UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JARED S. FOGLE , pro se , Plaintiff,

v. TANYA WALTON-PRATT et al. , Defendants. Case No. 1:18-cv-00697 (TNM)

MEMORANDUM OPINION Plaintiff Jared S. Fogle, pro se , alleges that the judicial o fficers, prosecutors, and defense attorneys involved in his criminal proceedings as well as the “ Attorney General of the United States, Obama Administration” c ommitted various federal crimes, including obstruction of justice under 18 U.S.C. § 1503 and vi olation of the Racketeer I nfluenced and Corrupt Organizations Act ( “RICO”), 18 U.S.C. § 1961 et seq . Compl. 1, 3-4, ECF No. 1. He seeks $57 million in restitution. Id. 18 ¶ 3. Because this Court lacks subject matter jurisdiction with respect to the judges, prosecuto r, and Attorney General; and be cause Mr. Fogle has failed to state a claim upon which relief can be granted with respect to his fo rmer defense attorneys, this case will be dismissed. See 28 U.S.C. § 1915A (requiring a court to review “as soon as pra cticable after docketing, a complaint in a civil action in which a priso ner seeks redress from a governmental entity or officer of e mployee of a governmental en tity” and dismiss it if the complaint “is frivolous, malici ous, or fails to state a claim u pon which relief may be granted” or “seeks monetary relief from a defendant who is immune from such relief.”; see also id. § 1915(e)(2). Mr. Fogle also file d a Motion for Injunctive Rel ief, requesting a court order that he2 be allowed to continue communi cating with his co-plaintiffs, 1 and a Motion to Take Judicial Notice that the United States fa iled to allege any “injury-in-f act” in his 2015 criminal proceedings. Mot. for Inj. Relief, ECF No. 3; Mot. to Take Jud icial Notice, ECF No. 4. Due to the case’s dismissal, both motions will be denied as moot.

I. In 2015, Mr. Fogle, represented by counsel, pled guilty to dist ributing and receiving, and conspiring to distribute and rece ive, child pornography in viol ation of 18 U.S.C. § 2252(a)(2), and attempting to travel to enga ge in illegal sexual conduct wi th a minor in violation of Sections 2423(b) and (e). United States v. Fogle , 825 F.3d 354, 356 (7th Cir. 2016); United States v. Fogle , No. 1:15-cr-00159, 2015 WL 7253333 (S.D. Ind. Nov. 16, 2015). Mr. Fogle is currently serving a 188-month senten ce in Littleton, Colorado. Id. ; Compl. 18. He now contends that the judges, prosecutor, and defense a ttorneys involved in his crimi nal proceedings obstructed justice and violated RICO in handling his case. See Compl. 1, 3. Although Mr. Fogle originally filed suit with two other inmates, the re is no common factual ground among the three cases, and only Mr. Fogle’s claims are considere d here. Mr. Fogle, a former sp okesman for Subway, Inc., demands $57 million under 18 U.S.C. § 1964(c) as treble damages for reputational harm to his professional business career. See Compl. 18.

