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Victory v. Pataki

United States District Court, Second Circuit

August 25, 2013

GEORGE PATAKI, et al., Defendants.


WILLIAM M. SKRETNY, Chief District Judge.


Plaintiff Albert Lopez Victory ("Plaintiff"), a former inmate in the care and custody of New York Department of Corrections and Community Supervision ("DOCCS"), brings this action pursuant to 42 U.S.C. § 1983 and the New York State Constitution, alleging that George Pataki, Brion D. Travis, Thomas P. Grant, Mike Hayden, Ronald P. White, Terrance X. Tracy, Kenneth E. Graber, George Chard, Douglas C. Smith, Salvatore Perritano, and Kevin McCarthy (collectively, the "State Defendants"), and the City of Syracuse, Thomas Murfitt, Rory D. Gilhooley, John Falge, Dennis DuVal, and Gary Miguel (collectively, the "Syracuse Defendants") conspired to deny him parole and to cause him to violate his parole once it had been granted. (2d Am. Compl. (Docket No. 162) ¶¶ 2, 101-129.)

Presently before this Court are the State Defendants' and the Syracuse Defendants' motions for summary judgment.[1] Having considered the parties' written submissions and the applicable law, this Court grants both the State Defendants' and the Syracuse Defendants' motions, and dismisses the amended complaint.


A. Factual Background and Procedural History

The following facts are not in dispute unless otherwise noted. The Court has considered whether the parties have proffered admissible evidence in support of their positions and has viewed the facts in the light most favorable to Plaintiff. See Spiegel v. Schulmann , 604 F.3d 72, 77, 81 (2d Cir. 2010).

Plaintiff's case comes before this Court with a complex procedural history, including numerous petitions and appeals within the state system, and subsequent affirmances and reversals. The Court will therefore only recite the facts relevant to the instant motions and in chronological order as applicable.

1. The Parties

a. The State Defendants

George Pataki ("Pataki or "Gov. Pataki") was the Governor of New York State from 1995 to 2006. Brion Travis ("Travis" or "Chair. Travis") was the Chairman of the New York State Board of Parole (the "Parole Board" or the "Board") from March 18, 1995 to February 29, 2004, later becoming the Chief Executive Officer of the Division of Parole ("DOP"). During this time, Thomas Grant ("Grant" or "Asst. Grant") was Special Assistant to Travis, the Chairman of the Board of Parole.

In 1999 Mike Hayden ("Hayden") was the Acting Chief of Operations of the DOP, later becoming the Director of the Central Adirondack Region of the DOP in 2000. Ronald White ("White" or "Dir. White") was the Director for Upstate Parole Operations for DOP. Terrance Tracy ("Tracy") served as Counsel to DOP. From October 1995 to April 2002, Kenneth Graber ("Graber" or "Commr. Graber") was a member/commissioner of the Board of Parole.

Kevin McCarthy ("McCarthy" or "Parole Officer McCarthy") was a Parole Officer with DOP, assigned to the Absconder Search Unit and handled Bureau of Special Services Cases in the Syracuse area. George Chard ("Chard" or "Parole Officer Chard") was a Senior Parole Officer employed by DOP. Douglas Smith ("Smith" or "Supr. Smith") was Area Supervisor for Syracuse and Utica DOP Offices. (Smith Decl. ¶ 1.) Plaintiff disputes that Smith's position covered both offices, and asserts that Robert Kent was the Area Supervisor for the Syracuse DOP Office. (Pl. Ex. JJJ (Kent Dep.) at 25.) Salvatore Perritano ("Perritano" or "Parole Officer Perritano") was a Parole Officer with DOP.

At all times relevant to the instant action, the Board of Parole consisted of up to sixteen members appointed by Gov. Pataki. During a Board member's term of service, he or she may be removed by the Governor for cause after an opportunity to be heard. The member designated as Chairman of the Board is selected by and serves at the pleasure of the Governor. The Board of Parole possesses authority regarding whether inmates should be granted parole, and whether parolees should have their parole revoked, while the DOP prepares inmate cases for parole review and supervises parolees when they are released.

