PETER A. SCOTT, SR., Plaintiff,
WOODWORTH, Parole Officer, Broome County, Division of Parole, Defendant.
PETER A. SCOTT, SR., Stormville, New York, Plaintiff Pro Se.
HON. ERIC T. SCHNEIDERMAN, Attorney General for the State of New York, ADELE M. TAYLOR-SCOTT, ESQ., Assistant Attorney General, Albany, New York, Attorney for Defendant.
REPORT-RECOMMENDATION AND ORDER
CHRISTIAN F. HUMMEL, Magistrate Judge.
Plaintiff pro se Peter A. Scott, Jr. ("Scott"), an inmate currently in the custody of the New York State Department of Correctional and Community Supervision ("DOCCS"), brings this action pursuant to 42 U.S.C. § 1983 alleging that defendant Woodworth, a parole officer for the New York State Division of Parole ("NYSDOP"), violated his constitutional rights under the Fourth, Eighth, and Fourteenth Amendments. Compl. (Dkt. No. 1). Presently pending is Woodworth's motion for summary judgment pursuant to Fed.R.Civ.P. 56. Dkt. No. 25. Scott does not oppose this motion. For the reasons that follow, it is recommended that Woodworth's motion be granted.
I. Failure to Respond
Scott did not oppose Woodworth's motion although the Court notified him of his response deadline. Dkt. No. 26. "Summary judgment should not be entered by default against a pro se plaintiff who has not been given any notice that failure to respond will be deemed a default." Champion v. Artuz , 76 F.3d 483, 486 (2d Cir. 1996). Woodworth provided notice in his motion papers as required by the Second Circuit and as normally done by the office of Woodworth's counsel. Id .; Dkt. No. 25-1. Further, upon Scott's motion for an extension to respond to Woodworth's motion, the Court granted Scott a sixty-day extension. Text Order dated 3/8/2013. Despite the notices and extension, Scott failed to respond.
"The fact that there has been no response to a summary judgment motion does not... mean that the motion is to be granted automatically." Champion , 76 F.3d at 486. Even in the absence of a response, defendants are entitled to judgment only if the material facts demonstrate their entitlement to judgment as a matter of law. Id .; FED. R. CIV. P. 56(c). "A verified complaint is to be treated as an affidavit... and therefore will be considered in determining whether material issues of fact exist...." Colon v. Coughlin , 58 F.3d 865, 872 (2d Cir. 1995) (citations omitted); see also Patterson v. Cnty. of Oneida , 375 F.3d 206, 219 (2d Cir. 2004) ("[A] verified pleading... has the effect of an affidavit and may be relied upon to oppose summary judgment."). The facts set forth in Woodworth's Rule 7.1 Statement of Material Facts (Dkt. No. 25-2) [hereinafter "Def.'s Statement"] are accepted as true as to those facts that are not disputed in Scott's complaint. N.D.N.Y.L.R. 7.1(a)(3) ("The Court shall deem admitted any properly supported facts set forth in the Statement of Facts that the opposing party does not specifically controvert.") (emphasis in original).
On November 12, 1997, Scott pled guilty to two counts of sodomy in the second degree in Broome County Court. Def.'s Statement ¶ 3; Woodworth Decl. (Dkt. No. 25-3) ¶ 4; Dkt. No. 25-3 at 5. Scott is serving an indeterminate sentence of seven to fourteen years. Def.'s Statement ¶ 3; Woodworth Decl. ¶ 4; Dkt. No. 25-3 at 5. On December 23, 2009, Scott was released on parole supervision to Dixie 2000, a residence program, and placed under NYSDOP's jurisdiction until his maximum expiration date of June 6, 2014. Def.'s Statement ¶ 4; Woodworth Decl. ¶¶ 5-7; Dkt. No. 25-3 at 7. Scott was released on both standard and special conditions of release. Def.'s Statement ¶ 5; Woodworth Decl. ¶ 8; Dkt. No. 25-3 at 7-8, 14-18. Scott signed a Certificate of Release to Parole acknowledging these conditions of release. Def.'s Statement ¶ 6; Woodworth Decl. ¶ 8; Dkt. No. 25-3 at 7-8, 14-18, 53.
