United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
MATTER is before the Court sua sponte under
§ 1915(e)(2)(B) on the Civil Rights Complaint Pursuant
to 42 U.S.C. § 1983 (“Complaint”) filed by
Plaintiff Rayvell Vann on October 31, 2016. (Doc. 1). The
Court will dismiss the Complaint for failure to state a claim
on which relief can be granted.
Vann is proceeding pro se and in forma pauperis.
(Doc. 4). The Court has the discretion to dismiss an in
forma pauperis complaint for failure to state a claim
upon which relief may be granted under either Fed.R.Civ.P.
12(b)(6) or 28 U.S.C. § 1915(e)(2)(B). Under
Fed.R.Civ.P. 12(b)(6) the Court must accept all well-pled
factual allegations, but not conclusory, unsupported
allegations, and may not consider matters outside the
pleading. Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007); Dunn v. White, 880 F.2d 1188, 1190
(10th Cir. 1989). The court may dismiss a
complaint under rule 12(b)(6) for failure to state a claim if
“it is ‘patently obvious' that the plaintiff
could not prevail on the facts alleged.” Hall v.
Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991) (quoting
McKinney v. Oklahoma Dep't of Human Services,
925 F.2d 363, 365 (10th Cir. 1991)). A plaintiff must allege
“enough facts to state a claim to relief that is
plausible on its face.” Twombly, 550 U.S. at
570. A claim should be dismissed where it is legally or
factually insufficient to state a plausible claim for relief.
Twombly, 550 U.S. at 570.
§ 1915(e)(2)(B) the Court may dismiss the complaint at
any time if the Court determines the action fails to state a
claim for relief or is frivolous or malicious. 28 U.S.C.
§ 915(e)(2)(B)(2). The authority granted by § 1915
permits the court the unusual power to pierce the veil of the
complaint's factual allegations and dismiss those claims
whose factual contentions are clearly baseless. Neitzke
v. Williams, 490 U.S. 319, 327 (1989). See also Hall
v. Bellmon, 935 F.2d at 1109. The authority to
“pierce the veil of the complaint's factual
allegations” means that a court is not bound, as it
usually is when making a determination based solely on the
pleadings, to accept without question the truth of the
plaintiff's allegations. Denton v. Hernandez,
504 U.S. 25, 32-33 (1992). The Court is not required to
accept the truth of the plaintiff's allegations but,
instead, may go beyond the pleadings and consider any other
materials filed by the parties, as well as court proceedings
subject to judicial notice. Denton, 504 U.S. at
reviewing a pro se complaint, the Court liberally construes
the factual allegations. See Northington v. Jackson,
973 F.2d 1518, 1520-21 (10th Cir. 1992). However, a pro se
plaintiff's pleadings are judged by the same legal
standards that apply to all litigants and a pro se plaintiff
must abide by the applicable rules of court. Ogden v. San
Juan County, 32 F.3d 452, 455 (10th Cir. 1994). The
Court is not obligated to craft legal theories for the
plaintiff or to supply factual allegations to support the
plaintiff's claims. Nor may the Court assume the role of
advocate for the pro se litigant. Hall v. Bellmon,
935 F.2d at 1110.
deciding whether to dismiss the complaint, in whole or in
part, the Court is to consider whether to allow plaintiff an
opportunity to amend the complaint. Pro se plaintiffs should
be given a reasonable opportunity to remedy defects in their
pleadings. Reynoldson v. Shillinger, 907 F.2d 124,
126 (10th Cir. 1990). The opportunity to amend should be
granted unless amendment would be futile. Hall v.
Bellmon, 935 F.2d at 1109. An amendment is futile if the
amended claims would also be subject to immediate dismissal
under the rule 12(b)(6) or § 1915(e)(2)(B) standards.
Bradley v. Val-Mejias, 379 F.3d 892, 901 (10th Cir.
