                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
________________________________
                                 )
CHUN-YU ZHAO,                    )
                                 )
               Plaintiff,        )
                                 ) Civil Action No. 11-0624 (EGS)
               v.                )
                                 )
ERIC HOLDER, JR. et al.,         )
                                 )
               Defendants.       )
                                 )

                             MEMORANDUM OPINION

       This case is before the Court on defendants’ Motion to

Dismiss the Amended Complaint.       Upon consideration of the

motion, the response and reply thereto, the entire record, and

for the reasons explained below, defendants’ motion is GRANTED.

  I.     BACKGROUND

       Plaintiff is a naturalized United States citizen who

previously operated a computer and networking equipment business

in Virginia called JDC Networking.       Am. Compl. ¶ 2.   Defendant

Eric Holder, Jr. (“Holder”) is the United States Attorney

General.    Id. ¶ 3.    Defendant James Cole (“Cole”) is the Deputy

Attorney General.      Id. ¶ 4.   Defendant Lanny Breuer is the

Assistant Attorney General for the Criminal Division.        Id. ¶ 5.

       In July 2012, U.S. Immigration and Customs Enforcement

(“ICE”) intercepted a package of allegedly counterfeit equipment

labels addressed to “Kevin” at the address of a commercial
mailbox store where plaintiff rented a mailbox.      Am. Compl. ¶ 8.

Plaintiff alleges that the package did not bear a specific

mailbox number.    Id.   ICE agents then took the intercepted

package to the mailbox store and instructed the staff to call

plaintiff to tell her that she had received a package.        Id.

Plaintiff retrieved the package on July 22, 2010.      Id.

     When plaintiff arrived at her home, ICE agents including

Special Agents Misty Price (“Price”) and Julie Hilario

(“Hilario”) entered her residence, searched her home, and began

interrogating her.    Am. Compl. ¶ 9.     During the course of Zhao’s

interrogation, Agent Hilario filled out a standard customs

consent-to-search form for Zhao’s storage unit at EZ Storage in

Chantilly, Virginia.     Id. ¶ 10.    Plaintiff states that the name

Chun Zhao is printed on the form and there is a signature below

the name.   Id.   Agents Price and Hilario signed the form as

witnesses to the signature.     Id.

     On July 22, 2012, following the search of her residence and

her storage unit, plaintiff was arrested.      Am. Compl. ¶    14.   On

August 24, 2010, the United States Attorney’s Office for the

Eastern District of Virginia filed a multiple-count indictment

against Zhao for charges relating to the importation and sale of

improperly declared and/or counterfeit goods.      See id.; United

States v. Zhao, No. 10-cr-317 (E.D. Va.).



                                      2
     On September 28, 2010, Zhao filed several motions to

suppress, including a motion to suppress the property seized

from her storage.     Am. Compl. ¶ 15.   In the motion, plaintiff

argued that she did not consent to the search of the unit and

that she did not understand the form because she speaks limited

English..     Id.; see United States v. Zhao, No. 10-cr-317 (E.D.

Va.), ECF No. 36.     The government, in its response to

plaintiff’s motion, attached a copy of the signed form.       Am.

Compl. ¶ 15.

     A hearing was held on plaintiff’s motion to suppress on

November 8, 2010 before the Honorable Gerald B. Lee.       See

Compl., Ex. A, ECF No. 1. 1   At the hearing, plaintiff’s counsel

argued that plaintiff signed the form without understanding what

it meant but stated several times that plaintiff had signed it.

Id. at 102.    Notably, plaintiff’s counsel did not argue that

plaintiff did not sign the form or that her signature had been

forged.   See id.   Agent Price testified that she personally saw

Zhao sign the consent-to-search form.      Am. Compl. ¶ 10.   The

Judge denied the motion to suppress and held that plaintiff

“sufficiently understood what the documents were when she signed


1
  A full copy of the transcript of this hearing was attached as
Exhibit A to plaintiff’s initial Complaint. See ECF No. 1, Ex.
A. Upon filing her Amended Complaint, plaintiff attached only a
small portion of the transcript that contained none of the
colloquy regarding whether plaintiff had indeed signed the form.
See ECF No. 17, Ex. A.
                                   3
them.    She signed them.   And it seems to me this was a consent

to search her EZ Storage unit.”     Id. at 107-08.

     On March 30, 2011, five months after the motion to suppress

was filed, plaintiff’s counsel filed a motion to dismiss the

indictment alleging “extreme government misconduct.”       United

States v. Zhao, No. 10-cr-317 (E.D. Va.), ECF No. 110.       In that

motion, plaintiff argued that her signature had been forged and

she relied upon an analysis of the signature by an independent

expert, David Browne, who concluded that “there is very strong

evidence that the questioned ‘Chun Yu Zhao’ signature in the

Consent to Search form was not written by Chun Yu Zhao.”

     On April 20, 2011, Judge Lee denied plaintiff’s motion.

