Case 7:06-cv-00480-CS Document 98 Filed 12/21/07 Page 1 of 2

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
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PETER GRAZIANO, JAMES BUCKLEY, MARK MALONE, ROBERT A. HARRIS, WILLIAM WALKER, AARON TALLEY, MAURICE MURRELL, STEVEN HO, BRIAN JACQUES, and CHARLES FRIEDGOOD, suing on behalf of themselves and all others similarly situated,

06 Civ. 00480 (CLB)(LMS)
PRM'GSED ORDER FOR CLASS CERTIFICATION AND NOTICE TO THE CLASS

Plaintiffs,

-against-

GEORGE E. PATAKI, Govemorofthe State ofNew York, ROBERT DENNISON, Chairman of the New York State Division ofParole, and THE NEW YORK STATE DIVISION OF PAROLE,

Defendants.
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Upon consideration of Plaintiffs' Cross-Motion for Class Certification and Notice to the

Class and all responsive papers, it is hereby ORDERED that:

1. This action is certified as a class action for the plaintiff class pursuant to Rule

23{a) and 23(b)(2).

2. The plaintiff class shall be defined as all prisoners in the custody of the New York

State Department of Correctional Services who (1) were convicted of A-1 felony offenses; (2)

have served the minimum terms oftheir indeterminate sentences and are therefore eligible for

parole release; and (3) have had their most recent applications for parole release denied by the

Parole Board solely because of the "seriousness of the offense", the "nature of the present

offense", or similar reasons.

Case 7:06-cv-00480-CS Document 98 Filed 12/21/07 Page 2 of 2
3. Copies of the attached notice to the class of the pendency of this action shall be
posted in all Law Libraries and Housing Units in all correctional facilities within the State of New York for the duration of this litigation. Dated: White Plains, New York
December 20, 2007 SO ORDERED:
tU w..k \--- ,q~~
CHARLES L. BRlEANT United States District Judge

 
 Case 7:06-cv-00480-CS Document 140 Filed 12/16/10 Page 1 of 1

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - - - -X Peter Graziano, James Buckley, Mark Malone, Robert A. Harris, William Walker, Aaron Talley, Maurice Murrell, Steven Ho, Brian Jacques, Charles Friedgood, all suing on behalf of himself and all others similarly situated

06 CIVIL 0480 (CS)

Plaintiffs,

JUDGMENT

-against-

George E. Pataki, Governor of the State of New York, Robert Dennison, Chairman of the New York State Division of Parole and The New York State Division of Parole

Defendants. - -X

Whereas the above entitled action having been assigned to the Honorable Cathy Seibel, U.S.D.J., and the Court thereafter on December 10, 2010, 2010, having handed down its Memorandum To the Docket Clerk granting defendants' motion for dismissal of the First Amended Complaint and directed the clerk of close the case, it is,

ORDERED# ADJUDGED AND DECREED: That the action be and it is hereby dismissed.

Dated: White Plains, New York
December 16, 2010
i:/judgment/graziano.480

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FOR THE

SECOND CIRCUIT

N.Y.S.D. Case #

MANDATE ______________________________________________

06-cv-0480(CS)

At a Stated Term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 3rd day of

August, two thousand twelve.

Before: ROBERT A. KATZMANN, RICHARD C. WESLEY, Circuit Judges, STEFAN R. UNDERHILL, District Judge.*
_________________________________________ PETER GRAZIANO, JAMES BUCKLEY, MARK MALONE, ROBERT A. HARRIS, WILLIAM WALKER, AARON TALLEY, MAURICE MURRELL, STEVEN HO, and BRIAN JACQUES, suing on behalf of themselves and all others similarly situated,
Plaintiffs-Appellants,
v.
GEORGE E. PATAKI, Governor of the State of New York, ROBERT DENNISON, Chairman of the New York State Division of Parole, and THE NEW YORK STATE DIVISION OF PAROLE,

JUDGMENT Docket No.: 11-116
USDC SDNY DOCUMENT ELECTRONICALLY FILED DOC #: _________________ DATE FILED: ______________

Defendants-Appellees. __________________________________________

The appeal in the above captioned case from a judgment of the United States District Court for the Southern District of New York was argued on the district court's record and the parties' briefs. Upon consideration thereof,

IT IS HEREBY ORDERED, ADJUDGED and DECREED that the judgment of the District Court is AFFIRMED in accordance with the opinion of this court.

For The Court:

Catherine O'Hagan Wolfe, Clerk of Court

MAND_A__T__E___I_S__S__U___E__D___O__N__ 11/14/2012
*The Honorable Stefan R. Underhill, of the United States District Court for the District of Connecticut, sitting by designation.

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UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

_______________

August Term, 2011

(Argued: March 8, 2012

Decided: August 3, 2012)

________________________________________________________
PETER GRAZIANO, JAMES BUCKLEY, MARK MALONE, ROBERT A. HARRIS, WILLIAM WALKER, AARON TALLEY, MAURICE MURRELL, STEVEN HO, and BRIAN
JACQUES, suing on behalf of themselves and all others similarly situated,
Plaintiffs-Appellants,
—v.—
GEORGE E. PATAKI, Governor of the State of New York, ROBERT DENNISON, Chairman of the New York State Division of Parole, and THE NEW YORK STATE DIVISION OF PAROLE,
Defendants-Appellees.
Docket No. 11-116-pr
________________________________________________________

B e f o r e : KATZMANN and WESLEY, Circuit Judges, and UNDERHILL, District Judge.*
_______________
Appeal from a December 16, 2010 judgment of the United States District Court for the Southern District of New York (Seibel, J.) granting defendants’ renewed motion to dismiss plaintiffs’ class action for failure to state a claim. We hold that plaintiffs have failed to state a claim for violation of their federal constitutional rights under either the Fourteenth Amendment or the Ex Post Facto Clause. AFFIRMED.

* The Honorable Stefan R. Underhill, of the United States District Court for the District of Connecticut, sitting by designation.

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Underhill, District Judge, filed a separate opinion dissenting. _______________
ROBERT N. ISSEKS (Alex Smith, on the brief), Middletown, NY; Peter A. Sell, New York, NY, for Plaintiffs-Appellants. STEVEN C. WU, Assistant Solicitor General (Barbara D. Underwood, Solicitor General; Benjamin N. Gutman, Deputy Solicitor General, on the brief), for Eric T. Schneiderman, Attorney General of the State of New York, New York, NY, for Defendants-Appellees.
_______________ PER CURIAM:
Plaintiffs-Appellants Peter Graziano, James Buckley, Mark Malone, Robert A. Harris, William Walker, Aaron Talley, Maurice Murrell, Steven Ho, and Brian Jacques (collectively, “Plaintiffs”) filed this class action against Defendants-Appellees George Pataki, the Governor of the State of New York; Robert Dennison, the Chairman of the New York State Division of Parole; and the New York State Division of Parole (collectively, “Defendants”) on behalf of themselves and all other New York State prisoners convicted of violent felony offenses. Plaintiffs allege that they have been denied parole as a result of an “unwritten policy” to deny parole to violent felony offenders, and that this unofficial policy violates three provisions of the federal constitution: (1) the Due Process Clause of the Fourteenth Amendment; (2) the Equal Protection Clause of the Fourteenth Amendment; and (3) the Ex Post Facto Clause. Because we conclude that Plaintiffs have failed to state a claim for violation of their rights under any of these provisions, we affirm the December 10, 2010 judgment of the United States District Court for the Southern District of New York granting Defendants’ motion to dismiss Plaintiffs’ complaint pursuant to Rule 12(c) of the Federal Rule of Civil Procedure.
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New York’s parole system is administered by the Board of Parole (the “Board”). See
New York State Executive Law §§ 259, 259-b. The Board’s authority to grant parole release is
governed by Executive Law § 259-i, which provides, in relevant part:
Discretionary release on parole shall not be granted merely as a reward for good conduct or efficient performance of duties while confined but after considering if there is a reasonable probability that, if such inmate is released, he will live and remain at liberty without violating the law, and that his release is not incompatible with the welfare of society and will not so deprecate the seriousness of his crime as to undermine respect for law. In making the parole release decision, the procedures adopted pursuant to subdivision four of section two hundred fifty-nine-c of this article shall require that the following be considered: (i) the institutional record including program goals and accomplishments, academic achievements, vocational education, training or work assignments, therapy and interactions with staff and inmates; (ii) performance, if any, as a participant in a temporary release program; (iii) release plans including community resources, employment, education and training and support services available to the inmate; (iv) any deportation order issued by the federal government against the inmate while in the custody of the department and any recommendation regarding deportation made by the commissioner of the department pursuant to section one hundred forty-seven of the correction law; (v) any statement made to the board by the crime victim or the victim’s representative, where the crime victim is deceased or is mentally or physically incapacitated; (vi) the length of the determinate sentence to which the inmate would be subject had he or she received a sentence pursuant to section 70.70 or section 70.71 of the penal law for a felony defined in article two hundred twenty or article two hundred twenty-one of the penal law; (vii) the seriousness of the offense with due consideration to the type of sentence, length of sentence and recommendations of the sentencing court, the district attorney, the attorney for the inmate, the presentence probation report as well as consideration of any mitigating and aggravating factors, and activities following arrest prior to confinement; and (viii) prior criminal record, including the nature and pattern of offenses, adjustment to any previous probation or parole supervision and institutional confinement.
§ 259-i(2)(c)(A) (emphasis added). “While consideration of these guidelines is mandatory, the
ultimate decision to parole a prisoner is discretionary.” Silmon v. Travis, 95 N.Y.2d 470, 477
(2000). In addition, although the Board “must provide the inmate with a proper hearing in which
only the relevant guidelines are considered,” it “need not expressly discuss each of these
guidelines in its determination.” King v. N.Y. State Div. of Parole, 83 N.Y.2d 788, 791 (1994).
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An inmate who objects to a parole denial may file an administrative appeal with the Board’s Appeals Unit, see Executive Law § 259-i(4)(a); 9 N.Y.C.R.R. §§ 8006.1(a), 8006.4(a), and an inmate may challenge the Appeals Unit’s decision in New York state court by filing a petition under Article 78 of New York’s Civil Practice Law and Rules, see, e.g., Garcia v. N.Y. State Div. of Parole, 657 N.Y.S.2d 415 (N.Y. App. Div. 1997).
The named plaintiffs represent a class of prisoners who (1) were convicted of A-1 violent felony offenses, such as murder; (2) have served the minimum terms of their indeterminate sentences and are therefore eligible for parole release; and (3) have had their most recent applications for parole release denied by the Board because of the seriousness of the underlying offense. See Graziano v. Pataki, No. 06 Civ. 480 (CLB), 2007 U.S. Dist. LEXIS 89737, at *5 (S.D.N.Y. Dec. 5, 2007). Their complaint alleges that defendant George Pataki, who was Governor of New York from 1995 to 2006, adopted an unwritten policy to deny parole to violent felony offenders solely because of the violent nature of their offenses and “without any meaningful consideration or balancing of any other relevant or statutorily mandated factors.” First Amended Compl. ¶ 21. This “unofficial policy” assertedly led to a drop in the release rates for violent offenders, from a high of 28% in 1993-94 to a low of 3% in 2000-01.1 See First Amended Compl. & Attach; see also Pls.’ Br. 11. Plaintiffs maintain that this alleged policy constitutes “a violation of due process and equal protection and is an unconstitutional ex post
1 However, Plaintiffs acknowledged in the proceedings below, in their principal brief on appeal, and during oral argument that parole release rates for A-1 violent felons have steadily risen from their low point in 2000-01; for example, release rates had increased to 6.5% by 2004 and to 21.1% by 2006. See, e.g., Decl. of Robert N. Isseks ¶ 16, dated May 10, 2007, Dkt. No. 80; Pls.’ Br. 21 (“[A]s of March 6, 2007, 295 inmates were eligible for parole in 2006 and 62 were released, which meant the then current release rate was 21.1 %.”).
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facto enhancement” of the class members’ sentences, and seek declaratory relief and a permanent injunction requiring Defendants to make parole determinations “in accordance with the mandates of, and solely for the purposes underlying, N.Y.S. Executive Law § 259-i.” Id. ¶¶ 2, 19-21.
We review a judgment under Federal Rule of Civil Procedure 12(c) de novo, accepting the complaint’s factual allegations as true and drawing all reasonable inferences in the plaintiff’s favor. See Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010). To survive a Rule 12(c) motion, the complaint must contain sufficient factual matter to “state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
We turn first to Plaintiffs’ due process claim. “The Fourteenth Amendment’s Due Process Clause protects persons against deprivations of life, liberty, or property; and those who seek to invoke its procedural protection must establish that one of these interests is at stake.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005). “In order for a state prisoner to have an interest in parole that is protected by the Due Process Clause, he must have a legitimate expectancy of release that is grounded in the state’s statutory scheme.” Barna v. Travis, 239 F.3d 169, 170 (2d Cir. 2001) (per curiam). We have squarely held 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.” Id. at 171; see also id. (“Neither the mere possibility of release, nor a statistical probability of release, gives rise to a legitimate expectancy of release on parole.” (citations omitted)).
Plaintiffs nonetheless argue that they “have a limited liberty interest in ‘not being denied parole for arbitrary or impermissible reasons,’” Pls.’ Br. 32 (quoting Boddie v. N.Y. State Div. of
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Parole, 285 F. Supp. 2d 421, 428 (S.D.N.Y. 2003)), and that a policy of denying parole to nearly all violent offenders constitutes “‘flagrant or unauthorized’” action in violation of their minimal due process rights, Pls.’ Br. 41 (quoting Monroe v. Thigpen, 932 F.2d 1437, 1441 (11th Cir. 1991)). As we have previously explained in prior cases involving substantively identical allegations, however, the claims Plaintiffs assert in this action are insufficient to trigger any such “limited liberty interest.” For example, in McAllister v. New York State Division of Parole, 432 F. App’x 32 (2d Cir. 2011) (summary order), we affirmed the dismissal of allegations that a prisoner was denied parole pursuant to an “unofficial policy” to deny parole to violent felony offenders solely on the basis of the violent nature of their convictions. Similarly, in Mathie v. Dennison, 381 F. App’x 26 (2d Cir. 2010) (summary order), we affirmed the dismissal of a claim, almost identical to the one presented here, that New York State implemented an “unofficial policy” to deny parole to violent felony offenders solely on the basis of the violent nature of their convictions and without proper consideration of all the statutory criteria. There, we relied on the district court’s “thorough and well-reasoned order,” which concluded that a policy that requires the Board to look first and foremost at the severity of the crime when making its parole determination is neither arbitrary nor capricious and that a plaintiff cannot state a federal due process claim for alleged violations of state law. Id. (citing Mathie v. Dennison, No. 06 Civ. 3184 (GEL), 2007 U.S. Dist. LEXIS 60422 (S.D.N.Y. Aug. 16, 2007)).
Plaintiffs’ allegations are insufficient for at least two reasons. First, Plaintiffs do not allege that the State’s unofficial policy requires the Board to look outside the statutory factors in making its parole determination; instead, they merely argue that the Board has overvalued the severity of the crime at the expense of other statutory considerations. However, Plaintiffs’
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minimal due process rights are “limited to not being denied parole for arbitrary or impermissible reasons.” Boddie, 285 F. Supp. 2d at 428.2 A policy of according substantial weight to the severity of the crime is neither arbitrary nor capricious; indeed, the Board is required to consider this factor as part of its determination, and it is entitled to give whatever weight it deems appropriate to each of statutory factors. Mathie, 2007 U.S. Dist. LEXIS 60422, at *18; see also Robles v. Dennison, 449 F. App’x 51 (2d Cir. 2011) (summary order) (“[T]he Parole Board is authorized to take a punitive or retributive factor into consideration, by asking whether the nature of the prisoner’s crime ever makes release from incarceration to parole appropriate.”) (internal quotation marks and alterations omitted); Romer v. Travis, No. 03 Civ. 1670, 2003 U.S. Dist. LEXIS 12917, at *20 (S.D.N.Y. July 29, 2003) (“The Parole Board may give whatever weight it deems appropriate to the statutory factors, and is entitled to determine that the nature of the crime outweighed the positive aspects of petitioner’s record.”) (internal quotation marks and alterations omitted). “The Due Process Clause is not violated by the Board’s balancing of the statutory criteria, which is the Board’s primary responsibility and is not properly second-guessed by this Court.” Mathie, 2007 U.S. Dist. LEXIS 60422, at *19. Rather, to state a claim for violation of their minimal due process rights, Plaintiffs must allege that they were denied parole based on an “inappropriate consideration of a protected classification or an irrational distinction.” Morel v. Thomas, No. 02 Civ. 9622, 2003 U.S. Dist. LEXIS 10935, at *13 (S.D.N.Y. June 26, 2003).3 Plaintiffs’ complaint contains no such allegations.

2 See also Rodriguez v. Greenfield, 7 F. App’x 42 (2d Cir. 2001) (considering a case in which the Board rendered its decision based on a prison record that was missing sixteen years of documentation and a presentence investigation report and suggesting, but not deciding, that a parole system may become constitutionally offensive if administered maliciously or in bad faith).

3 See also Harris v. Travis, No. 04-CV-911A(F), 2007 U.S. Dist. LEXIS 33457, at *11 (W.D.N.Y. May 7, 2007) (“[A] parole board’s denial of parole resulting from political pressure to get tough on violent felony offenders, is based on a permissible consideration and does not violate a prisoner’s federal equal protection rights, absent any claim that the denial was based on race, religion, or intent to punish or inhibit the exercise of constitutional rights, or malicious or
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Second, even if New York State implemented an official policy denying parole to all
violent offenders, such a policy would not violate the Due Process Clause even if the policy were
adopted or implemented in violation of state law. As Judge Lynch explained in Mathie:
Plaintiffs conflates a potential state law claim with a non-existent constitutional claim. Plaintiff may be correct that a blanket policy denying parole to all violent felons violates existing state law; however, constitutional and state law claims are not inherently coextensive. . . . The argument that a disregard of governing state law inherently renders a parole decision arbitrary or procedurally flawed proves too much. If such an argument were accepted, every state law requirement would ipso facto be incorporated into federal constitutional law.
Mathie, 2007 U.S. Dist. LEXIS 60422, at *21-22. Thus, while Plaintiffs may be able to state a
valid claim in New York State courts under New York State law, Plaintiffs have failed to state a
claim under the Due Process Clause of the United States Constitution.
Despite this clear circuit precedent, the dissent asserts that Plaintiffs have stated a
substantive due process claim by alleging that they have been denied parole for arbitrary and
impermissible reasons. But the Supreme Court has made clear that “only the most egregious
official conduct can be said to be ‘arbitrary in the constitutional sense.’” Cty. of Sacramento v.
Lewis, 523 U.S. 833, 846 (1998) (quoting Collins v. Harker Heights, 503 U.S. 115, 129 (1992)).
A blanket policy denying parole to violent felony offenders simply does not constitute egregious
official conduct. If a blanket policy denying parole to violent-felony offenders does not, on its
own, constitute a constitutional violation, the dissent is left to argue that the policy violates
substantive due process because it runs afoul of state law. That view ignores the Supreme
Court’s repeated admonitions to exercise “judicial self-restraint” and “the utmost care” when

bad faith intent to injure a person.”) (internal quotation marks omitted); Seltzer v. Thomas, No. 03 Civ.00931 (LTS) (FM), 2003 U.S. Dist. LEXIS 12912, at *11 (S.D.N.Y. July 28, 2003) (“Seltzer claims that his parole denial was the result of political pressure on the part of Governor Pataki, who has conducted an overt and covert campaign to eliminate parole for all so-called violent felony offenders. Assuming that this is true, it does not constitute an impermissible ground for the denial of parole.” internal quotation marks omitted)).
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addressing a substantive due process claim, Harker Heights, 503 U.S. at 125, and risks constitutionalizing every violation of state law. We decline to take such an unprecedented step.

