Trisvan v. Annucci et al
Filing
118
MEMORANDUM & ORDER: Accordingly, because the issue was not raised by Defendants, the Court declines to consider whether Annucci and Gaynor are entitled to qualified immunity for Plaintiff's First Amendment retaliation cla im. The Court grants in part and denies in part Defendants' 112 motion to dismiss. The Court denies the motion as to Plaintiff's First Amendment retaliation claim against Annucci and Gaynor. The Court grants the motion as to all o ther remaining claims and dismisses those claims without leave to amend. SO ORDERED by Judge Margo K. Brodie, on 5/30/2019. (Copy of this Order and the attached copies of all unreported cases cited herein sent to pro se Plaintiff.) (Latka-Mucha, Wieslawa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------JOHN TRISVAN,
Plaintiff,
MEMORANDUM & ORDER
14-CV-6016 (MKB)
v.
ANTHONY ANNUCCI, Commissioner of the New
York State Division of Parole, LETRICIA
MCCLEARY, Senior Parole Officer for Brooklyn
V Area Office, ANNE GOULD, YVONNE KING,
VIKKY URENA, A. GAYNOR, AUDREY
THOMPSON, JOHN DOE, NIGEL JOSEPH, HAL
WILKERSON, Parole Officers for Brooklyn V
Area Office, ANDREA EVANS, Former Chair of
the New York Parole Board (20092013), and
TINA STANFORD, Present Chair of the New York
Parole Board (2013Present),
Defendants.
--------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
Plaintiff John Trisvan, proceeding pro se, commenced the above-captioned action on
October 14, 2014 against Defendants Anthony Annucci, Acting Commissioner of the New York
State Department of Corrections and Community Supervision (“DOCCS”),1 Letricia McCleary,
Audrey Thompson, Hal Wilkerson, Senior Parole Officers, Ivy Gaynor, Anne Gould, and
Yvonne King, Parole Officers of the “Brooklyn Area Office,” and Nigel Joseph, Regional
Director and former Bureau Chief Officer, challenging the conditions of his parole and seeking
relief pursuant to 42 U.S.C. § 1983. (Compl. 1, Docket Entry No. 1.) Plaintiff subsequently
1
Since the commencement of this action, the Department of Correctional Services and
Department of Parole have merged to form the new entity, DOCCS. (See Defs. Mem. in Supp.
of Defs. Mot. (“Defs. Mem.”) 1 n.1, Docket Entry No. 113.)
amended the complaint four times, adding new claims and defendants. (See Am. Compl. 1,
Docket Entry No. 6; Second Am. Compl. (“SAC”) 2–4, Docket Entry No. 15; Third Am. Compl.
(“TAC”) 5, Docket Entry No. 57; Fourth Am. Compl. (“FAC”) 2, Docket Entry No. 81.)
Plaintiff filed the FAC on February 8, 2018, which largely mirrors the prior complaints but
provides some additional facts about Plaintiff’s prior criminal conviction and parole supervision,
and adds Joseph, Thompson, Wilkerson, and John Doe as Defendants. (FAC 1–2.)
Currently before the Court is Defendants’ motion to dismiss the FAC for failure to state a
claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Defs. Mot. to Dismiss
FAC (“Defs. Mot.”), Docket Entry No. 112; Defs. Mem in Supp. of Defs. Mot. (“Defs. Mem”),
Docket Entry No. 113.) Plaintiff opposes the motion. (Pl. Opp’n to Defs. Mot. (“Pl. Opp’n”),
Docket Entry No. 111.) For the reasons set forth below, the Court grants in part and denies in
part Defendants’ motion to dismiss.
I.
Background
a. Factual background
On January 12, 1997, during the early morning hours, Plaintiff accompanied his friend,
Jermaine Cross, to a housing complex in Brooklyn, New York to confront an individual named
Raheem Slaughter. (FAC 2.) When Plaintiff and Cross found Slaughter at the complex, Cross
and Slaughter began to argue. (Id.) Moments after, “shots were fired” and Cross and Plaintiff
fled the scene on foot. (Id.) Cross and Plaintiff were arrested on January 17, 1997 and May 12,
1997, respectively. (Id.) Plaintiff was later convicted of manslaughter in the first degree and
served fourteen years at the Great Meadow Correctional Facility. (Id.)