During his tenure as Governor, Pataki had a stated policy of instituting reforms to the laws of New York State to eliminate parole for all individuals sentenced as violent felons, which he attempted to implement by asking the State Legislature to change the laws regarding parole. Pataki was successful during his first term, ending certain types of early release and work release for violent felons by executive order. Also during Pataki's first term, the legislature amended the statutes regarding the sentencing of repeat felony offenders, which eliminated parole for such prisoners. Pataki did not involve himself in the day to day operations of the DOP or Board of Parole.

b. The Syracuse Defendants

The Syracuse Defendants are comprised of the City of Syracuse, Syracuse Police Officer Thomas Murfitt ("Murfitt" or "SPD Officer Murfitt"), Syracuse Police Officer Rory Gilhooley ("Gilhooley" or "SPD Officer Gilhooley") and former Chiefs of the Syracuse Police Department Dennis DuVal, Gary Miguel, and John Falge.

2. Plaintiff's History, Parole Review, and Release

Plaintiff entered DOCCS custody on May 26, 1970, to serve a twenty-five year to life sentence upon his conviction of felony murder in New York County Supreme Court, stemming from his involvement in the shooting death of a police officer outside a New York City discotheque on October 7, 1968. The conviction was upheld by the New York Court of Appeals. People v. Bornholdt , 33 N.Y.2d 75 (1973).

In 1978, Plaintiff escaped from prison and remained at large for nearly three years until he was apprehended in the State of California and returned to DOCCS custody in New York.

Plaintiff first became eligible for release to parole supervision in 1997, and his initial application was denied. Between 1997 and 1999, Plaintiff appeared twice before the Parole Board, with each panel consisting of two members/commissioners. Neither of those panels could reach a consensus for granting or denying parole, thus leaving the issue of Plaintiff's release to parole supervision unresolved.

Shortly after those appearances, Plaintiff's attorney, Myron Beldock, Esq. ("Beldock"), telephoned Tracy, DOP's counsel, to discuss the previous Board panels which had been deadlocked. While Tracy was familiar with Plaintiff's name from his tenure as an Assistant Attorney General, Tracy was not involved in Plaintiff's previous litigation, the murder conviction, or the parole proceedings. Beldock inquired whether it would be possible for Plaintiff to appear before a three-member panel, so as to avoid the possibility of another deadlock, and sent a letter to Tracy to the same effect. Tracy shared that letter with Chair. Travis.

Tracy also discussed Plaintiff's case with Board Commissioner Mary Ellen Jones, who informed Tracy of Plaintiff's murder conviction. Tracy, Asst. Grant, and Dir. White had all, in some manner, become aware of Plaintiff's case prior to Plaintiff's next Parole Board appearance. Plaintiff's name had appeared on a list of high-profile cases due to the nature of his conviction, which was prepared by non-party Anthony Molik ("Molik"), the Facility Parole Officer at Attica Correctional Facility.

Plaintiff was again considered for parole release on January 11, 1999, by a twomember panel consisting of Commissioners Graber and Lawrence Scott. Graber states that he was not familiar with Plaintiff or his case prior to the January 11 hearing.[2] (Graber Decl. ¶ 5.)

Each commissioner would be assigned a particular parole application case, and, on the day of Plaintiff's hearing, Commissioner Scott was responsible for Plaintiff's case and conducted Plaintiff's interview.[3] Following that hearing, Commissioners Graber and Scott voted to grant parole release to Plaintiff with an open date of March 11, 1999. Graber states that at the time the decision was made to release Plaintiff, he was unaware of Plaintiff's thirty-four month escape from prison. (Graber Decl. ¶ 9.) Although not specifically enumerated in N.Y. Exec L. § 259-i (setting forth mandatory considerations for discretionary release on parole), a prior escape is generally considered a negative component of an inmate's institutional record, which must be considered by the Parole Board in determining whether to grant an inmate parole.[4] (Travis Decl. ¶ 17.)