1 The Complaint is styled to inc lude three plaintiffs, Mr. Fogl e, James Nathan Fry, and Frank Edwin Pate, all of whom are in carcerated and challenge aspects of their criminal proceedings, but none of the factual allegati ons are common among them. See Compl. 4-7 (describing Mr. Fogle’s allegations), id. at 8-9 (describing Mr . Fry’s allegations), id . at 10-14 (describing Mr. Pate’s allegations). The pl aintiffs explain that they “hav e filed this complaint jointly so as to save time and the judicial resources.” Id . at 15. The three cases ha ve been separated for resolution. Mr. Fry’s case was dismissed on May 1, 2018. Orde r Dismissing Pro Se Case Without Prejudice, Fry v. Kyle , No. 18-cv-00698 (D.D.C. 2018), ECF No. 8. Mr. Pate’s case is pending. Pate v. Mazzant , No. 18-cv-00699 (D.D.C. 2018).3 II. Federal Rule of Civil Procedure 8( a)(2) requires that a complai nt contain “a short and plain statement of the claim show ing that the pleader is entitl ed to relief.” This requires the complaint to contain sufficient factual allegations that, if tr ue, “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007). A complaint is insufficient if it merely offers “‘labels and conclusions’” or “‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Twombly , 550 U.S. at 555, 546). Rather, “[a] cl aim has facial plausibil ity when the plain tiff pleads factual content that allows the court t o draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal , 556 U.S. at 678. Plausibility “asks for more than a sheer po ssibility that a defendant has acted unlawfully,” id. , and pleading facts that are “merely consistent with” a defendant’s liability “stops s hort of the line between possibil ity and plausibility.” Twombly , 550
U.S. at 545-46. In evaluating the dismissal of acomplaint for failure to state a claim, the Court must construe the complaint in the light most favorable to the plain tiff and accept as true all reasonable factual inferences dr awn from well-pled factual alle gations. See In re United Mine Workers of Am. Emp. Benefit Plans Litig. , 854 F. Supp. 914, 915 (D.D.C. 1994). Pro se pleadings are to be liberally con strued and “held to less strin gent standards than formal pleadings drafted by lawyers,” Haines v. Kerner , 404 U.S. 519, 520 (1972), but the Court does not accept as true legal conclusions or “[ t]hreadbare recitals of the elem ents of a cause of action, supported by mere conclusory statements.” Iqbal , 556 U.S. at 678. Last, “[i]n determining whether a complaint fails to state a claim , [the court] may consider only the facts alleged in the complaint, any documents either attached to o r incorporated in the complai nt and matters of which [the4 court] may take judicial notice.” Hurd v. District of Columbia Gov’t , 864 F.3d 671, 678 (D.C. Cir. 2017) (quoting EEOC v. St. Francis Xavier Parochial Sch. , 117 F.3d 621, 624 (D.C. Cir. 1997)). A case may also be dismissed withrespect to a defendant if tha t defendant is protected by immunity. Immunity is “jurisdic tional in nature,” meaning that the court lacks the ability to enter judgment against an immune defendant. FDIC v. Meyer , 510 U.S. 471, 475 (1995). Judges, prosecutors, and federal officials are immune from suit s for civil damages for conduct within the scope of their official capacities. Mitchell v. Forsyth , 472 U.S. 511, 520 (1985). The doctrine of judicial immunity shi elds judges from lawsuits for money damages for actions that are judicial in nature. Mireles v. Waco , 502 U.S. 9, 11 (1991); Sindram v. Suda , 986 F.2d 1459, 1460 (D.C. Cir. 1993). Prosecutors r eceive immunity for any ac tions taken in the judicial phase of the criminal process. Gray v. Bell , 712 F.2d 490, 499 (D.C. Cir. 1983). Additionally, under the doctrine of sovereign immunity, “the United States may not be sued without its consent” and “the existence of consent is a p rerequisite for jurisdiction.” United States v. Mitchell , 463 U.S. 206, 212 (1983). This immunity also applies to a federal offic ial sued in their official capacity. Clark v. Library of Congress , 750 F.2d 89, 103 (D.C. Cir. 1984); s ee also Kentucky v. Graham , 473 U.S. 159, 165-66 (1985).

