United States District Court, S.D. New York
December 7, 2004.
CHRISTOPHER FARRELL, Plaintiff,
COREY BURKE and GREGORY FREEMAN, Defendants.
The opinion of the court was delivered by: DEBORAH BATTS, District Judge
Plaintiff Christopher Farrell, a former New York State parolee,
brings this action pursuant to 42 U.S.C. § 1983, alleging that
Defendants Corey Burke and Gregory Freeman violated his
constitutional rights under the Due Process Clause of the
Fourteenth Amendment by imposing and enforcing a condition of
parole that prohibited Plaintiff from possessing "pornographic
materials." Plaintiff now moves for partial summary judgment. For
the following reasons, Plaintiff's motion is DENIED.
This is the second Opinion issued in this case. Farrell v.
Burke, No. 97 Civ. 5708, 1998 WL 751695, (S.D.N.Y. Oct. 28,
1998). On October 26, 1990, Plaintiff pleaded guilty to and was
convicted of three counts of Sodomy in the Third Degree, and was
sentenced to three indeterminate prison terms of one to three
years. (Jt. Stmt. ¶ (i)(a)3.)*fn1 After serving almost four
years, he was released on parole on October 17, 1994, with parole
supervision to expire on October 17, 1996. (Jt. Stmt. ¶ (i)(a)4.)
Plaintiff signed a modified set of special conditions, one of which (the "Special Condition") states: "I will not own or
possess any pornographic material." (Jt. Stmt. ¶ (i) (a)8, 53.)
Plaintiff received no additional information about the scope of
this special condition. (Compl. ¶ (i)(a)10.) Plaintiff signed a
statement certifying that he had read and understood the special
conditions of his parole release; this was witnessed by his
parole officer at the time, Clifford J. Parris. (Jt. Stmt. ¶
(i)(a)11, 83.) On May 16, 1996, Defendant Corey Burke was
assigned as Farrell's parole officer. (Jt. Stmt. ¶ (i)(a)14.)
Defendant Burke told Plaintiff that the special conditions still
applied and that he anticipated imposing more conditions. (Jt.
Stmt. ¶ (i)(a)15.)
The parties dispute whether or not Defendant Burke discussed
with Farrell what was meant by "pornographic material";
Defendants admit that Burke did not define the term for
Plaintiff, and did not delineate all the materials encompassed by
the Special Condition. (Jt. Stmt. ¶ (i)(a)59.)
On May 29, 1996, Burke and Freeman found three items
(collectively, "The Publications") in Plaintiff's home, that they
believed violated the Special Condition: a book, Scum, True
Homosexual Experiences ("Scum"), a second book, Best Gay
Erotica, 1996, and the summer 1989 edition of a periodical, "My
Comrade." (Jt. Stmt. ¶ (i)(a)29.) Defendant Freeman determined
that they violated the Special Condition because they contained sexually
explicit pictures, although he had not read any of the text of
The Publications. (Jt. Stmt. ¶ (i)(a)23-24.) Burke later conceded
that the book Best Gay Erotica, 1996 was not pornographic and
its possession was not a violation of the Special Condition. (Jt.
Stmt. ¶ (i)(a)37.)
The first article in "My Comrade," "Horny Hunks Feud for Hapi
Phace," describes a vacation "turned into a sex romp, with two
rival romeos slugging it out for the beautiful drag queen." (Jt.
Stmt. ¶ (i)(a)25.) "My Comrade" also contains an advice column
authored by two self-proclaimed "sexperts," and an article
entitled "Coffee, Tea or He," which introduces readers to an
airline steward. (Jt. Stmt. ¶ (i)(a)26-27.)
The book entitled Scum, True Homosexual Experiences contains
a series of vignettes highlighting homosexual encounters, many of
which focus on experiences adults had with young boys. (Jt. Stmt.
¶ (i)(a)28.) For example, one story describes a sexual encounter
the author had as a 12-year-old with a 25-year-old man who had
telephoned him while making sexually-explicit prank calls. (Jt.
Stmt. ¶ (i)(a)30.) Other articles describe the authors' urges
regarding young boys, teens, and "legal aged" youths. (Jt. Stmt.
