Tew v. Yahoo, Inc. et al
MEMORANDUM OPINION signed by Judge John G. Heyburn, II on 4/18/2011. For the reasons set forth, the Court will enter a separate Order dismissing this action for lack of subject-matter jurisdiction. cc: Plaintiff, pro se (AEP)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
CIVIL ACTION NO. 3:11CV-200-H
BRYAN KEITH TEW
YAHOO, INC. et al.
Unrepresented by counsel, Plaintiff Bryan Keith Tew, who resides in Louisville,
Kentucky, filed a complaint in this Court against approximately forty Defendants, consisting of
various public entities, private companies, and one individual, from around the country,
including California, Florida, Kentucky, Louisiana, Minnesota, Missouri, Ohio, and Tennessee.
He paid the filing fee for this action. Upon review of the complaint, the Court will dismiss the
action for lack of subject-matter jurisdiction.
Plaintiff claims that since September 1, 2006, “Defendants engaged in a Civil Conspiracy
to harm me mentally and physically through Threats of Violence, Aggravated Stalking,
Menacing, Intentional Infliction of Mental Anguish and Emotional Duress resulting in numerous
nervous breakdowns and hospitalizations and even to deny me access to proper medical care.”
The FBI has used some type of electronic machine radiating device, to the present
date of this letter, and has inflicted severe pain and suffering, agonizing pain
headaches nausea dizziness, extremely high blood pressure and heart rate which
resulted in repeated trips to and was verified by the emergency rooms I went to. It
was maliciously done and designed to harm me physically and mentally which has
most certainly occurred. In fact, as soon as I started typing this letter on my
computer the pain increased dramatically. I then got up and quietly moved into the
kitchen away from the living room and, after hearing someone walking and pushing
things around the floor in the apartment above me, it started in the kitchen as well.
Severe pain, and dizziness, ringing in my ears, nausea. I can barely draft this
Complaint and that’s exactly why the FBI above and next to me has turned up the
whatever electronic harassment device they are using.
He additionally claims that Defendants have engaged in a “campaign to injure, oppress, threaten,
and Intimidate” him by trying to frame him with other crimes, by attempting to prevent and
thwart legal action, and by preventing him from receiving medical care. He reports possessing
an audio recording of the FBI telling him he should drop or settle the suit and that as soon as the
lawsuit ends the harassment will stop.
Plaintiff describes the various ways Defendants are conspiring with the FBI. For
example, he alleges that the numerous Defendant hospitals and clinics conspired with the FBI by
allowing that agency “to place recording devices, audio and video, in their hospital and clinics to
listen in on and view that treatment so as to be able to manipulate [his] medical care.” Plaintiff
claims that every doctor’s visit he has had for the last five years has been monitored and listened
to by the FBI. Plaintiff additionally claims that other Defendants “broke into his hotel room
apartment, home car and other property without permission and went through [his] things and
deliberately damaged other property illegally placing listening devices in [his] car and home.”
Also, claims Plaintiff, Defendant Yahoo deliberately allowed the FBI to delete his emails and
intercept communications; Defendant Salon Diversions deliberately messed up his hair each time
he went there for a haircut, would angle the chair in such a manner as to inflict pain while he was
at the salon, and would follow him around town, such as to the post office; and Defendant Best
Buy actively helped the FBI by taking cameras off the shelf and pretending that no cameras were
available and by deliberately selling him faulty cameras that did not work.
Plaintiff advises that he needs access to proper medical assistance and prevention of
further pain and suffering caused by the “malicious and negligent acts” of Defendants. He
additionally requests appointment of counsel and appointment of a guardian ad litem in this
“[I]t is well established that federal courts are courts of limited jurisdiction, possessing
only that power authorized by the Constitution and statute.” Hudson v. Coleman, 347 F.3d 138,
141 (6th Cir. 2003). Because federal courts have no power to act without jurisdiction, “[t]he first
and fundamental question presented by every case brought to the federal courts is whether it has
jurisdiction to hear a case, even where the parties concede or do not raise or address the issue.”
