Ndiaye v. Baker et al

Filing 54

MEMORANDUM OPINION and ORDER GRANTING 44 Defendant's MOTION to Dismiss for Failure to State a Claim; 46 MOTION to Dismiss for Failure to State a Claim as to Amended Complaint 49 MOTION to Dismiss for Failure to State a Claim; Directing Clerk to close the case. Signed by Judge Paul W. Grimm on 9/4/14. (c/m 9/9/14 jf2s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Soutltern Division

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Elhadji Ndiaye,

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Plaintiff,

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v.

Case No.: PWG-13-1701

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Rushern L. Baker, III, et al.,

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Defendants.

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MEMORANDUM

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OPINION AND ORDER

Elhadji Ndiaye felt that he was the target of government surveillance because of his
religion and national origin. Proceeding pro se, he filed a complaint against James R. Clapper,
Director of National Intelligence;

Lieutenant General Keith B. Alexander, Director of the

National Security Agency and Chief of the Central Security Service; United States Attorney
General Eric Holder; and Robert S. Muller, III, former director of the Federal Bureau of
Investigation (collectively, the "Federal Defendants"); as well as Rushern L. Baker, III, County
Executive for Prince George's County; and Bowie Mayor G. Frederick Robinson.
No. 1. Defendants moved to dismiss for failure to state a claim, ECF Nos. 7,12,31,

Comp!., ECF
and Ndiaye

filed an Amended Complaint, ECF No. 41. I now must determine whether he has stated a claim
in his Amended Complaint or if I should dismiss it, as Defendants all urge.!

Because the

1 Baker and Robinson moved to dismiss, ECF Nos. 44, 46, 46-1, incorporating
by reference the
arguments they made in their earlier motions to dismiss Plaintiffs original complaint ("Baker's
1st Mot." & "Robinson's 1st Mot."). Defendant Robinson also incorporates by reference
Baker's arguments for dismissal, as well as the Federal Defendants' arguments in favor of
striking the Amended Complaint, ECF No. 42. Plaintiff responded to both motions, ECF No. 48.
Defendants Baker and Robinson have not filed replies, and the time for doing so has passed. See

Amended Complaint includes only conclusory allegations and fails to allege that any defendant
took any specific action, I will dismiss the Amended Complaint in its entirety.
I.

FACTUAL BACKGROUND2

Ndiaye, who states that he is from West Africa but does not identify his country of origin,
claims that Defendants "engage[ d] in a policy and practice [o]f targeting the plaintiff because of
his adherence and practice of the religion of Islam and his national origin."

Am. CompI. 1-2.

Specifically, he claims that Defendants "secretly engaged in a government surveillance program
under the section 215 of the [P]atriot Act [50 U.S.C.

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1861(a)(l)]' against the plaintiff for more

th[a]n 6 years" and "listed the plaintiff in the WATCH LIST, based [s]olely on a bias,
discriminatory, and crude stereotypes policy and the sharing of factually incorrect and bigoted
biased with unknow[n] numbers of federal, state and local government agencies."

Id. at 5. He

alleges that he was the "target of numerous police activities [including] wiretapping, warrantless
searches, and an array of harassing 'dirty tricks' designed to deter pre terrorist crime."

Id.

Plaintiff claims that Defendants "collect[ ed], listen[ ed] [to] and [acquired] plaintiffs [sic] phone
calls, internet records, [c]redit card transactions and daily life actions ....

based solely on what

Loc. R. 105.2(a). The Federal Defendants jointly moved to dismiss, ECF No. 49, and filed a
memorandum in support, ECF No. 49-1, in which they incorporate by reference the arguments
they made in support of their motion to dismiss Plaintiff s original complaint, ECF Nos. 31, 37.
Plaintiff opposed the motion, ECF No. 51, and the Federal Defendants filed a reply, ECF No. 52.
A hearing is not necessary. See Loc. R. 105.6. For the reasons stated in this Memorandum
Opinion and Order, I will grant Defendants' motions and dismiss Plaintiffs Amended
Complaint. This Memorandum Opinion and Order disposes ofECF Nos. 44, 46 & 49.
Because I am dismissing the Amended Complaint for failure to state a claim, I need not
reach the Federal Defendants' argument that Plaintiffs Amended Complaint should be stricken
on procedural grounds, Fed. Defs.' Mem. 3, which Defendant Robinson adopted, see Robinson
Mem.3.
2 For purposes of considering whether Plaintiff has stated a claim, this Court accepts the facts
that Plaintiff alleged in his Amended Complaint, ECF No. 41, as true. See Aziz v. Alcolac, 658
F.3d 388, 390 (4th Cir. 2011).