Asst. Grant was made aware of the results of Plaintiff's parole hearing from a DOP computer printout, while Tracy became aware of of the results on the day of the hearing or the following day. Subsequently, Tracy reviewed Plaintiff's "central file, " a less complete version of the DOP's "facility file, " which is maintained at the correctional facility where the inmate is housed, in this case, Attica Correctional Facility. (Tracy Decl. ¶¶ 11, 14; White Decl. ¶ 16.) Tracy had not previously reviewed either of Plaintiff's DOP files. A few days following Plaintiff's grant of parole, Chair. Travis was notified by Tracy that Commr. Graber, in reviewing Plaintiff's case, had inadvertently overlooked Plaintiff's escape from custody in his file.

Katherine Lapp ("Lapp" or "Dir. Lapp"), Director of Criminal Justice for the New York State Division of Criminal Justice Services ("DCJS") first learned of Plaintiff's parole decision sometime in 1999. Lapp's role as Director of DCJS was to oversee the state police, DOCCS, DOP, and Crime Victims Board, in addition to other state criminal justice agencies.

According to the State Defendants, Chair. Travis suggested to Asst. Grant that he call Lapp to notify her that Plaintiff had been released on parole. (Grant Decl. ¶ 11.) Plaintiff disputes this, claiming that Travis did not recall telling Grant to notify Lapp of the Parole Board's decision, and that Travis only "knew that [Lapp] was involved after the [parole] case was decided...." (Pl. Ex. N (Travis Dep.) at 77, 124.) In any event, Grant called Lapp, summarized Plaintiff's case, and provided the information regarding Plaintiff's escape from custody in the 1970s. Later, Lapp phoned Asst. Grant and requested to see the file that the two parole commissioners had before them when they voted to release Plaintiff. Grant arranged to have Plaintiff's facility file sent to the DOP Albany office from Attica Correctional Facility. At some point, Hayden also instructed Dir. White to arrange for Plaintiff's facility file to be sent from Attica to the DOP in Albany. Although Asst. Grant states that he informed Chair. Travis of the file being sent to Albany, Travis testified that he was unaware of any such request. (Grant Decl. ¶¶ 14-15; Pl. Ex. N (Travis Dep.) at 119.)

A portion of Plaintiff's facility file was initially sent to DOP by fax. Asst. Grant states that "after approximately three hours of [incoming] faxing I put the incomplete faxed file together in a box and went to the [DCJS] to deliver the file to Director Lapp. I was accompanied by Terrence Tracy...." (Grant Decl. ¶ 16.) According to the State Defendants, the Plaintiff's facility file was initially sent by fax because a snow storm prevented the facility file from being physically transported from Attica to Albany on January 12 and 13, 1999. (White Decl. ¶ 17; State Def. Reply (Docket No. 253), Exs. B-C.)

When Commr. Graber was informed that the Plaintiff's file was being sent to Albany, he phoned Tracy, who was in Asst. Grant's office at the time. It was at this point, according to the State Defendants, that Tracy and Grant had learned that Graber had overlooked Plaintiff's escape history in the parole file. Sometime thereafter, Tracy notified Chair. Travis that Graber was unaware of the escape, and informed Travis that he would be discussing the case with Lapp.

Before the complete copy of Plaintiff's facility file was received at the DOP central office in Albany, Grant and Tracy took the incomplete file, which had arrived by fax, to DCJS to deliver the file to Lapp at her request. Once there, Lapp instructed Grant and Tracy to review the complete facility file when it arrived and report their findings to Chair. Travis. Tracy had no further conversations with Lapp regarding Plaintiff's case.

The physical facility file was eventually delivered to Albany, although neither party specifies when that occurred. Tracy also directed that a separate file maintained by the DOP Bureau of Special Services be brought to him, which arrived on January 15, 1999.

In 1995, the Parole Office at Southport Correctional Facility wrote a letter to Robert Morganthau, then New York County District Attorney, whose office had prosecuted Plaintiff. That letter, referred to herein as the "Southport Letter, " was drafted prior to Plaintiff's first parole appearance scheduled in 1997, and requested information from the New York County District Attorney's Office that would be germane to Plaintiff's hearing, such as Plaintiff's history, conduct, and statements from the victims of Plaintiff's crime.[5] After having met with Tracy, Lapp faxed a copy of the Southport Letter to James Kindler ("Kindler" or "ADA Kindler"), an Assistant District Attorney for New York County. Lapp phoned Kindler later to inquire whether he received the letter and whether he had made a decision to respond to it. (State Def. Ex. B (Lapp Dep.) at 118-120, 124-131.) She also testified that she recalled speaking to Kindler prior to faxing the letter. (Id. at 120.) Kindler testified that when Lapp called, she told him that Plaintiff had been granted parole, and asked if his office had any information that they could supply to the Parole Board relevant to Plaintiff's case.

