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FRIEDLAND v. FAUVER

March 31, 1998

ROBERT FRIEDLAND, Plaintiff,
v.
WILLIAM FAUVER, et al., Defendants.



The opinion of the court was delivered by: COOPER

OPINION

 COOPER, District Judge

 Plaintiff Robert Friedland brought this action pursuant to 42 U.S.C. ยง 1983 for claims arising from his arrest and incarceration for violation of the terms of his parole. Currently before the Court are cross motions for summary judgment pursuant to Federal Rule of Civil Procedure 56(a), and plaintiff's motion for injunctive relief pursuant to Fed. R. Civ. P. 65. The Court has reviewed the pleadings and the parties' written submissions and considered the matter pursuant to Fed. R. Civ. P. 78. For the reasons described below, the Court will deny plaintiff's motions, and grant in part and deny in part defendants' motion for summary judgment.

 I. BACKGROUND

 The complaint in this case alleges violations of plaintiff's constitutional rights in connection with state parole violation proceedings which were commenced separately in February and April, 1996. Plaintiff Robert Friedland avers that he was released on parole on August 17, 1995 under the supervision of the New Jersey Department of Corrections. Complaint, P 17; Affidavit of Robert Friedland dated May 11, 1996 ("Friedland Affidavit-l"), P 2. He avers that he continued on parole without incident until February 6, 1996 when he was arrested and incarcerated on a parole violation warrant for moving without permission, which was issued by parole supervisor Howell Dilkes at the request of parole officer Anthony Vitello. Complaint, PP 16, 17, 19; Friedland Affidavit-1, P 6; Exhibit B attached to Defendants' Brief and Exhibits in Support of Motion for Summary Judgment ("Defendants' Brief").

 Friedland avers that a preliminary hearing to determine probable cause was conducted on February 21, 1996 in the presence of Diana Farrell, hearing officer. Friedland Affidavit-1, P 7. Friedland asserts that Vitello presented no evidence at the preliminary hearing to support the claimed violation of moving without permission. Complaint, P 19. Friedland claims to have presented documentary evidence showing that he had not moved, consisting of telephone bills recording long distance calls to his son in New Hampshire from the alleged former residence. Complaint, P 20. He avers that Farrell indicated at the hearing that probable cause had not been shown and that Friedland would therefore be released. Complaint, P 21; Friedland Affidavit-1, P 7.

 Friedland asserts that he was informed the next day by his regular parole officer, Peggy MacClymont, that, even though probable cause had not been found, he had to agree to special parole conditions for the intensive supervision program in order to be released. Complaint, PP 36-37; Friedland Affidavit-1, P 9. He asserts that he therefore agreed to the special conditions and was released on February 23, 1996. Complaint, P 23; Friedland Affidavit-1, P 10.

 Neither Farrell nor Vitello have submitted affidavits disputing Friedland's version of the hearing. However, attached to defendants' brief is a document dated February 22, 1996, signed by Diana Farrell and entitled "Notice of Probable Cause Decision." Defendants' Brief, Exhibit C. The notice states: "I find that there is probable cause that the following terms, conditions, and limitations of parole were violated based upon the following evidence and testimony presented at your Probable Cause Hearing." The notice indicates that Friedland was represented by Deidre Hartman and that the bureau of parole was represented by senior parole officer Vitello. It states that Friedland testified that he never moved, although he was asked by the landlord to leave the residence. He admitted to sleeping in his car in the garage the night of February 5th and indicated that he tried unsuccessfully to get in touch with Vitello. The notice states that Vitello read information from the parole record concerning a conversation with Friedland's landlord on February 5, 1995 in which the landlord asserted that Friedland "was thrown out" the prior week. The notice further states:

 
The High Impact Diversion Program was discussed and it was agreed by all that the subject would be referred to same.
 
It is felt the subject should have spoken with another Officer and advised of his situation.
 
The violation is sustained.
 
The violation is forwarded to the Board for their consideration. The subject to be released to the High Impact Diversion Program.

 Defendants' Brief, Exhibit C, p. 2. On the next page, an "X" appears in the box next to the following language: "The parolee shall be continued on parole pending a final determination by the paroling authority, despite finding of probable cause." Id., p. 3. An "X" also appears next to the hand-typed language: "LIFT WARRANT - Parolee to be released to the High Impact Diversion Program." Id.

 Friedland asserts that, pursuant to the terms of the intensive supervision program, he reported for urine monitoring twice a week, even though he never had a drug or alcohol problem, and he was checked at his residence three times per week. Complaint, PP 21-22; Friedland Affidavit-1, P 11.

