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United States District Court, S.D. New York

December 1, 2004.

MICHAEL BEST, Plaintiff,

The opinion of the court was delivered by: HAROLD BAER, JR., District Judge[fn1] [fn1] Nelson Wen, a fall 2004 intern in my Chambers and a second-year law student at New York University School of Law, provided substantial assistance in the research and drafting of this Opinion and Order.


Defendants Parole Officer Glen Johnson ("Johnson") and the New York State Division of Parole ("the Division") (collectively, "the defendants") move pursuant to Federal Rule of Civil Procedure ("Fed.R.Civ.P.") 12(b)(6) to dismiss this 42 U.S.C. § 1983 action filed by plaintiff Michael Best ("Best"). Best avers that the Division miscalculated the length of time he was to be under parole supervision, which deprived him of his liberty in that he was unlawfully forced to report to the Division from August 1, 2002 until March 26, 2003 and detained on various parole violations during this time frame. Best seeks monetary damages in the amount of $47,600. Defendants move to dismiss Best's complaint on the grounds that: (1) Best is not entitled to jail time credit under N.Y. Penal Law § 70.40(3); (2) Best is collaterally estopped from asserting his claim; (3) the Division cannot be sued under 42 U.S.C. § 1983; (4) Johnson had no personal involvement in the calculation of Best's parole sentence; and (5) Johnson's actions were objectively reasonable and thus he is entitled to qualified immunity. For the reasons set forth below, the defendants' motion to dismiss is granted.


  Consideration of a 12(b)(6) motion "is generally limited to the facts as presented within the four corners of the complaint, to documents attached to the complaint, or to documents incorporated within the complaint by reference." Taylor v. Vt. Dep't of Educ., 313 F.3d 768, 776 (2d Cir. 2002). The Court "may also look to public records, including complaints filed in state court, in deciding a motion to dismiss." Blue Tree Hotels Inv. (Canada), Ltd. v. Starwood Hotels & Resorts Worldwide, Inc., 369 F.3d 212, 217 (2d Cir. 2004).

  A. Best's Original Offense

  Best was arrested on May 1, 1989 and charged with attempted murder in New York State Supreme Court, Bronx County. He was later convicted of attempted murder in the second degree and sentenced on October 19, 1989 to 3 to 9 years in prison. After serving the minimum sentence, the New York State Department of Correctional Services ("DOCS") released Best from Fishkill Correctional Facility to the Division for parole supervision on April 27, 1992. At this time, the maximum expiration date of Best's parole supervision, i.e., the date Best's parole was to end, was April 27, 1998.

  B. Subsequent Arrests and Failures to Report

  According to Best, the maximum expiration date of his parole was altered by three subsequent events. First, on January 29, 1994, Best was arrested and charged in Bronx County with two separate felonies committed on January 19 and 23, 1994. Best was convicted on February 2, 1995 of attempted assault in the second degree and convicted on April 7, 1995 of grand larceny in the fourth degree, for which he was sentenced to concurrent terms of 2 to 4 years and 1½ to 3 years imprisonment. Since Best was still under parole supervision at the time of his arrest, the Division declared him delinquent as of January 23, 1994, the date of his second 1994 felony, and his parole supervision time from his original 1989 conviction was tolled until he was released from state prison on January 29, 1996 when he resumed parole supervision. The maximum expiration date of Best's parole was then adjusted from April 27, 1998 to May 2, 2002*fn2 to account for his incarceration on 1994 charges.

  Second, on July 23, 1996, Best absconded from his parole officer's supervision and was declared delinquent as of that date. Best was arrested on September 27, 1996 in Albany County and charged with criminal impersonation and two counts of criminal possession of a controlled substance. Best pleaded guilty to criminal impersonation in the second degree on January 17, 1997 and thereafter was sentenced to 6 months in Albany County Jail. As a result of this parole violation and subsequent conviction, the Division initiated parole revocation proceedings. After a final hearing, the Division revoked Best's parole and imposed a 12-month parole hold. From March 7, 1997 to March 28, 1997, Best was detained for his parole violation, and as a result given 21 days jail time credit.*fn3 On March 28, Best was returned to a DOCS facility to serve the remainder of his 12-month sentence for his parole violation. According to Best's calculations, his maximum expiration date was now July 6, 2002.

