Opinion
CIVIL NO. 00-1811 (JBS).
June 5, 2001
Mr. Melvin Johnson, c/o Yusef Sabur, Far Rockaway, NY, Plaintiff,pro se.
John J, Farmer, Attorney General of New Jersey, By: Todd D. Wachtel, D.A.G., OFFICE OF THE NEW JERSEY ATTORNEY GENERAL, Trenton, New Jersey, Counsel for Defendants.
OPINION
In this action filed pursuant to 42 U.S.C. § 1983, plaintiff Melvin Johnson alleges that his civil and constitutional rights were violated by defendants, the New Jersey State Parole Board, Andrew B. Consovoy, Esquire, the New Jersey Department of Corrections, Joyce Prianciai, and Edward Ocskay, when they negligently failed to apply jail credits to which Mr. Johnson claimed he was due and, as a result, held him past his parole eligibility and maximum confinement dates. Mr. Johnson alleges that such conduct increased the length of his confinement and constituted cruel and unusual treatment in violation of the Eighth Amendment of the United States Constitution and violated his due process rights. Mr. Johnson seeks compensatory damages for each day he was held due to defendants' alleged violations and punitive damages in the amount of $500,000.00. Sometime after he filed his complaint, plaintiff achieved his maximum sentence date and was released from Southwoods State Prison.
The exact date of plaintiff's release from Southwoods State Prison is unknown. Plaintiff failed to advise the Court of his release or to submit a change of address notice to the Clerk in this case. As a result, when the Court wrote to plaintiff at Southwoods on April 11, 2001 in an attempt to obtain more specific information about the facts underlying his claim, the letter was returned as undeliverable. The letter referred to the Third Circuit's direction that pro se litigants should be given an opportunity to cure a defect in a complaint and asked plaintiff several questions relating to his New Jersey sentence, his maximum confinement date, his parole eligibility dates, the remedy sought, and the exact nature of his claims. By letter dated April 16, 2001, DAG Wachtel advised the Court that plaintiff had provided him with an address upon his release, specifically, Melvin Johnson, c/o Yusef Sabur, 54-81 Almeda Avenue, Apt. 4-C, Far Rockaway, NY, 11432. DAG Wachtel also advised the Court that he had forwarded a copy of the Court's April 11, 2001 letter to plaintiff at that address. To date, plaintiff has not contacted the Court or responded to the letter, nor have any of the correspondences sent to the Far Rockaway address been returned. Both the Court's April 11th letter and Mr. Wachtel's April 16th letter were filed with the Clerk of Court. (See Clerk's Docket Items 28 and 29.)
Presently before the Court is the motion of defendants Andrew Consovoy, Joyce Prianciai, and Edward Ocskay (collectively "Defendants"), to dismiss the Complaint pursuant to Rule 12(b)(6), Fed.R.Civ.P., citing eleventh amendment immunity and failure to state a claim upon which relief may be granted. For the reasons stated herein, defendants' motion to dismiss plaintiff's remaining claims will be granted, and plaintiff's complaint will be dismissed without prejudice to the filing of a supplemental complaint which cures the factual defects of plaintiff's present complaint.
Defendants the New Jersey State Parole Board and the New Jersey Department of Corrections were dismissed from the case by Order of this Court on June 8, 2000.
I. BACKGROUND
Plaintiff Melvin Johnson ("Johnson") was an inmate at Southwoods State Prison in Bridgeton, New Jersey at the time of the alleged violations in this case. On December 17, 1997, Johnson was arraigned in the New York State Criminal Court on an indictment (No. 13469-97) that was subsequently dismissed on December 9, 1998 by the Honorable Judge Silverman of the Supreme Court of New York, County of Kings. (See Compl., Ex. A and Ex. B, Letter from City of New York, Legal Division to Prianciai of Feb. 18, 2000 at 1.) Again in 1999, plaintiff was arrested and charged on Bronx County Criminal Court docket number 99-x-005120. (Id.) The Bronx County charge was also subsequently dismissed. (Id.)
