Opinion
Civil Action 21 Civ. 10678 (GHW) (SLC)
06-30-2023
MADELYN TAMAREZ, Plaintiff, v. KATHLEEN HOCHUL, GOVERNOR, et al., Defendants.
REPORT AND RECOMMENDATION
SARAH L. CAVE, UNITED STATES MAGISTRATE JUDGE.
TO THE HONORABLE GREGORY H. WOODS, United States District Judge:
I. INTRODUCTION
Plaintiff Madelyn Tamarez (“Ms. Tamarez”), a pretrial detainee, filed this pro se action under 42 U.S.C. § 1983, alleging that her anticipated transfer from the Rose M. Singer Center (“RMSC”) on Rikers Island (“Rikers”) to the Bedford Hills Correctional Facility (“Bedford”), while her criminal proceedings were pending, violated her constitutional rights. (ECF No. 1 (the “Complaint”)). The Complaint named as defendants Kathleen Hochul, Governor of the State of New York, and several other New York State defendants (together, the “State Defendants”), as well as Bill de Blasio, then-Mayor of the City of New York, and several New York City officials (together, the “City Defendants”, and with the State Defendants, “Defendants”)). (Id. at 1-8). Ms. Tamarez seeks monetary damages as well as declaratory and injunctive relief. (Id. at 12).
Although the Complaint named more than 30 defendants, the only remaining State Defendants are Governor Kathy Hochul and the New York State Department of Corrections and Community Supervision (“DOCCS”), and the only remaining City Defendants are New York City Department of Correction Commissioner Louis Molina and New York City. (ECF No. 9 at 3).
The City Defendants and the State Defendants have each moved pursuant to Federal
Rules of Civil Procedure 12(b)(1) and 12(b)(6) to dismiss the Complaint. (ECF Nos. 50 (the “City Motion”); 54 (the “State Motion”, with the City Motion, the “Motions”)). Although Ms. Tamarez received notice of both Motions (ECF Nos. 50; 53; 54; 56; 58; 60), and requested and received an extension of time to respond (ECF Nos. 59; 60; 62), she has not filed an opposition to either Motion. Accordingly, the Court deems the Motions unopposed (ECF No. 64), and pursuant to the referral by the Honorable Gregory H. Woods (ECF No. 7), respectfully recommends that the Motions be GRANTED and the Complaint be DISMISSED WITH PREJUDICE and without leave to amend.
II.BACKGROUND
A. Factual Background
The following facts are taken from the Complaint, as well as the documents Ms. Tamarez attaches and incorporates by reference, see Kleinman v. Elan Corp., PLC, 706 F.3d 145, 152 (2d Cir. 2013), and public records of which the Court may take judicial notice pursuant to Federal Rule of Evidence 201(b)(2). See Kramer v. Time Warner, Inc., 937 F.2d 767, 774 (2d Cir. 1991).For purposes of the Motions, the Court accepts Ms. Tamarez's allegations as true and construes them in the light most favorable to her. See Harris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009); Corbett v. City of New York, No. 15 Civ. 9214 (GHW), 2016 WL 7429447, at *2-3 (S.D.N.Y. Dec. 22, 2016).
Internal citations and quotation marks are omitted from case citations unless otherwise noted.
In support of the Motions, Defendants have submitted attorney declarations describing Ms. Tamarez's detention history. (ECF Nos. 51; 57). Only to the extent that the statements in these declarations are based on publicly available corrections records, which the Court has independently corroborated, does the Court take judicial notice of the dates and locations of Ms. Tamarez's detention. See Johnson v. City of New York, No. 15 Civ. 8195 (GHW), 2017 WL 2312924, at *2 n.3 (S.D.N.Y. May 26, 2017) (taking judicial notice of New York City Department of Correction inmate lookup information); Rosario v. New York City, No. 12 Civ. 4795 (PAE), 2013 WL 2099254, at *1 n.1 (S.D.N.Y. May 15, 2013) (taking judicial notice of information in DOCCS Inmate Lookup System); accord Farmer v. Cnty. of Westchester, No. 18 Civ. 2691 (NSR), 2022 WL 3902729, at *1 n.1 (S.D.N.Y. Aug. 30, 2022). The Court otherwise disregards statements in the declarations that are outside the four corners of the Complaint.
Ms. Tamarez is a female pretrial detainee at RMSC on Rikers. (ECF No. 1 at 2). On October 13, 2021, Governor Hochul and Mayor de Blasio announced that female and transgender detainees at Rikers would be moved “temporarily” to Bedford, in Westchester County, New York, commencing October 21, 2021. (Id. at 11, 13). Before the transfers began, the New York City Board of Correction provided RMSC detainees with a notice containing telephone numbers, an email address, and a website link where complaints about living conditions could be made. (Id. at 13 (the “Notice”)). According to news reports attached to the Complaint, dozens of female and transgender detainees at RMSC signed a petition opposing the transfers, arguing, inter alia, that by sending them to a state-run facility where convicted offenders are detained, they would be deprived of the right to due process. (Id. at 24, 26).
Bedford “house[s] exclusively female inmates.” Stone #1 v. Annucci, No. 10 Civ. 1326 (RA), 2021 WL 4463033, at *1 (S.D.N.Y. Sept. 28, 2021); see Bedford Hills Correctional Facility, DOCCS, https://doccs.ny.gov/location/bedford-hills-correctional-facility (last visited June 30, 2023).
On October 21, 2021, Ms. Tamarez alleges that “women were forcibly extracted and strapped to gurneys to be transported north.” (ECF No. 1 at 11). On November 29, 2021, Ms. Tamarez was transferred to Bedford. (ECF Nos. 51 ¶ 3; 57-1). On February 4, 2022, Ms. Tamarez was transferred back to Rikers. (ECF No. 12).Thus, at the time she signed the Complaint on November 19, 2021, Ms. Tamarez was still located at Rikers and had not yet been transferred. (ECF No. 1 at 9).
