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Germenis v. N.Y.S. Dep't of Correctional Services

September 9, 2009

SPYRO GERMENIS, PLAINTIFF,
v.
N.Y.S. DEPARTMENT OF CORRECTIONAL SERVICES, BRIAN FISCHER-COMMISSIONER N.Y.S. DEPARTMENT OF PAROLE, GEORGE B. ALEXANDER-COMMISSIONER OF PAROLE, DEFENDANTS.



The opinion of the court was delivered by: Gerard E. Lynch, District Judge

OPINION AND ORDER

Pro se plaintiff Spyro Germenis, a New York State prisoner, brings this action under 42 U.S.C. § 1983 alleging that defendants, the New York State Department of Correctional Services ("DOCS"), the New York State Division of Parole ("DOP"), and the head of each of those agencies, DOCS Commissioner Brian Fischer and DOP Chairman George B. Alexander, violated his constitutional rights to due process and equal protection by denying him fair parole hearings from 1997 to 2007, insofar as his sentencing minutes and other unspecified documents were not considered, resulting in the denial of his parole. Defendants move to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). For the reasons set forth below, defendants' motion will be granted and the complaint dismissed.

BACKGROUND

In 1983, Germenis pled guilty to murder in the second degree and was sentenced to fifteen years to life in prison. (Hartofilis Decl. Ex. A.)*fn1 Germenis first appeared before the parole board in September 1997, at which time he was denied parole. (Hartofilis Decl. Ex. B.) Between that time and September 6, 2005, he appeared before the Parole board four more times and was denied parole on each occasion. (Hartofilis Decl. Exs. B & G at 1.) A sixth parole hearing was scheduled for September 11, 2007. (Compl. at 2.) At that time, however, the Parole board informed Germenis that his sentencing minutes were not in the DOP's possession and the hearing was accordingly adjourned three months, until December 11, 2007. (Compl. at 2.)

During this adjournment, a parole officer informed Germenis that the DOP could not obtain his sentencing minutes because the stenographer had died and did not leave any notes. (Id.) Germenis's sixth parole hearing went forward as scheduled on December 11, 2007. (Hartofilis Decl. Ex. E (minutes of parole hearing); see also Compl. at 1.) Despite the complaint's intimations to the contrary, the transcript of this hearing reveals, and Germenis ultimately concedes, that the DOP did have copy of Germenis's sentencing minutes as of this sixth parole hearing. (Hartofilis Decl. Ex. E. at 2-4; see also 3/11/09 Germenis Aff. ¶ 4.)*fn2 These sentencing minutes, in fact, were reviewed in detail at this parole hearing, but did not affect the Parole board's ultimate decision to deny Germenis parole once again. (Hartofilis Decl. Ex. E at 2-4, 17.) This is not surprising, given that the sentencing transcript itself reveals that the sentencing judge made no recommendation regarding Germenis's parole and simply imposed the indeterminate term of fifteen years to life negotiated by the parties in the plea agreement. (Hartofilis Decl. Exs. A.)

Although recognizing that his sentencing minutes were considered by the Parole board in December 2007, Germenis infers from the fact that defendants lacked the sentencing minutes in September 2007 that the minutes were not considered at his first five parole hearings. He further posits that still other documents that are supposed to be considered in parole determinations under New York law may be missing from his file. (Compl. at 2.) Germenis contends that these deficiencies, which Germenis alleges to have resulted from the defendants' "gross negligence," violated his due process and equal protection rights and deprived him of any meaningful chance of being paroled throughout the years. (Id. at 2-4.)

Germenis commenced this action on September 17, 2008,*fn3 seeking compensatory and punitive damages, plus an injunction ordering defendants "to discontinue the practice of conducting a [p]arole consideration hearing without having the statutorily mandated documents and all required documents needed to properly review, conduct and decide a [p]arole consideration request." (Compl. at 4.) Defendants moved to dismiss the action, in part, for lack of subject-matter jurisdiction, and, in its entirety, for failure to state a claim upon which relief can be granted. Germenis timely opposed the motion and, along with his opposition papers, purported to amend the complaint to add allegations that his December 11, 2007 parole hearing was tainted, not only for a potential lack of consideration of all relevant documents, but also because one of the three commissioners who denied Germenis parole has since been convicted of sex crimes. (See Am. Compl. attached to P's 3/11/09 Opp'n.) Additionally, having now admitted for the first time in his opposition papers that the parole board did have his sentencing minutes at the December 2007 parole hearing, the amended complaint also asserts, without elaboration, that the parole hearing was not recorded and that the hearing transcript does not accurately reflect what occurred. (Id.)

Apart from this newest allegation concerning the accuracy of the hearing transcript, the question to be decided, as Germenis puts it, is what remedy exists for defendants' mishandling of the sentencing minutes -- and perhaps other documents -- for some period of time, and the resulting inability to consider those documents in the parole determinations. The answer, in this federal forum at least, is none, and the complaint accordingly will be dismissed.

DISCUSSION

I. Motion to Dismiss Standard

Defendants move to dismiss under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. While recognizing that it is often preferable to consider Rule 12(b)(1) jurisdictional challenges before any other arguments for dismissal, e.g., United States ex rel Kreindler & Kreindler v. United Tech. Corp., 985 F.2d 1148, 1155-56 (2d Cir. 1993), here, because defendants' arguments that the complaint must be dismissed pursuant to Rule 12(b)(6) are dispositive of the action, whereas the Rule 12(b)(1) arguments, even if fully meritorious, would only serve to hive off various aspects of the litigation, the following analysis will be limited to the legal sufficiency of Germenis's claims under Rule12(b)(6). See Jones v. Georgia, 725 F.2d 622, 623 (11th Cir. 1984) (noting that "exceptions" to this "generally preferable approach" exist, inter alia, "when the plaintiff's claim has no plausible foundation" (internal citations omitted)), cited with approval in Kreindler, 985 F.2d at 1156.

A motion to dismiss for failure to state a claim under Rule 12(b)(6) tests the legal sufficiency of the plaintiff's claims for relief. See Patane v. Clark, 508 F.3d 106, 112 (2d Cir. 2007). In considering the legal sufficiency of the claims, a court must accept as true all well-pleaded facts in the complaint, "as supplemented by undisputed facts that are matters of public record." State Employees Bargaining Agent Coal. v. Rowland, 494 F.3d 71, 77 (2d Cir. 2007). Additionally, a court may also consider documents that are "integral" to the complaint, even if neither physically attached to nor incorporated by reference into the complaint. Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006), quoting Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2001). While a court evaluating a motion to dismiss must always draw all reasonable inferences in plaintiff's favor, e.g., ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 93 (2d Cir. 2007), here, because plaintiff is proceeding pro se, the duty is amplified and the factual allegations must be construed liberally "to raise the strongest arguments that they suggest," Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996).

The notice-pleading standard of the Federal Rules of Civil Procedure requires that a complaint include a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. Pro. 8(a)(2). Nevertheless, to survive a motion to dismiss under Rule 12(b)(6), a complaint must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 570 (2007). This requires, at a "bare minimum," that the plaintiff "provide the grounds upon which his claim rests through factual allegations sufficient to raise a right to relief above the speculative level." Goldstein v. Pataki, 516 F.3d 50, 57 (2d Cir. 2008) (internal quotations omitted). Although "[a] pro se complaint... must be held to less stringent standards than formal pleadings drafted by lawyers," Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam), ultimately, "when the allegations in a ...


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