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March 5, 1994

DALTON GILL, Plaintiff,
DIANE STELLA, individually and in her official capacity as New York State Parole Officer, Hempstead, New York, and RICHARD OSIKOWICZ, individually and in his official capacity as New York State Senior Parole Officer, Hempstead, New York, Defendants.

The opinion of the court was delivered by: ARTHUR D. SPATT

 SPATT, District Judge:

 The Plaintiff Pro Se brings this action pursuant to 42 U.S.C. § 1983, alleging that his civil rights were violated by the Defendants' revocation of his parole. The Defendants move to dismiss the Complaint pursuant to Fed. R. Civ. P. 12(b)(6), or, in the alternative, for summary judgment pursuant to Fed. R. Civ. P. 56(b) on the grounds that (1) they are shielded from liability by the doctrine of qualified immunity, and (2) the Plaintiff is collaterally estopped from raising his claims in this Court.


 The Plaintiff, Dalton Gill, was sentenced on July 13, 1988 by the County Court, Nassau County, to an indeterminate term of two to six years imprisonment for the crime of criminal sale of a controlled substance (crack) in the third degree. The conviction was affirmed by the Appellate Division, Second Department on June 19, 1989, and application for a certificate granting leave to appeal to the New York Court of Appeals was denied on August 7, 1989. In June, 1990, Gill was released on parole.

 As part of his conditions of parole, Gill agreed, among other things, to truthfully reply to any inquiry by the Parole Office, and not use any controlled substance without proper medical authorization. Gill also agreed, as part of his special conditions of parole, (1) to seek placement in an outpatient drug treatment program, meet all appointments made with respect to the drug program, and not do anything to cause himself to be expelled from the drug program, (2) to go on three job interviews a day, five days per week, and notify the parole office at 9:00 a.m. on any day he was not searching for a job, (3) to keep a log of his employment contacts, and turn the log over to the parole office on a weekly basis, and (4) to observe a curfew.

 According to the defendant Diane Stella, the parole officer responsible for supervising the Plaintiff, Gill told Stella during a scheduled office report on August 13, 1991, that he was working for a company named FALA Direct Marketing, and would be receiving a paycheck in three days. Gill promised to bring in the paycheck stub on his next scheduled visit in September. However, when Gill reported to Stella on September 10, 1991, he stated that he had been fired from the company as a result of discrimination. Subsequently, Stella received a letter from the company confirming that, although Gill had been interviewed for a job, he had never been hired.

 Gill's next scheduled appointment with Stella was for October 8, 1991. On October 7, 1991, and October 8, 1991, Stella states that she received anonymous phone calls from a women who claimed that Gill was unemployed, collecting welfare, and using and selling drugs. When Gill reported to Stella on October 8th, he was questioned about his employment. Gill stated he was working for a Mr. Hunt, a subcontractor of Designer Carpet Installers, and was receiving $ 10 an hour. Gill produced a pay stub indicating $ 640.27 for 30 hours work, or $ 21.33 an hour. Stella noticed other information on the pay stub which contradicted Gill's claim that he received $ 10 per hour. Gill could not explain the discrepancies.

 When asked whether he was on public assistance, Gill stated that he was, even though he was also employed. Stella also took a urine sample from Gill on that day, which was later found to be positive for cocaine. After the urine test, Gill was searched, and found to be in possession of cash, food stamps, welfare cards and a beeper. Gill claimed he needed the beeper for work.

 Stella next called Hunt to ask if he employed Gill. Hunt answered "from time to time." Stella claims that when she asked Hunt whether he had recently paid Gill, Hunt was evasive and offered to call back in an hour after reviewing his records. Immediately after she got off the phone with Hunt, Gill's beeper went off. When activated, the following message was left by Hunt: "Very Important. I just got off a phone call from your parole officer and I need to know what to say to her. I don't want no shit. Call me." Subsequently, a subpoena was served on Hunt to produce Gill's employment records. Hunt failed to comply with the subpoena, and never contacted the parole office.

 Stella played back the two other messages on Gill's beeper. Neither of these messages concerned any work for Hunt. The first message was: "Yo, you said $ 170 but I've got $ 130 call me." The second message was: "Very important that we meet at Smith Street Park." Stella states that Smith Street Park is off limits to parolees because of the incidence of drug dealing. Stella also claims that she was able to discover later that Gill had received 525 messages on the beeper in the first part of October, and 848 messages in September.

 Stella alleges that at the end of Gill's October 8, 1991 visit, she conferred with a senior parole officer on whether to charge Gill with parole violations. Because the urinalysis would not come back on that day, and further questioning of Hunt was warranted, the senior parole officer decided to further investigate the matter, and not charge Gill that day. However, the parole office added as another special condition to Gill's parole that he not carry a beeper. Gill was also ordered to report weekly to the parole office.

 On his visit of October 22, 1991, a urine sample was taken from Gill, which also proved to be positive for cocaine. The parole office also added as another special condition to Gill's parole that he report to the Roosevelt Counselling Center for drug counselling. Stella claims Gill refused to sign a consent to this condition. On his visit of October 29, 1991, Stella confronted Gill with the positive results of his two urinalyses, and stressed that participation in the counselling program was imperative. Subsequently, the Roosevelt Counselling Center informed Stella that, Gill had not been admitted to that program because of frequent lack of attending scheduled appointments.

