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Drug Program Removal Requires Due Process
The Eastern District Court of New York held that prisoners in New York
States High Impact Incarceration Program had a state created liberty
interest in remaining in the program. Removal from the program required due
process.
Michael Galloway was a state parole violator who had been removed from a
substance abuse program that had promised his release from custody upon his
successful completion of the program. Because of his premature removal from
the program he was incarcerated for ninety-three days and then released.
Gallaway violated the terms of his parole a second time and again was
placed into the substance abuse program with the exact promises and
conditions as before. Again he was removed from the program without a
hearing. This time Gallaway was incarcerated for ninety-six days. Galloway
filed three separate 42 U.S.C. § 1983 civil rights complaints which the
U.S. Magistrate consolidated. The first two alleged due process violations
stemming from his removal from removal from the substance abuse program.
The third § 1983 claim alleged a violation under New York Mental Hyg. §
22.03 and New York Comp. Codes R. and Regs. title 14, § 1020.9 violated by
his removal from the drug program without due process.
Defendant moved to dismiss under FRCP rule 12(c). The 12(c) motion was
based on two grounds: (1) It alleges that Galloway had no protected due
process right to remain in the "High Impact Incarceration Program" (HIIP);
and (2) a 42 U.S.C . § 1983 complaint can not be based on the alleged
violation of state law. (Note: the standard for a motion to dismiss under
FRCP rule 12(c) is the same as a motion under 12(b)(6). See Irish Lesbian
v. Giuliani, 143 F.3d 638 (2nd Cir. 1998)).
Citing Kios v. Haskell, 48 F.3d 82 (2nd Cir. 1995) the U.S. District court
determined that a liberty interest under the 14th amendment arises either
directly from the due process clause itself or from a state's laws. A state
conferred liberty interest carries two requirements: (1) the state must
have articulated specified substantive predicates which limit the
discretion of state officials; and (2) it must have employed with
explicitly mandatory language, requiring state officials to follow those
substantive predicates.
Since Galloway had a protected right to remain in the HIIP the court held
that there were procedures governing the removal of participants which the
state had not followed and which constituted a due process error in
Galloway's removal. see: Galloway v. Suffolk County C.F., 232 F.Supp.2d 4
(E.D. NY 2002).
States High Impact Incarceration Program had a state created liberty
interest in remaining in the program. Removal from the program required due
process.
Michael Galloway was a state parole violator who had been removed from a
substance abuse program that had promised his release from custody upon his
successful completion of the program. Because of his premature removal from
the program he was incarcerated for ninety-three days and then released.
Gallaway violated the terms of his parole a second time and again was
placed into the substance abuse program with the exact promises and
conditions as before. Again he was removed from the program without a
hearing. This time Gallaway was incarcerated for ninety-six days. Galloway
filed three separate 42 U.S.C. § 1983 civil rights complaints which the
U.S. Magistrate consolidated. The first two alleged due process violations
stemming from his removal from removal from the substance abuse program.
The third § 1983 claim alleged a violation under New York Mental Hyg. §
22.03 and New York Comp. Codes R. and Regs. title 14, § 1020.9 violated by
his removal from the drug program without due process.
Defendant moved to dismiss under FRCP rule 12(c). The 12(c) motion was
based on two grounds: (1) It alleges that Galloway had no protected due
process right to remain in the "High Impact Incarceration Program" (HIIP);
and (2) a 42 U.S.C . § 1983 complaint can not be based on the alleged
violation of state law. (Note: the standard for a motion to dismiss under
FRCP rule 12(c) is the same as a motion under 12(b)(6). See Irish Lesbian
v. Giuliani, 143 F.3d 638 (2nd Cir. 1998)).
Citing Kios v. Haskell, 48 F.3d 82 (2nd Cir. 1995) the U.S. District court
determined that a liberty interest under the 14th amendment arises either
directly from the due process clause itself or from a state's laws. A state
conferred liberty interest carries two requirements: (1) the state must
have articulated specified substantive predicates which limit the
discretion of state officials; and (2) it must have employed with
explicitly mandatory language, requiring state officials to follow those
substantive predicates.
Since Galloway had a protected right to remain in the HIIP the court held
that there were procedures governing the removal of participants which the
state had not followed and which constituted a due process error in
Galloway's removal. see: Galloway v. Suffolk County C.F., 232 F.Supp.2d 4
(E.D. NY 2002).
