Morgan v. DiScenza, et al., No. 2:2015cv02332 - Document 35 (W.D. Tenn. 2016)
Court Description: ORDER granting 20 Motion to Dismiss for Failure to State a Claim; granting 21 Motion to Dismiss for Failure to State a Claim; granting 22 Motion to Dismiss for Failure to State a Claim; adopting in part 27 Report and Recommendations. Signed by Judge Samuel H. Mays, Jr on 6/22/2016. (Mays, Samuel)
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Morgan v. DiScenza, et al. Doc. 35 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION ROGER DALE MORGAN, Plaintiff, v. TIM DISCENZA, MARK JACKSON, and BRIAN BURNS, Defendants. ) ) ) ) ) ) ) ) ) ) No. 15-02332 ORDER Before the Court is the Magistrate Judge’s February 9, 2016 Report and Recommendation (the “Report”) recommending that the Court grant Defendants Tim DiScenza (“DiScenza”), Mark Jackson (“Jackson”), and Brian Burns’ (“Burns”) “Defendants”) October 7, 2015 Motions to Dismiss. (collectively, (Report, ECF No. 27; DiScenza Mot., ECF No. 20; Burns Mot., ECF No. 21; Jackson Mot., ECF No. 22.) Plaintiff Roger Morgan (“Morgan”) filed an Objection on February 19, 2016. (Obj., ECF No. 28.) Defendants have not objected and the time to do so has passed. For the following reasons, the Magistrate Judge’s Report is ADOPTED in relevant in part, and the Motions to Dismiss are GRANTED. Dockets.Justia.com I. On Background May 13, 2008, Morgan was indicted in the Western District of Tennessee on two counts of making false statements to FBI agents contributions to about quid former pro quo Tennessee violation of 18 U.S.C. § 1001. offers Senator and financial John Ford, in (Indictment, ECF No. 1 in United States v. Roger Morgan, 8-cr-20157 (W.D. Tenn.).) Morgan pled guilty to one count on March 15, 2010, and on June 21, 2010, the Court imposed criminal monetary penalties of $5,000. (Order, ECF No. 45 in 8-cr-20157; Judgment, ECF No. 50 in 8-cr-20157.) On May 19, 2015, Morgan filed a pro se “Complaint Violation of Civil Rights Under 42 U.S.C. § 1983.” No. 1 at 1.) for (Compl., ECF Morgan alleges that DiScenza (a former Assistant United States Attorney 1 for the Western District of Tennessee), Jackson (an FBI agent), and Burns (an FBI agent) “made false statements to a grand jury to obtain an indictment against him.” (Id. at 2.) Morgan alleges that DiScenza “spoke to a potential witness . . . before the matter went to court and this could be construed as witness tampering.” (Id.) Morgan alleges that he “was never at any time read [his] Miranda Rights and was not under oath at any time.” (Id.) Morgan alleges that his “Brady 1 Morgan lists DiScenza’s former title as “Assistant United States Attorney General.” (Compl., ECF No. 1 at 1 (emphasis added).) That appears to be a typographical error or a misunderstanding. (DiScenza Mot., ECF No. 20 at 1.) The parties acknowledge that DiScenza was a federal prosecutor at all relevant times. 2 rights were violated because the government had information that proved [he] did not do what they accused [him] of doing, and this was admitted in open court after [he] pled guilty.” at 3.) Morgan “would also like to bring to [the (Id. Court’s] attention that [he] did pass a polygraph test showing that [he] did not make false statements to the government, but this was never admitted into evidence during the trial or even brought before the judge.” Morgan which was (Id.) alleges based on that the criminal violations of his judgment rights, against “cost him, [him] a financial loss of over $150,000 a year in contracts, which would now total over one million dollars Morgan does not request damages. in lost income.” (Id.) Instead, he seeks “to have [his] guilty plea dismissed and the indictments against [him] dismissed.” II. (Id.) Standard of Review Congress enacted 28 U.S.C. § 636 to relieve the burden on the federal judiciary by permitting the assignment of district court duties to magistrate judges. 