In total, Johnson was in the custody of the New York City Department of Correctional Services on two occasions: the first from December 17, 1997 until April 1, 1999 (469 days), and the second from April 2, 1999 until April 12, 1999 (11 days). (Id.) At some point during his incarceration in New York, a New Jersey arrest warrant was lodged against Mr. Johnson. (Id.) On April 1, 1999, Johnson was discharged to the custody of the New York City Police Department for arraignment on the New Jersey arrest warrant. (Id. at 2.) Johnson was returned to the custody of the New York City Department of Correctional Services on April 2, 1999, and remained there until April 12, 1999, when he was extradited to New Jersey. (Id.) From April 12, 1999 until his release, plaintiff was incarcerated at Southwoods State Prison. Plaintiff asserts that he is due jail credit for the period of December 9, 1998 (when the Kings County Indictment No. 13469-97 was dismissed) through April 12, 2000 (when he was transferred to the custody of the New Jersey Department of Corrections) because "the only thing that held [him] in confinement upon [his] case being dismissed . . . was the New Jersey State Detainer [sic]." (See Compl., p. 6-A.)
This is an area where the Court requires more information. If plaintiff is correct that he was held in New York in excess of four months for no reason other than the New Jersey warrant, that is significant. The face of plaintiff's complaint and supplemental complaint, however, do not adequately state such a claim. If plaintiff chooses to supplement his complaint, he should submit information about all of his New York arrests, indictments, and confinements relating to the time period at issue. Specifically, the Court needs information about the 1999 arrest and charge of plaintiff in the Bronx County Criminal Court, as cited on page 4 of defendants' brief. Such information would allow the Court to fully consider the merits of plaintiff's claims.
On December 21, 1999, a Parole Board Panel decided to revoke plaintiff's bail and set a fifteen month future eligibility term. (Supplemental Compl., Ex. A, Letter from Ocskay to Johnson.) A March 31, 2000 Parole Board Case Assessment indicated that plaintiff was eligible for parole consideration and that as of December, 1999, his maximum eligibility date was August 13, 2000. (Supplemental Compl., Ex. B.)
On April 19, 2000, Ocskay responded to plaintiff's request for reconsideration of the Parole Board's December, 1999 decision to revoke his parole. (Supplemental Compl., Ex. A, Letter from Ocskay to Johnson.) Ocskay advised plaintiff that the Panel had considered his request on April 10, 2000, and determined that his request should be denied. Ocskay also advised that the Panel had determined that "the credits should be amended to be calculated from December 9, 1998, the date of dismissal of your N.Y. charges. Accordingly, you will receive an amended Notice of Decision as soon as administratively possible to reflect the amendment." (Id.)
Plaintiff's submissions on this point also require supplementation. Although the Court attempted to obtain additional information from plaintiff about the specifics and true nature of his claim ( see Clerk's Docket Items 28 and 29), plaintiff failed to respond to the Court's inquiry. If any supplemental complaint is submitted in an attempt to cure this deficiency, plaintiff should include more factual information about the status of this amendment and whether any resolution was reached prior to his release from custody. Because the Court was not advised of the exact date of plaintiff's release or the details of the New Jersey sentence for which he was incarcerated, no determination on the merits of plaintiff's case can be made.
Johnson claims that because the jail credit was not applied to his New Jersey sentence, defendants "illegally" detained him past what should have been his maximum sentence date, in violation of his Eighth Amendment rights. (See Compl. at p. 5-A.) Plaintiff avers that he repeatedly advised defendants, as well as several social service workers, that he was entitled to jail credit time for the period he was detained in New York after the New York State Criminal Court charges were dismissed (from December 9, 1998 through April 12, 1999) while the New Jersey warrant was lodged against him. (See Compl. at pp. 4 and 4-A.) Specifically, on March 30, 2000, plaintiff submitted a written request to Ms. Darla Ludwig of the Classification Department, requesting information related to his previous requests for jail time credit, and agreeing to be patient while waiting for such information. (See Compl., Ex. C.) Ms. Ludwig responded to the request and advised plaintiff that as soon as she received the information she would forward it to him. (See id.)
