Topping v. Cohen et al
OPINION AND ORDER granting 73 Defendant Assistant United States Attorney Kyle Cohen's Motion to Dismiss; denying as moot 74 Plaintiff's Motion for Summary Judgment; denying as moot 76 Defendants Charlotte Mason, Diane Spadoni, Jacq uenette Thompson, and Natasha Varnovitsky's Motion to Dismiss; granting 77 Defendants Charlotte Mason, Diane Spadoni, Jacquenette Thompson, and Natasha Varnovitsky's Amended Motion to Dismiss; denying as moot 78 Federal Defendants' Motion for Miscellaneous Relief; denying 82 Plaintiff's Motion for Sanctions; granting 85 Defendants Scott Owczarek, Teresa Gulick, and Nicole Rovig's Motion to Dismiss. Plaintiff's Third Amended Complaint is dismissed with prejudice. The Clerk shall enter judgment accordingly, terminate all pending motions and deadlines as moot, and close the file. See Opinion and Order for details. Signed by Judge John E. Steele on 5/19/2015. (MAB)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
DALE J. TOPPING,
Case No: 2:14-cv-146-FtM-29DNF
KYLE COHEN, CHARLOTTE MASON,
VARNOVITSKY, JOHN DOES, and
affiliated with the U.S.
JACQUENETTE THOMPSON, TERESA
GULICK, and NICOLE ROVIG,
OPINION AND ORDER
This matter comes before the Court on review of the following
Defendant Assistant United States Attorney Kyle Cohen’s
Motion to Dismiss (Doc. #73); plaintiff’s Motion for Summary
Judgment (Doc. #74); defendants Charlotte Mason, Diane Spadoni,
Jacquenette Thompson, and Natasha Varnovitsky’s Motion to Dismiss
(Doc. #76); defendants Charlotte Mason, Diane Spadoni, Jacquenette
Thompson, and Natasha Varnovitsky’s Amended Motion to Dismiss
(Doc. #77); Federal Defendants’ Motion for Miscellaneous Relief
Motion to Dismiss (Doc. #85).
Plaintiff filed Responses (Doc.
#79; Doc. #80; Doc. #81; Doc. #84; Doc. #87), defendants filed
Responses (Doc. #83; Doc. # 88), and plaintiff filed a Reply (Doc.
Under Federal Rule of Civil Procedure 8(a)(2), 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)(2).
This obligation “requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
To survive dismissal, the factual allegations
must be “plausible” and “must be enough to raise a right to relief
above the speculative level.”
Id. at 555.
See also Edwards v.
Prime Inc., 602 F.3d 1276, 1291 (11th Cir. 2010).
In deciding a Rule 12(b)(6) motion to dismiss, the Court must
accept all factual allegations in a complaint as true and take
them in the light most favorable to plaintiff, Erickson v. Pardus,
551 U.S. 89 (2007), but “[l]egal conclusions without adequate
factual support are entitled to no assumption of truth,”
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.”
Iqbal, 556 U.S. at 678.
“Factual allegations that are merely
Chaparro v. Carnival Corp., 693 F.3d 1333,
1337 (11th Cir. 2012) (internal quotation marks and citations
Thus, the Court engages in a two-step approach: “When
there are well-pleaded factual allegations, a court should assume
their veracity and then determine whether they plausibly give rise
to an entitlement to relief.”
Iqbal, 556 U.S. at 679.
Contrary to defendant Kyle Cohen’s motion (Doc. #73, p. 4),
“no heightened pleading rule requires plaintiffs seeking damages
for violations of constitutional rights to invoke § 1983 expressly
in order to state a claim.”
Johnson v. City of Shelby, Miss., 135
S. Ct. 346, 346-47 (2014) (citing Leatherman v. Tarrant Cnty.
Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 164
(1993) (a federal court may not apply a standard “more stringent
than the usual pleading requirements of Rule 8(a)” in “civil rights
N.A., 534 U.S. 506, 512 (2002) (imposing a “heightened pleading
standard in employment discrimination cases conflicts with Federal
Rule of Civil Procedure 8(a)(2).”).
This is plaintiff’s third federal lawsuit in Florida in
connection with claims that various defendants violated his rights
in connection with efforts to collect a disputed student loan
Plaintiff filed the first case, Topping v. United States Department
of Education, Case. No. 2:09-cv-396-FTM-29DNF, on June 9, 2009.
On February 8, 2012, the district court dismissed the case, and on
February 22, 2013, the Eleventh Circuit Court of Appeals affirmed
Topping v. United States Dep’t of Educ., 510 F.
App’x 816 (11th Cir. 2013). The United States Supreme Court denied
certiorari on October 15, 2013.
Topping v. Dep’t of Educ., 134 S.
Ct. 432 (2013).
During the pendency of the appeal, plaintiff initiated an
action against the United States pursuant to the Federal Tort
Claims Act (FTCA).
Topping v. United States, Case No. 2:12-cv-
524-FTM-99SPC (M.D. Fla. Sept. 20, 2012).
Plaintiff’s FTCA action
was dismissed as frivolous, and the dismissal was affirmed on
Topping v. United States, Case No. 2:12-cv-524-FTM-99SPC,
Plaintiff initiated this third action on March 17, 2014, by
employed by or affiliated with the United States Department of
Education, and the United States Department of Education.
