Francis v. Fiacco

BRYAN FRANCIS, Plaintiff, v. KIMBERLY FIACCO, also known as Kimberly Davidson;RICHARD DESIMONE; DIANE HOLFORD;and KRISTINA LENNON, Defendants.

9:15-CV-901 (MAD/ATB)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

March 16, 2018

APPEARANCES:

TABNER, RYAN & KENIRY, LLP

18 Corporate Woods Boulevard

Albany, New York 12211-2605

Attorneys for Plaintiff

OFFICE OF THE NEW YORK

STATE ATTORNEY GENERAL

The Capitol

Albany, New York 12224

Attorneys for Defendants

OF COUNSEL:

WILLIAM RYAN, JR., ESQ.

BRIAN M. QUINN, ESQ.

LOUIS JIM, AAG

Mae A. D'Agostino, U.S. District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiff commenced this action on January 13, 2014, alleging violations of the Fourth, Eighth, and Fourteen Amendment, arising from the lodging of a New York State detainer in May of 2007 while Plaintiff was being held in federal custody and the eventual refusal to lift the detainer in July 2010. See Dkt. No. 1.

Currently before the Court is Defendants' motion for summary judgment. See Dkt. No. 62.

II. BACKGROUND

On September 8, 2006, the Honorable Penny M. Wolfgang, Justice of the New York State Supreme Court, Erie County, sentenced Plaintiff to a term of incarceration of one and one-half to three years for the crime of Attempted Criminal Possession of Marihuana in the Second Degree. See Dkt. No. 65-1 at ¶ 1. At the time of sentencing through November 2006, Plaintiff was in the custody of the custody of the New York State Department of Corrections and Community Supervision ("DOCCS").¹ See id. at ¶ 2. On November 20, 2006, the Honorable William M. Skretny, United States District Judge, Western District of New York, sentenced Plaintiff to a term of 120 months of imprisonment and a 5-year period of supervised release for the crime of Possession of a Firearm in Furtherance of a Drug Trafficking Crime. See id. at ¶ 3. The federal court then remanded Plaintiff to the custody of the United States Marshal for delivery to the Federal Bureau of Prisons. See id. at ¶ 4.

Defendant Davidson sent a letter, dated May 4, 2007, to Federal Correctional Institution ("FCI") McKean stating, among other things, that "[e]nclosed is a certified copy of the consecutive New York State commitment of subject. Please lodge it as a detainer." Id. at ¶ 5. Records from DOCCS appear to contain a handwritten note from Defendant Davidson, dated May 4, 2007, showing that Defendants Davidson and Holford discussed Plaintiff's sentence on that date. See id. at ¶ 6. At some point around May 2007, a counselor at FCI McKean showed Plaintiff the detainer. See id. at ¶ 7.

On or about July 9, 2009, Plaintiff received a letter from Oliver C. Young, an attorney with the New York State Supreme Court, stating as follows:

Your recent letter to the Honorable Penny M. Wolfgang concerning [People v. Francis] was forwarded to this office for response. You are inquiring about a detainer that may have been served upon you.

From a review of your Sentence & Commitment order, it appears that the court directed that your state sentence was to run concurrent with your federal sentence. If you believe that the detainer was erroneously served and you are placed in the custody of the New York State authorities upon your release from the federal institution, you will have the opportunity to challenge your detention in the appropriate court at that time. The court is not able to assist you presently in the absence of a formal motion or petition seeking specific relief.

Dkt. No. 65-1 at ¶ 8.

Thereafter, in a letter dated June 22, 2010, Plaintiff asked Defendant Davidson to lift the detainer. See id. at ¶ 9. On July 1, 2010, Defendant Lennon responded to Plaintiff's letter as follows: "The Penal Law does not allow a sentence to run concurrently with a term of imprisonment that has not yet been imposed. Your state sentence will not commence until you are received by the New York State Department of Correctional Services; please see Penal Law § 70.30(1)." Id. at ¶ 10. Plaintiff acknowledges that he received this July 1, 2010 letter. See id. at ¶ 11. Although Plaintiff's June 22, 2010 letter was addressed to Defendant Davidson, Defendant Lennon was the one who responded because "interstate" cases were Defendant Lennon's responsibility at that time. See id. at ¶ 14.

