Sykes v. James
| Decision Date | 30 December 1993 |
| Docket Number | No. 187,D,187 |
| Parties | Derry SYKES, Plaintiff-Appellant, v. John JAMES, New York State Parole Officer, Defendant-Appellee. ocket 92-7949. |
| Court | U.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.
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 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.
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
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.
The grant of a motion to dismiss pursuant to rule 12(b)(6) of the Federal Section 1983 provides a civil claim for damages against any person who, acting under color of state law, deprives another of a right, privilege or immunity secured by the Constitution or the laws of the United States. 42 U.S.C. Sec. 1983; Day v. Morgenthau, 909 F.2d 75, 77 (2d Cir.1990). Section 1983 itself creates no substantive rights; it provides only a procedure...
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