Opinion
01 Civ. 1144 (TPG)
August 5, 2002
OPINION
This is a pro se action by a state prisoner. Defendants are members of the New York State Parole Board, except for defendant Hay who is an Assistant Attorney General of the State of New York, defendant Filion who is Superintendent of the Marcy Correctional Facility, and defendant Batista who is Deputy Superintendent of the Marcy Correctional Facility.
Plaintiff claims that in notices to him of adverse parole decisions dated August 11, 1998 and January 31, 2000, there were statements that a presentence report had been relied upon, but that these statements were false and that no such presentence report was before the parole authorities in either proceeding. Plaintiff further claims that in certain correspondence with him and with the New York City Department of Probation defendant Filion falsely referred to a presentence report. A similar allegation is made against defendant Batista. Plaintiff alleges that defendant Hay made certain statements in judicial proceedings about a presentence report, which were false because no such report existed at that time. Plaintiff seeks $9 million in damages against the members of the Parole Board; $9 million in damages against defendants Filion and Batista, and $5 million against defendant Hay.
For reasons which will be set forth hereafter, the court dismisses the action sua sponte under 28 U.S.C. § 1915(e) as frivolous. The court notes that it has received a letter dated May 28, 2002 from the Assistant Attorney General of New York urging dismissal. The court has also received an affirmation from plaintiff dated June 3, 2002 opposing dismissal. The court does not regard these communications as amounting to a full submission of a motion. Nevertheless, as already indicated, the court believes that the action should be dismissed as frivolous under § 1915(e).
This is a companion case to Rodriguez v. Greenfield, et al. (99 Civ. 0352), which needs to be described in some detail. In that case plaintiff alleged that he had been denied parole on the basis of an incomplete record, since the Parole Board had not considered his presentence report and his entire prison record. The complaint related to parole hearings in 1990, 1992, 1994, 1996 and 1998. On January 19, 1999 the District Court dismissed the action sua sponte. Plaintiff appealed. On March 23, 2001 the Court of Appeals in an unpublished opinion affirmed the District Court ruling except as to the 1998 parole hearing. The Court of Appeals remanded the matter on the question of whether, in connection with the 1998 hearing, there was a violation of the United States Constitution because of a failure to consider the presentence report and the entire prison record. Following the remand, the District Court dismissed the remanded claim sua sponte. Rodriguez v. Greenfield, 2002 U.S. Dist. LEXIS 389 (S.D.N.Y. 2002). The District Court relied on certain circumstances which plaintiff had failed to call to the attention of the Court of Appeals. These circumstances were that in state court proceedings there had been an order holding that the 1998 parole hearing was invalid, that there should be a new parole hearing, and that diligent efforts should be made to obtain the presentence report and the complete prison record. A new parole hearing was in fact held and the hitherto missing prison records were presented at the new hearing. However, the presentence report could not be found despite diligent efforts. After the new parole hearing plaintiff was again denied parole. In subsequent state court proceedings the court found no fault with the new hearing and with the denial of parole. The state court noted that the complete prison record had been obtained. As to the presentence report the court ruled that the Parole Board should be excused from having the presentence report, which had been prepared some 30 years earlier and which diligent efforts had not uncovered.
The District Court dismissed the remanded claim in the Greenfield action on the ground that any possible constitutional question had been obviated by the state administrative and court proceedings. The Court of Appeals ruled that an appeal would be frivolous.
In plaintiff's suit against Gailor et al. — the case now before the court — the complaint is that in certain notices and communications defendants incorrectly referred to the existence of a presentence report despite the fact that no such report was in hand. The precise claims are summarized earlier in this opinion.
It is surely true that the references to a presentence report were incorrect. However, plaintiff does not allege any valid federal constitutional claim arising from such errors. Plaintiff's real problem is his failure to obtain parole and any possible cloud on the parole proceedings has been removed.
As to the incorrect statements, the Parole Board wrote plaintiff on February 11, 2000 stating that all references to a presentence report being considered by the Parole Board would be redacted from the records.
Since there is no allegation in the complaint which could possibly rise to the level of a valid claim under the Constitution or any other federal law, the action is dismissed.
SO ORDERED.