Opinion
3:23-cv-01619-G (BT)
12-03-2024
ALONZO RICHARD, Plaintiff, v. PAUL D. MACALUSO, Defendant.
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
REBECCA RUTHERFORD UNITED STATES MAGISTRATE JUDGE
Pro se plaintiff Alonzo Richard filed this suit against now-deceased former federal prosecutor Paul D. Macaluso, claiming that Macaluso abused legal process in 1993 by prosecuting Richard for a crime over which the federal court lacked jurisdiction. ECF No. 3. For the reasons below, the Court should deny Richard's motion to proceed in forma pauperis (ECF No. 4) as moot, deny his motions to substitute another defendant for Macaluso under Federal Rule of Civil Procedure 25(a) (ECF Nos. 12, 13), dismiss his claim against Macaluso in his official capacity for lack of subject matter jurisdiction, and dismiss his claim against Macaluso in his individual capacity for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).
Background
In 1993, in this district and division, Richard was convicted of robbery, using and carrying a firearm during a crime of violence, and possession of a firearm by a convicted felon, and was sentenced to 300 months' imprisonment. United States v. Richard, No. 3:92-CR-254-H (N.D. Tex. Dallas Div.), aff'd, No. 93-3126 (5th Cir. 1993) (unpublished).
In July 2023, Richard filed this federal civil rights action against Macaluso, the Assistant United States Attorney who prosecuted him 30 years ago in the Northern District of Texas, and who, according to Richard, died in 2021. ECF No. 3 at 4, 9. Richard claims that, in April 2023, he read a 1994 memorandum opinion and order from United States District Judge Terry R. Means in an unrelated case showing that the federal court lacked jurisdiction over his 1993 Hobbs Act charges because the indictments failed to “allege the requisite effect on interstate commerce.” Id. at 5. He claims that it was an “abuse of process” in violation of the Due Process Clause of the Fifth Amendment for Macaluso to “process[], try[], and sentence[]” him on the indictments. Id. at 6. He sues Macaluso in his individual and official capacities, seeking nominal damages, punitive damages, and a declaration that Macaluso violated his constitutional rights. Id. at 4, 6-7.
Pending motions
Before addressing the merits of Richard's complaint, the Court addresses his pending motions to proceed in forma pauperis (IFP) and to substitute another defendant for Macaluso under Federal Rule of Civil Procedure 25(a).
Richard initially sought leave to proceed IFP. ECF No. 4. The undersigned recommended that the IFP motion be denied, but Richard objected to that recommendation, and the Court re-referred the motion to the undersigned for additional findings and a recommendation in light of the Richard's objections. ECF Nos. 6, 7, 8. However, Richard later paid the full $405.00 filing fee; thus, his motion for leave to proceed IFP (ECF No. 4) should be denied as moot.
As to the motions to substitute, Federal Rule of Civil Procedure 25 provides in pertinent part:
(a) Death.
(1) Substitution if the Claim is not Extinguished. If a party dies and the claim is not extinguished, the court may order substitution of the proper party. A motion for substitution may be made by any party or by the decedent's successor or representative. If the motion is not made within 90 days after service of a statement noting the death, the action by or against the decedent must be dismissed.
(d) Public Officers; Death or Separation from Office. An action does not abate when a public officer who is a party in an official capacity dies, resigns, or otherwise ceases to hold office while the action is pending. The officer's successor is automatically substituted as a party. Later proceedings should be in the substituted party's name, but any misnomer not affecting the parties' substantial rights must be disregarded. The court may order substitution at any time, but the absence of such an order does not affect the substitution.Fed. R. Civ. P. 25. The Fifth Circuit has held that substitution under Rule 25(a)(1) is available only if the party dies after suit is filed. See Mizukami v. Buras, 419 F.2d 1319, 1320 (5th Cir. 1969); see also History and Application of Rule, 7C Fed. Prac. & Proc. Civ. & 1951 (3d ed.) (“The rule presupposes that substitution is for someone who was a party to a pending action.[] Substitution is not possible if one who was named as a party in fact died before the commencement of the action.[]” (footnotes omitted)); see also Porter v. Times Grp., 2016 WL 8257692, at *3 (M.D. La. Nov. 4, 2016), rec. accepted 2017 WL 628296 (M.D. La. Feb. 15, 2017) (“Rule 25(a) is inapplicable because Ms. Lang predeceased the initiation of this action, and the suit against her was a nullity ab initio.”).