We turn next to Plaintiffs’ claim that the Board’s alleged “unofficial policy” to deny parole to violent felony offenders violates the Equal Protection Clause of the Fourteenth Amendment. “[E]qual protection is not a license for courts to judge the wisdom, fairness, or logic of legislative choices,” and “[i]n areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” FCC v. Beach Commc’ns, 508 U.S. 307, 313 (1993). “Because prisoners either in the aggregate or specified by offense are not a suspect class, the [classification] will be upheld if [it is] rationally related to a legitimate state interest.” Lee v. Governor of N.Y., 87 F.3d 55, 60 (2d Cir. 1996). Here, the rational basis for a distinction in parole determinations between violent and nonviolent offenders is selfevident: preventing the early release of potentially violent inmates who may pose a greater danger to the safety of others. Plaintiffs have therefore failed to state an equal protection claim.
Finally, Plaintiffs’ ex post facto argument is foreclosed by our decision in Barna, and must be rejected for that reason alone. See Barna, 239 F.3d at 171 (“The Ex Post Facto Clause does not apply to guidelines that do not create mandatory rules for release but are promulgated simply to guide the parole board in the exercise of its discretion.”); see also Mathie, 2007 U.S. Dist. LEXIS 60422 (“[A]ny changes to parole guidelines do not constitute ‘laws within the meaning of the’ Ex Post Facto Clause.”) (quoting Barna, 239 F.3d at 171).
We have considered Plaintiffs’ remaining arguments and find them to be without merit. For the reasons stated herein, the judgment of the district court is AFFIRMED.

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Stefan R. Underhill, District Judge, dissenting in part: The allegations in this case are staggering: According to plaintiffs, the former
Governor of New York and the head of the State Parole Commission conspired to convert hundreds of indeterminate sentences into determinate sentences of life in prison without the possibility of parole. The complaint alleges that the defendants adopted an unwritten policy to deny parole to all prisoners convicted of class A-1 felonies, no matter their record of rehabilitation or fitness for release. They did so to advance their own “political and economic agenda.” First Amended Compl. ¶ 2. Their purported scheme circumvented the commands of both legislators and judges; the legislature instructed the Parole Board to consider eight factors when determining whether offenders are ready to rejoin their communities and judges imposed open-ended sentences believing that the Parole Board would do so. But the Governor’s purported policy flouted these directives. It allegedly turned parole hearings into sham proceedings – inmates could present evidence and call witnesses, but they would waste their breath because the policy tied the commissioners’ hands. As a result, the Governor and the Parole Board consigned hundreds of people to life in prison.
At least, that is what the complaint requires us to assume.1 But the majority downplays these factual allegations in the complaint and reframes the plaintiffs’ legal claim for relief. Because, when viewed in the proper light, the complaint states a plausible claim for a violation of substantive due process, I respectfully dissent.

1 Attached to the complaint are statistics showing that violent felons were granted parole at a rate of 28% in 1993-94, 14% in 1995-96, and no more than 4% in 2000-01, 2001-02 and 2002-03. Those numbers, which we must assume to be accurate, support the plausible existence of the claimed unofficial policy.
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The heart of plaintiffs’ claim is that “[s]ince 1995 the Board of Parole has been issuing parole determinations pursuant to an unofficial policy of denying parole release to prisoners convicted of A-1 violent felony offenses solely on the basis of the violent nature of such offenses and thus without proper consideration to any other relevant or statutorily mandated factor.” First Amended Compl. ¶ 31. Plaintiffs allege that the unofficial policy “precludes and/or substantially curtails the Parole Board’s full and meaningful consideration of the . . . statutorily mandated factors,” and results in “parole decisions for prisoners serving sentences for A-1 violent felonies [based] upon impermissible political and economic factors.” Id. ¶ 34. Somehow the majority reads these allegations as asserting no more than that “the Board has overvalued the severity of the crime at the expense of other statutory considerations,” Majority Op. at 7 (emphasis in original), and thus as no more than a complaint about the manner in which the Parole Board has exercised its discretion.
If the plaintiffs’ claimed only that the Parole Board placed too much emphasis on one of the statutory factors when making parole decisions or otherwise violated state law, their claim would be meritless. But the plaintiffs do not claim that the Parole Board merely placed heavy weight on one factor while also considering all of the required factors. Instead, plaintiffs claim that the Parole Board based release decisions “solely on the basis of the violent nature of such offenses and thus without proper consideration to any other relevant or statutorily mandated factor.” First Amended Compl. at ¶ 31 (emphasis supplied). When combined with the allegation that the alleged policy sought to further a political and economic agenda, plaintiffs state a claim that they have been denied parole for arbitrary and impermissible reasons, a cause of action implicitly
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recognized by this Court. Mathie v. Dennison, No. 06 Civ. 3184, 2007 U.S. Dist. LEXIS 60422 at *15 (S.D.N.Y. Aug. 16, 2007), aff’d, 381 Fed. App’x 26 (2d Cir. 2010); Rodriguez v. Greenfield, 7 Fed. App’x 42, 44-45 (2d Cir. 2001) (“Our decision[s] [do] not answer the question raised in this case because in considering Rodriguez’s 1998 parole denial, the Parole Board never considered a number of these factors … as it was mandated to consider by state law.”). In the present procedural posture, this Court has no basis to hold that the Parole Board decisions over the pertinent period of time were not arbitrary and impermissible.2
The majority suggests that the allegations of the amended complaint fail to state a claim for a violation of substantive due process. I believe such a claim has been stated, and I am aware of no decision of this Court that precludes such a claim as a matter of law. The Due Process Clause’s substantive dimension “bar[s] certain government actions regardless of the fairness used to implement them.” Daniels v. Williams, 474 U.S. 327, 331 (1986). It prevents officials from “abusing [their] power, or employing it as an instrument of oppression.” Cnty. of Sacramento v. Lewis, 523 U.S. 833, 840 (1998) (quoting Deshaney v. Winnebago Cnty. Dept. of Social Servs., 489 U.S. 189 (1989)).
When a member of the executive branch is charged with violating substantive due process, “the threshold question is whether the behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.” Lewis, 523 U.S. at 847 n.8. The standard is admittedly “open-ended”; both the Supreme Court and this Court have called for “judicial self-restraint” whenever a court confronts a substantive due process claim. Collins v. City of Harker Heights, 503

2 The record does include evidence supportive of plaintiffs’ claims, but the procedural posture of the case prevents me from relying on it.
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U.S. 115, 125 (1992); Local 342, Long Island Pub. Serv. Emp. v. Town Bd. of Huntington, 31 F.3d 1191, 1196 (2d Cir. 1994). Courts, then, engage in a fact-intensive analysis attuned to “the state of mind of the government actor and the context in which the action was taken.” O’Connor v. Pierson, 426 F.3d 187, 203 (2d Cir. 2005).
Here, several aspects of the defendants’ purported scheme remove it from the boundaries of decency and render it more than just an unfortunate policy choice. First, the defendants allegedly acted with the specific intent of depriving prisoners of their opportunity to win release. As Lewis made clear, only deliberate decisions to cause harm fall clearly within the scope of the Due Process Clause’s protection. In the words of the Court, “[c]onduct intended to injure in some way unjustifiable by any government interest is the sort of official action most likely to give rise to the conscience-shocking level.” Lewis, 523 U.S. at 848.
Second, executive officials have no justifiable interest in circumventing mandated hearings or ignoring statutory criteria. In a similar context, this Court has held that an official loses legitimacy when he acts without regard for accepted standards of practice. In Bolmer v. Oliveira, 594 F.3d 134 (2d Cir. 2010), a doctor involuntarily committed a person to a psychiatric facility without completing a required exam. The Court held that a physician’s decision to depart from customary procedures and criteria could shock the conscience because, in part, “a substantial departure from those standards . . . removes any ‘reasonable justification’ for intentionally depriving the person of his or her liberty.” Id. at 142. Here, defendants’ alleged policy in effect resentenced hundreds of offenders to life in prison without the possibility of parole and without consideration of an individual’s record according to statutorily-mandated factors.
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Third, this is not a case in which an executive official acted within his discretion to solve a difficult policy problem. New York Executive Law § 259(i) allows the Parole Board to weigh factors militating for and against parole as it sees fit. But the Parole Board must weigh all statutory factors. See King v. New York State Div. Parole, 632 N.E. 2d 1277 (N.Y. 1994). The criteria prescribed in New York Executive Law § 259(i), if applied properly, are designed to separate offenders who pose a risk to their communities from offenders who have developed the strength of character to return home without falling back into a life of crime. Thus, this is not a statute that contains conflicting commands requiring an executive to quickly fill gaps in order to ensure that an administrative regime functions smoothly. See, e.g., Lombardi v. Whitman, 485 F.3d 73, 85 (2d Cir. 2007) (reasoning that conduct did not shock the conscience because officials merely “allocate[ed] . . . risk” when faced with an emergency).
Last, and, most important, the Governor’s alleged scheme would offend one of the most fundamental principles in our legal system—that the executive cannot confine a person without lawful authority. As the Supreme Court has noted, the Framers constructed the Constitution to “guard against the abuse of monarchial power,” and for that reason they cabined the executive’s ability to “imprison . . . contrary to the law of the land.” Boumedienne v. Bush, 553 U.S. 723, 740 (2008). That concern animates many of the bedrock provisions of our Constitution, including the Suspension Clause, the Sixth Amendment Right to Counsel, and the Right to a Trial by Jury. See U.S. CONST. art. I, § 9, cl. 2; U.S. CONST. amend. VI. Although those provisions do not apply in this case, their existence and purpose should inform any analysis of the Due Process Clause’s scope; in a related context, the Supreme Court has reasoned that the Clause’s breadth
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depends upon “our Nation’s history, legal traditions, and practices.” Washington v. Glucksberg, 521 U.S. 702, 710 (1997) (outlining method for identifying a fundamental right protected by substantive due process). I can imagine no deeper tradition than our nation’s longstanding commitment to ensuring that the government cannot condemn a man to life behind bars without notice or cause.3 See, e.g., Zadvydas v. Davis, 533 U.S. 678 (2001) (holding that indefinite detention of deportable aliens violates substantive due process); Foucha v. Louisiana, 504 U.S. 71 (1992) (holding that substantive due process bars state from detaining a person acquitted by reason of insanity after he has been treated and judged competent). Yet, that is exactly what the Governor’s alleged policy would do: People sentenced to prison but guaranteed the opportunity to petition for their freedom—some in reliance on explicit plea deals— would find themselves facing life sentences without any hope of release.
The majority asserts that a blanket policy to deny parole to all violent offenders without consideration of the required statutory factors is not arbitrary in the constitutional sense and that my contrary view relies only on a violation of state law. I believe that criticism is misplaced. In my view, the egregiousness – and the constitutional dimension -- of the conduct does not disappear merely because that conduct was undertaken by the

