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Bastian v. United States

United States District Court, D. Nebraska

March 5, 2019

CASEY J. BASTIAN, Plaintiff,
v.
UNITED STATES OF AMERICA, et al., Defendants.

          MEMORANDUM AND ORDER

          Richard G. Kopf, Senior United States District Judge.

         After initial review of Plaintiff's Complaint and Amended Complaint-which allege that the Defendants unlawfully withheld and then destroyed non-contraband private electronic data that was located on the hard drive of Plaintiff's Sony laptop that was lawfully seized-this court allowed Plaintiff's claims under Bivens, [1] the Administrative Procedure Act, [2] and the Federal Tort Claims Act[3] to proceed to service of process. (Filing No. 23.) The Defendants who have been served with process[4] have filed a Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) or, in the alternative, a Motion for Summary Judgment (Filing No. 47), and Plaintiff has responded to the Defendants' Motion. (Filing No. 58.) For the reasons that follow, the Defendants' Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(6) shall be granted.

         I. STANDARD OF REVIEW

         For the purposes of a motion to dismiss, the court must “assume that well-pleaded factual allegations in the complaint are true and construe the complaint, and all reasonable inferences arising therefrom, most favorably to the pleader.” Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990) (internal quotation marks and citation omitted). The court will not, however, “blindly accept the legal conclusions drawn by the pleader from the facts.” Id.

         II. FACTS

         1. On April 16, 2008, investigators executed a search warrant on Plaintiff Casey Bastian's residence in Dubuque, Iowa, and seized his Sony laptop computer. Investigators analyzed the laptop's hard drive and located 68 video files and between 100 and 150 image files of child pornography. See Sentencing Memorandum, United States v. Bastian, No. 2:08CR1327, Filing No. 73, p. 11 (N.D. Iowa Aug. 20, 2009).[5]

         2. A grand jury returned a three-count indictment against Bastian for sexual exploitation of a child, receipt of child pornography, and possession of child pornography. United States v. Bastian, No. 2:08CR1327, Filing No. 1 (N.D. Iowa Oct. 22, 2008).

         3. Bastian pled guilty to charges of sexual exploitation of a child and receipt of child pornography. United States v. Bastian, No. 2:08CR1327, Filing No. 25-2 (N.D. Iowa Dec. 11, 2008). Bastian's guilty plea was accepted by the district court. United States v. Bastian, No. 2:08CR1327, Filing No. 27 (N.D. Iowa Dec. 31, 2008).

         4. As part of his Plea Agreement, Bastian agreed to, and initialed, the following provision:

         ABANDONMENT AND RELEASE OF PROPERTY

14.CJB The defendant agrees to forfeit and abandon any and all claim to items seized by law enforcement from the defendant during the investigation of this case. The defendant waives any and all right to this property and stipulates to the forfeiture (under 18 U.S.C. §§ 2253 and/or 2254) and/or the abandonment of this property. The defendant also waives any and all right to the notice of the forfeiture (under 18 U.S.C. §§ 2253 and/or 2254) and/or the abandonment of this property. The defendant agrees not to contest that forfeiture or abandonment of this property. The defendant understands that from this date forward any local, state, or federal law enforcement agency may take custody of and use, dispose, and transfer these items in any way the agency deems appropriate.

United States v. Bastian, No. 2:08CR1327, Filing No. 25-2, pp. 5-6 (N.D. Iowa Dec. 11, 2008) (entire agreement in bold font).

         5. Five days after his guilty plea, Bastian moved to withdraw it. The motion was denied following an evidentiary hearing. United States v. Bastian, No. 2:08CR1327, 2009 WL 1270018 (N.D. Iowa May 6, 2009).

         6. Bastian was sentenced to a total term of imprisonment of 600 months. United States v. Bastian, 650 F.Supp.2d 849 (N.D. Iowa 2009).

         7. Judgment was entered on September 2, 2009. United States v. Bastian, No. 2:08CR1327, Filing No. 79 (N.D. Iowa Sept. 2, 2009).

         8. Bastian appealed the denial of the motion to withdraw his plea and his sentence. United States v. Bastian, No. 2:08CR1327, Filing No. 80 (N.D. Iowa Sept. 2, 2009). The Eighth Circuit Court of Appeals ...


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