¶ (i)(a)31-33.) At a preliminary hearing, the hearing officer was presented
with evidence of the alleged parole violation, and Plaintiff was
held for a final hearing. (Jt. Stmt. ¶ (i) (a) 43.) At the final
hearing, the administrative law judge (the "ALJ") found that
Scum "includes photographs of nude males fondling or exhibiting
their erect penises and stories of sexual encounters between
males (including underage males)." (Jt. Stmt. ¶ (i)(a)46.) The
ALJ concluded that the seized materials violated the Special
Condition, and stated about Scum that "[m]ost disturbing [are]
the numerous stories which describe sexual encounters involving
underage males. I find that the parolee whose underlying involves
[sic] sexual activity with underage males was aware that
materials containing such descriptions were pornographic and
prohibited." (Jt. Stmt. ¶ (i) (a) 47.) Plaintiff's parole was
revoked. (Jt. Stmt. ¶ (i) (a) 49.)
On June 12, 1996, Plaintiff collaterally challenged the parole
revocation proceedings by filing a writ of habeas corpus in State
Supreme Court, Bronx County, entitled People ex rel. Christopher
Farrell v. Michael Jacobson, et al., (Index No. 16921/97 Bronx
County). (Jt. Stmt. ¶ (i) (a) 50.) However, the petition was
withdrawn on October 17, 1996, the same day Plaintiff's
incarceration ended. (Jt. Stmt. ¶ (i) (a) 51.) Plaintiff's parole revocation sentence was never overturned or
declared invalid by a state tribunal. (Jt. Stmt. ¶ (i) (a) 52.)
Plaintiff filed this action on July 31, 1997, seeking
injunctive and monetary relief under 42 U.S.C. § 1983, for
violations of his First Amendment right to freedom of expression
and Fourteenth Amendment right to freedom from deprivation of
liberty without due process. Defendants moved to dismiss, arguing
principally that Plaintiff failed to state a claim under
42 U.S.C. § 1983, that the § 1983 action violated the rule in Heck
v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364,
129 L.Ed.2d 383 (1994), and that Defendants were protected by absolute and
qualified immunity. The Court denied Defendants' Motion in part,
Farrell v. Burke, No. 97 Civ. 5708, 1998 WL 751695 (S.D.N.Y.
Oct. 28, 1998), finding that Plaintiff had adequately pleaded a §
1983 action, and that dismissal was inappropriate at that stage
of the proceedings because it was unclear from the Complaint
whether the rule stated in Heck applied and whether Defendants
were protected by absolute immunity. On the question of qualified
immunity, the Court found that, as a parolee, Plaintiff did not
have an unqualified right to possess pornography under the First
Amendment, and accordingly dismissed that claim. However, the
Court found that it was unclear whether Plaintiff was entitled to
an explanation of the Special Condition under the Fourteenth Amendment, and allowed
this claim to survive the Motion to Dismiss.
Plaintiff now moves for partial summary judgment on the issue
of liability, arguing that as a matter of law, the Special
Condition was overbroad and vague in its imposition and
enforcement, in violation of Plaintiff's First and Fourteenth
Amendment due process rights to freedom from vague and overbroad
restrictions on speech. (Pl. Mem. of Law at 3.) For the following
reasons, Plaintiff's motion is DENIED, and Summary Judgment is
GRANTED for Defendants.
A. Summary Judgment
Summary judgment may be granted only when there is no genuine
issue of material fact remaining for trial and the moving party
is entitled to judgment as a matter of law. Fed.R.Civ.P.
56(c); see also Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247-248 (1986) Corselli v. Couglin, 842 F.2d 23 (2d Cir.
"[T]he plain language of Rule 56(c) mandates the entry of
summary judgment, after adequate time for discovery and upon
motion, against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party's
case, and on which that party will bear the burden of proof at
trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). However, "[t]he judgment sought shall be rendered forthwith if
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."
For his summary judgment motion to succeed, Plaintiff must
show, as a matter of law, that he can establish all elements of
his claim by a preponderance of the evidence and that no
questions of material fact exist for a jury to decide. See
Consarc v. Marine Midland Back, N.A., 996 F.2d 568, 572 (2d Cir.
1993). Since the Plaintiff carries the burden of proof in this
case, Defendants will prevail in this motion by pointing to an
absence of evidence to support an essential element of
Plaintiff's claims. Id.
As a general rule, "the district court must draw all factual
inferences in favor of, and take all factual assertions in the
light most favorable to, the party opposing summary judgment".
In re State Police Litigation, 88 F.3d 111, 123, (2d Cir.
