Morgan v. DiScenza et al
Filing
35
ORDER granting 20 Motion to Dismiss for Failure to State a Claim; granting 21 Motion to Dismiss for Failure to State a Claim; granting 22 Motion to Dismiss for Failure to State a Claim; adopting in part 27 Report and Recommendations. Signed by Judge Samuel H. Mays, Jr on 6/22/2016. (Mays, Samuel)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
ROGER DALE MORGAN,
Plaintiff,
v.
TIM DISCENZA, MARK JACKSON,
and BRIAN BURNS,
Defendants.
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)
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No. 15-02332
ORDER
Before the Court is the Magistrate Judge’s February 9, 2016
Report and Recommendation (the “Report”) recommending that the
Court grant Defendants Tim DiScenza (“DiScenza”), Mark Jackson
(“Jackson”),
and
Brian
Burns’
(“Burns”)
“Defendants”) October 7, 2015 Motions to Dismiss.
(collectively,
(Report, ECF
No. 27; DiScenza Mot., ECF No. 20; Burns Mot., ECF No. 21;
Jackson Mot., ECF No. 22.)
Plaintiff Roger Morgan (“Morgan”)
filed an Objection on February 19, 2016.
(Obj., ECF No. 28.)
Defendants have not objected and the time to do so has passed.
For the following reasons, the Magistrate Judge’s Report is
ADOPTED in relevant in part, and the Motions to Dismiss are
GRANTED.
I.
On
Background
May
13,
2008,
Morgan
was
indicted
in
the
Western
District of Tennessee on two counts of making false statements
to
FBI
agents
contributions
to
about
quid
former
pro
quo
Tennessee
violation of 18 U.S.C. § 1001.
offers
Senator
and
financial
John
Ford,
in
(Indictment, ECF No. 1 in United
States v. Roger Morgan, 8-cr-20157 (W.D. Tenn.).)
Morgan pled
guilty to one count on March 15, 2010, and on June 21, 2010, the
Court imposed criminal monetary penalties of $5,000.
(Order,
ECF No. 45 in 8-cr-20157; Judgment, ECF No. 50 in 8-cr-20157.)
On
May
19,
2015,
Morgan
filed
a
pro
se
“Complaint
Violation of Civil Rights Under 42 U.S.C. § 1983.”
No. 1 at 1.)
for
(Compl., ECF
Morgan alleges that DiScenza (a former Assistant
United States Attorney 1 for the Western District of Tennessee),
Jackson (an FBI agent), and Burns (an FBI agent) “made false
statements to a grand jury to obtain an indictment against him.”
(Id. at 2.)
Morgan alleges that DiScenza “spoke to a potential
witness . . . before the matter went to court and this could be
construed as witness tampering.”
(Id.)
Morgan alleges that he
“was never at any time read [his] Miranda Rights and was not
under oath at any time.”
(Id.)
Morgan alleges that his “Brady
1
Morgan lists DiScenza’s former title as “Assistant United States Attorney
General.” (Compl., ECF No. 1 at 1 (emphasis added).) That appears to be a
typographical error or a misunderstanding. (DiScenza Mot., ECF No. 20 at 1.)
The parties acknowledge that DiScenza was a federal prosecutor at all
relevant times.
2
rights were violated because the government had information that
proved [he] did not do what they accused [him] of doing, and
this was admitted in open court after [he] pled guilty.”
at
3.)
Morgan
“would
also
like
to
bring
to
[the
(Id.
Court’s]
attention that [he] did pass a polygraph test showing that [he]
did not make false statements to the government, but this was
never admitted into evidence during the trial or even brought
before the judge.”
Morgan
which
was
(Id.)
alleges
based
on
that
the
criminal
violations
of
his
judgment
rights,
against
“cost
him,
[him]
a
financial loss of over $150,000 a year in contracts, which would
now
total
over
one
million
dollars
Morgan does not request damages.
in
lost
income.”
(Id.)
Instead, he seeks “to have
[his] guilty plea dismissed and the indictments against [him]
dismissed.”
II.
(Id.)
Standard of Review
Congress enacted 28 U.S.C. § 636 to relieve the burden on
the federal judiciary by permitting the assignment of district
court duties to magistrate judges.
237
F.3d
States,
598,
490
602
U.S.
(6th
858,
Cir.
See United States v. Curtis,
2001)
869-70
(citing
(1989));
see
Gomez
v.
also
Peterson, 67 Fed. App’x 308, 310 (6th Cir. 2003).
