BALLESTEROS

v.

BROWN

This cause comes before the Court on Defendants Richard Brown (“Brown”), Wilfredo Ferrer (“Ferrer”), and the United States of America’s Motion to Dismiss the Complaint. DE 19. The Court granted Plaintiff Ricardo Ballesteros (“Ballesteros”) an extension of time to February 23, 2021, to respond to the Motion to Dismiss. DE 21. The Court has received no response to date. Under Rule 7.1(c) of the Local Rules for the Southern District of Florida, the failure to file a timely response is sufficient cause for granting the Motion to Dismiss by default. For that reason, as well as the other reasons given in this Order, the Motion to Dismiss is granted.

I. PLAINTIFFS’ CLAIMS In this action, pro se Plaintiffs Ballesteros and the Estate of Elena Garcia (“the Estate”) sue Assistant United States Attorney Brown, former United States Attorney Ferrer, and the United States.¹ DE 1. Plaintiffs allege that Elena Garcia owned an apartment in Miami Beach, Florida. That apartment was the subject of a forfeiture proceeding before a different federal judge of this

II. LEGAL STANDARD

A court may grant a motion to dismiss a pleading if the pleading fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). A court ruling on a motion to dismiss accepts the well-pled factual allegations as true and views the facts in the light most favorable to the plaintiff. Jones v. Fransen, 857 F. 3d 843, 850 (11th Cir. 2017). “Under Rule 12(b)(6), dismissal is proper when, on the basis of a dispositive issue of law, no construction of the factual allegations will support the cause of action.” Allen v. USAA Cas. Ins. Co., 790 F. 3d 1274, 1278 (11th Cir. 2015) (quotation marks omitted). A “complaint may be dismissed under Rule 12(b)(6) when its own allegations indicate the existence of an affirmative defense, so long as the defense clearly appears on the face of the complaint.” Quiller v. Barclays Am./Credit, Inc., 727 F. 2d 1067, 1069 (11th Cir. 1984), aff’d en banc, 764 F. 2d 1400 (11th Cir. 1985).

III. ANALYSIS

A “prosecutor enjoys absolute immunity from allegations stemming from the prosecutor’s function as an advocate.” Hart v. Hodges, 587 F. 3d 1288, 1295 (11th Cir. 2009) (quotation marks

Plaintiffs sue Attorneys Brown and Ferrer for pursuing the forfeiture proceeding. See DE¹ at 2 (alleging that Attorneys Brown and Ferrer “conspired to deprive Ms. Garcia and her heirs of their property; abusing their power and using the positions they occupied”).

Because Attorneys Brown and Ferrer enjoy absolute immunity for functioning as advocates of the United States in the forfeiture proceeding, Count¹ is dismissed. “Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.” Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475 (1994).

Sovereign immunity also bars claims brought against federal employees in their official capacities. See Kentucky v. Graham, 473 U.S. 159, 167 (1985).

The United States has not waived sovereign immunity for due process violations. See Boda v. United States, 698 F. 2d 1174, 1176 (11th Cir. 1983). Due to the United States’ sovereign immunity, Count² is dismissed. Plaintiffs do not have the authority to initiate a prosecution for treason and do not have standing to sue for the prosecution of others. See Smith v. Shook, 237 F. 3d 1322, 1324 (11th Cir. 2001) (stating that a “private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another” (quotation marks omitted)).

Therefore, Count 3 is dismissed.

Finally, to the extent that Plaintiffs use this lawsuit as a vehicle to challenge the rulings and outcome of the forfeiture proceeding, this Court is not an appellate court and cannot grant appellate relief.

IV. CONCLUSION

For the foregoing reasons, Defendants’ Motion to Dismiss the Complaint [DE 19] is GRANTED. For the same reasons, the Court concludes that permitting Plaintiffs an opportunity to amend the Complaint would be futile. See Bryant v. Dupree, 252 F. 3d 1161, 1163 (11th Cir. 2001) (explaining that a plaintiff generally must be given at least one opportunity to amend a complaint before dismissal with prejudice when a more carefully drafted complaint might state a claim for relief, but need not be given such an opportunity when amendment would be futile).

Therefore, the Complaint [DE¹] is DISMISSED WITH PREJUDICE. The Clerk of the Court is instructed to CLOSE THIS CASE. All pending motions are DENIED AS MOOT, all hearings are CANCELED, and all deadlines are TERMINATED. DONE AND ORDERED in Chambers, West Palm Beach, Florida, this 5th of March, 2021. _ io Fob A atoap ROBIN. ROSENBERG (7

UNITED STATES DISTRICT JUDGE