Bonano v. Staniszewski et al
Filing
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ORDER granting 3 Motion for Leave to Proceed in forma pauperis, Dismissing certain Claims, and Ordering Issuance of Summons and Service of the Summons and Complaint - Plaintiff's motion for leave to proceed in forma pauperis is grante d. Pursuant to 28 U.S.C. 1915, while proceeding in forma pauperis, Plaintiff must pay the total $350 fee by monthly installments deducted from his prison trust fund account (or institutional equivalent).For the reasons set forth in the A TTACHED WRITTEN MEMORANDUM AND ORDER, Plaintiff's claims for monetary damages are dismissed pursuant to 28 U.S.C. § 1915A(b). The summons shall issue, and the United States Marshals Service is directed to serve the summons and complaint on the named defendants. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and, therefore, in forma pauperis status is denied for purposes of an appeal. See Coppedge v. United State s, 369 U.S. 438, 444-45 (1962). The Clerk of the Court is directed to mail a copy of this Electronic Order and the Attached Written Memorandum and Order to pro se plaintiff. SO ORDERED by Judge Dora Lizette Irizarry on 8/29/2013. (Irizarry, Dora)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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MICHAEL BONANO, pro se,
:
:
Plaintiff,
:
:
-against:
:
ILENE STANISZEWSKI, Senior Parole:
Officer, Brooklyn II Parole Bureau; WILLIAM:
McCARTNEY, Bureau Chief, Brooklyn II:
Parole Bureau; ANDREA W. EVANS,:
Chairwoman, NY State Division of Parole;:
TERRENCE X. TRACY, Chief Counsel, NY:
State Division of Parole; AMANDA MEEKS,:
Drug Treatment Court Case Manager;:
FRANCIS J. CARUSO, Assistant Director of:
Operations, NY State Division of Parole; and:
NY STATE DIVISION OF PAROLE,
:
:
Defendants.
:
:
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MEMORANDUM AND ORDER
12-CV-5879 (DLI) (LB)
DORA L. IRIZARRY, U.S. District Judge:
Michael Bonano (“Plaintiff”), who is incarcerated at Cayuga Correctional Facility, filed
this pro se 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. Plaintiff’s motion for leave to proceed in forma pauperis is granted.
Pursuant to 28 U.S.C. 1915, while proceeding in forma pauperis, Plaintiff must pay the total
$350 fee by monthly installments deducted from plaintiff's prison trust fund account (or
institutional equivalent). For the reasons set forth below: (1) Plaintiff’s claims for money
damages against the Division of Parole and the individual defendants in their official capacities
are dismissed; and (2) to the extent that Plaintiff seeks prospective injunctive relief against the
Division of Parole, that claim may proceed.
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BACKGROUND
The following details are set forth in Plaintiff’s complaint and prior actions. 1 In March
2004, Plaintiff was convicted of third degree robbery and third degree burglary and sentenced to
a term of imprisonment. 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.
I.
Early Termination of Parole
In February 2009, Plaintiff sought early termination of his parole conditions. (Compl. ¶
4.) During that month, Steve McClymont, Plaintiff’s parole officer at the Brooklyn reporting
office, submitted an early termination request on Plaintiff’s behalf to the central office of the
New York Division of Parole. (Id.) McClymont purportedly informed Plaintiff that similar early
termination requests were granted in two weeks. (Id. ¶ 5.) 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 of the Division of Parole in Albany, to inquire about its status.
(Id. ¶ 14.) On October 7, 2009, Plaintiff received a response from 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.)
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Plaintiff has filed prior actions, in this Court and others, under the names Michael Bonano,
Anthony Cusamano, and Anthony Armatullo. See, e.g., Cusamano v. Alexander, No. 08 CV
781(DNH)(ATB); Cusamano v. Sobek, 604 F. Supp. 2d 416 (N.D.N.Y. 2009); Cusamano v.
Donelli, 2007 WL 7216166 (S.D.N.Y. Dec. 19, 2007); Armatullo v. Taylor, 2005 WL 2386093
(S.D.N.Y. Sept. 28, 2005).
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II.
Diversion Program
On May 6, 2009, while Plaintiff’s request for early termination of parole was still
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/revocation proceedings were commenced. (Id. ¶¶ 12-13,
28.) On June 18, 2010, the Honorable Richard D. Carruthers of New York State Supreme Court,
New York County, transferred Plaintiff to the Manhattan Drug Treatment Court to determine
Plaintiff’s eligibility for a Judicial Diversion Program. (Id. ¶ 31.) According to Plaintiff,
defendants Amanda Meeks and Staniszewski relied upon and gave false information to the
Manhattan Treatment Court and opposed Plaintiff’s participation in the Judicial Diversion
Program. (Id. ¶¶ 32-36, 40-42.) 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 on July 14, 2010. (Id. ¶ 43.) Thereafter, on March 31, 2011, Plaintiff
was convicted and sentenced to two consecutive terms of imprisonment of from 3 to 6 years. (Id.
¶ 56.)
III.
