NORMAN et al v. N.J. STATE PAROLE BOARD et al
Filing
85
OPINION. Signed by Judge Julien Xavier Neals on 11/2/2021. (ams, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
HELEN E. NORMAN and JOSEPH J.
NORMAN,
Civ. Action No. 17-4413 (JXN) (ESK)
Plaintiffs,
V.
OPINION
NEW JERSEY STATE PAROLE BOARD, et
al,
Defendants.
NEALS, District Judge
Plaintiffs Helen E. Norman and Joseph J. Norman are proceeding pro se with a civil rights
complaint pursuant to 42 U.S.C. § 1983 and state law. (Third Am. Compl.,ECFNo.4L) Presently
before the Court are Defendants' motion for summary judgment, (Defs.' Mot. for Sumrn. J., ECF
No. 78), and Plaintiffs' cross-motion for summary judgment, (Pis.' Mot. for Summ. J., ECF No.
79.) For the reasons below, the Court will deny Plaintiffs' and Defendants' motions for summaiy
judgment in all respects.
I. FACTUAL BACKGROUND
In 2009, a jury convicted Joseph Norman of a sex offense against then fourteen-year-old
Helen Norman. (See ECF No. 41 ^ 8; Defs.' Statement of Material Facts, ECF No. 78-3 ^ 2.) As
a result of the offense, Helen became pregnant and bore a child, A.N. (See ECF No. 41^ 8;ECF
No. 78-3 p.)
The sentencing court sentenced Joseph to a term of imprisonment, five years of mandatory
parole supervision, and to a term of Parole Supervision for Life ("PSL") pursuant to N.J. Stat.
2C:43-6.4. (See ECF No. 78-3 ^ 3; Pis.' Statement of Material Facts, ECF No. 79-3 ^ 5.) The
PSL implementing regulation requires that Joseph refrain from contacting Helen, see NJ. Code §
10A:71~6.12(d)(l 9) (the "no-victim-contact condition"), and, because she was a minor at the time
of the offense, the regulation further requires that Joseph refrain from initiating, establishing, or
maintaining contact with any minor, to refrain from attempting to do so, and to refrain from
residing with any minor without prior approval of the District Parole Supervisor, see § 10A:716.12(e) (the "no-minor-contact condition").
In September 2014, officials released Joseph from custody, and he began serving his PSL
term. (ECF No. 78-3 D 6; ECF No. 79-3 ^ 5.) After Joseph's release, Helen, now an adult, began
to reach out to him. (ECFNo. 41 ^ 13.) Joseph disregarded the PSL conditions and began seeing
Helen and A.N. on a regular basis in the Spring of 2015. (See id, \ 14.) During this period, Helen
became pregnant again and the two had another son, N.N. (See id ^ 18.)
Parole officers subsequently charged Joseph with violating his PSL conditions for
contacting Helen. (See ECF No. 79-3 ^ 7; Defs.' Response to Pis.' Statement of Material Facts,
ECF No. 81-1 Tf 7.) The New Jersey State Parole Board (the "Board") found that Joseph had
violated his conditions of parole, but it did not recommend revocation. (See ECF No. 79-3 ^ 7;
ECF No. 81-1^7.) Instead, the Board placed him on the Electronic Monitoring Program ("EMP")
and released him. (See ECF No. 79-3 ^ 10; ECF No. 81-1 ^ 10.)
After Joseph's release, Helen and Joseph communicated via phone and text messages.
(ECF No. 41 TI 38.) Hoping to see Joseph in person, Helen wrote the Board informing it other
desire to contact Joseph. (ECFNo. 79-3 ^[ 15;ECFNo. 81-1 ^15.) Joseph's attorney also formally
requested that the Board lift the no-victlm-contact condition of Joseph's parole. (ECF No. 79-3 ^
13; ECF No. 81-11(13.)
On August 5,2016, parole officers made a surprise visit to Joseph's residence and observed
the messages to and from Helen on his phone. (ECF No. 41 ^[ 41.) As a result, the officers took
Joseph into custody and charged him with violating the no-victim-contact condition of his parole.
(ECF No. 79-3 ^ 14; ECF No. 81 -1 K 14.) On January 18,2017, the Board again found that Joseph
had violated his conditions of parole but concluded that the violation was not serious enough to
warrant revocation. (ECFNo. 79-3 If 18; ECF No. 81-1 ^ 18.) Instead, the Board reinstated Joseph
onto parole, and subsequently approved holding the no-victim-confact condition in abeyance.
