Soto v. Central Intelligence Agency et al
MEMORANDUM & ORDER granting 21 Motion to Dismiss for Lack of Jurisdiction. For the reasons discussed in the attached Memorandum and Order, the Court dismisses the petition for lack of jurisdiction. The Court will not issue a certificate of appeal ability. See 28 U.S.C. § 2253. The Court grants Petitioner thirty (30) days from the date of this Memorandum and Order to file a second amended petition and request that the Court construe the second amended petition as an action for da mages under 42 U.S.C. § 1983. If Petitioner fails to file a second amended petition and request conversion to a section 1983 claim, the Court will dismiss the petition for the reasons set in the attached Memorandum and Order. The Court certifi es pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and in forma pauperis status is denied for the purpose of an appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962). Ordered by Judge Margo K. Brodie on 9/1/2017. (Hawkins, Salah)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------ALEXANDER ANTHONY SOTO,
NOT FOR PUBLICATION
MEMORANDUM & ORDER
SOUTH BEACH PSYCHIATRIC CENTER,
--------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
Petitioner Alexander Anthony Soto, proceeding pro se, filed the instant petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254 on February 12, 2016, seeking release from his
involuntary commitment at South Beach Psychiatric Center (“South Beach”) in Staten Island,
New York. (Pet., Docket Entry No. 1.) Petitioner filed an amended petition on March 30, 2016.
(Am. Pet., Docket Entry No. 10-1.) Petitioner also filed a motion for summary judgment seeking
a “writ of habeas corpus.” (Pet’r Mot. for Summ. J., Docket Entry Nos. 7, 8.) Because
Petitioner is proceeding pro se, the Court construed Petitioner’s motion for summary judgment
and the amended petition together as seeking the same habeas corpus relief. (Order to Show
Cause (“OSC”) 1–2, Docket Entry No. 14.) By order dated May 5, 2016, the Court ordered
Respondent to show cause as to why the Court should not grant the amended petition. (OSC 4–
5.) Respondent moves to dismiss the amended petition for lack of jurisdiction. (Resp’t Mot. to
Dismiss (“Resp’t Mot.”), Docket Entry No. 21; Resp’t Mem. of Law in Supp. of Resp’t Mot.
(“Resp’t Mem.”), Docket Entry No. 21-2.) For the reasons discussed below, the Court dismisses
the petition for lack of jurisdiction and grants Petitioner leave to file a second amended petition
and request that the Court convert the second amended petition to an action for damages under
42 U.S.C. § 1983.1
In November of 2015, Petitioner was arrested in Queens, New York, after an officer
observed him walking with a duffle bag with a saw protruding from it. (Sealed Record (“SR”) 9,
Docket Entry No. 22.) Petitioner was charged with possession of a burglar’s tool in violation of
New York Penal Law section 140.35. (Id.) The New York Supreme Court, Queens County,
found Petitioner mentally incompetent to stand trial pursuant to New York Criminal Procedure
Law section 730, and the charges against Petitioner were dismissed. (Id.; Decl. of Priscilla
Stewart (“Stewart Decl.”) ¶ 1, Docket Entry No. 21-1; Pet’r Affirmation for Summ. J. (“Pet’r
Affirmation”) ¶¶ 3, 5, 8, Docket Entry No. 7.) Under section 730, the Queens County Court
involuntarily committed Petitioner to South Beach. (Stewart Decl. ¶ 1; Am. Pet. 6–7, ¶¶ 23–
In February of 2016, South Beach filed an application with the New York Supreme
Court, Richmond County to extend Petitioner’s involuntary commitment to September of 2016,
which application the Richmond County Court granted. (Record (“R.”) 20, Docket Entry
No. 21-3.) Petitioner, proceeding pro se, appealed the Richmond County Court’s order to the
New York Supreme Court, Appellate Division, Second Department (the “Appellate Division”).
(SR 26–31.) The Appellate Division appointed counsel to assist Petitioner in his appeal.
