Newman v. Hoyt et al

Filing 57

DECISION AND ORDER: Granting the # 26 Motion to Dismiss for Failure to State a Claim. Because the Court finds that Plaintiff could not allege facts whichwould give him a right to relief, and because he has filed an Amended Complaint, the motion will be granted with prejudice. Signed by Senior Judge Thomas J. McAvoy on 8/6/2018. (Copy served on pro se plaintiff via regular mail)(meb)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_________________________________________
JOHN NEWMAN,
Plaintiff,
v.

3:17-CV-808
(TJM/DEP)

RICHARD HOYT AND SCOTT COOK,
Defendants.
_________________________________________
Thomas J. McAvoy,
Sr. U.S. District Judge
DECISION & ORDER

Plaintiff John Newman brings this pro se complaint pursuant to 42 U.S.C. §
1983. He alleges violations of his constitutional rights while in the custody of the New
York State Department of Corrections and Community Supervision (“DOCCS”). See
Amended Complaint dkt. #36 (“Amend. Compl.”). Defendants have filed a motion for
judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil
Procedure. The Court has determined to decide the matter without oral argument.
I.

INTRODUCTION
Plaintiff’s Amended Complaint alleges that on January 12, 2017, DOCCS

released Newman from incarceration into post-release supervision. Amend. Compl at
Statement of Claim. Plaintiff had been incarcerated for violating the terms of an earlier
release. Plaintiff alleges that Defendants Richard Hoyt and Scott Cook, who were
parole officers, entered his residence without permission on February 13, 2017. Id.

Defendants gained access via a key obtained from Plaintiff’s landlord. Id. Without
Plaintiff’s express consent or permission, Defendants entered the residence before
knocking on Plaintiff’s locked bedroom door. Id. Plaintiff opened the door for Hoyt and
Cook immediately detained Plaintiff while Hoyt searched the apartment. Id.
Defendants did not provide Plaintiff Miranda warnings before arresting him and taking
him to jail. Id. Plaintiff was not arraigned, and he claims he did not receive “any other
types of due process.” Id. Plaintiff’s Amended Complaint does not assign responsibility
to any individual for the lack of the arraignment or deprivation of due process. Id.
Plaintiff alleges that no judicial officer issued a warrant for the search of his apartment
or his arrest. Id. Plaintiff’s Amended Complaint also fails to assign responsibility for
this failing.
Plaintiff had a preliminary hearing on February 23, 2017. The hearing officer
found probable cause for a parole violation. Plaintiff was held by DOCCS until his final
hearing on September 20, 2017 and he was represented by counsel. The
Administrative Law Judge at the final hearing sustained seven parole violation charges
against Plaintiff. Plaintiff was sentenced to incarceration for the remainder of his term
of post-release supervision.
Plaintiff, while incarcerated, filed this civil complaint, pro se, against the
Defendants. Plaintiff eventually filed an Amended Complaint which raises claims based
on the conduct surrounding Plaintiff’s arrest. He raises those claims pursuant to the
Fourth, Fifth, Eighth, Ninth, and Fourteenth Amendments.
Defendants now move for judgment on the pleadings and dismissal of that
Amended Complaint. In the alternative, they argue that they are entitled to qualified
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immunity.
II.

LEGAL STANDARD
When addressing a Rule 12(c) motion, the Court employs the same standard as

for a Rule 12(b)(6) motion. Patel v. Contemporary Classics of Beverly Hills, 259 F.3d
123, 126 (2d. Cir 2001). In addressing such motions, the Court must accept “all factual
allegations in the complaint as true, and draw[] all reasonable inferences in the
plaintiff’s favor.” Holmes v. Grubman, 568 F.3d 329, 335 (2d Cir. 2009). This tenet
does not apply to legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
“Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id. at 678. “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.” Id. (quoting Bell Atl. v. Twombly, 550 U.S. 544, 570
(2007)). When, as here, the Plaintiff proceeds pro se, the Court must “‘construe [the
complaint] broadly, and interpret [it] to raise the strongest arguments that [it] suggests.’”
Weixel v. Bd. of Educ. of N.Y., 287 F.3d 138, 146 (2d Cir. 2002) (quoting Cruz v.
Gomez, 202 F.3d 593, 597 (2d Cir. 2000)). “This is especially true when dealing with
pro se complaints alleging civil rights violations.” Id.
III.