1996). All ambiguities and all inferences drawn from the
underlying facts must be resolved in favor of the party
contesting the motion, and all uncertainty as to the existence of
a genuine issue for trial must be resolved against the moving
party. LaFond v. General Physics Servs. Corp., 50 F.3d 165, 171 (2d
Cir. 1995). As is often stated, "[v]iewing the evidence produced
in the light most favorable to the nonmovant, if a rational trier
could not find for the nonmovant, then there is no genuine issue
of material fact and an entry of summary judgment is
appropriate." Binder v. LILCO, 933 F.2d 187, 191 (2d Cir.
B. Heck v. Humphrey
Relying principally on Heck v. Humphrey, 512 U.S. 477 (1994)
and Edwards v. Balisock, 520 U.S. 641 (1997), Defendants
contend Plaintiff is barred from bringing a § 1983 claim because
he never overturned his parole revocation sentence, and for
Plaintiff to succeed on his § 1983 claim would require an
invalidation of the ALJ's decision to revoke Plaintiff's parole.
In Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), the Supreme
Court held that
in order to recover damages for allegedly
unconstitutional conviction or imprisonment, or for
other harm caused by actions whose unlawfulness would
render a conviction or sentence invalid, a § 1983
plaintiff must prove that the conviction or sentence
has been reversed on direct appeal, expunged by
executive order, declared invalid by a state tribunal
authorized to make such determination, or called into
question by a federal court's issuance of a writ of
habeas corpus, 28 U.S.C. § 2254.
Under the rule of Heck, a claim for damages under Section
1983 is not cognizable when "establishing the basis for the
damages claim necessarily demonstrates the invalidity of the
conviction." Id. at 481-82. The Court made clear that this rule
did not "engraft an exhaustion requirement upon § 1983, but
rather den[ied] the existence of a cause of action." Id. at
In Edwards v. Balisock, 520 U.S. 641 (1997), an incarcerated
state prisoner alleged that a prison hearing officer who found
him guilty of four prison infractions had, for reasons of deceit
and bias, denied the prisoner the opportunity to present evidence
that the prisoner would have shown he was deprived of thirty days
of good time credit. The Court held that, because a ruling in the
prisoner's favor would imply the invalidity of the administrative
decision revoking his good time credits, the Section 1983 claim
was not cognizable until the prison's administrative decision had
been overturned. The Court acknowledged a "critical difference"
between cases wherein a Section 1983 plaintiff attacks a
procedural defect and cases, like Heck, wherein the plaintiff
challenges the substantive validity of an alleged deprivation of
rights. Edwards, 520 U.S. at 645. However, the Edwards Court
held that Heck's favorable termination requirement applied
where a Section 1983 plaintiff challenged procedures resulting in
a deprivation of rights, and where success on the claim would necessarily imply the
substantive invalidity of the deprivation. Edwards,
520 U.S. at 648.
Courts have applied Heck to bar state prisoners in custody
from bringing Section 1983 actions challenging parole revocation
unless that revocation decision is reversed or the underlying
conviction is set aside. E.g., Sumter v. Marion, 1999 WL
767426, *5 (S.D.N.Y. 1999); Sealey v. Fishkin, 1998 WL 1021470,
*4 (E.D.N.Y. 1998); see also McGrew v. Texas Bd. of Pardons &
Paroles, 47 F.3d 158, 160-61 (5th Cir. 1995).
However, subsequent cases have made evident that a majority of
Supreme Court justices agree that a former prisoner who has not
met the Heck favorable termination requirement and who is no
longer in custody "may bring a § 1983 action to attack his prior
conviction or confinement because it would be impossible for him
to satisfy Heck's favorable-termination requirement after his
release." Hernandez v. Wells, 2003 WL 22771982, *4 (S.D.N.Y.
2003) (former prisoner's Section 1983 action cognizable, because
"Heck's prohibition on the use of § 1983 suits to attack the
validity of sentences or convictions applies only to potential
plaintiffs who remain in custody.").
In Spencer v. Kemma, 523 U.S. 1 (1998), the Supreme Court
considered whether a former prisoner's habeas petition was moot, where the petitioner had been in custody when the habeas petition
was filed, but completed his term of incarceration prior to
disposition of his habeas motion. 523 U.S. 1 (1998). The Court
concluded that the petitioner's habeas petition was moot.
