Newman v. Herzog et al

Filing 13

DECISION & ORDERED, that the Report-Recommendation (Dkt. No. 53 in 3:17-cv-918) is ADOPTED in part and REJECTED in part; and it is further ORDERED, that Plaintiffs claims seeking damages against Annucci and Herzog, including his claims under New York law, are DISMISSED without leave to amend for the reasons stated herein and in the Report-Recommendation; and it is further ORDERED, that Plaintiffs constitutional claims challenging his conditions of post-release supervision SURVIVE sua sponte revi ew and require a response; and it is further ORDERED, that this action is CONSOLIDATED with Newman v. Stanford, Case No. 9:19-CV-118. All future filings shall be made in this case, No. 3:17-CV-918, which shall be designated as the Lead Case; and it is further ORDERED, that John S. Wallenstein Esq., 1100 Franklin Ave. # 100, Garden City, New York 11530, is appointed under 18 U.S.C. § 3006A(a)(2)(B) to represent Plaintiff/Petitioner in these consolidated cases. The Clerk is directed to prepa re the appropriate CJA 20 form (Appointment of and Authority to Pay Court Appointed Counsel) to accomplish the foregoing; and it is further ORDERED, that Plaintiff shall, as soon as practicable but no later than thirty days from the date of this Decision and Order, file a letter confirming his current address. Signed by Senior Judge Lawrence E. Kahn on July 12, 2019. (Copy served via regular mail)(sas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
JOHN NEWMAN,
Plaintiff,
-against-

3:17-CV-0918 (LEK/DEP)
9:19-CV-0118 (Member)

ANTHONY ANNUCCI, et al.,
Defendants.

DECISION AND ORDER
I.

INTRODUCTION
Plaintiff, a convicted state prisoner, filed this case on August 21, 2017 after the New

York Department of Corrections and Community Supervision (“DOCCS”) revoked his postrelease supervision and returned him to prison. Dkt. Nos. 1 (“Complaint”), 17 (“First Amended
Complaint”). He alleged that his conditions of post-release supervision and its revocation were
unconstitutional. After the Court dismissed his First Amended Complaint for failure to state a
claim, Dkt. No. 45 (“September Order”), Plaintiff filed his Second Amended Complaint, Dkt.
No. 52. On October 10, 2018, the Honorable Daniel E. Peebles, U.S. Magistrate Judge,1 issued a
Report-Recommendation screening it for sufficiency under 28 U.S.C. §§ 1915(e)(2)(B) and
1915A(b). Dkt. No. 53 (“Report-Recommendation”). He recommends that the Court dismiss this
case without giving Plaintiff another chance to replead his clams. Id. at 2.
For the reasons described below, the Court adopts the recommendation to dismiss
Plaintiff’s damages claims, but finds that his claims for injunctive relief survive and require a

1

This case was since reassigned to the Honorable Miroslav Lovric, U.S. Magistrate
Judge. Dkt. No. 61 (“Reassignment Order”).

response. In addition, the Court consolidates this case with Newman v. Stanford, Case No. 19CV-118, which involves the same operative facts and similar claims, pursuant to Rule 42(a) of
the Federal Rules of Civil Procedure. Finally, considering the complexity of the legal issues
presented in this case, the Court requests counsel to represent Plaintiff in both consolidated cases
under 18 U.S.C. § 3006A(a)(2)(B).
III.

LEGAL STANDARD
The Report-Recommendation explains the standards for reviewing a pleading under

§§ 1915(e)(2)(B) and 1915A, which require a complaint to “plead enough facts to state a claim
for relief that is plausible on is face,” Wright v. Rensselaer Cty. Jail, No. 18-1058-PR, 2019 WL
2537523 (2d Cir. June 20, 2019) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)), including facts demonstrating that the plaintiff has standing to invoke federal
jurisdiction, Zaleski v. Burns, 606 F.3d 51, 53 (2d Cir. 2010). As Plaintiff objected to the ReportRecommendation, the Court will apply those standards de novo. Fed. R. Civ. P. 72(b)(3) (“The
district judge must determine de novo any part of the magistrate judge’s disposition that has been
properly objected to” and “may accept, reject, or modify the recommended disposition; receive
further evidence; or return the matter to the magistrate judge with instructions.”); accord
28 U.S.C. § 636(b)(1)(c).
III.

