Booker v. Ehrlich et al

Filing 35

REPORT AND RECOMMENDATION re: 24 FIRST MOTION to Dismiss the Amended Complaint. filed by David Terhune, Elizabeth Ehrlich, Aretha Singh, City of New York, 23 Amended Complaint filed by Michael Booker. By notice of motion dated March 31, 2016, defendants moved for an Order pursuant to Fed.R.Civ.P. 12(b)(6) dismissing the Amended Complaint for failure to state a claim and because plaintiff failed to exhaust his administrative remedies (D.I. 24). (As further set forth in this Order.) Accordingly, for all the foregoing reasons, I respectfully recommend that plaintiff's Amended Complaint be dismissed. Objections to R&R due by 1/27/2017 (Signed by Magistrate Judge Henry B. Pitman on 1/13/2017) Copies Mailed By Chambers (cf)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------X
MICHAEL BOOKER,

:
Plaintiff,

THE CITY OF NEW YORK, et al.,
Defendants.

14 Civ. 9801 (PAC)(HBP)

:

-against-

:

REPORT AND
RECOMMENDATION

:
:

-----------------------------------X

PITMAN, United States Magistrate Judge:

TO THE HONORABLE PAUL A. CROTTY, United States District
Judge,

I.

Introduction

Plaintiff Michael Booker brings this action pro se
against the City of New York, Elizabeth Ehrlich, Aretha Singh and
David Terhune, alleging that he was denied employment with the
New York City Department of Parks and Recreation ("the Parks
Department") due to his prior criminal convictions in violation
of federal and state law (Amended Complaint, dated March 14, 2016
(Docket Item ("D.I.") 23) ("Am. Compl.")).1

1

Plaintiff's Amended Complaint and other submissions do not
include page numbers. Accordingly, citations to plaintiff's
submissions will refer to the relevant paragraph number or, where
(continued...)

By notice of motion dated March 31, 2016, defendants
moved for an Order pursuant to Fed.R.Civ.P. 12(b)(6) dismissing
the Amended Complaint for failure to state a claim and because
plaintiff failed to exhaust his administrative remedies (D.I.
24).

For the reasons set forth below, I respectfully recommend

that defendants' motion be granted.

II.

Facts

In the Amended Complaint,2 plaintiff alleges that on
August 27, 2013, plaintiff interviewed for and participated in an
orientation for an "on the job training program" with the Parks
Department (Am. Compl. ¶ 6).

Plaintiff alleges that, at that

time, he was a "recipient of public assistance and was referred
1

(...continued)
there is no paragraph number, to the page number assigned by the
Court's electronic filing system.
2

Plaintiff commenced this lawsuit in January 2014
(Complaint, dated Jan. 20, 2014 (D.I. 1)). On June 8, 2015, I
issued an Order to Show Cause stating that there was "serious
doubt as to whether plaintiff has stated a viable claim" and
provided plaintiff with copies of two decisions from the Court of
Appeals relevant to plaintiff's claims (Order to Show Cause,
dated June 8, 2015 (D.I. 17)). I ordered that, by July 20, 2015,
plaintiff either file an amended complaint that addressed the
apparent legal deficiencies in the original complaint or
otherwise show cause why the action should not be dismissed for
failure to state a claim. In response, plaintiff filed a letter
addressed to Judge Crotty, (Letter, dated July 20, 2015 (D.I. 21)
("Plaintiff's July 2015 Letter")), and subsequently filed the
Amended Complaint. Defendants' motion to dismiss the Amended
Complaint followed.
2

to The City via the Human Resource Administration" (Am. Compl. ¶
6).

As part of the application process, plaintiff disclosed and

provided official disposition records concerning his prior
criminal convictions (Am. Compl. ¶ 7).

Plaintiff alleges that he

has "multiple felony convictions in his record" (Am. Compl. ¶
16).
On September 4, 2013, the Parks Department notified
plaintiff by telephone that his application was rejected "due to
his criminal record" (Am. Compl. ¶ 8).

