Lovelien v. United States of America ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
RICK LOVELIEN, et al.,
Plaintiffs,
v.
UNITED STATES OF AMERICA, et al., Case No. 1:19-cv-00906 (TNM)
Defendants.
MEMORANDUM OPINION
In April 2014, Plaintiffs Rick Lovelien and Steven Stewart took part in an armed
confrontation with federal agents at the Bundy Ranch in Bunkerville, Nevada. Federal
authorities later prosecuted them, but a jury acquitted them. Lovelien and Stewart now sue for
damages against various federal officials and entities, based on conduct that took place at the
standoff and in its aftermath. Before the Court are two Motions to Dismiss, one filed by
Defendant Dan Love and the other filed by all other Defendants. For the following reasons, both
Motions to Dismiss will be granted, and the Complaint will be dismissed.
I.
State and federal officers allegedly “invaded” the Bundy Ranch in April 2014 “[u]nder
the guise of collecting grazing fees.” Compl. ¶ 21, ECF No. 1. “After hearing about and seeing
the use of excessive force and assaults on the Bundys,” Lovelien and Stewart traveled to the
Bundy Ranch to protest the officers’ actions. Id. ¶¶ 27–30. They both carried unloaded rifles
during the standoff. Id. ¶¶ 28–30. According to the Complaint, neither man harmed, assaulted,
or threatened any of the officers. Id. ¶¶ 28, 30, 32. Both men were later indicted on federal
charges based on their involvement in the standoff, but a jury ultimately acquitted them. Id. ¶¶
33–34, 82.
Lovelien and Stewart now sue the United States, the FBI, the Bureau of Land
Management (BLM), and several federal officials in their individual capacities—former
Attorneys General Jeff Sessions, Eric Holder, and Loretta Lynch; former FBI Director James
Comey; former BLM Director Neil Kornze; and Dan Love, the BLM agent in charge at the
standoff. Lovelien and Stewart also sue Comey, Kornze, and Love in their official capacities.
Under Federal Rule of Civil Procedure 25(d), the official-capacity claims against Comey,
Kornze, and Love proceed against FBI Director Christopher Wray, BLM Deputy Director
William Pendley, and BLM agent Brian Richards, respectively. See Defs.’ Mot. to Dismiss
(Defs.’ Mem.) at 1 n.1, ECF No. 10. 1 Lovelien and Stewart bring four claims against all
Defendants except the United States: (1) unconstitutional retaliation under Bivens v. Six
Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971) (Count One);
(2) unconstitutional use of force under 42 U.S.C. § 1983 (Count Two); (3) unconstitutional
retaliation under 42 U.S.C. § 1983 (Count Three); and (4) unconstitutional malicious prosecution
under 42 U.S.C. § 1983 (Count Four). See Compl. at 17–25. 2 Plaintiffs bring two claims under
the Federal Tort Claims Act (FTCA) against all Defendants (Counts Six and Seven). See id. at
27–28.
1
All page citations are to the page numbers generated by the Court’s CM/ECF system.
2
Plaintiffs originally brought Counts One through Four against all Defendants, but subsequently
withdrew these claims against the United States. Pls.’ Opp’n to Mot. to Dismiss (“Pls.’ Mem.”)
at 12, ECF No. 12. The Court will thus dismiss Counts One, Two, Three, and Four against the
United States. Count Five alleged unconstitutional deliberate indifference under 42 U.S.C.
§ 1983, but Plaintiffs have withdrawn that claim in its entirety. Id. at 24 n.4. The Court will thus
dismiss Count Five against all Defendants.
2
II.
Defendants move to dismiss under Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6). These motions are ripe for disposition.
