# Martinez v. Unknown Officials at the Albany State Parole Office

> District Court, E.D. New York · March 28, 2023

URL: https://www.frixlaw.com/law-library/cases/10309461

## Case

- **Court:** District Court, E.D. New York
- **Decided:** March 28, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------------------X

RICHARD MARTINEZ,

Plaintiff,
MEMORANDUM DECISION
AND ORDER
- against -
20-CV-111 (AMD) (ST)
SR. PAROLE OFFICER C. BROWNE and PAROLE
OFFICER C. BRATTON,

Defendants.
-------------------------------------------------------------------X
ANN M. DONNELLY, United States District Judge:

O n January 2, 2020, the pro se plaintiff filed this action pursua nt to 42 U.S.C. § 1983,
alleging constitutional violations by Parole Officer Chavela Bratton, S enior Parole Officer
Hubert Browne and former Deputy Commissioner of Community Supervision Steven Claudio.

(ECF No. 1.) I granted the defendants’ motion to dismiss as to the plaintiff’s Eighth Amendment

claims and his claims against Deputy Commissioner Steven Claudio, and allowed the other

claims to proceed. (ECF No. 30.) On May 27, 2022 the defendants moved for summary
judgment. (ECF No. 54.) For the reasons discussed below, the moti on is granted in part and
denied in part.
BACKGROUND

The plaintiff, a native New Yorker, was convicted of murder in New Mexico, and was

sentenced to life in prison. He was paroled on December 21, 2006. (ECF No. 54-2 ¶2; 57-1 at

31.) He returned to New York to serve his parole under the supervision of the New York State
Department of Corrections and Community Supervision (“DOCCS”). (Id. ¶3.) As a parolee, the
plaintiff was subject to certain special conditions, including a prohibition against using any
substance that “impairs his stability without proper medical authorizations,” and requiring him to
participate in and successfully complete any programs to which his parole officer referred him.
(ECF No. 55-1.)
The plaintiff experiences chronic pain from injuries to his back, chest and knee, and from

osteoarthritis. (ECF No. 57-1 at 36-37.) To address this pain, the plaintiff has been prescribed
various muscle relaxers and narcotic pain medications, including codeine, over the years. (ECF
No. 57-1 at 21.) In order to comply with his parole conditions, the plaintiff regularly gave his
prescriptions to his parole officer. (Id. at 55.) Before he was assigned to Officer Bratton, he
“never had difficulties” with his parole officers about his prescriptions, and no other parole
officer had required him to attend drug treatment. (ECF No. 57-1 at 55, 57.) Before he moved
to Queens, the plaintiff’s parole officer would come to his home once a month and check in by
phone “every once in a while.” (Id. at 55-56.) The plaintiff claims that before June 2017, he
tested positive for controlled substances only once or twice, and only because he was taking his
prescribed medication. (ECF No. 57-1 at 71.)

The plaintiff also concedes, however, that he violated the conditions of his parole when
he used heroin “on and off” in 2010, when he was not being tested for drug use, and that he
sought treatment on his own. (Id. a 23-25.) In addition, the plaintiff used heroin “off and on in
2018, 2019 and 2021, as well as methadone in 2019 and 2021, but “wasn’t severely addicted to
the drug and only used it on occasion when he didn’t have any pain medication or ran out of pain
meds.” (ECF No. 64-1 ¶6.)
The plaintiff moved to Queens in 2016 and was assigned to that borough’s parole office.
(ECF No. 57-1 at 52.) Records show that the defendant checked in with his parole officers
weekly or biweekly, with home visits, office reports and phone calls. (ECF No. 55-2 at 27-38.)
In May 2018, the plaintiff was assigned to Parole Officer Chavela Bratton. (ECF No. 55 ¶5.)
Four other parole officers, whom the plaintiff does not name, knew that the plaintiff had various
prescriptions, and warned the plaintiff “to be careful” with Officer Bratton. (ECF No. 57-1 at
53.) The plaintiff kept the same schedule with Officer Bratton, but “every time” he saw her

Officer Bratton told him to stop taking his prescription medication. He assured her he was not
addicted, but she “threatened him with incarceration,” and told him to “shut up” whenever he
tried to talk to her. (ECF No. 57-1 at 58-59.) The plaintiff gave Officer Bratton two
prescriptions, for codeine and naproxen. He had another prescription for morphine, which he got
after he fell in 2018. (Id. at 18, 63-64, 69.)
In October 2017, the plaintiff tested positive for opiates, and he showed Officer Bratton
his prescription for hydrocodone. (ECF No. 55-2 at 25.) Officer Bratton ordered the plaintiff to
attend a drug treatment program. Although the plaintiff resisted, he eventually enrolled at
Samaritan Village in Queens, and tested negative for drugs. (ECF No. 57-1 at 26; ECF No. 55-2
at 24.) Counselors and medical specialists at the program determined that the plaintiff was not

