Partovi v. Beamer et al
Filing
55
ORDER Granting 37 Defendant's Motion to Dismiss. Signed by JUDGE SUSAN OKI MOLLWAY on 12/16/2011. (gab, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
) CIVIL NO. 10-00689 SOM-BMK
)
Plaintiff,
)
) ORDER GRANTING DEFENDANTS’
vs.
) MOTION TO DISMISS
)
DAYNA BEAMER, JUNE Y. I. ITO,
)
)
)
Defendants.
______________________________ )
ALI PARTOVI,
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS
When he commenced this action, pro se Plaintiff Ali
Partovi was in the custody of the U.S. Immigration and Customs
Enforcement Agency (“ICE”), in Florence, Arizona.
released.
He is now
Partovi alleges that United States Immigration Judge
Dayna Beamer (“IJ Beamer”) and Assistant District Counsel for the
immigration court, June Y.I. Ito (“Ito”), violated his
constitutional rights during his May 2002 removal proceedings in
Guam.
Compl., ECF #1, Counts I & II.
Before the court is Defendants’ Motion to Dismiss,
brought pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal
Rules of Civil Procedure.
ECF #37.
Partovi has filed an
Opposition to the Motion, and Defendants have filed a Reply.
#47 & #49.
ECF
Pursuant to LR7.2(d) of the Local Rules of Practice
for the District of Hawaii, the court elects to decide this
matter without a hearing.
78(b).
See Local Rule 7.2(d); Fed. R. Civ. P.
Defendants’ Motion to Dismiss is GRANTED, and this action
is dismissed with prejudice.
I.
BACKGROUND
Partovi has an extensive litigation history in the
federal courts stemming from his illegal entry into the United
States in 2001.
See http://pacer.psc.uscourts.gov.1
To date,
Partovi has filed twenty-four civil actions and ten appeals in
the United States courts protesting his immigration detention and
treatment since 2003.
Partovi here challenges Defendants’
actions taken during and after his immigration proceedings in
Guam, in May 2002.
On October 22, 2001, Partovi entered and applied for
admission to the United States at Guam using a fraudulent Italian
passport.
See Defs.’ Ex. A, May 3, 2002 Decision & Order of the
Immigration Judge (“Removal Order”), ECF #37-3; see also Compl.,
ECF #1 at 7.
On January 8, 2002, Partovi pleaded guilty in the
United States District Court for the District of Guam to illegal
entry into the United States.
Removal Order, ECF #37-3 at 4; see
also United States v. Partovi, 1:2001-cr-00120.
On April 23,
2002, Partovi was sentenced to 175 days of time served, with
twenty-four months of supervised release and immediate
deportation to follow.
United States v. Partovi, 1:2001-cr-
1
The court may take judicial notice of facts outside of the
pleadings that are a matter of public record or “reports of
administrative determinations,” such as the facts underlying
Partovi’s immigration proceedings, without converting a motion to
dismiss into a motion for summary judgment. See White v. Martel,
601 F.3d 882, 885 (9th Cir. 2010); U.S. v. 14.02 Acres of Land
More or Less in Fresno County, 547 F.3d 943,955 (9th Cir. 2008).
2
00120, Sentencing, ECF #14.
On May 3, 2002, after two days of immigration hearings,
IJ Beamer denied Partovi’s application for asylum, withholding of
removal, and relief under the United Nations Convention Against
Torture, and ordered him removed from the United States.
#37-3 at 4, 30; see also Compl., ECF #1 at 7-8.
ECF
Because Partovi
did not appeal this order with the Board of Immigration Appeals
(“BIA”), the decision became final thirty days later on June 2,
2002.
See 8 C.F.R. §§ 1003.38-.39, 1240.14-.15; see also 8
U.S.C. § 1101(a)(47)(B).
Partovi had thirty days to petition for
review with the Ninth Circuit Court of Appeals.
See 8 U.S.C.
§ 1252(b)(1); see also Minasyan v. Mukasey, 553 F.3d 1224, 1229
(9th Cir. 2009).
He did not do so.
Instead, more than a year later, on June 6, 2003,
Partovi filed a petition for writ of habeas corpus in the United
States District Court for the District of Arizona, Partovi v.
Ashcroft, 2:03-cv-01098-EHC.
