Rushion v. NYS Division of Parole et al

Filing 67

MEMORANDUM AND ORDER granting (50) Motion to Dismiss for Failure to State a Claim in case 1:13-cv-04277-RRM-LB: For the reasons stated in the attached Memorandum and Order, Plaintiff's claims against defendants McQuade and Gulley under sectio n 1983 are dismissed. Plaintiff's claims against defendant Brian Fuller shall proceed pursuant to the schedule previously set by the Court. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and in forma pauperis status is therefore denied for the purpose of any appeal. The Clerk of Court is directed to terminate Gulley and McQuade as parties from this action, to mail a copy of this Memorandum and Order to pro se plaintiff, and to note the mailing on the docket. Ordered by Judge Roslynn R. Mauskopf on 9/15/2015. Associated Cases: 1:13-cv-04277-RRM-LB, 1:13-cv-07083-RRM-LB (Mauskopf, Roslynn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
X
ANDRE J. RUSHION,
Plaintiff,
MEMORANDUM
AND ORDER
13-CV-4277 (RRM)(LB)

- against NYS DIVISION OF PAROLE, administrative
hearing officer; BRIAN FULLER, Parole Officer;
JOHN DOE #1, Queens General Nurse; JOHN
DOE #2, Queens General Officer; JOHN DOE #3,
Queens General Officer; JOHN DOE #4, Queens
General Officer; KAREN McQUADE,
Transcript Stenographer; PRS DEBORAH
GULLEY,
Defendants.
X
ROSLYNN R. MAUSKOPF, United States District Judge:

Plaintiff pro se brings this action pursuant to section 1983 of Title 42 of the United States
Code (“section 1983”) alleging defendants violated his constitutional rights. Defendant Deborah
Gulley moved to dismiss, arguing that plaintiff failed to state a claim against her upon which
relief could be granted. As a Parole Revocation Specialist, Gulley is entitled to absolute
immunity, and plaintiff’s claim against her must be dismissed. Furthermore, on October 21,
2014, Assistant Attorney General Neil Shevlin informed the Court that defendant Karen
McQuade (“McQuade”) is a stenographer employed by a private transcription firm that contracts
with the New York State Department of Corrections and Community Supervision (“DOCCS”).
(See “Shevlin letter” (Doc. No. 52).) Because McQuade is not a state actor, she is not liable
under section 1983, nor has plaintiff pled any facts to suggest that McQuade has violated
plaintiff’s rights.

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STANDARD OF REVIEW
To withstand a motion under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the
complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that
is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 570 (2007)); Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010).
Although the complaint need not contain “‘detailed factual allegations,’” simple “[t]hreadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555); Harris v. Mills, 572 F.3d 66,
72 (2d Cir. 2009). Rather, the complaint must include “enough facts to state a claim to relief that
is plausible on its face,” Twombly, 550 U.S. at 570, which means “factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 570).
The Court is also mindful, however, that plaintiff is proceeding pro se. As such, his
complaint is held to a less exacting standard than a complaint drafted by an attorney. See Haines
v. Kerner, 404 U.S. 519, 520–21 (1972); Boykin v. KeyCorp, 521 F.3d 202, 213–14 (2d Cir.
2008) (citation omitted). Because pro se litigants “are entitled to a liberal construction of their
pleadings,” the Court reads plaintiff’s complaint to “raise the strongest arguments that [it]
suggest[s].” Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001) (internal citations omitted).
Nonetheless, the Court “need not argue a pro se litigant’s case nor create a case for the pro se
which does not exist.” Molina v. New York, 956 F. Supp. 257, 259 (E.D.N.Y. 1995). Where a
pro se plaintiff has altogether failed to satisfy a pleading requirement, the Court must dismiss the
claim. See Rodriguez v. Weprin, 116 F.3d 62, 65 (2d Cir. 1997) (citation omitted). Although
courts must read pro se complaints with Aspecial solicitude@ and interpret them to raise the

