James v. SCCF et al

Filing 38

ORDER granting in part and denying in part (25) Motion to Dismiss for Failure to State a Claim; denying (31) Motion to Appoint Counsel in case 2:13-cv-02344-JFB-SIL. For the reasons set forth herein, the Court dismisses the claims against the paro le officers in their official capacities, and denies the motion to dismiss the claims against them in their individual capacities. The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Memorandum and Order would not be taken in good faith and, therefore, in forma pauperis status is denied for purpose of an appeal. The Court requests that Magistrate Judge Locke supervise the discovery process with respect to the medical indifference claims against Suffolk County Sheriff Vincent DeMarco and the claims relating to the parole violation as to the individual defendants. SO ORDERED. Ordered by Judge Joseph F. Bianco on 9/17/2014. Cm to pltf by Chambers via fcm on 09/17/14 Associated Cases: 2:13-cv-02344-JFB-SIL, 2:13-cv-05011-JFB-WDW (Chipev, George)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 13-CV-2344 (JFB)(SIL)
_____________________

TRAVIS JAMES,
Plaintiff,
VERSUS

SUFFOLK COUNTY CORRECTIONAL FACILITY, ET AL.,
Defendants.
_______________________
MEMORANDUM AND ORDER
September 17, 2014
_______________________

JOSEPH F. BIANCO, District Judge:
Pro se plaintiff Travis James
(“plaintiff”) brings this 42 U.S.C. § 1983
action against defendants Suffolk County
Correctional Facility (“SCCF”), the Division
of Parole, Parole Officer Bill Henderson
(“Henderson”), Parole Officer Murphy
(“Murphy”), Parole Officer T. Mangiaracina
(“Mangiaracina”), Suffolk County Sheriff
Vincent DeMarco (“DeMarco”), and several
John Doe Officers. As relevant at this
juncture, plaintiff seeks damages against
Henderson, Murphy, and Mangiaracina
(collectively, “the parole officers”) for
issuing a warrant against plaintiff for
violating the conditions of his parole.1 (See
Amended Complaint (“AC”), p. 6.) The
parole officers move to dismiss under
Federal Rule of Civil Procedure 12(b)(6) on
the basis of qualified and sovereign
1

Plaintiff brings different claims against DeMarco,
who filed an answer on November 6, 2013. The
Court dismissed SCCF and the Division of Parole
with prejudice in an Order dated June 20, 2013.

immunity. For the following reasons, the
Court dismisses any claims against the
parole officers in their official capacities,
because those claims are barred under the
Eleventh Amendment. The Court denies the
motion to dismiss the individual defendants,
in their individual capacities, on qualified
immunity grounds. In their motion papers,
defendants argue that qualified immunity is
warranted because, at a minimum, arguable
probable cause existed for the arrest on the
parole violation. However, defendants
submitted no documents to support that
assertion and, in any event, the Court could
not consider evidence of that nature (outside
the pleadings) on a motion to dismiss. The
denial of the motion to dismiss on qualified
immunity grounds as to the individual
defendants in their individual capacities is
without prejudice to a future summary
judgment motion on that issue.

I.

Hodge, 802 F.2d at 61. A developed record
assists the court in this regard. See, e.g.,
Brooks v. New York, No. 92–CV–1508,
1992 WL 320402, at *3 (S.D.N.Y. Oct. 29,
1992)
(denying,
without
prejudice,
appointment of counsel based on pleadings’
failure to satisfy Hodge’s required threshold
showing of likely merit).

APPOINTMENT OF COUNSEL

As a threshold matter, plaintiff’s
application for appointment of counsel is
denied.
Pursuant to 28 U.S.C. § 1915(e)(1),
courts may appoint an attorney to represent
someone unable to afford counsel. Courts
possess broad discretion when determining
whether appointment is appropriate, “subject
to the requirement that it be ‘guided by
sound legal principle.’” Cooper v. A.
Sargenti Co., Inc., 877 F.2d 170, 171–72 (2d
Cir. 1989) (quoting Jenkins v. Chem. Bank,
721 F.2d 876, 879 (2d Cir. 1983)). The
Second Circuit set forth the principle as
follows:

Plaintiff commenced this action for
deprivation of his constitutional rights under
the color of state law by defendants. The
Court has reviewed plaintiff’s application
and finds that the appointment of counsel is
not warranted at this stage of the litigation,
because plaintiff has not satisfied the
threshold requirement of Hodge, 802 F.2d at
61. Moreover, even apart from the threshold
requirement, the Court is unable to
conclude, after considering the above
referenced Hodge factors in the context of
the plaintiff’s application and complaint, at
this juncture in the litigation, that the
appointment of counsel is warranted.
Specifically, the appointment of counsel is
unnecessary for the issues raised in the
complaint and the motion to dismiss.
Accordingly, plaintiff’s application for
appointment of counsel is denied without
prejudice to plaintiff renewing the
application at a later stage of these
proceedings, if circumstances warrant such
an application.

