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Bratton v. New York State Division of Parole

September 27, 2006

LARRY BRATTON, PLAINTIFF,
v.
NEW YORK STATE DIVISION OF PAROLE; P.O. TURNER; P.O. WIJKOWSKI; P.O. JONES; SGT. HERSON; SGT. VALLEY; OFFICER WATKINS; AND ITHACA POLICE DEPARTMENT, DEFENDANTS.



The opinion of the court was delivered by: Hon. Norman A. Mordue, Chief U.S. District Judge

MEMORANDUM-DECISION AND ORDER

INTRODUCTION

Defendants New York State Division of Parole, P.O. Turner, P.O. Wijkowski, and P.O. Jones move (Dkt. No. 24), pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, for judgment on the pleadings dismissing the claims against them. Defendants Sgt. Herson, Sgt. Valley, Officer Watkins, and the Ithaca Police Department move (Dkt. No. 44) for the same relief. For the reasons set forth herein, the Court grants the motions in part and denies them in part.

AMENDED COMPLAINT

In his amended complaint (Dkt. No. 6) in this action under 42 U.S.C. § 1983, plaintiff pro se claims that he is currently incarcerated in a New York State Correctional Facility as a result of a determination that he violated the conditions of his parole. The amended complaint asserts claims against the New York State Division of Parole and against Parole Officers Turner, Wijkowski, and Jones in their individual and official capacities. The amended complaint also asserts claims against the Ithaca Police Department and against Sgt. Herson, Sgt. Valley, and Officer Watkins in their individual and official capacities.

On January 14, 2005, plaintiff was released from prison on parole. Defendant Wijkowski was assigned as his parole officer. According to the amended complaint, at around 9 p.m. on February 8, 2005, Wijkowski and an unidentified male (who in fact was defendant Jones, another parole officer) came to plaintiff's residence. Plaintiff admitted them. Once inside, Wijkowski stated that he wanted to obtain a urine sample from plaintiff. Wijkowski did not, however, have a urine test sample kit with him. He said he was going to obtain a test sample kit, and instructed the unidentified man to watch plaintiff while he was gone. Plaintiff objected that he did not know who the unidentified man was. Plaintiff stated that he was going out and began to dress. Wijkowski went into the hall and telephoned the Ithaca Police Department. Wijkowski then returned to plaintiff's room, and he and Jones tackled and handcuffed plaintiff, telling him he was under arrest. Plaintiff claims that Wijkowski and Jones handcuffed him so tightly that when the handcuffs were removed his wrists were swollen and bruised.

The amended complaint further alleges that, while plaintiff was handcuffed and lying on his bed, defendants Herson and Watkins, both Ithaca Police Officers, arrived with a large dog on a leash. They brought the dog near plaintiff and permitted it to bark and lunge at him. Eventually, plaintiff was taken to a police car. Watkins, Wijkowski, Jones and Herson then used the dog to search plaintiff's room for drugs.

According to plaintiff, he had complied at all times with the conditions of his parole. He claims that the individual defendants conspired to "violate" him on his parole and to search his residence without a warrant or probable cause. He alleges that he had a lawsuit pending against Wijkowski at the time, Bratton v. Baker, 03-CV-1458 (N.D.N.Y., Hurd, D.J.); that Wijkowski intensely disliked him; that Wijkowski was likely to seek retaliation against him; and that defendants Turner and New York State Division of Parole had reason to know these facts but were indifferent to the threat Wijkowski posed to plaintiff. Plaintiff alleges a variety of constitutional violations and conspiracy pursuant to 42 U.S.C. §§ 1983, 1985 and 1986.

DISCUSSION

In deciding a motion to dismiss the complaint under Fed. R. Civ. P. 12(c), the Court applies the standard applicable to a Rule 12(b)(6) motion for failure to state a claim, Patel v. Contemporary Classics of Beverly Hills, 259 F.3d 123, 126 (2d Cir. 2001), that is, the Court accepts as true the factual allegations of the complaint and draws all inferences in favor of the plaintiff. See Mills v. Polar Molecular Corp., 12 F.3d 1170, 1174 (2d Cir. 1993). Dismissal is proper only if it appears beyond doubt that plaintiff can prove no set of facts which would entitle him to relief. See Valmonte v. Bane, 18 F.3d 992, 998 (2d Cir. 1994).

The New York State Division of Parole correctly argues (Dkt. No. 24) that it is entitled to dismissal on the ground that any claim against it is barred by the Eleventh Amendment, which bars a citizen from suing a state or one of its agencies or departments in federal court. See Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). Dismissal of all claims against New York State Division of Parole is granted. See Loving v. Harris, 2005 WL 1961420, *3 (E.D.N.Y. 2005). For the same reason, all claims against Parole Officers Turner, Wijkowski, and Jones in their official capacities are dismissed. See Hill v. Goord, 63 F.Supp.2d 254, 259 (E.D.N.Y. 1999).

The Ithaca Police Department argues (Dkt. No. 44) that plaintiff fails to plead any basis for holding it liable for the conduct of its police officers. It is well established that a municipal agency or department cannot be held liable under section 1983 for an injury inflicted solely by its employees or agents; rather, to support such liability a plaintiff must show that his injury resulted from the "execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy[.]" Monell v. Department of Social Servs., 436 U.S. 658, 694 (1978). Plaintiff makes no such allegation here, and his claims against the police department are dismissed. By the same token, his claims against the police officers in their official capacities are dismissed. See Patterson v. County of Oneida, 375 F.3d 206, 226 (2d Cir. 2004).

All defendants urge that plaintiff's claims are barred under Heck v. Humphrey, in which the Supreme Court held:

[I]n 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. 512 U.S. 477, 486-87 (1994). District courts have applied the Heck holding to section 1983 lawsuits based on the revocation of parole. See Loving, 2005 WL 1961420 at *2 (Heck bars section 1983 damage claim stemming from parole revocation where plaintiff claims that parole officers issued parole violation based on perjured testimony); Dallas v. Goldberg, 143 F.Supp.2d 312, 322 (S.D.N.Y. 2001) ("The Heck holding applies equally in the parole revocation context."); Davis v. Cotov, 214 F.Supp.2d 310, 316 (E.D.N.Y. 2002) (holding that Heck bars ...


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