United States District Court, S.D. New York
DOMINIC M. FRANZA, Plaintiff,
TINA M. STANFORD, et al, Defendants.
KENNETH M. KARAS, UNITED STATES DISTRICT JUDGE:
Plaintiff Dominic M. Franza ("Plaintiff), currently
incarcerated at Fishkill Correctional Facility, brought suit
against New York State Board of Parole Chairwoman Tina M.
Stanford ("Stanford"); Commissioners Erik Berliner
("Berliner"), Charles Davis ("Davis"),
Tyece Drake ("Drake"), Caryne Demosthenes
("Demosthenes"), and Marc Coppola
("Coppola"); and Chief Counsel Kathleen M. Kiley
(Kiley; collectively, "Defendants") pursuant to 42
U.S.C. § 1983. (See Second Am. Compl.
("SAC") (Dkt. No. 40).) Plaintiff alleges that
Defendants violated his rights under the Fourteenth Amendment
and Supreme Court precedent in United States ex rel.
Accardi v. Shaughnessy, 347 U.S. 260 (1954).
December 11, 2019, the Court issued an Opinion and Order
dismissing Plaintiffs claims and ordering the closure of his
case. (Dkt. No. 49.) See Franza v. Stanford, No.
18-CV-10892 (KMK), 2019 WL 6729258 (S.D.N.Y.Dec. 11, 2019).
Plaintiff now moves for reconsideration of that decision.
(Pl.'s Not. of Mot.; Pl's Mem. (Dkt. Nos. 51-52).)
standard for granting a motion for reconsideration under
Local Rule 6.3 is strict, so as to avoid repetitive arguments
on issues that have been considered fully by the Court."
Sampson v. Robinson, No. 07-CV-6890, 2008" WL
4779079, at *1 (S.D.N.Y. Oct. 31, 2008) WL 4779079, at *1
(S.D.N.Y. Oct. 31, 2008) (quotation marks omitted).
Furthermore, a "motion for reconsideration is not an
opportunity for a losing party to advance new arguments to
supplant those that failed in the prior briefing of the
issue." VR Global Partners, L.P. v. Bennett (In re
Refco Capital Mkts., Ltd. Brokerage Customer Sec.
Litig.), Nos. 06-CV-643, 07-CV-8686, 07-CV-8688, 2008 WL
4962985, at *l (S.D.N.Y. Nov. 20, 2008). "Rather, to be
entitled to reconsideration, a movant must demonstrate that
the Court overlooked controlling decisions or factual matters
that were put before it on the underlying motion, which, had
they been considered might reasonably have altered the result
reached by the court." Id. (internal quotation
marks omitted). In other words, "[Reconsideration is
appropriate only where there is an intervening change of
controlling law, newly available evidence, or the need to
correct a clear error or prevent manifest injustice."
In re Refco, 2008 WL 4962985, at * 1 (internal
quotation marks omitted).
Plaintiff repeats the argument advanced in his brief,
(see Dkt. No. 47 at 13-15, ) that Defendants'
failures "to specify the scale from which they
departed" were violations of a "mandatory
non-discretionary scheme" and therefore not subject to
absolute immunity. (Pl's Mot. 11-14.) Relatedly,
Plaintiff also suggests that the Court "inadvertently
overlooked" a relevant Supreme Court precedent,
United States v. Gaubert, 499 U.S. 315 (1991), that
support this argument. (PL's Mem. 11.)
argument is without merit. First, the Court carefully
considered Plaintiffs contention that Defendants acted in a
ministerial capacity and were therefore not protected by
absolute immunity, and the Court rejected his argument for
several reasons expressed in its Opinion and Order. See
Franza,, 2019 WL 6729258, at *6. Second,
Gaubert is inapposite. That case addresses the
liability of the United States under the Federal Tort Claims
Act; it does not discuss the absolute immunity of state
officials acting in a judicial capacity. See
Gaubert, 499 U.S. at 322 ("The liability of the
United States under the FTCA is subject to the various
exceptions contained in § 2680 ....").
insofar as Plaintiff argues that "the vote to deny
parole is not the subject of the complaint[; rather, the
subject of the complaint is] solely the Defendants'
failure to write the vote of denial in conformance with 9
NYCR § 8002(a)," (Pl.'s Mem. 13, ) Plaintiffs
claims must be dismissed for an additional reason as well.
Here, Plaintiff expressly disclaims that the deprivation of
his liberty is the subject of the complaint. Instead,
Plaintiff simply asserts the existence of a novel
constitutionally protected interest in a parole
decision's conformance with New York State regulations.
Plaintiff cites no caselaw supporting the existence of such a
constitutionally protected interest, nor could he. As courts
have repeatedly explained, "state statutes do not create
federally protected due process entitlements to specific
state-mandated procedures." Holcomb v. Lykens,
337 F.3d 217, 224 (2d Cir. 2003); see also Cusamano v.
Sobek, 604 F.Supp.2d 416, 482 (N.D.N.Y.2009) ("A
violation of a state law or regulation, in and of itself,
does not give rise to liability under 42 U.S.C. §
reasons stated above, as well as for the reasons articulated
in the Court's December 11, 2019 Opinion and Order,
see Franza, 2019 WL 6729258, ...