Ms. Tamarez informed the Court that she returned to Rikers on February 3, 2022, but according to the DOCCS Inmate Lookup System, she was discharged from Bedford on February 4, 2022. (ECF Nos. 57 ¶ 2; 57-1). The one-day discrepancy is not material to Ms. Tamarez's allegations or the Court's analysis of the Motions.
Because she was at Rikers when she signed the Complaint, Ms. Tamarez's allegations focus on the deprivations she anticipated would occur on her transfer to Bedford. Ms. Tamarez alleges that the “forced relocation violates [her] constitutional rights, specifically the First, Fourth, Sixth and Fourteenth Amendments.” (ECF No. 1 at 11). First, Ms. Tamarez alleges that the transfer would violate her rights to a speedy trial and access to the courts and counsel. (Id.) Second, Ms. Tamarez alleges that the transfer would result in her being “deprived of all of [her] property, including tens of thousands of pages of discovery[,]” which she would not be able to access at Bedford. (Id.) Third, Ms. Tamarez alleges that the transfer would “severely restrict[] [her] ability to communicate with the outside world[,]” because she would be “unable to call anyone other than ten pre-approved numbers[.]” (Id.) Fourth, Ms. Tamarez alleges that the transfer would “curtail[] [her] ability to express [her] disagreement with policies governing [her] wellbeing.” (Id. at 12). Fifth, Ms. Tamarez alleges that the transfer would “summarily eliminated the additional interests in liberty and privacy owed to pretrial detainees[,]” by subjecting her “to the arbitrary unrestricted bodily contact of state correction officers as well as their permissive policies regarding segregation and infractions” and putting her at risk of “physical[] attack[].” (Id.) Finally, Ms. Tamarez alleges that the transfers were implemented “at the expense of women” and to benefit male detainees. (Id. at 11-12).
Ms. Tamarez maintains that her transfer to Bedford has “no legitimate basis . . . i.e. it is not for [her] security, [her] risk to others' security, nor any medical need of [hers]” and “result[ed] in significant violations of [her] rights and [] exposes [her] to increased danger, [] is excessive and unwarranted, [and] contrary to [her] right to due process.” (ECF No. 1 at 12). After learning that she would be transferred to Bedford, Ms. Tamarez “suffer[ed] disabling anxiety and panic attacks, insomnia, pacing, muscle spasms (eye twitching, teeth grinding, back spasms), palpitations, dizziness, loss of appetite, nausea and vomiting.” (Id.) Ms. Tamarez seeks declaratory and injunctive relief as well as compensatory and punitive damages. (Id.)
B. Procedural Background
On November 19, 2021, Ms. Tamarez signed the Complaint, which also named as a Plaintiff Pamela Buchbinder, whose claims were later severed, leaving Ms. Tamarez as the sole Plaintiff in this action. (ECF No. 3; see ECF No. 1 at 1, 10). After Ms. Tamarez was granted leave to proceed in forma pauperis, Judge Woods issued an order of service, which, inter alia, requested that the City Defendants waive service and authorized service on the State Defendants though the U.S. Marshals Service. (ECF No. 9). After Defendants submitted letters indicating their intent to move to dismiss the Complaint (ECF Nos. 22; 33), the Court held a conference, in which Ms. Tamarez participated, to discuss possible amendment of the Complaint. (ECF No. 31; ECF min. entry Aug. 18, 2022). Following the conference, the Court directed Defendants to reserve their letters discussing the perceived deficiencies in the Complaint, and directed Ms. Tamarez, after she reviewed the letters, to notify the Court whether she intended to proceed on the Complaint or file an amended complaint. (ECF No. 35). Although Ms. Tamarez initially stated that she intended to amend the Complaint, for which the Court set a deadline of November 23, 2022, Ms. Tamarez subsequently informed the Court of her intent to proceed on the Complaint. (ECF Nos. 44; 45; 46). The Court then set a briefing schedule for Defendants' Motions. (ECF No. 47).
As noted above (see p. 1 n.1), in the Order of Service, Judge Woods dismissed Ms. Tamarez's claims against 25 individuals named in the Complaint, finding that Ms. Tamarez failed to “alleg[e] any facts showing how they were personally involved in the events underlying her claims.” (ECF No. 9 at 3). Judge Woods granted Ms. Tamarez “leave to file an amended complaint . . . stat[ing] facts showing their personal involvement in violating her rights.” (Id. at 3, 6) Ms. Tamarez did not do so.
On December 28, 2022, Defendants filed the Motions, which they served on Ms. Tamarez. (ECF Nos. 50; 53; 54; 58). Ms. Tamarez requested an extension of time to file her opposition to the Motions, which the Court granted. (ECF Nos. 59; 60). After Ms. Tamarez failed to file her opposition by the extended deadline, the Court sua sponte granted Ms. Tamarez “one final opportunity” to respond to the Motions. (ECF No. 62). When, by April 3, 2023, more than two weeks after the final deadline, Ms. Tamarez had not responded to the Motions, the Court deemed the Motions unopposed and fully briefed. (ECF No. 64). To date, Ms. Tamarez has not opposed the Motions or otherwise communicated with the Court.
III. DISCUSSION
A. Legal Standards for Motions to Dismiss
“‘Determining the existence of subject matter jurisdiction is a threshold inquiry.'” O'Diah v. TBTA-Triboroug[h] Bridge & Tunnel Auth., No. 19 Civ. 7586, 2020 WL 5849395, at *1 (S.D.N.Y. Oct. 1, 2020) (quoting Morrison v. Nat'l Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008), aff'd, 561 U.S. 247 (2010)). “‘A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.'” Anders v. Verizon Commc'ns. Inc., No. 16 Civ. 5654 (VSB), 2018 WL 2727883, at *4 (S.D.N.Y. June 5, 2008) (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)).
