Opinion
Civil Action 2:24-CV-00166-AJS-CBB
02-07-2025
OMARI PATTON, Plaintiff, v. KEITH STAMPER, CRAIG HALLER, JENNIFER HODGE, Defendants.
Arthur J. Schwab, Senior United States District Judge
REPORT AND RECOMMENDATION ON ECF NO. 22
Christopher B. Brown, United States Magistrate Judge
I. Recommendation
This civil action was initiated pro se by Plaintiff Omari Patton who is currently an inmate at the Federal Correctional Institution in Danbury, Connecticut. Patton alleges Defendants Keith Stamper, a Special Agent with the Drug Enforcement Administration (“Special Agent Stamper”), Craig Haller, an Assistant United States Attorney in the United States Attorney's Office for the Western District of Pennsylvania (“Attorney Haller”) and Jennifer Hodge, a Deputy Assistant Attorney General in the Criminal Division of the U.S. Department of Justice (“Attorney Hodge”), violated his civil rights in connection with allegedly false statements made by Defendants in an application to install a video surveillance device in a vehicle believed to be used in a drug conspiracy. He also alleges Attorney Haller made false statements to a grand jury related to a federal prosecution of Patton for conspiring to distribute a controlled substance in violation of 21 U.S.C. § 846.
The Court notes that according to the Federal Bureau of Prisons inmate locator website, Patton is currently incarcerated at FCI Danbury. However, Patton has failed to update his address of record as required by the Court. ECF No. 2 at ¶ 18. A copy of this Report and Recommendation will be mailed to Patton at his address of record and to FCI Danbury. Patton shall immediately file a change of address with the Court and failure to do so may result in the dismissal of his case for failure to prosecute. It is further noted that Patton has failed to respond to Court Orders to submit an election form either consenting to jurisdiction by the Magistrate Judge or electing to have a District Judge assigned to the case. ECF Nos. 25, 31, 33. A courtesy copy of this form will be mailed to Patton along with this Report and Recommendation and Patton shall immediately complete this form and file it with the Court.
This Court has subject matter jurisdiction under 28 U.S.C. § 1331 which gives original subject matter jurisdiction to federal courts in civil cases arising under the Constitution, laws, or treaties of the United States. Venue is proper in this district, as the alleged acts and omissions giving rise to Patton's claims occurred within the Western District of Pennsylvania. See 28 U.S.C. § 118(c).
Presently pending before the Court is Defendants' motion to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). ECF No. 22. The motion is fully briefed and ripe for consideration. ECF Nos. 23, 32.
For the reasons that follow, it is respectfully recommended that the Court grant Defendants' motion to dismiss and dismiss Patton's complaint with prejudice.
II. Report
a. Background
Initially, Patton provides scant background and context for his alleged civil rights violations. To the extent necessary, this Court will take judicial notice of matters of public record related to Patton's federal criminal prosecutions, including prior judicial opinions and orders, McTernan v. City of York, Penn., 577 F.3d 521, 526 (3d Cir. 2009); Smith v. Lynn, 809 Fed.Appx. 115, 117 (3d Cir. 2020)(unpublished), and indictments attached to Defendants' motion to dismiss. Peltz v. State Farm Mut. Automobile Ins. Co., 538 F.Supp.3d 498, 504 (W.D. Pa. 2021). Likewise, the Court will consider the documents Patton attached to his complaint.
In 2019, Patton was charged with being part of a multi-defendant conspiracy which distributed Schedule I, II and III controlled substances in violation of 21 U.S.C. § 846 that allegedly took place between January 2017 and January 2019. ECF No. 23-4. Following a jury trial, Patton was acquitted of these charges on March 11, 2022. Criminal No. 2:19-cr-8 (W.D.Pa. 2019) (ECF No. 3310).
In May of 2022, not long after Patton was acquitted of the conspiracy charge, a grand jury indicted Patton for multiple violations of 18 U.S.C. §§ 1791(a)(1) and 1791(a)(2) for Attempt to Provide Contraband to an Inmate and Attempt to Obtain Contraband in Prison, namely a synthetic cannabinoid, in violation of 18 U.S.C. §§ 1791(a)(1) and 1791(a)(2) in connection with the K2 paper. ECF No. 23-5; ECF No. 23-3 at 3-4. In February 2023, Patton went to trial on these charges and was found guilty on all counts and was later sentenced to 63 months in prison. ECF No. 23-3 at 1; ECF No. 23-6 at 3.
