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WOODRUFF v. MUELLER

United States District Court, Northern District of California


March 26, 2003

KEVIN PAUL WOODRUFF, PLAINTIFF,
v.
ROBERT S MUELLER III, ET AL, DEFENDANTS

The opinion of the court was delivered by: Vaughn R. Walker, United States District Judge

ORDER

This order addresses motions pending in the two above-captioned cases, which the court related on November 5, 2002. See C 02-3307 VRW (02-3307) Doc #16; C 02-3460 VRW (02-3460) Doc #23. Defendants in each case have filed motions to dismiss. 02-3307 Docs ##4, 11; 02-3460 Docs ##5, 6, 29, 31. Plaintiff, acting pro Se, has filed in each case a motion for discovery of the character of the United States District Court. 02-3307 Doc #14; 02-3460 Doc #20. Plaintiff has also filed in each case a motion for summary judgment. 02-3307 Doc #17; 02-3460 Doc #24. In addition, plaintiff has filed a motion to strike defendants' motions to dismiss in 02-3307. 02-3307 Doc #25. And he has filed motions for entry of default against three defendants named in 02-3460. 02-3460 Docs ##35, 36, 37.

For the reasons detailed below, defendants' motions to dismiss in both cases (02-3307 Docs ##4, 11; 02-3460 Docs ##5, 6, 29, 31) are GRANTED. Plaintiffs' motions for summary judgment in both cases (02-3307 Doc #17; 02-3460 Doc #24) are DENIED. Plaintiff's motion to strike (02-3307 Doc #25) is DENIED. And plaintiff's motions for entry of default (02-3460 Docs ##35, 36, 37) are DENIED. Because the court concludes that these matters are suitable for determination without oral argument, the court VACATES all hearings scheduled in these two actions. See Civ LR 7-1(b).

I

The complaint in each action alleges misconduct by defendants relating to plaintiff's criminal conviction on four counts of interference with commerce by threats or violence under the Hobbs Act, 18 U.S.C. § 1951 (a). See CR 93-438 VRW.

A

In the complaint in the first-filed action (02-3307), plaintiff alleges that "Defendants on August 5, 1993, brought a fraudulent instrument, to wit[] an indictment/complaint, in `some kind of hearing', alleged court, with appraisers and collectors, imposters, impostors [sic], alleged judges [] in a quasi judicial, quasi criminal setting, alleging felonies, when they are corporation infractions." See 02-3307 Compl (02-3307 Doc #1, Attach) at 3, ¶ 2. Plaintiff alleges that defendants conspired to defraud plaintiff, apparently by aiding and abetting his seizure by agents of the Federal Bureau of Investigation, which conduct plaintiff alleges was in some unspecified way unlawful. See id. The complaint seeks relief for "security fraud, extortion, battery, slander, negligence, conflict of interest and malice. See id at 3-4, ¶ 2. Plaintiff seeks immediate release from incarceration and damages of $111,500,000. See id at 4-5, Prayer.

Plaintiff filed the complaint in Alameda County superior court on May 29, 2002. See 02-3307 Not of Rem (Doc #1) at 2, ¶ 1. Service was effected on defendants Valliere, Meagher, Lawrence, Jacobsen and the United States on June 10, 2002. See id at 2, ¶ 2. There is no indication that service was effected on any of the other defendants. Those defendants who were served timely removed the action to federal court pursuant to 28 U.S.C. § 1331 and 1346.

Pursuant to authorization under 28 C.F.R. § 15.3, the chief of the civil division of the United States Attorney's Office then certified that defendant Mueller was acting in his capacity as United States Attorney and defendants Valliere, Meagher, Lawrence and Jacobsen were acting in their official capacities as assistant United States attorneys in all matter relating to plaintiff's arrest, indictment and conviction. See id at 2-3, ¶¶ 4-5; see 02-3307 Not of Cert (02-3307 Doc #3). That certification is conclusive for purposes of removal. See 28 U.S.C. § 2679 (d). Upon certification, the United States (the government) is automatically substituted as the sole federal defendant pursuant to 28 U.S.C. § 1346 (b)

Upon removal, the government filed a motion to dismiss. 02-3307 Doc #4. Plaintiff subsequently filed objections to the court's jurisdiction. 02-3307 Doc #8. On August 22, 2002, this action was reassigned to the undersigned. 02-3307 Doc #10. The government promptly renoticed its motion to dismiss. 02-3307 Doc #11.