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the plaintiff looks like, his religious beliefs, and his ethnic [0]rigin."

Id. at 1. He also alleges

that a police officer called him "monkey and horse." Id. at 6.
Ndiaye claims that he "contacted many officials for help," including "the Inspector
general," "the FBI," and "the Bowie mayor." !d. at 5. He does not allege how they responded to
his requests.
According

to Plaintiff,

the alleged

surveillance

amounted

harassment and cointelpro [sic]" and "ke[pt] him from holding ajob."
that Defendants'

actions "violated the equal protection clause."

Defendants violated 5 U.S.C.

S 706 by "exceed[ing]

to "bullying,

slander,

Am. CompI. 6. He insists
Id. at 1.

He alleges that

the authority granted by 50 U.S.c.

S 1861."

Am. CompI. 6. In his Prayer for Relief, Plaintiff lists, without explanation, the First and Fourth
Amendments to the United States Constitution, 50 U.S.C.
2520, 2702 & 2707(b)(1); and 47 U.S.C.
Defendants'

S 605.

SS

1809 & 1810, 18 U.S.C.

SS 2511,

Am. Compi. 7. He asks the Court to declare

actions unlawful; "to enjoin the Defendants from continuing this bias[ed], racial,

religious secret surveillance";

and to "require the defendants to purge from its databases all

records related to the plaintiff." Id. at 2.
II.

STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(6) provides for "the dismissal of a complaint if it
fails to state a claim upon which relief can be granted."
2012 WL 6562764, at *4 (D. Md. Dec. 13,2012).

Velencia v. Drezhlo, No. RDB-12-237,

This rule's purpose "'is to test the sufficiency

of a complaint and not to resolve contests surrounding the facts, the merits of a claim, or the
applicability of defenses.'" Id. (quoting Presley v. City a/Charlottesville,
Cir. 2006».

464 F.3d 480,483 (4th

To that end, the Court bears in mind the requirements of Fed. R. Civ. P. 8, Bell

Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009),
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when considering a motion to dismiss pursuant to Rule 12(b)(6). Specifically, a complaint must
contain "a short and plain statement of the claim showing that the pleader is entitled to relief,"
Fed. R. Civ. P. 8(a)(2), and must state "a plausible claim for relief," as "[t]hreadbare recitals of
the elements of a cause of action, supported by mere conclusory statements, do not suffice,"
Iqbal, 556 U.S. at 678-79.
Iqbal and Twombly).

See Velencia, 2012 WL 6562764, at *4 (discussing standard from

"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." Iqbal, 556 U.S. at 663.
Plaintiff is proceeding pro se, and his Amended Complaint is to be construed liberally.
See Haines v. Kerner, 404 U.S. 519,520 (1972). However, liberal construction does not absolve
Plaintiff from pleading plausible claims. See Holsey v. Collins, 90 F.R.D. 122, 128 (D. Md.1981)
(citing Inmates v. Owens, 561 F.2d 560,562-63

(4th Cir.1977)).

It is neither unfair nor umeasonable to require a pleader to put his
complaint in an intelligible, coherent, and manageable form, and his failure to do
so may warrant dismissal. District courts are not required to be mind readers, or to
conjure questions not squarely presented to them.
Harris v. Angliker, 955 F.2d 41, 1992 WL 21375, at * 1 (4th Cir. 1992) (per curiam) (internal
citations omitted).
III.

PARTIES' ARGUMENTS

Baker argues that the Amended Complaint must be dismissed because it "fails to identify
what, if any, actions or omissions [Baker] committed" and "fails to set forth any basis for
attributing liability to Rushern Baker, III for any alleged unlawful conduct."

Baker 1st Mot. 2.

Robinson also argues that Plaintiff fails to show any acts that he committed or other basis for his
liability.

Robinson Mem. 2.

"specifically

While noting that, in the Amended Complaint, Plaintiff now

states that Plaintiff 'contacted'

[Robinson]," Robinson contends that "[t]here is
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nothing actionable about that allegation, which does not even say anything about what, if any,
response there was from him." Id.
According

to the Federal Defendants,

Plaintiff does riot "allege

any specific act

undertaken by any of the individual Federal Defendants" or "any specific, concrete facts to
support any of his claims of harm or injury," and he does not identify any "specific instance
where he suffered any specific harm."

Fed. Defs.' 1st Mem. 2, ECF No. 31-1. They contend

that, "(w]hile he claims he was followed into various businesses, slandered, harassed, and
subjected to "abusive surveillance," he fails to mention where, when, how, or by whom any of
this occurred."

