LAMPON-PAZ v. DEPARTMENT OF JUSTICE et al

Filing 164

OPINION. Signed by Judge Kevin McNulty on 5/14/2019. (sms)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

MANUEL LAMPON-PAZ,

Civ. No. 16-907 1 (1CM) (JBC)

Plaintiff,
OPINION
V.

DEPARTMENT OF JUSTICE, UNKNOWN
DEFENDANTS, UNITED STATES OF
AMERICA, DEPARTMENT OF HOMELAND
SECURITY, STATE OF NEW JERSEY,
Defendants.

KEVIN MCNULTY, U.S.D.J.:
The pro se plaintiff, Manuel Lampon-Paz, is a frequent litigant in this
district.’ He brings this action against the United States Department of Justice,

A search of the electronic filing system reveals that Mr. Lampon-Paz has filed
nine prior actions in this court, all but one of them against federal agencies:
12-cv-04485-WJM-MF LAMPON-PAZ et al ic DEPT. OF HOMELAND SECURITY
13-cv-05757-WJM-MF LAMPON-PAZ v. DEPARTMENT OF HOMELAND SECURITY
I 5-cv-05594-KM-MAH LAMPON-PAZ u. 000 OLE INC.
1 5-cv-05835-KMJBC

LAMPON-PAZ v. OFFICE OF PERSONNEL MANAGEMENT

1 6-cv-05052-KM

LAMPON-PAZ v. COMMISSIONER OF SOCIAL SECURITY

1 6-cu-08650-KM-MAH LAMPON-PAZ v. OFFICE OF PERSONNEL MANAGEMENT
1 6-cv-0953 7-KM

LAMPON-PAZ a COMMISSIONER OF SOCIAL SECURITY

1 7-cv-02044-KM-MAH LAMPON-PAZ v. DEPARTMENT OF TREASURY
1 7-cu-6395 KMJBC

LAMPON-PAZ a DEPARTMENT OF JUSTICE

Two of these prior actions are highlighted in the discussion of resjudicata,
Section III.A, infra:

The first, 12cv4485, alleged that the government was retaliating against Mr.
Lampon-Paz for blowing the whistle on a terrorist plot. The means of retaliation

the State of New Jersey, and other related defendants. The most recent version
of the complaint is the Amended Complaint (DE 106), filed on August 14,
20132
Now before the court are motions by the United States (DE 130) and the
State of New Jersey (DE 136) to dismiss the Complaint for lack ofjurisdiction
and failure to state a claim. The allegations, although obviously deeply and
sincerely felt, fail to state a claim that can be addressed by this federal court.
The motions to dismiss are granted.
I.

Allegations and Procedural Background
The allegations of the Complaint may be summarized as follows.
The plaintiff, a former air marshal, alleges on behalf of himself and a

minor child, EDLP, that these governmental defendants created discord in his
relationships, coerced sexual acts, and engaged in physical abuse of the
plaintiffs. Mr. Lampon-Paz dated and later married CMLP, who was living in
the U.S. illegally at the time. The two concealed her illegal status and
concocted a false story, involving a trip back and forth to Colombia, so that she
could apply to live in the U.S. legally. The government allegedly attempted to
coerce sexual favors from CMLP. Mr. Lampon-Paz insists that he and CMLP
should be prosecuted for immigration fraud, but the government refuses to do
so. The couple unfortunately were divorced in 2016, and Mr. Lampon-Paz
attributes the divorce to the defendants’ actions.
I here summarize a sampling of the large number of incidents recited in
the Complaint:

allegedly included various mind control techniques and subliminal messages. Judge
Martini granted a motion to dismiss. See 2013 WL 2475859.
The second, 13cv5757, alleged that the government impaired Mr. Lampon-Paz’s
marriage and harmed him while he was sleeping. It also alleged that individuals had
harassed the son, EDLP. Judge Martini granted a motion to dismiss. See 2014 WL
252909.
The “Complaint” referred to herein is this document. There are two other
documents filed under the tile of “Amended Complaint” (DE 25, 41) which appear to
have been superseded.
2

