United States District Court, E.D. New York
MEMORANDUM & ORDER
K. BRODIE UNITED STATES DISTRICT JUDGE
Joseph Opperisano, currently incarcerated at Mid-State
Correctional Facility, commenced the above-captioned action on
June 2, 2016,  pursuant to 42 U.S.C. § 1983 against
Defendants the New York Division of Parole,  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. 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. For the reasons discussed below, the Court
grants Jones' motion and dismisses Plaintiff's claim
against Jones with prejudice.
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.
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.)
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. (Id. at 5.)
Standard of review
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.
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.
Plaintiff's claim against Jones is barred by Heck v.
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.)
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,
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”).
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.
Spencer and the limitation of Heck's
favorable termination rule
remains substantial dispute as to the applicability of
Heck's favorable termination requirement to an
individual who is not “in custody” 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.
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.
Second Circuit's adoption of an exception to