Petition for Writ of Certiorari — Lloyd v. Levine

pn Supreme Court, U.

\) PILED

es 97137 3 Nov 6 1997

“OFFCEUF TE BLEAK

In The

Supreme Court of the United States

~>

October Term, 1997

MICHAEL LLOYD,

Petitioner,

VS.

RONALD LEVINE, Assistant United States Attorney;

HARVEY BARTLE, III, Judge, United States District Judge;

JOHN HURLEY, Warden, FCI — Fort Dix; RICKY

McINTOSH, Unit Manager, FCI — Fort Dix; WILLIAM

LANGEHENNING, Acting Unit Manager, Senior Case

Manager, FCI — Fort DIX; FRANK GALLAGHER, Special

Agent Federal Bureau of Investigation,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Third Circuit

PETITION FOR WRIT OF CERTIORARI

JULIE A. MARZANO

Counsel of Record

MACHULSKY & MARZANO, P.C.

Attorneys for Fétitioner

525 Main Street

Sewell, New Jersey 08080

(609) 468-2935

utz

— (800) 3 APPEAL « (800) 5 APPEAL « (800) BRIEF 21 L ate

i

QUESTIONS PRESENTED

Is a federal prisoner denied due process when his approval

for placement in a Community Correction Center or halfway

house is arbitrarily revoked or rescinded because of the extra-

judicial actions of a federal judge and a federal prosecutor in

objecting to his placement so that the Bureau of Prisons officials

not only revoke or rescind his placement but also deny him his

administrative remedies and access to the courts.

Are a federal judge and federal prosecutor absolutely

immune for violating the constitutional rights of a federal

prisoner by extra-judicially contacting Bureau of Prisons

officials in an effort to have the prisoner’s approval for placement

in a Community Correction Center revoked or rescinded, and

are prison officials immune for violating a prisoners due process

rights by denying him access to the courts.

il

PARTIES TO THE PROCEEDING

In addition to the parties named in the caption, the following

are parties: John Hurley, Warden of the Federal Corrections

Institution at Fort Dix; Ricky McIntosh, Unit Manager at Federal

Corrections Institution at Fort Dix; William Langehenning,

Acting Unit Manager and Senior Case Manager at Federal

Corrections Institution at Fort Dix; Frank Gallagher, Special

Agent of the Federal Bureau of Investigation.

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TABLE OF CONTENTS

Page

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RUE I nc ccescnsvessedvese aA iv

re rok. Voy an «00a 'e 6 6 F oce-ec8lae 8 l

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Constitutional Provisions Involved ................ l

RUNNION OE TE CRRO ww. cece ccc c ec cccccccens 2

A. Mr. Lloyd’s Placement In CCC ............. 2

ee ID occ cecccersccsebens 3

C. The Denial Of Furloughs And CCC Placement 5

D. The Proceedings Below ...........scccee0. 6

Reasons for Granting the Writ ..........c.ccceeee. 8

I. The Petition Should Be Granted Because The

Ruling By The Court Of Appeals Conflicts With

This Court’s Rulings On The Due Process Rights

Of Prisoners And Conflicts With The Rulings Of

Other Courts OF Appeals. .......ccccscccces 8

iv

Contents

Page

II. The Petition Should Be Granted Because The

Alteration Of The Provisions Of The CCC

Placement Program Violates The Ex Post Facto

Provision Of The United States Constitution. .. 16

III. The Petition Should Be Granted Because The

. Rulings Regarding Immunity For Judge Bartle And

Prosecutor Levine Conflict With This Court’s Prior

a. errr Serer ee yer rere re 18

CORON 5 xc os on ehdbedene de OEE SE EE aes 21

TABLE OF CITATIONS

Cases Cited:

Beazell v. Ohio, 269 U.S. 167 (1925) ............... 16

Bieregu v. Reno, 59 F.3d 1445 (3d Cir. 1995) ........ 20

Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971)

pAb Sek aa er ioe ee ara rh ea Dan 2

Burns v. Reed, S00 U.S. 476 (1991) ....cccccccvccce 19

Durso v. Rowe, 579 F.2d 1365 (7th Cir. 1978), cert. denied,

439 U.S. 1121, 99 S. Ct. 1033, 59 L. Ed. 2d 82 (1979)

5 sleidc hae Aaa OE a ae ee a ees 11

Forrester v. White, 484 U.S. 219 (1988) ............ 18 |

Griffin v. Vaughn, 112 F.3d 703 (3d Cir. 1997) ....... 15 |

a |

Contents

Page

Harper v. Young, 64 F.3d 563 (10th Cir. 1995) ....... 14, 15

Imbler v. Pachtman, 424 U.S. 409 (1976) ........... 19

Lynce v. Mathis, ___ U.S. __, 117 S. Ct. 891, 137 L. Ed. 2d

Oe CSSOTE +105 0900444 ebee beh eke eae 16

Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L.

ls ee UTED Kc cca ba ween conser 9

Pierson v. Ray, 386 U.S. 547 (1967)... cece ceccees 18

Price v. Johnston, 334 U.S. 266, 68 S. Ct. 1049, 92 L. Ed.

Ee CO DUE oss 60 00044055 eras 9

Procunier v. Navarette, 434 U.S. 555 (1978) ........ 20

Pulliam v. Allen, 466 U.S. 522 (1984) .............. 18

Sandin v. Conner, _ U.S. __, 115 S. Ct. 2293, 132 L. Ed.

me Rte tie) 5 85 ease 04640 eee 14, 15

Weaver v. Graham, 450 U.S. 24 (1981) ............. 17

Winsett v. McGinnes, 617 F.2d 996 (3d Cir. 1980) ....

PETE TC CoC eS TT eee TT 8, 10, 11, 12, 13, 14, 15

Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L.

we bE) eee er rere reer 9, 11

yaoetss %. GOR, 21S Ud. Fee CAPE) 65.00 0bs cxcedeees 19

vi

Contents

Page

Statutes Cited:

S USL. F P08 OC MR ikki esas oeneenaeee ae 2

IS UGA. SERRE 65 08k déiitessn eee l

oe UGA. 8 ISS i iiins cacevicdigucrsee eee 2

2B USK. TB cccccctvsctcsvnseiss eee 2

ys SIR fo bs. - PP eerryr rr ery Ty rt

28 U.B. § FONG) isinescvcvawdsaneeseeetewsas 9

United States Constitution Cited:

Asteeee &. S30 a's vk ccasuaasanee eee ee 1, 16

PIT AMNOMGMONE ooo nv decsneansene benneeanes l

Vil

Contents

APPENDIX

Appendix A — Judgment Order Of The United States

Court Of Appeals For The Third Circuit Filed August

DEEEE Dexuseunvetees Peukaelensnserarious ers

Appendix B — Order Of The United States District Court

For The District Of New Jersey, Camden Vicinage

Entered November 8, 1996 ...............00000-

Appendix C — Opinion And Order Of The United States

District Court For The District Of New Jersey Filed

Be ee er ee

Page

3a

Sa

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Petitioner Michael Lloyd respectfully requests that a writ

of certiorari be issued to review the judgment of the United States

Court of Appeals for the Third Circuit in this case.

OPINIONS BELOW

There is no opinion of the United States Court of Appeals

for the Third Circuit. The Order of the Court of Appeals affirming

the order of the district court on the merits is attached as

Appendix A. The opinion of the district court in Lloyd v. Levine,

Civ. No. 96-3496, is not published and is attached as Appendix

B.

STATEMENT OF JURISDICTION

The judgment of the United States Court of Appeals for the

Third Circuit was entered on August 8, 1997. (Appendix A)

The jurisdiction of this Court is invoked under 18 U.S.C.

§ 1254(1).

-CONSTITUTIONAL PROVISIONS INVOLVED

The Fifth Amendment to the United States Constitution

provides in relevant part:

No person shall ... be deprived of life, liberty, or

property, without due process of law... .

Article I, § 10 of the United States Constitution provides

that:

[nJo state shall ... pass any ... ex post facto law.

2

STATEMENT OF THE CASE

The fundamental question in this case is whether a federal

prisoner has a liberty interest in his placement in a Community

Correction Center (CCC) or halfway house so that it is a violation

of his constitutional right to due process for that placement to

be arbitrarily revoked or rescinded because of the unsolicited

extra-judicial actions of a federal judge and federal prosecutor

in contacting the officials at the prison to express their objections

to his placement in a CCC. Because of this unsolicited extra-

judicial contact, the prison officials revoked or rescinded the

prisoner’s placement in the CCC and denied him his

administrative remedies. Jurisdiction in the United States Court

of Appeals for the Third Circuit was based on Bivens v. Six

Unknown Named Agents, 403 U.S. 388 (1971), 28 U.S.C. § 2241,

28 U.S.C. § 1331 and 5 U.S.C. § 701, et seq.

A. Mr. Lloyd’s Placement in CCC

Michael Lloyd entered a plea of guilty to charges relating

to securities fraud on August 4, 1992. He was sentenced to a

term of incarceration of seven years by the Honorable Harvey

Bartle III. Mr. Lloyd appealed his sentence and the United States

Court of Appeals for the Third Circuit vacated the sentence in

part because it did not comply with the United States Sentencing

Guidelines, and remanded it to Judge Bartle for re-sentencing.

Judge Bartic expressed displeasure with the mandate of the Court

of Appeals but sentenced Mr. Lloyd to a term of incarceration

of 63 months.