  Finally, Best once again failed to report to his parole officer between April 7, 1998 and May 5, 1998. These 28 days, when added to his maximum expiration date, pushed it back to August 3, 2002. Best further calculates that he should have been given two days credit, one for each failure to report, as the Division typically allows a 1 day grace period for absconders. Thus, Best contends that his parole supervision should have been complete by August 1, 2002. For reasons we need not delve into here, the Division calculated Best's maximum expiration date as January 11, 2003.

  C. Best's Article 78 Proceeding

  On May 10, 2002, while in DOCS custody at the Riverview Correctional Facility, Best initiated an Article 78 proceeding in St. Lawrence County Supreme Court ("St. Lawrence Sup. Ct."). Def. Notice of Mot., Ex. 1., Best v. N.Y. State Div. of Parole, Index # 111751 (N.Y. Sup. Ct. Sept. 27, 2002) (unreported). In his petition, Best argued that August 1, 2002 — not January 11, 2003 as the Division calculated — should be the proper end date of his parole sentence, and thus he was entitled to 161 days of jail time credit towards his parole sentence. According to Best, he was not properly credited for time spent in the Albany County Jail for his 1997 criminal impersonation conviction. In its September 27, 2002 Decision and Judgment, the St. Lawrence Sup. Ct. ruled that the Division's calculations were correct and denied Best's petition for relief. The St. Lawrence Sup. Ct. based its holding on the applicable statute, which provides that a parole violation and concomitant delinquency interrupts the underlying sentence until such time as the individual is returned to DOCS custody. N.Y. Penal Law §§ 70.40(3)(a), (c). A credit is available for such intervening periods of custody only if "such custody was due to an arrest or surrender based upon the delinquency." N.Y. Penal Law § 70.40(3)(i) (emphasis supplied), which here it was not. Thus, Best was not entitled to any credit because his parole supervision was suspended during the entire period he was jailed at Albany County Jail for his 1997 criminal impersonation conviction, beginning on the date of his delinquency, July 23, 1996, until March 28, 1997, when he was returned to the DOCS.*fn4/*fn5

  D. Subsequent Events

  Best was released from Riverview Correctional Facility on August 30, 2002. On September 3, 2002, Best notified his then-parole officer, Johnson, that, according his calculations, the maximum expiration date of his parole had passed, which was apparently based on Best's continuing belief that his parole sentence had expired on August 1, 2002. Best alleges that Johnson ignored his claim and ordered him to continue to report. On September 24, 2002, Best reported that he was having problems with someone who had previously assaulted him. Because he did not want to violate the law, Best requested that Johnson either release him from parole so Best could leave the neighborhood or that Johnson "lock him up." Compl. at 6 (counting). Johnson responded by imprisoning Best until October 7, 2002 for "alleging that he would commit a crime." Id. at 7.

  A preliminary hearing was held on October 7, 2002 before a hearing officer, apparently to evaluate two alleged parole violations, including that arising out of Best's statements to Johnson on September 24, 2002. At the hearing, Best maintained that he had finished his parole supervision on August 1, 2002 and that "there was an error on account of Albany County." Compl., Ex. A at 3 (counting). Johnson informed the hearing officer that one of Best's violations was based on the fact that on September 24, 2002, Best "specifically said [that] before the day ended he would do something, and after reviewing Mr. Best's records [he] ha[d] to take his statements seriously."*fn6 Id. at 5 (counting). The hearing officer dismissed both charges and restored Best to parole supervision under the original terms and conditions of his release. Id.

  Best persisted in his belief that he was no longer required to report to his parole officer. Ultimately, the Division held a parole revocation hearing on March 26, 2003, at which time the parole violation charges were dismissed because the maximum expiration date of Best's parole had already passed. In sum, Best alleges that the Division miscalculated his parole sentence and continued him on parole past the expiration date of his sentence from August 1, 2002 until March 26th, 2003. He seeks monetary damages in the amount of $200 for each day, which totals $47,600.