Plaintiff was granted parole on September 27, 2011. (Id.) Gould, Plaintiff’s initial parole
supervisor, informed Plaintiff of the conditions of his parole, which included:
2
a) curfew between the hours of 9 p.m. and 7 a.m.;
b) no use of alcohol or [attendance] in an establishment where
alcohol is [the] main level of business;
c) no fraternizing or being in the company of convicted
felons/felony offenders;
d) no travel outside of the City of New York or New York State;
e) cannot operate a vehicle or have possession of a driver’s license;
f) cannot possess a firearm or sharp instrument that can be used and
ruled as a weapon.
(Id. at 2–3.) King subsequently replaced Gould as Plaintiff’s parole supervisor, and informed
Plaintiff that he remained subject to the same conditions of release. (Id.) King also informed
Plaintiff that the release conditions were imposed by Commissioner Annucci, who forwarded
them to King’s supervisor, McCleary. (Id.) Plaintiff alleges that the conditions of parole left
him “unable to fully practice his religion of Islam” because he has been “denied the ability to
perform the [five] obligatory congregational prayers throughout the day and night at the mosque,
which as a Muslim male he is required to do, as well as, make ‘Haji[,]’ a pilgrimage to Mecca.”
(Id.) Plaintiff also contends that his conditions of parole have prevented him from exercising his
“right to associate freely with other members of his community,” vote in elections,2 and
“strength[en] ties with his family and friends.” (Id.)
In approximately March of 2015, Urena replaced King as Plaintiff’s parole supervisor.
(Id.) Plaintiff was informed that he needed to submit a request to travel outside of New York
City. (Id.) Sometime thereafter, Plaintiff requested permission to travel to Albany, New York
and Urena’s supervisor, Parole Officer John Doe, informed Plaintiff that he would have to
provide documentation detailing his lodging and transportation arrangements.3 (Id. at 3–4.)
2
On May 22, 2018, New York State Governor Andrew Cuomo issued Plaintiff a
conditional pardon, restoring Plaintiff’s right to vote. See Trisvan v. Annucci, No. 14-CV-6016,
2018 WL 5791915, at *2 (E.D.N.Y. Nov. 5, 2018).
3
Plaintiff does not specify when he made his travel request.
3
Plaintiff also spoke to Urena about his intention to reside in Albany, New York to pursue higher
education and to visit two college campuses in May of 2015. (Id. at 3.) Plaintiff provided the
requested information, and Urena and John Doe spoke to Plaintiff’s fiancé, who “corroborated
Plaintiff’s statements” and informed them that she “was granting Plaintiff permission to stay at
her home the week at which the colleges were having open house.” (Id. at 3–4.) Approximately
two weeks later, Plaintiff’s travel request was denied. (Id. at 4.) Plaintiff subsequently filed “a
complaint to Defendants Annucci and Evans . . . making them aware of this injustice.”4 (Id.) On
July 27, 2015, Steven A. Claudio, Assistant Commissioner for Community Supervision,
informed Plaintiff that, “in regards to his grievance complaint,” Urena and John Doe denied his
travel request because it was “too vague” and “inconsistent.” (Id.)
On or about July 10, 2015, Plaintiff provided Gaynor, who replaced Urena as Plaintiff’s
parole supervisor in June of 2015, with a request to travel to Albany for the purpose of attending
“two open house meetings and an informational session at Sage College, and College of Saint
Rose,” on Friday, July 31, 2015. (Id.) Plaintiff also requested that his parole supervision be
transferred to Albany. (Id.) Plaintiff’s requests “were deferred.” (Id.) Plaintiff alleges that
Gaynor and Bureau Chief Joseph threatened “to not even hear or even ‘consider’ future travel
requests submitted by Plaintiff if he decided to report future denials to their superiors in the
Central Office.” (Id.)
Although his travel request was eventually granted in August of 2015, Plaintiff alleges
that he was stripped of his “level three” status in late June of 2015, in retaliation for his
4
Plaintiff also alleges that he “filed a grievance to Central Office in Albany, New York.”
(FAC 4.) This grievance appears to be the same complaint he filed with Annucci and Evans.
(Id. (stating that Plaintiff received “word from Central Office . . . in regards to his grievance
complaint”).)
4
grievance complaint. (Id.) As a result of his now “level one” status, Plaintiff must report to his
parole officer every two weeks instead of once every two months. (Id.) Plaintiff also alleges
that he has had to agree to these conditions each time he has been assigned a new parole officer.
(Id.) According to Plaintiff, he has “completed all recommended programs, passed all urinalysis
tests” and has “avoid[ed] run-ins with the law.” (Id.)
b. Procedural background
The Court assumes familiarity with the procedural background as detailed in its prior
Memorandum and Order dated January 9, 2018 (the “January 2018 Decision”), and provides
only a summary below. See Trisvan v. Annucci, 284 F. Supp. 3d 288, 294 (E.D.N.Y. 2018).