Id. at 6. They insist that any specific allegations are against the United States

Government, rather than any individuals. Fed. Defs.' 1st Reply 2, ECF No. 37.
The Federal Defendants argue that Plaintiffs

Amended Complaint includes "vague and

conclusory factual allegations," as well as "a number of new legal conclusions ... and a string of
statutory citations."

Fed. Defs.' Mem. 2. They maintain that Plaintiff fails to allege "what

specific actions the defendants committed, which defendants took which actions, or when those
actions supposedly occurred," and that "Plaintiffs

new allegations about being subject to

surveillance, watch-listing, tracking, psychological testing, bullying, slander, and police dirty
tricks," as well as "his assertions that he was 'followed by federal agents' ... in 2011 and then
experienced the 'same discriminatory abuses' on another occasion in 2012,'" fail to state a claim.
Id at 3-4. The Federal Defendants also argue that Plaintiff fails to "provide any factual basis"
for his claim that "the alleged conduct was undertaken because of his religion or national origin."
/d. at 4.
In Plaintiffs

view, Defendants' motions are "simply a renewal and restatement" of their

previous motions, which "this Court already denied." Pl.'s Opp'n to Baker & Robinson Mots. 2;
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see Pl.'s Opp'n to Fed. Defs.' Mot. 1. Plaintiff insists that venue is proper and that he "stated
federal and state constitutional claim[s] upon which relief may be granted." Pl.'s Opp'n to Baker
& Robinson Mots. 2. According to Plaintiff, "recent news reports" that "[k]nown perjurers such

as the Director of National Intelligence, James R. Clapper, ha[ve] lied repeatedly about engaging
in surveillance on American citizens and residents" provide "a confirmation of the allegations
the Plaintiff has been making for years." Pl.'s Opp'n to Fed. Defs.' Mot. 2.

IV.

DISCUSSION

Plaintiff alleges that Baker and Robinson, both state actors, violated 5 U.S.C.
provision of the Administrative Procedures Act ("APA"), 5 U.S.C.
surveillance they allegedly conducted.

S 701

S 706,

a

et seq., through the

This claim must be dismissed because the AP A does not

"provide[] a cause of action against state actors." S. C. Wildlife Fed. v. Limehouse, 549 F.3d 324,
330 (4th Cir. 2008); see 5 U.S.C.

S 701.

Also, to the extent that Plaintiff alleges that the Federal

Defendants violated the APA in their official capacities, the doctrine of sovereign immunity bars
such claims. See Kennedy v. McHugh, No. CCB-13-390, 2013 WL 4541404, at *2 (D. Md. Aug.
23, 2013), aff'd sub nom. Kennedy v. Dep't of the Army, 554 F. App'x 248 (4th Cir. 2014).
Further, Plaintiffs
constitutional

allegations "fail to make out a violation of a clearly established statutory or

right," and therefore "his claims against [the Federal Defendants]

individual capacit[ies] are also barred."

in [their]

See id. (noting that "government officials performing

discretionary functions are protected from liability for civil damages 'insofar as their conduct
does not violate clearly established

statutory or constitutional

rights" (quoting Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982))).

Plaintiff also claims that Defendants violated his constitutional rights under the First and
Fourth Amendments

through the surveillance

allegedly conducted pursuant
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to 50 U.S.C.

~ 1861(a)(1).3 A plaintiff states a claim under 42 U.S. ~ 1983 by '''alleg(ing] the violation of a
right secured by the Constitution and laws of the United States, and ...

show(ing] that the

alleged deprivation was committed by a person acting under color of state law." Jackson v. Pena,
No. WMN-14-516, 2014 WL 2803993, at *3 (D. Md. June 19, 2014) (quoting West v. Atkins,
487 U.S. 42, 48.(1988) (citations omitted)).

Similarly, Bivens v. Six Unknown Named Agents of

the Federal Bureau of Narcotics, 403 U.S. 388 (1971), "'established

that the victims of a

constitutional violation by a federal agent have a right to recover damages against the official in
federal court despite the absence of any statute conferring such a right.'"

Hartman v. Moore,

547 U.S. 250, 254 n.2 (2006) (quoting Carlson v. Green, 446 U.S. 14, 18 (1980)).

Thus, "a

Bivens action is the federal analog to suits brought against state officials under ... 42 U.S.C.
~ 1983."

Id.

"Case law involving ~ 1983 claims is generally applicable in Bivens actions."

Matthews v. Sullivan, No. 14-CV-500, 2014 WL 2206852, at * 3 n.3 (D. Md. May 23, 2014)
(citing Farmer v. Brennan, 511 U.S. 825 (1994) (applying ~ 1983 law in Bivens action)).

