Opinion
Civ. No. 6:18-cv-00230-MK
10-16-2019
CASEY DALE MAYER, Plaintiff, v. UNITED STATES OF AMERICA, ERIC HOLDER, SALLY Q. YATES, FRANK R. PAPAGNI, Defendants.
FINDINGS AND RECOMMENDATIONS KASUBHAI, Judge :
Defendants filed a motion to dismiss Plaintiff's claims under Federal Rule of Civil Procedure 12(b)(6). Mot. Dismiss, ECF No. 46. Pro se Plaintiff alleges negligence, and constitutional violations of his Fifth and Eighth Amendment rights. Compl., ECF No. 1. For the reasons discussed below, the Court should dismiss Plaintiff's claims with prejudice because amendment would be futile.
Although Plaintiff alleges Fifth and Eight Amendment violations, he fails to cite under which statute he brings the claims. The Court construes the claims as brought pursuant to 42 U.S.C. § 1983.
BACKGROUND
In 2005, Defendants prosecuted Plaintiff as a felon in possession of a firearm under the Armed Career Criminal Act ("ACCA"). Compl. ¶ 23, ECF No. 1. Plaintiff alleges that his prior Oregon burglary conviction qualified as a predicate offense under the ACCA's "residual clause," and based on that clause, Defendants sentenced Plaintiff to 180 months in prison. Id. at ¶¶ 23-24. Plaintiff claims that in 2015, while he was in prison, the United States Supreme Court ruled that the ACCA's residual clause was void for vagueness and violated due process. Id. at ¶¶ 24-25 (citing Johnson v. United States, 135 S. Ct. 2551 (2015). Plaintiff alleges that the 180-month sentence he received under the ACCA exceeded the otherwise usual sentencing guideline of approximately 57 months. Id. Plaintiff alleges he served in excess of seven years over the 57-month guideline due to sentencing based on the unconstitutional ACCA residual clause. Id. at ¶¶ 25-26. Plaintiff prays for $2,791,250 for loss of wages, pain and suffering, and loss of familial association. Id. at ¶ 27.
Plaintiff claims that Defendants Holder, Yates, and Papagni violated his constitutional rights by prosecuting him for a statue later held unconstitutional. Id. at ¶¶ 10-13. Plaintiff claims that the United States acted negligently through the Department of Justice, Eric Holder, Sally Q. Yates, Karin J. Immergut, and Frank Papagni, by breaching the duty of care when enforcing and prosecuting an unconstitutional statute resulting in Plaintiff's unlawful imprisonment. Id. at ¶ 17.
District Judge Immergut is not named as a party in this suit, but Plaintiff refers to her in her capacity as United States Attorney for the District of Oregon at the times material to this suit. Id. at ¶ 17.
In their motion to dismiss, Defendants argue that Plaintiff's claims must be dismissed because federal prosecutors are entitled to absolute prosecutorial immunity, and that prosecutorial immunity extends to Defendant United States under the plain terms of the Federal Tort Claims Act ("FTCA"). Mot. Dismiss 1, 8, ECF No. 46. Defendants also argue that Plaintiff's federal tort claim is both insufficiently pleaded and untimely. Id. at 1. Finally, Defendants also claim that Plaintiff failed to state a Bivens claim. Id. at 4.
LEGAL STANDARD
A motion to dismiss for failure to state a claim may be granted only when there is no cognizable legal theory to support the claim or when the complaint lacks sufficient factual allegations to state a facially plausible claim for relief. Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). In evaluating the sufficiency of a complaint's factual allegations, the court must accept as true all well-pleaded material facts alleged in the complaint and construe them in the light most favorable to the non-moving party. Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012); Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010). To be entitled to a presumption of truth, allegations in a complaint "may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively." Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). All reasonable inferences from the factual allegations must be drawn in favor of the plaintiff. Newcal Indus. v. Ikon Office Solution, 513 F.3d 1038, 1043 n.2 (9th Cir. 2008). The court need not, however, credit the plaintiff's legal conclusions that are couched as factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).
A complaint must contain sufficient factual allegations to "plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation." Starr, 652 F.3d at 1216. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). "The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully." Mashiri v. Epstein Grinnell & Howell, 845 F.3d 984, 988 (9th Cir. 2017) (quotation marks omitted).
