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DEUTSCH v. UNITED STATES DOJ

March 31, 1995

MELVIN P. DEUTSCH, Plaintiff,
v.
UNITED STATES DEPARTMENT OF JUSTICE, et al., Defendants.



The opinion of the court was delivered by: CHARLES R. RICHEY

 Before the Court in the above-captioned case is the Defendants' Motion to Dismiss. Upon careful consideration of the parties pleadings, the entire record herein, and the applicable law with respect thereto, the Court will GRANT the Defendants' Motion.

 I. BACKGROUND

 Plaintiff, a prisoner incarcerated at the Loretto Federal Correctional Institution at Loretto Pennsylvania, brings the above-entitled action pro se and in forma pauperis, alleging that the Defendants conspired to interfere with his receipt of legal correspondence in violation of his constitutional rights, the Racketeer Influenced and Corrupt Organization Act, and the Sherman Act. Plaintiff seeks both injunctive and monetary relief from the Defendants in their individual capacities.

 More particularly, Plaintiff alleges that Defendants have opened correspondence from his attorney or otherwise denied him access thereto. Complaint, P 5, 8. Such interference, Plaintiff maintains, denied him an effective appeal of his conviction. Complaint, P 38.

 While Plaintiff acknowledges that the pertinent regulations require the identification of legal mail as such, and that the correspondence in question was not marked as legal mail, he claims that the name of his attorney on the envelope was followed by the title "Esquire." Plaintiff argues that "all mail coming from an attorney and/or a court should be considered legal mail no matter if it states ["Legal Mail"] or not on the face of the envelope." Complaint, P 8. Plaintiff further argues that "The title Esquire in New York is all that a lawyer need[s] [to] use to be identified as an attorney [and that] the Federal Bureau of Prisons must respect this marking." Complaint, P 5.

 Plaintiff seeks twenty-one million dollars ($ 21,000,000) in RICO damages, punitive damages "in the amount of One Dollar (1.00) or ten percent of the total assets of each Defendant[]," Complaint, 23, and thirty-million dollars ($ 30,000,000) in general and special damages.

 
A. Plaintiff's Bivens claims must be dismissed for want of jurisdiction, for improper venue, and for failure to state a claim upon which relief can be granted.

 Plaintiff invokes Bivens v. Six Unknown Named Agents, 403 U.S. 388, 397, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971), as the basis for recovery against the various Defendants in their individual capacities. However, because Plaintiff has failed to perfect service against any of the individual Defendants, because the Court would be unable to exercise personal jurisdiction over the non-resident Defendants, because venue does not lie in this district for Plaintiff's Bivens claims, and because Plaintiff has failed to satisfy the heightened pleading standard applicable to suits against government officials in their individual capacities, his Bivens claims must be dismissed.

 
1. The Court is unable to exercise jurisdiction over the Defendants because Plaintiff has failed to effect proper service of process on them.

 Because Bivens suits are suits against government officials in their individual, rather than their official, capacities, personal jurisdiction over the individual defendants is necessary to maintain a Bivens claim. See Delgado v. Bureau of Prisons, 727 F. Supp. 24 (D.D.C. 1989); Lawrence v. Acree, 79 F.R.D. 669, 670 (D.D.C. 1978). Proper service of process upon defendants is necessary to obtain jurisdiction over defendants in their individual capacities. Pollack v. Meese, 737 F. Supp. 663, 666 (D.D.C. 1990). Failure, therefore, to perfect service of process is fatal to a Bivens action. Id.

 Rule 4 of the Federal Rules of Civil Procedure requires that a copy of the summons and complaint be delivered to the defendant (or his appointed agent) personally, or be left "at his [or her] dwelling house or usual place of abode with some person of suitable age and discretion" who resides there. Service on the Attorney General and the United States Attorney for the district in which the action is brought, pursuant to the rules applicable to suits against officials in their official capacity "does not obviate the requirement of personal service . . . where the action is against a federal official in his [or her] individual capacity." Lawrence, 79 F.R.D. at 670. Accordingly, because Plaintiff has failed to effect service of process on the Defendants, the Court is unable to exercise jurisdiction over them and the Bivens action against them must accordingly be dismissed.

 
2. The Court cannot exercise jurisdiction over Defendants Smith, Ortiz, Tippy, Hill Sullivan, Lamitie, Gilliland, and Essig.

 The District of Columbia long arm statute, D.C. Code ยง 13-423, is the only basis upon which personal jurisdiction may be obtained over defendants who do not reside within or maintain a principal place of business in the District of Columbia. Reuber v. United States, 242 U.S. App. D.C. 370, 750 F.2d 1039, 1049 (D.C. Cir. 1984). The statute provides that a court in the District of Columbia may exercise personal jurisdiction over a defendant with regard to a claim arising from the defendant's

 
(1) transacting any business in the District of Columbia;
 
(2) contracting to supply services in the District ...

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