ABC v. DEF
Filing
146
OPINION & ORDER: For the foregoing reasons, the motions to dismiss are granted as to Rennie Rodriguez and Rebecca Rodriguez, and denied as to all other defendants. The Clerk of Court is respectfully directed to terminate Rennie Rodriguez and Reb ecca Rodriguez as defendants in this case, and to terminate the motions pending at docket numbers 112, 116, 119, and 141. An order as to next steps in this case will issue shortly. (As further set forth in this Order) Rebecca Rodriguez and Rennie Ronriguez terminated. (Signed by Judge Paul A. Engelmayer on 7/15/2015) (kl)
USDC SDNY
DOCUMENT
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEV/ YORK
ELECTRONICALLY FILED
X
DOC
DATE FILED:
1lt6l26l9
JOHN DOE and JANE DOE, Individually and on behalf
of M.S. an Infant, as Next Friends,
Plaintifß,
14
Civ.29s3 (PAE)
-vOPINION & ORDER
ANTHONY ANNUCCI, Acting Commissioner of the
New York State Department of Conections and
Community Supervision; JOSEPH LIMA, Bureau Chief
of the Manhattan VI Area Offrce of the New York State
Division of Parole; Parole Offrcer EMILY SCOTT;
Parole Officer SIMON VALERIO; Parole Officer
REBECCA RODRIGUEZ; P arole Officer RENNIE
RODRIGUEZ; Senior Parole Offrcer RICHARD
ROSADO; and Senior Parole Officer JAMES
CAPPIELLO,
Defendants.
PAUL A. ENGELMAYER, District Judge:
Plaintiff John Doe was convicted of sexual offenses against a teenage girl and served
more than eight years in prison. After Doe was released on parole, Doe's wife, Jane Doe, gave
birth to a son, M.S. In the years that followed, the Department of Corrections and Community
Supervision ("DOCCS") applied one of Doe's special parole conditions to bar him, during two
distinct time periods, from having any contact with his infant son. These periods totaled more
than one year.
John Doe, Jane Doe, and M.S. bring suit against eight state personnel associated
with
DOCCS, claiming that DOCCS's actions violated their rights to substantive due process,
intimate association, and procedural due process, and that each individual defendant personally
participated in these actions. Seven of the eight defendants now move to dismiss, asserting
mootness, immunity, and failure to state a claim. For the following reasons, the motions to
dismiss are granted as to defendants Rebecca and Rennie Rodriguez for lack of personal
involvement in the alleged constitutional violations, but are denied as to all other defendants.
I.
Background
A.
Factual Backgroundl
John Doe, age 50, resides in the Bronx, New
York. FAC
llf
10,
22. He works for a
company that provides foliage for special events and film shoots. Id. n34.
In the early 2000s, Doe lived with his then-wife, Beverly Martin; their four children, who
are now between the ages
of 15 and 28;
and
Martin's niece, now 26.
[d.ffi22,24.
Doe was
accused of engaging in oral and vaginal sex with Martin's niece in 2002 and2003, when she was
13 and 14 yearc old. Id. 1124.
OnMay I 1,2005, a jury convicted Doe of one count of second-
degree rape, one count ofsecond-degree criminal sexual acts, and one count ofendangering the
welfare of a child.
Id.
Doe maintains his innocence; his conviction is still on appeal. Id.
On November 9, 2005, Doe and Martin divorced. Id.
n25. On September 22,2007,
while incarcerated, Doe married Jane Doe, a woman he had known for 25 years. Id.
On November 2,2011, after serving more than eight years in prison, Doe was released on
parole supervision.
ld.nn24,27. He will
be on parole until March
2,2016. Id. n28. Upon
release, Doe moved into an apartment with his wife, Jane Doe. See id. n37.
I These facts are drawn from the First Amended Complaint and the exhibits attached thereto.
Dkt. 100 ("FAC"). In resolving the motions to dismiss, the Court assumes all well-pled facts to
be true and draws all reasonable inferences in favor of the plaintiffs. See Koch v. Christie's Int'l
PLC,699 F.3d 141, 145 (2dCir.2012).
2
The conditions of Doe's parole include that he
"will
have no contact with any person
under the age of eighteen, without the written permission of the supervising parole offtcer." Id.
fl 29, Exs.
B-C. To obtain permission to have contact with his youngest daughter, L.S., who was
12 yearc old at the time of his release, Doe filed a petition in Bronx Family Court. Id. n31, Ex.
D. Martin, L.S.'s
mother, consented to this request.
Id.
On February 1,2012, the Bronx Family
Court granted Doe's petition and authorized unsupervised visitation with L.S. Id.
In September 2012, Jane Doe gave birth to a son, M.S. 1d. fl 36. Soon after, John Doe
successfully completed substance-abuse and sex-offender treatment programs at the New York
Center for Addiction Treatment Services ("NYCATS"), as required by DOCCS.
ld.ffi32-33.
His attendance rate in that program was 100%; the Assistant Director found that he presented a
low risk of recidivism; and, upon completion, he was invited to be
a peer
mentor.
Id.l\33,39.
Notwithstanding those facts, on October 4,2012, DOCCS Parole Officers Emily Scott,
Richard Rosado, and James Cappiello informed Doe that he was not permitted to reside with
minor children, was therefore required to move out of his family's apartment immediately, and
was not allowed to have any contact with his month-old son, M.S.,
until such visitation had been
approved by the family court and by Officer Scott. Id.fln37-38, Ex.
E. That day, Doe moved
into a homeless shelter. Id. n38.
On October 5,2012, Doe filed a petition for visitation with M.S. in Bronx Family Court.
Id. n40, Ex. F. Jane Doe consented to the petition. Id. However, on March 12,2013, the Bronx
Family Court dismissed Doe's petition without prejudice because "the conditions of [his parole]
indicate that he is not to live in the same home as a child under the age of 18." Id. n 4I, Ex. F.
On January 24,2013, Scott called Mary Osborne, Deputy Director of the Sex Offender
Management Unit, to discuss Doe's parole conditions. Id. n 44. Osborne recommended that
J
John and Jane Doe both be evaluated by NYCATS, and that Scott discuss the results with
Capiello and Bureau Chief Joseph Lima.
Id.
On January 29 and February 2,2013, a NYCATS
social worker met with Doe "to assess his suitability to return to the home of his
wife." Id. n 45,
Ex. G. The social worker recommended that Doe "be permitted to reside with his wife,"
explaining that "[c]ohabitation with a partner of the opposite sex" is'oconducive to the principles
of relapse prevention" because it is "a protective factor for those who commit sexual offenses"
and ensures that Doe has "someone who can offer support
if needed." Id.
On February 7,2013, based on the social worker's recommendation and on Doe's
o'extremely
low risk of reoffending," Scott notified Doe that he could return to his family's
apartment. Id.
I46.
While living there, Doe "was an active husband and father" and "complied
with all of his parole conditions."
[d.fl[4748.
In June and July 2013, Rosado instructed Scott to review Doe's case and confirm that he
was permitted to reside with his
family. Id.nn 5I-52. On August 6,2013, Lima, in a change of
course, instructed Rosado to ensure that Doe left his family's apartment. Id. n 53. On August
22,2013, Scott notified Doe that he was not authorized to reside with his son, M.S., who was
then 11 months old, and okould have to move back to a homeless shelter."
Id.I54.
On
September 5,2013, another officer informed Doe that he would be anested for a parole violation
if
he did not move out of his
homeless shelter that day.
family's apartment immediately. Id.fl 55. Doe returned to the
Id.
Doe was later permitted to move into a studio apartment. Id. n73
To enable the family to manage rent for two apartments, however, Jane Doe and M.S. moved
into a one-bedroom apartment with Jane Doe's mother. See id. nn73-74.
On October 2,2013, in response to a letter from an attorney representing Doe, Lima
commenced an investigation to address Doe's request to have contact with M.S.
4
Id.fll6l-62.
Pursuant to a Protocol that DOCCS adopted in August 2013,2 the agency had 45 days to
complete the investigation. Id. n 62, Ex.
H.
