Gobin v. Holder

Filing 7

MEMORANDUM OPINION AND ORDER DISMISSING CASE that defendant's motion to dismiss is GRANTED, and plaintiff's complaint is DISMISSED with prejudice; Costs are taxed to plaintiff as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 1/2/2013. (AHI)

FILED
2013 Jan-02 PM 01:06
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
TAMERA K. GOBIN,
Plaintiff,
vs.
ERIC HOLDER,
Defendant.

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Civil Action No. CV-12-S-02861-NE

MEMORANDUM OPINION AND ORDER
This case is before the court on a motion by defendant, U.S. Attorney General
Eric Holder, to dismiss the complaint for failure to state a claim upon which relief can
be granted or, in the alternative, for summary judgment.1 Pro se plaintiff, Tamera K.
Gobin, seeks $100 million in damages for, among other things, violations of her
privacy resulting from alleged, extensive governmental surveillance.2 Although the
complaint contains fourteen numbered paragraphs, it does not contain discrete counts
laying out plaintiff’s legal claims. See Fed. R. Civ. P. 10(b).
In support of his motion to dismiss, the Attorney General argues that the

1

Doc. no. 5 (Motion to Dismiss). The court notes that the caption of plaintiff’s complaint
ambiguously names “Eric Holder U.S. Department of Justice, Defendant(s),” as the defendant(s).
Doc. no. 1 (Complaint). However, the substance of the complaint clearly indicates that Eric Holder
is the only defendant. See id. ¶ 14 (“Defendant, Eric Holder, is the Attorney General of the United
States . . . .”).
2

See doc. no. 1 (Complaint) ¶¶ 1, 3-5, 8-9, 11.

complaint is frivolous and “sufficiently fantastic to defy reality.”3 In the alternative,
defendant interprets plaintiff’s complaint as stating claims against the United States
that are barred by the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680
(“FTCA”) and, therefore, argues that summary judgment is proper because sovereign
immunity bars the action.4 Upon consideration, defendant’s motion to dismiss will
be granted.
I. LEGAL STANDARDS
Federal Rule of Civil Procedure 12(b) permits a party to move to dismiss a
complaint for, among other reasons, “failure to state a claim upon which relief can be
granted.” Fed. R. Civ. P. 12(b)(6). This rule must be read together with Rule 8(a),
which requires that a pleading contain only a “short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). While that
pleading standard does not require “detailed factual allegations,” Bell Atlantic Corp.
v. Twombly, 544 U.S. 544, 550 (2007), it does demand “more than an unadorned, thedefendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citations omitted).
To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to “state a claim to relief that
is plausible on its face.” [Bell Atlantic Corp., 550 U.S.] at 570. A claim
3

Doc. no. 5 (Motion to Dismiss), at 3-5.

