ABC v. DEF

Filing 283

OPINION & ORDER re: 264 MOTION for Summary Judgment Notice of Motion, filed by Simon Valerio, Joseph Lima, 233 MOTION for Summary Judgment / Plaintiffs' Motion for Summary Judgment, filed by ABC. The Court grants pla intiffs' motion for summary judgment as to liability against all five defendants, and denies the motions for summary judgment filed by defendants Lima, Rosado, and Valerio. The Clerk of Court is respectfully directed to terminate the motions pending at Dkts. 233 and 264. An order will issue shortly as to next steps in this case, and as further set forth herein. (Signed by Judge Paul A. Engelmayer on 8/31/2017) (ras) (Main Document 283 replaced on 8/31/2017) (anc).

and Richard Rosado—in turn move for summary judgment in their favor, primarily on grounds
of qualified immunity and a lack of personal involvement.
For the following reasons, the Court grants plaintiffs’ motions for summary judgment as
to liability as to each defendant, and denies defendants’ motions.
I.

Background1
A.

Factual Background
1.

Doe’s Family Overview

Doe is the biological father of M.S. and the husband of Jane Doe, the biological mother
of M.S. JSF ¶¶ 1–2. John and Jane Doe, a woman John Doe has known for more than 25 years,
Albom Decl, Dkt. 236, Ex. 1, ¶ 3, were married in September 2007, JSF ¶ 11. M.S. was born in
September 2012. Id. ¶ 3. Since September 2013, Doe has worked full-time for a Manhattanbased company that provides live and artificial foliage for special events. Id. ¶ 13. Since 2006,
Jane Doe has worked at a legal secretary for a large law firm in Manhattan. Id. ¶ 15.
Doe had previously been married, between 1988 and November 2005, to Beverly Martin.
Id. ¶ 10. He is the father of eight children with five women: four with ex-wife Martin; one with
Jane Doe (M.S.); and three with three other women. Id. ¶ 12. His children are two daughters
born in 1986; a son born in 1990; a daughter born in 1993; a son born in 1997; a daughter born in

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The Court draws its account of the underlying facts from the parties’ Joint Statement of
Undisputed Facts, Dkt. 229 (“JSF”), and its attached exhibits; Plaintiffs Rule 56.1 Statement of
Undisputed Material Facts, Dkt. 234 (“Pl. 56.1”), and defendants’ response, Dkts. 246-2, 269;
defendants Lima’s and Valerio’s Rule 56.1 Statement of Facts, Dkt. 268 and defendant Rosado’s
Statement Pursuant to Rule 56.1, Dkt. 246-1, and plaintiffs’ responses to each, Dkts. 273–74; and
attached exhibits. The Court also reviewed the declarations submitted by counsel and their
attached exhibits, see, e.g., Dkts. 236, 258, 267. The Court has reviewed all exhibits submitted
by the parties in the various declarations by counsel. When the Court cites to a Rule 56.1
statement, it does so for facts or for parts of facts that are undisputed or substantively undisputed
by either plaintiffs or defendants.
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1998; a daughter born in 1999; and M.S., born in September 2012. Id. There is no evidence that
Doe ever abused or mistreated his children. Pl. 56.1 ¶ 12.
2.

Doe’s Rape Conviction and Criminal Record

On October 18, 2004, Doe was convicted after a jury trial in New York State Supreme
Court, Bronx County, of one count of rape in the second degree, one count of sodomy in the
second degree, and one count of endangering the welfare of a child. JSF ¶ 16. On May 11,
2005, Doe was sentenced to consecutive terms of imprisonment for three and a half to seven
years and two to six years. Id.
Before his trial and conviction, Doe resided with his then-wife, Martin, their four
children, and Martin’s niece. Id. ¶ 17. The complaining witness in Doe’s rape case was Martin’s
niece, who testified at Doe’s trial that Doe had engaged in vaginal and oral sex with her in 2002
and 2003 when she was 13–14 years old. Id. Doe has asserted his innocence of these charges,
Pl. 56.1 ¶ 18; for reasons that the record does not make clear, his criminal conviction remains
today on direct appeal, see JSF ¶ 18.
Doe has other criminal convictions and an incident of domestic violence. On January 22,
1981, as a juvenile offender, he pleaded guilty to robbery in the first degree and was sentenced to
28 months to seven years of imprisonment. Id. ¶ 22. On April 4, 1988, he pleaded guilty to two
counts of robbery in the first degree and was sentenced to concurrent terms of six to 12 years of
imprisonment. Id. ¶ 21. In addition, in connection with his arrest leading to his 1988 conviction,
he provided law enforcement officers with his mother’s maiden name as his last name and with
an incorrect birth year (1968 instead of 1965), for the purpose of impeding the police’s ability to
identify him. Id. ¶ 23. Finally, in 2000, Doe shoved or pushed Martin during a “scuffle” and she

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fell to the ground; as a result, Martin went to Lincoln Hospital in the Bronx to seek medical care.
Id. ¶ 24.
3.

Doe’s Initial Parole Supervision and Special Condition 13

Doe served more than eight years of his sentence for his 2004 rape conviction. Id. ¶ 16.
While in prison, Doe successfully completed DOCCS’s Sex Offender Counseling and Treatment
Program, along with DOCCS’s Aggression Replacement Training. Id. ¶ 19. Before his release
from prison, the New York State Supreme Court, Bronx County, classified Doe as a SORA
(“Sex Offender Registration Act”) Level Two sex offender. Id. ¶ 20. After that classification,
Doe registered in the New York State Sex Offender Registry. Id.
On November 2, 2011, Doe was released from prison to a parole supervision term of four
years and four months, which ended on March 2, 2016. Id. ¶¶ 25–26. Upon his release from
prison, Doe was initially referred to the Bellevue Men’s Shelter for housing because DOCCS
determined that his proposed residence with his wife would not comply with the New York State
Sexual Assault Reform Act (“SARA”) as it was within 1000 feet of a school. Id. ¶ 30. In
December 2011, however, Doe and Jane Doe proposed to reside in a different location in the
Bronx. DOCCS approved this residence, and Doe moved into that residence with Jane Doe. Id.
¶ 31.
On November 3, 2011, the day after his release from prison, Doe reported to his assigned
parole officer, Joseph Rehal. His release on parole was subject to numerous conditions; Rehal
read these conditions to Doe. Doe stated that he understood them. Id. ¶¶ 29–30.
Relevant here, special condition 13 stated that Doe “will have no contact with any person
under the age of eighteen, without the written permission of the supervising parole officer.” Id.
¶ 29 & Ex. A.

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To obtain permission to have contact with his youngest daughter, L.S., who was 12 years
old at the time of his release, Doe, on December 6, 2011, filed a petition in Bronx Family Court
requesting visitation with L.S. Id. ¶ 32. On February 1, 2012, the Bronx Family Court granted
Doe’s petition for visitation with L.S. upon the consent of L.S.’s mother, Doe’s ex-wife, Martin.
Id.
On April 3, 2012, Doe sought permission from his parole officer, Rehal, for his wife’s
cousin and young child to stay at their residence for two nights. Id. ¶ 32. Rehal denied this
request. He told Doe that children were not allowed in the apartment without the prior
permission from Doe’s parole officer. Id.
Around May 2012, after the Bronx Family Court permitted Doe’s visitation with L.S.,
Rehal, after consulting with senior parole officer Miguel Medina, permitted Doe to have contact
with L.S. subject to the terms of the Family Court’s order. Id. ¶ 34. Rehal was not aware of any
adverse incidents or harm to L.S. during his tenure as Doe’s supervising parole officer. Id. On
August 22, 2012, the Bronx Family Court issued its final order as to Doe’s access to L.S.; it
granted Doe unsupervised visits with L.S. Id. ¶ 35.
Doe’s parole conditions also required him to participate in sex offender treatment. Id.
¶ 36. DOCCS sent Doe to the New York Center for Addiction Treatment Services (“NYCATS”)
to satisfy this condition. Around November 18, 2011, Doe enrolled in programs at NYCATS.
Id. On September 29, 2012, Doe successfully completed the substance-abuse and sex-offender
treatment programs at NYCATS. Id. ¶ 37.
4.

The Birth of M.S.

Around February 2012, Jane Doe discovered that she was pregnant with John Doe’s
child. Id. ¶ 38. On or about April 19, 2012, John Doe alerted Rehal, his parole officer at the

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time, that Jane Doe might be pregnant. Rehal counseled Doe about his sex offender restrictions.
Id. In September 2012, John and Jane Doe’s son, M.S., was born. Id. ¶ 3.
5.

Doe’s Ensuing Parole Supervision and the Roles of Each Defendant

Until March 2014, Doe was supervised by the Manhattan VI Area Office of the New
York State Division of Parole, an office that specializes in the supervision of parolees convicted
of sexual offenses and parolees with mental illnesses. In September 2012, DOCCS was
preparing to transfer Doe’s case from the Manhattan VI Area Office to the Bronx II Area office
on account of Doe’s residing in the Bronx. The Bronx II Area office ultimately supervised Doe
from March 2014 until his parole ended in March 2016. Id. ¶¶ 27–28, 39–40.
On September 17, 2012, defendant Emily Scott, a parole officer at DOCCS in the
Manhattan VI Area Office, was assigned to supervise Doe. She ultimately supervised Doe as his
parole officer until September 19, 2013. Id. ¶ 8. The responsibilities of a parole officer include
monitoring assigned parolees’ compliance with the terms and conditions of their parole and with
the standards of parole supervision. Id. ¶ 4.
At all relevant times:
Defendant James Cappiello was a senior parole officer at the Manhattan VI Area Office.
Cappiello was assigned to oversee Doe’s supervision from around September 2012 to April
2013. Id. ¶ 6.
Defendant Joseph Lima was a bureau chief of the Manhattan VI Area Office. He held
this position for the duration of Doe’s supervision by that office. Id. ¶ 4. Lima was generally
responsible for the supervision of three senior parole officers and between 17 and 25 parole
officers. Id.

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Defendant Richard Rosado was a senior parole officer at the Manhattan VI Area Office.
He was assigned to oversee Doe’s supervision from around June 2013 until around March 2014,
although he was also involved in decisions regarding Doe’s supervision beginning in at least
October 2012. Id. ¶ 5.
Defendant Simon Valerio was a parole officer at the Manhattan VI Area office. He was
assigned to supervise Doe as a parole officer from about September 19, 2013 until about
December 16, 2013. Id. ¶ 7.
6.

The Parole Department’s Separation of Doe From M.S.

After being assigned to supervise Doe, on September 17, 2012, Scott reviewed Doe’s
parole file and his Parolee Chrono Report (“PCR”). Id. ¶ 39. On September 25, 2012, Scott and
Cappiello met to review Doe’s case. They discussed preparing the transfer of Doe’s case to the
Bronx Parole Office, because Doe was residing in the Bronx. Id. ¶ 40.
a.