The officers involved in the investigation included
Lima, Rosado, Scott, Rennie Rodriguez, Rebecca Rodriguez, and Simon Valerio, who was
assigned to be Doe's primary parole ofÍicer in September 2013. See id. TT 56,
63-72. In support
of Doe's request to return to his family's apartment, Jane Doe "express[ed] her strong desire to
live with her husband" and told the officers that she
"fe[t]
completely safe with [Doe] residing
with their son." Id.172. Martin also provided both oral and written statements expressing no
objection to Doe's living with M.S., and L.S. told the officers that "she has never had a problem
with her father." Id. Further,
a
clinical evaluation based on extensive psychological testing
reported that Doe "did not make the criteria for pedophilia" and presented'oa low or very low
risk of sexual recidivism." Id. fl 75, Ex. J. The clinician therefore recommended that Doe be
allowed to reside with his wife and infant child. Id. n77. The sex-offense victim, however,
asked Officer Rebecca Rodriguez why Doe should
"live happy and comfortable when he took
something from [her] that [she] can't get back." Id. n72.
On February
2I,20I4, following
a lengthy and unexplained delay,
paragraph order denying Doe's request to have contact with
M.S.
Lima issued a one-
See id. TT 78-82, Exs.
L-M.
Noting that "[t]he victim's perspective is always important," the determination observed that
Doe's "crimes occurred within the family constellation" and stated that Doe
oowas
extremely
manipulative and engaged in behaviors that involved extensive grooming, intimidation and
coercion of the 13 year old victim." Id.n 82. Lima's determination also expressed doubt as to
whether Doe "has shown true progress in treatment" and concern about Doe's "daughter who is
2
IOCCS
created the Protocol during settlement negotiations in Doe v. Overfield,No. 08 Civ.
6294, a class-action lawsuit filed in the V/estern District of New York. Id. n 58. As explained at
page 30, infra, the plaintifß here were not members of that class.
5
the same age as the victim in the instant offense."
Id. Limatherefore concluded
that authorizing
any contact between Doe and M.S. would present "an umeasonable risk" and "would not be in
the best interest of the child." Id.nn 82-83.
On April 3,2014, Doe notified V/illiam Hogan, a Regional Director of DOCCS, of his
intention to appeal Lima's decision. Id.
I85.
Pursuant to the Protocol, Hogan scheduled a
parental case conference with John and Jane Doe for May 5,2014. Id. n 86.
On
April 25,2014, the Does filed the lawsuit now pending before this Court.
See
Dkt.
The Does also sought emergency relief, Dkt. 6-9; that application was the subject of a series
1.
of
hearings before this Court, and the Court expressed an interest in obtaining Hogan's decision
before ruling on the Does' application, see Dkt. 48, at 4-5.
On May 22,2014, Hogan issued an order reversing Lima's decision and "allow[ing]
[Doe] contact with [M.S.]." FAC tf 87, Ex. O. The order stated that it "may result in possible
reunification with his son in the marital household," but that Doe "is still subject to the original
condition of his release." Id. Ex. O. Further, Hogan stated that the "decision does not preclude
any future decision to bar [Doe's] contact with his son based on emerging issues, conditions or
circumstances which would indicate to a parole officer that he is likely to or has sexually
reoffended any child." Id.
In response to an email from Doe's counsel, Hogan later clarified that his decision did not
oonature
and type of contact" Doe could have with M.S. 1d. tf 88, Ex. P.
define the
On June 4,2014, Doe's parole officer modified his parole conditions to "allow[]
unrestricted contact" between Doe and his minor children, M.S. and L.S. Id. fl 89, Ex.
then, John Doe has resided with Jane Doe and M.S. without incident. 1d
6
Q.
Since
B.
Procedural History
On April 25,2014, plaintiffs commenced this case by filing a complaint, anonymously
and under seal, in this
District.
See
Dkt. 1-5. On May 2,2014, plaintiffs moved for a temporary
restraining order and preliminary injunction. Dkt. 6-9. That motion \^/as withdrawn after
DOCCS authorized contact between Doe and M.S. on
.}l/lay
22,2014, seeDkL45, and revised
Doe's parole conditions to allow unrestricted contact on June 4,2014, see Dkt. 52, 56-58.
On June 26 and August 15,2014, defendants Rosado and Scott each filed an answer to
the complaint. Dkt. 68,94. On July 2 and July 30, 2014, the remaining defendants filed motions
to dismiss. Dkt. 73, 82, 86.
On September
4,2\l4,plaintifß, with
leave of the Court, filed the FAC. Dkt. 100. The
FAC asserts three claims: violation of the Does' substantive due process rights, se¿ FAC
ITT
90-
97, freedom of association, see id.fln 98-104, and procedural due process, see id. f1[ 105-12. It
seeks
relief including
a declaration that the
oorestriction
on John Doe's contact with M.S. was
unconstitutional," a oopermanent injunction baning enforcement of the challenged parole
condition as applied to John Doe," monetary damages, and attorneys' fees and costs. Id. at30.
As defendants, the FAC names Anthony Annucci, the Acting Commissioner of DOCCS; Lima,
Bureau Chief of the Manhattan VI Area Office of the New York State Division of Parole; and
Parole Officers Cappiello, Rebecca Rodriguez, Rennie Rodriguez, Rosado, Scott, and Valerio.
Id.nn ß-21. Shortly thereafter, on September
8, 2014, plaintiffs voluntarily dismissed their
claims against Hogan, MilzaMercedes, Tina Stanford, and Terrence Tracy, who had been named
as defendants in the
original complaint.
See
Dkt. 104.
Of the eight defendants named in the FAC, seven moved to dismiss in four separate
motions, and one, Scott, filed an answer.
7
Specifically, on September 18, 2014, Annucci filed a motion to dismiss, Dkt. 1 12, and a
supporting memorandum of law, Dkt. 114 ("Annucci
moved to dismiss. Dkt. 116,124 ("Rosado
Br."). The
same day, Rosado separately
Br."). Also on September 18,201,4,Lima,
Rebecca
Rodriguez, Rennie Rodriguez, and Valerio (collectively, the "Limadefendants") jointly moved
todismiss. Dkt.
I19,l2l ("LimaBr."). Aroundthesametime,onSeptember26,2014,Scott
filed her answer. Dkt. 127. On October 2,2014, plaintiffs filed
a memorandum
of law in
opposition to the three motions to dismiss that had been filed on behalf of six defendants. Dkt.
130 ("Doe
Br."). On October 9,2014, Annucci
and the Lima defendants submitted their replies.
Dkt. 131 ("Annucci Reply Bt."), 133 ("Lima Reply Br.").
On December 23,2014, after receiving multiple extensions of time, Cappiello filed a
motion to dismiss, Dkt. 141, and a supporting memorandum of law, Dkt. 143 ("Cappiello Br.").
Finally, on January 20,2015, plaintiffs filed their opposition to Cappiello's motion. Dkt. 145.
II.
Applicable Legal Standards
To survive a motion to dismiss under Rule 12(b)(6), a complaint must plead'oenough
facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S.
544,570 (2007). A claim will only have "facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged." Ashcroft v. Iqbal,556 U.S. 662, 678 (2009). A complaint is properly
dismissed where, as a matter of law, "the allegations in a complaint, however true, could not
raise a claim of entitlement to
relief." Twombly,550 U.S. at 558. Although a district court must
accept as true all well-pled factual allegations in the complaint and draw all reasonable
inferences in the plaintifPs favor, SteginslE v. Xcelerq Inc.,74I F.3d 365, 368 (2d Cir.2014),
that tenet "is inapplicable to legal conclusions," Iqbal,556 U.S. at 678.
I
ilI.
Discussion
The four motions to dismiss assert a total of seven bases on which the moving defendants
argue that the Court should dismiss the FAC: (1) mootness, (2) absolute immunity, (3) qualified
immunity, (4) sovereign immunity,3 (5) preclusion, (6) abstention, and (7) failure to state a
claim. The Court addresses these claims in turn.
A.
Mootness
All moving
defendants argue that this case is moot because plaintiffs challenge a
restriction on Doe's contact with M.S. that is no longer in effect. Defendants acknowledge that
Doe was twice barred from living with his family or visiting his son: between October 4,2012
and February 7,2013, and again between September 5,2013 and May
more than one year.
^S¿¿
FAC
'1lT
22,2014-for
a
total of
37-38, 46,55,87. Defendants argue, however, that plaintiffs'
claims were rendered moot on May 22,2014, when DOCCS issued an order authorizing Doe to
have contact with M.S., id. n 87, and/or on June 4,2014, when Doe's parole officer modified his
parole conditions to allow unrestricted contact between Doe and M.S., id. n89.
'olt has long been settled that a federal court has no authority to give opinions upon moot
questions or abstract propositions, or to declare principles or rules of law which cannot affect the
matter in issue in the case before
it."
Dean v. Blumenthal,5TT F.3d 60, 64 (2d Cir. 2009)
(quoting Church of Scientolog,t of CøL. v. United States,506 U.S. 9, 12 (1992)). Accordingly,
"[t]he requisite dispute must persist throughout the litigation." R¿¿ssmanv. Bd. of Educ. of
Enlarged City Sch. Dist. of City of Watervliet,260 F.3d 114, 118 (2d Cir. 2001).
