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KRULL v. NYS DOCCS NYS DOCCS (2020)

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United States Court of Appeals, Second Circuit.

Vladimir KRULL, Plaintiff-Appellant, v. Rebecca OEY, S.O.R.C. NYS DOCCS, Anthony J. Annucci, Commissioner, NYS DOCCS, Banker Defendants-Appellees, Megan Mactavish, Director of Guidance and Counseling, NYS DOCCS, Jeffrey McKoy, Deputy Commissioner for Program Services, NYS DOCCS, Defendants.

19-2138-pr

Decided: May 20, 2020

PRESENT: Amalya L. Kearse, Dennis Jacobs, José A. Cabranes, Circuit Judges. FOR PLAINTIFF-APPELLANT: Vladimir Krull, pro se, Dannemora, NY. FOR DEFENDANTS-APPELLEES: No appearance

SUMMARY ORDER

Plaintiff-Appellant Vladimir Krull (“Krull”), proceeding pro se, appeals from a judgment of the District Court dismissing sua sponte his action under 42 U.S.C. § 1983.1 While incarcerated, Krull sued the New York Department of Corrections and Community Supervision (“DOCCS”) and several DOCCS officials, claiming that the Sex Offender Counseling and Treatment Program (“SOCTP”), as applied to him, violated his Fifth Amendment right against self-incrimination. Specifically, Krull alleged that the SOCTP required him to either admit guilt for his crimes of conviction or face a series of consequences, including expulsion from the program, a loss of good time credits, and an increased risk level under the New York Sex Offender Registration Act (“SORA”). Krull also argued that the SOCTP Guidelines were unconstitutionally vague under the Fourteenth Amendment’s Due Process Clause. The District Court dismissed Krull’s amended complaint under 28 U.S.C. § 1915(e)(2)(B)(ii) and 28 U.S.C. § 1915A(b)(1). The instant appeal followed. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

I. Mootness

Because Krull was released from prison in January 2020, we must now address whether Krull’s appeal has become moot and must be dismissed for lack of jurisdiction. “A case becomes moot when it no longer satisfies the ‘case-or-controversy’ requirement of Article III, Section 2 of the Constitution. In order to satisfy the case-or-controversy requirement, a party must, at all stages of the litigation, have an actual injury which is likely to be redressed by a favorable judicial decision.” United States v. Williams, 475 F.3d 468, 478–79 (2d Cir. 2007) (internal quotation marks omitted); see also Martin-Trigona v. Shiff, 702 F.2d 380, 386 (2d Cir. 1983) (“The hallmark of a moot case or controversy is that the relief sought can no longer be given or is no longer needed.”).

SORA “requires sex offenders, after serving their sentences, to register with law enforcement officials, and provides for various degrees of public notification of the identity and address of these offenders.” Doe v. Pataki, 120 F.3d 1263, 1265 (2d Cir. 1997), as amended on denial of reh’g (Sept. 25, 1997). As a result of his failure to complete the SOCTP, Krull has been assigned a Risk Level Two under SORA, which requires offenders to register annually for life. See N.Y. Corr. L. § 168-h(1), (2).2 Because Krull must continue to register annually for life, his self-incrimination challenge to the SOCTP on the basis of an increased risk level presents a live case or controversy.

By contrast, Krull’s claim for restoration of good time credits is now moot, since we can no longer provide that form of injunctive relief now that Krull has been released from prison. See Martin-Trigona, 702 F.2d at 386; cf. Spencer v. Kemna, 523 U.S. 1, 12–13, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998) (holding that the potential collateral consequences of parole violations are too remote and speculative for a continuing controversy post-release); United States v. Key, 602 F.3d 492, 494–95 (2d Cir. 2010) (holding that a challenge to 18 U.S.C. § 3582(c)(2) proceedings was rendered moot by an appellant’s release from prison). Similarly, Krull’s vagueness challenge to the SOCTP Guidelines is also moot, since the only penalty for violating the Guidelines is removal from the SOCTP during incarceration. Now that Krull has been released, he is no longer eligible to participate in the SOCTP.

II. Self-Incrimination Challenge Based on an Increased Risk Level

We review de novo a district court’s dismissal of a complaint under 28 U.S.C. §§ 1915(e)(2) and 1915A. See Zaleski v. Burns, 606 F.3d 51, 52 (2d Cir. 2010); McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004). To avoid dismissal, a complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). 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).

A sex-offender treatment program that requires disclosure of criminal conduct without guaranteeing immunity does not violate the Fifth Amendment’s Self-Incrimination Clause unless the consequences for non-disclosure compel the prisoner to make self-incriminating statements. See McKune v. Lile, 536 U.S. 24, 36, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002). In McKune, the Supreme Court upheld a sex-offender rehabilitation program that required a prisoner to admit responsibility for his crime of conviction (exposing him to a perjury charge because he had testified to his innocence), as well as to disclose past offenses for which he had not been convicted. See id. at 30–31, 122 S.Ct. 2017. The Kansas program at issue did not provide immunity for the information disclosed, although the State argued that the program participants’ disclosures had never actually been used in a prosecution. See id. The Supreme Court concluded that the program did not violate the Fifth Amendment because the consequences for non-participation (transfer from a medium- to a maximum-security facility, as well as loss of visitation and commissary privileges) were not so severe that the prisoner was compelled to incriminate himself. See id. at 37–48, 122 S.Ct. 2017 (Plurality Op.); see also id. at 50–54, 122 S.Ct. 2017 (O’Connor, J., concurring in the judgment).

We have not yet applied McKune to a self-incrimination claim involving an increased SORA risk level (i.e., Level Two) and the resulting heightened registration and monitoring requirements. The District Court also has yet to address the merits of this issue, as it dismissed the claim on ripeness grounds because Krull had not then been assigned a SORA risk-level score. Now that Krull has been assigned a Level Two score, the District Court must address the merits question in the first instance on remand.

CONCLUSION

For the foregoing reasons, we VACATE the portion of the judgment dismissing Krull’s self-incrimination challenge to his increased risk level under SORA, REMAND the cause to the District Court for further proceedings consistent with this order, and DISMISS Krull’s appeal of the dismissal of his remaining claims as moot.

FOOTNOTES

1.   In 2017, Krull was convicted of second-degree rape and second-degree criminal sexual act and sentenced to three years in prison. See Inmate Lookup, Dep’t of Corr. & Cmty. Supervision, http://nysdoccslookup.doccs.ny.gov/ (last visited Apr. 26, 2020). Krull was released from Clinton Correctional Facility in January 2020. See id.; see also Fed. R. Evid. 201(b)(2) (courts may take judicial notice of facts which “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned”). Krull has not updated his address.

2.   We note that Krull had not been assigned a SORA risk level at the time when the District Court dismissed the complaint, or even by the time he filed his appellate brief. A recent search of New York’s SORA database, however, shows that Krull has been listed now as a Level Two sex offender. See New York State Div. of Criminal Justice Servs., Offender Details, available at https://www.criminaljustice.ny.gov/nsor/ (last visited April 26, 2020).

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