Opinion
No. 99 Civ. 0975(GBD).
May 24, 2001
MEMORANDUM OPINION and ORDER
On August 1, 2000, Magistrate Judge Henry Pitman issued a Report and Recommendation granting defendants motion to dismiss plaintiffs Amended Complaint in its entirety. Plaintiff filed timely objections to the Report and Recommendation on August 10, 2000, and defendants filed an opposition to plaintiffs objections to the Report and Recommendation on August 21, 2000.
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court is required to "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject or modify, in whole or in part, the findings or recommendations made by the magistrate." This Court has reviewed plaintiffs objections to Magistrate Judge Pitman's Report and Recommendation and has also given plaintiffs objections to the Report and Recommendation the liberal construction so required of pro se papers so as "to raise the strongest arguments that they suggest." Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995); Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). Upon a de novo review of the Report and Recommendation, this Court finds that recommendations of Magistrate Judge Pitman should be adopted in their entirety.
Pro se plaintiff, an inmate in the custody of the New York State Department of Corrections, filed this action for damages and injunctive relief resulting from his alleged improper removal from a Temporary Release Program in 1996. Plaintiff alleges that in June 1996, plaintiff was served with a misbehavior report alleging that plaintiffs urine had tested positive for cocaine. Thereafter, plaintiff alleges that on June 19, 1996, the Temporary Release Committee at the Lincoln Correctional Facility held a hearing and rendered a decision to remove plaintiff from the Temporary Release Program. Plaintiff alleges that he was neither given notice of this hearing nor an opportunity to be heard, therefore the removal hearing violated his constitutional rights.
In plaintiff's objections to the Report and Recommendation, he challenges Magistrate Judge Pitman's determination that in the instant case, all the acts relevant to plaintiffs removal from the Temporary Release Program took place during a time period of conflicting judicial decisions, therefore plaintiffs liberty interests could not be clearly established. Therefore, Magistrate Judge Pitman found that defendants are entitled to qualified immunity against plaintiffs claim. Plaintiff challenges this finding stating that the Second Circuit has continually asserted that a liberty interest exists in a Work Release Program. In his objections, plaintiff states, "In 1978 the Second Circuit Court of Appeals declared a prisoner has a liberty interest in his continued participation in the Work Release Program, see Tracy v. Salamack, 572 F.2d 393, 395-396. The Second Circuit Court of Appeals has continually and consistently stated `It has been clear since Tracy that a liberty interest exist [sic] in a work release program.' Severino v. Negron, 996 F.2d 1439, 1441 (2d Cir. 1993)." However, upon a review of the case law cited by Magistrate Judge Pitman, plaintiff and defendants in their memorandum of law in opposition to plaintiffs objections, this Court finds that Magistrate Judge Pitman has correctly stated the law of this Circuit, therefore, defendants are entitled to qualified immunity.
See Report and Recommendation of Magistrate Judge Pitman dated August 1, 2000 at 8, "Although an inmate's right to due process in connection with removal from a temporary release program was clearly established before the Supreme Court's June 19, 1995 decision in Sandin v. Connor, [ 515 U.S. 472 (1995)], and after the Second Circuit's June 17, 1999 decision in Kim v. Hurston, [ 182 F.3d 113 (2d Cir. 1999)], see Kim v. Hurston, supra, 182 F.3d at 120, the existence of the right during the intervening four-year period was in serious question. As the Court of Appeals noted in Kim, Sandin placed the existence of the right in `some doubt,' and during the four years following Sandin, `the district courts in New York have disagreed on whether an inmate has a liberty interest in continued participation in work release.'" 182 F.3d at 117-18.
Accordingly, after conducting an independent de novo review of the Report and Recommendation is it hereby,
ORDERED AND ADJUDGED as follows:
1. The Report and Recommendation of United States Magistrate Judge Pitman dated August 1, 2000, is approved, adopted and ratified by the Court;
2. It is ordered that the Amended Complaint be dismissed in its entirety on that ground that all defendants are entitled to qualified immunity and that the Amended Complaint be dismissed as to defendant Goord for the additional reason that it fails to allege his personal involvement in the alleged constitution violation;
3. The Clerk of the Court is directed to dismiss the Amended Complaint.
SO ORDERED: