Harrison v. Wheat
Filing
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ORDER granting 13 Defendant's Motion to Dismiss. Because Harrison failed to state a claim under § 1983 and Bivens, the Court GRANTS Wheat's motion to dismiss with prejudice. (Doc. No. 13-1.) The Court finds any amendment would be fu tile, as Harrison cannot overcome Wheat's prosecutorial immunity. Thus, the Court ORDERS the Court Clerk to close the case. Because the Court is dismissing Harrisons complaint, the Court FINDS AS MOOT Harrison's motion for service, in forma pauperis status, and scheduling order. (Doc. No. 10.) Moreover, the Court DENIES his request for counsel and DENIES AS MOOT his other hearing requests. (Doc. No. 21.). Signed by Judge Anthony J. Battaglia on 3/1/2018. (All non-registered users served via U.S. Mail Service)(acc)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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DAVID SCOTT HARRISON,
Case No.: 17-cv-2404-AJB-BLM
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ORDER GRANTING DEFENDANT’S
MOTION TO DISMISS (Doc. No. 13-1)
Plaintiff,
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v.
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ORDER ON OTHER
(Doc. Nos. 10, 21)
MICHAEL G. WHEAT, ASSISTANT US
ATTORNEY,
MOTIONS
Defendant.
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Before the Court is Michael G. Wheat’s motion to dismiss Davis Scott Harrison’s
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complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Doc. No. 13-
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1.) Having reviewed the parties’ arguments and controlling legal authority, and pursuant
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to Civil Local rule 7.1.d.1, the Court finds the matter suitable for decision on the papers
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and without oral argument. Accordingly, the March 22, 2018 motion hearing is vacated.
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Because Wheat is not a state actor and possesses prosecutorial immunity against Harrison’s
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failed Bivens claim, the Court GRANTS Wheat’s motion to dismiss.
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I.
BACKGROUND
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Harrison, a pro se litigant, brought this suit against Wheat. (Doc. No. 1-2.) On
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February 10, 2015, Harrison sent a “syrupy-sweet” letter to U.S. District Court Judge,
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Larry A. Burns, as well as Wheat. (Id. at 6.) Exercising his right to free speech, Harrison
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petitioned the government for redress of his grievances, namely the illegitimacy of his
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1988-’89 federal convictions. (Id.) The letter did not contain any threatening language nor
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an intent to commit violence or criminal harm. (Id.) Wheat describes this letter as arguing
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“that the Supreme Court’s Jones decision rendered his conviction null and void.”
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(Doc. No. 13-1 at 3.)
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On March 10, 2015, Wheat sent Harrison a “retaliatory” letter in response. (Id. at 7.)
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Harrison suggests that Wheat’s letter threatened retaliatory actions by reporting him to all
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“appropriate investigative agencies” for the purpose of “monitor[ing Harrison’s]
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activities.” (Id.) Harrison claims that this retaliatory language encased him in a “thick coat
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of ice” and left him fearful of being transferred to a more restrictive facility. (Id.) He
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contends that Wheat’s retaliation against him served no reasonable or legitimate
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penological or government interest. (Id. at 8.)
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II.
LEGAL STANDARDS
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A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of a plaintiff’s
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complaint. See Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). “[A] court may dismiss
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a complaint as a matter of law for (1) lack of cognizable legal theory or (2) insufficient
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facts under a cognizable legal claim.” SmileCare Dental Grp. v. Delta Dental Plan of Cal.,
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88 F.3d 780, 783 (9th Cir. 1996) (citation omitted). However, a complaint will survive a
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motion to dismiss if it contains “enough facts to state a claim to relief that is plausible on
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its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In making this
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determination, a court reviews the contents of the complaint, accepting all factual
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allegations as true and drawing all reasonable inferences in favor of the nonmoving party.
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See Cedars-Sinai Med. Ctr. v. Nat’l League of Postmasters of U.S., 497 F.3d 972, 975
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(9th Cir. 2007).
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Notwithstanding this deference, the reviewing court need not accept legal
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conclusions as true. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). It is also improper for
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a court to assume “the [plaintiff] can prove facts that [he or she] has not alleged.” Assoc.
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Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526
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(1983). However, “[w]hen there are well-pleaded factual allegations, a court should assume
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their veracity and then determine whether they plausibly give rise to an entitlement to
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relief.” Iqbal, 556 U.S. at 664.
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Additionally, pro se pleadings are held to “less stringent standards than formal
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pleadings drafted by lawyers” because pro se litigants are more prone to making errors in
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pleading than litigants represented by counsel. Hughes v. Rowe, 449 U.S. 5, 9 (1980)
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(internal quotations omitted). Thus, the Supreme Court has stated that federal courts should
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liberally construe the “‘inartful pleading’ of pro se litigants.” Eldridge v. Block, 832 F.2d
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1132, 1137 (9th Cir. 1987) (quoting Boag v. MacDougall, 454 U.S. 364, 365 (1982)).