When subject matter jurisdiction is challenged, the plaintiff “is required to show that subject matter jurisdiction exists by a preponderance of the evidence.” Anders, 2018 WL 2727883, at *4. When analyzing a challenge to subject matter jurisdiction, “‘the district court must take all uncontroverted facts in the complaint . . . as true, and draw reasonable inferences in favor of the party asserting jurisdiction.'” Id. (quoting Tandon v. Captain's Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014)). Subject matter “‘jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it.'” Id. (quoting Morrison, 547 F.3d at 170)). “[I]n resolving a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), a district court ‘has the power and obligation to decide issues of fact by reference to evidence outside the pleadings, such as affidavits.'” Id. (quoting Tandon, 752 F.3d at 243). The Court “must accept Plaintiffs' ‘material factual allegations as true,'” but “‘argumentative inferences favorable to the party asserting jurisdiction should not be drawn.'” Asylum Seeker Advoc. Project v. Barr, 409 F.Supp.3d 221, 223-24 (S.D.N.Y. 2019) (quoting Atl. Mut. Ins. Co. v. Balfour Maclaine Int'l Ltd., 968 F.2d 196, 198 (2d Cir. 1992)).
A plaintiff's failure to oppose a Rule 12(b)(1) motion to dismiss for lack of federal subject matter jurisdiction is deemed a “tacit admission” that jurisdiction is lacking that warrants granting the motion. See Broad v. DKP Corp., No. 97 Civ. 2029 (LAP), 1998 WL 516113, at *3 (S.D.N.Y. Aug. 19, 1998), aff'd, 182 F.3d 898 (2d Cir. 1999). The purpose of this rule is to avoid placing the “unacceptable burden” on a court “to construct plaintiff's legal arguments for [her] in order to reach the merits of defendant's motion.” Id.; see Koehler v. Bank of Bermuda (New York) Ltd., No. 96 Civ. 7885 (JFK), 1998 WL 67652, at *8 (S.D.N.Y. Feb. 19, 1998) (deeming plaintiff's failure to oppose motion as implicit concession to relief sought).
In analyzing a motion to dismiss for failure to state a claim under Rule 12(b)(6), the Court must assess whether the complaint “contain[s] sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.
To survive a motion to dismiss, “the plaintiff must provide the grounds upon which his claim rests through factual allegations sufficient ‘to raise a right to relief above the speculative level.'” ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (quoting Twombly, 550 U.S. at 555). In evaluating a motion to dismiss, the Court “accept[s] all facts alleged in the complaint as true and draw[s] all reasonable inferences in the plaintiff's favor.” Sanderson v. Leg Apparel LLC, No. 19 Civ. 8423 (GHW), 2020 WL 7342742, at *3 (S.D.N.Y. Dec. 14, 2020) (citing Burch v. Pioneer Credit Recovery, Inc., 551 F.3d 122, 124 (2d Cir. 2008) (per curiam)). The Court is “‘not required to credit conclusory allegations or legal conclusions couched as factual allegations.'” Id. (quoting Rothstein v. UBS AG, 708 F.3d 82, 94 (2d Cir. 2013)). “[A] complaint that offers ‘labels and conclusions' or ‘naked assertion[s]' without ‘further factual enhancement' will not survive a motion to dismiss.” Id. (quoting Iqbal, 556 U.S. at 678). “‘Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.'” Id. (quoting DeJesus v. HF Mgmt. Servs., LLC, 726 F.3d 85, 87-88 (2d. Cir. 2013)). For purposes of Rule 12(b)(6), “the complaint is deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002).
3. Pro Se Considerations
In deciding a motion to dismiss, “the submissions of a pro se litigant must be construed liberally and interpreted ‘to raise the strongest arguments that they suggest.'” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (quoting Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006)). A plaintiff's pro se status “does not relieve [her] of the duty of complying with federal and local rules[,]” Cobalt Multifamily Invs. I, LLC v. Arden, 857 F.Supp.2d 349, 356 (S.D.N.Y. 2011), including the liberal pleading standard in Federal Rule of Civil Procedure 8. Davis v. Cnty. of Suffolk, No. 18 Civ. 3030 (JFB) (ARL), 2018 WL 11169389, at *3 (E.D.N.Y. Apr. 6, 2018) (explaining that “even a pro se complaint must plead sufficient facts to ‘state a claim to relief that is plausible on its face'”) (quoting Twombly, 550 U.S. at 570); see Triestman, 470 F.3d at 477 (explaining that pro se litigants are “not exempt . . . from compliance with relevant rules of procedural and substantive law”). Thus, “a pro se plaintiff must still plead enough facts to state a claim to relief that is plausible on its face.” Gottesfeld v. Anderson, No. 18 Civ. 10836 (PGG), 2020 WL 1082590, at *5 (S.D.N.Y. Mar. 6, 2020) (citing Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011)).
Despite the obligation “to draw the most favorable inferences” from a complaint, the Court “cannot invent factual allegations that [a pro se plaintiff] has not pled.” Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010). “The Court need not accept allegations that are contradicted by other matters asserted or relied upon or incorporated by reference by a plaintiff in drafting the complaint.” Tsinberg v. City of New York, No. 20 Civ. 749 (PAE), 2021 WL 1146942, at *4 (S.D.N.Y. Mar. 25, 2021).
B. Application
In the Motions, Defendants argue that the Complaint is deficient in four respects: (1) Ms. Tamarez lacks standing; (2) her claims for prospective injunctive relief are moot; (3) she fails state a due process claim; and (4) she fails to state an equal protection claim. (ECF Nos. 52; 55). The State Defendants also argue that neither Governor Hochul nor DOCCS are proper parties, and, in any event, have qualified immunity. (ECF No. 55 at 14). The Court analyzes the threshold questions of standing and mootness before turning to Defendants' other arguments.
1. Standing
a. Legal Standard
Article III of the United States Constitution “restricts federal courts to the resolution of cases and controversies[,]” which “requires that the party invoking federal jurisdiction have standing-the personal interest that must exist at the commencement of the litigation.” Carter v. HealthPort Techs., LLC, 822 F.3d 47, 56 (2d Cir. 2016). Standing “is the threshold question in every federal case, determining the power of the court to entertain the suit.” Warth v. Seldin, 422 U.S. 490, 498 (1975). To have standing, a plaintiff “‘must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.'” Dhinsa v. Krueger, 917 F.3d 70, 77 (2d Cir. 2019) (quoting Spokeo, Inc. v. Robins, 578 U.S. 330, 337 (2016)). Where a plaintiff seeks injunctive relief, she must also “show a likelihood that [] she will be injured in the future.” Deshawn E. v. Safir, 156 F.3d 340, 344 (2d Cir. 1998).