The First Separation of Doe From M.S.

On October 4, 2012, the month after M.S.’s birth, Doe went to the Manhattan VI Area
Office for an office report. Id. ¶ 41. He met with Scott, Rosado, and Cappiello, and mentioned
that he was residing with his wife and newborn child, M.S. In response, Scott, Rosado, and
Cappiello told Doe that he was not allowed to reside or otherwise have contact with M.S.
because of the special condition of his parole that prohibited contact with any person under age
18 without the written permission from his parole officer. Id.
Doe protested. He explained that the Bronx Family Court had approved his petition for
unsupervised visitation with his daughter, L.S., then age 14. During the meeting, Scott, Rosado,
and Cappiello did not ask Doe any questions about his relationship with M.S. or otherwise seek

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any information from Doe. Doe became visibly upset during this meeting and Scott thought he
might need medical assistance. Id.
During the October 4, 2012 meeting, Scott, at Cappiello’s instruction, required Doe to
sign a document containing additional conditions of parole. The statement that Doe was directed
to sign, and did sign, affirmed that he must immediately leave Jane Doe’s and M.S.’s residence
and not have any contact with any children under age 18. It stated that “residing with wife and
new born is clearly a violation of my release conditions. I must seek visitation order with regard
to new born child [M.S.]. I am aware that I can not have contact with child until approval by
Family Court and Parole Officer Scott.” Id. ¶ 42 & Ex. B.
The three parole officials—Scott, Rosado, and Cappiello—based their decision to order
Doe out of his residence with Jane Doe and M.S. on the special condition of parole that
prohibited Doe from having contact with person under age 18 without the written permission of
the parole officer supervising Doe. Id. ¶¶ 43, 48. These officials did not consider allowing Doe
to have restricted contact with M.S. instead of simply no contact at all. Nor did the officials
consider their decision subject to modification. Id. Doe had been aware of his special parole
condition, although Doe had not had notice that the parole authorities would not permit him to
have contact with M.S. Id. ¶¶ 44–45. Jane Doe was not contacted by any DOCCS officials
before, during, or after the October 4, 2012 meeting, including for the purpose of asking her
whether she supported or opposed parental contact between John Doe and M.S. Id. ¶ 46.
After the October 4, 2012 meeting with Scott, Rosado, and Cappiello, Doe complained
orally to supervisor Lima about being prohibited from contact with M.S. Id. ¶ 47. This was the
first time Lima had spoken with Doe. Lima previously had consulted with Doe’s prior parole
officer, Rehal, about Doe’s parole supervision. Id. Later that day, Lima spoke to Cappiello,

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Rosado, and Scott. Lima told them that their decision not to permit Doe to have contact with
M.S. was correct because Doe’s parole condition prohibited contact with any person under age
18 in the absence of written permission from the parole officer. Id.
Later in the day on October 4, 2012, after the meeting with Doe, Scott called Cornelia
Krieger, assistant director at NYCATS. Id. ¶ 49. Krieger told Scott that Doe had been extremely
compliant, that Doe had maintained a 100 percent attendance rate at NYCATS, and that
NYCATS assessed Doe to be at a low risk of recidivism with no indicators of reoffending. Id.
¶ 49.
After the October 4, 2012 meeting with DOCCS officials, Doe immediately moved out of
his residence and into a homeless shelter. Pl. 56.1 ¶ 41.
On October 5, 2012, Doe filed a petition in Bronx Family Court for visitation with M.S.
Id. ¶ 50. Jane Doe consented to this petition. Id.
On October 6, 2012, Doe showed Scott the Final Order issued by the Bronx Family Court
granting unsupervised visitation with L.S. Id. ¶ 51. Doe also told Scott that he had filed a
petition in Bronx Family Court for visitation with M.S. Scott again directed Doe not to have any
contact with M.S. Scott also directed Doe to provide all court-related information on his next
report date with her, which was scheduled for October 11, 2012. Id.
On October 11, 2012, Doe provided Scott with the court information for his petition, and
with a letter of recommendation from NYCATS. Id. ¶ 52.
On October 17, 2012, Scott visited Bronx Family Court to obtain more information on
the Final Order relating to Doe’s right to unsupervised visitation with L.S. Id. ¶ 53. Scott was
unable to obtain additional information there due to a fire drill. Sometime after Doe filed his

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petition for visitation with M.S., Scott told an investigator for Bronx Family Court that Doe
could not have any contact with anyone under age 18. Id.
On March 12, 2013, Doe’s petition for visitation with M.S. in Bronx Family Court was
dismissed without prejudice because “the conditions of the Petitioner’s probation indicate that he
is not to live in the same home as a child under the age of 18.” Id. ¶ 54.
Doe continued to reside in the homeless shelter. On December 12, 2012, at an office
report, Scott reiterated to Doe that he was not permitted to have any contact with M.S. or any
other children. Id. ¶ 55.
On January 24, 2013, Scott spoke to Mary Osborne, deputy director of DOCCS’s Sex
Offender Management Unit and discussed Doe’s request to have parental contact with M.S. Id.
¶ 56. Osborne recommended that Doe be referred back to NYCATS for an updated interview
and evaluation to assess Doe’s suitability for reuniting with his family. Id. At some later point
in January 2013, Scott informed Cappiello of her conversation with Osborne. Id. ¶ 57.
Cappiello had not been previously aware that Scott was considering permitting Doe to return to
the family residence and have contact with M.S. Cappiello himself had not been taking any steps
to explore Doe’s reuniting with his family. Id.
Doe then underwent an evaluation by NYCATS officials. On January 29, 2013, Steven
Rego, a licensed master social worker from NYCATS, met with Doe to evaluate his suitability to
return home to Jane Doe and M.S. Id. ¶ 58 & Ex. C. Rego interviewed Doe and noted that Doe
denied that he committed the sexual offenses of which he had been convicted of in 2004 and for
which he was on parole. Rego noted that the Parole Board records indicated that in his hearing
before the Parole Board, Doe had “denied putting his penis in his niece but acknowledged that he
began to touch his niece and then progressed to oral sex with her.” Id. Rego noted that Doe

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stated to him in the interview that he, Doe, “only said these to the parole board because he
wanted to be released and was thus lying to the parole board.” Rego noted that Doe maintained
in his meeting with Rego that “he did not molest her in any way.” Id.
On February 4, 2013, Rego, in a follow up meeting, met again with John Doe and Jane
Doe. Id. ¶ 58 & Ex. C. Rego noted that Doe again denied that he committed the sexual offenses
and that “he admitted some sexual contact to the parole board because he believed it was the
only way he would be released.” Id. Rego concluded after this meeting that “Doe should be
permitted to reside with his wife. Cohabitation with a partner of the opposite sex is actually a
protective factor for those who commit sexual offenses. It also puts [Doe] with someone who
can offer support if needed. It is therefore conducive to the principles of relapse prevention.” Id.
After this evaluation, on February 7, 2013, Scott told Doe that he could return home and
have contact with M.S. Id. ¶ 59. That same day, John Doe moved back in with Jane Doe and
M.S. at the family’s apartment in the Bronx. Id. Scott recorded her grant of permission to Doe
to return home in an entry in the PCR record she created that day. Other than that PCR entry,
there is no written statement of permission from Scott to Doe to return home and have contact
with M.S. in the record of this case. Id.; see also Pl. 56.1, Ex. 3 (“Doe PCR”). There is also no
PCR entry reflecting any review or approval by a senior parole officer or bureau chief permitting
Doe to have contact with M.S. JSF ¶ 60.
On April 8, 2013, Scott and Cappiello met to review Doe’s case. They discussed that
Doe was living in the Bronx with his family, but Cappiello did not recall appreciating during that
meeting that Doe was then residing with M.S. Id.
b.

The Second Separation of Doe From M.S.

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In April 2013, Doe’s was case was scheduled to be transferred to the Bronx Area II
Office. Id. ¶ 61. On April 19, 2013, a parole officer in the Bronx Area II Office made an entry
in Doe’s PCR noting that Doe had recently been given permission to reside with his wife and
M.S. Id. ¶ 61. Around April 22, 2013, the bureau chief of the Bronx Area II Office, Rodney
Young, spoke with Lima about Doe’s case. The transfer of supervision over Doe’s parole from
the Manhattan VI Area Office to the Bronx Area II Office was cancelled. Id.
On June 17, 2013, Rosado instructed Scott to review Doe’s case to confirm that it was
proper for Doe to reside with his family, after Rosado determined that there did not appear to be
any record reflecting that an exception had been made for SARA compliance. Id. ¶ 62.
On July 1, 2013, Rosado directed Scott to discuss, with Lima, Doe’s living arrangement
with Jane Doe and M.S. Id. ¶ 63. On July 11, 2013, in anticipation of Rosado’s review of
whether Doe could reside with M.S., Scott told Doe to compile all Family Court documents,
along with NYCATS reassessment. Id. ¶ 64.
On August 6, 2013, Rosado instructed Scott to require Doe to move out of his residence
with Jane Doe and M.S. as soon as possible. Id. ¶ 65. That same day, Rosado discussed Doe’s
living arrangement with Lima. Lima also determined that Doe should not be permitted to live
with M.S. and must move out of the residence with Jane Doe and M.S. Id. Lima’s
determination was based on Doe’s conviction for sexual offenses and because of the Parole
Board’s condition prohibiting any contact with a person under age 18 in the absence of written
permission from the parole officer. Id.
On August 22, 2013, Scott told Doe that he was not permitted to have any contact with
M.S. and would have to move back to a homeless shelter. Id. ¶ 66. Scott was not directed to
advise Doe, and did not advise Doe, of any procedure under which Doe could challenge this

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decision. Id. Before August 22, 2013, Doe had not been contacted by Scott, Rosado, or Lima as
to this issue, and had not been notified that he would be prohibited from having contact with
M.S. and ordered to move out of the family’s residence. Id. ¶ 67.
On September 5, 2013, a different parole officer told Doe to move out of the family
residence immediately. Doe moved out of the residence and returned to a homeless shelter in the
Bowery in Manhattan. Id. ¶ 68.
Around September 19, 2013, Rosado removed Doe from Scott’s supervision. Rosado
appointed Valerio as the parole officer supervising Doe. Id. ¶ 69. Rosado removed Scott as
Doe’s parole officer because Scott had permitted Doe to live with his family and have contact
with M.S. Rosado instructed Scott not to have further contact with Doe or involvement with his
case. Id. Scott conferred with Valerio about the transfer of Doe’s case from her to him. Id.
c.

