Zielinski v. Defreest et al
Filing
34
OPINION AND ORDER re: 27 MOTION to Dismiss filed by Christopher McNeill, Jay P. Driscoll, Joanne M. Defreest, Christine M. Connolly. For the foregoing reasons, Defendants' motion to dismiss is GRANTED in part and DENIED in part. Plaintiff 39;s First and Sixth Amendment claims are DISMISSED, as are his claims for declaratory and injunctive relief. However, with respect to Plaintiff's Fourth and Fifth Amendment Bivens claims, Defendants' motion is DENIED.The Clerk of Court is directed to close the motion at docket entry number 27. (Signed by Judge J. Paul Oetken on 9/10/2013) (tro)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--------------------------------------------------------------X
:
JEREMY ZIELINSKI,
:
Plaintiff,
:
:
-v:
:
:
JOANNE M. DEFREEST, et al.,
Defendants. :
:
------------------------------------------------------------- X
12 Civ. 1160 (JPO)
OPINION AND ORDER
J. PAUL OETKEN, District Judge:
Plaintiff Jeremy Zielinski brings this civil rights action, pursuant to Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), and 42 U.S.C.
§ 1985, against Defendants Joanne M. DeFreest, Jay P. Driscoll, Christopher McNeill, and
Christine Connolly. Plaintiff alleges violations of the First, Fourth, Fifth, and Sixth
Amendments to the Constitution, seeking injunctive relief and damages. Before the Court is
Defendants’ motion to dismiss the Complaint pursuant to Federal Rules of Civil Procedure
12(b)(1) and 12(b)(6). For the reasons that follow, Defendants’ motion is granted in part and
denied in part.
I.
Background
A.
Factual Background 1
Plaintiff Jeremy Zielinski was, at all relevant times, on supervised released as part of his
sentence following a 2006 conviction in the United States District Court for the District of New
1
The following facts are taken from the First Amended Complaint (First Amended Complaint,
Dkt. No. 23 (“Complaint” or “FAC”)), and documents incorporated therein, and for the purposes
of this motion to dismiss are assumed to be true.
1
Jersey (“DNJ”) for conspiracy to commit access device fraud, in violation of 18 U.S.C. § 371.
As a result of his federal conviction, Zielinski was sentenced to a term of 21 months’
imprisonment and 2 years’ supervised release. When convicted in the DNJ, Zielinski also had
outstanding charges pending in New York State, Warren County, for engaging in sexually
explicit communications with an undercover officer posing as a minor.
After his federal sentencing, Zielinski was transferred to New York state custody, where
he pleaded guilty to one count of attempted dissemination of indecent material to a minor; one
count of promoting sexual performance by a child; and one count of bail jumping, and was
subsequently sentenced to a term in state prison. As a result of this conviction, Zielinski was
registered as a Level 2 convicted sex offender with New York State. 2
Zielinski was advised by his attorney at the time of his DNJ plea that any term of
supervised release would run concurrently with a subsequently imposed state sentence.
2
While Zielinski does not allege his status, it is evident from the publicly available New York
Sex Offender Registry, and accordingly, is a fact of which the Court may take judicial notice.
See, e.g., Ricks v. New Chrysler, No. 10 Civ. 9674 (SAS), 2011 WL 3163323, at *1 n.3
(S.D.N.Y. July 22, 2011) (“Plaintiffs’ allegations are sparse and would fail to state a claim
without construing the Complaint liberally because of plaintiffs’ pro se status. Thus, this factual
background is largely taken from attachments to New Chrysler’s motion, but pertains to publicly
available information of which the Court may take judicial notice pursuant to Rule 201 of the
Federal Rules of Evidence.” (citation omitted)); accord Brass v. Am. Film Technologies, Inc.,
987 F.2d 142, 150 (2d Cir. 1993) (“When determining the sufficiency of plaintiffs’ claim for
Rule 12(b)(6) purposes, consideration is limited to the factual allegations in plaintiffs’ amended
complaint, which are accepted as true, to documents attached to the complaint as an exhibit or
incorporated in it by reference, to matters of which judicial notice may be taken, or to documents
either in plaintiffs’ possession or of which plaintiffs had knowledge and relied on in bringing
suit.”); see also Chambers v. Time Warner, Inc., 282 F.3d 147, 154 (2d Cir. 2002) (clarifying
standard).
2
Accordingly, Zielinski believed that his federal term of supervised release would run
concurrently with, and accordingly expire during, his state incarceration.
Plaintiff was released from state prison on January 28, 2011, and had no expectation of
federal supervision. However, on or around August 1, 2011, the United States Probation Office
(“USPO”) for the DNJ contacted Zielinski, stating that he was required to be supervised pursuant
to the DNJ sentence until January 28, 2013. As Zielinski was living in New York, the DNJ
transferred jurisdiction of his supervised release to the Northern District of New York.
Defendant Joanne M. DeFreest (“DeFreest”), a USPO officer, was assigned primary
supervision of Plaintiff, and Defendants Jay P. Driscoll (“Driscoll”) and Christopher McNeill
(“McNeill”), also USPO officers, occasionally assisted in Zielinski’s supervision.
At the time of sentencing, the DNJ court imposed four special conditions of supervised
release, which were as follows: full financial disclosure; prohibition of incurring any new debts;
provision of DNA; and submission to computer equipment inspections. Zielinski alleges that on
two separate occasions DeFreest attempted to force him to accept imposition of “sex offender”
conditions, including one barring contact with his own son, but Zielinski refused. And while the
original requirements of Zielinski’s supervised release did not include any “sex offenderspecific” conditions, such as limiting contact with minors, on February 2, 2012, Zielinski’s
conditions were modified after a hearing before Judge McAvoy in the Northern District of New
York to include a prohibition on direct or indirect contact with minors other than Plaintiff’s own
child.
Several months prior to this hearing and imposition of the sex offender conditions, on
October 13, 2011, DeFreest presented Zielinski with a directive on USPO letterhead, signed by
Driscoll and McNeill, which forbade Zielinski from leaving his home on Halloween—October
3
31, 2011 (the “Halloween Directive” or “the Directive”). Additionally, the Directive prohibited
the placement of signs, decorations, decorative lights, or perceived invitations on Zielinski’s
family home, including the offering of “intriguing treats.” Zielinski was also forbidden from
answering the door if anyone under eighteen years of age was knocking or was with the
knocking individual. While the original Directive was not specifically addressed to Plaintiff,
DeFreest explained that it was a categorical restriction, applicable to all those on supervisory
release for sex crimes, registered as sex offenders, or with pending charges of a sexual nature.
At the time he received it, Zielinski objected to the Directive on the grounds that (1) he
was not on supervised release for a sexual offense; (2) his conditions in no way limited the types
of expressive or associational activities in which he was permitted to engage; (3) the Directive
violated his right to celebrate the holidays with his family; and (4) prior to imposition of such
conditions, there would need to be a modification hearing that expressly addressed his supervised
release conditions and the proposed modifications thereto. Additionally, Zielinski objected to
the fact that the Directive purported to apply to his entire family home, rather than solely to him.
Zielinski also claimed the Directive to be vague, as it failed to define many ambiguous terms,
such as “perceived invitations” and “intriguing treats.”
In response to Zielinski’s objections, DeFreest stated that the USPO could issue such
directives even in the absence of specific authorization from the sentencing court. She also
claimed that one of the standard conditions of release requires a supervisee to follow any
instructions issued by a probation officer. After Zielinski again objected to the characterization
of the USPO’s authority, he met with both DeFreest and Driscoll, at which point the two officers
reiterated that they would seek revocation of supervised release if he did not comply with their
instructions as stated in the Directive.
4
On October 25, 2011, Plaintiff made a written demand that Defendants rescind their
Directive before Halloween. The Directive remained in place. On October 28, 2011, Plaintiff
telephoned Assistant Deputy Chief Probation Officer Christine Connolly and explained his
objections to the Directive. During that phone conversation, Connolly admitted that Defendants
lacked the authority to alter the conditions of Zielinski’s supervised release without a
modification hearing. Instead of correcting the unlawful actions of DeFreest, McNeill, and
Driscoll, however, Connolly reiterated that Zielinski was required to follow instructions given by
probation officers, adding that he should follow through on resolving the issue in court.