DISCUSSION
Individual Defendants are entitled to prosecutorial immunity for their actions in prosecuting Plaintiff under the ACCA residual clause even though it was later ruled unconstitutional. Defendant United States is also entitled to immunity, because the prosecutorial immunity afforded the individual defendants extends to the United States, and because Plaintiff's claims are barred by the plain language of the FTCA.
1. Individual Defendants are Entitled to Absolute Prosecutorial Immunity
Defendants claim that Plaintiff fails to adequately plead a Bivens claim. Mot. Dismiss 4, ECF No. 46. For background purposes, in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, the Supreme Court held that a plaintiff could sue federal officers in their individual capacity for economic damages resulting from officers violating the plaintiff's constitutional rights. 403 U.S. 388, 396 (1971).
However, even if a Bivens claim is properly pled, an action under Bivens must be dismissed if the defendant is immune from suit. Hui v. Casteneda, 559 U.S. 799, 807 (2010) (citing Bivens, 403 U.S. at 397-98). The Court does not reach the merits of the potential Bivens action here, instead recommending that even if Plaintiff had properly pled such a claim, the individual defendants should be held immune from suit.
Federal prosecutors are entitled to absolute immunity in § 1983 claims for functions "intimately associated with the judicial phase of the criminal process," and when the prosecutor acts as an "advocate for the state." Garmon v. Cty. of Los Angeles, 828 F.3d 837, 842 (2016) (citing Imbler v. Pachtman, 424 U.S. 409, 427 (1976)). Prosecutorial immunity protects prosecutors acting as an "advocate for the state, and for "actions preliminary to the initiation of a prosecution and actions apart from the courtroom." Lacey v. Maricopa Cty., 693 F.3d 896, 912 (2012) (internal citations omitted). Specific acts, such as organizing and analyzing evidence and the law, and presenting evidence and analysis to the Court and grand juries, are protected. Id. at 913.
In determining whether a prosecutor's actions are absolutely immune or entitled only to qualified immunity, courts focus on the nature of the function performed by the prosecutor. Garmon, 828 F.3d at 843. For instance, prosecutors performing purely administrative functions may be entitled to qualified immunity but not absolute immunity. Id. But administrative acts requiring legal knowledge and the exercise of legal discretion, and which are connected to the trial process, are protected by prosecutorial immunity. Lacey, 693 F.3d at 912. (internal quotation marks and citation omitted).
If the prosecutor's actions are protected by prosecutorial immunity, then "[p]rosecutors are absolutely immune from liability for the consequences of their advocacy, however inept or malicious, because it is filtered through a neutral and detached judicial body[.]" Lacey, 693 F.3d at 913 (citing Burns v. Reed, 500 U.S. 478, 495-96 (1991)).
In this case, the allegations against the individual Defendants rest on Defendants' decision and actions undertaken to prosecute Plaintiff under a federal law that in 2005 had not yet been ruled unconstitutional. The decision to prosecute Plaintiff is protected by absolute prosecutorial immunity because that decision falls squarely within the prosecutor's role as an advocate for the government. Defendants are also entitled to absolute immunity for preliminary determinations taken to advance the case through the judicial process. Defendants are entitled to absolute immunity for functions undertaken in the course of litigating this case through sentencing. Further, as Defendants point out, "a prosecutor's failure to foresee a change in constitutional jurisprudence does not violate the Constitution." Mot. Dismiss 5, ECF No. 46 (citing cf. Stein v. Ryan, 662 F.3d 1114, 1117-19 (9th Cir. 2011)) (holding that executive branch employees have no duty to uncover a change in applicable law that impacts a sentence and that failure to do so does not violate the Due Process clause). Here, the Defendants had no duty to suspect or anticipate a change in the Court's jurisprudence regarding the ACCA's residual clause.
Moreover, Defendants here did not sentence Plaintiff in 2005. The Court sentenced Plaintiff, and as discussed above, Defendants should be found entitled to absolute prosecutorial immunity for their actions related to the judicial process leading to the Court's imposition of Plaintiff's sentence.
