REPORT-RECOMMENDATION AND ORDER1

CHRISTIAN F. HUMMEL, Magistrate Judge.

Plaintiff pro se Marvin Cabbagestalk, an inmate who was, at all relevant times, in the custody of the Federal Bureau of Prisons ("BOP"), incarcerated at FCI Ray Brook, brings this Bivens action against defendant Warden Donald Hudson,2 alleging that defendant Hudson violated his constitutional rights by transferring him from federal to state custody after plaintiff filed a grievance against him. Dkt. No. 7 ("Compl.") ¶ 6. Plaintiff further alleges that Hudson showed deliberate indifference to plaintiff's claim that he was being held in "illegal status." Id.

Plaintiff commenced this action on December 12, 2014 in the Western District of Pennsylvania. See Compl. at 1. By Memorandum-Decision and Order dated February 12, 2015, United States District Judge Cathy Bissoon transferred this action to the Northern District of New York. Dkt. No. 4.

Presently pending is Hudson's motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure ("Fed. R. Civ. P.") 12(b)(6) for failure to state a claim upon which relief may be granted, or, in the alternative, for summary judgment pursuant to Fed. R. Civ. P. 56. Dkt. No. 25. Plaintiff did not file a response.

For the reasons that follow, it is recommended that defendant Hudson's motion be granted.

I. Background

For a discussion of plaintiff's allegations against defendant Hudson, the Court refers the parties to the Senior United States District Judge Gary L. Sharpe's Decision and Order, entered May 27, 2015. Dkt. No. 12.

II. Discussion

A. Moving Papers

Defendant Hudson moves to dismiss the complaint, or, in the alternative, for summary judgment. Dkt. No. 25. The Certificate of Service enclosed with Hudson's motion states that a Notification of the Consequences of Failing to Respond to a Summary Judgment Motion was mailed to plaintiff with the present motion. Dkt. No. 25-8. However, the motion submitted to the Court does not contain a copy of that Notification.

Summary judgment may not be entered against a pro se litigant without first notifying the pro se litigant that failure to respond could result in a default judgment against him or her. Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996). Although, "an easily comprehensible notice from the party moving for summary judgment . . . suffice[s]," Id., Hudson has failed to provide the Court with a copy of the notice that plaintiff actually received. Accordingly, the Court cannot determine from Hudson's papers whether plaintiff was properly on notice of the consequences of failing to respond to this motion. See Hernandez v. Coffey, 582 F.3d 303, 309 (2d Cir. 2009) (holding that a court may convert a motion to dismiss into a motion for summary judgment only where there is "a clear indication" that the plaintiff understood the consequences of summary judgment, as well as the steps that they could take to defeat the motion). Notice to a pro se litigant is particularly important because "the pro se litigant `may be unaware of the consequences of his failure to offer evidence bearing on triable issues.'" Id. at 307 (quoting Beacon Enters., Inc. v. Menzies, 715 F.2d 757, 767 (2d Cir. 1983). As such, the Court must be satisfied that the plaintiff received "unequivocal" notice of the consequences of the conversion. Id. at 307-08 (citation omitted).

Here, the Court was not provided a copy of the Notice sent to plaintiff. Additionally, plaintiff's letter requesting an extension of time to respond to Hudson's motion specifically requested time to respond to the "motion to dismiss." Dkt. No. 29. The letter does not acknowledge that plaintiff was aware that the motion to dismiss could be converted into a motion for summary judgment. See id. Because the Court cannot determ ine from Hudson's moving papers whether plaintiff received the proper notice of the consequences of conversion, the Court declines to convert Hudson's motion to dismiss into a motion for summary judgment.3

B. Legal Standard

Under Fed. R. Civ. P. 12 (b)(6), a defendant may move to dismiss a complaint for a plaintiff's "failure to state a claim upon which relief can be granted." When considering such a motion, a court must "construe plaintiff['s] complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in plaintiff['s] favor." Selevan v. N.Y. Thruway Auth., 584 F.3d 82, 88 (2d Cir. 2009) (quoting Holmes v. Grubman, 568 F.3d 326, 335 (2d Cir. 2009)) (internal quotation marks omitted). However, this "tenet is inapplicable to legal conclusions, and threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 664 (2009)) (internal quotation marks and alterations omitted).

Accordingly, to survive a motion to dismiss, a complaint must state a claim for relief that is "`plausible on its face.'" Iqbal, 556 U.S. at 678 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) (explaining that the plausibility test "does not impose a probability requirement . . . it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal [conduct].")); see also Arar v. Ashcroft, 585 F.3d 559, 569 (2d Cir. 2009) (holding that "[o]n a motion to dismiss, courts require enough facts to state a claim to relief that is plausible. . . .") (internal citations omitted). Determining whether plausibility exists is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679.

Where, as here, a party seeks judgment against pro se litigants, a court must afford the non-moving parties special solicitude. See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006). As the Second Circuit stated,

Id. (internal quotation marks, citations, and footnote omitted); see also Sealed Plaintiff v. Sealed Defendant #1, 537 F.3d 185, 191-92 (2d Cir. 2008) ("On occasions too numerous to count, we have reminded district courts that `when [a] plaintiff proceeds pro se, . . . a court is obliged to construe his pleadings liberally." (internal citations omitted)).

Additionally, the Court notes that because it is not clear whether plaintiff received unequivocal notice of the consequences of conversion to a motion for summary judgment, the Court cannot consider matters outside of the pleadings. Buculei v. United States, No. 04 CV 4503(NG)(LB), 2006 WL 1581415, at *5 (E.D.N.Y. June 2, 2006) (citations omitted). Accordingly, the Court cannot consider any attachments or exhibits to Hudson's motion.

C. First Amendment Retaliation

Plaintiff alleges that Hudson transferred him back to "State Custody" under a fraudulent warrant, in retaliation for plaintiff's filing a "BP-9."4 Compl. ¶ 6. Hudson contends that plaintiff has failed to show that Hudson was actually involved in the transfer, and has therefore failed to show Hudson's personal involvement in the alleged constitutional violation. Dkt No. 25-7 at 5.

