Opinion
No. 02 Civ. 5219 (AJP).
August 4, 2004
OPINION AND ORDER
Pro se plaintiff Kevin Lynch brings this action under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999 (1971), alleging that (1) defendants Frederick Menifee, Warden at the Otisville Federal Correctional Institution ("FCI Otisville"), and Delbert G. Sauers, former Inmate Systems Manager at FCI Otisville, transferred Lynch to New York State custody to face a murder charge without a pre-transfer administrative hearing in violation of the Interstate Agreement on Detainers ("IAD"), 18 U.S.C. App. 2, and Lynch's "constitutional rights to due process of law" (Dkt. No. 2: Compl. at 2-2c, ¶¶ 2-4); and (2) as a result of this unlawful transfer, Lynch was mistreated by New York State prison officials and suffered mental anguish (Compl: at 3c-3e). Lynch seeks monetary damages and dismissal of his federal sentence, claiming that upon his transfer to state custody, the federal authorities lost jurisdiction over him. (Compl. at 5;see generally Lynch Opp. to Defs. Motion to Dismiss.)
Defendants have moved to dismiss Lynch's complaint, arguing that: (1) Lynch is not entitled to relief under Bivens because his claim is predicated on a purported violation of the IAD, which does not constitute an infringement of a constitutional right and thus his claim is not cognizable under Bivens (Dkt. No. 14: Defs. Br. at 4-6); (2) Lynch was not entitled to a pre-transfer hearing under the IAD, the Constitution, or any other law (Defs. Br. at 6-8); (3) even assuming arguendo that Lynch could claim relief under Bivens and that defendants were required to provide a hearing prior to Lynch's transfer to New York State custody, such failure did not proximately cause Lynch any cognizable injury, since the state murder charges against Lynch were ultimately dismissed with prejudice (Defs. Br. at 8-9); and (4) Lynch's claim that defendants violated the IAD by failing to provide a pre-transfer hearing cannot form the basis for the habeas-type relief of dismissal of his federal sentence; such relief could only possibly extend to the state murder charges, which were dismissed (Defs. Br. at 9-10).
The case was referred to me on May 17, 2004 (Dkt. No. 7), and the parties consented to disposition of this case by me as a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 16: § 636(c) Consent; see also Dkt. No. 10:5/27/04 Hearing Tr. at 21-22.)
For the reasons set forth below, defendants' motion to dismiss with prejudice is GRANTED in its entirety.
FACTS
Plaintiff Kevin Lynch was arrested by United States Marshals and taken into custody in Prince Georges County, Maryland on December 10, 1992. (Dkt. No. 2: Compl. at 3; Compl. Ex. New York District Attorney's Office "Chronology" at 1.) On December 23, the New York County District Attorney's Office indicted Lynch for second degree murder. (Compl. at 3; Chronology at 1.) On January 11, 1993, Lynch waived extradition and was taken to New York and arraigned on the murder charge on January 19. (Compl. at 3; Chronology at 1.) In February 1993, while in New York custody, Lynch was indicted on federal narcotics charges in Maryland (Compl. at 3; Chronology at 1.)Between March and September 1993, Lynch was engaged in plea negotiations with the Maryland U.S. Attorney's Office and the New York County District Attorney's Office, but in order for the New York state sentence to run concurrently, federal sentencing guidelines required that Lynch first be sentenced on the federal charges, then brought back to New York to face the state murder charges. (Chronology at 1.)
To accomplish this, on September 21, 1993, Lynch was released (to the U.S. Marshals) by New York County on $1.00 bail and taken back to Maryland by the Marshals. (Compl. at 3, 3b; Chronology at 1.) Nine days later; on September 30, the New York District Attorney's Office revoked Lynch's $1.00 bail and filed a detainer against Lynch. (Compl. at 3,3b; Chronology at 1.)
In its brief, the government claims that the District Attorney's Office lodged its detainer with federal authorities on "September 3, 1993." (Dkt. No. 14: Defs. Br. at 2-3.) This Court construes that date as a typographical error for September 30, 1993," since the September 21 date of Lynch's release on bail is unconstested.
