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Calhoun v. Mann

March 25, 2009

DAVID CALHOUN PLAINTIFF,
v.
KENYA MANN, JOEL GOLDSTEIN, UNITED STATES MARSHALS, AND LAWRENCE MURRAY DEFENDANTS.



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

MEMORANDUM

BUCKWALTER, S. J.

Presently before this Court is Plaintiff David Calhoun's Motion to Reinstate his Motions that were dismissed without prejudice by this Court on January 5, 2009. Also before this Court is a Motion for Leave to file a Motion to Dismiss Nunc Pro Tunc filed by Defendants Kenya Mann, Joel Goldstein, and the United States Marshals Service (Federal Defendants). For the reasons discussed below, Plaintiff's Motion to Reinstate is granted, but the reinstated Motions are dismissed. Also for the reasons discussed below, both Defendants' Motions for Leave and to Dismiss are granted.

I. PROCEDURAL BACKGROUND

Procedurally, this suit has followed a convoluted path. Further complicating matters is the fact that Mr. Calhoun filed a virtually identical suit in federal court (Federal Action) on January 30, 2008, which this Court dismissed, in part, in December 2008.*fn1 Plaintiff filed the present suit in Commonwealth Court in February 2008 (Commonwealth Action). Federal Defendants sought removal of the Commonwealth Action to federal court under 28 U.S.C. § 1442. (Doc. No. 1.) This Court granted Federal Defendants' Motion despite Mr. Calhoun's objections.*fn2 On October 6, 2008, Federal Defendants filed a Motion for Time Extension, and this Court provided until December 6, 2008, to reply to Mr. Calhoun's Praecipe. Federal Defendants submitted no filings until December 24, 2008.

Mr. Calhoun filed a Notice of Appeal. (Doc. No. 9.) The same day, Federal Defendants filed a Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6). (Doc. No. 9.) Plaintiff then filed four motions: (1) Motion of Default; (2) Motion for Certificate of Appeal; (3) Motion for Default under Federal Rule of Civil Procedure 55; and (4) a Motion to Strike or in the Alternative Extend Time to Respond to Federal Defendants' Motion to Dismiss. (Doc. Nos. 10-13.) Given Mr. Calhoun's Notice of Appeal, this Court dismissed, without prejudice, docket entries 9 through 13.

Mr. Calhoun subsequently filed a Motion to Withdraw his Notice of Appeal, and the next day, Federal Defendants filed their Motion for Leave to File their Motion to Dismiss Nunc Pro Tunc. (Doc. Nos. 15, 16.) Mr. Calhoun filed a Motion to Reinstate Motions dismissed due to his Notice of Appeal. (Doc. No. 19.)

II. FACTUAL BACKGROUND

This Court covered the relevant factual background previously.*fn3 In brief, Plaintiff was convicted by a jury, and sentenced to twenty years in prison and ten years of supervised release. U.S. v. Calhoun, 276 Fed. Appx. 114, 115 (3d Cir. 2008). Neither the Federal or Commonwealth Action challenges Plaintiff's conviction; rather they seek punitive and compensatory damages in excess of $75,000 due to his allegedly illegal detention at the Federal Detention Center (FDC), Philadelphia.*fn4 (Doc. No. 2:08-cv-458, Am. Compl. 4, and Praecipe ¶ 8.) Plaintiff claims that he should have been released on February 23, 2006, as his state sentence expired at that time, and because he had posted bail. (Am. Compl. 3-4, and Praecipe ¶¶ 4, 6.) Instead, he remained at the FDC Philadelphia without hearing or explanation.

III. DISCUSSION AND ANALYSIS

A. Mr. Calhoun's Motion to Reinstate Four Dismissed Motions

After Mr. Calhoun filed his Notice of Appeal to the Third Circuit, this Court dismissed, without prejudice, four of his Motions (Doc. No. 10-13), noting that he may "refile if necessary." (Calhoun v. Murray, Civ. A. No. 08-4707, Order, Jan. 6, 2006, Doc. No. 14.) Mr. Calhoun filed a Motion to Reinstate. This Court grants his Motion, and reinstates the following:

(1) Notice of Default (Doc. No. 10); (2) Motion for Certificate of Appealability (Doc. No. 11); (3) Motion for Default Pursuant to FRCP 55 (Doc. No. 12); and (4) Motion to Strike or in the Alternative Motion for Extension of Time to File a Response to Defendants' Motion to Dismiss (Doc. No. 13). This Court now examines the merits of each of these reinstated motions.

1. Mr. Calhoun's Two Motions for Default

Mr. Calhoun's two Motions for Default (Doc. Nos. 10, 12) claim that the Federal Defendants failed to timely file their response within the period provided by this Court. In his Motion for Default Judgment under Federal Rule of Civil Procedure 55, Mr. Calhoun further alleges that he "has been prejudiced by the non-response" of Federal Defendants. (Doc. No. 12 p. 1.) For reasons discussed below, this Court finds that neither Mr. Calhoun nor this Court have been prejudiced by Federal Defendants' late filing. Accordingly, his two reinstated motions seeking default judgment are denied.

2. Mr. Calhoun's Motion for Certificate of Appealability

Mr. Calhoun filed a Motion for Certificate of Appealability "on the issue of remand back to the state court with equitable tolling to apply." (Doc. No. 11.) This Motion is denied.

Section 102 of the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2253 (as amended), codified standards governing the issuance of a certificate of appealability for appellate review of a district court's disposition of a habeas petition. Amended Section 2253 provides that "[a] certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This showing is satisfied when the petitioner demonstrates "that reasonable jurists would find the district court's assessment of the denial of a constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). Mr. Calhoun did not assert a habeas claim in either his Commonwealth or Federal Action. As a result, there is no basis for a certificate of appealability. Further, reasonable jurists could not disagree as to whether or not this Court's refusal to remand his Commonwealth Action constituted a constitutional violation. As a result, a certificate of appealability would not issue even if he had filed a habeas claim.

3. Mr. Calhoun's Motion to Strike or for Extension

This Motion seeks to either: (1) strike Federal Defendants' initial Motion to Dismiss; or (2) provide Plaintiff forty-five days to file a response. (Doc. No. 13.) This Motion is dismissed as moot. After Mr. Calhoun sought to withdraw his Notice of Appeal, Federal Defendants filed their Motion for Leave to File, and attached their revised Motion to Dismiss. (Doc. No. 16.) Mr. Calhoun sought and received an expansion of time to respond, and he filed a Response. For the reasons discussed ...


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