UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
MARTIN A. ARMSTRONG,
Plaintiff, v. Civil Action No. 09-972 (HHK) HARVEY LAPPIN et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiff Martin Armstrong, a prisoner serving a criminal sentence, is currently confined at
the Federal Correctional Institution Fort Dix, in Fort Dix, New Jersey. Paying the $350.00 fee for
filing a civil action, he filed a pro se complaint “for personal injury,” pursuant to 42 U.S.C. §§ 1983,
1985, Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and the
Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671-2680. The complaint names as
defendants the Director of the Federal Bureau of Prisons (“BOP”) and ten unknown BOP
employees.1 See Compl. at 1, 10. Armstrong has also filed a motion for a temporary restraining
order (“TRO”). The motion for a TRO will be denied, and the claims for damages will be
transferred, in the interest of justice, to the United States District Court for the Southern District of
New York, where the alleged personal injury occurred.
I. BACKGROUND
Armstrong was arrested on September 13, 1999, on a complaint charging him with securities
fraud. Armstrong v. Guccione, 470 F.3d 89, 93 (2d Cir. 2006). The same day, the Securities and
1 There is no evidence on the docket that the defendants have been served process. Exchange Commission sued him in a civil suit. Id. In the civil suit, the district court ordered
Armstrong, a corporate officer of the defendant, to turn over certain documents and assets in his
custody or control. Id. Armstrong produced some items, but failed to return approximately $15
million in corporate assets. Id. at 94. After hearings on motions, the district court handling the civil
case found Armstrong in contempt of its orders and on January 14, 2000, ordered the marshals to
confine Armstrong at the Metropolitan Correctional Center (“MCC”) in New York until he either
complied with the turnover orders or demonstrated that it would be impossible for him to do so. Id.
at 95. On August 17, 2006, Armstrong pled guilty to some of the criminal charges. Id. at 96.
During this period, the district court held periodic hearings to ensure that Armstrong’s contempt
confinement remained coercive rather than punitive.2 Id. at 95. Armstrong also filed “numerous
interlocutory appeals from the district court’s repeated determinations.” Id. Criminal sentence was
imposed on Armstrong on April 10, 2007,and his confinement for civil contempt was lifted on April
27, 2007. Armstrong v. Grondolsky, Civil Action No. 08-569 (RMB), 2008 WL 442111, *2 (D.N.J.
Feb. 14, 2008). A few days later, on May 10, 2007, while still being held at MCC, another inmate
attacked and seriously injured Armstrong. Compl. at 1.
Before and since the contempt confinement was lifted, Armstrong has argued in various
courts that under 18 U.S.C. § 3585(b) he is due credit toward his criminal sentence for the time he
spent in confinement for civil contempt of court. See, e.g., Armstrong v. Lappin, Civil Action 06-
2221 (UNA) (Dec. 28, 2006) (transferring habeas petition raising the § 3585(b) issue to the United
States District Court for the Southern District of New York, where petitioner was confined);
2 The SEC’s civil case remained open until September 30, 2008. See Order, S.E.C. v. Princeton Economics et al., Civil Action 99-9667 (PKC) (S.D.N.Y. Sept. 30, 2008).
-2- Armstrong v. Lappin, Civil Action No. 07-2573 (S.D.N.Y. Mar. 28, 2007) (dismissing habeas
petition raising the § 3585(b) for failing to make a substantial showing of a denial of a constitutional
right, and certifying that any appeal would not be taken in good faith);3 Armstrong v. Grondolsky,
Civil Action No. 08-569 (RMB) (D.N.J. June 12, 2008) (dismissing, after ordering custodian to
respond, habeas petition raising 18 U.S.C. § 3585(b) issue for failure to exhaust administrative
remedies); Armstrong v. United States of America, Civil Action No. 08-10946 (HB) (S.D.N.Y. Dec.
