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Bratton v. New York State Division of Parole

April 14, 2008

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

Presently before the Court are motions for summary judgment by defendants Parole Officer Turner, P.O. Wijkowski, and P.O. Jones, employees of the New York State Division of Parole (Dkt. No. 102), and defendants Sgt. Herson, Sgt. Vallely,*fn1 and Officer Watkins, members of the Ithaca Police Department (Dkt. No. 104), in this civil rights action. This Court previously issued a Memorandum-Decision and Order (Dkt. No. 51) dismissing all claims against New York State Division of Parole and Ithaca Police Department, dismissing the claims against the individual defendants in their official capacities, and otherwise denying dismissal. Thus, the case has gone forward against the individual defendants in their individual capacities. For the reasons that follow, both summary judgment motions are granted in their entirety.

BACKGROUND

Amended Complaint

Plaintiff commenced this pro se action under 42 U.S.C. § 1983 while he was incarcerated in a New York State Correctional Facility after his parole was revoked as a result of the incident underlying this action.*fn2 According to the amended complaint (Dkt. No. 6), plaintiff had been released on parole on January 14, 2005. Defendant Wijkowski was his parole officer. On February 8, 2005, at around 9 p.m., Wijkowski and an unidentified male (defendant Jones, another parole officer) came to plaintiff's residence. Plaintiff admitted them. Once inside, Wijkowski said he wanted to obtain a urine sample from plaintiff to perform a drug test. The amended complaint states:

The plaintiff agreed to give the defendant a urine specimen for the test. However, the defendant then disclosed that he did not have a urine test kit, and the plaintiff asked him how did he intend to do a urine test without a test kit. The defendant ignored the plaintiff and turned and spoke with the person who accompanied him. Then he directed that person to stay and "watch" the plaintiff while he left.

The plaintiff stated that he did not know the defendant Wijkowski's companion and asked who was he. However, that person would not identify himself, nor did the defendant Wijkowski attempt to identify him. Consequently, the plaintiff stated that he did not want the unidentified person to remain in his room while the defendant Wijkowski left.

The defendant Wijkowski insisted that the defendant Jones stay in the plaintiff's room and "watch" him, and the defendant Jones ordered the plaintiff to get on his bed.

The plaintiff was uncomfortable with the defendants' instructions and appearance at his residence at night without a urine test kit claiming that they wanted to do a urine test. Consequently, when the defendant Jones refused to leave with the defendant Wijkowski, the plaintiff, who was in his underwear, got dressed and said that since it was not his curfew and the defendants did not have a test kit, the plaintiff was leaving and would be back before his curfew and the defendant Wijkowski could return when he has a test kit and obtain a specimen.

At or about the time that the plaintiff was getting dressed, or shortly afterwards, the defendant Wijkowski went into the hallway immediately outside the plaintiff's door and called the Ithaca Police on his cell phone. When he came back into the room he and the defendant Jones tackled the plaintiff, pushed him face down on the bed with his knees on the floor and handcuffed his hands behind his back and said plaintiff was under arrest. Soon after the defendants Wijkowski and Jones handcuffed the plaintiff, the defendants Herson, Watkins and several other Ithaca police officers arrived, and the defendant Watkins was holding a very large German

Shepherd. (Paragraph numbering omitted, footnotes omitted.) According to plaintiff, the handcuffs were so tight that when they were removed his wrists were swollen and bruised. Plaintiff further alleges that while plaintiff was kneeling by his bed, handcuffed, Watkins held the dog on a leash within one or two feet of plaintiff and permitted it to bark and lunge at him. Plaintiff was taken to a police car, and Wijkowski, Jones, Watkins, and Herson then used the dog to search plaintiff's room for drugs. As against defendant Vallely, also a member of Ithaca Police Department, plaintiff claims that Vallely received Wijkowski's telephone call to the police department and conspired with the others to send a drug dog to plaintiff's residence to search for evidence of a crime without a warrant or probable cause.