United States v. Zhao, No. 10-cr-317 (E.D. Va.), ECF No. 127.

The Judge found that counsel had made several representations at

the suppression hearing that his client had signed the document.

United States v. Zhao, No. 10-cr-317 (E.D. Va.), ECF No. 164 at

79-80.    In view of those representations, the Judge declined to

revisit his ruling on the motion to suppress and declined to

dismiss the indictment.     Id.

     Following a jury trial, plaintiff was found guilty of

sixteen counts related to the importation, sale, and trafficking

of counterfeit goods.    United States v. Zhao, No. 10-cr-317

(E.D. Va.), ECF No. 293.     She was sentenced on September 16,

2011 to sixty months’ imprisonment.     Id. at 3.    The case is

                                   4
currently on appeal.    See United States v. Cone, No. 11-4888

(4th Cir.).

      In this action, plaintiff seeks damages pursuant to Bivens

v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971).

Plaintiff argues in this case that the signature on the consent

to search her EZ Storage Unit was forged and that government

witnesses gave false testimony regarding the form.       Am. Compl. ¶

17.

      Plaintiff states that she notified Breuer, through her

counsel, of the Browne Report on March 9, 2011.       Am. Compl. ¶

18.   Plaintiff, through counsel, also offered to make her expert

available to the Department of Justice (“DOJ”).       Id.

Plaintiff does not specify any of the details of these contacts

with Breuer or the DOJ and does not specify whether and how she

attempted to contact Holder or Cole.       The DOJ referred the

matter to the U.S. Attorney’s Office that had been responsible

for plaintiff’s case.    Id.   That office, plaintiff contends,

rejected the contents of the Browne report “out-of-hand.”         Id.

Plaintiff contends that Holder, Cole and Breuer violated her

Fifth Amendment Due Process rights by failing to investigate

plaintiff’s claim of misconduct.       Id. ¶ 22.

      Defendants have moved to dismiss all claims pursuant to

Federal Rules of Civil Procedure 12(b)(1) through (6).

Defendants argue that they have not been properly served and

                                   5
that venue is improper under 28 U.S.C. § 1391(b).     Defendants

also contend that plaintiff has failed to state a claim for

several reasons.     First, defendants argue that they are immune

to suit because they were acting in their role as public

officers.   Defendants also argue that plaintiff’s claims are

barred by the Supreme Court’s ruling in Heck v. Humphrey, 512

U.S. 477 (1994), which held that a plaintiff cannot pursue a

civil claim where the recovery on that claim would imply the

invalidity of a criminal conviction.     Finally, defendants argue

that plaintiff’s claim is barred by res judicata and collateral

estoppel because the issue was previously decided in plaintiff’s

criminal case.

  II.   DISCUSSION

     A motion to dismiss under Federal Rule of Civil Procedure

12(b)(6) tests the legal sufficiency of a complaint.     Browning

v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).     A complaint

must contain “a short and plain statement of the claim showing

that the pleader is entitled to relief, in order to give the

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) (internal quotation marks and citations omitted).

While detailed factual allegations are not necessary, plaintiff

must plead enough facts “to raise a right to relief above the

speculative level.”     Id.

                                   6
     When ruling on a Rule 12(b)(6) motion, the Court may

consider “the facts alleged in the complaint, documents attached

as exhibits or incorporated by reference in the complaint, and

matters about which the Court may take judicial notice.”

Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002).

The Court must construe the complaint liberally in plaintiff’s

favor and grant plaintiff the benefit of all reasonable

inferences deriving from the complaint.   Kowal v. MCI Commc’ns

Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).    However, the Court

must not accept plaintiff’s inferences that are “unsupported by

the facts set out in the complaint.”   Id.   “[O]nly a complaint

that states a plausible claim for relief survives a motion to

dismiss.”   Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

     Plaintiff’s claims against the defendants must be dismissed

under Rule 12(b)(6) for failure to state a claim.    All three

defendants, acting in their respective official capacities,

enjoy qualified immunity against “liability for civil damages

insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person

should have known.”   Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982).   To show that a government official is not protected by

qualified immunity, a plaintiff must show (1) that defendant’s

conduct violated the Constitution, and (2) that the

constitutional right that was violated was sufficiently

                                 7
established such that a reasonable person would have known the

conduct violated the Constitution.   Pearson v. Callahan, 555

U.S. 223, 231 (2009).

     Plaintiff argues that defendants are not entitled to

qualified immunity in light of their “failure to simply

investigate her scientifically substantiated claim of

misconduct.”   Pl.’s Opp. to Defs.’ Mot. to Dismiss, ECF No. 35,

at 3.   Plaintiff argues that defendants were constitutionally-

obligated to provide her with a response and an investigation of

her claims that her signature was forged and her property was

unlawfully seized from her storage unit.   Id. at 9.

     The Court disagrees.   The right to require several high-

ranking officials at the Department of Justice to specifically

investigate plaintiff’s claims of forgery is not a right so

“sufficiently established” by law that a reasonable official

would have known a failure to do so violated the Constitution.

