ROSARIO v. MCNAUGHT et al - Document 4

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OPINION. Signed by Judge Dickinson R. Debevoise on 4/1/2009. (ld, )

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N O T FOR PUBLICATION U N I T E D STATES DISTRICT COURT D I S T R I C T OF NEW JERSEY R E Y N A L D O ROSARIO, P l ai n ti f f, v. R O B E R T McNAUGHT, et al., D e fe n da n ts . : : : : : : : : : : : C i v i l No. 08-4703 (DRD) OPINION A P PE A RA N CE S : R e y n a l d o Rosario, Pro Se # 2 23 6 2- 0 50 F C I Fort Dix H o u s i n g Unit 5852, Room 307 P . O . Box 2000 F o r t Dix, NJ 08640 D E B E V O I S E , District Judge P l a i n t i f f , Reynaldo Rosario, currently incarcerated at the F e d e r a l Correctional Institution, Fort Dix, New Jersey, seeks to b r i n g this action in forma pauperis, without prepayment of fees, p u r s u a n t to 28 U.S.C. 1915. Based on Plaintiff's affidavit of i n d i g e n c e and institutional account statement, the Court will g r a n t his application to proceed in forma pauperis pursuant to 28 U . S . C . 1915(a) and order the Clerk of the Court to file the c o mp l ai n t.1 1 This case was previously administratively terminated b e c a u s e Plaintiff failed to either pay the $350.00 filing fee or a p p l y to proceed in forma pauperis. On October 10, 2008, A t this time, the Court must review the complaint pursuant to 2 8 U.S.C. 1915(e)(2) and 1915A to determine whether it should b e dismissed as frivolous or malicious, for failure to state a c l a i m upon which relief may be granted, or because it seeks m o n e t a r y relief from a defendant who is immune from such relief. For the following reasons, Plaintiff's complaint will be d i sm i ss e d. B A CK G RO U ND P l a i n t i f f seeks to sue under Bivens v. Six Unknown Named A g e n t s of Federal Bureau of Narcotics, 403 U.S. 388, 389 (1971), a l l e g i n g that the defendants violated his constitutional rights. Plaintiff names as defendants Robert McNaught, an officer of the C u s t o m s Department; Olayi Milian, Rene Beltran, and Michael M a l a g o n , private citizens who may have been informants in his c r i m i n a l case; and James McMahon, an Assistant United States A t t o r n e y for the District of New Jersey. (Complt., 20-24). P l a i n t i f f ' s complaint recounts the history of his criminal c a s e , dating back to 1993, up to his sentencing in 1999. 27-41). (Complt, Plaintiff notes that in April of 1993, an indictment w a s issued against him charging two counts: Conspiracy with Intent t o Distribute Cocaine, and Possession of Cocaine. Plaintiff was s e n t e n c e d for the possession of 50 kilograms of cocaine; however, Plaintiff's application to proceed in forma pauperis was received b y the Court, and this case has been reopened under separate O r de r . 2 h e believed that he was only being charged and convicted for 5 k i l o g r a m s of cocaine. (Complt., 37-38). Plaintiff asks that a proper investigation be made, "so the m i s s i n g , unmentioned 45 kilograms of cocaine whereabouts, could c o m e to light, which was never, and I repeat which was never p r e s e n t e d in any of my proceedings in Plaintiff's case or even b r o u g h t as evidence when Plaintiff's arrest was taking place." (Complt., 39). Plaintiff alleges that the day of his arrest, " t h e vehicle that transported both Plaintiff . . . and the 50 k i l o g r a m s of cocaine that I got charge[d] with, stood in p o s s e s s i o n of Defendants Olayi Milian, Robert McNaught and his S p e c i a l Agents. I never saw the 50 kilograms or never in p o s s e s s i o n , it was hidden so the Defendants could steal the 45 k i l o g r a m s that were missing." (Complt., 40). P l a i n t i f f asks for monetary and other relief. D I SC U SS I ON A. S t a n d a r d of Review I n determining the sufficiency of a complaint, the Court must b e mindful to construe the facts stated in the complaint liberally i n favor of the plaintiff. See Haines v. Kerner, 404 U.S. 519 The ( 1 9 7 2 ) ; United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992). C o u r t should "accept as true all of the [factual] allegations in t h e complaint and reasonable inferences that can be drawn t h e r e f r o m , and view them in the light most favorable to the 3 p l ai n ti f f. " Morse v. Lower Merion School Dist., 132 F.3d 902, 906 While a court will accept well-pled allegations ( 3 d Cir. 1997). a s