Pisani v. McConnell et al
Filing
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ORDER denying 4 Motion to Appoint Counsel; denying as moot 5 Motion to Preclude RI Judges from Involvement in the Case; denying as moot 6 Motion to Produce. So Ordered by Judge Landya B. McCafferty, District of NH on 4/24/14. (Jackson, Ryan)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
Carol Pisani
v.
Civil No. 14-cv-056-LM
Judge John J.
McConnell, Jr., et al.
O R D E R
Carol Pisani has filed a complaint, document no. 2, against
Judge John J. McConnell, Jr., and the National Highway Traffic
Safety Administration (“NHTSA” or “the administration”).
Because Pisani is proceeding pro se and in forma pauperis, the
matter is before the court for preliminary review to determine,
among other things, whether the complaint fails to state a claim
on which relief may be granted,” 28 U.S.C. § 1915(e)(2)(B)(ii),
or “seeks monetary relief against a defendant who is immune from
relief,” 28 U.S.C. § 1915(e)(2)(B)(iii).
Also before the court
are three miscellaneous motions Pisani has filed in conjunction
with her complaint.
When determining whether a pro se complaint states a claim,
the court must construe the complaint liberally.
See Erickson
v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (citation
omitted).
To survive preliminary review, the 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)).
To determine plausibility,
the court treats as true all well-pleaded factual allegations,
and construes all reasonable inferences drawn therefrom in the
plaintiff’s favor.
See Ocasio–Hernández v. Fortuño–Burset, 640
F.3d 1, 12 (1st Cir.2011).
Background
In 2007, Pisani filed suit against several defendants,
including Richard L. Van Iderstine, a one-time employee of the
NHTSA.
Pisani’s 2007 case was based upon allegations that the
NHTSA misappropriated an invention that she had shown, in
confidence, to one or more NHTSA employees.
Judge McConnell
dismissed Pisani’s complaint against Van Iderstine “without
prejudice for failure to effectuate service in a timely manner.”
Pisani v. Van Iderstine, C.A. No. 07-187M, 2011 WL 2680744, at
*1 (D.R.I. July 8, 2011).
There is no indication in Pisani’s
complaint in this case that she made any further attempt to
effectuate service on Van Iderstine.
Pisani has now sued Judge McConnell and the NHTSA.
Using
the vehicle of 42 U.S.C. § 1983, she asserts that Judge
McConnell violated her right to due process by “violating and
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disrupting” her 2007 case, which she also claims was “botched
and ruined” by Judge McConnell’s actions.
She further asserts
that the NHTSA violated her right to due process by failing to
help her locate Van Iderstine or by interfering with her effort
to serve him with the complaint in her 2007 case.
In terms of relief, Pisani seeks judgments against the
NHTSA and Judge McConnell.
With regard to relief against the
NHTSA, she seeks an accounting of royalties she should have
earned from those with whom the NHTSA had wrongfully shared her
invention.
With respect to both defendants, she seeks as
damages in this case the damages she would have been awarded in
her 2007 case, but for the malfeasance of those defendants.
Discussion
As a preliminary matter, the court notes that 42 U.S.C. §
1983 is a vehicle for bringing civil-rights actions against
persons acting “under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia.”
Because there is nothing in Pisani’s
complaint to suggest that either of the defendants was acting
under color of state law when committing the acts that, in
Pisani’s eyes, deprived her of her right to due process, § 1983
is not an appropriate vehicle for bringing Pisani’s claims to
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court.
However, in light of the court’s obligation to construe
Pisani’s complaint liberally, the court will presume that the
claims before it are Bivens claims.
As the court of appeals for
this circuit has recently explained:
A Bivens action is a civil action brought against
agents of the United States, deriving its name from
Bivens v. Six Unknown Named Agents of the Federal
Bureau of Narcotics, 403 U.S. 388 (1971). “This
implied cause of action is the federal analog to §
1983 suits against state officials.” Soto–Torres v.
Fraticelli, 654 F.3d 153, 158 (1st Cir. 2011).
Hernandez-Cuevas v. Taylor, 723 F.3d 91, 94 n.1 (1st Cir. 2013)
(parallel citations omitted).
A. Claims Against NHTSA
Pisani has not sued any individual employee of the NHTSA;
she has sued the administration itself.
