Grady v. United States Government et al

Filing 34

OPINION AND ORDER granting 16 Motion to Dismiss for Failure to State a Claim; granting 16 Motion to Dismiss for Lack of Jurisdiction. Closing Case. Motions Terminated: 16 Defendant's MOTION TO DISMISS 1 Complaint FOR FAILURE TO STATE A CLAIM MOTION to Dismiss for Lack of Jurisdiction 1 Complaint filed by Department of Defense, Eric H. Holder, Jr., Department of Justice, Internal Revenue Service, United States Government, 25 MOTION for Tempo rary Restraining Order MOTION for Order to Show Cause filed by Patrick J. Grady. Signed by Judge Robin L. Rosenberg on 1/4/2017. (yha) NOTICE: If there are sealed documents in this case, they may be unsealed after 1 year or as directed by Court Order, unless they have been designated to be permanently sealed. See Local Rule 5.4 and Administrative Order 2014-69. Modified text on 1/4/2017 (yha).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 16-14293-ROSENBERG
PATRICK J. GRADY,
Plaintiff,
Vs.
UNITED STATES DEPARTMENT OF DEFENSE,
UNITED STATES DEPARTMENT OF JUSTICE,
INTERNAL REVENUE SERVICE, ERIC H.
HOLDER, JOHN F. LAUGEL,
Defendants,
______________________________________/
ORDER GRANTING GOVERNMENT DEFENDANTS’ MOTION TO DISMISS
This matter is before the Court on the Motion (DE 16) filed by the Defendants, U.S.
Department of Defense, Department of Justice, Internal Revenue Service, and Eric H. Holder (in
his official capacity), pursuant to Rules 12(b)(1) and (6), Federal Rules of Civil Procedure, to
dismiss the Complaint (DE 1) filed by Plaintiff, Patrick J. Grady in this action. For the reasons
provided below, the Motion is GRANTED and this case is DISMISSED.

INTRODUCTION
Plaintiff’s Complaint presents a long list of fanciful and vague allegations that the
government and a private citizen living in the apartment above him illegally surveilled and
harassed him. Among other things, Plaintiff alleges that the defendants installed cameras in his
rental apartment complex (Compl. at ¶ 48), implanted a microchip in his ear (Compl. at ¶ ¶ 56,
72), made loud noises to disturb him at the library (Compl. at ¶ 59), placed a surveillance device
on the roof of his apartment building (Compl. at ¶ 60), and used electromagnetic microwave
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energy that made him hear voices and other sounds (Compl. at ¶ ¶ 60, 61, 71). Plaintiff further
alleges that the defendants unlawfully “targeted [him] through a National Security Letter or
FISA Court Order.” Compl. at ¶ 75. Plaintiff claims that, as a result of the foregoing alleged
conduct, he has suffered broken bones, broken teeth, blurred vision, heart palpitations, breathing
problems, pulsing above his left ear, exhaustion, prostate cancer, back pain, hand cramps,
nightmares and flatulence. See Compl. at ¶¶ 47, 112.
Pursuant to 42 U.S.C. § 1983, Plaintiff complains that the defendants’ alleged conduct
violated his Fourth Amendment right to privacy (Count 1) and his Fourteenth Amendment right
to due process and equal protection (Count 2). Plaintiff further claims that defendants’ alleged
“electronic and electromagnetic surveillance” and their “gang-stalking” of him at the library,
theaters and restaurants violated the Foreign Intelligence Surveillance Act of 1978 and the
U.S.A. Patriot Act (Count 3). Finally, Plaintiff claims that the alleged surveillance and
harassment amounted to intentional infliction of emotional distress or the tort of outrage (Count
4). Plaintiff seeks damages and injunctive relief.
As explained below, the Court lacks subject matter jurisdiction over Plaintiff’s claims.
Moreover, Plaintiff’s Complaint fails to state a claim upon which relief can be granted.

I.

