Bond v. Hughes et al
MEMORANDUM OPINION AND ORDER denying 15 Motion of plaintiff to Stay and/or Toll Plaintiffs Opposition to the Defendants Forthcoming Response to the Complaint; granting 16 Motion of USA to Dismiss ; granting 16 Motion of USA to be substitut ed in place of individual Defendants as to the Federal Tort Claims Act ; denying 18 Motion of plaintiff for Discovery; granting 19 Consent Motion of defendants for an Extension of Time to Respond to Pending Motions. Signed by Judge David A. Faber on 4/12/2017. (jnls, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
WILLIAM C. BOND,
Civil Action No.: 1:16-02723-DAF
JOHNNY L. HUGHES, et al.
MEMORANDUM OPINION AND ORDER
Pending before the court is Plaintiff’s Complaint against
various federal officials in Maryland.
See Doc. No. 1.
Defendants are the United States Marshal for the District of
Maryland, the Special Agent in Charge of the Federal Bureau of
Investigation (“FBI”), and the United States Attorney for the
District of Maryland.
Plaintiff alleges cover-ups, surveillance
and entrapment based on conclusory allegations and little basis
in fact or, for that matter, law.
Plaintiff also seeks $15
million from Government Defendants for compensatory damages and
$30 million from them for punitive damages—and he does so 6
Plaintiff appears to seek a total of $270 million.
Plaintiff’s allegations are unavailing.
In addition, Plaintiff is a frequent litigant before this
Typically, he alleges various blanket but unspecific
violations of his legal rights.
He is now admonished that his
continuing to file frivolous and vexatious lawsuits may result
in an order denying him further access to the court on such
For several years, Plaintiff has protested what he claims
to be “‘provable corruption’ in the Maryland U.S. courthouse.”
In April 2013, Plaintiff created a public relations
campaign named the “Baltimore Corruption Wire.”
He also created
the phrase “White Guerilla Family” to refer to certain members
of the Maryland federal judiciary.
Plaintiff alleges that principally due to his protests and
corruption allegations he has been interviewed and surveilled by
Plaintiff further alleges that members of the
judiciary and other federal officials have conspired to violate
his First Amendment and due process rights.
premises his causes of action on the United States Supreme
Court’s decision in Bivens v. Six Unknown Named Agents, 403 U.S.
In particular, Plaintiff alleges the following six
• Count I – On July 19, 2013 and July 30, 2013,
federal agents questioned plaintiff “regarding the
To the extent Plaintiff’s Complaint alleges any statutory
claims, the court addresses them in footnote 2, infra.
potential safety of various government officials and
federal judges,” in an effort to “prevent and/or to
intimidate plaintiff’s planned demonstrations . . ..”
Doc. No 1.
• Count II – Plaintiff alleges that he met with
“activists” in July of 2013 to plan a protest at the
U.S. District Courthouse, but that the activists “were
undercover U.S. government agents sent (1) with the
clear intention to sabotage plaintiff’s U.S.
courthouse protests in any way possible and (2) to
criminally entrap plaintiff by attempting to engage
plaintiff in discussions of violence against federal
Doc. No. 1.
• Counts III & IV – Plaintiff alleges in the fall of
2013, a Deputy U.S. Marshal informed Plaintiff that he
had been under surveillance since 2010.
alleges that this surveillance violated his
See Doc. No. 1.
• Count V – Plaintiff alleges that on September 29,
2015, a Deputy U.S. Marshal “invade[d]” his pro se
litigant work and attempted to criminally entrap him.”
Doc. No 1.
• Count VI – Plaintiff alleges that the Defendants
“have at all times since 2001 until present been in an
extended conspiracy to deprive plaintiff of his First
Amendment & due process rights,” and that “[w]hen a
new U.S. Attorney was assigned to Maryland in 2006,
part of his assignment was to continue to ignore
and/or cover-up the aforementioned conspiracy against
Doc. No 1.
With respect to each count, Plaintiff alleges that “[t]hese
intentional, knowing, bad-faith, and illegal acts by the
defendants caused plaintiff great worry, anxiety, fear,
sleeplessness, etc., amongst many other things, as it was clear
to plaintiff that his enemies would stop at nothing to defeat
his constitutional rights.”
Doc. No 1.
United States filed its Motion to dismiss Plaintiff’s Complaint,
or, in the alternative, substitute the United States as the sole
Defendant and dismiss the Complaint.
See Doc. No. 16.
APPLICABLE LEGAL STANDARDS
Next, the court articulates the legal standards pertinent
to Rules 12(b)(1), 12(b)(6) and 8(a)(2) of the Federal Rules of
Civil Procedure (“Civil Rules”), respectively.
