REPORT-RECOMMENDATION AND ORDER

GARY L. SHARPE, United States Magistrate Judge

I. Introduction

This matter has been referred to the undersigned for a Report-Recommendation by the Honorable Lawrence E. Kahn, United States District Judge, pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.3(c). On June 7, 2002, the answering defendants filed a Fed.R.Civ.P. 12(b)(6) motion to dismiss (Dkt. No. 47), and a motion for a protective order seeking to stay discovery pending decision on the motion (Dkt. No. 53). On September 11 and October 4, 2002, pro se plaintiff, Kenneth Gilmore, Jr., responded to the motions (Dkt. Nos. 58, 60). After reviewing Gilmore's claims and for the reasons set forth below, the motion to dismiss should be granted and the motion for a protective order is denied as moot.

II. Background

Gilmore brings this 42 U.S.C. § 1983 action claiming that the defendants violated his civil rights under the Fourteenth Amendment. In eight causes of action, he generally alleges that the defendants have repeatedly denied him parole and retaliated against him. He seeks injunctive relief, and compensatory, punitive and nominal damages. Because Gilmore's complaint names twenty-one (21) defendants in eight (8) causes, the court begins with clarification of the complaint. First of all, nine (9) of the defendants have never been served; namely, McSherry, Umina, Gonzalez, Eichelberger, Molik, Treen, Thomas, Mills and Jones. The remaining defendants are named in one or more of the eight causes. Causes 1, 2, 6, 7 and 8 all relate to Gilmore's assertion that he was unconstitutionally denied parole. In those causes, the following answering defendants have been named in one or more of the claims: Smith (1, 2, 6), Graber (1, 2, 6), McQuinn (6), Travis (7), Vizzie (8), Tappen (8) and Gailor (8). Cause 3 is a related pendant State claim, names the answering defendant, Scott, and asserts that the denial of parole violated New York law. Cause 4 is an "Eighth and Fourteenth Amendment" claim of medical malpractice and names the answering defendants Barten, Clair, Sikora and Stone. Cause 5 is a retaliation claim and names the answering defendant Sikora.

The answering defendants move to dismiss, contending that: (1) Gilmore has no constitutional right to parole; (2) violations of prison regulations and/or state law are not actionable under 42 U.S.C. § 1983; (3) the Ex Post Facto Clause is not implicated by these facts; (4) medical malpractice is not actionable under § 1983; and, (5) they are entitled to qualified immunity. The court raises, sua sponte, the failure to join the unserved defendants, and addresses each of the other issues seriatim.

III. Facts

On March 28, 1988, Gilmore was sentenced to a prison term of eighteen years to life on a murder conviction, to run concurrently with a term of seven and one half to fifteen years on an assault conviction. In November of 1991, he had his initial appearance before the Parole Board, and parole was denied. He was again denied parole in 1993, 1995, and 1998. On January 8, 1998, Commissioner McQuinn mailed Gilmore a "parole contract" which listed specific conditions that he was required to meet if he wished to receive "favorable consideration" at his next board appearance (Second Am. Compl. ¶ 68). In November of 1999, Gilmore appeared before Commissioners Scott and Gonzalez. However, the hearing was postponed in order to conduct a mental health evaluation. Subsequently, Gilmore's evaluation was conducted, but defendants Barten, Clair, Sikora and Stone failed to provide the Board with the evaluation in a timely fashion. In December of 1999, Gilmore was again denied parole by Commissioners Smith and Graber.

IV. Discussion A. Legal Standard

Federal Rules of Civil Procedure 12(b)(6) provides that a cause of action shall be dismissed if a complaint fails "to state a claim upon which relief can be granted." In other words, the court should dismiss the complaint pursuant to Rule 12(b)(6), if "it appears beyond doubt that the plaintiff can prove no set of facts in support of the complaint which would entitle him to relief." Phelps v. Kapnolas, 308 F.3d 180,184 (2d Cir. 2002) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Harris v. City of New York, 186 F.3d 243, 247 (2d Cir. 1999). "The task of the court in ruling on a Rule 12(b)(6) motion 'is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.'" Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir. 1998) (quoting Ryder Energy Distribution Corp. v. Merrill Lynch Commodities Inc., 748 F.2d 774, 779 (2d Cir. 1984)). Therefore, in reviewing a motion to dismiss, a "court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor." Phelps, 308 F.3d at 184 (quoting Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994)).

