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The low frequency of symptomatic cryptococcal infections, despite the presumably high frequency of exposure, suggests that physical barriers and nonspecific immunity provide adequate defenses to protect the host against infection. This chapter describes physical barriers such as skin, nasal passages, and eye, and humoral and cellular nonspecific defense mechanisms such as polymorphonuclear cells (PMNs), natural killer (NK) cells and macrophages that are believed to provide the first line of defense against cryptococcal infection. Antibody-mediated phagocytosis occurs through Fc receptors, which are constitutively expressed in macrophages, but it should be emphasized that opsonic capsule-binding antibody is not consistently present during human and animal infections. In human macrophages, complement-mediated binding is an energy-dependent process that requires three C3 complement receptors (CR1, CR3, and CR4) and actin but does not necessarily lead to phagocytosis. In summary, there is considerable evidence that macrophages from patients with AIDS are less effective against Cryptococcus neoformans than are those from HIV-seronegative individuals. The relative importance of oxidative and nonoxidative antimicrobial mechanisms of host effector cells in inhibiting and killing C. neoformans is uncertain. In vivo, it is likely that the oxidative and nonoxidative antimicrobial mechanisms cooperate to produce the antifungal effects described for host effector cells.
This chapter focuses on the different molecular mechanisms two model luminous bacteria, Vibrio fischeri (a symbiont) and V. harveyi (a free-living microbe), use for regulating lux expression. Expression of luminescence in most bacteria is tightly regulated by the density of the population. In V. fischeri, the regulatory genes involved in density-dependent control of luminescence are adjacent to the luxCDABEG operon encoding the luciferase enzymes. The regulatory genes that control luminescence in V. harveyi are different from those of V. fischeri. One complementation group of V. harveyi dim mutants could be restored to full light production by a family of recombinant cosmids containing a subset of common restriction fragments. Initial HAI-1 and HAI-2 signal recognition by LuxN and LuxQ could activate a series of phosphotransfer reactions. Two-component circuits have been characterized in which a single protein contains both a sensor kinase and a response regulator domain (similar to LuxN and LuxQ) and a second protein contains both a response regulator domain and a DNA binding motif (similar to LuxO). The differences between the regulatory circuits controlling density-dependent expression of luminescence in V. fischeri and V. harveyi are striking. Subsequent mutations and gene duplications and rearrangements generated new and multiple autoinducers, receptivities, and regulatory connections, finally resulting in a bacterium with the properties of V. harveyi.

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Albert Lopez VICTORY, Plaintiff–Appellant, v. George PATAKI, Former Governor of the State of New York in his official capacity, Brion D. Travis, Ex–Chair, Board of Parole, New York State Division of Parole, Thomas P. Grant, Special Assistant to the Chair of the Board of Parole, Mike Hayden, Acting Director of the Division of Parole, Ronald P. White, Director of Upstate Field Operations for the Division of Parole, Terrance X. Tracy, Chief Counsel to the Chair of the Board of Parole, Kenneth E. Graber, Commissioner of the Board of Parole, George Chard, Senior Parole Officer, Utica Parole Office, Douglas C. Smith, Ex–Supervising Parole Officer, Utica Parole Office, Perritano, “John,” First Name Unknown, Parole Officer, Utica Parole Office, Kevin McCarthy, Head of the Special Services Bureau for the Division of Parole, Central New York Area, Thomas Murfitt, Syracuse Police Officer, Gilhooley, “John,” first name unknown, Syracuse Police Officer, Timothy Foody, Ex–Police Chief, Syracuse Police Department, John Does, 1, 2, 3, etc., Jane Does 1, 2, 3, etc., (whose identities are unknown but who are believed to be either employees of the Division of Parole, the Governor's Office, and/or the Syracuse Police Department); all such individual defendants being sued both in their individual and official capacity, The City of Syracuse, New York, Dennis Duval, Chief of Police of the Syracuse Police Department, George Alexander, Chair, Board of Parole, in his official capacity, Governor David Paterson, Rory D. Gilhooley, Syracuse Police Officer, John Falge, Ex–Police Chief, Syracuse Police Department, Gary Miguel, Police Chief, Syracuse Police Department, Eliot Spitzer, Governor of the State of New York in his official capacity, Defendants–Appellees.
Before POOLER and PARKER, Circuit Judges.1 Myron Beldock, Beldock Levine & Hoffman LLP, New York, NY, for Plaintiff–Appellant Albert Lopez Victory. Andrew B. Ayers, Assistant Solicitor General, Office of the Attorney General (Eric T. Schneiderman, Attorney General of the State of New York; Nancy A. Speigel, Senior Assistant Solicitor General, on the brief), for Barbara D. Underwood, Solicitor General, Albany, NY, for New York State Defendants–Appellees. Shannon T. O'connor, Assistant Corporation Counsel, for Robert P. Stamey, Corporation Counsel for the City of Syracuse, Syracuse, NY, for Syracuse Defendants–Appellees.
Plaintiff-appellant Albert Lopez Victory, a former inmate of the New York Department of Corrections and Community Supervision (“DOCCS”), appeals from the August 27, 2013 order of the United States District Court for the Western District of New York (Skretny, C.J.), granting summary judgment for Defendants and dismissing his complaint in its entirety. See Victory v. Pataki, No. 02–cv–0031, 2013 WL 4539296 (W.D.N.Y. Aug. 27, 2013). On appeal, Victory challenges the dismissal of those claims brought pursuant to 42 U.S.C. § 1983 against various New York State officials and employees (“Defendants”) for violating and conspiring to violate his right to due process in connection with the rescission of his grant of parole.2 Because we conclude that genuine issues of material fact remain with respect to the personal involvement of certain Defendants in rescinding Victory's parole, we vacate the district court's dismissal of the due process claim and remand for further proceedings.
In 1970, Victory entered DOCCS custody to serve a sentence of twenty-five years to life upon his conviction of felony murder, stemming from his involvement in the 1968 shooting death of a police officer. See People v. Bornholdt, 305 N.E.2d 461 (N.Y.1973) (upholding conviction); Victory v. Bombard, 570 F.2d 66, 70 (2d Cir.1978) (reversing grant of writ of habeas corpus). In 1978, while away from Greenhaven Correctional Facility for dental treatment, Victory's guards permitted him to enter a hotel room with his girlfriend, unshackled. See Tremarco v. N.Y. State Bd. of Parole, 450 N.Y.S.2d 544, 545 (2d Dep't 1982). Victory escaped and remained at large for three years until he was apprehended in California in 1981.3 See Victory v. Coughlin, 568 N.Y.S.2d 186, 186–87 (3d Dep't 1991).
Defendants do not dispute that Victory behaved as a model prisoner throughout the 21 years he was incarcerated following his return to DOCCS custody. Victory obtained three college degrees, participated in numerous educational programs, and received commendations from DOCCS on four occasions.
Victory first became eligible for parole release in 1997. After his first application was denied, Victory appeared on two more occasions before a twomember panel of the Board of Parole, but neither panel could reach a consensus and the decision was deferred. At each of these hearings, Victory's escape from Greenhaven was briefly discussed.
We have reviewed your documents. We're familiar with everything. We may not refer to every single thing, but that doesn't mean we're not aware of it. There is quite a lot here. We could spend a whole day with you, which we can't do. We have reviewed everything. Our questioning is so we can clear up any questions we have.
App'x at 934–35. The information before the panel contained numerous prominent references to Victory's 1978 escape, including a notation in blue stating “escaped and returned,” App'x at 859, the statement: “ESCAPE FROM GHCF, 5/5/78, DURING WHICH ․ SUB[J]ECT WAS AT LARGE, FOR 21/212 YR PERIOD PRIOR TO BEING RETURNED FROM CALIFORNIA,” App'x 1227, and a newspaper article about the escape. Although the January 11, 1999 panel, unlike the prior panels, did not explicitly mention Victory's escape, it did address Victory's disciplinary record and it noted that Victory—who had originally been incarcerated for the present offense 27 years earlier in 1968—got married “[t]wenty-one years ago, [in] 1978,” App'x at 941, and had “one daughter who is now eighteen,” App'x at 943.
Following the January hearing, Graber and Scott granted Victory parole. The Board of Parole's decision assigned him an open release date of March 11, 1999 “or earlier.”4 App'x at 1290.
The core of Victory's due process claim concerns the events precipitating the parole rescission hearing that followed. “The Board's broad discretion to rescind parole is limited only by the requirement that there be substantial evidence of significant information not previously known by the Board.” Diaz v. Evans, 935 N.Y.S.2d 224, 225 (3d Dep't 2011) (citations omitted); see 9 N.Y .C.R.R. § 8002.5(b)(2)(i) (2002). According to Victory, upon learning that the Board of Parole had granted Victory parole status, Defendants violated and conspired to violate his right to due process by depriving him of an unbiased panel at his rescission hearing and fabricating a false basis for rescission premised on Commissioner Graber's purported ignorance of Victory's escape. As Defendants acknowledged, Victory's submissions to the district court included “copious allegations” regarding how the rescission process was initiated. State Appellees Br. at 8. Unless otherwise noted, the following allegations are undisputed.