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Related legal case
Galloway v. Suffolk County C.F.
| Year | 2002 |
|---|---|
| Cite | 232 F.Supp.2d 4 (E.D. NY 2002). |
| Level | District Court |
| Attorney Fees | 0 |
| Damages | 0 |
| Injunction Status | N/A |
GALLOWAY v. SUFFOLK COUNTY CORRECTIONAL FACILITY, 232 F.Supp.2d 4 (E.D.N.Y. 11/05/2002)
[1] United States District Court, Eastern District of New York
[2] 00-CV-1620 (ADS, WDW), 00CV2286 (ADS, WDW), 00CV4241 (ADS, WDW)
[3] 232 F. Supp.2d 4, 2002
[4] November 5, 2002
[5] MICHAEL GALLOWAY, PLAINTIFF,
V.
SUFFOLK COUNTY CORRECTIONAL FACILITY, WESLEY BEDNOWSKI AND SGT. WELENSKI, DEFENDANTS. MICHAEL GALLOWAY, PLAINTIFF, V. SUFFOLK COUNTY CORRECTIONAL FACILITY, AND LT. PRESTON J. SINGER, DEFENDANTS. MICHAEL GALLOWAY, PLAINTIFF, V. SUFFOLK COUNTY CORRECTIONAL FACILITY, HIGH IMPACT INCARCERATION PROGRAM AND WESLEY BEDNOWSKI, DEFENDANTS.
[6] Robert E. Harlow, Esq., Oceanside, Ny, for Plaintiff.
[7] Suffolk County Attorney's Office by Assistant County Attorney Arlene S. Zwilling, Hauppauge, Ny, for Defendants.
[8] The opinion of the court was delivered by: Arthur D. Spatt, United States District Judge
[9] MEMORANDUM OF DECISION AND ORDER
[10] The plaintiff Michael Galloway ("Galloway" or the "plaintiff") alleges that the defendants the Suffolk County Correctional Facility (the "Correctional Facility"), Wesley Bednowski ("Bednowski"), Sergeant Welenski ("Welenski"), Lieutenant Preston J. Singer ("Singer") and the High Impact Incarceration Program (the "HIIP") (collectively, the "defendants") deprived him of his right to due process under the United States Constitution when they removed him twice from the HIIP in violation of 42 U.S.C. § 1983, N.Y. Mental Hyg. § 22.03 and N.Y. Comp. Codes R. & Regs. tit. 14, § 1020.9. Presently before the Court is a motion by the defendants for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.
[11] I. BACKGROUND
[12] A. The Procedural History
[13] The present case is a consolidated action arising out of three separate actions: Galloway v. Bednowski, No. 00CV1620 (E.D.N.Y. filed Mar. 20, 2000); Galloway v. Suffolk County Corr. Facility, No. 00CV2286 (E.D.N.Y. filed Apr. 20, 2000); and Galloway v. Suffolk County Corr. Facility, No. 00CV4241 (E.D.N.Y. filed July 20, 2000). On June 30, 2001, United States Magistrate Judge William D. Wall consolidated the three actions under docket number 00CV1620. On August 14, 2001, the plaintiff filed the Consolidated Amended Complaint (the "Complaint").
[14] B. The Complaint
[15] 1. The Parties
[16] The facts are taken from the Complaint unless otherwise noted. The plaintiff is a resident of Suffolk County. The Correctional Facility is a penal institution in Suffolk County. Bednowski is the appointed Warden and Chief Administrative Officer of the Correctional Facility and the HIIP. Welenski and Singer are corrections officers at the Correctional Facility. Also, each served as the director of the HIIP for a period of time relevant to this action. The HIIP is a program designed to assist incarcerated, parole violators with substance abuse problems.
[17] 2. The Facts
[18] In fall 1997, the plaintiff was incarcerated at the Correctional Facility on a parole violation. On October 4, 1997, the plaintiff signed a contract and agreed to participate in the HIIP instead of being sentenced as a parole violator. The contract provided that the plaintiff would be released from custody upon his successful completion of the program.
[19] On November 12, 1997, the Correctional Facility gave the plaintiff a misbehavior report alleging several violations of its Rules and Regulations Handbook. Although the specific violations are not provided, the Complaint alleges that the violations occurred outside the "purview" of the HIIP. Shortly thereafter, Welenski, the director of the HIIP at that time, and other unnamed corrections officers removed the plaintiff from the HIIP without providing him any written notice of why he was being removed or what review process was available to him. On December 1, 1997, which was the date that the plaintiff was to be released upon satisfactory completion of the HIIP, he was allegedly held over for a final, parole-revocation hearing; was found guilty of a parole violation; and was sentenced to a period of incarceration for ninety-three days.