[T]he district judge should first
determine whether the indigent’s
position seems likely to be of
substance. If the claim meets this
threshold requirement, the court
should then consider the indigent’s
ability to investigate the crucial facts,
whether
conflicting
evidence
implicating the need for crossexamination will be the major proof
presented to the fact finder, the
indigent’s ability to present the case,
the complexity of the legal issues
and any special reason in that case
why appointment of counsel would
be more likely to lead to a just
determination.

II.
A.

Hendricks v. Coughlin, 114 F.3d 390, 392
(2d Cir. 1997) (quoting Hodge v. Police
Officers, 802 F.2d 58, 61–62 (2d Cir.
1986)).

BACKGROUND
Factual Allegations

The Court takes the following facts from
the amended complaint. These are not
findings of fact by the Court; instead, the
Court assumes these facts to be true for
purposes of deciding the pending motion
and construes them in a light most favorable
to plaintiff, the non-moving party.

The Second Circuit also held that these
factors are not restrictive and that “[e]ach
case must be decided on its own facts.”
2

Plaintiff
was
incarcerated
from
November 9, 2011 through July 9, 2012.
(AC, p. 6.) After his release, he reported as
directed to a parole officer within 24 hours.
(Id.) After a few weeks, plaintiff was told to
report to Riverhead to see Mangiaracina.
(Id.) Sometime later, plaintiff was arrested
for a parole violation while at an address
where officers had made home visits. (Id.)
Plaintiff claims that he was arrested for
being at that address even though the
Division
of
Parole—specifically,
Mangiaracina—had approved his presence
there. (Id.) Plaintiff appears to allege claims
of false arrest and malicious prosecution.2
B.

The parole officers did not reply. On April
3, 2014, plaintiff moved for appointment of
counsel. On September 10, 2014, plaintiff
submitted a letter to the Court containing
additional information about medical claims.
The matter is fully submitted.
III.

STANDARD OF REVIEW

In reviewing a motion to dismiss
pursuant to Federal Rule of Civil Procedure
12(b)(6), the Court must accept the factual
allegations set forth in the complaint as true
and draw all reasonable inferences in favor
of the plaintiff. See Cleveland v. Caplaw
Enters., 448 F.3d 518, 521 (2d Cir. 2006);
Nechis v. Oxford Health Plans, Inc., 421
F.3d 96, 100 (2d Cir. 2005). “In order to
survive a motion to dismiss under Rule
12(b)(6), a complaint must allege a plausible
set of facts sufficient ‘to raise a right to
relief above the speculative level.’”
Operating Local 649 Annuity Trust Fund v.
Smith Barney Fund Mgmt. LLC, 595 F.3d
86, 91 (2d Cir. 2010) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555
(2007)). This standard does not require
“heightened fact pleading of specifics, but
only enough facts to state a claim to relief
that is plausible on its face.” Twombly, 550
U.S. at 570.

Procedural Background

Plaintiff filed the complaint on April 4,
2013. On June 20, 2013, the Court sua
sponte dismissed the complaint against
SCCF and the Division of Parole with
prejudice, and dismissed the claims against
Henderson, Murphy, and DeMarco without
prejudice. On June 9, 2013, the Court
dismissed the case for failure to prosecute,
but after receiving a letter from plaintiff on
August 19, 2013, the Court reopened the
case on August 27, 2013. Plaintiff filed the
amended complaint on September 4, 2013.
The parole officers were served on October
23, 2013. The parole officers requested a
pre-motion conference in anticipation of
moving to dismiss on November 25, 2013.
They filed their motion on December 2,
2013. Plaintiff opposed on January 15, 2014.

