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Schwartz v. Dennison

September 28, 2007



Plaintiff Jerrold Schwartz brings suit under 42 U.S.C. § 1983 for injunctive and declaratory relief and monetary damages against various members of the New York State Department of Correctional Services and New York State Division and Board of Parole alleging due process violations in connection with the denial of his parole hearing. Defendants move to dismiss the complaint pursuant to Rules 12(b)(6) and 12(b)(1) of the Federal Rules of Civil Procedure. For the reasons that follow, defendants' motion is GRANTED.


The facts, as stated in the Complaint, are as follows. Defendants, sued in their personal and official capacity, include: Robert Dennison, Chairman of the New York State Division of Parole ("DOP") and Board of Parole ("BOP"); Martin Cirincione, executive director of the DOP*fn1 ; Vanessa Clark, Edward R. Mevec, Marietta Gailor, R. Guy Vizzie, Thomas Grant, and Walter William Smith, Parole Board Commissioners who either issued the original decision of the BOP denying plaintiff parole, or reviewed that decision in an appellate capacity; Glenn S. Goord, Commissioner of the New York State Department of Correctional Services ("DOCS"); and James V. Granger, director of DOCS Office of Guidance and Counseling. (Compl. ¶¶ 4--8.)

Plaintiff, now forty-eight years old, served as a Boy Scout troop leader from 1980 through 2001. Plaintiff was incarcerated pursuant to an August 23, 2002 judgment of the New York Supreme Court, New York County, after pleading guilty to two counts of Sodomy in the Third Degree.*fn2 (Compl. ¶ 12.) Plaintiff was sentenced to two consecutive terms of one and one-third to four years for an aggregate sentence of two and two-thirds to eight years in prison, with an initial parole eligibility date at the completion of his minimum sentence in April 2005. (Compl. ¶¶ 2, 12.) The criminal conduct underlying plaintiff's sentence involved oral sex with a fifteen-year old male who was a member of his scout troop. (Compl. ¶¶ 13--15.) At plaintiff's initiative, all inappropriate contact between plaintiff and the complainant ceased in late 1996, and he continued to live in a law-abiding manner until his arrest in July 2001. (Compl. ¶¶ 17--19.) Plaintiff is a first-time offender and had no criminal record apart from this offense. (Compl. ¶ 16.) He further alleges that "[t]here is no evidence that plaintiff's unlawful conduct was anything but an aberration from his otherwise law abiding behavior." (Compl. ¶ 22.)

Plaintiff entered the custody of DOCS on September 12, 2002. (Compl. ¶ 25.) Beginning in mid-2003, nearly two years prior to plaintiff's first scheduled appearance before the Parole Board, he sought entry into the DOCS Sex Offender Counseling Program ("SOP"), a six month rehabilitative program. (Compl. ¶ 28.) By letter dated October 14, 2003, he was assured by defendant Granger that he would be able to complete the program before his parole hearing date. (Compl. ¶ 29.) It was not until December 2004, less than six months prior to his first scheduled appearance before the Parole Board, that he was placed in the SOP, and as a result, he was unable to complete the program before his parole hearing. (Compl. ¶¶ 30-- 31.) Nonetheless, in February 2005, defendant Goord issued plaintiff a Certificate of Earned Eligibility ("CEE") under New York Correctional Law § 805, indicating that he had successfully participated in a specially designed program of work and treatment and, if other conditions are met, entitling him to parole unless the Board found a "reasonable probability" that if released, "he will not live and remain at liberty without violating the law and that his release is not compatible with the welfare of society." (Compl. ¶ 33); N.Y. Correctional Law § 805.

Plaintiff came before the Parole Board on April 13, 2005, after completing his minimum sentence. (Compl. ¶ 36.) At the hearing, in addition to the CEE, plaintiff: offered a letter from his treating psychiatrist, an expert in the field of sexual offenders, opining that there was not a "reasonable probability" that plaintiff would violate the law if released and that his release was not incompatible with the welfare of society; presented numerous letters from community members supporting his application; demonstrated insight into and expressed remorse for his conduct; represented that he had committed no disciplinary infractions while incarcerated; and proposed a release plan including offers of employment and caring for his 76-year-old mother. (Compl. ¶¶ 26, 34, 37--38, 42.)

At the conclusion of the hearing, plaintiff was denied parole release and ordered to be held for another 24-month period, at the end of which he would be reconsidered for parole release. The Board stated in relevant part as follows:

Parole is denied. You currently serve an aggregate term of two years eight months to eight years upon consecutive sentences for multiple counts of sodomy in the third degree. Over the course of months in 1996 you engaged in repeated acts of sodomy against a young male victim, approximately fifteen years old, consisting of mouth to penis contact; the abuse occurred while the victim was a boy scout and you a scout leader. The Panel has concern about the harmful affects [sic] of your action upon this vulnerable victim. You stand to benefit from completion of the Sex Offender Counseling Program.*fn3

Therefore, while the Panel notes your receipt of an Earned Eligibility Certificate and overall positive adjustment as an inmate, both in terms of discipline and willingness to program, your programming progress is not yet commensurate with the harm inflicted and the Panel concludes that if you are released at this time there exist [sic] a reasonable probability that you will not live and remain at liberty without further violation of the law. The vulnerable nature of the victim makes your release contrary to the best interest of the community at this time.

