Bonano v. Staniszewski et al
ORDER denying 15 Motion for Reconsideration ; granting in part and denying in part 19 Motion to Dismiss for Failure to State a Claim - For the reasons set forth in the ATTACHED WRITTEN MEMORANDUM AND ORDER, Plaintiff's motion for recons ideration is denied. Defendants' motion to dismiss is granted only to the extent that Plaintiff's claim for relief based on Defendants' delay in resolving his early termination request is dismissed as time-barred. The remainder of De fendants' motion to dismiss is denied. This matter is referred to the magistrate judge for further pretrial proceedings, including any additional discovery that may be necessary and settlement discussions. The Clerk of the Court is directed to mail a copy of this Electronic Order and the Attached Memorandum and Order to pro se plaintiff. SO ORDERED by Judge Dora Lizette Irizarry on 7/21/2014. (Irizarry, Dora)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MICHAEL BONANO, pro se,
ILENE STANISZEWSKI, Senior Parole Officer,
WILLIAM McCARTNEY, Brooklyn II Bureau Chief,:
ANDREA W. EVANS, New York State Parole
Chairwoman, TERRENCE X. TRACY, Parole Chief :
Counsel, AMANDA MEEKS, Manhattan Drug
Court Evaluator, FRANCIS J. CARUSO, Assistant :
Director of Operations, NEW YORK STATE
DIVISION OF PAROLE,
DORA L. IRIZARRY, U.S. District Judge:
MEMORANDUM AND ORDER
Michael Bonano (“Plaintiff”) filed this pro se 1 complaint against the New York State
Division of Parole (the “Division of Parole”), several of that agency’s officials, and a case
manager for the Drug Treatment Court diversion program in Manhattan (collectively,
“Defendants”). (Compl., Doc. Entry No. 1.) On August 29, 2013, this Court granted Plaintiff’s
motion for leave to proceed in forma pauperis and dismissed certain claims asserted in the
complaint (the “Order”). (See Order, Doc. Entry No. 7.) Plaintiff moves for reconsideration of
the Court’s August 29, 2013 Order. (Notice of Pl.’s Motion, Doc. Entry No. 15.) Defendants
oppose. (Reply Mem. of Law Further Supporting Defs.’ Mot. to Dismiss the Compl. (“Defs.’
Reply”) at 3, Doc. Entry No. 25.) Also before the Court is Defendants’ motion to dismiss the
complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Notice of Defs.’ Mot., Doc.
In reviewing Plaintiff’s submissions, the court is mindful that, “[a] document filed pro se is to be liberally
construed and a pro se [pleading], however inartfully pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). Accordingly, the court interprets
Plaintiff’s submissions “to raise the strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons,
470 F. 3d 471, 474 (2d Cir. 2006) (emphasis omitted).
Entry No. 19.) 2 Plaintiff opposes. (Decl. in Supp. of Resp./Opp. to Defs.’ Mot. (“Pl.’s Resp.”),
Doc. Entry No. 23.)
For the reasons stated herein, Plaintiff’s motion for reconsideration is denied, and
Defendants’ motion to dismiss is granted in part and denied in part. The Court provides certain
clarifications of its prior Order in light of Plaintiff’s pro se status.
To the extent that Plaintiff’s submissions can be read to include a request that the Court
grant summary judgment in his favor (Mem. of Law in Supp. of Mot. for Reinstatement of
Monetary Claims and Causes of Action (“Pl.’s Mem.”) at 5-6, Doc. Entry No. 16), summary
judgment is denied without prejudice as premature. Similarly, Plaintiff’s request that the Court
impose sanctions on the Defendants (Pl.’s Resp. at 14) is denied as unwarranted under the
present circumstances. Moreover, Plaintiff’s request does not comply with Rule 11 of the
Federal Rules of Civil Procedure, which requires that a motion for sanctions must be made
separately from any other motion. Fed. R. Civ. P. 11. However, Defendants are urged to ensure
that they accurately represent Plaintiff’s arguments and allegations. Finally, Plaintiff’s request
for leave to amend the complaint is denied, without prejudice in light of Plaintiff’s pro se status,
for failure to provide sufficient information for the Court to the motion. (Pl.’s Resp. at 11.) If
Plaintiff decides to renew his request to amend the complaint, he should provide a proposed
amended complaint along with the motion.
