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Mayer v. United States

United States District Court, D. Oregon

October 16, 2019




         Defendants filed a motion to dismiss Plaintiff's claims under Federal Rule of Civil Procedure 12(b)(6). Mot. Dismiss, ECF No. 46. Pro se Plaintiff alleges negligence, and constitutional violations of his Fifth and Eighth Amendment rights.[1] Compl., ECF No. 1. For the reasons discussed below, the Court should dismiss Plaintiff's claims with prejudice because amendment would be futile.


         In 2005, Defendants prosecuted Plaintiff as a felon in possession of a firearm under the Armed Career Criminal Act (“ACCA”). Compl. ¶ 23, ECF No. 1. Plaintiff alleges that his prior Oregon burglary conviction qualified as a predicate offense under the ACCA's “residual clause, ” and based on that clause, Defendants sentenced Plaintiff to 180 months in prison. Id. at ¶¶ 23-24. Plaintiff claims that in 2015, while he was in prison, the United States Supreme Court ruled that the ACCA's residual clause was void for vagueness and violated due process. Id. at ¶¶ 24-25 (citing Johnson v. United States, 135 S.Ct. 2551 (2015). Plaintiff alleges that the 180-month sentence he received under the ACCA exceeded the otherwise usual sentencing guideline of approximately 57 months. Id. Plaintiff alleges he served in excess of seven years over the 57-month guideline due to sentencing based on the unconstitutional ACCA residual clause. Id. at ¶¶ 25-26. Plaintiff prays for $2, 791, 250 for loss of wages, pain and suffering, and loss of familial association. Id. at ¶ 27.

         Plaintiff claims that Defendants Holder, Yates, and Papagni violated his constitutional rights by prosecuting him for a statue later held unconstitutional. Id. at ¶¶ 10-13. Plaintiff claims that the United States acted negligently through the Department of Justice, Eric Holder, Sally Q. Yates, Karin J. Immergut[2], and Frank Papagni, by breaching the duty of care when enforcing and prosecuting an unconstitutional statute resulting in Plaintiff's unlawful imprisonment. Id. at ¶ 17.

         In their motion to dismiss, Defendants argue that Plaintiff's claims must be dismissed because federal prosecutors are entitled to absolute prosecutorial immunity, and that prosecutorial immunity extends to Defendant United States under the plain terms of the Federal Tort Claims Act (“FTCA”). Mot. Dismiss 1, 8, ECF No. 46. Defendants also argue that Plaintiff's federal tort claim is both insufficiently pleaded and untimely. Id. at 1. Finally, Defendants also claim that Plaintiff failed to state a Bivens claim. Id. at 4.


         A motion to dismiss for failure to state a claim may be granted only when there is no cognizable legal theory to support the claim or when the complaint lacks sufficient factual allegations to state a facially plausible claim for relief. Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). In evaluating the sufficiency of a complaint's factual allegations, the court must accept as true all well-pleaded material facts alleged in the complaint and construe them in the light most favorable to the non-moving party. Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012); Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010). To be entitled to a presumption of truth, allegations in a complaint “may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). All reasonable inferences from the factual allegations must be drawn in favor of the plaintiff. Newcal Indus. v. Ikon Office Solution, 513 F.3d 1038, 1043 n.2 (9th Cir. 2008). The court need not, however, credit the plaintiff's legal conclusions that are couched as factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).

         A complaint must contain sufficient factual allegations to “plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation.” Starr, 652 F.3d at 1216. “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.” Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). “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.” Mashiri v. Epstein Grinnell & Howell, 845 F.3d 984, 988 (9th Cir. 2017) (quotation marks omitted).


         Individual Defendants are entitled to prosecutorial immunity for their actions in prosecuting Plaintiff under the ACCA residual clause even though it was later ruled unconstitutional. Defendant United States is also entitled to immunity, because the prosecutorial immunity afforded the individual defendants extends to the United States, and because Plaintiff's claims are barred by the plain language of the FTCA.

         1. Individual Defendants are Entitled to Absolute Prosecutorial Immunity

         Defendants claim that Plaintiff fails to adequately plead a Bivens claim. Mot. Dismiss 4, ECF No. 46. For background purposes, in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, the Supreme Court held that a plaintiff could sue federal officers in their individual capacity for economic damages resulting from officers violating the plaintiff's constitutional rights. 403 U.S. 388, 396 (1971).

         However, even if a Bivens claim is properly pled, an action under Bivens must be dismissed if the defendant is immune from suit. Hui v. Casteneda, 559 U.S. 799, 807 (2010) (citing Bivens, 403 U.S. at 397-98). The Court does not reach the merits of the potential Bivens action here, instead recommending that even if ...

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