Dillard v. U.S. Department of Justice et al

Filing 8

MEMORANDUM OPINION. Signed by Judge James H Hancock on 2/25/2013. (JLC)

FILED
2013 Feb-25 AM 10:51
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
TAMURIEL L. DILLARD,

)
)
Plaintiff,
)
)
vs.
)
)
U.S. DEPARTMENT OF JUSTICE,
)
FEDERAL BUREAU OF INVESTIGATION, )
CITY OF TUSCALOOSA,
)
)
Defendants
)

Case No. 2:12-cv-3875-JHH

MEMORANDUM OPINION
This is a pro se civil rights action filed by the plaintiff in November 15, 2012. The plaintiff
is not a prisoner and, therefore, not subject to the provisions of the Prison Litigation Reform Act.
The original complaint names as defendants the “U.S. Department of Justice” and the “Federal
Bureau of Investigation-Birmingham,” alleging the following:
I was harassed and continue to be harassed by the FBI due to corrupt agents who
were following my now ex husband Benard Mungai Ndaba. I contacted the FBI in
DC and they ignored my request for assistance and right under FOIPA to know what
was going on in my life. I have lossed [sic] my job, house, car, marriage, and have
been alienated from friends, family, church, and I don’t trust anybody fully around
me. I have no income or trust in the government because they stood by and watched
my life be destroyed because of an exception in the FOIPA. I was also kicked out of
the University of Alabama and arrested due to this corruption. I was also
misdiagnosed at Brookwood Hospital and had my meds tampered with by the DEA.

Attached to the pro se complaint is a copy of a letter to the plaintiff from the Justice Department’s
Office of Information Policy, affirming on her appeal the FBI’s decision to deny her Freedom of
Information Act request. In doing so, the appeals officer affirmed that the FBI correctly refused to
confirm or deny any person’s “placement on any government watch list,” explaining that “the FBI

properly refused to confirm or deny the existence of any records responsive to your request because
the existence of such records is protected from disclosure pursuant to 5 U.S.C. § 552(b)(7)(E).” The
appeal letter further confirmed that no other records relating to the plaintiff could be located.”
Plaintiff sought and was granted leave to file the complaint in forma pauperis, under
28 U.S.C. § 1915(a). At the time her IFP application was granted, plaintiff was directed to amend
the complaint to set out factual allegations supporting her constitutional claims. Plaintiff responded,
filing an amendment to her complaint on December 6, 2012 (Doc. 4), in which she sought to add
several new defendants, including (1) CVS, Walgreen’s, and the Alabama Board of Pharmacy,
alleging they “were negligent in providing me tampered medication that was used by the FBI to
attempt and frame me as a drug abuser”; (2) the Social Security Administration and the State of
Alabama for “assisting the FBI in harassing” her in the workplace by creating a hostile work
environment; (3) the United States Postal Service for “tampering” with her mail; (4) Brookwood
Hospital for assisting the FBI in its harassment of her, misdiagnosing her with a psychotic condition,
and violating HIPPA by notifying her ex-husband that she was a patient at the hospital; (5) the
Jefferson County Sheriff’s Department for working with the FBI to set her up to be arrested for
trespass and burglary; (6) the University of Alabama for violating her privacy by requesting
identification, asking that she see a psychiatrist, and by kicking her out of school; and (7) the
Landmark at Magnolia Glen apartments for allowing someone to enter her apartment while she was
away.

Attached to the amendment is what purports to be a letter to the Social Security

Administration in which she explains her need for disability benefits arising from her workplace
harassment and her fear that she might harm someone if required to return to work.

2

On January 3, 2013, plaintiff filed another amendment to her complaint (Doc. 6), again to
add a new defendant, the City of Tuscaloosa “for the role that the city played in my harassment while
I was a student at the University of Alabama.” In this amendment she alleges that staff and patrons
of the Tuscaloosa public bus system have expressed a dislike of her on several occasions, all as part
of the harassment being carried out by the FBI. She also explained that she handwrites her filings
in this matter because the FBI has forged a number of documents, including a life insurance policy
using her married name and other paperwork from the University of Alabama.
Although the plaintiff is not a prisoner, her application for leave to file the complaint in
forma pauperis under § 1915(a) still requires to the court to review the complaint sua sponte under
§ 1915(e)(2)(B)(i)–(iii) for frivolousness, maliciousness, failure to state a claim, or stating a claim
against an immune defendant. See Boyington v. Geo Group, Inc., 2009 WL 3157642, *1 (M.D. Fla.
Sept. 25, 2009). This screening standard can be stated as follows:

