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 
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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.).
3

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. 
4

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 
5

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
6

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. 
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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 
8

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 constitutionallyobligated 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 highranking 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, 
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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. 
10

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. 
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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-tosearch 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 
12

by defendants. An appropriate Order accompanies this Memorandum 

Opinion. 

Signed: Emmet G. Sullivan

United States District Judge

September 12, 2012