Mauro v. Freeland

• Decision Date: 21 September 2009
• Docket Number: Civil Action No. H-09-0746
• Citation: 735 F.Supp.2d 607
• Parties: Andrew M. MAURO, Plaintiff, v. Michele FREELAND, et al., Defendants.
• Court: U.S. District Court — Southern District of Texas

735 F.Supp.2d 607

Andrew M. MAURO, Plaintiff,

v.Michele FREELAND, et al., Defendants.

Civil Action No. H-09-0746.

United States District Court,

S.D. Texas,

Houston Division.

Sept. 21, 2009.

Andrew M. Mauro, Beaumont, TX, pro se.

Erika M. Kane, Office of the Texas Atty. General, Austin, Charmaine Michele Aarons Holder, Office of the U.S. Attorney, Julie N. Searle, U.S. Attorneys Office, Houston, for Michele Freeland, Shelly J. Hicks, Tim Johnson, Unknown Federal Officials/Investigators for Southern District of Texas, Houston Division, Defendants.

MEMORANDUM OPINION AND ORDER

SIM LAKE, District Judge.

Anthony Mauro is a federal prisoner incarcerated at the Bureau of Prisons' FCI-Beaumont-Low facility in Beaumont, Texas. He is serving a 135-month sentence imposed after he pleaded guilty to conspiracy to possess drugs with the intent to distribute and conspiracy to launder money. He filed this action against the defendants asserting causes of action for violations of his constitutional rights and civil conspiracy arising out of the alleged refusal by the defendants to provide Mauro with chain-of-custody records and documentation of laboratory test results related to drugs seized from him on October 23, 1997.

Pending before the court are defendant Michele Freeland's Motion to Dismiss (Docket Entry No. 11), Defendants Tim Johnson and Shelley Hicks' Motion to Dismiss or in the Alternative Motion for Summary Judgment and Memorandum in Support (Docket Entry No. 15), Defendants Tim Johnson and Shelley Hicks' Supplemental Motion to Dismiss and Memorandum in Support (Docket Entry No. 20), and Mauro's Motion for Enlargement of Time (Docket Entry No. 25). In response to the defendants' motions to dismiss, Mauro has filed Plaintiff's Opposition to Defendant Michele Freeland's Motion to Dismiss (Docket Entry No. 14), and Plaintiff's Opposition to United States Defendants Tim Johnson and Shelley Hicks' Motion to Dismiss or in the Alternative Motion for Summary Judgment (Docket Entry No. 17). Freeland has also filed Defendant Michele Freeland's Reply to Plaintiff's Response to Freeland's Motion to Dismiss (Docket Entry No. 16).

For the reasons stated below, the court will deny Mauro's motion for enlargement of time and will grant the defendants' motions to dismiss. To the extent that Mauro asserts any claims against unidentified defendants, the court will dismiss those claims sua sponte.

I. Background

Mauro was arrested on October 23, 1997, when he attempted to sell 1,048 tablets purported to be 3,4 methylenedioxy-methamphetamine, commonly known as MDMA or ecstacy, to undercover Louisiana police officers.¹ Mauro asserts that the tablets were tested in a state laboratoryand that no controlled substances were detected.² He asserts that a state grand jury indicted him for delivery of a simulated controlled substance.³ Mauro alleges that he pleaded guilty to that count and received a three-month sentence in state prison, followed by five years of probation.⁴

Mauro contends that sometime later federal agents re-tested the tablets that were seized from him in October of 1997.⁵ This testing indicated that the tablets contained methamphetamine.⁶ In 2002, Mauro pleaded guilty in federal court pursuant to a plea agreement to one count of conspiracy to possess 3,4 methylenedioxy-methamphetamine; methamphetamine; lysergic acid diethylamide ("LSD"); and anabolic steroids, as well as one count of conspiracy to commit money laundering.⁷ In his plea agreement with the government Mauro waived his right to appeal his sentence or to collaterally contest his conviction or sentence in a post-conviction proceeding.⁸ United States District Judge Lee Rosenthal sentenced Mauro to 135 months in prison for the two counts to which he pleaded guilty.⁹ Mauro is currently serving this sentence at the federal Bureau of Prison's FCI-Beaumont-Low facility in Beaumont, Texas.¹⁰

Despite waiving his right to collaterally attack his sentence, Mauro filed a motion under 28 U.S.C. § 2255 attacking his conviction and sentence on May 2, 2005.¹¹ Judge Rosenthal denied Mauro's § 2255 motion and dismissed the corresponding civil action with prejudice on January 17, 2006. ¹²

On April 29, 2008, Mauro filed a motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2).¹³ Judge Rosenthal denied this motion on May 13, 2008.¹⁴

