Harik v. Venizelos et al

Filing 7

MEMORANDUM ORDER granting 3 MOTION to Dismiss for Lack of Jurisdiction Over the Subject Matter . ORDER DISMISSING CASE (copy to pltf.) (CASE CLOSED). Signed by Judge Sue L. Robinson on 5/23/2013. (nmfn)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

MICHAEL VASYL HARIK,

Plaintiff,

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) Civ. No. 12-845-SLR

v.

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GEORGE VENIZELOS, et al.,
Defendants.

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MEMORANDUM ORDER

At Wilmington this May of May, 2013, having reviewed the motion to dismiss
filed by defendants and the papers submitted therewith;
IT IS ORDERED that said motion to dismiss (D. I. 3) is granted, as follows:
1. Background.

Plaintiff Michael Vasyl Harik, proceeding pro se, claims that

Federal Bureau of Investigation ("FBI") employees 1 violated his Fourth Amendment
rights through an unwarranted invasion of privacy. (D.I. 1 at 1) Specifically, plaintiff
states that the FBI used "GPS and other monitoring means without a showing of
probable cause," which violated his expectation of privacy from unlawful searches. (/d.)
1

Piaintiff names the following as defendants: George Venizelos, FBI Special
Investigations Unit, Head/Deputy of FBI Human Resources, FBI Investigation Units for
Minors, FBI Unit for East European Cases, FBI Electronic Surveillance Unit, FBI
External Surveillance Unit, FBI Transmission Center, Dispatching Office, FBI Unit for
the Most Wanted Criminals, Special Agents in Charge of the listed FBI units in
Philadelphia, and Venizelos, Jr. Defendants assert that the named FBI entities do not
exist but that the complaint seems to be directed at employees in the FBI's Philadelphia
office. (D.I. 4 at 5)

Prior to 2010, plaintiff claims that defendants caused his son to be "bullied and
harassed through children of FBI associates since 2007 in Middle School." (/d. at 2)
Plaintiff then alleges that defendants harassed him since August 1, 2011 and his son
since March 2010 through July 2012 through GPS monitoring and radio wave
transmissions that altered their thoughts and decisions. (/d. at 2-5) He claims that this
monitoring occurred "on per second or sub-minute intervals (including the time of using
bathroom and toilet)" and included "microparticles/clusters functionally akin to a hearing
aid and obstructing, perturbing and interfering with ... my thoughts and my decision
making even about small and insignificant things." (/d. at 2, 3) Additionally, plaintiff
states that defendants defaced his vehicle and entered into the vehicle to spray "various
highly irritant aerosols and skin damaging droplets ... and microscopic
electromagnetically conductive microparticles (with the glass-like shine in the sunlight)."
(!d. at 2, 5-6)

2. Plaintiff attributes a wide variety of symptoms to the FBI's monitoring and
radio transmissions, including "persistent difficulty falling asleep, as having insomnia
and waking up in the morning with 'bags' under my eyes," "memory problems indicative
of some brain damage" evidenced in plaintiff's inability to "recall the name of George
Orwell, the author of a novel '1984,"' and the fact that his "son could not recall many
details about his school days." (/d. at 4) Plaintiff bemoans the fact that he looks "like a
man in his mid-50s, while two years ago, [he] looked like a man in his late 30s," which
he attributes to the FBI's "prolonged abuses." (!d. at 3) Plaintiff also claims that as a
result of the "highly irritant aerosols of acidic microparticles," he experienced "dry cough,
airways and eyes irritation," had to ("after a clear sense of breathing fine airborne

