Halgat v. United States

• Court: District Court, D. Nevada
• Decided: March 29, 2024
• Docket: 2:22-cv-00592
• Status: Unknown

Opinion

2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 JEREMY JOHN HALGAT, an Case No. 2:22-cv-00592-ART-EJY 5 individual Order Granting Motion to Dismiss 6 Plaintiff, (ECF No. 71) v. 7 UNITED STATES OF AMERICA, 8 Defendant. 9 10 11 Plaintiff, Jeremy John Halgat, brings this action against the United States of 12 America under the Federal Tort Claims Act (FTCA) for alleged misconduct 13 occurring during his prosecution. Plaintiff brings the following causes of action: 14 1) violation of the Due Process Clause of the Fifth Amendment; 2) intentional 15 infliction of emotional distress (IIED); 3) malicious and vindictive prosecution; 4) 16 abuse of process; and 5) negligence. Before the Court is Defendant’s Motion to 17 Dismiss (ECF No. 71.) 18 I. BACKGROUND 19 Plaintiff alleges the following. On September 23, 2011, a shooting occurred at 20 the Nugget Casino in Sparks, Nevada after an altercation between alleged Vagos 21 MC members and the Hells Angels Motorcycle Club, which resulted in the death 22 of Hells Angels Motorcycle Club member Jethro Pettigrew. (ECF No. 69 at ¶ 16.) 23 On November 15, 2011, Gary Rudnick was arrested and charged with First 24 Degree Murder with Use of a Deadly Weapon for his involvement in the September 25 23, 2011, incident at the Nugget Casino. (Id. at ¶ 18.) On January 5, 2012, 26 Rudnick told investigators that Vagos MC international leadership ordered the 27 killing of Pettigrew. (Id. at ¶ 19.) On March 16, 2012, Scott Rivera, an alleged 28 member of the Vagos MC, told investigators that he was not aware of any prior 1 plans to kill Pettigrew. (Id. at ¶ 21.) On July 22, 2013, Ernesto Gonzalez, an 2 alleged Vagos MC member, was tried for Pettigrew’s murder, and Rudnick 3 allegedly provided a different account of who was at the meeting where the hit 4 was ordered from what he had told investigators. (Id. at ¶ 23.) Another Vagos MC 5 member, Jefferson Martin, told investigators that there was no plan to murder 6 Pettigrew. (Id. at ¶¶ 27-28.) On December 31, 2015, the Nevada Supreme Court 7 reversed Gonzalez’s conviction and stated that Rudnick’s testimony was 8 uncorroborated by other witnesses or evidence. (Id. at ¶ 30.) 9 Various government witnesses allegedly changed their testimony about 10 whether there was a hit on Pettigrew. David Karpel, who at the time was a U.S. 11 Department of Justice Trial Attorney with the Organized Crime and Gang Section, 12 met with Rudnick on February 10, 2016, to discuss who attended the alleged 13 meeting. (Id. at ¶ 31.) On March 17, 2016, Rudnick allegedly told Gonzalez’s 14 investigator, April Higuera, that there was no conspiracy to murder Pettigrew and 15 that it was just a bar fight that went bad. (Id. at ¶ 32.) On March 5, 2017, after 16 meeting with Karpel and joint task force officers, Martin alleged a conspiracy 17 existed but changed the names of the individuals at the meeting. (Id. at ¶ 38.) On 18 March 14, 2017, Rivera stated that there was a “green light” to kill any Hells 19 Angels members and that there was also a side meeting after he met with Karpel 20 and joint task force members. (Id. at ¶ 39.) On March 18, 2017, Karpel was 21 informed that Rudnick had told different stories and recanted. (Id. at ¶ 40.) Karpel 22 had Rudnick, Rivera, and Martin testify before a grand jury where Karpel 23 allegedly prompted them to answer that certain members had been at the meeting 24 where a hit on Pettigrew was ordered. (Id. at ¶ 42.) 25 Plaintiff, along with twenty-two co-defendants, were indicted for violating the 26 Racketeer Influenced and Corrupt Organizations Act (RICO). (Id. at ¶ 10.) Plaintiff 27 alleges that Karpel “was directly responsible for bringing and signing the RICO 28 Indictment[.]” (Id.) He also allegedly met with government witnesses Gary 1 Rudnick, Jefferson, and Martin, and Scott Rivera prior to them testifying before 2 the grand jury on June 7, 2017. (Id. at ¶ 11.) The government allegedly knowingly 3 elicited false testimony to secure the indictment. (Id. at ¶ 12.) Allegedly, Martin 4 had told the government he felt pressure from Karpel to lie to law enforcement. 