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Justice v. King

United States District Court, W.D. New York

March 27, 2015

JOHN D. JUSTICE, and on behalf of all parolees similarly situated, Plaintiffs,


FRANK P. GERACI, Jr., Chief District Judge.


This prisoner's civil rights action was commenced on May 9, 2008 by pro se Plaintiff John Justice ("Plaintiff"), an inmate in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), who is currently housed at Great Meadow Correctional Facility ("Great Meadow"). The Second Amended Complaint[1] ("SAC"), filed on June 14, 2012, pursuant to 42 U.S.C. § 1983, 42 U.S.C. § 1985, and 18 U.S.C. § 1964(c), alleges violations of the First, Eighth, and Fourteenth Amendments of the United States Constitution and provisions of the Racketeer Influenced and Corrupt Organizations statute ("RICO").[2] ECF No. 414. A RICO Case Statement was filed pursuant to Rule 9 of Local Rules of Civil Procedure of the Western District of New York (L. R. Civ. P. 9) and Standing Order No. 22. ECF No. 416.

Before the Court for determination are several motions.[3] Plaintiff, pro se, filed separate motions denominated as: (1) Notice of Motion for Temporary Restraining Order ("TRO") (ECF No. 440) and Memorandum of Law in Support of Temporary Restraining Order (Pl.'s TRO Mem.) (ECF No. 441); (2) Notice of Cross-Motion for Sanctions and Preclusion Order ("Sanctions") (ECF No. 431); and (3) Notice of Motion for Class Action Certification ("Certify Class") (ECF No. 41).

Six named Defendants have sought dismissal of the SAC pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Defendants Terry King ("King") and Saving Grace Ministries, Inc. ("SGM") have filed a Motion to Dismiss the Second Amended Complaint ("King & SGM MTD"). ECF No. 418. Defendants Michael Hogan ("Hogan"), Richard Miraglia ("Miraglia"), Eugenio Russi ("Russi"), and Thomas Tortora ("Tortora"), collectively referred to as "State Defendants, " have filed a Motion to Dismiss the Second Amended Complaint for Failure to State a Claim ("State Defs.' MTD"). ECF No. 426.

Plaintiff, pro se, [4] filed Plaintiff's Combined Opposition to Motions to Dismiss (ECF No. 430) and, on his behalf, pro bono counsel filed a Memorandum of Law in Opposition to Defendants' Motions to Dismiss ("Pl.'s MOL") (ECF No. 448). Thereafter, in response to pro bono counsel's Memorandum of Law in Opposition, Defendants King and SGM, and the State Defendants filed their respective replies. ECF Nos. 451, 452. This is the present posture of the case.


A. State Court Trial and Appellate History

Summarized in a decision by the New York State Supreme Court, Appellate Division, Fourth Department (Green, Justice), are the initial background facts in this case:

The facts of this tragic case are not in dispute and may be stated briefly. On September 16, 1985 at approximately 3:15 P.M. defendant, then 17 years of age and academically gifted, stabbed his brother to death as the brother returned home from school. Shortly thereafter, defendant fatally stabbed his mother when she returned home from work, then picked up his father from work in the family car and stabbed him to death as he entered the house. Defendant then made several unsuccessful attempts at suicide, left the house in the family car at approximately 7:15 P.M., drove the car at an excessive rate of speed and crashed into a car operated by Wayne Haun, who was killed. Defendant sustained only minor injuries.
Defendant was charged with four courts of murder in the second degree and four counts of criminal possession of a weapon in the fourth degree for the stabbing deaths of his brother, mother and father and the death of Mr. Haun. At trial defendant asserted the affirmative defense of insanity ( see, Penal Law § 40.15). The jury found that defendant established the affirmative defense with respect to the deaths of his father and brother and found defendant not guilty by reason of mental disease or defect on those counts. The jury found defendant guilty of intentional murder in the death of his mother and guilty of depraved indifference murder in the death of Mr. Haun.

