FOGLE v. WALTON-PRATT et al

Filing 8

MEMORANDUM OPINION re Plaintiff's 1 Complaint, 3 Motion for Injunctive Relief, and 4 Motion to Take Judicial Notice. Signed by Judge Trevor N. McFadden on 7/12/2018. (lctnm3)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JARED S. FOGLE, pro se,
Plaintiff,
v.

Case No. 1:18-cv-00697 (TNM)

TANYA WALTON-PRATT et al.,
Defendants.
MEMORANDUM OPINION
Plaintiff Jared S. Fogle, pro se, alleges that the judicial officers, prosecutors, and defense
attorneys involved in his criminal proceedings as well as the “Attorney General of the United
States, Obama Administration” committed various federal crimes, including obstruction of
justice under 18 U.S.C. § 1503 and violation of the Racketeer Influenced and Corrupt
Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq. Compl. 1, 3-4, ECF No. 1. He seeks $57
million in restitution. Id. 18 ¶ 3. Because this Court lacks subject matter jurisdiction with
respect to the judges, prosecutor, and Attorney General; and because Mr. Fogle has failed to state
a claim upon which relief can be granted with respect to his former defense attorneys, this case
will be dismissed. See 28 U.S.C. § 1915A (requiring a court to review “as soon as practicable
after docketing, a complaint in a civil action in which a prisoner seeks redress from a
governmental entity or officer of employee of a governmental entity” and dismiss it if the
complaint “is frivolous, malicious, or fails to state a claim upon which relief may be granted” or
“seeks monetary relief from a defendant who is immune from such relief.”; see also id.
§ 1915(e)(2). Mr. Fogle also filed a Motion for Injunctive Relief, requesting a court order that he

be allowed to continue communicating with his co-plaintiffs,1 and a Motion to Take Judicial
Notice that the United States failed to allege any “injury-in-fact” in his 2015 criminal
proceedings. Mot. for Inj. Relief, ECF No. 3; Mot. to Take Judicial Notice, ECF No. 4. Due to
the case’s dismissal, both motions will be denied as moot.
I.
In 2015, Mr. Fogle, represented by counsel, pled guilty to distributing and receiving, and
conspiring to distribute and receive, child pornography in violation of 18 U.S.C. § 2252(a)(2),
and attempting to travel to engage in illegal sexual conduct with a minor in violation of Sections
2423(b) and (e). United States v. Fogle, 825 F.3d 354, 356 (7th Cir. 2016); United States v.
Fogle, No. 1:15-cr-00159, 2015 WL 7253333 (S.D. Ind. Nov. 16, 2015). Mr. Fogle is currently
serving a 188-month sentence in Littleton, Colorado. Id.; Compl. 18. He now contends that the
judges, prosecutor, and defense attorneys involved in his criminal proceedings obstructed justice
and violated RICO in handling his case. See Compl. 1, 3. Although Mr. Fogle originally filed
suit with two other inmates, there is no common factual ground among the three cases, and only
Mr. Fogle’s claims are considered here. Mr. Fogle, a former spokesman for Subway, Inc.,
demands $57 million under 18 U.S.C. § 1964(c) as treble damages for reputational harm to his
professional business career. See Compl. 18.