The following facts are taken from the complaint and matters of which judicial notice
may be taken, and are assumed true solely for purposes of the instant motions.
In 2000, Plaintiff was convicted of attempted assault in the second degree and sentenced
Defendants initially moved to revoke Plaintiff’s IFP status, but have since withdrawn this request. (Defs.’ Reply
to an indeterminate sentence of two to four years of imprisonment. (Compl. ¶ 24.) On July 11,
2003, Plaintiff was conditionally released after having served thirty-two months. (Id.)
In March 2004, Plaintiff was sentenced to a three-and-one-half to seven-year term of
imprisonment for third degree robbery and third degree burglary.
(Compl. ¶¶ 25, 28.)
Cusamano v. Alexander, 691 F. Supp. 2d 312, 315 (N.D.N.Y. 2009). On January 10, 2007,
Plaintiff was released from prison pursuant to standard and special parole conditions, which
included the requirement that Plaintiff submit to substance abuse testing and participate in a
substance abuse treatment program. Id. at 316. Plaintiff was reincarcerated twice for parole
violations in 2007. Id. On February 8, 2008, Plaintiff again was released from prison pursuant
to his previous special conditions as well as several additional requirements. Id.
On July 18, 2008, Plaintiff, under the alias Anthony Cusamano, filed a civil rights lawsuit
against the Division of Parole and several of its officers alleging that the imposition of special
parole conditions violated his constitutional rights (the “Cusamano action”). (Compl. ¶¶ 1-2
(citing Cusamano v. Alexander, 08-cv-781 (DNH)(ATB) (N.D.N.Y.)).
ultimately were unsuccessful: several causes of action in the Cusamano action were dismissed
for failure to state a claim, Cusamano, 691 F. Supp. 2d 312, and his remaining claims were
dismissed through summary judgment. Cusamano v. Alexander, 08-cv-781, Doc. Entry No. 46.
In February 2009, Plaintiff sought early termination of his special parole conditions.
(Compl. ¶ 4.) Steve McClymont (“Officer McClymont”), Plaintiff’s New York State parole
officer at the Brooklyn reporting office, submitted an early termination request on Plaintiff’s
behalf to the central office of the New York State Division of Parole. (Id.) Officer McClymont
purportedly informed Plaintiff that similar early termination requests were typically granted in
two weeks. (Id. ¶ 5.) In March 2009, the Division of Parole indicated that it would not grant
Plaintiff’s early termination request without documentation that he had completed his outpatient
drug treatment program. (Id. ¶ 6.) Plaintiff and Officer McClymont forwarded documentation
from the outpatient program, but Defendant Ilene Staniszewski (“Officer Staniszewski”) “simply
held it for a few weeks, rather than forwarding it promptly to Albany Parole” and eventually
called Plaintiff’s outpatient counselor to verify the documentation. (Id. ¶¶ 7-10.)
On May 6, 2009, while Plaintiff’s request for early termination of parole was pending,
Plaintiff was arrested and charged with first degree robbery. (Id. ¶ 12.) Plaintiff informed his
parole officer of the arrest on May 9, 2009 and spent the next 19 months in pretrial detention;
however, no parole violation or revocation proceedings were commenced. (Id. ¶¶ 12-13, 28.)
By August 2009, because he still had not received a decision on his early termination
application, Plaintiff wrote a letter to Defendant Andrea W. Evans (“Chairwoman Evans”),
Chairwoman of the Division of Parole, to inquire about its status. (Id. ¶ 14.) On October 7,
2009, Plaintiff received a response from Officer Staniszewski and Defendant William
McCartney, the Bureau Chief of the Brooklyn II Parole Office, which stated, “[Y]ou are still
subject to [p]arole supervision. Your M.E. date is 3/5/12. There have been no early discharges
granted at this point.” (Id. ¶ 15.) On November 16, 2009, Plaintiff wrote to Chairwoman Evans
and Officer Staniszewski again regarding his early termination request.