3
"If the dispute
Defendant Annucci is sued only in his official capacity and relies on a sovereign immunity
defense. The other six moving defendants are sued in both official and individual capacities;
they assert absolute and qualified immunity defenses.
9
should dissolve at any time due to a change in circumstances, the case becomes moot," and the
Court must dismiss the suit for lack of subject matter jurisdiction
. Id. at I 18-19.
However, "[t]he voluntary cessation of challenged conduct does not ordinarily render a
case moot because a dismissal for mootness would permit a resumption of the challenged
conduct as soon as the case is dismissed." Knox v. Serv. Emps.
Int'l
Union, Local 1000,132 S.
Ct.2277,2287 (2012); see also Christian Legal Soc. Chapter of the Univ. of Cø1., Hastings Coll.
of the Law v. Martinez,56l U.S. 661,724 n.3 (2010) (Alito, J., dissenting) (collecting cases).
Rather, "[v]oluntary cessation does not moot a case or controversy unless 'subsequent events
ma[ke] it absolutely clear that the allegedly wrongful behavior could not reasonably be expected
to recur."' Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1,551 U.S. 701,719 (2007)
(quoting Friends of Earth, Inc. v. Laidlaw Envtl Servs. QOC), Lnc.,528 U.S. 167, 189 (2000))
(second alteration in original).
Concretely, voluntary cessation of a challenged activity renders a case moot only
"if the
defendant can demonstrate that (1) there is no reasonable expectation that the alleged violation
will recur and (2) interim relief or events have completely
and irrevocably eradicated the effects
of the alleged violation." Clear Chqnnel Outdoor, Inc. v. City of New York,594F.3d94,lI0 (2d
Cir. 2010) (quoting Campbell v. Greisberger, S0 F.3d 703, 706 (2d Cir. 1996)). This is a
"formidable burden." Seidemannv. Bowen,499 F.3d Il9,128 (2dCir.2007) (quoting N.Y. Pub.
Interest Research Grp. v. lI/hitman,32l F.3d316,327 (2dCir.2003)).
Here, the pleadings and materials cognizable on a motion to dismiss do not indicate that
DOCCS's decision to permit Doe to have contact with M.S. is "unconditional and irrevocable."
Already, LLC v. Nike, Inc., 133 S. Ct.721,728 (2013). Quite to the contrary, in the li4ay 22,
2014 order authorizing such contact, Regional Director Hogan stated that his "decision does not
10
preclude any future decision to bar [Doe's] contact with his son based on emerging issues,
conditions or circumstances which would indicate to a parole officer that he is likely to or has
sexually reoffended any child." FAC Ex. O. Hogan's order also failed to define the "nature and
type of contact" Doe and M.S. are permitted to have. Id. Ex. P. The parole officers thus retain
substantial discretion over Doe's contact with his son. Doe's parole conditions were later
modified to permit unrestricted contact with M.S., id. n 89, but the order that did so contains no
representations or assurances about future modifications, id. Ex. Q.
It is plausible that the parole officers will later exercise their discretion to prevent Doe
from living with or visiting M.S. As pled, DOCCS has changed course no fewer than four times,
and has twice forbidden Doe from having any contact with his infant son: First, after allowing
Doe to have unsupervised visits with his l2-year-old daughter and overseeing his successful
completion of a sex-offender treatment program, parole officers abruptly required Doe to move
out of his family's apartment and forbade all contact with M.S. FAC TlJ 31-33, 37-38. Second,
after separating Doe from M.S. for four months, the officers abruptly allowed Doe to resume
contact with M.S. and return to his family's apartment. See id. !146. Third, after Doe had lived
with his wife and son without incident for nearly seven months, the offrcers inexplicably
required him to vacate the marital home and once again cease contact with M.S. Id.nn 54-55.
After a four-month investigation, Bureau Chief Lima affirmed the no-contact order. Id. nn7882, Exs.
L-M.
Based on the crimes Doe committed against a teenage
girl more than a decade
earlier, personal doubts as to whether Doe "ha[d] shown true progress in treatment," and
concerns about Doe's I2-year-old daughter, Lima stated, in a one-paragraph determination, that
"it would not
fl 82, Ex.
L.
be in the best interest of the child" to authorize contact between Doe and
M.S.
1d.
Fourth, after another eight months of separation and the filing of this lawsuit, and
11
after proceedings for emergency relief had commenced before this Court, Regional Director
Hogan issued a two-page order reversing Lima's decision and "allowfing] [Doe] contact with
[M.S.]." Id.n87,Ex.
O.
To be sure, DOCCS has now permitted Doe to live with M.S. since May 22,2014, a
period of more than a year. But that period has coincided with the pendency of this lawsuit,
which may have served to deter DOCCS from reversing course and reinstating terms that would
separate Doe from his son. Further, because "the fdefendants] continue[] to defend the legality
of [their actions], it is not clear why the[y] would necessarily refrain from [resuming such
actions] in the future." Knox,132 S. Ct. at 2287
. Until Doe is released
from parole in March
2016, he faces the risk of another reversal from the DOCCS. The defendants therefore have not
demonstrated that "there is no reasonable expectation that the alleged violation
will recur,"
and
the case is not moot. Clear Channel Outdoor, Lnc.,594 F.3d at 110.
Furthermore, even
if discovery
reveals that DOCCS is precluded from changing course
yet again, Doe will retain a claim for damages for past injuries. And as the Second Circuit has
repeatedly held, a defendant's "withdrawal of [a] challenged policy does not render moot [a
plaintiff s] requested relief for past constitutional violations." Dean, 577 F.3d at 66 (citing, inter
alia, Stokes v. Village of LVurtsboro, 818
F
.2d 4, 6 (2d Cir. 1987) ("Claims for damages or other
monetary relief automatically avoid mootness, so long as the claim remains viable.")). And even
if the "actual damages are speculative, '[i]t is clear that nominal damages are available in actions
alleging violations of constitutionally protected rights."'
Univ. of N.Y.,42 F.3d 135,
I4I
Id
(quoting Fox v. Bd. of Trs. of State
(2d Cir. 1994)). The Courttherefore rejects defendants' claims
of mootness.
T2
B.
Absolute Immunity
Six moving defendants (all but Annucci) argue that they are entitled to absolute
immunity. They contend that determining special parole conditions is a quasi-judicial,
adjudicatory function. The Court holds otherwise.
"A limited number of officials
liability for their official acts." Scotto
because absolute immunity
(quoting Spear v. Town of
odetracts
are entitled to absolute immunity from $ 1983 damages
v. Almenas, 143 F.3d 105, 110 (2d
Cir. 1998). "However,
from section 1983's broadly remedial purpose,"' id.
ll. Hartford, 954 F .2d 63 , 66 (2d Cir. 1992)), "' [t]he presumption is
that qualified rather than absolute immunity is sufficient to protect government officials in the
exercise of their duties,"' ld. (quoting Burns v. Reed,500 U.S. 478,486
(1991) (alteration in
original); Dorman v. Higgins, 821 F .2d 133 , 136 (2d Cir. 1 987) (citing Mitchell v. Forsyth, 472
U.S.
5
n,526 (1935) ("Absolute immunity
is rarely granted; qualified immunity is the norm.").
"Absolute immunity is proper only in those rare circumstances where the official is able to
demonstrate that the application of absolute immunity to the circumstances presented is required
by public policy." Scotto,l43 F.3d at 110.
In resolving whether an official is entitled to absolute immunity, the Court must consider
two factors:
o'the
need for absolute immunity in order to permit the effective performance of the
function, and the existence of safeguards against improper performance." Dorman, S2I F.2d at
136. "lA]bsolute immunity protects officials in their adjudicative or prosecutorial functions
only." Farrell
v. Burke,No. 97 Civ. 5708
(DAB), 1998 WL 751695, at *4 (S.D.N.Y. Oct. 28,
1993) (citing Scotto,143 F.3d at I 10); see also Dorman, S2I F.2d at 136 ("Functions most apt to
be accorded absolute, rather than qualified, immunity are those integrally related to the
judicial
process."). But absolute immunity "does not protect those same officials in the performance
l3
of
administrative or investigative functions." Farrell,l998 WL 751695, at*4. This distinction
reflects a'oofunctional approach"'; "the level of immunity 'flows not from rank or title or
location within the Government, but from the nature of the [official's] responsibilities."' Scotto,
143 F.3d at 110 (quoting Cleavinger v. Saxner,474U.S. 193,201(1985)).
Applying these principles, the Second Circuit, and several other courts of appeals, have
held that
o'a
parole board official is absolutely immune from liability for damages when he
'decide[s] to grant, deny, or revoke parole,' because this task is functionally comparable to that
of a judge." Scotto, 143 F.3d at 1 1 1 (quoting Sellars v. Procunier, 641 F.2d 1295, 1303 (9th Cir.
