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August 16, 1967

UNITED STATES of America ex rel. Ralph MASUCCI, Plaintiff,
Harold W. FOLLETTE, Warden, Green Haven Prison, Stormville, New York, Russell G. Oswald, Chairman, New York State Board of Parole; and Peter Esperdy, Commissioner of Immigration Service, Defendants

Wyatt, District Judge.

The opinion of the court was delivered by: WYATT

WYATT, District Judge.

This is a motion by defendant Esperdy to dismiss the action (a) under Fed.R.Civ.P. 12(b)(1) for lack of jurisdiction over the subject matter and (b) under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted.

 Masucci, who commenced this action, is at Green Haven Prison at Stormville in Dutchess County in the custody of the penal authorities of New York. He is apparently now serving a sentence imposed by a State court in Queens County on conviction, after plea of guilty, of attempted robbery in third degree (Penal Law, McKinney's Consol.Laws, c. 40, §§ 260, 261, 2128, 2129). Masucci is acting for himself, without the assistance of counsel.

 While the caption is framed as if this was a petition for a writ of habeas corpus, it appears that Masucci is attempting to prosecute a civil action. When the papers were first submitted, they were treated as a "complaint" in such an action and the order (by Judge Motley on February 24, 1967) allowing the filing in forma pauperis was on this basis and referred to the "complaint".

 After the notice of this motion by defendant Esperdy had been served, Masucci served notice of a motion for an order "dismissing" the moving affidavit on Esperdy's motion. That procedure by Masucci was, of course, unnecessary and improper but the papers submitted by him are treated as opposing the motion of Esperdy and have been considered in opposition.

 In opposing the motion, Masucci makes the highly technical point, among others, that the motion of defendant Esperdy was made after the time therefor had expired and when Esperdy, not having served an answer, was in default. This is the only point made by Masucci which can be sustained.

 Esperdy is sued as "Commissioner of Immigration Service" which he is not, but he is District Director of the Immigration and Naturalization Service for the New York District, and as such is an "officer or agency of the United States" (Fed.R.Civ.P. 4(d)(5)). Service of the summons and complaint must be made upon him as prescribed in Fed.R.Civ.P. 4(d)(4) and (5). The return of the Marshal shows that service was so made on April 7, 1967. He therefore had 60 days within which to answer or move. Fed.R.Civ.P. 12(a) and (b). Notice of the motion of Esperdy was mailed to Masucci, according to the proof of service, on June 9, 1967, and service was complete at that time (Fed.R.Civ.P. 5(b)). But the 60 day period had expired on June 6, 1967, three days before. The motion of Esperdy cannot be granted, therefore, in the absence of an enlargement of his time after motion under Fed.R.Civ.P. 6(b)(2).

 Masucci is proceeding, however, in forma pauperis and the statute which permits such a proceeding (28 U.S.C. § 1915) fully empowers the Court (in subsection (d) thereof) to "dismiss the case" of its own accord "if satisfied that the action is frivolous". See Stiltner v. Rhay, 322 F.2d 314, 317 (9th Cir. 1963), cert. denied Stiltner v. Washington, 376 U.S. 920, 84 S. Ct. 678, 11 L. Ed. 2d 615 (1964); Oughton v. United States, 310 F.2d 803 (10th Cir. 1962), cert. denied 373 U.S. 937, 83 S. Ct. 1542, 10 L. Ed. 2d 693 (1963); Gift Stars, Inc. v. Alexander, 245 F. Supp. 697, 701-702 (S.D.N.Y.1965).

 From a study of the papers and records, I am satisfied that this action is frivolous and will order dismissal on that basis under 28 U.S.C. § 1915(d).