(Id. ¶¶ 16-20.)
Plaintiff’s letters were not answered. (Id. ¶ 21.)
On June 18, 2010, the Honorable Richard D. Carruthers of New York State Supreme
Court, New York County, transferred Plaintiff’s case to the Manhattan Drug Treatment Court
(the “drug court”) to determine Plaintiff’s eligibility for a Judicial Diversion Program in
connection with his 2009 arrest for first degree robbery (the “diversion program”). (Id. ¶ 31.) In
July 2010, Defendants Amanda Meeks and Officer Staniszewski allegedly gave false information
to the drug court opposing Plaintiff’s participation in the diversion program in retaliation for the
Cusamano action. (Id. ¶¶ 32-42.) As a result of the Division of Parole’s opposition to Plaintiff’s
participation in the diversion program, Plaintiff’s case was returned to New York State Supreme
Court, New York County. (Id. ¶¶ 43-49.) Plaintiff wrote to Chairwoman Evans informing her of
“[Officer] Staniszewski’s arbitrary and vindictive opposition” and asking her to intervene, but
Plaintiff received no response. (Id. ¶¶ 50-55.)
On November 23, 2010, Plaintiff wrote to Chairwoman Evans seeking a certificate of
discharge on his 2004 sentence for third degree robbery and third degree burglary. (Compl. ¶
22.) On March 25, 2011, Plaintiff received a letter indicating that he could not be granted a
notice of discharge because he had not completed his sentence. (Id. ¶ 23.) According to the
Plaintiff, he was informed that he had to serve the remaining sixteen months of his 2000 sentence
for attempted assault in the second degree. (Id. ¶¶ 24-25, 29.) Thereafter, a series of letters were
exchanged between Plaintiff and the Division of Parole regarding Plaintiff’s sentence. (Id. ¶¶
26-27.) Plaintiff argued, inter alia, that the Division of Parole had miscalculated his maximum
expiration and conditional release dates, wrongfully extending his potential term of
incarceration. (Id. ¶¶ 28-29, 56.) In December 2010, Plaintiff was convicted of first degree
robbery, and on March 31, 2011, Plaintiff was sentenced to two consecutive terms of
imprisonment of from 3 to 6 years. (Id. ¶¶ 22, 56.)
On November 15, 2012, Plaintiff filed the instant action. Plaintiff asserts fifteen “Causes
of Action” against different combinations of the named Defendants. (Compl. at 23-26.) Each of
the individual Defendants is sued in his or her personal and official capacities. (Id. at 2-3.)
Reading the complaint liberally, Plaintiff alleges that the Defendants retaliated against him for
bringing the Cusamano action 3 by: 1) delaying decision on and denying his request for early
termination of his parole conditions (“early termination claim”); 2) providing false information
in opposition to Plaintiff’s admission to a drug diversion program (“diversion program claim”);
and 3) miscalculating or extending Plaintiff’s sentence (“sentence miscalculation claim”).
(Compl. ¶ 58.) Plaintiff seeks $14 million in damages, demands that the named defendants be
terminated from their positions, and requests “injunctive relief preventing the Division of Parole
from mandating [him] to participate or enroll in drug treatment upon [his] eventual release to
parole supervision.” (Id. at 29.) Plaintiff’s submissions indicate that he also seeks to enjoin
Defendants “from denying [him] release in 2015, as such denial should be presumed to
perpetuate Parole’s vindictiveness. . . .” (Pl.’s Resp. at 12.) On August 29, 2013, this Court sua
sponte dismissed Plaintiff’s claims for monetary damages against the individual Defendants in
their official capacities on sovereign immunity grounds. On October 8, 2013, Plaintiff moved
for reconsideration of the Court’s Order. On December 2, 2013, Defendants moved to dismiss
Motion for Reconsideration
Plaintiff moves pursuant to Rule 60(b) of the Federal Rules of Civil Procedure (“Rule
60”) for reconsideration of the Court’s August 29, 2013 Order. Defendants oppose, arguing that
Plaintiff’s motion is: 1) untimely because it was filed more than fourteen days after entry of the
Order; and 2) meritless because “there is no liberty interest in being free from the special
conditions imposed on parole.” (Defs.’ Reply at 3-4.)
