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Gordon v. Semrug

United States District Court, W.D. New York

May 23, 2017

ERIC M. GORDON, Plaintiff,


          WILLIAM M. SKRETNY United States District Court Judge


         In this action under 42 U.S.C. § 1983, pro se Plaintiff Eric M. Gordon brings suit against Defendants Martin Semrau and Melissa Himmelsbach, [1] who served as Plaintiff's parole officers, and Defendant Cynthia Mooney, who served as the Parole Specialist at a hearing where it was determined that Plaintiff had violated his parole, alleging that Defendants violated his constitutional rights by designating him as a discretionary sex offender.[2] Presently before this Court is Plaintiff's Motion for Summary Judgment and Defendants' motion for the same relief. For the following reasons, Defendants' motion is granted and Plaintiff's motion is denied.

         II. BACKGROUND [[3]]

         This suit was initially filed on April 29, 2014. At that time, Plaintiff was an inmate of the Franklin Correctional Facility, serving out the remainder of his sentence for violation of the terms of his parole. Defendants Semrau, Himmelsbach, and Mooney were at all relevant times employed by the New York State Department of Corrections and Community Supervision (“DOCCS”) or its predecessor the Department of Parole, which has now merged with DOCCS.

         Plaintiff was initially convicted in 2005, when he pled guilty in Erie County Supreme Court to second degree burglary, criminal possession of a controlled substance, and resisting arrest. The victim of the burglary alleged that, during the commission of the crime, Plaintiff stated he would not leave her home unless either she or her seven-year-old daughter had sex with him. Plaintiff was sentenced to a determinate sentence of five years in custody and an additional five years of supervised release.

         Plaintiff was initially released on parole in August 2009 and placed under the supervision of Parole Officer Amato, who is not a party to this suit. Prior to Plaintiff's release from custody, he was designated as a discretionary sex offender (“DSO”), a designation given in New York State to those “whose instant offense is not a sex crime, but whose criminal history includes a prior sex offense conviction or a crime the commission of which had a sexual component.” (Himmelsbach Dep. 3:11; Docket No. 66.) The designation is not public, it is an internal classification that defines the conditions to which a parolee is subject during the period of supervised release. A DSO is subject to some of the same parole conditions as a sex offender, which may include sex offender treatment or prohibitions on interacting with minors, but does not require the parolee to register with the State Sex Offender Registry. The designation is made following recommendation by a parole officer and approval by a supervisor.

         Defendants state that Plaintiff was designated as a DSO because of the statement that he made during the burglary that he would not leave the victim's home unless either she or her seven-year-old daughter had sex with him. It appears that the designation was recommended by Parole Officer Amato, though it is not clear which supervisor approved Officer Amato's recommendation. Officer Amato met with Plaintiff on August 24, 2009, shortly after his release. At that time, Plaintiff signed conditions of parole indicating that, among other conditions of parole, he was required to participate and complete sex offender counseling. Plaintiff does not recall signing the conditions of parole, and disputes that Officer Amato told him that he would be supervised as a DSO. Officer Amato supervised Plaintiff for only a short time because, three days after he was released, Plaintiff violated his curfew and returned to custody after pleading guilty to a parole violation.

         Plaintiff was next released from custody on August 26, 2010, and placed under the supervision of Officer Semrau. Officer Semrau “submitted rationales for the special conditions associated with” Plaintiff-which would appear to mean that he supported Plaintiff's continued designation as a DSO. (Semrau Decl. ¶ 19; Docket No. 67-4.) Plaintiff states that he first learned of the sex offender conditions from Officer Semrau, that he objected to the conditions, and that he was told he would “have to register in a kind of way that it would only be provided to local police officers.” (Gordon Dep. 20:13-18, Docket No. 67). Officer Semrau advised Plaintiff that he could initiate an Article 78 proceeding if he wanted to challenge the designation. Despite his objections, Plaintiff signed off on the conditions and did not file any challenge at that time.