Douglas v. E.G. Baldwin & Assocs., Inc., 150 F.3d 604, 606-07 (6th Cir. 1998), abrogation on
other grounds recognized by Heartwood, Inc. v. Agpaoa, 628 F.3d 261, 266 (6th Cir. 2010). The
party who seeks to invoke a federal district court’s jurisdiction bears the burden of establishing
the court’s authority to hear the case. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375,
377 (1994). “Whenever it appears by suggestion of the parties or otherwise that the court lacks
jurisdiction of the subject matter, the court shall dismiss the action.” Fed. R. Civ. P. 12(h)(3).
Moreover, even though a plaintiff has paid the filing fee and without affording a plaintiff
an opportunity to amend, “a district court may, at any time, sua sponte dismiss a complaint for
lack of subject-matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil
Procedure when the allegations of a complaint are totally implausible, attenuated, unsubstantial,
frivolous, devoid of merit, or no longer open to discussion.” Apple v. Glenn, 183 F.3d 477, 479
(6th Cir. 1999) (citing Hagans v. Lavine, 415 U.S. 528, 536-37 (1974)).
Diversity of citizenship
Plaintiff first asserts jurisdiction based on diversity of citizenship. Under the diversity
statute, codified at 28 U.S.C. § 1332, “[t]he district courts shall have original jurisdiction of all
civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of
interest and costs, and is between . . . citizens of different States; . . . .” § 1332(a)(1). There
must be “complete diversity between the plaintiffs and defendants, i.e., ‘diversity jurisdiction
does not exist unless each defendant is a citizen of a different State from each plaintiff.’”
Medlen v. Estate of Meyers, 273 F. App’x 464, 469 (6th Cir. 2008) (quoting Owen Equip. &
Erection Co. v. Kroger, 437 U.S. 365, 373 (1978)) (emphasis in Owen). Here, Plaintiff fails to
allege an amount-in-controversy exceeding $75,000, and by providing addresses in Kentucky for
himself and several Defendants, he fails to demonstrate complete diversity of citizenship.
Consequently, Plaintiff fails to demonstrate this Court’s diversity jurisdiction.
FBI is Defendant
Second, Plaintiff claims that the Court has jurisdiction to hear this case because the FBI,
an organization of the Federal Government, is a Defendant. Presumably, he is asserting
jurisdiction under 28 U.S.C. § 1346, which lists a district court’s jurisdiction when the United
States is a defendant. “Absent a waiver, sovereign immunity shields the Federal Government
and its agencies from suit.” F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994). Plaintiff does not
bring this action under any federal law where immunity has been waived. Thus, Plaintiff has not
demonstrated jurisdiction on this basis.
18 U.S.C. §§ 241 and 242
Third, Plaintiff claims that this Court has jurisdiction to hear this case because
Defendants violated 18 U.S.C. §§ 241 and 242. Under 28 U.S.C. § 1331, “[t]he district courts
shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties
of the United States.” § 1331 (emphasis added). Sections 241 and 242, however, are criminal
statutes, which do not provide for a private right of action. See United States v. Oguaju, 76 F.
App’x 579, 581 (6th Cir. 2003) (“[T]he district court properly dismissed Oguaju’s claim
pursuant to 18 U.S.C. §§ 241 or 242 because Oguaju has no private right of action under either
of these criminal statutes.”). Plaintiff, therefore, has failed to establish this Court’s federalquestion jurisdiction under § 1331.
Plaintiff next claims that this Court has jurisdiction under Ky. Rev. Stat. Ann. § 454.210.
That statute is entitled “Personal jurisdiction of [Kentucky] courts over nonresidents; process,
how served; venue.” State law, however, does not dictate the federal court’s jurisdiction to hear
cases. Thus, the Kentucky statute is inapplicable and provides no basis upon which to invoke
this Court’s jurisdiction.
Finally, Plaintiff contends that this Court has jurisdiction to hear this case because his
physical impairment (a spinal cord injury causing very weak back and legs) would prevent him
from getting around as well to other federal districts to pursue this lawsuit. This circumstance
does not provide any jurisdictional basis for this Court to entertain Plaintiff’s suit.
For the reasons set forth above, the Court will enter a separate Order dismissing this
action for lack of subject-matter jurisdiction.
April 18, 2011
Plaintiff, pro se
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