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Peterson v. Tomaselli

January 16, 2007


The opinion of the court was delivered by: Richard J. Holwell United States District Judge


Plaintiff Alvin Peterson brings suit under 42 U.S.C. § 1983 against former Assistant District Attorney Alan Tomaselli ("Tomaselli"), the City of New York, the Commissioner of the New York City Department of Corrections ("Commissioner"), and other unnamed defendants (collectively "defendants"). Plaintiff alleges defendants violated his rights under the Fourth, Eighth, and Fourteenth Amendments through actions resulting in his incarceration in a state penitentiary lasting eight-and-a-half months longer than legally prescribed. Plaintiff separately asserts that Tomaselli and the City of New York violated New York Judiciary Law § 487 (McKinney 2005). Defendants move for summary judgment under Rule 56 of the Federal Rules of Civil Procedure against plaintiff's complaint in its entirety. For the reasons stated below, defendants' motion [58] is granted.


The following facts are derived from defendants' Rule 56.1 Statement of Facts,*fn1 plaintiff's amended complaint and affirmation, as well as three preceding opinions decided by Judge Robert R. Patterson, Peterson v. Lacy, No. 97 Civ. 7795 (RPP) (KNF), 1998 U.S. Dist. LEXIS 19599, 1998 WL 883302 (S.D.N.Y. Dec. 17, 1998) ("Peterson I"), Judge Denny Chin, Peterson v. Tomaselli, No. 02 Civ. 6325 (DC), 2003 U.S. Dist. LEXIS 17006, 2003 WL 22213125 (S.D.N.Y. Sept. 29, 2003) ("Peterson II"), and this Court, Peterson v. Tomaselli, No. 02 Civ. 6325 (RJH), 2004 U.S. Dist. LEXIS 19765, 2004 WL 2211651 (S.D.N.Y. Sept. 30, 2004) ("Peterson III"). Because the facts are complicated, and have been previously set forth only when this proceeding was at the motion to dismiss stage, this Court will endeavor to lay them out again in chronological order. The facts are undisputed except where indicated.

On August 7, 1993, plaintiff was arrested and charged with criminal sale and possession of a controlled substance in the third degree by the Office of the Special Narcotics Prosecutor ("OSNP"). (Am. Compl. ¶ A.) Peterson was then on federal parole for a separate offense, and this criminal activity violated the terms of his parole. Peterson II, 2003 WL 22213125, at *1.On April 4, 1994, plaintiff plead guilty to the state charge with the understanding that he would be sentenced to three-and-a-half to seven years to run concurrently with the federal sentence he would serve upon revocation of parole. (Am. Compl. ¶ A.) Procedurally, it was contemplated that plaintiff would be transferred to federal custody to be sentenced for parole violation and then returned to state custody to permit the imposition of the concurrent state sentence.

As of June 28, 1994, prosecutors had still not determined the proper procedural steps thought necessary to give effect to the plea agreement. Peterson III, 2004 WL 2211651, at *1.On that date, plaintiff moved to withdraw his plea. (Smith Decl. Ex. B ¶ 9.) Justice Felice K. Shea of the New York Supreme Court denied the motion and sentenced plaintiff to three-and-a-half to seven years, to run concurrently with the federal sentence to be imposed for his parole violation. (Id. ¶ 10.) Justice Shea ordered plaintiff to be paroled to federal custody so that he could be sentenced for his parole violation. (Id.) Thus began what Judge Patterson referred to as a "Kafkaesque comedy of errors." Peterson I, 1998 WL 883302, at *1.In disregard of Justice Shea's order and subsequent orders on July 12 and 21, 1994, the New York City Department of Corrections ("NYC DOC") failed to turn plaintiff over to federal authorities for sentencing. Id. On July 19, 1994, plaintiff was instead transferred by NYC DOC to the New York State Department of Correctional Services ("NYS DOCS") to begin serving his state sentence without having been sentenced for his federal parole violations. (Smith Decl. Ex. B ¶ 12.) Plaintiff alleges that prior to being sent to state prison, he attempted to have his "dorm officer" inform "State screening officials" that he was to be taken into federal custody. The unidentified officials allegedly told the "dorm officer" that plaintiff "doesn't have a concurrent sentence, . . . he's going upstate." (Id. ¶ 10.)

