Franza v. Stanford et al

Filing 96

OPINION AND ORDER: For the foregoing reasons, Defendants Motion To Dismiss is granted. A complaint should be dismissed without prejudice if the pleading, "'liberally read', suggests that the plaintiff has a claim that []he has inadequ ately or inartfully pleaded and that []he should therefore be given a chance to reframe." Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (citation and alterations omitted) (quoting Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999)). If a complaint, however, has substantive problems and "[a] better pleading will not cure [them]," "[s]uch a futile request to replead should be denied." Id. (citing Hunt v. All. N Am. Gov't Income Tr., 159 F.3d 7 23, 728 (2d Cir. 1998)). Even prose plaintiffs are not entitled to file an amended complaint if the complaint "contains substantive problems such that an amended pleading would be futile." Lastra v. Barnes & Noble Bookstore, No. 11-CV-217 3, 2012 WL 12876, at *9 (S.D.N.Y. Jan. 3, 2012), aff'd, 523 F. App'x 32 (2d Cir. 2013). Because the Court finds that further amendment would be futile, Plaintiffs claims are dismissed with prejudice. The Clerk of the Court is respectful ly requested to terminate the pending motion, (Dkt.No. 80), close this case, and mail a copy of this Opinion to Plaintiff. SO ORDERED. (Signed by Judge Kenneth M. Karas on 2/5/2019) (jca) Transmission to Docket Assistant Clerk for processing. Transmission to Orders and Judgments Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

DOMINIC M. FRANZA,
Plaintiff,
v.
No. 16-CV-7635 (KMK)
TINA M. STANFORD; EDWARD M.
SHARKEY; OTIS CRUZE; SALLY
VELASQUEZ-THOMPSON; GAIL
HALLERDIN; WALTER WILLIAM
SMITH, JR.,

OPINION AND ORDER

Defendants.

Appearances:
Dominic M. Franza
Beacon, NY
Pro Se Plaintiff
Neil Shevlin, Esq.
New York State Office of the Attorney General
New York, NY
Counsel for Defendants
KENNETH M. KARAS, District Judge:
Pro se Plaintiff Dominic M. Franza (“Plaintiff”), currently incarcerated at Fishkill
Correctional Facility, filed the instant Fourth Amended Complaint, pursuant to 42 U.S.C. § 1983,
against New York State Board of Parole Chairwoman Tina M. Stanford (“Stanford”) and
Commissioners Edward M. Sharkey (“Sharkey”), Otis Cruze (“Cruze”), Sally VelasquezThompson (“Velasquez-Thompson”), Gail Hallerdin (“Hallerdin”), and Walter William Smith,
Jr. (“Smith”) (collectively, “Defendants”). (See Fourth Am. Compl. (“FAC”) (Dkt. No. 80).)
Plaintiff alleges that Defendants violated his rights under the Fourteenth and Eighth

Amendments when they determined his eligibility for parole, and evaluated his appeal of that
determination, based upon an invalid decision-making procedure. (See generally id.)
Before the Court is Defendants’ Motion To Dismiss the Complaint Pursuant to Federal
Rule of Civil Procedure 12(b)(6). (See Not. of Mot. To Dismiss (“Defs.’ Mot.”) (Dkt. No. 85);
Defs.’ Mem. of Law in Supp. of Mot. To Dismiss (“Defs.’ Mem.”) (Dkt. No. 86).) Defendants
argue that Plaintiff’s claims are barred by collateral estoppel, that the Fourth Amended
Complaint fails to state a claim, that his claim for damages is barred by Heck v. Humphrey, 512
U.S. 477 (1994), and the Eleventh Amendment of the U.S. Constitution, and that Defendants are
entitled to absolute and qualified immunity. (See generally Defs.’ Mem.) For the following
reasons, Defendants’ Motion is granted.
I. Background
The Court assumes the Parties’ familiarity with the factual and procedural history of this
case, as described in Franza v. Stanford, No. 16-CV-7635, 2018 WL 914782, at *1–6 (S.D.N.Y.
Feb. 14, 2018). (See (Op. & Order (“Opinion”) 2–11 (Dkt. No. 71).) The Court here
summarizes only background information necessary to resolve the instant Motion.
A. The New York Parole Scheme
In 2011, the New York State Legislature amended the statute governing the functions,
powers, and duties of the New York Board of Parole (the “Board”), requiring that its “written
procedures for . . . making parole decisions . . . shall incorporate risk and needs principles . . . .”
N.Y. Exec. Law § 259-c(4). The same year, the Legislature also amended the statute governing
the procedures for the conduct of the work of the Board, mandating that the procedures adopted
pursuant to § 259-c(4) require the Board to consider eight enumerated factors. Id.

