Opinion
04 CV 3901 (TPG).
May 17, 2006
OPINION
Pro se plaintiff Gilbert Parker brings this action under 42 U.S.C. § 1983, alleging that he was wrongfully detained on a parole warrant, and later, while in the custody of the New York City Department of Corrections, that he was denied privacy or adequate medical care.
Defendants Elliot Spitzer, Ronald Friedman, and Alice Chin (the "State Defendants") have moved to dismiss the action for failure to state a claim, or in the alternative, on the basis that they are entitled to absolute or qualified immunity. The remaining defendants, S. Fitzpatrick, Jane Doe, and Captain Simon are employees of the City of New York, and have filed an answer to the complaint but have not otherwise moved.
The motion is granted as to defendant Spitzer but denied as to defendants Chin and Friedman.
THE COMPLAINT
The following is a summary of the allegations of the amended complaint and documents appended thereto.
Parker was convicted of third-degree attempted burglary and sentenced to one year and six months to three years' imprisonment. On October 10, 2002, Parker was released to parole supervision. From documents appended to the complaint, it appears that Parker's maximum expiration date, — i.e., the date on which his sentence, and thus his parole supervision, was to end, was April 3, 2003.
Chin was Parker's parole officer. Friedman was a Senior Parole Officer and Chin's direct supervisor. On January 31, 2003, Chin and Friedman issued a parole warrant for Parker's arrest. Although the warrant itself is not attached to the complaint, an untitled Division of Parole report prepared by Chin in connection with the issuance of the warrant is attached to the complaint. The report, dated January 30, 2003, and signed by both Chin and Friedman, indicates that a parole warrant was to be issued for Parker for a number of alleged parole violations, the details of which are not relevant to the present complaint. The report also indicated that Parker's whereabouts were then unknown. The warrant was thus not served at that time.
On April 21, 2003, almost three weeks after Parker's April 3, 2003 maximum expiration date on which his parole supervision was to end, Parker was stopped by a New York City Police Department ("NYPD") officer for possessing an open container of beer in a public place. The officer stated to Parker "If you do not have any outstanding warrants, then I'm going to issue you a summons and you can go." The officer then ran Parker's name through the NYPD computer system, which alerted him to the outstanding parole warrant that had been issued by Chin and Friedman. Parker was then detained on the warrant by the NYPD and held at Bronx Central Booking.
N.Y Admin. Code § 10-125(b) makes it an offense to possess an open container containing an alcoholic beverage in any public place with intent to consume it.
According to the complaint, no one from the New York State Division of Parole executed the warrant, or otherwise took any action with respect to the warrant, while Parker was detained. On April 25, 2003, Parker was arraigned only on the charge of possessing alcohol in a public place, and the charge was dismissed.
The complaint alleges that, upon his release, Parker made numerous attempts to contact Chin and Friedman but was unable to do so.
On May 23, 2003, Parker was again stopped by an NYPD officer for possessing an open container of beer in a public place. This officer also stated to Parker that if Parker had no outstanding warrants he would be issued a summons and would be free to go. The officer then conducted a name check on the NYPD computer system, which again turned up the same outstanding parole warrant that had been issued by Chin and Friedman. Parker was again detained, and this time arraigned on the warrant, after which he was held at the Bernard B. Kerik Complex.
It is important to note that the complaint does not allege that either Chin or Friedman was notified of Parker's arrest, detention, or arraignment, or that they were in any way personally involved in such events, other than by originally issuing the January 31, 2003 warrant. Rather, the complaint seeks to hold Chin and Friedman liable on the theory that Parker's detention was "in accordance with parole officer A. Chin . . . and senior parole officer R. Friedman who issued said warrant on January 31, 2003."
On May 29, 2003, Parker was given a Notice of Violation by the New York State Division of Parole, a copy of which is appended to the complaint. The Notice of Violation, which contains no indication of who issued it, informed Parker that he was being charged with violating the conditions of release to parole supervision and advised him that a preliminary hearing would be held on June 6, 2003 to determine whether probable cause existed for the charged violations. Neither the complaint nor defendants' moving papers indicate whether a preliminary hearing was in fact held or the outcome of such hearing.
