Rodriguez v. The City Of New York

USBC SDNY

UNITED STATES DISTRICT COURT DOCUMENT

SOUTHERN DISTRICT OF NEW YORK i ELECTRONICALLY FILED

□□ DOC fy

| DATE FILO: Clea.

MODESTO RODRIGUEZ, LS fo □□

Plaintiff,

No. 21-CV-8565 (CM)

~against-

THE CITY OF NEW YORK, WARDEN STEVEN

BASTIAN, OFFICER MICHELLE GONZALEZ,

ANTOINETTE DOUGLAS, AND LACHONDA

LUCAS,

Defendants,

Xx

MEMORANDUM ORDER AND DECISION GRANTING IN PART AND DENYING IN

PART DEFENDANTS’ MOTIONS TO DISMISS AND FOR SUMMARY JUDGMENT

McMahon, J.

‘This is a civil rights action. It arises from Plaintiff Modesto Rodriguez’s (“Plaintiff’) arrest

and incarceration for the violation of a special condition of his parole: possessing a phone with an

operable camera, Plaintiff alleges that his parole officer, Defendant Michelle Gonzalez

(“Gonzalez”), imposed this special condition, approved his phone -- which had a working camera

— for use, and then charged him with a violation for possessing the device she previously approved.

Plaintiff was arrested and incarcerated in October 2019 for that parole violation. Plaintiff

filed a writ of habeas corpus, and on March 19, 2020, Justice Margaret L. Clancy of the Supreme

Court of New York, County of the Bronx, granted the writ, finding insufficient evidence to

establish probable cause for any violation.

After the writ was granted, Plaintiff remained incarcerated for nearly two more weeks. He

was ultimately released on March 31, 2020.

Plaintiff now asserts seven claims against various New York City and State defendants:

Count I for prosecution without probable cause under 42 U.S.C. § 1983 against Officer Gonzalez;

Count IT for violation of due process under 42 U.S.C. § 1983 against Officer Gonzalez; Count

IH for deliberate indifference to over-detention under 42 U.S.C. § 1983 against New York State

Department of Corrections and Community Supervision (“(DOCCS”) Officers Lachonda Lucas

and Antoinette Douglas (together with Gonzalez, the “State defendants”) and Department of

Corrections (“DOC”) Warden Steven Bastian; Count IV for false imprisonment (common law)

against the City of New York (the “City”); Count V for negligence (common law) against the

City; Count VI for violations of Article 1 §§ 1, 6, 8, 9, 11, and 12 of the New York State

Constitution against the City; and Count VII for violation of Plaintiff's rights under Monell v.

Department of Soc. Sves., 436 U.S. 658 (1978) against the City.

The State defendants move for summary judgment on Counts I, IIL, and TT on grounds of

absolute and qualified immunity, and otherwise move to dismiss the claims pursuant to Fed, R.

Civ. P. 12(b)(6) for failure to state a claim. The City moves to dismiss Counts II, 1V, V, VI, and

VII pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim.

For the following reasons, all motions are granted in part, denied in part.

FACTUAL BACKGROUND!

A. The Parties

Plaintiff Modesto Rodriguez is a resident of Bronx county who was under parole

supervision of DOCCS in 2019. (See AC {[2, 10, 18). Plaintiff's underlying conviction was a sex

' Unless specifically noted, all facts in this section are drawn from the Amended Complaint (“AC”), (Dkt, No. 10).

offense, but not one that involved the use of a cell phone or technology. (See Dkt. No. 42 (“Pls.

56.1”) at 11)

Defendant Michelle Gonzalez is a DOCCS parole officer and was Plaintiff's parole officer

in 2019. (AC 4{14, 18).

Defendants Lachonda Lucas and Antoinette Douglas are employees of DOCCS who

interacted with Plaintiffs counsel following the grant of Plaintiff's writ of habeas corpus in 2020.

(id. §915, 16, 35-37).

Defendant the City of New York is a municipal entity that, through the DOC, maintains

correctional facilities on Rikers Island where Plaintiff was incarcerated for a parole violation in

2019 and remained incarcerated until March 31, 2020. Ud. 11-12, 17, 30).

Defendant Warden Steven Bastian is an official at Rikers Island, employed by the DOC.

(id. 13). It is undisputed that Warden Bastian retired from the DOC in February 2020. (See Dkt.

No. 22 (“MTD Br.”), at 5 n. 1 and Dkt. No. 27 (“MTD Opp.”), at 1 n.1).

B. The Special Parole Condition and Violation

On October 22, 2019, while Plaintiff was under DOCCS parole supervision, Defendant

Gonzalez imposed a special condition of parole prohibiting Plaintiff from having a cell phone with

an operable camera. (AC 918). That same day, Defendant Gonzalez also allegedly checked the

phone that Plaintiff owned and told him that he could use the phone, as it complied with the special

condition. (Ud. 20).

Nine days later, on October 31, 2019, Defendant Gonzalez charged Plaintiff with a parole

violation for possessing and using the same cell phone she had approved. On or about that date,

Plaintiff was arrested and incarcerated at Rikers Island. (7d. §21). Plaintiff alleges that the only

2 This fact is not in the AC but is asserted in Plaintiffs Rule 56.1 statement in opposition to the State Defendants’

motion for summary judgment and is undisputed. It is included and considered for purpose of resolving that motion.

reason he was incarcerated was because Defendant Gonzalez imposed the allegedly

unconstitutional special condition on him and then tricked him into violating the special condition

by approving his phone for use. (fd. 923).

On November 13, 2019, a preliminary hearing was held on the charged parole violation.

(id. (22). The hearing officer found there was probable cause to initiate the parole revocation

proceedings. (/d.).

C. Plaintiffs Petition for a Writ of Habeas Corpus

In January 2020, Plaintiff filed a petition for writ of habeas corpus in the Supreme Court

of New York, Bronx County. He argued that (1) the special condition was arbitrary and infringed

on his constitutional rights and (2) there was insufficient evidence to support the probable cause

determination at his preliminary hearing. (AC 425; see Dkt. No. 36-1, at 11-15, 19). DOCCS and

the warden of the Eric M. Taylor Center, a facility on Rikers Island, were named as respondents.

(See AC 925; Dkt. No. 36-1, at 7).

On March 19, 2020, Justice Clancy issued a decision granting the writ of habeas corpus

(the “habeas decision”)? Justice Clancy first recognized that, “At this stage of the parole

revocation proceedings, the court’s power is limited to determining whether the required

procedural rules were followed and whether there is sufficient evidence in the record which, if

believed, would support the hearing officer’s probable cause determination. (Dkt. No. 36-1, at 20).

She then found the evidence insufficient to support a finding of probable cause. (/d. at 21).

Specifically, Justice Clancy found the following: (1) it was “undisputed that two separate parole

officers approved of petitioner’s possession of that particular cell phone;” (2) it was “undisputed

3 The Court may take notice of and consider the habeas petition and decision, as it is integral to Plaintiffs AC, which

references and relies on the petition and decision and quotes large portions of it, (See e.g, AC (26-28). In considering

a motion to dismiss, the court “may consider any ... documents upon which the complaint relies and which are integral

to the complaint.” Subaru Distributors Corp. v. Subaru of America, inc., 425 F.3d 119, 122 (2d Cir. 2005).

that the cell phone was capable of taking pictures . . . because it had a camera;” and (3) “there were

no pictures on the phone taken after the special conditions were imposed.” (/d. at 22). She

concluded, “it can hardly be a violation of a parole condition for petitioner to possess the very

same photo-capable cell phone that he received permission to possess by his parole officer when

the special condition was imposed.” Ud.).

While Justice Clancy did “not reach petitioner’s constitutional argument concerning the

validity of the special condition at issue,” she, “Nevertheless . . . [wa]s compelled to make [certain]

observations” concerning that special condition. (id; see AC $27). Herewith her “observations”:

{{|t is difficult to fathom how a blanket restriction on the possession of a cell

phone with a camera is rationally related to petitioner’s past conduct or any

potential for recidivism. The Court is also at a loss to understand how any parolee

would be able to comply with this special condition. Many people rely exclusively

on a cell phone because they cannot afford both a cell phone and a traditional

land-line telephone. A parolee is required to maintain constant contact with a

parole officer and to notify parole of any change in circumstances concerning his

or her release, employment, residence, etc. Given the nature of today’s smart

phones, however, it is impossible to find a cell phone that does not also have a

camera. The same holds true for the flip phones and slide phones that have all but

disappeared over the last ten years. Apparently, petitioner was given permission

to possess one cell phone that no longer exists.

(Dkt. No. 36-1, at 23; AC 927). However, as she did not need to decide the constitutional issue in

order to issue the writ, she made no final finding on the constitutionality of the condition, one way

or the other.

Having granted the petition for a writ of habeas corpus, Justice Clancy vacated the parole

warrant and ordered that Plaintiff be released and restored to parole supervision, unless some other

valid reason existed to hold Plaintiff in custody. None did. (AC 928).

D. Plaintiff Ils Not Released From Custody Until March 31, 2020

Plaintiff alleges that the writ was promptly distributed to DOC and DOCCS officials after

it was granted on March 19, 2020 (AC and that Plaintiff's counsel “notified both the DOC

and DOCCS multiple times starting on March 19, 202[0],* about the need to release Plaintiff

immediately, But nothing was done.” Ud. 38).

Plaintiff asserts that he was not timely released because of an unconstitutional City policy,

Specifically, he alleges that it was the official policy of the City “to effectively ignore writs of

habeas corpus until DOCCS lifts the parole hold, even if there is no justification for the detention.”

32). In support of this allegation, Plaintiff quotes DOC Captain Anthony Monastero, head of

the Custody Management Unit, who explained in sworn testimony in a separate case, Uviles v.

City of New York, No. 19-cv-3911, in the Eastern District of New York:

Q: ... [Is DOC’s policy that the warrant remains in effect until the parole hearing

determines whether to lift the warrant or not?

A. Well, the correct answer would be that the parole warrant stays in effect until

we receive a parole warrant lift. The parolee can leave the hearing, the final hearing

or preliminary hearing, and the judgment can be that the parole warrant is no longer

active. But at DOC, we can’t act on that until we get a parole warrant lift from the

New York State DOCCS Division of Parole. Regardless of what happens in the

hearing.

(AC 432).

Plaintiff further alleges that DOCCS employees Defendants Lucas and Douglas knew

about this unconstitutional policy and had the ability to lift the parole hold but “deliberately

delayed [lifting the hold], inevitably causing Plaintiff Rodriguez to remain in custody.” Ud 934;

see id. 936-37). Specifically, on March 22, 2020, Defendant Lucas was allegedly informed about

the delay in releasing Plaintiff, at which time “she knew the system they use for tracking parole

warrants is inaccurate, writing [to Plaintiff] that ‘DOCS look up often lists the warrants as being

4 Plaintiff's complaint states that counsel notified DOC and DOCCS on March 19, 2027 and notified Defendant Lucas

specifically on March 22, 2021, The Court (and defendants) assume that the year “2021” is a clerical error and that

plaintiff's counsel meant to say “2020,” as it is undisputed that all the relevant events in this section of the complaint

occurred in 2020 and that Plaintiff was released on March 31, 2020. (See Dkt. No. 35 (“State Br.”), at 2 n. 2).

active but they are usually not.’ (sic).” (id 35). Defendant Lucas told Plaintiff's counsel that

“DDOI [Declared Delinquent Other Institution] staff will check the status in a more reliable

system” but Plaintiff alleges that she “never actually had DDOI staff check the status” of Plaintiff's

parole warrant and “did not direct DDO! take any other steps to ensure Plaintiff Rodriguez’s

release from custody.” (/d. 36). Similarly, Defendant Douglas allegedly was notified of the court

order but likewise “did nothing to secure Plaintiff Rodriguez’s release by lifting the parole hold.”

