Gordon v. New York Department of Parole et al

Filing 74

DECISION AND ORDER DENYING Plaintiff's 62 Motion for Summary Judgment; GRANTING Defendants' 66 Motion for Summary Judgment; DENYING Plaintiff's 61 Motion for a Hearing; DIRECTING the Clerk of the Court to close this case. Signed by William M. Skretny, United States District Judge on 5/23/2017. (MEAL) Copy mailed to Plaintiff. - CLERK TO FOLLOW UP -

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ERIC M. GORDON,
Plaintiff,
v.

DECISION AND ORDER
14-CV-324S

PAROLE OFFICER SEMRUG,
PAROLE OFFICER HIMMELSBOCH,
PAROLE SPECIALIST CYNTHIA MOONEY,
Defendants.

I. INTRODUCTION
In this action under 42 U.S.C. § 1983, pro se Plaintiff Eric M. Gordon brings suit
against Defendants Martin Semrau and Melissa Himmelsbach, 1 who served as
Plaintiff’s parole officers, and Defendant Cynthia Mooney, who served as the Parole
Specialist at a hearing where it was determined that Plaintiff had violated his parole,
alleging that Defendants violated his constitutional rights by designating him as a
discretionary sex offender. 2

Presently before this Court is Plaintiff’s Motion for

Summary Judgment and Defendants’ motion for the same relief.

For the following

reasons, Defendants’ motion is granted and Plaintiff’s motion is denied.
II. BACKGROUND 3
This suit was initially filed on April 29, 2014. At that time, Plaintiff was an inmate
of the Franklin Correctional Facility, serving out the remainder of his sentence for
1

The caption and complaint in this action appear to misspell Defendant Semrau’s name as “Semrug” and
Himmelsbach’s name as “Himmelsboch”.
2
Plaintiff’s Complaint initially included claims against the New York Department of Parole, Andrea A.
Evans, and Channel Four News. (Docket No. 1). These defendants were dismissed with prejudice on
October 24, 2014 (Docket No. 11).
3
The facts are derived principally from the parties’ Local Rule 56 Statements, the parties’ declarations,
and exhibits attached thereto. Only the facts necessary to the resolution of the motion are recounted
below and are undisputed unless otherwise stated.

1

violation of the terms of his parole. Defendants Semrau, Himmelsbach, and Mooney
were at all relevant times employed by the New York State Department of Corrections
and Community Supervision (“DOCCS”) or its predecessor the Department of Parole,
which has now merged with DOCCS.
Plaintiff was initially convicted in 2005, when he pled guilty in Erie County
Supreme Court to second degree burglary, criminal possession of a controlled
substance, and resisting arrest. The victim of the burglary alleged that, during the
commission of the crime, Plaintiff stated he would not leave her home unless either she
or her seven-year-old daughter had sex with him.

Plaintiff was sentenced to a

determinate sentence of five years in custody and an additional five years of supervised
release.
Plaintiff was initially released on parole in August 2009 and placed under the
supervision of Parole Officer Amato, who is not a party to this suit. Prior to Plaintiff’s
release from custody, he was designated as a discretionary sex offender (“DSO”), a
designation given in New York State to those “whose instant offense is not a sex crime,
but whose criminal history includes a prior sex offense conviction or a crime the
commission of which had a sexual component.” (Himmelsbach Dep. 3:11; Docket No.
66.)

The designation is not public, it is an internal classification that defines the

conditions to which a parolee is subject during the period of supervised release. A DSO
is subject to some of the same parole conditions as a sex offender, which may include
sex offender treatment or prohibitions on interacting with minors, but does not require
the parolee to register with the State Sex Offender Registry. The designation is made
following recommendation by a parole officer and approval by a supervisor.

