Maldonado v. Fischer et al

Filing 86

ORDER granting in part and denying in part 78 Motion for Summary Judgment; denying 80 Motion for Partial Summary Judgment. Signed by Hon. H. Kenneth Schroeder Jr. on 11/06/2019. (KER)(Mailed to plaintiff)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

ANGEL MALDONADO, 03-R-2519,
Plaintiff,
-v-

11-CV-1091Sr

SUSANNA MATTINGLY
Parole Officer,
Defendant.

DECISION AND ORDER
Pursuant to 28 U.S.C. § 636(c), the parties have consented to the
assignment of this case to the undersigned to conduct all proceedings in this case,
including the entry of final judgment. Dkt. #15.

Plaintiff’s third amended complaint, prepared pro se, pursuant to 42
U.S.C. § 1983, alleges that the imposition of sex offender conditions by Parole Officer
Susanna Mattingly during his release on parole from February 24, 2010 through March
16, 2010 and September of 2010 through May of 2011 constitute a violation of the ex
post facto clause of the United States Constitution; 1 a violation of plaintiff’s
constitutional right to substantive and procedural due process; and a violation of
plaintiff’s right to free association. Dkt. #52. Plaintiff seeks monetary damages. Dkt.
#52, p.19.

1

#5.

This claim was dismissed with prejudice by Order entered September 24, 2012. Dkt.

Currently before the Court is defendant Susanna Mattingly’s motion for
summary judgment (Dkt. #78), and plaintiff’s motion for summary judgment. Dkt. #80.
For the following reasons, defendant’s motion is granted in part and plaintiff’s motion is
denied.

FACTS
Plaintiff pled guilty to a misdemeanor charge of sexual misconduct
pursuant to N.Y. Penal Law § 130.20(2), in satisfaction of a charge of rape, third
degree, and was sentenced to three years of probation. Dkt. #25, p.16. Plaintiff’s
probation was discharged on March 16, 1999. Dkt. #1, ¶ 8. Plaintif f asserts that the
charges arose from his consensual sexual relationship with a girlfriend when he was 22
and she was 16. Dkt. #80, pp.15 & 23.

In 2002, the New York State Legislature amended New York’s Penal Law
to include a conviction under Penal Law § 130.20 within the definition of a sex offense
for purposes of New York’s Sex Offender Registration Act. 2002 Sess. Law News of
N.Y. Ch. 11 (S. 6263-A) (McKinney’s).

On April 25, 2003, following his guilty plea to a scheme to defraud, first
degree; three counts of grand larceny, third degree; attempted petit larceny; tampering
with physical evidence; compounding a crime; coercion, second degree; bribing a
witness; tampering with a witness, fourth degree; three counts of criminal
impersonation, second degree; harassment, second degree; and three counts of
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aggravated harassment in the second degree, in satisfaction of Indictment No. 2340/99
and bail jumping, second degree, in satisfaction of Indictment No. 891/01, plaintiff was
sentenced to an aggregate indeterminate term of imprisonment of 5 to 15 years. Dkt.
#80-1, p.3. Plaintiff had portrayed himself on the internet as a police detective with the
New York City Police Department to meet women from whom he obtained significant
amounts of money. Dkt. #45, p.8. Plaintiff was released from custody in May of 2009.

By letter dated October 22, 2009, Dominic A. Dispenza, LCSW-R,
completed a sexual offender evaluation and risk assessment of plaintiff and determined
that plaintiff
displayed symptoms of an antisocial personality disorder. He
was deceitful, took no responsibility for his behaviors,
showed no remorse, and completely lacked empathy.
Furthermore, he has demonstrated impulsivity,
aggressiveness, and a reckless disregard for the safety of
others and himself.
2. Mr. Maldonado claimed that he does not have a sex
offense problem and denied the possibility of relapse. He
denied he committed a sexual offense and claimed to this
evaluator that he had married his victim in Puerto Rico prior
to his conviction and she had their child when she was 17
years old. Mr. Maldonado is reported to have told his
probation officer that he did not marry this victim until after
he had been convicted of his offense against her.
***
4. Mr. Maldonado demonstrated that he is not amenable to
sexual offender treatment. He displayed evasiveness, a
superficial manner, hostility, and a lack of cooperation during
this evaluation. Furthermore, he was previously expelled
from another sex offender treatment program and appears
to have tried to hide that fact during this evaluation.
Dkt. #25, p.27.
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Plaintiff violated parole in November of 2009. Dkt. #80, p.4, ¶ 4. A
Violation of Release Report charged plaintiff with 7 violations of the terms and
conditions of his release, including failure to complete sex offender treatment, lying to
his parole officer about sex offender treatment, lying to his parole officer about
employment, failing to provide his cell phone number to his parole officer and lying to
his parole officer about his cell phone number. 11-CV-717 at Dkt. #36-1, p.197. 2 On
November 24, 2009, plaintiff pled guilty to the charges of failing to provide his parole
officer with his cell phone number and lying to his parole officer and was sentenced to
time served plus three months. 11-CV-717 at Dkt. #36-1, p.198.

Parole Officer (“PO”), Susanna Mattingly recommended plaintiff for
Discretionary Sex Offender (“DSO”), status on February 11, 2010. Dkt. #78-4, ¶ 21 &
Dkt. #78-5, ¶ 16. P.O. Mattingly made this recommendation based upon plaintiff’s past
criminal conviction for sexual misconduct with a minor. Dkt. #78-4, ¶ 20.