On January 14, 1999, ADA Kindler wrote a letter addressed to Tracy at the DOP, opposing Plaintiff's release to parole ("Kindler Letter"). The letter was received on January 14 or the day after. In late January, 1999, Molik informed Beldock that the same letter had been sent to the DOP's Counsel's Office.

3. Rescission Hearing

After Plaintiff had been granted parole but before his scheduled release date of March 11, 1999, Hayden directed that Plaintiff not be provided with the results of the January 11, 1999 hearing. (Hayden Decl. ¶ 13; White Decl. ¶ 20.). Molik confirmed that he received such a direction, but did not remember from whom. (Def. Ex. C (Molik Dep.) at 99.)[6]

Following his review of Plaintiff's DOP files, Tracy met with Chair. Travis, and informed him that Commr. Graber had been unaware of Plaintiff's escape, that a letter had been received from the District Attorney's Office, and that Tracy had reviewed the DOP file maintained by the Bureau of Special Services regarding the Plaintiff, which had not been available to the Parole Board panel at the time of Plaintiff's release. Tracy did not reveal the contents of that file to Travis.

Chair. Travis discussed with Tracy the mechanism for initiating a rescission hearing and the parameters of such a hearing.[7] New York regulations provide that a rescission hearing is initiated by DOP "operations, " or parole officers. See 9 N.Y.C.R.R. § 8002.5(b)(1). All further communications between Tracy and Chair. Travis concerned the status of the Plaintiff's litigation initiated with regard to his parole status.

Ultimately a decision was made to hold a rescission hearing in Plaintiff's case, and Hayden then contacted DOP personnel at Attica to inform them of that decision. The parties dispute, however, who initially recommended that a rescission hearing be held. The State Defendants urge that Molik made the recommendation, who testified that he ordered a rescission hearing based on the information contained in the Kindler Letter. (Def. Ex. C (Molik Dep.) at 139-142.) Plaintiff does not dispute that Molik made the official order, but states that Hayden initially advised Molik that "a rescission hearing [was] in order" after Tracy indicated that there was new or unknown information, i.e. Plaintiff's escape, that had not been considered at the original parole hearing. (Pl. Ex. P (Hayden Dep.) at 64-65.) Accordingly, Plaintiff was served with the notice that he had been granted parole, along with a notice of temporary suspension informing him that his release would be suspended.

Defendants Graber, Hayden, and Tracy were not involved in the decision to conduct the rescission hearing, but Hayden testified that Plaintiff's case and the unnoted escape were subjects of discussion between Hayden and Tracy prior to the decision being made to attempt to rescind Plaintiff's parole. (Graber Decl. ¶ 13; Hayden Decl. ¶ 13; Tracy Decl. ¶ 40; Pl. Ex. P (Hayden Dep.) at 64.)

According to the State Defendants, Chair. Travis did not involve himself in individual parole decisions and did not assign Board members to individual panels. (Travis Decl. ¶¶ 8-10.) Travis acknowledges that he became involved with Plaintiff's parole file after learning from Tracy that Plaintiff had been granted parole. (Travis Decl. ¶¶ 16-27.) The parties disagree as to the extent to which Travis was involved, but it is undisputed that Travis also did not take part in making the decision to schedule a rescission hearing for Plaintiff. (Id.; Tracy Decl. ¶ 16; Pl. Ex. Q (Tracy Dep.) at 153, 159-62; Pl. Ex. V (Graber Dep.) at 36-37.) Tracy did advise Chair. Travis on the legal parameters of a rescission hearing.

