Zielinski v. Defreest
| Decision Date | 10 September 2013 |
| Docket Number | 12 Civ. 1160 (JPO) |
| Parties | JEREMY ZIELINSKI, Plaintiff, v. JOANNE M. DEFREEST, et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
Plaintiff Jeremy Zielinski brings this civil rights action, pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), and 42 U.S.C. § 1985, against Defendants Joanne M. DeFreest, Jay P. Driscoll, Christopher McNeill, and Christine Connolly. Plaintiff alleges violations of the First, Fourth, Fifth, and Sixth Amendments to the Constitution, seeking injunctive relief and damages. Before the Court is Defendants' motion to dismiss the Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). For the reasons that follow, Defendants' motion is granted in part and denied in part.
Plaintiff Jeremy Zielinski was, at all relevant times, on supervised released as part of his sentence following a 2006 conviction in the United States District Court for the District of NewJersey ("DNJ") for conspiracy to commit access device fraud, in violation of 18 U.S.C. § 371. As a result of his federal conviction, Zielinski was sentenced to a term of 21 months' imprisonment and 2 years' supervised release. When convicted in the DNJ, Zielinski also had outstanding charges pending in New York State, Warren County, for engaging in sexually explicit communications with an undercover officer posing as a minor.
After his federal sentencing, Zielinski was transferred to New York state custody, where he pleaded guilty to one count of attempted dissemination of indecent material to a minor; one count of promoting sexual performance by a child; and one count of bail jumping, and was subsequently sentenced to a term in state prison. As a result of this conviction, Zielinski was registered as a Level 2 convicted sex offender with New York State.2
Zielinski was advised by his attorney at the time of his DNJ plea that any term of supervised release would run concurrently with a subsequently imposed state sentence.Accordingly, Zielinski believed that his federal term of supervised release would run concurrently with, and accordingly expire during, his state incarceration.
Plaintiff was released from state prison on January 28, 2011, and had no expectation of federal supervision. However, on or around August 1, 2011, the United States Probation Office ("USPO") for the DNJ contacted Zielinski, stating that he was required to be supervised pursuant to the DNJ sentence until January 28, 2013. As Zielinski was living in New York, the DNJ transferred jurisdiction of his supervised release to the Northern District of New York.
Defendant Joanne M. DeFreest ("DeFreest"), a USPO officer, was assigned primary supervision of Plaintiff, and Defendants Jay P. Driscoll ("Driscoll") and Christopher McNeill ("McNeill"), also USPO officers, occasionally assisted in Zielinski's supervision.
At the time of sentencing, the DNJ court imposed four special conditions of supervised release, which were as follows: full financial disclosure; prohibition of incurring any new debts; provision of DNA; and submission to computer equipment inspections. Zielinski alleges that on two separate occasions DeFreest attempted to force him to accept imposition of "sex offender" conditions, including one barring contact with his own son, but Zielinski refused. And while the original requirements of Zielinski's supervised release did not include any "sex offender-specific" conditions, such as limiting contact with minors, on February 2, 2012, Zielinski's conditions were modified after a hearing before Judge McAvoy in the Northern District of New York to include a prohibition on direct or indirect contact with minors other than Plaintiff's own child.
Several months prior to this hearing and imposition of the sex offender conditions, on October 13, 2011, DeFreest presented Zielinski with a directive on USPO letterhead, signed by Driscoll and McNeill, which forbade Zielinski from leaving his home on Halloween—October31, 2011 (the "Halloween Directive" or "the Directive"). Additionally, the Directive prohibited the placement of signs, decorations, decorative lights, or perceived invitations on Zielinski's family home, including the offering of "intriguing treats." Zielinski was also forbidden from answering the door if anyone under eighteen years of age was knocking or was with the knocking individual. While the original Directive was not specifically addressed to Plaintiff, DeFreest explained that it was a categorical restriction, applicable to all those on supervisory release for sex crimes, registered as sex offenders, or with pending charges of a sexual nature.