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III.
DISCUSSION
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Harrison brings his complaint under Bivens for first amendment retaliation.
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(Doc. No. 1-2 at 5.) In a footnote, he states the claim is “[f]iled under the Civil Rights Act,
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42 USC § 1983, this case is technically a suit pursuant to Bivens . . . .” (Id. at fn 1.) Because
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Harrison is pro se, the Court construes his filings liberally and will discuss actions arising
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under both Bivens and § 1983—as they are separate vehicles to bring a suit in federal court.
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In his dismissal motion, Wheat argues the Court should dismiss Harrison’s Bivens claim
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because it fails to meet the two-prong test. Wheat also argues, nevertheless, he is entitled
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to prosecutorial immunity. Wheat does not address the § 1983 claim, however, the Court
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will do so sua sponte.
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1.
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Wheat argues a claim under Bivens is unwarranted for a First Amendment violation.
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(Doc. No. 13-1 at 4.) Wheat claims the Supreme Court has cautioned against expanding
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constitutional claims beyond the three scenarios found in Bivens and its progeny: Davis,
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and Carlson. (Id. at 6.) Therefore, because this case differs from the three previous
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Supreme Court Bivens cases, Wheat states that a Bivens remedy should not be granted. (Id.)
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Harrison agrees with Wheat in that the court in Ziglar cautioned against expanding
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constitutional claims. (Doc. No. 17 at 19.) However, Harrison argues that because Congress
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has not provided an alternative remedy and has not explicitly declared anything, that this
Harrison’s Request for a New Bivens Remedy
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Court has the power to grant him relief. (Id.) Additionally, by granting relief, Harrison
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claims that there are no special factors counseling hesitation against a judicially created
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remedy. (Id. at 22). Furthermore, Harrison claims that the cases Wheat used to support his
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claim are irrelevant because “they do not address the right of every individual to protection
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of the laws, whenever he suffers an injury.” (Id. at 21.)
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In Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, the Court
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established an implied private right of action for tortious deprivation of constitutional rights
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against federal officials in their personal capacity. 403 U.S. 388, 389 (1971). However, in
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more recent times, the Supreme Court has disfavored extending the Bivens remedy to new
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contexts not previously reached. Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017); Iqbal, 556
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U.S. at 675 (expanding the Bivens remedy beyond these three scenarios is a “disfavored”
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judicial activity); Corr. Services Corp. v. Malesko, 534 U.S. 61, 68 (2001) (stating the
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Supreme Court has “consistently refused to extend Bivens to any new context or new
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category of defendants.”).
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If a Bivens case is “different in a meaningful way” from one of the three established
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Bivens cases, it is considered a “new Bivens context.” Ziglar, 137 S. Ct. at 1859–60. The
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Ziglar court listed several ways a case could present as a “new Bivens context:”
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A case might differ in a meaningful way because of the rank of the officers
involved; the constitutional right at issue; the generality or specificity of the
official action; the extent of judicial guidance as to how an officer should
respond to the problem or emergency to be confronted; the statutory or other
legal mandate under which the officer was operating; the risk of disruptive
intrusion by the Judiciary into the functioning of other branches; or the
presence of potential special factors that previous Bivens cases did not
consider.
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Id. at 1860. When the court determines a case presents a “new Bivens context,” then a
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special factors analysis is performed. Id. at 1859–60. If there are “special factors
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counselling hesitation in the absence of affirmative action by Congress,” then a Bivens
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remedy will not be available. Id. at 1857 (quoting Bivens, 403 U.S. at 396)). “Though the
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Court has not defined the phrase ‘special factors counseling hesitation’ . . . ‘[t]he necessary
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inference . . . is that the inquiry must concentrate on whether the Judiciary is well suited,
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absent congressional action or instruction, to consider and weigh the costs and benefits of
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allowing a damages action to proceed.’” Jones v. Hernandez, Case No.: 16-CV-1986 W
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(WVG), 2017 WL 5194636, at *9 (S.D. Cal. Nov. 9, 2017) (quoting Ziglar, 137 S. Ct. at
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1857–58).
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Harrison’s cause of action for first amendment retaliation has been expressly
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recognized by the Ninth Circuit twice, but never by the Supreme Court. In Gibson v. United
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States, the Court stood with other circuits in allowing a first amendment retaliation claim
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to proceed when FBI agents allegedly curbed Gibson’s political protected speech “by
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investigating her, tapping her phone, passing defamatory information to her employer, and
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attempting to entrap her in a drug transaction.” Martin v. Naval Investigative Serv., 10-CV-
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1879 WQH (MDD), 2011 WL 13142108, at *7 (S.D. Cal. Aug. 3, 2011) (Hayes, J.), aff’d,
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539 Fed. Appx. 830, 832 (9th Cir. 2013); Gibson, 781 F.2d 1334, 1341–42 (9th Cir. 1986).
