Hirsch v. Desmond et al

Filing 79

MEMORANDUM & ORDER granting in part and denying in part 72 Motion to Amend/Correct/Supplement. For the foregoing reasons, Plaintiff's motion to amend is GRANTED IN PART and DENIED IN PART. To the extent that it seeks to plead due process a nd equal protection claims against the County Defendants in their official capacities, the motion is GRANTED on consent. To the extent that it seeks to replead due process and equal protection claims against Defendant Pernat and a new John Doe Defen dant in their individual capacities, the motion is GRANTED IN PART and DENIED IN PART: Plaintiff may amend the FAC to assert only a substantive due process claim. The Clerk of the Court is directed to (i) docket pages 2 through 13 of Docket Entry 74 as a separate docket entry titled, "Second Amended Complaint"; (ii) reinstate Pernat as a Defendant in this action; and (iii) add a new John Doe Defendant to the caption. So Ordered by Judge Joanna Seybert on 2/7/2013. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
JOSEPH S. HIRSCH,
Plaintiff,
-againstJOHN K. DESMOND, THE SUFFOLK COUNTY
DEPARTMENT OF PROBATION, CHRISTINA J.
GILSON, NANCY J. YOUNG, KAREN BELLAMY,
KATHERINE PERNAT, JOHN (JANE) DOE,
(name being fictitious) an employee of
the New York State Board of Bar
Examiners,

MEMORANDUM & ORDER
08-CV-2660(JS)(AKT)

Defendants.
----------------------------------------X
APPEARANCES
For Plaintiff:
Philip M. Smith, Esq.
Darren Richard Luft, Esq.
Patton Boggs LLP
1185 Avenue of the Americas
New York, NY 10036
For the County
Defendants:

Brian C. Mitchell, Esq.
Suffolk County Attorney’s Office
100 Veterans Memorial Highway
P.O. Box 6100
Hauppauge, NY 11788

For the State
Defendants:

Toni Logue, Esq.
New York State Attorney General’s Office
200 Old Country Road, Suite 460
Mineola, NY 11501

Presently

before

the

Court

is

Plaintiff

Hirsch’s motion to file a second amended complaint.

Joseph
For the

following reasons, Plaintiff’s motion is GRANTED IN PART and
DENIED IN PART.

BACKGROUND
Plaintiff commenced this action pro se on June 25,
2008, alleging violations of his federal constitutional rights
pursuant to 42 U.S.C. § 1983.

(Docket Entry 1.)

On October 21,

2009, Plaintiff filed an Amended Complaint (the “First Amended
Complaint”

or

Department,

John

Young

“FAC”)
K.

naming

Desmond,

(collectively,

the

the

Suffolk

Christina

“County

County

Gilson,

Probation

and

Defendants”),

Nancy
and

J.

Karen

Bellamy, Katherine Pernat, and Stephen Weber1 (collectively, the
“State Defendants”) as Defendants.
I.

(Docket Entry 33.)

The Allegations in the FAC
A.

Against the County Defendants
In or around January 2002, Plaintiff was convicted by

a jury of two counts of Sexual Abuse in the First Degree, two
counts

of

Assault

in

the

Second

Degree,

and

one

count

of

Unlawful Imprisonment in the First Degree and sentenced to a
six-year

term

of

incarceration.2

At

sentencing,

his

lawyer

objected to several portions of the Pre-Sentence Investigation
and Report (“PSIR”), which was prepared by Defendant Gilson, a

1

Stephen Weber identified himself as the First Amended
Complaint’s “John Doe.” (Docket Entry 41.)
2

Plaintiff was also charged with three additional counts of
Sexual Abuse in the First Degree as well as one count of
Aggravated Sexual Abuse in the Second Degree for allegedly
inserting his finger into his victim’s rectum. He was acquitted
of all of these charges. (FAC Ex. B.)
2

probation
(the

officer

in

the

“Department”),

Suffolk

and

County

reviewed

by

Probation

Department

Defendant

Young,

supervising probation officer in the Department.
Although

the

trial

judge

ordered

the

a

(FAC § III.1.)

objected-to

portions

stricken from the PSIR, this order was never carried out.

(FAC

§

that

III.2.)