Plaintiff alleges that

defendants Elizabeth Ehrlich, Aretha Singh and David Terhune were
all "ranking members" of the Parks Department "at or during the
time of the violations of the plaintiffs' rights" (Am. Compl. ¶
5).3

Plaintiff wrote letters to each of these defendants

"appris[ing] them of the circumstances giving rise to the rejection of [his] employment application and of The City's obligation

3

On January 28, 2015, Judge Crotty dismissed the claims
against the individual defendants in their official capacities,
leaving the claims against these defendants in their individual
capacities (Order, dated Jan. 28, 2015 (D.I. 6)).
3

to comply with New York State Correction Law Article 23-A"4 (Am.
Compl. ¶ 9).
The Amended Complaint also alleges that on November 18,
2013, plaintiff "filed a Notice of Intent against the New York
City Parks and Recreation Department for illegal and unconstitu-

4

Article 23–A of the N.Y. Correction Law, entitled
"Licensure and Employment of Persons Previously Convicted of One
or More Criminal Offenses," prohibits the denial of employment
based upon prior criminal convictions unless certain criteria are
met. Section 752 provides in pertinent part:
No application for any license or employment, and no
employment or license held by an individual, to which
the provisions of this article are applicable, shall be
denied or acted upon adversely by reason of the
individual's having been previously convicted of one or
more criminal offenses, or by reason of a finding of
lack of 'good moral character' when such finding is
based upon the fact that the individual has previously
been convicted of one or more criminal offenses,
unless:
(1) there is a direct relationship between one or more
of the previous criminal offenses and the specific
license or employment sought or held by the individual;
or
(2) the issuance or continuation of the license or the
granting or continuation of the employment would
involve an unreasonable risk to property or to the
safety or welfare of specific individuals or the
general public.
N.Y. Correct. Law § 752. Section 753 of that article provides a
list of factors to be considered concerning an individual's prior
criminal conviction when making a determination pursuant to
Section 752. N.Y. Correct. Law § 753.
4

tional denial of the plaintiff's employment application" (Am.
Compl. ¶ 11).

The Amended Complaint goes on to state that

[t]his is a civil rights action in which the plaintiff
seeks relief for the defendants violations of his civil
rights secured by 42 U.S.C. 1983, 1985, and 2000(e),
and the Sixth, Eighth and Fourteenth Amendments of the
United States Constitution. The plaintiff also asserts
local Constitutional violations, protected by
Artic1e(s) One, Five and Six of the New York State
Constitution; to which the Court can exercise supplemental jurisdiction pursuant to 28 U.S.C. 1967.
(Am. Compl. ¶ 1).

In the Amended Complaint, plaintiff seeks as

relief, inter alia, money damages and the issuance of a "definite
statement as to the unconstitutionality of denying a citizen an
employment opportunity solely based on the existence of his
criminal record" (Am. Compl. at 3-4).

III.

Analysis

A.

General Pleading
Standard on a Motion to Dismiss

The general standards applicable to a motion to dismiss
pursuant to Rule 12(b)(6) are well-settled and require only brief
review:
The Supreme Court has established a two-step
process for determining whether a plaintiff has pled
sufficient facts to overcome a motion to dismiss. A
court must first ignore "mere conclusory statements" or
legal conclusions, which are not entitled to the presumption of truth. Ashcroft v. Iqbal, 556 U.S. 662,
678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing
5

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127
S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Then, assuming
the veracity of the remaining facts, "a complaint must
contain sufficient factual matter . . . to 'state a
claim [for] relief that is plausible on its face.'"
Id. (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955).
A claim is plausible "when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged." Id. (emphasis added). While this
plausibility standard is not "akin to a 'probability
requirement,'" it "asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955). Pleading
facts that are "'merely consistent with' a defendant's
liability" is insufficient. Id. (quoting Twombly, 550
U.S. at 557, 127 S.Ct. 1955).
Pungitore v. Barbera, 506 F. App'x 40, 42 (2d Cir. 2012) (summary
order) (alteration, ellipsis and emphasis in the original).
Further, where, as here, a plaintiff proceeds pro se,
the complaint must be liberally construed to raise the strongest
claims the allegations suggest.

Sykes v. Bank of Am., 723 F.3d

399, 403 (2d Cir. 2013) (per curiam); Tracy v. Freshwater, 623
F.3d 90, 100-02 (2d Cir. 2010) (observing that the "special
solicitude" afforded to pro se plaintiffs includes liberal
construction of papers, "relaxation of the limitations on the
amendment of pleadings," leniency in enforcing procedural rules
and "deliberate, continuing efforts to ensure that a pro se
litigant understands what is required of him").

