Cayetano-Hernandez v. Lowe
MEMORANDUM (Order to follow as separate docket entry) re 2 MOTION for Leave to Proceed in forma pauperis filed by Bonifacio Cayetano-Hernandez, 1 Petition for Writ of Habeas Corpus filed by Bonifacio Cayetano-Hernandez. Signed by Honorable Matthew W. Brann on 4/11/2017. (jn)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
CRAIG LOWE, ET AL.,
CIVIL NO. 4:17-CV-437
APRIL 11, 2017
Bonifacio Cayetano-Hernandez filed this petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2241 while confined at the Pike County Correctional
Facility, Lords Valley, Pennsylvania. Named as Respondents are various federal
officials and Warden Craig Lowe of the Pike County Correctional Facility.1
Petitioner’s accompanying request for leave to proceed in forma pauperis will be
granted for the sole purpose of the filing of this action with this Court.
Cayetano-Hernandez states that he is a native and citizen of Mexico who
first entered the United States in 2004 and was thereafter granted voluntary
The only properly named Respondent in a federal habeas corpus action is
Petitioner’s custodial official, in this case, Warden Lowe. See 28 U.S.C. § 2242.
departure. According to the Petitioner, he reentered the United States in 2008
without inspection. Following a Pennsylvania state criminal conviction for
insurance fraud, forgery (12 counts), and criminal attempt/theft by deception,
removal proceedings were initiated against Cayetano-Hernandez. An Immigration
Judge ordered Petitioner’s removal on October 25, 2016. An appeal of that
determination was pending before the Board of Immigration Appeals (BIA) when
this matter was initiated.
Petitioner claims that he has been detained by ICE for over seventeen (17)
months. The pending § 2241 petition challenges Cayetano-Hernandez’s indefinite
detention pending removal. The Petitioner contends that he has been detained for
an unreasonable amount of time while his removal proceedings are ongoing in
violation of the Due Process Clause of the Fifth Amendment, Diop v.
ICE/Homeland Sec., 656 F.3d 221, 231-35 (3d Cir. 2011), and Leslie v. Attorney
Gen. of U.S., 678 F.3d 265, 269 (3d Cir. 2012). As relief, Petitioner seeks his
immediate release or a bond hearing as contemplated in Chavez-Alvarez v.
Warden York Cty. Prison, 783 F.3d 469, 477 (3d Cir. 2015) .
Following the filing of this action correspondence sent to the Petitioner by
the Clerk of Court’s office was returned as undeliverable with a notation that the
letter could not be forwarded. See Doc. 4. The Clerk of Court’s office attempted
to verify the Petitioner’s whereabouts by telephoning the Pike County Prison and
was informed only that he had been released from that facility on or about March
M.D. Pa. Local Rule 83.18 provides that a pro se litigant such as CayetanoHernandez has an affirmative obligation to keep the Court informed of his address
and must immediately inform the Court if his address changes in the course of the
litigation. Failure to satisfy that obligation may be construed as a failure to
prosecute and result in an entry of dismissal.2 See Fed. R. Civ. P. 41(b).
Although Petitioner has apparently left the Pike County Prison, he has not
advised this Court of either his release from that facility nor provided it with his
current address. Consequently, he has failed to comply with the requirements of
Local Rule 83.18.
Petitioner’s failure has prevented this matter from proceeding. The inability
of this Court to communicate with Cayetano-Hernandez is solely the result for his
own inaction and renders ineffective any sanction short of dismissal of the action.
See Poulis v. State Farm, 747 F. 2d 863 (3d Cir. 1984). Since Petitioner’s present
When a party fails to prosecute a case or comply with an order of court,
dismissal of his action is appropriate. See Federal Rule of Civil Procedure 41(b);
Link v. Wabash Railroad Co., 370 U.S. 626, 629 (1962).
whereabouts are unknown, it would be a waste of judicial resources to allow this
action to continue. Based on the present circumstances, dismissal of this action
without prejudice for failure to prosecute is warranted. However, in the event that
Petitioner provides this Court with his current address within a reasonable time
period, this determination will be reconsidered.
Second, the case or controversy requirement of Article III, § 2 of the United
States Constitution subsists through all stages of federal judicial proceedings.
Parties must continue to have a “‘personal stake in the outcome' of the lawsuit."
Lewis v. Continental Bank Corp., 494 U.S. 472, 477-78 (1990); Preiser v.
Newkirk, 422 U.S. 395, 401 (1975). In other words, throughout the course of the
action, the aggrieved party must suffer or be threatened with actual injury caused
by the defendant. Lewis, 494 U.S. at 477.
The adjudicatory power of a federal court depends upon "the continuing
existence of a live and acute controversy." Steffel v. Thompson, 415 U.S. 452,
459 (1974) (emphasis in original). "The rule in federal cases is that an actual
controversy must be extant at all stages of review, not merely at the time the
complaint is filed." Id. at n.10 (citations omitted). "Past exposure to illegal
conduct is insufficient to sustain a present case or controversy ... if unaccompanied
by continuing, present adverse effects." Rosenberg v. Meese, 622 F. Supp. 1451,
1462 (S.D.N.Y. 1985) (citing O'Shea v. Littleton, 414 U.S. 488, 495-96 (1974));
see also Gaeta v. Gerlinski, Civil No. 3:CV-02-465, slip op. at p. 2 (M.D. Pa. May
17, 2002) (Vanaskie, C.J.).
As relief, Petitioner sought his immediate release from ICE detention or a
bond hearing. Since Petitioner is no longer being detained at the Pike County
Prison, it appears that the instant petition may be subject to dismissal as moot
under the principles set forth in Steffel because it no longer presents an existing
case or controversy. An appropriate Order will enter.3
BY THE COURT:
s/ Matthew W. Brann
Matthew W. Brann
United States District Judge
It is again noted that if Petitioner notifies the Court that he is still in ICE
custody this matter will be reopened.
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