Courts are to "approach [First Amendment] retaliation claims by prisoners `with skepticism and particular care[.]'" See, e.g., Davis v. Goord, 320 F.3d 346, 352 (2d Cir. 2003) (quoting Dawes v. Walker, 239 F.3d 489, 491 (2d Cir. 2001), overruled on other grounds by Swierkiewicz v. Sorema, N. A., 534 U.S. 506 (2002)). A retaliation claim under section 1983 may not be conclusory and must have some basis in specific facts that are not inherently implausible on their face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); South Cherry St., LLC v. Hennessee Group LLC, 573 F.3d 98, 110 (2d Cir. 2009). "To prove a First Amendment retaliation claim under Section 1983, a prisoner must show that '(1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there was a causal connection between the protected speech and the adverse action.'" Espinal v. Goord, 558 F.3d 119, 128 (2d Cir. 2009) (quoting Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir. 2004), overruled on other grounds by Swierkiewicz, 534 U.S. 506 (2002)). If the plaintiff meets this burden, the defendants must show, by a preponderance of the evidence, that they would have taken the adverse action against the plaintiff "even in the absence of the protected conduct." Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977). "Types of circumstantial evidence that can show a causal connection between the protected conduct and the alleged retaliation include temporal proximity, prior good discipline, finding of not guilty at the disciplinary hearing, and statements by defendants as to their motives." See Barclay v. New York, 477 F.Supp.2d 546, 558 (N.D.N.Y. 2007). In order to prove an adverse action, a plaintiff must show that the defendant's "`retaliatory conduct . . . would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights. . . . Otherwise, the retaliatory act is simply de minimis, and therefore outside the ambit of constitutional protection.'" Roseboro v. Gillespie, 791 F.Supp.2d 353, 366 (S.D.N.Y. 2011) (quoting Dawes, 239 F.3d at 292-93).

It is well-settled that an inmate does not have a right to be incarcerated in a particular institution. Soto v. Iacovino, No. 01 Civ. 5850(JSM), 2003 WL 21281762, at *2 (S.D.N.Y. June 4, 2003) (citing Montanye v. Haymes, 427 U.S. 236, 96 (1976)). "However, otherwise constitutional acts may be actionable if taken in retaliation for the exercise of First Amendment rights." Id. (citations omitted).

Here, plaintiff has satisfied the first prong of First Amendment retaliation analysis. The filing of a grievance constitutes protected speech under the First Amendment. Graham v. Henderson, 89 F.3d 75, 80 (2d Cir. 1996). Moreover, an inmate's transfer to a different facility does constitute adverse action if done in retaliation for the inmate's exercise of his or her rights under the First Amendment. Smith v. Levine, 510 F. App'x 17, 21 (2d Cir. 2013).

In considering the factors relevant to the third prong of the analysis, the only factor by which the Court can infer a causal connection between the protected speech and the adverse action is the temporal proximity between the two. Plaintiff alleges that he filed a BP-9 form on July 20, 2013, and was transferred to a different facility approximately twenty-three days later on August 13, 2013. Compl. ¶ 6. Although the connection is somewhat tenuous, the Court finds that, in deference to the special solicitude afforded to pro se litigants, he has alleged sufficient facts to overcome Hudson's motion for dismissal. As stated in footnote 4, infra, plaintiff's BP-9 Form is a grievance what would have been sent directly to Hudson. Given that plaintiff was transferred to a different facility only twenty-three days later, the inference is that plaintiff was transferred because he filed the BP-9 Form. At this early stage of the litigation, even viewing the allegations "with skepticism and particular care," plaintiff has managed to state a plausible First Amendment retaliation claim against Hudson. See Espinal v. Goord, 558 F.3d 119, 129 (2d Cir. 2009) (finding that the passage of six months between the protected speech and the adverse action was sufficient to raise the inference of a causal connection); Vega v. Artus, 610 F.Supp.2d 185, 207 (N.D.N.Y. 2009) (denying motion to dismiss where it was "plausible" that the plaintiff was held back from work after filing a grievance).

For the reasons stated above, the Court must also reject Hudson's personal involvement defense. Personal involvement may be shown where "the defendant participated directly in the alleged constitutional violation." Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (citation omitted). Here, plaintiff alleges that Hudson was effected the retaliatory transfer of plaintiff to a different facility in retaliation for a grievance he filed. Thus, plaintiff has pled sufficient facts to establish Hudson's personal involvement.

Accordingly, it is recommended that Hudson's motion on this ground be denied.

D. Calculation of Sentence

Plaintiff contends that Hudson incorrectly determined calculated his sentence, and failed to tabulate his time credit and release eligibility. Compl. ¶ 6. Hudson contends that plaintiff is not entitled relief on this claims because a habeas petition is the proper action to seek relief for this claim. Dkt. No. 25-7 at 6-7.

To the extent that plaintiff challenges the calculation of his sentence, a civil rights action pursuant to Bivens is not the appropriate vehicle. The Supreme Court has stated that actions "challenging the fact or duration of [an inmate's] physical confinement [are] the heart of habeas corpus." Preiser v. Rodriguez, 411 U.S. 475, 498 (1973). However, this Circuit has stated that habeas relief is the proper procedure where the plaintiff is both challenging the length of his imprisonment, and seeking immediate or speedier release. Abdul-Hakeem v. Koehler, 910 F.2d 66, 69 (2d Cir. 1990). Here, plaintiff seeks monetary damages, as opposed to relief. In Heck v. Humphrey, the Supreme Court held that

Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).5 Here, a judgment in plaintiff's favor in regard to his claim that his sentence was incorrectly tabulated would essentially render the sentence invalid. Because plaintiff has failed to state that his sentence has been reversed on direct appeal, expunged by executive order, or called into question by a federal court's issuance of a writ of habeas corpus, he has failed to state a claim that would entitled him to relief.6

Accordingly, it is recommended that Hudson's motion on this ground be granted.

E. Dismissal Under Fed. R. Civ. P. 41(b)

Fed. R. Civ. P. 41 provides that a court may dismiss an action "[i]f the plaintiff fails to prosecute or to comply with [the Federal Rules of Civil Procedure] or a court order[.]" FED. R. CIV. P. 41(b); see Link v. Wabash R.R. Co., 370 U.S. 626, 630 (1962); Baptiste v. Sommers, 768 F.3d 212, 216 (2d Cir. 2014); see also N.D.N.Y.L.R. 41.2(b). Since a dismissal under Rule 41(b) "is a harsh remedy . . . [it] is appropriate only in extreme situations." Lucas v. Miles, 84 F.3d 532, 535 (2d Cir.1996) (citation omitted). Furthermore, where the plaintiff is appearing pro se, "courts `should be especially hesitant to dismiss for procedural deficiencies. . . .'" Spencer v. Doe, 139 F.3d 107, 112 (2d Cir.1998) (quoting Lucas, 84 F.3d at 535); see also Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir.2006) (stating that a pro se litigant is entitled to "special solicitude"). A determination of whether to dismiss an action pursuant to Rule 41(b) involves consideration of:

Lucas, 84 F.3d at 535 (citing Jackson v. City of New York, 22 F.3d 71, 74 (2d Cir.1994)) (additional citation omitted).

