ciaprazi dismissal order released 5-31-2013 from judge loretta preska

UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORK--------------------------------------------------------------X

:ROBERTO CIAPRAZI, :

:Plaintiff, : ORDER OF DISMISSAL

:-against- : 13 Civ. 0193 (LAP)

:ANTHONY J. ANNUCCI; BRIAN FISCHER; :KATHLEEN M. RICE; ALBERT J. TEICHMAN; :JUDITH STERNBERG; WILLIAM McCLEAN :III; WILLIAM McCLEAN IV; FERRELL :McCLEAN; PAIGE McCLEAN; BARACK :OBAMA; ERIC HOLDER; PAULA A. WOLFF, :

:Defendants. :

:--------------------------------------------------------------X

LORETTA A. PRESKA, Chief United States District Judge:

Plaintiff, currently incarcerated in the Sing Sing Correctional Facility, brings this pro se

action under 42 U.S.C. 1983 and Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388

(1971), alleging violations of his federal constitutional rights. He seeks damages, injunctive

relief, and declaratory relief. Plaintiff sues the Commissioner and a Deputy Commissioner of

the New York State Department of Corrections and Community Supervision (Defendants

Fischer and Annucci); the Nassau County District Attorney (Defendant Rice); two Nassau

County Assistant District Attorneys (Defendants Teichman and Sternberg); the person he is

convicted of kidnaping (Defendant William McClean IV, (the victim)); the victims father,

mother, and sister (Defendants William McClean III, Ferrell McClean, and Paige McClean);

President Barack Obama; Attorney General Eric Holder; and the Chief of the United States

Department of Justices International Prisoner Transfer Program (Defendant Wolff). Plaintiff

has also filed an ex parte motion for leave to take immediate discovery and to compel discovery,

asking the Court to compel Defendant Rice to provide Plaintiff with the addresses of the victim

and his family for the purpose of service of process. The Court construes Plaintiffs claims

against Defendants Obama, Holder, and Wolff as brought pursuant to Bivens and Plaintiffs

claims against the remainder of the Defendants as brought pursuant to 1983. By order dated

Case 1:13-cv-00193-LAP Document 6 Filed 04/23/13 Page 1 of 15Case: 13-2118 Document: 2 Page: 1 05/31/2013 952672 15

February 20, 2013, the Court granted Plaintiffs request to proceed in forma pauperis. The Court

dismisses the complaint for the reasons set forth below.

STANDARD OF REVIEW

The Court is required to screen complaints brought by prisoners seeking relief against a

governmental entity or an officer or employee of a governmental entity. 28 U.S.C. 1915A(a).

The Court must dismiss a complaint, or portion thereof, that is frivolous or malicious, fails to

state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is

immune from such relief. 28 U.S.C. 1915(e)(2)(B), 1915A(b); see Abbas v. Dixon, 480 F.3d

636, 639 (2d Cir. 2007). While the law mandates dismissal on any of these grounds, district

courts remain obligated to construe a pro se complaint liberally. Harris v. Mills, 572 F.3d 66,

72 (2d Cir. 2009). Thus, pro se complaints should be read with special solicitude and should

be interpreted to raise the strongest [claims] that they suggest. Triestman v. Fed. Bureau of

Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (internal quotation marks and citations omitted).

BACKGROUND

Plaintiff is a Romanian citizen. He alleges that he has been incarcerated since February

6, 1991, and in 1996, he was sentenced to serve an imprisonment term of twenty-five years-to-

life after he was convicted of kidnaping Defendant William McClean IV. Beginning in 1998,

Plaintiff requested permission from the United States Department of Justice (DOJ) to be

transferred to a Romanian prison to serve the remainder of his sentence. Plaintiff alleges that

DOJ officials sought approval of the transfer from what is now known as the New York State

Department of Corrections and Community Supervision (DOCCS).1 Plaintiff alleges that

beginning on May 4, 2000, and continuing for eight years thereafter, Defendant Annucci, a

DOCCS Deputy Commissioner, denied Plaintiffs requests, stating that NYS Correction Law

5(4) rendered [Plaintiff] ineligible for transfer due to [his] sentence having a maximum of

1 The New York State Department of Correctional Services and the New York State Divisionof Parole have merged to become the New York State Department of Corrections andCommunity Supervision.