To survive a Rule 12(b)(1) motion, a plaintiff must establish that the Court has
jurisdiction by a preponderance of the evidence. See Lujan v. Defs. of Wildlife, 504 U.S. 555,
561 (1992). When ruling on such a motion, the Court must “assume the truth of all material
factual allegations in the complaint and construe the complaint liberally, granting plaintiff the
benefit of all inferences that can be derived from the facts alleged.” Am. Nat’l Ins. Co. v. FDIC,
642 F.3d 1137, 1139 (D.C. Cir. 2011) (cleaned up). If the Court determines that it lacks
jurisdiction as to any claim, it must dismiss that claim. Fed. R. Civ. P. 12(b)(1), 12(h)(3).
To survive a Rule 12(b)(6) motion, a complaint must contain sufficient factual allegations
that, if true, “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007). Plausibility requires that a complaint raise “more than a sheer possibility
that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Pleading
facts that are “merely consistent with” a defendant’s liability “stops short of the line between
possibility and plausibility.” Twombly, 550 U.S. at 557.
The Court must “treat the complaint’s factual allegations as true and must grant the
plaintiffs the benefit of all inferences that can be derived from the facts alleged.” L. Xia v.
Tillerson, 865 F.3d 643, 649 (D.C. Cir. 2017) (cleaned up). The Court must consider only “the
facts alleged in the complaint, any documents either attached to or incorporated in the complaint
and matters of which [the court] may take judicial notice.” Hurd v. District of Columbia, 864
F.3d 671, 678 (D.C. Cir. 2017) (alteration in original; internal quotation omitted). Courts need
3
not accept the truth of legal conclusions or “[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements.” Iqbal, 556 U.S. at 678.
III.
The Court is now quite familiar with the standoff at the Bundy Ranch. This Court
recently dismissed a case raising from the same standoff against many of the same defendants
brought by the same counsel. See Bundy v. Sessions, 387 F. Supp. 3d 121 (D.D.C. 2019), appeal
docketed, No. 19-5183 (D.C. Cir. June 20, 2019). The plaintiff in that case was Ryan Bundy.
Like Lovelien and Stewart, Bundy alleged that state and federal officers “invaded” his ranch, that
he participated in the ensuing standoff while armed, and that he did not harm or threaten any of
the officers. Id. at 124. Bundy was indicted on federal charges for his involvement in the
standoff, but a district judge ultimately declared a mistrial based on prosecutorial misconduct.
Id. Bundy sued Sessions, Holder, Lynch, Comey, and Kornze under Bivens and 42 U.S.C.
§ 1983 for their alleged roles in the standoff and the ensuing prosecution. Id.Bundy’s claims failed “for many reasons.” Id. at 125. All claims based on conduct
during the standoff were time-barred, and the complaint did not plausibly allege that the federal
officials had been acting under color of state law. Id. at 125–27. Absolute immunity barred
Bundy’s prosecution-related claims against the former Attorneys General, and the complaint did
not allege that Comey or Kornze personally participated in the decision to prosecute Bundy. Id.at 127–30.
The instant case has done little to improve on Bundy. Several of Plaintiffs’ claims mirror
those made in Bundy, and Defendants make arguments for dismissal that are identical to those
this Court accepted before. See Defs.’ Mem. at 23–27; Love Mot. to Dismiss (“Love Mem.”) at
12–14, 20–25, ECF No. 17-1. As to these claims, Plaintiffs have not meaningfully distinguished
4
Bundy, nor have Plaintiffs convinced the Court that it wrongly dismissed any claims in Bundy.
See Pls.’ Opp’n to Mot. to Dismiss (“Pls.’ Mem.”) at 7–12, ECF No. 12; Pls.’ Opp’n to Love’s
Mot. to Dismiss (“Pls.’ Opp’n to Love”) at 7–9, ECF No. 18.
A.
Counts One, Two, Three, and Four assert claims for damages under Bivens and 42 U.S.C.