The

PSIR

also

included

a

“slanderous

lie”

Plaintiff penetrated his victim’s rectum, even though the jury
found

Plaintiff

not

guilty

of

that

charge.

(FAC

§

III.3.)

Subsequently, the Department forwarded the un-redacted PSIR to
the New York State Department of Correctional Services (“DOCS”),
in

whose

facilities

Hirsch

was

serving

his

sentence.

(FAC

§ III.4.)
The FAC asserts that the County Defendants’ failure to
investigate the veracity of the statements that they included in
the PSIR and their “willful disregard” of the trial judge’s
order to strike the “offending portions” violated his rights to
due process and equal protection.
B.

(FAC § III.6.)

Against the State Defendants
During his incarceration, Plaintiff was required to

enter

the

condition

Sex
of

Offender

earning

(FAC § III.12.)

Counseling

good-time

Program

credits

toward

(“SOCP”)
early

as

a

release.

The SOCP required participants to confess to

all offending behavior listed in their PSIRs.

(FAC § III.13.)

Thus, Defendant Pernat, a counselor at the facility, insisted
3

that Plaintiff admit to the conduct outlined in his “erroneous”
PSIR, including “horrendous crimes that he had not committed or
had been specifically found Not Guilty of committing.”

(FAC §§

III.13-14.)

Partial

And,

as

per

the

SOCP’s

“Waiver

of

Confidentiality” (the “Waiver”), any confession that Plaintiff
made during counseling would be reported to “the appropriate law
enforcement agency,” subjecting him to further prosecution and
punishment for crimes he did not commit.
The

FAC

asserts

that

Defendant

(FAC §§ III.15-16.)

Pernat’s

“insistence

on

Plaintiff’s ‘confession’ to the erroneous crimes listed in the
PSI Report, effectively precluded Plaintiff from participating
in

[SOCP],

thereby

credits.”

(FAC

“insistence”

causing

§

Plaintiff

III.17.)

violated

his

The

Fifth

to

lose

FAC

his

asserts

Amendment

good-time
that

privilege

this

against

self-incrimination and his Fifth and Fourteenth Amendment rights
to due process and equal protection.

(FAC § III.18.)

of

in

his

good-time

additional

ten

alleges

also

credits

and

a

violated

resulted

half

months

his

right

in
to

Plaintiff
prison,
due

The loss

serving

which

process

the

and

an
FAC

equal

protection.
The

FAC

further

alleges

that,

at

his

Sex

Offender

Level Hearing, Defendant Weber, an assessor for the New York
State Board of Sex Offenders, added fifteen points to his score
for “refusal to accept responsibility and his expulsion from
4

treatment,”

improperly

basing

his

decision,

in

part,

on

the

stricken portions of Plaintiff’s PSIR, “as well as charges for
which the jury specifically found the Plaintiff not guilty.”
(FAC § III.27.)

The FAC asserts that such increase in his

threat-level assessment due to his failure to complete SOCP also
violated the Constitution’s double jeopardy clause.
Plaintiff then commenced an action in Suffolk County
Criminal Court, contesting Weber’s determinations.

On December

5, 2007, Plaintiff won a partial victory when Suffolk County
Criminal Court Judge Barbara Kahn found that Weber “improperly
relied” on the stricken portions of the PSIR, and “improperly
awarded” Hirsch fifteen points for “Drug and Alcohol Abuse.”
(FAC §§ III.28-29.)

But Judge Kahn’s decision did not affect

Plaintiff’s loss of good-time credits or the additional fifteen
points that Weber added for refusing to accept responsibility
and being expelled from SOCP.

(FAC § III.31.)

These additional

fifteen points resulted in Plaintiff being designated a leveltwo

offender,

severely

restricting

his

post-release

liberty.

(FAC §§ III.31-32.)
Finally,
subjected
civilly

him

to

confined

Registration Form.

the
an
and

FAC

alleges

inquiry
was

that

regarding

used

to

(FAC § III.37.)

5

the

erroneous

whether

prepare

his

he
Sex

PSIR

should

be

Offender

This, in turn, led to the

New York State Sex Offender Registry publishing “some of the
lies in the PSI Report on the Internet.”
II.

