Nash v. King et al

Filing 30

REPORT AND RECOMMENDATIONS re 19 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM and Opposition of Plaintiff's Motion to File an Amended Complaint filed by Hernandez. Objections due fourteen days from receipt. DECISION AND ORDER re 10 MOTION judgment filed by Reeseie Nash, 14 MOTION for Judgment on the Pleadings and to strike the "reply" filed by David Booker, Earl Howard, Saving Grace Ministries Inc., 13 MOTION for Default Judgment as to Hernandez filed by Reeseie Nash, 17 MOTION to Amend/Correct 1 Complaint filed by Reeseie Nash. Signed by Hon. Leslie G. Foschio on 3/30/2015. (SDW)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
______________________________________
REESEIE NASH,
Plaintiff,
v.
TERRY KING, of Grace House,
T. DeGAL, Senior Parole Officer,
P.O. HERNANDEA, New York State Division
of Parole,
SAVING GRACE MINISTRIES, INC.,
EARL HOWARD, and
DAVID BOOKER,

REPORT
and
RECOMMENDATION
----------------------------DECISION
and
ORDER
13-CV-00753A(F)

Defendants.
______________________________________
APPEARANCES:

REESEIE NASH, Pro Se
07-B-3157
126A West Jasper Parrish Drive
Buffalo, New York 14207
ERIC T. SCHNEIDERMAN
New York Attorney General
Attorney for Defendant
STEPHANIE JOY CALHOUN
Assistant Attorney General, of Counsel
Main Place Tower
Suite 300A
350 Main Street
Buffalo, New York 14202

This case was referred to the undersigned by Hon. Richard J. Arcara on July 18,
2014. The matter is presently before the undersigned on Plaintiff’s motions seeking
default judgment filed June 10, 2014 (Doc. No. 10), and July 7, 2014 (Doc. No. 13),
Defendants’ motion for judgment on the pleadings and to strike filed July 10, 2014 (Doc.

No. 14), Plaintiff’s motion to filed an amended complaint (Doc. No. 17), and Defendants’
motion to dismiss (Doc. No. 19). 1
Plaintiff commenced this action pursuant to 42 U.S.C. § 1983, on July 22, 2013,
alleging a single violation of his civil rights while on parole, specifically, that defendants
had failed to protect Plaintiff from serious injury by another parolee living in the same
halfway house as Plaintiff. On December 11, 2013, Plaintiff filed an amended complaint
(Doc. No. 3) (“Amended Complaint”), alleging two claims for violations of his civil rights
while on parole. In particular, Plaintiff alleges that on July 3, 2013, while Plaintiff was
living in a halfway house run by Defendant Saving Grace Ministries Inc. (“SGM”),
Defendants and SGM employees Earl Howard (“Howard”), and David Booker (“Booker”)
(together, “SGM Defendants”), filed to protect Plaintiff from an assault by another SGM
parolee who stabbed Plaintiff, resulting in pain and injuries requiring 248 stitches and
reconstructive surgery. Amended Complaint, First Claim. Plaintiff further asserts that
on May 8, 2013, Defendant Parole Officer Pedro Hernandez (“Hernandez”), failed to
properly inspect SGM, which would have alerted Hernandez that SGM was so
understaffed as to be a dangerous environment, and that such failure effectively
enabled the July 3, 2013 stabbing attack on Plaintiff. Amended Complaint, Second
Claim.
On June 10, 2014, Plaintiff filed a motion seeking entry of default against
Defendant Howard (Doc. No. 10) (“Default Motion – Howard”). On July 7, 2014, Plaintiff
filed a motion seeking entry of default against Defendant Hernandez (Doc. No. 13)

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Although Plaintiff’s motions seeking entry of default against Howard and Hernandez, as well as leave to
file a further amended complaint are nondispositive, whereas the motions for judgment on the pleadings
and to dismiss for failure to state a claim are dispositive, the court addresses all motions in this combined
Report and Recommendation/Decision and Order in the interest of convenience and judicial economy.

