United States District Court, N.D. West Virginia, Martinsburg
REPORT AND RECOMMENDATION
MICHAEL JOHN ALOI, UNITED STATES MAGISTRATE JUDGE
January 1, 2017, the pro se Plaintiff, who was then
a federal prisoner incarcerated at FCI Gilmer in Glenville,
West Virginia, initiated this case by filing an action
pursuant to Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971), claiming a due
process violation, unspecified “discrimination”,
and a violation of his Eighth Amendment rights. ECF No. 1.
Plaintiff paid the $400.00 filing fee in its entirety on
February 14, 2017. ECF No. 11. On March 8, 2017, the Court
granted Plaintiff's motion [ECF No. 12] to amend his
complaint. ECF No. 13. On May 17, 2017, Plaintiff filed an
Amended Complaint which modified the named defendants, but in
the “Statement of Claim”, “Injury”
and “Relief” sections referred to the original
complaint. ECF No. 18 at 2, 7, 9. This matter is pending
before the undersigned for an initial review and Report and
Recommendation pursuant to LR PL P 2 and 28 U.S.C. §
FACTUAL AND PROCEDURAL HISTORY
Underlying Criminal Conviction in the Southern District of
New York case number 1:02-CR-994.
25, 2002, Plaintiff was indicted in the Southern District of
New York. ECF No. 1. A superseding indictment was returned on
November 18, 2003. ECF No. 5. On September 30, 2005, a jury
returned a verdict of guilty as to Count 1 of the superseding
indictment. On January 26, 2006, the Court sentenced
Plaintiff to 240 months of imprisonment, followed by three
years of supervised release, and ordered the forfeiture of
one million dollars ($1, 000, 000.00). ECF No. 44. On
November 26, 2007, the United States Court of Appeals for the
Second Circuit affirmed the judgment of the District Court.
ECF No. 50.
August 31, 2010, the District Court entered a Memorandum
Order which denied Plaintiff's motion for a new trial.
ECF No. 53. On September 8, 2010, Plaintiff appealed the
denial of his motion for a new trial. ECF No. 54. On July 20,
2012, the United States Court of Appeals for the Second
Circuit affirmed the judgment of the District Court. ECF No.
The Extradition Proceedings
10, 2015, an Assistant United States Attorney filed a
“Complaint for Arrest with a View Towards Extradition
(18 U.S.C. § 3184)” in the United States District
Court for the Northern District of West Virginia. ECF No.
The Complaint alleged that in fulfilling its obligations
under the Extradition Treaty and Extradition Agreement in
force between the United States and the Netherlands, the
United States sought an arrest warrant for Plaintiff so that
he could be extradited to the Netherlands to face pending
charges there. ECF No. 1. On the same date of the
filing of the complaint, the Government filed a Request for
Extradition from the District Court of Amsterdam regarding
Plaintiff who was “suspected of incitement to the
murder of Henie Shamel and Anne de Witte during the night of
8 May 1993 in Antwerp, Belgium.” ECF No. 4 at 2. On
June 10, 2015, the presiding Magistrate Judge issued an
arrest warrant for Plaintiff based upon the complaint. ECF
August 14, 2015, the Court entered an Order regarding the
extradition of Plaintiff. ECF No. 14. An Amended Order was
entered on August 31, 2015. ECF No. 16. A Second Amended
Order was entered on September 22, 2015. ECF No. 18. The
Second Amended Order directs that:
[T]he United States Marshal for the Northern District of West
Virginia shall deliver to the duly authorized representatives
of the Government of the Netherlands the person of Henk
Orlando Rommy for the purpose of transporting the said Henk
Orlando Rommy from this District to the Territory of the
Netherlands, and it is further ORDERED that, upon completion
of his undischarged term of imprisonment in the custody of
the United States Bureau of Prisons, or as otherwise may be
agreed upon, the transfer of physical custody of the said
Henk Orlando Rommy shall be at such time and place as
mutually agreed upon. . .
