Phillips v. United State of America et al
Filing
6
MEMORANDUM OPINION OF THE COURT. Signed by District Judge William L. Campbell, Jr on 8/19/2020. (xc:Pro se party by regular mail. ) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(am)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
COLUMBIA DIVISION
HOLLY C. PHILLIPS,
Plaintiff,
v.
UNITED STATES OF AMERICA FBI,
DR. PHIL MCGRAW, CHRIS
CHILDERS, AMANDA SMITH, and
JOSH RITTER,
Defendants.
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NO. 1:20-cv-00033 1
JUDGE CAMPBELL
MAGISTRATE JUDGE HOLMES
MEMORANDUM
Holly C. Phillips, a resident of Lewisburg, Tennessee, has filed a pro se, in forma pauperis
complaint under 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of the Federal Bureau
of Narcotics, 403 U.S. 388 (1971) (hereinafter “Bivens”), against the “United States of America
FBI,” Dr. Phil McGraw, Chris Childers, Amanda Smith, and Josh Ritter. (Doc. No. 1).
I. SCREENING STANDARD
Because Plaintiff is proceeding as a pauper in this action, the Court must conduct an initial
review of the complaint under 28 U.S.C. § 1915(e)(2) and dismiss it or any portion of it that is
frivolous or malicious, fails to state a claim for which relief may be granted, or seeks monetary
relief from a defendant who is immune from such relief. In assessing whether the complaint states
a claim on which relief may be granted, the Court applies the standards under Rule 12(b)(6) of the
Federal Rules of Civil Procedure, as construed by Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009),
1
This case was opened as No. 3:20-cv-00452 in the Nashville Division of the United States District
Court for the Middle District of Tennessee and, by Order entered on June 9, 2020, was transferred to the
Columbia Division of the United States District Court for the Middle District of Tennessee. (Doc. No. 3).
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and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). See Hill v. Lappin, 630 F.3d
468, 470-71 (6th Cir. 2010) (holding that “the dismissal standard articulated in Iqbal and Twombly
governs dismissals for failure to state a claim under § 1915(e)(2)(B)(ii) because the relevant
statutory language tracks the language in Rule 12(b)(6)”).
“Pro se complaints are to be held to less stringent standards than formal pleadings drafted
by lawyers, and should therefore be liberally construed.” Williams v. Curtin, 631 F.3d 380, 383
(6th Cir. 2011) (internal quotation marks and citation omitted). Pro se litigants, however, are not
exempt from the requirements of the Federal Rules of Civil Procedure. Wells v. Brown, 891 F.2d
591, 594 (6th Cir. 1989); see also Brown v. Matauszak, 415 F. App’x 608, 613 (6th Cir. 2011)
(“[A] court cannot create a claim which [a plaintiff] has not spelled out in his pleading”) (internal
quotation marks and citation omitted); Payne v. Sec’y of Treas., 73 F. App’x 836, 837 (6th Cir.
2003) (affirming sua sponte dismissal of complaint pursuant to Fed. R. Civ. P. 8(a)(2) and stating,
“[n]either this court nor the district court is required to create Payne’s claim for her”).
II. SECTION 1983 AND BIVENS STANDARDS
Plaintiff seeks relief pursuant to 42 U.S.C. § 1983 and Bivens. (Doc. No. 1 at 1). To state
a claim under Section 1983, a plaintiff must allege and show: (1) that she was deprived of a right
secured by the Constitution or laws of the United States; and (2) that the deprivation was caused
by a person acting under color of state law. Parratt v. Taylor, 451 U.S. 527, 535 (1981) (overruled
in part by Daniels v. Williams, 474 U.S. 327, 330 (1986)); Flagg Bros. v. Brooks, 436 U.S. 149,
155-56 (1978); Black v. Barberton Citizens Hosp., 134 F.3d 1265, 1267 (6th Cir. 1998). Both parts
of this two-part test must be satisfied to support a claim under Section 1983. See Christy v.
Randlett, 932 F.2d 502, 504 (6th Cir. 1991).
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In Bivens, the United States Supreme Court created a private right of action for damages
against officials acting under color of federal law when they are alleged to have violated a citizen's
constitutional rights. 403 U.S. at 389. “Such claims are the counterpart to suits under
42 U.S.C. § 1983 against state officials who infringe plaintiffs' federal constitutional or statutory
rights.” Vector Research, Inc. v. Howard & Howard Attorneys, P.C., 76 F.3d 692, 698 (1996).