When evaluating the aforementioned five factors, all compel dismissal. Plaintiff has not had any contact with the Court for over eight months. It appears that sometime during the last eight months, plaintiff was released from custody at SCI Brenner Township. Dkt. No. 32. To the extent that plaintiff could contend that he failed to receive the above notices and orders, such failures stem from plaintiff's failure to comply with the local rules and provide the Court with an updated address. See N.D.N.Y.L.R. 10.1(c)(2) ("All . . . pro se litigants must immediately notify the Court of any change of address."). The text order issued by the Court on January 11, 2016 explained that a failure to respond and update his address would result in a recommendation to dismiss his case. The notification was proper. The fact that Brooks did not receive it based on his failure to comply with the local rules cannot be imputed upon the Court. Accordingly, the first two factors weigh in favor of dismissal.

The prejudice to defendants from plaintiff's continued failures results primarily in the inability of Hudson to conclude the present litigation. Defendants have diligently defended the instant action, filing this motion for dismissal. Plaintiff did not file a response. Thus, defendants would be prejudiced due to their inability to further litigate this action without participation the participation of plaintiff.

The need to alleviate court calendar congestion also compels dismissal. This case, which is not unduly complex, has been pending for over a year and a half, but there is not end in sight given plaintiff's failure to contact the Court. The guideline for completion of cases in this district is eighteen months. See N.D.N.Y. Gen. Order 25 (directing the timely progression of civil actions). With this delay must also be balanced plaintiff's right to due process. Plaintiff's right to due process has been scrupulously honored here. Thus, in these circumstances, the balance of these factors weighs in favor of the need to alleviate court congestion.

Against this must be balanced the efficacy of lesser sanctions than dismissal. Courts have "broad discretion to enforce . . . obligations and may, in appropriate circumstances, use the extreme sanction of a default judgment. . . ." United States v. Aldeco, 917 F.2d 689, 690 (2d Cir. 1990) (citations omitted). As discussed supra, plaintiff would have received adequate notice concerning the consequences of his failures had he continued to remain active in this litigation and comply with the Local Rules. Thus, the only question that remains is whether the sanction of dismissal is appropriate. Lesser sanctions are insufficient to address the prejudice to defendants. Monetary sanctions would be empty gestures in light of plaintiff's in forma pauperis status. Given the procedural posture of the case, it cannot move forward without plaintiff's participation, and plaintiff has been absent from this litigation for over eight months.

Consideration of these factors, therefore, compels the conclusion that dismissal of the action affords the only reasonable method of addressing plaintiff's failures to fulfill his obligations to prosecute this case. No meaningful alternative but dismissal is left.

Accordingly, it is recommended that this case be dismissed in its entirety as to all claims and all defendants pursuant to Fed. R. Civ. P. 41 and N.D.N.Y.L.R. 41.2(a).

III. Conclusion

For the reasons stated above, it is hereby:

Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Small v. Sec'y of HHS, 892 F.2d 15 (2d Cir. 1989); see also 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72, 6(a), 6(e).

Calvin Livio Buculei, Ayer, MA, pro se.

Orelia E. Merchant, United States Attorneys Office, Brooklyn, NY, Denise McGinn, United States Attorneys Office, Central Islip, NY, for Respondent.

ORDER

GERSHON, United States District Judge:

*1 Following a conviction in the United States District Court for the District of Maryland for various crimes involving sexual exploitation of a minor, Calvin Livio Buculei, acting pro se, made a motion pursuant to Federal Rule of Criminal Procedure 41(g) for the return of certain property that had been seized from his home in Long Island City, New York. By order dated November 18, 2004, the motion was referred to the Honorable Lois Bloom, United States Magistrate Judge, for report and recommendation ("R & R"). In response to Mr. Buculei's motion, the government filed a motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) (lack of subject matter jurisdiction) and 12(b)(6) (failure to state a claim). In support of its motion, the government submitted the declaration of Special Agent Robert Allen Hamlett of the Federal Bureau of Investigation ("FBI"). Subsequently, Mr. Buculei filed a traverse that addressed both the factual contentions made by Special Agent Hamlett and the legal arguments made by the government. The traverse was not, however, accompanied by any sworn statements or documentary evidence. Magistrate Judge Bloom issued an R & R on March 14, 2006, recommending that the government's motion to dismiss be granted in part, insofar as it was based on lack of subject matter jurisdiction, and denied in part, insofar as it was based on failure to state a claim. The government filed objections to the R & R on May 4, 2006. No objections were filed by Mr. Buculei. The court now adopts Magistrate Judge Bloom's recommendations with modifications, as set forth below.

Upon the termination of criminal proceedings, the government must return seized property to its rightful owner. United States v. David, 131 F.3d 55, 59 (2d Cir.1997). The government need not, however, return property in which it has a continuing interest or that is contraband. Id. A district court has ancillary jurisdiction to decide a criminal defendant's post-trial motion for the return of seized property. Rufu v. United States, 20 F.3d 63, 65 (2d Cir.1994). If made after the termination of criminal proceedings against the defendant, as is the case here, such a motion should be treated as a civil complaint for equitable relief. Id. The court is required to take evidence and make factual findings to identify any items still in the possession of the government. Id.

According to Special Agent Hamlett's declaration, the FBI retained certain photographs seized from Mr. Buculei's home, which appear to depict minor females, so that FBI agents could attempt to identify those females and determine whether any were victims of child sexual exploitation. Thus, based on Special Agent Hamlett's account, the government has a continuing interest in the photographs. Special Agent Hamlett also stated that the FBI retained as contraband a videotape that depicts explicit sexual activity involving a known minor victim of sexual exploitation. Since the government has no duty to return property in which it has a continuing interest or that is contraband, Mr. Buculei's claims with respect to the photographs and videotape described above are subject to dismissal absent an evidentiary showing by Mr. Buculei that calls into question the facts supplied by Special Agent Hamlett.

*2 As Magistrate Judge Bloom found, although the government submitted matters outside the pleadings for the court to consider on its motion to dismiss-namely, Special Agent Hamlett's declaration-it failed to provide the notice to Mr. Buculei, a pro se litigant, that is required by Local Civil Rule 12.1. In the interest of justice, the government will be granted fourteen days to cure this defect.1 All parties are hereby on notice that the court intends to convert the government's motion to dismiss for failure to state a claim to a motion for summary judgment. The government is directed to serve and file the notice required by Local Civil Rule 56.2 within fourteen days after the date of this order. Mr. Buculei is directed to serve and file any additional evidentiary materials within thirty days after the date of this order. The requirements of Local Civil Rule 56.1 are waived for all parties.

