Buitrago v. City of N.Y.
| Decision Date | 19 December 2012 |
| Docket Number | No. 11 Civ. 8551 (RJS) (DCF),11 Civ. 8551 (RJS) (DCF) |
| Parties | EDGARDO BUITRAGO, Plaintiff, v. THE CITY OF NEW YORK, Defendant. |
| Court | U.S. District Court — Southern District of New York |
ORDER ADOPTING REPORT
AND RECOMMENDATION
On November 23, 2011, pro se Plaintiff Edgardo Buitrago initiated this action by filing his Complaint against Defendant New York City Department of Correction pursuant to 42 U.S.C. § 1983. Plaintiff alleged a violation of his constitutional due process rights from a three-month delay in transferring him from Rikers Island to a drug treatment program at the Willard Drug Treatment Campus. (Doc. No. 2.) By Order dated December 12, 2011, the Court dismissed Plaintiff's claims against the New York City Department of Correction and, pursuant to Federal Rule of Civil Procedure 21, substituted the City of New York as Defendant. By Order dated January 19, 2012, the Court referred this matter to the Honorable Debra C. Freeman, Magistrate Judge. Following a telephonic case management conference at which both parties appeared, Judge Freeman set a briefing schedule for Defendant's contemplated motion to dismiss. (Doc. No. 18.) Defendant then timely filed its motion on May 18, 2012. (Doc. No. 19.) On July 17, 2012, the Court received a letter from Plaintiff, dated July 13, 2012, informing it that Plaintiff is in custody and requesting a stay of proceedings until April 2013, when he would be released. (Doc. No. 24.)
On November 13, 2012, Judge Freeman issued a Report and Recommendation (the "Report") denying Plaintiff's request for a stay and, liberally construing Plaintiff's July 13 letter to raise all possible arguments on his behalf in opposition to Defendant's motion, recommending that the Court grant Defendant's motion to dismiss the Complaint with prejudice. (Doc. No. 25.) In the Report, Judge Freeman advised the parties that failure to file timely objections to the Report would constitute a waiver of those objections.* (Doc. No. 33 at 16). No party has filed objections to the Report, and the time to do so has expired.
When no objections to a report and recommendation are made, the Court may adopt the report if there is no clear error on the face of the record. Adee Motor Cars, LLC v. Amato, 388 F. Supp. 2d 250, 253 (S.D.N.Y. 2005); La Torres v. Walker, 216 F. Supp. 2d 157, 159 (S.D.N.Y. 2000). After reviewing the record, the Court finds that Judge Freeman's well-reasoned and careful Report is not facially erroneous. Accordingly, the Court adopts the Report in its entirety and, for the reasons set forth therein, grants Defendant's motion to dismiss with prejudice the Complaint in its entirety. The Clerk of Court is respectfully directed to terminate the motion located at Doc. No. 19 and to close this case.
SO ORDERED.
Dated: December 18, 2012
New York, New York
______________________
RICHARD J. SULLIVAN
UNITED STATES DISTRICT JUDGE
A copy of this Order was mailed to:
v.
THE CITY OF NEW YORK, Defendant.
11 Civ. 8551 (RJS) (DF)
REPORT AND
In September 2010, pro se plaintiff Edgardo Buitrago ("Plaintiff"), facing potential revocation of his parole, was offered the alternative of serving 12 months in custody or 90 days in a drag treatment program at the Willard Drug Treatment Campus ("Willard").1 Although, at the time, Plaintiff opted for the drug treatment program, defendant the City of New York ("Defendant" or the "City") allegedly failed, for more than 90 days, to transfer him into State custody, so that he could be placed in the program. Claiming that this delay violated his constitutional due process rights, Plaintiff commenced this action under 42 U.S.C. § 1983. Now before the Court is Defendant's motion to dismiss the Complaint (Dkt. 19) on the grounds that Plaintiff had no constitutional right to a timely transfer to Willard and that he has failed to state a claim for municipal liability. For the reasons discussed below, I recommend that Defendant's motion be granted.
