Trisvan v. Annucci et al

Filing 79

ORDER granting 63 Motion to Dismiss for Failure to State a Claim; granting 75 Motion to Dismiss for Failure to State a Claim. For the reasons stated in the attached memorandum and order, the Court grants Defendants' motion to dismiss, and grants Plaintiff leave to file a fourth amended complaint within thirty (30) days. Ordered by Judge Margo K. Brodie on 1/9/2018. Ordered by Judge Margo K. Brodie on 1/9/2018. (Chu, Chan Hee)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------JOHN TRISVAN,
Plaintiff,
v.

MEMORANDUM & ORDER
14-CV-6016 (MKB)

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, and A. GAYNOR, Parole
Officers for Brooklyn V Area Office, ANDREA
EVANS, Former Chair of the New York Parole
Board (2009-2013), 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,
Senior Parole Officer, and Anne Gould and Yvonne King, Parole Officers, of the “Brooklyn V
Area Office,” challenging the conditions of his parole and seeking relief pursuant to 42 U.S.C. §
1983. (Compl. 1, Docket Entry No. 1.) Plaintiff subsequently amended the complaint three
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.

1

Since the commencement of this action, Department of Correctional Services and
Department of Parole have merged to form the new entity DOCCS. (See Defs. Mem. in Supp. of
Defs. TAC Mot. (“Defs. TAC Mem.”) 1 n.1, Docket Entry No. 64.)

57.)
Defendants move to dismiss the TAC, the last amended complaint, for failure to state a
claim pursuant to Federal Rule of Civil Procedure 12(b)(6).2 Plaintiff opposes these motions.3
The TAC was filed on January 5, 2017, and largely mirrors the prior complaints except for the
addition of claims based on the Fifteenth and Twenty-first Amendments and A. Gaynor, Parole
Officer, as a Defendant. (Id. at 1–2.) For the reasons set forth below, the Court grants
Defendants’ motions to dismiss. Plaintiff is granted thirty (30) days from the date of this
Memorandum and Order to submit a fourth, and final, amended complaint.
I.

Background
a. Factual background
The Court assumes familiarity with the facts as detailed in its prior Memoranda and

Orders and provides a summary of only the pertinent facts. See Trisvan v. Annucci, No. 14-CV6016, 2015 WL 1966275, at *1 (E.D.N.Y. Apr. 29, 2015) (“Trisvan I”); Trisvan v. Annucci, No.
14-CV-6016, 2016 WL 7335609, at *5 (E.D.N.Y. Dec. 16, 2016) (“Trisvan II”). In January
1997, Plaintiff’s friend, Jermaine Cross, learned that another man, Raheim Slaughter, intended to

2

(Defs. Mot. to Dismiss TAC (“Defs. TAC Mot.”), Docket Entry No. 63; Defs. TAC
Mem.; Def. Evans Mot. to Dismiss TAC (“Evans TAC Mot.”), Docket Entry No. 75; Def. Evans
Mem. in Supp. of Evans TAC Mot. (“Evans TAC Mem.”), Docket Entry No. 76.)
As part of the motion to dismiss the TAC, Defendants explained that Evans and Gaynor
had not “requested representation . . . and ha[d] not been served” at the time of filing. (Defs.
Mem. in Supp. of Defs. TAC Mot. (“Defs. TAC Mem.”) 1 n.1, Docket Entry 64.) Evans later
requested common representation and Defendants filed a separate motion to dismiss on her
behalf. (See Evans TAC Mot.) Given the overlap in claims and defenses, the Court addresses
both motions to dismiss in this Memorandum and Order.
3

(Pl. Opp’n to Defs. TAC Mot. (“Pl. TAC Opp’n”) Docket Entry No. 62; Pl. Opp’n to
Evans TAC Mot. (“Pl. Evans TAC Opp’n”), Docket Entry No. 77.)

2

rob Plaintiff.4 See Trisvan v. Ercole, No. 07-CV-4673, 2015 WL 419685, at *2 (E.D.N.Y. Jan.
30, 2015). Cross discovered that Slaughter was in an apartment in the Albany Housing Complex
in Brooklyn, New York. Id. at *1. At approximately 1:30 AM, Plaintiff accompanied Cross to
the apartment to confront Slaughter. Id. at *2. When Plaintiff and Cross arrived at the
apartment, they found Slaughter and shot him several times. Id. Cross was arrested a few days
later and told the police that Plaintiff was the second shooter. Id. The police went to Plaintiff’s
home, but he had fled to Philadelphia, Pennsylvania. Id. Plaintiff returned to New York in May
of 1997, and surrendered to the police. Id. Based on an eyewitness identification and Plaintiff’s
confession, Plaintiff was convicted of manslaughter in the first degree. Id. at *3–4. The trial
judge sentenced Plaintiff to an indeterminate sentence of twelve-to-twenty-five years of
imprisonment. Id. at *4.
Plaintiff was granted parole on September 27, 2011, after serving fourteen years of his
sentence at Great Meadow Correctional Facility. (TAC 2.) Gould, Plaintiff’s initial parole
supervisor, informed Plaintiff of the conditions of his parole, which included:
a) curfew between the hours of 9 p.m. and 7 a.m.;
b) no use of alcohol or [attendance] in an establishment of 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 New York City (5 boroughs) and/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.