§ 1983. Compl. at 17–25. One difference between this case and Bundy is that Plaintiffs here sue
not only federal officials in their individual capacities, but also the FBI, the BLM, and three
official-capacity defendants—Wray, Pendley, and Richards. Defendants argue that sovereign
immunity bars Counts One through Four against this latter set of defendants. Defs.’ Mem. at 27–
28. Sovereign immunity bars suits for damages against federal agencies and officials in their
official capacity, absent a specific waiver by the Government. See Clark v. Library of Congress,
750 F.2d 89, 102–04 (D.C. Cir. 1984). Plaintiffs fail to point to any specific waiver for the
claims brought in Counts One through Four. The Court thus lacks subject matter jurisdiction
over these claims as to the two agency-defendants and the three official-capacity defendants. See
Dye v. United States, 516 F. Supp. 2d 61, 70–71 (D.D.C. 2007).
Indeed, Plaintiffs offer no response to Defendants’ discussion of sovereign immunity.
See Pls.’ Mem. at 5–24; see also id. at 12 (“Plaintiffs hereby dismiss Counts One through Five as
to Defendant United States of America only. These claims are being brought against the
individual Defendants, not the United States of America.”). The Court may therefore conclude
that Plaintiffs have conceded Defendants’ argument on this point. See Wannall v. Honeywell,
Inc., 775 F.3d 425, 428 (D.C. Cir. 2014).
5
For these reasons, the Court will dismiss Counts One, Two, Three, and Four against the
FBI, the BLM, and the three official-capacity defendants.
B.
Turning to the claims against the individual-capacity defendants, the Court begins with a
procedural issue specific to Defendant Dan Love. Love timely moved to dismiss on September
6, 2019. See 8/5/19 Minute Order. Plaintiffs’ opposition to that motion was due on or before
September 20. See LCvR 7(b). Plaintiffs filed their opposition one day late and never sought or
received an extension. The Court may therefore treat Love’s motion as conceded. See id.;
Wannall, 775 F.3d at 428. It may even be abuse of discretion for the Court not to do so. See
Smith v. District of Columbia, 430 F.3d 450, 456–57 (D.C. Cir. 2005). The Court will thus
dismiss all counts against Love. In any event, none of them states a claim for relief against
Love. See infra Sections III.C, III.D, III.F, and III.G.
C.
Defendants contend that Count Two and a portion of Count One—based on conduct
during the standoff—are untimely. Defs.’ Mem. at 23; Love Mem. at 12–13. These are claims
under Bivens and 42 U.S.C. § 1983, and since this District is the chosen forum, the Court looks
to D.C. law for the applicable statute of limitations. See Jones v. Kirchner, 835 F.3d 74, 80
(D.C. Cir. 2016). Defendants assert that a three-year limitations period applies here, and
Plaintiffs do not dispute this. Defs.’ Mem. at 23; Love Mem. at 12; Pls.’ Mem. at 9; see D.C.
Code § 12-301(8).
The standoff took place in April 2014, but Plaintiffs filed their Complaint this year, so
any claims based on conduct during the standoff fall outside the three-year limitations period.
Compl. ¶ 21. Plaintiffs urge that the relevant filing date is August 8, 2018, when they filed a
6
substantially similar action in this District. Pls.’ Opp’n to Love at 8; see Compl. at 29, Lovelien
v. United States, No. 18-cv-01869 (D.D.C. Aug. 8, 2018), ECF No. 1. Plaintiffs complain that
when the court transferred that matter to the District of Nevada, they were “forced” to dismiss
the action and to refile here on March 29, 2019. Pls.’ Mem. at 9. But even if August 8, 2018, is
the relevant date of filing, that is still more than three years after April 2014.
Plaintiffs have a second excuse. They insist that the limitations period should be tolled
because they were incarcerated from March 3, 2016, until August 22, 2017. Id. This argument
fails for the same reason it did in Bundy. See 387 F. Supp. 3d at 125. Under the relevant D.C.
statute, imprisonment tolls a limitations period only if the plaintiff’s action accrues during the
imprisonment. See D.C. Code § 12-302(a)(3). The claims that are based on conduct during the
standoff accrued at the time of the standoff, when Plaintiffs were not imprisoned, so § 12-
302(a)(3) does not save these claims. Unlike in Bundy, Plaintiffs here do not argue for equitable
tolling, so the Court need not consider whether that doctrine applies. See Pls.’ Mem. at 9; Pls.’