A. Rule 12(b)(1)
The court commences its analysis with subject matter
A motion to dismiss for lack of subject matter
jurisdiction under Federal Rule of Civil Procedure 12(b)(1) asks
“whether the court has the competence or authority to hear the
Davis v. Thompson, 367 F. Supp. 2d 792, 799 (D. Md.
Prior to reaching the merits of a case, a federal court
first must determine that it has jurisdiction over the claim
See Sinochem Int’l Co. Ltd. v. Malaysia Int’l
Shipping Corp., 549 U.S. 422, 430-31 (2007) (citing Steel Co. v.
Citizens for Better Env’t, 523 U.S. 83, 93-102 (1998)).
defendant moves to dismiss under Rule 12(b)(1), the plaintiff
bears the burden of proving that subject matter jurisdiction
See Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th
Cir. 1999) (citing Richmond, Fredericksburg & Potomac R.R. Co.
v. U.S., 945 F.2d 765, 768 (4th Cir. 1991)).
that the plaintiff establish subject matter jurisdiction “as a
threshold matter ‘springs from the nature and limits of the
judicial power of the United States’ and is ‘inflexible and
Steel Co., 523 U.S. at 94—95 (quoting
Mansfield, C. & L. M. R. Co. v. Swan, 111 U.S. 379, 382 (1884)).
Hence, “[t]he objection that a federal court lacks subjectmatter jurisdiction may be raised by a party, or by a court on
its own initiative, at any stage in the litigation, even after
trial and the entry of judgment.”
Arbaugh v. Y & H Corp., 546
U.S. 500, 506 (2006) (citing Fed. R. Civ. P. 12(b)(1)).
In circumstances where a defendant challenges subject
matter jurisdiction, “the district court is to regard the
pleadings as mere evidence on the issue, and may consider
evidence outside the pleadings without converting the proceeding
to one for summary judgment.”
Evans, 166 F.3d at 647 (quoting
Richmond, Fredericksburg & Potomac R.R. Co., 945 F.2d at 768);
see also Williams v. U.S., 50 F.3d 299, 304 (4th Cir. 1995)
(When considering exhibits beyond the pleadings, the court “is
free to weigh the evidence and satisfy itself as to the
existence of its power to hear the case.”) (internal quotation
Under such circumstances, “the court may look beyond
the pleadings and the jurisdictional allegations of the
complaint and view whatever evidence has been submitted on the
issue to determine whether in fact subject matter jurisdiction
Khoury v. Meserve, 268 F. Supp. 2d 600, 606 (D. Md.
2003) (quotation omitted), aff’d, 85 F. App’x 960 (4th Cir.
The court may properly grant a motion to dismiss for
lack of subject matter jurisdiction “where a claim fails to
allege facts upon which the court may base jurisdiction.”
Davis, 367 F. Supp. 2d at 799 (citing Crosten v. Kamauf, 932 F.
Supp. 676, 679 (D. Md. 1996)).
Dismissal for lack of subject matter jurisdiction tests
whether the court has the authority to hear a case or
After all, the “[f]ederal courts are courts of
limited jurisdiction, constrained to exercise only the authority
conferred by Article III of the Constitution and affirmatively
granted by federal statute.”
Gill v. PNC Bank et al., Civil
Action No. TDC-14-0677, 2015 WL 629004, at *3 (D. Md. Feb. 11,
2015) (quoting In re Bulldog Trucking, Inc., 147 F.3d 347, 352
(4th Cir. 1998)) (internal quotation marks omitted).
federal courts are not like the state courts, which retain
It follows that this court, as a federal
court, is empowered to exercise jurisdiction only when the
Constitution and federal law so permit.2
There is a constitutional provenance at the heart of this
Article III limits the subject matter jurisdiction
of federal courts to “cases” and “controversies.”
Wright, 468 U.S. 737, 750 (1984).
See Allen v.
Consistent with the “cases”
and “controversies” requirement, plaintiffs must demonstrate
that they have standing to bring, and maintain, suit in federal
court throughout the duration of litigation.
In fact, the
United States Supreme Court has cast the doctrine of mootness as
intertwined with standing: “the doctrine of standing set in a
Generally speaking, courts should not be in the
philosopher-king business of worrying about consequences so long
as the law commands their behavior. In fact, “judges should . .
. strive (if humanly and so imperfectly) to apply the law as it
is, focusing backward, not forward, and looking to text,
structure, and history to decide what a reasonable reader at the
time of the events in question would have understood the law to
be—not to decide cases based on their own moral convictions or
the policy consequences they believe might serve society best.”
