CHRIS McALILEY, Magistrate Judge.
Plaintiff Hugo Pena was criminally convicted in this Court in 2010, after a trial by jury. See United States v. Pena, et al., Case No. 10-CR-60158-DIMITROULEAS. (hereafter CR-ECF No. ____.) In this civil lawsuit, Pena claims his conviction was unlawfully procured by Defendants' fraudulent conduct, and he sues for a variety of remedies, none of which this Court is empowered to grant. I therefore recommend that the Court dismiss the lawsuit with prejudice, for the reasons set out below.
Defendants have filed the following motions: G&G Marine, Inc., G&G Shipping, Subsidiary I, LLC, and Coastal Shipping Holding, Inc. (the "G&G Defendants'") have filed a Motion to Dismiss Amended Complaint, (ECF No. 66), and a Motion to Strike Petition of Declaratory Judgment. (ECF No. 70). The United States Coast Guard has also filed a Motion to Dismiss. (ECF No. 75) (together, "the Motions"). The Motions have been fully-briefed, (ECF Nos. 67, 68, 72, 76, and 78), and the Honorable Robert N. Scola, Jr. referred them to me for a report and recommendation. (ECF No. 48). I recommend that the Court grant the Motions.
Pena's criminal charges arose from his work, in 2010, as a classification surveyor and employee of HP Maritime Consultants, Inc., ("HP Maritime") also a Plaintiff in this lawsuit. At the relevant time, HP Maritime subcontracted for a classification society which was tasked with conducting a survey and inspection of the M/V Island Express, a 155-foot cargo ship that was registered in the Republic of Panama, and home ported in this District. (CR-ECF No. 31, ¶¶ 1, 4, 5).
The M/V Island Express was subject to a treaty, MARPOL,
Panama engaged HP Maritime, by subcontract, to inspect the M/V Island Express, in April, 2010. Pena conducted that inspection and signed and issued an IOPP Certificate, that verified the vessel's compliance with MARPOL. (Id. Count 1, ¶ 11, Counts 27, 28). In fact, at the time of that inspection, and for several months prior, the Oil Water Separator on the M/V Island Express was inoperable, and the ship's crew, at the direction of its officers, directly pumped oil-contaminated waters overboard, in violation of MARPOL and APPS. (Id. at ¶¶ 4-6).
The United States Coast Guard discovered this during its inspection of the ship the following month. (CR-ECF 1, at 5-6, Criminal Complaint). A Coast Guard inspector questioned Pena at the time, and Pena admitted that he did not survey the Oil Water Separator before he issued the IOPP Certificate, because the vessel's chief engineer had told him it was inoperable. (Id. at 6-7).
A grand jury charged Pena and HP Maritime, by Superseding Indictment, in June of 2010, with: (1) conspiracy to commit an offense against the United States (by knowingly failing to maintain an accurate Oil Record Book on board the M/V Island Express I), in violation of 18 U.S.C. 371 (Count 1); (2) violation of MARPOL (by failing to conduct a complete inspection of the vessel), in violation of 33 U.S.C. 1908(a) (Count 27); and (3) making a false official statement (that the ship complied with MARPOL), in violation of 18 U.S.C. 1001(a)(2) (Count 28). (Cr. ECF No. 31). The Superseding Indictment also brought charges against the ship's captain and chief engineer. (Id.). Count 1 was dismissed, and a jury found Pena guilty of Counts 27 and 28. (Cr. ECF Nos. 117). The Court sentenced Pena to concurrent five-year sentences of probation. (Cr. ECF No. 142).
The Amended Complaint was filed on behalf of Pena and HP Maritime. Pena represents himself in this action, and no attorney has entered an appearance on behalf of HP Maritime. Early in this lawsuit the Court advised Plaintiffs that HP Maritime could only proceed in this lawsuit if represented by counsel, and that Pena, who is not a lawyer, cannot act as the company's lawyer. (ECF No. 14).