Doe’s Invocation of DOCCS’s Parental Contact Protocol

On August 21, 2013, shortly before the second period in which Doe was separated from
M.S., DOCCS adopted a new directive, Agency Directive 9601, entitled the “Parental Contact
Protocol.” Id. ¶ 70 & Ex. D (“Parental Contact Protocol” or “Protocol”). The Parental Contact
Protocol addresses the “parental legal rights that must be considered in instances where: (1) an
individual who is expected to be under or is under community supervision (a releasee); and (2)
the releasee is the biological or adoptive parent of a minor (a person under the age of 18); and (3)
a condition of the releasee’s supervision limiting or prohibiting such contact has been imposed
by DOCCS.” Id. ¶ 71. The Protocol sets out DOCCS’s administrative procedure to determine
the conditions that “are reasonably necessary for a releasee to properly exercise his/her parental
rights while protecting his/her children from harm or danger.” Id.

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On September 17, 2013, an attorney for Doe sent a letter to the New York State Board of
Parole, and two senior officials: Anthony J. Annucci, the acting commissioner of DOCCS, and
Terrance X. Tracy of the New York State Board of Parole. The letter asked that DOCCS
immediately permit Doe to return to his family’s home to reside with Jane Doe and M.S. Id.
¶ 72 & Ex. E. On September 26, 2013, Doe’s attorney sent the same letter to Lima. Id.
On October 2, 2013, Lima told Doe’s attorney that Lima would initiate an investigation
pursuant to the Parental Contact Protocol to determine whether to permit Doe to reside with M.S.
Id. ¶ 73. Lima noted that the Protocol gave DOCCS 45 days to complete its investigation but
told Doe’s attorney that Lima expected the investigation into Doe’s case to be “expedited.” Id.
¶ 73.
On October 7, 2013, Lima, Rosado, and Scott met to discuss the investigation into Doe’s
request for parental contact with M.S. Id. ¶ 74. Lima and Rosado directed Scott to review the
Parental Contact Protocol and to assist Doe in gathering documentation germane to DOCCS’s
investigation. Id. Scott then spoke to John Doe and Jane Doe in separate phone calls. Id.
On October 8, 2013, Doe reported for a regular office visit and provided paperwork
required by the Protocol. Id. ¶ 75. The same day, Scott spoke to Martin, Doe’s ex-wife, who
agreed to provide additional documentation in support of Doe’s request for parental contact with
M.S. Id. ¶ 76. On October 10, 2017, Doe had his first visit with Valerio; they discussed Doe’s
parole conditions and Doe’s request for parental contact with M.S. Id. ¶ 77. On October 11,
2013, Doe submitted to Scott a letter from Martin that supported Doe’s request for such contact,
along with other paperwork relating to Scott’s request under the Protocol. Id. ¶ 78.
Valerio was the lead investigator in the investigation under the Protocol. Id. ¶ 81. As
Rosado directed, parole officers Rennie Rodriguez and Rebecca Rodriguez assisted Valerio. Id.

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Rosado directly oversaw the investigation; Lima and Rosado determined which documents
should be reviewed and who should be interviewed. Id. Valerio, Rennie Rodriguez, and
Rebecca Rodriguez took the following actions as part of their investigation. See id. ¶ 82:
(1)

On October 22, 2013, Valerio, in an attempt to gather information about

Doe’s criminal conviction, contacted the Bronx District Attorney’s Office. He learned
that the Assistant District Attorney who prosecuted Doe’s criminal case no longer worked
in that office, but was told that a supervisor at that office would order the records from
the criminal case. Id. ¶ 82.a.
(2)

On October 24, 2013, Valerio, with Rennie Rodriguez, visited the Bronx

Administration for Children Services office. They searched for records related to Doe or
the complaining witness in Doe’s criminal case but were unsuccessful in finding any. Id.
¶ 82.b.
(3)

On October 25 and 26, 2013, Valerio and Rennie Rodriguez went to

Martin’s residence and interviewed her about Doe’s criminal case and his request to have
contact with M.S. Martin told Valerio and Rodriguez that she had known Doe for 20
years and had no objection to his request for parental contact. She stated she felt
comfortable leaving her children with him. She also provided Valerio and Rodiguez with
a written statement supporting Doe’s request for parental contact. During the October 26,
2013 visit with Martin, Valerio and Rodriguez also interviewed L.S., who said that she
never had a problem with her father, Doe, and that she has a nice relationship with him.
Id. ¶ 82.c.
(4)

On November 4, 2013, Rebecca Rodriguez called the complaining witness

in Doe’s criminal case and spoke with her about Doe’s request for parental contact. In

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their conversation, Rodriguez informed the complainant that the purpose of the interview
was to get her perspective on Doe’s request for parental contact. The complaining
witness stated that she did not see a reason for her to be interviewed because she had
nothing positive to say about Doe. The complaining witness also stated, in response to
Rodriguez’s question whether Doe should be permitted to reside with M.S., “Why should
he live happy and comfortable when he took something from [me] that [I] can’t get
back[?]” Rodriguez asked if the complaining witness would be willing to undertake a
face-to-face interview with Rodriguez; the complaining witness refused that request. The
complaining witness indicated, however, that she would be willing to speak further by
phone. The next day, November 5, 2013, Rebecca Rodriguez called the complaining
witness several times and left several voicemails, but Rodriguez never heard back from
the complaining witness. Id. ¶ 82.d.
(5)

Also on November 4, 2013, Valerio and Rennie Rodriguez interviewed

Jane Doe at her residence. Jane Doe told them that she “feels completely safe with [Doe]
residing with their son.” She also provided a written statement indicating her strong
desire to live together with Doe and their son. Id. ¶ 82.e.
(6)

On November 8, 2013, Valerio and Rennie Rodriguez visited Bronx

Family Court and attempted to review the files of Doe’s petitions for visitation with L.S.
and M.S. They were ultimately not able to review these records. Id. ¶ 82.f.
(7)

On November 9, 2013, Valerio and Rennie Rodriguez visited the New

York Police Department’s Special Victims Bureau in the Bronx. There they received
information relating to Doe’s 2005 criminal case. Id. ¶ 82.g.

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(8)

On November 19, 2013, Valerio and Rebecca Rodriguez visited the Bronx

District Attorney’s Office, where they reviewed documents relating to Doe’s 2005
criminal case. Id. ¶ 82.h.
(9)

On December 6, 2013, Valerio and Rebecca Rodriguez visited Bronx

Family Court and, having received permission from Doe, reviewed the files for Doe’s
petitions for visitation with L.S. and M.S. Id. ¶ 82.i.
On November 18, 2013, Doe’s attorney provided Lima with a clinical evaluation of Doe
conducted by a psychiatrist, see JSF Ex. G, which Lima forward to Rosado and Valerio. Id.
¶ 83. The psychiatrist recommended that Doe be permitted to return to his family, concluding:
“[I]t is my opinion to a reasonable degree of medical certainty that his risk of abusing his son is
virtually nil and that he should be allowed to live with his family. Indeed, if one were to do an
analysis based on the best interest of the child and weigh the benefits of [Doe’s] return home and
cohabitation with his family versus the risks to his son of doing so, the result would very much
support his return to his family.” JSF, Ex. G at 16359.
On December 3, 2013, Doe’s attorney sent a letter to Lima that noted that 63 days had
passed since October 2, 2013, when Lima had told Doe’s attorney that DOCCS would be
undertaking an “expedited” investigation under the Parental Contact Protocol. Id. ¶ 84 & Ex. H.
The letter requested that DOCCS either immediately conclude its investigation or inform Doe’s
attorney of the reasons for the delay. Id. Lima did not provide any explanation of the delay to
Doe or Doe’s attorney. Id.
On December 19, 2013, Rosado submitted to Lima a report summarizing the results of
the investigation. Id. ¶ 85 & Ex. I. Rosado’s report was based on the documents collected and
prepared by Valerio, Rennie Rodriguez, and Rebecca Rodriguez, along with the material

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provided by Doe’s attorney. Id. ¶ 86. Rosado submitted those documents to Lima; they
constituted the entirety of what Rosado reviewed in connection with his investigation. Id.; see
also JSF, Ex. J. The report did not make a recommendation of whether Doe should be permitted
to reside with M.S. JSF, Ex. I. Before this report, Valerio had been transferred to another parole
office. He gave no input or recommendations regarding Rosado’s December 19, 2013 report to
Lima. JSF ¶ 85.
Two months later, on February 21, 2014, Lima issued a determination denying Doe any
contact with M.S. Id. ¶ 87 & Ex. K. Lima did not consider or permit Doe to have limited
contact with M.S., having determined that he did not need to consider whether to permit limited
contact because Lima had understood Doe to have requested to reside with M.S. and not to have
requested limited or supervised contact with M.S. Id. In his determination, Lima acknowledged
that Doe “presently denies guilt and has elicited quite a bit of community support.” JSF, Ex. K.
But, Lima concluded, “[I]t would not be in the best interest of the child to be put at risk if [Doe’s
request] was to be approved.” Lima stated that, in committing his crimes, “the subject was
extremely manipulative and engaged in behaviors that involved extensive grooming, intimidation
and coercion of the 13 year old victim,” and that the crimes “occurred within the family
constellation and in some instances while other family members were present in the residence.”
Id. Lima noted that “[c]onsidering the degree of manipulation needed to engage in this crime
without detection, the subject’s denials are a significant concern. While the attorneys have
submitted several sex offender treatment provider[s] who support the subject, it should be noted
that none of these providers contacted the victim as was done by the Parole Officer in this case.
The victim’s perspective is always important and in this case along with police reports reveal an

18

extensive web of deception as part of this crime. Based on the subject’s denials there is no
reason to believe that the subject has shown true progress in treatment.” Id.
Although the Parental Contact Protocol calls for investigations pursuant to it to be
completed within 45 days, the investigation into Doe’s request for contact with M.S. lasted
longer, id. ¶ 88, at least 137 days, beginning on October 7, 2013 at the latest and ending with
Lima’s February 21, 2014 determination denying Doe any contact with M.S.
5.