2

Defendants state that Plaintiff was designated as a DSO because of the
statement that he made during the burglary that he would not leave the victim’s home
unless either she or her seven-year-old daughter had sex with him. It appears that the
designation was recommended by Parole Officer Amato, though it is not clear which
supervisor approved Officer Amato’s recommendation. Officer Amato met with Plaintiff
on August 24, 2009, shortly after his release. At that time, Plaintiff signed conditions of
parole indicating that, among other conditions of parole, he was required to participate
and complete sex offender counseling. Plaintiff does not recall signing the conditions of
parole, and disputes that Officer Amato told him that he would be supervised as a DSO.
Officer Amato supervised Plaintiff for only a short time because, three days after he was
released, Plaintiff violated his curfew and returned to custody after pleading guilty to a
parole violation.
Plaintiff was next released from custody on August 26, 2010, and placed under
the supervision of Officer Semrau. Officer Semrau “submitted rationales for the special
conditions associated with” Plaintiff—which would appear to mean that he supported
Plaintiff’s continued designation as a DSO. (Semrau Decl. ¶ 19; Docket No. 67-4.)
Plaintiff states that he first learned of the sex offender conditions from Officer Semrau,
that he objected to the conditions, and that he was told he would “have to register in a
kind of way that it would only be provided to local police officers.” (Gordon Dep. 20:1318, Docket No. 67). Officer Semrau advised Plaintiff that he could initiate an Article 78
proceeding if he wanted to challenge the designation. Despite his objections, Plaintiff
signed off on the conditions and did not file any challenge at that time.

3

Plaintiff was not compliant with the conditions of his parole. Officer Semrau often
had difficulty locating the Plaintiff, and he failed to attend the requisite sex offender
counseling.

On November 12, 2010, after DOCCS officers were unable to locate

Plaintiff for several weeks, an absconder warrant was issued. Plaintiff alleges that, on
February 3, 2011, after he had absconded to Nebraska, he saw a television broadcast
on “Channel 4” that said he “was wanted by the New York Department of Parole, that
[he] was a sex offender wanted by . . . the State Department of Parole, someone who
committed a sex offense . . . .” (Gordon Dep. 62:20-23, 63:1-7, Docket No. 67). Plaintiff
does not know the source of the information provided to Channel 4. On December 13,
2011, Plaintiff was taken into custody in Nebraska after a traffic stop and extradited
back to New York shortly after. Plaintiff alleges that the extradition paperwork stated
that his crime of conviction was rape, though the paperwork contradicts this. After
Plaintiff was brought back to Buffalo, he was either found guilty or pled guilty to violating
his parole and sentenced to fifteen months in custody.
Plaintiff was released on parole for the third and final time on June 6, 2013,
under the supervision of Officer Himmelsbach. Prior to Plaintiff’s release, Senior Parole
Officer Susanna Mattingly recommended that Plaintiff be classified as a DSO, which
was approved by the Bureau Chief. Officer Himmelsbach informed Plaintiff that he
would be supervised as a DSO and also of several additional conditions, including a
requirement that he avoid contact with Allison Coleman, a woman with whom Plaintiff
had a prior relationship and a history of domestic violence.

Officer Himmelsbach

imposed a curfew of 8pm to 8am, a ban on driving, and a prohibition on going to bars.
She also used a GPS to monitor Plaintiff’s movements due to his history of violence and

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the previous absconding incident. Plaintiff again protested the terms of his parole, but
again signed off on them.
Plaintiff was no more compliant on his third attempt at parole than he had been
during the two prior periods of release. On July 25, 2013, Officer Himmelsbach found
Plaintiff speaking with Ms. Coleman in front of her home. Officer Himmelsbach also
found an unapproved cell phone in Plaintiff’s possession that revealed Plaintiff had been
associating with children and visiting pornographic web sites in violation of the DSOrelated conditions of his parole. Plaintiff was taken back into custody and charged with
seventeen parole violations, including violating curfew on multiple occasions, being
within 1000 feet of Ms. Coleman, being within 1000 feet of a minor, possession of an
unapproved cell phone, and accessing pornographic sites on his cell phone.
Officer Mooney acted as the Parole Revocation Specialist who prosecuted
Plaintiff for these violations at the Parole Revocation Hearing on October 2, 2013. Ms.
Coleman testified at the hearing that she had known Plaintiff for many years, that he
was at her residence, and that she knew he was not supposed to be at her residence.
Officer Himmelsbach also testified at the hearing as to the conditions of Plaintiff’s
parole.

Plaintiff was sentenced to “maxing out” his parole, meaning that he was

sentenced to complete the remainder of his supervised release in custody.
Plaintiff commenced this § 1983 action in April 2014, while still in custody on the
parole violations. Shortly after, on July 25, 2014, Plaintiff brought a habeas corpus
proceeding in New York state court. See Matter of Gordon v. LaClair, 48 Misc. 3d 926,
16 N.Y.S.3d 371 (N.Y. Sup. Ct. 2015).

