Case 5:20-cv-00248-SLP Document 7 Filed 04/07/20 Page 1 of 10

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
JOSEPH MALDONADOPASSAGE,
Plaintiff,
v.
U.S. FEDERAL WILDLIFE
SERVICE, 1 et al.,
Defendants.

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Case No. CIV-20-248-SLP

REPORT AND RECOMMENDATION
Plaintiff, a federal prisoner proceeding pro se, filed a Complaint for
Violation of Civil Rights. Doc. 1. United States District Judge Scott L. Palk
referred the matter to the undersigned under 28 U.S.C. § 636(b)(1)(B), (C). See
Doc. 4.2

Because Plaintiff challenges the validity of his prosecution and

conviction, the undersigned recommends dismissal.3

Elsewhere, Plaintiff lists “United States Fish & Wildlife Services,” as a
defendant. Doc. 1, Att. A, at 1. Plaintiff seems to use the two terms
interchangeably. “U.S. Federal Wildlife Service” appears to be a misnomer.

1

This report cites court documents by their electronic case filing
designation and pagination. Quotations are verbatim unless otherwise shown.

2

Plaintiff seeks relief at least in part under 42 U.S.C. § 1983. Doc. 1, at 4
¶ II.B. Section 1983 is the exclusive vehicle for vindication of substantive
rights under the United States Constitution against state officials. Id. ¶ II.B.

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On January 22, 2020, after conviction by a jury on two murder-for-hirerelated counts, nine Endangered Species Act violations, and eight Lacey Act
violations.4 Plaintiff received a 264-month sentence. He initiated this action
while his direct appeal remains pending. Doc. 1, at 11.
I.

Screening.

The Court construes the complaint liberally because Plaintiff is not
represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972)
(per curiam); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). If the
Court can reasonably read the complaint “to state a valid claim on which the
plaintiff could prevail, [the Court] should do so despite the plaintiff’s failure to
cite proper legal authority, his confusion of various legal theories, his poor
syntax and sentence construction, or his unfamiliarity with pleading

Further, “a § 1983 action is a proper remedy for a state prisoner who is making
a constitutional challenge to the conditions of his prison life, but not to the fact
or length of his custody.” Preiser v. Rodriguez, 411 U.S. 475, 499 (1973). But
he also states he is suing “Federal officials.” Doc. 1, at 4 ¶ II.A. To the extent
Plaintiff pursues relief under Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971), which provides a cause of action
against federal governmental officials for violations of civil rights equivalent
to the cause of action under Section 1983 against state officials, as explained
below, Plaintiff’s claims also fail.
The Court takes judicial notice of United States v. Maldonado-Passage,
No. 18-CR-227-SLP, Doc. 113. See United States v. Ahidley, 486 F.3d 1184,
1192 n.5 (10th Cir. 2007) (courts have “discretion to take judicial notice of
publicly-filed records . . . concerning matters that bear directly upon the
disposition of the case at hand”).
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requirements.” Hall, 935 F.2d at 1110. However, the Court should not be an
advocate for a pro se litigant. See id.
Under 28 U.S.C. § 1915A, the Court must review the complaint because
Plaintiff is a prisoner and he is seeking redress (at least in part) from officers
or employees of a governmental entity. Under § 1915A(b), the Court must
dismiss the complaint, or any portion of the complaint, that is frivolous or if it
seeks relief from a defendant who is immune from such relief. A legally
frivolous claim is one in which the plaintiff asserts the violation of a legal
interest that clearly does not exist or asserts facts that do not support an
arguable claim. See Neitzke v. Williams, 490 U.S. 319, 324 (1989).
II.

Plaintiff’s complaint.