With respect to the other items of property identified in Mr. Buculei's motion, Magistrate Judge Bloom credited Special Agent Hamlett's statement that the items were not currently in FBI custody. According to Special Agent Hamlett, some of the items had been destroyed, some had been returned to Mr. Buculei's mother, and some had never been seized by the FBI. As a result, Magistrate Judge Bloom concluded, correctly, that the court lacks subject matter jurisdiction over Mr. Buculei's claims concerning those items. (Unlike on a motion to dismiss for failure to state a claim, on a motion to dismiss for lack of subject matter jurisdiction, matters outside the pleadings may be considered without converting the motion to one for summary judgment or providing special notice to pro se litigants.) Accordingly, with respect to all of Mr. Buculei's claims except those concerning the photographs of females who appear to be minors and the videotape depicting explicit sexual activity with a known victim of child sexual exploitation,2 the government's motion to dismiss for lack of subject matter jurisdiction is granted.

In sum, with respect to Mr. Buculei's claims for the return of photographs depicting females who appear to be minors and a videotape depicting explicit sexual activity with a known victim of child sexual exploitation, the government's motion to dismiss for failure to state a claim is converted to a motion for summary judgment. The government is directed to serve and file the notice required by Local Rule 56.2 within fourteen days after the date of this order and Mr. Buculei is directed to serve and file any additional evidentiary materials within thirty days after the date of this order. With respect to Mr. Buculei's claims for the return of other seized property, the government's motion to dismiss for lack of subject matter jurisdiction is granted.

SO ORDERED.

REPORT AND RECOMMENDATION

BLOOM, United States Magistrate Judge:

The Honorable Nina Gershon, United States District Judge, referred the government's motion to dismiss the instant action for the return of property to me for a Report and Recommendation pursuant to 28 U.S.C. § 636(b). Catalin Livio Buculei, proceeding pro se, moves for the return of property seized pursuant to a search warrant issued in connection with the criminal investigation of his involvement in the sexual exploitation of minors. Buculei's motion lists sixteen items he seeks to recover. He seeks both his property and $100,000 in damages. The government states that each of the items has either been destroyed, returned or is being retained as contraband, and moves to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6). For the reasons that follow, I respectfully recommend that the government's motion should be granted in part and denied in part.

BACKGROUND

*3 On February 6, 1999, Calvin Livio Buculei was arrested and charged with statutory rape in Hartford County, Maryland.1 On February 9, 1999, a search warrant was issued for items to be seized from Buculei's home in Long Island City, New York by United States Magistrate Judge Roanne Mann of this Court. These items were sought in connection with the criminal investigation of movant's solicitation of minors over the internet for the purpose of engaging in sexual acts and the recording of those acts by photograph and videotape.

On December 14, 1999, Buculei was convicted in the United States Court for the District of Maryland of Interstate Travel with Intent to Engage in a Sexual Act with a Minor in violation of 18 U.S.C. § 2423(b); Sexually Exploiting a Minor for the Purpose of Producing Child Pornography in violation of 18 U.S.C. § 2251(a); and Obtaining custody and Control of a Minor for the Purpose of Producing Child Pornography in violation of 18 U.S.C. § 2251A(b)(2). Movant's Mot. at 2-3; Respondent's Memorandum of Law at 2 ("Resp.'s Mem. at___"). On August 15, 2000, Buculei was sentenced to 240 months of incarceration and five years of supervised release.

Following his conviction, a number of items seized pursuant to the search warrant were returned to Buculei, including a packet of family photographs. Upon discovering that some photographs were missing, movant sought the return of the photographs and additional specific property through his counsel and his mother, but was unsuccessful in recovering certain items. Movant lists the property he seeks as follows:

In footnotes, Buculei states that some of the videotapes and photographs depict Megan C., whom he refers to as "the victim." He does not seek the return of the images of Megan C., but does seek the return of photographs and video footage of several other females of unspecified age,2 arguing that these images are not the result of illegal activity or pornographic in nature. Buculei also specifically seeks the return of video footage of "an octogenarian gentleman, family friend and now deceased, [who] recites in approximately fifteen-twenty seconds all 50 states of the union and their respective capitals," as well as footage of his mother, Silvia Hustiu.

*4 On October 14, 2004, Buculei filed the instant motion for return of property pursuant to Federal Rule of Criminal Procedure 41(e)-now Rule 41(g).3 He argues that none of the items he seeks to recover was seized as the result of illegal activity, used to further the commission of illegal activity, or used as evidence at his trial. Buculei requests an order directing the government to return the items or money damages in excess of $100,000. The Honorable Nina Gershon referred the instant motion to me for a Report and Recommendation pursuant to 28 U.S.C. § 636(b).

After two extensions of time to respond to the complaint, on May 6, 2005 the government moved to dismiss pursuant to Rule 12(b)(1) and (6) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. In support of its motion, the government submits the Declaration of Robert Allen Hamlett, ("Hamlett Decl."), a Special Agent with the Federal Bureau of Investigation ("F.B.I."). The government's motion did not contain the notice to pro se litigants required under Local Civil Rules 12.1 and 56.2 for the Court to convert a motion to dismiss to a motion for summary judgment. Buculei filed a traverse in reply to the government's motion to dismiss on June 10, 2005.

DISCUSSION

I. Standards for Motion to Dismiss

a. Subject Matter Jurisdiction

Rule 12(b)(1) of the Federal Rule of Civil Procedure applies to assert a "lack of jurisdiction over subject matter." Fed.R.Civ.P. 12(b)(1). "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." Makarova v. U.S., 201 F.3d 110, 113 (2d Cir.2000). Federal courts are "duty bound . . . to address the issue of subject matter jurisdiction at the outset." Filetech v. France Telecom S.A., 157 F.3d 922, 929 (2d Cir.1998). "In resolving the question of jurisdiction, the district court can refer to evidence outside the pleadings and the plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it [jurisdiction] exists." Luckett v. Bure, 290 F.3d 493, 496-97 (2d Cir.2002) (citing Makarova, 201 F.3d at 113). This is so because a court "cannot render a judgment in a case which it has no power to entertain." Lane v. Reid, 559 F.Supp. 1047, 1049 (S.D.N.Y.1983).

b. Failure to State a Claim

Unlike a motion to dismiss for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1)-or motions made under Fed.R.Civ.P. 12(b)(2), (3), (4), (5) or (7)-when a district court considers a motion to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6), "it must limit itself to the facts stated in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint." Hayden v. County of Nassau, 180 F.3d 42, 54 (2d Cir.1999). The Court must accept all well-pleaded factual allegations as true and draw all reasonable inferences in the plaintiff's favor. Koppel v. 4987 Corp., 167 F.3d 125, 130 (2d Cir.1999). A motion to dismiss should only be granted if it "appears beyond doubt that the plaintiff can prove no set of facts . . . that would entitle him to relief." King v. Simpson, 189 F.3d 284, 286-87 (2d Cir.1999). Where, as here, a party is proceeding pro se, the Court is obliged to "read his supporting papers liberally, and will interpret them to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994).

