Opinion
Civil Action 3:22-CV-00434
08-26-2022
DANIEL J. RICHARDSON, Plaintiff, v. FEDERAL BUREAU OF INVESTIGATION, et al., Defendants.
MARIANI, J.
s REPORT AND RECOMMENDATION
KAROLINE MEHALCHICK Chief United States Magistrate Judge
This is action was initiated upon the filing of the original complaint in this matter on March 22, 2022, by pro se Plaintiff Daniel J. Richardson (“Richardson”) against Defendants Federal Bureau of Investigation (“FBI”) and John Doe FBI Agents (collectively, “Defendants”), alleging that unnamed law enforcement officers had engaged in conduct for more than 7 L years that violated his civil rights, including being attacked by dogs, having firearms pointed at him, surveilling him, and making physical contact with him. (Doc. 1, at 7-9). Richardson asserts claims for monetary compensation of fifty million dollars pursuant to 42 U.S.C. § 1983; 42 U.S.C. § 1985; the Fourth Amendment; Fifth Amendment; Fourteenth Amendment; the Universal Declaration of Human Rights; and the Americans with Disability Act (“ADA”). (Doc. 1, at 10). Before the Court is Richardson's motion for temporary restraining order and preliminary injunction (Doc. 7); Defendants' motion to dismiss or, alternatively, for summary judgment Doc. 12); and Richardson's motion to amend (Doc. 15).
For the following reasons, it is respectfully recommended that Richardson's motion for temporary restraining order be DENIED, Defendant's motion to dismiss be GRANTED in part and DENIED in part, and Richardson's motion to amend be DENIED in part and GRANTED in part. (Doc. 7; Doc. 12; Doc. 15).
I. Background and Procedural History
Richardson initiated this action by filing a complaint on March 22, 2022. (Doc. 1). On
April 6, 2022, Richardson filed a motion for temporary restraining order and preliminary injunction. (Doc. 7). Defendants filed a motion to dismiss or, alternatively, for summary judgment, as well as a brief in support and a statement of material facts, on May 23, 2022.(Doc. 12; Doc. 13; Doc. 14). In response to the motion to dismiss, Richardson filed the motion for leave to file an amended complaint on July 12, 2022. (Doc. 15, at 1-2). Defendants have opposed Richardson's motion to amend, arguing that it would be futile to permit Richardson to file his amended complaint because his claims remain insufficiently pleaded. (Doc. 16, at 1).
At this early stage of the proceedings, before discovery has commenced, a motion for summary judgment is premature. Federal Rule of Civil Procedure 56 allows parties to file motions for summary judgment before the conclusion of discovery. See Fed.R.Civ.P. 56(b). However, the Third Circuit has held that in general, a court should not grant summary judgment until the party opposing the motion has had an adequate opportunity to conduct discovery. See Radich v. Goode, 886 F.2d 1391, 1393 (3d Cir. 1989) (citation omitted) (stating that Federal Rule of Civil Procedure 56(f) provides the district court with discretion to defer ruling on a motion for summary judgment when the party opposing the motion submits an affidavit stating that it requires additional discovery). Given that the parties have not had the opportunity to conduct meaningful discovery, the undersigned concludes that Defendants' alternative motion for summary judgment is premature. See e.g., Doe v. Mercy Health Corp. of Se. Pa., 150 F.R.D. 83, 85 (E.D. Pa. May 25, 1993) (holding that, where the defendant submitted motion for summary judgment in early stages of discovery, and the court concluded that there was a reasonable possibility that plaintiff would be able to “adduce pertinent evidence through further discovery,” the defendant's motion for summary judgment was premature). Accordingly, it is recommended that Defendants' alternative motion for summary judgment be DENIED without prejudice to their ability to renew the motion after the close of discovery. (Doc. 12). As such, the undersigned considers Defendants' motion exclusively as a motion to dismiss. (Doc. 12).
In the motion to amend, Richardson requests that the Court issue a subpoena directing Defendants to identify the true identity of the alleged offending law enforcement officers. (Doc. 15, at 1). Rule 45 of the Federal Rules of Civil Procedure sets forth the form, issuance, service and compliance procedures for subpoenas. Fed.R.Civ.P. 45. Rule 45 also establishes territorial restrictions on the service of subpoenas:
a subpoena may be served at any place within the district of the court by which it is issued, or at any place without the district, that is within 100 miles of the place of the deposition, hearing, trial, production, or inspection specified in the subpoena or at any place within the state where a state statute or rule of court permits service of a subpoena issued by a state court of general jurisdiction sitting in the place of the deposition, hearing, trial, production, or inspection specified in the subpoena.Fed. R. Civ. P. 45(b)(2). Here, Richardson offers no evidence, except to the contrary, that he has attempted to secure information about John Doe FBI Agents' identities in accordance with Rule 45. Considering the territorial limitations on the service of subpoenas as set forth above, the Court is neither inclined nor authorized to issue a subpoena on behalf of Richardson for what he himself has failed to effectuate. Accordingly, it is recommended that Richardson's request for the Court to issue a subpoena directing the release of John Doe FBI Agents' identities be
Richardson's complaints set forth the following facts. Richardson contends that “for the past 7 L years he has been terrorized, stalked, intimidated and deprived of his basic right to travel in the United States without a federal escort.” (Doc. 1, at 2; Doc. 15, at 2). Richardson describes various instances in that John Doe FBI Agents allegedly harassed him without providing specific details as to the date, time, or location where such events took place. (Doc. 1, at 2-4). Richardson admits that he suffers from mental health issues and has received treatment for the same. (Doc. 1, at 5, 10). Richardson contends that John Doe FBI Agents acted with racial animus and subjected him to discriminatory treatment based on his mental health condition. (Doc. 1, at 5-15). He asserts claims pursuant to 42 U.S.C. § 1983; 42 U.S.C. § 1985; the Fourth Amendment; Fifth Amendment; Fourteenth Amendment; the Universal Declaration of Human Rights; and the Americans with Disability Act (“ADA”). (Doc. 1, at 10-15). Richardson names Defendants by identifying the license plates of the purported “rogue” federal law enforcement agents. (Doc. 1, at 1).
