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MARTORELL v. MCELWEE

July 2, 1992

JOAQUINE MARTORELL #87A8465 Plaintiff,
v.
JAMES McELWEE, Senior Parole Officer; JAMES WHITE, Parole Officer; WILLIAM GOGGINS, Parole Officer; ANTHONY K. UMINA, Commissioner N.Y.S. Parole Board; EUGENE S. CALLENDER, Commissioner, N.Y.S. Parole Board; RODRIGUEZ RIVERA, Chairman, N.Y.S. Parole Board Defendants.


HAIGHT, JR.


The opinion of the court was delivered by: CHARLES S. HAIGHT, JR.

HAIGHT, District Judge:

 Plaintiff, a New York State prisoner, filed this pro se civil rights action under 42 U.S.C. § 1983 against defendants who are involved in the state parole system. Plaintiff contends that his parole hearing was constitutionally flawed. He requests immediate release on parole and compensatory damages.

 Defendants McElwee, White, Goggins, and Umina now move under Rule 12(b)(6), Fed. R. Civ. P., to dismiss the complaint for failure to state a claim upon which relief can be granted. *fn1" Unaccountably, the moving defendants do not question the Court's subject matter jurisdiction. The Court addresses this issue sua sponte.

 Background

 Plaintiff Joaquine Martorell is an inmate at the Mid-Orange Correction Facility in Westchester County, New York. He is serving an indeterminate sentence of four years to life for Criminal Sale of a Controlled Substance in the second degree, involving five kilos of cocaine. After serving nearly four years, plaintiff had a hearing before the New York State Parole Board ("The Board"). Presiding over the Board were Commissioners Anthony K. Umina and Eugene S. Callender. Also present at the hearing were Senior Parole Officer James McElwee, Parole Officers James White and William Goggins, and Parole Program Aide Ruth Miller.

 After interviewing plaintiff, Commissioners Umina and Callender denied him parole. Hearing transcripts and the Board's Release Decision Notice indicate that plaintiff was not released because the seriousness of the instant offense, and his involvement in "serious institutional behavior including continued use of controlled substance." (Pl. Ex. F). The Board concluded that early release was incompatible with the welfare of society, and that there was a reasonable probability that plaintiff would break the law if released.

 Plaintiff alleges several violations of his rights:

 (1) He was not able to adequately understand or respond to the Commissioners' questions because his command of the English language is limited. The Parole Officers present at the proceeding were aware of this fact and should have provided him with an interpreter.

 (2) Statements made by Commissioner Umina indicate a racist attitude toward Hispanics.

 (3) There is no factual basis for the Board's conclusion that he "continued" to involve himself with controlled substances. There was a second incident involving controlled substances, for which plaintiff received a Tier III punishment. However, the Tier III was reduced to a lesser punishment when prison authorities learned that he was using a prescription medication. As there was no "continued" use of controlled substances, the Board based its decision on inaccurate information.

 (4) Other inmates charged with the same crime were granted parole.

 Plaintiff's complaint demands the following relief:

 To have a trial in this matter, in order to determine why the Plaintiff's minimum was extended by the within Defendant's by a period of twenty-four months and to be released immediately to parole if there is a finding of the Defendants' to be guilty of these allegations, and to have them pay me (the Plaintiff) $ 250,000 dollars for their wrongful doing in this matter. And to have them, the Defendants' showcause ...


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