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United States District Court, S.D. New York

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 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. 1998).

  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 489.

  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., dissenting).

  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 Fourteenth Amendment.

  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. 2003)).

  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 DECISION.")

  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.


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