II. Standards of Review
A. Motion to Amend
Pursuant to Federal Rule of Civil Procedure 15, “[a] party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served .... otherwise a party may amend the party's pleading only by leave of the court or by written consent if justice so requires.” Fed.R.Civ.P. 15(a). Under Rule 15(a)(2), “[t]he court should freely give leave [to amend pleadings] when justice so requires.” Fed.R.Civ.P. 15(a)(2); see also Foman v. Davis, 371 U.S. 178, 182 (1962) (“[T]his mandate is to be heeded.”). However, even under this liberal standard, a motion for leave to amend may be denied when justified. The decision whether to grant or to deny a motion for leave to amend rests within the sound discretion of the district court. Foman, 371 U.S. at 182; Waterfront Renaissance Assoc. v. Phila., 701 F.Supp.2d 633, 639 (E.D. Pa. 2010). A district court may deny leave to amend a complaint where “it is apparent from the record that (1) the moving party has demonstrated undue delay, bad faith or dilatory motives, (2) the amendment would be futile, or (3) the amendment would prejudice the other party.” Lake v. Arnold, 232 F.3d 360, 373 (3d Cir.2000) (citing Foman, 371 U.S. at 182).
“‘Futility' means that the complaint, as amended, would fail to state a claim upon which relief could be granted.” Shane, 213 F.3d at 115 (quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d at 1434). Thus, the futility standard which applies to motions to amend mirrors the legal benchmarks the Court must apply when considering a motion to dismiss, and calls upon the Court to determine whether the well-pleaded facts in a proposed amended complaint plausibly state a claim upon which relief may be granted. Palencar v. Raijski, No. 3:15-CV-1189, 2016 WL 3746386, at *5 (M.D. Pa. June 16, 2016), report and recommendation adopted, 2016 WL 3671280 (M.D. Pa. July 11, 2016). Given the liberal standard for the amendment of pleadings, however, “courts place a heavy burden on opponents who wish to declare a proposed amendment futile.” Aruanno v. New Jersey, No. Civ.A.06-296, 2009 WL 114556, at *2 (D.N.J. Jan. 15, 2009). “If a proposed amendment is not clearly futile, then denial of leave to amend is improper.” 6 Wright, Miller & Kane, Federal Practice & Procedure § 1487 (2d ed.1990) (emphasis added).
Here, Richardson filed his initial complaint on March 22, 2022, and filed a motion to amend/correct on July 12, 2022, seeking “to include additional defendants [and] additional violations of terrorism/witness tampering/witness intimidation by rogue government agents and/ request for subpoena issued at Defendants to learn the true identity of Defendant offenders.” (Doc. 1; Doc. 15, at 1). Though no proposed amended complaint was attached, it appears that Richardson seeks to simply bolster his original complaint by including additional instances that support his causes of action. (Doc. 15, at 1-2). For purposes of reviewing Defendants' motion to dismiss, the undersigned will treat both the complaint and pleadings in the motion to amend as Richardson's original pleadings and will reference both documents jointly as the “Complaint.” (Doc. 1; Doc. 15); see Ramirez, v. Commonwealth of Pennsylvania, No. 3:20-CV-1936, 2022 WL 3643654, at *1 n.1 (M.D. Pa. Aug. 1, 2022), report and recommendation adopted, 2022 WL 3599382 (M.D. Pa. Aug. 23, 2022) (“Because we are addressing both the motion to dismiss the first amended complaint and the motion to amend, we will address the factual contentions in the proposed second amended complaint as well as the first amended complaint, the operative pleading at this juncture.”).
B. Motion to Dismiss
Rule 12(b)(6) authorizes a defendant to move to dismiss for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). To assess the sufficiency of a complaint on a Rule 12(b)(6) motion, a court must first take note of the elements a plaintiff must plead to state a claim, then identify mere conclusions which are not entitled to the assumption of truth, and finally determine whether the complaint's factual allegations, taken as true, could plausibly satisfy the elements of the legal claim. Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011). in deciding a Rule 12(b)(6) motion, the court may consider the facts alleged on the face of the complaint, as well as “documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.s. 308, 322 (2007).
