Sanders v. Schulze, Civil Action No. 3:15-CV-89-N (BH)

• Decision Date: 31 August 2015
• Docket Number: Civil Action No. 3:15-CV-89-N (BH)
• Parties: KEILON VIDAL SANDERS a/k/a Keilon Muhammad Bey, Plaintiff, v. TRAVIS SCHULZE, et al., Defendants.
• Court: U.S. District Court — Northern District of Texas

KEILON VIDAL SANDERS a/k/a Keilon Muhammad Bey, Plaintiff, v. TRAVIS SCHULZE, et al., Defendants.

Civil Action No. 3:15-CV-89-N (BH)

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

August 31, 2015

Referred to U.S. Magistrate Judge

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

Pursuant to Special Order No. 3-251, this pro se prisoner case has been automatically referred for pretrial management. Before the Court are Federal Defendants' Motion to Dismiss, filed February 17, 2015 (doc. 8), and Memorandum in Support of Motion to Remand, filed March 19, 2015 (doc. 11). Based on the relevant filings and applicable law, the motion to dismiss should be GRANTED; the remaining claims should be DISMISSED sua sponte; and the motion to remand should be DEEMED MOOT.

I. BACKGROUND

On October 20, 2014, Kelion Vidal Sanders a/k/a Keilon Muhammad Bey (Plaintiff) filed this action under 42 U.S.C. § 1983 in state court, alleging violations of the Fourth Amendment and conspiracy under 18 U.S.C. § 241 in connection with his arrest. (doc. 1-3 at 3. )¹ He also expressly lists state law causes of action for false arrest, intentional infliction of emotional distress, aggravated felony hit and run, trespass, assault, and battery. (Id.) He named as defendants United States Drug Enforcement Agency (DEA) Special Agents Travis Schulze (SA Schulze) and Marcus West (SA West) (collectively Defendants), John Doe DEA agents, and his two former court-appointed criminal defense attorneys, Brook Busbee (Busbee) and Michael Ray Harris (Harris). (Id. at 3-4.)

Plaintiff alleges that he was driving his car on August 14, 2013, when it was hit by a unidentified car that drove off without stopping. (doc. 1-3 at 4.) He later learned that the car was driven by SA West. (Id.) John Doe DEA agents then pulled up next to his car, claimed to have witnessed the collision, and offered to provide the license plate information for the unidentified car. (Id.) Plaintiff pulled into a parking lot to receive the vehicle information, and without identifying themselves, the John Doe DEA agents attempted to restrain him. (Id.) Plaintiff believed he was being robbed and feared for his life, so he drove away and called 911. (Id.) As he was driving away, several John Doe DEA agents allegedly fired their guns, and others followed him. (Id.) After Dallas Police Department officers arrived, Plaintiff pulled into a grocery store parking lot and was arrested. (Id.)²

Harris was appointed to represent Plaintiff in his federal criminal case. (Id. at 5.) Plaintiff contends that Harris coerced him into waiving certain rights, failed to disclose what documents meant, and did not review relevant evidence. (Id. at 4-7.) Busbee was subsequently appointed to represent Plaintiff. He claims that Busbee was "ineffective counsel since the day she was appointed." (Id. at 8.) Plaintiff also alleges that both defense attorneys conspired with Defendants and John Doe DEA agents to deprive him of his constitutional rights. (Id. at 5.)³

On January 12, 2015, Defendants removed this case to federal court pursuant to 28 U.S.C. § 1442(a)(1). On February 17, 2015, they moved to dismiss it. (doc. 8.) Plaintiff did not file a response, although he did file a motion to remand. (doc. 11.) Both motions are now ripe for recommendation.

II. MOTION TO DISMISS

Defendants move to dismiss this case pursuant to Rule 12(b)(6). (doc. 8 at 2.)

Rule 12(b)(6) allows motions to dismiss for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). Motions to dismiss under Rule 12(b)(6) are disfavored and rarely granted. Sosa v. Coleman, 646 F.2d 991, 993 (5th Cir. 1981). Under the 12(b)(6) standard, a court cannot look beyond the face of the pleadings. Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996); see also Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999), cert. denied, 530 U.S. 1229 (2000).⁴ It is well-established that "pro se complaints are held to less stringent standards than formal pleadings drafted by lawyers." Miller v. Stanmore, 636 F.2d 986, 988 (5th Cir. 1981) (citation omitted). Nonetheless, regardless of whether the plaintiff is proceeding pro se or is represented by counsel, pleadings must show specific, well-pleaded facts, not mere conclusory allegations to avoid dismissal. Guidry v. Bank of LaPlace, 954 F.2d 278, 281 (5th Cir. 1992). The court must accept those well-pleaded facts as true and view them in the light most favorable to the plaintiff. Baker, 75 F.3d at 196. "[A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of [the alleged] facts is improbable, and 'that a recovery is very remote and unlikely.' " Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007) (citation omitted). Nevertheless, a plaintiff must provide "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will notdo." Id. at 555; accord Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (emphasizing that "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions"). The alleged facts must "raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. In short, a complaint fails to state a claim upon which relief may be granted when it fails to plead "enough facts to state a claim to relief that is plausible on its face." Id. at 570.

