Opinion
03-CV-1938 (SLT)(LB).
February 17, 2006
REPORT AND RECOMMENDATION
Plaintiff filed this pro se complaint under 42 U.S.C. § 1983 alleging that defendants violated his civil rights when they searched his home without his consent. Plaintiff also alleges that his parole was subsequently revoked in retaliation for his complaint about the illegal search of his home. Plaintiff seeks declaratory relief as well as compensatory and punitive damages for the alleged violations of his rights. Defendants move to dismiss plaintiff's complaint pursuant to Fed.R.Civ.P. 12(b)(6). The Honorable Nicholas G. Garaufis referred defendants' motion to the undersigned for a Report and Recommendation in accordance with 28 U.S.C. § 636(b). As both parties have submitted documents outside of the pleadings, and plaintiff has received the requisite notice pursuant to Local Civil Rule 56.2, defendants' motion will be treated as one for summary judgment as provided in 12(b). For the following reasons, it is respectfully recommended that defendants' motion for summary judgment should be granted.
This case was subsequently reassigned to the Honorable Sandra L. Townes.
Defendants provided plaintiff with the requisite "Notice to Pro Se Litigant Opposing Motion to Dismiss" along with a copy of Local Civil Rule 56.2, setting forth plaintiff's obligations in opposing a motion for summary judgment.
PROCEDURAL HISTORY
On April 17, 2003, plaintiff filed a pro se complaint under 42 U.S.C. §§ 1983, 1985(3) and (4) and 1988 alleging that defendants violated his rights as guaranteed by the First, Fourth, Fifth, Eighth and Fourteenth Amendments to the United States Constitution. By Memorandum and Order dated July 23, 2003, Judge Garaufis dismissed plaintiff's claims of malicious prosecution and unlawful imprisonment finding these claims barred by Heck v. Humphrey, 512 U.S. 477 (1994). Plaintiff's request to be released from prison was also dismissed. Finally, Judge Garaufis directed plaintiff to amend his complaint regarding his allegation that his home was illegally searched and that his parole was revoked in retaliation for his complaints about the alleged illegal search.Plaintiff filed an amended complaint on September 15, 2003 and defendants moved to dismiss the complaint on February 25, 2004. On June 3, 2004 plaintiff filed an affirmation in opposition to defendants' motion to dismiss along with supporting exhibits and a sworn affidavit, and on June 24, 2004 defendants filed their reply. On July 6, 2004, plaintiff submitted a sworn affidavit in response to defendants' reply. As previously noted, both parties have submitted matters outside of the pleadings. As plaintiff received the requisite notice from defendants required by Local Rule 56.2, the Court shall consider defendants' motion as a motion for summary judgment.
FACTUAL BACKGROUND
The following facts are drawn from the amended complaint dated September 15, 2003 (hereinafter, "the Am. Compl.") as well as the affidavits and exhibits submitted to the Court by both parties. On or about December 24, 1999, plaintiff was conditionally released from prison under the supervision of the New York State Department of Parole. Am. Compl. ¶ 2; Exhibit A to Declaration of Kevin P. McCaffrey, dated February 25, 2004, In Support of Defendants' Motion to Dismiss the Complaint (hereinafter, "February 25, 2004 McCaffrey Decl."). As a condition of release, plaintiff signed a "Certificate of Release to Parole Supervision" dated December 22, 1999. Am. Compl. ¶ 44; Exh. A to February 25, 2004 McCaffrey Decl. Plaintiff asserts that prior to signing the Certificate of Release, he had a lengthy discussion with "a legal representative" of the department of parole regarding condition four which requires parolees to, among other things, "permit the search and inspection of [their] residences and property." Am. Compl. ¶¶ 47-48; Plaintiff's Affidavit dated May 25, 2004 ¶¶ 6-7, 12-19 (hereinafter, "Plaintiff's Aff."). Plaintiff alleges that he signed the certificate of release with the understanding that the search and inspection of his residence would require plaintiff to give his consent before any search would be conducted unless there were "suspected violations of the law or Rules." Am. Compl. ¶¶ 47-48.