In the TAC, Plaintiff repeated his prior assertions that the release conditions violate
multiple constitutional amendments. (TAC 5.) Plaintiff did not provide any facts underlying his
crime of conviction or allegations as to why the release conditions were unreasonable or
unnecessary. (See generally id.) Instead, Plaintiff included allegations that the restriction on
alcohol consumption violates his rights under the Twenty-First Amendment and that his right to
vote was infringed in violation of the Fifteenth Amendment. (Id.)
In the January 2018 Decision, the Court dismissed Plaintiff’s TAC but granted Plaintiff
leave to file a fourth and final amended complaint. Trisvan, 284 F. Supp. at 293. The Court
instructed Plaintiff to “provide . . . facts underlying his crime of conviction and explain why his
release conditions are unreasonable or unnecessary in light of those facts.” Id. at 304 (quoting
Trisvan v. Annucci (“Trisvan II”), No. 14-CV-6016, 2016 WL 7335609, at *5 (E.D.N.Y. Dec.
16, 2016).) The Court specifically advised Plaintiff that he “must . . . describe in detail the facts
underlying his crime of conviction as found at trial and also, more importantly, explain why the
parole conditions are unreasonable or unnecessary despite the actions for which he was
5
convicted.” Id. The Court also informed Plaintiff that “[f]or all potential claims, Plaintiff should
provide any details about any accommodations he requested and the responses he received,
including the proffered reasons.” Id.
Plaintiff filed the FAC on February 8, 2018. (FAC.) In the FAC, as detailed above,
Plaintiff added some details concerning his conviction, travel requests, his grievance to the
“Central Office,” comments from his parole officers, and the approximate date on which
Defendants altered his reporting requirements.
II. Discussion
a.
Standard of review
In reviewing a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, a court must construe the complaint liberally, “accepting all factual allegations in the
complaint as true and drawing all reasonable inferences in the plaintiff’s favor.” Concord
Assoc’s, L.P. v. Entm’t Prop. Trust, 817 F.3d 46, 52 (2d Cir. 2016) (quoting Chambers v. Time
Warner Inc., 282 F.3d 147, 152 (2d Cir. 2002)); see also Tsirelman v. Daines, 794 F.3d 310, 313
(2d Cir. 2015) (quoting Jaghory v. N.Y. State Dep’t of Educ., 131 F.3d 326, 329 (2d Cir. 1997)).
A complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible “when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d Cir. 2011) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)); see also Pension Ben. Guar. Corp. ex rel. St.
Vincent Catholic Med. Ctrs. Ret. Plan v. Morgan Stanley Inv. Mgmt. Inc., 712 F.3d 705, 717–18
(2d Cir. 2013). Although all allegations contained in the complaint are assumed to be true, this
tenet is “inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. In reviewing a pro se
6
complaint, the court must be mindful that a plaintiff’s pleadings should be held “to less stringent
standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 104–05 (1976)); see Harris v. Mills, 572
F.3d 66, 72 (2d Cir. 2009) (noting that even after Twombly, the court “remain[s] obligated to
construe a pro se complaint liberally”). Thus, courts must liberally construe papers submitted by
pro se litigants “to raise the strongest arguments they suggest.” Wiley v. Kirkpatrick, 801 F.3d
51, 62 (2d Cir. 2015).
b.
Plaintiff fails to allege that the release conditions are not “reasonably and
necessarily” related to legitimate state interests in light of his conviction
Defendants argue that Plaintiff fails to allege facts sufficient to show that the special
parole conditions are arbitrary and capricious. (Defs. Mem. 9.)
Plaintiff asserts that the restrictions are unconstitutional and that Defendants have
violated his constitutional rights by enforcing them. (Pl. Opp’n 2 (“It has been noted that
Plaintiff’s constitutional rights are not unfettered . . . . These rights were deemed by the framers .
. . as ‘inalienable.’”).) In addition, Plaintiff argues that his crime of conviction did not involve
alcohol or travel and that therefore Defendants may not subject him to any restriction on his right
to purchase and consume alcohol or his right to travel. (FAC 7.) Plaintiff also argues that he has
“served his time,” and therefore should not be subject to any further supervision. (Id.) Lastly,
Plaintiff asserts that the restrictions are unnecessary because he has been a “law-abiding citizen”
since his release and the conditions do not promote his rehabilitation. (Id. at 8–9.).
