Lorick v. Cuomo et al

Filing 41

ORDER adopting in part and rejecting in part 36 Report and Recommendations; granting in part and denying in part 27 Motion to Dismiss for Failure to State a Claim. Any renewed motion to dismiss by Defendant Stanford must be filed within thirty days of the date of this Decision. Signed by Judge Brenda K. Sannes on 3/27/18. (Copy served on plaintiff via regular mail)(rjb, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
___________________________________________
BRUCE LORICK,
Plaintiff,
v.

9:16-CV-1002 (BKS/DEP)

ANDREW CUOMO, et al.,
Defendants.
___________________________________________
APPEARANCES:
Bruce Lorick
81-A-2502
Clinton Correctional Facility
P.O. Box 2000
Dannemora, NY 12929
Plaintiff, pro se
Maria E. Lisi-Murray, Esq.
Hon. Eric T. Schneiderman
Office of New York State Attorney General
The Capitol
Albany, NY 12224
Attorney for Defendants
Hon. Brenda K. Sannes, U. S. District Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff pro se Bruce Lorick brought this action against defendants under 42 U.S.C. §
1983 alleging that he was denied due process and equal protection under the Fourteenth
Amendment when he was denied parole release on multiple occasions. (Dkt. No. 15). Plaintiff,
an African-American, asserts that the Board of Parole intentionally discriminates against
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African-American inmates based upon their race, and that he has been denied parole based upon
an impermissible factor – his race. (Id.). Plaintiff seeks declaratory relief. (Id.). On August 8,
2017, Defendant Anthony J. Annucci filed a motion to dismiss under Fed. R. Civ. P. 12(b)(6) for
failure to state a claim. (Dkt. No. 27). Defendants Andrew Cuomo and Tina Stanford later
joined in that motion. (Dkt. No. 31). Plaintiff opposed the motion. (Dkt. No. 35). This matter
was referred to United States Magistrate Judge David E. Peebles who, on January 19, 2018,
issued a Report and Recommendation recommending that Defendants’ motion be granted and
that the amended complaint dismissed without leave to replead. (Dkt. No. 36). Plaintiff has filed
an objection to the Report and Recommendation. (Dkt. No. 37).
On March 12, 2018, the Court issued a text order noting that the Plaintiff’s claim appears
to be barred by Heck v. Humphrey, 512 U.S. 477 (1994), and giving the parties time to brief this
issue. (Dkt. No. 38). Both parties filed letter briefs in response to the text order. (Dkt. Nos 3940). Having now reviewed all of the pertinent filings in this matter, the Court adopts Magistrate
Judge Peebles’ Recommendation in part, as set forth below, and rejects it in part. The Court
grants Defendant Cuomo and Annucci’s motion to dismiss the amended complaint, with
prejudice, and denies Defendant Stanford’s motion to dismiss, without prejudice to renew.
II. Standard of Review
This court reviews de novo those portions of the Magistrate Judge’s findings and
recommendations that have been properly preserved with a specific objection. Petersen v.
Astrue, 2 F. Supp. 3d 223, 228-29 (N.D.N.Y. 2012); 28 U.S.C. § 636(b)(1)(C). Findings and
recommendations as to which there was no properly preserved objection are reviewed for clear
error. Id.

