13-3592-cv
Victory v. Pataki et al.
                                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
1st day of February, two thousand sixteen.

Present:    ROSEMARY S. POOLER,
            BARRINGTON D. PARKER,
                        Circuit Judges.*
_____________________________________________________

ALBERT LOPEZ VICTORY,

                                  Plaintiff-Appellant,

                           v.                                       13-3592-cv

GEORGE PATAKI, Former Governor of the State
of New York in his official capacity, BRION D. TRAVIS,
Ex-Chair, Board of Parole, New York State Division of
Parole, THOMAS P. GRANT, Special Assistant to the Chair
of the Board of Parole, MIKE HAYDEN, Acting Director of
the Division of Parole, RONALD P. WHITE, Director of
Upstate Field Operations for the Division of Parole, TERRANCE
X. TRACY, Chief Counsel to the Chair of the Board of Parole,
KENNETH E. GRABER, Commissioner of the Board of Parole,
GEORGE CHARD, Senior Parole Officer, Utica Parole Office,
DOUGLAS C. SMITH, Ex-Supervising Parole Officer, Utica
Parole Office, PERRITANO, “JOHN,” First Name Unknown,
Parole Officer, Utica Parole Office, KEVIN MCCARTHY,

         *
         The Honorable Richard C. Wesley of the United States Court of Appeals for the
Second Circuit was originally assigned as a member of the panel, but recused himself prior to
oral argument and did not participate in the appeal. The appeal is being determined by the
remaining members of the panel, who are in agreement. See 2d Cir. Local Rules, Internal
Operating Procedure E(b); Murray v. Nat’l Broad. Co., 35 F.3d 45, 46 (2d Cir. 1994).
Head of the Special Services Bureau for the Division of
Parole, Central New York Area, THOMAS MURFITT,
Syracuse Police Officer, GILHOOLEY, “JOHN,” first name
unknown, Syracuse Police Officer, TIMOTHY FOODY,
Ex-Police Chief, Syracuse Police Department,
John Does, 1, 2, 3, etc., Jane Does 1, 2, 3, etc.,
(whose identities are unknown but who are believed to be
either employees of the Division of Parole, the Governor’s
Office, and/or the Syracuse Police Department); all such
individual defendants being sued both in their individual
and official capacity, THE CITY OF SYRACUSE, New
York, DENNIS DUVAL, Chief of Police of the Syracuse
Police Department, GEORGE ALEXANDER, Chair,
Board of Parole, in his official capacity, GOVERNOR
DAVID PATERSON, RORY D. GILHOOLEY, Syracuse
Police Officer, JOHN FALGE, Ex-Police Chief, Syracuse
Police Department, GARY MIGUEL, Police Chief, Syracuse
Police Department, ELIOT SPITZER, Governor of the State
of New York in his official capacity,

                        Defendants-Appellees.
__________________________________________

Appearing for Appellant:     Myron Beldock, Beldock Levine & Hoffman LLP, New York,
                             N.Y. for Albert Lopez Victory.

Appearing for Appellees:     Andrew B. Ayers, Assistant Solicitor General, Office of the
                             Attorney General (Eric T. Schneiderman, Attorney General of the
                             State of New York; Barbarda D. Underwood, Solicitor General;
                             Nancy A. Speigel, Senior Assistant Solicitor General, on the brief),
                             Albany, N.Y. for New York State Appellees.

                             Shannon T. O’Connor, Assistant Corporation Counsel for the City
                             of Syracuse, (Robert P. Stamey, Corporation Counsel for the City
                             of Syracuse, on the brief), Syracuse, N.Y. for City of Syracuse
                             Appellees.

       Appeal from the United States District Court for the Western District of New York
(Skretny, C.J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court be and it hereby is AFFIRMED IN
PART, VACATED IN PART, and REMANDED.