4

Id. at 5-8.
2

has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged. Id., at 556. The plausibility standard
is not akin to a “probability requirement,” but it asks for more than a
sheer possibility that a defendant has acted unlawfully. Ibid. Where a
complaint pleads facts that are “merely consistent with” a defendant’s
liability, it “stops short of the line between possibility and plausibility of
‘entitlement to relief.’” Id., at 557 (brackets omitted).
Iqbal, 556 U.S. at 678 (alteration supplied). Moreover, a court need not accept a
complaint’s legal conclusions as true. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).
As always is the case in the context of ruling upon a motion to dismiss, the
district court is required to assume that
the facts set forth in the plaintiff’s complaint are true. See Anza [v. Ideal
Steel Supply Corp.], 547 U.S. 451, [453,] 126 S. Ct. [1991,] 1994
[(2006)] (stating that on a motion to dismiss, the court must “accept as
true the factual allegations in the amended complaint”); Marsh v. Butler
County, 268 F.3d 1014, 1023 (11th Cir. 2001) (en banc) (setting forth
the facts in the case by “[a]ccepting all well-pleaded factual allegations
(with reasonable inferences drawn favorably to Plaintiffs) in the
complaint as true”). Because we must accept the allegations of
plaintiff’s complaint as true, what we set out in this opinion as “the
facts” for Rule 12(b)(6) purposes may not be the actual facts.
Williams v. Mohawk Industries, Inc., 465 F.3d 1277, 1281 n.1 (11th Cir. 2006)
(alterations supplied).
When, as here, the plaintiff is proceeding pro se, the “pleadings are held to a
less stringent standard than pleadings drafted by attorneys and will, therefore, be
liberally construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir.
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1998); see also Anyanwu v. Brumos Motor Cars, Inc., No. 11-12488, 2012 WL
5476924, at *1 (11th Cir. Nov. 13, 2012). Nevertheless, a court is not at liberty to
serve as de facto counsel to a pro se party, or to effectively rewrite otherwise defective
pleadings. See Martinez v. Burns, 459 F. App’x 849, 850 (11th Cir. 2012) (per
curiam) (citing GJR Investments, Inc. v. County of Escambia, Florida, 132 F.3d 1359,
1369 (11th Cir. 1998)).
II. FACTS AS ALLEGED
Since at least 1987, the United States has extensively monitored — in plaintiff’s
words, “spied on” — plaintiff’s personal activities without her consent.5 During that
time, the United States also archived the information it collected about plaintiff.6
According to plaintiff, the surveillance activities included
illegal information gathering/surveillance through unreasonable
warrantless searches and the creation of personal records through
unlawful interception and eavesdropping, wire tapping or bugging,
tampering with mail, misuse of communication systems (land lines, cell
phones, electronic communications), and microchipping of her body to
collect data on the plaintiff 24 hours a day (taking note of even private
“thoughts”)[,] which w[ere] then made public.7
Plaintiff also says that her medical records, social security information, and passwords

5

Doc. no. 1 (Complaint) ¶ 5.

6

Id.
Id. ¶ 4 (alterations supplied).

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were recorded and disseminated.8 She further says that her personal, medical, and
financial information was “recklessly and negligently ‘leaked’” onto the internet.9
Plaintiff alleges that she has suffered numerous injuries as a result of the
surveillance program. She attempted to write a book in 2010 and 2011, but her efforts
were thwarted by the publication of the book’s contents, which were on her private
laptop computer.10 Due to the microchipping of her body, plaintiff’s “private
thoughts” have been publicized, she has developed frequent migraines and poor vision
in her left eye, and she has shown symptoms of Trimethylaminuria (TMAU).11
Defendant, Eric Holder, is the Attorney General of the United States. Plainitff
states that he is aware of the surveillance program that has been monitoring her.12 She
alleges that defendant — along with President Barack Obama and the United States
Department of Justice (who and which, respectively, are not named as defendants) —
refuses to acknowledge the existence of the program, or take responsibility for the
denial of plaintiff’s rights.13 Plaintiff attributed defendant’s reticence to the fact that
8

Id. It is unclear to what the passwords granted access.

9

Id. ¶¶ 1, 5.

10

Id. ¶ 10.

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Doc. no. 1 (Complaint) ¶ 6. Apparently, the primary symptom of TMAU is the emission
of a strong, fishy odor from one’s sweat, urine, and breath caused by the inability to metabolize an
enzyme. See ABC NEWS, More Information on TMAU, Aug. 8, 2008 (available at
http://abcnews.go.com/Primetime/story?id=2288096) (last visited Nov. 27, 2012);
http://tmaufoundation.org/index.html (last visited Nov. 27, 2012).
12

Id. ¶¶ 9, 14.

13

Id. ¶ 9.
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it 2012 was an election year, and “President Obama does not want the American
people to know about domestic surveillance or human microchipping for fear of his
own political demise.”14
On April 25, 2012, plaintiff received a letter from Phyllis Pyles, the Director
of the Department of Justice’s Tort Branch, informing plaintiff that her claim was not
compensable under the Federal Tort Claims Act.15
III. DISCUSSION
Plaintiff’s complaint does not contain numbered counts. Consequently, the
court must determine the claims she attempts to assert. At minimum, she makes two
constitutional claims: one for violation of her Fourth Amendment right against
unreasonable searches and seizures; and another for violation of her Fifth Amendment
right to due process of law. The Fourth Amendment claim is supported by plaintiff’s
numerous allusions to violations of her privacy, warrantless searches, interceptions
of her communications, and a fleeting reference to the Fourth Amendment.16 The
Fifth Amendment claim is supported by plaintiff’s allegation that a microchip was

14

Id. The court takes judicial notice of the fact that President Obama won reelection on
November 6, 2012.
15

Id. ¶ 2.

