Al-Dahir v. Hamlen et al

Filing 39

MEMORANDUM AND ORDER granting 28 defendant FBI's Motion to Dismiss Complaint/Amended Complaint or in the Alternative, Motion for Summary Judgment. Signed by District Judge Carlos Murguia on 5/3/2011. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
OMAR A. AL-DAHIR,
Plaintiff,
v.
ROGER W. HAMLIN, FEDERAL
BUREAU OF INVESTIGATION, and
ERICSSON SERVICES, INC.,
Defendants.

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CIVIL ACTION
Case No. 10-2571-CM

MEMORANDUM AND ORDER
Plaintiff Omar A. Al-Dahir, proceeding pro se, brings this action against defendants Roger
W. Hamlin, Federal Bureau of Investigation (“FBI”) and Ericsson Services Inc. (“ESI”). The case
arises out of plaintiff’s termination from his employer, ESI, when a “federal agency” made
“inquiries” about him. In his currently-operative complaint, Plaintiff claims that defendant FBI
committed the torts of defamation and tortious interference with contract, and also violated the
Privacy Act.1 The case is before the court on defendant FBI’s Motion to Dismiss
Complaint/Amended Complaint or in the Alternative, Motion for Summary Judgment (Doc. 28).
I.

Factual Background
In September 2009, defendant ESI hired plaintiff to work in its Overland Park, Kansas office.

At the time, plaintiff was living in Louisiana, but plaintiff turned down other offers of employment
and accepted ESI’s offer. He signed a one-year lease agreement for a home in Kansas and moved
his family. He began work on October 12, 2009. But on November 13, 2009, plaintiff’s supervisor

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Plaintiff has moved to amend his complaint to add claims for civil conspiracy and
retaliation against the FBI, but the court has not yet allowed amendment.

informed plaintiff that “ESI or Sprint (not clear) was contacted by a federal agency and inquiries
were made.” (Doc. 1, at 3.) ESI terminated plaintiff’s employment, stating that the termination was
not performance-based. Plaintiff returned to Louisiana and has suffered emotional, financial, and
mental hardship. Plaintiff believes that several FBI agents—who plaintiff had previously named in a
Louisiana law suit—interfered with his employment at ESI to harass and intimidate him. He alleges
that ESI terminated him because the FBI told ESI that plaintiff was a security risk.
On October 20, 2010, plaintiff filed this action. On October 27, 2010, he filed a form SF-95
administrative claim with the FBI. On that form, he alleges that ESI terminated him because FBI
agents made “false and unsubstantiated statements” to ESI.
II.

Reviewing a Pro Se Complaint
Defendant FBI asks the court to dismiss the complaint for two reasons: (1) lack of subject

matter jurisdiction under Rule 12(b)(1); and (2) failure to state a claim under Rule 12(b)(6).
Under both 12(b)(1) and 12(b)(6), the court bears in mind plaintiff’s pro se status. Because
of plaintiff’s pro se status, the court affords him some leniency in construing his complaint. Asselin
v. Shawnee Mission Med. Ctr., Inc., 894 F. Supp. 1479, 1484 (D. Kan. 1995) (citation omitted). The
court may not, however, assume the role of advocate for plaintiff simply because he is proceeding
pro se. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). The court should not “construct
arguments or theories for the plaintiff in the absence of any discussion of those issues.” Drake v.
City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (citations omitted). Nor should the court
“supply additional factual allegations to round out a plaintiff’s complaint or construct a legal theory
on a plaintiff’s behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173–74 (10th Cir. 1997) (citation
omitted).

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III.

Discussion

A.