A ~ 1983 claim may be brought against a state actor in his or her official or individual
capacity.
2014).

Joseph v. Maryland, No. WDQ-13-402, 2014 WL 494578, at *6 (D. Md. Feb. 5,
It is unclear whether Plaintiff brings his claim against the two state-actor defendants,

Baker and Robinson,

in their individual

or official capacities.

Affording

his Amended

Complaint liberal construction, see Haines, 404 U.S. at 520, I will construe it both ways. As for

3 Section 1861(a)(1) provides:
(T]he Director of the Federal Bureau of Investigation or a designee of the Director
... may make an application for an order requiring the production of any tangible
things (including books, records, papers, documents, and other items) for an
investigation to obtain foreign intelligence information not concerning a United
States person or to protect against international terrorism or clandestine
intelligence activities, provided that such investigation of a United States person
is not conducted solely upon the basis of activities protected by the first
amendment to the Constitution.
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the Bivens claim against the Federal Defendants, "[a]ny remedy under Bivens is against federal
officials individually, not the federal government."

Randall v. United States, 95 F.3d 339, 345

(4th Cir. 1996); see Doe v. Chao, 306 F.3d 170, 184 (4th Cir. 2002) ("[A] Bivens[] action does
not lie against either agencies or officials in their official capacity.").

Therefore, Ndiaye's

Bivens claim necessarily is against the Federal Defendants in their individual capacities.

See

Randall, 95 F.3d at 345.

Section 1983 actions "against officers in their official capacity' generally represent only
another way of pleading an action against an entity of which an officer is an agent,'''

and

therefore, "'in an official-capacity suit the entity's "policy or custom" must have played a part in
the violation of federal law.''' Joseph, 2014 WL 494578, at *6 (quoting Graham, 473 U.S. at
165-66 (quoting Monell, 436 U.S. at 690 n. 55». Ndiaye makes only general statements about
the government's

surveillance

and its "crude stereotypes policy," as well as unsupported

assertion that the surveillance was based solely on his religion and unidentified national origin.
These pleadings do not "allow[] the court to draw the reasonable inference that [either] defendant
is liable for the misconduct alleged." Iqbal, 556 U.S. at 663.

Consequently, Ndiaye has not

alleged sufficiently "the existence of any policy or custom of any entity of which the ...
defendants are agents that led to violations of his constitutional rights," and therefore he has not
stated an official-capacity claim against either Baker or Robinson. See Joseph, 2014 WL 494578;
at *6; Iqbal, 556 U.S. at 678-79.

As an individual-capacity

claim under

S

1893 or Bivens, Plaintiffs

threadbare and

conclusory allegations against Baker, Robinson, and the Federal Defendants fare no better. To
state such a claim against anyone of the Defendants, Plaintiff

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must allege that the defendant was personally involved in the alleged deprivations
or that: (i) he had actual or constructive knowledge that his staff was engaged in
unconstitutional conduct; (ii) he tacitly authorized the conduct; and (iii) there was
an affirmative causal link between the supervisor's inaction and the injury
suffered by the Plaintiff.
Joseph, 2014 WL 494578, at *7. Ndiaye has not alleged that any of the Defendants took any
specific actions or that any of them failed to act, despite knowledge of unconstitutional conduct
by their subordinates.

Therefore, the Court cannot reasonably infer the liability of any of the

Defendants, and Ndiaye has not stated an individual-capacity claim under ~ 1983 or Bivens. See
id.; Iqbal, 556 U.S. at 678-79.
Additionally, Plaintiff hinges his claims on Defendants' alleged discriminatory bias based
on his religion and national origin. See Am. CompI. 5. He has not alleged discriminatory bias
sufficiently because the Amended Complaint does not "allege[] [any] facts to support the claim
that [any Defendant] in fact held the hypothesized bias or said anything that indicated such a
bias."

See Hegab v. Long, 716 F.3d 790, 796 (4th Cir. 2013).

Thus, his ~ 1983 and Bivens

claims must be dismissed. See Iqbal, 556 U.S. at 678-79.

V.

CONCLUSION

In sum, for the reasons stated above, Defendants'

Motions to Dismiss Plaintiffs

Amended Complaint, ECF Nos. 44, 46 & 49, ARE GRANTED, and the Amended Complaint IS
dismissed. See Fed. R. Civ. P. 12(b)(6). The Clerk is directed to close t. is
So ordered.
Dated: September 4, 2014

lSI
Paul W. Grimm
United States District Judge

lyb

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