GARCIA v. MORRIS NY VS DOCCS (2019)

SUMMARY ORDER

Appellant Frank Garcia, pro se, sued Cheryl Morris, former director of New York State Department of Corrections and Community Supervision (“DOCCS”) Ministerial, Family, and Volunteer Services (“MFVS”), and Alicia Smith-Roberts, the current MFVS director, under 42 U.S.C. § 1983. He alleged that the defendants denied him procedural due process when they revoked permission for him to participate in DOCCS’s Family Reunion Program (“FRP”). The district court sua sponte dismissed the complaint, reasoning in relevant part that Garcia had no protected liberty interest in participating in the FRP. On appeal, Garcia challenges the dismissal and moves for “de novo review” of the district court’s judgment. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

We review the sua sponte dismissal of a complaint de novo. McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004). Pro se submissions are reviewed with “special solicitude,” and “must be construed liberally and interpreted to raise the strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474–75 (2d Cir. 2006) (internal quotation marks and emphasis omitted). As an initial matter, we deny Garcia’s motion for de novo review as moot because we already review sua sponte dismissals de novo.

To state a claim under § 1983 for denial of due process arising out of a disciplinary hearing, a plaintiff must show both that he: (1) possessed a liberty interest; and (2) was deprived of that interest without sufficient process. See Ortiz v. McBride, 380 F.3d 649, 654 (2d Cir. 2004). When the liberty interest is created by state law, we examine whether the “relevant state law or regulation ․ require[s] specific mandatory substantive predicates to govern administrative decisions and must mandat[e] the outcome to be reached upon a finding that the relevant criteria have been met[.]” Hernandez v. Coughlin, 18 F.3d 133, 137 (2d Cir. 1994) (internal quotation marks omitted; third alteration in original). If a statute does not mandate any particular outcome, e.g., when the decision is discretionary, then there is no protected liberty interest granted by the statute. Id.

The regulations governing the FRP specify no particular outcomes for applicants. The decisions are entirely discretionary and prior participation is not a guarantee of re-approval. See 7 N.Y.C.R.R. §§ 220.2 (listing eligibility factors that are determined at the time an application is processed); 220.4 (requiring complete “full-cycle” review when a prisoner is a new applicant, transfers facilities, receives a prior denial, or seeks to add new family members). As a result, we have repeatedly held that a prisoner has no protected liberty interest in participating in the FRP, even when he had already been participating in the program. See Champion v. Artuz, 76 F.3d 483, 484–86 (2d Cir. 1996); Hernandez, 18 F.3d at 135, 137–38. Therefore, Garcia cannot state a claim for denial of procedural due process based on the revocation of his participation in the FRP and denial of his later applications to reinstate his participation.²

We have reviewed the remainder of Garcia’s arguments and find them to be without merit. For the foregoing reasons, the judgment of the district court is AFFIRMED and Garcia’s motion for de novo review is DENIED as moot.

FOOTNOTES

2.   Because we affirm solely on the basis of Garcia’s failure to state a claim for denial of due process, we express no view on the district court’s alternate grounds for dismissal of certain claims on the basis of sovereign immunity.