United States District Court, District of Columbia
ROSEMARY M. COLLYER United States District Judge.
Robert Rubino is a California state prisoner incarcerated at
a correctional facility in San Diego, California. Mr. Rubino
filed a lawsuit pro se in the United States District
Court for the Northern District of California against
California Attorney General Kamala D. Harris and several
federal judges in the Ninth Circuit Court of Appeals and in
the Southern, Northern, Central and Eastern districts of
California. In May 2015, Mr. Rubino filed an amended
complaint that named Harris as the sole California defendant
and added the United States and United States Attorney
General Loretta Lynch. On December 7, 2015, the Northern
District of California severed the complaint and transferred
the claims against the United States and Attorney General
Lynch to this Court pursuant to 28 U.S.C. § 1406(a). The
United States and Lynch have moved to dismiss Mr.
Rubino's First Amended Complaint [Dkt. 32-1] under Rule
12(b)(6) of the Federal Rules of Civil Procedure. For the
reasons explained below, the motion will be granted.
California jury convicted Mr. Rubino in October 2006 of
sixteen counts of lewd acts upon a minor and two counts of
displaying harmful matter to a minor with the intent to
seduce the minor. The San Diego Superior Court sentenced Mr.
Rubino on February 22, 2007, to an aggregate prison sentence
of 73 years to life. See Rubino v. Allison, No.
11cv665 WQH WVG, 2012 WL 760709, at *1 (S.D. Cal. Mar. 6,
2012); Mot. to Dismiss at 2. Mr. Rubino has filed multiple
habeas petitions in state and federal courts in California
without success. He is now barred under the successive habeas
statute, 28 U.S.C. § 2244(b), from pursuing habeas
relief in federal court without first obtaining permission
from the Ninth Circuit.
Amended Complaint, Mr. Rubino invokes the Administrative
Procedure Act (“APA”), 5 U.S.C. § 702, and
42 U.S.C. §§ 1983-85, and he purports to bring a
class action.Mr. Rubino states that the “nine Doe
plaintiffs are representative of the class that have all been
convicted of committing non-violent ‘any touching'
acts without intent that ‘actually is not required'
to convict anyone of California Penal Code 288.” Compl.
at 2. He claims that the California statute under which he
was convicted is “unconstitutionally void for both
vagueness and overbreadth as so construed;” thus
“both declaratory and injunctive relief are
sought.” Id. In addition, Mr. Rubino
challenges on constitutional grounds various provisions of
the Prison Litigation Reform Act (“PLRA”) and the
Antiterrorrism and Effective Death Penalty Act
(“AEDPA”), including the successive habeas
statute and AEDPA's one-year statute of limitations.
See Head v. Wilson, 792 F.3d 102, 106 (D.C. Cir.
2015) (describing AEDPA as “the federal court's
‘labyrinth' collateral procedure, ” the
“strictures” with which a would-be federal habeas
petitioner [ ] must comply”) (quoting Maynard v.
Boone, 468 F.3d 665, 669 (10th Cir. 2006)).
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim challenges the adequacy
of a complaint on its face. Fed.R.Civ.P. 12(b)(6). A
complaint must be sufficient “to give a defendant fair
notice of what the . . . claim is and the grounds upon which
it rests.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007) (citation and internal quotation marks
omitted). Although a complaint does not need detailed factual
allegations, a plaintiff's obligation to provide the
grounds of his entitlement to relief “requires more
than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.”
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim
for relief that is “plausible on its face.”
Id. at 570. A court must treat the complaint's
factual allegations as true, “even if doubtful in
fact.” Id. at 555 (citation and internal
quotation marks omitted). But a court need not accept as true
legal conclusions set forth in a complaint. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). In deciding a motion
under Rule 12(b)(6), a court may consider the facts alleged
in the complaint, documents attached to the complaint as
exhibits or incorporated by reference, and public matters
about which the court may take judicial notice. Abhe
& Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C.
transferring court construed Mr. Rubino's claims as
brought under Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971)-the
authority for bringing personal-capacity lawsuits against
federal officials for constitutional violations. But Mr.
