Yunus v. Lewis-Robinson et al

Filing 103

OPINION & ORDER for 43 Motion for Preliminary Injunction filed by Equan Yunus, Sr., 79 Report and Recommendations 59 Motion to Dismiss filed by Granum, Smith, Yolanda Vazquez, J. Lewis-Robinson, D. Jones, Anthony Annucci. For the r easons given below, the Court adopts Judge Moses' recommendation and grants Plaintiff a preliminary injunction on his substantive due process claim. The Court also grants Defendants' motion to dismiss as to several of Plaintiff's cla ims, including all of his claims for damages, while denying it as to his substantive due process claim, his challenges to his conditions of parole limiting where he can travel, his ability to seek alternate residences, his access to social media, what technology he can own and use, and his ability to interact with minor members of his family. (As further set forth in this Order.) This resolves docket numbers 43 and 59. As this matter has been referred to Magistrate Judge Moses for general pretrial, Dkt. 15, by separate order Judge Moses may schedule a case management conference. (Signed by Judge Alison J. Nathan on 1/11/2019) (cf) (Main Document 103 replaced on 1/11/2019) (tro).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

Equan Yunus, Sr.,
Plaintiff,
l 7-cv-5839 (AJN)

-vOPINION & ORDER

J. Lewis Robinson et al.,
Defendants.

ALISON J. NATHAN, District Judge:
Since 2016, Plaintiff has been required to register as a sex offender and has been subject
to parole conditions designed to control the threat posed by sex offenders, including limitations
on where he can live and travel, what websites he can access and what technology he can
possess, and whether he can own a pet or rent a post office box. Plaintiff was even reincarcerated for several months for possessing a smartphone and laptop. Report &
Recommendation ("R & R"), Dkt. No. 79, at 61. Yet the record before the Court does not
indicate that Plaintiff has ever committed any sexual misconduct. Instead, Plaintiff pled guilty to
a crime-kidnapping of an unrelated minor under the age of 17-that automatically rendered
him a sex offender under New York's Sex Offender Registration Act ("SORA"), N.Y. Correct.
Law (CL) § 168-a. No evidence before the Court suggests that there was anything sexual about
Plaintiff's crime, but rather that it was carried out to ransom the victim in exchange for money
and drugs. At the state court hearing to determine his risk level classification as a sex offender,
the judge found that there was "virtually no likelihood that [Plaintiff] will commit a sex crime
ever." R & R at 10. Indeed, for the purposes of these two motions, Defendants have conceded
that there was no sexual element to Plaintiff's offense.

1

Plaintiff brought this action under 42 U.S.C. §1983, alleging that this situation violates
several of his constitutional rights. Plaintiff argues that being forced to register as a sex offender
violates his substantive and procedural due process rights, while a number of his specific
conditions of parole violate his rights under the Due Process Clause and the First Amendment.
Plaintiff sought a preliminary injunction on some of his claims, while Defendants moved to
dismiss his complaint in its entirety. These motions were referred to Magistrate Judge Moses for
a Report and Recommendation. Judge Moses recommended that the Court grant a preliminary
injunction on Plaintiffs claim that SORA, as applied to him, violates his right to substantive due
process. Judge Moses also recommended granting Defendants' motion to dismiss in part and
denying it in part.
For the reasons given below, the Court adopts Judge Moses' recommendation and grants
Plaintiff a preliminary injunction on his substantive due process claim. The Court also grants
Defendants' motion to dismiss as to several of Plaintiffs claims, including all of his claims for
damages, while denying it as to his substantive due process claim, his challenges to his
conditions of parole limiting where he can travel, his ability to seek alternate residences, his
access to social media, what technology he can own and use, and his ability to interact with
minor members of his family.

I.

Background
The Court assumes the parties' familiarity with the facts of this case and will rely on

Judge Moses's thorough discussion of the factual and procedural history of this case in her
Repo11 and Recommendation to the Court. See R & Rat 8-18. In sh011, Plaintiff pleaded guilty
in 2002 to two counts of kidnapping for ransom under New York law. R & R at 9. One of the
victims was a boy under seventeen years old who was not Plaintiffs child. R & Rat 9. Under
SORA, a conviction for kidnapping a minor who is not the kidnapper's child is designated as a
2

"sex offense." N.Y. Correct. Law§ 168-a(2)(a)(i). Plaintiff was classified a level one sex
offender-the lowest possible level-at a SORA hearing following his term of incarceration. R
& R at 10-11. However, there was no allegation of a sexual component to Plaintiff's crime and

he has never been accused of committing any form of sexual misconduct. R & Rat 9.
Furthermore, at his SORA hearing, the presiding judge-Justice Obus, who had also presided
over Plaintiff's sentencing in his underlying criminal case-found that there was virtually no
likelihood that Plaintiff would ever commit a sex crime. R & Rat 10. Plaintiff was released to
parole on July 14, 2016, and numerous parole conditions were imposed, some mandatory and
some discretionary. See R & R at 11-18 (outlining relevant parole conditions and modifications
that have been made over time to those conditions).
On August 1, 2017, Plaintiff commenced this action by filing a pro se complaint. Dkt.
No. 2. Following the appearance of pro bona counsel for Plaintiff, he filed a motion for a
preliminary injunction on March 26, 2018 and a Second Amended Complaint on March 29,
2018. See Mot. for PI, Dkt. No. 43; SAC, Dkt. No. 54. In his Second Amended Complaint,
Plaintiff challenges his designation as a sex offender on procedural due process and substantive
due process grounds. SAC~~ 139-51. He also challenges numerous specific conditions of his
parole, arguing that they are void for vagueness, SAC ~~ 152-5 8, violate his First Amendment
rights, SAC~~ 159-63, violate his due process right by interfering with his family relations, SAC
~~

164-69, and impose conditions that are arbitrary and capricious, SAC ~~ 170-75. The Court

referred the motion for a preliminary injunction to Magistrate Judge Barbara Moses for a Report
and Recommendation. Dkt. No. 51.
On April 17, 2018, the Defendants in this action filed a motion to dismiss the Second
Amended Complaint. Def. Mot. to Dismiss, Dkt. No. 59. The Comt referred consideration of

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this motion to Judge Moses as well. Dkt. No. 62. On June 29, 2018, Judge Moses filed her
Report recommending resolution of Plaintiffs motion for a preliminary injunction and
Defendants' motion to dismiss. See R & Rat 84-86. On July 20, 2018, both parties timely filed
their objections to the Report, Pl. R & R Obj., Dkt. No. 85; Def. R & R Obj., Dkt. No. 86, and
responded to one another's objections, Def. R & R Obj. Resp., Dkt. No. 93, Pl. R & R Obj.
Resp., Dkt. No. 94. After having reviewed Judge Moses's Report and the parties' objections, the
Cami requested supplemental briefing on (1) whether preclusion doctrines barred some of
Plaintiffs claims and (2) whether Defendants had waived any preclusion arguments by failing to
raise them in the first instance before Judge Moses. Dkt. No. 98. The parties provided briefing,
Def. Supp. Br., Dkt. No. 101; Pl. Supp. Br., Dkt. No. 102, and the Court held oral argument on
October 3, 2018.

II.

Legal Standards
A.

Review of Objections to a Magistrate Judge's Report

A comi may "designate a magistrate judge to conduct hearings, including evidentiary
hearings, and to submit to a judge of the court proposed findings of fact and recommendations
for the disposition" of certain motions, including motions for injunctive relief and motions to
dismiss. 28 U.S.C. § 636(b)(l)(B). A party to the action may file objections to the proposed
findings and recommendations. Id. § 636(b)(l)(C). Specific objections to a magistrate judge's
recommendation are reviewed de nova. See, e.g., Amadasu v. Ngai, No. 05-CV-2585(RRM),
2012 WL 3930386, at *3 (E.D.N.Y. Sept. 9, 2012). Where a party does not object, or simply
makes "conclusory or general objections," the district court will review for clear error. Id.
(citing cases). Under this standard, portions of the repo1i to which no objections were made will
be accepted unless they are "facially erroneous." B1yant v. New York State Dep 't of Corr.
Servs., 146 F.Supp.2d 422, 424-25 (S.D.N.Y.2001); see also DiPilato v. 7-Eleven, Inc., 662 F.

4

Supp. 2d 333, 339-40 (S.D.N.Y. 2009) ("A decision is 'clearly e1rnneous' when the Court is,
'upon review of the entire record, [ ] left with the definite and firm conviction that a mistake has
been committed.'" (alteration in original) (quoting United States v. Snow, 462 F.3d 55, 72 (2d
Cir.2006)).
B.

Preliminary Injunction Standard

"A preliminary injunction is an extraordinary remedy never awarded as of right." Winter
v. Nat. Res. Def Council, Inc., 555 U.S. 7, 24 (2008). A court may issue a preliminary

injunction only "upon a clear showing that the plaintiff is entitled to such relief." Id. at 22.
Ordinarily, a paiiy seeking a preliminary injunction must make one of two showings: First, he
may "show that he is likely to succeed on the merits; that he is likely to suffer irreparable harm
in the absence of preliminary relief; that the balance of equities tips in his favor; and that an
injunction is in the public interest." ACLUv. Clapper, 785 F.3d 787,825 (2d Cir. 2015).
Alternatively, he "may show irreparable harm and either a likelihood of success on the merits or
'sufficiently serious questions going to the merits to make them a fair ground for litigation and a
balance of hardships tipping decidedly toward the party requesting the preliminary relief."' Id.
(quoting Christian Louboutin SA. v. Yves Saint Laurent Am. Holdings, Inc., 696 F.3d 206, 215
(2d Cir. 2012)). However, if "the moving party seeks to stay government action taken in the
public interest pursuant to a statutory or regulatory scheme, the district court should not apply the
less rigorous fair-ground-for-litigation standard and should not grant the injunction unless the
moving party establishes, along with irreparable injury, a likelihood that he will succeed on the
merits of his claim." Able v. United States, 44 F.3d 128, 131 (2d Cir. 1995) (quoting Plaza
Health Labs., Inc. v. Perales, 878 F.2d 577, 580 (2d Cir. 1989)). When the moving party seeks a

mandatory injunction, "' [t]he moving party must make a clear or substantial showing of a

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likelihood of success' on the merits, a standard especially appropriate when a preliminary
injunction is sought against government." D.D. ex rel. VD. v. N. Y Ed. Of Educ., 465 F.3d 503,
510 (2d Cir. 2006) (alteration in original) (quoting Jolly v. Coughlin, 76 F.3d 468,473 (2d Cir.
1996)).
C.

Motion to Dismiss

A case is properly dismissed for lack of subject matter jurisdiction pursuant to Federal
Rule of Civil Procedure 12(b)(1) "when the district court lacks the statutory or constitutional
power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). "In
resolving a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b) (1), a
district court ... may refer to evidence outside the pleadings." Id. The party asserting subject
matter jurisdiction "has the burden of proving by a preponderance of the evidence that it exists."

Id. Jurisdiction "must be shown affirmatively, and that showing is not made by drawing from
the pleadings inferences favorable to the party asserting it." Shipping Fin. Servs. Corp. v.

Drakos, 140 F.3d 129, 131 (2d Cir. 1998).
To survive a motion to dismiss for failure to state a claim under Rule 12(b) (6), the
complaint must "state a claim to relief that is plausible on its face." Bell At!. Corp. v. Twombly,
550 U.S. 544, 570 (2007). A claim achieves "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). Plausibility is "not akin to a
'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted
unlawfully," id., and if plaintiffs cannot "nudge[] their claims across the line from conceivable to
plausible, their complaint must be dismissed," Twombly, 550 U.S. at 570. "Plausibility ...
depends on a host of considerations: the full factual picture presented by the complaint, the

6

particular cause of action and its elements, and the existence of alternative explanations so
obvious that they render plaintiffs inferences unreasonable." L-7 Designs, Inc. v. Old Navy,
LLC, 647 F.3d 419,430 (2d Cir. 2011). When considering a motion to dismiss under Rule

12(b)(6), "a court must accept as true all of the [factual] allegations contained in [the]
complaint." Iqbal, 556 U.S. at 678. However, the court should not accept legal conclusions as
true: "[t]hreadbare recitals of the elements of a cause of action, suppo1ied by mere conclusory
statements, do not suffice." Id.
D.