2

§ 259-i(2)(C)(A). 1 In response to these statutory amendments, the Board filed a Notice of
Proposed Rulemaking with the Secretary of the State of New York on December 18, 2013.
(FAC ¶ 20; FAC Ex. 1 (“Notice of Proposed Rule Making”).) Two Assemblymen of the
Legislature then wrote a letter to the Board, objecting that, contrary to legislative intent, the
proposed rules “treat the [risk and needs assessment and case management plan] requirements of
§ 259-c(4) . . . as mere additional factors for consideration by the Parole Board,” rather than as
an overarching, “independent, evidence-based, objective evaluation” which “should inform the
Board’s analysis of [an inmate’s] suitability for release.” (FAC Ex. 2 (“Jan. 21, 2014 Letter”).)
Nevertheless, on April 21, 2014, the Board adopted the rule by a unanimous vote of all members,
including Defendants. (FAC ¶ 25; FAC Ex. 3 (“Certification”).) The new rule provided that
“[i]n making any parole release decision the following factors shall be considered”: (1) the eight
statutory factors listed in N.Y. Exec. Law § 259-i(2)(C)(A), and (2) other additional factors,
including “the most current risk and needs assessment” and “the most current case plan”
prepared by the New York Department of Corrections and Community Supervision (“DOCCS”).
(FAC ¶ 26.) See 9 N.Y.C.R.R. § 8002.3 (2014) (listing the latter two factors as numbers 11 and
12). 2
On May 2, 2016, a bill was introduced in the New York State Legislature to again amend
§ 259-c(4) and § 259-i(2)(C)(A) to emphasize that the Board must use risk and needs principles
in its overall parole release decision making, rather than as mere factors. (FAC Ex. 4 (“2016
Bill”); FAC Ex. 5 (“Accompanying Memorandum”).) A year later, after noting the objections to

1

This version of the statute was enacted in 2011 N.Y. Sess. Laws ch. 62 (S. 2812-C)
(McKinney), Art. 8 § 201. It was effective from March 31, 2011 until August 30, 2012, when it
was revised again.
2

This regulation has since been amended and renumbered. It is now found in 9
N.Y.C.R.R. § 8002.2 (2017).
3

the existing rule at a meeting, the Board officially amended the rule governing their parole
release decision-making. (FAC ¶ 33; FAC Ex. 11 (“Notice of Adoption”).) The new rule notes
that, in making a release determination, “the Board shall be guided by risk and needs principles,”
and “[t]he Board also shall consider the most current case plan that may have been developed . . .
pursuant to [§] 71-a of the Correction Law.” 9 N.Y.C.R.R. §§ 8002.2(a), (b) (2017). The
amended rule removes factors (11) and (12)—the risk and needs assessment and the case plan—
from the list of factors. See id. § 8002.2(d). (See FAC ¶ 33.)
B. Application to Plaintiff
As a prisoner serving two indeterminate sentences, see DOCCS, Inmate Information,
http://nysdoccslookup.doccs.ny.gov (last visited Jan. 30, 2018) (DIN # 92A3659), Plaintiff was
entitled to a personal interview with members of the Board to determine whether he was eligible
for parole at least one month prior to the expiration of his aggregate minimum sentence—25
years, see N.Y. Penal Law § 70.40(1)(a)(i) (date of parole eligibility for prisoners serving
indeterminate sentences); N.Y. Exec. Law § 259-i(2)(a) (date of parole eligibility interview). On
December 15, 2015, Defendants Smith, Velasquez-Thompson, and Hallerdin presided over
Plaintiff’s parole interview, asking him a series of questions. (FAC ¶ 37; FAC Ex. 12
(“Interview”).) After deliberating, Smith, Velasquez-Thompson, and Hallerdin rendered a
decision denying Plaintiff discretionary parole and ordering him to be held for another 24
months, and to re-appear in October 2017. (Interview 14.) They explained that the following
factors weighed against Plaintiff’s release: the serious nature of his offenses, the fact that “[t]he
victims sustained serious physical injury,” that Plaintiff “denied involvement and denied any
culpability” during the interview, and that he “incurred several disciplinary infractions” in
prison. (Id. at 14–15.) According to Plaintiff, Defendants Smith, Velasquez-Thompson, and

