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ROMER v. MORGENTHAU

September 26, 2000

STEVEN J. ROMER, PLAINTIFF,
V.
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.

    DECISION AND ORDER

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.

FACTS

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 was held.

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. ¶ 93-94.

3. Conspiracy and Intentional Infliction of Emotional Distress

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.

DISCUSSION

A. Standards of Review

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. 1994).

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 pleadings ...


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