Cox v. United States

Decision Date22 January 2019
Docket NumberCase No. 8:16-CV-01222-CJC (KES)
CourtU.S. District Court — Central District of California
PartiesLEWELLYN CHARLES COX, IV, Plaintiff, v. UNITED STATES OF AMERICA, et al., Defendants.
AMENDED REPORT AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE

This Amended Report and Recommendation ("R&R") is submitted to the Honorable Cormac J. Carney, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.

CONTENTS

INTRODUCTION ...................................................................................................... 3

FACTUAL BACKGROUND ..................................................................................... 4

SUMMARY OF THE ALLEGATIONS AND MOTIONS TO DISMISS ............. 10

A. Allegations in Plaintiff's TAC ..................................................................... 10
1. Count One: Defendant Casler's Falsification of Evidence Regarding Jamala Pratt's License Plate and Ms. Bacque's Identification .......................... 10
2. Count Two: Defendants Schwark and Casler's Coercive Photo Lineup Procedure and Interview of Ms. Bacque ........................................................... 11
3. Count Three: Defendant Mikkelson's Fabrication of Evidence and Bribery of Ms. Bacque ...................................................................................... 13
4. Count Four: FTCA Claim Against the United States for Failing to Provide Adequate Payment for Investigators .................................................................. 14
B. Motions to Dismiss Briefing ........................................................................ 15

LEGAL STANDARDS ............................................................................................ 17

A. Elements of Plaintiff's Civil Rights Claims ................................................ 17
B. Motions to Dismiss ...................................................................................... 18

DISCUSSION ........................................................................................................... 19

A. This Court Lacks Jurisdiction Over Plaintiff's Unexhausted FTCA Claim .... ...................................................................................................................... 19
B. Plaintiff Does Not Allege that Defendants' Evidence Fabrication Caused Deprivation of His Liberty or Property ................................................................. 20
1. Prosecution in the Criminal Case ............................................................. 23
2. Investigator Expenditure ........................................................................... 32
3. Emotional Distress .................................................................................... 35
C. Plaintiff Cannot Obtain Injunctive Relief as a Remedy for the Alleged Violations of His Civil Rights ............................................................................... 36
D. Plaintiff's Outstanding Requests .................................................................. 37
1. Plaintiff's Request to Amend His TAC .................................................... 37
2. Plaintiff's Discovery Requests .................................................................. 41

CONCLUSION ......................................................................................................... 43

RECOMMENDATION ............................................................................................ 43

I.

INTRODUCTION.

On April 25, 2018, pro se Plaintiff Lewellyn Charles Cox, IV ("Plaintiff") constructively filed his Third Amended Complaint ("TAC"). (Dkt. 107.) On May 15, 2018, Defendant Curt Casler moved to dismiss Plaintiff's TAC. (Dkt. 109.) Plaintiff filed an opposition docketed on June 14, 2018. (Dkt. 117.) Defendant Casler replied on June 22, 2018. (Dkt. 121.) On August 6, 2018, Defendants United States of America, James Mikkelson, and Wesley Schwark (the "Federal Defendants") moved to dismiss Plaintiff's TAC. (Dkt. 133.) Plaintiff filed three responses.1 (Dkts. 141, 142, 143.) The Federal Defendants replied on September 18, 2018. (Dkt. 144.)

The Amended R&R addresses Plaintiff's objections to the initial R&R that was issued on December 17, 2018. (Dkts. 150 [R&R], 151 [Objections].) The discussion has been amended to address Plaintiff's new, unpled contention that he suffered an injury (i.e., deprivation of liberty and property) caused by a sentencing error (Dkt. 151 at 1-10, 13-16, 21-22), and that the Court inaccurately stated Plaintiff's arguments and several facts. (Id. at 10-12, 17-19.) The Court's recommendation remains unchanged, however.

The Court finds the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; Local Rule 7-15. For the reasons below, Defendants' motions to dismiss are GRANTED without further leave to amend.

II.FACTUAL BACKGROUND.

Plaintiff's TAC asserts claims against Orange County Sheriff's Detective Curt Casler, the United States of America, and Secret Service Agents Wesley Schwark and James Mikkelson (together, "Defendants") arising from conduct related to an underlying criminal case, United States of America v. Lewellyn Cox, et al., 09-cr-248-DOC (C.D. Cal. 2009) (the "Criminal Case"). (See Dkt. 107 at 4-9.) In that case, a grand jury indicted Plaintiff on bank fraud and identity theft charges in February 2011. (Criminal Case, Dkt. 30.) In December 2011, Plaintiff pled guilty through a "straight up" plea without a plea agreement to seventeen counts in the Second Superseding Indictment. (Criminal Case, Dkts. 403, 521, 674.) One of those seventeen counts was later dismissed because Plaintiff was not charged in that count. (Criminal Case, Dkts. 1476 [6/30/14 RT] at 22; 1647 at 18-19.)