The court "must confine its consideration 'to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken.'" Leonard F. v. Israel Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999) (citation omitted); Hayden v. County of Nassau, 180 F.3d 42, 54 (2d Cir. 1999) (citation omitted). "Moreover, 'when a plaintiff chooses not to attach to the complaint or incorporate by reference a [document] upon which it solely relies and which is integral to the complaint,' the court may nevertheless take the document into consideration in deciding the defendant's motion to dismiss, without converting the proceeding to one for summary judgment." Int'l Audiotext Network, Inc. v. American Tel. and Tel. Co., 62 F.3d 69, 72 (1995) (alteration in original) (citation omitted). With this standard in mind, the court turns to the sufficiency of Gilmore's claims.

B. The Unserved Defendants

Service must be made upon a defendant within 120 days of filing the complaint or any claims against that defendant will be dismissed. Fed.R.Civ.P. 4(m). In this case, defendants McSherry, Umina, Gonzalez, Eichelberger, Molik, Treen, Thomas, Mills, and Jones have never been served. Gilmore's original complaint was filed on June 1, 2001, and almost two years have elapsed without service. Accordingly, the court lacks jurisdiction over the unserved defendants, and recommends dismissal.

C. Right to Parole

In his first, second, seventh and eighth causes of action, Gilmore alleges that the defendants refused to grant him parole. "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." Barna v. Travis, 239 F.3d 169, 170 (2d Cir. 2001) (citations omitted). It is settled law that an inmate does not have a constitutional right to parole. Greenholtz v. Inmates of Neb. Penal Correctional Complex, 442 U.S. 1, 7(1979). "Neither the mere possibility of release . . . nor a statistical probability of release . . . gives rise to a legitimate expectancy of release on parole." Barna, 239 F.3d at 171(citations omitted). Furthermore, "[t]he New York parole scheme is not one that creates in any prisoner a legitimate expectancy of release." Id. at 171.

"The State statute creates a parole board that has the power and the duty to determine 'which inmates serving an indeterminate . . . sentence of imprisonment may be released on parole . . . and when.'" Id. at 171 (citation omitted). "Thus, [i]t is apparent that New York's parole provisions . . . do not establish a scheme whereby parole shall be ordered unless specified conditions are found to exist." Barna, 239 F.3d at 171 (alteration in original) (citation omitted). "[N]o entitlement to release is created [by the parole provisions]." Id. at 171 (alteration in original) (citation omitted).

Moreover, "[t]here is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence." Greenholtz, 442 U.S. at 7. Moreover, "plaintiffs have no liberty interest in parole, and the protections of the Due Process Clause are inapplicable." Barna, 239 F.3d at 171.

In this case, Gilmore alleges that on several occasions he was improperly denied parole. He further suggests that he was given a "contract" which indicated that if he followed the requirements, he would be granted parole. Although the court must construe Gilmore's allegations in the light most favorable to him, those allegations are completely without merit. The record does not show that Gilmore's sentence has expired. As such, Gilmore has no constitutional or inherent right to be conditionally released from prison. Furthermore, as Barna makes clear, Gilmore has no liberty interest in parole and the protections of the Due Process Clause are inapplicable. Accordingly, this court recommends dismissing Gilmore's first, second, sixth, seventh and eighth causes of action involving the various denials of his parole since he has not demonstrated that his sentence has expired, and accordingly, he has no constitutional right to parole.

Additionally, Gilmore's second cause of action alleging that the parole denial violated the Ex Post Facto clause is barred by Circuit precedent and the statute of limitations. The Second Circuit has held that the "Ex Post Facto Clause does not apply to guidelines that do not create mandatory rules for release but are promulgated simply to guide the parole board in the exercise of its discretion." Barna v. Travis, 239 F.3d 169, 171(2d Cir. 2001) (citations omitted). Furthermore, the applicable statute of limitations for a 42 U.S.C. § 1983 action arising in New York is three years. Pinaud v. County of Suffolk, 52 F.3d 1139, 1156 (2d Cir. 1995) (citing Owens v. Okure, 488 U.S. 235, 250-51(1989)). Gilmore contends that in 1991, 1993, 1995, and 1998, the defendants improperly denied him parole in violation of the Ex Post Facto law (Compl. ¶ 57). He filed this suit on June 6, 2001. The actions allegedly taken by the defendants in 1991, 1993, 1995, and 1998 took place more than three years prior to the filing of this suit. Since these allegations occurred outside the three-year statute of limitations, Gilmore's second cause of action is subject to dismissal on this additional basis.