(ECF No. 79-3 ^ 18-19; ECF No. 81-1 ^ 18-19.) Tiie no-www-contact condition, however,
remained in effect. (See ECF No. 79-3 ^ 23; ECF No. 81-1 K 23.)
In April 2017, Joseph helped Helen and their children move into a new apartment. (ECF
No. 41 ^ 111.) However, in May 2017, parole officers found out and allegedly coerced Joseph
into falsely stating that he had been alone with one of his sons during the move while Helen was
busy giving the other son a bath. (Id ^ 136.) As a result, officers took Joseph into custody once
again. (See id. ^ 122-140.)
Subsequently, Joseph and Helen filed a formal "Live with Children" request ("LWC") to
allow Joseph to live with his two minor children. (ECF No. 79-3 ^ 20; ECF No. 81-11[ 20.) After
a couple weeks had passed without a decision from the Board, Joseph and Helen initiated this
lawsuit by filing a complaint on June 15, 2017. (See CompL, ECF No. 1.)
On October 18, 2017, a panel of the Board found that Joseph had violated the no-minorcontact condition of his parole based in part on his May 2017 statement about contact with his son.
(ECFNo. 41 U 149.) Accordingly, the panel revoked Joseph's PSL status and ordered him to serve
a one-year term of incarceration. (Id. ^ 150.) Approximately one year later, the State released
Joseph on parole. (M ^ 173.)
On September 26, 2018, the Board denied Joseph's LWC request. (ECF No. 79-3 U 23;
ECF No. 81-1 ^ 23.) Thereafter, Joseph submitted a second LWC request to the Board, (ECF No.
79-3 1[ 24; ECF No. 81-1 ^ 24), but the Board denied this too on March 26, 2019. (ECF No. 79-3
pl; ECF No. 81-1 pl.)
Joseph appealed from the denial of his second LWC request. (ECF No. 79-3 ^ 33; ECF
No. 81-1 ^[ 31.) On July 18, 2019, in response to the appeal, the Board finally granted Joseph's
LWC request. (See ECFNo. 79-3 ^ 35; ECFNo. 81-1 U 35.)
The matter did not end there, however, because, in September 2019, Joseph requested
permission from his parole officers to reside with his soon-to-be-born daughter. (ECF No. 79-3 ^
37; ECF No. 81-1 ^ 37.) On September 10, 2019, officers granted the request but noted that
"permission can be revoked at any time due to non-compliance with his conditions of supervision."
(ECF No. 79-3 ^ 38; ECF No. 81-1 ^ 38.)
II. RELEVANT PROCEDURAL HISTORY
As noted above, Plaintiffs initiated the instant matter by filing a complaint on June 15,
2017. (See CompL, ECF No. 1.) Plaintiffs' Third Amended Complaint, the operative complaint
in this matter, raises seven claims against the Board, Board employees Senior Parole Officer
Thawra Naser and Lt. Juliemie SIrico, and "John and Jane Does." (ECF No. 41.)
On September 18,2018, this Court entered an order reflecting the parties' stipulation to the
dismissal of Counts 1,2, and 3 as well as the portion of Count 4 seeking monetary damages against
the Defendants. {See ECF No. 70.) Accordingly, the only remaining claims are Counts 4, 5, 6,
and 7 alleging:
(4) that Defendants' interference with Plaintiffs' rights as parents
violated Plaintiffs substantive due process rights under the First
and Fourteenth Amendment of the United States Constitution
and Article 1 of the New Jersey State Constitution;
(5) that Defendants' denial of Joseph Norman's right to live with his
children and to have unsupervised contact with his children
absent a ^/'e-deprivation hearing violated his procedural due
process rights under the Fourteenth Amendment of the United
States Constitution and Article 1 of the New Jersey State
Constitution;
(6) that Defendants' denial of Joseph Norman's right to live with his
children and to have unsupervised contact with his children
absent a ^as'/"deprivatkm hearing violated his procedural due
process rights under the Fourteenth Amendment of the United
States Constitution and Article 1 of the New Jersey State
Constitution; and
(7) that Defendants' engaging in a judicial function reserved to the
Family Part of the Chancery Division of the New Jersey
Superior Court violated the Separation of Powers Clause of the
New Jersey Constitution.
(See ECF Nos. 41, 70.) Plaintiffs seek a declaratory judgment declaring that NJ. Code § 10A:7I6.12(e) violates Plaintiffs' substantive and procedural due process rights and injunctive relief
enjoining the Defendants from enforcing the regulation against Plaintiffs. (See ECF No. 41.)