 From the records submitted in this action, from other records on file in this Court and in the Court of Appeals, and from published reports of Supreme Court decisions, it clearly appears that Masucci has conducted a steady stream of frivolous litigation in the federal courts, endlessly bombarding them with papers. These papers require great effort to understand and some cannot be understood, but after study their simple object is apparent, namely, to compel the deportation of Masucci to Cuba in priority to service of the sentence imposed by the New York Court. It is plainly impossible as a matter of fact and of law to accomplish such a result: (a) because Masucci was born in the United States and is thus a citizen not subject to deportation, (b) because under the deportation statutes (8 U.S.C. §§ 1251, 1254) the Attorney General has discretion whether to deport or not and cannot be compelled to deport (see Jay v. Boyd, 351 U.S. 345, 76 S. Ct. 919, 100 L. Ed. 1242 (1956)), (c) because in any event and assuming Masucci to be an alien, there is no power to compel New York to surrender custody of a prisoner for deportation and the applicable statute (8 U.S.C. § 1252(h)) specifically directs that an alien sentenced to imprisonment shall not be deported until the sentence has been served, and (d) because even if there were such power and were no such statute as cited, Masucci would have no standing to invoke the power (Carson v. Executive Director, etc., 292 F.2d 468 (10th Cir. 1961); In re Andrews, 236 F. 300 (D.C.Vt.1916)).

 Masucci, born in this country, went to Cuba in 1959. He returned to this country in 1961 at which time he was admitted as a United States citizen (he may have been deported from Cuba).

 On December 13, 1963, Masucci and two others were indicted by a grand jury in Queens County for robbery in the first degree (Penal Law, §§ 2124, 2125) and other offenses. On April 27, 1964, in the Supreme Court, Queens County, Masucci pleaded guilty to robbery in the third degree and on July 24, 1964 he was sentenced as a second felony offender to imprisonment for from 5 to 10 years. According to papers submitted by Masucci, this conviction was vacated on December 17, 1965 after which he pleaded guilty to attempted robbery in third degree and was sentenced to imprisonment as a second felony offender for from 2 1/2 to 5 years.

 In 1965, Masucci filed in this Court a petition for a writ of habeas corpus (65 Civ. 948). Among other things, he seems to have claimed that he ought to be deported, that federal deportation has priority over a state sentence, and that the state should turn him over to federal authorities for deportation. Judge Palmieri rejected these (and all other) claims by order, with memorandum opinion, filed June 11, 1965 denying the petition. An application by Masucci for a certificate of probable cause (28 U.S.C. § 2253) and for leave to appeal in forma pauperis (28 U.S.C. § 1915(a)) was denied by Judge Palmieri on June 29, 1965 and by our Court of Appeals on February 2, 1966. A petition for a writ of certiorari was denied by the Supreme Court on April 18, 1966, Masucci v. Immigration and Naturalization Service, 384 U.S. 911, 86 S. Ct. 1354, 16 L. Ed. 2d 363. In this same action (65 Civ. 948) Masucci wrote to Judge Palmieri on August 3, 1966, raising a number of points; the letter was treated as a motion for reargument and was denied by order filed August 17, 1966. Thereafter Masucci applied to the Court of Appeals for assignment of counsel, leave to proceed in forma pauperis, etc. This application was denied by order dated April 5, 1967. Presumably Masucci is engaging the Supreme Court with a further petition for writ of certiorari.

 Another petition by Masucci for a writ of habeas corpus and raising substantially the same questions was presented to this Court in October 1966. By order filed October 24, 1966 this second petition was permitted to be filed in forma pauperis (66 Civ. 3517). The petition was denied by Judge Tyler by order, with memorandum opinion, filed January 9, 1967. The denial was because (1) Masucci was a citizen not subject to deportation, (2) he could not (under 8 U.S.C. § 1252(h)) be deported until his release from state confinement, (3) his claims had already been litigated, and (4) his claims were frivolous. Judge Tyler declared that the petitions were "an abuse of the remedy sought". Judge Tyler denied a certificate of probable cause (28 U.S.C. § 2253). An application for certificate of ...

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