Victory v. Pataki et al. 13-3592-cv Victory v. Pataki et al.

13‐3592‐cv
Victory v. Pataki et al.
13‐3592‐cv
Victory v. Pataki et al.
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
____________________ 3
4
August Term, 2014 5
6
(Argued: November 14, 2014 Decided: February 1, 2016 7
Amended: February 24, 2016) 8
9
Docket No. 13‐3592 10
11
____________________ 12
13
ALBERT LOPEZ VICTORY, 14
15
Plaintiff‐Appellant, 16
17
v. 18
19
GEORGE PATAKI, Former Governor of the State of New York in his official 20
capacity, BRION D. TRAVIS, Ex‐Chair, Board of Parole, New York State Division 21
of Parole, THOMAS P. GRANT, Special Assistant to the Chair of the Board of 22
Parole, MIKE HAYDEN, Acting Director of the Division of Parole, RONALD P. 23
WHITE, Director of Upstate Field Operations for the Division of Parole, 24
TERRANCE X. TRACY, Chief Counsel to the Chair of the Board of Parole, 25
KENNETH E. GRABER, Commissioner of the Board of Parole, GEORGE 26
CHARD, Senior Parole Officer, Utica Parole Office, DOUGLAS C. SMITH, Ex‐ 27
Supervising Parole Officer, Utica Parole Office, PERRITANO, “JOHN,” First 28
Name Unknown, Parole Officer, Utica Parole Office, KEVIN MCCARTHY, Head 29
of the Special Services Bureau for the Division of Parole, Central New York Area, 30
THOMAS MURFITT, Syracuse Police Officer, GILHOOLEY, “JOHN,” first name 31
unknown, Syracuse Police Officer, TIMOTHY FOODY, Ex‐Police Chief, Syracuse 32

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Police Department, John Does, 1, 2, 3, etc., Jane Does 1, 2, 3, etc., (whose identities 1
are unknown but who are believed to be either employees of the Division of 2
Parole, the Governor’s Office, and/or the Syracuse Police Department); all such 3
individual defendants being sued both in their individual and official capacity, 4
THE CITY OF SYRACUSE, New York, DENNIS DUVAL, Chief of Police of the 5
Syracuse Police Department, GEORGE ALEXANDER, Chair, Board of Parole, in 6
his official capacity, GOVERNOR DAVID PATERSON, RORY D. GILHOOLEY, 7
Syracuse Police Officer, JOHN FALGE, Ex‐Police Chief, Syracuse Police 8
Department, GARY MIGUEL, Police Chief, Syracuse Police Department, ELIOT 9
SPITZER, Governor of the State of New York in his official capacity, 10
11
Defendants‐Appellees. 12
13
____________________ 14
15
Before: POOLER and PARKER, Circuit Judges.1 16
17
Appeal from the United States District Court for the Western District of 18
New York (Skretny, C.J.) granting summary judgment for defendants and 19
dismissing former inmate’s claims that various New York State officials and 20
employees violated and conspired to violate his right to due process in 21
connection with the rescission of his grant of parole release. Because we conclude 22
that genuine issues of material fact remain with respect to the personal 23
1 The Honorable Richard C. Wesley of the United States Court of Appeals for
the Second Circuit was originally assigned as a member of the panel, but recused
himself prior to oral argument and did not participate in the appeal. The appeal
is being determined by the remaining members of the panel, who are in
agreement. See 2d Cir. Local Rules, Internal Operating Procedure E(b); Murray v.
Nat’l Broad. Co., 35 F.3d 45, 46 (2d Cir. 1994).

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involvement of certain Defendants in rescinding the parole, we vacate the district 1
court’s dismissal of the due process claim and remand for further proceedings. 2
Affirmed in part, vacated in part, and remanded. 3
____________________ 4
MYRON BELDOCK, Beldock Levine & Hoffman LLP, 5
New York, NY, for Plaintiff‐Appellant Albert Lopez 6
Victory. 7
8
ANDREW B. AYERS, Assistant Solicitor General, Office 9
of the Attorney General (Eric T. Schneiderman, 10
Attorney General of the State of New York; Nancy A. 11
Speigel, Senior Assistant Solicitor General, on the brief), 12
for Barbara D. Underwood, Solicitor General, Albany, 13
NY, for New York State Defendants‐Appellees. 14
15
SHANNON T. O’CONNOR, Assistant Corporation 16
Counsel, for Robert P. Stamey, Corporation Counsel for 17
the City of Syracuse, Syracuse, NY, for Syracuse 18
Defendants‐Appellees. 19
20
POOLER, Circuit Judge: 21
Plaintiff‐appellant Albert Lopez Victory, a former inmate of the New York 22
Department of Corrections and Community Supervision (“DOCCS”), appeals 23
from the August 27, 2013 order of the United States District Court for the 24
Western District of New York (Skretny, C.J.), granting summary judgment for 25

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Defendants and dismissing his complaint in its entirety. See Victory v. Pataki, No. 1
02‐cv‐0031, 2013 WL 4539296 (W.D.N.Y. Aug. 27, 2013). On appeal, Victory 2
challenges the dismissal of those claims brought pursuant to 42 U.S.C. § 1983 3
against various New York State officials and employees (“Defendants”) for 4
violating and conspiring to violate his right to due process in connection with the 5
rescission of his grant of parole.2 Because we conclude that genuine issues of 6
material fact remain with respect to the personal involvement of certain 7
Defendants in rescinding Victory’s parole, we vacate the district court’s dismissal 8
of the due process claim and remand for further proceedings. 9
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.

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BACKGROUND 1
I. Incarceration 2
In 1970, Victory entered DOCCS custody to serve a sentence of twenty‐five 3
years to life upon his conviction of felony murder, stemming from his 4
involvement in the 1968 shooting death of a police officer. See People v. Bornholdt, 5
305 N.E.2d 461 (N.Y. 1973) (upholding conviction); Victory v. Bombard, 570 F.2d 6
66, 70 (2d Cir. 1978) (reversing grant of writ of habeas corpus). In 1978, while 7
away from Greenhaven Correctional Facility for dental treatment, Victory’s 8
guards permitted him to enter a hotel room with his girlfriend, unshackled. See 9
Tremarco v. N.Y. State Bd. of Parole, 450 N.Y.S.2d 544, 545 (2d Dep’t 1982). Victory 10
escaped and remained at large for three years until he was apprehended in 11
California in 1981.3 See Victory v. Coughlin, 568 N.Y.S.2d 186, 186‐87 (3d Dep’t 12
1991). 13
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.

