Gams v. Westchester County Department of Probation
Gams v. Westchester County Department of Probation
Opinion of the Court
MEMORANDUM OPINION
This matter is before the Court in a most unusual circumstance. Plaintiff claims that the Westchester County District Attorney’s office has threatened him with criminal prosecution if he or his court-appointed counsel should attempt to serve process on plaintiffs former wife, Jianping Wang, one of the defendants in this action and a person whom the pro se complaint
Facts
A. The Initial Stages of this Action
At the time the complaint was filed, plaintiff was an inmate at New York’s Oneida Correctional Facility (“OCF”), where he was serving a sentence of V/¿ to 4$ years for forgery and endangering the welfare of a minor. The gist of the complaint is that his former wife had caused Judie Skelton, a Westchester County probation officer, to include in the presentence report with respect to the forgery and endangerment conviction, with knowledge that the information was false, baseless accusations by Wang that plaintiff had sexually abused his then stepdaughter. This allegedly resulted in plaintiffs treatment by the Department of Correctional Services as a sex offender, an initial denial of parole, and other unfavorable treatment while in prison. The complaint, which is brought under 42 U.S.C. §§ 1983 and 1985(3), asserts violations of the Due Process and Equal Protection Clauses of the Fourteenth Amendment and seeks, among other things, a declaration that Skelton’s actions were unlawful and an order requiring correction of the presentenee report. It names as defendants Ms. Wang, the Westchester
Soon after the complaint was filed, plaintiff moved for a temporary restraining order and a preliminary injunction. That application expanded on the foregoing allegations.
Plaintiff there asserted that he was released from OCF in March despite Wang’s efforts to block his release. On April 15, 2005, he telephoned Wang’s attorney in an effort to determine whether the attorney would accept service of process in this action on behalf of Wang. Upon being advised of this inquiry, Wang allegedly contacted a Westchester assistant district attorney. The district attorney’s office then allegedly charged or caused plaintiff to be charged with aggravated harassment 2nd degree (N.Y. Penal L. § 240.30) and criminal contempt 2d degree (id. § 215.50), both misdemeanors, in the Justice Court of the Village of Mount Kisco on the theory that his call to Wang’s attorney constituted harassment as well as a violation of an order of protection in favor of Wang.
Plaintiff claimed that the Westchester District Attorney’s office sought $250,000 cash bail on these misdemeanor charges.
On the day following plaintiffs arrest, he claims to have spoken to a parole officer. The officer, he said, explained what had transpired in the District Attorney’s office. The officer, who supposedly was “recollecting numerous statements made by the detectives,” allegedly said: 1) “I think you have put yourself in a bad position — Jeanine Pirro is involved personally”,
On the following day, according to plaintiff, another individual, who identified himself only as a county employee, visited him at the jail. The visitor allegedly explained to plaintiff that he would not be sent back to state prison if he “behaved himself’ and that if he was “thinking about a lawsuit naming your ex, forget about it — she should not exist for you.”
Subsequently, plaintiff claimed, his criminal attorney filed a motion in the Mount Kisco Justice Court to dismiss the charges.
The Court denied the requested restraining order, essentially on the ground that the relief requested did not conform to the requirements of Rule 65(d) and out of concern that part of it might run afoul of Younger v. Harris
B. The Present Application
On October 12, 2005, plaintiffs appointed counsel sought assurance from the Westchester District Attorney’s office that service of the complaint and of a copy of a scheduling order issued by this Court (that directed plaintiffs counsel to serve such a copy) would not be considered to violate the criminal law or the order of protection. According to plaintiffs counsel, the line assistant initially gave the requested assurance. On October 17, 2005, however, another assistant district attorney reportedly telephoned plaintiffs counsel and repudiated the assurance given by the line assistant. According to plaintiffs counsel, this individual “repeatedly stated that his Office was reserving its right to prosecute [plaintiff] for serving the complaint in this action in the event the allegations in the Complaint proved baseless.” Later that day, yet another assistant district attorney is said to have reiterated that position.
Discussion
Plaintiff on this motion seeks only an order providing for service of process. The question whether he is likely to prevail on his underlying claim or, for that matter, on any claim of a First Amendment or other violation by the actions of the District Attorney’s office therefore is not implicated at this stage.
The complaint here alleges violations of the Due Process and Equal Protection Clauses and seeks relief under two federal statutes, 42 U.S.C. §§ 1983 and 1985(3). This Court has jurisdiction over the subject matter of this action under Sections 1331 and 1343 of the Judicial Code.
Fed.R.Civ.P. 4(c)(2) provides in relevant part that, “[a]t the request of the plaintiff, ... the court may direct that service be effected by a United States marshal, deputy United States marshal, or other person or officer specially appointed by the court for that purpose” and that “[sjuch an appoint
Here, plaintiff was authorized to proceed informa pauperis by order of the Chief Judge. The alleged threats by the Westchester County District Attorney’s office of possible prosecution of plaintiff, should his lawyers attempt to serve process on Ms. Wang, which on this limited record stand uncontradicted,
Conclusion
Plaintiffs motion is granted. The United States Marshal or any Deputy United States Marshal is directed to effect service of process on defendant Jianping Wang in a manner prescribed by Fed.R.Civ.P. 4(e). Plaintiffs counsel is directed to furnish the United States Marshal with such documents and information as may be required to carry out this order.
SO ORDERED.
. Plaintiff’s subsequently appointed counsel advised the Court at a pretrial conference that he intends to file an amended complaint shortly.
. Cpt. H15.
. This subsequently was confirmed by review of the information filed by the District Attorney’s office. Lieberman Decl. Ex. 1.
. It appears that he now is at liberty although the Court has not been informed fully of his present situation or of the state criminal prosecution.
. Bail ultimately was set at $30,000.
. Gams Aff. $ 25 (emphasis in original).
. Id.
. Id. 1126.
. The Court has not been informed of its status.
. Id. II33.
. 401 U.S. 37, 43-54, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971).
. Memorandum and order, July 14, 2005.
. Lieberman Decl. 11H 4-10.
. Plaintiff does not base this motion on the ground that the threats of the District Attorney’s office to prosecute him if he serves process in this case violates the First and Fourteenth Amendments. He does not here seek to enjoin any action by the District Attorney’s office. See, e.g., Wilson v. Thompson, 593 F.2d 1375 (5th Cir. 1979). Nor is there occasion at this juncture to address any questions concerning the validity or applicability of the state court order of protection, for which there presumably was good reason, or the constitutionality of the New York harassment statute.
. 28 U.S.C. §§ 1331, 1343.
. The District Attorney’s office is not a party to this action and has not sought to be heard on this motion.
Reference
- Full Case Name
- Aaron GAMS v. WESTCHESTER COUNTY DEPARTMENT OF PROBATION
- Status
- Published