Parker v. New York State Division of Parole et al

Filing 140

OPINION: The court denies plaintiff's motion for summary judgment and grants defendants Chin and Friedman's cross-motion for summary judgment. In addition, the court denies plaintiff's motion for default judgment against defendants Cieslak and Dibenedetto. This opinion resolves all outstanding motions in this case. (As further set forth in this Opinion) (Signed by Judge Thomas P. Griesa on 3/29/2016) (kl)

·USDCSDNY
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

.DOCUMENT
..ELECTRONICAlLY FILED
.,, DOC #: -~~:--:-:::··~DATE f1LED: 3-2-9 'lk
t
l!:::;,:

t

GILBERT PARKER,
Plaintiff,
04-cv-390 1 (TPG)

V.

OPINION

NEW YORK STATE DIVISION OF
PAROLE, et al.,
Defendants.

Pro se plaintiff Gilbert Parker brings this action under 42 U.S.C.

§ 1983, alleging that he was unlawfully detained on a parole warrant.

Plaintiff has moved for summary judgment against defendants Alice Chin
and Ronald Friedman, who, in turn, have cross-moved for summary
judgment. For the reasons that follow, the court denies plaintiff's motion
for summary judgment and grants defendants Chin and Friedman's
cross-motion for summary judgment.
In addition, plaintiff has moved for default judgment against
defendants John Cieslak Jr. and Angela Dibenedetto.

Because Cieslak

and Dibenedetto have not been properly served, the court denies
plaintiff's motion for default judgment.

1

t

"'-~~·.---,-~
1::: ·: ·-;::. . ' )

Facts
The facts set forth below are taken from various official records,
declarations submitted by the parties, and transcripts from the
depositions of Parker, Chin, and Friedman.
Plaintiff was convicted of third-degree attempted burglary in New
York state court. On June 26, 2000, he was sentenced to a minimum of
one year and six months and a maximum of three years in prison. He
began serving his sentence on July 18, 2000.

On December 5, 2001,

plaintiff was released to parole supervision. A week later, he absconded
to Georgia, in violation of the terms of his parole. He was arrested in
Georgia on June 1, 2002, and extradited to New York for a parole
revocation hearing.

Following the hearing, plaintiff was declared

delinquent and sentenced to four months in prison for absconding to
Georgia.
On October 16, 2002, plaintiff was again released to parole
supervision to complete as a parolee the remainder of his sentence for
his underlying offense. At the time of his release, plaintiff’s maximum
expiration date—that is, the date on which his sentence, and thus his
parole supervision, was to end—was April 3, 2003.

Upon plaintiff’s

release, he was supervised by Parole Officer Alice Chin, and her
immediate supervisor, Senior Parole Officer Ronald Friedman, both
defendants in this case.

2

What followed was a series of five parole violations that resulted in
plaintiff being declared delinquent. First, on January 2, 2003, plaintiff
left his approved residence without Chin’s knowledge or authorization.
Then, on January 12, 2003, plaintiff was arrested for drinking a bottle of
beer on a subway train and charged with disorderly conduct and
resisting arrest. Plaintiff pleaded guilty to those charges, and committed
yet another violation by failing to notify Chin of the arrest. Fourth, on
January 23, 2003, plaintiff missed a scheduled meeting with Chin.
Finally, the following day, plaintiff did not attend his mandatory drug
treatment program.
Because plaintiff had again absconded, Chin and Friedman issued
a parole warrant for plaintiff’s arrest on January 30, 2003. Plaintiff was
also declared delinquent as of January 2, 2003, the date of the first of
the January violations. Upon being declared delinquent, plaintiff ceased
being credited for time he owed on his prison sentence—that is, the
running of his sentence was suspended.

Thus, the three months and

one day that he owed on his sentence as of January 2 was tolled until he
either reported to parole or was otherwise in parole custody.
Effective March 20, 2003, plaintiff’s case was transferred to a
special unit within parole that searches for absconders. Senior Parole
Officer Angela Dibenedetto and Parole Officer John Cieslak Jr. of the
Absconder Search Unit took over the case and the responsibility for

3

enforcing the warrant. After this transfer, Chin and Friedman were no
longer involved in plaintiff’s case.
On April 21, 2003, plaintiff was stopped by a New York City Police
Department (“NYPD”) officer for possessing an open container of beer in a
public place. According to plaintiff, the officer told plaintiff, “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 plaintiff’s name through
the NYPD computer system, which alerted the officer to plaintiff’s
outstanding parole warrant.

