Ovalle v. Suffolk County et al

Filing 27

MEMORANDUM DECISION AND ORDER dated 8/29/24 re: defendants' motions to dismiss are GRANTED; 19 Motion to Dismiss; 21 Motion to Dismiss. ( Ordered by Judge Brian M. Cogan on 8/29/2024 ) *Forwarded for judgment. (RG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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WARREN A. OVALLE,
:
: MEMORANDUM DECISION AND
Plaintiff,
: ORDER
:
- against : 21-cv-5371 (BMC)
:
:
:
SUFFOLK COUNTY, et al.,
:
Defendants.
:
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COGAN, District Judge.
Plaintiff Warren Ovalle brings this action under 42 U.S.C. § 1983 and related statutes for
unlawful imprisonment arising from his arrest on two parole detainer warrants, contending that
the warrants were invalid. For a host of reasons, his claims fail, and defendants’ motions to
dismiss are granted.
BACKGROUND 1
In 2010, Ovalle was convicted of second-degree assault and second-degree attempted
robbery. The charges arose from the detention and beating of a victim by Ovalle and his codefendant, Robert Akre. 2 Ovalle was sentenced cumulatively to six years’ incarceration and five
years of post-release supervision. In 2015, he was released from custody early, at which time he
agreed in writing to both standard and special conditions of post-release supervision.

The background of this case is based on the complaint and certain public record documents submitted by
defendants giving additional context and to which plaintiff has not objected. See Koch v. Christie’s Int’l PLC, 785
F. Supp. 2d 105, 112 (S.D.N.Y. 2011) (citing Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir.
1991))
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It appears that the victim had some familial relationship with Akre.

There are two conditions that plaintiff allegedly violated and that led to this lawsuit,
although both conditions covered the same conduct. One was the standard condition not to “be
in the company or fraternize with any person [plaintiff] know[s] to have a criminal record.” That
included his former co-defendant, Akre. The second was a special condition that expressly
prohibited him from having any contact with Akre. Plaintiff also acknowledged in writing that
these conditions (and the other conditions of release not material here) would remain in effect
“until the termination of his legal period of supervision.” 3 The standard conditions of release
indicated that the maximum term of plaintiff’s post-release supervision ended on March 19,
2019, while the special conditions indicated that the maximum term ended on March 17, 2019.
On September 18, 2017, the defendant New York State Department of Corrections and
Community Services (“DOCCS”) issued a warrant for plaintiff’s arrest (the “First Warrant”), and
plaintiff was taken into custody. The warrant was based on a Violation of Supervised Release
Report (the “First VOSRR”) prepared by plaintiff’s probation officer and approved by that
probation officer’s supervisor. It contained 23 charges arising out of, among other violations,
plaintiff’s continued contact with Akre, his refusal to follow his parole officer’s directions not to
contact Akre, lying to his Parole Officer about his extensive contact with Akre, and weapons and
drug possession.
On September 25, 2017, a preliminary parole revocation hearing was held on two of the
charges in the First VOSRR (charges 3 and 10), each alleging that plaintiff met Akre on different

Plaintiff alleges that the special conditions were unenforceable because his parole officer “never properly
reviewed” them with him. But he does not contest the validity of the standard conditions.

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dates. 4 The hearing officer found no probable cause as to charge 3 but found probable cause as
to charge 10.
On October 30, 2017, prior to the final revocation hearing on charge 10, plaintiff’s parole
officer filed a Supplementary Violation of Release Report (the “SVORR”), adding charges 24-29
to the First VOSRR. That report alleged that plaintiff, while being held on the First Warrant in
the Suffolk County Jail, had multiple, additional meetings with Akre during visiting hours. The
SVORR also added an additional charge for possession of dangerous instruments that occurred
prior to his arrest on the First Warrant.
On November 2, 2017, while still awaiting his final revocation hearing, plaintiff filed a
motion for writ of habeas corpus through counsel in state court (the “First Habeas”) to challenge
the hearing officer’s decision on probable cause as to charge 10. Plaintiff submitted evidence
which he claimed demonstrated, inter alia, that the testifying witness supporting Charge 10
never identified plaintiff and Akre and that the charge was false because Akre had an alibi for
their alleged meeting on that date. On November 29, 2017, the First Habeas court, based on this
new evidence, found a lack of probable cause for the remaining charge and vacated the First
Warrant on November 30, 2017.
As plaintiff was preparing to depart from custody – indeed, as the corrections officers in
his facility were preparing to discharge him – DOCCS served plaintiff with a new warrant of
arrest (the “Second Warrant”). Thus, his custody continued. The Second Warrant was supported

