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BANKS v. PERSON

May 7, 1999

EUGENE J. BANKS, PLAINTIFF,
v.
GUSTAV PERSON, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Wexler, District Judge.

  MEMORANDUM AND ORDER

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 respects.

BACKGROUND

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.

In May of 1992, plaintiff was on parole in connection with prior robbery convictions. On May 20, 1992, Banks reported to the Queens Office, accompanied by his wife, and asked for his parole officer, defendant Lauture. When Lauture came to the reception area to retrieve Banks. Lauture told Banks' wife to remain in the reception area and escorted Banks to Lauture's office. Upon their arrival in Lauture's office, Banks was immediately handcuffed and told to be seated. Parole Officer ("PO") Lauture informed Banks that he was wanted for questioning in connection with a crime in Nassau County and that she would be holding him for the Nassau County police.*fn2 It is in the recounting of the events that immediately followed Banks' initial handcuffing that the parties' versions of the events, as presented to this court, begin to vary.

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 room.

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.

Several hours after the incident, Banks was transferred to the Third Precinct of the Nassau County Police Department, located in Williston Park, New York. At that time a form detailing Banks' physical condition was prepared by a police officer who interviewed Banks. The form was reviewed and signed by Banks. This form, known as a "Physical Condition of Defendant Questionnaire" (a "PDCN 79"), was completed for Banks at approximately 5:30 P.M. on May 20, 1992. In response to the question "Have you any injuries?" the PDCN 79 notes Banks' response as "No." In response to a question concerning drug use. Banks stated that he used heroin and needed a doctor for methadone medication. The bottom line of the PDCN 79, signed by Banks, states, "I have read the above questions and answers and I certify that the answers are mine and that they are true." The officer preparing the report noted in the "comments" section of the PDCN 79 that the "defendant appears to be in good health. He has drug habit and requests treatment."

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.

DISCUSSION

I. The Motions For Summary ...


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