Davis v. FBI et al

Filing 5

MEMORANDUM. Signed by Judge Gregory M. Sleet on 12/27/13. (mdb)

IN THE UNITED STATES DISTRlCT COURT

FOR THE DISTRlCT OF DELAWARE

TIMOTHY L. DAVIS,

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) Civ. Action No. 13-1657-GMS
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Plaintiff,
v.
FBI, et aI.,
Defendants.

MEMORANDUM
The plaintiff, Timothy L. Davis ("Davis"), filed this lawsuit on October 7,2013, alleging
discrimination related to race, color, and religion and asserting jurisdiction by reason of diversity
of citizenship. 1 (D.1. 2.) He appears pro se and was granted permission to proceed inJorma

pauperis pursuant to 28 U.S.C. § 1915. (D.1. 4.) The court proceeds to review and screen the
complaint pursuant to 28 U. S. C. § 1915.

I. BACKGROUND
Davis alleges that in the last quarter of2009, he provided written detailed information
and a micro-cassette tape to FBI agents in Kalamazoo, Michigan regarding "Smiley Face Killer"
victims. 2 Davis alleges that persons he identified as Amish were arrested and charged with the
crimes he described. Davis alleges that he petitioned the FBI for the reward money, but the FBI

1The court is unable to discern if the parties have diversity of citizenship. It appears that
some of the defendants are located in Wilmington, Delaware.
2A theory advanced by two retired New York City detectives that a number of young men
found dead in bodies of water across several states over the last decade did not accidentally
drown, as concluded by law enforcement agencies, but were victims of a serial killer or killers.
Graffiti depicting a smiley face was discovered near locations where the detectives believe the
killer dumped the bodies in at least a dozen of the cases. See http://en.wikipedia.orglwiki/
SmileyJace_murder_theory.

claimed that the victims were not "Smiley Face" victims, and Davis never received a response to
his petition. 3 Davis asked for the return of his information via FOIA (i.e., the Freedom of
Information Act), but he only received thirteen pages of written information found at pages five
through eighteen of the complaint. Davis alleges that he was denied information pursuant to

§ 552(b)(6) and (7).
Davis seeks damages for one emotional distress, physical harm, and property loss, as well
as a declaratory judgment on invasion of privacy.

II. STANDARD OF REVIEW
This court must dismiss, at the earliest practicable time, certain in forma pauperis and
actions that are frivolous, malicious, fail to state a claim, or seek monetary relief from a
defendant who is immune from such relief. See 28 U .S.C. § 1915( e)(2) (in forma pauperis
actions). The court must accept all factual allegations in a complaint as true and take them in the
light most favorable to apro se plaintiff. Phillips v. County ofAllegheny, 515 F.3d 224, 229 (3d
Cir. 2008); Erickson v. Pardus, 551 U.S. 89, 93 (2007). Because Davis proceeds pro se, 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.
at 94 (citations omitted).

3The court takes judicial notice that on April 29, 2008, the FBI released the following
press statement: "Over the past several years, law enforcement and the FBI have received
information about young, college-aged men who were found deceased in rivers in the Midwest.
The FBI has reviewed the information about the victims provided by two retired police
detectives, who have dubbed these incidents the "Smiley Face Murders," and interviewed an
individual who provided information to the detectives. To date, we have not developed any
evidence to support links between these tragic deaths or any evidence substantiating the theory
that these deaths are the work of a serial killer or killers. See hUp:llwww.fbi.gov/news/pressrel/
press-releases/fbi-statement-regarding-midwest-river-deaths.

2

An action is frivolous if it "lacks an arguable basis either in law or in fact." Neitzke v.

Williams, 490 U.S. 319, 325 (1989). Under 28 U.S.C. § 1915(e)(2)(B)(i), a court may dismiss a
complaint as frivolous if it is "based on an indisputably meritless legal theory" or a "clearly
baseless" or "fantastic or delusional" factual scenario. Neitzke, 490 at 327-28; Wilson v.

Rackmill, 878 F.2d 772, 774 (3d Cir. 1989); see, e.g., Deutsch v. United States, 67 F.3d 1080,
1091-92 (3d Cir. 1995) (holding frivolous a suit alleging that prison officials took an inmate's
pen and refused to give it back).
The legal standard for dismissing a complaint for failure to state a claim pursuant to
§ 1915(e)(2)(B)(ii) is identical to the legal standard used when ruling on 12(b)(6) motions.

Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999) (applying Fed. R. Civ. P. 12(b)(6)
standard to dismissal for failure to state a claim under § 1915(e)(2)(B)). However, before
dismissing a complaint or claims for failure to state a claim upon which relief may be granted
pursuant to the screening provisions of 28 U. S. C. § 1915, the court must grant Davis leave to
amend his complaint unless amendment would be inequitable or futile. See Grayson v. Mayview

State Hosp., 293 F.3d 103, 114 (3d Cir. 2002).
A well-pleaded complaint must contain more than mere labels and conclusions. See

Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). The
assumption of truth is inapplicable to legal conclusions or to "[tJhreadbare recitals of the
elements of a cause of action supported by mere conclusory statements." Id. at 678. When
detennining whether dismissal is appropriate, the court conducts a two-part analysis. Fowler v.

UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). First, the factual and legal elements ofa
claim are separated. Id. The court must accept all of the complaint's well-pleaded facts as true,

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but may disregard any legal conclusions. Id. at 210-11. Second, the court must determine
whether the facts alleged in the complaint are sufficient to show that Davis has a "plausible claim
for relief.,,4 Id. at 211. In other words, the complaint must do more than allege Davis'
entitlement to relief; rather it must "show" such an entitlement with its facts. Id. "[W]here the
well-pleaded facts do not permit the court to infer more than a mere possibility of misconduct,
the complaint has alleged - but it has not shown - that the pleader is entitled to relief." Iqbal, 556
U.S. at 678 (quoting Fed. R. Civ. P. 8(a)(2)).

III. DISCUSSION
Initially, the court notes that Davis does not indicate under which statutes or theories of
law he proceeds. However, it appears that Davis raises two claims in his complaint: (1) a
discrimination claim after the FBI failed to pay a reward for information following Davis'
request for the reward; and (2) a FOIA for failure to provide complete information.
With regard to the discrimination claim and failure to pay the reward, the Court finds
even liberally construed that this claim is legally frivolous and lacks factual basis. Denton v.
Hernandez, 504 U.S. 25, 32 (1982); see also Mohammed v. Wilson, 1996 WL 570501 (N.D. Cal.

1996). While Davis requested a reward, as is evidenced by the press release attached to the
complaint, the FBI did not consider the Smiley Face Murder theory a viable one. In addition, to
the extent the claim can be considered a Bivens claim, that is, an action which lies against federal

4A claim is facially plausible when its factual content allows the court to draw a
reasonable inference that the defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at
678 (quoting Twombly, 550 U.S. at 570). The plausibility standard "asks for more than a sheer
possibility that a defendant has acted unlawfully." Id. "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.
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officials who have violated the plaintiff s rights under color of federal law, Bivens v. Six
Unknown Named Agents ofFederal Bureau ofNarcotics, 403

u.s. 388 (1971), it is clear from

the face of the complaint that the claim is barred by the applicable two-year statute of
limitations. 5 Davis sought recovery of the reward the last quarter of 2009, but did not file the
instant complaint until October 7, 2013. "[W]here the statute of limitations defense is obvious
from the face of the complaint and no development of the factual record is required to determine
whether dismissal is appropriate, sua sponte dismissal under 28 U.S.C. § 1915 is permissible."
Smith v. Delaware Cnty. Court, 260

App'x 454 (3d Cir. 2008) (unpublished). In addition, a

Bivens action cannot be maintained against a federal agency. :F'ederal Deposit Ins. Corp. v.
Meyer, 510 U.S. 471, 485 (1994). Accordingly, the court will dismiss the discrimination claim
as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
With regard to the FOIA claim, it appears that Davis sought information known to him
since he had previously provided the information to the FBI. The court is unable to discern
whether Davis exhausted his administrative remedies prior to filing suit. "[T]he FOIA requires
exhaustion of the administrative appeals process before an individual may seek relief in the
district court." McDonnell v. United Stales, 4 F.3d 1227, 1240 (3d Cir. 1993) (citing Oglesby v.
Department ofArmy, 920 F.2d 57 (D.C. Cir. 1990)). A plaintiff exhausts administrative
remedies when he appeals an agency's response to his FOIA request, and the agency fails to

5The statute of limitations for a Bivens claim is taken from the forum state's personal
injury statute. Kost v. Kozakiewicz, 1 F.3d 176, 190 (3d Cir. 1993); see also Napier v. Thirty or
More Unidentified Fed Agents, Employees or Officers, 855 F.2d 1080, 1087 n.3 (3d Cir. 1988)
(noting that the same statute of limitations applies to both Bivens and § 1983 claims). The
relevant state statute oflimitations jor a personal injury action in Delaware is two years. See 10
Del. C. § 8119.

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respond to the appeal within the appropriate time limit, denies the appeal, or makes an adverse
determination. 5 U.S.C. § 552(a)(6)(A)(i)-(ii); See Hidalgo v. Federal Bureau ofInvestigation,
344 F.3d 1256, 1259 (D.C. Cir. 2003). When a plaintiff has not exhausted administrative
remedies, the court can dismiss the complaint sua sponte for failure to state a claim. Isasi v.

Office ofAttorney Gen., 594 F. Supp. 2d 12, 13 (D.D.C. 2009). Finally, the burden is on the
plaintiff to prove exhaustion of administrative remedies. See Brown v. Federal Bureau of

Investigation, 793 F. Supp. 2d 368,380 (D.D.C. 2011).
It does not appear that Davis exhausted his administrative remedies. Therefore, the court

will dismiss the claim for failure to state a claim upon which relief may be granted pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii). Davis, however, will be given leave to amend the claim.

IV. CONCLUSION
For the above reasons, the court will dismiss the complaint as frivolous and for failure to
state a claim upon which relief may be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i) and (ii).
Plaintiff will be given leave to amend only as to the FOIA claim.
An appropriate order will be entered.

~ ']...7

,2013
Wilmington, Delaware

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