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UNITED STATES EX REL. WOOD v. BLACKER

December 9, 1971

UNITED STATES of America ex rel. Delbert WOOD and James R. Wood, Plaintiffs,
v.
Micheal BLACKER, Esq., James C. Haggerty, Esq., Public Defender's Office, Defendants


Garth, District Judge.


The opinion of the court was delivered by: GARTH

GARTH, District Judge:

 The plaintiffs, Delbert L. and James R. Wood, have filed a civil action for damages against the defendants, Micheal Blacker and James C. Haggerty. The complaint alleges that defendants, representatives of the New Jersey Public Defender, inadequately and negligently represented plaintiffs in earlier state criminal proceedings in which the plaintiffs pleaded guilty and were sentenced. Plaintiffs in seeking damages invoke the jurisdiction of this Court under 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3). Defendants have moved to dismiss plaintiffs' complaint.

 I.

 Defendants contend that the instant action is, in essence, a habeas corpus action and that plaintiffs' complaint should be dismissed for failure to exhaust available state remedies as is required by 28 U.S.C. § 2254.

 Plaintiffs' complaint clearly states that they are seeking to invoke the jurisdiction of this Court under 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3). The complaint prays for relief in the form of money damages.

 The writ of habeas corpus is intended to test the legality of restraints on a person's liberty. See R. Sokol, Federal Habeas Corpus 31 (1969). In an early opinion of the United States Supreme Court, Chief Justice Marshall wrote:

 
"The writ of habeas corpus is a high prerogative writ, known to the common law, the great object of which is the liberation of those who may be imprisoned without sufficient cause." Ex Parte Watkins, 28 U.S. (3 Peters) 193, 201, 7 L. Ed. 650 (1830).

 See Fay v. Noia, 372 U.S. 391, 401-402, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1962).

 The relief sought by a petition for a writ of habeas corpus -- one's liberation from illegal confinement -- is clearly distinguishable from the relief which these plaintiffs seek. Admittedly, many of the same factual inquiries may be necessary in both cases, but this is not to say that the two actions are the same. Inasmuch as the instant action is not a petition for a writ of habeas corpus, I need not consider whether plaintiffs have exhausted their state remedies.

 II.

 Defendants additionally contend that plaintiffs' service of process is insufficient in that it did not comply with the requirements of Rule 4(d)(6) of the Federal Rules of Civil Procedure, which governs service of process "upon a state or municipal corporation or other governmental organization thereof subject to suit." Defendants argue that plaintiffs complain only of defendants' official activities and that personal service upon them, rather than upon the chief executive official of the State Public Defender or upon the Attorney General for the State of New Jersey, is insufficient.

 Even though the acts complained of may have been committed by defendants in their official capacity, a recovery under 42 U.S.C. § 1983 runs against the official himself in his private capacity and not against the Government. Ocasio v. Bryan, 374 F.2d 11 (3d Cir. 1967). Since the defendants are being sued in their private capacity, service of process was sufficient under Rule 4(d)(1) of the Federal Rules of Civil Procedure to bring the defendants within the jurisdiction of this Court. Accord, Smith v. Ellington, 348 F.2d 1021 (6th ...


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