The opinion of the court was delivered by: THOMAS GRIESA, Senior District Judge
Plaintiff alleges that he was arrested and imprisoned by his
parole officer, defendant George Mackey. The action is brought
under 42 U.S.C. § 1983 and alleges violations of various
Constitutional rights. Defendant moves to dismiss the complaint
pursuant to Fed.R. Civ. 12(b)(6) on the ground that he is
entitled to absolute immunity or, in the alternative, to
The following is a summary of the allegations of the complaint.
On July 21, 1997 plaintiff was declared delinquent with respect
to his parole release conditions for two reasons. First, he moved
from his approved residence without approval or notification to
his parole officer, defendant Mackey. Second, he failed to make his office report on
July 23, 1997, as directed by defendant.
In response to these two problems, defendant authorized a
parole warrant for plaintiff's arrest. However, plaintiff
voluntarily surrendered to defendant on August 7, 1997, during an
office report. Plaintiff was then handcuffed, seized, and taken
to the Bronx House of Detention, and detained.
A parole preliminary hearing was conducted on August 15, 1997,
in which the hearing officer ruled that plaintiff's arrest was
not based on probable cause. Plaintiff was released from custody
the same day.
The law regarding absolute immunity and qualified immunity is
well known. It may be that, when the facts are further developed,
they will demonstrate that defendant has immunity. However, the
court believes that the case should not be disposed of on the
present record. It is likely that there is more to the case than
what is revealed by plaintiff's complaint.
If defendant wishes to move for summary judgment, this can be
done. This will give defendant the opportunity to provide the
court with more facts, if defendant deems such facts relevant.
Defendant's motion to dismiss the complaint is denied with
leave to file a motion for summary judgment.