United States District Court, N.D. Ohio, Eastern Division
JEREMY S. DUNCAN, PLAINTIFF,
SAMUEL A. YANNUCCI, et al., DEFENDANTS.
HONORABLE SARA LIOI UNITED STATES DISTRICT JUDGE.
se plaintiff Jeremy S. Duncan (“plaintiff”)
filed this Bivens action against former Assistant
United States Attorney (“AUSA”) Samuel A.
Yannucci (“Yannucci”), former AUSA Herbert J.
Villa (“Villa”), AUSA Robert E. Bulford
(“Bulford”), FBI Special Agent (“SA”)
Douglas Porrini (“Porrini”), the United States,
the United States Marshal Service, and John/Jane Does
(collectively “defendants”). In the complaint,
plaintiff challenges defendants' conduct during the
course of the criminal investigation into charges against him
and his criminal prosecution. He seeks $ 2, 500, 000.00 in
damages. Defendants seek dismissal of the complaint. (Doc.
No. 4 (Motion to Dismiss [“MTD”].)
7, 2016, plaintiff and eleven others were indicted by a
federal grand jury in the United States District Court for
the Northern District of Ohio for conspiracy to
distribute/possess with intent to distribute 100 kilograms of
marijuana. See United States v. Duncan, No. 5:12 cr
286-10 (N.D. Ohio). SA Porrini conducted the drug trafficking
investigation. As part of that investigation, Porrini
obtained a Title III Order authorizing the interception of
wire communications, including plaintiff's cell phones.
The investigation led to the indictment of plaintiff and
eleven other individuals on federal drug trafficking charges.
Yannucci, Villa and Bulford were the AUSAs assigned to
prosecute the criminal case. Plaintiff filed a motion to
suppress the intercepted phone calls, but the court denied
the motion. Plaintiff pleaded guilty to the charges on March
27, 2013. He appealed the denial of his motion to suppress,
and the Sixth Circuit Court of Appeals affirmed his
conviction. See United States v. Wright, 635
Fed.Appx. 162 (6th Cir. 2015).
complaint is very brief. It appears that he is challenging
the Title III Application, complaining that defendants used
boilerplate language describing drug trafficking to obtain
the order permitting the interception of his cell phone
communications. Plaintiff indicates defendants intercepted a
conversation between plaintiff and one of his codefendants,
Dante Branch, urging that the two meet. Law enforcement then
intercepted a conversation between Branch and another person,
suggesting plaintiff had dropped off a multi-pound quantity
of marijuana. Another intercepted conversation suggested
Branch was expecting an additional shipment from plaintiff
arriving in Akron, Ohio from California in March 2012. On
March 29, 2012, surveillance units observed Branch and
plaintiff meeting in Akron, Ohio. Plaintiff claims that
“based on the above chronology of factors” the
defendants conspired and agreed to violate his constitutional
right for a meaningful opportunity to seek redress of his
grievances before the court. (Doc. No. 1 (Complaint
[“Compl.”]) at 3.) He also alleges that the
indictment against him was false. (Id.)
filed a motion to dismiss the present action pursuant to
Federal Civil Procedure Rule 12(b)(6). They claim: (1)
plaintiff's complaint is barred by Heck v.
Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383
(1994); (2) the AUSA defendants are entitled to absolute
immunity from damages; (3) plaintiff failed to state a claim
for relief against Porrini and Bulford; and (4) Porrini and
Bulford are entitled to qualified immunity.
Standard of Review
complaint must contain “a short and plain statement of
the claim showing that the pleader is entitled to relief[,
]” Fed.R.Civ.P. 8(a)(2), in order to “give the
defendant fair notice of what the plaintiff's claim is
and the grounds upon which it rests.” Conley v.
Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80
(1957). Although this pleading standard does not require
great detail, the factual allegations in the complaint
“must be enough to raise a right to relief above the
speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d
929 (2007) (citing authorities). In other words, “Rule
8(a)(2) still requires a ‘showing, ' rather than a
blanket assertion, of entitlement to relief.”