III. The doctrines of judicial, pros ecutorial, and sovereign immunit y bar Mr. Fogle’s claims against the judicial officers , prosecutors, and former Attorney General of the United States. Additionally, Mr. Fogle has als o failed to state a claim with r espect to his former defense attorneys.5 A.
Mr. Fogle has sued four federal judges: two United States Dist rict Judges and two judges on the United States Court of App eals for the Seventh Circuit ( the “Judicial Defendants”). Compl. 1. Judge Walton-Pratt sent enced Mr. Fogle after his gui lty plea, and Judges Flaum, Manion, and Alonso (a distri ct judge sitting by designation on Mr. Fogle’s appeal panel) affirmed his sentence. Fogle , 825 F.3d at 355. Mr. Fogle alleges that the Judicial Defenda nts obstructed justice and violate d RICO by inducing his guilty ple a, entering his conspiracy conviction (which he claims is not actually a federal offense b ecause it is not codified in 18 U.S.C. § 2252(a)(2)), affirming t hat conviction on appeal, sche ming to defraud his corporation, Jared Fogle, Inc., of its assets, c ausing him to transmit wire communications across state lines to his attorneys in order to secure a wire fraud conviction, and a ltering the content of the attorneys’ arguments in judicial proceedi ngs. Compl. 5-6 ¶¶ 3-7, 7 ¶ 9. The doctrine of judicial immun ity protects judges from “suits for money damages for all actions taken in the judge’s ju dicial capacity, unless these ac tions are taken in the complete absence of all jurisdiction.” Sindram , 986 F.2d at 1460. RICO actions against judges are barred by judicial immunity “if they sim ply constitute another way of attacking a judge's rulings” and where “the RICO-challenged acts are judicial in nature.” Thomas v. Wilkens , 61 F. Supp. 3d 13, 20 (D.D.C. 2014) (internal quotatio n marks omitted). Asserting that a judge acted in furtherance of conspiracy or corruption does not make a judicial act “less judicial.” Id. The Judicial Defendants acted wit hin their judicial capacity wi th respect to Mr. Fogle and therefore are protec ted by judicial immunity. All of the alleg ations that Mr. Fogle levels against the Judicial Defendants occurr ed while the judges were performi ng acts that are judicial in

nature. See, e.g. , Compl. 5 ¶ 5 (alleging that the j udges affirmed his conviction) . Mr. Fogle does6 not allege a single instance whe n a judicial officer acted outs ide the scope of the judicial role to attempt to “obstruct justice.” See Compl. 5-7. Furthermore, Mr. Fogle’s allegation that the Judicial Defendants invented a c onspiracy offense to charge him with is inaccurate as a matter of law. See Compl. 5 ¶ 2 (calling the conspir acy charge “illegal”). While 18 U.S.C. § 2552(a)(2) does not codify a conspiracy o ffense, 18 U.S.C. § 371 makes it an offense for two or more persons to conspire to commit a ny federal offense, including di stribution and receipt of child pornography under Section 2552(a)(2). See United States v. McGarity , 669 F.3d 1218, 1251 (11th Cir. 2012). Additionally, in Heck v. Humphrey , the Supreme Court hel d that an individual seeking damages for “harm caused by actions whose unlawfulness would render a conviction or sentence invalid” must “prove tha t the convictionor sentence h as been reversed on direct appeal, expunged by executive order, . . . or called into question by afederal court’s issuance of a writ of habeas corpus.” 512 U.S. 477, 486-87 (1994); see also Williams v. Hill , 74 F.3d 1339, 1430-41 (D.C. Cir. 1996) (applying Heck to Bivens actions). Because Mr. Fogle has not alleged that his conviction was set aside, he ca nnot recover damages for the act ions of those who allegedly brought about his conviction. There fore, Mr. Fogle’s claims wi th respect to the Judicial Defendants will be dismissed.

B.
Mr. Fogle alleges that the Assistant United States Attorney who prosecuted him, Steven DeBrota, also obstructed justice and violated RICO. Mr. Fogle asserts that AUSA DeBrota fabricated an illegal conspiracycharge against him (already di scussed and dispelled above), defrauded him in order to gain acc ess to the assets of Jared Fo gle, Inc., caused Mr. Fogle to send emails across state lines to hi s attorneys in or der to induce h im to commit wire fraud, induced a guilty plea by coerc ion, and knowingly allowed Judge Walton-Pra tt to enter findings that altered7 the content of the attorneys’ arguments in his proceedings. Co mpl. 5 ¶¶ 2-4, 7 ¶ 9. Prosecutorial immunity protects AUSA DeBrota from suits for mo ney damages. A prosecutor is entitled to “abso lute immunity” when he acts as a n advocate, “that is, in his role as a participant in the judicial pha se of the criminal process.” Gray , 712 F.2d at 499. Mr. Fogle alleges no facts to support that AUSA DeBrota was acting outsid e of the scope of his prosecutorial role; he only makes threadbare legal conclusions that AUSA DeBrota acted with a corrupt intent. See, e.g. , Compl. 5 ¶¶ 3-4 (“Defendant D EBROTA, did in fact, create an ‘ artifice and scheme to defraud’ for the purpose of obtaining an illegal conviction(s) against FOGLE, for the purpose of gaining unlawful access to assets of the Jared F ogle, INC. Florida Corporation, . . . as such, DEBROTAS charge shows ‘specific int ent’ to defraud FOGLE”). Mr. Fogle’s conclusory allegati ons do not support a charge thatAUSA DeBrota acted outside his legitimate authority to pursue criminal charges, and Mr. Fogle’ s action against AUSA DeBrota is also barred by Heck v. Humphrey . Therefore, the claim against AUSA DeBrota will be dismissed.

