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ROMER v. MORGENTHAU
September 26, 2000
STEVEN J. ROMER, PLAINTIFF,
ROBERT M. MORGENTHAU, ROSLYNN R. MAUSKOPF, GLENN S. GOORD, JAMES F. RECORE AND JAMES B. FLATEAU, DEFENDANTS.
The opinion of the court was delivered by: Marrero, District Judge.
Plaintiff Steven J. Romer ("Romer") brings this action pursuant
to 42 U.S.C. § 1983, seeking to redress alleged violations of his
civil rights under the Due Process Clause of the Fourteenth
Amendment of the United States Constitution. Defendants are New
York County District Attorney Robert M. Morgenthau and former
Assistant District Attorney Roslynn R. Mauskopf (together, the
"DA Defendants"), and Glenn S. Goord, Commissioner, James F.
Recore, Director of Temporary Release Programs, and James B.
Flateau, Director of Public Information, of the New York State
Department of Correctional
Services ("DOCS") (together, the "DOCS Defendants"). Romer pleads
four claims: deprivation of a liberty interest through the denial
of temporary work release; unjustified publication of his crime;
a conspiracy among defendants to violate his constitutional
rights; and intentional infliction of emotional distress.
Defendants move under Fed.R.Civ.P. 12(b)(6) to dismiss the
complaint for failure to state a claim on which relief can be
granted. The Court grants the motion.
Romer, appearing pro se, was convicted in 1991 of grand
larceny and sentenced to a prison term of seven and one half to
twenty-two and one half years. He is currently incarcerated in
the custody of DOCS at the Tappan Correctional Facility in
Ossining, New York. Romer alleges that DA Morgenthau has held a
long-standing grudge against him dating back to an incident in
1984 when Romer, then a practicing attorney, reported a case of
jury tampering. Compl. ¶ 18; Ex. A. Romer attributes this grudge
to Mauskopf, as well, on account of her former affiliation with
the District Attorney's Office and her role as prosecutor at
Romer's trial on the grand larceny charge. Id. Romer alleges
that although Mauskopf repeatedly emphasized at trial that all of
Romer's laundered money was lost to his failed business ventures,
id. ¶ 52-53, she subsequently, at DA Morgenthau's "behest,"
several times knowingly reported information that Romer had
hidden some of the stolen money. Id. ¶ 63; Ex. B. Romer claims
Mauskopf was the primary source of false information contained in
a presentencing report prepared by the DA's Office in connection
with Romer's sentencing. Id. ¶ 31. Romer charges that DOCS
Defendants, "urged and influenced" by DA Defendants, both
"directly and indirectly" engaged in discriminatory, illegal
behavior in making decisions about Romer's privileges. Id. ¶
31. Specifically he claims that DA Defendants' conduct in
composing their presentencing report prompted DOCS Defendants'
alleged acts of discrimination against Romer, such as denial of
work release and unjustifiable publication of information about
his conviction. Id.
1. Deception and Work Release Denial Claim
As background and support for his claim that the defendants
violated his constitutional rights in denying his temporary work
release program, Romer alleges five forms of "deception" by the
defendants. First, Romer contends that he was classified as a
"Central Monitoring Case" ("CMC"), a designation primarily
reserved for serious, organized crime offenders, and that, in
violation of DOCS own policies, he was not notified of this
classification until two years and eight months later. Id. ¶ 32
(citing 7 N.Y.C.R.R. § 1000.4(4), DOCS Directive 0701 §
IV-(B)(1)(c)). The CMC designation carried the effect that
Romer's applications for work release required approval by the
DOCS Central Office rather than being determined solely by the
Temporary Work Release Committee ("TRC") at the prison where he
Romer also asserts that, despite his conviction of a white
collar crime, he was imprisoned with the most violent criminals
and that he was denied the routine reclassification to medium
security status and transfer to a lower security facility
provided to inmates with fewer than five years of their minimum
sentence remaining. Id. at ¶¶ 33, 34. Romer alleges that he
filed seven transfer applications over a span of three years when
he had only two to five years of his minimum sentence remaining
before he was finally transferred from maximum security to a
medium security facility. Id. These actions, he claims, were
part of the same pattern and animus that he alleges were behind
four occasions where his work release applications were denied
despite his eligibility and recommendations from high-ranking
officials for each application. Id. ¶ 38. Romer attributes
these denials to false information supplied to DOCS officials by
DA Defendants, Mauskopf in particular. He also claims that Recore
orchestrated the denials "directly and indirectly, at the behest
of [DA] defendants . . . with the knowledge, consent and
agreement of [DOCS] defendant Goord." Id. ¶¶ 36, 41-42, 77.