A preliminary parole revocation hearing is essentially a probable cause hearing to determine if the matter should
proceed to a final revocation hearing. Under New York law, the parole officer does not need to establish probable
cause as to all the charges in the Violation of Supervised Release Report – one charge is sufficient. See N.Y. Exec.
Law § 8005.7(e) (McKinney 2023). If probable cause is found, then the parolee can remain in custody. This does
not mean the other charges have been abandoned. Those charges may still be prosecuted at the final revocation
hearing. See N.Y. Exec. Law § 8005.19 (McKinney 2023).
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by a Violation of Supervised Release Report that had 95 charges (the “Second VOSRR”). Some
of those charges were previously stated in the SVORR, alleging meetings between plaintiff and
Akre while plaintiff was in custody on the First Warrant.
Plaintiff had his preliminary revocation hearing on the Second Warrant on December 13,
2017, and DOCCS went forward with charge 44, which alleged that plaintiff had visited with
Akre while plaintiff was in custody on the First Warrant. The hearing officer found probable
cause for that charge based on witness testimony, a visitor log, and video evidence of the visit.
On January 8, 2018, plaintiff filed another petition for a writ of habeas corpus (the
“Second Habeas”) to challenge (this time) the hearing officer’s findings at the preliminary
hearing on the Second Warrant. His primary argument was that he could not be charged with
parole violations while he was in custody because he could not be on parole while he was in
custody. He also argued that the Second Warrant re-asserted the charges contained in the
Supplemental Charges. The habeas court rejected both arguments on January 31, 2018. As
expressed in plaintiff’s order of release, the habeas court found that, under New York law, the
terms of plaintiff’s parole remained in force until his parole term ended on March 19, 2020,
whether he was in custody or not. Plaintiff attempted to appeal this ruling, but his attempt was
procedurally defective, and the Appellate Division rejected it.
Plaintiff went to his final revocation hearing on the Second VOSRR on March 1, 2018.
The hearing officer sustained 39 of the 116 charges against him. 5 Plaintiff reprised his argument
that he could not violate his conditions of parole while in custody on the First Warrant. The
Appeals Unit rejected that argument and affirmed.

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The Second VOSRR initially included 95 charges. An additional 21 charges were added later.

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Back to the habeas court went plaintiff (the “Third Habeas”), filing another petition on
August 5, 2019. He again asserted the same argument rejected by the Second Habeas court –
that he was not bound by the terms of his parole while he was in custody.
A review of the transcript of the Third Habeas proceeding shows that the assigned judge
became confused by the multitude of prior administrative and judicial proceedings. 6 He did not
realize that the hearings on the First Warrant pertained to different, unrelated charges from the
ones heard on the Second Warrant. He also did not recognize that at plaintiff’s preliminary
revocation hearing on the Second Warrant, the habeas court had rejected plaintiff’s theory that
conditions of parole do not apply while the parolee is in custody on a parole violation, and that
the same theory was again rejected when plaintiff administratively challenged the decision in his
final revocation hearing on the Second Warrant. The Third Habeas court, effectively skipping
over that the Second Warrant was not before the First Habeas Court, and that the Second Habeas
Court had rejected plaintiff’s theory, believed that DOCCS was trying to do an “end run” on the
First Habeas court’s ruling that DOCCS had failed to show probable cause on charge 10 of the
First Warrant. He therefore granted habeas relief as to the Second Warrant on October 2, 2019,
and plaintiff was released.
Plaintiff then brought this action. In essence, plaintiff is claiming that the First Warrant
and Second Warrant violated his rights under the Fourth and Fifth Amendments because they
were based on false statements. As to the First Warrant, the only thing plaintiff relies on is the
habeas decision finding lack of probable cause as to charge 10. As to the Second Warrant,

