UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_________________________________ ) GARY EMERSON WEST, ) ) Plaintiff, ) ) v. ) Civil Action No. 18-2443 (RBW) ) ELLEN SEGAL HUVELLE et al., ) ) Defendants. ) __________________________________ )

MEMORANDUM OPINION

The plaintiff, Gary Emerson West, brought this action pro se against United States

District Judge Ellen Segal Huvelle for actions she took while presiding over his criminal

proceedings in this judicial district. See Complaint (“Compl.”) at 1–2, ECF No. 1; United States

of America v. West, No. 1:01-cr-00168-ESH-1 (D.D.C.) (“West I” or “Crim. No. 01-168”). The

plaintiff has also sued two Assistant United States Attorneys (“AUSA”), Ronald L. Walutes, Jr.,

and Laura Ingersoll, who represented the government during his prosecution, and one of his

former criminal defense attorneys, Gene Johnson. See Compl. at 1 (listing parties).

Pending before the Court is the Motion to Dismiss by Federal Defendants Huvelle,

Walutes and Ingersoll (“Defs.’ Mot.”), ECF No. 10. On June 3, 2019, when the plaintiff’s

opposition to the foregoing motion was required to be filed, the plaintiff submitted a document

captioned: “Memorandum of Points and Authorities in Support of Motion to Proceed with the

Jury Trial as Schedules,” ECF No. 13, which the Court construes as the plaintiff’s opposition

(“Pl.’s Opp’n”) to the motion to dismiss.

1 Upon careful consideration of the parties’ submissions, and for the reasons that follow,

the Court will (1) grant the federal defendants’ motion to dismiss, (2) decline supplemental

jurisdiction over any local law claim against Attorney Johnson, and (3) dismiss this case.

I. BACKGROUND

A. The Criminal Proceedings

In West I, the plaintiff pleaded guilty on January 9, 2002, to four counts of Armed Bank

Robbery,

(a)(d) (2000); one count of Use of a Firearm During and in Relation

to a Crime of Violence,

(c) (2000); and one count of False Statements,

(a)(2), and his sentencing was scheduled for April 8, 2002. See Crim. Case No. 01-168,

ECF No. 160 (Judgment in a Criminal Case filed July 15, 2002 (“Judgment”)). Shortly

thereafter, the plaintiff sought to withdraw his guilty plea in a document that Judge Huvelle

allowed to be filed on January 17, 2002, as a motion to withdraw his plea of guilty. See

ECF

Nos. 112, 116; Compl. ¶ 1. According to the federal defendants, the plaintiff “asserted,” as

grounds to withdraw his guilty plea, among other things, that “he had been deceived by . . .

Johnson, who ‘sold’ him on the idea of pleading [guilty] and then working out a deal with the

prosecutor that would reduce his sentence to the two-to-five-year range.” Memorandum of

Points and Authorities in Support of Motion to Dismiss by Defendants Huvelle, Walutes and

Ingersoll (“Defs.’ Mem.”) at 2, ECF No. 10-1. On January 23, 2002, Johnson filed a motion to

withdraw as counsel for the plaintiff, Crim. Case No. 01-168, ECF No. 113, which was granted

on January 24, 2002, ECF No. 114. In granting Johnson’s motion, Judge Huvelle “assumed that

Mr. West [would] retain [another] counsel to represent him in this matter since he previously had

private representation.”

2 The government filed its opposition to the plaintiff’s motion to withdraw the guilty plea

on February 22, 2002, ECF No. 117, and on March 8, 2002, private attorney Joanne Maria Vasco

entered her appearance to represent the plaintiff.

ECF No. 118; see case caption (designating

Vasco as “Retained”). However, on March 20, 2002, Judge Huvelle granted Vasco’s motion to

withdraw as the plaintiff’s counsel.

ECF No. 125. Meanwhile, on March 5, 2002, Judge

Huvelle scheduled a hearing on the plaintiff’s motion to withdraw his guilty plea for June 3,

2002. On May 3, 2002, Jensen Egerton Barber was then appointed to represent the plaintiff.

ECF No. 129; see case caption (designating Barber as a “CJA Appointment”).

The criminal case docket indicates that Judge Huvelle conducted a hearing on the

plaintiff’s motion to withdraw his guilty plea on June 3, 2002, and June 4, 2002, denied the

motion “for reasons stated on the record,” referred the plaintiff to the probation office for the

preparation of a presentence investigation report, and scheduled sentencing for June 27, 2002.