On September 2, 1994, plaintiff moved the New York Supreme Court for an order vacating his sentence on the grounds that the concurrent sentencing provided for in the plea agreement had not been effected and that he would in fact be serving consecutive sentences. (Fischer Aff. Ex. A.) In an affirmation submitted on September 14, 1994, Peterson's counsel advised the Court that, based on his discussions with NYC DOCS, the proper procedure to effect the plea agreement was (1) to vacate the existing state sentence, (2) to release Peterson to federal custody, and (3) after completion of his federal sentence, to return him to state court to receive a concurrent sentence. (Id., Ex. B at 3.) On October 24, 1994, Justice Shea granted the unopposed motion, vacated plaintiff's sentence, and directed that defendant be released to federal custody. (Smith Decl. Ex. E.) The October 24 order further directed NYC DOC to file a detainer with the federal authorities so that plaintiff could be returned to state court and resentenced, concurrently, as soon as he had been sentenced for his parole violation. This was somewhat different than the procedure proposed by Peterson's counsel who requested that Peterson not be resentenced until after he completed his federal sentence.

Plaintiff was in fact released to federal custody at the Federal Correctional Institution in Ray Brook in New Jersey on January 4, 1995. (Smith Decl. Ex. B ¶ 17.) On January 6, 1995, Peterson's counsel and Assistant District Attorney ("ADA") Frederica Miller entered into a stipulation confirming that, following his federal parole violation hearing, he would be returned to state court for imposition of a concurrent three-and-a-half year sentence. (Fischer Aff. Ex. E.) In August 1995, plaintiff's federal parole was revoked by the Board of Parole Examiners for violation of its terms and he was ordered to serve the remaining term of incarceration under his prior sentence at the Federal Correctional Institution in Fairton ("FCI Fairton"). Peterson I, 1998 WL 883302, at *2.Thereafter, plaintiff notified his attorney that he had been sentenced for his federal parole violation and asked to be produced in state court for sentencing in accordance with his plea agreement. (Smith Decl. Ex. B ¶ 18.) On October 10, 1995, ADA Miller lodged a detainer with the Federal Bureau of Prisons requesting plaintiff be returned to state custody for sentencing after he completed his federal sentence. (Pet. Ex. 3.) This letter was inconsistent with Justice Shea's October 24, 1994 order as well as the January 6, 1995 stipulation, pursuant to which plaintiff was to be returned to state custody for sentencing after the federal parole hearing. He was not transferred.

On November 15, 1995, plaintiff requested final disposition of his state charge under the Interstate Agreement on Detainers ("IAD"), apparently in order to have himself returned to state court for sentencing. Peterson I, 1998 WL 883302, at *2. The IAD requires states to hold a trial within 180 days on any untried indictments, complaints, or information for which a detainer was lodged. Id. at *2 n.5. Plaintiff alleges that on March 21, 1996, the Federal Bureau of Prisons notified state authorities that no action had been taken to seek plaintiff's appearance in state court as mandated by the IAD and that the 180-day time limit would expire on May 17, 1996. (Petition, Ex. 4.) After 180 days had elapsed, plaintiff moved, in June 1996, to dismiss his state charge, claiming that because the state failed to satisfy the requirements of the IAD, his state statutory right to a speedy trial had been violated. Peterson I, 1998 WL 883302, at *3.

On July 1, 1996, Olga Sakelos, an Extradition Specialist at the OSNP, advised FCI Fairton that the OSNP was lifting all detainers against Peterson and would not extradite him. (Smith Decl. Ex L.) Plaintiff alleges that this letter was sent in response to the earlier letter from the Federal Bureau of Prisons concerning the IAD. (Smith Decl. Ex. B ¶ 23.) Plaintiff further alleges that this letter was sent at the behest of Tomaselli, an assistant district attorney, Bronx County and a division chief at the OSNP, but has produced no evidence to support his allegation. (Id.) Tomaselli's name appears nowhere on the letter (Smith Decl. Ex L.), nor was he part of the OSNP's extradition unit. (Tomaselli Dep. 9:24--10:1).

On August 16, 1996, defendant Tomaselli appeared in the ongoing state action and filed papers in opposition to Peterson's June 1996 motion to dismiss his state charge. (Smith Decl. Ex. F.) On August 21, 1996, Tomaselli submitted an affirmation to state court requesting issuance of an order directing the Federal Bureau of Prisons to turn plaintiff over to state custody so that he could be sentenced. (Jakabovics Decl. Ex. C.) It is not clear precisely when Peterson was transferred to state custody, but he was present in court for a hearing on October 4, 1996 on his motion to dismiss. (Smith Decl. Ex. K.) Justice Shea denied plaintiff's motion on the basis that the IAD applied only to untried indictments whereas Peterson had already plead guilty to an indictment. (Smith Decl. Ex. F at 5--6); Peterson I, 1998 WL 883302, at *3. However, in his reply papers, Peterson had raised a new claim that the delay in the imposition of his state sentence deprived him of his right to appeal and violated his due process and Eighth Amendment rights. Peterson I, 1998 WL 883302, at *3; (Smith Decl. Ex. K at 2--3.) Justice Shea directed the state to respond to these new arguments, and, on October 31, 1996, Tomaselli submitted supplemental opposition papers. (Jakabovics Decl. Ex. D.) In his affirmation, Tomaselli contended that dismissal was unwarranted since Peterson would suffer no prejudice from any sentencing delay since his eventual state sentence "will be running concurrent with his Federal sentence, on a nunc pro tunc basis." (Id.) Tomaselli noted that Peterson "has been in custody with the Court's assurance that he will be getting credit for this [federal] time when his state sentence is imposed." (Id.) Justice Shea denied plaintiff's motion on November 22, 1996, specifically noting that Peterson "will be getting credit for time served in Federal custody when his state sentence is imposed." Peterson I, 1998 WL 883302, at *3.