On April 5, 2021, Defendants filed the first of the motions for summary judgment that are
before this Court, (ECF No. 78.) Defendants' motion for summary judgment raises four
arguments:
(1) this Court should dismiss Plaintiffs' due process claims as moot
because the Board granted Joseph Norman permission to reside
with his children;
(2) this Court should dismiss Plaintiffs' claim for prospective
injunctive relief because Plaintiffs lack standing to bring this
claim;
(3) this Court should dismiss Plaintiffs' claims for declaratory relief
because a declaratory Judgment ordaining past conduct does not
present a case or controversy; and
(4) this Court should decline to exercise supplemental jurisdiction
over Plaintiffs' state law separation of powers claim, or,
alternatively, dismiss the claim because the Board is authorized
to restrict a sex offender s contact with children.
As discussed below, the Court construes the Complaint as alleging not only that Defendants'
conduct violates due process, but also that the no-minor-contact regulation itself, NJ. Code §
10A:71-6.12(e), violates due process on its face.
(Defs/ Br. in Supp. ofDefs.) Mot. for Summ. J, ECF No. 78-1, at i-ii.)
Thereafter, Plaintiffs responded with their own cross-molion for summary judgment, which
is also presently before this Court. (ECF No. 79.) Plaintiffs' cross-motion for summary judgment
raises three arguments;
(1) the authority of the New Jersey State Parole Board does not
extend to intervention in the parent/child relations ofparolees;
(2)N.J. Code § 10A:71-6.12(e) unconstitutionally abridges the
fundamental rights of parents; and
(3) NJ. Code § 10A:71-6.12(e) violates Plaintiffs' procedural due
process protections under the U.S. and New Jersey Constitution.
(Pis.' Br. in Supp. of Pis.' Mot. for Summ. J., ECF No. 79-4, at 2.)2
Defendants and Plaintiffs have submitted briefs in opposition, (see ECF Nos. 81-82), and
Defendants have also submitted a reply brief. (ECF No. 83.) Accordingly, briefing is complete,
and this matter is ripe for determination.
III.LEGAL STANDARDS
A court should grant summary judgment if the evidence in the record, viewed with all
reasonable inferences in favor of the nonmoving party, demonstrates that there is no genuine issue
of material fact, and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56;
Brooks v. Kyler, 204 F.3d 102,105 n.5 (3d Cir. 2000); Cehtex Corp, v. Catrett, 477 U.S. 317, 330
(1986); Todaro v. Bowmcm, 872 F.2d 43, 46 (3d Cir. 1989). An issue is "genuine" only if a
reasonable jury could possibly find in the non-movant's favor on that issue. Anderson v. Liberty
2 The Court construes Plaintiffs' first argument as asserting that this Court should grant summary
judgment in favor of Plaintiffs' separation of powers claim because, as Plaintiffs contend, the
Board does not have authority to intervene in the parent/child relations of parolees as the
Legislature has reserved that authority to the Judiciary. In addition, the Court construes Plaintiffs'
second and third argument as asserting that this Court should grant summary judgment in favor of
Plaintiffs on their substantive due process claims regarding the Defendants' conduct and the
constitutionality of the no-minor-contact condition, N.J. Code § 10A:71"6.12(e), on its face.
Lobby, Inc., 477 U.S. 242, 247^8 (1986). A fact is "material" only if it influences the outcome
under the applicable law. M al248.
The moving party bears the initial burden of informing the district court of the basis for its
motion and demonstrating either (1) that there is no genuine issue of fact and that as a matter of
law, the moving party must prevail, or (2) that the nonmoving party has not shown facts relating
to an essential element of the issue for which he bears the burden. Celofex, 477 U.S. at 323,331.
Once either showing is made, the burden shifts to the nonmoving party, who must demonstrate
facts which support each element for which he bears the burden and establish the existence of
genuine issues of material fact. Id. To satisfy this burden, the non-moving party "may not rest
upon the mere allegations or denials of his pleading," Fed. R. Civ. P. 56(e), and he "must do more
than simply show that there is some metaphysical doubt as to the material facts." BigApple BMW,
Inc. v. BMVofN.Am., 7/7c.,974F.2d 1358, 1363 (3dCir, 1992), cert. ^mW, 507 US. 912(1993).
The non-moving party must go beyond the pleadings and point to specific factual evidence
showing there is a genuine material issue for trial. Cehfex, 477 U.S. at 323-24. This is a rigorous
burden for the non-movant: he must "point to concrete evidence in the record that supports each
and every essential element of his case." Orsatte v. N.J. State Police, 71 F. 3d 480, 484 (3d Cir.