C. Medical Malpractice Claim

In Gilmore's fourth cause of action, he claims that defendants Barten, Clair, Sikora and Stone committed medical malpractice in violation of his due process rights.

[A] complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner. In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.

Estelle v. Gamble, 429 U.S. 97, 106 (1976).

Here, Gilmore's claim that the defendants committed medical malpractice is simply not actionable under 42 U.S.C. § 1983. He contends that the defendants committed medical malpractice when they failed to timely provide a mental health evaluation to the parole board. These facts are simply not tantamount to an Eighth Amendment violation. Moreover, there is nothing in the record to show that he was suffering from a serious medical need. As such, the defendants' delay in supplying the mental health evaluation does not show deliberate indifference to a serious medical need. Accordingly, this court recommends dismissal of Gilmore's fourth cause of action since he fails to state a cognizable claim.

D. Pendent State Law Claims

In Gilmore's third cause of action, he alleges that the answering defendant, Scott, failed to adhere to the applicable state law and guidelines. "[A] violation of state law neither gives [plaintiffs] a 42 U.S.C. § 1983 claim nor deprives defendants of the defense of qualified immunity to a proper § 1983 claim." Doe v. Connecticut Dep't of Child Youth Servs., 911 F.2d 868, 869 (2d Cir. 1990) (citing Robison v. Via, 821 F.2d 913, 922 (2d Cir. 1987) (alteration in original)). Moreover, ". . . [a] § 1983 claim brought in federal court is not the appropriate forum to urge violations of prison regulations or state law; rather, in order to prevail on a § 1983 claim, the allegations asserted must constitute violations of constitutional due process standards." Rivera v. Wohlrab, 232 F. Supp.2d 117, 123 (S.D.N.Y. 2002) (citing Hyman v. Holder, 2001 WL 262665, at 18 (S.D.N.Y. March 21, 2001)) ("Section 1983 imposes liability for violations of rights protected by the Constitution and laws of the United States, not for violations arising solely out of state or common-law principles").

Here, Gilmore claims that state laws were violated in regards to his parole release, but such claims are not actionable under 42 U.S.C. § 1983. When a plaintiff solely alleges violations of prison regulations or state law, federal courts are not the appropriate forum to bring such claims. Accordingly, this court recommends that Gilmore's third cause of action involving the violation of state law should also be dismissed.

E. Retaliation

In Gilmore's fifth cause of action, he claims that Sikora, a senior attorney for the Division of Parole, retaliated against him. Gilmore claims that Sikora punished him for exercising his right to petition the government for redress of grievances. Specifically, Gilmore alleges that he filed charges with the Chief United States Attorney against defendant Travis. Approximately two months later, Gilmore was given a "Notice of Final Declaration of Delinquency" which essentially charged him with a parole violation that had occurred over twenty years earlier. Pl. ['s] Addendum to Pl. ['s] Mem. of Law in Opp'n to Mot. to Dismiss Ex. E. The Second Circuit has repeatedly held that "complaints relying on the civil rights statutes are insufficient unless they contain some specific allegations of fact indicating a deprivation of rights, instead of [a] litany of general conclusions that shock but have no meaning." Barr v. Abrams, 810 F.2d 358, 363 (2d Cir. 1987).

Gilmore is essentially claiming that Sikora retaliated against him because he filed a grievance against Travis, but such conclusory allegations fail to state how Sikora retaliated against him. Gilmore alleges nothing to suggest that Sikora was the person who charged him with a violation of parole. Furthermore, the record does not show that Sikora was involved in the numerous decisions to deny him parole. Simply put, his conclusory allegations have no factual basis, and are insufficient to sustain a retaliation claim. Accordingly, this court recommends that Gilmore's fifth cause of action against Sikora should be dismissed since he fails to state a claim for which relief can be granted.