Neil M. Gorsuch, Of Lions and Bears, Judges and Legislators, and
the Legacy of Justice Scalia, 2016 Sumner Canary Lecture at Case
Western Reserve University School of Law (Apr. 7, 2016), in 66
CASE W. RES. L. REV. 905, 906 (2016).
time frame: The requisite personal interest that must exist at
the commencement of the litigation (standing) must continue
throughout its existence (mootness).”
Arizonans for Official
English v. Arizona, 520 U.S. 43, 68 n. 22 (1997).
because the federal courts “are not permitted to render an
Herb v. Pitcairn, 324 U.S. 117, 125—26
So true is this that “[t]he Supreme Court has made
clear that standing is an essential and unchanging part of that
case-or-controversy requirement, one that states fundamental
limits on federal judicial power in our system of government.”
Doe v. Obama, 631 F.3d 157, 160 (4th Cir. 2011) (quoting Lujan
v. Defenders of Wildlife, 504 U.S. 555, 560 (1992); Allen, 468
U.S. at 750) (citations and internal quotation marks omitted).
To satisfy the standing requirement, a plaintiff must
(1) that he has suffered an “injury in fact”
that is (a) particularized and (b) actual or
imminent, not conjectural or hypothetical;
(2) the injury is fairly traceable to the
challenged action of the defendant; and (3)
it is likely, as opposed to merely
speculative, that the injury will be
redressed by a favorable decision.
Doe, 631 F.3d at 160 (citing Friends of the Earth, Inc. v.
Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180—81 (2000)).
Furthermore, a plaintiff cannot demonstrate standing by
stating that he or she brings suit on behalf of the general
“Plaintiffs may not establish their standing to bring
suit merely because they disagree with a government policy or
because they share the ‘generalized interest of all citizens in
Moss et al. v. Spartanburg Cnty.
Sch. Dist. Seven, 683 F.3d 599, 604–05 (4th Cir. 2012) (quoting
Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208,
Therefore, a plaintiff may not predicate her
standing to sue “upon an interest . . . which is held in common
by all members of the public, because of the necessarily
abstract nature of the injury all citizens share.”
Prince George’s Cnty. et al, 423 F. Supp. 1045, 1052 (D. Md.
1976) (quoting Schlesinger, 418 U.S. at 220) (internal quotation
B. Rule 12(b)(6)
“[An] important mechanism for weeding out meritless
claims,” dismissal for failure to state a claim upon which
relief can be granted is premised on Rule 12(b)(6) of the Civil
Fifth Third Bancorp v. Dudenhoeffer, 134 S. Ct. 2459,
A Rule 12(b)(6) defense asserts that even if all
the factual allegations in a complaint are true, they still
remain insufficient to establish a cause of action.
be because prevailing law governing the adjudicator is set
against such a cause of action.
This court is also mindful that
“[w]hether a particular ground for opposing a claim may be the
basis for dismissal for failure to state a claim depends on
whether the allegations in the complaint suffice to establish
that ground, not on the nature of the ground in the abstract.”
Jones v. Bock, 549 U.S. 199, 215 (2007).
“The purpose of a Rule 12(b)(6) motion is to test the
[legal] sufficiency of a complaint; importantly, [a Rule
12(b)(6) motion] does not resolve contests surrounding the
facts, the merits of a claim, or the applicability of defenses.”
Edwards v. City of Goldsboro, 178 F.3d 231, 243–44 (4th Cir.
1999) (citations and internal quotation marks omitted).
plaintiff must allege “‘enough facts to state a claim to relief
that is plausible on its face’” and “‘raise a right to relief
above the speculative level.’”
Wahi v. Charleston Area Med.
Ctr., Inc., 562 F.3d 599, 615 n.26 (4th Cir. 2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
The United States Supreme Court has maintained that
“[w]hile a complaint . . . does not need detailed factual
allegations, . . . a plaintiff’s obligation to provide the
grounds of his entitle[ment] to relief requires more than labels
and conclusions, and a formulaic recitation of the elements of a
cause of action will not do.”
Twombly, 550 U.S. at 555
(citations and internal quotation marks omitted).
need not “accept as true unwarranted inferences, unreasonable
conclusions, or arguments.”
E. Shore Mkts., Inc. v. J.D.
Assocs. Ltd P’ship, 213 F.3d 175, 180 (4th Cir. 2000).
must also take care not conflate the veracity or even accuracy
underlying the allegations that a plaintiff has leveled against
a defendant with the allegations’ likelihood of success.