2

• “jA]n unknown blonde female” told him to “be quiet about what we did to
your wife or we will take the passport evidence in the charity care case to
the prosecutor.” (Compl. at 6);
• “[A]n elderly gentleman told me to take back my filing or that I would
regret it at the U.S. Attorney’s Office” (Compl. at 7);
• “On two occasions, my tire has blown out and it had lost all but one lug
nut. These items happened while I was out visiting or at the gym.” (Compl.
at 7);
• “I have been punched in the face while walking home from a bar.” (Compl.
at 7);
• Plaintiffs house and car were broken into and he was “unable to wake up
and had my covers removed from my pelvis and a bruise on my buttocks,”
among other things. (Compl. at 7);
• Plaintiffs child, EDLP, “has awakened with the back door open and the
covers completely removed from his body while he was at my residence.”
(Compl. at 7);
• “An individual named Mr. 0. was left alone with EDLP in his kindergarten
class on several occasions” and that an individual in California “seemingly
removed EDLP’s pants while he was in detention and that this same
individual was in on a field trip with EDLP and took him in his car when
EDLP fell ill.” (Compl. at 7, 13, 15);
• Defendants “have used electronic surveillance unlawfully” to chat with him
through an internet poker site. (Compl. at 16).
• “[A] helicopter flew close, within 15 feet, of our house and used EDLP’s
first name.” (Compl. at 16).
II.

Applicable Standards
Rule 12(b)(1) governs jurisdictional challenges to a complaint. These may

be either facial or factual attacks. See 2 Moore’s Federal Practice

§

12.30[4J (3d

ed. 2007); Modensen v. First Fed. Sat’. & Loan Ass’n, 549 F.2d 884, 891 (3d
Cir. 1977).

3

A facial challenge asserts that the complaint does not allege sufficient
grounds to establish subject-matter jurisdiction. Lincoln Ben. Life Co. v. AEI
LVe, LLC, 800 F.3d 99, 105 (3d Cir. 2015); Iwanowa v. Ford Motor Co., 67 F.
Supp. 2d 424, 438 (D.N.J. 1999). It “review[s] only whether the allegations on
the face of the complaint, taken as true, allege facts sufficient to invoke the
jurisdiction of the district court.” Common Cause of Penn. v. Pennsylvania, 558
F.3d 249, 257 (3d Cir. 2009) (quoting Taliaferro v. Darby Twp. Zoning Bd., 458
F.3d 181, 188 (3d Cir. 2006)).
A factual attack, on the other hand, permits the Court to consider
evidence extrinsic to the pleadings. Gould Elecs. Inc. v. United States, 220 F.3d
169, 178 (3d Cir. 2000), holding modified on other grounds by Simon v. United
States, 341 F.3d 193 (3d Cir. 2003). Such a factual attack “does not provide
plaintiffs the procedural safeguards of Rule 12(b)(6), such as assuming the
truth of the plaintiffs allegations.” CNA v. United States, 535 F.3d 132, 144 (3d
Cir. 2008).
Under Fed. R. Civ. P. 12(b)(6), a defendant may move to dismiss the
complaint for failure to state a claim upon which relief may be granted. For
purposes of a motion to dismiss, the facts alleged in the complaint are accepted
as true and all reasonable inferences are drawn in favor of the plaintiff. New
Jersey Carpenters & the Trustees Thereof v. Tishman Const. Corp. of New
Jersey, 760 F.3d 297, 302 (3d Cir. 2014). Federal Rule of Procedure 8(a) does
not require that a complaint contain detailed factual allegations. Nevertheless,
“a plaintiffs obligation to provide the ‘grounds’ of his ‘entitlement to relief
requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Bell Ati. Corp. v. Twombly, 550 U.S.
544, 555 (2007). Thus, the complaint’s factual allegations must be sufficient to
raise a plaintiffs right to relief above a speculative level, so that a claim is
“plausible on its face.” Id. at 570.
The briefs and pleadings of a pro se litigant, such as Mr. Lampon-Paz
here, will be construed without strict regard to legal forms. See Niblack v.

