Opinion
03 CV 0580 (TPG).
March 31, 2006
OPINION
Pro Se plaintiff Abdel-Jabbor Malik brings this action under 42 U.S.C. § 1983 alleging that defendant George Mackey, plaintiff's state parole officer, violated plaintiff's constitutional right to Due Process under the Fourteenth Amendment by filing false parole violation charges against him.
Defendant has moved for summary judgment. The motion is granted.
FACTS
On March 31, 1979, plaintiff was arrested by New York City Police and charged with robbery, sexual abuse, and possession of a knife. Plaintiff was ultimately convicted and sentenced to a prison term of 12 and a half to 25 years.
In addition to these charges, plaintiff was also convicted in federal court of mailing threatening communications. On July 7, 1992, plaintiff received a sentence of two years imprisonment for this crime, to be served consecutively with the state sentence.
On May 27, 1993, plaintiff was paroled by the State Division of Parole. Plaintiff was also placed on parole for his federal crime.
Upon release from State custody, plaintiff was served with, and signed, a Certificate of Release to Parole Supervision (the "Certificate"). The Certificate set forth various conditions for plaintiff's release, two of which are relevant to the present case. Condition Number Two of the Certificate required plaintiff to "make office and/or written reports as directed." Condition Number Four of the Certificate stated:
I will discuss any proposed changes in my residence, employment or program status with my Parole Officer. I understand that I have an immediate and continuing duty to notify my Parole Officer of any changes in my residence, employment or program status when circumstances beyond my control make prior discussion impossible.
Mackey began supervising plaintiff in May 1997, at which time he reiterated to plaintiff that a condition of his release was that he "make his office reports as scheduled." Mackey also told plaintiff that "if he gets into any residential program, he is to report to me immediately after getting out of that residential program."
Initially, plaintiff did make his office reports regularly, first on a weekly and then on a bi-weekly basis. In early June 1997, Mackey received a letter from a residential drug treatment facility named Phoenix House in Chester, New York, informing him that plaintiff was residing at that facility. Mackey also received a phone call from plaintiff's federal parole officer, Abby George, informing him that plaintiff was in the Phoenix House program. During the period plaintiff was residing at Phoenix House, plaintiff was apparently not required to make any office reports.
At some point in July 1997, plaintiff had a dispute with security personnel at Phoenix House and was required to leave that facility. On July 21, 1997 George called Mackey and informed him that "Malik was back in New York and out of the program and in her office." Mackey told George to tell plaintiff that he must report to Mackey's office on July 23, 1997. Plaintiff does not dispute that he received this message.
Plaintiff did not report on July 23, 1997 as expected. Mackey then discussed the situation with his supervisor, who directed him to wait another week, until July 30, 1997, to see if plaintiff would make the office report as directed. On July 30, 1997, plaintiff again failed to report. Mackey's supervisor directed him to wait yet another week and "see what happens on August 6, and that would be three times he failed to arrive." At some point during this second week, Mackey called George who related that plaintiff had reported to her, and was then residing in a new facility.
Plaintiff did not report on August 6, 1997. On that date, however, plaintiff phoned Mackey who advised him that he was being charged with parole violations.
On August 7, 1997, Mackey issued a Violation of Release Report charging plaintiff with violating rules two and four, and a warrant was issued for his arrest. The first charge asserted:
On 7/21/97 Jabor Abdel Malik violated Rule # 4 of the Rules Governing his Release when he moved from his approved residence, Phoenix House, Chester, New York, without approval or notification of his Parole Officer.
The Second Charge stated:
On 7/23/97 and thereafter Abdel Malik violated Rule # 2 of the Rules governing his Release when he failed to make his office report as directed by his Parole Officer on 7/22/97. He has to this date failed to make his report.
On the same day, a warrant was issued for plaintiff's arrest and plaintiff voluntarily surrendered himself at the parole office where he was taken into custody. Plaintiff was held at Rikers Island from August 7, 1997 until August 15, 1997.
On August 15, 1997, a preliminary hearing was held to determine whether there was probable cause to believe that plaintiff violated the specified conditions of his parole. At the hearing, Mackey testified credibly to the above stated facts about which there is no material dispute.
Mackey also testified that after being taken into custody plaintiff stated that he had not made his office reports because "he was reporting to his federal parole officer, that she knew where he was." Later that day, Federal Parole Officer George called Mackey and confirmed that plaintiff had, in fact, been reporting regularly to her.
Upon direct questioning from the Hearing Officer, Mackey testified that he was not supervising plaintiff through the federal parole officer. Mackey has also submitted a declaration stating that there was no cooperation agreement between the federal and state parole officers and that he is unaware of any such agreements under any circumstances.