On January 12, 1999, the day after the January panel granted Victory parole, Thomas P. Grant, the Special Assistant to the Chairman of the Board of Parole, received a media inquiry from Court TV requesting the outcome of Victory's parole hearing. Grant then called Terrance X. Tracy, Chief Counsel to Brion D. Travis, Chairman of the Board of Parole, to inform him that Victory had been granted release. Grant testified that he also notified Travis of the parole determination because the case was noteworthy, and that Travis suggested that Grant notify non-party Katherine Lapp, who at that time served as the Governor's Director of Criminal Justice. Grant then called Lapp and conveyed the panel's determination along with the nature of Victory's offense and his history as an escapee. Five minutes later, Lapp called Grant back to request that he immediately send the file that had been before the January 11, 1999 panel to her in Albany via overnight mail. Grant testified that Travis said that Lapp could see the file because of the position she held, and also noted that he wanted Tracy to review the file. Michael Hayden, Deputy Chief of Operations of the Division of Parole, and Ronald White, a Regional Director, arranged for the file to be sent to Lapp.
Throughout the period Victory was eligible for parole release, thenGovernor George Pataki espoused a “very strong belief that parole should not be granted to violent felons,” of which belief at least everyone in Governor Pataki's “inner circle” was aware. App'x at 785. Defendants concede that Governor Pataki heard about the decision to grant Victory parole, possibly as a result of a call from a reporter. State Appellees Br. at 8. Governor Pataki testified that, upon learning of Victory's grant of parole release, he “made it obvious to people in [his] office [that he] was unhappy with that decision.” App'x at 783.
Lapp had never previously been involved in an individual inmate's parole decision. Nonetheless, on January 13, 1999, the day after Grant informed Lapp of the decision, Lapp met with Tracy and Grant to address whether proper procedures had been followed during the parole hearing and noted that the transcript of the January 11 hearing did not mention the escape. In that conversation, Lapp, Tracy, and Grant allegedly discussed Commissioner Graber's ignorance of the 1978 escape as a potential basis for rescission.5 According to some testimony, during that meeting, Lapp requested that service of the parole decision to Victory be postponed. That instruction was implemented by Hayden. Although Travis knew that Tracy was meeting with Lapp about the parole decision, there is no evidence that Travis knew what was discussed at the meeting.
Also on January 13, Lapp called Assistant District Attorney James Kindler to solicit support for opposing Victory's parole. Kindler testified that Lapp “was seeking information to oppose [Victory's] parole” and he understood that the panel “would need new information.” App'x at 896, 902. Documentary evidence reveals that, early the next day, Kindler researched Victory's escape and then wrote a letter that discussed the escape and strongly opposed Victory's parole.6 Indeed, although Kindler stated that Lapp did not tell him what was discussed at the parole hearing, his file exclusively contained research about the escape.
However, according to Victory, phone records reveal that no one spoke to Graber until the following day, on January 14, after Graber's purported oversight had already been identified as grounds for rescission. Victory therefore alleges that Lapp, Tracy, and Grant concocted a plan at the January 13 meeting to suggest to Graber that he had not previously been aware of the escape, and to use that oversight as grounds for rescinding the January panel's decision to grant Victory parole.
Around January 19, Tracy informed Travis that Graber had not been aware of Victory's escape when he granted parole and that Kindler had subsequently sent a letter opposing Victory's release. According to Tracy's deposition testimony, Travis first proposed the rescission hearing. Tracy and Grant then met with Hayden, who testified that he made the decision to convene the rescission hearing. Later that day, a parole officer provided Victory with both a “Certificate of Release to Parole Supervision,” marked as void, and a “Notice of Temporary Suspension of Parole Release.” App'x at 1097–98.
Information which existed or behavior which occurred prior to the parole release decision, but was not known at the time the Board rendered the decision or had not been verified at the time the Board rendered the decision.
There [were] no charges involving post-decision behavior by the inmate. Rather, after the Board granted an Open Date of 3/11/99 Or Earlier, a letter was received from the New York County District Attorney's Office, the office that prosecuted the inmate for the Instant Offense, containing information that was not available to the Board at the time it made the release decision. The recommendation of the office of the prosecutor had not been received prior to the Board's January, 1999 decision.
On March 9, 1999, a parole rescission hearing was held before a threemember panel, which included Commissioner Graber. Board assignments were made by the secretary to the Board of Parole. White knew that Graber had been assigned to the panel roughly a month before the rescission hearing was held. However, there is no evidence that White either had the power to change the assignment or knew that Graber was to testify at the hearing.
Graber began by explaining that the rescission hearing was a “due process ․ hearing” with a limited right to counsel, App'x at 809, and which would be more formal than Victory's prior “interviews” for parole release. App'x at 818. Graber further noted, and on several occasions repeated, that the Kindler and Keenan letters and recommendations would not themselves provide grounds for rescission; only the information contained in the letters would be relevant.
I'll make it very clear. The January Panel did not know about this escape. Whether we should have known and whether we somehow missed it and we're bereft in our duty in not finding it is sort of irrelevant. The Panel did not know it․ I, for one, did not know it and I can not speak at this point, because Commissioner Scott is not here, however in our conversation it never came up. I know he was the interviewing Commissioner, but I did review as best I could.
The letters from the prosecutors are new materials not available to the prior Panel. [Those letters], together with information in the file actually reviewed by this Panel, indicate that there was information not known by the January 1999 panel in regard to subject's leaving custody for a thirty22 four month period between 1978 and 1981. Upon review of the record, this information was not actually known. The rescission of the prior Board decision is warranted.
App'x at 888–89. Upon reconsideration of the entire record, the panel then determined that release “would be contrary to the safety and well-being of the community.” App'x at 889.
On November 8, 1999, the Board of Parole Appeals Unit reversed the March panel's rescission determination, concluding that “[t]he conduct of Commissioner Graber acting as unsworn witness, prosecutor and judge at the rescission hearing so tainted the proceeding that the rescission hearing must be deemed constitutionally insufficient in violation of Mr. Victory's right to due process.” App-x at 1215. The Appeals Unit noted that Graber's commentary regarding the prior panel's lack of knowledge of the escape might have supplied substantial evidence to support rescission if it had been entered as proper sworn testimony. However, the Appeals Unit concluded, Graber “was not a sworn witness when he made these pronouncement of ‘proof,’ “ and it was “plainly improper for him to assess his own credibility in rendering a decision.” App'x at 1214. Moreover, because “[t]he institutional file contain[ed] numerous references to the escape” and “[t]he escape was also discussed by Mr. Victory with prior Boards[,][t]he record cannot substantiate a finding that the escape was new information not available to the Board at the January 11, 1999 hearing.” App'x at 1214. Critically, the Appeals Unit confirmed that the Kindler and Keenan letters would not constitute “substantial new information” absent evidence that these letters contained factual information that was unavailable to, or possibly unknown by, the prior board. App'x at 1214.
The Appeals Unit therefore remanded for a new rescission hearing to be convened immediately before a panel of three commissioners who lacked any prior involvement in Victory's case.
Before any rehearing transpired, on December 15, 1999, the Wyoming County Supreme Court granted Victory's state habeas petition on the ground that the January panel's decision afforded Victory a protected liberty interest in parole release, of which he had been deprived without the requisite procedural protections and in the absence of any evidence of significant new information. People ex rel. Victory v. Herbert, No. 31141 (Sup.Ct. Wyoming Cnty. Dec. 16, 1999) (Dadd, J.). The court therefore ordered Victory's immediate release to parole supervision. Victory was released on December 28, 1999—more than nine months after the latest date for his scheduled release.
The Fourth Department subsequently reversed the superior court's order as exceeding its authority. See People ex rel. Victory v. Herbert, 716 N.Y.S.2d 254, 255 (4th Dep't 2000) (holding habeas relief inappropriate). Without disturbing the determination that the rescission hearing was procedurally unsound, the Fourth Department reinstituted the Board of Parole's direction to conduct a new rescission hearing. See id. at 256. A second hearing was rendered unnecessary, however, by Victory's reincarceration during his intervening release. See People ex rel. Victory v. Travis, 734 N.Y.S.2d 749, 751 (4th Dep't 2001).
During his four months on parole, Victory was subjected to “an extraordinarily high level of official scrutiny of his action.” People ex rel. Victory v. Travis, No. 03–1115, at *18 (Sup.Ct. Clinton Cnty. Mar. 9, 2005) (Feldstein, J.). On April 7, 2000, Syracuse police officers arrested Victory for violating a condition of his parole mandating that he not enter any establishment in which alcohol is consumed or served. Victory admitted that he had consumed alcohol at such an establishment, his parole was revoked, and he was sentenced to 60 months' imprisonment. The Clinton County Supreme Court upheld the revocation decision, but determined that the punishment was excessive. People ex rel. Victory, No. 03–1115, at *22. Because Victory had already served the majority of this term, the court ordered that Victory be immediately considered for re-release to parole supervision.
On October 18, 2005, Victory was released to parole supervision.