“Whether a party has demonstrated an injury in fact is resolved by a two-step analysis.” MGM Resorts Int'l Glob. Gaming Dev., LLC v. Malloy, 861 F.3d 40, 45 (2d Cir. 2017). A court must assess “(1) whether the asserted injury is ‘concrete,' and (2) whether it is ‘actual or imminent.'” City of Jacksonville, 508 U.S. at 663. To satisfy the first prong, the alleged injury must be “particularized” to the plaintiff, not “conjectural or hypothetical.” Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 211 (1995). “The second prong requires that the alleged injury is, if not actual, at least ‘certainly impending' and ‘not too speculative.'” MGM, 861 F.3d at 45 (quoting Lujan, 504 U.S at 565 n.2).
“An injury in fact must be ‘particularized,' and it must be ‘concrete.'” Harty v. West Pt. Realty, Inc., 28 F.4th 435, 442 (2d Cir. 2022) (quoting Spokeo, 578 U.S. at 340). An injury is particularized if it “affect[s] the plaintiff in a personal and individual way.” Spokeo, 578 U.S. at 339. An injury is concrete if it is a “physical, monetary, or cognizable intangible harm traditionally recognized as providing a basis for a lawsuit in American courts.” TransUnion LLC v. Ramirez, U.S. __, 141 S.Ct. 2190, 2206 (2021). “The party seeking to invoke federal jurisdiction bears the burden of establishing each of these elements.” Doe v. Columbia Univ., 551 F.Supp.3d 433, 455 (S.D.N.Y. 2021).
b. Application
Defendants' Motions focus on the first element of standing, arguing that Ms. Tamarez fails to allege an injury in fact. (ECF Nos. 52 at 14; 55 at 25-26). The City Defendants note that Ms. Tamarez signed the Complaint ten days before she was transferred and only “dwells on the possibility of constitutional violations that she anticipates, yet without asserting an actual injury[,]” and “provides nothing beyond hypotheticals and conjectures that any specific injury will occur.” (ECF No. 52 at 14-15). The State Defendants similarly argue that “by submitting a Complaint written prior to her transfer and failing to avail herself of the opportunity the Court gave her to amend the Complaint to show what, if anything, actually happened to her at Bedford [], she identifies no compensable injury to support a claim for damages.” (ECF No. 55 at 26).
In the first instance, Ms. Tamarez has not only failed to oppose the Motions, despite two extensions, she also declined the opportunity the Court afforded her to amend her Complaint to supply a basis on which to find that she has standing. (ECF Nos. 35; 60; 62). This failure is an implicit concession that she lacks standing that justifies granting the Motions and dismissing the Complaint for lack of federal subject matter jurisdiction. See Broad, 1998 WL 516113, at *3 (deeming plaintiff's “silence as a tacit admission” that federal subject matter jurisdiction was “lacking” and granting Rule 12(b)(1) motion to dismiss).
In any event, the Court has analyzed the Complaint and finds that Ms. Tamarez has failed to demonstrate standing to assert the claims in the Complaint. On the date she signed the Complaint, more than three weeks after transfers began, she continued to be detained at Rikers and had not been transferred to Bedford. (ECF No. 1 at 9). While the record reflects that she was later transferred to Bedford, she declined the opportunity to amend her Complaint to assert any allegations about the conditions she actually endured at Bedford or about any actual effect the transfer had on her criminal proceeding. (ECF Nos. 13; 35; 46). Ms. Tamarez has therefore failed to allege “a concrete, actual, or imminent harm” resulting from the transfer to Bedford sufficient to show an injury in fact for standing purposes. Lee v. Doe, No. 20 Civ. 6176 (CS), 2022 WL 204355, at *4 (S.D.N.Y. Jan. 24, 2022) (granting motion to dismiss claims of plaintiff who challenged his placement with quarantining inmates but did “not allege that any of them even had COVID-19, let alone that he contracted it from his proximity to them”). Because the Complaint fails to demonstrate that Ms. Tamarez sustained an injury in fact, she lacks standing to assert the claims in the Complaint, and the Court lacks subject matter jurisdiction. See Stallworth v. New York, No. 16 Civ. 3059 (PAE) (BCM), 2017 WL 4355897, at *10-12 (S.D.N.Y. July 27, 2017) (recommending granting motion to dismiss for lack of standing where allegations only showed that defendants “would have violated plaintiff's constitutional rights” and were based on “conjecture” that was too “speculative” to demonstrate injury in fact), adopted by, 2017 WL 4342148 (S.D.N.Y. Sept. 28, 2017).
2. Mootness
a. Legal Standard
Article III also deprives a federal court of subject matter jurisdiction over an action once it becomes moot. See Doyle v. Midland Credit Mgmt., Inc., 722 F.3d 78, 80 (2d Cir. 2013) (per curiam). “Mootness is a doctrinal restriction stemming from the Article III requirement that federal courts decide only live cases or controversies.” In re Zarnel, 619 F.3d 156, 162 (2d Cir. 2010). “A case becomes moot when interim relief or events have eradicated the effects of the defendant's act or omission, and there is no reasonable expectation that the alleged violation will recur.” Van Wie v. Pataki, 267 F.3d 109, 113 (2d Cir. 2001). Where it is “impossible for the court, through the exercise of their remedial powers, to do anything to redress the injury[,]” the claim is moot. Fox v. Bd. of Trs. of State Univ. of N.Y., 42 F.3d 135, 140 (2d Cir. 1994); accord Cook v. Colgate Univ., 992 F.2d 17, 19 (2d Cir. 1993). The doctrine of “capable of repetition, yet evading review,” Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515 (1911), “is applicable only when there is ‘a reasonable expectation that the same complaining party would be subjected to the same action again.' ” Lane, 455 U.S. at 634 (quoting Weinstein v. Bradford, 423 U.S. 147, 149 (1975)).