But, it is well
established that a Bivens action may not be asserted against a
federal agency, only individual federal agents.
See FDIC v.
Meyer, 510 U.S. 471, 484-85 (1994); see also Chiang v. Skeirik,
582 F.3d 238, 243 (1st Cir. 2009) (citation omitted).
So, to
the extent that Pisani seeks money damages from the FHTSA, her
claim against the administration is subject to dismissal.
See
id. (affirming trial court’s dismissal, under Fed. R. Civ. P.
12(b)(1), of Bivens claim that named no individual governmental
officers).
To the extent that Pisani seeks equitable relief
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from the FHTSA, in the form of an accounting, that request is
subject to dismissal for failure to state a claim, see 28 U.S.C.
§ 1915(e)(2)(B)(ii), because Pisani identifies no legal
authority entitling her to an accounting from a party that is
immune from her claim for damages.
Thus, nothing of Pisani’s
claim against the NHTSA remains.
B. Claims Against Judge McConnell
Pisani claims that Judge McConnell acted illegally by
ruling as he did in her 2007 case.
Judges, however, are
absolutely immune “from liability for damages for actions taken
within the scope of their judicial jurisdiction.”
Pierson v.
Ray, 386 U.S. 547, 554 (1967) (citing Bradley v. Fisher, 80 U.S.
335 (1871) (adopting the common-law doctrine of judicial
immunity)).
Judicial “immunity is overcome in only two sets of
circumstances.”
Mireles v. Waco, 502 U.S. 9, 11 (1991).
Specifically, “a judge is not immune for liability for
nonjudicial actions, i.e., actions not taken in the judge’s
judicial capacity,” id. (citations omitted), and “a judge is not
immune for actions, though judicial in nature, taken in the
complete lack of all jurisdiction,” id. at 12 (citations
omitted).
Here, because Pisani has made no factual allegations
that would support application of either of the two exceptions
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described in Mireles, Judge McConnell is protected by judicial
immunity, and Pisani’s claim against him is subject to
dismissal.1
See 28 U.S.C. § 1915(e)(2)(B)(iii).
Indeed, as
Pierson makes abundantly clear, for party such as Pisani, who is
dissatisfied with a judge’s decision in a case over which he has
unquestioned jurisdiction, the proper recourse is the appeal
process.
See 386 U.S. at 554.
Miscellaneous Motions
Pisani has filed three motions in this case which are
currently pending before the court.
Document no. 5 (motion to
preclude Rhode Island judges from involvement in her case) is
denied as moot since all the judges in the United States
District Court for the District of Rhode Island are recused from
involvement in her lawsuit, and her lawsuit has been has been
transferred to this court.
Document no. 4 (motion for
appointment of counsel and payment of costs) is denied as Pisani
has not shown any exceptional circumstances that would entitle
1
Pisani’s complaint also includes factual allegations
concerning other judges who issued rulings in her 2007 case,
including Magistrate Judge Lincoln D. Almond and Chief Judge
William E. Smith. Neither of those judges is a named defendant
in this case. Based upon the facts alleged in Pisani’s
complaint, however, both of those judges would be entitled to
judicial immunity for the same reasons that Judge McConnell is
protected by that doctrine.
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her to appointed counsel, and is not entitled to payment of
costs.
Document no. 4 is denied without prejudice to Pisani’s
right to refile the request for appointed counsel in the future
should her complaint survive and her circumstances change.
Document no. 6 (motion for discovery) is denied as moot since
Pisani’s complaint is subject to dismissal; the motion is also
not ripe since this is preliminary review and her complaint has
not been served.
Conclusion
For the reasons explained above, Pisani’s complaint does
not survive scrutiny under 28 U.S.C. § 1915(e)(2)(B).
Pisani
has 30 days from the date of this order to amend her complaint
or to show cause why her complaint should not be dismissed.
If
Pisani fails either to file an amended complaint or to show
cause why her complaint should not be dismissed, the court will
dismiss her complaint in its entirety.
SO ORDERED.
__________________________
Landya McCafferty
United States District Judge
(Sitting by designation)
April 24, 2014
cc: Carol Pisani, pro se
Robert J. Rabuck, Esq.
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