Curtis v. Federal Bureau of Investigation et al

Filing 8

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that plaintiffs motion to proceed in forma pauperis (Docket No. 3 ) is GRANTED. IT IS FURTHER ORDERED that plaintiff must pay an initial filing fee of $40.00 within thirty (30) days of the date of t his Order. Plaintiff is instructed to make his remittance payable to Clerk, United States District Court, and to include upon it: (1) his name; (2) his prison registration number; (3) this case number; and (4) the statement that the remittance is for an original proceeding. IT IS FURTHER ORDERED that the complaint is DISMISSED without prejudice. A separate order of dismissal will be entered herewith. IT IS FURTHER ORDERED that plaintiffs motion to appoint counsel (Docket No. 2 ) is DENIED as moot. IT IS HEREBY CERTIFIED that an appeal from this dismissal would not be taken in good faith. Signed by District Judge Jean C. Hamilton on 5/30/18. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DUSTIN PATRICK CURTIS,

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Plaintiff,
v.
FEDERAL BUREAU OF
INVESTIGATION, et al.,
Defendants.

No. 4:18-cv-237-JCH

MEMORANDUM AND ORDER
This matter is before the Court on the motion of plaintiff Dustin Patrick Curtis, a
prisoner, for leave to commence this civil action without prepayment of the required filing fee.
The Court will grant the motion, and assess an initial partial filing fee of $40.00. See 28 U.S.C.
§ 1915(b)(1). In addition, for the reasons discussed below, the Court will dismiss this case.
28 U.S.C. § 1915(b)(1)
Pursuant to 28 U.S.C. § 1915(b)(1), a prisoner bringing a civil action in forma pauperis
is required to pay the full amount of the filing fee. If the prisoner has insufficient funds in his
prison account to pay the entire fee, the Court must assess and, when funds exist, collect an
initial partial filing fee of 20 percent of the greater of (1) the average monthly deposits in the
prisoner’s account, or (2) the average monthly balance in the prisoner’s account for the prior sixmonth period. After payment of the initial partial filing fee, the prisoner is required to make
monthly payments of 20 percent of the preceding month’s income credited to the prisoner’s
account. 28 U.S.C. § 1915(b)(2). The agency having custody of the prisoner will forward these
monthly payments to the Clerk of Court each time the amount in the prisoner’s account exceeds
$10.00, until the filing fee is fully paid. Id.

In support of the instant motion, plaintiff submitted an inmate account statement for the
months of January and February, showing an average monthly deposit of $200.00 and an average
monthly balance of $112.59. The Court will therefore assess an initial partial filing fee of
$40.00, which is twenty percent of plaintiff’s average monthly deposit.
Legal Standard on Initial Review
Under 28 U.S.C. § 1915(e)(2), the Court is required to dismiss a complaint filed in forma
pauperis if it is frivolous, malicious, fails to state a claim upon which relief can be granted, or
seeks monetary relief from a defendant who is immune from such relief. An action is frivolous if
it “lacks an arguable basis in either law or fact.” Neitzke v. Williams, 490 U.S. 319, 328 (1989).
An action is factually frivolous if the facts alleged are “clearly baseless.” Denton v. Hernandez,
504 U.S. 25, 32-33 (1992). Allegations are clearly baseless if they are “fanciful,” “delusional,”
or “fantastic.” Id.
When reviewing a pro se complaint under § 1915(e)(2), the Court must give it the benefit
of a liberal construction. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, even pro se
complaints are required to allege facts which, if true, state a claim for relief as a matter of law.
Martin v. Aubuchon, 623 F.2d 1282, 1286 (8th Cir. 1980).

The Complaint
Plaintiff is a pretrial detainee at the St. Charles County Justice Center. He brings this
action pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403
U.S. 388 (1971), 42 U.S.C. § 1983, the Privacy Act, the Freedom of Information Act, the Stored
Communications Act, the Federal Wiretapping Act, the Administrative Procedures Act, and state
tort law against the following defendants: the Federal Bureau of Investigation, “Unknown FBI

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Agents,” the United States of America, the Drug Enforcement Agency, the Bureau of Alcohol,
Tobacco, Firearms and Explosives, and “Unknown IL Police.”
Review of the State of Missouri’s online docketing system shows that plaintiff is a
defendant in a criminal case currently pending in the circuit court for St. Charles County, where
he is facing charges of kidnapping, rape or attempted rape, domestic assault, and unlawful use of
a weapon. See State v. Dustin Patrick Curtis, Case No. 1811-CR00257-01 (11th Jud. Cir. 2018).
All of plaintiff’s claims for relief stem from a bizarre series of events that began in 2016
and continued until he was arrested on January 20, 2018. Plaintiff’s allegations are as follows.
In June or July of 2016, plaintiff noticed that a brown SUV was parked behind his house
every day. Then, other vehicles began following him everywhere he went, including to the mall,
to visit family and friends, and to church. Plaintiff came to realize that he was being constantly
surveilled by FBI agents. On different occasions, plaintiff confronted the agents or snuck up on
them, but they would never give him any information. One day, plaintiff went to the “local
police” to ask them why the FBI was following him, and “they looked my name up in some sort
of shared law enforcement database, and then told me, ‘there’s nothing we can do, Mr. Curtis.
It’s not us, trust me. This ‘thing’ is bigger than us, and it’s out of our hands.’” (Docket No. 1 at
5-6).
Around September or October of 2016, the FBI also began intercepting plaintiff’s
telephone calls, placing “electronic bugs” in his home, and placing GPS tracking devices on his
vehicles. Id. at 6. Plaintiff used his phone to photograph the FBI agents as they followed him,
but when he went to review the photos at the end of the day, they had all been mysteriously
deleted from his phone.

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A woman who worked as a secretary for plaintiff’s business began bringing drugs to
plaintiff’s house, even though plaintiff himself had stopped using drugs. One day, plaintiff asked
this woman to drive him somewhere. When he looked up, he “noticed a helicopter flying back
and forth over my home, several vehicles in the back of my home with FBI agents sitting in
them, and a man walking 2 dogs, acting suspiciously, in front of my home, and a Charter
Communications van sitting idle in front of my home.” Id. at 6. On the way to his destination,
he asked the woman to turn around and go back to his house. When they got there, he kicked her
out of the van and told her she was fired. Plaintiff then searched his van and found a “large
quantity of marijuana” inside. Id. He “took pictures of it and videotaped it” but “those pictures
were mysteriously deleted from my phone also.” (Docket No. 1 at 6). Plaintiff destroyed the
marijuana, but before he did so he “noticed that it was the type of marijuana that law
enforcement uses to set people up.” Id. Plaintiff then went inside his house and locked himself
in.

The helicopter continued to fly back and forth over his house, and the Charter

Communications van was still sitting outside, with an FBI agent in the driver’s seat.
Plaintiff began using drugs again because of the FBI’s constant surveillance. He writes:
“One night, high on drugs, stressed out because of what was going on, I decided to drive around
town.” Id. Numerous SUVs began following him. Plaintiff drove into Illinois, and was pulled
over by local police. This was done because the FBI called them and requested their assistance.
As soon as he was pulled over, “numerous black SUVs filled with FBI agents surrounded my
vehicle.” Id. at 7. A “black officer” pulled plaintiff from his car and assaulted him and a “white
cop” did not try to stop him. (Docket No. 1 at 7). The FBI agents remained in their vehicles.
Unknown officers searched his vehicle, planted a GPS tracking device inside, and left the scene.

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Plaintiff went to Puerto Rico, hoping the FBI would leave him alone. However, he
noticed he was being followed by someone in a Jeep. While plaintiff was at the beach, FBI
agents searched his hotel room, and installed approximately 18 bugs.
One day, plaintiff was driving to the airport and noticed the same Jeep that had been
following him, and a “Puerto Rican individual, presumably an FBI agent, looking at me with
binoculars.” Id. at 8. Plaintiff followed this person “to some security office at the airport,” but
he did not come out of the office. Id. Plaintiff waited for hours and talked to many local
officers, but no one would tell him anything. Plaintiff was ultimately questioned by a DEA
agent, but learned nothing about the FBI’s surveillance operation.
Plaintiff remained in Puerto Rico for another three months, during which time he visited
different islands. Unmanned drones followed plaintiff everywhere he went. The FBI also
followed him everywhere, and intercepted his telephone conversations.
Plaintiff later went to Miami, and the FBI followed him. Plaintiff returned to Missouri
and ended up serving 90 days in jail. After he was released he went to Nebraska, and the FBI
followed him. Plaintiff returned to Missouri and continued to use drugs because he was stressed
out. One day, all of his work vehicles shut down at once because the FBI had installed “kill
switches” on them. Id.
Discussion
As noted above, an action is frivolous, and subject to summary dismissal pursuant to §
1915(e), if the allegations therein are clearly baseless. Denton, 504 U.S. at 32-33. In this case,
all of plaintiff’s claims are based upon the bizarre series of events described above, which
include being constantly monitored by the FBI, stalked and harassed by federal agents in
different states within the United States and in Puerto Rico, being monitored by helicopters and

