Victory v. Pataki
| Decision Date | 01 February 2016 |
| Docket Number | No. 13–3592.,13–3592. |
| Citation | 814 F.3d 47 |
| Parties | Albert Lopez VICTORY, Plaintiff–Appellant, v. George PATAKI, Former Governor of the State of New York in his official capacity, Brion D. Travis, Ex–Chair, Board of Parole, New York State Division of Parole, Thomas P. Grant, Special Assistant to the Chair of the Board of Parole, Mike Hayden, Acting Director of the Division of Parole, Ronald P. White, Director of Upstate Field Operations for the Division of Parole, Terrance X. Tracy, Chief Counsel to the Chair of the Board of Parole, Kenneth E. Graber, Commissioner of the Board of Parole, George Chard, Senior Parole Officer, Utica Parole Office, Douglas C. Smith, Ex–Supervising Parole Officer, Utica Parole Office, Perritano, "John," First Name Unknown, Parole Officer, Utica Parole Office, Kevin McCarthy, Head of the Special Services Bureau for the Division of Parole, Central New York Area, Thomas Murfitt, Syracuse Police Officer, Gilhooley, "John," first name unknown, Syracuse Police Officer, Timothy Foody, Ex–Police Chief, Syracuse Police Department, John Does, 1, 2, 3, etc., Jane Does 1, 2, 3, etc., (whose identities are unknown but who are believed to be either employees of the Division of Parole, the Governor's Office, and/or the Syracuse Police Department); all such individual defendants being sued both in their individual and official capacity, The City of Syracuse, New York, Dennis Duval, Chief of Police of the Syracuse Police Department, George Alexander, Chair, Board of Parole, in his official capacity, Governor David Paterson, Rory D. Gilhooley, Syracuse Police Officer, John Falge, Ex–Police Chief, Syracuse Police Department, Gary Miguel, Police Chief, Syracuse Police Department, Eliot Spitzer, Governor of the State of New York in his official capacity, Defendants–Appellees. |
| Court | U.S. Court of Appeals — Second Circuit |
Myron Beldock, Beldock Levine & Hoffman LLP, New York, NY, for Plaintiff–Appellant Albert Lopez Victory.
Andrew B. Ayers, Assistant Solicitor General, Office of the Attorney General (Eric T. Schneiderman, Attorney General of the State of New York; Nancy A. Speigel, Senior Assistant Solicitor General, on the brief), for Barbara D. Underwood, Solicitor General, Albany, NY, for New York State Defendants–Appellees.
Shannon T. O'connor, Assistant Corporation Counsel, for Robert P. Stamey, Corporation Counsel for the City of Syracuse, Syracuse, NY, for Syracuse Defendants–Appellees.
Before: POOLER and PARKER, Circuit Judges.1
Plaintiff-appellant Albert Lopez Victory, a former inmate of the New York Department of Corrections and Community Supervision ("DOCCS"), appeals from the August 27, 2013 order of the United States District Court for the Western District of New York (Skretny, C.J. ), granting summary judgment for Defendants and dismissing his complaint in its entirety. See Victory v. Pataki, No. 02–cv–0031, 2013 WL 4539296 (W.D.N.Y. Aug. 27, 2013). On appeal, Victory challenges the dismissal of those claims brought pursuant to 42 U.S.C. § 1983 against various New York State officials and employees ("Defendants") for violating and conspiring to violate his right to due process in connection with the rescission of his grant of parole.2 Because we conclude that genuine issues of material fact remain with respect to the personal involvement of certain Defendants in rescinding Victory's parole, we vacate the district court's dismissal of the due process claim and remand for further proceedings.
In 1970, Victory entered DOCCS custody to serve a sentence of twenty-five years to life upon his conviction of felony murder, stemming from his involvement in the 1968 shooting death of a police officer. See People v. Bornholdt, 33 N.Y.2d 75, 350 N.Y.S.2d 369, 305 N.E.2d 461 (1973) (upholding conviction); Victory v. Bombard, 570 F.2d 66, 70 (2d Cir.1978) (). In 1978, while away from Greenhaven Correctional Facility for dental treatment, Victory's guards permitted him to enter a hotel room with his girlfriend, unshackled. See Tremarco v. N.Y. State Bd. of Parole, 87 A.D.2d 114, 450 N.Y.S.2d 544, 545 (2d Dep't 1982). Victory escaped and remained at large for three years until he was apprehended in California in 1981.3 See Victory v. Coughlin, 165 A.D.2d 402, 568 N.Y.S.2d 186, 186–87 (3d Dep't 1991).