Mr. Lloyd surrendered himself in September, 1992 and

began to serve his sentence at the Allenwood Federal Prison

Camp in Pennsylvania. In December, he was transferred to the

Federal Corrections Institution at Fort Dix, New Jersey. On

several occasions, Mr. Lloyd was granted and successfully

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completed multi-day furloughs. He had twice been approved

for CCC placement for the last 180 days of his sentence, the

maximum permitted, but was denied admittance because of the -

lack of bed space. |

On March 26, 1996, Mr. Lloyd received another

recommendation from the Unit Team (consisting of Unit

Manager, Case Manager and Inmate Counselor) for placement

into a CCC for the last 180 days of his term. In April, 1996, Mr.

Lloyd applied for a furlough privilege. One reason for this

request was that Mr. Lloyd wanted to use the furlough to develop

information to support his section 2255 motion. The furlough

was approved and he was informed on May 17, 1996, that he

could go on furlough any time after May 31, 1996. Mr. Lloyd

chose June 1, 2, 3 and 4.

B. The § 2255 Motion

On October 13, 1993, an Order was entered by the

Honorable Curtis Joyner in a civil action filed by the Securities

and Exchange Commission. The Order provided, inter alia, that:

the criminal information against Lloyd which was

based on the same course of conduct which formed

the basis for this action, and Lloyd’s subsequent guilty

plea.

Mr. Lloyd did not receive a copy of this order until August 14,

1995, when the Burlington County Sheriff served it upon him.

Because this implicated Mr. Lloyd’s constitutional right against

double jeopardy arising from previous seizure actions taken

against Mr. Lloyd by the Securities and Exchange Commission,

Mr. Lloyd filed a motion to vacate his conviction under 28 U.S.C.

§ 2255. This motion was filed on May 3, 1996 and was assigned

to Judge Bartle.

4

Judge Bartle learned through this motion that Mr. Lloyd

had been approved for six months CCC placement. On June 11,

1996, Judge Bartle telephoned Warden John Hurley regarding

the propriety of such placement for Mr. Lloyd. He telephoned

Warden Hurley again on June 13, 1996, this time to inquire as

to the number, duration and location of furloughs that had been

granted to Mr. Lloyd. After receiving these telephone calls from

Judge Bartle, Warden Hurley wrote to Judge Bartle informing

him that Mr. Lloyd had met with the Unit Team with regard to

placement in a CCC. Warden Hurley then indicated that because

of his conversation with Judge Bartle, he asked for Judge Bartle’s

views and comments concerning Mr. Lloyd’s placement in a

CCC. By this time, however, as indicated by the prison records,

Mr. Lloyd had already had a Unit Team recommendation for

CCC placement. Warden Hurley later wrote to Judge Bartle with

the information about Mr. Lloyd’s furloughs. Judge Bartle

responded to Warden Hurley, stating that Mr. Lloyd “deserves

to be imprisoned for his full sentence” minus good time, that

Mr. Lloyd “does not need to be placed in a Community

Corrections Center in order to ease his return to civilian life”,

and that Mr. Lloyd does not even need furloughs in order to

reestablish or to strengthen family ties. Judge Bartle also stated:

I cannot imagine that it was the intent of Congress to

allow a person such as Mr. Lloyd to have the benefit

of several furloughs in light of the serious crimes he

has committed. As a result of the 1984 sentencing

reforms, Congress opted for fixed and determinate

sentences. However, it appears that the old parole

system is still with us.

In the meantime, Mr. Lloyd became aware that the attorney

representing one of his adversaries in a civil action had received

documents filed by Assistant United States Attorney Ronald

Levine in Bankruptcy Court in Mr. Lloyd’s bankruptcy case.

nt VR Th ain hee aa

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These documents had not been mailed to Fort Dix, where Mr.

Lloyd was incarcerated, but to an address where he no longer

resided.

When Mr. Levine became aware of Mr. Lloyd’s § 2255

motion, he filed a letter request seeking an additional 100 days

to respond to it. This letter was misdirected to Mr. Lloyd. Mr.

Levine indicated that he would have stated that it was the position

of the U.S. Attorney’s Office that Mr. Lloyd’s release to CCC

would be inappropriate because of his huge outstanding

restitution obligation.

On numerous occasions, prison officials opened Mr. Lloyd’s

“special mail” from the courts and read it outside his presence,

and they frequently refused to accept mail for Mr. Lloyd.

C. The Denial of Furloughs and CCC Placement

On or about May 29, 1996, Mr. Lloyd was informed by the

Unit Team that his previously approved furlough was being

rescinded. Mr. Lloyd, under the Administrative Remedies

Procedure Act, filed an Informal Resolution Form (BP-8), in

which he voiced his complaint about having his previously

approved furlough rescinded. On June 6, 1996, Mr. Lloyd filed

directly through the Unit Team a Request for Administrative

Remedy (BP-13). Mr. Lloyd has never received a response from

prison officials.

On June 25, 1996, Mr. Lloyd met with his Unit Team, which

again continued to recommend CCC placement. This was two

weeks after Judge Bartle’s comments to prison officials. On June

29, 1996, three days after Judge Bartle had written his letter to

Warden Hurley objecting to Mr. Lloyd’s CCC placement, Mr.

Lloyd was informed that the recommendation for CCC

placement was being reduced from 180 days to 120 days. At the

6

same time, Mr. Lloyd was informed that “at the request of outside

law enforcement agencies”, the Unit Team had reevaluated his

CCC recommendation. But the Unit Team, having noted that

he had a release residence already secured and solid employment

possibilities, continued to recommend 120 days CCC placement.

On July 1, 1996, Mr. Lloyd was informed that the now

reduced 120 days of CCC placement was being totally rescinded.

The reason for the rescission was the “substantial objection from

the sentencing court”. Mr. Lloyd filed an Informal Resolution

Form outlining his complaint of the rescission of his CCC

placement. On July 2, 1996, he filed a Request for Administrative

Remedy Form directly through the Unit Team. Mr. Lloyd has

never received any response from the appropriate prison officials.

D. The Proceedings Below

On July 9, 1996, Mr. Lloyd filed a motion seeking an Order

of Recusal of Judge Bartle on the § 2255 application, basing his

request on the ultra vires acts of Judge Bartle, which included

in part the rescission of the CCC placement. On August 24, 1996,

by random re-assignment, Judge Bartle was removed from Mr.

Lloyd’s § 2255 application by the Chief Judge of the District.

The record does not reflect that Judge Bartle recused himself

despite his statement that he did so.

Having received no response after the required 20 days,

Mr. Lloyd filed suit in United States District Court for the District

of New Jersey, including as part of the filing an ex parte Order

to Show Cause with Temporary Restraints. The District Court

denied the issuance of a temporary restraining order.

The defendants filed a motion for summary judgment. On

November 4, 1996, the Honorable Jerome B. Simandle, U.S.D.J.,

entered an Order denying Mr. Lloyd’s motion and granting the

‘weenie

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defendants’ motion, dismissing his complaint against Judge

Bartle, Mr. Levine and the other defendants. In his opinion,

Judge Simandle held that there was no personal jurisdiction over

Judge Bartle, Prosecutor Levine or Special Agent Gallagher, that

Judge Bartle was absolutely immune because his statements

constituted a “judicial act” in that he was merely offering a

sentencing-related opinion on a defendant he had originally

sentenced, that Mr. Levine was also absolutely immune in that

his recommendation was official conduct intimately associated

with the judicial phase of the criminal process, and that Special

Ageni Gallagher was entitled to qualified immunity but that he

was immune. With regard to the decision to revoke CCC

placement to Mr. Lloyd, Judge Simandle held that the decision

was not reviewable absent violation of a constitutional right,

and that there was no violation of a constitutional right.

On appeal to the Third Circuit Court of Appeals, Mr. Lloyd

argued that there was personal jurisdiction, that there was no

judicial or prosecutorial immunity, and that the grant of summary

judgment regarding the decision to rescind the CCC placement

was an error in that the decision constituted a violation of due

process. Mr. Lloyd argued that he had a liberty interest

protectible under the United States Constitution in CCC

placement since he had qualified for and been granted CCC

placement. Mr. Lloyd also argued that the rescission of his CCC

placement constituted a violation of the Ex Post Facto Clause

of the Constitution.

On August 8, 1997, the Court of Appeals affirmed, without

opinion, the Order of the District Court “on the merits and not

on the grounds of lack of personal jurisdiction.” By doing so,

the Court of Appeals has ruled that the rescission of a federal

prisoner’s CCC placement because of the extra-judicial

comments by the sentencing judge and a federal prosecutor is

not a denial of the prisoner’s due process rights. This is in direct

8

contradiction of the Court of Appeals’ own ruling in Winsett v.

McGinnes, 617 F.2d 996 (3d Cir. 1980), in which it was held

that a prisoner had stated a cause of action for deprivation of

his procedural due process rights when, because of fear of

adverse public reaction and legislative reprisals against the

prison system, prison officials denied an application for work

release to a prisoner who had been sentenced to life

imprisonment for the felony murder of a Delaware State Police

Officer.

REASONS FOR GRANTING THE WRIT

I.

THE PETITION SHOULD BE GRANTED BECAUSE

THE RULING BY THE COURT OF APPEALS

CONFLICTS WITH THIS COURT’S RULINGS ON THE

DUE PROCESS RIGHTS OF PRISONERS AND

CONFLICTS WITH THE RULINGS OF OTHER COURTS

OF APPEALS.

