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Somerville v. Dewalt

March 11, 2009



Petitioner Norman David Somerville is confined in the Federal Correctional Medical Center which is located in Lexington, Kentucky ("FMC-Lexington"). On February 27, 2009, Somerville filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2241 [Record No. 2]. Somerville paid the $5.00 filing fee [Id.].


Somerville claims that his right to due process of law, guaranteed by the Fifth Amendment of the United States Constitution, has been violated by the Bureau of Prisons ("BOP") and, specifically the staff of FMC-Lexington. Somerville wants to be placed in a Residential Re-entry Center ("RRC") located in North Carolina, not a more restrictive a more restrictive Comprehensive Sanction Center (" CSC") located in Michigan. Somerville seeks an emergency Order from this Court which would direct the BOP to immediately order him to be placed in an RRC located in North Carolina.*fn1

Somerville claims that in denying him placement in an unrestricted RRC in North Carolina, FMC-Lexington staff violated the Ex Post Facto Clause of the United States Constitution, Art. I, § 10, cl.1. Somerville argues that although he was sentenced in 2005, the prison staff improperly applied the provisions of the Second Chance Act of 2007, Pub. L. No. 110-199, 122 Stat. 657, to him in 2008 when the issue of his pre-release custody arose.

The Second Chance Act of 2007, enacted on April 9, 2008, amended 18 U.S.C. § 3624(c) to "authorize[] the BOP to consider placing an inmate in an RRC for up to the final 12 months of his or her sentence, rather than the final six months that were available pre-amendment." Montes v. Sanders, 2008 WL 2844494, at *1 (C.D. Cal. July 22, 2008).*fn2


The named respondents are: (1) Stephen Dewalt, the warden of FMC-Lexington, and (2) Marvin S. Pitt, Housing Unit Manger at FMC-Lexington.


Somerville alleges that in the early part of 2008, the FMC-Lexington Unit Team staff designated him for a six-month placement in an RRC effective February 1, 2009.*fn3 He claims that in November of 2008, the prison rescinded that designation and instead ordered him to be placed in a CSC located in Michigan. Somerville claims that this action was taken in retaliation for his having filed grievances against prison staff members on unrelated matters.

In his initial filing [Record No. 2] Somerville set forth a detailed narrative about the prison's decision to place him in CSC Facility located in Michigan. Somerville described the facility where the BOP intends to place him as "Restrictive Placement" [Record No. 2-2, pp. 3-4]. Somerville seeks a "declaratory finding" that "prisons staff acted in retaliatory manner in stopping Relocation Request and CCC/RRC placement."[Record No. 2, p.9].

On March 5, 2009, Somerville filed a "Motion for Leave to File an Amended § 2241 Petition" [Record No. 4]. Somerville asked to add additional "respondents" and assert additional Fifth Amendment claims relative to adverse decisions rendered by FMC-Lexington staff.

On that same date, Somerville filed a "Motion for Temporary Restraining Order and Motion for Preliminary Injunction" [Record No. 5], seeking the same relief as he sought in his initial filing (immediate transfer to a RRC located in North Carolina).


In August of 2004, Somerville pleaded guilty to violating 18 U.S.C. § 922(o)(1) "Possession of a Machine Gun," in the United States District Court for the Western District of Michigan. See United States of America v. Norman David Somerville, 1:03-CR-239-01(Hon. Gordon J. Quist presiding) ("the Trial Court").

On March 25, 2005, the Trial Court convicted Somerville of the offense and sentenced him to serve a term of 80 months [See Trial Court Docket, Entry No. 97]. Somerville appealed. On August 1, 2006, United States Court of Appeals for the Sixth Circuit entered a lengthy Order affirming Somerville's conviction [See Id., Docket Entry No. 157; Mandate at Entry No. 160]. That court later denied Somerville's requests for post-judgment relief [Id., Record No. 167 (2/8/07); Mandate at Record No. 169].


1. Excessive Documents Filed

Somerville's § 2241 petition (nine pages) is accompanied by over ninety (90) pages of documentation which includes a thirty-page memorandum.*fn4 As a preliminary matter, Somerville is advised that Fed. R. Civ. P. 8(a)(2) requires that a pleading that states a claim for relief must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." See also Vakalis v. Shawmut Corp., 925 F.2d 34, 36 (1st Cir.1991); Mangan v. Weinberger, 848 F.2d 909, 911 (8th Cir.1988). While a party is entitled to state his claims and arguments, he must observe a reasonable degree of brevity.

In Barsella v. United States, 135 F .R. D. 64, 66 (S.D. N.Y. 1991), the district court in New York aptly described the problem with submissions similar to Somerville's submission. "[C]omplaints which ramble, which needlessly speculate, accuse and condemn, and which contain circuitous diatribes far removed from the heart of the claim do not comport with these goals [Fed. R. Civ. P. 8] and this system and must be dismissed (citations omitted)."

The Court would be acting within its rights by dismissing the entire petition as being in violation of Fed. R. Civ. P. 8(a) and (e). See Burton v. Peartree, 326 F. Supp. 755, 758 (E. D. Penn. 1971) ("Burton, proceeding pro se, has filed a lengthy and rambling complaint which contains little more than demands, charges, and conclusions. The complaint is not a short and plain statement of the case and flagrantly violates Fed. R. Civ. P. 8. On this ground alone the complaint may be dismissed. Koll v. Wayzata State Bank, 397 F.2d 124 (8 Cir. 1968), United States ex rel. Holland v. Maroney, 299 F. Supp. 262 (W. D. Pa.1969))."

The Court must dismiss the instant ยง 2241 petition for other reasons. Somerville is advised, however, that in the event he files future pleadings, the Court will hold him accountable to the "short and ...

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