 Gill failed to meet his scheduled weekly visits of November 5, 1991 and November 12, 1991. On November 8, 1991, the parole office imposed another special condition on Gill: that he seek admission to Topic House, a residential drug treatment program. Gill informed Stella that her assistance was required in order for Gill to be admitted into that program. However, when Stella made an appointment on November 19, 1991 to drive Gill to Topic House, he failed to appear. Stella again conferred with a senior parole officer, the defendant Richard Osikowicz, who this time directed that Stella proceed with a parole violation warrant. According to Osikowicz, his decision to revoke Gill's parole was based on: (1) the positive urine tests for controlled substances, (2) Gill's failure to participate in drug treatment programs, (3) the inaccurate and questionable information Gill provided about employment, and (4) Gill's repeated failure to appear on scheduled report days.

 Gill was arrested when he appeared for his next scheduled visit to the parole office, on November 22, 1991, and was charged with fifteen violations of the conditions of his parole. According to the Defendants, he was searched and arrested without any physical incident. A beeper, date book, and car keys were taken from Mr. Gill. Stella notified the Nassau County Police Department that Gill's car was parked in front of the parole office, and that he was incarcerated. Stella claims that Gill executed a power of attorney to Janine Gray, and as a result, all of his property was released to her on December 17, 1991.

 Among the fifteen charges for parole violation were allegations that Gill lied about his employment (charge 1); lied about the need for a beeper (charge 2); failed to appear at required office reports (charge 7); presented false documents about his employment (charge 12); used and possessed a controlled substance (charge 13); and failed to attend a drug program (charge 15).

 Gill's preliminary parole revocation hearing was held on December 3, 1991. Stella was not present at that hearing, because she was on vacation. The defendant Osikowicz appeared on behalf of the Parole Office. At the conclusion of the hearing, the hearing officer found probable cause to believe Gill had violated the conditions of his parole. Subsequent to that hearing, Gill filed a petition for a Writ of Habeas Corpus in the Supreme Court of New York, Nassau County. Justice George A. Murphy denied the petition on January 24, 1992, finding that Gill had not been unlawfully detained under an unlawful commitment. See People ex rel Gill v. Russi, Trial Term Part II (Sup. Ct. Nassau Cty., 1992).

 The final parole revocation hearing was held on February 27, 1991, March 2, 1991 and March 5, 1992. At that hearing, Gill testified that he failed to make the November 19, 1991 appointment at the parole office, because he had taken Janine Gray to St. Mary's hospital in Brooklyn in order to have her treated for a miscarriage. Ms. Gray also testified that Gill had taken her to the hospital on November 19, 1991, in order for her to be treated for a miscarriage, and produced a hand-written letter on the hospital letterhead stating she had been seen and treated for a miscarriage on that date. However, Stella contacted the hospital and received a letter from it on March 12, 1992 stating that the hospital had no record of ever treating Janine Gray on that day.

 On March 18, 1992, the administrative law judge presiding over the revocation hearing sustained charges 1, 2, 12, 13 and 15, and imposed a sentence of twenty-three months imprisonment. The ALJ found that Gill had lied about his employment and use of the beeper, and that Gill had used cocaine, a controlled substance. Moreover, the ALJ found that Gill made no real effort to participate in a drug program, and that the letter from St. Mary's Hospital, offered to corroborate the excuse that Gill missed his November 19, 1991 appointment because he took Janine Gray to the hospital for treatment, appeared to be spurious and not a genuine record.

 Gill appealed the ALJ's determination to the Board of Parole Appeals Unit, which affirmed the ALJ's determination in December, 1992. Gill then brought another habeas corpus proceeding in the New York State Supreme Court, Nassau County, by initiating an Article 78 proceeding to annul the final parole revocation hearing decision. In his petition, Gill claimed that (1) his due process rights were violated when his request to call his mother as a witness was denied, (2) the Parole Board did not sustain its burden of proof, (3) the Parole Board failed to give him a final revocation hearing within ninety days of the probable cause determination, as required by New York state law, (4) evidence against him was improperly admitted, (5) the imposition of a twenty-three month sentence was excessive.

 On May 26, 1993, Gill's writ of habeas corpus was denied, and the petition dismissed. People ex rel Gill v. Russi, Trial Term Part 24 (Sup. Ct. Nassau Cty., 1993). In a decision by Justice Goodman, the court found that the testimony of Gill's mother would have been limited to an issue pertaining to one of the violation charges which was dismissed, and thus no prejudice resulted to Gill by not letting his mother testify. The court also found that the state met its burden of proving each of the sustained charges by a preponderance of the evidence, and that because a parole revocation hearing had the attributes of an administrative hearing, the hearing officer need not follow the strict rules of evidence normally followed in a criminal trial.

 As to the timeliness of the final hearing, the court held that the hearing was initiated within the ninety day period required by New York Executive Law § 259-i (3)(f)(i), and was reasonably adjourned for several days beyond that period at the request of Gill's attorney. Moreover, the court determined that a final hearing need not be completed within the ninety day period required by the state law; it was sufficient that the final hearing be initiated within that time. ...

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