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Michael Marcus v. New York State Division of Parole

September 26, 2011

MICHAEL MARCUS, PLAINTIFF,
v.
NEW YORK STATE DIVISION OF PAROLE, CEDRICK BUSH, SUPERVISOR PAROLE OFFICER, IN HIS OFFICIAL AND INDIVIDUAL CAPACITY, BURNS, PAROLE OFFICER IN HIS OFFICIAL AND INDIVIDUAL CAPACITY, SPENCE, PAROLE OFFICER IN HIS OFFICIAL AND INDIVIDUAL CAPACITY, DEFENDANTS.



The opinion of the court was delivered by: Seybert, District Judge:

ORDER

On August 2, 2011, incarcerated pro se plaintiff Michael Marcus ("Plaintiff") filed a Complaint in this Court pursuant to 42 U.S.C. § 1983 against the New York State Division of Parole and Parole Officers Bush, Burns and Spence (collectively, "Defendants"). Accompanying the Complaint is an application to proceed in forma pauperis. Plaintiff's request for permission to proceed in forma pauperis is GRANTED and the Court orders service of the Complaint without prepayment of the filing fee on Defendants Bush and Spence in their individual capacities. However, for the reasons that follow, the Complaint is sua sponte dismissed as against Defendant New York State Division of Parole and the individual parole officers sued in their official capacities as well as against Defendant Burns in his individual capacity.

BACKGROUND

According to the Complaint, on January 16, 2002, Plaintiff pled guilty to Robbery in the Third Degree, P.L. § 160.15, and was sentenced to a term of incarceration of thirty (30) months to five (5) years. (Compl. at page 2). Plaintiff alleges that he was conditionally released to New York State Division of Parole on June 26, 2006. (Id.). On August 13, 2006, Plaintiff explains that he violated parole and was re-incarcerated until his March 14, 2008 release to the supervision of the New York State Division of Parole. (Id. at pages 2-3). Plaintiff describes that he had been reporting to Defendant Burns without incident until August 18, 2009. (Id. at page 3). On that date, Plaintiff alleges that upon his arrival at the Division of Parole in Hempstead, New York, for his scheduled visit, he was advised that Defendant Burns would not see Plaintiff that day and, instead, Burns' partner, Defendant Spence, would meet with Plaintiff. (Id.). Plaintiff alleges that Defendant Spence escorted Plaintiff to a "cubicle office" where he ordered Plaintiff to empty his pockets and place his hands on the wall. (Id.). Plaintiff complied and was then "pat frisked" by Defendant Spence. (Id.). Plaintiff claims that he asked Defendant Spence "if anything was wrong" and Defendant Spence responded "no." (Id.). Nonetheless, Defendant Spence is alleged to have then handcuffed Plaintiff's hands behind his back. Plaintiff claims that Defendant Spence advised Plaintiff that Plaintiff was not under arrest and that he was not in violation of parole. Plaintiff claims that he was then placed in a holding cell and was handcuffed to a bench railing. (Id. at page 4). Plaintiff alleges that Defendant "Supervisor Parole Officer" Bush then spoke with Plaintiff and advised Plaintiff that police officers from the N.Y.P.D. 105th precinct were on their way over to speak with Plaintiff. (Id.). Plaintiff claims that shortly thereafter he was transported to the N.Y.P.D. 105th precinct and placed in a line-up identification that resulted in his arrest and arraignment on various, unspecified criminal charges. (Id.).

As a result of the foregoing, Plaintiff claims pursuant to Section 1983 that his due process rights were violated as well as his right to be free from unreasonable searches and seizures. (Id. at page 7). Plaintiff further claims that he was arrested without probable cause or a warrant in violation of his Fourth Amendment rights. (Id.). Plaintiff also claims that his Eighth Amendment right to be free from cruel and unusual punishment was violated because he was denied access to a telephone, food and the bathroom during his detention by the New York State Division of Parole and its employees. As a result, Plaintiff seeks an award of of $500,000.00. (Id. at page 9).

DISCUSSION

I. In Forma Pauperis

Having reviewed Plaintiff's declaration in support of his application to proceed in forma pauperis, the Court finds that he is qualified to commence this action without prepayment of the filing fees. See 28 U.S.C. § 1915(a)(1). Accordingly, Plaintiff's request for permission to proceed in forma pauperis is GRANTED.

II. Application of the Prison Litigation Reform Act The Prison Litigation Reform Act, codified at 28 U.S.C. § 1915, requires a district court to dismiss an in forma pauperis complaint if the action is frivolous or malicious; fails to state a claim on which relief may be granted; or seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2)(B)(i-iii); 28 U.S.C. § 1915A(b); Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). The Court is required to dismiss the action as soon as it makes such a determination. 28 U.S.C. § 1915A(a).

It is axiomatic that pro se complaints are held to less stringent standards than pleadings drafted by attorneys and the Court is required to read the Plaintiff's pro se Complaint liberally and interpret it raising the strongest arguments it suggests. Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 167 L. Ed. 2d 1081 (2007); Hughes v. Rowe, 449 U.S. 5, 9, 101 S. Ct. 173, 66 L. Ed. 2d 163 (1980); Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006); McEachin v. McGuinnis, 357 F.3d 197, 200 (2d. Cir. 2004) ("[W]hen the plaintiff proceeds pro se, . . . a court is obliged to construe his pleadings liberally, particularly when they allege civil rights violations."). Moreover, at this stage of the proceeding, the Court assumes the truth of the allegations in the Complaint. See Hughes, 449 U.S. at 10; Koppel v. 4987 Corp., 167 F.3d 125, 127 (2d Cir. 1999).

III. Section 1983

Section 1983 provides that [e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured.

42 U.S.C. § 1983. To state a claim under Section 1983, a plaintiff must "allege that (1) the challenged conduct was attributable at least in part to a person who was acting under color of state law and (2) the conduct deprived the plaintiff of a right guaranteed under the Constitution of the United States." Rae v. County of Suffolk, No. 07-CV-2138 (RRM)(ARL), 2010 WL 768720, at *4 (E.D.N.Y. Mar. 5, 2010) (quoting Snider v. Dylag, 188 F.3d 51, 53 (2d Cir. 1999)). Section 1983 does not create a substantive right; rather, to recover, a plaintiff must establish the deprivation of a separate, federal right. See Thomas v. Roach, 165 F.3d 137, 142 (2d Cir. 1999).

In addition, in order to state a claim for relief under Section 1983 against an individual defendant, a plaintiff must allege the personal involvement of the defendant in the alleged constitutional deprivation. Farid v. Ellen, 593 F.3d 233, 249 (2d Cir. 2010). The Supreme Court held in Ashcroft v. Iqbal, __ U.S. __, 129 S. Ct. 1937, 1948, 173 L. Ed. 2d 868 (2009) that "[b]ecause vicarious liability is inapplicable to . . . [section] 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Id. Thus, a plaintiff asserting a Section 1983 claim against a supervisory official in his individual capacity must sufficiently plead that the supervisor was personally involved in the constitutional deprivation. Rivera v. Fischer, 655 F. Supp. 2d 235, 237 (W.D.N.Y. 2009). A complaint based upon a violation under Section ...


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