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DANZY v. JOHNSON

August 4, 1976

JAMES E. DANZY
v.
ROBERT L. JOHNSON



The opinion of the court was delivered by: FOGEL

 FOGEL, J.

 Two questions are presented in this civil rights suit for a declaratory judgment:

 FIRST: Does the failure to notify a prison inmate of his statutory right to contest extradition to another state which seeks his removal for trial, violate the due process clause of the fourteenth amendment?

 SECOND: Does the denial to persons extradited under the Interstate Agreement on Detainers, 19 P.S. § 1431, of those procedural rights which are afforded to individuals who, at the election of the foreign state, are extradited under the Uniform Criminal Extradition Act, 19 P.S. § 191.1 et seq., violate the equal protection clause of the fourteenth amendment?

 The action is one for a declaratory judgment; thus we are empowered to hear the matter, and to rule upon the issue raised with respect to the constitutionality of the statutes involved, without empaneling a three-judge court pursuant to 28 U.S.C. §§ 2281 et seq. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 9 L. Ed. 2d 644, 83 S. Ct. 554 (1963). Under the facts of this case, however, we find it unnecessary to reach the significant legal questions presented, because the matter is moot. Our determination of mootness is grounded upon the undisputed facts as to petitioner's current status, and upon the nature of the relief sought. Accordingly, a recitation of the factual history of the case is a necessary step in order to establish the basis for our decision.

 I. HISTORY OF THE CASE AND STATEMENT OF THE FACTS

 Plaintiff, James E. Danzy, is an inmate of Graterford Correctional Institution in Pennsylvania. Defendant, Robert L. Johnson, was the Superintendent of the Institution at all times material to this complaint. As superintendent, Johnson was responsible for the operation of the institution, and for the welfare of all inmates who were incarcerated within Graterford.

 Plaintiff was not brought before any judge of a court of record of the Commonwealth of Pennsylvania. Had he been, then he would have had the opportunity to have the judge inform him of his right to counsel, and his right to challenge the legality of the request for custody. Inmates who are about to be released from custody, as well as those who have completed their sentence before a determination has been made with respect to extradition, are brought before judicial officers, and then informed of their procedural rights, if detainers have been lodged against them. The Uniform Criminal Extradition Act, 19 P.S. § 191.1 et seq., mandates that such procedural rights be accorded to individuals extradited under its provisions. Plaintiff, however, only learned of his procedural rights after he had been extradited to New Jersey, and put in the custody of the officials of that state.

 On June 19, 1972, plaintiff was turned over to the New Jersey officials, and thereafter was removed to Camden County jail to stand trial. Plaintiff subsequently pleaded guilty to three of six indictments. *fn1"

 He is now back at Graterford, serving the balance of his Pennsylvania sentence of approximately sixteen to thirty-six years. The sentences imposed in New Jersey are substantially shorter than the Pennsylvania sentence and are, with one exception, being served concurrently with his Pennsylvania sentence. *fn2"

 On January 16, 1974, plaintiff sought leave to proceed in forma pauperis against William Cahill, then Governor of New Jersey; Thomas Shusted, the Camden County Prosecutor; Mario Iavicoli, the First Assistant Prosecutor; two Camden County detectives; the Warden of the Camden County Jail; the Sergeant of the Guard of the Camden County Jail; and Robert Johnson, Superintendent of Graterford. That pro se complaint, filed under 42 U.S.C. §§ 1983 and 1985, alleged two clusters of constitutional violations. First, the due process and equal protection claims against Superintendent Johnson, related above. Second, an action against the New Jersey defendants based upon cruel and unusual punishment, physical injury, and denial of medical care, in connection with a riot which broke out in the Camden County Jail when Danzy was incarcerated there awaiting trial. Tying it all together was an allegation of conspiracy to deprive plaintiff of his constitutional rights. Danzy sought a declaratory judgment as to the Interstate Agreement on Detainers, and money damages for the civil rights violations.

 Leave to proceed in forma pauperis was granted on February 13, 1974, and the complaint was considered to have been filed as of that date. Counsel, a student from the University of Pennsylvania Law School, was appointed pursuant to Rule 9-1/2 of the Local Rules of Civil Procedure for the Eastern District of Pennsylvania. An answer was then filed by defendant Johnson. However, the defense of the New Jersey Defendants was unresolved for some time. When that matter was finally resolved, the student originally appointed was no longer able to represent Mr. Danzy, and another student was appointed in his stead.