4

Hallerdin conducted this hearing and rendered this decision “[w]hile knowingly and intentionally
refusing to follow N.Y. State procedure”—that is, by applying the rules codified in § 8002.3
despite its alleged conflict with § 259-c(4), § 259-i(2)(a), and § 259-i(2)(C)(A). (FAC ¶ 37; see
also id. ¶¶ 43, 46 (same).)
Plaintiff filed an administrative appeal of the Board’s decision, arguing, among other
things, that the proceeding violated his due process rights by including the 11th and 12th factors
in § 8002.3. (FAC ¶ 38; FAC Ex. 13 (“Administrative Parole Appeal Brief”).) After
considering a variety of documents, including Plaintiff’s brief, Defendants Stanford, Sharkey,
and Cruze affirmed the Board’s decision. (See FAC Ex. 14 (“Administrative Appeal Report and
Recommendation”).) In doing so, they allegedly “refus[ed] to follow N.Y. State procedure.”
(FAC ¶ 39; see also id. ¶¶ 49, 52 (alleging that they did so “knowingly and intentionally” and
with “malice and oppression”).)
On June 1, 2016, Plaintiff instituted an Article 78 proceeding in the New York Supreme
Court, Albany County, “raising arguments identical to those in this federal case,” including that
application of § 8002.3 to his parole decision violated his federal procedural due process rights.
(Opinion 9; see also Pl.’s Mem. 4; Plaintiff’s Letter to Court (November 17, 2017) (“Pl.’s
Letter”) Ex. 13 (“Article 78 Petition”) 11–15.) 3 On January 13, 2017, the New York Supreme

3

Plaintiff notably removed allegations relating to the Article 78 Petition from his Fourth
Amended Complaint, and included no exhibits in connection with the state court proceeding.
Nevertheless, Plaintiff has previously submitted documents relating to the Article 78 Petition and
Decision, and both Parties discuss them in their memoranda, (see Pl.’s Mem. 4–5, 8–11; Defs.’
Mem. 4–5, 10–11), indicating that they are “integral” to Plaintiff’s claims, see Cortec Indus., Inc.
v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991) (finding district court could consider
documents of which the plaintiffs had notice and which were “integral” to their claim in ruling
on motion to dismiss even though those documents were not incorporated into the complaint by
reference). Additionally, the state court documents relating to the Article 78 Proceeding are
public records. See Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 75 (2d Cir. 1998) (“It is
well established that a district court may rely on matters of public record in deciding a motion to
5

Court dismissed Plaintiff’s Article 78 Petition. (See Pl.’s Letter Ex. 17 (Franza v. Stanford et al.,
Index No. 3910-16 (N.Y. Sup. Ct. Jan. 13, 2017)) (“Article 78 Decision”).) The court found that
“the record reveals that the Board [of Parole] considered the pertinent statutory factors and
followed the appropriate guidelines in denying [Plaintiff]’s request for parole release,” and that
the Board’s consideration of “the COMPAS instrument as one factor among several [was] in
accordance with its established procedures for incorporating risk and needs principles into its
decision-making process,” which “ha[s] been held to sufficiently comply with statutory
directives.” (Id. at 2–3.)
C. Procedural History
Plaintiff filed his initial Complaint on September 29, 2016, (Compl. (Dkt. No. 1)), and
subsequently has filed several amended complaints, (First Am. Compl. (Dkt. No. 31); Second
Am. Compl. (Dkt. No. 41); Third Am. Compl. (Dkt No. 60)), including the operative Fourth
Amended Complaint on May 16, 2018, (FAC). On February 14, 2018, the Court dismissed
Plaintiff’s Third Amended Complaint, dismissing Plaintiff’s Fourteenth Amendment claims with
prejudice on collateral estoppel grounds, but noting that Plaintiff also failed to state a claim, and
dismissing Plaintiff’s Eighth Amendment claim without prejudice, giving Plaintiff 30 days to
amend. (See generally Opinion.) On March 1, 2018, Plaintiff filed a motion for reconsideration,
requesting reconsideration of the collateral estoppel ruling. (Dkt. Nos. 72, 73.) On March 12,

dismiss under Rule 12(b)(6), including case law and statutes.”). Therefore, the Court will
consider them for purposes of deciding this Motion. See Harrison v. Diamonds, No. 14-CV-484,
2014 WL 3583046, at *2 (S.D.N.Y. July 18, 2014) (“Courts can take notice of the public records
from earlier actions ‘not for the truth of the matters asserted but rather to establish the fact of
such litigation and related filings.’” (alteration omitted) (quoting Kramer v. Time Warner Inc.,
937 F.2d 767, 774 (2d Cir. 1991))); Yan Won Liao v. Holder, 691 F. Supp. 2d 344, 352
(E.D.N.Y. 2010) (taking judicial notice of “public documents filed in connection with”
proceedings in a different court on a motion to dismiss where the defendants raised res judicata
as an affirmative defense).
6