Victory alleges that Defendants violated and conspired to violate his right to due process by depriving him of a neutral decision-maker at his rescission hearing and fabricating a false basis for rescinding his parole. The district court concluded that the rescission hearing implicated Victory's right to not be deprived of liberty without due process and acknowledged that the rescission hearing was “problematic on a due process level.” Victory, 2013 WL 4539296, at *17. It nonetheless granted Defendants' motion for summary judgment on the grounds that Victory had not raised a genuine issue of material fact as to the personal involvement of anyone other than Commissioner Graber, who was protected by absolute immunity. Id. Because the district court did not construe all inferences in Victory's favor in assessing personal involvement, we vacate its grant of summary judgment.
The principles governing summary judgment are well established. We review the district court's grant of summary judgment de novo. Summa v. Hofstra Univ., 708 F.3d 115, 123 (2d Cir.2013). In assessing the record to determine whether there is a genuine dispute as to any material fact, we resolve all ambiguities and draw all reasonable inferences in favor of the party against whom summary judgment is sought, with the burden on the moving party to demonstrate the absence of any material fact genuinely in dispute. Hathaway v. Coughlin, 841 F.2d 48, 50 (2d Cir.1988).
“In deciding a summary judgment motion, a court must not ‘weigh the evidence, or assess the credibility of witnesses, or resolve issues of fact.’ “ Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir.1996) (quoting Rodriguez v. City of New York, 72 F.3d 1051, 1061 (2d Cir.1995)). “If, as to the issue on which summary judgment is sought, there is any evidence in the record from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper.” Rodriguez, 72 F.3d at 1061. Our review of the record demonstrates that the district court did not correctly apply this standard when it dismissed Victory's complaint.
The first issue before us is whether a New York parole grantee, like Victory, has a liberty interest in his open release date of which he may not be deprived without due process. Consistent with this Court's holding in Green v. McCall, 822 F.2d 284 (2d Cir.1987), we conclude that he does.
The Fourteenth Amendment's Due Process Clause protects persons against deprivations of life, liberty, or property without due process of law, and “those who seek to invoke its procedural protection must establish that one of these interests is at stake.” Graziano v. Pataki, 689 F.3d 110, 114 (2d Cir.2012) (quoting Wilkinson v. Austin, 545 U.S. 209, 221 (2005)). “[S]tandard analysis under that provision proceeds in two steps: We first ask whether there exists a liberty or property interest of which a person has been deprived, and if so we ask whether the procedures followed by the State were constitutionally sufficient.” Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (citing Ky. Dep't of Corrs. v. Thompson, 490 U.S. 454, 460 (1989)).
Liberty interests may arise directly from the Due Process Clause itself or from statutes, regulations, or policies enacted by the state. Wilkinson, 545 U.S. at 221–22.8 “[I]n order to have a protectable liberty interest, a prisoner must have more than a hope or a unilateral expectation of release. ‘He must, instead, have a legitimate claim of entitlement to it.’ “ Green, 822 F.2d at 288 (some internal quotation marks omitted) (quoting Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979)). In distinguishing between those with “a protectible expectation of parole,” and those with a “mere hope,” Berard v. State of Vt. Parole Bd., 730 F.2d 71, 72 (2d Cir.1984) (internal quotation marks omitted), that is “too ephemeral, contingent or speculative” to warrant constitutional protection, “[c]onsiderable weight is given to whether the alleged liberty interest is in the nature of ‘a bird in the hand’ rather than one in the bush,” Pugliese v. Nelson, 617 F.2d 916, 922 (2d Cir.1980). As Judge Friendly observed, “there is a human difference between losing what one has and not getting what one wants.” Greenholtz, 442 U.S. at 10 (quoting Henry J. Friendly, “Some Kind of Hearing,” 123 U. Pa. L.Rev. 1267, 1296 (1975)).
We perceive a continuum that includes the liberty interests attributable to, in descending order, the parolee, the parole grantee, and the inmate without a parole date (“nongrantee”). Since the [Supreme Court] ․ accepted the proposition that inmates for whom no parole date had been set could have some protectable interest, we are hard pressed to believe that that Court would not also find that a protectable interest is possessed by an inmate whose release date has already been set and is less than six months away.
822 F.2d at 289 (emphasis added); see also Klos v. Haskell, 48 F.3d 81, 87 (2d Cir.1995) (describing a continuum ranging from the “denial of a ‘unilateral hope’ of early conditional release (which does not implicate a liberty interest) and revocation of already-granted release status (which does)” (internal citations omitted) (emphasis added)).
While Defendants do not dispute that Victory was a parole grantee, they assert that he did not have a protectable liberty interest because New York regulations confer more discretion on the Board of Parole to rescind a prior grant of parole status than did the federal regulations at issue in Green. This argument is without merit.
Under 9 N.Y.C.R.R. § 8002.5(b)(2), “parole release may be temporarily suspended or rescinded based upon ‘significant information which existed ․ where such information was not known by [the Board of Parole],’ “ Raheem v. N.Y. State Bd. of Parole, 888 N.Y.S.2d 631, 633 (3d Dep't 2009) (first alteration in original) (quoting 9 N.Y.C.R.R. § 8002.5(b)(2)(i)), or “substantial evidence that inmate has committed ‘significant misbehavior’ including the violation of a prison disciplinary rule,” Bishop v. Smith, 751 N.Y.S.2d 82, 83 (3d Dep't 2002) (quoting 9 N.Y.C.R.R. § 8002.5(b)(2)(i)).10 Although the Board of Parole retains “broad discretion” to rescind a grant of parole, that discretion is limited “by the requirement that there be substantial evidence of significant information not previously known by the Board.” Diaz, 935 N.Y.S.2d at 225; accord Raheem, 888 N.Y.S.2d at 634 n.1; Pugh v. N.Y. State Bd. of Parole, 798 N.Y.S.2d 182, 183 (3d Dep't 2005); see also Costello v. N.Y. State Bd. of Parole, 994 N.Y.S.2d 39 (2014) (memorandum) (reinstating grant of parole and holding Board of Parole improperly rescinded open release date based on victim impact statements that were first requested after media outcry).
New York regulations provide robust procedural protections “[a]fter an inmate has received a parole release date,” which mandate that, before rescinding a prior grant, the Board of Parole must provide the inmate with, inter alia, notice of “the specific allegations which will be considered” as a basis for rescission and a hearing at which the grantee is afforded the right to be represented by counsel, the right to present witnesses and introduce documentary evidence, and, ordinarily, the right to cross-examine adverse witnesses. 9 N.Y.C.R.R. § 8002.5 (2002). Furthermore, “[i]f a majority of the members of the board conducting the hearing are not satisfied that substantial evidence exists to form a basis for rescinding the grant of release, the board shall cancel the suspension and reinstate the inmate's original release date or, if that date has past, release shall occur as soon thereafter as is practicable.” 9 N.Y.C.R.R. § 8002.5(d)(2) (2002).11 These restrictions are not meaningfully different from those at issue in Green, 822 F.2d at 289. In Green, federal parole regulations permitted the Commissioner to “reconsider any case prior to release,” and to rescind a parole grantee's release date based on “disciplinary infractions and allegations of new criminal conduct occurring after the setting of a parole date,” or “receipt of new and significant adverse information.” 28 C.F.R. § 2.28(b), (e) (1986); see also Iuteri v. Nardoza, 732 F.2d 32, 35 n.3 (2d Cir.1984); Drayton v. McCall, 584 F.2d 1208, 1210 n.3 (2d Cir.1978). Here, as in Green, the legislature vested the Board of Parole with broad discretion to reconsider a prior grant of a parole release date. But in both cases, that discretion is guided by the requirement that release must be granted under given scenarios. “[T]he presence of official discretion in this sense is not incompatible with the existence of a liberty interest in parole release.” Allen, 482 U.S. at 376.
“The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.” Holcomb v. Lykens, 337 F.3d 217, 223 (2d Cir.2003) (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)). Even the most minimal guarantees of procedural due process require that the decision be issued by “a neutral and detached hearing body such as a traditional parole board” and supported by at least “some evidence.” Friedl v. City of New York, 210 F.3d 79, 85 (2d Cir.2000) (internal quotation marks omitted). Indeed, “the essence of a fair hearing is an impartial decisionmaker.” Surprenant v. Rivas, 424 F.3d 5, 16 (1st Cir.2005) (citing Wolff v. McDonnell, 418 U.S. 539, 570–71 (1974)). A parole grantee facing rescission is therefore entitled to “a de novo hearing before a neutral and detached hearing body.” Green, 822 F.2d at 287.
It is undisputed that this right was denied to Victory through the concededly “improper involvement of a Parole Board Commissioner” in Victory's rescission hearing. Victory, 716 N.Y .S.2d at 256. Indeed, although they differed as to the proper remedy, the Board of Parole Appeals Unit and two New York courts that reviewed the rescission determination agreed that the decision issued following the rescission hearing could not stand “because of the improper involvement of a Parole Board Commissioner acting as unsworn witness, prosecutor and judge at the rescission hearing.” Victory, 716 N.Y.S.2d at 256 (internal quotation marks omitted).14 The district court below likewise recognized, “as the state courts have repeatedly pointed out, that the conduct of [Victory's] rescission hearing is problematic on a due process level .” Victory, 2013 WL 4539296, at *17.