The Arizona district court
transferred Partovi’s petition to the Ninth Circuit Court of
Appeals, as it sought review of the order of removal, and denied
Partovi’s other claims.
ECF #49.
2:03-cv-01098-EHC, Dec. 12, 2005 Order,
The appellate court dismissed Partovi’s petition for
review of the removal order as frivolous, App. Ct. No. 05-77153,
ECF #48, and denied rehearing en banc, ECF #57.
On November 22, 2010, more than eight years after
3
Partovi’s immigration proceedings had concluded on Guam, Partovi
commenced this action.
Partovi alleges that IJ Beamer denied him
legal representation and made racist comments about his Middle
Eastern features and nationality during his 2002 immigration
proceedings, in violation of the Sixth and Eighth Amendments and
8 C.F.R. 1003.61.2
Compl., ECF #1 at 7, Count I.
Partovi
alleges that Ito denied his request for transcripts of those
proceedings for more than two years, and, when he finally
received the transcripts in 2006, that Ito had altered the
transcript to delete IJ Beamer’s allegedly racist remarks,
violating the Fourth and Fifth Amendments.3
II.)
(Id. at 10, Count
Partovi names Defendants in their individual and official
capacities and seeks $2 million in damages.
II. LEGAL STANDARDS
A.
Rule 12(b)(1)
A motion to dismiss under Rule 12(b)(1) of the Federal
2
Section 1003.61 of the Code of Federal Regulations
requires the Chief Immigration Judge to maintain a current list
of organizations and attorneys qualified to provide free legal
services, and to provide the list to aliens in immigration
proceedings. 8 C.F.R. 1003.61. It does not require appointment
of counsel at government expense. See 8 U.S.C. § 1362 (“In any
removal proceedings before an immigration judge . . ., the person
concerned shall have the privilege of being represented (at no
expense to the Government) by such counsel . . . as he shall
choose.”).
3
Partovi claims that the transcripts were his personal
property, and that Ito’s alleged tampering with and withholding
of them violated due process and his right to be free from
unreasonable search and seizure.
4
Rules of Civil Procedure tests the subject matter jurisdiction of
the court.
See, e.g., Savage v. Glendale Union High Sch., 343
F.3d 1036, 1039-40 (9th Cir. 2003); White v. Lee, 227 F.3d 1214,
1242 (9th Cir. 2000).
The plaintiff bears the burden of
establishing the propriety of the court’s jurisdiction.
Kokkonen
v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)
(“Federal courts are courts of limited jurisdiction. . . .
It is
to be presumed that a cause lies outside this limited
jurisdiction, and the burden of establishing the contrary rests
upon the party asserting jurisdiction.”) (citations omitted).
If
jurisdiction is based on a federal question, the pleader must
show that he has alleged a claim under federal law and that the
claim is not frivolous.
See 5B Charles A. Wright & Arthur R.
Miller, Federal Practice and Procedure § 1350, pp. 211, 231 (3d
ed. 2004).
“A Rule 12(b)(1) jurisdictional attack may be facial or
factual.”
Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039
(9th Cir. 2004).
“In a facial attack, the challenger asserts
that the allegations contained in a complaint are insufficient on
their face to invoke federal jurisdiction.
By contrast, in a
factual attack, the challenger disputes the truth of the
allegations that, by themselves, would otherwise invoke federal
jurisdiction.”
White, 227 F.3d at 1242.
Although Defendants do
not expressly so state, it appears they are making a facial
5
attack, rather than a factual attack, alleging that Partovi’s
allegations are, in certain respects, insufficient on their face
to invoke federal jurisdiction.
In a facial attack, the court
assumes the factual allegations in the complaint are true and
draws all reasonable inferences in the plaintiff’s favor.
Doe v.
Holy See, 557 F.3d 1066, 1073 (9th Cir. 2009).
“Claims raised under Rule 12(b)(1) should be addressed
before other reasons for dismissal filed under Rule 12(b)(6).”
Felix v. Pic-N-Run, Inc., 2010 WL 1856347, *2 (D. Ariz. 2010)
(citing Wright and Miller, § 1350, 209-10 (“[W]hen the motion is
based on more than one ground, the court should consider the Rule
12(b)(1) challenge first since if it must dismiss the complaint
for lack of subject matter jurisdiction, the accompanying
defenses and objections become moot and do not need to be
determined.”)).
