United States District Court, S.D. New York
OPINION AND ORDER
Vincent L. Briccetti United States District Judge.
Bradford Applegate, proceeding pro se and in
forma pauperis, brings this action under 42 U.S.C.
§§ 1981, 1983, and 1985, and 28 U.S.C. § 2201,
alleging he was denied parole in violation of his
constitutional rights-because he is white, because he was
convicted of “depraved indifference murder, ” and
because he was subjected to vague or improperly applied state
laws, regulations, and parole release criteria-then was
unlawfully impeded in his attempts to obtain records pursuant
to the New York Freedom of Information Law, N.Y. Pub. Off. L.
§§ 84-90 (“FOIL”), and was further
unconstitutionally obstructed in challenging the denial of
parole in New York State courts.
pending is (i) a motion to dismiss the complaint pursuant to
Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil
Procedure filed by defendants, New York State officials,
Anthony J. Annucci, Acting Commissioner of the Department of
Corrections and Community Supervision (“DOCCS”);
Tina Stanford, Chairwoman of the New York State Board of
Parole (“Parole Board”); Heather Rubinstein,
Assistant Attorney General in the Office of the Attorney
General of the State of New York; Michael G. Hayes, Principal
Court Attorney for Justice Peter M. Forman, Acting Justice of
the Supreme Court of the State of New York, County of
Dutchess; and Aprilanne Agostino, Clerk of Court for the
Appellate Division of the Supreme Court of the State of New
York, Second Department (collectively, “state
defendants”) (Doc. #45); and (ii) a motion to dismiss
the complaint pursuant to Rules 12(b)(1) and 12(b)(6) filed
by defendant Bradford H. Kendall, the Dutchess County Clerk
reasons set forth below, defendants' motions are GRANTED.
Court has jurisdiction under 28 U.S.C. § 1331.
purposes of ruling on a motion to dismiss, the Court accepts
all factual allegations of the complaint as true, and draws
all reasonable inferences in plaintiff's
a jury trial in 1989, plaintiff was convicted of murder in
the second degree for beating a twenty-two year old woman to
death and then disposing of her remains in the Hudson River.
Plaintiff was also convicted of criminal mischief in the
third degree for vandalizing a motel room, criminal
impersonation in the second degree for using another
person's Medicaid card to seek medical treatment, and
forgery in the third degree for forging hospital records.
Plaintiff was sentenced to twenty-five years to life
imprisonment on the murder conviction; one and one-third to
four years imprisonment on the criminal mischief conviction,
to run consecutively to his sentence on the murder
conviction; and concurrent one year periods of imprisonment
on the criminal impersonation and forgery convictions.
has been in DOCCS's custody since at least 1989, and has
been serving his sentences since that time. At all times
relevant to this action, plaintiff has been incarcerated at
Fishkill Correctional Facility, which is located in Dutchess
September 16, 2014, plaintiff had his first interview with
the New York State Parole Board. Plaintiff claims the Parole
Board rushed through the interview, deliberately failed to
review plaintiff's sentencing minutes, and subsequently
edited derogatory comments from the interview transcript.
Plaintiff received a “boilerplate” parole denial
two days later, citing, among other things, plaintiff's
crimes of conviction, prior criminal record, COMPAS
(Correctional Offender Management Profiling for Alternative
Sanctions) risks and needs assessment, rehabilitative
efforts, parole plans, letters of support, poor disciplinary
record, remorse, significant community opposition to
plaintiff's release, “and all other factors
required by law.” (Pl. Decl. Ex. H (Doc. #61)).
then submitted a FOIL request to the Fishkill Parole Office
requesting, among other things, the community opposition
letters cited by the Parole Board, a purported
prosecutor's opposition letter, and a redacted list of
inmates whose parole proceedings had been postponed on the
day of plaintiff's parole interview due to those
inmates' sentencing minutes not being available.
Plaintiff also submitted a FOIL request to obtain the
“stenographic medium” from his Parole Board
interview in order to have it “properly”
transcribed. (Compl. ¶ 47). Both of plaintiff's FOIL
requests were denied.
October 2014, plaintiff filed an administrative appeal of the
Parole Board's decision. Plaintiff's administrative
appeal was not answered within the prescribed statutory time
period, and, accordingly, plaintiff filed a N.Y. C.P.L.R.
Article 78 petition in Supreme Court, Dutchess County, in
April 2015. See Applegate v. Annucci & Stanford,
Index No. 1289/2015 (N.Y. Sup. Ct.).
to a decision, order and judgment of Justice Peter M. Forman,
dated September 18, 2015, on his Article 78 petition,
plaintiff claimed the Parole Board's denial of his
application for release to parole must be annulled because
the Board failed to promulgate “written
procedures” before rendering that determination, as
required by a 2011 Amendment to N.Y. Executive Law Section
259-c(4). The state court rejected plaintiff's argument
and found the Parole Board properly incorporated a COMPAS
risks and needs assessment as required by N.Y. Executive Law
Sections 259-c(4) and 259-i(2)(c)(A). The court also found
the Board properly considered plaintiff's parole
application in compliance with the written procedures set
forth in the October 5, 2011, Memorandum from former
Chairwoman Andrea Evans, as further required by N.Y.