After recognizing the required elements which make up the legal claim, a court should “begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Ashcroft v. Iqbal, 556 U.s. 662, 679 (2009). The plaintiff must provide some factual ground for relief, which “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.s. 544, 555 (2007). “[T]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.s. at 678. Thus, courts “need not credit a complaint's ‘bald assertions' or ‘legal conclusions '” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d at 1429-30). The court also need not assume that a plaintiff can prove facts that the plaintiff has not alleged. Associated Gen. Contractors of Cal. v. Cal. St. Council of Carpenters, 459 U.s. 519, 526 (1983).
A court must then determine whether the well-pleaded factual allegations give rise to a plausible claim for relief. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Palakovic v. Wetzel, 854 F.3d 209, 219-20 (3d Cir. 2017) (quoting Iqbal, 556 U.S. at 678) (internal quotation marks omitted); see also Sheridan v. NGK Metals Corp., 609 F.3d 239, 262 n.27 (3d Cir. 2010). The court must accept as true all allegations in the complaint, and any reasonable inferences that can be drawn therefrom are to be construed in the light most favorable to the plaintiff. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994). This “presumption of truth attaches only to those allegations for which there is sufficient factual matter to render them plausible on their face.” Schuchardt v. President of the U.S., 839 F.3d 336, 347 (3d Cir. 2016) (internal quotation and citation omitted). The plausibility determination is context-specific and does not impose a heightened pleading requirement. Schuchardt, 839 F.3d at 347.
With the aforementioned standard in mind, a document filed pro se is “to be liberally construed.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). A pro se complaint, “however inartfully pleaded,” must be held to “less stringent standards than formal pleadings drafted by lawyers” and can only be dismissed for failure to state a claim if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Nonetheless, pro se plaintiffs are still subject to the basic pleading requirements of Rule 8. Rhett v. N.J. St. Super. Ct., 260 Fed.Appx. 513, 515 (3d Cir. 2008). The Third Circuit has further instructed that if a complaint is vulnerable to dismissal for failure to state a claim, the district court must permit a curative amendment, unless an amendment would be inequitable or futile. Grayson v. Mayview St. Hosp., 293 F.3d 103, 108 (3d Cir. 2002).
III. Discussion
Defendants seek to dismiss this action for a myriad of reasons, including: (1) Section 1983 and the fourteenth amendment do not apply to federal officials acting under the color of federal law; (2) Richardson fails to state a claim pursuant to section 1985; (3) the Universal Declaration of Human Rights does not provide an individual damages remedy against the United States or federal officers; (4) the ADA does not apply to the federal government; (5) and Richardson fails to allege personal involvement to sustain a cognizable claim under the Fourth or Fifth Amendment. (Doc. 13, at 1-12). In the motion to amend, Richardson seeks “to include additional defendants [and] additional violations of terrorism/witness tampering/witness intimidation by rogue government agents and/ request for subpoena issued at Defendants to learn the true identity of Defendant offenders.” (Doc. 15, at 1). Richardson goes on to describe additional encounters with unnamed and unknown persons. (Doc. 15, at 1-2). In opposition to the motion to amend, Defendants argue “the motion to amend is futile and inequitable to the United States as it would require it to continue to defend baseless allegations that are supported by no more support than Richardson's speculation that the actors are federal employees.” (Doc. 16, at 3-4).
While the Court is obligated to liberally construe Richardson's pro se pleading to ensure meaningful consideration of his claim, Richardson's Complaint does not set forth any intelligible claims against any party. (Doc. 1; Doc. 15); see Haines, 404 U.S. at 520. Facially, the allegations are devoid of both a statement of jurisdiction and a statement as to the nature of the claim entitling him to relief as required by Fed.R.Civ.P. 8(a)(1). Although Richardson purportedly brought this action under several statutes, including 42 U.S.C. § 1983; 42 U.S.C. § 1985; the Fourth Amendment; Fifth Amendment; Fourteenth Amendment; the Universal Declaration of Human Rights; and the ADA, his failure to narrate any facts concerning any defendants' alleged wrongdoing frustrates even the most lenient of analytical approaches. The Court addresses each cause of action individually.
A. Defendants' Motion to Dismiss
1. 42 U.S.C. § 1983 and Fourteenth Amendment claims
First, Defendants argue that Richardson's section 1983 and the Fourteenth Amendment claims must be dismissed with prejudice because “section 1983 and the Fourteenth Amendment do not apply to federal officers acting under the color of federal law.” (Doc. 13, at 6). in his Complaint, Richardson alleges that Defendants deprived him “of his constitutional right to not be deprived of liberty without due process of law.” (Doc. 1, at 14). This he may not do. Rather, it is well-settled that:
section 1983 creates a cause of action against “[e]very person who, under color of any [state law] . . . subjects, or causes to be subjected, any citizen of the United states or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution.” 42 U.S.C. § 1983. Because section 1983 provides a remedy for violations of federal law by persons acting pursuant to state law, federal agencies and officers are facially exempt from section 1983 liability inasmuch as in the normal course of events they act pursuant to federal law. See District of Columbia v. Carter, 409 U.s. 418, 425 (1973); see also Daly-Murphy v. Winston, 837 F.2d 348, 355 (9th Cir. 1988) (no section 1983 claim against federal officials acting pursuant to federal law); Zernial v. United States, 714 F.2d 431, 435 (5th Cir. 1983) (action taken pursuant to federal law by federal agents and private parties); Kite v. Kelley, 546 F.2d 334, 337 (10th Cir. 1976) (section 1983 is not applicable to federal officers acting under federal law); Scott v. United States Veteran's Admin., 749 F.Supp. 133, 134 (W.D. La. 1990) (federal government and its agencies acting under federal law are not “persons” within section 1983), aff'd, 929 F.2d 146 (5th Cir. 1991) (per curiam).Hindes v. F.D.I.C., 137 F.3d 148, 158 (3d Cir. 1998).