On February 3, 1999, Molik prepared a Rescission Hearing Report, recommending that a hearing be held based on the information contained in the Kindler Letter dated January 14, 1999. In March of 1999, Federal District Judge John F. Keenan ("Judge Keenan"), the former Assistant District Attorney who had originally prosecuted Plaintiff, also wrote a letter opposing Plaintiff's release ("Keenan Letter"). That letter was addressed and faxed to Gov. Pataki on March 8, 1999, and sent to the DOP on the same date. James McGuire ("McGuire"), then counsel to Gov. Pataki, testified that he may have spoken to Judge Keenan about Plaintiff's parole case, but had no recollection of any particular conversation. (State Def. Ex. E (McGuire Dep.) at 12, 46-47, 50-53.) Though McGuire did not recall discussing the Plaintiff's case with Gov. Pataki, he did discuss it with Dir. Lapp. In March, 1999, Lapp communicated to Chair. Travis her request that the Keenan Letter concerning Plaintiff be available in all future parole deliberations.

Commr. Graber was assigned to sit on the rescission hearing panel, which met at Attica in March, 1999. Whether Commr. Graber was assigned to the Attica March panel prior to the rescission hearing being scheduled is disputed by the parties. (Graber Decl. ¶ 14; Pl. Ex. V (Graber Dep.) at 77-78.) Typically, the composition of the parole panels is designated approximately one month prior to the date in which cases are heard. The names of the three commissioners sitting on the panel were provided to Dir. White prior to the hearing, but he had no role in assigning members to specific panels. Rather, assignments of Board members to individual panels were made by the secretary to the Board.

Prior to the rescission hearing, Dir. White was in contact with Molik regarding various procedural matters involved in the hearing. Molik made the preparations for presentation of Plaintiff's case to the three-commissioner parole panel, and his activity in preparing the case was independent of the Board.

On March 5, 1999, Tracy faxed a copy of the Kindler Letter to Beldock, Plaintiff's attorney. Immediately prior to the rescission hearing, Molik provided Beldock with a copy of the Keenan Letter. The rescission hearing was held on March 9, 1999, during which Plaintiff was represented by Beldock. Commr. Graber sat on the panel, and also testified as a witness against Plaintiff during the rescission hearing. (Pl. Ex. TT.) All three commissioners voted to rescind Plaintiff's parole, and Plaintiff received the Board's decision on March 11, 1999. Tracy also received a copy of the rescission hearing report. The decision indicated that the original release date was rescinded, parole was denied, and Plaintiff's next appearance would be in September, 2000. The decision stated that the Kindler and Keenan Letters were factors in the Board's determination to rescind parole.

4. Legal Challenges to the Rescission Hearing

After Plaintiff's parole was rescinded, he sought administrative review of the Board's decision through the Appeals Unit of the DOP's Counsel's Office. While that appeal was pending, Plaintiff petitioned for a writ of habeas corpus in Supreme Court, Wyoming County, in July, 1999, challenging the legality of his then-continuing detention. On September 27, 1999, Plaintiff's petition for writ of habeas corpus was dismissed without prejudice for failure to exhaust administrative remedies. (2d Am. Compl., Ex. A).

In November, 1999, the Board of Parole's Appeals Unit reversed the Board's decision to rescind Plaintiff's parole and directed that a new rescission hearing take place. (2d Am. Compl., Ex. B.) Prior to the new rescission hearing being conducted, Plaintiff renewed his habeas corpus petition in state court, and was granted relief in a Memorandum and Order dated December 15, 1999. Pursuant to that Memorandum and Order, Plaintiff was ordered released on parole "forthwith" by Acting Supreme Court Justice Mark H. Dadd. (Pl. Ex. NNNNN ("Dadd Decision").)

The DOP appealed the Dadd Decision to the Appellate Division, Fourth Department, which, on November 13, 2000, rendered an opinion reversing the decision below, finding that the writ had been prematurely granted and ordering that the Board conduct a second rescission hearing. People ex rel. Victory v. Herbert , 277 A.D.2d 933 (4th Dep't 2000). Leave to appeal that decision was denied on February 15, 2001, 96 N.Y.2d 705, rendering the Appellate Division's determination final, however, the DOP never implemented the order to schedule or conduct a second rescission hearing. Plaintiff was released to parole on December 28, 1999, and remained free until his parole violation some four months later.

