Sykes v. James

Decision Date30 December 1993
Docket NumberNo. 187,D,187
Citation13 F.3d 515
PartiesDerry SYKES, Plaintiff-Appellant, v. John JAMES, New York State Parole Officer, Defendant-Appellee. ocket 92-7949.
CourtU.S. Court of Appeals — Second Circuit

Lisa H. Thurau, New York City (Douglas F. Broder, Coudert Brothers, of counsel), for plaintiff-appellant.

Marion R. Buchbinder, Asst. Atty. Gen., New York City (Robert Abrams, Atty. Gen. of the State of N.Y., of counsel), for defendant-appellee.

Before: NEWMAN, Chief Judge, MINER and McLAUGHLIN, Circuit Judges.

MINER, Circuit Judge:

Plaintiff-appellant Derry Sykes appeals from a judgment entered in the United States District Court for the Eastern District of New York (Platt, C.J.), dismissing his complaint for failure to state a claim upon which relief can be granted. See Fed.R.Civ.P. 12(b)(6). The complaint presents a claim for deprivation of constitutional rights under the provisions of 42 U.S.C. Sec. 1983. In the complaint, Sykes alleges that his parole officer, defendant-appellee John James, violated his "basic statutory due process rights accorded under the by laws of [New York] Executive Law-259" by submitting a perjured affidavit in opposition to his petition for a writ of habeas corpus in the New York Supreme Court. The complaint also includes allegations that James conspired with Irmatine Marshall, Sykes' former common law wife, to obstruct justice by submitting false testimony at Sykes' final parole revocation hearing. On appeal, Sykes principally contends that the district court erred in determining that James was entitled to absolute immunity. 1 We affirm the dismissal of the complaint on the ground that James is entitled to absolute immunity from civil liability for allegedly perjurious statements that he made in an affidavit submitted in opposition to Sykes' petition for state habeas relief and on the ground that no claim of conspiracy is stated.

BACKGROUND

In April of 1978, Sykes was convicted of second degree robbery in the New York Supreme Court, Kings County, and sentenced to a prison term of seven years. Sykes later was paroled, and James was assigned as Sykes' parole officer. On September 29, 1988, Sykes was arrested for disorderly conduct while attempting to take possession of his belongings at Marshall's apartment. Sykes failed to notify James of the arrest, and a parole violation warrant was issued by the New York State Division of Parole. When Sykes arrived for a scheduled parole meeting on October 31, 1988, he was arrested by James and later transported to the Rikers Island correctional facility for confinement.

At the time of his arrest, Sykes signed a New York State Division of Parole Notice of Violation form acknowledging that he had received notice of the alleged parole violations. According to the Notice, a preliminary parole revocation hearing was scheduled for November 7, 1988 and a final parole revocation hearing was set for December 14, 1988. Although the Notice provided two boxes for the parolee to check--one waiving the preliminary hearing and the other requesting a preliminary hearing--Sykes checked neither box.

No preliminary hearing took place on November 7, and, on November 21, 1988 Sykes filed a pro se petition for a writ of habeas corpus in the New York Supreme Court, Bronx County, challenging the lawfulness of the parole revocation proceedings. On November 23, 1988, Sykes was assigned counsel, and the habeas proceeding was adjourned until December 16, 1988 to allow for submission of an amended petition.

On December 14, 1988, the final parole revocation hearing proceeded as scheduled and apparently without objection before an administrative law judge ("ALJ"). The ALJ found, based on the testimony of James, that Sykes had failed to notify James of the September 29, 1988 arrest. The ALJ further found that Sykes entered Marshall's apartment on September 29, 1988 without her permission and destroyed certain electronic equipment there, and that he also harassed and threatened Marshall at her place of employment. The latter findings were based on the "credible testimony" of Marshall and on Sykes' own testimony. The Board of Parole adopted the ALJ's findings, revoked Sykes' parole and ordered that he be incarcerated for eighteen months.

On or about December 16, 1988, Sykes' attorney filed an amended petition for a writ of habeas corpus, in which it was alleged that Sykes was denied his right to a timely preliminary hearing. An affidavit signed by James was submitted by the New York Attorney General's office during the first week in January of 1989 as part of its papers in opposition to the amended petition. In the affidavit, James stated:

On 10/31/88, Mr. Derry Sykes came into the Brooklyn Office ... at which time Mr. Derry Sykes was taken into custody. I then asked Mr. Sykes if he wanted a Preliminary Hearing. Mr. Sykes stated that he did not want a Preliminary Hearing, but wanted to go straight to the Final Hearing. Mr. Derry Sykes then signed the 9011 form, but neglected to check the appropriate box on the form.