Therefore, Richardson's § 1983 claims fail as to Defendants the FBI and John Doe FBI Agents Richardson attempts to name. See Palencar, 2016 WL 3746386, at *5 (dismissing claims against federal officials sued individually under 42 U.S.C. § 1983).
Likewise, it is well-settled that the Fourteenth Amendment of the United States does not apply to the federal government or its employees. In re Guantanamo Detainee Cases, 355 F.Supp.2d 443, 480 (D.C. Cir. 2005) (dismissal of Fourteenth Amendment claims in action against the federal government); Taylor v. United States, 320 F.2d 843, 846 (9th Cir.1963), (“The Fourteenth Amendment applies to state, not federal action”); Quiles v. Vitt, No. 1:09-CV-580, 2010 WL 5559507, at *6 (M.D. Pa. Dec. 16, 2010), report and recommendation adopted, 2011 WL 65758 (M.D. Pa. Jan. 10, 2011) (“By its terms, the Fourteenth Amendment only applies to state action.”). Therefore, Richardson's Fourteenth Amendment claims fail as to Defendants, the FBI and John Doe FBI Agents, since the Fourteenth Amendment only addresses the deprivation of rights by state actors. See Okpala v. Jordan, 193 Fed.Appx. 850, 852 (11th Cir. 2004) (holding “the claims against FCI and Warden Jordan under the Contracts Clause and the Fourteenth Amendment must be. dismissed because those provisions apply to the States, not the Federal government”); United States v. Edwards, 98 F.3d 1364,1368 (D.C.Cir.1996) (holding “the fourteenth amendment does not apply to the federal government; an equal protection challenge to the statute must be raised under the fifth amendment instead”); Hudson Valley Black Press v. IRS, 307 F.Supp.2d 543, 545 (S.D.N.Y.2004) (holding “Plaintiff cannot plead a violation of the Fourteenth Amendment against defendants because the Fourteenth Amendment does not apply to federal actors”). In sum, as much as Richardson's § 1983 and Fourteenth Amendment claims are brought against a federal agency and federal agents, Richardson cannot maintain a cause of action pursuant to § 1983 and Fourteenth Amendment and, therefore, amendment is futile. See Hindes, 137 F.3d at 158; Quiles, 2010 WL 5559507, at *6.
Accordingly, it is recommended that Defendants' motion to dismiss be GRANTED as to Richardson's section 1983 and Fourteenth Amendment claims, and that those claims be DISMISSED with prejudice. (Doc. 12).
2. 42 U.S.C. § 1985 claim
Next, Defendants seek to dismiss Richardson's section 1985 claims, arguing that the Complaint “is lacking in any factual development of a conspiracy between any identifiable federal official.” (Doc. 13, at 7). Defendants contend that Richardson “identifies no facts which when viewed in a light most favorable to him demonstrate two or more federal officials agreed to violate his rights as alleged.” (Doc. 13, at 7). In the Complaint, Richardson attempts to allege a claim of “conspiracy to interfere with civil [rights]” pursuant to 42 U.S.C. § 1985. (Doc. 1, at 13-15). Richardson asserts:
On or about the date(s) of May 2015 through September 11, 2020, for approximately 5 full calendar years, and approximately 2,000 days & nights, for all of 24 h[ou]rs a day throughout said period, both known and unknown agents of the [FBI] and Scranton Police Department did agree to deprive [Richardson] of his constitutional right not to be deprived of liberty without due process of law (FBI agents usually in the number of 30 or more agents at any one given time) by following, stalking, shadowing, tracking down and hunting him like animalistic prey on his every move as he drove his vehicle and/or traveled by foot throughout the city of [S]cranton, [PA], and the City & State of New York.... These Government agents through their course of conduct directed specifically to [Richardson] involving repeated (more than 2,000) offenses including excessive visual and physical proximity stalking, nonconsensual communication, implied threats, and the combination thereof, cause [Richardson] to live in a “CHRONIC” state of fear.(Doc. 1, at 13-14).
A conspiracy involves a “combination, agreement, or understanding among all or between any of the defendants to plot, plan, or conspire to carry out the alleged chain of events in order to deprive plaintiff of a federally protected right.” Fioriglio v. City of Atlantic City, 996 F.Supp. 379, 385 (D.N.J.1998) (citing Darr v. Wolfe, 767 F.2d 79, 80 (3d Cir. 1985); Ammlung v. City of Chester, 494 F.2d 811, 814 (3d Cir. l974)). At the onset, section 1985(1) is clearly inapplicable here, as it “prohibits two or more persons from interfering with a federal officer's performance of his duties.” Desi's Pizza, Inc. v. City of Wilkes-Barre, 321 F.3d 411, 423 n.1 (3d Cir. 2003) (internal quotation marks omitted).