Qualified Immunity

Several of Plaintiffs claims seek money damages, all of which Defendants contend
should be dismissed on the grounds of qualified immunity. Def. Mot. to Dismiss, Dkt. No. 60, at
17-20. Because this issue arises at a number of points in the opinion, the Comi provides a
summary of the standard here.
Qualified immunity may be raised on a motion to dismiss under Rule 12(b)(6). However,
"a defendant presenting an immunity defense on a Rule l 2(b)( 6) motion instead of a motion for
summary judgment must accept the more stringent standard applicable to this procedural route."
McKenna v. Wright, 386 F.3d 432, 436 (2d Cir. 2004). In such cases, the facts supp01iing the

immunity defense must be plain on the face of the complaint and "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." Id.
The defense of qualified immunity "protects government officials from suit if 'their
conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known."' Gonzalez v. City of Schenectady, 728 F.3d 149, 154 (2d
Cir. 2013) (quoting Harlovv v. Fitzgerald, 457 U.S. 800, 818 (1982)). The qualified immunity

7

analysis asks whether (1) a plaintiff has sufficiently pled the violation of a constitutional or
statutory right, (2) whether that right was "clearly established," and (3) whether it was
"objectively reasonable" for the official to believe their conduct was lawful. Id. at 154-55 (citing

Taravella v. Town of Wolcott, 599 F.3d 129, 133-34 (2d Cir.2010)). A right may be clearly
established by either controlling authority or "a robust consensus of cases of persuasive
authority." Ashcroft v. al-Kidd, 563 U.S. 731, 741-42 (2011) (internal quotation marks omitted)
(quoting Wilson v. Layne, 526 U.S. 603, 617 (1999)). The applicable legal rule at issue should
not be defined "at a high level of generality," but rather must be "paiiicularized to the facts of the
case." White v. Pauly, 137 S. Ct. 548, 551-52 (2017) (internal quotation marks omitted). It is
not necessary that "the very action in question" have been previously held unlawful, as "an
officer might lose qualified immunity even if there is no reported case 'directly on point."'

Ziglar v. Abbasi, 137 S. Ct. 1843, 1866-67 (2017). On the other hand, "in the light of preexisting law, the unlawfulness of the officer's conduct must be apparent." Id at 1867 (internal
quotation marks omitted).
As to the reasonableness inquiry, this turns on whether the official could have reasonably
believed that their actions were legal given the law at the time of the actions in question. Berg v.

Kelly, 897 F.3d 99, 109 (2d Cir. 2018). Objective reasonableness is a mixed question oflaw and
fact, which "requires examination of the information possessed by the officials at that time
(without consideration of subjective intent)." Id. at 109-10. The operative question is "whether
a reasonable official would reasonably believe that his conduct did not violate a clearly
established right[.]" Id.

III.

Judge Moses's Report and Recommendation
As a threshold matter, Judge Moses's Report addresses Defendants' arguments that

Plaintiff's due process challenges are barred by the Rooker-Feldman doctrine, recommending
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that this case did not meet the narrow conditions for the doctrine to apply. Turning to the merits
of the motion to dismiss, the Report recommends granting the motion to dismiss with respect to
the following claims:
The First Claim, in its entirety;
The Third Claim, to the extent it alleges that Special Condition No. 24 (the
"consenting adult" rule) is void for vagueness;
The Third Claim, to the extent it seeks damages against any of the Parole
Officer Defendants 1 for their past enforcement of any of the parole conditions
challenged as void for vagueness;
The Fourth Claim, to the extent it seeks damages against the Parole Officer
Defendants other than PO Lewis-Robinson for their past enforcement of the
cellphone, computer, and social media restrictions contained in Special Conditions
No. 12, 22, 35, 39, and 48;
The Fourth Claim, to the extent it seeks damages against PO LewisRobinson arising from her conduct prior to the decision in Packingham;
The Fifth Claim, to the extent it seeks damages against the Parole Officer
Defendants other than PO Lewis-Robinson for their past enforcement of Special
Condition No. 15 (no contact with minors);
The Sixth Claim, to the extent it seeks damages against any of the Parole
Officer Defendants for their past conduct in denying plaintiffs' requests to move in
with his fiancee and his uncle;
The Sixth Claim, to the extent it seeks damages against the Parole Officer
Defendants other than PO Lewis-Robinson in connection with the denial of
Plaintiffs request to move in with Ms. Blake;
The Sixth Claim, to the extent it seeks damages against any of the Parole
Officer Defendants for their past enforcement of Special Condition No. 24;
The Sixth Claim, to the extent it seeks either damages or injunctive relief in
connection with Special Conditions No. 31 and 32 (motor vehicles), No. 14
(sexually explicit materials), No. 19 (pets) or No. 37 (Post Office boxes).
R & Rat 84. The Report recommends denying Defendants' motion to dismiss as to the
remaining claims. The Report also recommends that the Court grant Plaintiffs request for a
preliminary injunction in part. R & Rat 85. It concludes that Plaintiffs designation as a sex
offender violates his substantive due process rights and therefore recommends that the Court
enjoin Defendants from "enforcing, as against plaintiff, the registration and notification
provisions made applicable to designated sex offenders by SORA (CL§§ 168a-168w), or the

1

The Court adopts the term "Parole Officer Defendants" employed by Judge Moses' Repmt. R & Rat 8.

9

mandatory conditions prescribed by EL§§ 259-c(14) and (15) for parolees sentenced for an
offense for which registration as a sex offender is required," and directing Defendants "to rescind
the discretionary provisions of the Sex Offender Conditions (Yunus Deel. Ex. C, at ECF pages 410) except to the extent they deem those conditions appropriate for plaintiff in light of his nonsexual criminal history and characteristics." R & Rat 85. Alternatively, Judge Moses
recommends that if the Court does not grant a preliminary injunction on Plaintiffs substantive
due process claim, it should grant a preliminary injunction as to several of his parole conditions.
R & Rat 85-86.
IV. Discussion

The Court first addresses Defendants' claims that the Rooker-Feldman doctrine deprives
it of subject-matter jurisdiction. The Comi will then examine the issue of preclusion, which was
only raised by Defendants after Judge Moses's Report, and the related question of waiver. The
Comi will then turn to the merits of Defendants' motion to dismiss and Plaintiffs motion for a
preliminary injunction, addressing each in turn.
A.

Plaintiff's First and Second Claims Are Not Barred by the Rooker-Feldman
Doctrine

Defendants argue that Plaintiffs first and second claims, which challenge his designation
as a sex offender on procedural due process and substantive due process grounds, are barred by
the Rooker-Feldman doctrine. The Rooker-Feldman doctrine bars "cases brought by state-court
losers complaining of injuries caused by state-court judgments rendered before the district comi
proceedings commenced and inviting district court review and rejection of those judgments."
Exxon Mobil Corp. v. Saudi Basic Indus. C01p., 544 U.S. 280, 284 (2005). This doctrine
deprives federal courts of subject-matter jurisdiction to hear cases "that are, in substance, appeals

10

from state court judgments[.]" Hoblockv. Albany Cty. Bd. of Elections, 422 F.3d 77, 84 (2d Cir.
2005). For the Rooker-Feldman doctrine to apply, four conditions must be met:
First, the federal-court plaintiff must have lost in state comi. Second, the plaintiff
must "complain[ ] of injuries caused by [a] state-court judgment[.]" Third, the
plaintiff must "invit[e] district court review and rejection of [that] judgment[]."
Fourth, the state-court judgment must have been "rendered before the district court
proceedings commenced" - i.e., Rooker-Feldman has no application to federal
court suits proceeding in parallel with ongoing state-court litigation.
Id. at 85 (alterations in original) (footnote omitted) (quoting Exxon-Mobil, 544 U.S. at 284).

The Repo1i recommends that the Rooker-Feldman doctrine does not deprive the Court of
subject-matter jurisdiction here, both because Plaintiff did not lose in state court and because the
injuries he complains ofresulted from the SORA statute rather than a state court judgment. R &
Rat 22-25. Defendants raise several objections, which the Court reviews de nova.
First, Defendants object that Plaintiff's SORA hearing did address whether it was
constitutional to require Plaintiff to register as a sex offender. Def. R & R Obj. at 6-7. Yet it is
clear from the surrounding context that the section of the hearing transcript they cite to only
addresses what level of classification should apply to Plaintiff and does not challenge that SORA
as applied to him is unconstitutional. SORA Tr. 5: 12-22. The Court agrees with the Repmi that
SORA's constitutionality was neither challenged nor decided at the hearing.
Defendants next object that Rooker-Feldman bars any claim asserting injury based on a
state judgment even if the injury was not actually contested in state-court proceedings. Def. R &
R Obj. at 7-8. Yet the relevant inquiry for the purpose of Rooker-Feldman is whether the
judicial decision at Plaintiff's SORA hearing itself caused Plaintiff's injury; if an injury was
caused prior to the state judicial action, Rooker-Feldman is inapplicable. See Sung Cho v. City of
New York, 910 F.3d 639,649 (2d Cir. 2018). Indeed, it is settled law that Rooker-Feldman does

not apply if the judicial determination in question "simply ratified, acquiesced in, or left
11

unpunished" Plaintiff's injury. McKithen v. Brown, 481 F.3d 89, 97-98 (2d Cir. 2007) (quoting

Hoblock, 422 F.3d at 88). Here, Plaintiff's injury did not result from his SORA hearing, but
rather from the statute itself. See Spiteri v. Russo, No. 12-cv-2780 (MKB) (RLM), 2013 WL
4806960, at *13 (E.D.N.Y. Sept. 7, 2013) (holding Rooker-Feldman inapplicable to a claim
challenging the plaintiff's designation as a sex offender because "[t]he issue before [the
presiding judge] was Plaintiff's risk level classification, not whether he was required to register
as a sex offender"). Defendants' argument that Plaintiff's injuries were caused by the hearing
because SORA does not make a convicted individual's sex-offender status automatic is belied by
the plain text of the statute. See N.Y. Correct. Law§ 168-a(l) (defining "sex offender" as "any
person who is convicted of any of the offenses" listed in the statute), id § 168-d(l)(a) (requiring
that "upon conviction of any of the offenses set forth" in SORA, "the court shall certify that the
person is a sex offender" and failure to certify "shall not relieve a sex offender of the obligations
imposed by this article"); id. § 168-1(8) ("A failure by a state or local agency or the board to act
or by a court to render a determination within the time period specified in this article shall not
affect the obligation of the sex offender to register .... "); id. § 16 8-n(2) (providing that the
SORA hearing will determine the risk level of the offender); see also R & Rat 4-5 & 5 n.5, 23
(discussing SORA's statutory requirements in greater depth). Defendants accuse Judge Moses of
"misread[ing]" New York Corrections Law section 168-1(8). Def. R & R Obj. at 8. In their
view, that section only "provides ... that a failure of the SORA hearing comi to render a
decision 'within the time periods specified in this article' does not preclude a later determination
by the comi that registration is required." Def. R & R Obj. at 8. Defendants have apparently
overlooked that section 168-1(8) includes both the provision identified by Judge Moses and
quoted by the Court above and a separate clause allowing a comi to later impose a risk level to

12

an offender outside of the prescribed time period. 2 The Court therefore concludes that Plaintiffs
sex offender status was automatic under SORA as a function of his conviction.
Seeking to undermine this conclusion, Defendants also point to the fact that New York
courts have been willing to ente1iain constitutional challenges to SORA that were initially raised
in SORA hearings. Def. R & R Obj. at 8 (citing People v. Knox, 12 N.Y.3d 60, 65 (N.Y. 2009)).
But this does not alter the Rooker-Feldman analysis. Even if a state court may have been willing
to consider a constitutional challenge to Plaintiffs designation as a sex offender on appeal from
his SORA hearing, it does not change the fact that Plaintiffs sex offender status was already
imposed by statute. At most then, the judicial determination in his SORA hearing "simply
ratified," McKithen, 481 F .3d at 97-98, what SORA dictated-that Plaintiff be designated a sex
offender because of his conviction for kidnapping a minor not related to him. As a result,
Plaintiff challenges New York's SORA legislation rather than an adjudication, and in such
circumstances, Rooker-Feldman has no application. Hachamovitch v. DeBuono, 159 F.3d 687,
694 (2d Cir. 1998).
Finally, Defendants argue that if Plaintiff is not challenging injury caused by his SORA
hearing, he must be challenging his underlying conviction, which would also be barred by the
Rooker-Feldman doctrine. Def. R & R Obj. at 9. However, the Court agrees with the Repmi
that Plaintiff is neither challenging his underlying conviction nor asking the Court to relieve him
of it-he only seeks review of a statutorily-imposed collateral consequence that even Defendants
do not contend could have been raised on direct appeal from that conviction. R & R at 25 n.19.