Vann asserts claims under § 1983 arising out of his
criminal conviction in case No. CR 12-00966 PJK. Vann has
also filed a Motion Under 28 U.S.C. § 2255 to Vacate,
Set Aside, or Correct Sentence by a Person in Federal
Custody. See CR 12-00966 PJK Doc. 277 and No. CV
16-01204 PJK/LAM Doc. 2. Vann was convicted of possession
with intent to distribute 100 grams and more of a mixture and
substance containing a detectable amount of Phencyclidine
(PCP) and possession with intent to distribute Codeine, and
was sentenced to 180 months imprisonment. (CR 12-00966 PJK
Doc. 227). In his Complaint, Vann alleges Sixth Amendment and
due process violations from ineffective assistance of counsel
in his criminal case. (Doc. 1 at 3). Vann claims his counsel,
Defendants Hotchkiss, Plotsky, and Katze, failed to challenge
certain evidence, did not call him to testify on his own
behalf, and failed to raise an issue on appeal under
Alleyne v. United States, 570 U.S., 133 S.Ct. 2151
(2013). (Doc. 1 at 3). Vann seeks to have his
“conviction set aside, vacated, or corrected and any
other relief.” Doc. 1 at 6).
1983 provides a federal civil remedy for the deprivation of
any rights, privileges, or immunities secured by the
Constitution by any person acting under color of state law.
Section 1983 only authorizes suits against persons acting
under color of state law. See McCarty v. Gilchrist,
646 F.3d 1281, 1285 (10th Cir. 2011). The state
action doctrine requires that the deprivation must be caused
by the exercise of some right or privilege created by the
State or by a rule of conduct imposed by the state or by a
person for whom the State is responsible and the party
charged with the deprivation must be a person who may fairly
be said to be a state actor. Stone v. Elohim, Inc.,
336 Fed.App'x 841, 842 (10th Cir. 2009) (quoting
Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937
(1982)). The United States is not a State entity. As such, it
never acts under color of state law. Vann's criminal
defense attorneys similarly were not acting under color of
state law in defending him against federal criminal charges
in federal court. Allred v. McCaughey, 257 Fed.Appx.
91, 92-93 (10th Cir. 2007). The Complaint fails to state any
claim for relief against the United States or Defendants
Hotchkiss, Plotsky, or Katze under 42 U.S.C. § 1983.
McCarty v. Gilchrist, 646 F.3d at 1285.
Court could construe Vann's Complaint to allege claims
under Bivens v. Six Unknown Named Agents of the Fed.
Bureau of Narcotics, 403 U.S. 388 (1971). However, the
Complaint also fails to state any claim for relief pursuant
to Bivens. Bivens creates a cause of action
against federal officials similar to the cause of action
§ 1983 creates against state officials. However,
Bivens only applies to individual federal officials,
and Bivens claims against the United States and its
agencies are barred by sovereign immunity. FDIC v.
Meyer, 510 U.S. 471, 484-85 (1994); Greenlee v. U.S.
Postal Service, 247 F.App'x 953, 955 (10th Cir.
2007). Therefore, any Bivens claim for damages
against the United States fails.
does the Complaint state a Bivens claim against
Vann's defense counsel. To raise a Bivens claim,
Vann must show that Hotchkiss, Plotsky, and Katze were
federal officers acting under color of federal law.
Bivens, 403 U.S. at 389, 91 S.Ct. 1999. However, an
attorney appointed by a federal court is not a federal
officer for purposes of a Bivens-type action. An
attorney appointed by the court does not act under color of
state or federal law when performing the traditional
functions of counsel to a criminal defendant. As a result,
public defenders and other attorneys appointed to represent
defendants in federal proceedings are not federal officials
for purposes of Bivens. Allred v. McCaughey, 257
F.App'x at 92-93. Because Hotchkiss, Plotsky, and Katze
are not federal officers, Vann cannot state a Bivens
claim for relief against them.
