Rudisill v. Garland

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

CIVIL CASE NO. 1:22-cv-00227-MR

DWIGHT A. RUDISILL, )

)

Plaintiff, )

)

vs. ) ORDER

)

MERRICK GARLAND, et al., )

)

Defendants. )

________________________________ )

THIS MATTER is before the Court on initial review of Plaintiff’s

Complaint, [Doc. 1], pursuant to 28 U.S.C. §§ 1915A and 1915(e); Plaintiff’s

“Privacy Protection for Filings Made with the Court,” [Doc. 4]; and Plaintiff’s

Motion to Appoint Marshal to Serve, [Doc. 11]. Plaintiff paid the filing fee

after the Clerk denied his application to proceed in forma pauperis.1 [Doc.

3; 1/5/2023 Docket Entry].

I. PROCEDURAL HISTORY

On July 8, 1998, the Plaintiff Dwight A. Rudisill (“Plaintiff”) was charged

in a four count Bill of Indictment with carjacking, using a firearm during a

crime of violence, transporting a stolen vehicle in interstate commerce and

1 Plaintiff appealed the Clerk’s Order requiring payment of the full filing fee. [Doc. 16].

That appeal remains pending.

felony possession of a firearm, in violation of 18 U.S.C. §§ 2119, 924(c)(1),

2312, and 922(g), respectively.2 [Criminal Case No. 4:98-cr-212 (“CR”), Doc.

1]. Plaintiff pled guilty to the charge of carjacking pursuant to a plea

agreement and, in exchange, the Government dismissed the remaining three

counts. [CR Doc. 14]. In accordance with the terms of the plea agreement,

the Plaintiff was sentenced to three hundred months’ imprisonment. [CR

Doc. 21]. He filed a direct appeal and, on May 15, 2000, the Fourth Circuit

vacated Plaintiff’s conviction because the Indictment did not contain a

recitation that serious bodily injury had occurred during the carjacking

offense to which the Plaintiff pled guilty. United States v. Rudisill, No. 99-

4588, 2000 WL 620314 (4th Cir. May 15, 2000) (citing Jones v. United

States, 526 U.S. 227, 119 S.Ct. 1215 (1999)). Rather, the Plaintiff only pled

guilty to a violation of 18 U.S.C. § 2119(1), which does not include the

element of serious bodily injury. The Fourth Circuit held, therefore, that the

sentence was erroneously imposed. Id.

On remand, the Government successfully moved to set aside the plea

agreement to reinstate the three counts previously dismissed against

Petitioner. [CR Doc. 34]. In August 2000, Petitioner was charged in a

2 Some of the statutory citations have changed since Petitioner’s indictment. The Court

cites the statutes in their current form.

Superseding Bill of Indictment with one count of using and carrying a firearm

during a crime of violence in violation of 18 U.S.C. § 924(c)(1), one count of

transporting a stolen vehicle in interstate commerce in violation of 18 U.S.C.

§ 2312, and one count of felony possession of a firearm in violation of 18

U.S.C. § 922(g)(1). [CR Doc. 35]. After a jury trial, Petitioner was found

guilty of all three counts and was sentenced on October 31, 2001 to 465

months’ imprisonment. [CR Docs. 55, 63]. Petitioner did not appeal his

conviction or sentence. [See CR Doc. 59]. Since then, Petitioner has thrice

unsuccessfully moved pursuant to 28 U.S.C. § 2255 to vacate, correct, or

set aside his conviction or sentence. [Civil Case No. 1:09-cv-262, Docs. 1,

2; Civil Case No. 1:10-cv-253, Docs. 1, 3; Civil Case No. 1:19-cv-112, Docs.

1, 9].

In March 2022, Plaintiff filed an unverified Petition to Perpetuate

Testimony pursuant to Rule 27(a) of the Federal Rules of Civil Procedure.

[Civil Case No. 1:22-mc-00015-MR-WCM (“CV”), CV Doc. 2-4; see CV Doc.

2-8]. In that petition, Plaintiff sought to perpetuate testimony of Assistant

United States Attorney (AUSA) David A. Brown in relation to Brown’s

knowledge of and role in the criminal charges against Plaintiff for violation of

18 U.S.C. § 2119 “or any other federal offense,” including the related grand

jury proceeding. [CV Doc. 2-4 at 3]. Plaintiff stated that he expected to bring

an action in this Court “under the Federal Tort Claims Act, pursuant to 28

U.S.C. §2671 et seq., the Westfall Act, and the Civil Rights Act pursuant to

42 U.S.C. §1891 et seq.,” [CV Doc. 2-4 at 2], against the United States and

that he could not bring such action until his claim were administratively

adjudicated.3 [Id.; see Doc. 2-8 at 4]. The Court denied Plaintiff’s Rule 27(a)

petition to perpetuate testimony for the reasons stated in the Court’s Order.

[CV Doc. 5]. Plaintiff appealed, [CV Doc. 7], and the Fourth Circuit affirmed,

[CV Doc. 10].