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life imprisonment. Plaintiff also alleges that in April 2007, a state court ruled that N.Y. Corr.

Law 5(4) did not render him ineligible for a transfer and it remanded the matter to DOCCS.2

Plaintiff alleges that Defendant Annucci then requested the opinions of Defendant Rice and of

the victim and his family as to Plaintiffs request for a transfer. In a letter dated October 14,

2008, Defendant Teichman, a Nassau County Assistant District Attorney, opposed [Plaintiffs]

transfer on behalf of [D]efendant[] Rice and [the victim and his family.] On November 5,

2008, Defendant Annucci denied Plaintiffs request for a transfer based on the seriousness of

the crime, [Plaintiffs] failure to accept responsibility for it, and the objections . . . [of] the

prosecuting attorney and the [victim and his family]. In a letter dated November 20, 2008,

Plaintiff sought reconsideration of the denial of his request from Defendant Fischer, the DOCCS

Commissioner; however, Defendant Fischer failed to respond to his letter.3

On April 12, 2011, Plaintiff again requested a transfer from Defendants Wolff, Fischer,

and Annucci. In a letter dated July 28, 2011, based on the serious nature of Plaintiffs crime(s),

Defendant Annucci again denied Plaintiffs request. The letter also indicated that that decision

was final. Plaintiff sought, in effect, reconsideration from Defendants Fischer and Annucci. On

April 10, 2012, Defendant Annucci wrote to Plaintiff indicating that reconsideration of his

2 Plaintiff appears to have challenged Defendant Annuccis denial of his request for a transferin an Article 78 petition brought in the New York Supreme Court, Albany County. On April 18,2007, that court held that N.Y. Corr. Law 5(4) did not make Plaintiff ineligible for a transferand that he was indeed eligible for a transfer. On April 11, 2008, the New York Supreme Court,Appellate Division, Third Department, affirmed the lower court insofar as it held that N.Y. Corr.Law 5(4) did not render Plaintiff ineligible for a transfer but reversed its holding that Plaintiffwas affirmatively eligible for a transfer. In re Ciaprazi v. Goord, 854 N.Y.S. 2d 320 (N.Y. App.Div. 2008). The court noted that eligibility for transfer is governed by Correction Law 71(1-b) and the regulations promulgated thereunder. Id. at 321.

3 Plaintiff appears to have challenged that denial of his request for a transfer in anotherArticle 78 proceeding in the New York Supreme Court, Albany County. On January 14, 2010,the New York Supreme Court denied Plaintiffs petition. On November 24, 2010, the AppellateDivision affirmed the lower courts judgment, holding that the DOCCS Commissioner has thesole authority to consider a prisoners transfer application pursuant to N.Y. Corr. Law 71(1-b)and that the Commissioner did not abuse that authority in Plaintiffs case. In re Ciaprazi v.Annucci, 911 N.Y.S. 2d 260 (N.Y. App. Div. 2010), leave to appeal denied, 920 N.Y.S. 2d 781(N.Y. 2011).

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request for a transfer would require a change in the present circumstances which would in

effect[,] support the transfer, such as the Nassau County District Attorney or the crime victim or

his family withdrawing their objections. Until then, however, the decision to deny [Plaintiffs]

request for transfer remains final. On April 19, 2012, Plaintiff wrote to Defendant Rice, the

Nassau County District Attorney, asking if she continued to oppose his transfer, and, if so, why.

In a letter dated April 24, 2012, Defendant Sternberg, a Nassau County Assistant District

Attorney, wrote that Defendant Rices position on [his] transfer request continues to be [] as

explained in previous correspondence with [DOCCS], but the letter did not explain why

Defendant Rice held that position.