FACTS AND PROCEDURAL HISTORY
The factual allegations in the Second Amended Complaint elaborate on the First

Amended Complaint, which is summarized in the September 2018 Order. As required at this
stage, the Court takes those facts as true and draws all reasonable inferences in Plaintiff’s favor.
Harnage v. Lightner, 916 F.3d 138, 141 (2d Cir. 2019).
2

Plaintiff was convicted in New York State court of third degree rape, third degree
criminal sexual act, and sexual abuse—charges stemming from two incidents involving eight and
sixteen year-old minors in 2003 and 2008. Dkt. No. 54 (“Habeas Petition”) at 1, 5; Second Am.
Compl. at 1. On August 9, 2013, Plaintiff was released from prison and began a ten-year term of
post-release supervision. Second Am. Compl. at 1. DOCCS imposed various conditions on his
release; for example, he could not contact children, including his own, or come within 1,000 feet
of “places where children congregate” (with diverse examples including “malls” “bike trails,”
and “pool halls”) without his parole officer’s permission, and he could not establish “a
relationship that can be described as, but not limited to . . . intimate, sexual, ongoing, social
and/or indiscriminate sexual encounters with another person without notifying his parole officer
and the third part(ies) of his criminal and sexual history.” Id. at 2, 5–8.
On August 19, 2013, ten days after Plaintiff’s release, DOCCS charged him with
violating his post-release supervision by entering a public library. Id. at 2. His parole was
revoked, and he spent three more years in prison. Id. During that time, he wrote letters to
DOCCS Commissioner Anthony Annucci and New York Governor Andrew Cuomo complaining
about his conditions of post-release supervision. Id. In reply to the letter to Annucci, Deputy
Commissioner Thomas Herzog dismissed Plaintiff’s concerns, stating that his release conditions
were “the same as what most law abiding citizens live by each and every day.” Id. Plaintiff was
released on January 17, 2017, but he was charged with violating his conditions again one month
later, on February 13, 2017, after parole officers conducted a “random visit” of his residence. Id.
Plaintiff suggests that the relevant conditions of post-release supervision were the same during
both of his brief periods of supervised release. Id. at 2, 5–8, 15–18.
3

When Plaintiff filed this case on August 21, 2017, he was still in prison. Compl. The
September Order dismissed his First Amended Complaint because: (1) Heck v. Humphrey, 512
U.S. 477 (1994), barred the § 1983 claims challenging his revocation; (2) he failed to allege that
the named defendants were personally involved in a violation of his constitutional rights; (3) he
did not provide enough information about his convicted offense, criminal history, or pertinent
characteristics to show that his conditions of post-release supervision were constitutionally
unreasonable; and (4) his remaining claims lacked any basis in his factual allegations. Sept. 2018
Order at 5–18. However, the Court gave Plaintiff a chance to file this Second Amended
Complaint to cure the defects. Id. at 17–18. That pleading renews the claims, described in the
September 2018 Order, alleging that Plaintiff’s conditions of release violate his constitutional
rights under the First, Fourth, and Fourteenth Amendments. Sept. 2018 Order at 10–14.2
On January 2, 2019, after the Magistrate Judge issued the Report-Recommendation,
Plaintiff filed a Motion for a Writ of Habeas Corpus making essentially the same claims
challenging his conditions of release. Dkt. No. 54 (“Habeas Petition”). He attached a DOCCS
“Parole Board Release Decision Notice” dated December 12, 2018. Dkt. No. 54 at 5–11
(“Release Notice”). The Release Notice listed a number of conditions of release, including only
some of the conditions imposed earlier. Dkt. No. 54 at 5–11 (“Release Notice”). The Habeas

2

Plaintiff does not appear to renew his previous claims under the Fifth, Eighth, and
Ninth Amendments or his challenge to the revocation of his release. See Opperisano v. P.O.
Jones, 286 F. Supp. 3d 450, 455, 462 (E.D.N.Y. 2018) (holding that Heck barred state prisoner’s
challenge to parole revocation because he could have brought a habeas action during the year he
was in prison as a result of the revocation, but he did not). He focuses instead on his conditions
of post-release supervision.
4