true, it will not accept bald assertions, unsupported c o n c l u s i o n s , unwarranted inferences, or sweeping legal conclusions c a s t in the form of factual allegations. See id. " F e d e r a l Rule of Civil Procedure 8(a)(2) requires only `a s h o r t and plain statement of the claim showing that the pleader is e n t i t l e d to relief,' in order to `give the defendant fair notice o f what the ... claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, ----, 127 S. Ct. 1955, 1 9 6 4 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, w h i l e abrogating the decision in other respects). T h e Court of Appeals for the Third Circuit recently provided d e t a i l e d and highly instructive guidance as to what type of a l l e g a t i o n s qualify as sufficient to pass muster under the Rule 8 p l e a d i n g standard. See Phillips v. County of Allegheny, 515 F.3d The Court of Appeals explained, in (1957), 2 2 4 , 230-34 (3d Cir. 2008). r e l e v a n t part: [ T ] h e pleading standard can be summed up thus: "stating ... a claim requires a complaint with enough f a c t u a l matter (taken as true) to suggest" the required e l e m e n t . This "does not impose a probability r e q u i r e m e n t at the pleading stage[ ]" but . . . "calls f o r enough facts to raise a reasonable expectation that d i s c o v e r y will reveal evidence of" the necessary e l em e nt . P h i l l i p s , 515 F.3d at 234 (internal citations omitted). 4 B. B i v e n s Actions P l a i n t i f f ' s claims against the defendant federal actors, have t h e i r jurisdictional basis under Bivens v. Six Unknown Fed. N a r c o t i c s Agents, 403 U.S. 388 (1971). Under Bivens, the Supreme C o u r t held that one is entitled to recover monetary damages for i n j u r i e s suffered as a result of federal officials' violations of t h e Fourth Amendment. In doing so, the Supreme Court created a n e w tort as it applied to federal officers, and a federal c o u n t e r p a r t to the remedy created by 42 U.S.C. 1983. The S u p r e m e Court has also implied Bivens damages remedies directly u n d e r the Eighth Amendment, see Carlson v. Green, 446 U.S. 14 ( 1 9 8 0 ) , and the Fifth Amendment, see Davis v. Passman, 442 U.S. 2 2 8 (1979). In order to state a claim under Bivens, a claimant must show ( 1 ) a deprivation of a right secured by the Constitution and laws o f the United States; and (2) that the deprivation of the right w a s caused by an official acting under color of federal law. See M a h o n e y v. Nat'l Org. For Women, 681 F. Supp. 129, 132 (D. Conn. 1 9 8 7 ) ( c i t i n g Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 155-56 ( 1 97 8 )) . Bivens actions are analogous to suits under 42 U.S.C. 1983 a g a i n s t state officials who violate federal constitutional or s t a t u t o r y rights. The two bodies of law are not "precisely p a r a l l e l ; " however, there is a "general trend" to incorporate 5 1 9 8 3 law into Bivens suits. See Egervary v. Rooney, 80 F. Supp. 2 d 491 (E.D. Pa. 2000) (citing Chin v. Bowen, 833 F.2d 21, 24 (2d C i r . 1987)). C. D e f e n d a n t McMahon Will Be Dismissed from this Action. P l a i n t i f f names as a defendant in this action Assistant U n i t e d States Attorney ("AUSA") James McMahon, a federal p r os e cu t or . He alleges that AUSA McMahon issued the formal c o m p l a i n t against him, charging him for 5 kilograms of cocaine. H o w e v e r , the claims against this defendant must be dismissed, a s federal prosecutors are generally immune from suit under B i ve n s. See Brawer v. Horowitz, 535 F.2d 830 (3d Cir. 1991) ( f e d e r a l prosecutor against whom Bivens claim was brought was e n t i t l e d to absolute immunity where the allegations relate solely t o his initiating and presenting a criminal case); see also Yarris v . County of Delaware, 535 F.3d 129, 139 (3d Cir. 2006). Thus, t h i s defendant will be dismissed from this action, with prejudice. D. P l a i n t i f f ' s Claims Do Not Warrant Relief. P l a i n t i f f ' s claim that he was wrongly convicted and/or s e n t e n c e d based on the quantity of cocaine listed in the i n d i c t m e n t are not proper claims under Bivens. In a series of cases beginning with Preiser v. Rodriguez, 411 U . S . 475 (1973), the Supreme Court has analyzed the intersection o f 42 U.S.C. 1983 and the federal habeas corpus statute, 28 6 U . S . C . 