Reynoso v . USA, et a l . CV-00-103-M 07/25/00 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Felix Reynoso

v. Civil N o . 00-103-M Opinion N o .

United States of America Jacqueline Bussiere-Burke, AUSA

REPORT AND RECOMMENDATION

Before the court is pro se plaintiff Felix Reynoso who has

filed suit, pursuant to

, against the United

States of America and Assistant United States Attorney Jacqueline

Bussiere-Burke. Reynoso seeks dismissal of pending criminal

charges for alleged violations of his rights under the 5th

amendment to the Constitution and the Vienna Convention. As

Reynoso is proceeding pro se and in forma pauperis the complaint

is currently before me for preliminary review. See United States

District Court for the District of New Hampshire Local Rules

(“LR”) 4.3(d)(2). For the reasons stated below, I recommend that

the complaint be dismissed without prejudice. See

(e)(2)(B)(ii) & (iii). Reynoso has also filed a motion seeking the appointment of

counsel. Because I recommend that the complaint be dismissed for

failing to state a claim upon which relief may be granted, I am

recommending denial of the motion to appoint counsel, also

without prejudice should Reynoso elect to renew these claims in

any forum in the future.

Background

Reynoso alleges that on January 1 9 , 2000, unnamed Manchester

(N.H.) Police officers kicked in his apartment door without a

warrant, arrested him and brought him to the Manchester Police

station where he was booked. He was not read his Miranda1 rights

or told that he had a right to contact his consulate pursuant to

the Vienna Convention2.

Reynoso states that the first time he was advised he had a

right to contact his consulate was by letter from the Assistant

United States Attorney he received on February 1 6 , 2000. Reynoso

is incarcerated in the Cumberland County Jail in Portland, Maine.

He alleges that during his incarceration there, unnamed

1 See Miranda v . Arizona,

(1966). 2 See Article 36 of the Vienna Convention on Consular Relations, April 2 4 , 1963, 21 U.S.T. 7 7 , 596 U.N.T.S. 261 (ratified November 2 4 , 1969)(“Vienna Convention”).

2 corrections officers have refused his request to use the “white

phone” to contact his consulate.

Background

In reviewing a pro se complaint, a district court is obliged

to construe the pleading liberally. See Ayala Serrano v . Lebron

Gonzales,

, 15 (1st Cir. 1990) (following Estelle v .

Gamble,

7 , 106 (1976) to construe pro se pleadings

liberally in favor of that party). At this preliminary stage of

review, all factual assertions made by the plaintiff and

inferences reasonably drawn therefrom must be accepted as true.

See Aulson v . Blanchard,

, 3 (1st Cir. 1996) (stating

the “failure to state a claim” standard of review and explaining

that all “well-pleaded factual averments,” not bald assertions,

must be accepted as true). Even generously reading the complaint

in favor of Reynoso, I cannot find any claim upon which relief

may be granted. See

(e)(2)(B)(ii)&(iii).

1. Choice of Defendants

“[V]ictims of a constitutional violation perpetrated by a

federal actor may sue the offender for damages in federal court

despite the absence of explicit statutory authorization for such

3 suit.” Ruiz Rivera v . Riley,

4 , 26 (1st. Cir 2000)

(quoting Wright v . Park,

, 589 n.4 (1st Cir.

1993)(citing Bivens v . Six Unknown Named Agents of Fed. Bureau of

Narcotics,

(1971)). However, “[i]t is well-settled

that a Bivens action will not lie against an agency of the

federal government.” Ruiz Rivera,

(citing FDIC v .

Meyer,

7 1 , 486 (1994)). This is also true for federal

officials sued in their official capacities. Ruiz Rivera,

(citations omitted). Bivens actions, or civil rights

lawsuits against federal actors, can therefore only be brought

against federal officials in their individual capacities.

Here, Reynoso has elected to sue the United States of

America and Assistant United States Attorney Jacqueline Bussiere-

Burke. To the extent he sues the federal government or Attorney

Bussiere-Burke in her official capacity, I find that neither

defendant is amenable to suit by virtue of the sovereign immunity

they enjoy pursuant to the 11th amendment to the Constitution.

Further, to the extent that Reynoso may have intended an

individual capacity suit against Bussiere-Burke, he has neither

alleged any conduct on her part which could be construed to

violate any constitutional right, nor has he overcome the fact

4 that a prosecutor is entitled to absolute immunity from suit

under

for conduct associated with her

prosecutorial function. See Imbler v . Pachtman,

. 431

(1976); Harrington v . Almy,

7 , 40 (1st Cir. 1992).