ECF No. 18 at 1 - 2.
September 1, 2016, the Court entered a “Certification
of Extradition and Order of Commitment” which noted
that Plaintiff “consented to remain in custody pending
the arrival of agents from the requesting state to effect his
transfer”. ECF No. 19 at 1. Among other findings, the
Court found that: Plaintiff “has stipulated that there
is probable cause to believe that he committed the offenses
for which extradition is sought”, those being for trial
for incitement to commit murder and to serve the remainder of
the sentence imposed as to two drug trafficking offenses.
Id. at 2, ¶¶ 4, 6, 7. The Court also found
that “Counsel for Henk Orlando Rommy has reviewed this
Order with the Assistant United States Attorney and has no
objection to its entry.” Id. at 3, ¶ 8.
In the Certification, the Court again ordered that
“upon completion of his undischarged term of
imprisonment in the custody of the United States Bureau of
Prisons, or as otherwise may be agree upon, Henk Orlando
Rommy . . . . will be transferred to the custody of the
requesting state . . . of the Netherlands to be transported
to the Netherlands.” Id. at 3.
February 1, 2016, Plaintiff filed a petition for habeas
corpus pursuant to 28 U.S.C. § 2241 in the Northern
District of West Virginia, case number 3:16-CV-13, wherein
Plaintiff claimed he was being “denied his rights to be
extr[a]dited back to [the Netherlands] to face accessory to
murder charges - violating his VI amendment rights of speedy
trial [and] due process.” Civil action 3:16-CV-13 was
dismissed on March 1, 2016.
February 19, 2016, Plaintiff filed a petition for habeas
corpus pursuant to 28 U.S.C. § 2241 in the Northern
District of West Virginia, case number 1:16-CV-27, wherein
Plaintiff which raised the same grounds as those raised in
3:16-CV-13. Civil action 1:16-CV-27 was dismissed without
prejudice on March 24, 2016, upon Rommy's motion.
The Instant Complaint in 3:17-CV-6.
filed the instant initial complaint on January 18, 2017 and
amended complaint on May 17, 2017. Although Plaintiff filed
his initial complaint on the court-approved form, in the
section entitled “Statement of Claim: Claim 1” he
requests the court “SEE ATTACHED COMPLAINT”,
which is comprised of a ten page typed complaint and
attestation. ECF Nos. 1 at 8, 1-1. In the “Statement of
Claim: Claim 1” section of the amended complaint,
Plaintiff requests the court “see; original
complaint”. ECF No. 18 at 7. Because the amended
complaint appears to have been filed merely to clarify the
parties, references to “the complaint” herein
include both the initial complaint and the amended complaint.
complaint alleges a single ground for relief: that on various
dates from February 2008 through August 2016, Defendants
conspired to retaliate against Plaintiff in violation of the
First, Fifth, Eighth and Fourteenth Amendments, by their
denial of his request to be extradited to his country of
citizenship, the Netherlands, pursuant to the applicable
extradition treaty. ECF No. 1-1 at 3. Plaintiff asserts that
Defendants conspired to retaliate against and punish him
because “Plaintiff had on numerous occas[ions]
challenged and filed petition[s] against . . . the Bureau of
Prisons and Department of Justice, and . . . sought redress
of his grievances . . . [in] Court. . . [and] contacted
members of [ ] Congress.” Id. at 3 - 4.
specifically, Plaintiff alleges that Defendant Friedman
(“Friedman”) used the “Department of
Justice political and judicial powers” to prolong and
delay his extradition. Id. at 6. Plaintiff claims
that Friedman first provided “inadequate and incorrect
information” to the Court in order to delay his
extradition in August 2015. Id. Plaintiff further
alleges that Friedman made “a second attempt to prolong
and delay” his extradition by providing additional
inadequate and incorrect information to the Court
“suggesting that the Netherlands legal process is much
different that the legal process in the United States. . .