4

Murray, No. CV12691OMASTJB, 2016 WL 4086775, at *1 n.1 (D.N.J. July 29,

2016) (citing Pratt v. Port Auth. of N. Y. & N.J., 563 F. App’x 132, 134 (3d Cir.
2014) (“[B]ecause [the plaintiff] is proceeding pro se, we will construe his brief
liberally.”); Marcinek u. Comm’r, 467 F. App’x 153, 154 (3d Cir. 2012) (holding
that courts are “under an obligation to liberally construe the submissions of a
pro se litigant”)). See generally Haines v. Kemer, 404 U.S. 519 (1972). I have
construed Lampon-Paz’s submissions in the liberal spirit of Haines.
Nevertheless, even “pro se litigants still must allege sufficient facts in their
complaints to support a claim.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239,
245 (3d Cir. 2013).
UI.

Motion to Dismiss of United States
A. Res Judicata

The United States moves to dismiss the Complaint on grounds of res
judicata, based on final decisions rendered by Judge Martini in two prior
actions brought by this plaintiff.3 Those prior decisions are No. 12-4485 (WJM),
2013 WL 2475859 (Lampon-Paz 1), and No. 13-5757 (WJM), 2014 WL 252909
(Lampon-Paz II). (Copies of those prior decisions are attached to the defendant’s

motion. (DE 130-3, 130-5). I cite to page numbers in the slip opinions.)
Because the res judicata doctrine is here invoked as between actions in
federal district court, federal standards apply:
Claim preclusion bars suit when three elements are present:
“(1) a final judgment on the merits in a prior suit involving (2) the
same parties or their privies and (3) a subsequent suit based on
the same cause of action.” Lubrizol Corp. u. Exxon Corp., 929 F.2d
960, 963 (3d Cir. 1991).

Resjudicata is an affirmative defense. See Fed. R. Civ. P. 8(c). Nevertheless, it
may be considered on a motion to dismiss if its applicability can be determined from
the face of the complaint and documents that are properly considered on a Rule
12(b)(6) motion. See Ross z’. Meyer, 741 F. App’x 56, 59—60, 2018 WL 3322260, at *3
(3d Cir. July 6, 2018) (citing Rycoline Prods., Inc. v. C & WUnlimited, 109 F.3d 883,
886 (3d Cir. 1997)).
3

5

Dawis z’. Wells Fargo, 824 F.3d 333, 34 1—42 (3d Cir. 2016). Those three
elements of res judicata are satisfied here.
1. Final judgment
Judge Martini’s decisions in Lampon-Paz land H were final judgments on
the merits. A dismissal for lack of jurisdiction under Fed. R. Civ. P. 12(b)(l),
because it .does not touch the merits, is presumptively without prejudice and
therefore not final. Siravo v. Crown, Cork & Seal Co., 256 F. App’x 577, 580—8 1
(3d Cir. 2007) (non-precedential) (citing In re Orthopedic “Bone Screw” Prods.
Liah. Litig., 132 F.3d 152, 155 (3d Cir. 1997)). A final dismissal for failure to
state a claim under Fed. R. Civ. P. 12(b)(6), however, constitutes a final
judgment. See Federated Dep’t Stores, Inc v. Moitie, 452 U.S. 394, 399 n,3
(1981).
In Lampon-Paz I, Judge Martini granted dismissal under both Rule
12(b)(1) and Rule 12(b)(6). Because Mr. Lampon-Paz had not exhausted
administrative remedies, his appeal from a decision of the Merit Systems
Protection Board (MPSB) was denied for lack of subject-matter jurisdiction. Id.
at 4. As to “Plaintiffs remaining claims,” however, Judge Martini granted
dismissal “because Plaintiff failed to state a claim upon which relief can be
granted.” Id. Because the plaintiff had previously amended his complaint once
and further amendment appeared futile, the dismissal was entered with
prejudice.
In Lampon-Paz II, Judge Martini sua sponte found a lack of subjectmatter jurisdiction and also granted a Rule 12(b)(6) motion to dismiss the
complaint for failure to state a claim. As to jurisdiction, Judge Martini cited
case law from other Circuits dismissing on jurisdictional grounds claims, like
those of the plaintiff, that the government was engaging in mind control or
sending subliminal messages. Id. at 9—10. Because the “Third Circuit has not
taken a stance” on that jurisdictional issue, however, Judge Martini went on to
hold that “[e]ven if the court had jurisdiction to entertain Plaintiffs claim, the
Complaint would still have to be dismissed on a variety of other procedural and