 At the suggestion of the Court, in an effort to clarify and simplify the already voluminous record, and also to correct certain errors in the original pro se document, counsel submitted a Motion for Leave to File an Amended Complaint. This motion was granted on June 13, 1974. Thereafter several motions were filed by the various New Jersey defendants. These included overlapping motions to dismiss, transfer, and for summary judgment as to the various defendants. Defendant Johnson filed an answer alleging several affirmative defenses. The motion for summary judgment was withdrawn, and a Memorandum in Opposition to Defendants Motion to Dismiss or Transfer was filed. At the hearing to consider disposition of the Motion to Dismiss or Transfer, counsel for all parties agreed that the elements of the case were severable into issues which properly belonged in the Eastern District of Pennsylvania, and issues which, but for the allegations of conspiracy, belonged in the District of New Jersey. After counsel was obtained for plaintiff in New Jersey for the claims arising from the jail riot, it was stipulated that a Second Amended Complaint would be filed by all parties; it was further agreed that the claim of conspiracy would be dropped; that Counts II and III, (dealing with the jail riot and denial of medical treatment after the riot), would be transferred to the District of New Jersey, and that Count I, (dealing with the extradition issue), would be decided by this Court. *fn3" An Order embodying this agreement was signed on November 13, 1974.

 Thus, with the elimination of those issues, the parties were then able to agree that there were no factual disputes with respect to the remaining claims. Accordingly, it was determined that the matter be submitted on plaintiff's Motion for Summary Judgment, on the basis of a supporting affidavit from plaintiff, defendant's answers to interrogatories, a stipulation of facts, and memoranda from both parties. A stipulation to this effect was entered into on February 14, 1975, and time frames were established for briefing. Hence, the record, as it now exists, is ripe for adjudication.

 II. NATURE OF RELIEF SOUGHT

 We are faced at the outset with the necessity of examining the nature and scope of relief sought by plaintiff. That aspect of plaintiff's complaint which is before us (the due process and equal protection claims against Superintendent Johnson), alleges a cause of action arising under 42 U.S.C. § 1983; one which claims a violation of plaintiff's rights in connection with the manner in which the Interstate Agreement on Detainers was applied to him. This is not a class action. In fact, it appears that the only relief sought in the pleadings before us is a declaratory judgment to the effect that the Agreement on Detainers is unconstitutional. However, as part of our effort to clarify this issue, we wrote to Mr. Danzy to inquire whether the requested relief was so limited. By letter dated November 17, 1975, he affirmatively replied to the effect that he was seeking only a declaratory judgment. *fn4"

 A. Belated Damage Claim

 Parenthetically, we note that on January 15, 1976, a motion to amend the complaint to add a request for damages of $150.00, representing lost wages, while plaintiff was in New Jersey, was filed with the Court. Defendant Johnson objected to this motion for the following reasons: (1) the claim for damages was untenable because of plaintiff's previous representation that damages were not involved, a statement first made on March 22, 1974, and reiterated in the first and second amended complaints, which were filed on June 11, 1974, and November 14, 1974, respectively; (2) no prior complaint requested any relief, with respect to the constitutionality of the extradition statutes, other than a declaratory judgment; (3) counsel for both parties had entered into a stipulation on February 14, 1975, under which it was agreed that no evidentiary trial would be required; indeed, all facts contained in the record as then constituted were stipulated, and it was further agreed that all contested legal issues could be resolved by this Court solely on the basis of the plaintiff's motion for summary judgment; (4) plaintiff is bound by that stipulation; and (5) the allowance of such an amendment and the consequent necessary reopening of the entire matter at this stage would be prejudicial to defendant.

 Amendments to pleadings in the context of this request for a third revision of the complaint are governed by Rule 15(a) of the Federal Rules of Civil Procedure:

 
Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.

 Plaintiff has not suggested: (a) that any new facts have been developed, (b) that he was unsure of his legal rights, or (c) any other meritorious reason which would justify such an amendment. See Wealden Corp. v. Schwey, 482 F.2d 550 (5th Cir. 1973); Kirby v. P.R. Mallory & Co., 489 F.2d 904 (7th Cir. 1973), cert. denied, 417 U.S. 911, 41 L. Ed. 2d 215, 94 S. Ct. 2610 (1974).

 The core of plaintiff's argument in favor of the proposed amendment is his contention that the absence of a final determination on the merits justifies such an amendment in order to ensure that the Court reach the merits.

 We cannot agree with plaintiff. If there had been an issue of damages for lost wages, it would and should have surfaced long before this eleventh-hour attempt to have yet a third amendment to the original complaint. This motion to amend was presented twenty-four months after the initial complaint was filed, twenty-two months after counsel was appointed, and fourteen months after the second amended complaint was filed. It was filed, indeed, two months after we sought clarification, as a courtesy to plaintiff, of the particular scope of relief sought. In response to that request, we were advised in writing by plaintiff that he was not seeking any damages; indeed, he reiterated that declaratory relief alone was his goal; this was corroborated by his counsel. This is particularly significant for we are dealing not with a pro se complainant, but one who at all relevant times had been represented by counsel. The motion appears to be nothing more than an afterthought to avoid dismissal for mootness. Because it involves appending an entirely new and questionable aspect to the suit, because of the numerous opportunities in the past which plaintiff had, by invitation of the Court, to advance any new theories, which he failed to do, and ...


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