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(“Default Motion – Hernandez”). On July 10, 2014, SGM Defendants filed a motion for
judgment on the Pleadings and to Strike (Doc. No. 14) (“SGM Defendants’ Motion for
Judgment on the Pleadings”). On July 30, 2014, Plaintiff filed a Motion for Leave to File
Amended Complaint (Doc. No. 17) (“Motion to Amend”) seeking to add as a defendant
one Alyssa M. Gross (“Gross”), and to assert against Hernandez not only that
Hernandez failed to properly inspect SGM to determine whether it was a safe
environment prior to arranging for Plaintiff to reside there while on parole, but also that
his placement at SGM was improper given that SGM is a Christian church based
organization while Plaintiff is Muslim. On August 6, 2014, Defendant Hernandez filed a
motion to dismiss for failure to state a claim (Doc. No. 19) (“Defendant Hernandez’s
Motion”), attaching Defendant Hernandez’s Memorandum of Law in Support of Motion
to Dismiss for Failure to State a Claim Pursuant to FRCP 12(b)(6) (Dkt. No. 3 & 17) & in
Opposition to Plaintiff’s Motion to Amend His Complaint (Doc. No. 19-1) (“Defendant
Hernandez’s Memorandum”). On August 27, 2014, Plaintiff filed a Reply/Answer
opposing Defendant Hernandez’s Motion (Doc. No. 22) (“Plaintiff’s Response”).
Defendant Hernandez has not filed any reply in further support of his motion. Oral
argument was deemed unnecessary.
On December 12, 2014, all parties to this action filed a stipulation (Doc. No. 24)
(“Stipulation”), agreeing to the voluntary dismissal of the action as against the SGM
Defendants, as well as against Gross whom Plaintiff had sought in his Motion to Amend
to add as a defendant. Accordingly, Plaintiff’s Default Motion – Howard, and Motion to
Amend are, in accordance with the Stipulation, DISMISSED as moot. With regard to
Plaintiff’s Default Motion – Hernandez, it is indicated in an acknowledgment of service

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filed June 17, 2014 (Doc. No. 11), that Hernandez’s answer was due August 6, 2014.
Hernandez’s Motion to Dismiss, however, was, as permitted by Fed.R.Civ.P. 12(a)(4),
filed August 6, 2014 in lieu of an answer. Accordingly, Plaintiff’s Default Motion –
Hernandez is also DISMISSED, as Hernandez’s answer was not required pending the
instant motion to dismiss, as moot. Further, in the Stipulation, Plaintiff agrees to dismiss
all claims he sought to assert against Gross whom Plaintiff sought to add as a
defendant. As such, Plaintiff’s Motion to Amend is also DISMISSED as moot insofar as
Plaintiff seeks to add Gross as a Defendant.
Plaintiff’s Motion to Amend, however, in addition to realleging that Plaintiff failed
to properly inspect SGM regarding whether it would provide a safe environment for
Plaintiff, also seeks to assert against Defendant Hernandez additional allegations that
Hernandez, by arranging for Plaintiff’s placement at SGM, violated Plaintiff’s First
Amendment rights because Plaintiff is a Muslim and SGM is a Christian Church and
Plaintiff, while residing at SGM, was “pressured” to become Christian. Proposed
Second Amended Complaint (Doc. No. 17-1), Fourth Claim. As discussed in
connection with Defendant Hernandez’s Motion to Dismiss, Discussion, infra, at 6-7,
Plaintiff’s proposed amended claim as against Hernandez would be futile and, as such,
Plaintiff’s Motion to Amend is DENIED. See Marcel Fashions Group, Inc. v. Lucky
Brand Dungarees, Inc., 779 F.3d 102, 110 (2d Cir. 2015) (“‘Leave to amend may
properly be denied if the amendment would be futile.’” (quoting Grullon v. City of New
Haven, 720 F.3d 133, 140 (2d Cir. 2013))).
In support of his Motion to Dismiss, Hernandez argues that Plaintiff has failed to
allege the requisite personal involvement of Hernandez in the asserted Eighth

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Amendment violation. Defendant Hernandez’s Memorandum at 6-7. Hernandez further
maintains that Plaintiff, as a parolee, remains under the supervision of New York State
Department of Corrections and Community Supervision (“DOCCS”), and, as such, must
comply with all restrictions placed upon Plaintiff’s parole even if such restrictions result
in a reduction of his civil rights. Id. at 7-8. 2 In opposition to Defendant Hernandez’s
Motion, Plaintiff essentially reiterates the assertions against Hernandez stated in the
Amended Complaint, as well as in the Proposed Second Amended Complaint.
Plaintiff’s Response at 1-2.
On a motion to dismiss under Fed.R.Civ.P. 12(b)(6) (“Rule 12(b)(6)”), the court
looks to the four corners of the complaint and is required to accept the plaintiff's
allegations as true and to construe those allegations in the light most favorable to the
plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Goldstein v. Pataki, 516 F.3d
50, 56 (2d Cir. 2008) (court is required to liberally construe the complaint, accept as true
all factual allegations in the complaint, and draw all reasonable inferences in the
plaintiff’s favor). The Supreme Court requires application of “a ‘plausibility standard,’
which is guided by ‘[t]wo working principles.’” Harris v. Mills, 572 F.3d 66, 71-72 (2d Cir.
2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and quoting Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009)). “First, although ‘a court must accept as true all of
the allegations contained in a complaint,’ that ‘tenet’ ‘is inapplicable to legal
conclusions,’ and ‘[t]hreadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice.’” Harris, 572 F.3d at 72 (quoting Iqbal,
556 U.S. at 678). “‘Second, only a complaint that states a plausible claim for relief
survives a motion to dismiss,’ and ‘[d]etermining whether a complaint states a plausible
2

Defendant Hernandez does not seek dismissal of the Amended Complaint based on qualified immunity.

