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December 29, 1982

B. CIVILETTI, Attorney General of the United States NORMAN A. CARLSON, Director of the Federal Bureau of Prisons for the United States

The opinion of the court was delivered by: LUONGO


 Plaintiff, William McKnight, a federal prisoner, filed this pro se action alleging a direct cause of action under the Fourth, Fifth, Sixth and Eighth Amendments to the Constitution. Defendants, sued individually and in their official capacity, are Benjamin Civiletti, former Attorney General of the United States, and Norman Carlson, Director of the Federal Bureau of Prisons. Defendants move to dismiss under Fed.R.Civ.P. 12(b) on the grounds that: (1) service of process was improper; (2) personal jurisdiction over defendants in their individual capacities is lacking; (3) plaintiff has failed to state a claim upon which relief can be granted; and (4) the action should be dismissed as frivolous under 28 U.S.C. § 1915(d). For reasons hereafter stated, defendants' motion to dismiss will be granted.

 On March 28, 1977, after pleading guilty to charges of violating the federal narcotics laws, McKnight was sentenced by another judge of this court to a 30-year term of imprisonment. McKnight's present claim is that the sentence was imposed in violation of his constitutional rights because (1) the federal authorities did not then have lawful jurisdiction over him, and (2) the sentence was imposed on charges brought against him as part of an unlawful selective prosecution.

 The factual basis for McKnight's claim is as follows. On July 25, 1974, following a search of his home by members of the Philadelphia Police Department, McKnight was arrested and charged with receiving stolen goods and violating state narcotics laws. Pursuant to a plea agreement between himself and the Commonwealth, the drug charges were dropped and McKnight pled guilty to the charge of receiving stolen goods. On September 24, 1974, McKnight was sentenced to a 3-year term of probation.

 On December 13, 1974, McKnight's home was again searched by members of the Philadelphia Police Department. The officers discovered narcotics and also seized personal property which McKnight alleges belonged to him. McKnight and his wife were then indicted by state authorities on drug charges. On December 18, 1974, Mrs. McKnight entered a plea of guilty and was sentenced to a one-year term of probation. The indictment against McKnight was dismissed on March 15, 1977, on the ground that his right to a speedy trial had been violated.

 Federal agents did not participate in either the July or December 1974 searches of McKnight's home. However, based on the narcotics discovered during those searches, McKnight was indicted by the United States on or about March 7, 1975 for violating federal narcotics laws. McKnight entered a plea of guilty and, as was mentioned earlier, was sentenced to imprisonment for a term of 30 years.

 McKnight first claims that the federal government never had jurisdiction to pass judgment over him on the narcotics charges because he was already under the jurisdiction of the Commonwealth of Pennsylvania for the same underlying offense and, indeed, was serving a 3-year term of probation for that offense. In addition, he argues that the federal indictment, to the extent that it was based upon the drugs discovered during the July 1974 search, constituted an unlawful interference into the sovereignty of the Commonwealth, since state authorities had previously agreed to dismiss their drug charges based on the fruits of the July search in return for McKnight's plea of guilty to the charge of receiving stolen goods. In other words, McKnight contends that the federal government wrongfully refused to honor the plea agreement between the Commonwealth and himself.

 Second, McKnight claims that he was subjected to discriminatory or selective prosecution because the federal government chose to prosecute him but not his wife. Finally, he alleges that no return has been made of the personal property taken from him during the July and December 1974 searches of his home by state authorities.

 In sum, McKnight alleges that he has been deprived of his constitutional rights to liberty and property without due process of law, and denied the equal protection of the laws. *fn1" He seeks a declaration that his rights have been violated, injunctive relief, $1,000,000 in compensatory damages, and $4,000,000 in punitive damages.

 McKnight's claims against defendants in their official capacities must be dismissed for lack of subject matter jurisdiction. It is well settled that an action seeking specific relief from a party in his official capacity is, in essence, a suit against the sovereign of which the officer is an agent. Familias Unidas v. Briscoe, 619 F.2d 391, 403 (5th Cir. 1980). Estate of Watson v. Blumenthal, 586 F.2d 925, 929 (2d Cir. 1978). Absent a waiver of that immunity, the action is not maintainable. See Jaffee v. United States, 592 F.2d 712, 718 (3d Cir.), cert. denied, 441 U.S. 961, 60 L. Ed. 2d 1066, 99 S. Ct. 2406 (1979). The doctrine of sovereign immunity should not be unfamiliar to McKnight. In another of his civil rights suits against these same defendants, I held that his claims against Carlson and Civiletti in their official capacities were barred by sovereign immunity. Although the claims asserted in the earlier action are different from those alleged in the instant case, my reason for dismissing the former claims applies equally here.

Here, I am persuaded that McKnight's suit is in effect one against the United States. McKnight seeks a declaration that the defendants' conduct was unconstitutional; injunctive relief prohibiting future violations of his rights; and damages. The defendants personally had no involvement with the incidents of which McKnight complains, and it is clear that if the present defendants left office, McKnight would have to continue his suit against their successors, and that he would look to the United States to satisfy any judgment entered. In short, the defendants are named in their capacity as representatives of the United States, Monell [ v. Department of Social Services, 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978)], and therefore the doctrine of sovereign immunity is at issue.
. . . . Nor is the barrier to McKnight's suit posed by sovereign immunity lessened by the fact that in part he seeks prospective equitable relief. Although, for purposes of Eleventh Amendment immunity in suits against the states, a claimant is not barred to the extent that he seeks equitable relief as opposed to damages, Quern v. Jordan, 440 U.S. 332, 99 S. Ct. 1139, 59 L. Ed. 2d 358 (1979), in a suit against the United States, under the common law doctrine of sovereign immunity, "unless sovereign immunity has been waived, it bars equitable as well as legal remedies against the United States." Jaffee, supra, 592 F.2d at 717 n.10.
McKnight has not cited any statutory provisions in which the United States has waived its immunity against suits such as the instant one. McKnight may, as the government contends, only be able to overcome the obstacle of sovereign immunity by bringing suit under the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq. Assuming, however, that McKnight's allegations do state a claim under the Tort Claims Act, I lack jurisdiction over them, for McKnight has failed to satisfy the jurisdictional prerequisite that he seek administrative adjustment of his claim before ...

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