The rescission hearing—and the panel's ultimate grounds for rescission—hinged entirely on whether Victory's 1978 escape from Greenhaven was “actually known” by the January panel. App'x at 888–89. Because the only evidence on this issue was Commissioner Graber's repeated unsworn testimony to this effect, it was impossible for Victory to dispute the facts purported to justify rescission of his grant of parole without impeaching the credibility of the commissioner heading his rescission panel. This procedural infirmity therefore deprived Victory both of his right to an impartial decision-maker and to a decision based on some evidence.
Furthermore, “[i]t is firmly established that a constitutional right exists not to be deprived of liberty on the basis of false evidence fabricated by a government officer.” Zahrey v. Coffey, 221 F.3d 342, 355 (2d Cir.2000). “No ‘reasonably competent officers could disagree,’ that a parole officer can not properly rely on evidence he knows to be false.” Scotto v. Almenas, 143 F.3d 105, 113 (2d Cir.1998) (citations and alteration omitted) (quoting Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 128 (2d Cir.1997)). Indeed, we have held that Section 1983 liability attaches for knowingly falsifying evidence even where there simultaneously exists a lawful basis for a deprivation of liberty. See Ricciuti, 124 F.3d at 130 (“No arrest, no matter how lawful or objectively reasonable gives an arresting officer or his fellow officers license to deliberately manufacture false evidence against an arrestee.”).
New York regulations afford parole officials broad discretion, but they plainly do “not authorize state officials to rely on knowingly false information in their determinations.” Monroe v. Thigpen, 932 F.2d 1437, 1442 (11th Cir.1991) (considering Alabama law). Although the procedural protections attached to parole rescission hearings “are in many respects less demanding than those for criminal prosecution, ․ they are not so lax as to let stand the decision of a biased hearing officer who dishonestly suppresses evidence ․“ Edwards v. Balisok, 520 U.S. 641, 647 (1997).
Victory proffered sufficient evidence to raise a triable dispute as to whether he was knowingly deprived of liberty on the basis of fabricated evidence. As the district court at one point recognized, “there arguably exist issues of fact with regard to whether Graber knew of the escape.” Victory, 2013 WL 4539296, at *17.15 Given that the record conclusively establishes that Graber stated that he did not know of the escape, and that this statement provided the grounds for rescission, it follows that a factual dispute exists as to whether Graber lied, and consequently, whether Victory's parole was rescinded on the basis of this lie.
It is undisputed that Graber was not aware of any procedural defects at the January hearing at least until after learning that a high-ranking member of Governor Pataki's administration was investigating his decision, an event that was to his knowledge unprecedented. Furthermore, according to Graber's deposition testimony, the possibility that he failed to consider the escape was first proposed by Tracy, who, in informing Graber about Lapp's investigation, inquired whether Graber knew about Victory's escape. Considering these facts in conjunction with the undisputed evidence that the escape was prominently noted throughout the file that Graber had claimed at the January hearing to have reviewed in its entirety, there is sufficient evidence for a jury to conclude that Graber lied in denying any prior knowledge of Victory's escape. Because a reasonable jury could find against Defendants, there is a genuine issue of material fact on this issue.
Accordingly, Victory proffered admissible evidence, at a minimum, to raise a triable dispute as to whether he was deprived of liberty without due process, in violation of the Fourteenth Amendment.
The district court's primary reason for granting summary judgment on Victory's due process claim was that he had not proffered sufficient evidence to show personal involvement in the alleged due process violation by any of the named Defendants. After holding that Graber was entitled to absolute immunity, the district court concluded that Victory could not “maintain a constitutional claim arising out of his actions.” Victory, 2013 WL 4539296, at *17. According to the district court, Victory could not establish personal liability of any Defendant, as required to support a Section 1983 suit for damages, unless he could show that the Defendant “directly participate[d] in the rescission hearing” or entered into a conspiracy to deprive Victory of his constitutional rights. Id. As to the conspiracy, the district court concluded that the evidence established that Defendants agreed to no more than reviewing Victory's parole file. Id. at *20.
When determining whether an official receives qualified or absolute immunity, we take “a functional approach,” where “the level of immunity ‘flows not from rank or title or location within the Government, but from the nature of the official's responsibilities.’ “ Scotto, 143 F.3d at 110 (alteration omitted) (quoting Cleavinger v. Saxner, 474 U.S. 193, 201 (1985)). “[B]ecause absolute immunity detracts from section 1983's broadly remedial purpose, the presumption is that qualified rather than absolute immunity is sufficient to protect government officials in the exercise of their duties.” Id. (alteration, citation, and internal quotation marks omitted). Most executive officials receive only qualified immunity, Cleavinger, 474 U.S. at 201, and “the official seeking absolute immunity bears the burden of showing that such immunity is justified for the function in question .” Burns v. Reed, 500 U.S. 478, 486 (1991). Thus, “[t]he court must conduct ‘some factual inquiry’ to determine if the duties of the defendants were judicial or prosecutorial, which entitles them to absolute immunity, or administrative, which may entitle them to qualified immunity.” King v. Simpson, 189 F.3d 284, 288 (2d Cir.1999) (alteration omitted) (quoting Stewart v. Lattanzi, 832 F.2d 12, 13 (2d Cir.1987)); see Scotto, 143 F.3d at 110–11.
It is well established that “parole board officials, like judges, are entitled to absolute immunity from suit for damages when they serve a quasi-adjudicative function in deciding whether to grant, deny or revoke parole.” Montero v. Travis, 171 F.3d 757, 761 (2d Cir.1999). “Parole officers also receive absolute immunity for their actions in initiating parole revocation proceedings and in presenting the case for revocation to hearing officers, because such acts are prosecutorial in nature.” Scotto, 143 F.3d at 111–13. However, absolute immunity does not extend to parole officials and employees when they perform functions outside these narrowly delineated roles, such as “scheduling or making a recommendation.” King, 189 F.3d at 288; see Scotto, 143 F.3d at 112 (holding that state parole officer's conduct was not protected by absolute or qualified immunity when he prepared false parole violation report and recommended arrest warrant issue and parole revocation proceedings be initiated against parolee based on fabricated parole violation); see also Kalina v. Fletcher, 522 U.S. 118, 131 (1997) (holding that prosecutor not entitled to absolute immunity when functioning as “complaining witness”); Buckley v. Fitzsimmons, 509 U.S. 259, 275–76 (1993) (prosecutor not entitled to absolute immunity when acting in investigative capacity).
We agree with the district court that Graber was entitled to absolute immunity for any actions taken while performing the quasi-judicial function of adjudicating whether to rescind Victory's parole. Cf. King, 189 F.3d at 288 (distinguishing Anton v. Getty, 78 F.3d 393 (8th Cir.1996), where the Eighth Circuit held that a parole commissioner's decision to delay a prisoner's presumptive parole date was adjudicative, and therefore entitled to absolute immunity). However, Graber's absolute immunity does not extend to the alleged fabrication of evidence when performed outside that adjudicatory role, before the initiation of rescission proceedings. See Scotto, 143 F.3d at 112. Nor does it protect alleged wrongdoers who, while not performing the function of an adjudicator or an advocate, enlist themselves in a scheme to deprive a person of liberty by rescinding his parole based on grounds known to be fabricated. See Zahrey, 221 F.3d at 353; see also Ricciuti, 124 F.3d at 130 (holding that there was no protection by immunity for police officer who conspired to fabricate a known false confession and forward that confession to prosecutor); Coggins v. Buonora, 776 F.3d 108, 113–14 (2d Cir.2015) (holding that a police officer who perjured himself before grand jury was not entitled to absolute immunity for lying to the district attorney and knowingly falsifying and omitting material facts from police reports), cert. denied, 135 S.Ct. 2335 (2015).
A government official cannot immunize for Section 1983 purposes all unlawful conduct performed prior to and independent of a later immunized act, merely by subsequently engaging in conduct entitled absolute immunity. Coggins, 776 F.3d at 113. This Court explained long ago that the doctrine of absolute immunity does not permit “relating back” absolute immunity afforded for certain subsequent acts to acts of fabrication performed at earlier stages of the proceedings where absolute immunity did not attach. See Zahrey, 221 F.3d at 353 n.10.
Accordingly, we reject the district court's categorical conclusion that, due to Graber's absolute immunity, Victory could not maintain a Section 1983 claim arising out of the procedural infirmities at the rescission hearing unless he showed that another Defendant had “directly participate[d] in the rescission hearing” or participated in a conspiracy to deprive him of his rights. Victory, 2013 WL 4539296, at *17.