6

B.

Application of these
Principles to the Amended Complaint

1.

Federal Claims

Plaintiff has asserted (1) a claim under Title VII of
the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., (2)
constitutional claims under 42 U.S.C. § 1983 and (3) related
conspiracy claims under 42 U.S.C. § 1985(3) as well as (4) a
claim under the Fifth Amendment and (5) a claim under the Eighth
Amendment.

As discussed below, the allegations in the Amended

Complaint fail to state a claim under any of these federal
statutory and constitutional provisions.

a.

Title VII Claim

Plaintiff's Title VII claims should be dismissed
because he has not alleged that he is a member of any class that
is protected under that statute.

Title VII prohibits discrimina-

tion on the basis of an individual's race, color, religion, sex,
pregnancy or national origin.

42 U.S.C. § 2000e-2(a)(1).

These

categories are known as "protected characteristics" or "protected
classes."

Vil. of Freeport v. Barrella, 814 F.3d 594, 606 (2d

Cir. 2016).

Plaintiff has not alleged that he is a member of any

7

of these categories or that he was discriminated against on the
basis of membership in a protected class under Title VII.
Title VII does not prohibit discrimination against
individuals with criminal records.

See Volpe v. Connecticut

Dep't of Mental Health and Addiction Services, 88 F. Supp. 3d 67,
72 (D. Conn. 2015) ("Status in groups outside of one of the named
protected classes, such as convicted felons, does not confer a
right of action under Title VII.") (citing cases); Brown v. Time
Warner Cable, 10 Civ. 8469 (PAC)(RLE), 2011 WL 4549625 at *2
(S.D.N.Y. Oct. 3, 2011) (Crotty, D.J.) (granting motion to
dismiss Title VII disparate treatment claim where plaintiff
alleged that defendants' discriminatory behavior was motivated by
their mistaken belief that plaintiff was a convicted felon);
Gillum v. Nassau Downs Reg'l Off Track Betting Corp., 357 F.
Supp. 2d 564, 569 (E.D.N.Y. 2005) (granting motion for summary
judgment on pro se Title VII claim because "the Plaintiff's
status as a convicted felon is not a protected class under Title
VII"); Robinson v. Fleetboston Fin., 01-CV-0103 NAM/DRH, 2005 WL
2387839 at *9 (N.D.N.Y. Sept. 28, 2005) ("Plaintiff's status as a
convicted felon is not protected under Title VII"); Harris v.
N.Y.C. Dept. of Homeless Services Eligibility Investigation Unit,
97 Civ. 0432 (SAS), 1998 WL 205334 at *5 (S.D.N.Y. Apr. 28, 1998)

8

(Scheindlin, D.J.) ("felons are not a Title VII protected
class"), aff'd, 181 F.3d 82 (2d Cir. 1999).
Thus, plaintiff's Title VII claim should be dismissed
because plaintiff has not has not alleged that he was discriminated against because he was a member of a class that is protected under that statute.5

b.

Claims Under 42 U.S.C. § 1983

i.

Due Process Claim

Plaintiff's claim under 42 U.S.C. § 1983 ("Section 1983
claim") for violation of the Due Process Clause of the Fourteenth
Amendment to the United States Constitution should be dismissed
because plaintiff has failed to allege that he was denied a
constitutionally protected property interest.

5

Because plaintiff has not alleged that he is part of a
protected class, it is not necessary to reach defendants'
argument that he failed to exhaust his administrative remedies
regarding his Title VII claims.
Further, to the extent plaintiff's Title VII claims are
asserted against the individually named defendants, these claims
should be dismissed on the independent ground that "individuals
are not subject to liability under Title VII." Sassaman v.
Gamache, 566 F.3d 307, 315–16 (2d Cir. 2009), quoting Patterson
v. Cnty. of Oneida, 375 F.3d 206, 221 (2d Cir. 2004)); see Lore
v. City of Syracuse, 670 F.3d 127, 168-69 (2d Cir. 2012);
Wrighten v. Glowski, 232 F.3d 119, 120 (2d Cir. 2000) (per
curiam).
9