On June 27, 2002, the sentencing hearing was converted to a status hearing, during which Judge

Huvelle granted Attorney Barber’s oral motion to withdraw as the plaintiff’s counsel, permitted

retained counsel Larry Brown to represent the plaintiff pro hac vice, and rescheduled the

sentencing for July 9, 2002. See case caption (designating Brown as “Retained”).

On July 9, 2002, Judge Huvelle denied the plaintiff’s oral motion to continue the

sentencing hearing and to withdraw his guilty plea. She then sentenced the plaintiff to an

aggregate prison sentence of 250 months (or nearly 21 years) followed by a term of supervised

release totaling eight years. See Crim. Case No. 01-168 (July 9, 2002 Docket Entry). In

addition, the plaintiff was ordered to pay restitution totaling $405,224.00. Id.; see also Judgment

at 5.

3 B. The Post-Conviction Proceedings

On July 19, 2002, the plaintiff noticed his appeal of the order denying his motion to

withdraw his guilty plea. Crim. Case No. 01-168, ECF No. 156. In 2003, the District of

Columbia Circuit (“D.C. Circuit”) issued the following ruling:

It is ORDERED AND ADJUDGED that the judgment of conviction entered on January 9, 2002 be affirmed. Because the plea colloquy met the standards of Fed. R. Civ. P. 11, and because appellant has failed to advance a colorable claim of innocence, the district court did not abuse its discretion in denying appellant's motion to withdraw his plea.

United States v. West, No. 02-3070,

, at *1 (D.C. Cir. Feb. 14, 2003) (per

curiam) (citation omitted). In July 2003, the plaintiff filed a motion pursuant to

(2000) to vacate, set aside or correct his sentence, which Judge Huvelle denied on April

30, 2004. See Crim. Case No. 01-168, ECF Nos. 228, 284; see also

ECF No. 293 (Order

denying certificate of appealability). In 2011, the D.C. Circuit denied the plaintiff “authorization

to file a second or successive § 2255 motion . . . to vacate the coerced plea agreement and

resulting judgment under authority of 28 U.S.C. § 2255” because he had “not shown that the

motion contains either newly discovered evidence or a new rule of constitutional law, made

retroactive to cases on collateral review by the Supreme Court, that was previously unavailable,

so as to meet the standards set out in

(h).” In re: Gary Emerson West, No. 11-

3036 (D.C. Cir. July 18, 2011), Crim. Case No. 01-168, ECF No. 361.

In July 2016, however, the D.C. Circuit granted the plaintiff’s “petition for leave to file a

second or successive motion pursuant to 28 U.S.C. § 2255” to challenge his sentence in light of

Johnson v. United States, __ U.S. __,

(2015), but it “express[ed] no opinion as to

the merits of petitioner’s claim.” In re: Gary Emerson West, No. 16-3057 (D.C. Cir. July 1,

2016) (citing 28 U.S.C. 2244(b)), Crim. Case No. 01-168, ECF No. 391. On September 11,

4 2019, Research & Writing Attorney Benjamin Flick of the Federal Public Defender’s Office

entered his appearance on the plaintiff’s behalf in his criminal case,

ECF No. 397, and the

plaintiff’s section § 2255 motion is pending resolution by the court.

C. The Plaintiff’s Allegations

In the plaintiff’s Complaint, he alleges the following relevant events. Judge Huvelle

“denied” his “motion to withdraw his plea and moved to sentence” him. Compl. ¶ 3. “On the

day of sentencing[,] the government (Ronald L. Walutes, Jr.) lied and stated that the

government’s witness (Dennis L. Roie) was dead[,] and he showed a death certificate stating that

Mr. Roie had died from multiple gun shots to the head.” Id. (parentheses in original). Judge

Huvelle then “quashed the arrest warrant on Dennis L. Roie because the government proved he

was dead.” Id. ¶ 4. Judge Huvelle “changed her mind” with regard to the plaintiff’s “wire plea

which would have given [him] two years” and instead “gave West 27 years of imprisonment for

the body of Dennis L. Roie.” Id. ¶ 5. Four years later, Roie “was found alive” and Judge

Huvelle sentenced Roie “to 80 months of imprisonment because of his involvement in the

crime.” Id. ¶ 6. She did not, however, “bring West back to correct his sentence even though he

only received as much time as he did because the government lied and presented a fake death

certificate for Dennis L. Roie.” Id. ¶ 7.

As to the remaining defendants, the plaintiff alleges that AUSA Walutes “misled” Judge

Huvelle “and showed her a fake death certificate so that West could receive more time,” Compl.