(Compl. ¶ 47.) Thereafter, plaintiff unsuccessfully appealed the Board's decision. (Compl. ¶¶ 49--50.) In its statement of findings, the Appeals Unit concluded that issuance of a CEE "does not automatically entitle [a prisoner] to release" and that plaintiff would benefit from completion of the SOP.*fn4 (Compl. ¶ 50.)

In November 2005, plaintiff instituted an Article 78 proceeding in state court challenging the ruling of the Board as arbitrary and capricious and in violation of the Board's own guidelines. (Compl. ¶ 55.) On April 18, 2006, Justice Alice Schlesinger annulled the Board's determination and ordered that BOP provide plaintiff with a de novo hearing at the earliest possible date. Schwartz v. Dennison, No. 115789/05, 2006 N.Y. Misc. LEXIS 4148, at *28 (N.Y. Sup. Ct. Apr. 18, 2006). Justice Schlesinger found that the Board failed to rebut the presumption of parole release found in N.Y. Correctional Law § 805 for recipients of CEE's who have completed their minimum terms. Id. at *23("An examination of the Parole Board decision reveals that it lacks a rational basis and fails to rebut the presumption of release.")BOP appealed this decision, which was automatically stayed pending appeal; plaintiff moved to vacate the stay so as to obtain a timely new parole hearing, but the motion was denied. Schwartz v. Dennison, No. M-3363, 2006 N.Y. App. Div. LEXIS 10395 (N.Y. App. Div. Aug. 24, 2006). The New York Appellate Division had not yet decided the merits of plaintiff's appeal by the time of his next regularly scheduled parole hearing in February 2007. At that hearing, plaintiff was again denied parole. Since plaintiff had received a de novo hearing, the Appellate Division dismissed the appeal as moot, and noted, in any event, that the petition should have been dismissed for improper venue. Schwartz v. Dennison, 833 N.Y.S.2d 386, 387 (N.Y. App. Div. 2007).

Plaintiff further alleges that evidence acquired after the first Article 78 proceeding reveals a practice and policy of preventing sex offenders from meeting the "standards and requirements for parole release" until after their first appearance before the Parole Board by denying them timely entry into the treatment program. (Compl. ¶ 56.) According to plaintiff, the State's rationale is that parole release of sex offenders prior to their conditional release date, a period twice the length of the prisoner's minimum sentence, is "statistically unlikely," and therefore delayed entry into the treatment program (due to a long wait list) was adequate. (Id.); Schwartz v. Dennison, No. 115789/5, 2006 N.Y. Misc. LEXIS 3910, at *2--*3 (N.Y. Sup. Ct. Nov. 17, 2006).

Plaintiff has stated five causes of action against defendants, all brought under 42 U.S.C. § 1983*fn5 and based on the Due Process Clause of the Fourteenth Amendment. Plaintiff alleges that defendants violated his due process rights by: failing to implement and ignoring state law entitling recipients of CEE's to presumptive release; using irrational and unreasonable procedures at plaintiff's parole hearing; improperly denying plaintiff parole; and withholding timely entry into a required treatment program. Plaintiff seeks a declaration that defendants' policy of ignoring state requirements is unconstitutional and that state law creates in recipients of CEE's a legitimate expectation of parole release; an affirmative injunction requiring BOP to provide plaintiff with a new parole hearing "that comports with the law"; and monetary relief.


When considering a motion to dismiss under Rule 12(b)(6), the Court "must accept as true the factual allegations in the complaint, and draw all reasonable inferences in favor of the plaintiff." Bolt Elec., Inc. v. City of New York, 53 F.3d 465, 469 (2d Cir. 1995) (citations omitted). Pursuant to Fed. R. Civ. P. Rule 8(a), the complaint must include "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2); see also Conley v. Gibson, 355 U.S. 41, 47 (1957) (complaint must "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests."). The complaint "does not need detailed factual allegations," yet it "requires more than labels and conclusions, and a formalistic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964--65 (2007). Rather, the "[f]actual allegations must be enough to raise a right to relief above the speculative level." Id. at 1965; see also Iqbal v. Hasty, 490 F.3d 143, 157--58 (2d Cir. 2007) (plaintiff must "amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible.").

The Court is generally limited to "the factual allegations in [the] complaint, documents attached to the complaint as an exhibit or incorporated in it by reference, matters of which judicial notice may be taken, or documents either in plaintiff['s] possession or of which plaintiff[] had knowledge and relied in bringing ...

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