On September 18, 2002, plaintiff filed an ex parte application to discover the character of the United States district court. 02-3307 Doc #14. On November 5, 2002, the court related this matter to 02-3460. On November 7, 2002, plaintiff filed a motion for summary judgment. 02-3307 Doc #17. And on December 6, 2002, plaintiff filed a motion to strike defendant's motion to dismiss. 02-3307 Doc #25.

B

In the complaint in the second-filed action (02-3460), plaintiff alleges that defendants, acting as "agents of the United States of America, Inc, * * * knowingly participated in fraud against the Plaintiff, acting in malice and deceit." See 02-3460 Compl (02-3460 Doc #1, Attach) at 2. Plaintiff seeks relief from "irreparable harm and injury" caused by defendants conduct. Id. The complaint alleges that the "United States District Court for the Northern District of California is a fiction," and so without the power "to make liens." Id. at 4. The complaint does not identify the nature of the liens allegedly made by or through the agency of the court. The complaint ultimately asserts that plaintiff's conviction was "void on [its] face" and that plaintiff is therefore entitled to damages of $106,000,000 for "securities fraud, extortion, battery, slander negligence, conflict of interest and malice." Id. at 5, 7.

Plaintiff filed the 02-3460 complaint on March 5, 2002, also in Alameda County superior court. See 02-3460 Not of Rem (02-3460 Doc #1) at 2, ¶ 1. Service was effected on Valliere on her own behalf and on behalf of Mueller, Jacobsen, Hemji and the United States. Id. at 2, ¶ 2. The record does not reflect service of the summons and complaint on any other named defendant. The served defendants timely removed the action on July 19, 2002, pursuant to 28 U.S.C. § 1331 and 1346. As with the other action, the chief of the civil division of the United States Attorney's Office certified that defendants Mueller, Valliere, Jacobsen and Hemji were acting within the scope of their employment as federal employees in all conduct pertaining to the arrest, indictment and conviction of plaintiff. See 02-3460 Not of Rem (02-3460 Doc #1) at 2-3, ¶¶ 5-6; see 02-3460 Not of Cert (02-3460 Doc #3). That certification is conclusive for purposes of removal. See 28 U.S.C. § 2679 (d). As a result of this certification, the United States (the government) is automatically substituted as the sole federal defendant in this action pursuant to 28 U.S.C. § 1346 (b).

On July 26, 2002, defendant Ronald Tyler (Tyler), an assistant federal public defender who briefly represented plaintiff in the underlying criminal matter, filed a motion to dismiss. 02-3460 Doc #5. The government filed a motion to dismiss the same day. 02-3460 Doc #6. On August 7, 2002, the case was reassigned to the undersigned. 02-3460 Doc #13. And on November 5, 2002, this action was related to 02-3307. 02-3460 Doc #23. On November 18, 2002, the government renoticed its motion to dismiss. 02-3460 Doc #29. On December 20, 2002, Tyler did the same. 02-3460 Doc #31.

Plaintiff filed a motion for discovery of the character of the United States District Court on September 23, 2002. 02-3460 Doc #20. Plaintiff filed a motion for summary judgment on November 7, 2002. 02-3460 Doc #24. And plaintiff filed motions for entry of default against defendants Brandon, Pirelli and Ross on March 13, 2003. 02-3460 Docs ##35, 36, 37.

II

The court first turns to the motions pending in 02-3307. The court addresses the motions pending in 02-3460 in part III below.

A

The sources of the court's jurisdiction in this matter are clear. Section 2769(d)(2) provides that any civil action commenced in state court against a defendant certified by the Attorney General or his designee to have been acting within the scope of his employment by the government "shall be removed without bond at any time before trial by the Attorney General to the district court of the United States for the district and division embracing the place in which the action or proceeding is pending." Id. Upon removal, such an action "shall be deemed to be an action or proceeding brought against the United States * * * and the United States shall be substituted as the party defendant." Id.

An authorized delegate of the Attorney General has certified that defendants Mueller, Lawrence, Jacobsen, Meagher and Valliere were acting with the scope of their government employment in all conduct that might be related to the allegations of the complaint. See Not of Cert (02-3307 Doc #3). Pursuant to 28 U.S.C. § 2679 (d)(2), the government is SUBSTITUTED as party defendant for the aforementioned defendants.