As the Court explained in its prior decision, parolees may be subject to “restrictions not
applicable to other citizens.” Trisvan, 284 F. Supp. 3d at 296 (quoting Trisvan II, 2016 WL
7335609, at *3 (citation omitted)). Fundamental constitutional rights may be abridged to serve
reasonable and necessary penological interests. Courts, in the context of parolees, have
7
expressly allowed limitations of the very constitutional rights on which Plaintiff bases his claims.
See Birzon v. King, 469 F.2d 1241, 1243 (2d Cir. 1972) (upholding parole condition placing
limitations on the fundamental right of freedom of association protected by the First
Amendment); Robinson v. New York, No. 09-CV-0455, 2010 WL 11507493, at *4 (N.D.N.Y.
Mar. 26, 2010) (finding that the imposition of parole conditions “do[] not implicate the Double
Jeopardy Clause because they are not additional to but rather are part of the original sentence”);
id. at *5 (finding that “drug testing, a curfew, . . . home visits, surrender [of] driver’s license,”
and other common parole conditions did not constitute “sufficiently grave [deprivations] to form
the basis of an Eight Amendment violation” (citation omitted)); Watson v. Cieslak, No. 09-CV2073, 2010 WL 93163, at *5 (S.D.N.Y. Jan. 11, 2010) (finding that the denial of a travel pass did
not violate the parolee’s constitutional rights); Rizzo v. Terenzi, 619 F. Supp. 1186, 1189
(E.D.N.Y. 1985) (holding that an “individual’s [constitutionally protected] right to travel,
extinguished by conviction and subsequent imprisonment, is not revived upon parole”). Further,
statutes eliminating the right of felons to bear arms or vote have been upheld as constitutional.5
See District of Columbia v. Heller, 554 U.S. 570, 626–27 (2008) (“[N]othing in our opinion
should be taken to cast doubt on longstanding prohibitions on the possession of firearms
by felons . . . .”); Richardson v. Ramirez, 418 U.S. 24, 56 (1974) (holding that it would be
“consistent with the Equal Protection Clause of the Fourteenth Amendment” for convicted
felons, even those “who have completed their sentences and paroles,” to be “exclude[d] from the
5
The Court previously found that Plaintiff’s claims based on the Ninth, Fifteenth, and
Twenty-first Amendments are misplaced. See Trisvan v. Annucci, 284 F. Supp. 3d 288, 299 n.5
(E.D.N.Y. 2018) (finding that there is no fundamental right to consume alcohol, that the Ninth
Amendment is not an independent source of rights, and that the Fifteenth Amendment does not
protect Plaintiff against the allegations raised in his complaint).
8
franchise”); New York State Rifle & Pistol Ass’n, Inc. v. Cuomo, 804 F.3d 242, 261 n.107 (2d
Cir. 2015) (“States are permitted to restrict the right to bear arms by felons . . . [even] while
equivalent restrictions on the right to speech or religious freedoms among those populations
would unquestionably be unconstitutional.”).
Generally, “the imposition of conditions — whether imposed prior to or subsequent to
release, by the parole board or a field parole officer — must be upheld as long as they are
reasonably related to a parolee’s past conduct, are not arbitrary and capricious, and are designed
to deter recidivism and prevent further offenses.” Singleton v. Doe, No. 14-CV-0303, 2014 WL
3110033, at *3 (E.D.N.Y. July 7, 2014) (quoting Robinson, 2010 WL 11507493, at *14);
Robinson, 2010 WL 11507493, at *6 (“[W]here the condition is not related to the parolee’s
criminal history or to the State’s interests, it may be prone to tailoring or invalidation.”).
In light of Plaintiff’s conviction for manslaughter, the special conditions appear to be, as
argued by Defendants, “reasonably designed to limit Plaintiff’s exposure to activities and
associations that could tend to lead him back into a life of crime.” (Defs. Mem. 7.) Plaintiff
was convicted of first-degree manslaughter. (FAC 2.) Plaintiff entered a housing development
and shot and killed the victim during early morning hours. (Id.) After shooting the victim,
Plaintiff fled and was arrested approximately four months later. (Id.) Based on these facts, as
alleged by Plaintiff in the FAC, the Court cannot conclude that any of the special conditions are
unreasonable or unnecessary. As the Court previously found, the violent nature of the crime
supports limiting access to weapons, traveling, and access to vehicles, and Plaintiff’s ability to
hold a driver’s license may also be curtailed given Plaintiff’s exhibited willingness to flee
authorities. Trisvan, 284 F. Supp. 3d at 299.