Appeal of Lima’s Determination and Aftermath of the Investigation

On April 3, 2014, Doe notified William Hogan, the regional director of DOCCS
responsible for overseeing the Manhattan VI Area Office, of his intention to appeal Lima’s
determination denying Doe contact with M.S. Id. ¶ 89. Pursuant to the Parental Contact
Protocol, Hogan then scheduled a “Parental Case Conference” in Doe’s case for May 5, 2014.
Id.
Prior to the conference, on April 25, 2014, Doe filed this lawsuit. Id. ¶ 90; see also
Dkt. 1. John Doe and Jane Doe also sought emergency relief from this Court, Dkts. 6–9. That
application was the subject of a series of emergency hearings before this Court. The Court
encouraged Hogan to rule promptly on Doe’s appeal, so as to permit the Court—if Hogan’s
ruling did not moot Doe’s bid for emergency relief—to take Hogan’s assessment into account.
See Dkt. 48.
Doe, Jane Doe, and their attorneys attended the May 5, 2014 conference with Hogan, as
did Lima, who attended at Hogan’s request and over Doe’s and Jane Doe’s objection. Id. ¶ 91.
On May 22, 2014, Hogan issued a decision reversing Lima’s determination and
permitting Doe to have contact with M.S. Id. ¶ 92 & Ex. L. Hogan’s order stated that the Parole
Board’s special condition prohibiting Doe from having contact with anyone under age 18

19

without the permission of the parole officer is “modified to allow [Doe] contact with his
biological son, [M.S.]. This may result in possible reunification with his son in the marital
household.” JSF, Ex. L. Hogan noted, however, that Doe “is still subject to the original
condition of his release,” and that his decision “does not preclude any future decision to bar
[Doe] contact with his son based on emerging issues, conditions or circumstances which would
indicate to a parole officer that he is likely to or has sexually reoffended any child.” Id.
In making that determination, Hogan reviewed the same information available to Lima
when Lima had barred contact between Doe and M.S. including Rosado’s report and the
documents prepared during the investigation. Id. ¶ 92. Hogan did not review any material that
had not been reviewed by Rosado or Lima, save an additional letter Doe’s attorneys submitted.
Id. In making that determination, Hogan did not seek the advance approval of the Parole Board
or of a court or seek any modification or amendment of Doe’s conditions of parole supervision.
Id.
Around June 4, 2014, Doe received modified parole conditions from his parole officer in
the Bronx Area II Office. These permitted him to have unrestricted contact with M.S. and with
L.S. Id. ¶ 93. Doe thereafter returned to reside with Jane Doe and M.S.
During the duration of Doe’s supervision by the Manhattan VI Area Office, Doe was
compliant with all conditions of parole. The parole officers who supervised him were not aware
of any instances in which he harmed L.S. or M.S., including during the period in which he was
permitted to have parental contact with either of them. Id. ¶ 94.
B.

Procedural Background

On April 25, 2014, plaintiffs filed their initial complaint, pseudonymously and under seal.
See Dkts. 1–5. On May 2, 2014, plaintiffs moved for a temporary restraining order and a

20

preliminary injunction. Dkts. 6–9. They withdrew that motion after DOCCS, on May 22, 2014,
permitted contact between Doe and M.S., see Dkt. 45, and revised Doe’s parole conditions to
permit unrestricted contact with M.S., see Dkts. 52, 54–58. On June 26 and August 15, 2014,
Rosado and Scott filed answers. Dkts. 68, 94. On July 2 and July 30, 2014, the remaining
defendants filed motions to dismiss. Dkts. 73, 82, 86.
On September 4, 2014, with leave, plaintiffs filed a First Amended Complaint (“FAC”),
the operative complaint today. Dkt. 100. The FAC brings three claims, all under 42 U.S.C.
§ 1983, asserting violations of plaintiffs’ constitutional rights to substantive due process, FAC
¶¶ 90–97, freedom of association, id. ¶¶ 98–104, and procedural due process, id. ¶¶ 105–12. The
FAC named as defendants Anthony Annucci, DOCCS’s acting commissioner; Lima; Cappiello;
Valerio; Scott; and Rosado, along with Rennie Rodriguez and Rebecca Rodriguez. Id. ¶¶ 13–21.
On September 8, 2014, plaintiffs voluntarily dismissed their claims against several defendants
named in the original complaint. See Dkt. 104.
Between September and December 2014, Scott filed an answer, Dkt. 127, and the other
defendants filed motions to dismiss, which plaintiffs opposed, see Dkts. 112, 114, 116, 119–21,
124–25, 130–31, 133, 141–43, 145.
On July 15, 2015, the Court issued an opinion and order granting the motions as to
Rennie Rodriguez and Rebecca Rodriguez but otherwise denying all motions to dismiss. Dkt.
146 (Doe v. Annucci, No. 14 Civ. 2953 (PAE), 2015 WL 4393012 (S.D.N.Y. July 15, 2015)).
On August 6, 2015, Annucci, who had been sued in his official capacity and against
whom only injunctive relief was sought, filed an interlocutory appeal of the Court’s denial of his
motion to dismiss, on the ground that the case against him was barred by sovereign immunity.
Dkt. 169. On May 10, 2016, after Doe’s term of parole had ended on March 2, 2016, plaintiffs

21

and Annucci filed a motion to voluntarily dismiss Annucci as a defendant with prejudice, Dkt.
198,2 which, on May 17, 2016, the Court granted, Dkt. 200.
Fact discovery ended on July 1, 2016. Dkt. 205. On August 18, 2016, the Court held a
pre-motion conference and set a schedule for summary judgment briefing. See Dkt. 218. On
October 18, 2016, the parties filed the JSF and attached exhibits. Dkt. 229. On November 10,
2016, plaintiffs filed their motion for summary judgment as to liability against all defendants,
Dkt. 233, and included a Rule 56.1 Statement, Dkt. 234, a memorandum of law, Dkt. 235, and a
declaration of Blair R. Albom in support, Dkt. 236, which attached exhibits. On December 23,
2016, Lima and Valerio filed a motion for summary judgment, Dkt. 264, and, in support,
declarations of Lima, Dkt. 265, and Valerio, Dkt. 266, an affirmation of Jeffrey P. Mans, Dkt.
267, a Rule 56.1 Statement, Dkt. 268, a response to plaintiffs’ Rule 56.1 Statement, Dkt. 269,
and a memorandum of law, Dkt. 270.3 On December 23, 2016, Rosado filed a declaration in
support of his motion for summary judgment, Dkt. 245, which included a response to plaintiffs’
Rule 56.1 Statement and included Rosado’s Rule 56.1 Statement, and filed a memorandum of
law, Dkt. 246. On December 26, 2016, Cappiello filed a memorandum of law in opposition to
plaintiffs’ motion, Dkt. 253, and a declaration of Robert A. Soloway in opposition, Dkt. 258. On
January 26, 2017, plaintiffs filed a reply in support of their motion and an opposition to
defendants’ motions, Dkt. 272, as well as responses to Lima’s and Valerio’s Rule 56.1 Statement
and Rosado’s Rule 56.1 Statement, Dkts. 273–74, and an additional declaration of Blair R.

2

Plaintiffs and Annucci had filed a stipulation of dismissal of Annucci’s appeal in the United
States Court of Appeals for the Second Circuit.
3

Due to ECF deficiencies identified by the Clerk of Court, these filings were re-filed several
weeks after their initial filing. The Court treats them as timely and cites here to the later, ECFcompliant filings.
22

Albom in support of plaintiffs’ motion for summary judgment, Dkt. 275. On February 15, 2017,
Rosado, and Lima and Valerio, filed reply memoranda of law in support of their motions. Dkts.
279–80.
II.

Applicable Legal Standards for a Motion for Summary Judgment
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 also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
If the movant meets its burden, “the nonmoving party must come forward with
admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary
judgment.” Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir. 2008). “[A] party may
not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion
for summary judgment.” Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (internal quotation
marks and citation omitted). Rather, 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)(A); see also
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, 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

23

Cir. 2012) (quoting Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003)) (internal quotation
marks omitted).
III.

Discussion
Plaintiffs bring damages claims under § 1983 for violations of three constitutional rights:

to (1) familial association under the First Amendment, and to (2) substantive and (3) procedural
due process under the Fourteenth Amendment. Plaintiffs argue that each defendant—all parole
officials at DOCCS—caused deprivations of these rights.4 With discovery complete, and with
the facts largely undisputed, plaintiffs argue that the undisputed facts establish each defendant’s
liability, supporting entry of summary judgment as to liability. Three defendants, Lima, Valerio,
and Rosado, in turn pursue summary judgment in their favor as to liability. While denying that
plaintiffs’ rights were infringed, they primarily argue that the evidence does not establish that
they were personally involved in such infringements and/or that they are entitled to qualified
immunity. A fourth defendant, Cappiello, opposes plaintiffs’ summary judgment motion on the
same grounds as the other defendants, but does not move for summary judgment. The fifth
defendant, Scott, neither moved for summary judgment nor filed a brief opposing plaintiffs’
motion.
The Court first reviews the constitutional rights on which plaintiffs’ claims are based and
assesses whether plaintiffs were deprived of these rights. For the reasons explained below, the
Court finds—based on the undisputed facts—that plaintiffs’ rights were infringed during parts of
both periods in which Doe was categorically barred from contact with his infant son. The Court

4

Plaintiffs have not sued DOCCS for damages, presumably because such a suit would be barred
by principles of sovereign immunity. See Will v. Michigan Dep’t of State Police, 491 U.S. 58,
71 (1989) (holding states and state governments are not “persons” within meaning of § 1983 and
are therefore protected by sovereign immunity from suits brought under § 1983).
24

then considers defendants’ claim of qualified immunity and, for each, whether that defendant
was or was not personally involved in these violations so as to be liable, or whether material
disputes of fact prevent entry of summary judgment as to liability.
A.

Were Plaintiffs Deprived of Constitutional Rights?

Although plaintiffs claim deprivations of three constitutional rights, the analysis as to
two—to intimate association and to substantive due process—is coextensive. As the Second
Circuit has explained, “[t]he source of the intimate association right has not been authoritatively
determined,” in that the Supreme Court has considered claims as to this right in connection with
both the First Amendment and the Fourteenth Amendment’s Due Process Clause. See Adler v.
Pataki, 185 F.3d 35, 42–43 (2d Cir. 1999); see also Matusick v. Erie Cty. Water Auth., 757 F.3d
31, 57 n.17 (2d Cir. 2014) (recognizing lack of clarity as to source of the right). The Second
Circuit has analyzed this right using the framework of substantive due process because the
Supreme Court has described the right as a “fundamental element of personal liberty.” See Patel
v. Searles, 305 F.3d 130, 135–38 (2d Cir. 2002) (quotation omitted); see also Garten v.
Hochman, No. 08 Civ. 9425 (PGG), 2010 WL 2465479, at *4 (S.D.N.Y. June 16, 2010) (“Where
the intimate association right at issue is tied to familial relationships and is independent of First
Amendment retaliation concerns . . . the Second Circuit has employed an analysis under the
framework of the Fourteenth Amendment right to substantive due process.”). This Court follows
this approach and refers to these two claims together as plaintiffs’ substantive due process claim.
It is well established that a parent’s interest in maintaining a relationship with his or her
child is a fundamental liberty interest protected by substantive due process. United States v.
Myers, 426 F.3d 117, 125 (2d Cir. 2005); see also, e.g., Troxel v. Granville, 530 U.S. 57, 65–66
(2000) (plurality opinion) (“[T]he interest of parents in the care, custody, and control of their