(FAC § III.39.)

The State Defendants’ Motions to Dismiss
On December 24, 2009 and March 24, 2010, the State

Defendants filed motions to dismiss the FAC on the grounds of
sovereign immunity, collateral estoppel, and qualified immunity.
The

Court

Plaintiff

rejected
was

their

only

sovereign

suing

individual capacities.

the

immunity

State

argument

Defendants

because

in

their

Hirsch v. Desmond, No. 08-CV-2660, 2010

WL 3937303, at *2 (E.D.N.Y. Sept. 30, 2010) (hereinafter “Hirsch
I”).

The Court also rejected their argument that Plaintiff was

collaterally

estopped

from

challenging

his

designation

as

a

level-two offender because, although Justice Kahn adjudicated
the

appropriateness

of

his

risk

level

and

designation,

the

constitutional violations asserted in the FAC were never raised
or addressed by Justice Kahn.

Id. at *4.

The Court did find, however, that Plaintiff’s claims
against the State Defendants were barred by the doctrine of
qualified

immunity.

Amendment

claims

The

because

Court

dismissed

conditioning

Plaintiff’s

Plaintiff’s

Fifth

receipt

of

good-time credits and a lower registry score on his making selfincriminating statements did not violate a clearly established
right.
the

Id. at *6 (explaining that there is a circuit split on

issue

which

“refutes

any

suggestion
6

that

Hirsch

had

a

‘clearly’ established’ Fifth Amendment right not to incriminate
himself as part of SOCP”).

The Court dismissed Plaintiff’s due

process claims because, although New York recognizes a liberty
interest in a prisoner not being assigned a higher level sexoffender

status

established

than

federal

appropriate,

law

there

precluding

the

is

no

clearly

consideration

of

acquitted charges or Plaintiff’s failure to participate in SOCP
in calculating his threat-level assessment score.

Id. at *7.

The Court dismissed Plaintiff’s equal protection claims because
“the law is settled that the State has a legitimate interest in
requiring

prisoners

to

accept

responsibility

for

their

past

misconduct as part of a therapeutic process designed to reduce
recidivism.”

Id.

at

*8.

Finally,

the

Court

dismissed

Plaintiff’s double jeopardy claims because neither sex offender
registration nor the withholding of good-time credit constitutes
punishment for the purposes of double jeopardy.
Thus,

the

claims

against

the

State

Id.
Defendants

were

dismissed in their entirety.
III. The County Defendants’ Motion for Summary Judgment
On August 22, 2011, before conducting any discovery,
the County Defendants moved for summary judgment, arguing that
they are also entitled to dismissal on the grounds of absolute
or qualified immunity.

The Court granted summary judgment on

the claims against the County Defendants in their individual
7

capacities on the grounds of absolute immunity because probation
officers

are

shielded

from

suits

arising

out

of

preparation and submission of PSIRs to the Courts.

their

Hirsch v.

Desmond, No. 08-CV-2660, 2012 WL 537567, at *3-4 (E.D.N.Y. Feb.
15,

2012)

(hereinafter

“Hirsch

II”).

As

the

doctrines

of

absolute and qualified immunity only protect individuals sued in
their individual capacities, the Court denied the motion as to
Plaintiff’s

claims

against

official capacities.
were

granted

leave

the

County

Id. at *4-5 & n.7.
to

renew

their

Defendants

in

their

The County Defendants

motion

at

the

close

of

discovery.
IV.

Plaintiff’s Proposed Second Amended Complaint
Plaintiff

obtained

counsel

in

or

around

March

2012

and, on April 20, 2012, filed the pending motion to file a
second

amended

complaint.

(Docket

Entries

72,

74.)

The

Proposed Second Amended Complaint (“SAC”) reasserts due process
and equal protection claims against the County Defendants in
their official capacities arising out of their failure to verify
the accuracy of the statements contained in the PSIR.
also

seeks

to

replead

claims

against

Defendant

The SAC

Pernat

and

another unnamed SOCP counselor in their individual capacities
for violations of due process and equal protection.

While most

of the allegations in the SAC mirror those in the FAC, there is
one major difference.