17, 2008) (dismissing petition for writ of mandamus regarding the application of custody credit
under § 3585(b), and certifying that any appeal would not be taken in good faith);4 Commodity
Futures Trading Comm’n v. Princeton Global Mgmt., App. Nos. 08-5899 & 08-5902 (2d Cir. May 4,
2009) (denying Armstrong’s “motion for a temporary restraining order barring his continued
confinement” and granting appellees’ motions to dismiss).5
II. DISCUSSION
In the action filed here, Armstrong asserts damages claims for an assault he suffered at the
hands of a fellow inmate, Compl. at 1-2, and for what he asserts is his illegal confinement due to
BOP officials’ refusal to apply the custody credit he maintains is mandated by § 3585(b), id. at 2-7.
3 This memorandum opinion and order are not available from the court’s electronic docket for review. 4 This memorandum opinion and order are not available from the court’s electronic docket for review. 5 The Court of Appeal for the Second Circuit also granted in part the appellees’ motions for imposition of a leave-to-file sanction, and warned Armstrong that “any future filings of frivolous, meritless, or duplicative appeals, motions, petitions, or other papers related to the civil and criminal proceedings discussed in [the order disposing of that appeal] may result in the imposition of a leave-to-file sanction, under which Armstrong will be required to obtain permission” before filing additional papers with the Second Circuit. Id.
-3- Presumably in an attempt to avoid dismissal on habeas jurisdictional grounds, the complaint states
that “Armstrong will also seek immediate release in a separate action.” Id. at 10. The sole subject of
the pending TRO, however, is the § 3585(b) issue, and the remedy sought is Armstrong’s immediate
release from his confinement under criminal sentence. See Mot. for TRO at 44 (seeking immediate
release as relief).
A. The Motion for a TRO
As this court has previously instructed Armstrong, “[h]abeas corpus is the exclusive remedy
for a federal prisoner bringing a claim that would have a ‘probablistic impact’ upon the duration of
his custody.” Armstrong v. Lappin, Civil Action No. 06-2221 (D.D.C. Dec. 28, 2006) (citing
Chatman-Bey v. Thornburgh, 864 F.2d 804, 809 (D.C. Cir. 1988) and Wilkinson v. Dotson, 544 U.S.
74, 81-82 (2005)). Therefore, because granting Armstrong’s TRO would have the effect of altering
the duration of his custody, he must pursue that relief through a habeas petition addressed to his
current custodian. Id. at 1-2.
In addition, the TRO will be denied because Armstrong has not made the showings required
to obtain a TRO, which include a showing of likelihood of success on the merits.
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
MARTIN A. ARMSTRONG,
Plaintiff, v. Civil Action No. 09-972 (HHK) HARVEY LAPPIN et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiff Martin Armstrong, a prisoner serving a criminal sentence, is currently confined at
the Federal Correctional Institution Fort Dix, in Fort Dix, New Jersey. Paying the $350.00 fee for
filing a civil action, he filed a pro se complaint “for personal injury,” pursuant to 42 U.S.C. §§ 1983,
1985, Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and the
Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671-2680. The complaint names as
defendants the Director of the Federal Bureau of Prisons (“BOP”) and ten unknown BOP
employees.1 See Compl. at 1, 10. Armstrong has also filed a motion for a temporary restraining
order (“TRO”). The motion for a TRO will be denied, and the claims for damages will be
transferred, in the interest of justice, to the United States District Court for the Southern District of
New York, where the alleged personal injury occurred.
I. BACKGROUND
Armstrong was arrested on September 13, 1999, on a complaint charging him with securities
fraud. Armstrong v. Guccione, 470 F.3d 89, 93 (2d Cir. 2006). The same day, the Securities and
1 There is no evidence on the docket that the defendants have been served process. Exchange Commission sued him in a civil suit. Id. In the civil suit, the district court ordered
Armstrong, a corporate officer of the defendant, to turn over certain documents and assets in his
custody or control. Id. Armstrong produced some items, but failed to return approximately $15
million in corporate assets. Id. at 94. After hearings on motions, the district court handling the civil
case found Armstrong in contempt of its orders and on January 14, 2000, ordered the marshals to
confine Armstrong at the Metropolitan Correctional Center (“MCC”) in New York until he either
complied with the turnover orders or demonstrated that it would be impossible for him to do so. Id.
at 95. On August 17, 2006, Armstrong pled guilty to some of the criminal charges. Id. at 96.