United
Baker
v.
“A district
judge must determine de novo any part of a magistrate judge’s
disposition that has been properly objected to.”
3
Fed. R. Civ.
P.
72(b);
28
U.S.C.
§
636(b)(1)(C).
After
reviewing
the
evidence, the court is free to accept, reject, or modify the
proposed findings or recommendations of the magistrate judge.
28 U.S.C. § 636(b)(1)(C).
The district court is not required to
review——under a de novo or any other standard——those aspects of
the report and recommendation to which no objection is made.
Thomas v. Arn, 474 U.S. 140, 150 (1985).
The district court
should adopt the findings and rulings of the magistrate judge to
which no specific objection is filed.
“The
does
not
tantamount
filing
meet
to
of
the
a
vague,
general,
requirement
complete
Id. at 151.
of
failure
or
conclusory
specific
to
objections
objections
object.”
Cason, 354 Fed. App’x 228, 230 (6th Cir. 2009).
and
is
Zimmerman
v.
Parties cannot
validly object to a magistrate’s report without explaining the
source of the error.
Howard v. Sec’y of Health & Human Servs.,
932 F.2d 505, 509 (6th Cir. 1991).
Pleadings and documents filed by pro se litigants are to be
“liberally
construed,”
and
a
“pro
se
complaint,
however
inartfully pleaded, must be held to a less stringent standard
than formal pleadings drafted by lawyers.”
551
U.S.
89,
93
(2007).
However,
“the
Erickson v. Pardus,
lenient
generally accorded to pro se litigants has limits.”
treatment
Pilgrim v.
Littlefield, 92 F.3d 413, 416 (6th Cir. 1996) (citing Jourdan v.
Jabe, 951 F.2d 108, 110 (6th Cir. 1991)).
4
The basic pleading
essentials are not abrogated in pro se cases.
891 F.2d 591, 594 (6th Cir. 1989).
Wells v. Brown,
A pro se complaint must
“contain sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face.”
Luttrell,
414
Ashcroft
v.
quotations
Fed.
App’x
784,
556
U.S.
Iqbal,
and
emphasis
786
(6th
662,
omitted).
678
Cir.
Barnett v.
2011)
(2009))
District
(quoting
(internal
Courts
“have
no
obligation to act as counsel or paralegal” to pro se litigants.
Pliler v. Ford, 542 U.S. 225, 231 (2004).
District Courts are
also not “required to create” a pro se litigant’s claim for him.
Payne v. Secretary of Treasury, 73 Fed. App’x 836, 837 (6th Cir.
2003).
III. Analysis
In their Motions to Dismiss, Defendants argue that they
acted under color of federal rather than state law and therefore
that § 1983 does not create a cause of action against them.
Defendants
also
argue
that
Morgan’s
Complaint
should
not
be
construed as a claim under Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971), because they
cannot be sued in their individual capacities under Bivens for
equitable
relief,
such
as
the
dismissal
of
an
indictment.
Defendants argue that, to the extent the Complaint is construed
to raise an otherwise valid Bivens claim, it is barred by the
applicable one-year statute of limitations and fails to allege
5
that Morgan’s conviction has been reversed on direct appeal,
expunged, or called into question by a federal court’s writ of
habeas
corpus.
defenses,
Defendants
including
failure
also
to
raise
serve
various
process
individual
properly
and
absolute immunity.
In
his
Response
to
the
Motions,
Morgan
argues
Complaint is properly construed as a Bivens action.
No. 25 at 2.)
not
apply,
that
his
(Resp., ECF
He argues that the statute of limitations should
because
“[s]everal
complaints
were
sent”
at
an
earlier time “to the United States Government Attorney General
in the Western District of Tennessee, as well as Washington,
DC.”
(Id.
at
3.)
Morgan
argues
that
Defendants
are
not
entitled to absolute immunity because they acted “knowingly and
willfully.”
(Id. at 2-3.)
Morgan’s Response reasserts factual
allegations made in the Complaint and alleges new facts.
In her Report, the Magistrate Judge recommends that the
Motions to Dismiss be granted on a multiple alternative grounds.
First,
she
construed
as
recommends
a
that
Bivens
Morgan’s
claim
because
§
he
1983
claim
neither
not
be
explicitly
invokes Bivens nor requests relief appropriately available under
Bivens.
(Report, ECF No. 27 at 7-8.)