Connolly did, however, modify the Directive to the extent of permitting Zielinski to attend his
workplace on October 31, 2011.
As a result of the Directive, Plaintiff and his family were prohibited from celebrating
Halloween together as they had planned. Zielinski also notes that once Halloween was over,
there were no means by which a reviewing court could repair the damage to Zielinski and his
family’s rights by returning them to what he refers to as the status quo ante.
As noted above, a modification hearing was later held before Judge McAvoy in the
Northern District of New York, on February 2, 2012, and the conditions of Zielinski’s supervised
release were modified to reflect sex offender-specific conditions. For example, all parties agree
that Judge McAvoy modified Zielinski’s conditions to, inter alia: (1) prohibit direct or indirect
contact with minors, excepting Zielinski’s own child; (2) mandate avoidance of any area where
minors are likely to congregate; and (3) require sex offender registration. (Declaration of Ellen
Blain, Dkt. No. 29 (“Blain Decl.”), at Ex. G.) Zielinski did appeal the validity of these
conditions (Compl. at ¶ 15 n.1), but the Second Circuit, upon review, held that Zielinski’s sex
offense justified the imposition of sex offender conditions of supervised release. See United
5
States v. Zielinski, No. 12-595 Cr., 2013 WL 536095, at *3 (2d Cir. Feb. 14, 2013) (“On the facts
presented in this appeal, we conclude that Zielinski’s relevant sex offense is not too remote so as
to justify the imposition of sex offender conditions of supervised release.”).
B.
Procedural Background
Zielinski filed his first Complaint in this action in November 2011. (Dkt. No. 1.) In May
2012, Defendants moved to dismiss the Complaint (Dkt. No. 16), and in July 2012, Zielinski
filed the FAC, which is the operative Complaint for the purposes of the instant motion (Dkt. No.
23), together with his opposition to Defendants’ motion (Dkt. No. 24). Defendants again moved
to dismiss the FAC on September 14, 2012. (Dkt. No. 27.) 3
II.
Legal Standard
A.
Motion to Dismiss
A complaint need only contain a “short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “To survive a motion to dismiss under Rule
12(b)(6), however, a complaint must plead ‘enough facts to state a claim to relief that is plausible
on its face.’” Cruz v. Rose Associates, LLC, No. 13 Civ. 0112 (JPO), 2013 WL 1387018, at *1
(S.D.N.Y. Apr. 5, 2013) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Whenever “the plaintiff pleads factual content that allows the court to draw the reasonable
3
Zielinski did not re-file his opposition to Defendants’ original motion, but to the extent that the
arguments therein have bearing on the instant motion, the Court considers them in opposition.
“‘Pro se status does not . . . excuse a plaintiff from compliance with the pleading standards of the
Federal Rules of Civil Procedure. Nor does the latitude accorded a pro se litigant excuse him
from meeting the requirements necessary to respond to dispositive motions.’ At the same time,
pro se complaints are read liberally and interpreted as raising the strongest arguments they
suggest. These rules govern the Court’s analysis.” Jean-Laurent v. Lawrence, No. 12 Civ. 1502
(JPO), 2013 WL 1129813, at *3 (S.D.N.Y. Mar. 19, 2013) (quoting Payne v. Oldcastle Precast,
Inc., No. 10 Civ. 887 (BSJ)(FM), 2012 WL 5873595, at *1 (S.D.N.Y. Nov. 19, 2012) (citations
omitted)).
6
inference that the defendant is liable for the misconduct alleged,” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (citation omitted), the claim is said to possess facial plausibility. See ATSI
Comm., Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (noting that a plaintiff must
plead “the grounds upon which his claim rests through factual allegations sufficient ‘to raise a
right to relief above the speculative level’” (quoting Twombly, 550 U.S. at 546) (footnote
omitted)). While Iqbal and Twombly mandate plausibility, they do not require a “heightened
standard that requires a complaint to include specific evidence, factual allegations in addition to
those required by Rule 8.” Artista Records, LLC v. Doe 3, 604 F.3d 110, 110 (2d Cir. 2010).
Moreover, plausibility is not tantamount to probability, but is rather a lesser burden. See
Twombly, 550 U.S. at 556.
When faced with a motion to dismiss, courts are required to “accept as true all of the
factual allegations contained in the complaint,” id. at 572 (quotations and citations omitted),
drawing “all inferences in the light most favorable to the non-moving party[] . . . .” In re NYSE
Specialists Sec. Litig., 503 F.3d 89, 95 (2d Cir. 2007). Nevertheless, “a formulaic recitation of
the elements of a cause of action will not do.” Twombly, 550 U.S. at 555.
B.
Qualified Immunity
As a defense to Plaintiff’s claims, Defendants assert qualified immunity. (Memorandum
of Law in Support of the Defendants’ Motion to Dismiss the Amended Complaint, Dkt. No. 28
(“Def.’s Mem.”), at 20.) Qualified immunity protects federal officials, such as probation
officers, from liability for discretionary actions made during the scope of their official duties
whenever: (1) “[the] ‘conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known,’” Cerrone v. Brown, 246 F.3d 194, 199
(2d Cir. 2001) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)); or (2) “it was
7
‘objectively reasonable . . . to believe that [their] actions were lawful at the time of the
challenged act.’” Id. (quoting Lennon v. Miller, 66 F.3d 416, 420 (2d Cir. 1995) (quotations and
citation omitted)). Although qualified immunity acts as an affirmative defense, it constitutes “an
immunity from suit rather than a mere defense to liability.” Mitchell v. Forsyth, 472 U.S. 511,
526 (1985) (emphasis in original). Accordingly, it is appropriate to decide the issue of qualified
immunity, when raised, early in the litigation process. See Pani v. Empire Blue Cross Blue
Shield, 152 F.3d 67, 74-75 (2d Cir. 1998) (“It is also well established that an affirmative defense
of official immunity should be resolved as early as possible by the court, and may be resolved by
Rule 12(b)(6) if clearly established by the allegations within the complaint.” (citations omitted));
Torres v. Vill. of Sleepy Hollow, 379 F. Supp. 2d 478, 483 (S.D.N.Y. 2005) (“[T]he availability
of qualified immunity ought to be decided by a court at the earliest possible opportunity—
preferably at the outset of the case, at which point plaintiff’s well pleaded allegations are
assumed to be true, and defendant’s version of the facts is immaterial.”).
III.
Claims for Monetary Relief
A.
Fifth Amendment Claim 4
Zielinski alleges violations of his Fifth Amendment rights associated with the imposition
of various conditions of supervised release by Defendants, who are probation officers, rather
than by a district court judge at his sentencing or a properly held modification hearing.
4
Zielinski also asserts a Sixth Amendment claim, alleging that his right to counsel was denied
when the conditions of his supervised release were modified without a hearing, as mandated by
Federal Rule of Criminal Procedure 32.1. To the extent, however, that Zielinski asserts a Sixth
Amendment claim, that claim is subsumed into his Fifth Amendment Due Process claim, as the
gravamen of Zielinski’s Sixth Amendment claim is that he was denied counsel because he was
denied a hearing at which he would have had the right to counsel. Accordingly, he does not
separately state a Sixth Amendment claim.