Petition indicated that Plaintiff would be released “back onto post-release supervision on or
before 02/13/2019.” Habeas Pet. at 1.
The Magistrate Judge directed the Clerk to open a new action concerning the Habeas
Petition, which was also assigned to this Court. Dkt. No. 59 (“January Text Order”); see also
Newman v. Stanford, Case No. 19-CV-118 (“Habeas Docket”). Filings in that case indicate that
Plaintiff was indeed released on February 13, 2019. Habeas Dkt. No. 4 (“February 2019 Order”)
at 1–2. After the Court dismissed the Petition for failure to plead exhaustion of state remedies,
Plaintiff filed an Amended Petition, Habeas Dkt. No. 6 (“Amended Petition”).
In the Amended Petition, Plaintiff alleges that on February 14, 2019 (the day after his
release), “upon reporting to his parole officer, [Plaintiff] was surprised and forced to sign an
additional 70 conditions without notice” or “an opportunity to be heard.” Id. at 2. He attached
those conditions to his Amended Petition. Dkt. No. 6-3 (“2019 Special Conditions”).
The 2019 Special Conditions included most of his previous (2013 and 2017) conditions,3
but added restrictions stating that he may not, “without [the] written permission of [his] parole
officer:” “reside with any domestic, intimate, dating, or girlfriend/boyfriend without written
permission of [his] parole officer;” must “immediately advise” his parole officer of “any dating,
intimate, sexual, or boyfriend/girlfriend type of relationship [he] become[s] involved in, or

3

There is at least one exception: DOCCS seems to have dropped the vague condition
that Plaintiff get permission before establishing “a relationship that can be described as, but not
limited to . . . intimate, sexual, ongoing, social and/or indiscriminate sexual encounters with
another person without notifying the third part(ies) of his criminal and sexual history.” See Am.
Pet. at 3–17. But it retained the other conditions the Court flagged in the September 2018 Order,
including that Plaintiff not contact minors (including presumably his own children) and stay at
least 300 yards away from “places where children congregate” with “bike trails” and “pool halls”
among the examples. Compare Am. Pet. at 13 and Spec. Cond. at 6 with Sept. 2018 Order at 3–4.
5

stop[s] being involved in” and provide “the person’s name, date of birth, address and phone
number;” and may not “have any person” with whom he has such a relationship “in [his]
residence, nor will [he] be in their “residence or company . . . during [his] curfew hours.” Id. at
7–8; 2019 Spec. Conds. at 4. He must also notify his parole officer when he “establish[es] a
relationship” and must “inform the other party of [his] criminal history concerning rape, sexual
abuse, in the presence of [his] parole officer.” Am. Pet. at 9; 2019 Spec. Conds. at 5. He must
carry “a log book truthfully detailing all of [his] daily events to include dates, times, places with
addresses, vehicle information and people with names for review by [his] parole officer at any
given time.” Am. Pet. at 8–9; Spec. Conds. at 5. And he must not “participate in any sexual
fetishes.” Am. Pet. at 12; Spec. Conds. at 6.
DOCCS revoked Plaintiff’s release again on February 22, 2019, concluding that he
violated his conditions a third time. Habeas Dkt. No. 9 (“April 2019 Letter”). Plaintiff last
reported that he was incarcerated at Broome County Jail. Id. It appears he has since been
transferred to Mid-State Correctional Facility. See Dkt. No. 62 (indicating that July 2, 2019 mail
from the Court enclosing the Reassignment Order was returned from Broome County Jail as
undeliverable).4 Plaintiff is ordered to confirm his current address and reminded of his obligation
to update the Court when his address (or institution of incarceration) changes.
II.

DISCUSSION
A. Justiciability
Before assessing the merits of Plaintiff’s claims, the Court must address its power to hear

