The opinion of the court was delivered by: Thomas J. McAVOY, Senior District Court Judge
Presently before this Court for consideration is pro se plaintiff Donald Griffin's amended complaint, application for in forma pauperis status, and request for injunctive relief. Dkt. Nos. 2, 4, 5.*fn1
After reviewing the information that plaintiff provided in his in forma pauperis application, the Court concludes that he meets the financial criteria for commencing this action in forma pauperis . Therefore, the Court must now consider the sufficiency of the allegations that he has set forth in his amended complaint in light of 28 U.S.C. § 1915(e). Section 1915(e) directs that, when a plaintiff seeks to proceed in forma pauperis , "(2) . . . 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).*fn2 Thus, although the court has the duty to show liberality toward pro se litigants, see Nance v. Kelly , 912 F.2d 605, 606 (2d Cir. 1990) (per curiam), and should exercise "extreme caution . . . in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and both parties (but particularly the plaintiff) have had an opportunity to respond, . . ." Anderson v. Coughlin , 700 F.2d 37, 41 (2d Cir. 1983) (internal citations omitted), the court also has a responsibility to determine that a claim is not frivolous before permitting a plaintiff to proceed with an action in forma pauperis .*fn3
Plaintiff complains that he was denied discretionary parole release following an appearance before Parole Commissioners Lemons and Hernandez in October, 2008 in violation of his First Amendment rights as well as his rights under the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. §§ 2000 et seq. ("RLUIPA").
Dkt. No. 5.*fn4 According to plaintiff, his refusal to participate in his assigned program - the Sex Offender Treatment Program ("SOTP") - was cited by the parole board as a basis for denying release. Plaintiff alleges that he has refused to participate in the SOTP because successful completion thereof would require him to admit facts which are not true, and that engaging in the "sinful practice of lying" violates his religious beliefs. Id . at 3.*fn5
The sole defendant named in the amended complaint is George Alexander, Chairman of the New York State Division of Parole. Dkt. No. 5 at 1. Plaintiff does not allege that Defendant Alexander was personally involved the parole determination complained of by plaintiff. Rather, plaintiff claims that defendant Alexander has "condoned" the allegedly unlawful actions taken by Commissioners Lemons and Hernandez. Plaintiff seeks an order of this Court directing defendant to "release plaintiff to discretionary parole supervision" and prohibiting the imposition of release conditions on plaintiff related to his refusal to program. Id . at 6. For a complete statement of plaintiff's claims, reference is made to the amended complaint.
As noted, plaintiff seeks an order of this Court directing his release from prison to discretionary parole supervision. To the extent that plaintiff seeks to alter the fact or duration of his custody, he is advised that such relief may only be obtained by way of a habeas corpus petition. See Channer v. Mitchell , 43 F.3d 786, 787 (2d Cir. 1994) ("habeas corpus -- not a § 1983 action -- provides the sole federal remedy where a state prisoner challenges the fact or duration of his imprisonment ....") (citing Preiser v. Rodriguez , 411 U.S. 475, 490 (1973)). Because the relief sought by plaintiff is beyond the purview of this Court in this civil rights action, the amended complaint, as drafted, fails to state a claim upon which relief may be granted and is therefore subject to dismissal.
Dismissal of the amended complaint is also warranted because plaintiff has failed to allege facts sufficient to state one or more claims for relief which are "plausible" on their face. Plaintiff's First Amendment claim arises, if at all, pursuant to 42 U.S.C. § 1983, which establishes a cause of action for "the deprivation of any rights, privileges, or immunities secured by the Constitution and laws" of the United States. German v. Fed. Home Loan Mortg. Corp ., 885 F.Supp. 537, 573 (S.D.N.Y. 1995) (citing Wilder v. Virginia Hosp. Ass'n , 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983)) (footnote omitted). The Supreme Court has explained that "[t]he purpose of § 1983 is to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such deterrence fails." Wyatt v. Cole , 504 U.S. 158, 161 (1992).
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's statutory scheme for determining whether to grant or deny parole.
Barna v. Travis , 239 F.3d 169, 171 (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 , 239 F.3d at 171.*fn6 Moreover, while relief may be available pursuant to § 1983 in limited circumstances where it appears that a plaintiff was denied parole release "arbitrarily" or "capriciously," for example, based on an inappropriate consideration of a protected classification (such as race, religion, gender, economic status, etc.) or an "irrational distinction," see Standley v. Dennison , No. 9:05-CV-1033, 2007 WL 2406909 *1 (N.D.N.Y. Aug. 21, 2007) (quoting Yourdon v. Johnson , 01-CV-812E, 2006 WL 2811710 at *2 (W.D.N.Y. Sept. 28, 2006)), the Court finds that the amended complaint fails to state such a claim. Plaintiff does not identify himself as a member of a protected class nor does he allege that he was denied parole release based upon an "irrational distinction" having been made between himself and other inmates.
The Court also finds that RLUIPA does not provide a basis for the assertion of plaintiff's claims regarding the SOTP against defendant Alexander. RLUIPA prohibits the government from imposing a substantial burden on a prisoner's religious exercise unless the burden is the least restrictive means of furthering a compelling governmental interest. See 42 U.S.C. § 2000cc-l(a). For a burden to be substantial, a plaintiff must demonstrate that the government's action pressures him to commit an act forbidden by his religion or prevents him from engaging in conduct or having a religious experience mandated by his faith. In addition, this interference must be more than an inconvenience; the burden must be substantial and an interference with a tenet or belief that is central to religious doctrine. Pugh v. Goord , 571 F.Supp.2d 477, 504-05 (S.D.N.Y. 2008); Graham v. Mahmood , No. 05-10071, 2008 WL 1849167, at *14 (S.D.N.Y.2008). Upon review, the Court finds that any RLUIPA claim that plaintiff may have regarding the SOTP is not cognizable in this action against defendant Alexander.
Moreover, the factual allegations set forth in the amended complaint clearly demonstrate that dismissal of the amended complaint is warranted. Plaintiff provided the transcript of his October, 2008 parole board hearing, which reveals that the commissioners considered and relied upon the statutory factors in making their determination. Noting the seriousness of plaintiff's offense as well as the violence of his criminal history, the parole commissioners stated that "[s]ince your last Board, you've incurred a Tier III ticket for creating a disturbance resulting in SHU time." See Dkt. No. 1 at p. 9 (Hearing Transcript at 10). It later appearing that this ...