Etcheber v. Federal Bureau of Investigation et al

Filing 33

ORDER adopting Report and Recommendations of Magistrate Judge Bristow Marchant; granting 18 Motion for Summary Judgment. This action is dismissed with prejudice. Signed by Honorable Joseph F Anderson, Jr on 3/27/2014.(cwhi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA

Pascal Andre Pierre Etcheber,
Plaintiff,
v.
Federal Bureau of Investigation; Agent Espie;
and the United States,
Defendants.
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C/A No.: 2:13-0752-JFA-BM

ORDER

The pro se plaintiff, Pascal Andre Pierre Etcheber, a French national, has asserted
claims against the FBI; David Espie, one of its agents; and the United States government.
The gist of his claim is that defendant Espie engaged in misconduct relating to federal
criminal charges against him and that the FBI neither prevented nor monitored his conduct,
resulting in damages to the plaintiff.
The Magistrate Judge assigned to this action1 has prepared a thorough Report and
Recommendation in which he suggests that this court should grant the defendants’ motion

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The Magistrate Judge’s review is made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule
73.02. The Magistrate Judge makes only a recommendation to this court. The recommendation has no presumptive
weight, and the responsibility to make a final determination remains with the court. Mathews v. Weber, 423 U.S. 261
(1976). The court is charged with making a de novo determination of those portions of the Report to which specific
objection is made and the court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate
Judge, or recommit the matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).

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for summary judgment.2 The Magistrate Judge has considered the present action as one
against federal officials pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau
of Narcotics, 403 U.S. 388, 397 (1971).3 The Report sets forth in detail the relevant facts
and standards of law on this matter, and the court incorporates such without a recitation and
without a hearing.
The parties were advised of their right to file objections to the Report and
Recommendation and the plaintiff has timely filed objections.
Briefly, the plaintiff was indicted by a grand jury in the Charleston Division in the
District of South Carolina for making false statements to federal law enforcement agents.
Ultimately, four superseding indictments were returned, charging the defendant with
maintaining a drug-involved premises, obstruction of justice, and witness tampering, among
other things. While the criminal action was pending, numerous motions were filed and this
court conducted several hearings, including a hearing on a motion to suppress filed by the
plaintiff.
On May 25, 2010, plaintiff was charged in an Information with knowingly and
intentionally possessing marijuana, which is a misdemeanor. This Information was filed

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An order was issued pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) notifying plaintiff of
the summary dismissal procedure and possible consequences if he failed to adequately respond to the motion for
summary judgment. Plaintiff responded to the motion.
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In Bivens, the Supreme Court created a counterpart to 42 U.S.C. § 1983 and authorized suits against federal
employees in their individual capacities. Federal officials cannot be sued under § 1983 because they do not act under
color of state law. However, defendant Espie can be sued for damages in his individual capacity. A Bivens claim is
analogous to a claim under § 1983. Harlow v. Fitzgerald, 457 U.S. 812–20 (1982).

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pursuant to a plea agreement4 whereby plaintiff agreed to enter a plea of guilty to this charge
in return for which all of the other indictments against him would be dismissed. It was
further agreed that the plaintiff would receive a sentence of probation. The court accepted
the plaintiff’s plea, placed him on probation, and ultimately terminated his probation early.
In this Bivens action, plaintiff does not contest the conviction on the misdemeanor
charge to which he pled guilty. Rather, he contests the original felony charges filed against
him as part of the criminal prosecution. On this record, the Magistrate Judge recommends
summary judgment for the defendants.
With regard to the dropped criminal charges, the Magistrate Judge is of the opinion
that Heck v. Humphrey, 512 U.S. 477 (1994) bars the claim, because plaintiff has not proved
that the charges have been reversed on direct appeal, expunged by executive order, declared
invalid by a state tribunal, or called into question by a federal court’s issuance of a writ of
habeas corpus. Heck dictates that this action should be dismissed unless and until one of the
foregoing events occurs.
In response, plaintiff argues that Heck should not bar this action because the felony
charges were all dropped, and he was therefore never convicted of those charges. The
Magistrate Judge opines that Heck still bars this claim for damages unless the plaintiff
establishes that the nolle prosequi or dismissal of the criminal charges was entered for

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The plea tendered by the plaintiff to a misdemeanor allowed him to avoid conviction for a felony, and thus
maintain his non-resident status within the United States. A conviction on a felony would have severely hampered his
ability to visit the United States and thereby see his daughter.