C.
Mr. Fogle also filed suit agains t two out of the three attorne ys who represented him in his criminal proceedings in 2015. Compl. 1; United States v. Fogle , No. 1:15-cr-00159, 2015 WL 7253333 (S.D. Ind. Nov. 16, 2015). Mr. Fogle contends that the y “violated their ethical duties” by failing to request the search warrant or the affidavit suppo rting the application for the warrant authorizing the search of Mr. F ogle’s home, failing to correct the prosecution’s leveling of a8 conspiracy charge 2 and encouraging Mr. Fogle to plead guilty to it, and failing t o ensure Mr. Fogle’s restitution was not pa id to unharmed parties. Comp l. 6-7. Mr. Fogle fails to make a substantive argument that his former attorneys obstructed justice or violated RICO. Obstr uction of justice requires “an intent to influence judicial or grand jury proceedings” and that the accused take action that has the “natural and probable effect of interfering with the due adm inistration of justice.” United States v. Aguilar , 515 U.S. 593, 599 (1995). Mr. Fogle has establishe d no factual basis for his for mer attorneys having an intent to influence judicial proceedings or to interfere with the “due ad ministration of justice.” Id. He simply labels their actions as “r eek[ing] of intent to corrupt a judicial process” and cites to the obstruction of justice statut e. Compl. 7. Furthermore, to be liable under RICO, a defendant must have directed an enterprise to c ommit a pattern of fraudulent a ctivity. Reves v. Ernst & Young , 507 U.S. 170, 179 (1993). Mr. Fogle ma kes no reference to any enterprise through which the attorneys might have been conducting their affairs. See generally Compl. 6-7. The allegations Mr. Fogle mak es regarding corruption or obstruc tion of justice are legal conclusions without any support based on the facts that he has alleged. See id. ; Twombly , 550 U.S. at 555 (explaining that “a plaintiff's obligation to provi de the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than l abels and conclusions, and a for mulaic recitation of the elements of a cause of action will not do”). M r. Fogle’s complaint against his former attorneys, assuming the truth of the factual allegations m ade, appears at most to be a mere disagreement over trial strategy. See Strickland v. Washington , 466 U.S. 668, 689 (1984))

. On the facts as alleged, there

2 As already described above in Section III.A., the conspiracy charge is a legitimate criminal offense.9 is no factual basis for an obstruc tion of justice or RICO claim . Therefore, the claims against Messrs. Margolis and DeVooght will be dismissed.

D.
Mr. Fogle has also filed suit against the “Attorney General of the United States, Obama Administration.” Compl. 1, 14-15. M r. Fogle has not named a s pecific holder of that office other than to name the office itself. See generally id. Under the doctrine of sovereign immunity, the United States cannot be sued unless the government consents to the lawsuit. Mitchell , 463 U.S. at 212. Furthermore, soverei gn immunity bars suits for mo ney damages against officials acting in their official capacity. Clark , 750 F.2d at 103. Mr. Fogle has not argued that the Attorney General waived his enti tlement to sovereign immunity o r acted outside of his official capacity. See generally Compl. 14-15. On the contrary, his allegations indicate that h e is suing the Attorney General merely because inferior officers have alle gedly violated the law, which means that the only plausible basi s for the Attorney General’s liability are actions undertaken in his official capacity. Compl . 15. Since Mr. Fogle has failed to establish that sovereign immunity was waived here or that the Atto rney General acted outside of h is official capacity, the claims against him will be dismissed.