A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of 'entitlement to relief.'"

Iqbal, 556 U.S. at 678 (citations omitted). When plaintiffs "have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed." Twombly, 550 U.S. at 570; accord Iqbal, 556 U.S. at 678.

A. 18 U.S.C. § 241

Defendants move to dismiss Plaintiff's claims under 18 U.S.C. § 241 on grounds that criminal statutes do not give rise to civil causes of action. (doc. 8 at 7.)

"Section 241 criminalizes conspiracy against the free exercise of a constitutional right." McHenry v. Stinnett Police Dept., No. 2:13-CV-0228-J, 2014 WL 4771855, at *7 (N.D. Tex. Aug. 8, 2014), adopted by, 2014 WL 4810025 (N.D. Tex. Sept. 25, 2014). "It is axiomatic, however, that federal criminal . . . statutes do not create a private right of action." Flander v. Dep't of Pub. Safety, No. 3:13-CV-4576-B, 2014 WL 238652, at *2 (N.D. Tex. Jan. 22, 2014). Moreover, courts have expressly held that "Section 241 . . . does not provide for civil remedies." McHenry, 2014 WL 4771855, at *7 (citing Fierro v. Robinson, 405 F. App'x 925, 926 (5th Cir. 2010) (per curiam); Mackey v. Astrue, 486 F. App'x 421, 422-23 (5th Cir. 2012) (per curiam)).

To the extent that he seeks to bring criminal charges against Defendants, "a private citizen like Plaintiff cannot initiate a federal criminal prosecution because that power is vested exclusively in the executive branch." Florance v. Buchmeyer, 500 F.Supp.2d 618, 635 (N.D. Tex. 2005) (citing United States v. Nixon, 418 U.S. 683, 693 (1974); Vella v. McCammon, No. Civ. H-85-5580, 1986 WL 15772, at *2 (S.D. Tex. Jul. 29, 1986) (holding that plaintiff's allegations that defendants committed extortion and criminal conspiracy under federal law did not give rise to a civil cause of action). Further, "[c]riminal statutes can neither be enforced by civil action nor by private parties." Hassell v. United States, 203 F.R.D. 241, 244 (N.D. Tex. 1999).

Because 18 U.S.C. § 241 does not provide a civil cause of action and may not be enforced by Plaintiff, he fails to state a claim against Defendants under this statute.

B. 42 U.S.C. § 1983/Bivens

Defendants also move to dismiss Plaintiff's claims against them under 42 U.S.C. § 1983 because it only applies to state actors. (doc. 8 at 1.)

Section 1983 "provides a federal cause of action for the deprivation, under color of law, of a citizen's 'rights, privileges, or immunities secured by the Constitution and laws' of the United States." Livadas v. Bradshaw, 512 U.S. 107, 132 (1994) (citation omitted). To state a claim under § 1983, he must allege facts that show (1) he has been deprived of a right secured by the Constitution and the laws of the United States and (2) the deprivation occurred under color of state law. See Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155 (1978); Cornish v. Corr. Servs. Corp., 402 F.3d 545, 549 (5th Cir. 2005).

Here, it is undisputed that Defendants are federal agents. (See docs. 1-3 at 2; 8 at 1.) Section 1983 does not apply when only federal action is at issue. See Williams v. Wood, 612 F.2d 982, 984n. 1 (5th Cir. 1980) (per curiam). When a plaintiff alleges unconstitutional action by a federal actor, his claims arise under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Bivens is "the counterpart to 42 U.S.C. § 1983," and it extends the protections afforded under § 1983 to parties injured by federal actors. Chapman v. United States, No. 4:06-CV-0426-Y, 2006 WL 3831227, at *1 n. 8 (N.D. Tex. Dec. 27, 2006); see also Boyd v. Driver, 579 F.3d 513, 515 n. 5 (5th Cir. 2009) (per curiam) (a Bivens action is otherwise coextensive with, and indistinguishable from a § 1983 claim); Izen v. Catalina, 398 F.3d 363, 367 n. 3 (5th Cir. 2005) (per curiam). "Because pro se complaints are liberally construed, the courts apply § 1983 or Bivens according to the actual nature of the claims, not the label or characterization of a pro se plaintiff." Montgomery v. Deitelbaum, No. 3:09-CV-2407-M, 2010 WL 582146, at *2 (N.D. Tex. Feb. 18, 2010) (internal citation omitted)....