16-1800-pr
Linares v. Annucci
                               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.

      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 13th day of October, two thousand seventeen.
PRESENT: PETER W. HALL,
                 GERARD E. LYNCH
                 CHRISTOPHER F. DRONEY,
                                 Circuit Judges.
----------------------------------------------------------------------
JORGE LINARES,
                                 Plaintiff-Appellant,

ROBERT WATT, TIMOTHY BEDELL,
                      Plaintiffs,

                             v.                                                             No. 16-1800-pr

ANTHONY ANNUCCI, ACTING COMMISSIONER, TINA
MARIE STANFORD, CHAIRPERSON BOARD OF PAROLE,
WALTER WILLIAM SMITH, JR., JAMES FERGUSON,
CHRISTINA HERNANDEZ, G. KEVIN LUDLOW, LISA BETH
ELOVICH, SALLY THOMPSON, JOSEPH CRANGLE, EDWARD
SHARKEY, MARC COPPOLA, ELLEN ALEXANDER, GAIL
HALLERDIN, JULIE SMITH, OTIS CRUSE,
                                 Defendants.*
----------------------------------------------------------------------

*
    The Clerk of Court is directed to amend the official caption to conform to the above.


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 FOR PLAINTIFF-APPELLANT:                        MEGAN MCGLYNN, Yale Law School
                                                 Appellate Litigation Project, New Haven,
                                                 CT (Robin Burrell, Yale Law School
                                                 Appellate Litigation Project, New Haven,
                                                 CT; Issa Kohler-Hausmann, Yale Law
                                                 School, New Haven, CT; Tadhg Dooley,
                                                 Wiggin and Dana LLP, New Haven, CT;
                                                 Benjamin M. Daniels, Wiggin and Dana
                                                 LLP, New Haven, CT, on the brief).

 FOR AMICUS CURIAE THE NEW                       KATE H. NEPVEU, Assistant Solicitor
 YORK STATE OFFICE OF THE                        General (Barbara D. Underwood,
 ATTORNEY GENERAL:                               Solicitor General, Andrea Oser, Deputy
                                                 Solicitor General, on the brief), for Eric
                                                 T. Schneiderman, Attorney General of
                                                 the State of New York, Albany, NY.

      Appeal from a May 3, 2016 judgment of the United States District Court for the
Southern District of New York (Preska, J.).

    UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is VACATED AND
REMANDED.

      Plaintiff-Appellant Jorge Linares appeals from a judgment of the district court
dismissing his complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).

       Linares, a New York state prisoner, filed an in forma pauperis pro se class action
complaint on behalf of all New York state prisoners who had been denied or would soon
become eligible for parole. He claimed that New York’s parole statutes violated, among
other things, the Due Process Clause of the Fourteenth Amendment. Specifically, Linares
alleged that New York’s parole scheme vested the Board of Parole with “standardless and
unfettered discretion” and made it impossible to “rationally, fairly, consistently, and
non-arbitrarily” “predict whether a person will remain law abiding if released on parole” in
individual cases. App. 13, 16. Linares did not allege that he had been denied parole,
asserting instead that he and the other plaintiffs had been either denied parole or would
“soon become eligible for parole consideration.” App. 11.

      Before the Defendants—the Acting Commissioner of the New York State
Department of Corrections and Community Supervision and individuals on the Board of

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Parole—were served, the district court sua sponte determined that Linares’s complaint
failed to state a claim upon which relief could be granted and therefore had to be
dismissed.1 See 28 U.S.C. § 1915(e)(2)(B)(ii). With respect to Linares’s due process
claim, the district court relied on decisions from this Court concluding that New York
prisoners do not have a parole interest that is protected by the Due Process Clause of the
Fourteenth Amendment. Although the district court also recognized that Linares and
other New York prisoners had a limited due process right “not to be denied parole in an
arbitrary or capricious manner,” the district court concluded that Linares was not asserting
any such claim. App. 35. He was instead challenging “the statutory and regulatory
guidelines on behalf of all prisoners in [New York state custody].” App. 35.

       Linares now appeals the dismissal of his complaint and advances two arguments,
both first raised on appeal. First, he asserts that recent amendments to New York state’s
parole statutes created a due process right to parole for New York state prisoners. Second,
he contends that the district court erred by dismissing his complaint without giving him
leave to amend it “to raise individualized claims.” Appellant’s Br. 52. We vacate and
remand.

        “We review de novo a district court’s dismissal of a complaint pursuant to 28 U.S.C.
§ 1915(e)(2)(B).” Milan v. Wertheimer, 808 F.3d 961, 963 (2d Cir. 2015) (per curiam).
A “pro se complaint should not be dismissed without the Court granting leave to amend at
least once when a liberal reading of the complaint gives any indication that a valid claim
might be stated.” Dolan v. Connolly, 794 F.3d 290, 295 (2d Cir. 2015) (alterations and
internal quotation marks omitted). “Further, when the plaintiff proceeds pro se, as in this
case, a court is obliged to construe his pleadings liberally, particularly when they allege
civil rights violations.” McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004). This
Court has frequently reiterated that “[s]ua sponte dismissal of pro se prisoner petitions
which contain non-frivolous claims without requiring service upon respondents or granting
leave to amend is disfavored by this Court.” Moorish Sci. Temple of Am., Inc. v. Smith,
693 F.2d 987, 990 (2d Cir. 1982); see also Benitez v. Wolff, 907 F.2d 1293, 1295 (2d Cir.
1990) (per curiam) (“Sua sponte dismissal of a pro se complaint prior to service of process
is a draconian device, which is warranted only when the complaint lacks an arguable basis
either in law or in fact. Where a colorable claim is made out, dismissal is improper prior
to service of process and the defendants’ answer.” (citations and internal quotation marks
omitted)). To the extent that Linares challenges the district court’s failure to give him
leave to amend his complaint, however, we review only for an “abuse of discretion,

