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Cusamano v. Alexander

December 8, 2009

ANTHONY CUSAMANO, TRUE NAME MICHAEL BONANO,
v.
GEORGE B. ALEXANDER, CHAIRMAN OF DIVISION OF PAROLE; JANE DOE, (OCTOBER 31, 2006) PAROLE BOARD MEMBER, BARE HILLS CORRECTIONAL FACILITY; JOHN DOE 1, (OCTOBER 31, 2006) PAROLE BOARD MEMBER, BARE HILLS CORRECTIONAL FACILITY; JOHN DOE 2, (OCTOBER 31, 2006) PAROLE BOARD MEMBER, BARE HILLS CORRECTIONAL FACILITY; MARNI AMELL, PAROLE OFFICER, BARE HILL CORRECTIONAL FACILITY; MR. BULLOCK, PAROLE OFFICER, QUEENSBORO CORRECTIONAL FACILITY; MS. GALLEGO, PAROLE OFFICER, QUEENSBORO CORRECTIONAL FACILITY; KAREN MOMENT, ACTING SENIOR PAROLE OFFICER, QUEENSBORO CORRECTIONAL FACILITY; MS. CRUSE, PAROLE OFFICER, QUEENSBORO CORRECTIONAL FACILITY; MR. PUGH, SENIOR PAROLE OFFICER, QUEENSBORO CORRECTIONAL FACILITY; MR. TURECKY, PAROLE OFFICER, BROOKLYN II PAROLE BUREAU; MICHAEL REED, ACCESS (DRUG-EVALUATION) COUNSELOR, BROOKLYN II PAROLE BUREAU; BRIAN FISCHER, COMMISSIONER OF NEW YORK STATE DEPARTMENT OF CORRECTIONS; NEW YORK STATE DEPARTMENT OF CORRECTIONS; AND NEW YORK STATE DIVISION OF PAROLE, DEFENDANTS.



The opinion of the court was delivered by: David N. Hurd United States District Judge

MEMORANDUM-DECISION and ORDER

I. INTRODUCTION

Anthony Cusamano, true name and also known as Michael Bonano ("plaintiff"), brings suit pursuant to 42 U.S.C. §§ 1981, 1983, 1984, 1985, and 1986, alleging violations of his First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment rights. Six defendants were dismissed in a prior order dated June 3, 2009. (See Order, Dkt. No. 29.) The remaining defendants are George B. Alexander, Chairman of the New York State Division of Parole; Jane Doe, Parole Board Member; John Doe 1, Parole Board Member; John Doe 2, Parole Board Member; Marni Amell, Bare Hill Correctional Facility Parole Officer; Mr. Bullock, Queensboro Correctional Facility Parole Officer; Ms. Gallego, Queensboro Correctional Facility Parole Officer; Karen Moment, Acting Senior Queensboro Correctional Facility Parole Officer; Ms. Cruse, Queensboro Correctional Facility Parole Officer; Mr. Pugh, Senior Queensboro Correctional Facility Parole Officer; Mr. Turecky, Brooklyn II Parole Bureau Parole Officer; Michael Reed, Brooklyn II Parole Bureau Access Counselor; Brian Fischer, Commissioner of the New York State Department of Correctional Services; the New York State Department of Correctional Services ("DOCS"); and the New York State Division of Parole ("DOP"). Plaintiff seeks injunctive relief to remove various conditions of his parole and monetary damages. Defendants Alexander, Amell, Turecky, Fischer, DOCS, and DOP (hereinafter referred to collectively as "defendants") are represented by the same counsel and move to dismiss plaintiff's complaint pursuant to FED. R. CIV. P. 12(b)(6) for failure to state a claim upon which relief can be granted.*fn1 Plaintiff opposes and cross-moves for summary judgment. Both motions were considered on their submissions without oral argument.

II. BACKGROUND

In March 2004, plaintiff was sentenced to prison for third-degree robbery and third-degree burglary. While serving his sentence in 2006, plaintiff had a parole interview with a Bare Hills Correctional Facility parole officer, defendant Marni Amell ("Amell").*fn2 Defendant Amell conducted the interview for information to use in a recommendation given to the Parole Board ("Board"). Amell asked plaintiff questions about his recent charges and personal history, reviewed his correctional records, and recommended the Board impose a drug treatment program as a special condition of his parole.

Plaintiff met with the Board on October 31, 2006. The Board did not inquire as to plaintiff's drug history or his lack of drug treatment programming while in prison. Instead, the Board focused upon his two prior felonies, numerous misdemeanors, and a Tier III violent conduct ticket he received while in prison. One Board member told plaintiff that the Board was looking for "a reasonable expectation that you can go out there and live a law-abiding life and not continue to commit crime." (Parole Board Hr'g Tr., Ex. A to Pl.'s Mem. of Law, Dkt. No. 19-3, 6:5-6.) The Board granted plaintiff's parole provided he "seek, obtain, and maintain employment and/or an academic/vocational program, submit to substance abuse testing as directed by the P.O., participate in a substance abuse treatment program as directed by the P.O.[, and] abide by a curfew established by the P.O." (Id. at 14:4-11.)

Plaintiff was released from Bare Hills on January 10, 2007. He was again imprisoned at the Queensboro Correctional Facility on or about March 21, 2007 after violating an unspecified term of his parole. He was thereafter released subject to the same conditions on July 2, 3007. While plaintiff was out of prison, parole officer Tamola required him to remain within New York City. After July 31, 2007, plaintiff stopped making required reports to his parole officer. The lapse resulted in the issuance of a parole violation warrant, which was still active on October 18, 2007, when plaintiff was arrested for shoplifting. Plaintiff pled guilty to both offenses and returned to prison. In prison, he wrote letters to the Chairman of the Division of Parole, defendant George Alexander, asking him to remove the special conditions upon his release, including the requirement that he remain within New York City. Defendant Alexander did not respond.