Patton initiated the instant civil action on February 8, 2024 alleging his civil rights were violated during the investigation of the conspiracy charges because Defendants “committed perjury” when they presented applications to a federal judge which requested permission to use video surveillance and because Attorney Haller allegedly made “false statements” on January 8, 2019 to a grand jury about Patton's alleged criminal conduct. ECF No. 9 at ¶¶ 5-8, 12, 17-18, 20-23; 9-11, 1516, 19, 24.
Applications to Use Video Surveillance
Patton alleges during the investigation of the conspiracy charges in 2018, Attorney Haller and Special Agent Stamper presented two applications requesting permission to use to install and use a video surveillance device inside a vehicle that Defendants maintained was “being and will continue to be used” by the conspirators, including Patton, to traffic drugs and launder money. ECF No. 9-3 at 3, 8. Patton includes Attorney Hodge in his complaint as she authorized “the making of the applications.” ECF No. 9 at ¶ 6. Patton alleges that Defendants “did not have probable cause for the application for video surveillance because Patton was incarcerated, and it is impossible that he could be using the vehicle or recorded inside by video.” Id. at ¶ 12.
Patton was serving a federal prison sentence during the alleged time-period of the conspiracy- thus his participation in it was alleged to have occurred while he was a prisoner.
Of note, Patton previously made identical arguments during his first criminal trial in 2021 before the Honorable J. Nicholas Ranjan that the affidavits supporting the applications were false and misleading. ECF No. 23 at 3. Judge Ranjan flatly rejected Patton's arguments and found:
[T]here is nothing facially false or misleading about the affidavits. Mr. Patton questions the fact that the affidavits state that the target vehicle (i.e., Mr. Perry's pick-up truck) was being and would continue to be used by Mr. Patton and others to commit certain drug-related and moneylaundering offenses. According to Mr. Patton, such use would have been impossible because he was incarcerated.
The premise of Mr. Patton's complaint is faulty. As other courts have observed, it is not impossible for an incarcerated defendant to remain involved in the drug activities of a criminal organization.... And in this case, communications between Mr. Patton and Mr. Perry were, in fact, intercepted via the wiretap. ECF 3001, p. 2. That's because Mr. Patton made at least one phone call to Mr. Perry while Mr. Perry was inside the pickup truck. Id. That “use” is what was described in the wiretap application....
[E]ven if Mr. Patton's premise were correct, it still would not render the warrant applications deficient. This is a drug conspiracy case. Mr. Patton is alleged to have worked in concert with one of more of many other “Target Subjects” listed in the warrant applications. Considering this allegedly jointly undertaken criminal activity, which is detailed throughout the applications, Mr. Patton did not have to physically be inside the truck for probable cause to exist for the wiretaps. As the government here correctly argues, just because a person is listed “as a target subject in an affidavit doesn't mean [that he or she is] a user of the facility or the location that's being intercepted.” Transcript of the June 28, 2021 Status Conference. Rather, the government is “just listing somebody who might be intercepted over that telephone as having been called by the person who does use the phone or in this instance, having been mentioned by somebody who is in the truck.” Id.ECF No. 23-1 at 1-2. Judge Ranjan also found the fact of Patton's incarceration was not misleadingly omitted from the affidavits because “[b]oth affidavits clearly stated that Mr. Patton was serving a federal prison sentence at the time of the application.” Id. at 2 n. 1.
Grand Jury Proceedings
Patton also takes issue with statements made by Attorney Haller during Grand Jury proceedings. Specifically, Patton alleges that on January 8, 2019, Attorney Haller misrepresented to the Grand Jurors “that Patton conspired to distribute schedule one, two and three controlled substances . . . [and] fabricated evidence and made a false representation that all the substances were controlled substances.” Id. at ¶ 9. Patton also claims that “Defendants did not have probable cause for the money laundering offense because [Attorney] Haller admitted to Patton's counsel that his role was limited to synthetic marijuana.” Id. at ¶ 13. Patton seemingly argues that Attorney Haller misrepresented that Patton's role in the conspiracy involved something more than just synthetic marijuana, that the synthetic marijuana was in fact a controlled substance at the time, and that he was involved in money laundering. Id. at ¶¶ 15-16, 19.
Although indicted for conspiring to distribute schedule I, II, and III controlled substances, the Government limited its evidence at trial that Patton was responsible for the distribution of synthetic marijuana, a schedule I controlled substance. Patton argues the synthetic marijuana was not a Schedule I controlled substance at the time of his alleged conduct.
Again, of note, Patton's arguments were considered by Judge Ranjan in the underlying criminal case and rejected. Judge Ranjan found that the prosecution “narrowed the time frame of the alleged conspiracy to distribute synthetic cannabinoids . . . [so that] the conspiracy for certain Defendants could only begin after those substances became scheduled[,]” and made clear it was not relying on synthetic cannabinoids before they were scheduled. ECF No. 23-2 at 3, 8 (emphasis in original).
