UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

) ARI BAILEY, ) ) P laintif f, )

) v. ) Civil Action No. 10-463 (RMC) ) ISAAC F ULWOOD, JR., et al., ) ) ) Defendan ts. ) ) MEMORAN DUM OP INION I. Introduction. Plaintiff is curre ntly

imprisoned at United States Penitentiary (USP) Allenwood in Allenwood, Pennsylvania. Plaintiff sues the c hairman, se vera l individual commis sioners, and the

case operations administ rator of the United States Parole Commission (“Commiss ion” or USPC), alleg ing ex post facto application of pa role re gulations to determine his parole suitabilit y , as we ll as Privacy

Act violations reg ardingalleg edly incorre ct information in the Commissi ons’s file on Plaintiff. Defe ndants urg e the Court to construe Plaintiff’s ex post facto claims as a pe tition for a writ of habe as cor

pus and move to dismiss thi s entire a ction with prejudice under F eder al Rule of Civil Procedur e 12(b) (1)–( 2) for lack of jurisdiction and Fe dera l Rule of Civil Procedur e 12(b) (6) for f ailure to state a

claim upon which r elief ma y be g rante d. Be cause the statute of limitations of the Privac y

Act is not jurisdictional, Defe ndants’ ar guments under Rule 12(b) (1) will be construed a s if made unde r Rule 12(b)( 6). B eca use De fenda

nts refe r to matters outside the pleading s with respec t to their statute-of- limit ations argument, the Court will construe that par t ofDef

endants’ motion as a

motion for summary

judgme nt under F eder al Rule of Civil P roce dure 56. In the memora

ndum acc ompany

ing the ir motion, Defenda nts alternatively

sug g est that Plaintiff’s habea s claim may be tra nsfer red to a court with prope r jurisdiction, which sug g estion the Court will acce pt.

II. Stand ards of Review. Def endants see k dismiss al of Plaintiff’s ha beas c laims under F eder al Rule of Civil Procedur e 12(b) (2) f

or lac k of per sonal jurisdiction and Fe dera l Rule of Civil Procedur e 12(b) (6) for f ailure to state a

claim upon which r elief ma y be g rante d, and dismissal of Plaintiff’s Privacy Act cla ims under Fe dera l Rule of Civil Procedur e 12(b) (1) f or lac k of subject- matter jurisdiction and F eder al Rule of Civil P roce dure 12( b)(6) for f ailure to state a

claim upon which r elief ma y be g rante d. SeeDef

s.’ Mot to Dismis s [Dkt.. # 21] (her einaf ter Mot.); Mem. of P. & A. in Supp. of Def s.’ Mot to Dismis s [Dkt. # 21] (her einaf ter Mem.) . Alternatively , Def endants see k transfe r of Plaintiff’s habea s claims “to the fe dera l district of Plainti ff’ s incarc eration.” Mem. at 8.

A. Lack of

Sub jec t-M atte r Jurisdiction, Construed as Failure t o State a Claim . Def endants see k dismiss al of Plaintiff’s Privac y Act cla ims under Rule 12(b)( 1) beca use they alleg e Plaintiff brought such claims af ter the e x piration of the r eleva nt statute of limit ations. Mem. at 17. Howe ver, in this Circuit, “the statute of limitations period set for th in 5 U.S.C. § 552a(g )(5) is not a jurisdictional bar .” Kursar v. Transpor tation Sec. Admin. , No. 07- cv-2001, 2010 WL4721304, *7 (D.D.C. Nov. 22, 2010) (citing Chung v. U.S. De p’t of Justice , 333 F.3d 273, 278 n.* ( D.C. Cir. 2003)) (e mphasis added) . Instead, “ the appr opriate ‘ proce dural mecha nism for consider ing [the def endant’ s] s tatute of limitations argument at this stage of the

-2-proce eding s is Rul e 12(b) (6).’ ” Id. (quoting W illiams v. Chu , 641 F. Supp. 2d 31, 34 (D.D .C. 2009)) ( alteration in original). A ccor dingly , the Court will consider De fenda nts’ Rule 12(b)(1) arguments as thoug h made unde r Rule 12(b)( 6).