The following facts are undisputed unless otherwise noted.
In August of 2001 and again in September of 2001, plaintiff alleges he was told by family members that his parole officer, P.O. Disla, had searched his residence without his knowledge. Am. Compl. ¶¶ 3,4. At the time of the events in question, plaintiff lived in a room in the basement of his mother's privately owned home. Am. Compl. ¶ 21. Plaintiff's brother Allan, who was also on parole and supervised by parole officer Disla, lived in the same basement in a room next to plaintiff's room. Exhibit A to Declaration of Kevin P. McCaffrey, dated June 24, 2004, Transcript of Plaintiff's Parole Revocation Hearing held on December 19, 2001 at 23, 30 (hereinafter, Transcript at ___").
Plaintiff states that on August 28, 2001 he was informed by his eldest sister that she saw P.O. Disla "exit the grandchildren's bedroom and area of the house." Plaintiff's Aff. ¶¶ 27-28. Plaintiff further states that his eldest brother informed him on that same date that he had observed P.O. Disla "exit from the house basement area by [himself]" two weeks prior to that date. Id. ¶¶ 27, 29. Plaintiff alleges that over $2,000 of his property was stolen by P.O. Disla and he provides a detailed list of the stolen property in opposition to defendants' motion to dismiss. Plaintiff's Aff. ¶ 71.
Plaintiff's May 2004 affidavit alleges that P.O. Disla had randomly and illegally searched his room for a period of 14 months. Plaintiff's Aff. ¶ 34. However, other than this statement, plaintiff does not allege anything else about these searches.
Upon learning of these searches, which plaintiff maintains were illegal and made by forced entry into his home, plaintiff alleges he immediately attempted to complain to the Department of Parole. According to plaintiff he tried to make a formal complaint on August 28, 2001 regarding the alleged illegal searches by personally visiting the parole office and speaking with P.O. Disla and two other officials. Id. ¶¶ 31, 35. Plaintiff states that P.O. Disla denied that he had conducted any search of plaintiff's home. Id. ¶ 31. Plaintiff states that he then requested an interview with a supervisory official, but his request was refused. Plaintiff alleges that he subsequently wrote a letter to Sr. P.O. Kantrowitz complaining about the alleged illegal searches by P.O. Disla and attaches a copy of the letter dated September 4, 2001 to his affidavit. Exh. 1 to Plaintiff's Aff. Plaintiff asserts that Sr. P.O. Kantrowitz failed to take any action against P.O. Disla. Plaintiff further alleges that he attempted to complain to the department of parole by telephone on September 4, 2001 and in person on September 18, 2001, to no avail. Plaintiff's Aff. ¶¶ 38-40. Plaintiff states that he was not able to pursue his claim for theft of his property in state court as he was incarcerated on October 9, 2001. Id. ¶ 70.
Plaintiff alleges that defendants forced their entry into the premises. However, plaintiff's own allegations belie his claim that defendants forced their entry into the premises as family members who encountered P.O. Disla in the home did not report any forced entry.
"[T]here is no constitutional violation (and no available § 1983 action) when there is an adequate state post-deprivation procedure to remedy a random, arbitrary deprivation of property or liberty." Hellnic Am. Neighborhood Action Comm. v. City of New York, 101 F.3d 877, 880-82 (2d Cir. 1996) (emphasis supplied). Although plaintiff states that he was not able to pursue his claim for theft of his property because he was incarcerated, it is clear that plaintiff has filed other actions while incarcerated.