Section 1346 of Title 28 of the United States Code provides a district court with "exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government acting within the scope of his employment * * *." 28 U.S.C. § 1346 (b)(1). The court therefore has subject matter jurisdiction over all claims in this action against the United States. To the extent that the complaint can be read to recite any claims not directed at the United States and not arising under federal law, the allegations of the complaint suffice to demonstrate that those claims "form part of the same case or controversy under Article III or the United States." 28 U.S.C. § 1367 (a). As such, those claims fall within the proper scope of the court's supplemental jurisdiction. See id.

Plaintiff's motion to discover the character of the court (02-3307 Doc #14) is in effect a challenge to the court's jurisdiction. Because the United States has adequately demonstrated the court's subject matter jurisdiction over this action, plaintiff's motion to discover the nature of the court (02-3307 Doc #14) is DENIED.

B

The complaint of a pro se litigant "should not be dismissed for failure to state a claim unless it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Hughes v. Rowe, 449 U.S. 5, 9 (1980) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972)). Although the court must assume all factual allegations of the plaintiff to be true, merely "[c]onclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss for failure to state a claim." In re VeriFone Securities Litigation, 11 F.3d 865, 868 (9th Cir 1993). It is thus improper "[to] assume that [plaintiff] can prove facts that [he] has not alleged." Associated General Contractors of California, Inc v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). A complaint may be dismissed either for "lack of a cognizable legal theory or insufficient facts under a cognizable legal claim." Robertson v. Dean Witter Reynolds, Inc, 749 F.2d 530, 533-34 (9th Cir 1984). Even if dismissal is proper, "[d]ismissal without leave to amend is improper unless it is clear * * * that the complaint could not be saved by any amendment." Polich v. Burlington Northern, Inc, 942 F.2d 1467, 1472 (9th Cir 1991)

"A prosecutor performing an advocate's role is an officer of the court entitled to absolute immunity." Herb Hallman Chevrolet, Inc v. Nash-Holmes, 169 F.3d 636, 643 (9th Cir 1999) (citing Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993)). Absolute immunity extends to the initiation of a prosecution and presentation of the government's case "insofar as that conduct is `intimately associated with the judicial phase of the criminal process.'" Roe v. City and County of San Francisco, 109 F.3d 578, 583 (9th Cir 1997) (quoting Burns v. Reed, 500 U.S. 478, 486 (1991)). A prosecutor performing an administrative or investigative function is not entitled to absolute immunity. Fletcher v. Kalina, 93 F.3d 653, 655 (9th Cir 1996). To determine the nature of a particular act — whether judicial, administrative or investigative — the court must "look at `the nature of the function performed, not the identity of the actor who performed it.'" Id. (quoting Forrester v. White, 484 U.S. 219, 229 (1988)).

The government has sovereign immunity from suit unless it clearly and expressly waives its immunity from suit. See United States v. Testan, 424 U.S. 392, 399 (1976). A district court's jurisdiction over a suit filed against the government is defined by the terms by which the government has previously consented to entertain that suit. See United States v. Sherwood, 312 U.S. 584, 586 (1941). The limits of the courts jurisdiction over tort claims filed against the United States are established by the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq.

The FTCA provides an exclusive remedy for persons injured by the tortious conduct of a government employee acting within the scope of his employment. See 28 U.S.C. § 2679 (b)(1). And any action seeking monetary damages for torts committed by a government employee acting within the scope of his employment may not go forward "unless the [plaintiff] shall have first presented the claim to the appropriate federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail." 28 U.S.C. § 2675 (a); see McNeil v. United States, 508 U.S. 106, 112 (1993) ("The most natural reading of the statute indicates that Congress intended to require complete exhaustion of Executive remedies before invocation of the judicial process"). "The claim requirement of section 2675 is jurisdictional in nature and may not be waived." Burns v. United States, 764 F.2d 722, 723 (9th Cir 1985).

To the extent that the complaint alleges claims arising out of plaintiff's criminal arrest, indictment and prosecution, those claims must be dismissed. The government has absolute immunity from those claims and there is no conceivable amendment to the complaint — whether factual or legal — that could overcome that immunity. To the extent that the complaint alleges independent torts against any government employees acting within the scope of their employment — including claims involving government employee's performance of their administrative or investigative functions — the complaint does not contain any statement from which the court can reasonably infer that plaintiff has exhausted his administrative remedies, as required by the FTCA. Nowhere does the plaintiff plead that he has fulfilled any of the requirements of 28 U.S.C. § 2675 (a). Nor has plaintiff filed an opposition to the government's motion disputing any of these issues.

