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Washington v. Goord

November 16, 2009

DEXTER WASHINGTON, PLAINTIFF,
v.
GLENN S. GOORD, COMMISSIONER, NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES; BRIAN FISCHER, COMMISSIONER, NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES; ANTHONY J. ANNUCCI, DEPUTY COMMISSIONER, NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES; JOHN BURGE, FORMER SUPERINTENDENT AUBURN CORRECTIONAL FACILITY; MARGARET DUSHNATINSKI, RECORD COORDINATOR OF AUBURN CORRECTIONAL FACILITY; ALAN MURPHY, CHIEF CLERK, NEW YORK COUNTY SUPREME COURT FOR STATE OF NEW YORK; MARY PRICE, CASE MANAGER COORDINATOR, NEW YORK COUNTY SUPREME COURT FOR THE STATE OF NEW YORK, DEFENDANTS.



The opinion of the court was delivered by: Laura Taylor Swain, U.S. District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Dexter Washington ("Plaintiff") brings this action pro se against Defendants Glenn S. Goord, Commissioner of the New York State Department of Correctional Services ("DOCS"); Brian Fischer, Commissioner of DOCS; Anthony J. Annucci, Deputy Commissioner of DOCS; John Burge, former Superintendent of Auburn Correctional Facility; Margaret Dushnatinski, Record Coordinator of Auburn Correctional Facility; Alan Murphy, Chief Clerk, New York County Supreme Court for the State of New York; and Mary Price, Case Manager Coordinator, New York County Supreme Court for the State of New York, (collectively, "Defendants"). Plaintiff, who received an aggregate 25-year sentence upon his 1997 conviction of various felony offenses while he was also subject to an undischarged term of imprisonment for an earlier crime, asserts claims pursuant to 42 U.S.C. § 1983. He asserts that the administration of the second sentence as consecutive, rather than concurrent, to his earlier undischarged criminal sentence, without an explicit pronouncement at sentencing that he was a "second violent felony offender" within the meaning of relevant New York State law or that the term would be consecutive, violated his rights to due process, equal protection of the law, and protection from cruel and unusual punishment, under the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States. Plaintiff seeks compensatory damages, as well as declaratory and injunctive relief. The Court has jurisdiction of this action pursuant to 28 U.S.C. §§ 1331, 1343(3) & (4), and 2201. The Court has considered thoroughly all of the parties' submissions. For the reasons explained below, Plaintiff's § 1983 claims are dismissed and the Court declines to exercise supplemental jurisdiction over Plaintiff's state law claims.

Defendants move to dismiss Plaintiff's Amended Complaint, arguing, among other things, that the Eleventh Amendment bars Plaintiff's § 1983 claims against all Defendants sued in their official capacities and that Plaintiff fails to state a cause of action under § 1983 because DOCS committed no error in administering Plaintiff's sentence as running consecutively to previous sentences pursuant to N.Y. Penal Law § 70.25(2)(a).

BACKGROUND

Except as otherwise indicated, the following relevant facts are alleged in the Amended Complaint, or are drawn from documents appended to the Amended Complaint or incorporated therein by reference. The Court reads Plaintiff's submissions liberally, in light of Plaintiff's pro se status, and construes as true for purposes of this motion practice factual allegations made in Plaintiff's Brief in Opposition to Defendants' Motion to Dismiss.

Plaintiff is a DOCS inmate. (Am. Compl. at ¶ 8.) In December 1977, Plaintiff was convicted of first degree robbery.*fn1 He was sentenced in 1978 to a term of 12 1/2 to 25 years' incarceration (the "1978 Sentence"), but was released on parole after serving 18 years. On October 15, 1997, while under parole supervision, Plaintiff was convicted of burglary in the first degree (two counts), robbery in the first and second degrees and resisting arrest, and was sentenced to an aggregate term of 25 years (the "1997 Sentence"). (Am. Compl. at ¶¶ 14-15.) In imposing the 1997 Sentence, the sentencing court was silent as to how Plaintiff's sentence should be administered in relation to the undischarged portion of the 1978 Sentence. (Id. at ¶ 16.) The sentence and commitment order originally entered in connection with the 1997 Sentence, dated December 19, 1997, classified Plaintiff as a "violent felony offender" rather than as a "second violent felony offender" and, Plaintiff asserts, instructed that "all counts were to run concurrent." (Id. at ¶ 17.)

