The opinion of the court was delivered by: Pitman, United States Magistrate Judge:
REPORT AND RECOMMENDATION
TO THE HONORABLE PAUL A. CROTTY, United States District Judge,
In an Amended Complaint filed on April 22, 2010 (Docket Item 4), plaintiff Thomas Henderson, pro se, brings this action for damages pursuant to 42 U.S.C. § 1983 against Brian Fischer and Anthony J. Annucci, the current Commissioner and Deputy Commissioner of the New York State Department of Corrections and Community Supervision ("DOCS"), respectively, Glenn S. Goord, a former DOCS Commissioner, and Lucien J. LeClaire, Jr., a former acting DOCS Commissioner. Plaintiff challenges the imposition and enforcement of a term of post-release supervision ("PRS") by DOCS and its employees. Specifically, plaintiff claims that by "implementing, promulgating, and enforcing and/or effectuating a policy, practice, and custom pursuant to which plaintiff was subject to PRS when imposition of PRS on him was never authorized by any sentencing court, defendants have deprived [him of his] rights guaranteed by the Fourteenth Amendment of the United States Constitution [and] [d]efendants also conspired among themselves to do so" (Attachment to Amended Complaint ("Amend. Compl. Att."), at ¶ 24). The defendants have moved to dismiss the Complaint for failure to state a claim, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (Docket Item 20).
For the reasons set forth below, I respectfully recommend that the defendants' motion to dismiss be granted.
A. Plaintiff's Allegations*fn1
On June 13, 2000, plaintiff was convicted in the County Court, Criminal Term, for the County of Rensselaer, New York (McGrath, J.), upon a plea of guilty, to assault in the second degree (Amend. Compl. Att. at 2-3). Plaintiff was sentenced on June 27, 2000, to a determinate term of imprisonment of two and one-half years. During his sentencing, the Court did not impose a term of PRS to follow his determinate sentence --- although such a term was mandated by New York Penal Law Section 70.45 --- nor did an initial "Sentence and Commitment" report reflect the imposition of the mandatory term of PRS (Amend. Compl. Att. at 3; Exhibit A, A2, B annexed to Affirmation in Opposition to Motion, dated Dec. 15, 2010 ("Aff. in Opp.") (Docket Item 27)). Plaintiff alleges that only after he was taken into custody by DOCS did he receive a "Time Computation Sheet" which informed him that a three-year period of PRS would follow his incarceration (Amend. Compl. Att. at 3).
Plaintiff alleges that he was released from custody on June 11, 2002 after having served six-sevenths of his determinate sentence and began serving a period of PRS (Amend. Compl. Att. at 3). On August 13, 2002, plaintiff was arrested for assault. Plaintiff told the arresting officers that he was Robert D.J. Henderson, his brother, and he subsequently signed a fingerprint card with that name. People v. Henderson, 22 A.D.3d 883, 884, 802 N.Y.S.2d 536, 537 (3d Dep't 2005). Consequently, plaintiff was indicted and charged with two counts of forgery in the second degree, and his parole officer charged him with multiple violations of the conditions of his PRS (Amend. Compl. Att. at 3). Following a parole hearing held in October of 2002, plaintiff was sentenced to a thirty-six month term of imprisonment for violating the conditions of his PRS; he was incarcerated pursuant to that sentence until he was found guilty of the two counts of forgery in the second degree and was sentenced on January 9, 2004 to concurrent indeterminate terms of imprisonment of three and one-half to seven years (Amend. Compl. Att. at 3). Thereafter, according to plaintiff, the remainder of plaintiff's sentence for violating the conditions of his PRS was added to the sentence he received for the forgery charges and plaintiff is currently serving that sentence (Amend. Compl. Att. at 3).*fn2 Although plaintiff is currently incarcerated, it is unclear whether he is currently incarcerated for violating the terms of his PRS or for one of his subsequent convictions. The DOCS Inmate Information website indicates that plaintiff is currently incarcerated for the subsequent convictions. See http://nysdoccslookup.doccs.ny.gov/ GCA00P00/WIQ1/WINQ000.