Johnson submitted a Complaint, which was received on April 17, 2000, against the New Jersey State Parole Board, Andrew B. Consovoy, Esquire, Chairman, New Jersey Department of Corrections, and Joyce Prianciai, Classification Officer, South Wood State Prison. The Complaint was processed and filed in forma pauperis on June 8, 2000. Also on June 8, 2000, this Court dismissed plaintiff's complaint against New Jersey State Parole Board and New Jersey Department of Corrections. Defendant Edward Ocskay was added as a defendant by Order of this Court on August 3, 2000, after the Clerk of this Court received a complaint in Johnson v. Consovoy, Civil Action No. 00-2641 (SMO), and was directed to file that complaint, which named Ocskay and asserted the untimely parole hearing claim, as a supplemental complaint in this action.
Plaintiff seeks compensation for the alleged failure of all defendants to properly credit him with time served in New York and for their failure to provide a timely parole hearing, injunctive relief to prevent the violations from occurring again, compensatory damages for each day he was held "illegally" from December 9, 1998 to April 12, 1999, and $500,000.00 in punitive damages. On September 8, 2000, defendants Consovoy and Prianciai moved to dismiss plaintiff's complaint for failure to state a claim, pursuant to Rule 12(b)(6), Fed.R.Civ.P. On October 16, 2000, plaintiff filed a motion for entry of default as to defendant Ocskay for failure to answer or otherwise respond to the complaint. On October 30, 2000, this Court denied plaintiff's motion for entry of default as to Ocskay, granted Ocskay leave to file an answer out of time, and granted Ocskay's motion to join in the motion to dismiss filed by Consovoy and Prianciai. Plaintiff opposed this motion to dismiss. For the reasons stated herein, defendants' motion to dismiss plaintiff's complaint will be granted, and plaintiff's claims will be dismissed without prejudice to his ability to file a supplemental complaint.
II. DISCUSSION
The defendants have filed a motion to dismiss the claims in plaintiff's complaint and supplemental complaint for failure to state a claim pursuant to Rule 12(b)(6), Fed.R.Civ.P. Defendants argue, first, that they are immune from suit under the Eleventh Amendment, second, that plaintiff has not stated a constitutional or civil rights violation, third, that the complaint should have been filed as a petition for habeas corpus, and fourth, that plaintiff has alleged no cognizable injury. Plaintiff claims that he sued the defendants in their personal, and not official, capacities and that, by failing to investigate plaintiff's claims, defendants were deliberately indifferent and violated his Eight Amendment and due process rights.
A. Motion to Dismiss Standard
A motion to dismiss under Rule 12(b)(6) for failure to state a claim upon which relief can be granted does not attack the merits of the case, but merely tests the legal sufficiency of the Complaint. See Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996). When considering a Rule 12(b)(6) motion, the reviewing court must accept as true all well-pleaded allegations in the Complaint and view them in the light most favorable to the plaintiff. Jordan v. Fox, Rothschild, O'Brien Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994); Hakimoglu v. Trump Taj Mahal Assoc., 876 F. Supp. 625, 628-29 (D.N.J. 1994), aff'd, 70 F.3d 291 (3d Cir. 1995). In considering the motion, a district court must also accept as true any and all reasonable inferences derived from those facts. See Oshiver v. Levin, Fishbein, Sedran Berman, 38 F.3d 1380, 1384 (3d Cir. 1994). A court may not dismiss the Complaint "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
B. Eleventh Amendment Immunity
The Eleventh Amendment provides:
The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
U.S. Const. amend. XI. The Eleventh Amendment does not explicitly prohibit lawsuits by a state's own citizens but the United States Supreme Court "has consistently held that an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another State." Edelman v. Jordan , 415 U.S. 651, 662-63, 94 S.Ct. 1347, 1355-57, 39 L.Ed.2d 662 (1974); see also Pennhurst State Sch. v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 907, 79 L.Ed.2d 67 (1984). Therefore, absent waiver, neither a state, nor agencies under its control may be subjected to lawsuits in federal court. See Puerto Rico Aqueduct and Sewer Auth. v. Metcalf Eddy, Inc. , 506 U.S. 139, 144 (1993). Eleventh Amendment immunity constitutes an affirmative defense, and as such, it must be proved by the party seeking to assert the benefit of immunity. See Christy v. Pennsylvania Turnpike Comm'n , 54 F.3d 1140, 1144 (3d Cir. 1995).