“[A] defendant in a § 1983 action may not be held liable for damages for constitutional violations merely because he held a high position of authority.” Black v. Coughlin, 76 F.3d 72, 74 (2d Cir.1996). Rather, the “personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.” Farrell v. Burke, 449 F.3d 470, 484 (2d Cir.2006) (internal quotation marks omitted). “Because vicarious liability is inapplicable to ․ § 1983 suits,” Victory must raise a genuine dispute as to whether “each Government-official defendant, through the official's own individual actions, has violated the Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (emphasis added). “[P]ersonal involvement is a question of fact,” Farrell, 449 F.3d at 484 (internal quotation marks omitted), which may preclude summary judgment, see, e.g., Ricciuti, 124 F.3d at 129.
Personal involvement may be shown by “direct participation,” which requires in this context “intentional participation in the conduct constituting a violation of the victim's rights by one who knew of the facts rendering it illegal.” Provost v. City of Newburgh, 262 F.3d 146, 155 (2d Cir.2001) (footnote omitted). Although we reject the district court's conclusion that no one other than Graber directly participated in the procedurally defective rescission of Victory's parole, we hold that there is insufficient evidence that any Defendant who directly participated in the parole rescission process knew of the facts making the process illegal.
In particular, Hayden and White arranged for Victory's file to be sent to Lapp, and there is evidence that Hayden participated in the decision to initiate a rescission hearing. Thereafter, White was involved in arranging the procedural aspects of the rescission hearing. For instance, White received and reviewed the names of the three commissioners assigned to the panel in advance of the rescission hearing. However, there is no evidence that either Hayden or White knew that the basis for the rescission was allegedly false, nor is there evidence that White knew that Graber would have to testify before the very panel on which he was serving, as there is no evidence that White knew the specific basis for the rescission hearing. We therefore conclude that the district court did not err in holding that Victory had not proffered sufficient evidence to support a finding that any Defendant other than Graber directly participated in the alleged due process violation.
We agree with Victory that the district court erred in concluding that no rational jury could find that any of the other defendants conspired to violate his right to due process. Although the district court acknowledged that Defendants admittedly participated in multiple conversations regarding the potential rescission of Victory's parole, the district court found that Victory could not establish the agreement necessary to sustain a conspiracy claim due to lack of direct evidence “that these individuals agreed to anything other than reviewing Plaintiff's parole file.” Victory, 2013 WL 4539296, at *20. It is axiomatic, however, that “conspiracies are by their very nature secretive operations that can hardly ever be proven by direct evidence.” Rounseville v. Zahl, 13 F.3d 625, 632 (2d Cir.1994); see also United States v. Downing, 297 F.3d 52, 57 (2d Cir.2002) (“[I]t is a rare case where all aspects of a conspiracy can be laid bare in court with the precision of a surgeon's scalpel.” (internal quotation marks omitted)). Therefore, in assessing the evidence supporting Victory's allegations, the district court was not permitted to rely solely on Victory's failure to show that any of the alleged co-conspirators had admitted to impropriety.
The district court did not draw all reasonable inferences in Victory's favor when it concluded that “Graber's failure to note the escape in the parole file when it was readily available was nothing more than a mistake” and that no nexus existed “between Lapp, Kindler, Keenan, Grant, Travis, and Tracy discussing Plaintiff's parole file and Graber depriving Plaintiff of an impartial hearing.” Victory, 2013 WL 4539296, at *20. Crucially, at no point did the district court address the phone records corroborating Victory's contention that the conversation between Lapp, Tracy, and Grant that allegedly identified Victory's escape as a basis for rescission preceded Graber's own purported realization that he had overlooked the escape. Whereas the State Defendants asserted that Graber first became aware of Victory's escape on January 13, 1999, during a phone conversation between Graber, Tracy, and Grant, Victory pointed to phone records indicating that this call could not have occurred until January 14, 1999, the day after admissible evidence suggests that Lapp was already soliciting letters emphasizing the escape and potentially that Lapp requested that service of the parole decision to Victory be postponed. As the district court at one point acknowledged, Victory raised a genuine dispute as to whether Graber lied about his awareness of the escape to the rescission panel. Considering these facts in conjunction with the State Defendants' inconsistent testimony regarding the chain of events preceding the rescission hearing, a reasonable juror could conclude that there was an agreement among Lapp, Tracy, and Grant, who together prematurely set in motion rescission procedures with this allegedly false pretext in mind. See Ricciuti, 124 F.3d at 129. These “inference[s] of impropriety” distinguish Victory's conspiracy allegations from those that we have dismissed on the basis that they are supported only by “unsubstantiated speculation” with no evidence “to suggest anything untoward took place.” Scotto, 143 F.3d at 115. Accordingly, we conclude that the district court erred in dismissing Victory's due process conspiracy claim against Tracy and Grant.
The district court also dismissed former Governor Pataki and Travis for lack of personal involvement. While the opinion below failed to draw all inferences in Victory's favor in this respect, we nonetheless agree with its ultimate determination that Victory failed to come forth with evidence that would permit a jury to reasonably find that Governor Pataki or Travis were personally involved in depriving Victory of due process or participated in a conspiracy to that effect.
As an initial matter, the undisputed involvement of two high-ranking members of Governor Pataki's staff in the events preceding the rescission hearing is insufficient to establish Governor Pataki's liability because, as noted, “vicarious liability is inapplicable to ․ § 1983 suits.” Iqbal, 556 U.S. at 676 (“Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior.” (italics omitted)). Moreover, while Victory suggests that these staff members were acting pursuant to Governor Pataki's instruction or request, the evidence proffered shows at most that the Governor was aware of and displeased by the Board of Parole's decision to grant Victory release. Based on this evidence alone, a jury would be left to rely only “on mere speculation or conjecture as to the true nature” of Governor Pataki's involvement in his staff's subsequent alleged misconduct, for which the Governor was indisputably not present. Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir.1986); see also Anderson v. Liberty Lobby, Inc ., 477 U.S. 242, 249–50 (1986).
Victory has similarly failed to show that Governor Pataki fostered a policy or custom that deprived him of due process during his rescission hearing. Undeniably, there is evidence in the record to suggest that Governor Pataki promoted a blanket policy opposing parole for violent offenders, but this does not support the inference that he “created a policy or custom under which unconstitutional practices occurred.” Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995); see also Scott v. Fischer, 616 F.3d 100, 110 (2d Cir.2010). Victory does not allege that Governor Pataki generally encouraged his staff to intervene in parole decisions or ratified the rescission procedures employed by the Board of Parole. In fact, Victory repeatedly argued that his treatment was anomalous and that Lapp's involvement in the process was unprecedented. Accordingly, we affirm the district court's dismissal of Governor Pataki for lack of personal involvement.
Similarly, although Victory has set forth evidence that Travis knew of Lapp, Grant, and Tracy's involvement in the rescission process, there is no evidence suggesting that Travis knew of the alleged falsity of the basis for rescission. That is, while Tracy told Travis that the basis for rescission was that Graber did not know about Victory's escape, a jury would be left to improperly speculate that Travis knew this was false. And as with Governor Pataki, even as Tracy's superior, Travis cannot be held liable for Tracy's actions through a respondeat superior theory.
We do not preclude the possibility that there may be some further impediment to Victory's recovery against some of the named Defendants. On remand, the district court may address whether any individual other than Graber was entitled to absolute immunity. We hold only that Victory has proffered admissible evidence making out the elements of a cognizable due process violation, and that he raised a triable dispute as to the personal involvement of Board of Parole officials Tracy and Grant in that deprivation.
We conclude that it was error for the district court, in reliance on the reasons it gave, to grant the Defendants' motion for summary judgment on Victory's claim that his due process rights were violated in connection with his rescission hearing.
For the foregoing reasons, we REMAND for further proceedings consistent with this opinion.
2. We initially disposed of this appeal in a summary order issued on April 17, 2015. See Victory v. Pataki, 609 Fed. App'x 680 (2d Cir.2015). Because we conclude that publication is warranted, we now withdraw our original order for the purposes of converting a portion of its holding into an opinion. Though this opinion provides greater detail with respect to the reasoning underlying our original disposition—particularly with regard to Victory's liberty interest—our holding on the merits of this issue is substantially the same as the original order. In an accompanying order, we address and reject Victory's remaining arguments that the district court erred in dismissing his equal protection and Fourth Amendment claims.
3. Victory was listed among the Federal Bureau of Investigation's “Ten Most Wanted Fugitives” for approximately one year, between 1980 and 1981. During his time as a fugitive, Victory married his wife, and a child was born to them in 1980. See Victory, 568 N.Y .S.2d at 186–87.
4. Although New York regulations do not currently define the term “open release date,” the regulations in effect at the time that Victory was granted parole provided:Where a decision to release an inmate to parole supervision has been rendered, but a satisfactory program has not been developed, an inmate may receive an ODOP (open date own program). Release shall occur as soon after such date as a satisfactory program is available. If a program is not developed within six months of the parole release hearing, the inmate will again appear before the board for a reconsideration of his status.9 N.Y.C.R.R. § 8002.3(f) (emphasis added); see also De Zimm v. N.Y. State Bd. of Parole, 524 N.Y.S.2d 851, 851 n.1 (3d Dep't 1988) (“An open parole release date means an inmate may be released as soon after that date as a satisfactory parole program becomes available.” (citation omitted)).