During this period, the district court held periodic hearings to ensure that Armstrong’s contempt
confinement remained coercive rather than punitive.2 Id. at 95. Armstrong also filed “numerous
interlocutory appeals from the district court’s repeated determinations.” Id. Criminal sentence was
imposed on Armstrong on April 10, 2007,and his confinement for civil contempt was lifted on April
27, 2007. Armstrong v. Grondolsky, Civil Action No. 08-569 (RMB), 2008 WL 442111, *2 (D.N.J.
Feb. 14, 2008). A few days later, on May 10, 2007, while still being held at MCC, another inmate
attacked and seriously injured Armstrong. Compl. at 1.
Before and since the contempt confinement was lifted, Armstrong has argued in various
courts that under 18 U.S.C. § 3585(b) he is due credit toward his criminal sentence for the time he
spent in confinement for civil contempt of court. See, e.g., Armstrong v. Lappin, Civil Action 06-
2221 (UNA) (Dec. 28, 2006) (transferring habeas petition raising the § 3585(b) issue to the United
States District Court for the Southern District of New York, where petitioner was confined);
2 The SEC’s civil case remained open until September 30, 2008. See Order, S.E.C. v. Princeton Economics et al., Civil Action 99-9667 (PKC) (S.D.N.Y. Sept. 30, 2008).
-2- Armstrong v. Lappin, Civil Action No. 07-2573 (S.D.N.Y. Mar. 28, 2007) (dismissing habeas
petition raising the § 3585(b) for failing to make a substantial showing of a denial of a constitutional
right, and certifying that any appeal would not be taken in good faith);3 Armstrong v. Grondolsky,
Civil Action No. 08-569 (RMB) (D.N.J. June 12, 2008) (dismissing, after ordering custodian to
respond, habeas petition raising 18 U.S.C. § 3585(b) issue for failure to exhaust administrative
remedies); Armstrong v. United States of America, Civil Action No. 08-10946 (HB) (S.D.N.Y. Dec.
17, 2008) (dismissing petition for writ of mandamus regarding the application of custody credit
under § 3585(b), and certifying that any appeal would not be taken in good faith);4 Commodity
Futures Trading Comm’n v. Princeton Global Mgmt., App. Nos. 08-5899 & 08-5902 (2d Cir. May 4,
2009) (denying Armstrong’s “motion for a temporary restraining order barring his continued
confinement” and granting appellees’ motions to dismiss).5
II. DISCUSSION
In the action filed here, Armstrong asserts damages claims for an assault he suffered at the
hands of a fellow inmate, Compl. at 1-2, and for what he asserts is his illegal confinement due to
BOP officials’ refusal to apply the custody credit he maintains is mandated by § 3585(b), id. at 2-7.
3 This memorandum opinion and order are not available from the court’s electronic docket for review. 4 This memorandum opinion and order are not available from the court’s electronic docket for review. 5 The Court of Appeal for the Second Circuit also granted in part the appellees’ motions for imposition of a leave-to-file sanction, and warned Armstrong that “any future filings of frivolous, meritless, or duplicative appeals, motions, petitions, or other papers related to the civil and criminal proceedings discussed in [the order disposing of that appeal] may result in the imposition of a leave-to-file sanction, under which Armstrong will be required to obtain permission” before filing additional papers with the Second Circuit. Id.
-3- Presumably in an attempt to avoid dismissal on habeas jurisdictional grounds, the complaint states
that “Armstrong will also seek immediate release in a separate action.” Id. at 10. The sole subject of
the pending TRO, however, is the § 3585(b) issue, and the remedy sought is Armstrong’s immediate
release from his confinement under criminal sentence. See Mot. for TRO at 44 (seeking immediate
release as relief).
A. The Motion for a TRO
As this court has previously instructed Armstrong, “[h]abeas corpus is the exclusive remedy
for a federal prisoner bringing a claim that would have a ‘probablistic impact’ upon the duration of
his custody.” Armstrong v. Lappin, Civil Action No. 06-2221 (D.D.C. Dec. 28, 2006) (citing
Chatman-Bey v. Thornburgh, 864 F.2d 804, 809 (D.C. Cir. 1988) and Wilkinson v. Dotson, 544 U.S.
