Horton v. Vistor's Control Center

Filing 16

ORDER granting 15 Motion to Dismiss. Signed by Honorable Timothy D. DeGiusti on 3/10/2017. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
JOHN D. HORTON,
Plaintiff,
v.
VISITOR’S CONTROL CENTER,
Defendant.

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Case No. CIV-16-1260-D

ORDER
This matter comes before the Court upon Defendant’s Motion to Dismiss [Doc.
No. 15], filed pursuant to Fed. R. Civ. P. 12(b)(1) and (6). Plaintiff has made no timely
response, and in the exercise of discretion under LCvR7.1(g), the Court deems the Motion
confessed. For this reason, and the reasons fully explained in Defendant’s supporting
brief, 1 the Court finds that the Motion should be granted. 2
The Complaint invokes subject matter jurisdiction under 28 U.S.C. § 1331, and
purports to bring an action under Bivens v. Six Unknown Named Agents, 403 U.S. 388
(1971). A Bivens action may only be brought against an individual agent of the federal
government who violates a constitutional right of the injured party. Plaintiff identifies the

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The Court commends Defendant’s counsel for a thorough and well-reasoned analysis of the issues.

Plaintiff has been granted leave to proceed in forma pauperis (IFP), without prepayment of fees
and costs, pursuant to 28 U.S.C. § 1915(a). As a preliminary matter, Defendant asks that Plaintiff’s IFP
status be revoked because he is an abusive litigant who frequently files frivolous cases and then fails to
pursue them. See Mot. Dismiss & Br. at 6-7 n.5 (listing 30 cases filed since 2000). Because Plaintiff is a
first-time filer in this district, and because this action is subject to dismissal pursuant to § 1915(e)(2)(B),
the Court declines to reach this issue. The Court reserves the right to revisit the issue, however, should
Plaintiff choose to file additional abusive cases in the future.

named defendant, “Visitor’s Control Center,” as a federal agency. See Compl. ¶ 3. He
also states the named defendant “refers to those police personnel who staff the Visitor’s
Control Center at Fort Sill, Oklahoma,” who “appear to be either civilian ‘Department of
Defense Police’ or their contract equivalent.” Id. ¶ 6. Either way, the Complaint contains
insufficient factual allegations to identify an individual subject to suit under Bivens. See
Mot. Dismiss & Br. at 9. Further, the constitutional rights allegedly violated were Fifth
Amendment rights of Plaintiff due to the “theft and unlawful conversion of private
property” in the taking of his passport, and due to an administrative adjudication that did
not satisfy “Due Process” requirements. See Compl. ¶¶ 10, 13. Neither claim is supported
by sufficient factual allegations to show a constitutional violation occurred. See Mot.
Dismiss & Br. at 10, 23-25.
Plaintiff also purports to assert claims for alleged violations of the Administrative
Procedures Act (APA), 5 U.S.C. § 500 et seq., and the Privacy Act, 5 U.S.C. § 552a.
Liberally construing Plaintiff’s pro se pleading, he might also be attempting to assert a tort
claim, which would be governed by the Federal Tort Claims Act (FTCA), 28 U.S.C.

§§ 1346, 2671 80. Absent exhaustion of administrative remedies, the Court cannot
exercise jurisdiction over an FTCA claim. See Mot. Dismiss & Br. at 10-11. Plaintiff lacks
standing to bring the APA claim asserted in the Complaint -- that Defendant failed to
publish its administrative rules in the Federal Register -- and this claim would be governed
by the Freedom of Information Act (FOIA), 5 U.S.C. § 552. See Mot. Dismiss & Br. at
11-13, 15-17. However, Plaintiff cannot pursue this claim under FOIA due to a lack of

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administrative exhaustion and a lack of authority to grant the relief sought. See Mot.
Dismiss & Br. at 13-18. Finally, the Complaint fails to state a plausible claim under the
Privacy Act. See Mot. Dismiss & Br. at 19-22.
IT IS THEREFORE ORDERED that Defendant’s Motion to Dismiss [Doc.
No. 156] is GRANTED, as set forth herein. This action is dismissed without prejudice for
lack of jurisdiction and failure to state a claim upon which relief can be granted. A separate
judgment of dismissal shall be entered.
IT IS SO ORDERED this 10th day of March, 2017.

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