Rosario v. N.Y.C. Dept. of Correction et al
Filing
29
OPINION & ORDER: re: 19 MOTION to Dismiss. Plaintiff Jose Rosario, proceeding pro se, brings this lawsuit, pursuant to 42 U.S.C. 1983, against defendants New York City (the "City of New York") and Warden Carlton Newton, alleging that his confinement in the custody of the New York City Department of Correction ("DOC"), after the state parole board had approved him for parole, violated his constitutional rights to due process and equal protection. Defendants move to dismiss the Complaint for failure to state a claim. For the reasons that follow, the motion is granted. Defendants' motion to dismiss the Complaint is granted. 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 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). The Clerk of Court is directed to terminate the motion at docket number 19 and to close the case. SO ORDERED. (Signed by Judge Paul A. Engelmayer on 5/15/2013) (rsh)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------------------------------------------}(
JOSE ROSARIO,
12 Civ. 4795 (PAE)
Plaintiff,
OPINION & ORDER
-v-
NEW YORK CITY and WARDEN CARLTON
NEWTON,
Defendants.
x
PAUL A. ENGELMA YER, District Judge:
Plaintiff Jose Rosario, proceeding pro se, brings this lawsuit, pursuant to 42 U.S.C.
§ 1983, against defendants New York City (the "City of New York") and Warden Carlton
Newton, alleging that his confinement in the custody of the New York City Department of
Correction ("DOC"), after the state parole board had approved him for parole, violated his
constitutional rights to due process and equal protection. Defendants move to dismiss the
Complaint for failure to state a claim. For the reasons that follow, the motion is granted.
I.
Background I
A. Factual Background
The facts underlying Rosario's detention in DOC custody, and the allegations stemming
from that detention, are scattered in bits and pieces throughout his submissions. Pieced together
and construed liberally, the facts relevant to Rosario's claims, in this case,2 are as follows.
On December 15, 1989, Rosario was convicted of criminal possession of a controlled
substance in the second degree in Supreme Court, New York County, and sentenced to a term of
I The following account of the facts is drawn primarily from the Complaint. However, because
Rosario is proceeding pro se, the Court also considers factual allegations contained in Rosario's
two submissions in opposition to defendants' motion to dismiss, to the extent consistent with the
Complaint. See, e.g., Braxton v. Nichols, No. 08 Civ. 8568 (PGG), 2010 WL 1010001, at * 1
(S.D.N.Y. Mar. 18,2010) (collecting cases); see also Gill v. Mooney, 824 F.2d 192, 195 (2d Cir.
1987) (considering, in addition to allegations in complaint, pro se plaintiff's affidavit in
opposition to motion to dismiss). Those two submissions are: (1) a document, filed on February
14,2013, entitled "Notice of Motion to Deny Motion to Dismiss," see Dkt. 25 ("Rosario Br.");
and (2) a declaration filed on April 12,2013, see Dkt. 28 ("Rosario Decl.").
The Court also takes judicial notice of information obtained via the New York State Department
of Corrections and Community Supervision ("DOCCS") Inmate Lookup System and the
Connecticut State Department of Correction Offender Information Search. See Tribble v. City 0/
NY, No. 10 Civ. 8697 (JMF), 2013 WL 69229, at *1 n.l (S.D.N.Y. Jan. 3,2013); Williams v.
City o/NY, No. 07 Civ. 3764 (RJS), 2008 WL 3247813, at *2 n.3 (S.D.N.Y. Aug. 6,2008).
Finally, the Court takes judicial notice of the existence of a removal order issued against Rosario
on March 8, 2001 by an immigration court in Hartford, Connecticut. See Global Network
Commc'ns, Inc. v. City o/NY, 458 F.3d 150, 157 (2d Cir. 2006) (on motion to dismiss, court
may take notice of public records to establish their existence, not for the truth of the matters
asserted therein). A copy of that order (the "Removal Order") is attached as Exhibit A to the
January 14,2013 Declaration of John Buhta, see Dkt. 20 ("Buhta Decl.").