4

Because the TAC does not provide any of the facts underlying Plaintiff’s conviction,
the Court takes judicial notice of Trisvan v. Ercole, No. 07-CV-4673, 2015 WL 419685
(E.D.N.Y. Jan. 30, 2015), a decision in Plaintiff’s federal habeas corpus case, which describes
the factual background of Plaintiff’s crime of conviction. In the TAC, Plaintiff only asserts that
he was “tried, charged, and convicted of manslaughter in the first degree.” (TAC 6, Docket
Entry No. 57.)
3

(Id. at 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. at 4.) In approximately March 2015, Urena replaced
King as Plaintiff’s parole supervisor. (Id.)
In or about March or April 2015, Plaintiff was informed that he needed to submit a
request to travel outside of New York City. (Id.) In June 2015, Plaintiff requested permission
to travel to Albany, New York, and Urena denied the request. (Id.) Plaintiff subsequently filed a
complaint to Annucci and Evans. Gaynor, who replaced Urena, subsequently also denied the
travel request. (Id.) Although his travel request was eventually granted in August of 2015,
Plaintiff alleges that he has been stripped of his “level three” status in retaliation for his
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 claims that
he has been “forced” by each parole supervisor to agree to the parole terms. (Id.) At some point,
Plaintiff was also informed that, due to his felony conviction, he no longer has the right to vote.
(Id.)
b. Procedural background
Based on the foregoing facts, Plaintiff filed suit against Defendants, alleging violations of
his rights under the First, Second, Fifth, Eighth, Ninth and Fourteenth Amendments of the United
States Constitution. (Id. at 5.) In every complaint, Plaintiff has alleged: (1) that the curfew and
travel conditions violate the First Amendment’s Free Exercise Clause because (a) he is
prohibited from praying at a mosque between 9:00 PM and 7:00 AM, and (b) he is prohibited
from making a pilgrimage to Mecca, (id. at 3); (2) that the condition regarding contact with

4

persons previously convicted of a felony violates his First Amendment right to free association
because he is unable to associate with anyone unless he knows their criminal history, (id.); (3)
that the firearm condition violates his Second Amendment right to bear arms, (id. at 5); and (4)
that the travel restriction violates his fundamental right to travel under the Fourteenth
Amendment and restricts his ability to “strengthen[] ties with [his] friends and family, . . . .” (id.
at 3.) Through subsequent amendments, Plaintiff also alleged that the release conditions
constitute: (5) double punishment for the same crime in violation of the Fifth Amendment’s
Double Jeopardy Clause, (id. at 5); (6) cruel and unusual punishment in violation of the Eight
Amendment, (id.); and (7) violation of due process and equal protection rights guaranteed under
the Fourteenth Amendment, (id.). Although not directly related to the conditions of parole,
Plaintiff has also consistently maintained that Defendants have violated his right to vote. (Id. at
4.)
In the April 2015 Memorandum and Order, the Court dismissed Plaintiff’s claims sua
sponte and denied leave to amend, finding that “Plaintiff has no protected liberty interest to be
free from the special conditions of his parole and has otherwise failed to allege a constitutional
violation.” Trisvan I, 2015 WL 1966275, at *4 (citations omitted). The Court also found that
Plaintiff failed to “allege[] any facts to suggest that the imposition of his special conditions of
parole are arbitrary and capricious or that his parole conditions are not ‘reasonably and
necessarily related’ to the Government’s interest.” Id. (citation omitted). On appeal, the Second
Circuit remanded with instructions to allow Plaintiff to file a second amended complaint to show
why the release conditions are not “‘reasonably and necessarily related’ to the state’s interests in
light of the conduct for which [Plaintiff] was convicted.” (Order of USCA, Docket Entry No.
14.)

5

Following remand, in dismissing the Second Amended Complaint, the Court again found
that Plaintiff “fail[ed] to present . . . any factual allegations regarding his crime of conviction and
fail[ed] to allege that the release conditions are not reasonably and necessarily related to his
crime of conviction.” Trisvan II, 2016 WL 7335609, at *3. The Court reiterated that “parolees
are subject to ‘restrictions not applicable to other citizens,’ and a prisoner on parole enjoys only
‘conditional liberty properly dependent on observance of special parole restrictions.’” Id.
(citations omitted). Thus, Plaintiff’s “consistent[] assert[ions] that the release conditions are
unconstitutional” were insufficient to withstand the motion to dismiss. Id. at 4. Nevertheless, in
light of Plaintiff’s pro se status, the Court granted leave to amend. Id. at 5. In so doing, the
Court advised 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. (emphasis
added).
Subsequently, Plaintiff filed the TAC, repeating 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
therefore unreasonable or unnecessary. (See generally TAC.) Instead, Plaintiff only added
allegations that the restriction on alcohol consumption violates his rights under the Twenty-first
Amendment. (Id.) Plaintiff also specified that his right to vote was infringed in violation of the
Fifteenth Amendment. (Id.)
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
6