       Plaintiff-Appellant Albert Lopez Victory, a former inmate of the New York Department
of Corrections and Community Supervision (“DOCCS”), appeals from the August 27, 2013

                                               2
order of the United States District Court for the Western District of New York (Skretny, C.J.)
granting summary judgment for defendants and dismissing his complaint in its entirety. See
Victory v. Pataki, No. 02-cv-0031, 2013 WL 4539296 (W.D.N.Y. Aug. 27, 2013). On appeal,
Victory challenges the dismissal of those claims brought pursuant to 42 U.S.C. § 1983 against
various New York State officials and employees and the City of Syracuse and several of its
police officers for violating and conspiring to violate Victory’s equal protection and Fourth
Amendment rights in connection with the rescission and revocation of his parole.2 We assume
the parties’ familiarity with the underlying facts, procedural history, and specification of issues
on appeal.

        We review the district court’s grant of summary judgment de novo. Summa v. Hofstra
Univ., 708 F.3d 115, 123 (2d Cir. 2013). In assessing the record to determine whether there is a
genuine dispute as to any material fact, we resolve all ambiguities and draw all permissible
inferences in favor of the non-moving party. Sec. Ins. Co. of Hartford v. Old Dominion Freight
Line Inc., 391 F.3d 77, 83 (2d Cir. 2004).

         We conclude that the district court properly granted summary judgment to defendants on
Victory’s equal protection claim. To prevail on such a claim, Victory was required to show that:
(1) he was treated differently from other similarly situated individuals, and (2) that such
differential treatment was based on impermissible considerations. See Cine SK8, Inc. v. Town of
Henrietta, 507 F.3d 778, 790 (2d Cir. 2007). Although Victory asserts that the conditions of his
parole supervision were more restrictive than those of other violent offenders, he concedes that
this difference stemmed from his status as a “cop killer,”—i.e. one convicted of the murder (in
his case the felony murder) of a police officer. That parole restrictions may vary according to the
nature of an offender’s crime requires no citation. See, e.g., United States v. Brown, 402 F.3d
133, 136 (2d Cir. 2005) (explaining that special conditions of federal supervised release must be
reasonably related to, inter alia, “the nature and circumstances of the offense”). As this Court has
previously held, the application of harsher parole policies to violent offenders does not violate
the Equal Protection Clause of the Fourteenth Amendment because such differential treatment is
rationally related to the legitimate state interest of protecting the public. See Graziano v. Pataki,
689 F.3d 110, 117 (2d Cir. 2012).

         Victory’s challenge to his parole supervision also fails under a “class-of-one” theory
because he has presented no evidence that he was subjected to a more stringent level of
supervision than other similarly situated parolees. “Class-of-one plaintiffs must show an
extremely high degree of similarity between themselves and the persons to whom they compare
themselves.” Ruston v. Town Bd. for Town of Skaneateles, 610 F.3d 55, 59 (2d Cir. 2010)
(alteration and internal quotation marks omitted). But, even on appeal, Victory does not contest
that he cannot identify any similarly situated parolee.



       2
         We initially disposed of this appeal in a summary order issued on April 17, 2015. See
Victory v. Pataki, 609 F. App’x 680 (2d Cir. 2015). Because we conclude that publication is
warranted with respect to one issue addressed in that decision, we withdraw our initial order and,
in an accompanying opinion filed simultaneously herewith, we remand for further proceedings
on Victory’s due process claim arising out of his parole rescission.

                                                  3
        The district court also properly dismissed Victory’s claim that his Fourth Amendment
rights were violated when certain Syracuse defendants allegedly placed a global positioning
system (“GPS”) device on his vehicle, without a warrant, during his parole supervision. Even
assuming that Victory had raised a genuine dispute as to the placement of a GPS device on his
vehicle, the defendants personally involved in that action would be entitled to qualified
immunity.3 Qualified immunity protects public officials from liability for civil damages when
their actions “did not violate clearly established law, or . . . it was objectively reasonable for the
defendant to believe that his action did not violate such law.” Russo v. City of Bridgeport, 479
F.3d 196, 211 (2d Cir. 2007) (internal quotation marks omitted). In 2000, when the alleged
conduct occurred, it was not “clearly established” that the warrantless placement of a GPS
device on the vehicle of a parolee subject to electronic monitoring would violate the Fourth
Amendment. See United States v. Aguiar, 737 F.3d 251, 261-62 (2d Cir. 2013) (holding police
officers’ warrantless placement of GPS on defendant’s vehicle in 2009 fell within the good-faith
exception to exclusionary rule because such conduct was “objectively reasonable” under United
States v. Knotts, 460 U.S. 276 (1983)).

