Friedland v. Fauver

• Decision Date: 31 March 1998
• Docket Number: No. 96-3465 (MLC).,96-3465 (MLC).
• Parties: Robert FRIEDLAND, Plaintiff, v. William FAUVER, et al., Defendants.
• Court: U.S. District Court — District of New Jersey

6 F.Supp.2d 292

Robert FRIEDLAND, Plaintiff, v. William FAUVER, et al., Defendants.

No. 96-3465 (MLC).

United States District Court, D. New Jersey.

March 31, 1998.

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Robert Friedland, Leesburg, NJ, pro se.

Jennifer L. Kleppe, Deputy Attorney General, Trenton, NJ, for Defendants.

OPINION

COOPER, District Judge.

Plaintiff Robert Friedland brought this action pursuant to 42 U.S.C. § 1983 for claims arising from his arrest and incarceration for violation of the terms of his parole. Currently before the Court are cross motions for summary judgment pursuant to Federal Rule of Civil Procedure 56(a), and plaintiff's motion for injunctive relief pursuant to Fed. R.Civ.P. 65. The Court has reviewed the pleadings and the parties' written submissions and considered the matter pursuant to Fed.R.Civ.P. 78. For the reasons described below, the Court will deny plaintiff's motions, and grant in part and deny in part defendants' motion for summary judgment.

I. BACKGROUND

The complaint in this case alleges violations of plaintiff's constitutional rights in connection with state parole violation proceedings which were commenced separately in February and April, 1996. Plaintiff Robert Friedland avers that he was released on parole on August 17, 1995 under the supervision of the New Jersey Department of Corrections. Complaint, ¶ 17; Affidavit of Robert Friedland dated May 11, 1996 ("Friedland Affidavit-1"), ¶ 2. He avers that he continued on parole without incident until February 6, 1996 when he was arrested and incarcerated on a parole violation warrant for moving without permission, which was issued by parole supervisor Howell Dilkes at the request of parole officer Anthony Vitello. Complaint, ¶¶ 16, 17, 19; Friedland Affidavit-1, ¶ 6; Exhibit B attached to Defendants' Brief and Exhibits in Support of Motion for Summary Judgment ("Defendants' Brief").

Friedland avers that a preliminary hearing to determine probable cause was conducted on February 21, 1996 in the presence of Diana Farrell, hearing officer. Friedland Affidavit-1, ¶ 7. Friedland asserts that Vitello presented no evidence at the preliminary hearing to support the claimed violation of moving without permission. Complaint, ¶ 19. Friedland claims to have presented documentary evidence showing that he had not moved, consisting of telephone bills recording long distance calls to his son in New Hampshire from the alleged former residence. Complaint, ¶ 20. He avers that Farrell indicated at the hearing that probable cause had not been shown and that Friedland would therefore be released. Complaint, ¶ 21; Friedland Affidavit-1, ¶ 7.

Friedland asserts that he was informed the next day by his regular parole officer, Peggy MacClymont, that, even though probable cause had not been found, he had to agree to special parole conditions for the intensive supervision program in order to be released. Complaint, ¶¶ 36-37; Friedland Affidavit-1, ¶ 9. He asserts that he therefore agreed to the special conditions and was released on February 23, 1996. Complaint, ¶ 23; Friedland Affidavit-1, ¶ 10.

Neither Farrell nor Vitello have submitted affidavits disputing Friedland's version of the hearing. However, attached to defendants' brief is a document dated February 22, 1996, signed by Diana Farrell and entitled "Notice of Probable Cause Decision." Defendants' Brief, Exhibit C. The notice states: "I find that there is probable cause that the following terms, conditions, and limitations of parole were violated based upon the following evidence and testimony presented at your Probable Cause Hearing." The notice indicates that Friedland was represented by Deidre Hartman and that the bureau of parole was represented by senior parole officer Vitello. It states that Friedland testified that he never moved, although he was asked by the landlord to leave thresidence. He admitted to sleeping in his car in the garage the night of February 5th and indicated that he tried unsuccessfully to get in touch with Vitello. The notice states that Vitello read information from the parole record concerning a conversation with Friedland's landlord on February 5, 1995 in which the landlord asserted that Friedland "was thrown out" the prior week. The notice further states:

The High Impact Diversion Program was discussed and it was agreed by all that the subject would be referred to same.

It is felt the subject should have spoken with another Officer and advised of his situation.

The violation is sustained.

The violation is forwarded to the Board for their consideration. The subject to be released to the High Impact Diversion Program.

Defendants' Brief, Exhibit C, p. 2. On the next page, an "X" appears in the box next to the following language: "The parolee shall be continued on parole pending a final determination by the paroling authority, despite finding of probable cause." Id., p. 3. An "X" also appears next to the hand-typed language: "LIFT WARRANT — Parolee to be released to the High Impact Diversion Program." Id.

