Aguirre v. Koumanelis et al

Filing 16

MEMORANDUM AND ORDER DISMISSING the action without prejudice and DENYING Motions for Additional Disclosure (ECF 9 and 10 ) filed by Rey David Aguirre. So Ordered by Chief Judge William E. Smith on 5/29/15. (Jackson, Ryan)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
______________________________
)
)
)
)
v.
)
)
ALEXANDER KOUMANELIS and
)
ALFONSO J. ESQUER,
)
Defendants.
)
______________________________)
REY DAVID AGUIRRE,
Plaintiff,

C.A. No. 15-161 S

MEMORANDUM AND ORDER
WILLIAM E. SMITH, Chief Judge.
Plaintiff Rey David Aguirre has filed a pro se civil rights
complaint

pursuant

to

Bivens

v.

Six

Unknown

Named

Federal Bureau of Narcotics, 403 U.S. 388 (1971).

Agents

of

The Court is

required to screen the Complaint under 28 U.S.C. §§ 1915(e)(2)
and 1915A.

Having done so, the Court concludes that Aguirre has

failed to state a claim on which relief may be granted.
I.

Background
Aguirre filed his original Complaint (ECF No. 1) on October

30, 2014, in the United States District Court for the District
of Arizona.

He subsequently filed an Application to Proceed in

Forma Pauperis (ECF No. 3), a Motion to Request Change of Venue
(ECF No. 8), and a First Amended Complaint (ECF No. 12). 1

1

Aguirre also filed
Disclosure (ECF Nos. 9, 10).

two

Motions

to

Show

Additional

In his First Amended Complaint, Aguirre names as Defendants
Alexander Koumanelis, a Special Agent with the Drug Enforcement
Administration, based in Rhode Island, and Alfonso J. Esquer,
also a Special Agent with the DEA, based in Arizona.

Aguirre

alleges that Defendants violated his rights to due process under
the Fifth and Fourteenth 2 Amendments to the U.S. Constitution and
his

right

to

bear

arms

under

the

Second

Amendment.

Specifically, in Count I, Aguirre claims that his right to “due
process was violated when the defendants knowingly used evidence
belonging to another individual.

Such evidence was entered into

another individual’s file a day after the Plaintiff was indicted
(Am. Compl. 3.) 3

with this evidence.”
Defendants

committed

perjury

“when

under

He also alleges that
oath

they

testified

saying that a cell phone was taken of the Plaintiff which was
used to commit such a crime.”

(Id.)

As a result of Defendants’

actions, Aguirre states, he received a ten and one-half year
prison sentence. 4

(Id.)

In addition, in Count II Aguirre claims

2

The Fourteenth Amendment pertains to state actors, see
U.S. Const., amend, XIV, § 1, while the Fifth Amendment applies
to federal actors, see id., amend. V.
The Court presumes that
Aguirre’s second count also arises under the Fifth Amendment.
3

Citation reflects that of the electronic docket.

4

It appears from the exhibits attached to the Amended
Complaint that the charge(s) for which he was convicted involved
a drug transaction. (Am. Compl.) He is currently incarcerated
in an Arizona state prison. (Id. at 1.)
2

that

“the

testimony

Defendants
in

a

used

State

court

false
to

evidence

secure

a

and

p[e]rjured

conviction.

Thus

depriving the Plaintiff of his liberty, life, and property.”
(Id.

at

4.)

Finally,

in

Count

III

Aguirre

asserts

that,

although he was legally able to bear arms, “[h]is arms were
taken by the defendants with no crime committed with any arms.
The defendants infringed the Plaintiff’s rights to keep and bear
arms.”

(Id. at 5.)

Defendants’

He claims to have lost this right due to

actions.

(Id.)

compensatory damages.

Aguirre

seeks

a

variety

of

(Id. at 6.)

In an Order dated April 22, 2015 (ECF No. 13), the District
of Arizona court granted Aguirre’s Application to proceed in
forma pauperis and Motion for Change of Venue.
that:
Island

“This

action

for

is

further

transferred

proceedings,

to

the

including

The court stated

District
screening

of
of

Rhode
the

revised[5] First Amended Complaint (Doc. 12) and the two pending
‘Motions to Show Additional Disclosure’ (Docs. 9, 10).”

Aguirre

v. Koumanelis, No. CV 14-02452-TUC-RM (D. Ariz. Apr. 22, 2015)
(Marquez,

J.)