Patton filed this civil action on February 8, 2024 and asserts the following ten separate causes of action.
• Count 1 - malicious prosecution;
• Count 2 - false arrest and false imprisonment;
• Count 3 - Fourth Amendment claims pursuant to 42 U.S.C. § 1983;
• Count 4 - civil conspiracy;
• Count 5 - conspiracy against rights;
• Count 6 - deprivation of rights;
• Count 7 - emotional distress;
• Count 8 - no qualified immunity;
• Count 9 - no absolute immunity; and
• Count 10 - false declarations before Grand Jury or Court under 18 U.S.C. § 1623.
He sues Defendants in their individual and official capacities and seeks monetary damages for his claims. ECF No. 9 ¶¶ 3, 42, 45, 48, 51, 65.
b. Standard of Review - Fed.R.Civ.P. 12(b)(6)
The applicable inquiry under Fed.R.Civ.P. 12(b)(6) is well settled. A complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief;” Fed.R.Civ.P. 8(a)(2), and can be dismissed for “failure to state a claim upon which relief can be granted[.]” Fed.R.Civ.P. 12(b)(6). A defendant bears the burden of showing a plaintiff's complaint fails to state a claim. See Gould Elecs. Inc. v. U.S., 220 F.3d 169, 178 (3d Cir. 2000).
To survive a motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell A. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint must be dismissed if it merely alleges entitlement to relief without supporting facts. Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009). This “‘does not impose a probability requirement at the pleading stage,' but instead ‘simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of' the necessary element.'” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 556). The court need not accept as true “unsupported conclusions and unwarranted inferences,” Doug Grant, Inc. v. Greate Bay Casino Corp., 232 F.3d 173, 183-84 (3d Cir. 2000), nor a plaintiff's “bald assertions” or “legal conclusions.” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). The court's role is limited to determining whether a plaintiff is entitled to offer evidence in support of their claims - not if they will ultimately prevail. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (overruled on other grounds).
In deciding a motion to dismiss, a court may consider the allegations in the complaint, exhibits attached to the complaint, matters of public record and any document “integral to or explicitly relied upon in [framing] the complaint.” Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014) (cleaned up). If a court considers other matters outside of this list, the motion must be converted to a motion for summary judgment after giving the parties a reasonable opportunity to present all material discovery relevant to a summary judgment motion before the Court's decision. Fed.R.Civ.P. 12(d).
Finally, because Patton is proceeding pro se, the allegations in the complaint must be held to “less stringent standards than formal pleadings drafted by lawyers[.]” Haines v. Kerner, 404 U.S. 519, 520 (1972). If the Court can reasonably read Patton's complaint to state a claim upon which relief can be granted, it will do so despite his failure to cite proper legal authority, confusion of legal theories, poor syntax, and sentence construction, or unfamiliarity with pleading requirements. See Boag v. MacDougall, 454 U.S. 364 (1982). Despite this leniency, “pro se litigants still must allege sufficient facts in their complaints to support a claim.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (citing Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996)).
c. Discussion
Defendants argue that Patton's complaint should be dismissed in its entirety and raise several arguments in support of dismissal. Because it is recommended that Patton's complaint be dismissed with prejudice as Patton asserts claims that have no private right of action, are not legally recognized, Defendants are entitled to immunity and his purported Bivens claims are not recognized causes of action, only that analysis follows.
i. Counts 5, 6 and 10: Claims Based on Criminal Statutes with No Private Right of Action
Patton asserts three claims based on federal criminal statutes: Count 5 “conspiracy against rights” under 18 U.S.C. § 241; Count 6 “deprivation of rights” under 18 U.S.C. § 242; and Count 10 “false declarations before grand jury or court” under 18 U.S.C. § 1623. The criminal statutes invoked by Patton do not provide a private right of action nor do they provide any basis for civil liability. Davis v. Warden Lewisburg USP, 594 Fed.Appx. 60, 61 n. 3 (3d Cir. 2015) (unpublished) (18 U.S.C. § 242); Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980) (18 U.S.C. §§ 241, 242 provide no private right of action and cannot form the basis of a civil suit); Horsch v. Cantymagli, No. 24-CV-1183, 2024 WL 1444020, at *3 (E.D. Pa. Apr. 3, 2024) (“The grand jury statute, § 1623, also does not provide a plaintiff with a private cause of action.”). Given this, it is recommended the claims raised in Counts 5, 6, and 10, be dismissed with prejudice as amendment would be futile.
