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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK --------------------------------------------------------------X : ROBERTO CIAPRAZI, : : Plaintiff, : : -against: : ANTHONY J. ANNUCCI; BRIAN FISCHER; : KATHLEEN M. RICE; ALBERT J. TEICHMAN; : JUDITH STERNBERG; WILLIAM McCLEAN : III; WILLIAM McCLEAN IV; FERRELL : McCLEAN; PAIGE McCLEAN; BARACK : OBAMA; ERIC HOLDER; PAULA A. WOLFF, : : Defendants. : : --------------------------------------------------------------X LORETTA A. PRESKA, Chief United States District Judge:

ORDER OF DISMISSAL 13 Civ. 0193 (LAP)

Plaintiff, currently incarcerated in the Sing Sing Correctional Facility, brings this pro se action under 42 U.S.C. 1983 and Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), alleging violations of his federal constitutional rights. He seeks damages, injunctive relief, and declaratory relief. Plaintiff sues the Commissioner and a Deputy Commissioner of the New York State Department of Corrections and Community Supervision (Defendants Fischer and Annucci); the Nassau County District Attorney (Defendant Rice); two Nassau County Assistant District Attorneys (Defendants Teichman and Sternberg); the person he is convicted of kidnaping (Defendant William McClean IV, (the victim)); the victims father, mother, and sister (Defendants William McClean III, Ferrell McClean, and Paige McClean); President Barack Obama; Attorney General Eric Holder; and the Chief of the United States Department of Justices International Prisoner Transfer Program (Defendant Wolff). Plaintiff has also filed an ex parte motion for leave to take immediate discovery and to compel discovery, asking the Court to compel Defendant Rice to provide Plaintiff with the addresses of the victim and his family for the purpose of service of process. The Court construes Plaintiffs claims against Defendants Obama, Holder, and Wolff as brought pursuant to Bivens and Plaintiffs claims against the remainder of the Defendants as brought pursuant to 1983. By order dated

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February 20, 2013, the Court granted Plaintiffs request to proceed in forma pauperis. The Court dismisses the complaint for the reasons set forth below. STANDARD OF REVIEW The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. 1915A(a). The Court must dismiss a complaint, or portion thereof, that is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. 1915(e)(2)(B), 1915A(b); see Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). While the law mandates dismissal on any of these grounds, district courts remain obligated to construe a pro se complaint liberally. Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). Thus, pro se complaints should be read with special solicitude and should be interpreted to raise the strongest [claims] that they suggest. Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (internal quotation marks and citations omitted). BACKGROUND Plaintiff is a Romanian citizen. He alleges that he has been incarcerated since February 6, 1991, and in 1996, he was sentenced to serve an imprisonment term of twenty-five years-tolife after he was convicted of kidnaping Defendant William McClean IV. Beginning in 1998, Plaintiff requested permission from the United States Department of Justice (DOJ) to be transferred to a Romanian prison to serve the remainder of his sentence. Plaintiff alleges that DOJ officials sought approval of the transfer from what is now known as the New York State Department of Corrections and Community Supervision (DOCCS).1 Plaintiff alleges that beginning on May 4, 2000, and continuing for eight years thereafter, Defendant Annucci, a DOCCS Deputy Commissioner, denied Plaintiffs requests, stating that NYS Correction Law 5(4) rendered [Plaintiff] ineligible for transfer due to [his] sentence having a maximum of The New York State Department of Correctional Services and the New York State Division of Parole have merged to become the New York State Department of Corrections and Community Supervision. 2
1

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life imprisonment. Plaintiff also alleges that in April 2007, a state court ruled that N.Y. Corr. Law 5(4) did not render him ineligible for a transfer and it remanded the matter to DOCCS.2 Plaintiff alleges that Defendant Annucci then requested the opinions of Defendant Rice and of the victim and his family as to Plaintiffs request for a transfer. In a letter dated October 14, 2008, Defendant Teichman, a Nassau County Assistant District Attorney, opposed [Plaintiffs] transfer on behalf of [D]efendant[] Rice and [the victim and his family.] On November 5, 2008, Defendant Annucci denied Plaintiffs request for a transfer based on the seriousness of the crime, [Plaintiffs] failure to accept responsibility for it, and the objections . . . [of] the prosecuting attorney and the [victim and his family]. In a letter dated November 20, 2008, Plaintiff sought reconsideration of the denial of his request from Defendant Fischer, the DOCCS Commissioner; however, Defendant Fischer failed to respond to his letter.3 On April 12, 2011, Plaintiff again requested a transfer from Defendants Wolff, Fischer, and Annucci. In a letter dated July 28, 2011, based on the serious nature of Plaintiffs crime(s), Defendant Annucci again denied Plaintiffs request. The letter also indicated that that decision was final. Plaintiff sought, in effect, reconsideration from Defendants Fischer and Annucci. On April 10, 2012, Defendant Annucci wrote to Plaintiff indicating that reconsideration of his