Defendants do not dispute that Victory behaved as a model prisoner throughout the 21 years he was incarcerated following his return to DOCCS custody. Victory obtained three college degrees, participated in numerous educational programs, and received commendations from DOCCS on four occasions.
Victory first became eligible for parole release in 1997. After his first application was denied, Victory appeared on two more occasions before a two-member panel of the Board of Parole, but neither panel could reach a consensus and the decision was deferred. At each of these hearings, Victory's escape from Greenhaven was briefly discussed.
On January 11, 1999, Victory was considered for parole release for a fourth time by a two-member panel consisting of Commissioners Kenneth Graber and Lawrence Scott. The record before the Parole Board included the unequivocal recommendations of eight correctional officers, with no letters in opposition. Although the Board of Parole had solicited letters from the District Attorney's office in 1995, before Victory became eligible for parole, no letters from the judge or prosecutors in his criminal case had been received. At that hearing, Commissioner Graber assured Victory that the panel had reviewed all the documents in his file, stating:
We have reviewed your documents. We're familiar with everything. We may not refer to every single thing, but that doesn't mean we're not aware of it. There is quite a lot here. We could spend a whole day with you, which we can't do. We have reviewed everything. Our questioning is so we can clear up any questions we have.
App'x at 934–35. The information before the panel contained numerous prominent references to Victory's 1978 escape, including a notation in blue stating "escaped and returned," App'x at 859, the statement: "ESCAPE FROM GHCF, 5/5/78, DURING WHICH ... SUB[J]ECT WAS AT LARGE, FOR 2 ½ YR PERIOD PRIOR TO BEING RETURNED FROM CALIFORNIA," App'x 1227, and a newspaper article about the escape. Although the January 11, 1999 panel, unlike the prior panels, did not explicitly mention Victory's escape, it did address Victory's disciplinary record and it noted that Victory—who had originally been incarcerated for the present offense 27 years earlier in 1968—got married "[t]wenty-one years ago, [in] 1978," App'x at 941, and had "one daughter who is now eighteen," App'x at 943.
Following the January hearing, Graber and Scott granted Victory parole. The Board of Parole's decision assigned him an open release date of March 11, 1999 "or earlier."4 App'x at 1290.
The core of Victory's due process claim concerns the events precipitating the parole rescission hearing that followed. "The Board's broad discretion to rescind parole is limited only by the requirement that there be substantial evidence of significant information not previously known by the Board." Diaz v. Evans, 90 A.D.3d 1371, 935 N.Y.S.2d 224, 225 (3d Dep't 2011) (citations omitted); see 9 N.Y.C.R.R. § 8002.5(b)(2)(i) (2002). According to Victory, upon learning that the Board of Parole had granted Victory parole status, Defendants violated and conspired to violate his right to due process by depriving him of an unbiased panel at his rescission hearing and fabricating a false basis for rescission premised on Commissioner Graber's purported ignorance of Victory's escape. As Defendants acknowledged, Victory's submissions to the district court included "copious allegations" regarding how the rescission process was initiated. State Appellees Br. at 8. Unless otherwise noted, the following allegations are undisputed.
On January 12, 1999, the day after the January panel granted Victory parole, Thomas P. Grant, the Special Assistant to the Chairman of the Board of Parole, received a media inquiry from Court TV requesting the outcome of Victory's parole hearing. Grant then called Terrance X. Tracy, Chief Counsel to Brion D. Travis, Chairman of the Board of Parole, to inform him that Victory had been granted release. Grant testified that he also notified Travis of the parole determination because the case was noteworthy, and that Travis suggested that Grant notify non-party Katherine Lapp, who at that time served as the Governor's Director of Criminal Justice. Grant then called Lapp and conveyed the panel's determination along with the nature of Victory's offense and his history as an escapee. Five minutes later, Lapp called Grant back to request that he immediately send the file that had been before the January 11, 1999 panel to her in Albany via overnight mail. Grant testified that Travis said that Lapp could see the file because of the position she held, and also noted that he wanted Tracy to review the file. Michael Hayden, Deputy Chief of Operations of the Division of Parole, and Ronald White, a Regional Director, arranged for the file to be sent to Lapp.
Throughout the period Victory was eligible for parole release, then-Governor George Pataki espoused a "very strong belief that parole should not be granted to violent felons," of which belief at least everyone in Governor Pataki's "inner circle" was aware. App'x at 785. Defendants concede that Governor Pataki heard about the decision to grant Victory parole, possibly as a result of a call from a reporter. State Appellees Br. at 8. Governor Pataki testified that, upon learning of Victory's grant of parole release, he "made it obvious to people in [his] office [that he] was unhappy with that decision." App'x at 783.
Lapp had never previously been...
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