Kalamaras v. New York State Division of Parole et al

Filing 9

MEMORANDUM & ORDER granting 2 Motion for Leave to Proceed in forma pauperis; denying 7 Motion for Preliminary Injunction; For the reasons set forth above, Plaintiff's application to proceed in forma pauperis is GRANTED, however the Compl aint is sua sponte DISMISSED WITH PREJUDICE for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii)-(iii), 1915A (b)(1). Given the dismissal of the Complaint, Plaintiff's request for injunctive relief is DENIED. The Cou rt 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. The Clerk of the Court is directed to mail a copy of this Order to the Plaintiff at his last known address and to mark this case closed. So Ordered by Judge Joanna Seybert on 11/5/2015. C/M (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
JAMES KALAMARAS,
Plaintiff,

MEMORANDUM & ORDER
15-CV-3775(JS)(ARL)

-againstNEW YORK STATE DIVISION OF PAROLE,
SR. PAROLE OFFICER PAUL MURPHY,
BUREAU CHIEF PAROLE OFFICER DENNIS
OSBORNE, and PAROLE OFFICER
“JANE DOE” MITCHELL,

Defendants.
----------------------------------X
APPEARANCES
For Plaintiff:
James Kalamaras, pro se
15002287
Nassau County Correctional Center
100 Carman Avenue
East Meadow, NY 11554
For Defendants:

No appearances.

SEYBERT, District Judge:
On June 24, 2015, incarcerated pro se plaintiff James
Kalamaras

(“Plaintiff”)

filed

an

in

forma

pauperis

Complaint

pursuant to 42 U.S.C. § 1983 (“Section 1983”) against the New York
State Division of Parole (ANYDOP@), Sr. Parole Officer Paul Murphy
(“Murphy”), Bureau Chief Parole Officer Dennis Osborne (“Osborne”),
and

Parole

Officer

“Jane

Doe”

Mitchell

(first

name

unknown)

(“Mitchell” and collectively, “Defendants”), accompanied by an
application to proceed in forma pauperis and a request for a

preliminary injunction.1

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).

Given the dismissal, Plaintiff’s request for injunctive

relief is DENIED.
BACKGROUND2
Plaintiff’s

Complaint

seeks

to

challenge

incarceration following his arrest on a parole violation.

his

According

to the Complaint, Plaintiff violated the “no cell phone policy” at
the Phoenix House Drug and Alcohol Treatment Program where he was
residing pursuant to a Court order.

(Compl. ¶ IV.)

Plaintiff

Plaintiff seeks an order “compelling Nassau County Correctional
Staff, Officer #2830 and the Nassau County Sheriff’s Department to
locate, retrieve, and forward to Plaintiff, all paperwork in
Plaintiff’s personal property, including but not limited to, parole
documents, 2014 IRS 1040 Forms, IRS Schedule C (Profit and Loss
Statements), Department of Social Services appointment letters and
Suffolk County Family and Criminal Court documents, as well as
Plaintiff’s MEDICALLY ORDERED footwear in his personal property .
. . .” (Mot. for Prelim. Inj., Docket Entry 7, at 5 (emphasis in
original.))
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

2

claims that because it was “his third time being caught with a cell
phone”, counselor Tim Collins ordered Plaintiff to “pack his
belongings and that he was being administratively discharged for his
non-compliance [with the cell phone policy].”

(Compl. at 6.)

Plaintiff was then taken to the Suffolk County Office of Parole where
he reported to the receptionist, Mitchell.

(Compl. ¶ IV and at 6.)

According to the Complaint, after a brief interview with Mitchell,
Plaintiff was advised that he “would NOT be charged with a violation
of Parole for being discharged from Phoenix House, and ordered [ ]
to report to the Parole Office again tomorrow (1/23/13) on his
regularly scheduled report day.”
original).)

(Compl. at 6 (emphasis in

Plaintiff alleges Mitchell prepared a form that

indicated that Plaintiff was required to abide by a new curfew of
7:00 p.m. to 7:00 a.m. and that the curfew shall be maintained at
his approved address of 10 Bailey Hollow Road in Stony Brook, New
York.

(Compl. at 7.)

that.”

According to Plaintiff, he “did exactly

(Compl. at 7.)
When Plaintiff reported to the Parole Office the following

day, he was arrested and taken to the Suffolk County Correctional
Facility and was held for an alleged parole violation.
7-8.)

(Compl. at

Plaintiff was charged with violating the terms of his parole

because he “failed to participate in his Board mandated treatment
at Phoenix House” and that he “failed to report a change of address
3

(from Phoenix House . . . to his home address of 10 Bailey Hollow
Road . . . AN ADDRESS DEFENDANT MITCHELL AUTHORIZED AND INSTRUCTED
PLAINTIFF TO REMAIN RESIDING AT.”
original).)

(Compl. at 8 (emphasis in

According to Plaintiff, he filed a pro se Petition for

a Writ of Habeas Corpus with the New York State Supreme Court, Suffolk
County, which was heard on February 20, 2013.

(Compl. at 9.)

Plaintiff alleges that, after hearing argument, the Honorable Emily
Pines vacated the arrest warrant, dismissed the violation of parole,
and ordered Plaintiff’s immediate release from custody.

(Compl. at

11.)
As a result of the foregoing, Plaintiff alleges claims of
malicious prosecution and unlawful confinement and seeks to recover
a monetary damages award in total sum of one million eighty thousand
dollars ($1,080,000.00).

(Compl. ¶ V.)
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
4

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
relief.

See 28 U.S.C. §§ 1915(e)(2)(B)(i)-(iii), 1915A(b).

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 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., 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,
5

550 U.S. at 555).
III. Immunity
Plaintiff names the New York State Division of Parole and
three employees thereof, as the sole Defendants.

Because seeks to

recover a monetary award 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 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
6

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
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 thus DISMISSED WITH PREJUDICE pursuant to 28
U.S.C. § 1915A(b).3

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
3

7

IV.

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 claims are substantive and

would not be cured if afforded an opportunity to amend, leave to amend
the Complaint is DENIED.

However, Plaintiff may pursue any valid

claims he may have against the Defendants in state court.
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 for failure to state a claim
pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii)-(iii), 1915A (b)(1).
Given the dismissal of the Complaint, Plaintiff’s request for
injunctive relief is DENIED.
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.

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).
8

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

The Clerk of the Court is directed

to mail a copy of this Order to the Plaintiff at his last known address
and to mark this case closed.
SO ORDERED.

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

November
5 , 2015
Central Islip, New York

9