Parker v. New York State Division of Parole et al
Filing
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OPINION re: 39 MOTION for Summary Judgment filed by Gilbert Parker, 40 MOTION for Default Judgment as to filed by Gilbert Parker, 43 MOTION for Summary Judgment filed by R. Friedman, A. Chin, 49 MOTION opposing Defendant's Summary Jud gment filed by Gilbert Parker, 38 MOTION for Summary Judgment filed by Gilbert Parker. For the foregoing reasons, all motions are denied. This opinion resolves the motions listed as numbers 38, 39, 40, 43, and 49 on the docket. (Signed by Judge Thomas P. Griesa on 3/28/2012) (mro)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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GILBERT PARKER,
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Plaintiff,
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– against –
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NEW YORK STATE DIVISION OF
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PAROLE, et al.,
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Defendants.
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04 Civ. 3901 (TPG)
OPINION
Pro se plaintiff Gilbert Parker brings this action under 42 U.S.C.
§ 1983, alleging that he was wrongfully detained twice on the same
parole warrant after the maximum expiration date for his parole
supervision. On August 19, 2011, the court denied Parker’s motion for
summary judgment. Parker has now filed four documents which are
denominated as motions for summary judgment or motions for default
related to the earlier summary judgment motion that the court has
already denied. Defendants Alice Chin and Ronald Friedman have
cross-moved for summary judgment.
All motions are denied.
FACTS
The main source of the facts described in this opinion are official
records. Also, the court has made use of certain of the testimony in
Parker’s deposition. Defendants Chin and Friedman have not been
deposed, nor have they filed any affidavits or declarations in connection
with the motions. However, the defendants have filed a statement of
undisputed facts, which has been used to some extent by the court.
Parker was convicted of third-degree attempted burglary in New
York state court and on June 26, 2000 he was sentenced to one year and
six months to three years’ imprisonment. He began serving his sentence
on July 18, 2000. He was released to parole supervision on December 5,
2001, and subsequently absconded to Georgia on December 13, 2001.
He was arrested in Georgia, extradited to New York, and following a
parole revocation hearing, he was sentenced to four months in prison for
absconding to Georgia.
On October 10, 2002, Parker was again released to parole
supervision. At this point, 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 Chin’s supervisor.
On January 30, 2003, Chin and Friedman issued parole warrant number
388305. None of the parties have provided the court with a copy of this
warrant. However, an untitled Division of Parole report apparently
prepared by Chin and submitted by Friedman has been filed in
connection with these motions. The report, dated February 6, 2003,
recited the following alleged parole violations: he left his approved
residence without the permission of his parole officer, was arrested for
drinking in public in January 2003, failed to notify his parole officer of
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his arrest, failed to make his office reports, and failed to attend his
mandated substance abuse program. The report also indicated that
Parker’s whereabouts were then unknown but that a warrant had been
issued on January 30, 2003. Because the Division of Parole did not
know Parker’s whereabouts, the warrant was not served at that time.
On February 14, 2003, a report entitled “Board Action” was
prepared, apparently by the New York State Division of Parole. It
declares Parker “delinquent” as of January 2, 2003. January 2, 2003 is
apparently the date when Parker allegedly began committing the parole
violations described above.
On April 21, 2003, almost three weeks after Parker’s April 3, 2003
maximum expiration date on which his parole supervision should have
ended, Parker was stopped by a New York City Police Department officer
for possessing an open container of beer in a public place. 1 The officer
told Parker that if he did not have any outstanding warrants, he would
give him a summons for having an open container. 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 for five days.
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.
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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 because Parker had already spent time in jail. Parker was
released. The parole warrant remained extant.
The complaint alleges that upon his release Parker made
numerous attempts to contact Chin and Friedman but was unable to do
so. In his deposition, Parker admitted that he did not attempt to contact
Chin between January and April 2003 because he was “on the run” and
had absconded from New York, but he maintained that he attempted to
contact Chin by phone after his April 2003 arrest. He did not go to the
parole office in person to attempt to report to Chin. In their statement of
undisputed facts, Chin and Friedman claim that Parker never contacted
them or otherwise reported to them.
On May 23, 2003, Parker was again stopped by an NYPD officer for
possessing an open container of beer in a public place. Like the officer
who arrested Parker in April 2003, this officer stated to Parker that if
Parker had no outstanding warrants he would be issued a summons and
would be free to leave. 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
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again detained, and this time arraigned on the parole warrant, after
which he was held at the Bernard B. Kerik Complex.
On May 29, 2003, six days after he was arrested on the parole
warrant, Parker was given a Notice of Violation by the New York State
Division of Parole. Under New York law, the Division of Parole was
required to serve this notice on Parker within three days of his arrest.
The Notice of Violation 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. Assuming the
existence of probable cause, a final revocation hearing on the charges
was to be held on June 20, 2003.
Neither Chin nor Friedman’s name appears on this Notice of
Violation, and they have not provided any testimony as to who at the
Division of Parole issued the Notice of Violation. However, as Parker’s
parole officer and her supervisor, it is reasonable to infer that Chin and
Friedman were responsible for issuing the Notice of Violation.