b. Application
Defendants argue that, because Ms. Tamarez has been transferred back to Rikers and has not alleged the possibility of return to Bedford, her claims for declaratory and injunctive relief are moot. (ECF Nos. 52 at 15-17; 55 at 15-16). The Court agrees. “Generally, it is true that a prisoner's transfer from a prison facility moots that prisoner's claim for injunctive relief against the transferring facility.” Pugh v. Goord, 571 F.Supp.2d 477, 488 (S.D.N.Y. 2008) (citing Prins v. Coughlin, 76 F.3d 504, 506 (2d Cir. 1996)); accord McCray v. Lee, 963 F.3d 110, 117 (2d Cir. 2020) (“An inmate's transfer from a prison facility moots his claims for declaratory or injunctive relief against officials of the transferring facility.”). While an exception to this rule exists for challenged actions that are “capable of repetition, yet evading review,” Murphy v. Hun, 455 U.S. 478, 482 (1982), that exception only applies if “(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party would be subjected to the same action again.” Id.
Here, the City stands in the shoes of the transferring facility-Rikers-which is run by the New York City Department of Corrections (“DOC”). See Izeh v. Correction Officers, No. 23 Civ. 233 (LTS), 2023 WL 2186558, at *2 (S.D.N.Y. Feb. 21, 2023) (dismissing claim against DOC “because an agency of the City of New York is not an entity that can be sued”) (quoting N.Y. City Charter ch. 17, § 396)).
Here, even assuming the first factor were met, the record shows that Ms. Tamarez was transferred back to Rikers in February 2022 and has remained there since. (ECF Nos. 13; 34; 38; 39; 44; 46; 59). The Notice also states that the transfers would be “temporar[y]”-which was true for Ms. Tamarez-and there are no allegations that the transfers have continued. (ECF No. 1 at 13). Thus, there is no basis from which to infer that Ms. Tamarez might be transferred back to Bedford in the future, and the capable of repetition yet evading review exception does not apply. Ms. Tamarez's claims for declaratory and injunctive relief are therefore moot.
Although Ms. Tamarez's transfer “does not moot [her] claim for damages,” those claims are deficient for the other reasons set forth below. McCray, 963 F.3d at 117.
3. Section 1983 Claims
“Section 1983 grants a right of action to any ‘citizen of the United States or other person within the jurisdiction thereof' who has been deprived of ‘any rights, privileges, or immunities secured by the Constitution' or federal law by a person acting under color of state law.” Hirsch v. City of New York, 300 F.Supp.3d 501, 508 (S.D.N.Y.) (quoting 42 U.S.C. § 1983), aff'd, 751 Fed.Appx. 111 (2d Cir. 2018); see Pridgen v. Jail, No. 22 Civ. 2294 (ER), 2022 WL 1082411, at *1 (S.D.N.Y. Apr. 6, 2022) (“Section 1983 provides that an action may be maintained against a ‘person' who has deprived another of rights under the ‘Constitution and Laws.'”) (quoting 42 U.S.C. § 1983). To state a Section 1983 claim, “a complaint must allege that the defendant (1) deprived the plaintiff of rights secured by the Constitution and laws of the United States, (2) while acting under color of state law.” Chamberlain v. City of White Plains, 986 F.Supp.2d 363, 381 (S.D.N.Y. 2013) (citing 42 U.S.C. § 1983); see Lurch v. Chaput, No. 16 Civ. 2517 (AT), 2022 WL 889259, at *5 (S.D.N.Y. Mar. 25, 2022) (citing West v. Atkins, 487 U.S. 42, 48 (1988)). “In order to state a claim under [Section] 1983, a plaintiff must allege that he was injured by either a state actor or a private party acting under color of state law.” Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 323 (2d Cir. 2002); see Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 691 (1978). “To act under color of state law or authority for purposes of Section 1983, the defendant must ‘have exercised power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.'” Savarese v. City of New York, 547 F.Supp.3d 305, 337 (S.D.N.Y. 2021) (quoting Monsky v. Moraghan, 127 F.3d 243, 245 (2d Cir. 1997)). The Court must assess whether the alleged constitutional violations “have been committed by a person acting under color of state law[.]” Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010) (quoting Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994)). The burden is on the plaintiff to “indicate that the challenged action was ‘fairly attributable to the State.'” Vasquez v. Garcia, 432 F.Supp.3d 92, 97 (D. Conn. 2019) (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982)).
Liberally construed, the Complaint asserts § 1983 claims under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. (ECF No. 1 at 11-12).
a. Due Process Claims
Ms. Tamarez alleges that her “sudden” transfer from RMSC to Bedford without a “legitimate basis” violates her due process rights. (ECF No. 1 at 11-12). In essence, she contends that her status as a pretrial detainee prevented her transfer to a State-run prison for convicted offenders. (Id. at 12 (alleging that “the move summarily eliminates the additional interests in liberty and privacy owed to pretrial detainees over convicted prisoners”); see id. (alleging that “every pretrial detainee is treated to the severe punishment the legislature designates for convicted prisoners at a maximum-security state prison”)). Ms. Tamarez also feared that the transfer would result in the destruction of her legal papers and deprive her of access to the courts and counsel. (Id. at 11).
