In the context of Banks' Article 78 proceeding, the court noted
that the ALJ found that Banks "acted in a dangerous manner" and
that his behavior violated the term of his parole that prohibited
behavior threatening to the safety and well-being of others.
Affirming the revocation of parole, the state court held that the
testimony of the parole officers was sufficient to support the
parole board determination that Banks violated the aforementioned
condition of his parole.
In view of the foregoing, it is clear that the issue of Banks'
conduct just prior to the scuffle at the Queens Office was the
issue litigated in Banks' parole revocation litigation. That
issue is the precise issue for that defendants seek to bar Banks
from re-litigating. Accordingly, the court holds that there is an
identity of issues between the issue for which preclusive effect
is sought and the issue decided in the state court proceeding.
Having found that there is an identity of issues between an issue
litigated at the parole revocation hearings and the issue for
which preclusion is sought, the next question is whether the
finding on the issue was necessary to the prior judgment.
B. Necessary To The Proceedings
The basis of the parole violation charge was that Banks
endangered himself and others by resisting his parole officers'
attempts to detain him at the Queens Office on May 20, 1992.
Given the nature of the charge, a finding that Banks had acted
dangerously on May 20, 1992 was clearly necessary to the ultimate
determination that Banks violated a term of his parole. Had the
ALJ found otherwise, the parole violation could not have been
sustained. Accordingly, the court finds that factual findings
concerning Banks' conduct at the Queens Office on May 20, 1992
were necessary to the judgment sustaining Banks' parole
revocation. The final issue to be decided in determining whether
Banks should be precluded from re-litigating the issue of his
conduct prior to the Queens Office scuffle is whether Banks had a
full and fair opportunity to litigate this issue in the prior
C. Full And Fair Opportunity To Litigate
The New York Court of Appeals has set forth the factors to
consider when determining whether there has been a full and fair
opportunity to litigate an issue. Specifically, the court should
consider, the nature of the forum and the importance of the claim
in the prior litigation. The court also considers the incentive
to litigate, the competence of counsel, the availability of new
evidence and any differences in the applicable law and the
foreseeability of future litigation. See Ryan v. New York Tel.
Co., 62 N.Y.2d 494, 500, 478 N.Y.S.2d 823, 467 N.E.2d 487
The prior forum here was a parole revocation hearing. As
indicated, this hearing consisted of a three step process. The
preliminary hearing, the final hearing and appeal to the New York
State Supreme Court by way of a proceeding brought pursuant to
Article 78 of the CPLR. Banks attended both the preliminary and
final parole revocation hearings. The preliminary hearing was
before an hearing officer and was held to determine if there was
probable cause to believe that Banks had violated the terms of
his parole. The final parole revocation hearing was held before
and ALJ. At each hearing Banks testified and was represented by
counsel who had the opportunity to call and cross-examine
The burden of proof at parole revocation hearings is the same
burden of proof applicable in this civil case. Thus, in the
context of a parole violation, the parole
authorities have the burden of proving misconduct by a
preponderance of the evidence. People v. New York State Division
of Parole, 168 Misc.2d 937, 646 N.Y.S.2d 611, 613 (1996), app.
dismissed, 251 A.D.2d 43, 672 N.Y.S.2d 722 (1st Dep't 1998).
Based on the foregoing, the court holds that the nature of the
parole revocation proceedings, including the availability of
counsel, witnesses, and a hearing before an ALJ, militates in
favor of giving the prior factual finding preclusive effect.
With respect to the question of Banks' incentive to litigate in
the first forum, the court notes that Banks' incentive to
vigorously litigate the propriety of his parole revocation was
high. If the violation was sustained, Banks' liberty was at
stake. Despite the fact that Banks was subsequently sentenced to
a further term of imprisonment. Banks certainly had a great
incentive to litigate the issue of his parole violation
Other factors militating in favor of a finding that Banks had a
full and fair opportunity to litigate his parole revocation are
the availability of competent counsel (who was familiar with the
case and represented Banks at both his preliminary and final
hearings) and witnesses at the prior hearing. Indeed, the
witnesses who would be called to testify at his civil rights case
are precisely the same individuals who testified and were
cross-examined at Banks' parole revocation hearings.
Based upon the foregoing, the court holds that Banks had a full
and fair opportunity to litigate the issue of his conduct at the
Queens Office on May 20, 1992 in the context of his parole
revocation hearings. Accordingly, the court holds that collateral
estoppel must be applied to the facts found therein. This holding
is in accord with previously cited cases holding that facts found
in connection with a New York State Article 78 proceeding may be
given collateral estoppel effect. E.g., Collard, 759 F.2d at
206-07; Genova, 776 F.2d at 1561; Trammell v. Coombe, 1997 WL
525478 at *6 (S.D.N.Y. August 21, 1997).
VI. Excessive Force And Objective Reasonableness
Having found that Banks cannot re-litigate the factual issue of
his conduct at the Queens Office on May 20, 1992, the court turns
to consider the claim of qualified immunity under these
established facts. As noted, the state court specifically found
that Banks acted "dangerously" and "violently" when his parole
officers attempted to detain him for questioning on May 20, 1992.
The question then, is whether the conduct of the parole officers
was "objectively reasonable" to restrain Banks who was acting in
a dangerous and violent manner.
As noted above, the conduct alleged to have amounted to
excessive force consisted of a scuffle that all parties agree
lasted no more than three or four minutes. At worst, Banks was
wrestled to the ground and one of the parole officers placed his
knee in Banks' chest while leg shackles were applied. Banks
complained of no injury at the time of the altercation and never
sought any medical attention. Given the fact that Banks'
dangerous and violent behavior precipitated the scuffle, the
court holds, as a matter of law, that reasonable officers could
certainly differ as to the propriety of the parole officers'
actions in subduing Banks. Certainly, there are reasonable
officers who would agree that the officers here acted properly
and did not exercise force so excessive as to violate the United
Because reasonable officers would clearly have acted similarly
to the defendants herein, the court holds that the conduct of
defendants was objectively reasonable under the circumstances and
the officers are therefore entitled to qualified immunity.
Accordingly, the court grants defendants Chapman and Rivera
summary judgment on the claim of qualified immunity.
For the reasons stated herein, the New York State Division of
Parole is granted
summary judgment on Eleventh Amendment grounds. Defendants Person
and Lauture are granted summary judgment on the ground that they
had no personal involvement in the alleged deprivation of
constitutional rights. These defendants, along with defendants
Chapman and Rivera are also granted summary judgment on the
ground of qualified immunity. All defense motions for summary
judgment are granted. The Clerk of the Court is directed to close
the file in this case.