237 F.3d States, 598, 490 602 U.S. (6th 858, Cir. See United States v. Curtis, 2001) 869-70 (citing (1989)); see Gomez v. also Peterson, 67 Fed. App’x 308, 310 (6th Cir. 2003). United Baker v. “A district judge must determine de novo any part of a magistrate judge’s disposition that has been properly objected to.” 3 Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1)(C). After reviewing the evidence, the court is free to accept, reject, or modify the proposed findings or recommendations of the magistrate judge. 28 U.S.C. § 636(b)(1)(C). The district court is not required to review——under a de novo or any other standard——those aspects of the report and recommendation to which no objection is made. Thomas v. Arn, 474 U.S. 140, 150 (1985). The district court should adopt the findings and rulings of the magistrate judge to which no specific objection is filed. “The does not tantamount filing meet to of the a vague, general, requirement complete Id. at 151. of failure or conclusory specific to objections objections object.” Cason, 354 Fed. App’x 228, 230 (6th Cir. 2009). and is Zimmerman v. Parties cannot validly object to a magistrate’s report without explaining the source of the error. Howard v. Sec’y of Health & Human Servs., 932 F.2d 505, 509 (6th Cir. 1991). Pleadings and documents filed by pro se litigants are to be “liberally construed,” and a “pro se complaint, however inartfully pleaded, must be held to a less stringent standard than formal pleadings drafted by lawyers.” 551 U.S. 89, 93 (2007). However, “the Erickson v. Pardus, lenient generally accorded to pro se litigants has limits.” treatment Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996) (citing Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991)). 4 The basic pleading essentials are not abrogated in pro se cases. 891 F.2d 591, 594 (6th Cir. 1989). Wells v. Brown, A pro se complaint must “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Luttrell, 414 Ashcroft v. quotations Fed. App’x 784, 556 U.S. Iqbal, and emphasis 786 (6th 662, omitted). 678 Cir. Barnett v. 2011) (2009)) District (quoting (internal Courts “have no obligation to act as counsel or paralegal” to pro se litigants. Pliler v. Ford, 542 U.S. 225, 231 (2004). District Courts are also not “required to create” a pro se litigant’s claim for him. Payne v. Secretary of Treasury, 73 Fed. App’x 836, 837 (6th Cir. 2003). III. Analysis In their Motions to Dismiss, Defendants argue that they acted under color of federal rather than state law and therefore that § 1983 does not create a cause of action against them. Defendants also argue that Morgan’s Complaint should not be construed as a claim under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), because they cannot be sued in their individual capacities under Bivens for equitable relief, such as the dismissal of an indictment. Defendants argue that, to the extent the Complaint is construed to raise an otherwise valid Bivens claim, it is barred by the applicable one-year statute of limitations and fails to allege 5 that Morgan’s conviction has been reversed on direct appeal, expunged, or called into question by a federal court’s writ of habeas corpus. defenses, Defendants including failure also to raise serve various process individual properly and absolute immunity. In his Response to the Motions, Morgan argues Complaint is properly construed as a Bivens action. No. 25 at 2.) not apply, that his (Resp., ECF He argues that the statute of limitations should because “[s]everal complaints were sent” at an earlier time “to the United States Government Attorney General in the Western District of Tennessee, as well as Washington, DC.” (Id. at 3.) Morgan argues that Defendants are not entitled to absolute immunity because they acted “knowingly and willfully.” (Id. at 2-3.) Morgan’s Response reasserts factual allegations made in the Complaint and alleges new facts. In her Report, the Magistrate Judge recommends that the Motions to Dismiss be granted on a multiple alternative grounds. First, she construed as recommends a that Bivens claim Morgan’s because § he 1983 claim neither not be explicitly invokes Bivens nor requests relief appropriately available under Bivens. (Report, ECF No. 27 at 