Torres v. Ramirez et al
MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Malachy E Mannion on 11/6/14. (bs)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
JORGE A. TORRES,
CIVIL ACTION NO. 3:14-1064
CYNTHIA RAMIREZ, et al.
Plaintiff Jorge Torres filed this petition for habeas corpus pursuant to 28
U.S.C. §2241 on June 3, 2014, on behalf of two of his minor children. (Doc.
1). Plaintiff’s petition alleges that the Monroe County Children and Youth
Services (“CYS”) removed petitioner’s children from his home on June 2
without a court order. He sought the immediate release of the children to his
custody. CYS responded to the petition indicating that a hearing was held on
June 5, 2014, after which time petitioner’s children were returned to him, and
that petitioner thereafter left Pennsylvania with his children and has not been
in contact with CYS since that time. (Doc. 10). Petitioner then filed an
“Expedited Motion” asking that the petition not be dismissed and that the court
award him declaratory and injunctive relief. (Doc. 11). Before the court is the
report and recommendation of Judge Mehalchick dismissing the petition and
the motion as moot. No objections to the report have been filed. For the
following reasons, the report is ADOPTED IN ITS ENTIRETY.
STANDARD OF REVIEW
When objections are timely filed to the report and recommendation of
a magistrate judge, the district court must review de novo those portions of
the report to which objections are made. 28 U.S.C. §636(b)(1); Brown v.
Astrue, 649 F.3d 193, 195 (3d Cir. 2011). Although the standard is de novo,
the extent of review is committed to the sound discretion of the district judge,
and the court may rely on the recommendations of the magistrate judge to the
extent it deems proper. Rieder v. Apfel, 115 F.Supp.2d 496, 499 (M.D.Pa.
2000) (citing United States v. Raddatz, 447 U.S. 667, 676 (1980)).
For those sections of the report and recommendation to which no
objection is made, the court should, as a matter of good practice, "satisfy itself
that there is no clear error on the face of the record in order to accept the
recommendation." Fed. R. Civ. P. 72(b), advisory committee notes; see also
Univac Dental Co. v. Dentsply Intern., Inc., 702 F.Supp. 2d 465, 469 (M.D.Pa.
2010) (citing Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987)
(explaining that judges should give some review to every report and
recommendation)). Nevertheless, whether timely objections are made or not,
the district court may accept, not accept, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge. 28 U.S.C.
§636(b)(1); Local Rule 72.31.
The court agrees with Judge Mehalchick’s determination that the
petition is moot, and that therefore she did not need to reach the issue of
whether there is habeas jurisdiction in this case. Petitioner’s original
requested relief has been obtained - his children have been returned to his
custody. Further, there is no reasonable expectation that the respondent will
be subject to a repetition of his children being taking from his custody by
respondents, as he has moved to Florida. See Spencer v. Kemna, 523 U.S.
1, 17 (1998). Thus, plaintiff cannot establish that there is a “real and
immediate threat that he would again be [the victim of the allegedly
unconstitutional practice,]” as he must in order to have standing to seek
prospective relief. Brown v. Fauver, 819 F.2d 395, 400 (3d Cir. 1987). As
petitioner has not shown that respondents may violate his rights again, and
as his children have already been returned to him, his petition and motion are
DISMISSED AS MOOT.
The report of Judge Mehalchick, (Doc. 15), is ADOPTED IN ITS
ENTIRETY. The petition, (Doc. 1), and motion, (Doc. 11), are DISMISSED AS
MOOT. The Clerk is directed to close the case. A separate order shall issue.
s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Date: November 6, 2014
O:\Mannion\shared\MEMORANDA - DJ\CIVIL MEMORANDA\2014 MEMORANDA\14-1064-01.wpd
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