Moore v. Newton

220 F.Supp.3d 275

Kenneth E. MOORE, Plaintiff,

v.Dana NEWTON, Defendant.

14–CV–6473 (MKB) (CLP)

United States District Court, E.D. New York.

Signed December 1, 2016

Kenneth E. Moore, Laurelton, NY, pro se.

Neil Shevlin, Steven N. Schulman, Office of the Attorney General, New York, NY, for Defendant.

MEMORANDUM & ORDER

MARGO K. BRODIE, United States District Judge:

On August 4, 2014, Plaintiff Kenneth E. Moore filed a petition for a writ of habeas corpus in the Western District of New York, seeking immediate release from Rikers Island and alleging that he continued to be held in custody after charges against him were dismissed. (Pet. for Writ of Habeas Corpus, No. 14–CV–5524 (E.D.N.Y. Aug. 4, 2014), Docket Entry No. 1.) On August 27, 2014, the Petition was transferred to the Eastern District of New York, where the Honorable John Gleeson issued an order to show cause regarding Plaintiff's continued detention. (Order to Show Cause, No. 14–CV–5524, Docket Entry No. 5.) Respondents informed Judge Gleeson that Plaintiff had been released from Rikers Island, and they sought to dismiss the Petition as moot. (Resp. Letter re Moore Pet., No. 14–CV–5524, Docket Entry No. 7.) Plaintiff opposed dismissal and requested that the Petition be converted into a complaint against Parole Officer Dana Newton and Police Officer Juner Cevallos pursuant to 42 U.S.C. § 1983. (Compl., Docket Entry No. 1.)¹ On November 5, 2014, Judge Gleeson granted Plaintiff's request to convert the action, and Plaintiff, proceeding pro se , commenced the above-captioned civil case against Defendants Newton and Cevallos² for false arrest, malicious prosecution, false imprisonment, abuse of process and cruel and unusual punishment in violation of Plaintiff's Fourth, Fifth, Eighth and Fourteenth Amendment rights. (Compl., Causes of Action ¶¶ 1–9.)

On January 20, 2016, Newton filed a motion to dismiss Plaintiff's claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Def. Notice of Mot. to Dismiss, Docket Entry No. 49; Mem. in Supp. of Def. Mot. ("Def. Mem."), Docket Entry No. 52.) Judge Gleeson referred Defendant's motion to dismiss to Magistrate Judge Cheryl Pollak for a report and recommendation.³ (Order dated Feb. 3, 2016.) By report and recommendation dated September 7, 2016 (the "R & R"), Judge Pollak recommended that the Court grant Defendant's motion to dismiss all of Plaintiff's claims except the claim for cruel and unusual punishment. (R & R 3, Docket Entry No. 67.) Judge Pollak further recommended that the Court deny Plaintiff leave to amend the Complaint. (Id. at 51–55.) On October 14, 2016, Defendant timely filed objections to the R & R.⁴ (Def. Objs. to Magistrate Judge's R & R ("Def. Objs."), Docket Entry No. 69.) Plaintiff did not file objections to the R & R. For the reasons set forth below, the Court adopts the R & R in its entirety as to Defendant's motion to dismiss but grants Plaintiff leave to amend the Complaint to add Eighth and Fourteenth Amendment claims against three new defendants.

I. Background

a. Factual background

The following facts are taken from the Complaint and are accepted as true for the purpose of deciding the motion.⁵ Plaintiff was released from Queensboro Correctional Facility on October 1, 2013, after serving six months for violating the terms of his parole. (Compl. ¶ 1.) Plaintiff was released to a period of post-release supervision that was to expire on July 31, 2014.

(Id. ) The terms of Plaintiff's supervised release required that he report to Parole Officer Newton on a bi-weekly basis. (Id. ¶ 6.) On April 12, 2014, Plaintiff was arrested by Officer Cevallos of the New York City Police Department and charged with criminal possession of a controlled substance. (Id. ¶ 2.) Plaintiff denies having been in possession of a controlled substance. (Id. ¶ 3.) On April 14, 2014, Plaintiff was arraigned and released on his own recognizance. (Id. ¶ 4.) That day, Plaintiff reported his arrest to the parole office and, as a result, began meeting with Newton on a weekly, rather than bi-weekly, basis. (Id. ¶ 5.)

On April 21, 2014, Plaintiff met with Newton, who advised him to voluntarily enter a forty-five-day residential substance abuse treatment program at Edgecombe Correctional Facility. (Id. ¶ 7.) Plaintiff refused to voluntarily enter the program, stating that he was innocent of the criminal charge and did not have a substance abuse problem. (Id. ) According to Plaintiff, Newton told him shortly thereafter that because of his opposition to entering the treatment facility, Newton would be investigating the circumstances surrounding his arrest. (Id. ¶ 8.) On June 16, 2014, Newton arrested Plaintiff and charged him with violating the terms of his parole by possessing a controlled substance, based on his arrest of April 12, 2014. (Id. ¶ 9.) Plaintiff was transported to Rikers Island. (Id. ¶ 21.)