Plaintiff alleges, as to the victim and his family, that they have conspired with,

participated with[,] and joined Defendants Rice, Teichman, and Sternberg (the prosecutor

Defendants) in their retaliatory actions against [Plaintiff,] namely, their efforts to make sure

Plaintiffs requests for a transfer have been denied. He alleges that the victim and his family

have had private communication with the prosecutor Defendants as to his requests for a

transfer. He also alleges that the prosecutor Defendants acted as the representatives of [the

victim and his family] in communicating [their] objections to [D]efendant Annucci. In

addition, he alleges that the prosecutor Defendants and the victim and his family used joint

objection[s] for opposing [his] transfer, and [D]efendant Teichman[] specifically used [the

victim and his familys] objections to buttress his own objections. Also, he alleges that the

prosecutor Defendants and the victim and his family coordinated with each other when to

object and when not to object to [his] transfer. Plaintiff alleges that the victim and his family

did not object to his latest transfer request in early 2011. But after Plaintiff commenced a state

habeas corpus proceeding in August 2011, and filed a state court motion in October 2011

alleging that the prosecutor hid exculpatory evidence and that the victim provided perjured

identification testimony during Plaintiffs criminal trial, Defendants Annucci and Sternberg

relied on the objections of the victim and his family to oppose Plaintiffs request for a transfer.

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Plaintiff also alleges that Defendants Annucci, Fischer, Rice, Teichman, and Sternberg

retaliated against him with regard to his 2011 prisoner transfer request. In addition, he alleges

that Defendants Obama, Holder, and Wolff have violated his constitutional rights as to a treaty

by not considering and/or granting his prison transfer request despite state officials objection to

such a transfer.

DISCUSSION

A. The victim and his family

Plaintiffs claims against the victim and his family, to the extent that they are construed

to be claims raised under 42 U.S.C. 1983, must be dismissed. To state a claim under 1983, a

plaintiff must allege both that: (1) a right secured by the Constitution or laws of the United States

was violated, and (2) the right was violated by a person acting under the color of state law. West

v. Atkins, 487 U.S. 42, 48 (1988). Thus, a plaintiff must allege that he was injured by either a

state actor or a private party acting under color of state law. Ciambriello v. Cnty. of Nassau,

292 F.3d 307, 323 (2d Cir. 2002); see Tancredi v. Metro. Life Ins. Co., 378 F.3d 220, 229 (2d

Cir. 2004).

For private activity to be deemed state action, there must be a sufficiently close nexus

between the State and the challenged action of the [private] entity so that the action of the latter

may be fairly treated as that of the State itself. Tancredi, 378 F.3d at 229 (quoting Jackson v.

Metro. Edison Co., 419 U.S. 345, 351 (1974) (internal quotation marks omitted, alteration in

original)).

A challenged activity by a private entity may be deemed state action when the stateexercises coercive power, is entwined in [the] management or control of theprivate actor, or provides the private actor with significant encouragement, eitherovert or covert, or when the private actor operates as a willful participant in jointactivity with the State or its agents, is controlled by an agency of the State, hasbeen delegated a public function by the state, or is entwined with governmentalpolicies.

Cranley v. Natl Life Ins. Co. of Vt., 318 F.3d 105, 112 (2d Cir. 2003) (quoting Brentwood Acad.

v. Tenn. Secondary Sch. Athletic Assn, 531 U.S. 288, 296 (2001) (alteration in original)). A

5


complaint that merely alleges that private actors acted in concert with government officials to

violate a plaintiffs constitutional rights does not satisfy the state action requirement; a meeting

of the minds or intent to conspire between the private defendants and state actors is necessary.

