United States District Court, D. Arizona
CINDY K. JORGENSON UNITED STATES DISTRICT JUDGE
Plaintiff brought this civil rights action in the Superior Court of Santa Cruz County, Arizona, and on June 26, 2015, it was removed by the United States. (Doc. 1.) The Complaint is confusing; it appears to seek money damages as a result of alleged unlawful actions involving his arrest and prosecution related to the criminal case United States v. Tony Nixon, CR-14-00668-TUC-DCB. (Doc. 1-4 at 38, Attach. (CR-14-00668, Doc. 63, “Motion to Suppress Material Witness Statements”).) In that criminal case, Plaintiff was convicted of transporting illegal aliens for profit. 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. The document attached to the Complaint is a Motion to Suppress Material Witness Statements in the criminal case. (CR-14-00668, Doc. 63.)
The Government filed a Motion to Dismiss on June 29, 2015. (Doc. 4.) Plaintiff filed a “Motion Against Defendant’s Motion to Dismiss Claim” construed as a Response (Doc. 14), Defendant filed a Reply in Support of United States’ Motion to Dismiss (Doc. 15), Plaintiff filed another “Motion Against Defendant’s Motion to Dismiss Claim, ” construed as a Supplemental Response (Doc. 16) and Defendant United States filed a Surreply (Doc. 22). This case was referred to Magistrate Judge Charles R. Pyle. (Doc. 12.)
On February 11, 2016, the Magistrate Judge heard oral argument on Defendant’s Motion to Dismiss. (Doc. 35). On February 16, 2016, the Magistrate Judge issued a Report and Recommendation (R & R) recommending that the Motion be granted. (Doc. 37.) The R & R gave the parties 10 days to file written objections. (Id. at 9.) On February 23, 2016, Plaintiff filed a “Motion for Another Conference Hearing on Understand and Clarification of Static Conference Hearing on Evident.” (Doc. 38.) On March 1, 2016, Plaintiff filed a Motion to Amend the Complaint. (Doc. 39.)
The Court has reviewed the Complaint, the Motion to Dismiss (Doc. 4), Plaintiff’s “Motion Against Defendant’s Motion to Dismiss Claim” construed as a Response (Doc. 14), Defendant’s Reply in Support of United States’ Motion to Dismiss (Doc. 15), Plaintiff’s second “Motion Against Defendant’s Motion to Dismiss Claim, ” construed as a Supplemental Response (Doc. 16), and Defendant’s Surreply (Doc. 22), the R & R, Plaintiff’s “Motion for Another Conference Hearing on Understand and Clarification of Static Conference Hearing on Evident.” (Doc. 38.), and Defendant’s response (Doc. 40). The Court will adopt the R & R, grant the Motion to Dismiss, deny the Motion to Amend the Complaint, and terminate the action.
II. Legal Standard
The Court reviews de novo the objected-to portions of the R & R. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). The Court reviews for clear error the unobjected-to portions of the R & R. Johnson v. Zema Systems Corp., 170 F.3d 734, 739 (7th Cir. 1999); see also, Conley v. Crabtree, 14 F.Supp.2d 1203, 1204 (D. Or. 1998).
Defendant United States asserts three grounds for dismissal of the Complaint: (1) 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); (2) all of Plaintiff’s claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994); and (3) U.S. Attorney Leonardo and AUSA Decker are entitled to absolute prosecutorial immunity; thus, the claims asserted against them in their individual capacity are barred.
The R & R finds that Plaintiff failed to exhaust his administrative remedies before filing his lawsuit, that the claims are barred by Heck, and that Defendants Leonardo and Decker are entitled to absolute immunity. (Doc. 37.) In his motion, Plaintiff seeks clarification whether he filed his civil law suits before filing his administrative claim form and appears to argue that even if filed in the wrong order, it was filed within the time frame and the cases can be accepted or refiled. (Doc. 38 at 2.) He notes that he has been found guilty in his criminal case and there is an appeal pending. (Id. at 2-3.) He asks if he can file the civil lawsuits without waiting for the overturning of the criminal cases. He argues that Brian Decker and Plaintiff’s former attorney Tyler D. Francis “cannot use immunity they was not acting within the law.” (Id. at 3-4.) Plaintiff asserts that Decker was required to contact Plaintiff’s former attorney Francis when Decker took a new statement from the material witnesses. According to Plaintiff, Decker cannot get immunity from a violation of federal law and the Border Patrol agents cannot get immunity.
A. FTCA and exhaustion of administrative remedies
The R & R ruled against Plaintiff on this defense because the administrative claim forms Plaintiff submitted are dated August 30, 2015 which is after the lawsuit was filed and a prematurely filed FTCA “lawsuit cannot become timely by the passage of time after the complaint is filed.” Price v. United States, 69 F.3d 46, 54 (5th Cir. 1995); Davis v. United States, 944 F.Supp.2d 36, 39-40 (D.D.C. 2013).
In his objections, Plaintiff seeks clarification whether he filed his civil lawsuits before filing administrative claim forms and appears to argue that even if filed in the wrong order, it was filed within the time frame and the cases can be accepted or refiled. (Doc. 38 at 2.)
The Court finds that the Magistrate Judge correctly ruled that Plaintiff cannot cure the untimely filing of the administrative claim form for purposes of this lawsuit; that is, this lawsuit must be dismissed because Plaintiff did not exhaust his administrative remedies before the lawsuit was commenced. But as the Magistrate Judge observed, “the action may be refiled if and when the plaintiff can fully satisfy the FTCA’s exhaustion requirement.” (Doc. 37 at 6, citing Cureton v. United ...