Davis v. Van Hook et al

Filing 5

MEMORANDUM RULING re 1 Complaint filed by Brian Davis. Signed by Judge Elizabeth E Foote on 3/25/2014. (crt,Keifer, K)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
BRIAN DAVIS

CIVIL NO. 5:13-3277

VERSUS

JUDGE ELIZABETH E. FOOTE

ALEXANDER VAN HOOK, ET AL

MAGISTRATE JUDGE HORNSBY

MEMORANDUM RULING
Brian Davis (“Plaintiff”) sets out a claim for injunctive and monetary relief,
alleging Alexander Van Hook, an Assistant U.S. Attorney, “malicious[ly] prosecut[ed]”
and exacted a guilty plea from the Plaintiff solely through the unconstitutional use of a
“tainted” confidential informant, Frederick D. McDaniel. [Record Document 1, pp. 3-4].
Also named as a Defendant is Steve Glassell, the Plaintiff’s criminal defense attorney.
While the clerk’s docket of this matter lists Mr. McDaniel as a Defendant, a close
reading of the complaint reveals the Plaintiff does not intend to sue Mr. McDaniel but
only mentions him to explain the basis for his claims against Mr. Van Hook and Mr.
Glassell. For the following reasons, the Court hereby ORDERS that the Plaintiff’s claim
against Steve Glassell be DISMISSED WITH PREJUDICE and that the Plaintiff’s claim
against Alexander Van Hook be DISMISSED WITHOUT PREJUDICE.
I.

Background
In this action, Plaintiff argues the Defendants, Mr. Van Hook, the First Assistant

U.S. Attorney, and Mr. Glassell, the Plaintiff’s defense attorney, violated his

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constitutional rights and asserts a claim against them pursuant to Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999
(1971).1 The Plaintiff demands the Court award him immediate release and
“$60,000,000 million [sic] dollars for mental anguish and pain and suffering.” [Record
Document 1, p. 6].
On November 4, 2013, Plaintiff entered a conditional plea to one count of
conspiracy to distribute cocaine and crack cocaine, as well as two counts of distribution
of crack cocaine.2 According to the Plaintiff, the criminal charges against him depended
“solely” on Mr. McDaniel’s alleged purchase of cocaine and crack cocaine from him. Id.
at pp. 3-5. However, the Plaintiff claims Mr. Van Hook admitted in court that Mr.
McDaniel “did not go through the proper training requirements prior to aidding [sic] law
enforcement agents in undercover drug buys,” which, the Plaintiff argues, “tainted” the
informant. Id. at p. 4. The Plaintiff contends Mr. Van Hook “disregarded his ‘Ethical

The Plaintiff filed his complaint on the form provided for prisoners to file actions
under 42 U.S.C. § 1983, but he struck the language referring to § 1983 and wrote
“BIVENS LAW CLAIM.” [Record Document 1, p. 1].
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See United States v. Ashton, et al, Criminal Docket No. 5:13-cr-00038-03 (W.D.
La) [Record Document 124, p. 1]. The conditional guilty plea reserved the Plaintiff’s
right to have an appellate court review the district court’s ruling regarding the
admissibility of testimony from Frederick McDaniel, the Government’s confidential
informant. Ashton, Criminal Docket No. 5:13-cr-00038-03 (W.D. La) [Record Document
143, p. 1]. In a letter, Steve Glassell explained to the Plaintiff that he can appeal the
court’s ruling regarding the confidential informant’s testimony to the Fifth Circuit after
sentencing. Ashton, Criminal Docket No. 5:13-cr-00038-03 (W.D. La) [Record
Document 147-1, p. 1]. The Plaintiff was committed to the custody of the Bureau of
Prisons for a term of 120 months on March 4, 2014. Ashton, Criminal Docket No. 5:13cr-00038-03 (W.D. La) [Record Document 158, p. 1].
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Responsibilities’ pursuant to the (ABA), and unlawfully concealed exculpatory evidence”
related to the use of an informant. Id.
The Plaintiff alleges that on November 10, 2013, he provided Mr. Glassell with a
“Formal Notice of Withdrawal” of the guilty plea, but Mr. Glassell refused to file said
document, which led the Plaintiff to submit his own Motion To Withdraw the Guilty Plea.
Id. at p. 5. Judge Walter denied the Plaintiff’s motion.3
Prior to the Plaintiff’s guilty plea and the instant suit, the Plaintiff filed a similar
action in Davis v. Marak, 2013 WL 4044911 (W.D. La. Aug. 8, 2013), arising out of the
same criminal prosecution discussed in the Plaintiff’s complaint before this Court. There,
another district court for the Western District of Louisiana dismissed a Bivens action
brought by the Plaintiff against Betty Marak (the Plaintiff’s first criminal defense
attorney), the investigator in the Plaintiff’s criminal trial, the Sheriff of DeSoto Parish,
and unknown federal agents. Davis, 2013 WL 4044911 at *3. The Plaintiff’s Bivens
action against the aforesaid persons argued the following: Mr. McDaniel’s status as a
convicted felon barred the admission of drugs purchased from the Plaintiff into
evidence; Mrs. Marak, a public defender, conspired with the Government against the
Plaintiff and refused to file a motion to suppress the cocaine based on the Plaintiff’s
theory; and, the Sheriff of DeSoto Parish was liable for his subordinates’
Ashton, Criminal Docket No. 5:13-cr-00038-03 (W.D. La) [Record Document
143, p. 1]. After the court denied the Plaintiff’s motion, the Plaintiff wrote a letter to the
Clerk of Court to explain that his attorney was “ineffective” and conspiring with the
federal government to deprive him of his rights. Ashton, Criminal Docket No. 5:13-cr00038-03 (W.D. La) [Record Document 147, p. 1]. The letter is not docketed as an
appeal of the district court’s denial of the Plaintiff’s motion. Id.
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unconstitutional actions because he failed to properly train them. Id. at *1. Judge Hicks
dismissed with prejudice all claims against employees of the Federal Public Defender’s
Office but stayed the remaining claims pending the Plaintiff’s sentencing. Id. at *3.4
II.