However, in a concurring opinion, joined by Justices O'Connor,
Ginsburg, and Breyer, Justice Souter reiterated his position,
developed in his concurring opinion in Heck, that "a former
prisoner, no longer `in custody,' may bring a § 1983 action
establishing the unconstitutionality of a conviction or
confinement without being bound to satisfy a
favorable-termination requirement that it would be impossible as
a matter of law for him to satisfy." Spencer, 523 U.S. 1, 21
(1998) (Souter, J., concurring). Writing separately in a brief
concurring opinion in Spencer, Justice Ginsburg wrote that,
although she had joined the majority opinion in Heck, she had
now "come to agree with Justice Souter's reasoning" that
"[i]ndividuals without recourse to the habeas statute because
they are not `in custody' (people merely fined or whose sentences
have been fully served, for example) fit within § 1983's `broad
reach.'" Spencer, 523 U.S. 1, 20 (1998) (Ginsburg, J.
concurring) (quoting Heck, 512 U.S. at 503 (Souter, J.
concurring in judgment)). In a dissenting opinion, Justice
Stevens noted that, "[g]iven the Court's holding that petitioner
does not have a remedy under the habeas statute, it is perfectly clear, as
Justice SOUTER explains, that he may bring an action under
42 U.S.C. § 1983." Spencer, 523 U.S. at 25 n. 8 (Stevens, J.,
That a majority of the Supreme Court justices have stated
positions limiting the reach of Heck and allowing Section 1983
actions by former prisoners who are no longer in custody, has
been acknowledged by the Second Circuit and district courts
within this Circuit. E.g., Huang v. Johnson, 251 F.3d 65,
74-75 (2d Cir. 2001) (Heck does not bar Section 1983 actions
for damages by mother of youthful offender who had been released
from custody); Jenkins v. Haubert, 179 F.3d 19, 21 (2d Cir.
1999) ("Heck and Edwards do not bar a § 1983 claim
challenging the conditions of a prisoner's confinement where the
prisoner is unable to challenge the conditions through a petition
for federal habeas corpus"); Hernandez v. Wells, 2003 WL
22771982 (S.D.N.Y. 2003); Davis v. Cotov, 214 F.Supp.2d 310,
316 (E.D.N.Y. 2002); Dallas v. Goldberg, 2002 WL 1013291, *10
(S.D.N.Y. 2002) (modifying prior decision in view of Huang, and
finding that Heck does not bar Plaintiff's Section 1983 action,
brought after incarceration for parole revocation, for damages
relating to incarceration after revocation of parole). In this case, because Plaintiff is no longer in custody, habeas
relief is not available; accordingly, Plaintiff's Section 1983
claim is not barred by the favorable termination requirement
announced in Heck.
C. Personal Involvement
In general, defendants may only be held liable for damages
under Section 1983 when they have been personally involved in the
alleged constitutional deprivations. Williams v. Smith,
781 F.2d 319, 323 (2d Cir. 1986). "It is well settled in this Circuit
that `personal involvement of defendants in alleged
constitutional deprivations is a prerequisite to an award of
damages under § 1983.'" Wright v. Smith, 21 F.3d 496, 501 (2d
Cir. 1994) (quoting Moffitt v. Town of Brookfield,
950 F.2d 880, 886 (2d Cir. 1991)).
Plaintiff alleges Parole Officer Burke violated his rights by
imposing the Special Condition. Plaintiff alleges the Special
Condition was imposed by Parole Officer Roberto Martinez (not a
party in this proceeding) on October 18, 1994, and that when
Plaintiff's supervision was transferred from Officer Martinez to
Officer Burke, Burke told Plaintiff "that the special conditions
still applied and that he anticipated imposing more conditions."
(Jt. 56.1 ¶ 8, 9, 14, 15, 80.) Burke contends he "continued" the
Special Condition, which he alleges was imposed on October 17, 1994. (Jt. 56.1 ¶ 53-54.) Neither Burke's characterization of his
action as "continuing" the Special Condition nor Plaintiff's
characterization of the same act as "imposing" the Special
Condition is determinative of the issue.
The Special Condition at issue does not appear in the
Conditions of Release imposed by the Parole Board on October 17,
1994. (Conditions of Release 10/17/04, Farrell Dep. Ex.B.) It
first appears in a document entitled "Conditions of Release to
Parole Supervision," which was signed by Plaintiff and Parole
Officer Parris (who is not a party to this litigation) and dated
October 18, 1994 one day after Plaintiff's release.*fn2
(Certificate of Release 10/18/04, Def's Decl. in Opp. to S.J.
Ex.A.) A second Certificate of Release, dated March 28, 1995 and
signed by Plaintiff and Parole Officer Martinez, imposed the same
conditions including the Special Condition, with the notation
that "These rules conditions [sic] are to replace previous
written agreement of 10/18/94." (Certificate of Release 3/29/95,
Def's Decl. in Opp. to S.J. Ex.A.) It is undisputed that
Plaintiff was transferred to the Manhattan VI Special Offenders
Unit and placed under the Supervision of Officer Burke. (Jt.