When a complaint is dismissed for failure to state a claim, a court must allow for a curative amendment, except where an amendment would be futile or inequitable. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).
ii. Counts 8 and 9: Claims for “No Qualified Immunity” and “No Absolute Immunity” are Not Civil Causes of Action
Patton presents claims that Defendants are neither entitled to qualified immunity (Count 8) nor absolute immunity (Count 9). As Defendants correctly point out, the qualified and absolute immunity doctrines are not grounds for a civil cause of action, but rather independent legal doctrines that form the basis of a defendant's affirmative defense. See Azpilcueta v. Nevada ex rel. Transp Auth., No. 3:09-CV-00593-LRH, 2010 WL 2681855, at *2 n.3 (D. Nev. July 2, 2010) (qualified immunity is not a claim for which relief can be granted); Desi's Pizza, Inc. v. City of Wilkes-Barre, 321 F.3d 411, 428 (3d Cir. 2003) (absolute immunity is an affirmative defense). As with Counts 5, 6, and 10, Counts 8 and 9 are not cognizable. Therefore, it is recommended these claims be dismissed with prejudice as amendment would be futile.
iii. Count 3: 42 U.S.C. § 1983 does not apply to action taken under federal law
In Count 3, Patton specifically asserts a claim against Defendants under 42 U.S.C. § 1983 for various Fourth Amendment violations. ECF No. 9 at ¶¶ 37-42. Defendants argue this claim must be dismissed because none of the Defendants are state actors. ECF No. 23 at 21. Again, Defendants are correct. “Claims under Section 1983 require action taken under color of state, not federal law.” Davis v. Samuels, 962 F.3d 105, 115 (3d Cir. 2020). Defendants here are federal actors - all employees of the Department of Justice - acting under color of federal law, therefore Patton cannot bring § 1983 claims against them. Given this, it is likewise recommended the claim raised at Count 3 be dismissed with prejudice as amendment would be futile.
iv. Patton's Remaining Claims: Counts 1, 2, 4, and 7
Patton's remaining claims - malicious prosecution (Count 1), false arrest and false imprisonment (Count 2), “civil conspiracy” (Count 4), and “emotional distress” (Count 7) - which are liberally construed as claims under Bivens, see infra at pg. 18, are brought against Defendants in their individual and official capacities. Defendants argue that dismissal of these claims is appropriate because they are entitled to sovereign immunity, absolute prosecutorial immunity, Patton's claims are not recognized under Bivens, and his claims are barred by Heck v. Humphrey, 512 U.S. 477, 487 (1994). The Court agrees Defendants are entitled to immunity and Patton's claims are not recognized under Bivens and that analysis follows.
1. Immunity
Defendants' immunity assertions are threshold issues for the Court to determine. Therefore, the Court will consider defendants' asserted immunity defenses before considering the merits of Patton's claims because “immunity, where justly invoked, properly shields defendants ‘not only from the consequences of litigation's results but also from the burden of defending themselves.'” Tuck v. Pan Am. Health Org., 668 F.2d 547, 549 (D.D.C. 1981) (quoting Dombrowski v. Eastland, 387 U.S. 82, 85 (1967)).
a. Sovereign Immunity
Patton brings his claims against Defendants in both their individual and official capacities. ECF No. 9 at ¶ 3. “An action against government officials in their official capacities constitutes an action against the United States[.]” Lewal v. Ali, 289 Fed.Appx. 515, 516 (3d Cir. 2008)(unpublished). Sovereign immunity bars constitutional claims under Bivens, absent an explicit wavier and the United States has not waived its sovereign immunity for such claims. Webb v. Desan, 250 Fed.Appx. 468, 471 (3d Cir. 2007)(unpublished). Accordingly, it is recommended that any claims brought against Defendants in their official capacities be dismissed with prejudice as amendment would be futile.
Patton only seeks monetary damages. ECF No. 9 at ¶¶ 42, 45, 48, 51, 65.
b. Absolute Prosecutorial Immunity
As for the claims brought against Defendants in their individual capacities, Defendants argue that they are entitled to prosecutorial immunity. ECF No. 23 at 8-11. Patton more or less concedes that Attorneys Haller and Hodge are entitled to immunity (“even if defendant Haller and Hodge are entitled to immunity .. .”), but argues Special Agent Stamper “is not because he is an officer, and officers are held liable in malicious prosecution suits. . . [and p]rosecutorial immunity does not extend to law enforcement officers carrying out law enforcement functions.” ECF No. 32 at 2.