Because Reynoso has failed to allege any unconstitutional

conduct on the part of any named defendant and has declined to

name as a defendant any defendant associated with either the

Manchester Police Department or the Cumberland County Jail, I

recommend dismissal of this complaint against each named

defendant.

2. The Claims

a. The Miranda Claim

A suspect subjected to custodial interrogation is entitled

to be advised of his rights in accordance with Miranda v .

Arizona,

(1966). Reynoso asserts that his rights

were not read to him while the Manchester Police Department had

him in custody, but does not assert that he was subjected to

interrogation during that time or that he made any incriminating

5 statements. Miranda only applies if custodial interrogation

occurs. However, even if Reynoso were interrogated without the

benefit of Miranda warnings, violations of the prophylactic

Miranda procedures, without more, do not rise to the level of a

constitutional violation actionable under

. See

New York v . Quarles,

(1984)(accused has no right to

receive Miranda warnings because warnings are only a procedural

safeguard designed to protect a person’s right against self-

incrimination); see also Veilleux v . Perschau,

, 2-3

(1st Cir. 1996)(“There is considerable doubt whether, even apart

from Quarles, a Miranda violation standing alone would give rise

to a constitutional claim under section 1983."); Giuffre v .

Bissell,

(3rd Cir. 1994). “[T]he remedy for a

Miranda violation is the exclusion from evidence of any compelled

self-incrimination, not a section 1983 action.” Warren v . City of

Lincoln,

(8th Cir. 1989).

I therefore recommend that to the extent Reynoso alleges a

procedural Miranda violation, his claim be dismissed.

b. The Vienna Convention Claim

Reynoso requests the dismissal of charges against him due to

the failure of defendants to afford him rights pursuant to the

6 Vienna Convention3. Without deciding whether or not the Vienna

Convention even confers individual rights on detained aliens 4 ,

this Circuit has recently decided that appropriate remedies for a

violation of any right of an individual that might exist under

the Vienna Convention to consular notification “do not include

suppression of the evidence or dismissal of the indictment.”

United States v . L i ,

6 , 60-61 (1st Cir. 2000)(citations

omitted).

Further, even assuming Reynoso has enforceable rights under

the Vienna Convention, he has made no showing of prejudice based

on a violation of those rights. Such a showing is required

before a plaintiff may be granted any relief. United States v .

Ademaj,

8 , 67 (1st C i r . ) , cert. denied,

(1999)(rejecting claim based on Vienna Convention because

3 Reynoso does not allege that he is an alien who would be entitled to any rights that may be conferred by the Vienna Convention. This fact is inferred for purposes of preliminary review based solely on his assertion of rights under this treaty. 4 See United States v . L i ,

6 , 60 (1st Cir. 2000)(addressing the question of “[w]hether the Vienna Convention . . . create[s] individual rights as to consular notification and access[] that are enforceable by such individuals in court provc4eedings” and finding that courts that have faced the issue “have come to divergent conclusions” and holding that even if the Vienna Convention did confer such an individual right, those rights are not remediable by suppression of evidence or dismissal of a criminal indictment.)

7 claimant had not shown prejudice due to the violation).

Therefore, to the extent that Reynoso complains of a

violation of his rights pursuant to the Vienna Convention, I

recommend dismissal of the complaint.

Conclusion

For the reasons set forth above, I recommend that this

complaint be dismissed in its entirety for failing to state a

claim upon which relief may be granted. See

(e)(2)(B)(ii)&(iii); LR 4.3(d)(1)(B)(i). If approved, the

dismissal will count as a strike against the plaintiff under

(g).

Because it appears that M r . Reynoso is the defendant in a

criminal proceeding in this court (see CR-99-130-01-M) I

emphasize that this ruling is without prejudice to that case or

in a subsequent civil or criminal case. Further, to the extent

that M r . Reynoso here seeks this court’s intervention in his

criminal case, that request should be made by motion in the

criminal case.

Any objections to this Report and Recommendation must be

8 filed within ten (10) days of receipt of this notice. Failure to

file objections within the specified time waives the right to

appeal the district court’s order. See Unauthorized Practice of

Law Committee v . Gordon,

1 , 13-14 (1st Cir. 1992);

United States v . Valecia-Copete,

, 6 (1st Cir. 1986).

James R. Muirhead United States Magistrate Judge Date: July 2 5 , 2000

cc: Felix Reynoso

9