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Astrongest arguments that they suggest,@ Triestman v. Federal Bureau of Prisons, 470 F.3d 471,
474–76 (2d Cir. 2006) (internal quotation marks omitted), a complaint must plead “enough facts
to state a claim to relief that is plausible on its face.@ Twombly, 550 U.S. at 570.
DISCUSSION
A. Defendant Deborah Gulley
In its September 25, 2013 Order, this Court noted that plaintiff’s Order to Show Cause
identified Gulley as a Parole Revocation Specialist (“PRS”), and in light of plaintiff’s pro se
status, construed this allegation as incorporated in plaintiff’s complaint. (See Doc. No. 9 at 5.)
However, parole officers “receive absolute immunity for their actions in initiating parole
revocation proceedings and in presenting the case for revocation to hearing officers, because
such acts are prosecutorial in nature.” Scotto v. Almenas, 143 F.3d 105, 112 (2d Cir. 1998)
(collecting cases). Plaintiff claims that Gulley violated his rights when, acting as a de facto
prosecutor during a parole revocation hearing, she refused to allow him to present certain
evidence. (See Doc. No. 9 at 5.) Under Scotto, Gulley is immune from such a claim, and
plaintiff’s claim against her must be dismissed.
B. Defendant Karen McQuade
In order to maintain a section 1983 action, a plaintiff must allege both that the conduct
complained of was “committed by a person acting under color of state law@ and “deprived a
person of rights, privileges or immunities secured by the Constitution or laws of the United
States.” Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994). Plaintiff alleges that McQuade
“altered and falsified” records in this case. (Compl. (Doc. No. 3) at 11.1)

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For ease of reference, the Court will refer to the ECF pagination.

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McQuade does not act under color of state law within the meaning of section 1983. She is
not a state employee; rather, she is an employee of a private company: The Mechanical
Secretary, located in Forest Hills, New York. (Shevlin letter.) According to the Shevlin letter,
“DOCCS has contracted with this company to transcribe audio recordings of parole hearings. . . .
the stenographers who work for this company do not physically go to Rikers Island to transcribe
hearings. Rather, when hearings are recorded, they will, at a later time, transcribe the
proceedings upon request.” (Id.)
Private conduct, no matter how discriminatory or wrongful, is generally beyond the reach
of section 1983. Brentwood Academy v. Tennessee, 531 U.S. 288, 304–05 (2001) (discussing
whether athletic association was state actor within reach of § 1983); Rendell-Baker v. Kohn, 457
U.S. 830, 838–42 (1982) (affirming dismissal of § 1983 claim because defendants not state
actors); Flagg Bros. Inc. v. Brooks, 436 U.S. 149, 155–57 (1978) (stating § 1983 reaches only
deprivations of rights by persons acting under color of law); Moose Lodge No. 107 v. Irvis, 407
U.S. 163, 173 (1972) (distinguishing private conduct from state action); Hieshetter v. Sawyer,
No. 14–CV–0176, 2014 WL 1875119, at *5 (W.D. Mich. May 8, 2014) (“A court reporter
employed by the state acts under color of state law, while independent contractors do not.”);
Burroughs v. Dorn, No. 13–CV–3609, 2013 WL 3820673, at * 4 (E.D.N.Y. July 22, 2013) (a
court reporting and transcription firm utilized in traffic violations hearings before the Department
of Motor Vehicles is a private corporation, not a state actor); Yevstifeev v. Steve, 730 F.Supp.2d
308, 310–11 (W.D.N.Y. 2010) (defendant freelance court reporter’s alleged alterations in
transcripts and delay in supplying them to arrestee did not constitute state action, because the
court reporter was not employed by the state unified court system).

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Moreover, plaintiff has failed to plead any facts to suggest how McQuade, as a
transcriber of plaintiff’s parole hearing, violated plaintiff’s rights. For this reason as well,
plaintiff’s claims against McQuade must fail.
Plaintiff’s complaint therefore fails to state a claim against McQuade, and the Court must
therefore dismiss the claim against her under 28 U.S.C. §1915(e)(2)(B)(ii).
CONCLUSION
Plaintiff=s claims against defendants McQuade and Gulley under section 1983 are
dismissed. Plaintiff’s claims against defendant Brian Fuller shall proceed pursuant to the
schedule previously set by the Court. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that
any appeal would not be taken in good faith and in forma pauperis status is therefore denied for
the purpose of any appeal. Coppedge v. United States, 369 U.S. 438, 444–45, (1962).
The Clerk of Court is directed to terminate Gulley and McQuade as parties from this
action, to mail a copy of this Memorandum and Order to pro se plaintiff, and to note the mailing
on the docket.
SO ORDERED.
Roslynn R. Mauskopf
Dated: Brooklyn, New York
September 15, 2015

____________________________________
ROSLYNN R. MAUSKOPF
United States District Judge

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