Plaintiff alleges that on the evening of September 20, 2001, around midnight he was summoned "to a loud and boisterous threatening confrontation in the courtyard-area of the front door of the [residence]." Id. ¶ 42. Plaintiff states that when he arrived at his front door he encountered a "threatening situation between defendants P.O. Disla and P.O. Joseph and his brother Allan."Id. ¶¶ 42-43. Plaintiff explains that he asked P.O. Disla what the problem was and claims that P.O. Disla and P.O. Joseph repeatedly stated that his brother Allan was out of control and it was unsafe for them to be there at the time. Id. ¶¶ 44-49. Plaintiff alleges that P.O. Disla stated that he was not there to search the residence and refused plaintiff's offer to come in to speak with plaintiff's mother. Id. ¶¶ 51-53; Am. Cmpl. ¶ 21. Plaintiff asserts that throughout the incident on September 20, 2001, he acted as a peacemaker and repeatedly told defendants P.O. Disla and P.O. Joseph that if they felt threatened by his brother Allan's behavior they should call the police. Id. ¶ 50. Plaintiff's version of the facts of this incident are supported to some extent by P.O. Disla's testimony during plaintiff's parole revocation hearing that he and his partner P.O. Joseph were involved in a confrontation with plaintiff's brother Allan outside of the Scott's residence on September 20, 2001, and that plaintiff served as peacemaker and tried to calm his brother down. Transcript at 21-23.
However, defendants' version of the events that night differ as to whether or not defendants were in fact there to conduct a search of plaintiff's home. Defendants assert that P.O. Disla requested permission from plaintiff that night to inspect his room and plaintiff refused stating that it was late and defendants were disrespecting his family. Transcript at 14-16. Plaintiff adamantly maintains that at no point during that evening did either defendants P.O. Disla or P.O. Joseph request permission to enter plaintiff's home and in fact, P.O. Disla refused plaintiff's offer to have defendants come inside to speak with his mother. Transcript at 30-31, 34-35; Am. Compl. ¶¶ 20-21.
On October 9, 2001, plaintiff was taken into custody for a parole violation resulting from the events of September 20, 2001. Transcript at 17-18. Plaintiff was charged with refusing to allow P.O. Disla to inspect his residence in violation of Rule 4 of the certificate of release. Id. Plaintiff claims that the only reason his parole was revoked was in retaliation for his complaints about P.O. Disla's alleged illegal searches of his home and not as a result of his refusal to consent to a search on the night of September 20, 2001. Plaintiff further charges that Sr. P.O. Kantrowitz refused to investigate plaintiff's false parole violation charge and Chairman Travis maintains a policy and practice of not investigating complaints about parole officers which permits retaliatory false charges. Finally, plaintiff asserts that ALJ Meringolo held a flawed hearing and did not allow plaintiff to submit relevant testimony to prove defendants' retaliatory conduct against him.
DISCUSSION
Standard for Granting a Motion for Summary Judgment
A motion for summary judgment may be granted when a court "determines that there is no genuine issue of material fact to be tried." Savino v. City of New York, 331 F.3d 63, 71 (2d Cir. 2003) (citing Fed.R.Civ.P. 56(c) and Celotex Corp. V. Catrett, 477 U.S. 317 (1986)). "A genuine issue of material fact exists 'if the evidence is such that a reasonable juror could return a verdict for the nonmoving party.'" Id. (citingAnderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986)). "The trial court's function in deciding such a motion is not to weigh evidence or resolve issues of fact, but to decide instead whether, after resolving all ambiguities and drawing all inferences in favor of the nonmoving party, a rational juror could find in favor of that party." Pinto v. Allsate Ins. Co., 221 F.3d 394, 398 (2d Cir. 2000).
"When a motion for summary judgment is made and supported . . ., an adverse party may not rest upon the mere allegations or denial of the adverse party's pleadings, but . . . must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). In other words the non-moving party must provide "affirmative evidence" from which a jury could return a verdict in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986). "Conclusory allegations, conjecture, and speculation . . . are insufficient to create a genuine issue of fact." Niagra Mohawk Power Corp. V. Jones Chemical, Inc., 315 F.3d 171, 175 (2d Cir. 2003) (quotingKerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998). Moreover, "[t]he mere existence of a scintilla of evidence' supporting the non-movant's case is also insufficient to defeat summary judgment." Id. (quoting Anderson, 477 U.S. at 252).
