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March 25, 2002


The opinion of the court was delivered by: Conner, Senior U.S. District Judge


Pro se plaintiff Osvaldo Fermin-Rodriquez, a/k/a Oswald Fermin, brings the instant action under 42 U.S.C. § 1983*fn1 against defendant Westchester County Jail Medical Personnel ("WCJ Medical"), and defendants United States Attorney Mary Jo White, Assistant United States Attorney David Greenwald, and United States Marshals Service for the Southern District of New York ("USMS") (collectively the "federal defendants"). Plaintiff alleges: (1) deliberate indifference to medical care and inadequate visitation privileges in violation of the Eighth Amendment against WCJ Medical; and (2) denial of due process under the Fifth Amendment against the federal defendants for failing to transfer plaintiff from a county jail, where he was held as a federal detainee, to state custody after a federal indictment against him was dismissed. The federal defendants now move to dismiss the Amended Complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim. For the reasons set forth below, the federal defendants' motion is granted.


The following discussion of the facts is based on the allegations in plaintiffs' Amended Complaint as well as undisputed background information provided by both parties.*fn2 On November 1, 1995, plaintiff was convicted of assault in the first degree and witness intimidation in the third degree, and was sentenced to a term of imprisonment between nine and one half and nineteen years. (Reisbaum Decl. ¶ 2.) Plaintiff was incarcerated at Green Haven Correctional Facility ("Green Haven"), a facility operated by the New York State Department of Corrections ("State DOC"). (Id. at ¶ 2; Am. Complt. ¶ 8.) On April 21, 1997, while plaintiff was incarcerated at Green Haven, the United States filed a federal indictment, see United States v. Fermin, No. 97 Cr. 386, charging plaintiff with illegal re-entry into the United States following a 1992 deportation. (Reisbaum Decl. ¶ 3; Am. Complt. ¶ 9.) Pursuant to a writ of habeas corpus ad prosequendum, plaintiff was transferred to federal custody for presentment on the federal charges. (Pl. Mem. Opp. Mot. Dismiss, Ex. B.) Because of overcrowding at federal detention centers, plaintiff was transferred from Green Haven to Westchester County Jail ("WCJ") where he was held as a federal detainee. (Am. Complt. ¶ 10-11.) On April 2, 1998, the federal indictment against plaintiff was dismissed, and the government did not appeal the decision within the allotted thirty-day time period. (Id. ¶ 27, 29.) However, plaintiff remained a federal detainee at WCJ and was not returned to the custody of the State DOC until January 22, 1999, eight and one half months after the government's time period for appeal had expired. (Id. ¶ 32.)

Plaintiff alleges that the he enjoyed better living conditions and quality of life as a state detainee at Green Haven than as a federal detainee at WCJ. For example, plaintiff claims that he suffers from severe back pain, a bad skin condition and a sleep disorder. (Id. ¶ 13.) As a federal detainee at WCJ, plaintiff claims that he sought medical attention for these ailments, but was dissatisfied with the treatment provided by WCJ Medical. (Id. ¶ 16.) In addition, plaintiff explains that while incarcerated at Green Haven, prison officials allowed him weekly visits from his wife and three children, conjugal visits with his wife every three to four months, and visits from his mother using her Public Assistance photo identification card. (Id. ¶ 20-22.) In contrast, WCJ only allowed two of plaintiffs' children to visit at the same time, did not provide for conjugal visits with his wife and refused his mother visitation privileges because her Public Assistance photo identification card was insufficient. (Id. ¶ 23-25.)

According to plaintiff, his wife divorced him for abandonment and cruel and unusual punishment during the time he was held as a federal detainee at WCJ following the dismissal of his federal indictment. (Id. ¶ 33.) Plaintiff alleges that the divorce resulted from WCJ's denial of conjugal visits, and because his wife could not afford to hire a babysitter for one of their children while the other two children visited the prison. (Id.) Plaintiff also alleges that the divorce and inadequate visitation with his family caused extreme depression and a psychotic state of mind. (Id. ¶ 34.)


I. Standard of Review

On a motion to dismiss under Rule 12(b)(6), the issue is "whether the claimant is entitled to offer evidence to support the claims." Scheuer, 416 U.S. at 236; Hertz Corp., 1 F.3d at 125. A complaint should not be dismissed for failure to state a claim "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief" Padavan v. United States, 82 F.3d 23, 26 (2d Cir. 1996) (quoting Hughes v. Rowe, 449 U.S. 5, 10 1980). Generally, "[c]onclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss." 2 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE § 12.34 [1][b] (3d ed. 1997); see also Hirsch v. Arthur Andersen & Co., 72 F.3d 1085, 1088 (2d Cir. 1995). At the same time, pro se complaints "are held to `less stringent standards than formal pleadings drafted by lawyers,' and are to be construed liberally on a motion to dismiss." Van Ever v. New York State Dep't of Corr. Servs., No. 99 Civ. 12348, 2000 WL 1727713, at *2 (S.D.N.Y. Nov. 21, 2000) (citations omitted).

II. Fifth Amendment Claim*fn3

Plaintiff claims that the federal defendants violated his due process rights under the Fifth Amendment by failing to return him to the custody of the State DOC following the thirty-day period after his federal indictment was dismissed and not appealed. In support of his claim for denial of due process, plaintiff maintains that he was entitled to the improved quality of life and living conditions that existed at Green Haven as compared to WCJ.*fn4

It is well settled that the transfer of a prisoner from one correctional facility to another does not automatically trigger the protection of the Fifth Amendment.

[T]he Due Process Clause [does not] protect a duly convicted prisoner against transfer from one institution to another within the state prison system. Confinement in any of the State's institutions is within the normal limits or range of custody which the conviction has authorized the State to impose.

Meachum, 427 U.S. at 224; see also Meriwether v. Coughlin, 879 F.2d 1037, 1047 (2d Cir. 1989) ("Plaintiff[] did not have a blanket liberty interest in remaining at Green Haven, and, in the absence of a constitutionally impermissible motive, []could have been transferred without a hearing for any reason."). The same applies to transfers between federal and state prisons and between different state prison systems. See McCarthy v. Teta, 101 F.3d 108, text in 1996 WL 115330, at *2 (2d Cir. 1996) (stating that prisoners do not "have a liberty interest in a transfer to a federal prison or a different state prison system"); Matter of Sindona, 584 F. Supp. 1437, 1443-44 (E.D.N.Y. 1984) (stating that the due process clause "in and of itself does not protect a duly convicted prisoner against transfer from one institution to another within either the state or the federal prison system"). Furthermore, the transfer to a prison with harsher conditions of confinement does not invoke the due process clause. See Meachum, 427 U.S. at 224-25; Kivela v. United States Attorney Gen., 523 F. Supp. 1321, 1324-25 (S.D.N.Y. 1981). As the Supreme ...

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