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 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 the Court should dismiss the TAC with prejudice for failing to
state a claim. (Defs. TAC Mem. 2.) Rather than alleging that the release conditions are not
reasonably and necessarily related to legitimate state interests in light of the crime and
circumstances related to his conviction, Plaintiff again asserts that the restrictions are inherently

7

unconstitutional and Defendants have violated the Constitution by enforcing them. (Pl. Opp’n to
Evans TAC Mot. (“Pl. Evans TAC Opp’n”) 2, Docket Entry No. 77 (“It has been noted that
Plaintiff’s constitutional rights are not unfettered . . . These rights were deemed by the framers . .
. as ‘inalienable.’”).) Plaintiff continuously asserts in a conclusory manner that Defendants’
proffered justifications such as the desire to “deter . . . future criminal acts are” attempts to shield
violations of his constitutional rights. (Pl. Opp’n to Defs. TAC Mot. (“Pl. TAC Opp’n”) 2,
Docket Entry No. 62; Pl. Evans TAC Opp’n 2.) In addition, Plaintiff also argues that he has
“served his time,” and therefore may not be subject to any further supervision. (TAC 7; id. at 9
(“Defendants are attempting to keep Plaintiff under supervision for an additional time beyond
which Plaintiff has already served.”).) Plaintiff further asserts that the restrictions are
unnecessary because he has been a “law abiding member of his community” both before and
after the conviction at issue. (Id. at 9.)
As this Court has reminded Plaintiff, parolees may be subject to “restrictions not
applicable to other citizens.” Trisvan II, 2016 WL 7335609, at *3 (citation omitted). Despite
Plaintiff’s contrary assertions, even fundamental constitutional rights may be abridged to serve
reasonable and necessary penological interests. Courts, in the context of parolees, have
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); Daniels v. Ralph, No. 10-CV-884, 2012 WL 2120591, at *9 (W.D.N.Y. June 11,
2012) (upholding parole condition placing limitations on constitutional protections of familial
relationships grounded in the Fourteenth Amendment’s right to privacy); Robinson v. New York,
No. 09-CV-0455, 2010 WL 11507493, at *4 (N.D.N.Y. Mar. 26, 2010) (finding that the

8

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 “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-CV-2073, 2010 WL 93163, at *5
(S.D.N.Y. Jan. 11, 2010) (finding denial of travel pass did not violate 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 New York State Rifle & Pistol Ass’n,

5

Plaintiff’s claims based on the Ninth, Fifteenth, and Twenty-first Amendments are
misplaced. Outside of perhaps the State of Indiana, there is no fundamental right to consume
alcohol. See Felix v. Milliken, 463 F. Supp. 1360, 1372 (E.D. Mich. 1978) (“It becomes quickly
apparent that [the right to drink alcohol] is not [implicitly or explicitly guaranteed by the United
States Constitution]; and it further appears that the [T]wenty-first [A]mendment . . . explicitly or
implicitly denies to an individual the claim that the right to drink alcohol is a fundamental
right.”); Herman v. State, 8 Ind. 545, 558 (1855) (“We lay down this proposition, then, as
applicable to the present case; that the right of liberty and pursuing happiness secured by the
constitution, embraces the right, in each compos mentis individual, of selecting what he will eat
and drink, in short, his beverages.”).
In addition, “[e]nacted in the wake of the Civil War, the immediate concern of the
[Fifteenth] Amendment was to guarantee to the emancipated slaves the right to vote, lest they be
denied the civil and political capacity to protect their new freedom.” Rice v. Cayetano, 528 U.S.
495, 512 (2000). The Fifteenth Amendment’s reference to “previous condition of servitude,” the
language Plaintiff’s relies upon, was designed to ensure that former slaves were protected. See
id.; Malnes v. Arizona, No. 16-CV-08008, 2016 WL 9685170, at *2 (D. Ariz. July 5, 2016)
(“The language in the Fifteenth Amendment assuring that suffrage cannot be denied because of a
‘previous condition of servitude’ was drafted to ensure that a person’s status as a newly
emancipated slave could not be used as a race-based means of denying voting rights[.]”); see
also United States v. Kozminski, 487 U.S. 931, 942 (1988) (holding that the “the phrase
‘involuntary servitude’ [in the Thirteenth Amendment] was intended to extend ‘to cover those
forms of compulsory labor akin to African slavery which in practical operation would tend to
produce like undesirable results.’”). While the Fifteenth Amendment also forbids the denial or