Mr. Lloyd’s petition for writ of certiorari should be granted

because the ruling below conflicts with this Court’s rulings on

a prisoner’s fundamental due process rights, as well as with the

rulings of other Courts of Appeals that have considered the

question.

Mr. Lloyd’s claim consists of both procedural and

substantive due process violations. The use of impermissible

extra-judicial criteria to rescind the CCC placement denied Mr.

Lloyd the process of review of the program and thus violated

procedural due process. The use of impermissible extra-judicial

criteria also deprived Mr. Lloyd, as contrasted with other

prisoners, of access to the CCC placement program. The

threshold question is whether there is any protectible

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Li calli Me OL TERE NR RED OO

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constitutional interest implicated in the program of CCC

placement.

It is clear that while a prisoner’s constitutional rights are

circumscribed, Price v. Johnston, 334 U.S. 266, 68 S. Ct. 1049,

92 L. Ed. 1356 (1948), “a prisoner is not wholly stripped of

constitutional protections when he is imprisoned for crime.”

Wolff v. McDonnell, 418 U.S. 539, 555-56, 94 S. Ct. 2963, 2974,

41 L. Ed. 2d 935 (1974). For instance, in Morrissey v. Brewer,

408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972), this

Court held that the due process clause protects prisoners from

arbitrary or capricious deprivation of those facets of a convicted

criminal’s existence that qualify as liberty interests. In Morrissey,

such a liberty interest was found in parole revocation

proceedings.

This Court has not found a constitutionally-protected liberty

interest in CCC placement, but in Wolff, 418 U.S. at 557, 94 S.

Ct. at 2975, this Court held that under the state’s system of

“sood-time credits”, which could only be forfeited for serious

misconduct, the state had created a right to good-time credits

that could only be removed if a prisoner engaged in serious

misconduct. Consequently, the prisoner had an interest of real

substance sufficiently embraced within the Constitution to entitle

him to the minimum procedures required by the Due Process

Clause.

In the case at bar, the Bureau of Prisons, pursuant to 28

U.S.C. § 3624(c), put in place a system whereby federal

prisoners can qualify for placement in a Community Corrections

Center for a maximum of 180 days. Therefore, once a prisoner

has become eligible for and has been recommended for

placement in a CCC, he has acquired an interest of real substance

that entitles him to the constitutional protection of the Due

Process Clause.

10

In Winsett v. McGinnes, 617 F.2d 996 (3d Cir. 1980), a

prisoner in the Delaware state prison system requested

classification to work release status after 10 years in prison,

during which he had been a model prisoner, had taken courses

in heating and air conditioning, wrote for the prison newspaper

and got along well with inmates and officers. He was serving a

life sentence for felony murder of a Delaware State Police

Officer. The Delaware work release program was governed by

statute and regulations and required three levels of decision

making. The prisoner’s application was approved by all three

levels on its way to the Superintendent for his final approval.

However, public opposition to granting work release for Winsett

was becoming manifest. A Delaware state senator wrote a letter

to the superintendent, strongly condemning what the senator

believed to be the superintendent's intention to prepare Winsett

for work release. The superintendent replied to the state senator

by indicating that as long as he was superintendent, he would

never be able to entertain any requests from Winsett for work

release. The superintendent rejected Winsett’s application for

work release and Winsett initiated an action alleging that the

rejection was predicated on the “sensitivity” of his offense and

that this was a legally impermissible basis for evaluating work

release applications. While the action was pending, Winsett

applied a second and third time for work release. His second

application was approved by two levels before being denied.

His third application was approved by all three committees

before being vetoed.

Winsett argued that by establishing a work release program,

the state had created a protectible interest in participation in the

program by eligible inmates and that the use of impermissible

criteria to deny him access to the program denied him his right

to liberty guaranteed by the Fourteenth Amendment. As in the

case at bar, the due process claim had both procedural and

substantive overtones. The court found that there was no

1]

constitutionally mandated right to enter a discretionary parole

release program, but cited Wolff in noting that the United States

Supreme Court has been willing to extend Fourteenth

Amendment protection when a state has created a liberty interest

in the form of a specific guarantee. Noting that the fundament

of Winsett’s claim is the regulations promulgated by the

Delaware Department of Corrections to implement the legislative

grant of authority to create a work release program and that it is

this set of regulations that Winsett claims creates the liberty

interest entitled to constitutional protection, the court first held

that the state-created right can be established in the regulations

implementing the statute. The court cited Durso v. Rowe, 579

F.2d 1365 (7th Cir. 1978), cert. denied, 439 U.S. 1121, 99S. ce.

1033, 59 L. Ed. 2d 82 (1979), for then holding that if a prisoner

could establish that as a matter of practice his work release

program would not be revoked absent a rule violation, he had

an interest protected by due process. The court held that under

Durso, the Due Process Clause may be triggered by official

policies and practices. The court stated:

The presence of discretion on the part of the prison

authorities in the work release program does not negate

the possibility that a state-created entitlement to work

release may exist, because we do not view the prison

authorities’ discretion as absolute. If the prison

authorities could by the arbitrary exercise of discretion

deny a work release application to a prisoner even

though he met all eligibility requirements, then any

entitlement to work release would be illusory rather

than real.

617 F.2d at 1006. The court indicated that it could not believe

that the committees, whose function involved making rather

detailed evaluations of inmates’ fitness for work release, were

intended to be overriden for any reason chosen by the

12

superintendent, however unrelated to the statutory purpose. The

court held that a state-created liberty interest in work release

arises when a prisoner meets all eligibility requirements under

the state regulations and the exercise of the prison authorities’

discretion is consistent with work release policy. The court

concluded that Winsett had a protectible liberty interest in work

release because he met all eligibility criteria, and that the

considerations influencing the discretionary denial of work

release, namely the concern for public opinion and fear of

legislative reprisals, were outside the legitimate bounds of the

prison officials’ discretionary power. The court stated that had

the officials acted within the permissible scope of their

discretion, Winsett would have been granted work release. The

court indicated that to hold otherwise would mean that the state-

created interest in work release for eligible prisoners could be

overriden simply by the prison officials’ abuse of discretion.

The court concluded that Winsett had a liberty interest protectible

under the Fourteenth Amendment’s guarantee of due process.

Having come to that conclusion, the court next considered

whether the denial violated Winsett’s procedural due process

rights. The court stated:

If the prison officials considered the extraneous criteria

of public opinion and legislative reaction, the normal

procedure for considering work release applications

was distorted to Winsett’s detriment. Under the work

release program, the applicant is entitled to have his

application approved if all eligibility criteria are met

and the prison authorities approve the application. If

the authorities do not properly exercise their discretion,

the process due under the work release program is

denied.

617 F.2d at 1008. The court concluded that in considering the

a a ee ee a

13

extraneous criteria, the officials violated the procedure to be

accorded Winsett’s work release application, and that Winsett

has a cause of action against them for the alleged deprivation of

procedural due process. The court noted that society recognizes

that there is a terminal point to retribution and that it should

concern itself with the rehabilitation and return of the prisoner

to a productive role in the community. Although acknowledging

a degree of imprecision in determining eligibility, the court

Stated:

When the discrepant treatment between prisoners is

purposeful and participation in work release is denied

to one prisoner only because of the Superintendent's

amorphous perception of public opinion, then the

laudable purposes of a structured program are skewed

by a basic lack of fairness. If work release for a

prisoner is not determined solely on the basis of the

statutory and regulatory criteria established by the state

but may also depend upon what may be perceived

public reaction to it, these extraneous considerations

can cut both ways. Not only can worthy work release

applications be thereby denied but similar influences

may compel admittance to the program of undesirable

and unqualified applicants.

617 F.2d at 1008, n.14.

Like the state system in Winsett, the federal system has in

place a program for placement in a Community Correction

Center for federal prisoners. Once a prisoner has met all

eligibility criteria, he can be recommended for placement in a

CCC. Like Winsett, Mr. Lloyd met all the eligibility criteria in

the system for placement in the program. Like Winsett, Mr. Lloyd

was approved for placement in the program several times and

was awaiting only the last 180 days of his incarceration. Like

14

Winsett, Mr. Lloyd was denied placement in the program because

of impermissible extraneous fears due to the objections of the

sentencing judge and a federal prosecutor. Like the prison

officials in Winsett, the prison officials at Fort Dix did not

properly exercise their discretion and the normal procedure for

considering Mr. Lloyd’s application for placement in a CCC

was distorted to his detriment. As in Winsett, the process due

under the program was denied, violating Mr. Lloyd's

constitutional right to procedural due process.

In the recent case of Sandin v. Conner, __ U.S. __, 115 S.

Ct. 2293, 2299-2300, 132 L. Ed. 2d 418 (1995), this Court

narrowed the range of circumstances that will give rise to a state-

created liberty interest for prisoners, holding that such interests

“will generally be limited to freedom from restraint which...

imposes atypical and significant hardship on the inmate in

relation to the ordinary incidents of prison life.” In Harper v.

