Gordon v. Alexander
| Decision Date | 05 January 2009 |
| Docket Number | No. 08 Civ. 5673(SAS).,08 Civ. 5673(SAS). |
| Citation | 592 F.Supp.2d 644 |
| Parties | William GORDON, Andre Combs, Robert Didonato, and Delano Brown, as individuals and on behalf of all other similarly situated, Plaintiffs, v. George ALEXANDER, Chairman of the New York State Division of Parole, and the New York State Division of Parole, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Stephen N. Dratch, Esq., Franzblau Dratch, P.C., New York, NY, for Plaintiffs.
Frederick Hongyee Wen, Daniel A. Schulze, Assistant Attorneys General, New York, NY, for Defendants.
William Gordon, Andre Combs, Robert Didonato, and Delano Brown (collectively "plaintiffs"), individuals currently serving indeterminate sentences in New York State prisons, bring the instant suit as individuals and on behalf of all others similarly situated against George Alexander, Chairman of the New York State Division of Parole, and the New York State Division of Parole (collectively "defendants"). This lawsuit addresses the procedures governing parole determinations in New York State.
Defendants now move to dismiss the entirety of plaintiffs' complaint. While plaintiffs raise a number of potentially meritorious claims, none have been pled or argued with the requisite specificity. Therefore, for the reasons stated below, defendants' motion to dismiss is granted in full with leave to replead certain claims.
Plaintiffs are individuals currently incarcerated in the New York State correctional system. Gordon is serving a thirteen year and three month to forty year sentence, Combs is serving a fifteen year to life sentence, Didonato is serving an eight year to life sentence, and Brown is serving a twenty year to life sentence.1 Each recently sought parole and received a cursory denial from the Board of Parole.2 For example, the adverse determination issued to Gordon states, "All factors considered, the pan el concludes that you are a poor candidate for early release."3 Brown's denial states, "[Y]our release to supervision at this time would deprecate the serious nature of your instant offense and undermine respect for the law ...."4
Each plaintiff filed a notice of appeal within thirty days of receiving notice of his parole determination and perfected his appeal within four months of filing notice.5 The Division of Parole did not render a decision on any of the named plaintiffs' parole appeals within 120 days of perfection of the appeal.6 Nor did the Division of Parole inform plaintiffs of any legal effect of the failure to resolve an appeal within 120 days.7
Plaintiffs allege that the results—or non-results—of their appeals are reflective of the broader practices of Division of Parole.8 They also allege that the Division of Parole maintains a broader policy or practice of failing "to render decisions that consider and apply existing statutory and regulatory factors."9 Rather, they claim the Division of Parole "spew[s] generalized principles of statutory, regulatory and case law without applying same to the individual facts and circumstances of each appeal."10 As a result, named plaintiffs claim that they are deprived of rights guaranteed by the Due Process Clause of the Fourteenth Amendment—including due process, equal protection, and trial by jury—as well as the Ex Post Facto Clause of article I, section 10 of the U.S. Constitution.
Plaintiffs' arguments can be distilled into three distinct claims. First, plaintiffs assert that defendants' routine failure to resolve administrative appeals within 120 days of perfection of an appeal violates due process guarantees ("the Timeliness Claim"). Second, plaintiffs claim that defendants' failure to advise parole appellants of the right to institute judicial proceedings if the Parole Board fails to render a decision within 120 days violates their right to access the courts ("the Failure to Advise Claim"). Third, plaintiffs claim that defendants' routine failure to give proper consideration to statutory and regulatory factors and the individual facts of each parole appeal yields arbitrary decisions and enhances sentences in violation of due process, jury rights, and protections against ex post facto punishment ("the Proper Consideration Claim").