Plaintiff asserts that his conditions of parole are arbitrary and capricious because they
9
prevent his rehabilitation and prevent him from gaining access to certain employment such as a
commercial driver or forklift operator. (FAC 6.) However, the restrictions on possessing a
driver’s license and operating a vehicle, in conjunction with the travel restriction, may assist
parole officers in monitoring Plaintiff’s activities, which is a legitimate penological objective.
See Muhammad v. Jenkins, No. 12-CV-8525, 2014 U.S. Dist. LEXIS 158481, *18 (S.D.N.Y.
Nov. 4, 2014) (“New York has a particular interest in monitoring individuals on supervised
release because parolees are particularly likely to commit criminal offenses.”); see also
Morrissey v. Brewer, 408 U.S. 471, 478 (1972) (“Typically, [parolees] must seek permission
from their parole officers before engaging in specified activities, such as . . . acquiring or
operating a motor vehicle . . . .”). In addition, although Plaintiff only appears to hypothesize
about careers that may be impacted, conditions impacting employment are not only common, but
generally upheld. See Morrissey, 408 U.S. at 478 (recognizing that parolees “[t]ypically . . .
must seek permission from their parole officers before engaging in specified activities, such as
changing employment”).
Lastly, because Plaintiff committed the crime within the early morning hours, a curfew
may be especially reasonable in this case, and conditions limiting association with criminals or
visits to establishments serving alcohol also appear designed to prevent recidivism in general.
See Morrissey v. Brewer, 408 U.S. 471, 478 (1972) (“Typically, parolees are forbidden to use
liquor or to have associations or correspondence with certain categories of undesirable
persons.”).
Accordingly, Plaintiff’s challenge to the release conditions fails to state a claim upon
which relief can be granted. See Pollard v. U.S. Parole Comm’n, No. 15-CV-9131, 2016 WL
4290607, at *12 (S.D.N.Y. Aug. 11, 2016) (dismissing the plaintiff’s claims because the parole
10
conditions were “reasonably related to the characteristics of [the plaintiff] and his crime”), aff’d,
693 F. App’x 8 (2d Cir. 2017); see also Birzon, 469 F.2d at 1243 (“[W]e see no reason why the
Government may not impose restrictions on the rights of the parolee that are reasonably and
necessarily related to the interests that the Government retains after his conditional release.”);
LoFranco v. U.S. Parole Comm’n, 986 F. Supp. 796, 802–03 (S.D.N.Y. 1997) (“As long as there
is a reasonable nexus between the special condition of release and the crime for which the
individual was convicted, a parolee may have his actions reasonably restricted in order to prevent
his future criminality, and that includes depriving a parolee of his freedom of association . . . .”).
The Court therefore grants Defendants’ motion to dismiss Plaintiff’s challenge to the parole
conditions.
c.
Plaintiff fails to plead a First Amendment Free Exercise Clause claim
In the January 2018 Decision, the Court informed Plaintiff that “[s]hould [he] choose to
pursue a First Amendment Free Exercise claim, he should, if possible, attach to the fourth
amended complaint any written requests for accommodations, and written responses from
Defendants. If lacking such documentation, Plaintiff should allege, in detail, any requests for
accommodations and Defendants’ responses, including proffered reasons for denial, to such
requests.” 284 F. Supp. 3d at 302.
In the FAC, Plaintiff does not detail any requests for accommodations. Plaintiff only
states in a conclusory manner that he has requested religious accommodations and “that such
requests were made to his parole officers and higher authorities, which were not granted by
Defendants.” (Pl. FAC Opp’n 7–8.) The Court is not “required to credit conclusory allegations
or legal conclusions couched as factual allegations.” Rothstein v. UBS AG, 708 F.3d 82, 94 (2d
Cir. 2013). The Court therefore dismisses Plaintiff’s First Amendment Free Exercise Clause
11
claim as he fails to allege any facts in support of this claim.
d.
Plaintiff plausibly pleads a First Amendment retaliation claim against
Annucci and Gaynor
Defendants argue that Plaintiff fails to cure the deficiencies of his First Amendment
retaliation claim because the minimal allegations in the FAC are “vague and imprecise,” and
therefore insufficient to allow an inference of retaliation based on temporal proximity. (Defs.
Mem. 13.) Defendants also argue that, assuming Plaintiff can establish an inference of
retaliation, “there is no allegation to show that any defendant was involved in the alleged
retaliatory act — increasing the frequency of Plaintiff’s reporting — let alone that they were
even aware of the grievance Plaintiff allegedly filed.” (Id.)