In his submissions in connection with the instant motions, Plaintiff states that the Defendants’ actions were also
taken in retaliation for an additional lawsuit he filed against employees of the New York State Department of
Corrections. (See e.g., Notice of Motion at 2-3 (citing Cusamano v. Sobek, 6-cv-0623 (GTS)(GHL) (N.D.N.Y.)).
Defendants contend that Plaintiff’s motion is untimely pursuant to Local Rule 6.3.
(Defs.’ Reply at 3). Local Rule 6.3 provides that motions for reconsideration must be served
within fourteen days after the entry of a court order. E.D.N.Y Local Civ. R. 6.3. The Court’s
Order was issued on August 29, 2013. Plaintiff’s motion for reconsideration is dated September
27, 2013, and was filed on August 8, 2013. Taking the earlier date, twenty-nine days passed
before Plaintiff served his motion for reconsideration.
Thus, Plaintiff’s motion would be
untimely if brought pursuant to Local Rule 6.3. However, Plaintiff’s motion for reconsideration
was brought pursuant to Rule 60, which provides that such motions “must be made within a
reasonable time” or, for motions made under certain subsections of Rule 60, “no more than a
year after the entry of judgment.” Fed. R. Civ. P. 60(c)(1). Moreover, “[a]n untimely motion for
reconsideration [pursuant to Local Civil Rule 6.3] is treated as a Rule 60(b) motion.” Manney v.
Intergroove Tontrager Vertriebs GMBH, 2012 WL 4483092, at *1, n.2 (E.D.N.Y. Sept. 28,
2012) (quoting Lora v. O’Heaney, 602 F.3d 106, 111 (2d Cir. 2010)).
Accordingly, Plaintiff’s motion for reconsideration is timely, but he may only seek
reconsideration pursuant to one of the grounds set forth in Rule 60(b). See id.
Plaintiff contends that the Court should grant his motion for reconsideration pursuant to
Rule 60(b)(1) and (6), which provide, in relevant part, that relief may be granted for: (1)
mistake, inadvertence, surprise, or excusable neglect; or (6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b)(1), (6). (Notice of Pl.’s Motion at 1). The Second Circuit Court of Appeals
has found that Rule 60(b)(1) and Rule 60(b)(6) are “mutually exclusive,” such “that any conduct
which generally falls under the former cannot stand as a ground for relief under the latter.”
Stevens v. Miller, 676 F.3d 62, 67 (2d Cir. 2012). Thus, “[w]here a party’s Rule 60(b) motion is
premised on grounds fairly classified as mistake, inadvertence, or neglect, relief under Rule
60(b)(6) is foreclosed.” Id.
Here, Plaintiff’s argues that the Court should grant his motion for reconsideration on the
basis that the Order contained several errors. Therefore, the Court considers whether relief is
justified pursuant to Rule 60(b)(1) rather than Rule 60(b)(6). Specifically, Plaintiff argues that
the Court erred by: 1) overlooking Plaintiff’s claim that the Defendants’ alleged misconduct was
undertaken in retaliation for lawsuits brought by the Plaintiff against the Parole Division and its
employees; 2) dismissing all of Plaintiff’s claims for monetary liability; and 3) mischaracterizing
Plaintiff’s request for injunctive relief. (Notice of Motion at 5-8; Pl.’s Mem.) For the reasons
stated herein, Plaintiff has failed to identify instances of “mistake, inadvertence, surprised, or
excusable neglect” that would justify the relief sought. See United States v. Manne, 510 F.