Parker testified during his deposition that the June 6, 2003
probable cause hearing never took place. Chin and Friedman’s papers
do not claim that such a hearing ever occurred. Parker was still in
custody on June 17, 2003, more than 11 days after the probable cause
hearing was scheduled to take place, when he filed a petition for habeas
corpus in Supreme Court, New York County. The basis for Parker’s
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habeas corpus petition was that Parker was not, at the time of his 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
section 259-i. At the July 1, 2003 hearing on Parker’s 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 7, 2003, 2 and discharged from parole as of
his April 3, 2003 maximum release date, retroactively.
Although Parker does not have documentary evidence of this, he
claims that his parole supervision was terminated when he was released
on July 7, 2003 and that he was informed of this by the prison guards
and an attorney named Jose Vasquez. He stated that the Attorney
General at the habeas proceeding informed him that he was to be
released and that the judge agreed his parole supervision should be
terminated. Before he was released, he was also told by the prison
guards that he did not have to report to a parole officer anymore. This is
certainly consistent with Chin and Friedman’s admission that he was
discharged as of April 3, 2003, retroactively. However, in their papers
Chin and Friedman have also taken the conflicting position that Parker’s
parole was not terminated when he was released on July 3, 2003, but
Parker claims to have been released on July 3, 2003. Chin and
Friedman claim that the date was July 7, 2003. The difference is
immaterial for purposes of these motions but for purposes of these
motions this opinion will use the later July 7, 2003 date.
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rather that it continued thereafter because he had been declared
delinquent.
New York’s Statutory Scheme for Punishing Parole Violations
To assess the validity of Parker’s constitutional claims, it is
worthwhile to summarize New York’s elaborate procedures for punishing
parole violations. These procedures are generally set forth in N.Y. Exec.
Law section 259-i. These procedures have been summarized in the
court’s prior decision in this matter, see Parker v. Chin, No. 04 Civ. 3901
(TPG), 2006 U.S. Dist. LEXIS 30675, at *7-10 (S.D.N.Y. May 16, 2006),
but are worth revisiting here.
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. N.Y. Exec. Law section 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)(ii). As described above, 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
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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)(iii)-(iv).
If the hearing officer determines that no probable cause exists to
believe the parolee violated his conditions of parole, he is immediately
released and restored to parole supervision. Id. § 259-i(3)(c)(vii). If the
hearing officer determines that probable cause exist to believe that the
parolee 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 Division of Parole may also declare a parolee to be “delinquent”
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. 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
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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). However, 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).
The Parties’ Claims
Parker is proceeding pro se and his submissions are not entirely
clear about what he is claiming and about the basis for such claims.
However, the essence of his case is that he was detained for parole
violations for five days after the police stop of April 21, 2003, and after
the police stop of May 23, 2003, he was detained until July 7, 2003, and
that these detentions occurred without compliance with the New York
state procedures and were therefore in violation of his United States
constitutional rights. His claims must be presumed to arise under 42
U.S.C. § 1983. Chin and Friedman assert various defenses, including
the contention that they were not personally involved in any procedural
or constitutional violations.
DISCUSSION
Anybody who is deprived of liberty or property by a state actor is
entitled to due process. U.S. Const. amend. XIV. Generally due process
entails notice and a right to be heard prior to the deprivation of liberty or
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property, or a meaningful post-deprivation opportunity to challenge the
deprivation. Hellenic Am. Neighborhood Action Comm. v. City of New
York, 101 F.3d 877, 880 (2d Cir. 1996). Whether the opportunity to
challenge the deprivation needs to be before or after the deprivation
depends on whether the deprivation was part of an “established state
procedure” or based on a “random, unauthorized act.” Id. In Hellenic,
the Second Circuit held that in claims based on “random, unauthorized”
acts, “the Due Process Clause . . . is not violated when a state employee
intentionally deprives an individual of property or liberty, so long as the
State provides a meaningful postdeprivation remedy.” Id.
The right to due process extends to parolees facing parole
revocation. McDay v. Travis, 303 Fed. Appx. 928, 930 (2d Cir. 2008)
(holding that under the Due Process Clause, parolees facing revocation
are “entitled to a preliminary hearing and a revocation hearing.”). The
Second Circuit has held that a parolee has a constitutional due process
claim when he is detained beyond his maximum detention date without a
final revocation hearing. Calhoun v. New York State Div. of Parole
Officers, 999 F.2d 647, 653 (2d Cir. 1993) (“The state may not extend a
prisoner’s sentence based on a claimed parole violation, without
providing him [a] final due process hearing.”).
There surely is an issue in the present case as to whether due
process was accorded to Parker in connection with his arrests for parole
violations and his detentions. However, this was not a case where there
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was an extension pf parole or detention without any reason. The
undisputed facts ~how that Parker committed serious parole violations,
including abscon1ng for a period of about four months from January to
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April 2003. The rrsolution of this case, including consideration of all the
circumstances, cannot be made on the present record.
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CONCLUSION
For the for1g0ing reasons, all motions are denied.
This opinioh resolves the motions listed as numbers 38, 39, 40,
43, and 49 on thJ docket.
Dated: New Yorkl New York
March 28:, 2012
U.S. District Judge
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ELECTRONICAllY
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DATE FILED;
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