Miller v. Smith

Decision Date16 September 2021
Docket Number21-CV-2949 (JS)(ART)
PartiesDANIEL MILLER, and MARY MILLER, Plaintiffs, v. ANDRE SMITH, Parole Officer; TANYA HUBBARD, Senior Parole Officer; TINA M. STANFORD, Chairwoman, Board of Parole; NYSDOCCS, ROGER TRAYNOR, Senior Offender Rehabilitation Coordinator at Franklin Correctional Facility; COURTNEY LEONARD, Senior Offender Rehabilitation Coordinator at Franklin Correctional Facility; MS. MORALES, Offender Rehabilitation Coordinator at Green Haven Correctional Facility; COUNTY OF NASSAU; JOHN DOE, Commissioner of the Nassau County Department of Social Services; ANTHONY ANNUCCI, Acting Commissioner of DOCCS; A. RUSSO, Superintendent of the Green Haven Correctional Facility, Defendants.
CourtU.S. District Court — Eastern District of New York

For Plaintiff: Steven Bandel, Esq. Bandel & Bandel, LLP

For Defendant Stanford: Helena Ann Lynch, Esq. NYS Office of The Attorney General Nassau

For Defendant Annucci: Toni E. Logue, Esq. NYS Office of The Attorney General Nassau Regional Office

For Defendant County of Nassau: Liora M. Ben-Sorek, Esq. Nassau County's Attorney's Office

All Other Defendants: No. appearances.



On June 22, 2021, the Court issued an Omnibus Order[1]wherein it deferred ruling on the portion of the Injunction Application of Plaintiffs Daniel Miller ("Miller") and Mary Miller ("Mary") seeking preliminary injunctive relief. (See Injunction Application, ECF No. 3; see also Omnibus Order.) Presently, before the Court is the deferred portion of the Injunction Application. The State Defendants defined infra, object. For the reasons that follow, the balance of the Injunction Application is DENIED.[2]


I. Relevant Factual Background

Plaintiffs Daniel Miller, a level 3 sex offender who completed his sentence on April 15, 2021 and is awaiting housing that complies with the restrictions of the Sexual Assault Reform Act ("SARA"), and his mother, Mary Miller, assert various constitutional challenges, pursuant to 42 U.S.C. § 1983, to certain decisions regarding . . . Miller's post-release housing. Miller is currently housed at the Residential Treatment Facility ("RTF") in Green Haven Correctional Facility, where he is on a waitlist for a shelter placement that complies with the prohibition in SARA against certain sex offenders entering within 1, 000 feet of a school. (State Response, ECF No. 29, at 1; see also Singletary Decl., ECF No. 31-2, ¶¶5-6 (averring, inter alia, that Miller is on waiting list for SARA-compliant housing, but that "there are other SARA- restricted parolees who have been awaiting housing for a longer period of time than he").) More particularly, Miller had proposed Mary's home for his post-release housing placement. However, Defendant Smith, the parole officer tasked with investigating that proposal recommended that Miller's placement in Mary's home be denied for two reasons. (See Smith Decl., ECF No. 31, ¶7 .) First, "it would be inappropriate and unsafe for the elderly, disabled Mary Miller to have as her caretaker someone[, i.e., Miller, ] who had previously stolen $34, 000 from her." (Id. at ¶8; see also Id. at ¶¶4-7). Second, the sexual assault of which Miller was convicted took place in Mary's home. (See id. at ¶ll ("[Miller's] underage victim was drugged and was physically helpless while . . . Miller sexually assaulted him in one of the bedrooms in [Mary]'s home.").) Thus, Defendant Smith determined "it would be detrimental to the safety of Mary Miller and of the community to allow Daniel Miller to reside in the home where he committed sexual crimes and where he would be the caretaker for his elderly, disabled mother from whom he had previously stolen $34, 000." (Id. at ¶I4.) Defendant Hubbard, a senior parole office who was Smith's supervisor and whose duties included reviewing investigations of proposed housing placements for individuals on post-release supervision, including Miller's placement, agreed with Smith's reasoning and ultimate recommendation that Miller not be placed in Mary's house post-release. (Hubbard Decl., ECF No. 31-1.)

II. Plaintiffs' Injunction Application and Relevant Procedural History

When Plaintiffs Miller and Mary commenced this § 1983 civil rights action on May 25, 2021, they also filed their Injunction Application. Of significance, they sought a mandatory injunction that would direct: Defendants STANFORD, SMITH, HUBBARD[, ] and MORALES [ (hereafter, collectively, the "Injunction Defendants")] to either:

a. IMMEDIATELY Release Plaintiff DANIAL MILLER and deliver him to the Nassau County Department of Social Services for placement in a SARA-Compliant Shelter or Motel, or, in the alternative;
b. IMMEDIATELY approve Plaintiff DANIEL MILLER's residence with his mother, Plaintiff MARY MILLER, to care for her extraordinary medical needs; ....