2018, Defendants filed an opposition to the motion. (Dkt. No. 74.) On March 13, 2018, Plaintiff
filed an “addendum memorandum” in further support of the motion, (Dkt. No. 75), and on March
26, 2018, filed a reply memorandum, (Dkt. No. 77).
On April 26, 2018, the Court issued an Order granting in part and denying in part
Plaintiff’s motion for reconsideration. (See Order (Dkt. No. 79).) With respect to the collateral
estoppel ruling, the Court denied Plaintiff’s motion with respect to the implementation and
application of § 8002.3, explaining that the Court “found that the Article 78 court already
decided the question of whether Plaintiff’s federal due process rights were violated . . . and thus
it cannot be relitigated in this Court.” (Order 12.) However, with respect to Plaintiff’s “separate
procedural due process claim based on Defendants’ formulation and adoption of § 8002.3,” the
Court stated that “although the Court clearly determined that Plaintiff raised this claim in his
Article 78 petition, and that the Article 78 Court ‘necessarily decide[d] that § 8002.3—at least in
its application to Plaintiff, if not also on its face—was not unconstitutional or procedurally
defective,’” Plaintiff correctly noted that “the Court inadvertently (and incorrectly) stated in a
later footnote that ‘Defendants do not argue that such a claim was decided in the Article 78
decision.’” (See Order 13 (citations omitted).) The Court therefore allowed Plaintiff to amend
his Fourteenth Amendment claim “solely with respect to Defendants’ formulation and adoption
of § 8002.3.” (Id.)
Plaintiff filed the Fourth Amended Complaint on May 16, 2018. (See FAC.) On July 12,
2018, Defendants moved to dismiss the Fourth Amended Complaint. (See Defs.’ Mot.; Defs.’
Mem.) Plaintiff filed an Opposition to the Motion on August 3, 2018, (see Pl.’s Mem. in Opp’n
to Mot. To Dismiss (“Pl.’s Mem.”) (Dkt. No. 90)), and Defendants filed a Reply on October 24,
2018, (Defs.’ Reply Mem. in Further Supp. of Mot. To Dismiss (“Defs.’ Reply”) (Dkt. No. 95)).

7

II. Discussion
A. Standard of Review
Defendants move to dismiss the Fourth Amended Complaint pursuant to Federal Rule of
Civil Procedure 12(b)(6). (Defs.’ Mem.) The Supreme Court has held that although a complaint
“does not need detailed factual allegations” to survive a motion to dismiss, “a plaintiff’s
obligation to provide the grounds of his entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration and quotation marks omitted). Indeed,
Rule 8 of the Federal Rules of Civil Procedure “demands more than an unadorned, thedefendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quotation marks omitted). “Nor does a complaint suffice if it tenders naked assertions devoid of
further factual enhancement.” Id. (alteration and quotation marks omitted). Instead, a
complaint’s “[f]actual allegations must be enough to raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 555. Although “once a claim has been stated adequately, it may be
supported by showing any set of facts consistent with the allegations in the complaint,” id. at
563, and a plaintiff must allege “only enough facts to state a claim to relief that is plausible on its
face,” id. at 570, if a plaintiff has not “nudged [his or her] claims across the line from
conceivable to plausible, the[] complaint must be dismissed,” id.; see also Iqbal, 556 U.S. at 679
(“Determining whether a complaint states a plausible claim for relief will . . . be a contextspecific task that requires the reviewing court to draw on its judicial experience and common
sense. But where the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader
is entitled to relief.’” (citation omitted) (second alteration in original) (quoting Fed. R. Civ. P.

8

8(a)(2))); id. at 678–79 (“Rule 8 marks a notable and generous departure from the
hypertechnical, code-pleading regime of a prior era, but it does not unlock the doors of discovery
for a plaintiff armed with nothing more than conclusions.”).
In considering Defendants’ Motion To Dismiss, the Court is required to “accept as true
all of the factual allegations contained in the [C]omplaint.” Erickson v. Pardus, 551 U.S. 89, 94
(2007) (per curiam); see also Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (same). And, the
Court must “draw[] all reasonable inferences in favor of the plaintiff.” Daniel v. T & M Prot.
Res., Inc., 992 F. Supp. 2d 302, 304 n.1 (S.D.N.Y. 2014) (citing Koch v. Christie’s Int’l PLC,
699 F.3d 141, 145 (2d Cir. 2012)). Where, as here, a plaintiff proceeds pro se, the Court must
“construe[] [his complaint] liberally and interpret[] [it] to raise the strongest arguments that [it]
suggest[s].” Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013) (per curiam) (quotation
marks omitted). However, “the liberal treatment afforded to pro se litigants does not exempt a
pro se party from compliance with relevant rules of procedure and substantive law.” Bell v.
Jendell, 980 F. Supp. 2d 555, 559 (S.D.N.Y. 2013) (quotation marks omitted);
Generally, “[i]n adjudicating a Rule 12(b)(6) motion, a district court must confine its
consideration to facts stated on the face of the complaint, in documents appended to the
complaint or incorporated in the complaint by reference, and to matters of which judicial notice
may be taken.” Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999) (quotation
marks omitted). However, when the plaintiff is pro se, the Court may consider “materials
outside the complaint to the extent that they are consistent with the allegations in the complaint,”
Alsaifullah v. Furco, No. 12-CV-2907, 2013 WL 3972514, at *4 n.3 (S.D.N.Y. Aug. 2, 2013)
(quotation marks omitted), including, “documents that a pro se litigant attaches to his opposition
papers,” Agu v. Rhea, No. 09-CV-4732, 2010 WL 5186839, at *4 n.6 (E.D.N.Y. Dec. 15, 2010)