Richard's motions to substitute should be denied. To the extent that Richard sues Macaluso in his official capacity, a motion to substitute is unnecessary because the action is, in effect, against the United States, and substitution of the officer's successor takes place as a matter of course. See, e.g., Jermosen v. Coughlin, 2002 WL 31505634, at *1 (N.D.N.Y. Nov. 4, 2002) (finding that the service of a suggestion of death and the “making of a motion to substitute” was unnecessary because the state public officer sued in his official capacity was automatically succeeded by his successor upon his retirement); Chapman v. Frank, 2008 WL 2338353, at *1 (E.D. Wisc. June 6, 2008) (“Plaintiff first asks to substitute Rick Raemisch for defendant Matthew J. Frank. Fed.R.Civ.P. 25(d) provides that when an official sued in his official capacity (such as defendant Frank) separates from office, his successor is automatically substituted as a party. Thus, it is unnecessary to amend the complaint to implement this proposed change.”).
And to the extent that Richard seeks to substitute another defendant for Macaluso with respect to the individual capacity claim, because Macaluso died before Richard filed this lawsuit, there can be no substitution under Rule 25. See Mizukami, 419 F.2d at 1320.
Legal Standards
A district court may dismiss a complaint on its own motion under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted. See Carroll v. Fort James Corp., 470 F.3d 1171, 1177 (5th Cir. 2006) (citing Shawnee Int'l., N.V. v. Hondo Drilling Co., 742 F.2d 234, 236 (5th Cir. 1984)). The procedure for dismissing a complaint sua sponte must be fair. Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998) (quoting 5A Wright & Miller, FED. PRACTICE AND PROCEDURE § 1357, at 301 (2d ed. 1990)). This requires the court to give the plaintiff notice of its intent to dismiss the case and an opportunity to respond. Id. at n.5. “The fourteen-day time frame for filing objections to a recommended dismissal provides Plaintiff with notice and an opportunity to respond.” Fantroy v. First. Fin. Bank, N.A., 2012 WL 6764551, at *7 (N.D. Tex. Dec. 10, 2012) (citing Ratliff v. Coker, 2008 WL 4500321, at *3 n.1 (E.D. Tex. Sept. 26, 2008)).
Because Richard paid the filing fee, the screening provision in 28 U.S.C. § 1915(e)(2) is inapplicable.
To state a claim upon which relief may be granted under Rule 12(b)(6), a plaintiff must “plead enough facts to state a claim to relief that is plausible on its face[,]” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), and must plead those facts with enough specificity “to raise a right to relief above the speculative level[.]” Id. at 555. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
When analyzing a complaint under Rule 12(b)(6), the Court may consider the complaint, its proper attachments, “documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008) (citations and internal quotation marks omitted).
Analysis
1. The Court lacks subject matter jurisdiction over Richard's official-capacity claim because it is barred by sovereign immunity.
“A federal court has no subject-matter jurisdiction over claims against the United States unless the government waives its sovereign immunity and consents to suit.” Danos v. Jones, 652 F.3d 577, 581 (5th Cir. 2011). “Claims against officers of the United States in their official capacities are actually claims against the sovereign.” Id.; see also Rowland v. Southwestern Corr., LLC, 2021 WL 7184981, at *4 (E.D. Tex. Aug. 27, 2021), rec. accepted 2022 WL 135801 (E.D. Tex. Jan. 13, 2022) (“Further, a suit against a federal officer in his or her official capacity . . . is really a suit against the United States.”) (citation omitted). “Where applicable, therefore, sovereign immunity precludes claims against the officers as well.” Danos, 652 F.3d at 581 (citation omitted).
Richard sues Macaluso in his official capacity. As explained, such a suit is, in effect, against the United States. But Richard has identified no waiver of sovereign immunity, and so the Court lacks jurisdiction over his official-capacity claim against Macaluso, and it should be dismissed without prejudice. See, e.g., Gibson v. Fed. Bureau of Prisons, 121 Fed.Appx. 549, 551 (5th Cir. 2004) (“Gibson may bring a Bivens action against individual officers for a[n] alleged constitutional violation, but he may not bring an action against the United States, the BOP, or BOP officers in their official capacities as such claims are barred by the doctrine of sovereign immunity.”) (citing Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 71-72 (2001); Hafer v. Melo, 502 U.S. 21, 25 (1991)) (claims against employees in official capacities are considered a suit against the government entity); Laster v. Boyle, 2022 WL 4086782, at *4 (N.D. Tex. Aug. 4, 2022) (Rutherford, J.), rec. adopted, 2022 WL 4084429 (N.D. Tex. Sept. 6, 2022) (Fitzwater, J.) (sovereign immunity bars plaintiff's claims against AUSA in her official capacity).