App’x 83, 85 (2d Cir. 2013) (finding that, although Rule 60(b) “should be broadly construed to
do substantial justice, it may be invoked only upon a showing of exceptional circumstances”).
However, the Court finds that certain clarifications of the Court’s Order are warranted in light of
Plaintiff’s pro se status.
First, Plaintiff argues at length that he has alleged facts plausibly supporting a claim that
the Defendants acted in retaliation for lawsuits he had brought against them. However, the
Court’s Order dismissing Plaintiff’s claims for monetary damages against the individual
Defendants in their official capacities was based on sovereign immunity grounds rather than
deficiencies in Plaintiff’s factual allegations.
(Ord. at 4-5.)
Therefore, the plausibility of
Plaintiff’s claim for retaliation is irrelevant.
Second, Plaintiff claims that the Court incorrectly dismissed all of his claims for
monetary damages. Although Plaintiff sued the individual Defendants in both their official and
personal capacities, the Court’s Order did not address Plaintiff’s claims against the Defendants in
their personal capacities. (See Compl. at 2-3; Ord.) Since the Eleventh Amendment does not bar
suits for monetary damages against government officials in their personal capacities, such claims
were not dismissed by the Court’s Order and remain to be adjudicated. See Shabazz v. Coughlin,
852 F.2d 697, 700 (2d Cir. 1988) (finding that defendants sued in their personal capacity in a
civil rights action are not entitled to assert “the Eleventh Amendment bar, which by definition is
available only to government entities”).
Third, Plaintiff contends that the Court mischaracterized his claim for injunctive relief by
indicating that he sought only to “correct his Parole file.” In fact, the Order stated that Plaintiff
requested that the named Defendants be terminated from their positions and that the Defendants
be prevented “from mandating [Plaintiff] to participate or enroll in drug treatment upon his
eventual release to parole supervision.” (Ord. at 3-4 (citing Compl. at 29)). The Court found
that “to the extent that Plaintiff seeks prospective injunctive relief, inter alia, to correct his parole
file, this claim may proceed.” (Ord. at 6.) The Order did not specifically preclude Plaintiff from
pursuing any form of injunctive relief.
In sum, Plaintiff’s motion for reconsideration is denied due to Plaintiff’s failure to
identify “mistake, inadvertence, surprise, or excusable neglect” justifying the relief sought.
However, the Court has provided certain clarifications to assist the parties in light of Plaintiff’s
pro se status.
Motion to Dismiss
Under Rule 8(a) of the Federal Rules of Civil Procedure, pleadings must contain a “short
and plain statement of the claim showing that the pleader is entitled to relief.” Pleadings are to
give the defendant “fair notice of what the claim is and the grounds upon which it rests.” Dura
Pharms., Inc. v. Broudo, 544 U.S. 336, 346 (2005) (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957), overruled in part on other grounds by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)).
“The pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it
demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). “A pleading that offers
‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not
do.’” Id. (quoting Twombly, 550 U.S. at 555).
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a defendant may move, in
lieu of an answer, for dismissal of a complaint for “failure to state a claim upon which relief can
be granted.” To resolve such a motion, courts “must accept as true all [factual] allegations
contained in a complaint,” but need not accept “legal conclusions.” Iqbal, 556 U.S. at 678. For
this reason, “[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice” to insulate a claim against dismissal. Id. “[A] complaint
must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Id. (quoting Twombly, 550 U.S. at 570). Notably, courts may only consider the
complaint itself, documents that are attached to or referenced in the complaint, documents that
the plaintiff relied on in bringing suit and that are either in the plaintiff’s possession or that the
plaintiff knew of when bringing suit, and matters of which judicial notice may be taken. See
Roth v. Jennings, 489 F. 3d 499, 509 (2d Cir. 2007).
