Pena v. U.S. Coast Guard Seventh Dist.
| Decision Date | 02 October 2019 |
| Docket Number | CASE NO. 18-23188-CIV-SCOLA/MCALILEY |
| Parties | HUGO PENA, et al., Plaintiffs, v. UNITED STATES COAST GUARD SEVENTH DISTRICT, et al., Defendants. |
| Court | U.S. District Court — Southern District of Florida |
Plaintiff Hugo Pena was criminally convicted in this Court in 2010, after a trial by jury. See United States v. Pena, et al., Case No. 10-CR-60158-DIMITROULEAS. (hereafter CR-ECF No. ___.) In this civil lawsuit, Pena claims his conviction was unlawfully procured by Defendants' fraudulent conduct, and he sues for a variety of remedies, none of which this Court is empowered to grant. I therefore recommend that the Court dismiss the lawsuit with prejudice, for the reasons set out below.
Defendants have filed the following motions: G&G Marine, Inc., G&G Shipping, Subsidiary I, LLC, and Coastal Shipping Holding, Inc. (the "G&G Defendants'") have filed a Motion to Dismiss Amended Complaint, (ECF No. 66), and a Motion to Strike Petition of Declaratory Judgment. (ECF No. 70). The United States Coast Guard has also filed a Motion to Dismiss. (ECF No. 75) (together, "the Motions"). The Motions have been fully-briefed, (ECF Nos. 67, 68, 72, 76, and 78), and the Honorable Robert N. Scola, Jr. referred them to me for a report and recommendation. (ECF No. 48). I recommend that the Court grant the Motions.
Pena's criminal charges arose from his work, in 2010, as a classification surveyor and employee of HP Maritime Consultants, Inc., ("HP Maritime") also a Plaintiff in this lawsuit. At the relevant time, HP Maritime subcontracted for a classification society which was tasked with conducting a survey and inspection of the M/V Island Express, a 155-foot cargo ship that was registered in the Republic of Panama, and home ported in this District. (CR-ECF No. 31, ¶¶ 1, 4, 5).
The M/V Island Express was subject to a treaty, MARPOL,1 which Congress implemented through the Act to Prevent Pollution from Ships ("APPS"), 33 U.S.C. §§ 1901 et. seq. MARPOL regulates the discharge of oil from vessels at sea, and APPS makes it a crime for any person to knowingly violate MARPOL, APPS, or regulations promulgated under APPS. (Id. at ¶6). MARPOL and APPS mandated that the M/V Island Express, inter alia: (1) have a functioning Oil Water Separator, and to use it to ensure that its overboard discharges of oil-contaminated water were less than 15 parts per million ("ppm"); (2) maintain an Oil Record Book and accurately record in it all overboard discharges of oil residue; (3) have its flag state (here, Panama) issue an International OilPollution Prevention ("IOPP") Certificate that the ship complies with MARPOL, which obligation the flag state could delegate to a recognized classification society. (Id. at ¶¶ 6-9).
Panama engaged HP Maritime, by subcontract, to inspect the M/V Island Express, in April, 2010. Pena conducted that inspection and signed and issued an IOPP Certificate, that verified the vessel's compliance with MARPOL. (Id. Count 1, ¶ 11, Counts 27, 28). In fact, at the time of that inspection, and for several months prior, the Oil Water Separator on the M/V Island Express was inoperable, and the ship's crew, at the direction of its officers, directly pumped oil-contaminated waters overboard, in violation of MARPOL and APPS. (Id. at ¶¶ 4-6).
The United States Coast Guard discovered this during its inspection of the ship the following month. (CR-ECF 1, at 5-6, Criminal Complaint). A Coast Guard inspector questioned Pena at the time, and Pena admitted that he did not survey the Oil Water Separator before he issued the IOPP Certificate, because the vessel's chief engineer had told him it was inoperable. (Id. at 6-7).
A grand jury charged Pena and HP Maritime, by Superseding Indictment, in June of 2010, with: (1) conspiracy to commit an offense against the United States (by knowingly failing to maintain an accurate Oil Record Book on board the M/V Island Express I), in violation of 18 U.S.C. 371 (Count 1); (2) violation of MARPOL (by failing to conduct a complete inspection of the vessel), in violation of 33 U.S.C. 1908(a) (Count 27); and (3) making a false official statement (that the ship complied with MARPOL), in violation of 18 U.S.C. 1001(a)(2) (Count 28). (Cr. ECF No. 31). The Superseding Indictment alsobrought charges against the ship's captain and chief engineer. (Id.). Count 1 was dismissed, and a jury found Pena guilty of Counts 27 and 28. (Cr. ECF Nos. 117). The Court sentenced Pena to concurrent five-year sentences of probation. (Cr. ECF No. 142).2 Pena has completed his sentence. (Id. at 187).