B.
Rule 12(b)(6)
Under Federal Rule of Civil Procedure 12(b)(6), a
complaint may be dismissed for failure to state a claim upon
which relief may be granted.
All allegations of material fact
are taken as true and construed in the light most favorable to
the non-moving party.
Marceau v. Blackfeet Hous. Auth., 540 F.3d
916, 919 (9th Cir. 2008).
The court is not, however, required
“to accept as true allegations that are merely conclusory,
unwarranted deductions of fact, or unreasonable inferences.”
6
In
re Gilead Sciences Sec. Litig., 536 F.3d 1049, 1056-57 (9th Cir.
2008).
Additionally, “[t]o survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its
face.’”
Ashcroft v. Iqbal, 556 U.S. 662, ---, 129 S.Ct. 1937,
1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)).
If matters outside the pleadings are considered, the
Rule 12(b)(6) motion is treated as one for summary judgment.
See
Keams v. Tempe Tech. Inst., Inc., 110 F.3d 44, 46 (9th Cir.
1997); Anderson v. Angelone, 86 F.3d 932, 934 (9th Cir. 1996).
Courts may, however, “consider certain materials--documents
attached to the complaint, documents incorporated by reference in
the complaint, or matters of judicial notice--without converting
the motion to dismiss into a motion for summary judgment.”
United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003).
Documents whose contents are alleged in a complaint and whose
authenticity is not questioned by any party may also be
considered in ruling on a Rule 12(b)(6) motion to dismiss.
See
Branch v. Tunnell, 14 F.3d 449, 453-54 (9th Cir. 1994).
If the court determines that a defect could be cured by
the allegation of other facts, a pro se litigant is entitled to
an opportunity to amend a complaint before dismissal of the
action.
See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir.
7
2000) (en banc).
II. DISCUSSION
Defendants argue that (1) they have sovereign immunity
from suit in their official capacities; (2) they have absolute
judicial and prosecutorial immunity from suit for their actions
relating to Partovi’s immigration proceedings; (3) as federal
officers, Partovi cannot maintain a suit under 42 U.S.C. § 1983
against them; (4) Partovi’s claims are time-barred; and (5)
Partovi’s claims otherwise fail to state a cognizable violation
of the Constitution or laws of the United States.
A.
Rule 12(b)(1): Lack of Subject Matter Jurisdiction
Defendants fail to clarify which of their arguments is
premised on a lack of subject matter jurisdiction, as opposed to
a failure to state a claim.
For his part, Partovi does not
address Defendants’ argument that this court lacks subject matter
jurisdiction over his claims.
In other words, Partovi fails to
prove that the court has jurisdiction over his claims, as
required.
See Kokkonen, 511 U.S. at 377.
In light of Partovi’s
pro se status, however, the court has reviewed Defendants’
arguments on their merits and finds that it lacks subject matter
jurisdiction over some of Partovi’s claims.
1.
Defendants Are Dismissed in Their Official Capacities
Defendants argue that claims against them in their
official capacities are barred by the doctrine of sovereign
8
immunity, and, because they are federal officers operating
pursuant to federal law, Partovi’s claims brought under 42 U.S.C.
§ 1983 must be dismissed.
Partovi incorrectly asserts jurisdiction under § 1983.
See Compl., ECF #1 at 1.
Because he is proceeding pro se,
however, and seeks damages against federal agency employees for
an alleged violation of his constitutional rights that occurred
while he was in federal custody, the court liberally construes
this action as brought pursuant to Bivens v. Six Unknown Federal
Narcotics Agents, 403 U.S. 388 (1971).4
See Morgan v. United
States, 323 F.3d 776, 780 (9th Cir. 2003); Van Strum v. Lawn, 940
F.2d 406, 409 (9th Cir. 1991).
Partovi names IJ Beamer and Ito in their individual and
official capacities.
Critically, “a Bivens action is, by
definition, against defendants in their individual and not their
official capacity.”
Vaccaro v. Dobre, 81 F.3d 854 (9th Cir.