2. The United States is Entitled to Immunity from Suit.
The Court should find Defendant United States entitled to immunity from suit on two grounds. First, the absolute prosecutorial immunity protecting the individual defendants in this matter extends to the United States. Second, the United States retains its sovereign immunity regarding Plaintiff's tort claim because suits against the United States for false imprisonment are barred by the plain language of 28 U.S.C. § 2860(h).
a. Prosecutorial Immunity
Because the individual Defendants in this case are entitled to absolute prosecutorial immunity from suit, so too is Defendant United States. Under the FTCA, "[w]ith respect to any claim under this chapter, the United States shall be entitled to assert any defense based upon judicial or legislative immunity which otherwise would have been available to the employee of the United States whose act or omission gave rise to the claim, as well as any other defenses to which the United States is entitled." See 28 U.S.C. § 2674. Therefore, Defendant United States is entitled to absolute prosecutorial immunity based on the premise that its employees, the named individual Defendants, are entitled to absolute prosecutorial immunity for their advocacy of the government's position in Plaintiff's judicial proceedings.
b. Immunity under 28 U.S.C. § 2680(h)
The FTCA waives the United States' sovereign immunity for certain torts, 28 U.S.C. §§ 1346(b)(1), 2674. However, the United States should be held immune from Plaintiff's negligence claim in this case because the FTCA specifically excepts "[a]ny claim arising out of ... false imprisonment" from its waiver of immunity. Id. § 2680(h) and the gravamen of Plaintiff's complaint alleges false imprisonment.
Although Plaintiff identifies his tort claim as a negligence claim, "[t]his circuit looks beyond the labels used to determine whether a proposed claim is barred [under § 2680(h) ]." Thomas-Lazear v. FBI, 851 F.2d 1202, 1207 (9th Cir. 1988). "[W]e look beyond [the party's] characterization to the conduct on which the claim is based." Mt. Homes, Inc. v. United States, 912 F.2d 352, 356 (9th Cir.1990); see also Klein v. United States, 268 F.2d 63, 64 (2d Cir.1959) (per curiam) (examining the conduct behind a claim of negligence); Sopp v. United States, 373 F.2d 795, 796 (3d Cir.1966) (per curiam) (same); Gaudet v. United States, 517 F.2d 1034, 1035 (5th Cir.1975) (per curiam) (same); Metz v. United States, 788 F.2d 1528, 1534 (11th Cir.1986) (same). If the gravamen of Plaintiff's complaint is a claim for an excluded tort under § 2680(h), then the claim is barred. See Sheehan v. United States, 896 F.2d 1168, 1171 (9th Cir. 1990) ("Regardless of the plaintiff's characterization of the cause of action, § 2680(h) bars suit for claims based on conduct which constitutes one of the excepted torts...."). To "hold otherwise would permit evasion of the substance of [§ 2680(h)'s] exclusion of liability." Id.
In this case, although Plaintiff titles his first claim as "Negligence," the gravamen of the complaint is a claim for false imprisonment. Compl. ¶ 27, ECF No. 1. The harm alleged is that the United States kept Plaintiff imprisoned in excess of seven years beyond what Plaintiff claims was constitutional. Id. In a similar case, where the Plaintiff claimed that the United States imprisoned her for 311 days too long, the Court held that
Independent of that alleged false imprisonment, Plaintiff has no claim—as we said of another tort, "the Government's actions that constitute a claim for slander are essential to [Plaintiff's] claim for negligen[ce]." Thomas-Lazear, 851 F.2d at 1207. Plaintiff cannot sidestep the FTCA's exclusion of false imprisonment claims by suing for the damage of false imprisonment under the label of negligence. See id. at 1206 (disapproving "an effort to remove the damage element from an intentional tort barred by section 2680(h) and plead it separately as negligen[ce]"); see also Sheehan, 896 F.2d at 1173 (requiring independence from the excluded tort) (citing Block v. Neal, 460 U.S. 289, 296-99, 103 S.Ct. 1089, 75 L.Ed.2d 67 (1983)).Snow-Erlin v. United States, 470 F.3d 804, 808-09 (9th Cir. 2006).
In summary, we hold that Plaintiff's claim arises out of false imprisonment and thus is barred by 28 U.S.C. § 2680(h).
The same reasoning applies here, and results in the same outcome. The gravamen of Plaintiff's complaint is that the United States falsely imprisoned him. This tort is barred as an exception to the FTCA, and thus the Court should hold that the United States retains sovereign immunity from suit.
For the reasons discussed above, Defendant United States should be found entitled to immunity from this suit.
RECOMMENDATION
For the reasons discussed above, Defendants' motion to dismiss Plaintiff's claims (ECF No. 46) should be GRANTED. The Court should conclude that all defendants are entitled to immunity from suit. Plaintiff's claims should be dismissed with prejudice because amendment would be futile.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation.
DATED this 16th day of October 2019.
s/ Mustafa T. Kasubhai
MUSTAFA T. KASUBHAI
United States Magistrate Judge