ZHAO v. HOLDER et al

Filing 38

MEMORANDUM OPINION. Signed by Judge Emmet G. Sullivan on September 12, 2012. (lcegs2)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
________________________________
)
CHUN-YU ZHAO,
)
)
Plaintiff,
)
) Civil Action No. 11-0624 (EGS)
v.
)
)
ERIC HOLDER, JR. et al.,
)
)
Defendants.
)
)
MEMORANDUM OPINION
This case is before the Court on defendants’ Motion to
Dismiss the Amended Complaint.

Upon consideration of the

motion, the response and reply thereto, the entire record, and
for the reasons explained below, defendants’ motion is GRANTED.
I.

BACKGROUND
Plaintiff is a naturalized United States citizen who

previously operated a computer and networking equipment business
in Virginia called JDC Networking.

Am. Compl. ¶ 2.

Defendant

Eric Holder, Jr. (“Holder”) is the United States Attorney
General.

Id. ¶ 3.

Attorney General.

Defendant James Cole (“Cole”) is the Deputy
Id. ¶ 4.

Defendant Lanny Breuer is the

Assistant Attorney General for the Criminal Division.

Id. ¶ 5.

In July 2012, U.S. Immigration and Customs Enforcement
(“ICE”) intercepted a package of allegedly counterfeit equipment
labels addressed to “Kevin” at the address of a commercial

mailbox store where plaintiff rented a mailbox.

Am. Compl. ¶ 8.

Plaintiff alleges that the package did not bear a specific
mailbox number.

Id.

ICE agents then took the intercepted

package to the mailbox store and instructed the staff to call
plaintiff to tell her that she had received a package.
Plaintiff retrieved the package on July 22, 2010.

Id.

Id.

When plaintiff arrived at her home, ICE agents including
Special Agents Misty Price (“Price”) and Julie Hilario
(“Hilario”) entered her residence, searched her home, and began
interrogating her.

Am. Compl. ¶ 9.

During the course of Zhao’s

interrogation, Agent Hilario filled out a standard customs
consent-to-search form for Zhao’s storage unit at EZ Storage in
Chantilly, Virginia.

Id. ¶ 10.

Plaintiff states that the name

Chun Zhao is printed on the form and there is a signature below
the name.

Id.

Agents Price and Hilario signed the form as

witnesses to the signature.

Id.

On July 22, 2012, following the search of her residence and
her storage unit, plaintiff was arrested.

Am. Compl. ¶

14.

On

August 24, 2010, the United States Attorney’s Office for the
Eastern District of Virginia filed a multiple-count indictment
against Zhao for charges relating to the importation and sale of
improperly declared and/or counterfeit goods.
States v. Zhao, No. 10-cr-317 (E.D. Va.).

2

See id.; United

On September 28, 2010, Zhao filed several motions to
suppress, including a motion to suppress the property seized
from her storage.

Am. Compl. ¶ 15.

In the motion, plaintiff

argued that she did not consent to the search of the unit and
that she did not understand the form because she speaks limited
English..

Id.; see United States v. Zhao, No. 10-cr-317 (E.D.

Va.), ECF No. 36.

The government, in its response to

plaintiff’s motion, attached a copy of the signed form.

Am.

Compl. ¶ 15.
A hearing was held on plaintiff’s motion to suppress on
November 8, 2010 before the Honorable Gerald B. Lee.
Compl., Ex. A, ECF No. 1. 1

See

At the hearing, plaintiff’s counsel

argued that plaintiff signed the form without understanding what
it meant but stated several times that plaintiff had signed it.
Id. at 102.

Notably, plaintiff’s counsel did not argue that

plaintiff did not sign the form or that her signature had been
forged.

See id.

Agent Price testified that she personally saw

Zhao sign the consent-to-search form.

Am. Compl. ¶ 10.

The

Judge denied the motion to suppress and held that plaintiff
“sufficiently understood what the documents were when she signed

1

A full copy of the transcript of this hearing was attached as
Exhibit A to plaintiff’s initial Complaint. See ECF No. 1, Ex.
A. Upon filing her Amended Complaint, plaintiff attached only a
small portion of the transcript that contained none of the
colloquy regarding whether plaintiff had indeed signed the form.
See ECF No. 17, Ex. A.
3

them.

She signed them.

And it seems to me this was a consent

to search her EZ Storage unit.”

Id. at 107-08.

On March 30, 2011, five months after the motion to suppress
was filed, plaintiff’s counsel filed a motion to dismiss the
indictment alleging “extreme government misconduct.”

United

States v. Zhao, No. 10-cr-317 (E.D. Va.), ECF No. 110.

In that

motion, plaintiff argued that her signature had been forged and
she relied upon an analysis of the signature by an independent
expert, David Browne, who concluded that “there is very strong
evidence that the questioned ‘Chun Yu Zhao’ signature in the
Consent to Search form was not written by Chun Yu Zhao.”
On April 20, 2011, Judge Lee denied plaintiff’s motion.
United States v. Zhao, No. 10-cr-317 (E.D. Va.), ECF No. 127.
The Judge found that counsel had made several representations at
the suppression hearing that his client had signed the document.
United States v. Zhao, No. 10-cr-317 (E.D. Va.), ECF No. 164 at
79-80.

