Griffin v. New York State Board of Parole et al

Filing 7

MEMORANDUM & ORDER granting 2 Motion for Leave to Proceed in forma pauperis; For the reasons set forth above, Plaintiff's application to proceed in forma pauperis is GRANTED, however the Complaint is sua sponte DISMISSED WITH PREJUDICE as ag ainst the New York State Board of Parole, Chairwoman Evans in her official capacity and the John/Jane Does in their official capacities for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii)-(iii), 1915A (b)(1). Plaintiff i s GRANTED LEAVE TO FILE AN AMENDED COMPLAINT against the Individual Defendants in their individual capacities as set forth above. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is DENIED for the purpose of any appeal. So Ordered by Judge Joanna Seybert on 8/6/2015. C/M (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
RAYMOND GRIFFIN,
Plaintiff,

MEMORANDUM & ORDER
15-CV-2440(JS)(GRB)

-againstNEW YORK STATE BOARD OF PAROLE;
CHAIRWOMAN ANDREA EVANS,
Individually and in her Official
Capacity; and Deputy JOHN DOE and
JANE DOE, Individually and in
their Official Capacities,

Defendants.
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APPEARANCES
For Plaintiff:
Raymond Griffin, pro se
Wake County Detention Center
P.O. Box 2479
Raleigh, NC 27602
For Defendants:

No appearances.

SEYBERT, District Judge:
On April 23, 2015, incarcerated pro se plaintiff Raymond
Griffin (“Plaintiff”) filed an in forma pauperis Complaint pursuant
to 42 U.S.C. § 1983 (“Section 1983”) against the New York State
Board of Parole (“NYBOP”); Andrea Evans, Chairwoman, New York Board
of Parole (“Evans”); and two unidentified individuals described as
subordinates of Evans (“John and Jane Doe” and collectively,
“Defendants”), accompanied by an application to proceed in forma
pauperis.

Plaintiff seeks to sue the individual Defendants in

their individual and official capacities.
Upon

review

of

the

declaration

in

support

of

the

application to proceed in forma pauperis, the Court finds that

Plaintiff is qualified to commence this action without prepayment
of the filing fee.

See 28 U.S.C. § 1915(a)(1).

Therefore,

Plaintiff’s request to proceed in forma pauperis is GRANTED.
However, for the reasons that follow, the Complaint is sua sponte
DISMISSED

pursuant

to

28

U.S.C.

§§

1915(e)(2)(B)

(ii)-(iii),

1915A(b).
BACKGROUND1
Plaintiff’s

brief,

handwritten

Complaint

seeks

to

challenge his 30-day incarceration following his arrest on a parole
warrant.

According to the Complaint, Plaintiff was stopped in

January 2013 while driving a car with tinted windows that were “too
dark.”

(Compl. ¶ V.)

Plaintiff claims that he was arrested after

the officer discovered an outstanding parole warrant issued in late
2012.

(Compl. ¶ V.)

Notwithstanding Plaintiff’s explanation to

the officer that the underlying criminal case had been overturned
on

appeal,

the

officer

arrested

Plaintiff.

(Compl.

¶

V.)

Plaintiff alleges that he “did a total of about thirty days in the
County Jail and after writing the Governor all necessary parties
[he] was released.”

(Compl. at 5, ¶ V.)

Accordingly, Plaintiff

claims to have been unlawfully imprisoned and seeks to recover a
monetary

damages

($1,000,000.00).

award

in

total

sum

of

one

million

dollars

(Compl. at 6.)

1

The following facts are taken from Plaintiff’s Complaint and
are presumed to be true for the purpose of this Memorandum and
Order.
2

DISCUSSION
I.

In Forma Pauperis Application
Upon review of Plaintiff’s declaration in support of the

application to proceed in forma pauperis, the Court finds that
Plaintiff is qualified to commence this action without prepayment
of the filing fees.

See 28 U.S.C. § 1915(a)(1).

Therefore,

Plaintiff’s request to proceed in forma pauperis is GRANTED.
II.

Application of 28 U.S.C. § 1915
Section 1915 of Title 28 requires a district court to

dismiss an in forma pauperis complaint if the action is frivolous
or malicious, fails to state a claim upon which relief may be
granted, or seeks monetary relief against a defendant who is immune
from

such

1915A(b).

relief.

See

28

U.S.C.

§§

1915(e)(2)(B)(i)-(iii),

The Court is required to dismiss the action as soon as

it makes such a determination.

See id. § 1915A(b).

Courts are obliged to construe the pleadings of a pro se
plaintiff liberally. See Sealed Plaintiff v. Sealed Defendant, 537
F.3d 185, 191 (2d Cir. 2008); McEachin v. McGuinnis, 357 F.3d 197,
200 (2d Cir. 2004).

However, a complaint must plead sufficient

facts to “state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955,
1974, 167 L. Ed. 2d 929 (2007).

“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
3

misconduct alleged.”

Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.

Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009) (citation omitted).

The

plausibility standard requires “more than a sheer possibility that
a defendant has acted unlawfully.”

Id. at 678; accord Wilson v.

