The opinion of the court was delivered by: Lyle E. Strom, Senior Judge United States District Court
This matter is before the Court on defendants Brian Fischer and George Alexander's motion for summary judgment (Filing No. 46).*fn1 Plaintiff did not file a response to the motion. Upon review, the Court finds defendants' motion should be granted.
On January 2, 2002, plaintiff was sentenced to concurrent indeterminate terms of imprisonment of 5 to 10 years for criminal possession and criminal sale of a controlled substance in the third degree (Filing No. 46-1, ¶ 1). At the time this action was filed, plaintiff was incarcerated as an inmate in the custody of the New York State Department of Correctional Services (DOCS) (Id., ¶ 2).
In 2004, plaintiff appeared before a merit board for parole release consideration, and merit release was denied (Filing No. 4, Ex. C at CM/ECF at 15-16). Plaintiff was denied parole after an appearance before the parole board in 2005, and plaintiff was denied parole again after an appearance before the parole board on September 4, 2007 (Filing No. 46-1, ¶¶ 3-4).
In May 2008, plaintiff commenced a CPLR Article 78 proceeding in the New York State Supreme Court to contest the September 4, 2007, denial of parole (Id., ¶ 6). In his Article 78 petition, plaintiff claimed, in part, that the parole board failed to consider "each and every" relevant statutory factor, and instead, focused on plaintiff's offense (Filing No. 46-4, Ex. G at CM/ECF 43). Plaintiff also argued that the parole board's determination was improperly based upon application of the "Pataki Agenda" (Id.).*fn3 In an order and judgment dated October 10, 2008, the New York State Supreme Court denied and dismissed plaintiff's CPLR Article 78 petition, finding the parole board considered the appropriate statutory factors, and there was no evidence in the record to support plaintiff's claim that the decision was the product of an executive policy to deny parole to similarly situated inmates (Id. at CM/ECF 43-44).
Plaintiff filed this 42 U.S.C. § 1983 action in January 2008. The amended complaint alleges violations of plaintiff's rights under the Sixth, Eighth, and Fourteenth Amendments to the Federal Constitution, as well as violations of due process and equal protection provisions of the New York State Constitution, stemming from plaintiff's parole denials. In July 2008, all defendants filed a motion to dismiss pursuant to Rule 12(b)(1), (6). In an order dated June 22, 2009, the Court dismissed (1) all claims against Sally Thompson, Jennifer Arena, and Vanessa Clarke; (2) all official capacity claims for damages; and (3) plaintiff's claims for Sixth and Eighth Amendment violations (Filing No. 38). The only claims that remain for consideration are plaintiff's due process and equal protection claims for damages against George Alexander, former Board of Parole Chairman, and Brian Fischer, DOCS Commissioner, in their individual capacities (Filing No. 46-1, ¶ 9).*fn4
Plaintiff was released on parole on November 25, 2008 (Id., ¶ 18). Plaintiff has failed to keep the Court appraised of his current address and did not appear for his deposition (Id., ¶¶ 19-20).
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2). A fact is material when its resolution affects the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).
The Court must view the evidence in a light most favorable to the nonmoving party, with all reasonable inferences drawn in that party's favor. See Matsushita Elec. Indus., 475 U.S. at 587. However, when a motion for summary judgment is properly made and supported, the nonmoving party may not rest on the mere denials or allegations in the pleadings, but must set forth specific facts sufficient to raise a genuine issue for trial. Fed. R. Civ. P. 56(e)(2). "Conclusory allegations, conjecture, and speculation . . . are insufficient to create a genuine issue of fact." Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998).
Plaintiff's complaint generally asserts three due ...