Lovelien v. United States

• Decision Date: 18 November 2019
• Docket Number: Case No. 1:19-cv-00906 (TNM)
• Citation: 422 F.Supp.3d 341
• Parties: Rick LOVELIEN, et al., Plaintiffs, v. UNITED STATES of America, et al., Defendants.
• Court: U.S. District Court — District of Columbia

422 F.Supp.3d 341

Rick LOVELIEN, et al., Plaintiffs,

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

Case No. 1:19-cv-00906 (TNM)

United States District Court, District of Columbia.

Signed November 18, 2019

Larry E. Klayman, Klayman Law Group, P.A., Washington, DC, for Plaintiffs.

Siegmund F. Fuchs, U.S. Department of Justice, Christopher J. Keeven, Debra Lynn Roth, Shaw, Bransford, & Roth, PC, Washington, DC, for defendants.

MEMORANDUM OPINION

TREVOR N. McFADDEN, U.S.D.J.

In April 2014, Plaintiffs Rick Lovelien and Steven Stewart took part in an armed confrontation with federal agents at the Bundy Ranch in Bunkerville, Nevada. Federal authorities later prosecuted them, but a jury acquitted them. Lovelien and Stewart now sue for damages against various federal officials and entities, based on conduct that took place at the standoff and in its aftermath. Before the Court are two Motions to Dismiss, one filed by Defendant Dan Love and the other filed by all other Defendants. For the following reasons, both Motions to Dismiss will be granted, and the Complaint will be dismissed.

I.

State and federal officers allegedly "invaded" the Bundy Ranch in April 2014 "[u]nder the guise of collecting grazing fees." Compl. ¶ 21, ECF No. 1. "After hearing about and seeing the use of excessive force and assaults on the Bundys," Lovelien and Stewart traveled to the Bundy Ranch to protest the officers' actions. Id. ¶¶ 27–30. They both carried unloaded rifles during the standoff. Id. ¶¶ 28–30. According to the Complaint, neither man harmed, assaulted, or threatened any of the officers. Id. ¶¶ 28, 30, 32. Both men were later indicted on federal charges based on their involvement in the standoff, but a jury ultimately acquitted them. Id. ¶¶ 33–34, 82.

Lovelien and Stewart now sue the United States, the FBI, the Bureau of Land Management (BLM), and several federal officials in their individual capacities—former Attorneys General Jeff Sessions, Eric Holder, and Loretta Lynch; former FBI Director James Comey; former BLM Director Neil Kornze; and Dan Love, the BLM agent in charge at the standoff. Lovelien and Stewart also sue Comey, Kornze, and Love in their official capacities. Under Federal Rule of Civil Procedure 25(d), the official-capacity claims against Comey, Kornze, and Love proceed against FBI Director Christopher Wray, BLM Deputy Director William Pendley, and BLM agent Brian Richards, respectively. See Defs.' Mot. to Dismiss (Defs.' Mem.) at 1 n.1, ECF No. 10.¹ Lovelien and Stewart bring four claims against all Defendants except the United States: (1) unconstitutional retaliation under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics , 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) (Count One); (2) unconstitutional use of force under 42 U.S.C. § 1983 (Count Two); (3) unconstitutional retaliation under 42 U.S.C. § 1983 (Count Three); and (4) unconstitutional malicious prosecution under 42 U.S.C. § 1983 (Count Four). See Compl. at 17–25.² Plaintiffs bring two claims under the Federal Tort Claims Act (FTCA) against all Defendants (Counts Six and Seven). See id. at 27–28.

II.

Defendants move to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). These motions are ripe for disposition.

To survive a Rule 12(b)(1) motion, a plaintiff must establish that the Court has jurisdiction by a preponderance of the evidence. See Lujan v. Defs. of Wildlife , 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). When ruling on such a motion, the Court must "assume the truth of all material factual allegations in the complaint and construe the complaint liberally, granting plaintiff the benefit of all inferences that can be derived from the facts alleged." Am. Nat'l Ins. Co. v. FDIC , 642 F.3d 1137, 1139 (D.C. Cir. 2011) (cleaned up). If the Court determines that it lacks jurisdiction as to any claim, it must dismiss that claim. Fed. R. Civ. P. 12(b)(1), 12(h)(3).

To survive a Rule 12(b)(6) motion, a complaint must contain sufficient factual allegations that, if true, "state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Plausibility requires that a complaint raise "more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Pleading facts that are "merely consistent with" a defendant's liability "stops short of the line between possibility and plausibility." Twombly , 550 U.S. at 557, 127 S.Ct. 1955.

The Court must "treat the complaint's factual allegations as true and must grant the plaintiffs the benefit of all inferences that can be derived from the facts alleged." L. Xia v. Tillerson , 865 F.3d 643, 649 (D.C. Cir. 2017) (cleaned up). The Court must consider only "the facts alleged in the complaint, any documents either attached to or incorporated in the complaint and matters of which [the court] may take judicial notice." Hurd v. District of Columbia , 864 F.3d 671, 678 (D.C. Cir. 2017) (alteration in original; internal quotation omitted). Courts need not accept the truth of legal conclusions or "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937.

