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Doe v. Lima

United States District Court, S.D. New York

August 31, 2017

JOHN DOE and JANE DOE, Individually and on behalf of M.S. an Infant, as Next Friends, Plaintiffs,
v.
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; Senior Parole Officer RICHARD ROSADO; and Senior Parole Officer JAMES CAPPIELLO, Defendants.

          OPINION & ORDER

          Paul A. Engelmayer United States District Judge.

         This case, now at the summary judgment stage, involves claims that state parole officials, in portions of 2012, 2013, and 2014, unconstitutionally deprived plaintiff John Doe ("Doe") of access to his infant child. Doe earlier had been convicted of sexual offenses against a teenage girl, for which he served more than eight years in prison. After Doe's release from prison on parole, his wife, Jane Doe, gave birth to their son, M.S. After defendants-parole officials at the New York State Department of Corrections and Community Supervision ("DOCCS")-learned of the birth of Doe's son, they applied one of Doe's special parole conditions to bar him categorically, during two distinct time periods, from having any contact with his infant son. Together, these two periods lasted close to 13 months.

         Following discovery, plaintiffs-Doe and Jane Doe, individually and on behalf of M.S.- now move for summary judgment under Federal Rule of Civil Procedure 56 as to liability against the five defendants who remain in this case. Three defendants-Joseph Lima, Simon Valerio, and Richard Rosado-in turn move for summary judgment in their favor, primarily on grounds of qualified immunity and a lack of personal involvement.

         For the following reasons, the Court grants plaintiffs' motions for summary judgment as to liability as to each defendant, and denies defendants' motions.

         I. Background[1]

         A. Factual Background

         1. Doe's Family Overview

         Doe is the biological father of M.S. and the husband of Jane Doe, the biological mother of M.S. JSF ¶¶ 1-2. John and Jane Doe, a woman John Doe has known for more than 25 years, Albom Decl, Dkt. 236, Ex. 1, ¶ 3, were married in September 2007, JSF ¶ 11. M.S. was born in September 2012. Id. ¶ 3. Since September 2013, Doe has worked full-time for a Manhattan-based company that provides live and artificial foliage for special events. Id. ¶ 13. Since 2006, Jane Doe has worked at a legal secretary for a large law firm in Manhattan. Id. ¶ 15.

         Doe had previously been married, between 1988 and November 2005, to Beverly Martin. Id. ¶ 10. He is the father of eight children with five women: four with ex-wife Martin; one with Jane Doe (M.S.); and three with three other women. Id. ¶ 12. His children are two daughters born in 1986; a son born in 1990; a daughter born in 1993; a son born in 1997; a daughter born in 1998; a daughter born in 1999; and M.S., born in September 2012. Id. There is no evidence that Doe ever abused or mistreated his children. Pl. 56.1 ¶ 12.

         2. Doe's Rape Conviction and Criminal Record

         On October 18, 2004, Doe was convicted after a jury trial in New York State Supreme Court, Bronx County, of one count of rape in the second degree, one count of sodomy in the second degree, and one count of endangering the welfare of a child. JSF ¶ 16. On May 11, 2005, Doe was sentenced to consecutive terms of imprisonment for three and a half to seven years and two to six years. Id.

         Before his trial and conviction, Doe resided with his then-wife, Martin, their four children, and Martin's niece. Id. ¶ 17. The complaining witness in Doe's rape case was Martin's niece, who testified at Doe's trial that Doe had engaged in vaginal and oral sex with her in 2002 and 2003 when she was 13-14 years old. Id. Doe has asserted his innocence of these charges, Pl. 56.1 ¶ 18; for reasons that the record does not make clear, his criminal conviction remains today on direct appeal, see JSF ¶ 18.

         Doe has other criminal convictions and an incident of domestic violence. On January 22, 1981, as a juvenile offender, he pleaded guilty to robbery in the first degree and was sentenced to 28 months to seven years of imprisonment. Id. ¶ 22. On April 4, 1988, he pleaded guilty to two counts of robbery in the first degree and was sentenced to concurrent terms of six to 12 years of imprisonment. Id. ¶ 21. In addition, in connection with his arrest leading to his 1988 conviction, he provided law enforcement officers with his mother's maiden name as his last name and with an incorrect birth year (1968 instead of 1965), for the purpose of impeding the police's ability to identify him. Id. ¶ 23. Finally, in 2000, Doe shoved or pushed Martin during a “scuffle” and she fell to the ground; as a result, Martin went to Lincoln Hospital in the Bronx to seek medical care. Id. ¶ 24.