Prosecutors have absolute immunity from federal civil suits for acts “‘intimately associated with the judicial phase of the of the criminal process,' such as ‘initiating a prosecution and . . . presenting the State's case.'” Yarris v. Cnty. of Delaware, 465 F.3d 129, 135 (3d Cir. 2006) (quoting Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976)). See also Brawer v. Horowitz, 535 F.2d 830, 834 (3d Cir. 1976) (holding that federal prosecutors are entitled to the same absolute immunity for Bivens claims afforded to state prosecutors for § 1983 claims). Prosecutors are afforded this immunity because “harassment by unfounded litigation would cause a deflection of the prosecutor's energies from his public duties, and the possibility that he would shade his decisions instead of exercising the independence of judgment required by his public trust.” Imbler, 424 U.S. at 423. If the prosecutor's actions served an investigative function that is “normally performed by a detective or police officer” rather than serving the prosecutor's role as a quasi-judicial advocate, absolute immunity does not apply. Roberts v. Lau, 90 F.4th 618, 620-23 (3d Cir. 2024), cert. denied sub nom. Baer v. Roberts, 220 L.Ed.2d 169 (Oct. 21, 2024).
At the motion to dismiss stage, the prosecutor “has the burden to show that the conduct triggering absolute immunity clearly appears on the face of the complaint.” Roberts, 90 F.4th at 623 n. 3 (cleaned up). While this burden is “heavy” at the motion to dismiss stage, “it is not insurmountable.” Dobrosky v. Lometti, No. CV 23-2612, 2023 WL 8373164, at *10 (E.D. Pa. Dec. 4, 2023).
Absolute prosecutorial immunity extends to “the knowing use of false testimony before the grand jury and at trial.” Burns v. Reed, 500 U.S. 478, 485 (1991). As for Patton's claims that Attorney Haller made misrepresentations during the grand jury proceedings that the synthetic marijuana was a controlled substance, even assuming Patton's claims are true, Attorney Haller is absolutely immune for allegedly using false testimony before the grand jury. Karkalas v. Marks, No. CV 19-948, 2019 WL 3492232, at *14 (E.D. Pa. July 31, 2019), aff'd, 845 Fed.Appx. 114 (3d Cir. 2021)(unpublished) (finding DOJ Attorney entitled to prosecutorial immunity for allegedly false statements made to grand jury for Bivens claim); Graham v. Morgan, No. 21-CV-1831, 2021 WL 3708710, at *2 (E.D. Pa. Aug. 20, 2021) (federal prosecutor entitled to absolute immunity for claims that he presented “falsified and perjured statements” during a grand jury hearing); Collazo v. Guarducci, No. CV 15-2838 (SRC), 2015 WL 7258854, at *1 (D.N.J. Nov. 16, 2015) (prosecutor entitled to absolute immunity for allegedly submitting false testimony and failing to present exonerating evidence to the grand jury).
Accordingly, prosecutorial immunity bars Patton's claims against Attorney Haller related to the misrepresentations he allegedly made during the grand jury proceedings.
As for the applications to install and use video surveillance devices, Patton maintains that Defendants “fabricated evidence and committed perjury and fraud” in those applications because Defendants indicated the target vehicle was being used by Patton and others to commit the drug-trafficking and money-laundering offenses and it was likely that evidence of those crimes would be recorded on the video inside the vehicle. ECF No. 9 at ¶¶5-6, 8. Patton maintains these representations were false because he was incarcerated at the time, could not physically be present in the vehicle, and because he played no role in the offense charged. Id. at 13-14, 17, 21.
The conduct attributed to Attorney Hodge is that she “authorized the making of the applications.” ECF No. 9 at ¶ 6. The conduct attributed to Attorney Haller is that he submitted the wiretap applications to a federal judge for an order for video surveillance that contained the alleged falsehoods. ECF No. 9 at ¶ 7.
From the face of Patton's complaint, his claims against Attorneys Hodge and Haller focus entirely on acts “intimately associated with the judicial phase of the criminal process” which are prosecutorial in nature and entitled to absolute immunity. Fogle v. Sokol, 957 F.3d 148, 164 (3d Cir. 2020). Claims that prosecutors presented “perjured testimony” or used “false and fabricated and unlawfully obtained evidence” to obtain a warrant are entitled to prosecutorial immunity. Noble v. U.S., 855 Fed.Appx. 816, 820 (3d Cir. 2021)(unpublished). While Attorney Haller signed the application, the affidavit of probable cause was authored by Special Agent Stamper. See ECF No. 9-3 at 1. Courts have only declined to extend absolute immunity for prosecutors who themselves make a false statement of fact in an affidavit as a witness in support of a warrant application. Kalina v. Fletcher, 522 U.S. 118, 129-31 (1997); Van de Kamp v. Goldstein, 555 U.S. 335, 343 (2009). That is not the case here. Attorney Haller incorporated statements made in Special Agent Stamper's affidavit into the body of his application and attached the affidavit thereto. Patton's claims simply allege that Attorney Haller (and by virtue of her “authorization” - Attorney Hodge) presented the alleged misrepresentations by Special Agent Stamper to get authorization to install and use a video surveillance device in a vehicle. Such conduct is prosecutorial in nature and Attorneys Hodge and Haller are entitled to absolute immunity for Patton's claims that they included fabricated evidence and committed perjury and fraud in the applications.
