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Farid v. Bouey

May 19, 2008

MUJAHID FARID, PLAINTIFF,
v.
DAIZZEE BOUEY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gary L. Sharpe U.S. District Judge

MEMORANDUM-DECISION AND ORDER

I. Introduction

Mujahid Farid, an inmate at Franklin Correctional Facility, brings this action pursuant to 42 U.S.C. §§ 1983 and 1985 alleging that defendants, the New York State Board of Parole ("BOP"), its chairperson, and various commissioners, have repeatedly deprived him of fair parole consideration hearings since he first became eligible for parole in 1993. (See Compl.; Dkt. No. 1.) On March 9, 2007, defendants filed a motion to dismiss the Complaint. (Dkt. No. 32.) The motion was referred to Magistrate Judge David E. Peebles for report and recommendation. On February 4, 2008, Judge Peebles issued a Report and Recommendation ("R&R") recommending dismissal of the Complaint in its entirety. (Dkt. No. 41.)*fn1

Pending are Farid's timely objections ("Objections") to the R&R. (Dkt. No. 42.) For the reasons that follow, the R&R is adopted in relevant part and Farid's Complaint is dismissed.

II. Discussion

A. Due Process and Equal Protection Claims

The nature of this court's review of a magistrate judge's report and recommendation is dictated by the nature of the objections, if any, which are lodged in response to such report and recommendation. See generally Almonte v. New York State Div. of Parole, No. 9:04-cv-484, 2006 WL 149049 (N.D.N.Y. Jan. 18, 2006). In this case, Farid's Objections, though well-stated and thoughtful in some respects, are also incomplete. The R&R concluded that Farid's due process and equal protection claims were barred by the statute of limitations and collateral estoppel, and that the defendants were entitled to immunity in any event. (See R&R at 17-29.) In addition, the R&R determined that the due process and equal protection claims were without merit. (See R&R at 30-35.) Farid's Objections focus on the R&R's treatment of the statute of limitations, collateral estoppel, and immunity. (See Objections at 6-10, 16-17.) The Objections make no mention of the R&R's alternative holding that the Complaint fails to state a claim for due process and equal protection violations.

In light of the R&R's alternative holdings, it is unnecessary for the court to address Farid's arguments concerning the statute of limitations, collateral estoppel, and immunity. Instead, the court will address Judge Peebles's alternative holding that the due process and equal protection claims should be dismissed for failure to state a claim. As Farid has not objected to the R&R's recommendations in this regard, the court has reviewed the relevant portions of the R&R for clear error. See McAllan v. Von Essen, 517 F.Supp.2d 672, 679 (S.D.N.Y. 2007) ("If, however, the party makes only conclusory or general objections, or simply reiterates his original arguments, the Court reviews the Report and Recommendation only for clear error.") (citations and quotations omitted).*fn2

Upon review for clear error, the court finds that the R&R correctly concluded that Farid's due process and equal protection claims must be dismissed. (See R&R at 30-35.) The court acknowledges that Graziano v. Pataki, No. 06-cv-0480, 2006 WL 2023082 (S.D.N.Y. July 17, 2006), cited by Farid, arguably counsels a different result. However, the court is more persuaded by the reasoning of Mathie v. Dennison, No. 06-cv-3184, 2007 WL 2351072, at *6-12 (S.D.N.Y. Aug. 16, 2007), which rejected due process and equal protection claims similar to those advanced by Farid, and characterized Graziano as "unpersuasive." Accordingly, for the reasons stated in sections III-G and H of the R&R, Farid's due process and equal protection claims are dismissed.

B. Double Jeopardy Claim

In light of Farid's specific objection to the recommended dismissal of his double jeopardy claim, the court has reviewed the relevant portion of the R&R de novo. See Brito v. Phillips, 485 F.Supp.2d 357, 360 (S.D.N.Y. 2007) ("[W]here objections to a report are specific and address only those portions of the proposed findings to which the party objects, district courts should conduct a de novo review of the issues raised by the objections.") (citations and quotations omitted). Upon de novo review, the court concludes that Farid cannot state a claim under the double jeopardy clause of the Fifth Amendment. Farid's argument is not without superficial appeal. It is reasonable to question the propriety of using a crime for which he has already served his time as a partial basis for denying parole. However, Farid's argument is foreclosed by the Second Circuit's decision in Alessi v. Quinlan, 711 F.2d 497 (2d Cir. 1983), which affirmed the principle that "[t]he Double Jeopardy Clause applies to judicial proceedings, not parole." Id. at 501 (quoting Priore v. Nelson, 626 F.2d 211, 217 (2d Cir. 1980)). As in Alessi, the defendants in this case "did not violate the [Double Jeopardy] Clause by giving consideration to actions for which he had previously been punished." Alessi, 711 F.2d at 501. Accordingly, Farid's double jeopardy claim is dismissed.

C. Remaining Claims

Farid has not objected to the R&R's treatment of his ex post facto claim, his cruel and unusual punishment claim, his conspiracy claims, his Rehabilitation Act claim, and his Americans With Disabilities Act claim. Upon review for clear error, the court agrees with Judge Peebles's analysis of these claims. (See R&R at 35-37, 38-49.) Accordingly, Farid's ex post facto claim, cruel and unusual punishment claim, conspiracy claims, ...


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