         3. Doe's Initial Parole Supervision and Special Condition 13

         Doe served more than eight years of his sentence for his 2004 rape conviction. Id. ¶ 16. While in prison, Doe successfully completed DOCCS's Sex Offender Counseling and Treatment Program, along with DOCCS's Aggression Replacement Training. Id. ¶ 19. Before his release from prison, the New York State Supreme Court, Bronx County, classified Doe as a SORA (“Sex Offender Registration Act”) Level Two sex offender. Id. ¶ 20. After that classification, Doe registered in the New York State Sex Offender Registry. Id.

         On November 2, 2011, Doe was released from prison to a parole supervision term of four years and four months, which ended on March 2, 2016. Id. ¶¶ 25-26. Upon his release from prison, Doe was initially referred to the Bellevue Men's Shelter for housing because DOCCS determined that his proposed residence with his wife would not comply with the New York State Sexual Assault Reform Act (“SARA”) as it was within 1000 feet of a school. Id. ¶ 30. In December 2011, however, Doe and Jane Doe proposed to reside in a different location in the Bronx. DOCCS approved this residence, and Doe moved into that residence with Jane Doe. Id. ¶ 31.

         On November 3, 2011, the day after his release from prison, Doe reported to his assigned parole officer, Joseph Rehal. His release on parole was subject to numerous conditions; Rehal read these conditions to Doe. Doe stated that he understood them. Id. ¶¶ 29-30.

         Relevant here, special condition 13 stated that Doe “will have no contact with any person under the age of eighteen, without the written permission of the supervising parole officer.” Id. ¶ 29 & Ex. A.

         To obtain permission to have contact with his youngest daughter, L.S., who was 12 years old at the time of his release, Doe, on December 6, 2011, filed a petition in Bronx Family Court requesting visitation with L.S. Id. ¶ 32. On February 1, 2012, the Bronx Family Court granted Doe's petition for visitation with L.S. upon the consent of L.S.'s mother, Doe's ex-wife, Martin. Id.

         On April 3, 2012, Doe sought permission from his parole officer, Rehal, for his wife's cousin and young child to stay at their residence for two nights. Id. ¶ 32. Rehal denied this request. He told Doe that children were not allowed in the apartment without the prior permission from Doe's parole officer. Id.

         Around May 2012, after the Bronx Family Court permitted Doe's visitation with L.S., Rehal, after consulting with senior parole officer Miguel Medina, permitted Doe to have contact with L.S. subject to the terms of the Family Court's order. Id. ¶ 34. Rehal was not aware of any adverse incidents or harm to L.S. during his tenure as Doe's supervising parole officer. Id. On August 22, 2012, the Bronx Family Court issued its final order as to Doe's access to L.S.; it granted Doe unsupervised visits with L.S. Id. ¶ 35.

         Doe's parole conditions also required him to participate in sex offender treatment. Id. ¶ 36. DOCCS sent Doe to the New York Center for Addiction Treatment Services (“NYCATS”) to satisfy this condition. Around November 18, 2011, Doe enrolled in programs at NYCATS. Id. On September 29, 2012, Doe successfully completed the substance-abuse and sex-offender treatment programs at NYCATS. Id. ¶ 37.

         4. The Birth of M.S.

         Around February 2012, Jane Doe discovered that she was pregnant with John Doe's child. Id. ¶ 38. On or about April 19, 2012, John Doe alerted Rehal, his parole officer at the time, that Jane Doe might be pregnant. Rehal counseled Doe about his sex offender restrictions. Id. In September 2012, John and Jane Doe's son, M.S., was born. Id. ¶ 3.

         5. Doe's Ensuing Parole Supervision and the Roles of Each Defendant

         Until March 2014, Doe was supervised by the Manhattan VI Area Office of the New York State Division of Parole, an office that specializes in the supervision of parolees convicted of sexual offenses and parolees with mental illnesses. In September 2012, DOCCS was preparing to transfer Doe's case from the Manhattan VI Area Office to the Bronx II Area office on account of Doe's residing in the Bronx. The Bronx II Area office ultimately supervised Doe from March 2014 until his parole ended in March 2016. Id. ¶¶ 27-28, 39-40.

         On September 17, 2012, defendant Emily Scott, a parole officer at DOCCS in the Manhattan VI Area Office, was assigned to supervise Doe. She ultimately supervised Doe as his parole officer until September 19, 2013. Id. ¶ 8. The responsibilities of a parole officer include monitoring assigned parolees' compliance with the terms and conditions of their parole and with the standards of parole supervision. Id. ¶ 4.

         At all relevant times:

Defendant James Cappiello was a senior parole officer at the Manhattan VI Area Office. Cappiello was assigned to oversee Doe's supervision from around September 2012 to April 2013. Id. ¶ 6.