Not that plaintiff’s lawyer at the Third Habeas was of any help in explaining things to the Third Habeas judge. She
told the Third Judge: “What’s before the judge [i.e., the Third Habeas judge] is simply visits to the Suffolk County
Jail. Any other allegation of anything had been dismissed by [the First Habeas judge] in a writ of habeas corpus.”
(emphasis added). As shown above, that was flat out wrong – the violations heard on the First Warrant had nothing
to do with the violations heard on the Second Warrant.

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plaintiff alleges that by realleging violations that were or could have been raised in the First
Warrant, his due process rights under the Fourteenth Amendment and his liberty rights under the
Fifth Amendment were violated.
The 17 defendants named in the amended complaint fall into two groups: (1) State
agencies and officials including DOCSS, the Acting Commissioner and Regional Director of
DOCSS, the Office of Special Investigation and an investigator, an Assistant Attorney General
and the Office of the Attorney General, and parole officers; and (2) county entities and officials,
including Suffolk County, Suffolk County Sheriff’s Department, and John Doe Sheriff’s
Department Correctional Officers, #1-10.
DISCUSSION
The amended complaint, like the original complaint, is a hodgepodge of claims, a number
of which plaintiff has either expressly withdrawn or withdrawn by non-opposition in responding
to defendants' motions to dismiss those claims. See Black Lives Matter v. Town of Clarkstown,
354 F. Supp. 3d 313, 328 (S.D.N.Y. 2018). The net of this is that the claims against DOCCS,
Acting DOCCS Commissioner Annucci, Regional DOCCS Director Davies, the Office of
Special Investigations, Assistant Attorney General Pack, the Office of Attorney General, and the
individual State defendants Owens-Skrodance, Torres, Botwinick, Jenkins, Hnis, and Delrio are
dismissed. The claims against Suffolk County, Suffolk County Sheriff’s Department, and the
John Doe defendants are also dismissed. The only defendants remaining are Parole Officer
Hamlette, Senior Parole Officer Juste, and Investigator Mencarelli, and the only claims
remaining against them are under 42 U.S.C. §§ 1983 and 1985, based on false arrest and
imprisonment, false charges, and due process violations.

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For the following reasons, plaintiff’s false arrest and imprisonment claims are timebarred, and the rest of his allegations do not state a claim on which relief can be granted.
I.

False Arrest and Imprisonment
The statute of limitations for constitutional claims under 42 U.S.C. §§ 1983 and 1985 is

