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Case 1:13-cv-04098-RMB-KMW Document 2 Filed 07/11/13 Page 1 of 13 PageID: 33








Civil Action No.
13-4098 (RMB)


Bumb, District Judge:

This matter comes before the Court upon Plaintiff’s

submission of a civil complaint and an application to proceed in
this matter in forma pauperis (“IFP”). See Dkt. Ents. 1 and 1-1.
In light of: (1) Plaintiff’s IFP statements; and (2) what appears
to be the absence of three disqualifying “strikes,” the Court
will grant Plaintiff IFP status and, for the reasons detailed
below, will dismiss the complaint for failure to state a claim
upon which relief can be granted.1

1 It appears that, in addition to his criminal prosecution
conducted in the United States District Court for the District of
Delaware, see USA v. Woodson, Crim. No. 09-0117 (LPS)(D. Del.),
Plaintiff has been a party to civil actions of trial and
appellate levels in Woodson v. Payton, Civil No. 12-0302 (SLR)
(D. Del.), and USCA Index No. 12-2989 (3d Cir.), where the
District of Delaware dismissed his claim as frivolous, and the
Court of Appeals affirmed upon considering Plaintiff’s claims
under 28 U.S.C. § 1915(e)(2)(B) but not relying expressly on that
provision for the affirmance. See Woodson v. Payton, 503 F.
App’x 110 (3d Cir. Nov. 2, 2012). Yet, the Court of Appeals in

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As noted supra, Plaintiff has been criminally prosecuted in
the District of Delaware. See Woodson v. Payton, Civil No. 12-
0302 (SLR) (D. Del.). That prosecution came about when, “[i]n
the spring of 2009, [a] Delaware Probation . . . Officer
[handling Plaintiff’s probation] discovered that there was an
active warrant for [Plaintiff’s] arrest issued by the State of
Maryland . . . [Upon such discovery, the Probation Officer] took
[Plaintiff] into custody [and] conducted a . . . search [which
revealed] pills . . . [of] a controlled substance [that were
concealed on Plaintiff’s body and, in addition,] a loaded .357
revolver [that was found in Plaintiff’s car].” Id. at *2.

Plaintiff was thereafter indicted and convicted for being a
felon in possession of a firearm. (“Original Delaware Trial”).
See id. at *3.

On August 5, 2011, however, the court granted Plaintiff’s

motion for a new trial on the grounds that the court had
responded to the jury’s message out of the presence of Plaintiff

Woodson v. Payton noted that Plaintiff had another civil action
of trial level dismissed under Section 1915(e)(2)(B). See id. at
110, n.2 (citing Woodson v. Payton, Civil No. 10-0925 (D. Del.)).
Thus, it is certain that, as of now, Plaintiff has accrued at
least two “strikes” within the meaning of 28 U.S.C. § 1915(g),
even if the dismissal of his appeal in USCA Index No. 12-2889
cannot qualify as a “strike.” See Byrd v. Shannon, 715 F.3d 117
(3d Cir. 2013). Out of abundance of caution, this Court will
grant Plaintiff IFP status for the purposes of the instant
matter. However, the Court’s instant dismissal of Plaintiff’s
complaint adds the third “strike” within the meaning of Section


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and his counsel. USA v. Woodson, 2013 U.S. App. LEXIS 231, at
*2. The Government appealed that order, and the Court of Appeals
issued an affirmance dated January 4, 2013, see id. at *6.
Plaintiff was indicted again in April 2013. See USA v. Woodson,
Crim. No. 09-0117 (LPS) (D. Del.); see also Dkt. Ent. 1, at 2.
That April 2013 indictment (“Grand Jury”) is at the heart of the
instant matter.

Specifically, it appears that, sometime in July 2010 (that

is, between his spring 2009 arrest and his Original Delaware
Trial), Plaintiff had interactions with an individual, James
Runyon (“Runyon”), the within Defendant.2 See Dkt. Ent. 1, at 2.
During those interactions, Plaintiff made oral and written
statements to Runyon. See id. When Plaintiff’s April 2013 re-
indictment proceedings got underway, Runyon was either subpoenaed
or invited to testify -- as Plaintiff’s witness. However, the
testimony Runyon provided was not favorable to Plaintiff: Runyon
stated that Plaintiff tried to “corruptly persuade[]” him to
testify in Plaintiff’s favor, and that these attempts were made
“with intent to [unduly] influence [Runyon’s] testimony.” Id.3

2 It appears that Runyon is also an inmate and, for a

certain period of time, Plaintiff and Runyon were incarcerated at
the same correctional facility.