2

Section 168-1(8) states in relevant part: "A failure by a state or local agency or the board to act or by a
court to render a determination within the time period specified in this article shall not affect the obligation of the
sex offender to register or verify under this article nor shall such failure prevent a court fi'om making a
determination regarding the sex offender's level of notification and whether such offender is required by law to be
registered for a period of twenty years or for life." N.Y. Correct. Law§ 168-/(8) (emphasis added).

13

For the forgoing reasons, the Defendants' objections to the Report are denied as to
subject-matter jurisdiction, and the Report is ADOPTED in full on this issue.

B.

Defendants Waived Their Res Judicata and Collateral Estoppel Arguments
for the Purposes of These Motions

Moving from Rooker-Feldman to preclusion, Defendants argue that Plaintiff's first and
second claims are precluded by the prior decision in the SORA hearing under theories of both
collateral estoppel and res judicata. Defendants did not raise either argument in their briefings
before Judge Moses. Judge Moses, in her Report, addressed the distinction between Rooker-

Feldman and preclusion doctrine in a footnote, without making a recommendation either way as
to the applicability of preclusion doctrine to Plaintiff's claims. R & Rat 24 n. 18. Defendants,
in their objections to the Rep01i, mentioned res judicata only in passing, stating that Plaintiff's
claims "should still be dismissed on the alternative grounds ofres judicata suggested in the R &
R." Def. R & R Obj. at 9. Subsequently, the Court requested supplemental briefing on
preclusion and whether Defendants had waived these arguments by failing to raise them before
Judge Moses.
Defendants do not dispute that they failed to raise their collateral estoppel or res judicata
arguments before Judge Moses. Instead, they argue that despite this failure-and their
conclusory treatment of preclusion in their objections to Judge Moses' Report-these arguments
have not been waived. Plaintiff, on the other hand, argues that Defendants waived these
arguments by not raising them earlier and failing to object to Judge Moses' mention of
preclusion with sufficient particularity. For the purposes of the instant motions alone, the Cami
agrees with Plaintiff. However, this decision does not bar Defendants from raising preclusion in
an answer.

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Courts in this circuit have taken different positions as to whether failure to raise an
argument before a magistrate judge waives those arguments. The Second Circuit has yet to
decide this question. Levy v. Young Adult Inst., Inc., 103 F. Supp. 3d 426,433 (S.D.N.Y. 2015)
("The question 'whether a party may raise a new legal argument for the first time in objections to
a magistrate judge's Report has not yet been decided in this Circuit."' (internal brackets and
ellipses omitted) (quoting Amadasu, 2012 WL 3930386, at *5).
For reasons it continues to find persuasive, this Court has previously found that, as a
general matter, arguments made for the first time in objection are waived. See Tara/av. Artus,
No. 10 CIV. 3870 (AJN), 2013 WL 3789089, at *2 (S.D.N.Y. July 18, 2013) ("[N]ew arguments
and factual assertions cannot properly be raised for the first time in objections to the R & R, and
indeed may not be deemed objections at all." (citing cases)); Watson v. Geithner, No. 11 CIV.
9527 (AJN), 2013 WL 5441748, at *2 (S.D.N.Y. Sept. 27, 2013) (noting that "a party waives any
arguments not presented to the magistrate judge"). Other courts in this circuit have taken a
similar approach, noting that "[i]f the Court were to consider formally these untimely
contentions, it would unduly undermine the authority of the Magistrate Judge by allowing
litigants the option of waiting until a Report is issued to advance additional arguments." Abu-

Nassar v. Elders Futures, Inc., No. 88 CIV. 7906 (PKL), 1994 WL 445638, at *4 n.2 (S.D.N.Y.
Aug. 17, 1994); see also Smith v. Hulihan, No. 11 CV 2948 (HB), 2012 WL 4928904, at* 1
(S.D.N.Y. Oct. 17, 2012); Rosello v. Barnhart, No. 02 CIV. 4629 (RMB), 2004 WL 2366177, at
*3 (S.D.N.Y. Oct. 20, 2004); Lewyckyj v. Colvin, No. 3:13-CV-126 (MAD), 2014 WL 3534551,
at *2 (N.D.N.Y. July 17, 2014). This is consistent with the history and purposes of the
Magistrate Act. See Anna Ready Mix, Inc. v. NE. Pierson Const. Co., 747 F. Supp. 1299, 1303
(S.D. Ill. 1990) (reviewing "the legislative history of the 1976 amendments to the United States

15

Magistrate Act, applicable precedent, and the views of commentators" and concluding that
"arguments raised for the first time in objections to a magistrate's report ought to be disregarded
absent compelling reasons"). This position is also consistent with the majority of circuit courts
to have examined this issue-though some have indicated that district courts have discretion in
the matter. 3 In a case like this, it would undermine the efficiencies offered by the Magistrate Act
to permit parties to raise arguments after a full briefing on both a motion for a preliminary
injunction and a motion to dismiss, after which Judge Moses issued a detailed and thorough 86page Report.
However, the Court need not rely on that reasoning to reach its conclusion here today,
since an application of the balancing test adopted by other courts in this circuit would result in
the same outcome. See Wells Fargo Bank NA. v. Sinnot, 2010 WL 297830, at *3-4 (D. Vt.
Jan.19, 2010); Levy, 103 F. Supp. 3d at 433-34. Defendants have not given any reason for their
failure to raise these issues before Judge Moses and no intervening change in law has occurred.
Unanswered questions remain that received little to no briefing. See Wells Fargo, 2010 WL
297830, at *4. Allowing Defendants to raise this new defense after several rounds of briefing in
which they neglected to raise it except for a passing mention would, for the reasons given above,
be an inefficient deviation from the purpose of the Magistrate Act. And given the ongoing harm
to Plaintiff, fairness favors providing a prompt determination of his motion for a preliminary

3

See, e.g., Marshall v. Chat er, 75 F.3d 1421, 1426 (I 0th Cir.1996) ("Issues raised for the first time in
objections to the magistrate judge's recommendation are deemed waived."); Cupit v. Whitley, 28 F.3d 532, 535 & n.
5 (5th Cir.1994) (holding that a party had waived arguments that were only raised after the magistrate judge had
issued their Report); Paterson-Leitch Co. v. Massachusetts Municipal Wholesale Electric Co., 840 F.2d 985, 99091 (1st Cir.1988) ("[ A]n unsuccessful party is not entitled as of right to de nova review by the judge of an argument
never seasonably raised before the magistrate."); Greenhaw v. Sec)' of Health & Human Servs., 863 F.2d 633, 638
(9th Cir.1988) ("[A ]II owing parties to litigate fully their case before the magistrate and, if unsuccessful, to change
their strategy and present a different theory to the district court would frustrate the purpose of the Magistrates Act.
We do not believe that the Magistrates Act was intended to give litigants an opportunity to run one version of their
case past the magistrate, then another past the district court."), overruled on other grounds by United States v.
Hardesty, 977 F.2d 1347, 1348 (9th Cir.1992) (en bane).

16

injunction without allowing Defendants to interpose new arguments that would result in further
delay. Finally, no manifest injustice would result from deeming Defendants' arguments waived
for the purposes of these motions. Considering and balancing these factors, the Comi concludes
that Defendants have waived preclusion. See Amadasu, 2012 WL 3930386, at *5-7. However,
the Court only finds that Defendants have waived these arguments for the purposes of these
motions and are free to raise them in an answer as affirmative defenses. See Blonder-Tongue
Labs., Inc. v. Univ. of Illinois Found., 402 U.S. 313, 350 (1971) (res judicata and collateral
estoppel are affirmative defenses) (citing Fed. Rules Civ. Pro. 8(c)).

C.

Defendants' Motion to Dismiss is Granted in Part and Denied in Part

Having addressed these threshold matters, the Comi turns first to Defendants' motion to
dismiss.
1. Defendants' Motion to Dismiss is Granted as to Plaintiff's Procedural
Due Process Claim (Claim 1)

Plaintiff alleges that he was deprived of constitutionally-required procedural due process
because he had no opportunity to challenge his designation as a "sex offender" in an adversarial
proceeding. SAC~~ 139-45. Judge Moses agreed with Plaintiff that he had a cognizable libe1iy
interest in not being labelled as a sex offender. R & Rat 29-35. However, Judge Moses found
that under governing Supreme Court and Second Circuit precedent, a person who has been
convicted of an offense requiring registration under SORA is not entitled to any additional
hearing, either ex ante or ex post, to adjudicate his obligation to register. R & Rat 35-38 (citing
Connecticut Dep 't of Pub. Safety v. Doe, 538 U.S. 1 (2003) and Doe v. Cuomo, 755 F.3d 105 (2d
Cir. 2014)). Plaintiff objects only to Judge Moses's recommendation on this claim as an
"alternative basis for relief' and notes that if the Court agrees with the Report that SORA as
applied to Plaintiff is a substantive due process violation, "no additional process or injunctive
17

relief is necessary." Pl. R & R Op. at 3. Nonetheless, as Plaintiff does state various specific
legal objections to Judge Moses's reasoning, the Comi will review it de nova. Defendants, for
their part, challenge Judge Moses' determination that Plaintiff had a procedural liberty interest in
not being labeled a sex offender. Def. R & R Obj. at 9-10. However, since that issue is
unnecessary to the Court's resolution of this claim, the Court neither adopts nor rejects Judge
Moses' Rep01t on that pa1ticular question.
The Court agrees with Judge Moses' reading of the governing precedent. Under
Connecticut v. Doe, "[p]laintiffs who assert a right to a hearing under the Due Process Clause
must show that the facts they seek to establish in that hearing are relevant under the statutory
scheme." 538 U.S. at 8 (emphasis added); see also Doe v. Cuomo, 755 F.3d at 112. Plaintiff
sought to distinguish these two cases on the grounds that in both the plaintiffs had been
convicted of sexual misconduct. Pl. R & R Obj. at 7-8. However, as Judge Moses determined in
her Report, this argument fails to go to the procedural sufficiency of process afforded, as that
fact is not relevant under SORA. Instead, it implicates a substantive challenge to Plaintiffs
designation under the law as a sex offender. R & Rat 37-38. As a result, Plaintiffs claim "must
ultimately be analyzed in terms of substantive, not procedural, due process." Connecticut v. Doe,
538 U.S. at 8 (internal quotation marks omitted). The Court therefore ADOPTS Judge Moses'
Rep01t as to the second prong of the procedural Due Process analysis and GRANTS Defendants'
motion to dismiss this claim. As it is unnecessary for resolution, the Court makes no finding
with respect to the Report's analysis of Plaintiffs procedural libe1iy interest.

2. Defendants' Motion to Dismiss is Denied as to Plaintifrs Substantive Due
Process Claim (Claim 2)
Plaintiffs second claim asserts that requiring him to register as a sex offender is a
violation of his right to substantive due process. "To establish a substantive due process
18

violation, a plaintiff must show both (1) that she has an interest protected by the Fourteenth
Amendment, and (2) that the statute, ordinance, or regulation in question is not rationally related
to a legitimate government interest." Winston v. City of Syracuse, 887 F.3d 553, 566 (2d Cir.
2018). Rational basis review "is highly deferential," but "it is not meant to be toothless." Id. at
560 (quoting Windsor v. United States, 699 F.3d 169, 180 (2d Cir. 2012), aff'd, 570 U.S. 744
(2013)). Even under the rational basis test, a state may not "rely on a classification whose
relationship to an asserted goal is so attenuated as to render the distinction arbitrary or
irrational." City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432,446 (1985). 4 When
considering whether a state had a rational basis to impose a statute, the reviewing comi may
properly consider the "countervailing costs" to the targets of the challenged statute. Plyler v.