On August 16, 2012, Plaintiff moved to set aside his New York State sentence under New York Criminal Procedure Law § 440.20. See Dkt. No. 65-1 at ¶ 15. On January 9, 2013, Judge Wolfgang denied the motion, stating that "the relief the defendant is seeking is not available pursuant to CPL § 440.20. His remedy is to seek relief against DOCCS pursuant to Article 70 or Article 78 of the Civil Practice Law and Rules if is he is returned to the state on the detainer andis not immediately released." Id. at ¶ 16. On May 28, 2013, Mr. Young, a state court attorney, advised Plaintiff as follows:

[I]f you believe that the correctional facility has miscalculated your sentence and you are being held illegally, you may wish to commence an action pursuant to [CPLR Articles 70 or 78] challenging your detention. File your petition with the office of the chief clerk of the county where you are being held.

Id. at ¶ 17. Mr. Young also provided Plaintiff with the address to the Chief Clerk of Wyoming County because Plaintiff was being held in the Wyoming County Correctional Facility. See id. at ¶ 18. Although Plaintiff claims that he filed an Article 78 petition, a review of the New York State Uniformed Court System's eCourts WebCivil Supreme Court Case Search fails to reveal any Article 78 petitions in which Plaintiff was the petitioner. See id. at ¶ 19.²

Plaintiff contends that he should have been released from federal custody on September 28, 2012, but that he remained in federal custody due to the detainer. See id. at ¶ 20. Documents from the United States Department of Justice ("DOJ") show that the Federal Bureau of Prisons ("BOP") released Plaintiff into New York State's custody on March 28, 2013. See id. at ¶ 21. The BOP's Release Authorization identified the Erie County Sheriff's Department as the agency that was taking Plaintiff into custody. See id. at ¶ 22. On April 15, 2013, Plaintiff was returned to a DOCCS-managed facility. See id. at ¶ 24. Upon Plaintiff entry into DOCCS' custody, his maximum expiration date was calculated to be November 26, 2015, and his conditional release date was calculated to be November 26, 2014. See id. at ¶ 25.

On July 18, 2013, with respect to the original New York State indictment, and upon the consent of Claudia S. Schultz, Esq., who served as Plaintiff's counsel at the time, and the ErieCounty District Attorney's Office, Judge Wolfgang "imposed" a "sentence nunc pro tunc to November 29, 2006." Dkt. No. 65-1 at ¶ 27; Dkt. No. 62-7 at 119-124. During this proceeding, Judge Wolfgang stated, among other things, as follows: "On September 8th, 2006, the Court sentenced you to a term of one and one half to three years to run concurrently with a federal sentence you were about to receive. However, by operation of law, you did not receive the credit the Court intended." Dkt. No. 65-1 at ¶ 29; Dkt. No. 62-7 at 123. As a result of this proceeding, Plaintiff was released from DOCCS' custody on July 23, 2013. See Dkt. No. 65-1 at ¶ 35.

Plaintiff commenced this action on January 13, 2014, alleging a Fourth Amendment false arrest claim, an Eighth Amendment deliberate indifference claim, and a Fourteenth Amendment procedural due process claim. See Dkt. No. 1. Plaintiff amended his complaint on February 10, 2017, to assert his claims against individuals who were previously unidentified. See Dkt. No. 46.

In their motion for summary judgment, Defendant first argue that because Plaintiff learned of the detainer in May 2007 and that Defendants would not lift the detainer in July 2010, all claims associated with the lodging of the detainer and the refusal to lift it are untimely. See Dkt. No. 62-16 at 9. Further, Defendants contend that, even assuming the claims are timely, the undisputed material facts establish that Defendants did not violate Plaintiff's rights. See id. at 9-10. Finally, Defendants argue that even if the Court finds that Plaintiff's constitutional rights were violated, they are entitled to qualified immunity because it was not and is not clearly established that commencing Plaintiff's state sentence upon his entry into DOCCS' custody violated his rights. See id. at 10.

III. DISCUSSION

A. Summary Judgment Standard

A court may grant a motion for summary judgment only if it determines that there is no genuine issue of material fact to be tried and that the facts as to which there is no such issue warrant judgment for the movant as a matter of law. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994) (citations omitted). When analyzing a summary judgment motion, the court "cannot try issues of fact; it can only determine whether there are issues to be tried." Id. at 36-37 (quotation and other citation omitted). Moreover, it is well-settled that a party opposing a motion for summary judgment may not simply rely on the assertions in its pleading. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quoting Fed. R. Civ. P. 56(c), (e)).

In assessing the record to determine whether any such issues of material fact exist, the court is required to resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party. See Chambers, 43 F.3d at 36 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)) (other citations omitted). Where the non-movant either does not respond to the motion or fails to dispute the movant's statement of material facts, the court must be satisfied that the citations to evidence in the record support the movant's assertions. See Giannullo v. City of New York, 322 F.3d 139, 143 n.5 (2d Cir. 2003) (holding that not verifying in the record the assertions in the motion for summary judgment "would derogate the truth-finding functions of the...