.” Id. at 6 - 7. Plaintiff alleges that
Friedman knowingly provided incorrect information to the
Court that Plaintiff had counsel, while Plaintiff insisted he
did not have counsel. Id. at 7. Finally, Plaintiff
alleged that Friedman and Defendant Wolff
(“Wolff”) committed perjury or arranged for the
submission of perjured testimony related to his extradition.
Id. Plaintiff asserted that he “lost his
natural rest and sleep, suffered pain and emotional trauma,
depression, anxiety, and apprehension. . . all to his great
damage.” Id. at 8.
17, 2017, the Clerk issued sealed summonses for Defendant to
serve, which summonses were sent to Plaintiff via certified
mail. ECF No. 19. On May 23, 2017, Plaintiff's notice of
change of address to FCI Raybrook in Raybrook, New York was
filed. ECF No. 20. On May 30, 2017, the return receipt [ECF
No. 19] for the summonses was filed, reflecting that the same
was initially sent to Plaintiff at FCI Gilmer, but signed as
received by “B. Stucky” on May 26, 2017 in
Oklahoma City, Oklahoma. ECF No. 23. On June 16, 2017,
Plaintiff's notice of change of address to FCI
Victorville in Adelanto, California, was filed. ECF No.
September 5, 2017, Plaintiff filed a “Motion to Verify
Service of Summons in a Civil Action”. ECF No. 31.
Therein Plaintiff asserts that he did not timely receive the
Court's May 17, 2017 order [ECF No. 17] which advised
Plaintiff of his responsibility to serve process upon the
defendants consistent with Rule 4(m) of the Federal Rules of
Civil Procedure. ECF Id. at 1. Plaintiff asserted in
his motion that he did not timely receive the Court's
Order because “Plaintiff's legal mail was initially
sent to FCI Gilmore. It was then forwarded to Oklahoma
Transfer Center . . . prior to him receiving the mail [ ] at
FCI Victorville.” Id. at 1 - 2. As exhibits to
this motion, Plaintiff attached what purport to be executed
Proofs of Service. ECF No. 31-1 at 3, 5, 7. The Proof of
Service for Helen Altmeyer was executed on July 26, 2017. ECF No.
31-1 at 3. The Proofs of Service for Wolff and Friedman were
executed on July 12, 2017. ECF No. 31-1 at 5, 7.
September 11, 2017, Defendant Friedman
(“Friedman”) filed a motion to dismiss and
accompanying memorandum of law in support thereof. ECF Nos.
32, 33. On that same date, Defendant Wolff
(“Wolff”) filed a motion to dismiss and
accompanying memorandum of law in support thereof. ECF Nos.
34, 35. The Court issued a Roseboro notice on September 12,
2017. ECF No. 36. On October 6, 2017, Plaintiff requested and
on October 10, 2017, was granted an extension of time to
respond to the motions to dismiss. ECF Nos. 39, 40. On
November 3, 2017, Plaintiff filed his response. ECF No. 42.
On November 13, 2017, Defendants filed their reply. ECF No.
Standard of Review
Pro Se Litigants
Petitioner is a prisoner seeking redress from a governmental
entity or employee, the Court must review the complaint to
determine whether it is frivolous or malicious. Pursuant to
28 U.S.C. § 1915A(b), the Court is required to perform a
judicial review of certain suits brought by prisoners and
must dismiss a case at any time if the Court determines that
the complaint is frivolous, malicious, fails to state a claim
upon which relief can be granted, or seeks monetary relief
against a defendant who is immune from such relief.
must read pro se allegations in a liberal fashion.
