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Rao v. New Jersey State Parole Board


May 23, 2008


On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-5183-06.

Per curiam.


Submitted May 19, 2008

Before Judges C.S. Fisher and Kestin.

Plaintiff John Rao appeals from the dismissal of this suit by way of summary judgment. Rao's complaint sought damages based upon allegations that he had been wrongfully incarcerated by the Department of Corrections and Division of Parole. We find no merit in Rao's appeal and affirm.

The relevant circumstances were set in motion when Rao was convicted of manslaughter and, on April 20, 1988, sentenced in Hudson County as a youthful offender to an indeterminate term not to exceed twenty years, pursuant to N.J.S.A. 2C:43-5. Nearly four years later, on February 14, 1992, Rao was paroled; on that date, his maximum custodial term would end on January 24, 2007.

Rao was later arrested and charged in Bergen County with various offenses, including eluding and theft; as a result, on June 6, 1996, a warrant was issued and Rao's parole revoked. On March 4, 1997, Rao was again granted parole on the youthful offender sentence. On June 6, 1997, Rao was sentenced as an adult on the eluding conviction to a ten-year term, with a five-year parole ineligibility period, and to a concurrent four-year term on the theft offense. These terms were also ordered to run concurrently with his indeterminate youthful offender sentence. It is asserted that Rao's youthful offender parole term continued to run as if he were still on parole while he was incarcerated for his adult term on the Bergen offenses. In short, while Rao was incarcerated for the adult offenses, his maximum parole supervision date on his youthful offender parole term was not reduced by credits of any kind. At the time Rao was sentenced for the Bergen offenses, his maximum sentence date was June 12, 2003 on the Bergen matters and November 14, 2006 on his youthful offender term.

Rao was paroled on the adult matter on August 2, 2002. On January 17, 2003, a parole warrant issued, and the parole term on the youthful offender matter was revoked. And, on May 28, 2003, Rao was again paroled on that matter; his maximum term on that matter was then October 26, 2006. On June 12, 2003, Rao's maximum term on his adult sentence expired.

Rao again violated the conditions of his parole, and parole was revoked on August 26, 2003. On November 6, 2003, Rao was continued on parole, conditioned upon successful completion of a drug program. Rao absconded from this program on November 18, 2003, after he gave a urine sample that later proved positive for heroin. A parole warrant issued for his arrest, and on November 23, 2003, Rao was returned to custody.

On December 17, 2004, the judge who sentenced Rao to the youthful offender term issued an order that reduced the original twenty-year term to an eighteen-year term, thereby altering the maximum release date at the time from October 21, 2006 to October 22, 2004. The judge's order was not received by the Department of Corrections until December 28, 2004. On January 3, 2005, Rao was released from the custody of the Department of Corrections, and his status as a parolee was terminated.

The Department of Corrections and Parole Board were served with notices of tort claims on or about March 30, 2005. Rao's complaint in this action was filed on October 26, 2006. Rao pled various tort theories and constitutional violations based upon his contention that he was unlawfully held in custody and on parole supervision for a period beyond the sentence imposed.

Before discovery could be conducted, defendants moved to dismiss the complaint for failure to state a claim upon which relief might be granted, R. 4:6-2(e), or, in the alternative, for summary judgment, R. 4:46-1. Judge John A. O'Shaughnessy granted the motion for the reasons contained in a comprehensive and well-reasoned oral decision.

We agree, as held by Judge O'Shaughnessy, that defendants were entitled to qualified immunity. The Parole Board's decision not to revoke Rao's parole upon his conviction on the Bergen charges, which resulted in both the continued running of the parole term on the youthful offender sentence and a prohibition on any credits to reduce the parole term while he was incarcerated on the Bergen matters, was objectively reasonable. For this and the other reasons set forth by Judge O'Shaughnessy in his oral decision, with which we substantially agree, we reject Rao's arguments.



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