The Court lacks subject matter jurisdiction because Plaintiff’s Complaint is
patently insubstantial.
Federal courts are courts of limited jurisdiction and the plaintiff bears the burden of

establishing subject matter jurisdiction. See Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375,
114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). While complaints filed by pro se litigants are held to
less stringent standards than those applied to formal pleadings drafted by lawyers (see Haines v.
Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972)), even a pro se plaintiff bears
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the burden of establishing that the Court has subject matter jurisdiction. See Rosenboro v. Kim,
994 F.2d 13, 17 (D.C.Cir.1993)).
“[F]ederal courts are without power to entertain claims that are ‘so attenuated and
unsubstantial as to be absolutely devoid of merit.’” Hagans v. Lavine, 415 U.S. 528, 536–37, 94
S.Ct. 1372, 39 L.Ed.2d 577 (1974) (quoting Newburyport Water Co. v. Newburyport, 193 U.S.
561, 579, 24 S.Ct. 553, 48 L.Ed. 795 (1904)). No federal question jurisdiction exists “when the
complaint is patently insubstantial.” Best v. Kelly, 39 F.3d 328, 330 (D.C.Cir.1994) (internal
citations omitted); see also Neitzke v. Williams, 490 U.S. 319, 327 n. 6, 109 S.Ct. 1827, 104
L.Ed.2d 338 (1989). To be dismissed on this ground under Rule 12(b)(1) the claims must be
“flimsier than ‘doubtful or questionable’ they must be ‘essentially fictitious.’” Best, 39 F.3d at
330 (quoting Hagans, 415 U.S. at 536–37, 94 S.Ct. 1372). Claims that are essentially fictitious
include those that allege “bizarre conspiracy theories, any fantastic government manipulations of
their will or mind [or] any sort of supernatural intervention.” Id. at 330.
In this action, Plaintiff’s allegations of extreme forms of government surveillance and
harassment are of the sort of “bizarre conspiracy theory” that warrant dismissal under Rule
12(b)(1). Plaintiff’s allegations that the government implanted a device in his ear (Compl. at
¶ ¶ 56, 72), that it caused groups of people to disturb him by making noise at the library and the
theater (Compl. at ¶ 59), that it used “electromagnetic microwaves” to spy on him (Compl. at
¶ ¶ 60, 61, 71) and that it caused him to hear voices (Compl. at ¶ 60) are not merely doubtful or
questionable, but are entirely unbelievable. Plaintiff’s allegation that the government “target[ed]
[him] through a National Security Letter or FISA Court order” (Compl. at 75) is totally
unsupported by anything beyond his own bare suspicion. And Plaintiff’s assertions that the
alleged surveillance and harassment caused him to suffer injuries ranging from prostate cancer to

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broken bones to flatulence are so incredibly attenuated and baseless as to render his claims
totally devoid of merit. For these reasons, the Court lacks subject matter jurisdiction over
Plaintiff’s Complaint and dismisses it accordingly. See, e.g., Tooley v. Napolitano, 586 F.3d
1006 (D.C. Cir. 2009) (affirming district court’s dismissal of plaintiff’s Constitutional claims as
patently insubstantial where plaintiff alleged that, about a year and a half after he had used the
word “bomb” on a telephone call with an airline representative, the government wiretapped his
telephones and those of his family members, monitored his vehicle with a radio frequency
identification tag and placed an officer outside his home for several hours per day; observing that
the allegations were in the realm of claims flimsier than doubtful or questionable and were, thus,
essentially fictitious); Curran v. Holder, 626 F.Supp.2d 30 (D.C. Dist. 2009) (dismissing a pro
se plaintiff’s Fourth and Fifth Amendment and Privacy Act claims based on allegations of
ongoing and pervasive government surveillance and harassment because the claims were
conclusory and unsupported by factual detail, and so attenuated and insubstantial as to be devoid
of merit); Frank v. Bush, 2010 WL 1408405, *5 (D. Kan. Apr. 2, 2010) (dismissing as
insubstantial, implausible and frivolous a pro se plaintiff’s claim that federal government
defendants issued a National Security Letter to harm him in retaliation for his activism because
(1) plaintiff alleged no facts which would lend plausibility to his claim, (2) it would require
“wild speculation” to infer that the plaintiff’s alleged injuries were caused by the issuance of
NSLs, and (3) only the plaintiff’s “bare suspicion” supported his claims); Custis v. CIA, 118 F.
Supp.3d 252 (D.C. Dist. 2015) (dismissing as patently insubstantial and fictitious plaintiff’s
Constitutional and statutory claims based on the plaintiff’s belief that the government had
surgically implanted an electronic GPS into her skull); Moore v. Bush, 535 F. Supp.2d 46 (D.C.
Dist. 2008) (dismissing former government employee plaintiff’s claim that the NSA, the

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Department of Justice and others conspired to implant a microchip in his brain for the purpose of
controlling his brain data because the claim was so attenuated and insubstantial as to be totally
devoid of merit).