Executive Law Sections 259-c(4) and 259-i(2)(c)(A). The court
rejected plaintiff's argument that the Board improperly
denied his parole application based solely on the facts
underlying his crime of conviction. Noting a “parole
denial may be set aside only when the determination to deny
the petitioner release on parole evinced irrationality
bordering on impropriety, ” the court found the Parole
Board's decision was neither arbitrary nor capricious,
and there was no evidence the Board's determination was
irrational to the point of bordering in impropriety.
Applegate v. Annucci, Index No. 1289/2015 (N.Y. Sup.
Ct. Sept. 21, 2015) (Keane Decl. Ex. A at 2) (internal
quotation marks omitted).
the dismissal of his Article 78 petition, plaintiff filed a
motion for reargument, contending Justice Forman had
misconstrued the facts and misapplied the law. Plaintiff also
sought Justice Forman's recusal, claiming he was biased
against plaintiff, had colluded with the Office of the New
York Attorney General, and was attempting to interfere with
plaintiff's appeal from the September 18, 2015, decision
and order. Noting there was no evidence of bias or
misconduct, Justice Forman declined to recuse himself.
point after receiving Justice Forman's September 18,
2015, decision, plaintiff requested a copy of the
“docket sheet” from his Article 78 proceedings
from defendant Hayes. (Compl. ¶ 62). Hayes forwarded
plaintiff's request to the Dutchess County Clerk, who
provided plaintiff with an “abbreviated listing”
of the docket. (Id. ¶ 63).
had moved to reargue Justice Forman's September 18, 2015,
decision on various grounds, and was granted reargument based
on the fact that the Board's decision referred to
“significant community opposition” to
plaintiff's release, which had not been made part of the
record. (Keane Decl. Ex. D at 7).
October 7, 2015, while his motion for reargument was still
pending before Justice Forman, plaintiff filed a notice of
appeal to the Appellate Division, Second Department,
appealing Justice Forman's September 18, 2015, decision
and order. Plaintiff's notice of appeal was addressed to
the Chief Clerk of the Dutchess County Court, and sought to
proceed by way of the appendix method. Plaintiff intended to
argue on appeal, among other things, that Justice Forman
failed to address a number of the issues plaintiff presented
in his Article 78 petition.
sought to subpoena the record on appeal by mailing a subpoena
to defendant “Michael G. Hayes, Esq., Chief Clerk,
” and sending a courtesy copy to the Appellate
Division, Second Department. (Compl. ¶ 65).
Hayes, however, is not a “Chief Clerk, ” but
rather is Justice Forman's principal court attorney.
Accordingly, defendant Hayes returned plaintiff's
subpoena to plaintiff. Plaintiff wrote Hayes regarding the
subpoena again on October 29, 2015, advising him “in
the strongest possible terms to CEASE AND DESIST from
interfering with [plaintiff's] perfection of [his]
appeal.” (Compl. ¶ 66).
received a letter dated October 20, 2015, from the Second
Department Clerk's Office stating “our records
indicate there is no appeal pending in this court under your
name to date.” (Compl. ¶ 66).
November 6, 2015, plaintiff received a letter from
“Chief Clerk Michael Thompson” advising plaintiff
that “[t]he County Clerk is the office that maintains
the ‘docket' and is in possession of the physical
file and all original papers.” (Compl. ¶ 67). He
also instructed plaintiff that “[a]ppeals should be
filed at the County Clerk's office and should be filed
with the appropriate fee. The Chief Clerk does not forward
records on appeal or provide ‘docket
November 9, 2015, plaintiff wrote “Principle Court
Counsel/Clerk Michael G. Hayes, ” asking, “Where
is my Notice of Appeal, and what have you done with
it?” (Compl. ¶ 68). According to plaintiff, this
letter detailed the “sordid litany of interference at
the hands of Dutchess County Court and other clerks.”
(Id.). Plaintiff also sent similar letters to
Dutchess County Clerk Bradford Kendall, Chief Clerk Michael
Thompson, and the Chief Clerk of the Second Department. Six
weeks later, defendant Hayes “assured” plaintiff
that his notice of appeal was received by the County Clerk on
October 21, 2015, and two copies were forwarded to the
Appellate Division on that same day. (Id.).