The Franklin County Supreme Court

acknowledged the possibility that the DSO designation may have implicated Plaintiff’s

5

liberty interest, but dismissed Plaintiff’s petition because it appeared that Plaintiff’s
parole was revoked primarily based on violations of parole that were unrelated to the
DSO-specific conditions:
The mere fact that [Plaintiff] may have been unlawfully designated a
“discretionary sex offender” for parole supervision purposes does not, in
and of itself or even when coupled with a parole condition directing his
participation in an intrusive sex offender treatment program, mandate the
judicial reversal of a subsequent final parole revocation determination in
the absence of allegations/findings that the parole revocation
determination was based solely upon the violation of the release condition
requiring petitioner to participate in the sex offender treatment program.
Id. at 936.
Plaintiff was released in July 2015, having completed his term of parole. It is
undisputed that, since his term is now complete, he is no longer designated as a DSO
and is no longer subject to any condition of parole. It is also undisputed that Plaintiff
was not made to register as a sex offender, and that he never attended sex offender
counseling.
III. DISCUSSION
Summary judgment is appropriate where “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). It is the role of this Court “not to resolve disputed
questions of fact but only to determine whether, as to any material issue, a genuine
factual dispute exists.” Kaytor v. Elec. Boat Corp., 609 F.3d 537, 545 (2d Cir. 2010). A
fact is material where it “might affect the outcome of the suit under the governing law . .
. .” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d
202 (1986). A dispute regarding a material fact is genuine where “the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.” Id.
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“[I]n reviewing all of the evidence to determine whether judgment as a matter of
law is appropriate, ‘the court must draw all reasonable inferences in favor of the
nonmoving party.’” Kaytor, 609 F.3d at 545 (quoting Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 150, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000)) (emphasis
removed).

“Only when reasonable minds could not differ as to the import of the

evidence is summary judgment proper.” Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.
1991). “If, as to the issue on which summary judgment is sought, there is any evidence
in the record from which a reasonable inference could be drawn in favor of the
nonmoving party, summary judgment is improper.” Rodriguez v. City of New York, 72
F.3d 1051, 1061 (2d Cir. 1995). “[S]ummary judgment is proper only when, . . . ‘there
can be but one reasonable conclusion as to the verdict.’” Kaytor, 609 F.3d at 545
(quoting Anderson, 477 U.S. at 250).
Further, this Court will “liberally construe pleadings and briefs submitted by pro
se litigants, . . . reading such submissions ‘to raise the strongest arguments they
suggest.’” Bertin v. United States, 478 F.3d 489, 492 (2d Cir. 2007) (quoting Burgos v.
Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)) (internal citations omitted). “Nonetheless,
‘[p]roceeding pro se does not otherwise relieve a litigant of the usual requirements of
summary judgment, and a pro se party’s bald assertions, unsupported by evidence, are
insufficient to overcome a motion for summary judgment.’” Rodriguez v. Ames, 224 F.
Supp. 2d 555, 558-59 (W.D.N.Y. 2002) (quoting Rodriguez v. Hahn, 209 F. Supp. 2d
344, 348 (S.D.N.Y. 2002)).
Plaintiff claims that his designation as a DSO was a violation of his Constitutional
rights, contending that he has never been convicted of a sex crime and therefore should

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have received a hearing before the designation was imposed. He expressly limits his
challenge to the designation itself, and not the conditions that accompanied it, stating:
[T]his Complaint is not about the Department of Parole’s authority or
discretion to implement any parole supervised conditions. This Complaint
. . . is specifically a challenge to what the Plaintiff truly believes to be an
unconstitutional sex offender classification/ designation and notification of
himself under the supervision of the Department of Parole.
(Complaint at p. 6; Docket No. 1.)

Plaintiff characterizes his claims as Malicious

Prosecution, Harassment, Illegal Search and Seizure, Equal Protection and Due
Process, and brings suit under 42 U.S.C. § 1983 seeking monetary damages and
injunctive relief. “To state a valid claim under 42 U.S.C. § 1983, the plaintiff must allege
that the challenged conduct (1) was attributable to a person acting under color of state
law, and (2) deprived the plaintiff of a right, privilege, or immunity secured by the
Constitution or laws of the United States.” Whalen v. County of Fulton, 126 F.3d 400,
405 (2d. Cir. 1997) (citing Eagleston v. Guido, 41 F.3d 865, 875-76 (2d Cir. 1994)).
A.

