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, 21 U.S.C. § 2113(a)(d) (2000); one count of Use of a Firearm During and in Relation
to a Crime of Violence, 18 U.S.C. § 924(c) (2000); and one count of False Statements, 18 U.S.C.
§ 1001 (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 id., 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.” Id.
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. Id., 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. Id., 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. Id.,
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, 2003 WL 467239, at *1 (D.C. Cir. Feb. 14, 2003) (per
curiam) (citation omitted). In July 2003, the plaintiff filed a motion pursuant to 28 U.S.C.
§ 2255 (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 id., 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 28 U.S.C. § 2255(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. __, 135 S. Ct. 2551 (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, id., 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
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, 835
F.2d 902, 906 (D.C. Cir. 1987); see Grand Lodge Fraternal Order of Police v. Ashcroft, 185 F.
Supp. 2d 9, 13 (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., 511 U.S. 375, 377 (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, 535 F. Supp. 2d 46, 47 (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, 402 F.3d 1249, 1253 (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))).
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, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)), a plaintiff must provide “more
than an unadorned, the defendant-unlawfully-harmed-me accusation,” id. The “complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Id. (quoting Twombly, 550 U.S. at 570). 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.” Id. (citing Twombly, 550 U.S. at 556). 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.’” Id. (quoting Twombly, 550 U.S. at
557).
“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, 677 F.3d 471, 476 (D.C. Cir. 2012) (quoting Schuler v.
United States, 617 F.2d 605, 608 (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, 556 U.S.
at 679.
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, 551 U.S. 89, 94 (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, 193 F.3d 545, 548 (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, 655 F.2d 1305, 1308 (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 28 U.S.C.
§ 2255, 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.
28 U.S.C. § 2255(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.
28 U.S.C. § 2255(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, 74 F.3d 1339, 1340 (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 42 U.S.C. § 1983 or Bivens v.
Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (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, 484 U.S. 219, 225 (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, 655 F.2d 1265, 1266 (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, 435 U.S. 349, 356, 359 (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, 6 F. Supp. 3d 31, 44 (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, 847 F. Supp. 170, 172 (D.D.C. 1994), cert. denied 513 U.S. 1150 (1995), and at
worst “patently frivolous,” Caldwell v. Kagan, 777 F. Supp. 2d 177, 179 (D.D.C. 2011); see
Chambers v. Gesell, 120 F.R.D. 1, 3 (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, 587 F.3d 1122, 1127
(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, 137 F.3d 447, 454 (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, 378 F. Supp. 3d 1, 7 (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, 6 F. Supp. 3d at 44 (“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, 248 F.
Supp. 2d 17, 25 (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 id. 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, 424
U.S. 409, 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, 65 F.3d 189, 194 (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[.]” 28 U.S.C.
§ 1367(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”), 28 U.S.C. §§ 1346(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, 512 U.S. 477, 486–87 (1994); see Parris v. United States, 45 F.3d 383, 385 (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, 496 F. Supp. 2d 203, 208 (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., 531 F. Supp. 2d 202, 204 (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, 452 U.S. 312, 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.