Victory v. Pataki, 02-CV-0031

• Decision Date: 25 August 2013
• Docket Number: 02-CV-0031
• Parties: ALBERT LOPEZ VICTORY, Plaintiff, v. GEORGE PATAKI, et al., Defendants.
• Court: U.S. District Court — Western District of New York

ALBERT LOPEZ VICTORY, Plaintiff, v. GEORGE PATAKI, et al., Defendants.

02-CV-0031

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

Dated: August 25, 2013

DECISION AND ORDER

I. INTRODUCTION

Plaintiff Albert Lopez Victory ("Plaintiff"), a former inmate in the care and custody of New York Department of Corrections and Community Supervision ("DOCCS"), brings this action pursuant to 42 U.S.C. § 1983 and the New York State Constitution, alleging that George Pataki, Brion D. Travis, Thomas P. Grant, Mike Hayden, Ronald P. White, Terrance X. Tracy, Kenneth E. Graber, George Chard, Douglas C. Smith, Salvatore Perritano, and Kevin McCarthy (collectively, the "State Defendants"), and the City of Syracuse, Thomas Murfitt, Rory D. Gilhooley, John Falge, Dennis DuVal, and Gary Miguel (collectively, the "Syracuse Defendants") conspired to deny him parole and to cause him to violate his parole once it had been granted. (2d Am. Compl. (Docket No. 162) ¶¶ 2, 101-129.)

Presently before this Court are the State Defendants' and the Syracuse Defendants' motions for summary judgment.¹ Having considered the parties' written submissions andthe applicable law, this Court grants both the State Defendants' and the Syracuse Defendants' motions, and dismisses the amended complaint.

II. BACKGROUND

A. Factual Background and Procedural History

The following facts are not in dispute unless otherwise noted. The Court has considered whether the parties have proffered admissible evidence in support of their positions and has viewed the facts in the light most favorable to Plaintiff. See Spiegel v. Schulmann, 604 F.3d 72, 77, 81 (2d Cir. 2010).

Plaintiff's case comes before this Court with a complex procedural history, including numerous petitions and appeals within the state system, and subsequent affirmances and reversals. The Court will therefore only recite the facts relevant to the instant motions and in chronological order as applicable.

1. The Parties

a. The State Defendants

George Pataki ("Pataki or "Gov. Pataki") was the Governor of New York State from 1995 to 2006. Brion Travis ("Travis" or "Chair. Travis") was the Chairman of the New York State Board of Parole (the "Parole Board" or the "Board") from March 18, 1995 to February29, 2004, later becoming the Chief Executive Officer of the Division of Parole ("DOP"). During this time, Thomas Grant ("Grant" or "Asst. Grant") was Special Assistant to Travis, the Chairman of the Board of Parole.

In 1999 Mike Hayden ("Hayden") was the Acting Chief of Operations of the DOP, later becoming the Director of the Central Adirondack Region of the DOP in 2000. Ronald White ("White" or "Dir. White") was the Director for Upstate Parole Operations for DOP. Terrance Tracy ("Tracy") served as Counsel to DOP. From October 1995 to April 2002, Kenneth Graber ("Graber" or "Commr. Graber") was a member/commissioner of the Board of Parole.

Kevin McCarthy ("McCarthy" or "Parole Officer McCarthy") was a Parole Officer with DOP, assigned to the Absconder Search Unit and handled Bureau of Special Services Cases in the Syracuse area. George Chard ("Chard" or "Parole Officer Chard") was a Senior Parole Officer employed by DOP. Douglas Smith ("Smith" or "Supr. Smith") was Area Supervisor for Syracuse and Utica DOP Offices. (Smith Decl. ¶ 1.) Plaintiff disputes that Smith's position covered both offices, and asserts that Robert Kent was the Area Supervisor for the Syracuse DOP Office. (Pl. Ex. JJJ (Kent Dep.) at 25.) Salvatore Perritano ("Perritano" or "Parole Officer Perritano") was a Parole Officer with DOP.

At all times relevant to the instant action, the Board of Parole consisted of up to sixteen members appointed by Gov. Pataki. During a Board member's term of service, he or she may be removed by the Governor for cause after an opportunity to be heard. The member designated as Chairman of the Board is selected by and serves at the pleasure of the Governor. The Board of Parole possesses authority regarding whether inmates should be granted parole, and whether parolees should have their parole revoked, whilethe DOP prepares inmate cases for parole review and supervises parolees when they are released.

During his tenure as Governor, Pataki had a stated policy of instituting reforms to the laws of New York State to eliminate parole for all individuals sentenced as violent felons, which he attempted to implement by asking the State Legislature to change the laws regarding parole. Pataki was successful during his first term, ending certain types of early release and work release for violent felons by executive order. Also during Pataki's first term, the legislature amended the statutes regarding the sentencing of repeat felony offenders, which eliminated parole for such prisoners. Pataki did not involve himself in the day to day operations of the DOP or Board of Parole.

b. The Syracuse Defendants

The Syracuse Defendants are comprised of the City of Syracuse, Syracuse Police Officer Thomas Murfitt ("Murfitt" or "SPD Officer Murfitt"), Syracuse Police Officer Rory Gilhooley ("Gilhooley" or "SPD Officer Gilhooley") and former Chiefs of the Syracuse Police Department Dennis DuVal, Gary Miguel, and John Falge.