Rubino contends that the United States and Attorney General
Lynch “are sued in their political and official
capacities for enacting and applying AEDPA's and the
PLRA's unconstitutional as applied Statutes and Rules to
deny either 42 U.S.C. 1983, or habeas corpus review as
required by the First Amendment and Article 1, Section 9,
Clause 2 of the U.S. Const.” Am. Compl. at 16. In
addition, Mr. Rubino does not seek a Bivens remedy,
which “is [money] damages or nothing.” Davis
v. Passman, 442 U.S. 228, 245 (1979); accord
Simpkins v. D.C. Gov't, 108 F.3d 366, 369 (D.C. Cir.
1997) (“Bivens actions are for
damages.”). Consequently, the transferred
Bivens claim will be dismissed under Rule 12(b)(6).
Rubino's claim against Lynch in her official capacity is
generally “another way of pleading an action against
[the United States].” Kentucky v. Graham, 473
U.S. 159, 165-66 (1985) (citing Monell v. N.Y. City
Dep't of Soc. Servs., 436 U.S. 658 (1978)). Mr.
Rubino's official-capacity claim rests on an erroneous
premise. Congress (not the Attorney General) enacts laws such
as the AEDPA and PLRA, and the federal courts (not the
Attorney General) generally “apply the law as it
reads.” Flatow v. Islamic Republic of Iran,
201 F.R.D. 5, 9 (D.D.C. 2001). Furthermore, it is
“well-settled that a prisoner seeking relief from his
conviction or sentence may not bring [ ] an action” for
injunctive and declaratory relief, Williams v. Hill,
74 F.3d 1339, 1340 (D.C. Cir. 1996) (per curiam) (citations
omitted)); such is the exclusive province of habeas corpus,
Preiser v. Rodriguez, 411 U.S. 475, 489 (1973).
Rubino insists that he “is not seeking relief or
release from his state court convictions or sentences,
” Opp'n at 1 [Dkt. 82], but “he does not
claim an injury apart from the fact of his
conviction[s].” Williams, 74 F.3d at 1340. Mr.
Rubino claims in his opposition that he is being denied
“meaningful court access.” Opp'n at 7. He
cites the favorable termination requirement established in
Heck v. Humphrey, 512 U.S. 477 (1994), which bars a
prisoner from filing a civil suit prior to invalidating his
conviction or sentence if his success in the civil suit would
necessarily invalidate the conviction or sentence. Mr. Rubino
seems to suggest that he can never satisfy Heck
because of the barriers he faces under AEDPA. See
Opp'n at 7 (stating that “as applied by the federal
courts in California, plaintiff is both procedurally and
objectively barred from receiving any/all habeas corpus
relief or to appeal their denials to a Circuit Court”).
But the constitutional right to access the courts is
“ancillary to the underlying claim, without which a
plaintiff cannot have suffered injury by being shut out of
court.” Christopher v. Harbury, 536 U.S. 403,
415 (2002). Thus, to establish a court access claim, a
plaintiff must show that he has lost a “valid legal
claim” or has been unable “to raise such a claim
in any other proceeding.” Ali v. District of
Columbia, 278 F.3d 1, 8 (D.C. Cir. 2002). The fact that
Mr. Rubino is subject to the restrictions of Heck
and AEDPA's successive habeas rule undermines any notion
that he has lost a valid claim. See Felker v.
Turpin, 518 U.S. 651, 664 (1996) (holding that
AEDPA's restrictions on filing second habeas petitions
“do not amount to a ‘suspension' of the writ
contrary to Art. I, § 9” of the Constitution);
accord Doggett v. Gonzales, No. 06-0575, 2007 WL
2893405, at *7 (D.D.C. Sept. 29, 2007) (concluding that
“plaintiffs are not denied access to the courts because
they have no actionable legal claim”).
to the extent that Mr. Rubino is seeking “relief to
halt California Federal Courts' abuse of the United
States Constitution and the American Criminal Justice system,
” based on their application of the AEDPA and PLRA to
him, Opp'n at 15, this Court is without jurisdiction to
grant or deny such relief. See Panko v. Rodak, 606
F.2d 168, 171 n.6 (7th Cir. 1979), cert. denied, 444
U.S. 1081 (1980) (“It seems axiomatic that a lower
court may not order the judges or officers of a higher court
to take an action.”); United States v. Choi,
818 F.Supp.2d 79, 85 (D.D.C. 2011) (district courts
“generally lack appellate jurisdiction over other
judicial bodies, and cannot exercise appellate mandamus over
other courts”) (citing Lewis v. Green, 629
F.Supp. 546, 553 (D.D.C. 1986)).