Opinion
23-cv-23912-ALTMAN/Reid
10-31-2023
HUGO PENA, Plaintiff, v. JAIME RAICH, Defendant.
Hugo Pena, pro se
Hugo Pena, pro se
ORDER DENYING MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS
ROY K. ALTMAN, UNITED STATES DISTRICT JUDGE
Our Plaintiff, Hugo Pena, has filed a Motion for Leave to Proceed in Forma Pauperis [ECF No. 8] in his lawsuit against former Assistant U.S. Attorney Jaime Raich. But, because his Complaint [ECF No. 6-1] fails to state a claim on which relief may be granted, we now DENY the Motion for Leave to Proceed in Forma Pauperis and DISMISS the Complaint with prejudice under 28 U.S.C. § 1915(e)(2)(B)(ii). We dismiss the Complaint with prejudice because there's no way that Pena can circumvent Raich's absolute immunity.
The Law
A court may authorize a party to proceed in forma pauperis in any suit so long as that party complies with the prescriptions of 28 U.S.C. § 1915. But the court must screen such cases and must dismiss a complaint if it concludes that “the action or appeal . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); see also Mitchell v. Farcass, 112 F.3d 1483, 1486 (11th Cir. 1997) (explaining the grounds for dismissal under § 1915).
To state a claim upon which relief may be granted, a complaint's factual allegations “must be enough to raise a right to relief above the speculative level”-with “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007). Under this standard, legal conclusions “are not entitled to the assumption of truth” and are insufficient to state a claim. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.” Id. at 678 (cleaned up).
Although “pro se pleadings are held to a more lenient standard than pleadings filed by lawyers,” Abram-Adams v. Citigroup, Inc., 491 Fed.Appx. 972, 974 (11th Cir. 2012), that “‘leniency does not give a court license to serve as de facto counsel for a party' or ‘rewrite an otherwise deficient pleading in order to sustain an action,'” Curtiss v. Comm'r of Soc. Sec., 856 Fed.Appx. 276, 276 (11th Cir. 2021) (quoting GJR Inv., Inc. v. Cnty. of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1989)). Pro se litigants “cannot simply point to some perceived or actual wrongdoing and then have the court fill in the facts to support their claim .... [J]udges cannot and must not ‘fill in the blanks' for pro se litigants; they may only cut some ‘linguistic slack' in what is actually pled.” Hanninen v. Fedoravitch, 2009 WL 10668707, at *3 (S.D. Fla. Feb. 26, 2009) (Altonaga, J.) (cleaned up).
Analysis
Pena, acting pro se, claims that Raich acted dishonestly and in violation of the law when he led a 2010 federal prosecution against Pena for violations of the Act to Prevent Pollution from Ships (“APPS”), 33 U.S.C. §§ 1901-15. See Complaint at 1 (“[Pena], appearing] Pro Se, brings this complaint against [Raich] for Obstruction of Justice, deceiving the subject Judge and the Jury when acting as Assistant United States Attorney [in] case [10-cr-60158].”).According to the Plaintiff, Raich framed Pena-a licensed marine surveyor for the Panama Maritime Authority-to make it appear as though he had participated in an illegal scheme to manipulate Motor Vessel Island Express I's oily water separator, so that it would pump oil overboard rather than into storage tanks. See id. ¶ 12 (“Raich[,] knowing[ ] that Pena did not commit any offense in the prosecutor's jurisdiction[] by bribery[ ] protected] the criminal [vessel owner, crew, and port engineer].”) Raich's actions, Pena continues, constitute violations of several criminal statutes and Pena's rights under the Fourth, Fifth, Sixth, and Fourteenth Amendments to the U.S. Constitution. See id. ¶ 1. As relief, Pena asks that we “remedy [his] conviction.” Id. ¶ 24.
While it appears that English isn't Pena's first language, we understand his allegations.
At all relevant times, Pena has been a U.S. citizen living and working in Florida. See Complaint ¶ 5 (noting that Pena is a naturalized American citizen); id. ¶ 11 (alleging that the events that triggered the 2010 criminal prosecution occurred in Broward County, Florida).
