The opinion of the court was delivered by: Hon. Hugh B. Scott
Before the Court is the motion for judgment on the pleadings pursuant
to Federal Rule of Civil Procedure 12(c) (Docket No. 17*fn1
by defendants Bratek, W. Mottl, "Ralph," and Mark Smith, the
remaining defendants in this action (see also Docket No. 4, Order of
June 2, 2011, granting plaintiff in forma pauperis status and
dismissing claims and defendants, including initial defendant Judge
Richard Kloch, hereinafter "IFP Order"). Plaintiff, an inmate in New
York State custody, is proceeding pro se in this action. The parties
consented to proceed before the undersigned on October 28, 2011
(Docket No. 15).
Initially, responses to this motion were due by December 28, 2011, and replies by January 10, 2012 (Docket No. 19). This Court also granted defendants' motion to hold the Scheduling Order (Docket No. 14) in abeyance (Docket No. 19). As noted by defendants (Docket No. 21), the pro se plaintiff did not respond to this motion. This Court then reset briefing for defendants' motion (Docket No. 22) and canceled a status conference in light of this motion (Docket No. 24), but without response from plaintiff. This Court then learned that plaintiff has been relocated to another facility and may not have been at his previously provided address (see text remark, Mar. 14, 2012, Court's version of docket) where prior motions and notices were sent. Given the pro se plaintiff's failure to respond and the apparent lack of notice to him of this motion and briefing schedule, plaintiff was given an opportunity to respond to this motion, with responses due by April 13, 2012, and any reply due by April 23, 2012, and the motion then will be deemed submitted without oral argument unless otherwise determined by the Court upon review of the papers (Docket No. 24). Plaintiff then filed a timely response (Docket Nos. 26, 25 (poor quality copy of No. 26)) and defendants replied (Docket No. 27) and the motion was deemed submitted as of April 23, 2012.
This is a pro se civil rights action under 42 U.S.C. § 1983 in which plaintiff challenges defendants alleged "activation and malicious use of the Sex Offender Registration Act," N.Y. Correct. Law §§ 168, 168-a to 168-w ("SORA"), against him, in violation of his equal protection and due process rights under the Fourteenth Amendment (Docket No. 1, Compl.). He also alleges that defendants violated his First and Fourteenth Amendment rights by compelling plaintiff to live in a sex offender residence, with censorship of his mail, and denial of intimate association with family members (id. at page 1). Plaintiff expressly declares that this Complaint is not a challenge to his state conviction (id. at page 2). Plaintiff was incarcerated at Oneida Correctional Facility ("Oneida"), then released on parole, and then re-incarcerated (id. ¶ 3). Defendant W. Mottl was a correctional counselor at Oneida (id. ¶ 14; but cf. Docket No. 18, Defs. Memo. at 11 n.7 (Mottl is now assigned to Mid-State Correctional Facility)), while defendants Bratek and "Ralph" were parole officers employed in the Buffalo office (Docket No. 1, Compl. ¶¶ 16, 17), and defendant Mark Smith is a parole officer employed at Oneida (id. ¶ 18).
Pertinent to the pending motion, plaintiff alleges that the New York State Supreme Court, Niagara County, was without jurisdiction to conduct a SORA proceeding against him because it was not the "original sentencing court" (id. ¶¶ 20-30; see Docket No. 4, IFP Order, at 2), that Niagara County Court was the proper forum (Docket No. 1, Compl. ¶ 30). Plaintiff claims that various defendant Division of Parole and Department of Correctional Services officials and employees, including remaining defendants "Ralph," Bratek, Smith, and Mottl, delayed his release from prison and, upon his release, compelled him to live at a sex offender residence that required him to pay rent, censored his mail and denied him visitation and the right to intimate association with family members (Docket No. 4, IFP Order at 3). In particular, he alleges that defendant Smith, illegally detained him beyond his April 6, 2009, release date in violation of SORA, N.Y. Correct. Law, § 168-l(8) [cited by plaintiff as § 168.1(8)], and that he informed Judge Kloch and Assistant Public Defender Robert Viola, defendant's trial counsel, of this unlawful detention (Docket No. 1, Complaint ¶¶ 44-46, Ex. 13-15; Docket No. 4, IFP Order at 8). Smith then compelled plaintiff to sign a "special condition" which provided that plaintiff "shall not be released until the board of parole and division of parole are informed of sex offender risk level that has been or will be established by a court . . ." (Docket No. 1, Compl. ¶ 47, Ex. 16; Docket No. 4, IFP Order at 8).