Plaintiff’s Third Amended Complaint, filed October 9, 2014,
asserts the following claims: (I) deprivation of rights under 42
U.S.C. § 1983 against defendants Gulick, Rovig, and Owczarek; (II)
violation of the federal civil Racketeer Influenced and Corrupt
Organizations Act (RICO), 18 U.S.C. § 1961, against defendants
Cohen, Mason, Owczarek, Spadoni, Thompson, and Varnovitsky; and
The claims are asserted against the defendants in
both their individual and official capacities. 2
(Doc. #70, ¶ 3.)
summarized as follows:
John Does are named as parties in the Third Amended
Complaint, no claims are alleged against them.
The Court will
therefore dismiss these defendants from this action.
is well established that “[o]fficial capacity claims are
tantamount to a suit against the governmental entity involved.”
Jones v. Cannon, 174 F.3d 1271, 1293 n.15 (11th Cir. 1999). See
also Kentucky v. Graham, 473 U.S. 159, 166 (1985) (official
capacity suits represent another way of pleading an action against
an entity of which the officer is an agent and shall be treated as
a suit against the entity). As such, plaintiff’s official capacity
claims will be treated as claims filed against either the United
States Department of Education or the Michigan Department of
plaintiff) took out a student loan in the amount of $2662.00 to
fund his undergraduate studies at MSU.
After plaintiff withdrew
from school due to an administrative error, the loan was refunded
to the lender.
(Doc. #70, ¶ 15.)
Despite the fact that the 1982 loan had been refunded, Topping
received a billing statement in April 1986 listing that loan. (Id.
Plaintiff contacted the servicer of the loan, Wachovia
Services, to inform them that the loan had been refunded.
Wachovia acknowledged the error and returned the loan to the
Michigan Guaranty Agency (MGA) for investigation and resolution.
(Id. ¶ 17.)
Topping made monthly, on-time payments on his other student
loans, beginning in June 1986 and ending with the final payment in
April of 1991.
(Id. ¶ 19.)
The first seven payments, however,
were not accounted for by the MGA, causing plaintiff to make six
(Id. ¶ 20.)
conference with an Assistant Attorney General for the State of
Michigan and George Lamb (Lamb) of the Michigan Department of
Education regarding false credit reporting, accounting errors, and
failure to acknowledge the refunded loan.
(Id. ¶ 21.)
meeting, plaintiff provided all of his documentation relating to
the disputed student loan.
(Id. ¶ 22.)
Plaintiff asserts it was
agreed that plaintiff owed nothing, and Lamb stated that he would
correct any errors.
Approximately ten days later, however,
Department of Education had decided to litigate the matter.
On or about October 7, 1993, plaintiff received a letter from
the MGA stating that the United States Department of Education
(DOE) held a claim against him for a defaulted loan, although no
specific loan was identified.
(Id. ¶ 24.)
hearing, but never received a response.
Plaintiff responded to
(Id. ¶¶ 23-26.)
In January 1996, plaintiff began receiving letters from the
DOE regarding the defaulted loan.
Plaintiff spoke with a DOE
employee on several occasions, and again requested a hearing. (Id.
On August 28, 1996, plaintiff received a letter from the
DOE stating that his request for a hearing had been granted;
plaintiff as “Toppina” rather than “Topping.” No corrected hearing
notice was ever sent to plaintiff, and despite plaintiff’s numerous
requests, a hearing was never held.
(Id. ¶¶ 28-29.)
In November 1996, plaintiff contacted his congresswoman to
investigate these events.
(Id. ¶ 30.)
Defendant Diane Spadoni
(Spadoni), an employee of the DOE, was ultimately assigned to
resolve the matter.
(Id. ¶ 33.)
Topping contends that Spadoni
received but refused to evaluate documentation that demonstrated
he did not owe the MSU loan, that he did not complete that spring
term at MSU, and that the unpaid account was clear.
(Id. ¶¶ 34-
On or about March 27, 2002, plaintiff received a letter from
NCO Systems, a contractor for the DOE, stating that it intended to
collect the debt for which the DOE had received a judgment.
Plaintiff sent NCO Systems several letters demanding a
copy of the “judgment,” but one was never provided.
(Id. ¶ 40.)
In September 2002, plaintiff sent the DOE a certified letter
regarding the letter he received from NCO Systems, and once again
requested a hearing.
(Id. ¶ 41.)
Instead of being scheduled for a hearing, on or about November
13, 2002, plaintiff received a garnishment hearing decision from
the DOE’s office in Atlanta, Georgia.
(Id. ¶ 42.) The DOE,
however, had failed to inform plaintiff that such a hearing would
(Id. ¶ 42.)
Topping alleges that in a January 2003
telephone conversation, the DOE could not explain why his requests
for a hearing were not in the DOE records.
(Id. ¶ 43.)
From 2002 until 2009, plaintiff received notices from various
collection agencies regarding his student loan.
After receipt of
each notice, plaintiff sent each agency a certified letter stating
that he had never been afforded a proper hearing, but received no
(Id. ¶ 44.)
Plaintiff suffered permanent back injuries in a car crash in
Administration in June 2009.
(Id. ¶ 45.)