“the pleading must contain something more . . . than . . . a
statement of facts that merely creates a suspicion [of] a
legally cognizable right of action,” 5 C. WRIGHT & A. MILLER, FEDERAL
PROCEDURE § 1216, pp. 235–236 (3d ed. 2004),
“assum[ing]” of course “that all the allegations in the
complaint are true (even if doubtful in fact),” Twombly, 550
U.S. at 555, it is also the case that “Rule 12(b)(6) does not
countenance . . . dismissals based on a judge’s disbelief of a
complaint’s factual allegations.”
319, 327 (1989).
Neitzke v. Williams, 490 U.S.
Therefore, courts must allow a well-pleaded
complaint to proceed even if it is obvious “that a recovery is
very remote and unlikely.”
Scheuer v. Rhodes, 416 U.S. 232, 236
This is the United States Supreme Court’s teaching in
See Twombly, 550 U.S. at 555.
C. Rule 8(a)(2)
Rule 8(a)(2) of the Civil Rules provides that “a pleading
must contain a ‘short and plain statement of the claim showing
that the pleader is entitled to relief.’”
Ashcroft v. Iqbal,
556 U.S. 662, 677—78 (2009) (citing Federal Rule of Civil
Rule 8(a)(2) requires plaintiffs to furnish
only “a short and plain statement of the claim showing that the
pleader is entitled to relief,” so that “the defendant [might
have] fair notice of what the . . . claim is and the grounds
upon which it rests.”
Conley v. Gibson, 355 U.S. 41, 47 (1957).
Thus, it is clear that Rule 8(a)(2) tends to interplay with Rule
12(b)(6) of the Civil Rules, which governs motions to dismiss.
Cognizant of these principles, the court advances to
analyze Plaintiff’s claims.
A. Plaintiff Has Stated No Bivens Action Against Defendants in
their Individual Capacities; Plaintiff May Not Maintain a Bivens
Action Against Defendants in their Official Capacities.
Plaintiff bases his case on Bivens.
In Bivens, the United
States Supreme Court recognized a private cause of action for
certain kinds of constitutional violations.
In the Supreme
Court’s words, “[t]he very essence of civil liberty certainly
consists in the right of every individual to claim the
protection of the laws, whenever he receives an injury.”
Bivens, 403 U.S. at 397 (quoting Marbury v. Madison, 5 U.S. 137,
But Plaintiff must still satisfy the requirement
that a Bivens claim has to state sufficient “factual content
that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
U.S. at 678.
As such, Plaintiff “must plead that each
Government-official defendant . . . has violated the
Id. at 676 (emphasis added).
The Supreme Court
also has asserted that “[i]ndividual government officials
‘cannot be held liable’ in a Bivens suit ‘unless they themselves
Wood v. Moss, 134 S. Ct. 2056,
2070 (2014) (citing Iqbal, 556 U.S. at 683); Danser v.
Stansberry, 772 F.3d 340, 349 (4th Cir. 2014) (“liability may be
imposed based only on an official’s own conduct.”) (emphasis
Here, Plaintiff has not stated a Bivens claim against any
of the Defendants.
The body of the Complaint fails to identify
SAC Perkins and Marshal Hughes.
The Complaint contains no
content explaining how either of these Defendants may have
violated Plaintiff’s constitutional rights.
To the extent that
they are named as supervisors of the federal agents discussed in
the Complaint, Bivens does not permit respondeat superior
See Trulock v. Freeh, 275 F.3d 391, 402 (4th Cir.
2001) (“In a Bivens suit, there is no respondeat superior
liability.”); Estate of Rosenberg v. Crandell, 56 F.3d 35, 37
(8th Cir. 1995) (“[T]here is no respondeat superior liability
Defendants are liable for their personal acts
Thus, Plaintiff plainly has failed to state a Bivens
claim as to SAC Perkins and Marshal Hughes.
With respect to U.S. Attorney Rod Rosenstein, Plaintiff’s
Complaint states: “[w]hen [Rosenstein] was assigned to Maryland
in 2006, part of his assignment was to continue to ignore and/or
cover-up the aforementioned conspiracy against Plaintiff.”
Plaintiff, however, has supplied no facts at all to
support his allegation that Rosenstein, himself, did anything to
violate Plaintiff’s constitutional rights.
conclusory allegations—he calls it a “cover-up” and a
“conspiracy” but nothing more, Doc. No. 1,—fail to state a
See Iqbal, 556 U.S. at 681 (citing Twombly, 55 U.S. at
Therefore, Plaintiff has failed to state a Bivens
claim against U.S. Attorney Rosenstein.
The United States Court of Appeals for the Fourth Circuit
maintains that “a Bivens action does not lie against either
agencies or officials in their official capacity.”
