Maldonado v. Fischer et al, No. 1:2011cv01091 - Document 86 (W.D.N.Y. 2019)
Court Description: ORDER granting in part and denying in part 78 Motion for Summary Judgment; denying 80 Motion for Partial Summary Judgment. Signed by Hon. H. Kenneth Schroeder Jr. on 11/06/2019. (KER)(Mailed to plaintiff)
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Maldonado v. Fischer et al Doc. 86 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK ANGEL MALDONADO, 03-R-2519, Plaintiff, -v- 11-CV-1091Sr SUSANNA MATTINGLY Parole Officer, Defendant. DECISION AND ORDER Pursuant to 28 U.S.C. § 636(c), the parties have consented to the assignment of this case to the undersigned to conduct all proceedings in this case, including the entry of final judgment. Dkt. #15. Plaintiff’s third amended complaint, prepared pro se, pursuant to 42 U.S.C. § 1983, alleges that the imposition of sex offender conditions by Parole Officer Susanna Mattingly during his release on parole from February 24, 2010 through March 16, 2010 and September of 2010 through May of 2011 constitute a violation of the ex post facto clause of the United States Constitution; 1 a violation of plaintiff’s constitutional right to substantive and procedural due process; and a violation of plaintiff’s right to free association. Dkt. #52. Plaintiff seeks monetary damages. Dkt. #52, p.19. 1 This claim was dismissed with prejudice by Order entered September 24, 2012. Dkt. #5. Dockets.Justia.com Currently before the Court is defendant Susanna Mattingly’s motion for summary judgment (Dkt. #78), and plaintiff’s motion for summary judgment. Dkt. #80. For the following reasons, defendant’s motion is granted in part and plaintiff’s motion is denied. FACTS Plaintiff pled guilty to a misdemeanor charge of sexual misconduct pursuant to N.Y. Penal Law § 130.20(2), in satisfaction of a charge of rape, third degree, and was sentenced to three years of probation. Dkt. #25, p.16. Plaintiff’s probation was discharged on March 16, 1999. Dkt. #1, ¶ 8. Plaintif f asserts that the charges arose from his consensual sexual relationship with a girlfriend when he was 22 and she was 16. Dkt. #80, pp.15 & 23. In 2002, the New York State Legislature amended New York’s Penal Law to include a conviction under Penal Law § 130.20 within the definition of a sex offense for purposes of New York’s Sex Offender Registration Act. 2002 Sess. Law News of N.Y. Ch. 11 (S. 6263-A) (McKinney’s). On April 25, 2003, following his guilty plea to a scheme to defraud, first degree; three counts of grand larceny, third degree; attempted petit larceny; tampering with physical evidence; compounding a crime; coercion, second degree; bribing a witness; tampering with a witness, fourth degree; three counts of criminal impersonation, second degree; harassment, second degree; and three counts of -2- aggravated harassment in the second degree, in satisfaction of Indictment No. 2340/99 and bail jumping, second degree, in satisfaction of Indictment No. 891/01, plaintiff was sentenced to an aggregate indeterminate term of imprisonment of 5 to 15 years. Dkt. #80-1, p.3. Plaintiff had portrayed himself on the internet as a police detective with the New York City Police Department to meet women from whom he obtained significant amounts of money. Dkt. #45, p.8. Plaintiff was released from custody in May of 2009. By letter dated October 22, 2009, Dominic A. Dispenza, LCSW-R, completed a sexual offender evaluation and risk assessment of plaintiff and determined that plaintiff displayed symptoms of an antisocial personality disorder. He was deceitful, took no responsibility for his behaviors, showed no remorse, and completely lacked empathy. Furthermore, he has demonstrated impulsivity, aggressiveness, and a reckless disregard for the safety of others and himself. 2. Mr. Maldonado claimed that he does not have a sex offense problem and denied the possibility of relapse. He denied he committed a sexual offense and claimed to this evaluator that he had married his victim in Puerto Rico prior to his conviction and she had their child when she was 17 years old. Mr. Maldonado is reported to have told his probation officer that he did not marry this victim until after he had been convicted of his offense against her. *** 4. Mr. Maldonado demonstrated that he is not amenable to sexual offender treatment. He displayed evasiveness, a superficial manner he imposition of the no contact condition between himself and Valerie Cole. In contrast, it is well established that a parent’s interest in maintaining a relationship with his or her child is a fundamental liberty interest protected by substantive due process. Doe v. Lima, 270 F. Supp.3d 684, 702 (S.D.N.Y. 2017), citing United States v. Myers, 426 F.3d 117, 125 (2d Cir. 2005), aff’d, Doe v. Cappiello, 758 Fed app’x 181 (2d Cir. 2019). Restrictions upon such a relationship m ust be narrowly tailored to serve a compelling government interest. Myers, 426 F.3d at 126. Thus, “parole conditions that bar a parent from all contract with a child or condition such contact on a parole officer’s approval implicate a fundamental liberty interest in a familial relationship, are subject to strict scrutiny, require individualized justification based on the threat posed by the defendant to the child, and require that the releasee be given an opportunity to be heard before their imposition.” Lima, 270 F. Supp.3d at 703. Absent an individualized inquiry into whether an individual’s sexual proclivities pose a threat to his child, the imposition of a harsh condition of supervised release that either prohibits interaction with his children or makes such interaction subject to supervision by a person approved by the probation officer violates the individual’s substantive due process rights. United States v. McGeoch, 546 Fed. App’x 44, 49 (2d -23- Cir. 2013). Therefore, to the extent that plaintiff can establish that he demonstrated “a full commitment to the responsibilities of parenthood,” and “played an active role in the life of his son,” prior to his incarceration, defendant is required to establish that the condition was narrowly tailored to protect plaintiff’s children. Myers, 426 F.3d at 128. Accordingly, defendant’s motion for summary