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Olesen v. Morgan

July 8, 2009

LOUIS BRIAN OLESEN, II; BARBARA OLESEN; AND AMERICAN SHOOTERS SUPPLY, INC., PLAINTIFFS,
v.
JOHN MORGAN, SPECIAL AGENT OF THE FEDERAL BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES, DEFENDANT.



The opinion of the court was delivered by: Scullin, Senior Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiffs Brian Olesen, II ("Brian Olesen"), Barbara Olesen, American Shooters Supply, Inc. ("ASSI") and Guns, Inc.*fn1 filed this action on August 8, 2006, asserting six causes of action:

(1) a Bivens claim against Defendant John Morgan ("Morgan"), an agent of Defendant U.S. Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF"), for violations of their First, Fourth, and Fifth Amendment rights; (2) a substantive due process claim against Defendant Morgan; (3) an intentional infliction of emotional distress claim against Defendant Morgan; (4) a tortious interference with business relations claim against Defendant Morgan; (5) a prima facie tort claim against Defendant Morgan; and (6) a cause of action for the liability of Defendant ATF. Plaintiffs voluntarily dismissed the third, fourth, fifth, and sixth causes of actions.

On December 8, 2008, the Court dismissed with prejudice all claims against Defendant ATF, claims against Defendant Morgan in his official capacity, Plaintiff ASSI's First Amendment claim, Plaintiffs' claims brought solely under the Fourteenth Amendment, and Plaintiffs' substantive due process claims. See Memorandum-Decision and Order dated December 8, 2008, at 16. The Court also dismissed without prejudice Plaintiff Guns Inc.'s claims, Plaintiffs' procedural due process claims, and Plaintiffs' Fourth Amendment claims. See id.

On January 20, 2009, Plaintiffs Brian Olesen, Barbara Olesen, and ASSI amended their complaint and now assert the following claims on behalf of all three Plaintiffs against Defendant Morgan: (1) a Bivens*fn2 claim for retaliation in violation of the First Amendment; (2) a Bivens claim for Fourth Amendment violations; and (3) a Bivens claim for Fifth Amendment procedural due process violations and an equal protection violation.*fn3

Defendant has moved to dismiss the amended complaint on the following grounds: (1) sovereign immunity; (2) statute of limitations; and (3) failure to state certain claims on which relief can be granted.

II. BACKGROUND

Plaintiff Brian Olesen is an individual holder of a federal firearms license and an employee of Plaintiff ASSI. Plaintiff Barbara Olesen is the owner of ASSI and Plaintiff Brian Olesen's mother.

In 2002 and 2003, Plaintiff Brian Olesen and his partner James Frampton did business as B&J Guns, Inc. ("B&J"); Mr. Frampton held the federal firearms license for the business. In late 2002 to early 2003, Plaintiff Brian Olesen reported to the ATF that Mr. Frampton was committing a number of violations of federal and state laws. Defendant Morgan was involved in the investigation of the complaints.

III. DISCUSSION

A. Preliminary Matters

1. Standard of Review

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting [Bell Atl. Corp. v. Twombly, 550 U.S. 544,] 570, 127 S.Ct. 1955, 1167 L.Ed. 2d 929 [(2007)]). Plausible claims allow the court to draw a reasonable inference of liability for the conduct alleged. See id. (citation omitted). A court does not accept allegations of legal conclusions as true where they are supported by conclusory allegations. See id. (citation omitted).

2. Claims Already Addressed

a. Individual/Official Capacity

Defendant, based on the omission in the caption and throughout Plaintiffs' amended complaint of a statement that they are suing Defendant in his individual capacity, asks this Court to dismiss the amended complaint based on sovereign immunity. Sovereign immunity bars Bivens actions against federal defendants in their official capacities. See Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994) (dismissing, for want of subject matter jurisdiction due to sovereign immunity, Bivens claims to the extent they constituted claims against the defendants in their official capacities). The Court previously dismissed all claims against Defendant Morgan in his official capacity. See Memorandum-Decision and Order dated December 8, 2008, at 16. Further, Plaintiffs asserted, in response to both Defendant's first motion to dismiss and this motion to dismiss, that they ...


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