On February 11, 2010, an unidentified individual, on behalf of Phillip
Overfield, the Area Supervisor for the Niagara Falls Areas Office of the New York State
Department of Corrections and Community Supervision (“NYSDOCCS”), signed a
Designation Regarding Discretionary Sex Offender Status form advising that,

2

In this action, plaintiff alleged that PO Mattingly, inter alia, delayed his re-release to
parole without affording him due process. 11-CV-717. The Court of Appeals for the Second
Circuit affirmed district court’s determination that it was reasonable and permissible for the New
York State Division of Parole to require approval of his residence as a special condition of
release. Maldonado v. Evans, 654 Fed. App’x 505 (2d Cir. 2016).

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Based on case review, [Angel Maldonado] was determined
to be a discretionary sex offender. Please take necessary
steps to ensure that the case remains in intensive sex
offender supervisory status until maximum expiration or
other discharge from supervision and set the “Supervised as
a Sex Offender” indicator to: “yes, discretionary.”
Dkt. #78-5, ¶ 17 & Dkt. #80-1, p.7.

Supervisor Overfield declares that a “DSO is a parolee who is not on
parole for a sex crime, but whose criminal history includes a prior sex offense conviction
or the commission of a crime which had a sexual component.” 78-4, ¶ 8. He further
declares that a DSO designation “is not a public designation and does not involve
registering with the State Sex Offender Registry,” but otherwise subjects a parolee “to
the same conditions of parole as a convicted sex offender.” Dkt. #78-5, ¶¶ 10 & 12.

Plaintiff objects to the following conditions of parole, commonly referred to
as sex offender conditions, which were imposed upon his release from prison on
February 24, 2010:

4.

I will enter, attend, participate in, cooperate with
and successfully complete the Sex Offender
counseling program at Mid-Erie Counseling and
Treatment as directed by my Parole Officer. I will
obey the rules of the program. I will keep all my
appointments, the first of which is _________.

20. I will have no contact of any kind, in person, by
phone, by letter or by third party with any person
under 18 years of age without the prior written
approval of my Parole Officer.
21. I will not call any sexually explicit (900/976)
telephone services, including such places as
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Quest, Ashley Madison and chat lines. I will not
enter or remain in any areas of sexual activity,
such as adult bookstores, topless bars, massage
parlors, sex shops or adult movie houses. I will
submit copies of my telephone bill to the Parole
Officer upon request.
22. I shall not enter or remain within 1,000 feet of
places where any person under the age of 18 may
congregate, including but not limited to: Schools,
Playgrounds, Video Arcades, Sports Fields, Malls,
Movie Theaters, Bowling Alleys, etc., without the
prior approval from my Parole Officer.
23. I will notify my Parole Officer when I establish a
relationship with a significant other, and I will
inform the other party of my criminal history
regarding sexual offenses.
25. I shall not purchase, engage or be in possession
of pornographic materials or erotic magazines,
tapes, photographs, “X” rated films/DVDs/videos.
This includes, but limited to, such content on all
telecommunication devices and publications as
Playboy, Hustler, North American Man-Boy Love
Association, Pedophile information exchange,
Pedo-Alert Network or any other similar
publications.
26. I shall not have children’s toys or video games,
video tapes, children’s DVDs or excessive
amounts of candy or child-like objects or child-like
images or photos, or any type of sex toy in my
possession, without the prior knowledge and
permission of my Parole Officer.
27. I shall not participate in any on-line computer
service that involves the exchange of
pornographic electronic photos or messages, or
establishes sexual encounters or liaisons.
28. I shall not use, own or possess a computer or any
type of equipment with “on-line” capabilities.
30. I will not use or possess any medications or
supplements designed or intended for the purpose
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of enhancing sexual performance or treating
erectile dysfunction without the written permission
of my Parole Officer and the approval of his Area
Supervisor.
31. I will participate in the Division of Parole’s
polygraph program as directed by my Parole
Officer. . . .
32. I will not have any Premium Channels on any of
the televisions that I have access to in my Parole
approved residence. Such Premium Channels
include but are not limited to, The Movie Channel,
Showtime, Cinemax and Home Box Office.
36. I will have no contact of any kind, in person,
phone[,] letter, written, text messaging,
electronically, third person or by any other means
with a one, Valerie Cole, without the written
permission of my Parole Officer.
Dkt. #52-1, pp.1-5. The form setting forth the special conditions was signed by plaintiff
and by an unknown parole officer “for Mattingly.” Dkt. #52-1, p.5.

