MEMORANDUM OPINION
TREVOR
N. McFADDEN, U.S.D.J.
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.
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 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 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).
For
these reasons, the Court will dismiss Counts One, Two, Three,
and Four against the FBI, the BLM, and the ...