¶ 8, and that AUSA Ingersoll “took over the [criminal] case and was fully aware that . . . Roie

was alive” but failed “to bring that information” to Judge Huvelle’s attention, id. ¶ 9. The

plaintiff alleges that Attorney Johnson “misled” him “by showing [him] a fake death certificate

with . . . Roie’s name on it and he also lied to [West] and told [him] that [he] would only get 2

5 years’ imprisonment by taking the plea offered to [West]. He lied about meeting [West’s]

Probation Officer Brian McGill and stated that [West’s] probation officer did not know [his]

whereabouts.” Compl. ¶¶ 8–10.

The plaintiff has not provided a separate statement regarding each claim he asserts in his

Complaint. His prayer for relief requests “termination of [his] sentence and a jury trial to sue for

[his] losses.” Compl. at 2.

II. STANDARDS OF REVIEW

A. Motions to Dismiss Under Federal Rule of Civil Procedure 12(b)(1)

Rule 12(b)(1) governs motions to dismiss for lack of subject matter jurisdiction. Such a

motion “presents a threshold challenge to the court’s jurisdiction . . . .” Haase v. Sessions,

(D.C. Cir. 1987); see Grand Lodge Fraternal Order of Police v. Ashcroft,

(D.D.C. 2001) (noting that “a Rule 12(b)(1) motion imposes on the court an

affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority”).

Accordingly, the Court must dismiss a claim if it “lack[s] . . . subject matter jurisdiction[.]” Fed.

R. Civ. P. 12(b)(1).

Under Rule 12(b)(1), “it is to be presumed that a cause lies outside [a federal court’s]

limited jurisdiction,” Kokkonen v. Guardian Life Ins. Co.,

(1994), and the

plaintiff bears the burden of establishing the Court’s jurisdiction by a preponderance of the

evidence, see, e.g., Moore v. Bush,

(D.D.C. 2008). In deciding a motion

to dismiss based upon lack of subject matter jurisdiction, a Court is not limited to the allegations

set forth in the complaint, but “may consider materials outside the pleadings . . . .” Jerome

Stevens Pharms., Inc. v. FDA,

(D.C. Cir. 2005). Because the Court must

ensure its jurisdictional authority, “‘the [p]laintiff’s factual allegations in the complaint . . . will

6 bear closer scrutiny in resolving a 12(b)(1) motion’ than in resolving a 12(b)(6) motion for

failure to state a claim.” Grand Lodge of Fraternal Order of Police, 185 F. Supp. 2d at 13–14

(quoting 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 (2d

ed. 1987) (alteration in original))).

B. Motions to Dismiss Under Federal Rule of Civil Procedure 12(b)(6)

A motion to dismiss under Rule 12(b)(6) tests whether the complaint properly “state[s] a

claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). Rule 8(a) of the Federal

Rules of Civil Procedure requires only that a complaint provide “a short and plain statement of

the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Although

“detailed factual allegations” are not required, Ashcroft v. Iqbal,

(2009)

(quoting Bell Atl. Corp. v. Twombly,

(2007)), a plaintiff must provide “more

than an unadorned, the defendant-unlawfully-harmed-me accusation,”

The “complaint must

contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its

face.’”

(quoting Twombly,

). A claim is facially plausible “when the plaintiff

pleads factual content that allows the court to draw [a] reasonable inference that the defendant is

liable for the misconduct alleged.”

(citing Twombly,

). However, a complaint

alleging “facts that are ‘merely consistent with’ a defendant’s liability . . . ‘stops short of the line

between possibility and plausibility of entitlement to relief.’”

(quoting Twombly,

).

“In evaluating a Rule 12(b)(6) motion, the Court must construe the complaint ‘in favor of

the plaintiff, who must be granted the benefit of all inferences that can be derived from the facts

alleged.’” Hettinga v. United States,

(D.C. Cir. 2012) (quoting Schuler v.

United States,

(D.C. Cir. 1979)). However, conclusory allegations are not

7 entitled to an assumption of truth, and even those allegations pleaded with factual support need

only be accepted insofar as “they plausibly give rise to an entitlement to relief.” Iqbal,

.

C. Pro Se Filings

In applying the framework above, the Court must be mindful of the fact that the plaintiff

is proceeding in this matter pro se. This appreciation is required because the pleadings of pro se

parties are “to be liberally construed, and a pro se complaint, however inartfully pleaded, must

be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v.

Pardus,

(2007) (internal quotation marks and citations omitted). Furthermore,

all factual allegations by a pro se litigant, whether contained in the complaint or other filings in

the matter, should be read together in considering whether to grant a motion to dismiss.

