506 F.Supp. 226 (S.D.N.Y. 1980), 75 Civ. 1194, Diaz v. Ward

Docket Nº:75 Civ. 1194-CSH.
Citation:506 F.Supp. 226
Party Name:Carmen DIAZ et al., Plaintiffs, v. Benjamin WARD et al., Defendants.
Case Date:November 06, 1980
Court:United States District Courts, 2nd Circuit

Page 226

506 F.Supp. 226 (S.D.N.Y. 1980)

Carmen DIAZ et al., Plaintiffs,


Benjamin WARD et al., Defendants.

75 Civ. 1194-CSH.

United States District Court, D. New York

Nov. 6, 1980

Page 227

David Rudenstine, Arthur Eisenberg, New York Civil Liberties Union, New York City, for plaintiffs.

Robert Abrams, Atty. Gen. of the State of N. Y., New York City, for defendants; Donald Sticklor, Asst. Atty. Gen., New York City, of counsel.


HAIGHT, District Judge:

Plaintiffs in this class action are parolees under the criminal justice system of the State of New York, and all individuals residing in private living quarters with parolees. Alleging that the defendants, officials charged with the administration of the parole program, have violated their constitutional rights, plaintiffs pray for declaratory relief, and for compensatory and punitive damages. The nature of plaintiffs' claims is discussed in detail in this Court's opinion granting class certification and denying defendants' motion for judgment on the pleadings. 437 F.Supp. 678.

Following pre-trial discovery, the parties filed cross-motions for partial summary judgment. I referred those motions to the Hon. Nina Gershon, United States Magistrate, for report and recommendation. The motions addressed the constitutionality of defendants' policies in respect of searches by parole officers of parolees' residences, and visits by parole officers to such residences. Plaintiffs contend that a parole officer should obtain a warrant before conducting a search of a parolee's residence, or making a visit to the premises. Defendants contend that a warrant is not required in either circumstance.

In a comprehensive and scholarly opinion, Magistrate Gershon recommended:

"... that summary judgment be granted in favor of plaintiffs to the extent of declaring that, unless an established exception to the Fourth Amendment warrant requirement is applicable, a parole officer must secure a warrant prior to conducting a search of a parolee's residence and further declaring that, to the extent defendants' Policy Statement purports to authorize parole officers to conduct warrantless searches when none of the established exceptions apply, it is unconstitutional." Opinion at 25.

As to the question of home visits, the Magistrate recommended that summary judgment not be granted to either side, pending...

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