2. Richard fails to state a claim against Macaluso in his individual capacity because Macaluso is deceased and lacks the capacity to sued, and, even if Richard could name a proper defendant, his allegations are not cognizable under Bivens and are Heck-barred.
As for the individual-capacity claim, Richard admits that Macaluso passed away over a year before he filed this suit, and, as explained, he cannot use Rule 25(a) to substitute another defendant. Thus, an initial issue is whether Macaluso, now deceased, has the capacity to be sued.
Rule 17(b)(1) of the Federal Rules of Civil Procedure provides that the capacity to be sue or be sued is determined “by the law of the individual's domicile.” FED. R. CIV. P. 17(b)(1). Macaluso, a former Assistant United States Attorney in the Northern District of Texas, was domiciled in Texas. In Texas, “a judgment against a party who died before service of process and whose estate has not been made a proper party is void.” Ins. of N. Am. v. Dealy, 911 F.2d 1096, 1099 (5th Cir. 1990) (citing Edens v. Grogan Cochran Lumber Co., 172 S.W.2d 730 (Tex. Civ. App. 1943)). As a deceased individual, Macaluso also lacks the capacity to be sued under Texas law. See Dave v. Laird, 2022 WL 3905235, at *2 (S.D. Tex. July 28, 2022), rec. accepted 2022 WL 3927845 (S.D. Tex. Apr. 18, 2023), aff'd, 2023 WL 2983567 (5th Cir. Apr. 18, 2023) (citing Dealy, 911 F.2d at 1099 and collecting other cases).
Because Macaluso cannot be sued, the Court should dismiss Richard's claim against him under Rule 12(b)(6). See id. at *3 (citing Stanford v. Liberty Mut. Grp. Inc., 2018 WL 5259474, at *3 (N.D. Miss. Oct. 22, 2018) (noting that claims against a defendant who lacks the “procedural capacity to be sued” may be dismissed under Rule 12(b)(6)); Steele v. Police Dep't of Oakdale, 2010 WL 816177, at *2 (W.D. La. Mar. 9, 2010) (same) (citing Indest v. Freeman Decorating, Inc., 164 F.3d 258, 262 (5th Cir. 1999)) (further citations omitted).
But even if Macaluso could name a defendant with the capacity to be sued, his allegations fail to state a claim. Because Macaluso was a federal prosecutor, Richard's constitutional claim against him is pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 397 (1971). See Evans v. Ball, 168 F.3d 856, 863 n.10 (5th Cir. 1999) (“A Bivens action is analogous to an action under § 1983-the only difference being that § 1983 applies to constitutional violations by state, rather than federal officials”), overruled on other grounds, Castellano v. Fragozo, 352 F.3d 939, 948-49 & n.36 (5th Cir. 2003)).
In Bivens, the Supreme Court created a cause of action under the Fourth Amendment where federal agents allegedly “manacled” the plaintiff “in front of his wife and children and threatened to arrest the entire family”; “searched the apartment from stem to stem”; and took him to a federal courthouse where he was “interrogated, booked, and subjected to a visual strip search.” Bivens, 403 U.S. at 389.
“Over the next decade, the Supreme Court recognized two other causes of action against federal officers: (1) for gender discrimination against a former congressional staffer in violation of the Fifth Amendment, see Davis v. Passman, 442 U.S. 228 (1979); and (2) for a failure to provide an asthmatic prisoner with adequate medical care in violation of the Eighth Amendment, see Carlson v. Green, 446 U.S. 14 (1980).” Bolden v. FBOP, 2024 WL 4182123, at *1 (W.D. La. Aug. 13, 2024), rec. accepted 2024 WL 4181793 (W.D. La. Sept. 12, 2024). “Since then, the Supreme Court has not once extended the Bivens remedy, and it has declined to do so at least a dozen times.” See Looper v. Jones, 2023 WL 5814910, at *1 (5th Cir. Sept. 8, 2023) (per curiam) (citing Egbert v. Boule, 596 U.S. 482 (2022)). The Supreme Court has emphasized that recognizing a cause of action under Bivens is a “disfavored' judicial activity,” Ziglar v. Abassi, 582 U.S. 120, 135 (2017) (quoting Ashcroft, 556 U.S. at 675), because “creating a cause of action is a legislative endeavor,” Egbert, 596 U.S. at 491. “So today, ‘Bivens claims generally are limited to the circumstances' of Bivens, Davis, and Carlson.” Looper, 2023 WL 5814910, at *1.
