United States District Court, S.D. New York
JOHN DOE and JANE DOE, Individually and on behalf of M.S. an Infant, as Next Friends, Plaintiffs,
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
A. Engelmayer United States District Judge.
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
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.
following reasons, the Court grants plaintiffs' motions
for summary judgment as to liability as to each defendant,
and denies defendants' motions.
Doe's Family Overview
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.
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.
Doe's Rape Conviction and Criminal Record
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.
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.
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.
Doe's Initial Parole Supervision and Special Condition
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.
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.
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.
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.
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.
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.
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.
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.
The Birth of M.S.
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.
Doe's Ensuing Parole Supervision and the Roles of Each
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.
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.
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.
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.
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.
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.
The Parole Department's Separation of Doe From
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.
The First Separation of Doe From M.S.
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.
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.
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.
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.
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.
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.
the October 4, 2012 meeting with DOCCS officials, Doe
immediately moved out of his residence and into a homeless
shelter. Pl. 56.1 ¶ 41.
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.
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.
October 11, 2012, Doe provided Scott with the court
information for his petition, and with a letter of
recommendation from NYCATS. Id. ¶ 52.
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.
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.
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.
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.
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
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.”
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.
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.
The Second Separation of Doe From M.S.
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. ¶ 61. Around April 22, 2013, the
bureau chief of the Bronx Area II Office, Rodney Young, spoke
with Lima about Doe's case. The ...