8
Zielinski brings his Fifth Amendment claims pursuant to Bivens v. Six Unknown Named
Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), 5 in which the Supreme Court
“recognized for the first time an implied private action for damages against federal officers
alleged to have violated a citizen’s constitutional rights.” Corr. Servs. Corp. v. Malesko, 534
U.S. 61, 66 (2001). Bivens involved “a victim of a Fourth Amendment violation by federal
officers,” permitting him to bring a suit for money damages against the offending officers. Id.;
see also Carlson v. Green, 446 U.S 14, 18 (1980) (noting that in Bivens, the Supreme Court
“established that the victims of a constitutional violation by a federal agent have a right to
recover damages against the official in federal court despite the absence of any statute conferring
such a right”). Since the doctrine’s inception, the Supreme Court has “been reluctant . . . to
‘extend’ Bivens liability further,” only doing so twice: “in the contexts of ‘an implied damages
remedy [1] under the Due Process Clause of the Fifth Amendment’ in Davis v. Passman, 442
U.S. 228 (1979), and [2] under ‘the Cruel and Unusual Punishments Clause of the Eighth
Amendment’ in [Carlson].” Arar v. Ashcroft, 585 F.3d 559, 596 (2d Cir. 2009) (Sack, J.,
dissenting) (citations omitted). In light of Davis, the Second Circuit has held that “[a]
deprivation of procedural due process rights can give rise to a Bivens claim . . . .” Id. (same)
(citing Tellier v. Fields, 280 F.3d 69, 80-83 (2d Cir. 2000) (holding that prisoner legitimately
raised a procedural due process claim under the Fifth Amendment pursuant to Bivens when he
alleged that he was confined in administrative segregation for 514 days without a proper hearing
as required by regulations)); see also Espinoza v. Zenk, No. 10 Civ. 427, 2013 WL 1232208, at
5
To the extent that Zielinski asserts his claims for monetary relief against the officers in their
official capacities, these claims are in essence against the State, and thus barred by sovereign
immunity. See King v. Simpson, 189 F.3d 284, 287 (2d Cir. 1999). Accordingly, the Court
construes Zielinski’s damages claims against the officers as claims against Defendants in their
individual capacities.
9
*7 n.11 (E.D.N.Y. Mar. 27, 2013) (citing Tellier and noting that Bivens applies to Fifth
Amendment procedural due process claims); Maglietti v. Nicholson, 517 F. Supp. 2d 624, 632
(D. Conn. 2007) (“The Supreme Court has held in [Davis] that a private right of action exists for
claims under the Due Process clause of the Fifth Amendment. Therefore, Maglietti may assert
claims for violations of her due process and equal protection rights under the Fifth
Amendment[].” (footnote omitted)). Accordingly, Zielinski may assert his procedural due
process claim pursuant to Bivens.
The Due Process Clause of the Fifth Amendment mandates that “[n]o person shall be . . .
deprived of life, liberty, or property, without due process of law[.]” U.S. Const. amend. V.
Claims concerning deprivations without due process of law can take the form of substantive or
procedural claims. Where, as here, the gravamen of the allegation is that the deprivation
occurred without the proper process, the claim is, by its nature and terms, a procedural one. See
Gordon v. Nicoletti, 84 F. Supp. 2d 304, 308 (D. Conn. 2000) (“Procedural due process claims
concern the adequacy of the procedures provided by the governmental body for the protection of
liberty or property rights of an individual.”). In order to determine whether Zielinski has stated a
claim for procedural due process violations, the Court must look to “(1) whether [Zielinski] had a
protected liberty interest in not being confined . . . and, if so, (2) whether the deprivation of that
liberty interest occurred without due process of law.” Tellier, 280 F.3d at 80 (quotations and
citations omitted); accord Rosa R. v. Connelly, 889 F.2d 435, 438 (2d Cir. 1989) (“For appellants
to establish a procedural due process violation, they must: (1) identify a [liberty] right, (2)
establish that governmental action with respect to that [liberty] right amounted to a deprivation,
and (3) demonstrate that the deprivation occurred without due process.” (citation omitted)).
10
The Sentencing Reform Act of 1984, § 212(a)(2), 98 Stat. 1999, “eliminated most forms
of parole in favor of supervised release, a form of postconfinement monitoring overseen by the
sentencing court, rather than the Parole Commission.” Johnson v. United States, 529 U.S. 694,
696-97 (2000) (citation omitted). Supervised release is a form of punishment, imposed by the
court as an alternative to, or in addition to, incarceration. See 18 U.S.C. § 3583(a). Under this
statutory scheme, the court also has the power to modify or revoke a term of supervised release
in light of the factors set forth in 18 U.S.C. § 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4),
(a)(5), (a)(6), and (a)(7). See id. § 3583(e) (permitting the court to terminate, extend, or revoke a
term of supervised release). Before modifying the terms of supervised release, however, the
court must ordinarily hold a hearing, at which the supervisee has a right to counsel and “an
opportunity to make a statement and present any information in mitigation.” Fed. R. Crim. P.
32.1(c)(2)(A)-(C).
Here, prior to the Halloween Directive, Zielinski was subject to several special conditions
of supervised release, which included full financial disclosure; prohibition on incurring any new
debts; provision of DNA; and submission to computer equipment inspections. The Halloween
Directive modified these conditions, despite the fact that Zielinski’s original terms of supervised
release were unrelated to his status as a sex offender, and included no sex offender-specific
conditions. The Halloween Directive imposed new conditions of supervised release on Zielinski.
At the very least, the Halloween Directive restricted Zielinski’s movements in a manner
unrelated to, and not authorized by, the judge-imposed conditions of supervised release
originally mandated at his sentencing. Such a restriction implicates Zielinski’s liberty, as it
literally compelled him to remain inside his home. (See Compl., Ex. B (“You are instructed to
be inside your home, with the door locked by 6 pm, on Monday, October 31, 2011.”).) In
11
response, Defendants assert that the Halloween Directive fell under the umbrella term in
Zielinski’s original conditions that required Zielinski, like all supervisees, to “follow the
instructions of the probation officer.” (Id., at ¶ 22.) This assertion is untenable. The
requirement to “follow the instructions of the probation officer” does not provide a license for
the probation officer to impose new conditions. Rather, it can only permissibly refer to those
instructions that reasonably derive from judge-imposed conditions of supervised release. Cf.
U.S.S.G. § 5B1.3(b) (“The court may impose other conditions of probation . . . .”). It is
axiomatic that “making defendants’ liberty contingent on the discretion of the probation office
constitutes an impermissible delegation of judicial power.” United States v. Kieffer, 257 F.
App’x 378, 380-81 (2d Cir. 2007) (citation omitted); accord United States v. Peterson, 248 F.3d
79, 84-85 (2d Cir. 2001) (holding that while “the District Court had adequate justification for
prescribing mandatory therapy,” in light of Defendant’s history as a sex offender, “the special
condition, as written, was an excessive delegation to the probation officer,” as it allowed the
USPO to ambiguously “direct” Defendant’s enrollment, attendance, and participation in mental
health intervention); see also Farrell v. Burke, 449 F.3d 470, 488 (2d Cir. 2006) (rejecting the
government’s position that the discretion of a probation officer to review items in supervisee’s
possession in order to determine whether or not they constituted pornography cured the
vagueness of a condition that prohibited pornography, noting that the delegation “creates ‘a real
danger that the prohibition on pornography may ultimately translate to a prohibition on whatever
the officer personally finds titillating.’” (quoting United States v. Guagliardo, 278 F.3d 868, 872
(9th Cir. 2002) (citation and quotations omitted)). If excessive delegation to a probation officer
can constitute an impermissible abdication of the court’s role in imposing punishment, a fortiori,
the wholesale designation of conditions of supervised release by the USPO without any guidance
12
from a court is improper. Zielinski’s liberty was restricted in a way that avoided legal process,
as it occurred outside the bounds of the requisite statutory structure for supervised release and
modifications thereof.
Because additional terms of supervised release were imposed upon Zielinski in what was
an impermissible discretionary act on the part of the defendant probation officers, without the
proper procedure of a modification hearing, and because those terms restricted his liberty in a
cognizable manner, Zielinski has alleged the elements of a procedural due process violation.
B.
