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Bradford Applegate v. Annucci

United States District Court, S.D. New York

July 17, 2017



          Vincent L. Briccetti United States District Judge.

         Plaintiff 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.

         Now 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 (Doc. #39).

         For the reasons set forth below, defendants' motions are GRANTED.

         The Court has jurisdiction under 28 U.S.C. § 1331.


         I. Factual Allegations

         For 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 favor.[1]

         Following 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.

         Plaintiff 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 County.

         On 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)).

         Plaintiff 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.

         In 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.).

         According 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).

         Following 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.[2] Noting there was no evidence of bias or misconduct, Justice Forman declined to recuse himself.

         At some 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).

         Plaintiff 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).

         On 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.

         Plaintiff 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).

         Defendant 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).

         Plaintiff 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).

         On 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 sheets.'” (Id.).

         On 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.).

         On 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.

         In a 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.

         Around this same time period, plaintiff was advised his appeal in the Second Department was assigned index number 2015-11152.

         On 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.).

         Near 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).

         On 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).

         By 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).

         By 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. ¶ 83).

         Plaintiff 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.

         By 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.

         On 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 ...

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