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Defendants do not dispute that Victory behaved as a model prisoner 1
throughout the 21 years he was incarcerated following his return to DOCCS 2
custody. Victory obtained three college degrees, participated in numerous 3
educational programs, and received commendations from DOCCS on four 4
occasions. 5
II. Parole Release Hearings 6
Victory first became eligible for parole release in 1997. After his first 7
application was denied, Victory appeared on two more occasions before a two‐ 8
member panel of the Board of Parole, but neither panel could reach a consensus 9
and the decision was deferred. At each of these hearings, Victory’s escape from 10
Greenhaven was briefly discussed. 11
On January 11, 1999, Victory was considered for parole release for a fourth 12
time by a two‐member panel consisting of Commissioners Kenneth Graber and 13
Lawrence Scott. The record before the Parole Board included the unequivocal 14
recommendations of eight correctional officers, with no letters in opposition. 15
Although the Board of Parole had solicited letters from the District Attorney’s 16
office in 1995, before Victory became eligible for parole, no letters from the judge 17

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or prosecutors in his criminal case had been received. At that hearing, 1
Commissioner Graber assured Victory that the panel had reviewed all the 2
documents in his file, stating: 3
We have reviewed your documents. We’re familiar with everything. We 4
may not refer to every single thing, but that doesn’t mean we’re not aware 5
of it. There is quite a lot here. We could spend a whole day with you, 6
which we can’t do. We have reviewed everything. Our questioning is so 7
we can clear up any questions we have. 8
9
App’x at 934‐35. The information before the panel contained numerous 10
prominent references to Victory’s 1978 escape, including a notation in blue 11
stating “escaped and returned,” App’x at 859, the statement: “ESCAPE FROM 12
GHCF, 5/5/78, DURING WHICH . . . SUB[J]ECT WAS AT LARGE, FOR 2 ½ YR 13
PERIOD PRIOR TO BEING RETURNED FROM CALIFORNIA,” App’x 1227, 14
and a newspaper article about the escape. Although the January 11, 1999 panel, 15
unlike the prior panels, did not explicitly mention Victory’s escape, it did 16
address Victory’s disciplinary record and it noted that Victory—who had 17
originally been incarcerated for the present offense 27 years earlier in 1968—got 18
married “[t]wenty‐one years ago, [in] 1978,” App’x at 941, and had “one 19
daughter who is now eighteen,” App’x at 943. 20

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Following the January hearing, Graber and Scott granted Victory parole. 1
The Board of Parole’s decision assigned him an open release date of March 11, 2
1999 “or earlier.”4 App’x at 1290. 3
III. Rescission 4
The core of Victory’s due process claim concerns the events precipitating 5
the parole rescission hearing that followed. “The Board’s broad discretion to 6
rescind parole is limited only by the requirement that there be substantial 7
evidence of significant information not previously known by the Board.” Diaz v. 8
Evans, 935 N.Y.S.2d 224, 225 (3d Dep’t 2011) (citations omitted); see 9 N.Y.C.R.R. 9
§ 8002.5(b)(2)(i) (2002). According to Victory, upon learning that the Board of 10
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)).

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Parole had granted Victory parole status, Defendants violated and conspired to 1
violate his right to due process by depriving him of an unbiased panel at his 2
rescission hearing and fabricating a false basis for rescission premised on 3
Commissioner Graber’s purported ignorance of Victory’s escape. As Defendants 4
acknowledged, Victory’s submissions to the district court included “copious 5
allegations” regarding how the rescission process was initiated. State Appellees 6
Br. at 8. Unless otherwise noted, the following allegations are undisputed. 7
A. Decision To Convene a Rescission Hearing 8
On January 12, 1999, the day after the January panel granted Victory 9
parole, Thomas P. Grant, the Special Assistant to the Chairman of the Board of 10
Parole, received a media inquiry from Court TV requesting the outcome of 11
Victory’s parole hearing. Grant then called Terrance X. Tracy, Chief Counsel to 12
Brion D. Travis, Chairman of the Board of Parole, to inform him that Victory had 13
been granted release. Grant testified that he also notified Travis of the parole 14
determination because the case was noteworthy, and that Travis suggested that 15
Grant notify non‐party Katherine Lapp, who at that time served as the 16
Governor’s Director of Criminal Justice. Grant then called Lapp and conveyed 17

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the panel’s determination along with the nature of Victory’s offense and his 1
history as an escapee. Five minutes later, Lapp called Grant back to request that 2
he immediately send the file that had been before the January 11, 1999 panel to 3
her in Albany via overnight mail. Grant testified that Travis said that Lapp could 4
see the file because of the position she held, and also noted that he wanted Tracy 5
to review the file. Michael Hayden, Deputy Chief of Operations of the Division of 6
Parole, and Ronald White, a Regional Director, arranged for the file to be sent to 7
Lapp. 8
Throughout the period Victory was eligible for parole release, then‐ 9
Governor George Pataki espoused a “very strong belief that parole should not be 10
granted to violent felons,” of which belief at least everyone in Governor Pataki’s 11
“inner circle” was aware. App’x at 785. Defendants concede that Governor Pataki 12
heard about the decision to grant Victory parole, possibly as a result of a call 13
from a reporter. State Appellees Br. at 8. Governor Pataki testified that, upon 14
learning of Victory’s grant of parole release, he “made it obvious to people in 15
[his] office [that he] was unhappy with that decision.” App’x at 783. 16

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Lapp had never previously been involved in an individual inmate’s parole 1
decision. Nonetheless, on January 13, 1999, the day after Grant informed Lapp of 2
the decision, Lapp met with Tracy and Grant to address whether proper 3
procedures had been followed during the parole hearing and noted that the 4
transcript of the January 11 hearing did not mention the escape. In that 5
conversation, Lapp, Tracy, and Grant allegedly discussed Commissioner 6
Graber’s ignorance of the 1978 escape as a potential basis for rescission.5 7
According to some testimony, during that meeting, Lapp requested that service 8
of the parole decision to Victory be postponed. That instruction was 9
implemented by Hayden. Although Travis knew that Tracy was meeting with 10
Lapp about the parole decision, there is no evidence that Travis knew what was 11
discussed at the meeting. 12
Also on January 13, Lapp called Assistant District Attorney James Kindler 13
to solicit support for opposing Victory’s parole. Kindler testified that Lapp “was 14
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.

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seeking information to oppose [Victory’s] parole” and he understood that the 1
panel “would need new information.” App’x at 896, 902. 2
Documentary evidence reveals that, early the next day, Kindler researched 3
Victory’s escape and then wrote a letter that discussed the escape and strongly 4
opposed Victory’s parole.6 Indeed, although Kindler stated that Lapp did not tell 5
him what was discussed at the parole hearing, his file exclusively contained 6
research about the escape. 7
However, according to Victory, phone records reveal that no one spoke to 8
Graber until the following day, on January 14, after Graber’s purported oversight 9
had already been identified as grounds for rescission. Victory therefore alleges 10
that Lapp, Tracy, and Grant concocted a plan at the January 13 meeting to 11
suggest to Graber that he had not previously been aware of the escape, and to 12
use that oversight as grounds for rescinding the January panel’s decision to grant 13
Victory parole. 14
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.

