Matthews v. O'Grady

Filing 10

MEMORANDUM OPINION. Signed by District Judge Leonie M. Brinkema on 2/2/16. (c/s)(gwalk, )

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division

ALEXANDER OTIS MATTHEWS,
Plaintiff,

No. l:15-cv-1162(LMB/TCB)

V.

LIAM O'GRADY, UNITED STATES
DISTRICT JUDGE,
Defendant.

MEMORANDUM OPINION

On September 8,2015, Alexander Otis Matthews, a federal inmate proceeding pro se,
filed a civil rights action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau
ofNarcotics. 403 U.S. 388 (1971), against United States District Judge Liam O'Grady. Compl.
[Dkt. No. 1]. On September 23,2015, he filed an amendment to his complaint in which he added

new claims against Judge O'Grady.* Rule 15(a) Amendment to Suit [Dkt. No. 3]. On September
29,2015, defendant filed a second amendment in which he sought to add Assistant United States

Attorneys Ryan S. Faulconer, Peter August Frandsen, and Jack Hanly as defendants. Rule 15(a)
Amendment to Suit Seeking Injunctive Relief Against Additional Defs. Ryan S. Faulconer, Peter
August Frandsen, and Jack Hanly [Dkt. No. 4]. The Court has not granted leave for that
amendment. On January 19 and 20, 2016, the plaintiff filed two additional amendments seeking
to add two more defendants [Dkt. Nos. 5,6], both of which the Court denied in an Order issued

' Plaintiffwas allowed to amend his complaint once as a matter ofcourse. Fed. R. Civ. P.
15(a)(1). After an initial amendment as a matter of course, a plaintiff is permitted to further
amend his pleading only "with the opposing party's written consent or Ae court's leave." Fed. R.
Civ. P. 15(a)(2).

onJanuary 20,2016.^ Order [Dkt. No. 7]. The Court has reviewed the plaintiffs amended
complaint and his attempt to amend it by adding the three prosecutors. As explained below, the

plaintiff will be denied leave to amend the complaint to add the three prosecutors as defendants,
and his complaint against Judge O'Grady will be dismissed pursuant to 28 U.S.C. § 1915A(b)(l)
for failure to state a claim upon which relief may be granted.
I.

BACKGROUND

This lawsuit arises from plaintiffs criminal prosecution in United States v. Matthews.

1:1 l-cr-348-LO-l, over which Judge O'Grady presided.^ On September 30,2011, after the
plaintiffpleaded guilty to one countof bank fraud and one countof wire fraud. JudgeO'Grady
sentenced him to 120 months of imprisonment, to be followed by five years of supervised

release. Plaintiff was also ordered to pay restitution in the amount of $5,055,250.00. Plaintiff did

not appeal either his convictions or sentence, but in February of 2012, he filed a motionto vacate

pursuant to 28 U.S.C. §2255. S^ No. l:ll-cr-348-LO-l [Dkt. No. 13];No. l:12-cv-132. Judge
O'Grady dismissed that motion on April 17,2013 and later denied plaintiffs request for a
certificateof appealability. No. 1:1 l-cr-348 [Dkt. Nos. 53, 60]. After plaintiff appealed the

^That Order inadvertently referred to theproposed amendment mvolving Justice Roush as
Docket Number 4. In fact, the court docket number for that attempt to amend the complaint is
Docket Number 5.

^The instant suit is one of several plaintiff has brought against various persons, including
prosecutors andjudges, who have had anything to do with his criminal case. In total, theplaintiff
has initiated seven other unsuccessful civil actions against such individuals, most of them Bivens
or Federal Tort Claims Act actions. See Matthews v. Sobh. No. 1:12-cv-294 (dismissed for