3 I express no view regarding the adequacy of New York’s parole hearings. Greenholtz v. Nebraska famously held that a prisoner has no liberty interest in parole. 442 U.S. 1 (1979). Although I am skeptical of that decision’s logic—the Court reasoned that a “statutory expectation” in freedom is somehow qualitatively different than an interest in it—I need not revisit that question today. The question here is not whether the prescribed procedures governing parole decisions are adequate to protect a cognizable entitlement. Rather, the question is whether a particular method of executive enforcement that results in a dramatic loss to a class of citizens violates the Constitution’s guarantee of substantive due process. To answer that question, courts look to traditions that undergird the Constitution, and take those purposes into account when interpreting ambiguous provisions.
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executive rather than by the legislature. Although the plaintiffs’ ex post facto claim fails because the alleged policy is “not [a] ‘law[]’ within the meaning of the ex post facto clause,” Barna v. Travis, 239 F.3d 169, 171 (2d Cir. 2001), the alleged policy is plainly unconstitutional. There can be no doubt that the New York legislature could not constitutionally pass a statute retroactively converting all indeterminate sentences for violent felons into determinate sentences of life without the possibility of parole. Weaver v. Graham, 450 U.S. 24, 30-31 (1981) (“[E]ven if a statute merely alters penal provisions accorded by the grace of the legislature, it violates the [Ex Post Facto] Clause if it is both retrospective and more onerous than the law in effect on the date of the offense.”). Nonetheless, the majority holds that the executive can accomplish the same result for arbitrary reasons without engaging in egregious conduct violative of substantive due process.
No one can deny that plaintiffs in this case have committed despicable crimes. But according to New York state law they may rehabilitate themselves sufficiently to merit release. The defendants have an obligation to follow the statutory process that affords offenders an opportunity to show that they have changed. Thus, if plaintiffs’ claims are true, the defendants conspired to ignore statutory commands so that they could accomplish by unofficial policy what they could not constitutionally accomplish legislatively: the transformation of hundreds of indeterminate sentences into sentences of life imprisonment without the possibility of parole. 4 Such an intentional abuse of power shocks the conscience. 4 Such a consequence is especially troubling in cases where a defendant traded his right to trial for a lighter sentence that included the opportunity for parole. Cf. INS v. St. Cyr, 533 U.S. 289, 321-23 (2001) (holding that an immigration law could not be interpreted to apply retroactively if it would unsettle or frustrate defendants’ reasonable expectations at the time they pled guilty).
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have little doubt that plaintiffs would have found it quite difficult to present evidence from which a jury would infer that the Governor and the Chair of the Parole Board made a backroom deal designed to thumb their noses at the other branches of government and unlawfully condemn an entire class of offenders to life in prison. But we are not sitting as a jury or even reviewing a ruling granting summary judgment. We are reviewing a ruling on a motion for judgment on the pleadings, and must accept all well-pleaded allegations of the complaint as true. Under that required standard, plaintiffs’ amended complaint states a substantive due process claim upon which relief can be granted.
Accordingly, I respectfully dissent from the implicit holding that the amended complaint fails to state a substantive due process claim.
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 Graziano v. Pataki, Not Reported in F.Supp.2d (2006)
2006 WL 2023082 Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Peter GRAZIANO, James Buckley, Mark Malone, Robert A. Harris, William Walker, Aaron Talley, Maurice Murrell, Steven Ho, Brian Jacques and Charles Friedgood, suing on behalf of themselves and all others similarly
situated, Plaintiffs, v.
George E. PATAKI, Governor of the State of New York, Robert Dennison, Chairman of the New York State Division of Parole, and The New York State Division of Parole, Defendants.
No. 06 Civ. 0480(CLB). | July 17, 2006.
Attorneys and Law Firms
Robert Nathan Isseks, Middletown, NY, for Plaintiffs.
Neil Shevlin, New York State Department of Law (EPB), Albany, NY, for Defendants.
Opinion
Memorandum and Order
BRIEANT, J.
*1 Before the Court in this prisoner civil rights case, filed as a class action, is a motion to dismiss the Complaint (Doc. Nos.8, 9) filed on April 28, 2006. Opposition papers were filed May 25, 2006 and reply papers were filed June 9, 2006. Oral argument was held on June 16, 2006. No motion for class certification has yet been filed, but for ease of reference the Court may hereinafter refer to the case as a class action.
Unless otherwise noted, the following facts are assumed true for purposes of this motion only. The ten named individual Plaintiffs sue on behalf of themselves and all others similarly situated for violations of due process and equal protection under the Fourteenth Amendment, and for violations of the ex post facto clause. They argue that they have been denied full, fair and balanced parole hearings as required to be conducted pursuant to the provisions of New York State Executive Law § 259-1, and as a result have been subjected to unconstitutional enhancements of their sentences. All of the named plaintiffs were convicted of second degree murder by trial or plea, and several have additional crimes attached to their record.
Defendant Governor Pataki is being sued in his official capacity only. Defendant New York State Division of Parole is a 19-member Board of Parole with statutory responsibility for determining whether parole-eligible prisoners will be released. Defendant Robert Dennison was confirmed in June of 2000, as Chairman and Chief Executive Officer of the New York Division of Parole, and is sued only in his official capacity.
In the last several years during the tenure of Governor George E. Pataki, there has been commentary and speculation on what is perceived by some to be a sudden sharp curtailing of the number of parole grants for entire classes of otherwise eligible offenders. This statistically apparent policy change is perceived to be based on the fact that they have committed crimes of great violence such as murder. Certain state court judges and panel scholars have remarked on what they consider to be an undeniable inference that something has changed within the Parole Board, with respect to crimes of great violence while the statutory bases for the exercise of its discretion, common to all cases, remains unchanged.
In this action, Plaintiffs allege that since 1995, the “Board of Parole has been issuing parole determinations pursuant to an unofficial policy of denying parole release to prisoners convicted of A-1 violent felony offenses, solely on the basis of the violent nature of such offenses and thus without proper consideration to any other relevant or statutorily mandated factor.”
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Graziano v. Pataki, Not Reported in F.Supp.2d (2006)
First Amended Complaint (“Complaint”) at ¶ 31. Plaintiffs allege that the “unofficial policy of the Parole Board was instigated by [Governor] Pataki and has been implemented and executed by the Division of Parole under Parole Chairman Robert Dennison,” contrary to and in violation of New York State Executive Law § 259-I, which provides that several enumerated factors must all be considered in deciding whether to grant parole in a specific case. These include, but are not limited to the seriousness of the offense, the type of sentence, the length of sentence, the pattern of offenses, the inmate’s institutional record, including program goals and accomplishments, academic achievements, therapy and interpersonal relationships with staff and inmates. Complaint at ¶¶ 32, 33. Plaintiffs contend that the unofficial policy allegedly executed by the Parole Board is “in conflict with, and completely ignores the rehabilitative goals embodied in the provisions of the N.Y. S. Executive Law and Penal Law and contravenes the discretionary scheme mandated by these statutes.” Complaint at ¶ 36.
*2 Plaintiffs contend that the Defendants’ “unofficial policy precludes and/or substantially curtails the Parole Board’s full and meaningful consideration of the statutorily mandated factors,” and that the Parole Board bases its parole decisions for prisoners serving sentences for A-1 violent felonies upon impermissible factors. Complaint at ¶ 3. Plaintiffs allege that this unofficial policy has resulted in denials of parole that have been arbitrary and capricious and speculate that obtaining grants of federal money has been one of the motives for effecting a plunging parole release rate for violent criminals. See Oppo. Memo at 2-4. They cite to statistics illustrating that there has been a significant decline since 1995 in parole releases for prisoners serving sentences for A-1 violent offenses. Attached to the Complaint are summaries of the Parole Board Interviews and Release Rates for Fiscal Year (“FY”) 1991-1992 through 2002-2003, the Board decisions by Summary Crime Categories for 1992-1993 through 2002-2003, and the Board decisions by Crime of Commitment for FY 1991-1992 through 2002-2003. Complaint at Ex. A. Plaintiffs also refer to recent attention brought to this subject in an article in the New York Law Journal in which it was reported that the percentage of A-1 violent felons paroled each year had fallen from a high of 28% under Governor Cuomo to 3% in 2004-2005 under Governor Pataki. Oppo. Memo at 2, citing to ‘Dismantling Parole: Parole Release Rates Plunge Under Pataki’s Tough Policy,” New York Law Journal, January 31, 2006.
Plaintiffs contend that such a policy exists and has led to unequal treatment of prisoners convicted of A-1 violent felony offenses as compared to prisoners who are not serving sentences for such offenses, “in that the single criterion-the nature of the present offense-is all that is being given weight or consideration in the Board’s determinations as to whether prisoners convicted of A-1 violent felony offenses will be granted parole release, while due consideration is being given to other statutory criteria in determining whether other prisoners not so convicted will be granted parole release.” Complaint at ¶ 37.
Plaintiffs contend that the execution of this policy has also led to violations of their due process rights, because as a result of this policy, the denials of the parole release to class members “have been and continue to be arbitrary and capricious, based upon impermissible political and economic” reasons. They argue that execution of the policy of denying them parole without proper consideration of all relevant statutory factors constitutes unauthorized action in violation of Plaintiffs’ rights to due process guaranteed by the Fourteenth Amendment. Complaint at ¶ 38.
Plaintiffs finally assert violations of the ex post facto clause, asserting that the Parole Board’s policy has “brought about an ex post facto enhancement of the punishments imposed upon the named plaintiffs and members of the prospective class at their respective sentencings and thereby violates U.S. Const. Art. 1, § 10, cl. 1.” Complaint at ¶ 39.
*3 Plaintiffs acknowledge, as they must, that there have been numerous similar recent challenges in the New York State Supreme Courts through Article 78 proceedings and in the federal courts through § 1983 proceedings, in which it has been argued that the Parole Board has been dismantling parole, in refusing to give meaningful and balanced consideration to the various factors required by law and by giving undue weight to the violent nature of prisoners’ crimes. They distinguish this class action as focusing their challenge “not just on their own individual parole determinations, but on the unlawful manner in which the Pataki Parole Board is issuing adverse parole determinations on a class-wide basis,” and thereby failing to exercise its discretion. Oppo. Memo at 5. They argue that the Board has instead been “carrying out an Executive agenda, which calls for the elimination of parole for practically all A-1 violent felons.” Oppo. Memo at 6.
Defendants move to dismiss the Complaint for failure to state a claim of violations of due process, equal protection and the ex post facto clause, contending, inter alia, that there exists no such policy to deny parole outright to A-1 violent offenders and that Plaintiffs ignore the fact that their sentences involve a maximum sentence range of life imprisonment.
Proposed Class & Subclass Plaintiffs submit that members of the class are estimated to be in the thousands and are therefore so numerous to render
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Graziano v. Pataki, Not Reported in F.Supp.2d (2006)
joinder impracticable. The named Plaintiffs seek to represent a class comprised of all prisoners in the custody of the New York State Department of Correctional Services who: 1) were convicted of A-1 violent felony offenses;
2) have served the minimum terms of their indeterminate sentences and are therefore eligible for parole release; and
3) have had their most recent applications for parole release denied by the Parole Board solely because of the “seriousness of the offense,” the “nature of the present offense,” or words to that effect, and in some cases, their prior criminal history.
Complaint at ¶ 3.
Nine out of the ten named Plaintiffs (not Plaintiff Friedgood), also seek to represent a sub-class of prisoners who meet the same defining factors of the main class as set forth above, but who were also sentenced to less than the statutory maximum term of imprisonment-25 years to life-for their violent offenses.
The proposed class period for the class and subclass commences three years before the date the action was filed. The case was filed January 23, 2006, therefore the proposed class period begins January 23, 2003, and extends “until such date when the defendants are enjoined from, or otherwise cease, the unconstitutional manner in which the Parole Board is denying parole release to the plaintiffs and members of the proposed class and/or subclass.” Complaint at ¶ 5.
Abstention At the outset, the Court will address Defendants’ suggestion that this Court should abstain from deciding this issue under Pullman for purposes of comity, federalism, and New York’s separation of powers, and under Younger, for Plaintiffs Walker and Friedman, each of whom, they argue, has the same claims pending in state court. *4 Abstention under the Pullman doctrine may be appropriate when three conditions are met: (1) an unclear state statute is at issue; (2) resolution of the federal constitutional issue depends on the interpretation of the state law; and (3) the law is susceptible “to an interpretation by a state court that would avoid or modify the federal constitutional issue.” Greater New York Metro. Food Council v. McGuire, 6 F.3d 75, 77 (2d Cir.1993) (per curiam). Satisfaction of all three criteria does not automatically require abstention, however. “The doctrine of abstention ... is an extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it.”
Vermont Right to Life Comm. v. Sorrell, 221 F.3d 376, 385 (2d Cir.2000).
Plaintiffs oppose abstention, arguing that there is no unclear state statute involved, as the plain meaning of New York Executive Law § 259-I and New York Penal Law § 70.00 is not in dispute, and that sensitive issues of federalism are not involved. The Court recognizes that the issue presented is an extremely sensitive one. Human liberty interests are implicated, counterbalanced by societal interests in punishment and prevention of violent crime, as well as state separation of powers principles. The Court nevertheless declines to abstain, as the state law is not, in this Court’s view, unclear and the extraordinary recourse of abstention is not necessary. Insofar as concerns Younger abstention, it would apply only to two of the named plaintiffs, so the Court declines to consider that issue at this stage of the litigation.
Discussion In considering a motion to dismiss under Rule 12(b)(6), the Court is obliged to accept the well-pleaded assertions of fact in the complaint as true and to draw all reasonable inferences and resolve doubts in favor of the non-moving party. See Kaluczky v. City of White Plains, 57 F.3d 202, 206 (2d Cir.1995). The focus of the Court’s inquiry is not whether plaintiffs will ultimately prevail, but whether the plaintiffs are entitled to an opportunity to offer evidence in support of their claims. Therefore a motion to dismiss must be denied unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle plaintiff to relief. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
Parole in New York
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Graziano v. Pataki, Not Reported in F.Supp.2d (2006)
Parole in New York is entirely a creature of statute. “There shall be in the executive department of state government a state division of parole. The chairman of the state board of parole shall be the chief executive officer of the division.” N.Y. Exec. Law § 259(1). “There shall be in the state division of parole a state board of parole which shall possess the powers and duties hereinafter specified. Such board shall consist of not more than nineteen members appointed by the governor with the advice and consent of the senate. The term of office of each member of such board shall be for six years.” N.Y. Exec. Law § 259-b(1). “The governor shall designate one of the members of the board as chairman to serve in such capacity at the pleasure of the governor or until the member’s term of office expires and a successor is designated in accordance with law, whichever first occurs.” N.Y. Exec. Law § 259-b(3).
*5 The state board of parole shall “have the power and duty of determining which inmates serving an indeterminate or determinate sentence of imprisonment may be released on parole,” N.Y. Exec. Law § 259-c(1), and shall “establish written guidelines for its use in making parole decisions as required by law, including the fixing of minimum periods of imprisonment or ranges thereof for different categories of offenders.” Id. at § 259-c(4). New York’s law provides that:
Discretionary release on parole shall not be granted merely as a reward for good conduct or efficient performance of duties while confined but after considering if there is a reasonable probability that, if such inmate is released, he will live and remain at liberty without violating the law, and that his release is not incompatible with the welfare of society and will not so deprecate the seriousness of his crime as to undermine respect for law.
N.Y. Exec. § 259-i(2)(c)(A). It also provides: In making the parole release decision, the guidelines adopted pursuant to subdivision four of section two hundred fifty-nine-c of this article shall require that the following be considered: (I) the institutional record including program goals and accomplishments, academic achievements, vocational education, training or work assignments, therapy and interpersonal relationships with staff and inmates; (ii) performance, if any, as a participant in a temporary release program; (iii) release plans including community resources, employment, education and training and support services available to the inmate; (iv) any deportation order issued by the federal government against the inmate while in the custody of the department of correctional services and any recommendation regarding deportation made by the commissioner of the department of correctional services pursuant to section one hundred forty-seven of the correction law; and (v) any statement made to the board by the crime victim or the victim’s representative, where the crime victim is deceased or is mentally or physically incapacitated.
Id. The law permits appeal of parole determinations as follows: Except for determinations made upon preliminary hearings upon allegations of violation of presumptive release, parole, conditional release or post-release supervision, all determinations made pursuant to this section may be appealed in accordance with rules promulgated by the board. Any board member who participated in the decision from which the appeal is taken may not participate in the resolution of that appeal. The rules of the board may specify a time within which any appeal shall be taken and resolved.
NY Exec. § 259-i(4)(A).
The New York Court of Appeals has held: As the Supreme Court has recently stated, referring to the Federal parole system, in United States v. Addonizio (442 U.S. 178, 190): “The import of this statutory scheme is clear: the judge has no enforceable expectations with respect to the actual release of a sentenced defendant short of his statutory term. The judge may well have expectations as to when release is likely. But the actual decision is not his to make, either at the time of sentencing or later if his expectations are not met. To require the Parole Commission to act in accordance with judicial expectations, * * * would substantially undermine the congressional decision to entrust release determinations to the Commission and not the courts.”
*6 Russo v. New York State Board of Parole, 50 N.Y.2d 69, 76-77 (N.Y.1980).
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Graziano v. Pataki, Not Reported in F.Supp.2d (2006)
Due Process Claim Defendants argue that the Board’s denials have not been arbitrary, capricious, or otherwise unlawful, and that there exists no policy to deny parole to violent criminals based solely on the nature or severity of their crimes. They assert that “it is well-established that the Board may deny parole based upon the nature and severity of the underlying crime as long as it has taken the other statutory factors into consideration.” Memo at 20. The Court agrees, but notes here that the allegation in this case is that the other statutory factors are not actually taken into consideration in connection with A-1 felons, and that this occurred and continues under a policy, rather than on an individualized process of decision-making.
Plaintiffs argue that prior courts could not fully address the allegation in this case, which is that the Parole Board is not exercising statutory discretion, but is instead carrying out a policy, or Executive agenda, which calls for the elimination of parole for practically all A-1 violent felons. They argue that reviewing state courts have thus far only considered this type of case on an individual case-by-case basis, and accordingly could not have perceived an illegal policy, as is alleged to exist in this litigation, of denying parole on the singular basis of the violent nature of the crime. Plaintiffs contend that:
With only one parole decision being reviewed per judicial proceeding, the Attorney General was always able to argue, and the courts were always able to accept, that, in the discretionary judgment of the Parole Board, the particular circumstances of the crime in question, as recited in the Board’s decision, had some rational bearing upon whether the prisoner ought to be released at that time. But what becomes obvious when reading dozens of these parole decision at a single sitting, rather than just one at a time, is that there is nothing unique or particularly telling about most of the facts and circumstances that these decisions describe and are based on. The Board is simply describing murders and denying parole-nothing more than that. It becomes obvious, ... that the Board is denying parole to practically every prisoner who is serving time for murder, just because that prisoner committed murder and for no other reason, no matter how well that prisoner may have done in prison and no matter how well he may have prepared himself for a law abiding life on the outside.
Oppo. Memo at 7.
Plaintiffs argue that in this class action the “Court will have the entire picture and that picture makes it abundantly clear that, because of an Executive mandate, the plaintiffs and class members’ “hopes for parole [have been] doomed from the start.” Oppo. Memo at 8, citing Cappiello v. New York State Bd. of Parole, 6 Misc.3d 1010(A), 2004 WL 3112629 at * *6 (N.Y.Sup.). Defendants contend that when a panel finds that the gravity of violence in a particular inmate’s crime outweighs any positive factors, and denies parole on that basis, it reflects a societal desire for enhanced safety, and as a matter of law does not reflect or constitute a prohibited policy to deny parole to A-1 violent felons. Perhaps this is the most likely reality, however, the Court reads the Complaint, in the light most favorable to Plaintiffs, to assert a claim that there is in fact a policy, and under the policy, each Plaintiff’s status as an A-1 violent offender predetermines the outcome of the parole decision, notwithstanding any positive factors, and that this is in violation of New York law. Accordingly, the Complaint pleads facts, the validity or truth of which may not be determined on a Rule 12(b)(6) motion.
*7 Plaintiffs “readily acknowledge that a New York State prisoner does not have a constitutional right to parole release.” Oppo. Memo at 12. They acknowledge also that “New York’s parole scheme gives the Parole Board discretionary authority to grant or deny parole and therefore does not create a legitimate expectancy of release.” Id., citing Barna v. Travis, 239 F.3d 169, 170-171 (2d Cir.2001). However, the Board’s discretionary authority does not amount to unlimited authority, as the Board is required to apply the three standards and consider the five factors set forth in Executive Law § 259-i(2)(c)(a). Plaintiffs argue, and the Court agrees, that even though there is no liberty interest in parole release, there is still a due process liberty interest in “not being denied parole for arbitrary or impermissible reasons” or as the result of “flagrant or unauthorized action,” in derogation of the statute. Oppo. Memo at 12.
In Barna v. Davis, our Court of Appeals held: The New York parole scheme is not one that creates in any prisoner a legitimate expectancy of release. The State statute creates a parole board that has the power and the duty to determine “which inmates serving an indeterminate ... sentence of imprisonment may be released on parole ... and when.” N.Y. Exec. Law § 259-c.1. The board is to establish its own guidelines for making such parole decisions. See id. § 259-c.4. The current parole board guidelines state, in pertinent part, that the purpose of the guidelines is to “structure [the parole board’s] discretion with regard to [minimum-period-of-imprisonment] and release decisions,” that the guidelines “are based on only two major factors-crime severity and past criminal history,” and that “they are intended only as a guide, and are not a substitute for the careful consideration of the many circumstances of each individual case.” 9 N.Y.C.R.R. § 8001.3(a).
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Graziano v. Pataki, Not Reported in F.Supp.2d (2006)
Barna v. Travis, 239 F.3d 169, 171 (2d Cir.2001). The Court also held in that decision that: [I]t is apparent that New York’s parole provisions ... do not establish a scheme whereby parole shall be ordered unless specified conditions are found to exist.... No entitlement to release is created [by the parole provisions]. Accordingly, plaintiffs have no liberty interest in parole, and the protections of the Due Process Clause are inapplicable.
Id. (citations and quotations omitted).
In Barna, the Plaintiffs argued on appeal that the State “systematically denies parole to prisoners who were convicted of crimes of violence.” Barna, 239 F.3d at 170. Although our Court of Appeals clearly held that there is no entitlement or “legitimate expectation of release that is grounded in the state’s statutory scheme,” this Court concludes as a matter of law that there is an entitlement to a process of decision-making, which comports with the statutory guidelines of consideration to all relevant statutory factors. Expressed differently, the Executive Branch, by adopting a policy as alleged, which constricts or alters the intended operation of the statute, if it did so, would violate Plaintiffs’ due process rights. Indeed, Defendants acknowledge that “decisions following Barna have recognized that because the Board is required to consider the guidelines set forth in N.Y. Exec. Law § 259-i(2)(a), an inmate’s due process rights will extend ‘only to a refusal by the Board to deny release arbitrarily or capriciously, based upon inappropriate consideration of a protected classification or an irrational distinction, or on any other unconstitutional grounds.’ “ Memo at 19-20 (citations omitted). Defendants argue, however, that in this case, the parole denials challenged were neither arbitrary, nor capricious, nor otherwise unlawful, and that Plaintiffs’ due process claims must accordingly be dismissed without taking evidence in support of the allegations of an unlawful policy.
*8 Defendants argue that as “as a matter of law, the Board’s determinations in each of the plaintiffs’ parole interviews do not constitute a prohibited policy” and that “this contention has been rejected time and again by both federal and state courts in New York,” which have found that “as long as the Board has properly considered the statutory guidelines, it may determine that parole should be denied based on the nature and severity of the underlying crime and that such determinations do not constitute a policy to deny parole to inmates who have committed violent crimes.” Memo at 22. The Court agrees that where a Board has properly considered statutory guidelines, it may in its proper exercise of discretion deny parole where it determines upon a fair consideration of all relevant statutory factors that the nature and severity of the underlying crime outweigh other possibly positive factors.
In this case, however, Plaintiffs do not simply challenge “the way that the Board exercised its discretion in their particular cases,” but contend that “the Board is not exercising its discretion, at all.” Oppo. Memo at 5. They argue that in other Article 78 and § 1983 proceedings, a plaintiff could challenge only his own adverse parole decision, and such cases were usually decided against the individual Plaintiff, because of the reasoning that the well-settled state law of New York is that a Parole Board’s decision is discretionary, resulting in no due process liberty interest in parole release; that the seriousness of a person’s crime is a valid consideration; and that it was within the Board’s discretion to deny parole release.
If there were proved to exist an unpublished official policy as alleged, imposed upon and implemented by the Board, which dictated the outcome of parole decisions for certain prisoners in contravention of the statutorily required process of determining an individualized outcome, Plaintiffs would have asserted a viable claim. They should be entitled to submit evidence in support of their non-frivolous allegations. Without suggesting that he has done so, the Court can hold with confidence that the Governor would not be permitted to effect a “policy” as an end run around the legislature, in order to accomplish a goal of amending the statutory criteria to deny parole to a class of violent offenders.
Such an end run is precisely what is alleged by the Plaintiffs. The abrupt and steep decline in the grant of parole in A-1 cases (see supra, pages 2-4) is at least circumstantial evidence suggesting that such a policy exists. Although there is no due process right to be granted parole, this Court concludes that there exists a Constitutional right to have a parole decision made in accordance with the statute.
The role of the Parole Board is ... to determine whether, as of this moment, given all the relevant statutory factors, he should be released. In that regard, the statute expressly mandates that the prisoner’s educational and other achievements affirmatively be taken into consideration in determining whether he meets the general criteria relevant to parole release under section 259-i(2)(c).
6

