IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
June 3, 2005
CLINTON L. WATSON, PLAINTIFF,
CARLOS SINGH, ASSISTANT UNITED STATES ATTORNEY; JAMES WARE, UNITED STATES DISTRICT JUDGE; JULIE C. REAGIN, ASSISTANT UNITED STATES ATTORNEY; DOUGLAS CHANG, ASSISTANT UNITED STATES ATTORNEY; ANDREW DOOHER, SECRET SERVICE AGENT; RALPH CURTIS, SECRET SERVICE AGENT; DAN SCHOTT, SECRET SERVICE AGENT; CELLULAR ONE CORPORATION; TIM LONG; PETER SCHEKELOFF, AKA PETER GREGORY; AND TOM MOORE; DEFENDANTS.
The opinion of the court was delivered by: Claudia Wilken United States District Judge
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS
Defendant United States of America, which has been substituted for Defendants Carlos Singh, James Ware, Julie C. Reagin and Douglas Chang (Original Defendants), moves to dismiss the first amended complaint*fn1 (FAC) against them filed by Plaintiff Clinton L. Watson. Plaintiff opposes the motion. The matter was taken under submission on the papers. Having considered the parties' papers, the Court GRANTS the United States' motion to dismiss.
The following facts are alleged in Plaintiff's FAC. Judge Ware sits on the United States District Court for the Northern District of California. Singh, Reagin and Chang were, at all times relevant to this action, Assistant United States Attorneys. On April 21, 1994, federal agents, pursuant to a warrant, executed a search of Plaintiff's home and seized several cars, cash, cashier's checks, and software and computer chips worth at least $500,000. On September 7, 1994, based in part upon evidence seized on April 21, a federal grand jury indicted Plaintiff for three violations of Title 18 U.S.C. section 1029 (fraud in connection with access devices) based upon Plaintiff's possession and trafficking in illegal cellular telephones. Plaintiff's criminal trial commenced in this District on September 18, 1995, with Judge Ware presiding. On September 25, 1995, a jury found Plaintiff guilty on all three counts and, on May 22, 1996, Plaintiff was sentenced to sixty months of incarceration and ordered to compensate the victims of his criminal activities. Plaintiff alleges that Judge Ware gave the jury erroneous instructions prior to its deliberations. Plaintiff timely appealed and, on July 7, 1997, the Ninth Circuit affirmed both his conviction and his sentence.
On January 26, 1999, Singh, Reagin and Chang moved for a writ of execution against Plaintiff and, on that same day, Judge Ware granted the motion and issued a writ for $318,071.70. Plaintiff alleges that he was not given proper notice of the writ, and that he did not receive a copy of it until June 21, 1999. On July 8, 1999, Plaintiff moved to quash the writ; on August 12, 1999, Judge Ware denied Plaintiff's motion. Plaintiff thereafter appealed the denial of his motion to quash the writ and, on September 21, 1999, the appeal was denied by the Ninth Circuit.
There is a docket entry in Plaintiff's criminal case dated March 12, 2003 which states that the writ of execution remained un-executed due to instructions from the United States Attorney's Office that the writ be stayed pending Plaintiff's appeal. On March 20, 2003, Judge Ware granted a second motion for a writ of execution against Plaintiff. On November 20, 2003, Plaintiff moved to quash the writ. Also on November 20, 2003, Plaintiff filed the complaint that initiated this action.
On December 22, 2003, Judge Ware denied Plaintiff's motion to quash the second writ of execution. On March 13, 2004, the United States Marshal's Service conducted a sale of three of Plaintiff's automobiles and Plaintiff's Rolex watch to satisfy in part the restitution judgment against Plaintiff. On June 1, 2004, Plaintiff filed the FAC. The FAC alleges that (1) the Original Defendants constitute a criminal enterprise under the Racketeer Influenced and Corrupt Organizations (RICO) Act, (2) all Defendants violated Plaintiff's civil rights under Title 42 U.S.C. sections 1983, 1985 and 1986, and (3) Plaintiff's allegations constitute a Bivens action. All of the FAC's causes of action appear to arise out of Defendants' alleged conduct in relation to the prosecution of Plaintiff's criminal case. On June 15, 2004, pursuant to Title 28 U.S.C. section 2679(d), the United States was substituted as a party for the Original Defendants. On that same date, the United States filed this motion to dismiss.