In or about June 2009, plaintiff discovered that 15% of his
disability payment was being administratively offset by the DOE
and that his income tax refund had been seized by the DOE.
Topping had received no prior notice of such actions.
(Id. ¶ 46.)
On June 19, 2009, plaintiff initiated his first civil
action in this Court against the DOE and the Michigan Higher
See Topping v. United States Dep’t of Educ.,
Case No. 2:09-cv-396-FTM-29DNF (M.D. Fla. June 19, 2009).
Topping suffered serious health emergencies in August and
September 2009, which left permanent brain damage, resulting in
memory loss and aphasia.
(Id. ¶ 47.)
On about November 8, 2009, plaintiff received a letter from
defendant Jacquenette Thompson (Thompson), an employee of the DOE.
The letter stated that it was sent in response to plaintiff’s
request for a garnishment hearing and indicated that a hearing
would be held by telephone on November 25, 2009. Plaintiff asserts
that he did not request this hearing.
(Id. ¶¶ 48-49.)
On November 25, 2009, Thompson and defendant Charlotte Mason
(Mason) called plaintiff and conducted the hearing telephonically.
(Id. ¶ 53.)
Topping offered to provide the documents previously
given to others concerning the matter.
(Id. ¶ 54.)
Mason stated that the DOE records indicated that plaintiff had
never shown up for the 2002 hearing.
(Id. ¶ 55.)
After the call,
plaintiff sent Thompson and Mason his documentation, and verified
via e-mail that the documents had been received.
(Id. ¶¶ 56-60.)
In March 2010, plaintiff received a “Garnishment Hearing
determined that plaintiff owed a balance of $7800.91 in principal
(Id. ¶ 62.)
The decision stated in pertinent part
that “MSU and Department records indicate that you attended for a
long enough length of time that no tuition refund from the school
was to be paid to your loan holder.”
The decision listed in an
plaintiff could seek reconsideration of the decision.
then amended his first lawsuit to include Thompson and Mason as
defendants, alleging that someone at the DOE had altered his
(Id. ¶ 63.)
Bases for Current Claims
On January 26, 2010, defendant Scott Owczarek (Owczarek),
then an assistant to the Registrar at MSU (Doc. #70, ¶ 9), wrote
a letter “To Whom It May Concern,” stating in pertinent part:
“This is to certify that Dale J. Topping was registered as a fulltime student at Michigan State University for the Spring 1982 term
We show grades were issued for all courses
therefore assume he was enrolled the entire semester.”
The letter was prepared in response to a request from
defendant Natasha Varnovitsky (Varnovitsky), a licensed attorney
and independent contractor working with the DOE (id. ¶ 13), and
was faxed to Varnovitsky by defendant Teresa Gulick (Gulick) (id.
¶ 66), a staff employee of the MSU Registrar’s Office (id. ¶ 7).
Plaintiff, believing that the content in the letter was
fabricated, requested a verification from defendant Nicole Rovig
(Rovig), the Registrar at MSU.
(Id. ¶ 67.)
Rovig responded on
January 7, 2011, with a letter stating that the Office of the
Registrar had no record of Owczarek’s letter, the language used
within the letter was inconsistent with the standard language used
discrepancies within the document that called the authenticity of
the letter into question.
(Doc. #1-1, p. 29; Doc. #70, ¶ 68.) 3
Plaintiff filed the letter with the Court in plaintiff’s first
(Doc. #70, ¶ 70.)
(Cohen), the Assistant United States Attorney representing the DOE
summary of the letter at paragraph 68 is not
accurate, but the letter is part of the pleading and/or motion and
speaks for itself. Lawrence v. United States, 597 F. App’x 599,
602 (11th Cir. 2015).
and its employees in Case No. 2:09-cv-396-FTM-29DNF (id. ¶ 6),
contacted Rovig to get an explanation for the discrepancy between
Owczarek’s letter and Rovig’s letter (id. ¶¶ 67, 71).
13, 2011, Rovig authored a Memorandum which confirmed that the
Owczarek letter provided by the Office of the Registrar on January
26, 2010, was authentic.
(Doc. #1-1, p. 30.)
enrollment at MSU during the spring 1982 term, and asked whether
he attended for the entire term.
Since the Office of the Registrar
had no such attendance records for that time period, it was unable
to confirm Topping’s attendance.
Varnovitsky then asked that MSU
include a statement indicating that plaintiff was enrolled for the
entire term, prompting the following sentence in the January 26,
2010 letter: “We show grades were issued for all courses therefore
assume he was enrolled the entire semester.”
As to the
authenticity of the letter, the memorandum stated that the letter
was printed on old letterhead as a result of an administrative
oversight, but was authentic.
Cohen subsequently filed
Rovig’s memorandum in Case No. 2:09-cv-396-FTM-29DNF.
(Id. ¶ 74.)
Plaintiff once again contacted Rovig and suggested that it
may be appropriate for someone at MSU to state the truth.
73 of plaintiff’s Third Amended Complaint is not
an accurate summary of the letter, but the letter speaks for
On January 19, 2011, Robert Noto (Noto), the Director of
MSU’s Office of the General Counsel, provided plaintiff with a
letter explaining the circumstances surrounding the January 26,
(Id. ¶¶ 76-77.)