In order “[t]o state a claim under §§ 1985(2) or (3), a plaintiff must allege four things: (1) a conspiracy; (2) motivated by a racial or class-based discriminatory animus designed to deprive, directly or indirectly, any person or class of persons of the equal protection of the laws; (3) an act in furtherance of the conspiracy; and (4) an injury to person or property or the deprivation of any right or privilege of a citizen of the United States.” Andela v. Admin. Office of U.S. Courts, 569 Fed.Appx. 80, 84 (3d Cir.2014) (citing Griffin v. Breckenridge, 403 U.S. 88, 102-03 (1971)). Here, Richardson contends that federal law enforcement agents acted with racial animus and subjected him to discriminatory treatment based on his mental health condition. (Doc. 1, at 5-15; Doc. 15, at 1-2). Richardson makes several allegations of agreement and overt acts by Defendants, claiming that “for the past 7 L years he has been terrorized, stalked, intimidated and deprived of his basic right to travel in the United States without a federal escort.” (Doc. 1, at 2; Doc. 15, at 2). Richardson describes various instances in that John Doe FBI Agents allegedly harassed him, however, Richardson does not provide specific details as to the date, time, or location where such events took place. (Doc. 1, at 2-4; Doc. 15, at 2-4).
Even when liberally construed in the light most favorable to the pro se plaintiff, the Court finds that the Complaint fails to articulate any facts from which a conspiratorial agreement between Defendants can be inferred, nor does it allege any facts regarding any role of individual John Doe FBI Agents in such a conspiracy, any overt acts taken by a federal agent to further any conspiracy, or any discriminatory animus behind any actions. Although Richardson's Complaint fails to state a claim against Defendants under Section 1985, it is unclear whether Richardson may be able to assert a plausible Section 1985 claim. See Franks v. Waguespack, No. 2:14-CV-1733, 2015 WL 4756424, at *3 (W.D. Pa. Aug. 11, 2015) (“Although it would be futile to allow Plaintiff to file the proposed first amended complaint as drafted with regard to the Section 1985 conspiracy claim and alleged conspirators, it is unclear whether Plaintiff may be able to assert a plausible Section 1985 claim.”). Therefore, the Court cannot conclude that it would be futile to allow Richardson to amend his Complaint to clarify his civil rights conspiracy claim under Section 1985.
Accordingly, it is recommended that Defendants' motion to dismiss be GRANTED as to Richardson's section 1985 claim, and that the claim be DISMISSED without prejudice. (Doc. 12).
3. Universal Declaration of Human Rights claim
Defendants argue that the Court should dismiss with prejudice Richardson's claim brought under the Universal Declaration of Human Rights because “[t]he Universal Declarations of Human Rights does not provide an individual damages remedy against the United States or federal officers.” (Doc. 13, at 9). In the Complaint, Richardson attempts to assert that Defendants violated his rights under the Universal Declaration of Human Rights by including an excerpt from General Assembly resolution 217A. (Doc. 1, at 16). The Third Circuit has found this “argument lacks merit because the Universal Declaration of Human Rights is a non-binding declaration that provides no private rights of action.” United States v. Chatman, 351 Fed.Appx. 740, 741 (3d Cir. 2009) (citing Sosa v. Alvarez-Machain, 542 U.S. 692, 734 (2004) (clarifying that the Universal Declaration of Human Rights is merely a resolution of the United Nations and “does not of its own force impose obligations as a matter of international law”)). Thus, the Universal Declaration of Human Rights cannot support Richardson's claims.
Accordingly, it is recommended that Defendants' motion to dismiss be GRANTED as to Richardson's Universal Declaration of Human Rights claim, and that the claim be DISMISSED with prejudice. (Doc. 12).
4. ADA claims
Defendants argue that the Court should dismiss Richardson's ADA claims with prejudice because Defendants are not subject to the ADA. (Doc. 13, at 9-10). Richardson asserts claims under the ADA “on behalf of all persons similarly situated and affected equally by the tortuous operations.” (Doc. 1, at 5). Richardson states that he suffers from mental health issues and that Defendants have subjected him to discriminatory treatment based on his mental health condition. (Doc. 5, at 5, 10).
Title I of the ADA protects those qualified disabled individuals “who, with or without reasonable accommodation, can perform the essential functions of the employment position,” from discrimination in “the hiring, advancement, or discharge of employees, employment compensation, job training and other terms, conditions, and privileges of employment.” 42 U.S.C. §§ 12111(8), 12112(a). It covers all public and private employers, employment agencies, and labor unions, excepting businesses with less than fifteen (15) employees for each working day and the federal government. See 42 U.S.C. §§ 12111(2), (5), (7). Therefore, the federal government is not subject to the ADA. See Lavia v. Pennsylvania Department of Corrections, 224 F.3d 190, 198 (3d Cir.2000); 42 U.S.C. § 12111(5)(B)(I); see also Venter v. Potter, 435 Fed.Appx. 92, 95 n.1 (3d Cir. 2011) (stating “the entire federal government is excluded from the coverage of the ADA”); Bauer v. F.B. Investigations, No. CIV.A. 09-1250, 2010 WL 2331064, at *1 (W.D. Pa. May 6, 2010), report and recommendation adopted, 2010 WL 2266356 (W.D. Pa. June 3, 2010) (dismissing claim of disability discrimination under the ADA against the federal government); Whooten v. Bussanich, No. 04-223, 2005 WL 2130016, at *7 (M.D. Pa. Sept. 2, 2005) (stating the ADA does not contain a waiver of sovereign immunity so it does not apply to the federal government).
