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IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF TEXAS 

TYLER DIVISION

COREY JOHNSON §

v. § CIVIL ACTION NO. 6:23cv445

CRAIG BASS, ET AL. §

REPORT AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

The Plaintiff Corey Johnson filed this lawsuit complaining of alleged deprivations of his 

constitutional rights. The lawsuit has been referred to the undersigned United States Magistrate 

Judge pursuant to 28 U.S.C. §636(b)(1) and (3) and the Amended Order for the Adoption of Local 

Rules for the Assignment of Duties to United States Magistrate Judges. The named Defendants are 

Longview attorney Craig Bass and United States Attorney Nathaniel Kummerfeld.

I. The Plaintiff’s Complaint

Plaintiff is currently a defendant in United States v. Johnson, no. 6:20cr77-1, which is 

pending before this Court. In the present lawsuit, he complains that his former defense attorney, 

Craig Bass, was talking to the prosecutor and the law enforcement agent, Joshua Roughbach, 

without his consent. He saysthat they were conspiring to “not give me a fair chance with my case.” 

Plaintiff states that they want him to “pay big time for a small role that I played in a conspiracy,” 

and that Bass would not let him sign the first plea agreement, but “withheld it from me while sharing 

classified [sic] information with the Government.” He says that he should be facing a sentence of 

15 to 55 months but “they are trying to give me 250 months.”

According to Plaintiff, Kummerfeld told Bass not to represent Plaintiff properly, to avoid 

him, and not to let him sign the first plea offer. He says that Bass is working with the Government 

to charge him with an offense level twice as high as it should be, contending that this level should

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be 14 but has been set at 34. He asks for $35,000.00 in attorney fees, $50,000.00 for pain and 

suffering, and that the court should give him the correct offense level or allow him to take the first 

plea deal, which Plaintiff claims was “twice as low as the second one that they came with later that 

was fabricated.”

Court records show that Plaintiff’s criminal case is still in progress. On February 3, 2023, 

Gerald Smith was substituted as counsel of record for Plaintiff in place of Craig Bass. On August 

23, 2023, Plaintiff rendered a guilty plea before the United States Magistrate Judge, and this plea 

was accepted by the United States District Judge on August 25, 2023. Sentence has not yet been 

imposed, and the docket does not reflect that a pre-sentence investigation report has been filed.

II. Discussion

A. General Screening Standards

28 U.S.C. §1915Arequiresthat assoon as practicable, district courtsmustreviewcomplaints 

wherein prisoners seek redress from governmental entities or their employees and identify 

cognizable claims or dismiss the complaint or any portion thereof if the complaint is frivolous, 

malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a 

defendant who is immune from such relief. Such screening is appropriately done even where the 

prisoner is not proceeding in forma pauperis. Santelises v. Governor of State of Texas, slip op. no. 

23-40113, 2023 U.S. App. LEXIS 26972, 2023 WL 6618237 (5th Cir., October 11, 2023), citing

Shakouri v. Davis, 923 F.3d 407, 410 (5th Cir. 2019).

A complaint fails to state a claim upon which relief may be granted where it does not allege 

sufficient facts that, taken as true, state a claim that is plausible on its face and thus does not raise 

a right to relief above the speculative level. Montoya v. FedEx Ground Packaging System Inc., 614 

F.3d 145, 149 (5th Cir. 2010), citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 

1955, 167 L.Ed.2d 929 (2007). A claim has factual plausibility when the pleaded factual content 

allows the court to draw the reasonable inference that the defendant is liable for the misconduct 

alleged. Hershey v. Energy Transfer Partners, L.P., 610 F.3d 239, 245 (5th Cir. 2010); Ashcroft v.

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Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009). This plausibility standard is not akin to a 

probability requirement, but asksfor more than a possibility that the defendant has acted unlawfully. 

Twombly, 550 U.S. at 556.

Detailed factual allegations are not required, but the claim must contain more than “an 

unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 677-78. A 

pleading offering “labels and conclusions” or a “formulaic recitation of the elements of a cause of 

action” will not suffice, nor does a complaint which provides only naked assertions that are devoid 

of further factual enhancement. Id. at 678.

A complaint may be dismissed if a plaintiff fails to “nudge [his] claims across the line from 

conceivable to plausible,” if the complaint pleads facts merely consistent with or creating a 

suspicion of the defendant’s liability, or if a complaint lacks a factual allegation regarding any 

required element necessary to obtain relief. Rios v. City of Del Rio, Tex., 444 F.3d 417, 421 (5th Cir. 

