10-2343-pr
Robles v. Evans
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 “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 11th day of May, two thousand twelve.
5
6 PRESENT: RICHARD C. WESLEY,
7 RAYMOND J. LOHIER, JR.,
8 Circuit Judges,
9 J. GARVAN MURTHA,
10 District Judge.*
11
12
13
14 NICHOLAS ROBLES,
15
16 Plaintiff-Appellant,
17
18 -v.- 10-2343-pr
19
20 ANDREA EVANS, Chairperson Division of Parole,
21 C. WILKINS, Parole Officer Supervisor of
22 Orleans State Prison and those acting in
23 concert, DIVISION OF PAROLE REPRESENTATIVE,
24 NEW YORK STATE DEPARTMENT OF CORRECTIONAL
25 SERVICES,
26
27 Defendants-Appellees.
28
29
*
The Honorable J. Garvan Murtha, of the United States
District Court for the District of Vermont, sitting by
designation.
1 FOR APPELLANT: Scott A. Korenbaum, New York, NY.**
2
3 Appeal from the United States District Court for the
4 Southern District of New York (Preska, C.J.).
5
6 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
7 AND DECREED that the judgment of the district court be
8 VACATED and the case be REMANDED with directions to grant
9 leave to amend the complaint.
10 Plaintiff-Appellant Nicholas Robles appeals from a
11 judgment of the United States District Court for the
12 Southern District of New York (Preska, C.J.), dismissing his
13 pro se complaint brought pursuant to 42 U.S.C. § 1983.
14 Robles alleged that the state defendants breached an
15 agreement and violated his due process rights in connection
16 with their denial of his release on parole in 2000 and their
17 classification of him as a violent sexual offender in 2001.
18 The district court concluded that Robles’s complaint failed
19 to state a claim upon which relief may be granted and thus
20 dismissed the complaint sua sponte. See 28 U.S.C.
21 § 1915(e)(2)(B)(ii). We assume the parties’ familiarity
22 with the underlying facts and procedural history of the
23 case.
**
The New York State Attorney General’s Office has chosen
not to appear as counsel for Defendants-Appellees in this appeal
because the district court dismissed Robles’s complaint before
any defendant was ever served.
2
1 We review a district court’s sua sponte dismissal
2 pursuant to 28 U.S.C. § 1915(e) de novo. Giano v. Goord,
3 250 F.3d 146, 149-50 (2d Cir. 2001). As an initial matter,
4 we have no reason to believe that the district court failed
5 to construe the pro se complaint liberally. See Triestman
6 v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006).
7 Indeed, Robles’s appointed counsel acknowledges that given
8 the complaint’s lack of clarity, “the trial court’s reading
9 of it was certainly understandable.” Appellant’s Br. 7.
10 But “the court should not dismiss without granting leave to
11 amend at least once when a liberal reading of the complaint
12 gives any indication that a valid claim might be stated.”
13 Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991).
14 Having conducted an independent review of the record,
15 we conclude that the district court should have afforded
16 Robles an opportunity to amend his complaint because a
17 liberal reading of the complaint indicates that Robles might
18 state a valid claim that he was denied parole in March 2009
19 in retaliation for his prior lawsuits. “This court has held
20 that retaliation against a prisoner for pursuing a grievance
21 violates the right to petition government for the redress of
22 grievances guaranteed by the First and Fourteenth Amendments
3
1 and is actionable under § 1983.” Graham v. Henderson, 89
2 F.3d 75, 80 (2d Cir. 1996); see also Jones v. Coughlin, 45
3 F.3d 677, 679-80 (2d Cir. 1995).
4 The district court dismissed Robles’s claims to the
5 extent that they challenged the decision to deny his release
6 on parole in March 2009, without discussing the possibility
7 that Robles was seeking a new parole hearing wherein non-
8 retaliatory procedures would be followed, or prospective
9 injunctive relief enjoining Defendants from further
10 retaliation. In our view, there are sufficient allegations
11 in the complaint to construe such a claim: (1) the complaint
12 details Robles’s history of administrative appeals and state
13 and federal petitions for habeas corpus relating to issues
14 of parole and his status as a violent sexual offender; (2)
15 Robles explicitly alleged that the Division of Parole
16 (“DOP”) denied him conditional release, and, within the same
17 paragraph, stated that the DOP is “retaliating against [him]
18 for past litigation”; (3) Robles asked the district court to
19 order Defendants to show cause why a temporary restraining
20 order and preliminary injunction should not be ordered by
21 the court; and (4) Robles requested the court to protect him
22 “from any further form of reprisal by the [DOP].”
4
1 Heck v. Humphrey, 512 U.S. 477 (1994), “specifies that
2 a prisoner cannot use § 1983 to obtain damages where success
3 would necessarily imply the unlawfulness of a (not
4 previously invalidated) conviction or sentence.” Wilkinson
5 v. Dotson, 544 U.S. 74, 81 (2005). But if Robles prevails
6 on a claim seeking a new parole hearing or prospective
7 injunctive relief enjoining Defendants from further
8 retaliation, he will “at most [receive] a new parole hearing
9 at which [New York] parole authorities may, in their
10 discretion, decline to shorten his prison term.” Id. at 82;
11 see Barna v. Travis, 239 F.3d 169, 171 (2d Cir. 2001)
12 (describing the parole board’s broad discretionary powers
13 under New York law). Because such relief “would not
14 necessarily spell immediate or speedier release for the
15 prisoner,” his claim would not be barred by Heck.
16 Wilkinson, 544 U.S. at 81.
17 Finally, we recognize that it is not apparent from the
18 face of the complaint that Robles pled sufficient facts
19 showing a causal connection between his obvious litigious
20 history and the denial of his parole. See Graham, 89 F.3d
21 at 79-80. Nevertheless, Robles should be afforded the
22 opportunity to amend his complaint because we cannot “rule
5
1 out any possibility, however unlikely it might be, that an
2 amended complaint would succeed in stating a claim.” Gomez
3 v. USAA Fed. Sav. Bank, 171 F.3d 794, 796 (2d Cir. 1999).
4 For the foregoing reasons, the judgment of the district
5 court is VACATED and the case is REMANDED with instructions
6 to permit Robles to amend his complaint.
7
8 FOR THE COURT:
9 Catherine O’Hagan Wolfe, Clerk
10
11
6