9

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.”); D.C. 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 convicted felons, even those “who have completed their
sentences and paroles,” may be “exclude[d] from the franchise” “consistent with the Equal
Protection Clause of the Fourteenth Amendment”).
As before, Plaintiff fails to present any factual allegations explaining how or why the
release conditions are not reasonably or necessarily related to legitimate state interests in light of
the crime and conduct underlying his conviction. (TAC 2–11; Pl. TAC Opp’n 1–10; Pl. Evans
TAC Opp’n 1–9.) Instead, Plaintiff continues to argue that any condition that abridges a
constitutional right is per se unreasonable. (See Pl. Evans TAC Opp’n 9.) Because of the lack of
factual allegations, the Court is again unable to adequately assess whether the release conditions
permissively serve “legitimate interests of the parole regime” such as “rehabilitat[ion]” and
“protection of the public,” tailored “in light of the conduct for which [Plaintiff] was convicted.”
Best v. Nurse, No. CV 99-3727, 1999 WL 1243055, at *3 (E.D.N.Y. Dec. 16, 1999); (Order of
USCA, Docket Entry No. 14); see also Farrell v. Burke, 449 F.3d 470, 497 (2d Cir. 2006)
(“Because [petitioner] was a convicted sex offender, most regulations of his possession of sexual
material would be ‘reasonably and necessarily related to the Government’s legitimate interests in

abridgement of the right to vote on account of race and color, Plaintiff does not seek relief on
such basis. See Rice, 528 U.S. at 512.
Finally, “[t]he Ninth Amendment is not an independent source of individual rights;
rather, it provides a “rule of construction” that . . . appl[ies] in certain cases.” Jenkins v. C.I.R.,
483 F.3d 90, 92–93 (2d Cir. 2007).
10

the parolee’s activities’ and thus would not violate the First Amendment.” (emphasis added)).
Therefore, 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) (denying the plaintiff’s claims because the parole 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, 986 F. Supp.
at 802–03 (“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 . . . .”).
Even if the Court were to consider the circumstances underlying the crime of conviction
as described in the habeas decision, Plaintiff’s claims would nevertheless fail.6 Generally, “the

6

Although the Court relied on Plaintiff’s petition for a writ of habeas corpus to provide
the background facts underlying Plaintiff’s crime of conviction, Trisvan, 2015 WL 419685, at
*2, the Court may not rely on those facts for the truth of the matters asserted therein. See Global
Network Commc’ns Inc. v. City of New York, 458 F.3d 150, 157 (2d Cir. 2006) (“A court may
[not] take judicial notice . . . for the truth of the matters asserted in . . . other litigation, but rather
to establish the facts of such litigation and related filings.”); Gantt v. Ferrara, No. 15-CV-7661,
2017 WL 1192889, at *14 (S.D.N.Y. Mar. 29, 2017) (taking judicial notice of only the
conviction of a particular crime as provided in the related criminal dispositions); Elliott v. Nestle
Waters N. Am. Inc., No. 13-CV-6331, 2014 WL 1795297, at *8 (S.D.N.Y. May 6, 2014) (“[T]he
Court may properly take judicial notice of the decisions to the extent that they establish that such
decisions were rendered, though not to establish the truth of any matter asserted in the
decisions.”). Plaintiff must state in his own Complaint the factual allegations underlying his
crime of conviction for the Court to properly analyze whether he has stated a plausible claim for
relief.
In addition, despite citing to his habeas decision, Plaintiff did so claiming his innocence.
(See TAC 10 (“Plaintiff is an innocent man, and has asserted his claim of innocence before this

11

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.”). Under this deferential standard
and the facts as stated in the habeas decision alone, the special conditions appear to be
“reasonably designed to limit plaintiff’s exposure to activities and associations that could tend to
lead him back into a life of crime.” (Defs. TAC Mem. 6–7.) According to the habeas decision,
Plaintiff was convicted for first degree manslaughter. Trisvan, 2015 WL 419685, at *1. Plaintiff