Where, as here, a party is proceeding pro se, the Court is obliged to "read [his] supporting papers liberally, and will interpret them to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). This is especially true in the summary judgment context when a pro se plaintiff's claims are subject to final dismissal. See, Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988).
Additionally, the Second Circuit requires the district court or the moving party to advise pro se plaintiffs of the consequences of failing to respond to a motion for summary judgment. Irby v. New York City Transit Auth., 262 F.3d 412, 414 (2d Cir. 2001) ("In the absence of such notice or a clear understanding by the pro se litigant of the consequences of failing to comply with Rule 56, vacatur of the summary judgment is virtually automatic."). As previously noted, defendants herein provided plaintiff with the requisite notice under Local Civil Rule 56.2.
Claims Under Section 1983
A complaint under 42 U.S.C. § 1983 must allege two essential elements. First, "the conduct complained of must have been committed by a person acting under color of state law." Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994) (citing Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on other grounds, by Daniel v. Williams, 474 U.S. 327 (1986)). Second, "the conduct complained of must have deprived a person of rights, privileges or immunities secured by the Constitution or laws of the United States." Id. "Section 1983 itself creates no substantive rights, [but] . . . only a procedure for redress for the deprivation of rights established elsewhere." Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993), cert. denied, 512 U.S. 1240 (1994). Finally, "[i]t is well settled in this Circuit that 'personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.'" Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (quoting Moffitt v. Town of Brookfield, 950 F.2d. 880, 885 (2d Cir. 1991)).
Plaintiff's Fourth Amendment Claim
The Fourth Amendment of the United States Constitution protects against unreasonable searches and seizures. "[Warrantless searches] are per se unreasonable under the Fourth Amendment — subject to only a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357 (1967). However, "[t]he Fourth Amendment does not bar all searches of a person's home; rather, it requires that no search will occur that is unreasonable." Clayton v. City of Kingston, 44 F. Supp 2d 177, 181 (N.D.N.Y. 1999) (citing United States v. Lovelock, 170 F.3d 399 (2d Cir. 1999)). In determining whether a search of a parolee's home is reasonable, this Circuit has recognized that parolees are not entitled to the same protections under the Fourth Amendment that other citizens are entitled to and the reasonableness of an alleged illegal search of a parolee's home is analyzed accordingly. See, United States v. Grimes, 225 F.3d 254, 258 (2d Cir. 2000); United States v. Newton, 181 F.Supp.2d 157, 161 (E.D.NY. 2002) ("parolee's status is relevant to the evaluation of what is a reasonable search").
In deciding whether an illegal search had been conducted by a parole officer, the court in Moore v. Vega, 371 F.3d 110, 115 (2d Cir. 2004) explained that the "unique relationship that exists between a parole officer and parolee accounts for the parolee's diminished expectation of Fourth Amendment protections." Thus, since plaintiff was on parole at the time of the events he complains of, his right under the Fourth Amendment to be free from unreasonable searches was diminished. Finally, in determining what is reasonable with regard to a warrantless search of a parolee's residence, this Court is guided by People v. Huntley, 43 N.Y.2d 175, 181, 401, N.Y.S.2d 31, 371 N.E.2d 794, 796 (1977), where the New York Court of Appeals determined that the conduct of a parole officer "must be rationally and reasonably [connected] to the performance of the parole officer's duty."
Defendants P.O. Joseph and ALJ Meringolo
As an initial matter, plaintiff's Fourth Amendment claim against defendants P.O. Joseph and ALJ Meringolo should be dismissed. As noted above, in order to state a claim for a constitutional violation under § 1983, a plaintiff must allege the personal involvement of each defendant. Wright v. Smith, 21 F.3d 501 (2d Cir. 1994). A close reading of plaintiff's complaint along with all the documents he submits in opposition to defendants' motion makes clear that other than being present during the September 20, 2001 encounter with plaintiff's brother, plaintiff does not allege that P.O. Joseph was personally involved in any violation of his rights. P.O. Joseph did not participate in the alleged unlawful search of plaintiff's home or in the decision to revoke plaintiff's parole. No reasonable jury could find that P.O. Joseph was involved in any alleged violation of plaintiff's Fourth Amendment rights.
