17-3675 Amaker v. Schiraldi UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 5th day of May, two thousand twenty.

PRESENT: BARRINGTON D. PARKER, RICHARD J. SULLIVAN, Circuit Judges, KATHERINE POLK FAILLA, District Judge. ∗ ------------------------------------------------------------------ ANTHONY D. AMAKER,

Plaintiff-Appellant,

v. No. 17-3675-pr

VINCENT N. SCHIRALDI, NEW YORK CITY DEPARTMENT OF PROBATION, ANNA BERMUDEZ, NEW YORK CITY DEPARTMENT OF PROBATION, GREG KUZIW, NEW YORK

∗ Judge Katherine Polk Failla, of the United States District Court for the Southern District of New York, sitting by designation. CITY DEPARTMENT OF PROBATION, PATRICIA BRENNAN, NEW YORK CITY DEPARTMENT OF PROBATION, TERENCE TRACY, KAREN ARMSTRONG, NEW YORK CITY DEPARTMENT OF PROBATION, THERESA LIZZIO, NEW YORK CITY DEPARTMENT OF PROBATION, RALPH DIFIORE, NEW YORK CITY DEPARTMENT OF PROBATION, SCOTT CHRISTIE, DANIELLE GLEBOCKI, ENNIS COLLADO, ALVIN REED,

Defendants-Appellees. ------------------------------------------------------------------ FOR APPELLANT: JONATHAN K. YOUNGWOOD, Simpson Thacher & Bartlett LLP, New York, NY.

FOR APPELLEES: AMIT R. VORA, Assistant Solicitor General (Barbara D. Underwood, Solicitor General, Steven C. Wu, Deputy Solicitor General, on the brief), for Letitia James, Attorney General of the State of New York, New York, NY, for Defendants-Appellees Terence Tracy, Scott Christie, Danielle Glebocki, Ennis Collado, Alvin Reed.

SUSAN PAULSON, Assistant Corporation Counsel (Jane L. Gordon, on the brief), for Zachary W. Carter, Corporation Counsel of the City of New York, New York, NY, for Defendants-Appellees Vincent N. Schiraldi, Anna Bermudez, Greg Kuziw, Patricia Brennan, Karen Armstrong, Theresa Lizzio, Ralph DiFiore.

Appeal from a judgment of the United States District Court for the Eastern

District of New York (Amon, J.).

2 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is

AFFIRMED.

Anthony Amaker appeals from a judgment of the district court (Amon, J.)

dismissing his pro se amended complaint for failure to state a claim. In granting

Amaker in forma pauperis status, we dismissed all of his appellate claims except

one – “his due process claim to have his correctional file free from any incorrect

prejudicial information that was relied on to deny parole.” Doc. No. 38. Now

represented by counsel, Amaker contends that Appellees’ “dogged and arbitrary

refusal” “to correct two primary falsehoods in his” presentence investigation

report (“PSR”) and Correctional Offender Management Profiling for Alternative

Sanctions Risk and Need Assessment Report (“COMPAS”) “constitutes a

deprivation of [his] procedural due process right to a correctional file before the

parole board that is free of prejudicial, inaccurate information.” Amaker’s Br. at

18–19. Because we find that Amaker has failed to plausibly allege that the

purported inaccuracies in his correctional file are in fact errors, we affirm the

district court’s dismissal. We assume the parties’ familiarity with the underlying

facts, procedural history, and issues on appeal, to which we refer only as necessary

3 to explain our decision.

I.

Appellees urge us to dismiss Amaker’s appeal for several threshold reasons,

pressing that (1) his appeal was untimely; (2) his release on parole eliminates his

standing to seek prospective injunctive relief; (3) collateral estoppel bars his claim

that his institutional file contains prejudicial errors; and (4) Heck v. Humphrey,

(1994), bars his claim for damages. Appellees, however, fail to

persuasively demonstrate that any of these theories require us to reject Amaker’s

claim without considering its merits.

First, Amaker’s October 24, 2017 notice of appeal was timely because it

satisfied the procedures set forth in Federal Rule of Appellate Procedure 4(c) for

confined inmates filing appeals. Under Rule 4(c), a confined inmate’s appeal is

timely so long as it is deposited in the institution’s mail system before the deadline

for filing the appeal and it includes an accompanying declaration attesting to the

date of deposit. Amaker attached to his October 24 notice of appeal a sworn

declaration stating that he served the notice of appeal on that date, and therefore,

his appeal was timely.

Second, with respect to Appellees’ standing argument, we find Amaker has

4 sufficiently identified concrete ways in which his inaccurate institutional file will

continue to impact him notwithstanding his release on parole, even in the absence

of his violating the terms of his parole or committing a new crime. Thus, at this

stage of the litigation, Amaker’s allegations that his inaccurate institutional file

will impact the conditions of his parole are sufficient to establish constitutional

standing to seek prospective injunctive relief. See, e.g., Marcavage v. City of New

York,

(2d Cir. 2012) (“To obtain prospective relief . . . a plaintiff must

show, inter alia, a sufficient likelihood that he [or she] will again be wronged in a

similar way.” (internal quotation marks omitted)).

Third, Amaker’s claim arising from an alleged deprivation of his procedural

due process right in having an accurate institutional file is not collaterally

estopped by his state court challenge to his 2015 parole denial. There are two

elements to collateral estoppel in New York – “First, the identical issue necessarily

must have been decided in the prior action and be decisive of the present action,

and second, the party to be precluded from relitigating the issue must have had a

full and fair opportunity to contest the prior determination.” Jenkins v. City of New

York,

(2d Cir. 2007) (internal quotation marks omitted). Here,

Appellees have failed to establish the first prong of this test. In the previous state

5 court case, Amaker challenged the Parole Board’s ultimate determination, which

does not implicate the federal procedural due process claim at issue in this case.