(id. $37).

Plaintiff was not released until March 31, 2020.

It bears noting that March 2020 was the month in which COVID-19 shut down the world.

Jail — never a good place to be — was very much a place to be avoided at the outbreak of the

COVID-19 epidemic.

E. Plaintiff Files Suit

Plaintiff filed this lawsuit on June 29, 2021 in the Supreme Court of the State of New York,

Bronx County. (See Dkt, No. 1). Defendants timely removed this action to this Court.

After the State Defendants moved to dismiss on December 17, 2021 (Dkt. No. 7), Plaintiff

filed an amended complaint. (See Dkt. No. 10).

On February 17, 2022, the City moved to dismiss the AC (Dkt. No. 21), and the State

defendants filed a Notice of Motion for summary judgment on immunity grounds as well as a

motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). (Dkt. No. 23). Thereafter, Plaintiff was

deposed pursuant to the Court’s Individual Rule V(E)(4), and on May 4, 2022, the State defendants

renewed their motion to dismiss and motion for summary judgment. (Dkt. No. 34).

STANDARD

A. Motion to Dismiss Pursuant to Rule 12(b)(6)

In order to “survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Igbal, 556 U.S.

662, 678 (2009) (quoting Bell Atl, Corp. v. Twombly, 550 U.S. 544, 570 (2007)). To achieve “facial

plausibility,” a claim must contain “factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” /d. (citing Twombly, 550 U.S, at

556). To survive a motion to dismiss, the plaintiff must allege facts that “nudge[] [plaintiff's]

claims across the line from conceivable to plausible.” Twombly, 550 U.S. at 570. Further,

“determining whether a complaint states a plausible claim for relief will .. . be a context-spectfic

task that requires the reviewing court to draw on its judicial experience and common sense.” /gbal,

556 U.S. at 679 (internal citations omitted).

“In determining the adequacy of a claim under Rule 12(b)(6), consideration is limited to

facts stated on the face of the complaint, in documents appended to the complaint or incorporated

into the complaint by reference, and to matters of which judicial notice may be taken.” Allen vy.

WestPoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991). The court may consider the full text of

documents that are cited in, incorporated by reference in, or “integral” to the complaint. San

Leandro Emergency Med. Grp. Profit Sharing Plan v. Philip Morris Companies, Inc., 75 ¥.3d 801,

809 (2d Cir. 1996).

B. Summary Judgment

Summary judgment must be granted when there is “no genuine dispute as to any material

fact and the movant|s] [are] entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); accord

Anderson y. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A genuine dispute of material fact

exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving

party.” Anderson, 477 U.S, at 248. At summary judgment, the movants bear the initial burden of

demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986); Feingold v. New York, 366 F.3d 138, 148 (2d Cir. 2004).

Once the movants meet that burden, the non-movants may defeat summary judgment only

by producing evidence of specific facts that raise a genuine issue for trial. See Fed. R. Civ. P. 56(c);

Anderson, 477 U.S. at 248; Davis v. New York, 316 F.3d 93, 100 (2d Cir. 2002). To survive

summary judgment, the non-movants must present concrete evidence and rely on more than

conclusory or speculative claims. Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438,

445 (2d Cir. 1980). In assessing the record to determine whether genuine issues of material fact

are in dispute, a court must resolve all ambiguities and draw all reasonable factual inferences in

favor of the non-moving party. See Parkinson v. Cozzolino, 238 F.3d 145, 150 Qd Cir. 2001),

DISCUSSION

I. The State Defendants’ Motion to Dismiss Counts I, Il, and III For Failure to State a

Claim is Denied; the State Defendants’ Motion for Summary Judgment on Counts I, IT,

and LI on Absolute and Qualified Immunity Grounds is Denied in Part, Granted in Part.

The State defendants Officers Gonzalez, Lucas and Douglas move to dismiss Counts I, I,

and III for failure to state a claim and also move for summary judgment on these same counts on

absolute and qualified immunity grounds. The motion to dismiss is denied; the motion for

summary judgment is granted in part, denied in part. The Court will first discuss whether the AC

states a claim, and then will turn to whether any of the State defendants is entitled to either absolute

or qualified immunity that would preclude moving forward against her on that claim.

A. The Motion to Dismiss Count I (Malicious Prosecution) and the Motion for Summary

Judgment on Count I Are Both Denied

i. Plaintiff States a Claim for Malicious Prosecution

Plaintiff asserts a claim against Defendant Gonzalez pursuant to 42 U.S.C. § 1983 for

prosecution without probable cause, in violation of his Fourth Amendment right “to be free from

unreasonable or unlawful searches and seizures.” (See AC 443, 45).

“The Supreme] Court’s precedents recognize” “a Fourth Amendment claim under § 1983

for malicious prosecution, sometimes referred to as a claim for unreasonable seizure pursuant to

legal process.” Thompson v. Clark, 596 U.S. ___, 142 S.Ct. 1332, 1337 (2022). “To state a §

1983 malicious prosecution claim a plaintiff ‘must show a violation of his rights under the Fourth

Amendment and must establish the elements of a malicious prosecution claim under state law.’”

Cornelio v. Connecticut, 32 F.4th 160, 179 (2d Cir. 2022) (quoting Manganiello v. City of New

York, 612 F.3d 149, 160-61 (2d Cir. 2010)). Under New York law, the elements of a malicious

prosecution tort are that “‘(1) the defendant initiated a prosecution against plaintiff, (2) without

probable cause to believe the proceeding can succeed, (3) the proceeding was begun with malice[, |

and[ ] (4) the matter terminated in plaintiff's favor.” Rentas v. Ruffin, 816 F.3d 214, 220 (2d Cir.

2016) (quoting Cameron v. City of New York, 598 F.3d 50, 63 (2d Cir.2010)).

As to the constitutional violation, Plaintiff has sufficiently pleaded a violation of his Fourth

Amendment right to be free from unreasonable or unlawful seizure. To satisfy this element, a

plaintiff must assert “a sufficient post-arraignment liberty restraint to implicate the plaintiff's

Fourth Amendment rights.” Rohman v. New York City Transit Authority (NYCTA), 215 F.3d 208,

215 (2d Cir. 2000) (citing Murphy v. Lynn, 118 F.3d 938, 944-46 (2d Cir.1997)). As the Second

Circuit has explained: ““A plaintiff asserting a Fourth Amendment malicious prosecution claim

under § 1983 must... show some deprivation of liberty consistent with the concept of “seizure.”’”

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Id, (quoting Singer vy, Fulton County Sheriff, 63 F.3d 110, 116 (2d Cir.1995)).

In this case, Plaintiff has done so. He asserts that he was wrongfully arrested and

incarcerated at Riker’s Island after Defendant Gonzalez “manufactur[ed] a parole violation” by

first approving Plaintiff's phone, then charging Plaintiff with a violation for possessing that very

phone. (See AC 942-46). Plaintiff alleges that as of the date of his parole revocation hearing, “the

only reason Plaintiff Rodriguez was incarcerated was because Defendant Gonzalez ... tricked

Plaintiff Rodriguez into violating [the special condition] by telling him he could have his phone.”

Ud. (23, 943). Plaintiff has sufficiently pleaded a deprivation of his liberty in violation of his

Fourth Amendment right.

As to the first element of a malicious prosecution claim under state law, the parties

“assum|[e}” for the purposes of their briefing that “the malicious prosecution tort is applicable to

administrative parole revocation proceedings.” (See State Br., at 12). The Court does not simply

make that assumption; it confirms that the tort is applicable. “Although a ‘judicial proceeding is

the Sine qua non of a cause of action in malicious prosecution’ ...‘[a] claim for malicious

prosecution may also lie when an administrative proceeding is commenced which contains

sufficient attributes of a judicial proceeding.’” See Karlyg v. Merino, No. 20-CV-991, 2021 WL

4222450, at *4, n. 4 (E.D.N.Y. Sept. 15, 2021) (quotations omitted, alterations in original); see

Storman v. Klein, 395 Fed. Appx. 790, 793 (2d Cir. 2010) (summary order). Such attributes include

hearing and trial of the issues on evidence and testimony under oath, with the right of cross-

examination.’” Klein, 395 Fed. Appx. at 793 (quoting Groat v. Town Ba. of Town of Glenville, 426

N.Y.S.2d 339, 341 (N.Y. App. Div. 1980)). In this state, courts have found that parole revocation

hearings contain such “‘sufficient attributes of a judicial proceeding to support a cause of action

for malicious prosecution.’” Karlyg, 2021 WL 4222450, at *4, n. 4 (quoting Nazario v. State, 884

li

N.Y.S.2d 580, 590 (N.Y. Ct. CL. 2009), aff'd, 905 N.Y.S.2d 328 (N.Y. App. Div. 2010) and citing

cases). And here, Plaintiffs preliminary hearing contains such attributes, including testimony

under oath and cross-examination. (See Dkt. No. 36-4). Accordingly, the malicious prosecution

tort is applicable to Plaintiff's parole revocation proceeding. Plaintiff has alleged that such a

prosecution was initiated against him. Plaintiff thus sufficiently pleads the first element.

Second, Plaintiff has alleged there was no probable cause for the proceeding. “[T]he

pravamen of the Fourth Amendment claim for malicious prosecution, as [the Supreme] Court has

recognized it, is the wrongful initiation of charges without probable cause...” Thompson, 142 □

S.Ct, at 1337; see Manuel v. Joliet, 580 U.S. 357, 363-364 (2017); Albright v. Oliver, 510 U.S.

266, 274-75 (1994). “[P}robable cause must be determined with reference to the facts of each case”

and “must be determined by reference to the totality of the circumstances.” Manganiello, 612 F.3d

at 161-62. “Probable cause may . . . exist where the officer has relied on mistaken information, so

long as it was reasonable for him to rely on it.” /d. at 161. “However, ‘the failure to make a further

inquiry when a reasonable person would have done so may be evidence of lack of probable cause.””

Id, (quoting Colon v. City of New York, 60 N.Y.2d 78, 82 (1983)). Probable cause is not supported

where a prosecutor knowingly uses “‘false evidence to obtain a tainted conviction’” or an officer

“*fabricat[es] and forward[s] . . . known false evidence.’” Jd. at 162 (quoting Ricciuti v. NVC.

Transit Authority, 124 F.3d 123, 130 (2d Cir.1997)).