6

substantive grounds.” Id. at 10. The grounds cited included state sovereign
immunity, resjudicata (based on Lampon-Paz 1), and failure to state a plausible
claim under the standards of Twombly and Iqbal, supra. Id. at 10—12.
Both decisions, I find, were final judgments on the merits as to the
claims relevant here.
2. Same parties or privies
This case is brought by Mr. Lampon-Paz personally and on behalf of his
son, EDLP. The plaintiffs in Lampon-Paz land Lampon-Paz H were the same.
The identified federal defendants in this case are the United States, the
(U.S.) Department of Justice, and the Department of Homeland Security.4 The
federal defendants in Lampon-Paz land H were the Department of Homeland
Security, Department of Justice, and Social Security Administration, To the
extent the parties are not precisely identical, the distinctions are immaterial.
“[Fjederal agencies are in privity with the United States for purposes of res
judicata.

.

.

.“

Middleton v. United States Depf’t of Labor, 318 F. Supp. 3d 81,

87 (D.D.C. 2018); see also Mervin v. Fed’! Trade Comm’n, 591 F.2d 821, 830
(D.C. Cir. 1978).
Thus the second requirement, that the suits involve the same parties or
their privies, is met.
3. Same cause of action
The requirement that the earlier suit and the current one involve the
“same cause of action” requires some explication:
“[W]e take a broad view” of whether suits are based on the same
cause of action, and we focus on “the essential similarity of the
underlying events giving rise to the various legal claims.” Churchill
v. Star Enters., 183 F.3d 184, 194 (3d Cir. 1999) (quotation marks
omitted). Thus, even if a second suit alleges new or different
events, it is still based on the same cause of action if the new
allegations “seek[ ] recovery for essentially the same wrongful
The caption &so refers to “Unknown Defendants.” To the extent they may be
regarded as federal personnel, they are included in the motion to dismiss. The State of
New Jersey, also named as a defendant, is discussed below.
4

7

conduct” or a “single course of wrongful conduct.” Id. at 195. “The
fact that several new and discrete [actionablel events are alleged
does not compel a different result” because “[a] claim extinguished
by res judicata includes all rights of the plaintiff to remedies
against the defendant with respect to all or any part of the
transaction, or series of connected transactions, out of which the
action arose.” [citing Elkadrawy v. Vanguard Gip., Inc., 584 F.3d
169, 174 (3d Cir. 2009)] (quotation marks omitted).
Crimone v. McCabe Weisberg & Conway, P.C., 737 F. App’x 107, 109—10 (3d
Cir. 2018).
The “same cause of action” does not mean the “same legal theory.” Where
the necessary transactional connection is present, “res judicata bars not only
claims that were brought in the previous action, but also claims that could
have been brought.” Elkadrawy, 584 F.3d at 173 (citing Post v. Hartford Ins.
Co., 501 F.3d 154, 169 (3d Cir. 2007)); see also Davis, 824 F.3d at 342;
Lubrizol, 929 F.2d at 963.
Lampon-Paz land Lampon-Paz H involve allegations related or identical to
those asserted here. In Lampon-Paz I, the plaintiff alleged that he was a
whistleblower; that subliminal messaging had been used to control him and
harass him; that his son, EDLP, had been assaulted; that a medical procedure
may have been performed on him without his permission; that he was punched
in the face in Paterson, NJ; that another federal air marshal drugged him to
prevent him from informing on a steroids ring; that he was harassed because
he tried to warn the government of a terrorist attack in 2009; that an FBI agent
and someone using the name ramjam255 had harassed him online; and his
award of Social Security disability benefits had the downside of rendering him
ineligible to continue his career based on an adjustment disorder.
In Lampon-Paz H, he alleged that the federal defendants had caused
harm to his marriage and other relationships; that they had used means such
as electromagnetic waves and brain mapping; that the brain mapping induced
him to meet with an old girlfriend; that these electronic methods had physically
injured him in his sleep; that his son, too, had been exposed to these electronic
8