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Around January 19, Tracy informed Travis that Graber had not been aware 1
of Victory’s escape when he granted parole and that Kindler had subsequently 2
sent a letter opposing Victory’s release. According to Tracy’s deposition 3
testimony, Travis first proposed the rescission hearing. Tracy and Grant then met 4
with Hayden, who testified that he made the decision to convene the rescission 5
hearing. Later that day, a parole officer provided Victory with both a “Certificate 6
of Release to Parole Supervision,” marked as void, and a “Notice of Temporary 7
Suspension of Parole Release.” App’x at 1097‐98. 8
The initial notice did not inform Victory of the precise grounds for 9
suspension, indicating only that his release was temporarily suspended pending 10
an investigation of new information, pertaining to: 11
Information which existed or behavior which occurred prior to the parole 12
release decision, but was not known at the time the Board rendered the 13
decision or had not been verified at the time the Board rendered the 14
decision. 15
16
App’x at 1097. On February 3, 1999, the Division of Parole prepared a rescission 17
hearing report, which informed Victory of the “charges” against him. But, as 18
stated in that report: 19

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There [were] no charges involving post‐decision behavior by the inmate. 1
Rather, after the Board granted an Open Date of 3/11/99 Or Earlier, a letter 2
was received from the New York County District Attorney’s Office, the 3
office that prosecuted the inmate for the Instant Offense, containing 4
information that was not available to the Board at the time it made the 5
release decision. The recommendation of the office of the prosecutor had 6
not been received prior to the Board’s January, 1999 decision. 7
8
App’x at 1126. 9
B. Rescission Hearing 10
On March 9, 1999, a parole rescission hearing was held before a three‐ 11
member panel, which included Commissioner Graber. Board assignments were 12
made by the secretary to the Board of Parole. White knew that Graber had been 13
assigned to the panel roughly a month before the rescission hearing was held. 14
However, there is no evidence that White either had the power to change the 15
assignment or knew that Graber was to testify at the hearing. 16
Graber began by explaining that the rescission hearing was a “due 17
process . . . hearing” with a limited right to counsel, App’x at 809, and which 18
would be more formal than Victory’s prior “interviews” for parole release. App’x 19
at 818. Graber further noted, and on several occasions repeated, that the Kindler 20
and Keenan letters and recommendations would not themselves provide 21

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grounds for rescission; only the information contained in the letters would be 1
relevant. 2
The only evidence offered at the rescission hearing on the issue of whether 3
Victory’s escape was known to the January panel was Graber’s own unsworn 4
statements to this effect: 5
I’ll make it very clear. The January Panel did not know about this escape. 6
Whether we should have known and whether we somehow missed it and 7
we’re bereft in our duty in not finding it is sort of irrelevant. The Panel did 8
not know it. . . . I, for one, did not know it and I can not speak at this point, 9
because Commissioner Scott is not here, however in our conversation it 10
never came up. I know he was the interviewing Commissioner, but I did 11
review as best I could. 12
13
App’x at 858.7 14
The panel then unanimously voted to rescind Victory’s parole, reasoning 15
that the prosecutors’ letters were “new materials” and that the 1978 escape 16
constituted new information “not actually known” by the prior panel: 17
The letters from the prosecutors are new materials not available to the 18
prior Panel. [Those letters], together with information in the file actually 19
reviewed by this Panel, indicate that there was information not known by 20
the January 1999 panel in regard to subject’s leaving custody for a thirty‐ 21
four month period between 1978 and 1981. Upon review of the record, this 22
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.

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information was not actually known. The rescission of the prior Board 1
decision is warranted. 2
3
App’x at 888‐89. Upon reconsideration of the entire record, the panel then 4
determined that release “would be contrary to the safety and well‐being of the 5
community.” App’x at 889. 6
C. Administrative Appeal of Parole Rescission 7
On November 8, 1999, the Board of Parole Appeals Unit reversed the 8
March panel’s rescission determination, concluding that “[t]he conduct of 9
Commissioner Graber acting as unsworn witness, prosecutor and judge at the 10
rescission hearing so tainted the proceeding that the rescission hearing must be 11
deemed constitutionally insufficient in violation of Mr. Victory’s right to due 12
process.” Appʹx at 1215. The Appeals Unit noted that Graber’s commentary 13
regarding the prior panel’s lack of knowledge of the escape might have supplied 14
substantial evidence to support rescission if it had been entered as proper sworn 15
testimony. However, the Appeals Unit concluded, Graber “was not a sworn 16
witness when he made these pronouncement of ‘proof,’” and it was “plainly 17
improper for him to assess his own credibility in rendering a decision.” App’x at 18
1214. Moreover, because “[t]he institutional file contain[ed] numerous references 19

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to the escape” and “[t]he escape was also discussed by Mr. Victory with prior 1
Boards[,] [t]he record cannot substantiate a finding that the escape was new 2
information not available to the Board at the January 11, 1999 hearing.” App’x at 3
1214. Critically, the Appeals Unit confirmed that the Kindler and Keenan letters 4
would not constitute “substantial new information” absent evidence that these 5
letters contained factual information that was unavailable to, or possibly 6
unknown by, the prior board. App’x at 1214. 7
The Appeals Unit therefore remanded for a new rescission hearing to be 8
convened immediately before a panel of three commissioners who lacked any 9
prior involvement in Victory’s case. 10
Before any rehearing transpired, on December 15, 1999, the Wyoming 11
County Supreme Court granted Victory’s state habeas petition on the ground 12
that the January panel’s decision afforded Victory a protected liberty interest in 13
parole release, of which he had been deprived without the requisite procedural 14
protections and in the absence of any evidence of significant new information. 15
People ex rel. Victory v. Herbert, No. 31141 (Sup. Ct. Wyoming Cnty. Dec. 16, 1999) 16
(Dadd, J.). The court therefore ordered Victory’s immediate release to parole 17

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supervision. Victory was released on December 28, 1999—more than nine 1
months after the latest date for his scheduled release. 2
The Fourth Department subsequently reversed the superior court’s order 3
as exceeding its authority. See People ex rel. Victory v. Herbert, 716 N.Y.S.2d 254, 4
255 (4th Dep’t 2000) (holding habeas relief inappropriate). Without disturbing 5
the determination that the rescission hearing was procedurally unsound, the 6
Fourth Department reinstituted the Board of Parole’s direction to conduct a new 7
rescission hearing. See id. at 256. A second hearing was rendered unnecessary, 8
however, by Victory’s reincarceration during his intervening release. See People ex 9
rel. Victory v. Travis, 734 N.Y.S.2d 749, 751 (4th Dep’t 2001). 10
During his four months on parole, Victory was subjected to “an 11
extraordinarily high level of official scrutiny of his action.” People ex rel. Victory v. 12
Travis, No. 03‐1115, at *18 (Sup. Ct. Clinton Cnty. Mar. 9, 2005) (Feldstein, J.). On 13
April 7, 2000, Syracuse police officers arrested Victory for violating a condition of 14
his parole mandating that he not enter any establishment in which alcohol is 15
consumed or served. Victory admitted that he had consumed alcohol at such an 16
establishment, his parole was revoked, and he was sentenced to 60 months’ 17