B. Lack of

P ersonal Jurisdiction. On a motion to dismi ss under Rule 12(b) (2), a plaintiff bea

rs the burde n of establishing a

fac tual basis for the c ourt’s exercise of per sonal jurisdiction over a de fenda nt. Crane v. N.Y

. Zoological Soc'y , 894 F.2d 454, 456 ( D.C. Cir. 1990). A plaintiff must alleg e specific acts c onnecting

a def endant with the f

orum. 2d Amendm ent Found. v. U .S. Conference of Mayors , 274 F.3d 521, 524 ( D.C. Cir. 2001). Ba re a lleg ations and conc lusory statements ar e insufficient. Id.

In deter mining whe ther a

fac tual basis for pe rsonal jurisdiction exis ts, a court resolves f actua l discrepa

ncies a ppear ing in the r ecor d in favor of the plaintiff. Crane , 894 F.2d at 456. Howeve r, the c ourt nee d not treat a ll of the plaintiff’s a lleg ations as true. United States v. Philip Morris Inc. , 116 F. Supp. 2d 116, 120 n.4 (D.D .C. 2000). Instead, the c ourt “may rec eive and we igh a ffidavits and a ny other re levant matter

to assist itin determiningthe jurisdictional fac ts.” Id. C. F ailure to State a Claim , Construed as Su m m ary Judgm ent

A motion to dis miss pursuant to Fede ral Rule of Civil Procedure 12(b)( 6) challeng es the a dequac y

of a c omplaint on its fac e, testingwhether a plaintiff ha s proper ly

stated a cla im. Fed. R. Civ. P. 12(b)(6). De fenda nts include with their motion to dis miss several exhibi ts relatingto their arguments made unde r Rule 12(b)( 1), seeMot. Ex s. A–D [Dkt. # 21-1], which the Court will construe a s made unde r Rule 12(b)( 6), seeDiscussion supra Part. I I .A. “I f,

-3-on a motion under Rule 12(b) (6) . . . , matter s outside the pleading s are prese nted to and not

excluded by

the cour t, the motion mus t be treated as one for summary judgme nt . . . .” Fe d. R. Civ. P . 12(d). The Court cannot exclude Exhibi ts B or C, upon which D efe ndants’ base their argument that Plaintiff’s Privacy Act cla ims are untimely

. SeeDiscussion infra Part IV.B . The Court theref

ore c onstrues Plaintiff’s motion under Rule 12(b) (6) ( and ar guments ostensibly made under Rule 12( b)(1) ) as a motion under Fe dera l Rule of Civil Procedur e 56. Under Rule 56, summary

judgme nt shall be g rante d “if the mova nt shows that there is no ge nuine dispute as to any materia l fac t and the movant is entitled to judge ment as a matter of la

w.” F ed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, I nc. , 477 U.S. 242, 247 (1986). Moreove r, summary

judgme nt is properly

g rante d ag ainst a par

ty who “a fter a dequate time for discovery and upon motion . . . fails to make a show ing suf ficient to establish the e x istence of an element e ssential to that party ’s ca se, and on which that par ty will bear the burden of

proof at trial.” Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986).

In rulingon a motion for summary judgme nt, the Court must draw all justifiable infere nces in the nonmovingparty ’s favor and a cce pt the nonmoving pa rty ’s evidenc e as true

. Anderson , 477 U.S. at 255. A nonmoving pa rty , howeve r, must establish more than “ the mere exis tence of a sc intill a of e vidence ” in support of its position. Id. at 252. In addition, the nonmoving pa

rty may not rely solely on alleg ations or conc lusory statements. Gree ne v. D alton , 164 F.3d 671, 675 ( D.C. Cir. 1999). Rather, the nonmovingparty must present spec ific fa cts that would enable a re asonable jury to find in its favor. Id. at 675. I f the e vidence “is mere ly colora ble, or is not signific antly probative, summar

y judgme nt may

be g rante d.” Anderson , 477 U.S. at 249–50 (citations omitted).

-4-D. Transf er. “Wheneve r a c ivil action is filed in a court . . . a nd that court finds that ther e is a want of jurisdiction, the c ourt shall, if it is in t he intere st of justice, transfe r such a ction . . . to any other such c ourt in which the a ction . . . could have been br oug ht at the time it was filed . . . .” 28 U.S.C. § 1631. III. P etition for a Writ of Hab eas Cor pus .