25

children—is perhaps the oldest of the fundamental liberty interests recognized by this Court.”);
Santosky v. Kramer, 455 U.S. 745, 753 (1982) (“The fundamental liberty interest of natural
parents in the care, custody, and management of their child does not evaporate simply because
they have not been model parents[.]”). This right applies reciprocally to both parents and their
children. E.g., Southerland v. City of New York, 680 F.3d 127, 142 (2d Cir. 2012).
Restrictions on such protected liberty interests are subject to strict scrutiny. “[T]he
Fourteenth Amendment ‘forbids the government to infringe fundamental liberty interests at all,
no matter what process is provided, unless the infringement is narrowly tailored to serve a
compelling state interest.’” E.g., Washington v. Glucksberg, 521 U.S. 702, 721 (1997)
(alteration omitted) (emphasis in original) (quoting Reno v. Flores, 507 U.S. 292, 302 (1993)).
The doctrine of substantive due process thereby guards against the “exercise of power without
any reasonable justification in the service of a reasonable governmental objective,” County of
Sacramento v. Lewis, 523 U.S. 833, 840, 846 (1998). At the same time, to assure that the
Constitution does not become “a font of tort law,” an infringement must be sufficiently serious
and arbitrary that “it may fairly be said to shock the contemporary conscience.” Id. at 847 n.8.
To violate substantive due process in connection with an infringement of the liberty interest in
familial association, the compulsory separation of parent from child must have been “prohibited
by the Constitution” independent of compliance with procedural due process. Southerland, 680
F.3d at 152 (quotation and alteration omitted).
The Second Circuit has applied strict scrutiny to restrictions on liberty incident to postprison supervisory regimes, whether denominated as parole (as in New York State) or as
supervised release (as in the federal system). Most apposite, in Myers, the Second Circuit
considered a special condition of supervised release prohibiting the defendant “from spending

26

time alone with his child absent authorization from the U.S. Probation Office.” 426 F.3d at 120.
This provision was imposed pursuant to 18 U.S.C. § 3583(d), which required that conditions of
supervised release “involve[] no greater deprivation of liberty than is reasonably necessary” to
achieve the statute’s purposes. The Second Circuit, per then-Judge Sotomayor, held that, to
satisfy substantive due process, such a restriction on a releasee’s liberty “must reflect the
heightened constitutional concerns” of strict scrutiny, meaning that the deprivation must be
“narrowly tailored to serve a compelling government interest.” Myers, 426 F.3d at 126.
Two Second Circuit cases, each involving conditions separating a releasee parent and
child, frame the Court’s assessment of plaintiffs’ claim of an unconstitutional deprivation of
substantive due process.
In Myers, as noted, the Second Circuit held that a supervised release term prohibiting a
defendant from spending time alone with his child was subject to strict scrutiny. However, the
Circuit held that it could not determine, on the record before it, whether that condition satisfied
strict scrutiny for two reasons. First, it was unclear what the compelling government interest was
in that condition. Second, it was unclear whether the defendant, who was “the parent of a child
in foster care born out of wedlock,” in fact had a fundamental liberty interest. Myers, 426 F.3d at
127–30. The Second Circuit remanded to the district court to balance “the intended purpose of
the challenged condition” against the defendant’s interest, if any. Id.
In United States v. McGeoch, 546 F. App’x 44 (2d Cir. 2013) (summary order), the
Second Circuit applied strict scrutiny to a parole condition that—like the one here—barred the
defendant from any contact with a person under age 18 unless supervised by a person approved
by the parole officer. The condition restricted the defendant’s contact with his sons. Id. at 48
(“A condition of supervised release that prevents a father from seeing his children outside the

27

presence of an approved monitor is a severe one subject to careful scrutiny.”). The Circuit held
that, to determine whether such a condition satisfied due process, an individualized evaluation of
the threat the defendant actually posed to the safety of his children was necessary: “Absent an
individualized inquiry into whether [the defendant’s] sexual proclivities pose a threat to his sons
. . . the imposition of a harsh condition of supervised release that either prohibits interaction with
his children or makes such interaction subject to supervision by a person approved of by the
probation officer violates [the defendant’s] due process rights.” Id. at 49 (citing United States v.
Wolf Child, 699 F.3d 1082, 1092–93 (9th Cir. 2012)). Taking “no position on whether this harsh
application of [the parole condition] is warranted under the circumstances,” the Circuit remanded
to the district court to make this assessment, while directing that the district court must provide
the defendant “with an opportunity to be heard” and “make specific findings to justify such a
condition.” Id.
Myers and McGeoch guide the analysis of plaintiffs’ claims of an infringement of the
right to substantive due process. Together, they instruct that parole conditions that bar a parent
from all contact with a child or condition such contact on a parole officer’s approval implicate a
fundamental liberty interest in a familial relationship, are subject to strict scrutiny, require
individualized justification based on the threat posed by the defendant to the child, and require
that the releasee be given an opportunity to be heard before their imposition.
Here, to be sure, plaintiffs do not challenge Doe’s special parole condition on its face.
But they contend that the parole authorities—for portions of each period in which Doe was
quarantined from M.S.—egregiously misread that condition to treat it as mandating a categorical
ban on contact between Doe and his son. This, plaintiffs argue, was inconsistent with principles
of substantive due process, which required any such ban be justified with reference, and

28

narrowly tailored, to Doe’s individual circumstances. And, plaintiffs note, the special parole
condition—which, like that in McGeoch, expressly authorized parole authorities to give written
permission for such contact—anticipated that parole authorities would undertake such an
individualized inquiry. To the extent the parole authorities deprived Doe of contact with M.S.
during the two periods without undertaking an inquiry into whether it was safe for Doe to have
contact with his child and/or without justifying this ban based on the results of the inquiry that
was eventually undertaken, plaintiffs argue, they violated plaintiffs’ substantive due process
rights. Separately, plaintiffs argue that because the parole authorities denied Doe, for portions of
each period, the opportunity to be heard as to why a ban on contact with M.S. was unjustified,
these authorities also deprived plaintiffs of their procedural due process rights.
Based on its review of the summary judgment record—and the facts are almost entirely
undisputed—the Court holds that plaintiffs’ substantive and procedural due process rights were
infringed.
As to plaintiffs’ substantive due process claim: The parole authorities deprived Doe of
all contact with his infant son for a combined nearly 13 months, spanning two periods. See JSF
¶¶ 41–47, 59, 65–68, 92–93. During these periods, Doe was forced from his home, where he
lived with his wife, and relocated, for much of the two periods, to a homeless shelter. It is
undisputed that Doe, Jane Doe, and M.S. had a fundamental liberty interest in their familial
relationship. In order to be lawful, the parole officials’ bar on their cohabitation and Doe’s
contact with M.S. was required to be narrowly tailored to serve a compelling government
interest.
For significant parts of each period, however, the parole authorities’ order barring Doe
from contact with M.S. was neither factually justified nor narrowly tailored at all. These

29

deprivations of plaintiffs’ fundamental liberty interests were sufficiently arbitrary and egregious
to violate substantive due process.
The first period, between October 4, 2012 and February 7, 2013, lasted four months. The
first day of that period, the parole officials—Scott, Rosado, and Cappiello, and later that day,
Lima—justified barring Doe from contact with M.S. based on the special parole condition. That
decision was initially justified: The special parole condition barred Doe from contact with any
minor without “the written permission of the supervising parole officer.” And the parole
officials were permitted to deprive Doe of access to M.S. for a reasonable period while they
investigated whether any restriction on contact with M.S. was justified to advance the state’s
interest in protecting M.S., and if so, to narrowly tailor that restriction to that interest. See, e.g.,
Southerland, 680 F.3d at 153–54 (collecting cases holding, in context of removal of children
from parental home in interest of safety, that parents’ substantive due process rights are not
violated provided that a post-removal proceeding is promptly held to evaluate the basis for the
removal; court upholds four-day separation period).5
Thereafter, however, despite Doe’s complaints—first to Scott, Rosado, and Cappiello,
and then to their supervisor, Lima—no meaningful factual investigation ensued for three and one
half months. The parole officials did negligible investigation. The two substantive data points
the parole officials obtained disfavored a ban on contact with M.S., let alone a categorical ban:
Later on October 4, 2012, NYCATS’s assistant director, Cornelia Krieger, told Scott that Doe

5

To be sure, some six months before M.S.’s birth, Doe had alerted his earlier parole officer,
Rehal, to Jane Doe’s pregnancy, JSF ¶ 38, such that the parole officials potentially could have
inquired into the need for a ban on contact between Doe and his newborn before M.S. was born.
For purposes of this decision, however, the Court treats the parole officers as having been put on
notice of the need to apply the special parole condition on October 4, 2012, when Doe met with
Scott, Rosado, and Cappiello for an office report.
30

had been extremely compliant and had maintained a 100 percent attendance record at NYCATS,
and that NYCACTS assessed Doe to be at a low risk of recidivism with no indicators of
reoffending. JSF ¶ 49. And, on October 6, 2012, Doe provided Scott with a final order of the
Bronx Family Court granting him unsupervised visitation with L.S., Doe’s daughter, then age 13.
Id. ¶ 51. The parole officials, however, did not consider whether this information called the nocontact ban into question; they did not consider their decision to ban all contact with M.S. to be
subject to modification; and, strikingly, they did not consider whether the lesser alternative of
restricted contact between Doe and M.S. could be justified. Id. ¶¶ 43–45.
Between October 4, 2012 and January 24, 2013, the only actions taken to acquire
information relative to Doe were Scott’s unsuccessful attempt, on October 17, 2012, to obtain
Family Court records regarding Doe’s right to unsupervised visitation with L.S., id. ¶ 53, and
Scott’s monitoring of the petition Doe filed in Family Court on October 5, 2012, seeking
permission to have contact with M.S., id. ¶¶ 51–54. That petition was dismissed, on March 12,
2013, in deference to the parole authorities: Scott had told a Bronx Family Court investigator
that Doe could not have contact with anyone under age 18, see id. ¶ 52, and the Family Court, in
dismissing Scott’s petition, noted that “the conditions of the Petitioner’s probation indicated that
he is not to live in the same home as a child under the age of 18,” id. ¶ 54.
Not until January 24, 2013, was any serious inquiry into the need for a no-contact ban
undertaken. That day, Scott took up Doe’s complaints with Mary Osborne, the deputy director
of DOCCS’s Sex Offender Management Unit, who recommended an updated NYCATS
evaluation. Thereafter, events moved more quickly: The NYCATS evaluation resulted in a
recommendation, on February 4, 2013, that Doe be permitted to reside with Jane Doe and M.S.,