19S1) (alteration in original); see also Montero v. Travis,l7l F.3d 757,761 (2dCir.1999)
(collecting cases); Davis v. N.Y. State Div. of Parole,No. 07 Civ.5544 (NRB), 2008 V/L
3891524, at*12 (S.D.N.Y. Aug.20,2008); LaBounty v. Coombe, No. 95 Civ. 5592 (MBM),
1999
WL
177438, at x5 (S.D.N.Y. Mar. 30, 1999),
aff'd,208 F.3d 203 (2d Cir. 2000). For
similar reasons, courts in this District have held that the imposition of special parole conditions
can be an adjudicative act that merits absolute
immunity.
See
Farrell,
1998
WL 751695, at *4i
Stewart v. Smallwood, No. 92 Civ.4043 (SS), 1993 WL 77381, at * 1 (S.D.N.Y. Mar. 15, 1993)
(collecting cases).
By contrast, the Second Circuit has twice held that
ooa
New York State parole officer who
had recommended that a warrant be issued for a specific parole violation, but did not otherwise
'prosecute' the parole revocation, was not entitled to absolute immunity." Taylor v. Sullivan,
166 F.3d
I20I,l20I (2d Cir. 1998) (unpublished opinion). The Circuit reasoned that such
actions are not "integrally related to the judicial process." Scotto,143 F.3d at 111 (quoting
Dorman, S2l F.2d at 136). Nor did the officer
oohave
t4
broad discretion in deciding whether a
proceeding should be brought and what sanctions should be sought." Id. at 112 (quoting Butz
v.
Economou, 438 U.S. 47 8, 515(197 8)).
Here, the parole officers are clearly not entitled to absolute immunity for the allegedly
wrongful actions they took in the course of implementing the decisions to separate Doe from
M.S.
S¿e
Farrell,1998 V/L 751695,at*4. The more diffrcult question is whetherthe officers
should be accorded absolute immunity for making those decisions. The parties have not
identified, and the Court has not found, any cases from this Circuit that resolve whether parole
officers are entitled to absolute immunity for discretionary decisions applying parole conditions.
For the following four reasons, the Court's considered judgment is that they are not.
First, the application of parole conditions is not "integrally related to the judicial
process." Dorman, S2I F.2d at 136. As to this point, the Ninth Circuit's reasoning in Thornton
v. Brown,757 F.3d 834 (9th Cir.2013), is persuasive. The Ninth Circuit distinguished there
between the imposition of parole conditions and the enforcemenr of such conditions. The
imposition of parole conditions is "'integrally related to an official's decision to grant or revoke
parole,' which is a'quasi-judicial' function"'entitled to absolute immunity. Id. at840 (quoting
Swift v. Caliþrnia,384 F.3d 1184, l139 (9th Cir. 200a)). And, as noted, the Second Circuit
similarly affords absolute immunity to
a decision
"to grant, deny, or revoke parole." Scotto,I43
F.3d at 111 (citation omitted). On the other hand, the Ninth Circuit reasoned, "the manner in
which [parole officers] implement[] [a] condition" is
and therefore merits only qualified
ooan
element of their supervisory function"
immunity. Thornton,757 F.3d at 840 (citing Anderson
v.
Boyd,714F.2d906,9I0 (9th Cir. 19S3)). This conclusion accords with Second Circuit
precedent holding that certain supervisory functions-including investigating parole violations
15
and recommending revocation of
Scotto,143 F.3d at
parole-receive only qualified, not absolute, immunity.
See
lI2-13.
Here, the series of decisions regarding Doe's contact with M.S. had no relation to the
decision to grant his parole, but were in the nature of applying a preexisting condition, and the
officers were not acting
ooas
an arm of the
court." Dorman, S2I F .2d at I37
.
Because these
actions were supervisory, not judicial or quasi-judicial, the officers are not entitled to absolute
immunity.
Second, assessing the policy considerations the Second Circuit has identified as relevant,
absolute immunity is not necessary for "the effective performance of the function" at issue. 1d
at 136. The decisionin Robison v. Via,821 F.2d 913 (2d Cir. 1987), although arising in a
different factual context, is instructive. At issue there
\ryas a
decision by an assistant state
attorney and a state trooper to remove two children from their parents' custody based on a report
of sexual abuse. Id. at9l5. The Second Circuit rejected the claim that the "investigation of
alleged child abuse is a function so sensitive as to require a total shield from judicialrcview." Id.
at9l9. Although recognizing that
such investigation
"is obviously vital to interests of the child
and of society as a whole," the Court concluded that the offrcials' ability to investigate
complaints of abuse would not be undermined "by according them qualified rather than absolute
immunity." Id. at920.
The parole officers here were forced to engage in a similarly
difficult balancing of Doe's
fundamental right to have contact with his own young child and the need to protect M.S. from
abuse. However, there is no indication that the officers' duties "cannot be performed properly
unless all scrutiny is denied."
Id. at9l9.
Indeed, tellingly, no moving defendant argues that a
t6
grant of absolute immunity is essential to properly supervising parolees and applying parole
conditions.
Third, at least as pled, there are not adequate alternative "safeguatds against improper
performance" of the duties in question. Dorman, S2I F.2d at 736. As a point of contrast, the
Second Circuit has held that "federal probation officers [are] to be accorded absolute immunity
in connection with their preparation and presentation of presentence reports," in significant part
because
oothe
presentence report is subject to a number of procedural safeguards"; these include
the parties' opportunity to object to inaccuracies in the report and to appeal a sentence to a
federal appellate court. Id. at 138. Here, by contrast, Doe alleges that the decisions to terminate
his contact with his son were not made pursuant to a formal adversarial process that affords such
opportunities. Indeed, as pled, Doe did not receive notice that the officers were deciding whether
to terminate his contact with M.S., see FAC 1[I 37, 53-55; was not afforded an opportunity to be
heard, see id.; and was unable to appeal the decision to an independent tribunal, see id. tTlT40-41,
Ex. F (alleging that Bronx Family Court defened to the existing parole conditions and dismissed
Doe's petition for visitation without ruling on its merits).4 Moreover, although the appeal to
Regional Director Hogan led to a favorable outcome, Hogan's decision was issued while an
application for emergency relief was pending with this Court; it is by no means clear that Doe's
bid for review would otherwise have received a comparably fresh review. SeeFAC TlT85-88,
Ex. O. In light of these procedural shortcomings, the important fundamental rights at stake
"strongly [favor] the granting of only a qualified immunity, in which the objective
a
On paper, the Protocol created in2013 appears to address some of these shortcomings. See id.
l|f 57-60, Ex. H. In Doe's
See id.
case, however, as alleged, DOCCS did not comply
Tf 78-82.
l7
with the Protocol.
reasonableness of a removal of the child from the parents' custody would be subject to
judicial
review." Robison, 821 F.2d at 920.
Fourth, extending absolute immunity to parole officers applying parole conditions would
significantly expand the scope of such immunity. Like many convicted sex offenders, Doe is
subject to several dozenparole conditions, more than 30 of which vest the parole officers with
discretion similar to that at issue here. FAC Ex.
B-C. In addition to the power to decide
whether Doe may have contact with any person under age 18, a parole officer has authority to
grant or deny permission for Doe to own a camera, computer, scanner, or cell phone; possess
"any children's products" or photos of minors; rent a post office box; obtain a driver's license;
"reÍrt, operate or be a passenger in any vehicle"; travel outside of New York City; visit an arcade,
bowling alley, beach, or swimming pool; or have visitors at his approved residence. See id.
Particularly given the presumption against absolute immunity, see, e.g.) Scotto,143 F.3d at 110,
there are sound reasons not to give parole officers discretion, unreviewable in a subsequent court
action, over so many aspects of a parolee's life.
Finally, as a practic al matter, the Court notes that absolute immunity does not bar suits
for injunctive or declaratory relief. Shmueli v. City of New York,424F.3d231,239 (2dCir.
2005) (citing, inter alia, Pulliam v. Allen,466 U.S. 522,536-37 (1984)). Accordingly, Doe's
claims for such relief would persist regardless of its resolution of the immunity claim, and the
affected defendants would remain parties to this case.
