Opinion
No. 05-4269-pr.
November 19, 2007.
Appeal from a judgment of the United States District Court for the Southern District of New York (Colleen McMahon, Judge).
UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED with respect to all defendants except the City of New York.
FOR APPELLANT: Keith McDay, pro se, Romulus, NY.
FOR APPELLEES: David Lawrence III, Assistant Solicitor General (Michael S. Belohlavek, Senior Counsel), Division of Issues and Appeals, Office of the Attorney General of New York State, New York, NY, for Defendants-Appellees B. Travis, L. Torrales, P. Fitzpatrick, and Marcano.
Alison Elaine Gugel, Corporation Counsel, City of New York, New York, NY, for Defendants-Appellees New York City Department of Corrections, Commissioner Fraser, and Warden Eastmond.
PRESENT: JOSÉ A. CABRANES, ROBERT D. SACK, PETERW. HALL, Circuit Judges.
Plaintiff-Appellant Keith McDay appeals pro se from (1) a January 26, 2005, order of the District Court granting summary judgment in favor of the City of New York, the New York City Department of Corrections ("DOC"), Commissioner William Fraser, and Warden Clayton Eastmond ("the City defendants"); and (2) a February 28, 2005, order of the District Court dismissing his complaint against Brion Travis, Chairman of the New York State Division of Parole, and Parole Officers Luis Torrales, Paul Fitzpatrick, and Harry Marcano ("the State defendants") for failing to serve them within the time frame set out by the District Court. We assume the parties' familiarity with the facts and the procedural history of the case. For the reasons given below, we affirm the judgment of the District Court with respect to all defendants except the City of New York.
(1)
"We review the District Court's grant of summary judgment de novo." Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005). Summary judgment is appropriate only if "there is no genuine issue as to any material fact." Fed.R.Civ.P. 56(c). "A fact is material . . . when it might affect the outcome of the suit under the governing law. An issue of fact is genuine if the evidence is such that a reasonable jury could [have] return[ed] a verdict for the [appellant]." Jeffreys, 426 F.3d at 553 (citations and internal quotation marks omitted).
McDay's claims against the City defendants arise from his allegation that (1) these defendants subjected him to "wrongful imprisonment" by keeping him in custody for two days after his state sentence had expired; and (2) that this wrongful imprisonment was the result of defendants' "policy, custom and practice" of detaining parole violators past their maximum term of imprisonment. The district court was correct to dismiss the complaints against Fraser and Eastmond on the grounds that McDay failed to allege their personal involvement in the decision to keep him incarcerated after July 21, 2002, the day his state sentence expired. The district court erred, however, in granting summary judgment for the City of New York.
The City held McDay pursuant to N.Y. Exec. Law § 259-i(3)(a)(i), which states that a parole warrant "shall constitute sufficient authority to the superintendent or other person in charge of any jail, penitentiary, lockup or detention pen to whom it is delivered to hold in temporary detention the person named therein." However, because of the State's failure to afford McDay the hearings to which he was entitled by law, the warrant the City used as a basis for holding McDay beyond his maximum release date may have been illegal under State law — and therefore, may not have constituted sufficient authority to detain McDay. Furthermore, even if the warrant was still valid after July 21, 2002, it may have been unconstitutional for the City to use the detaining authority conferred by § 259-i(3)(a)(i) to hold McDay after the date the City knew to be the expiration of McDay's maximum term of imprisonment. As we stated in Calhoun v. New York State Div. of Parole Officers, 999 F.2d 647 (2d Cir. 1993), "[u]nder both the due-process clause and state law, an inmate has a liberty interest in being released upon the expiration of his maximum term of imprisonment. Since an inmate parole grantee has a liberty interest in being released from prison as soon as possible, it surely follows that he also has a liberty interest in being set free at the end of his term." Id. at 253 (internal citations omitted).
New York law requires the State Division of Parole to hold a preliminary probable cause hearing within 15 days of issuance of the parole warrant, N.Y. Exec. Law § 259-i(3)(c)(i), and a revocation hearing within 90 days after the probable cause hearing, id. § 259-i(3)(f)(i). McDay was arrested on December 13, 2001, yet by July 2002 the Division had not held either hearing. Thus, had McDay properly served the State defendants, he would likely have had a viable due process claim against them. As we explain below, however, he did not properly serve the State and, therefore, has no viable claim against the State defendants.
We, therefore, request further briefing on the foregoing issue, with specific attention to whether we can and should remand the matter to the district court for augmentation of the record or other further proceedings.
(2)
"We review for abuse of discretion a district court's dismissal of an action for failure to timely serve the defendant." Nagy v. Dwyer, No. 06-1149, — F.3d —, 2007 WL 3146327, at *1 (2d Cir. Oct. 29, 2007). "We will find . . . an abuse of discretion if the district court 'applies legal standards incorrectly or relies upon clearly erroneous findings of fact, or proceed[s] on the basis of an erroneous view of the applicable law.'" Karaha Bodas Co., L.L.C. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 500 F.3d 111, 119 (2d Cir. 2007) (quoting Register.com, Inc. v. Verio, Inc., 356 F.3d 393, 398 (2d Cir. 2004)) (brackets in original).
Federal Rule of Civil Procedure 4(m) states, in pertinent part, that:
If service of the summ ons and complaint is not made upon a defendant within 120 days after the filing of the com plaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period.
McDay offers two arguments in support of his claim that the District Court should not have dismissed his complaint against the State defendants. First, he contends that "service of the summons and complaint in the first instance, [that is, on August 29, 2003,] was valid and sufficient," and therefore, that "the District Court erred . . . in Ordering [McDay] to serve the state defendants a second time." Second, he contends that "good cause existed to excuse his failure to serve defendants" by the February 27, 2005 deadline set by the District Court.
McDay's argument that the U.S. Marshal's service of his summons and complaint in August 2003 was valid and sufficient is unavailing in light of the fact that none of the State defendants was actually served at the correct address. His argument that "good cause" existed to excuse his failure to effect proper service is similarly without merit. The District Court allowed McDay the latitude contemplated by Federal Rule of Civil Procedure 4(m), see note 1 ante, by (1) reminding him that the State defendants had still not been properly served, and (2) permitting him an additional thirty days to effect proper service in its order of January 26, 2005. Indeed, by the time that the District Court finally dismissed McDay's complaint against the State defendants, McDay had already been given eighteen months — from August 2003 to February 2005 — to effect proper service, and he still had not managed to do so. For this reason, we conclude that the District Court did not abuse its discretion in dismissing McDay's suit.
Accordingly, we AFFIRM the judgment of the District Court with respect to all defendants except the City of New York, and request further briefing with respect to the case against the City, as noted above. The clerk of court will solicit amicus assistance on behalf of the pro se plaintiff for these purposes. Plaintiff will then have six weeks from the date of this order to simultaneously file and serve on the counsel of record a supplemental brief to this Court. Defendants will have two weeks from the date of the filing and service of plaintiff's supplemental brief to submit any response brief. Plaintiff may submit a reply thereto within no later than ten days after the filing and service of defendants' response supplemental brief. The matter will then be deemed resubmitted to this panel, which will decide the matter without further oral argument unless otherwise ordered.