Concerning the work release denials, Romer asserts that on
August 20, 1996 he achieved the highest score on the
"temporary-release point system" and was approved for work
release by the TRC. Id. ¶ 35. Upon review by the DOCS Central
Office, Romer's work release application was denied. The
rejection was affirmed on appeal by Recore despite Romer's
existing job opportunity and recommendations from over 90
sources, including numerous prominent public officials. Id. ¶¶
36-37. Romer submitted a second application after September 1997,
as allowed in the first disapproval. Recore again denied the
application on appeal at the Central Office, advising Romer not
to re-apply until after his parole hearing. Id. ¶¶ 41-42. Romer
was later denied parole despite an alleged model record and
despite having served three to six times the sentencing
guidelines established by the New York State Division of Parole.
Id. ¶¶ 45, 46.
Following Romer's third work release application, his wife
allegedly received a letter (not in the record) from a State
Assemblywoman explaining that DOCS had informed her, referring to
Romer's application, that "work release is not a possibility in a
case where there is such a large amount of money for which there
has been no accounting." Id. ¶ 48. Romer responded, sending
copies of his correspondence to Goord and Recore, that Mauskopf
and the District Attorney's Chief Financial Investigator, Robert
Demarest, had repeatedly declared all the money accounted for.
Id. ¶¶ 49-51, 53; Plaintiff's Ex. C and D. Nonetheless, the
DOCS Central Office denied Romer's third application in August
1998. The disapproval stated that "[a] 26 page sentencing
memorandum that was prepared by the prosecuting ADA was provided
to this Office". Id. ¶¶ 55, 57. Romer wrote to Recore
questioning why Recore's name rather than that of the Central
Office representative was listed as reviewer of his denied
application. He alleges that the reviewer identification
"CTRLJFR" meant "Central — James F. Recore." Id. ¶¶ 58-59, 61;
Ex. E. The Central Office's (or allegedly Recore's) denial of
Romer's third application was again affirmed by Recore. Id. ¶
62. In response to an open letter Romer addressed to the
Governor, Commissioner Goord and Recore, Commissioner Goord
allegedly replied in September 1998 that the sentencing
memorandum prepared by the prosecuting attorney's office and
forwarded to DOCS noted that "[a] large portion of money has
never been accounted for." Id. ¶ 57.
In December 1998, The New York Times published an article
which quoted Mauskopf, who had left the DA's office in 1995 to
assume an appointment as New York State Inspector General, id.
¶ 6, as saying that the prosecutors "were not able to trace" all
the stolen money, leaving the impression that Romer "laundered
the money and still had it hidden somewhere." Id. ¶ 63. Romer
wrote to Mauskopf pointing to contrary statements by her and
Demarest at trial, and urging her to correct the record. Id. ¶¶
64-66; Ex. F. Romer also wrote to Commissioner Goord and Recore
urging reconsideration of his application, disputing the DOCS
report, and pointing to an Albany Times Union article which
appeared in September 1998 in which Flateau allegedly said that
Romer was a threat to flee because there was stolen money still
missing that Romer could have stashed away. Id. ¶¶ 68-71; Ex. G
(letter to Goord and Recore, copied to Flateau and Mauskopf).
Romer's fourth work release application was disapproved in July
1999. The denial was again affirmed by Recore on appeal in August
1999, at which time Romer was ordered
not to reapply until June 2000. Id. ¶¶ 73-75, 77. Romer asserts
that defendants should have known that there was no stolen money
for which there has been no accounting and that defendants'
statements to the contrary are false. He asserts deprivation of
his rights to due process under the Fourteenth Amendment by
virtue of the alleged misinformation and the consequent denials
of his work release applications. Id. ¶¶ 78-83.