*5 "[I]f matters outside the pleading are presented to and not excluded by the court" on a 12(b)(6) motion, "the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." Local Civil Rules 12.1 and 56.2 provide additional protection to parties proceeding pro se. Under Local Rule 12.1, "[a] represented party moving to dismiss [under Fed.R.Civ.P. 12(b)(6)] . . . against a party proceeding pro se, who refers in support of the motion to matters outside the pleading . . . shall serve and file the notice required by Local Civil Rule 56.2 at the time the motion is served." The notice required by Local Rule 56.2 informs the pro se plaintiff that the defendant has moved for summary judgment, and that the claims asserted in the complaint "may be dismissed without trial" if they fail to respond. The 56.2 notice further advises a pro se plaintiff that they may not simply rely on the allegations in their complaint to survive a motion for summary judgment, but must submit evidence, "such as witness statements or documents, countering the facts asserted by the defendants and raising issued of fact for trial."

Local Rule 12.1 is strictly construed. In the Southern and Eastern Districts, a motion under Rule 12(b)(6) may not be converted to a motion for summary judgment unless the pro se plaintiff has been given "unequivocal notice." Scott v. Gardner, 287 F.Supp.2d 477, 485 (S.D.N.Y.2003) (quoting Beacon Enterprises, Inc., v. Menzies, 715 F.2d 757, 767 (2d Cir.1983)). When Federal Rule of Civil Procedure 12(b)(6) and Local Rule 12.1 are read together, it is clear that: (1) the Court cannot consider matters outside the pleading on a motion to dismiss for failure to state a claim unless the motion is converted to a motion for summary judgment, and (2) a motion under Rule 12(b)(6) cannot be converted to a motion for summary judgment unless the requisite notice has been given. See also, e.g., Curry v. Mazzuca, No. 05 Civ. 1542(NRB), 2006 WL 250487 (Feb. 2, 2006 S.D.N.Y.) (motion to dismiss under Rule 12(b)(6) properly converted to Rule 56 motion for summary judgment when notice was given); Pieczenik v. Cambridge Antibody Technology Group, No. 03 Civ. 6336(SAS), 2004 WL 527045 (March 16, 2004 S.D.N.Y.) (observing the distinction that Local Rule 12.1 requires notice and conversion when matters outside the pleadings are considered on a motion to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6) but not on a motion to dismiss for lack of personal jurisdiction under Rule 12(b)(2).)

II. Equitable Jurisdiction and Rule 41(g)

In general, the government should return seized property, other than contraband or property in which it has a "continuing interest," to the rightful owner upon the termination of criminal proceedings. United States v. David, 131 F.3d 55, 59 (2d Cir.1997). A motion seeking the return of such property pursuant to Federal Rule of Criminal Procedure 41(g) that is filed after the conclusion of criminal proceedings, as here, is treated as a claim for civil equitable relief. See Boero v. Drug Enforcement Admin., 111 F.3d 301, 303 n. 1 (2d Cir.1997) (construing movant's submission as a civil claim where criminal proceedings were no longer pending); Onwubiko v. United States, 969 F.2d 1392, 1397 (2d Cir.1992) ("[w]here criminal proceedings against the movant have already been completed, a district court should treat a rule 41(e) motion as a civil complaint"). In cases where the property is still in defendant's possession, the district court has ancillary jurisdiction to order the equitable relief sought: the return of the property to its rightful owner. Where the property has been lost or destroyed, however, this type of traditional equitable relief is unavailable.

*6 The Court of Appeals for the Second Circuit formerly held that the government is liable for money damages "when [it] gives away, loses or destroys a prisoner's property." Mora v. United States, 955 F.2d 156, 160 (2d Cir.1992). However, in Adeleke v. United States, the Second Circuit joined its sister circuits in holding that sovereign immunity deprives the district court of jurisdiction over plaintiff's due process claims for damages. Adeleke v. United States, 355 F.3d 144, 147 (2d Cir.2004). The Adeleke Court emphasized that:

Id. at *5.

a. The Status of the Property

The government submits the declaration of Robert Allen Hamlett in support of its motion to dismiss. As discussed above, submissions outside the pleadings may be considered in deciding a motion to dismiss for lack of subject matter jurisdiction. Hamlett states the following disposition of the property at issue: Items one, two and three-the developed and undeveloped photographs-were either returned to Buculei's mother or destroyed or are still in the possession of the FBI "because they have depictions of known minor female victims of sexual exploitation and/ or depictions of unknown potential minor female victims of sexual exploitation," and thus are property in which the government has a continuing interest. Regarding item four, the two compact/micro VHS casettes, Hamlett says that one cassette was destroyed and the other is still in the F.B.I.'s possession because it depicts sexual activity with the known minor victim and thus qualifies as contraband. Hamlett does not say whether the only footage on the surviving VHS cassette is that showing illegal sexual activity. Hamlett states that items five, six, seven, eight, nine, ten, eleven, twelve, and thirteen were destroyed, and that the disposition of items fourteen and fifteen is unknown, but in any case they are no longer in the possession of the government. Hamlett states that the F.B.I. never seized four "collector's items" Playboy and Penthouse magazines listed as item sixteen.

i. The Items No Longer in the Government's Possession

This Court lacks subject matter jurisdiction over Buculei's claims regarding those items that are no longer in the possession of the government, as they cannot be returned and "sovereign immunity bars a federal court from ordering the United States to compensate for property that cannot be returned pursuant to Rule 41(g)." Adeleke, 355 F.3d at 147. This is so when the property is no longer available for return for "whatever reason." Id. at 151. Thus, it is of no moment whether the property was destroyed or whether its disposition is unknown, so long as it is no longer in the government's possession to return. The government's motion to dismiss for lack of subject matter jurisdiction should therefore be granted as to: any photographs that were destroyed or returned to Buculei's mother described in his list of property under numbers one, two or three; the destroyed VHS cassette listed under item four; and all of the items listed under numbers five, six, seven, eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen and sixteen.

ii. The Items Retained by the Government

*7 Hamlett states in his declaration that the F.B.I. retains the following items: photographs depicting known minor female victims of sexual exploitation and/or unknown potential minor female victims of sexual exploitation, and one compact/micro VHS cassette containing footage of explicit sexual activity with a known minor victim. The government contends that these items are being retained by the F.B.I. either because of that agency's continuing interest in the material-e.g., comparing the retained photographs with its Child Victim Identification Program data base-or because these items qualify as contraband.

While these arguments, supported by Hamlett's declaration, might have succeeded on a motion for summary judgment pursuant to Fed.R.Civ.P. 56, the government did not supply the notice required pursuant to Local Civil Rules 12.1 and 56.2. As stated above, the Court cannot consider matters outside the pleadings on a Rule 12(b)(6) motion, and it cannot convert a motion to dismiss for failure to state a claim to a Rule 56 motion for summary judgment without the requisite notice. Since no such notice was given, the facts averred in Hamlett's declaration may not be considered as to the items the government acknowledged it retained.