Because the pagination is inconsistent throughout Rosario's submissions, the Court's citations to
them refer to the page numbers reflected on ECF.
2 Many documents appended to Rosario's filings appear to relate to claims that Rosario has filed
against various defendants in different courts. See Rosario v. N. Y State Div. 0/ Parole, 923
N.Y.S.2d 367 (3d Dep't 2011); Rosario v. NY Div. o/Parole, No. 9:1O-CV-000I (LEKlRFT)
(N.D.N.Y. 2011); Rosario v. Denalver, No. 13 Civ. 999 (LAP) (S.D.N.Y. 2013).
2
five years to life. See Rosario Br. 12. On May 20, 1994, he was released to parole supervision.
ld. at 15.
In November 1999, Rosario, who is also known as William Pagan, see id. at 41, was
taken into Connecticut state custody. In July 2000, he was sentenced to a maximum term of 18
years. See Connecticut State Department of Correction, Offender Information Search ("CT
Inmate Lookup"), http://www.ctinmateinfo.state.ct.us/detailsupv.asp?id_inmt_num=278476 (last
visited May 15,2013).3
On December 22,2000, Rosario was briefly returned to Supreme Court, Bronx County,
where he was sentenced to a term of six years to life for criminal possession of a controlled
substance in the second degree. This resulted from a 1996 arrest. See DOCCS Inmate
Population Information Search ("NY Inmate Lookup"), http://nysdoccslookup.doccs.ny.gov (last
visited May 15,2013);4 see also Rosario v. NY State Div. o/Parole, 923 N.Y.S.2d 367 (3d
Dep't 2011). Rosario was then returned to Connecticut prison.
On March 8, 2001, an immigration court in Hartford issued an order of removal directing
that Rosario be removed to the Dominican Republic. Buhta Dec!. Ex. A (the "Removal Order").
He was not removed, however, and continued to serve his Connecticut sentence. On some date
in 2011 or 2012,5 Rosario was transferred into custody of the City ofNew York Department of
Rosario's information is accessible through this online resource by entering his CT DOC
inmate number, 278476, or by searching for William Pagan.
3
4 Rosario's information is accessible through this online resource by entering his New York State
Identification Number: 04269169P. See Compl. 12. The search yields three different entries for
Rosario, each relating to a different period of incarceration in DOCCS custody. The entry
corresponding to his current incarceration is labeled with the Department Identification Number
(DIN) 12R2233.
This date cannot be ascertained with certainty on the record before the Court. The Court notes
that, according to two decisions from other courts, Rosario remained in Connecticut custody as
5
3
Correction ("DOC"). See CT Inmate Lookup. The DOC held Rosario at the Otis Bantum
Correctional Center ("OBCC") on Rikers Island until July 9, 2012, when he was transferred to
the custody of the State of New York Department of Corrections and Community Supervision
("DOCCS"). See NY Inmate Lookup; see also Rosario Br. 3, 5 (listing July 9, 2012 as the end
of his detention in OBCC). Rosario continues to be held in the custody ofDOCCS at
Washington Correctional Facility. See NY Inmate Lookup; see also Rosario Decl. 6
(representing that, as of April 9, 2013, he continued to be held in DOCCS custody).
The documents attached to Rosario's submissions reflect several events bearing on his
parole status. These events are important to Rosario's allegations. First, on April 9, 2012,
Rosario received a notice from DOCCS, stating that he was in violation of the terms of his parole
and that a final hearing on the alleged parole violation would be held on April 19, 2012 at Rikers
Island. Rosario Br. 41; see also Compl. 4 (referring to parole violation warrant). The parole to
which this document refers appears to be Rosario's parole based on the 1989 conviction, because
it carries the Department Identification Number (DIN) associated with that conviction: 89T4927.
