Cohen v. Mukasey

UNITED STATES DISTRICT COURT FILED FOR THE DISTRICT OF COLUMBIA FEB 2 4 2011

Clerk, U.S. District & Bankruptcy Solomon Ben-Tov Cohen, ) Courts for the District of Columbia

) Plaintiff, )

) v. )

)

Civil Action No. 11 0428 )

Michael B. Mukasey, et al., )

) Defendants. )

MEMORANDUM OPINION

This matter is before the Court on its initial review of plaintiff s pro se complaint and application to proceed in forma pauperis. The application will be granted and the case will be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B). Under that statute, the Court is required to dismiss a case "at any time" it determines that the complaint fails to state a claim upon which relief can be granted or seeks monetary relief from an immune defendant.

Plaintiff is an immigration detainee at a facility in Aurora, Colorado. He sues former Attorney General Michael Mukasey and Assistant Attorney General Tony West under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Plaintiff alleges that Mukasey "returned a false Answer" in response to his habeas corpus petition filed in the United States District Court for the District of Colorado, Compi. at 2,6-7, and he faults West for filing a motion in the United States Court of Appeals for the Tenth Circuit to dismiss his appeal as moot, which was granted. Id at 11-12. Plaintiff seeks $6 million in monetary damages from each defendant. !d. at 19.

This Court has a "duty ... to stop insubstantial Bivens actions in their tracks and get rid of them." Simpkins v. District of Columbia Government, 108 F.3d 366, 370 (D.C. Cir. 1997) (citations omitted). A federal official may be held personally liable under Bivens only for unconstitutional conduct in which he was personally and directly involved. Cameron v. Thornburgh, 983 F.2d 253,258 (D.C. Cir. 1993). Plaintiff has stated no facts to support a claim against Mukasey in his personal capacity, and it is clear from the complaint attachments that Mukasey did not personally file any documents. As for the claims against West, a prosecuting attorney is absolutely immune from a lawsuit predicated on conduct, as alleged here, that falls within the scope of his prosecutorial duties. See Atherton v. District of Columbia Office of Mayor, 567 F.3d 672,686-687 (D.C. Cir. 2009). A separate Order of dismissal accompanies this Memorandum Opinion.

Datt:::£y ~, 2011