United States District Court, D. Arizona
Honorable Jennifer G. Zipps United States District Judge
before the Court is a Report and Recommendation issued by
United States Magistrate Judge Charles R. Pyle that
recommends granting Defendants' Motion to Dismiss (doc.
39) and Defendants' Motion to Dismiss for Failure to
Respond to Defendants' Motion to Dismiss (doc. 56), or,
in the alternative, granting Defendants' Motion to
Dismiss (doc. 39) and denying the Motion to Dismiss for
Failure to Respond (doc. 56) as moot. (Doc. 64.) Plaintiff
timely filed an objection on July 27, 2016. (Doc. 65.)
Defendants did not file a response to the objection.
Court has reviewed the record and concludes that Magistrate
Judge Pyle's recommendation to grant Defendants'
Motion to Dismiss (doc. 39) and deny as moot the related
Motion to Dismiss for Failure to Respond (doc. 56) is
appropriate. The Magistrate Judge correctly found that there
is no federal basis for any of Plaintiff's claims against
the “Francis” Defendants. Plaintiff seeks monetary
damages, but because an appointed attorney is not a
“federal official” for the purposes of a
Bivens claim, that claim fails. Cox v.
Hellerstein, 685 F.2d 1098, 1099 (9th Cir. 1982).
Further, Plaintiff's claims pertaining to the effective
representation by Defendant Francis in his criminal
proceedings and the alleged conspiracy between Defendant
Francis and the prosecutor in that case, would, if true,
render Plaintiff's conviction invalid. Under Heck v.
Humphries, 114 S.Ct. 2364 (1994), in order to sustain a
claim for damages for conduct that would render a conviction
or sentence invalid, Plaintiff would have to show that the
conviction or sentence has been reversed, expunged, or
otherwise declared invalid-a showing he cannot make. The
remaining claims are state law contract, malpractice, and
tort claims over which this Court will, in its discretion,
decline to exercise supplemental jurisdiction in the absence
of a federal cause of action. 28 U.S.C. § 1367(c)(4).
Objection,  Plaintiff asserts: (1) the information
given to the Court by Defendant Francis is incorrect; (2)
Plaintiff filed all the correct information that was required
by the Court; and (3) Plaintiff has the right to file the
present lawsuit without overturning any conviction because it
is a law suit involving negligence and legal malpractice.
(Doc. 65.) Plaintiff also reasserts many of the factual and
legal allegations against Defendant Francis, and attaches
several exhibits in support of his original
claims.With regards to Plaintiff's first
contention, this Court and the Magistrate Judge conducted
independent review of both the record and the legal authority
presented. Plaintiff's general assertion that Francis
gave incorrect information to the Court does not provide a
basis for rejecting the Magistrate Judge's conclusion.
Plaintiff fails to identify any incorrect information which
would change the legal analysis or outcome. Second,
Plaintiff's filings may include correct information, but
on the facts presented the filings are insufficient to
establish federal claims. Finally, Plaintiff's assertion
that this is a lawsuit involving negligence and legal
malpractice does not alter the outcome because the Defendants
are private parties. See 28 U.S.C. § 1346(b).
As noted above, Defendant Francis's status as a
court-appointed attorney does not make him an employee of the
United States under the Federal Tort Claims Act. Accordingly,
these claims are properly characterized as state law claims
and may be dismissed.
the Court finds that the Magistrate Judge's conclusions
are not clearly erroneous. Accordingly, the Court will adopt
the Report and Recommendation as follows:
Report and Recommendation (doc. 64) is accepted and adopted;
Defendants Tyler Francis and Ellinwood & Francis
LLP's Motion to Dismiss (doc. 39) is GRANTED;
Defendants' Motion to Dismiss for Failure to Respond
(doc. 56) is DENIED as moot;
Complaint (doc. 1) is dismissed without prejudice. The Clerk
of the Court is directed to close the case.
 Defendant United States of America,
substituted for the named Defendant, Assistant United States
Attorney Brian Decker, was dismissed on March 2, 2016. (Doc.
55.) The “Francis” Defendants include D. Tyler
Francis, Tyler D. Francis, and Ellinwood and Francis
 Plaintiff's Complaint asserts
claims for breach of covenant of good faith and fair dealing;
breach of implied in fact contract; breach of written
contract; negligence; pain and suffering; “pain and
unusual punishment”; false incarceration; danger to
Plaintiff's health, life, and safety due to false
incarceration; loss of personal property due to false
incarceration; “100% Percent Effective Assistance of
Counsel and Breach of Implied In Fact Contract (Verbal) to
Represent Tony Nixon Fair and Right According to the
Law”; False Incarceration Due to the Breach of Attorney
Agreement to Uphold the Law”; “Loss of Plaintiff
Tony Nixon Personal Property Due ...