Bey v. Fernandez et al

Filing 16

MEMORANDUM AND ORDER: For the reasons set forth in the attached memorandum and order, the Complaint is dismissed without prejudice for failure to state a claim on which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii). The Court grants Plai ntiff's request to proceed in forma pauperis solely for the purpose of this Order. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of any appeal. The Clerk's Office is respectfully directed to close this case and enter judgment accordingly. Ordered by Judge Pamela K. Chen on 3/2/2016. (Merin, Eric)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
X
TEHUTI BAT’Z ELOHIM BEY,
a/k/a ZACKARY HOWARD BLACK,
#18509-111,
Plaintiff,
MEMORANDUM & ORDER
Case No. 15-cv-7237 (PKC)

- against MICHAEL FERNANDEZ, JAMES HOLT,
JOHN DOE, and KEVEN TROWEL,
Defendants.
X
PAMELA K. CHEN, United States District Judge:

On October 7, 2015, Plaintiff Tehuti Bat’z Elohim Bey (“Bey” or “Plaintiff”), then
detained at the Metropolitan Detention Center in Brooklyn, New York but now incarcerated at FCI
Mendota in Mendota, California, filed this pro se action in the United States District Court for the
Northern District of California. By Order dated December 16, 2015, the action was transferred to
this Court. On February 15, 2016, Plaintiff complied with the filing requirements by submitting
his request to proceed in forma pauperis and prisoner authorization form. The Court grants
Plaintiff’s request to proceed in forma pauperis solely for the purpose of this Order and dismisses
Plaintiff’s Complaint without prejudice for the reasons set forth below.
BACKGROUND
On November 25, 2014, Plaintiff was convicted after a jury trial of two federal criminal
offenses, marijuana distribution conspiracy and money laundering conspiracy. He was sentenced
on September 16, 2015 to 120 months’ incarceration and five years’ supervised release. See United
States v. Black, 13-CR-316 (DLI), Dkt Nos. 176 (verdict sheet), 179, 207 (judgment). His appeal

of that conviction is pending in the United States Court of Appeals for the Second Circuit. United
States v. Black, No. 15-2942.
Bey’s criminal case originated with an investigation into a package containing
approximately 2000 grams of methylone, a controlled substance, sent from China to the United
States via the United States Postal Service. See United States v. Black, No. 13-CR-316 (DLI), Dkt.
No. 18 at 1-3. The investigation led to the arrest of Bey’s co-defendants on April 29, 2013, when
they and Bey went to retrieve the package at a United Postal Service store located at Broadway
and 115th Street in Manhattan. Bey evaded arrest that day, but was arrested, pursuant to a warrant,
in Richmond, California on July 2, 2013. He was removed to this district, and subsequently
arraigned in this Court on the complaint on July 30, 2013, and on the superseding indictment on
August 1, 2013. Two of the four charges of the superseding indictment were dismissed on
November 24, 2014, the third day of his trial.
In this Complaint, filed on October 7, 2015 1, less than one month after the September 16,
2015 sentencing, Plaintiff alleges that Homeland Security Special Agents Michael Fernandez and
James Holt, Assistant United States Attorney (“AUSA”) Kevin Trowel, who prosecuted Plaintiff,
and John Doe, an employee at Thrifty Rental Car Company from whom Plaintiff rented the car
implicated in the April 19, 2013 arrest of Bey’s co-conspirators, violated his constitutional rights
during his arrest, detention, and prosecution. Specifically, he alleges that Fernandez made false
statements to “mislead the court into believing that Plaintiff evaded arrest” and that Trowel also
made false allegations in court “in order to further deprive the plaintiff of his constitutional rights