The complaint alleges that, while being held at the Bernard B. Kerik Complex, Parker was denied access to adequate medical care, and was not permitted to consult with his physician in private, without the presence of corrections officers. These claims are not asserted against the State Defendants and are therefore not relevant to the present motion.
On June 17, 2003, Parker filed a petition for habeas corpus in New York State Supreme Court. The basis for the petition was that Parker was not, at the time of either arrest, provided with proper notice of a preliminary hearing within three days of the execution of his parole warrant, as required under N.Y. Exec. Law § 259-i. At the July 1, 2003 hearing on Parker's state habeas petition, the Assistant Attorney General stated that the Attorney General's office did not wish to contest Parker's petition and that he should be released. Parker was released on July 3, 2003.
DISCUSSION
Defendant Spitzer
Personal involvement of a defendant in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995);Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994). The personal involvement of a supervisory defendant may be shown by evidence that:
(1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring.Wright, 21 F.3d at 501; Colon, 58 F.3d at 873. See also Avers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985) (holding that the doctrine of respondeat superior does not apply in actions under § 1983).
Parker does not allege any circumstance that would amount to personal involvement by Spitzer in the alleged violations of Parker's constitutional rights. The motion by Spitzer to dismiss the complaint is therefore granted.
Defendants Chin and Friedman
The court construes the complaint as asserting that Chin and Friedman violated Parker's constitutional rights by leaving extant the July 31, 2003 parole warrant long past his maximum expiration date, and thereby causing his arrest and detention, on two occasions, for respective periods of four and forty-one days.
New York has elaborate procedures for punishing parole violations. These procedures are generally set forth in N.Y. Exec. Law § 259-i.
If a parole officer has reasonable cause to believe that a parolee has violated one or more conditions of his parole, the parole officer, in consultation with a senior parole officer may issue a warrant for the parolee's arrest. Id. § 259-i(3)(a)(i). The warrant may be executed, — i.e., the parolee may be arrested, by any parole officer, police officer, or any other officer authorized to serve criminal process. Id. § 259-i(3)(a)(iii). Within three days of the execution of a parole warrant, the alleged violator must be given a Notice of Violation advising him of the time, place and purpose of a preliminary hearing, as well as the violations charged and certain rights to which he is entitled at the preliminary hearing. Id. § 259-i(3)(c)(3). The parolee is entitled to a preliminary hearing within fifteen days to determine whether probable cause exists to believe the parolee has violated one or more of his parole conditions in an important respect. Id. § 259-i(3)(c)(i).
If the hearing officer determines that no probable cause exists to believe the parolee violated his conditions of parole then he is immediately released and restored to parole supervision. Id. § 259-i(3)(c)(7). If the hearing officer determines that probable cause does exist to believe that the parolee has violated the parole conditions, he remains in detention and a final revocation hearing must then be scheduled within ninety days of such determination. Id. § 259-i(3)(f)(i).
The statute further requires that under certain circumstance a parolee must be declared "delinquent." Id. § 259-i(3)(d)(i). The effect of a declaration of delinquency is set forth in N.Y. Penal Law § 70.40, which provides that "the declaration of delinquency shall interrupt the person's sentence as of the date of the delinquency and such interruption shall continue until the return of the person to an institution under the jurisdiction of the state department of correctional services." Id. Where a sentence has been interrupted by a declaration of delinquency, the term of the defendant's sentence is then extended, beyond the original maximum expiration date, for a period of time equal to the interruption period. See Tineo v. N.Y. State Div. of Parole, 14 A.D.3d 949 (N.Y.App.Div. 3d Dep't 2005).
Absent a declaration of delinquency, a parolee's sentence may not be extended beyond his maximum expiration date. N.Y. Comp. Codes R. Regs. tit. 9, § 8004.3. Furthermore, if at the subsequent final revocation hearing, the charges that lead to the declaration of delinquency are dismissed, the delinquency is "canceled," — i.e., the original maximum expiration date is reinstated. N.Y. Exec. Law § 259-i(3)(f)(ix).
Division of Parole regulations provide that a declaration of delinquency may only be issued by a parole board member or by a supervising parole officer, and even then, only upon the occurrence of one of the following: (1) the parolee has waived the preliminary hearing; (2) a finding of probable cause at the preliminary hearing; (3) a finding by a member or supervising parole officer that there is reasonable cause to believe the parolee has absconded from supervision; or (4) a finding that the parolee has been convicted of a new crime while under his present parole. N.Y. Comp. Codes R. Regs. tit. 9, § 8004.3.
