Salgado v. New York State Dept. of Corr. & Community Supervision et al

Filing 67

DECISION and ORDER granting 62 Motion to Sever; granting 62 Motion to Change Venue. All of the claims in the complaint as to defendants Goodman, Gleason, Sloan, Ives, Washer, Jackson, Quinn, Mrs. Brown, Gilani, Lee, Bombardier, Bergren, Waldro n, Lancto, Lavalley, Lucia, S. Brown and Bosco are severed from the remainder of the complaint and transferred to the Northern District of New York. The parties are to appear before the Court on 5/7/2018 at 11:00 a.m. for a status conference and t o discuss a revised Case Management Order with respect to the remaining claims. The Attorney General is to contact the plaintiff's correctional facility and arrange for plaintiff to have access to a telephone and plaintiffs legal papers at that time. The Attorney General is to contact the Court prior to the conference with the telephone number and extension of the plaintiff. The Court will initiate the call. Signed by Hon. Michael J. Roemer on 4/6/2018. (RAZ) Copy of Decision and Order mailed to pro se plaintiff at Beaumont U.S. Penitentiary.-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
__________________________________
ANTONIO SALGADO, JR.

13-CV-01108-RJA-MJR

Plaintiff,

DECISION AND
ORDER

v.
NYS DEPARTMENT OF CORRECTIONS
AND COMMUNITY SUPERVISION, et al.,
Defendants.
__________________________________
INTRODUCTION
This case has been referred to the undersigned pursuant to Section 636(b)(1) of
Title 28 of the United States Code, by the Honorable Richard J. Arcara, for all pre-trial
matters, including the hearing and disposition of non-dispositive motions. Before the
Court is defendants’ motion for severance of claims and transfer of venue. (Dkt. No. 62).
For the following reasons, defendants’ motion for severance and transfer is granted.
RELEVANT FACTS AND BACKGROUND
Plaintiff Antonio Salgado, Jr. (“plaintiff”), an inmate in the care and custody of the
New York State Department of Corrections and Community Supervision (“DOCCS”), filed
the instant pro se action pursuant to Section 1983 of Title 42 of the United States Code.
(Dkt. No. 1) Plaintiff initially sued DOCCS, the Office of Mental Health (“OMH”) and thirtysix individual defendants employed by either DOCCS or OMH. (Id.) DOCCS and OMH
were sua sponte dismissed from the case on the basis of Eleventh Amendment immunity.
(Dkt. No. 7). Twenty-two of the remaining individual defendants filed a motion to dismiss.
(Dkt. No. 21). Plaintiff then submitted a proposed amended complaint which added two

defendants and removed three. (Dkt. No. 31). Nineteen of the remaining defendants
filed another partial motion to dismiss, which essentially raised the same arguments as
the first motion to dismiss. (Dkt. No. 33). The Court accepted plaintiff’s proposed
amended complaint, and granted in part and denied in part defendants’ motion to dismiss.
(Dkt. Nos. 41 and 44).
Plaintiff’s surviving allegations include claims of excessive force, retaliation,
religious discrimination and deliberate indifference to medical needs by various
defendants during the time periods plaintiff was incarcerated at Five Points Correctional
Facility (“Five Points”), Great Meadow Correctional Facility (“Great Meadow”), and Clinton
Correctional Facility (“Clinton”). 1 Five Points, located in Seneca County, is within the
Western District of New York.

Great Meadow, located in Washington County, and

Clinton, located in Clinton County, are both within the Northern District of New York.
Plaintiff alleges that while incarcerated at Five Points in or around August of 2011,
defendant Luther harassed and threatened him based upon his religious beliefs, that he
was subjected to excessive force and retaliation by defendants Luther, Kifner, Casper,
Geffert and Morton and that defendant Terry failed to intervene or stop the constitutional
violations. 2 (Dkt. No. 42, pgs. 20-24). Plaintiff was later transferred to Great Meadow.
(Id. at pg. 25). Plaintiff alleges that while incarcerated at Great Meadow, defendant
Goodman discriminated against him on the basis of his religion by denying him use of

