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Ellison v. Evans

United States District Court, Second Circuit

October 31, 2013

ANDREA EVANS, Chairperson of the NYS Board of: Parole; BRIAN FISCHER, COMMISSIONER, NYS Department of Corrections and Community Supervision; HON. ERIC T. SCHNEIDERMAN, NYS Attorney General; PATRICIA JOHNSON, SORC, DOCCS; HON. ANDREW CUOMO, Governor of the State of New York, Defendants.



Pro se plaintiffs[1] Christopher Ellison, Edwin Fuller, Benedict Torres, and Jonathan Hurley brought this action on February 6, 2013 pursuant to, inter alia, 42 U.S.C. §§ 1983, 1985(3), and 1986 against several New York state entities and officials seeking various forms of declaratory and injunctive relief related to the rules and regulations governing the parole release consideration process. (Compl. ¶ 27, ECF No. 7.) Plaintiffs are currently incarcerated at Woodbourne Correctional Facility ("Woodbourne") in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"). The remaining defendants in this action are all individuals who are being sued in their official capacity: Chairwoman of the New York State Parole Board Andrea Evans, DOCCS Commissioner Brian Fischer, New York State Attorney General Eric Schneiderman, New York Governor Andrew Cuomo, and DOCCS Senior Offender Rehabilitation Counselor Patricia Johnson.[2]

On March 28, 2013, plaintiffs filed a motion for a preliminary injunction pursuant to Federal Rule of Civil Procedure 65(a) seeking, in substance, much of the same injunctive relief they seek in the complaint related to the parole release consideration process. (ECF Nos. 29-30.) Defendants opposed the motion and cross-moved to dismiss the complaint, on May 13, 2013, for lack of subject matter jurisdiction under Rule 12(b)(1) and for failure to state a claim on which relief can be granted under Rule 12(b)(6). (ECF Nos. 39-41.) Plaintiffs filed their combined reply in support of their motion for a preliminary injunction and opposition to defendants' motion to dismiss on August 14, 2013.[3] (ECF No. 56.) Defendants filed their reply brief in support of their motion to dismiss on September 30, 2013, at which point the motions were fully briefed.[4] (ECF No. 59.)

Because plaintiffs' preliminary injunction motion requires that they demonstrate "either... a likelihood of success on the merits or... sufficiently serious questions going to the merits to make them a fair ground for litigation, " Salinger v. Colting , 607 F.3d 68, 79 (2d Cir. 2010) (quotations and citations omitted), the Court first considers defendants' motion to dismiss under Rule 12.

For the reasons set forth below, defendants' motion to dismiss is GRANTED. Plaintiffs' preliminary injunction motion is thus DENIED and this action is dismissed.


Defendants move to dismiss the complaint under Rules 12(b)(1) and 12(b)(6).[5] Under Rule 12(b)(1), a case may be dismissed for lack of subject matter jurisdiction when the district court "lacks the statutory or constitutional power to adjudicate it." Makarova v. United States , 201 F.3d 110, 113 (2d Cir. 2000) (citing Fed.R.Civ.P. 12(b)(1)). To overcome a Rule 12(b)(1) motion to dismiss, a plaintiff has the burden of proving jurisdiction by a preponderance of the evidence. Id . (citing Malik v. Meissner , 82 F.3d 560, 562 (2d Cir. 1996)).

To survive a Rule 12(b)(6) motion to dismiss, a complaint "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007)); see also Ferranti v. Heinemann, 468 F.App'x 85, 85 (2d Cir. 2012) (applying the Twombly standard to a pro se complaint). This is not a "probability requirement"; the standard asks for "enough fact to raise a reasonable expectation that discovery will reveal evidence of [the misconduct]." Twombly , 550 U.S. at 556. That is, "[f]actual allegations must be enough to raise a right to relief above the speculative level." Id. at 555.

In reviewing a motion to dismiss under either Rules 12(b)(1) or 12(b)(6), the Court "must accept all factual allegations in the complaint as true and draw inferences from those allegations in the light most favorable to the plaintiff." Jaghory v. New York State Dep't of Educ. , 131 F.3d 326, 329 (2d Cir. 1997). Moreover, "[i]t is well established that the submissions of a pro se litigant must be construed liberally and interpreted to raise the strongest arguments that they suggest." Triestman v. Federal Bureau of Prisons , 470 F.3d 471, 474 (2d Cir. 2006) (citations and internal quotation marks omitted). At the same time, the court must "limit itself to a consideration of the facts that appear on the face of the complaint." Vollinger v. Merrill Lynch & Co., Inc. , 198 F.Supp.2d 433, 437 (S.D.N.Y. 2002) (citations and internal quotation marks omitted) (quoting Ryder Energy Distrib. Corp. v. Merrill Lynch Commodities Inc. , 748 F.2d 774, 779 (2d Cir. 1984)).


Plaintiffs state that their complaint "presents over 66 causes of action... and require at least 60 different permanent and preliminary injunctions." (ECF No. 46.) The vast majority of these claims concern the processes of parole board hearings regulated by New York Executive Law § 259-i(2)-the New York state parole statute. (See, e.g., Compl. ¶¶ 42-45, 58-70, 578-580, 583.) Plaintiffs allege they were all considered for and denied parole release (id. ¶ 70) but also concede that they are not challenging these past denials (id. ¶¶ 42, 50). In sum, plaintiffs allege that the various ways in which the New York state parole system is set up and administered violate 42 U.S.C. §§ 1983, 1985, and 1986, and the Due Process[6] and Equal Protection Clauses of the Fourteenth Amendment.

The Court first analyzes plaintiffs' federal constitutional claims, and then turns to their related federal statutory claims-because both sets of claims fail as a matter of law, the Court grants defendants' motion to dismiss the complaint.

I. Due Process

Plaintiffs argue that the New York parole scheme is deliberately misapplied and misconstrued by the individuals who administer it, and also that the governing statutes and regulations are unconstitutionally vague, in violation of their rights under the ...

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