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imprisonment. The Clinton County Supreme Court upheld the revocation 1
decision, but determined that the punishment was excessive. People ex rel. Victory, 2
No. 03‐1115, at *22. Because Victory had already served the majority of this term, 3
the court ordered that Victory be immediately considered for re‐release to parole 4
supervision. 5
On October 18, 2005, Victory was released to parole supervision. 6
DISCUSSION 7
Victory alleges that Defendants violated and conspired to violate his right 8
to due process by depriving him of a neutral decision‐maker at his rescission 9
hearing and fabricating a false basis for rescinding his parole. The district court 10
concluded that the rescission hearing implicated Victory’s right to not be 11
deprived of liberty without due process and acknowledged that the rescission 12
hearing was “problematic on a due process level.” Victory, 2013 WL 4539296, at 13
*17. It nonetheless granted Defendants’ motion for summary judgment on the 14
grounds that Victory had not raised a genuine issue of material fact as to the 15
personal involvement of anyone other than Commissioner Graber, who was 16
protected by absolute immunity. Id. Because the district court did not construe all 17

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inferences in Victory’s favor in assessing personal involvement, we vacate its 1
grant of summary judgment. 2
I. Standard of Review 3
The principles governing summary judgment are well established. We 4
review the district court’s grant of summary judgment de novo. Summa v. Hofstra 5
Univ., 708 F.3d 115, 123 (2d Cir. 2013). In assessing the record to determine 6
whether there is a genuine dispute as to any material fact, we resolve all 7
ambiguities and draw all reasonable inferences in favor of the party against 8
whom summary judgment is sought, with the burden on the moving party to 9
demonstrate the absence of any material fact genuinely in dispute. Hathaway v. 10
Coughlin, 841 F.2d 48, 50 (2d Cir. 1988). 11
“In deciding a summary judgment motion, a court must not ‘weigh the 12
evidence, or assess the credibility of witnesses, or resolve issues of fact.’” Kulak v. 13
City of New York, 88 F.3d 63, 71 (2d Cir. 1996) (quoting Rodriguez v. City of New 14
York, 72 F.3d 1051, 1061 (2d Cir. 1995)). “If, as to the issue on which summary 15
judgment is sought, there is any evidence in the record from which a reasonable 16
inference could be drawn in favor of the nonmoving party, summary judgment is 17

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improper.” Rodriguez, 72 F.3d at 1061. Our review of the record demonstrates 1
that the district court did not correctly apply this standard when it dismissed 2
Victory’s complaint. 3
II. Analysis 4
A. Protectable Liberty Interest 5
The first issue before us is whether a New York parole grantee, like 6
Victory, has a liberty interest in his open release date of which he may not be 7
deprived without due process. Consistent with this Court’s holding in Green v. 8
McCall, 822 F.2d 284 (2d Cir. 1987), we conclude that he does. 9
The Fourteenth Amendment’s Due Process Clause protects persons against 10
deprivations of life, liberty, or property without due process of law, and “those 11
who seek to invoke its procedural protection must establish that one of these 12
interests is at stake.” Graziano v. Pataki, 689 F.3d 110, 114 (2d Cir. 2012) (quoting 13
Wilkinson v. Austin, 545 U.S. 209, 221 (2005)). “[S]tandard analysis under that 14
provision proceeds in two steps: We first ask whether there exists a liberty or 15
property interest of which a person has been deprived, and if so we ask whether 16
the procedures followed by the State were constitutionally sufficient.” Swarthout 17

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v. Cooke, 562 U.S. 216, 219 (2011) (citing Ky. Dep’t of Corrs. v. Thompson, 490 U.S. 1
454, 460 (1989)). 2
Liberty interests may arise directly from the Due Process Clause itself or 3
from statutes, regulations, or policies enacted by the state. Wilkinson, 545 U.S. at 4
221‐22.8 “[I]n order to have a protectable liberty interest, a prisoner must have 5
more than a hope or a unilateral expectation of release. ‘He must, instead, have a 6
legitimate claim of entitlement to it.’” Green, 822 F.2d at 288 (some internal 7
quotation marks omitted) (quoting Greenholtz v. Inmates of Neb. Penal & Corr. 8
Complex, 442 U.S. 1, 7 (1979)). In distinguishing between those with “a protectible 9
expectation of parole,” and those with a “mere hope,” Berard v. State of Vt. Parole 10
Bd., 730 F.2d 71, 72 (2d Cir. 1984) (internal quotation marks omitted), that is “too 11
ephemeral, contingent or speculative” to warrant constitutional protection, 12
“[c]onsiderable weight is given to whether the alleged liberty interest is in the 13
nature of ‘a bird in the hand’ rather than one in the bush,” Pugliese v. Nelson, 617 14
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).

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F.2d 916, 922 (2d Cir. 1980). As Judge Friendly observed, “there is a human 1
difference between losing what one has and not getting what one wants.” 2
Greenholtz, 442 U.S. at 10 (quoting Henry J. Friendly, “Some Kind of Hearing,” 123 3
U. Pa. L. Rev. 1267, 1296 (1975)). 4
Thus, for a state prisoner who has not been granted parole, “[n]either the 5
mere possibility of release, nor a statistical probability of release, gives rise to a 6
legitimate expectancy of release on parole.” Barna v. Travis, 239 F.3d 169, 171 (2d 7
Cir. 2001) (citations omitted). Rather, a protectable liberty interest arises only if 8
he has “a legitimate expectancy of release that is grounded in the state’s statutory 9
scheme.” Graziano, 689 F.3d at 114 (2d Cir. 2012) (quoting Barna, 239 F.3d at 170); 10
see also Swarthout, 562 U.S. at 219‐20; Bd. of Pardons v. Allen, 482 U.S. 369, 377‐81 11
(1987) (holding Montana prisoners had protectable liberty interest in parole 12
created by Montana statute requiring that a prisoner “shall” be released when 13
certain conditions are met). By contrast, once a state prisoner has been released 14
on parole, it is well established that his parole may not be revoked without due 15
process. See Young v. Harper, 520 U.S. 143 (1997); Morrissey v. Brewer, 408 U.S. 471 16
(1972). As we explained in Green: 17

