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Victory v. Grant

United States District Court, W.D. New York

April 24, 2017

ALBERT LOPEZ VICTORY, Plaintiff,
v.
THOMAS P. GRANT, Special Assistant to the Chair of the Board of Parole, TERRANCE X. TRACY, Chief Counsel to the Chair of the Board of Parole, and KENNETH E. GRABER, Commissioner of the Board of Parole, Defendants.

          DECISION AND ORDER

          WILLIAM M. SKRETNY United States District Judge.

         I. INTRODUCTION

         In this civil rights action brought under 42 U.S.C. § 1983, Plaintiff Albert Lopez Victory, a former inmate of the New York Department of Corrections and Community Supervision (“DOCCS”), alleges that remaining Defendants Thomas P. Grant, Terrance X. Tracy, and Kenneth E. Graber violated and conspired to violate his right to due process in connection with the rescission of his grant of parole. Pending before this Court is Grant and Tracy's Motion for Summary Judgment, which is grounded in the doctrines of absolute and qualified immunity. (Docket No. 278.) Also pending is Victory's Motion to Set a Trial Date. (Docket No. 277.) For the following reasons, Grant and Tracy's motion is denied, and Victory's motion is granted.

         II. BACKGROUND

         Now in its fifteenth year, this litigation has a long and complex history. The facts have been exhaustively reported in various decisions, the most pertinent of which are this Court's decision resolving the defendants' summary judgment motion, see Victory v. Pataki, No. 02-CV-0031, 2013 WL 4539296 (W.D.N.Y. Aug. 27, 2013), and the Second Circuit's opinions affirming that decision in part, reversing it in part, and remanding for further proceedings, see Victory v. Pataki, 814 F.3d 47 (2d Cir. 2016) and Victory v. Pataki, 632 Fed.Appx 41 (2d Cir. 2016) (summary order). This Court presumes familiarity with these decisions. For present purposes, the facts can be summarized as follows:

         In 1970, Victory was convicted of felony murder stemming from the 1968 slaying of a police officer outside of a New York City discotheque. See People v. Bornholdt, 33 N.Y.2d 75, 350 N.Y.S.2d 369, 305 N.E.2d 461 (1973); Victory v. Bombard, 570 F.2d 66, 67 (2d Cir. 1978). He was sentenced to a term of 25 years-to-life in prison and committed to DOCCS's custody. But in 1978, Victory escaped his handlers while away from the correctional facility for dental treatment. He remained at large for three years until he was apprehended in California and returned to DOCCS's custody. Victory was thereafter a model prisoner.

         On January 11, 1999, a two-member panel of the New York Board of Parole considered Victory for parole. Graber and Lawrence Scott were the Commissioners assigned to the panel. They advised Victory that they had reviewed his entire file, which included favorable recommendations from eight correctional officers and numerous references to Victory's 1978 escape. There were no letters opposing parole and no letters from the judge or prosecutors involved in the case. Following the hearing, during which no mention was made of the escape, Graber and Scott granted Victory parole.

         What happened next forms the basis of this case. The grant of parole was not well received by the governor's office and high ranking officials at the Board of Parole, because it was inconsistent with New York Governor George Pataki's stance that violent felons should not be granted parole. The Second Circuit's opinion contains a complete recitation of the undisputed evidence concerning what occurred after the grant of parole. See Victory, 814 F.3d at 54-58. That full discussion is incorporated herein.

         Essentially what occurred is that Grant, who was Special Assistant to the Chair of the Board of Parole, learned of the panel's favorable decision and notified Tracy, who was counsel to the New York Division of Parole. Grant subsequently notified other state officials, including those tied to the governor's office. He also sent Victory's parole hearing file to non-party Katherine Lapp, the governor's Director of Criminal Justice.

         Lapp met with Grant and Tracy on January 13, 1999, to discuss whether proper procedures had been followed during the parole hearing, specifically noting that the transcript of the hearing did not contain references to Victory's 1978 escape. Without yet talking to Graber, the three then allegedly contrived a false narrative whereby Graber would claim ignorance of Victory's escape and that ignorance would be used to rescind the grant of parole. Later that day, Lapp also solicited a letter in opposition to the grant of parole from the prosecutor in Victory's case. The prosecutor soon after submitted a letter discussing Victory's escape and strongly opposing Victory's parole.

         Telephone records confirm that no one spoke to Graber until January 14, 1999, the day after Lapp, Grant, and Tracy met and identified Graber's lack of knowledge as grounds for rescission, which suggests that Lapp, Grant, and Tracy concocted their plan without actually knowing whether Graber knew of Victory's escape. Graber, Grant, and Tracy, along with others, then allegedly followed this course to initiate and conduct rescission proceedings supported primarily by Graber's alleged ignorance of Victory's escape.

         On March 9, 1999, a three-member panel of the Board of Parole, which included Graber, conducted a parole rescission hearing, at which the prosecutor's letter and Graber's lack of knowledge of the escape were discussed. The only evidence offered concerning Graber's lack of knowledge of the escape was Graber's own unsworn statement that the original panel did not know about the escape at the time it granted parole. After the hearing, the panel unanimously voted to rescind Victory's parole, citing both the prosecutor's letter and Graber's lack of knowledge of the escape as “new materials” not available to the original panel.

         On November 8, 1999, the Board of Parole Appeals Unit reversed the second panel's rescission determination, finding that the panel's reliance on Graber's unsworn statement violated Victory's due process rights. The Appeals Unit also determined that information concerning the escape was not new information, since the original record contained numerous references to it. Consequently, the Appeals Unit remanded the matter for a new rescission hearing before a new panel of commissioners who lacked any prior involvement in Victory's case.

         After further state court and administrative proceedings that are not at issue here, Victory was eventually released to parole supervision on October 18, 2005.

         III. ...


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