The Supreme Court clarified the
appropriate pleading standard in Ashcroft v.
Iqbal, setting forth a two-pronged approach
for courts deciding a motion to dismiss. 556
U.S. 662 (2009). The Supreme Court
instructed district courts to first “identify[ ]
pleadings that, because they are no more
than conclusions, are not entitled to the
assumption of truth.” Id. at 679 (explaining
that though “legal conclusions can provide
the framework of a complaint, they must be
supported by factual allegations”). Second,

2

It appears that plaintiff is being held on local
charges and for parole violations. (See Motion Br., at
1.) According to the parole officers, the final parole
revocation hearing on plaintiff’s “most recent” parole
violation charges was scheduled for December 25,
2013. (Id.) The exact circumstances are unclear; the
movants have submitted no documentary evidence,
and plaintiff’s opposition is sparse.

3

Constitution and federal statutes that it
describes.” Baker v. McCollan, 443 U.S.
137, 145 n. 3 (1979). To prevail on a claim
under § 1983, a plaintiff must prove that
“(1) the challenged conduct was attributable
at least in part to a person who was acting
under color of state law and (2) the conduct
deprived the plaintiff of a right guaranteed
under the Constitution of the United States.”
Snider v. Dylag, 188 F.3d 51, 53 (2d Cir.
1999) (citation omitted).

if a complaint contains “well-pleaded factual
allegations, a court should assume their
veracity and then determine whether they
plausibly give rise to an entitlement to
relief.” Id. A claim has “facial plausibility
when the plaintiff pleads factual content that
allows the court to draw the reasonable
inference that the defendant is liable for the
misconduct alleged. The plausibility
standard is not akin to a ‘probability
requirement,’ but it asks for more than a
sheer possibility that a defendant has acted
unlawfully.” Id. at 678 (quoting and citing
Twombly, 550 U.S. at 556–57 (internal
citation omitted)).

The parole officers argue that the claims
are barred by the doctrine of qualified
immunity and the Eleventh Amendment.
Plaintiff opposes, and he notes that the
parole officers’ motion was untimely. The
Court addresses each issue in turn.

Where, as here, a plaintiff proceeds pro
se, the Court must construe the complaint
liberally in the plaintiff’s favor. See, e.g.,
McEachin v. McGuinnis, 357 F.3d 197, 200
(2d Cir. 2004); McCluskey v. N.Y. State
Unified Court Sys., No. 10-CV-2144
(JFB)(ETB), 2010 WL 2558624, at *8
(E.D.N.Y. June 17, 2010) (citing Sealed
Plaintiff v. Sealed Defendant, 537 F.3d 185,
191 (2d Cir. 2008)). Nonetheless, even
though the Court construes a pro se
complaint liberally, the complaint must still
“state a claim to relief that is plausible on its
face” to survive a motion to dismiss.
Mancuso v. Hynes, 379 F. App’x 60, 61 (2d
Cir. 2010) (summary order) (quoting Iqbal,
556 U.S. at 678); see, e.g., Harris v. Mills,
572 F.3d 66, 71–72 (2d Cir. 2009) (applying
Iqbal and Twombly standard to pro se
complaint).
IV.

A.

Untimely Motion

Plaintiff argues that the motion should
be denied because the parole officers
untimely submitted their motion to dismiss.
The summons was executed on October 17,
2013, and the pre-motion conference was
belatedly requested on November 25, 2013.
“When deciding whether to relieve a party
from default . . ., [a court will] consider the
willfulness of the default, the existence of a
meritorious defense, and the level of
prejudice that the non-defaulting party may
suffer should relief be granted.” Pecarsky v.
Galaxiworld.com Ltd., 249 F.3d 167, 171
(2d Cir. 2001). Although the parole officers
have offered no plausible explanation for
their delayed response, there is no evidence
that it was willful, and they have raised
potentially meritorious defenses in their
motion. In addition, discovery has not yet
begun, and the delay was not significant.
Thus, there is no prejudice. Finally, the
Second Circuit “has expressed on numerous
occasions its preference that litigation
disputes be resolved on the merits, not by

DISCUSSION

Plaintiff brings his claims pursuant to 42
U.S.C. § 1983. Section 1983 “is not itself a
source of substantive rights, but a method
for vindicating federal rights elsewhere
conferred by those parts of the United States
4

WL 3836024, at *8 (E.D.N.Y. Aug. 13,
2008) (“[L]awsuits against state officers
acting [in] their official capacity and
lawsuits against state courts are considered
to be lawsuits against the state.”).

default.” Cody v. Mello, 59 F.3d 13, 15 (2d
Cir. 1995). Accordingly, in its discretion, the
Court shall excuse the untimely filing.
B.