Opp’n to Love at 8.
The Court will therefore dismiss as untimely Count Two and any portion of Count One
that is based on conduct during the standoff. 3
3
The only counts that Defendants characterize as based on conduct during the standoff are
Count Two, a portion of Count One, and Count Five (which Plaintiffs have withdrawn in its
entirety). See Defs.’ Mem. at 23; Love Mem. at 12–13. Plaintiffs do not dispute or otherwise
respond to that characterization. See Pls.’ Mem. at 9; Pls.’ Opp’n to Love at 8. The Court
observes, however, that the only discernible difference between Counts One and Three, as
pleaded, is that the former is a claim under Bivens and the latter is a claim under 42 U.S.C.
§ 1983. See Compl. ¶¶ 83–91, 110–21. If a portion of Count Three is based on conduct during
the standoff, the Court would also dismiss that portion of Count Three as untimely.
7
D.
Defendants next maintain that Counts Two, Three, and Four—all claims under 42 U.S.C.
§ 1983—must be dismissed against the individual-capacity Defendants because none of these
federal officials was acting under color of state law. Defs.’ Mem. at 23–24; Love Mem. at 13–
14. To state a claim under § 1983, Plaintiffs “must show that the alleged deprivation was
committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).
“The traditional definition of acting under color of state law requires that the defendant in a
§ 1983 action have exercised power possessed by virtue of state law and made possible only
because the wrongdoer is clothed with the authority of state law.” Id. at 49 (cleaned up).
The Complaint does not plausibly allege that any of the federal officials were “clothed
with the authority of state law.” As in Bundy, the contention here is that the federal officials
conspired with and directed state officials to violate Plaintiffs’ constitutional rights. Pls.’ Mem.
at 7–8; Pls.’ Opp’n to Love at 8–9; see Compl. ¶¶ 18, 55, 72, 95, 115, 117, 125–26, 129. At
most, this means that the state officials may have been acting under color of federal law. See
Bundy, 387 F. Supp. 3d at 127. But not the reverse. Plaintiffs do not allege that the federal
officials had or used any authority granted by Nevada law, nor would it be plausible to so allege
here. Id. The Court will therefore dismiss Counts Three and Four against the individual-
capacity defendants—Sessions, Holder, Lynch, Comey, Kornze, and Love. This reasoning is an
alternative ground for dismissing Count Two against these defendants.
E.
Defendants urge that Count Four—which alleges malicious prosecution under the Fourth
Amendment—and the portions of Counts One and Three that allege retaliatory prosecution under
the First Amendment should be dismissed against the former Attorneys General based on
8
absolute prosecutorial immunity. Defs.’ Mem. at 24. This immunity shields prosecutors from
liability under both 42 U.S.C. § 1983 and Bivens for “initiating a prosecution.” Imbler v.
Pachtman, 424 U.S. 409, 431 (1976); see Moore v. Valder, 65 F.3d 189, 192–93 (D.C. Cir.
1995). The conduct that Count Four challenges—and the conduct that the prosecution-related
portions of Counts One and Three challenge—is Defendants’ decision to prosecute Plaintiffs.
See Compl. ¶¶ 87, 90, 114, 117, 125. The challenged conduct thus falls within the scope of
absolute immunity. See Moore, 65 F.3d at 194.