F. Qualified Immunity

As an alternative basis to grant dismissal of all causes of action as to all answering defendants, the answering defendants argue that they are entitled to qualified immunity. Qualified immunity protects government officials who perform discretionary functions in the course of their employment. It shields them from liability for money damages where "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The doctrine "serves to protect government officials from the burdens of costly but insubstantial lawsuits." Warren v. Keane, 196 F.3d 330, 332 (2d Cir. 1999) (citations omitted). The question of whether qualified immunity will protect a public official depends upon "'the objective legal reasonableness' of the action assessed in light of the legal rules that were 'clearly established' at the time it was taken." Anderson v. Creighton, 483 U.S. 635, 640 (1987) (internal citations omitted). Furthermore, "the contours of the right violated must be sufficiently clear that a reasonable official might understand that his actions violate that right." Keane, 196 F.3d at 332 (quoting Anderson, 483 U.S. at 640). "Three factors are considered in evaluating whether a right was clearly established at the time a § 1983 defendant acted: '(1) whether the right in question was defined with "reasonable specificity"; (2) whether the decisional law of the Supreme Court and the applicable circuit court support the existence of the right in question; and, (3) whether under preexisting law a reasonable defendant official would have understood that his or her acts were unlawful.'" African Trade Information Center, Inc., v. Abromaitis, 294 F.3d 355, 360 (2d Cir. 2002); Charles W. v. Maul, 214 F.3d 350, 360 (2d Cir. 2000). Additionally, the Second Circuit has held that a court may dismiss a claim based upon qualified immunity without first deciding the substantive claims therein. See Horne v. Coughlin, 191 F.3d 244 (2d Cir. 1999).

In this case, parole release prior to the expiration of a valid sentence was not a clearly established right, there was no Ex Post Facto clause violation, there was no Eighth Amendment violation of Gilmore's medical rights, nor were there any facts alleged that suggest retaliation in response to the exercise of First Amendment rights. A fortiori, the defendants could not have known that they were violating Gilmore's rights. Accordingly, as an additional basis to support dismissal, this court recommends that all answering defendants are entitled to qualified immunity on all causes of action.

WHEREFORE, for the foregoing reasons, it is hereby

ORDERED that the answering defendants' motion for a protective order (Dkt. No. 53) is DENIED as moot; and it is

RECOMMENDED that this action be dismissed, sua sponte, for lack of personal jurisdiction over the named defendants who have not been served with the summons and complaint; namely, the Defendants McSherry, Umina, Gonzalez, Eichelberger, Molik, Treen, Thomas, Mills and Jones; and, it is further

RECOMMENDED that the answering defendants' motion to dismiss (Dkt. No. 47) be GRANTED as to all answering defendants on all causes of action for the following reasons:

1. Because there is no constitutional right to parole and Gilmore has, therefore, failed to state a claim for which relief may be granted, as to the Defendant Smith (Causes 1, 2 and 6), as to the Defendant Graber (Causes 1, 2 and 6), as to the Defendant McQuinn (Cause 6), as to the Defendant Travis (Cause 7), as to the Defendant Vizzie (Cause 8), as to the Defendant Tappen (Cause 8), and as to the Defendant Gailor (Cause 8);

2. Alternatively as to Cause 2, because there is no violation of the Ex Post Facto clause and any such claim would be barred by the statute of limitations in any event, as to the Defendants Smith and Graber;

3. Because a violation of state law does not give rise to an actionable civil rights claim under 28 U.S.C. § 1983 and, therefore, Gilmore has failed to state a claim for which relief may be granted, as to Defendant Scott (Cause 3);

4. Because there is no Eighth or Fourteenth Amendment violation in failing to timely provide a mental health evaluation and, therefore, because Gilmore has failed to state a claim for which relief may be granted, as to Defendants Barten, Clair, Sikora and Stone (Cause 4);

5. Because there are no factual allegations of any kind that support a claim of retaliation and, therefore, Gilmore has failed to state a claim for which relief may be granted, as to Defendant Sikora (Cause 5); and,

6. Alternatively as to ALL CAUSES OF ACTION AND ALL ANSWERING DEFENDANTS, because each is entitled to qualified immunity; and it is further

ORDERED that the Clerk of the Court serve a copy of this Order and Report-Recommendation upon the parties by regular mail.

NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to so much of the foregoing report that constitutes recommendations. Such objections shall be filed with the Clerk of the Court within TEN days. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).