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December 7, 2004.


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. 1988).

  "[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." Fed.R.Civ.P. 56(c).

  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 ...

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