United States District Court, D. Nebraska
CASEY J. BASTIAN, Plaintiff,
UNITED STATES OF AMERICA, et al., Defendants.
MEMORANDUM AND ORDER
Richard G. Kopf, Senior United States District Judge.
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,  the
Administrative Procedure Act,  and the Federal Tort Claims
to proceed to service of process. (Filing No. 23.) The
Defendants who have been served with process 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.
STANDARD OF REVIEW
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.
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).
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).
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).
part of his Plea Agreement, Bastian agreed to, and initialed,
the following provision:
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
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).
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).
Judgment was entered on September 2, 2009. United States
v. Bastian, No. 2:08CR1327, Filing No. 79 (N.D. Iowa
Sept. 2, 2009).
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 ...