The District Judge held several pre-sentencing evidentiary hearings to determine the loss attributable to Plaintiff. (Criminal Case, Dkts. 1313, 1345, 1346, 1347 [hearing minutes].) On July 1, 2014, the District Judge sentenced Plaintiff to 25 years in custody and ordered him to pay $8 million in restitution. (Criminal Case, Dkt. 1351 [judgment].) Plaintiff subsequently appealed. See United States v. Lewellyn Cox, IV, Case No. 14-50325 (9th Cir. 2014); United States v. Lewellyn Cox, IV, Case No. 15-50453 (9th Cir. 2015); United States v. Lewellyn Cox, IV, Case No. 16-50415 (9th Cir. 2016).2 On December 26, 2018, the Ninth Circuitaffirmed Plaintiff's conviction, holding the District Judge did not err or abuse his discretion in: (1) delaying a Faretta hearing; (2) denying a sentencing continuance to allow Plaintiff's second investigator, Tracy Spada, to testify or introduce her report "because this evidence was insignificant"; (3) denying Plaintiff's request to withdraw his plea; (4) calculating the loss amount pursuant to the sentencing guidelines; (5) dismissing Plaintiff's pro se post-judgment motions; or (6) denying Plaintiff's motion to disqualify the District Judge. Id., Dkt. 137-1; United States v. Cox, 2018 WL 6787546 (9th Cir. Dec. 26, 2018).

Plaintiff's current civil claims relate to the events that first led investigators to suspect Plaintiff's involvement in the bank fraud conspiracy underlying his Criminal Case. According to Defendant Schwark's testimony during a pre-sentencing evidentiary hearing in the Criminal Case, Plaintiff first became linked to the conspiracy in October 2005 when a man named Adam Jones contacted investigators after his girlfriend was arrested for cashing an unauthorized check. (Criminal Case, Dkt. 1475 [6/27/14 RT] at 75, 131.) Per Defendant Schwark, Mr. Jones reported that he had been asked to recruit people (including his girlfriend) to cash unauthorized checks; Mr. Jones reported that in May 2005, he met with an African-American male named "Homicide" and an unknown African-American male at South Coast Plaza Mall to exchange checks. (Id. at 75-76, 78, 131.) Defendant Casler then contacted mall security and asked if they had logged any suspicious activity on that date. (Id. at 75.) Mall security reported that on that date, they saw people meeting and recorded a license plate belonging to a silver Mercedes. (Id.) By running the license plate through the Secret Service database, Defendant Schwark traced the license plate to Jamala Pratt (Plaintiff's ex-wife) anddiscovered the association between Ms. Pratt and Plaintiff. (Id. at 76-77.) Defendants Schwark and Casler then showed Mr. Jones a photograph of Plaintiff and Mr. Jones stated that Plaintiff appeared to be the man in the car with "Homicide." (Id. at 78-79.)

Plaintiff's current civil claims also relate to events surrounding an individual formerly known as Jessica Bacque.3 Ms. Bacque was convicted of cashing unauthorized checks. (Id. at 83.) A deputy initially interviewed Ms. Bacque upon her arrest, and on June 15, 2005, Defendant Casler interviewed Ms. Bacque while she was in custody. (Dkt. 142 at 35-36 [Casler police report].) During her interview with Defendant Casler, Ms. Bacque reported that on May 16, 2005, she cashed an unauthorized check and gave the money to two men in a new white Jaguar with paper plates—one was an African-American male named "Homicide" and the other was an unknown Asian male. (Id.) She also reported that on May 23, 2005—the day of her arrest—she retrieved an unauthorized check from four men in a blue/green Jaguar. (Id.) She reported that the driver was "Homicide"—the same African-American male from the May 16, 2005 incident—but she did not know the three passengers. (Id.)

According to Defendant Schwark's testimony during the pre-sentencing evidentiary hearing in the Criminal Case, following her release from custody, Ms. Bacque met with law enforcement for an interview at Defendant Casler's recommendation in November 2005. (Criminal Case, Dkt. 1475 [6/27/14 RT] at 82.) Before the interview, Defendants Schwark and Casler had identified Plaintiff as a...

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