methods and ultrasonic messaging; and that the defendants had destroyed his
marriage by disclosing to each partner that the other had had an affair.
The allegations in this current action are identical or overlapping. In this
action, Mr. Lampon-Paz alleges that the government retaliated against him for
reporting a terrorist plot; that certain shadowy persons, “Chase” and “Mr. 0,”
have committed assaultive acts against EDLP; that the government has caused
him physical harm and/or influenced his thoughts and actions; that the
government’s actions interfered with his marriage; and so on.
The third requirement of res judicata, then, is met. Mr. Lampon-Paz is
barred from bringing in this action all claims that were brought, or could have
been brought, against the federal defendants in the prior actions.
Out of caution, however, I consider alternative grounds for dismissal
that have been raised by the United States.
B. Failure to Exhaust Under FTCA

Many of the claims may be considered tort claims against the United
States, which are governed by the Federal Tort Claims Act (“VItA”).5 As to
these, the court lacks jurisdiction because administrative remedies have not
been exhausted, and the deadlines to do so expired long ago.
“[Tjhe United States, as sovereign, is immune from suit save as it
consents to be sued” and “the terms of its consent to be sued in any court
define that court’s jurisdiction to entertain the suit.” United States v. Mitchell,
445 U.S. 535, 538 (1980). The F7CA is a limited waiver of that sovereign
immunity. Subject to a number of exceptions and conditions, it allows a
plaintiff to recover damages for “injury or loss of property

.

.

.

caused by the

negligent or wrongful act or omission of any employee of the Government while
acting within the scope of his office or employment.” 28 U.S.C.

§

1346(b);

As to such FICA claims, the only proper defendant is the United States itself.
As against federal agencies and others named as defendants, such claims are
routinely dismissed. See Priovolos u. FBI, 632 F. App’x 58, 60 (3d Cir. 2015); Martinez
v. U.S. Post Office, 875 F. Supp. 1067, 1074 (D.N.J. 1995) (dismissing VI’CA claims
against federal agency and federal employee).
5

9

2679(b)(1). One of those conditions is that a plaintiff may not bring suit against
the United States “unless [he] shall have first presented the claim to the
appropriate federal agency and his claim shall have been finally denied by the
agency in writing.” 28 U.S.C.

§ 2675(a). To qualify as a presentment, such a

written claim must be one that “(1) gives the agency written notice of [the] claim
sufficient to enable the agency to investigate and (2) places a value on [the]
claim.” Tucker v. U.S. Postal Service, 676 F.2d 954, 959 (3d Cir. 1982). The

§ 240 1(b). Failure
by the agency to act within six months will be deemed a denial. See 28 U.S.C. §

claim must be brought within two years of accrual. 28 U.S.C.

2675(a).
“Exhaustion of all administrative remedies under the FTCA ‘is
jurisdictional and cannot be waived.’ Bialowas v. US., 443 F.2d 1047, 1049 (3d
*3
Cir. 1971).” Dunn v. Samuels, No. CV 16-3558(RMB), 2016 WL 3621122, at
(D.N.J. July 6, 2016); accord Shelton v. Bledsoe, 775 F.3d 554, 569 (3d Cir.
2015). “Strict compliance with Section 2675(a) is required to establish subject
matter jurisdiction over an VFCA suit. See e.g., Livera v. First Nat’l State Bank
of N.J., 879 F.2d 1186, 1194 (3d Cir. 1989).” Hermann v. United States, No. 15-

6682 (RBK/AMD), 2016 WL 3512112, at *1 (D.N.J. June 27, 2016).
Because exhaustion of administrative remedies is a jurisdictional
prerequisite to suit, the relevant time for measuring exhaustion is the time of

filing the complaint. In McNeil v. United States, for example, the Court upheld
the dismissal of a pro se plaintiffs claim under the Vl’CA where the plaintiff
had filed a claim for administrative relief, but only after filing suit. 508 U.S.
106, 111—12 (1993). Nor, in such a case, can jurisdiction be restored by
subsequent administrative action and the filing of a post-exhaustion amended
complaint. Hoffenherg v. Provost, 154 F. App’x 307, 310 (3d Cir. 2005).
Mr. Lampon-Paz, using Form SF-95, filed an administrative tort claim
with the Department of Justice on November 20, 2016. (See Declaration of