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24
We perceive a continuum that includes the liberty interests attributable to, 1
in descending order, the parolee, the parole grantee, and the inmate 2
without a parole date (“nongrantee”). Since the [Supreme Court] . . . 3
accepted the proposition that inmates for whom no parole date had been 4
set could have some protectable interest, we are hard pressed to believe 5
that that Court would not also find that a protectable interest is possessed 6
by an inmate whose release date has already been set and is less than six 7
months away. 8
9
822 F.2d at 289 (emphasis added); see also Klos v. Haskell, 48 F.3d 81, 87 (2d Cir. 10
1995) (describing a continuum ranging from the “denial of a ‘unilateral hope’ of 11
early conditional release (which does not implicate a liberty interest) and 12
revocation of already‐granted release status (which does)” (internal citations 13
omitted) (emphasis added)). 14
We find this reasoning equally applicable in the present context. Unlike a 15
mere applicant for parole, a New York inmate who has been granted an open 16
parole release date has a legitimate expectancy of release that is grounded in 17
New York’s regulatory scheme. We therefore conclude that a New York “parole 18
grantee has a protectable liberty interest that entitles him to due process in the 19

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25
[Board of Parole’s] parole rescission hearings.” Green, 822 F.2d at 287; see Lanier v. 1
Fair, 876 F.2d 243, 252‐53 (1st Cir. 1989).9 2
While Defendants do not dispute that Victory was a parole grantee, they 3
assert that he did not have a protectable liberty interest because New York 4
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).

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26
regulations confer more discretion on the Board of Parole to rescind a prior grant 1
of parole status than did the federal regulations at issue in Green. This argument 2
is without merit. 3
Under 9 N.Y.C.R.R. § 8002.5(b)(2), “parole release may be temporarily 4
suspended or rescinded based upon ‘significant information which existed . . . 5
where such information was not known by [the Board of Parole],’” Raheem v. 6
N.Y. State Bd. of Parole, 888 N.Y.S.2d 631, 633 (3d Dep’t 2009) (first alteration in 7
original) (quoting 9 N.Y.C.R.R. § 8002.5(b)(2)(i)), or “substantial evidence that an 8
inmate has committed ‘significant misbehavior’ including the violation of a 9
prison disciplinary rule,” Bishop v. Smith, 751 N.Y.S.2d 82, 83 (3d Dep’t 2002) 10
(quoting 9 N.Y.C.R.R. § 8002.5(b)(2)(i)). 10 Although the Board of Parole retains 11
“broad discretion” to rescind a grant of parole, that discretion is limited “by the 12
requirement that there be substantial evidence of significant information not 13
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).

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27
previously known by the Board.” Diaz , 935 N.Y.S.2d at 225; accord Raheem, 888 1
N.Y.S.2d at 634 n.1; Pugh v. N.Y. State Bd. of Parole, 798 N.Y.S.2d 182, 183 ( 3d 2
Dep’t 2005); see also Costello v. N.Y. State Bd. of Parole, 994 N.Y.S.2d 39 (2014) 3
(memorandum) (reinstating grant of parole and holding Board of Parole 4
improperly rescinded open release date based on victim impact statements that 5
were first requested after media outcry). 6
New York regulations provide robust procedural protections “[a]fter an 7
inmate has received a parole release date,” which mandate that, before 8
rescinding a prior grant, the Board of Parole must provide the inmate with, inter 9
alia, notice of “the specific allegations which will be considered” as a basis for 10
rescission and a hearing at which the grantee is afforded the right to be 11
represented by counsel, the right to present witnesses and introduce 12
documentary evidence, and, ordinarily, the right to cross‐examine adverse 13
witnesses. 9 N.Y.C.R.R. § 8002.5 (2002). Furthermore, “[i]f a majority of the 14
members of the board conducting the hearing are not satisfied that substantial 15
evidence exists to form a basis for rescinding the grant of release, the board shall 16
cancel the suspension and reinstate the inmate’s original release date or, if that 17

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28
date has past, release shall occur as soon thereafter as is practicable.” 9 1
N.Y.C.R.R. § 8002.5(d)(2) (2002).11 2
These restrictions are not meaningfully different from those at issue in 3
Green, 822 F.2d at 289. In Green, federal parole regulations permitted the 4
Commissioner to “reconsider any case prior to release,” and to rescind a parole 5
grantee’s release date based on “disciplinary infractions and allegations of new 6
criminal conduct occurring after the setting of a parole date,” or “receipt of new 7
and significant adverse information.” 28 C.F.R. § 2.28(b), (e) (1986); see also Iuteri 8
v. Nardoza, 732 F.2d 32, 35 n.3 (2d Cir. 1984); Drayton v. McCall, 584 F.2d 1208, 9
1210 n.3 (2d Cir. 1978). Here, as in Green, the legislature vested the Board of 10
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.

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29
Parole with broad discretion to reconsider a prior grant of a parole release date. 1
But in both cases, that discretion is guided by the requirement that release must 2
be granted under given scenarios. “[T]he presence of official discretion in this 3
sense is not incompatible with the existence of a liberty interest in parole 4
release.” Allen, 482 U.S. at 376. 5
“[B]oth the concreteness of the parole grantee’s liberty expectation and the 6
objective nature of the findings that must be made before that expectation may 7
be eliminated are characteristics that . . . must be viewed as supporting the 8
existence of a protectable liberty interest.” Green, 822 F.2d at 289. Because the 9
Board must reinstate a parole grantee’s prior release status unless there is 10
substantial evidence of significant new information that forms a basis for 11
rescission, a New York parole grantee possesses a liberty interest protected by 12
the Due Process Clause.12 13
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).

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30
B. Process Due 1
Victory does not contest that, in general, the robust procedures established 2
by the New York regulations are constitutionally adequate to protect the liberty 3
interests of parole grantees. Rather, he asserts that Defendants deliberately 4
sought to circumvent New York’s procedural protections by depriving him of a 5
neutral decisionmaker at his rescission hearing and entering into an agreement to 6
unlawfully rescind his parole using a fabricated ground for rescission. If proven, 7
these allegations would suffice to establish a violation of his right not to be 8
deprived of liberty without due process. 13 9
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).