Accordingly, it is recommended that Defendants' motion to dismiss be GRANTED as to Richardson's ADA claim, and that the claim be DISMISSED with prejudice. (Doc. 12).
5. Fourth and Fifth Amendment claims under Bivens
Finally, Defendants seek dismissal of Richardson's Fourth and Fifth Amendment claims, arguing that “Richardson does not identify any individual federal officer which is required to state a cognizable claim under the Fourth or Fifth Amendment because such claims require the allegation of personal involvement.” (Doc. 13, at 2). Defendants contend that “[f]ailure to provide the Court with the identities of any individual defendant and to serve the complaint should result in dismissal of all unnamed federal defendants,” and that Richardson “has made no effort to identify the individuals.” (Doc. 13, at 11). Moreover, Defendants aver that any dismissal should be with prejudice because “the FBI conducted a search of its records and determined that, apart from Richardson's complaints made to the FBI and inquiry made by Congressman Cartwright's office, he is not otherwise known to the FBI.” (Doc. 13, at 13; Doc. 14, ¶¶ 3, 4, 5).
As far as Richardson alleges civil rights violation under the Fourth and Fifth Amendments, the undersigned will interpret the Complaint as alleging a claim under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 399 (1971). (Doc. 1, at 1013). Although Congress established a damages remedy under 42 U.S.C. § 1983 against state officials for violations of the federal constitution, it did not create an analogous statute for damages against federal officials. In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, however, the Supreme Court “recognized for the first time an implied private action for damages against federal officers alleged to have violated a citizen's constitutional rights.” Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001). “[A]ctions brought directly under the Constitution against federal officials have become known as ‘Bivens actions.'” Vanderklok v. United States, 868 F.3d 189, 198 (3d Cir. 2017).
Since Bivens was decided in 1971, the Supreme Court “has repeatedly refused to extend Bivens actions beyond the specific clauses of the specific amendments [of the Constitution] for which a cause of action has already been implied, or even to other classes of defendants facing liability under those same clauses.” Vanderklok, 868 F.3d at 200. As noted recently by another Court, the Supreme Court has recognized an implied private action against federal officials in only three cases:
(1) Bivens itself-“a claim against FBI agents for handcuffing a man in his own home without a warrant” under the Fourth Amendment; (2) “a claim against a Congressman for firing his female secretary” under the Fifth Amendment [due process]; and, (3) “a claim against prison officials for failure to treat an inmate's asthma” under the Eighth Amendment.Karkalas v. Marks, No. 19-1948, 2019 WL 3492232 at *7 (E.D. Pa. July 31, 2019) (internal footnotes omitted).
In order to state a claim under Bivens, a plaintiff must allege: (1) a deprivation of a right secured by the Constitution or laws of the United States; and (2) that the deprivation of the right was caused by a person acting under color of federal law. See Couden v. Duffy, 446 F.3d 483, 491 (3d Cir. 2006); Young v. Keohane, 809 F.Supp. 1185, 1199 (M.D. Pa. 1992).
Even the most generous reading of Richardson's Complaint, however, cannot overcome a conclusion that he fails to plead a legally viable Bivens claim. (Doc. 1; Doc. 15). First, sovereign immunity precludes Richardson from bringing a Bivens action against the FBI, a federal agency. FDIC v. Meyer, 510 U.S. 471, 475 (1994). Additionally, any tort claim against the United States must be brought under the Federal Tort Claims Act (“FTCA”), which creates a limited waiver of sovereign immunity for injury 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)(1). The FTCA limits the court's jurisdiction by requiring claimants to first file an administrative claim with the relevant agency and receive a written denial of the claim before suit can be filed in federal court. 28 U .S.C. § 2675(a). Richardson has not demonstrated compliance with this exhaustion requirement. (Doc. 1, at 1-18; Doc. 15, at 1-2).
Second, “[w]hile a plaintiff may assert a Bivens claim against individual federal officials acting in their individual capacities, they may not sue to recover monetary damages against federal officials in their official capacities. See Reynolds v. Fed. Bureau of Prisons, Civ. No. 093096, 2010 WL 744127, at *3 (E.D. Pa. Mar. 2, 2010). “An action against government officials in their official capacities constitutes an action against the United States and its federal agencies such as the FBI; and Bivens claims against the United States are barred by sovereign immunity, absent an explicit waiver.” Lewal v. Ali, 289 Fed.Appx. 515, 516 (3d Cir. 2008); see FDIC, 510 U.S. at 483; Lewal 289 F. App'x. at 516 (citing FDIC, 510 U.S. at 483); Jaffee v. United States, 592 F.2d 712, 717 (3d Cir. 1979); see also Consejo de Desarrollo Economico de Mexicali v. United States, 482 F.3d 1157, 1173 (9th Cir.2007) (Bivens action can be maintained against a defendant in his or her individual capacity only). Here, Richardson's Complaint does not state or infer that the John Doe FBI Agents were acting in their individual capacities, rather than their official capacities, when the alleged civil rights violations occurred. See Debrew v. Auman, 354 Fed.Appx. 639, 641 (3d Cir. 2009) (Bivens action can be maintained against defendant in individual capacity only) (citing Consejo de Desarrollo Economico de Mexicali, 482 F.3d at 1173)). Nor does the Complaint state what relief is being sought. (Doc. 1; Doc. 15). Indeed, the Complaint states no facts to establish that Richardson's rights were violated apart from unsupported allegations that John Doe FBI Agents “by show of authority cause [Richardson] to ‘submit' to their show of force and authority, by the number of federal agents that surround him by foot or vehicle (usually 30 or more) the invasion of his personal space and the length of time the detentions have occurred.” (Doc. 1, at 13). An unadorned reference to seven and a half years of being “terrorized, stalked, intimidated and deprived of his basic right to travel in the United States without a federal escort,” and various interactions with unidentified Jon Doe FBI Agents is not a sufficient description of misconduct from which the Court can construe any type of feasible civil rights violation. (Doc. 1, at 1-17; Doc. 15, at 2); see also Twombly, 550 U.S. at 555 ; Iqbal, 556 U.S. at 678.
