United States District Court, W.D. New York
April 4, 2014
COLIN J. HALEY, Petitioner,
DIRECTOR TODD TRYON, Buffalo Federal Detention Center; OIG, Department of Homeland Security; MICHAEL PHILLIPS; LIEUTENANT EDMINSTER; LIEUTENANT VILLA; LIEUTENANT VOHWINKEL; OFFICER FASSL; MAJOR VALADE, Respondents.
DECISION AND ORDER
FRANK P. GERACI, Jr., District Judge.
Petitioner, Colin J. Haley, who was detained at the Buffalo Federal Detention Facility ("BFDF") subject to a final order of removal, filed a "Motion for a Writ of Mandamus, " which was docketed as a Petition for a Writ of Habeas Corpus, asking the Court to issue a "[s]tay of deportation in the interest of justice for to [sic] protect the Constitutional safeguards of my due process, " and a "Writ of Mandamus along with Injunction Relief which in [this Court], Injunction case # 13cv700." (Docket No. 1.) Petitioner presumably was seeking a writ of mandamus to stay his removal so that he could continue to prosecute a prior action he had filed in this Court, pro se, which sought damages for alleged violations of the Victims' Rights Act, 18 U.S.C. § 3771, Victim and Witness Protection Act of 1982, 18 U.S.C. § 3663, and Mandatory Victims Restitution Act of 1986, 18 U.S.C. § 3663A, and violations of his "basic Due Process Rights." ( Haley v. Tryon, et al., 13-CV-0700M). Petitioner alleged in that prior case that the same respondents sued herein - Todd Tryon and Michael Phillips, employees of the Department of Homeland Security and supervisory officials of BFDF, OIG, Department of Homeland Security, and Lt. Edminster, Lt. Villa, Lt. Vohwinkel and Officer Fassl, non-federal employees of a private independent contractor providing guard services at BFDF - failed to bring criminal charges against another detainee (cellmate) who had assaulted him. That action was dismissed, pursuant to 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim upon which relief can be granted, on the bases that the victim and witness rights statutes sued under did not create private rights of action and that there was no constitutional right to have criminal charges brought against another individual. ( Haley v. Tryon, et al., 13-CV-0700M, Docket No. 3, filed October 31, 2013 (citation omitted)).
Petitioner was removed from this country on or about November 18, 2013, and therefore any claim for relief sought herein - a writ of mandamus staying removal pending adjudication of Haley v. Tryon, 13-CV-0700M - even if the Court had jurisdiction to entertain a request for such relief - is moot. Cf. Leybinsky v. United States Immigration and Customs Enforcement, ___ Fed.App'x ___, 2014 WL 503188 (2d Cir. Feb. 10, 2014) (Summary Order) (petitioner's release from ICE custody pending removal pursuant to a final order of removal moots his petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241); Arthur v. DHS/ICE, No. 09-CV-6130-CJS-VEB (W.D.N.Y. April 15, 2010) (Dkt. #19, Report and Recommendation) (petition for a writ of habeas corpus seeking release from detention pending removal moot upon removal of petitioner). Moreover, the action that was the reason for petitioner seeking the stay herein, Haley v. Tryon, 13-CV-0700M, has been dismissed and thus the express reason for seeking the stay is also moot.
IT IS HEREBY ORDERED that the motions to proceed in forma pauperis are granted and the instant Petition/Motion for a Writ of Mandamus is dismissed;
FURTHER, all other pending motions are denied as moot and the Clerk of the Court is directed to close this matter; and
FURTHER, that any appeal from this order would not be taken in good faith, see Coppedge v. United States, 369 U.S. 438 (1962) and, therefore, the Court denies leave to appeal as a poor person.