Sovereign Immunity

The parole officers argue that the claims
against them in their official capacities are
barred under the Eleventh Amendment.

New York State has not waived its
immunity and there has been no statutory
waiver. See, e.g., Marmot v. Bd. of Regents,
367 F. App’x 191, 192 (2d Cir. 2010) (“New
York has not consented to § 1983 suits in
federal court . . . .”). Moreover, the Division
of Parole is a state agency entitled to
Eleventh Amendment immunity. See
Chapman v. New York, No. 11–CV–1814
(ENV) (LB), 2011 WL 4244209, at *2
(E.D.N.Y Sept. 14, 2011) (dismissing claims
against New York and New York State
Division of Parole on Eleventh Amendment
immunity grounds (citing McCloud v.
Jackson, 4 F. App’x 7, 10 (2d Cir. 2001))).
Plaintiff’s lawsuit is brought against
individual state parole officers. Thus, to the
extent plaintiff is suing the officers for
damages in their official capacity, the claims
must be dismissed with prejudice because
defendants are entitled to Eleventh
Amendment immunity. Will, 491 U.S. at 71.

The Eleventh Amendment to the United
States Constitution provides:
The Judicial power of the United
States shall not be construed to
extend to any suit in law or equity,
commenced or prosecuted against
one of the United States by Citizens
of another State, or by Citizens or
Subjects of any Foreign State.
U.S. Const. amend. XI. “The reach of the
Eleventh Amendment has . . . been
interpreted to extend beyond the terms of its
text to bar suits in federal courts against
states, by their own citizens or by foreign
sovereigns . . . . “ State Emps. Bargaining
Agent Coalition v. Rowland, 494 F.3d 71, 95
(2d Cir. 2007) (quoting Mohegan Tribe &
Nation v. Orange Cnty., 395 F.3d 18, 20 (2d
Cir. 2004)) (alterations in original). Thus,
absent a state’s consent to suit or an express
statutory waiver, the Eleventh Amendment
bars federal court claims against states. Will
v. Mich. Dep’t of State Police, 491 U.S. 58,
66 (1989). Eleventh Amendment immunity
also extends to suits for damages against
state officers in their official capacities. See
id. at 71 (“[A] suit against a state official in
his or her official capacity is not a suit
against the official but rather is a suit against
the official’s office. As such, it is no
different from a suit against the State itself.”
(internal citation omitted)); McNamara v.
Kaye, No. 06–CV–5169 (DLI)(CLP), 2008

C.

Qualified Immunity

The parole officers argue that they are
entitled to dismissal of the claims against
them in their individual capacities on the
grounds of qualified immunity.
1.

Legal Standard

Government actors may be shielded
from liability for civil damages by qualified
immunity, i.e., if their “conduct did not
violate plaintiff’s clearly established rights,
or if it would have been objectively
reasonable for the official to believe that his
conduct did not violate plaintiff’s rights.”
5

cannot support the grant of a Fed. R. Civ. P.
12(b)(6) motion for failure to state a claim
upon which relief can be granted.” (internal
citations and quotation marks omitted)). In
particular, the facts supporting the defense
must be clear from the face of the complaint.
In addition, in such situations, “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.

Mandell v. Cnty. of Suffolk, 316 F.3d 368,
385 (2d Cir. 2003); see also Fielding v.
Tollaksen, 257 F. App’x 400, 401 (2d Cir.
2007) (“The police officers, in turn, are
protected by qualified immunity if their
actions do not violate clearly established
law, or it was objectively reasonable for
them to believe that their actions did not
violate the law.”). As the Second Circuit has
noted, “[t]his doctrine is said to be justified
in part by the risk that the ‘fear of personal
monetary liability and harassing litigation
will unduly inhibit officials in the discharge
of their duties.’” McClellan v. Smith, 439
F.3d 137, 147 (2d Cir. 2006) (quoting
Thomas v. Roach, 165 F.3d 137, 142 (2d
Cir. 1999)). Thus, qualified immunity is not
merely a defense, but rather is also “an
entitlement not to stand trial or face the
other burdens of litigation.” Mitchell v.
Forsyth, 472 U.S. 511, 526 (1985).
Accordingly, the availability of qualified
immunity should similarly be decided by a
court “[a]t the earliest possible stage in
litigation.” Hunter v. Bryant, 502 U.S. 224,
227 (1991).