Under New York law, a court will set aside a denial of parole only if the Parole

Board’s determination “evinced irrationality bordering on impropriety.” Goldberg

v. N.Y. State Bd. of Parole,

, 511 (2d Dep’t 2013). The state court

had to decide only one issue to resolve that case, namely, whether the Parole Board

weighed each statutory factor in

-i(2)(c). Therefore, the state

court’s analysis of the accuracy of Amaker’s institutional file was unnecessary to

the result, and consequently does not collaterally estop Amaker’s federal

constitutional claim at issue in this case.

Finally, we need not resolve the question left open in Poventud v. City of New

York,

(2d Cir. 2014) (en banc) – “whether the Heck bar applies after an

inmate has been released from prison” – to decide this case in light of our

conclusion below that Amaker has failed to establish that his correctional file

contains the errors on which he premises his damages claims.

II.

Turning to the merits of Amaker’s procedural due process claim, we agree

with the district court that Amaker has failed to state a plausible claim for relief.

6 Even assuming that Amaker could bring a federal due process claim based on

alleged inaccuracies in his correctional file – a question that we explicitly do not

resolve – Amaker has not plausibly alleged any errors.

“We review de novo a district court’s decision to dismiss a complaint

pursuant to Rule 12(b)(6), accepting all factual allegations as true and drawing all

reasonable inferences in the plaintiff’s favor.” Crawford v. Cuomo,

(2d Cir. 2015). “To survive a 12(b)(6) motion, the complaint must contain factual

allegations that plausibly give rise to an entitlement to relief.”

We may “affirm

on any ground appearing in the record below.” MFS Sec. Corp. v. N.Y. Stock Exch.,

Inc.,

(2d Cir. 2002).

On appeal, Amaker identifies two purported errors in his correctional file:

“(1) the erroneous classification of [his] 1979 Juvenile Offense as an adult

conviction and (2) the inclusion of five Tier III disciplinary sanctions in his

COMPAS report despite a court order mandating their expunction.” Amaker’s Br.

at 19. For his juvenile offense, he contends that the amended 2012 PSR erroneously

classified his juvenile offender first-degree manslaughter conviction by listing the

conviction under the “Adult Court” subsection of his “Previous Court Record,”

thereby suggesting that it was an adult conviction. He also maintains that the

7 COMPAS report compounded this inaccuracy by answering the question “How

many prior murder/voluntary manslaughter offense arrests as an adult?” with “1.”

For the Tier III disciplinary infractions, he claims that the 2015 COMPAS report

erroneously lists five Tier III disciplinary infractions that a district court had

ordered expunged. Neither alleged error reflects any mistake.

First, for Amaker’s juvenile offense, under New York law, “juvenile

offender” refers to “juveniles between the ages of 13 and 15 who are charged with

certain enumerated, serious crimes of violence” and who are “prosecuted within

the adult criminal justice system.” Vega v. Bell,

(1979); see also

(18) (defining “juvenile offender”). Under New York’s

current statutory framework, “juvenile offenders will, as a general rule, be

prosecuted as adults” in the adult criminal justice system rather than in juvenile

court, and are considered “criminally responsible for their actions.” In re Raymond

G.,

(1999).

Therefore, because Amaker was deemed a “juvenile offender” (as opposed

to a juvenile delinquent) for his first-degree manslaughter conviction, and thus

prosecuted in the adult criminal justice system rather than in juvenile court, the

PSR accurately listed his conviction under the “Adult Court” subsection of his

8 “Previous Court Record.” For the same reasons, the COMPAS report accurately

described him as having “1” “prior murder/voluntary manslaughter offense

arrest[] as an adult,” App’x at 204, since he was arrested for a charge that resulted

in his prosecution in the adult criminal justice system rather than in juvenile court

as a juvenile delinquent.1 Indeed, the COMPAS report further notes the distinction

by providing that Amaker had “0” “prior petitions or charges for a felony type

violent action as a juvenile delinquent” in Question 3,

but that Amaker was

“15” when “arrested for a criminal offense as an adult or juvenile delinquent for

the very first time” in Question 15, id. at 205.

Second, Amaker is incorrect that the 2015 COMPAS report erroneously

includes the five expunged Tier III disciplinary infractions. The report lists “0”

Tier III infractions during the last two years of incarceration and does not state any

information about Tier III infractions before then. To the extent that Amaker

contends that the COMPAS report assigned him a high prison-misconduct score

because it erroneously factored into its algorithm the five expunged disciplinary

1 Our interpretation of this question is consistent with the New York State Department of Corrections and Community Supervision’s interpretation. The Department explained in denying Amaker’s administrative grievance regarding the COMPAS report’s answer to this question that the question was intended to identify arrests for crimes where the inmate was later “tried in an adult court and given an [a]dult conviction.” See App’x at 114. 9 infractions, that allegation is entirely speculative. Amaker offers nothing beyond

mere conclusory claims that his numerous and severe past infractions – sixteen

Tier III infractions and approximately thirty Tier II infractions, including for

violent conduct, assaults on staff, and weapons possession – excluding the five

expunged infractions, would not be enough to generate a high prison-misconduct

score.

Accordingly, even assuming the existence of a federal due process right to

be free from any incorrect prejudicial information in a correctional file, Amaker’s

due process claim fails because he has not plausibly alleged that his parole file

contained any incorrect prejudicial information. We therefore agree with the

district court that Amaker has failed to state a plausible claim for relief.

III.

We have considered Amaker’s remaining contentions and conclude that

they are without merit. For the foregoing reasons, the judgment of the district

court is AFFIRMED.

FOR THE COURT: Catherine O=Hagan Wolfe, Clerk of Court

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