On April 23, 2009, plaintiff was advised by Mottl that he had to sign many documents that he did not have time to read and that if he refused to sign them he would not be released. Plaintiff alleges there were inaccuracies in the documents which he did not notice until he received the documents upon his release from Oneida and that Mottl had falsified information in plaintiff's institutional files in the past. (Docket No. 1, Compl. ¶¶ 56-58, Ex. 24; Docket No. 4, IFP Order at 9.) Plaintiff was released to parole on April 24, 2009. His parole release residence was to be Grace House Ministries, but because he was adjudicated a Level 3 Sex Offender, he could not reside there and he was forced by defendant Parole Officer Bratek to reside at a sex offender residence operated by the Division of Parole. (Docket No. 1, Compl. ¶ 70; Docket No. 4, IFP Order at 9.)
Plaintiff first reported to the Buffalo Parole Office on April 27, 2009, and had to meet with defendant Parole Officer "Ralph," who "has an extreme dislike" for released sex offenders, because his assigned Parole Officer, Bratek, was not available (Docket No. 1, Compl. ¶¶ 59-63; Docket No. 4, IFP Order at 9). "Ralph" compelled plaintiff to sign numerous documents unrelated to his 1980 conviction and imposed conditions on plaintiff--e.g., cannot possess a computer, cannot subscribe to premium cable movie channels, cannot be within 50 feet of stores or other places--that implied that plaintiff was a pedophile, although plaintiff's 1980 conviction did not involve a child. "Ralph" also interfered with plaintiff's ability to address specific medical concerns by compelling plaintiff to attend Mid-Erie Substance Abuse and Sex Offender Program and to use a specific Medical Managed Care Program that provided coverage for Mid-Erie. (Docket No. 1 Compl. ¶ 63; Docket No. 4, IFP Order at 9.)
Plaintiff claims that, while at the sex offender residence, he had to pay rent, no females visitors were allowed and all visitation was precluded after 9:00 pm; it was a "prison-like environment." Plaintiff was forced by the Division of Parole and defendants "Ralph" and Bratek to reside in Buffalo, despite the fact that his crimes had been committed in Niagara Falls, he hailed from Niagara Falls and his family resided in Niagara Falls. (Docket No. 1, Compl. ¶¶ 71-74; Docket No. 4, IFP Order at 9-10.) Plaintiff was later given a 16-month parole violation for having a woman spend the night at his residence; a residence at which he claims he should not have been forced to reside. (Docket No. 1, Compl. ¶¶ 76-77; Docket No. 4, IFP Order at 10.)
Plaintiff seeks a declaratory judgment that each of the defendants conspired to violate his constitutional rights and compensatory and punitive damages for the alleged knowing and willful violation of his constitutional rights to due process, equal protection, and intimate association with family members (see Docket No. 4, IFP Order at 12).
Plaintiff moved for leave to proceed in forma pauperis (Docket No. 2) and this Court granted leave but in doing so dismissed claims against several of the defendants, leaving claims against defendants parole officers "Ralph", Bratek, Mark Smith, and Mottl (Docket No. 4, IFP Order at 15-28). These remaining defendants answered (Docket No. 12).
Defense Motion for Judgment
Moving defendants first argue that plaintiff has not adequately plead a conspiracy (Docket No. 18, Defs. Memo. at 6-7). As for each individual movant, they argue that plaintiff has failed to state a claim against any of them (id. at 7-16).
As for Bratek, plaintiff's allegations do not allege an infringement of a constitutional right or allege sufficient factual basis to support the asserted violation or both (id. at 8).
Plaintiff's placement in the residence was due to the actions of other entities and not Bratek (id.). As a parolee, plaintiff had to adhere to the conditions of his parole including the rules of his residence (id. at 9). Defendants argue that placement of plaintiff in Buffalo, rather than in Niagara Falls or Niagara County generally, was rational and reasonably related to the protection of the community and plaintiff's lawful reintegration into society (id. at 10-11).
As for Mottl, defendants contend that plaintiff has not asserted factual allegations to support a constitutional violation by Mottl and what allegations that were made are conclusory allegations. Mottl merely provided plaintiff with the conditions of his parole without alleging what rights were violated. (Id. at 11-12; Docket No. 27, Defs. Reply Memo. at 2.)
As for defendant "Ralph," defendants argue that plaintiff has not shown that a constitutional violation has occurred (Docket No. 18, Defs. Memo. at 12-13). Even if "Ralph" had an "extreme dislike" of sex offenders, plaintiff did not establish any disparity in the special conditions he received as opposed to a non-sex offender (id. at 13). Defendants next note that plaintiff has not explained how his medical care was interfered with when it was restricted to a specific provider (id. at 13-14).
As for defendant Smith, defendants argue that plaintiff's complaints about the special condition on his sentence that permitted his continued incarceration after April 6, 2009, was not their responsibility. They contend that, while Smith served the special condition upon plaintiff, he was not responsible for imposing it. (Id. at 15.) Defendants deny that plaintiff has alleged a ...