determined by the statute of limitations for analogous torts under applicable state law. Owens v.
Okure, 488 U.S. 235, 249-51 (1989). New York law sets that statute of limitations at three years.
See Pearl v. City of Long Beach, 296 F.3d 76, 79 (2d Cir. 2002); Cornwell v. Robinson, 23 F.3d
694, 703 (2d Cir. 1994). Although state law provides the length of time to bring a claim once it
accrues, the date of accrual is a matter of federal law. See McDonough v. Smith, 588 U.S. 109
(2019). Under federal law, a § 1983 claim accrues “when the plaintiff knows or has reason to
know of the injury which is the basis of his action.” Singleton v. City of New York, 632 F.2d
185, 191 (2d Cir. 1980). Applying this standard, the Supreme Court has held that the statute of
limitations begins to run on § 1983 false arrest and imprisonment claims when the plaintiff is
“held pursuant to [legal] process – when, for example, he is bound over by a magistrate or
arraigned on charges.” Wright v. Rutulante, No. 16-cv-10068, at *4 (S.D.N.Y. Mar. 27, 2018)
(quoting Wallace v. Kato, 549 U.S. 384, 389 (2007)); see also Watson v. United States, 865 F.3d
123, 131 (2d Cir. 2017); Lynch v. Suffolk Cnty. Police Dept., Inc., 348 F. App’x 672, 675 (2d
Cir. 2009).
This plainly bars any claims for false arrest and imprisonment arising from plaintiff’s
arrest on the First Warrant. Plaintiff was arraigned on the charges in the First Warrant on
September 25, 2017 and on the charges in the Second Warrant on December 13, 2017. Yet
plaintiff did not file his complaint until September 28, 2021. Further, his argument that he “was
not aware that his due process rights were violated and that he was unlawfully confined until [the
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Third Habeas court] granted his Writ of Habeas Corpus” flies in the face of the complaint and
settled law. 7 Of course he was aware. Plaintiff’s writ to the Third Habeas Court advanced the
same set of arguments that he used to challenge the administrative determination and that he
repeated in his writ to the Second Habeas court. By January 31, 2018, plaintiff had made these
same factual and legal arguments multiple times in front of multiple tribunals. This is not a
“discovery” accrual; by January 31, 2018, plaintiff had actual knowledge of all the facts and law
that he now relies upon to attack the Second Warrant. And, again, the law is clear that the statute
of limitations accrued when he was arraigned on the Second Warrant on December 13, 2017.
In the alternative, plaintiff combines two arguments to try to toll the statute of limitations
beyond the date that he commenced this action. First, he seeks to invoke a statutory toll. He
relies on the Executive Orders of the Governor of New York that tolled all statutes of limitations
due to the pandemic. See 9 NYCRR § 202.8; Paul v. Capra, No. 20-cv-5154, 2022 WL 992845,
ay *6 (S.D.N.Y. March 31, 2022). Those Orders, however, tolled statutes of limitations for only
228 days, leaving plaintiff well short. His false-arrest and imprisonment claims related to the
Second Warrant, which would have expired on December 13, 2020, expired on July 29, 2021,
nearly two months before he filed this action.
Plaintiff seeks to close that gap by relying on equitable tolling. “To qualify for [equitable
tolling,] the [plaintiff] must establish that extraordinary circumstances prevented him from filing
his [claim] on time, and that he acted with reasonable diligence throughout the period he seeks to
toll.” Watson v. United States, 133 F. Supp. 3d 502, 521 (E.D.N.Y. 2015) (alterations in
original) (quoting Phillips v. Generations Fam. Health Ctr., 723 F.3d 144, 150 (2d Cir. 2013)).

Additionally, plaintiff erroneously states that Third Habeas court granted plaintiff’s writ on October 11, 2019. The
transcript of the hearing and order granting relief are both dated October 2, 2019.

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The crux of the inquiry is “how severe an obstacle it is for the [person] endeavoring to comply
with . . . [the] limitations period.” Dillon v. Conway, 642 F.3d 358, 363 (2d Cir. 2011) (quoting
Diaz v. Kelly, 515 F.3d 149, 154 (2d Cir. 2008)).
Plaintiff does not come close to meeting the standard for equitable tolling. He relies on
the fact that he was vigorously litigating his multiple habeas corpus proceedings to show that he
exercised due diligence in pursuing his claims. But equitable tolling is afforded to plaintiffs who
demonstrate an extraordinary inability to pursue a claim, not an ability to pursue a claim. In
other words, the fact that nothing stopped plaintiff from so aggressively pursuing his other
claims administratively and in court shows that there is no reason for his delay in commencing
this action. And his conclusory assertions about impediments such as incarceration and lacking
access to counsel do not constitute extraordinary circumstances. See Cotto v. Pabon, No. 07-cv7656, 2008 WL 4962986, at *12 (S.D.N.Y. Nov. 20, 2008) (collecting cases). Equitable tolling
thus does not apply, and plaintiff’s claims premised on false arrest and imprisonment are timebarred.
II.