There are several procedural issues with the Complaint. First, it doesn't include “a short and plain statement of the claim showing that the pleader is entitled to relief,” as required by FED. R. CIV. P. 8(a)(2). Second, it asserts several different causes of action-without separating them into different counts. See Embree v. Wyndham Worldwide Corp., 779 Fed.Appx. 658, 662 (11th Cir. 2019) (noting that a complaint is a “shotgun pleading” if, among other things, it “fails to separate into a different count each cause of action”). Third, Pena has tried to bring a civil action under several federal criminal statutes. See Complaint ¶ 1. Specifically, he's tried to advance claims under 18 U.S.C. § 1512 (“Tampering with a witness, victim, or an informant”); 18 U.S.C. § 1513 (“Retaliating against a witness, victim, or an informant”); 18 U.S.C § 1519 (“Destruction, alteration, or falsification of records in Federal investigations and bankruptcy”); 18 U.S.C. § 242 (“Deprivation of rights under color of law”). Because none of these criminal statutes provides a private cause of action, he may not assert them in this civil case. See Smith v. JP Morgan Chase Bank, 2020 WL 9598942, at *2 (N.D.Ga. May 13, 2020) (Larkins III, Mag. J.) (holding that, because a “cause of action” was “premised upon violations of federal criminal statutes” that didn't create private causes of action, it “fail[ed] to state a claim for relief”); see also Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (“[A] private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another.”); Diamond v. Charles, 476 U.S. 54, 65 (1986) (“The power to create and enforce a legal code, both civil and criminal, is one of the quintessential functions of a State.” (cleaned up)).
Pena says: “This is an action for damages pursuant to 18 U.S.C. Cha[p]ter 73[,] Obstruction of Justice, Cause of Action for witness tampering (18 U.S.C. § 1512), witness retaliation (18 U.S.C. § 1513), Destruction, alteration, or falsification of records in a federal investigation[ ] (18 U.S.C. § 1519), Deprivation of Rights Under Color of Law (18 U.S.C. § 242) and the continuing violations of Plaintiff['s] rights under the Fourth, Fifth, Sixth, and Fourteenth Amendments[.]” Id. ¶ 1 (errors in original). But he makes no attempt to separate each of these causes of action into different counts.
See Roberts v. Choate Constr. Co., 2011 WL 5006469, at *2 (M.D. Fla. Oct. 20, 2011) (Corrigan, J.) (“[Section] 1512 does not provide any language that creates a private right of action.”); Brett v. Baker, 2016 WL 2731626, at *2 (M.D. Fla. Apr. 22, 2016) (Smith, Mag. J.) (same, but for § 1513); Smith v. JP Morgan Chase Bank, 2020 WL 9598942, at *1 (N.D.Ga. May 13, 2020) (Larkins III, Mag. J.) (same, but for § 1519); Mosley v. Awerbach, 2006 WL 2375050, at *6 (M.D. Fla. Aug. 15, 2006) (Whittemore, J.) (same, but for § 242).
Theoretically, Pena could redress each of these errors in an amended complaint. And the Eleventh Circuit has said that, generally speaking, “a party must be given at least one opportunity to amend before [dismissing] the complaint.” Corsello v. Lincare, Inc., 428 F.3d 1008, 1014 (11th Cir. 2005). But we needn't grant leave to amend where any such amendment would be futile. See L.S. ex rel. Hernandez v. Peterson, 982 F.3d 1323, 1332 (11th Cir. 2020) (“Although a district court ‘should freely give leave [to amend] when justice so requires,' it may deny leave, sua sponte or on motion, if amendment would be futile. Leave to amend would be futile if an amended complaint would still fail at the motion-to-dismiss or summary judgment stage.” (quoting FED. R. CIV. P. 15(a)(2) (internal citations omitted))). This rule also applies to pro se litigants. See Jemison v. Mitchell, 380 Fed.Appx. 904, 907 (11th Cir. 2010) (“When it appears that a pro se plaintiff's complaint, if more carefully drafted, might state a claim, the district court should give the pro se plaintiff an opportunity to amend his complaint instead of dismissing it with prejudice. Dismissal with prejudice is proper, however, . . . if a more carefully drafted complaint could not state a valid claim.” (internal citations omitted)). And this is one of those cases in which any emendation would be futile.