1995). Speculation and conjecture will not suffice. See Jackson v. Danbevd, 594 F.3d 210, 227
(3d. Cir. 2010).
IV. ANALYSIS
Plaintiffs bring this action pursuant to 42 U.S.C. § 1983 and the New Jersey Civil Rights
Act, NJ. Stat. § 10:6-1 to 10:6-2 (the "NJCRA").3 {See ECF No. 41, at 2.) To prevail on a claim
3 "Courts have repeatedly construed the NJCRA in terms nearly identical to its federal
counterpart," Section 1983. Chapman v. New Jersey, No. 08-4130, 2009 WL 2634888, at *3
7
for relief under Section 1983, a plaintiff must demonstrate the violation of a right under the
Constitution or laws of the United States4 by a person acting under color of state law. West v.
Afkws, 487 U.S. 42,48 (1988); Piechwkv, Pemisyhcmia, 36 F.3d 1250, 1255-56 (3d Ch\ 1994).
Here, Plaintiffs assert substantive and procedural due process violations under the
Fourteenth Amendment5 of the United States Constitution and Article I of the New Jersey
Constitution against the New Jersey State Parole Board,6 Senior Parole Officer Thawra Naser and
Lt. Julienne Sirico, and "John and Jane Does" seeking injimctive and declaratory relief only. (See
ECF No. 41, at 1-4; ECF No. 70.) Plaintiffs also assert a separation of powers claim against the
Defendants under the New Jersey Constitution. (ECF No. 41, at 2.) As Plaintiffs' claims against
employees of the Board involve a "person acting under color of state law/'7 and Defendants do not
(D.NJ. Aug. 25, 2009). Accordingly, the Court will analyze Plaintiffs' NJCRA claims "through
the lens of § 1983." Tmfton v. Cily ofWoodbury, 799 F. Supp. 417, 444 (D.N.J. 201 1).
4 The NJCRA additionally provides a cause of action for a violation of a right under the New Jersey
Constitution or New Jersey law. iS'eeNJ. Stat § 10:6-2(c).
5 Although Plaintiffs also refer to substantive due process rights under the First Amendment, the
Court construes the Complaint as merely alleging a Fourteenth Amendment due process violation.
As the New Jersey State Parole Board is not a "person" subject to liability under Section 1983 or
the NJCRA, the Court will dismiss Plaintiffs' claims against it with prejudice. See Thro\\>er v.
New Jersey State Parole Bd., 438 F. App'x 71 ,72 (3d Clr. 2011); Madden v. New Jersey State
Parole Board, 438 F.2d 1189, 1190 (3d Cir. 1971); Niblack v. New Jersey State Parole Bd, No.
17-1977,2017 WL 2106128, at * 2 (D.NJ. May 15,2017). The dismissal is with prejudice because
any attempt to amend the Complaint against the New Jersey State Parole Board would be futile.
See Echvards v. Lmdenwold Police Department, No. 21-13076, 2021 WL 3115809, at M (D.NJ.
July 22,2021).
7 A state official in his or her official capacity, when sued for injunctive relief, is a person under
Section 1983 because "official-capacity actions for prospective relief are not treated as actions
against the State." See Kentucky v. Graham, 473 U.S. 159, 165 (1985). Moreover, employees of
state agencies act under color of state law when they act within their position defined by state law.
West v. Atkms, 487 U.S. 42, 49 (1988).
assert otherwise, the only question that remains pertaining to the merits of Plaintiffs' claims is
whether Defendants violated Plaintiffs' rights.
Defendants^ motion for summary judgment, however, challenges the Court's authority to
hear Plaintiffs' claims. As Defendants' arguments implicate jurisdictional concerns, the Court first
reviews Defendants' arguments regarding standing, mootness, the availability of declaratory relief,
and supplemental jurisdiction. For the reasons explained below, the Court finds that Defendants
fail to demonstrate that Plaintiffs lack standing or that the Defendants' actions have mooted
Plaintiffs' claims. The Court further finds that Defendants fail to demonstrate that they are entitled
to summary judgment as to Plaintiffs separation of powers claim.
The Court then reviews the federal and state rights upon which Plaintiffs' claims are based
and assesses whether Defendants violated these rights. As explained below, the Court concludes
that Plaintiffs fail to demonstrate that they are entitled to summary judgment on their separation
of powers claim and fail to demonstrate the absence of material issues of genuine fact regarding
their remaining claims, and, therefore, summary judgment in their favor is not appropriate.