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In Martin, the plaintiff alleged a federal official acted with motive to impermissibly curb
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his truthful testimony. 2011 WL 13142108. Because the court found this was analogous to
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the facts in Gibson, Martin’s case did not present a new factual and legal context, and the
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court allowed the Bivens claim to continue. Id. at *8.
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Harrison’s case differs from both of these Ninth Circuit cases. Harrison’s letter
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requested “redress of his grievances, namely the illegitimacy of his 1988-’89 federal
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convictions.” (Doc. No. 1-2 at 6.) Wheat’s response—retaliatory or not—did not curb any
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protected political speech or truthful testimony as was the case in both Gibson and Martin.
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Moreover, Wheat’s letter did not rise to the levels of intrusion Gibson was subjected to.
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Although the complaint similarly alleges First Amendment Retaliation, the mechanism of
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injury (retaliation when a pro se inmate writes a prosecutor a letter challenging his prior
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conviction) presents a new Bivens context. To allow Harrison a Bivens remedy, then, the
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Court would need to weigh the “special factors counselling hesitation.” Wilkie v. Robbins,
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551 U.S. 537, 550 (2007). However, the Court need not begin that analysis because the
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Court holds, below, that Wheat is entitled to prosecutorial immunity. Thus, even if the
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Court found no “special factors counselling hesitation,” his claim would ultimately fail.
Wheat’s Prosecutorial Immunity Shields Him From Liability
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2.
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Wheat argues that absolute prosecutorial immunity protects his conduct.
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(Doc. No. 13-1 at 9.) Wheat claims that he was acting in his “role as advocate” for the
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United States when he sent the letter to Harrison. (Id.) Wheat argues that multiple cases
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have held that absolute immunity protects conduct that plaintiffs, like Harrison, perceived
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as threatening prosecution. (Id. at 10). Additionally, though prosecution of Harrison’s case
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ended long ago, Wheat claims that prosecutorial immunity was stretched far into the case
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and into its afterlife because of Harrison’s repeated habeas cases and other challenges
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Harrison brought after his case ended. (Id.)
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Harrison responds by stating that Wheat’s retaliatory letter was not part of initiating
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a prosecution or of presenting a criminal case, and so, is not protected by prosecutorial
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immunity. (Doc. No. 17 at 22.) Additionally, Harrison claims that the cases Wheat utilized
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to support his point that retaliatory letters are protected by absolute immunity have been
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misstated. (Id. at 24.) Harrison argues that prosecutorial immunity is denied to federal
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agents who send retaliatory letters. (Id. at 25).
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“Even in circumstances in which a Bivens remedy is generally available, an action
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under Bivens will be defeated if the defendant is immune from suit.” Hui v. Castaneda, 559
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U.S. 799, 807 (2010) (citing Bivens, 403 U.S. at 397–98). “Federal prosecutors enjoy
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absolute immunity for ‘initiating a prosecution and in presenting the State’s case. . . .’”
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Loumiet, 255 F. Supp. 3d at 91 (quoting Imbler v. Pachtman, 424 U.S. 409, 431 (1976)).
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Absolute immunity fully applies when the conduct at issue is “intimately associated with
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the judicial phase of the criminal process.” Van de Kamp v. Goldstein, 555 U.S. 335, 343–
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44 (2009) (quoting Imbler, 424 U.S. 409 at 430). Absolute immunity stretches far into a
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case and into its afterlife. Neville v. Classic Gardens, 141 F. Supp. 2d 1377, 1383 (S.D.
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Ga. 2001) (citing Allen v. Thompson, 815 F.2d 1433, 1434 (11th Cir. 1987)). “However,
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an act is not immune merely because it is performed by a prosecutor.” Loumiet, 255 F.
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Supp. 3d at 91. Absolute immunity may not apply when a prosecutor is not acting as an
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officer of the court, but is engaged in other tasks, such as investigative or administrative.
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Van de Kamp, 555 U.S. at 342. However, absolute immunity does apply when a prosecutor
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threatens further criminal prosecutions. Marx v. Gumbiner, 855 F.2d 783, 789 n.10 (11th
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Cir. 1988); see also Henzel v. Gerstein, 608 F.2d 654, 657 (5th Cir. 1979).
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First, Harrison claims that Wheat’s retaliatory letter, which included language
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threatening further criminal prosecutions, is not protected under absolute immunity.
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(Doc. No. 17 at 25–26.) Wheat, on the other hand, claims that his prosecutorial actions,
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done in the role as an advocate for the federal government, are protected under absolute
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immunity. (Doc. No. 13-1 at 9.) This Court agrees. The type of conduct Wheat was
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involved in, threatening further criminal prosecutions, is protected under absolute
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immunity. Marx, 855 F.2d at 789 n.10; see also Henzel, 608 F.2d at 657.