Statute of Limitations
The statute of limitations for Section 1983 actions arising out of constitutional

wrongs in New York is three years. Eagleston, 41 F.3d at 871. In calculating this
period, courts assume, pursuant to the “prison mailbox” rule, that a pleading is filed
when it is given to prison officials. Houston v. Lack, 487 U.S. 266, 276, 108 S. Ct. 2379,
2385, 101 L. Ed. 2d 245 (1988); Nobel v. Kelly, 246 F.3d 93, 97 (2d Cir. 2001). In this
case, Plaintiff’s Complaint was notarized April 25, 2014, which will be considered the
date it was given to prison officials. Accordingly, any claims that accrued before April
25, 2011 are time barred.

8

The Second Circuit has ruled that accrual of a Section 1983 claim occurs when
the plaintiff “knows or has reason to know of the injury which is the basis of his action.”
See Singleton v. City of New York, 632 F.2d 185, 191 (2d Cir. 1980) cert. denied, 450
U.S. 920, 101 S. Ct. 1368, 67 L. Ed. 2d 347 (1981) (internal quotation omitted); see also
Shomo v. City of New York, 579 F.3d 176, 181 (2d Cir. 2009) (“A Section 1983 claim
ordinarily accrues when the plaintiff knows or has reason to know of the harm.” (internal
quotation omitted)). To the extent that Plaintiff seeks to argue that the “continuing
violation” doctrine has tolled the statute of limitations, this Court finds that argument to
be without merit.
Based on the facts presented by the parties, it appears that Plaintiff was
designated as a DSO on three occasions, immediately prior to his release on parole in
August 2009, August 2010, and June 2013. Plaintiff argues that he was not told of the
DSO designation during his first parole in August 2009, and has not brought suit against
Officer Amato, who made the recommendation for the initial designation, nor the
unnamed supervisor who ultimately approve the initial designation. Plaintiff alleges that
he became aware of the DSO designation in August 2010, when Officer Semrau took
over his supervision. Plaintiff has stated that he seeks only to challenge the designation
itself, and not the conditions associated with the designation.
The chief purpose of the continuing violation doctrine “is to protect the rights of
plaintiffs where ‘the earlier discrimination may only be recognized as actionable in the
light of events that occurred later.’”

Keddy v. Smith Barney, Inc., No. 96 Civ.

2177(DAB)(SEG), 2000 WL 193625, at *3 (S.D.N.Y Feb. 16, 2000) (quoting Hardin v.
S.C. Johnson & Son, Inc., 167 F.3d 340, 344 (7th Cir. 1999), cert. denied, 528 U.S. 874,

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120 S. Ct. 178, 145 L. Ed. 2d 150 (1999)). This rationale does not apply to the case at
hand.

Unlike the employment discrimination context, where this doctrine is often

applied, Plaintiff here does not allege a series of individual acts that, when taken
together, amount to a violation of constitutional rights. Instead, he cites the individual
occurrences where he was designated as a DSO, each of which is akin to a “one time
act with continued consequences,” and which the Eleventh Circuit has held is not
subject to the continuing violation doctrine. See Lovett v. Ray, 327 F.3d 1181, 1183
(11th Cir. 2003) (“The critical distinction in the continuing violation analysis is whether
the plaintiff complains of the present consequence of a one time violation, which does
not extend the limitations period, or the continuation of that violation into the present,
which does.” (internal quotation and punctuation omitted)); see also Munsch v. Evans,
No. 11-CV-2271 JFB ETB, 2012 WL 528135, at *12-14 (E.D.N.Y. Feb. 17, 2012) (“the
decision to impose conditions to plaintiff’s lifetime supervision was a ‘one time act with
continued consequences’” therefore continuing violation doctrine did not apply) (quoting
Lovett, 327 F.3d at 1183)).
Because the continuing violation doctrine is inapplicable, there is no tolling of the
statute of limitations. Accordingly, Plaintiff’s claims that accrued before April 25, 2011,
including his claim against Officer Semrau, must be dismissed as time-barred. 4