Here, Defendant Gonzalez contests she had probable cause because Plaintiff was in

possession of a phone that violated the special condition. Yet, as discussed further below (see infra

§].A.iii), Plaintiff alleges that Defendant Gonzalez “manufactur[ed]” the parole violation itself (see

AC 443) when she inspected Plaintiff's phone and approved it for use. Plaintiff alleges she “set a

trap for Plaintiff” (id. at $20) and absent this “trap,” there was no probable cause for the violation

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and proceeding. Justice Clancy of the New York State Supreme Court specifically found in the

habeas proceedings that Gonzalez lacked probable cause to violate Plaintiff on the stated ground,

explaining, “it can hardly be a violation of a parole condition for petitioner to possess the very

same photo-capable cell phone that he received permission to possess by his parole officer when

the special condition was imposed.” (Dkt. No. 36-1, at 22). Plaintiff has sufficiently pleaded that

Defendant Gonzalez did not have probable cause to initiate the parole revocation proceeding.

Plaintiff has also sufficiently alleged malice. “A lack of probable cause generally creates

an inference of malice.” Boyd v. City of New York, 336 F.3d 72, 78 (2d Cir.2003); see Rentas, 816

F.3d at 221-22 (“Actual malice can be inferred when a plaintiff is prosecuted without probable

cause.”). As the Second Circuit has explained, if “‘a jury could find that probable cause for the

charges against the plaintiffs was lacking .. . that finding alone would support an inference of

malice.” Ricciuti v. New York City Transit Auth., 124 F.3d 123, 131 Qd Cir. 1997). Plaintiff has

sufficiently alleged a lack of probable cause — specifically that the entire violation was a setup and

that Justice Clancy’s habeas decision intimates as much. The Court can properly infer malice from

these allegations at the pleading stage.

Finally, Defendant Gonzalez does not dispute that the proceedings terminated favorably

for Plaintiff. (See State Br., at 20). Plaintiff alleges that Justice Clancy determined there was

insufficient evidence to establish probable cause for the parole violation that resulted in Plaintiff's

atrest and incarceration at Rikers Island, vacated the parole warrant, and ordered that Plaintiff be

released and restored to parole supervision. (See AC 428). Plaintiff sufficiently pleads this element.

ii. Defendant Gonzalez is Not Entitled to Absolute Immunity on Count |

Defendant Gonzalez argues that she is entitled to absolute immunity on Plaintiff's claim

for malicious prosecution (Count I) because she was also “the administrative prosecutor at

13

Plaintiff's preliminary hearing” who “appeared representing DOCCS to present the case . . . chose

the charge on which to proceed, . . . called and questioned a witness, and chose not to make a

summation.” (State Br., at 13).

Plaintiff does not dispute that Defendant Gonzalez is entitled to absolute immunity for the

actions she took in a prosecutorial role at the preliminary hearing. (See SJ Opp., at 4). Under

Second Circuit law, parole officers who “initiat[e] parole revocation proceedings and . . . present[}

the case for revocation to hearing officers” are to “receive absolute immunity for their actions...

because such acts are prosecutorial in nature.” Scotto v. Almenas, 143 F.3d 105, 112 (2d Cir. 1998);

see also Cornejo y, Bell, 592 F.3d 121, 127 (2d Cir. 2010).

Plaintiff counters, however, Defendant Gonzalez “is nonetheless liable” for the acts she

took prior to initiating the prosecution, specifically her actions related to “fabricating the grounds

for the arrest and prosecution.” (SJ Opp., at 4). Defendant Gonzalez “cannot immunize herself

from liability for these acts by later initiating the prosecution itself.” /d.).

Plaintiff is correct.

“A government official cannot immunize for Section 1983 purposes all unlawful conduct

performed prior to and independent of a later immunized act, merely by subsequently engaging in

conduct entitled absolute immunity.” Victory v. Pataki, 814 F.3d 47, 66-67 (2d Cir, 2016), as

amended (Feb. 24, 2016). For example, while the Second Circuit has held that acts of parole

officers that “are prosecutorial in nature” entitle those officers to absolute immunity, it has also

held that acts by those officers that are not prosecutorial in nature are not protected by absolute

immunity. See Scotto, 143 F.3d at 112-113. Non-immunized acts include “preparing [a] parole

violation report and . . . recommending that an arrest warrant issue.” /d. at 112; see also Dettelis

v. Sharbaugh, 919 F.3d 161, 164 (2d Cir. 2019) (“[I]n performing investigatory duties, for

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example, the filing of a violation report or recommending the issuance of an arrest warrant, a parole

officer is entitled only to qualified immunity.”) (citing cases). In so finding, the Second Circuit has

specifically “decline[d] to extend absolute immunity more than is strictly necessary to safeguard

the independent exercise of the prosecutorial function.” Scotto, 143 F.3d at 113.

Here, Defendant Gonzalez is not entitled to absolute immunity for actions that were not

prosecutorial in nature. (See AC §943, 45). These actions include the following: Defendant

Gonzalez allegedly “checked the phone Plaintiff Rodriguez owned and affirmatively told him that

this specific phone was approved and he could use it,” and then “violated Plaintiff Rodriguez for

having the cell phone that she knew about, had checked, and previously approved.” (/d. §[20-21).

Plaintiff claims that Defendant Gonzalez essentially manufactured the probable cause that became

the basis for the parole revocation proceedings and his arrest and incarceration. There is nothing

“prosecutorial” about any of that.

Defendant Gonzalez is not entitled to absolute immunity that would shield her from

prosecution on Count I.

iii. Genuine Issues of Fact Remain as to Whether Defendant Gonzalez is Entitled to

Qualified Immunity on Count I

In the alternative, Defendant Gonzalez argues that she is entitled to qualified immunity on

Count I for the actions she is alleged to have taken prior to the preliminary hearing.

“The defense of qualified immunity ‘protects government officials from suit if their

conduct does not violate clearly established statutory or constitutional rights of which a reasonable

person would have known.’” Yunus v. Robinson, No. 17-CV-5839, 2019 WL 168544, at *3

(S.D.N.Y. Jan. 11, 2019) (quoting Gonzalez v. City of Schenectady, 728 F.3d 149, 154 (2d Cir.

2013)). “The qualified immunity analysis asks whether (1) a plaintiff has sufficiently pled the

violation of a constitutional or statutory right, (2) whether that right was ‘clearly established,’ and

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(3) whether it was ‘objectively reasonable’ for the official to believe their conduct was lawful.” Je.

(quoting Gonzalez, 728 F.3d at 154-55). If an officer’s conduct does not violate a “clearly

established statutory or constitutional right of which a reasonable person would have known” and

it was “objectively reasonable” for the officer to believe that her actions were lawful at the time,

the officer is entitled to qualified immunity. Jenkins v. City of New York, 478 F.3d 76, 87 (2d Cir.

2007) (quoting Cerrone v. Brown, 246 F.3d 194, 199 (2d Cir. 2001)).

As explained above, Plaintiff has sufficiently pleaded that he was prosecuted without

probable cause in violation of his Fourth Amendment right. (See AC (43, 45). “The right not to

be arrested or prosecuted without probable cause has, of course, long been a clearly established

constitutional right.” Golino v. City of New Haven, 950 F.2d 864, 870 (2d Cir. 1991). Having pled

violation of a clearly established constitutional right, Plaintiffs malicious prosecution claim

“therefore turn[s] on whether the defendant officer[’s] probable cause determination was

objectively reasonable .. .” Betts v. Shearman, 751 F.3d 78, 84 (2d Cir, 2014).

Plaintiff argues that as a matter of law it was “objectively unreasonable” for Defendant

Gonzalez to believe she had probable cause to arrest where she “fabricated” the parole violation

by approving his phone and then charged Plaintiff with a violation for having the phone she

approved. (SJ Opp., at 5-6), Plaintiff relies on the Second Circuit’s decision in Scotto v. Almenas,

143 F.3d 105 (2d Cir. 1998). In that case, the Court of Appeals held that a parole officer could not

“establish his entitlement to qualified immunity as a matter of law” where the plaintiff alleged that

the officer “fabricated a parole violation and arrested him knowing he lacked probable cause to do

so.” Id. at 113. The Second Circuit explained, “Such conduct, if proved, would plainly violate [the

plaintiff’s] clearly established right to be free from arrest in the absence of probable cause.” Id.

“Moreover, it would be objectively unreasonable for [the officer] to believe he had probable cause

16

to arrest [plaintiff] if [officer] himself fabricated the grounds for arrest.” Jd.

In Scotto, the plaintiff was prohibited, as a special condition of parole, from “participating

in any business without the approval of his parole officer.” /d The plaintiff alleged that he sought

his parole officer’s approval to participate in a redevelopment project for a restaurant and that the

parole officer was “supportive” of the initiative. /d at 108. With that encouragement, the plaintiff

entered into a “Consultant Agreement” with the restaurant owner for the operation of a restaurant.

Id. The owner, in turn, allegedly approached plaintiff's parole officer to enlist his help in

preventing plaintiff from pursuing a civil suit against the owner when the plaintiff's relationship

with the restaurant owner soured. fd. at 108-109. The parole officer charged the plaintiff with

various parole violations, including that the plaintiff entered into the business contract without

notifying the parole officer. Jd. at 109. The plaintiff was arrested. /d. Five days later, the plaintiff

obtained a writ of habeas corpus from a state court judge and was released. The plaintiff thereafter

sued for malicious prosecution, among other claims. On appeal, the Second Circuit determined

that on the facts alleged, “further factual development, either at trial or at the summary judgment

stage, will be necessary to determine whether qualified immunity is available to [the parole

officer].” Jd. at 113.

Since Scoffo, district courts have evaluated different circumstances in determining whether

an officer was entitled to qualified immunity as a matter of law on a §1983 claim for malicious

prosecution. For example, in Richardson v. City of New York, No. 11 Civ. 02320, 2013 WL

6476818 (S.D.N.Y. Dec. 10, 2013), Judge Schofield declined to dismiss a claim for malicious

prosecution against a police captain, finding the captain was not entitled to qualified immunity as

a matter of law where there were “disputed issues of fact exist as to whether [the captain’s] conduct

violated clearly established statutory or constitutional rights” and where plaintiff “raised triable

17

questions of fact as to whether there was probable cause to arrest and charge him.” /d. at *9.

In Judge Schofield’s case, the plaintiff was under parole supervision when he was involved

in an altercation with a few police officers, including the captain. /d. at *1-2. In that altercation,

the plaintiff was allegedly assaulted, tackled, and beaten by the officers. /d. The plaintiff was

arrested and charged in criminal court with assault on the captain, who was also the arresting

officer. /d. at *3. The plaintiff plead not guilty and posted bail. After the plaintiff was released, the

plaintiff's parole officer interviewed the captain and, based on that interview, charged the plaintiff

with a parole violation of “‘punch[ing] the arresting officer . . . in the face’”; the plaintiff was

remanded to Rikers Island. /d.

The plaintiff requested a probable cause hearing. At that hearing, the hearing officer found

the captain’s testimony “incredulous” [sic] and found no probable cause for the charge of

assaulting a police officer. fd. The hearing officer lifted the warrant.