Fourth Amendment Claim
Zielinski also brings a Fourth Amendment claim, alleging that he was effectively seized,
because he was forced to remain in his home on the evening of October 31, 2011. As Bivens
itself involved a Fourth Amendment claim, Zielinski may permissibly assert such a claim. See,
e.g., United States v. Acosta, 502 F.3d 54, 60 (2d Cir. 2007) (“One would think that the facts
underlying an alleged violation of § 3109 would form the basis for attacking the propriety of the
search as also violative of the Fourth Amendment. If such is the case, a cause of action for
damages may lie against the federal officer under [Bivens].” (citations omitted)); Diaz-Bernal v.
Myers, 758 F. Supp. 2d 106, 127-28 (D. Conn. 2010) (“The defendants do not argue that Fourth
Amendment harms cannot be remedied by Bivens, since Bivens itself squarely allowed remedies
for Fourth Amendment violations. Instead, they argue that review of any constitutional harm in
the immigration context is inappropriate under Bivens.”).
The Fourth Amendment safeguards “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const.
amend. IV. A “seizure,” within the meaning of the Fourth Amendment, occurs where “in view
of all of the circumstances surrounding the incident, a reasonable person would have believed
13
that he was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554 (1980) (Stewart,
J., plurality) (footnote omitted); accord Kia P. v. McIntyre, 235 F.3d 749, 762 (2d Cir. 2000).
Even when an individual is seized by state or federal actors, the seizure may nevertheless fail to
give rise to a Fourth Amendment violation if reasonable. In determining the reasonableness of a
given seizure, courts apply different tests based on the variant of seizure at issue. For example,
in order to engage in an investigative detention, or Terry stop, officers must possess reasonable
suspicion; however, “[a]s the level of intrusiveness rises, [and] an encounter between the police
and a citizen is more properly categorized as an arrest—the second category of seizures of the
person,” the seizure must be “supported by probable cause.” Posr v. Doherty, 944 F.2d 91, 98
(2d Cir. 1991) (quotations and citations omitted). As an exception to these strictures, “it is core
Fourth Amendment doctrine that a seizure without consent or a warrant is a ‘reasonable’ seizure
if it is justified by ‘exigent circumstances.’” Tenenbaum v. Williams, 193 F.3d 581, 604 (2d Cir.
1999) (citations omitted). The rationale behind this “exigent circumstances” exception “as it
pertains to law enforcement officials is ‘[t]he need to protect or preserve life or avoid serious
injury.’” Id. at 605 (quoting Mincey v. Arizona, 437 U.S. 385, 392 (1978)). The Second Circuit
has also recognized that, in some contexts, “special needs” might render the probable-cause
analysis “impracticable,” meaning some other discussion of reasonableness will sometimes be
required to determine the permissibility of a given seizure. Id. at 603 (“Although all agencies of
government are governed by the unreasonable searches and seizures provision of the Fourth
Amendment, there are some agencies outside the realm of criminal law enforcement where
government officials have ‘special needs beyond the normal need for law enforcement [that]
make the warrant and probable-cause requirement impracticable.’” (quoting O’Connor v.
Ortega, 480 U.S. 709, 720 (1987) (plurality opinion)). Notably, the Supreme Court has defined
14
the probation system as one such “special need.” See Griffin v. Wisconsin, 483 U.S. 868, 873-74
(1987) (“A State’s operation of a probation system, like its operation of a school, government
office or prison, or its supervision of a regulated industry, likewise presents ‘special needs’
beyond normal law enforcement that may justify departures from the usual warrant and
probable-cause requirements.”); see also United States v. Reyes, 283 F.3d 446, 461 (2d Cir.
2002) (“[The Griffin special needs] principles apply a fortiori to federal supervised release,
which . . . is ‘meted out in addition to, not in lieu of, incarceration.’” (quoting United States v.
Cardona, 903 F.2d 60, 63 (1st Cir. 1990)).
Here, Zielinski was seized within the meaning of the Fourth Amendment. He was
directed, by the USPO, to remain in his home for a certain amount of time and ordered not to
participate in Halloween activities, prohibited even from answering the door. In a meaningful
sense, Zielinski’s movements and activities were restricted, and he was not permitted to leave his
home during a certain time period. As a supervisee, under standard conditions of probation,
Zielinski was well aware of the consequences of disobeying even an illegitimate order from a
USPO—consequences that could have resulted in an immediate modification or revocation of his
probation under the applicable statutory scheme. See, e.g., 18 U.S.C. § 3583(e)(2)-(3). The
reasonableness question, however, is more difficult, as Zielinski’s seizure is clearly neither an
arrest nor an investigative Terry stop. Accordingly, the USPO’s authority to seize Zielinski in
this manner, which did not derive from court-imposed conditions of supervised release, would
have to have stemmed from either the so-called “exigent circumstances” exception, see
Southerland v. City of New York, 680 F.3d 127, 157-58 (2d Cir. 2011) (discussing the exigent
circumstances exception in the context of child-removal by the state in cases of suspected child
abuse or neglect), or the “special needs” exception as applicable to the probation system, see
15
United States v. Lifshitz, 369 F.3d 173, 178 (2d Cir. 2004) (“In most cases, reasonableness
requires a warrant and probable cause. The Supreme Court has, however, demarcated certain
areas in which a lesser-or even nonexistent-level of individualized suspicion is sufficient to
render a search constitutional. The two such intersecting spheres of principal relevance to this
appeal are those of probationary and (other) ‘special needs’ searches.” (internal citation
omitted)).
First, when determining whether exigent circumstances allow for warrantless (or
suspicion-less) search or seizure, courts examine the existence of an “‘urgent need’ to render aid
or take action.” See United States v. MacDonald, 916 F.2d 766, 769 (2d Cir. 1990) (discussing
whether exigent circumstances justified warrantless entry (citations omitted)). Here, there has
been no showing of exigent circumstances warranting Zielinski’s seizure. True, Zielinski is a
registered sex offender, but his status as such, without more, does not justify the probation
officers’ discretionary seizure in light of their own perceived dangers associated with Halloween.
Moreover, while Halloween does invite contact between minors and the adults whose homes
they visit in pursuit of candy, at the time the Directive was issued, Zielinski was free, by the
terms of his supervised release, to interact with minors. Defendants cite the gravity of
Zielinski’s sex crimes as justification for the Halloween Directive. (See Def.’s Mem. at 25.)
While it is true that Zielinski’s crimes are indeed deplorable (see, e.g., Blain Decl., Ex. E), that
fact does not establish the “urgent need” associated with exigent circumstances.
Second, as for the “special needs” exception, its particular application in the probation
context derives from the need for supervision, on the part of the UPSO, “‘to assure that [courtimposed] restrictions are in fact observed.’” Lifshitz, 369 F.3d at 178 (quoting Griffin, 483 U.S.
at 875). And while prevention of “probationers’ future violations of the law” is another interest
16
served by the probation system, it is the monitoring of probationers’ compliance with conditions
of their supervised release that constitutes the “special need” that surpasses that of “normal law
enforcement,” whereas the prevention of future violations is “continuous with other law
enforcement interests.” Id. at 179 (quotations and citation omitted). Defendants are correct that
supervisees can be constitutionally subject to “a degree of impingement upon privacy that would
not be constitutional if applied to the public at large.” Griffin, 483 U.S. at 875. Nevertheless, a
seizure of a supervisee’s person, based on factors unrelated to any court-imposed condition of
supervised release, without more, does not establish a special need. There was no suspicion here
that justified the restriction of Zielinski’s Halloween movement other than his status as a
registered sex offender. But see United States v. Townsend, 371 Fed. App’x 122, 125 (2d Cir.