4

Plaintiff also alleges that, while he had absconded from parole to Nebraska on February 3, 2011, he saw
a television broadcast on “Channel 4” stating he was a sex offender wanted by the State Department of
Parole. Any claim accruing from the alleged broadcast is time-barred. Further, any claims arising from
the broadcast or from Plaintiff’s allegations that his extradition papers said he was convicted of “rape”
must also be dismissed because Plaintiff states that he does not know the source of the information in
these alleged incidents, and the Defendants state that they were not the source. See Rodriguez, 224 F.
Supp. 2d at 558 (“a pro se party’s bald assertions, unsupported by evidence, are insufficient to overcome
a motion for summary judgment”).

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B.

Monetary Damages
Defendants argue that the designation in this case was not a violation of due

process because the DSO designation is private and therefore not the equivalent of a
Sex Offender designation, which requires registration. Defendants further argue that,
even if it were a violation, they would be shielded from suit by qualified immunity.
“Qualified immunity protects public officials from liability for civil damages ‘unless the
official violated a statutory or constitutional right that was clearly established at the time
of the challenged conduct.’” Singleton v. Doe, 210 F. Supp. 3d 359, 371 (E.D.N.Y.
2016) (quoting Taylor v. Barkes, 135 S. Ct. 2042, 2044, 192 L. Ed. 78 (2015)). “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, 136
S. Ct. 305, 308, 193 L. Ed. 2d 255 (2015) (per curiam) (quoting Reichele v. Howards,
566 U.S. 658, 659, 132 S. Ct. 2088, 182 L. Ed. 985 (2012)). “In other words, ‘existing
precedent must have placed the statutory or constitutional question beyond debate.’”
Reichele, 566 U.S. at 664 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741, 131 S. Ct.
2074, 179 L. Ed. 2d 1149 (2011)). “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).
As recently noted by the Eastern District: “The Court is unaware of any Second
Circuit federal court determination that addresses a parolee’s liberty interest in being
free from a discretionary sex offender designation.” See Singleton, 210 F. Supp. 3d at
371 (finding qualified immunity applied in parolee’s § 1983 suit arising from DSO
designation). The Second Circuit has held, in other contexts, that “damage to one’s

11

reputation is not ‘by itself sufficient to invoke the procedural protection of the Due
Process Clause;’” “‘stigma plus’ is required to establish a constitutional deprivation.”
Valmonte v. Bane, 18 F.3d 992, 999 (2d Cir. 1994) (quoting Paul v. Davis, 424 U.S.
693, 701, 96 S. Ct. 1155, 47 L. Ed. 2d 405 (1976)).
To establish a “stigma plus” claim, a plaintiff must show (1) “the utterance
of a statement sufficiently derogatory to injure his or her reputation, that is
capable of being proved false, and that he or she claims is false,” and (2)
“a material state-imposed burden or state-imposed alteration of the
plaintiff's status or rights.”
Vega v. Lantz, 596 F.3d 77, 81 (2d Cir. 2010) (quoting Sadallah v. City of Utica, 383
F.3d 34, 38 (2d Cir. 2004)).
Such a “stigma plus” claim may arise where parolees are forced to comply with
certain registry and notification requirements of New York’s Sex Offender Registration
Act. See, e.g., Doe v. Pataki, 3 F. Supp. 2d 456, 463 (S.D.N.Y. 1998); People v. David
W., 95 N.Y.2d 130, 139, 711 N.Y.S.2d 134, 733 N.E.2d 206 (N.Y. 2000). But although
a prisoner or 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 Supreme Court has made clear that the interest extends to a DSO
designation. “Thus, Plaintiff’s right to receive due process prior to being designated a
discretionary sex offender is not clearly established, and to the extent that Plaintiff had
such an interest upon which Defendants wrongly infringed, Plaintiff cannot recover
money damages from Defendants because they are entitled to qualified immunity.”
Singleton, 210 F. Supp. 3d at 371 (citing Taylor, 135 S. Ct. at 2044; Allen v. Coughlin,
64 F.3d 77, 81 (2d Cir. 1995)).

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C.

