The opinion of the court was delivered by: Scullin, Senior Judge
MEMORANDUM-DECISION AND ORDER
Currently before the Court are Magistrate Judge Lowe's January 26, 2010 Report-Recommendation and Order and Plaintiff's objections thereto. See Dkt. Nos. 82, 86.
In this action, that Plaintiff filed pursuant to 42 U.S.C. § 1983, Plaintiff alleges, among other things, that Defendants George E. Pataki, Elliot Spitzer, Anthony Ellis, and Robert Dennison ("Defendants") violated his civil rights by denying him parole pursuant to an unwritten state-wide policy.*fn1 Defendants moved to dismiss the claims against them for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiff opposed that motion.
Plaintiff's claims against Defendants arise from the denial of parole in 2004 and 2006. Specifically, Plaintiff alleges that Defendant Pataki, by instituting an unwritten policy of denying parole to violent offenders based solely on the facts of the commitment offense, deprived him of his rights to due process, equal protection, access to the courts, freedom from cruel and unusual punishment and to petition the government. He claims that Defendant Ellis took too long to affirm the denial of parole and failed to respond to a letter. Finally, he contends that Defendant Dennison failed to respond to a letter regarding the denial of parole. After reviewing all of Plaintiff's claims, Magistrate Judge Lowe recommended that the Court grant Defendants' motion to dismiss without leave to amend. See Report-Recommendation and Order at 14. Plaintiff filed timely objections to these findings and recommendation. See Dkt. No. 86.
A. Plaintiff's due Process Claim
Magistrate Judge Lowe analyzed Plaintiff's due process claim and found that, because "a decision based solely on an inmate's conviction offense is not arbitrary... [Plaintiff's] complaint [did] not allege facts plausibly suggesting that Defendants acted arbitrarily[.]" See Report-Recommendation and Order at 9. Therefore, he recommended that the Court grant Defendants' motion and dismiss Plaintiff's due process claim. See id.
Plaintiff objects to Magistrate Judge Lowe's findings regarding his due process claim on several grounds. First, he argues that Defendants violated his procedural due process rights by using and enforcing unlawful and incorrect procedures when they denied him parole. See Plaintiff's Objections at ¶ 7. Second, he asserts that Defendants violated his substantive due process rights, arguing that § 8002.3(b) of Title 9 of New York Codes, Rules and Regulations creates a liberty interest. See id. at ¶ 31. Finally, he contends that, even if Magistrate Judge Lowe did not recognize that prisoners enjoy a due process right under the parole scheme set forth in New York Executive Law § 259-i, prisoners do have a limited due process right not to be denied parole arbitrarily or capriciously, on the basis of a protected classification or on an irrational distinction. See id. at ¶ 45.
In light of Plaintiff's specific objections, the Court has reviewed the record de novo. Having done so, it finds, as did Magistrate Judge Lowe, that Plaintiff has failed to state a due process claim. Accordingly, the Court accepts Magistrate Judge Lowe's recommendation and grants Defendants' motion to dismiss this claim.
B. Plaintiff's Equal Protection Claim
Plaintiff alleges that Defendant Pataki violated his right to equal protection by instituting a policy mandating the denial of parole for all violent offenders. Magistrate Judge Lowe found that "[t]he rational basis for a distinction between violent and nonviolent offenders is 'obvious: preventing the early release of potentially violent inmates.'" See Report-Recommendation and Order at 9 (quotation and other citation omitted). Therefore, he recommended that the Court dismiss this claim.
In his objections, Plaintiff asserts that, because he is a "class of one," he has an equal protection claim. See Plaintiff's Objections at ¶ 70. In support of this position, Plaintiff argues that his do-defendant (Mr. Orlando Rosario) was convicted of the crime of murder in the second degree and was paroled after serving only eighteen years, whereas Defendants ...