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III. Discussion
Magistrate Judge Peebles recommended that the complaint be dismissed because Plaintiff
failed to sufficiently allege the personal involvement of any of the three Defendants. (Dkt. No.
36, at 13-18). Plaintiff has objected to that recommendation. (Dkt. No. 37, at 6-7). After a de
novo review, the Court finds that Magistrate Judge Peebles thoroughly set forth the applicable
facts and the governing law regarding personal involvement. (Dkt. No. 36 at 12-18). The Court
agrees with Magistrate Judge Peebles’ determination that the amended complaint fails to plead
facts plausibly demonstrating that the Defendants were personally involved in the parole denials
to support a claim for damages, and that the amended complaint should be dismissed with
prejudice as to all three Defendants as to any claim for damages.
Plaintiff’s amended complaint, however, expressly seeks “declaratory relief,” without
further elaboration. (Dkt. No. 15, at 1). Plaintiff alleges that his right to due process and equal
protection were violated, but the amended complaint does not expressly seek damages or identify
the remedy sought. (Dkt. No. 15 at 1). While personal involvement of a defendant is a
prerequisite to an award of damages under § 1983, that rule is limited to cases in which damages
are sought; the lack of personal involvement is not a bar to an action for declaratory relief.
Justice v. Hulihan, 9:11-cv-419 (GLS/DEP), 2013 WL 5506326 at *4 2013 U.S. Dist. LEXIS
143708, at *11 (N.D.N.Y. Oct. 4. 2013); New York Youth Club v. Town of Smithtown, 867 F.
Supp. 2d 328, 339 (E.D.N.Y. 2012).
In any event, for many of the same reasons identified in Magistrate Judge Peebles’
personal involvement analysis, the Court finds that the amended complaint should be dismissed
as to Defendants Annucci and Cuomo because they are not appropriate defendants for a claim for
declaratory relief. “[A]ctions involving claims for prospective declaratory or injunctive relief are
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permissible provided the official against whom the action is brought has a direct connection to,
or responsibility for, the alleged illegal action.” Davidson v. Scully, 148 F. Supp. 2d 249, 254
(S.D.N.Y. 2001).
In this case, Defendant Annucci as the Acting Commissioner of the New York State
Department of Corrections and Community Supervision, who is alleged to be “responsible for
the daily operations of all the defendant’s prisons,” (Dkt. No. 15 at 2), does not have a direct
connection to or responsibility for alleged discrimination by the Board of Parole. (See Dkt. No.
36 at 17 n.11 (noting that “under the parole regime in effect at the relevant times in New York
defendant Annucci, as DOCCS Commissioner, did not oversee parole decisions”)). Nor does
Governor Cuomo’s general duty to faithfully execute the law, standing alone, make him a proper
party to this action. See Nolan v. Cuomo, No. 11 CV 5827 (DRH)(AKT), 2013 WL 168674 at
*9-10, 2013 U.S. Dist. LEXIS 6680, at *27 (E.D.N.Y. Jan. 13, 2013) (dismissing governor from
action seeking to enjoin the enforcement of an allegedly unconstitutional statute, and noting that
“the vast majority of courts to consider the issue have held . . . that a state officials duty to
execute the laws is not enough by itself to make that official a proper party in a suit challenging a
state statute”); Sabin v. Nelson, 7:12-cv-1373 (GLS/DEP), 2014 WL 2945770, at *3, 2014 U.S.
Dist. LEXIS 88462, at *7(N.D.N.Y. June 30, 2014) (dismissing governor from action seeking
declaratory and injunctive relief in connection with a constitutional challenge to certain New
York State laws). Since, as Magistrate Judge Peebles noted, the Court already advised Plaintiff
of the need to establish a basis for holding Defendants Annucci and Cuomo responsible, and
gave Plaintiff an opportunity to file an amended complaint, the Court concurs in the
recommendation that the amended complaint be dismissed with prejudice as to Defendants
Cuomo and Annucci. On the other hand, the allegations regarding Defendant Tina Stanford, the
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Chairperson of the New York State Board of Parole, are sufficient for declaratory relief.
Defendant Stanford is alleged to be “legally responsible for ensuring that all New York State
Parole Commissioners adhere to, and follow, the Executive Law provisions of 259 ‘Parole
Guidelines’ without discriminatory intent or impact.” (Dkt. No. 15, at 2-3).
Because Plaintiff is proceeding in forma pauperis, (Dkt. No. 14), the Court maintains an
ongoing obligation to dismiss the complaint if he has failed to state a claim. See 28 U.S.C. §
1915(e) (2)(B)(i)-(ii) (“[T]he court shall dismiss the case at any time if the court determines that .
. . the action . . . is frivolous or . . . fails to state a claim on which relief may be granted”). The
Court therefore has considered whether this action regarding the Parole Board’s allegedly
discriminatory denials of Plaintiff’s requests for parole is barred by Heck v. Humphrey, 512 U.S.
477 (1994), and sought letter briefs on that issue from the parties. (Dkt. No. 38). Both parties
responded to the Court’s request. (Dkt. Nos. 39, 40). Defendants assert that Plaintiff’s claims
are barred by Heck “since it does not appear that plaintiff is seeking prospective injunctive
relief.” (Dkt. No. 39) (citing Baker v. New York State Dep’t of Corrs. & Cmty. Supervision, No.
9:17-cv-1270 (GTS/TWD), 2018 WL 357297, at ** 4-5, 2018 U.S. Dist. LEXIS 4102, at **1112 (N.D.N.Y. Jan. 10, 2018)). 1 Plaintiff, on the other hand, argues that Heck does not bar his
claim because he “is not seeking to invalidate his conviction, but is seeking a de novo hearing.”
(Dkt. No. 40, at 5). Given this fundamental question regarding the nature of the Plaintiff’s claim
for relief, and the absence of briefing on the applicability of Heck to that claim, see, e.g.,

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Defendants correctly note, that “to the extent the amended complaint is read as seeking
plaintiff’s immediate release from incarceration,” habeas corpus is his sole federal remedy. (Dkt.
No. 39). See Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005); Baker, 2018 WL 357297, at ** 45, 2018 U.S. Dist. LEXIS 4102, at **11-12; Artis v. New York Div. of Parole, No. 11 CV 8548
VB, 2013 WL 4038592, at *2, (S.D.N.Y. July 22, 2013) (Lexis cite not available). Plaintiff
states that he is not seeking immediate release. (Dkt. No. 40, at 5).
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Wilkinson, 544 U.S. at 82; Edwards v. Balisok, 520 U.S. 641, 648-49 (1997), the Court denies
Defendant Stanford’s motion to dismiss, without prejudice to renewal. 2
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Magistrate Judge Peebles’ Report and Recommendation (Dkt. No. 36)
is ADOPTED in part and REJECTED in part, for the reasons set forth above; and it is further
ORDERED that Defendants’ motion to dismiss for failure to state a claim (Dkt. No. 27)
is GRANTED as to Defendants Annucci and Cuomo, and plaintiff’s amended complaint is
DISMISSED with prejudice as to Defendants Annucci and Cuomo; and it is further
ORDERED that to the extent the amended complaint seeks monetary damages against
Defendant Stanford, Defendant’s motion to dismiss (Dkt. No. 27) is granted and any claim
against Defendant Stanford for monetary damages is DISMISSED with prejudice; and it is
further
ORDERED that Defendant Stanford’s motion to dismiss is otherwise DENIED without
prejudice to renew; and it is further
ORDERED that any renewed motion to dismiss by Defendant Stanford must be filed
within thirty days of the date of this Decision.
ORDERED that the Clerk serve this Order on the parties in accordance with the Local
Rules.
IT IS SO ORDERED.
Dated: March 27, 2018

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By granting Defendant Stanford leave to renew, the Court does not intend to indicate any
opinion on the merits of a motion to dismiss.
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