         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




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