The Amended Complaint is confusing and difficult to follow. The Court can, nonetheless, understand what is necessary to resolve the Motions and to assess the validity of the lawsuit. In particular, Plaintiff brings "an action for damages pursuant to 42 U.S.C. §§ 1983 and 1985" against the United States Coast Guard ("Coast Guard") and the G&G Defendants. (ECF No. 62 at ¶ 11). Plaintiff alleges that the G&G Defendants were the owners, vessel operation company, and vessel agency responsible for the M/V Island Express I. (ECF No. 62 at ¶¶ 8-10). Plaintiff generally alleges that the Coast Guard and the G&G Defendants conspired, and together engaged in fraud, and thus brought about Plaintiff's unlawful criminal conviction. (See, e.g. ECF No. 62 at ¶¶ 24-29). Plaintiff asks this Court to (1) vacate his criminal conviction; (2) award him compensatory and punitive damages; and (3) enjoin the Coast Guard from "further unconstitutional prosecutions." (ECF No. 62 at ¶ 4).
Plaintiff also filed a Petition for Declaratory Judgment. (ECF No. 69). Therein, Plaintiff asks the Court to "pronounce Defendant 2 (the G&G Defendants) responsible for this fraud upon the court and obtain the Plaintiff relief or either in the form of damages or injunctions." (Id. at 5).
Rule 8(a) of the Federal Rules of Civil Procedure requires "a short and plain statement of the claim showing that the pleader is entitled to relief" and "a demand for the relief sought, which may include relief in the alternative or different types of relief." FED. R. CIV. P. 8(a)(2) and (3). "To 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 (2009) (quotation marks and citation omitted). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.
On a motion to dismiss the complaint for failure to state a claim upon which relief can be granted, the court takes the factual allegations in the complaint as true and construes them in the light most favorable to the plaintiff. Edwards v. Prime Inc., 602 F.3d 1276, 1291 (11th Cir. 2010). Where the relief sought by the plaintiff is unavailable as a matter of law, dismissal is appropriate. See Schweiker v. Chilicky, 487 U.S. 412, 429 (1988).
Plaintiff purports to sue Defendants under 42 U.S.C. §§ 1983 and 1985(3).
Liability under both §§ 1983 and 1985(3) is confined to state action taken in violation of federal or constitutional rights. Dye v. U.S., 516 F.Supp.2d 61, 71 (D.D.C. 2007) ("[42 U.S.C. §§ 1983 and 1985(3) neither authorize suits challenging actions taken under color of federal law, nor waive the United States' sovereign immunity. Both statutes are addressed to state action, not federal action. . . ." (quotations and citations omitted)). See also Meyer v. Reno, 911 F.Supp. 11, 14 n.1 (D.D.C. 1996) ("It is well established that 42 U.S.C. § 1983, which provides a cause of action for violations of constitutional rights accomplished under color of state law, does not provide a basis for suit for actions taken under color of federal law." (citing Stonecipher v. Bray, 653 F.2d 398 (9th Cir. 1981), cert. denied, 454 U.S. 1145 (1982); and Gillespie v. Civiletti, 629 F.2d 637 (9th Cir. 1980)); Baker v. McDonald's Corp., 686 F.Supp. 1474, 1480 (S.D. Fla. 1987), aff'd, 865 F.2d 1272 (11th Cir. 1988) ("In order to prevail on his [42 U.S.C. 1985(3) claim] . . . the plaintiff must show state action; i.e., a conspiracy with state employees or officials (state actors).").
Plaintiff's claims arise from his federal prosecution and conviction. The Amended Complaint contains no allegations of any conduct taken under color of state law, nor any basis to infer such conduct.