Plaintiff alleges that P.O. Joseph was present at the parole office on October 9, 2001, when plaintiff was taken into custody for the parole violation he was charged with on that date, and that P.O. Joseph made inappropriate and threatening comments to plaintiff. However, verbal abuse is insufficient to sustain a claim under § 1983. Ramirez v. Holmes, 921 F.Supp. 204, 209 (S.D.N.Y. 1996); See Jermosen v. Coughlin, 878 F.Supp. 444, 449 (N.D.N.Y. 1995) (verbal threats do not violate the constitution "unless accompanied by physical force or the present ability to effectuate the threat."); see also, Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir. 1986) (upholding dismissal of claim of verbal abuse by prison official).
Similarly, plaintiff does not allege any facts that connect ALJ Meringolo to the illegal search of plaintiff's home. Plaintiff's amended complaint and opposition papers do not indicate that ALJ Meringolo was even aware of plaintiff's allegation regarding his complaint of illegal searches of his home. Accordingly, defendants' motion for summary judgment on plaintiff's Fourth Amendment claim as to P.O. Joseph and ALJ Meringolo should be granted.
Defendants Kantrowitz, Travis and Disla
Plaintiff alleges that P.O. Disla conducted an illegal and unauthorized search of his home as the certificate of release plaintiff signed did not give defendants the right to search plaintiff's residence without his permission unless defendants had a reasonable suspicion that plaintiff was in violation of his parole. Am. Compl. ¶¶ 45-48; Transcript at 30. Plaintiff asserts that as he was not in violation of his parole at any time prior to October 9, 2001, defendants' search of his home without his consent was illegal and in violation of his Fourth Amendment right to be free from unreasonable searches and seizures. Plaintiff alleges that he wrote a letter of complaint to Sr. P.O. Kantrowitz who did not act on his complaint. Exh. 1 to Plaintiff's Aff. Finally, Plaintiff attaches three letters addressed to the Chairman of the New York State Division of Parole, including one addressed directly to Chairman Travis, wherein plaintiff complains about, among other things, the illegal search of his home and the rule violation plaintiff was charged with on October 9, 2001. Exhs. 2, 3 and 5 to Plaintiff's Aff.
Defendants contend that plaintiff is mistaken in his belief that his permission is required to search his home, as the certificate of release he signed allows "the parole officers to search his person, residence and property at any time." Exh. A to February 25, 2004 McCaffrey Decl. Defendants note that the release signed by plaintiff does not indicate that permission by plaintiff was required to perform a search and correctly state that "while a standard authorization form is not to be taken as an unrestricted consent to any and all searches whatsoever, it upholds the right of the parole officer to conduct searches rationally and substantially related to the performance of his duty." New York v. Huntley, 43 N.Y. 2d 175, 182 (1977). Finally, defendants contend that plaintiff's Fourth Amendment claim should be dismissed as he fails to demonstrate that defendants searched his home.
In order to establish a Fourth Amendment claim under Section 1983, plaintiff must establish that an illegal search took place. Plaintiff has failed to demonstrate that defendants searched his premises. Viewing the facts in the light most favorable to plaintiff as the Court must, plaintiff alleges that P.O. Disla conducted two searches at plaintiff's mother's house while he was not present. Plaintiff's Aff. ¶¶ 26, 28-29. The record is clear that plaintiff resided with his mother and his brother Allan, who was also on parole. Id. at 43, 48; Am. Compl. ¶¶ 18, 21. Plaintiff complains about two particular illegal searches allegedly conducted by P.O. Disla on two separate occassions. However, plaintiff's opposition to the motion states that P.O. Disla may have searched a room occupied by his nieces and nephews and that Disla was seen leaving the basement area of plaintiff's home, an area of the home that plaintiff shared with his two brothers. Plaintiff's Aff. ¶¶ 28-29. It is undisputed that on both of these occassions, plaintiff was not at home and therefore did not witness Disla's alleged searches. Id. at ¶ 26.