Plaintiff "has no objection" to the government removing any depictions of the victim, Megan C., from the photographs and videotape, or, in the case of the videotape, to the government returning a copy of the tape to him with any scenes of the victim edited out. As to the images of the other females, Buculei does not state their ages but does state that these items were not the result of illegal activity and were not used to further the commission of such activity. Taking movant's statements as true and drawing all reasonable inferences in his favor, as the Court must, defendant's instant motion under Rule 12(b)(6) should be denied without prejudice. Although I do not consider the facts set forth in Buculei's traverse because it is not a "pleading," I note that he makes the obvious argument that the females depicted in the photographs were above the age of majority at the time the photos were taken. This is, at least, one possible set of facts that would entitle him to return of the photographs. Accordingly, because I cannot consider Hamlett's declaration to support the government's instant motion under Fed.R.Civ.P. 12(b)(6), the government's motion to dismiss for failure to state a claim should be denied.

CONCLUSION

It is respectfully recommended that the government's motion to dismiss the instant action for the return of property should be granted in part and denied in part. As to those items no longer in the government's possession, respondent's motion to dismiss should be granted pursuant to Fed.R.Civ.P. 12(b)(1). The Court lacks subject matter jurisdiction over these claims under Adeleke. As to those items retained by the F.B.I., the government's motion to dismiss for failure to state a claim should be denied. It is further recommended that if the single surviving VHS cassette contains footage other than that of the victim or other females who may be minors-for example, footage of Buculei's mother or his octogenarian family friend-such footage should be separated and returned to movant. Buculei does not seek photographs or video footage of the victim. Limited discovery should proceed on the materials retained by the F.B.I. described at numbers one, two and three and the one videotape that was not destroyed. The remainder of the instant action should be dismissed.

FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

*8 Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court. Any request for an extension of time to file objections must be made within the ten-day period. Failure to file a timely objection to this Report generally waives any further judicial review. Marcella v. Capital Dist. Physician's Health Plan, Inc., 293 F.3d 42 (2d Cir.2002); Small v. Sec'y of Health and Human Services, 892 F.2d 15 (2d Cir.1989); see Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985).

SO ORDERED.

Marvin Cabbagestalk, Bellefonte, PA, pro se.

Chad L. Allensworth, PA Board of Probation and Parole, Harrisburg, PA, for Respondents.

MEMORANDUM OPINION AND ORDER

CYNTHIA REED EDDY, United States Magistrate Judge.

*1 Petitioner, Marvin Cabbagestalk ("Cabbagestalk"), a state prisoner incarcerated at the State Correctional Institution—Benner Township, in Bellefonte, Pennsylvania, has petitioned for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 in connection with the recalculation of his maximum sentence date by the Pennsylvania Board of Parole and Probation (the "Board"). Cabbagestalk does not challenge the revocation of his parole, but rather the Board's authority to recalculate his parole maximum date and the calculation of that date. The Board argues that the Petition should be dismissed because Cabbagestalk has failed to exhaust state-court remedies and because it has no merit in any event. For the reasons discussed below, the Court will deny the Petition because Cabbagestalk has procedurally defaulted on his claims.1

Relevant Factual and Procedural History

On November 19, 1998, Cabbagestalk was sentenced in the Court of Common Pleas of Allegheny County to a term of four to eight years after being convicted of Robbery. This sentence is being served at Department of Corrections' inmate number DU-6337. The original minimum and maximum dates for this sentence were October 3, 2001 and October 3, 2005, respectively. (ECF No. 12-1, Exh. 1.)

On October 28, 2002, Cabbagestalk was granted parole. On November 2, 2003, Pittsburgh Police arrested Cabbagestalk for new criminal charges for an incident involving firearms. (Id. at Exh. 2.) On that same day, the Board lodged a detainer against Cabbagestalk for parole violations based on the new criminal charges. (Id. at Exh. 5.) Cabbagestalk was returned to State Correctional Institution ("SCI") Pittsburgh on November 10, 2003. (Id. at Exh. 3.) Based on the November 2, 2003 incident, Cabbagestalk was charged with multiple firearms and driving offenses in the Court of Common Pleas of Allegheny County at CP# 17674-2003. (Id. at Exh. 4.)

On April 20, 2004, a federal grand jury sitting in the United States District Court for the Western District of Pennsylvania returned a one-count Indictment against Cabbagestalk charging him with Possession of A Firearm By A Convicted Felon, in violation of 18 U.S.C. §§ 922(g) (1) and 924(a)(2). (Id. at Exh. 6.)

On June 30, 2004, Cabbagestalk was transferred by writ from SCI-Pittsburgh to federal custody. He appeared in federal court and was ordered detained on the new federal charges. He did not post bail. On that same day, he was returned to SCI-Pittsburgh. (Id. at Exh. 3.)

On August 3, 2004, the criminal charges filed in the Court of Common Pleas of Allegheny County at CP# 17674-2003 were withdrawn. (Id. at Exh. 4.)

Cabbagestalk was transferred from SCI-Pittsburgh to federal custody by writ on September 29, 2004. On that day, he pled guilty in federal court to Possession of a Firearm by a Convicted Felon. He was returned to SCI-Pittsburgh on September 29, 2004. (Id. at Exh. 3.)

On November 15, 2004, the Board conducted a revocation hearing on Cabbagestalk's new federal conviction. (Id. at Exh. 7.)

*2 On January 19, 2005, by writ Cabbagestalk was transferred from SCI-Greene, where he had been incarcerated since January 18, 2005, to the Allegheny County Jail. (Id. at Exh. 3.) The following week, on January 26, 2005, Cabbagestalk was sentenced in federal court for Possession of a Firearm by a Convicted Felon to a term of imprisonment of 120 months in the custody of the U.S. Bureau of Prisons followed by a three-year term of supervised release. (Id. at Exh. 8.) He was returned to SCI-Greene on January 27, 2005. (Id. at Exh. 3.)

By decision mailed February 24, 2005 (recorded 2/17/2005), the Board recommitted Cabbagestalk as a convicted parole violator, when available, for the offense of Possession of a Firearm by a Convicted Felon. (Id. at Exh. 9.) The revocation decision did not recalculate the maximum sentence for Cabbagestalk's sentence at his DU-6337 sentence because he was required to serve his new federal prison sentence before he could commence service of his original sentence. (Id. at Attachment A.)

On October 3, 2005, the Board released Cabbagestalk due to the expiration of his original maximum sentence date. (Id. at Exh. 3.) He began serving his federal sentence on that date. Cabbagestalk received prior jail credit on his federal sentence from November 2, 2003, to October 2, 2005. (Id. at Exh. 10.)

