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GORDON v. WATLEY

January 10, 1986

EDDIE LEE GORDON, Plaintiff,
v.
OFFICER WATLEY, OFFICER WITSELL, THOMAS COUGHLIN, III, SUPERINTENDENT HAROLD J. SMITH, SUPERINTENDENT WILSON E. J. WALTERS, COUNTY OF NASSAU and JOHN and/or JANE DOES NOS. 1-20, Defendants



The opinion of the court was delivered by: LASKER

LASKER, D.J.

Eddie Lee Gordon sues pursuant to 42 U.S.C. § 1983 (1982) claiming violation of his rights under the fourth, eighth and fourteenth amendments of the United States Constitution, and pursuant to the common law of New York alleging wrongful arrest, seizure, transportation and imprisonment by Charles Watley, Nathaniel Witsell and Nassau County ("the Nassau defendants"), by Thomas Coughlin III, Harold J. Smith, and Wilson E. J. Walters ("the state defendants") and by John and/or Jane Does Nos. 1-20.

The facts giving rise to this action are set out at 601 F. Supp. 1512 (S.D.N.Y. 1985). In 1981 Gordon was in Georgia serving concurrent New York and Georgia sentences. The Georgia sentence was a ten-year sentence which required Gordon to serve a maximum of four years in prison and the balance on probation. The New York sentence was an indeterminate sentence with a maximum of five years, to run concurrently with the Georgia sentence. On March 6, 1981, the day Gordon was paroled in Georgia pursuant to the Georgia sentence (under which he had served two years), Watley and Witsell, in their capacities as Nassau County correctional officers, arrested Gordon and transported him to New York. The Nassau defendants acted according to a commitment order that Nassau County had filed with Georgia prison officials as a detainer to ensure that New York would be notified if Gordon were released prior to completing the minimum period of imprisonment on the New York sentence.

 Once in New York State, Gordon was incarcerated for approximately eight months pursuant to the New York commitment order, which stated on its face that he had received an indeterminate sentence of "none" to five years to run concurrently with the Georgia sentence. Gordon met with the New York Parole Board on May 12, 1981, and again on August 5, 1981, at which time he was granted parole effective on or after October 14, 1981. He was released .on October 26, 1981 because he had reached his conditional release date.

 After Gordon filed this action, the state defendants moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a legally sufficient claim. The motion was treated as a motion for summary judgment and was denied without prejudice to renewal on an amplified record because significant issues of fact were unresolved, including: the intention of the sentencing judge as to the minimum sentence imposed, the facial validity of the commitment order, and whether the defendants "should have known that the [commitment] order on its face barred imprisonment in New York." Gordon v. Watley, 601 F. Supp. 1512, 1516 (S.D.N.Y. 1985). *fn1" The Nassau defendants moved for summary judgment on the ground that they acted in good faith. This motion was also denied without prejudice to renewal on a sufficient record. Id. at 1517.

 Three motions are now before the court: 1) the state defendants' motion to reargue the summary judgment motion; *fn2" 2) Gordon's motion for partial summary judgment against all defendants on the issue of liability; and 3) the Nassau defendants' cross-motion for summary judgment.

 Gordon moves for partial summary judgment against all defendants on the issue of liability. He contends that the basic facts surrounding his seizure, arrest, transportation and imprisonment are uncontested, and that his seizure, arrest and imprisonment were unlawful under the sentencing statutes and case law in effect at the time, and that the defendants had a duty to determine that the commitment order they followed was invalid.

 The state defendants oppose Gordon's motion and argue that they are entitled to summary judgment on the grounds that Gordon has failed to demonstrate 1) that a material issue of fact exists regarding Gordon's minimum sentence, and 2) that the state defendants were precluded from imprisoning Gordon based on the commitment order. Their submissions in opposition to Gordon's motion for partial summary judgment are considered a cross-motion for summary judgment. *fn3"

 The Nassau defendants cross-move for summary judgment on the grounds that 1) Gordon was properly arrested, transported and imprisoned in New York; 2) there is no Section 1983 violation because the commitment order is valid on its face and there is no obligation to go beyond the plain language of a facially valid order; and 3) assuming, arguendo, that a Section 1983 violation is found, Watley and Witsell are not liable because they acted in good faith.

 The parties agree that a New York sentence may be served in a correctional facility outside New York State when the New York court orders the sentence to run concurrently with a sentence previously imposed by a sister jurisdiction. See N.Y. Penal Law §§ 70.25(4), 70.20(3), 70.30 (2-a) (McKinney Supp. 1984); *fn4" Hechtman, Supplemtary Practice Commentaries 1975 to N.Y. Penal Law § 70.20 (McKinney Supp. 1984) at 226. *fn5"

 Gordon contends that § 70.30 (1) (a), *fn6" as construed in People v. Thompson, 87 Misc. 2d 302, 384 N.Y.S.2d 974 (Sup. Ct., Erie County 1976), governs the calculation of his sentence. In Thompson the defendant was serving a fifteen-year sentence in Virginia when he received a 0-4 sentence in New York to run concurrently with the Virginia sentence. When the Virginia authorities granted Thompson parole, the New York authorities sought to have him returned to New York. Thompson sought a declaratory judgment that the grant of parole by Virginia authorities was binding upon the New York authorities. In granting Thompson's declaratory judgment motion based on its construction of Section 70.30(1)(a), the court stated:

 Once the minimum period of imprisonment had been satisfied under New York law, where, by law, the shorter sentence merges in the longer one, parole should be left to the applicable rules of the correction board of the state where said longer term is being served. The defendant having been committed to the Virginia facility to serve his time, the New York Department of Correction should have no superior control over his parole.

 If the Virginia Parole Board has determined that despite the additional concurrent sentence there is a reasonable probability that the defendant can live at liberty without violating the law, the New York Department of Correction should have no greater interest.

 Id. at 306, 384 N.Y.S.2d at 977-978 (emphasis added). Gordon argues that Thompson governs here. He maintains that his shorter New York term merged into his longer Georgia term and that his New York sentence was satisfied when the Georgia sentence in its entirety was discharged in Georgia. (Memorandum of Plaintiff in Support of Motion for Partial Summary Judgment at 8-9.) Gordon interprets Thompson to mean that New York must in this case be considered to have relinquished any jurisdiction it had over Gordon once it sent him back to Georgia to serve out the longer of his concurrent sentences and, that as a result, New York lacked jurisdiction to determine whether Gordon's sentence should be completed in prison, on probation or on parole. (Id. at 9.) It ...


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