Bundy v. Sessions

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
RYAN BUNDY,
Plaintiff,
v. Case No. 1:18-cv-02520 (TNM)
JEFFERSON B. SESSIONS, III, et al.,
Defendants.
MEMORANDUM OPINION
Ryan Bundy and his family participated in an armed confrontation with federal agents in
Bunkerville, Nevada, in 2014. Federal authorities later arrested and indicted Mr. Bundy based
on his involvement in the standoff. A district judge eventually declared a mistrial in that case.
Now, he is suing five high-ranking federal officials for conduct relating to the armed
confrontation and ensuing criminal proceeding. For the reasons that follow, the Defendants’
Motion to Dismiss will be granted, and the Complaint will be dismissed.
I.
As it must at this stage, the Court sets out the facts in the light most favorable to Mr.
Bundy. Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005). According
to the Complaint, state and federal officers “invaded” the Bundy Ranch in Bunkerville, Nevada,
“under the guise of collecting grazing fees, an alleged and unverified debt.” Compl., ECF No. 1
at 4. Carrying a “side-arm,” Mr. Bundy participated in the ensuing standoff between these
officers and his “supporters.” Id. According to the Complaint, Mr. Bundy and his confederates
did not harm or threaten any state or federal officers. Id.
Nonetheless, a federal grand jury later indicted Mr. Bundy on charges related to the
standoff. Id. The district court eventually declared a mistrial based on prosecutorial misconduct.
Id. at 13. 1
Mr. Bundy now sues former Attorneys General Jefferson Sessions, Eric Holder, and
Loretta Lynch; former Federal Bureau of Investigation Director James Comey; and former
Director of the Bureau of Land Management Neil Kornze (collectively “Senior Officials”), for
their alleged parts in the standoff and ensuing prosecution. Mr. Bundy brings six claims:
(1) unconstitutional search and seizure claim against Directors Comey and Kornze under Bivens
v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971); (2)
unconstitutional retaliation claim against the Senior Officials under Bivens; (3) violation of the
Religious Freedom Restoration Act (“RFRA”) claim against the Senior Officials; (4)
unconstitutional use of force claim against Directors Comey and Kornze under 28 U.S.C. § 1983;
(5) unconstitutional retaliation claim against the Senior Officials under Section 1983; and
(6) unconstitutional malicious prosecution claim against the Senior Officials under Section 1983.
See generally Compl. at 13–20.
II.
To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), 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
1
The United States appealed that order of dismissal, and that appeal is still pending. See United
States v. Bundy, No. 18-10287 (9th Cir.).
2
consistent with” a defendant’s liability “stops short of the line between possibility and
plausibility.” Twombly, 550 U.S. at 545–46. Thus, a court does 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.
Courts must construe a complaint in the light most favorable to the plaintiff and accept as
true all reasonable factual inferences drawn from well-pleaded allegations. See In re United
Mine Workers of Am. Emp. Benefit Plans Litig., 854 F. Supp. 914, 915 (D.D.C. 1994).
III.
A.
Mr. Bundy’s many claims fail for many reasons. The Senior Officials first argue that
Counts One and Four—based on conduct during the standoff—are barred by the statute of
limitations. Defs.’ Mot. to Dismiss (“Defs.’ Mem.”), ECF No. 10 at 5. The Court agrees.
For both Section 1983 and Bivens actions, federal courts look to local law to determine
the applicable statute of limitations. See Jones v. Kirchner, 835 F.3d 74, 80 (D.C. Cir. 2016).
When plaintiffs bring these actions in this District, federal courts apply D.C.’s three-year statute
of limitations for personal injury actions. See id. (applying D.C. statute of limitations in a
Section 1983 action brought here); Doe v. U.S. Dep’t of Justice, 753 F.2d 1092, 1114 (D.C. Cir.
1985) (applying D.C. statute of limitations in a Bivens action brought here).