7-8.) Second, she recommends that Morgan’s claim——if construed as a Bivens claim——be barred by the one-year statute of limitations, because Morgan had reason to know of the injury as early as June 21, 2010, when he 6 was sentenced, and because he alleges that he sent his first “complaint” to the “Attorney General” on March 15, 2012. at 8-9.) (Id. Third, she recommends that Morgan’s Bivens claim be dismissed for failure to “‘prove that the underlying criminal conviction has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determinations or called into question by a federal court’s issuance of a writ of habeas corpus.’” (quoting Heck v. Humphrey, 512 U.S. 477, (Id. at 9-10 486-87 (1994).) Fourth, the Magistrate Judge recommends that absolute immunity apply to Defendants in this case. Lucas, 2013 (extending WL 6179418 absolute enforcement officers at *4 immunity are (Id. at 10-11; see Ransaw v. (N.D. to alleged Ohio Bivens to have Nov. actions 25, 2013) when testified law falsely before a grand jury); Imbler v. Pachtman, 424 U.S. 409, 424 (1976) (extending absolute immunity when federal prosecutors are alleged to have violated constitutional rights in their performance of acts that are an “integral part of the judicial process”).) In his Objection, Morgan asserts, without argument, that the § 1983 claim raised in his Complaint should be construed as a Bivens claim. claim is not (Obj., ECF No. 28 at 1.) time-barred, because he He argues that the “began to file [his] complaints as soon as it was made known to [him] that [his] 7 rights had been violated” and his complaints were filed “within a year after [he] recognized [his] rights were violated.” at 2.) (Id. Addressing immunity, he argues that “clearly under the circumstances of the Bivens Rights as it relates to Color of law complaints does not give absolute immunity to federal agents as stated in 2014 on the FBI’s website which states that federal agents on or appropriate equitable off duty official relief must conduct capacity.” rather than (Id. damages, themselves at 4.) Morgan in To a[n] support argues——without citation——that “the United States Government in 1980 regarding Statute 28-USC-1331 stated, ‘Therefore a federal court can hear a federal question plaintiff.’” one even if no money is sought by the (Id. at 6.) Morgan’s least case Objection adequate is ground unresponsive for to dismissal. the As Report the on at Magistrate Judge correctly notes, the Supreme Court has held that a § 1983 plaintiff “‘must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by determinations a state or called tribunal into authorized question issuance of a writ of habeas corpus.’” by a to make federal such court’s (Report, ECF No. 27 at 9-10 (quoting Heck, 512 U.S. at 486-87).) The requirement in Heck has been extended to Bivens claims by the Sixth Circuit. See Lanier v. Bryant, 332 F.3d 999, 1005-1006 (6th Cir. 2003); 8 Robinson v. Jones, 142 F.3d 905, 907 (6th Cir. 1998). makes no allegation in his Complaint that his Morgan underlying criminal conviction has been reversed, expunged, invalidated, or called into question via habeas corpus. In his Objection, he does not object to the Magistrate Judge’s recommendation that the Motions to Dismiss be granted based on Heck——nor does it appear that there is any basis for such an objection. Morgan seeks to have his § 1983 claim construed as a Bivens claim. So construed, and absent objection to the Magistrate Judge’s Heck recommendation, Arn counsels the Court to adopt the Report’s recommendation that Morgan has failed to satisfy the requirements of Heck. Arn, 474 U.S. at 151. That recommendation is ADOPTED. Morgan has failed to state a claim upon which relief may be granted under § 1983 or Bivens. The Motions to Dismiss are GRANTED. IV. Conclusion For the foregoing reasons, the Magistrate Judge’s Report is ADOPTED in relevant part, and the Motions to Dismiss are GRANTED. So ordered this 22nd day of June, 2016. /s/ Samuel H. Mays, Jr._____ SAMUEL H. MAYS, JR. UNITED STATES DISTRICT JUDGE 9
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