Friedland asserts that, pursuant to the terms of the intensive supervision program, he reported for urine monitoring twice a week, even though he never had a drug or alcohol problem, and he was checked at his residence three times per week. Complaint, ¶¶ 21-22; Friedland Affidavit-1, ¶ 11.

Friedland avers that on March 18, 1996 he submitted to his parole officer a request to transfer his residence, from Rumson in Monmouth County to Bayville in Ocean County. Friedland Affidavit-1, ¶ 12. He avers that Frasier, a parole officer in Ocean County, and Sanmalonas, a Monmouth County parole officer filling in for officer MacClymont, inspected the proposed residence. Friedland Affidavit-1, ¶¶ 12-13. He avers that Frasier said that the residence is nicer than his own and that Friedland should be a dishwasher, like other parolees, and not an owner. Friedland Affidavit-1, ¶ 13; Complaint, ¶ 48. He avers that Frasier then told him that he would not approve the residence and that he should report to Monmouth County. Id.; Complaint, ¶¶ 22-24, 48.

Friedland avers that officer Sanmalonas told him the next week, and noted in the parole file, that the Bayville townhouse could be used as an office, but Friedland should continue sleeping at the Monmouth County residence until the end of the intensive supervision program. Complaint, ¶¶ 22-24; Friedland Affidavit-1, ¶ 14. Friedland avers that officer Sanmalonas also told him that the move would be approved after completion of the program, that Friedland would not be under the direction of Frasier, and that he did not know why Frasier appeared to be "after" Friedland. Friedland Affidavit-1, ¶ 14.

Friedland asserts that he was arrested again on April 8 or 9, 1996 on a parole violation warrant signed by Howell Dilkes and initiated by Peggy MacClymont. He asserts that he was charged with violating the terms of parole by (1) moving without permission and (2) failing to pay restitution of $328,285.00. Complaint, ¶ 26, Exhibit A; Defendants' Brief, Exhibit E. Friedland avers that when he called parole officer Seligman to learn the date of the hearing, she said he is a "con man," that he is in deep trouble, that he's not going anywhere, and that he'll receive notice of the hearing. Complaint, ¶ 32; Friedland Affidavit-1, ¶ 17. He asserts that he received less than 24 hours notice of the preliminary hearing. Complaint ¶ 27.

Friedland asserts that the preliminary hearing was conducted on April 18, 1996. Complaint, ¶ 28; Friedland Affidavit-1, ¶ 19. Friedland avers that Matyus (the hearing officer) and Seligman (the parole officer) refused to wait for his attorney, who had evidence in her possession, on the ground that Friedland need not present evidence until the final revocation hearing. Complaint, ¶ 28; Friedland Affidavit-1, ¶ 19; Affidavit of Robert Friedland attached to cross-motion for summary judgment ("Friedland Affidavit-2"), ¶ 7. Friedland avers that Seligman appeared at the preliminary hearing on behalf of MacClymont, his parole officer. Friedland Affidavit-1, ¶ 17. He asserts that Seligman repeatedly laughed during Friedland's testimony. Complaint, ¶ 31. He avers that Seligman was not his parole officer, did not know the facts of his case, and was unable or unwilling to answer his questions. Friedland avers that defendants' assertion that he questioned her at length during the hearing is an exaggeration of the facts. Friedland Affidavit-2, ¶ 17. He asserts that Seligman and Matyus denied him the right to cross-examine witnesses and to see evidence against him, i.e., the statements referred to in the violation notice on which the alleged violations were based. Complaint, ¶ 29; Friedland Affidavit-1, ¶ 18. He further avers that Matyus and Seligman refused to admit witnesses who were on the witness list and were present at the jail. Friedland Affidavit-2, ¶ 7.

In addition, Friedland avers that Farrell forwarded a statement to a deputy attorney general regarding another court matter in which she said that Friedland would remain incarcerated for the next nine months. He avers that the statement was made on April 15, 1996, three days prior to the preliminary hearing. Complaint, ¶ 32; Friedland Affidavit-1, ¶ 20.

Friedland asserts that he did not violate the terms of his parole. With respect to the first alleged violation, he avers that he did not change his residence. Friedland Affidavit-1, ¶ 25. He asserts that no evidence was presented at the hearing documenting the alleged statement of his roommate referred to in the violation notice, but not provided. Complaint, ¶ 34. He avers that the alleged statement of his roommate that he had moved was contradicted by the roommate's sworn statement contained in a municipal complaint against Friedland dated April 4, 1996 stating Friedland's address. Friedland Affidavit-1, ¶ 25 and Complaint-Summons to appear in Municipal Court of...