1
  Even though the Defendants were not served, the New York State Office of the Attorney General has
appeared in this appeal as amicus curiae.



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keeping in mind that leave to amend should be freely granted when justice so requires.”2
Balintulo v. Ford Motor Co., 796 F.3d 160, 164 (2d Cir. 2015) (internal quotation marks
omitted).

                1. The Recent Amendments to New York’s Parole Statutes

       Linares’s principal argument on appeal is that recent amendments to New York’s
parole statutes, compare, e.g., N.Y. Exec. Law. § 259-c (McKinney 2012), with, e.g., N.Y.
Exec. Law. § 259-c (McKinney 2010), affected this Court’s prior conclusion that “because
the New York parole scheme is not one that creates a legitimate expectancy of release,
prisoners have no liberty interest in parole, and the protections of the Due Process Clause
are inapplicable.” Graziano v. Pataki, 689 F.3d 110, 114 (2d Cir. 2012) (alteration and
internal quotation marks omitted); see also Greenholtz v. Inmates of Neb. Penal & Corr.
Complex, 442 U.S. 1, 7–16 (1979); Barna v. Travis, 239 F.3d 169, 170–71 (2d Cir. 2001)
(per curiam); Boothe v. Hammock, 605 F.2d 661, 664–65 (2d Cir. 1979).

       This argument was never before the district court. We generally refrain from
ruling “on issues not raised below,” Adelphia Bus. Sols., Inc. v. Abnos, 482 F.3d 602, 607
(2d Cir. 2007), and adhere to that general rule here.

       We also recognize, however, that Linares did not have a full opportunity to present
his argument on appeal to the district court. Although the district court was not presented
with the argument Linares now makes on appeal, and it is understandable that the court
could not anticipate that Linares intended to invoke the recent amendments to the parole
statutes, it is possible that Linares’s complaint might state a claim on which relief could be
granted.

         We therefore conclude that the most appropriate course of action is to vacate the
judgment of the district court and remand for that court to order Linares to serve the
defendants and thereafter for that court to conduct such proceedings as may be appropriate
for it to consider the recent amendments to the parole statute. Of course, at this juncture,
we express no view on whether those amendments alter our prior decisions on the due
process implications of the New York parole scheme.




2
  Although our review over the denial of leave to amend is de novo when amendment is denied on the
ground that it would be futile, Smith v. Hogan, 794 F.3d 249, 253 (2d Cir. 2015), the district court did not
conclude that amendment would be futile.


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              2. Leave to Amend as to Linares’s Individual Claim

       Linares also argues that the district court erred by failing to give him leave to amend
his complaint to raise an individual claim of deprivation of his due process right to parole.
He specifically contends that his complaint could state a valid claim because, as the district
court noted, he had an individual right not to be denied parole arbitrarily. See Graziano,
689 F.3d at 115–16.

        Even when Linares’s complaint is liberally construed, however, it did not raise an
individual claim that he had been denied parole in an arbitrary manner. Linares did not
allege that he had been denied parole and provided no allegations regarding his experience
before the Board of Parole. The lack of such allegations, when combined with the
contentions Linares did raise on behalf of the class he was seeking to represent, leaves no
doubt that the claim Linares sought to raise was that New York’s parole scheme violated
the Fourteenth Amendment’s Due Process Clause because the scheme could not be applied
to anyone “fairly, consistently, and non-arbitrarily.” App. 16. In other words, Linares
challenged the standards by which parole was granted or denied, not the denial of parole in
any individual case, including his own. That challenge is distinct from the claim Linares
now seeks to amend his complaint to include. Thus, Linares’s reliance on the
non-precedential order in Robles v. Evans, 480 F. App’x 86 (2d Cir. 2012) (summary
order), is misplaced because, as Linares himself admits, the plaintiff in that case challenged
the “denial of his release on parole.” Id. at 87 (emphasis added).

        Under such circumstances, the district court did not abuse its discretion when it
declined to give Linares the opportunity to amend his complaint. Because we have
already determined that it is appropriate to remand this case to the district court, however,
we leave it to that court to determine on remand whether Linares may amend his complaint
to raise an individual claim if Linares seeks leave to do so.

        Accordingly, we VACATE the judgment of the district court and REMAND for
consideration, following prompt service on the Defendants, of whether Linares’s
complaint may be amended and whether it states a claim on which relief can be granted in
light of the recent amendments to New York’s parole statutes.

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




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