United States District Court, M.D. Florida, Jacksonville Division
RAIMUNDO A. HOGAN, Plaintiff,
DEREK A. PRATICO, Defendant.
ORDER OF DISMISSAL WITHOUT PREJUDICE
J. DAVIS United States District Judge.
a federal inmate, initiated this action by filing a pro se
Civil Rights Complaint (Doc. 1; Compl.) and a motion to
proceed as a pauper (Doc. 3). He names one Defendant: Derek
A. Pratico, a detective with the Jacksonville Sheriff's
Office (JSO). Plaintiff asserts a Fourth Amendment violation
against Detective Pratico for intentionally and knowingly
giving a false statement to the grand jury “during his
application for an arrest warrant.” Compl. at 3-4. As
relief, Plaintiff seeks compensatory damages in the amount of
$5, 000, 000 for the Fourth Amendment violation and nominal
damages because his “fundamental rights [have] been
violated.” Id. at 7.
the second complaint Plaintiff has filed against Detective
Pratico related to his federal conviction. See Case
No. 3:19-cv-727-J-39JBT (dismissed because Detective Pratico
is entitled to absolute immunity for his grand jury
testimony).Plaintiff again alleges Detective Pratico
knowingly provided false testimony before the grand jury.
See Compl. at 5. According to Plaintiff, Detective
Pratico falsely testified to the grand jury that the federal
indictment correctly referenced the serial number of the gun
Plaintiff was charged with possessing. Id.
Plaintiff also references Detective Pratico's
“application for a [f]ederal [a]rrest warrant, ”
suggesting Pratico provided false information in support of a
warrant affidavit. Id. at 6.
support of his allegations, Plaintiff offers three exhibits.
Exhibit A is a report of the U.S. Department of Justice,
Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF),
prepared at the request of Detective Pratico, in which the
reporting agent concludes a gun with serial number KTV892 had
moved in interstate commerce (Doc. 2-1). Exhibit B is a
second ATF report summarizing an interview with a witness to
the incident for which Plaintiff was arrested, which notes a
gun with serial number KYU892 was recovered at the scene
(Doc. 2-2). Exhibit C is a partial transcript of Detective
Pratico's grand jury testimony dated September 21, 2016,
in which Pratico affirmed the serial number of the gun
referenced in the indictment (KTV892) was correct (Doc. 2-3;
Ex. C.). It is this testimony Plaintiff contends was false
and led to his arrest. See Compl. at 5-6.
Prison Litigation Reform Act (PLRA) requires a district court
to dismiss a complaint if the court determines the action is
frivolous, malicious, or fails to state a claim on which
relief can be granted. See 28 U.S.C. §
1915(e)(2)(B). With respect to whether a complaint
“fails to state a claim on which relief may be granted,
” the language of the PLRA mirrors the language of Rule
12(b)(6), Federal Rules of Civil Procedure, so courts apply
the same standard in both contexts. Mitchell v.
Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997); see
also Alba v. Montford, 517 F.3d 1249, 1252 (11th Cir.
2008). “To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citing Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)).
is a federal inmate seeking relief with respect to a federal
criminal prosecution and conviction. As such, his claim
arises under Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388 (1971). An action
under Bivens is similar to an action under 42 U.S.C. §
1983 except that a Bivens action is maintained against
federal officials while a § 1983 case is against state
officials. See Abella v. Rubino, 63 F.3d
1063, 1065 (11th Cir. 1995). Generally, when analyzing a
Bivens claim, courts apply case law interpreting § 1983
cases. See, e.g., Solliday v. Fed. Officers, 413
Fed.Appx. 206, 209 (11th Cir. 2011).
Bivens claim is subject to dismissal under this Court's
screening obligation. To the extent Plaintiff's claim
against Detective Pratico is based solely on Pratico's
grand jury testimony, Detective Pratico enjoys absolute
immunity even if his testimony was false. The Supreme Court
has held, “a grand jury witness has absolute immunity
from any § 1983 claim based on the witness'
testimony.” Rehberg v. Paulk, 566 U.S. 356,
369 (2012), aff'g 611 F.3d 828 (11th Cir. 2010).
Accord Jones v. Cannon, 174 F.3d 1271, 1281 (11th
Cir. 1999) (“Police officers enjoy the same absolute
immunity as lay witnesses for their testimony at trial or in
front of the grand jury.”) (internal citation omitted);
Kelly v. Curtis, 21 F.3d 1544, 1553 (11th Cir. 1994)
(emphasizing the Eleventh Circuit “has held that
testimony before a grand jury is protected by absolute
extent Plaintiff contends Detective Pratico provided false
information in support of an application for an arrest
warrant, the Court takes judicial notice that Detective
Pratico did not apply for an arrest warrant of Plaintiff.
Rather, the United States Attorney's Office investigated
the case and charged Plaintiff by federal indictment.
See Case No. 3:16-cr-139-J-32JRK. On September 21,
2016, the day Detective Pratico testified, the grand jury
returned an indictment against Plaintiff charging him with
possession of a firearm that affected interstate commerce
after having been convicted of a felony. See Doc. 1,
Case No. 3:16-cr-139-J-32JRK. Also on September 21, 2016, an
Assistant United States Attorney filed a “motion for
capias” based upon the return of the indictment.
See Doc. 2, Case No. 3:16-cr-139-J-32JRK.
though Detective Pratico's grand jury testimony supported
the motion for Plaintiff's arrest, Detective Pratico
still enjoys absolute immunity. The Eleventh Circuit has
“expressly rejected[ed] carving out an exception to
absolute immunity for grand jury testimony, even if false and
even if [the detective] were construed to be a complaining
witness.” Rehberg, 611 F.3d at 839-40 (quoting
and altering Jones, 174 F.3d at 1287 n.10).
Plaintiff's conviction has not been
invalidated. As such, he cannot maintain a civil rights
action against Detective Pratico challenging his conviction
where a judgment in his favor “would necessarily imply
the invalidity of his conviction.” See Heck v.
Humphrey, 512 U.S. 477, 487 (1994).
case is DISMISSED without prejudice under 28
U.S.C. § 1915(e)(2)(B) .
Clerk shall enter judgment dismissing this
case without prejudice, terminate any ...