Griffin v. Alexander

Filing 40

DECISION AND ORDER: The Court ADOPTS Magistrate Judge Peebles' Report, Recommendation, and Order. Therefore, Defendant's motion to dismiss Plaintiff's complaint (Dkt. No. 27) is GRANTED, and Plaintiff's complaint is DISMISSED in i ts entirety with leave to convert his complaint to a habeas corpus petition. Plaintiff is given thirty (30) days from the date of this Decision & Order to advise the Court if he desires to convert the complaint to a habeas corpus petition brought pur suant to 28 U.S. C. § 2254, and if so, he will be granted additional leave so that he may file a proper petition. If Plaintiff does not advise the Court within thirty (30) days of the date of this Decision and Order that he desires to convert the matter to a habeas corpus petition, the case will be dismissed without further order from the Court. Signed by Senior Judge Thomas J. McAvoy on 9/14/11.{order served via regular mail on all non-ecf parties} (nas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________
DONALD GRIFFIN,
Plaintiff,
v.

9:09-CV-1334
(TJM/DEP)

GEORGE ALEXANDER, Chairman,
New York State Division of Parole,
Defendant.
_________________________________________
THOMAS J. McAVOY,
Senior United States District Judge

DECISION & ORDER
I.

INTRODUCTION
This pro se action brought pursuant to 42 U.S.C. § 1983 was referred by this Court

to the Hon. David E. Peebles, United States Magistrate Judge, for a Report and
Recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule N.D.N.Y. 72.3(c).
Plaintiff asserts that his right to freely exercise his religion, as protected under the
Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”), 42 U.S.C. §
2000cc et seq., and the First Amendment to the United States Constitution, was violated
when he was denied parole as a result of his refusal to participate in the Sex Offender
Counseling and Treatment Program (“SOCTP”). Plaintiff maintains that in order to
participate in and successfully complete the SOCTP, an inmate must sign a form
acknowledging that he committed the sexual acts for which he was convicted, and, during
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the program, must discuss the crime and accept responsibility for it. Plaintiff asserts,
however, that he did not commit one of the sexual acts of which he was accused and that
it would be in contravention of his religious beliefs as a Jehovah’s Witness to “lie” in order
to complete the program. Plaintiff asserts that because participation in the SOCTP is a
pre-condition to being paroled, his RLUIPA and First Amendment rights were violated
when he was denied parole on October 28, 2008. Plaintiff seeks a judgment declaring
that Defendant’s October 28, 2008 parole denial constituted a violation of the RLUIPA and
the First Amendment, and seeks a mandatory injunction directing his release on parole
and precluding the Defendant from using his refusal to sign the form and/or successfully
complete SOCTP as a basis to deny him parole.
In reviewing Defendant’s motion to dismiss the Second Amended Complaint,
Magistrate Judge Peebles concluded, inter alia, that: (1) the controversy is moot because
Plaintiff challenges only his October 28, 2008 parole denial, but this determination was
vacated by the New York Supreme Court and Plaintiff was afforded a subsequent de novo
hearing that he has not challenged here, see Rep. Rec. pp. 13-15;1 (2) Plaintiff’s claims
are precluded under the “favorable termination rule” of Heck v. Humphrey, 512 U.S. 477
(1994), id. pp. 19-20;2 (3) the action, by which Plaintiff seeks his release on parole, should
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Magistrate Judge Peebles also concluded that the m atter did not fit within the “capable of repetition,
yet evading review” exception to the m ootness doctrine.
2

See McEachin v. Selsky, 225 Fed. Appx. 36, 37 (2d Cir. 2007)(unpublished)(“Under the ‘favorable
term ination rule’ of Heck v. Hum phrey, 512 U.S. 477, 486-87, 114 S. Ct. 2364, 129 L. Ed.2d 383 (1994), if a
determ ination favorable to the plaintiff in a 42 U.S.C. § 1983 suit ‘would necessarily im ply the invalidity of his
conviction or sentence,’ a plaintiff m ust prove that the conviction or sentence has been reversed on direct
appeal or declared invalid in order to recover dam ages for an allegedly unlawful conviction under § 1983. In
Edwards v. Balisok, 520 U.S. 641, 117 S. Ct. 1584, 137 L. Ed.2d 906 (1997), the Suprem e Court ‘m ade clear
that Heck's favorable term ination rule applies to challenges m ade under § 1983 to procedures used in
disciplinary proceedings that deprived a prisoner of good-tim e credits.’ Peralta v. Vasquez, 467 F.3d 98, 103
(2d Cir. 2006) (citing and discussing Edwards, 520 U.S. 641, 117 S. Ct. 1584). ”).

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have been brought as a habeas corpus petition, id. pp. 21-23; and (4) Plaintiff fails to
allege legally cognizable First Amendment or RLUIPA claims. Id. pp. 23-30.
On the sufficiency of the allegations in the Second Amended Complaint, Magistrate
Judge Peebles noted that the form that Plaintiff was required to sign3 provides that the
inmate is “not required to admit the commission of a particular crime, whether it resulted in
the present commitment or not.” The form further provides that “for successful program
participation, [the inmate] may discuss [his] behavior in general terms without providing the
full names of victims, without disclosing exact dates, times, and places of various sexual
offending behavior, and without admitting to any specific crime or violation of any specific
section of the Penal Law.” While the form also provides that the inmate “must openly and
honestly discuss the behavior that resulted in [the inmate’s] incarceration and referral to
the program, demonstrate acceptance of responsibility for the conduct that resulted in [his]
criminal conviction and demonstrate an understanding of [the inmate’s] sexual behavior
and cycle of abuse,” Plaintiff has admitted to committing one sexual offense4 albeit
denying another. Because Plaintiff has admitted committing one sexual offense, he would
not have to “lie” in order to comply with the requirements of the SOCTP. Magistrate
Judge Peebles concluded that Plaintiff cannot demonstrate that his religious beliefs have
been substantially burdened by participation in the SOCTP and, therefore, he fails to
make out a plausible First Amendment claim. Id. pp. 23-28. For similar reasons,
Magistrate Judge Peebles concluded that Plaintiff has failed to demonstrate a plausible