Plaintiff appears to have challenged Defendant Annuccis denial of his request for a transfer in an Article 78 petition brought in the New York Supreme Court, Albany County. On April 18, 2007, that court held that N.Y. Corr. Law 5(4) did not make Plaintiff ineligible for a transfer and that he was indeed eligible for a transfer. On April 11, 2008, the New York Supreme Court, Appellate Division, Third Department, affirmed the lower court insofar as it held that N.Y. Corr. Law 5(4) did not render Plaintiff ineligible for a transfer but reversed its holding that Plaintiff was affirmatively eligible for a transfer. In re Ciaprazi v. Goord, 854 N.Y.S. 2d 320 (N.Y. App. Div. 2008). The court noted that eligibility for transfer is governed by Correction Law 71(1b) and the regulations promulgated thereunder. Id. at 321. Plaintiff appears to have challenged that denial of his request for a transfer in another Article 78 proceeding in the New York Supreme Court, Albany County. On January 14, 2010, the New York Supreme Court denied Plaintiffs petition. On November 24, 2010, the Appellate Division affirmed the lower courts judgment, holding that the DOCCS Commissioner has the sole authority to consider a prisoners transfer application pursuant to N.Y. Corr. Law 71(1-b) and that the Commissioner did not abuse that authority in Plaintiffs case. In re Ciaprazi v. Annucci, 911 N.Y.S. 2d 260 (N.Y. App. Div. 2010), leave to appeal denied, 920 N.Y.S. 2d 781 (N.Y. 2011). 3
3

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request for a transfer would require a change in the present circumstances which would in effect[,] support the transfer, such as the Nassau County District Attorney or the crime victim or his family withdrawing their objections. Until then, however, the decision to deny [Plaintiffs] request for transfer remains final. On April 19, 2012, Plaintiff wrote to Defendant Rice, the Nassau County District Attorney, asking if she continued to oppose his transfer, and, if so, why. In a letter dated April 24, 2012, Defendant Sternberg, a Nassau County Assistant District Attorney, wrote that Defendant Rices position on [his] transfer request continues to be [] as explained in previous correspondence with [DOCCS], but the letter did not explain why Defendant Rice held that position. Plaintiff alleges, as to the victim and his family, that they have conspired with, participated with[,] and joined Defendants Rice, Teichman, and Sternberg (the prosecutor Defendants) in their retaliatory actions against [Plaintiff,] namely, their efforts to make sure Plaintiffs requests for a transfer have been denied. He alleges that the victim and his family have had private communication with the prosecutor Defendants as to his requests for a transfer. He also alleges that the prosecutor Defendants acted as the representatives of [the victim and his family] in communicating [their] objections to [D]efendant Annucci. In addition, he alleges that the prosecutor Defendants and the victim and his family used joint objection[s] for opposing [his] transfer, and [D]efendant Teichman[] specifically used [the victim and his familys] objections to buttress his own objections. Also, he alleges that the prosecutor Defendants and the victim and his family coordinated with each other when to object and when not to object to [his] transfer. Plaintiff alleges that the victim and his family did not object to his latest transfer request in early 2011. But after Plaintiff commenced a state habeas corpus proceeding in August 2011, and filed a state court motion in October 2011 alleging that the prosecutor hid exculpatory evidence and that the victim provided perjured identification testimony during Plaintiffs criminal trial, Defendants Annucci and Sternberg relied on the objections of the victim and his family to oppose Plaintiffs request for a transfer. 4

