Borden et al v. Federal Defender's Office et al

Filing 38

MEMORANDUM OPINION by Judge Greg N. Stivers. For the reasons herein, on initial screening of the complaint and its amendment pursuant to 28 U.S.C. § 1915A, the action will be dismissed by separate Order. cc: Plaintiffs, pro se; Defendants (JLS)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION
JASON DEAN BORDEN et al.

PLAINTIFFS

v.

CIVIL ACTION NO. 1:15CV-P29-GNS

FEDERAL DEFENDERS OFFICE et al.

DEFENDANTS

MEMORANDUM OPINION
Plaintiff Jason Dean Borden,1 a federal pretrial detainee incarcerated at the Grayson
County Detention Center, filed a pro se complaint (DN 1) under Bivens v. Six Unknown Fed.
Narcotics Agents against two Defendants in their individual and official capacities: “Federal
Defenders Office” and “U.S. District Court Pros. Office.” Thereafter, Borden filed an
amendment (DN 15) to the complaint, seeking also to bring his claims under the Americans with
Disabilities Act (ADA), the Religious Land Use and Institutionalized Persons Act (RLUIPA),
and the Federal Tort Claims Act (FTCA). He then filed a motion (DN 16) seeking to clarify that
“indeed Patrick Bouldin facially is known as Federal Defenders Office [Defendant].” The Court
granted (DN 36) the motion and directed the Clerk of Court to add Patrick Bouldin as a
Defendant and to terminate the “Federal Defenders Office” as a Defendant.
This matter is currently before the Court on initial screening of the complaint and its
amendment pursuant to 28 U.S.C. § 1915A. For the reasons that follow, the action will be
dismissed.
I.
In the complaint, Borden (who also refers to himself as “Movant”) alleges as follows:
The Movant along with his Paternal Adult Payee “Mother” “Nancy Sue
Douglas” here by swears and confirms that On or Before Feb 20, 2015 the
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Plaintiff Nancy Sue Douglas has been dismissed by separate Memorandum and Order (DN 24) pursuant
to Fed. R. Civ. P. 41(b).

U.S. District Court Prosecutor used direct conflict of counsel, Direct contact
with family of Movant to force and/or use extreme illegal (Constitution
Rights Illegal Violations) to confront The Adult Payee, threaten the Adult
Payee via direct cohersion of Guilty Plea, while being in Tears the Pros. Did
in fact by force of her office threaten The Adult Payee for the Mentally
Disabled Movant, in comments, in tears, and with extreme malicious intent.
On or After this same contact with the Movants Adult Payee listed in this
Suit, the Federal Defender Contacted the same Adult Payee for the Movant
and with same malicious intent threaten The Movant and the Adult Payee to
Enter Plea of Guilty, same as U.S. District Court Pros. Attempted to Force
Movant to Enter Plea of Guilty by using his Adult Payee who was
threatened “very seriously.”
Wherefore the Movant hereby swears and confirms that it is now required,
and this serious violation requires this Court to enter on behalf of The
Movant and his Adult Payee an appointed advocacy. A Blond/Male Federal
Defender working out of The listed address with the U.S. District Court
Pros. Has used their official influence with malicious intentions, and in their
unofficial purpose both cried and attempted to cohearse the Movants Adult
Payee to obtain a Guilty Plea Agreement, when in fact the 100% mentally
Disabled (Neuropsychological defects) of the Movant and the Rights of his
Adult Payee, who isnt acting as counsel, who had no Federal Court
experience, who is threatened an now needs Appointed counsel for the
Nashville Tenn. U.S. District Court Defenders as well as the Movant’s
Appointed Counsel who has committed these acts of violence, and illegal
violations of the Rights of the Movant, Adult Payee, and/or all parties who
have not been indicted, and a evidentiary hearing is needed as well as
Vacatur here of all charges against the Movant, with Appointment of Jerry
Gonzalez Consel for Movant and Adult Payee.
As relief, Borden seeks monetary and punitive damages and injunctions in the form of
vacatur of all charges against him and appointment of counsel Jerry Gonzalez to represent him.
II.
Because Plaintiff is a prisoner seeking relief against governmental entities, officers,
and/or employees, this Court must review the instant action under 28 U.S.C. § 1915A. Under
§ 1915A, the trial court must review the complaint and dismiss the complaint, or any portion of
the complaint, if the court determines that it is frivolous or malicious, fails to state a claim upon
which relief may be granted, or seeks monetary relief from a defendant who is immune from
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such relief. See § 1915A(b)(1), (2); McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir.
1997), overruled on other grounds by Jones v. Bock, 549 U.S. 199 (2007).
A claim is legally frivolous when it lacks an arguable basis either in law or in fact.
Neitzke v. Williams, 490 U.S. 319, 325 (1989). The trial court may, therefore, dismiss a claim as
frivolous where it is based on an indisputably meritless legal theory or where the factual
contentions are clearly baseless. Id. at 327. In order to survive dismissal for failure to state a
claim, “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, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “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.” Id. (citing Twombly, 550 U.S. at 556).
“[A] district court must (1) view the complaint in the light most favorable to the plaintiff
and (2) take all well-pleaded factual allegations as true.” Tackett v. M & G Polymers, USA, LLC,
561 F.3d 478, 488 (6th Cir. 2009) (citing Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009)
(citations omitted)). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of
the elements of a cause of action will not do.’ Nor does a complaint suffice if it tenders ‘naked
assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 555, 557).
III.
A. Bivens Claims
In Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), the U.S. Supreme
Court “recognized for the first time an implied private action for damages against federal officers

