United States District Court, S.D. New York
May 12, 2004.
NEAL GIRALDI & ALLEN PILBEAM, Plaintiffs, -against- BOARD OF PAROLE, STATE OF NEW YORK, Defendant
The opinion of the court was delivered by: ANDREW PECK, Magistrate Judge
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.*fn1
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).
FILING OF OBJECTIONS TO THIS REPORT AND
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).