31

and on February 7, 2013, Scott gave Doe permission to return home and to have contact with
M.S. Id. ¶¶ 56–59.
This chronology unavoidably reveals an abject failure by parole authorities, during much
of the first four-month no-contact period, to engage at all with the issues presented by Doe’s
request to reside with his wife and newborn son. No concerted attention was given to whether
restrictions on contact with M.S., let alone a wholesale ban, were justified. The parole officials
instead read special parole condition 13 to mandate a complete ban, ignoring the portion of that
condition that expressly empowered them to permit such contact. The parole officials appear to
have tacitly treated special parole condition 13 as imposing a ban that could be overcome only in
the event of a court order authorizing visitation, and to have put the onus on Doe to take legal
action in Family Court to obtain such relief. But special condition 13 did not impose any such
regime. On the contrary: It expressly vested the parole officials with responsibility to determine
whether to permit contact, or restricted contact, between Doe and M.S.
As a result of this abdication, the parole officials gave no considerations to the factors
known to them that tended to disfavor the “harsh condition,” McGeoch, 546 F. App’x at 49, of a
total parent-child quarantine. These included that (1) unlike the victim of Doe’s rape conviction,
who was an adolescent girl, M.S. was a newborn boy and Doe’s biological son; (2) since his rape
conviction, Doe had been given permission, by the Bronx Family Court, to have unsupervised
access to his adolescent daughter, L.S.; (3) Doe had successfully completed sex-offender
treatment at NYCATS; and (4) NYCATS, two days after the parole officials applied the special
condition to bar all contact with M.S., opined to Scott that Doe had a low risk of recidivism with
no indicators of reoffending. See Myers, 426 F.3d at 127–28 (holding that, when defendant’s
prior offenses “involved girls” and “the PSR [had] stated that the focus of [the defendant’s]

32

pedophilia was an attraction to females,” for contact limitation to be imposed on defendant’s
contact with his “own son,” district court was obliged “to develop a record demonstrating the
danger to that child . . . how the condition will deter misconduct toward that child”; government
had “offered no evidence to show that [] child, a male, was in any danger from his father”).
Under these circumstances, the parole officials failed to justify the infringement on Doe’s (and
his wife and son’s) familial association rights. And they failed to tailor the restriction they
imposed to the facts particular to Doe. On this factual record, even if an initial period of
separation pending investigation of individualized circumstances would have been permissible,
the four-month ban on parent-child contact imposed here cannot be squared with strict scrutiny.
The second period in which all contact between Doe and M.S. was forbidden, between
September 5, 2013 and May 22, 2014, lasted eight and one-half months. A substantial portion of
that ban, too, cannot be justified consistent with Doe’s substantive due process rights and the
requirements of strict scrutiny. The ban was not resurrected by Lima and Rosado based on new
information. Instead, they overruled Scott’s decision to permit Doe’s return to his home based
on Doe’s earlier rape conviction and on the fact that the special parole condition banned contact
with persons under age 18 without the parole officer’s permission. JSF ¶ 65. The record does
not reflect that these officials considered the different factual context of Doe’s rape conviction
and his bid to live with his newborn son; that Doe had been permitted unsupervised contact with
his adolescent daughter and that these visits had been without incident; that Doe had completed
sex-offender treatment; or that NYCATS had found Doe to be at a low risk of recidivism and
that its evaluation had led it affirmatively to recommend resumption of contact between Doe and
M.S. Nor does the record reflect that the parole officials, in re-imposing the ban in September
2013, investigated or considered Doe’s behavior during the immediate prior seven months, when

33

Doe had resided, without incident, with M.S. The parole officials therefore cannot be said then
to have made an individualized assessment of whether the compelling state interest in child
safety justified a new ban on contact between father and son.
The four-week period between September 5, 2013, when the second ban took effect, and
October 2, 2013, when Lima—after being contacted by Doe’s attorney—agreed to initiate an
investigation under the newly operative Parental Contact Protocol, therefore, like the first threeplus months of the first no-contact period, cannot be squared with strict scrutiny’s requirements
that a restriction on familial association advance a compelling interest and be narrowly tailored
to do so.
The ensuing four-month period between October 2, 2013 and February 21, 2014, when
Lima issued a determination reaffirming the denial of contact between Doe and M.S. presents a
separate question as to substantive due process. In this period, an investigation was, finally,
undertaken that attempted to evaluate, pursuant to the Parental Contact Protocol, Doe’s
suitability for contact with M.S. Some portion of this period was properly used for that
evaluation, however belated it was; and the inquiry did probe some relevant issues, including the
facts of Doe’s criminal case, the views of Jane Doe, and the Bronx Family Court files underlying
Doe’s successful petition for visitation with L.S. However, the record does not supply any
justification for this investigation—during which Doe was barred from all contact with his son—
to take four months. Nor does the record reveal any justification for Lima’s determination to last
two months past December 19, 2013, when Rosado submitted his report. The Protocol called for
a 45-day inquiry; Doe’s counsel pressed Lima at the 63-day mark for a resolution; and the delay
of more than another two months from that point forward is unexplained.

34

The wholesale ban on contact between Doe and M.S. between February 21, 2014 (when
Lima reaffirmed his determination that no contact was appropriate), and May 22, 2014 (when
Hogan reversed Lima’s determination), also cannot be squared with strict scrutiny. Consistent
with Hogan’s reversal, which was based on substantially the same information, the evidence
before Lima clearly did not justify a complete ban. Lima based his conclusion on (1) the facts of
Doe’s rape conviction, which, he noted, had involved manipulation of a victim, and had occurred
in a family sitting; (2) Doe’s continued denial of guilt for that offense, which led Lima to doubt
that Doe had made “true progress” in treatment; and (3) the fact that the victim of the rape
offense opposed permitting Doe to have contact with his son, see JSF ¶ 82 (“Why should he live
happy and comfortable when he took something from [me] that [I] can’t get back[?]”). Even
assuming, however, that the first and second of these factors might justify some restrictions on
contact between Doe and M.S.,6 these did not justify a complete ban on contact between Doe and
his infant son, particularly given the ensuing clinical evaluations of Doe had not found a risk that
Doe would abuse his infant son, and given the availability of obvious less restrictive alternatives,
such as supervised visitation. And the after-the-fact reason Lima gave, during this litigation, for
never considering the lesser alternative of contact subject to restrictions—that he did not detect
any interest on Doe’s part in contact with M.S. unless it was unrestricted—lacks a factual basis.
The summary judgment record instead reflects that Doe repeatedly made plain his interest in
maximal contact with M.S. and had never articulated an all-or-nothing position. Under Myers
and McGeoch, Lima’s duty was to narrowly tailor any restriction on Doe’s family’s interest in

6

As to the third factor considered by Lima: While the views of the victim of Doe’s sexual
offense are entirely legitimate, those views—which expressed her continuing anger towards Doe
but said nothing about the risk Doe might present to a child—did not bear on the constitutionally
relevant inquiry: whether contact with Doe would jeopardize M.S.’s safety.
35

familial association to the interest on M.S.’s safety. The complete ban that Lima reaffirmed on
February 21, 2014 bespoke no attempt to do so.
As to plaintiffs’ procedural due process claim: Before depriving a person of a liberty or
property interest, the state, consistent with due process of law, must use procedures that balance
the interests involved in the deprivation. “The essence of due process is the requirement that ‘a
person in jeopardy of serious loss (be given) notice of the case against him and opportunity to
meet it.’” Mathews v. Eldridge, 424 U.S. 319, 348–49 (1976) (quoting Joint Anti-Fascist
Regugee Comm. v. McGrath, 341 U.S. 123, 171–72 (1951) (Frankfurter, J., concurring)). The
interests to be balanced are: “First, the private interest that will be affected by the official action;
second, the risk of erroneous deprivation of such interest through the procedures used, and the
probative value, if any, of additional or substitute procedural safeguards; and finally, the
Government’s interest, including the function involved and the fiscal and administrative burdens
or substitute procedural requirement would entail.” Id. at 335 (citing Goldberg v. Kelly, 397
U.S. 254, 263–71 (1970)). In assessing a process, “substantial weight must be given to the goodfaith judgments of the individuals charged” with administering government programs as to the
process due. Id. at 349. Nonetheless, “[t]he fundamental requirement of due process is the
opportunity to be heard ‘at a meaningful time and in a meaningful manner.’” Id. at 333 (quoting
Armstrong v. Manzo, 380 U.S. 545, 552 (1965)); see also Londoner v. City and Cty. of Denver,
210 U.S. 373, 386 (1908) (“[E]ven here a hearing, in its very essence, demands that he who is
entitled to it shall have the right to support his allegations by argument, however brief: and, if
need be, by proof, however informal.”).
As this Court recognized in denying defendants’ motions to dismiss, the Second Circuit
has addressed the process that must be afforded by state officials when they remove a child from

36

a parent’s custody out of concern for the child’s safety, an analogous situation to that here.
Although the parent has a fundamental liberty interest in his or her relationship with the child,
the state has a “profound” interest in the child’s welfare. Tenenbaum v. Williams, 193 F.3d 581,
593–94 (2d Cir. 1999). The Second Circuit has held that balancing these two weighty interests
permits the separation of the parent and child without a pre-deprivation hearing in emergency
circumstances, meaning a situation in which “the child is immediately threatened with harm,” id.
at 594 (quotation omitted), which includes “the peril of sexual abuse,” Nicholson v. Scoppetta,
344 F.3d 154, 171 (2d Cir. 2003). But the state still has the duty to undertake a “prompt” postdeprivation hearing after the child has been separated, as “the constitutional requirements of
notice and opportunity to be heard are not eliminated but merely postponed.” Kia P. v. McIntyre,
235 F.3d 749, 760 (2d Cir. 2000) (quotations omitted). And “the burden of initiating judicial
review must be shouldered by the government.” Id. (quotation and alteration omitted).
Applying these principles to the undisputed facts, plaintiffs’ procedural due process rights
were violated—in both periods—by the imposition of the ban on all contact between Doe and
M.S.
In the first period of separation, even assuming an emergency justified the removal of
Doe from his residence without a hearing, defendants were required to initiate a prompt postdeprivation hearing that gave Doe a meaningful opportunity to be heard. They did not do so.
After Doe moved out on October 4, 2012, it was not until January 29, 2013—nearly four months
later—that Doe was first interviewed by a social worker as part of the belated investigation into
whether Doe posed a threat to M.S. JSF ¶¶ 41–47, 56–58. Particularly given the fundamental
liberty interest at stake—a parent’s access to his newborn—that delay “violate[ed] [Doe’s] due
process rights.” McGeoch, 546 F. App’x at 49; see also Kia P., 235 F.3d at 761 (suggesting that

