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Trisvan v. Annucci

United States District Court, E.D. New York

January 9, 2018

JOHN TRISVAN, Plaintiff,
ANTHONY ANNUCCI, Commissioner of the New York State Division of Parole, LETRICIA MCCLEARY, Senior Parole Officer for Brooklyn V Area Office, ANNE GOULD, YVONNE KING, VIKKY URENA, and A. GAYNOR, Parole Officers for Brooklyn V Area Office, ANDREA EVANS, Former Chair of the New York Parole Board (2009-2013), and TINA STANFORD, Present Chair of the New York Parole Board (2013-Present), Defendants.


          MARGO K. BRODIE United States District Judge.

         Plaintiff John Trisvan, proceeding pro se, commenced the above-captioned action on October 14, 2014 against Defendants Anthony Annucci, Acting Commissioner of the New York State Department of Corrections and Community Supervision (“DOCCS”), [1] Letricia McCleary, Senior Parole Officer, and Anne Gould and Yvonne King, Parole Officers, of the “Brooklyn V Area Office, ” challenging the conditions of his parole and seeking relief pursuant to 42 U.S.C. § 1983. (Compl. 1, Docket Entry No. 1.) Plaintiff subsequently amended the complaint three times, adding new claims and defendants. (See Am. Compl. 1, Docket Entry No. 6; Second Am. Compl. (“SAC”) 2-4, Docket Entry No. 15; (Third Am. Compl. (“TAC”) 5, Docket Entry No. 57.)

         Defendants move to dismiss the TAC, the last amended complaint, for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6).[2] Plaintiff opposes these motions.[3]The TAC was filed on January 5, 2017, and largely mirrors the prior complaints except for the addition of claims based on the Fifteenth and Twenty-first Amendments and A. Gaynor, Parole Officer, as a Defendant. (Id. at 1-2.) For the reasons set forth below, the Court grants Defendants' motions to dismiss. Plaintiff is granted thirty (30) days from the date of this Memorandum and Order to submit a fourth, and final, amended complaint.

         I. Background

         a. Factual background

         The Court assumes familiarity with the facts as detailed in its prior Memoranda and Orders and provides a summary of only the pertinent facts. See Trisvan v. Annucci, No. 14-CV-6016, 2015 WL 1966275, at *1 (E.D.N.Y. Apr. 29, 2015) (“Trisvan I”); Trisvan v. Annucci, No. 14-CV-6016, 2016 WL 7335609, at *5 (E.D.N.Y. Dec. 16, 2016) (“Trisvan II”). In January 1997, Plaintiff's friend, Jermaine Cross, learned that another man, Raheim Slaughter, intended to rob Plaintiff.[4] See Trisvan v. Ercole, No. 07-CV-4673, 2015 WL 419685, at *2 (E.D.N.Y. Jan. 30, 2015). Cross discovered that Slaughter was in an apartment in the Albany Housing Complex in Brooklyn, New York. Id. at *1. At approximately 1:30 AM, Plaintiff accompanied Cross to the apartment to confront Slaughter. Id. at *2. When Plaintiff and Cross arrived at the apartment, they found Slaughter and shot him several times. Id. Cross was arrested a few days later and told the police that Plaintiff was the second shooter. Id. The police went to Plaintiff's home, but he had fled to Philadelphia, Pennsylvania. Id. Plaintiff returned to New York in May of 1997, and surrendered to the police. Id. Based on an eyewitness identification and Plaintiff's confession, Plaintiff was convicted of manslaughter in the first degree. Id. at *3-4. The trial judge sentenced Plaintiff to an indeterminate sentence of twelve-to-twenty-five years of imprisonment. Id. at *4.

         Plaintiff was granted parole on September 27, 2011, after serving fourteen years of his sentence at Great Meadow Correctional Facility. (TAC 2.) Gould, Plaintiff's initial parole supervisor, informed Plaintiff of the conditions of his parole, which included:

a) curfew between the hours of 9 p.m. and 7 a.m.;
b) no use of alcohol or [attendance] in an establishment of where alcohol is [the] main level of business;
c) no fraternizing or being in the company of convicted felons/felony offenders;
d) no travel outside of New York City (5 boroughs) and/or New York State;
e) cannot operate a vehicle or have possession of a driver's license;
f) cannot possess a firearm or sharp instrument that can be used and ruled as a weapon.

(Id. at 3.) King subsequently replaced Gould as Plaintiff's parole supervisor, and informed Plaintiff that he remained subject to the same conditions of release. (Id.) King also informed Plaintiff that the release conditions were imposed by Commissioner Annucci, who forwarded them to King's supervisor, McCleary. (Id. at 4.) In approximately March 2015, Urena replaced King as Plaintiff's parole supervisor. (Id.)

         In or about March or April 2015, Plaintiff was informed that he needed to submit a request to travel outside of New York City. (Id.) In June 2015, Plaintiff requested permission to travel to Albany, New York, and Urena denied the request. (Id.) Plaintiff subsequently filed a complaint to Annucci and Evans. Gaynor, who replaced Urena, subsequently also denied the travel request. (Id.) Although his travel request was eventually granted in August of 2015, Plaintiff alleges that he has been stripped of his “level three” status in retaliation for his grievance complaint. (Id.) As a result of his now “level one” status, Plaintiff must report to his parole officer every two weeks instead of once every two months. (Id.) Plaintiff also claims that he has been “forced” by each parole supervisor to agree to the parole terms. (Id.) At some point, Plaintiff was also informed that, due to his felony conviction, he no longer has the right to vote. (Id.)

         b. Procedural background

         Based on the foregoing facts, Plaintiff filed suit against Defendants, alleging violations of his rights under the First, Second, Fifth, Eighth, Ninth and Fourteenth Amendments of the United States Constitution. (Id. at 5.) In every complaint, Plaintiff has alleged: (1) that the curfew and travel conditions violate the First Amendment's Free Exercise Clause because (a) he is prohibited from praying at a mosque between 9:00 PM and 7:00 AM, and (b) he is prohibited from making a pilgrimage to Mecca, (id. at 3); (2) that the condition regarding contact with persons previously convicted of a felony violates his First Amendment right to free association because he is unable to associate with anyone unless he knows their criminal history, (id.); (3) that the firearm condition violates his Second Amendment right to bear arms, (id. at 5); and (4) that the travel restriction violates his fundamental right to travel under the Fourteenth Amendment and restricts his ability to “strengthen[] ties with [his] friends and family, . . . .” (id. at 3.) Through subsequent amendments, Plaintiff also alleged that the release conditions constitute: (5) double punishment for the same crime in violation of the Fifth Amendment's Double Jeopardy Clause, (id. at 5); (6) cruel and unusual punishment in violation of the Eight Amendment, (id.); and (7) violation of due process and equal protection rights guaranteed under the Fourteenth Amendment, (id.). Although not directly related to the conditions of parole, Plaintiff has also consistently maintained that Defendants have violated his right to vote. (Id. at 4.)

         In the April 2015 Memorandum and Order, the Court dismissed Plaintiff's claims sua sponte and denied leave to amend, finding that “Plaintiff has no protected liberty interest to be free from the special conditions of his parole and has otherwise failed to allege a constitutional violation.” Trisvan I, 2015 WL 1966275, at *4 (citations omitted). The Court also found that Plaintiff failed to “allege[] any facts to suggest that the imposition of his special conditions of parole are arbitrary and capricious or that his parole conditions are not ‘reasonably and necessarily related' to the Government's interest.” Id. (citation omitted). On appeal, the Second Circuit remanded with instructions to allow Plaintiff to file a second amended complaint to show why the ...

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