At a parole revocation hearing on September 28, 2010, Plaintiff pleaded guilty to violating parole.2 The administrative law judge ("ALT') presiding over that hearing ordered Plaintiff to serve a "time assessment" of 12 months.3 (State Habeas Decision, at 1.) At the same time, the ALJ offered Plaintiff, as an alternative, the opportunity to enter a 90-day substance abuse treatment program at Willard;
[P]arolee is sentenced to 12 mos. with an alternative agreed by parolee as follows: if you enter and complete a 90 day drug treatment program conducted by NYS DOCS, this sentence will be forthwith modified to revoke/restore, time-served, you will be released from State prison and returned to parole supervision in the community, Parolee otherwise to serve 12 mos.
(Id. (internal quotation marks omitted).)
Thereafter, the New York State Division of Parole deemed Plaintiff "state ready," but the New York City Department of Correction ("DOC") continued holding Plaintiff at Rikers Islandunder the parole warrant. (Id.) There is nothing in the record that explains why this occurred. Still at Rikers Island 93 days later, Plaintiff filed a habeas corpus petition in state court on December 30, 2010, and he was assigned counsel. (See id.) On January 21, 2011, while that petition was pending, Plaintiff was finally transferred to state custody, and he was offered placement at Willard on February 2 and 3,2012. (Id. at 1-2.) Refusing both times, Plaintiff served the 12-month time assessment. (Id. at 2.)
The state court denied Plaintiff habeas corpus relief, distinguishing Plaintiff's case from those of parolees who, rather than being given time assessments, had their parole simultaneously "revoked and restored" with completion of Willard as a parole condition:
(Id. at 2 (citations omitted).)
Plaintiff filed a Complaint in this Court on November 23, 2011, alleging that the delay in transferring him to State custody, so that he could be placed in Willard, violated his federal due process rights and entitles him to money damages. (See generally Compl.) Initially, Plaintiff named the DOC as the sole defendant in this case, but the Court dismissed Plaintiff's claims against that entity and substituted the City, under Rule 21 of the Federal Rules of Civil Procedure. (Dkt. 7.)
During a March 20, 2012 telephonic case management conference, at which Plaintiff appeared, Defendant expressed an intent to move to dismiss the Complaint, and the Court set a schedule for that motion. (Dkt. 18.) In accordance with that schedule, the City timely filed its motion to dismiss on May 18, 2012. (See Notice of Motion, dated May 18 2012 (Dkt. 19); see also Memorandum of Law in Support of Defendant's Motion to Dismiss, dated May 18, 2012 ("Def. Mem") (Dkt. 20).) Plaintiff's opposition to that motion was then due on June 29, 2012. (Dkt. 18, ¶ 1(b).)
After the March 20 conference, however, Plaintiff showed some lack of understanding as to what the Court had directed him to do. By letter to the Court dated May 10, 2012 (Dkt. 22), which was still prior to Defendant's service of its motion papers, Plaintiff stated that he "would not be able to make it to court on May 18"4 and asked if he could "continue [his] claim until 2013" (id.). This led the Court to issue another Order, dated May 30, 2012, in which the Court explained to Plaintiff that he was not required to appear in Court on May 18, and that, if Plaintiff wished to oppose Defendant's motion, he should serve and file written opposition papers byJune 29, as originally ordered. (Dkt. 23, ¶ 1.) The Court further informed Plaintiff that, if, despite the fact that his appearance in court was not required at this time, he still wished the Court to stay these proceedings, he should write again to the Court, setting forth good cause for a stay. (Id. ¶ 3.)
The Court did not receive any further submission from Plaintiff until July 17, 2012, when it received a second letter from him, dated July 13, 2012. (Dkt. 24.) In this second letter, Plaintiff wrote, in relevant part:
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