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microparticulates") "open windows and move my car," and experienced "albino-like
patches of abnormally white skin" similar to the effects of exposure to "the phenolic type
and other chemical compounds." (!d. at 5) Furthermore, plaintiff contends the FBI
defaced his car "in a particularly degrading manner by an unusual amount (in terms of
area concentration) of the bird-like extremity soiling." (/d.) Plaintiff also asserts that a
scratch "was made far enough from the edges of my car indicating that this defacing
was done by an adult (most likely by a police informant) and not a child." (/d.)
3. Plaintiff had previously filed court complaints of discrimination in July 2005
and July 2007. (/d. at 2) He asserts that the harassment of his son and of him is a
retaliatory response to those court proceedings and is discriminatory. (/d. at 3, 7)
Furthermore, plaintiff asserts that during a 2011 domestic court hearing in
Pennsylvania, the FBI aided in the falsification of court documents that resulted in a
state court petition for contempt against him. (/d. at 6)
4. Plaintiff first seeks an injunction of GPS and microparticle monitoring against
the FBI. (/d. at 7) Additionally, plaintiff seeks monetary damages for the following
causes: pain and suffering of plaintiff's son 2 in an unspecified amount; compensation
for plaintiff's losses of earning power and professional standing from defendants'
electronic investigations and from defendants labeling him a criminal for the period from
August 1, 2011 to July 2012 in an unspecified amount; plaintiff's pain and suffering
from August 1, 2011 to July 2012 in an unspecified amount; loss of plaintiff's car's

2

Piaintiff's son is not listed as a party to the action.

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value in the amount of $3,000; and the cost of plaintiff's legal support and attorney fees
for pending cases. 3 (!d. at 8)
5. Currently before the court is defendants' motion to dismiss pursuant to
Federal Rules of Civil Procedure 12(b)(1 ), 12(b)(2), and 12(b)(6). (0.1. 3) As the Rule
12(b)(1) grounds for dismissal are dispositive, the court does not address the Rule
12(b)(2) or 12(b)(6) grounds.
6. Standard of Review. Not only may the lack of subject matter jurisdiction be
raised at any time, it cannot be waived and the court is obliged to address the issue on
its own motion. See Moodie v. Fed. Reserve Bank of NY, 58 F.3d 879, 882 (2d Cir.
1995). Once jurisdiction is challenged, the party asserting subject matter jurisdiction
has the burden of proving its existence. See Carpet Group lnt'l v. Oriental Rug

Importers Ass'n, Inc., 227 F.3d 62, 69 (3d Cir. 2000). Because plaintiff proceeds prose,
his pleading is liberally construed and his complaint, "however inartfully pleaded, must
be held to less stringent standards than formal pleadings drafted by lawyers." Erickson

v. Pardus, 551 U.S. 89, 94 (2007) (citations omitted).
7. Under Rule 12(b)(1 ), the court's jurisdiction may be challenged either facially
(based on the legal sufficiency of the claim) or factually (based on the sufficiency of
jurisdictional fact). See 2 James W. Moore, Moore's Federal Practice§ 12.30[4] (3d ed.

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Piaintiff's response to the motion to dismiss attempts to adds allegations of "an
unlawful parking ticket involving the ethnic- and religion-based discrimination of Plaintiff,
which was assisted by the GPS tracking" and a "long list of incidents of the internet use
obstruction in Delaware from the federal backbone communication system under FBI's
orders," including "obstructions ... directed to the facebook audience," "denigrating
followers with either the sex context or pornographic content attaching to my Twitter,"
and "abnormal delays during the virus scan" that "demonstrate that [plaintiff's] computer
files have been tempered [sic] with .... " (0.1. 6 at 8; see also id., ex. 11)

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1997). Under a facial challenge to jurisdiction, the court must accept as true the
allegations contained in the complaint. See id. Dismissal for a facial challenge to
jurisdiction is "proper only when the claim 'clearly appears to be immaterial and made
solely for the purpose of obtaining jurisdiction or ... is wholly insubstantial and
frivolous."' Kehr Packages, Inc. v. Fide/cor, Inc., 926 F.2d 1406, 1408-09 (3d Cir. 1991)
(quoting Bell v. Hood, 327 U.S. 678, 682 (1946)).
8. Discussion. Defendants aver that the allegations in plaintiff's complaint are
insubstantial and frivolous on their face. 4 (D. I. 4 at 3) "'Constitutional insubstantiality'
for this purpose has been equated with such concepts as 'essentially fictitious,' 'wholly
insubstantial,' 'obviously frivolous,' ... [and] 'obviously without merit."' Hagans v.
Lavine, 415 U.S. 528, 537 (1974) (citations omitted). A claim is insubstantial or

