The opinion of the court was delivered by: John T. Curtin United States District Judge
This case has been transferred to the undersigned for all further proceedings. Plaintiff Lamont Walker, an inmate incarcerated under the custody and care of the Commissioner of the New York State Department of Correctional Services ("DOCS"),*fn1 brought this action pro se pursuant to 42 U.S.C. § 1983 against certain employees (or former employees) of the New York State Division of Parole ("DOP"). Plaintiff claims that he is being unlawfully detained in prison beyond his release date. Pending for the court's determination are the parties' cross-motions for summary judgment.
For the reasons that follow, plaintiff's motion for summary judgment is denied, and defendant's motion for summary judgment is granted.
The court's docket reflects that plaintiff is currently housed at Orleans Correctional Facility, maintained by DOCS. Plaintiff was originally received into custody in August 1994 to serve an indeterminate term of 10 to 20 years upon conviction of the underlying offenses of Rape, 1st degree and Robbery, 1st degree. He was classified by the sentencing court as a "Level 3" sex offender. See Item 50 (Deft. Statement of Undisputed Facts), ¶¶ 7-9; Item 54 (Mattingly Decl.), ¶¶ 4-6.
Plaintiff was released to parole supervision on June 26, 2003, and resided with his aunt, Geraldine Cox, in Monticello, New York, but was returned to DOCS' custody in January 2005 upon a plea of guilty to a parole violation. He was re-released to parole supervision in October 2005, and resided in Niagara County with his girlfriend, Daphne Ward. Plaintiff married Ms. Ward in May 2007, and they have two young children. On February 28, 2008, plaintiff was again found guilty of violating the conditions of his release, and he was returned to DOCS' custody as a persistent parole violator. He became eligible for release on July 31, 2009. Item 50, ¶¶ 10-20; Item 54, ¶¶ 7-12.
In May 2009, plaintiff was interviewed by Lisa Hoy, the Facility Parole Officer at the Mid-State Correctional Facility where plaintiff was then housed. During the interview, plaintiff informed Officer Hoy that he wanted to reside in Niagara County in order to be close to his wife and children. Officer Hoy prepared a "Release Decision Notice," dated May 11, 2009, which detailed nineteen conditions of release. See Item 52, pp. 11-13. She then forwarded plaintiff's file to the Niagara Frontier Parole Office, where it was assigned to Parole Officer Susanna Mattingly. Officer Mattingly conducted an investigation into possible Niagara County residences for plaintiff upon his release, and reported the following results of her investigation in a July 20, 2009 memorandum to her Bureau Chief, Philip Overfield:
1. There is no homeless program in Niagara County which will take a sex offender.
2. There is no shelter program in Niagara County which will take a sex offender.
3. Requested (Mid-State) facility re-interview subject to determine if there is any proposed address and he had none.
4. The boarding house that was used for undomiciled sex offenders in the city of Niagara Falls is no longer available due to requirements outlined by the city of Niagara Falls.
5. Contact was made with his aunt who lives in Monticello, New York but she refused to take him stating that her grandchildren come to see her and she "cannot deny the rest of the family".
6. There is no shelter program available for sex offenders in Albany County which is the county his aunt had lived in and the county where the subject had lived for a period of time while on Parole.
7. Contact was made with his estranged wife and she is not interested in continuing a relationship with the subject and is expected to file for a divorce. (It is believed that there was domestic violence involved in the relationship).
8. Contact [was] made with his estranged in-laws and they had no housing suggestions.
The subject remains undomiciled. It is requested that the residency condition be imposed upon the subject.
Bureau Chief Overfield concurred with Officer Mattingly's request, and the file was forwarded for further review by the Regional Director, the Central Office Sex Offender Management Unit, and the Board of Parole. As a result, on July 27, 2009, Parole Commissioner Thomas P. Grant e-mailed ...