Veney v. Fine et al

Filing 3

MEMORANDUM OPINION. Signed by Judge Richard D Bennett on 1/8/2016. (c/m 1/8/16)(krs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
LEMOYNE VENEY, #54152-037
Plaintiff,
v
TAMERA LYNN FINE,
MARK WALTER CROOKS,
MANISHA GARNER,
BRENDAN HURSON,
ROBERT SPELKE,
Defendants.

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Civil Action No. RDB-15-3965
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MEMORANDUM OPINION

Pending is a Bivens1 action filed by self-represented Plaintiff Lemoyne Veney, an
inmate at Federal Correctional Institution-Morgantown. Veney claims Defendants violated his
constitutional rights, and their actions amounted to fraud, misconduct, and gross
misinterpretation of federal law. (ECF 1, p. 5).2 Veney brings this action against Defendants in
their official and individual capacities and seeks $7 million in damages. For reasons to follow,
this case shall be DISMISSED.
Each Defendant was involved in Veney’s criminal proceedings. Tamara Lynn Fine and
Mark Walter Crooks are Assistant United States Attorneys who prosecuted Veney. Brendan
Hurson is an attorney in the Office of the Federal Public Defender who represented Veney
during his criminal proceedings. Robert Spelke was Veney’s counsel at sentencing. Manisha
Garner is a United States Probation Officer.
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See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971); see also 28
U.S.C. § 1331.
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Veney does not specify what constitutional rights or federal law he believes were violated by Defendants. His
generally stated claims of fraud, misconduct, and “gross interpretation of law” lack factual and legal predicate.

Veney has requested and will be granted leave to proceed in forma pauperis. (ECF 2). As
such, his claims are reviewed pursuant to 28 U.S.C. §1915A. This provision requires courts to
screen civil actions brought by prisoners, and dismiss complaints which fail to state a claim upon
which relief may be granted or seek monetary relief from a defendant or defendants immune
from such relief. This Court will dismiss the Complaint pursuant to this standard.
BACKGROUND
A. PROCEDURAL HISTORY
On February 14, 2013, Veney pleaded guilty to bank fraud conspiracy and aggravated
identity theft, violations of 18 U.S.C. §§ 1349 and 1028A. He was sentenced to a total term of
51 months of imprisonment and supervised release for a total term of five years, and ordered to
pay restitution. United States v. Veney, et al., Criminal Action No. RDB-11-691 (D. Md.).
On July 7, 2014, Veney filed a Motion to Vacate, Set Aside or Correct Sentence pursuant
to 28 U.S.C. §2255, raising claims of Sixth Amendment and due process violations. Veney v.
United States, Civil Action No. RDB-14-2324 (D. Md.); related Criminal Action, United States
v. Veney, et al., RDB-11-691 (D. Md.). In the Motion to Vacate, Veney alleged Spelke provided
ineffective assistance of counsel and Hurson deliberately withheld from him exculpatory
information. The Government has filed a Response to the Motion, seeking denial and dismissal
of the Motion as time-barred and for lack of merit.3 United States v. Veney, et al., Criminal
Action No. RDB-11-691 (D. Md.) (ECF 134). In his Reply, Veney claims Crooks committed
prosecutorial misconduct and violated his right to due process, which “led to the ‘PSR [PreSentencing Report] writer’ and ultimately the District Court Judge to miscalculate the proper

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In the §2255 proceeding, the Government has submitted an affidavit executed by Spelke in which he attests that at
no time did Veney direct him to file an appeal of his sentence or conviction. See United States v. Veney, et al.,
Criminal Action No. RDB-11-691 (ECF 134-1). Spelke attests that he met with Veney to highlight the appeal
waiver provisions of the plea agreement. Id; see also ECF 134-2 (plea agreement).