Specifically, Noto stated that
Varnovitsky coerced and intimidated Owczarek into making false
consistent with plaintiff’s position. 5
(Doc. #1-1, p. 31.)
Plaintiff asserts that Thompson had colluded with Varnovitsky
prior to sending plaintiff the Garnishment Hearing Decision (Doc.
#70, ¶¶ 78-79), and had considered “secret evidence” in connection
with the garnishment hearing (id. ¶ 66).
Plaintiff alleges that
as a result of the false statements by the three MSU employees,
his property, i.e., his tax refunds and Social Security Disability
Income (SSDI) benefits, were unlawfully seized in 2009 by United
States Treasury administrative offsets under the Debt Collection
Act of 1982, 31 U.S.C. § 3701 et. seq., and was repeatedly seized
in 2013 and 2014 in violation of the Debt Collection Act.
Plaintiff seeks more than $1 million in damages.
(Id. ¶ 3.)
Amended Complaint for various reasons.
Plaintiff opposes all
motions to dismiss.
dispute the authenticity of the Noto letter.
Count I, read liberally, alleges that plaintiff was deprived
of his constitutional right to procedural due process in connection
with the offset of his property in 2009 and the garnishment hearing
held on November 25, 2009, which has resulted in continued unlawful
takings of his social security benefits.
Plaintiff asserts that
three MSU employees - Owczarek, Gulick, and Rovig - knowingly and
willfully assisted Varnovitsky by providing false information as
to his attendance at MSU in February 1982, and that the false
information was used in the garnishment hearing and tainted the
findings of fact in the garnishment decision.
The basis for this
count as to Owczarek is the January 26, 2010 letter he authored;
as to Gulick, the basis is that she placed Owczarek’s signature on
the letter and faxed the January 26, 2010 letter to the DOE; and
the basis of this count as it applies to Rovig is the January 2011
letter and Memorandum regarding plaintiff’s enrollment at MSU in
Owczarek, Gulick, and Rovig contend that Count I should be
dismissed with prejudice because (1) plaintiff has failed to
sufficiently state a claim upon which relief may be granted; (2)
they are shielded by qualified immunity; and (3) the claims are
untimely under the applicable statutes of limitations.
argues to the contrary.
The Court agrees with defendants’ first
argument, and therefore need not address the latter two.
To state a claim under 42 U.S.C. § 1983, a plaintiff must
allege (1) that the defendant deprived the plaintiff of a right
secured under the United States Constitution or federal law 6 and
(2) that such deprivation occurred under color of state law.”
Arrington v. Cobb Cnty., 139 F.3d 865, 872 (11th Cir. 1998).
Plaintiff must also allege a causal connection between defendants’
conduct and the deprivation of his constitutional right.
City of Wadley, Ala., 51 F.2d 988, 999 (11th Cir. 1995).
a § 1983 claim for the denial of procedural due process, a
plaintiff must allege (1) a deprivation of a constitutionally
protected property or liberty interest; (2) state action; (3) and
constitutionally inadequate process.
J.R. v. Hansen, 736 F.3d
959, 965 (11th Cir. 2013); Miccosukee Tribe of Indians v. United
States, 716 F.3d 535, 559 (11th Cir. 2013).
As a general matter,
due process requires notice and an opportunity to be heard before
a person may be deprived of property.
Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532, 542 (1985); Gilbert v. Homar, 520 U.S.
924, 929 (1997).
support of his claim under § 1983, plaintiff cites to
numerous provisions of Florida law that were allegedly violated by
Owczarek, Gulick, and Rovig. (Doc. #70, pp. 26-27.) Violations
of state law, however, cannot serve as the basis for a claim
brought under § 1983. See Skinner v. City of Miami, Fla., 62 F.3d
344, 347 (11th Cir. 1995) (a cause of action filed pursuant to §
1983 cannot seek to vindicate state law rights, but only “a right
secured by federal law”).
There can be no § 1983 claim upon which relief against the
three MSU employees may be granted to the extent plaintiff asserts
a violation of procedural due process by the offsets in 2009.
correspondences at issue were not created until January 2010 and
January 2011, and therefore could not have been a cause of any
action taken by the DOE which resulted in plaintiff’s property
being seized by offset in 2009.
The portion of Count I of the
Third Amended Complaint alleging a violation based on conduct
occurring before January 26, 2010, is dismissed with prejudice.
Similarly, the January 7, 2011 Memorandum authored by Rovig
could not have been a basis for any due process violation resulting
in the seizure of plaintiff’s social security benefits.
hearing decision was dated March 18, 2010, long before the Rovig
Memorandum even existed.
The portion of Count I of the Third
Amended Complaint alleging a violation based on Rovig’s January 7,
2011 Memorandum is dismissed with prejudice.
Assuming that the January 26, 2010 letter was false and was
considered by the DOE after the November 2009 telephone hearing
and before issuance of the March 2010 garnishment decision, Count
I fails to state a procedural due process claim against the MSU
adequately allege causation by these defendants for a procedural
due process violation, but effectively establishes the lack of any
possible causation by the three MSU defendants.
The Supreme Court has recognized that the United States may
offset Social Security benefits to collect a student loan debt
Lockhart v. United States, 546 U.S. 142 (2005).
