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McIntyre v. Dist. of Columbia

June 14, 2010

ERROL MCINTYRE, PLAINTIFF,
v.
DISTRICT OF COLUMBIA ET AL., DEFENDANTS.



The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge

MEMORANDUM OPINION

Plaintiff Errol McIntyre, a federal prisoner and foreign national, is proceeding in forma pauperis and pro se in this suit under 42 U.S.C. § 1983. Seeking $15 million in damages, as well as declaratory and injunctive relief, he alleges that the defendants failed to inform him of his right to have his consular officer notified of his detention, in violation of Article 36 of the Vienna Convention on Consular Rights ("VCCR"). The matter is now before the Court on a motion to dismiss filed by the United States Department of Justice ("DOJ"). The motion will be granted and the case will be dismissed.

BACKGROUND

McIntyre alleges that he was never informed of his right to consular notification in connection with his arrest in 1988 by officers of the District of Columbia Metropolitan Police Department or the criminal and deportation proceedings that followed, and that he first learned of his consular notification rights in 2007. See Compl. at 5-6. He sued the District of Columbia, the DOJ, the "Immigration Service" - which the Court has construed to be the U.S. Immigration and Customs Enforcement ("ICE"), and Mark Rochen, his former defense counsel.

The District of Columbia filed a motion to dismiss, which the Court granted as conceded after McIntyre failed to submit a timely response as directed by the Court. See Order (Dec. 30, 2009). Similarly, ICE filed a motion to dismiss, which the Court granted as conceded after McIntyre did not file a response within the time allowed. See Order (June 11, 2010). In addition, Rochen never appeared in the case. Although McIntyre named Rochen as a defendant, he did not provide an address for service of the summons and complaint on him until the case had been pending for nearly six months. See Response to Order of the Court (Mar. 4, 2010). Because, as explained more fully below, there would have been no purpose for suing Rochen, the United States Marshal was not directed to effectuate service.

At this point, then, the only defendant before the Court is the DOJ. McIntyre asserts that the federal prosecutors handling his criminal case did not inform him of his right under Article 36 to consular notification. See Compl. at 5-6. Although he does not link any specific relief to any specific defendant, the relief he seeks specific to the DOJ is necessarily limited to declaratory relief and damages.*fn1

DISCUSSION

In its entirety, Article 36 of the Vienna Convention states:

"1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State:

"(a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State;

"(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph;

"(c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.

"2. The rights referred to in paragraph 1 of this Article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended."

Vienna Convention on Consular Relations, art. 36, Apr. 24, 1963, 21 U.S.T. 77, at 100-101. Whether Article 36 of the VCCR confers a judicially enforceable individual right upon foreign nationals arrested and detained in this country is a question that the Supreme Court has not yet decided. See Sanchez-Llamas v. Oregon, 548 U.S. 331, 343 (2006) ("[F]or the purposes of addressing petitioners' claims, we assume, without deciding that Article 36 does grant [petitioners] such rights."); but see id. at 371-78 (finding that Article 36 does confer a judicially enforceable individual right) (Breyer, Stevens, Souter and Ginsburg, JJ., dissenting). The Court of Appeals for the District of Columbia Circuit has not decided the issue, but other Circuits are split on the question. Compare Jogi v. Voges, 480 F.3d 822 (7th Cir. 2007) (finding a judicially enforceable individual right cognizable under § 1983) and Osagiede v. United States, 543 F.3d 399 (7th Cir. 2008) (reiterating that there is an individual right and finding that it can be raised in criminal proceedings), with Cornejo v. County of San Diego, 504 F.3d 853 (9th Cir. 2007) (concluding that ...


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