Plaintiffs counter that absolute immunity is inapplicable here because the former
Attorneys General prosecuted them “without probable cause, and based on allegations that they
knew to be false.” Pls.’ Mem. at 10. Specifically, Plaintiffs point to an allegation in the
Complaint that they “were incarcerated for over one year and a half, despite the fact
that . . . Defendants . . . not only had no evidence of wrongdoing, but also actively destroyed, hid,
and buried evidence that would serve to exculpate Plaintiffs.” Id.; see Compl. ¶ 41. This vague
assertion is unclear about whether Defendants “destroyed, hid, and buried” exculpatory evidence
during a preliminary investigation, or whether Defendants withheld exculpatory evidence from
the grand jury or at trial. This distinction matters. Absolute immunity may not protect the
former set of actions. Cf. Buckley v. Fitzsimmons, 509 U.S. 259, 274–76 (1993) (holding that
absolute immunity does not protect a prosecutor’s fabrication of evidence during the preliminary
investigation of an unsolved crime). But absolute immunity does protect a prosecutor who
withholds exculpatory evidence at trial or before a grand jury. See Imbler, 424 U.S. at 413, 430–
31; Moore, 65 F.3d at 194. In any event, even with the benefit of the doubt, there are two
reasons why Plaintiffs’ assertion fails to salvage any of their claims.
9
First, Plaintiffs have not brought a cause of action based on Defendants’ alleged
destruction of exculpatory evidence that is separate from their causes of action for malicious
prosecution and retaliatory prosecution. Defendants characterize Count Four as asserting a cause
of action for malicious prosecution and the relevant portions of Counts One and Three as
asserting causes of action for retaliatory prosecution. See Defs.’ Mem. at 45–46. Plaintiffs do
not dispute this characterization. See Pls.’ Mem. at 21–23. Both types of claims “rely on the
decision to prosecute.” See Moore v. United States, 213 F.3d 705, 709–10 (D.C. Cir. 2000);
Dellums v. Powell, 660 F.2d 802, 805–07 (D.C. Cir. 1981). And “instituting a criminal action is
precisely the sort of activity that falls within the scope of absolute immunity granted to a
prosecuting official such as the Attorney General.” Dellums, 660 F.2d at 806. In other words,
these counts challenge the decision to prosecute, which falls within the scope of absolute
immunity. See Moore, 213 F.3d at 709–10.
Second, the Complaint does not sufficiently allege that Sessions, Holder, or Lynch
personally participated in any concealment of evidence during a preliminary investigation.
Under Iqbal, a plaintiff bringing a claim under 42 U.S.C. § 1983 or Bivens must plausibly allege
“that each Government-official defendant, through the official’s own individual actions, has
violated the Constitution.” 556 U.S. at 676. Conclusory allegations devoid of factual context
cannot state a claim. See id. at 686. The bald assertion in the Complaint that Defendants
covered up exculpatory evidence is just such an allegation. The same is true of other vague
allegations that Defendants hid—or ordered others to hide—exculpatory evidence. See Compl.
¶¶ 36, 39.
The only example of exculpatory evidence that Plaintiffs cite is a live video feed of the
standoff that apparently came to light during the separate trial of Cliven Bundy. See id. ¶¶ 37–
10
38. But the Complaint contains no allegation that Sessions, Holder, or Lynch were personally
involved in hiding this evidence, let alone any factual content that would support such an
allegation. See id. Thus, even if absolute prosecutorial immunity does not cover hiding
exculpatory evidence during a preliminary investigation, the Complaint fails to allege that any of
the former Attorneys General personally participated in this conduct. Nor is this surprising.
Cabinet-level officers are unlikely to be participants in the minutiae of a case like this.
For these reasons, the Court will dismiss the prosecution-related portion of Count One
against Sessions, Holder, and Lynch. This reasoning serves as an alternative basis for dismissing
Count Four and the prosecution-related portion of Count Three against the former Attorneys
General.
F.
The individual-capacity Defendants next argue that the Complaint does not sufficiently
allege their personal participation in the conduct covered by Count Two and portions of Counts
One, Three, and Four. Defs.’ Mem. at 25–27; Love Mem. at 20–25. The Court agrees.
Count Two and a portion of Count One encompass Defendants’ alleged conduct during
the standoff. A portion of Count Three also might encompass conduct during the standoff. See
supra note 3. Plaintiffs point to allegations that the actions at the standoff took place “upon
orders from Defendants Sessions, Lynch, Holder, Comey, and Kornze;” that Comey and Kornze
“directly” and “personally” used their agencies to violate Plaintiffs’ rights; and that Sessions,
Lynch, and Holder “ordered, commanded, and directed, and/or ratified the assault on the Bundy
Ranch.” Pls.’ Mem. at 11–12; see Compl. ¶¶ 21, 23, 25–26. But no factual assertions support
these conclusory allegations. See Compl. ¶¶ 48–55. Such “naked assertions devoid of further
factual enhancement” are insufficient to state a claim. Iqbal, 556 U.S. at 678 (cleaned up).
