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RULLO v. RODRIGUEZ

January 29, 1985

NEIL RULLO, Plaintiff, against RAMON RODRIGUEZ, CHAIRMAN OF NEW YORK STATE BOARD OF PAROLE, GERALD M. BURKE, COMMISSIONER, JOSEPH V. SALO, COMMISSIONER, and MANUEL PARRON, COMMISSIONER, Defendants


The opinion of the court was delivered by: MOTLEY

CONSTANCE BAKER MOTLEY, Chief Judge

FINDINGS OF FACT AND CONCLUSIONS OF LAW

 This action is now before the court on the application of plaintiff, Neil Rullo, for a preliminary injunction to restrain defendants Ramon J. Rodriquez, Chairman of New York State Board of Parole, Gerald M. Burke, Commissioner, Joseph V. Salo, Commissioner and Manuel Parron, Commissioner from continuing plaintiff's detention and preventing plaintiff's participation in a temporary work release program.

 Plaintiff, Neil Rullo was sentenced on May 15, 1981 in New York County Supreme Court to a term of one year to three years for criminal sale of a controlled substance in the third degree, class A-III felony. Plaintiff was also sentenced on April 30, 1982 to a term of three years to life for criminal possession of a controlled substance second degree, Class A-II felony. Both sentences were to run concurrently because the charges arose from the same arrest.

 On March 27, 1983, Neil Rullo applied for work release based on the earliest release date of May 13, 1984. On June 13, 1983, plaintiff was permitted to participate in the temporary work release program pursuant to Article 26 of the Corrections Law since he was eligible for parole within one year. Subsequently, he was transferred to a less restrictive facility. Plaintiff commenced employment on June 20, 1983 with Albert's Limosine and continued for a period of seven months just prior to the sale of the company. New employment was secured with J.B.J. Flooring by plaintiff for an apprenticeship position.

 Plaintiff appeared before the Parole Board on March 27, 1984 for his initial parole board hearing. He was advised of the Parole Board decision to extend his minimum period of incarceration for two years. The Parole Board scheduled the next hearing for March, 1986. Plaintiff was removed from the work release program and subsequently transferred to a maximum security facility on March 30, 1984. On April 2, 1984, he was transferred to Downstate where he presently resides.

 On April 18, 1984, plaintiff brought a petition for writ of habeas corpus in the Supreme Court, Westchester County, challenging the Parole Board decision denying plaintiff's early release. This petition for habeas corpus was denied by Judge Marbach on June 7, 1984 and plaintiff filed Notice of Appeal from that decision on June 8, 1984. Apparently, his appeal presently is pending.

 On October 17, 1984, plaintiff commenced this action under 42 U.S.C. Section 1983. Plaintiff claimed that he was denied a due process hearing when the Parole Board determined to extend his parole date thus rendering him ineligible for participation in the temporary work release program. Plaintiff contends that he was not given notice of his removal from the work release program and that he was not given a hearing or written statement of the reasons for such removal. Plaintiff further asserts that he merely was informed verbally that when the Parole Board extended his parole release date, beyond one year, he was thereby rendered ineligible for continued participation in the program.

 In addition, he contends that he did not engage in the type of behavior or violate any rules that would require removal from the program. Plaintiff contends that the Parole Board's decision to extend his parole release date was based solely on the serious nature of the initial offense. The reason stated by the Parole Board was that the "guidelines do not account for the significant amount of drug involved in this case."

 For the reasons set forth below, plaintiff's motion for preliminary injunction is denied and the action is hereby discontinued.

 DISCUSSION

 Plaintiff's petition for writ of habeas corpus is based on the ground that plaintiff has been unlawfully deprived of his liberty by the decision of the Parole Board extending his parole release date and thereby rendering him ineligible for continued participation in the temporary work release program. This action is now before the court on plaintiff's motion for preliminary injunction. On November 28, 1984, the parties came before the court for oral argument after which the court ordered the parties to submit stipulated facts regarding the prior proceedings relevant to this action. Such facts are incorporated herein.

 On April 18, 1984, Plaintiff petitioned the Supreme Court of the State of New York, Westchester County, for a writ of habeas corpus. The petition was based on the ground that he was unlawfully deprived of his constitutional liberty by the March 27, 1984 decision of the Parole Board denying him parole and extending his incarceration two years which resulted in his removal from the temporary work release program. In this petition, Plaintiff contended that the Parole Boards' decision was arbitrary, capricious, and an abuse of discretion.

 Approximately four months later, plaintiff commenced the present action in this Court seeking essentially the same relief for the claimed deprivation of due process. The defendants submitted a supplemental memorandum of law in which they argue that the issues raised by plaintiff either were or could have been litigated in his state court proceeding and that the state court judgment ...


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