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The Court’s ruling on the motion to dismiss permitted plaintiff to replead some of the dismissed claims.
Plaintiff did not replead, and the present claims and defendants before the Court include those in the
amended complaint (Dkt. No. 31 and 42), less those dismissed in the Court’s prior ruling. (Dkt. Nos. 41
and 44).
2 It is noted that the Court dismissed plaintiff’s retaliation claim premised on Kifner’s alleged slamming of
plaintiff’s finger in a cell window. (Dkt. No. 41, pgs. 18-21). However, plaintiff’s claims of retaliation based
on the August 30, 2011 assault and his claims of excessive force and religious discrimination as to the
Great Meadow defendants remain pending. (Id.).

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religious items and that defendants Goodman, Gleason, Sloan, Ives, Washer, Jackson,
Quinn, and Mrs. Brown were deliberately indifferent to his medical needs, specifically his
mental health problems and threats of suicide. 3 (Id. at pgs. 24-29). Plaintiff alleges that
he was transferred to Clinton in September of 2012 and from that time through September
of 2013, defendants Gilani, Lee, Bombardier, Bergren, Waldron, Lancto, Lavalley, Lucia,
S. Brown and Bosco were deliberately indifferent to his mental health issues and threats
of suicide. 4 (Id. at pgs. 28-32).
Defendants now seek to sever plaintiff’s claims against Luther, Kifner, Casper,
Geffert, Morton and Terry (the “Five Points defendants”) from his claims against
defendants Goodman, Gleason, Sloan, Ives, Washer, Jackson, Quinn, and Mrs. Brown
(the “Great Meadow defendants”) and against defendants Gilani, Lee, Bombardier,
Bergren, Waldron, Lancto, Lavalley, Lucia, S. Brown and Bosco (the “Clinton
defendants”). Defendants further move to transfer the claims against the Great Meadow
and Clinton defendants to the Northern District of New York. 5
DISCUSSION
Dispositive Jurisdiction
Section 636 of Title 28 of the United States Code provides a list of dispositive
pretrial matters which may be referred to a magistrate judge for purposes of issuing a
report and recommendation for consideration by the District Court.

See 28 U.S.C.

§636(b)(1). Motions for severance and motions for changes of venue are not listed

3 Plaintiff does not provide a time period as to the allegations arising from his incarceration at Great
Meadow.
4 Defendants Fischer, VanBuren, Koenigsman, Boll, Lempke, Schlee, Racette, Colvin, Piccolo, Hogan,
Gonzalez, Roberts, Prack and Dill have been dismissed from the lawsuit. (Dkt. Nos. 41 and 44).
5 Upon filing of the instant motion for severance and transfer, the Court issued a briefing schedule which
was mailed to plaintiff. Plaintiff has not filed a response to the motion.

