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Levar Henry v. Brian Fischer

November 1, 2011

LEVAR HENRY, PLAINTIFF,
v.
BRIAN FISCHER, IN HIS CAPACITY AS COMMISSIONER OF THE NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES : (DOCS), AND IN HIS INDIVIDUAL CAPACITY; ANTHONY J. ANNUCCI, IN HIS CAPACITY AS DEPUTY COMMISSIONER AND COUNSEL FOR DOCS, AND IN HIS INDIVIDUAL CAPACITY; LUCIEN J. LECLAIRE, JR., FORMER ACTING COMMISSIONER OF DOCS, IN HIS INDIVIDUAL CAPACITY; GLENN S. GOORD, FORMER COMMISSIONER OF DOCS, IN HIS INDIVIDUAL CAPACITY; JESUS DUMENG, OTIS CRUZ, CARLOS SANCHEZ, IN THEIR OFFICIAL CAPACITY AS PAROLE OFFICERS, AND IN THEIR INDIVIDUAL CAPACITY; AND JOHN/JANE DOES 1-50 (DOCS SUPERVISORY, TRAINING, AND POLICY PERSONNEL), DEFENDANTS.



The opinion of the court was delivered by: Denise Cote, District Judge:

OPINION & ORDER

Pro se plaintiff Levar Henry ("Henry") brings this action pursuant to 42 U.S.C. § 1983 against seven named officers in the New York State Department of Correctional Services ("DOCS") and Division of Parole, and fifty unnamed DOCS supervisory, training, and policy personnel.*fn1 Henry alleges that he was unlawfully subjected to a term of Post Release Supervision ("PRS") in violation of his constitutional rights. Defendants have filed a motion to dismiss the complaint for lack of subject matter jurisdiction and for failure to state a claim. In response, Henry has requested that this action be held "in abeyance" until the resolution of "a potential Habeas Corpus petition being brought against the Division of Parole." For the following reasons, Henry's request to stay the litigation is denied and the motion to dismiss is granted.

BACKGROUND

The following facts are taken from the plaintiff's complaint unless otherwise noted, and are taken to be true for purposes of this motion. LaFaro v. New York Cardiothoracic Group, PLLC, 570 F.3d 471, 475 (2d Cir. 2009). The New York State Sentencing Reform Act of 1998, known as "Jenna's Law," requires that a term of PRS be a part of every determinate sentence. See N.Y. Penal Law § 70.45(1). On April 28, 2000, however, a New York State Court sentenced Henry to a five years determinate sentence of imprisonment without a term of PRS. Nevertheless, Henry claims that on or about April 1, 2005, a Parole Officer told him that he would not be released at the end of his five years determinate sentence if he did not sign a PRS parole conditions form. Upon his release from prison on May 25, 2005, DOCS placed Henry under PRS for a term of five years.

Henry violated his PRS curfew in February 2006 and was reincarcerated from February 21, 2006 to February 22, 2007. Henry reports that the "DOCS Executive Department" denied his "appeal" from the reincarceration after a hearing at Rikers Island.

Upon his release on February 22, 2007, Henry was subject to "intensive status" PRS until December 8, 2008. His parole officer, defendant Otis Cruz, put Henry into the Bellevue Men's Shelter even though Henry had a place to stay in New York City. On November 15, 2007, Henry was rearrested. As of the date of this Opinion, he remains incarcerated. Although Henry does not specify the reasons for this arrest, he asserts that "it all snowballed from PRS."

On June 30, 2008, the New York State Legislature enacted Correction Law § 601-d, which provided a mechanism of judicial review for individuals in DOCS custody or on parole who may not have been properly sentenced to a term of PRS. The law terms such individuals "designated person[s]." N.Y. Corr. Law § 601-d. Under this provision, when DOCS or the Division of Parole determines that an individual in its custody or under its supervision falls within this category, the agencies are required to notify the relevant sentencing court so that the individual may be resentenced. Id. After receiving notice, the court must hold a resentencing hearing within thirty days and issue a decision within forty days, unless the designated person, with counsel, consents to an extension. Id.

On August 18, 2008, the New York Division of Parole notified Henry's sentencing court that Henry was a "designated person" pursuant to Correction Law § 601-d. On December 8, 2008, one-hundred twelve days after the Division of Parole sent its notification, Henry appeared in front of the state sentencing court and was resentenced to the original five years determinate sentence without a term of PRS. Henry was then released from PRS.

On May 10, 2010, Henry commenced this lawsuit for damages and declaratory relief based on alleged violations of his 14th Amendment due process rights. On February 8, 2011, Henry amended his complaint and on August 1, 2011, defendants moved for dismissal. An Order of August 8, 2011 directed the plaintiff to serve his opposition by September 2, 2011.

Henry did not file an opposition. Instead, Henry submitted a letter, dated August 30, 2011, requesting that the present action be held "in abeyance until the outcome of a potential habeas petition being brought against the Division of Parole." Henry does not represent that he has filed a petition for a writ of habeas corpus. In an apparent reference to Henry's incarceration for one year, ending on February 22, 2007, the letter claims that this habeas petition would show that the Division of Parole had no jurisdiction or authority "to impose a 1 year sentence [for] a violation of parole." Henry was released from the one year term of imprisonment in 2007 and from PRS in 2008, and does not explain precisely what relief he would seek through a petition filed in 2011.

DISCUSSION

I. Motion to Stay the Litigation

"[D]istrict courts . . . may stay a case pursuant to the power inherent in every court to control the disposition of the cases on its docket with economy of time and effort for itself, for counsel, and for litigants." WorldCrisa v. Armstrong, 129 F.3d 71, 76 (2d Cir. 1997) (citation omitted). See also Sierra Rutile Ltd. v. Katz, 937 F.2d 743, 750 (2d Cir. 1991). Henry argues that his habeas corpus petition will establish that the Division of Parole had no authority to sentence him to a term of

PRS or to reincarcerate him for one year after he violated his curfew. As explained below, however, the defendants in this case have sovereign and qualified immunity with respect to each of these actions. Accordingly, the resolution of any independent proceedings will have no bearing upon ...


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