The SAC alleges that Pernat not only
8

required Plaintiff to confess to the crimes of which he was
convicted and the other crimes erroneously included in the PSIR,
but she also required him to confess to a fabricated rape claim:
Upon information and belief, after
sentencing and prior to his meeting with
Defendant Pernat . . . , Pernat prepared a
document stating that Hirsch was responsible
for raping, stalking, and menacing his
victim, in addition to the sex abuse by
forcible touching he was charged with and
convicted of.
Plaintiff was never charged
or convicted of rape, stalking or menacing.
Upon
information
and
belief,
stalking and menacing were included in
Pernat’s document because of the three
unverified and unsupported sections of the
PSIR that were not stricken by the Probation
Officers in a timely manner pursuant to [the
trial judge’s] order.
Upon
information
and
belief,
Pernat also fabricated an allegation of rape
in
this
document
without
any
basis
whatsoever, despite the fact that Hirsch was
never charged or convicted of rape and the
PSIR did not include any such allegation.
(SAC ¶¶ 14-16.)3

The SAC asserts that Pernat’s “attempt[] to

force Hirsch to confess to the crimes of rape, menacing, and
stalking”

violated

protection.

his

rights

to

due

process

and

equal

(SAC ¶¶ 39-41.)

The County Defendants have consented to the filing of
the SAC (Docket Entry 77); thus, to the extent that the SAC

3

Plaintiff pleads in the alternative that such document was
prepared by the new John Doe defendant “with Pernat’s knowledge
that such allegations had no basis whatsoever.” (SAC ¶ 17.)
9

pleads

claims

GRANTED.

against

the

County

Defendants,

the

motion

is

Defendant Pernat, on the other hand, opposes in a one-

and-a-half page letter, stating that the motion should be denied
because “the Amended Complaint and the proposed Second Amended
Complaint basically set forth the same allegations against Ms.
Pernat,

which

were

already

found

to

be

insufficient

previously led to her dismissal from this action.”

and

(Docket

Entry 75.)
DISCUSSION
The

Court

will

discuss

the

applicable

standard

of

review before addressing the merits of Plaintiff’s motion.
I.

Standard of Review
Courts should grant leave to amend “when justice so

requires.”

FED. R. CIV P. 15(a)(2).

Leave to amend should be

granted unless there is evidence of undue delay, bad faith,
undue prejudice to the non-movant, or futility.
Rust–Oleum

Corp.,

244

F.3d

104,

110

(2d

See Milanese v.

Cir.

2001).

To

determine whether an amended claim is futile, courts analyze
whether

the

proposed

pleading

would

withstand

a

motion

dismiss under Federal Rule of Civil Procedure 12(b)(6).

to
See

Dougherty v. Town of N. Hempstead Bd. of Zoning Appeal, 282 F.3d
83, 88 (2d Cir. 2002).
To survive a Rule 12(b)(6) motion, a plaintiff must
plead sufficient factual allegations in the complaint to “state
10

a claim to relief that is plausible on its face.”

Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed.
2d 929 (2007).

The complaint does not need “detailed factual

allegations,” but it demands “more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action
will not do.”

Id. at 555.

In addition, the facts pled in the

complaint “must be enough to raise a right to relief above the
speculative level.”

Id.

Determining whether a plaintiff has

met her burden is “a context-specific task that requires the
reviewing court to draw on its judicial experience and common
sense.”

Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S. Ct. 1937,

173 L. Ed. 2d 868 (2009); accord Harris v. Mills, 572 F.3d 66,
72

(2d

Cir.

2009).

However,

“[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).
II.

Plaintiff’s Motion to Amend
Defendant Pernat argues that the equal protection and

due process claims asserted against her in the SAC are futile
because they are barred by the doctrine of qualified immunity
for the reasons articulated in Hirsch I.

The Court disagrees.

The allegations in the SAC are different than the allegations in
the FAC.

In the FAC, Plaintiff alleged that Defendant Pernat

insisted that he confess to all of the allegations in the PSIR,
11

whether he was charged with and/or convicted of those crimes or
not.

(FAC §§ III.13-14.)

In the SAC, Plaintiff now alleges

that Defendant Pernat also required him to confess to a crime
that she fabricated--i.e., a crime that was not included or
otherwise

mentioned

in

the

PSIR.