74, 81-82 (2005)). Therefore, because granting Armstrong’s TRO would have the effect of altering
the duration of his custody, he must pursue that relief through a habeas petition addressed to his
current custodian. Id. at 1-2.
In addition, the TRO will be denied because Armstrong has not made the showings required
to obtain a TRO, which include a showing of likelihood of success on the merits. Jacksonville Port
Authority v. Adams, 556 F.2d 52, 57 (D.C. Cir. 1977) (listing “[t]he familiar factors affecting the
grant of preliminary injunctive relief (1) likelihood of success on the merits, (2) irreparable injury to
the plaintiff, (3) burden on the others' interests, and (4) the public interest.” Particularly because
Armstrong seeks to alter, rather than to maintain, the status quo, he must be held to the stringent
standards imposed on a plaintiff seeking a TRO. Judicial Watch, Inc. v. Dep’t of Commerce, 501 F.
Supp. 2d 83, 91 & n.3 (D.D.C. 2007). In the face of the plain language of § 3585(b), Armstrong
-4- cannot demonstrate a likelihood of success on the merits. Section 3585(b) provides in full as
follows:
Credit for prior custody.--A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences--
(1) as a result of the offense for which the sentence was imposed; or
(2) as a result of any other charge for which the defendant was arrested after the commission of the offense for which the sentence was imposed;
that has not been credited against another sentence.
18 U.S.C. § 3585(b). Armstrong’s confinement for civil contempt of court was neither (1) the result
of the offense for which the [criminal] sentence was imposed nor (2) the result of any other charge
for which the defendant was arrested after the commission of the offense for which the sentence was
imposed. Rather, Armstrong’s confinement for civil contempt did not flow from any offense or
arrest; it stemmed directly from his refusal to produce documents and turnover assets as ordered by
the district court in a civil proceeding. Case law also undermines Armstrong’s argument. Section
3585 “allows credit only where the presentence detention resulted from ‘the offense for which the
sentence was imposed,’ or from ‘any other charge for which the defendant was arrested after the
commission of the offense for which the sentence was imposed.’ Plainly a civil contempt
confinement is not within these categories . . . .” Ochoa v. United States, 819 F.2d 366 (2d Cir.
1987) (quoting 18 U.S.C. § 3585(b)). In light of the plain language of the statue at issue and
pertinent case law, it cannot be said that Armstrong is likely to succeed on the merits of his claim.
Accordingly, his motion for TRO will be denied.6
6 Moreover, a showing of irreparable harm is required for a TRO. “Irreparable harm is an imminent injury that is both great and certain, and that legal remedies cannot repair.” City of
-5- B. The Complaint for Damages
Claims for damages under the FTCA are subject to special venue provisions. The venue
provision for FTCA claims requires that “[a]ny civil action on a tort claim against the United States
. . . be prosecuted only in the judicial district where the plaintiff resides or wherein the act or
omission complained of occurred.” 28 U.S.C. § 1402(b). The complaint alleges that Armstrong was
brutally attacked while confined at the MCC in New York. Accordingly, finding it in the interests of
justice and judicial economy to do so, the court will transfer this case to the district where venue is
proper. 28 U.S.C. § 1406.
III. CONCLUSION AND ORDER
For the reasons stated, it is hereby
ORDERED that the plaintiff’s motion for a TRO is DENIED. It is
FURTHER ORDERED that this case is TRANSFERRED to the United States District Court
for the Southern District of New York. The Clerk is directed to transmit this case.
HENRY H. KENNEDY, JR. July 2, 2009 United States District Judge
Moundridge v. Exxon Mobil Corp., 429 F. Supp. 2d 117, 127 (D.D.C. 2006) (citing Wis. Gas Co. v. Fed. Energy Regulatory Comm'n, 758 F.2d 669, 674 (D.C. Cir. 1985)). A claim for damages for the harm alleged, which is the claim Armstrong makes in his complaint, undermines a showing that the injury is incapable of being redressed by money damages.
-6-