Prior to the November 22, 1996 hearing on Peterson's motion, Justice Shea had ordered that plaintiff be returned to federal custody. This was done at Peterson's request so that he could continue to receive treatment for an ongoing medical problem. (Smith Decl. Ex. K 3:19--4:2.) In compliance with the court's order, Tomaselli submitted an affirmation dated October 17, 1996 requesting the court to issue an order directing NYC DOC to release plaintiff to federal custody. (Smith Decl. Ex. I.) The affirmation stated that plaintiff was sentenced in state court to three-and-a-half to seven years. This statement was literally true but unfortunately did not reveal that this sentence had subsequently been vacated. Defendant Tomaselli has testified that although he signed the affirmation, he did not prepare it, and further that it was prepared by the office's extradition unit based on information of the unit's contemporaneous files. (56.1 Statement ¶¶ 20, 22.) The extradition unit's computerized files do not show that Peterson's 1994 sentence had been vacated. (Smith Decl. Ex. G.)

The record at this point becomes unclear. It appears that plaintiff became aware of Tomaselli's affirmation and informed the records coordinator at FCI Fairton that the statement concerning his sentence was false. He alleges that Tomaselli conspired with Eleanor Dunnigan, a NYS DOCS Inmates Records Coordinator, to have her forward "false documents" to FCI Fairton to support his affirmation. (Am. Compl. ¶ 28.) This apparently refers to the December 9, 1996 letter sent by Dunnigan to FCI Fairton stating that a certified copy of plaintiff's "concurrent New York State commitment" was enclosed and requesting that it be lodged as a detainer against plaintiff. (Smith Dec. Ex. J.) Tomaselli claims he has never spoken to Dunnigan. (Tomaselli Dep. 13:10--13.) On January 2, 1997, R.M. Booher, the Inmate Systems Manager at FCI Fairton, sent a letter to Tomaselli informing him that he had not "received a copy of the judgment the NYDOC referred to." (Jakabovics Decl. Ex. F.) Evidently, Dunnigan's letter had not enclosed a certified copy of plaintiff's judgment as stated. The Booher letter further stated that the extradition unit of OSNP had advised FCI Fairton that a bench warrant had been issued in the case. However, because Booher could not confirm plaintiff's state sentence or warrant, he removed the detainer against plaintiff awaiting receipt of a "certified copy of a pending warrant, information, complaint, or judgment." (Id.)

On January 6, 1997, Olga Sakelos sent another letter to FCI Fairton stating that she was faxing a detainer letter along with a certified copy of plaintiff's bench warrant. (Jakabovics Decl. Ex. G.) Sakelos's letter further stated that "[w]e are anxious to obtain the return of this defendant back to our jurisdiction for sentencing." Plaintiff alleges this letter was sent at the behest of Tomaselli. (Am. Compl. ¶ 3.) He also alleges that Tomaselli requested the aforementioned bench warrant and that it was issued for a violation of state parole, despite the fact that plaintiff was never on state parole. (Id.) However, plaintiff offers no evidence, nor does there appear to be any in the record, to support either of these allegations.

On January 29, 1997, plaintiff was released into state custody. (Smith Decl. Ex. B ¶ 32.) Several weeks later, he was finally sentenced in state court to a term of three-and-a-half to seven years to run concurrently with his federal sentence. Peterson I, 1998 WL 883302, at *3. Judgment was entered on February 28, 1997. Id. However, because plaintiff had already completed his federal sentence, it appears that the judgment and commitment papers should have stated that the state sentence was being imposed on a nunc pro tunc basis, or, in some other manner, explicitly stated that Peterson was to be credited by NYS DOCS for the twenty-four months of federal incarceration previously served. As noted, this was the express intention of Justice Shea stated at the hearing of November 22, 1996. According to plaintiff, he asked his counsel to explicitly request that Justice Shea impose sentence nunc pro tunc but that counsel did not believe it was necessary to do so. (Peterson Dep. at 58--60.)