Compare Rosario Br. 41, with id. at 12, 15; see also NY Inmate Lookup. Second, as reflected in
another document attached to the Complaint, albeit one that is partly illegible, Rosario's final
parole hearing was, apparently, held on May 3, 2012 at Rikers Island. Compl. 10. Third, on
May 9, 2012, the state parole board sent Rosario a notice that it had granted parole for him. Id
at 12, 16. This notice also bears the DIN number associated with Rosario's 1989 conviction. Id
of early 2011. See Rosario v. NY State Div. ofParole, 923 N.Y.S.2d 367 (3d Dep't 2011)
(dated May 26, 2011); Rosario v. NY Div. ofParole, No. 9:10-CV-000I (LEKlRFT) (N.D.N.Y.
2011) (dated March 18,2011). Rosario's allegations in this Complaint suggest that he was in
DOC custody as early as April 2012. See Rosario Br. 41. Because Rosario does not challenge
his incarceration before April 2012, the exact date on which he was transferred is immaterial.
4
Rosario alleges that his continued detention, after he was granted parole, violated his due
process and equal protection rights. See CompI. 7-9. Rosario alleges that he sustained
psychological and emotional injuries stemming from this period of confinement. He seeks $1.5
million in compensatory damages for "illegal detention in prison, and psychological and mental
distress, emotion and anxiety anguish [sic], lack of sleep, and a great deal of stress." Id. at 18.
B. Procedural History
On June 18, 2012, Rosario filed his Complaint. Dkt. 2. On January 14, 2013, defendants
moved to dismiss. Okt. 19-21. On February 14,2013, Rosario filed a submission in opposition.
Okt. 25. On March 27,2013, defendants filed a reply. Okt. 26. On April 12, 2013, Rosario
filed a declaration in further opposition to defendants' motion. Okt. 28.
II.
Applicable Legal Standard
To survive a motion to dismiss for failure to state a claim, a complaint must plead
"enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007). A district court must therefore accept as true all well-pleaded factual
allegations in the complaint and draw all inferences in the plaintiffs favor. Allaire Corp. v.
Okumus, 433 F.3d 248, 249-50 (2d Cir. 2006); see also Famous Horse Inc. v. 5th Ave. Photo
Inc., 624 F.3d 106, 108 (2d Cir. 2010) ("We review the district court's grant ofa Rule 12(b)(6)
motion to dismiss de novo, accepting all factual claims in the complaint as true, and drawing all
reasonable inferences in the plaintiffs favor."). A complaint should be dismissed where "the
allegations in a complaint, however true, could not raise a claim of entitlement to relief."
Twombly, 550 U.S. at 558.
A claim will only have "facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
5
alleged." Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). Rule 8 "demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation." Id at 678. Further, "threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do not
suffice." !d. Ultimately, where the plaintiffs claims have not been "nudged ... across the line
from conceivable to plausible, [the] complaint must be dismissed." Twombly, 550 U.S. at 570.
District courts are "obligated to construe a pro se complaint liberally," Harris v. Mills,
572 F.3d 66, 72 (2d Cir. 2009), interpreting the allegations "to raise the strongest arguments that
they suggest," Triestman v. Fed Bureau a/Prisons, 470 F.3d 471, 474 (2d Cir. 2006).
III.
Discussion
Rosario argues that his continued detention at OBCC by the City of New York and
Warden Newton, after the state parole board had cleared him for release on parole, violated his
constitutional rights. See CompI. 7-9. Although Rosario admits that a form 1-247 Immigration
Detainer-Notice of Action had been issued against him pursuant to 8 C.F.R. § 287.7, he argues
that that detainer allowed the DOC to hold him for up to only 48 hours after he otherwise would
have been released, not the more prolonged period for which he remained in DOC custody. See
Compi. 4,8.
Defendants counter that the 48-hour limit does not apply in this case, because Rosario
was otherwise detained and was subject to a final order of removal. See Def. Br. 11. They
further argue that Rosario was held in DOC custody pursuant to the removal order for (by their
calculation) only 67 days after he was cleared for parole-a permissible length of time under the
6
relevant statute and Supreme Court case law. See id at 11-13. Thus, defendants argue, Rosario
has not alleged facts sufficient to state a violation of his constitutional rights. 6 The Court agrees.