The Complaint
Plaintiff asserts fifteen “Causes of Action” against different combinations of the named
defendants. (Compl. at 23-26.) The Complaint separately includes: (1) a “First Claim,” which
summarizes Plaintiff’s causes of action related to the “delayed,” “obscure[d],” and “denied”
early termination application; and (2) a “Second Claim,” which details Plaintiff’s causes of
action related to his eligibility for the Diversion Program. (Id. at 27-28.) Plaintiff also 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 me to participate or
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enroll in drug treatment upon my eventual release to parole supervision.” (Id. at 29.)
DISCUSSION
I.
Standard of Review
Title 28 of the United States Code § 1915A requires this Court to review the complaint in
a civil action in which a prisoner seeks redress from a governmental entity or from officers or
employees thereof, and to “identify cognizable claims or dismiss the complaint, or any portion of
the complaint, if the complaint is frivolous, malicious, or fails to state a claim upon which relief
may be granted or seeks monetary relief from a defendant who is immune from such relief.” 28
U.S.C. § 1915A(b); see also Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). “A document
filed pro se is to be liberally construed, and a pro se complaint, 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) (internal quotation marks and citations omitted). If a liberal
reading of the complaint “gives any indication that a valid claim might be stated,” this Court
must grant leave to amend the complaint. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.
2000).
II.
Claims for Money Damages
The Eleventh Amendment to the U.S. Constitution bars suits for compensatory or other
retroactive relief against states, state agencies, and state officials sued in their official capacities
absent their consent to such suits or an express statutory waiver of immunity. Bd. of Trs. of
Univ. of Ala. v. Garrett, 531 U.S. 356, 363 (2001); Will v. Mich. Dep’t of State Police, 491 U.S.
58, 66, 71 (1989); Kentucky v. Graham, 473 U.S. 159, 166 (1985). “New York has not waived
its immunity as to suits seeking either monetary or injunctive relief in federal court, . . . nor has
Congress abrogated such immunity.” Dudley v. Meekins, 2013 WL 1681898, at *2 (E.D.N.Y.
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Apr. 17, 2013) (citation and internal quotations omitted). Thus, as an agency or arm of the State
of New York, the Division of Parole is immune from suit under the Eleventh Amendment. See
McCloud v. Jackson, 4 F. App’x 7, 10 (2d Cir. 2001) (dismissing plaintiff’s claims against New
York State Division of Parole because “the Eleventh Amendment bars suits against states and
state agencies”); Coleman v. City of N.Y., 2009 WL 705539, at *4 (E.D.N.Y. Mar. 16, 2009)
(“The Eleventh Amendment bars plaintiff’s § 1983 suit against the New York State Division of
Parole as it is a state agency.”); Heba v. N.Y. State Div. of Parole, 537 F. Supp. 2d 457, 471
(E.D.N.Y. 2007) (barring Section 1983 action against New York State Division of Parole on the
basis of Eleventh Amendment sovereign immunity).
The Eleventh Amendment also “operates to prevent recovery against state employees
sued in their official capacity for money damages.” Singleton v. Fischer, 2013 WL 1339051, at
*2 (S.D.N.Y. Apr. 3, 2013) (citing Will, 491 U.S. at 58). Thus, Plaintiff’s claims for monetary
damages against New York State officials sued in their official capacities are dismissed with
prejudice. 2
III.
Prospective Injunctive Relief
Liberally construing the complaint, Plaintiff apparently claims that the Division of Parole
acted arbitrarily and capriciously based, in part, on false and inaccurate information contained in
Plaintiff’s parole records. (Compl. ¶¶ 40-45.) Courts have recognized that individuals may have
a constitutional right to have incorrect information expunged from parole files. Foster v. N.Y.C.
Prob. Dep’t., 2013 WL 1342259, at *5 (E.D.N.Y. Mar. 7, 2013) (“[A]ssuming plaintiff has a
constitutional right to have incorrect information expunged from his file, he appears to have
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The Court need not determine at this juncture whether Plaintiff’s claims may be time-barred.
See Abbas v. Dixon, 480 F.3d 636, 640-42 (2d Cir. 2007) (finding district court erred in
dismissing sua sponte Section 1983 claims as time-barred without granting prisoner-plaintiff
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adequately pled such a claim.”); Lowrance v. Coughlin, 862 F. Supp. 1090, 1119-20 (S.D.N.Y.
1994) (recognizing a right to a new parole hearing “based on accurate information”); Farinaro v.
Coughlin, 642 F. Supp. 276, 281-82 (S.D.N.Y. 1986) (recognizing a “limited constitutional right
to have incorrect information expunged from [the] record” where such information is relied upon
to deny parole). Accordingly, to the extent that Plaintiff seeks prospective injunctive relief, inter
alia, to correct his parole file, this claim may proceed. See Fulton v. Goord, 591 F.3d 37, 45 (2d
Cir. 2009) (noting that suits for prospective injunctive relief are not barred by the Eleventh
Amendment).
CONCLUSION
For the reasons set forth above, Plaintiff’s claims for monetary damages are dismissed
pursuant to 28 U.S.C. § 1915A(b). The summons shall issue, and the United States Marshals
Service is directed to serve the summons and complaint on the named defendants. The Court
certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and,
therefore, in forma pauperis status is denied for purposes of an appeal. See Coppedge v. United
States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.
Dated: Brooklyn, New York
August 29, 2013
/s/
DORA L. IRIZARRY
United States District Judge
notice and opportunity to be heard).
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