The opinion of the court was delivered by: Hon. Norman A. Mordue, Chief United States District Judge
NATHANIEL E. BOSTIC 414 Baltic Street, Apt. 10C Brooklyn, New York 11217 Plaintiff pro se Office of the New York State Attorney General Senta B. Siuda, Esq. 615 Erie Boulevard West, Suite 102 Asst. Attorney General Syracuse, New York 13204-2465 Attorney for Defendant
MEMORANDUM DECISION and ORDER
In plaintiff's second amended complaint in this action, pursuant to 42 U.S.C. § 1983, he named various defendants, claiming that they violated plaintiff's constitutional and statutory rights in imposing conditions of parole and in postponing plaintiff's final parole revocation hearing. (Dkt. No. 8)(AC). Plaintiff also claimed that defendants retaliated against him for the exercise of his constitutional right to access to courts. AC ¶ 9. Plaintiff also appeared to challenge the constitutionality of a section of the New York State Executive Law governing parole revocation, together with the regulations pertaining to the statute. AC ¶¶ 12-14. Plaintiff sought declaratory, injunctive, and substantial monetary relief.
Defendants moved to dismiss the action for failure to state a claim pursuant to FED. R. CIV. P. 12(b)(6). (Dkt. No. 28). On September 22, 2006, Magistrate Judge Gustave J. Di Bianco recommended that the motion to dismiss be denied as against defendant Jackson regarding the conditions of plaintiff's parole. (Dkt. No. 30). Magistrate Judge Di Bianco recommended that the motion to dismiss be granted as to all other claims as against all other defendants. Id. On November 1, 2006, this court approved Magistrate Judge Di Bianco's recommendation. (Dkt. No. 32). As a result of this court's order, the only remaining claim is against defendant Barry Jackson regarding the conditions of plaintiff's parole.
Presently before this court is defendant Jackson's motion for summary judgment pursuant to FED. R. CIV. P. 56.*fn1 (Dkt. No. 35). Plaintiff has responded in opposition to the motion. (Dkt. No. 38). For the following reasons, this court agrees with defendant and will dismiss this action in its entirety.
Summary judgment may be granted when the moving party carries its burden of showing the absence of a genuine issue of material fact. FED. R. CIV. P. 56; Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990) (citations omitted). "Ambiguities or inferences to be drawn from the facts must be viewed in the light most favorable to the party opposing the summary judgment motion." Id. However, when the moving party has met its burden, the nonmoving party must do more than "simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). At that point, the nonmoving party must move forward with specific facts showing that there is a genuine issue for trial. Id.
The second amended complaint contained very few facts regarding the reason for the conditions imposed upon plaintiff's parole release. Thus, when defendants made their motion to dismiss, the only facts before Magistrate Judge Di Bianco were those in the amended complaint and the materials attached to the complaint. See Dangler v. New York City Off-Track Betting Corp., 193 F.3d 130, 138 (2d Cir. 1998)(when considering a motion to dismiss for failure to state a claim, the court may consider the complaint, together with any documents attached as exhibits or incorporated by reference).
The Exhibits that were attached to the amended complaint showed that plaintiff was paroled on September 10, 2001. Plaintiff's Ex. A. On September 24, 2001, plaintiff received a copy of various "special conditions" of his release. Id. Defendant Jackson witnessed plaintiff's receipt of the conditions. Id. Included in those "special conditions" was a requirement that plaintiff not reside with Donna Capani without his parole officer's permission. Id. ¶ 13D. Another "special condition" was that plaintiff could "only visit 20 Jefferson Avenue, Binghamton, NY on Saturdays, 12 noon to 6 p.m. for the purpose of visiting [his] wife and children." Id. ¶ 13E.
In Magistrate Judge Di Bianco's analysis of the conditions of parole issue, he found that it was "impossible" based on the amended complaint alone to determine the purpose for the restrictions imposed and whether the restrictions were reasonable. (Dkt. No. 30 at 13). Magistrate Judge Di Bianco, thus, recommended denying the motion to dismiss on this issue because he could not find that plaintiff could prove "no set of facts that would entitle him to relief." Id. at 14. This court approved Magistrate Judge Di Bianco's recommendation. (Dkt. No. 32).
Defendant Jackson has now moved for summary judgment and has included his own affidavit in support of the motion, together with exhibits establishing the facts surrounding the "special conditions" of release. (Dkt. No. 35)(Jackson Aff.). This court has had the ...