3 The Government asserts that Plaintiff’s interactions with

Runyon amounted to witness tampering, since, according to the

On the night before the trial, a witness subpoenaed by


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Now, Plaintiff claims that Runyon’s Grand Jury testimony:

resulted in Plaintiff[’]s incarceration, loss of
property (mortgaged home, four vehicles, incorporated
business of which Plaintiff was sole proprietor,
contents of mortgaged home, etc.) totaling over
$75,000, Plaintiff having to prepare a legal defense
against [Runyon’s] allegations to the grand jury . . .
and Plaintiff’s physical abuses sustained while

Id. at 3.

While, as the foregoing reveals, Plaintiff seeks damages, he

does not assert that Runyon’s Grand Jury testimony violated
Plaintiff’s civil rights. See, generally, Dkt. Ent. No. 1.

[Plaintiff], James Runyon, requested to speak with the
government. During an interview that evening by . . .
Special Agent Thomas Hoffman, Mr. Runyon revealed that
[Plaintiff] had asked Mr. Runyon to testify to a story
that was false. Mr. Runyon further provided the
government with two letters [Plaintiff] had written Mr.
Runyon in which [Plaintiff] detailed the false story
that Mr. Runyon was supposed to tell the jury. In the
letters, [Plaintiff] laid out in question-and-answer
format the story as Mr. Runyon was expected to testify.
Specifically, Mr. Runyon was supposed to testify that
he was with [Plaintiff] on the day of [Plaintiff’s]
arrest, and that [Plaintiff] was the passenger in the
Chevrolet Celebrity, with another man driving. If
true, this story could corroborate [Plaintiff’s]
argument that he was not in sole possession of the
[vehicle in which the loaded .357 revolver was found by
Plaintiff’s probation officer.] However, the story was
not true. In fact, Mr. Runyon did not meet [Plaintiff]
until the two were incarcerated together in August
2010, and therefore Mr. Runyon certainly was not with
[Plaintiff] on October 8, 2009.

USA v. Woodson, Crim. No. 09-0117 (LPS) (D. Del), Dkt. Ent. No.
362, at 2.


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Rather, Plaintiff maintains that Runyon’s testimony was a breach
of a certain written agreement executed between Plaintiff and
Runyon in 2010. See id. at 1. Apparently, while still facing
his Original Delaware Trial, Plaintiff had Runyon sign a document
titled “Agreement of Acquaintance.” Dkt. Ent. 1, at 8-9. That
document reads, in its entirety, as follows:

I, James Runyon, hereby acknowledge and agree that each
and every sentiment and concept expressed by
[Plaintiff], either in or out of [Runyon’s] direct
presence, either verbally, tacitly, written, or
otherwise conveyed by [Plaintiff] for the sole purpose
of [Runyon’s] and other’s in [Runyon’s] vicinity’s
entertainment, from the inception of [Runyon’s] and
[Plaintiff’s] acquaintance and its entire duration. At
no time will [Runyon] accept anything [Plaintiff]
conveys, in any way [Plaintiff] conveys it, as truth or
fact, or interpret it as that of a serious nature; no
matter what context or venue a particular sentiment or
concept is expressed in. Further, [Runyon] will not
relate any sentiment or concept expressed by
[Plaintiff] during [his and Plaintiff’s] acquaintance
as being truth or fact, or of a serious nature, to any
other party, either real or fictitious. The inception
of [Plaintiff’s] and [Runyon’s] acquaintance was
promulgated on approximately June 2010. Therefore, all
interaction, either direct or indirect, between
[Runyon] and [Plaintiff] after the aforesaid date is
subject to the foregoing acknowledgment and agreement.
I, James Runyon, also declare that I was not coerced in
any way into entering into the foregoing agreement.
Declaration Under Penalty of Perjury. I, James Runyon,
hereby declare pursuant to 28 U.S.C. § 1746 that the
foregoing statements are true and correct, and that
[Runyon[ will abide by concepts therein in all
instances of [Runyon’s] existence, and that [Runyon]
fully understand[s] that if any of the foregoing
statements are willingfully [sic] false then [Runyon
is][ subject to the penalties of perjury of the United
States, and subject to civil action. [Signatures,


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Plaintiff, therefore, seeks to invoke this Court’s diversity

jurisdiction so to sue Runyon for “violat[ing] the terms of the
[above-quoted] contract,” i.e., for testifying before Plaintiff’s
Grand Jury. Id. at 1-2. That claim is without merit.5

To start, this Court seemingly lacks proper jurisdiction
over this matter.6 Here, Plaintiff states that he has been “a

4 Meanwhile, in his District of Delaware criminal
proceedings, Plaintiff has made applications seeking suppression
and exclusion of Runyon’s testimony for the purposes of
Plaintiff’s re-trial. See USA v. Woodson, Crim. No. 09-0117
(LPS) (D. Del.), Dkt. Ents. No. 339 and 363.