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claim for relief will . . . be a context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.’” Id. (quoting Iqbal, 556 U.S. at
679).
Insofar as Plaintiff maintains Hernandez failed to protect Plaintiff by obtaining
Plaintiff a residence at the SGM halfway house where Plaintiff was assaulted by another
parolee, Plaintiff has failed to allege the requisite personal involvement by Hernandez in
the attack. See Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (“It is well settled in
this Circuit that personal involvement of defendants in alleged constitutional
deprivations is a prerequisite to an award of damages under § 1983.” (internal quotation
marks and citation omitted)). In particular, Plaintiff fails to allege that Hernandez was
aware that any other parolee at the SGM halfway house posed a danger to Plaintiff.
See Brown v. Wood, 86 Fed.Appx. 463, 464 (2d Cir. Feb. 3, 2004) (granting summary
judgment to prison officials absent any evidence of deliberate indifference to plaintiff
inmate’s safety in returning plaintiff to general prison population where he was
assaulted). Accordingly, Plaintiff has failed to allege Plaintiff was personally involved in
any Eighth Amendment violation against Plaintiff.
With regard to Plaintiff’s assertion that his placement at the SGM halfway house
was inappropriate because Plaintiff is a Muslim and SGM is run by a Christian church,
Federal courts have “consistently held that a parolee has no constitutionally protected
interest in being free from special conditions of release.” Walker v. Mattingly, 2012 WL
1160772, at *6 (W.D.N.Y. Apr. 5, 2012) (citing Boddie v. Chung, 2011 WL 1697965, at *
2 (E.D.N.Y. May 4, 2011) (rejecting § 1983 challenge to special conditions of parole);
Cooper v. Dennison, 2011 WL 1118685, at * 11 (W.D.N.Y. Mar. 24, 2011) (quoting

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Pena v. Trais, 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 Parole and parole
officers, plaintiff does not have a protected liberty interest in being free from special
conditions.”)). Furthermore, “the 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. Review of conditions of parole
are generally matters for state courts.’” Walker, 2012 WL 1160772, at * 6 (quoting
Pena, 2002 WL 31886175, at 1 n. 2). Accordingly, Plaintiff’s assertions regarding the
conditions of his parole fail to state a claim for which relief cannot be granted.
Defendant Hernandez’s Motion should be GRANTED.

CONCLUSION
Based on the foregoing, Plaintiff’s Motion for Default - Howard (Doc. No. 10) is
DISMSSED as moot; Plaintiff’s Motion for Default – Hernandez (Doc. No. 13), is
DISMISSED as moot; SGM Defendant’s Motion for Judgment on the Pleadings (Doc.
No. 14), is DISMISSED as moot; Plaintiff’s Motion to Amend (Doc. No. 17), is
DISMISSED as moot in part and DENIED in part; and Defendant Hernandez’s Motion to
Dismiss (Doc. No. 19), should be GRANTED; the Clerk of the Court should be directed
to close the file.
SO ORDERED as to Plaintiff’s
motions for entry of default, for
leave to file an amended complaint,
and SGM Defendants’ motion for
judgment on the pleadings.
/s/ Leslie G. Foschio
______________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
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Respectfully submitted, as to Defendant Hernandez’s
motion to dismiss,
/s/ Leslie G. Foschio
______________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED:

March 30, 2015
Buffalo, New York
Any appeal of this Decision and Order must be taken by
filing a notice of appeal within 14 days of the filing of
this Decision and Order pursuant to Fed.R.Civ.P. 72(a).

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ORDERED that this Report and Recommendation be filed with the Clerk of the
Court.
ANY OBJECTIONS to this Report and Recommendation must be filed with the
Clerk of the Court within fourteen (14) days of service of this Report and
Recommendation in accordance with the above statute, Rules 72(b), 6(a) and 6(d) of
the Federal Rules of Civil Procedure and Local Rule 72.3.
Failure to file objections within the specified time or to request an
extension of such time waives the right to appeal the District Court's Order.
Thomas v. Arn, 474 U.S. 140 (1985); Small v. Secretary of Health and Human
Services, 892 F.2d 15 (2d Cir. 1989); Wesolek v. Canadair Limited, 838 F.2d 55 (2d
Cir. 1988).
Let the Clerk send a copy of this Report and Recommendation to the Plaintiff and
to the attorneys for the Defendants.
SO ORDERED.
/s/ Leslie G. Foschio
______________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED:

March 30, 2015
Buffalo, New York

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