5. It is not clear whether Lapp, Tracy, and Grant investigated whether Scott, the other commissioner at the parole hearing, knew about Victory's escape at the time of the hearing.
6. Kindler sent a second letter on March 5, providing additional details about Victory's underlying crime. He also notified the lead prosecutor at Victory's trial, District Court Judge John Keenan, of the Board's decision. On March 8, Judge Keenan sent a letter to Governor Pataki opposing Victory's parole, which letter Victory received the next day, on the morning of the March 9 rescission hearing.
7. Commissioner Scott testified at his deposition that he reviewed everything in the file and confirmed that, based on the documents contained in that file, he would have been aware of the escape.
8. Consistent with the Supreme Court's guidance in Sandin v. Conner, our inquiry does not hinge on “the search for a negative implication from mandatory language in prisoner regulations.” 515 U .S. 472, 483 (1995). Here, we focus instead on whether the deprivation involved is “sufficiently like” the deprivation at issue in Green, see Kim v. Hurston, 182 F.3d 113, 118 (2d Cir.1999), in that it involved a state-created right of “real substance,” Wolff v. McDonnell, 418 U.S. 539, 557 (1974).
9. We note that it appears that every New York court to have addressed the issue has likewise concluded that the grant of an open release date, under New York law, is sufficiently similar to the federal “early release date” at issue in Green, 822 F.2d at 285, to give rise to a liberty interest entitled to due process protection. See Blanche v. Dennison, 805 N.Y.S.2d 497, 497–98 (4th Dep't 2005) (holding grantee of “open parole release date” was “not afforded the process he was due” where rescission procedures were not observed); Pugh v. N.Y. State Bd. of Parole, 798 N.Y.S.2d 182, 184 (3d Dep't 2005) (“[W]here, as here, the Board is considering rescission [of an “open release date”], an inmate's rights to due process are adequately protected if the procedures outlined in 9 NYCRR 8002.5(b)(5) are followed.” (citation omitted)); Brooks v. Travis, 797 N.Y.S.2d 183, 184 (3d Dep't 2005) (holding due process rights of grantee of open parole release date were not violated where he knowingly and voluntarily waived his right to counsel); see also Rizo v. N.Y. State Bd. of Parole, 674 N.Y.S.2d 180, 181 (4th Dep't 1998) (“Although petitioner possessed a liberty interest in his parole release after respondent's original determination, ‘the rescission of parole did not violate the due process rights of petitioner’ because he ‘was represented by counsel and the procedures provided in the parole rescission proceedings were constitutionally sufficient.’ “ (quoting Ortiz v. N.Y. State Bd. of Parole, 668 N.Y.S.2d 823, 827 (4th Dep't 1998)). While persuasive, these cases do not relieve us of our obligation to determine Victory's due process rights under the federal Constitution for ourselves. See Holcomb v. Lykens, 337 F.3d 217, 222 n.5 (2d Cir.2003); see also Vincent v. Yelich, 718 F.3d 157, 169 (2d Cir.2013) (“Federal constitutional standards rather than state law define the requirements of procedural due process ․“ (alteration omitted)), cert. denied sub nom. Annucci v. Vincent, 135 S.Ct. 948 (2015).
10. The New York regulations in effect when Victory's parole was rescinded provided that “[e]vents which may cause the temporary suspension and rescission of a parole release date shall include, but not be limited to: (i) significant information which existed, or significant misbehavior which occurred prior to the rendition of the parole release decision, where such information was not known by the board; or (ii) case developments which occur subsequent to the board's rendition of its decision to grant release,” such as, inter alia, “significant misbehavior or a major violation of facility rules.” 9 N.Y.C.R.R. § 8002.5(b)(2) (2002).
11. In light of these detailed regulatory guidelines, the Supreme Court's decision in Jago v. Van Curen, 454 U.S. 14 (1981), is inapt. In Jago, the Court ruled that an Ohio state prisoner who had been granted an early parole date did not have a protectable liberty interest based on “mutually explicit understandings.” Critical to the outcome of that case was the Sixth Circuit's acknowledgement that Ohio parole authorities retained unbridled discretion to rescind parole up until the time of release and that “ ‘[t]he statutes which provide for parole do not create a protected liberty interest for due process purposes.’ “ Id. at 16 (alteration in original) (quoting Van Curen v. Jago, 641 F.2d 411, 414 (1981)); see also State ex rel. Van Curen v. Ohio Adult Parole Auth., 345 N.E.2d 75, 75 (Ohio 1976) (“The Adult Parole Authority has no regulation requiring a hearing prior to rescinding the grant of a parole before release.”). The wholly discretionary nature of the Ohio parole board's rescission authority is no more analogous to the authority of the New York Board of Parole than it was to the authority of the federal Commissioner in Green, 822 F .2d at 289–90. See also Lanier, 876 F.2d at 252.
12. Our conclusion is not altered by the fact that an inmate with an “open release date” shall be released “as soon after such date as a satisfactory program is available.” 9 N.Y.C.R.R. § 8002.3(f) (2002); see De Zimm v. N.Y. State Bd. of Parole, 524 N.Y.S.2d 851, 851 n.1 (3d Dep't 1988). To the extent that the approval of a satisfactory program imposes an additional condition on a parole grantee's release, it renders his expectation of release no more contingent than that of the parole grantees in Green, 822 F.2d at 287–88, whose release date was “conditioned upon continued satisfactory conduct by the prisoner.” 28 C.F.R. § 2.34 (1986).
13. We have held that “there is no constitutional violation (and no available § 1983 action) when there is an adequate postdeprivation procedure to remedy a random, arbitrary deprivation of property or liberty,” and an Article 78 proceeding is just such a procedure. Hellenic Am. Neighborhood Action Comm. v. City of New York, 101 F.3d 877, 881–82 (2d Cir.1996) (emphasis omitted). Petitioners may bring Article 78 proceedings to challenge the procedurally improper rescission of an open parole release date. See, e.g., Diaz, 935 N.Y.S.2d at 224; Blanche v. Dennison, 805 N.Y.S.2d 497 (4th Dep't 2000). However, we are not required on this appeal to consider whether the availability of an Article 78 proceeding bars Victory's claims because defendants failed to raise such an argument. See DiBlasio v. Novello, 344 F.3d 292, 302 (2d Cir.2003).
14. Victory's partially successful appeal of the rescission determination does not defeat his due process claim. See Walker v. Bates, 23 F.3d 652, 657 (2d Cir.1994) (holding successful administrative appeal did not cure procedural defect in prisoner's disciplinary hearing or preclude Section 1983 action for damages against hearing officer). A claim for denial of procedural due process accrues once an inmate is deprived of his constitutional procedural rights and is deprived of liberty as a result. See id. “Once a cause of action for a constitutional violation accrues, nothing that the state does subsequently can cut off the § 1983 claim.” Patterson v. Coughlin, 761 F.2d 886, 893 (2d Cir.1985). Here, Victory remained incarcerated for more than nine additional months after his open release date elapsed solely on the basis of the March 1999 rescission panel's decision.
15. Somewhat contradictorily, the district court later concluded that “all of the testimony corroborates that Graber's failure to note the escape in the parole file when it was readily available was nothing more than a mistake.” Victory, 2013 WL 4539296, at *20. That characterization hardly views the facts in the light most favorable to the non-moving party as is required on a motion for summary judgment. Of course, a jury evaluating the evidence could find, as the district court suggested, that Graber testified truthfully in denying any awareness of the escape at the January hearing. But for the reasons explained herein, we do not constrain our review to those allegations that are substantiated by the direct testimony of Defendants and other alleged members of the conspiracy.
16. Defendants have not asserted that absolute immunity attaches to the functions performed by any of the other named Defendants. Accordingly, we do not opine on whether absolute immunity would bar claims against the individual who possessed the discretionary authority over whether to initiate rescission proceedings, see Scotto, 143 F.3d at 112, or to the individual who performed what might be characterized as the quasi-judicial function of assigning Graber to the panel that presided over Victory's rescission hearing, see Rodriguez v. Weprin, 116 F.3d 62, 66–67 (2d Cir.1997).


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Rudy Perrino is a litigator and recognized trial attorney with significant experience defending and prosecuting claims in a broad range of areas: environmental, mass tort, toxic tort, product liability, commercial, oil and gas, and food law.
Rudy was a member of the trial team featured on the Daily Journal’s 2015 Top Defense Results for its win in Macpherson v. Pace.
Rudy also has experience litigating and trying cases involving cross-border and transnational disputes, including the defense of foreign judgment recognition and enforcement actions in the U.S. and on foreign soil. He has managed and litigated large-scale, high exposure cases in courts across the country and around the world. He also has substantial experience counseling large public and private companies on issues relating to best practices, foreign corrupt practices act, regulatory compliance and chemical safety issues.
Rudy previously served as the director of litigation at Dole Food Company, where he managed worldwide litigation. While at Dole, Rudy was the lead lawyer driving the strategy that proved a massive international fraudulent enterprise and led to the resolution of more than 20,000 claims and over 250 lawsuits in Latin America and the U.S., and positioned the company to resolve or otherwise dispose of hundreds of other lawsuits around the world.
