Opposition — Leonhard v. United States

Supreme Court brief1981

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No. 80-1260

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

‘4

Tomas S. Leonnarp, et al.,

Petitioners,

against

Unirep States or America, et al.,

Respondents.

BRIEF FOR STATE RESPONDENTS IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI TO

COURT OF APPEALS FOR THE SECOND CIRCUIT

Rosert ABRAMS

Attorney General of the

State of New York

Attorney for New York State

Respondents

Office and P.O. Address

Two World Trade Center

New York, New York 10047

Tel. No. (212) 488-3105

SHIRLEY ADELSON SIEGEL

Solictor General

Geratp J. Ryan

Assistant Attorney General

Of Counsel

-*%

TABLE OF CONTENTS

ArcuMENT—Petitioners’ present no grounds for cer-

OE io HAVING DEKE oy RereRR VINE oi eeeebe

Petitioners’ Claims Do Not Rise to a Con-

SN PN 7, Ca oiac dn he's Oe oo ae

Petitioner Ledénhard’s Suit Is Time-Barred

. The Eleventh Amendment Bars Mainte-

nance of Pétitioners’ Suit ...............

The Petitioners Allege No Personal Involve-

ment By the State Respondents ..........

The Petitioners Have Failed to Adequately

‘Present Reasons For the Supreme Court to

Issue a Writ of Certiorari ...............

I ee ea oly cent Se ot od Ae Ne

*-.

ii Cases Crrep

Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970) ..

Alabama v. Pugh, 438 U.S. 781 (1978) ............

Board of Regents v. Tomanio, 446 U.S, 478 (1980)

Boothe v. Hammock, 605 F. 2d 661 (2d Cir. (1979)

Briley v. California, 564 F.2d 849 (9th Cir. (1977)

Competitive Associates Inc. v. Fantastic Fudges, Inc.

58 F.R.D, 121 (D.C. eS > SNE ods be eticen sence

Edelman v. Jovdan, 415 U.S. 651 (1974) . intlek eee re

Ford Motor Company v. Department of Treasury,

See ie GO LEY via vivnn cdchhpecesenecnnens

Greenholtz v. Inmates of the. Nebraska Penal and

Correctional Complex, et al., 442 U.S. 1 (1979)

Johnson v. Glick, 481 F.2d 1028 (2d Cir.), cert. den.,

GER Ca SO CRED hike. we foes ds ccc dans bon ban

Johnson v. Railway Express Agency,

421 U.S. 4546 (1980) 2.0... cccccvccccceccvcces

Martinez v. California, 444 U.S. 277 (1980) ........

Monell v. Department of Social Services,

GO: FE PER WA hed daRe cae Agrdbascoye

Quern v. Jordan, 440 U.S. 332 (1979) .............

Quinn v. Syracuse Model Neighborhood Corporation,

613 F.2d 438 (2d Cir. 1980) ........... eee eee

Rizzo v. Goode, 423 U.S. 362 (1976) ...............

Taylor v. Mayone, 626 F.2d 247 (2d Cir. 1980) .....

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CASES CITED

StTaTuTes AND Ruues Crirep

Constitution of the United States

Eleventh Amendment ..............05:

SP AMON HED osvveccadeccvevvectons

i Sheba ct secedh 6 vee gest sees

Federal Rules of Civil Procedure

New York State Corrections Law

SE AME asa cae CWeeepedreccceisueds

New York Executive Law

ROE BD hac cetidtccnspocvoccocccccces

New York Civil Practice Law and Rules

ie uC eh he va

ili

Rules of the Supreme Court of the United States

ME dace Balante » Uaiath sie Vows 4.6 beers kia

en ne Nd ae eee

i |

In THE

Supreme Court of the United States

OCTOBER TERM, 1980

Tomas S. Leonwarp, et al.,

Petitioners,

against

Unrrep Srares or America, et al.,

Respondents.

BRIEF FOR STATE RESPONDENTS IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI TO

COURT OF APPEALS FOR THE SECOND CIRCUIT

Questions Presented

Do the petitioners, their children and their natural

father, have any actionable claim against the State respon-

dents, who released a prisoner into federal custody in

connection with a plan to use his testimony to secure

certain convictions, resulting in his obtaining a new

identity for himself and the mother of the said children

and for them as well, and in the petitioner father’s loss

of visitation and other parental rights during such period?

If there is any such claim is it barred by the Statute

of Limitations and the Eleventh Admendment?

Opinions Below

The opinion of the Court of Appeals, dated August 28,

1980, which affirms the District Court, is reported at 633

F’, 2d 599, and it appears in the petition in Appendix “A”,

at pp. A-8 et seq.