"A detainer is filed against a prisoner in order to inform the institution where he is incarcerated that he is wanted for trial on charges pending in another jurisdiction." United States v. Roy, 771 F.2d 54, 57 (2d Cir. 1985), cert. denied, 475 U.S. 1110, 106 S.Ct. 1520 (1986); see also, e.g., Alabama v. Bozeman, 533 U.S. 146, 148, 121 S.Ct. 2079, 2082 (2001) (A detainer is "a legal order that requires a State in which an individual is currently imprisoned to hold that individual when he has finished serving his sentence so that he may be tried by a different State for a different crime.").
On June 10, 1994, Lynch was convicted after trial in federal court in Maryland of federal narcotics charges and sentenced to twenty years imprisonment. (Compl. at 3, 3b; Chronology at 2.) On June 29, the District Attorney's Office (with the approval of the state court) served its IAD Form V ("Request for Temporary Custody") on the federal prison system in order to secure custody of Lynch to face the New York state murder charge. (Compl. at 3; Chronology at 2.) On August 6, 1994, the federal correctional institution ("FCI") in Springfield, Illinois, acknowledged receipt of the New York District Attorney's Form V and offered to provide temporary custody of Lynch upon submission of an IAD Form VI ("Evidence of Agent's Authority to Act for Receiving State"). (Compl. at 3; Chronology at 2.) On December 12, 1994, the District Attorney's Office received notification that Lynch had been transferred to FCI Lewisburg (Pennsylvania) and, on January 12, 1995, that New York's IAD Form V was on file at FCI Lewisburg. (Compl. at 3; Chronology at 2.)
Federal prison files show that these three notifications were made, but the D.A.'s file had no copies of the documents from FCI Springfield or FCI Lewisburg. (Chronology at 2.)
Five and a half years later, on July 12, 2000, FCI Otisville notified the New York District Attorney's Office that Lynch had been transferred there and that FCI Otisville still had the 1994 IAD Form V on file but that the D.A.'s Office should file a new request if New York State still wished to obtain custody of Lynch. (Compl. at 3; Chronology at 2.) The District Attorney's Office filed a new IAD Form V for custody of Lynch on November 1, 2000. (Compl. at 3; Chronology a 2; Compl. Ex.: 11/1/00 IAD Form V.) FCI Otisville acknowledged receipt of the new Form V in a letter from defendant Delbert G. Sauers dated January 10, 2001. (Compl. at 3; Compl. Ex.: 1/10/01 FCI Letter to D.A.'s Office; Chronology at 3.) In that same letter, Sauers advised the D.A.'s Office that "[i]nmates who are temporarily transferred pursuant to the IADA [Interstate Agreement on Detainers Act] remain under the primary jurisdiction of federal authorities" and that "under Article V(e) of the IADA, [New York State was] required to return [Lynch] to [FCI Otisville] after prosecution on all pending charges." (Compl. Ex.: 1/10/01 FCI Letter to D.A.'s Office; see Dkt. No. 14: Defs. Br. at 3.)
One week later, on January 18, 2001, Lynch challenged his transfer to New York by "caus[ing] to deliver a self-styled habeas corpus" petition to the New York Supreme Court, "with copies forwarded to the defendants." (Compl. at 2, 3; see Defs. Br. at 3.) FCI Otisville forwarded copies of Lynch's pro se state habeas corpus petition to the District Attorney's Office on January 23, 2001. (Compl. at 3; Chronology at 3; Defs. Br. at 3.)
Warden Menifee also wrote to Lynch in response to Lynch's opposition to his transfer to state custody, that:
Although I remain sensitive to your concerns, the Bureau Of Prisons will not contest the temporary transfer of custody in your case, to New York authorities. Please continue to address your concerns regarding this matter to the attention of the Supreme Court Of The State Of New York and court in which the proceedings regarding the [state] charges will be held.
(Dkt. No. 15: 6/7/04 Lynch Letter to Court, Ex.: 1/23/01 Menifee Letter to Lynch.)
