United States District Court, D. Vermont
OPINION AND ORDER ADOPTING MAGISTRATE JUDGE'S
REPORTS AND RECOMMENDATIONS (Docs. 1, 4, 6, 11, 12,
Christina Reiss, District Judge United States District Court
matter came before the court for a review of the Magistrate
Judge's October 10, 2017 and December 14, 2017 Reports
and Recommendations (the "R & R's"). (Docs.
11 & 13.) On August 16, 2017, self-represented Petitioner
Patricia Kane filed a petition for writ of habeas corpus,
challenging an order of hospitalization pursuant to 18 V.S.A.
§ 7617(b)(1) which placed her into the custody of
Respondent Commissioner of the Department of Mental Health
and required her mandatory confinement and medication at the
Brattleboro Retreat. (Doc. 1.) On September 13, 2017,
Petitioner filed a motion to amend her initial petition and a
motion for a preliminary injunction ordering her release from
custody. (Doc. 4.) Nine days later, on September 22, 2017,
Petitioner filed a motion for release from unlawful
confinement. (Doc. 6.) In the October 10, 2017 R & R, the
Magistrate Judge recommended that the court deny
Petitioner's motion to amend as well as her motion for a
preliminary injunction. (Doc. 11.)
November 3, 2017, Respondent filed a motion to dismiss the
initial habeas petition for lack of jurisdiction and failure
to state a claim pursuant to Fed.R.Civ.P. 12(b)(1) and (6).
(Doc. 12.) On December 14, 2017, the Magistrate Judge issued
a second R & R, recommending that Respondent's motion
to dismiss be granted, that Petitioner's petition for
writ of habeas corpus be denied, and that Petitioner's
motion for release from unlawful confinement be denied as
moot. (Doc. 13.) Neither party filed objections to either R
& R, and the time to do so has expired.
district judge must make a de novo determination of
those portions of a magistrate judge's report and
recommendation to which an objection is made. Fed.R.Civ.P.
72(b); 28 U.S.C. § 636(b)(1); Cullen v. United
States, 194 F.3d 401, 405 (2d Cir. 1999). The district
judge may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge. 28
U.S.C. § 636(b)(1); accord Cullen, 194 F.3d at
405. A district judge, however, is not required to review the
factual or legal conclusions of the magistrate judge as to
those portions of a report and recommendation to which no
objections are addressed. Thomas v. Arn, 474 U.S.
nine page October 10, 2017 R & R, the Magistrate Judge
carefully considered Petitioner's motion for immediate
release from Respondent's custody. Observing that the
Vermont Supreme Court was considering Petitioner's
request for relief from the order of hospitalization and
involuntary medication order on direct appeal, the Magistrate
Judge correctly concluded that Petitioner had failed to
exhaust her state court remedies. See 28 U.S.C.
§ 2254(b)(1)(A) ("An application for a writ of
habeas corpus on behalf of a person in custody pursuant to
the judgment of a State court shall not be granted unless it
appears that ... the applicant has exhausted the remedies
available in the courts of the State").
Magistrate Judge nonetheless proceeded to analyze
Petitioner's motion to amend her initial petition,
wherein she sought to add as respondents her two assigned
attorneys from the Mental Health Law Project and a physician
at the Brattleboro Retreat. In recommending that the court
deny the motion, the Magistrate Judge noted that
Petitioner's proposed Complaint failed to contain a short
and plain statement establishing either the grounds for the
court's jurisdiction or Petitioner's entitlement to
relief as required by the Federal Rules of Civil Procedure
and this court's Local Rules. See Fed. R. Civ.
P. 8(a); L.R. 15(a).
respect to Respondent's motion to dismiss for lack of
jurisdiction and failure to state a claim, the Magistrate
Judge noted that Petitioner was discharged from
Respondent's custody on October 4, 2017. On that basis,
the Magistrate Judge properly recommended that the court
grant Respondent's motion to dismiss and deny
Petitioner's petition for writ of habeas corpus because
the relief Petitioner sought was no longer necessary. See
Ogunwomoju v. United States, 512 F.3d 69, 73 (2d Cir.
2008) (quoting 28 U.S.C. § 2254(a)) ("A petitioner
must be 'in custody' in order to invoke habeas
jurisdiction of the federal courts."). The court finds
the Magistrate Judge's conclusions well-reasoned and
consistent with the applicable law.
foregoing reasons, the court hereby ADOPTS the Magistrate
Judge's October 10, 2017 R & R (Doc. 11) and DENIES
Petitioner's motions for immediate release and to amend
her initial petition for writ of habeas corpus (Docs. 1 &
4). The court further ADOPTS the Magistrate Judge's
December 14, 2017 R & R (Doc. 13) and GRANTS
Respondent's motion to dismiss (Doc. 12). The court
hereby DENIES and DISMISSES Petitioner's petition for
writ of habeas corpus (Doc. 1). Petitioner's motion for
release from unlawful confinement (Doc. 6) is DENIED AS MOOT.
to Fed. R. App. P. 22(b)(1) and 28 U.S.C. § 2253(c)(2),
the court DENIES Petitioner a certificate of appealability in
this matter because Petitioner has failed to make a