In the January 2018 Decision, the Court instructed Plaintiff that if he chose “to pursue a
First Amendment retaliation claim, he must allege facts as to the substance of the grievance he
filed, with whom the complaint was filed (allegedly Annucci and Evans), and the dates and
details of all relevant events as well as any facts that plausibly support the inference that he was
subjected to adverse actions in retaliation for having engaged in the protected activity.” Trisvan,
284 F. Supp. 3d at 303.
In the FAC, Plaintiff asserts that he has been subjected to more restrictive parole
requirements in retaliation for his grievance complaint against Urena. (FAC 4.) After being
initially denied a request to travel outside of New York City, Plaintiff “filed a complaint with
Defendants Annucci and Evans.”6 (Id.) In response, Plaintiff alleges that Defendants
“penalized” him, in part, by “strip[ping] [him] of his Level Three status” and “plac[ing] [him] on
6
Plaintiff does not specify when he filed this grievance. However, based on the
allegations in the FAC, the Court infers that the grievance was filed approximately two weeks
after he made his travel request in March of 2015. (FAC 3–4.)
12
Level One Status” instead, requiring Plaintiff to report to his parole officer “every two weeks”
instead of “every two months.” (Id.) On July 27, 2015, Steven A. Claudio, Assistant
Commissioner for Community Supervision, responded to Plaintiff’s grievance and told Plaintiff
that his request to travel was “too vague” and “inconsistent.” (Id.)
i.
Plaintiff has plausibly alleged a First Amendment retaliation claim
To withstand a motion to dismiss, “First Amendment retaliation claims must allege ‘(1)
that the speech or conduct at issue was protected, (2) that the defendant took adverse action
against the plaintiff, and (3) that there was a causal connection between the protected speech and
the adverse action.’” Davis v. Goord, 320 F.3d 346, 352 (2d Cir. 2003) (quoting Dawes v.
Walker, 239 F.3d 489, 491 (2d Cir. 2001)); see Muhammad v. Jenkins, No. 12-CV-8525, 2013
WL 5225573, at *11 (S.D.N.Y. Sept. 13, 2013) (applying standard to parolee). The Second
Circuit, however, has cautioned courts to approach “claims of retaliation with skepticism and
particular care” in the penological context in part because “virtually any adverse action taken[,]
even those otherwise not rising to the level of a constitutional violation[,] can be characterized as
a constitutionally proscribed retaliatory act.” Davis, 320 F.3d at 352 (citation omitted). Thus,
the Second Circuit “require[s] that such claims be ‘supported by specific and detailed factual
allegations,’ not stated ‘in wholly conclusory terms.’” Dolan v. Connolly, 794 F.3d 290, 295 (2d
Cir. 2015) (citation omitted).
“To plausibly allege causation, a plaintiff ‘must allege facts suggesting that the protected
conduct was a substantial or motivating factor in the prison official’s decision to take action
against [him].’” Moore v. Peters, 92 F. Supp. 3d 109, 121 (W.D.N.Y. 2015) (quoting Burton v.
Lynch, 664 F. Supp. 2d 349, 367 (S.D.N.Y. 2009) (internal quotations and citation omitted); see
also Burton, 664 F. Supp. at 367 (“Circumstantial facts indicating a retaliatory motive include
13
‘(i) the temporal proximity between the protected activity and the alleged retaliatory act; (ii) the
inmate’s prior good disciplinary record; (iii) vindication at a hearing on the matter; and (iv)
statements by the defendant concerning his motivation.’”) (citation omitted); cf. Cusamano v.
Alexander, 691 F. Supp. 2d 312, 321 (N.D.N.Y. 2009) (finding sufficient facts to infer improper
motivation where the defendant parole officer alleged that the plaintiff had “opened up a can of
worms with [his] letter writing campaign”).
The Court previously found that by “complaining about the conduct of his parole officer,
Plaintiff engaged in a constitutionally protected activity.” Trisvan, 284 F. Supp. 3d at 303
(citation and internal quotation marks omitted). The Court also previously found that “the
imposition of more stringent reporting requirements appears to qualify as an adverse action” and
that the “prospect of the imposition of [more frequent reporting requirements] could deter a
parolee from complaining about his parole officer.” Id. (citation and internal quotation marks
omitted).
In the FAC, Plaintiff alleges that he “filed a complaint” with “Defendants Annucci and
Evans” at the time his first travel request and transfer request were denied, which was in or about
March of 2015, and, approximately three months later, in June of 2015, his reporting
requirements were changed. (FAC 4.) The approximately three-month gap between Plaintiff’s
grievance and the change in his reporting requirements is sufficient to plausibly allege that the
filing of his grievance was a motivating factor in Defendants’ decision to change his reporting
requirements. See Cronin v. St. Lawrence, No. 08-CV-6346, 2009 WL 2391861, at *5 (S.D.N.Y.