         Plaintiff was not compliant with the conditions of his parole. Officer Semrau often had difficulty locating the Plaintiff, and he failed to attend the requisite sex offender counseling. On November 12, 2010, after DOCCS officers were unable to locate Plaintiff for several weeks, an absconder warrant was issued. Plaintiff alleges that, on February 3, 2011, after he had absconded to Nebraska, he saw a television broadcast on “Channel 4” that said he “was wanted by the New York Department of Parole, that [he] was a sex offender wanted by . . . the State Department of Parole, someone who committed a sex offense . . . .” (Gordon Dep. 62:20-23, 63:1-7, Docket No. 67). Plaintiff does not know the source of the information provided to Channel 4. On December 13, 2011, Plaintiff was taken into custody in Nebraska after a traffic stop and extradited back to New York shortly after. Plaintiff alleges that the extradition paperwork stated that his crime of conviction was rape, though the paperwork contradicts this. After Plaintiff was brought back to Buffalo, he was either found guilty or pled guilty to violating his parole and sentenced to fifteen months in custody.

         Plaintiff was released on parole for the third and final time on June 6, 2013, under the supervision of Officer Himmelsbach. Prior to Plaintiff's release, Senior Parole Officer Susanna Mattingly recommended that Plaintiff be classified as a DSO, which was approved by the Bureau Chief. Officer Himmelsbach informed Plaintiff that he would be supervised as a DSO and also of several additional conditions, including a requirement that he avoid contact with Allison Coleman, a woman with whom Plaintiff had a prior relationship and a history of domestic violence. Officer Himmelsbach imposed a curfew of 8pm to 8am, a ban on driving, and a prohibition on going to bars. She also used a GPS to monitor Plaintiff's movements due to his history of violence and the previous absconding incident. Plaintiff again protested the terms of his parole, but again signed off on them.

         Plaintiff was no more compliant on his third attempt at parole than he had been during the two prior periods of release. On July 25, 2013, Officer Himmelsbach found Plaintiff speaking with Ms. Coleman in front of her home. Officer Himmelsbach also found an unapproved cell phone in Plaintiff's possession that revealed Plaintiff had been associating with children and visiting pornographic web sites in violation of the DSO-related conditions of his parole. Plaintiff was taken back into custody and charged with seventeen parole violations, including violating curfew on multiple occasions, being within 1000 feet of Ms. Coleman, being within 1000 feet of a minor, possession of an unapproved cell phone, and accessing pornographic sites on his cell phone.

         Officer Mooney acted as the Parole Revocation Specialist who prosecuted Plaintiff for these violations at the Parole Revocation Hearing on October 2, 2013. Ms. Coleman testified at the hearing that she had known Plaintiff for many years, that he was at her residence, and that she knew he was not supposed to be at her residence. Officer Himmelsbach also testified at the hearing as to the conditions of Plaintiff's parole. Plaintiff was sentenced to “maxing out” his parole, meaning that he was sentenced to complete the remainder of his supervised release in custody.

         Plaintiff commenced this § 1983 action in April 2014, while still in custody on the parole violations. Shortly after, on July 25, 2014, Plaintiff brought a habeas corpus proceeding in New York state court. See Matter of Gordon v. LaClair, 48 Misc.3d 926, 16 N.Y.S.3d 371 (N.Y. Sup. Ct. 2015). The Franklin County Supreme Court acknowledged the possibility that the DSO designation may have implicated Plaintiff's liberty interest, but dismissed Plaintiff's petition because it appeared that Plaintiff's parole was revoked primarily based on violations of parole that were unrelated to the DSO-specific conditions:

The mere fact that [Plaintiff] may have been unlawfully designated a “discretionary sex offender” for parole supervision purposes does not, in and of itself or even when coupled with a parole condition directing his participation in an intrusive sex offender treatment program, mandate the judicial reversal of a subsequent final parole revocation determination in the absence of allegations/findings that the parole revocation determination was based solely ...

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