Between January 23 and his transfer to New York on February 9, 2001, Lynch alleges that he spoke with the defendants "on numerous occasions . . . to discuss his rights to contest New York's authority to secure him." (Compl. at 3; see Defs. Br. at 3.) According to Lynch, defendant Warden Frederick Menifee "admitted that he did not `know' the legal procedures concerning an inmate's rights to challenge" a transfer. (Compl. at 2; see Defs. Br. at 3.) According to Lynch, defendant Sauers, however, told Lynch that "he could send [Lynch] to any jurisdiction that wanted [him] on an untried indictment or information . . . regardless of any rights [Lynch] `thought' he was entitled to." (Compl. at 2-2a, 3a.)
Lynch ultimately was transferred involuntarily to New York State custody on February 9, 2001. (Compl. at 2a, 3a; Chronology at 3; Defs. Br. at 3.) Soon thereafter, Lynch moved to dismiss the state murder indictment on the ground that "the People failed to act in a timely manner . . . to obtain custody of [Lynch] from federal authorities." (Compl. Ex.: A.D.A. Hurley Aff. in Resp. to Lynch Mot. to Dismiss ¶ 3.) Specifically, Lynch claimed that "the People failed to accept temporary custody of [him] after the same was offered by federal authorities in 1994 and that this failure require[d] dismissal of the indictment pursuant to Article IV, Paragraph c of the Interstate Agreement on Detainers." (Compl. Ex.: A.D.A. Hurley Aff. ¶ 3.) The District Attorney's Office conceded that Lynch's claim "ha[d] merit" and therefore sought to adjourn the matter so that the D.A.'s Office could file a "Recommendation for Dismissal." (Compl. Ex.: A.D.A. Hurley Aff. ¶¶ 4, 5.) On June 8, 2001, the New York indictment against Lynch was dismissed with prejudice, and Lynch was returned to FCI Otisville one week later on June 15, 2001. (Compl at 2a, 3a; Compl. Ex.: IAD Form IX, "Prosecutor's Report on Disposition of Charges"; Defs. Br. at 3-4.)
On or about July 17, 2001, Lynch brought this suit against defendants Menifee and Sauers pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999 (1971). (Dkt. No. 2: Compl.) The matter was referred to me on May 17, 2004. (Dkt. No. 7.) Presently before the Court is defendants' motion to dismiss (Dkt. Nos. 13-14), which was filed on or about June 14, 2004.
Under Bivens and its progeny, federal courts can hear suits for money damages against government officials accused of violations of constitutional rights. Bivens v. Six Unknown Named Agents, 403 U.S. at 396-97, 91 S.Ct. at 2004-05; see also, e.g., Carlson v. Green, 446 U.S. 14, 18-19, 100 So. Ct. 1468, 1471 (1980) ("Bivens established that the victims of a constitutional violation by a federal agent have a right to recover damages against the official in federal court despite the absence of any statute conferring such a right."). As Justice Harlan wrote in his oft-cited concurrence in Bivens: "[F]ederal courts do have the power to award damages for violation of `constitutionally protected interests' and I agree with the Court that a traditional judicial remedy such as damages is appropriate to the vindication of the personal interests protected by the Fourth Amendment." Bivens, 403 U.S. at 399, 91 S.Ct. at 2006 (Harlan, J. concurring); see also Erwin Chemerinsky, Federal Jurisdiction § 9.1.2 (2d ed. 1994). The Supreme Court subsequently expanded the Bivens doctrine to provide money damages for infringements of other constitutional rights by