People v. Justice, 173 A.D.2d 144, 145-46 (N.Y.App.Div. 1991). Following these verdicts, Defendant was sentenced in Erie County Court on February 20, 1987 to a term of 25 years to life on each of the murder counts and a term of one year on each of the weapons possession charges, all sentences to be served concurrently. Erie County Court ordered these sentences to be served first and that compliance with these sentences was to satisfy the statutorily required commitments as a result of having been found not guilty by reason of mental disease or defect in the deaths of his brother and father.

On appeal, the Fourth Department did not disturb the not guilty by reason of mental disease or defect dispositions, but reversed the murder convictions and the related weapon possession counts, on the ground that the trial court failed to properly respond to a jury request for supplemental instruction on the insanity defense, and remanded for a new trial. Id. at 148-49. Following a retrial, at which he was convicted of manslaughter in the first degree in the death of his mother and manslaughter in the second degree in the death of Mr. Haun, and the related weapon possession counts and, thereafter, on January 14, 1993 sentenced to consecutive terms of 81/3 to 25 years, and five to 15 years, an aggregate term of 131/3 to 40 years, on the manslaughter convictions, and one year on each of the weapon possession convictions, Plaintiff again appealed. The judgment was unanimously affirmed. People v. Justice, 202 A.D.2d 981 (N.Y.App.Div. 1994).

B. Plaintiff's Second Amended Complaint

Plaintiff has sued all Defendants in their individual and official capacities, and the SAC describes the Defendant parties to this action as follows: SGM - a corporation organized under New York Law with its principal place of business at 1932 Bailey Avenue, Buffalo, New York and "formed for the purposes of, inter alia, promot[ing] and engag[ing] in efforts... to influence youth and others to follow the principles of the gospel of Jesus Christ'"; King - an individual with a principal place of business at 1932 Bailey Avenue, Buffalo, New York, a founder of SGM and its Executive Director at all relevant times; Russi - an individual with a principal place of business at 460 Main Street, Buffalo, New York, an employee of the New York State Division of Parole ("DOP"), and upon information and belief, current DOP Regional Director; Tortora - an individual with a principal place of business at 454 E. Broad Street, Rochester, New York, an employee of the DOP, and upon information and belief, current DOP Program Specialist; Miraglia - an individual with a place of business at 100 Park Street, Glens Falls, New York, an employee of the New York State Office of Mental Health ("OMH"), including at relevant periods, Associate Commissioner; and Hogan - an individual with a place of business at 44 Holland Avenue, Albany, New York, current Commissioner of OMH ("Comm. OMH"). ECF No. 414, ¶¶ 3-9.

The SAC recounts the trial and appellate history related above (ECF No. 414, ¶¶ 11-14, 18), advancing several claims in five separate counts, the first three pursuant to 42 U.S.C. § 1983 and the last two pursuant to RICO, 18 U.S.C. § 1961, et seq. Count I alleges that Defendants Miraglia and Hogan deprived him of liberty without due process in violation of the Due Process Clause of the Fourteenth Amendment by subjecting him to New York Criminal Procedure Law § 330.20 ("CPL § 330.20"); violated his rights under the Equal Protection Clause of the Fourteenth Amendment by treating him differently than other persons who have satisfied statutory commitment requirements under CPL § 330.20 and intentionally discriminated against him; and violated his right to substantive due process under the Fourteenth Amendment by subjecting him to CPL § 330.20. ECF No. 414, ¶¶ 33-39.

Count II alleges a putative class of "all parolees who have resided at properties owned or operated by Defendant SGM" and that Defendants SGM, King, and Russi violated Plaintiff's individual and (putative) class members' rights under the Establishment Clause of the First Amendment and the Due Process Clause of the Fourteenth Amendment by coercing them to accept placement at SGM residences and to participate in Evangelical Christian and Start Teaching About Relationship Truths ("S.T.A.R.T.") Program activities, while in placement. ECF No. 414, ¶¶ 40-47. Count III alleges that Defendants SGM, King, Miraglia, Hogan, and Russi violated his rights under the Eighth and Fourteenth Amendments by their deliberate indifference to his mental health needs. ECF No. 414, ¶¶ 48-50.