Discussion
A. Fourth Amendment Claims
Defendants first seek dismissal of Plaintiff’s Fourth Amendment Claims. The

Fourth Amendment protects "[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures[.]" U.S.

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CONST. amend. IV. Making all inferences in Plaintiff’s favor, the Amended Complaint
asserts that Defendants violated his Fourth Amendment rights when they entered his
private residence, detained him, searched his bedroom without a warrant, and arrested
him.
Determining whether Defendants violated Plaintiff’s Fourth Amendment rights
depends on the reasonableness of Defendants’ conduct. “The Fourth Amendment
protects the right of private citizens to be free from unreasonable government intrusions
into areas where they have a legitimate expectation of privacy.” United States v.
Newton, 369 F.3d 659, at 664 (2d. Cir. 2004) (citing U.S. CONST. amend. IV; Kyllo v.
United States, 533 U.S. 27, 33–34 (2001)). Because the Fourth Am endment forbids
“unreasonable searches and seizures,” the “touchstone in evaluating the permissibility
of any search is reasonableness.” United States v. Barner, 666 F.3d 79, 82-83 (2d Cir.
2012) (quoting United States v. Lifshitz, 369 F.3d 173, 178 (2d Cir.2004)); Griffin v.
Wisconsin, 483 U.S. 868, 873, (1987)). “Reasonableness ‘is determ ined by assessing,
on the one hand, the degree to which a search intrudes upon an individual's privacy
and, on the other, the degree to which it is needed for the promotion of legitimate
governmental interests.’” Barner, 666 F.3d at 83 (quoting United States v. Knights, 534
U.S. 112, 118–19 (2001) (internal citations omitted). “[T]he law recognizes certain
exceptions to th[e] rule” that reasonableness “requires a warrant and probable cause.”
Barner, 666 F.3d at 83 (quoting Newton, 369 F.3d at 665).
Special circumstances can limit a person’s reasonable expectations of privacy.
Barner 666 F.3d at 83-85; see also United States v. Knights, 534 U.S. 112, at 117. The
probation and parole system offers one such set of circumstances. “A parolee's
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reasonable expectations of privacy are less than those of ordinary citizens.” Knights,
534 U.S. at 119–20, 122. “Indeed, the Suprem e Court has found that ‘parolees . . .
have severely diminished expectations of privacy by virtue of their status alone.’”
Barner, 666 F.3d at 84 (citing Samson v. California, 547 U.S. 843, 852 (2006)).
“‘Parole is meted out in addition to, not in lieu of, incarceration[,] . . . ergo, parolees
enjoy even less of the average citizen's absolute liberty than do probationers.’” United
States v. Grimes, 225 F.3d 254, at 258 (2d Cir. 2000) (quoting United States v.
Cardona, 903 F.2d 60, 63 (1st Cir.1990)). Accordingly, “the Supreme Court has
indicated that searches of probationers may be pursued without a warrant and under a
standard lower than that of probable cause.” Barner, 666 F.3d at 84 (quoting Lifshitz,
369 F.3d at 179). Furthermore, “allegation[s] [of a parole violation] and the resulting
issuance of a warrant for retaking . . . operate to remove a parolee one step farther
from the constitutional protection enjoyed by ordinary citizens.” Barner, 666 F.3d at 84
(quoting United States v. Polito, 583 F.2d 48, 55 (2d Cir.1978)).
Parolees therefore have a significantly diminished expectation of privacy, in part
because they know the conditions of their release include permission to search.1 See
Samson v. California, 547 U.S. 843, 849 (2006) (holding that the Fourth Amendment
does not prevent police from conducting warrantless, suspicion-less searches of
parolees). Further, courts “ha[ve] repeatedly acknowledged that a State's interests in
reducing recidivism and thereby promoting reintegration and positive citizenship among