         Defendant Joseph Lima was a bureau chief of the Manhattan VI Area Office. He held this position for the duration of Doe's supervision by that office. Id. ¶ 4. Lima was generally responsible for the supervision of three senior parole officers and between 17 and 25 parole officers. Id.

         Defendant Richard Rosado was a senior parole officer at the Manhattan VI Area Office. He was assigned to oversee Doe's supervision from around June 2013 until around March 2014, although he was also involved in decisions regarding Doe's supervision beginning in at least October 2012. Id. ¶ 5.

         Defendant Simon Valerio was a parole officer at the Manhattan VI Area office. He was assigned to supervise Doe as a parole officer from about September 19, 2013 until about December 16, 2013. Id. ¶ 7.

         6. The Parole Department's Separation of Doe From M.S.

         After being assigned to supervise Doe, on September 17, 2012, Scott reviewed Doe's parole file and his Parolee Chrono Report (“PCR”). Id. ¶ 39. On September 25, 2012, Scott and Cappiello met to review Doe's case. They discussed preparing the transfer of Doe's case to the Bronx Parole Office, because Doe was residing in the Bronx. Id. ¶ 40.

         a. The First Separation of Doe From M.S.

         On October 4, 2012, the month after M.S.'s birth, Doe went to the Manhattan VI Area Office for an office report. Id. ¶ 41. He met with Scott, Rosado, and Cappiello, and mentioned that he was residing with his wife and newborn child, M.S. In response, Scott, Rosado, and Cappiello told Doe that he was not allowed to reside or otherwise have contact with M.S. because of the special condition of his parole that prohibited contact with any person under age 18 without the written permission from his parole officer. Id.

         Doe protested. He explained that the Bronx Family Court had approved his petition for unsupervised visitation with his daughter, L.S., then age 14. During the meeting, Scott, Rosado, and Cappiello did not ask Doe any questions about his relationship with M.S. or otherwise seek any information from Doe. Doe became visibly upset during this meeting and Scott thought he might need medical assistance. Id.

         During the October 4, 2012 meeting, Scott, at Cappiello's instruction, required Doe to sign a document containing additional conditions of parole. The statement that Doe was directed to sign, and did sign, affirmed that he must immediately leave Jane Doe's and M.S.'s residence and not have any contact with any children under age 18. It stated that “residing with wife and new born is clearly a violation of my release conditions. I must seek visitation order with regard to new born child [M.S.]. I am aware that I can not have contact with child until approval by Family Court and Parole Officer Scott.” Id. ¶ 42 & Ex. B.

         The three parole officials-Scott, Rosado, and Cappiello-based their decision to order Doe out of his residence with Jane Doe and M.S. on the special condition of parole that prohibited Doe from having contact with person under age 18 without the written permission of the parole officer supervising Doe. Id. ¶¶ 43, 48. These officials did not consider allowing Doe to have restricted contact with M.S. instead of simply no contact at all. Nor did the officials consider their decision subject to modification. Id. Doe had been aware of his special parole condition, although Doe had not had notice that the parole authorities would not permit him to have contact with M.S. Id. ¶¶ 44-45. Jane Doe was not contacted by any DOCCS officials before, during, or after the October 4, 2012 meeting, including for the purpose of asking her whether she supported or opposed parental contact between John Doe and M.S. Id. ¶ 46.

         After the October 4, 2012 meeting with Scott, Rosado, and Cappiello, Doe complained orally to supervisor Lima about being prohibited from contact with M.S. Id. ¶ 47. This was the first time Lima had spoken with Doe. Lima previously had consulted with Doe's prior parole officer, Rehal, about Doe's parole supervision. Id. Later that day, Lima spoke to Cappiello, Rosado, and Scott. Lima told them that their decision not to permit Doe to have contact with M.S. was correct because Doe's parole condition prohibited contact with any person under age 18 in the absence of written permission from the parole officer. Id.

         Later in the day on October 4, 2012, after the meeting with Doe, Scott called Cornelia Krieger, assistant director at NYCATS. Id. ¶ 49. Krieger told Scott that Doe had been extremely compliant, that Doe had maintained a 100 percent attendance rate at NYCATS, and that NYCATS assessed Doe to be at a low risk of recidivism with no indicators of reoffending. Id. ¶ 49.

         After the October 4, 2012 meeting with DOCCS officials, Doe immediately moved out of his residence and into a homeless shelter. Pl. 56.1 ¶ 41.

         On October 5, 2012, Doe filed a petition in Bronx Family Court for visitation with M.S. Id. ¶ 50. Jane Doe consented to this petition. Id.