5 Plaintiff’s current position is that Runyon was

contractually obligated to remain silent. However, that position
appears incompatible with Plaintiff calling Runyon as Plaintiff’s
Grand Jury witness. Thus, Plaintiff’s actual claim would be
better defined as an assertion that Runyon breached the agreement
by testifying against rather than in favor of Plaintiff.

6 Federal courts are obligated to determine whether they

have jurisdiction even if no party to an action has challenged
the same. See Packard v. Provident National Bank, 994 F.2d 1039
(3d Cir.), cert. denied sub nom. Upp v. Mellon Bank, N.A., 510
U.S. 964 (1993). “[A] plaintiff suing in a federal court must
show in his pleading, affirmatively and distinctly, the existence
of whatever is essential to federal jurisdiction, and, if he does
not do so, the court . . . must dismiss the case, unless the
defect be corrected by amendment.” Smith v. McCullough, 270 U.S.
456, 459 (1926). Federal courts have the mandate to exercise:
(a) federal question jurisdiction over the “issues arising under
the Constitution, laws, or treaties of the United States,” 28
U.S.C. § 1331; and (b) diversity jurisdiction over disputes
between citizens of different states. See 28 U.S.C. § 1332. A
diversity claim requires a showing of complete diversity in the
sense that “no plaintiff can be a citizen of the same state as
any of the defendants.” Midlantic Nat'l Bank v. Hansen, 48 F.3d
693 (3d Cir. 1995). As a matter of judicial gloss, this
formulation means that plaintiff (as the party asserting federal
jurisdiction) “must specifically allege each party’s citizenship,


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current resident” of the Commonwealth of Pennsylvania starting
April 2011. Dkt. Ent. 1, at 1. Yet, the fact that Plaintiff is
– and has been, for the last two years – an inmate housed at the
Federal Detention Center in Philadelphia, Pennsylvania, does not
supply Plaintiff with Pennsylvanian domicile. “For inmates,
citizenship for diversity purposes is the state in which the
inmate was domiciled prior to incarceration, unless the inmate
[establishes domicile by showing contacts and the intent to
remain] elsewhere when he is released[,] in which event
citizenship would be that state.”7 McCracken v. Murphy, 328 F.
Supp. 2d 530, 532 (E.D. Pa. 2004) (citing Flanagan v. Shively,

and these allegations must show that the plaintiff and defendant
are citizens of different states.” American Motorists Ins. Co.
v. American Employers’ Ins. Co., 600 F.2d 15, 16 (5th Cir. 1979);
see also Universal Reinsurance Co., Ltd. v. St. Paul Fire &
Marine Ins. Co., 224 F.3d 139, 141 (2d Cir. 2000) (“The failure
to allege [the party's] citizenship in a particular state is
fatal to diversity jurisdiction”).

7 For purposes of determining diversity, state citizenship
is equated with domicile. See Krasnov v. Dinan, 465 F.2d 1298,
1300 (3d Cir. 1972); Parr v. Grenko, 1993 U.S. Dist. LEXIS 9122,
at *3 (E.D. Pa. Jul. 9, 1993). Domicile, however, is not
necessarily synonymous with residence; one can reside in one
place and be domiciled in another. See id. Residence and an
intent to make the place of residence one’s home are required for
citizenship and to establish a new domicile. See id. Although
the analysis is necessarily case specific, courts have looked to
certain factors, including state of employment, voting, taxes,
driver's license, bank accounts and assets, and civic and
religious associations in determining the citizenship of an
individual. See Federal Practice & Procedure § 3612, at 530-31;
see also Juvelis v. Snider, 68 F.3d 648, 654 (3d Cir. 1995);
Krasnov, 465 F.2d at 1301; Connors v. UUU Prods., 2004 U.S. Dist.
LEXIS 6417, at *8 (E.D. Pa. Mar. 15, 2004).