See Heckler v. Chaney, 470 U.S. 821, 828 (1985) (an agency’s

decision not to prosecute or enforce, whether through civil or

criminal process, is a decision generally committed to an

agency’s absolute discretion); see also Sieverding v. U.S. Dep’t

of Justice, 693 F. Supp. 2d 93, 110 (D.D.C. 2010) (“DOJ thus had

no obligation to pursue Ms. Sieverding’s allegations of criminal

behavior, and she cannot state a claim for relief based on her

allegations of a failure to subpoena or investigate.”).   Indeed,

                                 8
several courts have found that an agency head’s failure to act

in the face of a plaintiff’s complaint is insufficient to

support a Bivens claim.    See Farmer v. Moritsugu, 163 F.3d 610,

614-15 (1998) (holding that Bureau of Prisons medical director

who failed to respond to specific complaints by prisoner was

protected by qualified immunity); see also Burke v. Lappin, 821

F. Supp. 2d 244, 248 (D.D.C. 2011) (declining to allow Bivens

claim to proceed against defendant prison officials who were

alleged to have been notified personally by defendant of his

complaints about the quality of kosher food in a prison). 2

     Plaintiff’s claims are also barred by Heck v. Humphrey, 512

U.S. 477 (1994), which held that a plaintiff cannot pursue a

civil claim where the recovery on that claim would imply the

invalidity of a criminal conviction unless the plaintiff first

establishes that the conviction has been overturned.   The

holding of Humphreys has been extended to apply to Bivens

actions in this Circuit.   Williams v. Hill, 74 F.3d 1339, 1340-

41 (D.C. Cir. 1996).   Here, plaintiff has not established that

2
  Although expressly disavowed by plaintiff in her opposition to
the motion to dismiss, the Court also notes that plaintiff
cannot proceed in a Bivens action on a claim of respondeat
superior. Simpkins v. District of Columbia Government, 108 F.3d
366, 369 (D.C. Cir. 1997). The complaint must allege that the
defendant federal official was personally involved in the
illegal conduct. Accordingly, to the extent plaintiff’s
complaint appears to allege a theory of respondeat superior on
behalf of the violations of other federal agents and
prosecutors, those allegations cannot survive a motion to
dismiss. See id.
                                  9
the conviction has been overturned, nor has she sought and

obtained habeas relief.   Indeed, plaintiff’s case is currently

on appeal.

     The Court finds the case of Aleotti v. Baars particularly

instructive.    896 F. Supp. 1 (D.D.C. 1995), aff’d, 107 F.3d 922

(D.C. Cir. 1996).   In that case, plaintiff had been convicted of

malicious destruction of property and brought a Section 1983

action against various witnesses, officers, and prosecutors

involved in his criminal case.    Id. at 3.   Plaintiff alleged,

inter alia, that the defendants conspired to entrap him, gave

false testimony, tampered with evidence, and maliciously

prosecuted him.   Id.   Following the reasoning of Heck, the court

first noted that plaintiff’s conviction had not been reversed,

expunged, declared invalid, or called into question.     Id. at 4.

The court next considered whether the plaintiff’s claims would

“necessarily imply the invalidity” of plaintiff’s conviction and

sentence. Id.   The court found that it was clear that

plaintiff’s claims would necessarily imply the invalidity of the

conviction, since they challenged the underlying evidence in the

case against him.   See id.   The court also noted that all of

plaintiff’s claims were “predicated on facts that existed and

were known at the time of or prior to Mr. Aleotti’s conviction

and should have been pursued at trial or on appeal . . . .”      Id.

at 4.

                                 10
     As in Aleotti, plaintiff seeks to challenge the evidence

underlying her conviction.   The consent-to-search form led, at

least in part, to the counterfeit products and labels used as

evidence to convict the plaintiff.    If the Court were to find in

favor of the plaintiff, the Court would have to find that the

consent-to-search form was invalid and that the underlying

evidence was obtained unlawfully.    Such a finding would

“necessarily imply” that plaintiff’s conviction was invalid.    As

in Aleotti, the Court notes that plaintiff’s counsel could have

argued – but did not – that plaintiff did not sign the form.

Instead, counsel argued that she signed the form without

understanding its significance because of her limited English

skills.   Even though the government had attached the consent-to-

search form to its opposition to the motion to suppress, counsel

did not raise the issue of a forged signature until nearly five

months after the court had denied the motion to suppress.

Accordingly, the Court finds that plaintiff’s claims are also

barred by Heck.

  III. CONCLUSION

     For the foregoing reasons, defendants’ motion to dismiss

plaintiff’s complaint is hereby GRANTED.    Because the Court

finds that the complaint should be dismissed on the grounds

stated herein, the Court need not reach the other issues raised



                                11
by defendants.   An appropriate Order accompanies this Memorandum

Opinion.

     Signed:     Emmet G. Sullivan
                 United States District Judge
                 September 12, 2012




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