11
In any event, Sessions and Lynch were not even in office at the time of the standoff, see
Compl. ¶ 68, and it is implausible that Holder, Comey, and Kornze—all high-ranking officials
working in Washington, D.C., at the time, see id. ¶¶ 23, 25–26—were involved in the minute-by-
minute decisions made by agents on the ground at the Bundy Ranch. Accord Argueta v. ICE,
643 F.3d 60, 75–77 (3d Cir. 2011) (rejecting a claim that high-ranking officials directly
participated in allegedly unlawful raids). Since the Court has already concluded that any claims
based on conduct during the standoff are time-barred, this reasoning serves as an alternative
ground for dismissing Count Two and any standoff-related portions of Counts One and Three
against Sessions, Holder, Lynch, Comey, and Kornze.
Count Four and portions of Counts One and Three encompass Defendants’ alleged
prosecution-related conduct. The Complaint nowhere alleges that Love—the BLM agent in
charge at the standoff—had anything to do with the decision to prosecute Plaintiffs. See Compl.
¶¶ 61–82. The Complaint does allege that the U.S. Attorney for the District of Nevada
prosecuted Plaintiffs “at the direction of Defendants Sessions, Comey, Lynch, Kornze, and
Holder.” Pls.’ Mem. at 12; see Compl. ¶ 33. But the U.S. Attorney is not a defendant here. And
no factual assertions support the allegation that Comey and Kornze were personally involved in
the prosecution. See Compl. ¶¶ 67–82. The Court will thus dismiss the prosecution-related
portion of Count One against Comey, Kornze, and Love. This reasoning serves as an alternative
ground for dismissing Count Four and the prosecution-related portion of Count Three against
these three Defendants. 4
4
Counts One and Three also appear to allege that Defendants unlawfully retaliated against
Plaintiffs by arresting and incarcerating them. See Compl. ¶¶ 86–87, 113, 115. Plaintiffs do not
try to separate these episodes from the decision to prosecute them. See Pls.’ Mem. at 6
(“Defendants, in retaliation for Plaintiffs’ exercise of their First Amendment right to protest
peacefully, unjustly and without probable cause sent their case before a grand jury, which
12
G.
Finally, Defendants maintain that Counts Six and Seven—which assert claims under the
FTCA—must be dismissed in their entirety. They first urge dismissal against all Defendants
except the United States because the United States is the only proper party-defendant for these
claims. Defs.’ Mem. at 28–29. Judges of this District have consistently adopted that view,
which aligns with the plain language of the FTCA and authority from other circuits. 28 U.S.C.
§§ 1346(b)(1), 2679(a), (d)(1); see, e.g., Hall v. Admin. Office of U.S. Courts, 496 F. Supp. 2d
203, 206 (D.D.C. 2007); Galvin v. OSHA, 860 F.2d 181, 183 (5th Cir. 1988).
Plaintiffs appear to construe one provision of the FTCA, 28 U.S.C. § 2680(h), to permit
suit against “investigative or law enforcement officers of the United States Government.” See
Pls.’ Mem. at 13. Not so. Section 2680(h) permits suit under the FTCA based on certain
intentional torts committed by “investigative or law enforcement officers of the United States
Government.” But these suits must still proceed against the United States, not the officers or
their agencies. See 28 U.S.C. §§ 1346(b)(1), 2679(a), (d)(1). On this basis, the Court will
dismiss Counts Six and Seven against all Defendants except the United States.