Stmt. ¶ 14.) At the preliminary parole revocation hearing, Burke said that
conditions of release imposed by a Parole Officer "don't have to
be reviewed by a supervisor . . . I can impose a condition on a
parolee without going to my supervisor with it." (Tr. of
Preliminary Parole Revocation Hearing, found at Def's Decl. in
Opp. to S.J. Ex. F, hereinafter "Prel. Rev. Hrg.," at 22.) Later
at the same hearing, Burke stated, "[a]s the parole officer I
have the discretion to impose other conditions if I deem it
necessary . . ." (Id. at 23.) At the Final Parole Revocation
Hearing, Burke explained that supervision of Plaintiff was
transferred from another unit to Burke, that after he received
the case Burke met with Plaintiff and discussed with him the
March 28, 1995 Conditions of Release, and "expressed that this
document, all these conditions here, were intact and that he was
supposed to adhere to them and they were imposed on him and that
he was responsible for him and I hold him responsible for all
these conditions." (Tr. of Final Revocation Hearing 7/18/96,
found at Def.'s Decl. in Opp. Ex. J, hereinafter "Final Rev.
Hrg.," at 12-15.)
From the record, it is apparent that Officer Burke did not
impose the Special Condition on Plaintiff. The last Certificate
of Release signed by Plaintiff and listing the Special Condition
was dated March 28, 1995 well before the parties agree Burke began supervising Plaintiff's parole. At most, Parole Officer
Burke advised Plaintiff that the Conditions imposed by Parole
Officer Martinez were being continued; however, there is no
evidence that he altered the rules or conditions of parole. Since
he was not personally involved in imposing the Special Condition,
Burke cannot be liable for monetary damages under Section 1983
for imposition of the Special Condition. Wright v. Smith,
21 F.3d 496, 501 (2d Cir. 1994).
Moreover, because prospective injunctive relief is unavailable
as against the Defendants remaining in this case with regard to
the imposition of the Special Condition, to the extent this claim
is for injunctive relief, it is without a remedy. Accordingly,
Plaintiff's claim for monetary and injunctive relief against the
imposition of the Special Condition is dismissed.
D. Enforcement of the Special Condition
Plaintiff also challenges the enforcement of the Special
Condition as in violation of his Due Process Rights under the
1. Special Condition Evaluated "As-Applied"
Plaintiff argues that his claim is a "facial" challenge to the
vagueness of the Special Condition on Due Process grounds; that
is, he attacks the wording of the Special Condition and not its application to the particular facts of his case. (Pl. Mem. in
Supp. at 4.) However, it is well-established that a criminal
proscription is evaluated "as-applied," unless it abuts sensitive
First Amendment freedoms. United States v. Mazurie,
95 S.Ct. 710 (1975); Grayned v. City of Rockford, 92 S.Ct. 2294 (1972).
This Court has already found that, because Plaintiff is a paroled
sex offender, the First Amendment does not afford him an
unrestricted right to possess pornography, whether obscene or
not. Farrell v. Burke, 1998 WL 751695, *6 (S.D.N.Y. 1998).
Plaintiff argues that, under the plurality opinion in City of
Chicago v. Morales, 527 U.S. 41, 53, 119 S.Ct. 747, 768
(1982),*fn3 a facial challenge to a vague criminal statute
may proceed even outside the context of First Amendment concerns.
(Pl. Reply Mem. at 4.) However, since the Morales plurality's
approach has not been adopted by a majority of the Supreme Court,
the Second Circuit has declined to apply it. United States v.
Rybicki, 354 F.3d 124, 131 (2d Cir. 2003).*fn4 Since
Plaintiff's possession of pornography is not protected by the
First Amendment, prohibiting Plaintiff's ownership or possession
of pornography is not a criminal proscription that abuts
sensitive First Amendment freedoms. Accordingly, Plaintiff's
claims are evaluated "as-applied."
2. Constitutionality of Application of Special Condition
It is settled law that a special condition of parole violates
due process when it is so vague that a person of common
understanding cannot know what actions are forbidden. Birzon v.
