Sun v. U.S., Civil Action File No. 1:03-CV-3552-TWT.

• Decision Date: 22 October 2004
• Docket Number: Civil Action File No. 1:03-CV-3552-TWT.
• Citation: 342 F.Supp.2d 1120
• Parties: Joseph C. SUN, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Northern District of Georgia

342 F.Supp.2d 1120

Joseph C. SUN, Plaintiff, v. UNITED STATES of America, Defendant.

Civil Action File No. 1:03-CV-3552-TWT.

United States District Court, N.D. Georgia, Atlanta Division.

October 22, 2004.

COPYRIGHT MATERIAL OMITTED

Joseph C. Sun, Savannah, GA, pro se.

Robert David Powell, Office of United States Attorney Northern District of Georgia, Atlanta, GA, for Defendant.

ORDER

THRASH, District Judge.

This is a pro se civil rights action in which the Plaintiff seeks to set aside his criminal conviction. It is before the Court on the Plaintiff's Motion for Default Judgment [Doc. 4] and the Defendant's Motion to Dismiss Complaint [Doc. 7]. For the reasons set forth below, the Court DENIES the Plaintiff's Motion for Default Judgment and GRANTS the Defendant's Motion to Dismiss Complaint.

I. BACKGROUND

In 1986, Plaintiff Joseph C. Sun was indicted for forgery of a court order and for two counts of mail fraud. In 1987, he was convicted of all three counts and sentenced to 15 years imprisonment. While incarcerated, the Plaintiff repeatedly challenged his conviction, filing an appeal to the Eleventh Circuit Court of Appeals, a motion for a new trial, and numerous motions to vacate his conviction under 28 U.S.C. § 2255. His conviction was upheld, the motion for a new trial was denied, and each collateral attack was denied.

The Plaintiff completed service of his sentence in December 2001. On November 10, 2003, he filed this civil rights action against the United States, alleging that his conviction violated his First, Fifth, and Fourteenth Amendment rights. In his complaint, the Plaintiff alleges that: (1) he was wrongfully detained prior to his trial, which prevented him from adequately preparing his defense; (2) he was not allowed to testify at trial; (3) the government failed to disclose exculpatory evidence; (4) the government presented perjured testimony from witnesses with a personal animus toward the Plaintiff; and (5) he was punished because he had an extensive history of filing pro se lawsuits and was disliked by judges. On those grounds, the Plaintiff asks the Court to set aside his conviction or grant a new trial. The Plaintiff moves for entry of default judgment on the grounds that the United States failed to answer. The United States alleges that service of process was defective and, therefore, it was not required to answer. Additionally, the United States moves to dismiss the action for failure to state a claim and insufficient service of process.

II. DISCUSSION

A. Motion for Default Judgment

The Plaintiff moves for a default judgment against the United States for failure to answer. The United States must answer a complaint within 60 days of the complaint being served upon the United States Attorney. Fed.R.Civ.P. 12(a)(3)(A). Thus, the period in which to answer does not begin to run until the United States Attorney is properly served pursuant to Rule 4(i). In order to effect proper service upon the United States, a plaintiff must: (1) deliver a copy of the summons and complaint to the United States Attorney for the district in which the action is brought, or send copies of each by registered or certified mail, addressed to the civil process clerk at the office of the United States Attorney; and (2) send a copy of the summons and complaint to the Attorney General of the United States by registered or certified mail. Fed.R.Civ.P. 4(i)(1)-(2).

In construing their pleadings, the courts afford pro se litigants some leniency.¹ Nevertheless, pro se litigants have been consistently required to comply strictly with procedural rules. See, e.g., McNeil v. United States, 508 U.S. 106, 113, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993) ("[W]e have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel."); Loren v. Sasser, 309 F.3d 1296, 1304 (11th Cir.2002) ("Despite construction leniency afforded pro se litigants, we nevertheless have required them to conform to procedural rules."). Therefore, as with litigants represented by counsel, the Court will hold the Plaintiff to the service of process requirements clearly stated in Rule 4. See DiCesare v. Stuart, 12 F.3d 973, 980 (10th Cir.1993) ("A pro se litigant is still obligated to follow the requirements of Fed.R.Civ.P. 4.").