The Defendants, who now seek Eleventh Amendment immunity from plaintiff's claims, have failed to meet their burden of proving the affirmative defense. There are two types of suits against public officials, such as the ones named in plaintiff's complaint: individual or personal capacity suits and official capacity suits. "Personal-capacity suits seek to impose personal liability upon a government official for actions he takes under color of state law. Official-capacity suits, in contrast, generally represent only another way of pleading an action against an entity of which an officer is an agent." Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 3104, 87 L.Ed.2d 114 (1985) (internal citations omitted); see also Hunter v. Supreme Court of New Jersey, 951 F. Supp. 1161, 1178 (D.N.J. 1996).
There is no Eleventh Amendment bar to suits seeking monetary damages from state officials in their personal or individual capacities, even when the damages are retrospective compensation for past harms, where any damages would be paid from personal and not state funds. See Graham, 473 U.S. at 165, 105 S.Ct. at 3105, 87 L.Ed.2d 114. The Eleventh Amendment does, however, preclude federal courts from awarding retroactive damages against state officials in their official capacity because the state, and not the official, is the real party in interest. Additionally, state officials sued in their official capacities are not considered "persons" under § 1983. See Hafer v. Melo, 502 U.S. 21, 26, 112 S.Ct. 358, 362, 116 L.Ed.2d 301 (1991) (citing Will v. Michigan Dept. of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 2312, 105 L.Ed.2d 45 (1989)).
In such a case any damage award would be paid as a matter of law from the state treasury, in contravention of the Eleventh Amendment. See Edelman , 415 U.S. at 662-63, 94 S.Ct. at 1355-57, 39 L.Ed.2d 662 (the Eleventh Amendment may bar a suit even though a state is not named as a party to the action, provided that the state is the real party in interest); see also Hunter, 951 F. Supp. 1161. There is no Eleventh Amendment bar to suits against a state official in his or her official capacity if the plaintiff is seeking prospective injunctive relief as opposed to retroactive monetary relief. See Hafer v Melo, 502 U.S. 21, 27, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991); Hindes v. Federal Deposit Ins. Corp., 137 F.3d 165-66 (3d Cir. 1998). No such relief is sought in the present case.
Plaintiff Johnson claims that defendants, under color of state law, caused him to be illegally detained and failed to award him proper jail credit for the period of December 9, 1998 to April 12, 1999, and therefore violated his civil rights under 42 U.S.C. § 1983. (Compl. at 4.) Johnson seeks compensatory damages for each day he was allegedly illegally detained and punitive damages in the amount of $500,000.00. This language indicates that plaintiff intended to sue defendants for monetary damages in their individual capacities for actions taken under color of state law. Defendants argue that because they are not specifically named in their individual capacities, they should enjoy Eleventh Amendment Immunity.
In deference to Mr. Johnson's status as a pro se litigant, this Court reads his complaint, which seeks monetary damages for negligence, to name defendants Consovoy, Prianciai, and Ocskay in their personal capacities.See Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. Accordingly, because the Defendants are being sued in their individual capacities for alleged actions or inactions taken under color of state law, there is no Eleventh Amendment bar to plaintiff's suit against them. The Defendants' motion to dismiss the plaintiff's complaint based on Eleventh Amendment immunity will therefore be denied.