Plaintiff names (1) U.S. Federal Wildlife Service/U.S. Fish & Wildlife
Services; (2) United States Department of Interior; (3) Mathew Bryant, in his
official capacity as Federal Wildlife Agent; (4) Amanda Leigh Maxfield Green,
in her official capacity as Assistant United States Attorney; (5) Jeffrey Lee
Lowe, (6) James Brandon Garretson; (7) Daniel Ashe; and (8) Allen Glover as
defendants. Doc. 1, at 2-4 & Att. 1, at 1.
He states he has sustained the following injuries: “I have been sexually
assulted, scared from being tied in a chair, was given Bandaids.” Doc. 1, at 9.
He seeks $73,840,000.00 in damages and an additional $15,000,000.00 for false
arrest, false imprisonment, discrimination, malicious prosecution, selective
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enforcement, misinterpreting the law and the death of Shirley Schreibvogel.
Id. & Att. 1, at 10. Plaintiff states his claims did not arise while he was
confined in a jail, prison, or other correctional facility. Doc. 1, at 10. He has
filed no grievances, and states his “appeal is currently ongoing.” Id. at 10-11.
Plaintiff lists his claims under Bivens as “(1) misleading a grand jury;
(2) perjury; (3) conspiracy to commit perjury; (4) false arrest; (5) false
imprisonment; (6) malicious prosecution; (7) loss of personal property; (8) pain
and suffering; (9) mental anguish; (10) the death of Shirley Schreibvogel;
(11) discrimination; (12) selective enforcement; (13) misrepresentation of the
Endangered Species Act; and (14) violating federal defendants oath of office.”
Id. at 4 & Att. 1, at 2-3 (capitalization altered). Elsewhere, where indicating
what federal constitutional or statutory right(s) he claims are being violated in
a Section 1983 action, he states “V, VI, VIII due process, selective enforcement,
discrimination, right to post bond, false imprisonment, false arrest, perjury,
entrapment.” Doc. 1, at 4 ¶ II.B (capitalizations altered). He supports these
claims with an extensive narrative alleging “malicious prosecution, explaining
how he “would not take a plea to the murder for hire charges” and how he was
made to “pay the price for asking for a trial” with the addition of “20 wildlife
charges” in a superseding indictment. Id. Att. 1, at 5-6.

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III.

Analysis.

Bivens actions serve as the proper vehicle to attack unconstitutional
conditions of federal confinement and prison procedures.

Adams v.

Matevousian, 787 F. App’x 541 (10th Cir. 2019) (citing Palma-Salazar v. Davis,
677 F.3d 1031, 1033 (10th Cir. 2012)).
But here, Plaintiff largely challenges the circumstances surrounding his
allegedly “false arrest,” the criminal investigation (including his “intentional
entrapment”), his allegedly “malicious prosecution,” his trial proceedings with
purportedly “perjured testimony,” his “false conviction,” and his “false
imprisonment.” Doc. 1, Att. 1, at 3-10. In doing so, Plaintiff challenges the
validity of his conviction.

When a plaintiff challenges the legality of a

confinement, a party must file the case as a habeas corpus proceeding rather
than under Bivens or 42 U.S.C. § 1983. See Heck v. Humphrey, 512 U.S. 477,
481 (1994) (“[H]abeas corpus is the exclusive remedy for a state prisoner who
challenges the fact or duration of his confinement and seeks immediate or
speedier release, even though such a claim may come within the literal terms
of § 1983.”) (citing Preiser, 411 U.S. at 488-90). Because Plaintiff is a federal
prisoner, he must raise such challenges to his confinement in a motion to
vacate, set aside, or correct sentence under 28 U.S.C. § 2255. United States v.
Le, 412 F. App’x 148, 149-50 (10th Cir. 2011) (“For a federal prisoner, the

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exclusive remedy for testing the validity of a judgment and sentence . . . is that
provided in 28 U.S.C. § 2255.”).
Plaintiff seeks damages based on his prosecution and conviction. If a
judgment for damages necessarily would imply the invalidity of a criminal
conviction or sentence, a plaintiff may not bring such action until the conviction
or sentence has been “reversed on direct appeal, expunged by executive order,
declared invalid by an [authorized tribunal], or called into question by the
issuance of a federal habeas writ.” Heck, 512 U.S. at 486-87. Heck applies to
Bivens actions. See Crow v. Penry, 102 F.3d 1086, 1087 (10th Cir. 1996) (per
curiam).

Plaintiff does not allege that he has invalidated his conviction

through a writ of habeas corpus, and as stated above, he has a direct appeal
pending.
Mindful of its obligation to construe liberally Plaintiff’s allegations, the
Court must consider whether to recast his Bivens complaint as a motion to
vacate, set aside, or correct sentence under 28 U.S.C. § 2255. To do so, the
Court must notify the pro se litigant that it intends to
recharacterize the pleading, warn the litigant that this
recharacterization means that any subsequent § 2255 motion will
be subject to the restrictions on “second or successive” motions, and
provide the litigant an opportunity to withdraw the motion or to
amend it so that it contains all the § 2255 claims he believes he
has.
Castro v. United States, 540 U.S. 375, 383 (2003).

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So, this Court should generally not sua sponte recharacterize a prisoner’s
petition for post-conviction relief as a § 2255 petition.

United States v.