On November 4, 2005, while Cabbagestalk was in federal custody, the Board re-lodged a detainer. (Id. at Exh. 11.) Cabbagestalk completed his federal sentence on August 13, 2013. (Id. at Exh. 10.) As a result of the Board's detainer, he was returned to SCI-Pittsburgh on August 25, 2013. He was transferred and arrived at SCI-Benner Township on February 25, 2014. (Id. at Exh. 3.)

The Board mailed Cabbagestalk its decision recalculating his parole violation maximum date on his original sentence at inmate number DU-6337. His maximum date for this sentence was revised from October 3, 2005, to November 21, 2015, based on his recommitment as a convicted parole violator. (Id. at Exh. 12.) The November 21, 2015 parole violation maximum date calculation reflects Cabbagestalk's forfeiture of credit for the period of time he was at liberty on parole from his initial sentence at inmate number DU-6337 from October 28, 2002 to November 1, 2003. (Id. at Exh. 13.) Cabbagestalk did not receive any credit on his DU-6337 sentence during the time he was incarcerated from July 1, 2004, to August 12, 2012. However, Cabbagestalk was credited on his DU-6337 sentence for the period he was incarcerated from November 2, 2003 to June 30, 2004. The November 21, 2015 maximum date calculation reflects that Cabbagestalk became available to commence service of his original sentence, DU-6337, on August 13, 2013. (Id. at Exh. 13.)

The Board mailed Cabbagestalk notice of his new November 21, 2015, maximum date on September 6, 2012. Language in that notice advised Cabbagestalk of his appeal rights:

(Id. at Exh. 12.) Cabbagestalk did not file a request for administrative relief within thirty (30) days of the recalculation decision and did not appeal the recalculation decision to any Pennsylvania court. (Id. at Attachment A.) Cabbagestalk is currently still incarcerated on his four to eight year sentence. (Id.)

Petitioner commenced the present action on March 14, 2014, pursuant to 28 U.S.C. § 2254 by filing a petition for writ of habeas corpus. He challenges the Board's recalculation of his maximum sentence date of November 21, 2015. Specifically, he contends that the Board's recalculation (i) is a violation of the due process clause, (ii) the prohibition against cruel and unusual punishment, (iii) the separation of powers doctrine, and (iv) the double jeopardy clause. He seeks an order from this Court ordering the Board to immediately grant him parole and release him from custody. (ECF No 3.)

Standard of Review

This case is governed by the federal habeas statute applicable to state prisoners, 28 U.S.C. § 2254. A habeas corpus petition pursuant to 28 U.S.C. § 2254 is the proper mechanism for a state prisoner to challenge the "fact or duration" of his confinement. Learner v. Fauver, 288 F.3d 532 (3d Cir.2002).

Discussion

The provisions of the federal habeas statute require a state prisoner to exhaust available state court remedies before seeking federal habeas corpus relief. See Coleman v. Thompson, 501 U.S. 722, 731-32, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Slutzker v. Johnson, 393 F.3d 373, 379 (3d Cir.2004). A petitioner shall not be deemed to have exhausted the remedies available in the courts of the state, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented. See 28 U.S.C. 2254(c); OSullivan v. Boerckel, 526 U.S. 838, 844-45, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999); Holloway v. Horn, 355 F.3d 707, 714 (3d Cir.2004). The petitioner bears the burden of establishing that all available state remedies have been exhausted. Parker v. Kelcher, 429 F.3d 58, 62 (3d Cir.2005). This exhaustion requirement is applicable to allege unconstitutional acts of the parole board. See DeFoy, v. McCullough, 393 F.3d 439 (3d Cir.2005).

In the case of a Pennsylvania parole violator, such as Cabbagestalk, the petitioner must first challenge the Board's decision by filing a petition for administrative review with the Board within thirty days of the mailing date of the Board's determination. See 37 Pa.Code § 73.1(b)(1); Kester v. Pennsylvania Bd. of Prob. and Parole, 148 Pa.Cmwlth. 29, 609 A.2d 622, 626 (Pa.Commw.1992) (citing Bronson v. Pennsylvania Bd. of Prob. and Parole, 491 Pa. 549, 421 A.2d 1021, 1024-25 (Pa.1980)). The administrative appeal must be followed by an appeal to the Pennsylvania Commonwealth Court. See 42 Pa. Cons.Stat. § 763(a) (jurisdiction of Commonwealth Court over appeals from final orders of government agencies); Borsello v. Colleran, 833 A.2d 1213, 1215 (Pa.Commwlth.2003) ("Appeals of the Board's parole revocation and recommitment orders are within the exclusive appellate jurisdiction of the Commonwealth Court.") The third and final step petitioner must file is a Petition for Allowance of Appeal with the Pennsylvania Supreme Court. See 42 Pa. Cons.Stat. § 724; Williams v. Wynder, 232 F. App'x 177, 178 (3d Cir.2007). If the petitioner fails to seek review from the Pennsylvania Supreme Court, then petitioner has not fully complied with the State's exhaustion requirements for the purpose of 28 U.S.C. § 2254. Williams, 232 F. App'x at 181.

*4 Here, the Court agrees with Respondents that Cabbagestalk never challenged the Board's calculation of his parole violation maximum date before the Board, the Commonwealth Court, or the Pennsylvania Supreme Court. Accordingly, the Court finds that Cabbagestalk failed to exhaust all of his available state remedies and because any such state challenge would be procedurally barred, his claims are procedurally defaulted for purposes of federal habeas. See Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Collins v. Secretary of Pennsylvania Dep't of Corr., 742 F.3d 528, 542 (3d Cir.2014) ("A claim is procedurally defaulted if the petitioner failed to exhaust that claim in state court and if state procedurals prohibit the petitioner from later presenting the claim in state court.").

A federal court cannot consider claims in a Section 2254 petition which have been procedurally defaulted unless the petitioner demonstrates either cause for the procedural default and actual prejudice, or that a fundamental miscarriage of justice will result if the court does not review the claims. Jones v. Pennsylvania Bd. of Probation and Parole, 492 F. App'x 242, 244 (3d Cir.2012). To demonstrate "cause" for a procedural default, petitioner must point to some objective external factor which impeded his efforts to comply with the state's procedural rule. See Murray v. Carrier, 477 U.S. 478, 488 (1986). "Prejudice" will be satisfied only if the petitioner can demonstrate that the outcome of the state proceeding was "unreliable or fundamentally unfair" as a result of a violation of federal law. See Lockhart v. Fretwell, 506 U.S. 446, 451 (2000). The miscarriage of justice exception applies only in extraordinary cases where a "constitutional violation has probably resulted in the conviction of one who is actually innocent." Murray, 477 U.S. at 496. "`[A]ctual innocence' means factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998).