PO Mattingly supervised plaintiff from his release from prison on February
24, 2010 until a warrant was issued for violation of parole on March 16, 2010. Dkt. #784, ¶ 24 & Dkt. #80, ¶¶ 7-8. A Violation of Release Report dated March 16, 2010
charged plaintiff with 16 violations of the terms and conditions of his release, including
multiple charges of failure to be truthful in his discussions with his parole officer and
failure to comply with rules, resulting in plaintiff’s discharge from his residential
program. 11-CV-717 at Dkt. #36-1, pp.192-202. A Final Parole Violation Hearing was
conducted on April 8, 2010. 11-CV-717 at Dkt. #36-1, p.157. Plaintif f pled guilty to a
violation pertaining to his discharge from the residential program in return for a
sentence of time served plus three months. 11-CV-717 at Dkt. #62-1, p.4.
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On June 30, 2010, P.O. Mattingly received a telephone call from Laura
O’Brien who claimed that plaintiff had been incarcerated with her son and that plaintiff
requested that Ms. O’Brien send 25 $1,000 money orders to plaintiff’s girlfriend, Valerie
Cole, so that plaintiff could link the woman’s son with a lawyer. Dkt. #45, p.10. Ms.
O’Brien completed a supporting deposition setting forth the new allegations against
plaintiff and Ms. Cole on July 12, 2010. Dkt. #80-1, p.8.

Plaintiff appeared before the Board of Parole on September 23, 2010 and
was afforded a release date of September 29, 2010, at which time he commenced
supervision in the State of Florida. Dkt. #36-1, pp.179-180 & Dkt. #68, ¶ 25. PO
Mattingly declares that she was not involved in plaintiff’s parole on September 29, 2010.
Dkt. #78-4, ¶¶ 26-30. Supervisor Overfield declares that PO Diana Wingfield-Sherry,
the parole officer at Livingston Correctional Facility, the facility from which plaintiff was
released, oversaw plaintiff’s release on parole and transfer to Florida, where plaintiff
was subjected to Florida’s Sex Offender Special Conditions. Dkt. #78-5, ¶¶ 20 & 27-28
& Dkt. #80, pp.18-19.

A warrant was issued for plaintiff’s arrest on February 7, 2011 after
plaintiff failed to report, left his employment and vacated his address without his parole
officer’s permission. 11-CV-717 at Dkt. #36-1, p.179.

Plaintiff was stopped by the Sheriff’s Department in Rutherford,
Tennessee on May 10, 2011 and extradited to New York. 11-CV-717 at Dkt. #36-1,
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pp.246-247. Plaintiff pled guilty to the charge of failing to report to his parole officer and
was assessed six months of delinquent time. 11-CV-717 at Dkt. #36-1, pp.228-244.

On August 17, 2012, plaintiff was convicted of grand larceny in the third
degree in violation of New York Penal Law § 155.35 and sentenced as a second f elony
offender to an indeterminate term of imprisonment of 3½ to 7 years, consecutive to any
parole time, with respect to the scheme to send $25,000 to his girlfriend, Valerie Cole.
People v. Maldonado, 122 A.D.3d 1379 (4 th Dep’t 2014), leave to appeal denied, 27
N.Y.3d 1002 (2016).

Plaintiff was released on parole to Florida on or about January 18, 2018.
nysdoccslookup.doccs.ny.gov. The maximum expiration date of his sentence is
November 14, 2024. Id.

DISCUSSION AND ANALYSIS
Summary Judgment
Summary judgment is appropriate "if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law." Fed.R.Civ.P. 56(c). “In reaching this determination, the
court must assess whether there are any material factual issues to be tried while
resolving ambiguities and drawing reasonable inferences against the moving party, and

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must give extra latitude to a pro se plaintiff.” Thomas v. Irvin, 981 F. Supp. 794, 798
(W.D.N.Y. 1997) (internal citations omitted).

A fact is "material" only if it has some effect on the outcome of the suit.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see Catanzaro v. Weiden,
140 F.3d 91, 93 (2d Cir. 1998). A dispute regarding a material fact is genuine "if the
evidence is such that a reasonable jury could return a verdict for the nonmoving party."
Anderson, 477 U.S. at 248; see Bryant v. Maffucci, 923 F.2d 979 (2d Cir.), cert. denied,
502 U.S. 849 (1991).

Once the moving party has met its burden of ?demonstrating the absence
of a genuine issue of material fact, the nonmoving party must come forward with
enough evidence to support a jury verdict in its favor, and the motion will not be
defeated merely upon a <metaphysical doubt’ concerning the facts, or on the basis of
conjecture or surmise.” Bryant, 923 F.2d at 982 (internal citations omitted). A party
seeking to defeat a motion for summary judgment
must do more than make broad factual allegations and
invoke the appropriate statute. The [party] must also show,
by affidavits or as otherwise provided in Rule 56 of the
Federal Rules of Civil Procedure, that there are specific
factual issues that can only be resolved at trial.
Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995).

Discretionary Sex Offender Status
The individual conditions which plaintiff challenges are a direct
consequence of the determination to categorize plaintiff as a discretionary sex offender.
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“According to the New York State Parole Handbook, ‘[a] discretionary sex offender is
generally a person who has a history of sexual offense or pattern of inappropriate
sexual behavior, but is not subject to the Sex Offender Registry for any number of
reasons.’” Webster v. v. Himmelbach, 271 F. Supp.3d 458, 462, n.1 (W .D.N.Y. 2017)
(internal quotations omitted). NYSDOCCS Directive 8304, which “sets forth
departmental policy ‘to identify and provide intensive supervision strategies to both
individuals subject to the New York State Sex Offender Registry and to individuals with
a history of sexually inappropriate behaviors so that the interests of public safety and
the supervision needs of the releasees are served,” defines a discretionary sex offender
as “[a]n offender found upon case review and determination . . . to meet Department
established criteria for specialized supervision as a sex offender.” Gordon v. LaClair, 48
Misc. 3d 926, 929 (S.Ct. Franklin Cty 2015). That criteria includes individuals with a
current or prior crime of conviction that is a sexually motivated offense, but not an
offense included in the New York State Sex Offender Registry, where “[i]t appears that
the offender and/or community would benefit from intensive supervision practices that
incorporate specialized sex offender ‘containment’ strategies.” Id. The Directive does
not mandate the application of any specific parole condition to discretionary sex
offenders. Id. at 930.

