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Michael Sayles v. Fischer

March 29, 2011

MICHAEL SAYLES, PLAINTIFF,
v.
FISCHER, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Hon. Hugh B. Scott

Consent Decision & Order

Before the Court is the defendant's motion for summary judgment (Docket No. 22).*fn1

BACKGROUND

Plaintiff, Michael Sayles ("Sayles"), commenced this civil rights action pursuant to 42 U.S.C. § 1983 seeking a declaratory judgment and monetary damages for violations of his Fifth Amendment right against self-incrimination and Fourteenth Amendment right to due process resulting from the New York State Department of Correctional Services ("DOCS") operation of a Sex Offender Counseling Program ("SOP"). (Docket No. 1). The defendants are current and former DOCS employees.*fn2 (Docket No. 23, ¶¶ 8-10). The following facts are undisputed unless otherwise noted.

In 2000, the plaintiff was convicted of his third felony-level Driving While Intoxicated ("DWI"), for which he received probation. In 2004, Sayles violated the terms of his probation when he was convicted of Assault and Aggravated Unlicensed Operation. Consequently, petitioner received a 2 to 6 year indeterminate sentence for the felony DWI and a 1 to 3 year concurrent sentence for Assault and Aggravated Unlicensed Operation conviction. (Docket No. 23, ¶¶ 4-12). The plaintiff began serving his sentence in DOCS custody in February, 2004. His conditional release date was calculated as September 24, 2007, and his maximum expiration date was September 24, 2009.*fn3

On April 26, 2005, the Division of Parole ("DOP") interviewed plaintiff as a merit time applicant. On May 2, 2005, the DOP denied Sayles parole noting, among other things, his multiple DWI convictions. The plaintiff then appeared before the DOP as an initial applicant on June 29, 2005. The DOP again denied the plaintiff parole on July 3, 2005. In doing so, it relied upon the erroneous information that the plaintiff had been convicted of seven DWI related offenses, four of which were felonies. In fact, the plaintiff had been convicted of six DWI offenses, three of which were felonies. As a result, the plaintiff appeared before the DOP again on April 19, 2006 for a de novo hearing. On this occasion, Sayles was denied parole due to his multiple alcohol-related convictions, prior probation violation, and a Tier III infraction, discussed below. The plaintiff's next appearance date before the DOP would be in July 2007. (Docket No. 23, ¶¶ 13-19, 33-37).

On October 2, 2005, while incarcerated at Gowanda Correctional Facility ("Gowanda"), the plaintiff was visited by his wife and 8-year old daughter. During that visit, a Correctional Officer observed Sayles' daughter sitting on his lap. According to the Officer, the plaintiff was "touching/rubbing his daughter's chest area, buttock and groin area with an open hand." Sayles disputes that the Officer witnessed him touching his daughter in an inappropriate manner. (Docket. No. 23, ¶¶ 20-21; Docket No. 33-1, ¶ 21).

As a result of that incident, the Correctional Officer filed an inmate misbehavior report charging Sayles with "touching/rubbing his daughter's chest area, buttock and groin area with an open hand." A Tier III disciplinary hearing was conducted on October 7 and 11, 2005, after which the Hearing Officer found the plaintiff guilty of the charge of Facility Visiting Violation. The Hearing Officer went on to state that he believed that the plaintiff did rub his daughter's buttock and groin during the incident. (Docket No. 23, ¶¶ 22-24).

On October 12, 2005, the Superintendent from Gowanda notified Sayles that he had been found guilty of "inappropriate touching," and that his visiting privileges with his daughter were suspended for a period of 180 days. In December of 2005, officials at Bare Hill Correctional Facility requested guidance from the Office of Guidance and Counseling ("OGC") in Albany as to whether the plaintiff's October 2, 2005 disciplinary report warranted a referral to a Sexual Offender Program. After reviewing the facts and circumstances of the October 2, 2005 incident and DOCS Policy and Procedure Manual for the Sex Offender Counseling Program, the OGC determined that plaintiff should be placed in a SOP. On December 28, 2005, the plaintiff consented to participation in the SOP. (Docket No. 24, Bates No. 0023). However, on March 27, 2006, while housed at Oneida Correctional Facility, Sayles refused to admit he was touching his daughter, which was deemed to be a refusal to participate in the SOP program. Sayles executed a form acknowledging that he was refusing to participate in the program, and that his refusal may result in a negative decision by the DOP, a negative decision by the Time Allowance Committee, and the denial of an Earned Eligibility Certificate. (Docket No. 23, ¶¶ 25-32; Docket No. 24, Bates No. 0024 and 0025).

Six months after the plaintiff's disciplinary hearing, the plaintiff appeared before the DOP for his de novo parole hearing on April 19, 2006. See supra. Plaintiff was denied parole based on, among other things, plaintiff's "multiple alcohol related convictions and prior probation violation." The DOP noted that "program completions are noted and considered," and cited plaintiff's Tier III infraction for facility visitation. The DOP concluded, "[b]ased on this record you have demonstrated that you are unable to stop drinking and driving, accordingly discretionary release is inappropriate at this time." (Docket No. 23, ¶¶ 33-37).

On May 10, 2007, Sayles was notified by defendant Jubert that his name appeared on the May 2007 Time Allowance Committee, that he had possible good time credits in the amount of two years, and that the Committee determined that there may be sufficient reason not to recommend the total amount of good time available to him. A Time Allowance Committee hearing was held on May 17, 2007, after which the Committee recommended the withholding of two years good time. (Docket No. 23, ¶¶ 38-39).

On July 10, 2007, the plaintiff again appeared before the DOP. At that time, the DOP denied the plaintiff parole and issued a 24-month hold, noting that Sayles "drove while intoxicated and without a license in a continuation of a long standing record of alcohol-related driving offenses dating back to approximately 1986." The DOP also observed that since his last appearance, the plaintiff was denied an Earned Eligibility Certificate due to an "overall unacceptable level of program attendance" and had " lost all available good time credit." (Docket No. 23, ¶¶ 41-42). Plaintiff was ultimately released from custody in February, 2008. (Docket No. 23, ¶ 43).*fn4

The defendants now move for summary judgment on the grounds that, inter alia, plaintiff has failed to allege a violation of his Fifth and Fourteenth Amendment rights, and in any event, the defendants' affirmative defense of qualified immunity. (Docket No. 22). For the reasons set forth below, the defendants' motion for summary judgment is granted.

DISCUSSION

Summary Judgment Standard

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." F.R.C.P. 56(c). In reaching this determination, the court must assess whether there are any material factual issues to be tried while resolving ambiguities and ...


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