37

a period of 10 days in which parent and child were kept apart, even if “solely for purposes of
protecting the child from possible abuse or improper parental care . . . without a hearing . . .
[poses] a serious danger that . . . defendants would have violated the plaintiffs’ procedural due
process rights”). The Court need not fix the precise date on which the absence of a postdeprivation hearing deprived plaintiffs’ of their right to procedural process. Under any analysis,
the parole authorities’ failure to afford Doe a hearing became unconstitutional long before
January 29, 2013.
The same principles guide the assessment of the second period. By the time Doe was
ordered to leave the family residence with M.S. on September 5, 2013, Doe had resided with
M.S. for nearly seven months without known incident, since Scott permitted him to return home
on February 7, 2013. JSF ¶¶ 59, 68. And Scott’s supervisors had internally been aware since
mid-June 2013 that Scott had permitted Doe to reside with M.S. Id. ¶ 62. During the ensuing
two months, they assembled Family Court records and the NYCATS reassessment, id. ¶¶ 62–68,
but they did not arrange a pre-deprivation hearing. Instead, they abruptly told Doe, on August
22, 2013, that he was required to move out of the family home and would have to return to the
homeless shelter, a decision that took effect on September 5, 2013. Id. ¶¶ 66–68.
Under these circumstances, the parole authorities cannot claim that an emergency
justified dispensing with a pre-deprivation hearing. See Tenenbaum, 193 F.3d at 593–94 (parents
and children may be separated in “emergency circumstances” but, “[a]s a general rule . . . before
parents may be deprived of the care, custody or management of their children without their
consent, due process . . . must be accorded to them”); see also Wolf Child, 699 F.3d at 1092–93
(district court’s reasoning that defendant “‘is now a convicted sex offender’ and ‘cannot be
trusted with minor children’” did not justify a ban on contact with persons under age 18, given

38

the need to comply with the “requirements for imposing conditions that infringe on particularly
significant liberty interests,” which require explaining “how on the basis of [the record] evidence
the particular restriction is justified”).
The parole officials also denied Doe a prompt post-deprivation hearing in connection
with the second period. Valerio did not meet with Doe until October 10, 2013, more than a
month after Doe had been ordered out of the home. And the justifications given for initiating the
second no-contact period, which lasted nearly nine months, were not based on facts developed in
an individualized investigation into the threat Doe ostensibly posed to M.S. Instead, the parole
officials’ stated basis for removing Doe anew in September 2013 largely consisted of the circular
argument that the special parole condition required it, whereas, in fact, that condition allowed
these very officials to permit contact between Doe and M.S. At the same time, the parole
officials, before depriving Doe of this important liberty, made no effort to investigate perhaps the
most relevant evidence: whether Doe’s contact with M.S. over the preceding seven months
raised concerns about M.S.’s safety. A final basis for finding a procedural due process violation
is presented by the nearly nine-month period that parole authorities took before determining that
Doe could safely return home. Defendants have not articulated a justification, under the
Mathews balancing analysis, for why so long a period of deprivation was necessary for their
investigation to proceed. 7

7

Lima generally testified that there were “severe staffing issues” in the parole office, blaming
these and the complexity of the investigation for the time it took. See Lima Dep. 150–55; see
also Lima Decl., Dkt. 265, ¶ 45 (same). But defendants adduced no substantiation for the bare
claim of staffing shortages, let alone evidence justifying taking nine months before determining
that Doe could return home unsupervised. This claim also does not explain, without more, why
Lima took more than two months, after receiving Rosado’s report on December 19, 2013, to
make a determination (on February 21, 2014).
39

Accordingly, plaintiffs suffered violations of their substantive and procedural due process
rights during both periods when Doe was separated from M.S. The Court now inquires whether
the defendants sued here are liable for those violations.
B.

Are the Individual Defendants Liable Under § 1983?

Section 1983 provides redress for a deprivation of federally protected rights by persons
acting under color of state law. 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);
Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155–56 (1978).
It is undisputed that defendants, all of whom were DOCCS employees, acted at all
relevant times under color of state law. Defendants argue, however, that they are not liable for
the violations the Court has found of plaintiffs’ constitutional rights for two reasons: They (1)
are protected by qualified immunity and (2) were not personally involved in the violations.
1.

Defendants’ Claim of Qualified Immunity

Lima, Valerio, and Rosado assert they are entitled to qualified immunity as a basis for
entry of summary judgment in their favor. Cappiello invokes qualified immunity as a basis for
opposing plaintiffs’ motion. In denying the motions to dismiss, the Court rejected defendants’
similar claim of qualified immunity. Insofar as the facts established in discovery largely track
those pled and are substantially undisputed, the Court’s analysis here is similar to that on the
motions to dismiss. However, because a different standard applies to a qualified immunity claim
on summary judgment, and because the qualified immunity inquiry requires attention to each
distinct point in the chronology of events, the Court revisits defendants’ claim.

40

Qualified immunity protects federal and state officials from money damages unless the
facts show “(1) that the official violated a statutory or constitutional right, and (2) that the right
was ‘clearly established’ at the time of challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731,
735 (2011) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). A state official “cannot be
said to have violated a clearly established right unless the right’s contours were sufficiently
definite that any reasonable official in his [or her] shoes would have understood that he [or she]
was violating it.” City and Cty. of San Francisco v. Sheehan, 135 S. Ct. 1765, 1774 (2015)
(citation and alterations omitted). “Even if the right at issue was clearly established in certain
respects, however, an officer is still entitled to qualified immunity if ‘officers of reasonable
competence could disagree’ on the legality of the action at issue in its particular factual context.”
Walczyk v. Rio, 496 F.3d 139, 154 (2d Cir. 2007) (quoting Malley v. Briggs, 475 U.S. 335, 341
(1986)). The purpose of qualified immunity is to “give[] government officials breathing room to
make reasonable but mistaken judgments by protecting all but the plainly incompetent or those
who knowingly violate the law.” City and Cty. of San Francisco, 135 S. Ct. at 1774 (quotation
and alterations omitted). Qualified immunity is “an affirmative defense on which the defendant
officials bear the burden of proof.” E.g., Vincent v. Yelich, 718 F.3d 157, 166 (2d Cir. 2013).
As the Court recognized in denying the motions to dismiss, the fundamental rights
substantively at issue here were well established as of the events at issue. A line of decisions
including those in Myers, McGeoch, Troxel, Santosky, and Southerland, as reviewed above, had
established that a parent has a fundamental liberty interest in maintaining a relationship with his
or her child protected by the Due Process Clause; that the child has a reciprocal interest; that
restrictions on these liberty interests are subject to strict scrutiny and as such must be narrowly
tailored to serve a compelling state interest; and that these standards apply to parole conditions

41

akin to those here. See Doe v. Annucci, 2015 WL 4393012, at *11–15. The procedural rights of
a parent and child to a pre-deprivation hearing absent an emergency, or to a prompt postdeprivation hearing, had also been well-established, including in the Second Circuit cases of
Nicholson and Kia P. Defendants do not argue otherwise.
Under these circumstances, defendants may establish qualified immunity only if, on the
particular facts before them, “‘officers of reasonable competence could disagree’ on the legality
of the actions at issue.” Walczyk, 496 F.3d at 154 (citation omitted). On the undisputed facts,
there is no such argument available to the parole officials here for much of the two periods in
which Doe was denied contact with M.S.
As to the first period, some brief, initial period of mandated separation was presumably
lawful (and certainly protected by qualified immunity) to enable the parole officials to gather
facts and determine, in good faith, whether M.S. could safely be with Doe. However, (1) there
was no basis for such a period to last four months, and the officials’ investigative efforts were
sparse and effectively ended within two weeks; (2) the parole officers’ decision to bar all contact
was based not on a concerted investigation into the risk Doe posed to M.S., but on a blatant
misreading of the special condition to bar all contact with M.S. and to leave the parole officials
powerless to permit such contact, whereas in fact the condition gave the parole officials that very
discretion and no DOCCS policy required Parole Board approval before the officials could so
act, see Lima Dep. at 82–91; (3) even assuming the facts justified some restrictions on contact
between Doe and M.S.—such as supervised visitation—or made such restrictions within the
protection of qualified immunity, the parole officials here imposed a blanket restriction and
admittedly made no attempt to tailor the restriction to Doe’s circumstances; and (4) the officers

42

altogether denied Doe a prompt post-deprivation hearing. These basic lapses were not judgment
calls of the sort sheltered by qualified immunity
As to the second period, the Court assumes arguendo that imposition of some restrictions
on Doe’s contact with M.S. was justifiable within the protection of qualified immunity once the
parole officials senior to Scott decided to review her grant of permission to Doe to return home.
However, (1) despite taking more than two months between reopening this issue and demanding
that Doe leave his home, the parole officers did not provide him a pre-deprivation hearing; (2)
the investigation under the DOCCS protocol did not begin for a month after Doe left home, and,
also without any evident justification, lasted four-and-a-half months, some three months beyond
the 45-day period that the Protocol gave for such investigations; (3) the parole officers, in opting
again for a complete ban on contact with M.S., again failed to tailor—or consider tailoring—this
restriction, by now in the face of compelling evidence that a complete ban was unjustified; and
(4) the officers altogether denied Doe a post-deprivation hearing, until Doe’s lawsuit and bid for
emergency relief in this Court forced them to resort to Hogan, the DOCCS regional director, to
convene such a hearing (and to lift the ban, nearly nine months after it was imposed). These
lapses, too, were patent breaches of due process that fell outside the protection that qualified
immunity extends for good-faith judgment calls. This was not a case in which there was “an
objectively reasonable basis for the[] decision, whichever way they make it.” Doe ex rel. Doe v.
Whelan, 732 F.3d 151, 155 (2d Cir. 2013) (emphasis in original) (quoting Tenenbaum, 193 F.3d
at 596).
The Court accordingly (1) denies defendants’ summary judgment motions to the extent
based on qualified immunity and (2) holds that qualified immunity does not supply a basis to

43

deny plaintiffs’ summary judgment motions. At the most, qualified immunity would bar liability
for a very limited portion of each of the two periods.
2.