2. Plaintiff's History, Parole Review, and Release

Plaintiff entered DOCCS custody on May 26, 1970, to serve a twenty-five year to life sentence upon his conviction of felony murder in New York County Supreme Court, stemming from his involvement in the shooting death of a police officer outside a New York City discotheque on October 7, 1968. The conviction was upheld by the New York Court of Appeals. People v. Bornholdt, 33 N.Y.2d 75 (1973).

In 1978, Plaintiff escaped from prison and remained at large for nearly three years until he was apprehended in the State of California and returned to DOCCS custody inNew York.

Plaintiff first became eligible for release to parole supervision in 1997, and his initial application was denied. Between 1997 and 1999, Plaintiff appeared twice before the Parole Board, with each panel consisting of two members/commissioners. Neither of those panels could reach a consensus for granting or denying parole, thus leaving the issue of Plaintiff's release to parole supervision unresolved.

Shortly after those appearances, Plaintiff's attorney, Myron Beldock, Esq. ("Beldock"), telephoned Tracy, DOP's counsel, to discuss the previous Board panels which had been deadlocked. While Tracy was familiar with Plaintiff's name from his tenure as an Assistant Attorney General, Tracy was not involved in Plaintiff's previous litigation, the murder conviction, or the parole proceedings. Beldock inquired whether it would be possible for Plaintiff to appear before a three-member panel, so as to avoid the possibility of another deadlock, and sent a letter to Tracy to the same effect. Tracy shared that letter with Chair. Travis.

Tracy also discussed Plaintiff's case with Board Commissioner Mary Ellen Jones, who informed Tracy of Plaintiff's murder conviction. Tracy, Asst. Grant, and Dir. White had all, in some manner, become aware of Plaintiff's case prior to Plaintiff's next Parole Board appearance. Plaintiff's name had appeared on a list of high-profile cases due to the nature of his conviction, which was prepared by non-party Anthony Molik ("Molik"), the Facility Parole Officer at Attica Correctional Facility.

Plaintiff was again considered for parole release on January 11, 1999, by a two-member panel consisting of Commissioners Graber and Lawrence Scott. Graber statesthat he was not familiar with Plaintiff or his case prior to the January 11 hearing.² (Graber Decl. ¶ 5.)

Each commissioner would be assigned a particular parole application case, and, on the day of Plaintiff's hearing, Commissioner Scott was responsible for Plaintiff's case and conducted Plaintiff's interview.³ Following that hearing, Commissioners Graber and Scott voted to grant parole release to Plaintiff with an open date of March 11, 1999. Graber states that at the time the decision was made to release Plaintiff, he was unaware of Plaintiff's thirty-four month escape from prison. (Graber Decl. ¶ 9.) Although not specifically enumerated in N.Y. Exec L. § 259-i (setting forth mandatory considerations for discretionary release on parole), a prior escape is generally considered a negative component of an inmate's institutional record, which must be considered by the Parole Board in determining whether to grant an inmate parole.⁴ (Travis Decl. ¶ 17.)

Asst. Grant was made aware of the results of Plaintiff's parole hearing from a DOP computer printout, while Tracy became aware of of the results on the day of the hearingor the following day. Subsequently, Tracy reviewed Plaintiff's "central file," a less complete version of the DOP's "facility file," which is maintained at the correctional facility where the inmate is housed, in this case, Attica Correctional Facility. (Tracy Decl. ¶¶ 11, 14; White Decl. ¶ 16.) Tracy had not previously reviewed either of Plaintiff's DOP files. A few days following Plaintiff's grant of parole, Chair. Travis was notified by Tracy that Commr. Graber, in reviewing Plaintiff's case, had inadvertently overlooked Plaintiff's escape from custody in his file.

Katherine Lapp ("Lapp" or "Dir. Lapp"), Director of Criminal Justice for the New York State Division of Criminal Justice Services ("DCJS") first learned of Plaintiff's parole decision sometime in 1999. Lapp's role as Director of DCJS was to oversee the state police, DOCCS, DOP, and Crime Victims Board, in addition to other state criminal justice agencies.

According to the State Defendants, Chair. Travis suggested to Asst. Grant that he call Lapp to notify her that Plaintiff had been released on parole. (Grant Decl. ¶ 11.) Plaintiff disputes this, claiming that Travis did not recall telling Grant to notify Lapp of the Parole Board's decision, and that Travis only "knew that [Lapp] was involved after the [parole] case was decided. . . ." (Pl. Ex. N (Travis Dep.) at...