United States District Court, W.D. Texas, Austin Division
REPORT AND RECOMMENDATION OF THE UNITED STATES
HIGHTOWER, UNITED STATES MAGISTRATE JUDGE.
HONORABLE ROBERT PITMAN UNITED STATES DISTRICT JUDGE.
this Court are: Defendants' Motion to Dismiss, filed on
May 1, 2019 (Dkt. No. 18); Plaintiff's Demand for Return
of Property, filed on May 20, 2019 (Dkt. No. 16); and the
parties' related response and reply briefs. On July 15,
2019, the District Court referred the above motions to the
undersigned Magistrate Judge for resolution and Report and
Recommendation pursuant to 28 U.S.C. § 636(b)(1),
Federal Rule of Civil Procedure 72 and Rule 1 of Appendix C
of the Local Rules of the United States District Court for
the Western District of Texas (“Local Rules”).
October 22, 2018, Jonathan Gebhart, Special Agent with the
Internal Revenue Service Criminal Investigation Division
(“IRS-CID”), submitted a search warrant
application to United States Magistrate Judge Mark Lane,
pursuant to Federal Rule Criminal Procedure 41(c), requesting
to search the home and property of David Schanzle as part of
an ongoing criminal investigation into an alleged tax evasion
scheme allegedly perpetrated by Schanzle. The warrant
application incorporated the following attachments: (1) a
32-page affidavit of probable cause prepared by Agent
Gebhart; (2) “Attachment A, ” which described the
property and structures to be searched; and (3)
“Attachment B, ” which described the evidence,
fruits and instrumentalities to be seized during the search.
See Sealed Dkt. No. 3 in 1:18-MJ-685-ML. Magistrate
Judge Lane signed the warrant application and affidavit of
probable cause and issued the search warrant
(“Warrant”) on October 22, 2018. See
October 24, 2018, at approximately 10:30 a.m., Agent Gebhart
and several other federal agents executed the Warrant and
conducted a search of Schanzle's home and business,
Gardens of the Ancients, located at 4800 Yager Lane, Manor,
TX 78652. Schanzle alleges that when the federal agents
arrived, he requested a copy of the Warrant. Schanzle
contends that he was presented with a one-page copy of the
Warrant that (1) failed to have the affidavit of probable
cause attached to it, and (2) failed to describe the name of
the person or the description of the property to be searched.
Schanzle alleges the federal agents proceeded to perform a
search of his property and seized computers, external hard
drives, iPads, a cell phone, documents and records, gold and
silver coins “and took almost everything except
Plaintiff's guns and his furniture.” Dkt. No. 2 at
p. 3 ¶ 12. At approximately 1:20 p.m., the Agents
completed their search and presented Schanzle with a copy of
the inventory of the property taken.
October 30, 2018, Schanzle filed this lawsuit, pursuant to
Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971), against Magistrate Judge
Lane, Assistant United States Attorney Michael Galdo, FBI
Special Agent Susana Haberman, IRS Special Agents Laurel
Vant, Jonathan Gebhart and James Neff, and “6 to 8
unknown agents” (“Defendants”).
Schanzle's Amended Complaint primarily alleges that the
issuance of the Warrant and the manner of its execution
violated his constitutional rights. Specifically, Schanzle
alleges: (1) the Warrant was invalid under the particularity
requirement of the Fourth Amendment because the copy he was
provided failed to describe the name of the person to be
searched and the description of the property searched, and
the affidavit of probable cause; (2) the Defendants'
execution of the Warrant violated his Fourth Amendment
rights; (3) Agent Gebhart's participation in the search
exceeded his authority under 26 U.S.C. § 7608; and (4)
the Defendants violated his rights under the Eighth
Amendment. Schanzle seeks to recover $50, 000 to $100, 000 in
monetary damages from each Defendant, a return of his
property, and attorneys' fees and costs.
1, 2019, Defendants filed the instant Motion to Dismiss
pursuant to Federal Rules of Civil Procedure 12(b)(1),
12(b)(5) and 12(b)(6), arguing that Schanzle's Amended
Complaint should be dismissed for lack of subject matter
jurisdiction, insufficient service of process, and failure to
state a claim. Because the Court finds that the Motion to
Dismiss should be granted under Rule 12(b)(6), the Court need
not address Defendants' alternative
Rule of Civil Procedure 12(b)(6) allows a party to move to
dismiss an action for failure to state a claim upon which
relief can be granted. In deciding a Rule 12(b)(6) motion to
dismiss for failure to state a claim, “[t]he court
accepts all well-pleaded facts as true, viewing them in the
light most favorable to the [nonmovant].” In re
Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th
Cir. 2007) (internal quotation marks omitted). The Supreme
Court has explained that a complaint must contain sufficient
factual matter “to state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “A claim has
facial plausibility when the [nonmovant] pleads factual
content that allows the court to draw the reasonable
inference that the [movant] is liable for the misconduct
alleged.” Ashcroft, 556 U.S. at 678. The
court's review is limited to the complaint, any documents
attached to the complaint, and any documents attached to the
motion to dismiss that are central to the claim and
referenced by the complaint. Lone Star Fund V (U.S.),
L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir.