C. Plaintiff's Section 1983 Claims
1. Eighth Amendment
Plaintiff claims that defendants violated his Eighth Amendment rights by negligently failing to properly apply jail credits for time served in New York, which allegedly resulted in plaintiff's "illegal" detention at Southwoods State Prison past his maximum sentence date. Defendants assert that plaintiff fails to state a cognizable claim under § 1983 because he asserts only that defendants negligently, and not deliberately, failed to apply jail credits to which he claims he was due.
Neither plaintiff nor defendants provide any details about the New Jersey charge which resulted in plaintiff's incarceration at Southwoods. Also, although plaintiff claims he was held past his primary parole eligibility date, he offers no proof of what that date was or how long he was allegedly held after that date.
The Third Circuit has held that subjecting a prisoner to detention beyond the termination of his sentence violates the Eighth Amendment's proscription against cruel and unusual punishment. See Moore v. Tartler, 986 F.2d 682, 686 (3d Cir. 1993); Sample v. Diecks, 885 F.2d 1099 (3d Cir. 1989) ( Eighth Amendment violation where inmate held nine months and eight days after the expiration of his sentence). Such cases, however, are extremely rare. In Sample, the Court articulated the three elements that a plaintiff must show in order to establish § 1983 liability for incarceration without penological justification:
First, a plaintiff must demonstrate that a prison official had knowledge of the prisoner's problem and thus the risk that unwarranted punishment was being, or would be, inflicted. Second, the plaintiff must show that the official either failed to act or took only ineffectual action under the circumstances, indicating that his response to the problem was a product of deliberate indifference to the prisoner's plight. Finally, the plaintiff must show a casual connection between the official's response to the problem and the unjustified detention.Moore, 986 F.2d at 686 (citing Sample, 885 F.2d at 1110).
The United States Supreme Court has confirmed that recovery under § 1983 may only be had where defendants acted intentionally or with deliberate indifference to the deprivation of the plaintiff's constitutional rights. Wilson v. Seiter, 501 U.S. 294, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). Citing the Wilson decision, the Third Circuit noted that other circuits agree that an eighth amendment violation requires a culpable mental state on the part of defendants, not mere negligent conduct. Moore, 986 F.2d at 686 (citing Haygood v. Younger, 769 F.2d 1350 (9th Cir 1985). In Moore, the plaintiff alleged that the defendants caused him to be unjustifiably imprisoned by demonstrating deliberate indifference to his requests that they investigate the parole board's misinterpretation of a previous sentencing order. The District Court held, and the Third Circuit affirmed, that although Moore's complaint raised serious concerns and the defendant's investigation might have been rather slow and incompetent, there was no evidence that the "investigation was so inept or ineffectual that deliberate indifference [on] the part of the parole board officials [could] be inferred." Moore, 986 F.2d at 687.
Plaintiff's complaint does not, as presently filed, provide enough facts to sufficiently state a basis for a legal claim for an eighth amendment violation under 42 U.S.C. § 1983. Plaintiff alleges only negligence on the part of defendants and does not supply an adequate factual basis for his claims. Defendants' motion to dismiss the complaint, therefore, will be granted. The dismissal, however, will be without prejudice to plaintiff's right to cure the above-mentioned defects in the complaint, pursuant to the terms of the attached Order.
2. Due Process Claim For Delayed Parole Hearings
On June 1, 2000, the Clerk of this Court received a complaint from plaintiff in Johnson v. Consovoy, No. 00-cv-2641 (SMO), alleging that defendants the New Jersey State Parole Board, the New Jersey Department of Corrections, Andrew B. Consovoy, and Edward Ocskay violated his rights under 42 U.S.C. § 1983 by holding plaintiff past his parole eligibility date. On June 8, 2000, the Court dismissed the complaint as to defendants the New Jersey State Parole Board and the New Jersey Department of Corrections. By Order dated August 2, 2000, this Court directed the Clerk to file the complaint in case No. 00-cv-2641 as a supplemental complaint in this case.