Court [ten] years ago.” (citing Trisvan, 2015 WL 419685)).) First, as Defendants point out,
Plaintiff may not collaterally attack his guilt in this action. (See Defs. TAC Mem. 13.); Heck v.
Humphrey, 512 U.S. 477, 484–85 (1994). Second, by claiming innocence, Plaintiff effectively
asserts that the facts, as described in the habeas decision, are untrue except for those supporting
his claim of innocence. By asserting an “actual innocence” claim in the habeas petition, Plaintiff
argued that his confession was coerced, that the physical evidence was incompatible with his
confession, that eyewitnesses had either recanted their testimony or were not credible and that
his appointed counsel improperly refused to offer his alibi at trial. Trisvan, 2015 WL 419685, at
*5–6. Even construing the TAC liberally, the Court cannot conclude that Plaintiff seeks to
incorporate any facts as described in the habeas decision other than those supporting his actual
innocence claim. See Caidor v. M&T Bank, No. 05-CV-297, 2006 WL 839547, at *5 (N.D.N.Y.
Mar. 27, 2006) (“[T]he Court cannot take judicial notice of the facts contained in these
documents because Plaintiff states that the affidavit is false, and a court may not take judicial
notice of the truth of disputed factual matters.”); see also Williams v. Time Warner Inc., 440 F.
App’x 7, 9 (2d Cir. 2011) (“A mere passing reference or even references, however, to a
document outside of the complaint does not, on its own, incorporate the document into the
complaint itself.”); Jackson v. Hanson, No. 12–CV-654, 2014 WL 787820, at *11 (S.D.N.Y.
Feb. 25, 2014) (same in case involving pro se plaintiff). More importantly, even if the facts
underlying his conviction were incorporated, Plaintiff fails to sufficiently allege why, based on
those facts, the conditions are unreasonable or unnecessary. Instead, Plaintiff continues to assert
that Constitutional rights cannot be abridged for any reason. (See TAC 10 (“Every special
condition imposed upon Plaintiff violates his rights which are protected by the Constitution.”).)

12

entered a housing development, known to be a gathering place for a gang, and shot and killed the
victim at around 1:30 a.m. Id. at *2. After shooting the victim, Plaintiff fled to Philadelphia for
approximately five months. Id. Based on these facts, the Court cannot conclude that any of the
special conditions are unreasonable or unnecessary. The violent nature of the crime supports
limiting access to weapons. Traveling and access to vehicles, including a driver’s license, may
also be curtailed given Plaintiff’s exhibited willingness to flee authorities.7 Given the timing of
the commission of the crime, a curfew may be especially reasonable in this case. 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.”).

7

Plaintiff asserts that the conditions preventing him from operating a vehicle, possessing
a driver’s license or potential weapons prevent him from “train[ing] or tak[ing] on certain careers
that involve utilizing a vehicle” and other forms of employment. (TAC 6.) These conditions are
not only common but also appear reasonably and necessarily related to legitimate state interests
such as protecting the public and ensuring compliance with other parole requirements. The
restriction on possessing a driver’s license and operating a vehicle, in conjunction with the travel
condition, may assist parole officers in monitoring Plaintiff’s activities, a “clearly legitimate
penological objective[].” Muhammad v. Jenkins, No. 12-CV-8525, 2014 U.S. Dist. LEXIS
158481, *18 (S.D.N.Y. Nov. 4, 2014); 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,
Plaintiff does not provide any examples of how he personally has been impaired from gainful
employment due to these restrictions. Instead, Plaintiff appears to hypothesize careers that may
be impacted. However, 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”). While Plaintiff may have a stronger claim regarding the conditions restricting his
access to vehicles, (see Gerena v. Rodriguez, 596 N.Y.S.2d 143 (App. Div. 1993) (finding denial
of permission to obtain driver’s license to be within discretion of parole officer where petitioner
had lured and driven away child victims in his car)), the Court does not have enough information
to adequately assess his claims.

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c.

Plaintiff fails to plead a valid First Amendment Free Exercise Clause claim

Nevertheless, Plaintiff may have a viable claim based on a violation of the Free Exercise
Clause of the First Amendment. In particular, in his oppositions to the motions to dismiss,
Plaintiff explained that the curfew condition had prevented him from meaningfully partaking in
Ramadan, “an integral part of Islam.”8 (See Pl. Evans TAC Opp’n 7.) Plaintiff, for example,
was unable to offer “Taraweeh prayers, . . . special prayers performed in the mosques during the
night.” (Id.) Nor was Plaintiff able to take part in “iftar, . . . a fast-breaking feast that is
performed every night throughout the month of Ramadan.” (Id.); see also Yahweh v. U.S. Parole
Comm’n, 158 F. Supp. 2d 1332, 1346 (S.D. Fla. 2001) (“A restriction that prohibits an individual
from engaging in group worship, but allows solitary worship, must be characterized as a
substantial burden when group worship has been shown to be an important aspect of
the religion.”); but see Muhammad v. Jenkins, No. 12-CV-8525, 2014 U.S. Dist. LEXIS 158481,
*17 (S.D.N.Y. Nov. 4, 2014) (denying preliminary injunction based on free exercise claim for
denial of curfew modification because it was “at least reasonably likely that [the restriction]
‘further[ed] some legitimate penological objective.’”) (citation omitted).
Notwithstanding the permitted limitations on individual rights, “it is not doubtful . . . that
the Constitution, and notably the First Amendment, reaches [even] inside prison walls.” Sobell
v. Reed, 327 F. Supp. 1294, 1303 (S.D.N.Y. 1971); see also Best v. Nurse, No. CV 99-3727,

