United States District Court, S.D. Georgia, Savannah Division
ORDER AND AMENDED REPORT AND RECOMMENDATION
Christopher L. Ray, United States Magistrate Judge
pro se and in forma pauperis, plaintiff
Mason Burbank has filed this 42 U.S.C. § 1983 action
alleging various constitutional violations arising from the
execution of a warrant and his subsequent arrest by a Federal
Bureau of Investigation (FBI) child pornography task force.
See CV418-294, doc. 6; see generally United
States v. Burbank, CR417-44 (charges dismissed and case
closed on June 29, 2017). The Court, after screening his
Complaint pursuant to 28 U.S.C. § 1915A, recommended
dismissal for failure to state a claim. Doc. 7. In his
objections, Burbank raised several arguments that warrant
consideration. Doc. 8.
he complains that the Report and Recommendation (R&R)
failed to address his allegations of excessive force. In his
Amended Complaint seeking injunctive relief, however,
Burbank's reference to an “excessive force”
claim was, at best, ambiguous. See doc. 6 at 3-4
(listing, inter alia and without explication,
“excessive force” as a violation of Eighth
Amendment rights). Further, the alleged facts only reflect
“force” exerted against his step-daughter.
See Id. at 5. Constitutional rights violations, of
course, cannot be vicariously asserted. See Tileston v.
Ullman, 318 U.S. 44, 46 (1943). Even if her rights were
violated, therefore, his claim for damages for those
violations would still be subject to dismissal. To the extent
that Burbank alleges that he suffered injuries, including a
seizure, migraines, and panic attacks, he does not identify
how those injuries resulted from law enforcement's use of
force. See doc. 6 at 5-6. His requested relief is
also inconsistent with the assertion that he asserted a claim
for damages based on excessive force. See Id. at 6
(listing damages sought from each individual defendant
“for participating in illegal search”).
Court was not required to construe Burbank's ambiguous
references to excessive force as asserting a separate claim
for damages. See Boles v. Riva, 565 Fed.Appx. 845,
846 (11th Cir. 2014) (leniency afforded to pro se
litigants “does not give a court license to serve as
de facto counsel for a party, or to rewrite an
otherwise deficient pleading in order to sustain an
action.” (quotes and cite omitted)). It is, moreover,
not required to cobble together allegations made across two
complaints and an objection to muster an excessive force
claim. Given Burbank's additional factual assertions,
however, an opportunity to amend his Complaint to flesh out
his claim is appropriate. See, e.g., Jenkins v.
Walker, 620 Fed.Appx. 709, 711 (11th Cir. 2015)
(“[W]hen a more carefully drafted complaint might state
a claim, a district court should give a pro se
plaintiff at least one chance to amend the complaint before
the court dismisses the action.” (citation omitted)).
balance of Burbank's objection is occupied in his
arguments about whether the agents' conduct violated his
Fourth Amendment rights, in support of either his claim for
injunctive relief or for damages, under Bivens.
See generally doc. 8. To the extent that his
arguments concern the existence or significance of a
violation of the provisions of Fed. R. Crim. P. 41, they are
irrelevant. Whether or not noncompliance with the Rules might
support a motion to suppress evidence procured by those
agents, violations of the Federal Criminal Rules are
not violations of constitutional rights.
See doc. 7 at 5-11. As such, they cannot form the
basis for a Bivens claim. See, e.g., Hollins v.
Samuals, 540 Fed.Appx. 937, 938 (11th Cir. 2013) (citing
Powell v. Lennon, 914, F.2d 1459, 1463 (11th Cir.
1990) (“To state a Bivens claim, a plaintiff
must show that he was deprived of a constitutional
right.”)). Put differently: whether the defendants
violated Rule 41, knowingly, intentionally, or otherwise does
not constitute a violation of a constitutional
viability of Burbank's Bivens claim for damages,
then, depends upon whether the conduct alleged violated his
constitutional rights. Burbank correctly points out that
Simmons is distinguishable from his case, based on
the fact that it involved a covert entry. Doc. 8 at 2.