As a result, all claims against the government must be DISMISSED. Dismissal is WITH PREJUDICE regarding any claim relating to the conduct of the prosecution of plaintiff by employees of the United States acting in their prosecutorial capacities. Dismissal is WITHOUT PREJUDICE regarding any claim arising out of the conduct of government employees acting in their administrative or investigative capacities. Dismissal is likewise WITHOUT PREJUDICE regarding plaintiff's tort claims. The court grants plaintiff leave to amend the complaint in this action to plead facts, if such facts exist, that (1) identify unlawful conduct of government employees acting in an administrative or investigative capacity for which plaintiff is entitled to relief; (2) identify facts that would support any tort claim against defendants and (3) identify facts demonstrating that plaintiff has complied with the requirements of 28 U.S.C. § 2675 (a). The court reminds plaintiff that, pursuant to Civ LR 10-1, "an amended pleading must reproduce the entire proposed pleading and may not incorporate any part of a prior pleading by reference." Id. If plaintiff chooses to file an amended complaint, he shall do so on or before May 15, 2003.

The government's motion to dismiss (02-3307 Docs ##4, 11) is GRANTED.

C

Plaintiff has moved for summary judgment (02-3307 Doc #17) and to strike the United States' motion to dismiss (02-3307 Doc #25) on the same ground: the alleged failure of the United States to comply with the requirements of FRCP 81(c). Federal Rule of Civil Procedure 81(c) requires that

[i]n a removed action in which the defendant has not answered, the defendants shall answer or present the other defenses or objections available under these rules within 20 days after the receipt through service or otherwise of a copy of the initial pleading setting forth the claim for relief upon which the action or proceeding is based, or within 20 days after the service of summons upon such initial pleadings, then filed, or within 5 days after the filing of the petition for removal, whichever period is longest.
Id.

Federal Rule of Civil Procedure 12 provides that "the service of a motion permitted under this rule alters [the periods of time in which a responsive pleading must be filed] as follows: (A) if the court denies the motion or postpones its disposition until the trial on the merits, the responsive pleading shall be filed within 10 days after notice of the court's action." FRCP 12(a)(4)(A).

The timely filing of a motion to dismiss under FRCP 12(b)(1) and (6) constitutes the presentation of a defense "available under" the Federal Rules of Civil Procedure. FRCP 81(c). The United States filed its motion to dismiss five days after removal, thereby meeting its obligations under FRCP 81(c). This fact removes the only basis on which plaintiff seeks summary judgment or the striking of the government's motion to dismiss. Plaintiff's motions (02-3307 Doc ##17, 25) must be DENIED.

D

With respect to the other named defendants, Henry Birks & Sons, Mark Areias, Sam Bloch and Arthur Oppenheimer, there is nothing in the record to indicate that service has been effected on them. Federal Rule of Procedure 4(m) requires "service of the summons and complaint * * * upon a defendant within 120 days after the filing of the complaint." Id. If service is not effected within that time, "the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time." Id. Federal Rule of Civil Procedure 4(1) requires that a party provide the court valid proof that service of the summons and complaint has been timely effected. See id. It also sets forth the content of a valid proof of service. See id.

Pursuant to FRCP 4(m), the court ORDERS plaintiff to SHOW CAUSE in a writing not to exceed five pages why the court should not dismiss all claims against the remaining defendants for failure to effect timely service. Plaintiff shall file a return to this order on or before May 15, 2003. If service has been effected on any or all of these defendants, plaintiff attach proof of service in the form specified by FRCP 4(1) to his return to this order.

III

A

The bases for the court's subject matter jurisdiction over the second-filed action (02-3460) are identical to those asserted for jurisdiction over the first-filed action (02-3307). For the reasons already stated, the United States (government) is SUBSTITUTED as defendants Mueller, Jacobsen, Valliere and Hemji. And plaintiff's motion challenging the court's jurisdiction, styled a motion to discover the character of the court (02-3460 Doc #20), is DENIED.

B

The government's motion to dismiss (02-3460 Docs ##6, 29) is based on grounds identical to those discussed above. Plaintiff's opposition to the government's motion in this action fails to address the issue of absolute immunity or to explain or excuse plaintiff's failure to comply with the requirements of the FTCA. See 02-3460 Docs ##17, 18.