A complaint filed in forma pauperis which fails to state a claim under Federal Rule
of Civil Procedure 12(b)(6) is not automatically frivolous. Neitzke v. Williams, 490
U.S. 319, 328, 109 S. Ct. 1827, 104 L. Ed. 2d 338 (1989). Rather, the test for
granting a § 1915 dismissal is whether the claim lacks arguable merit either in law
or fact. Id. at 325; Mitchell v. Brown & Williamson Tobacco Corp., 294 F.3d 1309
(11th Cir. 2002); Bilal v. Driver, 251 F.3d 1346 (11th Cir. 2001). Additionally,
§ 1915 requires dismissal when the legal theories advanced are “indisputably
meritless,” Nietzke, 490 U .S. at 327; when the claims rely on factual allegations
which are “clearly baseless” Denton v. Hernandez, 504 U.S. 25, 32, 112 S. Ct. 1728,
118 L. Ed. 2d 340 (1992); or, when it appears that the plaintiff has little or no chance
of success. Bilal, 251 F.3d at 1349.

Boyington v. Geo Group, Inc., 2009 WL 3157642, *1 (M.D. Fla. Sept. 25, 2009); see also Stringer
v. Doe, 2011 WL 2838128, *1 (N.D. Fla. June 16, 2011) rep’t and recom’n approved, 2011 WL

3

2909369 (N.D. Fla. July 18, 2011), aff'd, 2013 WL 163833 (11th Cir. Jan. 15, 2013). In Denton v.
Hernandez, 504 U.S. 25, 31, 112 S. Ct. 1728, 1733, 118 L. Ed. 2d 340 (1992), Supreme Court
described circumstances under which a claim is based on clearly baseless factual allegations where
the facts alleged are “fanciful” or “delusional.” The Court explained:

As we stated in Neitzke, a court may dismiss a claim as factually frivolous only if the
facts alleged are “clearly baseless,” 490 U.S., at 327, 109 S. Ct., at 1833, a category
encompassing allegations that are “fanciful,” id., at 325, 109 S.Ct., at 1831,
“fantastic,” id., at 328, 109 S. Ct., at 1833, and “delusional,” ibid. As those words
suggest, a finding of factual frivolousness is appropriate when the facts alleged rise
to the level of the irrational or the wholly incredible, whether or not there are
judicially noticeable facts available to contradict them. An in forma pauperis
complaint may not be dismissed, however, simply because the court finds the
plaintiff's allegations unlikely. Some improbable allegations might properly be
disposed of on summary judgment, but to dismiss them as frivolous without any
factual development is to disregard the age-old insight that many allegations might
be “strange, but true; for truth is always strange, Stranger than fiction.” Lord Byron,
Don Juan, canto XIV, stanza 101 (T. Steffan, E. Steffan & W. Pratt eds. 1977).

Denton v. Hernandez, 504 U.S. 25, 32-33, 112 S. Ct. 1728, 1733-34, 118 L. Ed. 2d 340 (1992).
Aside from most of plaintiff’s claims being legally meritless, the court is convinced that plaintiff’s
complaint, both originally and as amended, alleges facts that are irrational and wholly incredible, to
the point of being clearly baseless and frivolous.
At the outset, the United States Department of Justice and the FBI are not suable entitles.
They are but a department and an agency of the United States, having not separate legal existence
from the United States. The United States itself is not suable in this case because of its sovereign
immunity. The campaign of harassment plaintiff alleges is not a tort suable under the Federal Torts
Claim Act, 28 U.S.C. § 1346(b), which is limited generally to actions sounding in negligence. The
FTCA does not waive the United States’ sovereign immunity as to intentional torts, except for abuse
4

of process, assault and battery, false arrest, and malicious prosecution by a “law enforcement”
agency. Sheridan v. United States, 487 U.S. 392, 398, 108 S. Ct. 2449, 2454, 101 L. Ed. 2d 352
(1988). Conceding that the FBI is a law enforcement agency, the campaign of harassment described
by plaintiff does not fit within the exception, which is narrowly construed. She does not allege that
the FBI arrested her, prosecuted her, or assaulted her. Rather, she alleges that they harassed her by
following her, watching her, and investigating her. Even if she has alleged that the FBI revealed
private information about her to her employer, co-workers, and strangers, this could only amount to
invasion of privacy or defamation. Such intentional torts are not suable, even against law
enforcement agencies, under the FTCA. See O'Ferrell v. United States, 968 F. Supp. 1519, 1527
(M.D. Ala. 1997), aff'd, 253 F.3d 1257 (11th Cir. 2001).
The complaint cannot be construed as alleging a Bivens action because plaintiff has not
named any individual federal officers or employees as defendants. Bivens v. Six Unknown Federal
Narcotics Agents, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971). A Bivens action cannot
be stated against a federal department or agency. “Because the logic of Bivens itself does not
support such an extension, we decline to take this step [of allowing Bivens action against agencies
as well as individual federal agents].” F.D.I.C. v. Meyer, 510 U.S. 471, 473, 114 S. Ct. 996, 999,
127 L. Ed. 2d 308 (1994).
Further, insofar as plaintiff is attempting to state a claim under the Freedom of Information
Act, her complaint makes clear that no claim exists. The letter attached to the original complaint
reveals that plaintiff made a FOIA request to the FBI, which was denied under an exception found
at 5 U.S.C. § 552(b)(7)(E) for preserving the secrecy of law enforcement investigative techniques
and procedures. Otherwise, the letter reported, the FBI had no other records applicable to plaintiff.
5

