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Doe v. Annucci

United States District Court, S.D. New York

July 15, 2015

JOHN DOE and JANE DOE, Individually and on behalf of M.S. an Infant, as Next Friends, Plaintiffs,
ANTHONY ANNUCCI, Acting Commissioner of the New York State Department of Corrections and Community Supervision; JOSEPH LIMA, Bureau Chief of the Manhattan VI Area Office of the New York State Division of Parole; Parole Officer EMILY SCOTT; Parole Officer SIMON VALERIO; Parole Officer REBECCA RODRIGUEZ; Parole Officer RENNIE RODRIGUEZ; Senior Parole Officer RICHARD ROSADO; and Senior Parole Officer JAMES CAPPIELLO, Defendants.


PAUL A. ENGELMAYER, District Judge.

Plaintiff John Doe was convicted of sexual offenses against a teenage girl and served more than eight years in prison. After Doe was released on parole, Doe's wife, Jane Doe, gave birth to a son, M.S. In the years that followed, the Department of Corrections and Community Supervision ("DOCCS") applied one of Doe's special parole conditions to bar him, during two distinct time periods, from having any contact with his infant son. These periods totaled more than one year.

John Doe, Jane Doe, and M.S. bring suit against eight state personnel associated with DOCCS, claiming that DOCCS's actions violated their rights to substantive due process, intimate association, and procedural due process, and that each individual defendant personally participated in these actions. Seven of the eight defendants now move to dismiss, asserting mootness, immunity, and failure to state a claim. For the following reasons, the motions to dismiss are granted as to defendants Rebecca and Rennie Rodriguez for lack of personal involvement in the alleged constitutional violations, but are denied as to all other defendants.

I. Background

A. Factual Background[1]

John Doe, age 50, resides in the Bronx, New York. FAC ¶¶ 10, 22. He works for a company that provides foliage for special events and film shoots. Id. ¶ 34.

In the early 2000s, Doe lived with his then-wife, Beverly Martin; their four children, who are now between the ages of 15 and 28; and Martin's niece, now 26. Id. ¶¶ 22, 24. Doe was accused of engaging in oral and vaginal sex with Martin's niece in 2002 and 2003, when she was 13 and 14 years old. Id. ¶ 24. On May 11, 2005, a jury convicted Doe of one count of second-degree rape, one count of second-degree criminal sexual acts, and one count of endangering the welfare of a child. Id. Doe maintains his innocence; his conviction is still on appeal. Id.

On November 9, 2005, Doe and Martin divorced. Id. ¶ 25. On September 22, 2007, while incarcerated, Doe married Jane Doe, a woman he had known for 25 years. Id.

On November 2, 2011, after serving more than eight years in prison, Doe was released on parole supervision. Id. ¶¶ 24, 27. He will be on parole until March 2, 2016. Id. ¶ 28. Upon release, Doe moved into an apartment with his wife, Jane Doe. See id. ¶ 37.

The conditions of Doe's parole include that he "will have no contact with any person under the age of eighteen, without the written permission of the supervising parole officer." Id. ¶ 29, Exs. B-C. To obtain permission to have contact with his youngest daughter, L.S., who was 12 years old at the time of his release, Doe filed a petition in Bronx Family Court. Id. ¶ 31, Ex. D. Martin, L.S.'s mother, consented to this request. Id. On February 1, 2012, the Bronx Family Court granted Doe's petition and authorized unsupervised visitation with L.S. Id.

In September 2012, Jane Doe gave birth to a son, M.S. Id. ¶ 36. Soon after, John Doe successfully completed substance-abuse and sex-offender treatment programs at the New York Center for Addiction Treatment Services ("NYCATS"), as required by DOCCS. Id. ¶¶ 32-33. His attendance rate in that program was 100%; the Assistant Director found that he presented a low risk of recidivism; and, upon completion, he was invited to be a peer mentor. Id. ¶¶ 33, 39.

Notwithstanding those facts, on October 4, 2012, DOCCS Parole Officers Emily Scott, Richard Rosado, and James Cappiello informed Doe that he was not permitted to reside with minor children, was therefore required to move out of his family's apartment immediately, and was not allowed to have any contact with his month-old son, M.S., until such visitation had been approved by the family court and by Officer Scott. Id. ¶¶ 37-38, Ex. E. That day, Doe moved into a homeless shelter. Id. ¶ 38.