even if the Defendants were acting under color of either
state or federal law, Vann's claims would still be barred
under Heck v. Humphry, 512 U.S. 477, 487 (1994). In
Heck, the Supreme Court addressed the question of
when a prisoner may bring a § 1983 claim relating to his
conviction or sentence. The Court held that when a state
prisoner seeks damages in a § 1983 suit, the district
court must consider whether a judgment in favor of the
plaintiff would necessarily imply the invalidity of his
conviction or sentence; if it would, the complaint must be
dismissed. Heck, 512 U.S. at 487. Similarly,
although in some circumstances a prospective injunction may
be available under § 1983, to the extent a request for
declaratory or injunctive relief would necessarily invalidate
the prisoner's conviction or sentence, declaratory and
injunctive relief are also barred by the Heck
doctrine. Wilkinson v. Dotson, 544 U.S. 74, 80-81
(2005). See also Edwards v. Balisok, 520 U.S. 641
claims are more properly characterized as Bivens
claims than as § 1983 claims. However, any
Bivens cause of action Vann asserts would still be
barred under Heck. The rationale of Heck
applies equally to claims against federal officials in
Bivens actions and against state officials under 42
U.S.C. § 1983. Doe v. District of Columbia, 697
F.2d 1115, 1123 (D.C. Cir. 1983). Heck rests on the
need for finality of criminal convictions and on the analogy
between actions under § 1983 and the common law of
malicious prosecution, which barred the suit unless the
criminal prosecution ended in the plaintiff's favor.
Heck, 512 U.S. at 484-87. There is no basis for
distinguishing the statutory cause of action against state
officers under § 1983 and the judicially-devised
Bivens cause of action against federal officials.
See Crow v. Penry, 102 F.3d 1086, 1087 (10th
Cir.1996) (per curiam); Abella v. Rubino, 63 F.3d
1063, 1065 (11th Cir.1995) (per curiam); Tavarez v.
Reno, 54 F.3d 109 (2d Cir.1995) (per curiam);
Stephenson v. Reno, 28 F.3d 26 (5th Cir.1994) (per
Heck doctrine also applies without respect to
whether the relief sought is in the form of damages or
equitable declaratory or injunctive relief. Wilkinson v.
Dotson, 544 U.S. 74, 81-82 (2005). If success in the
action would necessarily demonstrate the invalidity of the
sentence or conviction, the claim is barred by Heck. See
Harris v. Fulwood, 611 Fed.App'x 1, 2 (D.C. Cir.
2015). Vann's Request for Relief specifically asks the
Court to set aside, vacate, or correct his criminal
conviction. (Doc. 1 at 6). Vann's request for relief
clearly necessitates the invalidation of his sentence.
Because a favorable ruling on Vann's claims would require
treating his conviction and sentence in No. CR 12-00966 PJK
as invalid, the civil rights claims in the Complaint must be
dismissed under the Heck doctrine. See, Beck v.
City of Muskogee Police Dept., 195 F.3d 553, 556-57
(10th Cir.1999). The claims against the Defendants
are barred by Heck and, therefore, fail to state a
claim upon which relief can be granted under §
Court will dismiss Vann's Complaint without leave to
amend. Regardless of whether Vann is asserting his claims
under § 1983 or through a Bivens action, he is
still seeking to invalidate his criminal sentence (Doc. 1 at
4-6). Therefore, any cause of action would be barred by
Heck and granting Vann leave to amend is futile.
Hall v. Bellmon, 935 F.2d 1106, 1109-10 (10th Cir.
Court will also dismiss Vann's Complaint under
Fed.R.Civ.P. 41(b). On November 2, 2016, the Court granted
Vann leave to proceed in forma pauperis and ordered
Vann to make an initial partial payment of $42.25 under 28
U.S.C. § 1915 or show cause why the initial partial
payment should be excused within thirty days. (Doc. 4). Vann
did not make the initial partial payment but, instead, filed
a second Application to Proceed in District Court Without
Prepaying Fees or Costs. (Doc. 6). The Court construes
Vann's second Application as a response ...