A. Detention Pursuant to 8 C.F.R. § 287.7
Rosario's main claim is that he was held in DOC custody pursuant to an immigration
detainer issued against him under 8 C.F.R. § 287.7, but that the authority to detain him under that
detainer expired 48 hours after he was cleared for parole. See CompI. 4, 8. An immigration
detainer "serves to advise another law enforcement agency that the Department [of Homeland
Security] seeks custody of an alien presently in the custody of that agency, for the purpose of
arresting and removing the alien." It constitutes "a request that such agency advise the
Department, prior to release of the alien, in order for the Department to arrange to assume
custody." 8 C.F.R. § 287.7(a); see also Roldan v. Racette, 984 F.2d 85, 88 (2d Cir. 1993). That
regulation provides: "Upon a determination by the Department to issue a detainer for an alien
not otherwise detained by a criminal justice agency, such agency shall maintain custody of the
alien for a period not to exceed 48 hours." 8 C.F.R. § 287.7(d) (emphasis added). As defendants
Defendants also argue that Rosario has not exhausted his claims as required under the Prison
Litigation Reform Act ("PLRA"). See 42 U .S.C. § 1997e(a). Under the PLRA, exhaustion is an
affirmative defense; Rosario therefore was not required to plead exhaustion in the Complaint.
Jones v. Bock, 549 U.S. 199, 216 (2007). However, "that is not to say that failure to exhaust
cannot be a basis for dismissal for failure to state a claim." Id. Dismissal for failure to state a
claim is appropriate where it is clear from the face ofthe Complaint that the plaintiff has not
exhausted his administrative remedies. See id at 214-16; Simmons v. Cripps, No. 12 Civ. 1061
(PAC)(DF), 2013 WL 1285417, at *2 (S.D.N.Y. Mar. 28, 2013); Kasiem v. Switz, 756 F. Supp.
2d 570,574 (S.D.N.Y. 2010). Defendants' argument, based on the Complaint, that Rosario has
failed to exhaust, is substantial: Rosario admits that he did not file a grievance while in DOC
custody, see Compi. 13, and took conflicting positions as to whether he believed his claim to be
grievable, see id (Questions 4(C) & (D)); he ultimately asserts that it is not, see Rosario Br. 4;
Rosario Decl. 1. The Court does not, however, rule on exhaustion grounds, because, for the
reasons stated infra, Rosario's claim is plainly deficient on the merits. See Woodford v. Ngo, 548
U.S. 81,101 (2006) (because exhaustion is not jurisdictional under PLRA, court may "dismiss
plainly meritless claims without first addressing what may be a much more complex question,
namely, whether the prisoner did in fact properly exhaust available administrative remedies").
6
7
correctly note, the emphasized language makes clear that the 48-hour time period applies only
where the alien was not otherwise detained. See Kendall v. INS, 261 F. Supp. 2d 296,301 n.2
(S.D.N.Y. 2003) (§ 287.7(d) does not apply to alien remanded to custody in pending criminal
case). Here, however, Rosario was otherwise detained: originally on account of the parole
violation for his 1989 conviction, and later, as discussed infra, on account of the final order of
removal. Accordingly, the regulation on which Rosario relies does not apply.