C.
Qualified Immunity
The same six defendants alternatively claim that they are entitled to qualified immunity.
They argue, in essence, that in deciding to terminate Doe's parental rights, they engaged in a
18
difficult balancing between Doe's parental rights and his family's need for protection, and that
their ensuing decisions, erroneous or not, were reasonable under the law and made in good faith.
"Qualified immunity shields government officials from civil damages liability unless the
official violated a statutory or constitutional right that was clearly established at the time of the
challenged conduct." Taylor v. Barkes,l35 S. Ct. 2042,2044 (2015) (quoting Reichle v.
Howards,132 S. Ct. 2088, 2093 (2012)); see also, e.g., City & County of San Francisco
v.
Sheehan,l35 S. Ct. 1765,1774 (2015); Harlow v. Fitzgerald,45T U.S. 800, 818 (1982). "The
relevant, dispositive inquiry in determining whether a right is clearly established is whether it
would be clear to a reasonable offrcer that his conduct was unlawful in the situation he
confronted
."
Lore v. City of Syracuse, 670 F.3d 127, 162 (2d Cir. 2012) (quoting Saucier
v.
Katz, 533 U.S. 194, 202 (200I)). Accordingly, for an action to lie, "existing precedent must
have placed the statutory or constitutional question beyond debate."
Taylor,l35 S. Ct. at2044
(quoting Ashcroft v. al-Kidd,131 S. Ct.2074,2083 (2011)). "This exacting standard 'gives
govemment officials breathing room to make reasonable but mistaken judgments' by
'protect[ing] all but the plainly incompetent or those who knowingly violate the law."' Sheehan,
135 S. Ct. at 177 4 (qtoting al-Kidd, l3 1 S. Ct. at 2085) (alteration in original).
Significant here, defendants pursue qualified immunity on a motion to dismiss. And "a
defendant presenting an immunity defense on a Rule l2(bx6) motion instead of a motion for
summary judgment must accept the more stringent standard applicable to this procedural route."
McKenna v. í4/right,386 F.3d 432, 436 (2d Cir. 2004). Specifically, "the plaintiff is entitled to
all reasonable inferences from the facts alleged, not only those that support his claim, but also
those that defeat the immunity defense."
appears beyond doubt that the
Id. "ITfhe motion
may be granted only where
'it
plaintiff can prove no set of facts in support of his claim that
t9
would entitle him to relief."' Id. (quoting Citibank, N.A. v. K-H Corp.,968 F.2d 1489, 1494 (2d
Cir. 1992)). The defendants therefore face a "formidable hurdle." Id. at 434.
As to the decisions made here for which the defendants seek immunity, at the time the
defendants acted,
"[i]t [wa]s well-established
that a parent's interest in maintaining a relationship
with his or her child is protected by the Due Process Clause of the Fourteenth Amendment."
United States v. Myers, 426 F.3d
ll7 , 125 (2d Cir.2005). Indeed, the Supreme Court had
described "the interest of parents in the care, custody, and control of their children" as "the oldest
of the fundamental liberty interests recognized by th[e] Court." Troxel v. Granville, 530 U.S. 57,
65 (2000) (plurality opinion); see also, e.g., Quilloinv. Walcott,434U.S.246,255 (1978) ("We
have recognized on numerous occasions that the relationship between parent and child is
constitutionally protected"); Santoslry v. Kramer,455 U.S. 745, 753 (1982) ("The fundamental
liberty interest of natural parents in the care, custody, and management of their child does not
evaporate simply because they have not been model parents."). Further, it was established that
"[c]hildren have
a
parallel constitutionally protected liberty interest in not being dislocated from
the emotional attachments that derive from the intimacy of daily family association."
Southerlandv. City of New York,680F.3dl27,l42(2dCir.2012) (quoting Kia P. v. Mclntyre,
235 F.3d 749,759 (2d Cir. 2000)); see also Duchesne v. Sugarman, 566 F.2d 817 ,825 (2d Cir.
1977) ("Th[e] right to the preservation of family integrity encompasses the reciprocal rights
of
both parent and children.").
In two previous cases, the Second Circuit has applied these well-established principles to
analogous parole conditions. First,
in United States v, Myers, 426 F.3d
ll7
(2d Cir. 2005), the
defendant faced a "special condition prohibiting him from spending time alone with his child
absent advance authorization from the U.S. Probation
20
Office." Id. at I20. Writing for
the panel,
then-Judge Sotomayor noted that the "conditions of supervised release must 'involve[] no greater
deprivation of liberty than is reasonably necessary."' Id. at 124 (quoting 18 U.S.C. $ 3583(d))
(alteration in original). V/here "the liberty interest at stake is fundamental, a deprivation of that
liberty is 'reasonably necessary' only if the deprivation is narrowly tailored to serve a compelling
government interest." Id. at 126 (citing Washington v. Glucksberg, 521 U.S. 702,721 (1997)).
On the record before the Circuit, however, the panel could not resolve whether the challenged
parole condition satisfied strict scrutiny. Id. at 127-30. The Circuit thus remanded to the district
court to balance "the intended purpose of the challenged condition" against the defendant's
interest, if any, "as the parent of a child in foster care born out of wedlock." Id.
Second,
in United States v. McGeoch,
546 F.
App'x 44 (2d Cir. 2013) (summary order),
the parole conditions imposed at sentencing provided that, upon release, the defendant "shall not
have any direct contact . . . with a person under the age
of 18 unless it is supervised by a person
approved of by the probation officer." Id. at 46. This broadly worded condition, by its terms,
would restrict the defendant's contact with his sons, who were to be 12 and l4 on the anticipated
date of his release. Id. at
4748. Significant
here, the Second Circuit, applying extant precedent,
held that "[a] condition of supervised release that prevents a father from seeing his children
outside the presence of an approved monitor is a severe one subject to careful scrutiny." Id. at
48. "Absent
an individualized inquiry into whether [the defendant's] sexual proclivities pose a
threat to his sons," the "imposition of a harsh condition of supervised release that either prohibits
interaction with his children or makes such interaction subject to supervision by a person
approved of by the probation offrcer violates [his] due process rights." Id. at 49. Because the
o'articulateld] why such a severe intrusion on the fundamental right to
district court had not
familial association was necessary under the circumstances," the Second Circuit remanded. Id.
2T
To be sure, these two cases involved the imposition of parole conditions by a district
court judge rather than application of such conditions by parole officers, but they are germane to
the reasonableness of the defendants' actions here because denial of qualified immunity "do[es]
not require a case directly on point." Taylor,l35 S. Ct. at2044 (quoting al-Kidd,13l S. Ct. at
2083). It is sufficient that ooexisting precedent . . . have placed the statutory or constitutional
question beyond debate." Id.
Here, it is beyond dispute that both Doe and M.S. had a fundamental liberty interest in
their familial relationship, and so constraints imposed by parole officers were required to have
been
oonarrowly
tailored to serve a compelling government interest." Myers, 426 F.3d at 126.
Although the state has a compelling interest in preventing child abuse, a reasonable parole
officer could not conclude that the deprivation of literally all contact between Doe and M.S.,
absent factual justification, was a narrowly tailored restriction. And on the facts pled, such
justification \ilas lacking. Doe had successfully completed sex offender treatment, FAC fln26,
32-33; presented an extremely low risk of recidivism, id.nn39,46,75-77; had unsupervised
visits with his teenage daughter, id.nn3l,72; and lived with his son without incident for
significant periods of time, id.nn 46,72,89. To be sure, Bureau Chief Lima, in explaining his
determination, expressed concerns about Doe's past sexual offense against a teenage girl. See id.
fl 82. But it does not follow that Doe's "sexual proclivities pose a threat to his son[]," McGeoch,
546F. App'x at 49; on the contrary, a clinical evaluation found that he "did not make the criteria
for pedophilia" and was "exclusively heterosexual." Id. !l 75. Accordingly, considering the facts
pled, the balance of interests favored either family reunification or, at the least, an intermediate
step such as supervised
visitation. Viewing the pleadings in the light most favorable to the
22
plaintiffs, the denial of all contact between Doe and his newborn and later infant son therefore
violated clearly established law.s
Further, on the facts pled, it was unreasonable for a parole officer to deprive Doe of all
contact with his son without any process. As the Supreme Court has long instructed, "[t]he
essence of due process is the requirement
that'aperson in jeopardy of serious loss [be given]
notice of the case against him and opportunity to meet
it."'
