The opinion of the court was delivered by: Wexler, District Judge.
Plaintiff Eugene Jon Banks ("plaintiff" or "Banks") commenced
this action pursuant to 42 U.S.C. § 1983 alleging the use of
excessive force in connection with his detention by several
parole officers in May of 1992.*fn1 Presently before the court
are defendants' motions for summary judgment. Defendants seek
summary judgment as to all claims brought against the New York
State Division of Parole on the ground that such claims are
barred by the Eleventh Amendment to the United States
Constitution. Summary judgment is sought with respect to
defendants Person and Lauture on the ground that these defendants
had no personal involvement in the alleged deprivation of
plaintiff's constitutional rights. Finally, summary judgment is
sought as to all defendants on the ground that no question of
fact exists concerning the objective reasonableness of the parole
officers' conduct and the defendants are therefore entitled to
judgment on the ground of qualified immunity. For the reasons set
forth below, the motions for summary judgment are granted in all
I. The Events of May 1992
Plaintiff's claim arises out of events that transpired on May
20, 1992, when he reported for his monthly visit to his parole
officer in the Queens area office of the New York State Division
of Parole (the "Queens Office"). The undisputed facts, as gleaned
from state court records, testimony at plaintiffs parole
revocation hearing and plaintiff's deposition are as follows.
According to Banks, upon being told of the reason he was being
held, he rose and told Lauture to get a message to Banks' wife
who was waiting in the reception area. Banks admits to no conduct
that should have provoked the exercise of any force by either
Lauture or any other parole officer that subsequently entered the
It is Banks' testimony, as developed at his parole revocation
hearing as well as at his deposition herein, that the parole
officers approached Banks, and without provocation, pushed him
and wrestled him to the floor. PO Chapman allegedly put his knee
to Banks' chest and kept Banks down in this manner until his legs
could be shackled. By Banks' own testimony, this "tussle," or
"scuffle," lasted no more than three or four minutes. All use of
force ended once Banks was shackled. Banks also testified clearly
at this deposition that neither PO Lauture nor PO Person ever
touched him during the altercation with the other parole
officers. The only time that Lauture ever touched Banks was
during his initial handcuffing. PO Person, Lauture's supervisor,
was not in the room during the incident.
PO Chapman testified at Banks' preliminary parole revocation
hearing. PO Chapman testified that when he entered the room Banks
had not only risen from his chair, but was quite agitated, was
banging his head against the wall, and told Chapman that if he
wanted to get Banks he would "have to do him." Chapman testified
that he, along with Banks and other parole officers fell to the
floor and struggled until Banks was subdued.
Lauture, who testified at Banks' final parole revocation
hearing, stated that immediately upon learning that he was being
held for questioning, Banks not only got up from his chair, but
became agitated and began kicking and jumping. According to
Lauture, Banks told her he would have to be shot before he would
go to Nassau County. Lauture further testified that after Banks
got up from his chair and began kicking and jumping, PO Chapman,
Lauture's partner and office mate, entered the room along with PO
Rivera and other parole officers.
PO Rivera also testified at Banks' final revocation hearing.
Rivera said that he was standing by the door to Lauture's office
when he was charged by Banks. Rivera put his hands up to shield
himself against Banks. Rivera stated that his thumb was injured
when Banks ran against Rivera's hands. Rivera testified that it
took four or five parole officers to subdue Banks and place him
in leg irons.
II. The Parole Revocation Hearings
On June 2, 1992, a preliminary hearing before a hearing officer
was held in connection with the revocation of Banks' parole. The
facts forming the basis for the revocation of Banks' parole are
the same facts surrounding the civil rights claim before this
court. Specifically, Banks' parole was sought to be revoked on
the charge that he failed to follow instructions and posed a
danger to himself and others. This charge, like the claim before
this court, arose out of the altercation that took place at the
Queens Office on May 20, 1992.
In a decision dated June 2, 1992, the hearing officer found
that probable cause existed to believe that Banks' conduct on May
20, 1992, violated the terms of his release. The hearing officer
based his finding of probable cause on the "credible testimony"
of PO Chapman.
Banks' final parole revocation hearing was held on August 24,
1992. Banks, PO Lauture and PO Rivera testified at this hearing,
which was held before an Administrative Law Judge ("ALJ"). In his
decision, the ALJ sustained the parole violation with which Banks
was charged. The ALJ specifically noted that Banks had reacted
violently to the parole officers' attempts to detain him for
police questioning. The ALJ further stated that "given [Banks']
violent response" to his parole officers' actions, the parole
violation should be sustained and assessed Banks for twenty-four
months of delinquent time. The decision of the ALJ was
subsequently affirmed on administrative appeal.
III. State Court Review of the Parole Revocation Decision
In December of 1992, Banks commenced a proceeding, pursuant to
Article 78 of New York's Civil Practice Law and Rules ("CPLR"),
to review the final determination of the parole board. Banks'
Article 78 petition alleged that Banks was deprived of due
process of law, was illegally arrested and "kidnapped by a
conspiracy." In a decision dated January 26, 1994, a Justice of
the Supreme Court of the State of New York dismissed Banks'
Article 78 petition. The state court noted the ALJ's finding that
Banks had engaged in behavior threatening to the safety and
well-being of others in violation of the terms of his parole. The
court held that there was sufficient evidence to substantiate the
finding of the ALJ that Banks' violent conduct toward his parole
officers warranted a revocation of his parole. In an opinion
dated May 31, 1994, the State Court Justice who denied Banks'
Article 78 petition denied Banks' application to reargue the
January 26, 1994 decision.
I. The Motions For Summary ...