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Duemmel v. Fischer

January 23, 2009

THOMAS DUEMMEL, PLAINTIFF,
v.
BRIAN FISCHER; NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES; DAVID A. PATERSON; ROBERT DENNISON; SUSAN O'CONNELL, DEFENDANTS.



The opinion of the court was delivered by: Thomas J. Mcavoy Senior United States District Judge

DECISION AND ORDER

I. Background

Currently before the Court for review is plaintiff Thomas Duemmel's amended complaint. Dkt. No. 7. Plaintiff submitted the amended complaint in compliance with the Decision and Order of this Court filed on October 23, 2008. Dkt. No. 5 ("October Order"). The October Order granted plaintiff's in forma pauperis application. Id.

II. Discussion

Section 1915(e)(2)(B) of Title 28 of the United States Code, which governs proceedings in forma pauperis, directs, in pertinent part, that "the court shall dismiss the case at any time if the court determines that -- . . . (B) the action . . . -- (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B). It is the court's responsibility to determine whether a plaintiff may properly maintain his complaint in this District before the court may permit a plaintiff to proceed with an action in forma pauperis. See 28 U.S.C. § 1915(e)(2).

Moreover, under 28 U.S.C. § 1915A, the Court must review any complaint in a civil action in which a prisoner seeks redress from officers or employees of a governmental agency and "identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint ... is frivolous, malicious, fails to state a claim upon which relief may be granted or seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C. § 1915A(b); see also Carr v. Dvorin, 171 F.3d 115, 116 (2d Cir.1999) (per curiam). An action is frivolous as a matter of law when, inter alia, it is based on an "indisputably meritless legal theory" - that is, when it "lacks an arguable basis in law ... or [when] a dispositive defense clearly exists on the face of the complaint." Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir.1998).

The gravamen of plaintiff's amended complaint is that he has been denied parole release in violation of his constitutional rights. Dkt. No. 7. Plaintiff also alleges that defendants denied him the right to participate in SOP in a timely manner.*fn1 Id. Plaintiff seeks his immediate release from custody and an "examination by the Court" of the denial of programming and parole. Id. For a more complete statement of plaintiff's claims, refer to the amended complaint.

A. Defendants

Plaintiff has not named "New York State Department of Correctional Services," "David Paterson," or "Susan O'Connell" as defendants in his amended complaint. Accordingly, "New York State Department of Correctional Services," "David Paterson," or "Susan O'Connell" are dismissed as defendants in this action.

B. No right to parole or programming

In order to proceed with his claim that he was denied parole in violation of his constitutional rights, it must appear that plaintiff enjoyed a protected liberty interest under New York State's statutory scheme for determining whether to grant or deny an application for parole. See Barna v. Travis, 239 F.3d 169, 170 (2d Cir. 2001) (per curiam). It is well-settled, however, that "the New York parole scheme is not one that creates in any prisoner a legitimate expectancy of release," and that, as a result, prisoners in New York state are not entitled to the safeguards afforded by federal due process with respect to parole release determinations. Barna, supra, 239 F.3d at 171; Boothe v. Hammock, 605 F.2d 661, 663-64 (2d Cir. 1979).*fn2 Rather, any alleged violations of procedural requirements "are matters for consideration by the state courts." Boothe, 605 F.2d at 665.

It is also clear that inmates do not enjoy a constitutionally protected right to participate in particular programs or to parole release. Allen v. New York, 9:05-CV-1613, 2006 U.S. Dist. LEXIS 72646, at *3 (N.D.N.Y. Oct. 5, 2006) (Mordue, C.J.) (citing Lee v. Governor of New York, 87 F.3d 55, 58-59 (2d Cir. 1996); Grant v. Ahern, 2005 U.S. Dist. LEXIS 43274, No. 03-CV-0539, 2005 WL 1936175 *5 (N.D.N.Y.) (Magnuson, V.J.)).*fn3

C. Release from custody

To the extent that plaintiff seeks his immediate release from custody, he is advised that such relief may only be obtained by way of a habeas corpus petition brought pursuant to 28 U.S.C. § 2254. See id.; Preiser v. Rodriguez, 411 U.S. 475, 490 (1973) ("[c]ongress has determined that habeas corpus is the appropriate remedy for state prisoners attacking the validity" of their underlying criminal conviction); see also Channer v. Mitchell, 43 F.3d 786, 787 (2d Cir. 1994) ("habeas corpus -- not a ยง 1983 action -- ...


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