1996); see, e.g., Consejo De Desarrollo Economico De Mexicali,
A.C. v. United States, 482 F.3d 1157, 1173 (9th Cir. 2007)
(concluding that Bivens claims extend to federal agents in their
4
Bivens “recognized for the first time an implied private
action for damages against federal officers alleged to have
violated a citizen’s constitutional rights.” Iqbal, 129 S. Ct.
at 1947; see Bivens, 403 U.S. at 397 (holding that monetary
damages are available for injuries suffered as a result of
federal officials’ violations of the Fourth Amendment). In doing
so, the Court created a new constitutional tort applied to
federal officers, and a federal counterpart to 42 U.S.C. § 1983.
9
individual capacity rather then official capacity); Morgan, 323
F.3d at 779 (same); Daly-Murphy v. Winston, 837 F.2d 348 (9th
Cir. 1988) (same).
With respect to Partovi’s claims against IJ
Beamer and Ito in their official capacities, and by inference,
against the United States, the court has found no waiver of
sovereign immunity.
Accordingly, the court DISMISSES these
claims for lack of subject matter jurisdiction.
B.
Rule 12(b)(6): Failure to State A Claim
Turning to Partovi’s claims against Defendants in their
individual capacities, the court concludes that such claims are
subject to dismissal for failure to state a claim.
Several bases
for this dismissal are readily apparent.
1.
Partovi’s Claims are Time-Barred
The untimeliness of the claims against Defendants in
their individual capacities is the dismissal ground with the most
obviously far-reaching effect.
A motion to dismiss may be granted if an affirmative
defense or other bar to relief is apparent from the face of the
complaint, such as a statute of limitation.
424 U.S. 409 (1976).
Imbler v. Pachtman,
Although federal law determines when a
Bivens claim accrues, Wallace v. Kato, 549 U.S. 384, 388 (2007),
courts apply the forum state’s statute of limitation for personal
injury actions and that state’s tolling provisions.
Van de Kamp, 486 F.3d 1128, 1132 (9th Cir. 2007).
10
Canatella v.
Hawaii’s
statute of limitation for personal injury claims is two years.
See Haw. Rev. Stat. § 657-7; Pele Defense Fund v. Paty, 73 Haw
578, 597-98, 837 P.2d 1247, 1260 (1992).
Under federal law, a cause of action accrues when the
plaintiff knows or had reason to know of the injury that forms
the basis for his claim.
Two Rivers v. Lewis, 174 F.3d 987, 991
(9th Cir. 1999); see also Wallace, 549 U.S. at 391 (claim accrues
when wrongful act results in damages).
While ignorance of the
fact of an injury or its cause may delay accrual of the statute
of limitation, a plaintiff’s ignorance of his legal rights does
not.
See United States v. Kubrick, 444 U.S. 111, 122, 124
(1979)(“If [a plaintiff] . . . is incompetently told that he does
not have a case, we discern no sound reason for visiting the
consequences of such error on the defendant by delaying the
accrual of the claim until plaintiff is otherwise informed or
himself determines to bring suit[.]”).
“In the absence of
fraudulent concealment it is plaintiff’s burden, within the
statutory period, to determine whether and whom to sue.”
Davis
v. United States, 642 F.2d 328, 331 (9th Cir. 1981).
In Hawaii, therefore, a plaintiff has two years from
the date that he knows or has reason to know of his injury to
file a Bivens claim, and ignorance of the law does not toll the
statute of limitation.
Partovi’s claims against IJ Beamer stem
from actions she allegedly took and statements she allegedly made
11
during his immigration proceedings in Guam between May 1 and 3,
2002.
They accrued no later than May 3, 2002.
174 F.3d at 991.
See Two Rivers,
Partovi’s claims that Ito refused to process
his request for a transcript of the proceedings and then tampered
with the transcripts accrued no later than October 23, 2006, the
date Partovi claims he received the transcript and determined it
had been altered.
See Compl., ECF #1 at 10 (“I received the
editted [sic] version of my English written transcript of the
May, 2002 court hearing proceedings, on October 23, 2006.”).
Partovi filed this action on November 22, 2010, eight years after
the immigration proceedings in Guam concluded and four years
after he received the allegedly tampered transcripts.
Partovi does not argue that he was unaware of his
claims, or present any argument that the statute of limitation on
his claims should be tolled.
Rather, the record shows that
Partovi has been challenging his detention in immigration and
habeas proceedings since 2003 and through civil rights actions
since at least 2004.
See Pl. Opp’n, ECF #47 at 4.