9

(italics omitted), statements by the plaintiff “submitted in response to [a] defendant’s request for
a pre-motion conference,” Jones v. Fed. Bureau of Prisons, No. 11-CV-4733, 2013 WL
5300721, at *2 (E.D.N.Y. Sept. 19, 2013), and “documents that the plaintiff[] either possessed or
knew about and upon which [he or she] relied in bringing the suit,” Rothman v. Gregor, 220 F.3d
81, 88 (2d Cir. 2000).
B. Analysis
1. Procedural Due Process Claim
a. Collateral Estoppel
In light of the Court’s Order on Plaintiff’s motion for reconsideration, Defendants now
“repeat the argument they raised” in their prior motion to dismiss that Plaintiff is collaterally
estopped from bringing his procedural due process claims based on the formulation and adoption
of § 8002.3 because they were already litigated in the Article 78 proceeding. (Defs.’ Mem. 8–
11.) 4 As explained in the Court’s Opinion, collateral estoppel, also known as issue preclusion,
provides that “when an issue of ultimate fact has once been determined by a valid and final
judgment, that issue cannot again be litigated between the same parties in any future lawsuit.”
Swiatkowski v. Citibank, 745 F. Supp. 2d 150, 168 (E.D.N.Y. 2010) (quotation marks omitted),
aff’d, 446 F. App’x 360 (2d Cir. 2011); see also Tracy v. Freshwater, 623 F.3d 90, 99 (2d Cir.
2010) (“Collateral estoppel precludes a party from relitigating in a subsequent action or
proceeding an issue clearly raised in a prior action or proceeding and decided against that party.”
(quotation marks omitted)). Federal courts must give the same preclusive effect to state court
judgments as would be given by courts of the state itself, see Hayes v. Cty. of Sullivan, 853 F.
Supp. 2d 400, 424 (S.D.N.Y. 2012), which means that New York law governs the preclusive

4

This argument does not apply to Plaintiff’s Eighth Amendment claim.
10

effect of a prior Article 78 judgment on a § 1983 action in federal court, see Ortiz v. Russo, No.
13-CV-5317, 2015 WL 1427247, at *6 (S.D.N.Y. Mar. 27, 2015). Accordingly, collateral
estoppel will preclude a court from deciding an issue where “(1) the issue in question was
actually and necessarily decided in a prior proceeding, and (2) the party against whom the
doctrine is asserted had a full and fair opportunity to litigate the issue in the first proceeding.”
McKithen v. Brown, 481 F.3d 89, 105 (2d Cir. 2007) (quotation marks omitted); see also Hayes,
853 F. Supp. 2d at 425 (same). “The party asserting issue preclusion bears the burden of
showing that the identical issue was previously decided, while the party against whom the
doctrine is asserted bears the burden of showing the absence of a full and fair opportunity to
litigate in the prior proceeding.” Colon v. Coughlin, 58 F.3d 865, 869 (2d Cir. 1995); see also
Thomas v. Venditto, 925 F. Supp. 2d 352, 360 (E.D.N.Y. 2013) (same).
Plaintiff concedes that he, “in the Article 78 proceeding, . . . challenged the formulation
and adoption of § 8002.3, on its face.” (Pl.’s Mem. 10.) However, he argues that he should not
be precluded from raising the argument here because the Article 78 Decision addressed “pure
questions of law,” which are not entitled to preclusive effect. (See id.) See also McGrath v.
Gold, 330 N.E.2d 35, 38 (N.Y. 1975) (“[C]ollateral estoppel does not apply to an unmixed
question of law.” (citing United States v. Moser, 266 U.S. 236, 242 (1924) (“The contention of
the government seems to be that the doctrine of res judicata does not apply to questions of law;
and, in a sense, that is true. It does not apply to unmixed questions of law. . . . But a fact,
question or right distinctly adjudged in the original action cannot be disputed in a subsequent
action, even though the determination was reached upon an erroneous view or by an erroneous
application of the law.”))).

