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DiGioia v. Berry

February 28, 2007

JAMES M. DIGIOIA, PLAINTIFF,
v.
DANIEL BERRY DEFENDANT.



MEMORANDUM-DECISION AND ORDER

Plaintiff James DiGioia ("Plaintiff" or "DiGioia") commencedthe instant action against Defendant Daniel Berry ("Defendant" or "Berry") pursuant to 42 U.S.C. § 1983, arising out Berry's recommendation that Plaintiff be arrested and charged with a violation of the terms and conditions of his parole. Plaintiff alleges that the charges were not supported by probable cause and were instituted out of Berry's personal animus. Presently before the Court is Defendant's Motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. See Motion (Dkt. No. 35).*fn1

I. FACTS

In 1989, Plaintiff was convicted of Sodomy in the First Degree. The facts underlying the conviction arose out of Plaintiff's having given a woman a ride in his car. According to Plaintiff, he offered a woman a ride. When the woman accepted the ride, Plaintiff asked for oral sex. When the woman refused, Plaintiff asked whether she would prefer to give him oral sex or walk. The woman then performed oral sex on Plaintiff. Plaintiff was sentenced to a term of imprisonment of five to fifteen years and placed in the custody of the New York State Department of Corrections. In December 1995, Plaintiff was released to parole supervision. In July or August 1997, his parole was revoked. In or about November 1997, Plaintiff was again released to parole supervision.

In April or May 1998, Defendant became Plaintiff's parole officer. Part of the terms and conditions of Plaintiff's parole release was that he not be in the company of or fraternize with individuals he knew to have criminal records. Exceptions to this condition were made for accidental encounters in public places or encounters approved by the parole officer. Another condition of Plaintiff's parole was that he participate in a sex offender treatment program. As part of this treatment program, Plaintiff was required to execute a release for records and waiver of confidentiality that enabled the Division of Parole to obtain his treatment records to monitor his compliance with the program.

In August 2000, Plaintiff went to the Columbia County Department of Social Services for an intake assessment to see if they could appropriately treat him. At that time, Plaintiff did not execute a release permitting the Division of Parole to access the Columbia County Department of Social Services' records.

In August 2000, Amie Anderson was an inmate in the custody of the New York State Department of Correctional Services. Anderson was a participant in a work release program. A work release inmate is allowed to work outside the correctional facility in which she is incarcerated, but remains in the custody of that facility. Anderson was supervised by Joseph Carey. Anderson reported that she was approached by Plaintiff and that Plaintiff inquired whether she was an inmate or parolee. Anderson purportedly advised Plaintiff that she was on work release status. Anderson reported that she was again approached by Plaintiff in September 2000 and that Plaintiff repeatedly asked her if she wanted a ride or would like to go somewhere with him, such as a restaurant. Anderson rejected Plaintiff's invitations. One of these occasions, Carey observed Plaintiff speaking with Anderson.

Upon learning of the encounter between Plaintiff and Anderson, Defendant investigated. As part of the investigation, Defendant obtained a sworn statement from Anderson concerning her encounters with Plaintiff. The sworn statement reiterated that Plaintiff approached Anderson, inquired of her criminal history, and approached her at a later date to offer her a car ride and take her to a restaurant. Defendant reviewed the matter with his supervisors. A decision was made to charge Plaintiff with three violations of the conditions of his parole - one violation of the condition that he not be in the company of or fraternize with a person known to have a criminal record (Anderson); and two violations of the condition that he execute releases for records pertaining to his treatment in the sex offender program.

Based on the charges, a warrant was signed for Plaintiff's arrest. Plaintiff was arrested. A preliminary hearing was held on October 5, 2000, at which time Plaintiff was represented by counsel. At the conclusion of the hearing, the hearing officer concluded that probable cause existed to support the charges. As a result, Plaintiff was held for a final revocation hearing. The final revocation hearing was held on November 21, 2000. During this hearing, the two charges relating to the release of medical records were dismissed. The administrative law judge sustained the first charge concerning Plaintiff's being in the company of or fraternizing with a person known to have a criminal record. Plaintiff appealed the determination to the Division of Parole, which affirmed. Plaintiff ultimately filed an Article 78 proceeding challenging the determination of the Division of Parole. The Supreme Court, Appellate Division held that "the evidence established that [Plaintiff's] conduct was nothing more than an attempt to fraternize, which, in our view, does not rise to the level of association or fraternization proscribed by the regulation." DiGioia v. Travis, 745 N.Y.S.2d 117 (3d Dep't 2002). Consequently, the determination of the Division of Parole was annulled.

Plaintiff then commenced the instant action pursuant to 42 U.S.C. § 1983 claiming that his arrest was in violation of his Fourth and Fourteenth Amendment rights. Presently before the Court is Defendant's Motion for summary judgment, pursuant to Rule 56, seeking dismissal of the Complaint in its entirety.

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 56 provides that summary judgment is proper when "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); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In applying the standard, courts must "'resolve all ambiguities, and credit all factual inferences that could rationally be drawn, in favor of the party opposing summary judgment.'" Brown v. Henderson, 257 F.3d 246, 251 (2d Cir. 2001) (quoting Cifra v. Gen. Elec. Co., 252 F.3d 205, 216 (2d Cir. 2001)). Once the moving party meets its initial burden by demonstrating that no material fact exists for trial, the non-movant "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (citations omitted). Rather, the non-movant "must come forth with evidence sufficient to allow a reasonable jury to find in her favor." Brown, 257 F.3d at 252 (citation omitted). Bald assertions or conjecture unsupported by evidence are insufficient to overcome a motion for summary judgment. Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991); W. World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990).

III. DISCUSSION

A. Fourth Amendment

Plaintiff alleges that the parole violation charges were instituted without probable cause and, therefore, he was arrested in violation of his Fourth Amendment rights. As an initial matter, the parties dispute whether Defendant had to have probable cause, or merely satisfactory evidence, of a parole violation before recommending that a warrant be issued and that revocation proceedings be commenced. Although there is merit to Defendant's argument, see United States v. Polito, 583 F.2d 48 (2d Cir. 1978); United States v. Basso, 632 F.2d 1007, 1013 (2d Cir. 1980) ("We further observed that the probable cause necessary to make a warrant valid in parole cases could be established merely by a presentation of 'satisfactory evidence' that a person had violated the conditions of his release, a standard looser than that required to satisfy the probable cause requirements for a criminal warrant."), in Scotto v. Almenas, 143 F.3d 105, 113 (2d Cir. 1998), the Second Circuit stated that an arrest by a parole officer made without probable cause "would plainly violate [the parolee's] clearly established right to be free from arrest in the absence of probable cause." In Scotto, the Second Circuit made no distinction between the probable cause necessary for a ...


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