(order

granting

motions

5

to

proceed

in

forma

Agiurre filed a First Amended Complaint (ECF No. 6) in the
District of Arizona on December 31, 2014.
That document was
stricken because it contained sensitive information, and Aguirre
was ordered to file a new version of his pleading which redacted
said information. (ECF No. 11.) See Aguirre v. Koumanelis, No.
CV 14-02452-TUC-RM (D. Ariz. Feb. 18, 2015) (Marquez, J.) (order
striking amended complaint).
3

pauperis and for change of venue).

The case was transferred to

this Court on April 23, 2015.
II.

Law
A.

Screening under § 1915(e)(2) and § 1915A

In

connection

with

proceedings

in

forma

pauperis,

§ 1915(e)(2) instructs the Court to dismiss a case at any time
if the Court determines that the action, inter alia, fails to
state

a

claim

on

§ 1915(e)(2). 6
complaints

filed

which

relief

Similarly,
by

§

may

1915A

prisoners

be

granted.

directs

against

a

courts

28

U.S.C.

to

screen

governmental

entity,

officer, or employee of such entity and dismiss the complaint,
or any portion thereof, for reasons identical to those set forth
in § 1915(e)(2).

6

28 U.S.C. § 1915A. 7

Section 1915(e)(2) states:

(2) Notwithstanding any filing fee, or any portion
thereof, that may have been paid, the court shall
dismiss the case at any time if the court determines
that-(A) the allegation of poverty is untrue; or
(B) the action or appeal-(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.
28 U.S.C. § 1915(e)(2).
7

Section 1915A provides in relevant part:

(a) Screening.-- The court shall review, before
docketing, if feasible or, in any event, as soon as
4

The legal standard for dismissing a complaint for failure
to

state

a

claim

pursuant

to

§

1915(e)(2)

and

§

1915A

is

identical to the standard used when ruling on a Rule 12(b)(6)
motion.

See Fridman v. City of New York, 195 F. Supp. 2d 534,

538 (S.D.N.Y. 2002); see also Pelumi v. Landry, No. CA 08-084ML,
2008 WL 2660968, at *2 (D.R.I. June 30, 2008).

“To survive a

motion to dismiss, a 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 Atlantic Corp. v. Twombly, 550 U.S. 544,
570 (2007)); see also Fed. R. Civ. P. 12(b)(6).
determination,
allegations

as

the

Court

true

favorable to him.

and

must

accept

construe

a

them

In making this

plaintiff’s
in

the

well-pled

light

most

See Rogan v. Menino, 175 F.3d 75, 77 (1st

Cir. 1999); Greater Providence MRI Ltd. P’ship v. Med. Imaging
Network of S. New England, Inc., 32 F. Supp. 2d 491, 493 (D.R.I.
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.
(b) Grounds for dismissal.-- On review, the court
shall identify cognizable claims or dismiss the
complaint, or any portion of the complaint, if the
complaint-(1) is frivolous, malicious, or fails to state a
claim upon which relief may be granted; or
(2) seeks monetary relief from a defendant who is
immune from such relief.
28 U.S.C. § 1915A.
5

1998).

Although the Court must review pleadings of a pro se

plaintiff liberally, Estelle v. Gamble, 429 U.S. 97, 106 (1976),
the

Court

need

not

credit

bald

assertions

or

unverifiable

conclusions, Iqbal, 556 U.S. at 678-79.
B.

Bivens

In Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971), the Supreme Court stated that
“[i]n Bell v. Hood, 327 U.S. 678 . . . (1946), we reserved the
question

whether

violation

[of

the

Fourth

Amendment]

by

a

federal agent acting under color of his authority gives rise to
a

cause

of

action

for

unconstitutional conduct.

damages

consequent

upon

Today we hold that it does.”

his

Id. at

389; see also id. at 397 (“Having concluded that petitioner’s
complaint states a cause of action under the Fourth Amendment,
[] we hold that petitioner is entitled to recover money damages
for any injuries he has suffered as a result of the agents’
violation of the Amendment.”).

“This cause of action is the

federal equivalent to [42 U.S.C.] § 1983 suits against state
officials.”

Morales

v.

Chadbourne,

996

F.

Supp.

2d

19,

28

(D.R.I. 2014) (quoting Soto-Torres v. Fraticelli, 654 F.3d 153,
158 (1st Cir. 2011)).
III. Discussion
Aguirre purports to seek monetary damages for violation of
his Second and Fifth Amendment rights to bear arms and to due
6

process, respectively.