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unmanned drones, being monitored by devices planted in his home, hotel room, and vehicles,
having pictures that may substantiate his claims mysteriously deleted from his phone, and so
forth. In addition, plaintiff alleges this was all done as part of a government conspiracy against
him. The Court has considered the complaint as a whole and has given it the benefit of a liberal
construction, and finds the factual allegations to be delusional and fantastic, and therefore clearly
baseless. See id. The Court therefore concludes that this action is factually frivolous, and will
dismiss it as such. See 28 U.S.C. § 1915(e)(2)(B)(i); see also Tooley v. Naplitano, 586 F.3d
1006, 1009–10 (D.C. Cir. 2009) (claims of constant surveillance by government were “flimsier
than doubtful or questionable ... essentially fictitious); Strong v. United States, 2012 WL 202780
(S.D. Cal. Jan.23, 2012) (Plaintiff’s claim that, inter alia, he was being surveilled by unmanned
drones was dismissed as frivolous); Raiford v. FBI, 2010 WL 6737887 (D. S.C. Nov.17, 2010)
(claims of stalking by aircraft were frivolous); Marshall v. Green, 2010 WL 1959514 (W.D. Ky.
May 17, 2010) (claims of “bizarre conspiracy theories” related to government stalking were
frivolous).
Even if the allegations in the complaint were non-frivolous, plaintiff’s claims against
“Unknown FBI Agents” and “Unknown IL Police” would be subject to dismissal. Generally,
fictitious parties may not be named as defendants in a civil action. Phelps v. United States, 15
F.3d 735, 739 (8th Cir. 1994). An action may proceed against a party whose name is unknown,
however, if the complaint makes sufficiently specific allegations to permit identification of the
party after reasonable discovery. Munz v. Parr, 758 F.2d 1254, 1257 (8th Cir. 1985). In this
case, plaintiff’s allegations regarding the fictitious defendants are not sufficiently specific to
permit them to be identified after reasonable discovery, and the fictitious defendants are both
unidentified and indeterminate in number. This is impermissible. See Estate of Rosenberg v.

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Crandell, 56 F.3d 35, 37 (8th Cir. 1995) (suit naming “various other John Does to be named
when identified” not permissible). Finally, plaintiff cites multiple federal statutes and states he
brings claims against the United States and the federal agency defendants pursuant thereto.
However, he sets forth only conclusory allegations that merely parrot the elements of the claims.
He therefore fails to state a claim upon which relief may be granted against the United States or
any of the federal agency defendants.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma pauperis
(Docket No. 3) is GRANTED.
IT IS FURTHER ORDERED that plaintiff must pay an initial filing fee of $40.00
within thirty (30) days of the date of this Order. Plaintiff is instructed to make his remittance
payable to “Clerk, United States District Court,” and to include upon it: (1) his name; (2) his
prison registration number; (3) this case number; and (4) the statement that the remittance is for
an original proceeding.
IT IS FURTHER ORDERED that the complaint is DISMISSED without prejudice. A
separate order of dismissal will be entered herewith.
IT IS FURTHER ORDERED that plaintiff’s motion to appoint counsel (Docket No. 2)
is DENIED as moot.
IT IS HEREBY CERTIFIED that an appeal from this dismissal would not be taken in
good faith.
Dated this 30th day of May, 2018.

/s/ Jean C. Hamilton
JEAN C. HAMILTON
UNITED STATES DISTRICT JUDGE
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