United States District Court, W.D. New York
ANDRE A. JOHNSON, Plaintiff,
ANTHONY J. ANNUCCI, Commissioner of D.O.C.C.S., and TINA M. STANFORD, Chairwoman of the Division of Parole, Defendants.
Plaintiff: Andre A. Johnson,
Defendants: Hillel David Deutsch, A.A.G.
DECISION AND ORDER
CHARLES J. SIRAGUSA, UNITED STATES DISTRICT JUDGE.
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.
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. 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 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.
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.
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).
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 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.
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 to Heather L.
McKay, Esq. (Oct. 15, 2015) at 2, attached to
Deutsch Decl. as Ex E, ECF No. 64-4.
was released on February 18, 1998, to parole
supervision 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