Gams v. Westchester County Department of Probation

232 F.R.D. 202, 2005 U.S. Dist. LEXIS 25913, 2005 WL 2850139
CourtDistrict Court, S.D. New York
DecidedNovember 1, 2005
DocketNo. 05 Civ. 2899(LAK)
StatusPublished

This text of 232 F.R.D. 202 (Gams v. Westchester County Department of Probation) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gams v. Westchester County Department of Probation, 232 F.R.D. 202, 2005 U.S. Dist. LEXIS 25913, 2005 WL 2850139 (S.D.N.Y. 2005).

Opinion

MEMORANDUM OPINION

KAPLAN, District Judge.

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 complaint1 describes as a “high-ranking Westchester County administrator conjoined within the Westchester County political apparatus.”2 He seeks an order directing that service be made upon Ms. Wang.

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 [204]*204County Department of Probation, Ms. Skelton, the Town of Bedford, and Town of Bed-ford police officer Matthew DeBiase.

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.3 Plaintiff was arrested on April 21, 2005 and.was in the Westchester County jail awaiting trial on these charges.4 But this was not the end of his story.

Plaintiff claimed that the Westchester District Attorney’s office sought $250,000 cash bail on these misdemeanor charges.5 He claimed further that, on the day of his arrest, a Westchester County Department of Corrections sergeant told another officer in plaintiffs presence: “I just got off the horn with the D.A. This little fuck is not to be anywhere near a phone tonight, and he does not go from point A to point B without an escort.” He then was classified a AAA security risk and placed in the so-called “old jail,” which is used for violent felony offenders, gang members, escape risks, and discipline. At the time of the application, he apparently still was housed there, allegedly without justification.

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”,6 2) “Don’t fight the case in Mt. Kisco — whatever they offer you, just take it ... ”, 3) “Jeanine Pirro will crush you into the pavement with her stiletto heels;” 4) “Those people [the West. Cty. DA Office] will send you back to state prison if you try to fight this thing;” 5) “Your ex-wife has a lot of juice, and she wants you sent away — you would have been better off calling her instead of her lawyer.”7

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.”8

Subsequently, plaintiff claimed, his criminal attorney filed a motion in the Mount Kisco Justice Court to dismiss the charges.9 Shortly thereafter, an assistant warden at the Westchester County jail allegedly told plaintiffs criminal lawyer that plaintiffs AAA status at the jail had been mandated by the District Attorney’s office.10 Later that day, after a call to the assistant district attorney from plaintiffs lawyer, plaintiffs classification was dropped to AA, which he claims is appropriate. But he remained in the old jail.

[205]*205The essence of plaintiffs grievance thus was clear. He claimed that he was arrested on trumped up charges by the District Attorney’s office because his ex-wife, allegedly a high ranking county official, “has a lot of juice” and is well connected politically. The prosecution and the onerous conditions in which he was held, in his view, were designed to force him to drop this action against his former wife and others who allegedly were involved in the inaccurate presentenee report that is said to have caused him trouble while he was in state prison on the forgery and endangerment 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. Harris11 and its progeny.12 Nevertheless, given plaintiffs lack of legal skills and his incarceration, it was evident that he could not effectively prosecute this action or seek whatever relief may be available. Accordingly, the Court granted plaintiffs application for appointment of counsel.

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.

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Related

Younger v. Harris
401 U.S. 37 (Supreme Court, 1971)
Wilson v. Thompson
593 F.2d 1375 (Fifth Circuit, 1979)

Cite This Page — Counsel Stack

Bluebook (online)
232 F.R.D. 202, 2005 U.S. Dist. LEXIS 25913, 2005 WL 2850139, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gams-v-westchester-county-department-of-probation-nysd-2005.