(SR 32–33.) On August 9, 2016, while Petitioner’s appeal was pending, Petitioner was
The Court grants Petitioner’s request to proceed in forma pauperis for the purpose of
this Memorandum and Order.
Because Petitioner’s amended petition does not contain consecutively numbered
paragraphs, the Court references both the page and paragraph numbers when citing to the
discharged from South Beach. (SR 34–37.) On October 25, 2016, the Appellate Division
directed Petitioner and South Beach to show cause as to why the Appellate Division should not
dismiss Petitioner’s appeal on mootness grounds because Petitioner’s involuntary commitment
ended. In the Matter of Alexander S., No. 2016-06498, (N.Y. App. Div. Jan. 3, 2017), http://ww
w.courts.state.ny.us/courts/ad2//Handdowns/2017/Motions/M223775.pdf. On January 3, 2017,
the Appellate Division dismissed Petitioner’s appeal. Id.
Petitioner alleges that South Beach violated his Fourteenth Amendment right to due
process by denying him access to an attorney of his choice after he was involuntarily committed,
(Am. Pet. 8, ¶ 30), prohibiting him from appealing the commitment order, (Pet’r Affirmation
¶ 6), and forcibly medicating and confining him without proper process, (id. ¶¶ 13–14).
Standard of review
Under 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA), an application for a writ of habeas corpus by a person in custody
pursuant to a state court judgment may only be brought on the grounds that his or her custody is
“in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a);
see also Buthy v. Comm’r of Office of Mental Health of N.Y. State, 818 F.2d 1046, 1051–52
(2d Cir. 1987) (“There is no question about the appropriateness of habeas corpus as a method of
challenging involuntary commitment to a mental institution.” (collecting cases)); Best v.
Barbarotta, No. 12-CV-6218, 2016 WL 1588501, at *2 (E.D.N.Y. Apr. 19, 2016) (“A federal
petition for a writ of habeas corpus, following the exhaustion of all available state remedies, is
the proper vehicle by which an individual can challenge his or her involuntary commitment or
retention in a mental institution.” (internal quotation marks omitted) (quoting Nyenekor v. New
York, No. 09-CV-8719, 2014 WL 785690, at *8 (S.D.N.Y. Feb. 25, 2014))). When a petitioner
attacking his or her confinement is proceeding pro se, the Court must “read [the petitioner’s]
submissions broadly so as to determine whether they raise any colorable legal claims.” United
States v. Parisi, 529 F.3d 134, 139 (2d Cir. 2008) (citing Weixel v. Bd. of Educ., 287 F.3d 138,
145–46 (2d Cir. 2002)).
Respondent argues that the Court should dismiss the petition for lack of jurisdiction
because Petitioner has been released from South Beach, which moots the petition. (Resp’t Mem.
3–5.) Petitioner has not responded to the motion.
Federal courts are limited in jurisdiction to cases that present a live case or controversy.
See Spencer v. Kemna, 523 U.S. 1, 7 (1998). “In order for a federal court to have jurisdiction
over a habeas petition, the petitioner must be in custody pursuant to the judgment of a State
court.” Nowakowski v. New York, 835 F.3d 210, 215 (2d Cir. 2016) (first quoting 28 U.S.C.
§ 2254(a); and then citing Maleng v. Cook, 490 U.S. 488, 490–91 (1989)). After a petitioner has
been released from state custody, the habeas petition is moot and a federal court lacks
jurisdiction over the petition challenging the conviction or confinement unless the petitioner
alleges that he or she suffers from concrete and continuing injuries beyond the now-completed
confinement. Spencer, 523 U.S. at 7; see also Nowakowski, 835 F.3d at 217–18 (citing Spencer,