Subject Matter Jurisdiction - Tort Claims
Defendant FBI asks the court to dismiss the tort claims against it for lack of subject matter

jurisdiction under Fed. R. Civ. P. 12(b)(1). Specifically, defendant FBI contends that it is not the
proper defendant, and that the only proper defendant–the United States–is immune from suit.
Defendant FBI also alleges that plaintiff has not exhausted his administrative remedies.
The existence of subject matter jurisdiction is a threshold issue. See Laughlin v. Kmart
Corp., 50 F.3d 871, 873 (10th Cir. 1995). Unless the United States waives sovereign immunity, this
court does not have subject matter jurisdiction over suits against the United States. Harrell v.
United States, 443 F.3d 1231, 1234 (10th Cir. 2006). But here, plaintiff has not sued the United
States. Instead, he named the FBI—a federal agency. A federal agency like the FBI cannot be sued
under the Federal Tort Claims Act (the “FTCA”), which offers a limited waiver of sovereign
immunity for the federal government. See 28 U.S.C. § 2679(a); F.D.I.C. v. Craft, 157 F.3d 697, 706
(9th Cir. 1998) (“The FTCA is the exclusive remedy for tortious conduct by the United States, and it
only allows claims against the United States. Although such claims can arise from the acts or
omissions of United States agencies (28 U.S.C. § 2671), an agency itself cannot be sued under the
FTCA.”); Denney v. U.S. Postal Serv., 916 F. Supp. 1081, 1083 (D. Kan. 1996).
Although the FBI is not the proper defendant, plaintiff’s error is of little consequence here.
Even if the court were to allow him to substitute the United States as the proper defendant, the
claims would still be dismissed.
The FTCA waives sovereign immunity “under circumstances where the United States, if a
private person, would be liable to the claimant in accordance with the law of the place where the act
or omission occurred.” 28 U.S.C. § 1346(b). It does not, however, waive sovereign immunity for
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defamation claims and tortious interference with contract claims. See 28 U.S.C. § 2680(h)
(excluding claims for libel, slander, and tortious interference with contract); Jimenez-Nieves v.
United States, 682 F.2d 1, 6 (1st Cir. 1982) (noting that defamation is the equivalent of libel and
slander). The United States is immune from suit for these claims.
But even if the FTCA applied, plaintiff would still not be allowed to proceed. Under the
FTCA, a tort claim against the United States must be “presented to the appropriate Federal agency
within two years after such claim accrues.” 28 U.S.C. § 2401(b). Then, plaintiff’s lawsuit must be
filed in an appropriate district court within six months after the date the agency mails notice of the
final denial of the plaintiff’s claim. See 28 U.S.C. § 2401(b); Franklin Sav. Corp. v. United States,
385 F.3d 1279, 1286 (10th Cir. 2004). Failure to comply with these provisions renders the claim
“forever barred.” 28 U.S.C. § 2401(b). The statute of limitations provision of the FTCA constitutes
a waiver of the government’s sovereign immunity, is jurisdictional, and cannot be waived. Boehme
v. U.S. Postal Serv., 343 F.3d 1260, 1262 (10th Cir. 2003); Gualtier v. United States, No. 93-3366,
1994 WL 247034, at *2 (10th Cir. June 8, 1994) (citing Bradley v. United States, 951 F.2d 268, 270
(10th Cir. 1991)). This court is mindful not to “‘extend the waiver beyond that which Congress
intended.’” Gualtier, 1994 WL 247034, at *2 (quoting Bradley v. United States ex rel. Veterans
Admin., 951 F.2d 268, 270 (10th Cir. 1991) (additional citation omitted)).
Plaintiff fails to allege that he has complied with the FTCA’s exhaustion requirements. The
Form SF-95 filed on this claim was filed after plaintiff filed the instant lawsuit.
In response to defendant FBI’s motion to dismiss, plaintiff presents a copy of another Form
SF-95. He completed the second form on November 2, 2010 and listed his place of residence and
the location of the incident as 935 Papworth Ave., Metairie, LA. This form also does not show that
plaintiff exhausted his administrative remedies before filing suit, for two reasons: First, like the other
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form, he completed the form after filing suit on October 20, 2010. Second, the form appears to refer
to an incident separate from the one at issue in this case, which occurred in October or November
2009, when plaintiff was living in Overland Park, Kansas. This form does not demonstrate
exhaustion of remedies.
Because plaintiff has failed to comply with the FTCA’s exhaustion requirements, his
defamation and tortious interference claims must be dismissed.
B.

