United States District Court, D. Nebraska
CASEY J. BASTIAN, Plaintiff,
THE UNITED STATES OF AMERICA, et al., Defendants.
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
Casey J. Bastian, a pro se litigant incarcerated at the
United States Penitentiary in Terre Haute, Indiana, filed
this action regarding the alleged destruction and continued
detention of his property seized by the Federal Bureau of
Investigation (“FBI”) in 2008 in Cedar Rapids,
Iowa. On January 29, 2018, the court ordered Plaintiff to
amend his Complaint to establish that venue is proper in the
District of Nebraska. (Filing No. 15.) After
receiving two extensions of time (Filing Nos. 17,
20), Plaintiff filed an Amended Complaint (Filing
No. 21) on June 20, 2018. On July 2, 2018, Plaintiff
filed a Motion for Temporary Restraining Order
(“TRO”) and Preliminary Injunction (Filing No.
court has carefully reviewed Plaintiff's Amended
Complaint. In light of the liberal construction afforded to
pro se litigants' pleadings, the court finds that
Plaintiff has complied with the court's Memorandum and
Order with regard to alleging proper venue. However,
Plaintiff's Amended Complaint contains claims that cannot
be asserted against all of the Defendants, as discussed
below. 28 U.S.C. § 1915A(b) (court must dismiss
complaint or portion thereof if prisoner raises claims that
are legally frivolous or malicious, fail to state a claim
upon which relief may be granted, or seek monetary relief
from defendant who is immune from such relief).
Plaintiff's Bivens claims may proceed only against
Defendants Metz, Kitzmiller, Johnson, Reinwart, Grunder, and
Unknown Members of the Computer Analysis Response Team in
their individual capacities because Bivens actions
are “only available against federal officers, not
government entities.” Hartje v. F.T.C., 106
F.3d 1406, 1408 (8th Cir. 1997) (suits for damages against
federal government entities are barred by sovereign immunity
despite the permissibility of Bivens claims against
individual federal officers in their individual capacities);
Schutterle v. United States, 74 F.3d 846, 848 (8th
Cir. 1996) (same); see also Olson v. Soc. Sec.
Admin., 243 F.Supp.3d 1037, 1061 (D.N.D.),
aff'd, 709 Fed.Appx. 398 (8th Cir. 2017)
(federal court lacks jurisdiction over Bivens claims
against United States, its agencies, and its employees acting
in official capacities); Bradley v. Outlaw, No.
2:11CV00153, 2011 WL 6937186, at *2 (E.D. Ark. Nov. 30,
2011), report and recommendation adopted, No.
2:11CV00153, 2012 WL 10665 (E.D. Ark. Jan. 3, 2012)
(“Bivens claims must be brought against the individuals
who allegedly violated his constitutional rights.”).
Plaintiff's FTCA claim may proceed only against the
United States. See 28 U.S.C. § 1346(b)(1);
Duncan v. Dep't of Labor, 313 F.3d 445, 447 (8th
Cir. 2002) (federal agencies cannot be sued under FTCA;
United States is proper defendant); Anthony v.
Runyon, 76 F.3d 210, 212-13 (8th Cir. 1996) (“an
action against the United States is the only remedy for
injuries caused by federal employees acting within the scope
of their employment”); Bradley, 2011 WL
6937186, at *2.
Plaintiff's claims under the Administrative Procedure
(“APA”) may proceed to service against Defendants
United States of America; Attorney General of the United
States; Federal Bureau of Investigation in D.C.; Federal
Bureau of Investigation in Omaha, Nebraska; United States
Attorney in Sioux City, Iowa; Office of Professional
Responsibility; and Defendants Thomas Metz, Michael R.
Kitzmiller, Kristi Johnson, Thomas Reinwart, and Eric S.
Grunder in their official capacities. 5 U.S.C. §
701(b)(1) (defining “agency”); 5 U.S.C. §
702 (United States may be named as defendant in federal
action seeking equitable relief against agency alleging that
it or its employees in official capacity acted or failed to
act pursuant to legal authority); F.C.C. v. Fox
Television Stations, Inc., 556 U.S. 502, 525 (2009)
(“The Administrative Procedure Act, which provides
judicial review, makes no distinction between independent and
other agencies, neither in its definition of agency, 5 U.S.C.
§ 701(b)(1), nor in the standards for reviewing agency
action, § 706.”); Sabhari v. Reno, 197
F.3d 938, 943 (8th Cir. 1999) (APA provided foundation to
review suit against Attorney General and Director of
Immigration and Naturalization Service challenging INS's
denial of petition to adjust immigration status); Ali v.
Frazier, 575 F.Supp.2d 1084, 1092 n.5 (D. Minn. 2008)
(citing cases allowing plaintiffs to proceed against FBI
under APA); Radack v. U.S. Dep't of Justice, 402
F.Supp.2d 99 (D.D.C. 2005) (attorney stated claim against
Department of Justice under APA when attorney alleged that
Office of Professional Responsibility violated Privacy Act).
Plaintiff's claims under Bivens, the
Administrative Procedure Act, 5 U.S.C. §§
551, et seq. (Westlaw 2018), and the Federal Tort Claims Act,
28 U.S.C. §§ 2671-2680 (Westlaw 2018) based on
Defendants' unlawful seizure, withholding, and purported
destruction of his property in violation of the Fourth and
Fifth Amendments may proceed to service of process as to all
Defendants. (Filing No. 21 at CM/ECF pp. 59-60 (summary of
claims and relief requested in Amended Complaint).) Although
the court finds that Plaintiff's claims may proceed to
service of process against these Defendants, the court
cautions Plaintiff that this is only a preliminary
determination based on the allegations of the Amended
Complaint and is not a determination of the merits of his
claims or potential defenses thereto.
for TRO & Preliminary Injunction
Motion for Temporary Restraining Order and Preliminary
Injunction (Filing No. 22) requests that the
government be directed to preserve any electronic data in
their possession “derived from FBI case number
305A-OM-51995, including any original or copies (forensic or
otherwise) of said property, ” and to prohibit the
government from “further destroying any non-contraband
intermingled electronic data in their possession.”
(Filing No. 22 at CM/ECF p. 9 (Prayer for Relief).)
65(b)(1) of the Federal Rules of Civil Procedure provides
that a TRO may issue without notice to the adverse party only
(A) specific facts in an affidavit or a verified complaint
clearly show that immediate and irreparable injury, loss, or
damage will result to the movant before the adverse party can
be heard in opposition; and
(B) the movant's attorney certifies in writing any
efforts made to give notice and the reasons why it should not
Plaintiff has not shown that he has made any effort to give
notice to the adverse party, nor has he cited reasons why
such notice should not be required, his motion for a
temporary restraining order must be denied. Fryer v.
Citimortgage, Inc., No. CIV. 09-3197, 2009 WL 3856724,
at *1 (D. Minn. Nov. 17, 2009) (denying plaintiff's
application for TRO when plaintiff failed to certify in
writing any attempts to notify defendant of request for TRO
under the “demanding standard” in Fed. R.
Civ. P. 65(b)(1); “Moreover, [the plaintiff] has
not provided ‘specific facts in an affidavit ...