8

Because Plaintiff is proceeding pro se, the Court considers Plaintiff’s factual
allegations in his oppositions to the motions, in addition to the allegations in the TAC. See, e.g.,
Walker v. Schult, 717 F.3d 119, 122 n.1 (2d Cir. 2013) (“A district court deciding a motion to
dismiss may consider factual allegations made by a pro se party in his papers opposing the
motion.”); Small v. Ortlieb, No. 10-CV-1616, 2012 WL 3229298, at *1 (E.D.N.Y. Aug. 6, 2012)
(“[A]s part of this [c]ourt’s duty to construe pro se pleadings liberally, the [c]ourt will take
account of all the facts contained in both [plaintiff’s] amended complaint and his opposition
papers.” (citation omitted)).
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1999 WL 1243055, at *4 (E.D.N.Y. Dec. 16, 1999) (“Even prisoners have a right to associate
with each other in religious services.”). Despite generally upholding prison policies, courts take
into consideration various factors including the “availability of accommodations” in assessing
the reasonableness of a particular restriction. See O’Lone v. Estate of Shabazz, 482 U.S. 342,
350 (1987); Salahuddin v. Coughlin, 993 F.2d 306, 308 (2d Cir. 1993). Similarly, conditions of
supervised release placing “[a]ny limitation on exercise of religious freedom rights must be as
narrow as practicable and clearly related to an appropriate governmental need.” United States v.
Hernandez, 209 F. Supp. 3d 542, 546 (E.D.N.Y. 2016) (emphasis added); see also United States
v. Tolla, 781 F.2d 29, 34 (2d Cir. 1986) (“A [probation] condition is reasonable if it is not
unnecessarily harsh or excessive in achieving goals [of rehabilitating the defendant and
protecting the public].” (citation omitted and emphasis in original)).
Admittedly, the penological interests and legal requirements underlying parole, prison,
probation, and supervised release may differ in material respects. Courts, for example, have
recognized that “[t]he limitations on the exercise of constitutional rights [in prison] arise both
from the fact of incarceration and from valid penological objectives — including deterrence of
crime, rehabilitation of prisoners, and institutional security.” O’Lone, 482 U.S. at 348. By
contrast, “legitimate interests of the parole regime” include “rehabilitat[ion]” and “protection of
the public.” Best, 1999 WL 1243055, at *3 (emphasis added). In addition, the case law on
supervised release has developed around federal statutory requirements that are inapplicable to
parole. See United States v. Reeves, 591 F.3d 77, 82–83 (2d Cir. 2010) (“Where a condition of
supervised release impairs a protected associational interest, ‘our application of [§ 3583(d)
requirements] must reflect the heightened constitutional concerns’ involved.” (citation omitted)).
Nevertheless, courts recognize that “[prison], supervised release, parole and probation lie on a

15

continuum.” United States v. Browder, 866 F.3d 504, 511 n.26 (2d Cir. 2017) (citation omitted);
see also United States v. Ramos, 401 F.3d 111, 115 (2d Cir. 2005) (“This Court considers the
constitutional protections for revocation of supervised release to be the same as those afforded
for revocation of parole or probation.”) (citation omitted); Singleton v. Doe, 210 F. Supp. 3d 359,
373 (E.D.N.Y. 2016) (“The view that some due process rights attach to special conditions
of parole finds support in the related field of conditions of supervised release, to which due
process protections also apply.”); Robinson, 2010 WL 11507493, at *6 (“Conditional release,
like supervised release under the federal framework, which operates under a similar set of legal
standards, ‘requires a defendant to alter his or her behavior, but compared to imprisonment, the
conditions . . . impose a very minor infringement on a defendant’s liberty.’”) (citation omitted).
Indeed, courts often borrow legal principles developed in one context and apply them in another.
See Birzon, 469 F.2d at 1243 (“[N]o one has questioned the Government’s power totally to
deprive a convicted person of his freedom of association. By the same token, when a convict is
conditionally released on parole, the Government retains a substantial interest in insuring that its
rehabilitative goal is not frustrated and that the public is protected from further criminal acts by
the parolee.”); Sobell, 327 F. Supp. at 1304 (“While there are differences between prisoners and
parolees (or released persons like [plaintiff]), there are none that diminish the protections
enjoyed by the latter under the First Amendment. So the principles of the foregoing cases apply
here.”). Nevertheless, given the deferential review of parole board decisions, (see Pollard, 2016
WL 4290607, at *5), the strongest claims will most likely include a showing of pretext. See
Sobell, 327 F. Supp. at 1304 (finding denial of requested travel accommodation to speak at an
anti-war demonstration to violate the First Amendment where parole board based its decision on
the content of the proposed speech rather than the asserted factors related to public safety and