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Plaintiff also alleges that Defendants Annucci, Fischer, Rice, Teichman, and Sternberg retaliated against him with regard to his 2011 prisoner transfer request. In addition, he alleges that Defendants Obama, Holder, and Wolff have violated his constitutional rights as to a treaty by not considering and/or granting his prison transfer request despite state officials objection to such a transfer. DISCUSSION A. The victim and his family Plaintiffs claims against the victim and his family, to the extent that they are construed to be claims raised under 42 U.S.C. 1983, must be dismissed. To state a claim under 1983, a plaintiff must allege both that: (1) a right secured by the Constitution or laws of the United States was violated, and (2) the right was violated by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). Thus, 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 Tancredi v. Metro. Life Ins. Co., 378 F.3d 220, 229 (2d Cir. 2004). For private activity to be deemed state action, there must be a sufficiently close nexus between the State and the challenged action of the [private] entity so that the action of the latter may be fairly treated as that of the State itself. Tancredi, 378 F.3d at 229 (quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 351 (1974) (internal quotation marks omitted, alteration in original)). A challenged activity by a private entity may be deemed state action when the state exercises coercive power, is entwined in [the] management or control of the private actor, or provides the private actor with significant encouragement, either overt or covert, or when the private actor operates as a willful participant in joint activity with the State or its agents, is controlled by an agency of the State, has been delegated a public function by the state, or is entwined with governmental policies. Cranley v. Natl Life Ins. Co. of Vt., 318 F.3d 105, 112 (2d Cir. 2003) (quoting Brentwood Acad. v. Tenn. Secondary Sch. Athletic Assn, 531 U.S. 288, 296 (2001) (alteration in original)). A 5

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complaint that merely alleges that private actors acted in concert with government officials to violate a plaintiffs constitutional rights does not satisfy the state action requirement; a meeting of the minds or intent to conspire between the private defendants and state actors is necessary. Dahlberg v. Becker, 748 F.2d 85, 93 (2d Cir. 1984); see also Ciambriello, 292 F.3d at 324 (A merely conclusory allegation that a private entity acted in concert with a state actor does not suffice to state a 1983 claim against the private entity.); cf. Lane v. Papadimitirious, No. 10 Civ. 0647, 2010 WL 2803490, at *6 (N.D.N.Y. June 18, 2010) (Plaintiff makes claims against the civilian victim or complainant in the charges against him . . . . [Defendants] report and written statement, even if false, do not establish that she acted as part of a conspiracy with police to violate any of plaintiffs constitutional rights. On the contrary, plaintiffs allegations are wholly conclusory and insufficient to establish that [defendant] was acting under color of state law.), report & recommendation adopted, 2010 WL 2803468 (N.D.N.Y July 14, 2010); Szekeres v. Schaeffer, 304 F. Supp. 2d 296, 310-11 (D. Conn. 2004) (private person not a state actor if she compels or pressures a police detective to seek an arrest warrant, or misrepresents herself as a court official, to wit: [a] Victim Advocate. . . . absent some indication that the State exercised coercive power over her or provided significant encouragement, either overt or covert, for her actions. . . .); Jenkins v. Leonardo, No. 90 Civ. 3266, 1992 WL 176665, at *6 (S.D.N.Y July 16, 1992) (in habeas corpus analysis of Sixth and Fourteenth Amendment rights, sex crime victim not a state agent when given instructions by police with respect to recording a telephone conversation with the petitioner), affd on other grounds, 991 F.2d 1033 (2d Cir. 1993). Plaintiffs conclusory allegations as to the victim and his family, all private individuals, do not plausibly demonstrate that the State of New York, or any state actor-Defendant, including any of the prosecutor Defendants, exercise[d] coercive power[over the victim and/or members of his family,] . . . [were] entwined [in] [the] management or control of [any of them], or provide[d any of them] with significant encouragement, either overt or covert with respect to 6

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violations of Plaintiffs federal rights. Cranley, 318 F.3d at 112 (fifth alteration in original, citation omitted). In addition, Plaintiffs allegations do not plausibly demonstrate that the victim and/or any members of his family operate[d] as a willful participant in joint activity with the State or its agents, [were] controlled by an agency of the State, [were] delegated a public function by the [S]tate, or [were] entwined with governmental policies in regard to violations of Plaintiffs federal rights. Id. (citation omitted). Plaintiffs 1983 claims against the victim and his family therefore are dismissed for failure to state a claim on which relief may be granted. 28 U.S.C. 1915(e)(2)(B)(ii). B. Retaliation claims 1. Defendants Annucci and Fischer