Richardson v. United States,

(D.C. Cir. 1999). Nonetheless, a “pro se

complaint, like any other, must present a claim upon which relief can be granted by the court.”

Crisafi v. Holland,

(D.C. Cir. 1981).

III. ANALYSIS

A. Subject Matter Jurisdiction

This Court lacks jurisdiction “to terminate” the plaintiff’s sentence in this civil case.

Compl. at 2. Such relief is exclusively available through a motion to vacate under

, which states:

[a] prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States . . . or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

(a) (2018). Additionally,

8 [a]n application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.

(e). The plaintiff has not shown that the remedy available to him is inadequate

or ineffective, nor could he plausibly make that claim. As discussed above, the plaintiff has

pursued § 2255 relief in the sentencing court on multiple occasions, and he is currently being

represented in that court on a duly authorized successive motion. Furthermore, “it is well-settled

that a prisoner seeking relief from his conviction or sentence may not bring [a separate] action”

for injunctive relief. Williams v. Hill,

(D.C. Cir. 1996) (per curiam). And,

although the plaintiff does not specifically state that he is seeking injunctive relief, that is

essentially what he is asking the Court to do, by requesting the “termination of [his] sentence.”

Compl. at 2. Accordingly, the plaintiff’s claim for injunctive relief to terminate his sentence is

hereby dismissed for want of jurisdiction.

B. Failure to State a Claim

What remains is the plaintiff’s request “to sue for [his] losses,” Compl. at 2, which the

Court construes as a claim for monetary damages brought under

or Bivens v.

Six Unknown Agents of Federal Bureau of Narcotics,

(1971).

1. Judicial Immunity

The plaintiff does not state the capacity in which he is suing Judge Huvelle. However,

because the plaintiff is challenging actions taken by Judge Huvelle in her capacity as a judicial

officer, the defendants argue that she is entitled to absolute immunity. See Defs.’ Mem. at 9–11.

The Court agrees.

9 The United States Supreme Court states that “[a]s a class, judges have long enjoyed a

comparatively sweeping form of immunity” to protect, among other things, “the finality of

judgments” and “judicial independence by insulating judges from vexatious actions prosecuted

by disgruntled litigants.” Forrester v. White,

(1988). To that end, judges

enjoy absolute immunity from suits based on acts taken in their judicial capacity, so long as they

have jurisdiction over the subject matter. Moore v. Burger,

(D.C. Cir.

1981) (per curiam) (citing cases). Such immunity applies “even if [the judge’s] exercise of

authority is flawed” or erroneous. Stump v. Sparkman,

(1978). For a

dissatisfied litigant, “[s]eeking relief through an appeal to an appellate court is the sole remedy

available . . . to challenge the legality of decisions made by a judge in her judicial capacity.”

Caldwell v. Obama,

(D.D.C. 2013). Therefore, complaints against judges

who have “done nothing more than their duty” have been deemed, at best, “meritless,” Fleming

v. United States,

(D.D.C. 1994), cert. denied

(1995), and at

worst “patently frivolous,” Caldwell v. Kagan,

(D.D.C. 2011); see

Chambers v. Gesell,

(D.D.C. 1988) (finding immunity of the judicial defendant

“a major defect . . . which convinces us that plaintiff’s claim is fundamentally and fatally

flawed”).

The allegations asserted against Judge Huvelle in the Complaint are based solely on the

rulings Judge Huvelle rendered during the plaintiff’s criminal prosecution for committing federal

offenses. It is without question that Judge Huvelle had jurisdiction over the offenses that the

plaintiff was convicted of committing in his criminal case, and the challenged decisions she

made in that case were clearly judicial acts. See United States v. Robinson,

(D.C. Cir. 2009) (the district court’s statements concerning a plea agreement “spoke to a

10 quintessential judicial function”), quoting United States v. Kraus,

(7th Cir.

1998) (“district judge’s assessment of plea agreement in light of facts and Guidelines constituted

‘exactly the kind of active evaluation of the plea agreement that Rule 11 and the cases

interpreting it envision’”) (internal quotation marks and other citation omitted)); see also Miller

v. Marriott Int’l LLC,

(D.D.C. 2019) (stating that judge’s “issuance of an

order . . . is a quintessential judicial act for which [the judge] enjoys absolute immunity”);

Caldwell,

(“The acts of assigning a case, ruling on pretrial matters, and

rendering a decision all fall within a judge’s judicial capacity.”) (citation and internal quotation

marks omitted)); Rockefeller v. U.S. Court of Appeals Office, for Tenth Circuit Judges,

(D.D.C. 2003) (Walton, J.) (“The district judge was clearly acting within his

judicial capacity when, in connection with addressing issues related to the claims raised in the

plaintiff's complaint, the judge, for example, ruled that certain evidence would be excluded . . .,

dismissed a claim for lack of jurisdiction, and disallowed a private claim because it had been

filed under the [False Claims Act]”) (following Forrester v. White, 484 US. 219 (1988)).

