                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


ROBERT RUBINO,                                       )
                                                     )
                       Plaintiff,                    )
                                                     )
                       v.                            ) Civ. Action No. 15-2151 (RMC)
                                                     )
UNITED STATES OF AMERICA et al.,                     )
                                                     )
                       Defendants.                   )



               Plaintiff Robert Rubino is a California state prisoner incarcerated at a correctional

facility in San Diego, California. Mr. Rubino filed a lawsuit pro se in the United States District

Court for the Northern District of California against California Attorney General Kamala D.

Harris and several federal judges in the Ninth Circuit Court of Appeals and in the Southern,

Northern, Central and Eastern districts of California. In May 2015, Mr. Rubino filed an

amended complaint that named Harris as the sole California defendant and added the United

States and United States Attorney General Loretta Lynch. On December 7, 2015, the Northern

District of California severed the complaint and transferred the claims against the United States

and Attorney General Lynch to this Court pursuant to 28 U.S.C. § 1406(a). The United States

and Lynch have moved to dismiss Mr. Rubino’s First Amended Complaint [Dkt. 32-1] under

Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons explained below, the

motion will be granted.

                                       I. BACKGROUND

               A California jury convicted Mr. Rubino in October 2006 of sixteen counts of lewd

acts upon a minor and two counts of displaying harmful matter to a minor with the intent to


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seduce the minor. The San Diego Superior Court sentenced Mr. Rubino on February 22, 2007,

to an aggregate prison sentence of 73 years to life. See Rubino v. Allison, No. 11cv665 WQH

WVG, 2012 WL 760709, at *1 (S.D. Cal. Mar. 6, 2012); Mot. to Dismiss at 2. Mr. Rubino has

filed multiple habeas petitions in state and federal courts in California without success. He is

now barred under the successive habeas statute, 28 U.S.C. § 2244(b), from pursuing habeas relief

in federal court without first obtaining permission from the Ninth Circuit.

               In his Amended Complaint, Mr. Rubino invokes the Administrative Procedure

Act (“APA”), 5 U.S.C. § 702, and 42 U.S.C. §§ 1983-85, and he purports to bring a class action.1

Mr. Rubino states that the “nine Doe plaintiffs are representative of the class that have all been

convicted of committing non-violent ‘any touching’ acts without intent that ‘actually is not

required’ to convict anyone of California Penal Code 288.” Compl. at 2. He claims that the

California statute under which he was convicted is “unconstitutionally void for both vagueness

and overbreadth as so construed;” thus “both declaratory and injunctive relief are sought.” Id. In

addition, Mr. Rubino challenges on constitutional grounds various provisions of the Prison

Litigation Reform Act (“PLRA”) and the Antiterrorrism and Effective Death Penalty Act

(“AEDPA”), including the successive habeas statute and AEDPA’s one-year statute of

limitations. See Head v. Wilson, 792 F.3d 102, 106 (D.C. Cir. 2015) (describing AEDPA as “the

federal court’s ‘labyrinth’ collateral procedure,” the “strictures” with which a would-be federal

habeas petitioner [ ] must comply”) (quoting Maynard v. Boone, 468 F.3d 665, 669 (10th Cir.


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  Mr. Rubino cannot press the claims of other prisoners because he is not a licensed attorney. See
28 U.S.C. § 1654 (“[P]arties may plead and conduct their own cases [in federal court] personally
or by [licensed] counsel[.]”); Vazquez v. Fed. Bureau of Prisons, 999 F. Supp. 2d 174, 177 (D.D.C.
2013) (“As a general rule applicable here, an individual appearing pro se may not represent other
individuals in federal court, and courts have routinely denied a prisoner’s request to represent a
class of prisoners without the assistance of counsel.”) (citations omitted)).


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2006)).

                                     II. LEGAL STANDARD

               A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to

state a claim challenges the adequacy of a complaint on its face. Fed. R. Civ. P. 12(b)(6). A

complaint must be sufficient “to give a defendant fair notice of what the . . . claim is and the

grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation and

internal quotation marks omitted). Although a complaint does not need detailed factual

allegations, a plaintiff’s obligation to provide the grounds of his entitlement to relief “requires

more than labels and conclusions, and a formulaic recitation of the elements of a cause of action

will not do.” Id.

               To survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to state a claim for relief that is “plausible on its face.” Id. at 570. A court must

treat the complaint’s factual allegations as true, “even if doubtful in fact.” Id. at 555 (citation

and internal quotation marks omitted). But a court need not accept as true legal conclusions set

forth in a complaint. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In deciding a motion under

Rule 12(b)(6), a court may consider the facts alleged in the complaint, documents attached to the

complaint as exhibits or incorporated by reference, and public matters about which the court may

take judicial notice. Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007).

                                          III. ANALYSIS

               The transferring court construed Mr. Rubino’s claims as brought under Bivens v.

Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971)—the authority

for bringing personal-capacity lawsuits against federal officials for constitutional violations. But

Mr. Rubino contends that the United States and Attorney General Lynch “are sued in their


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political and official capacities for enacting and applying AEDPA’s and the PLRA’s

unconstitutional as applied Statutes and Rules to deny either 42 U.S.C. 1983, or habeas corpus

review as required by the First Amendment and Article 1, Section 9, Clause 2 of the U.S. Const.”

Am. Compl. at 16. In addition, Mr. Rubino does not seek a Bivens remedy, which “is [money]

damages or nothing.” Davis v. Passman, 442 U.S. 228, 245 (1979); accord Simpkins v. D.C.

Gov’t, 108 F.3d 366, 369 (D.C. Cir. 1997) (“Bivens actions are for damages.”). Consequently,

the transferred Bivens claim will be dismissed under Rule 12(b)(6).

                Mr. Rubino’s claim against Lynch in her official capacity is generally “another

way of pleading an action against [the United States].” Kentucky v. Graham, 473 US 159, 165-

66 (1985) (citing Monell v. N.Y. City Dep’t of Soc. Servs., 436 U.S. 658 (1978)). Mr. Rubino’s

official-capacity claim rests on an erroneous premise. Congress (not the Attorney General)

enacts laws such as the AEDPA and PLRA, and the federal courts (not the Attorney General)

generally “apply the law as it reads.” Flatow v. Islamic Republic of Iran, 201 F.R.D. 5, 9

(D.D.C. 2001). Furthermore, it is “well-settled that a prisoner seeking relief from his conviction

or sentence may not bring [ ] an action” for injunctive and declaratory relief, Williams v. Hill, 74

F.3d 1339, 1340 (D.C. Cir. 1996) (per curiam) (citations omitted)); such is the exclusive

province of habeas corpus, Preiser v. Rodriguez, 411 U.S. 475, 489 (1973).

                Mr. Rubino insists that he “is not seeking relief or release from his state court

convictions or sentences,” Opp’n at 1 [Dkt. 82], but “he does not claim an injury apart from the

fact of his conviction[s].” Williams, 74 F.3d at 1340. Mr. Rubino claims in his opposition that

he is being denied “meaningful court access.” Opp’n at 7. He cites the favorable termination

requirement established in Heck v. Humphrey, 512 U.S. 477 (1994), which bars a prisoner from

filing a civil suit prior to invalidating his conviction or sentence if his success in the civil suit


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would necessarily invalidate the conviction or sentence. Mr. Rubino seems to suggest that he

can never satisfy Heck because of the barriers he faces under AEDPA. See Opp’n at 7 (stating

that “as applied by the federal courts in California, plaintiff is both procedurally and objectively

barred from receiving any/all habeas corpus relief or to appeal their denials to a Circuit Court”).

But the constitutional right to access the courts is “ancillary to the underlying claim, without

which a plaintiff cannot have suffered injury by being shut out of court.” Christopher v.

Harbury, 536 U.S. 403, 415 (2002). Thus, to establish a court access claim, a plaintiff must

show that he has lost a “valid legal claim” or has been unable “to raise such a claim in any other

proceeding.” Ali v. District of Columbia, 278 F.3d 1, 8 (D.C. Cir. 2002). The fact that Mr.

Rubino is subject to the restrictions of Heck and AEDPA’s successive habeas rule undermines

any notion that he has lost a valid claim. See Felker v. Turpin, 518 U.S. 651, 664 (1996)

(holding that AEDPA’s restrictions on filing second habeas petitions “do not amount to a

‘suspension’ of the writ contrary to Art. I, § 9” of the Constitution); accord Doggett v. Gonzales,

No. 06-0575, 2007 WL 2893405, at *7 (D.D.C. Sept. 29, 2007) (concluding that “plaintiffs are

not denied access to the courts because they have no actionable legal claim”).

                 Finally, to the extent that Mr. Rubino is seeking “relief to halt California

Federal Courts’ abuse of the United States Constitution and the American Criminal Justice

system,” based on their application of the AEDPA and PLRA to him, Opp’n at 15, this Court is

without jurisdiction to grant or deny such relief. See Panko v. Rodak, 606 F.2d 168, 171 n.6 (7th

Cir. 1979), cert. denied, 444 U.S. 1081 (1980) (“It seems axiomatic that a lower court may not

order the judges or officers of a higher court to take an action.”); United States v. Choi, 818 F.

Supp. 2d 79, 85 (D.D.C. 2011) (district courts “generally lack[] appellate jurisdiction over other

judicial bodies, and cannot exercise appellate mandamus over other courts”) (citing Lewis v.


                                                  5
Green, 629 F. Supp. 546, 553 (D.D.C. 1986)).

                                      IV. CONCLUSION

               The Court concludes that Mr. Rubino has failed to state a Bivens claim against

Attorney General Lynch and a claim for equitable relief against the United States. Consequently,

Defendants’ motion to dismiss the amended complaint will be granted.2




Date: September 1, 2016                     _____/s/___________________
                                            ROSEMARY M. COLLYER
                                            United States District Judge




2
    A memorializing order accompanies this Memorandum Opinion.



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