To the extent that Plaintiff raises First Amendment claims of retaliation against Defendant Annucci, arising out of Defendant Annuccis July 28, 2011 denial of Plaintiffs 2011 transfer request, such claims must be dismissed. In addition, to the extent that Plaintiff alleges that Defendant Fischer, as Defendant Annuccis supervisor, was liable for such retaliation due to his acquiescence to Defendant Annuccis July 28, 2011 transfer denial, such claims must be also be dismissed. The elements of a First Amendment retaliation claim are: (1) . . . the speech or conduct at issue was protected, (2) . . . the defendant took adverse action against the plaintiff, and (3) . . . there was a causal connection between the protected speech [or conduct] and the adverse action. Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir. 2004) (internal quotation marks and citation omitted). The Second Circuit has warned, however, that: claims by prisoners that particular administrative decisions have been made for retaliatory purposes are prone to abuse. Virtually every prisoner can assert such a claim as to every decision which he or she dislikes. . . . [A] complaint which alleges retaliation in wholly conclusory terms may safely be dismissed on the pleadings alone. In such a case, the prisoner has no factual basis for the claim other than an adverse administrative decision and the costs of discovery should not be imposed on defendants. Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983). 7

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Plaintiff alleges that Defendant Annucci, and by implicit extension, his supervisor, Defendant Fischer, denied his transfer request on July 28, 2011, because of Plaintiffs previous numerous administrative and court complaints about Defendant Annucci between 2008 and 2011, including Plaintiffs letters to Governors Pataki and Spitzer, and to President Bush, his Article 78 and other proceedings in state court, his DOCCS grievances, his efforts to have Defendant Annucci disbarred from the practice of law, and his efforts to have Defendant Annucci criminally prosecuted. Assuming that at least some of Plaintiffs speech and conduct mentioned above is protected by the First Amendment, and assuming that the July 28, 2011 transfer denial constituted adverse action, see Wong v. Warden, FCI Raybrook, 999 F. Supp. 287, 290 (N.D.N.Y. 1998) (discussing that a prisoner is protected from retaliation, including denial of an international prison transfer, for the exercise of his constitutional rights), affd, 171 F.3d 148 (2d Cir. 1999), Plaintiff has failed to allege facts that plausibly demonstrate a causal connection between the protected speech or conduct and the adverse action. While temporal proximity between an inmates [protected act] and [the adverse act] may serve as circumstantial evidence of retaliation[,] Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995), where, as here, Plaintiff alleges that Defendants adverse conduct began before he engaged in protected activity, no inference of causation arises as a result of temporal proximity. Plaintiff alleges that beginning in 2000 well before he began his alleged protected speech or activity against Defendant Annucci and continuing to July 28, 2011, Defendant Annucci repeatedly denied his requests for a prison transfer. Because the course of conduct of which Plaintiff complains began before his protected activity, his allegations do not raise an inference of any causal connection between his alleged protected activity and Defendant Annuccis July 28, 2011 denial of his request for a prisoner transfer. See Reynolds v. Barrett, 741 F. Supp. 2d 416, 435 (W.D.N.Y. 2010) (causation element of prisoners 1983 retaliation claim arising out of his removal from his prison job undercut by criticisms of job performance 8

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prior to protected activity), affd on other grounds, 685 F.3d 193 (2d Cir. 2012); id. (citing Kasper v. Federated Mut. Ins. Co., 425 F.3d 496, 504 (8th Cir. 2005) (in employment law context, [e]vidence of an employers concerns about an employees performance before the employees protected activity undercuts a finding of causation)); see also Bernard v. JP Morgan Chase Bank NA, 408 F. Appx 465, 469 (2d Cir. 2011) ([W]here timing is the only basis for a claim of retaliation, and gradual adverse job actions began well before the plaintiff had ever engaged in any protected activity, an inference of retaliation does not arise.) (internal quotation marks and citation omitted)); Giudice v. Red Robin Intl, Inc., No. 11 Civ. 6099, 2013 WL 749672, at *11 (W.D.N.Y. Feb. 27, 2013) ([T]here can be no inference of causation where, as here, [the employer] has a history of disciplinary actions against Plaintiff[] before he engaged in the protected activity.); Williams v. Time Warner, Inc., No. 09 Civ. 2962, 2010 WL 846970, at *6 (S.D.N.Y. Mar. 3, 2010) (same), affd, 440 F. Appx 7 (2d Cir. 2011). Plaintiff alleges no other facts that plausibly demonstrate any causation, therefore, Plaintiffs retaliation claims against Defendants Annucci, and by extension, Defendant Fischer, are dismissed for failure to state a claim on which relief may be granted. See 1915(e)(2)(B)(ii). 2. Defendants Rice, Teichman, & Sternberg