Dahlberg v. Becker, 748 F.2d 85, 93 (2d Cir. 1984); see also Ciambriello, 292 F.3d at 324 (A

merely conclusory allegation that a private entity acted in concert with a state actor does not

suffice to state a 1983 claim against the private entity.); cf. Lane v. Papadimitirious, No. 10

Civ. 0647, 2010 WL 2803490, at *6 (N.D.N.Y. June 18, 2010) (Plaintiff makes claims against

the civilian victim or complainant in the charges against him . . . . [Defendants] report and

written statement, even if false, do not establish that she acted as part of a conspiracy with police

to violate any of plaintiffs constitutional rights. On the contrary, plaintiffs allegations are

wholly conclusory and insufficient to establish that [defendant] was acting under color of state

law.), report & recommendation adopted, 2010 WL 2803468 (N.D.N.Y July 14, 2010);

Szekeres v. Schaeffer, 304 F. Supp. 2d 296, 310-11 (D. Conn. 2004) (private person not a state

actor if she compels or pressures a police detective to seek an arrest warrant, or misrepresents

herself as a court official, to wit: [a] Victim Advocate. . . . absent some indication that the

State exercised coercive power over her or provided significant encouragement, either overt or

covert, for her actions. . . .); Jenkins v. Leonardo, No. 90 Civ. 3266, 1992 WL 176665, at *6

(S.D.N.Y July 16, 1992) (in habeas corpus analysis of Sixth and Fourteenth Amendment rights,

sex crime victim not a state agent when given instructions by police with respect to recording

a telephone conversation with the petitioner), affd on other grounds, 991 F.2d 1033 (2d Cir.

1993).

Plaintiffs conclusory allegations as to the victim and his family, all private individuals,

do not plausibly demonstrate that the State of New York, or any state actor-Defendant, including

any of the prosecutor Defendants, exercise[d] coercive power[over the victim and/or members

of his family,] . . . [were] entwined [in] [the] management or control of [any of them], or

provide[d any of them] with significant encouragement, either overt or covert with respect to

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violations of Plaintiffs federal rights. Cranley, 318 F.3d at 112 (fifth alteration in original,

citation omitted). In addition, Plaintiffs allegations do not plausibly demonstrate that the victim

and/or any members of his family operate[d] as a willful participant in joint activity with the

State or its agents, [were] controlled by an agency of the State, [were] delegated a public

function by the [S]tate, or [were] entwined with governmental policies in regard to violations

of Plaintiffs federal rights. Id. (citation omitted). Plaintiffs 1983 claims against the victim

and his family therefore are dismissed for failure to state a claim on which relief may be granted.

28 U.S.C. 1915(e)(2)(B)(ii).

B. Retaliation claims

1. Defendants Annucci and Fischer

To the extent that Plaintiff raises First Amendment claims of retaliation against

Defendant Annucci, arising out of Defendant Annuccis July 28, 2011 denial of Plaintiffs 2011

transfer request, such claims must be dismissed. In addition, to the extent that Plaintiff alleges

that Defendant Fischer, as Defendant Annuccis supervisor, was liable for such retaliation due to

his acquiescence to Defendant Annuccis July 28, 2011 transfer denial, such claims must be also

be dismissed.

The elements of a First Amendment retaliation claim are: (1) . . . the speech or conduct

at issue was protected, (2) . . . the defendant took adverse action against the plaintiff, and (3) . . .

there was a causal connection between the protected speech [or conduct] and the adverse action.

Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir. 2004) (internal quotation marks and citation

omitted). The Second Circuit has warned, however, that:

claims by prisoners that particular administrative decisions have been made forretaliatory purposes are prone to abuse. Virtually every prisoner can assert such aclaim as to every decision which he or she dislikes. . . . [A] complaint which allegesretaliation in wholly conclusory terms may safely be dismissed on the pleadingsalone. In such a case, the prisoner has no factual basis for the claim other than anadverse administrative decision and the costs of discovery should not be imposed ondefendants.

Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983).

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Plaintiff alleges that Defendant Annucci, and by implicit extension, his supervisor,

Defendant Fischer, denied his transfer request on July 28, 2011, because of Plaintiffs previous

numerous administrative and court complaints about Defendant Annucci between 2008 and

2011, including Plaintiffs letters to Governors Pataki and Spitzer, and to President Bush, his

Article 78 and other proceedings in state court, his DOCCS grievances, his efforts to have

Defendant Annucci disbarred from the practice of law, and his efforts to have Defendant

Annucci criminally prosecuted.

