Christopherson v. USA et al

MOTION to Dismiss for Lack of Jurisdiction

D. Neb.April 28, 2017

1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STEVEN W. MYHRE Acting United States Attorney District of Nevada LINDSY M. ROBERTS Assistant United States Attorney 501 Las Vegas Boulevard, South, Suite 1100 Las Vegas, Nevada 89101 Telephone: 702-388-6336 Email: lindsy.roberts@usdoj.gov Attorneys for the United States UNITED STATES DISTRICT COURT DISTRICT OF NEVADA IAN CHRISTOPHERSON, Plaintiff, v. UNITED STATES OF AMERICA, RANDALL ROSKE, JOSH TOMSHECK, and ROES I-V, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) Case No: 2:16-cv-02872-JCM-PAL MOTION TO DISMISS The United States moves to dismiss Plaintiff’s Complaint pursuant to Federal Rule of Civil Procedure 12(b)(1). The Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., as amended, does not confer jurisdiction on this Court to hear the claims Plaintiff alleges. The FTCA’s limited waiver of sovereign immunity does encompass claims made against employees of the Federal Public Defenders Office when those employees are providing professional services, which includes representing a defendant in criminal proceedings. Further, Plaintiff’s conviction stands and he cannot make a collateral attack via civil complaint on a conviction that has not been vacated or reversed by the court. For these reasons, the Complaint must be dismissed as against the United States. Case 2:16-cv-02872-JCM-PAL Document 18 Filed 04/28/17 Page 1 of 7 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This motion is based on the following Memorandum of Points and Authorities, along with all papers and pleadings on file. Respectfully submitted this 28th day of April 2017. STEVEN W. MYHRE Acting United States Attorney /s/ Lindsy M. Roberts LINDSY M. ROBERTS Assistant United States Attorney MEMORANDUM OF POINTS AND AUTHORITIES I. FACTS/PROCEDURAL HISTORY This matter arises out of Plaintiff’s conviction on two counts of tax evasion under 26 U.S.C. § 7201. He was incarcerated and a judgment of “over $700,000” was entered against him. ECF No. 1 ¶34. Defendant Roske was Plaintiff’s trial counsel. Id. at ¶1. Defendant Tomsheck represented Plaintiff from December 2011-March 2013. Id. at ¶2. Plaintiff alleges that as to these two defendants, “the cause of action has not yet accrued under Nevada state law.” Id. After his conviction, Plaintiff was represented by the federal public defender’s (“FPD”) office for his appeal. Id. at ¶27. Alina Shell was the assigned attorney. Id. Plaintiff’s allegations against the FPD and Ms. Shell are that the appeal was mishandled and that had it been handled correctly his conviction would have been reversed. Id. at ¶¶30-34. Plaintiff currently has pending a 28 U.S.C. § 2255 motion in case number 2:09-cr-00056-MMD-VCF. Plaintiff asserts jurisdiction under the Federal Tort Claims Act (“FTCA”). He alleges that the FPD’s office is “an entity covered by the FTCA.”1 ECF No. 1 ¶27. Plaintiff is incorrect and the federal defendant employees who provided representation to Plaintiff are not considered employees of the United States for purposes of the FTCA.2 Because no applicable waiver of sovereign immunity applies, the Court is without jurisdiction and the United States must be 1 Although he does not explicitly assert that the United States is liable under the FTCA for the conduct of the FPDs, he appears to claim that the United States would be liable for their conduct. 2 Plaintiff makes no allegations against the United States based on any conduct of any other defendant including attorneys Roske and/or Tomsheck. Case 2:16-cv-02872-JCM-PAL Document 18 Filed 04/28/17 Page 2 of 7 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 dismissed from this matter. Additionally, a civil complaint is not a proper vehicle for Plaintiff to challenge his criminal convictions. II. ARGUMENT A. Standard of Review-Rules 12(b)(1) and 12(b)(6) Rule 12(b)(1) authorizes a challenge based on lack of subject matter jurisdiction. In Rule 12(b)(1) facial attacks, the Court looks at the sufficiency of the allegations in the complaint for subject matter jurisdiction. See Whitehorn v. F.C.C., 235 F. Supp.2d 1092, 1095 (D. Nev. 2002) (citations omitted). In Rule 12(b)(1) factual attacks, the Court can hear and weigh extrinsic evidence, resolve factual disputes, and decide if it has subject matter jurisdiction without assuming the allegations in the complaint are