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sentencing guideline ranges, as well as brought about an inapplicable conviction.” (ECF 144, p.
2). The Motion to Vacate remains under review.
B. VENEY’S CLAIMS AGAINST DEFENDANTS
In this Complaint, Veney claims Hurson “rendered constitutionally deficient counsel,”
based on a “defective indictment.” (ECF 1, pp. 5-6). He claims Hurson failed to formulate a
“defense strategy” and coerced him into unknowingly and unintelligently entering his plea. Id. at
6.
Veney blames Robert Spelke, his sentencing counsel, for providing constitutionally
deficient counsel by failing to object to the PSI [Pre-Sentencing Investigation Report], though he
was aware of errors and “actual fraud committed by the government which was reflected in the
plea agreement factual stipulation.” Id. at 10. Veney claims he instructed Spelke to file an
appeal on his behalf, but Spelke failed to do so.
Veney accuses Tamara Fine of prosecutorial misconduct. Id. at 6-7. He faults Fine for
summarily indicting him without conducting substantive investigation into the facts of his state
criminal proceeding. He asserts Fine knowingly added a false statement of events in the
indictment, and knowingly “misjoined” conduct, victims, and losses from unconnected activities
that occurred in separate states during different time periods and with separate actors who never
made any agreement to conspire. Id.
Veney claims Mark Crooks knowingly and deliberately withheld exculpatory evidence,
including a recovered check, a bank statement, and investigative notes from government witness
Detective Warren Brooks. Id. at 7-8. He also alleges Crooks deliberately withheld the identity
and other information relating to the government’s “mystery” codefendant, referred to a “John
Doe, #1,” and provided false statements and fraudulently prepared spreadsheets to give the

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appearance of checks negotiated within the scope of the conspiracy. Veney claims Crooks
deliberately “misjoined the actual federal bank fraud committed by the government’s ‘mystery’
codefendant ‘John Doe # 1” to him, even though Crooks knew there was no connection. Id. at 7.
Veney claims Crook failed to alert this Court to errors in the PSI. Id. at 8.
Veney blames Manisha Garner for failing to properly compile his PSI Report, and claims
she failed to conduct a genuine and independent investigation of the facts. Instead, Garner
copied what was provided by the government, basing her sentencing recommendations “on her
own misunderstanding of federal law.” Id. at 9. Veney claims that Garner acknowledged there
were errors in the Report, but informed him that she no longer had the file and he needed to
contact his attorney concerning the errors. Id.
DISCUSSION
In order to bring a Bivens action, 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; see also, Fed.
Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 484–86 (1994); Okoro v. Scibana, 63 F. App'x. 182
(6th Cir. 2003). Veney does not allege that his attorneys, Burson or Spelke, were acting under
color of law. Private counsel are not federal officers for the purposes of a Bivens action. See
Vermont v. Brillon 556 U.S. 81 (2009); Polk County v. Dodson, 454 U.S. 312, 325 (1981)
(stating “a public defender does not act under color of state law when performing a lawyer's
traditional functions as counsel to a defendant in a criminal proceeding.”); Hall v. Quillen, 631
F.2d 1154, 1155–56 (4th Cir. 1980) (attorneys, including public defenders and attorneys
appointed by the State, do not act under color of state law and are not state actors); Cox v.
Hellerstein, 685 F.2d 1098 (9th Cir.1982) (affirming dismissal of Bivens action against an
assistant federal defender for providing ineffective assistance because “[i]f a public defender

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does not act under color of state law in representing an indigent defendant in a state criminal
proceeding, it follows that 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”); Anderson v. Sonenberg, 111 F.3d 962 (D.C. Cir. 1997) (“[P]ublic defenders and
other attorneys appointed to represent defendants in federal proceedings are not federal officials
for purposes of Bivens.”). Veney fails to state a claim against either Hurson or Spelke.
Accordingly, the claims against Burson and Spelke will be dismissed.
Further, principles of immunity apply to the federal actors sued in this proceeding. The
Supreme Court has held that prosecutors, when acting within the scope of their duties, have
absolute immunity under 42 U.S.C. §1983 from damages liability for conduct “intimately
associated with the judicial phase of the criminal process.” Imbler v. Pachtman, 424 U.S. 409,
430 (1976); Lyles v. Sparks, 79 F.3d 372, 376-377, n. 4 (4th Cir. 1996) (stating that in Bivens
actions prosecutors enjoy absolute immunity for their actions intimately associated with the
judicial phase of the criminal process). Absolute immunity is afforded prosecutors when they
are acting “within the advocate's role.” Dababnah v. Keller-Burnside, 208 F.3d 467, 470 (2000)
(quoting Buckley v. Fitzsimmons, 509 U.S. 259, 278 (1993)). 4
In Imbler, the Court stated that a prosecutor, acting within the scope of his or her duties
in initiating and prosecuting a case, has the same absolute immunity from liability for damages
for alleged violation of another's constitutional right, notwithstanding that such immunity leaves
the genuinely wronged defendant without civil redress against a prosecutor whose malicious or

