                               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-