B. Detention Pursuant to the Final Order of Removal
Although Rosario's Complaint focuses primarily on the application of8 C.F.R. § 287.7,
the Court also interprets Rosario to be making a second, related argument-as follows. On some
date in April or May 2012, Rosario was cleared for a return to parole. If so, the only valid basis
DOC could have had for detaining him from that point forward must have been the final removal
7
order. Thus, Rosario appears to argue, his continued detention by the DOC was tantamount to
detention on behalf of federal immigration authorities. See Gillies v. Strange, No.3 :05 CV 1273
(SRU), 2005 WL 3307349, at *5-7 (D. Conn. Dec. 6,2005) (holding that, after defendant was
approved for release by state parole board, removal order was "being used as a tool of
confinement" so long as prisoner remained in state custody; state authorities were merely acting
as a "custodial agent" for federal authorities); cf Simmonds v. INS, 326 F.3d 351, 354-56 (2d
Cir. 2003) (final order ofremoval against alien currently incarcerated in state prison sufficient to
establish that he is "in custody" of INS for purposes of federal habeas review). And, Rosario
7 It appears that the decision to grant Rosario parole related solely to his 1989 conviction. On the
record before the Court, it is unclear whether Rosario's 2000 conviction would have required his
continued incarceration. See NY Inmate Lookup (noting that Rosario remains incarcerated
pursuant to his 2000 conviction and has a parole hearing date of August 2013). On this motion
to dismiss, given the ambiguous factual record, the COilrt assumes arguendo that, as of the date
Rosario was granted parole, his 2000 conviction did not supply a basis for continued detention.
8
appears to claim, this detention was impermissibly long. Accepting these factual premises as
true for purposes of the motion to dismiss, the legal question presented, then, is how long DOC
was lawfully permitted to detain Rosario pursuant to the removal order. 8
Where, as here, an alien is subject to a final order of removal, the Attorney General "shall
remove the alien from the United States within a period of90 days." 8 U.S.C. § 1231(a)(1)(A).
That 90-day removal period begins to run on the latest of three dates, including, as relevant here,
"[i]f the alien is detained or confined, ... the date the alien is released from detention or
confinement." 8 U.S.C. § 1231(a)(1)(B)(iii). A standard grant of parole or discretionary release,
as opposed to a conditional grant of parole for deportation only, qualifies as "release" for
purposes of § 1231. Duamutefv. INS, 386 F.3d 172, 179 (2d Cir. 2004). Therefore, where-as
the Court assumes to be the case here-an alien has been granted parole and the only thing
keeping him in state custody is a final order of removal, the fact that the alien remains in state
custody subject to the removal order does not prevent the 90-day clock from running. See
Gillies, 2005 WL 3307349, at *7; see also Johnson v. Warden, No. 3:08cv1377 (SRU), 2009 WL
1625711, at *3 (D. Conn. June 9, 2009) (stating that, as of petitioner's voted-to-parole date, he
could seek an order recognizing the beginning of the removal period). To hold otherwise would
Insofar as Rosario alleges that he was detained improperly, the Court treats this as a due
process claim. See Zadvydas v. Davis, 533 U.S. 678,690 (2001). Rosario also appears to
challenge the DOC's failure to transfer him to federal or state custody, see Rosario Br. 5-6, but
he has not alleged any basis for concluding that he has a cognizable liberty interest in being
detained in federal or state, as opposed to DOC, custody. See Ohm v. Wakinekona, 461 U.S.
238,245-48 (1983); see also Wallace v. Conroy, 945 F. Supp. 628,636 (S.D.N.Y. 1996) (no
cognizable liberty interest in being promptly transferred from city to state custody, where
plaintiff did not allege that conditions of confinement in city custody were significantly and
atypically more onerous than conditions in state custody). Finally, Rosario appears to argue that
he was denied equal protection because he was treated differently than other prisoners subject to
immigration detainers, who were released after the 48-hour time limit elapsed. See Rosario Br.
6-7. That claim fails, however, because, as noted, the 48-hour time limit does not apply to
Rosario.
8
9
be to create a "legal catch-22" wherein immigration authorities could bring about the indefinite
detention of aliens by declining to pick them up from state custody. Gillies, 2005 WL 3307349,
at *7 (,'[Immigration authorities] cannot avoid becoming [petitioner's] custodian by indefinitely
choosing not to take [petitioner] into physical custody, when the DOC is keeping [petitioner] in
physical custody only because of the [immigration] detainer."); see also Waldron v. INS, 17 F.3d
511, 516 (2d Cir. 1993) (immigration authorities may not deprive alien of his right to seek
assistance of consular authorities by holding deportation proceedings in state prison where he is
incarcerated and claiming that he is not in INS custody).