Plaintiff now files the instant Complaint pursuant to Bivens v. Six

Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388

(1971). [Doc. 1 at 4]. Plaintiff names the following Defendants: (1) Merrick

Garland, in his official capacity as Attorney General, United States

Department of Justice; (2) David Alan Brown, Sr., identified as an AUSA; (3)

Jerry W. Miller, also identified as an AUSA; (4) John Doe Defendants,

3 Plaintiff submitted an administrative tort claim dated November 23, 2021 for

$21,000,000.00, to the Administrative Office of the Courts (“AO”) and the Department of

Justice (“DOJ”). [See CV Doc. 2-8 at 2-4]. On April 11, 2022, the AO notified Plaintiff of

its full denial of Plaintiff’s claim. [Doc. 1-5 at 8]. On August 18, 2022, the DOJ notified

Plaintiff of its denial of Plaintiff’s claim, which had been made “relative to the alleged acts

or omissions of employees of the U.S. Attorney’s Office for the Western District of North

Carolina, the U.S. Marshals Service, and the Federal Bureau of Investigation.” [Doc. 1-5

at 9; see Doc. 1-1 at 23]. The DOJ determined that Plaintiff’s claim was “not

compensable.” [Doc. 1-5 at 9]. The DOJ also advised Plaintiff of his right to file suit with

this Court within six months if he were dissatisfied with the denial of his claim. [Id. (citing

28 U.S.C. § 2401(b))].

identified as unknown U.S. Marshals; (5) Lacy H. Thornburg, Retired United

States District Court Judge; and (6) Max O. Cogburn, then serving as a

United States Magistrate Judge.4 [Doc. 1-1 at 2; Doc. 1 at 2-4]. Other than

Defendant Garland, Plaintiff sues the Defendants in their individual

capacities only. [Id.].

Plaintiff alleges, in sum, that the individual Defendants’ conduct, which

he alleges occurred between July 1998 and November 2001, resulted in

Plaintiff’s “malicious arrest” and false imprisonment. [See Docs. 1, 1-1].

Plaintiff alleges that this conduct consisted of and/or resulted in Plaintiff’s

unlawful arrest and plea to the carjacking charge under 18 U.S.C. § 2119,

entry of a void judgment and illegal sentence on that charge, misconduct

relative to setting aside the plea agreement, reinstatement of and conduct of

trial on previously dismissed charges, entry of a second judgment reliant on

the original void judgment, and/or active concealment of material facts.5

[See Doc. 1-1 at 4-7]. Plaintiff also alleges that Defendant Garland “omitted

to investigate the official acts, records, and accounts of these Assistant

4 Plaintiff also references “Defendant Logan” in the body of the Complaint, but Plaintiff

does not list him/her in the case caption or in the paragraphs identifying the Defendants.

[Doc. 1-1 at 5; see id. at 1-2].

5 Plaintiff also alleges that Defendant Logan “fabricated evidence by and through the

presentence report, wherein, predicate facts were asserted that had no evidentiary

support.” [Doc. 1-1 at 5].

United States Attorneys, Marshals, and other trustee-agents executing the

administration of plaintiff’s estate.” [Id. at 7]. Plaintiff claims that his rights

under the Fourth, Fifth, Sixth, and Fourteenth Amendments and 18 U.S.C.

§§ 3044, 3046, 3362, 3438, 3584, and 3626 were violated by this conduct.

[Doc. 1 at 4; see Doc. 1-1 at 8-20]. For relief, Plaintiff seeks $21,000,000.00

in compensatory damages and a preliminary injunction. [Doc. 1 at 20-23,

25-26].

II. ANALYSIS

Plaintiff brings his Complaint pursuant to Bivens. A Bivens action is

the judicially-created counterpart to 42 U.S.C. § 1983, and allows an action

for money damages to be brought against individuals acting under the color

of federal law for injuries caused by their unconstitutional conduct. Bivens v.

Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388,

395-97 (1971). Bivens’ core premise is to deter individual officers’

unconstitutional acts. See Correctional Servs. Corp. v. Malesko, 534 U.S.

61 (2001). “Because vicarious liability is inapplicable to Bivens and § 1983

suits, a plaintiff must plead that each Government-official defendant, through

the official’s own individual actions, has violated the Constitution.” Ashcroft

v. Iqbal, 556 U.S. 662, 676 (2009). Bivens claims are not actionable against

the United States, federal agencies, or public officials acting in their official

capacities. See FDIC v. Meyer, 510 U.S. 471, 475, 484-86 (1994); Dao v.

Chao, 306 F.3d 170, 184 (4th Cir. 2002) (“a Bivens action does not lie against

either agencies or officials in their official capacity.”) (citing Meyer, 510 U.S.

at 484-86).

Plaintiff’s Complaint fails initial review for several reasons.

First, Plaintiff seeks recovery for “malicious arrest” and false

imprisonment under Bivens. In Heck, the United States Supreme Court held

as follows:

[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, 28 U.S.C. § 2254. A claim

for damages bearing that relationship to a conviction

or sentence that has not been so invalidated is not

cognizable under § 1983. Thus, 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 unless the plaintiff can

demonstrate that the conviction or sentence has

already been invalidated. But if the district court

determines that the plaintiff’s action, even if

successful, will not demonstrate the invalidity of any

outstanding criminal judgment against the plaintiff,

the action should be allowed to proceed, in the

absence of some other bar to the suit.