A. Standing
The Court first considers Defendants' argument that Plaintiffs lack standing to bring their
claims for prospective injunctive relief. The Court will deny summary judgment on this ground
because Defendants have not demonstrated that, at the time Plaintiffs commenced this lawsuit,
Plaintiffs lacked standing to seek prospective injunctive relief.
"Standing is a jurisdictional matter." Davis v. Wells Forgo, 824 F.3d 333, 346 (3d Cir.
2016). 'Though federal courts have a 'virtually unflagging obligation ... to exercise the
jurisdiction given them,' Article III of the Constitution limits the federal judiciary's authority to
exercise its 'judicial Power' to resolving 'Cases' and 'Controversies.'" Hamilton v. Bromley^ 862
F.3d 329, 334 (3d Cir. 2017). Courts enforce this case-or-controversy limitation "through the
several justiciability doctrines . . . including 'standing, ripeness, mootness, the political-question
doctrine, and the prohibition on advisory opinions."' 1c], at 334-35. "Absent Article III standing,
a federal court does not have subject matter jurisdiction to address a plaintiffs claims, and they
must be dismissed." Davis, 824 F.3d at 346.
"[Tjhe irreducible constitutional minimum of standing contains tluee elements." Lzijcm v.
Defenders of Wildlife, 504 US. 555, 560 (1992). "First, the plaintiff must have suffered an (?e v. Lima, 270 F. Supp.Sd 684, 703 (S.D.N.Y.
2017).
The Court agrees, in part,!I with the Second Circuit and determines that a similar test is
appropriate here in assessing whether Defendants' conduct violates due process. Thus, where
parole officials apply the no-minor-contact condition, N.J. Code § 10A:71-6.12(e), to prohibit a
parolee s interaction with his or her own children or makes such interaction subject to supervision
without any individualized inquiry and an objectively reasonable suspicion that the parolee poses
a threat to the child, the parole officers^ conduct shocks the conscience and violates the parolee's
substantive due process rights.
Having determined the appropriate standard to analyze Plaintiffs' substantive due process
claims, the Court must now determine whether Plaintiffs are entitled to summary judgment.
Plaintiffs contend that they have a fundamental liberty interest in the care, custody^ and control of
their children. (ECF No. 79-4, at 19.) The Court agrees. As Plaintiffs correctly point out, "[t]he
liberty interest at issue in this case - the interests of parents in the care, custody, and control of
their children - is perhaps the oldest of the fundamental liberty interests recognized by th[e
Supreme] Court." {Id. (citing Troxel v. GrcmviUe, 530 U.S. 57, 65-66 (2000)). Moreover,
11 This Court is unable to reconcile the Second Circuit's application of strict scrutiny rather than
the "shocks the conscience" test in cases involving non-legislative acts with the Supreme Court's
decision in Lewfs. See h4cGeoch, 546 F. App'x at 48 (applying strict scrutiny to analyze plaintiffs
claims that the sentencing court's imposition of a condition of supervised release that prevented
plaintiff from seeing his children without supervision violated plaintiffs substantive due process
rights).
24
although parolees do not enjoy the full panoply of rights and privileges according by the
Constitution, see Morrissey v. Brewer, 408 U.S. 471, 482 (1972), they do maintain the right to
raise their children, generally. See United States v. Loy, 237 F.3d 251, 269-70 (3d Cir. 2001).
Plaintiffs further contend that, given the fundamental nature of their right to raise their
children, the Court should apply strict scrutiny in analyzing any restriction on that right. (See ECF
No. 79-4, at 22.) The Court declines to apply strict scrutiny in analyzing Plaintiffs' substantive
due process claim because, as discussed above, the appropriate test to analyze non-legislative
government conduct is the "shocks the conscience" standard. See Lewis, 523 U.S. at 846;
Nicholas, 227 F.3d at 142. Accordingly, Plaintiffs' substantive due process claim will fail unless
Plaintiffs demonstrate that Defendants failed to conduct an individualized inquiry and lacked an
objectively reasonable suspicion that Joseph Norman posed a threat to his children. See Croft \ 103
F.3d at 1126; Silva, 2014 WL 4678251,at M.