[20] In February 2000, the plaintiff was again incarcerated at the Correctional Facility on a parole violation. On February 21, 2000, the plaintiff signed a contract and agreed to participate in the HIIP instead of being sentenced as a parole violator. The contract provided that the plaintiff would be released from custody upon his successful completion of the program. On March 23, 2000, Singer, the director of the HIIP at that time, gave the plaintiff a "document" stating that he was no longer a participant in the HIIP. The "document" stated that Singer discharged him from the program based upon the request of one Dorothy Picente a counselor in the HIIP. The "document" did not set forth the specific reasons for the discharge and did not contain any notice of the right to request a review of the decision. The plaintiff alleges that this removal procedure violated his right to due process under the Constitution.
[21] Next, the plaintiff alleges that he was ignored when he tried to resolve the issue of his discharge in the "informal grievance process (verbal)". Thereafter, the plaintiff allegedly requested a formal grievance form but an unspecified individual denied that request. Also, the plaintiff allegedly sent a letter to the defendants but received no response. Then, the plaintiff commenced an Article 78 proceeding on the ground that the HIIP violated his right to due process and that he should be given the agreed-upon cancellation of delinquency for the parole violation. That proceeding purportedly terminated because of unspecified procedural difficulties. Finally, the plaintiff alleges that he was held over for a final parole-revocation hearing, was found guilty of a parole violation and was sentenced to a period of incarceration for about ninety-six days.
[22] The Complaint consists of three claims. The first claim alleges a violation of Section 1983 due to the plaintiff's removal from the HIIP in November 1997 without proper due process. The second claim alleges a violation of Section 1983 due to the plaintiff's removal from the HIIP in March 2000 without proper due process. The third claim alleges a violation of Section 1983, N.Y. Mental Hyg. § 22.03 and N.Y. Comp. Codes R. & Regs. tit. 14, § 1020.9 in that the HIIP adopted and maintained a policy of involuntarily removing participants from the program without due process by relying on language inserted in its application for entry and conditions of participation which purports to either waive the right to due process or consent to arbitrary and capricious removal from the program. The defendants move to dismiss the Complaint pursuant to Rule 12(c) on two grounds: (1) the plaintiff had no protected due process right to remain in the HIIP; and (2) Section 1983 cannot be based upon the alleged violation of a state law or regulation.
[23] II. DISCUSSION
[24] A. The Standard
[25] The standard for a motion to dismiss under Rule 12(c) is the same as a motion under Rule 12(b)(6). Irish Lesbian and Gay Org. v. Giuliani, 143 F.3d 638, 644 (2d Cir. 1998). The dismissal of a complaint for failure to state a claim pursuant to Rule 12(b)(6) is proper only where "`it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief.'" ICOM Holding, Inc. v. MCI Worldcom, Inc., 238 F.3d 219, 221 (2d Cir. 2001) (quoting Harris v. City of New York, 186 F.3d 243, 247 (2d Cir. 1999)). "At the Rule 12(b)(6) stage, `[t]he issue is not whether a plaintiff is likely to prevail ultimately, but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleading that a recovery is very remote and unlikely but that is not the test.'" Sims v. Artuz, 230 F.3d 14, 20 (2d Cir. 2000) (quoting Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998)). In a Rule 12(b)(6) motion, a court's role 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.'" Sims, 230 F.3d at 20 (quoting Ryder Energy Distribution Corp. v. Merrill Lynch Commodities Inc., 748 F.2d 774, 779 (2d Cir. 1984) (internal quotation marks omitted)).
[26] In deciding a 12(b)(6) motion, a court must accept as true all material facts alleged in the complaint and draw all reasonable inferences in the nonmoving party's favor. ICOM Holding, 238 F.3d at 221. "To survive a motion to dismiss, [the plaintiff's] claims must be `supported by specific and detailed factual allegations,' not stated `in wholly conclusory terms.'" Friedl v. City of New York, 210 F.3d 79, 85-86 (2d Cir. 2000) (quoting Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983)). Thus, "[d]ismissal is `appropriate only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Friedl, 210 F.3d at 83 (quoting Harris, 186 F.3d at 250). "`This rule applies with particular force where the plaintiff alleges civil rights violations . . . .'" Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir. 2000) (quoting Chance, 143 F.3d at 701).