However, Simmons also stands for the general
proposition that a violation of Rule 41 does not per
se amount to a violation of the Fourth Amendment:
“There are two categories of Rule 41 violations: those
involving constitutional violations, and all others.”
United States v. Simons, 206 F.3d 392, 403 (4th Cir.
2000) (citing United States v. Chaar, 137 F.3d 359,
362 (6th Cir. 1998); United States v. Gerber, 994
F.2d 1556, 1560 (11th Cir. 1993); United States v.
Negrete-Gonzales, 966 F.2d 1277, 1283 (9th Cir. 1992);
United States v. Burke, 517 F.2d 377, 386-87 (2d
on that distinction, the Simmons court
“conclude[d] that the failure of the team executing the
warrant to leave either a copy of the warrant or a receipt
for the items taken does not render the search
unreasonable under the Fourth Amendment. The Fourth
Amendment does not mention notice, and the Supreme Court has
stated that the Constitution does not categorically proscribe
covert entries, which necessarily involve a delay in
notice. [Cit.] And, insofar as the [covert search]
satisfied the requirements of the Fourth Amendment,
i.e., it was conducted pursuant to a warrant based
on probable cause issued by a neutral and detached
magistrate, we perceive no basis for concluding that the
45-day delay in notice rendered the search
unconstitutional.” Simmons, 206 F.3d at 403
(emphasis added). Thus, the Fourth Amendment's
protections are provided by the issuance of the warrant
itself, based upon probable cause, and “whatever the
most prudent course may be, the [F]ourth [A]mendment does not
require officers to have a warrant in hand when
searching.” United States v. Cazares-Olivas,
515 F.3d 726, 730 (7th Cir. 2008).
forth in the R&R, whatever procedural violations
of Rule 41 may have occurred, there was no Fourth Amendment
violation. In the absence of a constitutional violation,
Burbank cannot state a Bivens claim. See
doc. 7 at 11 (“In sum, the failure of federal agents to
provide Burbank with a copy of the warrant at the time of its
execution - though indisputably a violation of Rule 41 - did
not render the search unconstitutional.”).
Based on the lack of any constitutional violation,
the R&R correctly pronounced his Bivens claim
“dead in the water.” Id. at 12. The
remaining alleged constitutional violations, which include
“1st Amendment Access to court, 5th, 6th Amendment Due
Process, ” are not related in any discernable way, to
any factual allegation. See doc. 6 at 3-4 (listing
alleged constitutional violations), 5 (factual allegations);
see also doc. 1 (original Complaint seeking only
injunctive relief to prevent agents from testifying or
introducing evidence in state criminal proceeding). Such wan
allegations were rightly dismissed. See, e.g., Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (“[T]he tenant
that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal
conclusions. Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not
suffice.” (cite omitted)).
the merits of his motion to suppress evidence in the
now-dismissed federal prosecution, it bears repeating that
Burbank is currently facing state charges and a state trial
and that he seeks to prevent the federal agents who executed
the search warrant from testifying against him in his state
trial. Doc. 6 at 5-13. It further bears emphasizing that
while Burbank sought to suppress the fruits of their search
of his electronic devices in the federal case against him,
no order ever issued from this Court suppressing that
evidence. Doc. 7 at 13 (citing CR417-044). Indeed,
Burbank concedes that no order exists which can be enforced.
Doc. 8 at 4 (noting that “It is true that no
suppression order was issued.”) Thus, all the law he
cites on the merits of suppression (doc. 8 at 2) does not
warrant this Court reaching into state proceedings and ruling
on the admission of evidence (either the images/videos
recovered from his electronic devices or defendants'
testimony) before the state court. Doc. 7 at 11-15.
is clear that the only time a federal court would
intervene in a state prosecution is to stop federal law
enforcement from evading a federal court's order
suppressing evidence. Doc. 7 at 12-14, citing Rea v.
United States, 350 U.S. 214, 217 (1956); Wilson v.