“addict[ed] to any drugs, wasn’t using any illegal drugs, had no drug problem whatsoever and
didn’t need to go to a program.” (ECF No. 1 at 71.) They gave him a letter stating that he did
not have a drug problem; when he gave the letter to Officer Bratton, she “exploded” and
“continu[ed] to threaten and harass” the plaintiff. 1 (Id.; ECF No. 57-1 at 67.) Officer Bratton’s
notes reflect that she spoke to the director of Samaritan Village, who confirmed that they were
“awaiting test results to see if [the plaintiff] meets criteria for admission to program as it appears
[the plaintiff] has taken medication as prescribed by doctor for medical condition.” (ECF No.
55-2 at 23 (entry dated December 7, 2017).)

1 The plaintiff claims that Officer Bratton has the only copy of this letter. Neither party produced the
letter with their submissions.
During this period, the plaintiff wrote to the Albany Parole Office twice, complaining
about Officer Bratton, including that she forced him into drug treatment. The Albany office
ignored the first letter but opened an investigation into Officer Bratton after the second, in
January 2018. (ECF No. 1 at 3; ECF No. 57-1 at 75.) Officer Bratton subsequently told the

plaintiff, “I’m going to get you.” (ECF No. 57-1 at 77.) On January 17, 2018 Officer Bratton
took the plaintiff to Senior Parole Officer Hubert Browne’s office, and yelled at the plaintiff in
front of Officer Brown. (ECF No. 55-2 at 22; ECF No. 56 ¶¶7-9.) When the plaintiff
complained to Officer Browne about Officer Bratton’s conduct, Officer Brown said, “I support
my officers and I don’t care what you have to say.” (ECF No. 1 at 3.) Officer Browne denies
making this statement. (ECF No. 56 ¶8.) His contemporaneous notes reflect that the plaintiff
denied accusing Officer Bratton of threatening to put him in jail and that he said that “he had no
issues” with Officer Bratton. (ECF No. 55-2 at 22; see also ECF No. 56 ¶¶9.) An unsigned
January 31, 2018 entry on the plaintiff’s parolee chronological report “recommend[ed] change to
level 2, new arrest.”2 (ECF No. 55-2 at 21.) Officer Bratton continued to check in on the

plaintiff, without incident, with home visits and phone calls for the next few months.
On April 4, 2018 the plaintiff gave Officer Bratton his prescription for naproxen and
diltazen, neither of which are opiates or synthetic opiates. (ECF No. 55 ¶12.) On April 25,
2018, the plaintiff tested positive for opiates, synthetic opiates and morphine. (ECF No. 55-2 at
19; ECF No. 55-4). In contemporaneous notes, Officer Bratton wrote that neither the naproxen
or the diltazen would have resulted in positive morphine or synthetic opiate results. (ECF No.
55-2 at 19.) The plaintiff maintains that Officer Bratton forged the positive result for the
synthetic opiate. (See e.g., ECF No. 64-1 ¶17; ECF No. 65 ¶6.) He says that he had a

2 Neither party explains the meaning of this entry.
prescription for morphine, which he tried to show to Officer Bratton, but that she “did not want
to hear about it, didn’t care about it and didn’t let [him] present his prescriptions.” (ECF No. 65-
1 ¶18.) She referred the plaintiff to the “PAC” drug treatment program, and the plaintiff enrolled.
(ECF No. 55-2 at 19.).

In notes from a May 10, 2018 office visit, Officer Bratton wrote that the plaintiff said that
he found the PAC program helpful, that he was thankful for the referral. He also said that he had
asked his girlfriend to marry him, and that they were getting married on May 19 at a Queens
church. (ECF No. 55-2 at 18; ECF No. 57-1 at 124.) He also said that he was hiring a lawyer to
file a lawsuit against DOCCS. (ECF No. 55-2 at 18.)
On May 15, 2018, the plaintiff bought a bag of heroin and snorted it. He also took one
pill of his prescription codeine. (ECF No. 57-1 at 98-100; ECF No. 58 at 3; ECF No. 64-1 ¶19.)
On May 16, 2018, the plaintiff tested positive for heroin “and/or synthetic opiates.” (ECF No.
57-5.) He admitted to Officer Bratton that he had used heroin, but she “started yelling” at him.
(ECF No. 57-1 at 104.) She directed him to come to the parole office the next morning for