Although plaintiff does not actually invoke his due process rights in the supplemental complaint, the Court, in deference to Mr. Johnson's status as a pro se litigant, reads his untimely parole hearing claim as a claim for violation of his procedural due process rights.
In order to state a claim under 42 U.S.C. § 1983, a plaintiff must allege that defendants deprived him of a federal right while acting under color of state law. See 42 U.S.C. § 1983; Moore v. Tartler, 986 F.2d 682, 685 (3d Cir. 1993). "Section 1983 focuses on misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law." Davidson v. O'Lone, 752 F.2d 817, 826 (3d Cir. 1984), aff'd, 474 U.S. 344, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986).
42 U.S.C. § 1983 provides:
Every person who, under color of any state statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the depravation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action of law, suit in equity, or other proper proceeding for redress. . ..
In this case, it is not disputed that the defendants derive their authority from state law and are therefore state actors. Johnson alleges that defendants, acting under color of state law, intentionally delayed his parole eligibility hearings and therefore violated his rights under the Due Process Clause of the Fourteenth Amendment. The Fourteenth Amendment Due Process Clause provides that no State shall "deprive any person of life, liberty, or property, without due process of law." In a procedural due process claim, such as the one asserted by plaintiff Johnson, the challenged deprivation is not itself unconstitutional, but instead it is the "deprivation of such an interest without due process of law" that is unconstitutional. See Zinermon v. Burch, 494 U.S. 113, 125, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990) (citations omitted).
For an action to be a constitutional violation of a liberty interest, a state official must deprive an individual of an interest to which he is entitled. See Seymour/Jones v. D. Stachelek, 1994 WL 6032, *3 (E.D.Pa. Jan. 6, 1994). Specifically, the United States Supreme Court has instructed that "`a person must have more than an abstract need or desire for [parole eligibility]. He must have more than a unilateral expectation of it. He must instead have a legitimate claim of entitlement to it.'"Greenholtz v. Inmates of Neb. Penal Corr. Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979) (quoting Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 22 L.Ed.2d 548 (1972)).
Courts in New Jersey have held that the New Jersey Parole Act of 1979,N.J.S.A. §§ 30:4-123.45 to .69 (the "Act") creates "`a sufficient expectation of parole eligibility to entitle prisoners to some measure of constitutional protection with respect to parole eligibility decisions.'"Watson v. DiSabato, 933 F. Supp. 390, 392 (D.N.J. 1996) (quoting Williams v. New Jersey State Parole Board, 1992 WL 32329, *2 (D.N.J. Feb. 4, 1992) (quoting New Jersey State Parole v. Byrne, 93 N.J. 192, 203, 460 A.2d 103 (1983), aff'd, 975 F.2d 1553 (3d Cir. 1992))). The New Jersey Supreme Court, finding that the New Jersey Parole Act creates a legitimate expectation of parole eligibility for which due process must be given, observed that the statute shifts the burden to the state to show parole is not warranted, providing that a prisoner "shall be released on parole at the time of parole eligibility, unless . . . there is a substantial likelihood that the inmate will commit a crime under the laws of th[e] state if released on parole at such time." Byrne, 93 N.J. at 205, 460 A.2d at 110 (quoting N.J.S.A. 30:4-123.53(a)). Although the Court affirmed the principle that there is no constitutional right to parole, they held that a prisoner's liberty interest in freedom at the end of the parole process, implicated by the advanced eligibility date created byN.J.S.A. 30:4-123.51, is sufficient to invoke procedural due process protections.