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alleged to have violated a citizen’s constitutional rights.” Corr. Servs. Corp. v. Malesko, 534
U.S. 61, 66 (2001). “Such claims are the counterpart to suits under 42 U.S.C. § 1983 against
state officials who infringe plaintiffs’ federal constitutional or statutory rights,” Vector Research,
Inc. v. Howard & Howard Attorneys P.C., 76 F.3d 692, 698 (6th Cir. 1996), and decisional law
developed under § 1983 has been fully applied to Bivens suits. Butz v. Economou, 438 U.S. 478,
498-504 (1978).
Plaintiff sues Defendants in both their individual and official capacities. However, “a
Bivens claim may not be asserted against a federal officer in his official capacity.” Berger v.
Pierce, 933 F.2d 393, 397 (6th Cir. 1991). The Court, therefore, will dismiss the Bivens claims
brought against Defendants in their official capacity.
For the reasons that follow, the Court will also dismiss the Bivens claims brought against
Defendants in their individual capacity.
1. Defendant Bouldin
Defendant Bouldin is an assistant federal public defender, who the Court originally
appointed to represent Borden in his pending criminal action, 1:15CR-4-GNS-1.2 To state a
claim under Bivens, a plaintiff must allege that a federal officer acted under federal law to
deprive plaintiff of a constitutional right. Bivens, 403 U.S. at 389. A federal public defender,
however, is not a federal officer acting under color of federal law for purposes of a Bivens action.
See Polk Cty. v. Dodson, 454 U.S. 312, 320-21 (1981) (concluding that a public defender does
not act under color of state law for purposes of § 1983); Pagani-Gallego v. Escobedo, No. 971640, 1998 WL 381562, at *1 (6th Cir. June 23, 1998) (referencing Polk and concluding that just
as a court-appointed attorney is not a state actor under § 1983 that “an attorney appointed to
The Court has since relieved Defendant Bouldin of his appointment in Borden’s criminal action
and has appointed Borden other counsel.
2

