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January 15, 1993

CHARLENE GELATT, Individually and as Parent and Natural Guardian of MORGAN GELATT, an Infant, Plaintiffs,
THE COUNTY OF BROOME, NEW YORK, THE BROOME COUNTY PROBATION DEPARTMENT, NEW YORK, RICHARD A. WAHILA, Individually and in his official capacity as Probation Officer, "JOHN DOE" and "JANE DOE", Individually and in their official capacities as Probation Officers of Broome County whose identities are presently unknown to the Plaintiffs, Defendants.

Scullin, Jr.

The opinion of the court was delivered by: FREDERICK J. SCULLIN, JR.

Frederick J. Scullin, Jr., D.J.:

Memorandum-Decision and Order


 Before this court is a motion by the defendants *fn1" for summary judgment. Their sole ground for seeking this relief is that the defendant Wahila is absolutely immune from a suit such as this.

 The parties have submitted on their papers, electing not to provide oral argument on the issue here presented.

 During deliberations on this motion, it became clear that resolution of the issues presented could have an impact on the conduct, policies and procedures of probation officers throughout New York State. Thus, it was the decision of this court to solicit the New York State Division of Probation and Correctional Alternatives as amicus curiae. *fn2" That agency was contacted and agreed to participate through the offices of the Solicitor General and the Attorney General of the State of New York. The amicus memorandum was filed with the court on December 4, 1992. In this memorandum, the amicus asserts that the complaint should be dismissed on the ground of absolute immunity or in the alternative, on the ground of qualified immunity.

 Factual Background

 The plaintiff mother, Charlene Gelatt [hereinafter referred to as "plaintiff"], was sentenced on April 8, 1988, by the Honorable Patrick D. Monserrate, then Broome County Court Judge, to five years probation on her plea of guilty to the charge of Grand Larceny in the Third Degree. As a condition of her probation, the plaintiff was required to pay restitution in the total amount of $ 11,508.55 plus a five percent surcharge (amounting to an additional $ 575.42), payable in monthly installments of $ 200.

 Shortly after her sentencing and pursuant to the plaintiff's request, her probation supervision was transferred to Florida pursuant to the Interstate Compact. See N.Y. Exec. Law § 259-m (McKinney 1982). She was advised of the transfer by letter dated April 18, 1988. That letter also advised the plaintiff that she was to remit her restitution payments directly to the Broome County Probation Department.

 In December of 1988, defendant Robert Wahila, a Probation Officer with the Broome County Probation Department since 1973, took over the plaintiff's file. Officer Wahila in familiarizing himself with the plaintiff's file, found that the file contained copies of letters dated November 1, 1988 to the plaintiff in Florida and to her supervising probation officer in Florida, Rosa Greene, from the previous probation officer assigned to the file. Both the letter to the plaintiff and the letter to Officer Greene advised that the plaintiff had failed to make restitution payments and warned that a violation of probation would be filed if there was no payment made by November 30, 1988. The letter to Florida Probation Officer Greene also requested a status report on the plaintiff. There was no response to either letter in the file and no restitution payments were forthcoming.

 On January 12, 1989, Officer Wahila wrote to the plaintiff threatening her with a violation of probation if restitution was not made. This letter was returned by the post office as undeliverable.

 On February 2, 1988, Officer Wahila submitted his violation of probation report to Judge Monserrate. In his report, officer Wahila wrote that "this writer" (referring to himself) had sent the above-described letters (referring both to the November 1, 1988 letters written by the previous probation officer, and the January 12, 1989 letter he had written) and that the plaintiff was in violation of the terms and conditions of her probation in that: 1) she had absconded from supervision; and 2) she had failed to make restitution. He requested that the court sign the Violation of Probation, issue a Declaration of Delinquency and issue an arrest warrant. The court, apparently relying on Officer Wahila's representations, complied with his requests and signed the Violation of Probation/Declaration of Delinquency and issued an arrest warrant.

 The plaintiff was arrested on March 16, 1989, in Florida. She was held in the Pinellas County (Florida) Jail for 14 days prior to being extradited to New York. It took six days to transport her to Binghamton, during which time she was housed in various jails and prisons. On April 16, 1989, the plaintiff was brought before Judge Monserrate, who by then had spoken personally to the Florida Probation Officer, Rosa Greene. Officer Greene had advised that she had been monitoring the plaintiff since her transfer to Florida and had been aware of the plaintiff's change in residence and of her failure to pay restitution. As is reflected in the transcript of the April 16, 1989 court appearance, Officer Greene had explained to the judge that the plaintiff had been terminated from her job after complying with Officer Greene's directive that she inform her employer that she was on probation. As such, Judge Monserrate, after a lengthy on-the-record apology, dismissed the Violation of Probation and released the plaintiff. Thereafter, the plaintiffs initiated this law suit.

 The plaintiffs bring their complaint pursuant to section 1983 of the Civil Rights Act. The plaintiffs allege simple and gross negligence, recklessness, malice and intentional conduct on the part of Officer Wahila and on the part of the Broome County Probation Department in failing to train and supervise Officer Wahila. Specifically, the causes of action alleged in the complaint are:

1) on behalf of Charlene Gelatt, seeking $ 5 million, for the violation of her constitutional rights to be free from:
a) the intentional infliction of emotional distress;
b) interference with her constitutionally protected family relationships;
c) the negligent performance of probation duties by her probation officer;
d) illegal arrest and imprisonment;
e) summary punishment without a trial;
f) the denial of due process rights;
g) the use of excessive force; and
h) unlawful seizure of her person; and
2) on behalf of Morgan Gelatt, Charlene Gelatt's six year old daughter, for $ 500,000, due to the deprivation of love, care, support, companionship and parenthood of her mother, thus causing emotional and mental distress.

 In addition, the plaintiffs seek reasonable attorneys' fees and the costs incurred in litigating this action pursuant to 42 U.S.C. § 1988.

 The defendants, in their answer to the complaint, interpose the following defenses:

1) failure to state a claim;
2) failure to join necessary ...

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