Allen v. United States

• Decision Date: 09 August 2013
• Docket Number: CV. No. 03–01358–DAE–RJJ.
• Citation: 964 F.Supp.2d 1239
• Parties: Charles ALLEN, et al., Plaintiffs, v. UNITED STATES of America, et al., Defendants.
• Court: U.S. District Court — District of Nevada

964 F.Supp.2d 1239

Charles ALLEN, et al., Plaintiffs,

v.UNITED STATES of America, et al., Defendants.

CV. No. 03–01358–DAE–RJJ.

United States District Court,

D. Nevada.

Aug. 9, 2013.

Gustavo Gutierrez, Las Vegas, NV, pro se.

Brandon Kahre, Las Vegas, NV, pro se.

John W. Kahre, Las Vegas, NV, pro se.

Julio C. Vargas, Las Vegas, NV, pro se.

Julian R. Gregory, Lisa A. Rasmussen, Law Office of Lisa Rasmussen, Las Vegas, NV, for Plaintiffs.

Joseph A. Sergi, Robert D. Metcalfe, Charles M. Duffy, United States Department of Justice, Washington, DC, Roger W. Wenthe, U.S. Attorney's Office, Las Vegas, NV, for Defendants.

ORDER: 1) GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT; 2) GRANTING IN PART AND DENYING WITHOUT PREJUDICE IN PART DEFENDANTS' MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT; AND 3) DENYING AS MOOT DEFENDANTS' MOTION TO STRIKE

DAVID ALAN EZRA, Senior District Judge.

On July 24, 2013, the Court heard Defendants' Motion for Summary Judgment Regarding the Remaining Claim of Plaintiffs Lori Kahre and Lee Belcher (doc. # 350); Defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment (doc. # 369); and Defendants' Motion to Strike (doc. # 336). Lisa A. Rasmussen, Esq., appeared at the hearing on behalf of Plaintiff Robert Kahre; E. Brent Bryson appeared at the hearing on behalf of Plaintiffs Lori Kahre and Lee Belcher; and Charles M. Duffy, Esq., appeared at the hearing on behalf of Defendants. After reviewing the Motions and the supporting and opposing memoranda, the Court GRANTS the Motion for Summary Judgment, GRANTS IN PART and DENIES WITHOUT PREJUDICE IN PART the Motion to Dismiss or, in the Alternative, for Summary Judgment, and DENIES AS MOOT the Motion to Strike.

BACKGROUND

I. Factual Allegations

Plaintiffs describe themselves as a group of individuals boycotting the Federal Reserve System by using gold and silver coins manufactured by the United States mint as a medium of exchange, “thereby avoiding income taxes based on the exchange rate between gold and silver dollars and Federal Reserve Notes denominated as if they were dollars.” (“SAC,” Doc. # 104 at 3.) Plaintiffs filed suit against an Assistant United States Attorney in the Department of Justice (“DOJ”), Special Agents of the Internal Revenue Service (“IRS”), federal strike force/SWAT team members, and North Las Vegas Police Department (NLVPD) officers, alleging numerous constitutional violations. ( Id. ¶¶ 3–20.) Plaintiff's allegations arise primarily out of searches conducted by Defendants at three locations in Las Vegas, Nevada on May 29, 2003. Specifically, the Second Amended Complaint (“SAC”) alleges that Defendants retaliated against Plaintiffs for engaging in protected First Amendment activity ( id. ¶¶ 21–27); used excessive force, unreasonably detained Plaintiffs, and engaged in the unnecessary destruction of property and other misconduct in the execution of search warrants, in violation of the Fourth Amendment ( id. ¶¶ 27–39); violated Plaintiffs' Fifth and Fourteenth Amendment right to due process and freedom from compelled self-incrimination by using grand jury proceedings to elicit evidence for use in civil tax cases ( id. ¶¶ 62–65), utilizing warrant-less arrests and excessive force to coerce bystanders to submit to interrogations ( id. ¶¶ 66–71), and failing to serve search warrants to lawful tenants of property being searched ( id. at ¶¶ 72–74); and, finally, conspired to violate Plaintiffs' First and Fourth Amendment rights ( id. ¶¶ 75–77). After years of litigation and several dispositive motions, some plaintiffs have been dismissed from the proceedings, some have chosen not to proceed with this litigation, and many of the remaining plaintiffs' claims have been disposed of.

II. Procedural History

On October 30, 2003, Plaintiffs filed their first complaint seeking injunctive relief against the United States and damages against unknown individual federal employees and State of Nevada employees pursuant to Bivens v. Six Unknown Fed. Narcotics Agents (“Bivens”), 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) and 42 U.S.C. § 1983 as well as Nevada state law. (Doc. # 1.) On February 18, 2004, the Defendants filed Motions to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6) or, in the alternative, for Summary Judgment (“2004 Motions”). (Docs. 20–21.) On August 12, 2004, Plaintiffs filed their First Amended Complaint. (Doc. # 53.) On October 4, 2004, United States District Judge Philip M. Pro granted in part and denied in part Defendants' 2004 Motions. (“Pro Order,” Doc. # 56.)