King, 469 F.2d 1241, 1243 (2d Cir. 1972) (condition of parole
that prevented plaintiff from associating with "persons who have a
criminal record" and "persons engaged in criminal activity"
adequately phrased to give parolee notice that conduct of which
he was charged was proscribed, and was therefore not
unconstitutionally vague); LoFranco v. United States Parole
Comm'n, 986 F.Supp 796, 808 (S.D.N.Y. 1997) ("A special
condition of parole that is so vague that a person of common
knowledge must guess at its meaning will be struck down as void
for vagueness"); see also United States v. Simmons,
343 F.3d 72, 81 (2d Cir. 2003) ("Due process requires that the
conditions of supervised release be sufficiently clear to `give
the person of ordinary intelligence a reasonable opportunity to
know what is prohibited so that he may act accordingly'")
(quoting United States v. Cabot, 325 F.3d 384, 385 (2d Cir.
However, "if the general class of offenses to which a condition
of parole is directed is clearly within its terms, the condition
will not be struck down as vague, even though there may be some
questionable marginal cases." Lofranco v. United States Parole
Comm'n, 986 F.Supp 796, 809 (S.D.N.Y. 1997); see also United
States v. Harriss, 347 U.S. 612, 618 (1954). Moreover, as
stated, the Special Condition is evaluated as applied to the
particular facts of Plaintiff's case. United States v. Rybicki,
354 F.3d 124, 129 (2d Cir. 2003). Therefore, although courts have acknowledged that the "term
`pornography,' unmoored from any particular statute, has never
received a precise legal definition from the Supreme Court or any
other federal court of appeals," United States v. Loy,
237 F.3d 251, 263 (3d Cir. 2001), that "the lack of clarity in the term is
undeniable in the unregulated sphere of cultural debate," United
States v. Cabot, 325 F.3d 384, 385 (2d Cir. 2003), and that
"[f]or purposes of evaluating artistic or cultural merit . . .
determining whether material deserves the label of pornography is
a subjective, standardless process, heavily influenced by the
individual, social and cultural experience of the person making
the determination," United States v. Simmons, 343 F.3d 72, 81
(2d Cir. 2003), nonetheless, this Court is constrained to
consider only "whether the specific conduct at issue in this case
falls with sufficient clarity within the ambit of the Special
Condition." Perez v. Hoblock, 368 F.3d 166, 175 (2d Cir. 2004).
After conducting Plaintiff's final parole revocation hearing,
the ALJ issued a written opinion, and stated her findings:
I find that the charge has been proven by the
preponderance of the evidence. Both parties admit
that there was a special condition which prohibited
the from [sic] possessing pornographic material. The
parolee was aware of the condition and he possessed
the book and pamplet [sic]. The parolee however
testified that what was considered pornographic was
never explained to him and he did not consider those materials
pornographic. He further testified that he understood
pornographic material to mean material whose sole
purpose is to pander to sexual desires. In light of
the parolee's underlying offense and the contents of
the material I do not find the parolee's testimony
credible. While "My Comrade" may be considered a
satirical magazine depicting the gay lifestyle the
same cannot be said of "Scum." The book contains
numerous pictures, frontal male nudity, erect penises
and males fondling their genitals. The stories in the
book mainly describe explicit sexual encounters
between males. Most disturbing is the numerous
stories which describe sexual encounters involving
underage males. I find that the parolee whose
underlying offense involved sexual activity with
underage males was aware that materials containing
such descriptions were pornographic and prohibited. I
therefore find that the parolee violated his parole.
(Def. Decl. in Supp. of Opp. to SJ, Ex C at 4-6.)
Defendants argue that the ALJ's findings with regard to
Plaintiff's knowledge that his conduct violated the Special
Condition of parole are entitled to preclusive effect in this
case. Of course, if accorded preclusive effect by this Court in
this case, the ALJ's finding that Plaintiff knew possession of
Scum was prohibited by the Special Condition would conclusively
establish that Plaintiff had notice that his conduct was
prohibited by the Special Condition.
Collateral estoppel is grounded in notions of fairness, and
should not be rigidly or mechanically applied. In re Sokol,
113 F.3d 303, 306 (2d Cir. 1997) (citing D'Arata v. New York Cent.
Mut. Fire Ins. Co., 76 N.Y.2d 659, 664, 563 N.Y.S.2d 24, 26, 564 N.E.2d 634 (1990)). "Recognizing that the doctrine places
termination of litigation ahead of the correct result, the
application of collateral estoppel has been narrowly tailored to
ensure that it applies only where the circumstances indicate the
issue estopped from further consideration was thoroughly explored
in the prior proceeding, and that the resulting judgment thus has
some indicia of correctness." Johnson v. Watkins, 101 F.3d 792,
795 (2d Cir. 1996).
