Scotto v. Almenas

Decision Date05 May 1998
Docket NumberDocket No. 97-7673
Citation143 F.3d 105
PartiesJohn SCOTTO, Plaintiff-Appellant, v. Arcadio ALMENAS, Carol Forman, Kenneth Wegman, Barbara Mei, James F. O'Rorke, Jr., individually and as a member of the law firm of Skadden, Arps, Slate, Meagher & Flom, New York State Division of Parole, Skadden, Arps, Slate, Meagher & Flom, Defendants-Appellees.
CourtU.S. Court of Appeals — Second Circuit

Lawrence G. Golde, Hartman Sands & Foster, New York City (Lawrence M. Sands, on brief), for Plaintiff-Appellant.

Richard L. Huffman, Baden Kramer Huffman & Brodsky, P.C., New York City, for Defendant-Appellee Kenneth Wegman.

Ronald E. DePetris, DePetris & Bachrach, New York City, for Defendant-Appellee Arcadio Almenas.

Lewis Tesser, Segal & Tesser LLP, New York City, for Defendant-Appellee Carol Forman.

Vaughn C. Williams, Skadden, Arps, Slate, Meagher & Flom LLP, New York City, for Defendants-Appellees Barbara Mei, James F. O'Rorke, Jr., and Skadden, Arps, Slate, Meagher & Flom LLP.

John P. Barry, State of New York Attorney General's Office, New York City, for Defendant-Appellee New York State Division of Parole.

Before: VAN GRAAFEILAND, WALKER, Circuit Judges, and KOELTL, District Judge. *

JOHN M. WALKER, Jr., Circuit Judge:

Plaintiff-appellant John Scotto brought this action pursuant to 42 U.S.C. § 1983 against defendants-appellees Arcadio Almenas, Carol Forman, and Kenneth Wegman, all officers of the New York State Division of Parole ("DOP")(collectively, the "DOP defendants"), and against defendants-appellees Barbara Mei, James F. O'Rorke, and Skadden, Arps, Slate, Meagher & Flom LLP (collectively, the "non-government defendants"). Scotto alleged that Almenas and Forman ordered him to withdraw a state court action he had filed against Barbara Mei, that Almenas and Forman threatened to file false parole violation charges against Scotto if he refused to comply with this order, and that when Scotto refused to withdraw the state court action, Wegman issued a warrant for his arrest, all in violation of Scotto's civil rights under the United States Constitution. Scotto also alleged that Barbara Mei and her attorneys, O'Rorke and Skadden Arps, conspired with the government defendants to chill his exercise of his civil rights.

Both the DOP defendants and the non-government defendants moved to dismiss the action pursuant to Fed.R.Civ.P. 12(b)(6). The United States District Court for the Southern District of New York (John S. Martin, Jr., District Judge ) granted the motion as to the DOP defendants, finding that they were "entitled to absolute immunity with respect to plaintiff's § 1983 cause of action." The non-government defendants withdrew their Rule 12(b)(6) motion and resubmitted it as a motion for summary judgment, pursuant to Fed.R.Civ.P. 56. The district court granted that motion, finding that Scotto had failed to present sufficient facts to support an inference of conspiracy. On appeal, Scotto claims that the DOP defendants are not entitled to absolute immunity, and that there are sufficient facts in the record to support an inference that the non-government defendants conspired with the DOP defendants to violate Scotto's civil rights. For the reasons set forth below, we affirm the judgment of the district court as to all defendants except Almenas, and we vacate and remand the case for further proceedings on Scotto's claims against him.


In 1992, Scotto was convicted of a felony in California. He was released on parole in 1994 and moved to New York. Pursuant to an agreement between the State of California and the State of New York, administration of Scotto's supervised release was assigned to the DOP. Almenas, an employee of the DOP, was appointed Scotto's parole officer.

In September, 1994, while living in New York, Scotto began to work with Barbara Mei's father, Armando Mei, to redevelop a restaurant owned by the latter. As a special condition of parole, Scotto was prohibited from participating in any business without the approval of his parole officer. Scotto alleges that he first sought Almenas's approval in February, 1995, and that in May and June 1995, he continued to discuss with Almenas the details of Scotto's proposed participation in the restaurant. According to Scotto, Almenas was supportive and offered suggestions on the content of the agreement that Scotto was negotiating with Armando Mei. On June 30, 1995, Scotto entered into a "Consultant Agreement" with Armando Mei regarding the operation of the restaurant. Mr. Mei, with the assistance of a liquor license consultant, submitted an application on Scotto's behalf to the New York Liquor Authority seeking permission for Scotto to manage a restaurant licensed to serve alcohol.