referral to an inpatient program, or she would have him arrested. (ECF No. 57-1 at 82; ECF No.
55-2 at 18.)
However, the plaintiff was not eligible for inpatient treatment, apparently because he was
an out-of-state parolee. (ECF No. 55-2 at 17; ECF No. 55 ¶16.) On May 17, 2018, Officer
Bratton met with Officer Browne and the bureau chief. (ECF No. 55-2 at 17.) They agreed that
“a warrant would be issued” for the plaintiff, because Officer Bratton had made “several
attempts” to get treatment for the plaintiff, and he “continued to test positive for controlled
substances and failed to complete a drug treatment program in violation of his parole
conditions.”3 (ECF No. 56 ¶¶10-11; see also ECF No. 55-2 at 17; ECF No. 55 ¶19.)
When the plaintiff went to the parole office on May 17, 2018, he was arrested and taken
to Rikers Island. (ECF No. 55 ¶21.) It was his first violation in twelve years of parole. (ECF

No. 62 at 15.) The plaintiff states that “on the day they took [him] to jail,” he told Officer
Browne that Officer Bratton had set him up. (ECF No. 57-1 at 115.) According to the plaintiff,
Officer Browne said, “I don’t care. I’m going to support her.” (Id.)
A few days later, on May 21, 2018, Officer Bratton went to Rikers to give the plaintiff
parole violation papers: a Notice of Violation (ECF No. 55-7) and a Probable Cause Hearing
Waiver. (ECF No. 55-8.) The Notice of Violation bears the plaintiff’s “signature”—which
looks like an initial— at three different places, including under a checked box next to this
sentence: “I do not wish to have a preliminary hearing.” (ECF No. 55-7.) The top of the
document reads, “A preliminary hearing on these charges has been scheduled on . . . .” Next to
that statement, the word “WAIVED” is hand-written in capital letters. At the bottom of the page,

above the final signature, “WAIVED” is again handwritten in a space labeled “I am scheduled
for a preliminary hearing . . . ” (Id.)
The plaintiff claims that Officer Bratton covered the top portion that stated “waived”
when she gave him the papers. (ECF No. 64-1 ¶¶32-24.) The plaintiff admits that he signed in
two of the three spaces, but denies signing the space beneath the checked box waiving the
preliminary hearing. (ECF No. 57-1 at 107-09.) According to the plaintiff, that signature is
“different from the other two,” (Id. at 109) and “somebody else signed it.” (Id. at 107.)

3 The government does not specify who issued the warrant, and does not provide a copy of the warrant.
The second document, labeled “Probable Cause Hearing Waiver,” lists five alleged
violations, including use of a controlled substance and morphine without proper medical
authorization and not participating in or completing drug treatment. (ECF No. 55-8.) On the
bottom of the page in capital letters the document reads, “I admit to the violations as stated above

and waive all of my procedural rights including the right to a probable cause hearing.” The
document also included the disclaimer that “information related to your admission will be
forwarded to the sending state for further proceedings.” (Id.)
The plaintiff admits that he signed this document, but claims Officer Bratton did not let
him read it. (ECF No. 57-1 at 111.) According to the plaintiff, he “couldn’t refuse” to sign the
paper, because Officer Bratton said “if I wouldn’t sign the paperwork I wouldn’t get out,” and
that if he did sign he would be released in one or two weeks. (Id. at 111-12.) Officer Bratton
disputes this characterization. She says that she explained the process of preliminary and final
hearings, and that he “wanted to skip the preliminary hearing and proceed straight to the final
hearing because he believed it would allow him to be released more quickly.” (ECF No. 55

¶¶23, 26.)
The plaintiff had a preliminary revocation hearing before the Board of Parole on June 1,
2018, but the case was adjourned because Officer Bratton was a “no show” and there was no
“paperwork” for the violation. (ECF No. 1 at 4; ECF No. 62 Ex. A.) The hearing officer told the
plaintiff that he would be released on June 6, 2018, but he was not released. (ECF No. 1 at 4.)
On June 20, 2018, Officer Bratton submitted a request to New Mexico’s parole office to “return
subject [to New Mexico] for final hearing.” (ECF No. 55-2 at 17.) On July 31, 2018, New
Mexico “elected not to pursue extradition,” and requested that the Queens Parole Office
“immediately lift the warrant and resume supervision with the support of increased reporting and
a higher level of treatment.” (ECF No. 55-2 at 16.)
The plaintiff’s fiancée stopped speaking to him while he was incarcerated, and he lost his
apartment, his belongings and his pets. (ECF No. 1 at 4.) When he was released on July 31, he