1

Plaintiff insists that he is “a citizen subject to supervision” and not “a custodial
releasee who is subject to ‘[p]arole’ supervision.” Amend. Compl. at Statement of
Claim.
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probationers and parolees warrant privacy intrusions that would not otherwise be
tolerated under the Fourth Amendment.” Id. at 853 (internal citations omitted). New
York law requires that a person on supervised release “comply faithfully with all
conditions specified in writing at the time of his release and with all other conditions and
instructions, whether oral or in writing, given him by the board, a member, an authorized
representative of the board or a parole officer.” N.Y. Comp. Codes R. & Regs. tit. 9 §
8003.1(b). This includes that “[a] releasee will permit his parole officer to visit him at his
residence and/or place of employment and will permit the search and inspection of his
person, residence and property.” N.Y.Comp. Codes R. & Regs. tit. 9 § 8003.2(d); see
Samson v. California, 547 U.S. 843, 847 (2006) (holding that “a condition of release can
so diminish or eliminate a released prisoner's reasonable expectation of privacy that a
suspicionless search by a law enforcement officer would not offend the Fourth
Amendment”).
Plaintiff alleges that Defendants’ search of his personal dwelling occurred without
a warrant and without his consent. Plaintiff cites People v. Huntley, 43 N.Y.2d 175, 401
N.Y.S.2d 31 (1977), to argue that Defendants overstepped their boundaries and
disrupted his personal life and affairs. He emphasizes that he did not consent to these
actions. “[W]hat may be unreasonable with respect to an individual who is not on
parole may be reasonable with respect to one who is.” Id. at 181 (internal citations
omitted). The Huntley court ultimately held that the intrusion into Huntley’s life and
residence was reasonable and permissible. Id. at 183. Further, “as we stated in
Newton, ‘neither Huntley nor Grimes holds that consent, whether obtained pursuant to
parole regulation . . . or otherwise, is required in addition to a reasonable relationship
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to the parole officer's duty to justify a warrantless parole search.’” Barner, 666 F.3d at
85 (2d Cir. 2012). “[T]he rule we approved in [] Grimes does not require a parolee's
consent to permit parole officers to conduct a warrantless search reasonably related to
their supervision responsibilities.” Id. (quoting United States v. Newton, 369 F.3d 659,
(2d. Cir. 2004)).
Plaintiff gave consent pursuant to regulation when he agreed to allow parole
searches of his person and residence as a condition of his release under New York law.
Defendants did not need Plaintiff’s additional express consent for their search. See
Barner, 666 F.3d at 85 (2d Cir. 2012). Parole of ficer duties bear a rational and
reasonable basis to the State’s interest “in reducing recidivism and thereby promoting
reintegration and positive citizenship.” Samson, 547 U.S. at 849; see also Barner, 666
F.3d at 85; Huntley, 43 N.Y.2d at 181. Plaintiff’s Amended Complaint does not allege
that the events of February 13, 2017, were unrelated to Defendants’ duties, nor does
the Amended Complaint allege that the search was irrational.
Plaintiff alleges that Defendants violated his Fourth Amendment rights by placing
him in handcuffs immediately before executing the search. The momentary intrusion
upon his freedom was not unreasonable, however, as officers conducting a search
have a limited “authority to detain the occupants of the premises while a proper search
is conducted.” Muehler v. Mena, 544 U.S. 93, 98 (2005) (quoting Michigan v.
Summers, 452 U.S. 692, 705 (1981).2 This authority includes using “reasonable force”