Young, 64 F.3d 563 (10th Cir. 1995), the Court of Appeals,

interpreting Sandin, held that participation in a pre-release

conditional supervision program similar but more restrictive than

parole was a protectible liberty interest. The prisoner was

terminated from the program. He received verbal notice of the

termination less than five hours before he had to turn himself in

to authorities. He never had any hearing at which he could

present evidence of any kind. The court held that program

participation is sufficiently similar to parole or probation to merit

protection under the Due Process Clause, and that because the

prisoner was qualified to remain with the program, he was

entitled to receive due process before being deprived of his

liberty. The court stated:

The passage outside the walls of a prison does not

simply alter the degree of confinement; rather, it works

a fundamental change in the kind of confinement, a

transformation that signals the existence of an inherent

15

liberty interest and necessitates the full panoply of

procedural protections outlined in Morrissey.

64 F.3d at 566.

In Griffin v. Vaughn, 112 F.3d 703 (3d Cir. 1997), the court

applied Sandin to a prisoner’s claim of a violation of procedural

due process in his transfer to administrative custody for fifteen

months because he was suspected of beating and raping a female

prison guard. The prison regulations provided that confinement

in administrative custody shall not exceed 10 days, with an

additional 10 day investigative confinement period if the

investigation is not completed. Although the court found that

the commitment to and confinement in administrative custody

did not deprive the prisoner of a liberty interest and that he was

not entitled to procedural due process protection, the court

nevertheless acknowledged that

the regulations confer upon an inmate in Griffin’s

position a right to be released from administrative

custody after 20 days in the absence of a misconduct

charge.

The thread running through all this is that prison regulations

can create a right that can be protected by the Due Process Clause

of the Constitution. In Griffin, the regulations created a

protectible right not to spend more than 20 days in administrative

custody. In Harper, the regulations created a protectible right

to remain in a pre-release supervision program. In Winsett, the

regulations created a protectible right to be admitted to a work

release program.

The case at bar is almost exactly like Winsett in that Mr.

Lloyd has met all eligibility criteria for acceptance into a

program, has been approved at all levels not only once but several

16

times for acceptance into a program, and has been denied

acceptance into the program because of the improper exercise

of discretion on the part of prison officials due to objection to

the admittance of the prisoner to the program by influential

persons outside the prison system, despite the fact that the

persons most intimately involved with the program consistently

approved Mr. Lloyd’s admittance into the program. The

rescission of Mr. Lloyd’s admittance into a CCC was not

accomplished with due process. It was done by the improper

exercise of discretion by the prison officials acting under

impermissible outside pressure. Consequently, Mr. Lloyd was

denied the process due him under the United States Constitution,

and his petition should be granted so that this Court may affirm

its holdings on due process for protectible rights of prisoners

Il.

THE PETITION SHOULD BE GRANTED BECAUSE

THE ALTERATION OF THE PROVISIONS OF THE CCC

PLACEMENT PROGRAM VIOLATES THE EX POST

FACTO PROVISION OF THE UNITED STATES

CONSTITUTION.

In this Court’s recent decision in Lynce v. Mathis, __ U.S.

_., 117 S. Ct. 891, 137 L. Ed. 2d 63 (1997), a 1992 Florida

statute cancelling provisional release credits or overcrowding

credits was held to be violative of the Ex Post Facto Clause of

the United States Constitution. Article I, § 10 of the Constitution

provides that “[n]Jo state shall ... pass any ... ex post facto

law.” In Beazell v. Ohio, 269 U.S. 167, 170 (1925), Justice Stone

explained:

The constitutional prohibition and the judicial

interpretation of it rest upon the notion that laws,

whatever their form, which purport to make innocent

ye Seen)

Leahy ioe

ARM ER.

patie

DE BS) ORB NRE Ie 9 et

Pte oD

ee Ne

Teas

Seis

17

acts criminal after the event, or to aggravate an offense,

are harsh and oppressive, and that the criminal quality

attributable to an act, either by the legal definition of

the offense or by the nature or amount of the

punishment imposed for its commission, should not

be altered by legislative enactment, after the fact, to

the disadvantage of the accused.

In Weaver v. Graham, 450 U.S. 24 (1981), this Court recognized

that retroactive alteration of parole or early release provisions

implicates the Ex Post Facto Clause because such they are

determinant of the prisoner’s term of incarceration so that the

prisoner’s effective sentence is altered once this determinant is

changed. This Court explained that the removal of such

provisions can constitute an increase in punishment because a

prisoner’s eligibility for reduced imprisonment is a

significant factor entering into both the defendant’s

decision to plea bargain and the judge’s calculation of

the sentence to be imposed.

450 US. at 32.

Placement in a CCC is also a determinant of a prisoner’s

term of incarceration. Any alteration or change in the system

governing placement in a CCC also alters or changes the

prisoner’s effective sentence and constitutes an increase in

punishment. In the case at bar, the “alteration” of the system

because of the improper exercise of discretion by the prison

officials influenced by the impermissible extraneous objections

of a federal judge and prosecutor makes an even more

compelling case for a violation of the Ex Post Facto Clause.

Consequently, the petition should be granted in order that this

Court may affirm the importance of its holdings on the Ex Post

Facto Clause with respect to the increase in punishment imposed

on prisoners.

18

Ill.

THE PETITION SHOULD BE GRANTED BECAUSE

THE RULINGS REGARDING IMMUNITY FOR JUDGE

BARTLE AND PROSECUTOR LEVINE CONFLICT WITH

THIS COURT’S PRIOR RULINGS.

It is well-settled that federal judges are absolutely immune

from suit for acts committed while within the scope of their

judicial duties, although not in their administrative duties.

Forrester v. White, 484 U.S. 219 (1988); Pierson v. Ray, 386

U.S. 547 (1967). In Pulliam v. Allen, 466 U.S. 522 (1984), this

Court held that judicial immunity does not extend to protecting

a judge when the judge’s actions have violated the constitutional

rights of the plaintiff. It is clear that the acts of Judge Bartle in

taking it upon himself to contact the prison warden solely in

order to voice his biased objection to the placement of Mr. Lloyd

in a CCC for the last 180 days of his incarceration term violated

Mr. Lloyd’s constitutional rights. They were clearly extra-

judicial and not within the scope of his judicial duties. The fact

that his initiating contact with the warden was the result of his

private animus and bias against Mr. Lloyd is clear from his

written comment that he could not imagine that Congress

intended to allow “a person such as Mr. Lloyd” to have the

benefit of several furloughs. Clearly, if Judge Bartle wanted to

prevent Mr. Lloyd from furloughs and from CCC placement for

the last few months of his term, he had two opportunities to do

so — the first sentencing and the second sentencing. Had he

done so at either time, he would have been clothed with judicial

immunity.

Judge Bartle was not aware of the recommendation that Mr.

Lloyd be placed in CCC for his last 180 days until he received

Mr. Lloyd’s § 2255 motion to vacate his conviction and sentence.

As soon as that motion was received and Judge Bartle became

cy ee TIES CES ee eg

19

aware of the CCC placement recommendation, he telephoned

the warden and objected. The filing of the § 2255 motion did

not require the judge to telephone the warden of the prison in

which the person filing the motion is incarcerated. The sole

purpose for Judge Bartle’s telephone call to the warden was to

forcefully present his objections to the placement of Mr. Lloyd

into a CCC in an attempt (and a successful one at that) to pressure

the warden into rescinding Mr. Lloyd’s placement in a CCC.

Prison officials did not contact Judge Bartle or solicit his

comments during the process of evaluating Mr. Lloyd for CCC

placement before the filing of the § 2255 motion. Mr. Lloyd

was recommended for CCC placement several times without

input from Judge Bartle. It was Judge Bartle who initiated

contact with the warden, who did not write to Judge Bartle asking

for his comments until after he had been contacted twice by

Judge Bartle. Judge Bartle’s comments were not necessary or

required for the evaluation of Mr. Lloyd for placement into a

CCC. Clearly, the unsolicited negative opinion of Judge Bartle

did not further or involve his judicial duties.

With respect to Ronald Levine, Assistant United States

Attorney, this Court has held that a federal prosecutor was

absolutely immune from suit for malicious prosecution. Yaselli

v. Goff, 275 U.S. 503 (1927). This holding was re-affirmed by

this Court in Jmbler v. Pachtman, 424 U.S. 409 (1976), where it

was held that the immunity extends to any activities of the

prosecutor which are intimately associated with the judicial

phase of the criminal process. However, absolute immunity does

not extend to actions taken by a prosecutor in his role as an

advocate for the state or in actions taken in an administrative or

investigative capacity. Burns v. Reed, 500 U.S. 478, 491 (1991).

It is clear that Mr. Levine’s acts were not intimately

associated with the judicial phase of the criminal process in Mr.

20

Lloyd's case. Mr. Lloyd had almost completed his sentence and

was in the process of going home. All of Mr. Levine's actions

related to his attempts to collect restitution money from Mr.

Lloyd, including writing to the United States Bankruptcy Court

and the Superior Court of New Jersey to place liens on property

owned by Mr. Lloyd. In objecting to Mr. Lloyd’s placement in a

CCC, Mr. Levine specifically linked his opposition to the fact

that release to community confinement would be inappropriate

because of Mr. Lloyd’s outstanding restitution obligation. This

clearly is not an intimate association with the judicial phase.

At best, it is an administrative action or an action taken in his

role as an advocate for the government in attempting to reclaim

restitution money.

With respect to the prison officials, it is clear that they

violated Mr. Lloyd's rights by opening his “special mail” from

courts, from the prosecutor’s office and from court clerks and

reading it outside his presence. See Bieregu v. Reno, 59 F.3d

1445 (3d Cir. 1995); Procunier v. Navarette, 434 U.S. 555

(1978). They also refused to accept such mail for Mr. Lloyd. In

addition, Judge Bartle and Mr. Levine deliberately misdirected

Mr. Lloyd's mai! so it would not reach him in a timely manner,

thereby unconstitutionally denying him timely access to the

courts.