2. Unjustified Publication Claim
Romer secondly claims that the DA Defendants and DOCS
Defendants, except Recore, also deprived him of civil and
constitutional rights through "unjustified publication" of
information concerning his conviction in the March 1999 edition
of "DOCS TODAY", the Department's monthly magazine published
under Flateau's authority. Id. ¶¶ 84, 89. Romer alleges that
DOCS had a long-time policy of keeping inmates' conviction
history confidential, as illustrated by an article in the May
1999 "DOCS TODAY" and a memorandum issued by Deputy
Superintendents of several inmate facilities affirming this
uniform policy. Id. ¶¶ 85-88, 90. The article acknowledged
that, because when an inmate's crime was revealed to the prison
population "the potential for violence, threats, and extortion
becomes a possibility . . ., [a]s a result . . . [n]o inmate is
to be allowed to possess any . . . printed information about
another inmate". Id. ¶ 90. Romer alleges that despite this
policy, with the knowledge, consent and approval of Goord and
"directly and indirectly, at the behest" of DA Defendants,
Flateau allowed publication of the DOCS TODAY article naming
Romer and his offenses. The article, reporting on a court
rejection of a petition Romer filed challenging DOCS's denying
him Merit Time, stated that "[a] disbarred Manhattan attorney who
was sentenced in 1992 to a term of 7½ to 22½ years for stealing
more than $6 million from various clients, inmate Romer had high
school, college and law school degrees prior to his
incarceration." Id. ¶ 91; Plaintiff's Ex. I. Romer further
alleges that the comment was published in order to injure him
physically and emotionally, and to subject him to "vexation and
harassment," which occurred because the article was widely
distributed to various DOCS facilities and their inmates. Id. ¶
3. Conspiracy and Intentional Infliction of Emotional
Romer further alleges that the DA Defendants and DOCS
Defendants except Flateau met and communicated from January 1991
through August 1999 by phone, letters, memoranda, fax, and e-mail
to conspire to violate his civil and constitutional rights. Id.
¶ 101-102. He also claims intentional infliction of emotional
distress in that defendants individually caused him physical and
emotional distress through "extreme, outrageous and unjustified"
actions. Id. ¶ 109.
As relief for the four causes of action he pleads, Romer
demands both compensatory and punitive damages from defendants in
their individual capacities, and alleges that defendants are not
entitled to assert official immunity.
A Fed.R.Civ.P. 12(b)(6) motion to dismiss hinges on a claim's
"legal sufficiency." Goldman v. Belden, 754 F.2d 1059, 1067 (2d
Cir. 1985). In considering the motion, the court must examine the
factual allegations of the complaint, including exhibits to the
complaint and documents or statements incorporated in it by
reference. See Cortec Industries, Inc. v. Sum Holding, L.P.,
949 F.2d 42, 47 (2d Cir. 1991). For purposes of the motion, the
factual pleadings in the complaint are deemed true and all
reasonable inferences are drawn in plaintiff's favor. See
Grandon v. Merrill Lynch & Co., 147 F.3d 184, 188 (2d Cir.
1998); Gant v. Wallingford Bd. of Educ.,
69 F.3d 669, 673 (2d Cir. 1995). Dismissal is warranted if it
appears beyond doubt that under no set of facts would plaintiff
be entitled to relief. See Conley v. Gibson, 355 U.S. 41, 78
S.Ct. 99, 2 L.Ed.2d 80 (1957). The Second Circuit has stressed
that this Rule 12(b)(6) motion standard applies with particular
force when a plaintiff alleges civil rights violations or appears
pro se.*fn1 See Chance v. Armstrong, 143 F.3d 698, 701 (2d
Cir. 1998); Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir.
Liability under § 1983 requires that the defendants (1) engage
in some action under color of state law (2) in a manner depriving
plaintiff of rights, privileges, or immunities secured by the
Constitution. See 42 U.S.C. § 1983; Flagg Bros., Inc. v.
Brooks, 436 U.S. 149, 155, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978).
B. Applicable Immunity Defenses
A threshold legal issue raised here by both sides, and
potentially dispositive of the motion as to some or all of the
defendants, relates to whether defendants may be entitled to
assert official immunity and what forms of immunity may be
applicable. The Second Circuit has enunciated some guiding
principles to govern this inquiry.
[T]o the extent that such a claim is asserted against
the state official in his official capacity, he may
assert the state's Eleventh Amendment immunity
against suit, but he may not assert a personal
official privilege of absolute or qualified immunity.
To the extent that such a claim is asserted against
him in his individual capacity, he may assert
privileges of absolute or qualified immunity but
may not assert immunity under the Eleventh Amendment.
Ying Jing Gan v. City of New York, 996 F.2d 522, 529 (2d Cir.
1993) (emphasis added). As complaints often fail to specify the
capacity in which defendants are sued, courts must make that
determination by examining the "course of proceedings." Kentucky
v. Graham, 473 U.S. 159, 167, 105 S.Ct. 3099, 87 L.Ed.2d 114
(1985); see also Hrubec v. City of New York, No. 93 Civ. 8367,
1995 WL 422023 *2 (S.D.N.Y. July 18, 1995) (applying Kentucky v.
Graham); Shabazz v. Coughlin, 852 F.2d 697, 700 (2d Cir. 1988)
(holding that plaintiff's request for punitive and compensatory
damages and defendant's failure to raise an Eleventh Amendment
defense indicated that the parties believed the suit against
defendant was filed in his individual capacity). When plaintiff
seeks punitive damages and defendants claim qualified immunity,
an individual capacity suit may be inferred, although ambiguous