U.S. Magistrate Judge Lane
alleges that United States Magistrate Judge Lane violated his
Fourth Amendment rights by signing the Warrant without
probable cause and without attaching a description of the
persons or property to be searched or seized. Schanzle seeks
to recover $50, 000 from Judge Lane.
well settled law that a judge enjoys absolute immunity from
liability for damages for judicial acts performed within his
or her jurisdiction. Pierson v. Ray, 386 U.S. 547
(1967). “Few doctrines were more solidly established at
common law than the immunity of judges from liability for
damages for acts committed within their judicial
jurisdiction.” Id. at 553-54. “This
immunity applies even when the judge is accused of acting
maliciously and corruptly, and it is not for the protection
or benefit of a malicious or corrupt judge, but for the
benefit of the public, whose interest it is that the judges
should be at liberty to exercise their functions with
independence and without fear of consequences.”
Id. at 554 (internal quotations and citations
omitted). The doctrine of absolute judicial immunity protects
judges not only from liability, but also from suit.
Mireles v. Waco, 502 U.S. 9, 11 (1991). Motive of
the judicial officer is irrelevant when considering absolute
immunity. See Mitchell v. McBryde, 944 F.2d 229, 230
(5th Cir. 1991) (“The judge is absolutely immune for
all judicial acts not performed in clear absence of all
jurisdiction, however erroneous the act and however evil the
motive.”). Judges acting in their official capacity
also enjoy absolute immunity from suits for injunctive relief
because the Federal Courts Improvement Act of 1996 extended
the doctrine of judicial immunity to injunctive relief and
damages. Machetta v. Moren, 726 Fed.Appx. 219, 220
(5th Cir. 2018).
judicial immunity is overcome in only two rather narrow sets
of circumstances: First, a judge is not immune from liability
for nonjudicial actions, i.e., actions not taken in
the judge's judicial capacity; and second, a judge is not
immune for actions, though judicial in nature, taken in
complete absence of all jurisdiction. Mireles, 502
U.S. at 11-12. “A judge's acts are judicial in
nature if they are ‘normally performed by a judge'
and the parties affected ‘dealt with the judge in his
judicial capacity.'” Boyd v. Biggers, 31
F.3d 279, 285 (5th Cir. 1994) (quoting Mireles, 502
U.S. at 12). “The limitation on judicial immunity
applies not to improper exercises of jurisdiction, or even to
conduct taken in ‘excess of jurisdiction,' but only
to conduct taken categorically without jurisdiction, like the
conduct of ‘a probate court, invested only with
authority over wills and the settlement of estates of
deceased persons . . . [that] proceed[s] to try parties for
public offences.'” Creech v. Pater, 701
Fed.Appx. 456, 460 (6th Cir. 2017) (quoting Bradley v.
Fisher, 80 U.S. 335, 351-52 (1871)).
case at bar, Judge Lane was clearly acting in his judicial
capacity when he signed the Warrant at issue. See Burns
v. Reed, 500 U.S. 478, 492 (1991) (stating that
“the issuance of a search warrant is unquestionably a
judicial act”); Creech, 701 Fed.Appx. at 460
(“signing a Warrant is a function normally performed by
a judge”); Raab v. McLoed, 2019 WL 2511221, at
*2 (W.D. Mich. June 18, 2019) (“There is no doubt that
approving a search warrant was a judicial act and that Judge
Blubaugh was acting within his jurisdiction in doing so.
Accordingly, Judge Blubaugh is absolutely immune from
liability.”); Sadowski v. Dyer, 2019 WL
2085994, at *5 (D. Conn. May 13, 2019) (“[I]ssuing an
arrest or search warrant is a judicial act . . . .”).
Schanzle does not complain of any actions taken by Judge Lane
that were nonjudicial in nature; nor does he show that Judge
Lane was acting in the clear absence of all jurisdiction.
Accordingly, Judge Lane is entitled to absolute judicial
AUSA Michael Galdo
alleges that AUSA Michael Galdo, the federal prosecutor
responsible for seeking the Warrant in this case, violated
his Fourth Amendment rights because he “should have
known that a warrant without a description with particularity
of the place to be searched, and a detailed description of
the things to be seized, is an invalid warrant.” Dkt.