[27] In a motion to dismiss under Rule 12(b)(6), a 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). The Court decides the Rule 12(b)(6) motion based upon the Complaint, the documents appended and incorporated by reference and the matters of which judicial notice may be taken.
[1] United States District Court, Eastern District of New York
[2] 00-CV-1620 (ADS, WDW), 00CV2286 (ADS, WDW), 00CV4241 (ADS, WDW)
[3] 232 F. Supp.2d 4, 2002
[4] November 5, 2002
[5] MICHAEL GALLOWAY, PLAINTIFF,
V.
SUFFOLK COUNTY CORRECTIONAL FACILITY, WESLEY BEDNOWSKI AND SGT. WELENSKI, DEFENDANTS. MICHAEL GALLOWAY, PLAINTIFF, V. SUFFOLK COUNTY CORRECTIONAL FACILITY, AND LT. PRESTON J. SINGER, DEFENDANTS. MICHAEL GALLOWAY, PLAINTIFF, V. SUFFOLK COUNTY CORRECTIONAL FACILITY, HIGH IMPACT INCARCERATION PROGRAM AND WESLEY BEDNOWSKI, DEFENDANTS.
[6] Robert E. Harlow, Esq., Oceanside, Ny, for Plaintiff.
[7] Suffolk County Attorney's Office by Assistant County Attorney Arlene S. Zwilling, Hauppauge, Ny, for Defendants.
[8] The opinion of the court was delivered by: Arthur D. Spatt, United States District Judge
[9] MEMORANDUM OF DECISION AND ORDER
[10] The plaintiff Michael Galloway ("Galloway" or the "plaintiff") alleges that the defendants the Suffolk County Correctional Facility (the "Correctional Facility"), Wesley Bednowski ("Bednowski"), Sergeant Welenski ("Welenski"), Lieutenant Preston J. Singer ("Singer") and the High Impact Incarceration Program (the "HIIP") (collectively, the "defendants") deprived him of his right to due process under the United States Constitution when they removed him twice from the HIIP in violation of 42 U.S.C. § 1983, N.Y. Mental Hyg. § 22.03 and N.Y. Comp. Codes R. & Regs. tit. 14, § 1020.9. Presently before the Court is a motion by the defendants for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.
[11] I. BACKGROUND
[12] A. The Procedural History
[13] The present case is a consolidated action arising out of three separate actions: Galloway v. Bednowski, No. 00CV1620 (E.D.N.Y. filed Mar. 20, 2000); Galloway v. Suffolk County Corr. Facility, No. 00CV2286 (E.D.N.Y. filed Apr. 20, 2000); and Galloway v. Suffolk County Corr. Facility, No. 00CV4241 (E.D.N.Y. filed July 20, 2000). On June 30, 2001, United States Magistrate Judge William D. Wall consolidated the three actions under docket number 00CV1620. On August 14, 2001, the plaintiff filed the Consolidated Amended Complaint (the "Complaint").
[14] B. The Complaint
[15] 1. The Parties
[16] The facts are taken from the Complaint unless otherwise noted. The plaintiff is a resident of Suffolk County. The Correctional Facility is a penal institution in Suffolk County. Bednowski is the appointed Warden and Chief Administrative Officer of the Correctional Facility and the HIIP. Welenski and Singer are corrections officers at the Correctional Facility. Also, each served as the director of the HIIP for a period of time relevant to this action. The HIIP is a program designed to assist incarcerated, parole violators with substance abuse problems.
[17] 2. The Facts
[18] In fall 1997, the plaintiff was incarcerated at the Correctional Facility on a parole violation. On October 4, 1997, the plaintiff signed a contract and agreed to participate in the HIIP instead of being sentenced as a parole violator. The contract provided that the plaintiff would be released from custody upon his successful completion of the program.
[19] On November 12, 1997, the Correctional Facility gave the plaintiff a misbehavior report alleging several violations of its Rules and Regulations Handbook. Although the specific violations are not provided, the Complaint alleges that the violations occurred outside the "purview" of the HIIP. Shortly thereafter, Welenski, the director of the HIIP at that time, and other unnamed corrections officers removed the plaintiff from the HIIP without providing him any written notice of why he was being removed or what review process was available to him. On December 1, 1997, which was the date that the plaintiff was to be released upon satisfactory completion of the HIIP, he was allegedly held over for a final, parole-revocation hearing; was found guilty of a parole violation; and was sentenced to a period of incarceration for ninety-three days.