failure to state a claim on April 11,2012); Matthews v. Faulconer.et al.. No. 1:12-cv-1473
(dismissed for lack of jurisdiction and failure to state a claim on January 12, 2015; dismissal
affirmed.No. 15-6132 (4th Cir. May 22,2015)); Matthews v. Pauze. et al.. No. 1:13-cv-1020
(dismissed as duplicative of No. l:12-cv-1473 on January 22,2014; dismissal affirmed. No. 146178 (4th Cir. July 1,2014)); Matthews v. Pauze. No. l:14-cv-248 (dismissed with prejudice on
February 12,2015; dismiss^ affirmed. No. 15-6372 (4th Cir. July 27,2015)); Matthews v.
Brown. No. l:14-cv-250 (dismissed on January 22,2015); Matthews v. Faulconer. No. l:14-cv251 (dismissed on January 22,2015); Matthews v. Niemever. et al.. No. 14-cv-1719 (dismissed
as fnvolous on April 17, 2015).
2

dismissal of his motionto vacate, the FourthCircuit Court of Appeals denied a certificate of
appealability and dismissed the appeal in an unpublished opinion. United States v, Matthews.
No. 13-6759 (4th Cir. Oct. 8,2013). The Fourth Circuit subsequently denied the plaintiffs

motions for rehearing and for rehearing en banc. United States v. Matthews.No. 13-6759(4th
Cu*. Dec. 13,2013), and issued its mandate on December 23,2013.

On December 27,2013, plaintiff filed a motion for relief fromjudgment in the § 2255

action pursuantto Fed. R. Civ. P. 60(b), and subsequently filed numerous supplemental briefs
and amendments to that motion. No. 1:1l-cr-348 [Dkt. Nos. 71,73-80]. Plaintiff also moved
pursuant to 28 U.S.C. § 2244 for an order authorizing consideration of a second or successive

§ 2255 application, which motion was denied by the Fourth Circuit on April 7,2014. In re:
Alexander Matthews. No. 14-170 (4th Cir. Apr. 7,2014). On April 10,2015, Judge O'Grady

issued a Memorandum Opinion and Order granting in part and denying in part the plaintiffs
Rule 60(b) motion. No. 1:1 l-cr-348 [Dkt. Nos. 81, 82]. Plaintiff appealed that decision, and on
November 5,2015, the Fourth Circuit vacated Judge O'Grady's Order and remanded the matter

for further proceedings. United States v. Matthews.No. 15-6656(4th Cir. Nov. 5,2015).
Specifically,the Fourth Circuit determined that plaintiffs motion for relief from judgment was
not a true 60(b) motion but was instead a mixed Rule 60(b)/successive § 2255 motion, meaning

that he should have been given the opportunity to elect between deleting the improper claims or
having the entire motion treated as a successive § 2255 motion. Id at 3. That matter remains

pending before Judge O'Grady.
II.

DISCUSSION

In the pending Bivens action, plaintiff claims that Judge O'Grady violated his right to due

process by failing to rule on all of the claims presented in his § 2255 motion, by failing to force

the government to respond to all ofthose claims, by failing to address all of the claims presented
against Assistant United States Attorney Michael Pauze in a separate lawsuit, and bydismissing
another suit brought by the plaintiffagainst defense attorney Bennett Brown. Plaintiffseeks

reliefin the form of (1) declarations thatthese various rulings and purported failings by Judge
O'Grady violated plaintiffs constitutional rights and(2) injunctions requiring Judge O'Grady to
voidcertain orders andto rule on plaintiff's allegedly un-adjudicated post-conviction and civil
claims. In his first Rule 15(a) amendment of the complaint, plaintiff supplements these

allegations, arguing thatJudge O'Grady ignored evidence the plaintiff presented withrespect to
his ineffective assistance of counsel claim, specifically "11 claims of prejudice" suffered by
plaintiff as a result of the purportedly unreasonableperformance of his counsel. In his second

Rule 15(a) Amendment, plaintiffseeks to add claimsagainst three federal prosecutors for failing
to respond to all ofthe allegations in his § 2255 motion. For the reasons that follow, all of

plaintiff s claimsagainst Judge O'Grady will be dismissed with prejudice for failure to state a
claim on which relief can be granted, and his requests to add additional defendants and to
proceed in forma pauperis will be denied as moot.
A. Standard of Review