As previously noted, when faced with a motion for summary judgment, the party opposing the motion cannot rely on the allegations made in his complaint, but must provide "concrete evidence from which a reasonable juror could return a verdict in his favor" Anderson v. Liberty Lobby, Inc., 477 U.S. at 257. In opposing defendants' motion, plaintiff has submitted two affidavits signed by himself, along with exhibits. However, other than plaintiff's assertions that these searches took place, plaintiff provides nothing to support his allegations that P.O. Disla searched his residence without his permission. At best, plaintiff has established that P.O. Disla conducted two searches of the house in which he resided while he was not present. However, this is plainly insufficient to withstand defendants' motion for summary judgment as plaintiff cannot attest to the circumstances of these searches based on his personal knowledge.
When the moving party has asserted facts showing that the non-movant's claims cannot be sustained, the opposing party must set forth specific facts showing that there is a genuine issue for trial, "and cannot rest on the mere allegations or denials" of his pleadings. Rule 56(e), Fed.R.Civ.P. See also, Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). Plaintiff's conclusory allegations cannot sustain his illegal search claim to defeat defendants' motion for summary judgment. The only "evidence" plaintiff provides that the alleged searches occurred are comments by plaintiff's siblings about events which occurred when he was not present. Plaintiff merely recites these comments in his affidavit and does not provide sworn affidavits from the two individuals he alleges have personal knowledge of the searches.
It is well established that allegations contained in affidavits which are not based on the affiant's personal knowledge are not sufficient to defeat a motion for summary judgment. Federal Rule of Civil Procedure 56(e) specifically requires that ". . . opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Thus, courts in this Circuit have held that "if the non-movant's affidavit fails to comply with Federal Rule of Civil Procedure 56(e), in that it is conclusory or not based on the affiant's personal knowledge, the affidavit would be insufficient to defend against a motion for summary judgment." Danzer v. Norden Systems, Inc., 151 F.3d 50, 57 n. 5 (2d Cir. 1998). See also, Randell v. United States, 64 F.3d 101, 109 (2d Cir. 1995); Attorney General v. Irish Northern Aid Comm., 668 F.2d 159, 162 (2d Cir. 1982).
Moreover, even if the Court accepts plaintiffs account of the alleged searches, the facts plaintiff provides do not support a claim that his room was illegally searched. As the Court noted previously, plaintiff was on parole and thus his expectation of privacy under the Fourth Amendment is diminished. In addressing the issue of whether or not a search conducted by a parole officer was reasonable, the court in United States v. Newton, 181 F.Supp.2d 157, 162 (E.D.N.Y 2002) examined the different regulations under New York law which authorize parole officers to conduct searches of a parolee's residence. One such regulation in the NYS Division of Parole's Policy and Procedure Manual allows a search of a parolee's residence upon the consent of the parolee or another adult resident in the household.Id. (emphasis supplied). It is clear from the record that plaintiff lived in his mother's residence and that there was only one entrance to and from his room in the basement, through the front door of the house. Am. Compl. ¶ 21; Transcript at 9. Taking plaintiffs facts as true, if P.O. Disla was seen leaving the basement or the niece and nephew's room, someone gave P.O. Disla access to the home.
Plaintiff's conclusory allegation that P.O. Disla entered his residence by force is not supported by the record.
Accordingly, defendant' motion for summary judgment should be granted and plaintiffs Fourth Amendment claim against P.O. Disla, Sr. P.O. Travis and Chairman Travis should be dismissed.