Plaintiff’s ex post facto claims constitute a petition for a writ a ha beas c orpus. Summary judgme nt will be entere d in favor of individual Com mission defendants on Plaintiff’s habea s claim, but Warden Mar tinez will be adde d as the re spondent. The pe tition wil l be seve red from Plaintiff’s other

claims. The r esulting se parate habe as ac tion will be transfer red. A. P laintif

f’s Ex Post F acto C laim s Are a P etition for a Writ of Habeas Corpus. Plaintiff is curre ntly

imprisoned at USP Allenwood, wher e he is ser ving a sentenc e imposed by

the Superior Court for

the District of Columbia. See Bailey v . United States , 699 A.2d 392 (D.C. 1997). Plaintiff claims that Defe ndants, when e valuatingwhether or 1 when to re lease Plaintiff on parole, “ impermissibly rel[ied] upon . . . federa l standards a nd/or the 2000 USPC guidelines [and] capr iciously us[ed] ‘other’ rea sons to depart fr om the 1987 D.C. Boa rd of Par ole and 1991 g

uidelines.” Compl. ¶ 17 [Dkt. # 1] . In other wor ds, say s Plainti ff,

Plaintiff is therefor e a state prisoner

. Banks v. Sm ith , 377 F. Supp. 2d 92, 94 (D.D .C. 1 2005) (“ The D.C. Circuit has c onsistently held that when c onsideringa wr it of habea s corpus a prisoner of

the District of Columbia is considere d a State prisoner , when the prisoner is held under a conviction of the D .C. Superior Court.”) Althoug h habea s challeng es to a D.C. Superior Court conviction g ener ally must be made in Superior Court, ha beas c halleng es to parole decisions may

be brought in feder al cour t. See Blair-Bey v . Quick, 151 F.3d 1036, 1043 ( D.C. Cir. 1998). -5-Def

endants unc onstitut ionally applied new er guidelines ex post facto , when they should have used guidelines from 1987 or 1991. T he alleg ed re sult: “to deny Plaintiff A. Ba iley

parole .” Id. ¶ 4. Plaintiff there fore asks the Court to g rant him a “ parole date of September 6, 2010.” Id. ¶ 1. In eff ect, Plaintiff see ks his imm ediate r elea se and thus cha lleng es the duration of his present c onfinement. Such is the provinc e of ha beas c orpus. In Chatman-Bey v. Thornburgh , the Court of Appe als for the District of Columbia Circuit directly considere d the question of “whe ther a

fede ral prisone r cha lleng ing the deter mination of a par ole elig ibilit y date is re quired to bringhis claim in habea s.” 864 F .2d 804, 808 (D.C. Cir. 1988). The Circ uit concluded that beca use “a prisoner’ s challeng e to the dete rmination of his elig ibilit y for pa role . . . attack[s] the ‘fa ct or dura

tion’ of [the prisoner’s] confineme nt,” such a challeng e must be made in a petition for a writ of habe as cor

pus. Id. at 810, 810 n.5. The Court ther efor e construe s Plainti ff’ s ex post fac to claims as a pe tition for a writ of ha beas c orpus. B. P laintif

f’s Warden Is the Pr oper Re spon dent. The prope r re spondent in a habe as cor pus case is the petitioner’s wa rden or immediate custodian. Rumsfeld v. Padilla , 542 U.S. 426, 439 (2004); Blair-Bey , 151 F.3d at 1039; see also Guerra v. M eese , 786 F.2d 414, 416 ( D.C. Cir. 1986) (notingthat althoug h “the Parole Commission i s responsible for the [prisoner’s] continued detention[,] . . . this power does not make the Commission t he prisoner s’ custodian in the sense of the ha beas c orpus statute”)

. Petitioner has not named his wa rden or immediate custodian a s a re spondent in this action, but has instead only

named the c hairman, se vera l individual commis sioners, and c ase ope rations administrator of the Commission. S ummary judgme nt in favor of

these individual Commis sion defe ndants is theref

ore a ppropriate . But a s to the proper responde nt, the Court may , “on its own”

