Bodie v. Morgenthau, 02 Civ. 7697(PKC).

• Decision Date: 23 September 2004
• Docket Number: No. 02 Civ. 7697(PKC).,02 Civ. 7697(PKC).
• Citation: 342 F.Supp.2d 193
• Parties: Terence BODIE, Plaintiff, v. Robert M. MORGENTHAU, District Attorney, New York County, James M. Kindler, Chief Assistant District Attorney, New York County, Ann Donnelly, Assistant District Attorney, New York County, Donna Dodds, Associate General Counsel, The City of New York, Department of Probation, Brion D. Travis, Chairman of the New York State Division of Parole, Glenn S. Goord, Commissioner of the Department of Correction Services, New York County Department of Probation, Defendants.
• Court: U.S. District Court — Southern District of New York

342 F.Supp.2d 193

Terence BODIE, Plaintiff, v. Robert M. MORGENTHAU, District Attorney, New York County, James M. Kindler, Chief Assistant District Attorney, New York County, Ann Donnelly, Assistant District Attorney, New York County, Donna Dodds, Associate General Counsel, The City of New York, Department of Probation, Brion D. Travis, Chairman of the New York State Division of Parole, Glenn S. Goord, Commissioner of the Department of Correction Services, New York County Department of Probation, Defendants.

No. 02 Civ. 7697(PKC).

United States District Court, S.D. New York.

September 23, 2004.

Terence Bodie, Aurthur-Kill Correctional Facility, Staten Island, NY, Pro se.

Michael Symington Morgan, District Attorney, New York County, New York City, for Defendants.

Michael A. Cardozo, Corporation Counsel of City of New York, New York City, for New York County Dept. of Probation.

MEMORANDUM AND ORDER

CASTEL, District Judge.

Plaintiff Terence Boddie¹ filed this action on September 25, 2002, alleging that the defendants, in their official and individual capacities, violated his rights under the Equal Protection and Due Process clauses of the Fourteenth Amendment of the U.S. Constitution. In this action brought under 42 U.S.C. § 1983, the plaintiff, who is pro se, challenges both the conditions of his confinement and his continued incarceration in facilities maintained by the New York State Department of Correctional Services ("DOCS"). Defendants move to dismiss the Complaint pursuant to Rules 12(b)(1) and 12(b)(6), Fed.R.Civ.P., for lack of subject matter jurisdiction and for failing to state a claim.

For the reasons explained below, the motion to dismiss is granted in part and denied in part.

Background

Plaintiff is serving six concurrent sentences after jury convictions on four counts of Rape in the First Degree, five counts of Sodomy in the First Degree, and two counts of Sexual Abuse in the First Degree. The New York Appellate Division, First Department, unanimously affirmed his conviction. People v. Boddie, 226 A.D.2d 120, 640 N.Y.S.2d 47 (1st Dep't), appeal denied, 88 N.Y.2d 980, 672 N.E.2d 613, 649 N.Y.S.2d 387, adhered to on reconsideration, 88 N.Y.2d 1067, 674 N.E.2d 341, 651 N.Y.S.2d 411 (1996). Boddie is currently incarcerated and under DOCS supervision. (Complaint ¶ 3)

Since his incarceration, Boddie has filed multiple actions in state and federal court regarding his conviction, including at least two in this District petitioning for a writ of habeas corpus. See, e.g., Boddie v. New York State Dep't of Correctional Services, 1997 WL 482036 (S.D.N.Y. Aug. 20, 1997) (dismissing section 1983 complaint); Boddie v. Brunelle, 1997 WL 626407 (W.D.N.Y. Sept.19, 1997) (dismissing section 1983 action on summary judgment); Boddie v. Goord, 251 A.D.2d 799, 674 N.Y.S.2d 466 (3d Dep't), leave denied, 92 N.Y.2d 810, 702 N.E.2d 839, 680 N.Y.S.2d 54 (N.Y.1998) (table) (affirming dismissal of Article 78 complaint); Boddie v. New York State Division of Parole, 290 A.D.2d 327, 735 N.Y.S.2d 781 (1st Dep't), appeal dismissed 98 N.Y.2d 752, 781 N.E.2d 905, 751 N.Y.S.2d 841 (2002) (dismissing complaint over parole denial); Boddie v. New York State Division of Parole, 293 A.D.2d 884, 740 N.Y.S.2d 247 (3d Dep't), leave denied, 98 N.Y.2d 606, 774 N.E.2d 222, 746 N.Y.S.2d 457 (table), appeal dismissed, 98 N.Y.2d 752, 781 N.E.2d 905, 751 N.Y.S.2d 841 (2002) ("[W]ere we to reach the merits, we would uphold the determination denying petitioner's request for parole.... [T]he Board was persuaded by the heinous nature of petitioner's offenses and the fact that a weapon was involved."); Boddie v. New York State Division of Parole, 306 A.D.2d 661, 759 N.Y.S.2d 910 (3d Dep't), appeal dismissed, 1 N.Y.3d 551, 807 N.E.2d 881, 775 N.Y.S.2d 770 (2003) (dismissing appeal from Article 78 proceeding that rejected Boddie's application over parole denial); Boddie v. Goord, 307 A.D.2d 555, 762 N.Y.S.2d 295 (3d Dep't 2003), appeal dismissed, 1 N.Y.3d 589, 808 N.E.2d 352, 776 N.Y.S.2d 217 (2004) (affirming dismissal of Article 78 complaint for lack of administrative exhaustion); Boddie v. New York State Division of Parole, 288 F.Supp.2d 431 (S.D.N.Y.2003) (denying petition for writ of habeas corpus challenging Boddie's parole denial); Boddie v. New York State Division of Parole, 285 F.Supp.2d 421 (S.D.N.Y.2003) (same); Boddie v. Edwards, 97 Civ. 7821(MGC).