Ninety days is not, however, a hard and fast deadline for removal. Certain categories of
aliens "may be detained beyond the removal period." 8 U.S.c. § 1231(a)(6). This includes
Rosario, because he was convicted of a crime "relating to a controlled substance." 8 U.S.C.
§ 1227(a)(2)(B)(i). Because § 1231(a)(6), on its face, appears to authorize indefinite detention of
certain classes of aliens, the Supreme Court has "interpret[ed] the statute to avoid a serious
constitutional threat" and held that "once removal is no longer reasonably foreseeable, continued
detention is no longer authorized by the statute." Zadvydas v. Davis, 533 U.S. 678, 699 (2001).
In so holding, the Court recognized a "presumptively reasonable period of detention" of six
months. Id. at 701; see also Wang v. Ashcroft, 320 F.3d 130, 146 (2d Cir. 2003). "After this 6
month period, once the alien provides good reason to believe that there is no significant
likelihood of removal in the reasonably foreseeable future, the Government must respond with
evidence sufficient to rebut that showing." Zadvydas, 533 U.S. at 701.
Here, Rosario's claims of impermissibly long detention against the City of New York and
Warden Newton fail, because he was not detained in excess of the 90-day removal period, let
alone the presumptively reasonable six-month period. As noted, it is not entirely clear from the
10
record on this motion when Rosario was indeed cleared for parole. One document appended to
Rosario's Complaint appears to reflect that he was cleared for release on May 9,2012. Compi.
12, 16. Another reveals that a parole violation hearing took place on May 3, 2012, see id at 10,
and Rosario specifically invokes May 3 as the date on which his claim arose, see id at 2. Yet
another document places his parole violation hearing on April 19, 2012. See Rosario Br. 41.
Rosario also asserts at one point that his illegal incarceration began on April 9, 2012. See id 3,
5.
It is clear, however, that Rosario was released from DOC custody into DOCCS custody
9
on July 9,2012. Measuring from April 9, 20 12-the earliest of the several dates offered by
Rosario, see Rosario Br. 3, 5-Rosario was detained for exactly 90 days pursuant to the removal
order. Measuring from May 9, 2012-the date on which it appears Rosario was indeed cleared
for release, see CompI. 12, 16-Rosario was detained for only 60 days. Finally, measuring from
May 3, 2012-the date Rosario specifically invokes in his Complaint, see CompI. 2-Rosario
was detained for only 66 days. Thus, however measured, Rosario's detention in DOC custody
pursuant to the removal order did not exceed the statutorily authorized 90-day period, nor did it
approach the presumptively reasonable six-month period. See Zadvydas, 533 U.S. at 701.
Accordingly, Rosario's claim must be dismissed. \0
If Rosario wishes to challenge his present detention in DOCCS custody, he may do so in a
properly filed habeas petition. The Court does not construe Rosario to bring such a petition here,
because he filed this Complaint before his transfer to DOCCS custody. See Dkt. 1.
Additionally, Rosario has since filed a habeas petition in this Court, although it appears to attack
his 1989 conviction, not his current incarceration. See Rosario v. Denalver, No. 13 Civ. 999
(LAP) (S.D.N.Y. 2013).
9
10 Defendants also argue that, even if Rosario had established a constitutional violation, he has
not alleged facts sufficient to support a claim of municipal liability on the part of the City of New
York or personal involvement by Warden Newton. Although these are substantial arguments,
the Court, having found no constitutional violation, need not address whether Monell or personal
11
CONCLUSION
Defendants' motion to dismiss the Complaint is granted. 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
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). The Clerk of Court is directed to terminate the
motion at docket number 19 and to close the case.
PrMJA~
SO ORDERED.
Paul A. Engelmayer
United States District Judge
Dated: May 15, 2013
New York, New York
liability has been sufficiently pled. See Matican v. City ofNew York, 524 F.3d 151, 152 (2d Cir.
1998); Shomo v. City ofNew York, 579 F.3d 176, 184 (2d Cir. 2009).
12
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