After being released, the plaintiff sued for, inter alia, malicious prosecution. In declining

to dismiss the claim for malicious prosecution, Judge Schofield found there were “disputed issues

of fact exist as to whether [the captain’s] conduct violated clearly established statutory or

constitutional rights” and where plaintiff “raised triable questions of fact as to whether there was

probable cause to arrest and charge him.” Jd. at *9. Judge Schofield noted in particular that “a

reasonable jury could find that [the captain] lacked probable cause on the basis of the assault charge

to seek Plaintiff's parole revocation or to prosecute him in criminal court...” Jd.

Likewise, here, Plaintiff has “raised triable questions of fact as to whether there was

probable cause to arrest and charge him.” See id.

Defendant Gonzalez argues that it was objectively reasonable for Defendant Gonzalez to

believe she had probable cause because Plaintiff did not have permission to have a cell phone with

18

a camera, and Plaintiff was found with a phone with an operable camera. (State Br., at 15). She

argues that this alone “gave a reasonable basis for her to think Plaintiff was in violation” of the

special condition. (/d.). She adds that her determination is reinforced by the fact that the hearing

officer agreed there was probable cause (/d.; see AC 23).

However, Defendant Gonzalez cites no case establishing that the hearing officer’s approval

of Defendant Gonzalez’s probable cause determination in and of itself establishes that Defendant

Gonzalez’s probable cause determination was objectively reasonable as a matter of law. And the

law is clear that “it would be objectively unreasonable for [a parole officer] to believe he had

probable cause .. . if [he] fabricated the grounds for arrest.” Scotto, 143 F.3d at 113. Moreover, a

New York State Supreme Court Justice concluded that Officer Gonzalez did not have probable

cause, citing to facts which suggest that Officer Gonzalez could not possibly have thought

otherwise. Justice Clancy found that both Gonzalez and a second parole officer, Officer Castillo,

approved Plaintiffs use of the very phone whose possession underlay the violation. (See Dkt. No.

36-1, at 22). At the very least this raises a genuine issue of fact on the question of objective

reasonableness; in the opinion of this court, it might come close to resolving that issue in Plaintiff's

favor.

In support of his claim, Plaintiff presents his own sworn deposition testimony testifying as

to the alleged setup, as well as the testimony of Defendant Gonzalez at the underlying preliminary

hearing, where she testified that she checked Plaintiff's phone after imposing that special

condition. (See Pls. 56.1, at [¥4, 12). Plaintiff also presents the findings of the court in the habeas

decision (id.), where Justice Clancy noted that: (1) it was “undisputed that two separate parole

officers approved of petitioner’s possession of that particular cell phone”; (2) it was “undisputed

5 Plaintiff does not cross-move for summary judgment in his favor on this issue, however, so 1 won’t go there.

19

that the cell phone was capable of taking pictures . . . because it had a camera”; and (3) “there were

no pictures on the phone taken after the special conditions were imposed.” (See Dkt. No. 36-1, at

22). The Court finds that Plaintiff has proffered sufficient evidence to raise a genuine issue of

material fact on objective reasonableness, thereby defeating Defendant Gonzalez’s motion for

qualified immunity.

B. The Motion to Dismiss Count II (Due Process) is Denied; the Motion for Summary

Judgment on Count I Is Granted

i. Plaintiff States a Claim for Violation of His Due Process Rights

Plaintiff alleges that Defendant Gonzalez violated his Fourteenth Amendment right to due

process by imposing the special condition on him, approving his phone despite the imposition of

the special condition, and then charging him with a violation “without warning.” (AC 448).

Plaintiff alleges that Defendant Gonzalez’s imposition of the special condition was

unconstitutional because the condition “had no rational relation to Plaintiffs past or potential

future conduct, and was functionally impossible to follow” (id. 49); however, his second cause

of action is grounded not in the unconstitutionality of the condition itself® but in the alleged due

process violations — both of imposing the condition and then of charging him with violating the

condition without regard to his due process rights. This is reflected in the way the claim is phrased

and in the caption of the claim, which states: “Due Process Violation Under 42 U.S.C. §1983

Against Officer Gonzalez.” (See AC, at p. 8).

Defendant Gonzalez challenges that because Plaintiff “does not distinguish whether his

claim regarding the camera condition is under procedural or substantive due process .. . Plaintiff

fails to state a cause of action on that basis alone.” (State Br., at 22). Defendant Gonzalez further

® This, the reader will recall, is the issue that Justice Clancy did not reach — though she intimated that the

constitutionality of the condition was questionable.

20

argues that Plaintiff fails to plead either a substantive or procedural due process claim in any event

because he fails to identify any liberty interest that was violated or how the imposition of the

camera condition was a “gross abuse” of authority. Ud).

In his brief in opposition to the motion for summary judgment, Plaintiff argues that

Defendant Gonzalez’s imposition of the special condition “likely violates both procedural and

substantive due process” and urges that he can he can sustain a due process claim against

Defendant Gonzalez on the grounds that the imposition of the condition violated “multiple liberty

interests” guaranteed by the 14th Amendment. (SJ Opp., at 16). He maintains that the imposition

of the special condition was arbitrary and capricious in violation of the due process clause. (/d. at

7).

The Court finds that Plaintiff has failed to state a procedural due process claim but states a

claim for violation of his substantive due process rights.

i. Procedural 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 Zinernon v. Burch, 494 U.S. 113, 125 (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.’” Jd. (quoting Bedoya v. Coughlin, 91 F.3d 349, 351 (2d Cir,1996)).

There is no dispute in this case that Defendant Gonzalez acted under color of state law.

7 Plaintiff also asks that in the event that the Court finds the claim unclear that he be granted leave to replead, There

is little question that the claim is “unclear” but the application for leave to replead is denied, for reasons that will

become clear to the reader,

21

What remains to be assessed to determine “the viability of [plaintiff's] procedural due process

claim” is “(1) whether [plaintiff] possessed a liberty or property interest and, if so, (2) what process

[plaintiff] was due before he could be deprived of that interest.” Abascal v. Bellamy, No. 10-cv-

1406, 2011 WL 2436931, at *3 (S.D.N.Y. Jun. 8, 2011) (citing Ciambriello v. Cnty. of Nassau,

292 F.3d 307, 313 (2d Cir. 2002)).

Plaintiff has not identified a protected property interest; instead, he argues that the

imposition of the condition violated “multiple liberty interests” (none of which is specified). (SJ

Opp., at 16).

Insofar as the liberty interest of parolees are concerned, these rights “have not been well-

defined.” Singleton y. Doe, 210 F. Supp. 3d 359, 372 (E.D.N.Y. 2016). Of course, “‘[p]arolees are

_.. not without constitutional rights.’” Jd (quoting United States ex rel Sperling v. Fitzpatrick, 426

F.2d 1161, 1164 (2d Cir. 1970)) (alterations in original). However, “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 (1972)); see Singleton,

210 F. Supp. 3d at 372 (citing cases). “The status of a parolee is frequently described as ‘unique’

because he is ‘neither physically imprisoned nor free to move at will.’” Cusamano, 691 F. Supp.

2d at 319 ( (quoting United States v. Polito, 583 F.2d 48, 54 (2d Cir. 1978)).

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. Specifically, this regulation states:

A special condition may be imposed upon a releasee either prior or subsequent to

release. The releasee shall be provided with a written copy of each special condition

imposed. Each special condition may be imposed by a member or members of the

22

Board of Parole, an authorized representative of the Division of Parole, or a parole

officer.

id. 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.” Pena, 2002 WL 31886175, at *9. Moreover, “Review of

conditions of parole are generally matters for state courts.” Id; see Walker, 2012 WL 1160772, at

*6,

Observing such a regulatory scheme, some courts in this Circuit have found that parolees

do not have a “protected liberty interest in being free from special conditions.” See Pena v. Travis,

No. 01 Civ. 8534 SAS, 2002 WL 31886175, at *13 (S.D.N.Y. Dec. 27, 2002); see also Maldonado

v. Mattingly, No. 11-CV-1091Sr, 2019 WL 5784940, at *7 (W.D.N.Y. Nov. 6, 2019); Cusamano,

691 F, Supp. 2d at 319; Walker, 2012 WL 1160772, at *6 (citing cases).

On the other hand, some courts in this Circuit take the position that parolees have “some”

due process right to be free from certain special conditions of parole, and that “parolees are entitled

to some form of due process in the imposition of special conditions of parole.” See Pollard v.

United States Parole Comm'n, No. 15-CV-9131 (KBF), 2016 WL 3167229, at *4 (S.D.N.Y. June

6, 2016); see also Singleton, 210 F. Supp. 3d at 372-74; Yunus, 2019 WL 168544, at *20.

Those courts that have identified “some” due process right in the context of state-imposed

parole conditions suggest there must be such a right for various reasons, including that under

Supreme Court and Second Circuit precedent, it is established that: (1) parole revocations

implicate a parolee’s due process rights; (2) due process protections attach in the related field of

federal conditions of supervised release; (3) parolees “occupy the highest end of a ‘continuum’ of

liberty interests afforded to prisoners’”; and (4) impermissibly vague special conditions of parole

have been struck down as violative of the due process clause. See Singleton, 210 F. Supp. 3d at

23

372-73; Pollard, 2016 WL 3167229, at *4.

But neither the Second Circuit nor the Supreme Court has ever decided whether the courts

that have found a due process liberty interest in being free from certain state-imposed conditions

of parole or those that have not are correct.

This Court agrees with the view of the courts in Singleton, Pollard, and Yunus that parolees

have some liberty interest in being free from certain special conditions of parole.

Yet, even those courts that recognize “some” due process right related to the imposition of

special conditions of parole also recognize that it is unsettled what “process . . . is due to a. . . sex

offender before he is subject to certain special conditions of parole.” Singleton, 210 F. Supp. 3d at

374 (citing cases).

Plaintiff himself does not offer any indication of what process he believes he was due.

Accordingly, even if Plaintiff had a constitutionally protected interest in being free from the special

condition imposed in this case, Plaintiff's procedural due process claim must fail on the second

prong ~ he fails to plead what process, if any, he was due before that condition could be imposed.

Plaintiff fails to state a procedural due process claim.

2. Substantive Due Process

“Substantive due process protects individuals against government action that is arbitrary,

conscience-shocking, or oppressive in a constitutional sense.” Lawrence v. Achtyl, 20 F.3d 529,

537 (2d Cir, 1994). “‘The first step in substantive due process analysis is to identify the

constitutional right at stake.’” Hurd v. Fredenburgh, 984 F.3d 1075, 1084 (2d Cir. 2021), cert.

denied, 142 S. Ct. 109 (2021) (quoting Kaluczky v. City of White Plains, 57 F.3d 202, 211 (2d Cir.

1995). “Next, the plaintiff ‘must demonstrate that the state action was so egregious, so outrageous,

that it may fairly be said to shock the contemporary conscience.’” Jd. (quoting Southerland v. City

24

of New York, 680 F.3d 127, 151-52 (2d Cir. 2012)); see Scott v. Rosenberger, No. 19-CV-1769,

2020 WL 4274226, at *5 (S.D.N.Y. Jul. 24, 2020) (quoting McCaul vy. Ardsley Union Free Sch.

Dist., 514 F. App'x 1, 3 (2d Cir. 2013) (“To plead a substantive due process claim, a plaintiff must

assert that: (1) a constitutionally cognizable property or liberty interest is at stake, and (2)

defendants’ alleged acts were arbitrary, conscience-shocking, or oppressive in the constitutional

sense ...’”).