Prior to working for Dole Food Company, Rudy worked for several years as a litigator representing chemical companies, petroleum companies, manufacturers, distributors and other various business interests, primarily in claims of toxic exposure and environmental contamination. His experience defending toxic exposure claims covers a wide spectrum of toxins, including pharmaceuticals.
Rudy’s environmental experience is similarly broad, having defended petroleum companies, chemical manufacturers, materials manufacturers, equipment manufacturers, automotive manufacturers, hazardous waste generators, property owners and even food suppliers in a variety of disputes involving claims of soil, groundwater, surface water and protected waters contamination, permit violations, environmental law and regulatory violations and the like. He has even defended allegations of criminal conduct with respect to environmental issues.
Rudy is co-chair of the American Bar Association’s Section of Litigation’s Product Liability Committee and has previously served as co-chair of the Environmental and Energy Litigation Committee (ELC) and of the Mass Torts Litigation Committee. As co-chair of these committees, Rudy directs the day-to-day functioning of the committee and leads the thousands of practitioners around the country in the business of providing benefits to the Section’s members, such as continuing legal education seminars, publication and speaking opportunities, and networking opportunities.
Rudy is fluent in Spanish.
Macpherson v. Pace – After an 8 week jury trial, secured a defense verdict in favor of the client, a small Bakersfield oil producer, who was sued by one of the largest California onshore oil producers, and others, for subsurface trespass and nuisance. The plaintiffs sought more than $35 million in damages relating to an alleged decrease in oil production. The jury deliberated for less than five hours before returning a verdict in favor of the client. That verdict was reported by the Daily Journal as one of the top defense verdicts for the year 2015.
Angel Acosta, et al. v. Shell Oil Company, et al. – Successfully represented developer Barclay Hollander in litigation of claims of more than 200 present and former homeowners claiming property damage and personal injury as a result of historical contamination by petroleum left behind after storage tanks previously owned by Shell Oil Company were demolished in the 1960s. Succeeded in obtaining dismissal order for parent corporation, Dole Food Company.
Tellez, et al. v. Dole Food Company, Inc., et al. – Trial of claims of 12 Nicaraguans that they were rendered sterile by the pesticide dibromochloropropane (DBCP) while working on Dole related farms. A four month trial resulted in verdicts for six, reduced to four on post-trial motions. Post-trial motions resulted in the elimination of punitive damages from this case and future cases and resulted in reduction of verdicts from $5 million to $1.58 million. On appeal, the matter was remanded pursuant to a writ of corum vobis for further proceedings on the question of fraud in the procurement of the judgment. Trial court later vacated the judgment and entered judgment for the defendants on the grounds that the plaintiffs had been trained to lie about working on banana farms.
Wheeler v. AvalonBay Communities, Inc. – Served as lead lawyer for the primary defendant (AvalonBay) in class action allegations for personal injuries, rent abatement and restitution under Business & Professions Code section 17200, et seq. Successfully defeated class allegations at the pleading stage and prevailed on appeal. The case was subsequently settled for less than 0.1% of initial demand.
Afshin, et al. v. Stericycle, Inc. – Served as lead lawyer for a medical waste hauler in claims for personal injury, property damage and business losses by property owners surrounding Sunshine Canyon Landfill. Successfully settled the case for waiver of costs.
White v. AAD, et al. – Represented American Laundry Machinery, Inc., a machinery manufacturer and franchisor, in a citizen suit under Proposition 65 relating to alleged discharges of dry cleaning fluid to drinking water sources throughout California. The matter was defeated on demurrer.
Pacific Gas & Electric Company v. New Hampshire Insurance Company, et al. – Successfully represented a developer (Culver) in claims by property owner for damages stemming from unauthorized timber cutting. Case settled for waiver of costs.
San Diego Motors v. City of San Diego, et al. (Duck Pond Litigation) – Property damage case in which our client, San Diego Motors, sought costs of repair related to property purchased from the City of San Diego for use as an automobile dealership. Issues of the presence of hazardous materials complicated the evidence and analysis. A four week jury trial was settled prior to verdict.
People v. Pacific Custom Materials, Inc. – Resolved a claim, well short of trial and for a modest penalty, on behalf of a manufacturer of concrete aggregate products in a claim for civil penalties arising out of alleged air permit violations caused by exceedances of several regulated chemicals and metals, including lead.
Environmental World Watch v. Pacific Custom Materials, Inc. – Successfully resolved a claim for a nominal amount well before trial on behalf of a manufacturer of concrete aggregate products defending claims by several surrounding neighbors and community activists alleging personal injury, property damage, and various statutory violations arising out of emissions of chemicals and metals, including lead.
In his spare time, Rudy enjoys spending time with his family, cooking, traveling, camping, playing golf, running and skiing.
University of California, Riverside, B.S.

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1. Patent No. 1,228, 120, issued May 29, 1917, to Lenke for a cargo beam capable of moving on a horizontal axis so as to present its full strength in the line of stress, thus permitting the use of less metal than was required for the fixed beam of the prior art, and saving expense in installation, held valid. P. 275 U. S. 339.
2. Where two reasons are given in an opinion for the same decision, neither is obiter dictum. P. 275 U. S. 340.
3. Rev.Stat. § 3477, forbidding assignments of claims against the United States prior to allowance, liquidation, and issuance of a warrant for payment applied to claims for infringement of a patent. P. 275 U. S. 340.
4. The right to recover for past infringement of a patent by a private party is assignable with the patent. P. 275 U. S. 344.
5. Under the Act of June 25, 1910, where a patented article was made for the United States by a contractor, unauthorized by the patent owner, and used by the United States, the patent owner had an assignable right of action for the infringement against the contractor, and a claim against the United States for reasonable compensation for the use, assertable in the Court of Claims, but subject to the provisions of Rev.Stats. § 3477 forbidding assignments. Pp. 341, 275 U. S. 344, 275 U. S. 346.
United States for manufacture and use occurring since the date of the Act is assignable with the patent, notwithstanding the sweeping terms of Rev.Stats. § 3477. P. 275 U. S. 345.
7. Federal statutes should be so construed as to avoid serious doubt of their constitutionality. P. 275 U. S. 346.
8. The special intent to permit such assignments, deducible from the later statute and its history, though not expressed, must prevail over the broad general term of the earlier one forbidding assignments. P. 275 U. S. 346.
Certiorari, 273 U.S. 679, to a judgment of the Court of Claims rejecting a claim for infringement of a patent.
This is a suit by the Anchor Company brought under the Act of June 25, 1910, c. 423, 36 Stat. 851, as amended July 1, 1918, c. 114, 40 Stat. 704, 705, to recover for the infringement of letters patent No. 1,228,120 for a cargo beam, granted May 29, 1917, to Melchior Lenke, and assigned by Lenke to Thomas E. Chappell, and by Chappell to the Anchor Company.
The Court of Claims first decided that the plaintiff was entitled to recover from the United States. Thereafter, the court made a second decision, on December 7, 1925, in which it found as an additional fact that, through the contractors who manufactured for the United States, the United States had installed, on or before January 1, 1919, 810 cargo beams covered by the Lenke patent, and that it did not thereafter install any more; that the use of the Lenke cargo beams by the United States resulted in a saving in the expense of installation of cargo beams used by it amounting in the case of each beam to 2,000 pounds of metal, with a value of 6 1/2 cents per pound; that the single advantage which the United States gained by the use of the beams was the saving in cost of the same and the convenience resulting from their novelty.
and a new one entered dismissing the plaintiff's petition, for the reason that the assignment of the claims for infringement to the plaintiff was void and of no effect under § 3477 of the Revised Statutes. The Court of Claims, on the second hearing, yielded to this contention and dismissed the petition.
A cargo beam is a beam employed in combination with other elements to carry the weight of cargo to be removed from the hold of vessels alongside a pier or wharf and deposited on the pier or in the warehouses fronting on the same. Such beams are old, and have been used for years. The method existing prior to this invention was the use of two channel beams, spaced several inches apart, firmly riveted together at the top and bottom by means of angle irons or plates and rigidly affixed at either end to two uprights extending upward through the roof of the warehouse in brackets designed for the purpose. The record showed that a beam adaptable for the purpose weighed 3,300 pounds, and must possess the full strength of withstanding the pull of cargo weights from both a vertical and diagonal angle.
Lenke conceived the idea of substituting for the fixed beam a single I-beam of about 1,300 pounds in weight. At each end of the I-beam, he attached laterally a strong bar by means of rivets and angle irons, providing holes near its upper end, through which holes he introduced pivots, thereby enabling the cargo beam to swing into any angle from which the load was applied. Lenke fastened U-bolts into the center, or neutral, zone of the beam to receive the hoisting tackle. The real worth of the invention lay in the lightness of the cargo beam he used, because the operator could present it so as to make the strain on the beam to be vertical, even when force was applied from an angle.
claims, which made it quite narrow, as its course through the Patent Office clearly demonstrated.