Some five days earlier, this Court had filed an opinion in another of Mr.
Lampon-Paz’s cases describing the exhaustion requirement much as I have described

6

10

Elijah Jenkins

¶

3 & Ex. A (DE 130-6).) Attached was what appears to be a

version of the federal court complaint later filed in this action, with the
notation “Please read attached complaint. It has not been filed in court.” (DE
130-6 at 5) Eighteen days later, with no administrative action having been
taken, Mr. Lampon-Paz filed the Complaint in this action. (DE 1)
For this jurisdictional reason, too, the tort claims in the Complaint
must be dismissed. Because amendment would not cure the jurisdictional
defect as a matter of law, leave to further amend the Complaint would be
futile.

C. Constitutional/Btvens claims
The Complaint purports to state claims against the federal
defendants under the Fifth, Eighth, and Fourteenth Amendments to the
U.S. Constitution. The vehicle for such a claim can only be a Bivens
action. See Thuens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388,
390 (1971). As against the federal government and its agencies, there is no
viable claim because the United States has not waived its sovereign
immunity. See FDIC v. Meyer, 510 U.S. 471, 485—86 (1994); United States
v. Testan, 424 U.S. 392, 400—02 (1976).8

it here and granting a motion to dismiss. Lampon-Paz v. Office of Personnel
Management, Civ. No. 15-5835, DE 40 (Nov. 15, 2016).
7
The Amended Complaint (DE 106) was filed in August 2018. As noted above,
this filing would not cure the lack of subject-matter jurisdiction. See Hoffenberg,
supra. In his responses, Mr. Lampon-Paz notes that the exhaustion requirement may
be satisfied by means other than the submission of a Form SF-95. (DE 142-1 at 5,
143-2 at 6—7) But he did submit a Form SF-95, and he does not point to any other
written submission or administrative decision that would satisfy the exhaustion
requirement.
That leaves the “Unknown Defendants,” who might be individuals, as opposed
to government agencies. The Bivens case itself, of course, permitted an action to
proceed against unknown agents of the Bureau of Narcotics (a federal predecessor of
the DEA). There, however, the plaintiff was searched by acknowledged federal agents,
arrested and taken to federal court; it seems that he simply did not know the names of
the agents. Mr. Lampon-Paz’s Complaint, by contrast, contains insufficient factual
matter to permit a plausible inference that many of the unidentified persons (such as
II

D. Legal Insufficiency of Claims

Remaining non-constitutional claims in the Complaint are also legally
insufficient.
The allegation that the government injured Mr. Lampon-Paz by failing to
prosecute him or his ex-wife for immigration fraud states no legal cause of
action. “[T]he executive branch ‘has exclusive authority and absolute discretion
to decide whether to prosecute a case.”’ Stolt—Nielsen, S.A. z’. United States, 442
F.3d 177, 183 (3d Cir. 2006) (quoting United States v. Nixon, 418 U.S. 683,
693, 94 S. Ct. 3090 (1974)). “And it is well established ‘that an agency’s
decision not to prosecute or enforce, whether through civil or criminal process,
is a decision generally committed to an agency’s absolute discretion. This
recognition of the existence of discretion is attributable in no small part to the
general unsuitability for judicial review of agency decisions to refuse
enforcement.”’ Soobzokou v. Attorney Gen. of U.S., 515 F. Appx gg, 101 (3d Cir.
2013) (quoting Heckler v. Chaney, 470 U.S. 821, 831, 105 5. Ct. 1649 (1985)
(internal citations omitted)). No recognized cause of action is invoked.9
The plaintiff cites 50 U.S.C.

