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Gilbert Parker v. New York State Division of Parole

March 28, 2012

GILBERT PARKER,
PLAINTIFF,
v.
NEW YORK STATE DIVISION OF PAROLE, ET AL.,
DEFENDANTS.



OPINION

Pro se plaintiff Gilbert Parker brings this action under 42 U.S.C. § 1983, alleging that he was wrongfully detained twice on the same parole warrant after the maximum expiration date for his parole supervision. On August 19, 2011, the court denied Parker's motion for summary judgment. Parker has now filed four documents which are denominated as motions for summary judgment or motions for default related to the earlier summary judgment motion that the court has already denied. Defendants Alice Chin and Ronald Friedman have cross-moved for summary judgment.

All motions are denied.

FACTS

The main source of the facts described in this opinion are official records. Also, the court has made use of certain of the testimony in Parker's deposition. Defendants Chin and Friedman have not been deposed, nor have they filed any affidavits or declarations in connection with the motions. However, the defendants have filed a statement of undisputed facts, which has been used to some extent by the court.

Parker was convicted of third-degree attempted burglary in New York state court and on June 26, 2000 he was sentenced to one year and six months to three years' imprisonment. He began serving his sentence on July 18, 2000. He was released to parole supervision on December 5, 2001, and subsequently absconded to Georgia on December 13, 2001. He was arrested in Georgia, extradited to New York, and following a parole revocation hearing, he was sentenced to four months in prison for absconding to Georgia.

On October 10, 2002, Parker was again released to parole supervision. At this point, Parker's maximum expiration date, - i.e., the date on which his sentence, and thus his parole supervision, was to end, was April 3, 2003.

Chin was Parker's parole officer. Friedman was Chin's supervisor. On January 30, 2003, Chin and Friedman issued parole warrant number 388305. None of the parties have provided the court with a copy of this warrant. However, an untitled Division of Parole report apparently prepared by Chin and submitted by Friedman has been filed in connection with these motions. The report, dated February 6, 2003, recited the following alleged parole violations: he left his approved residence without the permission of his parole officer, was arrested for drinking in public in January 2003, failed to notify his parole officer of his arrest, failed to make his office reports, and failed to attend his mandated substance abuse program. The report also indicated that Parker's whereabouts were then unknown but that a warrant had been issued on January 30, 2003. Because the Division of Parole did not know Parker's whereabouts, the warrant was not served at that time.

On February 14, 2003, a report entitled "Board Action" was prepared, apparently by the New York State Division of Parole. It declares Parker "delinquent" as of January 2, 2003. January 2, 2003 is apparently the date when Parker allegedly began committing the parole violations described above.

On April 21, 2003, almost three weeks after Parker's April 3, 2003 maximum expiration date on which his parole supervision should have ended, Parker was stopped by a New York City Police Department officer for possessing an open container of beer in a public place.*fn1 The officer told Parker that if he did not have any outstanding warrants, he would give him a summons for having an open container. The officer then ran Parker's name through the NYPD computer system, which alerted him to the outstanding parole warrant that had been issued by Chin and Friedman. Parker was then detained on the warrant by the NYPD and held at Bronx Central Booking for five days.

No one from the New York State Division of Parole executed the warrant, or otherwise took any action with respect to the warrant, while Parker was detained. On April 25, 2003, Parker was arraigned only on the charge of possessing alcohol in a public place, and the charge was dismissed because Parker had already spent time in jail. Parker was released. The parole warrant remained extant.

The complaint alleges that upon his release Parker made numerous attempts to contact Chin and Friedman but was unable to do so. In his deposition, Parker admitted that he did not attempt to contact Chin between January and April 2003 because he was "on the run" and had absconded from New York, but he maintained that he attempted to contact Chin by phone after his April 2003 arrest. He did not go to the parole office in person to attempt to report to Chin. In their statement of undisputed facts, Chin and Friedman claim that Parker never contacted them or otherwise reported to them.

On May 23, 2003, Parker was again stopped by an NYPD officer for possessing an open container of beer in a public place. Like the officer who arrested Parker in April 2003, this officer stated to Parker that if Parker had no outstanding warrants he would be issued a summons and would be free to leave. The officer then conducted a name check on the NYPD computer system, which again turned up the same outstanding parole warrant that had been issued by Chin and Friedman. Parker was again detained, and this time arraigned on the parole warrant, after which he was held at the Bernard B. Kerik Complex.

On May 29, 2003, six days after he was arrested on the parole warrant, Parker was given a Notice of Violation by the New York State Division of Parole. Under New York law, the Division of Parole was required to serve this notice on Parker within three days of his arrest. The Notice of Violation informed Parker that he was being charged with violating the conditions of release to parole supervision and advised him that a preliminary hearing would be held on June 6, 2003 to determine whether probable cause existed for the charged violations. Assuming the existence of probable cause, a final revocation hearing on the charges was to be held on June 20, 2003.

Neither Chin nor Friedman's name appears on this Notice of Violation, and they have not provided any testimony as to who at the Division of Parole issued the Notice of Violation. However, as Parker's parole officer and her supervisor, it is reasonable to infer that ...


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