In reviewing a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a court must "`accept as true all of the factual allegations contained in the complaint'"11 and "draw all reasonable inferences in the plaintiff's favor."12 A complaint must provide "the grounds upon which [the plaintiff's] claim rests through factual allegations sufficient `to raise a right to relief above the speculative level'"13 in order to survive a motion to dismiss. Although the complaint need not provide "detailed factual allegations,"14 it must nonetheless "amplify a claim with some factual allegations ... to render the claim plausible."15 "[B]ald assertions and conclusions of law will not suffice."16
New York law establishes that a parole applicant may appeal an adverse determination to the state Division of Parole.17 "The appeal process is initiated by the filing of a notice of appeal within 30 days of the date that the inmate ... or his attorney receives written notice of the final decision from which the appeal is taken."18 "The appeal shall be perfected within four months of the date of filing of the notice of appeal"19 "by the filing with the appeals unit of ... a brief, letter or other written document that shall state the rulings challenged and shall explain the basis for the appeal."20 The appeals unit of the Division of Parole reviews perfected appeals and either deems them moot or "issue[s] written findings of fact and/or law and recommend[s] disposition of the appeal."21
The recommendation is then reviewed by a three-member pan el of the Board of Parole, a majority of which "may affirm, modify or reverse the decision."22
The Division of Parole is required by both statute and regulation to assess several factors when making a discretionary recommendation concerning release. First, it must assess two factors related to prior criminality: the seriousness of the offense and the prisoner's criminal history, including "adjustment to any previous probation or parole supervision."23 It must then assess five factors related to rehabilitation and potential success after release:
(i) the institutional record including program goals and accomplishments, academic achievements, vocational education, training or work assignments, therapy and interpersonal relationships with staff and inmates; (ii) performance, if any, as a participant in a temporary release program; (iii) release plans including community resources, employment, education and training and support services available to the inmate; (iv) any deportation order issued by the federal government against the inmate ...; and (v) any statement made to the board by the crime victim or the victim's representative ....24
The Division of Parole is "not required to give each factor equal weight" or "to specifically articulate in its decision each factor it considered."25
The New York Executive Law states, "The rules of the board may specify a time within which any appeal shall be taken and resolved."26 Although the Parole Board has chosen to limit the time to initiate and to perfect an appeal, as described above, it has not set similarly strict limits for the resolution of appeals. Rather, it has established a rule of constructive exhaustion of administrative remedies: "Should the appeals unit fail to issue its findings and recommendation within four months of the date that the perfected appeal was received, the appellant may deem this administrative remedy to have been exhausted and thereupon seek judicial review of the underlying determination from which the appeal was taken."27
Judicial review of a parole determination is available in an Article 78 proceeding in New York State Supreme Court.28 Specifically, New York courts will reverse a determination of the Parole Board "when the Board's decision to deny parole was arbitrary or capricious."29 However, if a prisoner reappears before the Parole Board for biennial review before judicial review of the previous parole denial is concluded, the Article 78 proceeding will be dismissed as moot.30
"The Due Process Clause of the Fourteenth Amendment requires that, generally, a person must be afforded the opportunity for a hearing prior to being deprived of a constitutionally protected liberty or property interest."31 However, "procedural due process protects only important and substantial expectations in life, liberty, and property."32 "[A]lthough `liberty and property are broad and majestic terms,'... `the range of interest protected by procedural due process is not infinite.'"33
"In order for a state prisoner to have an interest in parole that is protected by the Due Process Clause, he must have a legitimate expectancy of release that is grounded in the state's statutory scheme."34 35 Moreover, "state statutes do not create federally protected due process entitlements to specific state-mandated procedures."36
However, regardless of the statutory framework of procedural protections and legitimate expectations, prisoners have a liberty interest against imposition of any "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life."37 The Supreme Court recently suggested that a categorical determination that an inmate serving an indeterminate sentence is permanently ineligible...
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Scott v. Dennison
...to parole, it did "create[ ] an expectancy of a parole determination without reliance on false information." Gordon v. Alexander, 592 F.Supp.2d 644, at 653 n. 56 (S.D.N.Y.2009) (citing Monroe, 932 F.2d at 1442 (citing Thomas v. Sellers, 691 F.2d 487, 489 (11th Cir.1982))). In light of this ......
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...former Chairman of the New York State Division of Parole, pursuant to Federal Rule of Civil Procedure 25(d). 2. See Gordon v. Alexander, 592 F.Supp.2d 644 (S.D.N.Y.2009). 3. See Amended Complaint ("Am. Compl.") ¶¶ 18, 20, 22, 24, 4. See id. 5. Id. ¶ 18. 6. Id. ¶ 24. 7. See id. ¶¶ 19, 21, 23......
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Hirsch v. Suffolk Cnty.
...held, for the same reason, that a prisoner does not have a constitutional liberty interest in parole. See, e.g., Gordon v. Alexander, 592 F. Supp. 2d 644, 650 (S.D.N.Y. 2009); Scott v. Dennison, 739 F. Supp. 2d 342, 353 (W.D.N.Y. 2010); Gordon v. Lemons, 644 F. Supp. 2d 322, 329 (S.D.N.Y. 2......
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Proportionality and parole.
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