Wallace v. State

• Decision Date: 28 August 2014
• Docket Number: No. 12–CV–5866 (PKC).,12–CV–5866 (PKC).
• Parties: Troy C. WALLACE, et al., Plaintiffs, v. State of NEW YORK, et al., Defendants.
• Court: U.S. District Court — Eastern District of New York

40 F.Supp.3d 278

Troy C. WALLACE, et al., Plaintiffs,
v.
State of NEW YORK, et al., Defendants.

No. 12–CV–5866 (PKC).

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

Signed Aug. 28, 2014

Motion granted.

[40 F.Supp.3d 282]

Troy C. Wallace, Fishkill, NY, pro se.

Richard T. Geoffrion, Holbrook, NY, pro se.

Marcello M. Aiello, Yaphank, NY, pro se.

[40 F.Supp.3d 283]

Charles McLauren, Bayshore, NY, pro se.
Jehovah Cobin, Patchogue, NY, pro se.
Robert Blunt, West Babylon, NY, pro se.
Angel Tirado, Bronx, NY, pro se.
Earl Calloway, Westbury, NY, pro se.
Susan M. Connolly, N.Y.S. Office of the Attorney General, Rudolph Max Baptiste, Hauppauge, NY, David H. Arntsen, Anne C. Leahey, Devitt Spellman Barrett, Smithtown, NY, Thomas A. Catalano, Lester, Schwab, Katz & Dwyer, LLP, John A. Wait, Oksana Gaussy Wright, Fox Rothschild LLP, New York, NY, for Defendants.

MEMORANDUM & ORDER
PAMELA K. CHEN, District Judge:

Table of Contents

I.
Background
285

A.
Plaintiffs
286

1.	Troy Wallace	286
2.	Marcello Aiello, Jr.	287
3.	Robert Blunt	287
4.	Earl Calloway	287
5.	Jehovah Colon	287
6.	Joshua Factor	288
7.	Richard Geoffrion	288
8.	Charles McLaurin	288
9.	Angel Tirado	288

B.
The Laws
288

1.	State Registration Requirements	288
2.	The State, County, and Town Residency Restrictions	291

i.	State	291
ii.	County	291
iii.	Town	292

C.
Procedural History and Claims
293

II. Discussion
294

A.	Standard of Review	294
B.	Article III Standing	295

1.	Standing to Challenge the State Registration Requirements	296
2.	Standing to Challenge the State Residency Restrictions	297
3.	Standing to Challenge the County and Town Residency Restrictions	300
4.	Standing to Challenge the County's Trailer Program	301

C.
The State's Motion to Dismiss
302

1.	Statute of Limitations	302
2.	Eleventh Amendment Immunity	303
3.	Failure to State a Claim	305

i.	Ex Post Facto Claim Relating to the Current State Registration Requirements	306
ii.	Ex Post Facto Claim Relating to the State Residency Restrictions	311

D.
The Other Parties' Motions to Dismiss
321

1.	Preemption Claims Regarding the County and Town Residency Restrictions	321
2.	Failure to State a Claim	322

i.	Ex Post Facto Claims Relating to the County and Town Residency Restrictions	322
ii.	Equal Protection Claim Relating to the County's Trailer Program	329

3.
Pendent Jurisdiction
331

III. Conclusion
332

[40 F.Supp.3d 284]

In this case (“ Wallace ”),¹ nine individuals (“Plaintiffs”) claim that New York State sex offender registration requirements and residency restrictions punish them retroactively for offenses they already committed and, thus, violate the Ex Post Facto Clause of the Constitution (Article I, Section 9, Clause 3); and that similar residency restrictions under County and Town laws are not only unconstitutional, but preempted by state law. (Dkt. No. 5 (“Am. Compl.”) ¶¶ 1–3.) Plaintiffs also claim that, as a result of the County residency restrictions, they are, or have been, homeless and relegated to County-run trailers, subject to living conditions that infringe upon their Fourteenth Amendment right to equal protection under the law. ( Id. ¶¶ 45–46.)

Defendants—the State of New York (the “State”) ²; the County of Suffolk (the “County”) and Susan Westergaard, in her official capacity on behalf of the Suffolk County Department of Social Services ³ (the “County DSS”) (collectively, the “County Defendants”) ⁴; Mark Epley, in

[40 F.Supp.3d 285]

his official capacity as Mayor on behalf of the Town of Southampton ⁵ (the “Town”) ⁶; and Alexander Roberts, in his official capacity as Executive Director of Community Housing Innovations, Inc. (“CHI”)—move the Court to dismiss the claims against them in the Wallace Complaint. (Dkt. Nos. 68–70; 79.) For the reasons set forth below, the Court grants Defendants' motions in their entirety and dismisses the Wallace Complaint with prejudice, except Plaintiffs' state law preemption claims as to which the Court declines to exercise supplemental jurisdiction and dismisses without prejudice.

I. Background

The Court takes the following facts from the allegations in the Wallace Complaint, which are assumed to be true for purposes of Defendants' motions, and otherwise judicially-noticeable information. See Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir.1993) (“When determining the sufficiency of plaintiffs' claim for Rule 12(b)(6) purposes, consideration is limited to the factual allegations in plaintiffs' amended

[40 F.Supp.3d 286]

complaint, which are accepted as true, to documents attached to the complaint as an exhibit or incorporated in it by reference, to matters of which judicial notice may be taken, or to documents either in plaintiffs' possession or of which plaintiffs had knowledge and relied on in bringing suit.”); see also Chambers v. Time Warner, Inc., 282 F.3d 147, 153 & n. 3 (2d Cir.2002) (citing standard in Brass with approval as “congruent with that of our sister Circuits”).

