The opinion of the court was delivered by: Reggie B. Walton United States District Judge
This matter is before the Court on defendants' motion to dismiss the complaint and plaintiff Russell Kaemmerling's motion for release on bond pending resolution of this action. For the reasons set forth below, the former motion will be granted and the latter will be denied.
Plaintiffs are federal prisoners whose prison sentences were imposed under the then mandatory United States Sentencing Guidelines ("Guidelines"). See Complaint ("Compl.") ¶¶ 1, 12-13. According to plaintiffs, their sentences are enhanced based on "conduct that was not charged and proven beyond a reasonable doubt." Id. ¶ 16. They allege that subsequent decisions of the United States Supreme Court have declared the Guidelines unconstitutional, and accordingly, "the sentences imposed pursuant to them are illegal." Id. ¶ 8. They further contend that their efforts to have these purported illegal sentences corrected are thwarted by the restrictive procedural bars set forth in the Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996).*fn1 See id. ¶¶ 18-19, 22-26. These restrictions, plaintiffs contend, not only deny them access to the courts but also deprive them of rights protected under the Privileges and Immunities Clause of the United States Constitution, and the First, Fourth, Fifth, and Sixth Amendments of the United States Constitution. See id. ¶¶ 3, 34, 36-37.
In addition, plaintiffs allege that defendants Sensenbrenner and Apperson engaged in a conspiracy to violate plaintiffs' rights by "interfering in the process of court action through intimidation." Compl. ¶ 74. Overt acts allegedly perpetuated in furtherance of this conspiracy include a letter defendant Sensenbrenner wrote to a court in an effort "to influence the court in U.S. v. Rivera, 411 F.3d 864 (7th Cir. 2005)." Id. ¶ 76. Lastly, plaintiffs allege that defendants Alberto Gonzales and a component of the United States Department of Justice, the Executive Office for United States Attorneys, "fail[ed] to prevent the above-stated conspiracy." Id. ¶ 79.
Plaintiffs purport to bring this civil rights action under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), on behalf of a class of similarly situated prisoners, Compl. ¶¶ 82-85, and they demand monetary damages, and "all other relief, legal and equitable, this Court deems appropriate and just." Id. ¶ 95.
Defendants move for dismissal of plaintiffs' Complaint on three grounds: (1) that the Court lacks subject matter jurisdiction, (2) that service of process is insufficient, and (3) that the complaint fails to state a claim upon which relief may be granted. See Memorandum of Points and Authorities in Support of Defendants' Motion to Dismiss Plaintiffs' Complaint ("Defs.' Mem.") at 5.
A. Service of Process on Defendants in their Individual Capacities
Defendants move for their dismissal from the case on the claims filed against them in their individual capacities for plaintiffs' failure to effect service properly. See Defs.' Mem. at 14-16. The Federal Rules of Civil Procedure require that in an action brought in this district, service of process on an employee or officer of the United States sued in his or her official capacity be effected by serving both the United States Attorney for the District of Columbia and the Attorney General of the United States as prescribed by Rule 4(i)(1), and also by serving the employee or officer by sending him or her a copy of the summons and complaint by registered or certified mail as prescribed by Rule 4(i)(2). However, service on a federal government employee sued in his or her individual capacity requires personal service. See Fed. R. Civ. P. 4(e), (i)(2)(B); Simpkins v. District of Columbia Gov't, 108 F.3d 366, 369 (D.C. Cir. 1997) (holding that defendants in Bivens actions must be served as individuals pursuant to Rule 4(e)). Personal service may be effected "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." Fed. R. Civ. P. 4(e)(2). Alternatively, personal service can be achieved in accordance with District of Columbia law. Fed. R. Civ. P. 4(e)(1). District of Columbia law allows service of process on an individual by mail in the manner specified by the District of Columbia Code. D.C. Code § 13-431 (1981) (authorizing service outside the District of Columbia "by any form of mail addressed to the person to be served and requiring a signed receipt"); Super. Ct. Civ. R. 4(e)(2) (allowing service of process on individual defendants by first class, certified, or registered mail). Plaintiffs carry the burden of establishing that they properly effected service on all the defendants in their individual capacities pursuant to Rule 4(e). Light v. Wolf, 816 F.2d 746, 751 (D.C. Cir. 1987).
Plaintiffs represent that they served each defendant at his or her office by certified mail, return receipt requested. See Plaintiffs' Motion to Take Judicial Notice of Facts and Motion to Enlarge Time to Serve Defendants ¶¶ 9, 12; Plaintiffs' Request for Entry of Default, Ex. A (certified mail return receipts).*fn2 In their view, service by mail is proper because it complies with District of Columbia law, and, thus, they "properly served Defendants, individually, at their place of employment." Memorandum of Points and Authorities in Support of Plaintiffs' Opposition to Defendants' Motion to Dismiss ("Pls.' Opp'n") ¶ 16. Plaintiffs argue in the alternative that because counsel is "duly authorized by the Department of Justice to represent Defendants individually, Defendants effectively now concede that they have been served in their individual capacity." Id. ¶ 17. These arguments are without merit.
Service by mail is a permissible means by which to effect personal service on defendants in the manner specified by the District of Columbia Code. Fed. R. Civ. P. 4(e)(1). Thus, the fact that the summonses and complaints were mailed to the defendants, whether to their residence or office addresses, does not constitute personal service unless achieved in the manner prescribed by District of Columbia law. And, plaintiffs cannot rely on defendants' actual notice of this litigation to satisfy the service of process requirements under Rule 4. Mid-Continent Wood Prods., Inc. v. Harris, 936 F.2d 297, 301 (7th Cir. 1991) (citing Way v. Mueller Brass Co., 840 F.2d 303, 306 (5th Cir. 1988)); Whitehead v. CBS/Viacom, Inc., 221 F.R.D. 1, 3 (D.D.C. 2004) (actual notice of suit cannot cure defective service of process). "If service is not properly made, the court has no jurisdiction to render a personal judgment against a defendant." Moskovits v. Drug Enforcement Admin., 774 F. Supp. 649, 652 (D.D.C. 1991) (citing Sieg v. Karnes, 693 F.2d 803, 807 (8th Cir. 1982)). The fact that defendants are represented by counsel from the United States Department of Justice amounts to neither a waiver of service nor a concession that plaintiffs properly effected service of process. Defendants' motion is filed on behalf of them in their official capacities only, and they expressly preserve any defenses available to them, including a challenge to the sufficiency of service of process upon them in their individual capacities. Defendants' Reply in Support of Defendants' Motion to Dismiss ("Defs.' Reply") at 2 n.5. Accordingly, the Court will grant the defendants' Motion to Dismiss on the ground that service of process on them in their individual capacities has not been effected properly.
B. Judicial, Prosecutorial, and Legislative Immunity
Defendants argue that they are absolutely immune from suit under the doctrine of judicial, prosecutorial, or legislative ...