Schnettler, 365 U.S. 381, 387 (1961); United States
v. Navarro, 429 F.2d 928, 930 (5th Cir. 1970). Here,
no such order exists. The reason that no order
exists - that the Government dismissed the charges before an
order issued - is irrelevant to the analysis. As is the
“timeline” that Burbank harps upon. Doc. 8 at 4.
The bare fact of the matter is that no order issued, and,
thus, the Court has no interest to balance against the
general principles advising noninterference with the state
argument conflating “knowing and deliberate” with
“intentional, ” which goes to the merits of
suppression and touches on an analysis of the executing
agents' subjective bad faith in failing to provide
Burbank with a copy of the warrant as required by Rule 41
(doc. 8 at 3), does not change matters. To the extent he
challenges the Court's dismissal of his requests for
damages, he does not demonstrate that the Court erred in its
conclusion that Kirkconnell's failure to serve him with a
copy of a concededly valid warrant lacks constitutional
magnitude. And to the extent he is simply continuing his
attempt to relitigate his motion to suppress that was filed -
and never ruled upon - in his federal case (see
CR417-044), his ongoing legal research provides him no
succor. His expectation that this Court might have
ruled in his favor by granting suppression has no bearing
whatsoever on the Court's ability to give him the relief
he now seeks: the enforcement of an order that does not
exist. “Burbank, in other words, asks for relief
that this Court cannot provide.” Doc. 7 at 15.
forth in the R&R, Burbank may (and, indeed, must, if he
pursues them at all) take his arguments for suppression to
the state trial court. Doc. 7 at 12 n. 7. Longstanding
abstention jurisprudence cautions against this Court
interfering in his state trial court proceedings,
particularly where (as here) plaintiff clearly has an
adequate remedy in the state courts. Younger v.
Harris, 401 U.S. 37, 53 (1971); Wilson, 365
U.S. at 384; see also Doby v. Strength, 758 F.2d
1405, 14005-06 (11th Cir. 1985) (requiring abstention where
plaintiff raised Fourth Amendment § 1983 claims related
to ongoing state proceedings). Any ruling by this Court on
the constitutionality of the execution of the warrant, and
any alleged technical violation of Rule 41, would certainly
interfere with the results reached in the state court
proceeding. See 31 Foster Children v. Bush, 329 F.3d
1255, 1276 (11th Cir. 2003). This the Court will not
do.Dismissal of his suppression-related claims
are appropriate. See Jackson v. Georgia, 273
Fed.Appx. 812, 813-14 (11th Cir. 2008) (affirming sua
sponte dismissal pursuant to 28 U.S.C. § 1915A due
to Younger abstention); Smith v. Mercer, 266
Fed.Appx. 906, 908 (11th Cir. 2008) (“[a] dismissal
pursuant to the Younger doctrine is without prejudice, and
does not preclude later re-filing of the complaint”).
the Court VACATES its prior recommendation
that the Complaint be dismissed without leave to amend. Doc.
7. Burbank will be given an opportunity to file an amended
complaint setting forth his allegations of excessive force
used against him at his arrest. He is
ORDERED to file his Second Amended Complaint
within 14 days of service of this Order or face a
recommendation of dismissal for failure to comply with a
Court Order. The Court further REINSTATES and
AMENDS its prior Report and Recommendation that all
of Burbank's claims arising from agents' failure to
provide him with a copy of the warrant in noncompliance with
Fed. R. Crim. P. 41(f)(1)(C), including both damages and the
exclusion of evidence and testimony from his state criminal
prosecution, be DISMISSED. Doc. 7 at 15,
quoting Ponzi v. Fessenden, 258 U.S. 254, 260 (1922)
(an accused “should not be permitted to use the
machinery of one sovereignty to obstruct his trial in the
courts of the other, unless the necessary operation of such
machinery prevents his having a fair trial.”).
Report and Recommendation (R&R) is submitted to the
district judge assigned to this action, pursuant to 28 U.S.C.
§ 636(b)(1)(B) and this Court's Local Rule 72.3.
Within 14 days of service, any party may file written
objections to this R&R with the Court and serve a copy on
all parties. The document should be captioned
“Objections to Magistrate Judge's Report and
Recommendations.” Any request for ...