Sykes denies waiving his right to a preliminary hearing.

In a decision dated January 13, 1989 and entered on January 17, 1989, the Supreme Court, Bronx County (Byrne, J.) granted the writ of habeas corpus. This decision included the following findings: "No preliminary hearing was afforded this relator. The record is clear that one was scheduled but never occurred. No record of relator waiving his mandated preliminary parole revocation hearing." The court directed the parties to "submit [an] order" reflecting the court's decision. For some unknown reason, the order sustaining the petition, vacating the parole violation warrant, releasing Sykes from custody and restoring him to parole supervision was not filed until November 13, 1989.

Since no relief was forthcoming, Sykes, having been transferred to the Great Meadow Correctional Facility in Comstock, New York, filed a pro se petition for a writ of habeas corpus in the Supreme Court, Washington County, in February of 1989. It appears that in February of 1990 the court in Washington County dismissed the petition as moot, noting that the proceeding in Supreme Court, Bronx County, never was officially transferred and that Sykes had been released from custody. A third habeas corpus petition, filed with the Supreme Court, Appellate Division, Third Department, in the fall of 1989 was dismissed. That dismissal order, entered on December 4, 1989, recited that the application was moot in view of the order of the Supreme Court, Bronx County, releasing Sykes from custody.

On February 28, 1989, Sykes filed a complaint in the United States District Court for the Eastern District of New York in an action for damages brought under 42 U.S.C. Sec. 1983 for various constitutional violations against New York Attorney General Robert Abrams, Justice Burton Hecht of the New York Supreme Court, Richard Pasternack, a Supervising Parole Officer, Assistant New York Attorney General Joseph Wagner, James and Marshall. In a March 13, 1989 order, the district court dismissed sua sponte the complaint as to Attorney General Abrams because it failed to allege any facts implicating him in the parole proceedings and, as to Justice Hecht, because the claim against him was frivolous and malicious.

The district court, in a Memorandum and Order dated February 24, 1990, dismissed on collateral estoppel grounds claims against Pasternack and James for false accusations of parole violations. A claim against Wagner for submitting a frivolous affirmation in response to Sykes' habeas petition was dismissed on the ground that, as a government attorney defending litigation against the Government, Wagner was entitled to absolute immunity from civil liability. Claims against Marshall for libel and slander were dismissed on the ground that, as a witness in a judicial proceeding, Marshall was entitled to absolute immunity from civil liability. Finally, the district court dismissed, without prejudice, a claim against James for falsely alleging that Sykes waived his right to a preliminary parole revocation hearing. The district court found that this claim essentially challenged the validity of Sykes' incarceration, which he then was challenging in state court. The district court concluded that comity required dismissal until Sykes exhausted his state remedies.

On June 11, 1991, Sykes, acting pro se, filed the complaint in this action, naming James as the sole defendant. According to this complaint, the affidavit submitted by James in the habeas proceeding in the Supreme Court, Bronx County, included the false statement that Sykes had waived his right to a preliminary parole revocation hearing. Sykes also alleged in the complaint that the James affidavit included the false accusation that Sykes had failed to inform James of his September 29, 1988 arrest and that James sought to obstruct justice by conspiring with Marshall to present false testimony at the final parole revocation hearing.

James moved to dismiss the complaint on March 16, 1992, contending that, under Briscoe v. LaHue, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983), he was a government witness in a judicial proceeding and was therefore entitled to absolute immunity from civil liability on the claim of filing a false affidavit. The district court subsequently dismissed the complaint, without opinion. Sykes appealed and this Court thereafter assigned counsel to represent him on appeal.

DISCUSSION

The grant of a motion to dismiss pursuant to rule 12(b)(6) of the Federal Rules of Civil Procedure is a ruling of law which we review de novo. Austern v. Chicago Bd. Options Exchange, Inc., 898 F.2d 882, 885 (2d Cir.), cert. denied, 498 U.S. 850, 111 S.Ct. 141, 112 L.Ed.2d 107 (1990). In deciding such a motion, a district court must construe any well-pleaded factual allegations in the complaint in favor of the plaintiff, and may dismiss the...

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