§ 1810, the civil liability section of the

Foreign Intelligence Surveillance Act. That section, however, does not waive
sovereign immunity as against the United States, see Al-Haramain Islamic
Found., Inc. a Obama, 705 F.3d 845, 854 (9th Cir. 2012), and at any rate
would require compliance with the exhaustion requirements of the VfCA (see
Section III.B, supra). Moreover, civil liability must be premised on a prior
criminal conviction under the Act, not present here. Id. The plaintiff

the helicopter pilot, mugger, or “Mr. 0”), were government agents at all. As to those
potential individual defendants, the Complaint fails to state a claim.
“Of course, a prosecutor’s discretion is ‘subject to constitutional constraints.’”
United States u. Armstrong, 517 U.S. 456, 464, 116 S. Ct. 1480, 1486 (1996) (quoting
United States u. Batchelder, 442 U.S. 114, 125,99 S. Ct. 2198, 2204—2205 (1979)). It
cannot be exercised, for example, on the basis of race. However, Plaintiff does not
allege, let alone demonstrate, the violation of any constitutional constraint here in the
exercise of prosecutorial discretion not to charge him.
12

acknowledges that this is the “wrong statute.” (DE 142-1 at 17, DE 143-2 at
18)10

§ 2242, 2243, 2244. Those are criminal

The plaintiff cites 18 U.S.C.

statutes relating to sexual abuse. They do not create a private right of action.
See Jordan v. Cicchi, No. 08-6088 (AET), 2010 WL 848809, at *12 (D.N.J. Mar.
9, 2010) (the “sexual abuse statutes at 18 U.S.C.

§ 2241, 2242, 2244, are

criminal statutes and do not give rise to any private right of action”), affd in
part, vacated in part on other grounds, 428 F. App’x 195 (3d Cir. 2011).
These allegations legally fail to state a claim against the United States.
a Twomblyflqbal Factual Pleading Standards
A claim is plausible when it contains “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 678 (citing Twombly, 550 U.S. at 570).
Under these standards, see section Il, supra, the Complaint at times fails to
state a viable legal theory, and at times fails to plausibly allege facts to suggest
that the government might be connected to the events alleged.
The Complaint alleges, for example, that Mr. Lampon-Paz was punched
while walking home from a bar; that he had a flat tire; that there was a breakin at his home; that “Mr. 0” was left alone with EDLP at school; that a
helicopter buzzed his home; and that he is being surveilled through an online
poker website. The allegations are generally vague as to names, dates, places,
and the like. More fundamentally, however, they make no plausible factual link
to anything the government did or did not do.
These allegations factually fail to state a claim against the United States.
*

*

*

He says that he meant instead to assert a claim based on the government’s
failure to investigate wrongdoing. Such a claim would be barred by the discretionar
function exception to the VItA. See Pooler v. United States, 787 F.2d 868, 871—72 (3d
Cir. 1986) (“Congress did not intend to provide for judicial review of the quality of
investigative efforts”). See also preceding paragraph in text regarding failure to
prosecute immigration fraud.
10

13

For all of the foregoing reasons, the motion of the United States to
dismiss the Complaint is granted.
Motion to Dismiss of State of New Jersey

IV.

The State of New Jersey, too, moves to dismiss the Complaint for lack of
subject-matter jurisdiction and failure to state a claim. The jurisdictional
argument is based on the State’s Eleventh Amendment immunity from a suit
for damages; the closely-related statutory argument is that the State is not a
“person” for purposes of 42 U.S.C.

§ 1983.

The State was added as a defendant in 2018, in connection with the
filing of the Complaint in its current, amended form. It is not entirely clear
which allegations of the Complaint are specifically directed to the State. It
appears, however, that they center around the State’s alleged “[1]ailure to
properly fulfill their duties” in connection with complaints of child abuse.
(Compl.

¶1J 8—10) The claims

are alleged to arise under the Fifth, Eighth, and

Fourteenth Amendments to the U.S. Constitution. Although no particular
cause of action is identified, I interpret these as Constitutional claims pursuant
to 42 U.S.C.