Graziano v. Pataki, Not Reported in F.Supp.2d (2006)
*9 King v. New York State Division of Parole, 190 A.D.2d 423, 432 (N.Y.App.Div.1993). In King, the Appellate Division also held:
[W]hile the courts remain reluctant to second-guess the decisions of the Board, it is unquestionably the duty of the Board to give fair consideration to each of the applicable statutory factors as to every person who comes before it, and where the record convincingly demonstrates that the Board did in fact fail to consider the proper standards, the courts must intervene.
Id. at 431. In that case, the Court held that “the record clearly reveals that the denial of petitioner’s application was a result of the Board’s failure to weigh all of the relevant considerations and there is a strong indication that the denial of petitioner’s application was a foregone conclusion.” Id. at 431-432 (N.Y.App.Div.1993). The same is alleged in the case at bar, and that is all that is needed to defeat a Rule 12(b)(6) motion.
This Court discerns a meaningful distinction in theory between a challenge to the process of determining a parole decision, and a challenge of the actual outcome. While adhering to the Court of Appeals’ holding that prisoners have no liberty interest in being granted parole, so as to invoke the protections of the due process clause, it is nevertheless understood that if, as alleged, there were to exist an “unofficial policy or practice of the Parole Board,” to “unlawfully eliminate or substantially curtail the Parole Board’s discretion concerning prisoners serving sentences for A-1 violent offenses” and to have the Parole Board “deny parole release to such prisoners solely on the basis of the violent nature of their present offenses,” as clearly alleged in the Complaint, that this would constitute a violation of a due process right to have a parole decision made according to the legislatively enacted criteria. See Complaint at ¶ 2. In other words, while there is no due process right to being granted parole, there is a due process right to have the decision made only in accordance with the statutory criteria. Although difficulties of proof of the existence of the alleged policy are readily apparent, the Complaint appears to state a claim for a due process violation, which at the very least would support declaratory or injunctive relief.1 It is unclear that any Plaintiff could ultimately prove, in addition to the existence of the alleged policy, that his resulting parole decision would have been different if it had resulted from a fair and balanced consideration of all factors, including, of course, the violent nature of the offense.
The allegation that there exists a policy or practice to deny parole based solely on the nature of the violent offense, enables the Complaint in this case to transcend what all previous Court decisions have addressed, namely, whether a particular parole denial constituted a violation of one or more Constitutional rights. The Court perceives a distinction inherent in those prior cases, which only challenged the resulting decision, and this Complaint, which challenges the process of reaching a decision.
Equal Protection Claim *10 Plaintiffs contend that they have been denied the benefit of full consideration of all the statutory factors, in contrast to inmates not convicted of A-1 violent crimes. Defendants argue that Plaintiffs cannot state a claim for an equal protection violation and move to dismiss that claim as well. They argue that violent felons are not similarly situated to non-violent felons for purposes of equal protection analysis, and that prisoners or A-1 felons are not a suspect class enabling them to state an equal protection claim. They argue that the Board’s exercise of discretion, including giving more weight to one factor than another in reaching an ultimate decision, is exactly what the statute provides. They point to several decisions of the Eastern and Southern Districts of New York in which the courts decided that the Board may, after considering all of the statutory guidelines, determine that parole should be denied based on the nature and severity of the underlying crimes.
The Court disagrees with Defendants’ assertion that Plaintiffs are not similarly situated to other (non-violent) prisoners eligible for parole, insofar as every prisoner eligible for parole, is subject to, and deserving of fair consideration of each relevant statutory factor. That the resulting decision could quite likely be legitimately different, according to whether someone is an A-1 violent offender or not, does not change the fact that each individual eligible for a parole determination has a right to actual consideration by proper procedure, rather than to a predetermined outcome imposed by an unpublished policy, not adopted by the legislature.
The Court concludes that the same distinction addressed supra in the due process analysis, between challenging the outcome of a parole decision and challenging the process of making a parole decision, applies to the equal protection analysis. An A-1 violent offender who is not similarly situated to a non-A-1 violent offender for purposes of being granted parole, is nevertheless similarly situated to a non-A-1 violent offender for purposes of being considered for parole, according to the statutorily-defined criteria. The violent nature of the offense may obviously be considered, but may not serve to make a
7

Graziano v. Pataki, Not Reported in F.Supp.2d (2006)
denial a foregone conclusion, in contravention of the statutorily-prescribed process of consideration.
Ex Post Facto Claim Defendants argue that a denial of parole does not increase the penalty by which a crime is punishable and doesn’t operate retroactively. Our Court of Appeals has held: [There is no] merit in plaintiffs’ claims that State parole procedures adopted after they were incarcerated violate the Ex Post Facto Clause. That Clause applies only to “legislative action that retroactively ‘punishes as a crime an act previously committed, which was innocent when done,’ ‘makes more burdensome the punishment for a crime, after its commission,’ or ‘deprives one charged with crime of any defense available according to law at the time when the act was committed.” Doe v. Pataki, 120 F.3d 1263, 1272 (2d Cir .1997) (quoting Beazell v. Ohio, 269 U.S. 167, 169-70, 70 L.Ed. 216, 46 S.Ct. 68 (1925)). A law that is merely procedural and does not increase a prisoner’s punishment cannot violate the Ex Post Facto Clause even when applied retrospectively. See California Dep’t of Corrections v. Morales, 514 U.S. 499, 507-09, 131 L.Ed.2d 588, 115 S.Ct. 1597 (1995).
*11 The Ex Post Facto Clause does not apply to guidelines that do not create mandatory rules for release but are promulgated simply to guide the parole board in the exercise of its discretion.
Barna v. Travis, 239 F.3d 169, 171 (2d Cir.2001).
“[W]here parole is concerned[,] discretion, by its very definition, is subject to changes in the manner in which it is informed and then exercised.” Garner v. Jones, 529 U.S. 244 (U .S.2000). In Garner, Georgia’s state board of pardons and paroles amended its rules so that the interval of time between parole considerations was extended to at least every eight years. The Supreme Court concluded that retroactive application of a law, which increased the maximum interval of years within which a petitioner could be reconsidered for parole, did not violate the ex post facto clause because there was no proof that the amendment created a significant risk of increased punishment for respondent. The rule gave the Parole Board broad discretion to schedule reconsideration hearings based on release suitability, and the Supreme Court reversed and remanded the action because there was no proof that the amended law lengthened respondent’s incarceration. The High Court held:
The States are prohibited from enacting an ex post facto law. U .S. Const., Art. I, § 10, cl. 1. One function of the Ex Post Facto Clause is to bar enactments which, by retroactive operation, increase the punishment for a crime after its commission. Retroactive changes in laws governing parole of prisoners, in some instances, may be violative of this precept. Whether retroactive application of a particular change in parole law respects the prohibition on ex post facto legislation is often a question of particular difficulty when the discretion vested in a parole board is taken into account.
Garner, 529 U.S. at 249-250 (citations omitted).
Defendants argue that Plaintiffs do not cite “any instance where an ex post facto violation is founded upon a parole board’s discretionary practice alone, in the absence of any change to governing regulations.” Reply Memo at 12. Here, Plaintiffs’ claim is that the discretionary practice has been materially altered by an outright policy to deny parole to certain prisoners, regardless of positive considerations.
Because under Garner, retroactive application of the policy may increase the punishment for a crime after its commission, the Complaint states a claim, although one of “particular difficulty when the [remaining] discretion vested in the parole board is taken into account.” See Garner, supra.
Failure to Exhaust Administrative Remedies Defendants argue that the Complaint should be dismissed for failure to allege or show that administrative remedies were exhausted. They assert that Plaintiffs’ claims should be brought individually under 28 U.S.C. § 2254, which requires the exhaustion of state remedies. The Court disagrees. Due process and equal protection concerns raised by parole determinations do not necessarily seek to invalidate the underlying conviction or sentence. Indeed such claims may be brought under 42 U.S.C. § 1983, without the exhaustion requirement. See Wilkinson v. Dotson, 544 U.S. 74 (2005).
8

Graziano v. Pataki, Not Reported in F.Supp.2d (2006)
*12 The Court does not read the Complaint to complain literally that the Parole Board resentenced them, but rather that the application of an ultra vires policy of the Parole Board to the Plaintiffs has the effect of “extending their minimum term of imprisonment.” Oppo. Memo at 34-35. The Court’s present concern is whether a claim has been stated that an alleged policy of predetermined parole denials deprived Plaintiffs of a statutorily-required process of parole determination. Exhaustion is not required.
Standing of Individual Plaintiffs In their reply papers, Defendants for the first time challenge Plaintiffs’ standing, arguing that Plaintiffs’ reliance on class allegations and abstract harm prevents the stating of a claim. Defendants assert that in Plaintiffs’ opposition papers, it is clear for the first time that they are not asserting individualized injury based on the specific facts surrounding their specific parole denials, but are relying rather upon a global characterization of unlawful practices of the Parole Board. Defendants argue that Plaintiffs cannot rely upon the class action mechanism to create a cause of action where one does not exist, and that Plaintiffs who do not state actual individualized claims do not have standing to serve as class representatives.
Fairly read, Plaintiffs each assert that an unlawful policy, not a part of the legislative criteria enacted with respect to parole, exists in New York, and was or will be employed in his case, and had or will have the adverse effect of causing him to be denied parole. This non-frivolous allegation is sufficient to establish standing.
Collateral Estoppel Defendants assert that three Plaintiffs (Buckley, Graziano, and Jacques) have previously challenged their parole release denials in state courts on substantially the same bases and facts alleged in this case, and that their challenges have been denied. Plaintiffs respond that the individual Plaintiffs have never had a full and fair opportunity to litigate their allegations in this case, concerning what they claim is the Parole Board’s class-wide policy.
Collateral estoppel is an affirmative defense to be pleaded and proved. Under the general principles of collateral estoppel: [A] judgment in a prior proceeding bars a party and its privies from relitigating an issue if, but only if: (1) the issues in both proceedings are identical, (2) the issue in the prior proceeding was actually litigated and actually decided, (3) there was full and fair opportunity to litigate in the prior proceeding, and (4) the issue previously litigated was necessary to support a valid and final judgment on the merits.
Carney v. Philippone, 332 F.3d 163, 169-170 (2d Cir.2003) (citations omitted).
Collateral estoppel under New York law is not automatic and the Court does not deem a ruling necessary at this stage in the litigation as to the three named Plaintiffs believed by Defendants to be collaterally estopped from litigating their claims. Were one or more individual Plaintiffs to be dismissed from the case, there are apparently ample Plaintiffs who have not previously litigated the claims raised in this case. This Court has already received letters from prisoners interested in the case, and additional cases have been filed as related to this case. For purposes of disposing of this motion, the Court declines to find any Plaintiffs collaterally estopped from being a part of the lawsuit.
Conclusion
*13 The Motion (Doc. Nos.8, 9) is denied.
The Court has received numerous letters from prisoners interested in this case and as noted above, separate cases have been filed pro se by prisoners as “related” to this case. It may well be that this order “involves a controlling question of law as to which there may be substantial ground for difference of opinion” and it is possible that an immediate appeal from the order might materially advance the ultimate termination of the litigation,” which is likely to be lengthy and expensive. The pendency of this litigation of necessity brings confusion to pending cases in the Division of Parole and adds to unrest in the prisons, as shown by the recent pro se filings. On request, the Court will confer with counsel and consider whether it should make the findings contemplated by 28 U.S.C. § 1292(b), and permit an immediate interlocutory appeal. A case management
9

Graziano v. Pataki, Not Reported in F.Supp.2d (2006) conference with the Court is hereby set for July 28, 2006 at 11:00 a.m. SO ORDERED.

Footnotes

1

It seems extremely doubtful that the sudden change in the percentage of parole grants (see text at pages 2-4) standing alone, would

prove the adoption or existence of the claimed policy. There are lies, damn lies and statistics.

10

 
 Graziano v. Pataki, Not Reported in F.Supp.2d (2007)
2007 WL 4302483 Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Peter GRAZIANO, James Buckley, Mark Malone, Robert A. Harris, William Walker, Aaron Talley, Maurice Murrell, Steven Ho, Brian Jacques, and Charles Friedgood, suing on behalf of themselves and all others similarly situated, Plaintiffs, v.
George E. PATAKI, Governor of the State of New York, Robert Dennison, Chairman of the New York State Division of Parole, and the New York State Division of Parole, Defendants.
No. 06 Cv. 480(CLB). | Dec. 5, 2007.
Opinion
Memorandum and Order
BRIEANT, District Judge.
*1 Before this Court is Defendants’ motion to dismiss the amended complaint and Plaintiffs’ cross-motion for class certification. Plaintiffs commenced this purported class action on January 23, 2006, alleging that Defendants unlawfully eliminated or curtailed the Parole Board’s discretion when making parole release determinations for A-1 violent offenders in violation of 42 U.S.C. § 1983. Plaintiffs filed an amended complaint on March 23, 2006. On April 17, 2007, Defendants moved to dismiss the Amended Complaint (Doc. 73). Plaintiffs filed their opposition to the motion to dismiss and a cross-motion for class certification on May 10, 2007 (Doc. 77). Defendants filed a memorandum of law in further support of their motion to dismiss and in opposition to class certification on June 22, 2007 (Doc. 87). Plaintiffs filed their memorandum of law in reply to Defendants’ opposition to their motion for class certification on July 12, 2007 (Doc. 89). Oral argument was held on July 20, 2007.
Defendants’ Motion to Dismiss
In support of their motion to dismiss, Defendants argue that Plaintiffs’ claims are moot now that Governor Pataki and Parole Chairman Robert Dennison have left office. Governor Pataki and Parole Chairman Dennison were both sued in their official capacities only. (Am.Compl.¶¶ 18, 20.) Rule 25 of the Federal Rules of Civil Procedure provide that “[w]hen a public officer is a party to an action in his official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, the action does not abate and the officer’s successor is automatically substituted as a party.” Fed.R.Civ.P. 25(d)(1). The current Governor is Eliot Spitzer and the current Chairman of the New York State Board of Parole is George B. Alexander.
“A case is deemed moot where the problem sought to be remedied has ceased, and where there is ‘no reasonable expectation that the wrong will be repeated.’ “ Prins v. Coughlin, 76 F.3d 504, 506 (2d Cir.1996) (quoting Preiser v. Newkirk, 422 U.S. 395, 402 (1975)). Plaintiffs’ First Amended Complaint alleges that it was “[t]he unofficial policy or practice of the Parole Board, as instigated by Pataki and executed by the Division of Parole under Parole Chairman Robert Dennison, ... to unlawfully eliminate or substantially curtail the Parole Board’s discretion when making parole release determinations concerning prisoners serving sentences for A-1 violent offenses.” (1st Am.Compl.¶ 2.) Thus, the change of office does not necessarily mean that policy or practice of the Parole Board “sought to be remedied has ceased” or that “there is no reasonable expectation that the wrong will be repeated .”
Spomer v. Littleton, 414 U.S. 514 (1974), and Mayor of Philadelphia v. Educational Equality League, 415 U.S. 605 (1974), upon which Defendants rely, do not dictate otherwise. In Spomer, the original defendant, a State’s Attorney, was sued in his
1

Graziano v. Pataki, Not Reported in F.Supp.2d (2007)
personal and official capacities and “[n]o charge [was] made in the complaint that the policy of the office of State’s Attorney [was] to follow the intentional practices alleged.” Spomer, 414 U.S. at 521. In Mayor of Philadelphia, the Supreme Court held that the Court of Appeals for the Third Circuit “erred in ordering prospective injunctive relief against the new Mayor in a case devoted exclusively to the personal appointment policies of his predecessor.” Mayor of Philadelphia, 415 U.S. at 613. In the instant case, Plaintiffs allege that it was the policy of the Parole Board, in concert with the Governor and Parole Chairman, to resist parole release for A-1 violent offenders. Neither Governor Pataki nor Chairman Dennison were sued in their personal capacities and Plaintiffs do not allege that the unlawful policy was solely carried out by former Governor Pataki and former Chairman Dennison.
*2 Defendants’ motion to dismiss is thus denied.
Plaintiffs’ Motion for Class Certification
Plaintiffs have brought a cross-motion to certify “a class comprised of all prisoners in the custody of the New York State Department of Correctional Services who (1) were convicted of A-1 violent felony offenses; (2) have served the minimum terms of their indeterminate sentences and are therefore eligible for parole release; and (3) have had their most recent applications for parole release denied by the Parole Board solely because of the ‘seriousness of the offense’, the ‘nature of the present offense’ “ or similar reasons. (Am.Compl.¶ 3.) All named plaintiffs except Friedgood also seek to represent a subclass of prisoners who meet the qualifications of the main class but who were sentenced to less than the statutory maximum for their violent offenses. (Am.Compl.¶ 4.)
Under Rule 23(a) of the Federal Rules of Civil Procedure, “[o]ne or more members of a class may sue ... as representative parties on behalf of all only if” the following four prerequisites are met: “(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a). Rule 23(b)(2) requires in addition that “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” Fed.R.Civ.P. 23(b)(2).
The court must receive “enough evidence, by affidavits, documents, or testimony, to be satisfied that each Rule 23 requirement has been met.” In re Initial Pub. Offering Sec. Litig ., 471 F.3d 24, 41 (2d Cir.2006). Defendants argue that Plaintiffs have failed to demonstrate the first three requirements for class certification of Rule 23(a), numerosity, commonality, and typicality, and the requirement of Rule 23(b)(2).
Numerosity Defendants argue that Plaintiffs have only speculated about the number of class members. Evidence of the exact number of class members is not required, however, and our Court of Appeals has held that “numerosity is presumed at a level of 40 members.” Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir.1995). In support of their motion for class certification, Plaintiffs submitted a declaration listing 540 prisoners who fit the class definition, 441 of whom are serving less than maximum sentences and thus also fit the definition of the sub-class. (Isseks Declaration Exs. A, B.) This Court finds that these lists are not mere speculation, but contain the names, addresses, and qualifications of more than enough class members to satisfy the numerosity requirement of Rule 23(a)(1) for both the main class and the sub-class.
Commonality *3 Defendants argue that Plaintiffs have not provided admissible evidence “such as affidavits or statistical evidence showing that the individual claims share questions of fact or law with the class claims.... [but][i]nstead, plaintiffs provided only brief case summaries about unidentified individuals.” (Def.’s Opposition Br. 20.) Plaintiffs submitted a declaration listing potential class members’ names, length of incarceration, number of denials of release by the Parole Board, and reasons for denial. (Isseks Declaration Exs. A, B.) According to Plaintiffs’ declaration, the reasons for denial of release were primarily because of the nature of the offense. (Isseks Declaration Exs. A, B.) As Defendants acknowledge, Plaintiffs’ counsel prepared these lists from documents produced by Defendants. (Def.’s Opposition Br. 18.) This Court finds that these exhibits to Plaintiffs’
2

