Opinion
03 Civ. 6552 (DAB) (AJP)
May 12, 2004
REPORT AND RECOMMENDATION
Pro se plaintiffs Neal Giraldi and Alien Pilbeam bring this action for declaratory and injunctive relief and for damages against the State Board of Parole, under the Americans with Disabilities Act and the Rehabilitation Act. Plaintiffs assert that the Parole Board is denying them parole based on their former disabilities (drug use and mental illness) and/or perception of their disabilities.
When the complaint originally was filed, plaintiff Giraldi was at the Mid-Orange Corretional Facility, which is in this District, while plaintiff Pilbeam was in the Franklin Correctional Facility, in the Northern District of New York. (Dkt. No. 1: Compl. ¶¶ 2-3.)
By Order dated August 25, 2003, Chief Judge Mukasey directed plaintiffs to file an Amended Complaint. (Dkt. No. 2: 8/25/03 Order.) After receiving extensions, plaintiffs filed their Amended Complaint on December 9, 2003. (Dkt. No. 5: Am. Compl.) At that time, plaintiff Giraldi was no longer incarcerated in this District — he was incarcerated at the Five Points Correctional Facility, in the Western District of New York. (Am. Compl. ¶ 2.) Plaintiff Pilbeam was and is incarcerated at the Mid-State Correctional Facility, in the Northern District of New York. (Am. Compl. ¶ 3.) Plaintiffs have not yet had the Amended Complaint served on the Parole Board or the Attorney General's Office.
Thus, at the time of filing of the Amended Complaint — which is the operative pleading — neither plaintiff was incarcerated in this District. The Court also notes that the Parole Board's main office is in Albany, in the Northern District of New York.
For the convenience of the parties and in the interest of justice and the proper allocation of judicial resources, I sua sponte recommend that the Court transfer this action pursuant to 28 U.S.C. § 1404(a) to the United States District Court for the Norther District of New York. See, e.g., Lead Indus. Ass'n, Inc. v. Occupational Safety and Health Admin., 610 F.2d 70, 79 n. 17 (2d Cir. 1979) ("The broad language of 28 U.S.C. § 1404(a) would seem to permit a court to order transfer sua sponte."); Boyd v. Senkowski, No. 94 CV 2319, 1995 WL 302474 at *2 (E.D.N.Y. May 10, 1995) (transfers prisoner action alleging that defendants failed to protect him at prison in N.D.N.Y. to the N.D.N.Y.);Pierce v. Coughlin, 806 F. Supp. 426, 428-29 (S.D.N.Y. Nov. 5, 1992) (transfer to N.D.N.Y. warranted where "operative facts all occurred at the Shawangunk facility, in the Northern District" and "many relevant documents are located at Shawangunk, or in the central files of the Department of Correctional Services in Albany, and that any files regarding [prisoner's] Article 78 proceeding would be located in Clinton County. All these locations are in the Northern District.");Nowak v. Coombe, 91 Civ. 7335, 1992 WL 212374 at *l-2 (S.D.N.Y. Aug. 25, 1992) (severs claims relating to events at Collins Correctional Facility and transfers to W.D.N.Y. where that prison is located): Davidson v. Riley, 84 Civ. 6569, 1988 WL 108428 at *2 (S.D.N.Y. Sept. 30, 1988) (transfers action to N.D.N.Y where the plaintiff is incarcerated and where two of the three prisons involved in suit are located and where DOCS central office is located).
The Northern District Court can consider whether it makes sense to keep the two plaintiffs' cases together or separate them and transfer Giraldi's case to the Western District of New York. Until the Parole Board answers the complaint, this Court cannot determine whether the issues in the case will involve a central Parole Board policy or rather the application of numerous facts to the separate parole considerations as to each plaintiff.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Deborah A. Batts, 500 Pearl Street, Room 2510, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Batts. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Am, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988): McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).