judgment is denied with respect to plaintiff’s allegation that the special conditions of parole prevented him from contact with his children. To the extent that plaintiff complains that his parole conditions prevented him from associating with family members with young children, however, qualified immunity is granted because the contours of any such right remain unclear. See Yunus, 2019 WL 168544, at *18-19 (finding no fundamental right to contact with extended family members). Furthermore, the notification provision is a reasonable restriction on plaintiff’s First Amendment rights. See United States v. Reeves, 591 F.3d 77, 82 (2d Cir. 2010) (“We have no doubt that in the appropriate circumstance a court . . . could require a defendant to notify third-parties of risks arising from the defendant’s criminal record, personal history, or characteristics.”); Muhammad v. Evans, No. 11-CV-2113, 2014 WL 4232496, at *10 (S.D.N.Y. Aug. 15, 2014) (upholding condition requiring probationer to notify his probation officer of intimate relationships). First Amendment Plaintiff challenges the parole restrictions impacting his ability to enjoy public spaces, including church. Dkt. #52, p.16 & Dkt. #80, ¶ 19 & p.33. Plaintif f further -24- argues that the ban on computer usage prevents him from pursuing his career as a musician and that the ban on premium cable prevents him from enjoying sports such as boxing. Dkt. #80, p.27. “It is well established that prisoners have a constitutional right to participate in congregate religious services.” Salahuddin v. Coughlin, 993 F.2d 306, 308 (2d Cir. 1993). “The same goes for parolees, who are effectively still prisoners vis-á-vis their constitutional rights.” Muhammad v. Jenkins, No. 12 Civ. 8525, 2013 WL 5225573, at *10 (S.D.N.Y. Sept. 13, 2013). “Since Salahuddin, then, the right to participate in congregate religious services has been settled law, and a parole officer . . . is charged with knowledge thereof” and cannot, therefore, reasonably believe that it was in his power to bar plaintiff from participating in communal worship altogether.” Id.; See United States v. Hernandez, 209 F. Supp.3d 542, 546 (E.D.N.Y. 2016) (although the First Amendment rights of paroled sex offenders are circumscribed, and conditions preventing defendants convicted of sex offenses from associating with minors have been upheld, no compelling government interest justifies prohibiting attending religious services where a minor is present). Thus, defendant is not entitled to qualified immunity with respect to plaintiff’s claim that the conditions of parole prevented him from attending communal worship. In Pakingham v. North Carolina, the Supreme Court held that registered sex offenders cannot be routinely or categorically barred from social media. __ U.S. __, 137 S. Ct. 1730, 1737 (2017) (“to foreclose access to social media altogether is to -25- prevent the user from engaging in the legitimate exercise of First Amendment rights.”); See Yunus, 2019 WL 168544, at *16 (“Under Packingham, blanket limitations on an individual’s ability to access social media will receive intermediate scrutiny, even when imposed as conditions of parole.”). Even before Packingham, the Court of Appeals for the Second Circuit rejected total bans on internet access as conditions of supervised release. United States v. Eaglin, 913 F.3d 88, 96 (2d Cir. 2019), citing United States v. Sofsky, 287 F.3d 122, 126 (2d Cir. 2002), and United States v. Peterson, 248 F.3d 79, 82-83 (2d Cir. 2001). However, these cases involve the statutory standard imposed on federal conditions of supervised release. See Yunis, 2019 WL 168544, at *23. In light of this different legal standard, these cases “are not controlling authority as to the constitutional analysis of state parole conditions.” Id. Thus, at least prior to Packingham, the constitutional right of individuals on probation to access social media or commercial internet sites was not clearly established. Ennis v. Annucci, 19-CV-501, 2019 WL 2743531, at *8 (N.D.N.Y. July 1, 2019). As to the condition relating to adult pornography and other sexually explicit material, including the limitation on premium cable channels, the Court of Appeals for the Second Circuit has determined that the conditional liberty to which offenders on supervised release are subject may include a prohibition against possession of pornographic matter. United States v. Savastio, 777 Fed. App’x 4, 7 (2d Cir. 2019) (collecting cases). -26- Damages Defendant argues that plaintiff would only be entitled to nominal damages because, pursuant to 42 U.S.C. § 1997e(e), he has not alleg ed physical injury. Dkt. #78-1, p.17. Plaintiff responds that this statue does not apply because his damages result from his designation as a DSO and the imposition of special conditions of parole. Dkt. #80, p.43. Under the Prisoner Litigation Reform Act of 1995 (“PLRA”), “[n]o Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury or the commission of a sexual act (as defined in section 2246 of Title 18). 42 U.S.C. § 1997e(e). “As used in this section, the term ‘prisoner’ means any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program.” 42 U.S.C. § 1997e(h). In the instant case, however, plaintiff is not seeking damages for injury suffered while confined in a jail, prison or other correctional facility; he is seeking damages for constitutional injury caused by the imposition of conditions of release on parole. See, e.g., Greig v. Goord, 169 F.3d 165, 167 (2d Cir. 1999) (district court erred in classifying parolee as a prisoner under the PLRA). Accordingly, the limitations of 42 U.S.C. § 1997e(e) are not applicable. -27- CONCLUSION For the reasons set forth above, defendant’s motion for summary judgment (Dkt. #78), is granted except with respect to plaintiff’s claim that the special conditions of parole prevented him from contact with his children between February 24, 2010 and March 16, 2010 and his claim that he was prevented from attending religious services between February 24, 2010 and March 16, 2010, and plaintif f’s motion for summary judgment (Dkt. #80), is denied. SO ORDERED. DATED: Buffalo, New York November 6, 2019 -28-
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