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ROBERTSON v. MEROLA

July 31, 1995

MARCUS ROBERTSON, Plaintiff,
v.
ANTHONY K. MEROLA, JOY LILLY, SALLY SALIBA, WILLIE B. CLEMMONS, AND JOE BROOKS, Defendants.



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

 UNITED STATES DISTRICT JUDGE

 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, formerly a prisoner incarcerated at the Federal Correctional Institution at Sandstone, Minnesota, filed the instant action pro se and in forma pauperis alleging that the Defendants unlawfully kept him in custody beyond his term. Plaintiff claims that the Defendants thereby violated his rights under the First, Fifth, and Sixth Amendments.

 While claiming that he was held in custody past the time of the completion of his sentence, Plaintiff recognizes that, at the time he completed his initial sentence, two other jurisdictions had lodged detainers against him. Complaint, PP 15-18, 25-27. Plaintiff further concedes that he received sentences after completing his federal sentence, the first on or about March 15, 1995 from a Pennsylvania court for a term of 3-6 years, the second on or about March 16, 1995 from a New York court for a term of 1-3 years. Plaintiff alleges, however, that the sentences were somehow deemed to have been served as of the dates they were imposed, id., PP 25-26, and that "the action and or non-actions of the defendants . . . individually and/or in conspiracy together . . ." violated Plaintiff's rights under the Due Process Clause when the Defendants refused to release him from prison and did not more quickly "contact the courts to process plaintiff's [Judgment and Commitment Orders]." Id., P31. Plaintiff also claims that unspecified Defendants threatened him with disciplinary action because he made repeated telephone calls in an attempt to effect his release.

 Plaintiff seeks compensatory damages in the amount of five hundred-dollars, and punitive damages in the amount of two hundred and fifty dollars, for every day he was-allegedly incarcerated after the expiration of his sentence against each of the Defendants in their individual capacities. In addition, Plaintiff, who was incarcerated at the time he drafted his Complaint, sought to have the Court declare his continued incarceration illegal and effect his immediate release. Plaintiff was subsequently released from federal custody.

 
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.

 
A. 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. FED.R. CIV. P. 4(e)(2). 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 therefore be dismissed.

 
B. The Court cannot exercise jurisdiction over Defendants Clemmons and Brooks

 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 ...


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