Defendants’ Personal Involvement

Liability under § 1983 requires that a defendant sued in his or her individual capacity be
personally involved in the violation of the federal right; a defendant’s supervisory authority is
insufficient in itself to create liability under § 1983. Richardson v. Goord, 347 F.3d 431, 435 (2d
Cir. 2001). “To proximately cause a . . . due process violation . . . a defendant must be
personally involved in the violation. A plaintiff may establish such personal involvement by
making any one of five showings (the ‘Colon factors’).” Warren v. Pataki, 823 F.3d 125, 136
(2d Cir. 2016) (citing Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)).
These are: 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 [the plaintiffs] by
failing to act on information that unconstitutional acts were occurring.” Id. (quoting Colon, 58
F.3d at 873); see also Paterson v. Cty. of Oneida, 375 F.3d 206, 229 (2d Cir. 2004) (“[A]
plaintiff must establish a given defendant’s personal involvement in the claimed violation in
order to hold that defendant liable in his [or her] individual capacity under § 1983. Personal
involvement . . . includes not only direct participation in the alleged violation but also gross
negligence in the supervision of subordinates who committed the wrongful acts and failure to

44

take action upon receiving information that constitutional violations were occurring.”) (citations
omitted)).
As to particular Colon factors: “Direct participation” means “personal participation by
one who has knowledge of the facts that rendered the conduct illegal.” Provost v. City of
Newburgh, 262 F.3d 146, 155 (2d Cir. 2001) (citation omitted); see also Terebesi v. Torreso, 764
F.3d 217, 234 (2d Cir. 2014) (“[A] ‘direct participant’ includes a person who authorizes, orders,
or helps others to do the unlawful acts, even if he or she does not commit the acts personally.”)
(citing Provost, 262 F.3d at 155). Personal involvement is also satisfied when a parole officer
“actually enforce[s]” a parole condition, for example, by arresting the parolee for a violation of
parole even if that parole officer did not originally impose the parole condition. Farrell v. Burke,
449 F.3d 470, 484 (2d Cir. 2006). “‘[G]ross negligence’ denotes a higher degree of culpability
than mere negligence. It is the kind of conduct where the defendant has reason to know of facts
creating a high degree of risk of . . . harm to another and deliberately acts or fails to act in
conscious disregard or indifference to that risk.” Raspardo v. Carlone, 770 F.3d 97, 116 (2d Cir.
2014). “A plaintiff pursuing a theory of gross negligence must prove that a supervisor’s neglect
caused his subordinate to violate the plaintiff’s rights in order to succeed on her claim.” Id.
at 117.
The Court now applies these standards to the individual defendants.
a.

First Separation Period

Plaintiffs claim that Lima, Rosado, Cappiello, and Scott were personally involved in the
violations of their rights during the first period when Doe and M.S. were separated. They do not
claim that Valerio was personally involved. Lima and Rosado dispute their involvement in this
period; Capiello does not; and Scott, as noted, did not respond to plaintiffs’ motion.

45

On the undisputed facts, the Court holds that Lima, Rosado, Cappiello, and Scott were
each personally involved in the constitutional violations in this period. Most centrally, all four
were involved in the October 4, 2012 decision to require Doe to move out of the family residence
and have no contact with M.S. Rosado, Cappiello, and Scott together told Doe that he was
barred from having contact with M.S. JSF ¶¶ 41–48.8 Cappiello was the senior parole officer
overseeing Doe’s parole between September 2012 and April 2013. Id. ¶ 6. At the meeting with
Doe, the three did not seek any input from Doe, including about his relationship with M.S.; they
explained that their decision to deprive him of contact with his son was required by special
parole condition 13, even though in fact it empowered the parole officers to authorize such
contact. Id. ¶ 41. They did not consider authorizing limited contact or modified ban. Id. ¶ 43.
Each’s involvement in the formulation and communication of the decision to bar Doe
categorically from contact with M.S. establishes the required personal involvement in the
deprivation.
As for Lima, later the same day, as supervisor of the other three, he received a personal
complaint from Doe about the order to leave home and separate from his son. Id. ¶ 47. He then
spoke to Cappiello, Rosado, and Scott about that decision and ratified it, telling his subordinates
that they made the correct decision given the special condition prohibiting such contact. Id.
These events, most notably Lima’s affirmative approval of the categorical ban, establish Lima’s
personal involvement in the deprivation of plaintiffs’ rights.
The defendants’ inaction during the ensuing four months, during which the ban remained
in place, reinforces this finding. Until near the very end of the period, when Scott (alone) took

8

Although Rosado, a senior parole officer, was not formally assigned to oversee Doe’s parole
supervision until the period of June 2013 until March 2014, he was involved in decisions about
Doe’s supervision starting in at least October 2012. Id. ¶ 5.
46

the actions that led her to rescind the ban, none of the four assessed or reassessed whether more
narrowly tailored restrictions could assure M.S.’s safety. Nor did any act to commission a postdeprivation hearing. These lapses, whether cast as direct involvement in a continuing violation
of the Doe family’s constitutional rights or as gross negligence that enabled this violation to
persist, support a finding of personal involvement. To be sure, Scott eventually took action to
assess the central issue: to examine whether Doe actually presented a threat to M.S. Id. ¶¶ 56–
59. Scott deserves credit for bringing about Doe’s meetings with the NYCATS social worker on
January 29 and February 4, 2013, whose recommendation led Scott, on February 7, 2013, to
reverse the ban and permit Doe to return home. See id. But Scott’s belated steps do not excuse
her role in instating the ban and her failure, as Doe’s immediate parole officer, to take any action
to examine whether it was actually necessary for more than three months.
Defendants’ arguments against liability are unpersuasive.
Rosado argues that he had no role in the October 4, 2012 decision to bar contact with
M.S. But that argument is foreclosed by the undisputed facts to which Rosado stipulated in the
JSF, which states that Rosado (with the others) made the decision to bar Doe from contact with
M.S. Id. ¶¶ 41–43. Consistent with his admission of involvement, Rosado admitted in his
declaration that he attended the October 4, 2012 meeting “in an advisory capacity,” Rosado Decl.
¶ 13, Dkt. 245, and in his deposition that he provided Cappiello with “a lot of counseling” on the
decision because he had significant experience supervising sex offenders on parole, Rosado Dep.
at 92–93. Cappiello also testified that the process leading to the decision to bar Doe from contact
with M.S. was “collaborative,” Cappiello Dep. at 112; Scott, too, testified that Rosado made the
decision that Doe had to leave the family residence and told Doe to do so, Scott Dep. at 51.

47

Lima argues that that his conduct on October 4, 2012 does not establish his personal
involvement in the decision to bar Doe from contact with M.S. because he did no more than
affirm that decision as correct. But Lima’s ratification of that decision, after Doe complained to
him, is enough to establish his personal involvement, and is undisputed. JSF ¶ 47. Reinforcing
Lima’s personal involvement is his testimony that he “probably agreed” with Cappiello that Doe
“could not continue in the residence he was in,” Lima Dep. at 204, that he “ha[d] no idea” if
Cappiello later conducted any investigation into whether contact with Doe would jeopardize
M.S.’s safety, and that the basis for barring Doe from contact with M.S. was Doe’s prior offense
and his (mis)reading of the special parole condition categorically to prohibit all “contact with
somebody under the age of 18,” id. at 205.
b.

Second Separation Period

Plaintiffs claim that Lima, Valerio, Rosado, and Scott were personally involved in the
deprivations of their rights during the second period when Doe and M.S. were separated.
Plaintiffs do not claim that Cappiello was personally involved. Lima does not dispute his
involvement; Rosado and Valerio dispute theirs; and Scott, again, has not responded to plaintiffs’
motion.
On the undisputed facts, Lima, Rosado, Valerio, and Scott were personally involved in
the constitutional violations during this period.
As to Rosado, he resurrected the issue of whether Doe—now back at home—should be
separated anew from his family, instructing Scott to review that issue, including with Lima. JSF
¶¶ 62–64. Rosado then participated in the decision—made without a pre-deprivation hearing—
again to deny Doe all access to M.S.; Rosado directed Scott to order Doe to move out of the
family home as soon as possible. Id. ¶¶ 62–65. That decision again was based on a reading of

48

the special parole condition to require complete separation; Rosado and the other officers did not
consider whether a more narrowly tailored restriction might suffice. Through March 2014,
Rosado was the senior parole officer assigned to oversee Doe’s supervision. Id. ¶ 5. Further
demonstrating his engagement in this issue, around September 19, 2013, Rosado stripped Scott
of supervision of Doe because Scott had earlier permitted Doe to have contact with M.S. Id.
¶ 69. Finally, after an investigation was initiated pursuant to the Parental Contact Protocol,
Rosado, on October 2, 2013, met with Lima and Scott to discuss how the investigation into
Doe’s request for parental contact would proceed, id. ¶¶ 72–74; and, on December 19, 2013,
Rosado reported to Lima on the investigation, after which Lima reaffirmed the ban on contact,
id. ¶ 85 & Ex. I.
In his defense, Rosado argues that he lacked ultimate authority over the decision
regarding Doe’s contact with M.S. But final authority is not required for personal involvement,
which can be established by a parole officer’s mere enforcement of an unconstitutional
condition. See Farrell, 449 F.3d at 484 (personal involvement requirement is satisfied when
defendant parole officer enforces a condition, even when that condition had been imposed by
another parole officer). In any event, whatever the capacity of higher-ups to overrule Rosado,
the undisputed facts reveal his exercise of authority over that decision; and Doe’s special
condition 13 itself empowered even Rosado’s subordinate, the line parole officer, to authorize
contact. Further, as Lima testified without contradiction, there was no protocol in DOCCS that
required a parole officer to obtain Parole Board approval before permitting contact between a
convicted sex offender and his child. Lima Dep. at 83–85. As Lima further admitted, there was
similarly “no written rule” that required a parole officer to obtain permission from his or her

49

senior parole officer or other parole officers senior in the chain of command, though Lima
testified that it was “good practice” to do so. Id. at 83–84, 89–91.9
Valerio makes the same argument: that the decision to bar Doe from contact with his
child was made above his pay grade. But Valerio undisputedly participated in that decision; and,
as Doe’s parole officer, had discretion under to modify Doe’s conditions of contact with M.S. as
expressly permitted in special condition 13. Moreover, Valerio enforced the decisions by
Rosado and Lima to prohibit contact between Doe and M.S. Valerio was Doe’s parole officer
starting in September 2013, replacing Scott, JSF ¶ 69, and knew that Doe contested the blanket
prohibition as illegal. Id. ¶ 77. Valerio’s enforcement of this unlawful ban is sufficient to
establish his personal involvement under § 1983. See Farrell, 449 F.3d at 484.
As to Scott, she, too, enforced the new prohibition on contact with M.S. that Lima and
Rosado had put in place: On August 22, 2013, Scott told Doe that he was not allowed to have
contact with M.S. and would need to leave home. JSF ¶ 66. Scott thereby participated in the
deprivation of Doe’s rights, although her role in doing so ended on September 19, 2013, when
Rosado replaced her with Valerio. Id. ¶ 69.
Finally, as to Lima, the facts easily establish—and he does not dispute—his personal
involvement in the acts held to violate Doe’s rights in the second period. On August 6, 2013, in
consultation with Rosado, Lima decided that Doe must leave the family residence. Lima did so
without holding a pre-deprivation hearing or considering the facts that suggested, at a minimum,

9

To be sure, Lima testified that although a parole officer “technically” has the authority to
permit contact, as a matter of “common sense” an officer would not exercise it because the
“reality” is that “[i]f a parole officer made that decision independently, their level of potential
accountability would be significantly higher.” Lima Dep. at 82–85. A parole official’s concern
over being held accountable for a decision is, however, no basis for clearly infringing a parolee’s
constitutional rights.
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