16

See id. ¶¶ 1, 4-6, 9-10.
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implanted in her body without consent, and her allegation that she was denied due
process.17
In response to defendant’s motion to dismiss, plaintiff asserts that her
constitutional claims are stated under 42 U.S.C. § 1983.18 Section 1983 provides a
cause of action for violations of federally-secured rights, but only against defendants
acting under color of state law. See 42 U.S.C. § 1983. For violations of constitutional
rights by a defendant who, as here, allegedly acted under the color of federal law,
plaintiff must proceed under the implied private right of action articulated in Bivens
v. Six Unknown Named Agents, 403 U.S. 388 (1971). The Bivens opinion recognized
such a cause of action for claims made pursuant to the Fourth Amendment, id. at 389,
and the Supreme Court later reached the same conclusion regarding Fifth Amendment
Due Process claims.

See Davis v. Passman, 442 U.S. 228, 229-30 (1979).

Consequently, the court construes plaintiff’s complaint as alleging Fourth and Fifth
Amendment causes of action brought pursuant to Bivens and Davis.
The nature of any other claim (or claims) asserted by plaintiff is not as clear.
Interestingly, plaintiff’s response to defendant’s motion to dismiss only discusses her
constitutional claims,19 thereby implying that plaintiff does not assert any other

17

See doc. no. 1 (Complaint) ¶¶ 4, 6, 9.

18

See doc. no. 6 (Plaintiff’s Response), at 3-4.
See id.

19

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claims.20 Nevertheless, the complaint itself is the authoritative source of plaintiff’s
claims.
The court construes plaintiff’s complaint as alleging a third claim under the
Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680 (“FTCA”). Early in the
complaint, plaintiff notes that she received a letter from the Department of Justice’s
Tort Branch informing her that her administrative claim is not compensable under the
FTCA.21 According to plaintiff, “[t]he letter of denial states that the plaintiff may file
suit in Federal District Court. I[,] therefore, invoke federal jurisdiction.”22 The court
interprets that language as plaintiff’s attempt to allege a FTCA claim.
In addition to multiple references to the interception and dissemination of her
private information and communications, plaintiff alleges that her “[m]edical records
and visits were recorded and shared in violation of the federal Privacy Act, as well as
all passwords and social security information.”23

Thus, plaintiff may also be

attempting to assert a claim under the Privacy Act of 1974, 5 U.S.C. § 552a et seq.
Defendant offers two arguments in support of his motion to dismiss. He first
asserts that the complaint is “frivolous.”24 Second, defendant, citing the dissent in
20

Alternatively, plaintiff’s failure to mention any non-constitutional claims in her response
could indicate her belief that defendant’s motion posed no threat to those claims.
21

Doc. no. 1 (Complaint) ¶ 2.
Id.
23
Id. ¶¶ 1, 4-5.
22

24

Doc. no. 5 (Motion to Dismiss), at 3.
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Ashcroft v. Iqbal, 556 U.S. 662 (2009), contends that a claim may be dismissed when
it is “sufficiently fantastic to defy reality as we know it.”25
Defendant cites Carroll v. Gross, 984 F.2d 393 (11th Cir. 1993), for the
proposition that frivolous complaints may be dismissed, and that frivolousness exists
when factual allegations are clearly baseless, or when legal theories are indisputably
meritless.26 See Carroll, 984 F.2d at 393. That case was decided under 28 U.S.C. §
1915, however, which enumerates legal standards when a plaintiff is proceeding in
forma pauperis. See id.; 28 U.S.C. § 1915. In particular, § 1915(e)(2) instructs
courts to dismiss a case whenever the court determines that it is “frivolous or
malicious.” 28 U.S.C. § 1915(e)(2)(B)(I). That standard is broader — i.e., grants the
court greater leeway to dismiss — than the standard of Federal Rule of Civil
Procedure 12. See Sun v. Forrester, 939 F.2d 924, 925 (11th Cir. 1991). Although
plaintiff is proceeding pro se, she is not proceeding in forma pauperis, because she
paid the filing fee upon initiation of her suit. Thus, the standard articulated by 28
U.S.C. § 1915 — as well as Carroll’s gloss upon that statute — is not applicable, and
the court must accept plaintiff’s allegations as true. As the Supreme Court has noted,
Section 1915

