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Irabor v. New York State Department of Corrections

February 27, 2008

LARRY IRABOR, PLAINTIFF,
v.
NEW YORK STATE DEPARTMENT OF CORRECTIONS, ET AL., DEFENDANTS.



DECISION and ORDER

I. Background

The Clerk has sent to the Court an amended complaint filed by Larry Irabor ("plaintiff" or "Irabor") in accordance with this Court's October 30, 2007 Order.

The October Order found that plaintiff failed to set forth sufficient facts to permit this Court to find that his complaint stated a viable cause of action. Dkt. No. 6. However, the Court permitted plaintiff an opportunity to file an amended complaint.

II. The Amended Complaint

A. Plaintiff's Allegations

The amended complaint reveals that on November 13, 2006 plaintiff acknowledged receipt of a "Notice of Untried Indictment, Information or Complaint, and of Right to Request Disposition."

Dkt. No. 8, Exhibit C-2. On December 29, 2006 plaintiff requested "a form according to section 580.20 C.P.L. on speeding (sic) trial on my case in the state of CT." Id., Exhibit C.*fn1

On January 4, 2007 plaintiff executed "Form II Agreement on Detainers." Id, Exhibit C-3.*fn2 In Form II, plaintiff requested that the pending charges be brought to final disposition, agreed "that this request shall be deemed to be my waiver of extradition" and "consent by me to the production of my body in any court where my presence may be required to effectuate the purpose of the Agreement on Detainers ...", and requested that the court in the receiving state*fn3 appoint counsel "for purposes of any proceedings preliminary to trial ... which may take place before his/her delivery to the jurisdiction ..." Id.

Plaintiff alleges that on January 4, 2007 he made a request for a pre-transfer hearing. According to the exhibits annexed to the amended complaint, this request was directed to the Superintendent of Mt. Mc Gregor Correctional Facility and requested that the Superintendent "arrange for me to have a telephone or video conference ex rel Pre-Transfer Hearing ... authorized under the Uniform Criminal Extradition Act ... This conference is requested in effect to seek dismissal of both the IAD Warrant lodged against me as well as the attending criminal charges." Id., Exhibit E. Plaintiff alleges that the Inmate Records office responded to the January 4, 2007 request on January 16, 2007. Id., paragraph 6. Attached to the amended complaint is a January 16, 2007 memorandum stating that Inmate Records Office personnel met with plaintiff on January 11, 2007. Id., Exhibit F. The memorandum further states that, in the meeting, it was explained to plaintiff that the documents he signed indicated his consent to be transported to Connecticut, and that the facility is awaiting a reply from Connecticut as to whether they were going to act on plaintiff's consent. The memorandum further states that plaintiff's situation is not an extradition, and extradition laws would not apply. Id.

On January 17, 2007 plaintiff sent another request for a pre-transfer hearing. Id., Exhibit G-1.*fn4

Plaintiff alleges that on January 18, 2007 he sent another request for a pre-transfer hearing to Inmate Records. Id., paragraph 7. That request states "What I am asking for is 'Pre-Transfer Hearing.' Before going to State of Connecticut. N.Y.S. Corr. Law. Sec. 104(F)-1cc. I'm entitled for this my NYS State Correction Law." Id., Exhibit G-2. Plaintiff alleges that he received a response to the January 18, 2007 request on January 22, 2007.*fn5 Id., paragraph 8.

Plaintiff alleges that on February 21, 2007 he received the State of Connecticut's acceptance of his request for disposition on the pending charges. Id., paragraph 9. Plaintiff also alleges that Connecticut State Police took him into custody on February 21, 2007, and transported him to Connecticut for his trial. Id., paragraph 10.

B. Plaintiff's Claims

Plaintiff alleges that the defendants should have informed him of his rights prior to his signing of the IAD forms, and should have informed him on how to obtain a pre-transfer hearing. Plaintiff further alleges the defendants failed to provide him with a pre-transfer hearing. Based upon these allegations, plaintiff ...


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