Assuming that at least some of Plaintiffs speech and conduct mentioned above is

protected by the First Amendment, and assuming that the July 28, 2011 transfer denial

constituted adverse action, see Wong v. Warden, FCI Raybrook, 999 F. Supp. 287, 290

(N.D.N.Y. 1998) (discussing that a prisoner is protected from retaliation, including denial of an

international prison transfer, for the exercise of his constitutional rights), affd, 171 F.3d 148 (2d

Cir. 1999), Plaintiff has failed to allege facts that plausibly demonstrate a causal connection

between the protected speech or conduct and the adverse action. While temporal proximity

between an inmates [protected act] and [the adverse act] may serve as circumstantial evidence

of retaliation[,] Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995), where, as here, Plaintiff

alleges that Defendants adverse conduct began before he engaged in protected activity, no

inference of causation arises as a result of temporal proximity.

Plaintiff alleges that beginning in 2000 well before he began his alleged protected

speech or activity against Defendant Annucci and continuing to July 28, 2011, Defendant

Annucci repeatedly denied his requests for a prison transfer. Because the course of conduct of

which Plaintiff complains began before his protected activity, his allegations do not raise an

inference of any causal connection between his alleged protected activity and Defendant

Annuccis July 28, 2011 denial of his request for a prisoner transfer. See Reynolds v. Barrett,

741 F. Supp. 2d 416, 435 (W.D.N.Y. 2010) (causation element of prisoners 1983 retaliation

claim arising out of his removal from his prison job undercut by criticisms of job performance

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prior to protected activity), affd on other grounds, 685 F.3d 193 (2d Cir. 2012); id. (citing

Kasper v. Federated Mut. Ins. Co., 425 F.3d 496, 504 (8th Cir. 2005) (in employment law

context, [e]vidence of an employers concerns about an employees performance before the

employees protected activity undercuts a finding of causation)); see also Bernard v. JP

Morgan Chase Bank NA, 408 F. Appx 465, 469 (2d Cir. 2011) ([W]here timing is the only

basis for a claim of retaliation, and gradual adverse job actions began well before the plaintiff

had ever engaged in any protected activity, an inference of retaliation does not arise.) (internal

quotation marks and citation omitted)); Giudice v. Red Robin Intl, Inc., No. 11 Civ. 6099, 2013

WL 749672, at *11 (W.D.N.Y. Feb. 27, 2013) ([T]here can be no inference of causation where,

as here, [the employer] has a history of disciplinary actions against Plaintiff[] before he engaged

in the protected activity.); Williams v. Time Warner, Inc., No. 09 Civ. 2962, 2010 WL

846970, at *6 (S.D.N.Y. Mar. 3, 2010) (same), affd, 440 F. Appx 7 (2d Cir. 2011). Plaintiff

alleges no other facts that plausibly demonstrate any causation, therefore, Plaintiffs retaliation

claims against Defendants Annucci, and by extension, Defendant Fischer, are dismissed for

failure to state a claim on which relief may be granted. See 1915(e)(2)(B)(ii).

2. Defendants Rice, Teichman, & Sternberg

To the extent that Plaintiff raises First Amendment claims of retaliation against

Defendants Rice, Teichman, and Sternberg, arising out of their opposition to Plaintiffs 2011

prison transfer request, such claims must also be dismissed. Plaintiff alleges that prior to his

2011 prisoner transfer request, in a letter dated October 14, 2008, Defendant Teichman, on

behalf of Defendant Rice and the victim and his family, opposed his transfer. Plaintiff also

alleges that in August 2011, he filed a habeas corpus petition in state court challenging his

conviction. That petition was denied but an appeal is pending.4 Plaintiff alleges that Defendants

Rice, Teichman, and Sternberg did not, when there were then no pending court challenges to his

4 Defendant Sternberg may have represented or continues to represent New York Stateduring the Plaintiffs state habeas corpus proceeding, as Plaintiff alleges that since 1997[,][Defendant Sternberg has] represented the [state] in defending the validity of [his] conviction[.]