5 (Id. at ¶¶ 49, 57.) The government was also able to secure the indictment based 6 on evidence obtained through an undercover sting operation (Operation Pure 7 Luck) that included agents Arboreen, Brancato, and Wear. (Id. at ¶ 14.) 8 On June 16, 2017, Plaintiff was arrested in Las Vegas, Nevada. (Id. at ¶ 46.) 9 He was released on a personal recognizance bond on June 19, 2017, and was 10 required to wear a GPS monitor until his case was fully dismissed on June 12, 11 2020. (Id.) On February 24, 2020, a jury acquitted all defendants in Trial Group 12 1 of the RICO indictment, which did not include Halgat. (Id. at ¶ 59.) On March 13 16, 2020, co-defendant Jeffrey Voll’s defense attorney filed a Motion to Dismiss 14 the Superseding Indictment, and in response the government dismissed Count 1 15 against Halgat and other co-defendants. (Id. at ¶ 60.) On April 8, 2020, Judge 16 Gloria M. Navarro signed an order dismissing Count 1 in the superseding 17 indictment, and on June 12, 2020, she signed an order dismissing the remaining 18 counts against Halgat. (Id. at ¶ 62.) On April 7, 2022, Plaintiff filed the present 19 action. (ECF No. 1.) On August 16, 2022, Plaintiff voluntarily dismissed the 20 Washoe County Sheriffs Department. (ECF No. 22.) On August 20, 2022, Plaintiff 21 voluntarily dismissed the Los Angeles County Sheriffs Department. (ECF No. 26.) 22 On March 22, 2023, Plaintiff voluntarily dismissed Karpel, Arboreen, Brancato, 23 and Wear. (ECF No. 59.) 24 II. LEGAL STANDARD 25 A court must dismiss a complaint if it fails to state a claim upon which relief 26 can be granted. FED. R. CIV. P. 12(b)(6). “To survive a motion to dismiss, a 27 complaint must contain sufficient factual material, accepted as true, to ‘state a 28 claim to relief on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (quoting Bell 1 Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial 2 plausibility when the plaintiff pleads factual content that allows the court to draw 3 the reasonable inference that the defendant is liable for the misconduct alleged.” 4 Id. at 663 (citing Twombly, 550 U.S. at 556). 5 At the pleading stage, Twombly and Iqbal “calls for enough fact[s] to raise a 6 reasonable expectation that discovery will reveal evidence of [the claim].” 7 Twombly. 550 U.S. at 556. Under Twombly and Iqbal, “[a] court considering a 8 motion to dismiss can choose to begin by identifying pleadings that, because they 9 are no more than conclusions, are not entitled to the assumption of truth.” Iqbal, 10 556 U.S. at 664. Then, the court should assume the veracity of well-pleaded 11 factual allegations “and then determine whether they plausibly give rise to an 12 entitlement to relief.” Id. 13 III. DISCUSSION 14 A. Fifth Amendment Due Process Clause Claim 15 As an initial matter, Plaintiff concedes that he cannot bring his Fifth 16 Amendment Due Process Clause claim. (ECF No. 83 at 11.) Thus, the Court will 17 dismiss this claim. 18 B. Sovereign Immunity 19 Sovereign immunity shields the government from lawsuits unless it has 20 consented. “It is axiomatic that the United States may not be sued without its 21 consent and that the existence of consent is a prerequisite for jurisdiction.” United 22 States v. Mitchell, 463 U.S. 206, 212 (1983). Such consent must be “unequivocally 23 expressed in the text of a relevant statute.” Donovan v. Vance, 70 F.4th 1167, 24 1172 (9th Cir. 2023) (citations omitted). “Under 28 U.S.C. § 2680(h), the United 25 States is not liable for ‘[a]ny claim arising out of…malicious prosecution, abuse 26 of process,” and certain other intentional torts, unless committed by 27 “investigative or law enforcement officers of the United States Government.’” 28 Manansingh v. United States, No. 21-16192, 2023 WL 7295184, at *2 (9th Cir. 1 Nov. 6, 2023). However, the exception does not apply to prosecutors. Id. (defining 2 “investigative or law enforcement officer” as “any officer of the United States who 3 is empowered by law to execute searches, to seize evidence, or to make arrests 4 for violations of Federal law”); see also Manansingh v. United States, No. 21- 5 16192, 2023 WL 7295184, at *2 (9th Cir. Mar. 28, 2023) (“Federal prosecutors 6 do not qualify as ‘investigative or law enforcement officers.’”); Wright v. United 7 States, 719 F.2d 1032, 1034 (9th Cir. 1983), abrogated on other grounds as 8 recognized by Gasho v. United States, 39 F.3d 1420 (9th Cir. 1994) (finding that 9 a malicious prosecution claim concerning conduct by federal officials could only 10 proceed against an IRS agent but not a prosecutor because only the IRS agent 11 was an investigative or law enforcement officer). 