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Loria v. Butera

September 29, 2010

THEODORE E. LORIA, PLAINTIFF,
v.
ROBERT BUTERA AND KEVIN DALY, DEFENDANTS.



The opinion of the court was delivered by: Scullin, Senior Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

On May 5, 2009, Plaintiff, a former inmate of the New York State Department of Correctional Services ("DOCS"), brought this action under 42 U.S.C. § 1983, alleging that (1) Defendant Butera deprived him of due process by failing to provide him notice of his parole re-release hearing or affording him the right to counsel during the same, (2) Defendants conspired to deprive him of due process, and (3) Defendant Daly retaliated against him for filing a grievance against a facility psychologist. All of these allegations result from Plaintiff's allegation that Defendant Butera, a facility parole officer, improperly rescinded his initial determination that Plaintiff, a parole violator, was suitable for a conditional parole re-release without first appearing for a Parole Board hearing.

Currently before the Court is Defendants' motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.

II. BACKGROUND

Plaintiff was convicted of Criminal Sale of a Controlled Substance in the third degree for which he received a minimum sentence of five years and an aggregate maximum sentence of ten years. On January 27, 2005, Plaintiff was released on parole. On January 17, 2007, Plaintiff's parole was revoked after a final parole revocation hearing at which the court imposed a ten-month delinquent time assessment, with an estimated expiration date of October 12, 2007.

On March 8, 2007, while at Fishkill Correctional Facility, Plaintiff received a Tier II Misbehavior Report and was found guilty of refusing a direct order. On May 11, 2007, while at Auburn Correctional Facility, Plaintiff received a second Tier II Misbehavior Report and was found guilty of causing property damage or loss.

On May 23, 2007, Defendant Butera, a facility parole officer, reviewed Plaintiff's parole status for re-release consideration based on the calculation of his earliest release date being October 12, 2007. At the time of this review, Defendant Butera knew that Plaintiff had two Tier II Misbehavior Reports and that he had declined to participate in the Transitional Services Programs while at the Fishkill facility. Based on this review, Defendant Butera decided that Plaintiff was eligible for re-release to parole as of October 12, 2007.

On June 20, 2007, the Office of Mental Health ("OMH") conducted a mental health evaluation of Plaintiff, and the Mental Status Report that OMH produced as a result of this examination "stated that Plaintiff would benefit from outpatient psychiatric treatment which would include verbal therapy and possible medication evaluation."

On July 2, 2007, OMH's psychologist issued Plaintiff a third Tier II Misbehavior Report, and Plaintiff was found guilty of refusing facility program treatment. On that same day, Plaintiff filed a grievance against the psychologist who had issued him the misbehavior report for providing him with inadequate mental health care.

On or about August 1, 2007, a Parole Board Release Decision Notice (form 9026) was sent to Plaintiff, indicating that Plaintiff's "earliest release date" would be October 12, 2007. On August 15, 2007, during Plaintiff's quarterly review with his corrections counselor, Defendant Daly, Plaintiff refused to participate in Transitional Services Programs Phases II and III and signed a refusal form to that effect.*fn1 Thereafter, Defendant Daly informed Defendant Butera of this refusal.

On August 16, 2007, Defendant Butera rescinded his decision that Plaintiff was suitable for parole re-release without prior Parole Board approval and scheduled Plaintiff for the next available Parole Board Release hearing, to be held on August 28, 2007. That same day, Plaintiff rescinded his refusal to participate in Transitional Services Programs Phases II and III. On August 28, 2007, at the Parole Board Release Hearing, the Parole Board denied Plaintiff re-release on conditional parole. Plaintiff asserts that Defendant Butera intentionally covered-up Plaintiff's release date of October 12, 2007, on the form he sent to the Parole Board and failed to inform the Parole Board that Plaintiff was scheduled to be re-released on October 12, 2007.

III. DISCUSSION

Defendants assert that the Court should dismiss Plaintiff's complaint because (1) Plaintiff has no liberty interest in parole re-release and, therefore, cannot state a claim under 42 U.S.C. ยง 1983 for denial of due process; (2) Plaintiff makes only conclusory allegations of retaliation, and Defendants have established legitimate, non-retaliatory reasons for their conduct; (3) Plaintiff fails to establish the ...


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