To the extent that Plaintiff raises First Amendment claims of retaliation against Defendants Rice, Teichman, and Sternberg, arising out of their opposition to Plaintiffs 2011 prison transfer request, such claims must also be dismissed. Plaintiff alleges that prior to his 2011 prisoner transfer request, in a letter dated October 14, 2008, Defendant Teichman, on behalf of Defendant Rice and the victim and his family, opposed his transfer. Plaintiff also alleges that in August 2011, he filed a habeas corpus petition in state court challenging his conviction. That petition was denied but an appeal is pending.4 Plaintiff alleges that Defendants Rice, Teichman, and Sternberg did not, when there were then no pending court challenges to his Defendant Sternberg may have represented or continues to represent New York State during the Plaintiffs state habeas corpus proceeding, as Plaintiff alleges that since 1997[,] [Defendant Sternberg has] represented the [state] in defending the validity of [his] conviction[.] 9
4

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conviction, oppose his 2011 prison transfer request. In October 2011, either during the pendency of his state habeas corpus proceeding or thereafter, Plaintiff filed a motion in state court arguing that the prosecutor unlawfully hid from the judicial process exculpatory evidence . . . and that [the victim] provided perjured identification testimony at trial. Defendant Sternberg, in representing the state, opposed that motion, and opposed Plaintiffs later application to appeal the denial of that motion. Plaintiff alleges that after he filed that motion, Defendant Annucci changed tack and . . . invoked Defendant Rices objection to deny his 2011 prison transfer request. Plaintiff also alleges that only after he filed that motion did Defendant Sternberg, who, up until that time, had not been involved in objecting to his prison transfer requests, got involved by writing a April 19, 2012 letter to him, expressing Defendant Rices continued objection to Plaintiffs transfer. He alleges that Defendants Rice and Sternberg adopted Defendant Teichmans October 14, 2008 objections as their own. Plaintiffs First Amendment retaliation claims against these Defendants fail for reasons similar to those discussed above with regard to Defendants Annucci and Fischer. Assuming that Plaintiffs October 2011 state court motion is protected First Amendment activity, and assuming for the purpose of this order that the objections of Defendants Rice, Teichman, and Sternberg were adverse actions, see Smith v. Levine, No. 11-1445, 2013 WL 362905, at *3 (2d Cir. Jan. 31, 2013) (summary order slip op.) (An adverse action is conduct that would deter a similarly situated individual of ordinary firmness from exercising . . . constitutional rights.) (quoting Gill, 389 F.3d at 381)), Plaintiff fails to demonstrate a causal connection between the protected activity and the adverse action. Defendant Rice, first through Defendant Teichman in 2008, and after Plaintiffs 2011 prison transfer request, through Defendant Sternberg, continued to oppose his prison transfer. As discussed above, no inference of causation arises from the temporal proximity of the events, and Plaintiff alleges no other facts that would show a causal connection when the adverse action began before the continued activity and continued thereafter. See supra at 7-9. Therefore, Plaintiffs First Amendment retaliation claims against Defendants Rice, 10

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Teichman, and Sternberg are dismissed for failure to state a claim on which relief may be granted.5 See 1915(e)(2)(B)(ii). C. Remaining constitutional claims Plaintiffs remaining allegations do not rise to the level of a federal constitutional violation. As stated above, to state a claim under 1983, a plaintiff must allege both that: (1) a right secured by the Constitution or laws of the United States was violated, and (2) the right was violated by a person acting under the color of state law. West, 487 U.S. at 48 (1988). With regard to claims made under Bivens, the Supreme Court recognized . . . an implied private action for damages against federal officers alleged to have violated a citizens constitutional rights. Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009) (quoting Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001)). Mindful of the Courts duty to construe pro se actions liberally, the Court has analyzed Plaintiffs remaining allegations and finds no deprivation of a federal constitutional right. As such, Plaintiffs remaining constitutional claims are dismissed for failure to state a claim on which relief may be granted, 1915(e)(2)(B)(ii), as they lack[] an arguable basis either in law or in fact. Neitzke, 490 U.S. at 325. D. Mandamus and Administrative Procedure Act relief To the extent that Plaintiffs claims seeking an order directing Defendants Obama, Holder, or Wolff to consider or grant Plaintiffs request for a prison transfer can be construed as