12 Sovereign immunity shields the United States from this lawsuit. While 13 Plaintiff discusses multiple federal actors in his amended complaint, his 14 malicious prosecution and abuse of process claims are solely based on the 15 conduct of Karpel, who at the time was a U.S. Department of Justice Trial 16 Attorney with the Organized Crime and Gang Section. (ECF No. 69 at ¶ 26.) In 17 the section of the complaint discussing the malicious prosecution cause of action, 18 Plaintiff alleges that Karpel, along with Officer Arboreen, ATF Task Force Officer 19 Brancato, and agent Wear presented recanted testimony and material 20 representations to the Grand Juries to secure the indictments against Plaintiff 21 and his co-defendants (Id. at ¶ 90) but fails to explain how Arboreen, Brancato, 22 and Wear played any role in choosing whom to indict or what evidence to present 23 to the grand jury, both decisions normally made by the prosecutor. Similarly, 24 Plaintiff mentions Arboreen, Brancato, and Wear when pleading abuse of process 25 (Id. at ¶ 99), but the main allegations concern Karpel allegedly using fabricated 26 evidence, recanted testimony, lies, and materially misleading statements to 27 secure the indictments. (Id. at ¶ 100.) Because the United States has not 28 consented to suit based on prosecutorial conduct, Plaintiff cannot bring his 1 malicious prosecution or abuse of process claims. 2 Plaintiff also cannot bring his remaining claims for IIED and negligence 3 because these claims are based on the same conduct allegedly constituting abuse 4 of process and malicious prosecution. A court should look beyond labels when 5 determining whether the intentional tort exception applies to a claim. Thomas- 6 Lazear v. Fed. Bureau of Investigation, 851 F.2d 1202, 1207 (9th Cir. 1988). The 7 court should focus its inquiry “on whether conduct that constitutes an 8 enumerated tort is ‘essential’ to a plaintiff’s claim.” Sabow v. United States, 93 9 F.3d 1445, 1456 (9th Cir. 1996) (internal citations omitted). 10 Here, Plaintiff’s IIED alleges that Defendant is liable for IIED because 11 Karpel, Arboreen, Brancato, and Wear committed “extreme and outrageous acts 12 with the intent to indict Plaintiff and his co-defendants and inflict severe mental 13 and emotional distress upon Plaintiff and his co-defendants.” (ECF No. 69 at ¶ 14 83.) While Plaintiff names other parties, this claim clearly derives solely from 15 Karpel’s alleged conduct forming the basis of his malicious prosecution claim, 16 specifically his actions to indict Plaintiff and his co-defendants. See Imbler v. 17 Pachtman, 424 U.S. 409, 431 n.33 (1976) (explaining that prosecutors must 18 decide “questions of whether to present a case to a grand jury, whether to file an 19 information, whether and when to prosecute, whether to dismiss an indictment 20 against particular defendants, which witnesses to call, and what other evidence 21 to present.”). Thus, the claim is barred because it is based on prosecutorial 22 activity and relies on the malicious prosecution claim. 23 Plaintiff’s negligence claim is also barred. Plaintiff alleges that Karpel, 24 Arboreen, Brancato, and Wear violated their “duty of care to avoid causing 25 unnecessary distress to persons through their making of arrests, indictments, 26 and prosecution.” (ECF No. 69 at ¶ 107.) Plaintiff claims that they relied on 27 fabricated evidence, recanted testimony, and material representations to indict 28 Plaintiff and “commenc[e] an illegal and malicious prosecution of Plaintiff.” (Id.) 1 Thus, the malicious prosecution and abuse of process claims are essential to the 2 negligence claim, and the negligence claim is based on prosecutorial conduct. As 3 such, the Court will dismiss this claim. 4 C. Discretionary Function Exception 5 Plaintiff’s claims are also barred by the discretionary function exception. 6 The discretionary function exception bars “[a]ny claim…based upon the exercise 7 or performance or the failure to exercise or perform a discretionary function or 8 duty on the part of a federal agency or an employee of the Government, whether 9 or not the discretion involved be abused.” 