Plaintiff was scheduled for release on February 8, 2008, from the Queensboro Correctional Facility. On February 6, 2008, he went to sign the release papers. Defendants Cruse and Gallego waited outside defendant Bullock's office where plaintiff and Bullock signed the papers. The release papers listed plaintiff's previous special conditions as well as several additional requirements. Pursuant to his release agreement, plaintiff must participate in drug and alcohol abuse treatment programs, refrain from consuming alcohol or frequenting establishments that serve alcohol, refrain from driving or obtaining a driver's license, abide by his curfew established by his parole officer, participate in anger management counseling, and comply with any geographical restrictions imposed by his parole officer. (App. B to Defs.' Mot. to Dismiss, Dkt. No. 17-4, 2.) Additionally, the implementation of the special parole conditions was subject to the discretion plaintiff's parole officer. (Id.)

On February 7, 2008, Plaintiff wrote to defendant Pugh, Queensboro Correctional Facility Warden Dennis Crowley, and his parole officers Sanjurjo and Stanisewski, seeking to remove or at least modify the special conditions. After his release the following day, plaintiff appeared as required at the parole office in Brooklyn, New York. Although plaintiff arrived on time, defendant Turecky instructed him to wait outside before their meeting. Plaintiff alleges defendant Turecky and an unknown supervisor discussed four new parole conditions during the delay. Plaintiff voiced his objections to the new conditions via letters sent to defendant Turecky and other parole officials.

On February 13, 2008, parole officer Sanjurjo extended plaintiff's curfew to 9:00 p.m., but she told him he would only receive permission to visit family outside New York City after at least a month and a half of compliance with his parole conditions. In or around the beginning of March 2008, a counselor at plaintiff's employment/residence program enrolled him in a drug program. Plaintiff's case manager told him he was enrolled in order to placate his parole officers. On March 6, 2008, plaintiff wrote to parole officer McClymont--Sanjurjo's replacement--to voice his objections to the drug programming and testing. Plaintiff explained his employment/residence program already conducted drug testing and that he had never failed a test. Plaintiff and parole officer McClymont met in person on March 12, 2008, whereupon McClymont agreed to communicate plaintiff's objections to the parole office's supervisor. Plaintiff again raised objections to more of the special conditions at a subsequent meeting on April 19, 2008. He explained the curfew would disturb his plan to attend night classes at the John Jay College of Criminal Justice. He objected to the driving ban because none of his crimes involved a car and he was preparing to get his permit and license.

Plaintiff's enrollment in a drug treatment program was left to the discretion of his parole officer. (See App. B to Defs.' Mot. to Dismiss, Dkt. No. 17-4, 3 ("I will submit to substance abuse testing as directed by the PO.") (emphasis added)). By the beginning of May, parole officer McClymont had indicated to plaintiff on two separate occasions that there were legitimate questions as to whether enrollment in a drug treatment program was necessary in light of his lack of drug abuse history. (Pl's. Am. Compl., Dkt. No. 6, ¶¶ 90, 110.) However, officially, the programming remained a special condition of his parole. Despite writing letters to defendant Alexander and the New York State Corrections Commissioner (defendant Brian Fischer), plaintiff's objections to his special parole conditions were never addressed.

Parole officer McClymont and plaintiff next met on or around June 10, 2008. Following this meeting, plaintiff was given permission to attend night classes past curfew, and parole officer McClymont indicated he would reconsider the driving ban after plaintiff received a driver's license. On June 30, 2008, parole officer McClymont told plaintiff, "you've opened up a can of worms with your letter-writing campaign." (Pl.'s Am. Compl., Dkt. No. 6, ¶ 129.) OnJuly 2, 2008, parole officer McClymont informed plaintiff he had received orders to enroll plaintiff in a drug treatment program. When plaintiff asked who gave the orders, parole officer McClymont replied, "The same people you wrote the letters to" and identified McCartney and defendant Alexander as those responsible for the orders after plaintiff urged him to offer the persons' names. (Id. at ¶¶ 133-34.) Plaintiff met with a drug counselor later that day and was assigned to a six month program.

III. DISCUSSION

A. Defendants' Motion to Dismiss

None of the moving defendants are named in plaintiff's Causes of Action Four, Five, Six, Eight, Nine, Eighteen, and Nineteen. Accordingly, these claims will not be considered in connection with the motion for dismissal. Plaintiff's claims against the moving defendants may be summarized as follows: constitutional challenges to the implementation of special parole conditions, including his curfew, mandatory participation in drug and alcohol treatment programming, prohibition against obtaining a driver's license, travel limitations outside New York City, and prohibition against frequenting establishments that serve alcohol (Causes of Action One, Two, Three, Seven, and Ten); unlawful retaliation motivated by his letters sent to defendant Alexander (Cause of Action Eleven); the unlawful implementation or furtherance of a custom or policy imposing arbitrary special parole conditions upon potential parolees (Causes of Action Twelve, Thirteen, and Fourteen); violations of his rights under the Equal Protection Clause due to his status as a felon, his socio-economic class, and his race as a Latin-American (Causes of Action Fifteen, Sixteen, and Seventeen); the unlawful implementation or furtherance of a custom or policy requiring parolees with ...


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