Id. at 556 n. 3 (criticizing the Twombly
dissent's assertion that the pleading standard of Rule 8
“does not require, or even invite, the pleading of
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.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct.
1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550
U.S. at 570, 127 S.Ct. 1955). “While legal conclusions
can provide the framework of a complaint, they must be
supported by factual allegations. When there are well-pleaded
factual allegations, a court should assume their veracity and
then determine whether they plausibly give rise to an
entitlement to relief.” Id. at 679.
entertaining a Rule 12(b)(6) motion, the Court may consider
documents that are referred to in the pleadings, and are
integral to the claims without converting the motion to one
for summary judgment. See Bassett v. Nat'l Collegiate
Athletic Ass'n, 528 F.3d 426, 430 (6th Cir. 2008)
(citation omitted). A court may also consider all matters
over which it may take judicial notice. See New Eng.
Health Care Emp. Pension Fund v. Ernst & Young, LLP,
336 F.3d 495, 501 (6th Cir. 2003) (citations omitted);
see also Fed. R. Evid. 201(b) (providing that
“[a] court make take judicial notice, on its own”
of a “(1) fact that is not subject to reasonable
dispute because it is generally known within the trial
court's jurisdiction; or (2) can accurately and readily
be determined from sources whose accuracy cannot be
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 civil rights 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; Heck,
512 U.S. at 486. A claim for damages bearing that
relationship to a conviction or sentence that has not been so
invalidated is not cognizable in a civil rights action.
Therefore, when a prisoner seeks damages in a civil rights
suit, the 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. If,
however, the Court determines that the plaintiff's
action, even if successful, will not demonstrate the
invalidity of any outstanding criminal judgment against him,
the action should be allowed to proceed, in the absence of
some other bar to the suit.
case, plaintiff challenges the reasonableness of the Title
III Warrant, and he further contends the information received
by the wiretap was insufficient to proceed with an
indictment. If his claims were found to have merit, they
would call into question the validity of his conviction.
See generally Schilling v. White, 58 F.3d 1081, 1086
(6th Cir. 1995). Therefore, if he is to proceed with this
action, he must also demonstrate that his conviction was
called into question by an appellate court or by the issuance
of a writ of habeas corpus. To the contrary, his conviction
was upheld by the Sixth Circuit and there is no suggestion it
was overturned by a federal habeas corpus decision. See,
e.g., Chapman v. Lawson, 89 F.Supp.3d 959, 965 (S.D.
Ohio 2015) (Section 1983 action alleging that Title III
wiretap warrants were not supported by probable cause was
barred by Heck, supra) (citations omitted).
even if this case were not barred by Heck, Yannucci,
Bulford, and Villa would be absolutely immune from suit for
damages. Prosecutors are entitled to absolute immunity from
damages for initiating a prosecution and in presenting the
state's case. See Imbler v. Pachtman, 424 U.S.
409, 431, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976); Pusey v.
Youngstown, 11 F.3d 652, 658 (6th Cir. 1993) (citations
omitted). A prosecutor must exercise his or her best
professional judgment both in deciding which suits to bring
and in conducting them in court. Skinner v.
Govorchin, 463 F.3d 518, 525 (6th Cir. 2006) (citations
omitted). If the prosecutor is constrained in making every
decision by the potential consequences of personal liability
in a suit for damages his ability to perform his duty is
compromised. Id. The likelihood of the filing of
such suits is considerable because a defendant often will
transform his resentment toward prosecution into the
attribution of improper and malicious actions to the
prosecutor. Imbler, 424 U.S. at 424-25;
Skinner, 463 F.3d at 525. Absolute immunity,
therefore, extends to prosecuting attorneys when the actions
in question are those of an advocate. Spurlock v.
Thompson, 330 F.3d 791, 798 (6th Cir. 2003) (citation
omitted). Immunity is ...