28 U.S.C. § 2680(a). In determining 10 whether the discretionary function exception applies, courts first “ask whether 11 the challenged action involves ‘an element of judgment or choice.’” Sabow, 93 12 F.3d at 1451 (quoting United States v. Gaubert, 499 U.S. 315, 322 (1991)). “If the 13 challenged actions involve an element of choice or judgment, [the court] must 14 determine ‘whether that judgment is one of the kind that the discretionary 15 function was designed to shield.’” Id. (quoting Gaubert, 499 U.S. at 322-23). The 16 conduct must have a legitimate policy rationale. Id. at 1454. “While the burden 17 of proving the Gaubert factors ultimately falls on the sovereign entity asserting 18 the discretionary function exception, ‘a plaintiff must advance a claim that is 19 facially outside the discretionary function exception in order to survive a motion 20 to dismiss.’” Doe v. Holy See, 557 F.3d 1066, 1084 (9th Cir. 2009) (quoting 21 Prescott v. United States, 973 F.2d 696, 702 & n.4 (9th Cir. 1992)). 22 The discretionary function exception applies to Plaintiff’s claims. Because 23 all of Plaintiff’s claims are related to the decision to prosecute Plaintiff, they 24 involved “an element of choice or judgment…that the discretionary function was 25 designed to shield.” See Wright, 719 F.2d at 1035 (citing Smith v. United States, 26 375 F.2d 243 (5th Cir. 1967), cert. denied, 389 U.S. 841 (1967)) (“The decision 27 whether or not to prosecute a given individual is a discretionary function for 28 which the United States is immune from liability.”). 1 In addition, the discretionary function exception bars Plaintiff’s claims 2 insofar as they are based on alleged investigative misconduct. “The investigation 3 of crime involves policy judgments at the core of the executive branch.” Gonzalez 4 v. U.S., 814 F.2d 1022, 1032 (9th Cir. 2016). Thus, courts presume actions 5 connected to criminal investigations are grounded in a legitimate policy rationale. 6 Nieves Martinez v. United States, 997 F.3d 867, 880 (9th Cir. 2021) (citing 7 Gonzalez, 814 F.3d at 1028, 1032). However, the discretionary function exception 8 “does not apply to law enforcement investigations when a federal employee’s 9 tactics during an investigation had ‘no legitimate policy rationale.’” Id. at 881 (9th 10 Cir. 2021) (quoting Sabow, 93 F.3d at 1454). The Ninth Circuit has found that 11 there was a policy rationale for a border control agent’s threat that the family of 12 an individual under investigation could face 15 to 30 years of incarceration, even 13 though it “may have been negligent and even abusive,” because it “was furthering 14 an investigation meant to reduce the illegal transfer of drugs across the border.” 15 Here, the government agents were investigating the scope of a potential 16 scope of a criminal conspiracy to commit murder, and Plaintiff cannot identify 17 any specific actions undertaken by the government agents that was improper, so 18 the discretionary function exception applies. Since Plaintiff’s claims are not 19 facially outside the discretionary function exception, the exception applies to 20 Plaintiff’s claims. 21 a. Leave to Amend 22 The Court will not grant Plaintiff leave to amend. Because Plaintiff’s claims are 23 barred by sovereign immunity, amendment would be futile. See Daniel v. Nat’l 24 Park Serv., 891 F.3d 762, 766 (9th Cir. 2018) (citing Mitchell, 463 U.S. 206 at 25 212) (“a suit dismissed on sovereign immunity grounds cannot be salvaged.”). 26 IV. CONCLUSION 27 The Court notes that the parties made several arguments and cited to several 28 cases not discussed above. The Court has reviewed these arguments and cases 1 || and determines that they do not warrant discussion as they do not affect the 2 || outcome of the issues before the Court. 3 It is therefore ordered that Defendant’s Motion to Dismiss (ECF No. 71) is 4 || granted. 5 It is further ordered that Plaintiffs Motion to Extend Time (ECF No. 81) is 6 || denied as moot. 7 It is further ordered that the Clerk of Court close this case and enter judgment 8 || in favor of Defendant. 9 10 DATED THIS 29th day of March 2024. 11 12 on Aprox Wasted 14 UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28