The opinion of the court was delivered by: Scullin, Senior Judge
MEMORANDUM-DECISION AND ORDER
On July 2, 2003, Plaintiff filed his complaint against Defendants in both their official and individual capacities and sought monetary damages as well as either release from prison or a new parole hearing. See Complaint at 1. Plaintiff asserts that Congress enacted the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. §§ 13701 et seq. ("the Act"), to create a financial incentive for New York State to deny parole to inmates classified as violent felony offenders. Plaintiff further alleges that this federal statute, which includes sections providing for "Truth-in-Sentencing Incentive Grants," increases the time that violent offenders like him will spend serving their sentences in jail. Plaintiff also claims that Defendants improperly denied him parole because they did so in reliance on the Act, which is unconstitutional because it treats violent felony offenders, such as him, differently than it treats non-violent felony offenders.
Defendants filed a motion to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim. Plaintiff opposed the motion. On June 11, 2004, Magistrate Judge DiBianco issued a Report-Recommendation in which he recommended that the Court dismiss the action based upon Heck v. Humphrey, 512 U.S. 477 (1994). See Dkt. No. 16. Plaintiff objected to that recommendation; and, in an Order dated March 21, 2005, this Court rejected the Report-Recommendation, denied Defendants' motion to dismiss without prejudice to renew, and instructed Defendants to notify Magistrate Judge DiBianco and Plaintiff whether they intended to renew their motion in light of Wilkinson v. Dotson, 544 U.S. 74 (2005). See Dkt. No. 19.
On March 30, 2005, Defendants notified the Court and Plaintiff that they were renewing their original motion to dismiss, but on different grounds. See Dkt. No. 20. Defendants argued that Plaintiff's complaint was without merit because inmates do not have a constitutional right to parole. Additionally, Defendants contended that Plaintiff could not hold Defendant Goord, as Commissioner of the Department of Correctional Services ("DOCS"), liable for damages because he was not involved in any inmate's parole determination.
On May 24, 2006, Magistrate Judge DiBianco issued a Report-Recommendation in which he recommended that the Court grant Defendants' renewed motion to dismiss Plaintiff's complaint in its entirety. Specifically, Magistrate Judge DiBianco found that, although the Supreme Court's decision in Heck barred Plaintiff's "immediate release on parole" claim, the Court should consider the merits of Plaintiff's request for a new parole hearing in light of the Supreme Court's decision in Wilkinson. Additionally, Magistrate Judge DiBianco concluded that Plaintiff could not seek damages against state officers in their official capacities and recommended that the Court dismiss the claims against Defendant Goord because he does not have the authority to implement policies regarding the release of inmates.
In considering the merits of Plaintiff's claim, Magistrate Judge DiBianco concluded that Plaintiff had no due process claim based upon Defendants' implementation of a federal statute that provides incentives to deny parole because an inmate does not possess a liberty interest under the New York statutory scheme in parole decisions. See Report-Recommendation at 6-7. Moreover, Magistrate Judge DiBianco concluded that discrimination against violent felony offenders in terms of parole release does not violate the Equal Protection Clause because violent offenders are not members of a protected class. See id. at 7. Furthermore, Magistrate Judge DiBianco concluded that Defendants' actions did not violate the Ex Post Facto Clause of the Constitution because an alteration of state law, even if it adversely affects an inmate and is adopted after that inmate's incarceration, is not a "law." See id. at 8. Specifically, he explained that, although denial of parole may appear to make an inmate's time of incarceration longer, the inmate is still serving the sentence imposed upon him due to his conviction, consistent with the statutes in effect at the time of the crime. See id. at 8. Finally, Magistrate Judge DiBianco found that Plaintiff's complaint did not state an Eighth Amendment claim because he had no constitutional right to parole release. Accordingly, Magistrate Judge DiBianco recommended that this Court grant Defendants' motion to dismiss for failure to state a claim. Currently before the Court are Plaintiff's objections to that recommendation.
1. Review of Magistrate Judge's Report-Recommendation
A district court judge must review the findings and recommendations in a magistrate judge's report-recommendation to which a party has filed timely objections de novo or for clear error those findings and recommendations to which the parties do not object. See Gill v. Smith, 283 F. Supp. 2d 763, 766 (N.D.N.Y. 2003) (citing Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir. 1990)) (other citations omitted).
2. Standard of Review for a Motion to Dismiss
"When ruling on a motion pursuant to Rule 12(b)(6) to dismiss for failure to state a claim upon which relief may be granted, the court must accept the material facts alleged in the complaint as true." Cohen v. Koenig, 25 F.3d 1168, 1171-72 (2d Cir. 1994) (citation omitted). Moreover, the court "must not dismiss the action 'unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Id. at 1172 (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed. 2d 80 (1957)) (other citation omitted). In addition, because "[p]ro se plaintiffs are often unfamiliar with the formalities of pleading requirements . . . the Supreme Court has instructed the district courts to construe pro se complaints liberally and to apply a more flexible standard in determining the sufficiency of a pro se complaint than they would in reviewing a pleading submitted by counsel." Platsky v. C.I.A., 953 F.2d 26, 28 (2d Cir. 1991)(citations omitted). Finally, in ruling on a motion to dismiss, the court may only consider "the allegations of the complaint and any documents attached to or incorporated by reference in the complaint[.]" Dangler v. New York City Off Track Betting Corp., 193 F. 3d 130, 138 (2d Cir. 1999) (citation omitted).
B. Official Capacity Claims
"Official capacity suits seek, in all aspects other than the party named as defendant, to impose liability on the government." Yorktown Med. Lab., Inc. v. Perales, 984 F.2d 84, 87 (2d Cir. 1991). Therefore, "[o]fficial capacity suits brought in federal court against a state, state agencies, or state officials must overcome the immunity accorded the states under the Eleventh Amendment." Id. (footnote omitted). Additionally, "[a]s a general matter, the Eleventh Amendment bars suits of any sort against a state in federal court unless the state has consented to be sued or Congress has expressly abrogated the state's immunity." Kostok v. Thomas 105 F.3d 65, 68 (2d Cir. 1997) (footnote omitted).
Applying these principles, Magistrate Judge DiBianco found that the Eleventh Amendment barred Plaintiff's claims against Defendants in their official capacities. Accordingly, Magistrate Judge DiBianco recommended that the Court dismiss Plaintiff's official capacity claims with prejudice.
Plaintiff objects to this recommendation because he asserts that each Defendant was personally involved in the alleged constitutional deprivation and that Defendants' official conduct violates "clearly established statutory or constitutional rights of which a reasonable person would have known." See Plaintiff's Objections to the Report-Recommendation at 3 (quoting Wilson v. Layne, 526 U.S. 603, 609 (1999)). Specifically, Plaintiff asserts that the Parole Board improperly denied him parole in 2004, after he notified the Parole Board at some point after his 2002 parole hearing about his concern regarding the constitutionality of the Act. See id. at 4. Plaintiff claims that, because Defendants were on notice of his concerns and nonetheless elected to follow the Act and not remedy the alleged constitutional violation, Defendants were violating state statutes and therefore are liable to him for damages pursuant to § 1983. Accordingly, Plaintiff requests that this Court find that Defendants are not immune from suit.
Despite Plaintiff's objections, there can be no doubt that the Eleventh Amendment bars Plaintiff's claims for damages against Defendants in their official capacities.*fn1 However, Plaintiff may assert his claims against Defendants in their individual capacities to the extent that he can establish that they were personally involved in the alleged violation of his constitutional rights. Accordingly, the Court adopts Magistrate ...