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conviction, oppose his 2011 prison transfer request. In October 2011, either during the pendency

of his state habeas corpus proceeding or thereafter, Plaintiff filed a motion in state court arguing

that the prosecutor unlawfully hid from the judicial process exculpatory evidence . . . and that

[the victim] provided perjured identification testimony at trial. Defendant Sternberg, in

representing the state, opposed that motion, and opposed Plaintiffs later application to appeal

the denial of that motion. Plaintiff alleges that after he filed that motion, Defendant Annucci

changed tack and . . . invoked Defendant Rices objection to deny his 2011 prison transfer

request. Plaintiff also alleges that only after he filed that motion did Defendant Sternberg, who,

up until that time, had not been involved in objecting to his prison transfer requests, got involved

by writing a April 19, 2012 letter to him, expressing Defendant Rices continued objection to

Plaintiffs transfer. He alleges that Defendants Rice and Sternberg adopted Defendant

Teichmans October 14, 2008 objections as their own.

Plaintiffs First Amendment retaliation claims against these Defendants fail for reasons

similar to those discussed above with regard to Defendants Annucci and Fischer. Assuming that

Plaintiffs October 2011 state court motion is protected First Amendment activity, and assuming

for the purpose of this order that the objections of Defendants Rice, Teichman, and Sternberg

were adverse actions, see Smith v. Levine, No. 11-1445, 2013 WL 362905, at *3 (2d Cir. Jan.

31, 2013) (summary order slip op.) (An adverse action is conduct that would deter a similarly

situated individual of ordinary firmness from exercising . . . constitutional rights.) (quoting

Gill, 389 F.3d at 381)), Plaintiff fails to demonstrate a causal connection between the protected

activity and the adverse action. Defendant Rice, first through Defendant Teichman in 2008, and

after Plaintiffs 2011 prison transfer request, through Defendant Sternberg, continued to oppose

his prison transfer. As discussed above, no inference of causation arises from the temporal

proximity of the events, and Plaintiff alleges no other facts that would show a causal connection

when the adverse action began before the continued activity and continued thereafter. See supra

at 7-9. Therefore, Plaintiffs First Amendment retaliation claims against Defendants Rice,

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Teichman, and Sternberg are dismissed for failure to state a claim on which relief may be

granted.5 See 1915(e)(2)(B)(ii).

C. Remaining constitutional claims

Plaintiffs remaining allegations do not rise to the level of a federal constitutional

violation. As stated above, to state a claim under 1983, a plaintiff must allege both that: (1) a

right secured by the Constitution or laws of the United States was violated, and (2) the right was

violated by a person acting under the color of state law. West, 487 U.S. at 48 (1988). With

regard to claims made under Bivens, the Supreme Court recognized . . . an implied private

action for damages against federal officers alleged to have violated a citizens constitutional

rights. Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009) (quoting Corr. Servs. Corp. v. Malesko, 534

U.S. 61, 66 (2001)). Mindful of the Courts duty to construe pro se actions liberally, the Court

has analyzed Plaintiffs remaining allegations and finds no deprivation of a federal constitutional

right. As such, Plaintiffs remaining constitutional claims are dismissed for failure to state a

claim on which relief may be granted, 1915(e)(2)(B)(ii), as they lack[] an arguable basis

either in law or in fact. Neitzke, 490 U.S. at 325.

D. Mandamus and Administrative Procedure Act relief

To the extent that Plaintiffs claims seeking an order directing Defendants Obama,

Holder, or Wolff to consider or grant Plaintiffs request for a prison transfer can be construed as

5 To the extent that Plaintiff raises damages claims against Defendant Sternberg arising outof her prosecution of Plaintiffs criminal action and/or her representation of the state in his statehabeas corpus action, such claims are dismissed as frivolous and because Defendant Sternbergimmune from suit for such relief. See 1915(e)(2)(B)(i), (iii). Defendant Sternberg is immunefrom suit for damages for such tasks under the doctrines of prosecutorial and governmentattorney immunity. See Imbler v. Pachtman, 424 U.S. 409, 424-30 (1976) (prosecutorialimmunity); Mangiafico v. Blumenthal, 471 F.3d 391, 396 (2d Cir. 2006) (discussing extension ofabsolute immunity to government attorneys acting as the defense in civil actions); see alsoCollazo v. Pagano, 656 F.3d 131 (2d Cir. 2011) (sua sponte dismissal of action against aprosecutor for initiating a prosecution or presenting the prosecutions case is consideredfrivolous under 28 U.S.C. 1915(g)); Montero v. Travis, 171 F.3d 757, 760 (2d Cir. 1999)(holding, in the in forma pauperis context, that [a] complaint will be dismissed as frivolouswhen it is clear that the defendants are immune from suit (quoting Neitzke v. Williams, 490U.S. 319, 327 (1989)).