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The Complaint is styled to include three plaintiffs, Mr. Fogle, James Nathan Fry, and Frank
Edwin Pate, all of whom are incarcerated and challenge aspects of their criminal proceedings,
but none of the factual allegations are common among them. See Compl. 4-7 (describing
Mr. Fogle’s allegations), id. at 8-9 (describing Mr. Fry’s allegations), id. at 10-14 (describing
Mr. Pate’s allegations). The plaintiffs explain that they “have filed this complaint jointly so as to
save time and the judicial resources.” Id. at 15. The three cases have been separated for
resolution. Mr. Fry’s case was dismissed on May 1, 2018. Order Dismissing Pro Se Case
Without Prejudice, Fry v. Kyle, No. 18-cv-00698 (D.D.C. 2018), ECF No. 8. Mr. Pate’s case is
pending. Pate v. Mazzant, No. 18-cv-00699 (D.D.C. 2018).
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II.
Federal Rule of Civil Procedure 8(a)(2) requires that a complaint contain “a short and
plain statement of the claim showing that the pleader is entitled to relief.” This requires the
complaint to contain sufficient factual allegations that, if true, “state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A complaint is
insufficient if it merely offers “‘labels and conclusions’” or “‘naked assertion[s]’ devoid of
‘further factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly,
550 U.S. at 555, 546). Rather, “[a] claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678. Plausibility “asks for more than a sheer possibility
that a defendant has acted unlawfully,” id., and pleading facts that are “merely consistent with” a
defendant’s liability “stops short of the line between possibility and plausibility.” Twombly, 550
U.S. at 545-46.
In evaluating the dismissal of a complaint for failure to state a claim, the Court must
construe the complaint in the light most favorable to the plaintiff and accept as true all
reasonable factual inferences drawn from well-pled factual allegations. See In re United Mine
Workers of Am. Emp. Benefit Plans Litig., 854 F. Supp. 914, 915 (D.D.C. 1994). Pro se
pleadings are to be liberally construed and “held to less stringent standards than formal pleadings
drafted by lawyers,” Haines v. Kerner, 404 U.S. 519, 520 (1972), but the Court does not accept
as true legal conclusions or “[t]hreadbare recitals of the elements of a cause of action, supported
by mere conclusory statements.” Iqbal, 556 U.S. at 678. Last, “[i]n determining whether a
complaint fails to state a claim, [the court] may consider only the facts alleged in the complaint,
any documents either attached to or incorporated in the complaint and matters of which [the

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court] may take judicial notice.” Hurd v. District of Columbia Gov’t, 864 F.3d 671, 678 (D.C.
Cir. 2017) (quoting EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir.
1997)).
A case may also be dismissed with respect to a defendant if that defendant is protected by
immunity. Immunity is “jurisdictional in nature,” meaning that the court lacks the ability to
enter judgment against an immune defendant. FDIC v. Meyer, 510 U.S. 471, 475 (1995).
Judges, prosecutors, and federal officials are immune from suits for civil damages for conduct
within the scope of their official capacities. Mitchell v. Forsyth, 472 U.S. 511, 520 (1985). The
doctrine of judicial immunity shields judges from lawsuits for money damages for actions that
are judicial in nature. Mireles v. Waco, 502 U.S. 9, 11 (1991); Sindram v. Suda, 986 F.2d 1459,
1460 (D.C. Cir. 1993). Prosecutors receive immunity for any actions taken in the judicial phase
of the criminal process. Gray v. Bell, 712 F.2d 490, 499 (D.C. Cir. 1983). Additionally, under
the doctrine of sovereign immunity, “the United States may not be sued without its consent” and
“the existence of consent is a prerequisite for jurisdiction.” United States v. Mitchell, 463 U.S.
206, 212 (1983). This immunity also applies to a federal official sued in their official capacity.
Clark v. Library of Congress, 750 F.2d 89, 103 (D.C. Cir. 1984); see also Kentucky v. Graham,
473 U.S. 159, 165-66 (1985).
III.
The doctrines of judicial, prosecutorial, and sovereign immunity bar Mr. Fogle’s claims
against the judicial officers, prosecutors, and former Attorney General of the United States.
Additionally, Mr. Fogle has also failed to state a claim with respect to his former defense
attorneys.

