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CARBERRY v. HESS

June 29, 1990

YOCHANAN JOHN CARBERRY, Plaintiff,
v.
FREDERICK HESS, et al., Defendants


Joyce Hens Green, United States District Judge.


The opinion of the court was delivered by: GREEN

JOYCE HENS GREEN, UNITED STATES DISTRICT JUDGE

 This case comes before the Court on defendants' motion to dismiss, or in the alternative, for summary judgment. For the reasons stated below, defendants' motion to dismiss is granted.

 I. BACKGROUND

 On March 25, 1988, pro se plaintiff Yochanan John Carberry, a former state and federal prisoner, was transferred from the United States to the United Kingdom at his own request, pursuant to the Repatriation of Prisoners Act of 1984. He is currently incarcerated at H.M. Prison Swaleside, Eastchurch, Kent England.

 On November 13, 1989, plaintiff filed the instant complaint against several federal officials, in their official and individual capacities, alleging violations of his Sixth and Eighth Amendment rights and his civil rights under 42 U.S.C. § 1983. On February 13, 1990, defendants filed a motion to dismiss, or in the alternative, for summary judgment. Plaintiff filed an opposition to defendants' motion on May 2, 1990, several weeks after this Court denied his request to be returned to the United States to advance presentation of this case.

 II. DISCUSSION

 Defendants assert a number of grounds in support of their motion to dismiss including: lack of subject matter jurisdiction, lack of personal jurisdiction, insufficiency of process, insufficiency of service, and failure to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b). Because the Court agrees that subject matter jurisdiction is lacking, defendants' other arguments need not be reached.

 Resolution of defendants' subject matter jurisdiction argument turns on the proper characterization of plaintiff's complaint. Section 3244 of Title 18 entitled "Jurisdiction of proceedings relating to transferred offenders" provides:

 
When a treaty is in effect between the United States and a foreign country providing for the transfer of convicted offenders --
 
. . . .
 
(4) All proceedings instituted by or on behalf of an offender seeking to challenge the validity or legality of the offender's transfer from the United States shall be brought in the United States district court of the district in which the proceedings to determine the validity of the offender's consent were held and shall name the Attorney General as respondent . . . .

 18 U.S.C. § 3244(4).

 The proceedings to determine the validity of plaintiff's consent were held by a United States Magistrate for the Western District of Oklahoma, Oklahoma City, Oklahoma. Accordingly, if plaintiff's complaint is characterized as one which challenges the validity or legality of his transfer, ...


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