-6-and “on just terms, a dd . . . a par ty .” F ed. R. Civ. P. 21. The Court will there fore add R. Martinez, Warden of U SP All enwood, a s the proper responde nt in this action. 2 Def endants then ur g e the Court to dismiss t he Plaintiff’s habe as cla im ag ainst Warden Mar

tinez because “this Court lacks per sonal jurisdiction over Plaintiff’s wa rden.” Mem. at 9. It is true that “a district c ourt may not enterta in a habe as petition involving pre sent phy sical custody unless the re spondent custodian is within its t err itorial jurisdiction.” Stokes v . U.S. Parole Comm’n , 374 F.3d 1235, 1239 ( D.C. Cir. 2004). But a court may , and ofte n does, transfe r a ha

beas pe tition t o the appr opriate c ourt. See28 U.S.C. § 1631. Defenda nts alternatively

move for suc h a tra

nsfer . Mem. at 8. C. The Hab eas Claim s Must Be Sever ed from the P rivacy Ac t Claim s P rior t o Transf

er. This Court lacks persona l jurisdiction over Warden Ma rtinez as to Plainti ff’ s habea s claim, seediscussion supra Part I I I .B., but ther e is no jurisdictional defe ct with respe ct to Plaintiff’s Privacy

Act cla ims, seediscussion infra Part IV. “Sec tion 1631 [ of title 18, United States Code,] di rec ts a court to tra nsfer an ‘a ction’ over

which it lacks jurisdiction, rathe r than a n individual claim . . . .” Hill v. U.S. Air Force , 795 F.2d 1067, 1070 ( D.C. Cir. 1986). The Court, there fore , may

not transfe r the ha

beas c laims while maintaining the Privacy Act cla ims, because they arise in the sa

me “a ction.” Instead, the c laims must first be severe d into separa te ac tions, so that one entire action may be tra nsfer red a nd the other e ntire ac tion may rema in. See, e .g. , Pamplona ex

rel. Pamplona v. He rnandez , No. 08-c v-2205, 2009 WL578578, at *3 (S.D. Cal.

Def endants c ontend that “Plaintiff’s c ustodian is the warde n of the fa cility in which he 2 is housed at USP-L ewisburgin Pennsylvania.” Me m. at 9. A sea rch of the B urea

u of Prisons Inmate L ocator

for Reg ister Number

03997-000, howe ver, c lear lyindicates that PlaintiffPetitioner is housed at USP Allenwood, where R. Martinez is the warde n. -7-Mar. 5, 2009)

. “The Court may . . . sever any claim ag ainst a par

ty ” that is misjoined. Fed. R. Civ. P . 21. Be cause the Court has adde d Warden Mar tinez as a defe ndant in this case, the Court finds that he and the habea s claims ag ainst him are now misjoined with the Commissi on defe ndants and the Privac y Act cla ims ag ainst them. Whether the Commission ex post facto applied later -adopte d parole guidelines in deter mining Plaintiff’s par ole elig ibilit y has nothingto do with whether the Commi ssion, in their application of the alleg edly incorre ct guidelines, violated the Privac y Act by basingits parole decision “on groundless, fa lse, inacc urate , and er roneous infor

mation” in Plaintiff’s rec ords, as Plaintiff alleg es. Compl. ¶ 10. Although the alleg ed violations may have taken plac e as pa

rt of the same tra

nsaction or oc curr ence—the Commiss ion’s decision makingproce ss—they share no common questions of law or f act. The habea s claim conc erns whe ther the pr oper guidelines wer e applied in the first plac e, while the Priva cy Act cla im concer

ns how those guidelines wer e actua lly applied with re spect to consider ation of ce rtain re cords a bout Plainti ff. The se ar e separ ate leg al issues conc erningsepar ate de fenda nts. I f the Court we re to a g ree with Plainti ff on his habea s claim and c onclude that the Commission applied the wrongstandards, that decision would have no be aringon whether , when a pplying those standards, the Commi ssion considered

cer tain information violative of the Privac y Act. Similarly , if the Court wer e to agree with Plaintiff on his P rivac y

Act cla ims and conclude that the Commiss ion considere d information violative of the Privac y

Act, that dec ision would have no bea ringon whether , when makingthat consideration, the Comm ission ex post facto applied incor rec t standards. More over, se vera nce will promote an expeditious final resolution of the Privacy Act cla ims because , as discussed

-8-below, those c laims will be dismi ssed. The Court will there fore sever the habe as cla im from the Privacy Act cla ims. Upon severa nce of the habe as cla ims from the Privacy Act cla ims, thi s action will become two separ ate a nd independe nt actions. In re Brand- Name Presc ription Drugs Antitrust Liti g. , 264 F. Supp. 2d 1372, 1376 (J.P .M.L . 2003) (“ [S ]everanc e of c laims under Rule 21 results in the cre ation of sepa rate actions.”)