Under Second Circuit precedent, courts “review the claims of a pre-trial detainee of a state facility under the Fourteenth Amendment's Due Process clause, rather than under the Eighth Amendment, which affords him protection at least as great, if not more, than that afforded a convicted prisoner.” McFadden v. Solfaro, Nos. 95 Civ. 1148 (LBS) & 95 Civ. 3790 (LBS), 1998 WL 199923, at *4 (S.D.N.Y. Apr. 23, 1998) (citing Bell v. Wolfish, 441 U.S. 678, 685 (1978)). “The Fourteenth Amendment's Due Process Clause protects persons against deprivations of life, liberty, or property without due process of law, and ‘those who seek to invoke its procedural protection must establish that one of these interests is at stake.'” Victory v. Pataki, 814 F.3d 47, 59 (2d Cir. 2016), as amended (Feb. 24, 2016) (quoting Graziano v. Pataki, 689 F.3d 110, 114 (2d Cir. 2012)). Federal courts employ a two-step analysis of due process claims, asking first “whether there exists a liberty or property interest of which a person has been deprived,” and second, “whether the procedures followed by the State were constitutionally sufficient.” Id. (citing Swarthout v. Cooke, 562 U.S. 216, 219 (2011)). A liberty interest “may arise directly from the Due Process Clause itself or from statutes, regulations, or policies enacted by the state.” Id. (citing Wilkinson v. Austin, 545 U.S. 209, 221-22 (2005)).
Applying these standards, the Court first considers Ms. Tamarez's challenge to her transfer, before assessing the anticipated destruction of legal papers and deprivation of access to the courts and counsel.
i. Transfer from RMSC to Bedford
The United States Constitution does not “grant[] a prisoner a liberty interest in the location of his place of confinement.” Fermin-Rodriguez v. Westchester Cnty. Jail Med. Pers., 191 F.Supp.2d 358, 363 (S.D.N.Y. 2002), as amended (Mar. 25, 2002). “The Second Circuit has held that the mere transfer of a pretrial detainee ‘to less amenable and more restrictive quarters for nonpunitive reasons' does not amount to punishment per se.'” McFadden, 1998 WL 199923, at *10 (citing Covino v. Vt. Dep't of Corr., 933 F.2d 128, 129 (2d Cir. 1991)). “Moreover, New York law permits the transfer of inmates from one facility to another, and does not place conditions on the discretionary power of the commissioner of corrections to transfer prisoners.” Corley v. City of New York, No. 14 Civ. 3202 (GHW), 2017 WL 4357662, at *6 (S.D.N.Y. Sept. 28, 2017); accord Fermin-Rodriguez, 191 F.Supp.2d at 363. Specifically, by statute, the commissioner of DOCCS has “the power to transfer inmates from one correctional facility to another” N.Y. Corr. L. § 23(1), and “New York law does not place conditions on interprison transfers.” Matiyn v. Henderson, 841 F.2d 31, 34 (2d Cir. 1988); see also N.Y. Corr. L. § 504(2) (describing circumstances under which state correctional facilities are available to house county inmates); 9 N.Y.C.R.R. § 7210.6 (describing procedures for transfer of inmates “[w]henever a facility administrator determines that it is necessary to transfer an inmate or group of inmates to another suitable place or facility”); 9 N.Y.C.R.R. § 7210.9 (providing that transferred inmate “shall be entitled to all the rights and privileges available to other inmates of the receiving facility”). Thus, Ms. Tamarez “had no liberty interest under either federal or state law to be located at a particular prison facility, and [her] transfer therefore cannot be the basis of a due process claim.” Corley, 2017 WL 4357662, at *6 (granting motion to dismiss due process claim based on prison transfer).
Even if the living conditions at Bedford were worse than at RMSC, Ms. Tamarez has still “failed to state a cognizable constitutional injury.” Fermin-Rodriguez, 191 F.Supp.2d at 363 (explaining that “Plaintiff had no liberty interest in being returned from [one facility to another], regardless of the differences in quality of life”). Nor is there any allegation “that the transfer was in anyway punitive and therefore violative of [her right to] Due Process.” McFadden, 1998 WL 199923, at *10. Simply being housed in a facility with convicted prisoners, absent any allegations that Ms. Tamarez sustained an injury or was transferred as punishment, is insufficient to plausibly allege that her due process rights were violated. See Silvera v. Conn. Dep't of Corr., 726 F.Supp.2d 183, 196-97 (D. Conn. 2010) (collecting cases). Accordingly, Ms. Tamarez has failed to state a due process claim based on the transfer to Bedford.
ii. Legal Papers
Ms. Tamarez's allegations concerning the-possible-deprivation of access to or destruction of her legal papers (ECF No. 1 at 11-12) implicates her constitutional right of access to the courts, which is a right alternatively “grounded . . . in the Article IV Privileges and Immunities Clause, the First Amendment Petition Clause, the Fifth Amendment Due Process Clause, and the Fourteenth Amendment Equal Protection, and Due Process Clauses.” Christopher v. Harbury, 536 U.S. 403, 414-15 & n.12 (2002). The Second Circuit has explained:
[l]egal documents have characteristics that differentiate them from mere “property” whose destruction can be adequately remedied by a generic property-deprivation state law. Their theft or destruction, for example, may irrevocably hinder a prisoner's efforts to vindicate legal rights.... It is now established beyond doubt that prisoners have a constitutional right of access to the courts.Willey v. Kirkpatrick, 801 F.3d 51, 69 (2d Cir. 2015) (citing Bounds v. Smith, 430 U.S. 817, 821-22 (1977). To state a claim for denial of access to the courts based on loss of legal papers, “a plaintiff must allege that the defendant took or was responsible for actions that hindered a plaintiff's efforts to pursue a legal claim.” Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003). Courts in this District require a plaintiff to “demonstrate actual injury and specify which legal matter Defendants' allege tampering hindered [her] from pursuing.” Shepherd v. Fisher, No. 08 Civ. 9297 (RA), 2017 WL 666213, at *39 (S.D.N.Y. Feb. 16, 2017); accord Haywood v. Annucci, No. 18 Civ. 10913 (KMK), 2020 WL 5751530, at *7 n.5 (S.D.N.Y. Sept. 25, 2020). Not only has Ms. Tamarez failed to allege that she was in fact deprived of any of her legal papers, but she has also failed to demonstrate any actual injury, or that she was hindered from pursuing any legal matter. She was able to file the Complaint and other applications, participate in conferences with the Court, and submit letters, and therefore, has not plausibly alleged that she was hindered in litigating this action. (ECF Nos. 2; 4; 13; 18; 34; 38; 39; 44; 46; 59; ECF minute entry Aug. 18, 2022). Nor does she allege any impediment to her underlying criminal case, and, therefore, has failed to state a claim. See Haywood, 2020 WL 5751530, at *7 n.5 (dismissing claim based on destruction of legal papers where plaintiff failed to allege his access to the courts was hindered); Corley, 2017 WL 4357662, at *8 (same); see also Shepherd, 2017 WL 666213, at *39 (granting summary judgment dismissing claim based on alleged confiscation of legal mail, which did not prevent plaintiff “from addressing the requirements of his then-pending case”).