frivolous when there is "'no room for the inference that the questions sought to be raised
can be the subject of controversy."' /d. (quoting Hannis Distilling Co. v. Baltimore, 216
U.S. 70, 80 (1909)). Defendants contend that plaintiffs claims constitute '"bizarre
conspiracy theories"' or "'fantastic government manipulations of the will or mind ... "'
that meet the threshold "essentially fictitious" standard for a Rule 12(b)(1) dismissal.
(D. I. 4 at 3) (quoting Best v. Kelly, 39 F.3d 328, 330 (D.C. Cir. 1994)).
9. Here plaintiff presents a series of events that he believes the FBI
orchestrated. (D.I. 1) When viewed collectively, plaintiff's claims comprise a conspiracy
theory about the FBI and its activities. (/d.) Plaintiff alleges the FBI is behind everything
from his son's school bullying to bird excrement found on his car. (/d. at 2, 7) He
4

The defendants do not allege that the claims should be dismissed under Rule
12(b)(1) for being "immaterial and made solely for jurisdictional purposes." See Kehr
Packages, 926 F.2d at 1408 (citations omitted).

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further contends that the FBI had a hand in his court proceedings, implicating the clerk
who filed the petition for contempt against him. (/d. at 6) The Third Circuit has
previously found that claims of fantastic government conspiracies can be dismissed
under Rule 12(b)(1). See DeGrazia v. FBI, 316 F. App'x 172, 173 (3d Cir. 2009)
(dismissing a claim about the FBI conducting a Nazi-designed genetic experiment on
the plaintiff).
10. The thrust of this case mirrors that of the DeGrazia case, which included a
complaint with a 128-page supporting brief about the government's experimentation on
DeGrazia and on others. See DeGrazia v. FBI, 2008 WL 2456489 at *1-2 (D.N.J. 2008)
(detailing the wide variety of experimental effects on plaintiff and the deception of the
government by Nazi agents). As in DeGrazia, plaintiff's claims rest on his allegations of
discriminatory treatment. (0.1. 1 at 7) However, rather than allege that he received an
experimental injection at the hands of the government, plaintiff instead alleges that he
endured constant monitoring and mind control, with the occasional act of vandalism.
(/d. at 2)
11. In Best v. Kelly, prisoners in a correctional facility sued the mayor of the city
and the director of the city department of corrections for terminating a drug treatment
program and replacing it with a new contractor, in violation of their due process rights.
39 F.3d at 329. That court found that the prisoners' claims were "not clearly fanciful
claims ... [such] that dismissal for lack of jurisdiction under Rule 12(b)(1) [was]
warranted." /d. at 330-31. For claims to be dismissed pursuant to Rule 12(b)(1 ), they
must be "flimsier than 'doubtful or questionable'- they must be 'essentially fictitious."'
/d. at 330 (citations omitted). Although plaintiff supports his claims with documentation

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on GPS monitoring, transcranial magnetic stimulation technology, and phenol dyes or
burns exist, plaintiff's case is distinguishable from the facts of Best because, while the
claims in Best clearly fell away from the "essentially fictitious" standard, plaintiff's claims
that the FBI directed all of its technologies for the express purpose of harassing him are
clearly fanciful. 5 See id.
12. Conclusion. For the aforementioned reasons, the court finds that the
allegations in plaintiff's complaint '"are so attenuated and unsubstantial as to be
absolutely devoid of merit, ... wholly insubstantial, ... obviously frivolous, ... plainly
unsubstantial, ... or no longer open to discussion."' DeGrazia, 316 F. App'x at 173.

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Plaintiff's response to the motion to dismiss further bolsters the incredulity of his
complaint, as he attempts to attribute parking tickets, internet malfunctions, a potential
computer virus problem, and even pornographic content to the FBI. (0.1. 6 at 8)

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