The petition should be granted so that this Court may affirm

its important holdings on the immunity granted to federal judges

and prosecutors and so that it may establish that immunity is

not to be extended to extra-judicial acts, and also confirm that

prison officials are not immune for violating a prisoners due

process rights to access to the courts.

21

CONCLUSION

This case presents questions of importance for this Court,

namely, whether a federal prisoner is denied due process when

his placement in a Community Correction Center is denied

because of extra-judicial actions of a federal judge and a federal

prosecutor in pressuring prison officials to improperly exercise

their discretion, whether the rescission of approval for placement

in a CCC violates the Ex Post Facto Clause, whether the federal

judge and federal prosecutor are absolutely immune for the acts

done outside the scope of their judicial duties, and whether

prison officials are immune for violating a prisoners due process

rights to access to the courts.

Accordingly, Michael Lloyd respectfully requests that his

petition for writ of certiorari be granted.

Respectfully submitted,

JULIE A. MARZANO

Counsel of Record

MACHULSKY & MARZANO, P.C.

Attorneys for Petitioner

525 Main Street

Sewell, New Jersey 08080

(609) 468-2935

la

APPENDIX A — JUDGMENT ORDER OF THE UNITED

STATES COURT OF APPEALS FOR THE THIRD

CIRCUIT FILED AUGUST 8, 1997

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 96-5739

MICHAEL LLOYD,

APPELLANT

V.

RONALD LEVINE, Assistant United States Attorney

HARVEY BARTLE, III, Judge, United States District Judge;

JOHN HURLEY, Warden, FCI - Fort Dix:

RICKY MCINTOSH, Unit Manager, FCI - Fort Dix:

WILLIAM LANGEHENNING, Acting Unit Manager,

Senior Case Manager, FCI - Fort DIX:

FRANK GALLAGHER, Special Agent Federal Bureau

of Investigation

Appeal from the United States District Court

for the District of New Jersey

D.C. Civ. No. 95-cv-03496

(District Judge: Honorable Jerome B. Simandle)

Argued: July 21, 1997

Before: BECKER, MANSMANN, and ROSENN,

Circuit Judges.

——

2a

Appendix A

JUDGMENT ORDER

After considering the contentions raised by appellant, it is

ADJUDGED AND ORDERED that the order of the district

court of November 7, 1996 be and is hereby AFFIRMED. '

Costs taxed against appellant.

BY THE COURT:

s/ illegible

Circuit Judge

Attest:

s/ Bradford A. Baldus

Bradford A. Baldus

Chief Deputy Clerk

AUG - 8 1997

Costs taxed in favor of Appellees as follows:

PS err eer re ere $257.60

Certified a true copy and issued in lieu of a formal mandate on

September 29, 1997.

Teste: s/ P. Douglas Sisk

Clerk, United States Court of Appeals for the Third Circuit

1. We affirm on the merits and not on the grounds of lack of personal |

jurisdiction.

3a

APPENDIX B — ORDER OF THE UNITED STATES

DISTRICT COURT FOR THE DISTRICT OF

NEW JERSEY, CAMDEN VICINAGE

ENTERED NOVEMBER 8, 1996

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

HONORABLE JEROME B. SIMANDLE

Civil No. 96-3496

MICHAEL LLOYD,

Plaintiff,

7

RONALD LEVINE, Assistant United States Attorney, et al.,

Defendants.

ORDER

THIS MATTER having been brought upon motion before

the Court by Mary R. Machulsky, Esquire, attorney for plaintiff,

for an order granting expedited discovery; and the Court having

considered the moving papers; and there being no opposition to

this motion; and for good cause shown herein;

IT APPEARING TO THE COURT that on November 4,

1996, the Honorable Jerome B. Simandle entered an order

dismissing plaintiff’s Complaint as to all defendants, and,

therefore, this Court is without jurisdiction to decide the instant

motion;

4a

Appendix B

IT IS this 18 day of November, 1996 hereby

ORDERED that the plaintiff's motion is DISMISSED.

s/ Robert B. Kugler

ROBERT B. KUGLER

United States Magistrate Judge

Sa

APPENDIX C — OPINION AND ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE DISTRICT OF

NEW JERSEY FILED NOVEMBER 4, 1996

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

Civil Action

No. 96-3496 (JBS)

MICHAEL LLOYD,

Plaintiff,

V.

RONALD LEVINE, Assistant United States Attorney, HARVEY

BARTLE, III, United States District Judge, JOHN HURLEY,

Warden, RICKY MCINTOSH, Unit Manager, WILLIAM

LANGEHENNIG, Acting Unit Manager, FRANK

GALLAGHER, Federal Bureau of Investigation Special Agent,

Defendants.

ORDER

This matter having come before the Court upon the motion

of plaintiff for a preliminary injunction, as well as upon the

motion of defendants for summary judgment; and the Court

having considered the submissions of the parties; and the Court

having heard oral argument on October 21, 1996; and for the

reasons stated in the Opinion of today’s date;

IT IS this 4th day of November 1996, hereby

ORDERED that plaintiff’s motion for a preliminary

injunction is hereby DENIED; and it is

6a

Appendix C

FURTHER ORDERED that the Complaint against

defendants Ronald Levine and Frank Gallagher is DISMISSED

for lack of personal jurisdiction; and it is

FURTHER ORDERED that defendants Harvey Bartle, III,

and Ronald Levine are entitled to absolute immunity from this

suit and the claims against them are DISMISSED with

prejudice; and is

FURTHER ORDERED that al! defendants’ motions for

summary judgment are hereby GRANTED.

s/ Jerome B. Simandle

JEROME B. SIMANDLE

United States District Judge

7a

Appendix C

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

Civil Action

No. 96-3496 (JBS)

MICHAEL LLOYD,

Plaintiff,

Vv.

RONALD LEVINE, Assistant United States Attorney, HARVEY

BARTLE, III, United States District Judge, JOHN HURLEY,

Warden, RICKY MCINTOSH, Unit Manager, WILLIAM

LANGEHENNIG, Acting Unit Manager, FRANK

GALLAGHER, Federal Bureau of Investigation Special Agent,

Defendants.

APPEARANCES:

Mary R. Machulsky, Esquire

525 Main Street

Sewell, N.J. 08080

Attorney for Plaintiff

James B. Clark, III

Assistant United States Attorney

Office of the United States Attorney

402 East State Street, Room 502

Trenton, N.J. 08608

Attorneys for Defendants

SIMANDLE, District Judge:

8a

Appendix C

Plaintiff, Michael Lloyd, who is currently incarcerated,

seeks an order compelling the Federal Bureau of Prisons

(“BOP”) to grant him placement at a Community Confinement

Center (“CCC”) for the final six months of his prison term. He

also brings Bivens claims against various government officials

who allegedly deprived plaintiff of his alleged right to CCC

placement. The defendants in this case are Ronald Levine,

Assistant United States Attorney for the Eastern District of

Pennsylvania; the Honorable Harvey Bartle, III, United States

District Judge for the Eastern District of Pennsylvania; John

Hurley, Warden, FCI - Fort Dix; Ricky McIntosh, Unit Manager,

FCI - Fort Dix; William Langehennig, Acting Unit Manager,

FCI - Fort Dix; and Special Agent Frank Gallagher of the F.B.I.

Presently before the Court are: 1) plaintiff’s application for a

preliminary injunction compelling CCC placement; and 2)

defendants’ cross-motion for summary judgment.

These motions present interesting issues of whether a

federal inmate has a right to placement in a community

confinement center if he meets the eligibility criteria of 18

U.S.C. § 3624(c)', whether a decision denying early release to

community confinement is barred from judicial review under

18 U.S.C. § 36257, whether judicial and law enforcement

1. 18 U.S.C. § 3624(c) provides, in part: “The Bureau of Prisons

shall, to the extent practicable, assure that a prisoner serving a term of

imprisonment spends a reasonable part, not to exceed six months, of the

last 10 per centum of the term to be served under conditions that will

afford the prisoner a reasonable opportunity to adjust to and prepare for

the prisoner’s re-entry into the community.”

2. 18 U.S.C. § 3625 states: “The provisions of sections 554 and

555 and 701 through 706 of title 5, United States Code, do not apply to

the making of any determination, decision, or order under this subchapter.”

PD eID DA COE NOPE LI IE ET

CONS Di cali Nie! Si AE aR MAS At AP AE RE ES Me

2) cea te tk DR

nd UA im ations DEB tS De Vl. Cle

9a

Appendix C

officials who allegedly participate in a Bureau of Prisons

decision to deny early release are immune from suit, and whether

the evidence in this case can support plaintiff’s claim that he

was denied early placement in retaliation for filing a petition

attacking his conviction in federal court.

This Court denied plaintiff's ex parte request for a

temporary injunction by Memorandum Order filed August 16,

1996. The preliminary injunction hearing was scheduled for

October 21, 1996, as plaintiff’s counsel did not promptly serve

some of the defendants with the Complaint and its exhibits,

together with this Court’s Memorandum Order, as required by

that Order, until about September 11, 1996. In any event, the

defendants were able to submit their opposition to plaintiff’s

preliminary injunction motion on September 30, 1996, together

with their notice of cross-motion accompanied by Declarations

of Judge Bartle, A.U.S.A. Levine, Special Agent Gallagher,

Alberto Munguia, Warden John Hurley, William Langehennig,

and Ricky McIntosh. Plaintiff filed a rebuttal certification on

October 11, 1996, with attached exhibits A through HH.