lived on the streets for a few days, and then in a veterans’ shelter, where he used heroin “a
couple of times.” (ECF No. 57-1 at 29.) Officer Bratton was still his parole officer until August
22, 2018, when he was reassigned. (Id.)
On January 18, 2019, the Ninth Judicial District Court in Clovis, New Mexico, where the
plaintiff was convicted and sentenced, issued an Amended Judgment, Sentence and
Commitment, imposing a ten-year term of parole, to run from the date the plaintiff was released
from the New Mexico prison. (ECF No. 1 at 5.) On March 15, 2019, the New Mexico Adult
Parole Board issued a Certificate of Parole Discharge to the plaintiff, ending his parole term
effective March 6, 2019. (ECF No. 28 at 30.)
On January 2, 2020, the plaintiff filed this action alleging that Officer Bratton falsified

his drug test results and had him arrested because he complained about her to the Albany Parole
Office. He claims that he was falsely arrested and detained for over three months as a result of
Officer Bratton’s retaliatory conduct. He also alleges he was denied due process when Officer
Bratton induced him to waive his probable cause hearing, at which he could have challenged the
arrest. He alleges that Officer Browne did not properly supervise Officer Bratton, which enabled
her to harass the plaintiff and retaliate against him. He seeks injunctive relief to prevent further
harassment and retaliation, as well as compensatory and punitive damages. (Id. at 8-9.)
STANDARD OF REVIEW
Summary judgment is appropriate only if the parties’ submissions, in the form of
deposition transcripts, affidavits, or other documentation, show that there is “no genuine dispute
as to any material fact,” and the movant is “entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The
movant has the “burden of showing the absence of any genuine dispute as to a material fact.”
McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir. 1997); Tsesarskaya v. City of New York,
843 F. Supp. 2d 446, 453–54 (S.D.N.Y. 2012) (“While disputes over facts that might affect the
outcome of the suit under the governing law will properly preclude the entry of summary
judgment[,] [f]actual disputes that are irrelevant or unnecessary will not be counted.”) (internal
quotations omitted). “Once the moving party has met this burden, the party opposing summary
judgment must identify specific facts and affirmative evidence that contradict those offered by
the moving party to demonstrate that there is a genuine issue for trial.” Ethelberth v. Choice Sec.
Co., 91 F. Supp. 3d 339, 349 (E.D.N.Y. 2015) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324

(1986)). “The non-moving party ‘may not rely on mere conclusory allegations nor speculation,
but instead must offer some hard evidence showing that [their] version of the events is not
wholly fanciful.’” Id. (quoting D’Amico v. City of N.Y., 132 F.3d 145, 149 (2d Cir. 1998)). “In
reviewing the evidence and the inferences that may reasonably be drawn, we may not make
credibility determinations or weigh the evidence . . . Credibility determinations, the weighing of
the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those
of a judge.” Proctor v. LeClaire, 846 F.3d 597, 607–08 (2d Cir. 2017) (internal citations and
alterations omitted).
“Where one party is proceeding pro se, the Court reads the pro se party’s papers liberally
and interprets them ‘to raise the strongest arguments that they suggest.’” Thorne v. Lewis, No.
19-CV-24, 2021 WL 4324475, at *2 (D. Conn. Sept. 23, 2021) (quoting Willey v. Kirkpatrick,
801 F.3d 51, 62 (2d Cir. 2015) (internal quotation marks and citation omitted)). Nevertheless,

a pro se litigant may not rely on allegations unsupported by admissible evidence to overcome a
properly supported motion for summary judgment. Weinstock v. Columbia Univ., 224 F.3d 33,
41 (2d Cir. 2000). In deciding whether summary judgment is appropriate, the court must resolve
all ambiguities and draw all reasonable inferences in favor of the non-moving party. Kaytor v.
Elec. Boat Corp., 609 F.3d 537, 545 (2d Cir. 2010); Peralta v. Chromium Plating & Polishing
Corp., No. 99-cv-3996, 2000 WL 34633645, at *3 (E.D.N.Y. Sept. 15, 2000). Because the
defendants are moving for summary judgment, I draw all reasonable inferences in the plaintiff’s
favor.
DISCUSSION
To establish a claim under Section 1983, the plaintiff must allege that “the conduct

complained of . . . [was] committed by a person acting under color of state law,” and “deprived .
. . [him] of rights, privileges or immunities secured by the Constitution or laws of the United
States.” Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994); see Baker v. McCollan, 443 U.S.
137, 144 n.3 (1979) (Section 1983 “is not itself a source of substantive rights, but a method for
vindicating federal rights elsewhere conferred by those parts of the United States Constitution
and federal statutes that it describes.”) Moreover, he must allege the direct or personal
involvement of each of the named defendants in the alleged constitutional deprivation. Farid v.
Ellen, 593 F.3d 233, 249 (2d Cir. 2010); Farrell v. Burke, 449 F.3d 470, 484 (2d Cir. 2006) (“It
is well-settled in this Circuit that personal involvement of defendants in alleged constitutional
deprivations is a prerequisite to an award of damages under § 1983.”).
I. False Arrest and Wrongful Imprisonment
Probable cause is an absolute defense to false arrest and false imprisonment. Turner v.