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among the types of relief in Section 636(b) that are expressly dispositive. Id. Moreover,
courts, including courts within this Circuit, have differed as to whether a motion to change
venue is dispositive or non-dispositive in nature. Compare Cott v. Decas Botanical
Synergies, LLC, 11 CV 552, 2011 U.S. Dist. LEXIS 156223, *12 (WDNY Dec, 23, 2011)
(if granted, motion to transfer venue is dispositive as to this court); and Payton v. Saginaw
Country Jail, 743 F. Supp. 2d 691, 693 (E.D. Mich. 2010) (motion to transfer venue
between divisions within the district court was a case dispositive matter); with Gendreau
v. Kigawa, 13 CV 3217, 2014 U.S. Dist. LEXIS 165433, *2 (SDNY Nov. 14, 2014) (noting
that a motion to transfer is non-dispositive); and Plastic Suppliers, Inc., v. Cenveo, Inc.,
3:10 CV 0512, 2011 U.S. Dist. LEXIS 5186, *6-7 (NDNY Jan. 19, 2011) (“venue transfer
is regarded as a non-dispositive matter”); and Madison v. Alves, 05 CV 6018, 2006 U.S.
Dist. LEXIS 49620, *5 (WDNY July 19, 2006) (treating request for change of venue as a
non-dispositive motion). However, the majority of recent district court opinions in the
Second Circuit conclude that motions for a change of venue are non-dispositive and
therefore “within the pretrial reference authority of magistrate judges.” Skolnick v. Wainer,
CV 2013-4694, 2013 U.S. Dist. LEXIS 135139, *2-3 (EDNY Sept. 220, 2013). See e.g.,
Alessandra v. Colvin, 12 CV 397, 2013 U.S. Dist. LEXIS 111975, *4 (WDNY Aug. 8, 2013)
(“A motion for change of venue is a non-dispositive pretrial matter which this Court may
decide pursuant to [Section 636(b)(1)(A)] by Order.”); D’Amato v. ECHL, Inc., 13 CV 646,
2015 U.S. Dist. LEXIS 59954, *7, 8 (WDNY May 7, 2015) (explaining that the “Court will
adhere to its more recent practice and consider the motion to change venue as nondispositive [because it] does not end federal jurisdiction); United States ex rel Fisher v.
Bank of America, 204 F. Supp. 3d 618, 629 (SDNY 2016) (“Because a motion to transfer

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venue is non-dispositive, this Court [will] adjudicate it by order pursuant to 28 U.S.C. §
636(b)(1)(A).”); Kasparov v. Ambit Tex., LLC, 12-CV-3488, 2016 U.S. Dist. LEXIS 31637,
*9-10 (EDNY March 10, 2016) (“The majority view within this circuit is that a magistrate
judge has the authority to grant the non-dispositive relief sought in a motion to transfer
venue.”).
In Reid v. Nuttall, Judge Schroeder issued a report recommending that the District
Court sever a number of plaintiff’s claims arising from his incarceration at Auburn and
Gouverneur Correctional Facilities and transfer venue to the Northern District of New
York. 08 CV 870, 2010 U.S. Dist. LEXIS 50102, *32-33 (WDNY Mar. 11, 2011). However,
in that case, the recommendation for severance and transfer was made sua sponte, and
issued together with a recommendation as to defendants’ motion to dismiss. Id. In
contrast, in Romano v. Levitt, Judge Scott addressed a motion for severance and transfer
in the form of an order. 15 CV 518, 2017 U.S. Dist. LEXIS 6948 (WDNY 2017). Romano,
like the instant matter and unlike Reid, involved an independent motion to sever and
change venue by defendants as to certain claims by a pro se plaintiff arising from his
incarceration at various correctional facilities. Id. In concluding that the motion was nondispositive, Judge Scott explained that “upon grant of the motion to sever [and transfer],
one set of claims and defendants would merely be heard separately [and in another
district] from another”. See also Bernier v. Koenigsmann, 15 CV 209, 2017 U.S. Dist.
LEXIS 21563, *4 (WDNY Feb. 15, 2017) (treating prison employees’ motion to sever and
transfer plaintiff’s claims to the Northern District of New York, where they worked and
where the events giving rise to the lawsuit occurred, as non-dispositive). The Court
agrees with Judge Scott’s reasoning in Romano. The instant motion for severance of

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claims against certain defendants and transfer of those claims to the Northern District of
New York is not dispositive because it will not prelude or end any of plaintiff’s federal
claims. Instead, some of his claims will now proceed separately and in a different forum.
Thus, the Court grants defendants’ motion for severance and transfer in the form of an
order.
Severance
Rule 20 of the Federal Rules of Civil Procedure provides that persons may be
joined in one action as defendants if: “[a]ny right to relief is asserted against them jointly,
severally or in the alternative with respect to or arising out of the same transaction,
occurrence, or series of transactions or occurrences; and…any question of law or fact
common to all defendants will arise in the action.” See Fed. R. Civ. P. 20(a)(2) (emphasis
added). The Federal Rules of Civil Procedure further provide that misjoinder of claims is
not grounds for dismissing an action and that a court “may at any time, on just terms, add
or drop a party [or] sever any claim against a party.” See Fed. R. Civ. P. 21. Courts have
broad discretion to sever a party or a claim from a pending action. German v. Federal
Home Loan Mortgage Corp., 896 F. Supp. 1385, 1400 (SDNY 1995). In determining
whether severance is appropriate, courts typically consider: “(1) whether the issues
sought to be tried separately are significantly different from one another, (2) whether the
separable issues require the testimony of different witnesses and different documentary
proof, (3) whether the party opposing the severance will be prejudiced if it is granted and
(4) whether the party requesting the severance will be prejudiced if it is not granted.” Id.
The Court finds that it is appropriate to sever plaintiff’s claims against the Five
Points defendants, which arose in the Western District of New, from his claims against