Merrill Lynch & Co., Inc., 671 F.3d 120, 128 (2d Cir. 2011).

While

“‘detailed factual allegations’” are not required, “[a] pleading
that offers ‘labels and conclusions’ or ‘a formulaic recitation of
the elements of a cause of action will not do.’”

Iqbal, 556 U.S.

at 678 (quoting Twombly, 550 U.S. at 555).
III. Immunity
Plaintiff names Evans and John and Jane Doe, three
employees of the New York State Division of Parole, as defendants.
Plaintiff seeks to sue these individuals in their official and
personal capacities.
monetary

award

Insofar as Plaintiff seeks to recover a

against

these

Defendants

in

their

official

capacities, they are immune from suit under the Eleventh Amendment.
Papasan v. Allain, 478 U.S. 265, 276, 106 S. Ct. 2932, 2939, 92 L.
Ed. 2d 209 (1986);

Pennhurst State Sch. & Hosp. v. Halderman, 465

U.S. 89, 98-100, 104 S. Ct. 900, 906-08, 79 L. Ed. 2d 67 (1984).
The Eleventh Amendment bars suits brought by a state’s
own citizens in federal court.

Woods v. Rondout Valley Cent. Sch.

Dist. Bd. of Educ., 466 F.3d 232, 236 (2d Cir. 2006) (citing Alden
v. Maine, 527 U.S. 706, 712, 119 S. Ct. 2240, 2246, 144 L. Ed. 2d
636 (1999)).

As an agency or arm of the State of New York, the New
4

York State Board of Parole, Division of Parole, is immune from suit
under the Eleventh Amendment.

See Kentucky v. Graham, 473 U.S.

159, 166, 105 S. Ct. 3099, 3105, 87 L. Ed. 2d 114 (1985); Stone v.
N.Y. City Dept. of Homeless Servs., 159 F. App’x 324 (2d Cir. 2005)
(affirming dismissal of Section 1983 claim against the New York
State Division of Parole as barred by the Eleventh Amendment);
Garcia v. Div. of Parole Exec. Dept., No. 09-CV-2045, 2009 WL
2392160, at *1 (E.D.N.Y. August 3, 2009) (state agencies such as
the Division of Parole “‘are entitled to assert the state’s
Eleventh Amendment immunity where, for practical purposes, the
agency is the alter ego of the state and the state is the real
party in interest.’”) (quoting Santiago v. N.Y.S. Dep’t of Corr.
Serv., 945 F.2d 25, 28 n. 1 (2d Cir. 1991)).

The Supreme Court

instructs that the Eleventh Amendment gives a state government
immunity from suit, not just from liability.

Puerto Rico Aqueduct

& Sewer Auth. v. Metcalf & Eddy, 506 U.S. 139, 144, 113 S. Ct. 684,
687, 121 L. Ed. 2d 605 (1993) (citation omitted).
Similarly, Plaintiff’s claims for damages against the
state employees sued in their official capacities are barred by the
Eleventh Amendment.

Graham, 473 U.S. at 165-167, and n. 14, (suit

for damages against state officer in official capacity is barred by
the Eleventh Amendment); Darcy v. Lippman, 356 F. App’x 434, 436-37
(2d Cir. 2009) (“Eleventh Amendment likewise bars [plaintiff] from
pursuing a claim for damages against the individual defendants in
5

their official capacities.”).

As such, Plaintiff’s claims against

these Defendants sued in their official capacities are barred by
the Eleventh Amendment to the Constitution, Idaho v. Coeur d'Alene
Tribe of Idaho, 521 U.S. 261, 268, 117 S. Ct. 2028, 2033, 138 L.
Ed. 2d 438 (1997), and are DISMISSED WITH PREJUDICE pursuant to 28
U.S.C. § 1915A(b).2
IV.

Individual Capacity Claims
Affording Plaintiff’s complaint a liberal construction as

the Court is required to do, the Court next considers whether
Plaintiff has a plausible Section 1983 claim against the Individual
Defendants in their individual capacities.

For the reasons that

follow, the Court finds that he does not.
Section 1983 provides that
[e]very person who, under color of any
statute, ordinance, regulation, custom, or
usage, of any State . . . subjects, or causes
to be subjected, any citizen of the United
States . . . to the deprivation of any rights,
privileges, or immunities secured by the
Constitution and laws, shall be liable to the
party injured . . . .
42 U.S.C. § 1983; accord Rehberg v. Paulk, --- U.S. ---- , 132 S.

2

The Court notes that the Plaintiff’s Section 1983 claims
against Defendants in their official capacities must be dismissed
for the additional reason that “[n]either a state nor one of its
agencies nor an official of that agency sued in his or her
official capacity is a ‘person’ under § 1983.” Spencer v. Doe,
139 F.3d 107, 111 (2d Cir. 1998); see also Will v. Mich. Dep’t of
State Police, 491 U.S. 58, 71, 109 S. Ct. 2304, 2312, 105 L. Ed.
2d 45 (1989).
6

Ct. 1497, 1501-02, 182 L. Ed. 2d 593 (2012).
under

Section

1983,

a

plaintiff

must

To state a claim

“‘allege

that

(1)

the

challenged conduct was attributable at least in part to a person
acting under color of state law and (2) the conduct deprived the
plaintiff of a right guaranteed under the Constitution of the
United States.’”

