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DELGADO v. FEDERAL BUR. OF PRISONS

December 18, 1989

ARMANDO R. DELGADO, Plaintiff,
v.
FEDERAL BUREAU OF PRISONS, et al., Defendants



The opinion of the court was delivered by: REVERCOMB

 GEORGE H. REVERCOMB, UNITED STATES DISTRICT JUDGE

 This matter is before the Court pursuant to Defendants' Motion to Dismiss, FED.R.CIV.P. 12 (b)(1), (b)(2), (b)(3), (b)(5) and (b)(6), or for Summary Judgment. FED.R.CIV.P. 56.

 I. Statement of Facts

 Plaintiff is a sentenced prisoner and a national of Cuba who is currently detained in the Federal Correctional Institution (FCI) in La Tuna, Texas. Defendant Bureau of Prisons (BOP) is an agency of the United States. Defendant Thomas R. Kindt is an employee of Defendant BOP who is presently assigned at the United States Penitentiary, Terre Haute, Indiana, but who previously was assigned as the Warden at the La Tuna FCI.

 The BOP established two Cuban release centers in July 1988, of which the La Tuna FCI is one, to assist in the community placement of Cuban detainees who had been approved for parole by the Immigration and Naturalization Service (INS). Due to the uniqueness of their needs and in order to efficiently process INS related paperwork the BOP assigned these Cubans to a single unit of staff familiar with their needs, denominated Unit 10.

 II. Equal Protection and § 1985 Claims

 Plaintiff filed this complaint against defendants alleging that they abridged his right to equal protection under the Fifth Amendment and conspired to deny him his rights in violation of 42 U.S.C. § 1985. *fn1" This matter must be dismissed for lack of personal service of process against and personal jurisdiction over Defendant Kindt. This matter must be dismissed against both Defendants Kindt and BOP for failure to state a claim upon which relief can be granted.

 A. Lack of Personal Service Against and Personal Jurisdiction Over Defendant Kindt

 Service of process against a federal employee who is sued in his individual capacity must be pursuant to FED.R.CIV.P. 4(d)(1). See Lawrence v. Acree, 79 F.R.D. 669, 670 (D.D.C. 1978), aff'd, 215 U.S. App. D.C. 16, 665 F.2d 1319 (D.C.Cir. 1981); Navy, Marshall & Gordon v. United States International Development-Cooporation Agency, 557 F. Supp. 484, 489 (D.D.C. 1983). Rule 4(d)(1) provides that service upon an individual, other than an infant or incompetent person, shall be made

 
by delivering a copy of the summons and of the complaint to the individual personally or by leaving copies thereof at the individual's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process.

 In the instant case, although the United States Attorney's Office was properly served pursuant to FED.R.CIV.P. 4(d)(4), such service "does not obviate the requirement of personal service under Fed.R.Civ.P. 4(d)(1) where the action is in substance against a federal official in his individual capacity." Lawrence, 79 F.R.D. at 670. Accordingly, in the absence of service of process, this action cannot proceed against Defendant Kindt.

 This Court also does not have jurisdiction over Defendant Kindt where Plaintiff's § 1985 complaint seeks relief against the personal resources of him in his individual capacity. Defendant Kindt was not personally served within the District of Columbia, is not a resident of the District of Columbia, and is not within the District of Columbia long-arm statute which provides, in relevant part, that the Court:

 
may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a claim for relief ...

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