Doe v. Chao,
306 F.3d 170, 184 (4th Cir. 2002) (citing FDIC v. Meyer, 510
U.S. 471, at 484-86 (1994)); see also Curtis v. Pracht, 202 F.
Supp. 2d 406, 419 (D. Md. 2002).
Accordingly, to the extent
that Plaintiff’s claims against the Defendants are deemed to be
based on their official capacities, Bivens is not helpful to
Consequently, this Court lacks jurisdiction over
In order to comprehensively treat the claims
presented, the court will address the remaining salient
B. Plaintiff has No Standing to Bring a First Amendment Claim.
Plaintiff alleges that the unnamed FBI agents interviewed
him to “prevent and/or to intimidate plaintiff’s planned
demonstrations at the Baltimore U.S. courthouse on August 4,
Doc. No. 1.
Under Fourth Circuit jurisprudence, an
indispensable element of standing for purposes of First
Amendment claims is that a plaintiff must demonstrate some
“In First Amendment cases, the injury-in-fact
element is commonly satisfied by a sufficient showing of ‘selfcensorship, which occurs when a claimant is chilled from
exercising h[is] right to free expression.’”
Futrell, 721 F.3d 226, 235 (4th Cir. 2013) (citations omitted).
In that context, “the chilling effect cannot ‘arise merely from
the individual’s knowledge that a governmental agency was
engaged in certain activities or from the individual’s
concomitant fear that, armed with the fruit of those activities,
the agency might in the future take some other and additional
action detrimental to that individual.’”
Laird v. Tatum, 408 U.S. 1, 11 (1972)).
Id. at 236 (quoting
Indeed, the Fourth
Circuit impresses upon us that “‘[a]llegations of a subjective
‘chill’ are not an adequate substitute for a claim of specific
present objective harm or a threat of specific future harm [.]’”
Cooksey, 721 F.3d at 236 (quoting Laird, 408 U.S. at 13—14).
There is a raison d’être behind all this.
adjudicative competence has limits.
One of those limits is that
our Nation’s federal courts may not be “transform[ed] . . . into
forums for taxpayers’ generalized grievances about the conduct
Hein v. Freedom from Religion Found., Inc., 551
U.S. 587, 612 (2007) (plurality opinion) (citations and internal
quotation marks omitted).
Such a drastic move “would open the
Judiciary to an arguable charge of providing government by
Id. (citations and internal quotation marks
This aperture “would [also] deputize federal courts
as virtually continuing monitors of the wisdom and soundness of
Executive action, and that, most emphatically, is not the role
of the judiciary.”
Id. (citations and internal quotation marks
This course of conduct would not satisfy Article III,
which limits the jurisdiction of the federal courts to “cases”
Plaintiff has furnished this court with no evidence of a
chilling effect on his speech.
Plaintiff does not seriously
contest that the reason for the interviews was concern about the
safety of federal judges and other government officials due to
Plaintiff’s communications with them.
See Doc. No. 1.
never does Plaintiff allege that the agents forbade him from
protesting nor did they take any actions to prevent the
Other than Plaintiff’s own speculation that the
interviews were for the purpose of preventing him from
protesting, he provides no evidence that his speech was chilled
or that he self-censored himself.
He certainly did not do the
Quite the contrary, Plaintiff appears to admit that
subsequently he protested for several weeks.
See Doc. No. 1.
There is no allegation whatsoever that any of the named
Defendants did anything at all to restrict Plaintiff’s First
Accordingly, Plaintiff’s First Amendment claim should be,
and now is, dismissed.
C. Plaintiff Fails to State a Due Process Transgression.
The Due Process Clause of the Fifth Amendment states: “nor
shall any person . . . be deprived of life, liberty, or
property, without due process of law.” U.S. Const. Amend. 5.
There are two types of due process claims: (1) procedural due
process claim which alleges a denial of fundamental procedural
fairness, see Fuentes v. Shevin, 407 U.S. 67, 82 (1972); or (2)
substantive due process, which alleges the exercise of power
without any reasonable justification in the service of a
legitimate governmental objective.
See Rucker v. Harford Cty.,
946 F.2d 278, 281 (4th Cir. 1991), cert. denied, 502 U.S. 1097
(1992); see also Daniels v. Williams, 474 U.S. 327, 331 (1986).
Under prevailing jurisprudence, substantive due process
remains a fluid and flexible concept.
Violations of substantive
due process take place only in circumstances where the
government’s actions in depriving a person of life, liberty, or
property are so unjust that no amount of fair procedure can
redeem their constitutionality.
“[T]he substantive due process
guarantee protects against government power arbitrarily and
833, 846 (1998).