On October 5, 2012, Doe filed a petition for visitation with M.S. in Bronx Family Court. Id. ¶ 40, Ex. F. Jane Doe consented to the petition. Id. However, on March 12, 2013, the Bronx Family Court dismissed Doe's petition without prejudice because "the conditions of [his parole] indicate that he is not to live in the same home as a child under the age of 18." Id. ¶ 41, Ex. F.

On January 24, 2013, Scott called Mary Osborne, Deputy Director of the Sex Offender Management Unit, to discuss Doe's parole conditions. Id. ¶ 44. Osborne recommended that John and Jane Doe both be evaluated by NYCATS, and that Scott discuss the results with Capiello and Bureau Chief Joseph Lima. Id. On January 29 and February 2, 2013, a NYCATS social worker met with Doe "to assess his suitability to return to the home of his wife." Id. ¶ 45, Ex. G. The social worker recommended that Doe "be permitted to reside with his wife, " explaining that "[c]ohabitation with a partner of the opposite sex" is "conducive to the principles of relapse prevention" because it is "a protective factor for those who commit sexual offenses" and ensures that Doe has "someone who can offer support if needed." Id.

On February 7, 2013, based on the social worker's recommendation and on Doe's "extremely low risk of reoffending, " Scott notified Doe that he could return to his family's apartment. Id. ¶ 46. While living there, Doe "was an active husband and father" and "complied with all of his parole conditions." Id. ¶¶ 47-48.

In June and July 2013, Rosado instructed Scott to review Doe's case and confirm that he was permitted to reside with his family. Id. ¶¶ 51-52. On August 6, 2013, Lima, in a change of course, instructed Rosado to ensure that Doe left his family's apartment. Id. ¶ 53. On August 22, 2013, Scott notified Doe that he was not authorized to reside with his son, M.S., who was then 11 months old, and "would have to move back to a homeless shelter." Id. ¶ 54. On September 5, 2013, another officer informed Doe that he would be arrested for a parole violation if he did not move out of his family's apartment immediately. Id. ¶ 55. Doe returned to the homeless shelter that day. Id. Doe was later permitted to move into a studio apartment. Id. ¶ 73. To enable the family to manage rent for two apartments, however, Jane Doe and M.S. moved into a one-bedroom apartment with Jane Doe's mother. See id. ¶¶ 73-74.

On October 2, 2013, in response to a letter from an attorney representing Doe, Lima commenced an investigation to address Doe's request to have contact with M.S. Id. ¶¶ 61-62. Pursuant to a Protocol that DOCCS adopted in August 2013, [2] the agency had 45 days to complete the investigation. Id. ¶ 62, Ex. H. The officers involved in the investigation included Lima, Rosado, Scott, Rennie Rodriguez, Rebecca Rodriguez, and Simon Valerio, who was assigned to be Doe's primary parole officer in September 2013. See id. ¶¶ 56, 63-72. In support of Doe's request to return to his family's apartment, Jane Doe "express[ed] her strong desire to live with her husband" and told the officers that she "fe[lt] completely safe with [Doe] residing with their son." Id. ¶ 72. Martin also provided both oral and written statements expressing no objection to Doe's living with M.S., and L.S. told the officers that "she has never had a problem with her father." Id. Further, a clinical evaluation based on extensive psychological testing reported that Doe "did not make the criteria for pedophilia" and presented "a low or very low risk of sexual recidivism." Id. ¶ 75, Ex. J. The clinician therefore recommended that Doe be allowed to reside with his wife and infant child. Id. ¶ 77. The sex-offense victim, however, asked Officer Rebecca Rodriguez why Doe should "live happy and comfortable when he took something from [her] that [she] can't get back." Id. ¶ 72.

On February 21, 2014, following a lengthy and unexplained delay, Lima issued a one-paragraph order denying Doe's request to have contact with M.S. See id. ¶¶ 78-82, Exs. L-M. Noting that "[t]he victim's perspective is always important, " the determination observed that Doe's "crimes occurred within the family constellation" and stated that Doe "was extremely manipulative and engaged in behaviors that involved extensive grooming, intimidation and coercion of the 13 year old victim." Id. ¶ 82. Lima's determination also expressed doubt as to whether Doe "has shown true progress in treatment" and concern about Doe's "daughter who is the same age as the victim in the instant offense." Id. Lima therefore concluded that authorizing any contact between Doe and M.S. would present "an unreasonable risk" and "would not be in the best interest of the child." Id. ¶¶ 82-83.

On April 3, 2014, Doe notified William Hogan, a Regional Director of DOCCS, of his intention to appeal Lima's decision. Id. ¶ 85. Pursuant to the Protocol, Hogan scheduled a parental case conference with John and Jane Doe for May 5, 2014. Id. ¶ 86.