In view of those representations, the Judge declined to

revisit his ruling on the motion to suppress and declined to
dismiss the indictment.

Id.

Following a jury trial, plaintiff was found guilty of
sixteen counts related to the importation, sale, and trafficking
of counterfeit goods.

United States v. Zhao, No. 10-cr-317

(E.D. Va.), ECF No. 293.

She was sentenced on September 16,

2011 to sixty months’ imprisonment.
4

Id. at 3.

The case is

currently on appeal.

See United States v. Cone, No. 11-4888

(4th Cir.).
In this action, plaintiff seeks damages pursuant to Bivens
v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971).
Plaintiff argues in this case that the signature on the consent
to search her EZ Storage Unit was forged and that government
witnesses gave false testimony regarding the form.

Am. Compl. ¶

17.
Plaintiff states that she notified Breuer, through her
counsel, of the Browne Report on March 9, 2011.
18.

Am. Compl. ¶

Plaintiff, through counsel, also offered to make her expert

available to the Department of Justice (“DOJ”).

Id.

Plaintiff does not specify any of the details of these contacts
with Breuer or the DOJ and does not specify whether and how she
attempted to contact Holder or Cole.

The DOJ referred the

matter to the U.S. Attorney’s Office that had been responsible
for plaintiff’s case.

Id.

That office, plaintiff contends,

rejected the contents of the Browne report “out-of-hand.”

Id.

Plaintiff contends that Holder, Cole and Breuer violated her
Fifth Amendment Due Process rights by failing to investigate
plaintiff’s claim of misconduct.

Id. ¶ 22.

Defendants have moved to dismiss all claims pursuant to
Federal Rules of Civil Procedure 12(b)(1) through (6).
Defendants argue that they have not been properly served and
5

that venue is improper under 28 U.S.C. § 1391(b).

Defendants

also contend that plaintiff has failed to state a claim for
several reasons.

First, defendants argue that they are immune

to suit because they were acting in their role as public
officers.

Defendants also argue that plaintiff’s claims are

barred by the Supreme Court’s ruling in Heck v. Humphrey, 512
U.S. 477 (1994), which held that a plaintiff cannot pursue a
civil claim where the recovery on that claim would imply the
invalidity of a criminal conviction.

Finally, defendants argue

that plaintiff’s claim is barred by res judicata and collateral
estoppel because the issue was previously decided in plaintiff’s
criminal case.
II.

DISCUSSION

A motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) tests the legal sufficiency of a complaint.
v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).

Browning

A complaint

must contain “a short and plain statement of the claim showing
that the pleader is entitled to relief, in order to give the
defendant fair notice of what the ... claim is and the grounds
upon which it rests.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555 (2007) (internal quotation marks and citations omitted).
While detailed factual allegations are not necessary, plaintiff
must plead enough facts “to raise a right to relief above the
speculative level.”

Id.
6

When ruling on a Rule 12(b)(6) motion, the Court may
consider “the facts alleged in the complaint, documents attached
as exhibits or incorporated by reference in the complaint, and
matters about which the Court may take judicial notice.”
Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002).
The Court must construe the complaint liberally in plaintiff’s
favor and grant plaintiff the benefit of all reasonable
inferences deriving from the complaint.

Kowal v. MCI Commc’ns

Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).

However, the Court

must not accept plaintiff’s inferences that are “unsupported by
the facts set out in the complaint.”

Id.

“[O]nly a complaint

that states a plausible claim for relief survives a motion to
dismiss.”

Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

Plaintiff’s claims against the defendants must be dismissed
under Rule 12(b)(6) for failure to state a claim.

All three

defendants, acting in their respective official capacities,
enjoy qualified immunity against “liability for civil damages
insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person
should have known.”
(1982).

Harlow v. Fitzgerald, 457 U.S. 800, 818

To show that a government official is not protected by

qualified immunity, a plaintiff must show (1) that defendant’s
conduct violated the Constitution, and (2) that the
constitutional right that was violated was sufficiently
7

established such that a reasonable person would have known the
conduct violated the Constitution.

Pearson v. Callahan, 555

U.S. 223, 231 (2009).
Plaintiff argues that defendants are not entitled to
qualified immunity in light of their “failure to simply
investigate her scientifically substantiated claim of
misconduct.”
at 3.

Pl.’s Opp. to Defs.’ Mot. to Dismiss, ECF No. 35,

Plaintiff argues that defendants were constitutionally-

obligated to provide her with a response and an investigation of
her claims that her signature was forged and her property was
unlawfully seized from her storage unit.
The Court disagrees.

Id. at 9.