It is argued on behalf of the United States that Lenke's invention was unpatentable because it embodied nothing more than a natural and normal modification of existing ideas. Such modifications and their advantage were all very clear after the fact, but the old beams had been in use for a number of years, and a heavy weight of metal had been used when, by Lenke's device, it was cut down two-thirds. Lenke's cargo beam almost universally superseded the old one. The United States used it, and it was installed in nearly every pier in the country. No one else had foreseen its advantage. Lenke offered it as a solution of the problem at a minimum cost with a maximum efficiency. The United States conceded in the Court of Claims that Lenke's patent was novel in the sense that there was nothing in the prior art exactly like it, and that it was useful. While thus, in a way, he improved an existing idea, he developed a new idea. The question of its patentability was worked out in the Court of Claims, and all the judges concurred in upholding its validity, and did not change their conclusion in the second judgment. We see no reason for differing from that conclusion.
witnesses, after the allowance of such a claim, the ascertainment of the amount due, and the issuing of a warrant for the payment thereof. Such transfers, assignments, and powers of attorney must recite the warrant for payment, and must be acknowledged by the person making them before an officer having authority to take acknowledgments of deed, and shall be certified by the officer, and it must appear by the certificate that the officer at the time of the acknowledgment, read, and fully explained the transfer, assignment, or warrant of attorney to the person acknowledging the same."
In the Brothers case, Mr. Justice Pitney said the claim of Brothers for compensation for a patent he had secured by assignment could not apply to an "unliquidated claim against the government arising prior to the time he became the owner of the patent." Rev.St. § 3477.
Counsel for the petitioner here insist that this statement was not necessary to the decision, because the conclusion in that case was clearly made to depend on the noninfringement of the patent, and that the reference to § 3477 could only be regarded as obiter dictum. It does not make a reason given for a conclusion in a case obiter dictum because it is only one of two reasons for the same conclusion. It is true that, in this case, the other reason was more dwelt upon, and perhaps it was more fully argued and considered, than § 3477, but we cannot hold that the use of the section in the opinion is not to be regarded as authority except by directly reversing the decision in that case on that point, which we do not wish to do.
the assignee are to be found in §§ 4898, 4919, 4921, and other related sections. Crown Die & Tool Co. v. Nye Tool & Machine Works, 261 U. S. 24, 261 U. S. 42-43. But there is no conflict between the patent sections and § 3477. The latter section was passed to protect the government and prevent frauds upon the Treasury. Western Pac. R. Co. v. United States, 268 U. S. 271, 268 U. S. 275; Seaboard Air Line R. Co. v. United States, 256 U. S. 655, 256 U. S. 657; Goodman v. Niblack, 102 U. S. 556, 102 U. S. 559-560. And it would seem that the danger of exploiting and harassing the government with the use of assignments of claims for patent infringement was within the general purpose of that section.
United States might avail itself of any and all defenses, general or special, which might be pleaded by a defendant in an action for an infringement, as set forth in Title 60 of the Revised Statutes or otherwise.
This Court held, March 4, 1918, in Cramp & Sons Ship & Engine Bldg. Co. v. International Curtis Marine Turbine Co., 246 U. S. 28, 246 U. S. 42, 246 U. S. 45, that the Act of 1910 did not effect a license to the United States or the contractor making the patented device to make or use the invention, and that the contractor could be sued for an injunction and for infringement in spite of the operation of that Act.
"confronted with a difficult situation as the result of a recent decision by the Supreme Court affecting the government's rights as to the manufacture and use of patented inventions, and it seems necessary that amendment be made of the Act of June 25, 1910. . . . The decision is, in effect, so far as it is of importance here, that a contractor for the manufacture of a patented article for the government is not exempt, unless he is only a contributory infringer, from injunction and other interference through litigation by the patentee."
are reluctant to take contracts that may bring such severe consequences. The situation promised serious disadvantage to the public interests, and in order that vital activities of this department may not be restricted unduly at this time, and also with a view of enabling dissatisfied patentees to obtain just and adequate compensation in all cases conformably to the declared purpose of said act, I have the honor to request that the act be amended by the insertion of a proper provision therefor in the pending naval appropriation bill."
"That, whenever an invention described in and covered by a patent of the United States shall hereafter be used or manufactured by or for the United States without license of the owner thereof or lawful right to use or manufacture the same, such owner's remedy shall be by suit against the United States in the Court of Claims for the recovery of his reasonable and entire compensation for such use and manufacture."
This is followed by the same provisos as in the Act of 1910, which need not be repeated here.
brief with respect to the Act, it is more than a waiver of immunity, and effects an assumption of liability by the government.
Under the Act of 1910, the remedy of the owner of a patent, where the United States had used the invention without his license or lawful right to use it, was to sue for reasonable compensation in the Court of Claims, and that remedy was open to Lenke for the cargo beams covered by his patent, installed and used by the United States before July 1, 1918.
The evidence does not show at what time during the year 1918 the beams were installed. The first finding is that Lenke wrote to an officer in the Quartermaster's Department on duty at the army supply base at Brooklyn, on December 31, 1918, complaining that the Lenke cargo beam was being used by the government at that supply base without permission from the patentee, but nothing happened but a fruitless correspondence.
The findings of the Court of Claims show that, on January 1, 1919, 810 of the beams had been installed at the instance of the government, but how many were installed after July 1, 1918, when the law in question was passed, has not been found by the Court of Claims.
On September 29, 1920, the Lenke patent was assigned by Lenke to one Thomas E. Chappell, who, in turn, on March 7, 1921, assigned it to the plaintiff company in accordance with the statute, and the assignment in each case covered all rights of action for past infringements of the patent and all rights to recoveries by suit for damages, profits, and royalties for infringements of every kind whatsoever.
It is settled that, but for the Act of 1918, the two assignments vesting title in the Anchor Company would enable it to recover from the contractor for all his infringements. Crown Die & Tool Co. v. Nye Tool & Machine Works, supra; Gordon v. Anthony, 16 Blatchf. 234, Fed.Cas.
No. 5,605; Waterman v. Mackenzie, 138 U. S. 252, 138 U. S. 256, 138 U. S. 261; Gayler v. Wilder, 10 How. 477, 51 U. S. 494; Robinson on Patents, Vol. 3, § 937, p. 122. If now § 3477 applies, and these assignments are rendered void, the effect of the Act of 1918 is to take away from the assignee and present owner not only the cause of action against the government, but also to deprive it of the cause of action against the infringing contractor for injury by his infringement. The intention and purpose of Congress in the Act of 1918 was to stimulate contractors to furnish what was needed for the war, without fear of becoming liable themselves for infringements to inventors or the owners or assignees of patents. The letter of the Assistant Secretary of the Navy upon which the Act of 1918 was passed leaves no doubt that this was the occasion for it. To accomplish this governmental purpose, Congress exercised the power to take away the right of the owner of the patent to recover from the contractor for infringements. This is not a case of a mere declared immunity of the government from liability for its own torts. It is an attempt to take away from a private citizen his lawful claim for damage to his property by another private person which, but for this act, he would have against the private wrongdoer. This result, if § 3477, Rev.Stat., applies and avoids the assignment, would seem to raise a serious question as to the constitutionality of the Act of 1918 under the Fifth Amendment to the federal Constitution. We must presume that Congress, in the passage of the Act of 1918, intended to secure to the owner of the patent the exact equivalent of what it was taking away from him. It was taking away his assignable claims against the contractor for the latter's infringement of his patent. The assignability of such claims was an important element in their value, and a matter to be taken into account in providing for their just equivalent. If § 3477 applied, such equivalence was impossible.
It is our duty in the interpretation of federal statutes to reach a conclusion which will avoid serious doubt of their constitutionality. Phelps v. United States, 274 U. S. 341. Moreover, we should seek to carry out in our dealing with the Act of 1918 and Revised Statutes, § 3477, the very important congressional purpose of the former, as already explained, in the promotion of the war as a special legislative intent. It is our duty to give effect to that special intent, although it be not in harmony with a broad purpose manifested in a general statute avoiding assignment of claims against the government enacted some 80 years ago. In re Rouse, Hazard & Co., 91 F. 96, 100, 101; Townsend v. Little, 109 U. S. 504, 109 U. S. 512; Washington v. Miller, 235 U. S. 422, 235 U. S. 428. This is in accord with general rules of interpretation as shown in these authorities, and reconciles the § 3477, Revised Statutes and the Act of 1918 if we hold, as we do, that § 3477 does not apply to the assignment of a claim against the United States which is created by the Act of 1918 insofar as the Act deprives the owner of the patent of a remedy against the infringing private contractor for infringements thereof, and makes the government indemnitor for its manufacturer or contractor in his infringements.
Such a conclusion requires us to reverse the case and remand it to the Court of Claims for additional findings to show how many of the patented beams were made by contractors and furnished to the United States after the passage of the Act of July 1, 1918, and what would have been a reasonable royalty therefor.
The question of the amount of or the rule for measuring the recovery we do not decide, but leave that for further argument and consideration by the Court of Claims because of the novel and only partial application of § 3477 Rev.Stat.