Counts IV and V alleges RICO violations. On behalf of Plaintiff individually and the members of the (putative) class of "all parolees who have resided at properties owned or operated by SGM, " Count IV alleges that Defendants King and Tortora violated RICO, 18 U.S.C. § 1962(c) by establishing an enterprise. ECF No. 414, ¶¶ 51-71. On behalf of Plaintiff individually and (putative) class members, Count V alleges that Defendants SGM, King, and Tortora violated RICO, 18 U.S.C. § 1962(b) by acquiring an interest or control of the enterprise through a pattern of racketeering activity. ECF No. 414, ¶¶ 72-74. Plaintiff's RICO Case Statement basically tracks these allegations.


A. Before proceeding to discuss the Defendants' motions to dismiss the SAC, I will address, in turn, pro se Plaintiff's other motions.

1. TRO

Pro se Plaintiff states that he is the subject of a Criminal Procedure Law § 330.20(14) Recommitment Application filed against him in Erie County on behalf of Defendant Hogan, and by this motion seeks a temporary restraining order pursuant to Fed.R.Civ.P. 65(b), "directed at Defendant Michael Hogan to temporarily prevent the CPL 330.20(14) Recommitment Application from proceeding in State Court." ECF Nos. 440. As support for this TRO application, Plaintiff has attached to his Affidavit several exhibits, including copies of the current pleading in this action, Ex. A (ECF No. 440-1); the CPL § 330.20(14) Recommitment Application made on behalf of Defendant Hogan on February 14, 2013, Ex. B (ECF No. 440-2); the transcript of the deposition of Defendant Miraglia conducted on January 19, 2012, Ex. C (ECF No. 440-3); Defendant Miraglia's Response to Plaintiff's First Request for Admission, Ex. D (ECF No. 440-4); the Memorandum Decision and Order of M. William Boller, A.J.S.C., dated January 23, 2008, which denied Petitioner Justice's C.P.L.R. Article 78 application to compel Respondents Hogan and the Erie County District Attorney to apply for a recommitment order pursuant to CPL § 330.20(14) and disclosure pursuant to CPLR Article 31, Ex. E (ECF No. 440-5); and a proposed Temporary Restraining Order, EX. F (ECF No. 440-6). For the reasons set forth herein below, Plaintiff's application for a TRO is denied.

The well-settled test for granting a temporary restraining order, in the Second Circuit, is the same as for a preliminary injunction ( see Jackson v. Johnson, 962 F.Supp. 391, 392 (S.D.N.Y. 1997)), and requires the movant to demonstrate "(a) irreparable harm and (b) either (1) likelihood of success on the merits, or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting preliminary injunctive relief." Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979) (per curiam). As Plaintiff points out, the violation of a constitutional right will demonstrate irreparable harm. Lynch v. City of New York, 589 F.3d 94, 99 (2d Cir. 2009).

It is also well settled, generally, that the decision to grant injunctive relief falls within the sound discretion of the district court. Himes v. Sullivan, 779 F.Supp. 258, 272 (W.D.N.Y. September 4, 1991) (citing Jack Kahn Music Co., Inc. v. Baldwin Piano & Organ Co., 604 F.2d 755, 758 (2d Cir. 1979)) (citing Doran v. Salem Inn, Inc., 422 U.S. 922, 931-32 (1975)). A court is reminded that a temporary restraining order "is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion, " Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (citations omitted), since its purpose is to "preserve the status quo and prevent irreparable harm until the court has an opportunity to rule on the merits." Candelaria v. Baker, No. 00-CV-0912E, 2006 U.S. Dist. LEXIS 13238, at *9, 2006 WL 618576, at *3 (W.D.N.Y. Mar. 08, 2006) (quoting Devose v. Herrington, 42 F.3d 470, 471 (8th Cir. 1994) (per curiam)).