Cty. of Sacramento v. Lewis, 523 U.S.
“Asserted denial is to be tested by an
appraisal of the totality of facts in a given case.”
Brady, 316 U.S. 455, 462 (1942).
This means that “[something]
which may, in one setting, constitute a denial of fundamental
fairness, shocking to the universal sense of justice, may, in
other circumstances, and in the light of other considerations,
fall short of such denial.”
In one of those rare dissents
that subsequently gained much currency, the second JUSTICE Harlan
[T]he full scope of the liberty guaranteed
by the Due Process Clause . . . is a
rational continuum which, broadly speaking,
includes a freedom from all substantial
arbitrary impositions and purposeless
restraints, . . . and which also recognizes,
what a reasonable and sensitive judgment
must, that certain interests require
particularly careful scrutiny of the state
needs asserted to justify their abridgment.
Poe v. Ullman, 367 U.S. 497, 543 (1961) (Harlan, J., dissenting
from dismissal on jurisdictional grounds) (adopted by joint
opinion in Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833,
Plaintiff has asserted only conclusory
allegations of perceived due process violations.
even though Plaintiff states that he was informed by a Deputy
U.S. Marshal that he was being surveilled, Plaintiff does not
indicate how, if at all, his due process rights were violated.
Moreover, there also exists no allegation that the government
conducted electronic surveillance of Plaintiff’s home telephone
without obtaining a warrant.
Additionally, Plaintiff fails to
attribute any unconstitutional act (or omission) to the named
Defendants. Accordingly, Plaintiff’s due process claim is not
As discussed below, none of the counts alleged by Plaintiff
suffices to state a claim for violating due process.
Count I: Plaintiff alleges several law enforcement visits
to him, “especially [an] attempt to arrest [P]laintiff for
illegal weapons possession.”
Doc. No. 1.
alleges that “the timing” of these alleged actions was “intended
with [only] one goal . . . in mind: to prevent and/or to
intimidate [P]laintiff’s planned demonstrations at the [United
States Courthouse in Baltimore].”
Doc. No. 1.
Plaintiff does not mention a specific legal violation.
Plaintiff’s Count I must be dismissed for both Rule
12(b)(6) and Rule 8(a)(2) deficiencies.
With respect to Rule
12(b)(6), Plaintiff fails to state a claim upon which relief can
be granted because Plaintiff quite simply states no claim.
refers vaguely to blanket “constitutional rights” at one point
but no more.
Doc. No. 1.
Moreover, whether a complaint must be
dismissed for failure to state a claim “depends on whether the
allegations in the complaint suffice to establish [a requisite]
ground, not on the nature of the ground in the abstract.”
Jones, 549 U.S. at 215 (emphasis added).
Neither in the
abstract nor in the allegations contained in the Complaint has
Plaintiff stated a claim on whose basis relief might be
This brings the court to the Rule 8(a)(2) deficiency: “a
pleading must contain a ‘short and plain statement of the claim
showing that the pleader is entitled to relief.’”
U.S. at 677—78 (citing Federal Rule of Civil Procedure 8(a)(2)).
Here, “the allegations are conclusory and not entitled to be
Iqbal, 556 U.S. at 681.
The alleged law-
enforcement visits might have been supported with ample probable
cause and/or compelling governmental interests, not necessarily
conducted, if conducted they were, with the goal of intimidating
Plaintiff (as he alleges).
See Doc. No. 1.
The Complaint is
speculative and it glosses over that legitimate possibility.
Just like in Ashcroft, Plaintiff’s omission as to the reasons
impelling the alleged governmental conduct render his complain
556 U.S. at 680—81.
Furthermore, if there exist “more likely explanations [for
alleged defendant actions or omissions],” then “the [conduct
alleged] do[es] not plausibly establish th[e] purpose[s],”
motives and/or reasons that a plaintiff alleges guided the
Id. at 681.
Here it is more likely that
Defendants visited Plaintiff and/or sought to arrest him because
of bona fide and perfectly lawful concerns about illegal conduct
on Plaintiff’s part, rather than any retaliation Defendants
wanted to inflict on Plaintiff.
Accordingly, Count I is
dismissed for both Rule 12(b)(6) and Rule 8(a)(2) deficiencies.
Count II: Plaintiff alleges that “[a] ‘black lives matter’
type activist contacted [him]” and then proceeded to “offer to
help with the planned protests, including by providing ‘bodies’
to protest, money for advertising, and grassroots help in the
‘black’ community . . ..”
Doc. No. 1.
But then, Plaintiff
alleges, on the appointed protest day neither this “activist”
nor his “wife” nor the 50 or more “bodies” Plaintiff had been
promised showed up.