Circuit has described the process:
“The practice of withholding federal payment in
satisfaction of a debt is known as an administrative
offset.” Reeves v. Astrue, 526 F.3d 732, 738 n.3 (11th
Cir.), petition for cert. filed (U.S. Aug. 1, 2008) (No.
08-5605). The Debt Collection Improvement Act of 1982,
31 U.S.C. §§ 3701 et seq., authorizes the Treasury
Department “to collect non-tax debts by withholding
funds paid out by other federal agencies.” Reeves, 526
F.3d at 738 n.3; see 31 U.S.C. § 3716(a); 31 C.F.R. §
285.5. Pursuant to the TOP, any federal agency with a
claim against the debtor, after notifying the debtor
that the debt is subject to administrative offset and
providing an opportunity to dispute the debt or make
arrangements to pay it, may collect the debt by
administrative offset. See 31 U.S.C. § 3716(a), (c)(6).
In order to do so, the creditor agency must certify to
Treasury that the debt is eligible for collection by
offset3 and that all due process protections have been
See 31 C.F.R. § 285.5(d)(3)(ii), (d)(6).
properly certified, the Treasury Department must
administratively offset the debt.
See 31 U.S.C. §
administrative offset, a debt submitted to
Treasury must be: (1) past-due in the amount
stated by the creditor agency; (2) legally
delinquent, unless the debt legally may be
offset if more than ten years delinquent; (4)
more than $25; and (5) not secured by
collateral subject to a pending foreclosure
action. See 31 C.F.R. § 285.5(d)(3)(i).
Johnson v. United States Dep’t of Treasury, 300 F. App’x 860, 862
(11th Cir. 2008).
Johnson affirmed a dismissal of a complaint
because the Department of Treasury had no control over the debt or
any obligation to ensure that a debtor receive due process under
Id. at 862-63.
So to in this case.
The process afforded plaintiff was
controlled not by any of the MSU defendants, but by the DOE.
Whatever process was given to plaintiff was not impacted by the
MSU defendants, regardless of what the letters stated.
process was deficient, it was not because of anything for which
the MSU defendants are responsible.
Additionally, a claim for denial of procedural due process is
actionable under § 1983 only when the government refuses to provide
McKinney v. Pate, 20 F.3d 1550, 1557 (11th Cir. 1994) (en banc).
It is clear that there was a constitutionally sufficient process
available to plaintiff to contest the findings of the garnishment
Plaintiff simply chose to ignore the proper process,
plaintiff he could request reconsideration of that decision.
offset was governed by the Fair Debt Collection Act, and the
Administrative Procedure Act (APA), 5 U.S.C. §§ 701, et seq., which
provides that administrative decisions, such as the Garnishment
Hearing Decision, may be reviewed by a district court.
United States Dep’t of Treasury, 118 F. App’x 989, 990 (7th Cir.
Accordingly, Count I is dismissed with prejudice as to all
three MSU defendants. 7
Count I is also dismissed to the extent that it attempts to
assert an official capacity claim against the MSU defendants.
Supreme Court has held that government entities may be sued under
§ 1983 for only their own unconstitutional or illegal policies;
they may not be sued for the acts of their employees.
Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978).
See also Topping
v. United States Dep’t of Educ., 510 F. App’x 816, 818 (11th Cir.
Thus, a plaintiff seeking to impose § 1983 liability on a
government entity must prove that “action pursuant to official
municipal policy” caused their injury.
Connick v. Thompson, 131
S. Ct. 1350, 1359 (2011) (quoting Monell, 436 U.S. at 691).
such allegations are contained in the Third Amended Complaint.
Count I is therefore dismissed to the extent that it asserts an
official capacity claim against Owczarek, Gulick, and Rovig.
In Count II of the Third Amended Complaint, plaintiff alleges
that Cohen, Mason, Owczarek, Spadoni, Thompson, and Varnovitsky
violated of the federal civil RICO statutes by engaging in a
criminal enterprise to deny plaintiff of his right to due process
I is also dismissed to the extent that it attempts to
claim against the MSU defendants in their official
of law in order to unlawfully obtain his property.
relies upon the same basic factual allegations summarized earlier
regarding his disputed February 1982 loan at MSU.
Section 1962(c) of the RICO Act makes it unlawful “for any
person employed by or associated with any enterprise engaged in,
or the activities of which affect, interstate or foreign commerce,
to conduct or participate, directly or indirectly, in the conduct
of such enterprise’s affairs through a pattern of racketeering
18 U.S.C. § 1962(c).
To establish a federal civil
RICO violation under § 1962(c), the plaintiff must prove (1)
racketeering activity and (5) injury to “business or property” (6)
that was “by reason of” the substantive RICO violation.
v. Mohawk Indus., 465 F.3d 1277, 1282 (11th Cir. 2006), cert.
For purposes of defendants’ motions, the Court will
To establish a pattern of racketeering activity, plaintiff
Williams, 465 F.3d at 1283.
