Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Johnson v. Annucci

United States District Court, W.D. New York

December 4, 2017

ANDRE A. JOHNSON, Plaintiff,
v.
ANTHONY J. ANNUCCI, Commissioner of D.O.C.C.S., and TINA M. STANFORD, Chairwoman of the Division of Parole, Defendants.

          For Plaintiff: Andre A. Johnson,

          For Defendants: Hillel David Deutsch, A.A.G.

          DECISION AND ORDER

          CHARLES J. SIRAGUSA, UNITED STATES DISTRICT JUDGE.

         INTRODUCTION

         In this prisoner civil rights case, plaintiff André A. Johnson (“Johnson”) is seeking sentencing credit for 486 days spent in jail on a parole violation pursuant to New York Criminal Procedure Law § 380.65, New York Executive Law § 259-i, New York Penal Law § 70.23, the New York State Division of Parole Policy and Procedures Manual, and 9 N.Y.C.R.R. § 8010.3. Now before the Court are Johnson's motions: (1) seeking summary judgment filed on July 7, 2016, ECF No. 43; (2) seeking a preliminary injunction, filed on August 21, 2017, ECF No. 71; and (3) seeking the Court's intervention to protect his constitutional rights, filed on September 5, 2017, ECF No. 72. Defendants filed a cross-motion for summary judgment on March 20, 2017, ECF No. 64. In addition to those motions, Johnson responded to the Court's Order to Show Cause, ECF No. 46, in a letter docketed on August 29, 2016, ECF No. 49. For the reasons below, Johnson's applications, ECF No. 43, ECF No. 71 and ECF No. 72 are denied. Defendants' application, ECF No. 64, is granted. The Court determines no sanctions are warranted pursuant to its Order to Show Cause, ECF No. 46.

         BACKGROUND

         Johnson commenced this action on October 5, 2015, by filing a complaint and a motion to proceed pro se. ECF No. 1, ECF No. 2. In its initial screening order, ECF No. 3, the Court directed Johnson to file an amended complaint, which he did on November 3, 2015. ECF No. 4.[1] The Court subsequently directed the United States Marshal (“Marshal”) to serve the amended complaint, and the Clerk sent summonses to the Marshal on November 20, 2015. Mr. Deutsch filed a notice of appearance only for defendant Tina M. Stanford[2] on December 23, 2015, ECF No. 11. On December 28, 2015, Mr. Deutsch filed a motion to dismiss on behalf of both defendants, ECF No. 12, which the Court denied on March 3, 2016, ECF No. 27.

         Johnson filed his motion for summary judgment on July 7, 2016, ECF No. 43. Defendants' responses were due twenty-eight days after service. W.D.N.Y. Loc. R. Civ. P. 7(b)(2)(A) (2016). Johnson's affidavit of service, ECF No. 43-7, states that he served the motion papers on July 5, 2016, making the due date for a response August 2, 2016. To date, the Clerk's docket does not show that Defendants filed a response.

         Defendants filed a cross-motion for summary judgment on March 20, 2017, ECF No. 64. Johnson responded to it on April 10, 2017, ECF No. 68. Defendants also served an Irby notice as required by the Court's local rules. W.D.N.Y. Loc. R. Civ. P. 56.2 (2017); Irby v. New York City Transit Authority, 262 F.3d 412, 414 (2d Cir. 2001).

         Johnson's Factual Statement

         In his motion for summary judgment, Johnson included a statement of facts about which he contended that no material issue existed. Johnson asserts in his sworn statement of facts, that he was sentenced to a concurrent sentence, but that Defendants altered it to a “cumulative sentence.” Johnson Statement of Facts ¶¶ 4A-B, Jul. 7, 2016, ECF No. 43-7. Further, he contends that the Division of Parole[3] lodged a warrant against him on May 21, 2012, and that, at the time of that warrant, Johnson was being held on new criminal charges. Id. ¶¶ 4C-D. Consequently, Johnson claims that he is entitled to 486 days of credit on his criminal sentence for what he labels “Parol[e] Jail Time.” Id.

         Defendants' Factual Statement

         Defendants'' factual statement is more detailed. The Court will set out their declarations, followed by any objections Johnson made in his response. Johnson was convicted of Attempted Murder in the Second Degree in 1981 and sentenced to 12 ½ - 25 years' incarceration. Def.s' Rule 56 Statement (“Def.s' Stmt.”) ¶ 1, Mar, 30, 2017, ECF No. 64-1. In 1982, he was convicted of attempted murder in the first degree and sentenced to 15 years to life in prison. The 1981 and 1982 sentences were ordered to be served concurrently. Letter from Richard de Simone, Deputy Counsel in Charge, Office of Sentencing Review, DOCCS[4] to Heather L. McKay, Esq. (Oct. 15, 2015) at 2, attached to Deutsch Decl. as Ex E, ECF No. 64-4.

         Johnson was released on February 18, 1998, to parole supervision[5] and, while on parole, was convicted of four new felony assault charges in 2013. Def.s' Stmt. ¶ 3. Johnson was held in county jail custody from May 12, 2012 to September 12, 2013, before being transferred to State custody to serve his cumulative sentence of seven years' incarceration with five years' post-release supervision. Id. ¶ 4. Based on his county jail incarceration, Johnson was credited against his 2013 sentences with 486 days of jail time pursuant to Penal Law § 70.30(3). Id. ¶ 5. Johnson states that he was held from his arrest date of May 15, 2012, until his transfer, which took place on September 18, 2013. Pl.'s Response to the Defendants' Notice of Motion and Memorandum of Laws (“Pl.'s Resp. Stmt.”) ¶ 2, Apr. 10, 2017, ECF No. 68. Johnson adds that his sentence in 2013 was directed to be served concurrently, though he does not state whether it was concurrent to a prior sentence, or if the sentences for the four counts were to be served concurrently with each other, and consecutively with his 1981 and 1982 sentences. Pl.'s Resp. Stmt. ¶ 2. DOCCS reported that the 2013 sentences were to run ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.