To the extent that Plaintiff raises damages claims against Defendant Sternberg arising out of her prosecution of Plaintiffs criminal action and/or her representation of the state in his state habeas corpus action, such claims are dismissed as frivolous and because Defendant Sternberg immune from suit for such relief. See 1915(e)(2)(B)(i), (iii). Defendant Sternberg is immune from suit for damages for such tasks under the doctrines of prosecutorial and government attorney immunity. See Imbler v. Pachtman, 424 U.S. 409, 424-30 (1976) (prosecutorial immunity); Mangiafico v. Blumenthal, 471 F.3d 391, 396 (2d Cir. 2006) (discussing extension of absolute immunity to government attorneys acting as the defense in civil actions); see also Collazo v. Pagano, 656 F.3d 131 (2d Cir. 2011) (sua sponte dismissal of action against a prosecutor for initiating a prosecution or presenting the prosecutions case is considered frivolous under 28 U.S.C. 1915(g)); Montero v. Travis, 171 F.3d 757, 760 (2d Cir. 1999) (holding, in the in forma pauperis context, that [a] complaint will be dismissed as frivolous when it is clear that the defendants are immune from suit (quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)). 11

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claims for mandamus relief under 28 U.S.C. 1361 and/or relief under the Administrative Procedure Act (APA), 5 U.S.C. 701, et seq., such claims must be dismissed. A writ of mandamus is an extraordinary judicial remedy. Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 34 (1980) ([T]he remedy of mandamus is a drastic one, to be invoked only in extraordinary situations[.]). A writ of mandamus will not issue unless (1) the plaintiff[ has] a right to have the act performed, (2) the defendant is under a clear nondiscretionary duty to perform the act requested[,] and (3) [the] plaintiff has exhausted all other avenues of relief. City of New York v. Heckler, 742 F.2d 729, 739 (2d Cir. 1984). The APA provides for judicial review of federal agency decisions, 5 U.S.C. 702, but not decisions committed to agency discretion by law[,] 5 U.S.C. 701(a)(2). The United States and Romania are both parties to a treaty known as the Convention on the Transfer of Sentenced Persons, Mar. 21, 1983, T.I.A.S. No. 10824, 35 U.S.T. 2867 (Convention).6 The Convention entered into force for the United States in 1985 and for Romania in 1996. See Council of Europe, Convention of the Transfer of Sentenced Persons, http://www.conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=112&CM=1&DF=&CL= ENG (last visited Apr. 11, 2013). The Convention does not outline any criteria that a [country] must consider in deciding whether to approve an international transfer. Yosef v. Killian, 646 F. Supp. 2d 499, 505 (S.D.N.Y. 2009); see Bagguley v. Bush, 953 F.2d 660, 662 (D.C. Cir. 1991). In 1977, prior to the United States becoming a party to the Convention, Congress passed the Transfer of Offenders To and From Foreign Countries Act (the Act), 18 U.S.C. 4100, et seq., regulating international prisoner transfers pursuant to then-current and future treaties in which the United States was or would be a party. See 18 U.S.C. 4101(k) (defining treaty as a treaty under which an offender sentenced in the courts of one country may be transferred to the country of which he is a citizen or national for the purpose of serving the sentence); Scalise v.

Apparently, because this treaty was signed in Strasbourg, France, Plaintiff refers to it in his complaint as the Strasbourg Convention. 12

