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Opperisano v. Jones

United States District Court, E.D. New York

February 26, 2018

P.O. JONES, P.O. MEDINA and P.O. DELUCA, Brooklyn Parole Office, Defendants.



         Plaintiff Joseph Opperisano, currently incarcerated at Mid-State Correctional Facility, [1]commenced the above-captioned action on June 2, 2016, [2] pursuant to 42 U.S.C. § 1983 against Defendants the New York Division of Parole, [3] Andrea Evans, Chairperson of the New York State Board of Parole (“Board of Parole”), and Parole Officers Jones, Medina, and Deluca, of the Brooklyn Parole Office.[4] By Memorandum and Order dated January 25, 2017 (“January 2017 Decision”), the Court sua sponte dismissed Plaintiff's claims against the New York Division of Parole and Evans. (See January 25, 2017 Decision, Docket Entry No. 15.) Defendant Jones now moves to dismiss the claim against her pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Def. Mot. to Dismiss (“Def. Mot.”), Docket Entry No. 33; Def. Mem. in Supp. of Def. Mot. (“Def. Mem.”), Docket Entry No. 34.) Plaintiff does not oppose the motion.[5] For the reasons discussed below, the Court grants Jones' motion and dismisses Plaintiff's claim against Jones with prejudice.

         I. Background

         a. Factual background

         The Court assumes familiarity with the facts as detailed in the January 2017 Decision and provides a summary of only the pertinent facts. (See January 2017 Decision.) For purposes of this motion, the facts alleged in the Complaint are assumed to be true.

         Plaintiff was released from prison in 2010 and moved into his family's home located in Brooklyn, New York. (Compl. 6.) Plaintiff's wife also resided at his family's home. (Id.) In 2011, Plaintiff had a “verbal argument” with his wife that resulted in his wife obtaining an order of protection against him, which prohibited him from residing with her. (Id.) The day after Plaintiff's wife obtained the order of protection, Jones, Plaintiff's then-parole officer, told Plaintiff that, despite the order of protection, he could reside in an upstairs apartment with his parents while his wife lived in the basement apartment of the same building. (Id.) At some point thereafter, Plaintiff was arrested for violating the order of protection and served 365 days at the Greenburg Correctional Facility. (Id.) After his release in 2012, Plaintiff violated the terms of his release on two separate occasions, resulting in parole revocations in 2014 and 2016. (Id. at 9, 11.) Although Plaintiff challenges all three revocations, Jones was not involved in the latter two revocations. (See id.)

         Plaintiff alleges that Jones violated his due process rights by allowing him to reside at the family home, putting him at risk of violating the conditions of his parole. (Id. at 5, 9.) He asserts that by failing to adequately assess the risks involved, Jones failed to follow the proper procedures required in selecting a “suitable place” of residence for a parolee. (Id. at 8.) Plaintiff seeks $15 million in damages for psychological and emotional damage, lost wages and loss of family time with his parents and child.[6] (Id. at 5.)

         II. Discussion

         a. Standard of review

         In reviewing a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a court must construe the complaint liberally, “accepting all factual allegations in the complaint as true and drawing all reasonable inferences in the plaintiff's favor.” Concord Assocs., L.P. v. Entm't Prop. Trust, 817 F.3d 46, 52 (2d Cir. 2016) (quoting Chambers v. Time Warner Inc., 282 F.3d 147, 152 (2d Cir. 2002)); see also Tsirelman v. Daines, 794 F.3d 310, 313 (2d Cir. 2015) (quoting Jaghory v. N.Y. State Dep't of Educ., 131 F.3d 326, 329 (2d Cir. 1997)). A complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)); see also Pension Ben. Guar. Corp. ex rel. St. Vincent Catholic Med. Ctrs. Ret. Plan v. Morgan Stanley Inv. Mgmt. Inc., 712 F.3d 705, 717- 18 (2d Cir. 2013). Although all allegations contained in the complaint are assumed true, this principle is “inapplicable to legal conclusions” or “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Iqbal, 556 U.S. at 678.

         “In deciding an unopposed motion to dismiss, a court is to ‘assume the truth of a pleading's factual allegations and test only its legal sufficiency.'” Haas v. Commerce Bank, 497 F.Supp.2d 563, 564 (S.D.N.Y. 2007) (quoting McCall v. Pataki, 232 F.3d 321, 322 (2d Cir. 2000). “[A]lthough a party is of course to be given a reasonable opportunity to respond to an opponent's motion, the sufficiency of a complaint is a matter of law that the court is capable of determining based on its own reading of the pleading and knowledge of the law.” McCall, 232 F.3d at 322. Therefore, a “plaintiff's failure to respond to a 12(b)(6) motion does not warrant dismissal” “[i]f a complaint is sufficient to state a claim on which relief can be granted.” Id. at 323.

         b. Plaintiff's claim against Jones is barred by Heck v. Humphrey

         Jones argues that Heck v. Humphrey, 512 U.S. 477 (1994), requires dismissal of the action against her because Plaintiff's claim would necessarily imply the invalidity of his 2012 parole revocation. (See Def. Mem. 5.)

         An individual convicted of a crime may not bring a section 1983 suit for damages that “necessarily impl[ies] the invalidity of his conviction or sentence . . . unless [he] can demonstrate that the conviction or sentence has already been invalidated.” Heck, 512 U.S. at 487; Shapard v. Attea, 710 F. App'x 15, 17 (2d Cir. Oct. 12, 2017); Warren v. Fischl, 674 F. App'x 71, 73 (2d Cir. 2017); see also Spencer, 523 U.S. 1, 17 (1998) (discussing that plaintiffs may seek damages for “‘wrong procedures, [but] not for reaching the wrong result, ' [so long as that] procedural defect did not ‘necessarily imply the invalidity of' the revocation” (quoting Heck, 512 U.S. at 482-83, 487).