The opinion of the District Court, dismissing the claims

against the State defendants, is dated October 25, 1979,

is not officially reported and is printed in Appendix “A”

at pp. A-72 et seq.

Jurisdiction

Petitioners seek to invoke the jurisdiction of this Court

under 28 U.S.C. § 1254(1).

Statement of the Case

Defendant Calabrese was released from the custody of

the New York State Department of Correctional Services

upon the granting of his absolute discharge by the state

agency defendants. Prior to his discharge in the late

1960’s Calabrese was in state custody following his con-

viction for robbery.

Subsequent to his release, Calabrese joined the Federal

Witness Protection Program and, as agreed, he, Rochelle

Leonhard and her three children received new identities

and were relocated in exchange for his cooperation with

federal authorities.

In order to safeguard the welfare of the relocated

parties, plaintiff Leonhard was unable to see his children

during the period from 1967 to 1975.

Plaintiffs filed a complaint with the United States Dis-

trict Court for the Western District of New York seeking

declaratory relief, injunctive relief and monetary damages

against defendants. Upon motions to dismiss brought

pursuant to Rule 12 of the Federal Rules of Civil Pro

cedure, the District Court (Burke, J.) granted the motions

and dismissed the complaint.

The United States Court of Appeals, Second Cireuit,

subsequently affirmed the denial of all claims.

ARGUMENT

Petitioners present no grounds for certiorari.

I. Petitioners’ Claims Do Not Rise to a Constitutional Level.

The substance of the complaint filed against the New

York State Department of Correctional Services, New

York State Board of Parole, Benjamin Ward and Eugene

Hammock® is that the two latter parties released defen-

dant Calabrese from a New York State Correctional

Facility allegedly in violation of the authority and rules

of the Parole Board. However, since this claim does not

rise to the level of a constitutional violation, the claim

is not cognizable by the Supreme Court.

In order to state a valid claim under 42 U.S.C. § 1983,

one must show the deprivation of a federally protected

constitutional right. Adickes v. S.H. Kress & Co., 398

U.S. 144 (1970). The release of a state prisoner by state

authorities is, however, a state matter, and in no way

can it be construed as a violation of federally protected

right. (Moreover, Calabrese’s release was clearly proper

under New York State law. Corrections Law, § 281, para-

graph 3, in effect at the time of the release, authorized

“absolute release and discharge”.)

*The suit was brought naming inter alin Ward and Ham-

mock and their “predecessors in office.” At the time of the

release of Calabrese, from State custody in 1968, Neither Ward

nor Hammock held the public office that he held at the time of

the commencement of this suit in 1978.

*»

This Court has held that the possibility of parole release

is an interest which is not necessarily entitled to due

process protection. Greenholte v. Inmates of the Nebraska

Penal and Correctional Complez, et al., 442 U.S. 1 (1979).

The Second Circuit, in construing Greenholte in Boothe v.

Hammock, 605 F. 2d 661, 6638, 664 (2d Cir. 1979), found

that although a state’s statutory scheme for determining

parole release can create a protectible expectation of

parole, New York’s parole provisions do not establish

such a scheme, While guidelines are used to structure

the exercise of discretion (see New York Executive Law

§258-c4 [McKinney Supp. 1978]), no entitlement to

release is created.

Since there is no constitutional protection of parole

release in New York, such a release is not reviewable by

the Supreme Court. Moreover, decisions of the Executive

Branch do not automatically invoke due process protec-

tion; “there simply is no constitutional guarantee that all

executive decision making must comply with standards that

assure error-free determinations. This is especially true

with respect to the sensitive choices presented by the

administrative decision to grant parole release.” Green-

holte v. Nebraska, supra at 7.

If plaintiffs were injured by the release of Calabrese,

such injury would not be proximately related to the State

defendants’ actions, nor could such an injury be foreseen.

Therefore, the District Court was correct in dismissing the

complaint against the State defendants on the ground that

the complaint alleges no cause of action upon which relief

can be granted pursuant to 42 U.S.C. § 1983, and the

Second Circuit was correct in affirming that judgment.

Il. Petitioner Leonhard’s Suit Is Time-Barred.

Leonard asserts that his cause of action is not time-

barred. It is well established that in order to ascertain

the statute of limitations applicable to a claim made pur-

suant to 42 U.S.C. § 1983, one must look to the most

appropriate state statute of limitations. Board of Regents

v. Tomanio, 446 U.S, 478, (1980); Johnson v. Railway Ea-

press Agency, 421 U.S, 454, 462, (1980); 7'aylor v. Mayone,

626 F. 2d 247 (2d Cir, 1980); Quinn v. Syracuse Model

Neighborhood Corporation, 6138 F. 2d 488, 449 (2d Cir.