Haines v. Kerner, 404 U.S. 519, 520 (1972). However,
a complaint is frivolous if it is without arguable merit
either in law or in fact. Neitzke v. Williams, 490
U.S. 319, 325 (1989) (superseded by statute). The Supreme
Court in Neitzke recognized that:
Section 1915(d) is designed largely to discourage the
filing of, and waste of judicial and private resources upon,
baseless lawsuits that paying litigants generally do not
initiate because of the costs of bringing suit and because of
the threat of sanctions for bringing vexatious suits under
Federal Rule of Civil Procedure 11. To this end, the statute
accords judges not only the authority to dismiss a claim
based on an indisputably meritless legal theory, but also the
unusual power to pierce the veil of the complaint's
factual allegations and dismiss those claims whose factual
contentions are clearly baseless. Examples of the former
class are claims against which it is clear that the
defendants are immune from suit. . .
490 U.S. at 327.
Motions to Dismiss
Rule of Civil Procedure 12(b)(6) permits dismissal of a case
when a complaint fails to state a claim upon which relief can
be granted. The Federal Rules of Civil Procedure require
only, “‘a short and plain statement of the claim
showing that the pleader is entitled to relief, ' in
order to ‘give the defendant fair notice of what the
... claim is and the grounds upon which it rests.'”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007) (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957)). Courts long have cited, “the accepted rule
that a complaint should not be dismissed for failure to state
a claim unless it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would
entitle him to relief.” Conley, 355 U.S. at
is proceeding pro se and therefore the Court must
liberally construe her pleadings. Estelle v. Gamble,
429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S.
519, 520 - 1 (1972) (per curiam); Erickson v.
Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197 (2007). Although
a complaint need not contain detailed factual allegations, a
plaintiff's obligation in pleading, “requires more
than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do....”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007). Accordingly, “[f]actual allegations must be
enough to raise a right to relief above the speculative
level, ” to one that is “plausible on its
face.” Id. at 555, 570. In Twombly,
the Supreme Court found that, “because the plaintiffs [
] have not nudged their claims across the line from
conceivable to plausible, their complaint must be
dismissed.” Id. at 570. Thus, to
survive a motion to dismiss, a plaintiff must state a
plausible claim in his complaint which is based on cognizable
legal authority and includes more than conclusory or
speculative factual allegations.
a complaint that states a plausible claim for relief survives
a motion to dismiss.” Ashcroft v. Iqbal, 556
U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Thus,
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice, ” because courts are not bound to accept as
true a legal conclusion couched as a factual allegation.
Id. at 678. “[D]etermining whether a complaint
states a plausible claim . . . [is] a context-specific task
that requires the reviewing court to draw on its judicial
experience and common sense.” Id. at 679.
Thus, a well-pleaded complaint must offer more than, “a
sheer possibility that a defendant has acted unlawfully,
” in order to meet the plausibility standard and
survive dismissal for failure to state a claim. Id.
motion to dismiss under Rule 12(b)(6) tests the sufficiency
of a complaint; importantly, it does not resolve contests
surrounding facts, the merits of a claim, or the
applicability of defenses.” Republican Party of
North Carolina v. Martin, 980 F.2d 943, 952 (4th Cir.
1992) (citing 5A Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 1356 (1990)).
In considering a motion to dismiss for failure to state a
claim, a plaintiff's well-pleaded allegations are taken
as true and the complaint is viewed in the light most
favorable to the plaintiff. Mylan Labs, Inc. v.
Matkari, 7 F.3d1130, 1134 (4th Cir. 1993); see also
Martin, 980 F.2d at 952.
Plaintiff Failed to Serve Process Pursuant to the Federal
Rules of Civil Procedure
are attorneys with the United States Department of Justice.
ECF Nos. 18 at 2, 33-1 at 2, 35-1 at 2. Accordingly,
Plaintiff was required to serve Defendants pursuant to
Federal Rule of Civil Procedure 4(i)(3) which provides:
Officer or Employee Sued
To serve a United States officer
or employee sued in an individual capacity for an act or
omission occurring in connection with duties performed on the
United States' behalf (whether or not the officer or
employee is also sued in an official capacity), a party must
serve the United ...