2

Summers and Muehler both involve the execution of a search warrant. Here, the
search is permissible under the conditions of Plaintiff’s post-release supervision under
N.Y.Comp. Codes R. & Regs. tit. 9 § 8003.2(d).
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to achieve the detention. See Graham v. Connor, 490 U.S. 386, 396 (“Fourth
Amendment jurisprudence has long recognized that the right to make an arrest or
investigatory stop necessarily carries with it the right to use some degree of physical
coercion or threat thereof to effect it”); Muehler, 544 U.S. at 94. Plaintiff does not allege
that Defendants used any force while he was detained. Officers have the authority to
detain individuals while searching to (1) prevent the flight of the individual if
incriminating evidence is found, (2) minimize the risk of harm to the officers, and (3)
facilitate orderly completion of the search. Muehler, 544 U.S. at 98 (citing Summers,
452 U.S. at 702-03). “An officer's authority to detain incident to a search is categorical;
it does not depend on the ‘quantum of proof justifying detention or the extent of the
intrusion to be imposed by the seizure.’” Muehler, 544 U.S. at 98. Defendants could
detain Plaintiff for a reasonable time to prevent flight, minimize harm, and facilitate an
orderly search. They placed Plaintiff in handcuffs for a brief period. Plaintiff does not
allege that this detention used unnecessary force or was of unreasonable duration.
Plaintiff therefore fails to state a Fourth Amendment claim.
Plaintiff also contends that the officers violated his rights by entering his private
residence without permission in order to gain access to his personal room. According
to Plaintiff, Defendants obtained this key from Plaintiff’s landlord, the owner of the
building. Plaintiff describes his living arrangement differently at different points in his
Amended Complaint and response to Defendants’ motion, but the type of home in
which he resides is immaterial to the analysis. By the express conditions of his postrelease supervision, Plaintiff gave consent for his home to be searched. N.Y.Comp.
Codes R. & Regs. tit. 9 § 8003.2(d). Plaintiff admits he was present for the search,
8

answered the knock on his bedroom door, and opened it for the Officers to enter. Had
Plaintiff refused the search, he would have been in violation of the conditions of his
release. Plaintiff makes no allegation that Defendants searched the area in which
Defendants entered before alerting Plaintiff of their intent to search, or that they took
any evidence from it.
Due to the conditions of his post-release supervision, Plaintiff had a diminished
expectation of privacy. Plaintiff knew that he had, by accepting the conditions of his
release, consented to parole searches of his person and home. The consent given, in
combination with Defendants’ duty to prevent recidivism and assist the parole,
demonstrates that the search was reasonable. Plaintiff fails to state a Fourth
Amendment claim for which he could recover and those claims will be dismissed.
B.