At the time he received it, Zielinski objected to the Directive on the grounds that (1) he was not on supervised release for a sexual offense; (2) his conditions in no way limited the types of expressive or associational activities in which he was permitted to engage; (3) the Directive violated his right to celebrate the holidays with his family; and (4) prior to imposition of such conditions, there would need to be a modification hearing that expressly addressed his supervised release conditions and the proposed modifications thereto. Additionally, Zielinski objected to the fact that the Directive purported to apply to his entire family home, rather than solely to him. Zielinski also claimed the Directive to be vague, as it failed to define many ambiguous terms, such as "perceived invitations" and "intriguing treats."
In response to Zielinski's objections, DeFreest stated that the USPO could issue such directives even in the absence of specific authorization from the sentencing court. She also claimed that one of the standard conditions of release requires a supervisee to follow any instructions issued by a probation officer. After Zielinski again objected to the characterization of the USPO's authority, he met with both DeFreest and Driscoll, at which point the two officers reiterated that they would seek revocation of supervised release if he did not comply with their instructions as stated in the Directive.
On October 25, 2011, Plaintiff made a written demand that Defendants rescind their Directive before Halloween. The Directive remained in place. On October 28, 2011, Plaintiff telephoned Assistant Deputy Chief Probation Officer Christine Connolly and explained his objections to the Directive. During that phone conversation, Connolly admitted that Defendants lacked the authority to alter the conditions of Zielinski's supervised release without a modification hearing. Instead of correcting the unlawful actions of DeFreest, McNeill, and Driscoll, however, Connolly reiterated that Zielinski was required to follow instructions given by probation officers, adding that he should follow through on resolving the issue in court. Connolly did, however, modify the Directive to the extent of permitting Zielinski to attend his workplace on October 31, 2011.
As a result of the Directive, Plaintiff and his family were prohibited from celebrating Halloween together as they had planned. Zielinski also notes that once Halloween was over, there were no means by which a reviewing court could repair the damage to Zielinski and his family's rights by returning them to what he refers to as the status quo ante.
As noted above, a modification hearing was later held before Judge McAvoy in the Northern District of New York, on February 2, 2012, and the conditions of Zielinski's supervised release were modified to reflect sex offender-specific conditions. For example, all parties agree that Judge McAvoy modified Zielinski's conditions to, inter alia: (1) prohibit direct or indirect contact with minors, excepting Zielinski's own child; (2) mandate avoidance of any area where minors are likely to congregate; and (3) require sex offender registration. (Declaration of Ellen Blain, Dkt. No. 29 ("Blain Decl."), at Ex. G.) Zielinski did appeal the validity of these conditions (Compl. at ¶ 15 n.1), but the Second Circuit, upon review, held that Zielinski's sex offense justified the imposition of sex offender conditions of supervised release. See UnitedStates v. Zielinski, No. 12-595 Cr., 2013 WL 536095, at *3 (2d Cir. Feb. 14, 2013) ().
Zielinski filed his first Complaint in this action in November 2011. (Dkt. No. 1.) In May 2012, Defendants moved to dismiss the Complaint (Dkt. No. 16), and in July 2012, Zielinski filed the FAC, which is the operative Complaint for the purposes of the instant motion (Dkt. No. 23), together with his opposition to Defendants' motion (Dkt. No. 24). Defendants again moved to dismiss the FAC on September 14, 2012. (Dkt. No. 27.)3
A complaint need only contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). "To survive a motion to dismiss under Rule 12(b)(6), however, a complaint must plead 'enough facts to state a claim to relief that is plausible on its face.'" Cruz v. Rose Associates, LLC, No. 13 Civ. 0112 (JPO), 2013 WL 1387018, at *1 (S.D.N.Y. Apr. 5, 2013) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Whenever "the plaintiff pleads factual content that allows the court to draw the reasonableinference that the defendant is liable for the misconduct alleged," Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted), the claim is said to possess facial plausibility. See ATSI Comm., Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (...
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