The Senior Officials argue that Mr. Bundy had three years from April 2014 to bring his
claims arising out of the alleged standoff. Defs.’ Mem. at 8. But he did not file his Complaint
until October 31, 2018. See Compl. In his one-paragraph response, Mr. Bundy does not
challenge the applicability of the three-year statute of limitations. See Pl.’s Opp. to Mot. to
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Dismiss (“Pl.’s Mem.”) at 6–7. Rather, he argues that the limitations period should be tolled
because he was incarcerated from about January 2016 until January 2018. Pl.’s Mem. at 6.
This issue is governed by D.C. Code § 12–302(a)(3), which provides that when a person
is imprisoned “at the time the right of action accrues,” then he “may bring action within the time
limit after the disability is removed.” But to toll the limitations period, a plaintiff’s action must
accrue during his imprisonment. D.C. Code § 12–302(a)(3). Mr. Bundy does not claim that he
was imprisoned when his unlawful search and seizure and excessive force claims accrued. 2 So
D.C. Code § 12–302(a)(3) does not save these claims.
Next, Mr. Bundy argues that the Court should apply the doctrine of equitable tolling.
Pl.’s Mem. at 6. But generally, “District of Columbia law does not recognize an equitable tolling
exception to the statute of limitations.” Johnson v. Marcheta Inv’rs Ltd. P’ship, 711 A.2d 109,
112 (D.C. 1998). As the D.C. Court of Appeals has explained, “[r]ejection of the application of
equitable tolling on a case-by-case basis . . . rests on the belief that where the legislature has
provided no savings statute, courts would exceed their prescribed role by providing a remedy
where the legislature has determined that none should lie.” Sayyad v. Fawzi, 674 A.2d 905, 906
(D.C. 1996). Mr. Bundy does not explain why his claims can escape this general rule.
In any event, equitable tolling is available to a party “only if he shows (1) that he has
been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his
way and prevented timely filing.” Menominee Indian Tribe of Wis. v. United States, 764 F.3d
51, 58 (D.C. Cir. 2014) (cleaned up). Mr. Bundy has not alleged—much less shown—that he
has diligently pursued this case. Imprisonment alone is not the sort of “extraordinary
2
Mr. Bundy also does not dispute that these claims accrued at the time of standoff. See
generally Pl.’s Mem. at 6–7.
4
circumstance” that merits equitable tolling. See Lozano v. Montoya Alvarez, 572 U.S. 1, 10
(2014) (requiring that a “litigant has pursued his rights diligently but some extraordinary
circumstance prevents him from bringing a timely action”).
The Court is particularly reluctant to apply equitable tolling here. Consider the negative-
implication canon: the “expression of one thing implies the exclusion of others (expressio unius
est exclusio alterius).” Antonin Scalia & Bryan A. Gamer, Reading Law: The Interpretation of
Legal Texts 107 (2012). “If a sign at the entrance to a zoo says ‘come see the elephant, lion,
hippo, and giraffe,’ and a temporary sign is added saying ‘the giraffe is sick,’ you would
reasonably assume that the others are in good health.” N.L.R.B. v. SW Gen., Inc., 137 S. Ct. 929,
940 (2017). The District has provided—by statute—for tolling based on imprisonment in some
instances. But it decided not to toll the statute of limitations when a right of action accrues
before a plaintiff is incarcerated. Because the District has expressly provided for tolling when a
plaintiff is imprisoned, the D.C. Council presumably intended that tolling based on imprisonment
in other circumstances is unavailable. The Court will not second-guess this legislative choice by
providing Mr. Bundy a remedy here.
Thus, the Court will dismiss Counts One and Four 3 as untimely.
3
In any event, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S.
at 678. Count Four falls short of this test. It is implausible to suggest that Directors Comey and
Kornze—whom the Complaint alleges were in this District at the time—were involved in the
minute-by-minute decisions made by agents in Nevada when confronted by armed Bundy
supporters. Accord Argueta v. ICE, 643 F.3d 60, 75–77 (3d Cir. 2011) (rejecting a claim that
high-ranking federal officials directly participated in allegedly unlawful raids); Farmer v.
Mortisugu, 163 F.3d 610, 616 (D.C. Cir. 1998) (rejecting an argument that would expose the
Medical Director of Bureau of Prisons to liability “for all alleged mistakes in the individual
diagnoses of every inmate in the BOP system, simply by virtue of an inmate’s complaint”).
