Opinion
Civil Action No. 3:99-CV-1280-D.
April 24, 2000
MEMORANDUM OPINION AND ORDER
Defendant Mark D. McBiide, Esq. ("McBride") moves pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss this Bivens action by plaintiff Brian Anthony Davis ("Davis"). For the reasons that follow, the court grants the motion.
McBride also seeks dismissal under Rule 12(b)(1), but the court discerns no basis to question its subject matter jurisdiction.
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
I
Davis sues defendants Edwin King ("King"), Roy Lee Stacy, Esq. ("Stacy"), Lawrence Mitchell, Esq. ("Mitchell"), and McBride, alleging constitutional violations remediable under Bivens. Davis was tried and convicted of multiple federal drug offenses. The court later sentenced him to life in prison.
King is now a state judge. Because he was an attorney in private practice when he represented Davis, the court will refer to him as "King" rather than as "Judge King."
Stacy and King served as Davis' trial counsel. The court appointed Stacy to represent Davis; Stacy, in turn, hired King. McBride, an Assistant United States Attorney, prosecuted the case. Mitchell was Davis' retained habeas counsel. Davis alleges that he went to trial despite his desire to accept a plea offer that would have entailed a sentence much more favorable than life imprisonment, He avers that the government offered him a ten-year sentence in exchange for a guilty plea and his cooperation, that he advised his counsel that he wished to accept the offer, but that his counsel unilaterally proceeded to trial over his objection.
After Davis' conviction and sentence were affirmed on direct appeal, see United States v. Stevens, No. 94-10216 (5th Cir. May 24, 1995) (unpublished opinion), he filed a motion to vacate sentence, pursuant to 28 U.S.C. § 2255. The present lawsuit stems from that habeas proceeding. Davis alleges that when he sought collateral relief on the basis that his trial attorneys were ineffective for rejecting the ten-year deal and proceeding to trial, the government responded by producing a written statement that showed that Davis was the one who decided to reject the government's offer and to stand trial. Davis alleges that the document is a forgery fabricated by the defendants, including McBride.
The court denied habeas relief. Davis appealed the court's decision, and the Fifth Circuit denied a certificate of appealability on March 29, 2000. See United States v. Davis, No. 99-11104 (5th Cir. Mar. 29, 2000) (order) (per Smith, J.).
Davis sues his trial attorneys, habeas counsel, and the prosecutor. He alleges that defendants conspired to violate his civil rights by forging the written statement, contends that Mitchell refused to challenge the authenticity of the statement, forcing Davis to proceed with his § 2255 motion pro se, and asserts that defendants destroyed the statement and represented to the magistrate judge that the statement had "disappeared." Davis seeks $1 million in damages from each defendant.
McBride moved to dismiss Davis' complaint on several grounds. The court referred the motion to the magistrate judge, who recommended dismissing the case against McBride. The court declined to adopt the recommendation. It concluded that the magistrate judge had only addressed the issue of absolute immunity and held that Davis did not appear to be complaining only about McBride's use of fabricated evidence in the habeas proceeding. The court held that Davis arguably seeks relief based on McBride's alleged participation in a conspiracy to fabricate the written statement. Applying a functional approach to McBride's role as a prosecutor, the court concluded that it could not say on the basis of the complaint alone that McBride is absolutely immune. The court reasoned that although prosecutorial immunity is broad and applies even if the prosecutor is accused of knowingly using perjured testimony, there is a material difference between a prosecutor's knowing use of fabricated evidence as an advocate and a prosecutor's fabrication of evidence while acting outside that role.
The court agreed with McBride, however, that Davis had not adequately pleaded a conspiracy. The court held that Davis must plead specific operative facts upon which his claim is based. Bald allegations that a conspiracy existed are insufficient. The court concluded that Davis' complaint did little more than allege that McBride was a participant in a conspiracy to forge the written statement in question. Accordingly, although the court denied McBride's motion to dismiss, it ordered Davis to file an amended complaint that pleads a conspiracy based on specific factual allegations.
Davis filed his amended complaint on March 6, 2000. McBride filed a renewed motion to dismiss on March 14, 2000.
II
McBride argues that Davis has failed to state a claim upon which relief can be granted. He contends that Davis' amended complaint fails to plead a conspiracy based on specific factual allegations. The court agrees.
Plaintiffs who advance conspiracy claims must plead specific facts, not merely conclusory allegations. Young v. Biggers, 938 F.2d 565, 569 (5th Cir. 1991); Lynch v. Cannatella, 810 F.2d 1363, 1371 (5th Cir. 1987). Bald allegations that a conspiracy existed are insufficient. Lynch, 810 F.2d 1371. Davis' amended complaint fails to allege specific facts. He merely avers that "defendant McBride conspired and agreed with defendants King, Stacy and Mitchell to forge the `note.'" Am. Compl. ¶ 17. He alleges that "[b]ecause of plaintiff's persistent request for handwriting examination of the note, defendants McBride, King, Stacy and Mitchell conspired and agreed to keep plaintiff incarcerate[d] for the duration of his life and deprive plaintiff from receiving the 10-year plea offered." Id. at ¶ 25. Davis asserts that during an ex parte hearing, defendants lied to the magistrate judge and stated that the note was now missing. Id. He contends that defendants destroyed the note. These allegations are insufficient to plead conspiracy. See, e.g., Young, 938 F.2d at 569 (holding that plaintiff's conclusory assertions that attorneys conspired to rig jury lacked specific facts necessary to state conspiracy claim). Davis' assertion that "[d]efendants McBride, King, Stacy and Mitchell conspired to violate plaintiff's constitutional right . . . because plaintiff is a black male," Am. Compl. ¶ 27, is similarly flawed, because it contains no specific facts that support his conclusory allegation.
Davis also maintains that McBride attached a copy of the allegedly forged written statement to the government's response to his § 2255 motion, id. at ¶ 18, and that McBride moved to strike the statement from the record, id. at ¶ 26. These allegations are not sufficient to plead conspiracy. Moreover, McBride is entitled to absolute immunity in presenting the government's case. See, e.g., Imbler v. Pachtman, 424 U.S. 409, 431 (1976) (holding that in initiating prosecution and presenting state's case, prosecutor is immune from civil suit for damages under 42 U.S.C. § 1983); Kerr v. Lyford, 171 F.3d 330, 337 (5th Cir. 1999) (holding that prosecutor's absolute immunity from § 1983 liability "will not be stripped because of action that `was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has acted in the clear absence of all jurisdiction'") (quoting Stump v. Sparkman, 435 U.S. 349, 356-57 (1978)).
Accordingly, the court grants McBride's March 14, 2000 renewed motion to dismiss and dismisses this action against him with prejudice by Rule 54(b) judgment filed today.
SO ORDERED.