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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 ...

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