The opinion of the court was delivered by: Scullin, Senior Judge
MEMORANDUM-DECISION AND ORDER
On August 28, 2003, Plaintiffs Giraldi and Pilbeam brought this action pursuant to Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and § 504 of the Rehabilitation Act ("RA"), 29 U.S.C. § 794, against Defendant New York State Board of Parole.*fn1 Plaintiffs allege that Defendant discriminated against them in denying parole by impermissibly basing that denial on alleged disabilities.
A. Plaintiff Neal Giraldi
On July 11, 1975, Plaintiff Giraldi was convicted of murder and related offenses and was sentenced to an aggregate term of twenty-five years to life in prison. See Amended Complaint at ¶ 5.
Plaintiff Giraldi was first eligible for parole on November 11, 1998. See Dkt. Nos. 58-7, 8. During the interview process, he disclosed that, since beginning his sentence, he had been disciplined nineteen times between 1976 until 1982 and that, since 1992, he had been disciplined six more times, four of which were for possession of marijuana. See Dkt. No. 58-7 at 3. Defendant denied Plaintiff Giraldi parole "based upon the serious nature of the circumstances of [the] present offense," his "extensive drug history..., [and drug use while incarcerated] between 1992 and 1997." See Dkt. No. 58-8 at 20. Defendant found that such "factors demonstrate[d] that [Giraldi] present[ed] a serious threat to community safety and welfare...." See id.
Plaintiff Giraldi has unsuccessfully reapplied for parole on five more occasions in 2000, 2002, 2004, 2006, and 2008. See Dkt. Nos. 58-9-15; Transcript of Deposition of Neal Giraldi dated October 8, 2008 ("Giraldi Tr."), at 43. Defendant denied him parole in 2000 because his actions in stabbing the victim in front of her five-year-old son "showed no respect for human life." See Dkt. No. 58-10 at 9. Defendant again denied him parole in 2002 because, despite his record in programs, "[t]he immense risk [he] pose[d] to public safety preclude[d his] release to [the] community...." See Dkt. No. 58-12 at 9. In 2004, Defendant denied him parole because stabbing the "victim about the chest and torso, penetrating her heart and other organs," in front of and in addition to stabbing her son, constituted a "serious" offense which was further exacerbated by Plaintiff Giraldi's continued drug abuse while incarcerated. See Dkt. No. 58-14 at 14.
During his incarceration, Plaintiff Giraldi has retained an "acceptable disciplinary [record] and program participation -- including completion of a supervised drug rehabilitation program" and an advanced degree. See Amended Complaint at ¶ 12. Since 1998, state mental health experts have"repeatedly" examined Plaintiff Giraldi, each having "conclud[ed] that Giraldi has no current mental illness and is not violent or dangerous." See id. at ¶ 11; see also Giraldi Tr. at 25-26 (explaining that, since 1980, Plaintiff Giraldi has not required medical treatment for a mental health ailment). Additionally, Plaintiff Giraldi testified that he was able independently to attend to his daily hygiene, perform tasks, learn, ambulate, and communicate. See Giraldi Tr. at 26-27. Although he invoked his Fifth Amendment rights in refusing to discuss the details of the crime, Plaintiff Giraldi testified that it was possible that Defendant repeatedly denied him parole because Defendant was offended by the heinous nature of his crime. See id. at 37, 39-44.
B. Plaintiff Allen Pilbeam
On February 24, 1971, Plaintiff Pilbeam was convicted of felony murder and related offenses and was sentenced to an aggregate term of twenty-five years to life in prison. See Amended Complaint at ¶ 21.
Plaintiff Pilbeam became eligible for parole in December of 1995. See Dkt. Nos. 58-15, 16. After an extensive interview, Defendant denied him parole by a majority vote, relying on the "unprovoked and inexplicable shooting... and the rather detached manner in which [Plaintiff Pilbeam] appear[ed] to relate to that death" to conclude that release "would be inappropriate and... would serve to deprecate the magnitude of [the] offense in the eyes of the community and... undermine respect for the law." See Dkt. No. 58-16 at 29.
Plaintiff Pilbeam has unsuccessfully reapplied for parole on at least four additional occasions. See Dkt. Nos. 58-17-25. In 1999, Defendant denied him parole due to the seriousness of the crime of conviction and the senseless, unprovoked, and inexplicable murder of the victim. See Dkt. No. 58-18 at 11. Two years later, Defendant denied him parole because Defendant found that "there [wa]s a reasonable probability that [Plaintiff Pilbeam] would not live and remain at liberty without violating the law" and that his "release at this time [would be] incompatible with the welfare and safety of the community" given the seriousness of his crimes. See Dkt. No. 58-20 at 9. Defendant again denied him parole in 2001 because his "most vicious and violent act was carried out with no consideration or care for this defenseless and unsuspecting victim" and was unprovoked and unnecessary for the robbery. See Dkt. No. 58-22 at 12. Defendant denied Plaintiff Pilbeam parole in 2003 due to the heinousness of the crime and the tragedy of the victim's senseless and unprovoked death compounded by Plaintiff Pilbeam's disciplinary actions since his last Parole Board appearance. See Dkt. No. 58-24 at 8.
Defendant filed a motion for summary judgment. In support of that motion, Defendant claimed that (1) Plaintiffs did not currently suffer from a disability and that the ADA and RA were thus inapplicable; (2) it made an individualized judgment on each parole decision; and (3), to the extent that it considered a disability in determining whether to grant ...