1980). Therefore, the statute of limitations under 42

U.S.C. § 1983 is the three year period under New York

Civil Practice Law and Rules § 214(2),

The doctrine of fraudulent concealment which could toll

the limitations period is inapplicable to the State defen-

dants. Since Calabrese’s release was always a matter of

public record and the State never tried to conceal any

facts surrounding the release, plaintiff Leonhard was

aware of all the essential elements of his claim at the time

of the release ten years ago. Briley v. California, 564

F, 2d 849 (9th Cir. 1977); Competitive Associates, Inc. v.

Fantastic Fudge, Inc., 58 F.R.D, 121 (D.C.N.Y. 19738).

Also inapplicable to the State defendants is the “con-

tinuous wrong” argument used in claiming a tolling of

the statute of limitations. The alleged wrongdoing by

these defendants was complete upon the release of Cala-

brese. In short, the time lapse of more than ten years

between the accrual of the cause of action against the

State defendants and the commencement of the instant

suit renders plaintiff Leonhard’s suit time-barred.

Ill. The Eleventh Amendment Bars Maintenance of Peti-

tioners’ Suit.

It is well established that the Eleventh Amendment bars

a suit against an unconsenting state or its agencies.

Quern v. Jordan, 440 U.S. 332 (1979); Alabama v. Pugh,

438 U.S. 781 (1978); Edelman vy. Jordan, 415 U.S. 651

(1974). This principle was reaffirmed in Monell v. De-

partment of Social Services, 436 U.S. 658 (1978), in which

the Court avoided, at footnote 54, any holding bringing

states within the sphere of 42 U.S.C. § 1988 or overruling

the Eleventh Amendment precedents concerning states,

The named defendants are state agencies which are

merely functional expressions of the sovereign and state

officials who at the time of the release of Calabrese did

not hold those public officers. Therefore, plaintiff’s claim,

if allowed, amounts to the suing of the State directly for

damages. In such a case, the State is entitled to invoke

its sovereign immunity from suit. Ford Motor Company

v. Department of Treasury, 323 U.S. 459, 464 (1945).

Furthermore, plaintiffs never alleged consent to this suit

by the State or its agencies, as is required. Hdelman v.

Jordan, supra, at 672-673,

IV. The Petitioners Allege No Personal Involvement by the

State Defendants.

Nowhere in the complaint is there any indication that

the State defendants were personally involved in the events

complained of, or even had personal knowledge of these

incidents. There is no specific allegation that any of these

defendants participated in the removal or concealment of

the children from Leonhard. Any connection between

Calabrese’s release and the injuries alleged, assuraing that

there is such a connection, is too tenuous to support a

claim against the State defendants. See Martinez v. Cali-

fornia, 444 U.S. 277 (1980).

The plaintffs attempt to impose liability on the theory

that some of the individual defendants occupied high posi-

tions of authority must be rejected. The doctrine of

respondeat superior does not apply in a civil rights action

and may not be invoked to circumvent the “personal in-

volvement” requirement. Riezgo v. Goode, 423 U.S. 362,

375-376 (1976); Johnson v. Glick, 481 F, 2d 1028, 1033-34

(2d Cir.), cert. den, 414 U.S. 1083 (1973). It is the rule

that an official will not be held liable in a civil rights

action unless he directly participated in the alleged

wrongful conduct.

V. The Petitioners Have Failed to Adequately Present

Reasons for the Supreme Court to Issue a Writ of

Certiorari.

Rules 17 and 19 of the Rules of the Supreme Court

serve as a guide for lawyers in deciding whether to file

a petition for certiorari. They state the primary reasons

which will be considered by the Court. While the stand-

ards outlined are neither controlling nor fully indicative

of the Court’s discretion, they indicate the character of

reasons which will compel consideration of a petition.

As shown by the discussion above, there is no substantial

federal question involved in this case. Neither do the

plaintiffs allege a conflict between the decisions of two

courts. In short, the plaintiffs, in their complaint, have

not met the suggested guidelines of the Supreme Court

Rules.

Since the Eleventh Amendment provides absolute im-

munity to the New York State Board of Parole and the

New York State Department of Correctional Services,

the complaint against those two agencies was properly

dismissed. Because the doctrine of respondeat superior

does not apply to Ward and Hammock and they are in-

sulated from § 1983 liability, the complaint against them

was properly dismissed. There were proper alternative

grounds for dismissal as well, as we have shown, but these

grounds alone are dispositive.

CONCLUSION

For the above reasons, the Court should deny the

petition for certiorari.

Dated: New York, New York

February 9, 1981

Respectfully submitted,