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the Great Meadow and Clinton defendants, which arose in the Northern District of New
York. Plaintiff’s claims of religious discrimination, excessive force and retaliation at Five
Points involve wholly different facts and circumstances than plaintiff’s claims of religious
discrimination and deliberate indifference to medical needs at Great Meadow and Clinton.
They involve different defendants, locations and time periods as well as separate
allegations of wrongdoing. They would entail different witnesses and evidence. At trial,
the allegations of excessive force and retaliation at Five Points would require different
elements of proof from the allegations of deliberate indifference to medical needs at Great
Meadow and Clinton.

Although plaintiff alleges that he was subject to religious

discrimination at both Five Points and Great Meadow, the allegations involve conduct by
different defendants at different correctional facilities over different time periods. The
witnesses and documentary proof would change with respect to each facility, each claim
and each defendant. In Reid, Judge Schroeder found that a prisoner’s claims arising
from incidents at two prisons in the Northern District of New York should be severed from
his claims arising from incidents at a prison located in this District. 2010 U.S. Dist. LEXIS
50102, *29. Although the claims all alleged either retaliation or conditions of confinement,
“the allegations involve[d] different defendants at different correctional facilities…[and] the
witnesses and documentary proof [would] be different as to each claim and against each
defendant.” Id. See also Romano, 2017 U.S. Dist. LEXIS 6948, *13, 14 (severing
plaintiff’s claims against defendant employees of Auburn Correctional Facility from his
claims against defendant employees of Wende Correctional Facility because “the claims
against the Auburn [Correctional Facility] defendants differ in time and place…from those
against the Wende defendants; hence there are no common questions of fact.”); James

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v. Osbourne, 11 CV 4182, 2012 U.S. Dist. LEXIS 147646, *14 (EDNY April 16, 2012)
(where plaintiff “organized the claims in his Complaint by [correctional] facility and, for the
most part, the incidents alleged to have occurred at these three facilities appear discrete,”
severance of the claims based upon where they occurred was appropriate).
Plaintiff has not filed a response in opposition to the motion and therefore has not
claimed that he would suffer prejudice in the event of a severance. Nevertheless, the
Court finds that a severance will not prejudice plaintiff here. Plaintiff may still pursue his
federal claims against the Great Meadow and Clinton defendants. In fact, plaintiff’s claims
may all proceed more expeditiously as they move forward simultaneously as separate
actions.

The separate actions will now entail fewer claims, defendants, and less

discovery. In addition, severance will ensure that no prejudice inures to defendants.
Indeed, evidence of multiple constitutional claims against numerous defendants in three
different facilities at different times may result in juror confusion or spillover prejudice.
Transfer
“Where certain claims are properly severed, the result is that there are then two or
more separate ‘actions’, and the district court may, pursuant to §1404(a), transfer certain
of such separate actions while retaining jurisdiction of others.” Wyndham Assocs. v.
Bintliff, 398 F.2d 614, 618 (2d Cir. 1968). Section 1404(a) provides that, in the interest of
justice and for the convenience of the parties, “a district court may transfer any civil action
to any other district or division where it may have been brought.” 28 U.S.C. §1404(a).
Section 1391(b) of Title 28 of the United States Code explains that a civil action not
founded solely on diversity jurisdiction may be brought in: “(1) a judicial district where any
defendant resides, if all defendants reside in the same State, (2) a judicial district in which