Aug. 5, 2009) (declining to dismiss the plaintiff’s First Amendment retaliation claim where there
was an eleven-month gap between his protected activity and the adverse action). In addition,
Plaintiff alleges that Gaynor and Joseph told him that if he complained again to their bosses,
14
(indicating that they were aware of Plaintiff’s complaint) they would not even consider any of
his future travel requests. (Id. at 4–5.) When considered in their totality, Plaintiff’s allegations
are sufficient to plausibly allege causation.
ii.
Personal involvement
Defendants argue that “there is no allegation to show that any [D]efendant was involved
in the alleged retaliatory act — increasing the frequency of Plaintiff’s reporting — let alone that
they were even aware of the grievance Plaintiff allegedly filed.” (Defs. Mem. 13.) The Court
finds otherwise.
“To prevail in a First Amendment retaliation claim under 42 U.S.C. § 1983, ‘a plaintiff
must show by a preponderance of the evidence that the defendant was personally involved —
that is, he directly participated — in the alleged constitutional deprivations.’” Smith v. Levine,
510 F. App’x 17, 20 (2d Cir. 2013) (quoting Gronowski v. Spencer, 424 F.3d 285, 293 (2d Cir.
2005)); see also Victory v. Pataki, 814 F.3d 47, 67 (2d Cir. 2016) (finding that a plaintiff must
demonstrate each defendant’s personal involvement in the actions that are alleged to have caused
the deprivation of the plaintiff’s constitutional rights); Farid v. Ellen, 593 F.3d 233, 249 (2d Cir.
2010) (same). For purposes of personal involvement, direct participation means “intentional
participation in the conduct constituting a violation of the victim’s rights by one who knew of the
facts rendering it illegal.” Provost v. City of Newburgh, 262 F.3d 146, 155 (2d Cir. 2001).
Indirect conduct “such as ordering or helping others to do the unlawful acts, rather than doing
them oneself,” may also constitute direct participation. Id. Personal involvement can also be
shown by:
evidence that: (1) the defendant participated directly in the alleged
constitutional violation, (2) the defendant, after being informed of
the violation through a report or appeal, failed to remedy the wrong,
(3) the defendant created a policy or custom under which
15
unconstitutional practices occurred, or allowed the continuance of
such a policy or custom, (4) the defendant was grossly negligent in
supervising subordinates who committed the wrongful acts, or (5)
the defendant exhibited deliberate indifference . . . by failing to act
on information indicating that unconstitutional acts were occurring.
Back v. Hastings On Hudson Union Free Sch. Dist., 365 F.3d 107, 127 (2d Cir. 2004) (citing
Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)).
Plaintiff’s allegations that Annucci imposed his conditions of parole, (FAC 3), and that
he filed his grievance with Annucci, (id. at 4), are sufficient at this stage to show Annucci’s
personal involvement in the alleged First Amendment retaliation claim, see Cusamano, 691 F.
Supp. at 321 (finding in a First Amendment retaliation claim that “in light of the allegation that
[the parole officer] identified [the defendant] as the individual responsible for ordering [the]
plaintiff’s enrollment in a drug treatment program, [the] plaintiff pleads sufficient facts to
establish [the] defendant[’s] . . . personal involvement”). In addition, in light of Plaintiff’s
allegation that Gaynor became his new parole officer in June of 2015, at the time his reporting
requirements changed, the allegations support an inference that Gaynor helped to enforce the
alleged constitutional violation.7 See Smith, 510 F. App’x at 17 (finding that the plaintiff’s
allegation that the defendant “was the guard who actually removed him from his cell,” although
the defendant did not order the plaintiff’s transfer or placement in a special housing unit, was
sufficient to show the defendant’s personal involvement in the alleged retaliation). Plaintiff’s
allegations are therefore sufficient to show Annucci’s and Gaynor’s personal involvement in the
7
As stated above, Plaintiff has sufficiently alleged that Gaynor was aware of his
protected activity by alleging that Gaynor commented that if Plaintiff “decided to report future
denials to their superiors in the Central Office,” he would not “hear or even consider future travel
requests.” (FAC 4.) Gaynor and Joseph told Plaintiff that “future complaints filed against them .
. . will ultimately result in further denials concerning travel requests.” (Id. at 4–5.)
16
alleged deprivation of Plaintiff’s First Amendment rights.8
e.
Qualified immunity
Defendants argue that they are entitled to qualified immunity from any claim for damages
because Plaintiff fails to state a claim that Defendants violated any of his constitutional rights.