In construing the claims in this case, the Court recognizes that, because Plaintiffs, as pro se litigants, are to be afforded “special solicitude,” the Wallace Complaint “must be construed liberally and interpreted to raise the strongest [claims] that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474–75 (2d Cir.2006) (per curiam) (quotations omitted).

A. Plaintiffs

As an initial matter, the Wallace Complaint is incomplete, in terms of its allegations as to (i) when, or if, Plaintiffs were convicted of a sex offense, released from prison, placed on probation or parole, and/or classified as a specific risk-level ⁷ of sex offender; and (ii) where they live. ( See State Br., at 2 n. 3, 3, 14; Epley Br., at 2.) Such information, however, is available on the State's sex offender registry website (http:// www. criminal justice. ny. gov/ nsor) and, thus, is judicially-noticeable. See Zielinski v. DeFreest, No. 12–CV–1160, 2013 WL 4838833, at *1 n. 2 (S.D.N.Y. Sept. 10, 2013) (“While [a plaintiff in a Bivens action] does not allege his status [as a Level 2 sex offender], it is evident from the publicly available New York Sex Offender Registry, and accordingly, is a fact of which the Court may take judicial notice.”); see also U.S. v. Akinrosotu, 637 F.3d 165, 168 (2d Cir.2011) (per curiam) (taking judicial notice of the “[Bureau of Prisons's] projected date for the defendant's release from prison” on its “official website”); Williams v. City of N.Y., No. 07–CV–3764, 2008 WL 3247813, at *2 & n. 3 (S.D.N.Y. Aug. 7, 2008) (considering, on a motion to dismiss, the terms of the Section 1983 plaintiff's conviction and sentence, based on judicially-noticeable information “obtained on ... the New York Department of Correction Services Inmate Population Information Search webpage”).⁸

1. Troy Wallace

Plaintiff Troy Wallace committed first-degree sexual abuse (N.Y. Penal Law § 130.65) of a 15–year old female in October 1991. (Ex. A.) Wallace was convicted in April 1992, and is classified as a risk-level two sex offender. ( Id.) Although Wallace was originally sentenced to six months in prison and five years of probation, his probation was revoked in August 1992, and he was resentenced to 18–54 months in prison. (Am. Compl. ¶¶ 4–6.) In November 1995, Wallace was released on parole; his maximum expiration date for parole was May 1997. ( Id. ¶ 7.) Wallace

[40 F.Supp.3d 287]

is now on parole for a “non-sex related subsequent conviction.” ( Id.) Wallace has (i) listed a P.O. Box in Ronkonkoma in the Town of Islip, Suffolk County ( id. at 20),⁹ and (ii) registered a primary residence at a correctional facility in the Town of Riverhead, Suffolk County (Ex. A).¹⁰

2. Marcello Aiello, Jr.

Plaintiff Marcello Aiello, Jr. committed third-degree rape (N.Y. Penal Law § 130.25) of a 16–year old female in February 2007. (Ex. B.) Aiello was convicted in December 2009, and is classified as a risk-level two sex offender. ( Id.) Aiello was sentenced to three years in prison, and has been released on parole with a maximum expiration date of January 13, 2027. ( Id.) Aiello has (i) listed an address in Yaphank in the Town of Brookhaven, Suffolk County (Dkt. No. 5–1), and (ii) registered a primary residence at a correctional facility in the Town of Collins, Erie County (Ex. B).

3. Robert Blunt

Plaintiff Robert Blunt committed first-degree sexual abuse (N.Y. Penal Law § 130.65) of a 64–year old female in November 1999. (Ex. C.) Blunt was convicted in February 2000, and is classified as a risk-level three sex offender and a “[s]exually [v]iolent [o]ffender.” ( Id.) Blunt was sentenced to seven years in prison, and has been released on parole with a maximum expiration date of September 25, 2017. ( Id.) Blunt has (i) listed an address in West Babylon in the Town of Babylon, Suffolk County (Dkt. No. 5–2), and (ii) registered a primary residence at a correctional facility in the Town of Malone, Franklin County (Ex. C).

4. Earl Calloway

Plaintiff Earl Calloway committed first-degree rape and first-degree sexual conduct against a child (N.Y. Penal Law §§ 130.35, 130.75) in March 1999; the victim was a 10–year old female. (Ex. D.) Calloway was convicted in August 2000, and is classified as a risk-level three sex offender and a “[s]exually [v]iolent [o]ffender.” ( Id.) Calloway's sentence was eight years in prison; he has been released, but is not on parole. ( Id.) Calloway has (i) listed a P.O. Box in Holbrook in the Towns of Islip and Brookhaven, Suffolk County (Dkt. No. 5–3),¹¹ and (ii) registered a primary residence in Freeport in the Town of Hempstead, Nassau County (Ex. D).

5. Jehovah Colon

Plaintiff Jehovah Colon (incorrectly appearing as “Cobin” on the docket) ¹² committed first-degree attempted rape ( N.Y. Penal Law § 130.35) of two females, an 8–year old and an 11–year old, in April 2001. (Ex. E.) Colon was...