25
26

Id. at 4.
Id.
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is designed largely to discourage the filing of, and waste of judicial and
private resources upon, baseless lawsuits that paying litigants generally
do not initiate because of the costs of bringing suit and because of the
threat of sanctions for bringing vexatious suits under Federal Rule of
Civil Procedure 11. To this end, the statute accords judges not only the
authority to dismiss a claim based on an indisputably meritless legal
theory, but also the unusual power to pierce the veil of the complaint's
factual allegations and dismiss those claims whose factual contentions
are clearly baseless.
Neitzke v. Williams, 490 U.S. 319, 327 (1989) (emphases supplied). In short, as a socalled “paying litigant,” neither § 1915 nor its rationale applies to plaintiff.
Defendant’s second argument fares better. Defendant maintains that Iqbal
permits dismissal when a complaint defies reality as we know it.27 As Justice Souter
wrote, the sole exception to the rule that courts must accept the allegations of a
plaintiff’s complaint as true, see, e.g., Iqbal, 556 U.S. at 678, and Williams v. Mohawk
Industries, Inc., 465 F.3d at 1281 n.1, “lies with allegations that are sufficiently
fantastic to defy reality as we know it: claims about little green men, or the plaintiff’s
recent trip to Pluto, or experiences in time travel.” Iqbal, 556 U.S. at 696 (Souter, J.,
dissenting). Although that observation comes from the Iqbal dissent, courts have
subsequently endorsed such an exception to the Twombly/Iqbal pleading standard.
See, e.g., Tooley v. Napolitano, 586 F.3d 1006, 1009-10 (D.C. Cir. 2009); Courie v.
Alcoa Wheel & Forged Products, 577 F.3d 625, 629-30 (6th Cir. 2009); Buckner v.

27

See doc. no. 5 (Motion to Dismiss), at 3.
10

Montgomery County Jobs & Family Services Division, No. 3:11-CV-320, 2012 WL
786948, at *2 (S.D. Ohio Mar. 9, 2012); Mitchell v. DMHA, 3:11-CV-160, 2011 WL
4067398, at *1 (S.D. Ohio June 10, 2011), report and recommendation adopted by,
3:11-CV-160, 2011 WL 4067340 (S.D. Ohio Sept. 13, 2011); McGraw v. Wachovia
Securities, LLC, 08-CV-2064-LRR, 2009 WL 2949290, at *2 (N.D. Iowa Sept. 10,
2009); Walton v. Walker, CIV. 08-CV-486-MJR, 2009 WL 1470409, at *4 (S.D. Ill.
May 27, 2009) aff’d, 364 F. App’x 256 (7th Cir. 2010).
Indeed, one district court in this circuit has already dismissed a similar
complaint — one alleging governmental implantation of surveillance devices in the
plaintiff’s body with consent of the plaintiff — under the exception suggested in
Justice Souter’s dissent. See Williams v. Karf, No. CV410-221, 2010 WL 5624650,
at *1 (S.D. Ga. Dec. 20, 2010), report and recommendation adopted by, No. CV410221, 2011 WL 201770 (S.D. Ga. Jan. 19, 2011).
The allegations of this plaintiff’s complaint are “sufficiently fantastic to defy
reality as we know it.” Iqbal, 556 U.S. at 696 (Souter, J., dissenting). Consequently,
defendant’s motion to dismiss will be granted, and the complaint will be dismissed
with prejudice, because amendment would be futile.
IV. CONCLUSION AND ORDER

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For all of the reasons stated above, defendant’s motion to dismiss is
GRANTED, and plaintiff’s complaint is DISMISSED with prejudice. Costs are taxed
to plaintiff. The Clerk is directed to close this file, and to mail a copy of this order to
plaintiff at 112 Fairington Road, Huntsville, Alabama, 35806.
DONE and ORDERED this 2nd day of January, 2013.

______________________________
United States District Judge

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