The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
This is an action pursuant to 42 U.S.C. § 1983 in which Plaintiff Ronald Cooper ("Plaintiff") alleges, inter alia, that the defendants violated his federal constitutional rights in connection with his parole supervision. Now before the Court are the following applications: 1) Defendants' motion to dismiss (Docket No. [#13]); 2) Plaintiff's cross-motion [#21] to amend the complaint; and 3) Plaintiff's motion [#32] for the appointment of counsel. For the reasons that follow, Plaintiff's motions are denied, Defendants' motion is granted, and this action is dismissed with prejudice.
In setting forth the factual background of this action, the Court observes that it is limited as to what evidence it can consider in ruling upon a 12(b)(6) motion:
In considering a motion under Fed.R.Civ.P. 12(b)(6) to dismiss a complaint for failure to state a claim on which relief can be granted, the district court is normally required to look only to the allegations on the face of the complaint. If, on such a motion, matters outside the pleading are presented to and not excluded by the court, the court should normally treat the motion as one for summary judgment pursuant to Fed.R.Civ.P. 56. In any event, a ruling on a motion for dismissal pursuant to Rule 12(b)(6) is not an occasion for the court to make findings of fact.
In certain circumstances, the court may permissibly consider documents other than the complaint in ruling on a motion under Rule 12(b)(6). Documents that are attached to the complaint or incorporated in it by reference are deemed part of the pleading and may be considered. In addition, even if not attached or incorporated by reference, a document upon which the complaint solely relies and which is integral to the complaint may be considered by the court in ruling on such a motion.
Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007) (citations and internal quotation marks omitted).*fn1 In the instant case, in deciding the pending motions, the Court will consider a number of documents that, while not part of the Amended Complaint, are arguably incorporated by reference, and were clearly integral to the complaint and relied upon by Plaintiff, including letters that Plaintiff wrote to the Division of Parole, and transcripts of sworn testimony by Plaintiff at the parole revocation hearings described in the Amended Complaint.*fn2 The Court notes that these documents were not available to the Court when it previously reviewed Plaintiff's complaint pursuant to 28 U.S.C. § § 1915(e)(2)(B) and 1915A(a). See, Decision and Order [#8] (Telesca, J., Pro Se Duty Judge). Presumably, if such documents had been available to the Court at that time, it would have dismissed the action, as the Court does now.
In 1982 Plaintiff was convicted of two counts of robbery in the first degree and one count each of criminal possession of a weapon in the second and third degrees, in New York State Supreme Court, Monroe County, for which he was given an indeterminate prison sentence of fifteen to thirty years. See, People v. Cooper, 152 A.D.2d 939, 543 N.Y.S.2d 831 (4th Dept. 1989). In or about December 1996, Plaintiff was paroled. Plaintiff spent the next eight years on parole. While it is not necessarily significant to this case, the Court notes that apparently during that period, Plaintiff requested early termination of parole supervision several times, but his requests were denied because of his continued drug usage. (Docket No. [#15] at 20).
In or about April 2005, while Plaintiff was still on parole, his brother helped him briefly obtain a job as a maintenance worker at the "Charter School of Science" on St. Paul Street in Rochester.*fn3 Plaintiff was terminated from that job after bringing a nude picture of himself to the school and showing it to a female co-worker. According to Plaintiff, he "befriended a female co-worker, who expressed interest in [him]." Amended Complaint at 6. Moreover, [a]s Plaintiff and this co-worker exchanged conversations, she explained to Plaintiff that she was having marital issues with her husband, to which Plaintiff explained that he had a website for 'swinging singles' and invited her to view it. Plaintiff also explained that he had photos of himself, some of which were naked, on this website. She then asked Plaintiff to bring her a photo the next day, to which Plaintiff agreed to. [sic] Plaintiff brought this photo, and after meeting with this woman, and showing her the photo in a private area of the school, she left, and moments later, Plaintiff was summoned to the Vice Principal's Office.
Id. Plaintiff was fired from his job and charged with aggravated harassment. Plaintiff did not notify his parole officer of the incident or his arrest, and as a result he was charged with a parole violation. Id. at 7 ("[I] was taken into custody by Parole Officers for allegedly violating rules and regulations mainly for not notifying [my] parole officer of the arrest."). Plaintiff pled guilty to aggravated harassment and received a sentence of time served. On June 24, 2005, Plaintiff was released from jail and restored to parole supervision.
As a condition of his restoration to parole supervision, Plaintiff was required to report to Monroe County's Day Reporting Center each day, and to obtain passes to allow him to go on job interviews. Id. at 8. Defendant Gina Pritchett ("Pritchett") was the Director of the Day Reporting Center. In addition to having to report to the Day Reporting Center, Plaintiff's parole officer, Defendant Amy Cummiskey ("Cummiskey"), also set additional special conditions of release, which Plaintiff describes as "2 full pages of Special Conditions that were tantamount to Plaintiff being classified as a sex offender." Id. For example, Plaintiff could not have a vehicle, cell phone, pager, or computer. (Docket [#15] at 3-4). Additionally, the special conditions required Plaintiff to have a psychological evaluation and to undergo sex offender counseling at the Evelyn Brandon Health Center ("Evelyn Brandon"). Plaintiff objected to the special conditions in general, but signed them in order to remain on parole. (Docket No. [#15] at 27: "I didn't think they [the conditions] fit me, but I accepted it."). Notably, though, Plaintiff testified at a subsequent parole revocation hearing that he had no objection to attending psychological counseling at Evelyn Brandon. (Docket No. [#15] at 44: "I had no problem, no problem attending Evelyn Brandon."; see also, id.: "And as far as going to Evelyn Brandon, I have no problems with that."). Plaintiff further testified that while he did not agree with the conditions, he understood why they were imposed:
Q. [Hearing Officer]: And the conditions basically require you to take part in an exploratory process to determine what issues you might have?
Q. [Hearing Officer]: Correct?
A. [Plaintiff]: Yes, amongst some other things, for instance, I can't pick up a hitchhiker without first contacting my parole officer. I can't be outside a pornographic -- I mean, these are things I don't do anyway but [I] think they're ridiculous.
Q. [Hearing Officer]: You might think so but you understand the logic from [the] parole officer's perspective?
A. [Plaintiff]: Sure, sure. . . . . (Docket No. [#15] at 44. Plaintiff also testified that he understood that the "sex offender" special conditions were imposed because he had shown the photo of himself to his female co-worker. See, id.
Subsequent to Plaintiff being reinstated to parole, Cummiskey made a visit to Plaintiff's apartment, during which Plaintiff walked past her in the nude. In that regard, at a subsequent parole revocation hearing, Plaintiff testified under oath that he was nude in his apartment, and that while in Cummiskey's presence, he walked out his bathroom with his hands covering his genitals, even though there were towels in the bathroom which he could have used to wrap around himself. (Docket No. [#15] at 35-36: "I was naked. I admit, I sleep nude. . . . I assumed she stepped out into the hallway. . . . I put my hands over my private parts because I didn't know if she was still standing there."; id at 43: "Yes, the towels were handing right there but it would have been the same if I had walked out with a towel wrapped around [me]."). Plaintiff also testified that his underwear was in another part of ...