1

Plaintiff actually signed the Complaint on September 9, 2015, a week before his
sentencing.
2

and aid defendants Holt, Fernandez, and Doe’s Conspiracy against Plaintiff’s rights.” (Compl. at
6.) 2 He seeks damages for the Defendants’ “use of fabricated evidence and misrepresentation of
facts to secure Plaintiff[’s] unlawful arrest, detention and prosecution.” (Id. at 7.)
STANDARD OF REVIEW
Under 28 U.S.C. § 1915A, a district court “shall review, before docketing, if feasible or, in
any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner
seeks redress from a governmental entity or officer or employee of a governmental entity.” 28
U.S.C. § 1915A. Upon review, a district court shall dismiss a prisoner’s complaint sua sponte if
the complaint is “frivolous, malicious, or fails to state a claim upon which relief may be granted;
or seeks monetary relief from a defendant who is immune from such relief.” Id.; Liner v. Goord,
196 F.3d 132, 134 & n.1 (2d Cir. 1999) (noting that under Prison Litigation Reform Act, sua sponte
dismissal of frivolous prisoner complaints is not only permitted but mandatory). Similarly, under
28 U.S.C. § 1915 (e)(2)(B), a district court shall dismiss an in forma pauperis action where it is
satisfied that the action “(i) is frivolous or malicious; (ii) fails to state a claim on which relief may
be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.”
Although courts must read pro se complaints with “special solicitude” and interpret them
to raise the “strongest arguments that they suggest,” Triestman v. Federal Bureau of Prisons, 470
F.3d 471, 474-76 (2d Cir. 2006) (internal quotations omitted) 3, a complaint must plead “enough

2

All citations refer to the pagination generated by the Court’s electronic docketing system
and not the document’s internal pagination.
3

The Court also construes Plaintiff’s pro se pleadings liberally because they allege civil
rights violations. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Sealed Plaintiff v. Sealed Defendant
#1, 537 F.3d 185, 191-93 (2d Cir. 2008).
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facts to state a claim to relief that is plausible on its face.” 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citation omitted). While “detailed
factual allegations” are not required, “[a] pleading that offers ‘labels and conclusions’ or ‘a
formulaic recitation of the elements of a cause of action will not do.’” Id. (quoting Twombly, 550
U.S. at 555). Similarly, a complaint is insufficient to state a claim “if it tenders ‘naked assertion[s]’
devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557).
DISCUSSION
Plaintiff files this Complaint pursuant to 42 U.S.C. § 1983. Section 1983 provides, in
pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to
be subjected, any citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for seeking redress.
Section 1983 “is not itself a source of substantive rights, but a method for vindicating federal
rights elsewhere conferred by those parts of the United States Constitution and federal statutes
that it describes.” Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979).
In order to maintain a § 1983 action, a plaintiff must allege both that the conduct
complained of was “committed by a person acting under color of state law” and “deprived a person
of rights, privileges or immunities secured by the Constitution or laws of the United States.”
Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994).

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I.

Claims Against Federal Defendants Are Barred by Heck v. Humphrey
Except for the John Doe defendant, the Complaint is brought against federal agency