The RICO Act
defines “racketeering activity” comprehensively in 18 U.S.C. §
1961(1) to include a variety of enumerated criminal offenses.
this matter, plaintiff believes that various defendants committed
the following offenses: bribery of a public official in violation
of 18 U.S.C. § 201; mail fraud in violation of 18 U.S.C. § 1341;
wire fraud in violation of 18 U.S.C. § 1343; and tampering with a
witness in violation 18 U.S.C. § 1512. 8
Cohen is the Assistant United States Attorney who represented
the DOE and its employees in plaintiff’s first lawsuit.
plaintiff alleges that on December 30, 2010, Cohen filed a document
contribute to the unlawful deprivation of due process.
p. 54.) Plaintiff asserts that this filing constitutes obstruction
of justice and concealment of evidence in violation of two federal
Second, plaintiff alleges that on January 9, 2011, Cohen telephoned
testimony, in violation of two federal statutes and three state
(Id. at pp. 54-55.)
also believes that defendants violated other
provisions located in Title 18 of the United States Code and the
Florida statutes. The cited provisions, however, do not qualify
as predicate acts. See 18 U.S.C. § 1961(1).
While denying any misconduct, Cohen argues that he is entitled
to absolute immunity.
The Court agrees.
The Eleventh Circuit has
held that “assistant attorneys general were absolutely immune from
claims related to their advocacy functions in defending state
officers in civil rights suits.”
McConnell v. King, 42 F.3d 471,
472 (11th Cir. 1994) (citing Murphy v. Morris, 849 F.2d 1101, 1105
(8th Cir. 1988)).
The Court finds that the same principle applies
to assistant United States Attorneys defending government agencies
and their employees in a civil rights case.
Since all of the
conduct alleged against Cohen clearly relates to his advocacy
function in defending against plaintiff’s first lawsuit, he is
prejudice as to Cohen.
Cohen also argues that the claim fails to state a cause of
action and is frivolous.
For the reasons stated below, the Court
agrees, and in the alternative grants the motion to dismiss on
that basis. The Court need not address Cohen’s affirmative defense
regarding the statute of limitations.
All of the alleged predicate acts relating to Mason relate to
her role as “team leader” for the Thompson garnishment hearing,
which plaintiff describes as a sham proceeding that reached the
Plaintiff asserts that Mason is responsible for
Thompson’s performance, and that Mason’s “series of supervisory
errors could have but one design: to assist in the intentional
denial of the lawful process as described in 20 USC § 1095a [the
garnishment requirements for the Higher Education Act].”
obstruction of justice under 18 U.S.C. § 1505, concealment of
evidence under 18 U.S.C. § 1001, and a violation of three state
predicate acts, which they do not, 9 the Court finds that plaintiff
has failed to plausibly allege that Mason violated 18 U.S.C. §
1505 or 18 U.S.C. § 1001.
Under 18 U.S.C. § 1505, it is a crime to “corruptly, or by
threats or force, or by any threatening letter or communication
obstruct, or impede the due and proper administration of the law
department or agency of the United States.”
18 U.S.C. § 1505.
The term “corruptly” means “acting with an improper purpose,
personally or by influencing another, including making a false or
misleading statement, or withholding, concealing, altering, or
of justice under 18 U.S.C. § 1503, titled
“Influencing or injuring officer or juror generally,” qualifies as
a predicate act under 18 U.S.C. 1961(1), but a violation of 18
U.S.C. § 1505, titled “Obstruction of proceedings before
departments, agencies, and committees,” does not. See 18 U.S.C.
destroying a document or other information.”
18 U.S.C. § 1515(b).
Nothing in the pleadings show any plausible basis to believe
Mason’s supervisory acts in this case amounted to a violation of
To establish a violation of 18 U.S.C. § 1001, plaintiff must
prove: “(1) that the defendant made a false statement; (2) that
the statement was material; (3) that the defendant acted with
specific intent to mislead; and (4) that the matter was within the
McCarrick, 294 F.3d 1286, 1290 (11th Cir. 2002). A false statement
is material if it has “a natural tendency to influence, or be
capable of influencing, the decision of the decisionmaking body to
which it was addressed.
1203 (11th Cir. 2013).
United States v. House, 684 F.3d 1173,
Actual influence is not required.
Plaintiff has failed to allege facts which plausibly show that
Mason violated § 1001.
Plaintiff alleges that Owczarek’s January 10, 2010 letter
certifying that plaintiff had been enrolled in and attending
classes at MSU in the spring of 1982 constituted obstruction of
justice under 18 U.S.C. § 1505, concealment of evidence under 18
Plaintiff further alleges that Owczarek had been offered a reward
to make the false statements, which he argues constitutes bribery
of public official or witness under 18 U.S.C. § 201.
As with Cohen
and Mason, plaintiff has failed to allege facts establishing a
plausible basis to belief Owczarek committed such predicate acts.
It is a federal crime to offer something of value to a public
official with the intent to influence an official act.
It is also unlawful for a public official to seek,
receive, or accept anything of value in return for being influenced
in the performance of any official act.
18 U.S.C. § 201(b)(2).
Plaintiff believes that Owczarek authored the January 26, 2010
letter in response to a bribe from Varnovitsky.
the Third Amended Complaint, the Court finds that there are no
adequate factual support, the alleged bribery of a public official
does not qualify as a predicate act.
Plaintiff alleges that Spadoni refused to provide a Title IV
hearing to plaintiff in October 1993 and in August 1996, and
previously stated, obstruction of justice under 18 U.S.C.