        Victory asserts no other colorable challenge to his supervision during his parole release.
Although he asserts that the Department of Parole violated New York regulations or its own
policies, such conduct is not actionable under Section 1983. See Graziano, 689 F.3d at 116;
Patterson v. Coughlin, 761 F.2d 886, 891 (2d Cir. 1985). Similarly, while Victory alleges a
conspiracy between McCarthy and the Syracuse Defendants, he does not identify a federal or
constitutional right that these individuals conspired to violate. See Singer v. Fulton Cnty. Sheriff,
63 F.3d 110, 119 (2d Cir. 1995).

        Finally, the district court did not err in dismissing Victory’s challenges to the
proceedings resulting in his parole revocation. The district court rejected these claims as barred
by Heck v. Humphrey, 512 U.S. 477 (1994), which “specifies that a prisoner cannot use § 1983
to obtain damages where success would necessarily imply the unlawfulness of a (not previously
invalidated) conviction or sentence.” Wilkinson v. Dotson, 544 U.S. 74, 81 (2005); see Poventud
v. City of New York, 750 F.3d 121, 138 (2d Cir. 2014). Victory contends that Heck does not
preclude his Section 1983 claims because: (1) habeas corpus relief is no longer available since he
was long ago released from state custody, see Huang v. Johnson, 251 F.3d 65, 75 (2d Cir. 2001),
certified question accepted, 754 N.E.2d 194 (N.Y. 2001), and certified question answered, 760
N.E.2d 341 (N.Y. 2001); Green v. Montgomery, 219 F.3d 52, 60 n.3 (2d Cir. 2000); and (2) the
favorable termination requirement is satisfied, at least with respect to the duration of his
confinement, because, in a 2005 Article 78 proceeding, the Clinton County Supreme Court
(Feldstein, J.), overturned his 60-month delinquent time assessment as “shocking[ly]”
disproportionate, App’x at 1717, while upholding the revocation decision.

         Even assuming that Heck does not bar Victory’s revocation claims, dismissal was
nonetheless proper. Victory has not alleged that he was denied any constitutional or federal right
at his revocation proceedings. See Patterson, 761 F.2d at 891. Nor has he identified any


       3
        Moreover, Victory does not challenge on appeal the district court’s dismissal of his
claims against the City of Syracuse for failure to establish municipal liability pursuant to Monell
v. Department of Social Services of City of New York, 436 U.S. 658, 692 (1978).

                                                  4
individual, not protected by absolute immunity, who was personally involved in those
proceedings. See Montero v. Travis, 171 F.3d 757, 761 (2d Cir. 1999) (“[P]arole board officials,
like judges, are entitled to absolute immunity from suit for damages when they serve a
quasi-adjudicative function in deciding whether to . . . revoke parole.”); see also Walker v. Bates,
23 F.3d 652, 658 (2d Cir. 1994) (explaining that absolute immunity often bars due process
damages claims by individuals serving invalidated sentences). Accordingly, we affirm the
dismissal of all claims arising out of the revocation of Victory’s parole.

      We have considered Victory’s remaining arguments and find them to be without merit.
We therefore affirm the district court’s dismissal of Victory’s equal protection claims and Fourth
Amendment claims, as well as any claims arising out of the revocation of his parole.

    For the reasons stated herein and in the accompanying opinion, we AFFIRM IN PART,
VACATE IN PART, and REMAND for further proceedings consistent with this opinion.

                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




                                                 5