2006). Pro se plaintiffs are held to a more lenient standard than are lawyers when analyzing a 

complaint, but pro se plaintiffs must still plead factual allegations which raise the right to relief 

above the speculative level. Chhim v. University of Texas at Austin, 836 F.3d 467, 469 (5th Cir. 

2016). “The plausibility standard is not akin to a ‘probability requirement,’ but it asksfor more than 

a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678.

Although all well-pleaded facts are taken as true, the district court need not accept as true 

conclusory allegations, unwarranted factual inferences, orlegal conclusions. Gentilello v.Rege, 627 

F.3d 540, 544 (5th Cir. 2010), citing Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir. 2005). 

Dismissal is proper if a complaint lacks a factual allegation regarding any required element 

necessary to obtain relief. Rios, 444 F.3d at 421.

B. The Plaintiff’s Claims

Plaintiff is suing a federal prosecutor and the attorney who represented him in a federal 

criminal case, so his lawsuit is necessarily proceeding under Bivens v. Six Unknown Named Agents 

of Federal Bureau ofNarcotics, 403 U.S. 388, 397, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). A Bivens

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action provides a remedy for victims of alleged constitutional violations by federal government 

officials in their individual capacities. See Cronn v. Buffington, 150 F.3d 538, 540 (5th Cir. 1998); 

Correctional Services Corp. v. Malesko, 534 U.S. 61, 66, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001). 

Where a civil rights lawsuit names federal actors as defendants, it is properly construed as a Bivens 

action. See Campbell v. Booth, civil action no. 2:22cv00052, 2022 WL 2133885 (S.D.Tex., April 

15, 2022), Report adopted at 2022 WL 1555790 (S.D.Tex., May 17, 2022), appeal dismissed 2022 

WL 421009 (5th Cir., January 26, 2023) (construing civil rights claims against federal judges and 

prosecutor as arising under Bivens).

To the extent Plaintiff seeks damages against Assistant U.S. Attorney Nathaniel 

Kummerfeld, such a claim is barred by the doctrine of prosecutorial immunity. This doctrine 

providesthat prosecutors are immune fromclaimsfor damages based upon their actionsin initiating, 

investigating, or pursuing a criminal prosecution. Imbler v. Pachtman, 424 U.S. 409, 420, 96 S.Ct. 

984, 47 L.Ed.2d 128 (1976); Cook v. Houston Post, 616 F.2d 791, 793 (5th Cir. 1980).

While prosecutorial immunity does notshield Kummerfeld from claimsforinjunctive relief, 

these claims must fail because Plaintiff’s requests for injunctive relief concern an ongoingfederal 

criminal case. The Southern District of Texas has explained that “based on the same logic set forth 

in Younger v. Harris, 401 U.S. 37 (1971), which held that federal courts may not stay or enjoin 

pending state court proceedings except under extraordinary circumstances, federal courts have 

refused to intervene or interfere with pending federal criminal proceedings.” Laster v. Boyle, civil 

action no. 3:21cv2525, 2022 U.S. Dist. LEXIS 160146, 2022 WL 4086782 (N.D.Tex., August 4,

2022), Report adopted at 2022 U.S. Dist. LEXIS 159968, 2022 WL 4084429 (N.D.Tex., September

6, 2022), citing Ceglia v. Zuckerberg, 600 F.App’x 34, 2015 U.S. App. LEXIS 6426, 2015 WL 

1759544 (2nd Cir., April 20, 2015). See also McPhee v. United States, civil action no. 1:21cv8672, 

2021 U.S. Dist. LEXIS 208654, 2021 WL 5014815 (S.D.N.Y., October 27, 2021). Plaintiff offers

nothing to suggest that he is entitled to injunctive relief or other intervention through a civil lawsuit

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concerning his ongoing criminal prosecution. His claims against Kummerfeld lack an arguable basis 

in law and fail to state a claim upon which relief may be granted.

Plaintiff also sues former defense counsel Craig Bass. As appointed counsel, Bass is not 

subject to suit under Bivens because he is not an official of the federal government. McLeod v. 

Knowles, 189 F.App’x 297, 2006 U.S. App. LEXIS 15562, 2006 WL 1738286 (5th Cir., June 21,

2006); Polk County v. Dodson, 454 U.S. 312, 325, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981).