The Fourteenth Amendment to the United States
Constitution provides that a State shall not "deprive
any person of life, liberty, or property, without due
process of law." Amdt. 14, § 1. In 42 U.S.C. § 1983,
Congress has created a federal cause of action for "the
deprivation of any rights, privileges, or immunities
secured by the Constitution and laws." . . .
The procedural component of the Due Process Clause
does not protect everything that might be described as
a "benefit": "To have a property interest in a benefit, a person clearly must have more than an abstract
need or desire" and "more than a unilateral expectation
of it. He must, instead, have a legitimate claim of
entitlement to it." Board of Regents of State Colleges
v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d
548 (1972). Such entitlements are, "'of course, . . .
not created by the Constitution. Rather, they are
created and their dimensions are defined by existing
rules or understandings that stem from an independent
source such as state law.'" Paul v. Davis, 424 U.S.
693, 709, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976)(quoting
Roth, supra, at 577, 92 S.Ct. 2701); see also Phillips
v. Washington Legal Foundation, 524 U.S. 156, 164, 118
S.Ct. 1925, 141 L.Ed.2d 174 (1998).
Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 755-56
(2005).

Although "a written or verbal communication guaranteeing

government employment may, in some circumstances, give rise to
such a property interest," Cancel v. N.Y.C. Human Res.
Admin./Dep't of Social Servs., 527 F. App'x 42, 44 (2d Cir. 2013)
(summary order), "there is no constitutionally protected property
interest in prospective government employment."

Abramson v.

Pataki, 278 F.3d 93, 100 (2d Cir. 2002); see also Crenshaw v.
City of New Haven, 652 F. App'x 58, 60 (2d Cir. 2016) (summary
order) (dismissing Section 1983 claim because plaintiff who
10

received "conditional offer" offer of employment from city fire
department was "no more than a prospective employee") (emphasis
in original).

Furthermore, although plaintiff relies heavily on

Article 23-A of the N.Y. Correction Law in his Amended Complaint,
the Court of Appeals has held that N.Y. Correction Law §§ 752 and
753 do not create a legally protected property interest in
employment.

Cancel v. N.Y.C. Human Res. Admin./Dep't of Social

Servs., supra, 527 F. App'x at 45 n.2 ("reject[ing plaintiff's]
argument that N.Y. Correct. Law §§ 752 and 753, which prohibits
denying employment on the basis of an applicant's criminal record
unless certain conditions are met, created a legally protected
property interest in" a position with New York City agency); see
also McMenemy v. City of Rochester, 241 F.3d 279, 288 (2d Cir.
2001) ("[T]he fact that state law creates a right to non-discriminatory consideration for a discretionary [appointment] does not
create a property interest").
Plaintiff did not have a property interest in prospective employment with defendants because he has not alleged that
he was offered and had accepted a position with the Parks Department.

Rather, plaintiff's application for employment was re-

jected after he "interviewed and participated in an orientation
for an on the job training program" (Am. Compl. ¶ 6).

Because

plaintiff has failed to allege that he had a constitutionally
11

protected property interest in employment at the Parks Department, plaintiff's Due Process claims should be dismissed.

ii.

Equal Protection Claim

It is not clear whether plaintiff intended to state a
Section 1983 claim for violation of the Equal Protection Clause
of the Fourteenth Amendment in the Amended Complaint nor have
defendants addressed the viability of such a claim in their
papers.

Plaintiff has asserted claims "under the equal protec-

tion clause of New York State[']s constitution" (Plaintiff's July
2015 Letter at 3-4; see also Am. Compl. ¶ 14).

Even if I con-

strue plaintiff's allegations as an attempt to assert an Equal
Protection claim under the United States Constitution, the claim
does not withstand a motion to dismiss.
Where an individual, like plaintiff here, does not
assert that he is a member of a "protected class," he may maintain an Equal Protection claim as a "class of one" only if he
alleges that he was intentionally treated differently from other
similarly-situated individuals without any rational basis.
Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000);
Clubside, Inc. v. Valentin, 468 F.3d 144, 158-559 (2d Cir. 2006);
Harlen Assoc. v. Inc. Village of Mineola, 273 F.3d 494, 499-500
(2d Cir. 2001).