2254. The Court held that "when a state prisoner is c h a l l e n g i n g the very fact or duration of his physical i m p r i s o n m e n t , and the relief he seeks is a determination that he i s entitled to immediate release or a speedier release from that i m p r i s o n m e n t , his sole federal remedy is a writ of habeas corpus." Id. at 500. I n Heck v. Humphrey, 512 U.S. 477 (1994), the Court addressed a corollary question to that presented in Preiser, whether a p r i s o n e r could challenge the constitutionality of his conviction i n a suit for damages only under 1983, a form of relief not a v a i l a b l e through a habeas corpus proceeding. Again, the Court r e j e c t e d 1983 as a vehicle to challenge the lawfulness of a c r i m i n a l judgment. [ I ] n order to recover damages for allegedly u n c o n s t i t u t i o n a l conviction or imprisonment, or for o t h e r harm caused by actions whose unlawfulness would r e n d e r a conviction or sentence invalid, a 1983 p l a i n t i f f must prove that the conviction or sentence h a s been reversed on direct appeal, expunged by e x e c u t i v e order, declared invalid by a state tribunal a u t h o r i z e d to make such determination, or called into q u e s t i o n by a federal court's issuance of a writ of h a b e a s corpus, 28 U.S.C. 2254. A claim for damages b e a r i n g that relationship to a conviction or sentence t h a t has not been so invalidated is not cognizable u n d e r 1983. 5 1 2 U.S. at 486-87 (footnote omitted). The Court further i n s t r u c t e d district courts, in determining whether a complaint s t a t e s a claim under 1983, to evaluate whether a favorable 7 o u t c o m e would necessarily imply the invalidity of a criminal j u dg m en t . T h u s , when a state prisoner seeks damages in a 1983 s u i t , the district court must consider whether a j u d g m e n t in favor of the plaintiff would necessarily i m p l y the invalidity of his conviction or sentence; if i t would, the complaint must be dismissed unless the p l a i n t i f f can demonstrate that the conviction or s e n t e n c e has already been invalidated. But if the d i s t r i c t court determines that the plaintiff's action, e v e n if successful, will not demonstrate the invalidity o f any outstanding criminal judgment against the p l a i n t i f f , the action should be allowed to proceed, in t h e absence of some other bar to the suit. 5 1 2 U.S. at 487 (footnotes omitted). The Court further held that " a 1983 cause of action for damages attributable to an u n c o n s t i t u t i o n a l conviction or sentence does not accrue until the c o n v i c t i o n or sentence has been invalidated." Id. at 489-90. " C o n s i d e r i n g Heck and summarizing the interplay between h a b e a s and 1983 claims, the Supreme Court recently explained t h a t , `a state prisoner's 1983 action is barred (absent prior i n v a l i d a t i o n ) - no matter the relief sought (damages or equitable r e l i e f ) , no matter the target of the prisoner's suit (state c o n d u c t leading to conviction or internal prison proceedings) - if s u c c e s s in that action would necessarily demonstrate the i n v a l i d i t y of the confinement or its duration.'" Williams v. C o n s o v o y , 453 F.3d 173, 177 (3d Cir. 2006) (quoting Wilkinson v. D o t s o n , 544 U.S. 74, 81-82 (2005)) (emphasis in original). 8 T h e claims asserted by Plaintiff regarding the investigation a n d evidence presented at his trial, and his sentencing, are the t y p e of claims that would necessarily demonstrate the invalidity o f his conviction. Accordingly, these claims have not yet accrued See Wallace v. Kato, a n d must be dismissed, without prejudice. 1 2 7 S. Ct. 1091 (2007); Adams v. City of Oakland, 1995 WL 150562 ( N . D . Cal. 1995). 2 C O NC L US I ON B a s e d upon the foregoing, Plaintiff's complaint will be d i sm i ss e d. The Court will file an appropriate order. s/ Dickinson R. Debevoise DICKINSON R. DEBEVOISE U n i t e d States District Judge D a t e d : April 1, 2009 Although Plaintiff is a federal prisoner, the reasoning of H e c k applies to federal prisoners' Bivens claims. See Williams v. H i l l , 74 F.3d 1339, 1341 (D.C. Cir. 1996)(reasoning that Bivens c l a i m s and Section 1983 claims are similar and Heck applies to B i v e n s claims); Abella v. Rubino, 63 F.3d 1063, 1065 (11th Cir. 1 9 9 5 ) (same); Zolicoffer v. Federal Bureau of Investigation, 884 F . Supp. 173, 175-76 (M.D. Pa. 1995)(same). 2 9