Graziano v. Pataki, Not Reported in F.Supp.2d (2007)
declaration demonstrate that members of the class have in common questions of law and fact including whether the Parole Board’s discretion when making parole release determinations were unlawfully curtailed and, if so, whether the practice violated class members’ rights under Article 1 and the Fourteenth Amendment of the United States Constitution. Thus, the commonality requirement of Rule 23(a)(2) is satisfied for the main class and the sub-class.
Typicality Defendants also argue that Plaintiffs have failed to demonstrate that the claims of the named plaintiffs are typical of the claims of the class. After comparing the parole review history of the named plaintiffs as described in Plaintiffs’ First Amended Complaint and of the proposed class members as described in Exhibits A and B to the declaration of Plaintiffs’ counsel, this Court finds that the typicality requirement of Rule 23(a)(3) is satisfied because the named plaintiffs, except for Charles Friedgood, and the proposed class and sub-class members were all denied release based on the nature of their offense or similar reasons.
Plaintiff Charles Friedgood is excepted because the Parole Board voted on November 7, 2007 to release him, so he no longer satisfies the third requirement of the class definition, having had his most recent application for parole release denied by the Parole Board.
Adequacy of Representation Defendants do not seem to dispute the adequacy of Plaintiffs’ representation of the proposed class. This Court finds no reason why the named plaintiffs will not fairly and adequately protect the interests of the class and sub-class.
Rule 23(b) (2) Requirement Under Rule 23(b)(2), “the party opposing the class [must have] acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” Fed.R.Civ.P. 23(b)(2). Defendants’ final argument against class certification is that there are “substantial differences among the issues to be resolved for the individual inmates,” making class certification inappropriate under Rule 23(b) (2). Contrary to Defendants’ contention, this Court finds that Defendants are alleged to have carried out a policy of denial of parole release to the class of A-1 violent felons as a whole. Assuming the allegations in the First Amended Complaint are true, final injunctive or declaratory relief preventing Defendants from continuing this policy would be appropriate. Rule 23(b)(2) is therefore satisfied.
*4 For all the foregoing reasons, Plaintiffs’ motion for class certification is granted.
Although Plaintiffs have not explicitly moved for an order certifying their counsel as class counsel, their memorandum of law in support of their motion for class certification discusses their qualifications to represent the proposed class. (See Plaintiffs’ Br. 18.) In their opposition, Defendants did not take issue with the qualifications of Plaintiffs’ counsel. This Court finds that Plaintiffs’ counsel, Robert N. Isseks, Alex Smith, and Peter A. Sell, are qualified to represent the class and the Court hereby appoints them as class counsel.
A status conference of counsel with the Court will be held on December 20, 2007 at 9:00 A.M., at which time counsel is directed to serve and present for signature an order to provide notice to the class.
SO ORDERED.
3

 
 Case: 7:06-cv-480 As of: 06/07/2013 02:29 PM EDT 1 of 18
U.S. District Court Southern District of New York (White Plains) CIVIL DOCKET FOR CASE #: 7:06−cv−00480−CS

CLOSED, ECF

Graziano et al v. Pataki et al Assigned to: Judge Cathy Seibel Related Cases: 7:06−cv−03664−CLB
7:06−cv−05132−CLB 7:07−cv−11569−CLB Cause: 42:1983 Prisoner Civil Rights Plaintiff Peter Graziano suing on behalf of himself and all others similary situated
Plaintiff James Buckley suing on behalf of himself and all others similary situated
Plaintiff Mark Malone suing on behalf of himself and all others similary situated
Plaintiff Robert A. Harris suing on behalf of himself and all others similary situated
Plaintiff William Walker suing on behalf of himself and all others similary situated
Plaintiff Aaron Talley suing on behalf of himself and all others similary situated
Plaintiff Maurice Murrell suing on behalf of himself and all others similary situated

Date Filed: 01/23/2006 Date Terminated: 12/16/2010 Jury Demand: None Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question
represented by Robert Nathan Isseks Robert N. Isseks 6 North Street Middletown, NY 10940 (845) 344−4322 Fax: (845) 341−1760 Email: isseks@frontiernet.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Robert Nathan Isseks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Robert Nathan Isseks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Robert Nathan Isseks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Robert Nathan Isseks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Robert Nathan Isseks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Robert Nathan Isseks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 7:06-cv-480 As of: 06/07/2013 02:29 PM EDT 2 of 18

Plaintiff Steven Ho
Plaintiff Brian Jacques suing on behalf of himself and all others similary situated
Plaintiff Charles Friedgood suing on behald of himself and all others similarly situated.

represented by Robert Nathan Isseks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Robert Nathan Isseks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Robert Nathan Isseks (See above for address) ATTORNEY TO BE NOTICED

V.
Movant
Wamel Allah #77−B−0684 PO BOX 500 Elmira Correctional Facility Elmira, NY 14902

V. Defendant George E. Pataki Governor of the State of New York
Defendant

represented by Neil Shevlin New York State Office of the Attorney General 120 Broadway New York, NY 10271 (212) 416−8561 Fax: (212) 416−6009 Email: Neil.Shevlin@ag.ny.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Lynn Johnson New York State Office of the Attorney General (NYC) 120 Broadway 24th Floor New York, NY 10271 (212)−416−6211 Fax: (212)−416−6075 Email: jennifer.johnson@oag.state.ny.us ATTORNEY TO BE NOTICED
Julinda A. Dawkins New York State Office of the Attorney General (NYC) 120 Broadway 24th Floor New York, NY 10271 (212) 416−8118 Email: Julinda.Dawkins@ag.ny.gov ATTORNEY TO BE NOTICED

Case: 7:06-cv-480 As of: 06/07/2013 02:29 PM EDT 3 of 18

Robert Dennison Chairman of the New York State Division of Parole

represented by Neil Shevlin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer Lynn Johnson (See above for address) ATTORNEY TO BE NOTICED

Julinda A. Dawkins (See above for address) ATTORNEY TO BE NOTICED

Defendant The New York State Division of Parole

represented by Neil Shevlin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer Lynn Johnson (See above for address) ATTORNEY TO BE NOTICED

Julinda A. Dawkins (See above for address) ATTORNEY TO BE NOTICED

Date Filed 01/23/2006
01/23/2006 01/23/2006 01/23/2006 01/31/2006
02/06/2006
03/06/2006 03/08/2006
03/23/2006

# Docket Text
1 COMPLAINT against George E. Pataki, Robert Dennison, The New York State Division of Parole. (Filing Fee $ 250.00, Receipt Number 561000)Document filed by William Walker, Aaron Talley, Maurice Murrell, Steven Ho, Brian Jacques, Peter Graziano, James Buckley, Mark Malone, Robert A. Harris. (Attachments: # 1 Exhibit A)(tb, ) (Entered: 01/23/2006)
SUMMONS ISSUED as to George E. Pataki, Robert Dennison, The New York State Division of Parole. (tb, ) (Entered: 01/23/2006)
Case Designated ECF. (tb, ) (Entered: 01/23/2006)
Magistrate Judge Lisa M. Smith is so designated. (tb, ) (Entered: 01/23/2006)
2 WAIVER OF SERVICE RETURNED EXECUTED. George E. Pataki waiver sent on 1/27/2006, answer due 3/28/2006. Document filed by William Walker; Aaron Talley; Maurice Murrell; Steven Ho; Brian Jacques; Peter Graziano; James Buckley; Mark Malone; Robert A. Harris. (Isseks, Robert) (Entered: 01/31/2006)
3 WAIVER OF SERVICE RETURNED EXECUTED. Robert Dennison waiver sent on 1/30/2006, answer due 3/31/2006; The New York State Division of Parole waiver sent on 1/30/2006, answer due 3/31/2006. Document filed by William Walker; Aaron Talley; Maurice Murrell; Steven Ho; Brian Jacques; Peter Graziano; James Buckley; Mark Malone; Robert A. Harris. (Isseks, Robert) (Entered: 02/06/2006)
Minute Entry for proceedings held before Judge Charles L. Brieant : Initial Pretrial Conference held on 3/3/2006. File motion returnable 04/28/2006. See transcript. Submitted by Alice Cama, Deputy Court Clerk. (jma,) (Entered: 03/07/2006)
4 LETTER addressed to Judge Charles L. Brieant from Robert Isseks dated 3/6/06 re: Reasons why a Class Action is necessary. Document filed by William Walker, Aaron Talley, Maurice Murrell, Steven Ho, Brian Jacques, Peter Graziano, James Buckley, Mark Malone, Robert A. Harris.(fk, ) (Entered: 03/09/2006)
5 FIRST AMENDED COMPLAINT amending 1 Complaint, against Aaron Talley, Robert Dennison, The New York State Division of Parole.Document filed by Charles Friedgood. Related document: 1 Complaint, filed by James Buckley,, Mark

Case: 7:06-cv-480 As of: 06/07/2013 02:29 PM EDT 4 of 18

04/04/2006 04/19/2006 04/28/2006 04/28/2006 04/28/2006
05/02/2006 05/25/2006 05/25/2006
06/09/2006 06/16/2006

Malone,, Steven Ho,, Peter Graziano,, William Walker,, Aaron Talley,, Robert A. Harris,, Maurice Murrell,, Brian Jacques,. (Attachments: # 1)(jma, ) (Entered: 03/27/2006)
6 ENDORSED LETTER addressed to Judge Charles L. Brieant from Robert Isseks dated 3/16/06 re: Filing an Amended Complaint. Endorsement: Application to file Amended Complaint is granted. So Ordered. (Signed by Judge Charles L. Brieant on 3/20/06) (fk, ) (Entered: 04/06/2006)
7 LETTER addressed to Your Honor from Jennifer L. Johnson dated 4/17/2006 re: request one−week extension...request that they may file and serve motion on 4/28/2006... Document filed by George E. Pataki, Robert Dennison, The New York State Division of Parole.(mde, ) . (Entered: 04/19/2006)
8 FIRST MOTION to Dismiss the Amended Complaint. Document filed by George E. Pataki, Robert Dennison, The New York State Division of Parole. Responses due by 4/28/2006 (Shevlin, Neil) (Entered: 04/28/2006)
9 NOTICE of Motion to Dismiss. Document filed by George E. Pataki, Robert Dennison, The New York State Division of Parole. (Shevlin, Neil) (Entered: 04/28/2006)
10 DECLARATION of Jennifer L. Johnson in Support re: 8 FIRST MOTION to Dismiss the Amended Complaint.. Document filed by George E. Pataki, Robert Dennison, The New York State Division of Parole. (Attachments: # 1 Exhibit Buckley Transcript# 2 Exhibit Buckley Disposition and Petition# 3 Exhibit Talley Transcript# 4 Exhibit Graziano Transcript# 5 Exhibit Graziano Disposition and Petition# 6 Exhibit Malone Transcript# 7 Exhibit Harris Transcript# 8 Exhibit Walker Transcript# 9 Exhibit Walker Petition# 10 Exhibit Murrell Transcript# 11 Exhibit Ho Transcript# 12 Exhibit Jacques Transcript# 13 Exhibit Jacques Disposition and Petition# 14 Exhibit Friedgood Transcript# 15 Exhibit Friedgood Petition)(Shevlin, Neil) (Entered: 04/28/2006)
11 ENDORSED LETTER addressed to Judge Charles L. Brieant from Robert N. Isseks dated 5/1/2006 re: two−week extension of time...ENDORSED: Application Granted. Oral argument will be heard on 6/16/2006 at 10:00 a.m. SO ORDERED: (Signed by Judge Stephen C. Robinson on 5/2/2006) "The Clerk's Office Has Mailed Copies".(mde, ) (Entered: 05/03/2006)
12 MEMORANDUM OF LAW in Opposition re: 8 FIRST MOTION to Dismiss the Amended Complaint.. Document filed by William Walker, Aaron Talley, Maurice Murrell, Steven Ho, Brian Jacques, Peter Graziano, Charles Friedgood, James Buckley, Mark Malone, Robert A. Harris. (Isseks, Robert) (Entered: 05/25/2006)
13 DECLARATION of Robert N. Isseks in Opposition re: 8 FIRST MOTION to Dismiss the Amended Complaint.. Document filed by William Walker, Aaron Talley, Maurice Murrell, Steven Ho, Brian Jacques, Peter Graziano, Charles Friedgood, James Buckley, Mark Malone, Robert A. Harris. (Attachments: # 1 Exhibit 01−24−06 NYLJ# 2 Exhibit Less Than Maximum Parole Denials 1# 3 Exhibit Less Than Maximum Parole Denials 2# 4 Exhibit Less Than Maximum Parole Denials 3# 5 Exhibit Maximum Parole Denials# 6 Exhibit Alvaro Sanchez# 7 Exhibit Isabel Torres# 8 Exhibit Andrea Williams# 9 Exhibit Cornell Alston# 10 Exhibit Charles Friedgood# 11 Exhibit Ricky Pender# 12 Exhibit Johnny Rivera# 13 Exhibit Derrick Newton# 14 Exhibit Joan Lambert# 15 Exhibit John Legette# 16 Exhibit Jose Diaz# 17 Exhibit 01−31−06 NYLJ# 18 Exhibit NYS Grant Application# 19 Exhibit Kelly Letter# 20 Exhibit The Deuce Club# 21 Exhibit Unpublished Decisions)(Isseks, Robert) (Entered: 05/25/2006)
14 REPLY MEMORANDUM OF LAW in Support re: 8 FIRST MOTION to Dismiss the Amended Complaint. Reply Memorandum of Law. Document filed by George E. Pataki, Robert Dennison, The New York State Division of Parole. (Shevlin, Neil) (Entered: 06/09/2006)
Minute Entry for proceedings held before Judge Charles L. Brieant : Oral Argument held on 6/16/2006 re: 9 Notice (Other) filed by Robert Dennison,, The New York State Division of Parole,, George E. Pataki,, 8 FIRST MOTION to Dismiss the Amended Complaint. filed by Robert Dennison,, The New York State

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07/05/2006 07/05/2006 07/17/2006
07/26/2006
07/31/2006 08/11/2006 08/18/2006 09/08/2006 09/08/2006 09/08/2006 09/08/2006
09/08/2006 09/08/2006 09/08/2006 09/08/2006 09/08/2006 09/08/2006

Division of Parole,, George E. Pataki. Judge's Decision: Oral argument heard on defendant's motion to dismiss (Dkt#7/#9). Motion is now fully submitted decision reserved. See Transcript. Submitted By: Alice Cama, Deputy Court Clerk. (Court Reporter Christina) (dcr, ) (Entered: 06/19/2006)
15 LETTER addressed to Judge Charles L. Brieant from Gerald Balone dated 6/24/06 re: Parole Board Practices. (fk, ) (Entered: 07/06/2006)
16 LETTER addressed to Judge Charles L. Brieant from Neil Shevlin dated 6/27/06 re: Notification that the deft's do not wish to withdraw their motion to dismiss the amended complaint.. (fk, ) (Entered: 07/06/2006)
17 MEMORANDUM AND ORDER denying 8 Motion to Dismiss...the motion is denied....A case management conference with the Court is hereby set for 7/28/06 at 11:00 am. So Ordered. (Signed by Judge Charles L. Brieant on 7/17/06) (fk, ) (Entered: 07/18/2006)
18 LETTER addressed to Honorable Charles L. Brieant from Alfred Moncuto dated 07/23/2006 re: I am a 73−year old inmate at Colline Correctional facility who has been convicted and imprisioned for a murder I did not commit...... (jma, ) (Entered: 07/27/2006)
19 NOTICE OF APPEARANCE by Jennifer Lynn Johnson on behalf of George E. Pataki, Robert Dennison, The New York State Division of Parole (Johnson, Jennifer) (Entered: 07/31/2006)
20 TRANSCRIPT of proceedings held on 6/16/2006 before Judge Charles L. Brieant. Court Reporter: Christina M. Arends−Dieck. (cg, ) (Entered: 08/11/2006)
21 ANSWER to Complaint. Document filed by George E. Pataki, Robert Dennison, The New York State Division of Parole.(Johnson, Jennifer) (Entered: 08/18/2006)
22 LETTER addressed to Judge Charles L. Brieant from Lawrence Strouse dated 7/27/2006 re: Memorandum and order.. (cg, ) (Entered: 09/08/2006)
23 LETTER addressed to Judge Charles L. Brieant from James Spearman dated 8/21/2006 re: Factors and actual outcome of his parole.. (cg, ) (Entered: 09/08/2006)
24 LETTER addressed to Judge Charles L. Brieant from Michael T. Murphey dated 7/29/2006 re: Complaint Governor Pataki's policy of repeatedly denying parole applications.... (cg, ) (Entered: 09/08/2006)
25 LETTER addressed to Judge Charles L. Brieant from Gerald T. Balone, MCH, MPS #74CO264 dated July 30, 2006 re: Thanking court for allowin prisoners across the state of NY serving life sentences an opportunity to be hear on the above metioned class action. Prays that he will be allowed to appear in the courtroom to tell his story of misconduct by parole officials.. (ll, ) (Entered: 09/08/2006)
26 LETTER addressed to Judge Charles L. Brieant from Savanah Moore dated 8/1/2006 re: Class Action lawsuit against New York State Parole Board Policy. (cg, ) (Entered: 09/08/2006)
27 LETTER addressed to Hon. Charles L. Brieant from Joseph Ponder 96B0640 re: He's hoping to become part of the 1983 lawsuit. (ll, ) (Entered: 09/08/2006)
28 LETTER addressed to Judge Charles L. Brieant from Billy taylor dated 8/21/2006 re: Request for assistance for Parole Baord.. (cg, ) (Entered: 09/08/2006)
29 LETTER addressed to Judge Charles L. Brieant from Cedric Partee dated 8/14/2006 re: Request for good time credit.. (cg, ) (Entered: 09/08/2006)
30 LETTER addressed to Judge Charles L. Brieant from Carlos A. Bailey Parks dated 8/13/2006 re: Request for a Parole Revocation Hearing.. (cg, ) (Entered: 09/08/2006)
31 LETTER addressed to Honorable Charles L. Brieant from Terry Losicco 81B1188 dated July 29, 2006 re: Thanking the Judge for standing firmly on what the US Constitution truly means. (ll, ) (Entered: 09/08/2006)

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09/08/2006 09/08/2006 09/08/2006 09/08/2006 09/08/2006 09/08/2006 09/08/2006 09/08/2006 09/08/2006 09/08/2006 09/08/2006 09/08/2006 09/08/2006 09/13/2006
09/15/2006
09/21/2006 09/21/2006 09/26/2006 10/06/2006