523 U.S. at 7).
Because Petitioner has been released from South Beach and the Court is unable to
determine whether Petitioner suffers any continuing, collateral consequences as a result of the
previous commitment, the petition is moot and the Court lacks jurisdiction over the petition. See
Best, 2016 WL 1588501, at *3 (finding that a petition was moot where the petitioner had been
released from his involuntary commitment and failed to identify “any collateral consequences
that continue beyond his release from involuntary commitment”); Nyenkor, 2014 WL 785690, at
*9 (finding that a petition was moot because the petitioner “has been released from the custody
of the [New York Office of Mental Health]” and therefore the court “[could] not  release [the]
petitioner from such custody”); Meyers v. Williams, No. 10-CV-620, 2011 WL 721647, at *2
(E.D.N.Y. Feb. 22, 2011) (“As [the petitioner] is no longer involuntarily confined relative to his
claims in the instant petition, the case is dismissed as moot.”); Hunter v. Gipson, 534 F. Supp.
2d 395, 398–99 (W.D.N.Y. 2008) (finding that, where a petitioner was released from his
involuntary commitment, the petitioner “cannot be confined again for the purpose of evaluating
his competency to stand trial on these criminal charges and therefore the claims in the  petition
have been mooted”).
Leave to amend
In the event Petitioner seeks monetary relief for the constitutional violations alleged in
the petition, an action may be proper under 42 U.S.C. § 1983 against the individual persons who
were allegedly responsible for violating Petitioner’s constitutional rights. Because petitioner is
proceeding pro se, the Court grants Petitioner leave to file a second amended petition against the
individuals who allegedly violated Petitioner’s constitutional rights, and, if Petitioner is seeking
damages, Petitioner must request that the Court convert the second amended petition to an action
for damages under section 1983. See Cody v. Henderson, 936 F.2d 715, 723 (2d Cir. 1991)
(remanding “the case to allow [the petitioner] the option of recasting his habeas corpus petition
as a suit for damages under 42 U.S.C. § 1983”); Hammond v. Conway, No. 07-CV-1042, 2007
WL 3036866, at *2 (E.D.N.Y. Oct. 16, 2007) (“Courts have granted leave to convert habeas
petitions into actions for damages under 42 U.S.C. § 1983.” (collecting cases)); see also Ariola v.
LaClair, No. 08-CV-116, 2014 WL 4966748, at *1 (N.D.N.Y. Sept. 30, 2014) (construing a
petitioner’s request for monetary relief from civil rights violations as a complaint alleging a
cause of action under section 1983); Meyers v. Health & Hosp. Corp., No. 13-CV-1258, 2014
WL 4160796, at *2 (E.D.N.Y. Mar. 28, 2014) (converting a habeas petition to a section 1983
action because petitioner had requested injunctive relief and damages), report and
recommendation adopted, 2014 WL 4161975 (E.D.N.Y. Aug. 19, 2014); Tafari v. Rock,
No. 11-CV-57, 2012 WL 1424725, at *1, *3 (W.D.N.Y. Apr. 24, 2012) (granting a petitioner’s
motion to convert his petition to a section 1983 action); Miller v. Reily, No. 06-CV-6485, 2007
WL 433394, at *1 (E.D.N.Y. Feb. 5, 2007) (noting that a court may convert a “petition to a
complaint under [s]ection 1983” if a plaintiff seeks “relief that is not cognizable under habeas
For the foregoing reasons, the Court dismisses the petition for lack of jurisdiction. The
Court will not issue a certificate of appealability. See 28 U.S.C. § 2253. The Court grants
Petitioner thirty (30) days from the date of this Memorandum and Order to file a second
amended petition and request that the Court construe the second amended petition as an action
for damages under section 1983. If Petitioner fails to file a second amended petition and request
conversion to a section 1983 claim, the Court will dismiss the petition for the reasons set forth
above. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order
would not be taken in good faith and in forma pauperis status is denied for the purpose of an
appeal. Coppedge v. United States, 369 U.S. 438, 444–45 (1962).
MARGO K. BRODIE
United States District Judge
Dated: September 1, 2017
Brooklyn, New York
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