First Amendment Retaliation Claim
Plaintiff essentially alleges that after he complained about the illegal search of his home, his parole was revoked by defendants in retaliation for his complaint. Plaintiff accuses P.O. Disla of filing a false parole violation charge and defendants Sr. P.O. Kantrowitz and Chairman Travis of refusing to investigate plaintiff's complaint. "To survive summary dismissal, a plaintiff asserting First Amendment retaliation claims must advance non-conclusory allegations establishing: (1) that the conduct at issue was protected; (2) that the defendant took adverse action against plaintiff, and (3) that there was a causal connection between the protected speech and the adverse action."Dawes v. Walker, 239 F.3d 489, 492 (2d Cir. 2001), rev'd on other grounds, Phelps v. Kapnolas, 308 F.3d 130 (2d Cir. 2002).
The Court notes that plaintiff has successfully brought another action claiming retaliation. See C.J. Scott v. Coughlin, 344 F.3d 282 (2d Cir. 2003). In accordance withOutley v. City of New York, 837 F.2d 587, 591-92 (2d Cir. 1998), I did not consider this in deciding this motion.
Defendants do not address the issue of whether plaintiff's complaint to the Department of Parole about alleged illegal searches is protected activity under the First Amendment or that defendants took adverse action against plaintiff as a result of his complaints by revoking his parole. Defendants contend, however, that even assuming plaintiff had produced evidence to establish the first two elements of a First Amendment claim, plaintiff fails to produce evidence to show a causal connection between his complaints about alleged illegal searches and the revocation of his parole. Defendants assert that plaintiff fails to allege that the complaints he made were about any of the defendants or that any of the defendants were aware of plaintiff's complaints. Although this is an accurate statement as to ALJ Meringolo and P.O. Joseph, this is not an accurate assessment of the facts alleged as to the remaining three defendants.
Specifically, plaintiff's affidavit refers to P.O. Disla as the parole officer who conducted the alleged illegal searches and describes his attempts to complain to Sr. P.O. Kantrowitz. See Plaintiff's Aff. ¶¶ 20, 26-37. In addition, plaintiff attaches several letters addressed to defendants Sr. P.O. Kantrowitz and Chairman Travis wherein he complains about the alleged searches conducted by P.O. Disla. See Exhs. 1-3, 5 to Plaintiff's Aff.
As noted previously, "'personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.'" Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (quoting Moffitt v. Town of Brookfield, 950 F.2d. 880, 885 (2d Cir. 1991)). As to defendants ALJ Meringolo and P.O. Joseph, plaintiff does not allege that either of these defendants were even aware that plaintiff had complained about P.O. Disla, much less retaliated against plaintiff for his complaints about alleged illegal searches. Accordingly, defendants' motion for summary judgment on plaintiff's retaliation claim as to P.O. Joseph and ALJ Meringolo should be granted.
The Court finds that as to defendants Sr. P.O. Kantrowitz and Chairman Travis, plaintiff's retaliation claim must be dismissed, but for different reasons than those asserted by defendants. Plaintiff asserts that these defendants were aware of plaintiff's complaints about P.O. Disla since he had written letters to both defendants complaining about the alleged illegal searches. Plaintiff's Aff. ¶¶ 37, 64. However, liability under § 1983 cannot rest on respondeat superior or on "linkage in the . . . chain of command." Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003) (citing Al-Jundi v. Estate of Rockefeller, 885 F.2d 1060, 1065 (2d Cir. 1989), and quoting Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985)). In order to establish supervisory liability, plaintiff must show "(1) actual direct participation in the constitutional violation, (2) failure to remedy a wrong after being informed through a report or appeal, (3) creation of a policy or custom that sanctioned conduct amounting to a constitutional violation, or allowing such a policy or custom to continue, (4) grossly negligent supervision of subordinates who committed a violation, or (5) failure to act on information indicating that unconstitutional acts were occurring." Id. at 145 (citing Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).