According to plaintiff, he had complied at all times with the conditions of his parole. He claims the individual defendants conspired to "violate" him on his parole and search his residence without a warrant or probable cause. Plaintiff, who had a lawsuit pending against Wijkowski at the time, Bratton v. Baker, 03-CV-1458 (N.D.N.Y., Hurd, D.J.), alleges that Wijkowski intensely disliked him and was likely to seek retaliation against him. Plaintiff also alleges that defendant Turner, who assigned Wijkowski to be plaintiff's parole officer, had reason to know these facts but was indifferent to the threat Wijkowski posed to plaintiff.

Briefly summarized, the causes of action in the amended complaint (Dkt. No. 6) are:

First, the conduct of Wijkowski and Jones in coming to plaintiff's residence to intimidate him in retaliation for plaintiff's legal action against Wijkowski violated plaintiff's rights.

Second, the conduct of Wijkowski, Jones, Watkins and Herson in bringing a drug dog to plaintiff's residence and using the dog to threaten and intimidate him violated his Fourth and fourteenth Amendment rights. Third,*fn3 the conduct of Wijkowski, Jones, Watkins and Herson in bringing the dog to plaintiff's residence and using it to search without a warrant or probable cause violated plaintiff's Fourth and Fourteenth Amendment rights.

Fourth ("fourth-I"),*fn4 the actions of defendants Wijkowski, Jones, Watkins and Herson in using excessive force in handcuffing plaintiff and causing him injury violated his Fourth and Fourteenth Amendment rights.

Fifth ("fifth-I"), the actions of Wijkowski, Jones, Watkins and Herson in using the regular processes of their agencies to violate plaintiff's rights was an abuse of process.

Sixth ("sixth-I"), the actions of defendants Wijkowski and Jones in pretending they wanted to visit plaintiff for a urine test when they actually intended to harass and arrest plaintiff without cause was an abuse of process.

Fourth ("fourth-II"), the conduct of Wijkowski and Jones in using their status as parole officers to enter and search plaintiff's room without a warrant or probable cause and in using a dog to search was an abuse of process and violated plaintiff's rights.

Fifth ("fifth-II"), the conduct of Wijkowski, Jones, Watkins and Herson in bringing the dog to plaintiff's residence and using it to search to retaliate against plaintiff for his legal action against Wijkowski violated plaintiff's rights.

Sixth ("sixth-II"), the conduct of Wijkowski, Jones, Watkins, Herson, and Vallely in conspiring to use their status as parole officers and police officers to enter and search plaintiff's room, to retaliate for his action against Wijkowski, and to use a dog to search was an abuse of process and violated plaintiff's rights.

Seventh, the conduct of Wijkowski and Jones in pretending they were there to obtain a urine sample and using their status as parole officers to enter and search plaintiff's room, harass him, and to use a dog to search was an abuse of process and violated plaintiff's rights.

Eighth, the conduct of Wijkowski, Jones, Watkins, Herson, and Vallely in conspiring to use their status as parole officers and police officers to enter and search plaintiff's room and to use a dog to search deprived plaintiff of equal protection.

Ninth, the conduct of Wijkowski, Jones, Watkins and Herson in conspiring to use their status as parole officers and police officers to enter and search plaintiff's room, to harass him, and to use a dog to search deprived plaintiff of equal protection.

Tenth, the conduct of Wijkowski, Jones, Watkins and Herson in conspiring to use a dog against the plaintiff violated plaintiff's right to equal protection.

Eleventh, the conduct of Wijkowski and Jones in using excessive force against plaintiff in handcuffing him and thereby injuring him violated his rights under the Fourth and Fourteenth Amendments.

Twelfth, the conduct of Watkins and Herson in failing to prevent Wijkowski and Jones from using excessive force against plaintiff in handcuffing him and thereby injuring him violated his rights under the Fourth and Fourteenth Amendments.

Thirteenth, Wijkowski's conduct in directing Jones to detain plaintiff without a warrant of arrest or probable cause violated plaintiff's First and Fourteenth Amendment rights.

Fourteenth, the conduct of Jones in blocking plaintiff's free movement without a warrant or probable cause violated the First and Fourteenth Amendments.

Fifteenth, Turner's conduct in assigning Wijkowski to supervise plaintiff , knowing of Wijkowski's malice towards plaintiff and the likelihood that he would retaliate deprived plaintiff of equal ...


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