According to the State Defendants, Gov. Pataki had initially heard about Plaintiff's parole from the news generated by the Dadd Decision in December, 1999. (Pataki Decl. ¶ 13.) Specifically, Pataki declared that he "had never heard of Albert Victory until a judge ordered that he be released in December of [1999]." (Id.) Pataki also testified that he was not aware of Plaintiff's first grant of parole in January, 1999, until the commencement of this lawsuit. (Pl. Ex. U (Pataki Dep.) at 35-36.)[8] Pataki recalls having been quoted in a newspaper article in December, 1999, regarding Plaintiff's release by judicial order, but is uncertain as to when in 1999 he became aware of the Plaintiff's parole case and release.

5. Parole Supervision in Utica, NY

When Plaintiff was released on parole pursuant to the Dadd Decision, the Board and parole officers imposed various conditions on Plaintiff, including periodic urine testing, abstaining from alcohol, electronic monitoring, seeking and maintaining employment, and identifying assets over $500.00. (State Def. Ex. F.) Dir. White declared that the special conditions of parole placed on Plaintiff "amounted to what [he] would call intensive parole supervision." (White Decl. ¶ 35.) Although the State Defendants claim that Hayden did not directly participate in arranging for the conditions of Plaintiff's parole, Hayden states that he "may have suggested possible conditions to Mr. White." (Hayden Decl. ¶ 20.). Hayden instructed his staff that Plaintiff be kept under close supervision, given the nature of the crime for which he was convicted and sentenced, as well as the fact that he had previously escaped from prison.

Hayden attended a meeting in New York City with Parole Officer Perritano to discuss Plaintiff's case with members of the DOP Special Services. Because the Dadd Decision ordered Plaintiff's immediate release, the DOP had less time than normal to prepare for Plaintiff's release to parole. Due to the shortened time period, Dir. White was directly involved in the preparations for Plaintiff's release, which included reviewing Plaintiff's central office file. Parole Officers Perritano and Chard were assigned to supervise Plaintiff out of DOP's Utica Office.

At that time Plaintiff indicated that he wished to live with his girlfriend, Susan Black, however, DOP had information that Ms. Black had a prior criminal record of her own, and was involved in Plaintiff's prison escape in 1978. Additionally, the State Defendants claim that there were questions as to Ms. Black's source of income, and DOP thus requested information regarding any assets jointly held by Plaintiff and Ms. Black. According to the State Defendants, the inquiry into Ms. Black's financial information was based on the concern that Plaintiff not reside with an individual who has been involved in illicit activity, as it would jeopardize Plaintiff's chances at leading a law-abiding life. If Ms. Black were to financially support Plaintiff, the DOP's policy is to be apprised of the source of the parolee's financial support. (Chard Decl. ¶ 9; Hayden Decl. ¶ 27-28; Perritano Decl. ¶ 8; Smith Decl. ¶ 11-12; White Decl. ¶ 34.) Further, Supr. Smith declared that Plaintiff would not be able to reside with Ms. Black unless the source of her income were disclosed, as she had no visible means of support. (Smith Decl. ¶ 11.) A September, 1996 Inmate Status Report indicates that Plaintiff intended to work for Ms. Black performing paralegal services if released on parole. (Pl. Ex. CCC.) It appears from the record that the issue regarding Ms. Black's financials was never resolved.

While Plaintiff resided in Ms. Black's home, Parole Officer Perritano routinely visited with him, as home visits are a common method of supervising parolees. Plaintiff was also required to obey a curfew. Neither Ms. Black nor Plaintiff ever complained to Supr. Smith of inappropriate conduct by DOP personnel during the home visits.

At one point, Perritano obtained a sample of Plaintiff's urine, which, according to Perritano, field tested positive for cocaine.[9] (Chard Decl. ¶ 11; Hayden Decl. ¶ 29; Perritano Decl. ¶ 10; Smith Decl. ¶ 17.) Plaintiff disputes that his drug test came back positive, and submits Perritano's parole notes indicating that Plaintiff tested positive for opiates and not cocaine. (Pl. Ex. NNN (Chrono. Notes) dated 1/6/00.))