§ 1983. The relief sought consists of damages totaling

$11,160,000. (Compl. p. 20, Demand)
The Eleventh Amendment to the U.S. Constitution, which is of
jurisdictional stature, renders the states immune from certain claims: “The
Judicial power of the United States shall not be construed to extend to any suit
in law or equity, commenced or prosecuted against one of the United States by
Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S.
Const. Amend. XI. For more than a century, the Eleventh Amendment has been
held to incorporate a more general principle of sovereign immunity. In general,
it bars citizens from bringing suits for damages against any state in federal
court. Pennhurst State School & Hasp. v. Halderman, 465 U.S. 89, 100—101
(1984); Kelley ii. Edison Twp., No. 03-4817, 2006 WL 1084217, at *6 (D.N.J.
Apr. 25, 2006) (citing Bennett v. City of AU. City, 288 F. Supp. 2d 675, 679
(D.N.J. 2003)); see also Seminole Tribe of Florida u. Florida, 517 U.S. 44, 54
14

(1996); Edelman v. Jordan, 415 U.S. 651, 662—63 (1974); Hans u. Louisiana,
134 U.S. 1(1890).
Also applicable is the statutory principle that a State is not a “person”
amenable to suit under 42 U.S.C.

§ 1983. Will a Michigan Dep’t of State Police,

491 U.S. 58, 67—70 (1989). That doctrine, closely parallel to that under the
Eleventh Amendment, also bars section 1983 suits for damages against
“governmental entities that are considered ‘arms of the state’ for Eleventh
Amendment purposes,” which are “no different from a suit against the State
itself.” Id. at 70—7 1; Howlett v. Rose, 496 U.S. 356, 365 (1990).”
This is a section 1983 suit for damages against the State or its
departments. It is jurisdictionally barred by the Eleventh Amendment, and it
fails to state a claim against a “person” within the meaning of section 1983.
The State’s motion to dismiss is therefore granted.
V.

Request to Amend/Dismissal With Prejudice
The remaining question is whether to dismiss the Complaint with or

without prejudice. The plaintiff proffers that he should be permitted to amend
his Complaint again. Because amendment would be futile, I deny leave and
enter this dismissal with prejudice. See Alston v. Parker, 363 F.3d 229, 235 (3d
Cir. 2004) (on Rule 12(b)(6) dismissal, curative amendment should be
permitted “unless an amendment would be inequitable or futile”); Massarsky a
Gen. Motors Corp., 706 F.2d 111, 125 (3d Cir. 1983) (futility as grounds to deny
motion to amend, generally).
To begin with, the plaintiff has had ample opportunity to assert his
claims. In this action, he has already been given one opportunity to amend.
Indeed, the chief basis for dismissal is res judicata, based on the dismissal of
these claims in prior lawsuits. Res judicata forecloses claims that were or could
have been brought in the prior actions. See Section III.A, supra.
State officials, sued in their official capacities, are likewise not “persons” subject
damages suit under section 1983, although they may be subject to a claim for
to a
injunctive relieL Will, 491 U.S. at 71 n.10; Kentucky a Graham, 473 U.S. 159, 167
n.14 (1985).
II

J5

In a supplemental submission, Mr. Lampon-Paz asks to amend his
Complaint further to add additional information and claims. (DE 145)
First, he includes “photos of [his] feet and ankles as well as items of
clothing (socks) that show a blueish green blood discoloration.” (DE 145 at 4).
These are said to relate to the government’s use of chemicals or microwaves.
This information does not suggest a plausible claim for relief that could be
asserted in a further amended complaint.
Second, he states that the State or local authorities failed to preserve
records of past interactions with himself or EDLP. That in itself is not a basis
for a federal claim. It also falls within the res judicata bar.
Third, the failure to investigate “ramjam2255,” an internet stalker, or
allegations of sexual assault fails to add anything substantive to the discussion
above, and in any event falls within the res judicata bar.
Fourth, the request to add a claim under 42 U.S.C.

§

1983 is redundant.

As to the State, I have already interpreted the constitutional claims as
claims. As to the federal government,

§

§

1983

1983 does not apply; the only available

Constitutional remedy is a Bivens action, already discussed.
Fifth, OPM will not be added as a defendant. The plaintiff has already
asserted his claims against OPM in other actions. See n. 1, supra.
CONCLUSION

For the reasons set forth above, the motion of the United States and
related defendants (DE 130) and motion of the State of New Jersey (DE 136) to
dismiss the Amended Complaint (DE 106) are granted, with prejudice. An
appropriate Order follows.

)
KEVIN MCNULTY
United States District Judge

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