The right to require several high-

ranking officials at the Department of Justice to specifically
investigate plaintiff’s claims of forgery is not a right so
“sufficiently established” by law that a reasonable official
would have known a failure to do so violated the Constitution.
See Heckler v. Chaney, 470 U.S. 821, 828 (1985) (an agency’s
decision not to prosecute or enforce, whether through civil or
criminal process, is a decision generally committed to an
agency’s absolute discretion); see also Sieverding v. U.S. Dep’t
of Justice, 693 F. Supp. 2d 93, 110 (D.D.C. 2010) (“DOJ thus had
no obligation to pursue Ms. Sieverding’s allegations of criminal
behavior, and she cannot state a claim for relief based on her
allegations of a failure to subpoena or investigate.”).
8

Indeed,

several courts have found that an agency head’s failure to act
in the face of a plaintiff’s complaint is insufficient to
support a Bivens claim.

See Farmer v. Moritsugu, 163 F.3d 610,

614-15 (1998) (holding that Bureau of Prisons medical director
who failed to respond to specific complaints by prisoner was
protected by qualified immunity); see also Burke v. Lappin, 821
F. Supp. 2d 244, 248 (D.D.C. 2011) (declining to allow Bivens
claim to proceed against defendant prison officials who were
alleged to have been notified personally by defendant of his
complaints about the quality of kosher food in a prison). 2
Plaintiff’s claims are also barred by Heck v. Humphrey, 512
U.S. 477 (1994), which held that a plaintiff cannot pursue a
civil claim where the recovery on that claim would imply the
invalidity of a criminal conviction unless the plaintiff first
establishes that the conviction has been overturned.

The

holding of Humphreys has been extended to apply to Bivens
actions in this Circuit.
41 (D.C. Cir. 1996).

Williams v. Hill, 74 F.3d 1339, 1340-

Here, plaintiff has not established that

2

Although expressly disavowed by plaintiff in her opposition to
the motion to dismiss, the Court also notes that plaintiff
cannot proceed in a Bivens action on a claim of respondeat
superior. Simpkins v. District of Columbia Government, 108 F.3d
366, 369 (D.C. Cir. 1997). The complaint must allege that the
defendant federal official was personally involved in the
illegal conduct. Accordingly, to the extent plaintiff’s
complaint appears to allege a theory of respondeat superior on
behalf of the violations of other federal agents and
prosecutors, those allegations cannot survive a motion to
dismiss. See id.
9

the conviction has been overturned, nor has she sought and
obtained habeas relief.

Indeed, plaintiff’s case is currently

on appeal.
The Court finds the case of Aleotti v. Baars particularly
instructive.

896 F. Supp. 1 (D.D.C. 1995), aff’d, 107 F.3d 922

(D.C. Cir. 1996).

In that case, plaintiff had been convicted of

malicious destruction of property and brought a Section 1983
action against various witnesses, officers, and prosecutors
involved in his criminal case.

Id. at 3.

Plaintiff alleged,

inter alia, that the defendants conspired to entrap him, gave
false testimony, tampered with evidence, and maliciously
prosecuted him.

Id.

Following the reasoning of Heck, the court

first noted that plaintiff’s conviction had not been reversed,
expunged, declared invalid, or called into question.

Id. at 4.

The court next considered whether the plaintiff’s claims would
“necessarily imply the invalidity” of plaintiff’s conviction and
sentence. Id.

The court found that it was clear that

plaintiff’s claims would necessarily imply the invalidity of the
conviction, since they challenged the underlying evidence in the
case against him.

See id.

The court also noted that all of

plaintiff’s claims were “predicated on facts that existed and
were known at the time of or prior to Mr. Aleotti’s conviction
and should have been pursued at trial or on appeal . . . .”
at 4.
10

Id.

As in Aleotti, plaintiff seeks to challenge the evidence
underlying her conviction.

The consent-to-search form led, at

least in part, to the counterfeit products and labels used as
evidence to convict the plaintiff.

If the Court were to find in

favor of the plaintiff, the Court would have to find that the
consent-to-search form was invalid and that the underlying
evidence was obtained unlawfully.

Such a finding would

“necessarily imply” that plaintiff’s conviction was invalid.

As

in Aleotti, the Court notes that plaintiff’s counsel could have
argued – but did not – that plaintiff did not sign the form.
Instead, counsel argued that she signed the form without
understanding its significance because of her limited English
skills.

Even though the government had attached the consent-to-

search form to its opposition to the motion to suppress, counsel
did not raise the issue of a forged signature until nearly five
months after the court had denied the motion to suppress.
Accordingly, the Court finds that plaintiff’s claims are also
barred by Heck.
III. CONCLUSION
For the foregoing reasons, defendants’ motion to dismiss
plaintiff’s complaint is hereby GRANTED.

Because the Court

finds that the complaint should be dismissed on the grounds
stated herein, the Court need not reach the other issues raised

11

by defendants.

An appropriate Order accompanies this Memorandum

Opinion.
Signed:

Emmet G. Sullivan
United States District Judge
September 12, 2012

12