. D. The Resultant Habeas Action Will B e Transferre d. A cour t shall transfer

an ac tion when the tra

nsfer or cour

t lacks jurisdiction and transfe r is “in intere sts of justice.” 28 U.S.C. § 1631. The prope r transf ere e cour t is one where the ac tion “could have been br oug ht at the time it was filed.” Id. This court lac ks jurisdiction over Warde n Martinez. See28 U.S.C. § 88 (limi ting ter ritorial jurisdiction to the District of Columbi a). The United States District Court for the Middle District of Pennsylvania has territoria l jurisdiction over Warden Ma rtinez. SeeFe d. Bur eau of Prisons, USP Allenwood , http:// www.bop.g ov/locations/insti tutions/ alp/index.j sp (last visited J an. 26, 2011) ( identifying “Middle Pennsylvania” a s the judicial district encompa ssing USP Allenwood). B eca use transf er would avoid the inef

ficienc y of dismissing this action and re quiringPetitioner to refile it, the Court finds it in t he intere st of justice to simply transfe r this action to the prope r cour t. Be cause the Court lacks jurisdiction to consider the habea s action, the Court will not consider De fenda

nts’ additional arguments that the habe as cla ims should be dism issed. See Mem. at 10–16. De fenda nts may rene w their motion to dismi ss before the transf ere e cour t. IV. P rivacy Ac t. Summary judgme nt will be entere d in favor of individual Com mission defendants on Plaintiff’s Privacy

Act cla ims, but t he Court will add the Commissi on itself as the prope r -9-defe ndant. Summary judgme nt will then be enter ed in favor of the Commission it self on those claims. A. The Com m ission Is the P roper D efendan t.

The only proper defe ndant in an ac tion under the Privac y Act “is the a g ency maintaining the challeng ed re cord.” Ingram v. G onzales , 501 F. Supp. 2d 180, 185 n.2 (D.D .C. 2007) (c iting Martinez v. Bure au of Prisons , 444 F.3d 620, 624 ( D.C. Cir. 2006); Reid v. Fe d. Bureau of Prisons , No. 04-1845, 2005 WL1699425, at *2 (D.D .C. J uly 20, 2005)). Plaintiff has not named the Commission i tself as a defe ndant in this case, but has instea d only named the chair man, seve ral individual commissioners, and the c ase ope rations administrator of the Commi ssion. Sum mary

judgme nt in favor of

these individual Commis sion defenda nts is there fore appropr iate. B ut as to the proper defe ndant, the Court may , “on its own” a nd “on just terms, add . . . a

party .” F ed. R. Civ. P. 21. The Court will there fore add the United States Parole Commission as the proper de fenda nt in this action. B. P laintif

f’s Pr ivacy Act

Claim s Are Untim ely. Def endants a dditionally

argue that Plaintiff’s cla ims under the Privac y Act ar e barr ed by the Act’ s statute of limitations. M em. at 16–18. The Act make s clea r that “[a]n action to enforc e any

liability cre ated unde r this section”—i.e., 5 U .S.C. § 552a—must be broug ht “within two y ear s from the date on which the c ause of action ar ises.” § 552a( g )(5) . A ca use of action under

the Privacy

Act ar ises “at the time that ( 1) an e rror was made in maintaining plaintiff’s re cords[,] (2) plaintiff was ha rmed by the er ror[,] and (3) the plaintiff e ither knewor had re ason to know of the e rror .” Szymanski v . U.S. Parole Comm’n , 870 F. Supp. 377, 378 (D.D.C. 1994); see Tijerina v. W alters , 821 F.2d 789, 798 ( D.C. Cir. 1987). “A ne w ca use of