Mathews v. Eldridge,424 U.S. 319,
34849 (1976) (quoting Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123,l7l-72
(1951) (Frankfurter, J., concuning)). Under the familiar Mathews test:
[I]dentification of the specific dictates of due process generally requires
consideration of three distinct factors: First, the private interest that will be affected
by the official action; second, the risk ofan erroneous deprivation ofsuch interest
through the procedures used, and the probable value, if any, of additional or
substitute procedural safeguards; and finally, the Government's interest, including
the function involved and the fiscal and administrative burdens that the additional
or substitute procedural requirement would entail.
Id. at335 (citing Goldbergv. Kelly,397 U.S. 254,263-71 (1970)).
As of the time the defendants here acted, the Second Circuit, "in a substantial line
cases, ha[d] addressed the standards by which a state actor is measured
of
for due process purposes
when he or she removes a child from a parent's custody in the interests of the safety of the
child." Kia P.,235 F.3d at759. As to the first Mothews factor, the
Second Circuit had
recognized o'the very great importance of the private liberty interest . . . of a parent in the
companionship, care, custody and management of his or her child." Duchesne, 566
F
.2d at 828
oono
inherent constitutional right to parole," Annucci Br.2I, or
Defendants argue that Doe has
to "be[] free from special conditions of release," Rosado Br. 9, Lima Br. 9, Capiello Br. 9. But
that argument misses the point. As defendants concede, parole conditions must be "reasonably
related to past conduct," "not arbitrary and capricious," and "designed to deter recidivism and
prevent further offenses." Id.; see also Boddie v. N.Y. State Div. of Parole,285 F. Supp. 2d 421,
428 (S.D.N.Y. 2003). As pled in the FAC, the application of Doe's parole conditions to deny
him access to his son was arbitrary and cannot satisfy this standard.
5
23
n.26 (citation omitted); see also, e.g., Rivera v. Marcus,696F.2d 1016, 1027 (2d Cir. 1982)
("[Plaintiffs]
seek protection
from state action which threatens the integrity and stability of their
familial relationship. This important interest has consistently been recognized and afforded farreaching due process protection."). And it had observed that "the 'fact specific' nature of the
determination of the fitness of a parent presents a grave risk of erroneous deprivation when the
action of the state is not promptly reviewed." Duchesne,566F.2d at828 n.26. In light of these
factors, even if a parent and child must be separated on an "emergency basis," the Second Circuit
had held, "the state has the duty to initiate a 'prompt' post-deprivation hearing." Kia
P.,235
F.3d at 754,760 (citation omitted).
Measured against these standards, the facts pled support a claim that the defendants'
decision to deny Doe access to his son was unreasonable-and a clear violation of procedural
due process. As alleged in the FAC, the parole officers
first informed Doe that he was not
allowed to have any contact with M.S. on October 4,2012. FAC
f|l 37-38.
Before that date,
Doe had not received any notice that DOCCS was considering making such a decision, nor was
he given a pre- or post-deprivation opportunity to be heard. See
id.
On August 22,2013, after
authorizing family reunification for some months, the officers again told Doe that he could not
reside or have contact with his infant son,
M.S. Id. n 54. Although DOCCS commenced an
investigation shortly after Doe moved out of his family's apartment, Doe did not receive an
opportunity to be heard until May 5,2\I4,months after he was separated from M.S. 1d. T 86.
To be sure, at this early stage, the Court carurot resolve precisely what procedures were required
in this context, and the facts established in discovery or at trial may diverge materially from
those
pled. But,
as alleged, the procedural safeguards available to Doe---or, more accurately, the
24
lack thereof--were sufficiently plainly unconstitutional as to counsel against a finding
of
qualified immuity.
Finally, again as a practicalmatter, qualified immunity, like absolute immunity, "only
bars monetary
damages-it does not bar declaratory or injunctive relief." Robinson v. New York,
486 F. App'x 905,907 (2d Cir. 2012) (summary order) (citing Adler v. Pataki, 185 F.3d 35, 48
(2d Cir. lggg)). Therefore, a grant of qualified immunity would not result in any defendant's
dismissal from this case, but only from the portion of plaintiffs' claims directed at money
damages.
D.
Sovereign Immunity
Annucci, who is sued only in his official capacify, argues that the Court must dismiss all
claims against him on the basis of sovereign immunity.
The Eleventh Amendment bars suits in federal courts against states and state officials
acting in their official capacities by their own citizens, citizens of another state, and foreign
sovereigns. City of Sheltonv. Hughes,578 F. App'x 53,54-55 (2dCir.2014) (summary order)
(citing, inter ølia,
ï4/.
Mohegan Tribe & Nationv. Orange County,395 F.3d 18,20 (2dCir.
2004)). However, "[u]nder the well-known exception to this rule first set forth in Ex parte
Young,209 U.S. 123 (1903), a plaintiff may sue a state official acting in his official capacitynotwithstanding the Eleventh Amendment-for prospective, injunctive relief from violations of
federal law." State Emps. Bargaining Agent Coal. v. Rowland,494F.3d7I,95 (2dCir.2007).
"[I]n determining whether the doctrine of Ex pørte
Young avoids an Eleventh Amendment bar to
suit, a court need only conduct a straightforward inquiry into whether [the] complaint alleges an
ongoing violation of federal law and seeks relief properly characterized as prospective." Va.
25
Office
þr Prot. & Advocacy
v. Stewart,
13 1
S. Cf. 1632, 1639 (2011) (quoting Verizon Md. Inc.
v. Pub. Serv. Comm'n of Md.,535 U.S. 635, 645 (2002)) (second alteration in original).
Doe's requests for monetary and declaratory relief are retrospective. His claim for
injunctive relief against Annucci, by contrast, is prospective-Doe seeks to bar certain future
applications of the special parole condition. Doe's claim for injunctive relief therefore falls
within the Young exception
law." Stewart,
131 S. Ct.
so long as the complaint alleges an "ongoing
at
1639; see atlso
violation of federal
ldaho v. Coeur d'Alene Tribe of ldaho, 52I U.S. 261,
2SI (1991) ("An allegation of an ongoing violation of federal law where the requested relief is
prospective is ordinarily sufficient to invoke the Young fiction.").
The violation alleged here cannot be properly characterized as "ongoing" if that term
requires a continuous violation. That is because Doe presently lives with his family and is
permitted to have unrestricted contact with his minor children. FAC T 89. But the alleged
violation can be construed
as
"ongoing" in that, until Doe is released from parole in March 2016,
the parole officers appear to be able, at any time, to reverse course and terminate Doe's contact
with M.S. See pp. 10-12, suprq. Accordingly, the decisive legal question
as
to Annucci's bid
for sovereign immunity is whether the possibility of a future violation suffices to render that
violation ooongoing."
Neither the Supreme Court nor the Second Circuit has squarely addressed this question.
But other courts of appeals have held that the challenged action need not literally "be in
progress" to defeat a claim of sovereign immunity; rather, "where there is a threat of future
enforcement that may be remedied by prospective reliet the ongoing and continuous
requirement has been satisfied." Summit Med. Assocs., P.C. v. Pryor,180 F.3d 1326,1338 (1lth
Cir.1999); see also Charles Alan ÏVright et al., l3D Fed. Prac. &. Proc. $ 3566,at292 (3d ed.
26
2003) ("[T]he best explanation of Ex parte Young and its progeny is that the Supremacy Clause
creates an implied right of action for injunctive relief against state officers who are threatening to
violate the federal Constitution and laws.") (quoted in Burgio & Campofelice, Inc. v. N.Y. State
Dep't of Labor,107 F.3d 1000, 1006 (2d Cir. 1997)); Waste Mgmt. Holdings, Inc. v. Gilmore,
252
F
.3d
3
16, 330 (4th Cir. 2001) ("The requirement that the violation of federal law be ongoing
is satisfied when a state offrcer's enforcement of an allegedly unconstitutional state law is
threatened, even
if
the threat is not yet imminerrt."); Vickery v. Jones, 100 F.3d 1334,1346 (7th
Cir. 1996) ("[T]he Young exception permits relief against state officials only when there is an
ongoing or threatened violation of federal law."); Hanv. U.S. Dep't of Justice, 45 F.3d 333, 338
(9th Cir. 1995) (Eleventh Amendment bars suits where "[t]here is no allegation that the state
defendants are likely to approve third party agreements in the future or that
plaintifß otherwise
face athreat of harm from the state defendants' future actions."). Consistent with these cases,
the Second Circuit has stated that "alleged injuries stemming only from past conductwith no
plausible threat offuture violøtions. . . do not fall within the Young exception to Eleventh
Amendment immunity." Clarkv. DiNapoli, 510 F. App'x 49,51(2d Cir. 2013) (summary
order) (emphasis added).