Plaintiff was then detained by the NYPD

and held at Bronx Central Booking for five days.

Despite the officer’s

mention of “outstanding warrants,” the parole warrant was not executed
at this time.
Upon his release, plaintiff states that he attempted to contact Chin
about his April detention. According to plaintiff, he left numerous voice
messages on her phone, but his calls were never returned.

Chin and

Friedman deny having received any calls from plaintiff, and state that
they never received notice of plaintiff’s April detention from plaintiff, the
NYPD, or anyone else. Plaintiff also admits that he never went to see
either Chin or Friedman in person.
On May 23, 2003, plaintiff was again stopped by an NYPD officer
for possessing an open container of beer in a public place.

Like the

officer who arrested plaintiff a month earlier in April, this officer told
plaintiff that, if plaintiff had no outstanding warrants, he would be
4

issued a summons and would be free to leave.

The officer then

conducted a name check on the NYPD computer system, which turned
up the same parole warrant that had been issued by Chin and Friedman.
Plaintiff was again detained, but this time he was arraigned on the parole
warrant.
On May 29, 2003, six days after his arrest, plaintiff was charged
with violating the terms of his parole through a Notice of Violation. The
Notice of Violation advised plaintiff that a preliminary hearing would be
held on June 6, 2003, to determine whether probable cause existed for
the charged parole violations.

Then, if probable cause was found to

exist, a final revocation hearing would be held on June 20, 2003.
Because plaintiff still owed three months and one day on his sentence
(the time remaining on his sentence as of the date he was declared
delinquent, January 2, 2003), his estimated maximum expiration date
was August 30, 2003.
Under New York law, however, plaintiff was entitled to receive
notice regarding a parole violation hearing within three days of his arrest.
Thus, the Notice of Violation that he received, six days after his arrest,
was untimely. Plaintiff was still in custody on June 17, 2003, when he
filed a habeas petition in New York State Supreme Court.

Parole

conceded that plaintiff had not received timely notice of a preliminary
hearing within three days of his arrest as required under New York

5

Executive Law § 259-I, and did not oppose the habeas petition. Plaintiff
was released from custody in early July 2003.
In addition, the parole warrant holding plaintiff was vacated, which
expunged the otherwise valid delinquency which had been imposed on
plaintiff on January 2, 2003. Plaintiff’s sentence was thus recalculated
retroactively as if plaintiff had not absconded, and the maximum
expiration date reverted back to his earlier-calculated release date of
April 3, 2003.
Procedural History
On May 24, 2004, plaintiff filed a complaint in this action. Plaintiff
amended his complaint on July 1, 2004. On July 28, 2005, defendants
filed a motion to dismiss, which the court denied as to Chin and
Friedman.

On May 7, 2010, plaintiff filed a motion for summary

judgment, which the court denied. On October 26, 2010, plaintiff filed a
second motion for summary judgment, which the court again denied.
Plaintiff filed a third motion for summary judgment on August 15, 2011,
and defendants cross-moved for summary judgment on January 9, 2012.
The court denied both motions.
Plaintiff amended his complaint for a second time on December 3,
2013, and then a third time on August 14, 2014. The third amended
complaint

named

Parole

Officers

John

Cieslak

Jr.

and

Angela

Dibenedetto as defendants for the first time. Plaintiff attempted to serve
Cieslak and Dibenedetto by leaving a summons and complaint at the
6

Office of the Attorney General.