Doe, 457 U.S. 202, 223-24 (1982).
In her Report, Judge Moses concludes that designating Plaintiff as a sex offender bears
no rational relationship to the purposes of SORA. Reviewing the enabling legislation, Judge
Moses identifies the purpose of SORA as "to combat 'the danger of recidivism posed by sex

offenders, especially those sexually violent offenders who commit predatory acts characterized
by repetitive and compulsive behavior,' and to assist the criminal justice system 'to identify,
investigate, apprehend and prosecute sex offenders.'" R & R at 40 (emphasis added in Report)
(quoting 1995 N.Y. Sess. Laws ch. 192, § 1). As a result, Judge Moses concludes that applying
the label of sex offender to the narrow class of individuals like Plaintiff who "has received a

4

While Cleburne and Plyler involved Equal Protection Clause challenges, the Second Circuit has
analogized between rational basis review in the equal protection and substantive due process contexts. See Winston,
887 F.3d at 562-67 (relying on its determination that a law lacked a rational basis in its analysis of an equal
protection claim to find that the law also failed substantive due process review); Sensational Smiles, LLC v. Mullen,
793 F.3d 281,284 (2d Cir. 2015) (analyzing equal protection and substantive due process claims jointly under
rational basis review).

19

judicial finding that he never has and near ce1iainly never will commit a sexual offense" bears no
rational relationship to that purpose. R & Rat 42-46.
Defendants object to the Report on several grounds. They argue that designating Plaintiff
as a sex offender could be rationally based on: (i) preventing dangerous sex offenders from
slipping through the cracks, (ii) avoiding administrative costs, and (iii) protecting minors from
harm more generally, not just sexual abuse. None of these arguments are persuasive.
As an initial matter, Defendants do not argue in their objections that Plaintiff has no

substantive liberty interest. Def. R & R Obj. at 10-12. To the contrary, Defendants emphasize
that Judge Moses erred by finding a procedural libe1iy interest, rather than a substantive one. Id.
at 10. The Court finds no clear error in the conclusion that Plaintiff has a substantive libe1iy
interest in not being labeled a sex offender when he has committed no sexual offense. See Vega

v. Lantz, 596 F.3d 77, 81-82 (2d Cir. 2010) ("[W]rongly classifying an inmate as a sex offender
may have a stigmatizing effect which implicates a constitutional liberty interest.").
Defendants first object that the Legislature could have rationally concluded that the sex
offender label should be applied in a blanket manner to various crimes involving minors, even
when a sexual element is not evident, to avoid any dangerous sex offenders "slipping through the
cracks." Def. R & R Obj. at 11-12; Def. Mot. to Dismiss at 9-10; see also People v. Knox, 12
N.Y.3d 60, 69 (2009) (finding that, along with administrative burden, "the risk that some
dangerous sex offenders would escape registration" provided a rational basis for "a hard and fast
rule, with no exceptions"). It is true that there may be cases, such as when the victim cannot or
will not testify, when it will be administratively difficult in practice to prove that an offense was
sexual in nature. As a result, it would not necessarily be irrational for the Legislature to

20

conclude that for certain high-risk crimes toward minors, individuals should be designated as sex
offenders even when it is ambiguous whether their specific offense was sexual.
Yet even assuming it would be rational for the Legislature to designate individuals as sex
offenders when there is uncertainty about whether their offense was sexual in nature, this does
not satisfactorily answer Plaintiffs as-applied challenge. Plaintiff does not challenge that SORA
is facially unconstitutional, nor even that it is unconstitutional as applied to all individuals who
kidnapped unrelated minors. R & Rat 42. Instead, the exceptionally narrow question before the
Court for the purposes of these motions is whether there is a rational basis for designating
someone as a sex offender solely in virtue of an offense that was undisputedly non-sexual. A
case involving any suggestion or allegation of sexual misconduct-or even just ambiguitywould present a different question that need not be resolved here.
At this stage in the litigation, the lack of a sexual element to Plaintiffs offense can safely
be termed conclusive. Based partly on the absence of any allegation of sexual abuse in this case,
Justice Obus concluded at Plaintiffs SORA hearing that "I am satisfied that there is virtually no
likelihood that [Plaintiff] will commit a sex crime ever." R & Rat 10. Justice Obus' conclusion
is paiiicularly persuasive, as he was "very familiar" with Plaintiff, having conducted the trial of
Plaintiffs co-defendant and accepted Plaintiffs plea in the underlying criminal case. SORA Tr.,
Dkt. No. 45-1, 20:8-12. Defendants do not contest Justice Obus' conclusion. Even more
importantly, Defendants conceded for the purposes of these combined motions that there was no
sexual component to Plaintiffs offenses. 10/03/18 Hearing Tr. 25:22-25, 26:1-18 (Plaintiffs
counsel presenting as undisputed that Plaintiffs offenses had nothing to do with sex); 32:5-11,
14-17 (Defendants' counsel conceding this for the purposes of this motion). It is on the basis of
this factual record and these representations that Plaintiffs claim must be evaluated. The Court

21

is careful to note, however, that Defendants only conceded the absence of a sexual element for
the purposes of these motions. Fmiher argument, allegations, or evidence could present a
meaningfully different issue. As a result, the risk that Plaintiff is a dangerous sex offender who
might slip through the cracks is not just low, it is, at this stage, non-existent.
The slipping-through-the-cracks argument is therefore insufficient to provide a rational
basis for imposing extensive civil and stigmatizing burdens on Plaintiff. R & Rat 42-45. To
reach this conclusion, the Court need not declare it irrational for the Legislature to weigh the
harms and conclude that for individuals who committed high-risk crimes that may have had a
sexual component, the public good is better served by a blanket rule. But extending the sex
offender designation to individuals for whom the absence of a sexual element is undisputed and
who have been adjudicated by a state comi to pose essentially no sexual risk cannot be justified
as a means of protecting against sex offenders falling through the cracks. See City of Cleburne,
473 U.S. at 446 (even under rational basis review, a comi will strike down "a classification
whose relationship to an asse1ied goal is so attenuated as to render the distinction arbitrary or
irrational."). Indeed, as various state comis have concluded when the lack of a sexual element
to the underlying offense was stipulated, "[a]lthough the Legislature's concern for protecting our
children from sexual predators may be reasonable ... the application of this statute to a
defendant whom the State concedes did not commit a sexual offense is not." State v. Robinson,
873 So. 2d 1205, 1215 (Fla. 2004) (emphasis added); see also State v. Reine, 2003-Ohio-50,

~

28, cause dismissed, 795 N.E.2d 686 (designating an individual as a sex offender "in a case in
which it has been stipulated that his offenses were committed without any sexual motivation or
purpose" lacks rational basis (emphasis added)). There is no more reason to classify Plaintiff as
a sex offender at this stage than if he had been convicted of shoplifting, drug dealing, or any

22

other crime that has no sexual element at all-indeed the label is less apt for Plaintiff, given
Defendants' concession. Therefore, casting a wide net to include all grey area cases bears no
rational relationship to this case, which, at this stage, presents no uncertainty at all.
Defendants further object that the Legislature could have rationally concluded that it
needed to include all individuals who had committed certain high-risk crimes, to avoid the
administrative costs of determining in each case whether someone's crime was sexual. See
Knox, 12 N. Y.3d at 69. Even assuming this would be rational, in cases in which the absence of a

sexual element is undisputed, no further administrative effort is required. This Court's opinion
today reaches no further than the situation at hand, in which the non-sexual nature of Plaintiffs
offense has been conceded. See Robinson, 873 So. 2d at 1215; Reine, 2003-Ohio-50,

~

28. An

ambiguous case that would require the expenditure of administrative resources to decide could
well present a distinct question. For example, if an individual contended that an evidentiary
hearing was required to show that there was no sexual element to their offense, the issue of
administrative resources might require a different analysis.
Defendants next argue that the Legislature "could have rationally determined that
individuals convicted of kidnapping a minor constitute a potential risk to other minors, whether
that risk is characterized as sexual or not, and that this risk justifies all the restrictions set fotih at
length in the R & R." Def. R & R Obj. at 12. However, this argument ignores that both the
stated purpose of SORA and the way it is designed are focused on preventing sexual offenses
rather than all crimes that are dangerous to minors. See R & Rat 40 (quoting from SORA's
legislative history as to SORA's purpose). The list of offenses that require designation as a sex
offender do not include all crimes that involve harm to a minor, even serious, violent crimes. See
CL§ 168-a(2)(a)(i); People v. Bell, 3 Misc. 3d 773, 788 (Sup. Ct. 2003) (noting that "the

23

conviction of Bruno Hauptman for the Lindbergh infant's murder would not have subjected him
to classification and registration under SORA" (emphasis in original)). And even beyond the
Legislature's own statements about its purpose and SORA's design, the Comi finds that
Defendants' proffered explanation is inconsistent with labeling Plaintiff (and requiring him to
register) as specifically a sex offender. There is no rational reason for applying this intensely
stigmatizing designation to an individual in Plaintiff's position. Nor do Defendants give any
explanation for why the sexual element of the designation is related to protecting against nonsexual harms-indeed, nothing about the Court's decision would prevent Defendants from
imposing a designation on Plaintiff that was rationally related to any non-sexual risk that he
might pose to children. What it does prohibit is applying a specifically sexual stigmatizing
designation and restrictions designed to prevent sexual abuse to an individual who has not
committed any and who poses viliually no risk of doing so. Such an action cannot be viewed as
rationally related to SORA's purpose.
Finally, the heavy costs imposed by Plaintiff's designation as a sex offender further
support the conclusion that there is no rational basis for so classifying him. In conducting a
rational basis analysis, a comi may appropriately take into account the costs imposed by the law.
Plyler, 457 U.S. at 223-24. SORA imposes significant civil burdens, as Plaintiff's case well

illustrates. His life and liberty have been drastically limited in many ways, from where he can
live to what speech he can engage in. SORA has also branded Plaintiff with one of the most
stigmatizing labels that exists in our society, in this case doing so without a factual basis. See,
e.g., ACLU of NM v. City of Albuquerque, 2006-NMCA-078,

~

25, 139 N.M. 761, 772 ("[T]he

hardship imposed on an offender convicted of kidnaping or false imprisonment to be labeled a
sex offender, absent any evidence of a sexual motivation for the crime, is great."); Vega, 596

24

F.3d at 81-82. And labeling individuals as sex offenders when their crimes are not sexual
actually risks undermining the usefulness of the registry created to effectuate SORA's purpose.

See People v. Diaz, 150 A.D.3d 60, 66 (N.Y. App. Div.), aff'd on other grounds, No. 134, 2018
WL 6492716 (N. Y. Dec. 11, 2018). These significant harms to Plaintiff and the risk that
labeling him as a sex offender actually undercuts public safety further support the conclusion that
SORA as applied to Plaintiff lacks rational basis.
For all of the above stated reasons, the Court ADOPTS Judge Moses's
recommendation-albeit on the additional grounds given above, which include Defendants'
concession at oral argument-and Defendants' motion to dismiss this claim is DENIED.