For the reasons stated above, therefore, all claims against the government are DISMISSED. Dismissal is WITH PREJUDICE regarding any claim relating to the conduct of the prosecution of plaintiff by employees of the United States acting in their prosecutorial capacities. Dismissal is WITHOUT PREJUDICE regarding any claim arising out of the conduct of government employees acting in their administrative or investigative capacities. Dismissal is likewise WITHOUT PREJUDICE regarding plaintiff's tort claims. The court grants plaintiff leave to plead in the amended complaint in C 02-3307 facts, if such facts exist, that (1) identify unlawful conduct of government employees acting in an administrative or investigative capacity for which plaintiff is entitled to relief; (2) identify facts that would support any tort claim against defendants and (3) identify facts demonstrating that plaintiff has complied with the requirements of 28 U.S.C. § 2675 (a).

The government's motion to dismiss (02-3460 Docs ##6, 29) is GRANTED.

C

Plaintiff's motion for summary judgment (02-3460 Doc #24) is based on the same misreading of FRCP 81(c) described above. For the reasons already stated, plaintiff's motion for summary judgment (02-3460 Doc #24) is DENIED.

D

With respect to defendants Herrera, Lockyer, Ross, Pirelli, Brandon, Henry Birk & Sons, Areias, Bloch and Oppenheimer, there is nothing in the record to indicate that service has been effected on those defendants in compliance with FRCP 4(m). Nor has the court been provided with proof of service in accordance with the requirements of FRCP 4(1).

Until the court can satisfy itself that the defendants just identified have been properly served, the entry of default against any of those defendants is premature. See FRCP 55. Plaintiff has moved for the entry of default against defendants Brandon, Pirelli and Ross. See 02-3460 Docs ##35, 36, 37. Absent proof that those defendants have been served, plaintiff's motions for the entry of default (02-3460 Docs ##35, 36, 37) must be DENIED. Denial is WITHOUT PREJUDICE to plaintiff renewing these motions for default once plaintiff has adequately demonstrated that those defendants were timely and properly served.

To that end, pursuant to FRCP 4(m), the court ORDERS plaintiff to SHOW CAUSE in a writing not to exceed five pages why the court should not dismiss all claims against the remaining defendants for failure to effect timely service. Plaintiff shall file a return to this order on or before May 15, 2003. If service has been effected on any or all of these defendants, plaintiff shall provide proof of service in the form specified by FRCP 4(1). Plaintiff's return to this order shall be filed in C 02-3307 VRW.

E

Only Tyler's motion to dismiss under 28 U.S.C. § 1915 (d)(2) and 1915A or FRCP 12(b)(6) (02-3460 Docs ##5, 31) now remains unaddressed.

Section 1915A of Title 28 of the United States Code requires the court to review either before or after docketing, "a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity." 28 U.S.C. § 1918A(a). Upon completion of such review, § 1918A(b) authorizes dismissal of the complaint or any portion of the complaint that is "frivolous, malicious, or fails to state a claim upon which relief may be granted." 28 U.S.C. § 1918A(b)(1). Plaintiff, who is currently incarcerated, meets the definition of prisoner provided by the statute. See 28 U.S.C. § 1918A(c). The standard for dismissal under § 1918A is the same as that for dismissal under FRCP 12(b)(6), which the court has already discussed. See Johnson v. Hill, 965 F. Supp. 1487, 1488 (ED Va 1997).

A complaint must contain, among other things, "a short and plain statement of the claim showing that the pleader is entitled to relief." FRCP 8(a). "Each averment of a pleading shall be simple, concise, and direct." FRCP 8(e)(1). Although the court is required to construe the pleadings "so * * * as to do substantial justice," the court cannot read into a complaint what is not there. FRCP 8(f). The short plain statement "must simply `give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.'" Swierkiewicz v. Sorema NA, 531 U.S. 506, 513 (2002) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). But it remains possible to fall short of even this liberal standard.

With respect to claims against Tyler, the complaint is inadequate to put Tyler on notice what conduct he is alleged to have engaged for which plaintiff seeks relief. Tyler's name appears in the case caption and the opening and concluding paragraphs of the complaint, but is elsewhere conspicuous only by its absence. Nowhere does plaintiff identify any conduct of Tyler that contributed to the wrongs alleged. "A mere allegation of conspiracy without factual specificity is insufficient." Karim-Panahi v. Los Angeles Police Dept, 839 F.2d 621, 626 (9th Cir 1988) (citing Jaco v. Bloechle, 739 F.2d 239, 245 (6th Cir 1984); Burnett v. Short, 441 F.2d 405, 406 (5th Cir 1971)).