  A. Standard of Review

  On a motion to dismiss, the court "accept[s] all of plaintiff's factual allegations in the complaint as true and draw[s] inferences from those allegations in the light most favorable to the plaintiff." Desiderio v. Nat. Ass'n of Sec. Dealers, Inc., 191 F.3d 198, 202 (2d Cir. 1999). "The court's function on a Rule 12(b)(6) motion is not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient." Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985). Therefore, "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The complaint "need only meet the requirements of our `simplified notice pleading standard [which] relies on liberal discovery rules and summary judgment motions to define disputed facts and issues and to dispose of unmeritorious claims.'" Courtenay Communications Corp. v. Hall, 334 F.3d 210, 213 (2d Cir. 2003) (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002)) (alteration in original). In addition, pro se complaints, "however inartfully pleaded," are held to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520-21 (1972). The Court's mandate to construe a complaint in favor of a pro se litigant requires the Court to "read [plaintiff's] supporting papers liberally, and . . . interpret them to raise the strongest arguments they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994).

  B. Collateral Estoppel

  A threshold question is whether Best is collaterally estopped from bringing this action because of the ruling against him in the Article 78 proceeding in St. Lawrence Sup. Ct. The state law of collateral estoppel is controlling when a federal court determines the preclusive effect of a state court decision. Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75, 79 (1984). Under New York law, "collateral estoppel . . . precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privy, whether or not the tribunals or causes of action are the same." Ryan v. New York Tel. Co., 62 N.Y.2d 494, 500 (1984). There are two principal requirements for the application of collateral estoppel. First, the issue alleged to be collaterally estopped "must have been material to the first . . . proceeding and essential to the determination therein, and it must be the point actually to be determined in the second . . . proceeding such that `a different judgment in the second would destroy or impair rights or interests established by the first.'" Ryan, 62 N.Y. 2d at 503 (quoting Schuylkill Fuel Corp. v. Nieberg Realty Corp., 250 N.Y. 304, 307 (1929)) (internal citation omitted). In other words, collateral estoppel applies only when the issue in question "an issue of fact or law has been litigated and determined by a valid and final judgment and the determination was essential to the judgment." Wilson v. Steinhoff, 718 F.2d 550, 552 (2d Cir. 1983). Second, "the party to be estopped must have had a `full and fair opportunity to contest the decision now said to be controlling." Kosakow v. New Rochelle Radiology Assocs., P.C., 274 F.3d 706, 730 (2d Cir. 2001) (quoting Schwartz v. Public Administrator, 24 N.Y.2d 65, 71 (1969)). "Determination of whether collateral estoppel applies does not depend on whether the relief now sought was available in the [prior proceeding]; what matters is whether there was a full opportunity to litigate identical issues." Burgos, 14 F.3d at 792. "The burden of proving identity of the issue rests on the proponent of collateral estoppel, while the opponent bears the burden of proving that he or she did not have a full and fair opportunity to litigate the issue. Kosakow, 274 F.3d at 730 (citing Schwartz, 24 N.Y.2d at 73).

  1. Identity of Issues

  In Best's Article 78 proceeding, the central issue was whether Best was entitled to credit for time he spent in custody from September 27, 1996 until March 28, 1997 related to his 1997 Albany County conviction. The St. Lawrence Sup. Ct. held that the Division properly refused to award Best credit for this period, as N.Y. Penal Law § 70.40(c) only affords credit to parolees detained on an arrest or surrender related to a delinquency and does not authorize any credit for parolees detained for new criminal charges. All of Best's allegations stem from the Division's calculation of his parole sentence upon his release from Albany County Jail, a calculation that was upheld by the St. Lawrence Sup. Ct. Best's complaint, plea for damages beginning August 1, 2002, and the substantive allegations in this suit indicate that he continues to believe that his parole should have ended on that date. Moreover, Best contests his post-August 1, 2002 parole violations and penalties, claiming they never would have occurred but for the Division's refusal to award jail time credit for his 6-month sentence on his 1997 conviction. Best has not alleged any other miscalculations and thus the issue is identical to the one disposed of by the St. Lawrence Sup. Ct. 2. Full and Fair Opportunity to Litigate

  As the New York Court of Appeals has observed, "[t]he question as to whether a party has had a full and fair opportunity to contest a prior determination cannot be reduced to a formula." Gilberg v. Barbieri, 53 N.Y.2d 285, 292 (1981). Instead, this inquiry "requires an exploration of the various elements which make up the realities of litigation." Schwartz, 24 N.Y.2d at 72. Among the factors to be considered are the forum of the prior litigation, the incentive and initiative to litigate, the extent of the litigation, the competence and experience of counsel, and the availability of new evidence. Id.