3. Defendants' Motion to Dismiss is Granted in Part and Denied in Part as
to Plaintifrs Vagueness Claims (Claim 3)
Plaintiffs third claim alleges that three of his parole conditions are unconstitutionally
vague: Special Condition No. 4, "which excludes plaintiff from 'school grounds' - defined to
include public areas within 1,000 feet of the school"; Special Condition No. 17, "which prohibits
him from being 'within 300 yards of places where children congregate"'; and Special Condition
No. 24, "which directs him to notify his parole officer and make certain disclosures when he
'establish[es] a relationship with a consenting adult."' R & Rat 46 (alteration in Report). Judge
Moses recommends that the Comi deny the motion to dismiss as to Conditions Nos. 4 and 7 and
grant it as to Condition No. 24. Defendants object to the former, while Plaintiff does not object
to the latter.
Under the Due Process Clause, "[a] statute can be impermissibly vague for either of two
independent reasons. First, if it fails to provide people of ordinary intelligence a reasonable
oppmiunity to understand what conduct it prohibits. Second, if it authorizes or even encourages
arbitrary and discriminatory enforcement." Hill v. Colorado, 530 U.S. 703, 732 (2000) (citing
25

Chicago v. Morales, 527 U.S. 41, 56-57 (1999)). And parole conditions are subject to review as
void for vagueness. LoFranco v. U.S. Parole Comm 'n, 986 F. Supp. 796, 808 (S.D.N.Y. 1997),

ajf'd, 175 F.3d 1008 (2d Cir. 1999). Applying this standard, the Court will address each of the
challenged conditions in turn.

a. Defendants' Motion to Dismiss Plaintifr s Claim that Special
Condition No. 4 is Unconstitutionally Vague is Denied in Part and
Granted in Part
Plaintiff seeks injunctive relief, but not damages, on his vagueness challenge to Special
Parole Condition No. 4. This condition, which is a statutorily mandated parole condition for
parolees convicted of offenses that include Plaintiffs, R & Rat 6, excludes Plaintiff from
"school grounds," defined to include public areas within 1,000 feet of a school, while minors are
present. EL§ 259-c(14); PL§ 220.00(14). Judge Moses recommended that: (i) Special
Condition No. 4 is not unconstitutionally vague as applied to where Plaintiff may reside, since
preclearance of residences by a parole office means there is no risk of an inadvertent violation;
and (ii) this condition is unconstitutionally vague as to where Plaintiff is allowed to travel, both
because it fails to provide sufficient notice and because it authorizes or encourages arbitrary
enforcement. R & Rat 49. Plaintiff did not object to the first part of Judge Moses'
recommendation with sufficient specificity, Pl. R & R Obj. Resp. at 16, so it will be reviewed for
clear error. Kirk v. Burge, 646 F. Supp. 2d 534, 537 (S.D.N.Y. 2009). Defendants raise two
principal objections to the second part of Judge Moses' recommendation: first, because the
condition has a knowledge requirement, there is no risk of an inadvertent violation; and second,
Judge Moses improperly considered hypotheticals in an as-applied vagueness challenge, which
must be confined to a plaintiffs actual conduct. These will be reviewed de nova.
The Comi agrees with Judge Moses that because Special Condition No. 4 requires that a
proposed residence be precleared by Plaintiffs parole officer, it is not void for vagueness. This
26

is particularly true since both the applicable statute and New York state court decisions
interpreting it provide precise definitions to determine how the 1,000 feet in question are
calculated. R & Rat 48. Finding no error, clear or otherwise, in this p01iion of Judge Moses'
Report, the Court adopts it in full.
Defendants object that Condition No. 4 cannot be unconstitutionally vague, because its
requirement that violations be knowing precludes inadve1ient violations. Yet this does not
address the separate conclusion that Condition No. 4, as applied to Plaintiff, is void on the
separate and independent grounds that "it authorizes or even encourages arbitrary and
discriminatory enforcement." Hill, 530 U.S. at 732. Indeed, the Supreme Court has indicated
that "the more important aspect of vagueness doctrine 'is not actual notice, but the other
principal element of the doctrine-the requirement that a legislature establish minimal guidelines
to govern law enforcement."' Kolender v. Lawson, 461 U.S. 352,358 (1983) (quoting Smith v.
Goguen, 415 U.S. 566, 574 (1974)). In the absence of such guidelines, a "criminal statute may

permit 'a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their
personal predilections."' Id. (alteration in original) (quoting Goguen, 415 U.S. at 575). The
1,000-foot rule encompasses vast swaths of New York City. R & Rat 50. It would also cover
innocent conduct, since, as Judge Moses noted, this prohibition includes the comihouse where
Plaintiff has been required to appear. R & Rat 50. The knowledge requirement does not
provide sufficient standards to govern the conduct that may be penalized as it is reasonable to
presume that "the fact that there are schools and childcare facilities throughout New York City is
something everyone ... knows." State v. Floyd Y., 56 Misc. 3d 271, 273 (N.Y. Sup. Ct. N.Y. Co.
2017). Therefore, unless Plaintiff remains in his shelter for much if not all of the day, he will
necessarily knowingly violate the law on countless occasions. While in practice, this condition

27

may only be enforced as to residency, Def. R & R Obj. at 14, these informal enforcement
practices cannot rescue the condition from vagueness where they "would not provide a defense"
to Plaintiff if he were to be arrested. See City of Chicago, 527 U.S. at 63-64. Nor is a saving
construction available, given the explicit language of the statute. R & Rat 51-52 (citing EL§
259-c(l4)). This mandatory condition therefore places almost limitless discretion in the hands of
Plaintiffs parole officers to arrest him for traveling almost anywhere in the city that he lives,
raising precisely the concerns that void-for-vagueness doctrine seeks to prevent. See Kolender,
461 U.S. at 357-58.
As the Court finds that Plaintiff has sufficiently stated a claim that the condition is void
for authorizing arbitrary enforcement, it need not reach whether it is void for lack of notice.
Defendants' other objection, that Plaintiffs claim is not a proper as-applied challenge,
fares no better. Defendants contend that Judge Moses erred by permitting Plaintiff to challenge
Condition No. 4 on vagueness grounds based on hypothetical future enforcement when, with the
exception of residency requirements, it has not been enforced again him. Defendants cite

Copeland v. Vance for the proposition that Plaintiff may not "seek to show that the ... law is
vague by positing hypothetical unfair enforcement actions in which the statute could not be
constitutionally applied." 893 F.3d 101, 113 (2d Cir. 2018). Yet Copeland made clear that
prospective, as-applied challenges are possible. Id at 111-13 (noting also that "a party asserting
a pre-enforcement challenge obviously cannot be required to show that a prior action was
invalid"). What Copeland required is that: "A party asse1iing a prospective as-applied challenge
must tailor the proof to the specific conduct that she would pursue but for fear of future
enforcement" and show that enforcement as to this conduct would raise vagueness concerns. Id.
at 112-13. In Copeland, Plaintiffs did not offer evidence of specific conduct they wished to

28

engage in that would trigger vagueness concerns, instead positing hypothetical scenarios in an
attempt to have the entire statute struck down. Id. at 113. Here, however, Plaintiff himselfhas
sufficiently alleged that he would engage in specific conduct that would violate the 1,000-feet
provision and in so doing raise vagueness concerns about arbitrary enforcement. SAC ,l 61.
Therefore, Plaintiffs challenge is properly framed as an as-applied challenge.
In light of the analysis above, the Court ADOPTS Judge Moses' reasoning with respect
to arbitrary enforcement, but not to lack of notice. Defendants' motion to dismiss this claim is
hereby DENIED.
b. Defendants' Motion to Dismiss Plaintiff's Claim that Special
Condition No. 17 is Unconstitutionally Vague is Denied in Part
and Granted in Part

Plaintiff seeks injunctive relief and damages on his vagueness challenge to Special
Condition No. 17. This condition expressly prohibits Plaintiff from "enter[ing]" or "be[ing]"
within 300 yards of "places where children congregate" without prior approval from his parole
officer. R & Rat 52-53 (alterations in Repmi). Judge Moses recommended that: (i) this
condition is void for vagueness for both lack of notice and for allowing arbitrary enforcement;
and (ii) because Plaintiff has not alleged this was enforced against him in the past, his claim for
damages should be dismissed. R &Rat 52-55. Defendants object on similar grounds as they did
for the 1,000-foot rule: first, that there is no possibility of inadve1ient violations because a
knowledge requirement should be read into the condition and because the condition provides a
list of examples illustrating the kinds of areas in question; and second, that Judge Moses
improperly relied on hypotheticals in evaluating an as-applied challenge.
As with Condition No. 4, however, even aside from the question of whether a person of
ordinary intelligence would have a reasonable opportunity to determine what conduct Condition
No. 17 prohibits, the condition would still be unconstitutionally vague because it "authorizes or

29

even encourages discriminatory enforcement." Hill, 530 U.S. at 732. If anything, this provision
applies to a broader swath of territory than Special Condition No. 4, as it not only includes
schools but also a number of other places as well, such as parks, bike trails, and pool halls. SAC
Ex. C ~17. Nor does it actually require the presence of a minor. Judge Moses noted that, once
again, the courthouse was within 300 yards of Columbus Park, R & Rat 54 n.40, while Plaintiff
noted that the Willow Avenue shelter, where he is currently housed, is directly across the street
from a family shelter at which young children congregate. See SAC~ 80. Once again, this
exceptionally broad scope places essentially total enforcement discretion in the hands of
Plaintiff's parole officers, allowing them to arrest Plaintiff for a host of legitimate activity, such
as stepping out of the shelter where his parole restrictions have effectively required him to
remain. See United States v. Malenya, 736 F.3d 554, 561 (D.C. Cir. 2013) (noting how a similar
restriction gave "the probation office the power to prevent [the registered sex offender] from
living almost anywhere and going to almost any place"). As applied to Plaintiff, this provision is
therefore unconstitutionally vague.
As above, since the Court finds that Plaintiff has sufficiently stated a claim that the
condition is void for authorizing arbitrary enforcement, it need not reach whether it is void for
lack of notice.
Turning to Plaintiff's claim for damages, the Court finds no error, clear or otherwise, in
Judge Moses' recommendation that this claim should be dismissed because Plaintiff failed to
allege that this condition had been enforced against him in the past.
The Comt ADOPTS the Repo1t as to the finding that this condition authorizes arbitrary
enforcement and as to damages, but not as to lack of notice. Defendants' motion to dismiss this
claim is DENIED as to injunctive relief and GRANTED as to money damages.

30

c. Defendants' Motion to Dismiss Plaintiff's Claim that Special
Condition No. 24 is Unconstitutionally Vague is Granted
Plaintiff seeks both injunctive relief and damages on his claim that Special Condition No.
24 is void for vagueness. Condition No. 24 requires Plaintiff to notify his parole officer "when I
establish a relationship with a consenting adult and then shall inform the party of my prior
criminal history concerning sexual abuse, in the presence of my parole officer." SAC Ex. C ~ 24
(emphasis in original). Judge Moses found that this was not void for vagueness and
recommended dismissal. R &Rat 55-56. Plaintiff did not object to this ruling and therefore the
Court reviews it for clear error.
Judge Moses found that a reasonable individual in Plaintiffs position would understand
that this condition referred not to all relationships, but only consensual sexual relationships. R &
Rat 55-56. Judge Moses also noted that since Plaintiff had already disclosed his relationship to
his fiancee, he "clearly understood the type of relationship the special condition targeted." R &
Rat 56. The Comi does not find the Report to be clearly erroneous. The Comi ADOPTS the
Report in full on this claim, and GRANTS Defendants' motion to dismiss.

