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Bostic v. Harder

September 25, 2009


The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge



Plaintiff, who is proceeding pro se,*fn1 commenced this action on May 3, 2006 asserting claims against various Defendants based upon events arising from his arrest on November 11, 2003 for striking his wife. See Compl. dkt. # 1. This Court issued two prior decisions dismissing certain claims pursuant to Fed. R. Civ. P. 12(b)(6), see dkt. #s 14 & 57, familiarity with which is assumed, and Plaintiff was granted permission to file a second Amended Complaint. See Ord., dkt. # 70. The second Amended Complaint ("Amended Complaint") was filed on April 21, 2008. See dkt. # 71. Thereafter, Plaintiff was ordered to "forward a copy of the amended complaint to counsel for the parties who have appeared in the action, and to provide the requisite USM-285 forms and number of copies of the complaint and supplemental summons, to be issued by the court, to the United States Marshal for service upon" the other named Defendants. Ord., dkt. # 73. Defendants David E. Harder, Mark Smolinsky, the Broome County Sheriff's Department, and the County of Broome have not appeared in this action and there exists no proof in the record of service of the summons and Amended Complaint upon them, or compliance with the Court's instructions to forward necessary documents to the United States Marshal for service.

The New York State Defendants that remain in this action (John Lattimer, Al Simons, and Robert Dennison), and the City of Binghamton Defendants (Carl Smith, the City of Binghamton, and City of Binghamton Police Department) move pursuant to Fed. R. Civ. P. 56 to dismiss the claims against them. See State Def. Mot., dkt. # 89; City Def. Mot., dkt. # 90. Plaintiff has opposed the pending motions. See dkt. # 96.*fn2 For the reasons that follow, the motions are granted.


The following facts relevant to the pending motions are not in dispute.*fn3

At approximately 2:15 AM on November 12, 2003, both the Plaintiff and his wife called 911. Plaintiff hung up before his call was answered, but his wife, Donna Capani, asserted that she had been assaulted. Two City of Binghamton police officers were dispatched to Plaintiff's apartment in the City of Binghamton. The officers learned that Plaintiff and his wife had been arguing. Plaintiff was angry and yelling because he believed his wife was verbally abusing him. One officer interviewed Plaintiff in the living room, while Defendant Officer Smith interviewed Ms. Capani in the kitchen. The Plaintiff could not hear what was said between Officer Smith and Ms. Capani. After the officers conferred with Plaintiff and his wife, Plaintiff was told that his wife had asserted that he had struck her on the head, that Officer Smith had observed a red mark on his wife's forehead, and that he was being placed under arrest for striking is wife. Plaintiff insisted that he had not struck his wife, contending instead that the mark was caused by his wife sleeping on her hand.

Plaintiff was transported to the Binghamton Police Department where he was formally charged by Defendant Smith with assault in the third degree of his wife, Donna Capani. Ms. Capani signed a supporting deposition asserting that Plaintiff had struck her on the forehead. At the time, Plaintiff was on parole for his 1999 state court conviction of robbery and had only recently been released to parole supervision from his sentence of three and one-half to seven years incarceration. After being processed, Plaintiff was arraigned before the Binghamton City Court and his bail was set at $2,500.00.

The next day, Plaintiff received a notice of parole violation issued by his Parole Officer, Sharon Brown, and a parole violator's warrant was issued. In response to the parole violator's warrant, Plaintiff requested a preliminary parole revocation hearing. The hearing, which was to determine whether there was probable cause to proceed with a final parole revocation hearing, was conducted on November 20, 2003. Plaintiff was represented by counsel. At the hearing, Officer Smith, Donna Capani and Parole Officer Sharon Brown testified against Plaintiff. Plaintiff's counsel was afforded the opportunity to cross-examine the witnesses. Plaintiff chose not to testify.