In his Order, Judge Pro found that under Ninth Circuit precedent, “no Bivens action may lie for any alleged constitutional violation stemming from the assessment and collection efforts of IRS agents whenever there [are] meaningful and adequate protections available to the plaintiff” under the Tax Equity and Fiscal Responsibility Act of 1982 (“TEFRA”). (Pro Order at 9.) Accordingly, he dismissed all claims against IRS agents regarding alleged violations of First Amendment rights and claims regarding the seizure of Robert Kahre's gold, silver and other currency to satisfy unpaid federal tax obligations. ( Id. at 11, 23.) Judge Pro found that Robert Kahre was not present when the challenged search warrants were executed and thus did not have standing to challenge the defendants' failure to knock and announce and to present the warrant. ( Id. at 10–11.) Judge Pro also dismissed Robert Kahre's claims regarding the sufficiency of the search warrant, all claims arising from alleged violations of the Fifth Amendment protection against self-incrimination, and claims against Assistant United States Attorney (“AUSA”) Gregory Damm (“Damm”) relating to the drafting of the search warrant application and supporting affidavit. ( Id. at 24.) Judge Pro denied the Defendants qualified immunity with respect to certain plaintiffs' claims for unreasonable detention and excessive force relating to a search at 6270 Kimberly Avenue, and Plaintiff Lori Kahre's allegations that the defendants unlawfully entered her residence and detained her. ( Id. at 16, 19.) Judge Pro found that Defendant Damm was not entitled to absolute immunity with respect to allegations that he planned every aspect of an unlawful raid, and denied Defendant IRS Agent Jared Halper (“Halper”) qualified immunity on Robert Kahre's unlawful arrest claim. ( Id. at 20–21, 24.)

Plaintiffs filed their Second Amended Complaint on November 14, 2005. (SAC.) The SAC named the following defendants: AUSA Damm; IRS Agents Halper, MercedesManzur, and Dennis Crowther (“Crowther”); and officers with the NLVPD. In an Order dated May 22, 2006, the Court concluded that Plaintiffs' claims against the NLVPD officers were barred by the statute of limitations, and therefore dismissed the state defendants from the lawsuit. (Doc. # 142.)

On April 5, 2005, a federal grand jury returned an indictment against the majority of the Plaintiffs for charges relating to tax evasion. (Cr.2:05–CR–00121–DAE–RJJ, Doc. # 1.) On July 12, 2005, the Court stayed discovery proceedings pending resolution of the criminal cases against eleven of the Plaintiffs in the instant action. (Doc. # 99.) On November 14, 2005, Plaintiffs filed a Second Amended Complaint. (SAC.) On August 29, 2006, the Court refused to grant Plaintiffs leave to file a third amended complaint. (Doc. # 154.) On February 23, 2007, Plaintiff Robert Kahre commenced another lawsuit against many of the same Defendants in the instant case, alleging numerous Racketeer Influenced and Corrupt Organizations (RICO) violations. ¹ ( See Cv.2:07–CV–00231–DAE–RJJ.)

In 2009, three of the remaining Plaintiffs were adjudged guilty in their criminal cases. ( See Cr. 2:05–CR–00121–RCJ–RJJ.) Specifically, John Kahre pleaded guilty to five counts of willfully attempting to evade and defeat tax ( see Cr. 2:05–CR–00121–RCJ–RJJ, Docs. 605, 2614); Robert Kahre was found guilty of multiple counts of conspiracy to defraud, willfully failing to collect and pay over tax, attempting to interfere with the administration of the Internal Revenue law, attempting to evade and defeat tax, and wire fraud ( see Cr. 2:05–CR–00121–RCJ–RJJ, Docs. 1671, 2615); and Lori Kahre was found guilty of multiple counts of conspiracy to defraud, attempting to interfere with the administration of the Internal Revenue law, making a false statement to a bank and attempting to evade and defeat tax ( see Cr. 2:05–CR–00121–RCJ–RJJ, Docs. 1671, 2623).

The Court sua sponte lifted the stay in these proceedings on September 7, 2010. (Doc. # 225.) Only three Plaintiffs elected to proceed: Robert Kahre, Lori Kahre, and Lee Belcher (“Belcher”). (Doc. # 300 at 19.) On November 15, 2010, the Defendants filed a Motion to Dismiss or, in the Alternative, for Summary Judgment (“Defendants' 2010 Motion”). (Doc. # 254.) In its Order addressing Defendants' 2010 Motion, the Court identified five categories of claims that had not been dismissed in the Pro Order granting in part and denying in part Defendants' 2004 Motions:

1. Plaintiffs' claims for unreasonable detention arising from the execution of a search warrant at Kimberly Avenue;

2. Plaintiffs' claims of excessive force by federal agents during the execution of a search warrant at Kimberly Avenue;

3. Plaintiff Robert Kahre's claim for unlawful arrest against Defendant Halper;

4. Plaintiffs' claims against Defendant Damm for the alleged planning of unlawful raids;

5. Plaintiff Lori Kahre's claim of unreasonable search and seizure.

(Doc. # 300 at 20.)

The Court determined that Defendants were entitled to summary judgment with respect to the alleged misconduct at KimberlyAvenue, thus disposing of the unreasonable detention and excessive force claims stemming from the execution of the search warrant at that location. ( Id.) The Court noted that none of the remaining plaintiffs, including Robert Kahre, were present at Kimberly Avenue when the...