The Amended Complaint must also be dismissed because the following claims for relief are unavailable as a matter of law. First, Plaintiff's request that this Court vacate his conviction cannot be achieved through this civil action. Second, Plaintiff sues for damages, under §1983, for his criminal conviction, although such a claim could arise only if Plaintiff's conviction had been invalidated. Last, Plaintiff asks the Court to "enjoin [the] USCG from further unconstitutional prosecutions to American Citizen, in cases in which Shipping Owners, Vessel Operation Companies has a financial interest and are liable for their actions," and this too, is beyond the Court's authority. (ECF No. 62 at ¶ 4). I separately address these requests for relief.
Plaintiff invokes Rule 60(d)(3) as authority for this Court to vacate his conviction. (ECF No. 62, at 1, 15 ¶ 42; 67 at 7). Rule 60 applies only to civil cases, and does not empower this Court to vacate a criminal conviction. FED. R. CIV. P. 60; United States v. Ford, 677 Fed. App'x 628, 628 (11th Cir. 2017) (citations omitted). Plaintiff previously petitioned Judge Dimitrouleas, who presided over his criminal case, to vacate Plaintiff's conviction under Rule 60(d)(3). Judge Dimitrouleas declined to do so, and advised Plaintiff: "Rule 60(d)(3), Fed. R. Civ. P., allows a court to set aside a civil judgment for fraud on the court. It does not apply to a criminal conviction."(CR-ECF No. 187, at ¶ 6).
Monetary damages could not be available here, under § 1983, unless Plaintiff's conviction had been previously invalidated. Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). In Heck, the Supreme Court held that
512 U.S. at 486-87. Pena's conviction has not been invalidated. In fact, it was affirmed on direct appeal, United States v. Pena, 684 F.3d 1137 (11th Cir. 2012), and the Supreme Court denied certiorari, Pena v. United States, 568 U.S. 1088 (2013). Plaintiff could not recover damages on his§ 1983 claim.
Plaintiff asks this Court to "enjoin the USCG . . . from further unconstitutional prosecutions to American Citizen, in cases in which Shipping Owners, Vessel Operation Companies has a financial interest and are liable for their actions." (ECF No. 62 at ¶ 4). Plaintiff must articulate a future injury to establish standing to seek injunctive relief. City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983). Injunctive relief may only be granted where a party faces a "continuing present injury or real and immediate threat of repeated injury." Dudley v. Stewart, 724 F.2d 1493, 1494 (11th Cir. 1984), abrogated on other grounds by Bass v. Perrin, 170 F.3d 1312, 1318 n.9 (1999).
Even if Plaintiff were able to establish irregularities or fraud in connection with his criminal prosecution, "[p]ast exposure to illegal conduct does not in itself show a pending case or controversy regarding injunctive relief. . . ." Id. The potential for future harm to unidentified other individuals does not implicate any present injury or real and immediate threat of repeated injury to the Plaintiff, especially given Plaintiff's request to enjoin future unjust prosecutions of others. Given the lack of any present injury or real and immediate threat of repeated injury, Plaintiff lacks standing to seek injunctive relief and his request for such relief must be dismissed.
As regards Plaintiff's claims against the Coast Guard, the United States has not waived its sovereign immunity from suit for money damages arising from constitutional violations. United States v. Timmons, 672 F.2d 1373, 1380 (11th Cir. 1982) (citations omitted); see also Jones v. National Communication and Surveillance Networks, 409 F.Supp.2d 456, 466 (S.D.N.Y 2006) ("The U.S. government has not waived its sovereign immunity for claims under Sections 1981 to 1986 of Title 42." (citation omitted)). This Court therefore lacks subject matter jurisdiction over Plaintiff's claims against the Coast Guard, and those claims must be dismissed. FED. R. CIV. P. 12(b)(1).
After he filed his Amended Complaint, Plaintiff filed a Petition for Declaratory Judgment. (ECF No. 69). It appears Plaintiff wants to amend his complaint to add a claim for declaratory relief. This Petition is procedurally improper and should be dismissed for that reason. I nonetheless address the merits, so that Plaintiff understands that had he included this demand in his complaint, it would still fail.