         Heck's limitation of section 1983 claims has come to be known as the “favorable-termination” rule and applies to revocations of parole. See Victory v. Pataki, 632 F. App'x 41, 44 (2d Cir. 2016) (finding “Heck's . . . favorable termination requirement” to be satisfied); Lee v. Donnaruma, 63 F. App'x 39, 41 (2d Cir. 2003) (“Courts have applied Heck to prevent a state prisoner from bringing a [s]ection 1983 action challenging a parole revocation unless that revocation decision is reversed or the underlying conviction is set aside.”); but see Miner v. Goord, 354 F. App'x 489, 491 (2d Cir. 2009) (holding section 1983 claim challenging parole revocation was not barred by Heck's favorable termination rule because plaintiff had “completed his term of imprisonment”).

         A parolee challenging a parole revocation must therefore demonstrate that his parole revocation has been “reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus.” Heck, 512 U.S. at 486-87; Brannon v. 73rd Precinct, No. 15-CV-0072, 2016 WL 8711204, at *2 (E.D.N.Y. Apr. 15, 2016) (“[P]laintiff's 42 U.S.C. § 1983 claim regarding the revocation of his parole is barred by Heck because his parole revocation has not been reversed, expunged, or declared invalid.” (citation omitted)); Praileau v. New York, No. 17-CV-836, 2017 WL 6033738, at *5 (N.D.N.Y. Nov. 8, 2017) (“[T]o the extent plaintiff may be arguing that the parole revocation, and, thus, his incarceration following the arrest for parole violations was improper, ‘[s]ince [p]laintiff has not established that the parole revocation has been invalidated . . . [p]laintiff cannot assert a [section] 1983 claim as an improper collateral attack upon the validity of his . . . parole revocation.'” (citation omitted)), report and recommendation adopted, No. 17-CV-836, 2017 WL 6033420 (N.D.N.Y. Dec. 5, 2017).

         i. Spencer and the limitation of Heck's favorable termination rule

         There remains substantial dispute as to the applicability of Heck's favorable termination requirement to an individual who is not “in custody”[7] within the meaning of habeas under federal law, or otherwise cannot obtain federal habeas relief. See Teichmann v. New York, 769 F.3d 821, 828 (2d Cir. 2014); Heck, 512 U.S. at 500 (“[State prisoners] not ‘in custody' cannot invoke federal habeas jurisdiction, the only statutory mechanism besides § 1983 by which individuals may sue state officials in federal court for violating federal rights.”). Read literally, Heck's holding bars all section 1983 damages claims where the underlying conviction, sentence, or parole revocation has not or cannot be invalidated. Heck, 512 U.S. at 477. However, in his concurrence in Heck, Justice Souter cautioned against such a broad interpretation of the majority holding. Id. at 500. Justice Souter reasoned that to do so would “deny any federal forum for claiming a deprivation of federal rights to those who cannot first obtain a favorable state ruling, ” namely, “people who were merely fined . . . or who have completed short terms of imprisonment, probation, or parole, or who discover (through no fault of their own) a constitutional violation after full expiration of their sentences.” Id. Because of the disputed state of the law in the Second Circuit, the Court discusses the historical development of the law.

         In Spencer, decided four years after Heck, Justice Souter garnered four votes for his concurrence which expanded upon his reasoning in Heck. Spencer, 523 U.S. at 21. At issue was whether a habeas challenge to a parole revocation had been rendered moot upon the petitioner's release from custody. Id. at 7. The petitioner argued his petition was not moot, in part, because he would not otherwise be able to pursue a section 1983 damages action pursuant to Heck's favorable-termination rule. Id. at 17. Although the majority did not reach this issue, Justice Souter believed the argument to be “wrong.” Id. at 18-19. Justice Souter explained that a person “no longer ‘in custody, ' may bring a [section] 1983 action establishing the unconstitutionality of a conviction or confinement without being bound to satisfy a favorable-termination requirement that it would be impossible as a matter of law for him to satisfy.” Id. at 21. Accordingly, Justice Souter reasoned that “[a]fter a prisoner's release from custody, the habeas statute and its exhaustion requirement have nothing to do with his right to any relief.” Id. Although the concurrence received only four votes, Justice Stevens, in dissent, agreed with Judge Souter's reasoning in a footnote. See Id. at 25 n.8 (“Given the Court's holding that petitioner does not have a remedy under the habeas statute, it is perfectly clear, as Justice Souter explains, that he may bring an action under 42 U.S.C. § 1983.”). By aggregating the votes for the concurrence and dissent in Spencer, several “Circuits have . . . held that Spencer's dicta allows courts to recognize unusual and compelling circumstances in which Heck's holding does not absolutely foreclose a claim.” Poventud v. City of New York, 750 F.3d 121, 164 (2d Cir. 2014) (“Poventud II”) (Jacobs, J., dissenting) (citations omitted); Abner Mikva, The Scope of Equal Protection, 2002 U. Chi. Legal F. 1, 8 (“[A]s the late Justice Brennan used to say, the first rule of the Supreme Court is that you have to be able to count to five.”). However, “[s]everal [other] Circuits have concluded that the Spencer concurrences cannot override Heck's binding precedent.” Poventud II, 750 F.3d at 163.

         ii. Second Circuit's adoption of an exception to Heck' ...

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