Akers v. Rokusek et al
Filing
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ORDER DISMISSING CASE. Signed by Judge ARMSTRONG on 8/1/12. (lrc, COURT STAFF) (Filed on 8/3/2012)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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MONTGOMERY CARL AKERS,
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No. C 09-03547 SBA (PR)
ORDER OF DISMISSAL
Plaintiff,
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v.
JACQUELYN E. ROKUSEK, et al.,
Defendants.
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United States District Court
For the Northern District of California
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Plaintiff, a federal prisoner in custody at the U.S. Penitentiary Max in Florence, Colorado,
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has filed this pro se civil rights action pursuant to 42 U.S.C. § 1983 under Bivens v. Six Unknown
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Named Agents, 403 U.S. 388 (1971), for a "violation of his Fourth Amendment rights." (Compl. at
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3.) Thereafter, the Court issued an Order of Dismissal With Leave to Amend. (Docket No. 5.)
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Before the Court is Plaintiff's amended complaint. (Docket No. 8.) The Court now reviews
the amended complaint to determine whether it states cognizable claims for relief.
DISCUSSION
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In its Order of Dismissal With Leave to Amend, the Court summarized the action as follows:
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In his complaint, Plaintiff alleges that Assistant United States Attorney
Jacquelyn E. Rokusek as well as Melissa Doe and Raymond Lapietra from the
Federal Bureau of Investigation [FBI] have "violated his Fourth Amendment rights"
by taking property found in March, 2008 at his business, 19213 El Camino Real,
Sunnyvale, California. Plaintiff further states that Defendants claimed they had a
warrant to search his business and "confiscated negotiable instruments of an
undetermined value." (Compl. at 3.)
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Plaintiff, who is currently serving his federal sentence, moves the Court for
return of the seized property, "costs of litigation," and injunctive relief.
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(Nov. 16, 2009 Order at 1-2 (brackets added).)
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The Court determined that it was unclear from the allegations of the complaint whether
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Plaintiff was challenging a seizure that was related to his federal criminal conviction. The Court
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further stated, "If so, his request should be presented as a motion to return property pursuant to Rule
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41(g) of the Federal Rules of Criminal Procedure, and such a motion should be filed in his federal
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criminal case instead of a separate civil action." (Id. at 2.) The Court then dismissed Plaintiff's
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complaint with leave to amend in order to give Plaintiff the opportunity to explain whether he was
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challenging a seizure related to his federal criminal conviction. The Court also directed Plaintiff to
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supply "information about his federal criminal conviction, including the case number of his federal
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criminal case, the charges he has been convicted of, and the terms of his sentence." (Id.)
In his amended complaint, Plaintiff states that "the allegations of his complaint do not
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challenge a seizure related to his conviction in federal court, United State District Court, District of
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Kansas, Case No. 04-20089-KHU-1, USA v. Akers." (Am. Compl., Attach. at 1.) He adds that
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"[t]he acts and actions of the Defendants took place long after Plaintiff's conviction in Kansas and
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United States District Court
For the Northern District of California
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his complaint allegations are in no way related to Plaintiff's Kansas Federal Conviction." (Id. at 2.)
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In the "Relief" section of his amended complaint, Plaintiff requests the Court to "reopen civil matter
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No. 09-3457-SBA," which is the instant action. (The Court notes that the present action has not
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been closed. As mentioned above, it was dismissed with leave to amend.) In that same "Relief"
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section, Plaintiff directs the Court to "see original complaint." While in his original complaint he
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requests "return of [the] seized property, costs of litigation, including attorney['s] and filing fees
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under 42 U.S.C. § 1988 [and] injunctive relief," (Compl. at 3), Plaintiff does not specify whether he
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seeks both damages and injunctive relief. Therefore, the Court, out of an abundance of caution, will
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address all possible claims for damages and injunctive relief, which are both appropriate in a Bivens
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action. See Bivens, 403 U.S. at 404 (Harlan, J., concurring).
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I.