true. See id. at 1096 (citations omitted). In this matter, the Court can look to the Complaint facially and determine that Plaintiff has failed to establish any basis for subject matter jurisdiction or any applicable waiver of sovereign immunity. The United States’ sovereign immunity “is a question of the Court’s subject matter jurisdiction.” McMillan v. Dept. of Interior, 907 F. Supp. 322, 325 (D. Nev. 1995) (citing United States v. Sherwood, 312 U.S. 584, 586 (1941)). See also Duval Ranching Co. v. Glickman, 965 F. Supp. 1427, 1444 (D. Nev. 1997) (“The absence of the United States’ consent to be sued is a ‘fundamental, jurisdictional defect’ which negates our subject matter jurisdiction.”) (citations omitted). “Under the principle of sovereign immunity, the United States may only be sued where it has expressly consented to such suit by statute.” McMillan, 907 F. Supp. at 325 (citing Block v. North Dakota, 461 U.S. 273, 287 (1983)). The United States’ sovereign immunity applies to suits against (1) federal agencies, id. (citation omitted), and (2) federal employees in their official capacities, id. at 327 (citation omitted). Waivers of sovereign immunity must be strictly construed in favor of the sovereign. See Brady v. United States, 211 F.3d 499, 502 (9th Cir. 2000) (citation omitted); accord McMillan, 907 F. Supp. at 325 (citations omitted). “The party suing the United States must point to an unequivocal waiver of sovereign immunity.” McMillan, 907 F. Supp. at 325 (citing Holloman v. Watt, 708 F.2d 1399, 1401 (9th Cir. 1983)). Case 2:16-cv-02872-JCM-PAL Document 18 Filed 04/28/17 Page 3 of 7 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Rule 12 (b)(6) mandates that a court dismiss a cause of action that fails to state a claim upon which relief can be granted. See North Star Intern. v. Ariz. Corp. Comm., 720 F.2d 578, 581 (9th Cir. 1983). When ruling on a Rule 12(b)(6) motion, “the court will take all material allegations as true and construe them in the light most favorable to the plaintiff. The court, however, is not required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” Hiser v. Nev. Dept. of Corr., 2015 U.S. Dist. LEXIS 153825 *3 (D. Nev. Nov. 13, 2015) (citations omitted). Plaintiff’s Complaint must satisfy the pleading standards of Rule 8(a)(2) to survive a Rule 12(b)(6) motion to dismiss. Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1103 (9th Cir. 2008). Rule 8(a) requires the Plaintiff to set forth a short and plain statement of the grounds for jurisdiction, together with a short and plain statement of the claim showing that he is entitled to relief. Fed. R. Civ. P. 8(a)(1), (2). While Rule 8(a) does not require detailed factual allegations, “it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). It is not enough for a plaintiff to simply use labels, conclusions, naked assertions, or a formulaic recitation of the elements of a cause of action to prove entitlement to relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). In Twombly and Iqbal, the Supreme Court set forth a “two pronged” analysis to evaluate the sufficiency of pleadings under Rule 8. The first prong requires the court to determine which statements are mere conclusions, as conclusory statements are “not entitled to the assumption of truth” unless they are supported by additional “factual allegations.” Iqbal, 556 U.S. at 679. The second prong of the Twombly/Iqbal analysis looks to the facts which survive the first prong to determine whether the complainant “state[s] a claim to relief that is plausible on its face.” Id. at 678. In this case, Plaintiff has failed to provide this court with a statute that waives the United States’ immunity for the claims he allege. The only statute he alleges for a jurisdictional basis is the FTCA, and as noted below the limited waiver of the United States’ sovereign immunity in the FTCA specifically excludes the claims Plaintiff alleges. The Complaint should be dismissed under Rule 12(b)(1). Additionally, Plaintiff fails to state a claim under Rule 12(b)(6), as a civil Case 2:16-cv-02872-JCM-PAL Document 18 Filed 04/28/17 Page 4 of 7 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 tort action is an improper vehicle to challenge an outstanding criminal conviction. B. The Court lacks jurisdiction over Plaintiff’s FTCA claim against the United States. The FTCA provides “a limited waiver of the United States’ traditional sovereign immunity, authorizing third parties to file certain civil tort suits against the government for monetary damages.” Vickers v. United States, 228 F.3d 944, 948 (9th Cir. 2000). With exceptions not relevant here, the FTCA grants federal courts jurisdiction over claims: …for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. 