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.
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).
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 ...