On April 20, 2015, plaintiff moved for

default judgment against Cieslak and Dibenedetto.
On August 15, 2014, plaintiff moved for summary judgment for the
fourth time. While the court initially denied that motion, at a conference
on September 18, 2015, the court permitted plaintiff to renew that
motion for summary judgment against defendants Chin and Friedman.
Defendants cross-moved for summary judgment on November 6, 2015.
Discussion
1. Summary Judgment Is Granted in Favor Of Defendants Chin
and Friedman.
To prevail on a motion for summary judgment, the movant must
show that there is “no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
The movant bears the burden of demonstrating the absence of a question
of material fact. In making this determination, the court must view all
facts “in the light most favorable” to the non-moving party. Holcomb v.
Iona Coll., 521 F.3d 130, 132 (2d Cir. 2008); see Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). To survive a summary judgment motion, the
opposing party must establish a genuine issue of fact by “citing to
particular parts of materials in the record.” Fed. R. Civ. P. 56(c)(1); see
Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). Only disputes over
“facts that might affect the outcome of the suit under the governing law”
will preclude a grant of summary judgment. Anderson v. Liberty Lobby

7

Inc., 477 U.S. 242, 248 (1986).

In determining whether there are

genuine issues of material fact, the Court is “required to resolve all
ambiguities and draw all permissible factual inferences in favor of the
party against whom summary judgment is sought.” Johnson v. Killian,
680 F.3d 234, 236 (2d Cir. 2012) (citing Terry v. Ashcroft, 336 F.3d 128,
137 (2d Cir. 2003)).
In cases that involve a pro se party, the court must construe his
submissions liberally to “raise the strongest arguments that they
suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir.
2006) (internal quotation marks and citation omitted).

However, this

standard “does not relieve [a pro se party] of his duty to meet the
requirements necessary to defeat a motion for summary judgment.”
Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003) (citation
omitted).
To prevail on a § 1983 claim, a plaintiff must establish (1) the
violation of a right, privilege, or immunity secured by the Constitution or
laws of the United States (2) by a person acting under the color of state
law. West v. Atkins, 487 U.S. 42, 48 (1988). In addition, a plaintiff must
show defendants’ personal involvement in the claimed violation of his
rights. Provost v. City of Newburgh, 262 F.3d 146, 154 (2d Cir. 2001).
To establish personal involvement, a plaintiff must show that there was
“personal participation by one who ha[d] knowledge of the facts that
rendered the conduct illegal.” Id. at 155.
8

The Second Circuit outlined a framework for assessing personal
involvement in Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).
Personal involvement may be found where: (1) the defendant participated
directly in the constitutional violation, (2) the defendant, after being
informed of the violation, failed to remedy the violation, (3) the defendant
created or allowed to continue a policy or custom under which the
violation occurred, (4) the defendant was grossly negligent in supervising
subordinates who committed the violation, or (5) the defendant exhibited
deliberate indifference to the violation by failing to act on information
indicating that the violation was occurring. Id. The Second Circuit has
noted that the Supreme Court’s decision in Ashcroft v. Iqbal, 556 U.S.
662 (2009), may have heightened the requirements for showing personal
involvement. Grullon v. City of New Haven, 720 F.3d 133, 139 (2d Cir.
2013).
In addition, public officials may be protected from § 1983 liability
under the doctrine of qualified immunity.

Public officials are immune

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).
Here, plaintiff fails to demonstrate the personal involvement of
Chin or Friedman.

Further, even if plaintiff could show Chin and

Friedman’s personal involvement, Chin and Friedman would be entitled
to qualified immunity.
9

Chin and Friedman had no personal involvement in plaintiff’s
detentions in April 2003 and May 2003.

Chin and Friedman had

transferred plaintiff’s case as of March 2003, before either detention.
And in March 2003, plaintiff’s warrant was indisputably valid. Even had
plaintiff not absconded in January 2003, the maximum expiration date
for his sentence would still have been April 3, 2003, after the case was
transferred out of the hands of Chin and Friedman.
Though not made clear in his papers, plaintiff appears to fault
Chin and Friedman for his detention in May 2003 due to their failure to
cancel the parole warrant after plaintiff’s detention in April 2003. Two
possible theories of liability flow from this argument. Under one possible
theory, the parole warrant was essentially “used up” when plaintiff was
arrested in April 2003 because the NYPD officer detained plaintiff only
after discovering the outstanding warrant.

Plaintiff claims he left

messages for Chin informing her of his April 2003 detention. According
to plaintiff, Chin should have canceled the warrant upon learning of his
April detention because the warrant had been used already. Had Chin
canceled the warrant in April, plaintiff would have avoided detention in
May.
Under a second theory, both of plaintiff’s detentions were unlawful
because they occurred after his recalculated maximum expiration date of
April 3, 2003.