Rae v. County of Suffolk, 693 F. Supp. 2d 217,

223 (E.D.N.Y. 2010) (quoting Snider v. Dylag, 188 F.3d 51, 53 (2d
Cir. 1999)).

Section 1983 does not create a substantive right;

rather, to recover, a plaintiff must establish the deprivation of
a separate, federal right.

See Thomas v. Roach, 165 F.3d 137, 142

(2d Cir. 1999).
In addition, “‘[i]t is well settled in this Circuit that
personal

involvement

of

defendants

in

alleged

constitutional

deprivations is a prerequisite to an award of damages under
1983.’”

Farid v. Ellen, 593 F.3d 233, 249 (2d Cir. 2010) (quoting

Farrell v. Burke, 449 F.3d 470, 484 (2d Cir. 2006)).

“Personal

involvement” may be established by evidence of direct participation
by a supervisor in the challenged conduct, or by evidence of a
supervisory official’s “(1) failure to take corrective action after
learning of a subordinate’s unlawful conduct, (2) creation of a
policy

or

custom

fostering

the

unlawful

conduct,

(3)

gross

negligence in supervising subordinates who commit unlawful acts, or
(4) deliberate indifference to the rights of others by failing to
act on information regarding the unlawful conduct of subordinates.”
7

Hayut v. State Univ. of N.Y., 352 F.3d 733, 753 (2d Cir. 2003)
(citation omitted).

“An individual cannot be held liable for

damages under Section 1983 ‘merely because he held a high position
of authority,’. . . .”

Back v. Hastings on Hudson Union Free Sch.

Dist., 365 F.3d 107, 127 (2d Cir. 2004) (quoting Black v. Coughlin,
76 F.3d 72, 74 (2d Cir. 1996)).

A complaint based upon a violation

under Section 1983 that does not allege the personal involvement of
a defendant fails as a matter of law.

See Johnson v. Barney, 360

F. App’x 199, 201 (2d Cir. 2010).
Here,

although

Plaintiff

names

as

Defendants

the

Chairwoman of the New York State Division of Parole, a “John Doe”
and a “Jane Doe” as defendants, the Complaint is wholly devoid of
any allegations of personal involvement by any of these Defendants
with regard to the conduct underlying Plaintiff’s Section 1983
claim.

Accordingly, Plaintiff’s Section 1983 claim against these

Defendants, as pled, is implausible and is dismissed.

Moreover,

although Plaintiff states in the caption of his Complaint that the
Defendants are sued in their official and individual capacities
(Compl. at 1), the Complaint is bereft of any facts from which the
Court can reasonably construe conduct undertaken in any of the
Defendants’
Section

individual

1983

claims

capacities.
against

Accordingly,

Defendants

in

their

Plaintiff’s
individual

capacities are DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C.
§§ 1915(e)(2)(B)(ii), 1915A(b)(1).
8

V.

Leave to Amend
Given

the

Second

Circuit’s

guidance

that

a

pro

se

complaint should not be dismissed without leave to amend unless
amendment would be futile, Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d
Cir. 2000), the Court has carefully considered whether leave to
amend is warranted here.

Because the defects in Plaintiff’s

official capacity claims are substantive and would not be cured if
afforded an opportunity to amend, leave to amend these claims is
DENIED.

However,

Plaintiff

is

GRANTED

LEAVE

TO

AMEND

his

individual capacity claims in accordance with the guidance set
forth above.

Any Amended Complaint shall be clearly labeled

“Amended Complaint”, bear the same docket number as this Order, 15CV-2440(JS)(GRB), and shall be filed within thirty (30) days from
the date of this Memorandum and Order.

Failure to file an Amended

Complaint within the time allowed will lead to the dismissal of the
Complaint with prejudice and the case shall be closed.
CONCLUSION
For the reasons set forth above, Plaintiff’s application
to proceed in forma pauperis is GRANTED, however the Complaint is
sua sponte DISMISSED WITH PREJUDICE as against the New York State
Board of Parole, Chairwoman Evans in her official capacity and the
John/Jane Does in their official capacities for failure to state a
claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii)-(iii), 1915A
(b)(1).

Plaintiff is GRANTED LEAVE TO FILE AN AMENDED COMPLAINT
9

against the Individual Defendants in their individual capacities as
set forth above.

Any Amended Complaint shall be clearly labeled

“Amended Complaint”, bear the same docket number as this Order, 15CV-2440(JS)(GRB), and shall be filed within thirty (30) days from
the date of this Memorandum and Order.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3)
that any appeal from this Order would not be taken in good faith
and therefore in forma pauperis status is DENIED for the purpose of
any appeal.

See Coppedge v. United States, 369 U.S. 438, 444-45,

82 S. Ct. 917, 8 L. Ed. 2d 21 (1962).

SO ORDERED.

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

July
6 , 2015
Central Islip, New York

10