I. Rule 12(b)(1)
Dismissal is appropriate under Rule 12(b)(1) when the district court lacks subject matter jurisdiction over the claim. Fed. R. Civ. P. 12(b)(1). Federal subject matter jurisdiction must exist at the time the action is commenced. Morongo Band of Mission Indians v. Cal. State Bd. of Equalization, 858 F.2d 1376, 1380 (9th Cir. 1988), cert. denied, 488 U.S. 1006 (1989). A Rule 12(b)(1) motion may either attack the sufficiency of the pleadings to establish federal jurisdiction, or allege an actual lack of jurisdiction which exists despite the formal sufficiency of the complaint. Thornhill Publ'g Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979); Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987).
Subject matter jurisdiction is a threshold issue which goes to the power of the court to hear the case. Therefore, a Rule 12(b)(1) challenge should be decided before other grounds for dismissal, because they will become moot if dismissal is granted. Alvares v. Erickson, 514 F.2d 156, 160 (9th Cir.), cert. denied, 423 U.S. 874 (1975).
A federal court is presumed to lack subject matter jurisdiction until the contrary affirmatively appears. Stock West, Inc. v. Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989). An action should not be dismissed for lack of subject matter jurisdiction without giving the plaintiff an opportunity to amend unless it is clear that the jurisdictional deficiency cannot be cured by amendment. May Dep't Store v. Graphic Process Co., 637 F.2d 1211, 1216 (9th Cir. 1980).
II. Rule 12(b)(6)
A motion to dismiss for failure to state a claim will be denied unless it is "clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Falkowski v. Imation Corp., 309 F.3d 1123, 1132 (9th Cir. 2002), citing Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002). A complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a). "Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required." Fed. R. Civ. P. 8(e). These rules "do not require a claimant to set out in detail the facts upon which he bases his claim. To the contrary, all the Rules require is 'a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds on which it rests." Conley v. Gibson, 355 U.S. 41, 47 (1957).
When granting a motion to dismiss, a court is generally required to grant a plaintiff leave to amend, even if no request to amend the pleading was made, unless amendment would be futile. Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 F.2d 242, 246-47 (9th Cir. 1990). In determining whether amendment would be futile, a court examines whether the complaint could be amended to cure the defect requiring dismissal "without contradicting any of the allegations of [the] original complaint." Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th Cir. 1990).
I. Subject Matter Jurisdiction
The United States argues that the Court lacks subject matter jurisdiction over Plaintiff's claims because Plaintiff failed to exhaust his administrative remedies under the Federal Tort Claims Act (FTCA). "Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit." Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475 (1994). However, the FTCA waives immunity for employees of the federal government, in civil complaints arising out of actions that are within the scope of their office or employment, "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b)(1). In order to bring such a lawsuit, a plaintiff must first file an administrative claim with the appropriate federal agency. 28 U.S.C. § 2675(a).
Here, the United States notes that Plaintiff has not alleged, nor has he provided any evidence, that he has filed an administrative complaint pursuant to the FTCA. Plaintiff, in response, challenges the section 2679(d) substitution of the United States for the Original Defendants. Specifically, Plaintiff argues (1) that Judge Ware is not an employee of a federal agency, as section 2679 requires, and (2) that section 2679 does not apply to civil actions against federal employees for constitutional torts.
First, under the FTCA, the term "federal agency" includes employees of both the legislative and judicial branches of government. 28 U.S.C. § 2671. Thus, the section 2679(d) substitution for Judge Ware by the United States was proper. Second, the United States argues that the gravamen of Plaintiff's claim against the Original Defendants in their individual capacities is that they stole his property. Indeed, Plaintiff, in both the FAC and in his opposition papers, repeatedly states that Defendants were stealing when they seized his belongings and sold them at auction. A claim for theft, notes the United States, is not claim for a violation of constitutional rights. The United States further maintains that Plaintiff has not stated a constitutional "taking" claim because Plaintiff has made no allegation that he was deprived of his due process rights when the government seized his property and sold it to satisfy the restitution judgment.
The gravamen of the FAC's allegations against the Original Defendants is that they stole his property. Such allegations are not constitutional tort claims; thus, these Defendants' substitution was proper. Plaintiff has failed, in his claims against the United States, to satisfy the FTCA's exhaustion requirement.
