Bakhtiari v. Burris et al

Filing 8

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [ECF No. 2 ] is GRANTED. IT IS FURTHER ORDERED that plaintiff's "motion for praecipe and service of process" is DENIED. [ECF No. 4 ] IT IS FURTHER ORDERED that plaintiff's motion for preliminary injunction is DENIED. [ECF No. 5 ] IT IS FURTHER ORDERED that plaintiff's motion for an emergency hearing on his motion for preliminary injunction is DENIED. [ECF No. 6 ] An Order of Dismissal will accompany this Memorandum and Order. Signed by District Judge Ronnie L. White on 8/27/2018. (AFC)

UNITED ST ATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

ALIREZA BAKHTIARI,

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Plaintiff,
V.

DOUG BURRIS, et al.,
Defendants.

No. 4:18-CV-298-RLW

MEMORANDUM AND ORDER

This matter is before the Court upon the motion of plaintiff Alireza Bakhtiari for leave to
proceed in forma pauperis in this civil action. For the reasons explained below, the motion will
be granted, and this case will be dismissed.
Legal Standard on Initial Review

Under 28 U.S.C. § 1915(e)(2), the Court is required to dismiss a complaint filed in forma
pauperis if, inter alia, it is malicious, or it fails to state a claim upon which relief can be granted.
An action fails to state a claim upon which relief can be granted if it does not plead "enough

facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007). To determine whether an action fails to state a claim upon which relief
can be granted, the Court must engage in a two-step inquiry. First, the Court must identify the
allegations in the complaint that are not entitled to the presumption of truth. Ashcroft v. Iqbal,
556 U.S. 662, 679 (2009). These include "legal conclusions" and "[t]hreadbare recitals of the
elements of a cause of action [that are] supported by mere conclusory statements." Id. at 678.
Second, the Court must determine whether the complaint states a plausible claim for relief. Id. at
679. This is a "context-specific task that requires the reviewing court to draw on its judicial
experience and common sense." Id.

Pro se complaints are to be liberally construed, Estelle v. Gamble, 429 U.S. 97, 106
( 1976), but they still must allege facts which, if true, state a claim for relief as a matter of law.

Martin v. Aubuchon, 623 F.2d 1282, 1286 (8th Cir. 1980). Federal courts are not required to
"assume facts that are not alleged, just because an additional factual allegation would have
formed a stronger complaint." Stone v. Harry, 364 F.3d 912, 914-15 (8th Cir. 2004).
Plaintiff's Motion for Leave to Proceed In Forma Pauperis

As the Court noted in another of Mr. Bakhtiari's pro se cases, Bakhtiari v. Towey, et al.,
No. 4:18-CV-256-DDN (E.D. Mo. Aug. 22, 2018), the Court has serious reservations about the
veracity of plaintiffs averments in the financial affidavit he filed in support of the instant
motion. See Bakhtiari v. Towey, No. 4:18-CV-256-DDN, at ECF No. 8 ("It appears that plaintiff
may have misrepresented his current employment status on his financial affidavit form. Even if
he was not employed on the date he completed the form, he failed to disclose to the Court the
month and year of his prior employment, and it appears he was employed during the same month
he filed the complaint and completed the financial affidavit."). Having noted these reservations,
however, the Court will grant plaintiff leave to proceed in forma pauperis, and will review the
complaint pursuant to 28 U.S.C. § 1915(e)(2).
The Complaint

Plaintiff brings his claims in six counts for violations of his substantive and procedural
due process rights against defendant United States Probation Officers Doug Burris, Kanisha
DeJean, Timothy Goehring, and Julie O'Keefe.

He sues all defendants in their official

capacities.
Plaintiff is currently serving a three-year term of federal supervised release, following 51
months' imprisonment on felony charges of corruptly attempting to obstruct, influence and

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impede an official proceeding in violation of 18 U.S.C. § 1512(c)(2). See US. v. Bakhtiari, No.
4:12-cr-97-ERW (E.D. Mo. 2012). 1 He alleges he is an analytical chemist, and defendant
probation officers are not allowing him to resume his employment with his company, Yantra
Group LLC, under the terms of his supervised release. Specifically, plaintiff states that he needs
to travel to South Carolina to attend interviews with clients of Yantra Group LLC. He also states
that he sought employment in Chicago and North Carolina, and defendants forbade him to travel
to these locations because of the terms of his supervised release. 2
In the first paragraph of his complaint, plaintiff states,
This is not a sentencing claim. This is not an action asking for modification of
supervised release conditions. This is a stand-alone cause of action raising
substantive constitutional challenges to the actions and decisions of the agents of
federal government.
Compl.

at~

1 (emphasis in original).

Discussion
Plaintiff alleges all four defendants are United States probation officers, sued in their
official capacities. Because he is "raising substantive constitutional challenges to [their] actions
and decisions," the Court construes the complaint as one brought pursuant to Bivens v. Six

Unknown Fed. Agents, 403 U.S. 388 (1971) (private right of action may be implied from the
Constitution for allegations of constitutional violations made against federal employees).
A suit against a federal officer in his or her official capacity is a suit against the federal
government itself. See Buford v. Runyon, 160 F.3d 1199, 1203 & n.3 (8th Cir. 1998). "It is well
1

For background as to plaintiffs extensive litigation history, see Bakhtiari v. Towey, 4:18-CV256-DDN (E.D. Mo. Aug. 22, 2018) (dismissing plaintiffs complaint as malicious and noting
"plaintiffs shocking and longstanding pattern of abusive litigation before this Court.")
2

Plaintiff states that Hon. Judge Buckles "authorized plaintiff to participate in this employment"
at hearings on July 11, 2012 and August 7, 2012. These hearings did not concern plaintiffs
supervised release, but rather concerned plaintiffs bond conditions in his criminal case. Judge
Buckles allowed plaintiff to travel to the Western District of Missouri, where his wife lived, and
allowed one five-day trip to San Diego, California.
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settled that a Bivens action cannot be prosecuted against the United States and its agencies
because of sovereign immunity."

Id.

Absent a waiver, sovereign immunity automatically

shields the federal government from suit. See FD.IC v. Meyer, 510 U.S. 471, 475 (1994).
"Sovereign immunity is jurisdictional in nature. Indeed the terms of [the United States'] consent
to be sued in any court define that court's jurisdiction to entertain the suit." Id.
The United States has not waived its sovereign immunity to suit in a Bivens action. See
Buford, 160 F.3d at 1203.

Therefore, plaintiffs' claims against defendants in their official

capacities are barred by sovereign immunity, and will be dismissed. Because plaintiff has sued
all defendants only in their official capacities, plaintiffs case will be dismissed.
Accordingly,
IT IS HEREBY ORDERED that plaintiffs motion to proceed in forma pauperis [ECF

No. 2] is GRANTED.
IT IS FURTHER ORDERED that plaintiffs "motion for praecipe and service of

process" is DENIED. [ECF No. 4]
IT IS FURTHER ORDERED that plaintiffs motion for preliminary injunction is
DENIED. [ECF No. 5]
IT IS FURTHER ORDERED that plaintiffs motion for an emergency hearing on his

motion for preliminary injunction is DENIED. [ECF No. 6]
An Order ofD~ssal will accompany this Memorandum and Order.

Dated thisil_d.';y of August, 2018.

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UNITED STATES DISTRICT JUDGE

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