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Joseph S. Hirsch v. John K. Desmond

February 15, 2012


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


Joseph S. Hirsch ("Hirsch" or "Plaintiff") commenced this action pro se pursuant to 42 U.S.C. § 1983 on June 25, 2008, alleging violations of his federal constitutional rights. On October 21, 2009, Hirsch filed an Amended Complaint. Presently pending before the Court is Defendants John K. Desmond, Christina J. Gilson, and Nancy H. Young's (for the purposes of this motion, the "Suffolk Defendants") motion for summary judgment. For the following reasons, the motion is GRANTED IN PART AND DENIED IN PART.


I. Factual Background*fn1

On December 12, 2001, Hirsch was found guilty by a jury of two counts of Sexual Abuse in the First Degree, two counts of Assault in the Second Degree, and Unlawful Imprisonment in the First Degree. (Suffolk Defs. 56.1 Stmt. ¶¶ 1-2 & Ex. D.) Pursuant to section 390.30 of the New York Criminal Procedure Law, Suffolk Defendant Christina Gilson ("Gilson"), a Probation Officer with the Suffolk County Probation Department ("Probation Department"), prepared and signed a pre-sentence investigation and report ("PSIR") regarding Hirsch. (Id. ¶ 3 & Ex. A.) Suffolk Defendant Nancy H. Young ("Young"), a Supervising Probation Officer, reviewed and signed Gilson's PSIR. (Id. at Ex. B.) On January 2, 2002, in anticipation of Hirsch's sentencing, the PSIR was provided to Hirsch's trial judge, Justice John Copertino of the Suffolk County Supreme Court. (Id. ¶ 4 & Exs. A, B.)

Hirsch was sentenced on January 3, 2002 by Justice Copertino to a six-year term of incarceration. (Id. ¶ 2 & Exs. C, D.) At sentencing, Hirsch's counsel, William Keahon, Esq., objected to several portions of the PSIR summarizing statements made by Hirsch's accuser.*fn2 (Id. at Ex. C.) Justice Copertino sustained counsel's objections, indicated that he would not consider the objected-to portions of the PSIR, and ordered that they be stricken. (Id. ¶ 5 & Ex. C.) Mr. Keahon stated that he would "get a copy of the [sentencing] record, and ask for an amended probation report in keeping with the Court's ruling." (Id.) Notwithstanding Justice Copertino's order and Mr. Keahon's representation, "[t]he redactions . . . were never effectuated." (Id. at Ex. D.)

The un-redacted PSIR was then forwarded to the New York State Department of Correctional Services ("DOCS"), in whose facilities Hirsch was serving his sentence. Hirsch asserts that, during his incarceration, he was required to enter a Sex Offender Counseling Program ("SOCP") as a condition of earning good-time credits towards early release. (Pl. 56.1 Stmt. ¶ 13; Am. Compl. Ex. D.) However, Hirsch refused to participate in SOCP because to do so would have allegedly required him to admit to all of the conduct outlined in the PSIR, including the crimes of which he was acquitted.*fn3 (Am. Compl. Ex. D.) Thus, Hirsch contends, the "insistence on Plaintiff's 'confession' to the erroneous crimes listed in the PSI Report, effectively precluded Plaintiff from participating in [SOCP], thereby causing Plaintiff to lose his good-time credits." (Am. Compl. § III.17 & Ex. D.) As a result, the New York State Board of Sex Offenders added fifteen points to Hirsch's "Risk Assessment" score for "refusal to accept responsibility and his expulsion from treatment." (Am. Compl. Ex. F.)

Hirsch then commenced an action in Suffolk County Criminal Court, contesting the Board's determinations. On December 5, 2007, Hirsch won a partial victory when Judge Barbara Kahn found that the Board "improperly relied" on the stricken portions of the PSIR. (Suffolk Defs. 56.1 Stmt. Ex. D.) However, Judge Kahn's decision did not affect Hirsch's loss of good-time credits or the additional fifteen points added to his Risk Assessment score for refusing to accept responsibility and being expelled from SOCP. (Id.) These additional fifteen points resulted in Hirsch being designated a level two, as opposed to a level one, offender. (Pl. 56.1 Stmt. ¶ 15.)

On January 23, 2008, Judge Kahn issued an order directing the Probation Department to supply the court with a copy of the un-redacted PSIR, so the court could "make the appropriate redactions and have same submitted to the Department of Probation to be filed accordingly." (Suffolk Defs. 56.1 Stmt. Ex. E.) Upon receipt of Judge Kahn's order, the Probation Department provided the court with a copy of the PSIR. (Id. at Ex. F.) Judge Kahn then made redactions to the PSIR, and on March 5, 2008 issued an order directing the Probation Department to incorporate her redactions in an amended PSIR "to be filed within the ordinary course of business." (Id. at Ex. G.) On March 18, 2008, Pamela Keating, a Probation Department employee, redacted the PSIR as directed by Judge Kahn and provided a copy of the amended PSIR to the Court, Plaintiff's counsel, and the Suffolk County District Attorney. (Id. at Ex. F.)

II. Procedural History

Hirsch commenced this action on June 25, 2008 and filed an Amended Complaint on October 21, 2009. In his Amended Complaint, he asserts section 1983 claims against the "New York State Defendants"*fn4 for violating his Fifth Amendment right against self-incrimination, due process, equal protection, and double jeopardy. These claims were dismissed by the Court on September 30, 2010 on the basis of qualified immunity. The Amended Complaint also asserts section 1983 claims against the Suffolk Defendants in their individual and official capacities for violating his right to due process and equal protection.

Specifically, with respect to the claims against the Suffolk Defendants, Hirsch alleges that "Gilson and Young's failure to ascertain the veracity of the statements contained in the PSI Report and the Suffolk County Probation Department's willful disregard of Judge Copertino's order to strike the offending portions from the report, violated Plaintiff's rights to Due Process and Equal Protection . . . ." (Am. Compl. § III.6.) He seeks damages in the amount of $5,400,000 and "[a]n Order directing the Suffolk County Probation Department to rewrite the PSI Report in cooperation with the Plaintiff removing the offending lies and misstatements." (Id. § IV.2-3.)

On August 22, 2011, before conducting any discovery, the Suffolk Defendants filed a motion for summary judgment arguing that they are also entitled to qualified immunity. In the alternative, they argue that they cannot be held liable "for the conduct of the New York State Department of Corrections in relying upon the [un-redacted PSIR] because the Suffolk Defendants were never ordered to make any changes to the report until March of 2008" (Suffolk Def. Mot. 3), because they are entitled to absolute immunity, and because Hirsch "can produce no evidence that the Suffolk County Department of Probation ...

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