As to the first step — identifying the constitutional right — as discussed in the preceding

section on procedural due process, the Court agrees that Plaintiff had a liberty interest in being free

from certain state-imposed special conditions of parole. (See supra, at §1.B.1.1).

However, “To the extent that a parolee’s special conditions may implicate his liberty

interests, those liberty interests are not infringed ‘in the absence of a showing that the [parole]

board or its agents acted in an arbitrary and capricious manner.’” Singleton, 210 F. Supp. 3d at

373. As the Second Circuit explained in Birzon v. King, 469 F.2d 1241 (2d Cir.1972):

[W]hen a convict is conditionally released on parole, the Government retains a

substantial interest in insuring that its rehabilitative goal is not frustrated and that

the public is protected from further criminal acts by the parolee. Although a parolee

should enjoy greater freedom in many respects than a prisoner, we see no reason

why the Government may not impose restrictions on the rights of the parolee that

are reasonably and necessarily related to the interests that the Government retains

after his conditional release.

Id. at 1243; see Yunus, 2019 WL 168544, at *20. Thus, if a condition is imposed that bears “a

reasonable relationship to the parolee’s prior conduct or to a legitimate government interest such

as rehabilitation, the prevention of recidivism and future offenses, and protection of the public,” it

is not arbitrary and capricious and does not violate the parolee’s due process rights. Yunus, 2019

WL 168544, at *20 (citing Singleton, 210 F. Supp. 3d at 372—74 (citing cases)). By contrast, if the

condition bears no such “reasonable relationship,” the parolee may properly challenge that

condition as violative of his limited due process right to be free from conditions that are not

25

reasonably related to his prior conduct or to the government’s interest in his rehabilitation. See

Singleton, 210 F. Supp. 3d at 74 (“as a parolee, Plaintiff has a limited due process right that entitles

him to conditions of parole that are reasonably related to his prior conduct or to the government's

interest in his rehabilitation”).

Here, Plaintiff has plead that Defendant Gonzalez’s imposition of the special condition was

arbitrary and capricious — oppressive — and in violation of his due process rights because the special

condition “had no rational relation to Plaintiffs past or potential future conduct, and was

functionally impossible to follow given that all generally available cell phones have cameras.”

(AC 949). I agree with Plaintiff that these allegations sufficiently plead a substantive due process

claim.

ii. Defendant Gonzalez is Entitled to Qualified Immunity on Count H

Defendant Gonzalez argues she is entitled to qualified immunity on Count II because her

conduct did not violate any “clearly established” substantive due process right.2

For the reasons that follow, the Court agrees.

Courts may grant qualified immunity on the ground that a purported right was not “clearly

established” by prior case law. Pearson v. Callahan, 555 U.S, 223, 236 (2009). To be clearly

established, a right must be sufficiently clear that every “reasonable official would [have

understood] that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640

(1987)). While it is not necessary that “the very action in question” have been previously held

unlawful, “in the light of pre-existing law, the unlawfulness of the officer’s conduct must be

apparent.” Ziglar v. Abbasi, 137 S. Ct, 1843, 1866-67 (2017) (internal quotation marks omitted).

® Tf plaintiff had actually pleaded a procedural due process claim, it would also have been dismissed on qualified

immunity grounds, since the law concerning what process a sex offender is due before he is subjected to certain special

conditions of parole is obviously unsettled. See Singleton, 210 F, Supp. 3d at 374 (citing cases),

26

In other words, “existing precedent must have placed the statutory or constitutional question

beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011); White v. Pauly, 580 U.S. 73, 137

S. Ct. 548, 551 (2017). This standard protects the balance between vindication of constitutional

rights and government officials’ effective performance of their duties by ensuring that officials can

“<reasonably . . . anticipate when their conduct may give rise to liability for damages.’” Anderson,

483 U.S. at 639 (quoting Davis v. Scherer, 468 U.S. 183, 195 (1984)).

“A legal principle is clearly established in the qualified immunity context either when

supported by ‘controlling authority’ or a ‘robust ‘consensus of cases of persuasive authority.””

Wagschal v. Skoufis, 442 F.Supp.3d 612, 624 (S.D.N.Y. 2020) (quoting al-Kidd, 563 U.S. at 742).

“Only Supreme Court and Second Circuit precedent existing at the time of the alleged violation is

relevant in deciding whether a right is clearly established.” Moore v. Vega, 371 F.3d 110, 114 @d

Cir. 2004); see Wagschal, 442 F.Supp.3d at 624 (quoting Okin v. Vill. of Cornwall—On—Hudson

Police Dep't, 577 F.3d 415, 433 (2d Cir. 2009)) (“For controlling authority, this Court generally

‘look[s] to Supreme Court and Second Circuit precedent existing at the time of the alleged

violation to determine whether the conduct violated a clearly established right.’”).

As this Court has noted on previous occasions, the Supreme Court has implied in certain

circumstances that circuit precedent alone may be insufficient support for a finding of “clearly

established law” but it has never explicitly held as much in the qualified immunity context. See

Wagschal, 442 F Supp.3d at 624 (citing cases). Indeed, in a recent case on qualified immunity,

City of Tahlequah, Oklahoma vy, Bond, 142 8.Ct. 9 (2021), the Supreme Court admonished the

Tenth Circuit for finding a right “clearly established” on the grounds that the Tenth Circuit relied

on its own cases that were factually inapposite and that “did not come[] close to establishing that

the officers’ conduct was unlawful” but vot on the grounds that circuit court cases cannot create a

27

clearly established right. See id. at 11-12. For this reason, this Court will consider Second Circuit

precedent in determining whether the right in this case was clearly established.

“To determine whether a particular right was clearly established at the time defendants

acted, a court should consider: ‘(1) whether the right in question was defined with “reasonable

specificity”; (2) whether the decisional law of the Supreme Court and the applicable circuit court

support the existence of the right in question; and (3) whether under preexisting law a reasonable

defendant official would have understood that his or her acts were unlawful.’” Calhoun vy. □□□□

State Div. of Parole Officers, 999 F.2d 647, 654 (2d Cir. 1993) (quoting Jermosen v. Smith, 945

F.2d 547, 550 (2d Cir.1991), cert. denied, 503 U.S. 962 (1992)).

Although, as the Court has discussed in the preceding section, Plaintiff has pleaded a

violation of some substantive due process right in this case, “the qualified immunity analysis

requires greater particularity.” Yunus, 2019 WL 168544, at *19 (citing White v. Pauly, 1378. Ct.

548, 551-52 (2017)). “[I]n the qualified immunity analysis, the Supreme Court has admonished

that rights should not be defined at a high level of generality and instead must be ‘particularized

to the facts of the case.’” Hurd, 984 F.3d at 1084 (quoting White v. Pauly, —- U.S. —---, 1375.

Ct. 548, 552, 196 L.Ed.2d 463 (2017)); see Bond, 142 S.Ct. at 11 (“We have repeatedly told courts

not to define clearly established law at too high a level of generality”). As explained above, the

law and right must be “sufficiently clear” (Anderson, 483 U.S. at 640), “apparent” (Ziglar, 137 S.

Ct. at 1867), or “beyond debate.” Ashcroft, 131 S.Ct. at 2083. Any other construction would render

it entirely impossible for officials to “‘reasonably . . . anticipate when their conduct may give rise

to lability for damages’” and thus unable to engage in effective performance of their duties.

Anderson, 483 U.S. at 639.

A parolee’s due process right to be free from state-imposed special conditions of parole

28

restricting technology use was not clearly established in 2019, which is when the condition at issue

in this case was imposed. There were certainly Second Circuit decisions on the books that

invalidated special conditions restricting access to technology in federal conditions of supervised

release. See Yunus, 2019 WL 168544, at *23 (citing United States v. Sofsky, 287 F.3d 122, 126 2d

Cir. 2002) and United States v. Peterson, 248 F.3d 79, 82-84 (2d Cir. 2001)), Most of these cases

involve First Amendment or other challenges — not due process challenges — to internet restrictions,

which restrictions were deemed unduly draconian in light of the facts of the underlying crime. See

United States v. Eaglin, 913 F.3d 88, 97-98 (2d Cir. 2019) (discussing cases).

However, these cases do not govern state parole conditions. Federal law specifically limits

what sorts of conditions can be imposed on a supervised releasee, see 18 U.S.C. §§ 3553(a),

3563(b), and these cases were decided in the context of that law. Neither the Supreme Court nor

the Second Circuit has ever extended the reasoning of those cases to parole conditions imposed on

state parolees, as opposed to federal supervised releasees.

In the context of state parole conditions, the law is not so clearly established. My colleague

Judge Nathan’s 2019 decision in Yunus is instructive in this regard. In Yunus, the plaintiff was a

parolee and sex offender who was subject to certain special conditions of parole, including

restrictions on possessing a smartphone and laptop. Yunus, 2019 WL 168544, at *1, Plaintiff was

subject to re-incarceration for possessing a smartphone and laptop and sued under 42 U.S.C. §

1983, alleging among other things that the special conditions of parole violated his rights under

the due process clause. Jd. Judge Nathan found that the state parole officer’s imposition of a parole

condition restricting Plaintiff's access to technology was shielded from suit by qualified immunity,

because “Plaintiffs due process rights here were not clearly established for the purposes of

qualified immunity.” Jd. at *23. Specifically, Judge Nathan noted that plaintiff failed to identify a

29

case that clearly established that parole conditions restricting his access to technology were

unlawful. id. She pointed out that federal cases interpreting the “somewhat more stringent statutory

standard imposed” on conditions of federal supervised release involve a “different legal standard”

and “are not controlling authority as to the constitutional analysis of state parole conditions.” /d.

And while she acknowledged at least one district court case, Singleton, “sustainfed] on summary

judgment a challenge to a parole condition limiting a parolee’s ability to own a phone with a

camera where there was no evidence that it was related to prior conduct,” she noted that the court

in that case also granted the defendant’s motion for qualified immunity, on the grounds that “due

process rights in this context are ‘not clearly defined.’” fd. (quoting Singleton, 210 F. Supp. 3d at

374).

Judge Nathan explained:

[While a consensus is emerging that it is arbitrary and capricious under the Due

Process Clause to impose these kinds of technology and internet restrictions

without an individualized link to prior conduct or another legitimate government

interest, it has not yet been sufficiently clearly established for the purposes of the

qualified immunity analysis.

Id. Accordingly, Judge Nathan held that the parole officer was entitled to qualified immunity on

plaintiff's due process claim challenging the parole conditions restricting his access to technology.

In Singleton, the plaintiff was a parolee and designated “discretionary sex offender” who

brought a § 1983 action against two parole officers and a psychologist for alleged violations of his

constitutional due process rights after special conditions were imposed on him that, inter alia,

restricted his use of a cellular telephone. Singleton, 210 F. Supp. 3d at 362. Like Rodriguez, the

plaintiff in Singleton, was prohibited from possessing a cell phone “that is video or photo capable.”