After plaintiff’s successful habeas petition, the parole

warrant was expunged and plaintiff’s maximum expiration date reverted
10

back to April 3, 2003, as if the January 2003 violations had never
occurred.

Plaintiff might be suggesting that when his maximum

expiration date reverted back to April 3, 2003, this retroactively rendered
both detentions illegal because they occurred after that date of April 3,
2003. Under this theory, Chin could be liable for the second detention in
May, because after being informed of the first unlawful detention in April,
she should have canceled the warrant and prevented the second
unlawful detention in May.
Neither of plaintiff’s possible theories has merit, as Chin and
Friedman are entitled to qualified immunity.

Specifically, Chin and

Friedman are immune from liability if their actions were objectively
reasonable in light of clearly established law. Morris-Hayes, 423 F.3d at
158. It is well established that upon being declared delinquent, a parolee
stops being credited for time he owes on his prison sentence and his
maximum expiration date is extended for a time equal to his
delinquency.

N.Y. Penal Law § 70.40; see Tineo v. N.Y. State Div. of

Parole, 14 A.D.3d 949, 950 (2005).
Regarding plaintiff’s first theory, while plaintiff does allege that the
officer told plaintiff that the officer would let plaintiff go if plaintiff had no
outstanding warrants, it is undisputed that the parole warrant was not
in fact executed in connection with the April detention.

The parole

revocation process was never initiated, no parole hearing was held, and
plaintiff was released after only five days.
11

Moreover, the NYPD never

gave Chin and Friedman notice of plaintiff’s April detention. Even if the
court assumes that Chin learned of plaintiff’s April detention through
plaintiff’s messages, that does not alter the fact that the parole warrant
was never executed. Chin therefore could reasonably have assumed that
plaintiff’s April detention relied not on the outstanding parole warrant,
but rather on plaintiff’s possession of an open container of beer in a
public place. Under these circumstances, it was objectively reasonable
for Chin or Friedman to not cancel the warrant. Chin and Friedman are
entitled to qualified immunity.
Regarding plaintiff’s second possible theory, even assuming,
arguendo, that both of plaintiff’s detentions were unlawful, Chin and
Freidman’s actions were objectively reasonable in light of the law of
delinquency. As described above, after plaintiff’s detention in April, the
warrant remained extant.

And because plaintiff had absconded, Chin

and Friedman reasonably believed, as of April 2003, that plaintiff still
owed three months and one day on his sentence. It was only in July
2003

that

plaintiff’s

maximum

expiration

date

was

retroactively

recalculated to a date prior to his arrests and detentions. Therefore, in
April 2003, there would have been no reason for Chin and Friedman to
cancel the warrant. Again, Chin and Friedman are entitled to qualified
immunity as their actions were objectively reasonable and they did not
knowingly violate the law.

12

Because Chin and Friedman were not personally involved in
plaintiff’s detentions, and because they are entitled to qualified immunity
in any event, summary judgment is granted in favor of Chin and
Friedman.
2. Plaintiff’s Motion for Default Judgment Against Defendants
Cieslak and Dibenedetto Is Denied.
Plaintiff also moves for default judgment against defendants
Cieslak and Dibenedetto. Neither of these defendants has been properly
served. Plaintiff attempted to serve Cieslak and Dibenedetto by leaving a
summons and complaint at the Office of the Attorney General. However,
this is not sufficient service, as the Attorney General is not authorized to
accept service of papers on current or former state employees. The Office
of the Attorney General did inform plaintiff of the addresses for Cieslak
and Dibenedetto, but as of yet, plaintiff has not served either Cieslak or
Dibenedetto.

Thus, plaintiff’s motion for default judgment against

Cieslak and Dibenedetto is denied.

13

Conclusion
The court denies plaintiff's motion for summary judgment and
grants defendants Chin and Friedman's cross-motion for summary
judgment.

In addition, the court denies plaintiff's motion for default

judgment against defendants Cieslak and Dibenedetto.

This opinion

resolves all outstanding motions in this case.

SO ORDERED.

Dated: New York, New York
March 29, 2016

Thomas P. Griesa
U .8. District Judge

14