This conclusion is, furthermore, consistent with the Supreme Court's admonition that
Young distinguishes between cases
"in which the relief against the state official directly ends the
violation of federal law as opposed to cases in which that relief is intended indirectly to
encourage compliance with federal law through deterrence or directly to meet third-party
interests such as compensation." Papason v. Allain,478 U.S. 265,277-78 (1986); see also
Green v. Mansour, 474lJ.S. 64,68 (19S5) ("Remedies designed to end a continuing violation
of
federal law are necessary to vindicate the federal interest in assuring the supremacy of that law.
27
But compensatory or deterrence interests are insufficient to overcome the dictates of the
Eleventh Amendment.") (citation omitted). In other words, the requirements that a complaint
allege an "ongoing violation" and seek "prospective relief," although sometimes enumerated as
separate elements, see, e.g., In re Deposit Ins. Agency, 482F.3d 612, 618 (2d Cir. 2007), arc
closely interrelated. And the nature of the relief requested can shed light on whether the
violation is ongoing. See Rowland,494 F.3d at 96 ("U]t is relevant-in considering the
existence vel non of an ongoing
violation-to
ask whether the claimed remedy is
still
available."); Summit Med. Assocs., 180 F.3d at 1338 ("[T]he ongoing and continuous
requirement merely distinguishes between cases where the relief sought is prospective in natute,
f.e., designed to prevent injury that
will occur in the future, and
cases where
relief is
retrospective.").
Here, as noted, the requested injunctive relief is prospective. It does not relate to conduct
that occurred in the past. Cf, Nat'l R.R. Passenger Corp. v. McDonald,779 F.3d 97, I02 (2d Cir.
2015) ("[T]akings are not an'ongoing violation' of federal law. . . . V/hat Amtrak considers an
'ongoing violation'-New York's entry onto and use of the
land-is not even a violation of the
law, because New York has legal title to it."). Nor is it an attempt to obtain "compensation for
past
injuries." Engv. Coughlin, 858 F.2d 889, 896 (2d Cir. 1988);
II4,I22 (2d Cir.2000) ("[T]he
cf
Wardv. Thomøs,207 F.3d
ongoing ability of the subclass to recover for past underpayment
does not change the retrospective nature of such
relief."). Rather, anticipating the "threat of
future enforcement," it aims to ooprevent injury that will occur in the future." Summit Med.
Assocs., 180 F.3d at 1338.
The Court therefore holds that the FAC states a claim for an ongoing violation, such that,
as pled, sovereign
immunity does not bar Doe's claim for injunctive relief against Annucci.
28
Related, the Court notes that the parties dispute whether the June 4,2014 modifications to
Doe's parole conditions were final and irrevocable. Drawing all reasonable inferences in favor
of the plaintifß, as the Court must at this stage, the Court concludes that, much as they hope not
to, plaintiffs could face adverse changes to Doe's parole conditions in the future. The possibility
that DOCCS may againreverse course and impose a new separation order, to the detriment
of
Doe and his family, is particularly plausible given DOCCS's history, as pled, of arbitrarily
enforcing, and changing, Doe's parole conditions. See pp.l0-I2, suprq. That said, if discovery
reveals that the parole condition granting Doe unrestricted access to M.S. cannot be
there is "no plausible threat of future violations," Clark,510 F. App'x at
5l-the
altered-that
factual
underpinning of this holding will no longer apply, and the Court would then invite Annucci to
move for summary judgment on the basis of sovereign immunity.
E.
Preclusion
Federal courts recognize two types of preclusion: claim preclusion and issue preclusion.
Under the doctrine of res judicata, also known as claim preclusion, "a ftnaljudgment on the
merits of an action precludes the parties or their privies from relitigating issues that were or
could have been raised in that action." Flaherty v. Lang,199 F.3d 607,612 (2d Cir. 1999)
(quoting Rivet v. Regions Bank of La.,522 U.S. 470, 476 (1998)) (emphasis omitted). Res
judicata bars a later action when three conditions are met: "(1) the previous action involved an
adjudication on the merits; (2) the previous action involved the plaintifß or those in privity with
them; [and] (3) the claims asserted in the subsequent action wete, or could have been, raised in
theprioraction." TechnoMarine SAv. Giftports, Únc.,758F.3d493,499 (2dCir.2014) (quoting
Monøhanv. N.Y.C. Dep't of Coru.,214F.3d275,285 (2d Cir. 2000) (alteration in original).
Collateral estoppel, or issue preclusion, applies when an issue raised in a subsequent suit was
29
"actually and necessarily determined" in
a
prior litigation; this precludes
a
party from relitigating
the same issue based on a different cause of action. Montana v. United States, 440 U.S. 147, 153
(1979). To determine whether aparty is collaterally estopped from raising an issue,
a
court
considers whether "(1) the identical issue was raised in a previous proceeding; (2) the issue was
'actually litigated and decided' in the previous proceeding; (3) the party had a'full and fair
opportunity' to litigate the issue; (4) the resolution of the issue was 'necessary to support
and final judgment on the
a
valid
merits."' Interoceanica Corp. v. Sound Pilots, [nc.,107 F.3d 86, 91
(2dCir.1997) (quoting Cent. HudsonGas & Elec. v. EmpresaNavieraSantaS.A.,56 F.3d359,
368 (2d
Cir. 199s)).
Annucci argues that Doe's claims are barred by claim preclusion and issue preclusion
because Doe
"is a member of the class in Doe v. Overfield,"
a class-action lawsuit
filed in the
Western District ofNew York. Annucci Br. 18. That is factually wrong. The complaint in
Overfield defined the class as "all parents who are no\ry or will be in the future on parole for a
criminal offense unrelated to sexual misconduct, and who are prohibited by defendants from
contact with their children, when both parents of these children support parental contact." No.
08 Civ. 6294, Dkt. 70, at fl 35 (emphasis added). Because Doe was convicted of rape and
criminal sexual acts, FAC l24,he is, by definition, not "on parole for
a
criminal offense
unrelated to sexual misconduct" and is therefore not a member of the Overfield class. Further,
the Overfield class plainly does not include Jane Doe and M.S., who are also named as plaintiffs
in this case. Annucci's motion to dismiss based on a claim of preclusion is therefore unavailing.
F.
Abstention
Following the decisioninYounger v. Harri¡401 U.S. 37 (1971), federal courts may not
enjoin "state criminal prosecutions," "civil enforcement proceedings," and "civil proceedings
30
involving certain orders thatare uniquely in furtherance of the state courts' ability to perform
their judicial functions." Sprint Commc'ns, Inc. v. Jacobs,l34 S. Ct. 584, 588 (2013) (quoting
New Orleans Pub. Serv., Inc. ("NOPSI") v. Council of City of New Orleans,49l U.S. 350,36763 (19S9)). Younger abstention, however, is merited only in "exceptional" circumstances. Id.
"[F]ederal courts ordinarily should entertain and resolve on the merits an action within the scope
of a jurisdictional grant, and should not 'refusfe] to decide a case in deference to the States."' Id.
(quoting NOP$,491 U.S. at 368).
Here, there is simply no ongoing state proceeding. Doe's criminal prosecution concluded
in May 2005, FAC T 24, andhis administrative appeal was resolved shortly after Doe's suit was
filed in this Court in April 2014, id. n87. Annucci may be correct that Doe could have brought
his claims through an Article 78 proceeding in state court, s¿e Annucci Br. 17-18, but the
availability of that alternative forum does not provide
a basis
for dismissing or staying Doe's
claims here. See, e.g., Zinermonv. Burch, 494 U.S. II3,124 (1990) ("'The federal remedy is
supplementary to the state remedy, and the latter need not be first sought and refused before the
federal one is invoked.' Thus, overlapping state remedies are generally irrelevant to the question
of the existence of a cause of action under $ 1 983.") (citation omitted); Patsy v. Bd. of Regents
of
State of F\a.,457 U.S. 496, 516 (19S2) ("[E]xhaustion of state administrative remedies should
not be required as a prerequisite to bringing an action pursuant to $ 1983.").
G.
Failure to State a Claim
For the reasons discussed in Section III.C, supra, the Court holds that the FAC states a
claim for violations of plaintiffs' substantive and procedural due process rights. The remaining
question is whether the FAC adequately alleges the personal involvement of each moving
defendant in those violations, so as to state a claim against that individual.
31
"It is well settled in this Circuit that personal involvement of defendants in alleged
constitutional deprivations is a prerequisite to an award of damages under $ 1 983." Farid
v.