On August 12, 2008, following a letter from DOCS, dated June 7, 2008 (Exhibit C to Aff. in Opp.), informing the Rensselaer County Court that the New York Court of Appeals had held that the administrative imposition of a term of PRS was illegal, plaintiff was resentenced on the 2000 assault charges, to a term of two and one-half years imprisonment, as originally sentenced, without a term of PRS (Amend. Compl. Att. at 3; Exhibit D to Aff. in Opp.).
Plaintiff also alleges that despite raising the issue numerous times with the parole board, parole board members, prison staff, and correctional counselors and after filing and appealing a grievance, numbered 46025-09, "defendants have chosen to continue to ignore plaintiff's request to either be credited with time spent in custody on [a violation of the conditions of administratively imposed PRS] 'or' mon[e]tary damages for imprisonment on alleged allegations of violating PRS when PRS was never a part of a valid judicially imposed sentence in the [f]irst place" (Amend. Compl. Att. at 2, 3-4).
Plaintiff alleges that, during their tenure as high-level officials at DOCS, the defendants were "responsible for the appointment, training, supervision, and conduct of all DOCS personnel [and] for enforcing the rules of DOCS and ensuring that DOCS personnel obey the Constitution and laws of the United States [and were] policy-maker[s] with respect to DOC's decisions to administratively impose PRS" (Amend. Compl. Att. at 5). Plaintiff further alleges that "[i]n flat defiance of the clear constitutional commands of [Hill v. United States ex. rel. Wampler, 298 U.S. 460 (1936) and Earley v. Murray, 451 F.3d 71 (2d Cir. 2006),] defendants have promulgated, implemented, enforced, and/or failed to rectify a policy, practice and custom mandating the administrative imposition and enforcement of PRS on plaintiff without authorization from [the] sentencing court," "impos[ed] illegal and onerous supervision," and "imprisoned plaintiff . . . who was accused of violating PRS conditions on August 12, 2002 for being charged with [a] felony" (Amend. Compl. Att. at 1-2, 6). "As a direct result . . . plaintiff has suffered actual damages in forms involving . . . mental anguish, pain and suffering" (Amend. Compl. Att. at 6).
Plaintiff seeks "a judgment declaring that defendants have committed the violations of the law alleged in this action," "[a]n order preliminar[ily] and permanently enjoining and directing defendants Fischer and [A]nnucci to lift all effects of PRS," compensatory and punitive damages, costs, and attorneys fees (Amend. Compl. Att. at 7-8).
A. Standards Applicable to a Motion to Dismiss Pursuant to Rule 12(b)(6)
The standards applicable to a motion to dismiss pursuant to Rule 12(b)(6) are well-settled and require only brief review.
When deciding a motion to dismiss under Rule 12(b)(6), [the court] must accept as true all well-pleaded factual allegations of the complaint and draw all inferences in favor of the pleader. See City of Los Angeles v. Preferred Communications, Inc., 476 U.S. 488, 493, 106 S.Ct. 2034, 90 L.Ed.2d 480 (1986); Miree v. DeKalb County, 433 U.S. 25, 27 n.2, 97 S.Ct. 2490, 53 L.Ed.2d 557 (1977) (referring to "well-pleaded allegations"); Mills v. Polar Molecular Corp., 12 F.3d 1170, 1174 (2d Cir. 1993). "'[T]he complaint is deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference.'" Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995) (quoting Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991)). The Court also may consider "matters of which judicial notice may be taken." Leonard T. v. Israel Discount Bank of New York, 199 F.3d 99, 107 (2d Cir. 1999) (citing Allen v. WestPoint-Pepperill, Inc., 945 F.2d 40, 44 (2d Cir. 1991)). In order to avoid dismissal, a plaintiff must do more than plead mere "[c]onclusory allegations or legal conclusions masquerading as factual conclusions." Gebhardt v. Allspect, Inc., 96 F. Supp. 2d 331, 333 (S.D.N.Y. 2000) (quoting 2 James Wm. Moore, Moore's Federal Practice ¶ 12.34[a][b] (3d ed. 1997)).
Hoffenberg v. Bodell, 01 Civ. 9729 (LAP), 2002 WL 31163871 at *3 (S.D.N.Y. Sept. 30, 2002) (Preska, D.J.); see also In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir. 2007); Johnson & Johnson v. Guidant Corp., 525 F. Supp. 2d ...