Doc. No. 1.
Plaintiff points to his own
“[i]nformation and belief” that this “‘activist’ and his ‘wife’
were undercover U.S. government agents sent . . . with the clear
intention to sabotage” the planned protests and “to criminally
entrap Plaintiff by attempting to engage [P]laintiff in
discussions of violence against federal officials . . ..”
Plaintiff states no actual legal claim.
Count II is dismissed for failure to state a claim under Rule
12(b)(6) of the Civil Rules.
Moreover, for reasons similar to
the court’s Count I analysis, here Plaintiff states only
“conclusory” allegations that are grounded solely in conjecture
and speculation without any basis in fact.
Ashcroft, 556 U.S.
Plaintiff’s Complaint neglects to consider the distinct
possibility, and one that is far likelier than the conspiracy
theory Plaintiff advances, that a genuine or even impersonator
of a “Black Lives Matter” activist did interact with Plaintiff
prior to the protest’s appointed hour but, for reasons
unbeknownst to Plaintiff, turned out to be a no-show on the
protest’s appointed hour.
This court has no warrant to hale federal officials, or for
that matter any defendants, before the judicial system on such
flimsy and legally deficient bases.
Rule 8(a)(2) of the Civil Rules.
This is impermissible under
As a result, Plaintiff’s Count
II must be dismissed for both Rule 12(b)(6) and Rule 8(a)(2)
Count III: Plaintiff alleges that a deputy U.S. marshal
(DUSM) was “spy[ing]” on Plaintiff since Plaintiff filed a
similar suit against the U.S. Attorney for the District of
Maryland in 2010.
Doc. No. 1.
Here, Plaintiff mentions due
process as the basis for Count III.
However, it is the Fourth
Amendment, instead of due process, that is the appropriate basis
for challenging governmental acts of surveillance.
due process analysis is . . . inappropriate in . . . [a] case
only if . . . [a] claim is covered by the Fourth Amendment.”
Lewis, 523 U.S. at 843; see also Katz v. United States, 389 U.S.
347 (1967); Klayman v. Obama, 957 F. Supp. 2d 1 (D.D.C. 2013).
Thus, Count III does not survive the standard required by Rule
In addition, once again Plaintiff states only “conclusory”
allegations that are grounded solely in conjecture and
speculation without any basis in fact.
Ashcroft, 556 U.S. at
This is quite like the court’s aforementioned observations
concerning Counts I and II.
Count III thus falls short of
satisfying Rule 8(a)(2) as well.
Count III must be dismissed on
account of both Rule 12(b)(6) and Rule 8(a)(2) deficiencies.
Plaintiff alleges that the same DUSM “told
[P]laintiff about how his surveillance of [P]laintiff continued
in 2012, after [P]laintiff had lost his home, his dog, all his
possessions, etc., and was living in an unelectrified ‘squat’ in
a derelict building.”
Doc. No. 1.
Plaintiff mentions “due
process and civil rights” as the bases for this count.
reasons given in the court’s Count III analysis, Plaintiff’s
Count IV must be dismissed for both Rule 12(b)(6) and Rule
Plaintiff alleges that the same DUSM endeavored
“to invade [Plaintiff’s] pro se litigant work product” in a qui
tam action Plaintiff had filed against various Government
Doc. No. 1.
Plaintiff further alleges that
the DUSM “work[ed] in tandem with [a] U.S. judge . . . to
criminally entrap” Plaintiff.
Here, Plaintiff does not
even state a single legal basis for the claim.
allegations are just “conclusory.”
Ashcroft, 556 U.S. at 681.
For reasons materially indistinguishable from the ones already
given in the earlier analyses, Count V must be dismissed for
both Rule 12(b)(6) and Rule 8(a)(2) deficiencies.
Plaintiff alleges that “a federal judge [acted]
with malice aforethought to have a 2001 federal case assigned to
him, which he planned, in advance, to sabotage.”
Doc. No. 1.
Two other federal judges are alleged to have helped in covering
According to Plaintiff, there was also a vast
judicial conspiracy to “thwart his actions [repeatedly.]”
Here, while Plaintiff alleges that certain Government Defendants
“have at all times since 2001 until present been [involved] in
an extended conspiracy to deprive [P]laintiff of his First
Amendment [and] due process rights, his liberty, and his right
to his own property, if not other constitutional deprivations,”
Plaintiff does not assert a cognizable legal right this alleged
conspiracy actually violates.
For reasons materially
indistinguishable from the ones already given in the earlier
analyses, Count VI must be dismissed for both Rule 12(b)(6) and
Rule 8(a)(2) deficiencies.