Partovi also
says that he was told in March 2003 that IJ Beamer “doesn’t want
to help Plaintiff, Partovi,” making clear that he has been aware
of the alleged constitutional violations for longer than two
years.
Pl. Opp’n, ECF #47-21 at 2.
Moreover, although Partovi vaguely alleges fraudulent
concealment, insofar as he claims that Ito altered the recording
12
of his proceedings, his conclusory legal pronouncements are
neither persuasive nor plausible given his factual allegations
and the record before the court.
Additionally, Partovi
materially alters his claim against Ito in his Opposition.
In
his Complaint, Partovi alleged that Ito expressly refused his
request for transcripts and then altered them.
In his
Opposition, Partovi states that he actually requested the
transcripts from the Farsi translator during his proceedings and
then saw the translator speak to Ito.
See Opp’n, ECF #47 at 4
(“Plaintiff . . . requested . . . translator to provide Plaintiff
a copy of my . . . transcripts, but he refused and . . . then
[the translator] spoke to . . . Ito, and he pointed at []
Plaintiff then left.”); Pl. Ex. 9, Pl. Decl., ECF #47-11.
From
this exchange, Partovi concludes that Ito was behind the delay in
receiving the transcripts, although he provides nothing other
than this unsupported conjecture, to show that Ito refused his
request, delayed, or altered the transcripts.
Both versions of
Plaintiff’s stories are supposition and do not merit belief.
Iqbal, 129 S.Ct. at 1949.
Partovi fails to plausibly allege
misconduct or facts that would make the doctrine of equitable
estoppel applicable here.
See Johnson v. Henderson, 314 F.3d
409, 414 (9th Cir. 2002) (holding that equitable estoppel
requires action taken by a defendant to prevent a potential
plaintiff from filing suit).
13
See
Partovi’s status as an immigration detainee for the
past nine years did not toll the statute of limitation under Haw.
Rev. Stat. § 657-13.5
Section 657-13 tolls the statute of
limitation for those who, at the time the action accrued, are
“[i]mprisoned on a criminal charge, or in execution under the
sentence of a criminal court for a term less than the person’s
natural life incarcerated for a term less than life.”
Partovi
was not in criminal custody when he filed this action or when
this cause of action accrued.
See Agyeman v. I.N.S., 296 F.3d
871, 886 (9th Cir. 2002) (holding that the PLRA’s filing
requirements do not apply to immigration detainees, because
“deportation proceedings are civil, rather than criminal, in
nature.”).
Furthermore, Partovi concedes that his detention over
the past nine years has been purely of his own making.
See
Opp’n, ECF #47 at 3 (“Plaintiff agrees that he has re[f]used to
sign Deportation Form [I-229(a)] for almost ten (10) years, and
will continue in his refusal to cooperate, because the Plaintiff
came to the United States for asylum[.]”); see also Pelich v.
5
Under Haw. Rev. Stat § 657-13, “[i]f any person entitled
to bring any action specified in this part . . . is, at the time
the cause of action accrued . . . [i]mprisoned on a criminal
charge, or in execution under the sentence of a criminal court
for a term less than the person's natural life; such person shall
be at liberty to bring such actions within the respective times
limited in this part, after the disability is removed or at any
time while the disability exists.”
14
INS, 329 F.3d 1057, 1061 (9th Cir. 2003) (holding that “an alien
cannot assert a viable constitutional claim when his indefinite
detention is due to his failure to cooperate with the INS’s
efforts to remove him”).
A “non-cooperative detainee . . .
cannot legitimately object to his continued detention when that
very detention is caused by his own conduct.”
Id.
Partovi provides no plausible basis for equitably
tolling the two-year statute of limitation.
States, 642 F.2d 328, 331 (9th Cir. 1981).
See Davis v. United
Because Partovi
commenced this action long after the statute of limitation
expired and provides no basis for tolling the statute, his Bivens
claims against IJ Beamer and Ito in their individual capacities
are DISMISSED with prejudice as untimely.
2.
No Cognizable Cause of Action Under Bivens
Even assuming this suit is not time-barred, Partovi’s
allegations that Defendants’ actions allegedly resulted in his
illegal detention for the past nine years do not present a
cognizable legal theory for relief.