32 LETTER addressed to Judge Charles L. Brieant from Richard M. Salvatierra dated 7/30/2006 re: Request to file a 42 U.S.C. 1983 with this court.. (cg, ) (Entered: 09/08/2006)
33 LETTER addressed to Hon. Charles L. Brieant from John MacKenzie dated July 30, 2006 re: If the present policy is allowed to remain in effect, any appeal would be an exercise in futility. (ll, ) (Entered: 09/08/2006)
34 LETTER addressed to Judge Charles L. Brieant from Jeffrey Williams dated 7/26/2006 re: 2nd Parole board hearing and satifactory disciplinary record. (cg, ) (Entered: 09/08/2006)
35 LETTER addressed to Judge Charles L. Brieant from Lynn Rudolph dated 7/27/2006 re: Thank You for not dismissing Graziano V. Pataki.. (cg, ) (Entered: 09/08/2006)
36 LETTER addressed to Honorable Justice Brieant from Nicholas T. Marchese dated July 28, 2006 re: Asking to become part of the Class Action. (ll, ) (Entered: 09/08/2006)
37 LETTER addressed to Judge Charles L. Brieant from Dolores V. Higgins dated 9/7/2006 re: denying motion to dismiss Class Action Lawsuit. (cg, ) (Entered: 09/08/2006)
38 LETTER addressed to Judge Charles L. Brieant from Kain Melendez #94A2035 re: He wanted to thank the Judge for his decision not dismissing the charges against Patakis administration for the Parole Board. (ll, ) (Entered: 09/08/2006)
39 LETTER addressed to Judge Charles L. Brieant from Ralph Scott dated 7/31/2006 re: Recent decision in Graziano v. Pataki.. (cg, ) (Entered: 09/08/2006)
40 LETTER addressed to Judge Charles L. Brieant from Felipe Rosario dated 8/7/2006 re: The suit against the Parole Board.. (cg, ) (Entered: 09/11/2006)
41 LETTER addressed to Judge Charles L. Brieant from Patrick A. Campbell dated 8/3/2006 re: Thank you for standing up justice.. (cg, ) (Entered: 09/11/2006)
42 LETTER addressed to Judge Charles L. Brieant from Alvaro A. Sanchez Jr. dated 8/1/2006 re: Essay I wrote after I denied his second parole board appearence.. (cg, ) (Entered: 09/11/2006)
43 LETTER addressed to Judge Charles L. Brieant from Lawrence Saunders M.P.S. dated 8/4/2006 re: Thank you for having the courage and non political bias to render your progressive 24 page decision.. (cg, ) (Entered: 09/11/2006)
44 LETTER addressed to Judge Charles L. Brieant from Ernest Henry dated 8/4/2006 re: The unfairness currently governing the parole board.. (cg, ) (Entered: 09/11/2006)
45 LETTER addressed to Judge Charles L. Brieant from Jennifer Johnson dated 9/12/06 re: Request for adjournment of conference currently set for 9/14/06 to 10/5/06. Document filed by George E. Pataki, Robert Dennison, The New York State Division of Parole.(fk, ) (Entered: 09/15/2006)
46 LETTER addressed to Robert N. Isseks &Peter A. Sell from Jennifer L. Johnson dated 7/31/2006 re: Confirming Representation made by Mr. Isseks in the presence of Judge Brieant.... Representation will not object to the answer being filed on or before August 18,2006.(cg, ) (Entered: 09/18/2006)
47 LETTER addressed to Judge Charles L. Brieant from Michael Lemonies re: Request for assistance.... (cg, ) (Entered: 09/21/2006)
48 LETTER addressed to Robert N. Isseks &Peter A. Sell from Jennifer L. Johnson dated 9/18/2006 re: Discovery Conference.... (cg, ) (Entered: 09/21/2006)
49 LETTER addressed to Judge Brieant from Joseph Leino dated 09/21/06 re: The Graziano v Pataki Class Action. (dcr, ) (Entered: 09/26/2006)
Minute Entry for proceedings held before Judge Charles L. Brieant : Status Conference held on 10/6/2006. Status Conference − November 16, 2006, 4:00 pm.

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10/10/2006 10/10/2006 10/10/2006 10/16/2006 10/19/2006 10/30/2006 11/03/2006 11/03/2006 11/03/2006 11/06/2006 11/13/2006
11/14/2006 11/14/2006
11/14/2006 12/27/2006
12/28/2006

Submitted By: Alice Cama, Courtroom Deputy. (Court Reporter Angela) (dcr, ) (Entered: 10/06/2006)
50 LETTER addressed to Judge Charles L. Brieant from Waki Millings dated 10/2/2006 re: Applaud your reasoning and ultimate decision in regards to the matter in this case.... (cg, ) (Entered: 10/10/2006)
51 LETTER addressed to Judge Charles L. Brieant from Alfred Mancuso dated 10/4/2006 re: previous letter dated 7/23/2006.... (mde, ) (Entered: 10/10/2006)
52 LETTER addressed to Judge Charles L. Brieant from Derek Campbell dated 10/8/2006 re: Request to be included in this class action.. (cg, ) (Entered: 10/11/2006)
53 LETTER addressed to Judge Charles L. Brieant from George Harris dated 10/11/2006 re: Request to be a member of the class action.... (cg, ) (Entered: 10/16/2006)
54 LETTER addressed to Judge Charles L. Brieant from John W. Stroh dated 10/16/2006 re: Parole Commissioners Illegal &Unethical Practices... (mde, ) (Entered: 10/20/2006)
55 LETTER addressed to Judge Charles L. Brieant from Joseph Vanier dated 10/25/2006 re: Graziano v. Pataki, parole class action. (mde, ) (Entered: 11/01/2006)
56 LETTER addressed to Dear Sirs from Waki Milling dated 8/31/2006 re: I would like to be added to the above referenced case...(mde, ) (Entered: 11/06/2006)
57 LETTER addressed to Judge Charles L. Brieant from Frank Di Chiara dated 7/27/2006 re: What course of action I need to join the above Class Action... (mde, ) (Entered: 11/06/2006)
58 LETTER addressed to Dear Court Clerk from Joseph Navedo dated 8/12/2006 re: Please place my name as an interested party... (mde, ) (Entered: 11/06/2006)
59 STIPULATION AND PROTECTIVE ORDER...So Ordered. (Signed by Judge Charles L. Brieant on 11/3/06) (fk, ) Additional attachment(s) added on 11/8/2006 (gco, ). (Entered: 11/08/2006)
62 LETTER addressed to Judge Charles L. Brieant from Joseph Vanier dated 10/19/2006 re: I believe that I may be a Plaintiff in the Graziano v. Pataki litigation... (mde, ) Additional attachment(s) added on 12/1/2006 (mde, ). (Entered: 11/20/2006)
60 LETTER addressed to Dear Bob from Neil Shevlin dated 11/14/2006 re: Status Conference adjourned... Document filed by George E. Pataki, Robert Dennison, The New York State Division of Parole.(mde, ) (Entered: 11/15/2006)
61 ENDORSED LETTER addressed to Hon. Charles L. Brieant from Neil Shevlin dated 11/14/2006 re: request an adjournment of the status conference scheduled for this Thursday, November 16, 2006 at 4:00pm.......ENDORSED, Application Granted − Adjourned to 12/14/2006 at 3:00pm. So Ordered. White Plains, NY. (Signed by Judge Charles L. Brieant on 11/14/2006) (jma, ) (Entered: 11/15/2006)
Set Deadlines/Hearings: Status Conference set for 12/14/2006 03:00 PM before Judge Charles L. Brieant. (jma, ) (Entered: 11/15/2006)
63 LETTER addressed to Dear Ms. Johnson and Mr. Shevlin from Robert N. Isseks dated 12/26/2006 re: request consent to amend the caption... Document filed by William Walker, Aaron Talley, Maurice Murrell, Steven Ho, Brian Jacques, Peter Graziano, Charles Friedgood, James Buckley, Mark Malone, Robert A. Harris.(mde, ) (Entered: 12/28/2006)
64 LETTER addressed to Judge Charles L. Brieant from Robert Isseks dated 12/26/2006 re: Proposal an outline of a settlement of this case...... (cg, ) (Entered: 12/29/2006)

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01/09/2007 01/10/2007 01/29/2007 01/31/2007 02/09/2007
02/09/2007 02/21/2007 03/23/2007 04/10/2007 04/17/2007 04/17/2007 04/17/2007 05/07/2007

65 LETTER addressed to Dear Judge Brieant from Gerald T. Balone dated 01/07/2007 re: On December 8, 2006, the New York Law Journal published oan article by John Caher, dealing with sentencing minutes....... (jma, ) (Entered: 01/10/2007)
66 ENDORSED LETTER addressed to Dear Sir/Madam from Peter K. Debo dated 01/03/2007 re: permission to become a later party to that action.......ENDORSED, No more parties are being added to this class action. SO ORDERED.. (Signed by Judge Charles L. Brieant on 01/10/2007) "Copies Mailed By Chambers".(jma, ) (Entered: 01/11/2007)
67 LETTER addressed to Your Honor from Jennifer L. Johnson dated 1/23/2007 re: request that discovery conference be rescheduled.... Document filed by George E. Pataki, Robert Dennison, The New York State Division of Parole.(mde) (Entered: 01/29/2007)
68 LETTER addressed to Robert N. Isseks, Esq. from Jennifer L. Johnson dated 01/25/2007 re: At the Court's instruction, this letter informs you that the discovery conference initially scheduled for January 26, 2007 has been rescheduled for February 9, 2007 at 11:00am...... Document filed by George E. Pataki.(jma) (Entered: 02/01/2007)
69 LETTER addressed to Judge Brieant from Robert N. Isseks dated 02/06/07 re: Adjournment of the conference scheduled for Friday, February 23, 2007, in lieu of settlement discussions.. Document filed by William Walker, Aaron Talley, Maurice Murrell, Steven Ho, Brian Jacques, George E. Pataki, Robert Dennison, The New York State Division of Parole, Peter Graziano, Charles Friedgood, James Buckley, Mark Malone, Robert A. Harris.(dcr) (Entered: 02/09/2007)
70 LETTER addressed to Hon. Charles L. Brieant from Timothy Williams dated 02/03/2007 re:.......I have been to Parole Board Four (4) time and was deny, based upon the Nature of offense.....I have completed all the program that are require and more...... (jma) Additional attachment(s) added on 2/13/2007 (Martinez, Johnny). (Entered: 02/13/2007)
71 LETTER addressed to Your Honor from Jennifer Lynn Johnson dated 1/20/2007 re: request to reschedule discovery conference... Document filed by George E. Pataki, Robert Dennison, The New York State Division of Parole.(mde) (Entered: 02/22/2007)
Minute Entryfor proceedings held before Judge Charles L. Brieant : Status Conference held on 3/23/2007. The parties are to inform the Court of their agreement re: mediation by 4/6/07. A status conference is scheduled for 5/25/2007 at 11:00. (Court Reporter Angela O' Donnell) (jma) (Entered: 03/28/2007)
72 LETTER addressed to Your Honor from Jennifer L. Johnson dated 4/6/2007 re: defendants inform the Court and Plaintiffs' counsel that they cannot, at this time, proceed with mediation regarding settlement.... Document filed by George E. Pataki, Robert Dennison, The New York State Division of Parole.(mde) (Entered: 04/13/2007)
73 SECOND MOTION to Dismiss the Amended Complaint. Document filed by George E. Pataki, Robert Dennison, The New York State Division of Parole.Responses due by 5/1/2007,Return Date set for 5/15/2007 11:00 AM.(Johnson, Jennifer) (Entered: 04/17/2007)
74 MEMORANDUM OF LAW in Support re: 73 SECOND MOTION to Dismiss the Amended Complaint.. Document filed by George E. Pataki, Robert Dennison, The New York State Division of Parole. (Johnson, Jennifer) (Entered: 04/17/2007)
75 DECLARATION of Jennifer L. Johnson in Support re: 73 SECOND MOTION to Dismiss the Amended Complaint.. Document filed by George E. Pataki, Robert Dennison, The New York State Division of Parole. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Johnson, Jennifer) (Entered: 04/17/2007)
76 LETTER addressed to Judge Brieant from Robert N. Isseks dated 05/01/07 re: Request that the Court set June 22, 2007, at 11:00 am as the return date for defendant's pending Motion to dismiss and Plaintiff's anticipated Motion for Class Certification.. Document filed by William Walker, Aaron Talley, Maurice Murrell,

Case: 7:06-cv-480 As of: 06/07/2013 02:29 PM EDT 9 of 18

05/10/2007 05/10/2007 05/10/2007 05/10/2007
05/10/2007
05/22/2007 05/30/2007 06/18/2007 06/20/2007 06/22/2007 06/22/2007

Steven Ho, Brian Jacques, Peter Graziano, Charles Friedgood, James Buckley, Mark Malone, Robert A. Harris.(dcr) (Entered: 05/07/2007)
77 CROSS MOTION to Certify Class. Document filed by William Walker, Aaron Talley, Maurice Murrell, Steven Ho, Brian Jacques, Peter Graziano, Charles Friedgood, James Buckley, Mark Malone, Robert A. Harris.Return Date set for 6/22/2007 11:00 AM.(Isseks, Robert) (Entered: 05/10/2007)
78 MEMORANDUM OF LAW in Opposition re: 73 SECOND MOTION to Dismiss the Amended Complaint.. Document filed by William Walker, Aaron Talley, Maurice Murrell, Steven Ho, Brian Jacques, Peter Graziano, Charles Friedgood, James Buckley, Mark Malone, Robert A. Harris. (Isseks, Robert) (Entered: 05/10/2007)
79 MEMORANDUM OF LAW in Support re: 77 CROSS MOTION to Certify Class.. Document filed by William Walker, Aaron Talley, Maurice Murrell, Steven Ho, Brian Jacques, Peter Graziano, Charles Friedgood, James Buckley, Mark Malone, Robert A. Harris. (Isseks, Robert) (Entered: 05/10/2007)
80 DECLARATION of Robert N. Isseks in Opposition re: 73 SECOND MOTION to Dismiss the Amended Complaint.. Document filed by William Walker, Aaron Talley, Maurice Murrell, Steven Ho, Brian Jacques, Peter Graziano, Charles Friedgood, James Buckley, Mark Malone, Robert A. Harris. (Attachments: # 1 Exhibit Exhibit A# 2 Exhibit Exhibit B# 3 Exhibit Exhibit C# 4 Exhibit Exhibit D# 5 Exhibit Exhibit E# 6 Exhibit Exhibit F# 7 Exhibit Exhibit G# 8 Exhibit Exhibit H# 9 Exhibit Exhibit I# 10 Exhibit Exhibit J# 11 Exhibit Exhibit K)(Isseks, Robert) (Entered: 05/10/2007)
81 DECLARATION of Robert N. Isseks in Support re: 77 CROSS MOTION to Certify Class.. Document filed by William Walker, Aaron Talley, Maurice Murrell, Steven Ho, Brian Jacques, Peter Graziano, Charles Friedgood, James Buckley, Mark Malone, Robert A. Harris. (Attachments: # 1 Exhibit Exhibit A# 2 Exhibit Exhibit B# 3 Exhibit Exhibit C# 4 Exhibit Exhibit D# 5 Exhibit Exhibit E# 6 Exhibit Exhibit F# 7 Exhibit Exhibit G# 8 Exhibit Exhibit H# 9 Exhibit Exhibit I# 10 Exhibit Exhibit J# 11 Exhibit Exhibit K)(Isseks, Robert) (Entered: 05/10/2007)
82 LETTER addressed to Your Honor from Neil Shevlin dated 5/21/2007 re: request that the Conference scheduled for this Friday, 5/25/2007, at 11:00 a.m., be rescheduled... Document filed by George E. Pataki, Robert Dennison, The New York State Division of Parole.(mde) (Entered: 05/23/2007)
83 LETTER addressed to Dear Mr. Isseks from Susan H. Odessky dated 5/24/2007 re: conference scheduled for 5/25/2007, has been adjourned.... Document filed by George E. Pataki, Robert Dennison, The New York State Division of Parole.(mde) (Entered: 05/31/2007)
84 LETTER addressed to Hon. Charles L. Brieant from Neil Shevlin dated 06/13/2007 re:...I write, respectfully to request an adjournment of the return date of deft's. motion to dismiss and plaintiff's cross−motion for class certification....... Document filed by George E. Pataki, Robert Dennison, The New York State Division of Parole.(jma) (Entered: 06/18/2007)
85 LETTER addressed to Robert N. Isseks, Esq. from Neil Shevlin dated 06/18/2007 re:...Please be advise that Judge Brieant has granted def't's. request to adjourn the return date on their motion to dismiss and plaintiff's cross−motion for class certification from June 22, 2007, to July 20, 2007 at 10:00am..... Document filed by George E. Pataki, Robert Dennison, The New York State Division of Parole.(jma) (Entered: 06/21/2007)
86 DECLARATION of Neil Shevlin in Support re: 73 SECOND MOTION to Dismiss the Amended Complaint.. Document filed by George E. Pataki, Robert Dennison, The New York State Division of Parole. (Shevlin, Neil) (Entered: 06/22/2007)
87 REPLY MEMORANDUM OF LAW in Support re: 73 SECOND MOTION to Dismiss the Amended Complaint.. Document filed by George E. Pataki, Robert Dennison, The New York State Division of Parole. (Shevlin, Neil) (Entered: 06/22/2007)

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06/28/2007 07/12/2007 07/12/2007 07/20/2007
08/06/2007 08/10/2007 09/17/2007
10/12/2007 11/15/2007 12/03/2007 12/03/2007 12/05/2007