2010) (holding that a warrantless search of parolee was justified by the “special needs” exception
when parole officer had “received specific information from law enforcement officials working
on an ongoing investigation that suggested contraband might be found in [parolee’s] home,” and
thus finding that “the search did not violate [parolee’s] Fourth Amendment rights, and his
suppression motion was properly denied”). It is true that the ordinary “requirements of the
Fourth Amendment, which apply to a regular law enforcement officer executing a search warrant
for an individual’s home, simply do not apply to visits by probation officers to the homes of
convicted persons serving a term of supervised release.” Reyes, 283 F.3d at 462 (citation
omitted). However, these limitations on a supervisee’s constitutional rights must derive from
court-imposed conditions, and may not stem from the USPO’s independent, however wellintentioned, determination—without any evidence other than a supervisee’s status—that an
arbitrary seizure is warranted. Cf. Lifshitz, 369 F.3d at 181 (“In the case of a probationer, the
imposition of a search condition as part of probation creates a diminished expectation of
17
privacy.” (emphasis added) (citation omitted); see also United States v. Washington, No. 12 Cr.
146 (JPO), 2012 WL 5438909, at *5 (S.D.N.Y. Nov. 7, 2012) (noting that “courts have
concluded that consent to a special condition of supervised release that authorizes warrantless
searches modifies the Fourth Amendment analysis, such that courts need ask only whether ‘the
conduct of the parole officer was rationally and reasonably related to the performance of the
parole officer’s duty’” and accordingly denying Defendant’s motion to suppress (quoting United
States v. Newton, 369 F.3d 659, 664-65 (2d Cir. 2004) (citation omitted)).
Due to the seriousness of the sexual offenses involved, the United States Attorney for the
Northern District of New York, in conformity with proper procedure, eventually sought a
modification hearing. Id. At that hearing, Judge McAvoy, in light of Zielinski’s crimes,
imposed sex offender-specific conditions, and the imposition of those conditions was later
affirmed by the Second Circuit. This procedure, which reflects the proper manner in which to
limit Zielinski’s Fourth Amendment rights, lies in contrast to the curtailment of his rights by the
Halloween Directive. It is indeed true, as Defendants note, that supervisees’ constitutional rights
are limited by the terms of their probation. But these rights are properly restricted only insofar as
a court, in the exercise of its legitimate authority, imposes limitations on those rights. An
individual’s status as a supervisee cannot simply render his constitutional rights a nullity,
especially within an area where the sentencing court has not spoken.
C.
First Amendment Claim
Zielinski also asserts various violations of his expressive and associational rights, as
protected by the First Amendment. With respect to Plaintiff’s First Amendment claims for
damages, Defendants move to dismiss on the ground that a Bivens remedy has never been
applied in this particular context. Plaintiff, however, asserts that the extension of a Bivens
18
remedy to this context is appropriate, as there can “never be an ‘alternative, existing process’ for
protecting against unlawful prior restraints, because when they are imposed as they were here,
the damage is immediate and cannot be undone.” (Pl.’s Opp. at 9.) Assuming the viability of
Plaintiff’s First Amendment interest in expressing himself through his Halloween decorations,
this claim nevertheless must be dismissed, as the Court declines to extend Bivens to Plaintiff’s
First Amendment claim.
To date, neither the Supreme Court nor the Second Circuit has recognized a Bivens action
for alleged violations of a plaintiff’s First Amendment rights. See Iqbal, 556 U.S. at 675 (“For
while we have allowed a Bivens action to redress a violation of the equal protection component
of the Due Process Clause of the Fifth Amendment, we have not found an implied damages
remedy under the Free Exercise Clause. Indeed, we have declined to extend Bivens to a claim
sounding in the First Amendment. Petitioners do not press this argument, however, so we
assume, without deciding, that respondent’s First Amendment claim is actionable under Bivens.”
(internal citations omitted)); Hudson Valley Black Press v. I.R.S., 409 F.3d 106, 113 (2d Cir.
2005) (“Today we join our sister circuits and hold that Bivens relief is not available to taxpayers
who allege First Amendment violations based on retaliatory tax audits.”). In determining
whether to extend Bivens to a new context—meaning a context in which the court has not
previously recognized a Bivens claim—courts must engage in a two-part inquiry: first, courts
must consider “whether there is an alternative remedial scheme available to the plaintiff,” Arar,
585 F.3d at 572, and second, if not, whether nevertheless “special factors counsel[ ] hesitation.”
Wilkie v. Robbins, 551 U.S. 537, 550 (2007) (quotations and citation omitted)).
With respect to the first Wilkie factor, in examining the appropriateness of extending a
Bivens remedy to a claim that is potentially governed by an existing statutory apparatus, the
19
Second Circuit affords great weight to “the overall comprehensiveness of the statutory scheme at
issue,” rather than solely looking to “the adequacy of the particular remedies” provided. Hudson
Valley, 409 F.3d at 110. Here, Congress, together with the Sentencing Commission, has
provided a comprehensive scheme of federal supervised release. See, e.g., 18 U.S.C. § 3583;
Fed. R. Crim. P. 32.1. Admittedly, this statutory apparatus does not explicitly allow for the
remedy that Zielinski sought here—modification of a condition impermissibly imposed by a
probation officer—because supervisees may not, in fact, challenge the legality of a given
condition at a modification hearing. See Myers, 426 F.3d at 123 (“The government argues that,
given Myers’s current incarceration and uncertain future family circumstances, nothing would
preclude Myers from moving to modify the condition under 18 U.S.C. § 3583(e)(2). As the
government appeared to concede at oral argument, however, Myers would be unable to challenge
the constitutionality of the condition under that provision.” (citing United States v. Lussier, 104
F.3d 32, 34-35 (2d Cir. 1997) (“The plain language of subsection 3583(e)(2) indicates that the
illegality of a condition of supervised release is not a proper ground for modification under this
provision” and “does not authorize the court to assess the lawfulness of a condition of release”
(footnotes omitted)))). In fact, “[c]onspicuously absent from the list of relevant considerations
[courts examine when analyzing whether to modify a condition of supervised release] is the
legality of the condition.” Lussier, 104 F.3d at 32. However, there are other procedures,
namely, “a direct appeal under 18 U.S.C. § 3742 or a collateral attack under 28 U.S.C. § 2255,”
which are “available to challenge the legality of a condition of supervised release . . . .” Id.
Nevertheless, §§ 3742 and 2255 contemplate conditions as imposed by a court, rather than the
situation that Zielinski faced.
20
These facts, however, do not suggest that Zielinski was entirely without a remedy. First,
Zielinski could have filed a motion in the Northern District of New York—the court with
jurisdiction over his offense and probation, seeking relief from the court. In such a motion,
Zielinski could have raised the issue of his probation officers’ imposing a condition of
supervised release, without a hearing, which was unrelated to the conditions imposed by the
original sentencing court. And while this form of attempted relief is not perfectly tailored to the
alleged constitutional harm at hand, the remedies available to a claimant under the remedial
scheme in place need not be tantamount to a Bivens remedy in order for the first Wilkie factor to
remain satisfied. See Dotson v. Griesa, 398 F.3d 156, 166-67 (2d Cir. 2005) (“Chilicky made
clear that it is the overall comprehensiveness of the statutory scheme at issue, not the adequacy
of the particular remedies afforded, that counsels judicial caution in implying Bivens actions.
The Court emphasized that ‘[t]he absence of statutory relief for a constitutional violation’ is not
sufficient, by itself, for courts to imply a cause of action for money damages against the official
causing the violation.” (citing and quoting Schweiker v. Chilicky, 487 U.S. 420, 421-22 (1988));
see also Richard H. Fallon, Jr. & Daniel J. Meltzer, New Law, Non-Retroactivity, and
Constitutional Remedies, 104 Harv. L. Rev. 1731, 1778-79 (1991) (“Within our constitutional
tradition, we argue, the Marbury dictum reflects just one of two principles supporting remedies
for constitutional violations. Another principle, whose focus is more structural, demands a
system of constitutional remedies adequate to keep government generally within the bounds of
law. Both principles sometimes permit accommodation of competing interests, but in different
ways. The Marbury principle that calls for individually effective remediation can sometimes be
outweighed; the principle requiring an overall system of remedies that is effective in maintaining
21
a regime of lawful government is more unyielding in its own terms, but can tolerate the denial of
particular remedies, and sometimes of individual redress.”).