iii. Access to the Courts and Counsel
Ms. Tamarez alleges that the transfer will impede her right to a speedy trial and access to counsel, who will incur additional travel time to Bedford to meet with her, and to the courts, travel to which she anticipates will involve “additional delays and mix-ups with court appearances[.]” (ECF No. 1 at 11). As discussed above, the transfer to Bedford does not violate the Due Process Clause. See also Covino, 933 F.2d at 130 (noting that plaintiff's transfer to facility 56 miles from where he had previously been held did not “implicate[]” Due Process Clause).
To the extent that Ms. Tamarez asserts that a delay in her underlying criminal case implicates the Sixth Amendment right to a speedy trial, the Court must examine four factors: “(1) the length of the delay; (2) the reason for the delay; (3) the timing and frequency of the defendant's assertion of [her] speedy trial right; and (4) any prejudice to the defendant caused by the delay.” Butti v. Goord, No. 03 Civ. 6521 (DLC), 2005 WL 1875458, at *3 (S.D.N.Y. Aug. 8, 2005) (citing Barker v. Wingo, 407 U.S. 514, 530 (1972)). “The first factor, length of the delay, is a threshold consideration.” Id. Ms. Tamarez was only detained at Bedford for approximately six weeks. (ECF Nos. 1; 13). Even assuming that Ms. Tamarez's criminal proceeding was delayed or she was unable to appear in court while she was at Bedford, however, “[t]his length of delay is insufficient to meet the threshold injury of a presumptive prejudice and does not trigger the rest of the analysis for a speedy trial violation.” Robinson v. LaClair, No. 09 Civ. 3501 (KAM), 2011 WL 115490, at *9 (E.D.N.Y. Jan. 13, 2011) (collecting cases); see United States v. Vassell, 970 F.2d 1162, 1164 (2d Cir. 1992) (noting “general consensus” that “a delay of less than five months” is not presumptively prejudicial).
As to Ms. Tamarez's claimed denial of access to counsel, it is true that “a pretrial detainee's Sixth Amendment rights are infringed [] when prison regulations ‘unjustifiably obstruct' the detainee's access to counsel.” Brogdon v. City of New York, No. 16 Civ. 8076 (LAK) (RWL), 2018 WL 4762981, at *14 (S.D.N.Y. Aug. 8, 2018) (quoting Benjamin, 264 F.3d at 187), adopted by, 2018 WL 4757947 (S.D.N.Y. Oct. 1, 2018). Here, Ms. Tamarez fails to allege a single instance on which she was unable to meet or speak with her counsel, let alone that such a denial “unreasonably burdened [her] right to consult with [her] attorney or access the courts, and thus [her] allegation is insufficient to state a claim.” Anduze v. City of New York, No. 21 Civ. 519 (PGG) (KHP), 2022 WL 4586967, at *13 (S.D.N.Y. Aug. 8, 2022), adopted by, 2022 WL 4547420 (S.D.N.Y. Sept. 29, 2022).
The Court therefore finds that Ms. Tamarez has failed to state a plausible due process claim.
b. Equal Protection Claim
Ms. Tamarez alleges that the transfers to Bedford were done to benefit male detainees at the expense of female and transgender detainees. (ECF No. 1 at 11-12). Defendants argue that Ms. Tamarez has failed to state a plausible claim for relief under the Equal Protection Clause. (ECF Nos. 52 at 20-21; 55 at 20-25).
i. Legal Standard
“The equal protection clause directs state actors to treat similarly situated people alike.” Giano v. Senkowski, 54 F.3d 1050, 1057 (2d Cir. 1995) (citing Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)). To plead an equal protection claim, a plaintiff must allege purposeful discrimination, see McCleskey v. Kemp, 481 U.S. 279, 292 (1987), directed at an identifiable or suspect class. See Kadrmas v. Dickinson Pub. Schs., 487 U.S. 450, 457-58 (1988); see also Phillips v. Girdlich, 408 F.3d 124, 129 (2d Cir. 2005). In the prison setting, a plaintiff must also allege that “the disparity in treatment cannot survive the appropriate level of scrutiny,” i.e., that the “treatment was not ‘reasonably related to [any] legitimate penological interests.'” Phillips, 408 F.3d at 129 Id. (quoting Shaw v. Murphy, 532 U.S. 223, 225 (2001)).