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The reasoning behind this principle is that a prosecutor performs his or her functions “under the watchful eye of
the judge and in the shadow of the ever-present possibility of judge-imposed sanctions.” Dababnah v. Keller–
Burnside, 208 F.3d 467, 471 (4th Cir. 2000) (quoting Marrero v. City of Hialeah, 625 F.2d 499, 509 (5th Cir.
1980)). In this way, attaching absolute immunity to these functions thus does not protect the prosecutor at the
expense of individual rights and liberties. Dababnah, 208 F.3d at 471. Instances of prosecutorial abuse are subject
to criminal and professional sanction. Id. at 470.

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dishonest action deprives him of liberty. Imbler, 424 U.S. 427. The Court explained that if the
prosecutor had only a qualified immunity, the threat of litigation would undermine performance
of the prosecutor’s duties because not only would public trust of the prosecutor's office suffer if
he or she were constrained in making decisions by potential liability for damages, but, if the
prosecutor could be made to answer in court each time he was charged with wrongdoing,
attention would be diverted from the duty of enforcing criminal laws. Id. Noting that prosecutors
often act under strict constraints of time and a prosecutor may makes decisions that engender
colorable claims of constitutional deprivation, the Court reasoned that defending such decisions
could impose unique and intolerable burdens upon a prosecutor. Id. at 426. Therefore, the Court
concluded that permitting only qualified immunity to a prosecutor could have an adverse effect
upon the functioning of the criminal justice system. Id. at 426-27.
To be sure, absolute prosecutorial immunity may not apply when a prosecutor is engaged
in other tasks, such as investigative or administrative assignments. Id. at 30; Harlow v.
Fitzgerald, 457 U.S. 800, 811 n. 16 (1982); Van De Kamp v. Goldstein, 555 U.S. 335, 342-343
(2009). Therefore, when asked to determine whether a prosecutor is entitled to absolute
immunity, a court examines “the nature of the function performed, not the identity of the actor
who performed it.” Forrester v. White, 484 U.S. 219, 229 (1988). Preparation of the indictment
is clearly within the ambit of the protection contemplated by absolute judicial immunity. See
Kalina v. Fletcher, 522 U.S. 118 (1997) (upholding absolute immunity for prosecutor's actions
related to the preparation and filing of charging documents); Buckley v. Fitzsimmons, 509 U.S.
259, 273 (1993) (holding that a prosecutor would be entitled to absolute immunity for “the
professional evaluation of the evidence assembled by the police and appropriate preparation for
its presentation at trial or before a grand jury after a decision to seek an indictment has been

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made”). Veney’s claims against Crooks and Fine directly challenge their preparation of the
indictment and their actions at trial and sentencing, all of which are prosecutorial functions
clearly within the judicial phase of the criminal process. Crooks and Fine were working within
the scope of their duties in initiating and pursuing a criminal prosecution against Veney, and they
are within the ambit of absolute immunity. Consequently, the claims against Fine and Crooks
shall be dismissed with prejudice.
Similarly, probation officers such Defendant Garner is also entitled to immunity from
suit. See Gant v. United States Probation Office, 994 F.Supp. 729, 733 (S.D. W.Va. 1998) (“One
function for which probation officers uniformly have been granted absolute immunity is the
preparation of presentence reports”) (collecting cases). As the Gant court explained, “probation
officers act ‘as an arm of the court’ when amassing and providing the court enough information
to meaningfully perform its sentencing obligations.” Id. (quoting Dorman v. Higgins, 821 F.2d
133, 137 (2d Cir. 1987)). Accordingly, the claims against Garner shall be dismissed.
CONCLUSION
For these reasons, this case will be dismissed. A separate Order follows.

January 8, 2016
Date

____/s/_____________________________
RICHARD D. BENNETT
UNITED STATES DISTRICT JUDGE

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