Personal Involvement
PO Mattingly seeks summary judgment on the ground that she had no
personal involvement in the supervision of plaintiff’s parole or the imposition of
conditions for such parole between September of 2010 through May of 2011. Dkt. #78-11-

1, p.4. PO Mattingly further argues that Supervisor Overfield was the individual who
designated plaintiff as a discretionary sex offender. Dkt. #78-1, pp.7-8.

Plaintiff responds that Susan Mattingly recommended that plaintiff be
supervised as a DSO and supervised plaintiff’s parole in February of 2010. Dkt. #80,
pp.37-39.

It is well settled that the personal involvement of defendants in an alleged
constitutional deprivation is a prerequisite to an award of damages under
§ 1983. Gaston v. Coughlin, 249 F.3d 156, 164 (2d Cir. 2001); Colon v. Coughlin, 58
F.3d 865, 873 (2d Cir. 1995); Al-Jundi v. Estate of Rockefeller, 885 F.2d 1060, 1065 (2d
Cir. 1989). In the instant case, PO Mattingly declares that she made the
recommendation that plaintiff be designated as a DSO. Dkt. #78-4, ¶ 21 & Dkt. #78-5,
¶ 16. Moreover, PO Mattingly supervised plaintiff and charged him with violations of the
terms and conditions of his parole between February 24, 2010 and March 16, 2010.
Dkt. #78-4, ¶ 24 & Dkt. #80, ¶ 7-8. This is sufficient to establish Susanna Mattingly’s
personal involvement in the imposition of DSO parole conditions challenged by plaintiff.
See Farrell v. Burke, 449 F.3d 470, 484 (2d Cir. 2006) (enforcement of special
condition of parole constitutes personal involvement).

Qualified Immunity
Defendant argues that she is entitled to qualified immunity because at the
time of the designation, there was no judicial determination that the imposition of sex
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offender conditions implicated a liberty interest and there was no clear right to a hearing
prior to a determination to designate someone as a discretionary sex offender. Dkt.
#78-1, p.14.

Plaintiff responds that qualified immunity is inappropriate because there
are material questions of fact as to whether defendant’s actions were objectively
reasonable given that plaintiff was not convicted of a sex offense and whether the
special conditions of parole imposed upon him were reasonably related to the nature
and circumstances of plaintiff’s crimes. Dkt. #80, p.41.

“Qualified immunity shields government officials from claims for money
damages unless a plaintiff adduces facts showing that (1) the official violated a
statutory or constitutional right, and (2) the right was clearly established at the time of
the challenged conduct.” Mara v. Rilling, 921 F.3d 48, 68 (2d Cir. 2019) (internal
quotations omitted). If the answer to the first question is no, there is no need for further
inquiry because a defendant has no need for immunity absent a viable constitutional
claim. Id. “But even if the answer is yes, or not definitively no, a defendant may still be
entitled to qualified immunity if the right was not clearly established at the time of his
challenged actions.” Id. “Indeed, a court that decides this second question in a
defendant’s favor may award qualified immunity without conclusively answering the
first.” Id. “Only Supreme Court and Second Circuit precedent existing at the time of the
alleged violation is relevant in deciding whether a right is clearly established.” Moore v.
Vega, 371 F.3d 110, 114 (2d Cir. 2004).
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“A clearly established right is one that is ‘sufficiently clear that every
reasonable official would have understood that what he is doing violates that right.’”
Mullenix v. Luna, __ U.S. __, 136 S. Ct. 305, 308 (2015), quoting Reichle v. Howards,
566 U.S. 658, 664 (2012). Thus, the right allegedly violated must be established not as
a broad general proposition, but in a particularized sense so that the contours of the
right are clear to a reasonable official. Reichle, 566 U.S. at 665 (internal quotations
omitted). In Reichle, for example, the Supreme Court held that although it was clear at
the time of plaintiff’s arrest that the First Amendment prohibited government officials
from retaliating against an individual for his speech, it was not clearly established that
an individual was protected from a retaliatory arrest that was otherwise supported by
probable cause. Id. The standard is deliberately forgiving to afford public officials
breathing room to make reasonable but mistaken judgments without fear of liability.
Mara, 921 F.3d at 68. “In short, if at least some reasonable officers in the defendant’s
position could have believed that the challenged conduct was within the bounds of
appropriate police responses, the defendant officer is entitled to qualified immunity.” Id.
(internal quotations omitted). “Indeed, the Supreme Court has repeatedly observed that
qualified immunity protects ‘all but the plainly incompetent or those who knowingly
violated the law.’” Id., quoting Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011).