II. Judicial Immunity
The United States contends Judge Ware has judicial immunity from Plaintiff's claims. 28 U.S.C. § 2674 (the United States may assert any defense based upon judicial immunity that otherwise would have been available to the individual judicial officer whose actions gave rise to the claim). It is a well-established principle that judicial officers are immune from liability in civil lawsuits arising from actions taken in their official capacity as judges. See Bradley v. Fisher, 80 U.S. 335, 347 (1871). For such absolute immunity to apply, (1) the judge must not have been acting in clear absence of all jurisdiction, Bradley, 80 U.S. at 351, and (2) the actions must have been "judicial," or within the judge's "judicial capacity." Stump v. Sparkman, 435 U.S. 349, 362 (1978). Here, the FAC does not allege any cause of action arising from conduct that Judge Ware undertook outside of his capacity as a judge presiding over Plaintiff's criminal case. Thus, despite Plaintiff's contention that Judge Ware is not entitled to the protections afforded federal judges generally, it is clear that the actions of which Plaintiff complains were within Judge Ware's jurisdiction and were judicial in nature.
For the foregoing reasons, Judge Ware is entitled to judicial immunity from Plaintiff's claims.
III. Prosecutorial Immunity
The United States maintains that Singh, Reagin and Chang are entitled to prosecutorial immunity from the allegations in the FAC. Like judges and grand jurors, prosecutors acting within the scope of their duties are entitled to absolute immunity from civil claims, including constitutional tort claims. Imbler v. Pachtman, 424 U.S. 409, 422 (1976). That immunity extends to all actions that are part of "the performance of the traditional functions of an advocate." Dela Cruz v. Kauai County, 279 F.3d 1064, 1067 (9th Cir. 2002).
Here, although Plaintiff argues otherwise in his opposition papers, all of the FAC's allegations against Singh, Reagin and Chang arise from their actions prosecuting the criminal case against Plaintiff and securing the restitution judgment that resulted from the guilty verdict. Thus, Singh, Reagin and Chang are entitled to prosecutorial immunity from Plaintiff's claims.
IV. Heck v. Humphrey
The United States argues that, under Heck v. Humphrey, 512 U.S. 477 (1994), Plaintiff cannot state a claim arising out of his criminal conviction unless he first shows that the conviction has been overturned on appeal or otherwise invalidated. The United States notes that the Ninth Circuit has extended the Heck rule to Bivens claims. See Martin v. Sias, 88 F.3d 774, 775 (9th Cir. 1996). In his opposition papers, Plaintiff states that he is not attacking, either directly or indirectly, his criminal conviction. Thus, the United States' motion to dismiss the FAC to the extent that it states claims arising out of Plaintiff's criminal conviction is granted.
V. Statute of Limitations
The United States argues that Plaintiff's claims are barred by the applicable two-year statute of limitations because they arise out of conduct that allegedly took place in 1994 and 1995. However, while some of the FAC's causes of action arise from allegedly ongoing activity that includes the December 22, 2003 order denying Plaintiff's motion to quash the writ of execution and the March 13, 2004 sale of his property, the Court need not rule as to whether Plaintiff's claims are time-barred, because they must be dismissed on other grounds.
VI. Futility of Amendment
For the reasons stated above, the Court rules that amendment would be futile. Plaintiff could not, without contradicting the allegations in the FAC, remedy the deficiencies identified in this order. It is clear that the Court lacks subject matter jurisdiction over Plaintiff's claims against the United States, and that the Original Defendants are each entitled to immunity from claims stemming from Plaintiff's criminal prosecution and trial. Thus, the FAC's claims against the United States are dismissed with prejudice.
For the foregoing reasons, the motion to dismiss filed by the United States (Docket No. 24) is GRANTED. The FAC's claims against the United States are dismissed with prejudice.
To date, Plaintiff has not properly served the FAC on the remaining individual Defendants. Federal Rule of Civil Procedure 4(m) requires service of a complaint on a defendant within 120 days of the complaint's filing. If Plaintiff does not serve the remaining Defendants within thirty days of the date of this order, the Court will dismiss the FAC against those Defendants.
IT IS SO ORDERED.