federal officers. See, e.g., Farmer v. Brennan, 511 U.S. 825, 828-34, 114 S.Ct. 1970, 1974-78 (1994); Schweiker v.Chilicky, 487 U.S. 412, 421, 108 S.Ct. 2460, 2466-67 (1988) (summarizing causes of action recognized under Bivens); Davis v. Passman, 442 U.S. 228, 243-45, 99 S.Ct. 2264, 2276-77 (1979); see also, e.g., Erwin Chemerinsky, Federal Jurisdiction § 9.1.2 at pp. 528-29 ("[I]n subsequent decisions the [Supreme] Court recognized the existence of causes of action for infringements of the Fifth, Eighth and First Amendments. Lower federal courts have recognized Bivens suits for violations of the First, Fourth, Fifth, Eighth, Ninth and Fourteenth Amendments.") (fns. citing cases omitted);Schweitzer v. Department of Veterans Affairs, No. 01-6067, Fed. Appx. 57, 59, (table), 2001 WL 1512421 at *2 (2d Cir. Nov. 26, 2001) ("Bivens actions for damages against federal officers [are] permitted for violations of the Due Process Clause of the Fifth Amendment."), cert. denied, 535 U.S. 955, 122 S.Ct. 1359 (2002); Tellier v. Fields, 230 F.3d 502, 508 (2d Cir. 2000) (Bivens claim based on violations of procedural due process rights under the Due Process Clause of the Fifth Amendment);Noguera v. Hasty, 99 Civ. 8786, 2000 WL 1011563 at *8-9 (S.D.N.Y. July 21, 2000) (Peck, M.J.), report rec. adopted in part, 2001 WL 243535 (S.D.N.Y. Mar. 12, 2001) (Wood, D.J.).
ANALYSIS
I. THE STANDARD GOVERNING A MOTION TO DISMISSA district court should deny a Rule 12(b)(6) motion to dismiss "`unless it appears to a certainty that a plaintiff can prove no set of facts entitling him to relief.'" IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1052 (2d Cir. 1993) (quotingRyder Energy Distrib. Corp. v. Merrill Lynch Commodities Inc., 748 F.2d 774, 779 (2d Cir. 1984)), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994). A court must accept as true the facts alleged in the complaint and draw all reasonable inferences in favor of the nonmoving party — here, the plaintiff.Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir. 1989).
Accord, e.g., Weinstein v. Albright, 261 F.3d 127, 131 (2d Cir. 2001); In re Scholastic Corp. Sec. Litig., 252 F.3d 63, 69 (2d Cir.), cert. denied, 534 U.S. 1071, 122 S.Ct. 678 (2001); Grandon v. Merrill Lynch Co., 147 F.3d 184, 188 (2d Cir. 1998).
Accord, e.g., Weinstein v. Albright, 261 F.3d at 131; In re Scholastic Corp. Sec. Litig., 252 F.3d at 69.
The "standards for dismissal under [Rule] 12(b)(6) and 12(b)(1) are substantively identical." Lerner v. Fleet Bank, N.A., 318 F.3d 113, 128 (2d Cir.), cert. denied, 124 S.Ct. 532 (2003);see also, e.g., Moore v. Paine Webber, Inc., 189 F.3d 165, 169 n. 3 (2d Cir. 1999); Bishop v. Porter, 02 Civ. 9542, 2003 WL 21032011 at *3 (S.D.N.Y. May 8, 2003); Tennant v. United States Bureau of Prisons, 02CV00558, 2003 WL 1740605 at *1 (D. Conn. Mar. 29, 2003).
The only substantive difference is "that the party invoking the jurisdiction of the court has the burden of proof in a 12(b)(1) motion, in contrast to a 12(b)(6) motion, in which the defendant has the burden of proof." Lerner v. Fleet Bank, N.A., 318 F.3d at 128 (citing Thompson v. County of Franklin, 15 F.3d 245, 249 (2d Cir. 1994)); see also, e.g., Langella v. Bush, 306 F. Supp.2d 459, 463 (S.D.N.Y. 2004) ("On a motion to dismiss pursuant to Rule 12(b)(1), plaintiff carries the burden of establishing that subject matter jurisdiction exists over his complaint."); Bishop v. Porter, 2003 WL 21032011 at *3.