Accordingly, it is recommended that all claims against Attorneys Haller and Hodge be dismissed with prejudice on this basis as amendment would be futile.
As for Special Agent Stamper, Defendants maintain that as an investigator, he is entitled to the same absolute immunity as Attorneys Haller and Hodge. ECF No. 23 at 8 (quoting Fuchs v. Mercer Cnty., 260 Fed.Appx. 472, 475 (3d Cir. 2008)(unpublished)). While Defendants are correct that “investigators for a prosecutor performing investigative work in connection with a criminal prosecution deserve the same absolute immunity as the prosecutor,” Fuchs, 260 Fed.Appx. at 475 (quoting Davis v. Grusemeyer, 996 F.2d 617, 632 (3d Cir. 1993), abrogated on other grounds by Rolo v. City Investing Co. Liquidating Tr., 155 F.3d 644 (3d Cir. 1998)), prosecutorial immunity “does not extend to law enforcement officers carrying out law enforcement functions” like “submitting a probable cause affidavit[.]” Saintil v. Borough of Carteret, No. 22-2898, 2024 WL 3565308, at *7 n. 15 (3d Cir. July 29, 2024)(unpublished) (citing Malley v. Briggs, 475 U.S. 335, 342-44 (1986)). See also U.S. v. Washington, 869 F.3d 193, 219 (3d Cir. 2017) (federal agents do not enjoy the “categorical protection” of absolute immunity). Special Agent Stamper is a law enforcement officer with the Drug Enforcement Administration and is alleged to have submitted an affidavit of probable cause in support of applications to install and use of a video surveillance device which contained falsehoods with respect to Patton's role in the conspiracy and his ability to use the target vehicle. It therefore cannot square that Special Agent Stamper is entitled to the same absolute immunity enjoyed by Attorneys Haller and Hodge and the Court will address the merits of the remaining Bivens claims against him.
2. Counts 1, 2, and 4 Do Not State Recognized Claims under Bivens v. Six Unknown Agents , 403 U.S. 388 (1971)
Patton asserts claims for malicious prosecution (Count 1), false arrest and false imprisonment (Count 2) and “civil conspiracy” (Count 4). Patton does not provide any legal authority in support of these claims. Given this Court's duty to construe Patton's complaint liberally, the Court construes these as Fourth Amendment claims as asserted under Bivens v. Six Unknown Agents, 403 U.S. 388 (1971). Defendants have likewise construed these claims under Bivens and argue these claims must be dismissed because recognizing these claims would impermissibly extend Bivens to a new context. ECF No. 23 at 17. Patton does not respond to this argument. Defendants are correct that - notwithstanding Attorney Haller and Hodge's right to absolute immunity on these claims - Patton's Bivens claims expand the Bivens remedy to a new context and special factors counsel against such an expansion and these claims must be dismissed.
Despite the Court's duty to construe Patton's claims liberally, this duty is not limitless and pro se litigant must still allege sufficient facts in their complaints to state a claim. As stated, the Court is only required to construe a pro se complaint so “as to do substantial justice” which must be tempered by the defendants' need for fair notice of the claims against them. Contl. Collieries v. Shober, 130 F.2d 631, 635 (3d Cir. 1942). Therefore, the Court will not construe Patton's complaint as setting forth any claims under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq., (“FTCA”) - including his claim for “emotional distress” (Count 7) - as he provides no plausible basis to suggest he has exhausted any required administrative remedies to bring such a claim or otherwise stated a claim under the FTCA. Livera v. First Nat. State Bank of New Jersey, 879 F.2d 1186, 1194 (3d Cir. 1989) (failure to exhaust administrative remedies for claims under the FTCA is a “jurisdictional requirement not subject to waiver.”); Shelton v. Bledsoe, 775 F.3d 554, 569 (3d Cir. 2015) (“No claim can be brought under the FTCA unless the plaintiff first presents the claim to the appropriate federal agency and the agency renders a final decision on the claim” and considering the exhaustion requirement jurisdictional).