On June 26, 2014, Hearing Officer Sol Chamorro conducted a preliminary parole revocation hearing at Rikers Island. (Id. ¶ 11; Prelim. Hr'g Tr. at 1.) Newton represented the New York Department of Corrections and Community Supervision ("DOCCS"), and Plaintiff was represented by an attorney from the Legal Aid Society. (Prelim. Hr'g Tr. at 1.) At the conclusion of the preliminary hearing, the hearing officer found probable cause that Plaintiff had been in possession of a controlled substance on April 12, 2014. (Id. at 29–30.) The hearing officer informed Plaintiff that he would receive a final hearing in "about eight business days." (Id. at 29.) Plaintiff raised a concern that the final hearing would be adjourned until and beyond his upcoming maximum expiration ("ME") date of July 31, 2014, and his attorney informed him, on the record, that "[i]f that happens you can file a writ." (Id. at 30–31.)

On July 9, 2014, Plaintiff attended an arraignment hearing before Administrative Law Judge Casey (the "ALJ"). (Compl. ¶ 14; Arraignment Tr. at 2.) At that hearing, the ALJ noted that Plaintiff was deemed delinquent as of his April 12, 2014 arrest.⁶ (Arraignment Tr. at 4.) The ALJ informed Plaintiff that his final hearing would take place on July 23, 2014, and that if DOCCS was not prepared to proceed on July 23, the ALJ would "order the warrant vacated." (Id. at 13.) On July 23, 2014, Plaintiff appeared for his final parole revocation hearing before the ALJ. (Compl. ¶ 15; Final Hr'g Tr. at 1.) Plaintiff was represented by an attorney from the Legal Aid Society, and DOCCS was represented by Garfield Bolton, a parole revocation specialist. (Final Hr'g Tr. at 1.) Bolton told the ALJ that his supervisor, Edward Delrio, had directed him to "put in a CDME," or a "cancel delinquency and close by Maximum Expiration," for Plaintiff's case. (Id. at 2, 7.) Citing the impending cancellation of Plaintiff's delinquency, the ALJ adjourned Plaintiff's final parole revocation hearing for the "expeditious" submission and processing of the dismissal, which Bolton stated would occur the following day. (Id. at 5, 8.) The ALJ assured Plaintiff that he would not permit further adjournments in the case, that Plaintiff would be released by his ME date of July 31, 2014 and that he would "ask Mr. Delrio to personally oversee it." (Id. at 11.) After Plaintiff left the hearing room, the ALJ, Bolton and Plaintiff's counsel discussed the urgency of releasing Plaintiff before his ME date.⁷ (Id. at 12.)

Instead of cancelling Plaintiff's delinquency, DOCCS reassessed its position and decided to maintain the charge against Plaintiff. (See Compl. ¶ 20.) Plaintiff was not released on July 31, 2014. (Id. ¶ 16.) After July 31, 2014, Plaintiff began an "all-out effort" to be released. (Id. ¶ 17.) Plaintiff and his father called Newton and other unnamed employees of DOCCS, "including [Newton's] supervisor." (Id. ) Plaintiff also wrote letters to the "chairwom[a]n of the Division," and Plaintiff's father called local representatives and attorneys. (Id. ) Plaintiff subsequently filed the above-referenced petition for a writ of habeas corpus in the Western District of New York, arguing that he was being unconstitutionally detained beyond his ME date. (Id. ¶ 18.)

On September 5, 2014, Plaintiff was produced for a final parole revocation hearing. (Id. ¶ 20.) At that hearing, Bolton indicated that he was not prepared to proceed with the case against Plaintiff.⁸ (See generally Decision Notice.) The ALJ refused to grant further adjournments and dismissed the charge against Plaintiff, noting that DOCCS had not provided discovery and Bolton had not been able to determine whether the arresting officer could testify. (Id. ) Plaintiff was released from Rikers Island four days later, on September 9, 2014. (Compl. ¶ 21.) On October 22, 2014, the criminal charge against Plaintiff for possession of a controlled substance was dismissed. (Id. ¶ 22.)

b. Judge Pollak's recommendations

Judge Pollak recommended that the Court grant in part and deny in part Defendant's motion to dismiss. (R & R 3.) Judge Pollak first considered Plaintiff's claims for false imprisonment, malicious prosecution and abuse of process, based on Defendant's decision to arrest and prosecute Plaintiff for his parole violation. (Id. at 19–34.) Finding that Newton's decision to arrest and prosecute Plaintiff was supported by probable cause, Judge Pollak concluded that Plaintiff had failed to state a claim for false imprisonment, malicious prosecution or abuse of process. (Id. )

Judge Pollak next examined Plaintiff's claims that by failing to intervene to secure Plaintiff's release from Rikers Island by his ME date, Defendant violated his due process rights in violation of the Fourteenth Amendment and subjected him to cruel and unusual punishment in violation of the Eighth Amendment. (Id. at 35–45.) Although Defendant argued that she was not personally involved in Plaintiff's alleged constitutional violations, Judge Pollak determined that "[i]f Officer Newton had a 'realistic opportunity to intervene' once she became aware that [P]...