However, the "class-of-one theory" is unavail12

able to individuals like plaintiff, who are asserting claims
based on an application for public employment.

See Engquist v.

Oregon Dep't of Agric., 553 U.S. 591, 607 (2008) (former Oregon
state employee could not state a Section 1983 Equal Protection
claim for discriminatory discharge because "the class-of-one
theory of equal protection has no application in the public
employment context"); Conyers v. Rossides, 558 F.3d 137, 151 (2d
Cir. 2009) (applying Engquist to find that prospective public
employee's "allegation that the TSA did not utilize 'uniform
personnel practices while evaluating . . . the initial fielding
of the screener workforce,' including in its evaluation of
[plaintiff's] own application . . . to be an airport screener"
did not state a "class-of-one" Equal Protection claim); Heusser
v. Hale, 777 F. Supp. 2d 366, 384 (D. Conn. 2011) (granting
motion to dismiss "class-of-one" Equal Protection claim by
prospective public employees because "Engquist applies equally to
hiring decisions").

Therefore, because "class-of-one" Equal

Protection claims are unavailable in the public employment
context, plaintiff cannot state a viable federal Equal Protection
claim.

13

c.

Claims Under 42 U.S.C. § 1985

Plaintiff's claim under 42 U.S.C. § 1985 ("Section 1985
claim") should be dismissed because, under the intracorporate
conspiracy doctrine, members of a single corporate entity cannot
conspire with one another.

Plaintiff's Section 1985 claim is

brought under subsection (3) of the statute because he has
asserted that the defendants conspired to deprive him of his
constitutional rights; plaintiff alleges that "[e]ach named
defendant was aware" that plaintiff's "criminal record . . . by
itself, does not warrant nor substantiate the denial of his job
application" and, thus, "each defendant conspired and engaged in
conspirational conduct which resulted in the plaintiff being
deprived of his Due Process rights" (Am. Compl. ¶ 10).
"To make out a § 1985(3) claim, the plaintiff must
allege a conspiracy between two or more persons."

Murphy v. City

of Stamford, 634 F. App'x 804, 805 (2d Cir. 2015) (summary
order).

"[B]y operation of the intracorporate conspiracy doc-

trine, the officers, agents, and employees of a single corporate
entity, each acting within the scope of his employment, are
legally incapable of conspiring together."

Weslowski v. Zugibe,

96 F. Supp. 3d 308, 322 (S.D.N.Y. 2015) (Karas, D.J.) (inner
quotation marks and citation omitted), aff'd, 626 F. App'x 20 (2d

14

Cir. 2015) (summary order); accord Murphy v. City of Stamford,
supra, 634 F. App'x at 805 (affirming dismissal of Section 1985
claims against employees of city of Stamford, Connecticut based
on intracorporate conspiracy doctrine); Hartline v. Gallo, 546
F.3d 95, 99 n.3 (2d Cir. 2008) (affirming dismissal of Section
1985 claim against police officers because "'[u]nder the
intracorporate conspiracy doctrine, officers, agents and employees of a single corporate entity are legally incapable of conspiring together'" (citation omitted; alteration in original));
Wright v. Area Supervisor Garfield Zeitler, 14 Civ. 9103 (PAC),
2015 WL 8484565 at *3 (S.D.N.Y. Dec. 9, 2015) (Crotty, D.J.)
(applying intracorporate conspiracy doctrine to dismiss Section
1985 conspiracy claims against parole officers)).
Here, the individual defendants are all employees of
the Parks Department.

Further, plaintiff has not asserted that

they acted outside of the scope of their employment when they
allegedly discriminated against him -- rather, plaintiff's only
allegations against the defendants is that he communicated with
each of them regarding the Parks' Department's rejection of
plaintiff's employment application (Pl. July 20, 2015 Letter at

15

2).

Therefore, plaintiff's Section 1985 claim should be dis-

missed pursuant to the intracorporate conspiracy doctrine.6

d.

Double Jeopardy

Plaintiff's claim that he was denied the constitutional
right to be free from double jeopardy when his employment application was rejected is without merit and should also be dismissed.
The Fifth Amendment to the United States Constitution
states in pertinent part that "nor shall any person be subject
for the same offense to be twice put in jeopardy of life or
limb[.]"