Bivens Claim Against the Plaintiff’s Defense Attorney
A Bivens claim requires a showing that the defendant was a federal officer acting

under color of federal law. Federal public defenders and other attorneys appointed by a
federal court to represent a defendant in a federal criminal prosecution are not federal
officers for purposes of a Bivens-type claim. They do not act on behalf of the
government, but rather serve the public by advancing the undivided interests of their
clients. See Allred v. McCaughey, 257 Fed. App’x. 91, 92-93 (10th Cir. 2007) (collecting
cases); Haley v. Walker, 751 F.2d 284, 285 (8th Cir. 1984) (“an attorney appointed by
a federal court is not a federal officer for purposes of a Bivens-type action.”); Bradford
v. Shankman, 772 F.2d 905 at *1 (6th Cir. 1985) (“a private attorney and a federal
public defender do not act under color of federal law for purposes of a Bivens action.”);
Cox v. Hellerstein, 685 F.2d 1098, 1099 (9th Cir. 1982) (“a public defender does not act
under color of federal law in performing the identical functions as a lawyer to an
indigent defendant in a federal criminal proceeding.”); Sistrunk v. Breedy, No. 11-889,
2011 WL 2976471 at *2, n.6 (E.D. La. June 22, 2011) (“A federal public defender is
neither a state actor for purposes of § 1983 nor a federal officer for purposes of
Bivens.”). In this case, Mr. Glassell acted only on the Plaintiff’s behalf as his attorney,
Davis v. Marak remains administratively closed and is on appeal to the Fifth

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Circuit.

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not on behalf of the Government or under color of federal law. Thus, the Plaintiff has
no viable Bivens claim against Mr. Glassell, and that claim must be dismissed.
III.

Bivens Claim Against the Prosecutor
The remaining allegations in the Plaintiff’s complaint pertain to prosecutorial

misconduct and evidence gathering. In Heck v. Humphrey, 512 U.S. 477, 114 S. Ct.
2364 (1994), the Supreme Court held that, in order to recover damages for an allegedly
unconstitutional conviction, or for “harm caused by actions whose unlawfulness would
render a conviction or sentence invalid,” a prisoner must show that the conviction or
sentence has been “reversed on direct appeal, expunged by executive order, declared
invalid by a state tribunal authorized to make such determination, or called into
question by a federal court's issuance of a writ of habeas corpus.” 512 U.S. at 486-487.
Heck was a 42 U.S.C. § 1983 case, but its rule applies with equal force to Bivens
claims. See Cardona v. United States, 191 Fed. App’x. 327, 328 (5th Cir. 2006)
(dismissing a Bivens claim against federal prosecutors pursuant to Heck); Bounds v.
U.S. District Court, No. 06-0233, 2007 WL 1169377, at *7 (W.D. La. April 18, 2007)
(“Heck was a Section 1983 case, but its rule applies with equal force to Bivens
claims.”). Heck is applicable to claims for injunctive or declaratory relief which, if
granted, would necessarily imply the plaintiff’s conviction or sentence is invalid. See
Kutzner v. Montgomery County, 303 F.3d 339, 340–41 (5th Cir. 2002), overruled on
other grounds by Skinner v. Switzer, --- U.S. ---, 131 S. Ct. 1289 (2011). Claims for
injunctive, declaratory, and monetary relief that attack a conviction or guilty plea that

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remains in force are barred under Heck as premature. See Summers v. Eidson, 206
Fed. App'x 321, 323 (5th Cir. 2006) (Heck “applies to injunctive as well as monetary
relief.”); Mitchell v. Lanehart, 232 F.3d 211, 211 (5th Cir. 2000) (holding that Heck bars
a 42 U.S.C. § 1983 action alleging that the lack of effective assistance of counsel
resulted in an unknowing and involuntary guilty plea when the plaintiff fails to show his
conviction had been reversed, expunged, declared invalid, or called into question. Here,
the Plaintiff’s claim against Mr. Van Hook arises from his allegedly wrongful prosecution
and conviction, a fact which implies that the Plaintiff’s criminal conviction is invalid.
Because the Plaintiff does not show his criminal conviction has been set aside, his
Bivens claim is premature and therefore barred under Heck. Accordingly, this claim
must be dismissed.
IV.

Conclusion
For the foregoing reasons,
IT IS ORDERED that the Plaintiff’s claim against Steve Glassell be DISMISSED

WITH PREJUDICE.
IT IS FURTHER ORDERED that the Plaintiff’s claim against Alexander Van
Hook be DISMISSED WITHOUT PREJUDICE.
THUS DONE AND SIGNED this 25th day of March, 2014.

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