16

parolee rehabilitation).
Based on the foregoing legal principles, the Court finds it likely relevant whether there
were any requested and available accommodations (in addition to the facts underlying the crime
of conviction). See Best, 1999 WL 1243055, at *3 (“If a blanket ban on association is permitted,
arguably so too is a policy that merely reduces the chance of contacts among parolees. And yet,
restrictions can be no greater than needed where they infringe on First Amendment rights.”);
Muhammad v. Jenkins, No. 12-CV-8525, 2013 WL 5225573, at *11 (S.D.N.Y. Sept. 13, 2013)
(declining to dismiss claim, on the ground of qualified immunity, based on refusal to modify
curfew impacting religious practices); see also Pollard, 2016 WL 4290607, at *2 (discussing
defendants’ prior willingness to modify curfew to accommodate observance of the Sabbath).
The Court recognizes that it may be the case that the facts underlying Plaintiff’s crime of
conviction are such that a blanket curfew, without any modifications, was reasonable and
necessary. See id. (distinguishing case from United States v. Schiff, 876 F.2d 272, 273 (2d Cir.
1989) which “involved a challenge to the restrictions on the parolee’s right of political
association designed to prevent conduct similar to that which he had been convicted of’”);
Yahweh v. U.S. Parole Comm’n, 158 F. Supp. 2d 1332 (S.D. Fla. 2001) (finding that parolee
could be prevented from associating with his religious sect where he had used religion as a
means of exhorting his followers to commit racketeering acts). However, given the potential
substantial impairment of Plaintiff’s rights to exercise his faith, “[a] more nuanced balancing
[may often be] required.” Best, 1999 WL 1243055, at *3.
Should Plaintiff 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

17

detail, any requests for accommodations and Defendants’ responses, including proffered reasons
for denial, to such requests. While the condition on curfew may ultimately prove to be
reasonable and necessary, the Court cannot decide the issue without an understanding as to what
accommodations were requested, available, and the rationales for rejection. See Turner v. Safley,
482 U.S. 78, 90 (1987) (holding impact of accommodations and absence of ready alternatives are
considerations in assessing the reasonableness of prison regulations impinging on constitutional
rights); see also Muhammad v. Evans, No. 11-CV-2113, 2014 WL 4232496, at *8 (S.D.N.Y.
Aug. 15, 2014) (applying standard for reasonableness of restrictions from Turner to parole
conditions); Boehm v. Evans, 914 N.Y.S.2d 318, 320–21 (App. Div. 2010) (same). Without
consideration of these factors, the First Amendment and the protections it affords would be
eviscerated. While parolees, by the virtue of their crimes, are not entitled to the same rights as
other citizens, the First Amendment cannot be reduced to a legal nullity.
d. Plaintiff fails to plead a plausible First Amendment retaliation claim
In the TAC, Plaintiff asserts that he has been subject to more restrictive parole
requirements in retaliation for his grievance complaint against Urena.9 After being initially
denied a request to travel outside of New York City, Plaintiff filed a complaint against Urena.

9

The Court acknowledges that this new claim is beyond the scope of the leave to amend
granted in the prior order. However, because Plaintiff is a pro se litigant, the Court declines to
strike outright the improperly amended portions of the TAC. See Azkour v. Bowery Residents’
Comm., Inc., No. 13-CV-5878, 2017 WL 4329629, at *3 (S.D.N.Y. Sept. 13, 2017); Youngblood
v. City of New York, No. 15-CV-3541, 2017 WL 3176002, at *5 (S.D.N.Y. July 24, 2017)
(declining to dismiss pro se plaintiff’s claims “solely because they exceed[ed] the scope of the
leave granted”); see also Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996) (holding that pro se
litigants should be afforded leniency with regard to procedural matters). Nevertheless, because
the Court dismisses the new retaliation claim with leave to amend, Defendant cannot be said to
be prejudiced even if the motions to dismiss the TAC were prepared with a narrower scope of
claims in mind. Should Plaintiff file another amended complaint, Defendant will have an
opportunity to brief the retaliation claim.
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(TAC 4.) In response, Defendants allegedly “penalized” Plaintiff, in part, by “strip[ing] [him] of
his [L]evel Three status” and “plac[ing] [him] on Level One Status” instead. (Id.) This new
status allegedly requires Plaintiff to report “every two weeks” instead of “every two months.”
(Id.)
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); Muhammad, 2013 WL
5225573, at *11 (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).
Further, “[o]nly retaliatory conduct that would deter a similarly situated individual of ordinary
firmness from exercising his or her constitutional rights constitutes an adverse action for a claim
of retaliation.” Id. at 353.
“The right to petition government for redress of grievances —in both judicial and
administrative forums — is among the most precious of the liberties safeguarded by the Bill of
Rights.” McCloud v. Kane, 491 F. Supp. 2d 312, 317–18 (E.D.N.Y. 2007) (quoting Graham, 89
F.3d at 80). By “complaining about the conduct of his parole officer,” Plaintiff engaged in a
constitutionally protected activity. Id. In addition, the imposition of more stringent reporting

