The opinion of the court was delivered by: John Gleeson, United States District Judge:
FOR ONLINE PUBLICATION ONLY
Rafael Pantoja brings this pro se action against the New York State Department of Corrections and Community Supervision ("DOCCS"), sued herein as the New York State Division and Board of Parole. His amended complaint, liberally construed, raises claims under 42 U.S.C. § 1983 and 28 U.S.C. §§ 2241 and 2254. For the reasons stated herein, I dismiss the amended complaint, except to the extent it constitutes a collateral attack under § 2254 on Pantoja's underlying conviction, and to that extent only the case is transferred to the U.S. District Court for the Southern District of New York.
After entering a plea of guilty to Grand Larceny in the First and Second Degrees in the County Court of the State of New York for the County of Westchester, Pantoja was sentenced to four and a half to nine years of incarceration on March 14, 2008. On direct appeal, Pantoja's counsel submitted a brief in accordance with Anders v. California, 386 U.S. 738 (1967), asserting that no non-frivolous issues could be raised. Meanwhile, on April 1, 2008 Pantoja was indicted in this district, and he subsequently pled guilty to conspiring to commit bank fraud. He is currently awaiting sentencing before Judge Brian M. Cogan.
On February 8, 2011 Pantoja appeared for an interview before the New York State Parole Board (the "Board") to request release on parole. The Board denied his request in a Release Decision Notice dated February 9, 2011.*fn1 Pantoja remains incarcerated, currently in the Metropolitan Detention Center in Brooklyn.
On June 15, 2011, Pantoja filed a complaint in this case, styled as a suit under the Declaratory Judgment Act ("DJA"), 28 U.S.C. § 2201, seeking a declaration that his parole proceedings were unlawful. Without requesting or receiving leave to amend his complaint, on September 21, 2011 Pantoja filed an amended complaint in which he raised the same claims for declaratory relief and also petitioned for habeas corpus relief under 28 U.S.C. § 2254.
With respect to his claims for declaratory relief, Pantoja alleges that the Board acted unlawfully when it denied him parole because the Board refused to consider Pantoja's unique circumstances, inappropriately weighed the statutory factors under New York Executive Law § 259-i(2)(c)(A) and Title 9 of the Codes, Rules and Regulations of the State of New York § 8002.3(a)(3), acted arbitrarily and capriciously, violated a plea agreement he had with the government in his pending federal case (a copy of which has not been provided to the Court) and failed to mention the agreement in its written parole determination, failed to consider that he had only spent two months of his state sentence in state custody and would return to federal custody if granted parole, and made its decision without a three-member quorum present.
Pantoja attacks his underlying conviction by charging that the government inappropriately "switched" the identity of the "victim" of his alleged crimes. The nature of this challenge is not clear to me, but Pantoja explained at oral argument that he has advanced the argument to some extent in two post-conviction challenges in state court and may pursue a third such effort in order to fully exhaust his claims.
On October 19, 2011 DOCCS filed a letter suggesting that the Court dismiss the action sua sponte. The Court declined to do so, and DOCCS now moves to dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure.
A. Claims Under the Declaratory Judgment Act
As described above, Pantoja styles several of his claims as claims under the DJA. However, it is well established that the DJA does not expand the subject matter jurisdiction of the federal courts. Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671-72 (1950); PDK Labs, Inc. v. Friedlander, 103 F.3d 1105, 1110 (2d Cir. 1997). Thus the DJA standing alone provides no cause of action or source of jurisdiction upon which Pantoja may rely.*fn2
In light of our obligation to liberally read pro se complaints, McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999), I may construe Pantoja's amended complaint to raise claims under 42 U.S.C § 1983 and invoke federal question jurisdiction pursuant to 28 U.S.C. § 1331. Alternatively, in light of the principle that § 1983 claims that "challenge 'the fact or duration of . . . confinement'" are unavailable and must instead be asserted in a habeas petition, Wilkinson v. Dotson, 544 U.S. 74, 78 (2005) (quoting Preiser v. ...