III. ALLEGED FACTS
The complaint alleges that, for the past eighteen years, the Lewisburg Police Department
has planted “illegal bugs/wires” in Plaintiff’s “home, car, or rental.” (Doc. No. 1 at 4). Plaintiff
believes that “[t]here have been subliminal messages directed towards” her through “Twilight,
Meet the O’Reilys, Speak, Wayward Pines, Blindspot, The Hunger Games, and Suicide Squad.”
(Id.) These messages cause “ringing and popping in [her] ears with room spinning headaches.”
(Id.) In addition, Plaintiff states that she is being “held in captivity with small ropes against her
will and life pathways.” (Id. at 5). She further states that she is “being gambled by authority” and
used in “sex and human trafficking.” (Id.) According to Plaintiff, she has a “dead 3rd trimester
infant inside of [her] body due to authority giving background information.” (Id.) The complaint
does not identify who is responsible for these alleged acts.
As relief, Plaintiff seeks damages “to stabilize medicine, emotional state, and
independence,” a new driver’s license, passport, a “Federal agreement or understanding,” and “13 months of hired personnel for reentering society.” (Id.) She also seeks “blood work on potassium
def. used to give brain damage illuminating access to potassium and magnesium.” (Id.)
IV. SCREENING OF THE COMPLAINT
The complaint names as Defendants the “United States of America FBI,” Chris Childers,
Amanda Smith, Josh Ritter, and Dr. Phil McGraw.
A. Defendant “United States FBI”
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First, the complaint names “the United States FBI” as a Defendant. “‘It is axiomatic that
the United States may not be sued without its consent and that the existence of consent is a
prerequisite for jurisdiction.’” Munaco v. United States, 522 F.3d 651, 652-53 (6th Cir. 2008)
(quoting United States v. Mitchell, 463 U.S. 206, 212 (1983)). The United States can be sued only
to the extent it has waived its sovereign immunity. McGinness v. United States, 90 F.3d 143, 145
(6th Cir. 1996).
“A waiver of the Federal Government's sovereign immunity must be
unequivocally expressed in statutory text and will not be implied. Moreover, a waiver of the
Government's sovereign immunity will be strictly construed, in terms of its scope, in favor of the
sovereign.” Lane v. Pena, 518 U.S. 187, 192 (1996) (internal citations omitted). The United States
has not waived sovereign immunity as to damages claims for constitutional violations and,
therefore, cannot be sued for monetary damages in this action. See Coe v. United States, No. 163006-STA-egb, 2018 WL 4374219, at *2 (W.D. Tenn. Sept. 13, 2018) (construing prisoner’s
claims against the United States brought under Section 1983 as Bivens claims and dismissing
claims due to sovereign immunity) (citing Berger v. Pierce, 933 F.2d 393, 397 (6th Cir. 1991)
(stating that a Bivens claim cannot be asserted against the United States government or its
employees in their official capacities)).
In any event, the complaint clearly attributes the alleged illegal wiretapping and “bugging”
to the Lewisburg Police Department, not the FBI. 2 The complaint does not explain what role the
United States and/or FBI has played or is playing in the allegations of the complaint. The Court
2
The complaint does not name the Lewisburg Police Department as a Defendant to this action. In a previous case filed
by Plaintiff, she sued the Lewisburg Police Department for its alleged illegal wiretapping and surveillance, among
other allegations. See Holly C. Phillips v. Lewisburg Police Dep’t, et al., No. 1:20-cv-00020 (Campbell, J.). The Court
dismissed that case, finding that Plaintiff failed to state claims upon which relief can be granted under Section 1983
against the Lewisburg Police Department. (Id., Docs. No. 7 and 8).
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therefore finds that the complaint fails to state claims under Section 1983 and Bivens against
Defendant “United States FBI.”
B. Defendants Ritter, Childers, and Smith
With respect to Josh Ritter, Plaintiff lists his name only in the caption on page one of the
complaint. (Doc. No. 1 at 1). Ritter is not listed under the “Defendants” section or in the narrative
of the complaint.
The complaint does not identify Chris Childers’s job or his specific role in the events
alleged. In the section of the complaint where Plaintiff identifies Childers as a Defendant, Plaintiff
notes in the margin: “(Rights not to be stalked, trafficked, mutilated to stop, excessive force, right
to stop environment and med[)].” (Id. at 3). However, Childers is not mentioned in the narrative
of the complaint, and Plaintiff does not allege that he stalked, trafficked, mutilated, medicated her,
or used excessive force against her. Neither does the complaint allege that Childers is or was
employed as an officer of the Lewisburg Police Department, or is or was acting as an agent of the
FBI or United States. The complaint indicates only that he resides in Lancaster, Pennsylvania. (Id.
at 3).