4. Defendants' Motion to Dismiss is Denied as to Plaintiff's Claim that
Special Parole Condition No. 48 and Other Technology Restrictions
Violate His First Amendment Rights (Claim 4)
Plaintiffs parole conditions place a variety of de jure and de facto limitations on his
ability to access the internet, particularly social media. Under Special Condition No. 12, Plaintiff
cannot "engage or participate in any online computer service that involves the exchange of
electronic messages"; No. 35 states that he may not "own or possess a beeper, scanner or cell
phone without permission of[his] parole officer" and that if he is given permission to possess a
cell phone, it cannot be video or photo-capable; No. 39 prevents him from possessing a computer
or computer-related materials without approval by his parole officer; and No. 48 which, inter

31

alia, prohibits him categorically from accessing "a commercial social networking website."
SAC, Ex. C at 5-10. In addition to the specific restrictions on internet use itself, Plaintiff alleges
that the limitations on his access to technology have the de facto effect of barring him from
accessing the internet for nearly all purposes. SAC ~ 81-92, 162. Plaintiff argues that these
conditions violate his First Amendment rights and seeks injunctive relief and damages.
Judge Moses recommended that Condition No. 48, operating in conjunction with the
limitations on Plaintiff's access to technological devices, violated Plaintiff's First Amendment
rights under the Supreme Court's recent decision in Packingham v. North Carolina, 137 S. Ct.
1730 (2017). As to Plaintiff's request for damages, Judge Moses recommended dismissal on
qualified immunity grounds except as to officer Lewis-Robinson for the period after the Supreme
Comi's decision in Packingham. R & Rat 63-64. Defendants object to the Report's
recommendation on the merits of Plaintiff's First Amendment claim and as to whether qualified
immunity precludes money damages even post-Packingham. Plaintiff does not object to the
recommended denial of damages pre-Packingham. The Comi will address the merits of
Plaintiff's claim and the question of qualified immunity in tum.

a. The Motion to Dismiss is Denied as to Plaintifrs First Amendment
Claim
Defendants' primary objection is that Packingham does not apply to parole conditions
and Judge Moses erred in imposing intermediate scrutiny. Def. R & R Obj. at 17-19. The Comi
disagrees.
Under Packingham, blanket limitations on an individual's ability to access social media
will receive intermediate scrutiny, even when imposed as conditions of parole. There is no
indication in Packingham that parolees are exempted from the Comi's decision. The North
Carolina law challenged in Packingham applied to registered sex offenders generally, without
32

distinguishing between those who had finished any period of supervised release. Packingham,
137 S. Ct. at 1733-34; N.C. Gen. Stat. Ann. § 14-202.5(a) (applying the prohibition to registered
sex offenders). 5 In fact, the Court was clear that the distinction between those who were
presently under the supervision of the criminal justice system and those who no longer were was
not a basis for its holding: "the troubling fact that the law imposes severe restrictions on persons
who already have served their sentence and are no longer subject to the supervision of the
criminal justice system is also not an issue before the Court." Id. at 173 7 (emphasis added); see

also United States v. Browder, 866 F.3d 504, 511 n.26 (2d Cir. 2017), cert. denied, 138 S. Ct.
693 (2018) (noting that the Court in Packingham did not seem to rely on the fact that the ban
extended beyond the supervision of the criminal justice system). More generally, after
describing the myriad ways in which the internet and social networks are part of an ongoing
revolution in human communication, the Court cautioned that it would "exercise extreme caution
before suggesting that the First Amendment provides scant protection for access to vast networks
in that medium." Packingham, 137 S. Ct. at 1736. Indeed, the Supreme Court's decision to
apply intermediate scrutiny was based on the sheer breadth of legitimate speech burdened, a
concern that applies with equal force here. Packingham, 137 S. Ct. at 1735-37. While the Comi
stated that "it can be assumed that the First Amendment permits a State to enact specific,
narrowly tailored laws that prohibit a sex offender from engaging in conduct that often presages
a sexual crime, like contacting a minor or using a website to gather information about a minor" it
then made clear "[s]pecific laws of that type must be the State's first resort to ward off the
serious harm that sexual crimes inflict." Id. at 1737 (emphasis added). Therefore, while in some

5

See also Brief for Amici Curiae the Cato Institute, the American Civil Libe1ties Union, and the American
Civil Liberties Union of North Carolina in Suppmt of Petitioner, Packingham v. North Carolina, 2016 WL 8136359
(U.S.), 7 (U.S., 2016) ("North Carolina's registry law in turn applies whether or not a former offender is on parole or
probation.").

33

contexts parolees receive a lesser degree of constitutional protection, it would be inconsistent
with Packingham to categorically exempt parole conditions from its reach.
Nor is the Court persuaded by Defendants' objection that Packingham is distinguishable
because Plaintiffs parole conditions are not absolute. Def. R & R Obj. at 18-19. Condition No.
48, prohibiting access to commercial social networking websites, is not written to allow parole
officers to grant individualized exceptions. And Plaintiff alleges that in practice these conditions
have functioned as an almost absolute bar, with the exception of using a school computer and
"only for academic purposes and for purposes related to this lawsuit." SAC~~ 81-92. These
limited exceptions do not satisfy the concerns about access to the "vast democratic forums of the
internet" for a multiplicity of purposes that was the basis for the Supreme Court's decision.
Packingham, 137 S. Ct. at 1735-37 (internal quotation marks omitted). Fmihermore, the

possibility of certain case-by-case exceptions was insufficient to save other overly broad
conditions of supervised release limiting internet or technology access, even when analyzed
under a less demanding standard. See United States v. Sofsky, 287 F.3d 122, 126 (2d Cir. 2002);
United States v. Peterson, 248 F.3d 79, 81, 82-84 (2d Cir. 2001). Therefore, the possibility of

case-by-case exceptions from some of these conditions does not exempt them from Packingham,
a conclusion reinforced by the nearly blanket manner they have allegedly been applied.
Defendants do not argue that these conditions can withstand intermediate scrutiny and the
Court agrees with Judge Moses that they cannot. Under intermediate scrutiny, a law must not
"burden substantially more speech than is necessary to further the government's legitimate
interests." McCullen v. Coakley, 134 S.Ct. 2518, 2535 (2014) (internal quotation marks omitted).
Plaintiffs crime did not involve the internet, social media, the exchange of electronic messages,

34

cell phones, or computers. R & R at 62. As applied to Plaintiff, these restrictions therefore
plainly burden substantially more speech than necessary and therefore fail intermediate scrutiny.
b. Defendants Are Entitled to Qualified Immunity on PlaintifPs First
Amendment Claims

While Plaintiff has sufficiently pled a First Amendment claim on the merits, the Comi
must still address whether the doctrine of qualified immunity warrants dismissing Plaintiffs
claim for money damages. If a defendant can show that qualified immunity applies, a claim for
money damages should be dismissed as a matter of law. McKenna v. Wright, 386 F.3d 432,436
(2d Cir. 2004). Qualified immunity would not, however, bar Plaintiffs request for injunctive
relief. See, e.g., Horne v. Coughlin, 191 F.3d 244, 250 (2d Cir. 1999) (qualified immunity is not
a defense to injunctive relief).
The Court finds that Plaintiffs rights were not clearly established under Packingham and
that Defendants are therefore entitled to qualified immunity. For a right to be clearly established,
"existing precedent must have placed the statutory or constitutional question beyond debate."
White v. Pauly, 137 S. Ct. 548, 551 (2017) (internal quotes omitted). Though for the reasons

above the Court ultimately agrees with Plaintiffs reading of Packingham, it has not been
established in this jurisdiction that it applies to conditions of supervised release and a number of
other federal courts have indicated that it might not. See, e.g., United States v. Rock, 863 F.3d
827, 831 (D.C. Cir. 2017). Therefore, the constitutional question of Packingham's application in
this context was not beyond debate.
As to the period before Packingham, Plaintiff did not object to Judge Moses's conclusion
that his rights before the Supreme Comi's decision were not clearly established. Reviewed
under the deferential clear error standard, it was not clearly erroneous for Judge Moses to
conclude that-in part because Plaintiff had implicitly conceded this argument, R & R at 6435

the unlawfulness of Defendants' conduct under the First Amendment was not clearly established
prior to Packingham. Therefore, qualified immunity bars Plaintiffs request for money damages
on his First Amendment claim both before and after Packingham.
For these reasons, the Cami ADOPTS the Report's reasoning as to the merits of
Plaintiffs First Amendment claim but not as to damages. Defendants' motion to dismiss
Plaintiffs First Amendment claim on the merits is DENIED, but Defendants' motion to dismiss
Plaintiffs claim for money damages is GRANTED.

5. Defendants' Motion to Dismiss is Denied in Part as to Plaintiff's Claim of
Interference with his Family Relationships (Claim 5)
Plaintiff contends that he has a fundamental right to contact with his extended family and
that his parole conditions prohibiting contact with minors in his family violates his due process
rights. Plaintiff seeks both injunctive relief and money damages on this claim. Under Special
Condition No. 15, Plaintiff is prohibited from having any contact with children under the age of
18 without the prior approval of his parole officer. SAC, Ex. C at 6. Judge Moses agreed with
Defendants that Plaintiff had no fundamental right to contact extended family members who are
not his own children and with whom he never had a close or custodial relationship. R & R at 6567. However, even though no fundamental right was at stake, Judge Moses found that the Due
Process Clause still requires that parole conditions be "reasonably related to [the parolee's] prior
conduct or the government's interest in his rehabilitation." R & Rat 67 (alteration in Report)
(quoting Singleton v. Doe, 210 F. Supp. 3d 359, 374 (E.D.N.Y. 2016)). Judge Moses found that
viewed on the motion to dismiss standard, Plaintiff had sufficiently alleged a claim for injunctive
relief and damages as against Defendant Lewis-Robinson. Defendants object on several
grounds, Plaintiff does not.

36

The Court does not find any error-clear or otherwise-in Judge Moses's conclusion that
Plaintiff's fundamental rights were not implicated here and adopts this portion of the Report.
Defendants object that Plaintiff only pled a violation of his fundamental rights, and
therefore Judge Moses erred by proceeding to apply the lower standard of review. Def. R & R
Obj. at 19-21. It is true that Plaintiff did not include Special Condition No. 15 among the
conditions that he challenged in a separate section as arbitrary and capricious. SAC~~ 171-73.
Nonetheless, Plaintiff did plead that the way the condition is applied to him violates the Due
Process Clause, id.

~~

93-105, 164-69, which provides the level of review that Judge Moses

applied, Singleton, 210 F. Supp. 3d at 372-74. Therefore, the Court finds that Plaintiff stated a
claim that the way Condition No. 15 is being applied to him violates his rights under the Due
Process Clause.
As to the merits of Plaintiff's claim, Defendants object that because Plaintiff's crime
involved harm to a minor, there is a rational relationship between this condition and the threat
Plaintiff poses to children. Def. R & R Obj. at 19-20. Drawing all reasonable inferences in
Plaintiff's favor, Plaintiff has alleged that Condition No. 15 is being applied as an absolute ban
on his ever coming into contact with a minor member of his family. The Court agrees with
Judge Moses that Plaintiff's kidnapping for ransom of an umelated minor has no rational
relationship to an absolute bar on his ever seeing minors to whom he is related, even in the
presence of other adult family members. R & R at 68-69. Therefore, the Court rejects
Defendants' objection.
Defendants also specifically object that neither form of relief sought by Plaintiff,
injunctive relief and money damages, are available on this claim, warranting dismissal. Def. R
& R Obj. at 20, 20 n.3. The Court addresses each objection in turn.

37

Separate from their arguments about the preliminary injunction, Defendants object that
Plaintiffs request for injunctive relief should be dismissed entirely, since the only relief he could
ultimately receive would be an impermissibly vague injunction ordering Defendants to "follow
the law." Id. at 20 n.3. Defendants are correct that "[u]nder Rule 65(d), an injunction must be
more specific than a simple command that the defendant obey the law." S. C. Johnson & Son,
Inc. v. Clorox Co., 241 F.3d 232,240 (2d Cir. 2001) (quoting Peregrine Myanmar Ltd. v. Segal,

89 F.3d 41, 51 (2d Cir. 1996)). Under this standard, "an injunction must 'be specific and definite
enough to apprise those within its scope of the conduct that is being proscribed."' Id. at 240-41
(quotingN.Y State Nat'! Org.for Women v. Terry, 886 F.2d 1339, 1352 (2d Cir.1989)). The
purpose of this rule is "to prevent unce1iainty and confusion on the part of those to whom the
injunction is directed, and to be sure that the appellate court knows precisely what it is
reviewing." Id. at 241 (internal quotation marks omitted) (quoting Rosen v. Siegel, 106 F.3d 28,
32 (2d Cir.1997)). The Court does not find that, as a matter of law, it would be impossible to
tailor sufficiently specific injunctive relief to this claim. For example, an injunction requiring
Plaintiffs parole officers to consider his requests on a case-by-case basis and provide an
explanation based on legitimate interests such as public safety and rehabilitation would provide
sufficient notice to Defendants as to what is prohibited, and be definite enough in scope for
further review.
As to damages, the Court concludes that it was not clearly established that Defendant
Lewis-Robinson's conduct was unlawful and she is therefore entitled to qualified immunity.
While it is established that parole conditions may not be applied in an arbitrary and capricious
manner, the qualified immunity analysis requires greater patiicularity. See White v. Pauly, 137
S. Ct. 548, 551-52 (2017). The only factually similar case to which Plaintiff points, Doe v. Lima,