(Injunction Application at 2, ¶l(a)&(b).) The Injunction Application was supported by several affidavits, including from Miller and Mary. (See ECF Nos. 3-2 & 3-1, respectively.)

On June 22, 2021, this Court issued the Omnibus Order, which, among other things (1) denied the Injunction Application to the extent it sought a TRO (see Omnibus Order at 7-8), and (2) deferred ruling on the portion of the Injunction Application that sought a preliminary injunction pending proper notice (see id. At 6-7; see also id. at 7 (``[T]he Court defers ruling on this portion of [the] Injunction Application until such time as Defendants have received notice of same and have had an opportunity to respond.")) . Plaintiffs were given until July 9, 2021 to serve the Defendants with, inter alia, the Injunction Application, and Defendants were given until July 23, 2021 to show cause why the requested preliminary injunction should not be issued. (See id. at 8-9.)

On July 2, 2021: (1) Attorney Steven Bandel (hereafter, "Counsel Bandel") filed (a) a Notice of Appearance on behalf of Plainitffs (see ECF No. 17), and (b) proposed summonses for the Injunction Defendants, as well as for Defendants Taynor, Leonard, Nunziata, [4] Annucci, and A. Russo (hereafter, collectively with the Injunction Defendants, the "State Defendants"), and County of Nassau (hereafter, the "County Defendant"; together with the State Defendants, the "Defendants") (see ECF No. 18 at 2-3 ("Rider `A' to Summons") (hereafter, the "Summons Rider")); and (2) the Court filed Miller's June 28, 2021 pro se Motion for Reconsideration, addressing the denial of his TRO request (hereafter, the "Reconsideration Motion"). (See ECF No. 19.)

On July 6, 2021, summonses were issued for the Defendants named in the Summons Rider. (See ECF No. 21.) On July 21, 2021, counsel for the State Defendants advised the Court, inter alia, that three of the four Injunction Defendants had not yet been served and inquired whether the Court ``wishe[d] to adjourn the [OSC] response date to allow Plaintiffs additional time to serve Defendants, at least those named in the [Injunction Application]." (State Defs.' Ltr., ECF No. 26, at 1 ("The undersigned inquired of Plaintiff's counsel, notifying him that we have no record of service on several of the Defendants, and in response counsel stated that Smith and Hubbard have not been served. Counsel further stated he believed Stanford had been served but he was awaiting proof. The undersigned then asked if Plaintiffs planned to serve Smith and Hubbard before Friday[, i.e., July 23, 2021], and whether Morales had been served, but thus far has received no response." (citations omitted)).) [T]he Court decline[d] to take such action." (July 22, 2021 Elec. ORDER.) Notably, Counsel Bandel never requested any extension of the Court's service deadline. (See Case Docket, in toto.) Review of the record indicates the Injunction Defendants and other Defendants were served by mail on July 6, 2021. (See Thomas Aff. of Serv., ECF No. 34-1 (filed July 23, 2021).)

III. The Defendants' OSC Responses

The County Defendant responded to the Court's OSC stating that ``[b]ecause Daniel Miller is currently committed to the custody of New York State, specifically its Department of Corrections and Community Services [ ("DOCCS") ], the County of Nassau has no authority to take a position with respect to his request for release." (County Response, ECF No. 28, at 1.) As a result, the County Defendant "defers" to the State Defendants and "this Court for a ruling on the preliminary injunction." (Id.; see also id. at 2 ("In light of the County's lack of jurisdiction to make release determinations over incarcerated individuals, the County defers to this Court to rule on the preliminary injunction. And, in the event that Daniel Miller is released, the County defers to the DOCCS Division of Parole to ensure that whatever housing placement Miller has is safe for the community.").)

The State Defendants responded and initially argue that, as to the Injunction Defendants, Plaintiffs are not entitled to injunctive relief as against Stanford or Morales since neither of those defendants have any authority to implement the relief sought.[5] (See State Response, ECF No. 29, at 10 (arguing that [a] prerequisite to obtaining injunctive relief is demonstrating that the defendants have the authority to provide the relief requested").)

The State Defendants further contend that "Plaintiffs fall far short of showing a clear or substantial likelihood of success on their claims," i.e., the alleged violation of Miller's constitutional rights under the Fourteenth, Eighth, and First Amendments[6] caused by his continued placement in the RTF while awaiting appropriate and SARA-compliant housing (hereafter, the "Alleged Offending Circumstance"), and the alleged violation of Mary's Fourteenth and First Amendment rights caused by the same Alleged Offending...

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