28 U.S.C. § 1346(b)(1). For purposes of the FTCA, “employee of the government” is defined as: (1) officers or employees of any federal agency, members of the military or naval forces of the United States, members of the National Guard while engaged in training or duty … and persons acting on behalf of a federal agency in an official capacity, temporarily or permanently in the service of the United States, whether with or without compensation, and (2) any officer or employee of a Federal public defender organization, except when such officer or employee performs professional services in the course of providing representation under section 3006A of title 18. 28 U.S.C. § 2671 (emphasis added). The FPD’s appointment and representation of Plaintiff in his appeal falls within the scope of 18 U.S.C. § 3006. As such, by the terms of 28 U.S.C. § 2671, employees of the FPD, including Ms. Shell, who handled Plaintiff’s case are not considered employees of the government for purposes of liability under the FTCA.3 C. Plaintiff fails to state a claim upon which relief can be granted. Plaintiff’s claim also fails because a tort case is not a proper vehicle to make a collateral attack on a criminal conviction. See Heck v. Humphrey, 512 U.S. 477, 484-485 (1994) (“the hoary principal that civil tort actions are not appropriate vehicles for challenging the validity of 3 It should also be noted that 18 U.S.C. § 3006A(g)(3) provides that “[t]he Director of the Administrative Office of the United States Court shall … provide representation for and hold harmless, or provide liability insurance for, any person who is an officer or employee of a Federal Public Defender Organization established under this subsection …” If federal public defenders were government employees for purposes of the FTCA there would be no need for the Administrative Office of the United States Court to provide them liability insurance. Case 2:16-cv-02872-JCM-PAL Document 18 Filed 04/28/17 Page 5 of 7 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 outstanding criminal judgments applies to §1983 damages actions that necessarily require the plaintiff to prove the unlawfulness of his conviction or confinement …”). Heck, an action based on § 1983, held: [I]n order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus. Courts have extended the Supreme Court’s logic in Heck to FTCA actions. See Erlin v. United States, 364 F.3d 1127, 1132 (9th Cir. 2004) (“Just as the Supreme Court read § 1983 as containing a restriction on when a litigant can bring a suit that impugns the validity of a conviction or imprisonment, we read the FTCA as containing the very same restrictions.”). See also Wright v. United States Dept. of Homeland Sec., 2015 U.S. Dist. LEXIS 110509, *5 (N.D. Cal. Aug. 20, 2015) (“The principle enunciated in Heck has been applied to claims brought pursuant to the FTCA if, in order to prevail, a plaintiff would have to prove the invalidity of the underlying conviction.”) (citations omitted). Plaintiff makes no allegation that his convictions were reversed, expunged, or otherwise declared invalid. As such, he cannot challenge those convictions through an FTCA action. III. CONCLUSION There is no basis for jurisdiction over the United States under the FTCA because there are no government employees for whom the Act provides coverage whose conduct is at issue. Further, this suit is an improper vehicle for Plaintiff to challenge criminal convictions that have not been reversed, expunged or otherwise declared invalid. The Complaint must be dismissed. Respectfully submitted this 28th day of April 2017. STEVEN W. MYHRE Acting United States Attorney /s/ Lindsy M. Roberts LINDSY M. ROBERTS Assistant United States Attorney Case 2:16-cv-02872-JCM-PAL Document 18 Filed 04/28/17 Page 6 of 7 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE I, Lindsy M. Roberts, certify that the MOTION TO DISMISS was served this date via the Court’s Electronic Case Filing system. Dated this 28th day of April 2017. /s/ Lindsy M. Robert LINDSY M. ROBERTS Assistant United States Attorney Case 2:16-cv-02872-JCM-PAL Document 18 Filed 04/28/17 Page 7 of 7