88 NOTICE OF APPEARANCE by Julinda A. Dawkins on behalf of George E. Pataki, Robert Dennison, The New York State Division of Parole (Dawkins, Julinda) (Entered: 06/28/2007)
89 REPLY MEMORANDUM OF LAW in Support re: 77 CROSS MOTION to Certify Class.. Document filed by William Walker, Aaron Talley, Maurice Murrell, Steven Ho, Brian Jacques, Peter Graziano, Charles Friedgood, James Buckley, Mark Malone, Robert A. Harris. (Isseks, Robert) (Entered: 07/12/2007)
90 REPLY AFFIRMATION of Robert N. Isseks in Support re: 77 CROSS MOTION to Certify Class.. Document filed by William Walker, Aaron Talley, Maurice Murrell, Steven Ho, Brian Jacques, Peter Graziano, Charles Friedgood, James Buckley, Mark Malone, Robert A. Harris. (Attachments: # 1 Exhibit)(Isseks, Robert) (Entered: 07/12/2007)
Minute Entryfor proceedings held before Judge Charles L. Brieant : Oral Argument held on 7/20/2007 re: 73 SECOND MOTION to Dismiss the Amended Complaint. filed by The New York State Division of Parole, Robert Dennison, George E. Pataki, 77 CROSS MOTION to Certify Class. filed by Maurice Murrell, Peter Graziano, Charles Friedgood, James Buckley, Robert A. Harris, William Walker, Mark Malone, Steven Ho, Brian Jacques, Aaron Talley. Oral argument heard on motions Dkt# 73 and #77. Motions are fully submitted, decision reserved. The parties are to notify the Court by August 3, 2007 if they are able to settle. (Court Reporter Angela O'Donnell) (jma) (Entered: 07/24/2007)
91 ENDORSED LETTER addressed to Judge Charles L. Brieant from Neil Shevlin dated 8/3/2007 re: status of settlement decisions...request for a brief adjournment... ENDORSEMENT: Application Granted. SO ORDERED: (Signed by Judge Charles L. Brieant on 8/6/2007) "The Clerk's Office Has Mailed Copies".(mde) (Entered: 08/07/2007)
92 LETTER addressed to Gentlemen from Neil Shevlin dated 8/6/2007 re: Please be advised that Judge Brieant has granted our request for a two−week extension, until 8/17/2007, of time to inform the Court as to whether the parties have reached a settlement in this case.. Document filed by George E. Pataki, Robert Dennison, The New York State Division of Parole.(mde) (Entered: 08/10/2007)
93 LETTER addressed to Hon. Charles L. Brieant from Robert N. Isseks dated 08/16/2007 re: I write to letter to advise your Honor that the parties expect to reach a settlement in the above matter and wer therefore respectfully ask that the decisions on the pending motions be deferred...... Document filed by William Walker, Aaron Talley, Maurice Murrell, Steven Ho, Brian Jacques, Peter Graziano, Charles Friedgood, James Buckley, Mark Malone, Robert A. Harris.(jma) (Entered: 09/18/2007)
Minute Entry for proceedings held before Judge Charles L. Brieant : Status Conference held on 10/12/2007. Remark: Parties notify court by October 29, 2007, if able to settle. Submitted By: Alice Cama, Courtroom Deputy (dcr) (Entered: 10/17/2007)
94 LETTER addressed to Judge Charles L. Brieant from Neil Shevlin dated 11/14/07 re: Notification that defendants no longer wish to pursue settlement. (fk) (Entered: 11/16/2007)
95 LETTER addressed to Hon. Frank A. Sedita, Jr. from Angel Claudio dated 11/19/07 re: I will start off by stating that the above matter was postponed do till the outcome of Graziano....... Document filed by Peter Graziano.(jma) (jma). (Entered: 12/04/2007)
96 LETTER addressed to Judge C. Brieant from Lawrence Jones dated 11/19/07 re:.......This document needs your attention because the case before you needs a justice served. In God.....honor please take notice in interest of humanity for a common goal of law and rights...... Document filed by Peter Graziano.(jma) (jma). (Entered: 12/04/2007)
97 MEMORANDUM AND ORDER...Defendants' motion to dismiss is thus denied....For all of the foregoing reasons, Plaintiffs' motion for class certification is granted. Although Plaintiffs have not explicitly moved for an order certifying their

Case: 7:06-cv-480 As of: 06/07/2013 02:29 PM EDT 11 of 18

12/20/2007 12/21/2007 12/21/2007
01/04/2008 01/04/2008
01/29/2008 02/07/2008 02/14/2008 02/29/2008

counsel as class counsel, their memorandum of law in support of their motion for class certification discusses their qualifications to represent the proposed class....This Court finds that Plaintiffs' counsel, Robert N. Isseks, Alex Smith and Peter A. Sell, are qualified to represent the class and the Court hereby appoints them as class counsel. A status conference of counsel with the Court will be held on 12/20/07 at 9:00 am., at which time counsel is directed to serve and present for signature an order to provide notice to the class. So Ordered. (Signed by Judge Charles L. Brieant on 12/3/07) (fk) (Entered: 12/06/2007)
Minute Entry for proceedings held before Judge Charles L. Brieant: Pretrial Conference held on 12/20/2007. Proposed order and notice to the Class is presented to the Court. Counsel have agreed on context of the Notice. The Order as signed the Order and approved Notice as to form. Conference is scheduled for 11:30am 2/8/08. (Court Reporter Angela O'Donnell) (jma) (Entered: 12/21/2007)
98 ORDER FOR CLASS CERTIFICATION AND NOTICE OF THE CLASS... re: 97 Order on Motion to Dismiss, Order on Motion to Certify Class,,,,,, Pretrial Conference − Initial,.....This action is certified as a class action for the plaintiff class pursuant to rule 23a and 23b2....see order for more details... (Signed by Judge Charles L. Brieant on 12/20/2007) (jma) (Entered: 12/26/2007)
99 ORDER re: 97 Order on Motion to Dismiss, Order on Motion to Certify Class,,,,,,....By Memorandum and Order dated December 3, 2007, the Court granted the plaintiff's motion for class certification. The class that has been certified consists of all prisoners in the custody of the New York State Department of Correctional Services who (1) were convicted of A−1 violent felony offenses; (2) have served the minimum terms of their indeterminate sentences and are therefore eligible for parole release; and (3) have had their most recent applications for parole release denied by the Parole Board soley because of the seriousness of the offense, the nature of the present offense, or similar reasons......see order for more details... (Signed by Judge Charles L. Brieant on 12/20/2007) (jma) (Entered: 12/26/2007)
100 DECLARATION of Neil Shevlin in support of proposed order to take depositions of incarcerated plaintiffs. Document filed by George E. Pataki, Robert Dennison, The New York State Division of Parole. (Shevlin, Neil) (Entered: 01/04/2008)
101 ORDER GRANTING LEAVE FOR THE TAKING OF THE DEPOSITIONS OF INCARCERATED PLAINTIFFS...it is hereby Ordered, that tpursuant to FRCP 30(a), and upon notice given by defendants to plaintiffs, defendants may take the depositions of plaintiffs Peter Graziano (DIN # 86−A−4738), Mark Malone (DIN # 84−B−0878), Robert Harris (DIN # 79−C−0370), William Walker (DIN # 88−T−1224), Aaron Talley (DIN # 79−A−1113), and Brian Jacques (DIN # 83−B−2801), at a New York Correctional Facility. So Ordered. (Signed by Judge Charles L. Brieant on 1/4/08) (fk) (Entered: 01/07/2008)
102 TRANSCRIPT of proceedings held on December 20, 2007 before Judge Charles L. Brieant. Court Reporter: Angela A. O'Donnell. (br) (Entered: 01/29/2008)
103 LETTER addressed to Hon. Charles L. Brieant from Neil Shevlin dated 02/7/2008 re:....I write, respectfully on behalf of plaintiffs and deft's., to adjourn the status conference scheduled for tomorrow....... Document filed by George E. Pataki, Robert Dennison, The New York State Division of Parole.(jma) (Entered: 02/08/2008)
104 MOTION TO AMEND AMENDED COMPLAINT to Amend/Correct 5 Amended Complaint,. Document filed by Wamel Allah.(gco) (Entered: 02/27/2008)
105 MEMO ENDORSEMENT on re: 104 MOTION to Amend/Correct 5 Amended Complaint,. filed by Wamel Allah ;... The within motion (Doc. 104) is denied without prejudice. The movant is a member of the class certified in this action, and therefore is directed to proceed through attorneys Robert N. Isseks and Alex Smith, at 6 North Street, Middletown, NY, 10940, or attorney Peter A. Sell, at 324 West 96th Street, Suite 4B, New York, NY, 10025, whom this Court previously certified as class counsel by order dated December 3, 2007. SO ORDERED. (Signed by Judge Charles L. Brieant on 02/28/2008) (gco) (Entered: 03/04/2008)

Case: 7:06-cv-480 As of: 06/07/2013 02:29 PM EDT 12 of 18

04/03/2008 05/02/2008 05/12/2008
08/05/2008 11/06/2008
12/12/2008 12/12/2008 12/12/2008 01/07/2009 01/20/2009

106 ENDORSED LETTER addressed to Hon. Charles L. Brieant from Julinda Dawkins dated 04/03/2008 re:.....I write on behalf of both parties to request that the status conference scheduled for tommorrow 04/04/2008 at 11:00am be adjourned until Friday 05/02/2008...... ENDORSEMENT: Granted. So Ordered.. (Signed by Judge Charles L. Brieant on 04/03/2008) (jma) (Entered: 04/04/2008)
Minute Entry for proceedings held before Judge Charles L. Brieant: Status Conference held on 5/2/2008. A status conference is scheduled for June 13, 2008 at 11:00. (Court Reporter Albi Gorn) (jma) (Entered: 05/05/2008)
107 ENDORSED LETTER addressed to The Hon. Charles L. Brieant from Neil Shevlin dated 05/09/2008 re:...I write in response to Your Honor's May 2, 2008 Order directing the parties to advise the Court as to what should be done with regard to three cases currently before the Court...... ENDORSEMENT: The Court agrees with counsel for the deft's. with respect to future case managment of the above entitled cases. Specifically, the Tucker case is deemed subsumed with the Class Action under Docker No. 06cv0480 (CLB), and is hereby dismissed without prejudice and without costs. All subsequent proceedings and papers are to be filed under Docket No. 06 cv 0480 CLB. SO ORDERED.. (Signed by Judge Charles L. Brieant on 05/12/2008) "Copies Mailed By Chambers.(jma) (Entered: 05/13/2008)
108 NOTICE OF CASE REASSIGNMENT to Judge Cathy Seibel. Judge Charles L. Brieant is no longer assigned to the case. (Attachments: # 1 Case List) (mj) (Entered: 08/07/2008)
Minute Entry for proceedings held before Judge Cathy Seibel: Status Conference held on 11/6/2008, ( Deposition due by 11/28/2008., Motions due by 12/15/2008., Replies due by 1/19/2009., Responses due by 1/12/2009, Status Conference set for 1/19/2009 at 09:30 AM before Judge Cathy Seibel.). Depositions, other than that of former Gov. Pataki, are to be completed by November 28, 2008. A motion to compel the deposition of Gov. Pataki, if filed, should be filed by December 15, 2008; Opposition by January 12, 2009. The Court will determine if oral argument is required. If no motion is filed, a status conference will be held on Monday January 12, 2009 at 9:30 am. See Transcript.(Court Reporter Sue Ghorayeb) (rj) (Entered: 11/06/2008)
109 MOTION to Take Deposition from George Pataki. Document filed by William Walker, Aaron Talley, Maurice Murrell, Steven Ho, Brian Jacques, Peter Graziano, Charles Friedgood, James Buckley, Mark Malone, Robert A. Harris.(Isseks, Robert) (Entered: 12/12/2008)
110 MEMORANDUM OF LAW in Support re: 109 MOTION to Take Deposition from George Pataki.. Document filed by William Walker, Aaron Talley, Maurice Murrell, Steven Ho, Brian Jacques, Peter Graziano, Charles Friedgood, James Buckley, Mark Malone, Robert A. Harris. (Isseks, Robert) (Entered: 12/12/2008)
111 DECLARATION of Robert N. Isseks in Support re: 109 MOTION to Take Deposition from George Pataki.. Document filed by William Walker, Aaron Talley, Maurice Murrell, Steven Ho, Brian Jacques, Peter Graziano, Charles Friedgood, James Buckley, Mark Malone, Robert A. Harris. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Isseks, Robert) (Entered: 12/12/2008)
112 NOTICE OF ADJOURNMENT OF COURT CONFERENCE: Conference set for 1/30/2009 at 09:45 AM before Judge Cathy Seibel. The conference scheduled before this Court for January 12,2009 has been ADJOURNED by the Court to January 30,2009 at 9:45am., at the Charles L. Brieant, Jr. United States Courthouse,300 Quarropas Street, White Plains, NY 10601, Courtroom 218. (rj) (Entered: 01/07/2009)
113 ENDORSED LETTER addressed to Your Honor from Neil Shevlin dated 1/16/2009 re:...I write respectfully to request a three− week extension of defendants' time to oppose plaintiffs' Fed. R.. Civ. P. 37 motion from January 12,2009 to February 2,2009.. ENDORSEMENT: Application granted. Conference set for 1/30/09 adjourned pending decision on motion.., ( Replies due by 2/9/2009., Responses due by 2/2/2009) SO ORDERED. (Signed by Judge Cathy Seibel on 1/16/2009) (rj) (Entered: 01/21/2009)

Case: 7:06-cv-480 As of: 06/07/2013 02:29 PM EDT 13 of 18

02/11/2009
02/11/2009 02/11/2009 02/23/2009 03/12/2009 03/13/2009 04/16/2009 04/27/2009
10/05/2009
10/15/2009 01/22/2010
03/18/2010
03/18/2010

114 DECLARATION of Neil Shevlin in Opposition re: 109 MOTION to Take Deposition from George Pataki.. Document filed by George E. Pataki, Robert Dennison, The New York State Division of Parole. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J)(Shevlin, Neil) (Entered: 02/11/2009)
115 MEMORANDUM OF LAW in Opposition re: 109 MOTION to Take Deposition from George Pataki.. Document filed by George E. Pataki, Robert Dennison, The New York State Division of Parole. (Shevlin, Neil) (Entered: 02/11/2009)
117 ORDER: Pursuant to the parties' Stipulation and Order of Protection dated November 3, 2006, it is hereby ORDERED that the following attached documents be sealed... SO ORDERED. (Signed by Judge Cathy Seibel on 02/10/2009) (gco) (Entered: 02/24/2009)
116 SEALED DOCUMENT placed in vault.(jma) (Entered: 02/24/2009)
119 SEALED DOCUMENT placed in vault.(jma) (Entered: 03/16/2009)
118 ORDER TO FILE DOCUMENTS UNDER SEAL........... (Signed by Judge Cathy Seibel on 02/23/2008) (jma) (Entered: 03/16/2009)
120 LETTER addressed to Judge Cathy Seibel from Steven Dennehy dated 4/10/09. (fk) (Entered: 04/20/2009)
121 MEMORANDUM DECISION AND ORDER :...For the reasons stated above, Plaintiffs' Motion to Compel Deposition is DENIED. The Clerk of Court is respectfully directed to terminate the pending motion.(Doc.109.) Motions terminated: 109 MOTION to Take Deposition from George Pataki. filed by Maurice Murrell, Peter Graziano, Charles Friedgood, James Buckley, Robert A. Harris, William Walker, Mark Malone, Steven Ho, Brian Jacques, Aaron Talley. SO ORDERED (Signed by Judge Cathy Seibel on 4/27/2009) (rj) (Entered: 04/27/2009)
122 NOTICE OF COURT CONFERENCE: A conference will be held before the Hon. Cathy Seibel, U.S.D.J. on October 15, 2009 at 10:00 a.m. at the United States Courthouse, 300 Quarropas Street, White Plains, NY 10601, Courtroom 218. Conference set for 10/15/2009 at 10:00 AM before Judge Cathy Seibel. (mml) (Entered: 10/08/2009)
Minute Entry for proceedings held before Judge Cathy Seibel: Status Conference held on 10/15/2009. Counsel indicate that discovery and interrogatories have been completed. Conference is scheduled for April 16, 2010 at 11:00 a.m. See transcript. (Court Reporter Albi Gorn) (fk) (Entered: 10/15/2009)
123 NOTICE OF ADJOURNMENT OF COURT CONFERENCE: The conference before this Court previously scheduled for April 16, 2010 is adjourned by this Court to April 23, 2010 at 11:00 a.m. at the Charles L. Brieant Jr. United States Courthouse, 300 Quarropas St., White Plains, NY 10601, Courtroom 216. Case Management Conference set for 4/23/2010 at 11:00 AM before Judge Cathy Seibel. (mml) (Entered: 01/25/2010)
124 LETTER addressed to Judge Cathy Seibel from Neil Shevlin dated 3/17/2010 re:...I write in response to plaintiff's March 4,2010 letter to the Court requesting that the stay in the instant action be lifted. Defendants oppose this request.... Document filed by George E. Pataki, Robert Dennison, The New York State Division of Parole.(rj) (Entered: 03/18/2010)
125 ENDORSED LETTER addressed to Judge Cathy Seibel from Robert N. Isseks dated 3/4/2010 re: Enclosed please find our letter to the Clerk of the Court of appeals which is self explanatory. For the reasons set forth in that letter we are respectfully that your Honor lift the stay in Graziano.. ENDORSEMENT: In light of Mr. Mathies' opposition to withdrawal of his appeal, I will await the Court of Appeals decision in his case(either to stay it or a decision on the merits). Plaintiff may renew their application if appropriate once the Court of Appeals makes its views known. SO ORDERED (Signed by Judge Cathy Seibel on 3/17/2010) (rj) (Entered: 03/18/2010)

Case: 7:06-cv-480 As of: 06/07/2013 02:29 PM EDT 14 of 18

04/20/2010 04/20/2010 07/23/2010 10/06/2010 10/21/2010 11/10/2010
11/15/2010 11/15/2010 11/15/2010 11/15/2010 11/15/2010

