United States District Court, D. Oregon
FINDINGS AND RECOMMENDATIONS
MUSTAFA T. KASUBHAI UNITED STATES MAGISTRATE JUDGE
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. Compl., ECF No. 1. For the reasons
discussed below, the Court should dismiss Plaintiff's
claims with prejudice because amendment would be futile.
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.
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, 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.
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.
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).
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).
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.
Individual Defendants are Entitled to Absolute Prosecutorial
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).
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