Id. at 363. Later, plaintiff was found with cell phone that had a camera and explicit photos on it,

whereupon he was forbidden to have a cell phone at all. Jd, at 363. The plaintiff sued both for

money damages and for injunctive relief; plaintiff specifically challenged the special condition

30

prohibiting his use of a cell phone as violating his due process rights. Defendants moved for

summary judgment, including on the ground that they were entitled to qualified immunity for the

imposition of the special conditions.

My Eastern District colleague, Chief Judge Brodie, determined that plaintiff could not

recover money damages from Defendants for the special conditions imposed because, “Although

parolees are entitled to certain limited due process rights in the conditions of their parole, those

due process rights are not clearly defined.” Jd. at 374. Judge Brodie recognized that neither the

Supreme Court nor the Second Circuit had clearly established what due process rights a sex

offender has in being free from certain special conditions of parole.

Likewise, here, Plaintiff fails to point to any law that “clearly establishes” his due process

right to be free from the condition imposed in this case. Curiously, Plaintiff points to both Singleton

and Yunus, in which the courts concluded that no such right had yet been clearly established.

Plaintiff also points to Lando v, Annucci, No. 9:18-CV-1472 (TIM/TWD), 2021 WL 1131475, at

#6 (N.D.N.Y. Mar. 4, 2021), R&R adopted sub nom., 2021 WL 1124721 (N.D.N.Y. Mar. 24,

2021), which did not deal with cell phone restrictions at all. □□□ at *7.

Principally, Plaintiff relies on Packingham v. North Carolina, 137 8, Ct. 1730 (2017), in

which the Supreme Court struck down a North Carolina statute that made it a felony for convicted

sex offenders to access social media as violative of the First Amendment. Plaintiff argues that

“both the Singleton and Packingham decisions (and their progeny)” demonstrate that it is clearly

established that his “particular cell phone restriction is unconstitutional.” (SJ Opp., at 8).

Plaintiff's reading of the law is simply incorrect. As stated previously, Singleton expressly

found no clearly established due process right for the purpose of its qualified immunity analysis.

And Packingham does not deal with due process at all. Moreover, since Packingham was decided,

31

several courts in this Circuit have considered the question of whether it applies to conditions of

parole at all. See Lopez v. Stanford, No. 18CV3493RRMLB, 2020 WL 6900909, at *9 (E.D.N.Y.

Nov. 24, 2020), app. dism., 20-4279 (2d Cir. 2021); Yunus, 2019 WL 168544, at *16. The

consensus is that “it has not been established in this jurisdiction that [Packingham] applies to

conditions of supervised release and a number of other federal courts have indicated that it might

not.” Yunus, 2019 WL 168544, at *17 (citing United States v. Rock, 863 F.3d 827, 831 (D.C. Cir.

2017). Plaintiff thus has not shown any “clearly established” due process right under Packingham,

Singleton, or any other controlling case law.

Defendant Gonzalez is entitled to qualified immunity shielding him from Plaintiff's due

process claim, Accordingly, her motion for summary judgment as to Count II is granted and the

claim dismissed.

C. The State Defendants’ Motion to Dismiss Count III (Deliberate Indifference to Over-

Detention) Is Denied; the Motion for Summary Judgment on Count III is Denied.

i. Plaintiff States a Claim for Deliberate Indifference to Oyer-detention Against Defendants

Douglas and Lucas

Plaintiff alleges that his continued incarceration between March 19, when the habeas

decision issued, and March 3, when he was finally released, violated his Eighth and Fourteenth

Amendment rights, and Defendants Douglas and Lucas are liable for that over-detention pursuant

to §1983 for their deliberate indifference to this over-detention. (See AC 9954-56). Plaintiff argues

that he “plead sufficient facts to establish either an Eighth or a Fourteenth Amendment violation”

on his over-detention claim. (SJ Opp., at 10). The Court analyzes each in turn.

I, Eighth Amendment

““A plaintiff asserting an Eighth Amendment claim pursuant to 42 U.S.C. § 1983 must

meet two requirements. First, the alleged deprivation must be, in objective terms, sufficiently

serious. Second, the charged official must act with a sufficiently culpable state of mind.’” Hurd,

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984 F.3d at 1084 (quoting Francis v. Fiacco, 942 F.3d 126, 150 (2d Cir. 2019)). “To satisfy the

first requirement, a plaintiff must plead ‘a harm of a magnitude that violates a person's eighth

amendment rights.’” Jd. (quoting Calhoun, 999 F.2d at 654). ““The Eighth Amendment] |. . .

proscribes more than physically barbarous punishments. It prohibits penalties that are grossly

disproportionate to the offense, as well as those that transgress today’s broad and idealistic

concepts of dignity, civilized standards, humanity, and decency.’” Jd. (quoting Hutto v. Finney,

437 U.S. 678, 685 (1978)).

An “unauthorized detention of just one day past an inmate’s mandatory release date

qualifies as a harm of constitutional magnitude under the first prong of the Eighth Amendment

analysis.” Id. at 1085. This is because “The Eighth Amendment prohibits ‘the unnecessary and

wanton infliction of pain,’ including punishments that are ‘totally without penological

justification.” Jd. (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)) And “There is no

penological justification for incarceration beyond a mandatory release date because ‘any deterrent

and retributive purposes served by [the inmate’s] time in jail were fulfilled as of that date.’” Jd. As

the Second Circuit recently noted, “Next to bodily security, freedom of choice and movement has

the highest place in the spectrum of values recognized by our Constitution” (id) and “freedom

from unlawful restraint is a right so core to our understanding of liberty that suffering even one

day of unlawful detention is a harm recognized by the Constitution.” /d. at n. 4.

Yet, “The constitutional claim is not measured by the punishment alone, for ‘an Eighth

Amendment violation typically requires a state of mind that is the equivalent of criminal

recklessness.’” Jd. at 1084 (quoting Francis, 942 F.3d at 150). “‘This standard requires that only

the deliberate infliction of punishment, and not an ordinary lack of due care for prisoner interests

or safety, lead to liability.’” Z@. (quoting Francis, 942 F.3d at 150). “Under this standard, prison

33

officials can be found ‘deliberately indifferent to their own clerical errors on the basis of their

refusals to investigate well-founded complaints regarding these errors.’” /d. at 1084-1085 (quoting

Francis, 942 F.3d at 151). However, “If a period of prolonged detention results from discretionary

decisions made in good faith, mistake, or processing or other administrative delays, as opposed to

the deliberate indifference of prison officials, then there is no Eighth Amendment liability.” □□□ at

1086.

Here, Plaintiff alleges that he was entitled to immediate release on March 19, “because the

writ itself vacated the warrant,” and that he was subjected to twelve additional days of detention

(at that outset of the COVID-19 pandemic) between March 19 and March 31. (See AC 33, 35).

Under Second Circuit law, such an over-detention “qualifies as a harm of constitutional

magnitude” in violation of the Eighth Amendment. See Hurd, 984 F.3d at 1085.

Defendants Douglas and Lucas argue that Plaintiff's claim fails because under New York

law, he was not “entitled to release the same day that the State court order took effect” and that the

AC “fails to allege when the State court order granting release became effective by being entered.”

(State Br., at 23-24). Instead, they argue that “the controlling statute requires . . . discharge

‘forthwith’ after a release decision” and that “forthwith” means “promptly and with reasonable

dispatch” -- not “immediately.” (State Br., at 8-9 (citing C.P.L.R. § 7010(a) and Onondaga Cry. v.

N.Y.S. Dep’t of Corr. Servs., 97 A.D.2d 957, 957 (N.Y. App. Div. 4th Dept. 1983), aff'd 62 N.Y.2d

826 (1984)). They argue that Plaintiff's rights were not violated because the delay in his release

was “reasonable.” (State Br., at 9, 24).

Defendants’ arguments on this point are, at this moment, unpersuasive. The Second Circuit

has recently held that “just one day” of over-detention “qualifies as a harm of constitutional

magnitude,” Hurd, 984 F.3d at 1085, and it is well-established under New York State law that a

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writ of habeas corpus itself “may be sustained only when the petitioner is subject to immediate

release from custody.” People ex rel. Kennedy v. Warden, Vernon C. Bain Center, 45 Misc. 3d

945, 992 N.Y.S.2d 876 (Sup. Ct. N.Y. Cnty. 2014) (citing cases) (emphasis added); see People v.

Superintendent, Fishkill Correctional Facility, N.Y.S. DOCCS, 190 A.D.3d 863, 140 N.Y.8.3d 547

(2d Dep’t 2021). Even taking Defendants’ argument that a writ only requires release “with

reasonable [but perhaps not immediate] dispatch,” the law also requires that it be “prompt,” and

whether twelve days qualifies as “prompt” at the very least raises a genuine issue of material fact,

given that Plaintiff's liberty was at stake.

As Justice Clark once explained on behalf of a unanimous Supreme Court, a writ of habeas

corpus is “the highest safeguard of liberty.” Smith v. Bennett, 365 U.S. 708, 712 (1961). My late

colleague Judge Sweet similarly wrote, “The writ, along with the right to trial by jury, is among

the most fundamental features distinguishing our free society from a police state, where unbridled

and arbitrary imprisonment is used as an instrument of tyranny.” Rosa v. Senkowski, No. 97-cv-

2468, 1997 WL 436484, at *5 (S.D.N.Y. Aug. 1, 1997), aff'd, 148 F.3d 134 (2d Cir. 1998) (citing

Johnson v. United States, 333 U.S. 10, 17 n. 8 (1948)). Its “‘great object ... is the liberation of

those who may be imprisoned without sufficient cause.’” /d. (quoting Ex Parte Watkins, 28 U.S.

(3 Pet.) 193, 202 (1830)). It does not follow that it is “reasonable” to subject someone to twelve

additional days of detention after a writ of habeas corpus is granted. Plaintiff has pleaded that he

was entitled to be released upon the grant of the writ, yet was subjected to nearly two additional

weeks of detention.

As to Defendant Douglas and Lucas’ state of mind, Plaintiff has alleged they were

deliberately indifferent to his over-detention because they knew the writ had been granted but did

nothing to effectuate plaintiffs release. Defendant Lucas admitted that the warrant was

35

inaccurately listed in the system as “active;” she promised to have “staff check the status in a more

reliable system,” but Plaintiff alleges that neither officer did anything further to lift the parole hold

in order to secure Plaintiff's release. (See AC 934-37). Whether such conduct rises to the level of

“deliberate indifference” is an issue of fact precluding dismissal. Plaintiff has specifically pleaded

that there was a system error that caused a delay in his release, and that Defendant Lucas promised

to look into the issue but did not do so. Plaintiff also alleges that Defendant Douglas knew that he

had been ordered released but did nothing to obviate the delay in getting Plaintiff out of jail. Each

of these alleged failures to investigate and respond could have resulted at least in part in the

infliction of Plaintiffs unjustified detention.

Although Defendants Douglas and Lucas argue they did not have authority to secure his

release, that is a factual issue that is not properly resolved on this motion. Plaintiff alleges they had

such authority by asserting that Defendants Douglas and Lucas “work[] for DOCCS” and were

“responsible” for his “timely release” (AC J15-16). Crediting Plaintiffs allegations, as the Court

must at this stage, Plaintiff has sufficiently alleged a culpable state of mind as to Defendants

Douglas and Lucas.

Accordingly, Plaintiff's complaint states a claim for deliberate indifference to over-

detention under the Eighth Amendment.