Failure to State a Claim - Privacy Act Claim
Defendant FBI moves to dismiss plaintiff’s Privacy Act claim under Fed. R. Civ. P. 12(b)(6).

The court will grant a Rule 12(b)(6) motion to dismiss only when the factual allegations fail to “state
a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
While the factual allegations need not be detailed, the claims must set forth entitlement to relief
“through more than labels, conclusions, and a formulaic recitation of the elements of a cause of
action.” In re Motor Fuel Temperature Sales Practices Litig., 534 F. Supp. 2d 1214, 1216 (D. Kan.
2008). The allegations must contain facts sufficient to state a claim that is plausible, rather than
merely conceivable. Id. “[W]here the well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the
pleader is entitled to relief.’” Ashcroft v. Iqbal, – U.S. –, 129 S. Ct. 1937, 1949 (2009) (quoting Fed.
R. Civ. P. 8(a)(2)).
“All well-pleaded facts, as distinguished from conclusory allegations, must be taken as true.”
Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir. 1984). The court construes any reasonable
inferences from these facts in favor of plaintiff. Tal v. Hogan, 453 F.3d 1244, 1252 (10th Cir. 2006).
The issue in reviewing the sufficiency of a complaint is not whether plaintiff will prevail, but
whether plaintiff is entitled to offer evidence to support his claims. Scheuer v. Rhodes, 416 U.S.
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232, 236 (1974), overruled on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982). When
evaluating a Rule 12(b)(6) motion, the court may consider not only the contents of the complaint,
but also the contents of any attached exhibits. Hall, 935 F.2d at 1112.
If a government agency refuses to comply the Privacy Act, adversely affecting an individual,
“the individual may bring a civil action against the agency.” 5 U.S.C. § 552a(g)(1). But the FBI is
not an “agency” under the Act. See 5 U.S.C. §§ 552(f)(1); Judicial Watch, Inc. v. F.B.I., 190 F.
Supp. 2d 29, 31 n.1 (D.D.C. 2002). Again, though, the court will proceed to consider the merits of
the claim, as even if plaintiff were to substitute to correct defendant, the substitution would be futile.
The Privacy Act prohibits agencies from disclosing “any record which is contained in a
system of records by any means of communication to any person, or to another agency, except
pursuant to a written request by, or with the prior written consent of, the individual to whom the
record pertains.” 5 U.S.C. § 552a(g)(1)(D). To prevail on a Privacy Act claim, a plaintiff must
show: “(1) the information is a record within a system of records, (2) the agency disclosed the
information, (3) the disclosure adversely affected the plaintiff, and (4) the disclosure was willful or
intentional.” Wilkerson v. Shinseki, 606 F.3d 1256, 1269 (10th Cir. 2010).
Plaintiff’s complaint fails to allege facts that would establish that the FBI disclosed a
“record” within a “system of records.” Roberts v. U.S. Dep’t of Justice, 366 F. Supp. 2d 13, 25
(D.D.C. 2005). Plaintiff’s only allegations about the FBI’s disclosures are that the FBI “made
inquiries,” told ESI that plaintiff was a security risk, and “communicat[ed] information from records
about Plaintiff . . . to ESI without written authorization from Plaintiff with the intent that said
communications would cause harm to Plaintiff.” (Doc. 1, at 4.) These are insufficient allegations to
survive a motion to dismiss. They are general and vague, and constitute conclusory allegations. As
mere conclusory allegations, they are not entitled to a presumption of truthfulness. See Swanson,
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750 F.2d at 813 (“All well-pleaded facts, as distinguished from conclusory allegations, must be
taken as true.”).
For all of the above-stated reasons, the court determines that defendant FBI is entitled to
dismissal of the case against it.
IT IS THEREFORE ORDERED that defendant FBI’s Motion to Dismiss
Complaint/Amended Complaint or in the Alternative, Motion for Summary Judgment (Doc. 28) is
granted.
Dated this 3rd day of May 2011, at Kansas City, Kansas.
s/ Carlos Murguia
CARLOS MURGUIA
United States District Judge

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