The claims against the United States fail for a different reason. Plaintiffs have narrowed
Counts Six and Seven to a single FTCA claim based on the tort of malicious prosecution, citing
paragraph 147 of the Complaint. See Pls.’ Mem. at 12–13. The cited paragraph, however,
ultimately led to their indictment and incarceration for nearly a year and a half before they were
acquitted of all charges.”). The former Attorneys General were therefore personally involved in
Plaintiffs’ arrest and incarceration only if they ordered their prosecution; but they have absolute
immunity for any order to prosecute. And just as the Complaint fails to make a plausible
allegation that Comey, Kornze, and Love were personally involved in the prosecution, so too
does it fail to make a plausible allegation that these officials were personally involved in
Plaintiffs’ arrest and incarceration. See Compl. ¶¶ 67–82. The Court will therefore dismiss any
arrest- or incarceration-related claims in Counts One and Three against Sessions, Holder, Lynch,
Comey, Kornze, and Love.
13
alleges that Defendants’ actions constitute, “inter alia . . . malicious prosecution in violation of
the Fourth Amendment . . . under circumstances where the United States, if a private person,
would be liable to Plaintiffs in accordance with the laws of the District of Columbia and the fifty
states of the United States.” Compl. ¶ 147 (emphasis added). To be cognizable under the FTCA,
a claim must allege a tort under “the law of the place where the act or omission occurred,” i.e.,
local law; a claim that alleges a constitutional tort is not cognizable under the FTCA. See 28
U.S.C. § 1346(b)(1); FDIC v. Meyer, 510 U.S. 471, 477–78 (1994).
Even if the Court construes paragraph 147 to allege a non-constitutional tort of malicious
prosecution, the paragraph suffers from another problem. It does not allege a tort of malicious
prosecution under “the law of the place where the act or omission occurred,” but rather broadly
alleges a tort of malicious prosecution under the laws of 51 jurisdictions. Arguably, then,
Plaintiffs do not plead the elements of an FTCA claim correctly.
In any event, the Complaint fails to allege a plausible claim of malicious prosecution
under Nevada law. 5 One element of this tort is lack of probable cause. See Jordan v. State ex
rel. Dep’t of Motor Vehicles & Pub. Safety, 110 P.3d 30, 48 (Nev. 2005), abrogated on other
grounds by Buzz Stew LLC v. City of N. Las Vegas, 181 P.3d 670, 672 n.6 (Nev. 2008). “[I]n a
malicious prosecution case, the commitment and indictment of a defendant constitutes prima
facie evidence that probable cause for criminal prosecution existed,” but a plaintiff can rebut this
prima facie evidence “with a relevant showing of false testimony or suppressed facts.” Id. at 49
5
Defendants assert that Nevada is “the place where the act or omission occurred.” Defs.’ Reply
at 10, ECF No. 16. Plaintiffs fail to specify what they think the relevant “place” is. See Pls.’
Mem. at 12–13. The Court observes that the individual Defendants were all allegedly acting “in
and from” the District of Columbia. Compl. at 2–3. But Plaintiffs were prosecuted in the
District of Nevada. Id. ¶¶ 33, 35. The Court will thus apply Nevada law, particularly given
Plaintiffs’ failure to specify what law the Court should apply.
14
n.65 (citing Ricord v. Cent. Pac. R.R. Co., 15 Nev. 167, 180 (1880)). Here, there is prima facie
evidence of probable cause, as a grand jury indicted Plaintiffs, and judges ordered both Plaintiffs
detained after their arrest. See Defs.’ Mem. Ex. 1 at 8 (Superseding Indictment); id. Ex. 3 at 2–3
(Stewart Detention Order); id. Ex. 4 at 2 (Lovelien Detention Hr’g Minute Sheet). 6
Plaintiffs contend that they have alleged enough wrongful conduct to overcome the prima
facie evidence of probable cause. Pls.’ Mem. at 23. They point to a paragraph in the Complaint
baldly alleging that “[e]ach Defendant, working jointly and in concert, engaged in the
obstruction of justice by destroying and spoiling evidence and hiding exculpatory evidence to try
to obtain wrongful convictions against Lovelien and Stewart.” Compl. ¶ 36; see Pls.’ Mem. at
23. But this sort of conclusory allegation cannot permit a reasonable inference of misconduct.
See Iqbal, 556 U.S. at 679 (“[W]here the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—
‘that the pleader is entitled to relief.’” (second alteration in original) (quoting Fed. R. Civ. P.