38

involved an individual's relationship with his son, and therefore implicated a fundamental liberty
interest. 270 F. Supp. 3d 684, 704 (S.D.N.Y. 2017); see also Doe v. Annucci, No. 14 CIV. 2953
(PAE), 2015 WL 4393012, at *12-13 (S.D.N.Y. July 15, 2015) (same). Absent other authority,
the Court agrees with Singleton, which found that qualified immunity applies to due process
challenges to parole conditions as "[ a]!though parolees are entitled to ce1iain limited due process
rights in the conditions of their parole, those due process rights are not clearly defined." 210 F.
Supp. 3d at 374. Therefore, the Cami concludes that all Defendants are entitled to qualified
immunity on this claim.
For the reasons given above, the Cami ADOPTS the Report as to the merits of Plaintiffs
claim, but not as to qualified immunity. Defendants' motion to dismiss is DENIED as to the
merits of Plaintiffs claim, but GRANTED as to Plaintiffs claim for damages.
6. Defendants' Motion to Dismiss is Denied in Part on Plaintifr s Claim that
Nine of His Parole Conditions Are Arbitrary and Capricious (Claim 6)

In Plaintiffs sixth and final claim, he alleges that a number of his parole conditions are
arbitrary and capricious and that his parole officers acted arbitrarily and capriciously, in violation
of the Due Process Clause. This includes officer Lewis-Robinson's alleged refusal to consider
alternate proposed residences besides the shelter to which he has been assigned, the restrictions
on his internet and technology use, as well as "Special Condition No. 24, governing his
relationships with consenting adults; Nos. 31 and 32, which prohibit him from owning,
operating, or being a passenger in a motor vehicle without the permission of his PO; No. 14,
which prohibits him from purchasing or possessing sexually explicit materials; No. 19, which
prevents him from owning a pet; and No. 37, which prohibits him from renting a post office box
without his PO's prior approval." R & Rat 70. Plaintiff seeks injunctive relief and damages on
these claims. The Court will address each of these restrictions in turn.
39

As an initial matter, the parties and Judge Moses agree as to the legal standard for
evaluating such claims. 6 "[P]arolees are entitled to some form of due process in the imposition
of special conditions of parole." Pollard v. United States Parole Comm 'n, No. 15-CV-9131
(KBF), 2016 WL 3167229, at *4 (S.D.N.Y. June 6, 2016) (citing cases). "In the Second Circuit,
special restrictions on a parolee's rights are upheld where they 'are reasonably and necessarily
related to the interests that the Government retains after his conditional release."' Muhammad v.
Evans, No. 11 CV 2113 (CM), 2014 WL 4232496, at *9 (S.D.N.Y. Aug. 15, 2014) (quoting
Birzon v. King, 469 F.2d 1241, 1243 (2d Cir.1972)). Conditions will be upheld if there is a
reasonable relationship to the parolee's prior conduct or to a legitimate government interest such
as rehabilitation, the prevention of recidivism and future offenses, and protection of the public.
Singleton, 210 F. Supp. 3d at 372-74 (citing cases). On the other hand, if conditions are
arbitrary and capricious, they will be invalidated. See, e.g., Boddie, 2011 WL 1697965, at *2
(citing cases). Defendants argue that there is effectively a heightened pleading standard for such
claims, Def. Mot. to Dismiss, Dkt. No. 60, at 17, but the Court agrees with Judge Moses that the
sole case on which Defendants purport to base this principle, Trisvan v. Annucci, 284 F. Supp. 3d
288, 304 (E.D.N.Y. 2018), is properly understood as reflecting the unusual circumstances
surrounding that case, not announcing a general heightened pleading standard. R & Rat 76-77,
77 n.5. The Court will apply the standard pleading requirements and the arbitrary and capricious
standard to Plaintiffs various challenges.
a. Defendants' Motion to Dismiss is Denied in Part as to Special
Condition No. 4

6

Defendants had initially argued that state court was the only proper venue for such claims, but appear to
no longer press that argument after Judge Moses correctly rejected it. R & Rat 68 n.48.

40

Plaintiff challenges that Defendants are arbitrarily and capriciously requiring him to stay
in the shelter to which he has been assigned. Judge Moses recommended that Defendants'
motion to dismiss be denied as to the merits of Plaintiffs claim, but granted as to money
damages except with respect to Defendant Lewis-Robinson. R & Rat 70-71. Defendants object
as to both.
Defendants object that Judge Moses erred by finding that Plaintiff has stated a claim on
the basis of a single incident alone. Def. R & R Obj. at 21-22. The Court relies on Judge
Moses's thorough description of Plaintiffs allegations surrounding his request to move out of
the Willow Avenue Men's Shelter and in with his fiancee's sister, Ms. Blake. R & R 70-71. The
Court agrees with Judge Moses that Plaintiff has alleged facts giving rise to a plausible claim on
the merits that his residency requirements are being arbitrarily and capriciously applied in a
manner that de facto confines him to the shelter for the convenience of his parole officer. R & R
at 71. This objection is therefore rejected.
Here again, Defendants specifically object that neither injunctive relief nor money
damages are available on this claim, warranting dismissal. The Court addresses each in turn.
Independently of their arguments about a preliminary injunction, Defendants object that
any injunctive relief on this claim would be so vague as to be unenforceable and so the claim for
injunctive relief should be dismissed entirely. Def. R & R Obj. at 22. As above, the Court
cannot conclude that, as a matter of law, it would be impossible to tailor sufficiently specific
injunctive relief on this claim. For example, Plaintiff offers that if he could establish in
discovery "that Ms. Blake would be willing to house him and there is no non-arbitrary reason to
deny his request to move" the Court could require Defendants to allow Plaintiff to live with Ms.

41

Blake. Pl. R & R Obj. Resp. at 27. Therefore, the Cami cannot conclude that, as a matter of
law, no appropriate injunctive relief could be granted on this claim.
As to damages, the Court finds that while it is established that in general parole
conditions cannot be arbitrary and capricious, neither Judge Moses nor Plaintiff identified any
sufficiently similar cases to clearly establish that Defendant Lewis-Robinson's conduct with
respect to alternate residences was unconstitutionally arbitrary. See Pauly, 137 S. Ct. at 551-52;

Singleton, 210 F. Supp. 3d at 374. Therefore, the parole officer defendants are entitled to
qualified immunity on this claim.
For the reasons above, the Court therefore ADOPTS the Repmi as to the merits of
Plaintiffs claim, but not as to qualified immunity. Defendants' motion to dismiss Plaintiffs
claim on the merits is DENIED, but Defendants' motion to dismiss Plaintiffs claim for money
damages is GRANTED.

b. Defendants' Motion to Dismiss is Granted as to Special Condition
No. 24
Special Condition No. 24 requires Plaintiff to disclose his sexual relationships to his
parole officer and disclose his supposed prior history of sexual abuse to his paiiners. SAC, Ex. C
~24. Judge Moses recommended that since this was not "reasonably related to his prior conduct
or to the government's interest in his rehabilitation[,]" the motion to dismiss should be denied as
to the merits of Plaintiffs claim. R & Rat 74-75. However, Judge Moses recommended
granting the motion to dismiss with respect to money damages, as Plaintiff had failed to
sufficiently allege harm and Defendants were entitled to qualified immunity. Id. at 75. For the
reasons given below, the Comis finds it unnecessary to address the merits of this claim, as
Plaintiff has failed to show standing on his claim for injunctive relief, City of Los Angeles v.

Lyons, 461 U.S. 95, 101-06 (1983), and qualified immunity bars his claim for damages, Mesa v.
42

City of New York, No. 09 CIV. 10464 JPO, 2013 WL 31002, at *7 (S.D.N.Y. Jan. 3, 2013) (a

court is not required to address the merits of a claim before deciding that qualified immunity
applies).
Though this was not raised as an objection, the Cami finds that Plaintiff has failed to
sufficiently allege a risk of future harm sufficient for standing to bring a claim for injunctive
relief. A federal court has an obligation to confirm whether a plaintiff has standing, including
raising the issue sua sponte. Cent. States Se. & Sw. Areas Health & Welfare Fund v. MerckMedco Managed Care, L.L.C., 433 F.3d 181, 198 (2d Cir. 2005). "[A] plaintiff seeking

injunctive relief must demonstrate both a likelihood of future harm and the existence of an
official policy or its equivalent." Shain v. Ellison, 356 F.3d 211,216 (2d Cir. 2004) (emphasis in
original) (citing Lyons, 461 U.S. at 105-06). To satisfy the first prong, a Plaintiff must establish
that "he has sustained or is immediately in danger of sustaining some direct injury as the result of
the challenged official conduct." Lyons, 461 U.S. at 101-02 (internal quotation marks omitted).
Past injury alone is insufficient to satisfy this requirement, unless it is causing continuing,
present harm. See Deshawn E. by Charlotte E. v. Sajir, 156 F.3d 340,344 (2d Cir.1998). In this
case, Plaintiff has only alleged the past harm of being required to tell his fiancee about his status
and that "he was forced to disclose the sexual nature of his relationship to PO Lewis-Robinson in
detail." SAC~~ 121-22. Plaintiff has not alleged that either of these requirements is ongoing,
nor that he plans to enter into a new relationship such that this disclosure would be triggered
again. Therefore, the Comi will dismiss, without prejudice, Plaintiffs request for injunctive
relief on this claim for lack of standing. 7

7

See Katz v. Donna Karan Co., L.L.C., 872 F.3d 114, 121 (2d Cir. 2017) ("[W]here a case is dismissed for
lack of Article III standing, as here, that disposition cannot be entered with prejudice, and instead must be dismissed
without prejudice.") (emphasis in original).

43

As to damages, for similar reasons as those given in the qualified immunity analyses
above, there are no sufficiently similar cases to establish with sufficient particularity that
Defendant Lewis-Robinson's conduct with respect to this claim was unconstitutionally arbitrary.

See Pauly, 137 S. Ct. at 551-52; Singleton, 210 F. Supp. 3d at 374. Defendant parole officers are
therefore entitled to qualified immunity on this claim. For this reason, the Comi does not reach
the question of whether Plaintiff sufficiently alleged past harm.
For the forgoing reasons, neither injunctive relief nor money damages are available on
this claim, which must therefore be dismissed. The Report is ADOPTED as to qualified
immunity, but not as to the merits of Plaintiffs claim or whether Plaintiff sufficiently alleged
harm. Defendants' motion to dismiss this claim is hereby GRANTED in full.

c. Defendants' Motion to Dismiss is Granted as to Special Conditions
Nos. 31 and 32
Plaintiff challenges Special Conditions Nos. 31 and 32, which inter alia, prohibit him
from obtaining a driver's license, as well as from owning, operating, or being a passenger in a
motor vehicle, without pe1mission of his Parole Officer. SAC, Ex. C 1131-32. Judge Moses
found that because Plaintiff had used a car in the commission of his crime and the conditions
imposed on him were not absolute, these limitations were not arbitrary and capricious and
recommended dismissal of these claims. R & Rat 75-76. Plaintiff did not object to this
recommendation, which will therefore be reviewed for clear error. The Court finds that Judge
Moses' recommendation is not clearly erroneous. Where an individual used a vehicle in the
commission of their crime, a parole condition limiting their access to such vehicles without
approval is not unreasonable. See Gerena v. Rodriguez, 192 A.D.2d 606, 606-07 (1993).
Therefore, the Court ADOPTS the Repmi in full as to this claim and Defendants' motion to
dismiss this claim is hereby GRANTED.
44

d. Defendants' Motion to Dismiss is Granted as to Special Conditions
Nos. 14, 19, and 37
Plaintiff challenges that prohibitions on his viewing pornography (Special Condition No.
14), owning a pet (Special Condition No. 19), or owning a post office box (Special Condition
No. 37), are arbitrary and capricious. R & Rat 76-78. However, Judge Moses recommended
that because Plaintiff had failed to allege that any of these prohibitions were having any impact
on his life, his claims should be dismissed. R & Rat 78. Plaintiff did not object to this
recommendation, which will therefore be reviewed for clear error.
This Court finds no clear error in Judge Moses's recommendation. Plaintiff has not pled
standing sufficient for either injunctive relief or money damages. As to injunctive relief, even
drawing all reasonable inferences in his favor, Plaintiff has failed to allege "he has sustained or is
immediately in danger of sustaining some direct injury as the result of the challenged official
conduct." Lyons, 461 U.S. at 101-02. Nor has Plaintiff pled past harm that would warrant money
damages. Indeed, Plaintiff has pled no injury at all resulting from these conditions, but rather
simply lists them off in his complaint. SAC~~ 128-29, 173. Because Plaintiff lacks standing,
these claims must be dismissed. Therefore, the Comi ADOPTS the Repmi on this claim and
Defendants' motion to dismiss Plaintiff's claims with respect to Special Conditions Nos. 14, 19,
and 37 is therefore GRANTED without prejudice.