Plaintiff seeks to evade this rule by alleging that Bass conspired with federal agents. A 

private actor may be sued as a government actor if the private actor conspires with a government 

official. Phillips v. Cowie, slip op. no. 22-10767, 2023 U.S. App. LEXIS 6242, 2023 WL 2524457

(5th Cir., March 15, 2023); Mills v. Criminal District Court No. 3, 837 F.2d 677, 679 (5th Cir. 

1988). However, bare allegations of a conspiracy are notsufficient. Small v. Dallas County, Texas, 

170 F.App’x 943, 2006 U.S. App. LEXIS 8776, 2006 WL 925500 (5th Cir., April 10, 2006); Wilson

v. Budney, 976 F.2d 957, 958 (5th Cir. 1992). Rather, the plaintiff must plead the operative facts 

upon which the claim is based. Gibson v. Veteran’s Administration, 84 F.App’x 363, 2003 U.S. 

App. LEXIS 24201, 2003 WL 22849810 (5th Cir., December 2, 2003); Lynch v. Cannatella, 810 

F.2d 1363, 1369-70 (5thCir. 1987). Plaintiff’s bare allegation thatBass conspired with Kummerfeld 

and Roughbach are conclusory and not sufficient to render Bass liable as a government actor. His 

claims against Bass lack an arguable basis in law and fail to state a claim upon which relief may be 

granted.

Furthermore, while Plaintiff’s claims are properly construed under Bivens, the Supreme 

Court has recognized only three circumstances in which Bivens claims can arise. In Bivens, the 

Court held that a person claiming to be the victim of an unlawful arrest and search could bring a 

Fourth Amendment claim for damages against the responsible agents even though no federalstatute 

authorized such a claim. In Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979), 

the Court recognized a claim for sex discrimination brought by a congressional staff member, and

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in Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980), the Court recognized a 

claim of failure to provide medical care to a prisoner in federal custody.

Beyond these circumstances, the Supreme Court has cautioned against extending Bivens to 

new contexts. Hernandez v. Mesa, 140 S.Ct. 735, 744, 206 L.Ed.2d 29 (2020); Ziglar v. Abbasi, 137

S.Ct. 1843, 1861, 198 L.Ed.2d 290 (2017). The Court explained that extending Bivens to new 

contexts is a “disfavored judicial activity.” Id at 1857; see also Oliva v. Nivar, 973 F.3d 438, 442 

(5th Cir. 2020) (physical altercation and arrest of the plaintiff at a Veterans Administration hospital 

represented a “new context” to which Bivens would not be extended). No court has extended Bivens 

to claims raised against prosecutors or defense counsel. See, e.g., Williams v. United States, civil 

action no. DKC-21-537, 2021 U.S. Dist. LEXIS 83306, 2021WL 1720230 (D.Md., April 30, 2021).

Plaintiff’s claims fail for this reason as well.

RECOMMENDATION

It is accordingly recommended that the above-styled civil action be dismissed with prejudice 

as frivolous and for failure to state a claim upon which relief may be granted. The dismissal of this 

lawsuit should have no effect upon Plaintiff’s defense in his criminal case, nor upon any challenge 

he may wish to present to the outcome of this criminal case on direct appeal or through collateral 

review.

A copy of these findings, conclusions and recommendations shall be served on all parties in 

the manner provided by law. Any party who objects to any part of these findings, conclusions, and 

recommendationsmustfile specificwritten objectionswithin 14 days after being served with a copy.

In order to be specific, an objection must identify the specific finding or recommendation 

to which objection is made, state the basis for the objection, and specify the place in the Magistrate 

Judge’s proposed findings, conclusions, and recommendation where the disputed finding is found.

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An objection which merely incorporates by reference or refers to the briefing before the 

Magistrate Judge is not specific, and the district court need not consider frivolous, conclusive, or 

general objections. See Battle v. United States Parole Commission, 834 F.2d 419, 421 (5th Cir. 

1987).

Failure to file specific written objections will bar the objecting party from appealing the 

factual findings and legal conclusions of the Magistrate Judge which are accepted and adopted by 

the district court except upon grounds of plain error. Duarte v. City of Lewisville, 858 F.3d 348, 352 

(5th Cir. 2017).

So ORDERED and SIGNED this 23rd day of October, 2023.

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