A motion to dismiss challenges only the face of the pleading. Thus, in deciding a motion to dismiss, "the Court must limit its analysis to the four corners of the complaint." Vassilatos v.Ceram Tech Int'l Ltd., 92 Civ. 4574, 1993 WL 177780 at *5 (S.D.N.Y. May 19, 1993) (citing Kopec v. Coughlin, 922 F.2d 152, 154-55 (2d Cir. 1991)). The Court, however, may consider documents attached to the complaint as an exhibit or incorporated in the complaint by reference. E.g., Yak v.Bank Brussels Lambert, BBL (USA) Holdings, Inc., 252 F.3d 127, 130 (2d Cir. 2001) (citing Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991), cert. denied, 503 U.S. 960, 1125 S.Ct. 1561 (1992)); Rothman v. Gregor, 220 F.3d 81, 88 (2d Cir. 2000) ("For purposes of a motion to dismiss, we have deemed a complaint to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference. . . ."). Here, Lynch attached to his complaint copies of several documents, discussed at pages 3-6 above. The Court can properly consider these documents in ruling on defendants' motions to dismiss.
Accord, e.g., Aniero Concrete Co. v. New York City Constr. Auth., 94 Civ. 3506, 2000 WL 863208 at *31 (S.D.N.Y. June 27, 2000); Six West Retail Acquisition, Inc. v. Sony Theatre Mgmt. Corp., 97 Civ. 5499, 2000 WL 264295 at *12 (S.D.N.Y. Mar. 9, 2000) ("When reviewing the pleadings on a motion to dismiss pursuant to Rule 12(b)(6), a court looks only to the four corners of the complaint and evaluates the legal viability of the allegations contained therein.").
When additional materials are submitted to the Court for consideration with a 12(b)(6) motion, the Court must either exclude the additional materials and decide the motion based solely upon the complaint, or convert the motion to one for summary judgment under Fed.R.Civ.P. 56. See Fed.R.Civ.P. 12(b); Friedl v. City of New York, 210 F.3d 79, 83 (2d Cir. 2000); Fonte v. Board of Managers of Cont'l Towers Condos, 848 F.2d 24, 25 (2d Cir. 1988).
See also, e.g., Paulemon v. Tobin, 30 F.3d 307, 308-09 (2d Cir. 1994); Brass v. American Film Tech., Inc., 987 F.2d 142, 150 (2d Cir. 1993).
The Court's role in deciding a motion to dismiss "`is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.'" Saunders v. Coughlin, 92 Civ. 4289, 1994 WL 88108 at *2 (S.D.N.Y. Mar. 15, 1994) (quoting Geisler v.Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980)); accord, e.g., Watson v. McGinnis, 964 F. Supp. 127, 130-31 (S.D.N.Y. 1997) (Kaplan, D.J. Peck, M.J.). "`[T]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.'"Saunders v. Coughlin, 1994 WL 88108 at *2 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686 (1974)). A Rule 12(b)(6) motion will be granted "`only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.'" Saunders v.Coughlin, 1994 WL 88108 at *2 (quoting Hishon v. King Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232 (1984)).
When reviewing a pro se complaint, the Court must use less stringent standards than if the complaint had been drafted by counsel. See, e.g., LaBounty v. Adler, 933 F.2d 121, 123 (2d Cir. 1991); Watson v. McGinnis, 964 F. Supp. at 131;Saunders v. Coughlin, 1994 WL 88108 at *2 (citing Hughes v.Rowe, 449 U.S. 5, 101 S.Ct. 173 (1980)). However, "[d]ismissal under Rule 12(b)(6) is proper if the complaint lacks an allegation regarding an element necessary to obtain relief. . . ." 2 Moore's Federal Practice § 12.34[4][a], at 12-72.7 (2004). Thus, the "`duty to liberally construe a plaintiff's complaint [is not] the equivalent of a duty to re-write it.'" Id., § 12.34[1][b], at 12-61; see also, e.g., Joyner v. Greiner, 195 F. Supp.2d 500, 503 (S.D.N.Y. 2002) (action dismissed because pro se plaintiff "failed to allege the facts tending to establish" that defendants violated his constitutional rights).