In Mirmehdi v. United
States, --- F.3d ---, 2011 WL 5222884 (9th Cir. Nov. 03, 2011),
the Ninth Circuit recently “decline[d] to extend Bivens to allow
[plaintiffs] to sue federal agents for wrongful detention pending
deportation[.]”
Id. at *4.
The court stated that, “given the
extensive remedial procedures available to . . . [immigration
detainees] and the unique foreign policy considerations
15
implicated in the immigration context,” extending Bivens to
encompass such claims is unnecessary, and thwarts the Supreme
Court’s instruction to act cautiously before extending Bivens
remedies into new contexts.
Id. at *3 (“the Court has instructed
the federal courts to ‘respond[] cautiously to suggestions that
Bivens remedies be extended into new contexts’”) (quoting
Schweiker v. Chilicky, 487 U.S. 412, 421 (1988)).
Since his detention, Partovi has commenced twelve
habeas actions and pursued numerous civil rights actions to
attain his release and payment for his allegedly illegal
detention.
See http://pacer.psc.uscourts.gov.
As noted in
Mirmehdi, “Congress has established a substantial, comprehensive,
and intricate remedial scheme in the context of immigration[,]”
including the availability of habeas corpus petitions.
2011 WL
5222884 at *4 (quoting Arar v. Ashcroft, 585 F.3d 559, 572 (2d
Cir. 2009) (further citations omitted)).
Partovi’s failure in
his earlier actions, and his attempt here to obtain monetary
relief rather than release, does not alter the conclusion that
his claims against IJ Beamer and Ito are not cognizable.
See
Mirmehdi, 2011 WL 5222884 at *4 (“Congress’s failure to include
monetary relief” despite numerous changes to the Immigration and
Nationality Act “can hardly be said to be inadvertent” (citing
Schweiker, 487 U.S. at 423)).
Partovi’s claims are therefore
DISMISSED with prejudice for failure to state a claim.
16
See
Mirmehdi, 2011 WL 5222884 at *6 (“a party is not entitled to an
opportunity to amend his complaint if any potential amendment
would be futile”); Rydell v. Servco Auto Windward, Civ. No.
1:11-00485 JMS, 2011 WL 5506088, *2 (D. Haw. Nov. 09, 2011).
3.
Not Only Does IJ Beamer Have Judicial Immunity, Her
Alleged Actions Do Not Give Rise to a Claim
Even if Partovi could overcome the defects described
above, his claims against IJ Beamer in her individual capacity
would fail.
First, governmental agency members, such as ICE
officials, who perform adjudicative functions are absolutely
immune from suit concerning decisions made while undertaking that
function.
See Butz v. Economou, 438 U.S. 478, 512-13 (1978)
(extending the doctrine of absolute judicial and prosecutorial
immunity to federal administrative agency proceedings).
IJ
Beamer was acting in a judicial capacity when she allegedly made
racist remarks about Partovi and denied him legal representation
during his May 2002 removal proceeding.
IJ Beamer is entitled to
absolute immunity from damages for Partovi’s claims against her.
Second, accepting arguendo that IJ Beamer’s remarks
about Partovi were racist, Partovi fails to state a claim.
Racist comments do not violate the Eighth Amendment.
An
official’s verbal harassment or abuse, or even the use of racial
epithets, cannot constitute a constitutional deprivation.
Freeman v. Arpaio, 125 F.3d 732, 738 (9th Cir. 1997), abrogated
on other grounds by Shakur v. Schriro, 514 F.3d 878 (9th Cir.
17
2008); Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987)
(holding that vulgar language does not rise to a constitutional
violation).
Even a threat of harm is insufficient to establish a
constitutional wrong.
See Gaut v. Sunn, 810 F.2d 923, 925 (9th
Cir. 1987) (“[I]t trivializes the eighth amendment to believe a
threat constitutes a constitutional wrong.”).
4.
Partovi Fails to State a Claim Against Ito
Like his claims against IJ Beamer, Partovi’s claims
against Ito fail even without the defects described above.
Prosecutors are absolutely immune from liability for their
conduct in “initiating a prosecution and in presenting the
State’s case” insofar as that conduct is “intimately associated
with the judicial phase of the criminal process.”
Buckley v.
Fitzsimmons, 509 U.S. 259, 270 (1993) (citing Imbler, 424 U.S. at
430); Burns v. Reed, 500 U.S. 478, 486 (1991) (quoting Imbler,
424 U.S. at 430-431); Ashelman v. Pope, 793 F.2d 1072, 1076 (9th
Cir. 1986).