-10-action does not a rise ea ch time an a dverse deter mination is m ade ba sed on the a lleg edly

err oneous re cords.” Allmon v. Fed. B ureau of Prisons , 605 F. Supp. 2d 1, 4 (D.D .C. 2009). Unless the statute of limitations is equitably tolled, a late- filed Privacy Act cla im is t ime barr ed. Chung v. U.S. De

p’t of Justice , 333 F.3d a t 276-78. Plaintiff alleg es in his complaint that the Commi ssion relied on “f alse, inac curate, and er roneous infor

mation” when e valuatingwhether to gr ant Plaintiff parole on the sentenc e he was then se rvingfor a

rape committed in the District of Columbia. Com pl. ¶ 12. “[S] pecif ically , this false, inac curate, [and] erroneous [information] i s a re fer ence to a war rant for an alleg ed sexual assault in 1993 in Baltimore, MD, that has be en subseque ntly dismiss ed.” Id. Def

endants point out that the Com mission conducted a pa role he aringfor Plaintiff on June 19, 2007. Mem. at 17 (c iting He aringSummary , Mot. Ex . B [Dkt. # 21-1]). Duringthat hear ing, Commissioners considere d the B altimore wa rra nt, with one revie wingexaminer noting that Plainti ff “ was wa nted for a Ba ltimore, MD [r] ape when he c ommitt ed the c urre nt [ r]ape” a nd a sec ond revie wing examiner noting that “there was a nother outstandingwar

rant for [P laintiff] for another

rape .” Hea ringSummary

at 3. Def endants a lso point outthat the Commiss ion formally denied Plaintiff parole on October

11, 2007. Mem. at 17 (c iting Notice of Ac tion, Mot. Ex . C [ Dkt. # 21-1]). In the denial notice , the Commiss ion specifica lly informed Plaintiff that its decision was pa rtially based on the fac t that “[a]tthe time y ou committed this offense” —rape in the District of Columbi a—“the re w as an outstandingwar rant for y our ar rest base d on another

rape in Ba ltimore.” Notice of Ac tion at 1.

By the time he re ceive d the Notice of Action—pre sumably

soon after

the date of the Notice, O ctober

11, 2007—Plaintiff clear ly knew, or cer tainly should have known, that the

-11-Commi ssion considered the rec ord of Plaintiff’s B altimore wa rra nt. The two-year

statute of limit ations theref

ore be g an to run on, or ve ry soon after , October

11, 2007. When Plainti ff f iled his Privacy

Act cla ims on March 22, 2010, see Compl., t hose cla ims were time- barr ed. Plaintiff’s arguments to the contrar y are unavailing

. First, Plaintiff asser

ts that he was f

irst presente d with Defe ndants’ Exhibi t B, the Hea ringSummary , in an appe al “initial [si c] filed J uly 6th [ sic], 2009.” Mem. of P. & A. in Opp’n of D efs.’ Mot. to Dismi ss ¶ 55 [Dkt. # 23] . “Thus, Plaintiff . . . brought action within two y ear s” of July

6, 2009. Id. Nonethele ss, Plainti ff still was informed of the Commiss ion’s consideration of the Ba ltimore warr ant via the Notice of Ac tion in October 2007, a nd thus knew or should have known of that consider ation more than two year s befor e he initiated this ac tion.

Second, Plaintiff asser

ts that “his initi al complaint was f iled ag ainst Defe ndants for violating ” the Privac y Act on Jul y

6, 2009. Id. ¶ 56. B ut even if Plaintiff did ra ise alleg ations of Privacy

Act violations ag ainst Defe ndants in a sepa rate action in J uly

2009, that would have no eff ect on r unning the statute of limitations wit h respe ct to this lawsuit. P laintiff still needed to have f iled this case within two y ear s of re ceipt of the Notice of Action in October

2007. Def endants ther efor e cor

rec tly argue in their re ply

that “Plaintiff ca

nnot and has not pled that he wa s unable to discover his claims despite due dilig ence .” De fs.’ Reply to Pl.’s Opp’n to De fs.’ Mot. to Dismiss, at 9 [ Dkt. # 25]. I n other wor ds, there is no re ason in this case to toll t he runningof the statute of limit ations. Plainti ff f

iled this action sever al months after the limit ations period expired. His claims under the Privacy

Act ar e ther efor e time-ba rre d, and summary judgme nt will be gr anted in fa vor of the Commission.

-12-V. Conclusion . For the re asons set for

th above, De fenda

nts’ motion to di smiss wil l be grante d in part a nd denied in par

t. The only

rema ining de fenda

nt will be Warden Mar

tinez, and the only

rema ining c laims will be those in the severe d and tra nsfer red Petition for a

Writ of Habea s Corpus. A separ ate or der c onsistent with thi s Memorandum Opinion shall issue this date.

Date: Fe bruar

y 15, 2010 /s/ ROSEMARY M. COL L YER United States District J udg e

-13-