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reasons consistent with his innocence.
Traditionally in this district, and specifically in this case, charges in felony indictments
are dismissed as part of a plea agreement offering on terms agreeable to the plaintiff.
According to the Magistrate Judge, this is not a “favorable disposition” of these felony
charges consistent with plaintiff’s innocence.
The Magistrate Judge further opines that even if Heck did not bar the claim in this
action, the claim would still be subject to summary judgment. First, according to the
Magistrate Judge, the statute of limitations for plaintiff’s false arrest/imprisonment claim is
three years. This three-year limitations period began to run when plaintiff was detained
pursuant to legal process. In this case, the federal indictment was filed on February 18, 2009,
and plaintiff was arrested on March 19, 2009, and detained in custody until April 6, 2009.
Plaintiff was rearrested on November 24, 2009, following the filing of a superseding
indictment and was detained in custody until April 29, 2010, when he was again released on
bond. Therefore, the latest date plaintiff was detained pursuant to legal process was
November 24, 2009, when he was arraigned following his second arrest. Once he was
detained pursuant to legal process, his claim for false arrest/imprisonment ceased, and it
pursued after that point, it had to be pursued as a malicious prosecution claim.
The Magistrate Judge further suggests that to the extent the claim can be deemed to
be one for malicious prosecution, and further assuming that such a claim would not be barred
by Heck, this claim could not have been brought prior to the termination of plaintiff’s

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criminal proceedings. Therefore, the three-year statute of limitations—while barring a false
arrest/imprisonment claim—does not bar a malicious prosecution claim.
Giving the plaintiff the benefit of the doubt on this issue, the Magistrate Judge
nevertheless suggests that none of the documents plaintiff cites to establishes the falsity of
defendant Espie’s testimony or any wrongdoing on his part. Moreover, as noted by the
Magistrate Judge, plaintiff has provided no affidavits, deposition testimony, or other
evidence from any purported “witnesses” or “subsequent agents” who allegedly came
forward after plaintiff was free to bring his claim.
Regarding the plaintiff’s claim under the Federal Torts Claims Act (FTCA), the
Magistrate Judge agrees with the United Sates that plaintiff has failed to establish a viable
claim under the FTCA. First, as noted by the government, the plaintiff has not asserted any
negligence act by defendant Espie. Rather, plaintiff’s allegations are that Espie engaged in
intentional wrongdoing. Here, plaintiff’s administrative FTCA claim was not signed until
May 15, 2012, which is not within the two-year period during witch the claim accrued.
Moreover, the Magistrate Judge suggests that, as was the case with the earlier claims,
plaintiff has failed to provide affidavits, deposition testimony, or any other credible evidence
to support his claim. Thus, according to the Magistrate Judge, all the court is left with are
general and conclusory claims and a complaint with no supporting authority.
The court has reviewed the plaintiff’s lengthy objection memorandum and finds no
basis for overturning the Magistrate Judge’s well-reasoned Report and Recommendation.

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Plaintiff’s memorandum is not separated into discreet objections, but consists of a wideranging attack on each and every aspect of the Report and Recommendation. It asserts
general and conclusory objections such as “the Report fails to address key legal issues raised
by the plaintiff” and “the report imposes upon the plaintiff evidence that is unrealistic and
unnecessary, adding a burden unjustified by any case laws.” In other words, this court has
not been provided with specific objections that call into question the underlying rationale of
the Report and Recommendation.
After a careful review of the record, the applicable law, the Report and
Recommendation, and the objections thereto, the court adopts the Magistrate Judge’s
recommendation and incorporates the Report herein by reference.

Accordingly, the

defendants’ motion to dismiss or alternatively for summary judgment (ECF No. 18) is
granted and this action is dismissed with prejudice.
IT IS SO ORDERED.

March 27, 2014
Columbia, South Carolina

Joseph F. Anderson, Jr.
United States District Judge

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