Ellen,593 F.3d 233,249 (2dCir.2010) (quoting Farrellv. Ùurke,449F.3d470,484 (2dCir.
2006)). "A defendant may be personally involved in a constitutional deprivation within the
meaning of 42 U.S.C. $ 1933 in several ways." Williams v.
Smith,7ïlF.2d3l9,323 (2dCir.
1936). A defendant is "personally involved" if he "directly participated in the infraction." Id.
(collecting cases). ooDirect participation" means "personal participation by one who has
knowledge of the facts that rendered the conduct illegal." Provost v. City of Newburgh,262
F
146,155(2dCir.2001)(citingGastonv.Coughlin,249F.3d156,165-66(2dCir.200l)).
The
.3d
personal involvement requirement is also satisfied where a parole offtcer is alleged to have
o'actually enforced" a parole condition, such as by arresting the parolee for a
violation. Faruell,
449 F.3d at 484.
L
Defendant Lima
As pled, Bureau Chief Lima was the primary driving force behind the constitutional
violations. On August 6,2013,"Lima instructed Senior Parole Officer Rosado to ensure that Mr.
Doe immediately left [his family's] residence." FAC
carried out Lima's orders.
Id.ffi
f 53. Subordinate parole officers then
54-55. Next, on October 2,2013, Lima commenced an
investigation regarding Doe's request to have contact with his son. Id. fl 62. On at least one
occasion, October 7,2013, Lima met with parole officers to discuss the investigation and give
them instructions. Id. n
æ. Finally, on February 2l,20I4, "Lima
issued a one-paragraph
determination denying Mr. Doe's request for contact with M.S." Id. n82, Ex. L.
These factual allegations, taken as true, are amply sufficient to establish that Lima was
personally involved in the alleged constitutional deprivations.
32
2.
Defendants Cappiello, Rosado, and Valerio
Like Lima, Senior Parole Officers Cappiello and Rosado were central participants in the
constitutional violations alleged here. On October 4,2012, they "told Mr. Doe that, despite his
completion of the NYCATS program, his release conditions barred him from residing with
children under the age of 18, and that he therefore needed to move out of his family's apartment
immediately." Id. fl 37. Whether Cappiello and Rosado made the decision to enforce Doe's
parole condition in this manner or simply enforced a decision made by someone else, this
allegation adequately pleads that these two officers were personally involved in the alleged
constitutional violation. See Farrell, 449 F.3d at 484.
In addition, the FAC alleges that Offrcer Cappiello directed Doe to inform the Bronx
Family Court of his parole condition, id. n 4l ; and "oversaw" Scott's supervision of Doe from
October 2012to April2013, during which time Cappiello periodically met with Scott
ooto
discuss
Mr. Doe's case, including his living situation," id.nn 42,49. Based on these allegations, the
Court can reasonably infer that Cappiello "contributed to" the decision to keep Doe and M.S.
separated from October 2012 to February 2013, and the decision to again deprive Doe of contact
with M.S. in August 2013.
See Barnes v. .Ross,
926F. Supp. 2d499,508 (S.D.N.Y. 2013)
("fDefendant] was aware of, and contributed to, [the alleged constitutional violation]. This
direct, personal involvement is sufficient to allege personal involvement.").
Further, the FAC alleges that by mid-2013, Officer Rosado "had taken over supervision
of Mr. Doe['s] case" from Cappiello. Id. 1151. In that capacity, on June 17,2013, Rosado
"instructed Scott to review the case to confirm that Mr. Doe was properly residing with his
family." Id. OnAugust 6,2013, "Rosado informed Bureau Chief Lima that Mr. Doe
was
residing with his wife and child" and received instructions "to ensure that Mr. Doe immediately
JJ
left the residence." Id. n fi. Rosado also "oversaw the investigation," met with Valerio to
"determinfe] whether the [parental contact] request should be approved," and "issued a report to
[Lima] summarizing the results of the investigation." FAC 11I71, 79-80. In light of these
allegations, Rosado was, even more than Cappiello, actively personally involved in the alleged
constitutional violations.
As to Officer Valerio, the FAC alleges that he replaced Scott as Doe's primary parole
officer on September 10, 2013. FAC T 56. At that time, Doe was bared from living with his
family or having any contact with M.S.
Se¿
id.nn 53-55. In his capacity as Doe's parole
officer, Valerio had significant authority, including to approve Doe's request'oto reside alone in
studio apartment." Id.
l73.
a
He also participated in the investigation. Id. flfl 68-72. And,
critically, he met with Rosado on December 9, 2013 to "determin[e] whether the [parental
contact] request should be approved." Id. t179. Accordingly, as alleged, Valerio had power over
Doe's living situation and was one of the relevant decision makers assessing the no-contact
order; he was therefore personally involved in the constitutional violations.
3.
Defendants Rennie Rodriguez and Rebecca Rodriguez
In contrast to the other parole officers, Offrcers Rennie and Rebecca Rodriguezwere
involved only in the investigation. See id.Il[ 17-18,
7l-72.
Concretely, they contacted and
interviewed witnesses, searched for and reviewed records, and received information. See id.
172. Butthe FAC
does not allege that the investigation itself was somehow improper. Nor does
it allege that Rennie or Rebecca Rodriguez made a recommendation regarding Doe's contact
with M.S., participated in
a meeting
in which a decision as to that issue was made, enforced the
decision to separate Doe and M.S., or otherwise contributed to the constitutional violations.
Accordingly, Rennie Rodriguez and Rebecca RodriguezweÍe not personally involved in the
34
violations alleged. Compare Barnes,926F. Supp. 2d at 508 (finding personal involvement
where defendant "was aware of, and contributed to" the allegedly unconstitutional treatment),
and Pugh v. Goord,571 F. Supp. 2d 477, 514-15 (S.D.N.Y. 2008) (finding personal
involvement where defendant "was consulted" and "espoused views" that led to the creation of
the allegedly unconstitutional policy), with Vogelfang v. Capra, 889 F. Supp. 2d 489,503
(S.D.N.Y. 2012) (finding no personal involvement where defendants were not "involvefd] in any
event which constituted a violation
15527
of [plaintiffls] rights"), ønd Odom v. Calero, No. 06 Civ.
(LAK) (GWG), 2008 V/L 2735868, at*6-7 (S.D.N.Y. July 10, 2008) (finding no personal
involvement where defendant reviewed an administrative determination). The claims against
these two defendants therefore must be dismissed.
4.
Defendant Annucci
Defendant Annucci is sued only in his official capacity, as Acting Commissioner
of
DOCCS, and plaintifß seek only injunctive relief against him. Accordingly, plaintifß are not
required to establish that Annucci was personally involved in the alleged constitutional
violations.
See
Farid,593 F.3d at249 ("[P]ersonal involvement of defendants in alleged
constitutional deprivations is a prerequisite to an award of damages under $ 1983.") (citation
omitted) (emphasis added). Instead, the relevant question is whether Annucci "has the authority
toperformtherequiredact." Zoppullav. Fischer,No. 11Civ.6733 (JMF),2013 V/L 1387033,
at *10 (S.D.N.Y. Apr. 5, 2013) (quoting Briscoe v. Rice, No. 11 Civ. 578 (JFB) (ETB), 2012WL
253874, at *4 (E.D.N.Y. Jan.
27,2012)). As the "head" and "chief executive officer" of
DOCCS, N.Y. Con. Law $$ (1)-(2), Annucci has authority to enforce an injunction issued
against that Department.
35
Annucci objects that the New York State Board of Parole is independent from DOCCS.
S¿e
N.Y. Exec. Law $$ 259-b,259-c. This argument is unavailing. Plaintifß do not challenge
the imposition of the special parole condition by the Board of Parole; rather, they challenge the
application and enforcement of that condition by the individual parole officers discussed above.
Annucci thus o'has the authority to perform the required act," Zappulla,20l3 WL 1387033, at
* 10, namely, to prevent the
unconstitutional implementation of a parole condition by the parole
officers who work under him.
CONCLUSION
For the foregoing reasons, the motions to dismiss are granted as to Rennie Rodriguez and
Rebecca Rodriguez, and denied as to all other defendants. The Clerk of Court is respectfully
directed to terminate Rennie Rodriguez and Rebecca Rodriguez as defendants in this case, and to
terminate the motions pending at docket numbers
steps in this case
will
ll2,
116,
ll9, and 141. An order as to next
issue shortly.
SO ORDERED
lú^^lA e,,#/Ny
PAUL A. ENGELMAYER
United States District Judge
Dated: July 15,2015
New York, New York
36
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