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C.P.M. v. D'ILIO

February 21, 1996

C.P.M., Plaintiff,
VICTOR D'ILIO, individually and in his official capacity as Executive Director of the Bureau of Parole, et al., Defendants.

The opinion of the court was delivered by: RODRIGUEZ

 RODRIGUEZ, District Judge

 This matter is before the court on plaintiff's motion for preliminary injunction. Plaintiff a parolee, seeks relief from a decision by the State of New Jersey's Bureau of Parole determining that it must notify plaintiff's employer of his parole status and the nature of his conviction. The court held oral argument on the motion on November 15 and December 15, 1995. During the December 15 argument, the court requested additional briefing by the State and reserved its decision. Having received and considered the supplemental briefs, the court grants plaintiff's request for injunctive relief for the reasons expressed below.


 In 1981, a jury found plaintiff guilty of kidnaping, in violation of N. J. Stat. § 2C:13-1(b)(2), criminal restraint, in violation of N. J. Stat. Ann § 2C:13-2(a), aggravated assault, in violation of N. J. Stat. Ann. § 2C:12-1(b)(1), and possession of a weapon for an unlawful purpose, in violation of N. J. Stat. Ann. § 2C:39-4. At the time of the conviction, plaintiff was age 22 and had an extensive history of arrests as both an adult and a juvenile for assault and battery, breaking and entering, possession of drugs, probation violations, and other similar violations of the law. At the time of his sentencing, the probation officer's report stated that plaintiff's prior record and prior unsuccessful probationary periods, combined with the seriousness of the new offense, made it unlikely that the defendant would "successfully complete any probationary supervision" (Probation report).

 The 1981 probation report summarized the current offense as an "altercation" which began on "Saturday evening at approximately 11:30 P.M., [when] the defendant, [C.P.M.], was attacked by several individuals in the rear parking lot at [a New Jersey hospital] while he was waiting for his wife. Four white males broke the windows in [C.P.M.'s] car, tore off the windshield wipers, and placed dents in the vehicle. [C.P.M.] was then struck in the arm and shoulder with a tire-iron. As a result of the beating that [C.P.M.] took, he approached the victim, [M.P.], in the parking lot [of a shopping mall three days later]. [C.P.M.] was accompanied by co-defendant [L.S.]. [L.S.] then threatened the victim, [M.P.], that he would be beaten up or stabbed if he did not get into the car belonging to [C.P.M.]." This, apparently, was the kidnaping. Sometime shortly thereafter, the "victim" climbed out of the car window and began running down the street. L.S. ran after M.P. and stabbed him in the back. L.S. and C.P.M. then drove away, leaving M.P. M.P. survived the stabbing. There is evidence that the altercation involved the sale of marijuana.

 With his parents, C.P.M. voluntarily came to police headquarters and surrendered. At no point did M.P. contend that C.P.M. stabbed him. Plaintiff was sentenced to forty years with a ten year minimum on the kidnaping count. The sentences on the other counts either merged with count I or were served concurrently.

 According to the probation report, C.P.M. admitted to "a history of drug abuse which included the use of marijuana, hashish, heroin, stimulants, and depressants." In 1981, C.P.M. claimed to be using only marijuana and hashish, having undergone drug treatment from 1977 to 1979.

 Plaintiff was paroled in 1991 after serving ten years of his sentence. A 1990 pre-parole/community release evaluation found him to be a "fair" parole risk. The report stated that C.P.M.'s "prison adjustment was initially poor," noting disciplinary charges. However, the report found that, by 1990, C.P.M. was not a risk for suicide, assault, or escape. The report recommended intensive supervision, urinalysis, counseling, and voc/ed aid.

 Plaintiff argues in his affidavit and verification of complaint that the "Assistant Prosecutor who prosecuted plaintiff urged the Parole Board to grant plaintiff parole based on substantial evidence of rehabilitation." The Parole Board's 1991 certificate of parole for C.P.M. provides a list of conditions of parole, including that C.P.M. participate in "random urine monitoring...until discharge is approved" and "participate in a Narcotics Anonymous Program." No condition required him to notify an employer of the conviction or his status as a parolee.

 Plaintiff began working for a mental health services organization in early 1992. Plaintiff states that the parole board has known of his employment at the facility "since 1992." The State asserts that "it is unclear when C.P.M. notified his parole officer of his current employment, [but that] Bureau of Parole officials were aware of [C.P.M.'s] current employment by February 28, 1994.

 On November 14, 1995, the Bureau of Parole notified C.P.M. that contact would be made with his current employer advising the employer of CPM's parole status and his convictions. C.P.M., pro se immediately filed a complaint seeking a T.R.O. and/or preliminary injunction. Plaintiff's complaint seeks both injunctive relief and damages, and asserts constitutional claims under the Fourteenth Amendment and the Eighth Amendment.

 During oral argument, the State conceded that it has no suspicion or evidence that C.P.M. has in any way violated the conditions of his parole. Instead, the State indicated that recent incidents by other parolees had inspired them to examine all parolees' files. In doing so, they discovered that plaintiff's employer had never been contacted, and determined that they needed to comply with their internal standards by notifying the employer of C.P.M.'s parolee status. The State agreed to refrain from contacting C.P.M.'s employer until such time as the parties had briefed the issues and the court determined plaintiff's motion for injunctive relief.


 The party seeking injunctive relief must demonstrate: 1) the likelihood of ultimate success on the merits; 2) probability of irreparable harm in the absence of injunctive relief; 3) balance of hardships in favor of granting the requested relief, and 4) public interest in favor of granting the requested relief. Alessi v. Pennsylvania, 893 F.2d 1444, 1447 (3d Cir. 1990).


 A. Statutes and Internal Parole Standards

 New Jersey law provides that "each parolee shall at all times remain in the legal custody of the Commissioner of Corrections,...[and] shall remain under the supervision of the Bureau of Parole of the Department of Corrections in accordance with the rules of the board." N. J. Stat. Ann. § 30:4-123.59.a. Subsection b further provides that each parolee must "abide by specific conditions of parole established by the appropriate board panel which shall be enumerated in writing in a certificate of parole and shall be given to the parolee upon release." N. J. Stat. Ann. § 30:4-123.59.b. Notably, subsection e provides that the "assigned parole officer shall provide assistance to the parolee in obtaining employment, education or vocational training..." N. J. Stat. Ann. § 30:4-123.59.e. Although, as noted, no condition on plaintiff's certificate of parole required that the plaintiff notify his employer of his parolee status, the State asserts that "such notification is required pursuant to section 802.5 of the Bureau of Parole's Standards." This notification provision apparently dates back to 1973, when it was contained in a "Procedural Memorandum # 8" dated June 28, 1973. The 1973 provision states, in part:

3. Verification of employment - certification of employment by a responsible person at the place of employment or through a reliable and authentic instrument or form used in an employee-employer relationship. When doubt exists as to the validity of the form used for verification, an employment visit is required. ...
In the following instances employers will be notified preferably by the parolee as soon as possible, but no later than thirty days ...

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