Second, she recommends
that Morgan’s claim——if construed as a Bivens claim——be barred
by
the
one-year
statute
of
limitations,
because
Morgan
had
reason to know of the injury as early as June 21, 2010, when he
6
was sentenced, and because he alleges that he sent his first
“complaint” to the “Attorney General” on March 15, 2012.
at 8-9.)
(Id.
Third, she recommends that Morgan’s Bivens claim be
dismissed for failure to “‘prove that the underlying criminal
conviction
has
been
reversed
on
direct
appeal,
expunged
by
executive order, declared invalid by a state tribunal authorized
to make such determinations or called into question by a federal
court’s issuance of a writ of habeas corpus.’”
(quoting
Heck
v.
Humphrey,
512
U.S.
477,
(Id. at 9-10
486-87
(1994).)
Fourth, the Magistrate Judge recommends that absolute immunity
apply to Defendants in this case.
Lucas,
2013
(extending
WL
6179418
absolute
enforcement
officers
at
*4
immunity
are
(Id. at 10-11; see Ransaw v.
(N.D.
to
alleged
Ohio
Bivens
to
have
Nov.
actions
25,
2013)
when
testified
law
falsely
before a grand jury); Imbler v. Pachtman, 424 U.S. 409, 424
(1976) (extending absolute immunity when federal prosecutors are
alleged
to
have
violated
constitutional
rights
in
their
performance of acts that are an “integral part of the judicial
process”).)
In his Objection, Morgan asserts, without argument, that
the § 1983 claim raised in his Complaint should be construed as
a Bivens claim.
claim
is
not
(Obj., ECF No. 28 at 1.)
time-barred,
because
he
He argues that the
“began
to
file
[his]
complaints as soon as it was made known to [him] that [his]
7
rights had been violated” and his complaints were filed “within
a year after [he] recognized [his] rights were violated.”
at 2.)
(Id.
Addressing immunity, he argues that “clearly under the
circumstances of the Bivens Rights as it relates to Color of law
complaints does not give absolute immunity to federal agents as
stated in 2014 on the FBI’s website which states that federal
agents
on
or
appropriate
equitable
off
official
duty
relief
must
conduct
capacity.”
rather
than
(Id.
damages,
themselves
at
4.)
Morgan
in
To
a[n]
support
argues——without
citation——that “the United States Government in 1980 regarding
Statute 28-USC-1331 stated, ‘Therefore a federal court can hear
a
federal
question
plaintiff.’”
one
even
if
no
money
is
sought
by
the
(Id. at 6.)
Morgan’s
least
case
Objection
adequate
is
ground
unresponsive
for
to
dismissal.
the
As
Report
the
on
at
Magistrate
Judge correctly notes, the Supreme Court has held that a § 1983
plaintiff “‘must prove that the conviction or sentence has been
reversed on direct appeal, expunged by executive order, declared
invalid
by
determinations
a
state
or
called
tribunal
into
authorized
question
issuance of a writ of habeas corpus.’”
by
a
to
make
federal
such
court’s
(Report, ECF No. 27 at
9-10 (quoting Heck, 512 U.S. at 486-87).)
The requirement in
Heck has been extended to Bivens claims by the Sixth Circuit.
See Lanier v. Bryant, 332 F.3d 999, 1005-1006 (6th Cir. 2003);
8
Robinson v. Jones, 142 F.3d 905, 907 (6th Cir. 1998).
makes
no
allegation
in
his
Complaint
that
his
Morgan
underlying
criminal conviction has been reversed, expunged, invalidated, or
called into question via habeas corpus.
In his Objection, he
does not object to the Magistrate Judge’s recommendation that
the Motions to Dismiss be granted based on Heck——nor does it
appear that there is any basis for such an objection.
Morgan seeks to have his § 1983 claim construed as a Bivens
claim.
So construed, and absent objection to the Magistrate
Judge’s Heck recommendation,
Arn
counsels
the
Court
to
adopt
the Report’s recommendation that Morgan has failed to satisfy
the
requirements
of
Heck.
Arn,
474
U.S.
at
151.
That
recommendation is ADOPTED.
Morgan has failed to state a claim upon which relief may be
granted under § 1983 or Bivens.
The Motions to Dismiss are
GRANTED.
IV.
Conclusion
For the foregoing reasons, the Magistrate Judge’s Report is
ADOPTED
in
relevant
part,
and
the
Motions
to
Dismiss
are
GRANTED.
So ordered this 22nd day of June, 2016.
/s/ Samuel H. Mays, Jr._____
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE
9
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