II. DEFENDANTS ARE ENTITLED TO DISMISSAL OF LYNCH'S BIVENS CLAIM
Lynch claims that defendants, acting under color of federal law, violated the Interstate Agreement on Detainers ("LAD"), 18 U.S.C. App. 2, by denying him a pre-transfer hearing in violation of his constitutional right to due process. (Dkt. No. 2: Compl. ¶¶ 2, 3; Compl. at 2-2c.) Consequently, Lynch alleges that pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999 (1971), he is entitled to monetary damages and an injunction terminating his federal sentence. (Compl. ¶ 4; Compl. at 5.) The Court need not reach the issue of whether the deprivation of a pre-transfer hearing constitutes a constitutional due process violation sufficient to state a Bivens claim, because defendants did not violate the Interstate Agreement on Detainers by not providing Lynch a hearing prior to his transfer.
A. Legal Principles Regarding Pre-Transfer Hearings under the IAD
The Interstate Agreement on Detainers "establishes two procedures under which the prisoner against whom a detainer has been lodged may be transferred to the temporary custody of the receiving State to appear for trial in connection with charges against him. Cuyler v. Adams, 449 U.S. 433, 443, 101 S.Ct. 703, 709 (1981).
Under IAD Article III, a prisoner may initiate the transfer by requesting "final disposition of the criminal charges underlying [the] detainers" against him. Cuyler v. Adams, 449 U.S. at 444, 101 S.Ct. at 709. By requesting final diposition, however, the prisoner waives any right to challenge his transfer by way of a pre-transfer hearing. 18 U.S.C.A. App. 2, § 2, Art. III(e); see also, e.g., Bethea v. Warden, Metro. Corr. Ctr., 86 Civ. 289, 1986 WL 13468 at *2 (S.D.N.Y. Nov. 20, 1986) (Prisoner's request for final disposition "triggered the application of Article III of the IAD and, pursuant to Article III(e), constituted a waiver of extradition proceedings and a consent to transfer."). Article III is not involved in this case.
Article III(e) of the Interstate Agreement on Detainers states:
Any request for final disposition made by a prisoner pursuant to paragraph (a) hereof shall also be deemed to be a waiver of extradition with respect to any charge or proceeding contemplated thereby or included therein by reason of paragraph (d) hereof, and a waiver of extradition to the receiving State to serve any sentence there imposed upon him, after completion of his term of imprisonment in the sending State. The request for final disposition shall also constitute a consent by the prisoner to the production of his body in any court where his presence may be required in order to effectuate the purposes of this agreement and a further consent voluntarily to be returned to the original place of imprisonment in accordance with the provisions of this agreement. Nothing in this paragraph shall prevent the imposition of a concurrent sentence if otherwise permitted by law.
Under IAD Article IV, the prosecutor of the receiving state (here, New York) may initiate the transfer by filing "written notice of the custody request" with "the authorities in the sending State." Cuyler v. Adams, 449 U.S. at 444, 101 S.Ct. at 710. After the sending state has received the written notice (i.e., Form V "Request for Temporary Custody"), "there shall be a period of thirty days . . . before the request [is] honored, within which period the Governor of the sending State may disapprove the request for temporary custody or availability, either upon his own motion or upon motion of the prisoner." 18 U.S.C.A. App. 2, § 2, Art. IV(a); see also Cuyler v. Adams, 449 U.S. at 444, 101 S.Ct. at 710. Article IV(d), meanwhile, reads in pertinent part: "Nothing contained in this article shall be construed to deprive any prisoner of any right which he may have to contest the legality of his delivery as provided in paragraph (a) hereof. . . ." 18 U.S.C.A. App. 2, § 2, Art. IV(d).
The IAD reference to "state" includes the United States. 18 U.S.C. App. 2, § 2, Art. II(a).) Where the sending state is the United States, as it is here, the term "Governor" means the Attorney General. 18 U.S.C. App. 2, § 3; see, e.g., Lopez v. Levi, 422 F. Supp. 846, 850 (S.D.N.Y. 1976).