Due Process
The Due Process Clause of the Fourteenth Amendment to the United
States Constitution provides that “[n]o State shall . . . deprive any person of life, liberty,
or property, without due process of law . . . “ U.S. CONST. amend. XIV. The Due
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Process Clause contains both a procedural and substantive component. Zinermon v.
Burch, 494 U.S. 113, 125 (1990). The procedural component bars the deprivation of a
constitutionally protected interest in life, liberty or property without due process of law,
while the substantive component bars certain arbitrary, wrongful government actions
regardless of the fairness of the procedures to implement them. Id. (internal quotation
omitted); See Cty. of Sacramento v. Lewis, 523 U.S. 833, 845-46 (1998) (“[T]he
touchstone of due process is protection of the individual against arbitrary action of
government, whether the fault lies in a denial of fundamental procedural fairness or in
the exercise of power without any reasonable justification in the service of a legitimate
governmental objective.”) (internal quotations omitted).

Procedural Due Process
Plaintiff argues that parole officers have no authority to classify him as a
sex offender and that this label has imposed both a stigma and tangible burden upon
him. Dkt. #52, pp.8-9. He further complains that he was not afforded notice of the
special conditions, an explanation as to why they were being imposed or an opportunity
to dispute the imposition of the special conditions. Dkt. #52, p.17 & Dkt. #80, p.36.
Plaintiff claims that he has no history of sexual misbehavior subsequent to the sexual
misconduct conviction. Dkt. #80, p.24.

Defendant argues that plaintiff has no liberty interest in any specific
condition of parole and, therefore, no right to notice or a hearing regarding such
conditions. Dkt. #78-1, pp.8 & 12. Even if plaintiff was entitled to due process relating to
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his designation as a discretionary sex offender, defendant argues that plaintiff had the
opportunity to challenge such designation through an article 78 proceeding. Dkt. #78-1,
p.16.

Plaintiff responds that an article 78 proceeding was not an adequate post
deprivation remedy because such a proceeding became moot each time he was reincarcerated. Dkt. #80, p.42.

Procedural due process claims are analyzed in two steps: the first asks
whether there exists a liberty or property interest which has been interfered with by the
State; the second examines whether the procedures attendant upon that dep rivation
were constitutionally sufficient. Kentucky v. Dep’t. of Corrs., 490 U.S. 454, 460 (1989).
The Court of Appeals for the Second Circuit has consistently held that, under New
York’s parole scheme, “plaintiffs have 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); See also, Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7
(1979) (“There is no constitutional or inherent right of a convicted person to be
conditionally released before the expiration of a valid sentence.”).

As a result, “it is well-established that ‘the [New York] Parole Board’s
discretionary imposition of special conditions is not subject to judicial review in the
absence of a showing that the board or its agents acted in an arbitrary and capricious
manner.’” Maldonado v. Fischer, No. 11-CV-1091, 2012 WL 4461647, at *4 (W.D.N.Y.
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Sept. 24, 2012), quoting Walker v. Mattingly, 09-CV-845, 2012 WL 1160772, at *6
(W.D.N.Y. Apr. 5, 2012); See Nash v. King, No. 13-CV-753, 2015 WL 1461291, at *3
(W.D.N.Y. March 30, 2015) (“Federal courts have consistently held that a parolee has
no constitutionally protected interest in being free from special conditions of release”)
(internal quotation omitted); Cooper v. Dennison, No. 08-CV-6238, 2011 WL 1118685,
at *11 (W.D.N.Y. Mar. 24, 2011) (“parolee . . . has no liberty interest in avoiding the
imposition of special conditions of parole.”); Boddie v. Chung, No. 09-CV-4789, 2011
WL 1697965, at *1 (E.D.N.Y. May 4, 2011) (“A parolee has no constitutionally protected
interest in being free of a special condition of parole.”); Pena v. Travis, No. 01 Civ.
8534, 2002 WL 31886175, at *13 (S.D.N.Y. Dec. 27, 2002) (“Because the imposition of
special conditions is left to the discretion of the Board of Parol and parole officers,
plaintiff does not have a protected liberty interest in being free from special
conditions.”). Thus, to the extent that plaintiff complains about the special conditions of
release imposed upon him as a result of his designation as a discretionary sex
offender, defendant’s motion for summary judgment is granted because plaintiff does
not have a liberty interest in being free from any such conditions.