Consequently, all of Plaintiff’s due process claims fail.
They must be dismissed.
The same, the court already has
explained, is true of the First Amendment claim—on the basis of
In short, all of Plaintiff’s claims are to be
D. Defendants are Entitled to Qualified Immunity.
Qualified immunity protects federal officials from
liability in Bivens suits unless a plaintiff can plead “facts
showing (1) that the official violated a statutory or
constitutional right, and (2) that the right was ‘clearly
It is difficult to understand whether Plaintiff's
Complaint incorporates any claim under the Federal Tort Claims
Act (“FTCA”), 28 U.S.C. § 2679(d)(1). The court grants the
United States’ motion to be substituted in place of individual
Defendants as to the FTCA claim. (Doc. No. 16-1.) Any tort
claim must be dismissed because Plaintiff failed to exhaust
administrative remedies. The FTCA provides that a plaintiff
must exhaust administrative remedies by, inter alia, filing a
claim with the “appropriate Federal agency.” 28 U.S.C. §
2675(a). A tort claim against the United States is “forever
barred” unless it is presented in writing to such agency within
two years after the claim accrues. 28 U.S.C. § 2401(b).
Plaintiff has not submitted a claim to any federal agency with
respect to any tort claims. Consequently, Plaintiff’s FTCA
claim incorporating tort causes of action shall be forever
established’ at the time of the challenged conduct.”
v. al-Kidd, 563 U.S. 731, 735 (2011).
In order to satisfy the
first prong, a plaintiff must allege sufficient facts that “each
Government-official defendant, through the official’s own
individual actions, has violated the Constitution.”
U.S. at 676 (emphasis added).
As for the second prong, the
right’s delineations must be “sufficiently definite,” so “that
any reasonable official in the defendant’s shoes would have
understood that he was violating it.”
S. Ct. 2012, 2023 (2014).
Plumhoff v. Rickard, 134
The reason is simple: Before
subjecting a federal official who was trying her mortal best to
suit for actions committed in the course and/or pursuit of duty,
the law must be certain that she had had adequate notice that
her conduct was ultra vires.
Here, Plaintiff cannot show that Defendants are not
entitled to qualified immunity because he has not sufficiently
pleaded the first element—that any of the Defendants violated
his constitutional rights.
Indeed, Plaintiff has not expressed
how any named Defendants trampled on his constitutional rights.
Thus, Defendants are entitled to qualified immunity.
leveled against them must be dismissed.
This Complaint reads rather like a political thriller.
like other novels, in this Complaint there seem to be far too
much fiction, precious little fact, and copious innuendo—in
short, too many conclusory allegations—to commend it for its
veracity or even its plausibility.
This is not a salutary
Plaintiff, it seems, is intent on draining the Federal
Judiciary of our “limited resources.”
U.S. 16, 18 (1991) (per curiam).
Zatko v. California, 502
The court, therefore, repeats
its admonition that Plaintiff should take care not to lose
credibility by filing vexatious and frivolous complaints.
reason is simple: “[E]very paper filed with the Clerk of this
[c]ourt, no matter how repetitious or frivolous, requires some
portion of the institution’s limited resources.
A part of the
[c]ourt’s responsibility is to see that these resources are
allocated in a way that promotes the interests of justice.”
re McDonald, 489 U.S. 180, 184 (1989) (per curiam); see also
Martin v. District of Columbia Court of Appeals, 506 U.S. 1, 1
(1992) (per curiam) (applying this principle to “notorious
abuser[s]” of the judicial system).
Plaintiff’s becoming such a
notorious abuser helps no one, least of all Plaintiff himself.
The United States’ Motion to be substituted in place of
individual Defendants as to the Federal Tort Claims Act (“FTCA”)
claim is GRANTED.
See Doc. No. 16.
The United States’ Motion
to Dismiss this Complaint is GRANTED in full.
Plaintiff having provided the court with no convincing reasons,
Plaintiff’s Motion to Stay and/or Toll Plaintiff’s Opposition to
the Defendants’ Forthcoming Response to the Complaint is DENIED.
See Doc. No. 15.
Plaintiff’s Motion for Discovery is DENIED.
See Doc. No. 18.
Defendants’ Consent Motion for an Extension of
Time to Respond to Pending Motions Doc. Nos. 15 and 18 is
GRANTED. See Doc. No. 19.
The court DIRECTS the Clerk to remove
this case from the court’s docket.
The Clerk is further directed to forward a copy of this
Memorandum Opinion and Order to counsel of record and Plaintiff,
IT IS SO ORDERED this 12th day of April, 2017.
David A. Faber
Senior United States District Judge
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