2. Fourteenth Amendment

As explained previously, “‘The first step in substantive due process analysis is to identify

the constitutional right at stake.’” Hurd, 984 F.3d at 1087 (quoting Kaluczky, 57 F.3d at 211. “Next,

the plaintiff ‘must demonstrate that the state action was so egregious, so outrageous, that it may

fairly be said to shock the contemporary conscience.” Jd. (quoting (quoting Southerland v. City

of New York, 680 F.3d 127, 151-52 (2d Cir. 2012)).

“‘Freedom from bodily restraint has always been at the core of the liberty protected by the

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Due Process Clause from arbitrary governmental action.” /d at 1088 (quoting Foucha v.

Louisiana, 504 U.S. 71, 80 (1992)). ““[C]ommitment for any purpose constitutes a significant

deprivation of liberty that requires due process protection.’” fd. (quoting Foucha, 504 U.S. at 80).

As with the Eighth Amendment claim, Plaintiff has alleged a violation of his liberty interest

by his continued incarceration following the grant of the writ of habeas corpus. However, he fails

to allege that either Defendant Douglas or Defendant Lucas’ conduct was “egregious and shocking

to the conscience,” as required. See Hurd, 984 F.3d at 1089. He alleges that Defendants Douglas

and Lucas knew of the writ, knew of an error in the computer system that meant his parole warrant

was still listed as active, but failed to act to secure his release. While such conduct may constitute

negligence (and the State Defendants admit as much, see State Br., at 23), as a matter of law, it

does not constitute conduct “egregious” or “shocking to the conscience.” Plaintiff's complaint fails

to state a claim for deliberate indifference to over-detention under the Fourteenth Amendment.”

ii. Genuine Issues of Fact Remain as to Whether Defendants Douglas and Lucas_Are

Entitled to Qualified Immunity on Count Ii

Defendants Douglas and Lucas argue that in 2020 it was not “clearly established” that a

twelve-day delay in Plaintiffs release violated the law, and so they are entitled to qualified

immunity on Count III. This argument fails.

The standard for qualified immunity discussed above is incorporated by reference. (See

supra, §1.A.iii). As explained above, courts may grant qualified immunity on the ground that a

purported right was not “clearly established” by prior case law. Pearson, 555 U.S. at 236. The

“unlawfulness of the officer’s conduct must be apparent,” Ziglar, 137 S. Ct. at 1867, or “beyond

debate.” Asheroft, 131 S.Ct. at 2083.

> There is no contradiction between the finding that Plaintiff has stated a substantive due process claim as to imposition

of the condition but not as to deliberate indifference to his right to get out immediately.

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Here, Plaintiff alleges that at the time of his over-detention in 2020, he had a clearly

established right to “prompt release” upon the grant of the writ of habeas corpus. (SJ Opp, at 11).

That is a reasonably specific right. As discussed above, the decisional law of the Supreme Court

and the Second Circuit supported the existence of the right to prompt release upon the grant of a

writ of habeas corpus. (See supra, § 1.D.i.1); see Rosa, 1997 WL 436484, at *5.

While Plaintiff does not indicate the precise amount of time constitutes a “prompt” release,

the Second Circuit has recently counseled in Hurd against engaging in such an “arbitrary task of

distinguishing between the permissible and impermissible length of unauthorized detention under

the Constitution.” Hurd, 983 F.3d at 1085 n. 4. Instead, the relevant “approach” has long been to

“recogniz[e| a harm of constitutional magnitude whenever an inmate is detained without

authorization but finding a constitutional violation only where that harm is deliberately inflicted.”

Id. This approach reflects the fundamental principal that has long existed in the law: “freedom

from unlawful restraint is a right... core to our understanding of liberty.” Jd.

Although Hurd was decided in 2021, its principals were well-established in 2020. See e.g.,

Brown vy. Coughlin, 704 F.Supp. 41, 45 (S.D.N .Y.1989) (“Failure to act while [plaintiff] remained

imprisoned beyond his release date is not conduct protected by qualified immunity.”). Under

preexisting law, no reasonable official would believe it was permissible to simply do nothing and

allow a person to remain in custody for twelve additional days after the grant of a writ of habeas

corpus. None of Defendants’ cases suggest otherwise. Indeed, as Plaintiff points out (SJ Opp., at

10), none of Defendant’s cases dealt with a person who had been granted a valid writ of habeas

corpus. In this regard, they are inapplicable. The Court finds Plaintiff had a clearly established

right to prompt release after the grant of the writ.

The remaining questions — whether the harm was deliberately inflicted, and whether it was

38

even possible for DOCCS to act faster than it did’? — are questions of fact that cannot be resolved

on a pre-discovery motion for summary judgment.

Defendants Douglas and Lucas are not entitled to qualified immunity on Plaintiff's over-

detention claim. Their motion for summary judgment as to Count III is denied.

Il. Count If (Deliberate Indifference to Over-Detention) Against Warden Bastian is

Dismissed with Prejudice

It is undisputed that Warden Bastian retired from the DOC in February 2020 before the

events underlying the claim against him took place. (See MTD Br., at 5 n. 1 and MTD Opp., at 1

n.1). The period of Plaintiff's alleged “over-detention” occurred in March 2020, after Defendant

Bastian retired. Plaintiff does not dispute that the Warden retired in February 2020 and in his

opposition stated he would “voluntarily withdraw[]” his claims against Warden Bastian. (MTD

Opp., at 1 n.1). However, Plaintiff did not file a notice or stipulation of dismissal to that effect

pursuant to Rule 41(a)(1) and does not specify whether his withdrawal is with or without prejudice.

Having failed to file a notice of dismissal or stipulation as to Warden Bastian, the Court

will treat Plaintiff's agreement to “voluntarily withdraw[]” his claim against Warden Bastian as a

“request” for a court order dismissing the claim against Warden Bastian pursuant to Rule 41(a){2).

The Court will grant the request on the condition that the dismissal is with prejudice. Given that

Plaintiff concedes that the Warden retired before the relevant events underlying the claim took

place, there is no basis for asserting the over-detention claim against the Warden and it would be

futile to attempt to reassert this meritless claim in the future.

Count III is dismissed with prejudice as against Warden Bastian.

'0 The court cannot help but note that the writ was granted on March 19, 2020, which was literally at the beginning of

the COVID-19 shutdown in March 2020. On the one hand, the threat of the virus would seem to make Plaintiff's

continued incarceration all the more egregious; on the other, the whole world was falling apart at that time, and it weil

may be something of a miracle that the DOCCS officials were able to sort this out in as few as twelve days. But

whether that period is unreasonable is not something that can be decided on a pre-discovery motion.

39

Ill. The City’s Motion to Dismiss Counts IV, V, VI, and VII for Failure to State a Claim is

Granted in Part, Denied in Part

A. The City’s Motion to Dismiss the False Imprisonment (Count TV) Claim is Denied

Plaintiff asserts one claim for common law false imprisonment against the City under the

doctrine of respondeat superior.

Under New York law, the elements of a false imprisonment claim are: “(1) the defendant

intended to confine [the plaintiff], (2) the plaintiff was conscious of the confinement, (3) the

plaintiff did not consent to the confinement and (4) the confinement was not otherwise privileged.”

Broughton v. State, 37 N.Y.2d 451, 456, 373 N.Y.S.2d 87, 335 N.E.2d 310 (1975), cert. denied,

423 U.S. 929 (1975). Where a plaintiff “was lawfully detained pursuant to a facially valid warrant

issued by the New York State Division of Parole,” such detention is “a privileged confinement

[and] will not give rise to an action against the entity that detained plaintiff.” Dupree v. Pough,

454 F.Supp.2d 166, 170 (S.D.N.Y. 2006). However, a claim for false imprisonment may proceed

past a motion to dismiss where a plaintiff pleads that “the confinement was not otherwise

privileged because the DOCCS warrant was invalid.” See Iverson v. Annucci, No. 18-CV-0886,

2020 WI. 1083152, at *6 (W.D.N.Y. Feb. 28, 2020),

The City contests only the fourth element, arguing that Plaintiff's detention was privileged

because “the City was entitled to” wait on the State’s advice “that the parole warrant is lifted and

the inmate may be discharged” and, absent any such advice, could “assume that Plaintiffs

detention remained in effect.” (MTD Br., at 11). It argues that “up until the point that City DOC

received the warrant lift from State DOCCS (and immediately thereafter released Plaintiff), it

reasonably believed that Plaintiff was being held under a valid warrant and it did not have the

authority to release Plaintiff.” (Dkt. No. 32, at 8). The City raises several factual issues as well,

arguing that the City “did not receive notice of the writ” because “Plaintiff failed to update the

40

Bronx Supreme Court on where he was being held and the only City employee who Plaintiff

alleges was told about the writ had already retired when the writ was granted.” (Ud). Plaintiff

alleges that the City was notified. (See AC 429).

Setting aside the City’s factual arguments, which cannot be considered on this motion, the

Court cannot conclude as a matter of state law that the confinement was privileged. Plaintiff has

alleged that, after Justice Clancy vacated the parole warrant and ordered Plaintiffs release, the

City — and the warden at Rikers Island-- were notified and should have secured his “timely”

released but instead “ignored” the writ of habeas corpus. (See AC {¥28, 31). In other words, he

has alleged that the warrant was no longer valid, and the confinement was not privileged.

This situation is like that of the plaintiff in Uviles v. City of New York, No. 19-cv-3911,

2020 WL 8642289 (E.D.N.Y. June 30, 2020). There, like here, there was “a parole warrant” that

was no longer valid, yet plaintiff remained incarcerated. /d. at *1. Specifically, the plaintiff posted

bail on all the charges remaining against him and was thus entitled to be released from custody.

Uviles v. City of New York, No. 19-cy-3911, 2020 WL 1916865, at *1 (E.D.N.Y. Apr. 20, 2020).

“Nevertheless, plaintiff remained in custody on Rikers Island for another eighteen days.” Jd.

During that time, the plaintiff repeatedly asked corrections officers why he had not yet been

released and “they repeatedly told him that the computer system indicated that a parole hold was

still in effect and, therefore, they could not release him.” /d. “During the eighteen-day hold, both

plaintiff's attorney and his parole officer contacted various members of DOCCS and the [DOC] in

an attempt to secure plaintiff's release.” Jd. Yet, the plaintiff “remained in detention until the hold

was removed.” Jd, The plaintiff alleged that he was subjected to such unlawful detention because

DOCCS and DOC continue to follow a “broader policy or custom” of “routine[ly] honoring

informal parole holds regardless of whether the parolee was no longer being lawfully

4]

detained.” Urviles, 2020 WL 8642289, at *1.

In denying the defendant City’s motion to dismiss the false imprisonment claim, Judge

Cogan rejected on reconsideration the defendants’ argument that “the confinement was privileged

merely because of the existence of a parole warrant.” Id. Judge Cogan found instead that the

plaintiff “plausibly allege[d] that, at some point during his detention,” the plaintiff was no longer

“being held pursuant to the parole warrant or based on ‘knowledge or reasonably trustworthy

information of facts and circumstances that are sufficient to warrant a person of reasonable caution

in the belief that he should remain detained.” Jd. (citing Weyant v. Okst, 101 F.3d 845, 852 (2d

Cir. 1996)). Because “neither DOCCS nor DOC was any longer relying upon a parole warrant —

or, for that matter, a belief that there was reasonable cause for his detention — in denying him

release,” the confinement was not privileged. Id.

