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SMITH v. MARCHEWKA

August 13, 1981

Donald G. SMITH, Plaintiff,
v.
Donald P. MARCHEWKA, Parole Clerk, Auburn Correctional Facility; Donald Mucurio, Parole Officer, 333 E. Washington Street, Syracuse, N. Y.; Robert J. Purcell, Senior Parole Officer, Auburn Correctional Facility; Edward R. Hammock, Chairman, Division of Parole, 1450 Western Ave., Albany, New York, 12203, Defendants



The opinion of the court was delivered by: FOLEY

MEMORANDUM-DECISION and ORDER

The plaintiff, presently an inmate of Attica Correctional Facility, submits a pro se complaint under 42 U.S.C. § 1983. In his usual manner, there is a typewritten, four-page addendum to the form supplied for these submissions by State prisoners. Also, as usual, the allegations and statements to my mind are difficult to follow and analyze in the search for violations of federal constitutional rights and laws that are necessary to support § 1983 actions. See Gomez v. Toledo, 446 U.S. 635, 640, 100 S. Ct. 1920, 1923-24, 64 L. Ed. 2d 572 (1980). The plaintiff seeks a temporary restraining order, detailed and drastic declaratory and injunctive relief, and immense compensatory and punitive damages from each of the defendants.

The plaintiff relates, as I read his complaint, that his grievances arose from the seizure of nude photos from his wife when she went to visit the plaintiff at Auburn Correctional Facility on or about July 27, 1979. The plaintiff alleges that these nude photos were forwarded to the Warden, then forwarded to the New York State BCI, who notified the Child Protective Agency in Onondaga County Court, and finally resulted in the filing of charges against the plaintiff and his wife in Onondaga Family Court, and against the plaintiff only in Onondaga County Court. Then occurred what plaintiff describes as "Parole Recission Hearings" that it is claimed violated his due process and equal protection rights under the First, Fifth, Sixth and Fourteenth Amendments of the Constitution, and forms the basis as I understand it for this suit under 42 U.S.C. § 1983 against the named defendant parole officials of New York State.

 The plaintiff states he filed this action before, and Magistrate Edward M. Conan of this Court filed a Report and Recommendation on November 7, 1980, recommending that inasmuch as the complaint sought release from confinement, habeas corpus was the proper remedy under Preiser v. Rodriguez, 411 U.S. 475, 489-92, 93 S. Ct. 1827, 1836-37, 36 L. Ed. 2d 439 (1973). Judge Edmund Port followed the recommendation and dismissed the complaint without prejudice. The present complaint states that plaintiff went back to the State courts and filed for habeas corpus in the Supreme Court, Cayuga County, and unsuccessfully appealed to the Appellate Division, Fourth Department, and then was denied leave to appeal by the Court of Appeals. To avoid the impact of Preiser v. Rodriguez, 411 U.S. 475, 93 S. Ct. 1827, 36 L. Ed. 2d 439 (1973), which was relied on by Magistrate Conan for dismissal of the previous complaint, the plaintiff apparently does not request release from confinement in this new complaint.

 It is difficult for the federal court to keep pace with the pro se filings of the plaintiff. As this is being written, there is another pro se habeas corpus application by him to be considered and decided by me in which he challenges the parole detainer, apparently involved in the situation here, which he claims was beyond the authority of the New York State parole officials to file and violated parole regulations. My office records show that plaintiff had a civil rights complaint dismissed by me on July 17, 1973. Then, apparently after violation of parole, the next civil rights complaint was dismissed by Judge Port on May 7, 1979. Thereafter, there has been a continuous submission by the plaintiff of civil rights complaints, habeas corpus petitions, and motions.

 My office record for this one State prisoner to the present (undoubtedly with more entries to come) demonstrates the task of record keeping:

 
(F) 7/17/73 CR dis. 73-CV-320
 
(P) 5/ 7/79 CR den. & dis. 79-CV-329
 
(C) 7/15/80 Complaint ordered filed & processed. 80-CV-566
 
(C) 11/ 7/80 Recommended complaint be dis. 80-CV-907
 
(C) 12/22/80 Recommended that motion to dis. be den., etc. 80-CV-566
 
(P) 1/ 8/81 Complaint dis. w/o prej. 80-CV-907
 
(F) 2/ 4/81 HC Pet. ordered filed & ...

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