City of New York, No. 18-CV-9626, 2019 WL 6173701, at *3 (S.D.N.Y. Nov. 19, 2019) (citing
Jaegly v. Couch, 439 F.3d 149, 151 (2d Cir. 2006)). Probable cause exists when a police officer
has “reasonably trustworthy information[] as to facts and circumstances that are sufficient to
warrant a person of reasonable caution in the belief that an offense has been or is being
committed by the person to be arrested.” Betts v. Shearman, 751 F.3d 78, 82 (2d Cir. 2014)
(citations omitted). A court determining whether there is probable cause does not “consider the
subjective thoughts of arresting officers;” instead, the probable cause inquiry is an objective test
that “depends upon the reasonable conclusion to be drawn from the facts known to the arresting
officer at the time of the arrest.” Brodie v. Fuhrman, No. 07-CV-4212, 2010 WL 1189347, at *5
(E.D.N.Y. Mar. 29, 2010). A court may decide the question of probable cause as a matter of law

“if there is no dispute as to the pertinent events and the knowledge of the officers.” Weyant v.
Okst, 101 F.3d 845, 853 (2d Cir. 1996).
The defendants claim they had probable cause to arrest the plaintiff, and that in any
event, they had reasonable cause and are entitled to qualified immunity. Parole officers are
authorized to arrest parolees if they have reasonable cause to believe that a parolee has violated
the conditions of his parole, and if a warrant has been issued. See People ex rel. Wells v.
DeMarco, 168 A.D.3d 31, 43 (2d Dep’t 2018) (citing N.Y. Executive Law § 259-i(3)(a)(i)).
Reasonable cause is a less exacting standard than probable cause. See generally Griffin v.
Wisconsin, 483 U.S. 868, 875-880 (1987) (“In some cases—especially those involving drugs or
illegal weapons—the probation agency must be able to act based upon a lesser degree of
certainty than the Fourth Amendment would otherwise require in order to intervene before a
probationer does damage to himself or society.”) Pursuant to N.Y. Exec. Law § 259–i, “[i]f a
parole officer believes that a parolee . . . has violated one or more conditions of his post-release

supervision, the parole officer, in consultation with a senior parole officer, may issue a warrant
for his arrest.” Dupree v. Pough, 454 F. Supp. 2d 166, 170 (S.D.N.Y. 2006) (citing N.Y. Exec.
Law § 259–i(3)(a)(i)).4
Officer Bratton had reasonable cause to arrest the petitioner based on his admitted drug
use in violation of his parole conditions. The plaintiff concedes that he snorted heroin on May
15, 2018, and then tested positive for heroin the next day. Moreover, he admits that he told
Officer Bratton that he used heroin. (ECF No. 64-1 ¶19; ECF No.57-1 at 103.) Since there is
no dispute that the plaintiff used heroin in violation of the conditions of his parole, there is no
question that Officer Bratton had reasonable or probable cause to arrest the plaintiff. Because
the plaintiff was lawfully arrested, his imprisonment based on that arrest was also lawful. Leon

v. City of New York, No. 09-CV-8609, 2010 WL 2927440, at *4 (S.D.N.Y. July 1, 2010) (“False
arrest and false imprisonment claims are identical in New York.”) (citing Posr v. Doherty, 944
F.2d 91, 96 (2d Cir.1991)).

4 “Parolees are not entitled to the same level of absolute liberty afforded other citizens. Instead, their
liberty rights are ‘properly dependent on observance of special parole restrictions.’” Cusamano v.
Alexander, 691 F. Supp. 2d 312, 319 (N.D.N.Y. 2009) (quoting Morrissey v. Brewer, 408 U.S. 471, 480,
92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)). “Under N.Y. Comp. Codes R. & Regs., tit. 9, § 8003.3, parolees
may be subject to special conditions—the imposition of which is left to the discretion of the New York
State Board of Parole and parole officers.” Rodriguez v. City of New York, No. 21-CV-8565, 2022 WL
3587598, at *11 (S.D.N.Y. Aug. 22, 2022). “The Parole Board or parole officer’s discretionary
imposition of special conditions under this title is ‘not subject to judicial review in the absence of a
showing that the board or its agents acted in an arbitrary and capricious manner.’” Id. (quoting Pena v.
Travis, No. 01-CV-8534, 2002 WL 31886175, at *9 (S.D.N.Y. Dec. 27, 2002)). There is no such
allegation here.
Accordingly, the defendant officers are entitled to summary judgment on the Section
1983 false arrest and false imprisonment claims.
II. Retaliation
The plaintiff’s retaliation claim requires a different analysis, although the result is the

