Gordon v. Lemons
| Decision Date | 24 July 2009 |
| Docket Number | No. 08 Civ. 5673(SAS).,08 Civ. 5673(SAS). |
| Citation | 644 F.Supp.2d 322 |
| Parties | William GORDON, Andre Combs, Robert DiDonato, Delano Brown, and Steven Dennehy as individuals and on behalf of all other similarly situated, Plaintiffs, v. Henry LEMONS, Jr., 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.
I. INTRODUCTION
William Gordon, Andre Combs, Robert DiDonato, Delano Brown, and Steven Dennehy (collectively "plaintiffs") bring the instant suit as individuals and on behalf of all others similarly situated against Henry Lemons, Jr., Chairman of the New York State Division of Parole, and the New York State Division of Parole (collectively "defendants").1 This lawsuit addresses the procedures governing parole determinations in New York State.
Plaintiffs filed the instant suit on June 24, 2008. On January 5, 2009, this Court granted defendants' motion to dismiss in full, with leave to replead a subset of plaintiffs' claims.2 On April 1, 2009, plaintiffs filed an amended complaint, adding an additional plaintiff and bolstering their claims with additional allegations. Defendants now move to dismiss plaintiffs' amended complaint. Despite substantial guidance provided by the Court in the January 5 opinion, plaintiffs have failed to plead with the specificity necessary to survive a motion to dismiss. For the reasons stated below, defendants' motion to dismiss is granted.
II. BACKGROUND
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, Brown is serving a twenty year to life sentence, and Dennehy is serving a ten year to life sentence.3 Each recently sought parole and received a cursory denial from the Board of Parole.4 For example, the adverse determination issued to Gordon states, "All factors considered, the panel concludes that you are a poor candidate for early release."5 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. . . ."6
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.7 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.8 Nor did the Division of Parole inform plaintiffs of any legal effect of the failure to resolve an appeal within 120 days.9
Plaintiffs allege that the outcome of their appeals reflect the broader practices of the Division of Parole.10 They also allege that the Division of Parole maintains a policy or practice of failing "to render decisions that consider and apply existing statutory and regulatory factors."11 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."12 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").13
Plaintiffs' amended complaint buttresses their claims in three ways. First, plaintiffs have added an additional named plaintiff—Steven Dennehy—whose factual circumstances are distinguishable from those of the original four plaintiffs. Specifically, the Appeals Unit of the Division of Parole resolved Dennehy's appeal twenty-one months after he had perfected his appeal and only three months prior to his next parole board appearance.14 Plaintiffs argue that had Dennehy filed an Article 78 petition after the resolution of his administrative appeal, the Article 78 proceeding would have been mooted by his next parole board appearance, rendering the appeal futile.15
Second, plaintiffs have attached four new exhibits to their complaint.16 The first is a copy of a decision of the New York Supreme Court for Albany County, in which Justice Edward A. Sheridan noted the policy of then-Governor George Pataki "to curtail parole for all violent felons."17 The second is the text of a speech given by Vernon Manley, a former member of the New York State Board of Parole, in which Manley describes the cursory process of parole board hearings and the lack of adequate training for members of the board of parole.18 The third is a 2007 report concerning the history of parole in New York State, including a note that the parole rate for Al felonies at that time was approximately three percent.19 The fourth is a decision in a parole appeal, which consists almost entirely of string citations to decisions of the Court of Appeals and the Third Department.20
Third, plaintiffs have added allegations based on statistics produced by the state in response to a Freedom of Information Law request.21 Plaintiffs now allege that the Appeals Unit affirms over ninety-seven percent of the Parole Board's denials of release.22
III. APPLICABLE LAW
In reviewing a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the court must "accept as true all of the factual allegations contained in the complaint"23 and "draw all reasonable inferences in the plaintiffs favor."24 However, the court need not accord "[l]egal conclusions, deductions or opinions couched as factual allegations ... a presumption of truthfulness."25
To survive a 12(b)(6) motion to dismiss, the allegations in the complaint must meet a standard of "plausibility."26 A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."27 Plausibility "is not akin to a probability requirement," rather plausibility requires "more than a sheer possibility that a defendant has acted unlawfully."28 Pleading a fact that is "merely consistent with a defendant's liability" does not satisfy the plausibility standard.29
New York law establishes that a parole applicant may appeal an adverse determination by the Parole Board to the state Division of Parole.30 "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."31 "The appeal shall be perfected within four months of the date of filing of the notice of appeal"32 "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."33 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."34 The recommendation is then reviewed by a three-member panel of the Board of Parole, a majority of which "may affirm, modify or reverse the decision."35
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."36 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 ....37
The Division of Parole is "not required to give each factor equal weight" or "to specifically articulate in its decision each factor it considered."38
The New York Executive Law states, "The rules of the board may specify a time within which any appeal shall be taken and resolved."39 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...
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...Due Process Clause are therefore inapplicable, see id.; Duemmel v. Fischer, 368 F. App'x 180, 182 (2d Cir. 2010); Gordon v. Lemons, 644 F. Supp. 2d 322, 329 (S.D.N.Y. 2009); Howithi v. Travis, No. 06 Civ. 3162 (BSJ) (MHD), 2008 WL 7728648, at *10 (S.D.N.Y. Sept. 16, 2008) (Report & Recommen......
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