Due process is a flexible concept and, as such, requires consideration of what procedural protections are demanded by particular situations.See Byrne, 93 N.J. at 209, 460 A.2d at 112. When considering parole decisions, the interest of the incarcerated prisoner's liberty interest must be weighed against the interests of the state and the objectives of the criminal justice system. This is a fact sensitive inquiry, as "consideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by the government action." Byrne, 93 N.J. at 209, 460 A.2d at 112 (quoting Morrissey v. Brewer, 408 U.S. 471, 481, 2 S.Ct. 2593, 2600, 33 L.Ed.2d 484, 494 (1972)). The primary purpose of due process is to minimize the risk of erroneous or arbitrary decisions. See Greenholtz, 442 U.S. at 13.
In the context of parole hearings, it has been held that inmates are entitled to notice, an opportunity to be heard, and a statement of reasons for the denial of parole. Greenholtz, 442 U.S. at 13; Byrne, 93 N.J. at 211, 460 A.2d at 113; Watson, 933 F. Supp. at 393 (holding that "the process required is notice of the pendency of the parole determination, a statement by the government showing that the prisoner is substantially likely to recidivate, and an opportunity for the prisoner to submit a written response to the state's reasons.")
Plaintiff's supplemental complaint, which addresses the parole eligibility issue, does not provide enough information to state a claim for a violation of due process under § 1983. Plaintiff alleges only that he was held beyond his parole eligibility date and that the defendants failed to credit jail time served in New York, which issue is addressed in section II-C-1, supra. Plaintiff also alleges that his maximum confinement date had passed as of the filing of the complaint, but offers no support of that fact and has not informed the Court of his release date.
Viewing plaintiff's allegations related to his due process claim for delayed parole hearings in a light most favorable to him, this Court finds that Mr. Johnson has failed to state a legally cognizable claim. Plaintiff's case was considered by a Parole Board Panel in December, 1999, at which time parole was revoked. Plaintiff does not allege that he did not get notice of that hearing, and his appeal to the hearing was considered and denied in April, 2000. Plaintiff makes only broad and vague allegations about the circumstances of the alleged due process violations and failed to respond at all to the Court's request to supplement his complaint with necessary information. Because the complaint fails to state a claim for a due process violation, that claim will be dismissed. However, in deference to plaintiff's status as a pro se litigant, and the potential magnitude of his claim if properly plead, this dismissal will be without prejudice.
III. CONCLUSION
For the reasons discussed above, the Court will deny defendants' motion to dismiss based on immunity and will grant defendants' motion to dismiss plaintiff's Eighth Amendment and Due Process Claims under 42 U.S.C. § 1983. Plaintiff's Complaint and Supplemental Complaint will be dismissed without prejudice to plaintiff's right to supplement and adequately cure his claims within the next sixty (60) days. Thereafter, this dismissal will be deemed to be with prejudice. The accompanying Order is entered.
O R D E R
THIS MATTER having come before the Court on motion of defendants to dismiss plaintiff's complaint and supplemental complaint pursuant to Rule 12(b)(6), Fed.R.Civ.P., for failure to state a claim upon which relief may be granted; and the Court having considered the submissions of the parties;
IT IS this day of June, 2001 hereby
ORDERED that defendants' motion to dismiss plaintiff's complaint on the ground of Eleventh Amendment immunity be, and hereby is, DENIED ;
IT IS FURTHER ORDERED that defendants' motion to dismiss plaintiff's complaint and supplemental complaint for failure to state a claim upon which relief may be granted be, and hereby is, GRANTED ; and
IT IS FURTHER ORDERED that plaintiff's Eighth Amendment and Due Process claims pursuant to 42 U.S.C. § 1983 in the complaint and supplemental complaint, respectively, be, and hereby are, DISMISSED WITHOUT PREJUDICE to plaintiff's right to file a Supplemental Complaint upon this docket, within sixty (60) days of today's date, consistent with the accompanying Opinion; if plaintiff fails to do so within 60 days, the dismissal of his Complaint shall be deemed to be with prejudice.
Date
JEROME B. SIMANDLE U.S. District Judge