Pursuant to § 1915A, a court must dismiss a prisoner complaint brought against an
"officer or employee of a governmental entity" if it "is frivolous, malicious, or fails to state a

claimuponwhich reliefmay be granted." 28 U.S.C. § 1915A(a)-(b)(l). Whether a complaint
states a claim upon which relief may be granted is determined by "the familiar standard for a

motionto dismiss underFed. R. Civ. P. 12(b)(6)." Sumner v. Tucker. 9 F. Supp. 2d 641,642
(E.D. Va. 1998). Accordingly, the complaint "must set forth sufficient factual matter, acceptedas
true, to 'state a claim for relief that is plausible on its face,"' Ashcroft v. lobal. 556 U.S. 662,678

(2009) (quoting Bell Atlantic Corp. v. Twomblv. 550U.S. 544,547 (2007)). The courtmust
accept the plaintiffs allegations as true and should draw all reasonable inferences in the

plaintiffs favor, butonly to the extent that those allegations pertain to facts rather than to legal
conclusions. Id, These factual allegations must suffice "to raise a rightof reliefabove the
speculative level," Twomblv. 550 U.S. at 555, and must "allow[] the courtto drawthe

reasonable inference thatthe defendant is liable for the misconduct alleged." Iqbal. 555 U.S. at

678. Therefore, "[tjhreadbare recitals of the elements of a cause of action, supported bymere
conclusory statements, do not suffice," nor do "naked assertions devoid of further factual

enhancement." Id. (quoting Twomblv. 550U.S. at 557) (internal quotation marks omitted).
B. Plaintiff Fails to State a Claim Against Judge O'Gradv

Plaintiffs allegations against Judge O'Grady patently fail to state a claim on which relief

may be granted, primarily because Judge O'Grady is absolutely inmiune Jfrom liability for
injunctive reliefsought in a Bivens action. In Bivens. the United States Supreme Court

established that an individual injured by a federal agent's constitutional violation may bring an
action for damages against that agent. S^ Bivens. 403 U.S. at 397; FDIC v. Mever. 510 U.S.

471,484 (1994);

^

Trulock v. Freeh. 275 F.3d 391,399 n.l (4th Cm 2001). Because "a

Bivens action is the federal analog to suits brought against state officials" under 42 U.S.C.
§ 1983, Hartman v. Moore. 547 U.S. 250,254 n.2 (2006), the immunities available to federal

officials in Bivens actions are largely analogous to those available to state officers in § 1983
actions. See Butz v. Economou. 438 U.S. 478,500-01 (1978).
Several jurisdictions have ruled, however, that the immunities available under Bivens and

§ 1983 differ with respect to claims againstjudges for prospective injunctive relief Although

judges are absolutely immune from liability for damages arising out of then-judicial acts, Pierson

V. Ray. 386 U.S. 547, 553-54 (1967), state judges are not immune from claims for prospective
injunctive relief brought pursuant to § 1983. Pulliam v. Allen. 466 U.S. 522, 541-42 (1984). In

contrast, most federal courts which have addressed the question have determined that federal

judges maintain absolutejudicial immunity in Bivens actions even for equitable relief S^ Bolin
V. Story. 225 F.3d 1234,1242 (11th Cir. 2000) (finding that "the stronger argument favors the

grant of absolute immunity to the defendant federal judges" in Bivens actions); Mullis v. U.S.

Bankr. Court for the Dist. ofNev.. 828 F.3d 1385,1393-94 (9th Cir. 1987)(holding that "[t]he
judicial or quasi-judicial immunity available to federal officers is not limited to immunity from
damages, but extends to actions for declaratory, injunctive and other equitable relief), cert,
denied. 486 U.S. 1040 (1988); Newsome v. Merz. No. 00-4307,2001 WL 1006189, at *1 (6th

Cir. Aug. 21,2001) (citing Bolin and MulHs for the proposition that "federal judges are immune
from Bivens suits for equitable relief); Mehdipour v. Purcell. 173 F. Supp. 2d 1165,1167 (W.D.
Okla. 2001) (determining that in the absence of "any Supreme Court or Tenth Circuit case to the
contrary and in reliance upon decisions from the Sixth, Ninth, and Eleventh Circuits... federal

judges are absolutely immune from equitable relief under Bivens"^ afPd. 62 F. App'x 203 (10th
Cir. 2003), cert, denied. 540 U.S. 1056 (2003).