e. Defendants Are Entitled to Qualified Immunity on Plaintiff's
Claim that the Internet and Technology Restrictions Are
Arbitrary and Capricious
In addition to his First Amendment challenge, Plaintiff also challenges that the parole
conditions restricting his access to the internet and technology are arbitrary and capricious. SAC
~

l 73(i)-(ii). The Report does not address this claim separately, as it considered the same issues

in its First Amendment analysis. R & Rat 70 n.50. Neither party objected. The Court agrees

45

that it is not necessary to determine the merits of this claim separately. However, whether
Defendants are entitled to qualified immunity on Plaintiff's claim for damages under the Due
Process Clause requires a separate analysis from the First Amendment claim.
The Court finds that Plaintiff's due process rights here were not clearly established for
the purposes of qualified immunity. A right may be clearly established by either controlling
authority or "a robust consensus of cases of persuasive authority." Ashcroft v. al-Kidd, 563 U.S.
731, 741-42 (2011) (internal quotation marks omitted). Here, neither condition is met. Second
Circuit decisions interpreting the somewhat more stringent statutory standard imposed on federal
conditions of supervised release under 18 U.S.C. § 3553(a) and§ 3563(b) have invalidated
conditions restricting internet or computer access if they were not reasonably related to the
purposes of sentencing or inflicted a greater deprivation of libe1iy than necessary. See United
States v. Sofsky, 287 F.3d 122, 126 (2d Cir. 2002); United States v. Peterson, 248 F.3d 79, 82-84
(2d Cir. 2001 ). Yet given the different legal standard, these are not controlling authority as to the
constitutional analysis of state parole conditions. A recent case in the Eastern District of New
York drew on these decisions-while noting the different standards-to sustain on summary
judgment a challenge to a parole condition limiting a parolee's ability to own a phone with a
camera where there was no evidence that it was related to prior conduct. Singleton, 210 F. Supp.
3d at 375-76. However, the court in that case also found that Defendants were entitled to
qualified immunity given that due process rights in this context are "not clearly defined." Id. at
374. Therefore, while a consensus is emerging that it is arbitrary and capricious under the Due
Process Clause to impose these kinds of technology and internet restrictions without an
individualized link to prior conduct or another legitimate government interest, it has not yet been

46

sufficiently clearly established for the purposes of the qualified immunity analysis. Defendants'
motion to dismiss Plaintiffs claim for damages on this claim is therefore GRANTED.
For the reasons given above, Defendants' motion to dismiss is hereby GRANTED in full
as to Claim 1, Claim 3 as to residences and the consensual relationships rule, Claim 6 as to the
consensual relationships rule, motor vehicles rule, pornography, pets, and P.O. boxes.
Defendants' motion is also GRANTED as to money damages on all claims. Otherwise,
Defendants' motion is hereby DENIED.
D.

Plaintiff is Entitled to a Preliminary Injunction on his Substantive Due
Process Claim

The Court now turns to Plaintiffs motion for a preliminary injunction. Judge Moses's
Report recommended that Plaintiff is entitled to a preliminary injunction on his substantive due
process claim. Defendants object on several grounds, which the Court addresses in turn.
As an initial matter, Defendants argue that even if Plaintiff has sufficiently pled a claim
to survive their motion to dismiss, Plaintiff has not demonstrated a substantial likelihood of
success on the merits. Def. R & R Obj. at 12. For the reasons given above in the section
denying Defendants' motion to dismiss this claim, the Court disagrees and concludes that
Plaintiff has established a clear likelihood of success on the merits justifying the imposition of a
preliminary injunction. Defendants do not object to Judge Moses' recommendation that Plaintiff
has shown irreparable harm, and the Court finds no error-clear or otherwise-in Judge Moses'
thorough discussion of the question. R & Rat 79-82.
Defendants object to the Report's recommendation that the preliminary injunction would
be in the public interest. The Court disagrees. Judge Moses is conect that it is in the public
interest to grant Plaintiffs motion for preliminary injunction because he presents no "sexual
risks that sex offender registration, and the Sex Offender Conditions, are designed to combat." R

47

& Rat 82 (emphasis in original); Pl. R & R Obj. Resp. at 28. As a result, lifting Plaintiffs

designation would not just ensure compliance with the Constitution, Melendres v. Arpaio, 695
F.3d 990, 1002 (9th Cir. 2012) (citing cases), it would remedy ongoing harm to Plaintiff and
increase the accuracy of SORA's designation of individuals as sex offenders, see People v. Diaz,
150 A.D.3d 60, 66 (N.Y. App. Div.), aff'd on other grounds, No. 134, 2018 WL 6492716 (N.Y.
Dec. 11, 2018). And even ifremedying a constitutional violation were not, standing alone,
always enough to outweigh countervailing public interests, Def. R & R Obj. at 24, Defendants
offer no concrete or persuasive examples of how the public interest would be harmed by the
injunction. Defendants cursorily argue that the Report "(l) improperly placed the burden of
proof on this issue upon defendants rather than plaintiff; (2) was not based on any evidence
placed before the Comi; (3) failed to offer sufficient deference to the state officials'
determinations to the contrary; and (4) was factually incorrect given plaintiffs crimes of
conviction." Def. R & R Obj. at 24. As noted above, Defendants at this stage have conceded
that there was no sexual element to Plaintiffs offense. And the record offers no indication or
allegation of a sexual element to Plaintiffs crime or of any risk of sexual misconduct, but rather
a judicial determination by Justice Obus to the contrary. R & Rat 10-11. Moreover, a
significant number of parole conditions will remain even if Plaintiff is no longer designated as a
sex offender, Pl. R & R Obj. Resp. at 28, and Defendants retain their discretion to impose
conditions of parole that are reasonably related to a legitimate government interest and any nonsexual risk Plaintiff may pose. Therefore, the Court finds that Plaintiff has shown, based on the
record, that it is in the public interest to grant a preliminary injunction.
Defendants also argue that the Court should only consider whether "the parole conditions
imposed by the state officials ... were so arbitrary and irrational that they could not protect the

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public from Plaintiff in any manner, sexual or not." Def. R & R Obj. at 23. Even if this were
true for Plaintiff's challenges to his specific conditions of parole, Plaintiff's Claim 2 objects to
being designated as a "sex offender," and the question before the Court is thus whether that
designation is rational and whether enjoining Defendants from labeling Plaintiff as such, and
imposing parole conditions solely on that basis, would serve the public interest. Given that, as
noted above, the injunction will allow Defendants to impose conditions based on any legitimate
interests unrelated to Plaintiff's designation as a sex offender, this objection is unavailing.
Defendants also argue that the issue of parole conditions should be remanded to the
Defendants to reconsider before any preliminary injunction issues. Def. R & R Obj. at 25-26.
Specifically, the Defendants argue that they should have a chance to determine "whether any of
the statutory parole conditions ... should still be imposed here to protect the public." Id. The
Court concludes that no such remand is necessary. Defendants cite the Second Circuit's decision
in Schwartz v. Dolan, 86 F.3d 315 (2d Cir. 1996), to suppmi their argument, but that decision is
impmiantly different from the instant case in two ways.
First, unlike in Schwartz, the preliminary injunction here would provide Defendants with
significant flexibility to design and tailor the manner in which they will comply. In Schwartz,
the district court "gave detailed instructions" on how a state agency was required to provide
notice to public assistance recipients, which would have involved "extensive modifications to the
computer systems that create the notices." Schwartz, 86 F.3d at 319. By mandating a specific
restructuring of the agency's operations, the district court had foreclosed the remedy the agency
would have selected. Id. The Second Circuit held that because there were "different possible
ways to remedy the violation," the agency should have had an opp01iunity to present its own
plan for remedying the constitutional deficiencies. Id. Here, however, the preliminary

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injunction language, as crafted by Judge Moses, provides Defendants with precisely the
opportunity they seek to consider whether any parole conditions are still necessary to protect the
public; Defendants have ample flexibility and discretion to impose parole conditions "to the
extent they deem those conditions appropriate for plaintiff in light of his non-sexual criminal
history and characteristics." R & Rat 85. And, contrary to Defendants' contentions, they are
not categorically prohibited from imposing discretionary conditions that may be similar in
content to the mandatory conditions so long as they are not otherwise inconsistent with the
injunction. Def. R & R Obj. at 25. As a result, this injunction does not involve the kind of
systemic management by a federal court of the operation of state institutions that was
problematic in Schwartz. Nor does it foreclose Defendants' ability to select the manner to
remedy the violation identified. Since this injunction already provides Defendants with the
flexibility they seek, remand is unnecessary to permit Defendants to choose how they wish to
comply with the Court's ruling.
Second, Schwartz involved a permanent injunction, rather than the preliminary injunctive
relief sought here. As is true in this case, preliminary injunctive relief is time-sensitive, which
weighs against adopting procedures that will entail delays resulting in further ongoing irreparable
harm. This consideration is particularly weighty here, as Plaintiff first filed his motion for a
preliminary injunction over nine months ago and represents that remanding to Defendants for
subsequent approval by this Court might result in the mooting of several of his claims. Pl. R &
R Obj. Resp. at 29 n.11. Fmihermore, with a preliminary injunction, a party will be given "an
opportunity to present [their] own plan" for complying with a court's ruling, Schwartz, 86 F.3d at
319, before permanent injunctive relief, if any, is entered. Because Plaintiff is suffering ongoing,

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irreparable harm, the Court declines to require another series of submissions to the Court before
entering preliminary relief.
For all of the above-stated reasons, the Court concludes that Plaintiff has satisfied his
burden of demonstrating that a preliminary injunction is wan-anted. The Court will ADOPT
Judge Moses' recommended preliminary injunction on Claim 2. In addition, the Court agrees
with the Report-and Plaintiff, Pl. R & R Obj. at 3-that the injunction recommended by Judge
Moses on Claim 2 is sufficient to address Plaintiffs request for injunctive relief. R & Rat 2, 8586. Therefore, the Court finds it unnecessary to address whether Plaintiff has made a sufficient
showing to warrant injunctive relief on his other surviving claims.

VI.

Conclusion
For the reasons given above, the Court GRANTS Defendants' motion to dismiss as to

Claim 1 in full; Claim 3 in full as to the consensual relationships rule, the residency requirement
of Condition No. 4, and all claims for damages; Claim 4 as to damages; Claim 5 as to damages;
Claim 6 as to damages on all claims, and for both injunctive relief and damages as to the claims
regarding conditions regulating consensual relationships, motor vehicles, pornography, pets, and
P.O. boxes.
The Court DENIES the motion to dismiss as to all other claims. The Court also clarifies
that Defendant Acting Commissioner Annucci remains in this case in his official capacity as the
Defendant for the purposes of any injunctive relief on Claims 2, 3, and 4. Pl. R & R Obj. at 9.
Finally, the Court GRANTS Plaintiffs request for a preliminary injunction on Claim 2,
and hereby ADOPTS Judge Moses's well-crafted language: Defendants, together with their
agents, employees, and all persons acting in concert with them, are preliminarily enjoined,
pending the final resolution of this action, from enforcing, as against Plaintiff, the registration

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and notification provisions made applicable to designated sex offenders by SORA (CL§§ 168a168w), or the mandatory conditions prescribed by EL§§ 259-c(14) and (15) for parolees
sentenced for an offense for which registration as a sex offender is required; and are directed to
rescind the discretionary provisions of the Sex Offender Conditions (Yunus Deel. Ex. C, at ECF
pages 4-10) except to the extent they deem those conditions appropriate for plaintiff in light of
his non-sexual criminal history and characteristics.
This resolves docket numbers 43 and 59. As this matter has been referred to Magistrate
Judge Moses for general pretrial, Dkt. 15, by separate order Judge Moses may schedule a case
management conference.
SO ORDERED.
Dated: January-~-' 2018
New York, New York
United States District Judge

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