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BYRD v. SMITH

December 16, 1986

Henry C. Byrd, Sr., Plaintiff,
v.
William French Smith, et al., Defendants



The opinion of the court was delivered by: SPORKIN

 STANLEY SPORKIN, UNITED STATES DISTRICT JUDGE

 This action arises from plaintiff's indictment and conviction in 1983 for perjury in front of a federal grand jury impaneled in North Carolina. United States v. Byrd, No. Cr-83-52-01-WS (M.D.N.C. 1983), aff'd mem., 732 F.2d 151 (4th Cir. 1984), cert. denied, 469 U.S. 866, 105 S. Ct. 208, 83 L. Ed. 2d 139 (1984). *fn1" Plaintiff, proceeding pro se, is a prisoner currently incarcerated in a federal correctional facility in Mocksville, North Carolina. The defendants, who are being sued in their individual and official capacities, are the former Attorney General of the United States, four Assistant U.S. Attorneys and an agent of the Federal Bureau of Investigation. Plaintiff is seeking $ 176 million in damages for alleged violations of 1) 42 U.S.C. § 1985(2) and § 1985(3); and of 2) the Constitution under the rationale of Bivens v. Six Unknown Named Agents, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971); as well as for various common law torts.

 The essence of plaintiff's complaint is that his perjury conviction is the result of a conspiracy entered into by the defendants to mislead and obstruct the grand jury that indicted him. It is plaintiff's contention that the defendants' acts in furtherance of this conspiracy violated his constitutional and civil rights. The case is before the Court on Defendants' Motions to Dismiss. For the reasons set forth this motion is granted and the action is dismissed as to all the defendants.

 I. PRELIMINARY MATTERS

 A. Personal Jurisdiction and Venue

 Defendants argue this complaint should be dismissed for improper venue and lack of personal jurisdiction, contending that the plaintiff has failed to show that this cause of action arose in the District of Columbia and that the 5 non-resident defendants have sufficient minimum contacts with the District. However, I read plaintiff's pro se complaint as sufficient in both regards. First, plaintiff alleges that the defendants entered into a conspiracy to deprive him of his civil rights which originated in Washington, D.C. Second, all the defendants are current or former officers of the government of the United States whose duties have certainly brought them into more than minimum contact with the District.

 B. Service

 Additionally, defendants argue that the plaintiff has failed to serve them properly pursuant to Rule 4(d)(1) or Rule 4(c)(2)(C). However, the record indicates that the plaintiff did in fact have the U.S. Marshalls serve each defendant by certified mail at their offices in Washington, D.C. As is apparent from their affidavits and their motion to dismiss, the defendants have received actual notice of this action. Therefore, I decline to dismiss this case for insufficient service of process. See e.g. Gilliam v. Quinlan, 608 F. Supp. 823, 829, n. 3 (S.D.N.Y. 1985) ("The Goal of Rule 4 of the Federal Rules of Civil Procedure is to insure actual notice. See Hanna v. Plumer, 380 U.S. 460, 462 n.1, 14 L. Ed. 2d 8, 85 S. Ct. 1136 (1965) . . .")

 II. CLAIMS AGAINST THE DEFENDANTS

 In his original complaint, plaintiff demanded $ 476 million in punitive and compensatory damages against the defendants in their individual and official capacities, and requested "injunction [sic] relief against all the defendants and their employees pending the outcome of this civil action." Original Complaint at 5. *fn2"

 A. In Their Official Capacities

 When federal officials are sued in their official capacity, the defense of sovereign immunity applies if the relief sought against them would in effect be relief against the United States. Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 690 n.55, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978), Brandon v. Holt, 469 U.S. 464, 83 L. Ed. 2d 878, 105 S. Ct. 873, 878 (1985). Therefore, the claims against the defendants in their official capacities must be dismissed unless the plaintiff can demonstrate that the sovereign immunity defense has been waived.

 Plaintiff argues that 28 U.S.C. § 1343, § 1331 constitute waivers by the United States to its sovereign immunity. Contrary to plaintiff's assertions such an interpretation is incorrect and has been explicitly rejected by this court. Navy, Marshall & Gordon v. United States International Development-Cooperation Agency, 557 F. Supp. 484, 488 (D.D.C. 1983), quoting Garcia v. United States, 666 F.2d 960, 966 (5th Cir.), cert. denied. 459 U.S. 832, 103 S. Ct. 73, 74 L. Ed. 2d 72 (1982). As plaintiff has failed to cite any manner by which the United States has waived its immunity against suits such as ...


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