Thus, on the face of plaintiff’s complaint and its exhibits, there is no violation of FOIA. Plaintiff
alleges that FBI agents followed and watched her, and this clearly describes law enforcement
techniques and procedures. Also, the use of “watch lists” is a law enforcement procedure. Thus, the
exception cited clearly applied to the types of conduct plaintiff describes. Because the exception
correctly shielded the requested information from disclosure, plaintiff has no claim under FOIA,
based on her own complaint and exhibits.
Even beyond the lack of legal merit in plaintiffs’ claims, the court is convinced that her
claims fit that class of allegations that are fanciful, delusional, irrational, and wholly incredible under
Denton v. Hernandez. The plaintiff alleges that the FBI targeted her for a campaign of harassment,
for no apparent reason, that involved conspiring1 with CVS, Walgreen’s, the Alabama Board of
Pharmacy, the State of Alabama, the Jefferson County Sheriff’s Department, Brookwood Hospital,
the Postal Service, the Landmark at Magnolia Glen apartments, the University of Alabama, the City
of Tuscaloosa, and the Social Security Administration. In support of this, she alleges nothing more
than conclusory assertions that the FBI revealed personal and medical information about her to her
employer and co-workers for the purpose of creating a hostile work environment. Likewise,
apparently she alleges that the FBI revealed such information about her to the bus drivers and
passengers in Tuscaloosa, resulting in hostility toward her on Tuscaloosa’s public transportation
system. She asserts with no factual support that various pharmacies, at the behest of the DEA or FBI
or both, have tampered with her medications; that the Postal Service has opened her mail; that her
1

Insofar as plaintiff alleges a conspiracy between the FBI and other putative defendants, she
has not alleges sufficient facts from which the court an reasonably infer a plausible conspiracy. A
conclusory allegation is not enough. The plaintiff must allege enough facts to make the existence
of a conspiracy plausible. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L.
Ed. 2d 929 (2007).
6

apartment manager has allowed strangers into her apartment while she was away; that Brookwood
Hospital conspired with the FBI to diagnose her with a psychotic condition; and that the University
of Alabama has invaded her privacy and denied her an educational opportunity in concert with the
FBI, who has forged and tampered with her documents. Particularly noteworthy are her allegations
with respect to the Jefferson County Sheriff’s Office,2 where she alleges that she was set up by the
FBI to be arrested by the local sheriff. She states:

The Sheriff’s Office of Jefferson County worked with the FBI to set me up on July
15, 2011 at 6109 Lakeside Drive in Mount Olive. I was told by the FBI through their
techniques and procedures to go to this address and wait inside it after being shown
the house the week prior. I was initially charge with Criminal trespassing but it [was]
increased to Burglary I by Jason R. McCoy, a Brookside deputy who acted like he
was the owner of the house and also a Pleasant Grove officer.

(Doc. 4, p. 5 of 8) (Italics added). Sadly, these delusional allegations are consistent with plaintiff’s
own letter to the Social Security Administration, in which she explains her mental disability and,
alarmingly, her desire to “run down” co-workers or harm innocent people if she is forced to go back
to work. She was hospitalized at Brookwood Hospital for schizophrenia.
Because the factual allegations in the original and amended complaints related to a campaign
of harassment against plaintiff by the FBI are “fantastic” and “delusional,” they are wholly incredible
and irrational. It is not simply a case where the court finds it “unlikely” that plaintiff can prove her

2

Of course, the Jefferson County Sheriff’s Department also is not a suable entity. “We agree
with the magistrate judge’s conclusion, which was adopted by the district court, that the Jefferson
County Sheriff’s Department is not a legal entity and, therefore, is not subject to suit or liability
under section 1983.” Dean v. Barber, 951 F.2d 1210, 1214 (11th Cir. 1992).

7

allegations; these allegations go beyond strange to delusional. Under Denton and Neitzke, they are
frivolous for purposes of § 1915(e) and are due to be dismissed.
By separate order, the court will dismiss this action without prejudice as frivolous.
The Clerk is DIRECTED to mail a copy of the foregoing to the plaintiff.
DONE this the

25th

day of February, 2013.

SENIOR UNITED STATES DISTRICT JUDGE

8