When a state administrative body acting in a judicial capacity
makes factual findings, federal courts "should not hesitate" to
accord the agency's determinations the same preclusive effect as
would a state court. University of Tennessee v. Elliot,
478 U.S. 788, 797-98 (1986). Federal courts are required "to give
preclusive effect to state-court judgments whenever the courts of
the State from which the judgments emerged would do so." Allen
v. McCurry, 449 U.S. 90, 96, 101 S.Ct. 411, 415 (1980)
(discussing collateral estoppel effect of prior state court
judgments, and finding that, in enacting section 1983, Congress
did not intend to override the traditional doctrine of
preclusion). New York law provides that, in making parole
revocation determinations, the Parole Board performs a judicial
function, which is not reviewable if done in accordance with law. N.Y.Exec. Law § 259-i(5); People ex rel. VanFossen v. Dillon,
72 A.D.2d 166, 168 (4th Dep't 1980).
Under New York law, the doctrine of issue preclusion only
applies if (1) the identical issue was necessarily decided in the
prior action and would decide the current action, and (2) the
party to be estopped had a full and fair opportunity to contest
the earlier decision. Kosakow v. New Rochelle Radiology Assocs.,
P.C., 274 F.3d 706, 730 (2d Cir. 2001) (citing Schwartz v. Pub.
Adm'r of Bronx County, 24 N.Y.2d 65, 71, 298 N.Y.S.2d 955, 960,
246 N.E.2d 725 (1969)). The party alleging that the issue was
decided in the prior proceeding "bears the burden of showing that
the identical issue was previously decided," while the party
opposing preclusion bears the burden of showing the absence of a
full and fair opportunity to litigate the issue. Colon v.
Coughlin, 58 F.3d 865, 869 (2d Cir. 1995).
The ALJ's conclusion that Plaintiff knew possession of Scum
violated the Special Condition was necessary to her findings.
Plaintiff conceded that the Special Condition was imposed and
that he possessed the materials in question. It was clear that
part of Plaintiff's defense was that he was unable to understand
or comply with the Special Condition because it was allegedly
vague. Plaintiff's lawyer cross-examined Defendant Burke on
whether he had discussed the Special Condition with Plaintiff and whether Burke had explained to Plaintiff what conduct would be
encompassed by the Special Condition. (Final Rev. Hrg 7/22/96 at
25.) Plaintiff's counsel also cross-examined Burke on what
conduct would fall within the Special Condition's proscriptions.
(Final Rev. Hrg 7/22/96 at 29.) On direct examination,
Plaintiff's lawyer questioned Plaintiff about what Plaintiff
understood the Special Condition to mean, (Final Rev. Hrg 7/22/96
at 35), whether Plaintiff believed that purchasing the book
Scum would violate the Special Condition, (Final Rev. Hrg
7/22/96 at 34), and how Plaintiff thought the Publications
related to the Special Condition, (Final Rev. Hrg 7/22/96 at 35).
After presentation of evidence, in his arguments before the ALJ,
Plaintiff's counsel argued "Pornography is, in fact, it is
inherently vague. We don't know what the Division of Parole might
we don't know what the special condition really meant." (Final
Rev. Hrg 7/22/96 at 47.) Had the ALJ accepted Plaintiff's
argument that the meaning of the Special Condition was so unclear
he could not have known whether the materials he possessed
violated the Special Condition, the ALJ would not have been able
to find Plaintiff violated the Special Condition. Thus, the ALJ's
rejection of Plaintiff's argument, based on her finding that
Plaintiff knew that Scum was pornographic and that he was prohibited from possessing it, was necessary to her finding that
he violated the Special Condition.
The ALJ's finding that Plaintiff knew possession of Scum
violated the Special Condition is also determinative of the
action before this Court, since this finding eviscerates any
claim that Plaintiff was not put on notice that the materials he
admitted possessing violated the Special Condition.
A review of the Parole Revocation proceedings as required under
New York law shows that whether Plaintiff knew possession of
Scum would violate the Special Condition was also fully and
fairly litigated. Under New York law, "[a] comprehensive list of
the various factors which should enter into a determination
whether a party has had his day in court would include such
considerations as the size of the claim, the forum of the prior
litigation, the use of initiative, the extent of the litigation,
the competence and experience of counsel, the availability of new
evidence, indications of a compromise verdict, differences in the
applicable law and foreseeability of future litigation."