At the conclusion of the hearing, Hearing Officer Lumina Pomerleau found that there was probable cause to proceed with a final revocation hearing. In her decision, Hearing Officer Pomerleau stated:

I find that there is probable cause to believe that on 11/12/03 at approximately 2:15 AM at 20 Jefferson Avenue, City of Binghamton, NY, you struck your wife Donna Capani in the face causing a bruise on her forehead as well as pain and discomfort, which constitutes a violation of Parole Rule # 8.*fn4 My findings and conclusions are based upon [State Exhibit] # 1 and the reliable testimony of P.O. Brown, Carl Smith and Donna Capani.

Plaintiff's criminal assault charge was later reduced to second degree harassment.

See Bostic v. Harder, 05-CV-79, May 22, 2008 Rep. Rec., p. 2 (N.D.N.Y.)(Treece, M.J.)(recommending denial of Bostic's habeas corpus petition, which asserted that he was unconstitutionally held because he did not receive a timely final parole revocation hearing or criminal trial, because he had been released from incarceration), adopted by Decision and Order dated July 2, 2008 (Kahn, J.). Petitioner's trial on the harassment charge began on January 14, 2004. However, the presiding judge stopped the trial and adjourned the proceeding after Plaintiff, who insisted on representing himself, starting calling Officer Smith a "f * * king liar" during cross-examination, and stated to the judge: "What kind of trial is this? You're all violating my rights. You're all playing with my rights, man." Trial Trans., p. 13. The City Court inquired of the Division of Parole of its intentions regarding the parole violator's warrant, and adjourned the criminal matter pending a determination by the Division of Parole on the parole violation.

In May 2004, two more charges asserting parole violations were brought against Plaintiff by Defendant John Lattimer, a Parole Revocation Specialist. The two charges were listed as charge number 3 and charge number 4. Charge number 3 alleged that, while being held in the Broome County Jail on the original violation warrant, Plaintiff violated Parole Rule # 8 by writing Ms. Capani "contrary to an active order of protection issued out of Binghamton City Court." Charge number 4 alleged that Plaintiff "violated rule 12-18, a board-imposed special condition to comply with all orders of protection, when [Plaintiff] sent a letter to Donna M. Capani contrary to an active order of protection issued out of Binghamton City Court."

Plaintiff's final parole revocation hearing was scheduled to take place on March 9, 2005. On this date, while the parties were before the administrative law judge, the Division of Parole requested an adjournment because Ms. Capani was not available as a witness. Plaintiff, who was represented by counsel, objected to the adjournment. There was a discussion on the record concerning the numerous adjournments leading up to the final revocation hearing. Plaintiff contended that at least one of the prior adjournments was attributable to Parole. The administrative law judge reviewed all prior adjournment requests in the case and stated that all had been at the request of Plaintiff's counsel. In addition, Plaintiff challenged the timeliness of the hearing on March 9, 2005. The administrative law judge ruled that the hearing was timely, finding that "the Division of Parole was well within the 90 days which they normally would have to bring a final revocation hearing. . . ." The administrative law judge adjourned the hearing for one week and charged the final adjournment to Parole.

On March 16, 2005, the final parole revocation hearing took place. Plaintiff was represented by counsel. At the hearing, pursuant to a plea agreement, Plaintiff pled guilty to charge number 3 in full satisfaction of all pending charges. Plaintiff admitted there was a factual basis for the plea. The administrative law judge accepted the guilty plea and withdrew charges number 1, 2, and 4 in accordance with the parties' plea agreement.

During the hearing, Plaintiff had a discussion with the judge concerning whether Plaintiff was a category three or a category one parolee. Plaintiff contended that he was a category three parolee. The administrative law judge ruled, however, that Plaintiff was a category one parolee because of the his robbery conviction. This meant, as Plaintiff concedes, that Plaintiff could be held in custody on the parole violator's warrant for up to 18 months. The administrative law judge ruled that Plaintiff would be held to his maximum parole expiration date, which had the practical effect of returning Plaintiff to parole supervision on April 5, 2005.

The administrative law judge issued a written revocation decision that same day in which he accepted Plaintiff's guilty plea to charge number 3 in full satisfaction of all pending charges. In the decision, the administrative law ...

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