Fifth Amendment Claims

Defendants next seek dismissal of any Fifth Amendment claims. Plaintiff alleges
Defendants violated his rights by failing to read Miranda warnings before detaining him,
taking statements, searching his apartment, and arresting him. Plaintiff contends that
when Defendants entered his bedroom they immediately placed him in mechanical
restraints. “No person shall be . . . compelled in any criminal case to be a witness
against himself, nor be deprived of life, liberty, or property, without due process of
law[.]” U.S. CONST. amend. V. “[T]he safeguards prescribed by Miranda become
applicable as soon as a suspect's freedom of action is curtailed to a ‘degree associated
with formal arrest.’” Berkemer v. McCarty, 468 U.S. 420, at 440 (1984) (quoting
California v.Beheler, 463 U.S. 1121, at 1125 (1983) (per curiam )). The Second Circuit
has held that “[b]ecause Miranda 's safeguards ‘become applicable as soon as a
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suspect's freedom of action is curtailed to a degree associated with formal arrest,’ . . . ,
we must conclude that handcuffing . . . , though reasonable to the officers' investigatory
purpose under the Fourth Amendment, nevertheless placed him in custody for
purposes of Miranda.” United States v. Newton, 369 F.3d 659, 677 (2d. Cir. 2004)
(internal citation omitted).
Plaintiff alleges Defendants immediately placed him into mechanical restraints
upon opening the door for Defendants. The mechanical restraints significantly impaired
Plaintiff’s freedom to leave or refuse Defendants’ orders. Subjectively, Plaintiff appears
to view the application of mechanical restraints as comparable to an arrest. Plaintiff
alleges that “I was immediately arrested . . . by being placed into mechanical restraints.”
Amend. Compl. at Statement of Claim. The Court finds that Plaintiff was in custody for
Miranda purposes.
However, the Second Circuit has recognized that, “the Miranda warnings are
prophylactic only; they are not constitutional rights in themselves. The reading of (or
failure to read) Miranda warnings only has a presumptive effect on whether or not an
individual's Fifth Amendment rights may have been violated.” Weaver v. Brenner, 40
F.3d 527, 534 (2d Cir.1994). “[T]he failure of an officer to read an individual his
Miranda rights could not be the grounds for a civil action under 42 U.S.C. § 1983.”
United States v. Gilkeson, 431 F.Supp.2d 270, 287 (N.D.N.Y. 2006) (citing the plurality
in Chavez v. Martinez, 538 U.S. 760, 772 (2003)); see also Heyliger v. City of
Binghamton Police Department, No. 311CV1293NAMDEP, 2016 W L 1048999, at *5,
(N.D.N.Y. Mar. 11, 2016) (“[P]laintiffs cannot base a § 1983 claim solely on a law
enforcement officer's failure to administer Miranda warnings[.]”) (citing Deshawn E. by
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Charlotte E. v. Safir, 156 F.3d 340, 346 (2d Cir. 1998)).
Plaintiff alleges that he never received Miranda warnings during the events of
February 23, 2017. Plaintiff, when placed in the mechanical restraints, was in custody
for the purposes of Miranda. Plaintiff was owed Miranda warnings, and Defendants
erred if they failed to provide them. At the same time, the missing Miranda warnings
alone are not enough to state a Fifth Amendment claim. Plaintiff may have another
claim, however.
A Fifth Amendment violation could lie if Defendants coerced Plaintiff to obtain a
waiver of his right against self-incrimination, or to elicit inculpatory statements, and the
coerced statements were used against him in criminal proceedings. See Heyliger,
2016 WL 1048999, at *5, (citing Deshawn E. 156 F.3d at 346); see also Higazy v.
Templeton, 505 F.3d 161, 171 (2d Cir. 2007); Chavez v. Martinez, 538 U.S. 760, 767
(2003) (finding by the plurality that compulsory questioning without criminal proceedings
does not violate the Constitution). A high bar exists for such a claim, however, as the
coercive conduct must "so shock[] the sensibilities of civilized society as to warrant a
federal intrusion into the criminal processes of the States." Moran v. Burbine, 475 U.S.
412, at 433 (1986).
Plaintiff's Amended Complaint does not allege any statements he may have
made, or allege such statements were used against him during the hearings. In his
answer, Plaintiff argues that "parolees still have a right to Miranda for criminal
proceedings. Where [p]arole [r]evocation [t]ranscripts may be used as evidence. All
citizens have the [r]ight to be free from being a witness against him/herself." Still,
Plaintiff never claims that statements he made were coerced, nor used against him
11

unfairly, despite showing some understanding of the rights Miranda warnings protect.
In fact, Plaintiff agreed to the condition of release that he would "reply promptly, fully
and truthfully to any inquiry of or communication by his parole officer or other
representative of the Division of Parole." N.Y.Comp. Codes R. & Regs. tit. 9 §
8003.2(e). Plaintiff was required to answer questions from Defendants honestly.
Further, Plaintiff does not allege coercion was used to obtain statements, nor the use of
those statements against him.
The missing Miranda warnings alone do not provide a basis for a § 1983 claim.
In the Amended Complaint, no other claim exists for which Plaintiff could recover and
Plaintiff does not allege any additional circumstances that would give rise to such a
claim. Plaintiff's Fifth Amendment claims will be dismissed as well.
C.

