David Rodriguez v. Vernon Lewis , 427 F. App'x 352 ( 2011 )


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  •      Case: 10-20484 Document: 00511498780 Page: 1 Date Filed: 06/06/2011
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    June 6, 2011
    No. 10-20484
    Summary Calendar                         Lyle W. Cayce
    Clerk
    DAVID RODRIGUEZ,
    Plaintiff-Appellant
    v.
    VERNON L. LEWIS, Assistant United States Attorney; ABRAN MARTINEZ,
    Assistant United States Attorney,
    Defendants-Appellees
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. 4:09-CV-3235
    Before JONES, Chief Judge, and JOLLY and SOUTHWICK, Circuit Judges.
    PER CURIAM:*
    David Rodriguez, federal prisoner # 56264-179, appeals the district court’s
    dismissal of his civil rights complaint, which he filed pursuant to Bivens v. Six
    Unknown Agents of the Federal Bureau of Narcotics, 
    403 U.S. 388
     (1971), for
    failure to state a claim upon which relief can be granted pursuant to
    Rule 12(b)(6) of the Federal Rules of Civil Procedure.                He argues that the
    *
    Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
    R. 47.5.4.
    Case: 10-20484 Document: 00511498780 Page: 2 Date Filed: 06/06/2011
    No. 10-20484
    defendants are not entitled to absolute immunity and that he is entitled to
    recover punitive damages.
    In reviewing a dismissal for failure to state a claim, we “construe the
    complaint in the light most favorable to the plaintiff and draw all reasonable
    inferences in favor of the plaintiff.”   Elsensohn v. Saint Tammany Parish
    Sheriff’s Office, 
    530 F.3d 368
    , 371-72 (5th Cir. 2008). “[C]onclusory allegations
    or legal conclusions masquerading as factual conclusions will not suffice to
    prevent a motion to dismiss.” Fernandez-Montes v. Allied Pilots Ass’n, 
    987 F.2d 278
    , 284 (5th Cir. 1993).
    A prosecutor is absolutely immune from suit for any acts taken within the
    scope of his prosecutorial role. Imbler v. Pachtman, 
    424 U.S. 409
    , 430 (1976)
    (
    42 U.S.C. § 1983
     case involving state prosecutors); Rykers v. Alford, 
    832 F.2d 895
    , 897 (5th Cir. 1987) (Bivens case involving federal prosecutors). Rodriguez
    claims that Assistant United States Attorney Martinez is not entitled to absolute
    immunity because he knowingly breached the plea agreement when he
    vigorously argued in favor of various sentencing enhancements during
    Rodriguez’s sentencing hearing for the sole purpose of retaliating against
    Rodriguez for filing a complaint against him with the State Bar of Texas.
    Because Martinez was acting within the scope of his employment as a prosecutor
    during the sentencing hearing, he enjoys absolute immunity from Bivens
    liability. See Rykers, 
    832 F.2d at 897
    . Martinez remains entitled to absolute
    immunity even if the acted “maliciously, wantonly or negligently.” Morrison v.
    City of Baton Rouge, 
    761 F.2d 242
    , 248 (5th Cir.1985)
    Because Martinez is absolutely immune from suit, he is immune from
    damages as well. See Disraeli v. Rotunda, 
    489 F.3d 628
    , 631 (5th Cir. 2007)
    (noting that absolute immunity denies all remedies to an individual); Hulsey v.
    Owens, 
    63 F.3d 354
    , 356 (5th Cir. 1994) (holding that absolute immunity is
    immunity from suit rather than simply a defense against liability).
    2
    Case: 10-20484 Document: 00511498780 Page: 3 Date Filed: 06/06/2011
    No. 10-20484
    Rodriguez also claims that Assistant United States Attorney Lewis, who
    represented Martinez during the proceedings before the State Bar of Texas, is
    not entitled to absolute immunity because he failed to investigate the possibility
    of retaliation by Martinez, he failed to report Martinez’s retaliatory conduct, and
    he allowed Martinez to violate Rodriguez’s constitutional rights during the
    sentencing hearing. Because Rodriguez has failed to allege that Lewis violated
    his constitutional rights, Rodriguez’s claims against Lewis do not support a
    Bivens action. See Boyd v. Driver, 
    579 F.3d 513
    , 515 (5th Cir. 2009) (dismissing
    claim in Bivens action for malicious prosecution).
    The judgment of the district court is AFFIRMED.
    3