4

Inmate Look-up, http://nysdoccslookup.doccs.ny.gov/GCA00P00/WIQ3/WINQ130
(Results for “Newman, John H.” indicating he is housed at “Midstate”).
6

those claims. See Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006) (“[C]ourts . . . have an
independent obligation to determine whether subject-matter jurisdiction exists, even in the
absence of a challenge from any party.” (citation omitted)).
Under Article III of the Constitution, federal courts may only hear “real and substantial
controversies,” and may not issue “opinion[s] advising what the law would be upon a
hypothetical state of facts.” Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477 (1990). Thus, to
show that he has standing “[t]o seek injunctive relief, a plaintiff must show that he is under threat
of suffering ‘injury in fact’ that is concrete and particularized; the threat must be actual and
imminent, not conjectural or hypothetical; it must be fairly traceable to the challenged action of
the defendant; and it must be likely that a favorable judicial decision will prevent or redress the
injury.” Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009) (citing Friends of the Earth v.
Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180–181 (2000). A threatened injury is
“imminent” if it is “‘certainly impending,’ or there is a ‘substantial risk’ that the harm will
occur.’” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014) (quoting Clapper v.
Amnesty Int’l USA, 568 U.S. 398, 409 (2013)). “[S]tanding . . . must exist at the commencement
of the litigation,” and Plaintiff must “allege facts that affirmatively and plausibly suggest that [he
or she] has standing to sue.” Carter v. HealthPort Techs., LLC, 822 F.3d 47, 55 (2d Cir. 2016).
Though not a constitutional requirement, the Court must abstain from deciding a case if
the issues would “be better decided later and . . . the parties will not have constitutional rights
undermined by the delay.” Nat’l Org. for Marriage, Inc. v. Walsh, 714 F.3d 682, 687–88 (2d Cir.
2013) (quoting Simmonds v. I.N.S., 326 F.3d 351, 357 (2d Cir. 2003)). This “prudential
ripeness” doctrine is “a tool that courts may use to enhance the accuracy of their decisions and to
7

avoid becoming embroiled in adjudications that may later turn out to be unnecessary or may
require premature examination of, especially, constitutional issues that time may make easier or
less controversial.” Id. (citation omitted). To decide whether adjudication would be premature,
courts must consider: (1) “the fitness of the issues for judicial decision” (i.e., whether they “are
contingent on future events or may never occur”); and (2) “the hardship to the parties of
withholding court consideration” (i.e., “whether the challenged action creates a direct and
immediate dilemma for the parties”). Id. (citations omitted). “Ripeness should be decided [based
on] all the information available to the court. Intervening events that occur after” the filing of the
complaint “should be included, just as must be done with questions of mootness.” 13B Fed. Prac.
& Proc. Juris. § 3532.7 (3d ed. Apr. 2019 update); see also Hargrave v. Vermont, 340 F.3d 27,
34 (2d Cir. 2003) (“[I]t is irrelevant whether the case was ripe for review when the complaint
was filed.”) (citation omitted).
The related doctrine of “mootness” operationalizes the rule that “an actual controversy
must [exist] at all stages of review, not merely at the time the complaint is filed;” if “an
intervening circumstance” deprives the case of the requisite concreteness or imminence “at any
point during litigation, the action can no longer proceed and must be dismissed as moot.”
Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 71–72 (2013) (citing Lewis, 494 U.S. at
477–478).5
5

There are two caveats to the mootness rule. First, “a defendant claiming that its
voluntary compliance moots a case bears the formidable burden of showing that it is absolutely
clear the allegedly wrongful behavior could not reasonably be expected to recur.” Laidlaw, 528
U.S. at 189. Second, a claim is not moot if it is “capable of repetition, yet evading review,”
which applies “where the following two circumstances [are] simultaneously present: ‘(1) the
challenged action [is] in its duration too short to be fully litigated prior to cessation or expiration,
and (2) there [is] a reasonable expectation that the same complaining party [will] be subject to
8

The Court previously instructed Plaintiff that “[t]o establish standing in this case, [he]
must state in his second amended complaint the reasons he believes that the defendants are likely
to impose the challenged condition(s) after he is released, such that the Court may appropriately
decide whether those conditions are unconstitutional before Plaintiff is released.” Dkt. No. 49
(“October 2018 Text Order”). Plaintiff filed his Second Amended Complaint while incarcerated
for violating his release conditions, but it did not comply with the Court’s directive; the pleading
did not spell out why Plaintiff believed DOCCS was likely to reimpose the challenged
conditions. For example, it did not indicate if Plaintiff would be released soon (or many years
from now), or whether he would be again be under DOCCS’ supervision when released.
Nevertheless, for the purposes of this initial review only, the Court finds that Plaintiff had
standing to challenge his conditions of release when he filed his Amended Complaint. By that
time, DOCCS had evidently imposed the challenged conditions twice—once in 2013 and once in
2017.6 Accordingly, it appeared that DOCCS would likely impose the same conditions again
upon Plaintiff’s release. There was no indication that Plaintiff would be incarcerated for so long
that DOCCS would deem him rehabilitated and drop the challenged conditions, or that
technological changes would “make it impossible to evaluate the condition[s’] necessity before
they took effect.” United States v. Randazzo, 763 F. App’x 140, 141 (2d Cir. 2019) (finding