Similarly, plaintiff’s counsel, Mary Machulsky, filed her rebuttal

certification on October 11, 1996. Also before the Court is the

certification of A.U.S.A. James Clarke, dated October 15, 1996.

Lastly, at the Court’s request at the preliminary injunction

hearing, in order to afford plaintiff the possible benefit of

information from his own file and to ensure that the record is

complete in this case’, a supplemental Declaration dated October

3. In addition to supplying numerous documents in the record at

the hearing on October 21, 1996, plaintiff's counsel argued that she needed

to inspect her client’s central prison file to seek documents of additional

contacts by defendants with prison authorities concerning consideration

of plaintiff's CCC placement. This Court granted plaintiff’s request and

compelled the BOP’s inspection and immediate disclosure of any further

(Cont'd)

10a

Appendix C

23, 1996, has been submitted by Mr. Munguia, a supplemental

Declaration dated October 22, 1996, has been submitted by Mr.

Langehennig, and a supplemental Declaration dated October 25,

1996, has been submitted by Ms. Machulsky. All of these

documents, together with the arguments of counsel on October

21, 1996, constitute the record in this case.

The following represent the Court’s findings pursuant to

Rule 52(a), Fed. R. Civ. P., with respect to plaintiff’s motion for

a preliminary injunction, and pursuant to Rule 56, Fed. R. Civ.

P., with respect to defendants’ motion for summary judgment.

Background

Lloyd is currently in prison, confined at the Federal

Correction Institution at Fort Dix, N.J., for having violated

federal securities laws. On August 4, 1992, Mr. Lloyd was

sentenced to a term of seven years imprisonment, subsequently

reduced to 63 months, plus three years of supervised release

and an order for restitution to the victims of his multi-million

dollar crimes, in the amount of $4.6 million. The S.E.C. has

also obtained a civil judgment against Lloyd. Lloyd’s term of

incarceration is scheduled to end in March 1997, assuming his

(Cont'd)

relevant communications regarding this issue in plaintiff's central file.

The inspection took place on October 22, 1996, and was unproductive of

any new information. The Court had granted this expedited discovery in

response to plaintiff's counsel's request for same, premised upon her

belief, conveyed by plaintiff to her, that he had seen additional documents

in his prison file. In any event, no other discovery was portrayed by

plaintiff as necessary for plaintiff's ability to oppose the defendants’ cross-

motion for summary judgment, and no affidavit to that effect was filed

under Rule 56(f), Fed. R. Civ. P., and the summary judgment motion is

thus ripe for adjudication.

lla

Appendix C

continued eligibility for good-time credits. On or about May

22, 1996, plaintiff filed a petition for relief from his conviction

under 18 U.S.C. § 2255 in the Eastern District of Pennsylvania,

Civil Action 96-3876, which was assigned to Judge Bartle. The

§ 2255 petition raises grounds of double jeopardy arising from

previous forfeiture actions taken against Lloyd by the S.E.C.

(After plaintiff filed this suit against Judge Bartle, the Judge

recused himself and the § 2255 petition was reassigned to Judge

Norma Shapiro by Order of Chief Judge Edward Cahn, prior to

September 5, 1996, when Judge Shapiro wrote to Mr. Lloyd

and A.U.S.A. Levine. As discussed below, there is no reason to

believe the Bureau of Prisons officials named in this case were

even aware of plaintiff's § 2255 petition before they decided

that Lloyd would not receive CCC placement in early July 1996.)

In March 1996, a team of prison officials recommended

that Lloyd be placed in a Community Confinement Center for

the final 180 days of his sentence. By June 14, the unit team

was considering 90-120 days early placement to a CCC, and

Warden Hurley invited Judge Bartle’s views and comments on

CCC placement of Lloyd. (See Hurley Letter of June 14, 1996).

Judge Bartle, who was the sentencing judge in plaintiff’s

criminal case, responded by letter of June 26, 1996, Stating that

in Judge Bartle’s view, plaintiff “does not need to be placed in a

Community Corrections Center in order to ease his return to

civilian life . . . [nor] in order to ‘reestablish’ or to ‘strengthen’

family ties.” (Bartle Letter of June 26, 1996). His letter noted

that Lloyd had received three furloughs for these purposes, as

Warden Hurley’s letter of June 15, 1996, had stated. After

receiving the letter from Judge Bartle that was strongly opposed

to granting plaintiff any CCC time, the prison officials informed

Lloyd that he was not eligible for CCC placement, as the unit

team had reevaluated the case and amended its prior

12a

Appendix C

recommendation, this time denying CCC placement due to the

number of Lloyd’s victims, the severity of offense, and the

sentencing court’s concerns. (See McIntosh Declaration at { 7;

Langehennig Declaration at { 4). Warden Hurley, who is the

approving official for all halfway house recommendations at

Fort Dix (see Hurley Declaration at J 4), concurred in the unit

team’s change of position.

Lloyd claims that the denial of CCC placement was carried

out by Judge Bartle and various other government officials to

retaliate against Lloyd for bringing a habeas petition and

contesting certain actions of the S.E.C. relating to forfeiture of

Lloyd’s property. In an affidavit, Judge Bartle explains that such

retribution was not his motive, and that he felt that: 1) Lloyd

was not in need of CCC time in order to ease his transition back

into society; and 2) Lloyd had committed serious crimes for

which he should serve a full sentence in prison. For their part,

defendant prison officials explain that Judge Bartle’s opinion

caused them to re-examine their earlier conclusions, and led

them to believe that CCC placement would not be appropriate

in this case. Moreover, each of the three BOP officials was

unaware of plaintiff’s § 2255 action or challenge, if any, to the

S.E.C. judgment. (McIntosh Declaration at J 3; Hurley

Declaration at J 3; Langehennig Declaration at ¥ 3). The two

remaining defendants, Special Agent Gallagher and A.U.S.A.

Levine, have no recollection of having any input in the CCC

determination. While Gallagher specifically denies such contact

(see Gallagher Declaration {J 6-7), A.U.S.A. Levine recalls no

such contact but states that it is possible that he could have voiced

the position of the U.S. Attorney’s Office that Lloyd’s release

to community confinement would be inappropriate because of

his huge outstanding unpaid restitution obligation. (Levine

Declaration at JJ 7-8).

13a

Appendix C

Discussion

I. Plaintiff's Motion for a Preliminary Injunction

The granting of a preliminary injunction is an extraordinary

remedy “which should be granted only in limited circumstances.”

Frank’s GMC Truck Center. Inc. v. G.M.C., 847 F.2d 100, 102

(3d Cir. 1988); see Driscoll Potatoes. Inc. v. N.A. Produce Co.,

Inc., 765 F. Supp. 174, 176 (D.N.J. 1991). In order to prevail on

a request for a preliminary injunction, the movant must

demonstrate: (1) that the party will suffer irreparable injury if

the relief is not granted; (2) that there exists a reasonable

probability of success on the merits in the underlying litigation;

(3) that other interested parties will not suffer substantial harm

if the injunctive relief is granted; and (4) that the injunctive relief

would serve the public interest. See Acierno v. New Castle

County, 40 F.3d 645, 653 (3d Cir. 1994); S & R Corp. v. Jiffy

Lube Int’l, Inc., 968 F.2d 371, 374 (3d Cir. 1992); Instant Air

Freight Co. v. C.V. Air Freight, Inc., 882 F.2d 797, 800 (3d Cir.

1989); Apollo Technologies Corp. v. Centrosphere Indus. Corp.,

805 F. Supp. 1157, 1191 (D.N.J. 1992).

Failure to demonstrate either of the first two requirements,

a likelihood of success on the merits and irreparable injury, “must

necessarily result in the denial of a preliminary injunction.” Jn

re Arthur Treacher’s Franchisee Litigation, 689 F.2d 1137, 1143

(3d Cir. 1982). Furthermore, “[a]ll four factors should favor

preliminary relief before the injunction will issue.” S & R Corp.,

968 F.2d at 374 (citing Bill Blass, Ltd. v. Saz Corp., 751 F.2d

152, 154 (3d Cir. 1984)).

As noted, in this case, plaintiff has moved for a preliminary

injunction compelling the Bureau of Prisons to grant plaintiff

l4a

Appendix C

CCC placement. That motion is deniej because plaintiff has

not demonstrated a likelihood of succes on the merits in this

litigation. In fact, the evidentiary itemsjn the record persuade

the Court that summary judgment in faor of the defendants is

appropriate in this case. The reasons belind that conclusion are

explained in the following section of ths Opinion.

II. Defendants’ Motion for Summary Jidgment

A. Summary Judgment Standard

The standard for granting summaryjudgment is a stringent

one. A court may grant summary jug@ment only when the

materials of record “show that there isno genuine issue as to

any material fact and that the movitg party is entitled to

judgment as a matter of law.” Fed. R. Cy. P. 56(c). In deciding

whether there is a disputed issue of matrjal fact the court must

view the evidence in favor of the non-moing party by extending

any reasonable favorable inference to hat party. See Aman v.

Cort Furniture Rental Corp., 85 F.3d 074, 1080-81 (3d Cir.