Plaintiff's complaint tries to connect defendants Travis and Kantrowitz to his claim for retaliation by alleging that both defendants were aware of plaintiff's complaints against P.O. Disla and failed to act on his complaints. However, as to defendant Sr. P.O. Kantrowitz, plaintiff alleges nothing to suggest that he was involved in the decision to revoke plaintiff's parole. Moreover, plaintiff fails to connect Kantrowitz's inaction on his complaint to plaintiff's parole revocation. Accordingly, defendant Kantrowitz's motion for summary judgment should be granted.
Although plaintiff does allege that Chairman Travis had knowledge of his complaint, plaintiff fails to connect Travis to plaintiff's parole revocation. Accordingly, the Court should grant defendant Travis' motion for summary judgment.
As to P.O. Disla, plaintiff alleges that he filed a false charge in retaliation for plaintiff's complaints about the alleged illegal searches and that P.O. Disla was aware of these complaints, thus creating a connection between his complaints and the revocation of his parole. However, this Circuit has held that even if a plaintiff provides evidence in support of all three elements of a claim for retaliation, a defendant "may evade liability if it demonstrates that it would have disciplined [plaintiff] 'even in the absence of the protected conduct'" Graham v. Henderson, 89 F.3d 75, 79 (quoting Mount Healthy Sch. Dist. V. Doyle, 429 U.S. 274, 287 (1977)). Moreover, the Court must approach plaintiff's retaliation claim '"with skepticism and particular care,' because 'virtually any adverse action taken against [a person on parole] by a [parole officer] — even those otherwise not rising to the level of a constitutional violation — can be characterized as a constitutionally proscribed retaliatory act.'"Davis v. Goord, 320 F.3d 346, 353 (2d Cir. 2003) (citation omitted). As defendants have established that plaintiff's parole was revoked for his refusal to consent to a search and plaintiff has not established that the revocation was overturned on appeal, plaintiff's retaliation claim is barred by Heck v. Humphrey, 512 U.S. 477 (1994).
In Heck the Supreme Court held that a prisoner is precluded from suing for damages for an unconstitutional imprisonment unless and until he establishes the invalidity of the underlying conviction. Id. at 486-487. The Heck doctrine has been extended to apply to challenges to parole revocation. See White v. Gittens, 121 F.3d 803, 807 (1st Cir. 1997) ("Section 1983 action is not cognizable since any award of damages or declaratory relief would seriously call into question the as yet undisturbed validity of the state parole board's action."); Littles v. Board of Pardons Paroles Div., 68 F3d 122, 123 (5th Cir. 1995); Davis v. Cotov, 214 F.Supp.2d 310, 316 (E.D.N.Y 2002); Hill v. Goord, 63 F.Supp2d 254, 260-262 (E.D.N.Y. 1999); see also, Spencer v. Kemna, 523 U.S. 1, 18-21 (1998) (Souter, J. concurring) (assuming applicability of Heck to claims necessarily challenging validity of parole revocation confinements). As plaintiff fails to establish that his parole revocation has been declared invalid or called into question, plaintiff's retaliation claim against P.O. Disla is barred by Heck. Accordingly, the Court should grant defendants' motion for summary judgment.
Defendants also assert a qualified immunity defense on behalf of Chairman Travis, Sr. P.O. Kantrowitz and P.O.s Disla and Joseph and absolute immunity on behalf of ALJ Meringolo. As plaintiff has not established that his rights were violated, the Court need not address qualified immunity. "If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity." Saucier v. Katz, 533 U.S. 194, 201 (2001).
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten(10) days from service of this Report to file written objections. See also Fed.R.Civ.P.6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court. Any request for an extension of time to file objections must be made within the ten-day period. Failure to file a timely objection to this Report generally waives any further judicial review.Marcella v. Capital Dist. Physician's Health Plan, Inc., 293 F.3d 42 (2d Cir. 2002); Small v. Sec'y of Health and Human Services, 892 F.2d 15 (2d Cir. 1989); see Thomas v. Arn, 474 U.S. 140 (1985). (2001).SO ORDERED.