Following the allegedly positive drug screen, Plaintiff was detained and handcuffed. According to the State Defendants, Supr. Smith was present in the Parole Office on that date and was informed of Plaintiff's positive test result. Smith contacted Dir. White to advise him of the same. Dir. White, in turn, contacted Hayden, who then contacted the Executive Director of DOP. (Chard Decl. ¶ 11-12; Hayden Decl. ¶ 29; Perritano Decl. ¶ 11-12; Smith Decl. ¶ 17, 19; White Decl. ¶ 37.) Plaintiff disputes the chain of communication, stating that Smith reported the result to Hayden, who personally notified Dir. White, and afterward the Executive Director of DOP was advised of the test result. (Smith Decl. ¶ 17; Pl. Ex. P (Hayden Dep.) at 12-127; Pl. Ex. HH (White Dep.) at 65-67.)

Supr. Smith stated that he "notified by [sic] Regional Office that we might have a problem with a screen." (Smith Decl. ¶ 17.) Specifically, there was a "discrepancy" with the first test, and, upon the urine being tested again, the same discrepancy appeared in the second test. A third test was ordered, which yielded the same problematic results. (Smith Decl. ¶¶ 17-18, 20.) The parole notes that indicate that Plaintiff tested positive twice and then negative before a full lab test was ordered. (Pl. Ex. NNN.). Specifically, the parole log notes, "(-) for opiates slight positive amphetamines maybe due to penicillin [unintelligible]." (Id.)

Plaintiff's initial drug screens apparently yielded inconclusive results due to a technical problem with the screening equipment. (Smith Decl. ¶¶ 17-18, 20.) Due to these discrepancies, a full lab test was authorized by either Smith or White at Beldock's request. In the interest of expediency, Plaintiff was taken to a hospital near Utica, New York, for yet another urinalysis, in lieu of sending Plaintiff's specimen to New York City for independent laboratory testing. The hospital screen came back negative. Following the negative result of the independent laboratory test, Plaintiff was released and no violation warrant was issued against him.

Parole Officers Chard and Perritano, and Supr. Smith all deny that they threatened Plaintiff during the urine testing incident. (State Def. Stmt. ¶¶ 175-177.) The portion of Plaintiff's deposition testimony that he relies on in disputing this fact does not indicate that Chard, Perrtaino, or Smith threatened Plaintiff, but that several parole officers (including those who are not parties in this action) were "laughing and celebrating [Plaintiff's violation]." Plaintiff could not recall what specifically was said, however. (Pl. Ex. NN (Victory Dep.) at 166-169.)

After one month of being supervised out of the Utica DOP Office, Plaintiff requested that he be allowed to move to Syracuse. His request was approved, and his parole supervision was transferred from Utica to the Syracuse DOP Office. Neither Chard nor Perritano supervised Plaintiff after he relocated to Syracuse. Smith, Chard, and Perritano all determined that Plaintiff's performance while being supervised on parole by the Utica DOP Office was satisfactory.

6. Transfer to Syracuse

When Plaintiff arrived in Syracuse in January, 2000, he resided in an apartment at the Regency Towers, and later moved to a two-bedroom house at 104 Lacy Place, Syracuse, New York. Parole Officer McCarthy was responsible for Plaintiff's supervision in Syracuse. Plaintiff was McCarthy's only parolee under his supervision at the time.

When Plaintiff relocated, he was given new special conditions of release to parole supervision, which he acknowledged and signed. Such conditions included, among other things, that Plaintiff abstain from use and possession of alcoholic beverages, not to enter any establishment where alcohol is served or sold for on-site consumption, and to fully comply with all motor vehicle and traffic laws. (Syr. Def. Ex. (Docket No. 230) D.) Syracuse parolees had similar parole conditions, including the prohibition of alcohol consumption, and at no time did Parole Officer McCarthy give Plaintiff permission to drink alcohol. Although Commr. Graber testified that the language prohibiting Plaintiff from entering a bar as a special condition might be ...

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