Plaintiff fares no better if his designation as a discretionary sex offender is
considered separate and apart from the special conditions of parole imposed upon
plaintiff as a consequence of that designation. As explained by the Court of Appeals in
Vega v. Lantz, “while it may be the case that, in certain circumstances, misclassification
as a sex offender results in stigma plus, the possibility is of no particular assistance to
[plainitff] because he has not established a threshold req uirement - the existence of a
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reputation-tarnishing statement that is false.” 596 F.3d 77, 82 (2d Cir. 2010). Thus,
although “it continues to be the case that wrongly classifying an inmate as a sex
offender may have a stigmatizing effect which implicates a constitutional liberty
interest,” Id. at 81-82, plaintiff in the instant case has been convicted of a sex offense,
to wit, sexual misconduct in violation of N.Y. Penal Law § 130.20(2). Therefore, this
case is distinct from Singleton v. Doe, where the district court denied summary
judgment to parole officers who designated plaintiff as a discretionary sex offender
based upon prison disciplinary proceedings finding plaintiff guilty of indecent exposure
and lewd acts. 210 F. Supp.3d 359 (E.D.N.Y. 2016). In any event, the district court in
Singleton determined that qualified immunity was appropriate because neither the
Court of Appeals for the Second Circuit nor the Supreme Court had made clear whether
a parolee’s liberty interest in avoiding a designation as a sex offender extended to
designation as a discretionary sex offender. Id. at 371; See also Webster, 271 F.
Supp.3d at 464 (“it is an unsettled question in this Circuit as to whether a prisoner holds
a liberty interest in being designated as a DSO.”); Gordon v. Semrug, No.14-CV-324,
2017 WL 2241966, at *6 (W.D.N.Y. May 23, 2017) (“But although a prisoner parolee
may have a liberty interest in avoiding the stigma and tangible impairment associated
with a registered sex offender designation, neither the Second Circuit nor the Suprem e
Court has made clear that the interest extends to a DSO designation.”). As “[p]laintiff’s
right to receive due process prior to being designated a discretionary sex offender is not
clearly established,” defendant is entitled to qualified immunity. Gordon, 2017 WL
2241966, at * 6 (collecting cases).

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Substantive Due Process
Plaintiff claims that the imposition of sex offender conditions violates his
constitutionally protected right to substantive due process because the conditions
imposed upon him are arbitrary and capricious rather than reasonably related to the
nature and circumstances of the offenses for which he is currently on parole or the
history and characteristics of his prior conviction for sexual misconduct. Dkt. #52, p.6 &
Dkt.#80, pp.15 & 21. Plaintiff notes that he completed his sentence of probation on the
sexual misconduct conviction, which did not qualify as a sex offense at the time of his
conviction, without any requirement for sex offender counseling or any other condition
currently being imposed upon him. Dkt. #52, p.7 & Dkt. #80, p. 30. Plaintif f argues that
sex offender counseling is intrusive and cannot be successfully completed unless
plaintiff admits that he is a sex offender. Dkt.#80, p.25. Plaintiff also claims that the
restriction of his ability to have contact with his wife, Valerie Cole, his children, or any
person under the age of 18, is a violation of his First Amendment right to association
and that he should not be required to disclose his criminal history to potential romantic
partners or to disclose the identity of potential romantic partners to his parole officer.
Dkt. #52, pp.15-16 & Dkt. #80, pp.16 & 32-33.

Defendant responds that there is a connection between the facts of
plaintiff’s criminal history and the special conditions imposed which preclude any
potential that defendant acted in an arbitrary and capricious manner. Dkt. #78-1, p.9.

The substantive component of the Due Process Clause of the Fourteenth
Amendment protects individual liberty against certain government actions regardless of
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the procedures used to implement them. Collins v. City of Harker Heights, Texas, 503
U.S. 115, 125 (1992). However, it is well-established that substantive due process
protections extend only to those interests that are “implicit in the concept of ordered
liberty,” Palko v. Connecticut, 302 U.S. 319, 325 (1937), overruled on other grounds by
Benton v. Maryland, 395 U.S. 784 (1969), and “so rooted in the tra ditions and
conscience of our people as to be ranked as fundamental.” Reno v. Flores, 507 U.S.
292, 303 (1993).

“The most familiar of the substantive liberties protected by the Fourteenth
Amendment are those recognized by the Bill of Rights.” Planned Parenthood of
Southeastern PA v. Casey, 505 U.S. 833, 848 (1992). More specifically, “[t]he
protections of substantive due process have for the most part been accorded to matters
relating to marriage, family, procreation, and the right to bodily integrity.” Albright v.
Oliver, 510 U.S. 266, 271 (1994), citing Casey, 505 U.S. at 847-49 (1992) (describing
cases in which substantive due process rights have been recognized); See Roberts v.
U.S. Jaycees, 468 U.S. 609, 617-18 (1984) (recognizing that “choices to enter into and
maintain certain intimate human relationships,” such as marriage, “must be secured
against undue intrusion by the State.”).

“To establish a violation of substantive due process rights, a plaintiff must
demonstrate that the state action was ‘so egregious, so outrageous, that it may fairly be
said to shock the contemporary conscience.’” Okin v. Vill. of Cornwall-On-Hudson
Police Dep’t, 577 F.3d 415, 431 (2d Cir. 2009), quoting Lewis, 523 U.S. at 847, n.8. To
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satisfy this standard, a plaintiff must show that the government decision being
challenged “was arbitrary or irrational or motivated by bad faith.” Rosa R. v. Connelly,
889 F.2d 435, 439 (2d Cir. 1989), cert. denied, 496 U.S. 941 (1990). Within the prison
context, very few conditions have been deemed sufficiently shocking to violate
substantive due process rights, for example, transfer from prison to a mental hospital
and involuntary administration of psychotropic drugs. Tavares v. Amato, 954 F. Supp.2d
79, 98 (N.D.N.Y. 2013), citing Sandin v. Connor, 515 U.S. 472, 479 n.4 (1995).

