No. 07-5134.United States Court of Appeals, District of Columbia Circuit.
Filed On: November 23, 2007.
BEFORE Sentelle, Randolph, and Brown, Circuit Judges.
Upon consideration of the motion for appointment of counsel; and the motion for summary affirmance, the response thereto, and the reply, it is.
ORDERED that the motion for appointment of counsel be denied. With the exception of defendants appealing or defending in criminal cases, appellants are not entitled to appointment of counsel when they have not demonstrated sufficient likelihood of success on the merits. It is.
FURTHER ORDERED that the motion for summary affirmance be granted. The merits of the parties’ positions are so clear as to warrant summary action. SeeTaxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 297
(D.C. Cir. 1987) (per curiam). The district court properly dismissed the claims against appellee U.S. Parole Commission as barred by sovereign immunity. See Settles v. U.S.Parole Commission, 429 F.3d 1098, 1105 (D.C. Cir. 2005) (and cases cited therein). Similarly, the claims filed against the named Commissioner and hearing examiner in their official capacities were also properly dismissed as barred by sovereign immunity. See Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). The district court properly determined it lacked personal jurisdiction over the named Commissioner and hearing examiner in their individual capacities, because they had no contacts with the District of Columbia and because appellant did not meet his burden of demonstrating that the District of Columbia’s long-arm jurisdiction could be exercised over these two individuals. Cf. First ChicagoInternat’l v. United Exchange Co., 836 F.2d 1375, 1378
(D.C. Cir. 1988) (plaintiff carries burden of demonstrating personal jurisdiction); GTE New Media Services, Inc. v.BellSouth Corp., 199 F.3d 1343, 1347 (D.C. Cir. 2000)
(two-part analysis to demonstrate long-arm jurisdiction). To the extent any of appellant’s claims sound in habeas, the district court properly dismissed them. SeeRumsfeld v. Padilla, 542 U.S. 426, 434-35 (2004) (habeas claims must be brought in the jurisdiction in which appellant’s warden is located). Nor did the district court abuse its discretion by denying the motion for class certification.See Fed.R.Civ.P. 23; Richards v. Delta AirLines, Inc., 453 F.3d 525, 529 (D.C. Cir. 2006).
As for appellant’s claims for injunctive relief against unspecified “Appellee(s),” because the district court dismissed the complaint without prejudice, appellant may file a new complaint seeking injunctive relief, although this court does not provide any assurance whether such a complaint would be successful. See Will v. Michigan Dep’t of StatePolice, 491 U.S. 58, 71 n. 10 (1989).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc.See Fed.R.App.P. 41(b); D.C. Cir. Rule 41.
Upon consideration of the trust account report, and the consent to collection of fees, it is.
ORDERED that, pursuant to appellant’s consent to collection of fees, appellant’s custodian be directed to pay on appellant’s behalf the initial partial filing fee of $138.04, to be withheld from appellant’s trust fund account. See28 U.S.C. § 1915(b)(1). The payment must be by check or money order made payable to Clerk, U.S. District Court for the District of Columbia.
Appellant’s custodian also is directed to collect and pay from appellant’s trust account monthly installments of 20 per cent of the previous month’s income credited to appellant’s account, until the full $455 docketing fee has been paid. See28 U.S.C. § 1915(b)(2). Such payments must be made each month the amount in the account exceeds $10 and must be designated as made in payment of the filing fee for Case No. 07-5134, an appeal from Civil Action No. 06cv0235. A copy of this order must accompany each remittance. In the event appellant is transferred to another institution, the balance due must be collected and paid to the Clerk by the custodian at appellant’s next institution. Appellant’s custodian must notify the Clerk, U.S. District Court for the District of Columbia, in the event appellant is released from custody.
The Clerk is directed to send a copy of this order to appellant, by whatever means necessary to ensure receipt, and to the Clerk, U.S. District Court for the District of Columbia. The Clerk is further directed to send to appellant’s custodian a copy of this order and appellant’s consent to collection of fees.