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DOE v. FAUVER

December 29, 1997

JOHN DOE, Plaintiff,
v.
WILLIAM H. FAUVER, as Commissioner of Correction of the State of New Jersey; VICTOR D'ILIO, as Executive Director of the Bureau of Parole of the State of New Jersey; "JANE ROE," a fictitious name, as the assigned Parole Officer for "John Doe," Defendants.



The opinion of the court was delivered by: RODRIGUEZ

OPINION

 RODRIGUEZ, District Judge

 This matter is before the court on plaintiff's motion for a preliminary injunction to prevent the New Jersey Parole Board from informing his employer of his status as a parolee and the nature of his crime. After oral arguments were heard a temporary restraining order was granted preventing defendants from notifying plaintiff's employer. The parties also agreed to abide by the terms of the temporary restraining until this court determined plaintiff's motion for injunctive relief.

 I. BACKGROUND

 In accordance with a plea agreement, plaintiff was convicted in March 1992 of aggravated sexual assault for digital penetration of a minor, and was sentenced to ten years state imprisonment with parole eligibility. In May 1994, after serving approximately two years of his sentence, plaintiff was paroled subject to certain parole requirements which were subsequently modified on February 7, 1995. Pursuant to the parole modification, plaintiff was informed of the following conditions *fn1"

 
You shall not initiate, establish or maintain contact with any minor nor attempt to do so, nor shall you reside in the same residence with any minor without the express approval of your parole officer. The following circumstances are excepted from this Special Condition:
 
1. When the minor is engaged in a lawful commercial or business activity, you may engage in the lawful commercial or business activity with the minor, provided the activity takes place in an area open to the public view; or
 
2. When the minor is in the physical presence of his/her parent and/or legal guardian.

 Plaintiff's record indicates that, since his release, he has satisfactorily performed the obligations dictated by his parole status. He completed both a mandatory counseling program and the Drug Free Outpatient Rehabilitation Program, and paid his fines. In addition, on December 23, 1996, pursuant to the New Jersey Registration and Community Notification Laws ("Megan's Law") or N.J. Stat. Ann. 2C:7-1 et seq., *fn2" a New Jersey Superior Court assigned plaintiff a Tier Two Designation requiring "no notification to any school or community organization." *fn3" Plaintiff was also to "remain under and be subject to the registration requirements of Tier One under the New Jersey Registration and Community Notification Laws, N.J. Stat. Ann. 2C:7-1 et seq." *fn4" The State did not contest the terms of the order.

 As of November 1995, plaintiff has been employed full-time as a forklift operator in a warehouse. Upon obtaining employment he promptly notified his parole officer. The requirement that plaintiff or his parole officer notify the employer of his parole status is not an enumerated general or specific condition of parole. Plaintiff concedes that he never informed his employer of his conviction or of his parole status, but argues that employer notification was not a required condition of his parole. In December 1996, plaintiff's parole officer informed him that, pursuant to an internal Bureau of Parole policy, he must notify his employer of his parol status, otherwise, she was compelled to do so. *fn5" The State did not suggest that there was any evidence or suspicion indicating that plaintiff had in any manner violated his parole. Moreover, plaintiff's reporting requirements have been reduced to semi-annual reporting by the Bureau of Parole for over a year.

 Plaintiff works five days a week, eight hours per day making slightly above minimum wage and certifies that there are no children in the warehouse where he works. He pays child support and his wife is disabled and unable to work. He believes he will lose his job if his employer is notified of the nature of his offense and of his parole status, and maintains that this in turn will impede his ability to find replacement work. He further argues that the notification requirement "was not imposed on the basis of any individualized determination that notifying the employer of the offense was needed in order to protect the public..." (Ptf.'s Complaint P 23).

 Plaintiff's Complaint contains five causes of action including claims under 42 U.S.C. § 1983 involving questions of procedural and substantive due process. Defendants contend that plaintiff has failed to demonstrate that his motion for a preliminary injunction is warranted, and assert that the temporary restraining order frustrates their ability to meet the mandate of the Bureau's internal policy and interferes with their ability to monitor compliance with the special condition allowing the plaintiff to work with minors. They conclude that the Bureau is not "comfortable relying only on plaintiff's word that no children under 18 are present at the work place." (Dfts.' Br. at 6).

 II. STANDARD

 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 ...


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