Thus,

the

Court

did

not

previously rule on this claim, and it is not barred by Hirsch I.
Whether

these

claims

are

otherwise

barred

by

the

doctrine of qualified immunity at this stage of the litigation4
warrants further consideration.
his

or

her

individual

A government official sued in

capacity

is

entitled

to

qualified

immunity:
(1) if the conduct attributed to him is not
prohibited by federal law; or (2) where that
conduct is so prohibited, if the plaintiff’s
right not to be subjected to such conduct by
the defendant was not clearly established at
the time of the conduct; or (3) if the
defendant’s
action
was
objective[ly]
legal[ly] reasonable[] . . . in light of the
legal rules that were clearly established at
the time it was taken.
X-Men Sec., Inc. v. Pataki, 196 F.3d 56, 65-66 (2d Cir. 1999)
(alterations and omission in original) (internal quotation marks

4

The Court notes, as it did in Hirsch I, that because qualified
immunity “necessarily involves a fact-specific inquiry, [i]t is
generally premature to address the defense . . . in a motion to
dismiss.” Maloney v. Cnty. of Nassau, 623 F. Supp. 2d 277, 292
(E.D.N.Y. 2007) (alteration in original) (internal quotation
marks and citation omitted); accord Hirsch I, 2010 WL 3937303,
at *5.
12

and

citation

omitted).

The

Court

will

address

each

of

the

claims repled against Defendants Pernat and Doe separately.
A.

Substantive Due Process
The

protects

persons

property.”

Process
against

Clause

of

the

deprivations

Fourteenth

of

U.S. CONST. amend. XIV, § 1.

violation
identify

Due

of
a

substantive

valid

due

process,

or

property

liberty

“life,

Amendment

liberty,

or

Thus, to establish a
Plaintiffs
interest.

must

first

See

Harlen

Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 503 (2d Cir.
2001); Toussie v. Cnty. of Suffolk, 806 F. Supp. 2d 558, 579
(E.D.N.Y.

2011).

This

Court

already

held

that

there

is

no

constitutionally protected liberty interest in the opportunity
to earn good-time credits.

Hirsch I, 2010 WL 3937303, at *7;

see also Abed v. Armstrong, 209 F.3d 63, 66-67 (2d Cir. 2000);
cf. Fifield v. Eaton, 669 F. Supp. 2d 294, 297 (W.D.N.Y. 2009)
(“It

is

protected
release

well-settled
liberty
from

sentence.”).

that

an

interest

prison,
There

in

prior
is,

inmate

has

parole,

to

the

however,

or

no

constitutionally

other

expiration
a

recognized

conditional
of
“a

a

valid
liberty

interest in a prisoner not being assigned a higher level sex
offender status than appropriate.”

Hirsch I, 2010 WL 3937303,

at *7; see also People v. David W., 95 N.Y.2d 130, 137, 711
N.Y.S.2d 134, 138-39, 733 N.E.2d 206, 210-11 (2000) (stating

13

that

the

“liberty

interest

in

not

being

stigmatized

as

a

sexually violent predator[] is substantial”).
Thus,

having

pled

a

valid

liberty

interest,

“to

establish a violation of substantive due process, Plaintiff[]
must show that the Defendants infringed that [liberty] interest
in

an

arbitrary

conscience.”

or

irrational

manner

that

shocks

the

Toussie, 806 F. Supp. 2d at 583; see also Natale

v. Town of Ridgefield, 170 F.3d 258, 262 (2d Cir. 1999) (“For
state action to be taken in violation of the requirements of
substantive due process, the denial must have occurred under
circumstances

warranting

‘outrageous.’”).
“[l]iability

for

The

the

Supreme

negligently

labels
Court

inflicted

‘arbitrary’

has

held

harm

is

that

and
while

categorically

beneath the constitutional due process threshold,” any actions
“deliberately intended to injure in some way unjustifiable by
any government interest is the sort of official action most
likely to rise to the conscience-shocking level.”