Claims for Damages
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A.
Claims Against Assistant United States Attorney Rokusek
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Defendant Rokusek, who is being sued in her capacity as an Assistant United States
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Attorney, is absolutely immune from a suit for damages. When prosecutors function as advocates in
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initiating a prosecution and presenting the government's case, they are absolutely immune from suit.
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Buckley v. Fitzsimmons, 509 U.S. 259, 272-73 (1993); Imbler v. Pachtman, 424 U.S. 409, 430-31
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(1976). Prosecutors, however, receive only qualified immunity for their "administrative duties and
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those investigatory functions that do not relate to an advocate's preparation for the initiation of a
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prosecution or for judicial proceedings." Buckley, 509 U.S. at 273-76 (no absolute immunity for
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prosecutor's fabrication of false evidence during preliminary investigation of crime); accord Burns v.
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Reed, 500 U.S. 478, 496 (1991) (no absolute immunity for prosecutor's legal advice to police
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regarding method of interrogation and existence of probable cause to arrest suspect).
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As mentioned above, Plaintiff alleged in his original complaint that district court issued a
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warrant to search his business in Sunnyvale. Plaintiff claims Defendants, armed with the warrant,
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confiscated "negotiable instruments of an undetermined value." (Compl. at 3.) The Court presumes
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that Defendant Rokusek acted by initiating the forfeiture action; however, such acts are within her
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prosecutorial function. See Buckley, 509 U.S. 259, 272-73 (initiation of action is prosecutorial
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function).
United States District Court
For the Northern District of California
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Accordingly, all claims brought for damages against Defendant Rokusek are DISMISSED
because she is absolutely immune from suit.
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B.
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Plaintiff also fails to state a claim for relief for damages against Defendants Doe and
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Lapietra, the FBI agents named in his complaint. "Bivens provides a cause of action against federal
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agents only in their individual capacities and requires a showing of personal involvement."
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Guerrero-Aguilar v. Ruano, No. 04-40808, 833, 2004 WL 2980174 at *1 (5th Cir. Dec. 17, 2004)
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(citing cases). In order to maintain a cause of action against Defendants Doe and Lapietra, Plaintiff
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must allege facts which, if proved, show that these Defendants were personally involved in retaining
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or disposing of the property seized. See Caldwell v. United States, No. 98-35232, 1999 WL 397746
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at * 1 (9th Cir. May 27, 1999) (affirming summary judgment in favor of individual defendants in
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Bivens action seeking return of currency where plaintiff failed to prove personal involvement in the
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retention or disposition of currency). Plaintiff alleges in his original complaint that the "negotiable
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instruments of an undetermined value" were seized by the "federal agents" of the FBI. (Compl. at
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3.) Nowhere does Plaintiff indicate Defendants Doe's and Lapietra's personal involvement in
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depriving him of his property or that they were involved in the decision to confiscate the property.
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Instead, such a decision was made by the FBI as an agency. Moreover, even if Plaintiff had named
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the FBI as a Defendant, that agency is not a proper party to a Bivens action. The purpose of Bivens
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is to deter federal officers -- not federal agencies. See F.D.I.C. v. Meyer, 510 U.S. 471, 484-85
Claims Against Federal Bureau of Investigation Agents Doe and Lapietra
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(1994) ("If we were to imply a damages action directly against federal agencies, thereby permitting
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claimants to bypass qualified immunity, there would be no reason for aggrieved parties to bring
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damages actions against individual officers . . . [and] the deterrent effects of the Bivens remedy
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would be lost."). Consequently, Plaintiff cannot sue the FBI under Bivens. See Murphy v.
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Gordwin, No. 06-16924, 2007 WL 4570579 at *1 (9th Cir. Dec. 28, 2007) (affirming dismissal of
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Bivens claim against FBI); Smith v. F.B.I., No. 01-1384, 2001 WL 1450814 at *1 (6th Cir. Nov. 6,
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2001) (same).
