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Peek v. Cummins

December 2, 2008


The opinion of the court was delivered by: Charles J. Siragusa United States District Judge



This is an action pursuant to 42 U.S.C. § 1983 in which Plaintiff alleges that Defendants violated his federal constitutional rights in connection with their involvement in his parole revocation proceedings. Now before the Court are a Motion to Dismiss [#7] by defendant Judith Cummins ("Cummins") and a Motion to Dismiss [#25] by Defendants Robin Filner ("Filner") and Sandra Griesemer ("Griesemer") and a motion for appointment of counsel [#37] by Plaintiff. For the reasons that follow, Plaintiff's application is denied, Defendants' applications are granted and this action is dismissed.


The following facts are taken from the Complaint in this action and from other documents which are part of the record of Plaintiff's parole revocation proceedings.*fn1 At all relevant times, Defendants were employees of the New York State Division of Parole. Cummins was an Administrative Law Judge, Filner was an Administrative Assistant responsible for processing requests for transcripts, and Griesmer was responsible for the actual preparation of transcripts. In or about November 2002 Plaintiff, a convicted felon who was serving an indeterminate prison sentence of two-to-six years, was released to parole supervision. On or about February 19, 2004, Plaintiff and his wife were involved in an argument during which Plaintiff was accused of damaging his wife's car. Plaintiff was charged with a misdemeanor and subsequently pled guilty to the charge, on the understanding that his plea would not result in a parole violation. Nevertheless, a parole violation was filed, although Plaintiff subsequently withdrew his guilty plea. Parole revocation proceedings were conducted in Rochester, New York, on March 18, 2004, April 1, 2004, April 8, 2004 and May 13, 2004, before defendant Cummins, in her capacity as an Administrative Law Judge. Plaintiff alleges that during those proceedings, Cummins denied him a preliminary hearing, improperly relied on his withdrawn guilty plea as evidence of guilt, improperly relied on hearsay evidence, improperly granted adjournments, improperly considered evidence that had not been produced to the defense, denied him the right to cross-examine witnesses, and falsified and misstated evidence. On or about May 21, 2004, Cummins issued a decision, revoking Plaintiff's parole and recommending that he be held for fifteen months.

On or about May 21, 2004, Plaintiff appealed Cummins's determination, and requested transcripts of all revocation proceedings from the Division of Parole's offices in Albany, New York. In June 2004 Plaintiff received the transcripts for the April 1, 2004 and April 8, 2004 appearances. (Complaint ¶ 38). On October 5, 2004, Plaintiff received the transcript of the March 18, 2004 appearance. (Id.). However, despite sending several written requests to the Division of Parole, Plaintiff did not receive the May 13, 2004 transcript until March 12, 2005. Attached to the Complaint is copy of Plaintiff's transcript request that was received by the Division of Parole, on which someone wrote a notation that the May 13, 2004 transcript could not be located. (Complaint, attached letter received by Division of Parole on May 20, 2004: "Transcripts for 3/18 4/1 & 4/8 ordered 5/26/04. Nothing found for 5/13/04.").

Plaintiff subsequently completed his appeal. While he was awaiting a decision, Plaintiff was released from prison to parole supervision. On July 20, 2005, the Parole Appeals Board affirmed Cummins's determination and denied Plaintiff's appeal. In denying the appeal, the Appeals Board noted, in relevant part, that there was "nothing to indicate that the Division did not provide the information [transcripts] in a timely manner." Plaintiff subsequently filed a proceeding pursuant to Article 78 of the New York Civil Practice Law and Rules in New York State Supreme Court, Monroe County challenging the Division of Parole's determination. However, on March 17, 2006, the Honorable Harold L. Galloway dismissed the petition. Plaintiff appealed, and on April 20, 2007, the New York State Supreme Court, Appellate Division Fourth Department, affirmed Justice Galloway's decision. In its decision, the Fourth Department specifically rejected Plaintiff's arguments that Cummins had improperly denied him a preliminary hearing and relied on hearsay, and further found that Plaintiff's remaining arguments lacked merit. On July 2, 2007, the New York Court of Appeals denied Plaintiff leave to appeal.

On February 28, 2007, while his appeal was pending before the Fourth Department, Plaintiff commenced the instant action, demanding compensatory and punitive damages. Plaintiff alleges, inter alia , that defendants violated his federal constitutional rights, and that as a result he was "forced to serve [a] fifteen month illegal incarceration." (Complaint ¶ 4).

Defendants filed the subject motions to dismiss pursuant to Federal Rule of Civil Procedure ("FRCP") 12(b)(6). Defendants maintain that all of the official-capacity claims are barred by the Eleventh Amendment and must be dismissed. Cummins further contends that as an Administrative Law Judge, she is entitled to absolute immunity. Filner and Griesmer contend that they are entitled to qualified immunity, since "[t]here are no known cases supporting the liability of a preparer of [parole hearing] transcripts due to . . . delay." (Memo of Law [#27] at 4). Filner and Griesemer further argue that Plaintiff has not alleged sufficient prejudice from the delay. Filner also contends that she was merely a supervisor, and was not personally involved in the alleged constitutional violations. Alternatively, Defendants contend that Plaintiff is barred by Heck v. Humphrey , 512 U.S. 477, 486-87 (1994) from pursuing this action, since his conviction has not been set aside. And finally, Defendants maintain that Plaintiff's claims are barred by collateral estoppel/res judicata, since the issues he raises here were already litigated in his state-court proceedings.

In response, Plaintiff maintains that the official-capacity claims are proper. (Docket [#29]). Plaintiff also states, "[I]f I had been given the opportunity to receive and review my transcripts within the prescribed time frame of the 120 days guaranteed by the N.Y.S. Department of Parole, I would have been immediately restored to parole, and would not have been forced to serve the entire term of this illegal incarceration, since I was denied my right to a preliminary hearing." (Docket [#32] ¶ 13(h)). Plaintiff also argues that Heck v. Humphrey does not apply to administrative proceedings, and that he did not have a full and fair opportunity to litigate his issues in state court. (Docket [#35]).*fn2 After the completion of the briefing schedule, Plaintiff filed a motion for appointment of counsel. (Docket [#37]).


At the outset, the Court denies Plaintiff's application for appointment of counsel. There is no constitutional right to appointed counsel in civil cases. However, under 28 U.S.C. § 1915(e), the Court may appoint counsel to assist indigent litigants. See, e.g., Sears, Roebuck & Co. v. Charles W. Sears Real Estate, Inc., 865 F.2d 22, 23 (2d Cir. 1988). Assignment of counsel in this matter is clearly within the judge's discretion. In re Martin-Trigona, 737 F.2d 1254 (2d Cir. 1984). The factors to be considered in deciding whether or not to assign counsel include the following:

1. W hether the indigent's claims seem likely to be of substance;

2. W hether the indigent is able to investigate the crucial facts ...

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