the same action again.’” Spencer v. Kemna, 523 U.S. 1, 17 (1998).
6

The Court notes that even if Plaintiff lacked standing when he filed his first two
complaints, the Second Amended Complaint could cure the defect. See Scahill v. D.C., 909 F.3d
1177, 1184 (D.C. Cir. 2018) (holding that “a plaintiff may cure a standing defect under Article III
through an amended pleading alleging facts that arose after filing the original complaint”) (citing
Travelers Ins. Co. v. 633 Third Assocs., 973 F.2d 82, 87 (2d Cir. 1992) (giving plaintiff
opportunity to amend complaint to cure statutory standing defect)).
9

appeal challenging technology-dependent conditions unripe when defendant would not be
released for many years). Indeed, Plaintiff was released on February 14, 2019 on substantially the
same conditions as before.7
The Magistrate Judge concluded that even if Plaintiff had standing to challenge his
anticipated conditions of release when he filed his Second Amended Complaint, Plaintiff’s
February 22, 2019 arrest mooted his claims. R&R at 13 (“[S]ince [P]laintiff is now confined to a
DOCCS facility” and “is no longer subject to the conditions of which he complains in his
complaint . . . any cause of action seeking an injunction directing the DOCCS to relieve
[P]laintiff of any supervised release conditions and/or SORA requirements has been rendered
moot.”). The Court is unwilling to adopt this conclusion at this early stage. DOCCS’ repeated use
of the same conditions portends their re-imposition upon Plaintiff’s next release, and the Court
discerns no reason to believe the relevant facts will change before Plaintiff is released and
“expose[d] . . . to actual arrest or prosecution” under conditions that he claims “deter[ ] the
exercise of his constitutional rights.” United States v. Loy, 237 F.3d 251, 257 (3d Cir. 2001)
(quoting Steffel v. Thompson, 415 U.S. 452, 459 (1974)). Thus, Plaintiff’s claims challenging
those conditions remain ripe and are not moot. Id. at 257–58 (finding pre-release challenge to
allegedly vague restriction on pornography access to be ripe because “nothing about his
contention [would] change between now and . . . [the challenger’s] release from prison”).8

7

As discussed earlier, the one exception—the former, broad restriction on “intimate,
sexual, ongoing, social . . . relationship[s]”—was replaced by a slew of similar (albeit somewhat
clearer) restrictions on Plaintiff’s intimate relationships. See infra at 5–6 & n.3.
8

That said, if Plaintiff means to challenge the conditions that were not described in his
Second Amended Complaint, he should move to amend or supplement that pleading.
10

B. Merits
The Magistrate Judge correctly concluded that Plaintiff’s claims for damages fail because
there are no allegations showing that the named defendants were personally involved in any
constitutional violation. R&R at 10–12. Plaintiff asserts that his letter of complaint to Annucci,
and the dismissive response from Herzog, demonstrates those officials’ “deliberate indifference”
to his unconstitutional release conditions and therefore makes them responsible for when the
offending conditions were reimposed. Second Am. Compl. at 8. However, Annucci referred
Plaintiff’s second letter of complaint to Jeff McKoy, a Deputy Commissioner for Program
Services, who informed Plaintiff that “the Parole Board Commissioners are responsible for all
final determinations of parole conditions” and that he should “discuss the possible removal of
particular conditions with [his] assigned parole officer” upon release. Dkt. No. 1-1 at 11
(“McKoy Letter”). Annucci and Herzog were not “deliberately indifferent” for failing to
“intervene in advance” of the parole board’s “established procedure” for determining whether to
impose the same conditions upon Plaintiff’s release, or for directing Plaintiff to raise his
complaints with his parole officer in the first instance. Colon v. Coughlin, 58 F.3d 865, 873 (2d
Cir. 1995); see also Mateo v. Fischer, 682 F. Supp. 2d 423, 430 (S.D.N.Y. 2010) (explaining that
referring complaints to subordinates to be handled through an established process does not make
an executive official personally involved in the wrongdoing underlying the complaint).
In addition, the Court has examined Plaintiff’s state-law claim for common-law
misrepresentation and concluded that it, too, fails to cure deficiencies identified in the September
2018 Order: Plaintiff still does not explain how Herzog’s alleged misrepresentation (that
Plaintiff’s conditions are the same as “what most law abiding citizens live[ ] by”) caused him
11