U.S. Const. Amdt. 5.

"The constitutional prohibition

against 'double jeopardy' was designed to protect an individual
from being subjected to the hazards of trial and possible conviction more than once for an alleged offense."

Green v. United

States, 355 U.S. 184, 187 (1957); see Burks v. United States, 437

6

Although defendants have not moved to dismiss plaintiff's
Section 1985 claim on any other basis, plaintiff's Section 1985
claim should also be dismissed for the same reason that his Due
Process claim should be dismissed. "Without an actual
deprivation of a constitutional right, Plaintif[f] may not
sustain a conspiracy claim [under 42 U.S.C. § 1985] on those
causes of action." Hardy v. Baird, 13 Civ. 7402 (NSR), 2016 WL
2745852 at *14 (S.D.N.Y. May 10, 2016) (Román, D.J.); see
Weslowski v. Zugibe, supra, 96 F. Supp. 3d at 322 ("because the
Court has already dismissed Plaintiff's § 1983 claims, his § 1985
claim based on a conspiracy to deprive Plaintiff of those rights
is also without merit.").
16

U.S. 1, 11 (1978) (same).

Although plaintiff's criminal record

was allegedly the basis for the Parks Department's decision not
to hire plaintiff, plaintiff was not subject to a second trial
and conviction when he applied for and was rejected for a position with the Parks Department.

Therefore, plaintiff's double

jeopardy claim should be dismissed.7

e.

Cruel and Unusual Punishment

Plaintiff has also failed to assert a viable claim for
violation of the right to be free from cruel and unusual punishment under the Eighth Amendment to the United States Constitution.

Plaintiff alleges that "[i]n essence, to deny the plain-

tiff a job that he basically [was] qualified for, because of what
is contained in his [criminal] background, without justification,
is indeed a cruel and unusual occurrence" (Am. Compl. ¶ 16).
Plaintiff also asserts that at the time of his application, he
was still on parole and that this is relevant to his Eighth

7

Plaintiff's Amended Complaint erroneously cites the Sixth
Amendment to the United States Constitution as support for his
double jeopardy claim. To the extent plaintiff is alleging that
he was denied rights guaranteed to him under the Sixth Amendment,
he has also failed to state a claim because the protections of
the Sixth Amendment apply only in criminal prosecutions. Eze v.
City Univ. of N.Y. at Brooklyn Coll., No. 11-CV-2454 (JG)(CLP),
2011 WL 6780652 at *3 n.4 (E.D.N.Y. Dec. 27, 2011). Plaintiff
was not accused of or prosecuted for any crime in connection with
his job application with the Parks Department.
17

Amendment claim (Pl. Aff. in Opp. to Def. Motion to Dismiss,
dated Apr. 15, 2016 (D.I. 31) at 6 ("the plaintiff can use this
status [as a parolee] as being 'under sentence' even though the
plaintiff was at liberty, to incorporate his 8th Amendment cruel
and unusual punishment claim against the defendant City").
The Eighth Amendment's prohibition against cruel and
unusual punishments applies only to the sentence that is imposed
in connection with a criminal conviction.
[T]he State does not acquire the power to punish with
which the Eighth Amendment is concerned until after it
has secured a formal adjudication of guilt in accordance with due process of law. Where the State seeks
to impose punishment without such an adjudication, the
pertinent constitutional guarantee is the Due Process
Clause of the Fourteenth Amendment.
Ingraham v. Wright, 430 U.S. 651, 671 n.40 (1977); Eze v. City
Univ. of N.Y. at Brooklyn Coll., supra, 2011 WL 6780652 at *3 n.4
("the Eighth Amendment applies only to punishments imposed in
connection with a criminal conviction").
There is no allegation in the record and no reason to
believe that plaintiff's inability to secure employment with the
Parks Department was part of his sentence; rather, it appears to
be what may be fairly characterized as a collateral consequence
of his criminal convictions.

Surprisingly, my research has found

no clear precedent addressing whether the Eighth Amendment's
prohibition against cruel and unusual punishment extends to a
18

conviction's collateral consequences.

The Eighth Amendment,

however, operates as a check on the sentence imposed on an
individual in a criminal proceeding, and the Parks Department did
not impose any sentence on plaintiff.