Determining whether a complaint states a plausible claim for relief is “a context-specific task
that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal,
5
B.
Mr. Bundy brings three claims under 42 U.S.C. § 1983: an excessive force claim, a
retaliation claim, and a malicious prosecution claim. See generally Compl. at 16–20. The
Senior Officials argue that these counts should be dismissed because Section 1983 is
inapplicable to federal officers. Defs.’ Mem. at 7.
“Section 1983 does not apply to federal officials acting under color of federal law.”
Settles v. U.S. Parole Comm’n, 429 F.3d 1098, 1104 (D.C. Cir. 2005). But the issue here is
federal versus state law, not federal versus state actor. “The traditional definition of acting under
color of state law requires that the defendant in a Section 1983 action have exercised power
‘possessed by virtue of state law and made possible only because the wrongdoer is clothed with
the authority of state law.’” West v. Atkins, 487 U.S. 42, 49 (1988).
There is no claim that the Senior Officials possessed authority through the laws of
Nevada or that they were somehow “clothed with the authority of” Nevada law despite their
employment by the United States. Rather, the Complaint alleges only that these Senior Officials
were acting under the color of federal law. At all times, they were “clothed with the authority”
of federal, not state, law. West, 487 U.S. at 49.
Mr. Bundy accuses the Senior Officials of directing state officers to arrest him and
federal prosecutors to prosecute him for improper reasons. See generally Compl. at 18–20. But
these allegations are based only on a federal prosecution. Mr. Bundy does not explain how the
556 U.S. at 679. Perhaps it is plausible that the agents who made the decisions and took the
actions that Mr. Bundy complains of did so at the direction of their immediate superiors. But it is
implausible that the Directors—who supervised large federal agencies and who were hundreds of
miles away at the time of the events—were somehow personally involved in real-time decisions
of individual officers, such as particular uses of force. The Complaint’s repeated allegations that
the Directors were in this District at the time may have staved off a motion to transfer, but they
invited an implausibility claim as to these Counts.
6
Senior Officials could act under the color of state law in bringing a federal prosecution. In fact,
the D.C. Circuit has made clear that Section 1983 “does not apply to officials acting under color
of federal law, such as a federal prosecutor acting within the scope of her duties.” Jones v.
Horne, 634 F.3d 588, 594 n.2 (D.C. Cir. 2011) (emphasis added).
In response, Mr. Bundy claims that he is suing the Senior Officials as co-conspirators
with state officers under Section 1983. Pl.’s Mem. at 4–5. He argues that because the Complaint
avers that the Senior Officials “acting in concert, directed and ordered local Nevada state
officials,” he has alleged that the Senior Officials themselves were “acting under the color of
state law.” Id. at 4. But he has it exactly backwards. In his telling, the Senior Officials used
their federal authority to order state officers to execute their plans. So perhaps one could argue
that the state officers acted under the color of federal law during the standoff. But nowhere does
he allege that the Senior Officials had or used any authority granted by Nevada law. Nor would
it be plausible to so allege.
A Section 1983 action requires that a defendant exercise power “made possible only
because the wrongdoer is clothed with the authority of state law.” West, 487 U.S. at 49. That is
not the allegation here. So the Court will dismiss Counts Five and Six, and this reasoning is an
alternative ground for dismissing Count Four as well.
C.
The Senior Officials urge the Court to dismiss all claims against Attorneys General
Sessions, Lynch, and Holder based on absolute prosecutorial immunity. Defs.’ Mem. at 9–11.
In response, Mr. Bundy argues that absolute immunity should not apply because the Complaint
alleges that the Attorneys General prosecuted him without probable cause and knowingly relied
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on false allegations. Pl.’s Mem. at 7. 4 Mr. Bundy does not argue that he is challenging
administrative or investigative conduct by the Attorneys General. Cf. Burns v. Reed, 500 U.S.
478, 494 (1991) (explaining that absolute immunity does not extend to “every litigation-inducing
conduct”). He challenges only the decision to prosecute.