§ 1505 and concealment of evidence under 18 U.S.C. § 1001 do not
qualify as a predicate acts under 18 U.S.C. § 1961(1).
authored letters about the refusal to provide a hearing in August
Plaintiff asserts that Spadoni’s actions constitute an
obstruction of justice under 18 U.S.C. § 1505.
Refusal to provide
a hearing as required by 20 U.S.C. § 1095a, would not constitute
an obstruction of justice under the facts alleged, and in any event
would not come within the ten year requirement of 18 U.S.C. §
See generally Rotella v. Wood, 528 U.S. 549, 552 (2000).
Plaintiff also alleges that Spadoni committed numerous acts
of mail and wire fraud in violation of 18 U.S.C. §§ 1341 and 1343.
In order to establish mail and wire fraud, a plaintiff must
establish (1) defendants’ intentional participation in a scheme to
defraud (2) the plaintiff of money or property (3) using interstate
mails and wires in furtherance of the scheme (4) resulting in
plaintiff’s injury (5) that can be quantified as a specific amount
See 18 U.S.C. §§ 1341, 1343.
“A scheme to defraud
requires proof of a material misrepresentation, or the omission or
concealment of a material fact calculated to deceive another out
of money or property.”
United States v. Maxwell, 579 F.3d 1282,
1299 (11th Cir. 2009) (citing United States v. Svete, 556 F.3d
1157, 1161, 1169 (11th Cir. 2009)).
Plaintiff must also establish
that he reasonably relied upon the false statements.
Nursery v. E.I. DuPont De Nemours and Co., 341 F.3d 1292, 1306
(11th Cir. 2003); Pelletier v.
Zweifel, 921 F.2d 1465, 1503 (11th
When, as in the instant case, a plaintiff alleges
that the defendants engaged in a scheme to defraud manifested by
multiple crimes of mail and/or wire fraud, the complaint must meet
the heightened pleading standard of Fed. R. Civ. P. 9(b). American
Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1291 (11th Cir. 2010). 11
The Third Amended Complaint asserts that Spadoni committed at
least five acts of mail fraud.
Plaintiff, however, has failed
material or that he was misled by the allegedly false statements.
To the contrary, plaintiff alleges that he knew the statements to
Because plaintiff does not allege that he was misled by
an allegedly fraudulent statement, the claims of mail fraud against
See American Dental Ass’n, 605
Spadoni are inadequately pled.
F.3d at 1292.
Plaintiff alleges that Thompson committed mail and wire fraud
by sending plaintiff a letter on November 8, 2009, conducting the
November 25, 2009 garnishment hearing telephonically, and sending
plaintiff the “Garnishment Hearing Decision” in March 2010.
was the case with Spadoni, plaintiff has failed to allege facts
Rule 9(b), a plaintiff must allege: “(1) the precise
statements, documents, or misrepresentations made; (2) the time,
place, and person responsible for the statement; (3) the content
and manner in which these statements misled the plaintiff; and (4)
what the defendants gained by the alleged fraud.” American Dental
Ass’n, 605 F.3d at 1291 (quoting Brooks v. Blue Cross & Blue Shield
of Fla., Inc., 116 F.3d 1364, 1380-81 (11th Cir. 1997)).
establishing that Thompson made a material misrepresentation or
that plaintiff was misled by Thompson’s actions.
Even if plaintiff had plausibly alleged an act of mail or
wire fraud, dismissal would still be warranted because Thompson is
entitled to absolute immunity.
In Butz v. Economou, 438 U.S. 478
(1978), the Supreme Court concluded that federal hearing examiners
and administrative law judges are “entitled to absolute immunity
from damages liability for their judicial acts.”
Fed. Mar. Comm’n
v. S.C. State Ports Auth., 535 U.S. 743, 757 (2002) (quoting Butz,
438 U.S. at 514).
See also Smith v. Shook, 237 F.3d 1322, 1325
(11th Cir. 2001) (holding that administrative law judges “are
responsibilities are functionally comparable to those of trial
Since all of the allegations against Thompson are based on her
role as hearing official for the DOE, she is entitled to absolute
Count II is therefore dismissed with prejudice as to
On January 26, 2010, Varnovitsky telephoned Owczarek and
requested a letter regarding plaintiff’s enrollment at MSU in
constitute wire fraud under 18 U.S.C. § 1343, obstruction of
justice under 18 U.S.C. § 1505, bribery of a public official under
18 U.S.C. § 201, and a violation of four Florida statutes.
failed to plausibly allege that Varnovitsky violated 18 U.S.C. §§
201, 1343, or 1505.
In conclusion, the Court finds that plaintiff has failed to
racketeering activity. 12
Accordingly, Count II is dismissed for
failure to state a claim upon which relief may be granted.
In Count III, plaintiff alleges that Cohen, Mason, Spadoni,
Thompson, and Varnovitsky violated his constitutional right to
procedural due process.
Civil actions against federal employees
Court further finds that plaintiff is unable to state a
civil RICO claim against the DOE and the Michigan Department of
Education because government entities cannot be held civilly
liable under 18 U.S.C. § 1964(c). See McNeill v. Town of Paradise
Valley, 44 F. App’x 871 (9th Cir. 2002) (citing Lancaster Cmty.