         On October 6, 2012, Doe showed Scott the Final Order issued by the Bronx Family Court granting unsupervised visitation with L.S. Id. ¶ 51. Doe also told Scott that he had filed a petition in Bronx Family Court for visitation with M.S. Scott again directed Doe not to have any contact with M.S. Scott also directed Doe to provide all court-related information on his next report date with her, which was scheduled for October 11, 2012. Id.

         On October 11, 2012, Doe provided Scott with the court information for his petition, and with a letter of recommendation from NYCATS. Id. ¶ 52.

         On October 17, 2012, Scott visited Bronx Family Court to obtain more information on the Final Order relating to Doe's right to unsupervised visitation with L.S. Id. ¶ 53. Scott was unable to obtain additional information there due to a fire drill. Sometime after Doe filed his petition for visitation with M.S., Scott told an investigator for Bronx Family Court that Doe could not have any contact with anyone under age 18. Id.

         On March 12, 2013, Doe's petition for visitation with M.S. in Bronx Family Court was dismissed without prejudice because “the conditions of the Petitioner's probation indicate that he is not to live in the same home as a child under the age of 18.” Id. ¶ 54.

         Doe continued to reside in the homeless shelter. On December 12, 2012, at an office report, Scott reiterated to Doe that he was not permitted to have any contact with M.S. or any other children. Id. ¶ 55.

         On January 24, 2013, Scott spoke to Mary Osborne, deputy director of DOCCS's Sex Offender Management Unit and discussed Doe's request to have parental contact with M.S. Id. ¶ 56. Osborne recommended that Doe be referred back to NYCATS for an updated interview and evaluation to assess Doe's suitability for reuniting with his family. Id. At some later point in January 2013, Scott informed Cappiello of her conversation with Osborne. Id. ¶ 57. Cappiello had not been previously aware that Scott was considering permitting Doe to return to the family residence and have contact with M.S. Cappiello himself had not been taking any steps to explore Doe's reuniting with his family. Id.

         Doe then underwent an evaluation by NYCATS officials. On January 29, 2013, Steven Rego, a licensed master social worker from NYCATS, met with Doe to evaluate his suitability to return home to Jane Doe and M.S. Id. ¶ 58 & Ex. C. Rego interviewed Doe and noted that Doe denied that he committed the sexual offenses of which he had been convicted of in 2004 and for which he was on parole. Rego noted that the Parole Board records indicated that in his hearing before the Parole Board, Doe had “denied putting his penis in his niece but acknowledged that he began to touch his niece and then progressed to oral sex with her.” Id. Rego noted that Doe stated to him in the interview that he, Doe, “only said these to the parole board because he wanted to be released and was thus lying to the parole board.” Rego noted that Doe maintained in his meeting with Rego that “he did not molest her in any way.” Id.

         On February 4, 2013, Rego, in a follow up meeting, met again with John Doe and Jane Doe. Id. ¶ 58 & Ex. C. Rego noted that Doe again denied that he committed the sexual offenses and that “he admitted some sexual contact to the parole board because he believed it was the only way he would be released.” Id. Rego concluded after this meeting that “Doe should be permitted to reside with his wife. Cohabitation with a partner of the opposite sex is actually a protective factor for those who commit sexual offenses. It also puts [Doe] with someone who can offer support if needed. It is therefore conducive to the principles of relapse prevention.” Id.

         After this evaluation, on February 7, 2013, Scott told Doe that he could return home and have contact with M.S. Id. ¶ 59. That same day, John Doe moved back in with Jane Doe and M.S. at the family's apartment in the Bronx. Id. Scott recorded her grant of permission to Doe to return home in an entry in the PCR record she created that day. Other than that PCR entry, there is no written statement of permission from Scott to Doe to return home and have contact with M.S. in the record of this case. Id.; see also Pl. 56.1, Ex. 3 (“Doe PCR”). There is also no PCR entry reflecting any review or approval by a senior parole officer or bureau chief permitting Doe to have contact with M.S. JSF ¶ 60.

         On April 8, 2013, Scott and Cappiello met to review Doe's case. They discussed that Doe was living in the Bronx with his family, but Cappiello did not recall appreciating during that meeting that Doe was then residing with M.S. Id.

         b. The Second Separation of Doe From M.S.

         In April 2013, Doe's was case was scheduled to be transferred to the Bronx Area II Office. Id. ¶ 61. On April 19, 2013, a parole officer in the Bronx Area II Office made an entry in Doe's PCR noting that Doe had recently been given permission to reside with his wife and M.S. Id. ΒΆ 61. Around April 22, 2013, the bureau chief of the Bronx Area II Office, Rodney Young, spoke with Lima about Doe's case. The ...


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