Schwartz v. Pub. Adm'r of Bronx County, 24 N.Y.2d 65, 72,
298 N.Y.S.2d 955, 961 (1969). Plaintiff's liberty was at stake in the
final parole revocation hearing; thus, it cannot be said that the
hearing was not a proceeding with sufficient gravity to be
accorded preclusive effect by this Court. The final revocation hearing took place before an administrative law judge, and while
rules of evidence applicable in civil trials before this Court
were not applied,*fn5 nonetheless, the proceeding was
adversarial. Plaintiff was represented by competent and
experienced counsel, and was provided ample opportunity to
present evidence, make argument, and cross-examine the witnesses
against him. On direct examination Plaintiff responded to
questions from his attorney regarding what he thought the Special
Condition meant. (Def. Aff. in Supp. of Opp. to S.J., Ex. J. at
35.) He testified why he thought Scum was not pornographic.
(Id.) On cross-examination, Plaintiff responded to further
questions regarding why the text and pictures contained in Scum
did not fit into his definition of pornography. (Id. at 37.)
Plaintiff responded to questions from the ALJ regarding whether
Scum contained references to sexual activity with a minor.
(Id. at 42.) Plaintiff also responded to questions from the ALJ
regarding whether the stories in Scum discussed relationships
or sexual activities between individuals. (Id. at 43.) The ALJ
then heard arguments from the attorneys; Plaintiff's attorney
argued that Plaintiff did not know what the Special Condition
meant. (Id. at 48.) Additionally, New York law provided
Plaintiff with an opportunity to appeal the determination of the ALJ, see N.Y.
Exec. L. 259-i(4), et seq., and the face of the ALJ's opinion
made Plaintiff aware of this right. (Def. Decl. in Supp. of Opp.
to SJ, Ex C) (stating "NOTICE: YOU HAVE THE RIGHT TO APPEAL THIS
The remaining factors set forth in Schwartz are of little
assistance to Plaintiff. This Court has not been provided with
new evidence that would undermine the ALJ's determination. There
is absolutely no indication that the ALJ's opinion was based on a
settlement or compromise between the parties. The law applicable
to the legal issue raised by Plaintiff at the final revocation
hearing, namely vagueness and lack of notice, is central to the
Fourteenth Amendment question brought before this Court. Finally,
since Plaintiff had a clear right to appeal direct and to
challenge collaterally the ALJ's ruling, future litigation even
the current lawsuit was foreseeable to both the ALJ and the
parties. Accordingly, the ALJ's finding that Plaintiff was aware
that Scum was pornographic, and that its possession was
prohibited by the Special Condition, is accorded preclusive
effect in this proceeding.
A court may grant summary judgment sua sponte when it is
clear that a case does not present an issue of material fact.
Project Release v. Prevost, 722 F.2d 960 (2d Cir. 1983); FLLI Moretti Cereali v. Continental Grain Co., 563 F.2d 563, 565 (2d
Cir. 1977); Lowenschuss v. Kane, 520 F.2d 255, 261 (2d Cir.
1975); see also Sunderlin v. First Reliance Standard Life Ins.
Co., 235 F.Supp.2d 222, 226 (W.D.N.Y. 2002) ("[I]t is well
settled that summary judgment may be rendered in favor of the
opposing party even though he has made no formal cross-motion
under Rule 56."); Dempsey v. Town of Brighton,
749 F.Supp. 1215, 1220 (W.D.N.Y. 1990) (summary judgment in favor of the
non-moving party appropriate where undisputed facts found that,
when applied to the law, indicate judgment against moving party
is appropriate), affirmed sub. nom Curenton v. Town of
Brighton, 940 F.2d 648 (2d Cir. 1991), cert denied,
502 U.S. 925, 112 S.Ct. 338, 116 L.Ed.2d 278 (1991). Because this Court
defers to the ALJ's finding that Plaintiff actually knew Scum
was pornographic and possession of the book violated the Special
Condition, there is no genuine issue of material fact regarding
whether Plaintiff had sufficient notice that the materials he
possessed violated the Special Condition.
Accordingly, there being no remaining genuine issue of material
fact, and because Plaintiff's claim that Defendants' enforcement
of the Special Condition violated his right to due process under
the Fourteenth Amendment fails as a matter of law, his claim is
DISMISSED. III. Conclusion
For the forgoing reasons, the court Hereby DENIES Plaintiff's
motion for Summary Judgment on liability alone, and GRANTS
Summary Judgment for Defendants. The Clerk of Courts SHALL close
the record of this Case.