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GAMS v. WESTCHESTER COUNTY DEPARTMENT OF PROBATION

November 1, 2005.

AARON GAMS, Plaintiff,
v.
WESTCHESTER COUNTY DEPARTMENT OF PROBATION, et al., Defendants.



The opinion of the court was delivered by: LEWIS KAPLAN, District Judge

MEMORANDUM OPINION

This matter is before the Court in a most unusual circumstance. Plaintiff claims that the Westchester County District Attorney's office has threatened him with criminal prosecution if he or his court-appointed counsel should attempt to serve process on plaintiff's former wife, Jianping Wang, one of the defendants in this action and a person whom the pro se complaint*fn1 describes as a "high-ranking Westchester County administrator conjoined within the Westchester County political apparatus."*fn2 He seeks an order directing that service be made upon Ms. Wang.

  Facts

  A. The Initial Stages of this Action

  At the time the complaint was filed, plaintiff was an inmate at New York's Oneida Correctional Facility ("OCF"), where he was serving a sentence of 1½ to 4½ years for forgery and endangering the welfare of a minor. The gist of the complaint is that his former wife had caused Judie Skelton, a Westchester County probation officer, to include in the presentence report with respect to the forgery and endangerment conviction, with knowledge that the information was false, baseless accusations by Wang that plaintiff had sexually abused his then stepdaughter. This allegedly resulted in plaintiff's treatment by the Department of Correctional Services as a sex offender, an initial denial of parole, and other unfavorable treatment while in prison. The complaint, which is brought under 42 U.S.C. §§ 1983 and 1985(3), asserts violations of the Due Process and Equal Protection Clauses of the Fourteenth Amendment and seeks, among other things, a declaration that Skelton's actions were unlawful and an order requiring correction of the presentence report. It names as defendants Ms. Wang, the Westchester County Department of Probation, Ms. Skelton, the Town of Bedford, and Town of Bedford police officer Matthew DeBiase.

  Soon after the complaint was filed, plaintiff moved for a temporary restraining order and a preliminary injunction. That application expanded on the foregoing allegations.

  Plaintiff there asserted that he was released from OCF in March despite Wang's efforts to block his release. On April 15, 2005, he telephoned Wang's attorney in an effort to determine whether the attorney would accept service of process in this action on behalf of Wang. Upon being advised of this inquiry, Wang allegedly contacted a Westchester assistant district attorney. The district attorney's office then allegedly charged or caused plaintiff to be charged with aggravated harassment 2nd degree (N.Y. Penal L. § 240.30) and criminal contempt 2d degree (id. § 215.50), both misdemeanors, in the Justice Court of the Village of Mount Kisco on the theory that his call to Wang's attorney constituted harassment as well as a violation of an order of protection in favor of Wang.*fn3 Plaintiff was arrested on April 21, 2005 and was in the Westchester County jail awaiting trial on these charges.*fn4 But this was not the end of his story.

  Plaintiff claimed that the Westchester District Attorney's office sought $250,000 cash bail on these misdemeanor charges.*fn5 He claimed further that, on the day of his arrest, a Westchester County Department of Corrections sergeant told another officer in plaintiff's presence: "I just got off the horn with the D.A. This little fuck is not to be anywhere near a phone tonight, and he does not go from point A to point B without an escort." He then was classified a AAA security risk and placed in the so-called "old jail," which is used for violent felony offenders, gang members, escape risks, and discipline. At the time of the application, he apparently still was housed there, allegedly without justification.

  On the day following plaintiff's arrest, he claims to have spoken to a parole officer. The officer, he said, explained what had transpired in the District Attorney's office. The officer, who supposedly was "recollecting numerous statements made by the detectives," allegedly said: 1) "I think you have put yourself in a bad position — Jeanine Pirro is involved personally",*fn6 2) Don't fight the case in Mt. Kisco — whatever they offer you, just take it . . .", 3) "Jeanine Pirro will crush you into the pavement with her stiletto heels;" 4) "Those people [the West. Cty. DA Office] will send you back to state prison if you try to fight this thing;" 5) "Your ex-wife has a lot of juice, and she wants you sent away — you would have been better off calling her instead of her lawyer."*fn7

  On the following day, according to plaintiff, another individual, who identified himself only as a county employee, visited him at the jail. The visitor allegedly explained to plaintiff that he would not be sent back to state prison if he "behaved himself" and that if he was "thinking about a lawsuit naming your ex, forget about it — she should not exist for you."*fn8

  Subsequently, plaintiff claimed, his criminal attorney filed a motion in the Mount Kisco Justice Court to dismiss the charges.*fn9 Shortly thereafter, an assistant warden at the Westchester County jail allegedly told plaintiff's criminal lawyer that plaintiff's AAA status at the jail had been mandated by the District Attorney's office.*fn10 Later that day, after a call to the assistant district attorney from plaintiff's lawyer, plaintiff's classification was dropped to AA, which he claims is appropriate. But he remained in the old jail.

  The essence of plaintiff's grievance thus was clear. He claimed that he was arrested on trumped up charges by the District Attorney's office because his ex-wife, allegedly a high ranking county official, "has a lot of juice" and is well connected politically. The prosecution and the onerous conditions in which he was held, in his view, were designed to force him to drop this action against his former wife and others who allegedly were involved in the inaccurate presentence report that is said to have caused him trouble while he was in state prison on the forgery and endangerment charges.

  The Court denied the requested restraining order, essentially on the ground that the relief requested did not conform to the requirements of Rule 65(d) and out of concern that part of it might run afoul of Younger v. Harris*fn11 and its progeny.*fn12 Nevertheless, given plaintiff's lack of legal skills and his incarceration, it was evident that he could not effectively prosecute this action or seek whatever ...


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