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31
1. Denial of Impartial Decision‐Maker 1
“The fundamental requirement of due process is the opportunity to be 2
heard at a meaningful time and in a meaningful manner.” Holcomb v. Lykens, 337 3
F.3d 217, 223 (2d Cir. 2003) (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)). 4
Even the most minimal guarantees of procedural due process require that the 5
decision be issued by “a neutral and detached hearing body such as a traditional 6
parole board” and supported by at least “some evidence.” Friedl v. City of New 7
York, 210 F.3d 79, 85 (2d Cir. 2000) (internal quotation marks omitted). Indeed, 8
“the essence of a fair hearing is an impartial decisionmaker.” Surprenant v. Rivas, 9
424 F.3d 5, 16 (1st Cir. 2005) (citing Wolff v. McDonnell, 418 U.S. 539, 570‐71 10
(1974)). A parole grantee facing rescission is therefore entitled to “a de novo 11
hearing before a neutral and detached hearing body.” Green, 822 F.2d at 287. 12
It is undisputed that this right was denied to Victory through the 13
concededly “improper involvement of a Parole Board Commissioner” in 14
Victory’s rescission hearing. Victory, 716 N.Y.S.2d at 256. Indeed, although they 15
differed as to the proper remedy, the Board of Parole Appeals Unit and two New 16
York courts that reviewed the rescission determination agreed that the decision 17

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32
issued following the rescission hearing could not stand “because of the improper 1
involvement of a Parole Board Commissioner acting as unsworn witness, 2
prosecutor and judge at the rescission hearing.” Victory, 716 N.Y.S.2d at 256 3
(internal quotation marks omitted).14 The district court below likewise 4
recognized, “as the state courts have repeatedly pointed out, that the conduct of 5
[Victory’s] rescission hearing is problematic on a due process level.” Victory, 2013 6
WL 4539296, at *17. 7
The rescission hearing—and the panel’s ultimate grounds for rescission— 8
hinged entirely on whether Victory’s 1978 escape from Greenhaven was 9
“actually known” by the January panel. App’x at 888‐89. Because the only 10
evidence on this issue was Commissioner Graber’s repeated unsworn testimony 11
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.

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33
to this effect, it was impossible for Victory to dispute the facts purported to 1
justify rescission of his grant of parole without impeaching the credibility of the 2
commissioner heading his rescission panel. This procedural infirmity therefore 3
deprived Victory both of his right to an impartial decision‐maker and to a 4
decision based on some evidence. 5
2. Fabricated Evidence 6
Furthermore, “[i]t is firmly established that a constitutional right exists not 7
to be deprived of liberty on the basis of false evidence fabricated by a 8
government officer.” Zahrey v. Coffey, 221 F.3d 342, 355 (2d Cir. 2000). “No 9
‘reasonably competent officers could disagree,’ that a parole officer can not 10
properly rely on evidence he knows to be false.” Scotto v. Almenas, 143 F.3d 105, 11
113 (2d Cir. 1998) (citations and alteration omitted) (quoting Ricciuti v. N.Y.C. 12
Transit Auth., 124 F.3d 123, 128 (2d Cir. 1997)). Indeed, we have held that Section 13
1983 liability attaches for knowingly falsifying evidence even where there 14
simultaneously exists a lawful basis for a deprivation of liberty. See Ricciuti, 124 15
F.3d at 130 (“No arrest, no matter how lawful or objectively reasonable gives an 16

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34
arresting officer or his fellow officers license to deliberately manufacture false 1
evidence against an arrestee.”). 2
New York regulations afford parole officials broad discretion, but they 3
plainly do “not authorize state officials to rely on knowingly false information in 4
their determinations.” Monroe v. Thigpen, 932 F.2d 1437, 1442 (11th Cir. 1991) 5
(considering Alabama law). Although the procedural protections attached to 6
parole rescission hearings “are in many respects less demanding than those for 7
criminal prosecution, . . . they are not so lax as to let stand the decision of a 8
biased hearing officer who dishonestly suppresses evidence . . . .” Edwards v. 9
Balisok, 520 U.S. 641, 647 (1997). 10
Victory proffered sufficient evidence to raise a triable dispute as to 11
whether he was knowingly deprived of liberty on the basis of fabricated 12
evidence. As the district court at one point recognized, “there arguably exist 13
issues of fact with regard to whether Graber knew of the escape.” Victory, 2013 14
WL 4539296, at *17.15 Given that the record conclusively establishes that Graber 15
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

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35
stated that he did not know of the escape, and that this statement provided the 1
grounds for rescission, it follows that a factual dispute exists as to whether 2
Graber lied, and consequently, whether Victory’s parole was rescinded on the 3
basis of this lie. 4
It is undisputed that Graber was not aware of any procedural defects at the 5
January hearing at least until after learning that a high‐ranking member of 6
Governor Pataki’s administration was investigating his decision, an event that 7
was to his knowledge unprecedented. Furthermore, according to Graber’s 8
deposition testimony, the possibility that he failed to consider the escape was 9
first proposed by Tracy, who, in informing Graber about Lapp’s investigation, 10
inquired whether Graber knew about Victory’s escape. Considering these facts in 11
conjunction with the undisputed evidence that the escape was prominently 12
noted throughout the file that Graber had claimed at the January hearing to have 13
reviewed in its entirety, there is sufficient evidence for a jury to conclude that 14
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.

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36
Graber lied in denying any prior knowledge of Victory’s escape. Because a 1
reasonable jury could find against Defendants, there is a genuine issue of 2
material fact on this issue. 3
Accordingly, Victory proffered admissible evidence, at a minimum, to 4
raise a triable dispute as to whether he was deprived of liberty without due 5
process, in violation of the Fourteenth Amendment. 6
C. Personal Involvement 7
The district court’s primary reason for granting summary judgment on 8
Victory’s due process claim was that he had not proffered sufficient evidence to 9
show personal involvement in the alleged due process violation by any of the 10
named Defendants. After holding that Graber was entitled to absolute immunity, 11
the district court concluded that Victory could not “maintain a constitutional 12
claim arising out of his actions.” Victory, 2013 WL 4539296, at *17. According to 13
the district court, Victory could not establish personal liability of any Defendant, 14
as required to support a Section 1983 suit for damages, unless he could show that 15
the Defendant “directly participate[d] in the rescission hearing” or entered into a 16
conspiracy to deprive Victory of his constitutional rights. Id. As to the 17

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37
conspiracy, the district court concluded that the evidence established that 1
Defendants agreed to no more than reviewing Victory’s parole file. Id. at *20. 2
1. Absolute Immunity 3
We affirm the district court insofar as it concluded that Graber was entitled 4
to absolute immunity for any actions taken while performing the quasi‐judicial 5
function of deciding whether to rescind Victory’s parole. We reject, however, the 6
contention that Graber’s absolute immunity automatically serves to shield any 7
other individual who may have been involved in the sequence of events 8
precipitating the initiation of the rescission proceedings.16 9
When determining whether an official receives qualified or absolute 10
immunity, we take “a functional approach,” where “the level of immunity ‘flows 11
not from rank or title or location within the Government, but from the nature of 12
the official’s responsibilities.’” Scotto, 143 F.3d at 110 (alteration omitted) 13
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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38
(quoting Cleavinger v. Saxner, 474 U.S. 193, 201 (1985)). “[B]ecause absolute 1
immunity detracts from section 1983’s broadly remedial purpose, the 2
presumption is that qualified rather than absolute immunity is sufficient to 3
protect government officials in the exercise of their duties.” Id. (alteration, 4
citation, and internal quotation marks omitted). Most executive officials receive 5
only qualified immunity, Cleavinger, 474 U.S. at 201, and “the official seeking 6
absolute immunity bears the burden of showing that such immunity is justified 7
for the function in question.” Burns v. Reed, 500 U.S. 478, 486 (1991). Thus, “[t]he 8
court must conduct ‘some factual inquiry’ to determine if the duties of the 9
defendants were judicial or prosecutorial, which entitles them to absolute 10
immunity, or administrative, which may entitle them to qualified immunity.” 11
King v. Simpson, 189 F.3d 284, 288 (2d Cir. 1999) (alteration omitted) (quoting 12
Stewart v. Lattanzi, 832 F.2d 12, 13 (2d Cir. 1987)); see Scotto, 143 F.3d at 110‐11. 13
It is well established that “parole board officials, like judges, are entitled to 14
absolute immunity from suit for damages when they serve a quasi‐adjudicative 15
function in deciding whether to grant, deny or revoke parole.” Montero v. Travis, 16
171 F.3d 757, 761 (2d Cir. 1999). “Parole officers also receive absolute immunity 17

