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Moore v. Birmingham

February 13, 2009



Pro se Plaintiff Reggie Moore ("Plaintiff"), brings this action pursuant to 42 U.S.C. § 1983 and also asserts various state law claims. Plaintiff asserts that Defendants Richard Birmingham, Rekha Shah and Debora Steward (collectively, "Defendants") violated his constitutional rights in connection with the March 2005 revocation of his New York State parole, which resulted in approximately 15 months of imprisonment. Defendants move pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss Plaintiff's Amended Complaint. The Court has jurisdiction of this action pursuant to 28 U.S.C. § 1331 and supplemental jurisdiction of Plaintiff's state law statutory claims pursuant to 28 U.S.C. § 1367.

The Court has considered thoroughly Defendants' submission and the Amended Complaint.*fn1 For the following reasons, Defendants' motion to dismiss the Amended Complaint is granted.


The Complaint, construed liberally, alleges the following relevant facts, which are taken as true for purposes of this motion practice.

The Parole Revocation Proceeding and Decision

In 2005 Plaintiff, who was on parole at the time, was charged with failing to report to his parole officer. He subsequently appeared at a parole revocation hearing on March 14, 2005, at Rikers Island Judicial Center. (Am. Compl. at 1, 4.) Defendant Administrative Law Judge ("ALJ") Richard Birmingham ("Birmingham") presided over the hearing.

Defendant Debora Steward ("Steward") was the Parole Specialist with the New York State Division of Parole who prosecuted the parole revocation proceeding. Plaintiff asserts that Steward's course of conduct in prosecuting the parole violation charges violated his rights under the Eighth Amendment to the Constitution. Steward falsely represented to ALJ Birmingham that Plaintiff was a "category one" parolee when Plaintiff was actually a "category three" parolee, when Steward knew or should have known that Plaintiff was a category three parolee. Category one parolees faced harsher sentences as a result of parole violations compared with parolees in other categories. These misrepresentations were part of a pattern of "vindictive" behavior towards Plaintiff, as Steward continued to misrepresent various facts relating to his parole status or alleged violations on subsequent occasions.

Birmingham revoked Plaintiff's parole and sentenced him to 18 months of imprisonment, based in part on a finding that Plaintiff was a category one parolee. Only a finding that Plaintiff was a category one parolee could have supported a sentence of that length. The record of the proceeding does not, however, reflect any information as to a conviction that would have put Plaintiff in category one status.

Plaintiff did not receive a written notice of the decision. As a result, Plaintiff was unable to appeal the decision through the administrative process.

Plaintiff's State Court Habeas Petition; Claim Against Defendant Shah

On August 17, 2005, Plaintiff filed a petition for a writ of habeas corpus in the Supreme Court of New York, County of St. Lawrence, against the superintendent of the facility in which he was imprisoned and the New York State Division of Parole, seeking immediate release from imprisonment due to the lack of notice of the revocation decision. (Am. Compl. Ex. 1.)

In their original and supplementary papers in opposition to the petition, the respondents proffered affidavits from Defendant Rekha Shah ("Shah"), who was employed at the time in the New York City Parole Violation Unit of the New York State Division of Parole. The affidavits purported to explain computer printouts allegedly documenting service of notice of the parole revocation decision on Plaintiff and on the attorney who had represented him in the parole revocation proceeding. The state court rejected the affidavits and computer printout as insufficient to support a presumption that Plaintiff actually received notice of the parole revocation decision. The state court concluded:

Despite the fundamental, constitutional nature of petitioner's entitlement to prompt receipt of the Parole Revocation Decision notice, the respondents continue to attempt to prove such receipt by a presumption arising out of a one-size-fits-all, boilerplate-laden computer printout all but devoid of specific detail . . . . This Court finds that . . . reliance on such a generic record inspires little confidence ...

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