11

Defendants correctly note that Plaintiff raised this exact argument in his motion for
reconsideration, and that the Court rejected it. (See Order 11 (“Contrary to Plaintiff’s
interpretation, the Court did not conclude that the entire Article 78 decision was a pure legal
conclusion in its Opinion.”).) As the Court explained, “the Article 78 court found, based on the
factual record, that the Board did not improperly consider risk and needs principles as factors
rather than as an overarching principle, and therefore squarely decided the issue presented here—
whether § 8002.3 as applied to Plaintiff denied him procedural due process.” (Id.) Furthermore,
the Court “clearly determined that Plaintiff raised this claim [regarding the formulation and
adoption of § 8002.3] in his Article 78 petition” and that the Article 78 court necessarily decided
it “at least in its application to Plaintiff, if not also on its face,” but allowed Plaintiff to amend his
claim with respect to the formulation and adoption of § 8002.3, in light of his pro se status and
the Court’s inadvertent statement that Defendants had not argued that the claim was decided in
the Article 78 Decision. (Id. at 13.)
Additionally, it is clear from the Article 78 Decision that the court considered and
rejected Plaintiff’s argument that the formulation and adoption of § 8002.3 was defective. With
respect to the Parole Board’s adoption of § 8002.3 despite ongoing objections by members of the
Legislature, the Article 78 Decision notes, “[a]lthough petitioner points out that members of the
Legislature have introduced bills in an effort to require the Board to accord greater weight to an
inmate’s risk and needs assessment, any such proposed legislation has yet to become law, and
thus is not controlling.” (Article 78 Decision 3.) The Article 78 court therefore necessarily
considered the legislative history of § 8002.3 and Plaintiff’s argument that the Legislature
disagreed with its formulation and adoption, and nonetheless found that the Board’s actions did
not violate Plaintiff’s procedural due process rights. (See Opinion 17 (“Plaintiff’s Article 78

12

petition, like his Third Amended Complaint, extensively details the legislative history of the
statutes and regulation relevant here, and all of his arguments are based on the fundamental
proposition that § 8002.3 violates the identified New York statutes.”). See also Fuchsberg &
Fuchsberg v. Galizia, 300 F.3d 105, 109 (2d Cir. 2002) (holding that issue preclusion applied
where the state court’s rejection of the petitioner’s argument, “clearly raised” in the petitioner’s
brief but not expressly addressed by the court, was “necessary” to what the state court “explicitly
decided”); Davis v. Jackson, No. 15-CV-5359, 2018 WL 358089, at *9 (S.D.N.Y. Jan. 8, 2018)
(“[N]ot only did [the] [p]laintiff raise each of his discrete due process claims in the Article 78
proceedings, but in both instances, the state court necessarily rejected his claims by concluding
on the merits that [the] [p]laintiff had not met his burden of establishing that the procedures used,
or subsequent outcome, of either hearing constituted a violation of [the] [p]laintiff’[s] due
process rights.”); Leo v. N.Y.C. Dep’t of Educ., No. 13-CV-2271, 2014 WL 6460704, at *6
(E.D.N.Y. Nov. 17, 2014) (“The prior decision of the issue need not have been explicit, however,
if by necessary implication it is contained in that which has been explicitly decided.” (alteration
and quotation marks omitted)).
The Court therefore grants the Motion To Dismiss Plaintiff’s procedural due process
claim on collateral estoppel grounds.
b. The Merits
In any event, even if not barred by collateral estoppel, Plaintiff’s procedural due process
claim based on the formulation and adoption of § 8002.3 fails on the merits. “[T]o present a
[procedural] due process claim, a plaintiff must establish (1) that he possessed a liberty interest
and (2) that the defendant(s) deprived him of that interest as a result of insufficient process.”
Giano v. Selsky, 238 F.3d 223, 225 (2d Cir. 2001) (quotation marks omitted). “The appropriate

13

process depends on the balancing of three factors: (1) ‘the private interest that will be affected by
the official action;’ (2) ‘the risk of erroneous deprivation of such interest through the procedures
used;’ and (3) ‘the Government’s interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural requirement would entail.’”
Panzella v. Sposato, 863 F.3d 210, 218 (2d Cir. 2017), as amended (July 18, 2017) (quoting
Mathews v. Eldridge, 424 U.S. 319, 335 (1976)).
As an initial matter, Plaintiff has “no liberty interest in parole, and the protections of the
Due Process Clause are inapplicable.” Barna v. Travis, 239 F.3d 169, 171 (2d Cir. 2001) (per
curiam); see also Sheppard v. N.Y.S. Div. of Parole, No. 10-CV-5376, 2011 WL 2610695, at *3
(S.D.N.Y. June 28, 2011) (collecting cases); Loria v. Butera, No. 09-CV-531, 2010 WL
3909884, at *5 (N.D.N.Y. Sept. 29, 2010) (“[B]ecause [the] [p]laintiff had no liberty interest in
conditional parole re-release, any procedural infirmity did not give rise to a cognizable
constitutional claim.”). However, even assuming Plaintiff has a liberty interest in receiving a
personal interview to determine his parole eligibility under N.Y. Exec. Law § 259-i(2)(a), (see
Pl.’s Mem. 17), he still does not allege how the process he received was constitutionally
defective, see Zinermon v. Burch, 494 U.S. 113, 126 (1990) (explaining that, to determine
whether the process provided “was constitutionally adequate,” the court must “examine the
procedural safeguards built into the statutory or administrative procedure of effecting the
deprivation, and any remedies for erroneous deprivations provided by statute or tort law”); id. at
127–28 (analyzing when a pre or post-deprivation hearing is necessary); cf. Victory v. Pataki,
814 F.3d 47, 63 (2d Cir. 2016) (explaining that procedural due process requires “the opportunity
to be heard at a meaningful time and in a meaningful manner,” which includes “that the decision

