Reconsideration (05-CV- 0183S, Docket No. 15; 05-CV-0008S, Docket No. 15), and Jones filed a Reply Memorandum of Law in Support of his Motion for Reconsideration. (05-CV-0183S, Docket No. 16; 05-CV-0008S, Docket No. 16).
On October 14, 2005, Respondent's counsel in 05-CV-0008S, filed a Motion for an Order: (1) striking the Amended Complaint filed in 05-CV-0183S, (2) denying the Motion to Amend the Petition in 05-CV-0008S (the Complaint in 05-CV-0183S), and (3) enlarging the time to respond to the Petition. (05-CV-0008S, Docket No. 10). Jones filed an Affidavit in Opposition to Respondent's Motion. (05-CV-0008S, Docket No. 12).
A. Jones' Motion for Reconsideration
Jones seeks reconsideration of this Court's Order in 05-CV-0183S, which deemed his Complaint under 42 U.S.C. § 1983 a Motion to Amend the Habeas Corpus Petition filed in 05-CV-0008S, on the ground that his Complaint and Amended Complaint (05-CV-0183S, Docket Nos. 1 and 12) do not challenge the length or duration of his confinement but rather challenge "the procedures and polices of the Department of Correctional Services ["DOCS"]," specifically the requirement that an inmate disclose his history of sexual misconduct in order to participate in a sex offender program. (05-CV-0183S, Docket No. 11, Affirmation, ¶ 7). Jones claims that these required disclosures are a violation of his Fifth Amendment right against self-incrimination and are a "de facto" requirement for the awarding of good time.*fn5 (Id.)
In New York "good time" is defined or allowed as follows: Every person confined in an institution of the department or a facility in the department of mental hygiene serving an indeterminate or determinate sentence of imprisonment, except a person serving a sentence with a maximum term of life imprisonment, may receive time allowance against the term or maximum term of his sentence imposed by the court. Such allowances may be granted for good behavior and efficient and willing performance of duties assigned or progress and achievement in an assigned treatment program, and may be withheld, forfeited or canceled in whole or in part for bad behavior, violation of institutional rules or failure to perform properly in the duties or program assigned.
N.Y. Corr.L., § 803(a)(1). If an inmate receives credit for all of the good time allowance he is allowed, he has a conditional release date (a form of "automatic parole"), which would mark two-thirds of the expiration of his maximum sentence. N.Y. Penal Law, § 70.40, McKinney's Practice Commentary, Conditional release; indeterminate or determinate sentence,Domino, W. (McKinney's 2004).*fn6 Four months prior to an inmate's conditional release date a Time Allowance Committee ("TAC") reviews the inmate's file to determine how much good time to grant to the inmate. 7 NYCRR § 261.3(a). "In evaluating the amount of allowance to be granted, the statutory criteria (i.e., good behavior, efficient and willing performance of duties assigned, progress and achievement in an assigned treatment program) shall be viewed in light of the following factors: 1) the attitude of the inmate; 2) the capacity of the inmate; and 3) the efforts made by the inmate within the limits of his capacity." Id.; § 260.3(b). Prior to the Court's Order determining that the Complaint in 05-CV-0183S was cognizable only in a habeas corpus proceeding, Jones had sought a temporary restraining order seeking to enjoin his TAC hearing because he believed he would not be provided due process and would thus not be awarded good time. The request was denied. (05-CV-0183S, Docket No. 5).
It is the denial of good time that Jones is claiming was unconstitutionally denied him because of his refusal to participate in a sex offender program, which he claims he was entitled to do because when he entered DOCS' custody there was an agreement that he did not need to participate in the program because he was still, at the time, challenging his conviction on appeal. Jones relies on the recent United States Supreme Court case of Wilkinson v. Dotson, in support of his claim that a challenge to the procedures utilized by DOCS would not necessarily lead to his immediate or accelerated release from incarceration and, therefore, the Complaint and Amended Complaint filed in 05-CV-0183S were properly brought as a civil action under 42 U.S.C. § 1983. 544 U.S. 74, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005). He argues that even if the procedures for participation in the sex offender program were rendered unconstitutional he would at most be entitled to another review by the TAC, and that TAC may again decline to award him earned good time allowances.*fn7 (05-CV-0183S, Docket No. 11, Affirmation, ¶ ¶ 12-13). Jones claims that he was denied good time allowances, and thus an earlier release, because he had not enrolled in a recommended sex offender program; a program which he claims his counsel and the DOCS agreed he would not have to enroll in as long as he had a verifiable appeal pending in state court. (05-CV-0183S, Docket 12, Amended Complaint).
Respondent asserts that because the gravaman of the Amended Complaint in 05-CV-0183S is that Jones was denied good time because he refused to participate in a sex offender program that required him, in violation of his Fifth Amendment right against self-incrimination, to admit to the crime that underlies his conviction and his current imprisonment, his claim if successful could only result in the awarding of good time and is therefore cognizable only under 28 U.S.C. § 2254. Respondent also asserts that there may arguably be other procedural issues raised in the Amended Complaint that are cognizable in a civil action under § 1983 but that they fail to state a claim upon which relief may be granted and should be dismissed regardless of whether construed under § 1983 or § 2254. (05-CV-0183S, Docket No. 15, Respondent's Memorandum of Law in Opposition to Petitioner's Motion for Reconsideration, pp. 3-4).
The issues presented by the Motion for Reconsideration, as they were when the Complaint in 05-CV-0183 was initially filed, are whether the Complaint and Amended Complaint raise grounds for challenging the actions of DOCS that affect the fact of or duration of Jones's imprisonment, as the Habeas Corpus Petition in 05-CV-0008S clearly does, and, if so, whether 05-CV-0183 should be maintained separately as a civil action under 42 U.S.C. § 1983. The Court finds again, as it did previously, that no matter how Jones attempts to plead his claims, his primary claim is that he was improperly denied good time because he refused to participate in a sex offender program and that this led to his continued incarceration. As such, the crux of Jones' claim is that he was unconstitutionally denied good time credit. If successful on that claim, it would result in the awarding of good time.*fn8 See Gastelu v. Breslin, No. 03 CV 1339 JG, 2005 WL 2271933, n. 2 (E.D.N.Y Sept. 12, 2005) ("To the extent ...