Summary
holding that a challenge to 1998 parole denial was "academic" because of subsequent parole denials
Summary of this case from Siao-Pao v. ConnollyOpinion
99 Civ. 0352 (TPG).
January 10, 2002
OPINION
Plaintiff brings this action pro se and in forma pauperis. The court is again considering whether it should dismiss the case sua sponte, pursuant to 28 U.S.C. § 1915(e).
Plaintiff is serving a state sentence of 20 years to life based upon his conviction for the murder of a three-year-old girl. He was convicted in Supreme Court, Bronx County, on March 12, 1971. He commenced serving his sentence that year.
The Complaint
The present action was commenced in June 1998. The portions of the complaint which are relevant at the present juncture relate to plaintiffs allegations that he has been denied parole on the basis of an incomplete record. The claim is that state law requires the Parole Board to consider both his presentence report and his entire prison record, and that in connection with plaintiffs parole applications the Parole Board did not have before it the presentence report or plaintiffs prison record covering the 16-year period 1971-1987. The complaint alleges that this violation of state law also amounted to a violation of his rights under the United States Constitution. The complaint contains claims regarding Parole Hearings in 1990, 1992, 1994, 1996 and 1998, although, as will be described, by virtue of the rulings by this court and the Court of Appeals all these claims have already been dismissed except as to 1998.
The complaint names 30 defendants. Of these, 26 are specifically named and 4 are John Doe defendants. The allegations about the parole denials are directed at members of the Parole Board and certain other persons who allegedly committed wrongdoing leading to the parole denials.
Prior Proceedings
By order dated January 19, 1999 this court sua sponte dismissed plaintiffs complaint.
Plaintiff appealed. In an unpublished opinion filed March 23, 2001, the Court of Appeals affirmed the District Court's dismissal of plaintiff's claims concerning the 1990, 1992, 1994 and 1996 parole denials, but remanded for further consideration of the claim regarding the 1998 parole denial. The court relied on the fact that the New York Supreme Court had vacated the 1998 parole denial for violation of state law in that the Parole Board did not have before it the presentence report and the full prison record. Plaintiff had transmitted this decision to the Court of Appeals. The Court of Appeals remanded for consideration of whether, in connection with the 1998 parole application, plaintiff had a liberty or property interest in having the Parole Board comply with state law, so that the case raised a due process issue. The court suggested that, on remand, the district court appoint pro bono counsel. Also, the Court of Appeals noted that apparently there had been parole denials subsequent to the one of 1998, and suggested that, on remand, the District Court should consider allowing plaintiff to amend his complaint to add claims about any such additional parole denials.
In his appeal brief plaintiff stated that there had been parole hearings on June 9, 1999 and March 2, 2000. Obviously these resulted in denial of parole.
Although plaintiff transmitted to the Court of Appeals the state court decision referred to above, which was handed down March 25, 1999, plaintiff failed to send to the Court of Appeals a subsequent ruling by the same judge, dated October 29, 1999, in which the judge found that the Parole Board had obtained the 16 years of prison records and that a diligent effort had been made to obtain the presentence report, but that the report could not be found. The judge ruled that the failure to have the presentence report (relating to a sentence imposed 30 years ago) was excused for purposes of holding a valid parole hearing. A new hearing had been held (obviously the one of June 9, 1999) and parole had again denied. The Court of Appeals did not have before it the October 29, 1999 state court ruling.
After the remand by the Court of Appeals, the District Court entered an order dated June 29, 2001. The court vacated the January 19, 1999 order with respect to plaintiffs claim concerning the 1998 denial of parole, so that this claim was reinstated in accordance with the Second Circuit opinion. However, in the June 29 order the court, sua sponte, dismissed the claims against two of the defendants, New York Supreme Court Justices Edward J. Greenfield and John N. Byrne, on the ground of judicial immunity. The court further dismissed the claims against defendants Leighton M. Jackson, Risa Sue Sugarman and Mark H. Snyder on the ground that they were private attorneys and, although acting as court-appointed counsel, their activities did not involve state action giving rise to a claim under 42 U.S.C. § 1983. The court further gave plaintiff leave to amend his complaint if he wished to add claims about parole denials subsequent to 1998. Finally, the court directed the Pro Se Clerk's Office to attempt to arrange pro bono counsel for plaintiff.
On October 3, 2001 plaintiff submitted an affirmation stating that he does not wish to amend the complaint. The Pro Se Clerk's Office has not obtained pro bono counsel to act for plaintiff, although the court has received word that an attorney is considering the case.
Discussion
The court has reviewed the matter in order to determine what should now be done in the case. For the reasons which will be explained, the court has now determined that it should act again sua sponte and dismiss the case.
As a preliminary matter, the court must note that the order of June 29, 2001 was in error insofar as it dismissed the claims against Risa Sue Sugarman and Mark H. Snyder on the theory that they were private attorneys. They are not named in the complaint as private attorneys. Sugarman is named as Chief of the Homicide Bureau of Bronx County and Snyder is named as attorney on the staff of Justice John N. Byrne, who himself was originally named as a defendant and was properly dismissed in the June 29 order. The basis used in the June 29 order for dismissing the case against defendants Sugarman and Snyder was erroneous, although the court will now proceed, on other grounds, to dismiss the case against them as well as against all other remaining defendants.