Second, even if the current scheme of federal supervised release is construed as one
absent even a general remedy for supervisees like Zielinski, certain considerations caution
against the creation of a new remedy for alleged First Amendment violations such as the one
here. The fact remains that supervisees’ constitutional rights, including their First Amendment
rights, are not coextensive with those of ordinary citizens. Loy, 237 F.3d at 259 (“As a convicted
felon sentenced to a term of supervised release, Loy’s constitutional rights do not have the same
scope as those of ordinary persons.” (citing United States v. Consuelo-Gonzalez, 521 F.2d 259,
265 & n.14 (9th Cir. 1975) (observing that “probationers, like parolees and prisoners, properly
are subject to limitations from which ordinary persons are free” and that “[m]erely because a
convicted individual’s fundamental rights are involved should not make a probation condition
. . . automatically suspect”)). And as such, district courts are free to impose discretionary
conditions of supervised release limiting those rights that are particularly tailored to the relevant
defendant and his specific crime. See 18 U.S.C. § 3583(d); U.S.S.G. § 5D1.3(b)-(d). While a
so-called “rogue agent” (Pl.’s Opp. at 8) may occasionally overstep the parameters of this
scheme and attempt to impose additional conditions, to hold that any supervisee in Zielinski’s
position has a remedy at law for the First Amendment harms imposed by such behavior would
upset the balance of a carefully constructed statutory scheme. Accordingly, even if the first
Wilkie factor were met, the Court declines to extend a Bivens remedy to federal supervisees who
object that the interpretation and enforcement of conditions by their probation officers adversely
affect their First Amendment rights.
22
D.
Qualified Immunity
As a defense to all of Plaintiff’s claims, Defendants raise qualified immunity, asserting
that it was objectively reasonable for the officers to “believe in the legality of their actions.”
(Def.’s Mem. at 19.) The Court disagrees, as Defendants characterize the reasonableness of their
actions using the wrong level of generality. In particular, Defendants’ position―that it was
reasonable, given Plaintiff’s status as a sex offender, for the probation officers to limit his
movement on Halloween―ignores the unreasonableness of imposing a condition independent of
a determination by the sentencing or modifying court.
1.
Clearly Established Law
Defendants first assert that Plaintiff’s First and Fourth Amendment rights were not
clearly established. (Def.’s Mem. at 23 n.8.) Regardless of the clarity in scope of Plaintiff’s
First Amendment right to celebrate Halloween and Fourth Amendment rights as a supervisee, it
is nevertheless clearly established that probation officers may not replace the Court as the
decisionmaking body that determines the conditions of supervised release.
In this district, a right is clearly established if it has been recognized by the Second
Circuit or the Supreme Court. Anderson v. Recore, 317 F.3d 194, 197 (2d Cir. 2003) (citing
Young v. Cty. of Fulton, 160 F.3d 899, 903 (2d Cir. 1998)). The Second Circuit, in Peterson,
held that while it was permissible for the lower court, in light of the supervisee’s offense, to
prescribe mandatory sex offender therapy, the condition, as written, constituted an impermissible
delegation of authority to the probation officer, as it allowed the probation officer to determine
whether the supervisee would attend therapy at all. See 248 F.3d at 85. The Peterson court
noted that mandatory therapy, whose details, “including the selection of a therapy provider and
schedule,” would be determined by the probation officer, constituted such an improper
23
delegation, because the “issue of the defendant’s participation in therapy” was left “to the
discretion of the probation officer.” Id. Thus, the Second Circuit has clearly held that, under the
statutory scheme, it is the court, not the USPO, that possesses the authority to determine whether
to impose a given condition of supervised release. See, e.g., Myers, 426 F.3d at 130 (“We note
that, although it would be proper for the district court to postpone determining whether a special
condition is necessary, the district court may not improperly delegate this determination to the
probation office.” (citing Peterson, 248 F.3d at 85 (emphasis in original)). “Fixing the terms
and conditions of probation is a judicial act which may not be delegated,” Whitehead v. United
States, 155 F.2d 460, 462 (6th Cir. 1946), and therefore certain delegations “from a court to a
probation officer would contravene Article III of the United States Constitution,” United States
v. Johnson, 48 F.3d 806, 808 (4th Cir. 1995).
In addition to the clarity of the distinction between the court’s role and the USPO’s role,
as associated with supervised release, the Federal Rules of Criminal Procedure are unambiguous
in their governance of the process by which a probationer’s conditions may be modified. As
discussed, Rule 32.1 states that “[b]efore modifying the conditions of probation or supervised
release, the court must hold a hearing, at which the person has the right to counsel and an
opportunity to make a statement and present any information in mitigation.” Fed. R. Cr. P.
32.1(c)(1). The only exceptions to this hearing requirement are when (1) the supervisee waives
the right to hearing; or (2) where the relief sought is favorable to the supervisee and the
government does not object to the favorable modification. Id. at 32.1(c)(2)(A)-(C). Similarly,
the statutory scheme governing supervised release provides that the court, not the USPO, may
terminate, extend, or revoke a term of supervised release. See 18 U.S.C. § 3583(e)(1)-(4).
24
Here, the probation officers’ Directive arguably went beyond even an impermissible
delegation, as there never was a pertinent substantive condition imposed by the court. Compare
United States v. Voelker, 489 F.3d 139, 143 (3d Cir. 2007) (holding that court-imposed condition
which prohibited defendant from associating with minors without the prior approval of the
Probation Officer impermissibly allowed the probation officer to become “the sole authority for
deciding if Voelker will ever have unsupervised contact with any minor, including his own
children, for the rest of his life,” constituting “unbridled delegation” previously rejected by the
Third Circuit (citing Loy, 237 F.3d at 266). Instead, here the situation involved the imposition of
a condition by the USPO, without any prior guidance from the court. Whatever Zielinski’s
crimes, and whatever the limitations on his First and Fourth Amendment rights given his status
as a probationer, it was clearly established at the time Defendants issued the Halloween Directive
that conditions of supervised release must be imposed by the court; and while the USPO may
“manage aspects of sentences and [] supervise probationers and persons on supervised release
with respect to all conditions imposed by the court,” Johnson, 48 F.3d at 808, they may not
generate conditions themselves. Indeed, while “a ministerial act or support service” may of
course be assigned to a probation officer, “‘the ultimate responsibility’ of imposing the sentence”
lies with the court and the court alone. United States v. Nash, 438 F.3d 1302, 1305-06 (11th Cir.
2006) (quoting United States v. Bernardine, 237 F.3d 1279, 1283 (11th Cir. 2001)). Here,
Defendants took it upon themselves to exercise this ultimate responsibility, altering Zielinski’s
conditions of supervised release without a modification hearing. Nor was there a court
determination of the 3553(a) factors prior to the modification effected by the Halloween
Directive, as required by 18 U.S.C. § 3583(e).
25
2.
Objective Reasonableness
Having determined that Defendants violated clearly established law by engaging in a
substantive modification of the terms of Zielinski’s supervised release without seeking a hearing
as required by Rule 32.1, the Court next turns to whether their actions were nevertheless
objectively reasonable. As discussed, even where officers violate clearly established law, so
long as they act in an objectively reasonable manner, they will remain shielded by the doctrine of
qualified immunity.
Officers act objectively reasonably when, in light of clearly established law and the
information they possessed at the applicable time, “officers of reasonable competence could
disagree on the legality of the defendant’s actions.” Lennon, 66 F.3d at 420 (quotations and
citation omitted). Conversely, “[a]n officer’s actions are objectively unreasonable when no
officer of reasonable competence could have made the same choice in similar circumstances.”
Id. at 420-21. It has been stated, by both the Supreme Court and the Second Circuit, that
“qualified immunity protects ‘all but the plainly incompetent or those who knowingly violate the
law.’” Walczyk v. Rio, 496 F.3d 139, 154 (2d Cir. 2007) (quoting Malley v. Briggs, 475 U.S.
335, 341 (1986)). Thus, even where clearly established law is violated, a court must scrutinize
the objective reasonableness of the relevant conduct in determining officers’ liability.
