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Andrew Johnson v. New York State Dep't of Parole

December 22, 2010


The opinion of the court was delivered by: Richard J. Holwell, District Judge:


Plaintiff Andrew Johnson ("Johnson") brings this complaint pursuant to 42 U.S.C. § 1983 against the New York State Division of Parole ("the Division"), New York State Board of Parole Chairwoman Andrea Evans ("Evans"), Parole Officer Daina Estwick ("Estwick"), Parole Officer

D. Babb ("Babb"), and an unknown individual identified as "M. Rose." Johnson filed this complaint on March 22, 2010. All defendants but "M. Rose" moved to dismiss or, in the alternative, for summary judgment on July 13, 2010. To date, Johnson has not filed an opposition to this motion.

On October 5, 2010, the Court issued an order instructing Johnson to demonstrate that he had served process upon "M. Rose" within 120 days of filing his complaint or to demonstrate that he failed to do so for good cause. Johnson did not respond to this order, and copies of this order sent to Johnson's last known address were returned by the post office. On October 29, 2010, defendants' counsel informed the Court that Johnson had apparently absconded from the jurisdiction in connection with possible parole violations. Counsel estimated that Johnson had done so after defendants filed their motion, but before the Court issued its October 5, 2010 order. For the reasons stated below, the defendants' unopposed motion is granted in its entirety.


The following facts are taken from the complaint and from the defendants' unopposed motion for summary judgment.

During the time when the relevant events occurred, Johnson was on parole supervision. Between August and November 2009, Johnson violated the conditions of his parole on numerous occasions by, for example, testing positive for cocaine; failing to report to Estwick, his parole officer; testing positive for marijuana; and not being present at his residence during curfew hours. During this time period, Johnson informed Estwick that he suffered from a mental disorder and was prescribed several medications by a psychiatrist. Estwick asked Johnson for documentation of his mental disorder, but Johnson never produced it.

Eventually, Johnson was offered the opportunity to enroll in the Edgecombe Program, a residential program for parolees with substance abuse problems, rather than having parole revocation proceedings initiated against him. Johnson had previously attended this program in August 2009. He agreed to enter into the program again.

During Johnson's intake into Edgecombe, he met with Babb. He informed Babb that he suffered from a mental disorder and had been prescribed medication. He did not document this mental disorder and stated that he had voluntarily stopped taking his medication in order to participate in Edgecombe. Babb discussed Johnson with her supervisor, and her supervisor determined that Johnson should be allowed to remain in Edgecombe. Johnson alleges that Babb and Estwick's decision to allow Johnson to enroll in Edgecombe, knowing that he suffered from a mental disorder, constituted cruel and punishment.

On November 23, 2009, Johnson was placed on quarantine at Edgecombe because he was suffering from flu-like symptoms. Johnson alleges that he wrote a letter to Evans while he was on quarantine complaining of the fact that he needed mental health treatment. (Pl.'s Compl. 3.) The defendants have produced a copy of the letter that Johnson wrote. (Biesty Decl., Ex. 1.) It is actually addressed to "Mrs Washington Superintendent." (Id.) Johnson described his experience on quarantine as follows: "I was a mentally tormented sitting in a quarantine cell during thanksgiving no one to talk to about the my depression . . . ." (Pl.'s Compl. 3.)

On November 30, 2009, Johnson was discharged from Edgecombe because the facility was unable to provide him with mental health care. Shortly thereafter, parole revocation proceedings were initiated against Johnson. Rather than being incarcerated, Johnson was enrolled in another residential substance abuse program.


Summary judgment is appropriate where there are no genuine issues of material fact. See Fed. R. Civ. P. 56(c). The burden to show the absence of a genuine factual dispute falls on the moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). A dispute regarding a fact is genuine if the evidence is such that a reasonable finder of fact could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material when it "might affect the outcome of the suit under the governing law." Elec. Inspectors, Inc. v. Vill. of E. Hills, 320 F.3d 110, 117 (2d Cir. 2003). In evaluating a motion for summary judgment, the court is required to "view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments . . . ." Wevant v. Okst, 101 F.3d 845, 854 (2d Cir. 1996) (citations omitted).

Even where, as here, the non-moving party does not respond to the motion for summary judgment, the court may not grant the motion by default. Although the non-movant's failure to respond "may allow the district court to accept the movant's factual assertions as true, the moving party must still establish that the undisputed facts entitle him to a judgment as a matter of law." Vermont Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 246 (2d Cir. 2004) (internal citations and quotation marks omitted). Accordingly, in reviewing a motion for summary judgment-even one that is unopposed-the court must ...

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