Summary
In Pizza, the court recommended summary dismissal of the government's motion to dismiss, observing that it raised "fundamental procedural issues concerning the processing of habeas petitions in this district."
Summary of this case from Mitchell v. GoordOpinion
9:01-CV-757 (DNH/GLS)
October 11, 2001
FOR THE PETITIONER: ALFONSO PIZZA, Petitioner, Pro Se, U.S. Penitentiary, Ray Brook, NY.
FOR THE RESPONDENT: HON. JOSEPH A. PAVONE, U.S. Attorney, OF COUNSEL: CHARLES E. ROBERTS, Asst. U.S. Attorney, Syracuse, New York.
REPORT AND RECOMMENDATION
I. Background
Pending is a motion by respondent (hereinafter, "government") to dismiss the habeas corpus petition filed by Alfonso Pizza ("Pizza") pursuant to 28 U.S.C. § 2241. See Dkt. Nos. 8-10. Pizza's petition complains about disciplinary action that resulted in loss of good time credits. See Order, Dkt. No. 3 (summarizing petition). Pizza filed his petition on May 21, 2001, and, after summary review, this court issued an order directing the government to file an answer or other pleading within sixty days. Id. at 2.
This matter has been referred for Report-Recommendation by the Honorable David N. Hurd pursuant to 28 U.S.C. § 636(b) and N.D.N.Y.L.R. 72.4.
On August 8, 2001, the government filed a Notice of Motion (Dkt. No. 8), Memorandum of Law (Dkt. No. 9) and a "Declaration" of Joyce Horikawa, a Senior Attorney employed by the Northeastern Regional Office of the Federal Bureau of Prisons (Dkt. No. 10). Ms. Horikawa's Declaration certified the truth and accuracy of seven (7) attached records which form part of the administrative record associated with Pizza's petition. All of these documents, including the attachments to Ms. Horikawa's Declaration, have been filed in support of the government's motion to dismiss on non-jurisdictional grounds.
For the reasons that follow, the court recommends that the government's motion be summarily denied with leave to re-file an answer pursuant to Rule 5 of the Rules Governing Section 2254 Cases in the United States District Courts.
II. Discussion
The government's decision to respond to this petition by filing a motion to dismiss raises fundamental procedural issues concerning the processing of habeas petitions in this district. Other than characterizing the submission as a "motion to dismiss," the notice of motion, declaration and memorandum of law are devoid of any citation to, or discussion of, the appropriate procedural rule or legal authority upon which the government relies. Presumably, it is a motion filed pursuant to Fed.R.Civ.P. 12(b).
The government's memorandum essentially argues that Pizza's petition is substantively without merit because he received all of the process he was due. Thus, there was neither a violation of his constitutional rights nor those guaranteed by federal law. See 28 U.S.C. § 2241. The government raises no argument regarding subject matter or personal jurisdiction, improper venue, insufficient process or service of process or the failure to join parties. Cf. Fed.R.Civ.P. 12(b)(1-5, 7). Thus, the court must guess that the government believes that Pizza has failed to state a claim upon which relief can be granted. See Id. at 12(b)(6).
The court does not address the merits of the government's argument.
Naturally, there are rules that apply to a 12(b)(6) motion. First and foremost, the court is limited to an evaluation of the pleadings alone, not matters outside the pleadings such as Ms. Horikawa's declaration and accompanying attachments — the sole source of the government's argument. Fed.R.Civ.P. 12(b). If the court confines its analysis to the pleadings, it must liberally construe Pizza's claims in the light most favorable to him and find beyond doubt that he cannot in any way establish a set of facts to sustain those claims. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); Bass v. Jackson, 790 F.2d 260, 262 (2d Cir. 1986); Dalhberg v. Becker, 748 F.2d 85, 88 (2d Cir. 1984). Since Pizza has filed pro se, the court would be compelled to hold his petition to less stringent standards than those drafted by lawyers, and would have to afford him every opportunity to demonstrate that he has a valid claim. Bobal v. Rensselaer Polytechnic Institute, 916 F.2d 759, 762 (2d Cir. 1990) (internal citations omitted).
Naturally, the court could consider the Horikawa declaration and attachments, thereby converting the motion to one for summary judgment. Fed.R.Civ.P. 12(b). However, the court would have to first apprize the parties that it intended to do so, and provide them an opportunity to supplement the record. Id.
When a respondent contests allegations in a habeas petition on the merits, there is a fairly straight forward procedure in this district for placing the issues before the court. Given that procedure, the court cannot discern why it should convert this motion to one for summary judgment and deviate from standard practice. L.R.N.D.N.Y. 72.4(a) provides that § 2241 petitions shall be filed pursuant to the Rules Governing 28 U.S.C. § 2254 and 2255 proceedings. As they pertain to this case, the rules parallel one another. Thus, Rules 4 require preliminary judicial consideration of the petition and, unless summary dismissal ensues, the respondent is ordered to answer pursuant to Rules 5. In turn, Rules 5 require that respondent incorporate in the answer those portions of the record that are pertinent to the issues raised; e.g., the attachments to the Horikawa declaration.
The court recognizes that the §§ 2254 and 2255 rules, by their express terms, apply to petitions filed under those statutes, and it is far less clear that they govern § 2241 petitions. See Rule 1(a), Rules Governing Section 2254 Cases in the District Courts, foll. 28 U.S.C. § 2254 and Rule 1, Rules Governing Section 2255 Proceedings for the United States District Courts, foll. 28 U.S.C. § 2255. Rule 1(b) of § 2254, however, affords the district court the discretion to apply the rules in cases not covered by 1(a), and this district has done so in its Local Rules.
§ 2254's Rule 11 and § 2255's Rule 12 do allow the district court discretion to utilize the Federal Rules of Civil Procedure when appropriate. On occasion, this district has elected to do so. For instance, if the petition is a second or successive application and there is no required certification by the court of appeals, there may well be a jurisdictional challenge to the district court's authority ab initio. See 28 U.S.C. § 2244(3); see also, Fed.R.Civ.P. 12(b)(1). Thus, the court does not conclude that a motion to dismiss is never appropriate. Rather, it concludes that respondents must apply professional judgment and the Local Rules when responding to habeas petitions.
III. Conclusion
For the reasons stated, it is
RECOMMENDED, that the motion of the United States to dismiss Pizza's petition for a writ of habeas corpus (Dkt. Nos. 8-10) be SUMMARILY DENIED WITH LEAVE TO RE-FILE AN ANSWER PURSUANT TO RULE 5 OF THE RULES GOVERNING SECTION 2254 CASES IN THE DISTRICT COURTS WITHIN THIRTY (30) DAYS OF THE DISTRICT COURT'S DECISION REGARDING THIS REPORT AND RECOMMENDATION, and it is
ORDERED that the Clerk of the Court serve a copy of this Report-Recommendation upon the parties by regular mail.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court within TEN days. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).