NYS DOCS thereafter computed Peterson's automatic conditional release date to be May 7, 2000. Peterson I, 1998 WL 883302, at *5. Had he been given credit for his federal sentence as provided by the plea agreement and intended by the parties and the Court, his conditional release date would have been April 12, 1998. Subsequently, plaintiff filed a motion to have the state court revisit his sentence and vacate the judgment, and made a motion for leave to appeal to the Appellate division. Peterson I, 1998 WL 883302, at *3--*4. He restated his earlier claim based on the IAD and argued that the NYS DOCS incorrectly refused to credit the time he had already served in federal prison against the state sentence. On November 26, 1997, the court denied his motion, holding that his request that the NYS DOCS credit him for time served in federal prison "cannot be raised in the instant action." Id. at *4.*fn2

Plaintiff continued to seek dismissal of his indictment, credit for time served, or release from prison by filing an appeal with the Appellate Division upon being granted leave and filing a habeas petition in this court. On December 17, 1998, Judge Patterson granted plaintiff's habeas petition. See Peterson I, 1998 WL 883302. Judge Patterson ordered a writ of habeas corpus issue and that plaintiff be immediately released unless there was evidence that his conditional release date had been pushed back due to a loss of his good time credit. Id. at *10. Judge Patterson found that plaintiff's automatic conditional release date (with good time credit) was April 12, 1998. Id. at *5. He further found that the delay in sentencing of more than three-and-a-half years and a delay in appeal of almost two years deprived Peterson of "the conditional release which his agreed upon sentence would have afforded him eight months ago." Id. at *8.

Days before plaintiff's habeas petition was granted, plaintiff's new state counsel and ADA Tomaselli entered into a stipulation to correct the sentence imposed by Justice Shea to explicitly state that, consistent with the intent of the parties, the sentence was imposed nunc pro tunc as of plaintiff's first day in federal prison and that plaintiff would be credited with the time served under his federal sentence. (Letter of Ass't Att'y General Efrem Z. Fischer to Judge Patterson, December 21, 1998, Ex. C.) Pursuant to the stipulation, plaintiff was released from state prison on December 16, 1998. (Id., Ex. E.) At this point, however, plaintiff had been imprisoned by New York approximately eight months beyond the conditional release date that would have applied had NYS DOCS, at the time plaintiff was resentenced by Justice Shea in February 1997, properly credited plaintiff for federal time served.

Thereafter, plaintiff filed this § 1983 action in front of Judge Chin on August 8, 2002, seeking damages against Dunnigan and Tomaselli, and later moved to amend the complaint to add NYC DOC and OSNP. Peterson II, 2003 WL 22213125, at *1, *4. In his opinion, Judge Chin dismissed the claim as against Dunnigan and granted plaintiff leave to amend. Id. at *8--*9. The action was then transferred to this Court. Defendants moved to dismiss the complaint in its entirety and plaintiff cross-moved for leave to amend his complaint and for summary judgment as to some of the claims. Peterson III, 2004 WL 2211651, at *1. This Court granted defendants' motion to dismiss the claims against NYC DOC and OSNP on the grounds they were not suable entities, but allowed plaintiff to amend the complaint to add unidentified employees of those agencies and the Commissioner of the NYC DOC. Id. at *5, *8. Plaintiff was denied leave to add the City of New York as defendant without prejudice to his right to file a renewed motion to amend based on specific allegations sufficient to state a § 1983 claim against the City.

Id. at *11. Finally, plaintiff was denied leave to amend his complaint to add conspiracy claims against various defendants, again without prejudice to a renewed motion to amend based on proper factual allegations. Id. at *14. On May 17, 2005, plaintiff filed an amended complaint. In disregard of the Court's direction, plaintiff added the City of New York as a defendant without seeking leave to do so. (Am. Compl. ¶ 2.) After discovery was completed, defendants filed this motion for summary judgment on April 18, 2006.


Summary judgment is appropriate "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). The moving party bears the burden of demonstrating that no genuine issue exists as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323--25 (1986). In reviewing the record, the district court must assess the evidence in "the light most favorable to the non-moving party," resolve all ambiguities, and "draw all reasonable inferences" in its favor. Am. Cas. Co. v. Nordic Leasing, Inc., 42 F.3d 725, 728 (2d Cir. 1994); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

The moving party can satisfy its burden by showing that the opposing party is unable to establish an element essential to that party's case and on which that party would bear the burden of proof at trial. See Celotex, 477 U.S. at 321; Gallo v. Prudential Servs., 22 F.3d 1219, 1223--24 (2d Cir. 1994) (A "moving party may obtain summary judgment by showing that little or no evidence may be found in support of the nonmoving party's case."). Indeed, summary judgment is "mandated" when "the ...

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