1996); Kowalski v. L & F Prods., 82 F3d 1283, 1288 (3d Cir.

1996); Meyer v. Riegel Prods. Corp., 72) F.2d 303, 307 n.2 (3d

Cir. 1983), cert. denied, 465 U.S. 1091(1984). The threshold

inquiry is whether there are “any gentine factual issues that

properly can be resolved only by a fingér of fact because they

may reasonably be resolved in favor of :ither party.” Anderson

v. Liberty Lobby Inc., 477 U.S. 242, 25( (1986).

Supreme Court decisions mandite that: “[w]hen the

nonmoving party bears the burden of )ersuasion at trial, the

moving party may meet its burden on summary judgment by

showing that the nonmoving party’s evilence is insufficient to

carry its burden of persuasion at trial.” 3rewer v. Quaker State

15a

Appendix C

Oil Refining Corp., 72 F.3d 326, 329-330 (3d Cir. 1995) (citing

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1987)). However,

“the nonmoving party creates a genuine issue of material fact if

it provides sufficient evidence to allow a reasonable jury to find

for him at trial.” Brewer, 72 F.3d at 330 (citing Anderson, 477

U.S. at 248). Once the moving party has carried its burden of

establishing the absence of a genuine issue of material fact, “its

opponent must do more than simply show that there is some

metaphysical doubt as to material facts.” Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Thus, if

the non-movant’s evidence is merely “colorable” or is “not

significantly probative,” the court may grant summary judgment.

Anderson, 477 U.S. at 249-50.

B. The Merits of Defendants’ Summary Judgment Motion

Defendants offer three reasons why summary judgment

should be granted to defendants in this case. First, defendants

assert that this Court does not have personal jurisdiction over

plaintiff’s claims against Judge Bartle, A.U.S.A. Levine, or

Special Agent Gallagher. Defendants also contend that they are

either qualifiedly or absolutely immune from plaintiff’s suit.

As to the merits of plaintiff’s causes of action, defendants argue

that they violated neither the Administrative Procedure Act, see

5 U.S.C. § 551 et. seg., nor any constitutional provision in

denying plaintiff’s request for CCC placement. These

contentions will be addressed in turn.

1]. Personal Jurisdiction

Defendants contend that Judge Bartle, Prosecutor Levine,

and Special Agent Gallagher all live and work outside of New

Jersey and do not have the minimum contacts with New Jersey

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that would enable this Court to exercise jurisdiction over those

defendants.

A federal court may assert jurisdiction over a defendant to

the extent authorized by the law of the state in which the federal

court sits. Carteret Savings Bank. v. Shushan, 954 F.2d 141, 145

(3d Cir.), cert. denied, 506 U.S. 817 (1992). Under New Jersey

law, courts may assert jurisdiction over a person to the limits

permitted by the Due Process Clause of the Constitution. /d.

Thus, the jurisdiction question in this case is to be guided by

traditional notions of fair play and substantial justice. See

International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).

Plaintiff bears the burden of establishing by a preponderance of

the evidence facts sufficient to establish personal jurisdiction.

Through sworn affidavits or other competent evidence, plaintiff

must establish with reasonable particularity the extent of

defendants’ contacts with the state of New Jersey. See Patterson

v. F-B.1., 893 F.2d 595, 603-04 (3d Cir.), cert. denied, 498 U.S.

812 (1990).

We will assume for purposes of these motions that plaintiff

has successfully demonstrated that Judge Bartle’s contacts with

the state of New Jersey enable this Court to exercise personal

jurisdiction over that defendant. In his Declaration, Judge Bartle

acknowledges communicating with BOP officials in New Jersey

about plaintiff’s CCC placement, both on the telephone and

through written correspondence. (Bartle Declaration at ¥ 5).

Those same communications to the BOP officials, who were

located in New Jersey at the time of the communications, form

the basis of plaintiff’s claims against Judge Bartle. ‘Shus, because

plaintiff’s claims against Judge Bartle arise from Judge Bartle’s

New Jersey-related activities, it can be assumed that this Court

has “specific jurisdiction” over plaintiff’s case against that

defendant. See Reliance Steel Prods. Co. v. Watson, Ess,

¢

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Marshall & Enggas, 675 F.2d 587, 588 (3d Cir. 1982). We do

not reach the issue of Judge Bartle’s amenability to personal

jurisdiction in the District of New Jersey, however, because other

defenses are dispositive of all claims against Judge Bartle.

Plaintiff has not established that defendants Levine and

Gallagher had such minimum contacts with New Jersey. In their

unrebutted affidavits, both of those defendants deny having any

substantial, general contact with New Jersey, and neither recall

having any contact with BOP officials regarding CCC placement

for plaintiff. (Gallagher Declaration at JJ 6-7; Levine

Declaration at JJ 7-8). Neither Special Agent Gallagher nor

A.U.S.A. Levine reside in New Jersey, own real property in New

Jersey, or operate a business in New Jersey. (Gallagher

Declaration at J 8; Levine Declaration at J 11). Moreover, a

search of plaintiffs central file at FCI - Fort Dix, recently ordered

by this Court, confirmed that neither Special Agent Gallagher

nor A.U.S.A. Levine have had any contact with the prison

concerning plaintiff during the period in question (since March

1996, when officials first considered the issue of plaintiff’s CCC

placement). (Supplemental Munguia Declaration at JJ 3-4).

Plaintiff thus has not pointed to any evidence that indicates that

sufficient contacts exist between New Jersey and these two

defendants to justify exercising jurisdiction over those persons,

and the Complaint against them must be dismissed.

In addition, as will be discussed in the following two

sections of this Opinion, even if the Court had personal

jurisdiction over defendants Levine and Gallagher, those parties

would nonetheless be entitled to summary judgment in this case.

2. Immunity_

Defendants argue that because they are governmental actors,

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they are immune from the causes of action brought by plaintiff

in this case.

Defendants first contend that Judge Bartle is absolutely

immune from plaintiff’s suit under the doctrine of judicial

immunity. It is well-established that judicial officers enjoy

absolute immunity from suits against them that are based on

actions taken in their judicial capacity. The Supreme Court has

consistently ruled that “ ‘judges of courts of superior or general

jurisdiction are not liable to civil actions for their judicial acts,

even when such acts are in excess of their jurisdiction, and are

alleged to have been done maliciously or corruptly.’ ” Stump v.

Sparkman, 435 U.S. 349, 355-56 (1978) (quoting Bradley v.

Fisher, 13 Wall. 335, 351 (1872)); see Forrester v. White, 484

U.S. 219 (1988); Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982).

“A judge is absolutely immune from liability for his judicial

acts even if his exercise of authority is flawed by the commission

of grave procedural errors.” Stump, 435 U.S. at 359.

Judge Bartle is absolutely immune from plaintiff's suit in

this case because the allegedly improper opinions offered by

Judge Bartle constituted a “judicial act” on the part of the judge.

Judge Bartle merely offered a sentencing-related opinion

concerning a defendant who Judge Bartle himself had originally

sentenced. Indeed, the BOP’s guidelines explicitly mention that,

in some cases, the sentencing judge should have a role in the

CCC-placement determination, see P.S. 7310.01 ¥ 6a (1993),

mandating judicial contact if the warden is considering an

extended period of early CCC placement, recognizing that the

sentencing judge’s expectations about the sentence he or she

imposed are relevant to the warden’s determination. Plaintiff is

precluded from recovering damages from Judge Bartle based

on these judicial acts carried out by the Judge. The Court holds

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that the Complaint against Judge Bartle should be dismissed in

its entirety on grounds of judicial immunity.

Defendants argue that A.U.S.A. Levine and Special Agent

Gallagher are also entitled to absolute immunity in this case.

Defendants accurately note that prosecutors such as defendant

Levine enjoy absolute immunity for their activities that are

“intimately associated with the judicial phase of the criminal

process.” Imbler v. Pachtman, 424 U.S. 409, 430 (1976). For _

example, in Jmbler, the Supreme Court affirmed the dismissal

of a § 1983 suit against a district attorney who was alleged to

have knowingly used perjured testimony. The Court held that

“in initiating a prosecution and in presenting the State’s case,

the prosecutor is immune from a civil suit for damages under

§ 1983.” Id. at 431; see Rose v. Bartle, 871 F.2d 331, 343 (3d

Cir. 1989); Hauptmann v. Wilentz, 570 F. Supp. 351, 366 (D.N.J.

1983) (citing cases), aff'd, 770 F.2d 1070 (3d Cir. 1985), cert.

denied, 474 U.S. 1103 (1986). However, this absolute immunity

extends only to actions taken by the prosecutor “in his role as

advocate for the State,” and not to actions taken in an

administrative or investigative capacity. Burns v. Reed, 500 U.S.

478, 491 (1991).

In this case, prosecutor Levine’s alleged sentencing

recommendation was official conduct that is “intimately

associated with the judicial phase of the criminal process,” and

not an administrative duty. Jmbler, 424 U.S. at 430. Like a

prosecutor’s sentencing recommendation, the post-conviction

recommendation should be protected by absolute immunity, to

assure the vitality of such prosecutorial interest and information.

Moreover, it is evident that the alleged action was taken as part

of defendant Levine’s role as an advocate for the United States.