It is appropriate at this point to describe more fully the March 25, 1999 decision of Justice Sheridan regarding plaintiffs parole denials. This is the decision which is referred to in the Second Circuit opinion, although its date is mistakenly given as November 1998. The matter was before Justice Sheridan in an Article 78 proceeding, seeking review of the parole denials in 1990, 1992, 1994, 1996 and 1998. The judge ruled that the only Board action properly before him was the one of 1998. In dealing with the 1998 parole denial, which occurred in February of that year, the judge started by quoting the Parole Board ruling.
In the instant offense, murder, you beat to death the three year old daughter of your paramour, when the child wet the bed. You then placed pepper in the mouth of the five year old child who witnessed the killing. You continue, to deny responsibility for your criminal behavior. The absolute heinousness of your criminal conduct continues to make discretionary release inappropriate and incompatible with public welfare. For us to hold otherwise, would diminish the grievousness of your crime and so would undermine respect for the law. Parole now would be incompatible with public welfare.
Justice Sheridan voiced no disagreement with this statement of the Parole Board. However, the judge noted that state law required the Parole Board to consider, among other things, the inmate's presentence report and the institutional record. The Board had conceded that it did not have before it the presentence report or the inmate's institutional record for the 16-year period from 1971 to 1987, although it did have, and considered, the institutional record for the subsequent years.
Justice Sheridan remanded the matter to the Parole Board for a de novo determination of plaintiffs application for parole, and further directed that this proceeding should be held before a different panel of the Parole Board. The court directed that the Parole Board locate, and make part of plaintiffs parole record, the institutional records from 1971 through 1987, or at least make a diligent search therefor. The judge also directed that the Board obtain the presentence report, or obtain a reconstructed presentence report if the original could not be found.
The matter came before Justice Sheridan again by way of a motion made by plaintiff for an order directing compliance with the March 25, 1999 order or holding the Board in contempt. Justice Sheridan denied the motion in all respects in a decision dated October 29, 1999. By this time plaintiff had been reconsidered for parole by a different panel (according to plaintiff on June 9, 1999) and his application had been denied. The motion before the court resulted from the contention of plaintiff that the institutional record which had previously been missing had still not been found and there was still no presentence report.
The judge found that the Parole Board had complied with the March 25, 1999 order and that it had in fact obtained the institutional records for the years in question and had considered those records in the new hearing. In connection with the motion before him, the judge examined the institutional records, and his decision contained a detailed listing of them. As to the presentence report, the judge found that diligent efforts had been made to locate the report, but that the report did not exist. The judge further found that it was impossible to reconstruct a presentence report which was, or should have been, written nearly 30 years ago. Consequently, the judge excused the Parole Board from reviewing the presentence report when considering plaintiff for parole.
Justice Sheridan's ruling was appealed to the Appellate Division, Third Department, which affirmed the lower court in a decision dated April 19, 2001. The Appellate Division held that the Parole Board had complied with Justice Sheridan's order in holding the reconstituted hearing and agreed that the complete institutional record was before the Parole Board. The Appellate Division also held that it was within the lower court's discretion to excuse the Board from having the presentence report.Rodriguez v. New York State Div. of Parole, 723 N.Y.S.2d 561 (3d Dept. 2001).
On September 20, 2001 the New York Court of Appeals dismissed the motion for leave to appeal to that court, stating that the order sought to be appealed from did not finally determine the proceeding.
As described earlier, the only issue after the remand by the Second Circuit Court of Appeals to the District Court related to the 1998 parole denial and any subsequent parole denials if plaintiff amended his complaint, which he has not done. Thus, the only parole denial remaining to be dealt with is the one of 1998. The issue posed by the Court of Appeals for remand is whether the failure to comply with state law, as found by the state court, gives rise to a federal due process cause of action.
It is to be regretted that the Court of Appeals did not have before it the second ruling of Justice Sheridan of October 29, 1999. This ruling, together with the subsequent Appellate Division decision (which came down shortly after the Court of Appeals decision), shows that the Parole Board has remedied the problem about the prison records and has done all within its power with respect to the presentence report. The state courts have thoroughly examined both the facts and the law and have held that state law has been complied with and that a new parole hearing has been held based upon that compliance. The theory that a federal constitutional claim might be based on the Parole Board's failure to comply with state law (which was the possibility suggested by the Second Circuit in remanding the case) no longer merits consideration because the state courts have authoritatively held that the state law problem has been remedied. As to any possible independent federal constitutional cause of action, the only arguable remaining deficiency is the lack of the presentence report, and this, in and of itself, does not rise to the status of a constitutional violation in view of the circumstances earlier described. Also of decisive importance is that the 1998 parole decision is now academic. Plaintiff has been subsequently considered for parole on two occasions — in June 1999 and March 2000 — on which occasions parole has been denied. Plaintiff was given an opportunity to amend his complaint to assert claims about these parole denials and has not done so.
Conclusion
For the foregoing reasons the court holds sua sponte that the action is dismissed.
SO ORDERED.