In his Petition, Cabbagestalk relies on the holding in Barnes v. Wenerowicz, 280 F.R.D. 206 (E.D.Pa.2012), to suggest that he does not need to exhaust his claims. Cabbagestalk's reliance on this case to suggest that he need not exhaust his state court remedies prior to filing a habeas states petition challenging the Board's calculation of his maximum release date following a parole violation is misplaced. The petitioner in Barnes was challenging the denial of reparole. Here, Cabbagestalk is not challenging the denial of parole, rather he is challenging the Board's authority and recalculation of his maximum sentence date based on his revocation of parole. Moreover, the Board notified Cabbagestalk of his appeal rights in its September 6, 2013, decision establishing his new parole violation maximum date.

Based on the record evidence, it is clear that the claims Cabbagestalk seeks to pursue are procedurally defaulted without excuse as he was aware of, but did not perfect, his appeal of the Board's decision. Likewise, there is no indication in his Petition that a failure to review his claim will result in a fundamental miscarriage of justice. As such, the Court agrees with Respondents that the pending habeas petition is subject to dismissal based on procedural default.

Certificate of Appealability

*5 Section 102 of AEDPA, which is codified at 28 U.S.C. § 2253, governs the issuance of a certificate of appealability for appellate review of a district court's disposition of a habeas petition. It provides that "[a] certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right." "A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). "When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was right in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Here, jurists of reason would not find the procedural disposition of this case debatable. Accordingly, no COA will issue.

An appropriate Order follows.

AND NOW, this 22nd day of January, 2015,

It is hereby ORDERED that the Petition for Writ of Habeas Corpus is DENIED.

IT IS FURTHER ORDERED that a certificate of appealability is DENIED.

IT IS FURTHER ORDERED that the Clerk of Court mark this case CLOSED.

AND IT IS FURTHER ORDERED that pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure, Petitioner has thirty (30) days to file a notice of appeal as provided by Rule 3 of the Federal Rules of Appellate Procedure.

MEMORANDUM ORDER

MARTIN, J.

*1 Efrain Soto, a prisoner in state custody, brings this action pro se, alleging that Defendants retaliated against him for filing grievances, that he was denied certain medical treatment, and that certain of his property was destroyed by prison officials. The Defendants now move to dismiss on various grounds.

The Defendants' first argument is that the Complaint is deficient in that it does not set forth the dates of the particular events at issue with sufficient particularity to allow them to determine whether it would be appropriate for them to assert a statute of limitations defense. While it is true that specific dates are lacking, the Complaint refers to events that are documented in the records of the Department of Corrections, which are available to the Defendants. Thus, little purpose would be served by requiring Plaintiff to replead to allege these dates. If, at the close of discovery, it appears that certain claims are time barred, Defendants can then move for summary judgment.

Defendants' motion to dismiss the eighth amendment claims against the nursing staff is denied. To establish an unconstitutional denial of medical care, a prisoner must prove "deliberate indifference to [his] serious medical needs." Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 290, 50 L.Ed.2d 251 (1976). See also Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir.1994) (The official must disregard a "substantial risk of serious harm."). In this case, Plaintiff has alleged, among other things, that he is HIV +, that Defendants knew this to be so, and that they deprived him of his medication for an eight day period while he was in the SHU.1 Plaintiff also has submitted documentation to the effect that such deprivation "can lead to the development of HIV mutations resistant to the medication," as well as "cross-resistance" to other medications. This, as well as his other allegations of medical indifference, state a claim that may not be dismissed at this juncture.

On the other hand, Plaintiff has not alleged sufficient facts to establish that the acts of the nursing staff were in fact acts of retaliation. "To survive summary dismissal, a plaintiff asserting First Amendment retaliation claims must advance non-conclusory allegations that establish: (1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there was a causal connection between the protected speech and the adverse action." Dawes v. Walker, 239 F.3d 489, 492 (2d Cir.2001). Plaintiff has not alleged facts that would demonstrate a causal connection between his protected speech regarding the actions of various corrections officers and the nurses' failure to provide him with requested medical care.

The claims against Superintendent Strack and Deputy Superintendent Mazzucca also must be dismissed. The Complaint fails to allege that the Superintendent and the Deputy Superintendent were personally involved in any of the allegedly retaliatory actions. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995) ("It is well settled in this Circuit that `personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.'" (quoting Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994)).

*2 Plaintiff has also adequately asserted a claim of retaliatory transfer. It is well settled that a prisoner has no right to be in a particular institution. Montanye v. Haymes, 427 U.S. 236, 96 S.Ct. 2543, 2547, 49 L.Ed.2d 466 (1976). However, otherwise constitutional acts may be actionable if taken in retaliation for the exercise of First Amendment rights. ACLU of Maryland v. Wicomico County, Md., 999 F.2d 780, 785 (4th Cir.1993); Franco v. Kelly, 854 F.2d 584, 590 (2d Cir.1988) ("An act of retaliation for the exercise of a constitutional right is actionable under section 1983 even if the act, when taken for different reasons, would have been proper."); Haymes v. Montanye, 547 F.2d 188 (2d Cir.1976), cert. denied, 431 U.S. 967, 97 S.Ct. 2925, 53 L.Ed.2d 1063 (1977) (It was constitutionally impermissible to transfer in retaliation for exercise of constitutional rights.); Lowrance v. Coughlin, 862 F.Supp. 1090, 1098-99 (S.D.N.Y.1994). In order to state such a cause of action a plaintiff must allege, as stated above, "1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there was a causal connection between the protected speech and the adverse action." Dawes v. Walker, 239 F.3d 489, 492 (2d Cir.2001). Alleging the ultimate fact of retaliation in a conclusory manner is insufficient. However, a Complaint will withstand a motion to dismiss if the Plaintiff alleges "a chronology of events from which retaliation may plausibly be inferred." Cain v. Lane, 857 F.2d 1139, 1143 (7th Cir.1988); see also Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir.1995), cert. denied, 516 U.S. 1084, 116 S.Ct. 800, 133 L.Ed.2d 747 (1996); Smith v. Maschner, 899 F.2d 940, 948-49 (10th Cir.1990); Althouse v. Hill, No. 3-02-Cv-1263-D, 2003 U.S. Dist. LEXIS 1266, *11 (N.D. Texas Jan. 29, 2003). Plaintiff in this case has alleged such a chronology and is entitled, therefore, to pursue his claims.

Defendants' motion to dismiss the claims relating to the destruction of Plaintiff's property also is denied. The Court does not construe these as due process claims, which would be subject to a motion to dismiss. Rather, Plaintiff has alleged that specific corrections officers deliberately destroyed his property in order to retaliate against him for the filing of grievances. If this is true, it states a viable claim.

Conclusion

For the foregoing reasons, Plaintiff's claims against Superintendent Strack and Deputy Superintendent Mazzucca are dismissed, as are his claims of retaliatory denial of medical care. Defendants' motion to dismiss the other allegations of the Complaint is denied.

SO ORDERED.