Plaintiff contends that a TRO is needed to prevent irreparable harm based on "the threat of an unlawful civil commitment [in] violation of due process under CPL 430.10 and the 14th Amendment, " and of "Eighth Amendment rights to be free from cruel and unusual punishment, " based on the following allegations that: Hogan has used an illegally obtained CPL § 330.20(12) Order of Conditions to deprive him of liberty and is seeking by the Recommitment Application to unlawfully deprive him of liberty; the Physician's Affidavit of Dr. Brian Belfi, submitted as support for the Recommitment Application alleges that Plaintiff is dangerously mentally ill, a condition which cannot be justified solely on the basis of a personality disorder; and, under CPL § 430.10, once commenced, a criminal sentence cannot be interrupted, but if a Recommitment Application is granted, Plaintiff would be removed from the custody of DOCCS to Hogan's custody under CPL § 330.20, interrupting his sentence in violation of CPL § 430.10 and the Fourteenth Amendment, and causing him to lose credit for time served toward his criminal sentence; and his criminal sentence did not contemplate a period of CPL § 330.20 supervision. ECF No. 441, ¶¶ 9-25.

Regarding the likelihood of success on the merits, Plaintiff primarily relies on the Second Amended Complaint filed in the 42 U.S.C. § 1983 action discussed herein-above, specifically the allegations regarding an Order of Conditions granted by Supreme Court, Erie County (Justice Ronald H. Tills) on January 3, 2006, and the granting of a five-year extension of the Order of Conditions by the Supreme Court, Erie County, on February 23, 2011. ECF No. 414, ¶¶ 24, 30. Significantly, Plaintiff alleges in the instant TRO motion that the illegally obtained Order of Conditions underlies the Recommitment Application which threatens "unlawful civil commitment, " resulting in a loss of liberty in violation of the Fourteenth Amendment.

Additionally, Plaintiff seeks a stay of the state court proceedings. He further argues that regarding comity, the Rooker-Feldman doctrine does not apply to parallel state and federal proceedings.

With respect to staying proceedings in state court, the court in Gustave v. City of New York, No. 10-CV-3314 (KAM), 2010 WL 3943428, at *2 (E.D.N.Y. Oct. 6, 2010) discussed the relevant law:

The law is clear that as a general rule, federal courts may not enjoin state court proceedings. See 28 U.S.C. § 2283 ("A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments."); Younger v. Harris, 401 U.S. 37, 45 (1971) ("[T]he normal thing to do when federal courts are asked to enjoin pending proceedings in state courts is not to issue such injunctions."). Federal courts may enjoin state criminal proceedings only "under extraordinary circumstances, where the danger of irreparable loss is both great and immediate." Younger, 401 U.S. at 45 (quoting Fenner v. Boykin, 271 U.S. 240, 243, 46 S.Ct. 492, 70 L.Ed. 927 (1926)). "Certain types of injury, in particular, the cost, anxiety, and inconvenience of having to defend against a single criminal prosecution, could not by themselves be considered irreparable' in the special legal sense of that term." Id. at 46. Thus, where the injury to the accused is "solely that incidental to every criminal proceeding brought lawfully and in good faith, ... he is not entitled to equitable relief, " even where the statute under which he is prosecuted is to be claimed unconstitutional. Id. at 49 (internal quotation and citations omitted). A challenge to a state prosecution as "unauthorized and hence unlawful" will not, without more, warrant federal intervention. Id. at 46 (quoting Watson v. Buck, 313 U.S. 387, 400, 61 S.Ct. 962, 85 L.Ed. 1416 (1941)).

The general rule is applicable in the instant matter, as Plaintiff has presented no basis for concluding that a stay pursuant to 28 U.S.C. § 2283 is warranted, or that "extraordinary circumstances, where the danger of irreparable loss is both great and immediate" exist. Federal intervention is unwarranted where the gravamen of Plaintiff's claim is that the alleged loss of liberty will result from unauthorized and unlawful recommitment proceedings in state court which is based upon an illegally obtained Order of Conditions.