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A.
Mr. Fogle has sued four federal judges: two United States District Judges and two judges
on the United States Court of Appeals for the Seventh Circuit (the “Judicial Defendants”).
Compl. 1. Judge Walton-Pratt sentenced Mr. Fogle after his guilty plea, and Judges Flaum,
Manion, and Alonso (a district judge sitting by designation on Mr. Fogle’s appeal panel)
affirmed his sentence. Fogle, 825 F.3d at 355. Mr. Fogle alleges that the Judicial Defendants
obstructed justice and violated RICO by inducing his guilty plea, entering his conspiracy
conviction (which he claims is not actually a federal offense because it is not codified in 18
U.S.C. § 2252(a)(2)), affirming that conviction on appeal, scheming to defraud his corporation,
Jared Fogle, Inc., of its assets, causing him to transmit wire communications across state lines to
his attorneys in order to secure a wire fraud conviction, and altering the content of the attorneys’
arguments in judicial proceedings. Compl. 5-6 ¶¶ 3-7, 7 ¶ 9.
The doctrine of judicial immunity protects judges from “suits for money damages for all
actions taken in the judge’s judicial capacity, unless these actions are taken in the complete
absence of all jurisdiction.” Sindram, 986 F.2d at 1460. RICO actions against judges are barred
by judicial immunity “if they simply constitute another way of attacking a judge's rulings” and
where “the RICO-challenged acts are judicial in nature.” Thomas v. Wilkens, 61 F. Supp. 3d 13,
20 (D.D.C. 2014) (internal quotation marks omitted). Asserting that a judge acted in furtherance
of conspiracy or corruption does not make a judicial act “less judicial.” Id.
The Judicial Defendants acted within their judicial capacity with respect to Mr. Fogle and
therefore are protected by judicial immunity. All of the allegations that Mr. Fogle levels against
the Judicial Defendants occurred while the judges were performing acts that are judicial in
nature. See, e.g., Compl. 5 ¶ 5 (alleging that the judges affirmed his conviction). Mr. Fogle does

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not allege a single instance when a judicial officer acted outside the scope of the judicial role to
attempt to “obstruct justice.” See Compl. 5-7. Furthermore, Mr. Fogle’s allegation that the
Judicial Defendants invented a conspiracy offense to charge him with is inaccurate as a matter of
law. See Compl. 5 ¶ 2 (calling the conspiracy charge “illegal”). While 18 U.S.C. § 2552(a)(2)
does not codify a conspiracy offense, 18 U.S.C. § 371 makes it an offense for two or more
persons to conspire to commit any federal offense, including distribution and receipt of child
pornography under Section 2552(a)(2). See United States v. McGarity, 669 F.3d 1218, 1251
(11th Cir. 2012). Additionally, in Heck v. Humphrey, the Supreme Court held that an individual
seeking damages for “harm caused by actions whose unlawfulness would render a conviction or
sentence invalid” must “prove that the conviction or sentence has been reversed on direct appeal,
expunged by executive order, . . . or called into question by a federal court’s issuance of a writ of
habeas corpus.” 512 U.S. 477, 486-87 (1994); see also Williams v. Hill, 74 F.3d 1339, 1430-41
(D.C. Cir. 1996) (applying Heck to Bivens actions). Because Mr. Fogle has not alleged that his
conviction was set aside, he cannot recover damages for the actions of those who allegedly
brought about his conviction. Therefore, Mr. Fogle’s claims with respect to the Judicial
Defendants will be dismissed.
B.
Mr. Fogle alleges that the Assistant United States Attorney who prosecuted him, Steven
DeBrota, also obstructed justice and violated RICO. Mr. Fogle asserts that AUSA DeBrota
fabricated an illegal conspiracy charge against him (already discussed and dispelled above),
defrauded him in order to gain access to the assets of Jared Fogle, Inc., caused Mr. Fogle to send
emails across state lines to his attorneys in order to induce him to commit wire fraud, induced a
guilty plea by coercion, and knowingly allowed Judge Walton-Pratt to enter findings that altered
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the content of the attorneys’ arguments in his proceedings. Compl. 5 ¶¶ 2-4, 7 ¶ 9.
Prosecutorial immunity protects AUSA DeBrota from suits for money damages. A
prosecutor is entitled to “absolute immunity” when he acts as an advocate, “that is, in his role as
a participant in the judicial phase of the criminal process.” Gray, 712 F.2d at 499. Mr. Fogle
alleges no facts to support that AUSA DeBrota was acting outside of the scope of his
prosecutorial role; he only makes threadbare legal conclusions that AUSA DeBrota acted with a
corrupt intent. See, e.g., Compl. 5 ¶¶ 3-4 (“Defendant DEBROTA, did in fact, create an ‘artifice
and scheme to defraud’ for the purpose of obtaining an illegal conviction(s) against FOGLE, for
the purpose of gaining unlawful access to assets of the Jared Fogle, INC. Florida
Corporation, . . . as such, DEBROTAS charge shows ‘specific intent’ to defraud FOGLE”).
Mr. Fogle’s conclusory allegations do not support a charge that AUSA DeBrota acted outside his
legitimate authority to pursue criminal charges, and Mr. Fogle’s action against AUSA DeBrota is
also barred by Heck v. Humphrey. Therefore, the claim against AUSA DeBrota will be
dismissed.
C.
Mr. Fogle also filed suit against two out of the three attorneys who represented him in his
criminal proceedings in 2015. Compl. 1; United States v. Fogle, No. 1:15-cr-00159, 2015 WL
7253333 (S.D. Ind. Nov. 16, 2015). Mr. Fogle contends that they “violated their ethical duties”
by failing to request the search warrant or the affidavit supporting the application for the warrant
authorizing the search of Mr. Fogle’s home, failing to correct the prosecution’s leveling of a