The Amended Complaint was filed on behalf of Pena and HP Maritime. Pena represents himself in this action, and no attorney has entered an appearance on behalf of HP Maritime. Early in this lawsuit the Court advised Plaintiffs that HP Maritime could only proceed in this lawsuit if represented by counsel, and that Pena, who is not a lawyer, cannot act as the company's lawyer. (ECF No. 14).3 HP Maritime's unrepresented status is an independent and necessary basis for dismissal of its claims. For simplicity, I refer here to a singular "Plaintiff."
The Amended Complaint is confusing and difficult to follow. The Court can, nonetheless, understand what is necessary to resolve the Motions and to assess the validity of the lawsuit. In particular, Plaintiff brings "an action for damages pursuant to 42 U.S.C. §§ 1983 and 1985" against the United States Coast Guard ("Coast Guard") and the G&G Defendants. (ECF No. 62 at ¶ 11). Plaintiff alleges that the G&G Defendants were theowners, vessel operation company, and vessel agency responsible for the M/V Island Express I. (ECF No. 62 at ¶¶ 8-10). Plaintiff generally alleges that the Coast Guard and the G&G Defendants conspired, and together engaged in fraud, and thus brought about Plaintiff's unlawful criminal conviction. (See, e.g. ECF No. 62 at ¶¶ 24-29). Plaintiff asks this Court to (1) vacate his criminal conviction; (2) award him compensatory and punitive damages; and (3) enjoin the Coast Guard from "further unconstitutional prosecutions." (ECF No. 62 at ¶ 4).
Plaintiff also filed a Petition for Declaratory Judgment. (ECF No. 69). Therein, Plaintiff asks the Court to "pronounce Defendant 2 (the G&G Defendants) responsible for this fraud upon the court and obtain the Plaintiff relief or either in the form of damages or injunctions." (Id. at 5).
Rule 8(a) of the Federal Rules of Civil Procedure requires "a short and plain statement of the claim showing that the pleader is entitled to relief" and "a demand for the relief sought, which may include relief in the alternative or different types of relief." FED. R. CIV. P. 8(a)(2) and (3). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation marks and citation omitted). "A claim has facial plausibility when the plaintiff pleads factual content thatallows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.
On a motion to dismiss the complaint for failure to state a claim upon which relief can be granted, the court takes the factual allegations in the complaint as true and construes them in the light most favorable to the plaintiff. Edwards v. Prime Inc., 602 F.3d 1276, 1291 (11th Cir. 2010). Where the relief sought by the plaintiff is unavailable as a matter of law, dismissal is appropriate. See Schweiker v. Chilicky, 487 U.S. 412, 429 (1988).
Plaintiff purports to sue Defendants under 42 U.S.C. §§ 1983 and 1985(3).4 (ECF No. 62 at ¶ 11). Section 1983 provides a cause of action in favor of all persons who are subjected to "the deprivation of any rights, privileges, or immunities secured by the Constitution and laws" by those acting under color of state law. 42 U.S.C. § 1983. Section 1985(3) provides a private right of action where two or more persons conspire "for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws. . . . " 42 U.S.C. § 1985(3).
Liability under both §§ 1983 and 1985(3) is confined to state action taken in violation of federal or constitutional rights. Dye v. U.S., 516 F. Supp. 2d 61, 71 (D.D.C.2007) . See also Meyer v. Reno, 911 F. Supp. 11, 14 n.1 (D.D.C. 1996) ("It is well established that 42 U.S.C. § 1983, which provides a cause of action for violations of constitutional rights accomplished under color of state law, does not provide a basis for suit for actions taken under color of federal law." (citing Stonecipher v. Bray, 653 F.2d 398 (9th Cir. 1981), cert. denied, 454 U.S. 1145 (1982); and Gillespie v. Civiletti, 629 F.2d 637 (9th Cir. 1980)); Baker v. McDonald's Corp., 686 F. Supp. 1474, 1480 (S.D. Fla. 1987), aff'd, 865 F.2d 1272 (11th Cir. 1988) ().
Plaintiff's claims arise from his federal prosecution and conviction. The Amended Complaint contains no allegations of any conduct taken under color of state law, nor any basis to infer such conduct.5 Plaintiff thus fails to state a claim pursuant to 42 U.S.C. §§ 1983 or 1985(3).
The Amended Complaint must also be dismissed because the following claims for...
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