Federal prosecutors enjoy absolute immunity for “initiating a prosecution” and
“presenting the [government’s] case.” Imbler v. Pachtman, 424 U.S. 409, 431 (1976). This
immunity extends to activities “intimately associated with the judicial phase of the criminal
process.” Id. at 430–31; see also Buckley v. Fitzsimmons, 509 U.S. 259, 270–71 (1993)
(discussing the line that divides activities of a prosecutor that are entitled to absolute immunity
from those entitled to qualified immunity).
The Complaint alleges that “[t]he prosecution against [Mr. Bundy] for allegations known
to be false were malicious, shocking, and objectively unreasonable in light of the circumstances.”
Compl. at 20. According to Mr. Bundy, the Attorneys General prosecuted him “in retaliation for
his lawful and constitutional exercise of his First Amendment and other rights.” Pl.’s Mem. at 8.
Prosecutorial immunity insulates the Attorneys General from liability for the
“unquestionably advocatory decision” to prosecute Mr. Bundy. Moore v. Valder, 65 F.3d 189,
194 (D.C. Cir. 1995). In Imbler, the plaintiff alleged that the prosecutor knowingly used false
testimony and suppressed material exculpatory evidence at trial. 424 U.S. at 413. Even so, the
Supreme Court upheld the lower courts’ rulings that the prosecutor was immune from potential
liability for the alleged misconduct. Id. at 427. Even taking all of Mr. Bundy’s allegations of
misconduct as true, absolute immunity bars his claims against the Attorneys General.
4
The Senior Officials argue that absolute prosecutorial immunity can be asserted in cases
brought under Bivens, Section 1983, and RFRA. See Defs.’ Mem. at 11. Mr. Bundy does not
challenge this assertion. See generally Pl.’s Mem. at 6–8.
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For this reason, the Court will dismiss Counts Two and Three against Attorneys General
Sessions, Lynch, and Holder. And this reasoning is an alternative ground for dismissing Counts
Five and Six against these defendants as well. 5
D.
The Senior Officials also insist that all claims against Directors Comey and Kornze
should be dismissed because the Complaint does not sufficiently allege their personal
participation. Defs.’ Mem. at 12. The Supreme Court’s seminal decision Ashcroft v. Iqbal
decides this question.
In Iqbal, a Pakistani Muslim sued high-level federal officials, including the former
Attorney General and Director of the FBI, alleging that he had been deprived of various
constitutional rights while in post-9/11 pre-trial detention. 556 U.S. at 666. The Court dismissed
the complaint, holding that “[b]ecause vicarious liability is inapplicable to Bivens and Section
1983 suits, a plaintiff must plead that each Government-official defendant, through the official’s
own individual actions, has violated the Constitution.” Id. at 676. The Court emphasized that
“each Government official, his or her title notwithstanding, is only liable for his or her own
misconduct.” Id. at 677. So too here.
5
The Complaint alleges that Attorney General Sessions “condoned” the decision to prosecute by
appealing the dismissal of the criminal case. Compl. ¶ 11. But as discussed above, General
Sessions enjoys absolute prosecutorial immunity for such an “unquestionably advocatory”
decision. See Moore, 65 F.3d at 194.
As for the rest of the allegations, the Court finds that Mr. Bundy’s claims against Attorneys
General Sessions and Holder are implausible because they were even not in office when federal
authorities indicted Mr. Bundy. Common sense requires the Court to reject allegations that these
officials, who did not work for the Department of Justice at the time, were somehow personally
involved in the decision to bring federal charges, in retaliation or otherwise. Cf. Iqbal, 556 U.S.
at 679 (determining whether a complaint states a plausible claim for relief is “a context-specific
task that requires the reviewing court to draw on its judicial experience and common sense.”).
9
Mr. Bundy’s Complaint does not allege that Directors Comey and Kornze participated in
the decision to bring a criminal indictment against Mr. Bundy. In fact, the Complaint alleges
that General Lynch “personally caused and instituted the indictment.” Compl. at 11. And in his
briefing, Mr. Bundy offers no argument that Directors Comey and Kornze were personally
involved in the decision to prosecute Mr. Bundy. See generally Pl.’s Mem. at 8–9.