On April 25, 2014, the Does filed the lawsuit now pending before this Court. See Dkt. 1. The Does also sought emergency relief, Dkt. 6-9; that application was the subject of a series of hearings before this Court, and the Court expressed an interest in obtaining Hogan's decision before ruling on the Does' application, see Dkt. 48, at 4-5.

On May 22, 2014, Hogan issued an order reversing Lima's decision and "allow[ing] [Doe] contact with [M.S.]." FAC ¶ 87, Ex. 0. The order stated that it "may result in possible reunification with his son in the marital household, " but that Doe "is still subject to the original condition of his release." Id. Ex. 0. Further, Hogan stated that the "decision does not preclude any future decision to bar [Doe's] contact with his son based on emerging issues, conditions or circumstances which would indicate to a parole officer that he is likely to or has sexually reoffended any child." Id.

In response to an email from Doe's counsel, Hogan later clarified that his decision did not define the "nature and type of contact" Doe could have with M.S. Id. ¶ 88, Ex. P.

On June 4, 2014, Doe's parole officer modified his parole conditions to "allow[] unrestricted contact" between Doe and his minor children, M.S. and L.S. Id. ¶ 89, Ex. Q. Since then, John Doe has resided with Jane Doe and M.S. without incident. Id.

B. Procedural History

On April 25, 2014, plaintiffs commenced this case by filing a complaint, anonymously and under seal, in this District. See Dkt. 1-5. On May 2, 2014, plaintiffs moved for a temporary restraining order and preliminary injunction. Dkt. 6-9. That motion was withdrawn after DOCCS authorized contact between Doe and M.S. on May 22, 2014, see Dkt. 45, and revised Doe's parole conditions to allow unrestricted contact on June 4, 2014, see Dkt. 52, 56-58.

On June 26 and August 15, 2014, defendants Rosado and Scott each filed an answer to the complaint. Dkt. 68, 94. On July 2 and July 30, 2014, the remaining defendants filed motions to dismiss. Dkt. 73, 82, 86.

On September 4, 2014, plaintiffs, with leave of the Court, filed the FAC. Dkt. 100. The FAC asserts three claims: violation of the Does' substantive due process rights, see FAC ¶¶ 90-97, freedom of association, see id. ¶¶ 98-104, and procedural due process, see id. ¶¶ 105-12. It seeks relief including a declaration that the "restriction on John Doe's contact with M.S. was unconstitutional, " a "permanent injunction barring enforcement of the challenged parole condition as applied to John Doe, " monetary damages, and attorneys' fees and costs. Id. at 30. As defendants, the FAC names Anthony Annucci, the Acting Commissioner of DOCCS; Lima, Bureau Chief of the Manhattan VI Area Office of the New York State Division of Parole; and Parole Officers Cappiello, Rebecca Rodriguez, Rennie Rodriguez, Rosado, Scott, and Valerio. Id. ¶¶ 13-21. Shortly thereafter, on September 8, 2014, plaintiffs voluntarily dismissed their claims against Hogan, Milza Mercedes, Tina Stanford, and Terrence Tracy, who had been named as defendants in the original complaint. See Dkt. 104.

Of the eight defendants named in the FAC, seven moved to dismiss in four separate motions, and one, Scott, filed an answer.

Specifically, on September 18, 2014, Annucci filed a motion to dismiss, Dkt. 112, and a supporting memorandum of law, Dkt. 114 ("Annucci Br."). The same day, Rosado separately moved to dismiss. Dkt. 116, 124 ("Rosado Br."). Also on September 18, 2014, Lima, Rebecca Rodriguez, Rennie Rodriguez, and Valerio (collectively, the "Lima defendants") jointly moved to dismiss. Dkt. 119, 121 ("Lima Br."). Around the same time, on September 26, 2014, Scott filed her answer. Dkt. 127. On October 2, 2014, plaintiffs filed a memorandum of law in opposition to the three motions to dismiss that had been filed on behalf of six defendants. Dkt. 130 ("Doe Br."). On October 9, 2014, Annucci and the Lima defendants submitted their replies. Dkt. 131 ("Annucci Reply Br."), 133 ("Lima Reply Br.").

On December 23, 2014, after receiving multiple extensions of time, Cappiello filed a motion to dismiss, Dkt. 141, and a supporting memorandum of law, Dkt. 143 ("Cappiello Br."). Finally, on January 20, 2015, ...

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