employees. Thus, the Court construes it as an action pursuant to Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Bivens governs violations by persons
acting under color of federal law and is analogous to 42 U.S.C. § 1983, which governs actions
against persons acting under color of state law. See Tavarez v. Reno, 54 F.3d 109, 110 (2d Cir.
1995) (“federal courts have typically incorporated § 1983 law into Bivens actions.”).
“In a Bivens action, alleged victims of constitutional violations by federal officials may
recover damages despite the absence of any statute specifically conferring such a cause of action.”
Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir.1994). But, Bivens actions
are brought against federal officials in their individual capacities. See Carlson v. Green, 446 U.S.
14, 21 (1980); Dotson v. Griesa, 398 F.3d 156, 165–66 (2d Cir. 2005).
Here, Heck v. Humphrey bars Plaintiff’s claims that the two defendant DHS agents and an
AUSA falsely arrested and detained him and maliciously prosecuted him. 512 U.S. 477 (1994).
Under Heck, plaintiffs may not bring successful civil claims that would otherwise implicate the
validity of their criminal convictions until those convictions are vacated or otherwise invalidated.
Id. at 486-87. In Heck, the Supreme Court held that civil claims for damages arising from a
plaintiff’s criminal conviction are barred unless “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.”
Id. at 487. “Although it is well established that a civil action for damages may be asserted against
federal officials who violate certain clearly established constitutional rights . . . the Heck Court
recognized that requiring a plaintiff to demonstrate that the criminal proceeding terminated in his
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favor precludes the possibility of the claimant succeeding in the tort action after having been
convicted[.]” Abdel-Whab v. Orthopedic Ass’n of Dutchess, 415 F. Supp. 2d 293, 306 (S.D.N.Y.
2006) (internal citations and quotations omitted). Although Heck involved a § 1983 claim, the
Second Circuit has held that the rationale of Heck applies equally to Bivens actions such as
Plaintiff’s claim. See Tavarez v. Reno, 54 F.3d at 110; see also Maietta v. Artuz, 84 F.3d 100, 103
n.1 (2d Cir. 1996).
Here, Plaintiff’s convictions for conspiracy to distribute marijuana and money laundering
have not been reversed and his appeal is currently pending in the United States Court of Appeals
for the Second Circuit. United States v. Black, No. 15-2942. Accordingly, Plaintiff’s conviction
precludes a Bivens action, unless and until that conviction is overturned or otherwise invalidated,
or called into question by the issuance of a writ of habeas corpus. See Channer v. Mitchell, 43
F.3d 786, 787-88 (2d Cir. 1994) (affirming dismissal of Section 1983 claims under Heck where
plaintiff failed to establish that his conviction had been reversed); Cameron v. Fogarty, 806 F.2d
380, 386–89 (2d Cir. 1986) (dismissing section 1983 action for unlawful arrest because conviction
gave officers an absolute defense); Abdel-Whab v. Orthopedic Ass’n of Dutchess, 415 F. Supp. 2d
293, 306-07 (S.D.N.Y. 2006); Duamutef v. Morris, 956 F.Supp. 1112, 1115–1118 (S.D.N.Y. 1997)
(dismissing 1983 claims under Heck where plaintiff’s conviction was valid).
II.

Claims Against Private Defendant
Even if Heck did not bar this action, Plaintiff could not bring a Bivens claim against

defendant John Doe, the Thrifty Rental Car Company employee who issued the rental record for
the car involved in his criminal case. A Bivens action may only be brought against someone acting
under color of federal law, not a private citizen working for a private company. Notwithstanding
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Plaintiff’s conclusory allegation that Doe conspired with the defendant federal agents, there is no
indication that Doe was “acting under federal law” as is required to assert a Bivens claim. Thus,
he cannot be held liable for violations of federal constitutional rights. See Minneci v. Pollard, 132
S.Ct. 617, 623 (2012) (“[A] critical difference” between cases where Bivens liability applied and
those where it did not is “employment status,” i.e., whether the defendants were “personnel
employed by the government [or] personnel employed by a private firm.” (emphasis in original));
see also Watson v. Zerillo, No. 14–CV–02591, 2014 WL 2566910 (E.D.N.Y. Jun. 6, 2014)
(applying Minneci, declining to recognize Bivens liability against private defendants in the context
of claims against employees of a private prison); La Ford v. Geo Group, Inc., No. 13–CV1978,
2013 WL 2249253 (E.D.N.Y. May 22, 2013) (same); Brooks v. Sposato, No. 11–CV–2598, 2012
WL 6756944 (E.D.N.Y. Nov. 26, 2012) (“plaintiff does not appear to have a viable federal claim
under any set of facts against the [private prison facility] defendants”). Here, not only is Defendant
Doe an employee of a private company, the private company has no relationship with the federal
government, contractual or otherwise, that would place its behavior under the umbrella of federal
action.
CONCLUSION
Accordingly, the action is dismissed without prejudice for failure to state a claim on which
relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii). Should Plaintiff be successful in achieving
a favorable termination of his criminal case, Plaintiff may seek to recommence this action. Amaker
v. Weiner, 179 F.3d 48 (2d Cir. 1999).

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The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken
in good faith and therefore in forma pauperis status is denied for the purpose of any appeal.
Coppedge v. United States, 369 U.S. 438, 444–45 (1962).

SO ORDERED.
s/ Pamela K. Chen
Pamela K. Chen
United States District Judge
Dated: March 2, 2016
Brooklyn, New York

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