Eighth Amendment Claims

Defendants also seek dismissal of Plaintiff’s Eighth Amendment claims.
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted.” U.S. CONST. amend. VIII. The Amended Complaint
contains little to no information about who violated Plaintiff’s Eighth Amendment rights
or how the violation occurred. Plaintiff does not allege any bail, fines, or conditions of
imprisonment in the Amended Complaint.
The conduct of Defendants towards Plaintiff on February 13, 2017, does not
implicate the Eighth Amendment. “[T]he State does not acquire the power to punish
with which the Eighth Amendment is concerned until after it has secured a formal
adjudication of guilt in accordance with due process of law.” Ingraham v. Wright, 430
U.S. 651, 671 n.40 (1977). Plaintiff had not yet been adjudicated guilty at the time
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relevant to the Second Amended Complaint. “Where the State seeks to impose
punishment [before a finding of guilty], the pertinent constitutional guarantee is the Due
Process Clause of the Fourteenth Amendment.” Id. The Plaintiff was on supervised
release when the violations alleged in the complaint occurred, not incarcerated or
institutionalized. “Due process requires that a pretrial detainee not be punished. A
sentenced inmate, on the other hand, may be punished, although that punishment may
not be ‘cruel and unusual’ under the Eighth Amendment.” Bell v. Wolfish, 441 U.S.
520, 535 n. 16. (1979) (Citing Ingraham, 430 U.S. at 671 n. 40).
A person lawfully committed to pretrial detention has not been adjudg ed
guilty of any crime. He has had only a "judicial determination of probable
cause as a prerequisite to [the] extended restraint of [his] liberty following
arrest. [ . . . ] Under such circumstances, the Government concededly
may detain him to ensure his presence at trial and may subject him to the
restrictions and conditions of the detention facility so long as those
conditions and restrictions do not amount to punishment, or otherwise
violate the Constitution.
Wolfish, 441 U.S. at 536-537 (internal citations omitted).
The incidents that are the subject of the Amended Complaint occurred at a time
when Plaintiff had not yet been sentenced. Plaintiff’s Eighth Amendment claims will be
dismissed.
D.

Ninth Amendment Claims

Defendants also seek to dismiss Plaintiff’s Ninth Amendment claims. “The
enumeration in the Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people.” U.S. C ONST. amend. VIII. Plaintiff asserts
that Defendants violated his Ninth Amendment rights. Plaintiff offers no factual
allegations concerning this alleged violation. “To state a claim under § 1983, a plaintiff
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must allege the violation of a right secured by the Constitution and laws of the United
States, and must show that the alleged deprivation was committed by a person acting
under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). “The Ninth
Amendment does not provide ‘an independent source of individual rights; rather, it
provides a ‘rule of construction’ that we apply in certain cases.’” Barnett v. Carberry,
420 Fed. Appx. 67, 69 (2d Cir. 2011) (citing Jenkins v. C.I.R., 483 F.3d 90, 92, 99 (2d
Cir. 2007)). The Ninth Amendment cannot be a basis for a § 1983 claim because it
does not guarantee Plaintiff any specific rights. See Lloyd v. Lee, 570 F. Supp. 2d 556,
566 (S.D.N.Y. 2008).
Plaintiff concedes he cannot raise a Ninth Amendment claim. The Defendants’
motion will be granted in this respect.
E.