14

be issued by a neutral and detached hearing body such as a traditional parole board and
supported by at least some evidence” (quotation marks omitted)).
Plaintiff argues that because § 8002.3 was not formulated and adopted in accordance with
§ 259-c(4) and § 259-i(2)(C)(A), his parole decision applying § 8002.3 “did not provide the
process due, an overarching, independent, evidence-based objective evaluation, during the
evaluation phase.” (Pl.’s Mem. 20–21.) Plaintiff’s argument implies that the Legislature’s intent
that the requirements of § 259-c(4) be applied as “an independent, evidence-based, objective
evaluation” rather than as merely additional factors for consideration by the Board, as reflected
by two legislators’ submission during the rulemaking process, (see Jan. 21, 2014 Letter, at 1),
became the “process due” under the Fourteenth Amendment. This is simply not the case. The
Legislature’s purported disapproval of the decision-making procedures formulated and adopted
by the Board under § 8002.3 does not render those procedures insufficient under the Due Process
Clause. The New York Legislature’s directives to the Board with respect to the appropriate
process for parole determinations do not alter the process due under the Constitution. See
Gordon v. Alexander, 592 F. Supp. 2d 644, 650 (S.D.N.Y. 2009) (“[S]tate statutes do not create
federally protected due process entitlements to specific state-mandated procedures.” (citing
Holcomb v. Lykens, 337 F.3d 217, 224 (2d Cir. 2003))); see also Olim v. Wakinekona, 461 U.S.
238, 250–51 (1983) (“The State may choose to require procedures . . . but in making that choice
the State does not create an independent substantive right.”); Blouin v. Spitzer, 356 F.3d 348, 363
(2d Cir. 2004) (“[F]ederal law, not state regulations, determines the procedures necessary to
protect [a] liberty interest.”); Cofone v. Manson, 594 F.2d 934, 938 (2d Cir. 1979) (“Although a
Due Process Clause liberty interest may be grounded in state law that places substantive limits
on the authority of state officials, no comparable entitlement can derive from a statute that

15

merely establishes procedural requirements.”); cf. Richmond Boro Gun Club, Inc. v. City of New
York, 97 F.3d 681, 689 (2d Cir. 1996) (“When the legislature passes a law which affects a
general class of persons, those persons have all received procedural due process—the legislative
process. The challenges to such laws must be based on their substantive compatibility with
constitutional guarantees.” (quotation marks omitted)).
As discussed in the Court’s Opinion, Plaintiff identifies no process of which he was
deprived due to the formulation and adoption of § 8002.3. Plaintiff received an interview at
which he was asked multiple questions. (See Interview.) After deliberating, the interviewing
Defendants explained the factors they “weighed and considered,” and decided discretionary
release was not appropriate due to safety concerns. (Id. at 14–15.) Similarly, the Defendants
considering Plaintiff’s appeal evaluated the record and Plaintiff’s brief before affirming the
Board’s decision. (See Administrative Appeal Report and Recommendation.) That the
formulation of § 8002.3 may have violated New York law by improperly including risk and
needs principles as factors rather than as overarching principles does not render the process
Plaintiff ultimately received inherently unfair or procedurally improper under the Constitution.
See Greenholtz v. Inmates of Nebraska Penal & Correctional Complex, 442 U.S. 1, 16 (1979)
(“The Nebraska procedure affords an opportunity to be heard, and when parole is denied it
informs the inmate in what respects he falls short of qualifying for parole; this affords the
process that is due under these circumstances. The Constitution does not require more.”);
Holcomb, 337 F.3d at 224 (“Elevating a state-mandated procedure to the status of a
constitutionally protected liberty or property interest, would make process an end in itself rather
than a requirement whose constitutional purpose is to protect a substantive interest in which the
individual has a claim of entitlement.” (quotation marks omitted)); Tatta v. Miller, No. 05-CV-