injury. Second Am. Compl. at 4; see also Sept. 2018 Order at 16–17. Plaintiff’s claims
challenging the overall practice of post-release supervision also remain unmeritorious. See Sept.
2018 Order at 9–10.
However, the Court parts ways with the Magistrate Judge in one respect. The Magistrate
Judge also concluded that Heck v. Humphrey bars Plaintiff’s request to enjoin Defendants and
their agents from re-imposing and enforcing the challenged conditions of release. As the Court
noted in its September 2018 Order, the federal courts are divided over whether Heck applies to
§ 1983 claims challenging conditions of supervision. See Sept. 2018 Order at 7. Moreover, now
that Plaintiff has clarified that his criminal history does not concern his own children or computer
technology, Plaintiff raises legitimate constitutional concerns regarding several conditions of his
release—including those prohibiting him from contacting his children, being near “places where
children congregate” (which may be unconstitutionally vague), or possessing a computer or
going on the internet. See Sept. 2018 Order at 10–14 (explaining the constitutional issues such
conditions raise). The Court declines to resolve these thorny issues without briefing. See
Harnage, 916 F.3d at 141 (explaining that the Second Circuit will reverse a sua sponte dismissal
if “a liberal reading of the complaint gives any indication that a valid claim might be stated”);
Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983) (warning courts to exercise “extreme
caution . . . in ordering sua sponte dismissal of a pro se complaint before the adverse party has
been served and both parties (but particularly the plaintiff) have had an opportunity to respond”).9
9

Annucci, at least, is a proper defendant to the extent that Plaintiff seeks an injunction
against parole officers from implementing conditions in an unconstitutional manner, but perhaps
not to the extent he seeks to prevent the parole board from imposing conditions in the first
instance, Doe v. Annucci, No. 14-CV2953, 2015 WL 4393012, at *21 (S.D.N.Y. July 15, 2015).
Tina Stanford is the Chairperson of the New York Board of Parole. See Habeas Dkt. No. 4 at 1.
12

Accordingly, the Court finds that Plaintiff’s constitutional claims seeking injunctive relief
under § 1983 survive sua sponte review and require a response.
III.

CONSOLIDATION
“If actions before the court involve a common question of law or fact, the court

may . . . consolidate the actions.” Fed. R. Civ. P. 42(a); see also Rule 12, Rules Governing 2254
Proceedings (permitting the Court to apply the Federal Rules of Civil Procedure in cases brought
under § 2254). Rule 42(a) “should be prudently employed as a valuable and important tool of
judicial administration . . . to expedite trial and eliminate unnecessary repetition and
confusion . . . when savings of expense and gains of efficiency can be accomplished without
sacrifice of justice.” Devlin v. Transp. Commc’ns Int’l. Union, 175 F.3d 121, 130 (2d Cir. 1999)
(citations omitted). As indicated earlier, Plaintiff initially filed his Habeas Petition in this action,
Dkt. No. 54, and the Magistrate Judge directed that a new action, Newman v. Stanford, Case No.
19-CV-118, be opened to litigate the Habeas Petition, Jan. 2019 Text Order. However, after
reviewing both the Second Amended Complaint in this case and the Amended Petition in the
Habeas Action, the Court now finds that the two cases are based on the same facts, raise the same
constitutional claims, and their consolidation would not prejudice any party. Therefore, this
action is consolidated with Newman v. Stanford, Case No. 19-CV-118.
IV.

APPOINTMENT OF COUNSEL
The Court previously denied Plaintiff’s request for appointed counsel pending the filing

of his Second Amended Complaint. Dkt. No. 49 (“October 2018 Text Order”). Plaintiff renews
his request in his Objections, and his recent filings persuade the Court to revisit the issue.