same. Nieves v. Bartlett, 139 S. Ct. 1715, 1732 (2019) (J. Gorsuch, concurring) (“Like a
Fourteenth Amendment selective arrest claim, a First Amendment retaliatory arrest claim serves
a different purpose than a Fourth Amendment unreasonable arrest claim, and that purpose does
not depend on the presence or absence of probable cause.”) “Although probable cause should
generally defeat a retaliatory arrest claim, a narrow qualification is warranted for circumstances
where officers have probable cause to make arrests, but typically exercise their discretion not to
do so.” Id. at 1727 (citations omitted). However, as in the Fourth Amendment context, whether
an arrest was retaliatory is an objective test that does not probe an officer’s subjective intent. Id.
at 1725 (“When reviewing an arrest, we ask whether the circumstances, viewed objectively,
justify the challenged action, and if so, conclude that action was reasonable whatever the

subjective intent motivating the relevant officials.” (internal quotation marks, alterations and
citations omitted) (emphasis in original)).
The plaintiff argues that Officers Bratton and Browne arrested him not because of the
parole violation, but to get back at him for complaining about Officer Bratton and for threatening
to sue the parole office. In order to prevail on this claim, the plaintiff must show that he would
not have been arrested for a parole violation if he had not complained to the Albany Parole
Department. He can do this by “present[ing] objective evidence that he was arrested when
otherwise similarly situated individuals not engaged in the same sort of protected speech had not
been.” Id. at 1717.
The plaintiff has not met this burden. He claims that Officer Bratton threatened him after
he complained to the Albany Parole Office. (ECF No. 57-1 at 77 (“She says you wrote them a
letter and now I’m under investigation. I’m going to get you. I’m going to get you.”). But the
plaintiff also alleges Officer Bratton threatened to incarcerate him for using prescription drugs

long before he complained about her; indeed, those threats caused him to complain to Albany.
See ECF No. 62 Ex. B (“I wrote this office twice regarding my parole officer’s continued
threats and harassment against me because I’ve been prescribed pain medication which contains
codeine, and her continued intimidation to go to a drug treatment program or jail . . . . ”)
The critical deficiency in the plaintiff’s argument is the absence of any showing that the
defendants treated him differently than similarly situated parolees. In other words, the plaintiff
has not shown, or even alleged, that the defendants would not have arrested similarly situated
parolees for the same violations: using heroin and other narcotics while on parole.
The plaintiff alleges that he was never arrested after testing positive for prescription pain
medication six to nine times during his thirteen years on parole (ECF No. 1 at 2; ECF No. 28 at

5), and once or twice after 2017. (ECF No. 57-1 at 71.) But he does not allege or establish that
similarly situated parolees would not be arrested for using heroin. There is no evidence that the
plaintiff tested positive for heroin while assigned to another parole officer, and nevertheless was
not arrested.5 See, e.g., Wheeler v. Artola, 852 F. App’x 589, 591 (2d Cir. 2021) (holding that
the district court did not err in finding an arrest was not retaliatory when plaintiff did not “did not
submit any evidence that other similarly situated persons had been treated differently” during a

5 Although he admitted to other instances of heroin use while on parole, he does not claim that he ever
tested positive for heroin at any other time while on parole. (ECF No. 64-1 ¶6.) The plaintiff admits
that he voluntarily sought treatment for heroin addiction in 2010 while on parole, not at the request of
his parole officer. (ECF No. 57-1 at 23-25.)
bench trial); Meyers v. City of New York, 812 F. App’x 11, 15 (2d Cir. 2020) (affirming dismissal
when the plaintiff did not allege that police refrained from arresting similarly situated people).
To be sure, this case differs from Nieves in a crucial way. No objective officer would
consider the plaintiff’s complaints to the Albany Parole Office against Officer Bratton in

determining whether an arrest was warranted for a parole violation. Nieves, 139 S. Ct. at 1723-
24 (“The causal inquiry is complex because protected speech is often a ‘wholly legitimate
consideration’ for officers when deciding whether to make an arrest.”)6 The plaintiff does not
demonstrate that his complaints rather than his drug use caused his arrest, and nothing in the
record demonstrates that violations like the plaintiff’s would not “nearly always trigger an arrest
regardless of speech”:
To show an arrest violated the First Amendment, everyone agrees a plaintiff must prove
the officer would not have arrested him but for his protected speech. And if the only
offense for which probable cause to arrest existed was a minor infraction of the sort that
wouldn’t normally trigger an arrest in the circumstances—or if the officer couldn’t
identify a crime for which probable cause existed until well after the arrest—then
causation might be a question for the jury. By contrast, if the officer had probable cause
at the time of the arrest to think the plaintiff committed a serious crime of the sort that
would nearly always trigger an arrest regardless of speech, then (absent extraordinary
circumstances) it’s hard to see how a reasonable jury might find that the plaintiff’s speech
caused the arrest. In cases like that, it would seem that officers often will be entitled to
dismissal on the pleadings or summary judgment.