Cnty. of

Sacramento v. Lewis, 523 U.S. 833, 849, 118 S. Ct. 1708, 140 L.
Ed. 2d 1043 (1998) (citations omitted).
The

Court

finds

that

the

facts

in

the

SAC--namely

Pernat’s insistence that Plaintiff confess to a crime that she
knowingly fabricated, which resulted in his classification as a
higher

level

sex

offender--are

sufficiently

“outrageous” to survive a motion to dismiss.
14

“arbitrary”

and

See, e.g., Kearney

v. Goord, No. 09-CV-0679, 2011 WL 1260076, at *7 (W.D.N.Y. Mar.
4, 2011) (denying a motion to dismiss a substantive due process
claim arising out of fabricated charges of misconduct filed by
corrections

officers

against

an

inmate

in

retaliation

for

exercising his constitutional rights); Camac v. Long Beach City
Sch. Dist., No. 09-CV-5309, 2011 WL 3030345, at *4, 14 (E.D.N.Y.
July 22, 2011) (denying a motion to dismiss a substantive due
process claim arising out of a school’s knowingly false report
to the police that a student attempted suicide, which resulted
in the student’s commitment to a hospital against the parents’
wishes).
Having
violation,

the

adequately
question

pled

becomes

a

substantive

whether

such

“clearly established” at the time in question.
F.3d at 66.

due

process

violation

was

See X-Men, 196

In determining whether conduct giving rise to a

constitutional

violation

was

“clearly

established,”

“‘[o]nly

Supreme Court and Second Circuit precedent existing at the time
of

the

alleged

violation

is

relevant.’”

Hirsch

I,

2010

WL

3937303, at *6 (alteration in original) (quoting Moore v. Vega,
371

F.3d

110,

114

(2d

Cir.

2004)).

A

right

is

clearly

established if its “‘coutours [are] sufficiently clear that a
reasonable

officer

would

violates that right.’”

understand

that

what

he

is

doing

Id. (alteration in original) (quoting

Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 97 L.
15

Ed. 2d 523 (1987)).

“This is not to say that an official action

is protected by qualified immunity unless the very action in
question has previously been held unlawful, but it is to say
that in the light of pre-existing law the unlawfulness must be
apparent.”

Anderson, 483 U.S. at 640 (citations omitted).
Here,

the

Court

finds

that

the

unlawfulness

Pernat’s alleged actions was “apparent” in 2006.

of

Although there

is no clearly established law precluding the consideration of
acquitted charges in determining a sex offender’s threat level
(and thus, in forcing a sex offender to discuss those acquitted
charges in treatment), see Hirsch I, 2010 WL 3937303, at *7, the
unlawfulness

of

fabricating

a

crime

and

conditioning

the

completion of such treatment on confessing to such fabricated
crime was “apparent,” see Zahrey v. Coffey, 221 F.3d 342, 349
(2d Cir. 2000) (finding that “there is a constitutional right
not to be deprived of liberty as a result of the fabrication of
evidence by a government officer”).

Any argument that Pernat’s

actions may have been “objectively reasonable” does not appear
on

the

face

of

the

complaint,

and

thus

dismissal

on

those

grounds is inappropriate at this stage of the litigation.
McKenna

v.

Wright,

386

F.3d

432,

436

(2d

Cir.

2004)

See

(“[A]n

affirmative defense may be raised by a pre-answer motion to
dismiss”

only

complaint.”).

“if

the

defense

Accordingly,

to
16

appears
the

on

extent

the
that

face

of

Plaintiff

the
is

seeking leave to replead a substantive due process claim against
Pernat and Doe, the motion is GRANTED.
B.

Procedural Due Process
Plaintiff

procedural

due

also

process

seeks

claim

to

against

plead

a

Pernat

“stigma-plus”

and

Doe.

“To

prevail on a ‘stigma plus’ claim, a plaintiff must show (1) the
utterance of a statement sufficiently derogatory to injure his
or her reputation, that is capable of being proven false, and
that he or she claims is false, and (2) a material state-imposed
burden or state-imposed alteration of the plaintiff’s status or
rights.”

Sadallah v. City of Utica, 383 F.3d 34, 38 (2d Cir.