11


claims for mandamus relief under 28 U.S.C. 1361 and/or relief under the Administrative

Procedure Act (APA), 5 U.S.C. 701, et seq., such claims must be dismissed. A writ of

mandamus is an extraordinary judicial remedy. Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33,

34 (1980) ([T]he remedy of mandamus is a drastic one, to be invoked only in extraordinary

situations[.]). A writ of mandamus will not issue unless (1) the plaintiff[ has] a right to have

the act performed, (2) the defendant is under a clear nondiscretionary duty to perform the act

requested[,] and (3) [the] plaintiff has exhausted all other avenues of relief. City of New York v.

Heckler, 742 F.2d 729, 739 (2d Cir. 1984). The APA provides for judicial review of federal

agency decisions, 5 U.S.C. 702, but not decisions committed to agency discretion by law[,] 5

U.S.C. 701(a)(2).

The United States and Romania are both parties to a treaty known as the Convention on

the Transfer of Sentenced Persons, Mar. 21, 1983, T.I.A.S. No. 10824, 35 U.S.T. 2867

(Convention).6 The Convention entered into force for the United States in 1985 and for

Romania in 1996. See Council of Europe, Convention of the Transfer of Sentenced Persons,

http://www.conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=112&CM=1&DF=&CL=

ENG (last visited Apr. 11, 2013). The Convention does not outline any criteria that a [country]

must consider in deciding whether to approve an international transfer. Yosef v. Killian, 646 F.

Supp. 2d 499, 505 (S.D.N.Y. 2009); see Bagguley v. Bush, 953 F.2d 660, 662 (D.C. Cir. 1991).

In 1977, prior to the United States becoming a party to the Convention, Congress passed the

Transfer of Offenders To and From Foreign Countries Act (the Act), 18 U.S.C. 4100, et seq.,

regulating international prisoner transfers pursuant to then-current and future treaties in which

the United States was or would be a party. See 18 U.S.C. 4101(k) (defining treaty as a

treaty under which an offender sentenced in the courts of one country may be transferred to the

country of which he is a citizen or national for the purpose of serving the sentence); Scalise v.

6 Apparently, because this treaty was signed in Strasbourg, France, Plaintiff refers to it in hiscomplaint as the Strasbourg Convention.

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Thornburgh, 891 F.2d 640, 642 n.2 (7th Cir. 1989). [T]he Act authorizes the Attorney General,

acting on behalf of the United States, to transfer offenders [and] it does not contain any limits on

the exercise of the Attorney Generals discretion. Yosef, 646 F. Supp. 2d at 505 (citing 18

U.S.C. 4102(1), (3)); see Bagguley, 953 F.2d at 661 (The Act authorizes the Attorney General

to implement the Convention.); Scalise, 891 F.2d at 642 (Under . . . the Act, the Attorney

General is granted the authority to implement the Convention.). The Attorney General may

delegate the authority conferred by [the Act] to officers of the Department of Justice. 18

U.S.C. 4102(11); Wong, 999 F. Supp. at 289. With regard to state prisoners, the Attorney

General, and his designates within the Department of Justice, are authorized:

to make arrangements by agreement with the States for the transfer of offenders intheir custody who are citizens or nationals of foreign countries to the foreigncountries of which they are citizens or nationals and for the confinement, whereappropriate, in State institutions of offenders transferred to the United States[.]