When Plaintiff was received into DOCS custody, DOCS officials modified the commitment order to reflect that Plaintiff was a "second violent felony offender," deemed the 1997 Sentence to run consecutively to the 1978 Sentence, and calculated Plaintiff's sentence accordingly.*fn2 (Id. at ¶ 19.) When Plaintiff learned in August 2004 of DOCS' computation of his sentence as consecutive, he notified the Auburn Correctional Facility Inmate Record Coordinator, defendant Margaret Dushnatinski, that DOCS had miscalculated his sentence, that the sentencing court had failed to specify either in the oral pronouncement of the sentence or the commitment order whether the 1997 Sentence was to be concurrent or consecutive to any previous time owed and that since, Plaintiff had been convicted as only a violent felony offender, New York Penal Law § 70.25(1)(a) mandated that his sentence was to run concurrent.*fn3 (Id. at ¶¶ 20-21.) Plaintiff also filed a grievance with the Auburn Correctional Facility Grievance Office, which was forwarded to the Superintendent. (Id. at ¶¶ 22-23.) On August 25, 2004, Plaintiff wrote a letter to the DOCS Office of Sentence Review, making the same argument and requesting that his sentence be corrected. (Id. at ¶ 24.) In a letter dated September 1, 2004, Dushnatinski refused to correct his time calculation, stating that Plaintiff had been sentenced as a second felony offender pursuant to New York Penal Law §§ 70.06 and 70.25(2)(a). (Id. at ¶ 25.) On September 3, 2004, Plaintiff received a response from the Superintendent, stating that "if an inmate is sentenced pursuant to P.L.§ 70.04, then the P.L. § 70.25(2)(a) applies to whether the sentence should run concurrent or consecutive to any prior undischarged term of a sentence." (Id. at ¶ 26.)

Plaintiff appealed the Superintendent's decision to the Central Office Review Committee ("CORC"). (Id. at ¶ 28.) On September 15, 2004, Plaintiff received a letter from DOCS officials stating that he was "sentenced as a repeat offender" and thus his sentence must run consecutively to any prior sentence. (Id. at ¶ 29.) On October 6, 2004, Plaintiff received a notice from CORC stating that his appeal of the Superintendent's decision was denied. (Id. at ¶ 30.)

On January 3, 2005, Plaintiff filed a pro se petition for a writ of habeas corpus in New York State Supreme Court, Cayuga County, arguing that DOCS officials had violated his due process rights, and further arguing that, because the court had failed to state that Plaintiff was being sentenced as a second violent felony offender during the oral pronouncement of his sentence, as required by New York Criminal Procedure Law §§ 380.20 and 380.40, or whether his sentence would run concurrently or consecutively to any undischarged prior sentence, his sentence was required to run concurrently. (Id. at ¶¶ 33-34.)

During the pendency of the habeas proceeding, Plaintiff alleges, DOCS officials contacted the New York County Court Clerk's office and requested an amended commitment order. (Id. at ¶ 41.) The commitment order was thereafter modified by an "unknown clerk" to recite that Plaintiff was sentenced as a second violent felony offender and that the sentence was to run consecutively to any previous undischarged time on his prior sentence. (Id. at ¶¶ 42-43.)*fn4

Plaintiff also alleges that the signatures of New York County Supreme Court Clerk Norman Goodman, Judge Antonio Brandveen, and the Judge's clerk were "forged to specifically give authenticity" to the commitment order.*fn5 (Id. at ¶ 47.) The amended commitment order displays handwritten asterisks next to a line amended to recite that Plaintiff was sentenced as a second (violent) felony offender and "remarks" noting "10-7-97 after hearing Deft. found to be a violent predicate felon." (Id. at Exhibit C.)

The Court takes judicial notice of the fact that Plaintiff's habeas petition was dismissed and the dismissal was unanimously affirmed on appeal to the Appellate Division. See People ex rel. Washington v. Burge, 30 A.D. 3d 1066 (4th. Dept. 2006), lv. denied, 7 N.Y. 3d 711 (2006).*fn6 The Appellate Division held that, given the fact that the 1997 Sentence had been imposed "following a hearing at which petitioner was determined to be a second violent felony offender," the consecutive sentencing mandate of N.Y. Penal Law §70.25(2-a) required the sentence to run consecutively "despite the sentencing court's failure to address that issue on the record at sentencing." Id. at 1066. This Court also takes judicial notice of the fact that Plaintiff's subsequent state court application for mandamus relief pursuant to CPLR Article 78, seeking vacatur of his sentence as a second violent felony offender and an immediate release from custody, was denied on collateral estoppel grounds. See Washington v. Lippman, 30 A.D.3d 299 (1st Dept.), lv. denied, 7 N.Y.3d 898 (2006).

Plaintiff filed his original complaint in this matter on April 6, 2007, alleging that DOCS had exceeded its authority in deeming his sentence to run consecutively, and had therefore violated his constitutional rights to equal protection and due process. Plaintiff's § 1983 claim was dismissed, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), for failure to state a claim upon which relief may be granted. Upon Plaintiff's appeal of the dismissal to United States Court of Appeals for the Second Circuit, the decision was reversed and the case was remanded to permit Plaintiff to amend his complaint to clarify his allegations concerning unconstitutional modifications of his sentence. Washington v. Goord, No. ...


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