Gunter v. Wheeler
| Decision Date | 23 August 2017 |
| Docket Number | A-17-CV-0136-RP |
| Parties | JORDAN GUNTER v. DARBY WHEELER, et al. |
| Court | U.S. District Court — Western District of Texas |
The undersigned Magistrate Judge submits this Report and Recommendation to the District Court pursuant to 28 U.S.C. § 636(b) and Rule 1(e) of Appendix C of the Local Court Rules of the United States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrates.
Before the Court is Plaintiff's complaint (Dkt. No. 1). Plaintiff is pro se and has been granted leave to proceed in this case in forma pauperis. For the reasons set forth below, the undersigned recommends that the Complaint be dismissed with prejudice.
Plaintiff is confined in the United States Penitentiary in Pine Knot, Kentucky. Named as defendants in this matter are Darby Wheeler, an employee of the Bureau of Alcohol, Tobacco, and Firearms ("ATF"), Duane Collins, an employee of the Transportation Security Administration ("TSA"), and federal agencies the ATF, and the TSA. Plaintiff alleges a cause of action arising in Pflugerville, Travis County, Texas.
Plaintiff alleges Defendant Wheeler violated Plaintiff's Fourth Amendment right to be free of unreasonable searches and seizures when he obtained a search warrant for Plaintiff's Pflugerville residence based on "evidence illegally seized by a local police department." (Dkt. No. 1 at 3). Plaintiff further alleges that Defendant Wheeler obtained a warrant to arrest Plaintiff based on information he knew to be false. (Dkt. No. 1 at 4).1 Plaintiff alleges that, during the execution of the search warrant on February 23, 2016, Defendants Collins and Wheeler exceeded the scope of the search warrant by seizing items not specified in the warrant. (Dkt. No. 1 at 4-5; Dkt. No. 1-1 at 3). Plaintiff further alleges that he was not shown the affidavit in support of the search warrant, and that the warrant did not specify the location and description of property to be searched or the person or property to be seized with particularity. (Dkt. No. 1 at 5-6). Plaintiff asserts that because he was not provided with the affidavit supporting the warrant or the attachments to the warrant, the warrant was "plainly invalid," citing Groh v. Ramirez, 540 U.S. 551 (2004) (Dkt. No. 1 at 6). Plaintiff alleges the ATF and the TSA are liable for the violation of his Fourth Amendment rights because Collins and Wheeler were acting under the color of law as agents of TSA and ATF. (Dkt. No. 1 at 9).
With regard to damages, Plaintiff alleges that, "[i]n detrimental reliance on incompetent counsel, in addition to the fruits of the illegally seized evidence being used against [him], [he] unknowingly and non-intelligently entered a guilty plea to the indictment, and was sentenced to imprisonment." (Dkt. No. 1 at 6).2 Plaintiff seeks monetary damages related to depression andfatigue, and asserts that he has been unjustly imprisoned. (Dkt. No. 1 at 7-9). Plaintiff seeks monetary damages in the amount of $300,000 for lost past and future income; $150,000 for his loss of tangible assets; $100,000 for pain and suffering; $50,000 in legal expenses, and $300,000 in punitive damages.
Plaintiff also seeks declaratory and injunctive relief, asking for: "Declaratory Judgment,"3 "Writ of Prohibition," "Relief from unlawful conversion," "Emergency/Temporary Injunctive Relief," and "Future equitable or extraordinary relief." (Dkt. No. 1 at 10).
The Court has permitted Plaintiff to proceed in forma pauperis. His Complaint is thus subject to sua sponte dismissal under 28 U.S.C. § 1915(e)(2). And, as a federal prisoner seeking redress from an officer or employee of a governmental entity, Plaintiff's Complaint is also subject to preliminary screening pursuant to 28 U.S.C. § 1915A, regardless of whether he proceeds in forma pauperis. Martin v. Scott, 156 F.3d 578, 579-80 (5th Cir. 1998). Pursuant to both § 1915(e)(2) and § 1915A, the Court must dismiss the complaint, or any portion of the complaint, if it is frivolous, malicious,or fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. Rogers v. Boatright, 709 F.3d 403, 407 (5th Cir. 2013); Martin, 156 F.3d at 579-80. A complaint is frivolous when it "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). A claim lacks an arguable basis in law when it is "based on an indisputably meritless legal theory," "or on a close but ultimately unavailing one." Id. at 327. When reviewing a pro se plaintiff's complaint, the court must construe plaintiff's allegations as liberally as possible. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Hernandez v. Velasquez, 522 F.3d 556, 561 (5th Cir. 2008).