 Friedland avers that on March 18, 1996 he submitted to his parole officer a request to transfer his residence, from Rumson in Monmouth County to Bayville in Ocean County. Friedland Affidavit- 1, P 12. He avers that Frasier, a parole officer in Ocean County, and Sanmalonas, a Monmouth County parole officer filling in for officer MacClymont, inspected the proposed residence. Friedland Affidavit-1, PP 12-13. He avers that Frasier said that the residence is nicer than his own and that Friedland should be a dishwasher, like other parolees, and not an owner. Friedland Affidavit-1, P 13; Complaint, P 48. He avers that Frasier then told him that he would not approve the residence and that he should report to Monmouth County. Id. ; Complaint, PP 22-24, 48.

 Friedland avers that officer Sanmalonas told him the next week, and noted in the parole file, that the Bayville townhouse could be used as an office, but Friedland should continue sleeping at the Monmouth County residence until the end of the intensive supervision program. Complaint, PP 22-24; Friedland Affidavit-1, P 14. Friedland avers that officer Sanmalonas also told him that the move would be approved after completion of the program, that Friedland would not be under the direction of Frasier, and that he did not know why Frasier appeared to be "after" Friedland. Friedland Affidavit-1, P 14.

 Friedland asserts that he was arrested again on April 8 or 9, 1996 on a parole violation warrant signed by Howell Dilkes and initiated by Peggy MacClymont. He asserts that he was charged with violating the terms of parole by (1) moving without permission and (2) failing to pay restitution of $ 328,285.00. Complaint, P 26, Exhibit A; Defendants' Brief, Exhibit E. Friedland avers that when he called parole officer Seligman to learn the date of the hearing, she said he is a "con man," that he is in deep trouble, that he's not going anywhere, and that he'll receive notice of the hearing. Complaint, P 32; Friedland Affidavit-1, P 17. He asserts that he received less than 24 hours notice of the preliminary hearing. Complaint P 27.

 Friedland asserts that the preliminary hearing was conducted on April 18, 1996. Complaint, P 28; Friedland Affidavit-1, P 19. Friedland avers that Matyus (the hearing officer) and Seligman (the parole officer) refused to wait for his attorney, who had evidence in her possession, on the ground that Friedland need not present evidence until the final revocation hearing. Complaint, P 28; Friedland Affidavit-1, P 19; Affidavit of Robert Friedland attached to cross-motion for summary judgment ("Friedland Affidavit-2"), P 7. Friedland avers that Seligman appeared at the preliminary hearing on behalf of MacClymont, his parole officer. Friedland Affidavit-1, P 17. He asserts that Seligman repeatedly laughed during Friedland's testimony. Complaint, P 31. He avers that Seligman was not his parole officer, did not know the facts of his case, and was unable or unwilling to answer his questions. Friedland avers that defendants' assertion that he questioned her at length during the hearing is an exaggeration of the facts. Friedland Affidavit-2, P 17. He asserts that Seligman and Matyus denied him the right to cross-examine witnesses and to see evidence against him, i.e., the statements referred to in the violation notice on which the alleged violations were based. Complaint, P 29; Friedland Affidavit-1, P 18. He further avers that Matyus and Seligman refused to admit witnesses who were on the witness list and were present at the jail. Friedland Affidavit-2, P 7.

 In addition, Friedland avers that Farrell forwarded a statement to a deputy attorney general regarding another court matter in which she said that Friedland would remain incarcerated for the next nine months. He avers that the statement was made on April 15, 1996, three days prior to the preliminary hearing. Complaint, P 32; Friedland Affidavit-1, P 20.

 Friedland asserts that he did not violate the terms of his parole. With respect to the first alleged violation, he avers that he did not change his residence. Friedland Affidavit-1, P 25. He asserts that no evidence was presented at the hearing documenting the alleged statement of his roommate referred to in the violation notice, but not provided. Complaint, P 34. He avers that the alleged statement of his roommate that he had moved was contradicted by the roommate's sworn statement contained in a municipal complaint against Friedland dated April 4, 1996 stating Friedland's address. Friedland Affidavit-1, P 25 and Complaint-Summons to appear in Municipal Court of Point Pleasant Beach, attached to Complaint. He also avers that his roommate had been staying at the home of the roommate's girlfriend, and that the roommate told him that he had not given a statement to the parole officers. Friedland Affidavit-1, P 26. He further asserts that officer MacClymont, who was not at the hearing, had in February 1996 permitted him to buy the townhouse using the business name "David Cohen." Complaint, P 51. He avers that Sanmalonas approved his use of the townhouse, except for sleeping. Complaint, PP 22-24; Friedland Affidavit-1, P 14.

 With respect to the second alleged violation, he asserts that he made no restitution payments because he was on Social Security Disability for an illness he contracted in jail, and officers Vitello and MacClymont had told him that he was not required to pay restitution while receiving disability payments. In addition, he asserts that officer MacClymont had agreed that his restitution payments would not begin until he earned money through self-employment. Complaint, PP 49-50.