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United States District Court
For the Northern District of California
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Accordingly, all claims for damages against Defendants Doe and Lapietra are DISMISSED
for failure to state a claim for relief.
II.
Claim for Injunctive Relief (Return of Seized Property)
Plaintiff's amended complaint concerns a challenge to a seizure stemming from what appears
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to be the result of a civil forfeiture action subsequent to his conviction in federal court. Therefore,
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the Court finds that his challenge does not relate to the conditions of his confinement. A challenge
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to a subsequent civil forfeiture action does not lie in a civil rights action pursuant to Bivens; such an
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action typically is the avenue for prisoners who are seeking relief related to the conditions of
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confinement to the extent that these prisoners seek monetary and injunctive relief concerning staff
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interference and retaliation, orders concerning the possession of evidence relating to the incident
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report, changes in their classification points and custody classification, termination of close
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supervision, and transfer or release to a residential drug abuse program. Furthermore, a challenge to
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a subsequent civil forfeiture action does not lie in federal habeas (neither 28 U.S.C. §§ 2241 nor
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2255), as the petitioner will not be "in custody" for the action he wishes to challenge, i.e. the civil
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forfeiture. Instead, the proper vehicle to raise such a claim is a suit under 5 U.S.C. §§ 702, 704.
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These provisions permit a district court to review the constitutionality of a forfeiture if (1) the
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claimant is seeking only return of the property, no money damages, and (2) there is no adequate
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remedy in another forum. See United States v. Clagett, 3 F.3d 1355, 1356 (9th Cir. 1993); Marshall
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Leasing, Inc. v. United States, 893 F.2d 1096, 1099-1100 (9th Cir. 1990). At least one district court
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in this circuit has taken this approach. See Quiñones-Ruiz v. United States, 873 F. Supp. 359, 361
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(S.D. Cal. 1995).
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Here, if Plaintiff is seeking only return of the forfeited property, he would meet the first part
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of the test. However, without more information, there is a question as to whether there was an
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adequate remedy in another forum. See Clagett, 3 F.3d at 1356 n.1 ("[I]f notice was adequate the
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forfeiture proceeding provided an adequate legal remedy and Clagett will not be entitled to equitable
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relief."). Nevertheless, the Court need not make that determination at this juncture. Instead, the
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Court DISMISSES this Bivens action without prejudice to re-filing it as a suit under 5 U.S.C.
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§§ 702, 704.
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CONCLUSION
For the foregoing reasons, the instant complaint is hereby DISMISSED. If Plaintiff seeks to
United States District Court
For the Northern District of California
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challenge a civil forfeiture action, the dismissal is without prejudice to re-filing this suit under 5
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U.S.C. §§ 702, 704. The Court has rendered its final decision on this matter; therefore, this Order
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TERMINATES Plaintiff's case.
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The Clerk of the Court shall terminate all pending motions and close the file.
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IT IS SO ORDERED.
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DATED:
8/1/12
SAUNDRA BROWN ARMSTRONG
United States District Judge
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G:\PRO-SE\SBA\CR.09\Akers3547.dismiss(forfeiture).wpd
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UNITED STATES DISTRICT COURT
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FOR THE
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NORTHERN DISTRICT OF CALIFORNIA
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MONTGOMERY CARL AKERS,
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United States District Court
For the Northern District of California
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Case Number: CV09-03547 SBA
Plaintiff,
CERTIFICATE OF SERVICE
v.
JACQUELYN E. ROKUSEK et al,
Defendant.
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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on August 3, 2012, I SERVED a true and correct copy(ies) of the attached, by placing said
copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said
envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle
located in the Clerk's office.
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Montgomery Carl Akers 02866-081
U.S. Penitentiary Max
P.O. Box 8500
Florence, CO 81226
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Dated: August 3, 2012
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Richard W. Wieking, Clerk
By: Lisa Clark, Deputy Clerk
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G:\PRO-SE\SBA\CR.09\Akers3547.dismiss(forfeiture).wpd
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