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39
for their actions in initiating parole revocation proceedings and in presenting the 1
case for revocation to hearing officers, because such acts are prosecutorial in 2
nature.” Scotto, 143 F.3d at 111‐13. However, absolute immunity does not extend 3
to parole officials and employees when they perform functions outside these 4
narrowly delineated roles, such as “scheduling or making a recommendation.” 5
King, 189 F.3d at 288; see Scotto, 143 F.3d at 112 (holding that state parole officer’s 6
conduct was not protected by absolute or qualified immunity when he prepared 7
false parole violation report and recommended arrest warrant issue and parole 8
revocation proceedings be initiated against parolee based on fabricated parole 9
violation); see also Kalina v. Fletcher, 522 U.S. 118, 131 (1997) (holding that 10
prosecutor not entitled to absolute immunity when functioning as “complaining 11
witness”); Buckley v. Fitzsimmons, 509 U.S. 259, 275‐76 (1993) (prosecutor not 12
entitled to absolute immunity when acting in investigative capacity). 13
We agree with the district court that Graber was entitled to absolute 14
immunity for any actions taken while performing the quasi‐judicial function of 15
adjudicating whether to rescind Victory’s parole. Cf. King, 189 F.3d at 288 16
(distinguishing Anton v. Getty, 78 F.3d 393 (8th Cir. 1996), where the Eighth 17

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40
Circuit held that a parole commissioner’s decision to delay a prisoner’s 1
presumptive parole date was adjudicative, and therefore entitled to absolute 2
immunity). However, Graber’s absolute immunity does not extend to the alleged 3
fabrication of evidence when performed outside that adjudicatory role, before 4
the initiation of rescission proceedings. See Scotto, 143 F.3d at 112. Nor does it 5
protect alleged wrongdoers who, while not performing the function of an 6
adjudicator or an advocate, enlist themselves in a scheme to deprive a person of 7
liberty by rescinding his parole based on grounds known to be fabricated. See 8
Zahrey, 221 F.3d at 353; see also Ricciuti, 124 F.3d at 130 (holding that there was no 9
protection by immunity for police officer who conspired to fabricate a known 10
false confession and forward that confession to prosecutor); Coggins v. Buonora, 11
776 F.3d 108, 113‐14 (2d Cir. 2015) (holding that a police officer who perjured 12
himself before grand jury was not entitled to absolute immunity for lying to the 13
district attorney and knowingly falsifying and omitting material facts from police 14
reports), cert. denied, 135 S. Ct. 2335 (2015). 15
A government official cannot immunize for Section 1983 purposes all 16
unlawful conduct performed prior to and independent of a later immunized act, 17

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41
merely by subsequently engaging in conduct entitled absolute immunity. 1
Coggins, 776 F.3d at 113. This Court explained long ago that the doctrine of 2
absolute immunity does not permit “relating back” absolute immunity afforded 3
for certain subsequent acts to acts of fabrication performed at earlier stages of the 4
proceedings where absolute immunity did not attach. See Zahrey, 221 F.3d at 353 5
n.10. 6
Accordingly, we reject the district court’s categorical conclusion that, due 7
to Graber’s absolute immunity, Victory could not maintain a Section 1983 claim 8
arising out of the procedural infirmities at the rescission hearing unless he 9
showed that another Defendant had “directly participate[d] in the rescission 10
hearing” or participated in a conspiracy to deprive him of his rights. Victory, 2013 11
WL 4539296, at *17. 12
2. Direct Participation of Other Defendants 13
“[A] defendant in a § 1983 action may not be held liable for damages for 14
constitutional violations merely because he held a high position of authority.” 15
Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996). Rather, the “personal involvement 16
of defendants in alleged constitutional deprivations is a prerequisite to an award 17

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42
of damages under § 1983.” Farrell v. Burke, 449 F.3d 470, 484 (2d Cir. 2006) 1
(internal quotation marks omitted). “Because vicarious liability is inapplicable 2
to . . . § 1983 suits,” Victory must raise a genuine dispute as to whether “each 3
Government‐official defendant, through the official’s own individual actions, has 4
violated the Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (emphasis 5
added). “[P]ersonal involvement is a question of fact,” Farrell, 449 F.3d at 484 6
(internal quotation marks omitted), which may preclude summary judgment, see, 7
e.g., Ricciuti, 124 F.3d at 129. 8
Personal involvement may be shown by “direct participation,” which 9
requires in this context “intentional participation in the conduct constituting a 10
violation of the victim’s rights by one who knew of the facts rendering it illegal.” 11
Provost v. City of Newburgh, 262 F.3d 146, 155 (2d Cir. 2001) (footnote omitted). 12
Although we reject the district court’s conclusion that no one other than Graber 13
directly participated in the procedurally defective rescission of Victory’s parole, 14
we hold that there is insufficient evidence that any Defendant who directly 15
participated in the parole rescission process knew of the facts making the process 16
illegal. 17

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43
In particular, Hayden and White arranged for Victory’s file to be sent to 1
Lapp, and there is evidence that Hayden participated in the decision to initiate a 2
rescission hearing. Thereafter, White was involved in arranging the procedural 3
aspects of the rescission hearing. For instance, White received and reviewed the 4
names of the three commissioners assigned to the panel in advance of the 5
rescission hearing. However, there is no evidence that either Hayden or White 6
knew that the basis for the rescission was allegedly false, nor is there evidence 7
that White knew that Graber would have to testify before the very panel on 8
which he was serving, as there is no evidence that White knew the specific basis 9
for the rescission hearing. We therefore conclude that the district court did not 10
err in holding that Victory had not proffered sufficient evidence to support a 11
finding that any Defendant other than Graber directly participated in the alleged 12
due process violation. 13
3. Conspiracy 14
We agree with Victory that the district court erred in concluding that no 15
rational jury could find that any of the other defendants conspired to violate his 16
right to due process. Although the district court acknowledged that Defendants 17