To the extent Richardson alleges Bivens claims against the FBI or John Doe FBI Agents in their official capacities, the undersigned finds that those claims are barred by sovereign immunity. See Lewal, 289 Fed.Appx. at 516; Ojo v. Luong, 709 Fed.Appx. 113, 117 (3d Cir. 2017) (FBI agents entitled to sovereign immunity from suit under Bivens for alleged Fifth amendment violations committed in their official capacities). However, it is unclear whether Richardson may be able to assert a plausible Bivens claim against John Doe FBI Agents in their individual capacities. Accordingly, it is recommended that Defendants' motion to dismiss be GRANTED. (Doc. 12). Specifically, it is recommended that Richardson's Bivens claims against the FBI and John Doe FBI Agents in their official capacities be DISMISSED with prejudice, and that Richardson's Bivens claims against John Doe FBI Agents in their individual capacities be DISMISSED without prejudice to Richardson filing a curative amended complaint.
Defendants assert that “[s]hould the Court deny the United states' motion and find any Constitutional claim survives, the action will be left in an untenable procedural posture. The United states Attorney's office does not represent any individual defendant as none have been identified or served.” (Doc. 13, at 12 n.2). The undersigned will address this issue in a separate order.
B. Richardson's Motion to Amend
On July 12, 2022, Richardson requested leave to amend the complaint without specifying how he would amend his complaint or providing the proposed amendment. (Doc. 15). The Court recognizes that pro se plaintiffs often should be afforded an opportunity to amend a complaint before the complaint is dismissed with prejudice, unless granting further leave to amend would be futile or result in undue delay. See Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 253 (3d Cir. 2007); Alston v. Parker, 363 F.3d 229, 235-36 (3d Cir. 2004). Further, “[a] district court has ‘substantial leeway in deciding whether to grant leave to amend.'” In re Avandia Mktg., Sales Practices & Products Liab. Litig., 564 Fed.Appx. 672, 673 (3d Cir. 2014) (not precedential) (quoting Lake, 232 F.3d at 373). in this case, based on the foregoing reasons, it is recommended that Richardson's motion to amend be GRANTED so that he may cure the deficiencies outlined herein. Estelle, 429 U.S. at 106; Grayson, 293 F.3d at 108.
As discussed supra, it is recommended that Richardson's request for the Court to issue a subpoena directing the release of John Doe FBI Agents' identities be DENIED. (Doc. 15, at 3).
Specifically, it is recommended that Richardson be given the opportunity to file a curative amended complaint setting forth his Bivens claims for violations of the Fourth And Fifth Amendments against John Doe FBI Agents in their individual capacities, and his 42 U.S.C. § 1985 claims. However, the undersigned does not recommend granting Richardson leave to amend his Bivens claims for violations of the Fourth and Fifth Amendment against the FBI or John Doe FBI Agents in their official capacities, or Richardson's claims under 42 U.S.C. § 1983, the Fourteenth Amendment, the Universal Declaration of Human Rights, or the ADA as amendment would be futile. In addition, the undersigned notes that Richardson is responsible for identifying the parties named as defendants in order to effectuate service. See Fed.R.Civ.P. 4(m).
The amended complaint must be complete in all aspects and stand by itself without reference to the original complaint. See Young, 809 F.Supp. at 1198. The amended complaint must consist of concise and direct statements alleging which civil rights were violated, and the specific acts that established each violation. Mere speculation is insufficient. Richardson is advised to follow each claim with a corresponding good-faith request for relief. Moreover, an amended complaint must, pursuant to Rule 20(a), name only those Defendants implicated in the transaction or occurrence giving rise to Richardson's claims and whose involvement in the suit presents a common question of law or facts. Richardson must limit claims to those by which he has suffered actual harm due to the actions of the Defendants. Finally, Richardson must not include any extraneous information that does not directly involve an alleged act constituting a violation of a civil right.