In Calhoun v. New York State Div. of Parole Officers, 999 F.2d 647, 653 (2d Cir. 1993), the Second Circuit considered a parolee's claim that his due process rights had been violated when he was incarcerated for five days beyond his maximum expiration date without being given a final revocation hearing. In that case, the parolee, Calhoun, was arrested on charges of disorderly conduct and assault on April 11, 1985, approximately two months prior to his June 9, 1985 maximum expiration date. He was released on bail the same day. A parole warrant was issued on April 17, 1985, and Calhoun was taken into custody and incarcerated on that day. Calhoun waived his right to a preliminary hearing, a waiver that is equivalent under N.Y. Exec. Law § 259-i to a finding of probable cause that the violation had occurred, but did not waive his right to a final revocation hearing.
On May 14, 1985, the Commissioner of Parole declared Calhoun delinquent as of April 11, 1985, the date he allegedly committed his new crime, and directed the local parole office to arrange a final revocation hearing and to return Calhoun to a correctional facility unless the charged violation was dismissed as the result of the hearing. Pursuant to N.Y. Penal Law § 70.40, the declaration of delinquency interrupted Calhoun's sentence beginning April 11, 1985, and the interruption continued until April 17, 1985, — i.e., the date on which he was returned to an institution under the jurisdiction of the New York State Department of Corrections, resulting in a total delinquency period of six days.
A Division of Parole policy dictated that the period of time to be added to a delinquent parolee's sentence is one day less than the period of delinquency. Thus, the Division of Parole determined that Calhoun's sentence should be extended by five days, — i.e., the six days of delinquency minus one because of the Division's policy, leaving Calhoun with a new maximum expiration date of June 14, 1985. This extension was, of course, subject to cancellation pending the results of Calhoun's final revocation hearing.
In Calhoun's case, however, no final revocation hearing was held. Because Calhoun's adjusted maximum expiration date fell within the ninety-day period within which the final revocation hearing had to be held, a Division of Parole policy dictated that Calhoun be held for the additional five days and then "administratively discharged" without ever receiving a final revocation hearing. The court held that Calhoun's due process rights had been violated because the five-day extension had been applied without ever affording Calhoun a final revocation hearing. Id. at 653-54.
On the current record, the court finds that it would be premature to dismiss Parker's constitutional claim. Under clearly established New York law, Parker's sentence could not be extended for any period of time unless he was declared delinquent by the parole board upon a finding of one of the four circumstances listed above. In the present case, there is no evidence, and defendants do not assert, that Parker was declared delinquent or indeed that he ever received the required preliminary hearings. Parker alleges that he was nevertheless twice arrested and detained, on the basis of the outstanding parole warrant issued by Chin and Friedman, both times after his maximum expiration date — i.e., the date on which his sentence was to have been completed.
The complaint does not contain specific allegations of what role, if any, Chin and Friedman played in allowing the parole warrant to remain extant after Parker's maximum expiration date. However, the complaint is surely intended to allege that Chin and Friedman were responsible for this. This is not an unreasonable claim, since Chin and Friedman originally issued the warrant. The court declines to dismiss the complaint against Chin and Friedman for failure to state a claim.
Qualified Immunity
Chin and Friedman argue that they are entitled to qualified immunity for their conduct in connection with Parker's arrest and detention.
Under the well-known doctrine of qualified immunity, public officials are protected from civil liability for actions taken in their official capacity if those actions were objectively reasonable in light of clearly established law. Morris-Hayes v. Bd of Educ., 423 F.3d 153, 158 (2d Cir. 2005). To be clearly established, the contours of the right claimed to have been violated "must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640 (1987). If Chin and Friedman intentionally and wrongfully allowed a parole warrant to remain outstanding after Parker's sentence was complete, resulting in his improper arrest and detention, then their actions were not objectively reasonable, and the doctrine of qualified immunity would not apply. Therefore, the complaint cannot be dismissed on the grounds of qualified immunity at the present time.
CONCLUSION
The motion to dismiss by defendant Spitzer is granted. The motion to dismiss by defendants Chin and Friedman is denied.
SO ORDERED