Mr. Bundy also fails to allege that they personally participated in the unlawful conduct
during the standoff. Mr. Bundy’s Complaint has no factual allegations about the Directors’
involvement in the actions leading to this lawsuit, such as the use of force or the seizure of his
cattle. In his response to the Senior Officials’ Motion to Dismiss, Mr. Bundy points only to three
paragraphs in the Complaint:
15. Under the guise of collecting grazing fees, an alleged and unverified debt, the
federal government – BLM and FBI – upon orders from Defendants Comey,
Kornze and Holder from Washington D.C. in this district, invaded the Bundy
Ranch in April of 2014 and violently assaulted and extorted [Mr. Bundy] and his
family members and killed his family’s cattle.
25. Defendant Kornze directly and personally used his agency, from Washington
D.C. in this district, to violate the constitutional and other rights of [Mr. Bundy].
27. Defendant Comey directly, willfully, and personally used his agency, from
Washington D.C. in this district, to violate the constitutional and other rights of
[Mr. Bundy].
Conclusory allegations such as these are insufficient to state a claim against the Directors. See
Iqbal, 556 U.S. at 686 (“[T]he Federal Rules do not require courts to credit a complaint’s
conclusory statements without reference to its factual context.”). For instance, the Iqbal Court
rejected a pleading that a high-level official “‘knew of, condoned, and willfully and maliciously
agreed to subject him’ to harsh conditions of confinement ‘as a matter of policy, solely on
10
account of his religion, race, and/or national origin and for no legitimate penological interest’” as
too conclusory. Iqbal, 556 U.S. at 680.
Although the Directors allegedly “directed” other officers, who are not before this Court,
no factual assertions support this allegation, and conclusory allegations are insufficient on their
own to defeat a motion to dismiss. See Chavez v. United States, 683 F.3d 1102, 1110 (9th Cir.
2012) (discounting the “wholly conclusory allegation that the supervisory defendants ‘personally
reviewed and, thus, knowingly ordered, directed, sanctioned or permitted’” traffic stops that
allegedly violated the Fourth Amendment); cf. Morris v. U.S. Sentencing Comm’n, 62 F. Supp.
3d 67, 75 (D.D.C. 2014), aff’d, 696 F. App’x 515 (D.C. Cir. 2017) (“Consequently, high-level
officials . . . typically are not subject to Bivens liability since they do not routinely participate
personally in decisions about a particular individual at a particular location.”).
As to Paragraphs 25 and 27, the Complaint offers no factual support to support the bald
assertion that Directors Kornze and Comey “used their agenc[ies]” to violate Mr. Bundy’s
constitutional rights. Just as it was not enough for the Iqbal plaintiff to allege that officials
“agreed to subject” him to unconstitutional confinement, see 556 U.S. at 680, it is not enough
here for Mr. Bundy to allege that an official “used his agency . . . to violate” his constitutional
rights. Compl. at 6. These are “naked assertion[s]” devoid of “further factual enhancement.”
Iqbal, 556 U.S. at 678 (explaining that Rule 8 “does not require detailed factual allegations, but it
demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation” (cleaned
up)).
In sum, Mr. Bundy’s conclusory allegations that Directors Comey and Kornze engaged in
some sort of conspiracy, “directing” other officers to violate Mr. Bundy’s constitutional rights
are unsupported by the facts alleged in the Complaint. See, e.g., Gorbey v. United States, 309 F.
11
App’x 425 (D.C. Cir. 2009) (per curiam) (affirming dismissal of complaint containing “only
conclusory and unsubstantiated allegations” of unlawful conduct). Indeed, the Senior Officials
are correct that if such allegations sufficed, high-ranking federal officials would find themselves
in litigation every day around the country.
Because the Complaint fails to plausibly allege that Directors Comey or Kornze
personally participated in the alleged misconduct, the Court will dismiss Counts Two and Three
against them. This reasoning serves as alternative grounds for also dismissing Counts One, Four,
Five, and Six against them.
IV.
For the all these reasons, the Defendants’ Motion to Dismiss will be granted, and the
Plaintiff’s Complaint will be dismissed. A separate order will issue.
2019.06.10
15:34:10 -04'00'
Dated: June 10, 2019 TREVOR N. McFADDEN, U.S.D.J.
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