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Thornburgh, 891 F.2d 640, 642 n.2 (7th Cir. 1989). [T]he Act authorizes the Attorney General, acting on behalf of the United States, to transfer offenders [and] it does not contain any limits on the exercise of the Attorney Generals discretion. Yosef, 646 F. Supp. 2d at 505 (citing 18 U.S.C. 4102(1), (3)); see Bagguley, 953 F.2d at 661 (The Act authorizes the Attorney General to implement the Convention.); Scalise, 891 F.2d at 642 (Under . . . the Act, the Attorney General is granted the authority to implement the Convention.). The Attorney General may delegate the authority conferred by [the Act] to officers of the Department of Justice. 18 U.S.C. 4102(11); Wong, 999 F. Supp. at 289. With regard to state prisoners, the Attorney General, and his designates within the Department of Justice, are authorized: to make arrangements by agreement with the States for the transfer of offenders in their custody who are citizens or nationals of foreign countries to the foreign countries of which they are citizens or nationals and for the confinement, where appropriate, in State institutions of offenders transferred to the United States[.] 18 U.S.C. 4102(6) (emphasis added). The Act grants the Attorney General, and his designates, great discretion with regard to international prison transfers. See Yosef, 646 F. Supp. 2d at 505, Bagguley, 953 F. 2d at 662 ([T]he Act and the [Convention] give the Attorney General unfettered discretion with respect to transfer decisions[.]); see also Scalise, 891 F.2d at 645 ([T]his discretion which Congress has bestowed upon the Attorney General in carrying out his duties under the Act is reasonable in light of the unique nature of prisoner transfer decisions.). By the plain language of the Act, a decision of the Attorney General, or his designates, to transfer a state prisoner to another country cannot be made until the custodial state agrees to the transfer. See 4102(6). Plaintiff cannot receive mandamus relief against Defendant Obama, Defendant Holder, or Defendant Holders apparent designate, Defendant Wolff (federal defendants), because Plaintiff does not have a right to have the federal defendants perform the act(s) he seeks. In other words, his complaint fails to allege facts demonstrating satisfaction of the first element of mandamus analysis. See Heckler, 742 F.2d at 739. This is because, to the extent that Plaintiff wants the consideration or the granting of his request for a prison transfer, 4102(6) bars the 13

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federal defendants from considering Plaintiffs request and transferring him without the agreement of New York State officials. Plaintiffs allegations also fail as to the second mandamus element. None of the federal defendants is under a clear nondiscretionary duty to perform the act requested[,] id., if he/she is barred from carrying out such an act without state approval. See 4102(6). Also, even if such agreement was procured, as discussed above, decisions regarding international prison transfers are wholly discretionary. See Heckler, 742 F.2d at 739; see also Scalise, 891 F.2d at 647-49 (denying mandamus relief to American citizen-prisoners attempting to force the Attorney General to promulgate regulations regarding the transfer of such prisoners from foreign countries to the United States because such an act was discretionary). Thus, not only is mandamus relief not cognizable here, but also Plaintiff cannot seek APA relief with regard to the federal defendants decisions regarding the consideration and granting of his prison transfer request, because such discretionary decisions have been conferred to federal officials by law, making APA relief unavailable. See 5 U.S.C. 701(a)(2); Yosef, 646 F. Supp. 2d at 508-09; Bagguley, 953 F.2d at 662; Scalise, 891 F.2d at 648-49. Thus, Plaintiffs claims against Defendants Obama, Holder, and Wolf, in which he seeks mandamus and/or APA relief forcing them to at least consider, if not grant his prison transfer request are therefore dismissed for failure to state a claim on which relief may be granted. See 1915(e)(2)(B)(ii). E. Supplemental jurisdiction To the extent that Plaintiff raises additional state law claims under the Courts supplemental jurisdiction, such claims are dismissed. Under 28 U.S.C. 1367(c)(3), a district court may decline to exercise supplemental jurisdiction over state law claims when it has dismissed all claims over which it has original jurisdiction. 28 U.S.C. 1367(c)(3). Because none of Plaintiffs claims discussed above can survive dismissal, and because such claims are the only ones over which the Court has original jurisdiction, the Court declines to exercise supplemental jurisdiction over whatever state law claims Plaintiff attempts to raise in his 14

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complaint. See Martinez v. Simonetti, 202 F.3d 625, 636 (2d Cir. 2000) (directing dismissal of supplemental state law claims where no federal claims remained). CONCLUSION The Clerk of Court is directed to assign this matter to my docket and to mail a copy of this order to Plaintiff, noting its service on the docket. Plaintiffs complaint, filed in forma pauperis under 28 U.S.C. 1915(a)(1), is dismissed pursuant to 28 U.S.C. 1915(e)(2)(B)(ii) for failure to state a claim on which relief may be granted. Plaintiffs ex parte motion, therefore, is denied as moot. The Court certifies under 28 U.S.C. 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). SO ORDERED:

Dated: April 23, 2013 New York, New York

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