Id. at 486-87 (footnotes omitted; emphasis added); see Poston v. Shappert,

22 Fed. App’x 301, at *1 (4th Cir. 2007) (applying Heck rationale to bar claims

for damages under § 1983 and Bivens). Given the nature of Plaintiff’s

allegations, a judgment in his favor would necessarily imply the invalidity of

any conviction or sentence in the underlying criminal matter. Plaintiff,

however, has not alleged that his conviction has been reversed or otherwise

invalidated and the Court’s records confirm Plaintiff’s conviction and

sentence remain undisturbed. See Wiley v. Buncombe County, No.

1:10cv181, 2011 WL 3323152, at *4 (W.D.N.C. Aug. 2, 2011) (noting that

court may take judicial notice of matters of public record). Therefore,

Plaintiff’s Complaint is barred by Heck and will be dismissed.

Second, as noted, Bivens claims are not actionable against the United

States, federal agencies, or public officials acting in their official capacities.

See Meyer, 510 U.S. at 475, 484-86. As such, Defendant Garland is not a

proper Defendant in this matter and will also be dismissed on this ground.

Third, the other Defendants, identified as judges, prosecutors, and

unidentified U.S. Marshals, are immune from suit. See Stump v. Sparkman,

435 U.S. 349, 359 (1996); Imbler v. Pachtman, 424 U.S. 409, 419 (1976);

Holder v. U.S. Marshals Office, No. 5:16-CV-00145, 2016 WL 3919502, at

*3 (E.D.N.C. May 17, 2017); Butz v. Economou, 438 U.S. 478, 500-01 (1978)

(recognizing that immunities available to federal officials in Bivens are largely

analogous to those available to state officers in § 1983 actions). These

Defendants, therefore, will also be dismissed on this ground.6

As such, Plaintiff has failed to state any claim upon which relief may

be granted and has failed initial review. The Court will dismiss Plaintiff’s

Complaint. The dismissal is without prejudice only as to Plaintiff’s ability to

refile an action for false imprisonment against proper defendants only if and

when his federal conviction is overturned and the Complaint, therefore, is not

barred by Heck.7 Moreover, because Plaintiff has not stated a claim for relief

in the first place, the Court declines to specifically address his request for

injunctive relief.

IV. PLAINTIFF’S MOTIONS

Also pending is Plaintiff’s “Privacy Protection for Filings Made with the

Court,” [Doc. 4], and supporting Memorandum, [Doc. 4-1], which the Court

collectively construes as a motion to seal. Plaintiff asks the Court to seal his

6 To the extent Plaintiff sought or intended to include “Defendant Logan” as a Defendant

in this matter, he/she would also be dismissed on these grounds. The sealed Court

records show that Logan would also be immune from suit under quasi-judicial immunity.

7 The Court makes no determination regarding the availability of Bivens relief under the

facts alleged and constitutional violations claimed.

Birth Certificate, which he sought to file as Exhibit B to his motion,8 pursuant

to Rule 5.2 of the Federal Rules of Civil Procedure. [Doc. 4-1 at 2; Doc. 4 at

1]. Plaintiff states that justice would be served by protecting his personal

identifying information. [Id.]. Rule 5.2(d) allows the Court to order that a

document containing certain personal identifying information identified in

Rule 5.2(a), including an individual’s full birthdate, to be filed under seal

without redaction. Fed. R. Civ. P. 5.2(a), (d). The Court, therefore, will grant

Plaintiff’s motion and order that Docket No. 2, which contains Plaintiff’s full

birthdate, remain under seal.

Plaintiff also moves the Court to appoint a U.S. Marshal to effect

service in this matter. [Doc. 11]. The Court will deny this motion as moot.

V. CONCLUSION

For the foregoing reasons, the Court finds that Plaintiff’s Complaint

fails initial review and will be dismissed without prejudice in accordance with

the terms of this Order.

ORDER

IT IS, THEREFORE, ORDERED that Plaintiff’s Complaint fails initial

review under 28 U.S.C. §§ 1915A(b)(1) and 1915(e)(2)(B) for Plaintiff’s

8 The Clerk inadvertently filed Exhibit B as a separate, sealed docket entry unrelated to

the instant motion. [See Doc. 2; see also Doc. 1-4].

failure to state a claim for relief and shall be DISMISSED WITHOUT

PREJUDICE in accordance with and as limited by the terms of this Order.

IT IS FURTHER ORDERED that Plaintiffs motion [Doc. 4] is

GRANTED and Docket No. 2 shall remain under seal.

IT IS FURTHER ORDERED that Plaintiffs motion [Doc. 11] is

DENIED.

The Clerk is respectfully instructed to terminate these proceedings.

IT 1S SO ORDERED. Signed: January 23, 2023

Se ee

Chief United States District Judge AS

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