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(the form is attached to the Second Am ended Com plaint as an exhibit)

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(stating that he has “long since adm itted his guilt for the robberies. . . and [one of] the sexual abuse
charges against him .” )

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RLUIPA claim. Id. pp. 28-30.
Magistrate Judge Peebles recommended that the Second Amended Complaint be
dismissed but that, because Plaintiff seeks his release from prison on parole, Plaintiff be
given thirty (30) days in which to advise the Court whether he wishes to convert the
Complaint to a habeas corpus petition brought pursuant to 28 U.S.C. § 2254. Id. pp. 3336, 38-39. Plaintiff has filed objections, pointing to certain portions of Magistrate Judge
Peebles’ Report, Recommendation and Order which he contends are erroneous.
II.

STANDARD OF REVIEW
When objections to a magistrate judge's report and recommendation are lodged,

the district court makes a “de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made.” See 28
U.S.C. § 636(b)(1)(C). After reviewing the Report-Recommendation, the Court may
“accept, reject, or modify, in whole or in part, the findings or recommendations made by
the magistrate judge. The judge may also receive further evidence or recommit the matter
to the magistrate judge with instructions.” 28 U.S.C. § 636(b)(1)(C).
III.

DISCUSSION
To the extent that the Second Amended Complaint could be liberally construed as

only challenging the requirements of the Sex Offender Counseling and Treatment
Program and not Plaintiff’s underlying conviction or the overall length of his prison term,
the action would not be barred by Heck v. Humphrey. See McEachin v. Selsky, 225 Fed.
Appx. 36, 37 (2d Cir. 2007)(Heck's rule . . . does not preclude a § 1983 claim aimed at
sanctions that do not affect the overall length of confinement.”)(citing Muhammad v.

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Close, 540 U.S. 749, 754, 124 S. Ct. 1303, 158 L. Ed.2d 32 (2004); Jenkins v. Haubert,
179 F.3d 19, 21 (2d Cir. 1999))(unpublished); see also Sealed Plaintiff v. Sealed
Defendant # 1, 537 F.3d 185, 191–92 (2d Cir. 2008) (“On occasions too numerous to
count, we have reminded district courts that ‘when [a] plaintiff proceeds pro se, ... a court
is obliged to construe his pleadings liberally.’“)(citations omitted); Cruz v. Gomez, 202 F.3d
593, 597 (2d Cir. 2000)(Courts must construe pro se pleadings broadly, and interpret them
to raise the strongest arguments that they suggest.”). When employing this same liberal
reading of the Second Amended Complaint, the action would not present a moot question
inasmuch as Plaintiff may be eligible for parole in the future and the same issue may
arise.
However, such a liberal reading of the Second Amended Complaint is unwarranted
given the specific allegations concerning the Parole Board's October 28, 2008 parole
denial and Plaintiff's demand that he be granted parole because the October 28, 2008
decision violated his right to freedom of religion. Moreover, and assuming arguendo that
such a liberal reading is employed, the Court agrees with Magistrate Judge Peebles that
Plaintiff fails to allege plausible First Amendment or RLUIPA claims. Accordingly, the
claims can be dismissed on this basis alone. Still further, inasmuch as Plaintiff seeks to
alter the fact or duration of his custody, such relief may only be obtained by way of a
habeas corpus petition. See Channer v. Mitchell, 43 F.3d 786, 787 (2d Cir. 1994) ("habeas
corpus -- not a § 1983 action -- provides the sole federal remedy where a state prisoner
challenges the fact or duration of his imprisonment . . . .") (citing Preiser v. Rodriguez, 411
U.S. 475, 490 (1973)).

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Thus, as recommended by Magistrate Judge Peebles, Plaintiff’s claims are
dismissed and he is granted leave of thirty (30) days to advise the Court whether he
wishes to convert the Second Amended Complaint to a habeas corpus petition brought
pursuant to 28 U.S.C. § 2254. If Plaintiff chooses to convert the Second Amended
Complaint to a habeas corpus petition, he will be granted leave in order to file a proper
habeas corpus petition. Plaintiff is advised that a person is generally afforded only one
habeas corpus petition unless a second petition involves newly discovered evidence of a
potentially dispositive nature, or a new and retroactive rule of constitutional law.
Accordingly, all potential claims must generally be included in the initial habeas corpus
petition. If Plaintiff does not advise the Court within thirty (30) days of the date of this
Decision and Order that he desires to convert the matter to a habeas corpus petition, the
case will be dismissed without further order from the Court.
IV.

CONCLUSION
For the reasons set forth above, the Court ADOPTS Magistrate Judge Peebles’

Report, Recommendation, and Order. Therefore, Defendant’s motion to dismiss Plaintiff’s
complaint (Dkt. No. 27) is GRANTED, and Plaintiff’s complaint is DISMISSED in its
entirety with leave to convert his complaint to a habeas corpus petition. Plaintiff is given
thirty (30) days from the date of this Decision & Order to advise the Court if he desires to
convert the complaint to a habeas corpus petition brought pursuant to 28 U.S. C. § 2254,
and if so, he will be granted additional leave so that he may file a proper petition. If Plaintiff
does not advise the Court within thirty (30) days of the date of this Decision and Order that
he desires to convert the matter to a habeas corpus petition, the case will be dismissed

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without further order from the Court.
IT IS SO ORDERED
Dated: September 14, 2011

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