The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge:
On March 24, 2011, pro se Plaintiff Clifton Salvodon ("Salvodon") filed this 42 U.S.C. §§ 1983, and 1985 action, against the State of New York and its authorized agents, the New York State Division of Parole, and the New York State Department of Corrections (collectively, "Defendants") claiming constitutional violations in connection with a criminal sentence he received on April 24, 2001. Salvodon alleges that Defendants violated his constitutional rights by (1) administratively imposing an additional three years of post-release supervision ("PRS") after he served his determinate sentence of five years imprisonment; (2) wrongfully sentencing him to two terms of imprisonment based on alleged violations of the PRS; and (3) conspiring "To Carry This Unlawful Act to Full Term."
On April 7, 2011, the Court referred this case to Magistrate Judge Kevin Nathaniel Fox for general pretrial and dispositive motions. On October 20, 2011, Defendants move to dismiss Salvodon's Complaint pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). On March 26, 2012 Magistrate Judge Fox issued a Report and Recommendation ("R&R"), recommending that the Court grant Defendants' motion to dismiss under the doctrines of sovereign immunity and qualified immunity. Written objections to the R&R were due within 14 days pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b). No objections were filed and no requests for extensions of time to file objections were received.
The Court has reviewed the R&R. For the reasons discussed below, the Court adopts Magistrate Judge Fox's recommendations and grants Defendants' motion to dismiss the Complaint.
Salvodon alleges that on April 24, 2001, the New York State Supreme Court sentenced him on Indictment # 42 49-1999 to a determinate term of five years and an indeterminate term of zero to three years imprisonment, to run concurrently. The sentencing court "did not Order any term of post-release supervision." Upon his release from custody on or about June 18, 2004, he was placed on a three year term of PRS, under the supervision of the New York State Division of Parole. Salvodon contends that this additional restriction on his liberty was cruel and unusual punishment.
On December 30, 2005, Salvodon was sentenced to another term of imprisonment for violation of parole, "until his release on or about 3/24/06." Since he was not sentenced to a term of PRS, Salvodon contends that this additional term of imprisonment was illegal. He alleges that on December 17, 2007, he was sentenced again to another term of ten months for the same violation. Salvodon argues that this violation and sentence were likewise illegal based on the terms of his original sentence. He also asserts that Defendants subjected him to double jeopardy by increasing his sentence illegally after Salvodon completed serving it, and that DOCS and the New York State Division of Parole conspired to violate his rights. He asserts that the New York State Supreme Court terminated his PRS on December 10, 2008.
On October 20, 2011, Defendants filed their motion to dismiss Salvodon's Complaint. Defendants argue that the Department of Correctional Services ("DOCS") and New York State Division of Parole are entitled to claim sovereign immunity under the Eleventh Amendment. Defendants also assert that Salvodon's claims against state officials are barred under the doctrine of qualified immunity, because "[r]easonable officials in defendants' positions would not have known that calculating PRS, as courts, defense counsel, prosecutors . . . and others engaged in the process had done for years, could violate a constitutional right" where "[f]or eight years, the automatic inclusion of PRS was thought legitimate."
Defendants contend that even if due process clearly established that PRS be pronounced at the time of sentencing, their reliance on state law was objectively reasonable. Lastly, Defendants argue that Salvodon fails to allege that any specific individual was personally involved in the alleged constitutional violations.
On March 26, 2012 Magistrate Judge Fox issued an R&R recommending that Defendant's motion to dismiss be granted and that Salvodon's Complaint be dismissed on Eleventh Amendment sovereign immunity grounds, as well as qualified immunity. With respect to Salvodon's double jeopardy claim, Magistrate Judge Fox also found that prior to 2010, it was not clearly established that administratively imposing PRS on an individual who has completed a sentence of imprisonment violated Salvodon's Fifth Amendment right. Lastly, Magistrate Judge Fox found ...