The opinion of the court was delivered by: SHAPIRO
Before the court in this civil rights action are motions of defendants Phillip Checchia and James Alexander for summary judgment and plaintiff's motion for permissive joinder. For the reasons now stated, defendants' motion is granted and plaintiff's motion is denied as moot.
On June 6, 1986, plaintiff filed this action pro se and requested leave to proceed in forma pauperis. On October 28, 1986, the court granted plaintiff leave to proceed in forma pauperis, dismissed certain of his claims as frivolous, and ordered that his non-frivolous claims could proceed.
Two claims remain. Plaintiff asserts a claim under 42 U.S.C.A. § 1983 (West 1981 & Supp.) against defendants Checchia and Alexander for coercing a confession. Plaintiff also asserts a claim under 42 U.S.C.A. § 1983 (West 1981 & Supp. 1987) against defendants Checchia, Alexander, and Chief Deputy Sheriff Stynchombe for improper extradition from Georgia to Pennsylvania in violation of the Uniform Criminal Extradition Act. Ga. Code An. §§ 17-13-1 -- 17-13-49 (1982). The complaint must be dismissed against defendant Stynchombe without prejudice for failure to make service within 120 days. See Order dated March 26, 1987; see also Lovelace v. Acme Markets, 820 F.2d 81 (3d Cir. 1987); Fed.R. Civ.P. 4(j).
Defendants Checchia and Alexander moved for summary judgment in accordance with Fed.R.Civ.P. 56(b) on March 2, 1987. On April 13, 1987, counsel was appointed to represent plaintiff. Plaintiff, through his attorneys, responded to the motion for summary judgment on June 1, 1987. Summary judgment is proper:
If the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(c); see Anderson v. Liberty Lobby, 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).
Plaintiff alleges that he "was extradited illegally from Georgia to Pennsylvania without compulsory due process requisites, including Governors warrant, and evidentiary hearing of any kind." Plaintiff's Complaint at 4. Defendants Checchia and Alexander move for summary judgment on this claim on two grounds. First, they argue they relied in good faith on a teletype message from the Fulton County Sheriff's Office that Crenshaw had waived extradition, and on a telephone conversation confirming that message. Second, they argue that plaintiff has failed to state a claim against them under § 1983 for improper extradition because they had no duty to ensure that Georgia officials complied with their extradition procedures.
Allegations that state and/or federal extradition statutes have been violated may state a claim under 42 U.S.C.A. § 1983 (West 1981 & Supp. 1987). See Draper v. Coombs, 792 F.2d 915, 919-21 (9th Cir. 1986); Shack v. Attorney General, 776 F.2d 1170, 1173 (3d Cir. 1985), cert. denied, 475 U.S. 1030, 106 S. Ct. 1234, 89 L. Ed. 2d 342 (1986). A plaintiff may be able to recover nominal damages even if he suffered no actual damages. See Draper, 792 F.2d at 921-22. However, plaintiff may recover only from those persons who deprived him of his right to procedural due process before extradition. See McBride v. Soos, 679 F.2d 1223, 1227-28 (7th Cir. 1982).
Since this suit was instituted, the Supreme Court has on two occasions emphasized the mandatory nature of extradition and the limited scope of "pre-extradition" proceedings. In California v. Superior Court, 482 U.S. 400, 107 S. Ct. 2433, 96 L. Ed. 2d 332 (1987), the Supreme Court held that under the Extradition Clause of the United States Constitution, Art. IV, § 2, Cl. 2, and the Extradition Act of 1793, 18 U.S.C.A. § 3182 (West 1985), the asylum state (here Georgia) must deliver a fugitive to the demanding state's agent (here Pennsylvania) if a properly certified indictment or affidavit charging a crime is lodged against the fugitive. Id. at 7. At a pre-extradition hearing, the asylum state may do no more than ascertain whether the requisites of the Extradition Act have been met; the asylum state may make only four inquiries:
(a) whether the extradition documents on their face are in order; (b) whether the petitioner has been charged with a crime in the demanding state; (c) whether the petitioner is the person named in the request for extradition; and (d) whether the petitioner is a fugitive.
Id. (quoting Michigan v. Doran, 439 U.S. 282, 289, 58 L. Ed. 2d 521, 99 S. Ct. 530 (1978). In Puerto Rico v. Branstad, 483 U.S. 219, 107 S. Ct. 2802, 97 L. Ed. 2d 187 (1987), the Supreme Court overruling Kentucky v. Dennison, 65 U.S. (24 How.) 66, 16 L. Ed. 717 (1860), in part, reaffirmed that the Extradition Clause's commands are mandatory and afford no discretion to executive officers of the asylum state. Slip Op. at p. 7.
Nowhere has the Supreme Court or the Court of Appeals for the Third Circuit suggested that the demanding state has an obligation to ensure that the asylum state has complied with pre-extradition proceedings. The Courts of Appeals for the Seventh and Eighth Circuits have held that the officials of the demanding state have no obligation to ensure that pre-extradition proceedings are proper. McBride v. Soos, 679 F.2d 1223, 1225 (7th Cir. 1982); Brown v. Nutsch, 619 F.2d 758, 765 (8th Cir. 1980); cf. Baker v. McCollan, 443 ...