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Peter Graziano, James Buckley, Mark Malone, Robert A. Harris v. George E. Pataki

August 3, 2012

PETER GRAZIANO, JAMES BUCKLEY, MARK MALONE, ROBERT A. HARRIS, WILLIAM WALKER, AARON TALLEY, MAURICE MURRELL, STEVEN HO, AND BRIAN JACQUES, SUING ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS-APPELLANTS,
v.
GEORGE E. PATAKI, GOVERNOR OF THE STATE OF NEW YORK, ROBERT DENNISON, CHAIRMAN OF THE NEW YORK STATE DIVISION OF PAROLE, AND THE NEW YORK STATE DIVISION OF PAROLE, DEFENDANTS-APPELLEES.



Appeal from a December 16, 2010 judgment of the United States District Court for the Southern District of New York (Seibel, J.) granting defendants' renewed motion to dismiss plaintiffs' class action for failure to state a claim.

Per curiam.

11-116-pr

Graziano v. Pataki

Argued: March 8, 2012

Before KATZMANN and WESLEY, Circuit Judges, and UNDERHILL, District Judge.*fn1

We hold that plaintiffs have failed to state a claim for violation of their federal constitutional rights under either the Fourteenth Amendment or the Ex Post Facto Clause. AFFIRMED.

Underhill, District Judge, filed a separate opinion dissenting.

Plaintiffs-Appellants Peter Graziano, James Buckley, Mark Malone, Robert A. Harris, William Walker, Aaron Talley, Maurice Murrell, Steven Ho, and Brian Jacques (collectively, "Plaintiffs") filed this class action against Defendants-Appellees George Pataki, the Governor of the State of New York; Robert Dennison, the Chairman of the New York State Division of Parole; and the New York State Division of Parole (collectively, "Defendants") on behalf of themselves and all other New York State prisoners convicted of violent felony offenses. Plaintiffs allege that they have been denied parole as a result of an "unwritten policy" to deny parole to violent felony offenders, and that this unofficial policy violates three provisions of the federal constitution: (1) the Due Process Clause of the Fourteenth Amendment; (2) the Equal Protection Clause of the Fourteenth Amendment; and (3) the Ex Post Facto Clause. Because we conclude that Plaintiffs have failed to state a claim for violation of their rights under any of these provisions, we affirm the December 10, 2010 judgment of the United States District Court for the Southern District of New York granting Defendants' motion to dismiss Plaintiffs' complaint pursuant to Rule 12(c) of the Federal Rule of Civil Procedure.

New York's parole system is administered by the Board of Parole (the "Board"). See New York State Executive Law §§ 259, 259-b. The Board's authority to grant parole release is governed by Executive Law § 259-i, which provides, in relevant part:

Discretionary release on parole shall not be granted merely as a reward for good conduct or efficient performance of duties while confined but after considering if there is a reasonable probability that, if such inmate is released, he will live and remain at liberty without violating the law, and that his release is not incompatible with the welfare of society and will not so deprecate the seriousness of his crime as to undermine respect for law. In making the parole release decision, the procedures adopted pursuant to subdivision four of section two hundred fifty-nine-c of this article shall require that the following be considered: (i) the institutional record including program goals and accomplishments, academic achievements, vocational education, training or work assignments, therapy and interactions with staff and inmates; (ii) performance, if any, as a participant in a temporary release program; (iii) release plans including community resources, employment, education and training and support services available to the inmate; (iv) any deportation order issued by the federal government against the inmate while in the custody of the department and any recommendation regarding deportation made by the commissioner of the department pursuant to section one hundred forty-seven of the correction law; (v) any statement made to the board by the crime victim or the victim's representative, where the crime victim is deceased or is mentally or physically incapacitated; (vi) the length of the determinate sentence to which the inmate would be subject had he or she received a sentence pursuant to section 70.70 or section 70.71 of the penal law for a felony defined in article two hundred twenty or article two hundred twenty-one of the penal law; (vii) the seriousness of the offense with due consideration to the type of sentence, length of sentence and recommendations of the sentencing court, the district attorney, the attorney for the inmate, the presentence probation report as well as consideration of any mitigating and aggravating factors, and activities following arrest prior to confinement; and (viii) prior criminal record, including the nature and pattern of offenses, adjustment to any previous probation or parole supervision and institutional confinement. § 259-i(2)(c)(A) (emphasis added). "While consideration of these guidelines is mandatory, the ultimate decision to parole a prisoner is discretionary." Silmon v. Travis, 95 N.Y.2d 470, 477 (2000). In addition, although the Board "must provide the inmate with a proper hearing in which only the relevant guidelines are considered," it "need not expressly discuss each of these guidelines in its determination." King v. N.Y. State Div. of Parole, 83 N.Y.2d 788, 791 (1994).

An inmate who objects to a parole denial may file an administrative appeal with the Board's Appeals Unit, see Executive Law § 259-i(4)(a); 9 N.Y.C.R.R. §§ 8006.1(a), 8006.4(a), and an inmate may challenge the Appeals Unit's decision in New York state court by filing a petition under Article 78 of New York's Civil Practice Law and Rules, see, e.g., Garcia v. N.Y. State Div. of Parole, 657 N.Y.S.2d 415 (N.Y. App. Div. 1997).