Remaining Allegations
Plaintiff’s remaining allegations shed little light on the nature of his other §§ 1983 and

1985 claims. He asserts only that these claims arise out of “due process” and “false charges,”
and his opposition to defendants’ motions is not helpful.
To the extent that plaintiff meant to bring a substantive or procedural due process claim,
he has not done so adequately. The Supreme Court disfavors relying on substantive due process
where, as here, the Fourth Amendment affords protection. See Albright v. Oliver, 510 U.S. 266,
274 (1994); Jackson ex rel. Jackson v. Suffolk Cnty., 87 F. Supp. 3d 386, 399 (E.D.N.Y. 2015).
As for procedural due process, New York provides ample appellate remedies (of which plaintiff
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availed himself), and plaintiff has not alleged that these remedies are constitutionally deficient.
Plaintiff is accordingly not entitled to relief under § 1983. See Chase Grp. All. LLC v. New
York Dep’t of Fin., 620 F.3d 146, 152 (2d Cir. 2010).
To the extent that plaintiff’s § 1983 claim is premised on false charges, he runs into
similar issues. The Second Circuit has made clear that the filing of false charges alone, without
some other deprivation of a liberty interest, is not a constitutional violation. See Freeman v.
Rideout, 808 F.2d 949, 953 (2d Cir. 1986). Construed most favorably to plaintiff, his “false
charges” allegations could be understood as an attempt to plead a gestalt malicious-prosecution
claim. Of course, they could just as easily be understood as an “inaptly expressed claim for false
arrest,” Plonka v. Brown, 2 F. App’x 194, 196 (2d Cir. 2001), which would be time-barred. But,
out of an abundance of caution, I will treat them as akin to a malicious prosecution claim under §
1983 and conspiracy to commit malicious prosecution under § 1985.
“A § 1983 claim for malicious prosecution accrues when the prosecution terminates in
the plaintiff's favor.” Olaizola v. Foley, 797 F. App’x 623, 625 (2d Cir. 2020). Here, then, any
malicious prosecution claims arising out of the First Warrant would have accrued on November
30, 2017, the date on which the First Writ was granted, and any arising out of the Second
Warrant would accrue on October 2, 2019, the date on which the Third Writ was granted. A
malicious-prosecution claim relating to the Second Warrant would have therefore been timely.
Even so, the amended complaint fails to state sufficient facts to support such a claim.
In support of his § 1985 claim, plaintiff has failed to allege any facts that could provide a
“basis supporting a meeting of the minds” regarding the alleged conspiracy, see Webb v. Goord,
340 F.3d 105, 110 (2d Cir. 2003), or a basis supporting discriminatory animus, see Manbeck v.
Micka, 640 F. Supp. 2d 351, 382 (S.D.N.Y. 2009). The closest the complaint comes is when it
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asserts that defendants “formed an agreement to violate [plaintiff’s] civil and due process rights,”
that defendants acted “maliciously with the intent to injure” plaintiffs, and that defendants
“implemented systemic racism.” These statements, however, are nothing more than legal
conclusions, and “[c]omplaints containing only conclusory, vague, or general allegations of a
conspiracy to deprive a person of constitutional rights will be dismissed.” Brito v. Arthur, 403 F.
App’x 620, 621 (2d Cir. 2010).
Likewise, in support of his § 1983 claim, plaintiff has not pled particularized facts which
could support a finding of “actual malice.” Stampf v. Long Island R.R., 761 F.3d 192, 198 (2d
Cir. 2014) (“To establish a malicious prosecution claim . . . a plaintiff must prove (1) the
initiation or continuation of a criminal proceeding against plaintiff; (2) termination of the
proceeding in plaintiff's favor; (3) lack of probable cause for commencing the proceeding; and
(4) actual malice as a motivation for defendant's actions.”). Although at various points the
amended complaint lodges general accusations of racism, like allegations that the defendants
were “motivated by [plaintiff’s] race and skin color,” it does not point to any specific facts that
make such accusations plausible. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007). Therefore, these claims are dismissed.
CONCLUSION
Defendants’ motions to dismiss are granted.
SO ORDERED.
______________________________________
U.S.D.J.
Dated: Brooklyn, New York
August 29, 2024

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