# Opposition — Leonhard v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1221%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition - **Published:** January 1, 1981 - **Citation:** 451 U.S. 908 ## Text No. 80-1260 IN THE Supreme Court of the United States OCTOBER TERM, 1980 ‘4 v 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) ..... oo oH on 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. A. v 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? 2 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 7? 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. *» 4 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- 5 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 6 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. 7 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. 7% 8 CONCLUSION For the above reasons, the Court should deny the petition for certiorari. Dated: New York, New York February 9, 1981 Respectfully submitted, Rosert ABRAMS Attorney General of the State of New York Attorney for New York State Respondents Suimiey ApELsON SIEGEL Solictor General . Geraup J. Ryan Assistant Attorney General Of Counsel --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1221%3A4. Public record. Not legal advice.