Scott agreed to the following standard conditions of release:
(4)... permit my Parole Officer to visit me at my residence... and... permit the search and inspection of my person, residence and property."
(5)... reply promptly, fully and truthfully to any inquiry of or communication by my Parole Officer or other representative of the Division of Parole."
(7)... not be in the company of or fraternize with any person I know to have a criminal record... except for accidental encounters in public places...."
Def.'s Statement ¶¶ 7-9; Dkt. No. 25-3 at 7. Scott agreed to the following special conditions of release:
(13C)... make weekly office reports to my Parole Officer on every Thursday of every week until I am directed to the contrary.
(13L)... have no contact whatsoever with any male or female child who is 18 years of age or younger. I understand that I will not have any conversation with any child, correspond with any child or be in the company of any child. I understand that I will avoid those places where children get together including, but not limited to parks, schools, church groups, playgrounds, etc. I further understand that I will not come within one thousand (1, 000) feet of [such locations].
(13O)... will not own, purchase or possess any children's toys including, but not limited to children's videos, children's DVDs, children's computer games, children's clothing, etc.
(13AA)... keep a daily journal of all my activities... and present this to my Parole Officer on my assigned report day.
Def.'s Statement ¶¶ 10-11; Dkt. No. 25-3 at 14-15, 17.
Woodworth served as Scott's parole officer. Def.'s Statement ¶ 2; Woodworth Decl. ¶¶ 2-3. Woodworth met with Scott in the morning of December 23, 2009 to discuss Scott's curfew and fees, review the conditions of release, complete drug testing, and take Scott's photograph. Woodworth Decl. ¶ 9.
On December 31, 2009, Scott made an office report and requested permission to speak with his wife. Def.'s Statement ¶ 12; Woodworth Decl. ¶ 10; Dkt. No. 25-3 at 26. Scott reported to Woodworth that he does not have a history of domestic violence with his wife. Def.'s Statement ¶ 13; Woodworth Decl. ¶ 10; Dkt. No. 25-3 at 26. Woodworth decided to provisionally approve the requested contact. Woodworth Decl. ¶ 10; Dkt. No. 25-3 at 26. On January 7, 2010, Woodworth directed Scott to have only telephone contact with his wife until NYSDOP approves contact. Def.'s Statement ¶ 14; Dkt. No. 25-3 at 26.
On January 8, 2010, Woodworth and non-party Hoyt, also a parole officer, interviewed Scott's wife. Dkt. No. 25-3. Ms. Scott reported that she and Scott had a domestic altercation early on in their relationship. Def.'s Statement ¶ 16; Dkt. No. 25-3 at 26. Specifically, Scott struck Ms. Scott's face with his fist. Def.'s Statement ¶ 16; Dkt. No. 25-3 at 26. Ms. Scott indicated that Scott was visiting her at her residence, denied having any sexual contact with Scott, and revealed they went to the public library where Scott made an unsuccessful attempt to obtain a library card. Def.'s Statement ¶ 17; Dkt. No. 25-3 at 25. Woodworth considered the public library to be a place where Scott would likely come into contact with children under eighteen-years-old. Def.'s Statement ¶ 18.
Later that day, Woodworth confronted Scott with the new information, to which Scott conceded that he was dishonest about not having any domestic violence issues with his wife. Dkt. No. 25-3 at 25. Woodworth searched Scott's person and found a condom and a letter dated January 2010 from an incarcerated individual. Def.'s Statement ¶ 19; Dkt. No. 25-3 at 25, 58, 63. Scott then admitted to recording inaccurate information in his journal and not bringing it to the office report. Def.'s Statement ¶ 20; Dkt. No. 25-3 at 25.