For the purposes of this Rule 12 motion, I describe the facts of this case as they are offered by the plaintiff, and accept them as true. See Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993).

The Complaint provides a lengthy narrative pertaining to Boddie's sentencing and subsequent denials of parole. The purported wrongs of which he complains commenced at the time of his sentencing in 1993, when, he claims, defendant Ann Donnelly, then an assistant district attorney for New York County, failed to submit a memorandum to the trial court detailing her views on Boddie's sentencing. (Complaint ¶ 14) Boddie claims that until 1998, he was unaware that Donnelly placed a "negative recommendation letter" in his institutional parole file.² (Complaint ¶¶ 15-17) The Complaint depicts bureaucratic confusion about the letter's existence, until, in 1999, Assistant District Attorney Carmon A. Morales confirmed the letter's existence. (Complaint ¶¶ 18-23) Boddie contends that upon review of this document, he found it factually inaccurate. (Complaint ¶¶ 24-26, 29-30) He believes that the letter contributed to his parole denials in 1998 and 2000. (Complaint ¶ 32) He alleges that the filing of the letter violated his due process and equal protection rights, and that it reflects malice and bias by defendant Donnelly. (Complaint ¶¶ 37-49)

By letter dated November 1, 2000, Boddie raised his concerns to one of Donnelly's supervisors, Robert M. Morgenthau, District Attorney of New York County. (AC ¶ 28) Boddie's letter informed Morgenthau that defendant Donnelly prejudiced him by placing the negative recommendation letter in his file without granting him an opportunity to correct it. (Complaint ¶¶ 29-30) By letter dated June 1, 2002, Boddie wrote Assistant District Attorney James M. Kindler, again asserting that Donnelly's negative letter was inaccurate and prejudiced him in his parole hearings. (Complaint ¶¶ 36-37) Boddie contends that Morgenthau and Kindler violated his Fourteenth Amendment rights by failing to investigate the allegations raised in his letters. (Complaint ¶ 49)

Boddie seeks injunctive relief to compel the removal of the negative recommendation letter from his parole files, and preclusion of its use in parole and sex offender board hearings. (Complaint ¶ 50) He also seeks $ 1,000,000 in damages caused by the letter. (Complaint ¶ 51)

In addition to the negative recommendation letter, Boddie claims that there were inaccuracies in the pre-sentence report, which incorporated remarks suppressed as hearsay at trial. (Complaint ¶¶ 55-62) Boddie wrote letters complaining of the alleged inaccuracies that he found. (Complaint ¶ 57) Donna Dodds, identified in the Complaint only as "Associate Attorney," twice wrote Boddie indicating that she would not amend the pre-sentence report. (Complaint ¶¶ 69-70) He then filed an Article 78 petition challenging the probation department's failure to correct the information in his pre-sentence report. (Complaint ¶ 72) Boddie was granted relief in his Article 78 proceeding by default, prompting an order that the probation department amend the pre-sentence report to ensure the accuracy of all information contained therein. (Complaint ¶ 73) Plaintiff alleges that this order was ignored. (Complaint ¶ 74) At a parole hearing conducted in 2000, officials evaluated Boddie under the unamended pre-sentence report. (Complaint ¶¶ 78-79) By letter dated February 23, 2001, Dodds wrote Boddie stating that the probation department stood by the facts as stated in the pre-sentence report, with the exception of a statement that indicated Boddie admitted his guilt, which was deleted. (Complaint ¶ 81) Boddie alleges that the Department of Probation had an affirmative duty under 9 N.Y.C.R.R. § 350.6 and the Fourteenth Amendment to ensure the pre-sentence report's accuracy, and argues that the report's errors led to his parole denial. (Complaint ¶¶ 85, 87-88) He claims that Dodds and the Department of Probation are liable for these errors, and seeks an injunction ordering the pre-sentence report's withdrawal and correction, along with $1,000,000 in damages. (Complaint ¶¶ 89-94)

In a letter dated November 9, 1998, Boddie wrote Brion D. Travis, chairman of the Division of Parole, to point out factual errors in the pre-sentence report, and received no response. (Complaint ¶¶ 96-99) On November 18, 1999, Boddie received a document from the New York State Division of Parole that, he states, confirmed his suspicions that the parole board based previous decisions on erroneous information. (Complaint ¶¶ 103-05, 107, 110-12) In naming Travis as a defendant, he seeks injunctive relief mandating that the New York State Division of Parole (1) correct information in his parole files, (2) be barred from using the pre-sentence report to prepare parole summaries until all errors are corrected, (3) be barred from using the negative recommendation letter, and (4) utilize accurate records in future parole hearings. (Complaint ¶¶ 117-120)

Plaintiff next claims that the negative recommendation letter and the pre-sentence report affected his participation in the sexual offender program, as well as his security classification, transfers, conditional release date, and good-time credits. (Complaint ¶¶ 95, 121) In April 2002, Boddie was transferred to the Gowanda Correctional Facility to participate in a mandatory sexual offender program.³ (Complaint ¶ 123) Under threat of losing good time and conditional release credits,...