As discussed in Jmbler, there are sound public policy reasons

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for ensuring that prosecutors are protected from unfounded

litigation that stems from the carrying out of prosecutorial

“public duties” such as offering a sentencing recommendation

to a court. See id. at 422-27. Similar reasoning demands that

prosecutors be absolutely immune from liability stemming from

sentencing recommendations concerning CCC placement. Thus,

even if the Court accepts plaintiff’s factual allegations as true,

defendant Levine is immune from plaintiff’s claims, and the

Complaint against defendant Levine will be dismissed.

There is no legal authority, however, for granting such

absolute immunity to Special Agent Gallagher. As defendants

note, the Supreme Court has stated that administrative employees

are absolutely immune from suit where their duties make them

functionally equivalent to judicial officials who possess absolute

immunity. See Butz v. Economou, 438 U.S. 478, 511-16 (1978).

This immunity, however, was intended for persons such as

administrative law judges and prosecutors, not law-enforcement

officials who investigate crimes and volunteer an opinion

concerning the appropriate sentence for a particular defendant.

See Graham vy. United States, 528 F. Supp. 933, 939 (E.D. Pa.

1981). Defendant Gallagher is entitled only to qualified

immunity. Similarly, the BOP defendants (Hurley, McIntosh,

and Langehennig) are afforded only qualified immunity in the

exercise of their discretionary functions.

The qualified immunity doctrine provides that “government

officials exercising discretionary functions generally are shielded

from liability for civil damages insofar as their conduct does

not violate clearly established statutory or constitutional rights

of which a reasonable person would have known.” Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982). The qualified immunity

determination requires the court to perform a two-pronged

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inquiry, as outlined in Siegert v. Gilley, 500 U.S. 226 (1991).

First, the court must ascertain whether the plaintiff has alleged

conduct that rises to the level of a violation of a constitutional

right, and second, the court must determine whether the law

was Clearly established at the time of the alleged constitutional

breach. Jd. at 231-32.

In this case, the Court will assume for the sake of argument

that if the denial of CCC placement for plaintiff was based on

plaintiff’s filing of a habeas petition, such a denial would indeed

constitute a violation of a clearly established constitutional right

to be free from retaliation for exercising the right of access to

the courts. Even if the Court makes the assumption that

defendants are not entitled to qualified immunity in this case,

plaintiff’s claims against defendants fail on the merits because,

as discussed infra, the documents before the Court so

convincingly demonstrate that plaintiff has not provided

sufficient evidentiary support for the factual allegations

contained in his Complaint.

3. The Decision to Deny Plaintiff CCC Placement in this

Case

At the outset, we address the issue whether the decision of

FCI - Fort Dix to deny Lloyd’s placement into the community is

judicially reviewable. We find, for two reasons, that this

determination will not generally be reviewable absent violation

of a supervening constitutional right. First, Congress has

determined that the grant or denial of the special community

confinement status conferred by 18 U.S.C. § 3624(c) lies within

the sole unreviewable discretion of the Federal Bureau of

Prisons; § 3624(c) itself is permissive, leaving to the BOP the

determination of what sort of confinement will afford the

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prisoner the reasonable opportunity to prepare for entry back

into the community. Community confinement itself is not

mentioned in the subsection and is only one option, as is

continued confinement in prison. The BOP regulations likewise

are permissive and highly discretionary, indicating that the

Warden “may” refer inmates for suitable placement. If that were

all that existed by way of statute and regulation, this Court would

be well-justified in finding that only the BOP’s abuse of

discretion could trigger judicial review. But Congress has

removed all doubt, since 18 U.S.C. § 3625 precludes judicial

review under the Administrative Procedures Act for

determinations made pursuant to § 3624(c). Although the

foreclosure of judicial review of agency action does not deprive

the Court of jurisdiction to examine whether the decision

violated a right of constitutional dimension, see Webster v. Doe,

486 U.S. 592, 603 (1987); Califano v. Sanders, 430 U.S. 99,

109 (1976), we hold that Congress has foreclosed review of

§ 3624(c) decisions on grounds such as whether they are

arbitrary, capricious, or unsupported by substantial evidence.

See Lyle v. Siviey, 805 F. Supp. 755 (D. Ariz. 1992).* Accordingly,

the Court need address only plaintiff's allegation that defendants’

conduct violated his constitutional rights.

Plaintiff first contends that defendants’ actions in this case

violated plaintiff's constitutional right to equal protection of

the laws. Because plaintiff does not allege that he is a member

of a protected class, plaintiff's equal protection claims may

succeed only if plaintiff is able to show that defendants had no

4. Plaintiff's citation of two contrary unpublished cases, namely

Peliandini v. Warden Harvey Cox, No. 89-5929-MRP (JR) (C.D. Cal. Dec.

28, 1989) and Spelz v. Floyd, No. CV-91-1387 (SVW) (EX) (C.D. Cal.

1991), is unavailing, since the discretionary wording of the statute creates

no expectation of CCC placement.

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rational basis for their conduct in this case. See Heller v. Doe,

509 U.S. 312, 319-20 (1993); United States v. Hawkins, 811

F.2d 210, 216 (3d Cir.), cert. denied, 484 U.S. 833 (1989).

Defendants may defeat plaintiff’s equal protection claim merely

by presenting to the Court “any reasonably conceivable state of

facts that could provide a rational basis for [defendants’ ]

classification” of plaintiff in this case. Heller, 509 U.S. at 320.

As previously noted, the unrebutted evidentiary materials

before the Court reveal that two factors led to the denial of

plaintiff’s request for community placement: 1) the severity of

the underlying offense; and 2) the views of the sentencing judge,

especially his opinion that plaintiff does not need halfway-house

placement to ease his transition back into society. BOP officials

concurred that, in view of plaintiff’s strong family ties and job

prospects, CCC placement would not be appropriate in this case.

This evidence thus demonstrates that there was a rational and

substantial basis for denying CCC placement to plaintiff.

Plaintiff’s equal protection claims are patently without merit.

Plaintiff also claims that defendants infringed on plaintiff's

constitutional right of access to the courts. See Hoeber ex. rel

NLRB v. Local 30, United Slate Workers Ass’n, 939 F.2d 118,

126 (3d Cir. 1991). Plaintiff argues that by causing plaintiff’s

furloughs to be cancelled and by denying plaintiff’s request for

CCC placement, defendants have hindered plaintiff’s ability to

prepare an effective habeas attack of his criminal conviction.

Again, however, plaintiff has failed to submit evidentiary

materials that demonstrate that defendants’ conduct was

improper. While plaintiff could set forth a claim of constitutional

dimension if he showed that defendants denied plaintiff CCC

placement in retaliation for plaintiff's filing of a habeas petition,

see Penrod v. Zavaras, 94 F.3d 1399, 1404 (10th Cir. 1996),

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there is no evidentiary basis on which to find that defendants

were indeed driven by such a desire to retaliate. The unrebuited

affidavits and declarations before the Court indicate that

plaintiff’s request for community placement was denied for good

cause, and not to punish defendant for filing a habeas petition

or otherwise invoking his right of access to the courts.

Indeed, William Langehennig and Ricky McIntosh both note

that they were not even aware that plaintiff had filed a habeas

petition until they were served with process in this case.

(Langehennig Declaration at { 3; McIntosh Declaration at { 3).

Moreover, as noted, the record provides no basis for concluding

that A.U.S.A. Levine or Special Agent Gallagher ever offered

an opinion or had any input concerning plaintiff's request for

community placement. (Gallagher Declaration at J 7; Levine

Declaration at J; Munguia Supplemental Declaration at {J 3-4).

Judge Bartle obviously had a substantial impact on the

decision to deny plaintiff’s request for CCC placement. However,

Judge Bartle’s reasons for concluding that CCC placement would

be inappropriate in this case, see supra, are supported by the

record and constitute permissible justification for denying

plaintiff's request by the BOP. Although plaintiff suggests that

it is inappropriate for the sentencing judge to play a role in the

community-placement determination, nothing in the

Administrative Procedure Act or the BOP’s regulations supports

such a view. In fact, the BOP regulations explicitly contemplate

solicitation of the sentencing judge’s opinion in certain instances

involving potential CCC placement, as mentioned above, for

placements planned to exceed six months. See P.S. 7310.01

{ 6a. In the view of this Court, such involvement on the part of

the sentencing judge should be encouraged, especially since the

sentencing judge often possesses knowledge of the offender and

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his criminal convictions beyond that possessed by prison

officials. In this case, the record does not permit a reasonable

factfinder to conclude that any defendant violated plaintiff’s right

to access to the courts by seeking, receiving, and considering

Judge Bartle’s views.

Plaintiff’s final constitutional claim is that the denial of

plaintiff’s request for CCC placement amounted to a second

punishment of plaintiff in violation of the Double Jeopardy

Clause. That contention is obviously without merit. Denial of

CCC placement is a denial of a benefit to a prisoner, not an

imposition of further punishment, and lies well within the

punishment initially imposed.

Conclusion

Plaintiff’s motion for a preliminary injunction is denied and

defendants’ motion for summary judgment is granted because

the decision to deny plaintiff CCC placement is not judicially

reviewable absent a constitutional violation, and no reasonable

factfinder could conclude that there has been such a

constitutional violation in this case. In addition, this Court does

not have personal jurisdiction over defendant Levine or

defendant Gallagher. Lastly, defendant Bartle and defendant

Levine are absolutely immune from the causes of action brought

by plaintiff in this case.

The accompanying Order is entered, dismissing plaintiff's

Complaint as to all defendants.

s/ Jerome B. Simandle

JEROME B. SIMANDLE

U.S. District Judge