Accordingly, the question here is whether it was objectively reasonable for Defendants to impose
a condition of supervised release on Zielinski without first adhering to proper procedure and
seeking a modification hearing.
In support of their position that it was objectively reasonable to limit Plaintiff’s contact
with children on Halloween, Defendants cite two cases from this circuit in which courts found
defendant probation officers to be qualifiedly immune from liability after directing probationers
26
to sex offender mental health treatment. See Rose v. Goldman, No. 02 Civ. 5370, 2009 WL
4891810, at *7-8 (E.D.N.Y. Dec. 9, 2009), report and recommendation adopted, No. 02 Civ.
5370, 2011 WL 1130214 (E.D.N.Y. Mar. 24, 2011) (holding that it was objectively reasonable
for a defendant probation officer to direct plaintiff, who was sentenced to state probation based
on a guilty plea to a nonsexual offense, to undergo sex offender therapy); Henderson v. Heffler,
No. 07 Civ. 0487C, 2010 WL 2854456, at *1, *4-5 (W.D.N.Y. July 19, 2010) (holding that it
was objectively reasonable for the probation officer to direct supervisee to attend sex offender
therapy when the “Order of Probation provide[d] that, ‘[a]t the direction of the Probation
Officer,’ defendant was to ‘attend, actively participate and remain in sex offender treatment and
comply with all the rules and regulations of the program’”). While the Henderson court was
faced with qualified immunity analysis in light of a discretionary directive from the sentencing
court, the Rose court faced an issue closer to the one presented here: an imposition of a sex
offender specific-condition by a state probation officer, in the wake of a sentencing court’s
imposition of standard conditions, after conviction for a nonsexual offense. In its analysis, the
Rose court cited the probation officer’s “reliance on the presentence report to refer plaintiff to [a
treatment facility] for an evaluation to determine whether he was appropriate for [sex offender]
treatment” as objectively reasonable, especially in light of accusations that the supervisee was
permitting his children to watch pornography and smoke marijuana in the home. Id. at *8.
Importantly, and in distinction to this case, Rose’s original conditions of probation, as imposed
by the sentencing court, included an order for a mental health assessment, and later, mental
health assessment was listed as a special condition of Rose’s probation. Id. at *1. Here, in
contrast, the original, standard conditions of supervised release failed to direct Zielinski to
27
undergo any form of mental health treatment, sex offender-specific or otherwise, as directed by
his probation officers or otherwise.
Defendants further contend that the following facts underscore the reasonableness of
Defendants’ belief “that limiting Plaintiff’s interaction with children did not violate any
constitutional right Plaintiff might have had regarding holiday celebrations or temporary
modifications of his supervised release[:]” (1) Plaintiff committed sexual crimes against minors,
in violation of N.Y. Penal Law §§ 110.00/235.22, 215.56; (2) Plaintiff is a registered sex
offender with New York state; (3) at the time of the Halloween Directive’s issuance, Zielinski
was under an order of protection from New York Family Court, directing him to stay away from
his minor child; and (4) the NDNY PO had access to information detailing Zielinski’s crimes,
which revealed he was a sexual sadist, that he was engaged in the production of child
pornography, and that he was “likely to repeat his sexual crimes against minors.” (Def.’s Mem.
at 24-25.) According to Defendants, these facts, taken together, underscored the overarching
reasonableness of the “narrowly tailored” Halloween Directive, which was designed, quite
reasonably, “to minimize [Zielinski’s] opportunity to interact with, and therefore temptation to
commit criminal acts with, minors.” (Id. at 25.) Defendants bolster their argument by noting
that the Halloween Directive’s restrictions were, in fact, “in keeping with the conditions later
imposed by the district court,” which, they contend, emphasizes their reasonableness.
While the Court does not disagree that a supervisee’s status as a Level 2 registered sex
offender and child pornographer makes sex offender-specific conditions of supervised release
reasonable, it does not follow that the imposition of such conditions by the probation officers,
without approval by the court, reflects the same degree of reasonableness. Had Zielinski been
subject to sex offender-specific conditions from the advent of his federal supervised release,
28
some oversteps on the part of Defendants in the administrative effectuation of those conditions
would be a strong candidate for qualified immunity. However, the situation here is different.
Defendants, in fact, attempted to persuade Zielinski to waive his right to a hearing before
modifying his conditions, and, when he refused, they imposed the Halloween Directive
regardless. Title 18 U.S.C. § 3583 requires a court, before modifying a term of supervised
release, to examine the factors set forth in § 3553 (a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4),
(a)(5), (a)(6), and (a)(7). Moreover, as discussed, a supervisee has a right to speak at his hearing
and right to counsel, before his terms are modified in an unfavorable way. See generally Fed. R.
Cr. P. 32.1. Here, Defendants supplanted the role of the court without regard to Zielinski’s
constitutional rights. And the fact that a supervisee’s constitutional rights are more limited than
those of a normal citizen does not make Defendants’ determination here any more reasonable,
because a supervisee’s rights may not be limited at the whim of the USPO, but rather, are
cabined by a court’s statutory determination. Moreover, the fact that Defendants originally
attempted to convince Zielinski to comply with sex offender-specific conditions, waiving his
hearing rights, and then later, together with the U.S. Attorney, successfully sought a modification
through proper channels, suggests that they were aware of the relevant law and its strictures, but
chose to ignore it.
The Court concludes that no reasonable probation officer could think it appropriate to
impose a condition on a supervisee entirely independent of a judicial determination.
Accordingly, qualified immunity does not support dismissal at this stage.
IV.
Claims for Equitable Relief
In addition to his Bivens claims, Plaintiff seeks injunctive relief prohibiting Defendants
from: (1) “issuing any further ‘instructions’ unless they are to implement other more specific
29
conditions of release imposed by the sentencing court;” and (2) “enforc[ing] [] the Halloween
letter or any substantially similar restrictions against the plaintiff or any other person under their
supervision, [or against persons not under their supervision], absent prior judicial authorization
or such person’s consent[.]” Zielinski also seeks: an order removing DeFreest from her position
as a probation officer (Compl. at ¶¶ C-E, H), as well as a declaration that (1) the Officers
violated his constitutional rights; (2) probation officers may only “issue instructions that
implement, and that are consistent with, other more specific conditions of supervised release;”
and (3) “violation of the constitutionally-protected rights of a person under their supervision is
sufficient cause to remove a probation officer from their position . . . ‘for cause’” (id. at ¶¶ A, B,
G.)
Defendants move to dismiss Plaintiff’s claims for equitable relief on the grounds that
subject matter jurisdiction and standing are lacking.
To the extent that Zielinski seeks injunctive and declaratory relief against Defendants in
their individual capacities, his claims must fail, as the true party in interest is the United States
government, rather than the officers themselves. Cf. Connecticut v. Cahill, 217 F.3d 93, 106 (2d
Cir. 2000) (“In determining who is the real party in interest, the ‘general rule’ is that relief
sought nominally against an officer is in fact against the sovereign if ‘the effect of the judgment
would be to restrain the Government from acting, or to compel it to act.’” (quoting Pennhurst
State School & Hosp. v. Halderman, 465 U.S. 89, 101 n.11 (1984) (citations omitted)). Put
another way, any suit against the officers for injunctive relief must be one against them in their
official, rather than individual, capacities.
Individuals’ right to seek injunctive and declaratory relief against state or federal officers
in their official capacities for alleged constitutional violations is well established. See Larsen v.