  Although "serious fairness concerns arise where a defendant has little incentive to litigate the relevant issue vigorously in the original action," United States v. U.S. Currency in the Amount of $119,984, More or Less, 304 F.3d 165, 175 (2d Cir. 2002) (internal quotation marks and citation omitted), no such concerns are present here. It is difficult to comprehend how Best's incentive to litigate the issue of his parole calculation in a proceeding in which his liberty was at stake (the Article 78 St. Lawrence Sup Ct. proceeding) could be any less important than his incentive to litigate for monetary damages (the instant case).

  As I recently observed, a litigant's pro se status is relevant to the question of whether there was a full and fair opportunity to be heard. Palmer v. Goss, No. 02 Civ. 5804, 2003 WL 22519446, at *5 (S.D.N.Y. Nov. 5, 2003), aff'd 364 F.3d 60 (2d Cir. 2004) (citing cases). It is not, however, dispositive. Id. This case differs from Palmer in several important respects. Here Best did not have any discovery, evidentiary, or cross-examination difficulties that Palmer encountered in litigating his claim in state court. Indeed, here there was no trial at all. Instead, the St. Lawrence Sup. Ct. resolved Best's Article 78 petition on the basis of the parties' written submissions that outlined Best's arrest and parole history — which the parties do not dispute — and the law governing parole calculation and jail credits. Even while appearing pro se, Best conveyed the essence of his argument, which, at least in this case, was supported by his detailed chronology and supporting documentation. In sum, there is no reason to believe that Best did not have a full and fair opportunity to litigate his parole calculation claim. The St. Lawrence Sup. Ct. simply disagreed with his conclusion.

  Furthermore, granting defendants' motion to dismiss will serve the underlying policies of the collateral estoppel doctrine, which are, inter alia, "to conserve the time and resources of the court and the parties, and to avoid possible inconsistent determinations." People v. Aguilera, 82 N.Y.2d 23, 30 (1993); see also Allen v. McCurry, 449 U.S. 90 (1980). Finally, a decision on the merits here might well be barred by the Rooker-Feldman doctrine, which, in essence, bars claims adjudicated in or inextricably intertwined with a prior state court judgment based on the bedrock principle that "`that inferior federal courts have no subject matter jurisdiction over cases that effectively seek review of judgments of state courts and that federal review, if any, can occur only by way of a certiorari petition to the Supreme Court.'" Palmer, 2003 WL 22519446, at *3 (quoting Moccio v. N.Y. State Office of Ct. Admin., 95 F.3d 195, 197 (2d Cir. 1996)). Best did not appeal the ruling of the St. Lawrence Sup. Ct., and thus the decision was final. Chartier v. Marlin Mgmt., LLC, 202 F.3d 89, 95-96 (2d Cir. 2000) (collecting cases applying the New York law of collateral estoppel). Since the preclusive effect of the St. Lawrence Sup. Ct.'s judgment is dispositive, it is not necessary to reach the other grounds for defendants' motion to dismiss.

  C. Alternative Grounds for Relief

  To the extent that Best challenges his imprisonment for threatening to commit a crime (resulting in his detainment from September 24, 2002 to October 7, 2002), his claim is barred by this Court's limited ability to review actions of either the Parole Board or one of its officers. "Judicial review of Board action with respect to a finding of parole violation is admittedly narrow and limited." People ex rel. Baker v. Follette, 309 N.Y.S.2d 125, 125 (2d Dep't 1970). "[G]overnment officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The fact pattern here fits squarely within that doctrine.


  For the forgoing reasons, defendants' motion to dismiss is granted. The Clerk of the Court is instructed to close this motion and any other open motions and remove this case from my docket.


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