Although the Plaintiff correctly served the Attorney General through certified mail, he failed to effect proper service upon the United States Attorney for several reasons. First, the Plaintiff sent the summons and complaint through the regular mail rather than by registered or certified mail. (Def.'s Resp. in Opp'n to Pl.'s Mot. for Default J., Ex. 2); See Smith v. Department of the Treasury, Internal Revenue Service, No. 1:96CV-3228-JEC, 1997 WL 406305, *3 (N.D.Ga. Apr.28, 1997) (dismissing claims because process was sent by Express Mail rather than registered or certified mail). Second, the package was not addressed to the civil process clerk, but was instead addressed to the United States Attorney. See Holmstrom v. United States, No. 8:02-CV-2006-T-17MAP, 2003 WL 21254624, *2 (M.D.Fla. Apr.4, 2003). Finally, the Plaintiff failed to send his entire complaint, omitting the 18 exhibits that were incorporated into the complaint. As the Plaintiff failed to comply with Rule 4, the requirement that the United States respond to the complaint has not been triggered. Thus, the United States is not in default, and entry of default judgment is improper.²

Even if the Plaintiff had properly served the United States, a default judgment would not be warranted. Rule 55(e) provides that "[n]o judgment by default shall be entered against the United States or an officer or agency thereof unless the claimant establishes a claim or right to relief by evidence satisfactory to the court." Viewing Rule 55(e) as more restrictive than the typical standard for default, courts have held that entry of default judgment against the United States will not be based simply on a failure to file an answer or responsive pleading. See, e.g., Mason v. Lister, 562 F.2d 343, 345 (5th Cir.1977)³; Simmons v. United States Parole Comm'n, 590 F.Supp. 1221, 1222 (D.D.C.1984); Ross v. United States, 574 F.Supp. 536, 538 (S.D.N.Y.1983); United States v. Zulli, 418 F.Supp. 252, 253 (E.D.Penn.1975). "When the government's default is due to a failure to plead or otherwise defend, the court typically either will refuse to enter a default or, if a default is entered, it will be set aside." 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil § 2702 (3d ed.1998). For the reasons addressed below, the Plaintiff has failed to establish a clear right to relief by satisfactory evidence and is, therefore, not entitled to a default judgment.

B. Motion to Dismiss

The United States moves to dismiss the Plaintiff's claims of alleged violations of his First, Fifth, and Fourteenth Amendment rights. The Fourteenth Amendment only applies to the states, not the federal government. Therefore, any claim the Plaintiff asserts under the Fourteenth Amendment should be dismissed. As to the other claims, a complaint should be dismissed under Rule 12(b)(6) only where it appears beyond doubt that no set of facts could support the plaintiff's claims for relief. Fed.R.Civ.P. 12(b)(6); see Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Linder v. Portocarrero, 963 F.2d 332 (11th Cir.1992). In ruling on a motion to dismiss, the court must accept the facts pleaded in the complaint as true and construe them in the light most favorable to the plaintiff. See Quality Foods de Centro America, S.A. v. Latin American Agribusiness Development Corp., S.A., 711 F.2d 989, 994-95 (11th Cir.1983). Generally, notice pleading is all that is required for a valid complaint. See Lombard's, Inc. v. Prince Mfg., Inc., 753 F.2d 974, 975 (11th Cir.1985), cert. denied, 474 U.S. 1082, 106 S.Ct. 851, 88 L.Ed.2d 892 (1986). Under notice pleading, the plaintiff need only give the defendant fair notice of the plaintiff's claim and the grounds upon which it rests. Id.

The Plaintiff asserts that he is filing this action under Rules 57 and 60(b)(6) of the Federal Rules of Civil Procedure. Rule 60(b) applies only to civil cases. In extremely limited circumstance, Rule 60(b) may be used to set aside a prior judgment denying habeas corpus or other postconviction relief. See Gonzalez v. Secretary for Dept. of Corrections, 366 F.3d 1253, 1278 (11th Cir.2004) (en banc). Rule 60(b) may be used to set aside a prior judgment denying habeas corpus or other postconviction relief in order to correct a clerical error or where there was a fraud upon the federal court that lead to the denial of the habeas corpus petition. Id. However, in those situations, Rule 60(b) is only properly used to attack a procedural defect in the previous postconviction proceeding, not to attack the underlying conviction. Id. at 1277.

A review of the Plaintiff's complaint reveals that he is not seeking relief from a clerical error nor has he alleged facts showing a fraud upon the court in his postconviction proceedings. Rather, the Plaintiff is seeking to collaterally attack his August 1987 criminal conviction. Specifically, the Plaintiff states in his complaint that he wishes to "be allowed to present and have the court consider his case now, sixteen (16) years after his conviction," and he asks the Court to set aside his conviction or grant a new trial. (Compl. at 13.) Rule 60(b) does not provide for relief from judgment under these circumstances, and the Plaintiff's challenge is not properly brought under Rule 60(b). See United States v. Mosavi, 138 F.3d 1365 (11th Cir.1998) (defendant could not challenge criminal forfeiture under Rule 60(b)). The Plaintiff also asks for a declaratory judgment that his conviction is wrongful, pursuant to Federal Rule of Civil Procedure 57. This relief is essentially a motion to...