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783 F. Supp. 922, 935 (E.D. Pa.), aff'd, 980 F.2d 722 (3d Cir.
1992)). Here, Plaintiff has shown no ties with Pennsylvania.
Thus, he had not met his burden of establishing his domicile.
Moreover, this Court, upon conducting its own research, located a
certain James H. Runyon serving his state sentence in New Jersey,
but the Court has no assurances that the located inmate is the
Defendant, or that inmate is domiciled in New Jersey. Indeed, it
might be that neither Plaintiff nor Runyon is domiciled in
Pennsylvania or in New Jersey, and they might not be diverse. If
so, this Court is without jurisdiction over this matter.
Even if the Plaintiff could cure the jurisdictional

deficiency, the Complaint is still subject to dismissal. First,
Runyon neither has, nor could have had any connection to the
injuries Plaintiff has asserted in this matter, such as
Plaintiff’s incarceration, or his alleged loss of real estate and
private property, or his alleged physical injuries sustained
during incarceration, because the incarceration, the conditions
of confinement, the alleged financial losses, and the like were a
result of Plaintiff’s arrest, conviction and imprisonment
associated with the Original Delaware Trial, in which Runyon
played no part.8

8 To the extent Plaintiff strives to assert that his
incarceration has been prolonged by Runyon’s Grand Jury
testimony, Plaintiff’s position lacks basis in both facts and law


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Moreover, if the Court were to factor out this shortcoming

as well, Plaintiff’s contractual claims are still are
unenforceable for lack of consideration. See, e.g., Dun &
Bradstreet Software Servs. v. Grace Consulting, Inc., 307 F.3d
197, 220 (3d Cir. 2002) (a trade contract for non-
disclosure/confidentiality is not enforceable if the plain
language of the agreement is silent as to the consideration given
to the one who undertakes the confidentiality obligation); accord
Restatement (Second) of Contracts § 71 (1981). Furthermore, even
if some form of a valid consideration could be fancied, the
agreement is still unenforceable because it is void as against
public policy.

While a confidentiality agreement can be used to safeguard

such matters as trade secrets, the “whistleblower-type
information about allegedly unlawful acts” does not fall into
that category. See, e.g., E.E.O.C. v. Astra U.S.A., Inc., 94

since – thus far – the District of Delaware presumed that
Runyon’s Grand Jury testimony would not have a substantial
relevance to the charges prosecuted against Plaintiff in that
matter. See USA v. Woodson, Crim. No. 09-0117 (PSL) (D. Del.),
Dkt. Ent. No. 351, at 11. In addition, Plaintiff’s claim for
damages based on the prolongation of his incarceration is
facially premature under the holding of Heck v. Humphrey, 512
U.S. 477 (1994), and it will remain premature until Plaintiff
obtains a state-court or federal habeas ruling establishing
undue prolongation of his incarceration on the basis of Runyon’s
testimony. Accord Edwards v. Balisok, 520 U.S. 641 (1997) (claim
for damages based on the prolongation of incarceration ensuing
from on an undue denial of parole ripens only upon the entry of a
favorable state-court or federal habeas ruling actually reducing
the inmate’s term of imprisonment by a specific period of time).


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F.3d 738, 741 (1st Cir. 1996); Peterson v. Seagate, 534 F. Supp.
2d 996, 999-1000 (D. Minn. 2008); accord Von Kesler v. Baker, 131
Cal. App. 654 (1933)(if the contract tended to obstruct and
impair the administration of justice, it was void as being
contrary to public policy, even if it is in a setting of a civil
trial); Wendt v. Walden Univ., 1996 U.S. Dist. LEXIS 1720 (D.
Minn. Jan. 16, 1996); Kalinauskas v. Wong, 151 F.R.D. 363 (D.
Nev. 1993); A foriori, a contract intended to bar a potential
witness from testifying at any stage of a criminal proceeding is
null and void ab initio, even if the contract itself fails to
provide sufficient basis to the penal charge of witness
tampering.9 See People v. Pic'l, 31 Cal. 3d 731 (Super. Ct.
L.A., 1982) (since, under the state law, any person that promised
to give any witness any bribe upon “understanding or agreement
that such person shall not attend trial if called as a witness”

9 Witness tampering is a crime. See 18 U.S.C. § 1512(b).
Correspondingly, a contract openly pursuing the goal of witness
tampering is necessarily void. See Restatement (Second) of
Contracts § 178(1) and cmt. a; but see United States v. Farrell,
126 F.3d 484, 490 (3d Cir. 1997) (observing that, “[b]ecause the
‘improper purposes’ that justify the application of § 1512(b) are
already expressly described in the statute, construing
‘corruptly’ to mean merely ‘for an improper purpose’. . . renders
the term surplusage, a result that we have been admonished to
avoid" and holding, narrowly, that a person who persuades someone
to invoke that someone’s actually implicated Fifth Amendment
right does not violate the statute). Here, however, Plaintiff
did not seek to encourage Runyon to invoke his Fifth Amendment
right; rather, he expressly tried to silence Runyon. Indeed,
Runyon would have no basis to invoke the Fifth Amendment. Accord
United States v. Kislyansky, 126 F. Supp. 2d 1076 (N.D. Ohio