The named plaintiffs represent a class of prisoners who (1) were convicted of A-1 violent felony offenses, such as murder; (2) have served the minimum terms of their indeterminate sentences and are therefore eligible for parole release; and (3) have had their most recent applications for parole release denied by the Board because of the seriousness of the underlying offense. See Graziano v. Pataki, No. 06 Civ. 480 (CLB), 2007 U.S. Dist. LEXIS 89737, at *5 (S.D.N.Y. Dec. 5, 2007). Their complaint alleges that defendant George Pataki, who was Governor of New York from 1995 to 2006, adopted an unwritten policy to deny parole to violent felony offenders solely because of the violent nature of their offenses and "without any meaningful consideration or balancing of any other relevant or statutorily mandated factors." First Amended Compl. ¶ 21. This "unofficial policy" assertedly led to a drop in the release rates for violent offenders, from a high of 28% in 1993-94 to a low of 3% in 2000-01.*fn2 See First Amended Compl. & Attach; see also Pls.' Br. 11. Plaintiffs maintain that this alleged policy constitutes "a violation of due process and equal protection and is an unconstitutional ex post facto enhancement" of the class members' sentences, and seek declaratory relief and a permanent injunction requiring Defendants to make parole determinations "in accordance with the mandates of, and solely for the purposes underlying, N.Y.S. Executive Law § 259-i." Id. ¶¶ 2, 19-21.

We review a judgment under Federal Rule of Civil Procedure 12(c) de novo, accepting the complaint's factual allegations as true and drawing all reasonable inferences in the plaintiff's favor. See Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010). To survive a Rule 12(c) motion, the complaint must contain sufficient factual matter to "state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). We turn first to Plaintiffs' due process claim. "The Fourteenth Amendment's Due Process Clause protects persons against deprivations of life, liberty, or property; and those who seek to invoke its procedural protection must establish that one of these interests is at stake." Wilkinson v. Austin, 545 U.S. 209, 221 (2005). "In order for a state prisoner to have an interest in parole that is protected by the Due Process Clause, he must have a legitimate expectancy of release that is grounded in the state's statutory scheme." Barna v. Travis, 239 F.3d 169, 170 (2d Cir. 2001) (per curiam). We have squarely held that because the New York parole scheme is not one that creates a legitimate expectancy of release, "[prisoners] have no liberty interest in parole, and the protections of the Due Process Clause are inapplicable." Id. at 171; see also id. ("Neither the mere possibility of release, nor a statistical probability of release, gives rise to a legitimate expectancy of release on parole." (citations omitted)).

Plaintiffs nonetheless argue that they "have a limited liberty interest in 'not being denied parole for arbitrary or impermissible reasons,'" Pls.' Br. 32 (quoting Boddie v. N.Y. State Div. of Parole, 285 F. Supp. 2d 421, 428 (S.D.N.Y. 2003)), and that a policy of denying parole to nearly all violent offenders constitutes "'flagrant or unauthorized'" action in violation of their minimal due process rights, Pls.' Br. 41 (quoting Monroe v. Thigpen, 932 F.2d 1437, 1441 (11th Cir. 1991)). As we have previously explained in prior cases involving substantively identical allegations, however, the claims Plaintiffs assert in this action are insufficient to trigger any such "limited liberty interest." For example, in McAllister v. New York State Division of Parole, 432 F. App'x 32 (2d Cir. 2011) (summary order), we affirmed the dismissal of allegations that a prisoner was denied parole pursuant to an "unofficial policy" to deny parole to violent felony offenders solely on the basis of the violent nature of their convictions. Similarly, in Mathie v. Dennison, 381 F. App'x 26 (2d Cir. 2010) (summary order), we affirmed the dismissal of a claim, almost identical to the one presented here, that New York State implemented an "unofficial policy" to deny parole to violent felony offenders solely on the basis of the violent nature of their convictions and without proper consideration of all the statutory criteria. There, we relied on the district court's "thorough and well-reasoned order," which concluded that a policy that requires the Board to look first and foremost at the severity of the crime when making its parole determination is neither arbitrary nor capricious and that a plaintiff cannot state a federal due process claim for alleged violations of state law. Id. (citing Mathie v. Dennison, No. 06 Civ. 3184 (GEL), 2007 U.S. Dist. LEXIS 60422 (S.D.N.Y. Aug. 16, 2007)). Plaintiffs' allegations are insufficient for at least two reasons. First, Plaintiffs do not allege that the State's unofficial policy requires the Board to look outside the statutory factors in making its parole determination; instead, they merely argue that the Board has overvalued the severity of the crime at the expense of other statutory considerations. However, Plaintiffs' minimal due process rights are "limited to not being denied parole for arbitrary or impermissible reasons." Boddie, 285 F. Supp. 2d at 428.*fn3 A policy of according substantial weight to the severity of the crime is neither arbitrary nor capricious; indeed, the Board is required to consider this factor as part of its determination, and it is entitled to give whatever weight it deems appropriate to each of statutory factors. Mathie, 2007 U.S. Dist. LEXIS 60422, at *18; see also Robles v. Dennison, 449 F. App'x 51 (2d Cir. 2011) (summary order) ("[T]he Parole Board is authorized to take a punitive or retributive factor into consideration, by asking whether the nature of the prisoner's crime ever makes release from incarceration to parole appropriate.") (internal quotation marks and alterations omitted); Romer v. Travis, No. 03 Civ. 1670, 2003 U.S. Dist. LEXIS 12917, at *20 (S.D.N.Y. July 29, 2003) ("The Parole Board may give whatever weight it deems ...


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