Accordingly, he has no

claim under the Eighth Amendment.

2.

State Law Claims

Although defendants have not specifically addressed
plaintiff's state law claims in their motion to dismiss, I
recommend mea sponte that the court decline to exercise supplemental jurisdiction over these claims and that they be dismissed
without prejudice.

Plaintiff has not alleged any independent

basis for federal jurisdiction over these claims; rather, plaintiff asserts that the court has supplemental jurisdiction over
his non-federal claims pursuant to 28 U.S.C. § 1367 (Am. Compl. ¶
1).

"[A] district court 'may decline to exercise supplemental

jurisdiction' if it 'has dismissed all claims over which it has
original jurisdiction.'"

Kolari v. N.Y.-Presbyterian Hosp., 455

F.3d 118, 122 (2d Cir. 2006), quoting 28 U.S.C. § 1367(c)(3).
"[I]n the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under
the pendent jurisdiction doctrine -- judicial economy, convenience, fairness, and comity -- will point toward declining to
19

exercise jurisdiction over the remaining state-law claims."
Carnegie–Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988);
see, e.g., Obot v. Bailey, 557 F. App'x 96, 96 (2d Cir. 2014)
(summary order) (affirming district court's "final judgment sua
sponte dismissing [pro se plaintiff's] 42 U.S.C. § 1983 complaint
and declining to exercise supplemental jurisdiction over his
state law claims"); Peterec-Tolino v. New York, 364 F. App'x 708,
711 (2d Cir. 2010) (summary order) (affirming district court's
sua sponte dismissal of pro se complaint and holding that
"[b]ecause all the federal claims were properly dismissed, the
district court did not abuse its discretion in declining to
exercise supplemental jurisdiction over Appellant's state law
claims").

Thus, because I recommend that all of plaintiff's

federal claims be dismissed, I further recommend that the court
decline to exercise supplemental jurisdiction over plaintiff's
state law claims and that they be dismissed.

IV.

Conclusion

Accordingly, for all the foregoing reasons, I respectfully recommend that plaintiff's Amended Complaint be dismissed.8

8

I am not unsympathetic to plaintiff's situation.
Rehabilitation is traditionally offered as one of the reasons
offenders are incarcerated, and an ex-offender's efforts to re(continued...)
20

V.

Objections

Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of
the Federal Rules of Civil Procedure, the parties shall have
fourteen (14) days from receipt of this Report to file written
objections.

See also Fed.R.Civ.P. 6(a).

Such objections (and

responses thereto) shall be filed with the Clerk of the Court,
with courtesy copies delivered to the Chambers of the Honorable
Paul A. Crotty, United States District Judge, 500 Pearl Street,
Room 1350, New York, New York 10007, and to the Chambers of the
undersigned, 500 Pearl Street, Room 1670, New York, New York
10007.

Any requests for an extension of time for filing objec-

tions must be directed to Judge Crotty.

FAILURE TO OBJECT WITHIN

FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL
PRECLUDE APPELLATE REVIEW.

Thomas v. Arn, 474 U.S. 140, 155

(1985); United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir.
1997); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054

8

(...continued)
enter society, obtain lawful employment and become a tax-paying
citizen should be encouraged and supported. An ex-offender's
unemployment can lead to nothing good. As noted in footnote 4,
New York State's laws provide some protection against
discrimination on the basis of an individual's criminal record,
and plaintiff may have a remedy in state court. A federal court
cannot, however, create rights that do not exist under federal
law.
21

i

00

(2d Cir.

57 59

(2d Cir.

( 2 d Ci r. 1 9 9 3 ) ; Frank v . J olh n son , 9 6 8 F . 2 d 2 9 8 ,
I

1992); Wesolek v. Canadair Ltd., 838 F.2d 55,
1988); McCarthy v. Manson,
(~

714 F.2d 234, 237-38

(2d Cir. 1983)

curiam).

Dated:

New York, New York
January 13, 2017
Respectfully submitted,

United State
Copies mailed to:
Mr. Michael Booker
464 Nostrand Ave.
Apt. #2B
Brooklyn, New York

11206

Copies transmitted to:
Ryan T. Mangum, Esq.
Assistant Corporation Counsel
City of New York
100 Church Street
New York, New York 10007

22

Magistrate Judge