2.

Application

The parole officers argue that the claims
must be dismissed under the objective
reasonableness standard because “it can
hardly be in dispute that sufficient evidence
existed to charge Plaintiff with violating the
conditions of his parole, or that no officer of
reasonable competence could believe that
probable cause existed to charge the Plaintiff
with violating his parole after he had been
arrested by the State Police and charged
with two felonies, a misdemeanor and a
violation for crimes unrelated to his [post
release supervision].” (Motion Br., at 4–5.)

Nonetheless, the Second Circuit has
emphasized that “a defendant presenting an
immunity defense on a Rule 12(b)(6) motion
instead of a motion for summary judgment
must accept the more stringent standard
applicable to this procedural route.”
McKenna v. Wright, 386 F.3d 432, 436 (2d
Cir. 2004); see also McCray v. City of New
York, Nos. 03-CV-9685, 03-CV-9974, 03CV-10080, 2007 WL 4352748, at *18
(S.D.N.Y. Dec. 11, 2007) (“A defendant
asserting a qualified immunity defense at the
12(b)(6) stage . . . faces a formidable hurdle.
Because the evidence supporting a finding
of qualified immunity is normally adduced
during the discovery process and at trial, the
defense of qualified immunity [usually]

The fundamental shortcoming with the
motion is that the Court cannot credit the
above assertion at this juncture. In
adjudicating this motion under Rule
12(b)(6), the Court may consider the
following: (1) facts alleged in the complaint
and documents attached to it or incorporated
in it by reference; (2) documents integral to
the complaint and relied upon in it, even if
not attached or incorporated by reference;
(3) documents or information contained in
defendant’s motion papers if plaintiff has
knowledge or possession of the material and
relied on it in framing the complaint; (4)
public disclosure documents required by law
to be, and that have been, filed with the
Securities and Exchange Commission; and
6

(5) facts of which judicial notice may
properly be taken under Rule 201 of the
Federal Rules of Evidence. E.g. Jones v.
Nickens, 961 F. Supp. 2d 475, 483
(E.D.N.Y. 2013); David Lerner Assocs., Inc.
v. Phila. Indem. Ins. Co., 934 F. Supp. 2d
533, 539 (E.D.N.Y. 2013), aff’d, 542 F.
App’x 89 (2d Cir. 2013); SC Note
Acquisitions, LLC v. Wells Fargo Bank,
N.A., 934 F. Supp. 2d 516, 524 (E.D.N.Y.
2013), aff’d, 548 F. App’x 741 (2d Cir.
2014). Here, no judicially noticeable
documents or facts support the parole
officers’ assertion regarding plaintiff’s
current status and why he was arrested for
the parole violation. Thus, the Court denies
the motion to dismiss on qualified immunity
grounds, without prejudice to defendants
raising this issue in a summary judgment
motion.
V.

parole violation
defendants.

as

to

the

individual

SO ORDERED.

______________________
JOSEPH F. BIANCO
United States District Judge
Dated:

September 17, 2014
Central Islip, NY

***
Plaintiff proceeds pro se. Defendants are
represented by Eric T. Shniederman,
Attorney General of the State of New York,
by Lori Pack, Assistant Attorney General,
300 Motor Parkway, Suite 230, Hauppauge,
NY 11788.

CONCLUSION

For the foregoing reasons, the Court
dismisses the claims against the parole
officers in their official capacities, and
denies the motion to dismiss the claims
against them in their individual capacities.
The Court certifies, pursuant to 28 U.S.C.
§ 1915(a)(3), that any appeal from this
Memorandum and Order would not be taken
in good faith and, therefore, in forma
pauperis status is denied for purpose of an
appeal. See Coppedge v. United States, 369
U.S. 438, 444–45 (1962).
The Court requests that Magistrate Judge
Locke supervise the discovery process with
respect to the medical indifference claims
against Suffolk County Sheriff Vincent
DeMarco3 and the claims relating to the
3

Plaintiff submitted a letter, dated September 10,
2014, containing additional information regarding his
medical claims.

7