Injunctive Relief
Plaintiff also seeks injunctive relief, in the form of a “name clearing.” The subject

matter jurisdiction of this Court is limited “to disputes involving ‘live cases and
controversies.’” U.S. Const. art. III; County of Suffolk v. Sebelius, 605 F.3d 135, 140
(2d Cir. 2010). “Mootness . . . concerns when and whether a case is live.” County of
Suffolk, 605 F.3d at 140 (internal quotations omitted). The general rule is that “courts'
subject matter jurisdiction ceases when ‘an event occurs during the course of the
proceedings or on appeal that makes it impossible for the court to grant any effectual
relief whatever to a prevailing party.’” Id. (quoting United States v. Quattrone, 402 F.3d
304, 308 (2d Cir. 2005)).
In the present case, Plaintiff’s request for injunctive relief is moot.

It is

undisputed that Plaintiff is no longer on parole, and is therefore no longer subject to the
conditions accompanying the DSO designation. Making every inference in Plaintiff’s
favor, he has failed to raise an issue of material fact as to whether he continues to suffer
an injury arising from the DSO designation, which the credible evidence shows to have
been a status associated solely with the conditions of his parole. Therefore, injunctive
relief is not available. 5 Having found the injunctive claims moot, this Court also finds
Plaintiff’s motion for a name clearing hearing to be moot. 6

5

This Court further notes that Plaintiff has not shown that he was denied due process of law. “[T]he
availability of adequate process defeats a stigma-plus claim.” Hughes v. City of N.Y., 197 F. Supp. 3d
467, 477-78 (E.D.N.Y. 2016) (denying “stigma plus” claim where plaintiff failed to pursue an Article 78
proceeding), aff'd in relevant part, No. 16-2557, 2017 WL 685803 (2d Cir. Feb. 21, 2017) (quoting Segal
v. City of N.Y., 459 F.3d 207, 213 (2d Cir. 2006)). Plaintiff did not pursue an Article 78 proceeding, which
the Second Circuit has repeatedly held “provides the requisite post-deprivation process.” Anemone v.
Metro. Transp. Auth., 629 F.3d 97, 121 (2d Cir. 2011). An Article 78 proceeding must be commenced
“within four months after the determination to be reviewed becomes final and binding . . . .” N.Y. C.P.L.R.
217(1). Plaintiff failed to challenge his designation as a DSO by Article 78, instead filing a habeas corpus
petition on July 25, 2014, more than a year after his third and final designation as a DSO. In denying the
petition, the court noted that, if the designation was “a violation of his constitutional due process rights,

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IV. CONCLUSION
Because Plaintiff’s claims for compensatory damages are barred by Defendants’
qualified immunity and his claims for injunctive relief are moot, Defendants’ Motion for
Summary Judgment is granted and the claims against them are dismissed. Plaintiff’s
motions are denied.
V. ORDER
IT HEREBY IS ORDERED, that Plaintiff’s Motion for Summary Judgment (Docket
No. 62) is DENIED;
FURTHER, that Defendants’ Motion for Summary Judgment (Docket No. 66) is
GRANTED;
FURTHER, that Plaintiff’s Motion for a Hearing (Docket No. 61) is DENIED;
FURTHER, that the Clerk of Court is directed to close this case.
SO ORDERED.

Dated: May 23, 2017
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
United States District Court Judge

the proper remedy (preparole violation) would be a court order striking the offending parole condition.”
Matter of Gordon, 48 Misc. 3d at 933. Accordingly, because Plaintiff failed to avail himself of the process
available, he was not denied due process.
6
Further, this Court finds no basis for Plaintiff’s claims under the Fourth, Fifth, and Sixth Amendments.
See Barnett v. Carberry, 420 Fed. App’x 67, 69 (2d Cir. 2011) (“The Fourth Amendment safeguards
privacy and personal security only against searches or seizures, and not conduct outside of a
governmental investigation of a violation of criminal law or other statutory or regulatory law.”); Dutkiewicz
v. Hyjek, 135 Fed. App’x 482, 484 (2d Cir. 2005) (“the Sixth Amendment . . . applies only to criminal
defendants”); Cassidy v. Scoppetta, 365 F. Supp. 2d 283, 286 (E.D.N.Y. 2005) (“The Fifth Amendment
governs the conduct of the federal government and federal employees, and does not regulate the
activities of state officials or state actors.” (internal quotation and punctuation omitted)).

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