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conspiracy charge2 and encouraging Mr. Fogle to plead guilty to it, and failing to ensure
Mr. Fogle’s restitution was not paid to unharmed parties. Compl. 6-7.
Mr. Fogle fails to make a substantive argument that his former attorneys obstructed
justice or violated RICO. Obstruction of justice requires “an intent to influence judicial or grand
jury proceedings” and that the accused take action that has the “natural and probable effect of
interfering with the due administration of justice.” United States v. Aguilar, 515 U.S. 593, 599
(1995). Mr. Fogle has established no factual basis for his former attorneys having an intent to
influence judicial proceedings or to interfere with the “due administration of justice.” Id. He
simply labels their actions as “reek[ing] of intent to corrupt a judicial process” and cites to the
obstruction of justice statute. Compl. 7. Furthermore, to be liable under RICO, a defendant must
have directed an enterprise to commit a pattern of fraudulent activity. Reves v. Ernst & Young,
507 U.S. 170, 179 (1993). Mr. Fogle makes no reference to any enterprise through which the
attorneys might have been conducting their affairs. See generally Compl. 6-7.
The allegations Mr. Fogle makes regarding corruption or obstruction of justice are legal
conclusions without any support based on the facts that he has alleged. See id.; Twombly, 550
U.S. at 555 (explaining that “a plaintiff's obligation to provide the ‘grounds’ of his ‘entitle[ment]
to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of
a cause of action will not do”). Mr. Fogle’s complaint against his former attorneys, assuming the
truth of the factual allegations made, appears at most to be a mere disagreement over trial
strategy. See Strickland v. Washington, 466 U.S. 668, 689 (1984)). On the facts as alleged, there

2

As already described above in Section III.A., the conspiracy charge is a legitimate criminal
offense.
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is no factual basis for an obstruction of justice or RICO claim. Therefore, the claims against
Messrs. Margolis and DeVooght will be dismissed.
D.
Mr. Fogle has also filed suit against the “Attorney General of the United States, Obama
Administration.” Compl. 1, 14-15. Mr. Fogle has not named a specific holder of that office
other than to name the office itself. See generally id. Under the doctrine of sovereign immunity,
the United States cannot be sued unless the government consents to the lawsuit. Mitchell, 463
U.S. at 212. Furthermore, sovereign immunity bars suits for money damages against officials
acting in their official capacity. Clark, 750 F.2d at 103. Mr. Fogle has not argued that the
Attorney General waived his entitlement to sovereign immunity or acted outside of his official
capacity. See generally Compl. 14-15. On the contrary, his allegations indicate that he is suing
the Attorney General merely because inferior officers have allegedly violated the law, which
means that the only plausible basis for the Attorney General’s liability are actions undertaken in
his official capacity. Compl. 15. Since Mr. Fogle has failed to establish that sovereign immunity
was waived here or that the Attorney General acted outside of his official capacity, the claims
against him will be dismissed.

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