Mandatory sex offender programming for an individual convicted of a sex
offense does not rise to the level of a substantive due process violation. See Miller v.
Annucci, 9:19-CV-0030, 2019 WL 2370295, at *13 (N.D.N.Y. June 5, 2019); Blake v.
Fischer, No. 09-CV-266, 2010 WL 2522198, at *13 (N.D.N.Y. Mar. 5, 2010); But See
Yunus v. Robinson, No. 17-CV-5839, 2019 WL 168544, at *9 (S.D.N.Y. Jan. 11, 2019)
(parolee “has a substantive liberty interest in not being labeled as a sex offender when
he has committed no sexual offense.”). As plaintiff in the instant case has committed a
sex offense, to wit, sexual misconduct in violation of N.Y. Penal Law § 130.20(2), the
Court finds that the decision to impose sex offender counseling upon plaintiff’s parole
conditions is not irrational or arbitrary.

Limitations on contact with a spouse or child are analyzed using the
framework of substantive due process, which is subject to the same analysis as a
familial association claim under the First Amendment. See Doe v. Cappiello, 758 Fed.
App’x. 181, 184 (2d Cir. 2019) (First Amendment familial association and Fourteenth
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Amendment substantive due process subject to identical analysis). Under this analysis,
“[c]onditions of release that restrict the right to intimate association must be reasonably
and necessarily related to the legitimate interests of the parole regime, such as
rehabilitation and protection of the public, and tailored in light of the conduct for which
the individual was convicted.” Harris v. N.Y. Div. of Parole, 9:18-CV-1435, 2019 WL
1958017, at *4 (N.D.N.Y. May 1, 2019) (internal quotations and alteration omitted).

In Bostic v. Jackson, the district court granted defendants’ motion for
summary judgment as to plaintiff’s challenge to a condition of parole which limited
contact and prevented him from residing with his wife where she was the victim of the
crime for which plaintiff was convicted. No. 9:04-CV-676, 2008 W L 1882696, at *4-5
(N.D.N.Y. Apr. 24, 2008). In the instant case, however, plaintiff’s wife at the time this
condition was instituted was Kimberly Maldonado. See Maldonado v. Evans, No. 11CV-717, 2015 WL 1431646, at * (W.D.N.Y. March 27. 2015) (setting forth how plaintiff’s
wife, Kimberly Maldonado, deceived parole officials regarding plaintiff’s proposed
residence, which was around the corner from Ms. Cole’s residence), aff’d, 654 Fed.
App’x 505 (2d Cir. 2016).

In Matusick v. Erie County Water Authority, the Court of Appeals for the
Second Circuit noted that many courts had limited the constitutional protection to
marriage, but determined that it should extend to romantic relationships involving deep
attachments, including a relationship of bethrothal. 757 F.3d 31, 58-59 (2d Cir. 2014).
As that case was not decided until February 25, 2014, however, even assuming that
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plaintiff’s relationship with Valerie Cole would qualify as entitled to constitutional
protection under Matusick, the right to constitutional protection of such a relationship
was not clearly established at the time the parole condition was imposed. As a result,
defendant is entitled to qualified immunity for plaintiff’s claims for money damages
arising from the imposition of the no contact condition between himself and Valerie
Cole.

In contrast, it is well established that a parent’s interest in maintaining a
relationship with his or her child is a fundamental liberty interest protected by
substantive due process. Doe v. Lima, 270 F. Supp.3d 684, 702 (S.D.N.Y. 2017), citing
United States v. Myers, 426 F.3d 117, 125 (2d Cir. 2005), aff’d, Doe v. Cappiello, 758
Fed app’x 181 (2d Cir. 2019). Restrictions upon such a relationship m ust be narrowly
tailored to serve a compelling government interest. Myers, 426 F.3d at 126. Thus,
“parole conditions that bar a parent from all contract with a child or condition such
contact on a parole officer’s approval implicate a fundamental liberty interest in a
familial relationship, are subject to strict scrutiny, require individualized justification
based on the threat posed by the defendant to the child, and require that the releasee
be given an opportunity to be heard before their imposition.” Lima, 270 F. Supp.3d at
703. Absent an individualized inquiry into whether an individual’s sexual proclivities
pose a threat to his child, the imposition of a harsh condition of supervised release that
either prohibits interaction with his children or makes such interaction subject to
supervision by a person approved by the probation officer violates the individual’s
substantive due process rights. United States v. McGeoch, 546 Fed. App’x 44, 49 (2d
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Cir. 2013). Therefore, to the extent that plaintiff can establish that he demonstrated “a
full commitment to the responsibilities of parenthood,” and “played an active role in the
life of his son,” prior to his incarceration, defendant is required to establish that the
condition was narrowly tailored to protect plaintiff’s children. Myers, 426 F.3d at 128.
Accordingly, defendant’s motion for summary judgment is denied with respect to
plaintiff’s allegation that the special conditions of parole prevented him from contact
with his children.

To the extent that plaintiff complains that his parole conditions prevented
him from associating with family members with young children, however, qualified
immunity is granted because the contours of any such right remain unclear. See Yunus,
2019 WL 168544, at *18-19 (finding no fundamental right to contact with extended
family members). Furthermore, the notification provision is a reasonable restriction on
plaintiff’s First Amendment rights. See United States v. Reeves, 591 F.3d 77, 82 (2d
Cir. 2010) (“We have no doubt that in the appropriate circumstance a court . . . could
require a defendant to notify third-parties of risks arising from the defendant’s criminal
record, personal history, or characteristics.”); Muhammad v. Evans, No. 11-CV-2113,
2014 WL 4232496, at *10 (S.D.N.Y. Aug. 15, 2014) (upholding condition requiring
probationer to notify his probation officer of intimate relationships).