No. 17 at p. 5. Schanzle seeks $50, 000 in damages against
like Defendant Galdo enjoy absolute immunity from civil
rights actions seeking monetary damages related to
“initiating a prosecution and . . . presenting the
State's case” as well as any activities
“intimately associated with the judicial phase of the
criminal process.” Esteves v. Brock, 106 F.3d
674, 677 (5th Cir. 1997) (quoting Imbler v.
Pachtman, 424 U.S. 409, 430-31 (1976)). The Supreme
Court has held that a prosecutor has absolute immunity for an
appearance before a judge in support of an application for a
search warrant and the presentation of evidence in support of
a motion for a search warrant because those actions
“clearly involve the prosecutor's ‘role as
advocate for the State,' rather than his role as
‘administrator or investigative officer.'”
Burns v. Reed, 500 U.S. 478, 493 (1991) (quoting
Imbler, 424 U.S. at 430-31); see also Kalina v.
Fletcher, 522 U.S. 118, 129 (1997) (finding that a
prosecutor's activities in connection with the
preparation and filing of the information and the motion for
an arrest warrant are protected by absolute immunity);
Richardson v. Scholz, 194 F.3d 1309 (5th Cir. 1999)
(finding that district attorneys were entitled to
prosecutorial immunity from plaintiff's claim that the
defendants conspired to obtain a search warrant illegally).
Schanzle alleges no facts against Defendant Galdo that would
destroy his absolute immunity and Schanzle's claims
against Defendant Galdo should therefore be dismissed.
noted, Schanzle filed this lawsuit pursuant to Bivens v.
Six Unknown Named Agents of Fed. Bureau of Narcotics,
403 U.S. 388, 389 (1971). In Bivens, the Supreme
Court held that an individual injured by a federal
agent's alleged violation of the individual's
constitutional rights may bring an action for damages against
the agent, providing deterrence against and relief for the
deprivation of federally guaranteed rights caused by a person
acting under color of federal law. A Bivens action
mirrors those brought pursuant to 42 U.S.C. § 1983,
which applies to a person acting under color of state law.
Izen v. Catalina, 398 F.3d 363, 367 n.3 (5th Cir.
2005). To state a Bivens claim, Schanzle must allege
sufficient facts to establish that the Defendants are federal
actors and that the Defendants, while acting under color of
federal law, violated Schanzle's rights under the
Constitution or laws of the United States. Bivens,
403 U.S. at 395-96. Bivens provides a cause of
action against federal agents only in their individual
capacities and requires a showing of personal involvement.
Correctional Servs. Corp. v. Malesko, 534 U.S. 61,
70-71 (2001); Cronn v. Buffington, 150 F.3d 538, 544
(5th Cir. 1998).
argue that all of Schanzle's claims in this case should
be dismissed because Defendants are entitled to qualified
immunity. As with § 1983 actions against state and local
officials, a claimant seeking relief under Bivens
must overcome the federal official's qualified immunity.
Alexander v. Verizon Wireless Servs., L.L.C., 875
F.3d 243, 253 (5th Cir. 2017). “The doctrine of
qualified immunity shields officials from civil liability so
long as their conduct ‘does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.'” Mullenix
v. Luna, 136 S.Ct. 305, 308 (2015) (quoting Pearson
v. Callahan, 555 U.S. 223, 231 (2009)).
invoked, a plaintiff bears the burden of rebutting qualified
immunity by showing: (1) that the officials violated a
statutory or constitutional right, and (2) that the right was
“‘clearly established' at the time of the
challenged conduct.” Ashcroft v. al-Kidd, 563
U.S. 731, 735 (2011) (quoting Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982)); see also McClendon v. City of
Columbia, 305 F.3d 314, 323 (5th Cir. 2002) (en banc)
(per curiam) (“When a defendant invokes qualified
immunity, the burden is on the plaintiff to demonstrate the
inapplicability of the defense.”). Law is
“clearly established” for these purposes only if
“the contours of the right [were] sufficiently clear
that a reasonable official would understand that what he
[was] doing violate[d] that right.” Anderson v.
Creighton, 483 U.S. 635, 640 (1987). An official who
violates a constitutional right is still entitled to
qualified immunity if his or her actions were objectively
reasonable. Spann v. Rainey, 987 F.2d 1110, 1114
(5th Cir. 1993). At bottom, a plaintiff must show that
“no reasonable officer could have believed his actions
were proper.” Brown v. Callahan, 623 F.3d 249,
253 (5th Cir. 2010).
Court will address each of Schanzle's claims to determine
whether he has demonstrated that the federal agents violated
a statutory or constitutional right and that the right was