Article IV(a) of the Interstate Agreement on Detainers states in full:
The appropriate officer of the jurisdiction in which an untried indictment, information, or complaint is pending shall be entitled to have a prisoner against whom he has lodged a detainer and who is serving a term of imprisonment in any party State made available in accordance with article V(a) hereof upon presentation of a written request for temporary custody or availability to the appropriate authorities of the State in which the prisoner is incarcerated: Provided, That the court having jurisdiction of such indictment, information, or complaint shall have duly approved, recorded, and transmitted the request: And provided further, That there shall be a period of thirty days after receipt by the appropriate authorities before the request be honored within which period the Governor of the sending State may disapprove the request for temporary custody or availability, either upon his own motion or upon motion of the prisoner.
The Supreme Court in Cuyler v. Adams stated that although there is "nothing in the Detainer Agreement [i.e., IAD] explicitly provid[ing] for a pretransfer hearing," the prisoner's argument that "prisoners who are involuntarily transferred under Art. IV are entitled to greater procedural protections than those who initiate the transfer procedure under Art. III" had "substantial support in the language of the Detainer Agreement."Cuyler v. Adams, 449 U.S. at 444-45, 101 So. Ct. at 710. A textual analysis of Article III(e) provided the basis for applying the procedures of the Uniform Criminal Extradition Act ["UCEA"] to the IAD:
Article III(e) [of the IAD] provides that "[a]ny request for final disposition made by a prisoner [under this Article] shall also be deemed to be a waiver of extradition with respect to any charge or proceeding contemplated thereby. . . ." (Emphasis added.) The reference to "waiver of extradition" can reasonably be interpreted to mean "waiver of those rights the sending state affords persons being extradited." Since Pennsylvania has adopted the Uniform Criminal Extradition Act, those rights would include the rights provided by § 10 of that Act.Cuyler v. Adams, 449 U.S. at 445, 101 S.Ct. at 710. Section 10 of the UCEA, codified in Pennsylvania at 42 Pa. Cons. Stat. § 9131 (Supp. 1980), provided:
"No person arrested upon such warrant shall be delivered over to the agent whom the executive authority demanding him shall have appointed to receive him unless he shall first be taken forthwith before a judge of a court of record in this Commonwealth who shall inform him of the demand made for his surrender and of the crime with which he is charged and that he has the right to demand and procure legal counsel, and, if the prisoner or his counsel shall state that he or they desire to test the legality of his arrest, the judge of such court of record shall fix a reasonable time to be allowed him within which to apply for a writ of habeas corpus."Cuyler v. Adams, 449 U.S. at 443 n. 11, 101 S.Ct. at 709 n. 11 (quoting UCEA § 10, emphasis added).
In New York, the UCEA is codified at C.P.L. § 570.24 in essentially the same language.
After analyzing the legislative history of both the IAD and the UCEA, the Supreme Court interpreted Article IV(d) as a "suggestion . . . that a prisoner transferred against his will under Art. IV should be entitled to whatever `safeguards of the extradition process' he might otherwise have enjoyed. Those safeguards include the procedural protections of the Extradition Act (in those States that have adopted it)." Cuyler v.Adams, 449 U.S. at 448, 101 S.Ct. at 711 (emphasis added). The Supreme Court "conclude[d] as a matter of federal law that prisoners transferred pursuant to the provisions of the Agreement [i.e., IAD] are not required to forfeit any pre-existing rights they may have under state or federal law to challenge their transfer to the receiving State." Cuyler v. Adams, 449 U.S. at 450, 101 S.Ct. at 712.
