Hankerd v. Federal Bureau of Investigations et al

Filing 68

***DUPLICATE ENTRY. DISREGARD.*** ORDER ADOPTING REPORT AND RECOMMENDATIONS for 64 Report and Recommendations of the United States Magistrate Judge. The Court finds Plaintiffs Objections (Docket No. 66) should be OVERRULED and the Magistrate Judges Report (Docket No. 64) should be ADOPTED IN PART. Defendants Motion to Dismiss (Docket No. 62) is GRANTED and this action is DISMISSED WITHOUT PREJUDICE. Furthermore, the Court ORDERS that all other pending motions are DENIED as MOOT. Signed by District Judge Jeremy D. Kernodle on 4/5/2019. (gsg) Modified on 4/5/2019 (gsg).

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
KENDRA HANKERD,
Plaintiff,
v.
FEDERAL BUREAU OF
INVESTIGATIONS AND
CHRISTOPHER WRAY—DIRECTOR,
Defendants.

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Case No. 6:18-CV-204-JDK-JDL

ORDER ADOPTING IN PART THE REPORT AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
This action was referred to United States Magistrate Judge John D. Love
pursuant to 28 U.S.C. § 636.

Plaintiff Kendra Hankerd (“Plaintiff”), proceeding

pro se, filed a Complaint (Docket No. 1) on May 10, 2018, against Defendant
Federal Bureau of Investigations (“FBI”) and Defendant Christopher

Wray,

Director of the FBI (“Wray”) (collectively referred to as “Defendants”).

On

March 8, 2019, the Magistrate Judge issued a Report and Recommendation
(Docket No. 64), recommending that the Court grant Defendants’ Motion to Dismiss
pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(5), and 12(b)(6) (Docket
No. 62).

Plaintiff filed Objections (Docket No. 66) to the Report and

Recommendation on April 1, 2019.
The Court reviews de novo the portions of the Magistrate Judge’s findings to
which objections have been raised. 28 U.S.C. § 636(b)(1)(C). Having reviewed the

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Magistrate Judge’s findings and Plaintiff’s objections, the Court OVERRULES
Plaintiff’s Objections (Docket No. 66) and ADOPTS IN PART the Magistrate Judge’s
Report and Recommendation (Docket No. 64) as the findings of the Court. As the
Magistrate Judge found, Plaintiff’s claims against the FBI and against Wray in his
official capacity fail for lack of subject matter jurisdiction. To the extent Plaintiff is
bringing claims against Wray in his individual capacity, she has not properly stated
a claim. The Court therefore dismisses this action without prejudice.
I.

LEGAL STANDARD
The Court reviews objected-to portions of the Magistrate Judge’s Report and

Recommendation de novo. See Fed. R. Civ. P. 72; 28 U.S.C. § 636(b)(1) (“A judge of
the court shall make a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made.”). A court
conducting a de novo review examines the entire record and makes an independent
assessment under the law. Douglass v. United States Automobile Ass’n, 79 F.3d 1415,
1430 (5th Cir. 1996) (en banc), superseded by statute on other grounds, 28 U.S.C.
§ 636(b)(1) (extending the time to file objections from ten to fourteen days).
II.

ANALYSIS
In her Complaint (Docket No. 1), Plaintiff has alleged thirty different “claims”

against Defendants. The Magistrate Judge reviewed Plaintiff’s pleadings and the
record and found that Plaintiff failed to identify a basis for federal subject matter
jurisdiction.

Accordingly, the Magistrate Judge recommended this action be

dismissed without prejudice.

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Plaintiff has raised a variety of issues in her Objections (Docket No. 66). The
Court understands these issues to include: (1) Plaintiff was never properly served
with a copy of the Report and Recommendation; (2) Plaintiff alleged sufficient factual
allegations in her Complaint; and (3) the Court engaged in corruption and broke laws.
First, Plaintiff alleges that “[d]ue to fraud” she never received a “certified copy”
of the Report and Recommendation, but instead just a “regular envelope copy.”
Docket No. 66 at 1. Mailing a paper to a person’s last known address, however, is
proper service. Fed. R. Civ. P. 5(b)(2)(C). Moreover, Plaintiff’s Objections filed with
the Court confirm that Plaintiff has received the Magistrate Judge’s Report and
Recommendation. Accordingly, the Court finds that Plaintiff was properly served
with a copy of the Magistrate Judge’s Report and Recommendation.
Second, Plaintiff makes various allegations in what appears to be an attempt
to support the factual basis of her claim. Plaintiff alleges that on January 16, 2016,
she contacted the FBI with information regarding a fourteen-year-long “Comcast
Hacking.” Docket No. 66 at 2. According to Plaintiff, one of the four hackers was
Daniel Hankerd, who had also confessed a murder to Plaintiff. Id. Plaintiff then
claims that she reported the hacking and the murder to the FBI and the State of
Tennessee, but neither took any action on the alleged criminal activity. Id.
Plaintiff also claims she was previously a paid informant for both the FBI and
the State of Tennessee. Id. at 2–3. During that time, Plaintiff claims to have had a
relationship with Detective Andre Davis. Id. at 2. Plaintiff alleges that when the
FBI learned about the relationship, the FBI launched a campaign of stalking and