Statute of Limitations
Defendants contend that the complaint should be dismissed as barred by the applicable
statute of limitations. (Mem. of Law in Supp. of Defs.’ Mot. (“Defs.’ Mem.”) at 9-10, Doc.
Entry No. 22.) Section 1983 actions filed in New York are subject to a three-year statute of
limitations. Hogan v. Fischer, 738 F.3d 509, 517 (2d Cir. 2013). Thus, any of Plaintiff’s claims
that accrued more than three years before the complaint was filed must be dismissed. The
Second Circuit has held that “accrual occurs when the plaintiff knows or has reason to know of
the injury which is the basis of his action.” Id. at 518 (citing Pearl v. City of Long Beach, 296
F.3d 76, 80 (2d Cir. 2002)). The Defendants bear the burden of establishing that the limitations
period has expired since the Plaintiff’s claims accrued. Overall v. Estate of Klotz, 52 F.3d 398,
403 (2d Cir. 1995). In the context of a motion to dismiss based on a statute of limitations,
“dismissal is appropriate only if a complaint clearly shows the claim is out of time.” Harris v.
City of New York, 186 F.3d 243, 250 (2d Cir. 1999). Since Plaintiff filed this suit on November
15, 2012, claims that accrued before November 15, 2009 must be dismissed.
considers each of Plaintiff’s claims in turn.
Early termination claim
Defendants argue that Plaintiff’s early termination claim accrued on October 7, 2009,
when Plaintiff received a letter from Officer Staniszewski and William McCartney indicating
that Plaintiff was still subject to Parole supervision (the “Letter”). (Defs.’ Mem. at 10.) Plaintiff
argues that the Letter did not constitute a final decision regarding his early termination request,
noting that the Letter stated, “[t]here have been no early discharges at this point.” (Pl.’s Resp. at
9.) Reading Plaintiff’s submissions liberally, the Court construes Plaintiff’s early termination
request allegations as two distinct claims:
one regarding Defendant’s delay in deciding
Plaintiff’s request, and the other regarding Defendants denial of Plaintiff’s request. The Court
considers separately whether each is timebarred.
The Court finds that Plaintiff’s claim that Defendants delayed decision on his early
termination request accrued before November 15, 2009, and, therefore, is barred by the statute of
limitations. Plaintiff initially sought termination of his special parole conditions in February
2009. (Compl, ¶ 4.) Plaintiff understood that decisions were normally made within two weeks.
(Id. ¶ 5.) Plaintiff was aware that a decision had not yet been made in March and April of 2009,
and he finally wrote to Chairwoman Evans in August 2009 to inquire about the status of his
request. (Id. ¶¶ 6-10, 14.) Thus, it is clear from the complaint that Plaintiff had reason to know
that decision on his request was delayed no later than August 2009. Accordingly, Plaintiff’s
claim for relief based on Defendants’ delay in resolving his early termination request is
dismissed as time-barred.
However, Defendants have failed to establish that Plaintiff’s claim regarding the denial of
his early termination request is time-barred. On October 7, 2009, Plaintiff received a letter from
Officer Staniszewski and Bureau Chief William McCartney, stating, “[Y]ou are still subject to
[p]arole supervision. Your M.E. date is 3/5/12. There have been no early discharges granted at
this point.” (Id. ¶ 15.) It is not clear from the complaint whether this letter was a final denial of
Plaintiff’s request or whether his request was still under consideration at that juncture. Nor does
the record reflect communications from the Defendants, prior to November 15, 2009 or
otherwise, informing Plaintiff that his request was denied. Thus, Defendants have failed to bear
their burden of establishing that the Plaintiff knew or should have known that his early
termination request had been denied, as opposed to merely delayed, before November 15, 2009.
Accordingly, Plaintiff’s claim for relief based on Defendants’ denial of his early termination
request is not dismissed as time barred.
In sum, Plaintiff’s claim for relief based on Defendants’ delay in resolving his early
termination request is dismissed as time barred, but his claim that Defendants’ violated his rights
by denying his request is timely.