Fourteenth Amendment Claims

Defendants also seek to dismiss Plaintiff’s claims that he was denied
“arraignment, or any other [t]ypes of [d]ue process” in violation of the Fourteenth
Amendment. Plaintiff’s Amended Complaint only contains the above statement, without
further contextual or factual information to understand how his Fourteenth Amendment
rights to due process were violated.
“No State shall . . . deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction the equal protection of the
laws.” U.S. Const. amend. XIV. The Supreme Court has held that "the constitutional
freedom of a parolee generated by statute is a liberty interest protected by the Due
Process Clause of the Fourteenth Amendment which may not be terminated absent
appropriate due process safeguards." Moody v. Daggett, 429 U.S. 78, 85-86 (1976)
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(citing Morrissey v. Brewer, 408 U.S. 471 (1972)). These safeguards of due process
include "the right to a hearing at which the court determines two issues: whether the
[parolee] violated a condition of [parole] as a matter of fact and, if so, whether this fact
warrants revocation." United States v. Jetter, 577 Fed. Appx. 5, 7 (2d Cir. 2014) (citing
United States v. Sanchez, 225 F.3d 172, 175 (2d Cir. 2000)). “Due process requires
that a person accused of violating the conditions of his supervised release receive a
revocation hearing ‘within a reasonable time after [the person] is taken into custody.’"
Jetter, 577 Fed. Appx. at 7 (citing Morrissey v. Brewer, 408 U.S. 471, 488 (1972)).
The Supreme Court has outlined the basic requirements of this hearing: (1)
“some minimal inquiry be conducted at or reasonably near the place of the alleged
parole violation or arrest and as promptly as convenient after arrest while information is
fresh and sources are available.”; (2) that the determination of revocation of parole be
made by someone “not directly involved in the case.”; and (3) that the parolee is given
notice that the hearing will occur, with its purpose being “to determine whether there is
probable cause to believe he has committed a parole violation.” Morrissey, 408 U.S. at
485-87. In New York, unless a parolee (or individual under post-release supervision) is
convicted of a new crime, a hearing for revocation of parole should generally occur
within fifteen days of the parole warrant. See Exec. Law § 259-i(3)(c)(i). The alleged
violator should be notified in writing within three days of the execution of the warrant.
See Exec. Law § 259-i(3)(c)(iii).
“It 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.’” Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (quoting Moffitt v. Town of
15

Brookfield, 950 F.2d 880, 885 (2d Cir.1991)). Plaintif f alleges that “after a search of my
residence, I was then taken directly to [j]ail without arraignment, or any other types of
due process.” In his response, Plaintiff acknowledges receiving a preliminary hearing,
and taking advantage of his ability to cross-examine his accuser. Plaintiff’s Amended
Complaint and response only address the lack of arraignment,3 however, and make no
other claims about lack of process related to the written notice, preliminary hearing, or
revocation hearing. The Amended Complaint fails to connect Defendants to this
alleged lack of due process. Assuming that Plaintiff was not arraigned or processed as
required, Plaintiff fails to show that either Defendant was involved in this deprivation.
As established above, "[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice to state a claim." Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). Factual allegations within Plaintiff’s complaint do not
plausibly establish that Defendants were directly involved in the claimed due process
violations. Plaintiff makes no other factual allegations to address the claim of a
Fourteenth Amendment violation and those claims will also be dismissed.
F. Qualified Immunity
In the alternative, defendants Hoyt and Cook also assert they are entitled to
qualified immunity. Plaintiff fails to state a claim upon which recovery may be granted
under § 1983, and accordingly, the Court declines to address the issue of qualified
immunity.
V. CONCLUSION
3

Plaintiff’s Response at ¶¶13 - 15 addresses what Plaintiff sees as due process
violations, but they simply mirror his Fourth Amendment violation allegations.
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For the reasons stated above the Court will grant the Defendants’ motion to
dismiss, dkt. # 26. Because the Court finds that Plaintiff could not allege facts which
would give him a right to relief, and because he has filed an Amended Complaint, the
motion will be granted with prejudice.
IT IS SO ORDERED.
DATED: August 6, 2018

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