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Nixon v. Stiness

United States District Court, D. Arizona

February 16, 2016

Tony Nixon, Plaintiff,
v.
William Stiness, et al., Defendants.

REPORT AND RECOMMENDATION

CHARLES R. PYLE, Magistrate Judge.

Plaintiff, proceeding pro se, has filed a Complaint that originally named as Defendants William Stiness, Daniel Guzman, Henry Lopez, Tony Rowe, John S. Leonardo, Ricardo Novoa, and Brian R. Decker. (Doc. 1-4).[1] A Notice of Substitution was filed substituting the United States of America as Defendant in place of the individual Defendants. (Doc. 3).

Defendant United States ("Defendant") has filed a Motion to Dismiss (Doc. 4, Motion). Plaintiff has filed a "Motion Against Defendant's Motion to Dismiss Claim" construed as a Response (Doc. 14), Defendant has filed a Reply in Support of United States' Motion to Dismiss (Doc. 15), Plaintiff has filed another "Motion Against Defendant's Motion to Dismiss Claim" which is construed as a Supplemental Response (Doc. 16) and Defendant United States has filed a Surreply. (Doc. 22).

This case has been referred to the Magistrate Judge for a Report and Recommendation. (Doc. 12, Order). On February 11, 2016, the Magistrate Judge heard oral argument on Defendant's Motion to Dismiss. (Doc. 35). For the reasons that follow, the Magistrate Judge recommends that the Motion to Dismiss (Doc. 4) filed by Defendant United States should be granted and the Complaint dismissed.

Plaintiff's Complaint

Plaintiff has filed a Complaint seeking money damages as a result of alleged unlawful actions involving his arrest and prosecution that appear to be related to the criminal case United States v. Tony Nixon, Case No. CR-14-00668-TUC-DCB. (Doc. 1-4 at 38, Attachment ["Motion to Suppress Material Witness Statements" showing the case caption United States v. Tony Nixon, Case No. CR-14-00668]). Plaintiff alleges in the Complaint that on March 10, 2014, he drove to Arivaca, Arizona to pick up a young man at the request of a family member. The young man allegedly asked Plaintiff to pick up his "two friends" and Plaintiff was stopped by Border Patrol agents. Plaintiff alleges that an agent drove Plaintiff's vehicle to the border patrol checkpoint and Plaintiff was told he was under arrest. Plaintiff has asserted numerous claims that include pain and suffering, false incarceration, loss of family life and personal property, perjury, harassment, racial profiling, theft of money and property, and wrongful indictment.

Standards of Review

Defendant United States moves to dismiss the Complaint under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. (Doc. 4, Motion at 1). A motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure addresses the court's subject matter jurisdiction. "It is to be presumed that a cause of action lies outside this limited jurisdiction, " and the burden of establishing that jurisdiction exists rests upon the party asserting jurisdiction. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). A Rule 12(b)(1) motion may be either facial, where the inquiry is confined to the allegations in the complaint, or factual, where the court is permitted to look beyond the complaint to extrinsic evidence. Safe Air For Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004).

"A Rule 12(b)(6) motion tests the legal sufficiency of a claim." Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). "[A] plaintiff's complaint must have sufficient facts to state a facially plausible claim to relief.'" Conservation Force v. Salazar, 646 F.3d 1240, 1242 (9th Cir. 2011) (quoting Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010)). That is, a "plaintiff must plead[] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Telesaurus VPC, LLC. v. Power, 623 F.3d 998, 1003 (9th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). The factual allegations asserted in the complaint must be sufficient to "raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Dismissal can be based on the "lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Conservation Force, 646 F.3d at 1241-42. The allegations of a pro se plaintiff are liberally construed. Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007).

The Parties' Arguments

Defendant United States asserts three grounds for dismissal of the Complaint. Defendant contends that Plaintiff's tort claims should be dismissed because Plaintiff has not demonstrated a waiver of sovereign immunity and Plaintiff has not alleged or shown that he exhausted administrative remedies as required by the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2675(a). (Doc. 4, Motion at 4-5). Defendant next contends that all of Plaintiff's claims are barred based on Heck v. Humphrey, 512 U.S. 477 (1994). (Doc. 4, Motion at 6-7). Defendant last argues that the Complaint should be dismissed as to U.S. Attorney Leonardo and AUSA Decker because claims asserted against them in their individual capacity are barred by the doctrine of absolute prosecutorial immunity. ( Id. at 7-9). Defendant United States requests that the Court take judicial notice of the pleadings filed in United States v. Tony Nixon, Case No. CR-14-00668-TUC-DCB (D. Ariz.), in resolving these issues. ( Id. at 2, n.3).

Dismissal of Claims Based on the FTCA

"[T]he United States may not be sued without its consent" and "the existence of consent is a prerequisite for jurisdiction." Jachetta v. United States, 653 F.3d 898, 903 (9th Cir. 2011) (quoting United States v. Mitchell, 463 U.S. 206, 212 (1983)). The FTCA grants the federal court jurisdiction to hear claims for certain torts allegedly caused by the negligent or wrongful act or omission of any federal employee acting within the scope of his office or employment. 28 U.S.C. § 1346(b). To fall within the waiver of sovereign immunity for state tort claims pursuant to the FTCA, the plaintiff must exhaust administrative remedies prior to filing suit, meaning that the plaintiff must first file an administrative claim with the appropriate federal agency. 28 U.S.C. § 2675(a). This requirement is a "threshold jurisdictional requirement" and failure to comply results in an absolute bar to suit in the federal district court. McNeil v. United States, 508 U.S. 106, 113 (1993) ("the FTCA bars claimants from bringing suit in federal court until they have exhausted their administrative remedies."); Johnson v. United States, 704 F.2d 1431, 1442 (9th Cir. 1983) ("Exhaustion of the claims procedures established under the [FTCA] is a prerequisite to district court jurisdiction"). See also, Valadez-Lopez v. Chertoff, 656 F.3d 851, 855 (9th Cir. 2011). The time limitations under 28 U.S.C. § 2401(b) by which an administrative claim must be filed are non-jurisdictional and subject to equitable tolling. United States v. Wong, 135 S.Ct. 1625, 1638 (2015).

In support of its Motion to Dismiss, Defendant has submitted the Declaration of Brandon Brokaw, Deputy Administrative Officer in the United States Attorney's Office, District of Arizona, who states in the June 16, 2015 Declaration that an examination of records indicated that Plaintiff has not filed an administrative claim. (Doc. 4-1, Ex. 1). Defendant also has submitted the Declaration of Brian McBride, Acting Deputy Assistant Chief Counsel with the U.S. Customs and Border Protection Agency, who states in his June ...


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