Diversion program claim
Defendants’ motion does not address whether Plaintiff’s diversion program claim is time
barred. (See Defs.’ Mem. at 9-10.) In their reply brief, however, Defendants argue that this
claim should be time barred because it “initially arose” from Defendants’ denial of Plaintiff’s
early termination request. (Defs.’ Reply at 3.) Defendants refer to Plaintiff’s contention that his
early termination claim is “inextricably intertwined” with his diversion program claim. (Pl.’s
Resp. at 10.) According to Plaintiff, Defendants could not have opposed his placement into the
judicial diversion program if they had granted his early termination request. (Id. at 10-11.)
As a preliminary matter, the Court need not address arguments made for the first time in
a reply brief. United States v. Yousef, 327 F.3d 56, 115 (2d Cir. 2003) (“We will not consider an
argument raised for the first time in a reply brief.”) Even if Defendants’ argument were not
waived, it would fail on the merits. Whether Plaintiff’s claims are factually linked is not
determinative of Plaintiff’s knowledge of the alleged injury. Plaintiff alleges that Defendants
Meeks and Staniszewski gave false information to the drug court in July 2010. Defendants have
not identified any earlier conduct that could have alerted Plaintiff of the alleged injury. Thus, the
Court finds that Plaintiff’s diversion program claim accrued after November 15, 2009.
Accordingly, Plaintiff’s diversion program claim is not time-barred.
Sentence miscalculation claim
Defendants do not address whether Plaintiff’s sentence miscalculation claim is barred by
the three-year statute of limitations. According to the complaint, Plaintiff wrote to Chairwoman
Evans seeking a certificate of discharge on his 2004 sentence for third degree robbery and third
degree burglary on November 23, 2010. (Compl. ¶ 22.) He received a letter indicating that he
could not be granted a notice of discharge because he had not completed his sentence on March
25, 2011. There is no indication that Plaintiff was aware of Defendants’ alleged miscalculation
until March 25, 2011. Accordingly, Plaintiff’s claim regarding the length of his sentence is not
barred by the statute of limitations.
Failure to State a Claim
Defendants also contend that the complaint should be dismissed for failure to state a
claim upon which relief may be granted.
(Defs.’ Mem. at 10-12.) However, defendants’
submissions do not adequately address this argument. Defendants’ twelve-page memorandum
devotes only one and one half pages to this issue, and it fails to address Plaintiff’s early
termination and sentence miscalculation claims. (Id.) Defendants’ reply memorandum devotes
only one paragraph to their motion to dismiss for failure to state a claim and is similarly
unhelpful. (Defs.’ Reply at 4-5.) Accordingly, Defendants’ motion for failure to state a claim is
denied as to Plaintiff’s early termination and sentence miscalculation claims.
With respect to the diversion program claim, the only one of Plaintiff’s claims that
Defendants even arguably touch upon, Defendants argue that: 1) the Second Circuit has not
recognized a due process right for an inmate to have allegedly incorrect information in his parole
file corrected; and 2) Plaintiff “concedes that his own [drug use] made him ineligible for any
Judicial Diversion Program that could have made him eligible for an early discharge.” (Defs.’
Mem. at 11-12.) As discussed above, Plaintiff seeks injunctive relief beyond having his parole
file corrected, as well as monetary damages against the Defendants in their personal capacities.
With respect to the argument that Plaintiff was ineligible for a diversion program, Defendants
have not demonstrated that prior drug use precluded participation in the diversion program, nor
is that clear from the face of the complaint.
Accordingly, Defendants’ motion to dismiss
Plaintiff’s judicial diversion claim is denied.
For the reasons set forth above, Plaintiff’s motion for reconsideration is denied.
Defendants’ motion to dismiss is granted to the extent that Plaintiff’s claim for relief based on
Defendants’ delay in resolving his early termination request is dismissed as time-barred. The
remainder of Defendants’ motion to dismiss is denied.
Dated: Brooklyn, New York
July 21, 2014
DORA L. IRIZARRY
United States District Judge
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