“The intent of the prosecutor when performing
prosecutorial acts plays no role in the immunity inquiry.”
McCarthy v. Mayo, 827 F.2d 1310, 1315 (9th Cir. 1987).
If an
action was part of the judicial process, the prosecutor is
entitled to absolute immunity regardless of whether he violated
the civil plaintiff’s constitutional rights.
See Scheuer v.
Rhodes, 416 U.S. 232, 242 (1974).
Ito’s actions taken while prosecuting Partovi’s
18
immigration proceedings are clearly covered by the doctrine of
prosecutorial immunity.
Butz, 438 U.S. at 513 (holding that
immunity also extends to attorneys who perform quasi-judicial
tasks in civil actions); see Imbler, 424 U.S. at 422 (holding
that prosecutors are absolutely immune from civil suits for
damages which challenge activities related to the initiation and
presentation of criminal prosecutions).
Partovi does not
challenge Ito’s actions taken before or during his immigration
proceedings, however.
He confines his claims to Ito’s allegedly
illegal actions taken long after his 2002 removal proceedings.
Determining whether a prosecutor’s actions are
immunized requires a functional analysis.
The classification of
the challenged acts, not the motivation underlying them,
determines whether absolute immunity applies.
at 1078.
Ashelman, 793 F.2d
A prosecutor’s quasi-judicial functions, rather than
administrative or investigative functions, are absolutely immune.
Butz, 438 U.S. at 511; see also Mireles v. Waco, 502 U.S. 9,
12-13 (1991); cf., Van de Kamp v. Goldstein, 555 U.S. 335, 129
S.Ct. 855, 862 (2009) (that prosecutors are also immune from
claims based on “administrative” failures if those failures are
directly connected with the conduct of a trial, including
supervision and training on impeachment-related information and
the creation of information management systems relating to such
evidence).
19
Assuming arguendo that Ito had a duty to provide
transcripts to Partovi, it does not follow that her failure to do
so was intimately entwined with Partovi’s immigration
proceedings, or in other words, part of “the judicial process.”
That is, Ito’s challenged conduct was not undertaken in
preparation for “the initiation of judicial proceedings or for
trial,” or “the course of [Ito’s] role as an advocate for the
State.”
See Buckley, 509 U.S. at 273.
Ito is not entitled to
absolute immunity for her alleged failure to provide and
alteration of the official transcripts of Partovi’s immigration
proceeding.
Nonetheless, Ito declares that she has no duty to
provide transcripts of immigration proceedings to immigration
detainees or appellants.
Rather, if the Board of Immigration
Appeals determines transcripts are required for the appeal, it
arranges for the hearing to be transcribed and distributed to all
the parties.
See Ito Dec., ECF #37-2 at 2 ¶ 7.
address this in his Opposition.
Partovi does not
Partovi’s conclusions concerning
Ito’s responsibilities for sending the transcripts are
insufficient to state a claim.
“[T]he tenet that a court must
accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions.”
Iqbal, 129 S. Ct. 1949.
Thus, “[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.”
20
Id. (citing Twombly, 550 U.S. at 555).
Partovi’s claims against
Ito must also be DISMISSED for failure to state a claim.
IV.
CONCLUSION
Defendants’ Motion to Dismiss is GRANTED and Partovi’s
Complaint and action are DISMISSED without leave to amend.
See
Neitzke v. Williams, 490 U.S. 319, 327 (1989) (a court may
exercise its discretion and deny leave to amend when it is clear
that the plaintiff cannot allege any set of facts that would
entitle him or her to relief); Lopez, 203 F.3d at 1129 (“Courts
are not required to grant leave to amend if a complaint lacks
merit entirely.”).
The Clerk is DIRECTED to enter judgment and close the
file.
In light of Partovi’s history of frivolous filings and
litigation, the court concludes that any appeal of this action
would be frivolous and not taken in good faith.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, December 16, 2011.
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge
Partovi v. Beamer Civ. No. 10-00689 SOM/KSC; Order Granting Defendants’ Motion to
Dismiss; psas/ords/dmp/2011/Partovi 10-689 final (grt m dsm 12(b)(1 & (b)(6))
21
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