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Duffy v. Evans

September 19, 2012

JOHN DUFFY, PLAINTIFF,
v.
ANDREA EVANS, CHAIRPERSON, NEW YORK STATE DIVISION OF PAROLE, DEFENDANT.



The opinion of the court was delivered by: Jesse M. Furman, United States District Judge

OPINION AND ORDER

Plaintiff John Duffy, a New York State prisoner who is proceeding pro se, brings this action against Andrea Evans, Chairperson of the New York State Board of Parole (the "Board"), pursuant to Title 42, United States Code, Section 1983, alleging that his constitutional rights were violated when the New York State Division of Parole repeatedly denied his application for parole release. Specifically, the complaint, filed on October 26, 2011, includes nine causes of action for alleged deprivation of Duffy's rights to procedural and substantive due process, free speech, and equal protection. Plaintiff seeks declaratory and injunctive relief, including expungement of any false information in his parole file and a de novo hearing before the Board. (Compl. ¶ 38). Defendant Evans now moves, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, for dismissal of the complain in its entirety. (Docket No. 14). For the reasons stated below, Defendant's motion to dismiss is GRANTED in part and DENIED in part.

BACKGROUND

On a motion to dismiss, a court may consider facts stated in the complaint, any documents attached to the complaint, and any documents incorporated by reference into the complaint. See, e.g., Nechis v. Oxford Health Plans, Inc., 421 F.3d 96, 100 (2d Cir. 2005). Accordingly, the following facts are taken from the complaint and from documents attached to and referenced therein, and are assumed to be true for purposes of this motion. See, e.g., LaFaro v. N.Y. Cardiothoracic Grp., PLLC, 570 F.3d 471, 475 (2d Cir. 2009).

Plaintiff Duffy is a New York State prison inmate currently incarcerated at the Hudson Correctional Facility in Hudson, New York. (Compl. ¶ 1). At all times relevant to this action, Plaintiff was incarcerated at the Arthur Kill Correctional Facility in Staten Island, New York, and the Mid-Orange Correctional Center, located in Orange County, New York. (Id. ¶ 2). In 1981, Plaintiff Duffy was convicted of murder in the second degree for the 1979 stabbing of James Connelly and was sentenced to an indeterminate term of imprisonment of twenty years to life. (Id. ¶ 4). Duffy became eligible for parole after he served his minimum sentence and appeared before the Board for the first time in 2001, at which point his application for parole was denied. Since 2001, Plaintiff has appeared before the Board five additional times. Each time the Board has denied his application for parole and recommended that he apply again in two years, the maximum allowed interval under N.Y. Executive Law § 259-i(2)(a). (Id. ¶ 2).*fn1

After he was denied parole in 2005, Duffy commenced an Article 78 proceeding under the New York Civil Practice Law and Rules, N.Y. C.P.L.R. 7801, et seq. (McKinney 2011), challenging the Board's denial of his application. (Biesty Decl. Ex. A). In the state court proceeding, Duffy challenged the Board's decision to deny him parole on a number of grounds, including that the Board improperly considered victim impact statements that contained false information about him. (See id.). In an opinion dated July 12, 2006, Justice Robert A. Sackett of the Supreme Court of New York, County of Albany, dismissed the proceeding, finding no support in the record for Duffy's claims. (Id.).

Duffy next went before the Board in 2007, and once again was denied parole. (Compl. ¶ 2). Thereafter, Plaintiff filed an Article 78 proceeding in Kings County Supreme Court in which he challenged the Board's failure to consider the minutes of his sentencing proceeding, which could not be located prior to his hearing. (Compl. Ex. K). Justice Arthur M. Schack granted Plaintiff's petition in a decision and order dated May 26, 2009, and ordered the Board to hold a de novo parole hearing at which it was required to afford Duffy "a favorable inference as to the sentencing recommendation of his trial judge." (Id.). The Division of Parole appealed this order to the Appellate Division, Second Department, which reversed Justice Schack's order, holding that "[i]n the absence of any indication that the unavailable sentencing minutes contained any recommendation as to parole, the failure of the Board to obtain and consider those minutes did not prejudice Duffy." (Compl. Ex. L).