30
Domestic & Foreign Commerce Corp., 337 U.S. 682, 704 (1949) (“Under our constitutional
system, certain rights are protected against governmental action and, if such rights are infringed
by the actions of officers of the Government, it is proper that the courts have the power to grant
relief against those actions.”); see also Ex Parte Young, 209 U.S. 123, 159 (1908). Even where
equitable relief is properly sought, however, a plaintiff must nevertheless comply with Article
III’s standing requirements. Fort Worth Employees’ Retirement Fund v. J.P. Morgan Chase &
Co., 862 F. Supp. 2d 322, 330 (S.D.N.Y. 2012) (“In order to bring a suit in federal court, a
plaintiff must demonstrate that he or she possesses standing to bring that suit.”). Accordingly,
“the irreducible constitutional minimum of standing contains three elements[:]” (1) “the plaintiff
must have suffered an ‘injury in fact’―an invasion of a legally protected interest”; (2) “there
must be a causal connection between the injury and the conduct complained of,” meaning “the
injury has to be fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e]
result [of] the independent action of some third party not before the court”; and (3) the injury
must be likely “redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555,
560-61 (1992) (internal quotations and citations omitted) (alterations in original).
The injury in fact must reflect a “concrete and particularized” harm, which is “actual or
imminent,” rather than “conjectural or hypothetical.” Id. at 560, 565. A “particularized” injury
is one that “affect[s] the plaintiff in a personal and individual way.” Id. at 560 n.1. Additionally,
the redressability of the challenged action through a favorable court decision “must be ‘likely,’
as opposed to merely ‘speculative.’” Id. at 561 (quoting Simon v. Eastern Ky. Welfare Rights
Organization, 426 U.S. 26, 38, 43 (1976)). These requirements derive “from the constitutional
provision of jurisdiction to federal courts to hear ‘cases’ or ‘controversies.’” Fort Worth, 862 F.
Supp. 2d at 331 (quoting U.S. Const. Art. III, § 2); accord Allen v. Wright, 468 U.S. 737, 750-51
31
(1984). While a party may seek injunctive relief and still satisfy Article III’s standing
requirements, notably, “[p]ast exposure to illegal conduct does not in itself show a present case
or controversy regarding injunctive relief, however, if unaccompanied by any continuing, present
adverse effects.” O’Shea v. Littleton, 414 U.S. 488, 495-96 (1974). Admittedly, “past wrongs
are evidence bearing on whether there is a real and immediate threat of repeated injury.” Id. at
496. But the “perceived threat” from which a plaintiff seeks injunctive or declaratory relief must
be “sufficiently real and immediate to show an existing controversy.” Id. Put another way, in
order to show more than abstract injury, a “plaintiff must show that he ‘has sustained or is
immediately in danger of sustaining some direct injury’ as the result of the challenged official.”
City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983) (citations omitted).
Here, given that his term of supervised release ended in January 2013, and he now has no
official contact with the USPO, Plaintiff’s desired injunctive relief reflects “only a fear of [future
probation restrictions], which is plainly insufficient to establish standing.” Amnesty Int’l. USA v.
Clapper, 667 F.3d 163, 179 (2d Cir. 2011) (Raggi, J., dissenting from denial of rehearing)
(citations omitted). The Supreme Court, together with courts in this circuit, have repeatedly
underscored that in the context of injunctive relief: “It is the reality of the threat of repeated
injury that is relevant to the standing inquiry, not the plaintiff’s subjective apprehensions.”
Lyons, 461 U.S. at 107 n.8; accord Shain v. Ellison, 356 F.3d 211, 216 (2d Cir. 2004) (“Under
Lyons, to establish a sufficient likelihood of a future unconstitutional strip search, Shain would
have to show that if he is arrested in Nassau County and if the arrest is for a misdemeanor and if
he is not released on bail and if he is remanded to NCCC and if there is no particularized
reasonable suspicion that he is concealing contraband, he will again be strip searched. Such an
accumulation of inferences is simply too speculative and conjectural to supply a predicate for
32
prospective injunctive relief.” (citation omitted)). Accordingly, “a plaintiff must demonstrate a
‘certainly impending’ future injury.” Marcavage v. City of New York, 689 F.3d 98, 103 (2d Cir.
2012) (quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990)). It is axiomatic that “[i]n
establishing a certainly impending future injury, a plaintiff cannot rely solely on past injuries;
rather, the plaintiff must establish how he or she will be injured prospectively and that the injury
would be prevented by the equitable relief sought.” Id. (citations omitted).
Here, Zielinski alleges that Defendants, in the future, will restrict his speech and
associational activities by preventing him again from decorating his family home in Halloween
fashion. (See Plaintiff’s Memorandum of Law in Opposition, Dkt. No. 24 (“Pl.’s Opp.”), at 22
(“[Defendants’] arguments ignore the fact that [Defendants] are going to enforce the same letter
again, and that even with the modified condition, most of the letter would have been
unconstitutional.”).) This contention, however, ignores the realities of the claimed injury, the
likelihood of future harm, and Zielinski’s current condition. For example, at the modification
hearing before Judge McAvoy, the conditions of Zielinski’s supervised release were modified to
reflect the substance of the content of the Halloween Directive. As noted, Judge McAvoy
modified Zielinski’s conditions to, inter alia: (1) prohibit direct or indirect contact with minors,
excepting Zielinski’s own child; (2) mandate avoidance of any area where minors are likely to
congregate; and (3) require sex offender registration. (Blain Decl., at Ex. G.) And despite
Zielinski’s appeal of the validity of these conditions (Compl. at ¶ 15 n.1), the Second Circuit,
upon review, held that Zielinski’s sex offense justified the imposition of sex offender conditions
of supervised release. See Zielinski, 2013 WL 536095, at *3. Accordingly, Zielinski cannot
obtain redress by a declaration from this Court that the USPO exceeded its powers, or by a
removal of DeFreest.
33
Alternatively, according to Zielinski, Judge McAvoy’s conditions are in fact far afield of
those outlined in the Halloween Directive, as the latter included further restrictions on
decorations and candy, in addition to the standard language concerning contact with minors.
Even assuming that the Directive was (1) unconstitutional and (2) broader than Judge McAvoy’s
imposed conditions, in the Lyons sense, Zielinski has failed to convincingly aver that there is “a
sufficient likelihood that he will again be wronged in a similar way . . . .” Lyons, 461 U.S. at
111. Zielinski simply claims that Defendants will again attempt to prevent him from celebrating
Halloween. This argument is akin to one that Lyons would be subject to an unconstitutional
chokehold again at some unspecified time in the future. Here, Zielinski pledges that he plans to
decorate his home for Halloween, and states that he will again be restricted from doing so when
Defendants inevitably issue another Halloween Directive; this future injury is too speculative to
pass muster under Lyons, especially in light of the fact that the driving impetus behind the
Directive—namely, the prevention of Zielinski’s contact with minors—has now been
implemented by a separate proceeding: the modification hearing before Judge McAvoy. Again,
it is well established that “[p]ast exposure to illegal conduct does not in itself show a present case
or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present
adverse effects.” O’Shea, 414 U.S. at 495-96. Here, there are no present, adverse effects
associated with the Halloween Directive, as presumably, Zielinski would not wish to decorate his
home for Halloween in early September. See Deshawn E. by Charlotte E. v. Safir, 156 F.3d 340,
344 (2d Cir. 1998) (“A plaintiff seeking injunctive or declaratory relief cannot rely on past injury
to satisfy the injury requirement but must show a likelihood that he or she will be injured in the
future.”). Additionally, the aspects of the Directive pertaining to contact with minors were
covered in full by Judge McAvoy’s findings during the February modification hearing, meaning
34
that any present restriction on Zielinski’s current life derives from the modification hearing,
rather than the Halloween Directive. In sum, Zielinski’s claims for equitable relief are associated
with a past harm, and fail to reflect any “real and immediate” threat of injury. Shain, 356 F.3d at
215 (quotations and citations omitted).
V.
Conclusion
For the foregoing reasons, Defendants’ motion to dismiss is GRANTED in part and
DENIED in part. Plaintiff’s First and Sixth Amendment claims are DISMISSED, as are his
claims for declaratory and injunctive relief. However, with respect to Plaintiff’s Fourth and Fifth
Amendment Bivens claims, Defendants’ motion is DENIED.
The Clerk of Court is directed to close the motion at docket entry number 27.
SO ORDERED.
Dated: New York, New York
September 10, 2013
35
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?