As for Amanda Smith, the complaint does not allege where she resides, what her job is, or
what her role was in the events alleged in the complaint. (Id.) In the section of the complaint where
Plaintiff identifies Smith as a Defendant, she notes in the margin: “(Rights to privacy, health,
consent, and not to be followed or to make money holding me captive with the Lewisburg Police
Department or abusing authority.” (Doc. No. 1 at 3). However, Smith is not mentioned in the
narrative of the complaint, and Plaintiff does not allege that Smith engaged in acts that violated
Plaintiff’s privacy, health, or right to consent. Neither does the complaint allege that Smith is or
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was employed as an officer of the Lewisburg Police Department, is or was acting as an agent of
the FBI or United States, or is or was holding Plaintiff captive.
A plaintiff must identify the right or privilege that was violated and the role of the defendant
in the alleged violation, see Miller v. Calhoun Cnty., 408 F.3d 803, 827 n.3 (6th Cir. 2005); Dunn
v. Tenn., 697 F.2d 121, 128 (6th Cir. 1982), and Plaintiff has not alleged any specific personal
involvement by these Defendants in the events described in the complaint. Further, Plaintiff has
not alleged that these Defendants acted under color of state or federal law. Therefore, Plaintiff’s
allegations against Defendants Ritter, Childers, and Smith fail to state Section 1983 and Bivens
claims upon which relief can be granted.
C. Defendant Dr. McGraw
In the section of the complaint where Plaintiff identifies Dr. McGraw as a Defendant, she
notes in the margin: “DL rights to have money, consent, privacy, GPS signal, and not being a
subject to human trafficking, rights to adulthood, emotional state, and pregnancy in country other
than USA) (Rights to remove dead fetus bone fragments, Rights to one’s one life and pathway).”
(Id. at 2). However, Plaintiff does not allege in the narrative of the complaint that Dr. McGraw
was involved in any of these alleged harmful acts. The complaint does not allege any personal
involvement by Dr. McGraw in the allegations set forth by Plaintiff. Neither does the complaint
allege that Dr. McGraw acted under color of state or federal law with respect to any actions taken
by him that harmed Plaintiff. Plaintiff alleges only that Dr. McGraw “can be put under oath” to
corroborate the allegations of the complaint. (Doc. No. 1 at 3). This allegation in insufficient to
sustain liability under Section 1983 or Bivens.
Additionally, in a previous lawsuit brought by Plaintiff in this Court, she sued Dr. McGraw
under Section 1983, alleging that he “sexually, emotionally, and physically impacted [Plaintiff’s]
life.” Holly C. Phillips v. Lewisburg Police Dep’t, et al., No. 1:20-cv-00020 (Doc. No. 1 at 5)
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(Campbell, J.). Plaintiff also alleged that Dr. McGraw, along with the local police, allowed
Plaintiff’s “ex brother in law to draw money from it while keeping [Plaintiff] held against [her]
will” and allowed “an abuser to practice medicine on [her].” (Id.) That complaint “seemed to
suggest that Dr. McGraw played a role in forcing Plaintiff to become pregnant, or to terminate her
pregnancy, leaving ‘bone fragments’ of a fetus inside Plaintiff.” (Id., Doc. No. 5 at 3). The Court
dismissed Plaintiff’s claims against Dr. McGraw, finding that they failed to state claims under
Section 1983 upon which relief can be granted. (Id., Doc. Nos. 7 and 8). To the extent that Plaintiff
attempts to relitigate those claims in this action, she is barred by the doctrine of issue preclusion
from doing so. See Gen. Elect. Med. Sys. Europe v. Prometheus Health, 394 Fed. App’x 280, 283
(6th Cir. 2010) (setting forth the elements of issue preclusion).
Furthermore, Section 1915 “accords judges not only the authority to dismiss a claim based
on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the
complaint's factual allegations and dismiss those claims whose factual contentions are clearly
baseless.” Neitzke v. Williams, 490 U.S. 319, 327-38 (1989) (providing as an example “claims
describing fantastic or delusional scenarios, claims which with federal district judges are all too
familiar.”). The Court finds that the allegations of the complaint are frivolous, and the complaint
fails to allege concrete facts that state a plausible cause of action over which this Court may
exercise jurisdiction. On that basis, too, Plaintiff’s Section 1983 and/or Bivens claims against all
Defendants fail as a matter of law.
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V. CONCLUSION
The Court has conducted an initial review of the complaint under 28 U.S.C. § 1915(e)(2)
and finds that the complaint fails to state claims upon which relief may be granted under 42 U.S.C.
§ 1983 and Bivens. Accordingly, this action will be dismissed.
An appropriate Order will be entered.
____________________________________
WILLIAM L. CAMPBELL, JR.
UNITED STATES DISTRICT JUDGE
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