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harassment against Plaintiff. Id. at 2–4. In particular, Plaintiff states that the FBI
manipulated electronic devices, used products and companies (including Disney
World and country music singer Reba McEntire), installed video cameras to monitor
Plaintiff, and sent men and photos to intimidate Plaintiff. Id. at 3–4.
Additionally, Plaintiff claims that at some point she died and went to heaven.
Id. at 4. She states that she then had an encounter with Jesus, who sent Plaintiff
back to earth to “help build his Kingdom” and to spread information that Jesus
provided to her so that lives could be saved. Id. at 4–5. Plaintiff also claims that she
can call over 100 witnesses in support of her claims. Finally, Plaintiff requests $800
billion and a restraining order as relief for her alleged injuries. Id. at 9.
Plaintiff’s objections, however, do not address the problems with her
Complaint.

As the Magistrate Judge explained in his Report, absent clear

congressional consent providing a basis for jurisdiction, the United States as
sovereign is immune from suit. United States v. Mitchell, 445 U.S. 535, 538 (1980)
(citing United States v. Sherwood, 312 U.S. 584, 586–88 (1941)).

The Court

therefore lacks subject matter jurisdiction over claims against the FBI and against
Wray in his official capacity. Id. Plaintiff has not identified any basis for waiving
sovereign immunity or otherwise invoking the Court's subject jurisdiction for
those claims.
To the extent that Plaintiff alleges constitutional claims against Wray in
his individual capacity, those claims would not be dismissed for lack of
jurisdiction. These claims, however, fail because Plaintiff did not properly state a

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claim. A supervisory official like Wray “may be held liable only upon two bases”: (1)
“personal involvement in the acts causing the deprivation of a person's constitutional
rights creates personal liability”; and (2) “if he implements a policy so deficient that
the policy itself acts as a deprivation of constitutional rights.”

Cronn v.

Buffington, 150 F.3d 538, 544 (5th Cir. 1998). Plaintiff has not alleged any facts
indicating personal involvement by Wray or the existence of policies that
violated Plaintiff’s constitutional rights. The Court therefore dismisses Plaintiff’s
claims against Wray in his individual capacity for failure to state a claim. FED. R.
CIV. P. 12(b)(6).
Third, Plaintiff alleges that the Court engaged in corruption, broke laws,
and acted unethically. Docket No. 66 at 5, 7–9. This allegation seems to stem, at
least in part, from the Court’s failure to grant Plaintiff a temporary restraining
order and what Plaintiff perceives as the Court’s favoritism toward Defendants.
Plaintiff alleges she broke her leg because of the Court’s failure to grant a
temporary restraining order.

Id. at 8–9. Plaintiff, however, does not cite any

specific laws or rule violations to support any misconduct by the Court. Nor could
she, as Plaintiff’s allegations are without merit and not rooted in any legal basis.
Accordingly, the Court finds that the Magistrate Judge appropriately
recommended that Plaintiff’s claims against the FBI and Wray in his official
capacity be dismissed for lack of subject matter jurisdiction.

In addition,

Plaintiff’s claims against Wray in his individual capacity are dismissed because
she did not properly state a claim.

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III.

CONCLUSION
Having made a de novo review of the objected-to portions of the Report and

Recommendation (Docket No. 64), the Court finds, for the reasons explained above,
that Plaintiff’s Objections (Docket No. 66) should be OVERRULED and the
Magistrate Judge’s Report (Docket No. 64) should be ADOPTED IN PART.
Defendants’ Motion to Dismiss (Docket No. 62) is GRANTED and this action is
DISMISSED WITHOUT PREJUDICE. Furthermore, the Court ORDERS that all
other pending motions are DENIED as MOOT.
So ORDERED and SIGNED this 5th day of April, 2019.

___________________________________
JEREMY D. KERNODLE
UNITED STATES DISTRICT JUDGE

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