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Second, Harrison also claims that because Wheat’s letter was written so far removed
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from the judicial proceedings—roughly 30 years—he is not protected under the absolute
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immunity’s language of “intimately associated with the judicial phase of the criminal
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process.” (Doc. No. 17 at 23–24.) However, Wheat alleges that Harrison had extended the
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life of his 1988-‘89 criminal judicial proceedings “through his own actions, via repeated
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habeas cases and other challenges, as well as direct correspondence with the Court and the
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U.S. Attorney’s Office.” (Doc. No. 13-1 at 9.) Therefore, according to Wheat, Harrison
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had stretched the judicial proceeding to the letter’s date; and so, Wheat remains qualified
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for absolute prosecutorial immunity. (Id.) The Court finds reasonable that due to Harrison’s
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own actions, Wheat is still entitled to prosecutorial immunity. Moreover, absolute
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immunity reaches far after a case’s conclusion, well into its afterlife, and Harrison’s case
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enjoyed quite the afterlife. Neville, 141 F. Supp. 2d at 1383.
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Thus, because Harrison—by continuously filing challenges—had continued the
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judicial proceedings of the 1988-’89 case, Wheat’s letter was still intimately associated
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with the judicial phase. The Court finds prosecutorial immunity attaches to Wheat’s
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actions.
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3.
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Although it is not expressly clear that Harrison intended to bring a § 1983 claim, the
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Court is giving him every benefit of the doubt by liberally construing his complaint as such.
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A § 1983 cause of action entitles an injured person to money damages if a state official
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violates his or her constitutional rights. Ziglar, 137 S. Ct. at 1854. The statute specifically
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limits suits to officials of a state, territory, or the District of Columbia. It reads:
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Harrison Failed to Name an Appropriate Defendant Under § 1983
Every person who, under color of any statute, ordinance, regulation, custom,
or usage, of any State or Territory or the District of Columbia, subjects,
or causes to be subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to the party
injured in an action at law . . . .
42 U.S.C.A. § 1983 (emphasis added).
Here, Harrison brought a § 1983 cause of action against Wheat, who at the time was
acting in his capacity as an Assistant U.S. Attorney, a federal official. (Doc. No. 1-2 at 5.)
Harrison has not pled that at any time Wheat acted as a state official, or was acting in a
territory or the District of Columbia. Thus, to the extent a § 1983 claim was asserted in the
complaint, the Court finds it fails.
IV. OTHER MOTIONS
Harrison filed a motion requesting permission to appear at the March 22 hearing, for
counsel appointment, or to vacate the hearing. (Doc. No. 21.) Because the Court has
vacated the hearing, the Court DENIES AS MOOT his requests to attend the hearing or
vacate the hearing.
Harrison makes no argument in support of his counsel motion beyond the request
itself. (Doc. No. 21 at 5.) There is no constitutional right to counsel in a civil case. U.S. v.
30.64 Acres of Land, 795 F.2d 796, 801 (9th Cir. 1986). While this Court has discretion to
appoint counsel, it is only done in exceptional circumstances after weighing the plaintiff’s
ability to articulate his claim and the complexity of the issues at hand. 28 U.S.C. § 1915(d);
Mallard v. U.S. Dist. Court of Iowa, 490 U.S. 296, 301–08 (1989); Wilborn v. Escalderon,
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798 F.2d 1328, 1331 (9th Cir. 1986). Harrison has proven adept at litigating his case. His
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response to this dismissal motion, for example, included a table of contents, table of
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authorities, and nearly 20 pages of argument. (Doc. No. 17.) In this document, Harrison
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shows he is capable of legal analysis and proves he has a strong grasp of his case’s facts.
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(Id.) Moreover, the complexity of issues here does not rise to levels of exceptionality
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required for appointment of counsel. Thus, the Court DENIES Harrison’s counsel request.
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V.
CONCLUSION
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Because Harrison failed to state a claim under § 1983 and Bivens, the Court
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GRANTS Wheat’s motion to dismiss with prejudice. (Doc. No. 13-1.) The Court finds any
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amendment would be futile, as Harrison cannot overcome Wheat’s prosecutorial immunity.
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Thus, the Court ORDERS the Court Clerk to close the case.
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Because the Court is dismissing Harrison’s complaint, the Court FINDS AS MOOT
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Harrison’s motion for service, in forma pauperis status, and scheduling order.
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(Doc. No. 10.) Moreover, the Court DENIES his request for counsel and DENIES AS
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MOOT his other hearing requests. (Doc. No. 21.)
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IT IS SO ORDERED.
Dated: March 1, 2018
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