 Friedland further avers that he did not receive the preliminary hearing decision until May 13, 1996, 25 days after the hearing, and that the revocation hearing was not conducted at any time in his 120 day incarceration for alleged violation of parole. Friedland Affidavit-1, P 16. Friedland avers that Seligman and Matyus were biased and that the probable cause decision was not based on the facts, but was a reaction to certain recent atrocities committed by parolees. Friedland Affidavit-1, PP 21-24. He asserts that their conduct was attributable to inadequate training and lack of regulatory enforcement by William Fauver, the Commissioner of the New Jersey Department of Corrections at the time. Complaint, PP 43-44.

 It is undisputed that Friedland was incarcerated for 120 days on the basis of the April, 1996 parole violation warrant without a final revocation hearing. It is also undisputed that on August 5, 1996 the New Jersey State Parole Board terminated the revocation process and directed the withdrawal of the parole revocation warrant and the release of Friedland. Defendants' Brief, Exhibit I.

 The only affidavits submitted on behalf of defendants are the affidavit of Guy Matyus dated May 30, 1997 attached to Defendants' Brief as Exhibit G ("Matyus Affidavit"), an affidavit attesting to the authenticity of the parole records, and an affidavit of counsel concerning filing fee payments. Guy Matyus avers that he was the hearing officer at the April 1996 preliminary hearing and that Ronnie Seligman presented evidence on behalf of the state. Matyus Affidavit, P 2. He avers that he informed plaintiff several times that he had the right to postpone the hearing in order to obtain an attorney, but plaintiff chose to represent himself. Id., PP 3, 5. He avers that he called Deirdre Hartman prior to the hearing and she informed him that plaintiff had not provided her with a retainer for the hearing. Id., P 4. He avers that he informed plaintiff of his right to present evidence and witnesses and that he had the right to cross examine the state's witnesses, but that he did not bring any witnesses or evidence. Id., PP 6, 7. He avers that the only witness presented by the state was officer Seligman, and that plaintiff was permitted to question her at length. Id., P 7.

 Defendants have not submitted copies of the parole violation warrant or the documents causing its issuance. Defendants have submitted a copy of the "Notice of Probable Cause Hearing" dated April 16, 1996 scheduling a preliminary hearing to determine probable cause on April 18, 1996. In the section of the form designed to inform the parolee of the nature and circumstances of the alleged parole violation "with specific documents and witnesses listed in parentheses, as evidence for each violation," the following language appears:

 
See attached violations.
 
Sr PO MacClymont
 
Hearing Officer

 Defendants' Brief, Exhibit E, p. 2. Attached to the notice are 21 pages, all hand-written, except for one page. The first handwritten page begins with "Name: Robert Friedland, Inst. & #: P254258." On the next line is the typed word "VIOLATIONS: " The rest of the page is handwritten and begins with:

 
4) you failed to obtain your parole officer's approval for any change in your residence as evidenced by numerous documents in your own name & in the alias of David Cohen, indicating your address is 22 Quail Run, Bayville; by the statements of your roommate [ ] that you were no longer living in Rumson; and by the statement of [ ] Sales Representative at Mill Creek Island Condos indicating that you bought a condo under the name of David Cohen . . . .

 The next paragraph, with no numbered paragraphs in between, begins:

 
8) you failed to make payment to the Bureau of Parole of the $ 328,285.00 in restitution ordered by the court . . . .

 The "Notice of Probable Cause Decision" dated April 22, 1996 and May 8, 1996 states that hearing officer Matyus found probable cause based on the following evidence and testimony presented at the hearing:

 
Subject was served his Notice of Probable Cause Hearing on 4/17/96 at Monmouth County Correct., Inst., where he remains to date. Subject was advised of Hearing Officer's Miranda Type Warning and identified his signature on his parole certificate. Subject will be represented at the Final Revocation Hearing by a private attorney. Sr. Parole Officer Seligman was present representing the Bureau of Parole.
 
VIOLATIONS :
 
4.: This violation was read to subject. Subject denied that he had ever slept at 22 Quail Run in Bayville. He stated that he slept at the approved residence at 65 East River Rd., in Rumson and remained there - that he slept there every night. He challenged the statements of Kyle Lettis, as indicated in chrono entries dated 4/8/96 and 4/10/96, and claimed that Kyle Lettis, from whom he rented a room in the condo at 65 East River Rd., also resided there but only stayed at the residence 2-3 days per week. Subject questioned how Kyle Lettis could make such claims that he hadn't lived at the Rumson residence when he wasn't there most of the time. Parole Officer noted and the record reflects that according to chrono entries dated 4/8/96 and 4/10/96, [ ] advised Sr. Parole Officer MacClymont on 4/8/96 and District Parole Supervisor Dilkes on 4/10/96 that subject had not lived with him for some time.
 
Violation sustained.
 
8.: This violation was read to subject. Subject admitted he had not made any restitution payments while under parole supervision. Subject claimed he had been given approval by two different Parole Officers to defer payments. When presented with the copy of his letter of revenue obligation dated 8/17/95, subject admitted he had signed same. The revenue obligation document ordered regular monthly restitution payments of $ 300.00. When questioned about the $ ...

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