B. Application to Lynch's Case
This case is distinguishable from Cuyler in one key aspect: whereas the prisoner in Cuyler contested his transfer from one state to another, Lynch contests his transfer from federal to state custody. The IAD applies to the federal government as well as to the states, and for the purposes of the IAD, the United States is considered a "State." The United States, however, is not a signatory to the UCEA. App. I Unif. Crim. Extradition Act § 1 (listing "jurisdictions wherein [UCEA] has been adopted"); see, e.g., Mann v. Warden of Eglin Air Force Base, 771 F.2d 1453, 1454 (11th Cir. 1985) ("[T]he United States has not adopted" the Uniform Criminal Extradition Act),cert. denied, 475 U.S. 1017, 106 S.Ct. 1200 (1986); Wilson v. Fenton, 684 F.2d 249, 252 (3d Cir. 1982) ("[T]he United States is not a party to the Uniform Criminal Extradition Act, so that whatever protections are afforded under the Act could not be applied to Wilson, a federal prisoner."). On this basis alone, the holding in Cuyler does not extend to Lynch. See Cuyler v. Adams, 449 U.S. at 448, 101 S.Ct. at 711-12 ("a prisoner transferred against his will under Art. IV should be entitled to whatever `safeguards of the extradition process' he might otherwise have enjoyed. Those safeguards include the procedural protections of the [Uniform Criminal] Extradition Act (in those States that have adopted it).")
Article II(a) of the IAD reads:
"`State' shall mean a State of the United States; the United States of America; a territory or possession of the United States; the District of Columbia; the Commonwealth of Puerto Rico."
Twenty-two years ago, Judge Gagliardi of this Court ruled on this same issue based on facts nearly indistinguishable from those presented by Lynch's case:
This is a petition for a writ of habeas corpus pursuant to 28 U.S.C. [§] 2241. Petitioner William Sorenson seeks an order enjoining federal officials from transferring him from federal to state custody on the ground that such transfer would violate his rights under the Interstate Agreement on Detainers, 18 U.S.C. App. (the "Detainer Agreement"). . . .
Petitioner's principal contention is that under the decision of the Supreme Court in Cuyler v. Adams, 449 U.S. 433, 101 S.Ct. 703, 66 L.Ed.2d 641 (1981), he is entitled to a judicial hearing before being transferred to the temporary custody of the state pursuant to the Detainer Agreement. This contention is without merit. In Cuyler, the Court held that "prisoners transferred pursuant to the provisions of the (Detainer) Agreement are not required to forfeit any pre-existing rights they may have under state or federal law to challenge their transfer to the receiving State." 449 U.S. at 450, 101 S.Ct. at 712. The prisoner in Cuyler was incarcerated in a jurisdiction that had adopted the Uniform Criminal Extradition Act (the "Extradition Act"). Because the prisoner was entitled to a pre-transfer judicial hearing under the Extradition Act, the Court concluded that his transfer without a hearing to another jurisdiction pursuant to Article IV of the Detainer Agreement was unlawful. Id. The Extradition Act, however, has not been adopted by the United States and therefore does not confer any rights on petitioner. Nevertheless, petitioner, who is represented by counsel, cites no other constitutional or statutory provisions that might entitle a federal prisoner to a judicial hearing prior to being transferred to state custody. In the absence of any such provision, Cuyler clearly does not require a judicial hearing prior to a transfer pursuant to the Detainer Agreement.Sorenson v. United States, 539 F. Supp. 865, 866 (S.D.N.Y. 1982) (emphasis added); accord, e.g., Mann v. Warden of Eglin Air Force Base, 771 F.2d at 1454; Wilson v. Fenton, 684 F.2d at 251-52; Atkinson v. Hanberry, 589 F.2d 917, 918-20 (5th Cir. 1979) (Pre-Cuyler federal prisoner has no constitutional or statutory right to a hearing prior to transfer from federal to state custody pursuant to the IAD).
The Court agrees with Sorenson v. United States. Lynch, like Sorenson, has cited to no statutory or constitutional provision that might entitle a federal prisoner to a judicial hearing prior to being transferred to state custody. Cuyler v.Adams does not require a judicial hearing prior to a transfer from a federal prison pursuant to the IAD, since the United States has not adopted the Uniform Criminal Extradition Act. There has been no statutory, much less constitutional, violation here. Thus, no Bivens claim exists.
CONCLUSION
For the reasons discussed above, defendants' motion to dismiss is GRANTED. The Clerk of Court shall enter judgment dismissing this action with prejudice.
SO ORDERED.