(Reply 5.)
“Qualified immunity protects officers from suit so long as ‘their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person would have
known.’” Berg v. Kelly, 897 F.3d 99, 109 (2d Cir. 2018) (quoting Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982)); Garcia v. Does, 779 F.3d 84, 92 (2d Cir. 2015) (“Qualified immunity
protects public officials from liability for civil damages when one of two conditions is satisfied:
(a) the defendant’s action did not violate clearly established law, or (b) it was objectively
reasonable for the defendant to believe that his action did not violate such law.” (quoting Russo
v. City of Bridgeport, 479 F.3d 196, 211 (2d Cir. 2007))).
Given that “qualified immunity is not only a defense to liability, but also provides
immunity from suit,” a court should resolve a “defendant’s entitlement to qualified
immunity . . . ‘at the earliest possible stage in litigation.’” Lynch v. Ackley, 811 F.3d 569, 576
(2d Cir. 2016) (quoting Pearson v. Callahan, 555 U.S. 223, 231–32 (2009)). “[U]sually, the
8
However, the Court declines to address Plaintiff’s claims against Joseph, Thompson,
Wilkerson, and John Doe. The Court previously instructed Plaintiff that “to the extent Plaintiff
seeks to add any additional claims, he must first seek Defendants’ consent or file a motion for
leave to amend because he has already exhausted his one chance to do so as a matter of course.”
Trisvan, 284 F. Supp. at 304 (citing Fed. R. Civ. P. 15(a)(2)). Plaintiff neither sought
Defendants’ consent nor moved the Court for leave to amend but added Defendants Joseph,
Thompson, Wilkerson, and John Doe. Nevertheless, because Plaintiff’s only surviving claim is
his First Amendment retaliation claim and Plaintiff does not allege the involvement of these
Defendants with regard to his grievance or reporting requirements, Plaintiff fails to state a claim
as to these Defendants.
17
defense of qualified immunity cannot support the grant of a Rule 12(b)(6) motion” to dismiss,
but “a district court may grant a Rule 12(b)(6) motion on the ground of qualified immunity if
‘the facts supporting the defense appear on the face of the complaint.’” Hyman v. Abrams, 630
F. App’x 40, 42 (2d Cir. 2015) (quoting McKenna v. Wright, 386 F.3d 432, 435–36 (2d Cir.
2004)). As a result, “a defendant presenting an immunity defense on a Rule 12(b)(6) motion
instead of a motion for summary judgment must accept [that] . . . the plaintiff is entitled to all
reasonable inferences from the facts alleged, not only those that support his claim, but also those
that defeat the immunity defense.” Id. (quoting McKenna, 386 F.3d at 436).
While Defendants argue that “it would have been objectively reasonable for Defendants
to believe that the imposition of the special conditions based upon Plaintiff’s crime of conviction
was reasonable and lawful because they were reasonably and necessarily related to the State’s
interest in monitoring Plaintiff and preventing any further criminal activity,” (Reply 5),
Defendants do not address Plaintiff’s constitutional right to file grievances without suffering
retaliation, see McCloud v. Kane, 491 F. Supp. 2d 312, 319 (E.D.N.Y. 2007) (finding that
because the defendant failed to “meaningfully address . . . the right to file grievances about the
defendant’s conduct without being subject to retaliation . . . the defendant did not succeed in
establishing that this right was not clearly established at the time she imposed the curfew on the
plaintiff, or that it was objectively reasonable for her to believe that imposing a curfew on the
plaintiff because he complained about her conduct did not violate the law”); see also Vincent v.
Sitnewski, 117 F. Supp. 3d 329, 342–43 (S.D.N.Y. 2015) (finding that the officers were not
entitled to qualified immunity as to the inmate’s First Amendment retaliation claim because “if
[the inmate] succeeds in demonstrating that retaliation occurred, the right imperiled by officers at
Greenhaven — the right to speak out without fear of reprimand — was well-ingrained at the time
18
of the disputed conduct”).
Accordingly, because the issue was not raised by Defendants, the Court declines to
consider whether Annucci and Gaynor are entitled to qualified immunity for Plaintiff’s First
Amendment retaliation claim.
III. Conclusion
For the foregoing reasons, the Court grants in part and denies in part Defendants’ motion
to dismiss. The Court denies the motion as to Plaintiff’s First Amendment retaliation claim
against Annucci and Gaynor. The Court grants the motion as to all other remaining claims and
dismisses those claims without leave to amend.
Dated: May 30, 2019
Brooklyn, New York
SO ORDERED:
s/ MKB
MARGO K. BRODIE
United States District Judge
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