United States District Court, N.D. New York
December 3, 2004.
EDWARD F. CORBETT, Plaintiff,
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
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.
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.
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
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. No. 29, Ex. D).
Therefore, it was pursuant to a lawful order by Judge McGrath,
not a decision by Dwyer, that Corbett was treated as a level
three risk under the SORA.
C. Malicious Prosecution and False Imprisonment
To sustain a malicious prosecution claim, a plaintiff must show
"(1) the initiation or continuation of a criminal proceeding
against plaintiff, (2) termination of the proceeding in
plaintiff's favor, (3) the lack of probable cause for commencing
the proceeding, and (4) actual malice as the motivation for defendant's actions." Rounseville
v. Zahl, 13 F.3d 625, 628 (2d Cir. 1994). Proceedings are
terminated in the plaintiff's favor "only when their final
disposition is such as to indicate that the accused is not
guilty." DiBlasio v. City of New York, 102, F.3d 654, 658 (2d
Cir. 1996). In this case, Corbett pled guilty to seven of the
nine charges. Charges 2 and 4 were withdrawn pursuant to the plea
agreement. Therefore, Corbett cannot prove that the proceedings
were terminated in his favor, and thus he cannot satisfy the
requirements for a malicious prosecution claim. See, e.g.,
Almonte v. Florio, 2004 WL 60306, at *7 (S.D.N.Y. Jan. 13,
Similarly, a claim of false imprisonment under § 1983 is barred
by a plea of guilty. See, e.g., Keyes v. City of Albany,
594 F. Supp. 1147, 1155 (N.D.N.Y. 1984) (Miner, J.). To
successfully prove false imprisonment, a plaintiff must show that
"(1) the defendant intended to confine [the plaintiff], (2) the
plaintiff was conscious of the confinement, (3) the plaintiff did
not consent to the confinement, and (4) the confinement was not
otherwise privileged." Singer v. Fulton County Sheriff,
63 F.3d 110, 118 (2d Cir. 1995). A claim of false imprisonment cannot be
upheld if there existed probable cause to justify the
confinement. See id.; see also Cameron v. Fogarty,
806 F.2d 380, 387 (2d Cir. 1986). By pleading guilty to the charges,
Corbett conceded that there was probable cause. See Timmins v.
Toto, 91 Fed. Appx. 165, 166-67 (2d Cir. 2004); see also
Cameron, 806 F.2d at 387. Because the confinement was
privileged, Corbett cannot sustain a claim for false
D. Conspiracy and Coercion
Corbett alleges that Dwyer and Waters conspired to coerce
Corbett into pleading guilty to the charged offenses by having
Waters threaten to arrest Corbett if he did not plead guilty. Complaint (Dkt. No. 1) at ¶¶ 46, 50.*fn5 Corbett claims that
Dwyer approached Waters to persuade Waters to attend the parole
revocation hearing and threaten Corbett with arrest when Waters
at that time had no intention of arresting him. Corbett Memo.
(Dkt. No. 44) at 3. Corbett stated that Waters agreed to do so,
and in fact threatened him with arrest under oath at the hearing.
Corbett Memo. (Dkt. No. 38) at 5. However, a review of the parole
revocation hearing transcript shows no such threat. Transcript
(Dkt. No. 40, Ex. G). The only statement by Waters at the hearing
was in response to a question by Corbett's attorney:
MR. GROSS: . . . Sergeant Waters, is it the agreement
of yourself and the Troy Police Department that Mr.
Corbett would not be charged for failing to register
or notify as a sex offender?
WITNESS WATERS: That's correct.
Transcript (Dkt. No. 29, Ex. E) at 4. This statement is merely an
agreement by Waters not to charge Corbett for failure to register
or notify as part of Corbett's plea agreement with the Division
of Parole. Waters' affirmative answer to Gross' question cannot
be construed as a threat against Corbett. Corbett does not allege
that Waters stated or implied in any other way that he would have
arrested Corbett had he not pled guilty. As this brief hearing
testimony by Waters is the basis for Corbett's allegations that
there was a conspiracy to coerce him and that he was actually
coerced into pleading guilty to the charges, these allegations
are without merit.
Based on the foregoing discussion, it is hereby
ORDERED, that Dwyer's motion for summary judgment is GRANTED;
and it is further ORDERED, that Waters' motion for summary judgment is GRANTED;
and it is further
ORDERED, that this case be DISMISSED in its entirety; and it is
ORDERED, that the Clerk serve a copy of this order on all