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represent a criminal defendant pursuant to a federal statute is not a federal official for purposes
of a Bivens action”); Bradford v. Shankman, No. 85-5150, 1985 WL 13659, at *1 (6th Cir.
Aug. 8, 1985) (“[A] private attorney and a federal public defender do not act under color of
federal law for purposes of a Bivens action.”); Arnold v. Greeley, No. 2:14-CV-58, 2014 WL
1878914, at *3 (W.D. Mich. May 12, 2014) (“[C]ourts have held that a court-appointed attorney,
whether in state court or federal court, is not acting under color of law.”). Accordingly, the
Court will dismiss the Bivens claims against Defendant Bouldin.
2. Defendant Prosecutor
“[O]fficials enjoy absolute immunity from civil liability related to their performance of
‘prosecutorial’ functions.” Koubriti v. Convertino, 593 F.3d 459, 467 (6th Cir. 2010) (citing
Burns v. Reed, 500 U.S. 478, 486 (1991)). “Functions that serve as an ‘integral part of the
judicial process’ or that are ‘intimately associated with the judicial process’ are absolutely
immune from civil suits.” Id. (quoting Imbler v. Pachtman, 424 U.S. 409, 430 (1976)).
“Meanwhile, functions which are more ‘investigative’ or ‘administrative’ in nature, because they
are more removed from the judicial process, are subject only to qualified immunity.” Id.
(quoting Burns, 500 U.S. at 486).
Turning to the issue at hand, courts also have held that “plea bargains are ‘so intimately
associated with the prosecutor’s role as an advocate of the State in the judicial process as to
warrant absolute immunity.’” Rouse v. Stacy, 478 F. App’x 945, 951 (6th Cir. 2012) (quoting
Cady v. Arenac Cty., 574 F.3d 334, 341 (6th Cir. 2009)); Taylor v. Kavanagh, 492 F. Supp. 386,
390 (S.D.N.Y. 1980) (“If damage actions are allowed against prosecutors for activities in the
plea bargaining process, this would present a substantial threat of unfounded, malicious suits.
Just as with other phases of a prosecutor’s activities, the detrimental effect of unfounded damage
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suits would outweigh any salutary effect of those with merit.”), aff’d, 640 F.2d 450 (2d Cir.
1981). Despite Plaintiff’s broad allegations that the prosecutor “threatened” him with “malicious
intent” to enter a guilty plea, the Court finds that the Defendant prosecutor is entitled to absolute
prosecutorial immunity for his or her actions during plea negotiations with Plaintiff. See Rouse,
478 F. App’x at 951) (“[I]t is beyond question that a prosecutor’s plea bargaining activities,
regardless of motive, warrant absolute immunity.”).
Consequently, the Bivens claims against the Defendant prosecutor will be dismissed.
3. Injunctive Relief
Because Bivens claims are claims for damages, the Bivens claims for injunctive relief
cannot lie. Even if they could, Plaintiff’s request for vacatur of all charges against him and
appointment of counsel Jerry Gonzalez to represent him must be dismissed. Plaintiff has a
criminal action, 1:15CR-4-GNS-1, currently pending against him. He cannot seek dismissal of
the criminal charges against him in this civil action. Moreover, to the extent he seeks
appointment of counsel in his criminal case, such a motion must be filed in the criminal case. To
the extent he seeks appointment of counsel in the instant civil action, the Court finds that the
complexity of the issues in this case does not necessitate the appointment of counsel and that the
documents filed by Plaintiff in this (and several of his other actions) reveals that, despite his
claimed neurological defects, he is sufficiently articulate and able to present his case to the
Court. The Court, therefore, finds that Plaintiff has not shown extraordinary circumstances
warranting appointment under 28 U.S.C. § 1915(e).
For these reasons, the Bivens claims for injunctive relief will be dismissed.

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B. ADA
Plaintiff fails to explain how Defendants allegedly violated the ADA and fails to cite to
any provision(s) of the Act. The Court concludes that Borden’s mention of a mental disability
and unspecified threats made by Defendants in the plea negotiation process is insufficient to state
a claim under the ADA. See Iqbal, 556 U.S. at 678 (“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.”). Although courts are to hold pro se pleadings
“to less stringent standards than formal pleadings drafted by lawyers,” Haines v. Kerner, 404
U.S. 519 (1972), this duty to be less stringent “does not require us to conjure up unpled
allegations,” McDonald v. Hall, 610 F.2d 16, 19 (1st Cir. 1979), or to create a claim for a
plaintiff. Clark v. Nat’l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975). To
command otherwise would require courts “to explore exhaustively all potential claims of a pro se
plaintiff, [and] would also transform the district court from its legitimate advisory role to the
improper role of an advocate seeking out the strongest arguments and most successful strategies
for a party.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Plaintiff’s purported claims under the ADA must therefore be dismissed.
C. FTCA
As to any FTCA claims Plaintiff seeks to bring, 28 U.S.C. § 2675(a) provides,
An action shall not be instituted upon a claim against the United States for
money damages for injury or loss of property or personal injury or death
caused by the negligent or wrongful act or omission of any employee of the
Government while acting within the scope of his office or employment,
unless the claimant shall have first presented the claim to the appropriate
Federal agency and his claim shall have been finally denied by the agency
in writing and sent by certified or registered mail.

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(emphasis added). Plaintiff, however, has not alleged exhaustion of administrative remedies
associated with that Act prior to bringing an action in federal court.3 The Court, therefore, will
dismiss Plaintiff’s FTCA claims without prejudice.
D. RLUIPA
RLUIPA prohibits prisons receiving federal funds from imposing “a substantial burden
on the religious exercise” of a prisoner unless prison officials can demonstrate that “imposition
of the burden on that person -- (1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C.
§ 2000cc-1(a). Clearly, this Act is inapplicable in this case, and the claims brought under it will
be dismissed.
The Court will enter a separate Order of dismissal consistent with this Memorandum
Opinion.
Date: December 7, 2015

Greg N. Stivers, Judge
United States District Court
cc:

Plaintiffs, pro se
Defendants
4416.005

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To a prematurely filed motion for summary judgment (DN 18), Plaintiff attaches an FTCA
claim form entitled “Claim for Damage, Injury, or Death.” The form is dated August 11, 2015, which is
after he filed the instant action, and it does not show that the administrative remedy process has been
completed.
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