Bivens provides a damage remedy for constitutional claims committed by federal officials in very limited situations. Egbert v. Boule, 596 U.S. 482, 486 (2022). The United States Supreme Court has only recognized an implied damages remedy for constitutional violations against federal officials under three circumstances: (1) in Bivens, recognizing implied cause of action under the Fourth Amendment right against unreasonable searches and seizures; (2) in Davis v. Passman, 442 U.S. 228 (1979) for an employment-based gender discrimination claim under the Fifth Amendment Due Process Clause; and (3) in Carlson v. Green, 446 U.S. 14 (1980) for claims brought by federal inmates against federal prison officials for inadequate medical care under the Eighth Amendment Cruel and Unusual Punishments Clause. “These three cases-Bivens, Davis, and Carlson-represent the only instances in which the Court has approved of an implied damages remedy under the Constitution itself.” Ziglar v. Abbasi, 582 U.S. 120, 131 (2017). Over the course of nearly five decades since the Supreme Court decided Bivens, it “has consistently refused to expand Bivens actions beyond these three specific contexts.” Mack v. Yost, 968 F.3d 311, 318 (3d Cir. 2020). Expanding the Bivens remedy beyond these contexts “is now a disfavored judicial activity,” because the courts must be careful not to intrude on the role of Congress to enact statutes for claims outside of the Bivens context. Id. at 135-36.
The Supreme Court provided a two-step analysis to determine whether to imply a Bivens cause of action in a new context. First, the Supreme Court instructed “if the case is different in a meaningful way to previous Bivens cases decided by [the Supreme] Court, then the context is new.” Ziglar, 582 U.S. at 139; Hernandez v. Mesa, 589 U.S. 93, 102 (2020) (“our understanding of a ‘new context' is broad.”). Second, if the case presents a new context, “a Bivens remedy is unavailable if there are ‘special factors' indicating that the Judiciary is at least arguably less equipped than Congress to weigh the costs and benefits of allowing a damages action to proceed.” Egbert, 596 U.S. at 492 (cleaned up). “If there is even a single reason to pause before applying Bivens in a new context, a court may not recognize a Bivens remedy.” Id. (cleaned up). The Supreme Court has emphasized that while this is a two-step approach, “those steps often resolve to a single question: whether there is any reason to think that Congress might be better equipped to create a damages remedy.” Id. The court must broadly inquire whether “there is any reason to think that ‘judicial intrusion' into a given field might be ‘harmful' or ‘inappropriate'” and if the answer is “yes,” or even potentially yes, the plaintiff cannot recover under Bivens. Id. (quoting U.S. v. Stanley, 483 U.S. 669, 681 (1987)).
New Context
Upon careful consideration of the claims in this case, Patton's Bivens claims are notably different from claims raised in Bivens, Davis and Carlson. Patton raises Fourth Amendment claims for false arrest, false imprisonment and malicious prosecution and a civil conspiracy. In doing so, he relies upon two straightforward factual allegations: (1) Defendants submitted an application to install and use a video surveillance device in a vehicle which contained falsehoods with respect to Patton's role in the conspiracy and his ability to use the vehicle; and (2) Attorney Haller made false statements to the grand jury by indicating the synthetic marijuana Patton allegedly distributed was a controlled substance as well as indicated he was responsible for a conspiracy to distribute additional controlled substances and money laundering.
Several United States Courts of Appeal, including our own, have declined to extend a Bivens remedy to Fourth Amendment claims alleging federal officers made false statements leading to the investigation, arrest and prosecution of the plaintiff. Xi v. Haugen, 68 F.4th 824, 834 (3d Cir. 2023) (Fourth Amendment claims that federal agents made false statements and material omissions of exculpatory evidence that led the Government to investigate, arrest and prosecute plaintiff were a “new context” under Bivens); Sheikh v. U.S. Dept. of Homeland Sec., 106 F.4th 918, 925-26 (9th Cir. 2024) (Fourth Amendment claims based on allegations of the fabrication of evidence related to a criminal prosecution “meaningfully differ from allegations in Bivens” and “present a new context.”); Quinones-Pimentel v. Cannon, 85 F.4th 63, 71 (1st Cir. 2023), cert. denied, No. 23-1343, 2024 WL 4426689 (U.S. Oct. 7, 2024) (Fourth Amendment claims against “prosecutors, federal line-level investigative officers, and private, corporate employees acting under color of federal law, who were alleged to have jointly fabricated evidence in support of warrants” seized physical evidence and exceeded the scope of the search warrants were a “new context” under Bivens); Annappareddy v. Pascale, 996 F.3d 120, 135-137 (4th Cir. 2021) (Fourth Amendment claims that federal officials falsified an affidavit submitted to obtain the search warrant and falsifying evidence in support of the arrest warrant and original indictment were a “new context” under Bivens); Cantu v. Moody, 933 F.3d 414, 423 (5th Cir. 2019) (Fourth Amendment claims that federal agents falsified affidavits leading to the prosecutors charging plaintiff and plaintiff's alleged unjustified detention was a “new context” under Bivens); Farah v. Weyker, 926 F.3d 492, 496-98 (8th Cir. 2019) (if a federal law enforcement officer “lies, manipulates witnesses, and falsifies evidence” including making false statements to a grand jury, the Constitution “does not imply a cause of action under” Bivens).