ii. Application
Ms. Tamarez's equal protection claim is based on Defendants' alleged differential treatment between female and transgender detainees, on the one hand, and male detainees on the other. (ECF No. 1 at 11-12). The federal courts, however, “have wisely refused to entertain equal protection claims based on assertions of differences between the treatment inmates in different facilities, including claims regarding male and female inmates.” Herring v. N.Y.S. Dep't of Corr. Servs., No. 05 Civ. 4502 (TPG), 2007 WL 2589496, at *2 (S.D.N.Y. Sept. 6, 2007) (dismissing equal protection claim based on different services available to female and male inmates). Furthermore, the Complaint lacks any allegations demonstrating that “there is no rational basis for the alleged difference in treatment.” Cox v. (DOCCS) NYS Dep't of Corr., No. 9:23-CV-0057 (GLS/CFH), 2023 WL 3300496, at *7-8 (N.D.N.Y. May 8, 2023) (granting motion to dismiss equal protection claim based on allegedly different treatment of male and female inmates); Calix v. Pullen, No. 3:22-cv-574 (KAD), 2023 WL 423123, at *4 (D. Conn. Jan. 26, 2023) (same). Bedford only houses female inmates, and therefore could not have housed any male detainees from Rikers. (See n.4, supra). As one of the articles Ms. Tamarez attached to the Complaint acknowledges, the City's jails have experienced a “humanitarian crisis,” involving “staggering violence, self-harm, crippling staff absences and the deaths [in 2021] of at least 12 inmates.” (ECF No. 1 at 25). While officials' choice to send detainees from RMSC to Bedford was based on their gender-because Bedford only houses females-Ms. Tamarez has not plausibly alleged that that choice was based on “impermissible considerations” or lacked a “reasonabl[e] relat[ionship] to legitimate penological interests[,]” including the detainees' health and safety. Benjamin, 905 F.2d at 575; see Bd. of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356, 367 (2001) (explaining that a state agency's decision to act on the basis of differences between persons does not give rise to a constitutional violation if “there is a rational relationship between the disparity of treatment and some legitimate governmental purpose”); see Riley v. Roycroft, No. 16 Civ. 2227 (VB), 2017 WL 782917, at *8 (S.D.N.Y. Feb. 28, 2017) (dismissing equal protection claim where complaint showed that decision to transfer plaintiff was based on considerations of plaintiff's health and safety); see also Griffin v. Donelli, No, 2010 WL 681394, at *11 (N.D.N.Y. Feb. 24, 2010) (finding that “[o]rder, security, and the non-molestation of other inmates are valid and substantial penological interests”). Ms. Tamarez has therefore failed to state a plausible equal protection claim.
4. State Defendants as Parties
The State Defendants argue that, as to Ms. Tamarez's damages claims, neither DOCCS nor Governor Hochul in her official capacity are proper defendants. (ECF No. 55 at 14-15). “[A]s a general rule, state governments may not be sued in federal court unless they have waived Eleventh Amendment immunity,' or unless Congress has abrogated the states' Eleventh Amendment immunity when acting pursuant to its authority under Section 5 of the Fourteenth Amendment.” Gollomp v. Spitzer, 568 F.3d 355, 366 (2d Cir. 2009). “The immunity recognized by the Eleventh Amendment extends beyond the states themselves to state agents and state instrumentalities that are, effectively, arms of a state.” Id. “New York State has not waived its sovereign immunity[,] [n]or has Congress, through § 1983, abrogated the state's immunity.” Johnson v. New York, No. 10 Civ. 9532 (DLC), 2012 WL 335683, at *1 (S.D.N.Y. Feb. 1, 2012) (citing Santiago v. N.Y. State Dep't of Corr. Servs., 945 F.2d 25, 31 (2d Cir. 1991)). “DOCCS is an arm of the state[,]” and therefore, Ms. Tamarez's claims against “DOCCS, an agency of the State of New York, are barred by the Eleventh Amendment and must be dismissed.” Id. Similarly, to the extent Ms. Tamarez sues Governor Hochul in her official capacity, that “is no different from a suit against the State itself[,]” and is similarly barred by the Eleventh Amendment. Will v. Mich. Dep't of State Police, 491 U.S. 58, 70-71 (1989).
5. Qualified Immunity
The State Defendants invoke the affirmative defense of qualified immunity against Ms. Tamarez's claims. (ECF No. 55 at 28-30). Due to the recommended dismissal of Ms. Tamarez's claims for lack of standing and failure to state a claim on which relief can be granted, however, it is unnecessary to address this defense. See Pearson v. Callahan, 555 U.S. 223, 236-37 (2009) (explaining that district courts have discretion “in deciding which of the two prongs of the qualified immunity analysis should be addressed first”); see Kiss v. Torres, No. 21 Civ. 10391 (KMK), 2023 WL 2648396, at *15 (S.D.N.Y. Mar. 27, 2023) (declining to consider qualified immunity arguments where plaintiffs failed to state constitutional violation); Estate of M.D. by DeCosmo v. N.Y., 241 F.Supp.3d 413, 432 n.10 (S.D.N.Y. 2017) (same).
C. Leave to Amend
A district court ordinarily should not dismiss a pro se complaint for failure to state a claim “without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). A court must grant leave to amend “unless the court can rule out any possibility, however unlikely it might be, that an amended complaint would succeed in stating a claim.” Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 796 (2d Cir. 1999). If the defects in a pro se complaint are substantive, however, leave to replead should be denied as “futile.” Cuoco, 222 F.3d at 112.
Here, even after liberally interpreting the Complaint, the Court has concluded that it does not contain allegations suggesting that Ms. Tamarez has valid due process or equal protection claims that she has merely “inadequately or inartfully pleaded” such that a “chance to reframe” her allegations is warranted. Cuoco, 222 F.3d at 112. Furthermore, the Court has already afforded Ms. Tamarez a chance to amend the Complaint after she saw Defendants' arguments for dismissal, and she chose not to avail herself of that opportunity. (ECF Nos. 35; 46). Under the circumstances, the Court respectfully recommends that further leave to amend is not warranted. See Tsinberg, 2021 WL 1146942, at *12 (dismissing claims of pro se plaintiff with prejudice and without leave to amend where he had earlier opportunity to amend after seeing defendant's arguments for dismissal); Green v. Niles, No. 11 Civ. 1349 (PAE), 2012 WL 987473, at *7 (S.D.N.Y. Mar. 23, 2012) (denying pro se plaintiff leave to amend where he had a prior opportunity to amend after “gain[ing] a preview of defendants' arguments in support of a motion to dismiss”).
IV.CONCLUSION
For the reasons set forth above, the Court respectfully recommends that Defendants' Motions be GRANTED and the Complaint be DISMISSED WITH PREJUDICE and without leave to amend.
Defendants shall promptly serve a copy of this Report and Recommendation on Ms. Tamarez, and file proof of service on the docket by July 6, 2023.
The Clerk of Court is respectfully directed to mail a copy of this Report and Recommendation to Ms. Tamarez.
SO ORDERED.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Woods.
FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985). If Ms. Tamarez does not have access to cases cited in this Report and Recommendation that are reported on Westlaw, she may request copies from Defendants' counsel. See Local Civ. R. 7.2.