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admittedly participated in multiple conversations regarding the potential 1
rescission of Victory’s parole, the district court found that Victory could not 2
establish the agreement necessary to sustain a conspiracy claim due to lack of 3
direct evidence “that these individuals agreed to anything other than reviewing 4
Plaintiff’s parole file.” Victory, 2013 WL 4539296, at *20. It is axiomatic, however, 5
that “conspiracies are by their very nature secretive operations that can hardly 6
ever be proven by direct evidence.” Rounseville v. Zahl, 13 F.3d 625, 632 (2d Cir. 7
1994); see also United States v. Downing, 297 F.3d 52, 57 (2d Cir. 2002) (“[I]t is a rare 8
case where all aspects of a conspiracy can be laid bare in court with the precision 9
of a surgeon’s scalpel.” (internal quotation marks omitted)). Therefore, in 10
assessing the evidence supporting Victory’s allegations, the district court was not 11
permitted to rely solely on Victory’s failure to show that any of the alleged co‐ 12
conspirators had admitted to impropriety. 13
The district court did not draw all reasonable inferences in Victory’s favor 14
when it concluded that “Graber’s failure to note the escape in the parole file 15
when it was readily available was nothing more than a mistake” and that no 16
nexus existed “between Lapp, Kindler, Keenan, Grant, Travis, and Tracy 17

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discussing Plaintiff’s parole file and Graber depriving Plaintiff of an impartial 1
hearing.” Victory, 2013 WL 4539296, at *20. Crucially, at no point did the district 2
court address the phone records corroborating Victory’s contention that the 3
conversation between Lapp, Tracy, and Grant that allegedly identified Victory’s 4
escape as a basis for rescission preceded Graber’s own purported realization that 5
he had overlooked the escape. Whereas the State Defendants asserted that 6
Graber first became aware of Victory’s escape on January 13, 1999, during a 7
phone conversation between Graber, Tracy, and Grant, Victory pointed to phone 8
records indicating that this call could not have occurred until January 14, 1999, 9
the day after admissible evidence suggests that Lapp was already soliciting 10
letters emphasizing the escape and potentially that Lapp requested that service 11
of the parole decision to Victory be postponed. As the district court at one point 12
acknowledged, Victory raised a genuine dispute as to whether Graber lied about 13
his awareness of the escape to the rescission panel. Considering these facts in 14
conjunction with the State Defendants’ inconsistent testimony regarding the 15
chain of events preceding the rescission hearing, a reasonable juror could 16
conclude that there was an agreement among Lapp, Tracy, and Grant, who 17

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together prematurely set in motion rescission procedures with this allegedly false 1
pretext in mind. See Ricciuti, 124 F.3d at 129. These “inference[s] of impropriety” 2
distinguish Victory’s conspiracy allegations from those that we have dismissed 3
on the basis that they are supported only by “unsubstantiated speculation” with 4
no evidence “to suggest anything untoward took place.” Scotto, 143 F.3d at 115. 5
Accordingly, we conclude that the district court erred in dismissing Victory’s 6
due process conspiracy claim against Tracy and Grant. 7
The district court also dismissed former Governor Pataki and Travis for 8
lack of personal involvement. While the opinion below failed to draw all 9
inferences in Victory’s favor in this respect, we nonetheless agree with its 10
ultimate determination that Victory failed to come forth with evidence that 11
would permit a jury to reasonably find that Governor Pataki or Travis were 12
personally involved in depriving Victory of due process or participated in a 13
conspiracy to that effect. 14
As an initial matter, the undisputed involvement of two high‐ranking 15
members of Governor Pataki’s staff in the events preceding the rescission 16
hearing is insufficient to establish Governor Pataki’s liability because, as noted, 17

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“vicarious liability is inapplicable to . . . § 1983 suits.” Iqbal, 556 U.S. at 676 1
(“Government officials may not be held liable for the unconstitutional conduct of 2
their subordinates under a theory of respondeat superior.” (italics omitted)). 3
Moreover, while Victory suggests that these staff members were acting pursuant 4
to Governor Pataki’s instruction or request, the evidence proffered shows at most 5
that the Governor was aware of and displeased by the Board of Parole’s decision 6
to grant Victory release. Based on this evidence alone, a jury would be left to rely 7
only “on mere speculation or conjecture as to the true nature” of Governor 8
Pataki’s involvement in his staff’s subsequent alleged misconduct, for which the 9
Governor was indisputably not present. Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 10
(2d Cir. 1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249‐50 (1986). 11
Victory has similarly failed to show that Governor Pataki fostered a policy 12
or custom that deprived him of due process during his rescission hearing. 13
Undeniably, there is evidence in the record to suggest that Governor Pataki 14
promoted a blanket policy opposing parole for violent offenders, but this does 15
not support the inference that he “created a policy or custom under which 16
unconstitutional practices occurred.” Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 17

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1995); see also Scott v. Fischer, 616 F.3d 100, 110 (2d Cir. 2010). Victory does not 1
allege that Governor Pataki generally encouraged his staff to intervene in parole 2
decisions or ratified the rescission procedures employed by the Board of Parole. 3
In fact, Victory repeatedly argued that his treatment was anomalous and that 4
Lapp’s involvement in the process was unprecedented. Accordingly, we affirm 5
the district court’s dismissal of Governor Pataki for lack of personal involvement. 6
Similarly, although Victory has set forth evidence that Travis knew of 7
Lapp, Grant, and Tracy’s involvement in the rescission process, there is no 8
evidence suggesting that Travis knew of the alleged falsity of the basis for 9
rescission. That is, while Tracy told Travis that the basis for rescission was that 10
Graber did not know about Victory’s escape, a jury would be left to improperly 11
speculate that Travis knew this was false. And as with Governor Pataki, even as 12
Tracy’s superior, Travis cannot be held liable for Tracy’s actions through a 13
respondeat superior theory. 14
We do not preclude the possibility that there may be some further 15
impediment to Victory’s recovery against some of the named Defendants. On 16
remand, the district court may address whether any individual other than Graber 17

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was entitled to absolute or qualified immunity. We hold only that Victory has 1
proffered admissible evidence making out the elements of a cognizable due 2
process violation, and that he raised a triable dispute as to the personal 3
involvement of Board of Parole officials Tracy and Grant in that deprivation. 4
CONCLUSION 5
We conclude that it was error for the district court, in reliance on the 6
reasons it gave, to grant the Defendants’ motion for summary judgment on 7
Victory’s claim that his due process rights were violated in connection with his 8
rescission hearing. 9
For the foregoing reasons, we REMAND for further proceedings consistent 10
with this opinion. 11

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