Kelly, 235 F.3d 1238, 1241 (10th Cir. 2000) (reaching this conclusion “largely
out of concern that a subsequent § 2255 motion would be considered successive”
and barred under AEDPA except “in very limited circumstances”). Because
Plaintiff’s appeal is pending, the Court should not recharacterize his complaint
as a petition. United States v. Cook, 997 F.2d 1312, 1319 (10th Cir. 1993)
(“Absent extraordinary circumstances, the orderly administration of criminal
justice precludes a district court from considering a § 2255 petition while
review of the direct appeal is still pending.”).
The Court also notes that Plaintiff’s complaint suffers from other
deficiencies. If the Court can determine from the complaint that he is suing
improper parties for damages, the claims will be dismissed with prejudice.
See Carbajal v. Holman, 485 F. App’x 332, 333 (10th Cir. 2012).
Plaintiff sues Defendant Maxfield Green because of her involvement in
his criminal proceedings. Plaintiff’s allegations against Defendant Maxfield
Green involve no more than acts that are “‘intimately associated with the
judicial process’ such as initiating and pursuing a criminal prosecution.” Snell
v. Tunnell, 920 F.2d 673, 686 (10th Cir. 1990) (quoting Imbler v.
Pachtman, 424 U.S. 409, 430 (1976)); see Doc. 1, at 7 & Att. 1, at 9. He may
not sue the individual prosecutor in this Bivens action. Defendant Maxfield
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Green, an Assistant United States Attorney, is entitled to absolute immunity
as a federal prosecutor. See Imbler, 424 U.S. at 419 n.13 (“[A]bsolute immunity
defeats a suit at the outset, so long as the official’s actions were within the
scope of the immunity.”). Plaintiff’s claims against Defendant Maxfield Green
are “legally frivolous” based on absolute immunity and the Court should
dismiss them with prejudice under 28 U.S.C. § 1915A(b)(2).
As for Plaintiff’s claim against Defendant Mathew Bryant for
“wrongdoing while operating in his [] official capacity as a United States
agent,” it “operates as a claim against the United States” and should also be
dismissed with prejudice. Farmer v. Perrill, 275 F.3d 958, 963 (10th Cir. 2001).
The federal government’s “sovereign immunity means that the United States
cannot be sued without its consent.” Merrill Lynch, Pierce, Fenner & Smith,
Inc. v. Jacks, 960 F.2d 911, 913 (10th Cir. 1992). Federal courts lack subject
matter jurisdiction over claims against the United States where the United
States has not waived its sovereign immunity. Iowa Tribe of Kan. & Neb. v.
Salazar, 607 F.3d 1225, 1232 (10th Cir. 2010). So, the Court should dismiss
with prejudice any claims against Defendant “Federal Wildlife Agent” Bryant
in his official capacity under 28 U.S.C. § 1915A(b)(2).
Similarly, Congress has not extended the Bivens remedy to federal
agencies or the United States. Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 7172 (2001); FDIC v. Meyer, 510 U.S. 471, 486 (1994); Smith v. United States, 561
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F.3d 1090, 1093 (10th Cir. 2009) (holding “Bivens claims cannot be asserted
directly against either the United States or federal officials in their official
capacities or against federal agencies”). Plaintiff has identified no waiver of
this immunity.

To the extent Plaintiff raises claims against Defendants

United States Department of the Interior and the Department of Fish &
Wildlife the claims should be dismissed with prejudice under 28 U.S.C. §
1915A(b)(2).
IV.

Recommendation and right to object.

For these reasons, the undersigned recommends
(1)

to the extent Plaintiff seeks relief against Defendant Maxfield
Green based on her actions within the scope of her prosecutorial
duties, such claims should be dismissed with prejudice based on
absolute immunity under 28 U.S.C. § 1915A(b)(2);

(2)

similarly, the Court should dismiss with prejudice any claims
against Defendant Bryant while operating in his official capacity
as a United States agent under 28 U.S.C. § 1915A(b)(2);

(3)

the Court should dismiss with prejudice any claims against
Defendants United States Department of the Interior and the
Department of Fish & Wildlife under 28 U.S.C. § 1915A(b)(2); and

(4)

the Court should dismiss Plaintiff’s remaining claims without
prejudice under 28 U.S.C. § 1915A(b)(1).
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The undersigned advises Plaintiff of his right to file an objection to this
Report and Recommendation with the Clerk of Court on or before April 28,
2020, under 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2). The undersigned
further advises Plaintiff that failure to file a timely objection to this Report and
Recommendation waives his right to appellate review of both factual and legal
issues contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th
Cir. 1991).
This Report and Recommendation disposes of all issues and terminates
the referral to the undersigned Magistrate Judge in the captioned matter.
ENTERED this 7th day of April, 2020.

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