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Calhoun v. Mann

December 18, 2008

DAVID CALHOUN PLAINTIFF,
v.
KENYA MANN, JOEL GOLDSTEIN AND CYNTHIA DAUB, DEFENDANTS.



The opinion of the court was delivered by: Buckwalter, S. J.

MEMORANDUM

Presently before this Court is Defendants Kenya Mann and Joel Goldsteins' Motion to Dismiss Plaintiff David Calhoun's Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), and Defendant Cynthia Daub's Motion to Dismiss. For the reasons discussed below, both Motions are granted.

I. PROCEDURAL BACKGROUND

On January 30, 2008, Plaintiff filed a Motion to Proceed In Forma Pauperis, which was denied on February 4, 2008, without prejudice, and with the caveat that the Motion could be reinstated should Plaintiff pay the filing fee. On February 15, 2008, Plaintiff provided notice that he wished to proceed with the suit, and leave to proceed in forma pauperis was granted on March 18, 2008. On March 14, 2008, a Notice of Appearance was entered on behalf of Defendants Mann and Goldstein.

Plaintiff filed a Complaint on March 18, 2008, and an Amended Complaint on June 16, 2008. Plaintiff filed a Motion to Amend Complaint on August 28, 2008, which was denied on September 17, 2008.

Defendants Mann and Goldstein filed a Motion to Dismiss on September 26, 2008 (AUSA Motion to Dismiss). Plaintiff, on October 6, 2008, filed a Motion for Extension of Time to respond to the AUSA Motion to Dismiss, which was granted on October 9, 2008. Plaintiff filed a Response on October 31, 2008. Defendants Mann and Goldstein filed a Reply to Plaintiff's Response on November 17, 2008.

On November 7, 2008, a Notice of Appearance was entered on behalf of Cynthia Daub. On November 24, 2008, Defendant Daub filed a Motion to Dismiss (Parole Board Motion to Dismiss) and Brief in Support of her Motion. Local Rule 7.1(g) provides a party with fourteen days to respond to a motion. Plaintiff's response was due on December 8, 2008. E.D. PA CIV. P. 7.1(g). Plaintiff has not responded. Given Plaintiff's failure to timely respond, this Court examines the Parole Board Motion to Dismiss on the merits. Plaintiff filed a Motion to Appoint Counsel on December 11, 2008.

II. FACTUAL BACKGROUND

A federal grand jury, on June 29, 2005, returned a nineteen count indictment charging Plaintiff with conspiracy to distribute more than five kilograms of cocaine, distribution of cocaine, and possession of cocaine with intent to distribute. (AUSA Mot. to Dismiss 2-3.) On April 20, 2006, a jury convicted Plaintiff "of a number of narcotics charges, including, inter alia, conspiracy to distribute more than five kilograms of cocaine," and was sentenced to a "20-year term of imprisonment and 10 years of supervised release." United States v. Calhoun, 276 Fed. Appx. 114, 115 (3d Cir. 2008). Plaintiff appealed the District Court's ruling to the Third Circuit asserting "claims of sufficiency of the evidence, trial court error, and prosecutorial misconduct." Id. at 116. On May 1, 2008, the Third Circuit found the claims of error to be without merit affirmed the judgments of the District Court. Id. at 120.

Plaintiff's present suit does not challenge his conviction, but rather seeks punitive and compensatory damages in excess of $75,000, plus costs and fees, due to his allegedly illegal detention at the federal detention center (FDC) in Philadelphia. (Am. Compl. at 3-4.) Plaintiff asserts claims under 42 U.S.C. §§ 1983 and 1985, as well as a Bivens action*fn1 stating that his Sixth, Fifth, and Fourteenth Amendment rights were violated by Defendants. (Id.)

Plaintiff was transferred to the FDC, in December 2005, from a Pennsylvania state prison in Houtzdale by writ of habeas corpus ad pro sequendum. Prior to transfer, he was not provided an extradition hearing nor did he receive a hearing upon his arrival at the FDC. (Amend. Compl. 4.) Plaintiff claims that he should have been released on February 23, 2006, as his state sentence expired at that time, and as he had posted bail on his federal sentence. (Id.) Plaintiff avers that "the issue of plaintiffs release should have been resolved, but instead evidence reveals that plaintiff was deliberately denied access to the information concerning his detention preventing him from challenging the issue to the appropriate authority responsible for his detention." (Id.) Further, "evidence reveals that the parties were working in peri delicto to assure plaintiff's deprivation of liberty." (Id.)

Plaintiff filed a formal request on February 24, 2006, to "determine detainer or release." (Id. at 3.) Two FDC staff, Mr. Kembel and Mr. Brito, interviewed Plaintiff, and another FDC employee, Ms. Bowright, followed up with him about his detention. (Id.) In March 2006, Mr. Briton and Mr. Kembel told Plaintiff that he was being held "for sentence." (Id.) Plaintiff never received a written response, but Ms. Bowright told him that she had spoken to Defendant Mann, "who assured her that plaintiff was being held by legal authority, but would not say how." (Id.) Case manager McGuiness "could not determine" the basis for Plaintiff's detention, telling him to contact his "appointed-counsel." (Id.) Plaintiff wrote "his attorney William Cannon to determine the nature of [his] detention and to fight the issue." (Id.) Mr. Cannon informed Plaintiff that he "was being held by Penn. Parole Board detainer," but Plaintiff asserts that "later the Commonwealth Court of Penn. would determine that such fact was no longer true at the time Mr. Cannon wrote the letter." (Id.) Plaintiff does not provide any details about the purported Commonwealth Court determination "that such fact was no longer true at the time Mr. Cannon wrote the letter." (Id.) Plaintiff's Response to the AUSA Motion to Dismiss provides, as an exhibit, Mr. Cannon's letter, which states in part,

In case I have not communicated this fact to you by the time you receive my letter it is not the Federal charges that are keeping you in custody. Because you were cooperating with the Government at one time they did not oppose you being given bail. However, you were on State parole at the time of the Federal indictment and it is the Pennsylvania State Parole Board that has placed a detainer against you which will remain in place until the Federal charges are resolved. (Def. Resp. to Mot. to Dismiss, Ex. 4.) (emphasis added)

Plaintiff asserts that the "Parole Board and Federal Courts" did not provide "notice of the nature of his detention because no hearing was had by either as required by law." (Id. at 3.) If he had been given a reason for this continued detention, Plaintiff states that "he would have taken the proper procedures . . . but he did not know what to argue nor which court to argue it because he did not know which authority held him." (Id.)

III. LEGAL STANDARDS

A. Standard For A Motion ...


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