The opinion of the court was delivered by: John T. Elfvin S.U.S.D.J.
Plaintiff, Louis J. Yourdon, an inmate at Orleans Correctional Facility, commenced this pro se action pursuant 42 U.S.C. §1983 on November 15, 2001 (Dkt. #1). Plaintiff claims that defendants violated his constitutional rights at his parole hearing and in denying him parole. Upon initial review, the Court dismissed the action sua sponte on December 3, 2001 stating that (1) because plaintiff's constitutional challenge of his parole denial is a determination which affects the overall length of his imprisonment, the sole federal remedy is a writ of habeas corpus, (2) plaintiff may not circumvent the exhaustion prerequisites for habeas corpus relief by suing under 42 U.S.C. §1983 and (3) plaintiff has no protected liberty interest in parole (Dkt. #2).
Plaintiff appealed to the Second Circuit Court of Appeals, which vacated the judgment of dismissal and remanded the matter for reconsideration in light of the Supreme Court's recent ruling in Wilkinson v. Dotson*fn2 , to determine whether defendants were served with process, and to reconsider whether defendants are entitled to immunity (Dkt. #5).*fn3
The Court thereafter issued an Order directing service on the defendants and directing that they respond to the complaint and the issues raised in the Summary Order of the Second Circuit (Dkt. #6). On November 18, 2005 (after an extension of time to respond was granted), the defendants filed a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure ("F.R.Cv.P.") (Dkt. #8) arguing that (1) plaintiff failed to show that a constitutional violation occurred because a teleconference interview instead of a personal interview did not deprive plaintiff of a right, privilege or immunity secured by the Constitution, (2) the parole commissioners are entitled to absolute immunity, (3) Governor Pataki was not personally involved and (4) all defendants are entitled to qualified immunity as to plaintiff's due process claim. The plaintiff having filed no response, the matter was deemed submitted on January 20, 2006.*fn4
The complaint herein is comprised of two causes of action against the defendants, brought against them individually and in their official capacities. The first cause of action alleges that on December 6, 2006 (the date of the parole hearing), the defendants violated his due process rights by conducting his parole hearing according to a policy that allows video-teleconferencing (as plaintiff describes it: "techno-screen" interview policy) rather than in-person interview. Specifically, the complaint states that "[t]he hearsay conversation on the technoscreen, pre-cluded [sic] due process from being accorded." The second cause of action alleges violations of the 8th Amendment of the U.S. Constitution occurring on December 8, 2000 (the date that parole was denied), stating that "the new Parole Board policy %%% concerning sex offenders, inflicted cruel and unusual punishment upon the plaintiff." In this regard, although difficult to decipher, the Court construes that plaintiff claims defendants abused their discretion by considering erroneous and irrelevant factors in denying him parole, either in violation of New York State Executive Law and/or in implementing policies which do not comport with that law. Despite plaintiff's terminology, at best, this is also a due process claim. See McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999)("district court's should read the pleadings of a pro se plaintiff liberally and interpret them to raise the strongest arguments they suggest") (internal quotations omitted).
When considering a motion to dismiss pursuant to F.R.Cv.P. 12(b)(6), the Court "must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor." Phelps v. Kapnolas, 308 F.3d 180 (2d Cir. 2002). The motion should not be granted "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." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Accordingly, the Court is not concerned with whether plaintiff may ultimately succeed on his claims but must "assess the legal feasibility of the complaint." Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir. 1998). In light of plaintiff's pro se status, the Court has construed his pleadings liberally. See Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 176 (1980)(per curiam); Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct.594, 595 (1972).
Defendants argue that, although the effect of Wilkinson now allows 42 U.S.C. §1983 to be used to challenge the constitutionality of state parole procedures, the allegations in the complaint fail to implicate a constitutional right, as plaintiff has no constitutionally protected interest in parole in New York State.
The plaintiffs in Wilkinson were state prisoners in Ohio seeking declaratory and injunctive relief claiming that Ohio's state parole procedures were unconstitutional. The Supreme Court's ruling therein was narrow in that it only allowed a state prisoner who challenges the constitutionality of the state parole procedures to bring a claim under 42 U.S.C. §1983 for declaratory and injunctive relief "where success in the action would not necessarily spell immediate or speedier release for the prisoner" and did not create or comment on any constitutional entitlements relating to parole. Wilkinson, supra, 544 U.S. at 81 - 82, 125 S.Ct. at 1248.
Clearly, Wilkinson did not address whether discretionary parole in New York imparts a constitutional liberty interest in an inmate within the New York State Corrections System thereby entitling him to due process under the United States Constitution.*fn5 The Court herein finds that plaintiff's complaint fails to state a due process claim*fn6 because plaintiff has no liberty interest in parole and no constitutional due process rights in the parole process in New York.
The law in New York State is clear that there is no due process right or protected liberty interest in parole. Russo v. New York State Board of Parole, 50 N.Y.2d 69, 73 (1980). New York has given no guarantee or expectation to an incarcerated individual that he will be considered for parole at any particular time. Ibid. Further, the fact that "guidelines are provided does not mean they cannot be deviated from or [that they] create an entitlement to release at any particular time; the system is thus discretionary and holds out no more than the possibility of parole", hence there is "no protected liberty interest which would implicate the due process guarantee". Ibid. ; see also Marvin v. Goord, 255 F.3d 40, 44 (2d Cir. 2001) (affirming the district court's [W.D.N.Y., Elfvin, J.] dismissal of plaintiff's due process claim challenging a parole process on the ground that New York State's parole scheme does not create a protectable liberty interest); Barna v. Travis, 239 F.3d 169, 171 (2d Cir. 2001) ("plaintiffs have no liberty interest in parole, and the protections of the Due Process Clause are inapplicable").
Construing that portion of plaintiff's complaint that alleges he was unfairly subject to a teleconference interview in place of the 'required' in person interview as one alleging a violation of the Equal Protection Clause (see, McPherson, supra) likewise does not create a claim upon which relief can be granted. The use of teleconference interview technology in place of personal interviews at parole hearings is neither irrational nor arbitrary and does not give rise to an Equal Protection Claim. Boddie v. NYS Div. of Parole, 288 F.Supp.2d 431, 441 (S.D.N.Y. 2003).
So, if the allegations in the complaint are not ones that implicate due process or Equal Protection rights, then what is the nature of the claims and do they implicate any federal rights? The core of plaintiff's allegations are that the parole board arbitrarily failed to follow their own state procedural standards or that the new state procedural standards with respect to sex offenders were unfair. While this may be brought as a New York CPLR (Civil Practice Law and Rules) Article 78 proceeding*fn7 , it certainly does not implicate federal law. See Pennhurst State School & Hosp.l v. Halderman, 465 U.S. 89, 91, 106 (1984)("A federal court's grant of [injunctive] relief against state officials on the basis of state law, whether prospective or retroactive, does not vindicate the supreme authority of federal law %%% it is difficult to think of a greater intrusion on state sovereignty than when a federal court instructs state officials on how to conform their conduct to state law. Such a result conflicts directly with the principles of ...