In July 2009, Duffy went before the Board again, and once more was denied parole. (Compl. ¶ 2). According to the complaint, in November 2009, Duffy discovered a book written by James Connelly's sister, in which she described her efforts to have Duffy's parole applications denied. (Id. ¶ 4). The book contained victim impact statements that Connelly's sister allegedly submitted to the Division of Parole, dated 2001, which stated that Duffy had (1) assaulted a woman while on bail; (2) attacked a member of the victim's family during his criminal trial; and (3) threatened the victim's family. (Id.). By letter dated November 16, 2009, Duffy filed a complaint with Defendant Evans concerning these victim impact statements, asserting that they contained false and fabricated information and should not have been included in his file. (Compl. Ex. C). According to the complaint, the Division of Parole never responded to this letter. (Compl. ¶ 9). Duffy then commenced a third Article 78 proceeding in Orange County Supreme Court, alleging that the New York Division of Parole improperly and unlawfully relied upon "false and erroneous information" contained in those statements when considering Duffy's parole application. (Compl. Ex. F). By order dated September 21, 2010, Justice Robert A. Onofry denied the application, stating that "[s]ince victim impact statements are tendered under a promise of confidentiality, and since the Board, at its discretion, can consider additional submissions which contain out of court allegations, Petitioners [sic] request to expunge these documents from his parole filed [sic] must be denied as legally unsupportable." (Id. (citations and internal quotation marks omitted)).

On July 20, 2011, Duffy appeared before the Board once more - his sixth time in ten years. At the 2011 hearing, the Board noted that Duffy disputed some information provided by the victim's family contained in his parole file. (Compl. ¶ 10). The Board also questioned Duffy about his past behavior and future plans. (Compl. Ex. D at 9-11, 13). At some point, the Board completed a pre-printed form titled "New York State -- Board of Parole -- Commissioner's Worksheet." (Compl. Ex. E). Duffy's name and identification number were handwritten at the top of the form. (Id.). Just below Duffy's name, in a section of the form captioned "PAROLE DECISIONS," the Board checked the box labeled "DENIED" and indicated that Duffy's next appearance would be in July 2013. (Id.).

The form also includes the following typed statement:

CONDITIONS OF RELEASE / REASONS FOR DENIAL

Parole is denied. After a careful review of your record, a personal interview, and due deliberation, it is the determination of this panel that, if released at this time, there is a reasonable probability that you would not live at liberty without violating the law, and your release at this time is incompatible with the welfare and safety of the community and would so deprecate the seriousness of the crime as to show disrespect for the law [sic]

This decision is based on the following: You stand convicted of the following serious offense (Id.). Following that typed statement, the following is written by hand: of murder 2 in which you caused the death of a 15 year old male by repeatedly stabbing him in the neck and chest. This was a heinous crime. It was completely senseless and has probably ruined the lives of many people. After it occurred, you ran and became a fugitive for about 18 months. This crime shows a complete lack of regard for human life. (Id.). The handwritten passage also contains two crossed-out sentences, which appear to state that Duffy "claim[s] the victim's family is making false statements about [him]." (Id.). Finally, just below the hand-written text appears the following typed sentence: "Consideration has been given to your program completion and satisfactory behavior, however your release at this time is denied." (Id.).

Consistent with the Worksheet, the Board determined that Duffy was not yet suitable for parole. The Board's written Decision Notice, dated July 21, 2011, included an explanation of the denial that was nearly identical to the text on the Worksheet. (Compl. Ex. J). Among other things, the Board explained that it based its decision on the "heinous" nature of Duffy's crime, which was "completely senseless and has probably ruined the lives of many people." (Id.). The Board also noted that after the 1979 crime, Duffy "ran and became a fugitive for about 18 months." (Id.). The Board concluded that "if released at this time, there is a reasonable probability that [Duffy] would not live at liberty without violating the law, and [Duffy's] release at this time is incompatible with the welfare and safety of the community and would so deprecate the seriousness of the crime as to show disrespect for the law." (Id.).

Plaintiff commenced this action on October 26, 2011. (Docket No. 2).

DISCUSSION

In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept the factual allegations set forth in the complaint as true and draw all reasonable inferences in favor of the plaintiff. See, e.g., Holmes v. Grubman, 568 F.3d 329, 335 (2d Cir. 2009). To survive a Rule 12(b)(6) motion, however, the plaintiff must plead sufficient facts "to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). More specifically, the plaintiff must allege sufficient facts to show "more than a sheer possibility that a defendant acted unlawfully." Id. A complaint that offers only "labels and conclusions" or "a formulaic ...


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