126 ENDORSED LETTER addressed to Judge Cathy Seibel from Julinda Dawkins dated 4/16/2010 re: I write with the consent of Plaintiff's counsel to request that the status conference scheduled for April 23, 2010 at 11:00 AM be adjourned sine dine... ENDORSEMENT: Conference adjourned to 7/23/2010 at 11:30 AM. SO ORDERED. (Signed by Judge Cathy Seibel on 4/19/2010) (mml) (Entered: 04/20/2010)
Set/Reset Hearings: Status Conference set for 7/23/2010 at 11:30 AM before Judge Cathy Seibel. (mml) (Entered: 04/20/2010)
Minute Entry for proceedings held before Judge Cathy Seibel: Status Conference held on 7/23/2010. Defendant has leave to file renewal of its 12(b) motion by 9/24/10; Opposition by 10/25/10; Repl yby 11/8/10. Oral argument is scheduled before this Court for December 8, 2010 at 9:45.am. See transcript. (Court Reporter Mary Staten) (fk) (Entered: 07/26/2010)
127 NOTICE OF ADJOURNMENT OF COURT CONFERENCE:The conference previously scheduled by this Court for December 8,2010 is adjourned by this Court to December 10,2010 at 11:00am at the Charles L. Brieant United States Courthouse, 300 Quarropas St., White Plains, NY 10601, Courtroom 218. All other deadlines remain in place. Case Management Conference set for 12/10/2010 at 11:00 AM before Judge Cathy Seibel. (rj) (Entered: 10/06/2010)
128 ENDORSED LETTER addressed to Cathy Seibel from Peter A. Sell dated 10/20/2010 re: I am one of the attorneys representing the plaintiffs in the above−referenced class action case and I write to request a one−week extension of time for plaintiffs to oppose defendant's motion to dismiss.. ENDORSEMENT: Application Granted. SO ORDERED. (Signed by Judge Cathy Seibel on 10/20/2010) (jma) (Entered: 10/21/2010)
129 ENDORSED LETTER addressed to Judge Cathy Seibel from Wamel Allah dated 11/5/2010 re: Please be advised that I am writing to you about the upcoming motion schedule for the Attorney General's Challenge to the claims and oral arguments scheduled for December 8,2010 at 9:45am... ENDORSEMENT: Class counsel are directed to advise Mr. Allah that Judge Brieant on 2/29/08 denied his motion to amend the complaint, that in this action Plaintiffs may proceed only through counsel, and that if Plaintiffs have separate issues they would need to initiate a separate case. SO ORDERED (Signed by Judge Cathy Seibel on 11/10/2010) (rj) (Entered: 11/12/2010)
130 THIRD MOTION to Dismiss First Amended Complaint. Document filed by Robert Dennison, George E. Pataki, The New York State Division of Parole.(Shevlin, Neil) (Entered: 11/15/2010)
131 MEMORANDUM OF LAW in Support re: 130 THIRD MOTION to Dismiss First Amended Complaint.. Document filed by Robert Dennison, George E. Pataki, The New York State Division of Parole. (Shevlin, Neil) (Entered: 11/15/2010)
132 MEMORANDUM OF LAW in Opposition re: 130 THIRD MOTION to Dismiss First Amended Complaint.. Document filed by James Buckley, Charles Friedgood, Peter Graziano, Robert A. Harris, Steven Ho, Brian Jacques, Mark Malone, Maurice Murrell, Aaron Talley, William Walker. (Shevlin, Neil) (Entered: 11/15/2010)
133 DECLARATION of Robert N. Isseks in Opposition re: 130 THIRD MOTION to Dismiss First Amended Complaint.. Document filed by James Buckley, Charles Friedgood, Peter Graziano, Robert A. Harris, Steven Ho, Brian Jacques, Mark Malone, Maurice Murrell, Aaron Talley, William Walker. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Isseks, Robert) (Entered: 11/15/2010)
134 AFFIDAVIT OF SERVICE of Declaration and Memorandum of Law in Opposition served on Neil Shevlin on October 29, 2010. Service was made by Mail. Document filed by James Buckley, Charles Friedgood, Peter Graziano, Robert A. Harris, Steven Ho, Brian Jacques, Mark Malone, Maurice Murrell, Aaron Talley, William Walker. (Isseks, Robert) (Entered: 11/15/2010)

Case: 7:06-cv-480 As of: 06/07/2013 02:29 PM EDT 15 of 18

11/15/2010 11/15/2010 11/15/2010 11/23/2010
12/01/2010 12/01/2010 12/10/2010
12/16/2010
01/11/2011 01/11/2011 01/11/2011 01/11/2011 01/11/2011 01/18/2011

135 TRANSCRIPT of proceedings held on 7/13/2010 before Judge Cathy Seibel. Court Reporter: Mary M. Staten. (jma) (Entered: 11/15/2010)
136 REPLY MEMORANDUM OF LAW in Support re: 130 THIRD MOTION to Dismiss First Amended Complaint.. Document filed by Robert Dennison, George E. Pataki, The New York State Division of Parole. (Shevlin, Neil) (Entered: 11/15/2010)
137 DECLARATION of Neil Shevlin in Support re: 130 THIRD MOTION to Dismiss First Amended Complaint.. Document filed by Robert Dennison, George E. Pataki, The New York State Division of Parole. (Shevlin, Neil) (Entered: 11/15/2010)
138 ENDORSED LETTER addressed to Dear Judge Seibel from Wamel Allah dated 11/22/2010 re:.....request your honor appoint my amended complaint for all damage claim or my individual claims....... ENDORSEMENT: A pro se amendment to the complaint cannot be accepted in this case in which the class is represented by counsel. If Mr. Allah chooses to file an individual action. The issues (statute of limitations) and otherwise by may be litigated in the content of that case.. (Signed by Judge Cathy Seibel on 11/23/2010) (jma) (Entered: 11/24/2010)
Mailed 138 Endorsed Letter to Wamel Allah. (fk) (Entered: 12/01/2010)
139 Letter addressed to Hon. Cathy Seibel from Wamel Allah dated 11/18/2010 re: Accordingly to the Docket sheet Judge Judge Brieants order memo endorsement never articulated I had to bring a separate case...... Document filed by Wamel Allah.(jma) (Entered: 12/02/2010)
Minute Entry for proceedings held before Judge Cathy Seibel: Motion Hearing held on 12/10/2010 re: 130 THIRD MOTION to Dismiss First Amended Complaint. filed by The New York State Division of Parole, Robert Dennison, George E. Pataki. Oral argument heard. The Court issues oral decision on Motion Doc. No. 130. Motion is granted. The clerk is directed to term motion Doc No. 130 and close the case (Court Reporter Albi Gorn) (jma) (Entered: 12/14/2010)
140 JUDGMENT in favor of The New York State Division of Parole, George E. Pataki, Robert Dennison against Aaron Talley, Brian Jacques, Charles Friedgood, James Buckley, Mark Malone, Maurice Murrell, Peter Graziano, Robert A. Harris, Steven Ho, Wamel Allah, William Walker.ORDERED, ADJUDGED AND DECREED: That the action be and it ishereby dismissed. (Signed by Clerk of Court Ruby Krajick on 12/16/2010) (jma) (Entered: 12/16/2010)
141 NOTICE OF APPEAL from 140 Judgment,. Document filed by James Buckley, Charles Friedgood, Peter Graziano, Robert A. Harris, Steven Ho, Brian Jacques, Mark Malone. Fee waived IFP Granted. (ll) (Entered: 01/11/2011)
142 ENDORSEMENT on Declaration in Support of Request to Proceed In Forma Pauperis, I.F.P. REQUEST IS GRANTED as to AARON TALLEY. SO ORDERED. (Signed by Judge Cathy Seibel on 1/11/2011) (mml) (Entered: 01/13/2011)
143 ENDORSEMENT on Declaration in Support of Request to Proceed In Forma Pauperis, I.F.P. REQUEST IS GRANTED as to MARK MALONE. SO ORDERED. (Signed by Judge Cathy Seibel on 1/11/2011) (mml) (Entered: 01/13/2011)
144 ENDORSEMENT on Declaration in Support of Request to Proceed In Forma Pauperis, I.F.P. REQUEST IS GRANTED as to ROBERT A. HARRIS. SO ORDERED. (Signed by Judge Cathy Seibel on 1/11/2011) (mml) (Entered: 01/13/2011)
145 ENDORSEMENT on Declaration in Support of Request to Proceed In Forma Pauperis, I.F.P. REQUEST IS GRANTED as to PETER GRAZIANO. SO ORDERED. (Signed by Judge Cathy Seibel on 1/11/2011) (mml) (Entered: 01/13/2011)
Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Appeal Electronic Files for 99 Order,,, 81 Declaration in Support of Motion,, filed by Maurice Murrell, Peter Graziano, Charles Friedgood, James Buckley, Robert A.

Case: 7:06-cv-480 As of: 06/07/2013 02:29 PM EDT 16 of 18
Harris, William Walker, Mark Malone, Steven Ho, Brian Jacques, Aaron Talley, 105 Memo Endorsement,, 69 Letter, filed by Maurice Murrell, Peter Graziano, Robert Dennison, Charles Friedgood, James Buckley, Robert A. Harris, William Walker, Mark Malone, The New York State Division of Parole, Steven Ho, Brian Jacques, George E. Pataki, Aaron Talley, 22 Letter, 76 Letter, filed by Maurice Murrell, Peter Graziano, Charles Friedgood, James Buckley, Robert A. Harris, William Walker, Mark Malone, Steven Ho, Brian Jacques, Aaron Talley, 26 Letter, 36 Letter, 89 Reply Memorandum of Law in Support of Motion, filed by Maurice Murrell, Peter Graziano, Charles Friedgood, James Buckley, Robert A. Harris, William Walker, Mark Malone, Steven Ho, Brian Jacques, Aaron Talley, 111 Declaration in Support of Motion, filed by Maurice Murrell, Peter Graziano, Charles Friedgood, James Buckley, Robert A. Harris, William Walker, Mark Malone, Steven Ho, Brian Jacques, Aaron Talley, 100 Declaration filed by Robert Dennison, The New York State Division of Parole, George E. Pataki, 52 Letter, 72 Letter, filed by Robert Dennison, The New York State Division of Parole, George E. Pataki, 78 Memorandum of Law in Opposition to Motion, filed by Maurice Murrell, Peter Graziano, Charles Friedgood, James Buckley, Robert A. Harris, William Walker, Mark Malone, Steven Ho, Brian Jacques, Aaron Talley, 46 Letter, 58 Letter, 56 Letter, 118 Order, 143 I.F.P. Endorsement, 59 Stipulation and Order, 61 Endorsed Letter, 114 Declaration in Opposition to Motion, filed by Robert Dennison, The New York State Division of Parole, George E. Pataki, 41 Letter, 34 Letter, 108 Notice of Case Assignment/Reassignment, 122 Notice of Hearing, 2 Waiver of Service Executed, filed by Maurice Murrell, Peter Graziano, James Buckley, Robert A. Harris, William Walker, Mark Malone, Steven Ho, Brian Jacques, Aaron Talley, 74 Memorandum of Law in Support of Motion filed by Robert Dennison, The New York State Division of Parole, George E. Pataki, 9 Notice (Other) filed by Robert Dennison, The New York State Division of Parole, George E. Pataki, 42 Letter, 16 Letter, 60 Letter filed by Robert Dennison, The New York State Division of Parole, George E. Pataki, 14 Reply Memorandum of Law in Support of Motion filed by Robert Dennison, The New York State Division of Parole, George E. Pataki, 7 Letter, filed by Robert Dennison, The New York State Division of Parole, George E. Pataki, 48 Letter, 133 Declaration in Opposition to Motion, filed by Maurice Murrell, Peter Graziano, Charles Friedgood, James Buckley, Robert A. Harris, William Walker, Mark Malone, Steven Ho, Brian Jacques, Aaron Talley, 90 Reply Affirmation in Support of Motion, filed by Maurice Murrell, Peter Graziano, Charles Friedgood, James Buckley, Robert A. Harris, William Walker, Mark Malone, Steven Ho, Brian Jacques, Aaron Talley, 127 Notice of Hearing, 113 Endorsed Letter, Set Deadlines/Hearings,, 44 Letter, 84 Letter, filed by Robert Dennison, The New York State Division of Parole, George E. Pataki, 65 Letter, 115 Memorandum of Law in Opposition to Motion filed by Robert Dennison, The New York State Division of Parole, George E. Pataki, 137 Declaration in Support of Motion filed by Robert Dennison, The New York State Division of Parole, George E. Pataki, 73 SECOND MOTION to Dismiss the Amended Complaint. filed by Robert Dennison, The New York State Division of Parole, George E. Pataki, 57 Letter, 32 Letter, 51 Letter, 107 Endorsed Letter,,, 11 Endorsed Letter, 83 Letter filed by Robert Dennison, The New York State Division of Parole, George E. Pataki, 124 Letter, filed by Robert Dennison, The New York State Division of Parole, George E. Pataki, 53 Letter, 123 Notice of Hearing, 77 CROSS MOTION to Certify Class. filed by Maurice Murrell, Peter Graziano, Charles Friedgood, James Buckley, Robert A. Harris, William Walker, Mark Malone, Steven Ho, Brian Jacques, Aaron Talley, 128 Endorsed Letter, 79 Memorandum of Law in Support of Motion, filed by Maurice Murrell, Peter Graziano, Charles Friedgood, James Buckley, Robert A. Harris, William Walker, Mark Malone, Steven Ho, Brian Jacques, Aaron Talley, 130 THIRD MOTION to Dismiss First Amended Complaint. filed by Robert Dennison, The New York State Division of Parole, George E. Pataki, 54 Letter, 101 Order,, 50 Letter, 35 Letter, 13 Declaration in Opposition to Motion,,, filed by Maurice Murrell, Peter Graziano, Charles Friedgood, James Buckley, Robert A. Harris, William Walker, Mark Malone, Steven Ho, Brian Jacques, Aaron Talley, 71 Letter filed by Robert Dennison, The New York State Division of Parole, George E. Pataki, 23 Letter, 75 Declaration in Support of Motion, filed by Robert Dennison, The New York State Division of Parole, George E. Pataki, 18 Letter, 37 Letter, 117 Order, 64 Letter, 8 FIRST MOTION to Dismiss the Amended Complaint. filed by Robert Dennison, The New York State Division of Parole,

Case: 7:06-cv-480 As of: 06/07/2013 02:29 PM EDT 17 of 18

06/08/2011 06/13/2011

George E. Pataki, 134 Affidavit of Service Other, filed by Maurice Murrell, Peter Graziano, Charles Friedgood, James Buckley, Robert A. Harris, William Walker, Mark Malone, Steven Ho, Brian Jacques, Aaron Talley, 106 Endorsed Letter, 92 Letter, filed by Robert Dennison, The New York State Division of Parole, George E. Pataki, 70 Letter, 4 Letter, filed by Maurice Murrell, Peter Graziano, James Buckley, Robert A. Harris, William Walker, Mark Malone, Steven Ho, Brian Jacques, Aaron Talley, 30 Letter, 112 Notice of Hearing, 136 Reply Memorandum of Law in Support of Motion filed by Robert Dennison, The New York State Division of Parole, George E. Pataki, 141 Notice of Appeal filed by Peter Graziano, Charles Friedgood, James Buckley, Robert A. Harris, Mark Malone, Steven Ho, Brian Jacques, 67 Letter filed by Robert Dennison, The New York State Division of Parole, George E. Pataki, 126 Endorsed Letter, 62 Letter, 39 Letter, 3 Waiver of Service Executed, filed by Maurice Murrell, Peter Graziano, James Buckley, Robert A. Harris, William Walker, Mark Malone, Steven Ho, Brian Jacques, Aaron Talley, 40 Letter, 121 Order, Terminate Motions,,,, 68 Letter, filed by George E. Pataki, 49 Letter, 33 Letter, 131 Memorandum of Law in Support of Motion filed by Robert Dennison, The New York State Division of Parole, George E. Pataki, 145 I.F.P. Endorsement, 29 Letter, 85 Letter, filed by Robert Dennison, The New York State Division of Parole, George E. Pataki, 45 Letter, filed by Robert Dennison, The New York State Division of Parole, George E. Pataki, 138 Endorsed Letter,, 97 Order on Motion to Dismiss, Order on Motion to Certify Class,,,,,, 38 Letter, 142 I.F.P. Endorsement, 63 Letter, filed by Maurice Murrell, Peter Graziano, Charles Friedgood, James Buckley, Robert A. Harris, William Walker, Mark Malone, Steven Ho, Brian Jacques, Aaron Talley, 47 Letter, 98 Order, 31 Letter, 10 Declaration in Support of Motion,,, filed by Robert Dennison, The New York State Division of Parole, George E. Pataki, 15 Letter, 110 Memorandum of Law in Support of Motion, filed by Maurice Murrell, Peter Graziano, Charles Friedgood, James Buckley, Robert A. Harris, William Walker, Mark Malone, Steven Ho, Brian Jacques, Aaron Talley, 19 Notice of Appearance filed by Robert Dennison, The New York State Division of Parole, George E. Pataki, 55 Letter, 104 MOTION to Amend/Correct 5 Amended Complaint,. filed by Wamel Allah, 129 Endorsed Letter,, 82 Letter, filed by Robert Dennison, The New York State Division of Parole, George E. Pataki, 27 Letter, 12 Memorandum of Law in Opposition to Motion, filed by Maurice Murrell, Peter Graziano, Charles Friedgood, James Buckley, Robert A. Harris, William Walker, Mark Malone, Steven Ho, Brian Jacques, Aaron Talley, 6 Endorsed Letter, 132 Memorandum of Law in Opposition to Motion, filed by Maurice Murrell, Peter Graziano, Charles Friedgood, James Buckley, Robert A. Harris, William Walker, Mark Malone, Steven Ho, Brian Jacques, Aaron Talley, 80 Declaration in Opposition to Motion,, filed by Maurice Murrell, Peter Graziano, Charles Friedgood, James Buckley, Robert A. Harris, William Walker, Mark Malone, Steven Ho, Brian Jacques, Aaron Talley, 87 Reply Memorandum of Law in Support of Motion filed by Robert Dennison, The New York State Division of Parole, George E. Pataki, 1 Complaint, filed by Maurice Murrell, Peter Graziano, James Buckley, Robert A. Harris, William Walker, Mark Malone, Steven Ho, Brian Jacques, Aaron Talley, 28 Letter, 139 Letter filed by Wamel Allah, 88 Notice of Appearance filed by Robert Dennison, The New York State Division of Parole, George E. Pataki, 86 Declaration in Support of Motion filed by Robert Dennison, The New York State Division of Parole, George E. Pataki, 95 Letter filed by Peter Graziano, 21 Answer to Complaint filed by Robert Dennison, The New York State Division of Parole, George E. Pataki, 140 Judgment, 5 Amended Complaint, filed by Charles Friedgood, 109 MOTION to Take Deposition from George Pataki. filed by Maurice Murrell, Peter Graziano, Charles Friedgood, James Buckley, Robert A. Harris, William Walker, Mark Malone, Steven Ho, Brian Jacques, Aaron Talley, 17 Order on Motion to Dismiss, 25 Letter, 96 Letter, filed by Peter Graziano, 103 Letter, filed by Robert Dennison, The New York State Division of Parole, George E. Pataki, 125 Endorsed Letter,, 24 Letter, 91 Endorsed Letter, 144 I.F.P. Endorsement, 94 Letter were transmitted to the U.S. Court of Appeals. (cda) (Entered: 01/18/2011)
Request for Copies/Transcripts/Docket Sheet Received: Request for Docket Sheet from Joseph Quick received on 06/08/2011. (gs) (Entered: 06/13/2011)
Request for Copies/Transcripts/Docket Sheet Mailed: Request for Docket Sheet from Joseph Quick mailed on 06/13/2011. (gs) (Entered: 06/13/2011)

Case: 7:06-cv-480 As of: 06/07/2013 02:29 PM EDT 18 of 18

01/27/2012 11/14/2012 11/14/2012

Request for Copies/Transcripts/Docket Sheet Received: Request for Docket Sheet from Wamel Allah received on January 25, 2012. Request for Copies/Transcripts/Docket Sheet Mailed: Request for Docket Sheet from Wamel Allah mailed on January 25, 2012. (vn) (Entered: 01/27/2012)
146 MANDATE of USCA (Certified Copy) USCA Case Number 11−116. Ordered, Adjudged and Decreed that the judgment of the District Court is AFFIRMED. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As Mandate: 11−14−2012. Certified: 11−14−2012. (br) (Entered: 11/15/2012)
Transmission of USCA Mandate/Order to the District Judge Seibel re: 146 USCA Mandate,. (br) (Entered: 11/15/2012)