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Rommy v. Friedman

United States District Court, N.D. West Virginia, Martinsburg

January 31, 2018

HENK ORLANDO ROMMY, Plaintiff,
v.
JUDITH FRIEDMAN, Senior Trial Attorney, United States Department of Justice; and PAULA A. WOLFF, International Prisoner Transfer Unit, United States Department of Justice, Defendants.

          REPORT AND RECOMMENDATION

          MICHAEL JOHN ALOI, UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         On 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. § 1915A.

         II. FACTUAL AND PROCEDURAL HISTORY

         A. Underlying Criminal Conviction in the Southern District of New York case number 1:02-CR-994.

         On July 25, 2002, Plaintiff was indicted in the Southern District of New York. ECF No. 1[1]. A superseding indictment[2] 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.

         On 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. 55.

         B. The Extradition Proceedings

         On June 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. 1[3]. 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[4] 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 No. 3.

         On 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.

         On 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.

         C. Other Proceedings

         On 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.

         On 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.

         D. The Instant Complaint in 3:17-CV-6.

         Plaintiff 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.

         The complaint alleges a single ground for relief: that on various dates from February 2008 through August 2016[5], 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.

         More 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.

         On May 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. 28.[6]

         On 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[7] 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.

         On 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. 43.

         III. Standard of Review

         A. Pro Se Litigants

         Because 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.

         Courts 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)[8] 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.

         B. Motions to Dismiss

         Federal 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 45-46.

         Plaintiff 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.

         “[O]nly 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. at 678.

         “A 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.

         IV. Analysis

         A. Plaintiff Failed to Serve Process Pursuant to the Federal Rules of Civil Procedure

         Defendants 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 Individually. 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 ...

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