Woodworth and Scott went to Scott's residence to retrieve the journal. Def.'s Statement ¶ 22; Dkt. No. 25-3 at 24. At Scott's residence, Woodworth recovered Scott's journal, which indicated that Scott had failed to update it since December 29, 2010. Def.'s Statement ¶ 23; Dkt. No. 25-3 at 24. Woodworth also recovered a "Sponge Bob" television set and remote control, two DVDs, and a "Family Guy" cartoon book. Def.'s Statement ¶ 24; Dkt. No. 25-3 at 24. Woodworth attested that his examination of Scott's residence during home visits and search of Scott's coat during an office report were proper and agreed to by Scott under Standard Condition No. 4 of his conditions of release. Woodworth Decl. ¶ 37.
After this search, Woodworth obtained a parole violation warrant for Scott's arrest. Def.'s Statement ¶ 25; Woodworth Decl. ¶ 36. Scott was taken into custody under the warrant. Def.'s Statement ¶ 26. It was determined that a parole violation warrant should be issued against Scott for the following reasons: (1) failing to keep an accurate journal of his activities and possess his journal during an office report; (2) failing to reply truthfully to Woodworth's inquiries; (3) communicating with an individual he knew to have a criminal record; (4) threatening the community's safety and well-being by not keeping an accurate account of his activities; (5) visiting his wife, which was prohibited by Woodworth's verbal directive; (6) and visiting the library, which is a place frequented by children under eighteen-years-old. Def.'s Statement ¶ 21; Dkt. No. 25-3 at 60.
On January 11, 2010, Woodworth served Scott with a Notice of Violation. Def.'s Statement ¶ 27; Woodworth Decl. ¶ 36; Dkt. No. 25-3 at 33. A preliminary hearing was scheduled for January 14, 2010, which Scott waived. Def.'s Statement ¶¶ 28-29; Dkt. No. 25-3 at 26, 60.
On January 27, 2010, the final parole revocation hearing was held. Def.'s Statement ¶ 30; Dkt. No. 25-3 at 26. At the hearing, Scott pled guilty to having "violated rule 13AA of the conditions governing [his] release to parole supervision in that on or around January 8th, 2010 during an office report [he] failed to possess [his] journal as directed." Def.'s Statement ¶ 31; Dkt. No. 25-3 at 66-70. The remaining charges were dismissed. Def.'s Statement ¶ 31; Dkt. No. 25-3 at 70. In accordance with Scott's plea, Administrative Law Judge ("ALJ") Stanton recommended that the Parole Board impose an eighteen-month assessment period on Scott. Def.'s Statement ¶ 32; Woodworth Decl. ¶ 34.
In his complaint, though inartfully pled, Scott contends that Woodworth violated: (1) his Fourth Amendment right to privacy by searching his dwelling without probable cause or consent; (2) the exclusionary rule of the Fourth Amendment by using evidence obtained from the search at the parole revocation hearing, including Ms. Scott's statements; (3) his Eighth Amendment right against cruel and unusual punishment; (4) his Fourteenth Amendment due process rights by revoking his parole without warrant or notice; and (5) his Fourteenth Amendment equal protection rights by displaying discriminatory animus against him in order to effect his parole revocation. Compl. at 5-6. Scott also alleged that Woodworth conspired with Hoyt to deprive him of his equal protection rights. Id. at 6.
Woodworth contends that Scott's complaint should be dismissed because: (1) the Eleventh Amendment bars the action as asserted against Woodworth in his official capacity; (2) there are no material issues of fact regarding Scott's privacy claims; (3) neither the exclusionary rule nor marital privileges apply to Scott's parole revocation hearing; (4) Scott's Eighth Amendment claim is conclusory and unsubstantiated; (5) Scott's Fourteenth Amendment claims are conclusory and unsubstantiated; (6) Scott's conspiracy claim is implausible; (7) he is entitled to ...