Therefore, the Complaint, as related to Judge Huvelle, is hereby dismissed with prejudice, on the

ground of absolute immunity.

2. Prosecutorial Immunity

As with Judge Huvelle, the plaintiff does not state the capacity in which he is suing

AUSAs Walutes and Ingersoll. However, because the plaintiff is challenging actions taken by

those federal prosecutors during his criminal prosecution, the defendants argue that Walutes and

Ingersoll also are entitled to absolute immunity. Defs.’ Mem. at 12–15. The Court agrees and

therefore will not address the defendants’ argument for dismissing the Complaint against the

same defendants based on qualified immunity. See

at 15–19.

11 Prosecutors enjoy absolute immunity from damages lawsuits predicated on their

“initiating a prosecution and [ ] presenting the [government’s] case[.]” Imbler v. Pachtman,

, 430–431 (1976) (holding that the prosecutor was absolutely immune from potential

liability for allegedly knowingly using false testimony and suppressing material exculpatory

evidence at trial); see also Moore v. Valder,

(D.C. Cir. 1995) (finding that

“prosecutorial immunity [ ] protects [the prosecutor] from liability for allegedly concealing

exculpatory evidence from the grand jury and for allegedly manipulating evidence before the

grand jury”). The plaintiff’s speculative and conclusory allegations that AUSA Walutes

“misled” Judge Huvelle and AUSA Ingersoll “took over the case and was fully aware that

Dennis L. Roie was alive, but she did not bring that information to Judge Huevell’s attention,”

Compl. ¶¶ 8–9, are based on their presentation of the government’s case during the criminal

proceedings. Therefore, the Complaint, as related to the federal prosecutors, is also dismissed

with prejudice, on the ground of absolute immunity. 1

C. Supplemental Jurisdiction

A district court “may decline to exercise supplemental jurisdiction over a claim . . . if,” as

in this case, it “has dismissed all claims over which it has original jurisdiction[.]”

(c)(3). Criminal defense attorneys, like defendant Johnson, are not government actors and

1 To the extent that the plaintiff is suing the federal defendants in their official capacities for damages under the Federal Tort Claims Act (“FTCA”),

(b), 2671–80, the defendants argue correctly that the plaintiff can state no claim for relief, see Defs.’ Mem. at 12, because his guilty plea, which is the basis for his conviction and sentence, has not been “called into question by a federal court’s issuance of a writ for habeas corpus” or otherwise declared invalid. Heck v. Humphrey,

, 486–87 (1994); see Parris v. United States,

(10th Cir. 1995) (reasoning that “[t]he FTCA like [42 U.S.C.] § 1983, creates liability for certain torts committed by government officials. As such, we conclude the same common law principles that informed the Supreme Court’s decision in Heck should inform the decision of whether an action under the FTCA is cognizable when it calls into question the validity of a prior conviction.”); Hall v. Admin. Office of U.S. Courts,

(D.D.C. 2007) (applying Heck bar to claim for damages under the FTCA) (citing cases)).

12 as such are not proper defendants in either § 1983 or Bivens actions. See Rice v. D.C. Pub. Def.

Serv.,

(D.D.C. 2008) (“Courts in this Circuit are bound by the Supreme

Court’s ruling, and [they] have dismissed civil rights claims against defense counsel on the

ground that counsel are not state actors when representing clients.”) (citing Polk County v.

Dodson,

, 325 (1981) (other citations omitted)). The Court liberally construes the

remaining allegations in the complaint as a common law claim of legal malpractice against

Johnson, see Compl. ¶¶ 8–10, over which the Court declines to exercise supplemental

jurisdiction. The claims against Johnson are therefore dismissed without prejudice.

IV. CONCLUSION

For the foregoing reasons, the federal defendants’ motion to dismiss is granted, and the

plaintiff’s claims against Judge Huvelle and the federal prosecutors are dismissed with prejudice.

The Court also declines sua sponte to exercise supplemental jurisdiction over the plaintiff’s

common law claims and therefore dismisses the plaintiff’s claims against Johnson without

prejudice. 2

________s/_____________ Reggie B. Walton DATE: December 3, 2019 United States District Judge

2 A separate final order accompanies this Memorandum Opinion.

13