Nieves at 1732 (Gorsuch, J. concurring). A reasonable officer in the defendants’ position could
consider that using heroin while on parole was serious enough to warrant an arrest. Accordingly,
his retaliation claim fails.

6 In Nieves, “[t]he officers testified that they perceived [the arrestee] to be a threat based on a combination
of the content and tone of this speech, his combative posture, and his apparent intoxication.” Nieves,
139 S. Ct. at 1724.
III. Due Process
“[T]he procedural component [of the due process clause] bars ‘the deprivation by state
action of a constitutionally protected interest in life, liberty, or property . . . without due process
of law.’” Walker v. Mattingly, No. 09-CV-845, 2012 WL 1160772, at *5 (W.D.N.Y. Apr. 5,

2012) (citing Zinermon v. Burch, 494 U.S. 113, 125, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990)).
“‘To award damages under 42 U.S.C. § 1983 for an alleged violation of procedural due process,
a court must find that, as the result of conduct performed under color of state law, the plaintiff
was deprived of life, liberty, or property without due process of law.’” Id. (quoting Bedoya v.
Coughlin, 91 F.3d 349, 351 (2d Cir. 1996)).
At the time of the plaintiff’s arrest, New York law required the State Division of Parole
to hold a preliminary probable cause hearing within 15 days of issuance of the parole warrant to
determine whether there was probable cause to believe that the plaintiff violated one or more of
his parole conditions “in an important respect.” N.Y. Exec. Law § 259–i(3)(c)(i). The alleged
violator may waive a preliminary hearing “either in writing on forms provided, or orally on the

record at any appearance in response to a notice of violation, the recognizance hearing or the
preliminary hearing.” N.Y. Comp. Codes R. & Regs. tit. 9, § 8005.6. A waiver is valid when it
is knowing, intelligent and voluntary. People ex rel. Edwards v. New York State Div. of Parole,
37 Misc. 3d 469, 472 (N.Y. Sup. Ct. 2012) (citing White v. New York State Div. of Parole, 60
N.Y.2d 920, 922 (1983)). The plaintiff claims that he did not validly waive his right to a
preliminary hearing, because Officer Bratton concealed the waiver portion of one of the
documents, that one of the signatures is not his, and that he signed the other document under
duress.
“[A] writing clearly and unambiguously documenting the parolee’s intention to relinquish
his right” to a preliminary hearing is sufficient prima facie evidence, at which point the parolee
must “demonstrate that the waiver was nonetheless defective” because it was not voluntarily and
intelligently made. People ex rel. Melendez v. Warden, Rikers Island Corr. Facility, 214 A.D.2d

301, 302 (1st Dep’t 1995). The defendants have provided two signed waiver documents: a
“Notice of Violation,” (ECF No. 55-7) and a “Probable Cause Hearing Waiver.” (ECF No. 55-
8.)
The plaintiff says that he did not sign the section of the “Notice of Violation” beneath the
checked box next to the sentence that reads “I do not wish to have a preliminary hearing.” The
plaintiff maintains that the signature is “different from the other two.” (ECF No. 57 at 109.)
While he acknowledges that he signed in two other places, (ECF No. 57-1 at 110-111), he says
that he did so under duress—that he “couldn’t refuse.” (ECF No. 57-1 at 111). He also says that
Officer Bratton rushed him, covered part of the page while she told him where to sign, and then
quickly took the papers away before the plaintiff could read them. (ECF No. 64-1 ¶¶32-34; see

also ECF No. 57-1 at 110 (the plaintiff “never got a chance to look at it because [] when she
showed it to me, she had her hand over it . . . . and told me to sign it, and pulled it back to her,
and that’s how she did all the paperwork with me.”)) Officer Bratton told the plaintiff that he
would not be released if he did not sign the paperwork but would be released in one or two
weeks if he signed.7 (ECF No. 57-1 at 112.)