19

requirements appears to qualify as an “adverse action.” The Court finds that the “prospect of the
imposition of [more frequent reporting requirements] could deter a parolee from complaining
about his parol officer.” Id. Nevertheless, even liberally construed, Plaintiff fails to articulate a
plausible retaliation claim because the allegations as to the motivation for the change in status
level are wholly conclusory. See Johnson v. Eggersdorf, 8 F. App’x 140, 144 (2d Cir. 2001)
(explaining that the Second Circuit has “insisted on a higher level of detail in [the] pleading[s]”
for retaliation claims in the penological context). Plaintiff fails to allege any facts in support of
his conclusory statement that he was “penalized for filing a grievance complaint.” (TAC 4.) The
TAC fails to provide when the grievance was filed and when the alleged adverse action was
imposed — preventing even an inference of retaliation based on temporal proximity.
Should Plaintiff choose 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. See also Burton v. Lynch, 664 F. Supp. 2d 349, 367 (S.D.N.Y.
2009) (“Circumstantial facts indicating a retaliatory motive include ‘(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
defendant parole officer alleged stated that plaintiff had “opened up a can of worms with [his]
letter writing campaign”).

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e.

Leave to amend

Defendants argue that Plaintiff’s claims “should now be dismissed without leave to
replead” given the prior opportunities to amend. (Def. TAC Mem. 2.) The Court is mindful of
the time and resources expended by Defendants and agrees that “[a]t some point, [they] have a
right to a final disposition of this matter.” McKethan v. New York State Dep’t of Corr. Servs.,
No. 10-CV-3826, 2012 WL 2333415, at *2 (S.D.N.Y. June 19, 2012). Nevertheless, in an
abundance of caution, the Court grants Plaintiff one last opportunity to cure the deficiencies
identified in this Order. In doing so, the Court expressly warns Plaintiff that he will not be given
any additional opportunities to amend. See Konstantopoulos v. City of New York, No. 16-CV7754, 2017 WL 4736741, at *2 (S.D.N.Y. Oct. 19, 2017) (denying leave to amend after express
warning). With this final leave to amend, Plaintiff will have been afforded three opportunities to
cure his complaint following remand from the Second Circuit — more than enough chances,
even for a pro se party. See, e.g., Youngblood v. City of New York, No. 15-CV-3541, 2017 WL
3176002, at *6 (S.D.N.Y. July 24, 2017) (dismissing without leave to amend after second
amended complaint); Kelly v. Ulster Cty., NY, No. 12-CV-1344, 2013 WL 3863929, at *6
(N.D.N.Y. July 24, 2013) (dismissing without leave to amend after three prior opportunities to
amend); George v. Pathways to Hous., Inc., No. 10-CV-9505, 2012 WL 2512964, at *7
(S.D.N.Y. June 29, 2012) (dismissing without leave to amend after two prior opportunities to
amend); McKethan v. New York State Dep’t of Corr. Servs., No. 10-CV-3826, 2012 WL
2333415, at *2 (S.D.N.Y. June 19, 2012) (denying leave to amend the complaint a third time);
see also Colliton v. Bunt, No. 15-CV-6580, 2016 WL 7443171, at *5 (S.D.N.Y. Dec. 27, 2016)
(declining to consider facts contained in affidavit where Plaintiff had already amended complaint
three times). In addition, to the extent Plaintiff seeks to add any additional claims, he must first

21

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. See Fed. R. Civ. P. 15(a)(2).
With this understanding, the Court instructs Plaintiff again to “provide . . . facts
underlying his crime of conviction and explain why his release conditions are unreasonable or
unnecessary in light of those facts.” Trisvan II, 2016 WL 7335609 at *5 (emphasis added). As
explained in the prior Order, the Court may only consider the facts that Plaintiff includes in his
complaint. See Trisvan v. Annucci, No. 14-CV-6016, 2016 WL 7335609, at *4 n.7 (E.D.N.Y.
Dec. 16, 2016). To be abundantly clear, Plaintiff cannot rely on the facts as recited in this or the
prior Orders but must instead provide his own account of his crime of conviction — even if
identical to the Court’s recitations. Plaintiff must therefore 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
convicted. For all potential claims, Plaintiff should provide any details about any
accommodations he requested and the responses he received, including the proffered reasons.
To help satisfy this requirement, Plaintiff may also attach documents providing detail about his
crime, his requests for accommodations and responses to his complaints.
Plaintiff is advised that the fourth amended complaint will completely replace the prior
complaints. Therefore, Plaintiff must include in the fourth amended complaint all the necessary
information contained in the prior complaints. The fourth amended complaint must be
captioned, “Fourth Amended Complaint,” and must bear the same docket number as this
Memorandum and Order. If Plaintiff fails to file a fourth amended complaint within thirty (30)
days of this Memorandum and Order, the Court will dismiss this action.
III.

Conclusion
For the foregoing reasons, the Court grants Defendants’ motion to dismiss, and grants
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Plaintiff leave to file a fourth amended complaint within thirty (30) days of this Memorandum
and Order.

SO ORDERED:
s/ MKB
MARGO K. BRODIE
United States District Judge
Dated: January 9, 2018
Brooklyn, New York

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