Mauro, proceeding pro se and in forma pauperis,¹⁵ initiated the instant civil action on March 12, 2009.¹⁶ Mauro has sued Michele Freeland, a legal assistant for the Office of General Counsel of the Texas Department of Public Safety, in her individual capacity,¹⁷ Shelley Hicks, a former Assistant United States Attorney for the Southern District of Texas who was part of the team that prosecuted Mauro, in her individual and official capacities,¹⁸ and Tim Johnson, the current Acting United StatesAttorney for the Southern District of Texas, in his official capacity.¹⁹ Mauro states that he plans to amend his complaint to add additional defendants in their individual and/or official capacities once discovery is conducted.²⁰

Mauro alleges that he has attempted to obtain chain-of-custody records and laboratory reports related to the re-testing of the tablets that were seized from him in October of 1997.²¹ He asserts that he was informed on October 1, 2008, and again on October 29, 2008, that the records do not exist. ²² Mauro alleges that defendant Freeland had personal access and control over the chain-of-custody and lab testing records.²³ Mauro alleges that defendant Hicks oversaw the federal investigation that led to Mauro's federal prosecution and that she "was responsible for the chain-of-custody and retesting of the 1,048 [t]ablets seized on Oct[ober] 23, 1997, from [Mauro] ...." ²⁴ Mauro contends that defendant Johnson "has custody and control of" the United States Attorney's office and its employees and is responsible for its day-to-day operations.²⁵

Mauro asserts five causes of action based on the denial of his requests for the chain-of-custody and laboratory testing records. First, Mauro alleges that the defendants have violated his First Amendment right of access to the courts. ²⁶ Second, he asserts that the defendants violated his Fifth Amendment right of access to the courts, thereby preventing him from "presenting his allegations concerning violations of his Fundamental Constitutional rights." ²⁷ Mauro next asserts that defendant Johnson violated his Fifth Amendment rights by failing to train and supervise his subordinates to ensure that they complied with the First Amendment and Due Process Clause.²⁸ Fourth, Mauro alleges that the defendants have violated his Eighth Amendment right to be free from cruel and unusual punishment.²⁹ Fifth, Mauro asserts that "the acts complained of herein[ ] were committed by defendant[ ]s and their agents, individually, and in concert with a knowing and reckless disregard of plaintiff's Constitutional and statutory rights and without reasonable belief that such acts were legal." ³⁰ The court construes this a claim of conspiracy under § 1983. See Cinel v. Connick, 15 F.3d 1338, 1343 (5th Cir.1994) (explaining that a person, including a non-state actor, can be held liable under 42 U.S.C. § 1983 if he or she is a willful participant in a conspiracy with a state actor to violate the plaintiff's constitutional rights and the plaintiff is actually deprived of a constitutional right).

Mauro seeks a declaratory judgment under 28 U.S.C. § 2201 that defendants have violated his First, Fifth, and Eight Amendment rights. ³¹ He also seeks an injunction compelling the defendants to turn over thechain-of-custody and laboratory testing records for the tablets seized from him in October of 1997.³² Mauro seeks a second injunction ordering defendant Johnson and his successors, agents, and employees to "train, supervise, and promulgate adequate procedures and policies requiring their subordinates to comply with the Fifth Amendment Due Process Clause ...." ³³ Mauro also seeks $4,000,000 in compensatory damages and $2,000,000 in punitive damages, as well as costs, expenses, and attorney's fees.³⁴

Mauro's complaint states that he brings this action under 42 U.S.C. § 1983.³⁵ Because 42 U.S.C. § 1983 only provides a cause of action against state actors for violations of federal Constitutional rights, it is an adequate vehicle only for the constitutional claims against defendant Freeland and the single conspiracy claim against all defendants. See Cinel, 15 F.3d at 1343. The court therefore assumes that Mauro's stand-alone constitutional claims against defendants Hicks and Johnson, who are or were federal employees, are asserted 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). See Evans v. Ball, 168 F.3d 856, 863 n. 10 (5th Cir.1999) ("A Bivens action is analogous to an action under § 1983-the only difference being that § 1983 applies to constitutional violations by state, rather than federal, officials."), overruled on other grounds, Castellano v. Fragozo, 352 F.3d 939, 948-49 & n. 36 (5th Cir.2003); Abate v. S. Pac. Transp. Co., 993 F.2d 107, 110 n. 14 (5th Cir.1993) ( Bivens ... "extends the protections afforded by § 1983 to parties injured by federal actors not liable under § 1983.").³⁶ The defendants have moved the court to dismiss Mauro's complaint for failure to state a claim for which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6).³⁷

II. Mauro's Motion for Enlargement of Time

Defendants Johnson and Hicks filed their Supplemental Motion to Dismiss and Memorandum in Support on July 30, 2009.³⁸ Under the local rules of this district, Mauro had twenty days-until August 19, 2009-to respond. See S.D. Tex.R. 7.4. On August 17, 2009, Mauro moved to strike the supplemental motion to dismiss, and in the alternative, requested additional time to respond to the supplemental motion to dismiss.³⁹ On August 25, 2009, the court denied Mauro's ...