November 18, 2015, plaintiff again mailed his subpoena
regarding the record on appeal to “Chief Clerk Michael
Thompson” and “Dutchess County Clerk Bradford
Kendall” and provided a courtesy copy to the Appellate
Division and the Attorney General of the State of New York.
letter postmarked November 2, 2015, defendant Hayes advised
plaintiff that Hayes was “not the clerk of the court
for the purposes of the Second Department's Rules.”
(Compl. ¶ 70). The letter also advised plaintiff that a
subpoena for the record on appeal “must be directed to
the Dutchess County Clerk, which is the clerk of the Supreme
Court in this county, and the official repository of all
documents and papers that were filed in this
proceeding.” (Id.). Because plaintiff had
already served a subpoena on Dutchess County Clerk Kendall on
November 11, 2015, plaintiff did not take any further action
in response to Hayes' letter.
this same time period, plaintiff was advised his appeal in
the Second Department was assigned index number 2015-11152.
November 19, 2015, plaintiff was notified by the Second
Department that if he believed he was indigent, he “may
apply . . . to proceed on the appeal as a poor person, which
would include using the original papers instead of a record
or appendix, and a waiver of the payment of the filing
fee.” (Compl. ¶ 71). On or around December 5,
2015, plaintiff applied for such relief and included his
November 2015 monthly statement from his inmate account with
his application to demonstrate he did not possess the
court's $315 filing fee. (Id.).
the end of 2015, plaintiff received a letter from defendant
Kendall relating to the appeal of a different case: Earl
Wright v. Annucci, 15/1289 and 15/3426. Plaintiff
responded by writing “an extremely strong letter”
to Kendall, accusing him, defendant Hayes, and Michael
Thompson of interfering with his appeal “at the behest
of and in collusion with” Justice Forman. (Compl.
¶ 73). Plaintiff's letter also inquired as to the
status of his appeal and requested a listing of all
correspondence regarding his case. Plaintiff sent copies of
this letter to the New York State Commission on Judicial
Conduct, 9th Judicial District. Plaintiff also wrote Justice
Forman demanding a ruling on his reargument motion, and
“that he [c]ease and [d]esist from recruiting Dutchess
County Court Clerks to interfere with the prosecution of his
Second Department appeal.” (Id. ¶ 73).
January 7, 2016, plaintiff received a letter from the
Dutchess County Clerk's Office acknowledging receipt of
his December 23, 2015, letter. The letter enclosed a docket
sheet for plaintiff's Article 78 proceeding, index number
15/1289, and a requisition slip indicating that on November
9, 2015, Justice Forman requested the 15/1289 case file and
it was currently in his chambers. (Compl. ¶ 74).
According to plaintiff, the docket sheet was incomplete and
the fact that Justice Forman was holding his Article 78
proceeding file in his chambers provided evidence that
Justice Forman was intentionally interfering with
plaintiff's attempt to perfect his appeal, and that the
“entire N.Y. State Government ha[d] BROKEN DOWN.”
(Id. ¶ 79).
ruling dated January 22, 2016, Justice Forman adhered to his
original decision that plaintiff's parole denial was not
“irrational bordering on impropriety.”
Applegate v. Annucci, Index No. 1289/2015 (N.Y. Sup.
Ct. Jan. 22, 2016) (Keane Decl. Ex. D at 7). According to
plaintiff, Justice Forman's January 22, 2016,
reconsideration decision was “more of the same”
and did “not address ANY of Plaintiff's
well-preserved issues proving such hearing's
illegality.” (Compl. ¶ 80). Plaintiff claims
Justice Forman's reconsideration opinion demonstrates
“he is obviously an advocate FOR not only DOCCS and
BOP, but particularly the Attorney General's
Office.” (Id. ¶ 81).
letter dated January 26, 2016, defendant Kendall informed
plaintiff that in order to transmit the record on appeal to
the Appellate Division, plaintiff must first pay a $20 fee
and execute a subpoena duces tecum to the County Clerk as
Clerk of the Court. The letter also indicated if plaintiff
could not afford the transfer fee, he must apply to the
Appellate Division for “poor person status relieving
[him] of the obligation to pay the fee.” (Compl. ¶
responded to Kendall's January 26, 2016, letter,
informing him that plaintiff would not pay a transfer fee,
and that plaintiff had already served the subpoena.
decision dated February 16, 2016, the Appellate Division
granted plaintiff permission to proceed on the original
record, but denied his poor person status request in all
other respects, including a denial of a waiver of the
court's $315 filing fee.
February 17, 2016, plaintiff submitted a request to the
Appellate Division, Second Department's Clerk of Court,
defendant Aprilanne Agostino, requesting that the April 6,
2016, deadline to file his appellate brief be extended until
the court granted his “soon-to-be-filed” motion
for reargument seeking a waiver of the court's $315
filing fee, or until this Court ...