The Fourth Circuit has confirmed that this bar to liability applies in this jurisdiction. In
Stephens v. Herring. 827 F. Supp. 359 (E.D. Va. 1993), after extensively discussing the question
of whether injunctive relief was available against federal judges. Judge Payne concluded that

"the absence of either common law tradition or congressional mandate" permitting such relief, as
well as "the potential disruption to the system of federal appellate and collateral review of

recognizing such a right," demonstrated that federal judges are absolutely immune from claims
for injimctive relief Id at 361-65. The Fourth Circuit affirmed that result in an unpublished
6

opinion. Stephens v. Herring. 69 F.3d 533 (table), 1995 WL 660911 (4th Cir. Nov. 9,1995).
Accordingly, Judge O'Grady is absolutely immune from plaintiffs claims for equitable relief.
Moreover, barring such relief does not leave the plaintiff without a remedy for any

claimed constitutional violation that purportedly stems from Judge O'Grady's judicial acts. As
the Ninth Circuit reasoned in Mullis v. United States Bankruptcy Court for the District of
Nevada. "Congress has provided carefully structured procedures for taking appeals, including
interlocutory appeals, and for petitioning for extraordinary writs," procedures that permit

litigants like the plaintiff to "receive[] full federal court review of allegations of deprivations of
federal constitutional rights by federal judicial officers acting under color of federal law." Mullis.
828 F.2d at 1394. Allowing Bivens actions for equitable relief against federal judges in addition
to these avenues of relief would create confusion and "a multiplicity of litigation." Id.
Additionally, the availability of such appeals and extraordinary writs demonstrates that the

plaintiff would not be able to satisfy the prerequisites for injunctive relief—namely, that he have
both an inadequate remedy at law and be at risk of irreparable harm. Id at 1392. For these

reasons, plaintiffs claims against Judge O'Grady will be dismissed pursuant to § 1915A(b)(l)
for failure to state a claim.

C. Plaintiff States No Claim Against the Prosecutors

In his second effort to amend his complaint plaintiff seeks to add Assistant United States
Attorneys Ryan S. Faulconer, Peter August Frandsen, and Jack Hanly as defendants to this

lawsuit, arguing that they, like Judge O'Grady, failed to respond to all of the arguments he raised
in his § 2255 motion. Permission to add these claims has not been granted, and even if these
claims against these defendants were in this complaint they would have to be dismissed for

failure to state a claim on which relief may be granted. Prosecutors are absolutely immune, both

at common law and inBivens actions, for conduct that is "intimately associated with the judicial

phase ofthe criminal process." Lvles v. Sparks. 79 F.3d 372, 376 (4th Cir. 1996) (quotmg Imbler
V. Pachtman. 424 U.S. 409,430 (1976)). Responding to a defendant's § 2255 motion falls

squarely within that category ofconduct. Additionally, the appellate process provides the

appropriate avenue through which the plaintiffmay seek redress for any purported irregularities
inhow the prosecutors responded to his § 2255 motion. Accordingly, plaintiffs effort to add
these threeprosecutors to this litigation will be denied.
III.

CONCLUSION

For the reasons stated above, plaintiffs complaint will be dismissed pursuant to § 1915A

for failure to state a claim upon which relief may be granted, and plaintiff's requests to amend

his complaint to add Assistant United States Attorneys Faulconer, Frandsen, and Hanly as
defendants and toproceed informa pauperis will be denied by an appropriate Order to be issued
with this Memorandum Opinion.

Entered this oc day of February, 2016.

Alexandria, Virginia
Leonie M. Brinkema

United States District Judge