Tyler's motion to dismiss (Docs ##5, 31) is GRANTED. Dismissal is without prejudice to plaintiff's including in any amended complaint filed in C 02-3307 VRW a short and plain statement of any claims plaintiff seeks to bring against Tyler. That statements should specify (1) what conduct of Tyler gives rise to the claims; (2) the source of the court's jurisdiction over those claims; and (3) whether those claims are brought against Tyler in an individual capacity or as an employee of the United States. Any tort claims stated against Tyler in his capacity as a federal employee must include facts indicating when and how plaintiff has complied with the requirements of the FTCA as outlined above or why the requirements of the FTCA do not apply to those claims. See, e.g., Sullivan v. Freeman, 944 F.2d 334 (7th Cir 1991) (discussing the extent to which federal public defenders are covered by the FTCA).

III

The following list summarizes the court's determinations regarding the pending motions in these two actions:

(1) In C 02-3307 VRW:

(a) Pursuant to 28 U.S.C. § 2679, the United States is SUBSTITUTED for defendants Mueller, Valliere, Meagher, Lawrence and Jacobsen.
(b) The government's motion to dismiss (02-3307 Docs ##4, 11) is GRANTED. Dismissal is WITH PREJUDICE as to all claims against the government for conduct of its employees in plaintiff's criminal prosecution. Dismissal is WITHOUT PREJUDICE as to any claims against government employees for misconduct in the performance of their administrative or investigative functions or as to any tort claims unrelated to plaintiff's criminal prosecution. If he chooses, plaintiff shall file an amended complaint that comports with the terms of this order on or before May 15, 2003.
(c) Plaintiff's motion to discover the character of the United States District Court (02-3307 Doc #14) is DENIED.
(d) Plaintiff's motion for summary judgment (02-3307 Doc #17) is DENIED.
(e) Plaintiff's motion to strike (02-3307 Doc #25) is DENIED.
(f) Plaintiff is ORDERED to SHOW CAUSE why the claims against the remaining defendants should not be dismissed for failure to effect proper service pursuant to FRCP 4(m). Plaintiff shall file a return to this order on or before May 15, 2003.
(2) In C 02-3460 VRW:

(a) Pursuant to 28 U.S.C. § 2679, the United States is SUBSTITUTED for defendants Mueller, Valliere, Jacobsen and Hemji.
(b) The government's motion to dismiss (02-3460 Docs ##6, 29) is GRANTED. Dismissal is WITH PREJUDICE as to all claims against the government for conduct of its employees in plaintiff's criminal prosecution. Dismissal is WITHOUT PREJUDICE as to any claims against government employees for misconduct in the performance of their administrative or investigative functions or as to any tort claims unrelated to plaintiff's criminal prosecution. Plaintiff shall state any additional claims authorized by this order in the amended complaint to be filed in C 02-3307 VRW on or before May 15, 2003.
(c) Tyler's motion to dismiss (02-3460 Docs ##5, 31) is GRANTED. Dismissal is WITHOUT PREJUDICE to plaintiff's including in the amended complaint to be filed in C 02-3307 claims against Tyler that comport with the terms of this order.
(d) Plaintiff's motion to discover the character of the United States District Court (02-3460 Doc #20) is DENIED.
(e) Plaintiff's motion for summary judgment (02-3460 Doc #24) is DENIED.
(f) Plaintiff's motions for entry of default against Brandon, Pirelli and Ross 02-3460 Docs ##35, 36, 37) are DENIED. Denial is WITHOUT PREJUDICE to the renewal of these motions upon adequate demonstration that these defendants were timely and properly served.
(g) Plaintiff is ORDERED to SHOW CAUSE why the claims against the remaining defendants should not be dismissed for failure to effect proper service pursuant to FRCP 4(m). Plaintiff shall file a return to this order on or before May 15, 2003, in C 02-3307 VRW.
The clerk is directed to close the file in C 02-3460 VRW, and not to accept any future filings in that action. THE PARTIES SHALL MAKE ALL FUTURE FILINGS IN C 02-3307 VRW ONLY.

IT IS SO ORDERED.

20030326

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