2004) (internal quotation marks and citation omitted).
“the

availability

claim.”
(“Because

of

adequate

process

defeats

a

However,

stigma-plus

Segal v. City of N.Y., 459 F.3d 207, 213 (2d Cir. 2006)
stigma

plus

is

a

species

within

the

phylum

of

procedural due process claims, however, it is not enough that
the plaintiff . . . demonstrate[] the deprivation of her liberty
interest; in order to bring a successful stigma-plus claim, the
plaintiff must also demonstrate that her liberty was deprived
without due process of law.”); see also DiBlasio v. Novello, 344
F.3d 292, 302 (2d Cir. 2003); Valmonte v. Bane, 18 F.3d 992,
1002 (2d Cir. 1994).
Assuming, arguendo, that the allegations in the SAC
state a stigma-plus claim, the Court finds, as it did in Hirsch
17

I, that Plaintiff has been afforded sufficient process.
I, 2010 WL 3937303, at *7.

Hirsch

Plaintiff filed a grievance after

being expelled from SOCP, which was denied, and he was afforded
the opportunity to appeal the denial.

(SAC ¶ 20.)

Plaintiff

also had a hearing before the Time Allowance Committee before
his good-time credits were withheld (SAC ¶ 21; FAC Ex. D) and a
Sex Offender Level Hearing to challenge Weber’s initial threatlevel

assessment

(FAC

§

III.27)--a

determination

that

he

challenged again in Suffolk County Criminal Court (SAC ¶¶ 2425).

As the SAC contains no allegations regarding the adequacy

of this process, to the extent that Plaintiff seeks to amend the
FAC to assert a procedural due process claim against Pernat and
Doe, the motion must be DENIED.
C.

Equal Protection
The SAC also purports to assert an equal protection

claim against Pernat and Doe.

“The Equal Protection Clause of

the Fourteenth Amendment commands that no State shall deny to
any person within its jurisdiction the equal protection of the
laws,

which

is

essentially

a

direction

that

similarly situated should be treated alike.”

all

persons

City of Cleburne

v. Cleburne Living Ctr., Inc., 473 U.S. 432, 440, 105 S. Ct.
3249, 87 L. Ed. 2d 313 (1985) (internal quotation marks and
citation

omitted).

Because

Plaintiff

is

not

a

member

of

a

suspect class, see Lee v. Governor of N.Y., 87 F.3d 55, 60 (2d
18

Cir. 1996) (“[P]risoners either in the aggregate or specified by
offense are not a suspect class . . . .”), to plead an equal
protection claim, he must assert that he was treated differently
from similarly situated individuals and either (i) that “such
differential treatment was based on impermissible considerations
such . . . as a malicious or bad faith intent to injure a
person” (“selective prosecution” equal protection) or (ii) that
there was “no rational basis for the difference in treatment”
(“class-of-one” equal protection), Cobb v. Pozzi, 363 F.3d 89,
110 (2d Cir. 2004).

As the SAC does not identify any similarly-

situated individuals--let alone any similarly-situated inmates
that

were

treated

differently--Plaintiff’s

claim fails as a matter of law.
of

Southampton,

(dismissing

the

738

F.

Supp.

plaintiffs’

equal

protection

See, e.g., MacPherson v. Town
2d

equal

353,

371

protection

(E.D.N.Y.

2010)

claim--“whether

pled as a selective enforcement claim or a class-of-one claim”
because the complaint failed to “identify any comparators or
similarly situated entities at all”).
CONCLUSION
For the foregoing reasons, Plaintiff’s motion to amend
is GRANTED IN PART and DENIED IN PART.

To the extent that it

seeks to plead due process and equal protection claims against
the County Defendants in their official capacities, the motion
is GRANTED on consent.

To the extent that it seeks to replead
19

due process and equal protection claims against Defendant Pernat
and a new John Doe Defendant in their individual capacities, the
motion is GRANTED IN PART and DENIED IN PART:

Plaintiff may

amend the FAC to assert only a substantive due process claim.
The Clerk of the Court is directed to (i) docket pages
2 through 13 of Docket Entry 74 as a separate docket entry
titled, “Second Amended Complaint”; (ii) reinstate Pernat as a
Defendant in this action; and (iii) add a new John Doe Defendant
to the caption.
SO ORDERED.

/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

February 7, 2013
Central Islip, NY

20