The hearing officer found that there was "no probable cause to believe that plaintiff had violated the conditions of release to parole in an important respect as charged in the two charges on this Violation of Release Report," and plaintiff was immediately released.
DISCUSSION
Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The burden to show that there are no genuine issues of fact rests with the party seeking summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986); Tomka v. Seiler Corp., 66 F.3d 1295, 1304 (2d Cir. 1995). Nevertheless, the party opposing the motion bears the ultimate burden of proof to demonstrate that there is some evidence which would create a genuine issue of material fact. Twin Labs., Inc. v. Weider Health Fitness, 900 F.2d 566, 568 (2d Cir. 1990). The non-movant cannot meet this burden by simply relying on mere conclusory allegations, speculation or conjecture. Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986).
Plaintiff argues that Mackey violated his constitutional right to Due Process by knowingly filing false parole violation charges against him, which resulted in his arrest and approximately one-week incarceration.
Plaintiff admits that he left Phoenix House without first notifying Mackey and that he did not report to Mackey after leaving that facility despite Mackey's July 21, 1997 directive that he must report. Plaintiff contends, however, that his sudden eviction from Phoenix House was a circumstance beyond his control that made it impossible for him to seek prior approval of the change in residence from Mackey.
Plaintiff further claims that he did not subsequently report to Mackey because there was a cooperation agreement between his federal Parole Officer George and Mackey whereby plaintiff's state parole reporting obligation would be satisfied by reporting to his federal parole officer. Plaintiff argues that Mackey charged him with parole violations and had him arrested despite Mackey's knowledge that such a cooperation agreement was in place and that plaintiff was complying with it by making regular reports to his federal parole officer.
Mackey puts forth two main arguments in favor of his motion for summary judgment. First, Mackey argues that even if he did, in fact, knowingly file false parole violation charges, this does not amount to a constitutional violation under the Second Circuit's holding in Freeman v. Rideout, 808 F.2d 949 (2d Cir. 1986). Second, Mackey contends that he is entitled to qualified immunity because he reasonably believed plaintiff had violated the conditions of his release. The court does not reach Mackey's first argument under Freeman because the court agrees with Mackey's alternative argument that he is entitled to qualified immunity.
It is well established that a government official performing a discretionary task is entitled to immunity from § 1983 suits if it was objectively reasonable for the defendant to believe that his action did not violate clearly established law. Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246, 250 (2d Cir. 2001);Salim v. Proulx, 93 F.3d 86, 89 (2d Cir. 1996).
Condition Number Four of plaintiff's release to parole supervision required him to discuss proposed changes in residence with Mackey, or if circumstances made such prior discussion impossible, to notify Mackey as soon as possible thereafter. It is undisputed that plaintiff did not have any prior discussion with Mackey about leaving Phoenix House. Even if plaintiff's claim that the circumstances of his departure made prior discussion impossible is accurate, he nevertheless neglected his "immediate and continuing duty" to notify Mackey after the move. The record is clear that plaintiff did not communicate with Mackey until August 6, 1997, more than two weeks after his eviction from Phoenix House.
Condition Number Two of plaintiff's release to parole supervision required him to "make office and/or written reports as directed." It is undisputed that on July 21, 1997 Mackey directed plaintiff to make an office report on July 23. Plaintiff does not dispute that he received this directive. Nevertheless, plaintiff did not report on July 23 or for two full weeks thereafter.
Plaintiff's failure to notify Mackey of his change in residence and to make his office report as directed were sufficient to make it objectively reasonable for Mackey to believe that plaintiff had violated Conditions Two and Four of his conditions of release to parole. Mackey is therefore entitled to qualified immunity.
Plaintiff's contention that he was not required to comply with the State Conditions of Release to Parole because he was reporting to his federal parole officer is entirely without merit. There is nothing in the record that contradicts Mackey's statement that he was not supervising plaintiff through plaintiff's federal parole officer and that there was no cooperation agreement between the two parole officers. The fact that George, on an informal basis, occasionally related plaintiff's whereabouts to Mackey does not create a triable inference with respect to plaintiff's claim that a cooperation agreement existed. Moreover, the fact that the Hearing Officer later found no probable cause is not determinative as "the existence of probable cause is measured as of the moment of the arrest, not on later developments." Beck v. Ohio, 379 U.S. 89, 93 (1964). The court finds, as a matter of law, that Mackey reasonably believed plaintiff violated his conditions of parole by his undisputed failure to report after leaving Phoenix House and thereafter. Mackey is therefore entitled to qualified immunity.
CONCLUSION
Defendant's motion for summary judgment is granted. All other outstanding motions heretofore filed by plaintiff are denied.
SO ORDERED