However, in reality he is challenging

the validity of his conviction. 8
(noting

use

of

evidence

(See, e.g., Am. Compl. 3)

belonging

to

another

and

perjured

testimony, resulting in ten and one-half years’ incarceration);
(id. at 4) (noting use of false evidence and perjured testimony
to secure conviction, resulting in loss of liberty, life, and
property).

This he cannot do under Bivens.

The proper vehicle for a federal court challenge to the
fact

or

validity

of

a

state

prisoner’s

proceeding under 28 U.S.C. § 2254.

confinement

is

a

In Heck v. Humphrey, 512

U.S. 477 (1994), the Supreme Court held that:
[I]n
order
to
recover
damages
for
allegedly
unconstitutional conviction or imprisonment, or for
other harm caused by actions whose unlawfulness would
render a conviction or sentence invalid, a § 1983
plaintiff must prove 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, 28 U.S.C. § 2254. A claim for damages
bearing that relationship to a conviction or sentence
that has not been so invalidated is not cognizable
under § 1983.
Id. at 486-87 (footnote omitted); see also id. at 489-90 (“a
§ 1983

cause

of

action

for

damages

8

attributable

to

an

In his original Complaint, Aguirre sought to have his
conviction overturned and his sentence vacated. (Compl. 6.) He
has dropped that request in the First Amended Complaint.
(Am.
Compl. 6.)
7

unconstitutional conviction or sentence does not accrue until
the conviction or sentence has been invalidated”).
Thus, when a state prisoner seeks damages in a § 1983
suit, the district court must consider whether a
judgment in favor of the plaintiff would necessarily
imply the invalidity of his conviction or sentence; if
it would, the complaint must be dismissed unless the
plaintiff can demonstrate that the conviction or
sentence has already been invalidated.
But if the
district court determines that the plaintiff’s action,
even
if
successful,
will
not
demonstrate
the
invalidity
of
any
outstanding
criminal
judgment
against the plaintiff, the action should be allowed to
proceed, in the absence of some other bar to the suit.
Id. at 487; see also Wilkinson v. Dotson, 544 U.S. 74, 79 (2005)
(“[A]

§

1983

action

will

not

lie

when

a

state

prisoner

challenges the fact or duration of his confinement.”); Muhammad
v. Close, 540 U.S. 749, 750 (2004) (“Challenges to the validity
of any confinement or to particulars affecting its duration are
the province of habeas corpus.”).

The same is true for a state

prisoner’s action against federal officials under Bivens.

See

Pandey v. Freedman, 66 F.3d 306, 1995 WL 568490, at *1 (1st Cir.
1995) (noting that, under Heck, plaintiff “cannot establish the
elements

of

a

Bivens

action

until

his

conviction

has

been

declared invalid or otherwise impugned”) (quoting Stephenson v.
Reno, 28 F.3d 26, 27 (5th Cir. 1994)); see also Tavarez v. Reno,
54 F.3d 109, 110 (2d Cir. 1995) (concluding that Heck should
apply

to

Stephenson,

Bivens
28

actions

F.3d

at

27

as

well

(“for

8

as

suits

purposes

of

under
a

§

1983);

civil

rights

action implicating the validity of a conviction, there should be
no distinction between state and federal prisoners”).
Here, Aguirre seeks damages for violations of his rights to
due process and to bear arms.

However, because “establishing

the basis for the damages claim necessarily demonstrates the
invalidity

of

the

conviction,”

Heck,

512

U.S.

at

481-82,

he

cannot proceed with his claim unless and until his conviction
has been somehow invalidated, id. at 487.
Accordingly, Aguirre’s Bivens action is DISMISSED without
prejudice

to

being

brought

in

a

proceeding

under

28

U.S.C.

§ 2254. 9

The Motions for Additional Disclosure are DENIED as

moot.
IT IS SO ORDERED.

William E. Smith
Chief Judge
Date: May 29, 2015

9

The Court notes that Aguirre has brought a previous
lawsuit pursuant to § 1983 against Defendant Esquer, along with
a state entity and employee, based on the same incident involved
in this case and raising the same allegations against Esquer.
See Aguirre v. Ortiz, No. CV 14-2258-TUC-JAS (D. Ariz.).
That
case was also dismissed without prejudice to being pursued under
§ 2254.
See id. (D. Ariz. Jan. 7, 2015) (Soto, J.) (order
dismissing case without prejudice).
9