8(a)(2))).
The Complaint does contain some references to the prosecutorial misconduct that
resulted in dismissal of charges against Cliven and Ryan Bundy. See Compl. ¶¶ 37, 75–81. But
prosecutors tried Plaintiffs separately from the Bundys, and their trial proceeded to verdict. See
id. ¶¶ 37, 75, 82. Plaintiffs have failed to plead facts supporting an inference that misconduct
tainted their prosecution. 7
6
These exhibits are all public court records. The Superseding Indictment was unsealed in 2016.
See Defs.’ Mem. Ex. 2 at 10. The Court takes judicial notice of these records, which it may do at
this stage of proceedings. See Hurd, 864 F.3d at 678, 686. Plaintiffs do not dispute the accuracy
of these records or otherwise comment on Defendants’ inclusion of them as exhibits in its
Motion to Dismiss. See Pls.’ Mem. at 5–24.
7
Plaintiffs opine that “probable cause is even more lacking than with the Bundys, as Plaintiffs
Stewart and Lovelien were acquitted of charges, whereas charges against the Bundys were
15
Plaintiffs appear to blame the secrecy of grand jury proceedings for their inability to
plead more specific facts. See Pls.’ Mem. at 23. This argument is a red herring. The indictment,
which describes the case against Plaintiffs, has been unsealed for more than three years. See
Defs.’ Mem. Ex. 1; id. Ex. 2 at 10. Plaintiffs have been to trial, where, they allege, the
prosecutors presented evidence that was “non-existent and so much in favor of Plaintiff[s].”
Compl. ¶ 44. It defies “judicial experience and common sense” to believe that Plaintiffs cannot
make more specific allegations at this stage about what evidence was false, fabricated, or
wrongfully withheld as part of their prosecution. Iqbal, 556 U.S. at 679; see Lewis v. City of
New York, 591 F. App’x 21, 22 (2d Cir. 2015) (“[W]e find it difficult to believe that Lewis was
unable to make more specific allegations regarding any fabrication in the State’s evidence in the
criminal proceeding, where he was present throughout the subsequent trial on the indictment.”).
For these reasons, Plaintiffs have failed to plead a plausible claim of malicious
prosecution under Nevada law. Since malicious prosecution is Plaintiffs’ only professed basis
for their FTCA claims, see Pls.’ Mem. at 13, they have failed to plead a plausible FTCA claim
against the United States. The Court will thus dismiss Counts Six and Seven against the United
States.
dismissed due to gross prosecutorial misconduct.” Pls.’ Mem. at 21; Pls.’ Opp’n to Love at 17.
But of course, proof beyond a reasonable doubt is a more demanding standard than probable
cause, see Sheriff, Clark Cty. v. Burcham, 198 P.3d 326, 332–33 (Nev. 2008), so acquittal does
not vitiate probable cause.
16
IV.
For all these reasons, both Motions to Dismiss will be granted, and Plaintiffs’ Complaint
will be dismissed. 8 A separate Order will issue.
2019.11.18
14:30:10
-05'00'
Dated: November 18, 2019 TREVOR N. McFADDEN, U.S.D.J.
8
Plaintiffs list “Does 1-100, inclusive” as Defendants, noting that these are “other BLM and FBI
agents to be named later,” after discovery. Compl. at 2–3. But Plaintiffs bring each cause of
action against “All Named Defendants.” Id. at 17, 19, 22–23, 25, 27–28. Plaintiffs fail to make
any argument for why this action should proceed against the unnamed Does if no claims against
the named defendants survive. See Pls.’ Mem. at 5–24. The Court will thus dismiss the
Complaint in its entirety.
17