So too here. Construing the facts most favorably for Plaintiff, the City had been notified

that the warrant had been vacated and yet failed to release Plaintiff despite the grant of the writ

and order for his release. There is at the very least a genuine issue of fact as to whether continuing

confinement in those circumstances was privileged. At this early stage, the Court finds Plaintiff

has stated a claim for false imprisonment for his continued imprisonment following the grant of

his writ of habeas corpus.

B. The City’s Motion to Dismiss the Negligence Claim (Count V) Is Granted,

In response to the City’s motion to dismiss Count V, the common law negligence claim,

Plaintiff does not rebut the City’s motion but states that he “voluntarily withdraws” the claim. (See

MTD Opp., at 1 n.1). Plaintiff does not state whether the withdrawal is with or without prejudice.

As this Court has recently explained in another case, a plaintiff cannot simply unilaterally

discontinue some claims against a party without a court order. See Thorpe v. City of New York,

No. 19-CV-5995, 2022 WL 3112125, at *1 (S.D.N.Y. Aug. 4, 2022) (citing Fed. R. Civ. P. 41).

42

Because in this case, the City moved to dismiss the claim and Plaintiff offered no rebuttal, | read

his concessionary withdrawal as abandonment of the claim. See Simon v. City of New York, No.

14-CV-8391, 2015 WL 4092389, at *2 (S.D.N.Y. Jul. 6, 2015) (where plaintiffs are “on notice

that Defendants were seeking dismissal of their... claims . . . It follows that, whether or not

Defendants’ arguments had merit, it was Plaintiffs’ obligation to address the issue, on pain of their

claim being deemed abandoned.”) (citing cases),

Accordingly, the City’s motion to dismiss Count V is granted and the claim is dismissed.

C. The City’s Motion to Dismiss the New York State Constitution Claim (Count VJ) is

Denied in Part, Granted in Part.

In response to the City’s motion to dismiss Count VI, Plaintiff agreed to voluntarily

withdraw his claims against the City for violations of Article 1, §§ 1, 8, 9, and 11 of the New York

State Constitution. (See MTD Opp., at 1 n.1}. For the same reason that Count V is dismissed

(supra, §III.B), these claims are dismissed.

All that remains of Count VI for the purpose of the motion before this Court are Plaintiffs

allegations that the City violated Article I § 6 (due process) and Article I § 12 (unreasonable

searches and seizures) of the New York State Constitution. The City argues that these each fail as

a matter of law because Plaintiff has an “alternative remedy” at law for each of these claims under

the Federal Constitution and New York common law. (MTD Br., at 13-14).

In Brown v. State of New York, 89 N.¥.2d 172 (1996), the New York Court of Appeals

recognized a private right of action for damages for violations of provisions of the State

Constitution. Jd. at 191-192, In so finding, the Court of Appeals explained that claims should not

be “confine[d] ... to tort causes of actions,” as doing so “would produce the paradox that

individuals, guilty or innocent, wrongly arrested or detained may seek a monetary recovery

because the complaint fits within the framework of a common-law tort, whereas these claimants,

43

who suffered similar indignities, must go remediless because the duty violated was spelled out in

the State Constitution.” /d. at 191. The Court explained that common law torts may be analogous

to the protections of the New York State Constitution, they cannot entirely replace such

protections:

The common law of tort deals with the relation between individuals by imposing

on one a legal obligation for the benefit of the other and assessing damages for harm

occasioned by a failure to fulfill that obligation Common-law duties arise in

virtually all relationships and protect against most risks of harm. Constitutional

duties, by contrast, address a limited number of concerns and a limited set of

relationships. Constitutions assign rights to individuals and impose duties on the

government to regulate the government’s actions to protect them. It is the failure to

fulfill a stated constitutional duty which may support a claim for damages in a

constitutional tort action.

Id. at 178-79 (internal citations omitted).

Later in Martinez v. City of Schenectady, 97 N.¥.2d 78 (2001), the Court of Appeals

clarified that Brown established a “narrow remedy” that specifically “addresses two interests: the

private interest that citizens harmed by constitutional violations have an avenue of redress, and the

public interest that future violations be deterred.” /d at 83. Ifa claimant fails to establish “how

money damages are appropriate to ensure full realization of her asserted constitutional rights,”

dismissal of the Constitutional claim is appropriate. /d. at 84.

Since then, New York courts have repeatedly found that Constitutional claims need not be

recognized where it is “neither necessary nor appropriate to ensure the full realization of

[plaintiff's] rights” to do so because “the alleged wrongs could have been redressed by an

alternative remedy, namely, timely interposed common-law tort claims.” See Lyles v State, 2 AD3d

694, 695-696) (2d Dept. 2003], aff'd 3 NY3d 396 (2004); Donas v. City of New York, 2008 N.Y.

Slip Op. 30241(U), 2008 WL 293038 (Sup. Ct. N.Y. Co. Jan. 21, 2008), aff'd, 62 A.D.3d 504 (1st

Dep’t 2009); Townes v New York State Metropolitan Transp. Auth., 2011 N.Y. Slip Op. 32487(U),

2011 WL 4443604 (Sup. Ct. Nassau Co. Sept. 14, 2011) (“Where there exist alternative statutory

44

or common-law remedies, it has been held improper to find a State constitutional claim.”). The

same is true where “‘the plaintiff has an alternative remedy under § 1983 for violations of parallel

provisions of the U.S. Constitution.” Buari v. City of New York, 530 F.Supp.3d 356, 409-10

(S.D.N.Y. 2021) (quoting Alwan vy. City of New York, 311 F. Supp. 3d 570, 586 (E.D.N.Y. 2018)

(citing cases)).

However, courts in this Circuit have also repeatedly found that “Because § 1983 does not

authorize respondeat-superior liability, it cannot provide an adequate alternative remedy for

Plaintiff's New York State constitutional claims, to the extent they are asserted against the City.”

See Alwan vy. City of New York, 311 F. Supp. 3d 570, 587 (E.D.N.Y. 2018); see also Buari v, City

of New York, 530 F.Supp.3d 356, 409-10 (S.D.N.Y. 2021) (holding that “state constitutional due

process claims against the City survive to the extent they are based on a respondeat superior

theory”); Logan v. City of Schenectady, No. 18-cv-01179, 2019 WL 3803631, at *9 (N.D.N.Y.

Aug. 13, 2019) (same); Brown v. City of New York, No. 13-cv-06912, 2017 WL 1390678, at *15

(S.D.N.Y. Apr. 17, 2017) (same); Espinoza v. City of New York, 194 F. Supp. 3d 203, 208

(E.D.N.Y. 2016) (same). That is the case here insofar as Plaintiff's Article I § 6 due process claim

is concerned. The City argues that Plaintiffs claims should be dismissed because Plaintiff has an

“alternative remedy” at law under “the federal Constitution” (MTD Br., at 13), but the City does

not identify an alternative state cause of action that could have been brought to redress Plaintiff's

due process claim against the City based on a respondeat superior theory. Accordingly, as other

courts in this Circuit have held, Plaintiff's “state constitutional due process claim[] against the

City” may “survive to the extent [it is] based on a respondeat superior theory.” See Buari, 530

F.Supp.3d at 409-410. The City’s motion to dismiss Plaintiff's due process claim under Article I

§ 6 of the New York State Constitution is denied.

45

By contrast, the City correctly argues that Plaintiff has an adequate alternative remedy at

law for his Article I § 12 claim of unreasonable seizure; specifically, the City argues that the claim

duplicates the common law tort of false imprisonment, which Plaintiff alleges in Count IV of the

AC. Because Plaintiff has an adequate alternative remedy at law for his Article I § 12 claim, the

City’s motion to dismiss this claim is granted.

As explained above, the City’s motion to dismiss Count VI is denied in part, granted in

part.

D. The Motion to Dismiss Plaintiff's Monell Claim Against the City (Count VII) Is

Denied

Plaintiff alleges a violation of his rights under Moned/ v. Department of Soc. Sves., 436 US,

658 (1978).

“Monell does not provide a separate cause of action . . . it extends liability to a municipal

organization where that organization’s failure to train, or the policies or customs that it has

sanctioned, led to an independent constitutional violation.” Segal v. City of New York, 459 F.3d

207, 219 (2d Cir. 2006) (emphasis in original). To state a claim for municipal liability under

Monell, a plaintiff must allege: “(1) a municipal policy or custom that (2) causes the plaintiff to be

subjected to (3) the deprivation of a constitutional right.” Agosto v. N.Y.C. Dep't of Educ., 982

F.3d 86, 97 (2d Cir. 2020). Since “Monell expressly prohibits respondeat superior liability for

municipalities . . . a plaintiff must demonstrate that ‘through its deliberate conduct, the

municipality was the ‘moving force’ behind the injury alleged.” Jd. at 98 (quoting Bd. of □□□

Comm'rs of Bryan Cty., Okla v. Brown, 520 U.S. 397, 404 (1997)) (emphasis in original).

In this case, Plaintiff alleges that his unconstitutional deprivation of liberty (which as

explained in the foregoing sections is sufficiently alleged) resulted from a City policy to “ignore

writs of habeas corpus until DOCCS lifts the parole hold, even if there is no justification for the

46

detention.” (AC 32). Plaintiff supports this allegation with the sworn testimony of DOC Captain

Anthony Monastero, head of the Custody Management Unit, who explained in the Uviles case that,

effectively, it is DOC policy that a “parole warrant stays in effect until [DOC] receive[s] a parole

warrant lift [from DOCCS}. The parolee can leave the hearing, the final hearing or preliminary

hearing, and the judgment can be that the parole warrant is no longer active. But at DOC, we can’t

act on that until we get a parole warrant lift from the New York State DOCCS Division of Parole.

Regardless of what happens in. the hearing.” Ud). Plaintiff has accordingly sufficiently alleged

there was a City policy to “ignore” valid grants of writs of habeas corpus, which resulted in an

unconstitutional deprivation of liberty. Plaintiffs allegations are sufficient at this stage of the

litigation to state a Monell claim.

The City’s motion to dismiss Count VII is denied.

CONCLUSION

For the reasons discussed above, the Defendants’ motions to dismiss Counts II and V are

granted. Counts II and V are dismissed.

Count III is dismissed as against Defendant Bastian. Defendant Bastian is dismissed from

this case.

The City’s motion to dismiss Count VI is granted in part, denied in part. Count VI is

dismissed to the extent it alleges a violation of Article I §§ 1, 8, 9, 11, and 12 and denied to the

extent it alleges a violation of Article I §6 of the New York State Constitution.

The Defendants’ motions as to Counts I, IJ, [V, and VII are otherwise denied.

The Clerk of Court is respectfully directed to close the open motions at Docket Numbers

21, 23, and 34.

This constitutes the decision and order of the Court. It is a written opinion.

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Dated: August 22, 2022 [‘hter Me pL

ULS.D.J.

BY ECF TO ALL COUNSEL

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