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MARSHALL v. RENO

January 31, 1996

ROBERT GORDON MARSHALL, Plaintiff,
v.
JANET RENO, Attorney General; KATHLEEN HAWK, Director, Bureau of Prisons, Department of Justice; GERALD SHUR, Senior Associate Director, Office of Enforcement Operations, Department of Justice; GURNIA MICHAUX, Senior Associate Director, Office of Enforcement Operations, Department of Justice; J.W. TIPPY, Warden, FCI Ray Brook; JOHN BRUSH, Warden, FCI Oakdale; GARY HENMAN, Warden, FDC Oakdale; DORIS MEISNER, Commissioner, Immigration and Naturalization Service, Department of Justice; JOAN HIGGINS, Assistant Commissioner, Detention and Deportation, Immigration and Naturalization Service; JOHN CAPLINGER, District Director, New Orleans, Louisiana, Immigration and Naturalization Service; NANCY HOOKS, Immigration and Naturalization Service, Oakdale, Louisiana, Defendants



The opinion of the court was delivered by: RICHEY

 Before the Court in the above-captioned case is the defendants' Motion to Dismiss and the plaintiff's Opposition thereto. Upon careful consideration of the parties' pleadings, the entire record herein, and the applicable law, the Court shall grant the defendants' Motion.

 BACKGROUND

 The plaintiff, a Canadian citizen currently residing in Canada, asserts two sets of claims regarding his former incarceration in various federal facilities pursuant to a four-year sentence he received in the United States District Court for the Eastern District of New York. First, the defendant alleges that defendants Reno, Meisner, Higgins, Hawk, Caplinger, Hooks, Brush, and Henman conspired to deprive him of his civil rights by denying him access to various release programs available to United States citizens, and by failing to expeditiously deport him, thereby subjecting him to prison conditions harsher than those he would have faced in Canadian prisons. As relief therefor, the defendant seeks fifty thousand dollars in compensatory damages and fifty thousand dollars in punitive damages.

 Second, the plaintiff alleges that defendants Reno, Shur, Michaux, and Tippy conspired to arbitrarily deny him transfer to a Canadian prison pursuant to a treaty in effect between the United States and Canada, and to thereby deny him treatment equal to that afforded similarly situated inmates. *fn1" For this claim, the defendant seeks one hundred thousand dollars in compensatory damages and one hundred thousand dollars in punitive damages.

 DISCUSSION

 As a threshold matter, in light of his repeated invocation of Bivens v. Six Unknown Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971), it would appear that the plaintiff seeks to recover against the defendants in their individual capacities. However, the basis for the plaintiff's claims is unclear. He claims that the defendants violated his rights under the First, Fourth, Fifth, Eighth, Ninth, and Fourteenth Amendments, yet he fails to set forth any substantive discussion of a particular constitutional provision in support of his claims.

 Several of the Amendments are clearly inapplicable to the facts which the defendant posits. Given that he fails to identify any speech, religious, or associational interest allegedly impaired by the defendants' actions, the plaintiff fails to articulate a claim under the First Amendment. Similarly, the plaintiff does not allege that he has been subject to an unlawful search or seizure, or any other government action sufficient to trigger the protections of the Fourth Amendment. The plaintiff's invocation of the Ninth Amendment as a basis for recovery is particularly puzzling given that the Ninth Amendment does not set forth any particular guarantees, but is merely a rule of construction. And because the defendants are all federal officials, and the plaintiff does not allege that the alleged deprivations were accomplished under color of state law, the Fourteenth Amendment is also inapplicable. *fn2"

 The apparent basis of the plaintiff's claim under the Eighth Amendment is that the failure to either deport or transfer him to a Canadian prison was cruel and unusual because the defendants thereby subjected him to less humane conditions than he would have faced in the Canadian prison system. See Complaint, Civ. A. No. 95-1406, at 12. Notwithstanding the plaintiff's attempt to use the allegedly more progressive Canadian prison system as a stalking horse in order to satisfy the objective component of a cognizable Eighth Amendment claim, the Court finds his claim under the Eighth Amendment frivolous. So long as a sentence imposed is within the statutory limits, the mere execution thereof cannot form the basis of an Eighth Amendment claim. See Lustgarden v. Gunter, 966 F.2d 552, 555 (10th Cir. 1992); United States v. Gourley, 835 F.2d 249, 252-53 (10th Cir. 1987).

 However, in light of the plaintiff's pro se status, the Court shall liberally construe his Complaint as setting forth the only potentially cognizable constitutional claims: that the failure to either deport or transfer him to Canada, and to enroll him in a community corrections program or place him in a minimum security facility deprived him of his due process and equal protection rights under the Fifth Amendment. Still, the Court is unable to exercise jurisdiction over the nonresident defendants, the defendant fails to state a claim upon which relief can be granted, and the defendants are entitled to qualified immunity. Therefore, the Court shall grant the defendants' Motion to Dismiss.

 
I. The Court is unable to exercise jurisdiction over nonresident defendants Caplinger, Hooks, Brush, and Henman because they are not alleged to conduct any business or make any contracts in the District of Columbia, nor is any injury alleged to have been suffered in the District.

 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 of Columbia;
 
(3) causing tortious injury in the District of Columbia by an act or omission in the District of Columbia;
 
(4) causing tortious injury in the District of Columbia by an act or omission outside the District of Columbia if he [or she] regularly does or solicits business, [or] engages in any other persistent ...

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