[20] In February 2000, the plaintiff was again incarcerated at the Correctional Facility on a parole violation. On February 21, 2000, the plaintiff signed a contract and agreed to participate in the HIIP instead of being sentenced as a parole violator. The contract provided that the plaintiff would be released from custody upon his successful completion of the program. On March 23, 2000, Singer, the director of the HIIP at that time, gave the plaintiff a "document" stating that he was no longer a participant in the HIIP. The "document" stated that Singer discharged him from the program based upon the request of one Dorothy Picente a counselor in the HIIP. The "document" did not set forth the specific reasons for the discharge and did not contain any notice of the right to request a review of the decision. The plaintiff alleges that this removal procedure violated his right to due process under the Constitution.
[21] Next, the plaintiff alleges that he was ignored when he tried to resolve the issue of his discharge in the "informal grievance process (verbal)". Thereafter, the plaintiff allegedly requested a formal grievance form but an unspecified individual denied that request. Also, the plaintiff allegedly sent a letter to the defendants but received no response. Then, the plaintiff commenced an Article 78 proceeding on the ground that the HIIP violated his right to due process and that he should be given the agreed-upon cancellation of delinquency for the parole violation. That proceeding purportedly terminated because of unspecified procedural difficulties. Finally, the plaintiff alleges that he was held over for a final parole-revocation hearing, was found guilty of a parole violation and was sentenced to a period of incarceration for about ninety-six days.
[22] The Complaint consists of three claims. The first claim alleges a violation of Section 1983 due to the plaintiff's removal from the HIIP in November 1997 without proper due process. The second claim alleges a violation of Section 1983 due to the plaintiff's removal from the HIIP in March 2000 without proper due process. The third claim alleges a violation of Section 1983, N.Y. Mental Hyg. § 22.03 and N.Y. Comp. Codes R. & Regs. tit. 14, § 1020.9 in that the HIIP adopted and maintained a policy of involuntarily removing participants from the program without due process by relying on language inserted in its application for entry and conditions of participation which purports to either waive the right to due process or consent to arbitrary and capricious removal from the program. The defendants move to dismiss the Complaint pursuant to Rule 12(c) on two grounds: (1) the plaintiff had no protected due process right to remain in the HIIP; and (2) Section 1983 cannot be based upon the alleged violation of a state law or regulation.
[23] II. DISCUSSION
[24] A. The Standard
[25] The standard for a motion to dismiss under Rule 12(c) is the same as a motion under Rule 12(b)(6). Irish Lesbian and Gay Org. v. Giuliani, 143 F.3d 638, 644 (2d Cir. 1998). The dismissal of a complaint for failure to state a claim pursuant to Rule 12(b)(6) is proper only where "`it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief.'" ICOM Holding, Inc. v. MCI Worldcom, Inc., 238 F.3d 219, 221 (2d Cir. 2001) (quoting Harris v. City of New York, 186 F.3d 243, 247 (2d Cir. 1999)). "At the Rule 12(b)(6) stage, `[t]he issue is not whether a plaintiff is likely to prevail ultimately, but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleading that a recovery is very remote and unlikely but that is not the test.'" Sims v. Artuz, 230 F.3d 14, 20 (2d Cir. 2000) (quoting Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998)). In a Rule 12(b)(6) motion, a court's role 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.'" Sims, 230 F.3d at 20 (quoting Ryder Energy Distribution Corp. v. Merrill Lynch Commodities Inc., 748 F.2d 774, 779 (2d Cir. 1984) (internal quotation marks omitted)).
[26] In deciding a 12(b)(6) motion, a court must accept as true all material facts alleged in the complaint and draw all reasonable inferences in the nonmoving party's favor. ICOM Holding, 238 F.3d at 221. "To survive a motion to dismiss, [the plaintiff's] claims must be `supported by specific and detailed factual allegations,' not stated `in wholly conclusory terms.'" Friedl v. City of New York, 210 F.3d 79, 85-86 (2d Cir. 2000) (quoting Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983)). Thus, "[d]ismissal is `appropriate only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Friedl, 210 F.3d at 83 (quoting Harris, 186 F.3d at 250). "`This rule applies with particular force where the plaintiff alleges civil rights violations . . . .'" Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir. 2000) (quoting Chance, 143 F.3d at 701).
[27] In a motion to dismiss under Rule 12(b)(6), a 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). The Court decides the Rule 12(b)(6) motion based upon the Complaint, the documents appended and incorporated by reference and the matters of which judicial notice may be taken.