Contrary to Plaintiff's urging, the Rooker-Feldman doctrine does apply in the circumstances presented. A plaintiff may not initiate an action in federal court that: (1) directly challenges a state court holding or decision; or (2) indirectly challenges a state court holding or decision by raising claims in federal court that are inextricably intertwined with the state court judgment, even if the main claim is that the state court's action was unconstitutional. District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 466 (1983). Only the Supreme Court may entertain a direct appeal from a state court judgment. Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923). By this TRO application, Plaintiff is seeking to have this court engage in the very conduct proscribed by the Rooker-Feldman doctrine. Moreover, the state court proceeding seeking recommitment pursuant to CPL § 330.20(14) is not, as Plaintiff contends, a parallel criminal proceeding to the instant § 1983 action. This court, therefore, is constrained not to interfere in the state court proceedings.

Finally, I am also aware that during this federal court action, Plaintiff previously, unsuccessfully attempted in the Western District Court of New York to enjoin state court proceedings begun in December 2010 when the New York State Attorney General's Office sought an order extending the same Order of Conditions of release pursuant to CPL § 330.20. By Decision and Order dated January 27, 2011, United States District Judge Charles Siragusa denied Plaintiff's motion for substantially the same reasons. ECF No. 319. Based upon the law and for the afore-stated reasons, the application for a TRO is denied.

2. Class Certification

In the original Complaint commencing this action on May 9, 2008, Plaintiff, pro se, alleged a class action in Counts III, IV, and VI. ECF No. 1. On July 10, 2008, Plaintiff filed a notice of motion ("Notice of Motion for Extension of Time, Pursuant to Rule 23(d) of the Local Rules of Civil Procedure") and supporting affidavit seeking to extend the time to move for class action status. ECF No. 7. Thereafter, on November 20, 2008, Plaintiff filed a motion seeking to certify as class actions Counts III, IV, and VI of the Amended Complaint ("Notice of Motion for Class Action Certification") (ECF No. 41).

Pursuant to the Motion Scheduling Order of December 8, 2009 (ECF No. 50), all served Defendants filed responses in opposition to the motion (ECF Nos. 55, 56), and requested denial of the motion on several grounds. First, all Defendants alleged that the motion was untimely pursuant to Local Rule of Civil Procedure 23(d) which required motion filing "within 120 days after the filing of a complaint alleging a class action, unless this period is extended in the scheduling order, or on motion for good cause filed prior to the expiration of the 120-day period, the party seeking class certification shall move for a determination under Federal Rule of Civil Procedure 23(c)(1) as to whether the case is to be maintained as a class action." Second, all Defendants alleged that class action certification was not appropriate in the circumstances of Plaintiff's case. Plaintiff filed his replies to Defendants' responses. ECF No. 58, 59, 60. He has since filed the SAC (ECF No. 414), setting forth allegations respecting the putative class members in connection with Counts III, IV and V, repeating the previous allegations:

The class for purposes of this Count consists of all parolees who have resided at properties owned or operated by Defendant SGM. Upon information and belief, the number of class members exceeds 1000 and joinder of all members is impracticable. There are questions of law and fact common to the class and Plaintiff's claims in this Count are typical of, and identical to, those of all class members. Plaintiff is committed to pursuing the class members' claims, and will fairly and adequately represent the class.

With respect to the timeliness issue, upon review, the docket activity in this case reveals that no scheduling order for good cause shown was ever entered granting the July 2008 request for an extension, and none was sought by Plaintiff within the specified time frame. The motion, therefore, was untimely.

Even if I were to ignore the lack of timeliness, which I do not so choose, consideration of the merits leads me to conclude that the motion to certify the class should be denied based on the failure to comply with the standards for class certification set forth in Rule 23 of the Federal Rules of Civil Procedure. In Rule 23(a), the four prerequisites, numerosity, commonality, typicality, and adequacy are delineated, respectively:

(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the interests of the class.

Fed. R. Civ. P. 23(a).

Not only must these four prerequisites be met, but certification of the class must be deemed appropriate under one of the three subdivisions of Rule 23(b):

(1) prosecuting separate actions by or against individual class members would create a risk of:
A. inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class; or
B. adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests;
(2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole; or
(3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that class action is superior to other available methods for fairly and efficiently adjudicating the controversy.
A. the class members' interests in individually controlling the prosecution or defense of separate actions;
B. the extent and nature of any litigation concerning the controversy already begun by or ...

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