United States District Court, W.D. New York
June 15, 2005.
THOMAS A. BUTTI, Petitioner,
BRIAN FISCHER, Superintendent of Sing Sing Correctional Facility, Respondent.
The opinion of the court was delivered by: VICTOR BIANCHINI, Magistrate Judge
DECISION AND ORDER
Petitioner, Thomas A. Butti ("Butti"), filed this petition pro
se for a writ of habeas corpus pursuant to 28 U.S.C. § 2254
alleging that his due process rights were violated at a
disciplinary proceeding, resulting in the loss of six months good
time credit. (Dkt. #1). Respondent has filed an answer to the
petition (Dkt. #4) and the parties have consented to proceed
before a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt.
#8). On May 26, 2005, this case was referred to the undersigned
for all further proceedings. (Dkt. #9).
Since the filing of his petition, Butti was paroled from DOCS's
custody on April 18, 2005. See DOCS Inmate Lookup at
http://www.docs.state.ny.us. Butti's parole implicates
considerations for this Court with respect to whether or not the
petition is moot because it no longer satisfies the case or
controversy requirement of Article III, § 2 of the
As is the case with all litigants in federal court, petitioner
must satisfy the `case or controversy' requirement of Article
III, § 2, of the Constitution in order to be eligible for relief. "A case becomes moot if, at any stage of
the proceedings, it fails to satisfy the case-or-controversy
requirement of Article III, Section 2, of the Constitution."
Kamagate v. Ashcroft, 385 F.3d 144, 150 (2d Cir. 2004)
(emphasis added), citing Spencer v. Kemna, 523 U.S. 1, 7
(1998); accord Marrero Pichardo v. Ashcroft, 374 F.3d 46, 51
(2d Cir. 2004) and Swaby v. Ashcroft, 357 F.3d 156, 159-60 (2d
Cir. 2004). "In order for a habeas petitioner who is no longer
in custody to demonstrate a case or controversy, a concrete and
continuing injury that is a collateral consequence of the
detention and can be remedied by granting the writ must exist."
So v. Reno, 251 F.Supp.2d 1112, 1120 (E.D.N.Y. 2003) (internal
quotation marks omitted and emphasis added) (citing, Spencer,
523 U.S. at 7, 118 S.Ct. 978 and Gonzalez v. INS, 2002 WL
31444952, at *3 (S.D.N.Y. 2002)); see also, Perez v. Greiner,
296 F.3d 123, 125 (2d Cir. 2002).
It is therefore ORDERED that, by or before August 15, 2005,
petitioner file a Memorandum of Law demonstrating a concrete
injury which continues to result as a consequence of the denial
of good time that can be remedied by granting the writ, or the
petition herein will be dismissed as moot.
Further, as stated above, The DOCS Inmate Lookup at
http://www.docs.state.ny.us. reflects Butti's parole as of
April 18, 2005. There is no information on his whereabouts after
release. To date, the only address on the Court's Docket for
Butti is the Livingston Correctional Facility in Sonyea, New
York. Based on this, it appears that Butti has failed to provide
the Court with an address where papers may be served.
The Local Rules of Civil Procedure requires that a party
proceeding pro se "must furnish the Court with a current address at which papers
may be served on the litigant. . . . . In addition, the Court
must have a current address at all times. Thus a pro se
litigant must notify the Court immediately in writing of any
change of address. Failure to do so may result in dismissal of
the case with prejudice". Local Rules of Civil Procedure for the
United States District Court of the Western District of New York,
Rule 5.2(d) (emphasis added)
Accordingly, petitioner is directed to provide the Court with
an address where papers may be served by August 15, 2005 or the
case will be dismissed with prejudice
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