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is guilty of a felony, there could not be a valid “understanding
or agreement” between the briber and the witness if they intended
to enter into such a bargain); accord United States v. Sussman,
709 F.3d 155, 169 and n.15 (clarifying the holding of United
States v. Davis, 183 F.3d 231 (3d Cir. 1999), by pointing out
that only “an investigation simpliciter [by the executive branch
agents] is not enough to trigger § 1503,” while interferences
with administration of justice within, for instance, the grand
jury context, amounts to a violation of Section 1503) (citing
United States v. Simmons, 591 F.2d 206 (3d Cir. 1979)); cf. 81
Am. Jur. 2d (Witnesses) § 67 (“[if] the contract offers
enticement . . . tends . . . to pervert the course of justice, it
is contrary to public policy and void”); Spillman v. First Bank
of Nickerson, 114 Neb. 423, 430 (1926) (“If an agreement binds
the parties or either of them to do, or if the consideration is
to do, something opposed to the public policy of the state or
nation, it is illegal and absolutely void, however solemnly made.
. . . In other words, its validity is determined by its general
tendency at the time it is made, and if this is opposed to the
interests of the public it will be invalid, even though the
intent of the parties was good and no injury to the public would
result in the particular case. The test is the evil tendency of
the contract, and not its actual injury to the public in a
particular instance”) (citation omitted).


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In conclusion, Plaintiff’s agreement with Runyon is void and
cannot be enforced. Correspondingly, his contractual challenges
are without merit.10 Finally, even if the Court were to stretch
Plaintiff’s claims and read them as a civil rights claim alleging
that Runyon’s grand jury testimony violated Plaintiff’s rights,
the complaint at bar would still have to be dismissed, because
witnesses are absolutely immune from challenges based on their
testimonies given during trial and pre-trial stages, including
grand jury proceedings conducted in criminal actions. See
Rehberg v. Paulk, 132 S. Ct. 1497 (2012); Kulwicki v. Dawson, 969
F.2d 1454, 1467 n.16 (3d Cir. 1992). In other words, no matter
how this Court were to construe the claims, Plaintiff’s pleading
fails to state a claim upon which relief can be granted.

Ordinarily, a plaintiff may be granted “leave [to amend,] .

10 This Court need not reach the issue of whether Plaintiff’s

agreement with Runyon amounted to witness tampering: that issue
is properly before Plaintiff’s trial judge in the District of
Delaware. Analogously, this Court need not reach the issue of
whether Runyon’s statements should be suppressed: that issue is
too properly before Plaintiff’s trial judge. Indeed, Plaintiff’s
instant action raises the very concerns that underlie the
holdings of Heck and Balisok, since in this civil action
Plaintiff strives to attack Runyon’s past and upcoming testimony
that the District of Delaware allowed in Plaintiff’s criminal re-
trial. Since Plaintiff’s District of Delaware submissions
(seeking suppression of Runyon’s statements and opposing the
Government’s application for admission of evidence of witness
tampering) were made on the very day when Plaintiff submitted for
filing the complaint within, see Instant Matter, Dkt. Ent. 1;
compare USA v. Woodson, Crim. No. 09-00117 (D. Del), Dkt. Ents.
360 and 362-66, this Court will direct the Clerk to serve a
complimentary copy of this Opinion upon Hon. Leonard P. Stark,
the judge presiding over Plaintiff’s current re-trial.


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. . when justice so requires.” Foman v. Davis, 371 U.S. 178, 182
(1962); Lorenz v. CSX Corp., 1 F.3d 1406, 1414 (3d Cir. 1993).
However, “[a]llowing leave to amend where there is a stark
absence of any suggestion by the plaintiffs that they have
developed any facts since the action was commenced, which would,
if true, cure the defects in the pleadings" would frustrate the
Court's ability to filter out lawsuits that have no factual
basis. Cal. Pub. Emples'. Ret. Sys. v. Chubb Corp., 394 F.3d
126, 164 (3d Cir. 2004) (internal quotation marks and citations
omitted). Here, Plaintiff’s allegations are as detailed as they
are barren of a viable claim. Since Plaintiff would not be able
to cure this core defect by repleading, no leave to amend is

For the foregoing reasons, Plaintiff’s application to

proceed in this matter in forma pauperis, Dkt. Ent. 1-1, will be
granted. Plaintiff’s Complaint, Dkt. Ent. 1, will be dismissed.
Such dismissal will be with prejudice.

An appropriate Order follows.

s/Renée Marie Bumb
Renée Marie Bumb
United States District Judge

Dated: July 11, 2013