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a substantial part of the event or omissions giving rise to the claim occurred, or a
substantial part of property that is the subject of the action is situated, or (3) a judicial
district in which any defendant may be found, if there is no district in which the action may
otherwise be brought.” 28 U.S.C. §1391(b). For purposes of venue, “public officials
reside in the district in which they perform their official duties.” Pierce v. Coughlin, 806 F.
Supp. 426, 427 (SDNY 1992). Further, the “location and convenience of witnesses is an
important factor in deciding whether to transfer a case.” Bossom v. Buena Cepa Wines,
LLC, 11 CV 6890, 2011 U.S. Dist. LEXIS 142728, *4 (SDNY Dec. 12, 2011); accord Ford
Motor Co. v. Ryan, 182 F.2d 329, 331 (2d Cir. 1950).
After severing the claims against the Clinton and Great Meadow defendants from
the claims against the Five Points defendants, the Western District of New York is no
longer the proper venue for the severed claims. Clinton and Great Meadow are located
in the Northern District of New York, and all of the events giving rise to the allegations
against the Clinton and Great Meadow defendants occurred there. The Clinton and Great
Meadow defendants perform their duties in the Northern District and therefore are
deemed to reside there. The majority of the witnesses, documents and evidence is
located in the Northern District. Moreover, since plaintiff is currently incarcerated in
Beaumont, Texas, the Western District is no more a convenient forum from plaintiff’s
perspective than the Northern District. Thus, the claims against the Great Meadow and
Clinton defendants are transferred to the Northern District of New York. See Reid, 2010
U.S. Dist. LEXIS 50102, *30-32 (WDNY March 11, 2010) (recommending transfer of
plaintiff’s claims arising from his incarceration at prisons located in the Northern District
of New York because “the Court is sensitive to the burden, upon both the individuals and

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the taxpayers of New York, of requiring individuals who reside in the Northern District of
New York to travel to the Western District to defend against allegations which occurred in
the Northern District of New York”); Tafari v. Annetts, 06 Civ. 11360, 2007 U.S. Dist.
LEXIS 76017, *29-30 (SDNY Oct. 15, 2007) (“Generally, it will be more convenient and
more efficient if claims in this complaint and [p]laintiff’s multiple other pending complaints
relating to the Northern District of New York are handled by a Judge in the Northern
District, and [plaintiff’s] claims relating to the Western District are handled by a Judge in
the Western District.”); Melendez v. Wilson, 04 Civ. 0073, 2006 U.S. Dis. LEXIS 65212,
*30-32 (SDNY Sept. 12, 2006) (“[W]here the claims arising out of incidents occurring at
Upstate are distinct from those arising out of incidents at Sing Sing, venue was found to
be improper as to the Upstate defendants and those claims were severed from the
remainder of the action and transferred to the Northern District of New York.”).
CONCLUSION
For the foregoing reasons, defendants’ motion to sever and transfer venue is
granted. (Dkt. No. 62). All of the claims in the complaint as to defendants Goodman,
Gleason, Sloan, Ives, Washer, Jackson, Quinn, Mrs. Brown, Gilani, Lee, Bombardier,
Bergren, Waldron, Lancto, Lavalley, Lucia, S. Brown and Bosco are severed from the
remainder of the complaint and transferred to the Northern District of New York. The
parties are to appear before the Court on May 7, 2018 at 11:00 a.m. for a status
conference and to discuss a revised Case Management Order with respect to the
remaining claims. The Attorney General is to contact the plaintiff’s correctional facility
and arrange for plaintiff to have access to a telephone and plaintiff’s legal papers at that

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time. The Attorney General is to contact the Court prior to the conference with the
telephone number and extension of the plaintiff. The Court will initiate the call.
SO ORDERED.
Dated:

April 6, 2018
Buffalo, New York
/s/ Michael J. Roemer
MICHAEL J. ROEMER
United States Magistrate Judge

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