18 U.S.C. 4102(6) (emphasis added). The Act grants the Attorney General, and his designates,

great discretion with regard to international prison transfers. See Yosef, 646 F. Supp. 2d at 505,

Bagguley, 953 F. 2d at 662 ([T]he Act and the [Convention] give the Attorney General

unfettered discretion with respect to transfer decisions[.]); see also Scalise, 891 F.2d at 645

([T]his discretion which Congress has bestowed upon the Attorney General in carrying out his

duties under the Act is reasonable in light of the unique nature of prisoner transfer decisions.).

By the plain language of the Act, a decision of the Attorney General, or his designates, to

transfer a state prisoner to another country cannot be made until the custodial state agrees to the

transfer. See 4102(6).

Plaintiff cannot receive mandamus relief against Defendant Obama, Defendant Holder, or

Defendant Holders apparent designate, Defendant Wolff (federal defendants), because

Plaintiff does not have a right to have the federal defendants perform the act(s) he seeks. In

other words, his complaint fails to allege facts demonstrating satisfaction of the first element of

mandamus analysis. See Heckler, 742 F.2d at 739. This is because, to the extent that Plaintiff

wants the consideration or the granting of his request for a prison transfer, 4102(6) bars the

13


federal defendants from considering Plaintiffs request and transferring him without the

agreement of New York State officials.

Plaintiffs allegations also fail as to the second mandamus element. None of the federal

defendants is under a clear nondiscretionary duty to perform the act requested[,] id., if he/she

is barred from carrying out such an act without state approval. See 4102(6). Also, even if such

agreement was procured, as discussed above, decisions regarding international prison transfers

are wholly discretionary. See Heckler, 742 F.2d at 739; see also Scalise, 891 F.2d at 647-49

(denying mandamus relief to American citizen-prisoners attempting to force the Attorney

General to promulgate regulations regarding the transfer of such prisoners from foreign countries

to the United States because such an act was discretionary). Thus, not only is mandamus relief

not cognizable here, but also Plaintiff cannot seek APA relief with regard to the federal

defendants decisions regarding the consideration and granting of his prison transfer request,

because such discretionary decisions have been conferred to federal officials by law, making

APA relief unavailable. See 5 U.S.C. 701(a)(2); Yosef, 646 F. Supp. 2d at 508-09; Bagguley,

953 F.2d at 662; Scalise, 891 F.2d at 648-49. Thus, Plaintiffs claims against Defendants

Obama, Holder, and Wolf, in which he seeks mandamus and/or APA relief forcing them to at

least consider, if not grant his prison transfer request are therefore dismissed for failure to state a

claim on which relief may be granted. See 1915(e)(2)(B)(ii).

E. Supplemental jurisdiction

To the extent that Plaintiff raises additional state law claims under the Courts

supplemental jurisdiction, such claims are dismissed. Under 28 U.S.C. 1367(c)(3), a district

court may decline to exercise supplemental jurisdiction over state law claims when it has

dismissed all claims over which it has original jurisdiction. 28 U.S.C. 1367(c)(3). Because

none of Plaintiffs claims discussed above can survive dismissal, and because such claims are the

only ones over which the Court has original jurisdiction, the Court declines to exercise

supplemental jurisdiction over whatever state law claims Plaintiff attempts to raise in his

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complaint. See Martinez v. Simonetti, 202 F.3d 625, 636 (2d Cir. 2000) (directing dismissal of

supplemental state law claims where no federal claims remained).

CONCLUSION

The Clerk of Court is directed to assign this matter to my docket and to mail a copy of

this order to Plaintiff, noting its service on the docket. Plaintiffs complaint, filed in forma

pauperis under 28 U.S.C. 1915(a)(1), is dismissed pursuant to 28 U.S.C. 1915(e)(2)(B)(ii)

for failure to state a claim on which relief may be granted. Plaintiffs ex parte motion, therefore,

is denied as moot.

The Court certifies under 28 U.S.C. 1915(a)(3) that any appeal from this order would

not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an

appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

SO ORDERED:

Dated: April 23, 2013 New York, New York

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ciaprazi dismissal order released 5-31-2013 from judge loretta preska

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