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CORBETT v. DWYER

December 3, 2004.

EDWARD F. CORBETT, Plaintiff,
v.
AL DWYER, Parole Officer in the New York State Division of Parole, and JOHN WATERS, Sergeant in the Troy Police Department, and the CITY OF TROY, Defendants.



The opinion of the court was delivered by: LAWRENCE KAHN, District Judge

MEMORANDUM-DECISION AND ORDER*fn1

I. Background

Plaintiff Edward Corbett ("Corbett") filed this action pursuant to 42 U.S.C. § 1983 and § 1985 against Defendants Parole Officer Al Dwyer ("Dwyer"), Troy Police Sergeant John Waters ("Waters") and the City of Troy ("Troy"). Defendants Waters and Troy filed a cross-claim against Defendant Dwyer. Currently before the Court is a motion for summary judgment by Dwyer against Plaintiff Corbett and Defendants Waters and Troy, and a motion for summary judgment by Waters against Corbett.

  II. Facts

  On October 21, 1988, Corbett was convicted of Rape 1 in Rensselaer County Court and sentenced to a term of incarceration of 5-15 years. Corbett Memo. (Dkt. No. 44) at 1. In early 1997, Corbett was brought before Rensselaer County Court Judge Patrick J. McGrath by the New York State Board of Examiners of Sex Offenders ("Board") for assessment of his final risk level pursuant to § 168 of the New York State Corrections Law, the Sex Offender Registration Act ("SORA"). Id. at 1-2. Corbett objected to the application of the SORA to him because he committed the crime before the SORA was enacted. Id. at 2. On February 11, 1997, Judge McGrath stated in a letter to Malcolm Hopper of the Board that, after consulting Doe v. Pataki, 919 F. Supp. 691 (S.D.N.Y. 1996), he agreed with Corbett that he was unable to assess a final risk level to Corbett. McGrath Letter (Dkt. No. 40, Ex. D). However, on March 7, 1997, Board Chairperson Elizabeth M. Devane informed Judge McGrath in a letter that in Doe v. Pataki, 940 F. Supp. 603 (S.D.N.Y. 1996), the court subsequently held that "retroactive application of the Act's registration provisions are not violative of the Ex Post Facto Clause and that such registration [under the SORA] is constitutional." Devane Letter (Dkt. No. 29, Ex. A). Thereafter, on March 25, 1997, Judge McGrath determined Corbett's risk level to be level three, the highest level of risk. Risk Assessment (Dkt. No. 29, Ex. D).

  On March 24, 1997, Corbett was conditionally released to the supervision of the New York State Division of Parole. Corbett Memo. (Dkt. No. 44) at 2. On January 12, 2000, Corbett was taken into custody and charged with nine violations of his conditions of release.*fn2 Id. Corbett's final parole revocation hearing in front of Administrative Law Judge ("ALJ") Bruce Van Dyk was on March 15, 2000.*fn3 Complaint (Dkt. No. 1) at ¶ 22. Corbett pled guilty to all charges, except for Charges 2 and 4, which were withdrawn pursuant to the plea agreement. Id. at ¶ 23. Waters agreed not to charge Corbett with failing to register under the SORA as part of the plea agreement. Corbett Memo. (Dkt. No. 44) at 3. ALJ Van Dyk concurred in the joint recommendation to hold Corbett until his maximum expiration date, which was then forwarded to the New York State Parole Board. Dwyer Memo. (Dkt. No. 29) at 4-5. Corbett was sent back to prison until March 30, 2002, the maximum expiration date of his original sentence. Corbett Memo. (Dkt. No. 38) at 5; Dwyer Memo. (Dkt. No. 29) at 5. He never took an administrative appeal from that determination. Dwyer Memo. (Dkt. No. 29) at 5.

  On January 3, 2002, Corbett filed the instant complaint. Complaint (Dkt. No. 1). In it, he asserted five causes of action: (1) knowing and intentional violations of his Fourth, Fifth, and Fourteenth Amendment rights, specifically the denial of due process and unreasonable seizure, by applying the SORA to him ex post facto; (2) malicious prosecution and conspiracy to fraudulently coerce Corbett into pleading guilty to non-existent parole offenses; (3) denial of due process by Dwyer in assessing Corbett at risk level three in violation of a court order; (4) Waters' threatening to arrest Corbett for failure to register if he did not plead guilty to the parole violations pursuant to a policy and practice of Troy, through its police department, to use its officers for illegal purposes; and (5) malicious prosecution and false imprisonment. Id. at 11-14. In their answer, Waters and Troy asserted a cross-claim against Dwyer, alleging that any liability on their part was the result of Dwyer's negligent and/or intentional acts. Waters/Troy Answer (Dkt. No. 22) at ¶ 33. Currently before the Court are motions for summary judgment by Waters and Dwyer against Corbett, and by Dwyer against Waters and the City of Troy.

  III. Discussion

  A. Summary Judgment Standard

  Federal Rule of Civil Procedure 56 provides that summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In applying this standard, courts must "`resolve all ambiguities, and credit all factual inferences that could rationally be drawn, in favor of the party opposing summary judgment.'" Brown v. Henderson, 257 F.3d 246, 251 (2d Cir. 2001) (quoting Cifra v. Gen. Elec. Co., 252 F.3d 205, 216 (2d Cir. 2001)).

  Once the moving party meets its initial burden by demonstrating that no material fact exists for trial, the nonmovant "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (citations omitted). The nonmovant "must come forth with evidence sufficient to allow a reasonable jury to find in her favor." Brown, 257 F.3d at 251 (citation omitted). Bald assertions or conjecture unsupported by evidence are insufficient to overcome a motion for summary judgment. Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991); W. World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990).

  B. SORA Registration

  As a condition of his release, Corbett was required to register as a sex offender pursuant to the SORA. Corbett claims that according to the Southern District's decision in Doe v. Pataki, 919 F. Supp., it would be unconstitutional to require him to register as a sex offender under the SORA ex post facto. Complaint (Dkt. No. 1) at ¶ 9. Further, he asserts that the February 11, 1997 letter to the Board by Judge McGrath, in which the Judge questioned his ability to assess Corbett under the SORA, was a court order barring the application of the SORA to him. Corbett Memo. (Dkt. No. 38) at 8. Corbett also alleges that Dwyer unilaterally decided to assess him as a level three risk and treat him accordingly. Id.

  However, as Chairperson Devane noted in her March 7, 1997 letter to Judge McGrath, the Southern District only enjoined the notification (not registration) provisions of the SORA in that case. Doe v. Pataki, 919 F. Supp. at 702. Subsequently, the Southern District held and the Second Circuit affirmed that the application of the registration provisions did not violate the Ex Post Facto Clause.*fn4 Doe v. Pataki, 120 F.3d 1263 (2d Cir. 1997); Doe v. Pataki, 940 F. Supp. at 629. Therefore, Corbett could constitutionally be required to register as a sex offender. On March 25, 1997, Judge McGrath assessed Corbett at risk level three. Risk Assessment (Dkt. ...


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