13

18 U.S.C. § 3006A(A)(2)(B) provides that “[w]henever . . . the court determines that the
interests of justice so require, representation may be provided for any financially eligible person
who . . . is seeking relief under sections 2241, 2254, or 2255 of title 28.” To determine whether
to appoint counsel under that provision, the Court must “determine whether the indigent’s
position is likely to be of substance”—that is, whether he “appears to have some chance of
success.” Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir. 1986). Then, it must consider
“secondary criteria” such as the need for counsel to investigate facts, cross-examine witnesses, or
brief complex legal issues. Id. at 61–62.
Plaintiff is “financially eligible” for appointed counsel; he is proceeding IFP and unable
to afford a lawyer. Dkt. No. 8 (“October 2017 Order”) at 3–4. He is also “seeking relief under
section[ ] . . . 2254,” in addition to § 1983. See Newman v. Stanford, Case No. 19-CV-118, Dkt.
No. 4 (“February Order”) at 2. Furthermore, as indicated earlier, his claims have at least “some
chance of success.” Hodge, 802 F.2d at 61–62; see infra at 12. Granted, they require little factual
investigation and will not turn on credibility issues necessitating professional cross-examination.
See Hodge, 802 F.2d at 61–62. But the legal issues—including whether Plaintiff has standing to
challenge his future release conditions despite his incarceration, and whether Heck requires him
to use habeas corpus instead of § 1983—are complex, controversial, and implicate weighty
questions of federalism and the separation of powers. See Simon v. E. Kentucky Welfare Rights
Org., 426 U.S. 26, 66 (1976) (Brennan, J. concurring) (characterizing standing as “an area of
incredible complexity” and “a complicated specialty of federal jurisdiction”); Johnson v.
Mondrosch, 586 F. App’x 871, 874 (3d Cir. 2014) (describing the circuit split over “whether a
state parolee may challenge a condition of parole via a § 1983 action”).
14

Accordingly, Plaintiff’s request for appointment of counsel is granted. Counsel will be
appointed to represent Plaintiff in both this case and Case No. 19-CV-118, which are now
consolidated, because the issues in both cases are intertwined. Counsel should be prepared to
respond to any motion to dismiss the Second Amended Complaint and may move to supplement
or further amend the complaint if he deems it appropriate.8
V.

CONCLUSION
Accordingly, it is hereby:
ORDERED, that the Report-Recommendation (Dkt. No. 53) is ADOPTED in part and

REJECTED in part; and it is further
ORDERED, that Plaintiff’s claims seeking damages against Annucci and Herzog,
including his claims under New York law, are DISMISSED without leave to amend for the
reasons stated herein and in the Report-Recommendation;9 and it is further
ORDERED, that Plaintiff’s constitutional claims challenging his conditions of postrelease supervision SURVIVE sua sponte review and require a response; and it is further
ORDERED, that this action is CONSOLIDATED with Newman v. Stanford, Case No.
19-CV-118. All future filings shall be made in this case, No. 17-CV-918, which shall be
designated as the Lead Case; and it is further

8

As noted in a separate order issuing today in the Habeas Action, if Plaintiff intends to
pursue his habeas claims, he should file a consolidated amended complaint including both his
habeas and § 1983 claims and the grounds for each, stating when and how he exhausted his state
remedies for purposes of the habeas claims.
9

This ruling applies only to the damages claims against Annucci and Herzog and does
not preclude damages claims against Plaintiff’s parole officers, for example. See Doe, 2015 WL
4393012, at *9.
15

ORDERED, that John S. Wallenstein Esq., 1100 Franklin Ave. # 100, Garden City, New
York 11530, is appointed under 18 U.S.C. § 3006A(a)(2)(B) to represent Plaintiff/Petitioner in
these consolidated cases. The Clerk is directed to prepare the appropriate CJA 20 form (Appointment
of and Authority to Pay Court Appointed Counsel) to accomplish the foregoing; and it is further

ORDERED, that Plaintiff shall, as soon as practicable but no later than thirty days from
the date of this Decision and Order, file a letter confirming his current address; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Decision and Order on all
parties in accordance with the Local Rules.
IT IS SO ORDERED.

DATED:

July 12, 2019
Albany, New York

16