Hosp. v. Antelope Valley Hosp., 940 F.2d 397, 404 (9th Cir. 1991))
(holding that a government entity cannot constitute a RICO
enterprise); McNeily v. United States, 6 F.3d 343, 350 (5th Cir.
1993) (citing Berger v. Pierce, 933 F.2d 393, 397 (6th Cir. 1991))
(holding that a federal agency may not be sued under the federal
RICO statute); Pine Ridge Recycling, Inc. v. Butts Cnty., Ga., 855
F. Supp. 1264, 1273-74 (M.D. Ga. 1994) (holding that state agencies
cannot be held civilly liable under 18 U.S.C. § 1964(c) because
they are incapable of forming the criminal intent necessary for
the commission of a predicate act).
constitutional rights are governed by Bivens v. Six Unknown Named
Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
Hartman v. Moore, 547 U.S. 250, 254 (2006).
alleged violations of the Fourth Amendment, but the Supreme Court
has also allowed Bivens actions for violations of the Due Process
Clause of the Fifth Amendment.
Wilkie v. Robbins, 551 U.S. 537,
549 (2007); Alba v. Montford, 517 F.3d 1249, 1252-53 (11th Cir.
Damages can be obtained in a Bivens action when (1) the
plaintiff has no alternative means of obtaining redress and (2) no
“special factors counseling hesitation” are present.
Cohen, 375 F.3d 1262, 1264 (11th Cir. 2004) (quoting Stephens v.
Dep’t of Health & Human Servs., 901 F.2d 1571, 1575-76 (11th Cir.
“Those special factors ‘include an appropriate judicial
deference’ toward the will of Congress: ‘When the design of a
Government program suggests that Congress has provided what it
violations that may occur in the course of its administration, we
have not created additional Bivens remedies.’”
Hardison, 375 F.3d
at 1264 (quoting Schweiker v. Chilicky, 487 U.S. 412, 423 (1988)).
In Topping v. United States Dep’t of Educ., 510 F. App’x 816
existence of a right to judicial review under the APA is sufficient
to preclude an individual from bringing a Bivens action.
510 F. App’x at 819 (citing Miller v. United States Dep’t of Agric.
Farm Servs. Agency, 143 F.3d 1413, 1416-17 (11th Cir. 1998)).
Because plaintiff had an opportunity to be heard in connection
with the wage garnishment proceedings and had the opportunity to
seek judicial review of the wage garnishment decision, the Court
finds that plaintiff cannot maintain a Bivens action against Cohen,
Mason, Spadoni, Thompson, and Varnovitsky.
Count III is dismissed
To the extent that plaintiff attempts to state a Bivens claim
against the DOE, the Court finds that he has failed to do so.
Topping, 510 F. App’x at 818 (a plaintiff may bring a cause of
individual capacity, but not against a federal agency); Thibeaux
v. United States Atty. Gen., 275 F. App’x 889, 893 (11th Cir. 2008)
(A Bivens claim may be asserted against a federal officer acting
in his individual capacity but not his official capacity); Okpala
v. Jordan, 193 F. App’x 850, 852 (11th Cir. 2006) (per curiam) (“A
Accordingly, Count III is dismissed in its entirety.
“[A] district court must grant a plaintiff at least one
opportunity to amend [his] claims before dismissing them if it
appears a more carefully drafted complaint might state a claim
upon which relief can be granted even if the plaintiff never seeks
leave to amend.”
Silva v. Bieluch, 351 F.3d 1045, 1048 (11th Cir.
2003) (internal quotations omitted).
A district court need not
grant such leave if an amendment would be futile.
Sparks, 510 F.3d 1307, 1310 (11th Cir. 2007).
“Leave to amend a
complaint is futile when the complaint as amended would still be
plaintiff’s complaint would be futile because the allegations in
Furthermore, the claims in this matter are based upon the same
“fanciful” allegations referred to by the Eleventh Circuit in
Topping v. United States, Case No. 2:12-cv-524-FTM-99SPC, Doc. #30
(holding that “Topping’s complaint contains fanciful allegations
complaint would not state plausible claims in this case, this
action will be dismissed with prejudice.
Accordingly, it is now
Defendant Assistant United States Attorney Kyle Cohen’s
Motion to Dismiss (Doc. #73) is GRANTED.
Plaintiff’s Motion for Summary Judgment as to Defendants
USA (Doc. #74) is DENIED as moot.
Defendants Charlotte Mason, Diane Spadoni, Jacquenette
Thompson, and Natasha Varnovitsky’s Motion to Dismiss (Doc. #76)
is DENIED as moot.
Defendants Charlotte Mason, Diane Spadoni, Jacquenette
Thompson, and Natasha Varnovitsky’s Amended Motion to Dismiss
(Doc. #77) is GRANTED.
(Doc. #78) is DENIED as moot.
Plaintiff’s Motion for Sanctions (Doc. #82) is DENIED.
Defendants Scott Owczarek, Teresa Gulick, and Nicole
Rovig’s Motion to Dismiss (Doc. #85) is GRANTED.
Plaintiff’s Third Amended Complaint is dismissed with
The Clerk shall enter judgment accordingly, terminate
all pending motions and deadlines as moot, and close the file.
DONE AND ORDERED at Fort Myers, Florida, this
Counsel of record
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