Although Federal Rule of Civil Procedure 8 mandates only that a pleading contain "a short and plain statement of the claim showing that the pleader is entitled to relief," this standard demands more than unadorned accusations, "labels and conclusions," "a formulaic recitation of the elements of a cause of action," or "naked assertion[s]" devoid of "further factual enhancement." Bell Atlantic v. Twombly, 550 U.S. 544, 555-57 (2007). A complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." Id. at 570. This plausibility standard is not simply a "probability requirement," but imposes a standard higher than "a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The standard is properly guided by "[t]wo working principles." Id. First, although "a court must accept as true all of the allegations contained in a complaint," that "tenet is inapplicable to legal conclusions" and "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements . . ." Id. at 678. Second, "[d]etermining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on itsjudicial experience and common sense." Id. at 679. Accordingly, the Court must initially identify which portion of the pleadings that are no more than legal conclusions not entitled to the assumption of truth, then assume the veracity of well-pleaded factual allegations, and determine whether those allegations plausibly give rise to an entitlement to relief. If not, "the complaint has alleged-but it has not show[n]-that the pleader is entitled to relief.'" Id. (internal quotations omitted).
Plaintiff files his Complaint pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). In Bivens, the Supreme Court held that an individual injured by a federal agent's alleged violation of the individual's constitutional rights may bring an action for damages against the agent, providing deterrence against and relief for the deprivation of federally guaranteed rights caused by a person acting under color of federal law. A Bivens action mirrors those brought pursuant to 42 U.S.C. § 1983, which applies to a person acting under color of state law. Izen v. Catalina, 398 F.3d 363, 367 n.3 (5th Cir. 2005). To state a Bivens claim, Plaintiff must allege sufficient facts to establish that the Defendants are federal actors and that the Defendants, while acting under color of federal law, violated Plaintiff's rights under the Constitution or laws of the United States. Bivens, 403 U.S. at 395-96. Bivens provides a cause of action against federal agents only in their individual capacities and requires a showing of personal involvement. Correctional Serv. Corp. v. Malesko, 534 U.S. 61, 70-71 (2001); Cronn v. Buffington, 150 F.3d 538, 544 (5th Cir. 1998).
Plaintiff alleges the ATF and the TSA are liable for the violation of his Fourth Amendment rights because Defendants Collins and Wheeler were acting under the color of law as agents of TSA and ATF. (Dkt. No. 1 at 9). Because federal agencies are not entities which may be sued pursuantto Bivens, Defendant Bureau of Alcohol, Tobacco, and Firearms and Defendant Transportation Security Agency must be dismissed as defendants in this matter. Malesko, 534 U.S. at 71-72; FDIC v. Meyer, 510 U.S. 471, 484-86 (1994).
Additionally, claims for declaratory and injunctive relief which, if granted, would result in the Court mandating official government action, are not cognizable in a Bivens action. Malesko, 534 U.S. at 74; Solida v. McKelvey, 820 F.3d 1090, 1094-95 (9th Cir. 2016); Higazy v. Templeton, 505 F.3d 161, 169 (2d Cir. 2007). See also Solsona v. Warden, F.C.I., 821 F.2d 1129, 1131 (5th Cir. 1987) (). Accordingly, Plaintiff's claims for declaratory and injunctive relief are barred, and they are additionally barred by the doctrine of Heck v. Humphrey, as more thoroughly explained below.
In Heck v. Humphrey, 512 U.S. 477, 486 (1994), the Supreme Court held that a claim that effectively attacks the constitutionality of a conviction or imprisonment is not cognizable under § 1983 and does not accrue until that conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such a determination, or called into question by a federal court's issuance of a writ of habeas corpus. The doctrine established in Heck applies to Bivens actions. Stephenson v. Reno, 28 F.3d 26, 27 (5th Cir. 1994).
Accordingly,...
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