Pena, after all, is suing Raich for actions the latter took as a federal prosecutor. “[O]ur circuit has emphasized,” however, “that[ ] ‘a prosecutor enjoys absolute immunity from allegations stemming from the prosecutor's function as advocate.” Hart v. Hodges, 587 F.3d 1288, 1295 (11th Cir. 2009) (quoting Jones v. Cannon, 174 F.3d 1271, 1281 (11th Cir. 1999)). This absolute immunity applies to a wide range of conduct, such as a “prosecutor's actions ‘in initiating a prosecution and in presenting the government's case,' . . . prosecutorial conduct before grand juries, statements made during trial, examination of witnesses, and presentation of evidence in support of a search warrant during a probable cause hearing.” Rehberg v. Paulk, 611 F.3d 828, 837-38 (11th Cir. 2010) (quoting Imbler v. Pachtman, 424 U.S. 409, 431 (1976)). A prosecutor only relinquishes his absolute immunity when he's sued for conduct “not associated with his role as an advocate for the [government.]” Hart, 587 F.3d at 1296. Indeed, even a prosecutor who has “fil[ed] an information without investigation, fil[ed] a baseless detainer, offer[ed] perjured testimony, suppressed] exculpatory evidence, . . . and threatened] further criminal prosecutions” enjoys absolute immunity. Ibid. (quoting Henzel v. Gerstein, 608 F.2d 654, 657 (5th Cir. 1979)).
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down before October 1, 1981.
The gravamen of Pena's complaint is that Raich fabricated or manipulated evidence-and that he lied to the judge and jury-during his prosecution of Pena's case. See Complaint at 1 (“Lawsuit against Raich for Abuse of power, willfully did alters, destroys, mutilates, or conceals a record, document, or other objects/victim, or availability for use in an official proceeding; protecting the criminal (Vessel Corporation), betraying the APPS (MARPOL), with FALSE TESTIMONY, INTIMIDATING WITNESS, deceiving the USCG, betraying the law in continued violation of Constitutional Federal Law and damaged the integrity of the Plaintiff[.]” (errors in original)). How exactly Raich did all this is irrelevant since it's clear that Pena is only challenging Raich's actions in bringing and maintaining a prosecution against him. See Hart, 587 F.3d at 1295 (noting that a prosecutor's “absolute immunity ‘extends to a prosecutor's acts undertaken in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his role as an advocate for the [government]'” (quoting Jones, 174 F.3d at 1281)). Nor does the fact the Raich is no longer a prosecutor save Pena's claims: What matters is that Raich was a prosecutor when he was prosecuting Pena. See Van de Kamp v. Goldstein, 555 U.S. 335, 349 (2009) (finding that two former prosecutors enjoyed absolute immunity from claims stemming from actions they took when they were prosecutors). Because Raich is immune from suit for his role as Pena's prosecutor, the Complaint cannot be amended to state a viable claim upon which relief can be granted and must be dismissed with prejudice. See Myrick v. Sterling, 2008 WL 595944, at *5 (N.D. Fla. Feb. 28, 2008) (Rodgers, J.) (dismissing with prejudice- after an initial 28 U.S.C. § 1915(e)(2)(B) screening-claims brought against a prosecutor who enjoyed absolute immunity).
The Defendant has not yet been served, see generally Docket, but his “failure to plead the affirmative defense of judicial immunity” does not “preclude[ ] dismissal” because “dismissal is available, as in this case, when the defense is an obvious bar given the allegations.” Sibley v. Lando, 437 F.3d 1067, 1070 n.2 (11th Cir. 2005).
***
After careful review, the Court hereby ORDERS and ADJUDGES as follows:
1. The Motion for Leave to Proceed in forma pauperis [ECF No. 8] is DENIED.
2. The Complaint [ECF No. 6-1] is DISMISSED with prejudice.
3. The Clerk of Court is directed to CLOSE this case.
4. All pending deadlines and hearings are TERMINATED, and any pending motions are DENIED AS MOOT.
DONE AND ORDERED.