Plaintiff asks the Court to "reexamine [the Criminal Action] . . . [and] pronounce Defendant 2 (the G&G Defendants) responsible for this fraud and relief the Plaintiff or in the form of either damages or injunctions." (ECF No. 69 at ¶ 18). Declaratory relief is not available here. "The point of a declaratory judgment is to permit actual controversies to be settled before they ripen into violations of law, not to adjudicate past conduct." Great Lakes Reinsurance (UK) PLC v. TLU Limited, 07-61259-Civ, 2008 WL 828122 (S.D. Fla. Mar. 27, 2008) (quotations and citations omitted).
Plaintiff's claims that Defendants caused his unjust conviction by fraud is highly disputed. This lawsuit calls upon the Court to make a factual determination regarding past conduct. There is no current legal right or obligation between the parties that is in dispute — which is what a declaratory judgment might address. Also, a declaratory judgment here would be duplicative to Plaintiffs' damages claims, and therefore unnecessary. See, e.g. Sierra Equity Group, Inc. v. White Oak Equity Partners, 650 F.Supp.2d 1213, 1231 (S.D. Fla. 2009) (dismissing declaratory judgment claim that asked the Court to make factual determinations related to past conduct and would not "lead to a change in conduct by either party in order to conform their behavior to the law or minimize the danger of future monetary loss by the parties.").
For these reasons, I recommend that the Court deny Plaintiff's Petition for Declaratory Judgment. (ECF No. 69).
Title 42 U.S.C. § 1988(b) provides, in part, that "[i]n any action or proceeding to enforce a provision of [§§ 1981 through 1986 of Title 42, among other statutes], the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." The Supreme Court, in Christianburg Garment Co. v. EEOC, 434 U.S. 412 (1978), considered a similar prevailing party attorneys fee provision in Title VII, and set out a standard for the award of fees to a prevailing defendant:
434 U.S. at 412, 421-22 (1978). The Court extended that standard to attorneys fees awards under §1988(b). Hughes v. Rowe, 449 U.S. 5, 14 (1980). The Eleventh Circuit has identified three factors to consider in determining whether an action was frivolous, so as to justify an award of attorney's fees to the prevailing defendant: whether (1) the plaintiff established a prima facie case; (2) the defendant offered to settle; and (3) the trial court dismissed the case prior to trial. Sullivan v. Sch. Bd. of Pinellas Cnty., 773 F.2d 1182, 1189 (11th Cir. 1985).
Courts are far less inclined to award attorneys fees against a losing pro se plaintiff. Hughes, 449 U.S. at 15 (attorney's fees should rarely be awarded against uncounseled prisoner plaintiffs because an unrepresented litigant should not be punished for his failure to recognize subtle legal deficiencies in his claims); Miller v. Los Angeles Count Bd. of Educ., 827 F.2d 617, 620 (9th Cir. 1987) (" pro se plaintiffs cannot simply be assumed to have the same ability as a plaintiff represented by counsel to recognize the objective merit (or lack of merit) of a claim"). Attorney's fees may be appropriate where a pro se plaintiff continues to bring claims that were previously found to be frivolous, but absent such extreme conduct, courts are less likely to award attorney's fees against a pro se plaintiff who may be unable to recognize what constitutes a frivolous complaint. Id., at 620.
The G&G Defendants have asked the Court to award them the attorneys' fees and costs they incurred in defending against this action. (ECF No. 66, at 18; 70 at 13). The Court is not unsympathetic to this request. Plaintiff certainly has failed to establish a prima facie case. Yet his claims mostly fail on sophisticated legal concepts that a nonlawyer is ill equipped to recognize. In addition, the claims and arguments raised in this action are mostly distinguishable from those he raised in the criminal case, and Plaintiff has not previously filed a civil action against the Defendants. On this record, I recommend that the Court deny the G&G Defendants' request for fees.
Based on the foregoing, I
RESPECTFULLY RECOMMENDED in chambers in Miami, Florida this 2nd day of October, 2019.