On July 26, 1995, Armando Mei, already ill when he signed the agreement a month earlier, died. His daughter, Barbara Mei, assumed control of his businesses. Barbara Mei soon informed Scotto that she had no intention of complying with the Consultant Agreement. 1 Scotto alleges that Barbara Mei withdrew his application to the Liquor Authority. In August 1995, Scotto filed an action in New York State Supreme Court against Barbara Mei, alleging breach of contract and tortious interference with contractual relations and seeking damages and specific performance of the agreement (the "state court action"). Barbara Mei was represented by James F. O'Rorke and Skadden Arps. On September 15, 1995, Scotto obtained a preliminary injunction against Barbara Mei preventing her from "selling, subletting, or contracting for management of the restaurant premises unless a copy of the [consultant agreement] was incorporated in any such agreement." On April 30, 1996, the Appellate Division lifted the injunction; and on December 26, 1996, the Supreme Court concluded that the agreement between Armando Mei and Scotto was unlawful and dismissed the action.

Scotto alleges that on or before September 19, 1995, but after the preliminary injunction against her was entered, Barbara Mei and O'Rorke contacted Almenas in an effort to secure the assistance of the DOP in preventing Scotto from pursuing the state court action, and that Almenas agreed to do so. Barbara Mei asserts that the contact was initiated not by her, but by Almenas. She claims that on August 23, 1995, Almenas paid an uninvited visit to her office while she was out of town and left a note asking her to telephone him. On September 15, 1995, when Ms. Mei returned his telephone call, Almenas requested a meeting. On September 20, 1995, Almenas and Barbara Mei met. Ms. Mei and O'Rorke deny ever having asked Almenas for aid of any kind. Instead, Ms. Mei insists that Almenas simply asked several questions about Scotto and the state court action.

On September 26, 1995, according to Scotto, Almenas orally instructed him to discontinue the state court action and threatened to charge him falsely with a parole violation and to plant illegal drugs in his home if he refused. Scotto further claims that at the same time, Almenas and then-Division of Parole Manhattan Area Supervisor Carol Forman forced Scotto to sign a handwritten document, notarized by Forman, wherein Scotto promised to "do whatever is in my power to terminate the lawsuit ... against Barbara Mei." Scotto alleges that Almenas told him that O'Rorke supplied the legal language for this document. On September 26, 1995, Almenas also imposed a written special condition of parole, precluding Scotto "from engaging in or participating in the ownership or management of any establishment which serves liquor ... [and] from entering into any type of business arrangement where [he] would function as a partner, co-owner, business manager, or consultant" in a business that serves liquor. After discussions with his lawyer, Scotto decided not to withdraw the lawsuit. Finally, Scotto alleges that on September 26, 1995, Almenas telephoned the California parole authorities and falsely advised them that he had charged Scotto with a parole violation.

From September 26 to October 2, 1995, Almenas continued to press Scotto to drop the suit. On October 3, 1995, O'Rorke faxed to Almenas a copy of a letter he had received from Scotto's counsel indicating Scotto's willingness to settle the state court action. During this time, Almenas had several telephone conversations with Barbara Mei and O'Rorke, both of whom claim that each of these calls was initiated by Almenas and that they never asked Almenas for any help with Scotto's state court action. On October 4, 1995, Almenas learned from Barbara Mei and O'Rorke that Scotto's attorney had noticed depositions in the state court action. Scotto alleges that Almenas again demanded that he discontinue the suit.

On October 6, 1995, Almenas obtained the approval of Kenneth Wegman, a supervisor and senior parole officer at the DOP, to issue an arrest warrant charging Scotto with parole violations. Count One of the warrant charged that Scotto "entered into a contractual agreement to manage" two establishments that served liquor "contrary to [Almenas's] standing verbal instructions." Scotto denies that Almenas imposed any such verbal condition; rather, he alleges that Almenas knew of the agreement no later than June, 1995, and was supportive of it. Count Two charged that Scotto signed a contract to operate these establishments without notifying Almenas. Count Three charged that Scotto recorded his conversations with Almenas without the latter's permission. Almenas arrested Scotto on the same day. Scotto was imprisoned for five days before his attorney obtained a writ of habeas corpus from a state judge. On October 25, 1995, a preliminary parole violation hearing was commenced. DOP Regional Director Michael Goldschmid presented the case against Scotto. Scotto alleges that Almenas, Forman, Barbara Mei, and O'Rorke met for several hours in a closed witness room without attorneys during Scotto's parole violation...

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