First Amendment
Plaintiff challenges the parole restrictions impacting his ability to enjoy
public spaces, including church. Dkt. #52, p.16 & Dkt. #80, ¶ 19 & p.33. Plaintif f further
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argues that the ban on computer usage prevents him from pursuing his career as a
musician and that the ban on premium cable prevents him from enjoying sports such as
boxing. Dkt. #80, p.27.

“It is well established that prisoners have a constitutional right to
participate in congregate religious services.” Salahuddin v. Coughlin, 993 F.2d 306, 308
(2d Cir. 1993). “The same goes for parolees, who are effectively still prisoners vis-á-vis
their constitutional rights.” Muhammad v. Jenkins, No. 12 Civ. 8525, 2013 WL 5225573,
at *10 (S.D.N.Y. Sept. 13, 2013). “Since Salahuddin, then, the right to participate in
congregate religious services has been settled law, and a parole officer . . . is charged
with knowledge thereof” and cannot, therefore, reasonably believe that it was in his
power to bar plaintiff from participating in communal worship altogether.” Id.; See
United States v. Hernandez, 209 F. Supp.3d 542, 546 (E.D.N.Y. 2016) (although the
First Amendment rights of paroled sex offenders are circumscribed, and conditions
preventing defendants convicted of sex offenses from associating with minors have
been upheld, no compelling government interest justifies prohibiting attending religious
services where a minor is present). Thus, defendant is not entitled to qualified immunity
with respect to plaintiff’s claim that the conditions of parole prevented him from
attending communal worship.

In Pakingham v. North Carolina, the Supreme Court held that registered
sex offenders cannot be routinely or categorically barred from social media. __ U.S. __,
137 S. Ct. 1730, 1737 (2017) (“to foreclose access to social media altogether is to
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prevent the user from engaging in the legitimate exercise of First Amendment rights.”);
See Yunus, 2019 WL 168544, at *16 (“Under Packingham, blanket limitations on an
individual’s ability to access social media will receive intermediate scrutiny, even when
imposed as conditions of parole.”). Even before Packingham, the Court of Appeals for
the Second Circuit rejected total bans on internet access as conditions of supervised
release. United States v. Eaglin, 913 F.3d 88, 96 (2d Cir. 2019), citing United States v.
Sofsky, 287 F.3d 122, 126 (2d Cir. 2002), and United States v. Peterson, 248 F.3d 79,
82-83 (2d Cir. 2001). However, these cases involve the statutory standard imposed on
federal conditions of supervised release. See Yunis, 2019 WL 168544, at *23. In light
of this different legal standard, these cases “are not controlling authority as to the
constitutional analysis of state parole conditions.” Id. Thus, at least prior to
Packingham, the constitutional right of individuals on probation to access social media
or commercial internet sites was not clearly established. Ennis v. Annucci, 19-CV-501,
2019 WL 2743531, at *8 (N.D.N.Y. July 1, 2019).

As to the condition relating to adult pornography and other sexually
explicit material, including the limitation on premium cable channels, the Court of
Appeals for the Second Circuit has determined that the conditional liberty to which
offenders on supervised release are subject may include a prohibition against
possession of pornographic matter. United States v. Savastio, 777 Fed. App’x 4, 7 (2d
Cir. 2019) (collecting cases).

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Damages
Defendant argues that plaintiff would only be entitled to nominal damages
because, pursuant to 42 U.S.C. § 1997e(e), he has not alleg ed physical injury. Dkt.
#78-1, p.17.

Plaintiff responds that this statue does not apply because his damages
result from his designation as a DSO and the imposition of special conditions of parole.
Dkt. #80, p.43.

Under the Prisoner Litigation Reform Act of 1995 (“PLRA”), “[n]o Federal
civil action may be brought by a prisoner confined in a jail, prison, or other correctional
facility, for mental or emotional injury suffered while in custody without a prior showing
of physical injury or the commission of a sexual act (as defined in section 2246 of Title
18). 42 U.S.C. § 1997e(e). “As used in this section, the term ‘prisoner’ means any
person incarcerated or detained in any facility who is accused of, convicted of,
sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and
conditions of parole, probation, pretrial release, or diversionary program.” 42 U.S.C. §
1997e(h). In the instant case, however, plaintiff is not seeking damages for injury
suffered while confined in a jail, prison or other correctional facility; he is seeking
damages for constitutional injury caused by the imposition of conditions of release on
parole. See, e.g., Greig v. Goord, 169 F.3d 165, 167 (2d Cir. 1999) (district court erred
in classifying parolee as a prisoner under the PLRA). Accordingly, the limitations of 42
U.S.C. § 1997e(e) are not applicable.
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CONCLUSION
For the reasons set forth above, defendant’s motion for summary
judgment (Dkt. #78), is granted except with respect to plaintiff’s claim that the special
conditions of parole prevented him from contact with his children between February 24,
2010 and March 16, 2010 and his claim that he was prevented from attending religious
services between February 24, 2010 and March 16, 2010, and plaintif f’s motion for
summary judgment (Dkt. #80), is denied.

SO ORDERED.

DATED:

Buffalo, New York
November 6, 2019

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