C. Richardson's Motion for Temporary Restraining Order & Preliminary Injunction
In the motion for temporary restraining order and preliminary injunction, Richardson seeks to enjoin Defendants “from seeking to contact [Richardson] in order to intimidate, harass, stalk, terrorize by ‘sKY' by flying sonically deafening aerial objects in close proximity to [Richardson]'s physical person overheard [and] retaliating against [Richardson and] other mentally disabled persons for filing civil rights lawsuits against defendants.” (Doc. 7, at 1). Richardson contends that Defendants stalked, harassed, and terrorized him on multiple occasions for the past seven and a half years, describing one instance that allegedly occurred on April 4, 2022. (Doc. 7, at 2-3). Richardson requests that the court issue an order directing the FBi “to stop making contact with him for the purpose of stalking, harassing, intimidating [and] terrorizing him in an attempt to induce him to have a nervous breakdown,” and an order directing the FBi “to stop flying [and] pointing aerial devices, so low as it can be observed by [Richardson and] the public as being an object which is unreasonably searching [and] seizing data from him and citizens of Lackawanna county, PA.” (Doc. 7, at 4). Defendants responded to Richardson's motion in their motion to dismiss, arguing that Richardson may not obtain injunctive relief in a Bivens action and that Richardson fails to establish the requirements for the issuance of extraordinary injunctive relief. (Doc. 15, at 1314).
Federal Rule of civil Procedure 65 governs temporary restraining orders and preliminary injunctions. “The standards for a temporary restraining order are the same as those for a preliminary injunction.” Bieros v. Nicola, 857 F.Supp. 445, 446 (E.D. Pa. 1994). Preliminary injunctive relief “is not granted as a matter of right.” Kershner v. Mazurkiewicz, 670 F.2d 440, 443 (3d Cir. 1982). Rather, a “preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (internal quotations omitted). “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. NRDC, Inc., 555 U.S. 7, 20 (2008); Fulton v. City of Philadelphia, 922 F.3d 140, 152 (3d Cir. 2019). “The first two factors are prerequisites for a movant to prevail.” Holland v. Rosen, 895 F.3d 272, 286 (3d Cir. 2018). “If these gateway factors are met, a court then considers the remaining two factors and determines in its sound discretion if all four factors, taken together, balance in favor of granting the requested preliminary relief.” Reilly v. City of Harrisburg, 858 F.3d 173, 179 (3d Cir. 2017). “A plaintiff's failure to establish any element in its favor renders a preliminary injunction inappropriate.” Nutrasweet Co. v. Vit-Mar Enters., 176 F.3d 151, 153 (3d Cir. 1999).
In the instant case, as explained supra, Richardson has not stated a plausible claim against Defendants. Though it is recommended that Richardson be granted leave to file an amended complaint setting forth his Bivens claims for violations of the Fourth And Fifth Amendments against John Doe FBI Agents in their individual capacities, and 42 U.S.C. § 1985 claims, the Complaint, in its present state, does not allege facts against John Doe FBI Agents showing such deprivations. (Doc. 1; Doc. 15). The purported John Doe FBI Agents are only named in the Complaint by Richardson providing license plate numbers that he avers belong to the individual John Doe FBI Agents. (Doc. 1, at 1). Richardson does not provide any evidence in support of his assertions and fails to establish that the alleged instances of stalking, harassment, intimidation, and/or terrorization took place. It follows that Richardson cannot establish that he is likely to prevail on the merits of his claims. Moreover, with respect to the threat of irreparable harm, Richardson has not carried the burden of persuasion. He has not offered any credible basis for the Court to conclude that the issuance of extraordinary preliminary injunctive relief is necessary to prevent immediate and irreparable injury. See Holiday Inns of Am., Inc. v. B&B Corp., 409 F.2d 614, 618 (3d Cir. 1969) (“The dramatic and drastic power of injunctive force may be unleashed only against conditions generating a presently existing actual threat.”). In light of Richardson's failure to establish irreparable harm, it is unnecessary for the undersigned to address the remaining factors in the injunctive relief analysis. See Frank's GMC Truck Ctr. v. Gen. Motors Corp., 847 F.2d 100, 102 (3d Cir. 1988) (stating that injunctive relief cannot be granted where movant has not demonstrated probability of irreparable harm).
Accordingly, it is recommended that Richardson's motion for preliminary injunction be DENIED. (Doc. 7).
IV. Recommendation
Based on the foregoing, it is respectfully recommended that:
1. Richardson's motion for temporary restraining order and preliminary injunction (Doc. 7) be DENIED;
2. Defendants' motion to dismiss or, alternatively, motion for summary judgment (Doc. 12) be GRANTED in part and DENIED in part;
a. Defendants' alternative motion for summary judgment (Doc. 12) be DENIED WITHoUT PREJUDICE to their ability to renew the motion after the close of discovery;
b. Richardson's Bivens claims for violations of the Fourth and Fifth Amendments against the FBI or John Doe FBI Agents in their official capacities, 42 U.S.C. § 1983 claims, Fourteenth Amendment claims, claims under the Universal Declaration of Human Rights, and ADA claims be DISMISSED WITH PREJUDICE;
c. Richardson's Bivens claims for violations of the Fourth and Fifth Amendments against John Doe FBI Agents in their individual capacities and 42 U.S.C. § 1985 claims be DISMISSED WITHOUT PREJUDICE;
3. Richardson's motion to amend (Doc. 15) be GRANTED in part and DENIED in part.
a. Richardson's request for the Court to issue a subpoena directing release of Defendants' identities (Doc. 15, at 3) be DENIED.
b. Richardson be GRANTED thirty (30) days to file a curative amended complaint.
NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated August 26, 2022. Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
DENIED. (Doc. 15, at 3).