III.

The Court is now quite familiar with the standoff at the Bundy Ranch. This Court recently dismissed a case raising from the same standoff against many of the same defendants brought by the same counsel. See Bundy v. Sessions , 387 F. Supp. 3d 121 (D.D.C. 2019), appeal docketed , No. 19-5183 (D.C. Cir. June 20, 2019). The plaintiff in that case was Ryan Bundy. Like Lovelien and Stewart, Bundy alleged that state and federal officers "invaded" his ranch, that he participated in the ensuing standoff while armed, and that he did not harm or threaten any of the officers. Id. at 124. Bundy was indicted on federal charges for his involvement in the standoff, but a district judge ultimately declared a mistrial based on prosecutorial misconduct. Id. Bundy sued Sessions, Holder, Lynch, Comey, and Kornze under Bivens and 42 U.S.C. § 1983 for their alleged roles in the standoff and the ensuing prosecution. Id.

Bundy's claims failed "for many reasons." Id. at 125. All claims based on conduct during the standoff were time-barred, and the complaint did not plausibly allege that the federal officials had been acting under color of state law. Id. at 125–27. Absolute immunity barred Bundy's prosecution-related claims against the former Attorneys General, and the complaint did not allege that Comey or Kornze personally participated in the decision to prosecute Bundy. Id. at 127–30.

The instant case has done little to improve on Bundy. Several of Plaintiffs' claims mirror those made in Bundy , and Defendants make arguments for dismissal that are identical to those this Court accepted before. See Defs.' Mem. at 23–27; Love Mot. to Dismiss ("Love Mem.") at 12–14, 20–25, ECF No. 17-1. As to these claims, Plaintiffs have not meaningfully distinguished Bundy , nor have Plaintiffs convinced the Court that it wrongly dismissed any claims in Bundy. See Pls.' Opp'n to Mot. to Dismiss ("Pls.' Mem.") at 7–12, ECF No. 12; Pls.' Opp'n to Love's Mot. to Dismiss ("Pls.' Opp'n to Love") at 7–9, ECF No. 18.

A.

Counts One, Two, Three, and Four assert claims for damages under Bivens and 42 U.S.C. § 1983. Compl. at 17–25. One difference between this case and Bundy is that Plaintiffs here sue not only federal officials in their individual capacities, but also the FBI, the BLM, and three official-capacity defendants—Wray, Pendley, and Richards. Defendants argue that sovereign immunity bars Counts One through Four against this latter set of defendants. Defs.' Mem. at 27–28. Sovereign immunity bars suits for damages against federal agencies and officials in their official capacity, absent a specific waiver by the Government. See Clark v. Library of Congress , 750 F.2d 89, 102–04 (D.C. Cir. 1984). Plaintiffs fail to point to any specific waiver for the claims brought in Counts One through Four. The Court thus lacks subject matter jurisdiction over these claims as to the two agency-defendants and the three official-capacity defendants. See Dye v. United States , 516 F. Supp. 2d 61, 70–71 (D.D.C. 2007).

Indeed, Plaintiffs offer no response to Defendants' discussion of sovereign immunity. See Pls.' Mem. at 5–24; see also id. at 12 ("Plaintiffs hereby dismiss Counts One through Five as to Defendant United States of America only. These claims are being brought against the individual Defendants, not the United States of America."). The Court may therefore conclude that Plaintiffs have conceded Defendants' argument on this point. See Wannall v. Honeywell, Inc. , 775 F.3d 425, 428 (D.C. Cir. 2014).

For these reasons, the Court will dismiss Counts One, Two, Three, and Four against the FBI, the BLM, and the three official-capacity defendants.

B.

Turning to the claims against the individual-capacity defendants, the Court begins with a procedural issue specific to Defendant Dan Love. Love timely moved to dismiss on September 6, 2019. See 8/5/19 Minute Order. Plaintiffs' opposition to that motion was due on or before September 20. See LCvR 7(b). Plaintiffs filed their opposition one day late and never sought or received an extension. The Court may therefore treat Love's motion as conceded. See id. ; Wannall , 775 F.3d at 428. It may even be abuse of discretion for the Court not to do so. See Smith v. District of Columbia , 430 F.3d 450, 456–57 (D.C. Cir. 2005). The Court will thus dismiss all counts against Love. In any event, none of them states a claim for relief against Love. See infra Sections III.C, III.D, III.F, and III.G.

C.

Defendants contend that Count Two and a portion of Count One—based on conduct during the standoff—are untimely. Defs.' Mem. at 23; Love Mem. at 12–13. These are claims under Bivens and 42 U.S.C. § 1983, and since this...