While Patton's claims most closely resemble Bivens itself, given the apparent consensus that Fourth Amendment claims alleging federal officers made false statements in an affidavit for a warrant and to the grand jury leading to the investigation, arrest and prosecution of the plaintiff are not implied under Bivens, it is clear from the allegations in Patton's complaint that his claims present a new context for Bivens that is meaningfully different from the claims recognized in Bivens or its progeny.
In Bivens, a citizen sued federal agents for a warrantless search of his house and arresting him without probable cause. Bivens, 403 U.S. at 389.
Special Factors
Having concluded that Patton's claims present a new context, the Court must consider whether “any special factors . . . counsel hesitation” in extending Bivens. Hernandez, 589 U.S. at 94. “[T]he existence of ‘even a single reason to pause before applying Bivens' forecloses relief[.]'” Xi, 68 F.4th at 836 (quoting Egbert, 596 U.S. at 491).
If alternative remedies are available to the plaintiff, this “is reason enough to limit the power of the Judiciary to infer a new Bivens cause of action.” Id. at 837 (quoting Egbert, 596 U.S. at 493). Congress has provided for an alternative remedial structure under these circumstances: the Hyde Amendment, 18 U.S.C. § 3006A that “allows courts to award attorney's fees and litigation costs to a prevailing criminal defendant when the court finds that the position of the United States was vexatious, frivolous, or in bad faith.” Xi v. Haugen, 68 F.4th 824, 837 (3d Cir. 2023) (cleaned up) (finding the Hyde Amendment was an available alternative remedy even to those who were not convicted and had no remedy under the Hyde Amendment, because Congress intended only to provide a remedy to convicted defendants and the courts cannot “second-guess that calibration by superimposing a Bivens remedy.”). An alternative remedy “need not provide complete relief or be as effective as an individual damages remedy to foreclose Bivens relief.” Id. Therefore, Patton's Bivens claims impermissibly expand the Bivens remedy to a new context that special factors counsel against. Given this, it is recommended the claims raised in Counts 1, 2, and 4 be dismissed with prejudice as amendment would be futile.
The same is true for Patton's “civil conspiracy” claim (Count 4), as it is not an independent basis for liability in a civil rights action under Bivens where there is no underlying constitutional violation. Clayworth v. Luzerne Cnty., Pa., 513 Fed.Appx. 134, 138 (3d Cir. 2013)(unpublished); Kimberlin v. U.S. Dept. of J., 788 F.2d 434, 439 (7th Cir. 1986).
3. Count 7: “Emotional Distress” is not a Cognizable Claim
Patton alleges as a result of his malicious prosecution that he suffered “emotional distress” which caused him heart failure for which he underwent open heart surgery and asserts a claim of “emotional distress” in Count 7. “Emotional distress” related to an alleged malicious prosecution is not itself a separate cause of action. Rather, it is a type of compensatory damage available in a Bivens action. See e.g., Hicks v. Ferreyra, 582 F.Supp.3d 269, 292 (D. Md. 2022), aff'd, 64 F.4th 156 (4th Cir. 2023). For this reason, and because as set forth supra, Patton has failed to state a Bivens claim, it is recommended this claim be dismissed with prejudice as amendment would be futile.
III. Conclusion
While Defendants raised other legal justifications for dismissal, because the Court finds that Patton's claims are legally unrecognized, barred by immunity or not recognized under Bivens, the Court's analysis stops there. Therefore, based on the foregoing, it is respectfully recommended that Defendants' motion to dismiss be granted and Patton's complaint be dismissed with prejudice in its entirety as amendment would be futile.
Therefore, pursuant to 28 U.S.C. § 636(b)(1)(B) and (C), Fed.R.Civ.P. 72, and the Local Rules for Magistrates, the parties have until February 24, 2025 to object to this report and recommendation. Unless otherwise ordered by the District Judge, responses to objections are due fourteen days after the service of the objections. Failure to file timely objections will waive any appellate rights. Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011).