II.

Plaintiff Also Fails to State a Claim Upon Which Relief May Be Granted
Complaints that defy reality are not only subject to dismissal under Rule 12(b)(1) for lack

of subject matter jurisdiction, they are also subject to dismissal under Rule 12(b)(6) for failure to
state a claim upon which relief can be granted. Courts ruling on motions to dismiss under Rule
12(b)(6) read the rule together with Rule 8(a)(2), which requires that a pleading contain only a
“short and plain statement of the claim showing that the pleader is entitled to relief.” While the
pleading standard set forth in Rule 8(a) does not require “detailed factual allegations,” Bell
Atlantic Corp. v. Twombly, 544 U.S. 544, 550 (2007), it does demand “more than an unadorned,
the-defendant-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 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).

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The Supreme Court’s ruling in Iqbal permits dismissal under Rule 12(b)(6) when a
complaint defies reality as we know it. As Justice Souter observed, the exception to the rule that
courts must accept the allegations in a plaintiff's complaint as true “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).1
See, e.g., Gobin v. Holder, 2013 WL 24086 (N.D. Ala. Jan. 2, 2013); Williams v. Karf, No.
CV410–221, 2010 WL 5624650, at *1 (S .D.Ga. Dec. 20, 2010), report and recommendation
adopted by, No. CV410–221, 2011 WL 201770 (S.D.Ga. Jan. 19, 2011).
As discussed above, Plaintiff’s allegations in this action fall into the category of those
defying reality as we know it. Plaintiff’s allegations that the government implanted a device in
his ear (Compl. at ¶ ¶ 56, 72), that it has harassed him by causing groups of people to disturb him
by making noise at the library or coughing at the theater (Compl. at ¶ 59), and that it has used
“electromagnetic microwaves” that caused him to hear “vocal sounds including profanity”
(Compl. at ¶ ¶ 60, 61, 71) do not satisfy the plausibility requirement set forth in Iqbal, and,
therefore, fail to state a claim upon which relief may be granted.

1
 Although this observation comes from Justice Souter’s dissenting opinion in Iqbal,

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. 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).

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III.

The Court lacks subject matter jurisdiction over Plaintiff’s constitutional claims
because the government Defendants are immune to such claims.

Plaintiff purports to bring claims under 42 U.S.C. § 1983 against the Department of Defense,
the Department of Justice, the Internal Revenue Service and Eric Holder in his capacity as
former Attorney General of the United States, for alleged violations of Plaintiff’s rights under the
Fourth and Fourteenth Amendments to the United States Constitution. Federal agencies and
federal officials acting in their official capacity, however, are immune to such claims.
Claims against federal agencies and claims against individual defendants sued in their official
capacities are treated as if they were brought against the federal government itself. See F.D.I.C.
v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994) (regarding claims against an
agency); Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985)
(explaining that an official-capacity lawsuit is in effect a suit against the sovereign)). Absent a
waiver, sovereign immunity shields the Federal Government from suit. See F.D.I.C. v. Meyer,
510 U.S. at 475.
The United States has not waived sovereign immunity for claims for money damages
sounding in constitutional tort. See id., 510 U.S. at 478. Therefore, each of the government
agency defendants and Mr. Holder, in his official capacity, are immune to Plaintiff’s claims for
damages based on the Fourth and Fourteenth Amendments (Counts 1 and 2, respectively). These
purported claims are, therefore, dismissed under Rule 12(b)(1), Federal Rules of Civil
Procedure.

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IV.