When analyzing a proposed Bivens claim, a court must consider: (1) whether the case presents a new context; and (2) if so, whether there are any alternative remedies or special factors indicating that judges are “at least arguably less equipped than Congress” to create a damages remedy. Egbert, 596 U.S. at 492; see also Bolden, 2024 WL 4182123, at *2. A proposed Bivens claim is “new” if the case is different in any meaningful way from Bivens, Davis, or Carlson. See Abbasi, 582 U.S. at 139. “Virtually everything else is a ‘new context'” and the “understanding of a ‘new context' is broad” . . . because ‘even a modest extension of the Bivens trilogy ‘is still an extension.'” Oliva, 973 F.3d at 442 (citations omitted). The Supreme Court has created a non-exhaustive list of differences meaningful enough to make a context a new one, including:
The rank of the officers involved; the constitutional right at issue; the generality or specificity of the official action; the extent of judicial guidance as to how an officer should respond to the problem or emergency to be confronted; the statutory or other legal mandate under which the officer was operating; the risk of disruptive intrusion by the Judiciary into the functioning of other branches; or the presence of potential special factors that previous Bivens cases did not consider.Abbasi, 582 U.S. at 139-40.
Here, there are meaningful differences between Richard's case and the Bivens trilogy. None of the Bivens trilogy involved an abuse of process or malicious prosecution-type action against a federal prosecutor for alleged deficiencies in a federal indictment. The type of defendant involved, as well as the alleged constitutional right at issue, meaningfully differentiate Richard's case from those in which the Supreme Court has recognized a Bivens claim. See, e.g., Gross v. Cox, 2024 WL 3249331, at *3 (E.D. Tex. June 7, 2024), rec. accepted 2024 WL 3241306 (E.D. Tex. June 27, 2024) (noting that the Fifth Circuit has refused to extend Bivens to malicious prosecution claims) (citing Cantu, 933 F.3d at 421); Nyanteng v. Thompson, 2022 WL 2763552, at *5-6 (D.N.J. July 15, 2022) (finding that malicious prosecution and abuse of process claims presented new Bivens context).
And there are factors counseling against judicially extending Bivens to Richard's abuse of process claim. The legislative branch has long been on notice that the Supreme Court is disinclined to extend Bivens to new contexts. Yet it has not passed legislation that would extend a Bivens remedy to Richard's allegations, which counsels against the Court doing so. Goodloe v. United States, 2023 WL 4712204 (N.D. Tex. June 21, 2023), rec. accepted 2023 WL 4707997 (N.D. Tex. July 24, 2023) (citation omitted). Therefore, Richard's abuse of process claim is not cognizable under Bivens.
Finally, the Court also notes that success on Richard's claim that Macaluso illegally prosecuted him on an indictment over which the federal court lacked jurisdiction would necessarily imply the invalidity of Richard's 1993 conviction, and he has not alleged that conviction has been overturned, expunged, declared invalid, or otherwise called into question. As a result, the claim is barred by Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). id. at 486-87; see also Garig v. Travis, 2021 WL 2708910, at *24 (M.D. La. June 30, 2021) (“Likewise, Plaintiff's malicious prosecution, abuse of process, false arrest, and false imprisonment claims are barred by Heck.”).
In sum, Richard fails to state an individual-capacity claim against Macaluso because Macaluso lacks the capacity to be sued and Richard's claim is not cognizable under Bivens and is Heck-barred.
Leave to Amend
Ordinarily, a Pro se plaintiff should be granted the opportunity to amend his complaint before dismissal, but leave to amend is not automatic and may be refused where it would be futile. See Morgan v. Chapman, 969 F.3d 238, 248 (5th Cir. 2020) (citing Smith v. EMC Corp., 393 F.3d 590, 595 (5th Cir. 2004)). Here, as explained above, Richard's claim is fatally infirm and granting leave to amend would be futile and cause needless delay, so he should not be given an opportunity to amend his complaint before dismissal. See Ransom v. Nat'l City Mortg. Co., 2014 WL 717198, at *6 (N.D. Tex. Feb. 25, 2014).
Recommendation
The Court should deny plaintiff Alonzo Richard's pending motion to proceed in forma pauperis (ECF No. 4) as moot, deny his motions to substitute under Federal Rule of Civil Procedure 25 (ECF Nos. 12, 13), dismiss his claim against Macaluso in his official capacity without prejudice for lack of subject matter jurisdiction, and dismiss his claim against Macaluso in his individual capacity with prejudice for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).
SO RECOMMENDED.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO OBJECT
A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party who objects to any part of this report and recommendation must file specific written objections within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the magistrate judge's report and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the magistrate judge is not specific. Failure to file specific written objections will bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).