7 The plaintiff had never been arrested for a parole violation or been to Rikers, so he was not aware of his
rights or the violation procedures. (ECF No. 1 at 4.) The defendants argue that the Court should “infer”
that the waiver was knowing, because the plaintiff became a paralegal in prison, and worked as a
paralegal for the New Mexico Department of Corrections. (ECF No. 64 at 8.) The defendants cite no
authority for this proposition, nor is the Court aware of any. Indeed, it is hard to see how working as a
paralegal in another state would have alerted the plaintiff to the intricacies of securing a parole violation
hearing in New York.
The plaintiff has adequately alleged that the signature beneath the box waiving his
hearing is different than the others. See Alvarado v. City of New York, 482 F. Supp. 2d 332, 339
(S.D.N.Y. 2007) (ambiguity existed as to nature of waiver where box indicating waiver above
plaintiff’s signature was circled rather than checked) and Melendez, 214 A.D.2d at 302 (“The

notice form proffered by respondent, with its contradictory entries and unexplained amendments
manifestly fails to establish the claimed relinquishment.”) The plaintiff has also adequately
alleged that he “was induced to sign the form by erroneous information and misleading advice.”
People ex rel. Wiggs v. Warden, 79 N.Y.S.3d 867, 872 (N.Y. Sup. Ct. 2018).
In Wiggs, the parolee signed the waiver form after his parole officer mistakenly informed
him that he would be incarcerated for no more than 90 days; in fact, Wiggs faced a minimum of
15 months incarceration. Id. at 872-73. Although Wiggs did not allege that the parole officer
was motivated by malice, the court determined that “[a] parole officer may have no duty to
answer questions about the hearing process, but if the choice is to do so, the answers must be
accurate.” Id. at 273. The plaintiff has not simply alleged that he “did not pay attention to the

document [he] was signing.” People ex rel. Adams v. Warden of Penitentiary of City of New
York, 801 N.Y.S.2d 779 (Sup. Ct. 2005). Rather, he claims Officer Bratton told him he would be
released in one to two weeks if he signed the paperwork. He was not released for another
seventy days, on July 31st. While Officer Bratton denies that she coerced the plaintiff, she
concedes that she “explained the process” to him, and that he “wanted to skip the preliminary
hearing and proceed straight to the final hearing because he believed it would allow him to be
released more quickly.” (ECF No. 55 ¶¶23, 26.).
The defendant does not provide any detail about the plaintiff’s hearing or why he was
incarcerated for so long. Nor does the defendant explain why Officer Bratton did not appear at
the plaintiff’s preliminary violation hearing on June 1, 2018, which could have prolonged the
plaintiff’s incarceration. The plaintiff was released without a final hearing after New Mexico
declined to extradite him, which the plaintiff also does not explain. Under these circumstances,
there is genuine dispute of material fact about what Officer Bratton said to the plaintiff about the

hearing process, whether he knowingly, intelligently and voluntarily waived her rights, and about
the process itself.8
The plaintiff has not adequately plead that Senior Officer Browne was personally
involved in the hearing waiver. Indeed, the plaintiff alleges that Officer Bratton was the only
officer present when he signed the waiver documents. (See ECF No. 57-1 at 113.) Accordingly,
all claims against Officer Brown are dismissed. See Grullon v. City of New Haven, 720 F.3d
133, 138-39 (2d Cir. 2013); Tangreti v. Bachmann, 983 F.3d 609, 613 (2d Cir. 2020) (A plaintiff
must prove “that each Government-official defendant, through the official’s own individual
actions, has violated the Constitution.”)

8 Officer Bratton does not claim that she is entitled to the defense of qualified immunity on the plaintiff’s
due process claims. Indeed, the plaintiff’s right to a probable cause hearing was “clearly established,”
so qualified immunity is unavailable. In addition, “[p]unitive damages are available to a plaintiff
bringing a Section 1983 claim who has shown that defendants acted with reckless or callous disregard
for plaintiff’s rights and intentionally violates federal law.’” Lozada v. Weilminster, 92 F. Supp. 3d 76,
108 (E.D.N.Y. 2015) (internal quotations omitted). The plaintiff has alleged that Officer Bratton
intentionally misled him and forced him to sign the waiver paperwork. “Generally, the issue of whether
defendants’ conduct is sufficiently serious to warrant punitive damages is a question best left to the
jury.” Id.
CONCLUSION
For the reasons discussed above, the defendants’ motion for summary judgment on the
plaintiff’s claims against Officer Brown and his claims for false arrest and retaliation is
GRANTED. The defendants’ motion for summary judgment on plaintiff’s due process claim

against Officer Bratton is DENIED. The plaintiff is directed to work with the pro se office to
file a motion to have pro bono counsel appointed for the remainder of this case.

SO ORDERED.
s/Ann M. Donnelly
_______________________________
ANN M. DONNELLY
United States District Judge
Dated: Brooklyn, New York
March 28, 2023

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10309461. Public record. Not legal advice.