The Court lacks jurisdiction over Plaintiff’s tort Claim for emotional distress
because Plaintiff has failed to exhaust his administrative remedies.
Plaintiff’s tort claim for intentional infliction of emotional distress (Count 4) is governed

by the Federal Tort Claims Act. See Caldwell v. Klinker, 646 Fed. Appx. 842, 846 (11th Cir.
Mar. 30, 2016) (explaining that where, as here, a plaintiff’s suit presents state-law tort law claims
against a federal agency, it is properly construed as an FTCA claim against the United States -even if it is labeled otherwise). As such, Plaintiff was required to comply with the FTCA's
requirements before filing suit in federal court. One such requirement is the claimant’s
exhaustion of administrative remedies before the agency whose conduct gave rise to his claim.
See Caldwell, 646 Fed. Appx at 846 (citing McNeil v. United States, 508 U.S. 106, 113, 113
S.Ct. 1980, 1984, 124 L.Ed.2d 21 (1993).
“The FTCA bars claimants from bringing suit in federal court until they have exhausted
their administrative remedies.” McNeil, 508 U.S. at 113. Even pro se litigants must comply with
the exhaustion requirement. Caldwell, 646 Fed. Appx. at 846. Unless and until a claimant has
exhausted his administrative remedies under the FTCA, the district court lacks subject-matter
jurisdiction. Turner ex rel. Turner v. United States, 514 F.3d 1194, 1200 (11th Cir.2008).
Despite Plaintiff’s allegation that he “has exhausted all administrative efforts to try and
stop the illegal and unwarranted surveillance against him,” none of the agencies Plaintiff is suing
has any record of receiving an administrative claim from Plaintiff.2 As such, Plaintiff’s tort
claim for infliction of emotional distress is dismissed because the Court lacks subject matter
jurisdiction to hear it.

2

 The government Defendants attached to their Motion to Dismiss declarations from the Internal

Revenue Service, the U.S. Army Claims Service, the U.S. Navy, Claims and Tort Litigation
Division, the U.S. Air Force, Claims and Tort Litigation Division and the Federal Bureau of
Investigation regarding the lack of administrative claims. 
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V.

The Court Also Lacks Jurisdiction over Plaintiff’s Claim Under the Foreign
Intelligence Surveillance Act and the Patriot Act.
Although Plaintiff does not specifically identify the provision(s) of the Foreign Service

Intelligence Act (FISA) or the USA Patriot Act he claims were violated, Plaintiff, in conclusory
fashion, alleges that the government Defendants violated the statutes by surveilling him
electronically without a warrant and issuing a National Security Letter against him. See Compl.
at ¶¶ 99, 100. While FISA does contain a waiver of sovereign immunity that allows a person who
is aggrieved by a willful violation of certain FISA provisions to sue the United States for money
damages, it provides specific procedures with which the aggrieved person must comply. See 18
U.S.C. § 2712. An aggrieved person may commence an action in district court “only after a
claim is presented to the appropriate department or agency under the procedures of the Federal
Tort Claims Act, as set forth in title 28, United States Code.” Id. Plaintiff does not specify
which of the agencies he is suing allegedly violated FISA. Nevertheless, none of the agencies
received a claim from Plaintiff related to the alleged conduct at issue in this lawsuit. Therefore,
just as the Court lacks jurisdiction over Plaintiff’s tort claim for intentional infliction of
emotional distress, it also lacks jurisdiction over Plaintiff’s vague claim under FISA.
As for Plaintiff’s claim that the government defendants violated the Patriot Act, Plaintiff
does not explain how he may bring a private action to enforce it. “[C]ourts that have considered
the question have concluded that the Patriot Act does not provide for a private right of action for
its enforcement. Ray v. First Nat’l Bank of Omaha, 413 Fed. Appx. 427, 430 (3d Cir. 2011)
(citing Hanninen v. Fedoravitch, 583 F.Supp.2d 322, 326 (D.Conn.2008); Med. Supply Chain,
Inc. v. Neoforma, Inc., 419 F.Supp.2d 1316, 1330 (D.Kan.2006)); see also Ibn-Duriya v. Curry,
2007 WL 1191715, *2 (W.D. Ky. Apr. 18, 2007) (dismissing claim based on the Patriot Act
because “[n]o private cause of action exists to enforce the USA PATRIOT Act”). As such,
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Plaintiff’s Complaint does not state a claim under the Patriot Act on which relief may be
granted. See id.
As indicated above, it is hereby ORDERED that Plaintiff’s Complaint is DISMISSED for
lack of subject matter jurisdiction and/or for failing to state a claim upon which relief may be
granted. This Case shall be marked CLOSED and any pending motions DENIED AS MOOT.
DONE and ORDERED in Chambers, Fort Pierce, Florida, this 4th day of January, 2017.

__________________________________
ROBIN L. ROSENBERG
UNITED STATES DISTRICT JUDGE

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