The Court finds that Plaintiffs fail to demonstrate the lack of genuine issues of material
fact as to what Defendants Naser and Sirico knew or did not know regarding whether Joseph
Norman posed a threat to his children. Although Plaintiffs argue in their briefing that they
presented uncontroverted evidence suggesting that Joseph does not pose a risk to his children, (see
ECF No. 79-4, at 25), they fail to demonstrate that Defendants Naser and Sirico were aware of the
contents of this evidence or that they otherwise lacked an objectively reasonable suspicion that
Joseph Norman posed a threat to his children. Accordingly, Plaintiffs fail to demonstrate a lack
of genuine issue of material fact, and the Court will deny summary judgment as to Plaintiffs'
substantive due process claim.
25
2. Procedural Due Process
Finally, the Court considers Plaintiffs' procedural due process claims. The procedural
aspect of the Due Process Clause guarantees the availability of certain procedural mechanisms,
typically the right to notice and a hearing before the government can deprive an individual of a
liberty or property interest. Washington v. Lehigh Cty. Dist. Attorney's Office^ _ F. Supp. 3d
(E.D. Pa. 2021). To prevail on a procedural due process claim, a plaintiff must show that: (1)
Defendants deprived him of an individual liberty interest that the Fourteenth Amendment
encompasses; and (2) the procedures Defendants made available to him did not provide due
process of law. Steele, 855 F.3d at 507. As discussed above, Defendants' conduct interfered with
Plaintiffs' protected liberty interest in the care, custody, and control of their children. Accordingly,
the only issue remaining is whether the procedures Defendants employed satisfied due process.
"[D]ue process is flexible and calls for such procedural protections as the particular
situation demands." Morrisey v. Brewer, 408 U.S. 471, 481 (1972). To determine whether a
statute satisfies procedural due process, the court should balance the following factors: (1) the
private interest affected by the official action; (2) the risk of an erroneous deprivation of the
interest; (3) the probable value of additional or substitute procedural safeguards; and (4) the
governments interest, including the fiscal and administrative burden that the additional or
substitute procedures would entail. See Mafhews v. Eldridge, 424 U.S. 319, 321 (1976).
Here, Plaintiffs argue that Defendants violated their procedural due process rights by
failing to provide Joseph a hearing and other protections prior to depriving him of unsupervised
contact with his children and the right to live with them. (ECF No. 79-3, at 28.) Moreover,
Plaintiffs contend that the post" deprivation options that Defendants provided Plaintiffs do not
adequately protect Plaintiffs' fundamental rights. (Icf.)
26
Defendants counter that the pre-deprivation procedure that Joseph's underlying trial and
conviction for a crime involving his sexual assault of a minor served as a sufficient procedural
safeguard for his protected liberty interests. (See ECF No. 81, at 3.) Regarding post-deprivatlon
due process, Defendants argue that Plaintiffs were afforded the process due them when they
applied for LWC privileges. {Id.}
Although the Court rejects Defendants' contention that Joseph's underlying trial and
conviction for a crime of which the victim was not his own child could, by itself, provide the type
of individualized inquiry and procedural protections that due process requires, see Lima, 270 F.
Supp.3d at 703, the Court nonetheless finds that Plaintiffs fail to demonstrate the lack of genuine
issues of material fact regarding the pre- and post-deprivatlon procedures that Defendants did or
did not employ. Critically, Plaintiffs' statement of material facts fails to set forth the pre- and postdeprivation procedures that Defendants did or did not employ. See Local Ct. R. 56.1 (a). Moreover,
Plaintiffs' briefing fails to otherwise support Plaintiffs' assertions regarding the nature of the
procedures Defendants employed by citing to parts of the materials in the record. See Fed. R. Civ.
P. 56(c)(l)(a). Accordingly, summary judgment is not appropriate, and the Court will deny
Plaintiffs' motion on their procedural due process claims.
While courts must liberally construe the pleadings and the complaints of pro se plaintiffs, see
Enckson v. Parcfus, 127 S. Ct. 2197, 2200 (2007), pro se plaintiffs must follow the rules of
procedure and the substantive law, see McNeil v. Unitecf States, 508 U.S. 106, 113 (1993) ("[W]e
have never suggested that procedural rules in ordinary civil litigation should be interpreted so as
to excuse the mistakes of those who proceed without counsel."); Faretta v. California, 422 U.S.
806, 834 n.46 (1975) (stating that pro se status is not a license to disregard procedural rule or
substantive law).
27
V. CONCLUSION
For the foregoing reasons, the Court will deny Plaintiffs' and Defendants' motions for
summary judgment In all respects. An appropriate Order follows.
JUUl^WAVIEFS ?ALS
Unij^d Suites Disttict Judge '
28
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