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1205, 2005 WL 2806236, at *3 (E.D.N.Y. Oct. 27, 2005) (“[T]he denial of [the inmate]’s
application for parole comported with procedural due process, which, in this context, requires
only that the inmate be given an opportunity to be heard and informed of the reasons for the
denial of parole.”).
Therefore, Plaintiff’s claim that the formulation and adoption of § 8002.3 violated his
right to due process under the Fourteenth Amendment fails on the merits. 5
2. Eighth Amendment Claim
Defendants argue that Plaintiff’s Fourth Amended Complaint still fails to plausibly allege
an Eighth Amendment violation. (Defs.’ Mem. 11–12.) This claim was previously dismissed
because Plaintiff did “not allege that the interview process involved any application of pain or
another serious deprivation of a necessity, such as food, medical care, or safety, nor does he
allege that the process was without penological justification” as required to establish an Eighth
Amendment violation. (Opinion 26.) Additionally, the Court rejected Plaintiff’s argument that
his parole denial extended his sentence, noting that “his maximum sentence is 50 years from
1992—a date that has not yet passed.” (Id. at 27.)
Plaintiff’s Fourth Amended Complaint does not allege any new facts that suggest
Plaintiff has been subjected to cruel and unusual punishment under the Eighth Amendment.
Plaintiff alleges that Defendants’ actions caused him to “remain[] in prison without Procedural
Due Process of Law,” resulting in emotional distress, mental anguish, headaches, loss of sleep,
heightened anxiety, and depression. (See FAC ¶¶ 46–47, 52–53.) Plaintiff’s Opposition states

5

Because Plaintiff’s claim fails on the merits, the Court need not reach Defendants’
argument that they are entitled to absolute legislative immunity for the formulation and adoption
of § 8002.3. (See Defs.’ Mem. 5.)
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that “the complaint bespeaks the process was without penological justification,” (Pl.’s Mem. 17),
but does not otherwise explain how his allegations state an Eighth Amendment claim.
Plaintiff fails to cure the deficiencies of his prior complaints with respect to his Eighth
Amendment claim. Plaintiff still does not allege that the process he received “involved the
application of pain or another serious deprivation of a necessity,” or that it improperly extended
his sentence. (See Opinion 26–27.) Plaintiff’s sole argument is that the denial of parole resulted
in his remaining in prison; however, the Court has already explained that denial of parole is
insufficient to state a claim under the Eighth Amendment. (See id. at 27.) See also D’Angelo v.
Annucci, No. 16-CV-6459, 2017 WL 6514692, at *10 (S.D.N.Y. Dec. 19, 2017) (holding that the
plaintiff failed to state an Eighth Amendment Claim because he “was not held beyond his
maximum sentence”); Williams v. Carpenter, 214 F. Supp. 3d 197, 202 (W.D.N.Y. 2016) (“A
denial of parole or early release does not constitute cruel or unusual punishment, within the
meaning of the Eighth Amendment.”); Sheppard, 2011 WL 2610695, at *4 (“[T]he mere fact
that [the plaintiff] has been denied parole does not violate any provision of the Constitution,
much less the Eighth Amendment.” (citations omitted)).
The Court therefore grants Defendants’ Motion To Dismiss Plaintiff’s Eighth
Amendment claim. 6
III. Conclusion
For the foregoing reasons, Defendants’ Motion To Dismiss is granted. A complaint
should be dismissed without prejudice if the pleading, “‘liberally read,’ suggests that the plaintiff

6

Because the Court already dismissed both the Fourteenth Amendment and Eighth
Amendment claims, it need not reach Defendants’ alternative arguments that they are entitled to
qualified immunity or that Plaintiff’s damages claims are barred by Heck v. Humphrey, 512 U.S.
477 (1994). (Defs.’ Mem. 14–16.)
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has a claim that []he has inadequately or inartfully pleaded and that []he should therefore be
given a chance to reframe." Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (citation and
alterations omitted) (quoting Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999)).
If a complaint, however, has substantive problems and "[a] better pleading will not cure [them],"

"[s]uch a futile request to replead should be denied." Id. (citing Hunt v. All. N Am. Gov 't
Income Tr., 159 F.3d 723, 728 (2d Cir. 1998)). Even prose plaintiffs are not entitled to file an
amended complaint if the complaint "contains substantive problems such that an amended
pleading would be futile." Lastra v. Barnes & Noble Bookstore, No. 1l-CV-2173, 2012 WL
12876, at *9 (S.D.N.Y. Jan. 3, 2012), aff'd, 523 F. App'x 32 (2d Cir. 2013). Because the Court
finds that further amendment would be futile, Plaintiffs claims are dismissed with prejudice.
The Clerk of the Court is respectfully requested to terminate the pending motion, (Dkt.
No. 80), close this case, and mail a copy of this Opinion to Plaintiff.
SO ORDERED.
Dated: February~' 2019
White Plains, New York
E

ITED STATES DISTRICT JUDGE

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